Al-Qaeda, Taliban sanctions committee approves “most comprehensive set of updates” to sanctions list

The chair of the UN Security Council’s “Al-Qaeda and Taliban Sanctions Committee” on Monday said the committee has “approved the most comprehensive set of updates” to their sanctions blacklist, as well as the largest group of narrative summaries for added listings in its history.The statement came as the chairman of the Security Council Committee established under Resolution 1267 on sanctions against Taliban and Al-Qaeda members, Peter Wittig, the German ambassador to the UN, briefed the 15-nation Security Council in an open meeting.

“Today, I am pleased to report that the committee, building on these efforts, has approved the most comprehensive set of updates to the Consolidated List and the largest group of narrative summaries of reasons for listing in its history,” Wittig said.

Specifically, he told the Council that the committee has agreed to 78 list amendments and to make publicly available almost 200 additional summaries of reasons for listing.

“In particular the additional narrative summaries will further facilitate the implementation of the sanctions,” he said. “They mark an important step to close an information gap and further enhance fair and clear procedures.”

Currently, the Consolidated List has 488 entries — 258 Al- Qaeda individuals, 138 Taliban individuals and 92 Al-Qaeda entities, he said.

Since the last briefing, the committee has added the names of six individuals to the list, and removed six other individuals from the list in addition to amending 37 entries based on additional information gathered.

Despite his death, Osama Bin Laden was not removed from the list.

UN Security Council Counter-Terrorism Committee report on bringing terrorists to justice

Read it here.

A. International cooperation in counter-terrorism investigations and prosecutions
B. The role of the prosecution in counter-terrorism cases
C. New challenges in the investigation and prosecution of terrorism
D. Prosecution of terrorism cases and prevention of terrorism
E. The prosecution and counter-terrorism investigations
F. Organization of the prosecution and its relationship with other agencies
G. Concluding observations

List of good practices identified by participants

UN focuses on use of Internet to counter appeal of extremist violence

Using the World Wide Web to craft and deliver effective counter-narratives to fight the appeal of extremist violence was the focus of a three-day, United Nations-organized counter-terrorism workshop which was held in Riyadh, Saudi Arabia.

“There is no single counter-narrative just as there is no single audience – we will aim to look at many different approaches,” the chairman of the UN’s Working Group on Countering the Use of the Internet for Terrorist Purposes, Richard Barrett, said at the workshop’s opening. “But we will focus on the best ways to use the internet to undermine the appeal of terrorism to expose its lack of legitimacy and its negative impact and to undermine the credibility of its messengers.

The workshop is the third in a series of undertaken by the United Nations Counter-Terrorism Implementation Task Force (CTITF) – through its Working Group on Countering the Use of the Internet for Terrorist Purposes – with the ultimate purpose of helping UN member states by giving them a snapshot of the current nature of the challenge and offer possible policy guidelines and projects.

In his remarks to the workshop, Mr. Barrett stressed the key elements that need to be incorporated into counter-narratives.

“First, we need a message that resonates with the individual at the same time as it addresses a larger audience; second, we need to criticize and undermine a particular mindset but at the same time offer an alternative,” Mr. Barrett said. “Third we need to keep the message simple and straightforward; it should allow for no possibility for contradiction or dispute. Fourth, possibly most important of all, we need to find the right people to deliver the message; people who command respect and have credibility in the vulnerable communities that the terrorists seek influence.”

Building on the outcomes of the previous workshops, the Riyadh conference is expected to launch a global effort aimed at understanding and leveraging the power of the Internet to expose the distortions of the narratives used by terrorists and explain the real consequences of their actions. Moreover, the meeting will provide a platform for developing specific projects focused on countering the appeal of terrorism, including tailoring counter-narratives for particular regions and audiences.

UN report confirms gap between law and reality, torture, secret detentions and police harassment in Tunisia under Ben Ali

The United Nations just published a report on its website which describes the fact-finding mission of the United Nations Special Rapporteur on the protection of human rights while countering terrorism in January 2010. On the basis of the evidence he gathered, he observed a pattern of unacknowledged detention being used vis-à-vis terrorist suspects. During the period of secret detention, terrorism suspects are at high risk of being subjected to torture and ill-treatment. The secrecy that surrounds custody and interrogations by the unit of the “Police Judiciare”, which is in charge of interrogating terrorism suspects (commonly referred to under its previous name “Directorate for State Security”, DSS), renders investigations into abuses improbable and, consequently, leads to a lack of accountability and to impunity. The Special Rapporteur further concludes that the judiciary does not effectively act as a safeguard against these practices, and that the restrictions on access to lawyer during police custody aggravate his concerns. The report will be discussed by the United Nationas Human Rights Council around the 7th of March 2011.

The report is the last official UN report to describe practices under the Ben Ali regime, and it was the first time in more than 15 years that the UN’s special procedures mechanisms visited the country for a fact finding mission.

Mission: no access to Ministry of Interior interrogation facilities
The Special Rapporteur met with the former Minister of Foreign Affairs, the Minister for Justice and Human Rights, Ministry of Interior officials, judges, parliamentarians, lawyers, academics and non-governmental organizations, in addition, he visited the Bouchoucha police detention facility and the Mornaguia Prison, where he interviewed several persons suspected of, or convicted for, terrorist crimes. More significant the Special Rapporteur was denied access to the interrogation facilities of the Sub-directorate for Criminal Affairs of the “Police Judiciaire”, also known as “Directorate of State Security”, DSS, where the overwhelming majority of the allegations of torture or ill-treatment took place.

The abuse of the definition of terrorism

In his assesment of Tunisia’s revised anti-terrorism law, the Special Rapporteur says clearly that the definition of terrorism does not fulfil the legality requirement contained in article 15 of the International Covenant on Civil and Political Rights or article 13 of the Tunisian Constitution. The Rapporteur concludes:

The current wide definition clearly carries the risk of broad application of counterterrorism legislation, which in turn means that the term “terrorism” may become diluted and lose its distinguishing stigma. This may have possibly far-reaching consequences for the rights to freedoms of expression, association and assembly.

According to the SR, the combination of the wide definition of terrorism, combined with the criminalization of preparatory acts of terrorism “allow for targeting as “terrorists” people who simply hold radical and unpalatable views without posing a real danger in terms of planning any violent acts.”

In the view of the Special Rapporteur, it appears that the scope of application of the terrorism provisions in the law has grown too wide and should be reduced. Any anti-terrorism law that is not properly confined to the countering of terrorism within the limits of human rights law is problematic, not only because an overly expansive scope of such a law weakens its own legitimacy and ultimately may prove to be counter-productive, but particularly because it may unjustifiably restrict the enjoyment of human rights pertaining to the exercise of peaceful activities, including dissent and political opposition through legitimate associations. The Special
Rapporteur identified the danger of a ”slippery slope” which not only results in persons being convicted of “terrorism” who do not deserve that stigma, but also endangers the effectiveness of the fight against terrorism by trivializing the phenomenon.

First clear indication of number of persons detained under Tunisia’s anti-terrorism law, and Tunisia’s structure of the internal security forces under the Ministry of Interior

The Special Rapporteur indicates that perhaps one person per day was arrested and/or detained on the basis of the anti-terrorism law. The official statistics that the Special Rapporteur received showed that overall 214 cases have been brought before a court in the seven years since its adoption, in which 1,123 individuals were involved. (So this number does not include people who were never tried.)

Furthermore, the Special Rapporteur received information about a number of cases, where the main “crime” seems to have been to have visited certain countries or even mosques, downloaded or watched certain programmes online, having held prayers together, or having met with others to discuss religious issues.

Regarding the structure of the security forces of the Ministry of the Interior, the Special Rapporteur was expressed concerns about the myriad of agencies that were responsible for countering terrorism.

Elements rendering the practical operation of counter-terrorism policing opaque are the use of several common names for what appears to be the same entity, namely the Subdirectorate of Criminal Affairs, formerly known as “DSS”, standing for the “Directorate of State Security” and the lack of publicly available information on its status and organization.

Back-dating of arrest dates resulting in a pattern of secret detention

Numerous testimonies collected by the SR indicated – and it was admitted by the authorities – that dates of arrest are routinely post-dated, thereby circumventing the rules about the allowed length of police detention and taking detainees out of the protection framework.

When the Special Rapporteur visited Bouchoucha, the police station in Tunis through which terrorism suspects pass before being transferred to pretrial detention, he discovered that all of the 25 detainees whose names were contained in the custody record in relation to terrorist crimes had been brought there by members of the “Police Judiciaire” in the late afternoon or evening and taken out once during the following night for an unspecified period (the officials present during the visit explained that such temporary transfers were indicated in pencil only and erased once the person returned) before finally being transferred before a judge in the morning of the next day. The recorded practice of very short official police custody in terrorism cases is in stark contradiction with reports by detainees and families about interrogations ranging from several days to a number of weeksbefore being brought before a judge. The police officers in Bouchoucha also denied
knowing where the “Police Judiciaire” holds the suspects before bringing them to Bouchoucha for registration into official detention. This pattern appears to be compatible with the many allegations received by the Special Rapporteur that people under investigation are typically in terrorism cases first held in unacknowledged police custody.

In a damning paragraph, the Special Rapporteur highlights that evidence brought to the attention of the Special Rapporteur indicated that suspected terrorists are routinely held in secret in a building of the Ministry of Interior in Tunis.

Detainees allegedly sleep either on the ground floor in rudimentary conditions in a number of cells grouped around a larger room, or in smaller cells in the basement. Interrogations also take place on upper floors. No person from the outside has access to these premises, so detainees are at the mercy of their custodians, which, in itself, puts pressure on them and may constitute inhuman treatment. The authorities, however, continue to deny that the Ministry of Interior detains persons within or close to its official premises. Despite repeated requests, they did not allow the Special Rapporteur access to the interrogation facilities of the Ministry.

The Rapporteur concludes:

On the basis of the evidence gathered, he observed a pattern of unacknowledged detention, operating in the city of Tunis under the interrogation authority of the Ministry of Interior, being used to detain terrorist suspects. During this period that precedes detainees’ official registration in police custody, they are also routinely subjected to torture and ill-treatment and denied access to a lawyer.

Torture and the use of confessions obtained under torture

Numerous cases of terrorism suspects brought to the Special Rapporteur’s attention indicate that ill-treatment and/or torture is perpetrated during initial, unacknowledged police custody or interrogations by what is commonly referred to as “DSS”, in particular if the suspects refuse to confess.

The details of these accounts suggest that these practices occur under the direct control of the Ministry of Interior and possibly even within or next to the premises of the Ministry. According to consistent allegations, suspects are regularly subjected to severe beatings on different parts of the body, including genitals, with fists, cables and batons, kicking, slapping, often combined with stripping of their clothes and suspensions (including in the so-called poulet rôti (“roast chicken”) position), even in ordinary offices of the Ministry. Some reports also described electroshocks and mock-drowning taking place in one particular room in the basement, especially in cases, where suspects resisted to making confessions. Other methods used included extended periods of sleep deprivation, burning with cigarettes, threats with rape, threats to family members and anal rape. The treatment was allegedly perpetrated by plainclothes officers of DSS.

The main purpose of the torture was to extract confessions, and sometimes testimonies about third persons. It normally stopped with the signing of papers that most suspects had not been allowed to read. However, the Special Rapporteur received allegations about instances of reprisals occurring in official places of detention in terms of beatings, threats and solitary confinement, for instance, for prisoners that had made calls for prayer or submitted complaints. In several cases, detainees were transferred from prisons back to the premises of the Ministry of Interior for interrogation and ill-treatment.

The testimonies also indicated that existing safeguards are ineffective in practice. Apart from the fact that the ill-treatment normally happens prior to the registration of police arrest, access to independent medical examinations, although provided for by law upon authorization by a judge, is practically never granted, and can therefore not be considered an effective safeguard. If at all, medical examinations take place months after the illtreatment was perpetrated, and therefore fail to produce evidence that can be used in court. The resulting “lack of proof” is then used by prosecutors and judges to ignore claims about torture and ill-treatment and, on that basis to reject requests for investigations.

No real accountability for torture

While noting the importance of at least some trials and convictions, the Special Rapporteur considers that the number of prosecutions or other clear findings related to torture remains disturbingly low when compared to the frequency and severity of the allegations he received. He is concerned that there are remnants of a climate of impunity within law-enforcement structures. This is all the more troubling in light of allegations that confessions are frequently used as evidence in court. He is therefore concerned that the lack of effective investigations into allegations of torture may have led and continue to lead to unfair trials and illegitimate court judgements, on the basis of which persons may be deprived of their liberty – one of the most severe interferences with fundamental freedoms – for years, sometimes decades. He therefore calls upon the authorities to reopen.

Overall, the Special Rapporteur is concerned that the judiciary appears to fail to act as an effective remedy when it comes to allegations of torture or ill-treatment. Numerous persons indicated that raising such allegations during trial practically never leads to any action by the judges. Unfortunately, the Special Rapporteur’s meetings with judges of the Appeals Court in Tunis did not take away his concern of that protocols that mention torture allegations and other written submissions on the issue are routinely ignored by the court.

This raises serious concerns in terms of the independence of the judiciary, guaranteed by article 65 of the Constitution and the Law No. 29 of 1967, exacerbated by indications thatthe Executive Branch, through the Supreme Council of the Judiciary (which is composed of the President, who is the Chairman, and the Minister of Justice as Vice-chairman, plus a majority of members either representing or appointed by the Executive Branch) controls many aspects of the judiciary, including appointments, promotions, transfers and disciplinary measures.

Clarification of rendition case of Laid Saidi

Concerning Tunisia’s participation in illegal forms of cooperation in counterterrorism, the Special Rapporteur has received allegations that Tunisian authorities were involved in holding a detainee sent to Tunisia by the United States’ Central Intelligence Agency, who was then transferred to other countries. Laid Saidi was reportedly seized in the United Republic of Tanzania, transferred to Malawi, then rendered to Afghanistan and further to Tunisia, where he was held for 75 days before being returned to his home country Algeria (see A/HRC/13/42, para. 133). According to the Government however Laid Saidi had arrived with a “special flight” on the 9 June 2004, where he was presented by four foreign security officials to Tunisian authorities at the airport of Tunis Carthage under the name of Ramzi Ben Fredj. The Tunisian security services conducted an audit and concluded that the person had usurped the identity of the real Ramzi Ben Fredj.

The person then acknowledged that he was actually Laid Saidi. The next day, on the 10 June 2004, Said was sent back with the same special flight to a “foreign country”; he was then still accompanied by the same foreign agents. Similarly, it has been alleged that Tunisian intelligence officials participated in interrogations of terrorist suspects in Afghanistan (see interview with Bisher Al-Rawi, A/HRC/13/42, annex II, case 4). The
Special Rapporteur regrets that, according to his information, the Government of Tunisia has not started any investigation into these allegations.

Harassment of defence lawyers

The Special Rapporteur received a number of allegations regarding obstruction of the work of defence lawyers, e.g. concerning restrictions on access to their clients and their clients’ files, but also about harassment in more general terms, in particular vis-à-vis those who defend terrorism suspects. This can take the form of interference with their correspondence, non-issuance of passports for international travel, but also go further to not allowing them to enter certain places, pressuring family members, etc.

Security Council prolonges CTED mission for three years in res 1963

On the 20th of December the Security Council decided that the Counter-Terrorism Committee Executive Directorate (CTED) would continue to operate as a special political mission under the policy guidance of the Council’s Counter-Terrorism Committee for another three years, through 31 December 2013. The Council directed CTED to provide an updated Global Implementation Survey of resolution 1373 (2001) by 30 June 2011 and a Global Implementation Survey of resolution 1624 (2005) by 31 December 2011.  Both Surveys should assess the evolution of risks and threats, and the impact of the implementation; identify gaps in the implementation; and propose new practical ways to implement the respective resolutions. Reminding that effective counter-terrorism measures and respect for human rights were complementary and mutually reinforcing, and noting the importance of respect for the rule of law in combating terrorism, the Council encouraged the CTED to further develop its activities in that area and to ensure that all human rights issues were addressed consistently and even-handedly.

For more background see this paper by the Center on Global Counterterrorism Cooperation.

Diplomatic cable on US-COJUR meeting in 2006 sheds some light on EU reason not to support anti-Guantanamo Resolution at the UN Human Rights Commission

Wikileaks published a cable yesterday (06BRUSSELS524) on a meeting which has interested many legal scholars which work on the fight against terrorism. On February 7-8 2006 US Legal Adviser John Bellinger met  with a comprehensive array of EU interlocutors in Brussels  to discuss U.S. views on the legal framework for the war on terrorism. Unfortunately the cable isn’t a transcript, so we don’t find out more about the legal discussions that took place. But there are two interesting quotes in the cable: one on renditions, and one on EU support for anti-Gitmo resolution in the (then) UN Human Rights Commission in 2006.

According to the cable, Bellinger started giving his well known views on the nature of the GWOT, detention issues, treatment of prisoners, review of detainees, renditions etc. On renditions the cable says the following:

Bellinger sought to dispel allegations that  hundreds of people had been kidnapped from European streets.  He pointed out that there is no evidence for such  allegations, and that the United States respects the  sovereignty of European governments. On renditions, CIA flights, and other intelligence operations, the U.S. will not confirm or deny specific allegations, in order not to compromise the confidentiality of intelligence operations as  such. Bellinger noted that denying five out of six such  allegations would in effect confirm the sixth. The U.S.  trusts that European governments will continue to follow the  same policy.

It is now well-known of course that the US kidnapped Abu Omar in 2004 in Milan, two years before this meeting took place.

Interestingly, some EU interlocutors “expressed concern” at the meeting that some EU member states would support a Cuban resolution against U.S. actions in Guantanamo at the upcoming UN Human Rights Commission.

Bellinger warned that European support for a Guanatanamo resolution would be a serious setback to U.S.-EU cooperation against terrorism, and give the unacceptable impression that the EU was aligned with Cuba against the U.S. EU Council Director-General for Common Foreign and Security Policy, Robert Cooper, said some EU member states might feel obliged to support the resolution because they had agreed last year not to in return for U.S. commitment to allow the UN Special Rapporteur on Torture, Manfred Novak, to visit Guantanamo; now, the U.S. had gone  back on that agreement.

Bellinger explained that the U.S. had invited Novak to visit, but that Novak had chosen  publicly to reject the U.S. offer (to visit under normal conditions, but not to able to interview individual detainees, as only the ICRC may do that). Cooper said the EU, having cooperated with the U.S. in resisting Chinese attempts to impose conditions on visits of Special Rapporteurs, was having difficulty justifying the U.S. attempts to impose conditions on Novak’s Guantanamo visit. Both sides agreed that the U.S. and EU needed to consult further in order to avoid a train wreck at the Human Rights Commission on this.)

The cable concludes with the US assessment of the meeting:

It is clear  that many Europeans continue to believe that Article 3 of the  Geneva Conventions can be applied to enemy combatants, and  still afford the United States the flexibility it seeks. It  is also apparent that lingering concerns (fed by negative  public perceptions) remain about the treatment of detainees,  and protection against wrongful detentions. Some governments  remain focused on renditions, and the possibility that there  will be negative revelations that impact on them directly.

That said, the visit was very helpful in beginning to  dispel European misunderstandings and misgivings about our  pursuit of the war on terror. Continued engagement on these  issues is critical in the coming months to persuade EU  governments to stand more firmly and publicly in the face of  their public’s concerns and suspicion regarding Guantanamo,  renditions, and the legality of U.S. actions against Al  Qaeda. The Austrian Chair of the COJUR meeting, Ferdinand  Trauttmansdorf, concluded the meeting with the following  message: “We leave this discussion with the notion that  America is carefully considering these difficult questions in  good faith.” He said also that the fight against terror was  a burden shared by the EU, and that the U.S. has as much of a  right to ask questions of the EU, as the EU does of the U.S.  On the upcoming Human Rights Commission, urgent consultations  with the EU will be necessary to avert the possibility of EU  support for a Cuban Guantanamo resolution.

US ordered surveillance of UN officials, including through obtaining biometric information

US Secretary of State Hillary Clinton ordered clandestine surveillance of United Nations leadership, including obtaining “security measures, passwords, personal encryption keys, and types of VPN versions used” and biometric information, according to cable 09STATE80163 made public today by

The National HUMINT Collection Directive (NHCD) on the United Nations asks for details about “information systems, networks, and technologies used by top officials and their support staffs,” and includes a comprehensive list of strategic  priorities (paragraph 3) and reporting and collection needs  (paragraph 4) intended to guide participating USG agencies as  they allocate resources and update plans to collect information on the United Nations.  One of the areas of interest which is of interest are:

Plans and intentions of member states or UN Special  Rapporteurs to press for resolutions or investigations into  US counterterrorism strategies and treatment of detainees in  Iraq, Afghanistan or Guantanamo.

U.N. Remains Deadlocked on Defining Terrorism

A U.N. Ad Hoc Committee to Eliminate Terrorism, created by the General Assembly back in December 1996, has remained deadlocked as it tries to reach agreement on a comprehensive draft convention to eliminate terrorism. Last month, it made another unsuccessful effort at drawing a distinction between “freedom fighters” and “state sponsored terrorism”. (Doc. Nr. A/C.6/65/L.10) The draft convention, tabled in 2001 by India, has won agreement by several delegations to a substantial extent. Dr. Rohan Perera, chair of the Ad Hoc Committee to Eliminate Terrorism, told IPS the only way to reach a consensus on the issue is to follow the path of adopting an operational or a criminal law definition of terrorism, rather than a generic definition.

The former approach has been followed in the 13 sectoral conventions on terrorism, and avoids the pitfalls of the latter approach which involves excluding certain types of conduct such as those committed by national liberation movements (NLM).

Accordingly, he said, the draft contains a criminal law definition.

“The question of state terrorism will continue to be  governed by general principles of international law, as it  is not possible to deal with this aspect in a law  enforcement instrument, dealing with individual criminal  responsibility, based on an ‘extradite or prosecute’  regime,” he said.

Similarly, said Perera, acts committed in the course of  armed conflicts by NLMs will continue to be governed by  international humanitarian law.

“The negotiations started in 2000 and we were close to  agreement in 2001, in the aftermath of 9/11 (terrorist  attacks on the United States),” he said. But since then, it  has remained stalled, with little significant progress.

He said that negotiations would resume within the framework  of the U.N.’s Sixth Committee dealing with legal issues.

Asked if there will ever be a new comprehensive convention  to eliminate terrorism because of the continuing deadlock,  Kohona told IPS: “Of course, there will be a convention.”

The U.N. Security Council’s 1267 Regime and the Rule of Law in Canada

New paper by the BC Civil Liberties Asssociation. The paper considers, inter alia, whether Canada’s implementation of the 1267 Regime is consistent with its due process obligations under the Charter of Rights and Freedoms and the Bill of Rights, using the experience of Abdelrazik as an example of Canada’s domestic implementation at work. Read it here.

Security Council’s counter-terrorism measures outside the scope of its powers says UN Special Rapporteur

UN Special Rapporteur on counter-terrorism and human rights, Martin Scheinin, has told the General Assembly today that the counter-terrorism regime created by the Security Council is outside the scope of its powers. The main recommendation contained in the report is that the Security Council should seize the opportunity of the approaching tenth anniversary of its resolution 1373 (2001) to replace resolutions 1373 (2001), 1624 (2005) and 1267 (1999) (as amended) with a single resolution, not adopted under Chapter VII of the Charter of the United Nations, in order to systematize States’ counter-terrorism measures and reporting duties of States under one framework.

“To put it bluntly, while international terrorism remains a very serious threat and constitutes a category of atrocious crime, it is not generally and on its own a permanent threat to the peace within the meaning of Article 39 of the Charter and does not justify exercise by the Security Council of supranational quasi-judicial sanctioning powers over individuals or of supranational legislative powers over Member States,” he said.

He added: “The current situation of the two cornerstones being ultra vires poses risks to the protection of human rights and the international rule of law.  What is equally important is this situation weakens the legitimacy, acceptability and acceptance of the UN counter-terrorism framework, hence constituting a threat to an effective and efficient fight against terrorism.”

Scheinin argued that it is problematic to impose binding permanent obligations for acts of terrorism which have not yet taken place because there is no universally accepted and precise definition of terrorism. He also noted that the rapid progress made in State ratifications of the International Convention for the Suppression of the Financing of Terrorism has, since 2001, provided a proper legal basis for States’ obligations in this field and made redundant the use of Chapter VII powers for the same purpose.

Equally problematic, the human rights expert said, is the Al-Qaida and Taliban sanctions regime initiated by Security Council resolution 1267 (1999) as a reaction to a concrete threat to the peace but subsequently expanded into an open-ended system of sanctions without a link to a specific territory or State.While 1267 could be seen as a temporary emergency measure, “using its Chapter VII powers to maintain a permanent list of terrorist individuals and entities anywhere in a world and to impose its application upon all Member States as a legally binding Charter obligation goes beyond the powers of the Security Council”.  Similarly, resolution 1373 was adopted in the immediate aftermath of the terrorist attacks of 9 September 2001 in a situation when only four States had ratified the International Convention for the Suppression of the Financing of Terrorism.  It was “a shortcut, an emergency measure” to impose upon States the rules of the convention already.  Today there are 173 parties to the Convention and there was no justification for the position that the supranational powers of the Security Council would have to be resorted to in order to have a normative framework for action against terrorism.  Those were the factors that motivated his assessment that 1267 and 1373 were outside the scope of powers granted by the Charter, he said.

While welcoming steps taken by the Security Council to reform the terrorist listing and de-listing procedures, including the establishment of the Office of the delisting Ombudsperson in 2009, Scheinin noted that rights of due process remain at stake. His view on the continuous lack of procedural fairness has recently been confirmed by a decision of the European Union General Court of 30 September 2010.

“It is essential that listed individuals and entities have access to domestic courts to challenge any measure implementing the sanctions that are the result of political decisions taken by diplomats,” he stated. 

The Special Rapporteur recommends to the Security Council replacing the regimes created by resolutions 1373 (2001) and 1267 (1999) with a single resolution that does not carry the binding legal force of Chapter VII of the UN Charter. This would place counter-terrorism measures and reporting obligations of States under one framework. Such a resolution should include explicit human rights provisions and reaffirm the obligation on the United Nations to comply with international human rights law.

The listing of individuals by name at United Nations level, he says, should be replaced by advice and assistance to Member States, including on due process guarantees in maintaining and reporting on national terrorist lists. Rather than listing terrorists, the role of the United Nations would be to extend advice and assistance to States, including the collection of evidence.

The Special Rapporteur observed that the United Nations Global Counter-terrorism Strategy adopted by the General Assembly provides a solid basis for the reforms he is proposing as it contains respect for human rights and the rule of law as one of its pillars.

He emphasized that counter-terrorism measures and the protection of human rights are not contradictory.

“The defence of human rights renders counter-terrorism efforts by States even more effective. Violations of human rights by States are only conducive to providing breading grounds for more terrorism,” he said.

Responding to the question of the representative of Switzerland  about alternatives for a World Court of Human Rights to address breaches, he said that his proposal was geared towards extending accountability so it covered international organizations.  States were subject to a range of mechanisms, but still missing were mechanisms addressing actors other than States.  In today’s age of globalization, which meant that actors of equal weight and significance had the capacity to enjoy human rights anywhere, an accountability gap existed, because accountability was geared towards only States.  Beyond the World Court, there were other things that could be done, such as paying attention to the question of the listing of individuals and to improving due process guarantees or fairness at the United Nations level through the ombudsman.

One important factor would be taking the findings of the ombudsman seriously, so that the ombudsman’s powers would impact justice even without independent decision-making abilities.  One major obstacle was also the requirement of consensus decision-making regarding de-listing.  As long as that existed, international courts hesitated in accepting that there was fairness in due process at the United Nations level.  A national or regional judicial review over the implementation of sanctions was needed.  The Special Rapporteur also noted a distinction between the imposition and implementation of sanctions regarding States.

With regard to the statement of the United States about disagreements concerning the scope of Chapter VII, he said that differences of opinion would remain and that the question of legal parameters and responsibilities of international bodies could not be closed quickly.  A resolution was the creation of mechanisms regarding the accountability of international organizations, such as the World Court of Human Rights.  Problems with the current regime regarding Chapter VII included being faced with a “straightjacket” of being reactive to threats to peace.  It was hard to react against evolving trends if one had to go through legal arguments that a given response was because something was a threat to peace.  It was necessary to move beyond Chapter VII, so that reaction was easier, more legitimate and addressed the evolving trends of terrorism.

Concerning the questions of the representative of the European Union about major challenges to mainstreaming human rights efforts and global trends relating to human rights, he said the global trend was negative, because Governments sought to balance human rights and countering terrorism, when the necessary response was to find a way to counter terrorism within human rights law.  He noted that, within the counter-terrorism task force, there was a gut reaction that, when they heard the human rights view, they wanted to then balance it out by hearing the security view.  However, the reverse should be done — to hear the security view and then the human rights view, so that counter-terrorism would always comply with human rights.  As to the question of how to involve other agencies not dealing with counter-terrorism, he said that conditions conducive to counter-terrorism could be enhanced, including in the field of economic and social development.  It was necessary to help build societies where human rights were fully enjoyed and, hence, any conditions conducive to the spread of terrorism were eliminated at the outset.

Regarding the request by the representative of Norway to elaborate on the reform of such resolutions as 1267, he spoke about replacing Chapter VII authority with the role of advisory and technical assistance by the United Nations.  The current system did not result in equal application in every country of the world and lacked uniformity.  It would likely take a while before the replacement with advice was in place, but, meanwhile, a lot could be done to introduce fairness in the system.

Concerning the statement of disagreement by the representative of the Russian Federation, he noted the country’s clear words and said that they had disagreements as to some of the legal issues, but that he took into account the critical views presented.  It was true that the proposal of the World Court of Human Rights was not likely to be implemented rapidly; however, it was necessary to address the accountability gap and ultimately create momentum to introduce something new at the United Nations level, which might be the World Court or might be something else.  He noted interest in hearing more opinions from the Member States about that issue.

Regarding the question of the representative of Denmark about challenges to institutions such as the counter-terrorism committee, he said that he saw a clear trend towards moving to a targeted and tailored approach with respect to individual countries.  The blunt approach of Chapter VII could be counterproductive, and a proactive approach, which the counter-terrorism committee was capable of providing, was necessary.  He said he was positive that they would deliver results in counter-terrorism only through compliance with human rights.  Also, counter-terrorism institutions were doing a better job than their image currently showed, because the news did not provide a nuanced approach regarding country situations.  He was convinced that moving towards a non-Chapter VII approach would improve results in counter-terrorism.

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