Rethinking terrorist blacklisting

Gavin Sullivan writes:

Terrorist blacklisting has been a central plank of the “war on terror” pursued by western states since 9/11. The idea is simple. International or regional bodies (such as the UN and EU) and states (such as the UK) designate individuals and groups thought to be terrorists or “associated with” terrorism, freeze their assets, impose travel bans, criminalise their membership and prevent others from supporting them. Yet after almost 10 years – following a plethora of successful legal challenges, the failure of reforms that have tried to render listing procedures compliant with human rights, and widespread criticism by judges and other officials – the policy of blacklisting is now facing a fundamental crisis of legitimacy.

The evolution of this crisis, and the possible ways of moving beyond it, are detailed in a critical report launched today by the European Centre for Constitutional and Human Rights (ECCHR), which suggests that the time has come for radically rethinking the policy of blacklisting. Following the recent recommendations of Martin Scheinin, the outgoing UN special rapporteur on the promotion and protection of human rights while countering terrorism, it calls for the two key security council resolutions underpinning the blacklisting system to be abolished.

Resolution 1267 (and the resolutions that amended it) created the UN sanctions committee, comprised of all members of the security council, to compile a list of individuals and groups “associated with” Osama bin Laden, al-Qaida and the Taliban and compel states to bring proceedings or penalise those designated. Resolution 1373 requires states to criminalise the support and financing of terrorism while giving them the autonomy to set up their own domestic blacklists. The EU has used it to set up its own list criminalising groups such as the PKK and the LTTE as terrorist organisations.

The most persistent criticism of both regimes is that they breach fundamental rights. Most listing decisions are based on secret intelligence material that neither blacklisted individuals nor the courts responsible for reviewing the implementation of the lists will ever see. As courts have repeatedly affirmed, one cannot oppose allegations against them (and exercise their right to judicial review) if they are prevented from knowing what the allegations actually are. Such treatment is a fundamental breach of the right to a fair trial. Yet it is an ongoing Kafkaesque reality for the majority of those who are placed on the blacklists.

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