The European Center for Constitutional and Human Rights has published a landmark report on the international blacklisting regime.
The report, Blacklisted: Targeted sanctions, pre-emptive security and fundamental rights by Gavin Sullivan and Ben Hayes, documents the development of terrorism blacklisting at the UN, European Union (EU) and national levels and critically evaluates the legacy of the ‘war on terror’ as well as examining how new configurations of power, violence and social control have emerged.
The first blacklisting regime was created by the UN Security Council binding resolutions (UNSCR) under Chapter VII of the UN Charter for all national governments. The report focuses on two primary UN blacklisting regimes, namely UNSCR 1267 targeting al-Qaida in 1999 and UNSCR 1373, a parallel blacklisting regime applicable at the national level, just after 9/11. The EU introduced a parallel sanctions system implementing both the UN resolutions.
The regimes, which can only be described as ‘Kafkaesque’, involve combinations of procedural limbo and interference with the lives of individuals who are suspected terrorists by imposing sanctions such as asset freezing, restriction on movement etc. Resistance movements are also brought into the scheme whereby they are defined as terrorist organisations irrespective of any legitimate struggle for freedom against oppressive regimes.
The authors evaluate procedural reforms of the two regimes at the UN and EU level in response to legal challenges and conclude that these fall far short of meeting the accepted standards of due process. The right to be informed, the right to be heard, the right to a fair trial, the right to judicial review and an effective remedy arejust some of the rights breached by these regimes. The asset freezing measures also interfere with the property rights of those who are blacklisted.
The report provides an overview of twelve of the most important legal cases both successful and unsuccessful in the European court system. Some of the cases established important legal principles, whilst others highlighted the broader political and social impacts of the blacklisting regimes. It is ironic that some cases have taken years of legal wrangling to establish the reasons for blacklisting. Occasionally when a legal victory has been won, the UN and EU authorities have moved to quickly to find a way to reassert their control.
The merit of the report is that it does not confine itself to the legal arguments, necessary as they are, but links them to the broader political impact at all levels. At a stroke, the UN Security Council transformed itself into a global executive body creating new quasi-legislative counter-terrorism powers beyond the scope of judicial review. These powers were outsourced nationally so that ruling elites could use them as a cover to criminalise resistance movements and isolate dissidents. Hence, the authors argue that blacklisting has undermined the resolution of long-standing and complex struggles for self determination. As a corollary, in Europe and North America, diaspora communities such as the Kurds, Palestinians, Tamils, Baluchs and others have all come under suspicion through their presumed association with resistance organisations in their respective homelands. Charities and solidarity campaigns have been criminalised for their suspected association with blacklisted organisations. Individuals who have had their assets frozen live in a nightmarish world where access to cash is tightly controlled with the requirement to report on every penny spent. Women and children in the family have borne the brunt of these restrictions which often destroy family life.
The most pernicious aspect of these administrative procedures is the underlying rationale which legitimises pre-emptive (or more accurately pre-crime) security strategies with the objectives of tracing, intervening and disabling terrorist activities before any crime is committed. These circumvent the ‘normal’ criminal procedures by placing the power to designate an individual or a group as ‘terrorist’ in the hand of the executive. This decision is made on the basis of suspicion and secret evidence which cannot be tested in open court. Furthermore, using an advanced information technology which enable ‘real-time’ information to be compiled, stored and shared amongst state institutions and private sector organisations, blacklists could play an increasingly central role in ‘risk profiling’ for immigration and border control and in policing and criminal justice.
The authors argue that following legal and political challenges, the entire system is now in a crisis of legitimacy. They find that the procedural reforms adopted thus far are too little and too late and so great are the fundamental flaws of the system that the best option is the abolition of the blacklisting regimes. The UN could then assume the role of an advisory or standard-setting body in counter-terrorism, whilst domestic courts could provide due process, whatever their limitations. They further argue that terrorism should be precisely defined in law so that it does not capture legitimate political activity, expression, association or armed insurgency against oppressive regimes. At the European level, the system should be brought within the existing criminal law provisions subject to open evidence, high standards of proof and conviction rather than undisclosed secret intelligence.
The authors call for a parallel debate alongside the conventional discussion on ‘liberty v. security’ which would challenge the politics of fear and focus on different security questions about the kind of political community we want and the values it should uphold. Human rights activists and lawyers have formulated the ‘2006 Ottawa Principles of Anti-Terrorism and Human Rights’ which could provide standards against which blacklisting regimes should be measured, on issues such as legal necessity, clarity of purpose, definition, reviewability and proportionality.
This timely and thorough report is welcome because unlike arbitrary detention, control orders, extraordinary rendition and torture which have been challenged by many human rights groups, blacklisting regimes have received little attention.
Download the full report here (pdf file, 716kb)
Download the executive summary here (pdf file, 300kb)