Panel Discussion UN TERRORIST DESIGNATIONS AND SANCTIONS: A FAIR PROCESS AND EFFECTIVE REGIME? The Transnational Threats Project at CSIS, in cooperation with the Center on Global Counterterrorism Cooperation 5 June 2008 Remarks by Eric Rosand Senior Fellow, Center on Global Counterterrorism Cooperation The attacks of September 11 highlighted the increasingly transnational nature of the threat, which was no longer confined to a handful of state-sponsors. The Bush Administration immediately realized that it would need partners, both bilateral and multilateral, to help trace bank accounts, share information, secure borders, bring terrorists to justice, and build the capacity of all states to combat terrorism. Building on the wave of sympathy engendered by 9/11, the US sought to make counter-terrorism a priority for multilateral bodies and began to push for the adaptation of Cold War institutions. Both its proximity to Ground Zero, and it being the only universally representative global body empowered to address issues of international peace and security, made the UN the logical place for the US to turn its attention after the attacks. The UN s pre-9/11 effort was ambivalent. The new focus on al Qaeda, a the global threat which transcended traditional fault lines on the issue of terrorism, allowed UN members to unite to condemn a specific terrorist group and thus enabled the US to move terrorism near the top of the UN s agenda. Following the 9/11 attacks, the US convinced the Council to extend what had been a set of sanctions (asset freeze, arms embargo and travel ban) focused on Al-Qaida and the Taliban in Afghanistan to all parts of the globe.. The US energetically promoted their implementation against those individuals and entities associated with al Qaeda, the Taliban or Osama bin Laden included on the Security Council s Al-Qaida/Taliban committee s Consolidated List, which now counts well over 400 names. In an atmosphere of good-will, in which the committee trusted almost any name the US put forward, the committee added more than two-hundred names to the list in the weeks after 9/11. To this day, the Council s Al-Qaida/Taliban Sanctions Regime, and in particular its Consolidated List, remains a central element of the US strategy to combat the financing of terrorism. As the Security Council approaches the review of the mandate of the eight-person Monitoring Team charged with helping it monitor implementation of the sanctions, it
should reflect more broadly on the effectiveness of the Al-Qaida/Taliban Sanctions regime. In doing so there are at least three questions worth considering: 1) do the sanctions measures, which are largely unchanged since they were first set forth predating even the 9/11 attacks reflect the current nature of the threat; 2) does the Consolidated List reflect the threat posed today by Al-Qaida and the Taliban and related individuals and entities; and 3) and have we seen a steady improvement in the implementation of the measures by countries over the past few years if not, why not. I would argue that the answer to all of these questions is NO. With respect to the first question, the Monitoring Team is charged with, among other things, analyzing and recommending new measures to address the evolving Al-Qaida threat. Its reports are useful and of a high standard, providing the committee with rigorous analyses of the threat and numerous recommendations on how the existing measures could be refined and what new measures should be adopted. Between 2004 and 2007, the team presented more than 200 recommendations in its various reports, however, only a few were endorsed by the committee, which has had difficulty finding consensus on most of them and on just about anything. Partly as a result, the sanctions regime remains largely unchanged since September 2001 and has failed to keep up with the threat. The Monitoring Team s excellent reports are the only serious analysis being prepared by the UN on global terrorism an issue of universal concern and raise a number of interesting points that should not be limited to discussion in one of the UN s least transparent and least representative fora the Al-Qaida/Taliban Sanctions Committee. For example, the most recent report addresses issues such as Al-Qaida s use of the Internet, the use by non-muslim commentators and politicians of religious terms when describing Al-Qaida, the role of the media in disseminating Al-Qaida propaganda, the absence of any formal financial system, porous borders and limits to government authority in Afghanistan that makes it particularly difficult for it to implement the sanctions measures within its territory. These and many other issues raised in the Monitoring Team s reports merit consideration by a broader group of states and experts. While the committee may not be able to reach consensus on what to do with them, there may be other parts of the UN or other stakeholders (outside of the Council) that could usefully undertake follow-up action, particularly on issues related to de-radicalization, education, language, communications, development, and capacity building. With respect to the question related to the Consolidated List, the problems with it have been well-documented. Support for the entire sanctions regime and the credibility of the Council on this issue seems to be eroding as a result of concerns regarding both the quality of information on the list and the lack of fully transparent procedures for adding and removing names from the list. The committee has amended its guidelines, putting minimum evidentiary standards for submitting names and a more transparent listing process into place. It has also standardized mechanisms, including name transliteration and the use of reference numbers of all entries. However, as the Monitoring Team s reports continue to highlight, 2
none of these improvements have made much difference. Countries continue to complain that some entries on the list lack the basic identifiers necessary to make any check against them worthwhile and the limited information continue to sow frustration and disaffection among the people responsible for checking the List and on whom effective implementation most depends. In addition, it is now pretty much recognized by all who follow the work of the committee that the List, to which few countries now submit names, is far from an actual reflection of the threat. It includes deceased people and too few recently identified Taliban and Al-Qaida associates worthy of listing. In addition, those listed generally do not know why they have been placed under sanction as the committee has refused to obligate all countries to provide this information to an individual or entity before submitting its name to the committee for listing. This reluctance is not surprising when one of the P5 members once told me that we don t notify terrorists; we kill them. Support for the regime seems to be eroding as a result of concerns regarding the quality of information on the list and the lack of fully transparent procedures for adding and removing names from it. The Monitoring Team has cited a number of reasons why fewer and fewer states are putting forward names for inclusion on the list, including misgivings about the fairness of a tool which can freeze people's assets without telling them why. With respect to improving procedures for removing names from the list, the committee has been trying to strike the correct balance between its European members (and nonmembers), which generally favor greater transparency and more rights for those on the list, including possibly allowing them to approach the committee directly, and other, less forward-leaning members, such as China, Russia, and the United States, who argue, among other things, that Security Council sanctions are not punitive but rather preventative and of a temporary administrative character and that the council is a political rather than legal or judicial body. Therefore, the argument goes, the notions of legal due process, as enshrined in the International Covenant on Civil and Political Rights (ICCPR) and other relevant human rights instruments, do not apply to those on the list. This argument, however, is at odds with the views of many human rights experts, including the UN High Commissioner for Human Rights, who has stated that while the system of targeted sanctions represents an important improvement over the former system of comprehensive sanctions, it nonetheless continues to pose a number of serious human rights concerns related to the lack of transparency and due process in listing and delisting procedures. Although uncertainty remains as to whether these sanctions are criminal, administrative, or civil in nature, there is a growing sense that their imposition must, under the European Convention of Human Rights and the [ICCPR] respect certain minimum standards of procedural protection and legal certainty. There are, therefore, serious concerns that international, regional, or national courts might find the Security Council sanctions regime incompatible with due process norms, such as the rights to be informed of the charges against oneself, to be heard and defend oneself against these charges, and to an effective remedy. 3
Although the creation of a focal point in March 2007 to receive delisting requests directly from individuals and entities and to forward them to the committee for a decision is a positive step, it still leaves the ultimate decision for delisting squarely in the hands of the committee and does not, and can not address the right of listed individuals to an effective review mechanism, which requires a certain degree of impartiality and independence in the decision-making itself. Many critics believe that only the establishment of an independent panel of experts to consider delisting requests can ensure that individuals on the list are guaranteed their rights to effective review of their listing by a competent and independent mechanism and to effective remedy. The creation of the focal point is unlikely to be the end of the story on this issue, as more and more states are faced with a situation where national or international courts are seized with complaints challenging the legality of the UN sanctions and their implementation by states. The outcome of those various legal challenges to the individual listings and the procedures themselves is likely to influence the council s further treatment of these issues. In the meantime, the credibility of not just the Al-Qaida/Taliban Sanctions regime, but the wider UN counterterrorism program continues suffer. The perception that the UN itself is not respecting human rights norms as it implements its counterterrorism program undermines its ability to convince its member states to do so and tends to distract attention from some of the positive contributions the UN system is making in the fight against terrorism. One of the most delicate issues surrounding whether or not to create a new mechanism to review delisting requests is whether states would be willing to share often sensitive and sometimes classified information concerning the individual or entity with the panel members. The protection of classified information and sources and methods is a legitimate state interest, which cannot be easily dismissed. However, as the experience with IAEA inspectors and UNMOVIC inspectors has shown -- where individual member states shared extremely sensitive information with these entities this can be done, while still ensuring that the relevant UN actors has the necessary information to fulfill its mandate. Finally, as to the last question: have we seen a steady increase in the implementation of the sanctions since they were first imposed more than five years ago? Again, the answer is no. Whereas the asset freeze requirement has proved somewhat valuable in helping internationalize the policy of freezing terrorist assets, the travel ban and arms embargo have produced few tangible results. Implementation of the sanctions themselves has suffered. The Monitoring Team has often highlighted the widespread non-compliance. In fact, in December 2006, for the first time, the council directed the A-Qaida/Taliban committee to identify possible cases of state non-compliance with the sanctions. However, given the committee s consensus decisionmaking process and the tendency of Council members to protect countries in their respective regions from being targeted by the Council, this exercise will not lead to much, particularly when the vast majority of instances of non-compliance are due to a lack of 4
capacity rather than political will not to mention the significant problems with the Consolidated List. For example, according to the Monitoring Team s most recent report and at the most basic level effective implementation in many states is hindered by the fact that officials on the ground who have to implement the measures lack a clear understanding of the scope of national obligations under the sanctions regime. This is quite a remarkable finding given that the regime is largely unchanged since January 2002 and one of the primary tasks of both Committee and its Monitoring Team has been to explain the regime to states around the world. Clearly something is not working properly. Increased attention on capacity building related to the Al-Qaida/Taliban sanctions regime needs to be a priority. In this regard, much more attention needs to be given as to how to maximize the collaboration between the Council s outfit mandated to help countries build their counterterrorism capacities -- the Counter-Terrorism Committee and its Executive Directorate and the Al-Qaida/Taliban Committee and its Monitoring Team. In the end, a merger of the distinct but overlapping strands of the Council s counterterrorism work may be long overdue. As one can see, the picture I have painted of the Al-Qaida/Taliban Sanctions regime is not a rosey one. Given past experience, one can expect the Council, at most, to tinker with the measures or tweak the procedures for listing and delisting when it reviews the regime and extends the mandate of the Monitoring Team later this month. With the effectiveness and credibility of the regime at an all-time low, however, the key Council members will need to start asking some fundamental questions. For example, what policy objectives are they trying to achieve from the regime? Is the regime properly designed to allow them to do so? If not, how should it be changed? One hopes that a new US administration will take the lead in asking these difficult questions and take the steps necessary to make the regime a useful tool once again. 5