Fair Hearings for Requests to be Removed from Sanctions List?

The 1267 Committee, named for the UN Security Council Resolution which set the parameters for its creation, has been controversal since it was established in 1999. The regime established under Resolution 1267 and subsequent resolutions was aimed at individuals and groups associated with Al Qaeda, the Taliban and Osama Bin Laden. Since 2001 the reach and effect of the Committee has expanded greatly. The resolutions, adopted under Chapter VII of the UN Charter, requires member states to implement legislation or other statutory steps to ensure uniformity of measures against those listed by the Committee as associated with Al Qaeda or the Taliban. Even prior to the increase in the number and severity of  measures subsequent to September 11th, 2001, the actions undertaken under the resolutions were criticised by the Council of Europe for their arbitrariness.

Under the various resolutions the Committee is mandated to keep a consolidated list of persons and organisations associated with Al Qaeda and the Taliban and it is this list which has courted much of the controversy. The list is available here. There are currently 495 entries on it. Since a de-listing procedure was established in 2006, 33 individuals and 37 groups have been removed from the list though only since March 2010 are these names also removed from the Committee’s website. These de-listings include 6 Taliban Individuals, 9 Taliban Entities, 27 Al-Qaeda Individuals and 28 Al-Qaeda Entities. The measures taken against these individuals have included: assets freeze, travel bans and arms embargos.

The procedures undertaken in both the listing and de-listing process are particularly opaque.  A 2006 Report from the UN Office of Legal Affairs, written by Bardo Fassbender, on whether the Security Council were obliged to ensure basic due process rights found that there was a legitimate expectation that there would be basic rights accorded to those listed by the Committee.

The UN Security Council being a principal organ of the United Nations, a legal obligation of the Council to comply with standards of due process, or “fair and clear procedures”, for the benefit of individuals and “entities” presupposes that the United Nations, as a subject of international law, is bound by respective rules of international law…When imposing sanctions on individuals in accordance with Chapter VII of the UN Charter, the Security Council must strive for discharging its principal duty to maintain or restore international peace and security while, at the same time, respecting the human rights and fundamental freedoms of targeted individuals to the greatest possible extent.

This Report was followed by Resolution 1730 which established the de-listing procedure. This was followed by subsequent resolutions which created procedures for states to enable them to request individuals are added to the list.  This expanded rather than clarifying the already expansive role of the Committee.  Criticism has continued that the procedures associated with the Committee remain fundamentally flawed. One obvious problem is the ability of individuals to make their cases to the Security Council that they have being wrongly added to the list. As a body, it is certainly not geared towards hearing individual petitions and while the Committee has made some attempts towards making the procedures less opaque it would seem that remain fundamentally flawed. As recently as the 15th July the official whose job it is to examine whether to make additions to the list, Kimberly Prost, announced that applications for removal from the list would be given a fair hearing. Arguably this should go without saying in an organisation such as the UN charged with maintaining human rights standards throughout the world. The fact this continually needs to be re-iterated suggests that problems remain within the Committee’s procedures. Petitions for removal are now dealt with by an ombudsman who after reviewing the information available will make the case for de-listing to the Committee. This does not afford any individual right of petition to the Committee itself by those listed nor arguably does it meet the fair and clear procedures as recommended by the 2006 Report. It is a bizarre situation when the procedures of the UN would not meet the core standards it sets for its own State Members. The incremental changes in the operation of the Committee is not enough to satisfy basic due process rights and calls into question once again the role of Security Council in maintaining international legal standards.

Fair Hearings for Requests to be Removed from Sanctions List?

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