International organisations and anti-terrorist sanctions: no accountability for human rights violations?

Abstract

The targeted sanctions adopted by the UN Security Council against individuals and entities suspected of association with terrorism are managed through procedures that infringe fundamental human rights, and there are no mechanisms for actual accountability. With the exception of the ECJ in Kadi, municipal and regional courts tend to consider the UN Security Council's resolutions and domestic measures implementing them outside the scope of judicial review. This article argues that the Security Council is bound to observe human rights even in the context of international security action, and that States are not exonerated from international responsibility for violations committed under the umbrella of Chapter VII resolutions.

Keywords:

• counter-terrorism
• human rights
• individual sanctions
• international responsibility
• judicial review

Acknowledgements

I am grateful to Prof. Chandra Lekha Sriram, Dr. Olga Martin-Ortega, and Ms. Johanna Herman (Centre on Human Rights in Conflict, University of East London) and to Prof. Raffaele Cadin (University of Rome ‘Sapienza’) for their useful comments and suggestions.

Notes

1. Guidelines of the Committee for the Conduct of Its Work (Adopted on 7 November 2002, and amended on 10 April 2003, 21 December 2005, 29 November 2006, and 12 February 2007), para. 6 d). Available from: http://www.un.org/sc/committees/1267/pdf/1267_guidelines.pdf.

2. To give effect to UN resolutions, the EU Council adopted Common Positions 2001/930/CFSP and 2001/931/CFSP on specific sanctions to combat terrorism, implemented through EC regulations. Council Regulation (EC) 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism also empowered the EU Council to maintain its own list of individuals and entities to whom sanctions apply. Several common positions and regulations have updated both UN and EU lists. See Cameron (2003b) on EU blacklisting.

3. http://www.un.org/sc/committees/1267/consolist.shtml. Last updated on 24 March 2009.

4. See World Summit Outcome Document, 2005 [online]. Available from: http://www.un.org/ga/59/hlpm_rev.2.pdf, para. 89.

5. Other commentators, such as Delbrück (1994, p. 403), challenge, however, the restrictive interpretation.

6. Cameron (2006, p. 8) argues: ‘[i]n ‘legislating by list’, the Security Council acts as legislature, judiciary and executive’.

7. The Chamber of Appeal had also maintained that national tribunals cannot question the validity of UNSC binding resolutions, but merely verify their effects in the concrete case.

8. As indicated in SEGI and others, 23 May 2002, individuals have to exhaust remedies available at EC level.

9. Pastor Ridruejo (2007, p. 172, p. 175) distinguishes between ‘conventional’/‘treaty-based’ law (treaty norms) and ‘institutional law’ (binding decisions of international organizations).

10. ECHR standards are also applicable to the EU as such: according to Article 6 EU Treaty and Article 52.3 Charter on Human Rights and Fundamental Freedoms, the ECHR is a source of law for the EU as far as the scope of human rights and fundamental liberties is concerned (see also the Nold decision, 14 May 1974, para. 13). The ‘European Counter-Terrorism Strategy’ adopted by the European Council on 30 November 2005 expressed the commitment of the EU ‘to combat terrorism globally while respecting human rights’.

11. If no UN remedies are made available, and domestic decisions are seen as impairing UN measures, the current procedures should be replaced by a de-centralised sanctions regime, entrusting States with the nominal designation, on the basis of detailed uniform criteria laid down by the Sanctions Committee, and maintaining the Committee for coordination. Designating governments would disclose information to the States having jurisdiction over suspects in such a way as to allow the tribunals of the latter to perform their task.