UN law
Coming up trumps
Jan 31st 2008
From The Economist print edition
The UN's little-known terrorist watchlist is alarmingly arbitrary and seductive. It faces a legal challenge in Europe
GUANTÁNAMO has become a byword for the sacrifice of civil liberties in America's “war on terror”. But there is another, rarely talked-about way in which potentially innocent people are severely punished, while being deprived of any right to hear or challenge the allegations against them. Worse, they stand even less chance of escaping this fate than they do of being released from Guantánamo Bay. The legal oubliette in question is the United Nations' terrorist watchlist.
Set up by the Security Council in 1999 at the behest of the United States, but greatly expanded after the September 2001 terrorist attacks, the so-called “consolidated list” includes 370 individuals and 112 outfits suspected of having links with the Taliban or al-Qaeda. All are subject to a world-wide freeze on their assets, save for basic living expenses, along with a total travel ban outside their country of residence.
Getting onto the list is relatively easy, requiring a unanimous vote by the Security Council's sanctions committee (identical in membership to the Council itself). Any UN member state can submit a name.
Getting off is a lot more difficult. Requests for delisting have to be made either directly to the sanctions committee or through the affected person's country of birth or residence, and the burden of proof lies with the petitioner. The petitioner has to convince the same people who previously held him to be guilty that he is innocent—a particularly onerous task when he has no access to the information that led to his inclusion on the list in the first place. In the list's eight-year history, only 11 people and 24 organisations have been removed.
Two cases now before the European Court of Justice could change this. One was brought by Sheikh Yassin Abdullah Kadi, a prominent Saudi businessman; the other by the al Barakaat International Foundation (based in Sweden, it is part of a big Somali organisation dealing with cross-border money transfers). Both have been on the UN's terrorist blacklist (and had all their assets frozen) for the past six years, even though no one has ever succeeded in bringing criminal charges against either of them.
Under Article 103 of the UN Charter, Security Council resolutions generally take precedence over all other laws, domestic and international. Only in cases involving jus cogens—the most fundamental principles of international law, such as the ban on torture or slavery—does this rule not apply. The Security Council could not, for example, order genocide.
This supremacy of UN law was recently reaffirmed by the House of Lords, Britain's highest court, in a human-rights case brought by Hilal al-Jedda, a man of joint Iraqi-British nationality held by British forces in Iraq. He claimed that his detention violated his right to liberty under the European Convention on Human Rights. Britain countered that, as part of a multinational force authorised by the UN, its troops were entitled to take such action. In a unanimous ruling in December, the law lords agreed, declaring that Security Council resolutions trumped the convention.
But in a potentially ground-breaking “opinion” to the European Court of Justice in the al Barakaat case on January 23rd, Poiares Maduro, one of the court's eight independent “advocates-general” (with a rank equivalent to that of a judge), argued that the court cannot “turn its back on the fundamental values that lie at the basis of the [EU's] legal order and which it has the duty to protect.” Where those values were at stake, the court might have to annul Security Council measures, he said.
Mr Maduro also says that even when such measures were intended to suppress terrorism, this “should not inhibit the court from fulfilling its duty to preserve the rule of law”. In doing so, it would not, as a lower EU court had argued, be “trespassing into the domain of politics”, but “reaffirming the limits that the law imposes on certain political decisions”.
Although the prevention of international terrorism might sometimes justify restrictions on an individual's right to property, it did not remove the need to demonstrate why those measures were being applied to that particular person or entity. Delivering a similar opinion in Mr Kadi's case, he said that imposing sanctions with such “potentially devastating” consequences on someone who might be totally innocent was “anathema in a society that respects the rule of law”.
The Security Council's terrorist watchlist has already come under fire. The UN's own watchdog on human rights argues that if good reasons exist for imposing sanctions on someone, he should be prosecuted. The UN replies that it is not always possible to gain the necessary evidence to gain a conviction in court. The sanctions, it says, are intended to be “preventative” rather than punitive, aimed at stopping any potential future support for terrorism. It is the right to do that, without due process, that Mr Maduro is now challenging.
The EU has its own watchlist for suspected terrorists unrelated to the Taliban or al-Qaeda; it imposes an asset freeze (though not a travel ban) on 54 individuals and 48 groups. Anyone on the list must be approved by a unanimous vote by all 27 members of the EU's Council of Ministers. Unlike most of those on the UN's list, however, all must either have been convicted of a terror-related offence or be subject to prosecution. And all have a right to challenge their inclusion on the list—at national level, to the council or to the European Court of Justice.
Mr Maduro's opinion to the court marks the first substantive legal challenge to the fundamental assumption on which the UN's watchlist is based—namely that where world peace and security are at stake, virtually anything goes so long as it has the blessing of the world's great powers. An advocate-general's opinion is not, of course, the same as a ruling. The court still has to decide whether to accept Mr Maduro's advice. In the past, it has followed such opinions in about 80% of cases. But in potentially precedent-setting cases, such as those of Mr Kadi and al Barakaat, its reaction, expected by the summer, is much harder to predict. At the UN's headquarters in New York, the securocrats are increasingly twitchy.
http://www.economist.com/world/inter...ry_id=10608577