At Legal Crossroads
Security Council sanctions imposed without Due Process
One of the most contentious issues at the United Nations is the issue of Security Council reform. Along with sharp disagreements over the proposals of member states for expanding the number of seats on the Security Council is the less apparent issue of the need for change of the procedures by which decisions are made by the Security Council.
A letter dated 13 May to the Security Council regarding SC resolution 1267 (1999) states that the sanctions regime it established is "at a legal crossroads, with much attention focused on two challenges now on appeal before the Court of Justice of the European Communities."
One of these challenges is the case of Yassin Abdullah Kadi. Kadi is a Saudi Arabian resident whose name was added to the security council list of persons suspected of terrorism on October 19, 2001. The individuals on this list are subject to the freezing of their funds, a ban on their travel and other punishments to be enforced by the member nations of the United Nations. It is mandatory, according to the UN charter, for member nations of the United Nations to enforce sanctions decided under Chapter 7 of the UN charter by the Security Council. The European Union subsequently passed a regulation to enforce these security council sanctions.
On December 18, 2001, Kadi filed a legal case contesting the EU regulation. asking that the sanctions be annulled. (See Opinion, Kadi, I-3) When the Court of First Instance ruled against Kadi, he appealed the decision to the European Court of Justice. An opinion is expected in Fall 2008.
An opinion submitted to the Court in January 2008 by the Advocate General Poiares Maduro raised serious issues regarding the EU's legal ability to enforce Security Council sanctions which have been imposed on individuals without providing due process procedures. The Advocate General recommended that the Court annul the EU regulations enforcing the sanctions. An article in the Economist noted that it is still up to the Court to decide whether to rule in accord with the Advocate General's opinion, but that the court "in the past has followed such opinions in about 80% of the cases."
The Security Council itself realizes the potential for negative court decisions on its lack of due process. One SC report states:
The way entities or individuals are added to the terror list maintained by the Council and the absence of review or appeal for those listed raise serious accountability issues and possibly violate fundamental rights, norms and conventions...
The Advocate General sees as positive the ability to bring the rule of law back into the process of dealing with even the "threat of terrorism." Quoting the words of the former President of the Supreme Court of Israel, Aharan Barak, the opinion says:
It is when the cannons roar that we especially need the laws.
Kadi contends that the sanctions against him were imposed without any opportunity for him to be "heard on the facts and circumstances alleged and on the evidence adduced against him." (See Opinion, I-20)
Though the procedures in the listing and delisting of individuals on these sanctions lists have undergone some change since they were first established, the Advocate General points out that "the de-listing procedure does not provide even minimal access to the information on which the decision was based to include the petitioner in the list."
The Advocate General reasons that absent minimal due process procedures for the accused, the sanctions could be "disproportionate" or even "misdirected"on who they are imposed against and they can "remain in place indefinitely." (See Opinion, I-22) Such a situation is "anathema in a society that respects the rule of law," explains the Advocate General.
Six European nations have been exploring how to resolve this possible conflict between the duty of the EU to enforce the security council sanctions and the duty of EU members to uphold due process procedures as part of their obligations under the Universal Declaration of Human Rights of which they signatories. The countries are Denmark, Liechtenstein, Sweden, Switzerland, Germany, and The Netherlands. They held a meeting at the UN on June 13, 2008 where they discussed a Paper they prepared for the Security Council. The Discussion Paper is subtitled "Improving the Implementation of sanction regimes through ensuring 'fair and clear procedures".
In the annex to the paper [the six countries] propose that the Secretary General recommend the appointment of 3-5 experts to a panel which the Security Council could then appoint to review the cases before them of individuals who are on their sanctions lists who ask to be delisted.
The paper proposes a procedure for the panel to review cases before [it] of individuals who ask to be delisted and to make a recommendation. It would be left to the Security Council to decide whether or not to accept the panel's recommendation.
Also present at the June 13 meeting was Yvonne Terlinger, who heads the Amnesty International Office at the UN. She presented an open letter to all members of the security council which critiques the Discussion Paper. The letter explains the importance of four principles which would need to be part of any effective correction to the problem of how the security council imposes sanctions. These principles are:
- The right of persons in question to be informed of measures taken and to know the case against them.
- The right to be heard within a reasonable length of time. This would include the right to call and examine witnesses, to be represented by an attorney and to submit sworn written testimony.
- The right to an effective review mechanism. This would include the the right to impartial, qualified persons on a review panel, and to a means to have the sanctions lifted and even reparations if the imposition of the sanctions was judged to be mistaken`.
- Periodic review of all sanctions on individuals imposed by the Security Council.
Also at the June 13 meeting was the Ambassador from Yemen. He gave the example of one individual on the list who is an eminent theologian in the Arab world. When the individual's name was placed on the list, Security Council members were given 24 hours to object. Since they said they were waiting for instructions from their governments there was actually no time to challenge the listing. After the individual was on the list the Yemeni ambassador was told that there was nothing they could do, but that they should tell the individual to write a letter to the Security Council. He did that and it had been a year and a half since the letter was written and there had not been any response.
Terlinger pointed out that not only was Amnesty International concerned with the human rights violations due to the current sanction procedure, but it also was concerned that the UN charter was being construed as legitimating and requiring member nations to impose sanctions which are in opposition to the requirements of the charter that human rights be respected.
The International Federation for Human Rights (FIDH) explained a similar concern in an "Open Letter to the Members of the Security Council" dated May 21, 2008. It wrote that security council imposed sanctions "must respect internationally recognized human rights, which are fundamental to the United Nations architecture."
It explains that though "targeted sanctions were initially conceived as preventative measures," they "often turn into permanent punitive sanctions, and even sometimes have direct criminal consequences. Yet no effective remedy is available for individuals or entities who were wrongly listed, or whose human rights were violated."
The FIDH letter says that "The United Nations cannot promote the universal application of human rights on the one hand and violate them within its own procedures."
Kofi Annan, the former Secretary General of the UN has expressed a similar concern for the problem represented in these security council imposed sanctions in an informal paper entitled "Targeted individual sanctions: fair and clear procedures for listing and de-listing." (June 15, 2006) He lists four basic elements "to ensure fair and clear procedures" for a process for imposing such sanctions. The four basic elements are similar to those proposed in the June 3 2008 letter by Amnesty International. This is the framework in which the Security Council on Monday, June 30 is to discuss renewing the mandate of the Analytical Support and Sanctions Monitoring team which assists the 1267 sanctions committee.
Also the June 13 meeting, the Danish ambassador to the UN summed up the situation, "I definitely agree that we have an issue at hand that creates a lot of frustration with a number of people who suddenly find themselves in a situation that is Kafkaesque in a sense that they don't know how to react or what to (do) to get normal procedures.... This is not an issue that will go away unless this is dealt with properly."
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