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Situating International Human Rights Law in an Age of Counter-Terrorism

Abstract

Youssef nada is a 77-year-old man, who lives in the tiny commune of Campione in Switzerland. He is not allowed to leave this commune. Nor can he access his financial accounts, despite being a senior figure in the world of banking. The problem Mr Nada faces is that his bank, the Al Taqwa bank, is associated with the Moslem Brotherhood and that Mr Nada—an Egyptian by birth—is also connected with this organisation. Among his adversaries is the Egyptian Government of Hosni Mubarak, which desires to get him back to Cairo, where it is clear his safety could by no means be guaranteed. After the attacks of 11 September 2001, Mr Nada also incurred the enmity of the US Government. He found himself placed on a UN sanctions black-list—hence the restrictions on his movement and financial dealings.

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1 This and the other stories of particular individuals that follow are drawn from ‘United Nations Security Council and European Union Blacklists: A report by Dick Marty, rapporteur to the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe’, doc 11454 (16 November 2007) and the addendum to that report dated 22 January 2008: see <http://assembly.coe.int/> accessed 19 August 2008.

2 See <http://www.treas.gov/offices/enforcement/ofac/actions/20071115.shtml> accessed 19 August 2008. The direct quotations are drawn from <http://jcb.blogs.com/jcb_blog/2007/11/swiss-supreme-c.html> accessed 19 August 2008.

3 The Terrorism Act (Proscribed Organisations) (Amendment) Order 2001 (SI 2001/1261), named there as Mujaheddin e Khalq.

4 Lord Alton of Liverpool (In the matter of the People’s Mojahadeen Organisation of Iran) v Secretary of State for the Home Department (PC/02/2006, 30 November 2007), para 360. See further, confirming that no appeal was possible, Secretary of State for the Home Department v Lord Alton of Liverpool [2008] EWCA Civ 443.

5 Although further grounds of appeal based on error of law are being pursued: see the debate on the issue at Hansard HC vol 472 cols 1718–25 (4 March 2008), especially the remarks of the Minister for Security, Counter-Terrorism, Crime and Policing, Tony McNulty, at cols 1723–5.

6 2005/930/EC, [2005] OJ L340/64.

7 Case T-228/02, Organisation des Modjahedines du Peuple d’Iran v Council of the European Union [2006] ECR II-4665. To similar effect is Case T-229/02, Ocalan on behalf of the Kurdistan Workers’ Party (PKK) v Council of the European Union, judgment of 3 April 2008.

8 In a Council decision of 20 December 2007: [2007] OJ L340/100.

9 Listed on 12 October 2001, issued under executive order 13224 (23 September 2001). See also s 411(a)1(G) of the USA Patriot Act.

10 <http://www.911review.org> accessed 19 August 2008.

11 The original list is to be found at [2001] OJ L67/1. Mr Kadi was added on 19 October 2001 by the Commission acting under powers set out in Art 10 of Reg 467/2001—Commission Regulation (EC) 2062/2001, [2001] OJ L277/25. The addition took effect at the same time as a decision by the UN sanctions committee to include Kadi on its list.

12 [2002] OJ L139/9.

13 Case C-117/06, Möllendorf [2007] ECR I-8361.

14 United Nations Security Council and European Union Blacklists, addendum, above n 1, at para 15.

15 Ibid, para 17.

16 20 November 1965.

17 Ibid, para 8. See generally Luck EC, UN Security Council: Practice and Promise (London, Routledge, 2006) ch 6 .

18 29 May 1968.

19 S/RES/253, para 20.

20 There is a useful broad overview in Luck, above n 17, ch 6.

21 S/RES/820 (1993), para 24.

22 (2005) 42 EHRR 1.

23 Luck, above n 17, has the details.

24 S/RES/1333 (2000), para 8(c).

25 See S/RES/1373 (2001) with its stipulation in its first paragraph that ‘all states shall … (c) freeze without delay funds and other financial assets or economic resources of persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or indirectly by such persons; and of persons or entities acting on behalf of, or at the direction of such persons and entities, including funds derived or generated from property owned or controlled directly or indirectly by such persons and associated persons and entities’. Para 1(d) went on to deal with making funds and other financial resources available for such persons. Further relevant resolutions include: S/RES/1390 (2002); S/RES/1455 (2003); S/RES/1526 (2004); S/RES/1617 (2005); and S/RES/1735 (2006). There is a good overview of the whole procedure at <http://www. un.org/sc/committees/1267/index.shtml> accessed 19 August 2008.

26 [2001] OJ L344/90.

27 [2001] OJ L344/93.

28 [2001] OJ L344/70.

29 [2001] OJ L67/1.

30 S/RES/1617 (2005), para 5.

31 Ibid, para 4.

32 The discretion is set out ibid, para 6.

33 See S/RES/1735 (2006). S/RES/1730 (2006) sets out the delisting procedure in an annex to the resolution.

34 See Marty, above n 1, para 40 of the report.

35 Art 11(2).

36 2001/931/CFSP, above n 27, para 6.

37 [2007] OJ C/144 (29 June 2007) 1.

38 See 2007/868/EC, [2007] OJ L340/100, recitals 4 and 5 for the details.

39 Above n 1, para 45.

40 Ibid.

41 ‘Targeted Sanctions and Due Process. The Responsibility of the UN Security Council to Ensure that Fair and Clear Procedures are made Available to Individuals and Entities Targeted with Sanctions under Chapter VII of the UN Charter’ (Berlin, Humboldt University, 20 March 2006) 5.

42 ‘The European Convention on Human Rights, Due Process and the United Nations Security Council Counter-Terrorism Sanctions’ (Strasbourg, Council of Europe, 6 February 2006) 3.

43 Oberleitner G, Global Human Rights Institutions (Cambridge, Polity, 2007).

44 Ibid, 152.

45 See R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58, [2008] 1 AC 332. However, see the remarkable first instance decision of A, K, M, Q and G v Her Majesty’s Treasury [2008] EWHC 869 (Admin), where Collins J was highly critical of the blacklisting system, insisting that the UN’s demands in these cases be implemented in a more democratic way than through the kind of secondary legislation that was before the Court and suggesting (at para 36) that in appropriate cases there may be a legal obligation on the UK Government to pursue a delisting application before the Security Council.

46 Dickens C, Bleak House (London, Bradbury and Evans, 1853).

47 Bosphorus v Ireland, above n 22, paras 155–6, citing Loizidou v Turkey (preliminary objections) (1995) 20 EHRR 99, para 75.

48 Case T-315/01, Yassin Abdullah Kadi v Council of the European Union [2005] ECR II-3649; and Case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v Council of the European Union [2005] ECR II-3353.

49 Ibid: Yusuf, para 276; and Kadi, para 225.

50 Ibid: Yusuf, para 267; and Kadi, para 216.

51 Ibid: Yusuf, paras 277–82; and Kadi, paras 22–32.

52 Case C-402/05 P, Yassin Abdullah Kadi v Council of the European Union and Commission of the European Communities.

53 Joined Cases C-402/05 P & C-415/05 P Kadi & Al Barakaat International Foundation v Council and Commission, judgment of 3 September 2008.

54 See Behrami and Behrami v France; Saramati v France, Germany and Norway (App nos 71412/01 and 781/66/01) (2007) 22 BHRC 477 (ECHR).

55 See M v Her Majesty’s Treasury [2006] EWHC 2328 (Admin), [2007] EWCA Civ 173; and R (Al-Jedda) v Secretary of State for Defence, above n 45. The Swiss Courts have taken the same line in the Nada case: see Marty, addendum, above n 1, para 3. The one exception is A, K, M, Q and G v Her Majesty’s Treasury, above n 45.

56 Convention on the Physical Protection of Nuclear Material.

57 International Convention for the Suppression of Terrorist Bombings.

58 Ibid, Art 2(1)(b).

59 There is a useful, albeit not quite up-to-date, summary at <http://cns.miis.edu/pubs/inven/pdfs/intlterr.pdf> accessed 19 August 2008.

60 Above n 25.

61 Ibid, para 6.

62 Ibid.

63 Ibid, para 3(f).

64 In a briefing to the Security Council on 18 January 2002, the first chair of the CTC, Jeremy Greenstock, had this perspective on the work of the Committee: ‘The Counter-Terrorism Committee is mandated to monitor the implementation of resolution 1373 (2001). Monitoring performance against other international conventions, including human rights law, is outside the scope of the Counter-Terrorism Committee’s mandate … It is, of course, open to other organisations to study States’ reports and take up their content in other forums’: <http://www.un.org/sc/ctc/humanrights.shtml> accessed 19 August 2008.

65 See Office of the United Nations Commissioner for Human Rights, ‘Note to the Chair of the Counter-Terrorism Committee: A Human Rights Perspective on Counter-Terrorist Measures’ (September 2002): http://www.un.org/sc/ctc/documents/ohchr1.htm. Address by the United Nations High Commissioner for Human Rights Sergio Vieira de Mello to the Counter-Terrorism Committee, 21 October 2002: http://www.un.org/Docs/ctc/humanrights.shtml http://www.un.org/Docs/ctc/humanrights.shtml.

66 S/RES/1535 (2004) (26 March 2004). The resolution established the CTCED to operate until December 2007. Its period was extended to 31 March 2008 by S/RES/1787 (2007) and has since been further extended: see below n 90.

67 This was one of the intentions behind setting the CTCED up: see ‘Proposal for the Revitalisation of the Counter-Terrorism Committee’ para 7(d)—the note is to be found as an annex to the letter of the chair of the CTC to the president of the Security Council dated 19 February 2004—see S/2004/124.

68 S/RES/1456 (2003).

69 Ibid, para 4 (iii).

70 Ibid, para 6.

71 S/RES/1624 (2005).

72 Commission on Human Rights Resolution 2005/80.

73 Commission on Human Rights, 62nd session, Promotion and Protection of Human Rights E/CN.4/2006/98.

74 Ibid, para 56.

75 Ibid, para 56(a).

76 Ibid, para 56(b).

77 Ibid, para 56(c).

78 Ibid, para 56(d).

79 Ibid, para 56(e).

80 Ibid, para 57.

81 Ibid, para 58.

82 Ibid, para 59.

83 Ibid, para 60.

84 Ibid, para 62.

85 Ibid, para 60 (footnotes omitted).

86 Ibid.

87 S/2005/800.

88 S/AC.40/2006/PG.2.

89 And see also Rosand E, Millar A and Ipe J, The UN Security Council’s Counterterrorism Program: What Lies Ahead? (New York, International Peace Academy, 2007) for some similar conclusions. This report also suggests a greater emphasis generally on human rights: see 15–17 and the recommendation at 23.

90 Now confirmed: S/RES/1805 (2008). The CTCED has been renewed until 31 December 2010.

91 See the letter from the chair of the CTC to the president of the Security Council dated 7 February 2008: S/2008/80. The letter contains in an annex a letter from the executive director of the CTCED to the chair of the CTC, and that letter encloses an annex: Organisational Plan for the Counter-Terrorism Committee Executive Directorate. Para 2(a)–(f) sets out the ‘Priorities of the CTCED’ and here there is no mention of human rights at all. Nor does it appear in the two new priorities suggested at para 3. There is a reference to the existence of the policy guidance (see above n 88) in para 4, but this is not phrased directly as a priority. The further new priorities set out in para 6 also contain nothing on human rights. While there is a proposal to establish a ‘cross-cutting technical group’ (one of five) on ‘issues raised by Resolution 1624 (2005); as well as the human rights aspects of counter-terrorism in the context of Resolution 1373 (2001)’ (para 15), the remit here would appear to be drawn deliberately tightly. On the other hand, the reality may be broader in light of para 19’s recognition of the need for the supply of general advice. The briefing to the Security Council that the CTCED executive directorate Mike Smith gave on 19 March 2008 (see S/PV.5855) contained little additional mention of human rights. In the debate that followed, the subject hardly appears, with mention of it being made by the representatives from Burkina Faso and Belgium, but few other speakers. It is to be hoped that the new working group on the human rights aspects of counter-terrorism which Mr Smith has created within the CTED, and to which he referred in his 19 March briefing will gradually come to have an impact on the work of the directorate.

92 The Communique of the Seventh Meeting of Heads of Special Services, Security Agencies, and Law Enforcement Organisations, 27–8 March 2008, held in Russia and involving no fewer than 54 states and various international bodies (not including any from the human rights sector), made no mention of human rights: <http://www.un.org/sc/ctc/otherstatements/shtml> accessed 19 August 2008.

93 Of general interest in this regard is the recent report from the Austrian Federal Ministry for European and International Affairs together with the Institute for International Law and Justice at New York University School of Law, ‘The UN Security Council and the Rule of Law. The Role of the Security Council in Strengthening a Rules-based International System’ (February 2008).

94 See now The Judge Over Your Shoulder, A Guide to Judicial Review for UK Government Administrators 4th edn (London, Treasury Solicitors, 2006), with a foreword by Cabinet Secretary SirO’Donnell Gus .

95 The latest efforts at improving the process are anticipated in Security Council Report Update Report, ‘1267 Committee: Al-Qaida/Taliban Sanctions’ (21 April 2008).

96 See, in particular, the report of the Committee on Legal Affairs and Human Rights to the Parliamentary Assembly of the Council of Europe, ‘The Accession of the European Union/European Community to the European Convention on Human Rights’ (Doc 11533, 18 March 2008).

97 Recommendation 1824 (2008): <http://assembly.coe.int/> accessed 19 August 2008.

98 This is one of the main emphases of a recent, excellent report from the Centre for Global Counterterrorism Cooperation: Rosand E, Millar A and Ipe J, Human Rights and the Implementation of the UN Global Counter-Terrorism Strategy: Hopes and Challenges (Centre for Global Counterterrorism Cooperation, 2008), available at <http://www.globalct.org/images/content/pdf/reports/human_rights_report.pdf> accessed 19 August 2008.

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