UN Security Council / Al-Qaida sanctions regime: UN rights expert sounds alarm at delisting procedures

NEW YORK (2 November 2012) – The United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, urged the UN Security Council to bring its Al-Qaida sanctions regime in line with international human rights norms, and to redefine and empower the Office of the Ombudsperson, which investigates removal requests regarding individuals and entities from the sanctions list.

“The consequences of being on the Security Council’s Consolidated List are enormous, so checks and balances should be brought to international human rights standards,” Mr. Emmerson said as he presented his report to the UN General Assembly on the mandate of the Ombudsperson and its compatibility with international human rights norms, and its impact on the due process shortfalls observed in the Al-Qaida sanctions regime.

The sanctions regime was established by the Security Council in 1999 to avert an imminent threat to international peace and security. The Council, through its Sanctions Committee, is responsible for designating individuals and entities on the sanctions Consolidated List, and for their removal; however, the expert pointed out, “the Committee itself does not review the evidence underlying such proposals.”

“Once an individual or entity is placed on the list, States are required to impose a range of measures on those listed,” he explained. “Such sanctions result in a significant interference with the right to freedom of movement, property rights and the right to privacy in all its manifestations. In addition, placement on the list is not subject to any domestic or international judicial review.”

For the Special Rapporteur, the Security Council -as a political organ- does not have the procedural mechanisms necessary to protect the due process rights of the individual as enshrined in international human rights treaties, but it exercises both quasi-legislative and quasi-judicial functions under the sanctions regime.

In order to enhance due process in the Al-Qaida sanctions regime in 2009, the Council established an independent Ombudsperson to assist the Committee by investigating de-listing requests and subsequently making recommendations on them. Mr. Emmerson is however of the view that the Ombudsperson’s mandate falls significantly short of international minimum standards of due process.

“The Ombudsperson has no decision-making power, which resides with the Committee and the Security Council,” the Special Rapporteur said. “The office should be empowered to receive and determine petitions from designated individuals or entities, for their removal from the list, and for the authorization of humanitarian exemptions.” In his view, “the Office of the Ombudsperson should be renamed the Office of the Independent Designations Adjudicator (IDA).”

The expert highlighted the fact that States are under no obligation to disclose information to the Ombudsperson, who in turn has encountered considerable difficulties in obtaining information that States consider to be sensitive. “States should be under an obligation to disclose information to the IDA on conditions of confidentiality,” he said.

Furthermore, “information plausibly believed to be obtained through torture, should be excluded,” Mr. Emmerson stressed, while expressing concern that the Ombudsperson does not necessarily exclude information which was or may have been obtained through torture from her assessment.

For the Special Rapporteur, the right to legal presentation is fundamental to the delisting procedure. In his view, “indigent petitioners should receive funding for legal presentation, adequate interpretation and translation facilities in relation to the delisting procedure.”

“The Security Council should reconsider the introduction of a ‘sunset clause’ imposing a time-limit on the duration of all designations Al-Qaida sanctions regime,” added the independent human rights expert.

Ben Emmerson (United Kingdom) is the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. On 1 August 2011, he took up his functions on the mandate that was created in 2005 by the former United Nations Commission on Human Rights and renewed by the United Nations Human Rights Council for a three year period in September 2010. As Special Rapporteur he is independent from any Government and serves in his individual capacity. Learn more, log on to: http://www.ohchr.org/EN/Issues/Terrorism/Pages/SRTerrorismIndex.aspx

(*) Read the Special Rapporteur report to the General Assembly: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N12/522/54/PDF/N1252254.pdf?OpenElement or
http://www.un.org/en/ga/third/67/documentslist.shtml

The UN 2006 Global Counter-Terrorism Strategy: http://www.un.org/terrorism/strategy-counter-terrorism.shtml

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