Security measures taken in the name of the ‘war on terror’ have frequently been understood to operate through a domain of exception, defined as an extra-legal space of intervention where normal rules of juridical protection and due process are suspended. Yet whilst most analyses of the exception are critically reliant on notions of legal threshold, they are largely dismissive of the potentially productive nature of legal contestation. This article inquires into the dynamic confrontation between law and exception in the context of the UN 1267 sanctions system, focusing on the Office of the Ombudsperson as an institutional experiment designed to remedy the fundamental rights deficiencies of the regime. Drawing on Agamben's analysis of the exception as a ‘hybrid space’ and Dyzenhaus's concept of the ‘legal grey hole’, our analysis of the Ombudsperson demonstrates the emergence of novel, hybrid procedures and evidentiary standards being deployed in the 1267 delisting process. First, we assess the Ombudsperson's logics of decision-making and argue that their appeals to fairness hinge on the production of a temporal chasm that legitimizes the deployment of intelligence material in listing cases. Second, we show that the Ombudsperson is in the process of carving out novel evidential standards that are more attentive to notions of inference and speculation than conventional standards of proof. These standards serve to fortify the use of sanctions as a pre-emptive security measure and do not, in principle, appear to exclude material that may be obtained by torture.
1 G. Agamben, The State of Exception (2005); J. Edkins, V. Pin-Fat, and M. Shapiro (eds.), Sovereign Lives: Power in Global Politics (2004).
2 Aradau, C. and van Munster, R., The Politics of Catastrophe (2011); Kessler, O. and Werner, W., ‘Extrajudicial Killing as Risk Management,’ (2008) 39 (2–3) Security Dialogue 289; Krasmann, S., ‘Law's Knowledge: On the Susceptibility and Resistance of Legal Practices to Security Matters’, (2012) 16(4) Theoretical Criminology 379.
3 Although Schmitt strongly influences Agamben's work on the exception, a proper review of Schmitt (though deserved) is beyond the limited scope of this paper. For Agamben's reliance on Schmitt, see principally Agamben, G., Homo Sacer: Sovereign Power and Bare Life (1998), 15–29; and Agamben, supra note 1.
4 Agamben, supra note 1, at 4.
5 Neal, A., Exceptionalism and the Politics of Counter-Terrorism: Liberty, Security and the War on Terror (2009), 96.
6 Humphreys, S., ‘Legalizing Lawlessness’, (2006) 27(3) European Journal of International Law 677, at 684.
7 Macklin, A., ‘The Rule of Law, the Law of Men, and the Rule of Force’, in Williamson, J., (ed.), Omar Khadr, Oh Canada (2012), 226.
9 Amoore, L., ‘Risk before Justice: When the Law Contests Its Own Suspension’, (2008) 21(4) Leiden Journal of International Law 847.
10 Neal, supra note 5, at 124.
11 Unless indicated otherwise (through direct citation), we use the terms ‘Office of the Ombudsperson’ and ‘Ombudsperson’ interchangeably throughout this paper to refer to the procedural mechanism for delisting enacted by S/RES/1904 (2009) rather than the individual office-bearer (Ms Kimberley Prost) herself.
12 See, for example, M. Scheinin, Human Rights/Counter Terrorism: The New UN Listing Regimes for the Taliban and Al-Qaida - Statement by the Special Rapporteur on Human Rights and Counter Terrorism, available at: www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11191&LangID=E; Forcese, C. and Roach, K., ‘Limping into the Future: The UN 1267 Terrorism Listing Process at the Crossroads’, (2010) 42 George Washington International Law Review 217; Tünde Huber, K. and Rodiles, A., ‘An Ombudsperson in the United Nations Security Council: A Paradigm Shift’, (2012) Anuario Mexicanode Derecho Internacional: Décimo Anniversario 107; Kirschner, A. J., ‘Security Council Resolution 1904 (2009): A Significant Step in the Evolution of the Al-Qaida and Taliban Sanctions Regime?’, (2010) 70 ZaöRV 585; Kokott, J. and Sobotta, C., ‘The Kadi Case – Constitutional Core Values and International Law – Finding the Balance’, (2012) 23(4) European Journal of International Law 1015; and Tladi, D. and Taylor, G., ‘On the Al Qaida/Taliban Sanctions Regime: Due Process and Sunsetting’, (2011) 10 Chinese Journal of International Law 771.
13 Saul, B., ‘Terrorism and International Criminal Law: Questions of (In)coherence and (Il)legitimacy’, in Boas, G., Schabas, W. A., and Scharf, M. P. (eds.) International Criminal Justice: Legitimacy and Coherence (2012).
14 K. L. Scheppele, ‘The International State of Emergency: Challenges to Constitutionalism after September 11’, (21 September 2006) Yale Legal Theory Workshop (unpublished manuscript).
15 Agamben, supra note 3, at 27.
16 Agamben, supra note 1, at 23 (emphasis added). This is one of Agamben's key points of departure from Carl Schmitt, who sought to rigidly distinguish norm from exception so as to preserve a space for sovereign decision. Whilst Agamben relies heavily on Schmitt, he critiques him for ‘fallacious[ly] . . . seek[ing] to inscribe the state of exception indirectly within a juridical context by grounding it in the division between . . . norm and decision’. Agamben, supra note 1, at 50–1. For a good analysis of Agamben's approach to Schmitt see Zartaloudis, T., Giorgio Agamben: Power, Law and the Uses of Criticism (2010), 95–143.
17 Agamben, G., Means without End: Notes on Politics (2000), 36.
18 Agamben, supra note 3, at 170 (emphasis in original).
19 Hope, D., ‘Torture’, (2004) 4 International and Comparative Law Quarterly 807.
20 Paust, J., ‘Post 9/11 Overreaction and Fallacies regarding War and Defense, Guantanamo, the Status of Persons, Treatment, Judicial Review of Detention and Due Process in Military Commissions’, (2004) 79 Notre Dame Law Review 1335, at 1346.
21 Koh, H., ‘On American Exceptionalism’, (2003) 55 Stanford Law Review 1479, at 1509. Harold Koh subsequently became the State Department Legal Adviser for the Obama administration, where (until stepping down in January 2013) he publicaly and legally justified the US targeted killing program on an exceptional basis. See, for example, H. Koh, Legal Adviser, US Dep't of State’. Address at the Annual Meeting of the American Society of International Law (25 March 2010).
22 Agamben, supra note 1, at 4.
23 W. Connolly, ‘Complexity of Sovereignty’, in Edkins, Pin-Fat, and Shapiro, supra note 1; Gregory, D., ‘The Black Flag: Guantanamo Bay and the Space of Exception’, (2006) 88 (4)Geografiska Annaler 404; Johns, F., ‘Guantánamo Bay and the Annihilation of the Exception’, (2005) 16(4) European Journal of International Law 613.
26 Aradau, C., ‘Law Transformed: Guantanamo and the “other” exception’, (2007) 28(3) Third World Quarterly 489, at 491. For a good example see Gregory, supra note 23.
27 Scheppele, supra note 14, at 51.
28 Honig, B., Emergency Politics: Paradox, Law, Democracy (2011), 1.
29 Ibid, at 10.
30 Foucault, M., ‘The Subject and Power’, (1982) 8(4) Critical Inquiry 777, at 780.
31 See, for example, Agamben, supra note 3, at 20.
32 See, for example, Belcher, O. et al., ‘Everywhere and Nowhere: The Exception and the Topological Challenge to Geography’, (2008) 40(4) Antipode 499. M. Dillon, ‘Correlating Sovereign and Biopower’, in Edkins, Pin-Fat, and Shapiro, supra note 1, at 55.
33 Agamben, supra note 1, at 50–1.
34 Dyzenhaus, D., The Constitution of Law: Legality in a Time of Emergency (2006), 60.
35 Ibid., at 61.
36 Ibid., at 201.
37 Ibid., at 3. Crucially, for Dyzenhaus (following Dicey) ‘it is possible to use rule by law to take one right off the continuum of legality’, at 201. Thus, whilst laws creating black holes might be legally valid in the positive sense, they may lack the legitimacy of law properly so called.
38 Ibid., at 215, 211.
39 Ibid., at 3.
40 Ibid., at 206.
41 For example, by ‘afford[ing] those affected by some public decision the opportunity to have their cases properly heard’. Dyzenhaus, D., ‘The Rule of (Administrative) Law in International Law’, (2005) 68 Law and Contemporary Problems 127, at 152.
42 Ibid., at 128, 162.
43 Ibid., at 152, 162.
44 ‘Associated with’ is the applicable standard in relation to the 1267 sanctions. S/RES/2083 (2012) most recently broadened the standard to include association with someone on the 1267 list – that is, association with an associate.
45 If Chapter VII resolutions come into conflict with any other international agreement or domestic rule of law, Art. 103 of the UN Charter stipulates that states must ensure that their Chapter VII obligations are given priority. For an overview of state obligations regarding Art. 103, see Case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the EU and Commission of the EC,  ECR II-3533, at para. 206; Case T-315/01, Yassin Abdullah Kadi v. Council of the EU and Commission of the EC,  ECR I-3649, at para. 153.
46 de Goede, M., ‘Blacklisting and the Ban: Contesting Targeted Sanctions in Europe’, (2011) 42(6) Security Dialogue 499; Sullivan, G. and Hayes, B., Blacklisted: Targeted Sanctions, Preemptive Security and Fundamental Rights (2010).
47 UN 1267 Sanctions Committee, Guidelines of the Committee for the Conduct of Its Work (30 November 2011), at para. 6(d).
48 That is, access to a review mechanism that is accessible and independent and affords individuals the opportunity to contest the allegations and put forward their case. See variously Art. 8 UDHR; Art. 2(3) ICCPR; Arts. 6 and 13 ECHR.
49 B. Emmerson, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, UN Doc. A/67/396 (2012), at para. 14.
50 Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat International Foundation v. Council and Commission,  ECR I-6351 (hereafter, the Kadi case). See also T-85/09, Kadi v. Commission,  OJ C317, 29 (hereafter, the Kadi 2010 case). The literature concerning this litigation is vast. For a succinct overview of the procedural history of the case, see Sullivan and Hayes, supra note 46, at 57–61.
51 For Biersteker and Eckert: ‘There is a real, and growing, political problem associated with the legitimacy, not only of the instrument of targeted sanctions, but increasingly of actions taken under Chapter VII by the UN Security Council itself. This is a fundamental challenge to an essential instrument of the international community to counter threats to international peace and security’ (emphasis added). See Addressing Challenges to Targeted Sanctions: An Update of the ‘Watson Report’ (October 2009), at 4.
52 Kadi-like decisions and orders have indeed been recently issued by the EU courts in relation to the Côte d’Ivoire, Iran, and Burma sanctions regimes. See, for example, Case C-417/11P, Council of the European Union v. Nadiany Bamba,  OJ C 311; Joined Cases T-439/10 and T-440/10, Fulmen and Fereydoun Mahmoudian v. Council,  OJ C 133, 24; and C-376/10 P, Tay Za v. Council,  OJ C 133, 6. The EU now tends to delist parties before the EU courts have the opportunity to adjudicate. See, for example, Case T-436/11, Afriqiyah Airways v. Council,  OJ C 08, 24; Case T-285/11, Charles Kader Gooré v. Council,  OJ C 49, 24.
54 See US Embassy Cable 10USEUBRUSSELS212, (24 February 2010).
55 In private interviews undertaken between the first author and various members of the UN 1267 Sanctions Committee, October 2012. See also UN Doc. S/PV.6557 (2011): ‘The improvements made to . . . the sanctions regime against Al-Qaeda allow us to respond to the criticisms that have been made, including by judicial authorities in Europe and elsewhere’, at 5.
56 Dyzenhaus, supra note 34.
57 This approach has been refuted, however, by the European Court of Justice's 2013 appeal decision in the Kadi case – see Joined Cases C-584/10 P, C-593/10 P, C-595/10 P, United Kingdom v. Kadi (18 July 2013) [unreported]. See also A. G. Bot, Opinion in Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Commission, Council and United Kingdom v. Kadi, (19 March 2013) [unreported].
58 See, respectively: UK intervention at the Interactive Dialogue with Ben Emmerson, Special Rapporteur on the Promotion and Protection of Human Rights while Countering Terrorism (2 November 2012), available at: www.ukun.fco.gov.uk/en/news/?view = PressS&id = 830740482; 12th and 13th Report of the 1267 Monitoring Team, at paras. 32 and 11 respectively; Fourth Report of the Ombudsperson to the Security Council, UN Doc. S/2012/590 (2012), at paras. 30–32; and Biersteker, T. and Eckert, S., Due Process and Targeted Sanctions: An Update of the Watson Report (2012).
59 See, in particular, Kadi 2010, supra note 50; Emmerson, supra note 49, at para. 35; M. Scheinin, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, UN Doc. A/65/258 (2010).
60 Interview with UN 1267 Ombudsperson, New York, 5 November 2012 (by G. Sullivan). Unless indicated otherwise, all subsequent references to the Ombudsperson in this paper originate from this interview.
63 Office of the Ombudsperson, Approach to and Standard for Analysis, Observations, Principal Arguments and Recommendations (2011), available at: www.un.org/en/sc/ombudsperson/approach.shtml.
64 Prost, supra note 60.
65 See, for example, L. Ginsborg and M. Scheinin, ‘Judicial Powers, Due Process and Evidence in the Security Council 1267 Terrorist Sanctions Regime: The Kadi II Conundrum’, (2011) EUI Working Papers: RSC: ‘Such intelligence may be discussed bilaterally between concerned member states of the Security Council in advance of reaching consensus on a particular listing but is actually not presented collectively to the 1267 Committee as a whole’, at 9–10. US Embassy cables released by Wikileaks corroborate this view. See, for example (i) 10BRUSSELS219: where lawyers of the European Council speak of the ‘multiple cases involving UN designations’ before the EU courts where both ‘EU institutions have little or no [supporting] information’ and (ii) 09ROME652: where it is explained that ‘on behalf of the US, Italy had proposed numerous candidates for designation’ on the 1267 list ‘about which they knew little’ and that they will have difficulty justifying their listing decisions ‘unless they get . . . [background] information’ from the US government.
66 Chesterman, S., ‘The Spy Who Came in from the Cold War: Intelligence and International Law’, (2006) 27 Michigan Journal of International Law 1071, at 1115; Baehr-Jones, V., ‘Mission Possible: How Intelligence Evidence Rules Can Save UN Terrorist Sanctions’, (2011) 2 Harvard National Security Journal 447.
67 Prost, supra note 60.
68 Ibid. (emphasis added.)
69 Kadi 2010, supra note 50, at para. 157.
70 Prost, supra note 60 (emphasis added).
72 Biersteker and Eckert, supra note 58, at 24.
73 The Committee does have a nominal obligation (under S/RES/2083 (2012), Annex II, para. 14) to set out its reasons to the Ombudsperson who can, in turn, provide those reasons to the petitioner. However, in practice this reasoning is both minimal and generic and far less specific than even the vague and imprecise allegations contained in the Narrative Summary. In one successful delisting application handled by the first author, for example, the sole reason provided by the Committee for delisting an individual (who had been targeted for more than eight years) was that: ‘There is nothing in the Petitioner's personal circumstances to indicate that his lack of current involvement with Al-Qaida is attributable to anything other than a personal choice’.
74 Press Conference on Security Council Al-Qaida and Taliban Sanctions Committee, 2 August 2010, available at: www.un.org/News/briefings/docs/2010/100802_Sanctions.doc.htm.
75 R. Barrett, ‘The United Nations and Terrorism: The 1267 Sanctions Regime Directed against Al-Qaida, the Taliban and Their Associates’, RCAS Policy Papers 2011/03: European and United States Counter-terrorism policies, the Rule of Law and Human Rights, at 8: Barrett – the Co-ordinator of the UN 1267 Monitoring Team – specifically argues that the time for a ‘reassessment’ of the sanctions regime is overdue and has advocates for the list to be pared down to an absolute minimum to include ‘only the best known terrorists and their supporters, against whom there [is] clear evidence of . . . complicity in terrorism’, excluding those who have either ‘no symbolic value [or] no assets’.
76 11th Report of the 1267 Monitoring Team, UN Doc. S/2011/245 (2011), at para. 30 (emphasis added).
77 In March 2012 the US District Court for the District of Columbia refused Kadi's application for removal from the US Specially Designated Terrorist (SDGT) List on the grounds that his designation was ‘amply supported’ by both open and closed evidence demonstrating support for al Qaeda. Yet in October 2012 the UN 1267 Sanctions Committee (of which the US is the influential permanent member) approved Kadi's removal from the 1267 list despite the fact that the Ombudsperson had more fragmentary and limited access to the evidence than did the US Courts. This incongruence highlights the relative autonomy of the Sanctions Committee vis-à-vis the Ombudsperson and the broader political motivations that animate their delisting decisions. See Kadi v. Geithner, Case No. 09–0108 (Memorandum Opinion 19 March 2012) and UN Doc. SC/10785, available at: http://www.un.org/News/Press/docs//2012/sc10785.doc.htm.
78 If reliance on secret evidence is the core problem underpinning the sanctions regime, for example, then endorsement of the Ombudsperson's delisting process by the European Court is critical to its resolution.
79 Supra note 57.
80 Walker, N., ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of Normative Orders’, (2008) 6(3–4) International Journal of Constitutional Law 373.
81 Scheppele, supra note 14, at 6.
82 Emmerson, supra note 49, at paras. 20–21.
83 Ibid., at paras. 56–57.
84 Supra note 63.
86 Emmerson, supra note 49, at para. 55.
87 Prost, supra note 60.
88 Ibid.; Preamble to S/RES/2083 (2012).
89 Prost, supra note 60.
90 Kadi 2010, supra note 50, at paras. 157, 177.
91 Prost, supra note 60. According to the Ombudsperson: ‘sometimes they will say, “This is the only way we would allow that information to be put” or I might say “I’m going to ask this question, is that okay?”’.
92 Letter from the Like-Minded Lawyers to UN Special Rapporteur on Countering Terrorism, 13 August 2013, Questions Concerning the 1267/1989 Al Qaida Sanctions Committee, the Ombudsperson and the De-Listing Process (copy with authors). The first author was one of the six joint authors of this correspondence.
93 Ibid. (emphasis added).
94 For an excellent analysis of the problems of secret evidence in this context, see Forcese and Roach, supra note 12. See also Murphy, C., ‘Secret Evidence in EU Security Law: Special Advocates before the Court of Justice?’, in Cole, D., Fabbrini, F., and Vedaschi, A. (eds.), Secrecy, National Security and the Vindication of Constitutional Law (2013).
95 A v. Secretary of State for the Home Department (No 2),  UKHL 71, at para. 59.
96 Supra note 92.
97 Mr Abdelrazik's Narrative Summary alleged that he ‘was closely associated with Abu Zubaydah’, thought to be an al Qaeda operative, but as the American government has conceded elsewhere, it caused Mr Zubaydah to be waterboarded (i.e. tortured) at least 83 times during August 2002.
98 Emmerson, supra note 49, at para. 47.
99 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), Art. 15. For decisions concerning the exclusion of torture evidence at the domestic level see A and Others (No. 2), supra note 95; Oberlandesgericht (OLG), OLG Hamburg, Decision of 14 June 2005, reprinted in (2005) 58 Neue Juristische Wochenzeitschrift 2326; Hamdan v. Rumsfeld, 548 US 577.
100 Emmerson, supra note 49, at para. 49.
101 See, for example, O. Bowcott, ‘UN “May Use Torture Evidence to Impose Sanctions on Terror Suspects”’, The Guardian, 11 November 2012.
102 Prost, supra note 60. (emphasis added).
103 For a brief professional biography of the current Ombudsperson (Ms Kimberly Prost) see: http://www.un.org/en/sc/ombudsperson/bio.shtml.
104 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. Rule 89 (C)–(D), UN Doc. IT/32/Rev. 42 (1994) (amended 4 November, 2008) and Rule 89 (D). According to Baehr-Jones, the adoption of such a standard would ‘allow the UN to initiate judicial review of 1267 designations’ by freeing states to rely on illegally obtained evidence and withhold information that does not originate with them, thus encouraging the disclosure of classified material to the Sanctions Committee and ‘provid[ing] those designated with access to the intelligence evidence used against them’. However, Baehr-Jones does not countenance the ways such a standard may facilitate the institutional reliance on torture material. See Baehr-Jones, supra note 66, at 481.
105 See Ambos, K., ‘The Transnational Use of Torture Evidence’, (2009) 42 Israel Law Review 362.
106 See J. Méndez, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc. A/HRC/16/52 (2011), at para. 536.
107 Prost, supra note 60.
108 Forcese and Roach, supra note 12.
109 K. Prost, ‘Approach to the Assessment of Information, Including Information Alleged to Have Been Obtained by Torture’, available at: http://www.un.org/en/sc/ombudsperson/approachtoinfo.shtml.; Fifth Report of the Ombudsperson to the Security Council, UN Doc. S/2013/71 (2013), at para. 57.
110 A and Others (No. 2), supra note 95, at para. 59 (emphasis added).
111 See, for example, the comments of Justice Zinn in Abdelrazik v. Canada, 2009 FC 580, at para. 53.
112 Preamble of S/RES/1989 (2011).
113 Secretary of State for the Home Department v Rehman,  UKHL 47, at para. 56 (emphasis added).
114 Dyzenhaus, supra note 41, at 164.
115 Dyzenhaus, supra note 34, at 211.
116 Agamben, supra note 3, at 20.
117 For Dyzenhaus, grey holes function more ‘like a rubber stamp . . . than a forum in which executive claims are properly tested’. Dyzenhaus, supra note 34, at 3. For the notion of emergency law sliding ‘off the continuum of legality’ see Dyzenhaus, supra note 37.
118 As Forcese and Roach point out, supra note 12, the 2010 Kadi decision (and the problem of ‘intelligence as evidence’ underpinning it) has facilitated a deepening disconnect between UN and domestic legal systems that will in turn stimulate further legal conflict, fragmentation, and pluralism.
119 Including, inter alia, the outcome of the plethora of Iranian sanctions cases currently proceeding before the EU courts (most of which similarly rely on classified material: supra note 52) and the ongoing impact of the reform recommendations made by the UN Special Rapporteur on Countering Terrorism in his September 2012 report to the UN General Assembly (Emmerson, supra note 49).
120 For Dyzenhaus, institutional experiments (such as SIAC) that require executives to justify their acts to an independent tribunal are consistent with the spirit of legality if they have access to all relevant information said to justify the decision. The Ombudsperson, however, does not have such comprehensive access to closed material and (given her lack of decision-making power) cannot in any way approximate an independent tribunal. See Dyzenhaus, supra note 34, at 204–5.
* Gavin Sullivan, Solicitor and Doctoral Researcher, Department of Political Science, University of Amsterdam [Sullivan@uva.nl]. Marieke de Goede, Professor of Political Science, University of Amsterdam [M.deGoede@uva.nl]. Financial support for this research was provided by the Dutch Council for Scientific Research (NWO), through the VIDI-grant ‘European Security Culture’, award number 452-09-016. The authors would like to thank three anonymous reviewers for LJIL for their insightful comments, as well as Marijn Hoijtink, Rens van Munster, Stephanie Simon’ and Jessica Whyte. Special thanks to Tanja Aalberts and Anna Leander for their detailed reading of previous versions of the article.
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