A senior State Department official recently characterized the Obama administration's approach to international counterterrorism policy thus:

This approach, the official added, will be underscored at the United Nations as well. There is no doubt that the Obama administration steers a different course on human rights and counterterrorism than its predecessor. Its immediate and explicit ban on torture, the closure of secret CIA detention centers, and its determination to shut down the prison at Guantanamo Bay are clear examples. But its record to date is mixed. Human rights groups are critical of the administration's failure to complete the Guantanamo closure and its inability to implement its stated preference for criminal courts over military tribunals to try suspected terrorists. They also criticize the administration's endorsement of a system of indefinite detention without trial and the United States' ongoing reluctance to accept that human rights obligations also apply to those who are under U.S. authority or effective control outside its national territory.

The United States' role outside the domestic arena, specifically at the United Nations, is one aspect of U.S. counterterrorism policy that is far less well known. The Security Council's approach to counterterrorism, in contrast to its approach elsewhere, has generally shown a marked human rights deficit, exemplified by the controversies surrounding the UN sanctions list for individuals associated with al-Qaeda and the Taliban. The question arises: What role has the United States played in steering Security Council policy on this issue, and are there signs of a different course under the new administration?

SECURITY TRUMPS HUMAN RIGHTS

The United States has played a key role in shaping the Security Council's approach to counterterrorism, including its human rights component. Three weeks after the al-Qaeda attacks of September 11, 2001, the United States took the initiative to push through Security Council Resolution 1373 (2001), which created a legal framework for international cooperation on the prevention of terrorism. The Security Council also established a powerful Counter-Terrorism Committee, consisting of all of the Council's fifteen members, to supervise implementation of the resolution. Invoking Chapter VII of the UN Charter, Resolution 1373 imposed binding obligations on all UN member states for an indefinite period, requiring them to suppress and prevent the financing of terrorists and to freeze their assets. It obliged states to ensure that anyone “who participates in the financing, planning, preparation or perpetration of [terrorism] … or [supports] terrorist acts is brought to justice.” The resolution insisted that “such terrorist acts are established as serious criminal offences in domestic laws … and that the punishment duly reflects the seriousness of such terrorist acts.” However, the resolution left the term “terrorist act” undefined, opening the door for abuse.

Despite the far-reaching effects and broad scope of these binding measures—adopted without any consultation with the 177 UN member states not in the Security Council—the resolution barely mentions human rights, apart from in a relatively obscure paragraph, which deals with asylum seekers. It was left entirely up to governments to decide whether and how to preserve human rights standards while implementing the resolution. In practice, Resolution 1373 and subsequent binding Security Council counterterrorism resolutions with questionable human rights content have stimulated the adoption of a range of vaguely and broadly worded antiterrorist laws around the world that have done lasting harm to human rights protection, as nongovernmental organizations (NGOs) have repeatedly pointed out. For example, some of these laws have been extended well beyond the original intention of targeting terrorists, and are now being used against common criminals, political opponents, dissenters, and members of minority communities.Footnote 2

Between 2003 and 2008 the Security Council adopted several more thematic resolutions on counterterrorism, all of which included some reference to the protection of human rights. However, throughout this period the United States worked closely with China and Russia in the Security Council to keep the human rights references in these resolutions, and in the Counter-Terrorism Committee's work in general, as weak as possible. A breakthrough was Resolution 1456 (2003), which, largely at the insistence of a non-permanent member of the Security Council (Mexico), required that “States must ensure that any measures taken to combat terrorism comply with all their obligations under international law and should adopt such measures in accordance with international law, in particular human rights, refugee, and humanitarian law” (italics added). The United States insisted on the ambiguous word “should” rather than recognizing and supporting a clearly worded obligation on the part of states that they “shall” adopt such counterterrorism measures in accordance with international law. To date, the United States has yet to formally change its position.

EROSION OF SUPPORT

A central element of U.S. policy in combating the financing of terrorism is the UN targeted sanctions regime of alleged members and associates of al-Qaeda and the Taliban under the “listing procedure,” established by Security Council Resolution 1267 in 1999. The council acted in response to attacks on U.S. embassies in Kenya and Tanzania the previous year that were blamed on Osama bin Laden. That resolution, passed fully two years before the attacks of 9/11, and strengthened in subsequent binding resolutions, all of which exclude references to human rights, Footnote 3 oblige all UN member states to freeze the assets of and impose travel bans on individuals and entities whose names appear on the “Consolidated List” maintained by the al-Qaeda and Taliban Sanctions Committee—in UN shorthand, “the 1267 Committee.” The Sanctions Committee, composed of all fifteen members of the Security Council, has the power to identify and ensure the freezing of assets of individuals, groups, and corporations associated with al-Qaeda and the Taliban anywhere in the world, and it is assisted by an eight-member Monitoring Team. One expert observer, Eric Rosand of the Center on Global Counterterrorism Cooperation, has called the Sanctions Committee “one of the UN's least transparent and least representative fora.”Footnote 4

In the weeks following September 11, 2001, the United States swiftly added some 200 names to the Consolidated List. Since other members of the Security Council were at that time given a mere forty-eight hours (which has now been extended to five days) to challenge a listing, and since states were usually given no more details than a name, those put on the list were usually there to stay. As of March 10, 2010, there were 498 names on the list: 137 individuals associated with the Taliban, 258 individuals associated with al-Qaeda, and 103 entities associated with al-Qaeda. Many of them have been on the list for nine years.

Certainly, states are obliged to protect their citizens from terrorist acts, and few would question that freezing assets and banning travel of suspected terrorists and their associates can help prevent terrorist acts and may be an important counterterrorism tool. Moreover, as the High Commissioner for Human Rights has recognized, “the system of targeted sanctions represents an improvement over the former system of comprehensive sanctions.”Footnote 5 However, the targeted sanctions regime has come under increasingly sharp criticism—including in some countries that are permanent members of the Security Council themselves—for its lack of transparency and the total absence of due process guarantees in the “listing and de-listing” procedure of suspected terrorists. Countries find themselves torn by their obligation under Article 103 of the UN Charter to implement binding Security Council resolutions, on the one hand, and their obligations to uphold equally binding human rights treaties, on the other. The absence of such basic legal safeguards, largely at the insistence of China, Russia, and the United States, and acquiesced to by most other Security Council members, is all the more surprising in a regime established by a principal organ of the United Nations, which is bound by its Charter to “act in conformity with the principles of justice and international law.” Indeed, the absence of procedural fairness and the consequent implications for the authority of the UN as a beacon of international law attracted the concern of then UN Secretary-General Kofi Annan after world leaders, some from countries whose nationals appeared on UN sanctions lists, in 2005 formally urged the Security Council “to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them as well as for granting humanitarian exemptions.”Footnote 6

Incorporating basic legal safeguards in such a sanctions regime is essential not only from a human rights perspective but also to ensure the system's effectiveness as an important counterterrorism tool. Effectiveness depends, in part, on whether the measures are, and are perceived to be, legitimate. Many countries—notably in Europe—have become increasingly reluctant to propose new names to be added to the list. So what are the problems with the “listing” procedure? Quite a few.

First, many of those listed did not even know of their status until they went to their banks (and found their assets frozen) or wanted to travel abroad (and found their travel restricted). Indeed, until 2004 no notification by the Security Council's sanctions committee or a government was necessary. Second, once listed, a person or entity can remain there indefinitely. To be “listed” is quite easy given the minimal requirements for a nominating state to make a case and the short period available to other states to challenge a listing; whereas removal from a list requires the consensus of all Security Council members sitting on the Sanctions Committee—thus, any one of them has an effective veto. The list even includes dead persons: as of June 2009, twenty-seven people believed deceased remained on the list. Third, no detailed grounds are given as to why someone has been listed, and national courts have considered a range of claims that persons were wrongly placed on the sanctions list—ruling, for example, that no rationale was provided for a listing and that rights had been breached.Footnote 7 Fourth, until recently, a listed person had no possibility to be heard by the UN. Until some positive changes were made in 2006, unless a state took up one's case, there was neither an institution to turn to if an individual or organization wished to contest the listing, nor was there any independent body to look at, let alone review, the case for a listing. Last, until a resolution was passed in 2008, the Sanctions Committee itself did not carry out any internal review of the hundreds of names remaining for years on the sanctions list. Under these circumstances, many find it difficult to agree with the United States and some other key Security Council members that the targeted sanctions regime is merely preventative, and not punitive in nature—as the former High Commissioner for Human Rights, Louise Arbour, and many human rights organizations believe it is. As Arbour noted in a June 2008 report, “the longer an individual is on a list, the more punitive the effect will be.”Footnote 8

With avenues to seek redress from the United Nations barred, those believing they were wrongly listed started to bring legal action in national and regional courts, with considerable success. Cases have been brought before domestic and international courts in many regions of the world; and thirty legal challenges to the Consolidated List were identified in the UN Monitoring Team's Ninth Report as of May 2009. For example, Yassin Abdullah Kadi, a resident of Saudi Arabia, and Al Barakaat International Foundation, established in Sweden, both challenged their inclusion on a European Union list (which gives effect to the Security Council's sanctions regime), arguing that implementing the sanctions measures by asset freezing violated European Union institutional law and fundamental rights standards.Footnote 9 The European Court of Justice, hearing their case, did not review the legality of the Security Council sanctions regime per se, but it unambiguously rejected claims that the reexamination procedure created by the Security Council was a sufficient guarantee of human rights. The court held that the Security Council procedure was “in essence diplomatic and intergovernmental” and lacked “guarantees of judicial protection,” such as a chance for those listed to assert their rights, especially since the Security Council required the consensus of all members to remove a name from the list. The court found that the listing of Kadi and Al Barakaat and the freezing of their assets for more than six years without notice of the grounds for their listing under an EU Council regulation was a violation by the European Union of the petitioners' right to be heard and their right to effective judicial review.

A few months later the Human Rights Committee, the independent expert body that supervises implementation of the International Covenant on Civil and Political Rights, found that Belgium had violated the human rights, as guaranteed under the covenant, of Nabil Sayadi, who was born in Lebanon, and Patricia Vinck, his wife, both Belgian nationals. Their assets had been frozen since Belgium had transmitted their names for placement on the Security Council list and, later, on the European sanctions list in 2002. Claiming to be innocent of the alleged links with terrorist groups, both had filed, in vain, numerous petitions to the UN and the Belgian authorities to have their names removed. Belgium first refused to act, saying it was bound by its international obligations, while the European Commission replied that it had no authority to remove the names of the plaintiffs from a list drawn up by the UN Sanctions Committee. In fact, Belgium had initiated action against them without waiting for the outcome of a criminal investigation, which in 2005 found that there was no criminal evidence against either petitioner. Subsequently, Belgium asked the UN Sanctions Committee twice to remove the two names from the committee's list, but without success. The Human Rights Committee nevertheless held Belgium responsible for Vinck's and Sayadi's continuing presence on both the UN and European lists. The committee found that they had suffered violations of their right to liberty of movement and an unlawful attack on their honor and reputation, prohibited under Article 17 of the International Covenant on Civil and Political Rights, because their names had been published in the context of sanctions against al-Qaeda and the Taliban on the basis of information provided by Belgium, which was also ordered to pay some compensation.Footnote 10

A Canadian federal court directly criticized the sanctions regime when it ruled in June 2009 that Abousfian Abdelrazik, a Sudanese national who had obtained Canadian citizenship and who was put on the sanctions list in 2006 for being “associated with” al-Qaeda (apparently at the request of the United States), had a right to a remedy—namely, to return to Canada. A year later the Sanctions Committee denied his request to be delisted, without giving reasons. The federal court judge stated:

As the credibility of the UN sanctions regime was increasingly called into question, concerned UN officials and states began to take action, starting with Secretary-General Kofi Annan. In June 2006, responding to a call by the General Assembly in the World Summit Outcome document adopted a year earlier, Annan presented the Security Council with an informal paper titled “Targeted Individual Sanctions: Fair and Clear Procedures for Listing and Delisting.” Annan argued that the legitimacy and credibility of the sanctions regime “will depend, on a large part, on procedural fairness vis-à-vis individuals and entities, and the existence of an effective remedy.” Minimum standards required to ensure fair and clear procedures, he wrote, would have to include the right to be informed of the measures taken, the right to be heard within a reasonable time, and the right to review by an “effective mechanism” (effectiveness depending on the “degree of independence” of the review mechanism and its ability to provide an effective remedy). Annan also urged the Security Council to conduct a periodic review on its own initiative of “targeted individual sanctions.”Footnote 12

A few months later, in September 2006, the General Assembly adopted the UN Global Counter-Terrorism Strategy, which reiterated the assembly's strong condemnation of terrorism as well as the secretary-general's call on the Security Council to create “fair and clear procedures.” Not only does the Counter-Terrorism Strategy recognize that the promotion of human rights is a fundamental basis for the fight against terrorism but it concludes that “effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing.” As lofty as this pronouncement may be, however, one must keep in mind that, unlike Security Council resolutions, General Assembly resolutions have no binding legal force.

In parallel, in May 2008 a small group of concerned states, led by Liechtenstein and Switzerland and including Denmark, Germany, the Netherlands, and Sweden, proposed to the Security Council substantive changes to the regime. They called for a range of rights-based measures, including periodic review of all listing decisions and an independent expert panel to make nonbinding recommendations on delisting. NGOs welcomed these efforts, but criticized them for not going far enough in providing the necessary due process guarantees that they had persistently advocated since 2001. NGOs argued that those listed must be notified and, at minimum, have access to basic evidence against them, such as comprehensive grounds for a listing. Listed persons should be able to challenge a listing with the assistance of counsel and should have access to review by an independent body, which, if necessary, should have powers to remove a person or entity from the list. The review process should also be time-bound. Several NGOs argued that a delisting should no longer require consensus, and thus be subject to veto. However, most Security Council members, including the United States, did not agree. The Permanent Five in particular did not like the idea of anyone, certainly not an independent body, second-guessing their binding decisions, especially not when dealing with alleged terrorists and their associates.

STARTING TO ADDRESS THE PROBLEM

Despite these objections, the time had come for the Security Council to act, especially now that several members faced legal challenges in various courts, and as states became increasingly reluctant to add any more names to the Consolidated List. The changes that the Security Council made in a two-year period beginning in 2006 were small and largely cosmetic. First, in June 2006 it committed itself to ensuring fair and clear procedures in the sanctions regime, but did so in a nonbinding presidential statement. The council then proceeded to create, in Resolution 1730 (2006), a “focal point to receive delisting requests”—that is, a person to receive delisting petitions and transmit them to the designating and other governments concerned. But the functions of this focal point amounted effectively to little more than those of a mailbox. Resolution 1735 (2006), adopted a few days later, provided a little more transparency: it required that “the statement of case should provide as much detail as possible on the basis for the listing,” and required that those listed be notified within two weeks. Next, Resolution 1822 (2008) required that a summary of reasons for listing be placed on the UN website, that there be an annual review of all deceased persons on the Consolidated List, and that all names on the list require review by the Sanctions Committee before June 30, 2010.Footnote 13 Prompted by this resolution, the Sanctions Committee removed five persons from the Consolidated List on January 25, 2010.

All this marked some progress, but clearly it was far from enough. In July 2009 the UN Sanctions Monitoring Team had listed in an appendix to its report eleven pending court cases challenging a listing of terrorists or their associates: four before the Court of Justice of the European Communities, one before the European Court of Human Rights, two in the United Kingdom (High Court/Court of Appeal), one before the Supreme Court of Pakistan, and two in U.S. courts (Al Haramain Foundation in the District Court of Oregon and Yassin Kadi in the District Court for the District of Columbia). The Monitoring Team warned:

The Monitoring Team added: “Of all the options for reform, none has gained as much support or generated so much opposition as the idea of a quasi-judicial review panel charged with reviewing de-listing requests.” Advocates argued that such an institution was needed to bring targeted sanctions regimes in line with principles of international law. On the other hand, opponents of such an independent review, including China, Russia, and the United States, argued that the targeted sanctions regime is not punitive but preventative, that it is only of a temporary, administrative character, and that the Security Council is a political body whose decisions were not up for review by outsiders.Footnote 14 For its part, the Monitoring Team further suggested that the Sanctions Committee “be well advised to establish the desired standard for the review, rather than effectively cede the role to others.”Footnote 15

THE OMBUDSPERSON: A BREAKTHROUGH?

The new U.S. administration took up the challenge at a time when the climate was ripe for change. Security Council members commented privately that right from the start, when the United States first began to discuss its draft of new review procedures in summer 2009, the atmosphere was a positive one. Also helpful was the fact that non-permanent Security Council members Austria, Costa Rica, and Mexico pushed hard for the rule of law, and that Austria, as chair of the Sanctions Committee, could set the tone for the debate. On December 17, 2009, with the U.S. Mission to the UN in New York playing a lead role in the drafting process after months of close consultation with Washington, Security Council Resolution 1904 was adopted by consensus, under the binding provisions of Chapter VII of the UN Charter. Reiterating its unequivocal condemnation of Osama bin Laden, the Taliban, and al-Qaeda, the Security Council authorized the UN secretary-general, in close consultation with the Security Council, to appoint an ombudsperson for eighteen months “with high qualifications and experience in relevant fields, such as legal, human rights, counter-terrorism and sanctions” to mediate requests from individuals and entities to be taken off the sanctions list. Importantly, the ombudsperson would have direct contact with a petitioner and with the states concerned in a time-bound process. Most controversial was whether the ombudsperson could make recommendations (let alone decisions) to the Sanctions Committee on a delisting, as some non-permanent Security Council members strongly advocated. Faced with opposition, especially from China and Russia, a compromise was found that allows the ombudsperson only to make an analysis of available information and to “lay out for the (Sanctions) Committee the principal arguments concerning the delisting request.”

As agreed to, the power of the ombudsperson falls far short of the proposed independent review mechanism that, if necessary, can order people or entities to be removed from the list, an effective remedy that international human rights law requires. Other fundamental rules of fair process also remain ineffective or missing altogether. Nevertheless, the United States has played a lead role in what may eventually prove to be a historic decision by the Security Council, which has so far resisted any notion of due process or reconsideration of its decisions by another body. It also ought to have an indirect effect on other Security Council sanctions regimes.

Just under a dozen Security Council resolutions create committees that select individuals and entities for targeted sanctions, nearly all of them dealing with specific countries.Footnote 16 The al-Qaeda and Taliban sanctions regime stands apart from the others because of its exceptional scope: it covers all countries and is of unlimited duration. Unlike the other listing regimes, which primarily target individuals associated with governments, the 1267 sanctions regime addresses nonstate actors, and seeks to impose restraints on people for what they might do instead of for what they have done. It is the only sanctions regime dealing with terrorism, a subject making some states reluctant to raise due process concerns. At the same time, and rather ironically, the 1267 regime appears to be the catalyst for improvements to other sanctions regimes. For example, its requirement of a regular, internal review of listed individuals and the need to provide “narrative summaries” of the reasons for a listing—first adopted in Resolution 1822 in June 2008—were a few months later copied into the Somalia targeted sanctions regime. The creation of the ombudsperson, however weak the role might currently be, equally deserves to be carefully considered by all other targeted sanctions regimes.

As for the United States, has its posture toward international law and countering terrorism in the international arena substantively changed? Despite the lead role the United States has played in securing the adoption of Resolution 1904, it is far too early to say. Its push for the creation of an ombudsperson is encouraging, but it seems prompted more by practical considerations of successful counterterrorism policy (getting states to resume putting associates of al-Qaeda and the Taliban on the UN sanctions list) than by a principled pro–human rights stance. If the United States supports, consistently, more principled language and action in the Security Council and other UN bodies on states' human rights obligations in fighting terrorism; if it continues to underline, in words and deeds, that countering terrorism and upholding human rights are not incompatible but mutually reinforcing; and if it allows the powers of a strong ombudsperson to grow over time to carry out an effective, independent review that can provide redress, then we will know that the United States is serious when it proclaims that human rights and the rule of law are central to its counterterrorism efforts.