Human Rights Challenges in Implementing Smart Sanctions against ISIL (Da'esh) and Al Qaida

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Human Rights Challenges in Implementing Smart Sanctions

against ISIL (Da’esh) and Al Qaida

_____________________________________________________________________

Bethany Bezzina

Supervisor: Prof Harmen van der Wilt

LLM International and European law: Public International Law

University of Amsterdam 8 January 2018

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Abstract

Counterterrorism measures should be implemented in light of human rights obligations. The United Nations Security Council, in addressing terrorist threats, has passed a number of resolutions with the aim to prevent the financing of terrorist groups, to prevent any affiliates from travelling and by imposing arms embargoes. The initial 1267 sanctions regime was faced with a lot of critique due to its lack of transparency in the listing and de-listing procedures; this was especially so after the 9/11 attacks, where an exponential number of persons/entities were included in the list. This paper shall thus address the development of the 1267 regime by going through the applicable resolutions and looking into the implementation of the regime. The second half of the paper shall then focus on the interpretation of the lacunae present in the due process by focusing on national and regional judgments, with particular reference to the Kadi cases. The right to be notified of the listing, the right to be heard, and the right to an effective remedy shall be dealt with individually in light of the Office of the Ombudsperson (and the developments thereto). The ultimate aim of this study is to understand the changes to the original system, and to assess whether the progress made to date to these three principles satisfy the requirements of due process.

Keywords: counterterrorism; smart sanctions; due process; right to be heard;

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Table of Legal Instruments

International Instruments

• United Nations, Charter of the United Nations, 24 October 1945, UNTS XVI • UN General Assembly, International Convention for the Suppression of the

Financing of Terrorism, 9 December 1999, No. 38349

• UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171

UN Resolutions

• UN General Assembly, 2005 World Summit Outcome: resolution I adopted by

the General Assembly, 24 October 2005, A/RES/60/1

<http://www.un.org/womenwatch/ods/A-RES-60-1-E.pdf>

• United Nations, General Assembly, The United Nations Global Counter-Terrorism Strategy, A/RES/60/288 (8 September 2006)

<http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/60/288> • UN Security Council, Security Council Resolution 1267 (1999) [Afghanistan],

15 October 1999, S/RES/1267 (1999)

• UN Security Council, Security Council Resolution 1333 (2000) [Afghanistan], 19 December 2000, S/RES/1333 (2000)

• UN Security Council, Security Council Resolution 1373 (2001) [on threats to international peace and security caused by terrorist acts], 28 September 2001, S/RES/1373 (2001)

• UN Security Council, Security Council Resolution 1390 (2002) [on the situation in Afghanistan], 16 January 2002, S/RES/1390 (2002)

• UN Security Council, Security Council Resolution 1525 (2004), 30 January 2004, S/RES/1525 (2004)

• UN Security Council, Security Council Resolution 1730 (2006) General Issues Relating to Sanctions, 19 December 2006, S/RES/1730 (2006)

• UN Security Council, Resolution 1735 (2006) Threats to International Peace and Security Caused by Terrorist Acts, 22 December 2006, S/RES/1735 (2006)

• UN Security Council, Security Council resolution 1822 (2008) [on continuation of measures imposed against the Taliban and Al-Qaida], 30 June 2008, S/RES/1822 (2008)

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• UN Security Council, Security Council Resolution 1904 (2009) [on continuation of measures imposed against the Taliban and Al-Qaida], 17 December 2009, S/RES/1904 (2009)

• UN Security Council, Security Council Resolution 1988 (2011) [on establishment of a new Sanctions Committee focusing on the threat from those associated with the Taliban], 17 June 2011, S/RES/1988 (2011)

• UN Security Council, Security Council Resolution 1989 (2011) [on expansion of the mandate of the Ombudsperson established by the resolution 1267 (1999) and the establishment of a new Al-Qaida sanctions list], 17 June 2011, S/RES/1989 (2011)

• UN Security Council, Security Council Resolution 2161 (2014) [on threats to international peace and security caused by terrorist acts by Al-Qaida], 17 June 2014, S/RES/2161 (2014)

• UN Security Council, Security Council Resolution 2253 (2015) [on renaming of Qaida Sanctions Committee as “1267/1989/2253 ISIL (Da’esh) and Al-Qaida Sanctions Committee” and the Al-Al-Qaida Sanctions Lists as “ISIL (Da’esh) and Al-Qaida Sanctions List” and on extension of the mandate of the Office of the Ombudsperson for a period of 24 months from the date of expiration of its current mandate in Dec. 2017], 17 December 2015, S/RES/2253 (2015)

• UN Security Council, Security Council Resolution 2368 (2017), 20 July 2017, S/RES/2368 (2017)

European Instruments

• Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 52

• Council Regulation (EC) No 337/2000 of 14 February 2000 concerning a flight ban and a freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ L 43, 16.2.2000, p.1)

• Council Regulation (EC) No 467/2001 of 6 March 2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000

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List of Judgments

International Tribunals

• Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/1, Special Tribunal for Lebanon, 16 February 2011

European Union Judgments

• Poulsen and Diva Navigation, Case C-286/90 [1992] ECR I-6019

• Ahmed Ali Yusuf and Al Barakaat International Foundation v Council of the EU and Commission of the EC (Al Barakaat CFI Judgment), Case T-306/01, and Yassin Abdullah Kadi v Council of the EU and the Commission of the EC (Kadi CFI Judgment), Case T-315/01 (OJ 2005 C 281)

• Gerda Möllendorf and Christine Möllendorf-Niehuus, Judgment of the Court (Second Chamber) 11 October 2007 ECLI:EU:C:2007:596

• Yassim Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (2008) Judgment of the Court (Grand Chamber) ECLI:EU:C:2008:461

• Yassin Abdullah Kadi v European Commission [2010], Case T-85/09 ECR II-5177 (30 September 2010)

• Court of Justice of the European Union (Grand Chamber), European Commission and ors v Kadi, Judgment, Case C-584/10 P, Case C-593/10 P, Case C-595/10 P, ILEC 031 (CJEU 2013) 18 July 2013

European Court of Human Rights

• Nada v Switzerland, Merits and just satisfaction, App no 10593/08 (2012) ECHR 1691, IHRL 2059 (ECHR 2012), 12 September 2012, European Court of Human Rights, Grand Chamber

Other Judgments

• Abdelrazik v Minister of Foreign Affairs and Attorney General of Canada, First instance judgment, 2009 FC 580, ILDC 1332 (CA 2009), 4 June 2009. Canada [2009]

• Her Majesty’s Treasury (Respondents) v Mohammed Jabar Ahmed and others (FC) (Appellants), Her Majesty’s Treasury (Respondent) v Mohammed al-Ghabra (FC) (Appellant), R (on the application of Hani El Sayed Sabaei Youssef) (Respondent) v Her Majesty’s Treasury (Appellant) UKSC 2 27 January 2010

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Abbreviations

CFSP Common Foreign and Security Policy

CJEU Court of Justice of the European Union

ECHR European Convention on Human Rights

ECtHR European Court of Human Rights

EU European Union

ICCPR International Covenant on Civil and

Political Rights

ISIL Islamic State of Iraq and Levant

ISIS Islamic State of Iraq and Syria

ODIHR OSCE’s Office for Democratic

Institutions and Human Rights

OSCE Organisation for Security and

Co-operation in Europe

STL Special Tribunal for Lebanon

UN United Nations

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Chapter 1 - Introduction

“The promotion and protection of human rights for all and the rule of law is essential to all components of the Strategy, recognising that effective counter-terrorism

measures and the promotion of human rights are not conflicting goals, but complementary and mutually reinforcing.”1

For years, there have been debates on the definition of ‘international terrorism’, and even though throughout the years there seemed to be no general consensus, the United Nations (‘UN’) still came up with positive obligations imposed on States to counter terrorism.2_{Following the 9/11 attacks in the United States, a}

number of authors and States started talking about the ‘fight against terrorism’ and a ‘global war on terror’.3

The 1999 International Convention for the Suppression of the Financing of Terrorism4_{notes as unlawful ‘any act intended to cause death or serious bodily injury}

to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purposes of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or to abstain from doing any act’.5_{However, it was only in 2011}

that an international court, namely the Special Tribunal for Lebanon (‘STL’) came up with a definition of terrorism, which exists under customary international law.6

According to the STL, there has been a general formation of opinio juris within the international community, which is supplemented by consistent state practice in relation to international terrorism.7_{It stated that three elements are required: ‘(i) the}

perpetration of a criminal act…or threatening such an act; (ii) the intent to spread

1_{United Nations, General Assembly, The United Nations Global Counter-Terrorism Strategy,} A/RES/60/288 (8 September 2006)

<http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/60/288>

2_{Eva Herschinger, ‘A Battlefield of Meanings: The Struggle for Identity in the UN Debates on a} Definition of International Terrorism’, (2013) 25/2 Terrorism and Political Violence <http://www.tandfonline.com/doi/pdf/10.1080/09546553.2011.652318?needAccess=true> accessed 10 October 2017 183

3_{International Committee of the Red Cross, ‘The protective scope of Common Article 3: more than}

meets the eye’ (2011) 93/881 International Review of the Red Cross

https://www.icrc.org/spa/assets/files/review/2011/irrc-881-pejic.pdf accessed 10 October 2017 8 4_{UN General Assembly, International Convention for the Suppression of the Financing of Terrorism,} 9 December 1999, No. 38349

5_{ibid. Article 2(1)(b)}

6_{Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration,} Cumulative Charging, STL-11-01/1, Special Tribunal for Lebanon, 16 February 2011, para 83

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fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element.’8

Given this threat to the international peace and security,9_{the UN Security}

Council, working under Chapter VII of the Charter of the United Nations 10

(hereinafter the ‘UN Charter’), has given its recommendations, and imposed measures on its Member States;11_{namely the imposition of the so called smart sanctions against}

individuals or entities who have connexions with ISIL and Al-Qaida.

The 1267 sanctions, 12_{which were imposed against the Taliban, were}

considered to be ground breaking, especially after its mandate and scope was expanded by Resolution 1390.13_{The original 1267 regime targeted political and}

military officials within Afghanistan, however the subsequent resolution expanded the list by having a newly formed global terrorist network.14_{The 1267 Sanctions}

Committee was in charge of the listing and de-listing procedures. This meant that it was solely in the hands of the Security Council to blacklist an individual, thus making that person a threat for the international peace and security.15_{However, the 1267}

regime was seen as a failure in relation to the due process right of the individuals who were blacklisted.16_{In fact, thereafter, there were a number of cases decided by both}

national and regional courts on the failure to protect certain procedural rights governed under human rights law.

Therefore, the main problem with this regime was that it was imposing measures against individuals and entities, without the necessary protections and

8_{ibid. para 85}

9_{The Security Council in Resolution 1267 (1999) had reiterated that the suppression of terrorism is key} to the maintenance of the international peace and security. In Resolution 1390 (2002) it further reaffirmed that an act of terrorism is a threat to the international peace and security.

10_{United Nations, Charter of the United Nations, 24 October 1945, UNTS XVI} 11_{Article 39 UN Charter}

12_{See UN Security Council, Security Council Resolution 1267 (1999) [Afghanistan], 15 October 1999,} S/RES/1267 (1999)

13_{UN Security Council, Security Council Resolution 1390 (2002) [on the situation in Afghanistan], 16} January 2002, S/RES/1390 (2002)

14_{Lisa Ginsborg, ‘UN sanctions and counter-terrorism strategies: moving towards thematic sanctions} against individuals?’ in Herik (ed), Research Handbook on UN Sanctions and International Law (1st edn, Edward Elgar Publishing 2017) 74

15_{ibid. 75-76} 16_{ibid. 77}

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recourse, which are essential principles of natural justice and the basic principles of fairness.17_{Most importantly, the measures adopted by the Security Council are by}

their nature preventative, however human rights advocates believe that the longer the person is on the sanctions list, the effect will be more punitive than preventative.18

It has been held by the UN High Commissioner for Human Rights, the Council of Europe, and OSCE’s Office for Democratic Institutions and Human Rights (‘ODIHR’) in a joint statement in November 2001 that even though specific measures have to be adopted due to terrorism threats, governments should ensure that they do not take any measures that would violate the fundamental rights and freedoms.19

The issue of Chapter VII measures, and the respect to human rights when adopting said measures has to be approached with care, in that one cannot simply presume that the Security Council did not want to affect human rights with their measures.20_{Undoubtedly, the Security Council will not adopt a measure that is}

contrary to a jus cogens.21_{However it is good to keep in mind that human rights}

treaties do provide for derogations and limitations of certain human rights.22

Throughout this study the focus shall be on the developments that were made to the original 1267 sanctions regime, mainly because of its shortcoming in relation to due process. This assessment shall be done in light of human rights obligations that are imposed on States under international and regional law. In order to do so, the first half of this study will discuss the applicable Security Council resolutions, an explanation of the measures, and the listing and de-listing procedures as laid down in the resolutions. In order to evaluate these measures, the implementation of the sanctions imposed by the Security Council shall also be taken into account, especially at a regional level within the European Union (‘EU’). This is being done due to the

17_{Kimberly Prost, ‘Security Council sanctions and fair process’ in Herik (n 14) 216}

18_{United Nations, General Assembly, Human Rights Council, ‘Report of the United Nations High} Commissioner for Human Rights on the Protection of Human Rights and Fundamental Freedoms While Countering Terrorism,’ A/HRC/8/13, 2 June 2008. Paras 47, 50

19_{Joint statement by Mary Robinson, UN High Commissioner for Human Rights, Walter Schwimmer,} Secretary General of the Council of Europe, and Ambassador Gerard Stoudmann, Director of the OSCE Office for Democratic Institutions and Human Rights, 29 November 2001 <http://www.unhchr.ch/huricane/huricane.nsf/view01/4E59333FFC5341A7C1256B13004C58F5>   20_{Erika de Wet and Andre Nollkaemper (eds.), Review of the Security Council by Member States,} (Intersentia 2003) 34

21_ibid.

22_{See UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation}

Provisions in the International Covenant on Civil and Political Rights, 28 September 1984,

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critical focus of the European court on the fundamental rights and freedoms of persons. It is for this reason that there shall be a brief narrative as to the institutional aspect, focusing on a normative assessment of the system.

The second half of the study will then go into the human rights implications when implementing said measures, focusing on the principles of due process. In order to do so, an analysis of regional and national court judgments shall be taken into account, with particular reference to the landmark judgment of the Court of Justice of the European Union in Kadi.23_{Finally there shall be an evaluation as to how the}

process has changed after this landmark judgment was delivered. This leads to an assessment as to whether the deficiencies found in the UN system in the original 1267 regime, that were accentuated in certain judgments, have been addressed in the most recent Security Council Resolutions to date, and whether there is still room for improvement within the realm of due process.

This thorough analysis is being done because it is the belief of the author that for a full appreciation of the issue of the due process dilemma that emerged from the 1267 sanctions regime, it requires the reader to fully understand the context within which this problem has developed throughout the years.

23_{Yassim Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union}

and Commission of the European Communities (2008) Judgment of the Court (Grand Chamber)

ECLI:EU:C:2008:461[Kadi CJEU I]

This shall thus follow the normative assessment which would have been previously addressed, with the focus now being on the substance of the European judgments.

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Chapter 2 – Smart Sanctions

2.1 Introduction

The Security Council has used international sanctions to address threats to the international peace and security, as they are regarded as a vital tool in tackling certain issues.24_{They are in actuality considered to be a primary mechanism in response to}

international terrorism, and are also crucial in addressing other challenges within the international legal order.25

Smart or targeted sanctions are designed in a different way than comprehensive sanctions because the focus of the former is to implement measures impacting leaders and their supporters, rather than sanctioning an entire country.26

There are various kinds of targeted sanctions, however the two prevalent in counter-terrorism measures are ‘individual/entity sanctions’, which normally take the form of travel bans and asset freezes, and sectoral sanctions, which predominantly take the form of ‘arms embargoes’.27

Smart sanctions are unreservedly discriminating policy measures that are focused on certain specific individuals/entities and/or regions.28_{The reason why this}

regime is generally preferred over other types of sanctions is due to the fact that by their very nature they try to avoid as much as possible “collateral consequences to civilian populations.”29_{The intended purpose of smart sanctions is to vitiate targeted}

individuals from getting hold of those means that would enable conflicts, or that would otherwise be considered as a threat to the international peace and security. In so doing, these sanctions attempt to lessen any possible effect that might impact the population in general.30

24_{Sue E Eckert, ‘The evolution and effectiveness of UN targeted sanctions’ in Herik (n 14) 52}

25_{Jack I Garvey, ‘Targeted Sanctions: Resolving the International Due Process Dilemma’ (2016) 50}

Texan International Law Journal

<http://heinonline.org/HOL/Page?handle=hein.journals/tilj50&collection=journals&id=593&startid=& endid=644> accessed 20 October 2017. 553

26_{Targeted Sanctions Consortium, The Effectiveness of United Nations Targeted Sanctions: Findings}

from the Targeted Sanctions Consortium (TSC) (2013)

<http://repository.graduateinstitute.ch/record/287976/files/effectiveness_TCS_nov_2013.pdf> accessed 20 October 2017. 9 27_{ibid. 15} 28_{supra cit (n 24) 53} 29_{supra cit (n 25) 553} 30_{supra cit (n 24) 54}

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2.2 Relevant Security Council Resolutions

As was adduced in the Introduction, Resolutions 1267 and 1390 were ground-breaking resolutions passed by the Security Council. Resolution 1267 (1999)31

affected the Afghan faction of the Taliban, demanding the faction to comply with its obligations under previous resolutions, particularly to stop providing shelter for international terrorists, and to turn over Osama bin Laden (hereinafter referred to as the ‘1267 regime’).32_{This resolution imposed assets freeze along with a limited air}

embargo on the Taliban.33_{Eventually the measures adopted by the Security Council}

were targeted travel bans, assets freeze and arms embargo against specific individuals and entities.34_{Resolution 1390 followed the Taliban’s fall from power in Afghanistan,}

and the sanctions were no longer targeted at particular leadership positions within the country, but it extended its reach to a new global terrorist network.35_{Furthermore, this}

resolution was subject to review in twelve months, whereby the Security Council would either decide to continue the measures, or to improve them further.36

Another significant resolution is the one establishing the Office of the Ombudsperson in 2009,37_{which was passed to improve the lack of due process within}

the 1267 regime.38_{Resolution 1988 (2011)}39_{and 1989 (2011)}40_{then split the list of}

individuals and entities that were subject to the above-mentioned measures into two. The Committee was thereafter known as the Al-Qaida Sanctions Committee, whilst a separate Committee was formed pursuant to Resolution 1988 (2011), whose task was

31_{supra cit (n 12)}

32_{Resolution 1267 clause 1 and 2 respectively} 33_{Resolution 1267 clause 4}

34_{United Nations Security Council Subsidiary Organs, ‘Security Council Committee pursuant to} resolutions 1267 (1999) 1989 (2011) and 2253 (2015) concerning ISIL (Da’esh) Al-Qaida and

associated individuals, groups undertakings and entities’ United Nations

<https://www.un.org/sc/suborg/en/sanctions/1267> accessed 21 October 2017 35_{supra cit (n 14) 74}

36_{Resolution 1390 (2002) para 3}

37_{UN Security Council, Security Council Resolution 1904 (2009) [on continuation of measures}

imposed against the Taliban and Al-Qaida], 17 December 2009, S/RES/1904 (2009)

38_{The Office of the Ombudsperson and its working shall be discussed in greater detail in Chapter 2.6.1} 39_{UN Security Council, Security Council Resolution 1988 (2011) [on establishment of a new Sanctions}

Committee focusing on the threat from those associated with the Taliban], 17 June 2011, S/RES/1988

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40_{UN Security Council, Security Council Resolution 1989 (2011) [on expansion of the mandate of the}

Ombudsperson established by the resolution 1267 (1999) and the establishment of a new Al-Qaida sanctions list], 17 June 2011, S/RES/1989 (2011)

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to supervise and manage the measures adopted against those individuals and entities associated with the Taliban.41

In the later Resolution 2253 (2015),42_{the Security Council decided to expand}

further the listing criteria to cover those individuals and entities that have ties with the Islamic State of Iraq and the Levant (ISIL). The Sanctions Committee was thus renamed to “1267/1989/2253 ISIL (Da’esh) and Al-Qaida Sanctions Committee”, whilst the sanctions list was renamed “ISIL (Da’esh) and Al-Qaida Sanctions List”.43

Therefore, in conformance with Resolutions 1267 (1999), 1989 (2011) and 2253 (2015), the Security Council Committee manages the sanctions imposed on ISIL (Da’esh), Al-Qaida, and any associated individuals, groups, undertakings and entities (hereinafter referred to as ‘the Committee’).

More recently, the Security Council passed Resolution 2368 (2017),44_which

reaffirmed the sanctions listed out herein. It is interesting to note that the resolution specifically stipulates that the sanctioned measures are not dependant on any criminal standards prescribed under national law, and are preventative.45

It is clear that the sanctions applicable to terrorists are constantly evolving, and as opposed to their original objective to hand over Osama bin Laden, now the primary focus has been widened exponentially. The main purpose of the sanctions now is to limit as far as possible the resourcing of ISIL, Al-Qaida and any associated individual and/or entity, whilst limiting their worldwide reach by imposing asset freeze, travel bans and arms embargoes.46

Below there shall be an evaluation of the types of sanctions that are imposed by the Security Council in the above-mentioned resolutions, including the listing and de-listing procedures, and the functions of the Office of the Ombudsperson. This is

41_{Therefore, at that point, the split in the regime meant that there were those sanctions that are directly} applicable to the Taliban, and the 1267 measures applicable to Al Qaeda and of its associated individuals/entities.

42_{UN Security Council, Security Council Resolution 2253 (2015) [on renaming of Al-Qaida Sanctions}

Committee as “1267/1989/2253 ISIL (Da’esh) and Al-Qaida Sanctions Committee” and the Al-Qaida Sanctions Lists as “ISIL (Da’esh) and Al-Qaida Sanctions List” and on extension of the mandate of the Office of the Ombudsperson for a period of 24 months from the date of expiration of its current mandate in Dec. 2017], 17 December 2015, S/RES/2253 (2015)

43_{ibid. para 1}

44_{UN Security Council, Security Council Resolution 2368 (2017), 20 July 2017, S/RES/2368 (2017)} 45_{ibid. para 64}

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being done in order to understand critically the way that these sanctions work, and to be able to analytically discuss the due process dilemma that stems out from these resolutions later on in Chapter 4.

2.3 Asset Freezing

Asset freezing is a preventative measure that is aimed to prevent terrorist supporters to transfer money to other terrorists, in order to aid them in carrying out their plans.47_{For a person or entity to fall within the remit of the resolutions, the}

requirements are either that a person is suspected to be a terrorist, or else that person/entity has links to a suspected terrorist organisation.48_{As the wording}

suggests itself, the emphasis is on the word ‘suspected’; this thus means that there would not be proof beyond reasonable doubt (that is the proof required under national criminal law for the conviction of a person) of a persons’ or entity’s link to the terrorist groups. In terms of ownership/possession of the frozen funds, they will still remain the property of the ‘blacklisted’ person/entity, and as soon as the name is removed from the list, the person/entity will then regain access of the funds.49

This sanctions regime applies to the entirety of assets, funds and other economic resources that are owned and/or controlled by those individuals, groups, undertakings and entities that are placed on the Sanctions list. However, asset freeze also applies to those funds that are derived from any property that is owned or controlled, directly or indirectly by the listed individuals, or where ownership or control lies on a person that is acting on behalf of, or at the direction of the listed individual.50

2.3.1 Exemptions to Asset Freezing

Asset freezing shall not apply to those funds that the Committee deems them to be indispensable for the basic expenditures, including but not limited to the

47_{Melissa van den Broek et al, ‘Asset Freezing: Smart Sanction or Criminal Charge?’ (2010) 27/72}

Merkourios: Utrecht Journal of International and European Law

<https://utrechtjournal.org/articles/abstract/10.5334/ujiel.ah/> accessed 21 October 2017 19. See also Al-Qaida Sanctions Committee, Assets Freeze: Explanation of Terms, 24 February 2015 para 26, where it is reiterated that “the assets freeze measures are preventative in nature and are not reliant

upon criminal standards set out under national law.”

48_{ibid. 19}

49_{Al-Qaida Sanctions Committee, Assets Freeze: Explanation of Terms, 24 February 2015} <https://www.un.org/sc/suborg/sites/www.un.org.sc.suborg/files/eot_assets_freeze_-_english.pdf> accessed 21 October 2017

50_{ibid. para 3. See also Resolution 2253 (2015) para 2(a), which was recently renewed by Resolution} 2368 (2017) in para 1(a).

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payment of rent, foodstuffs, medical treatment, and payment of professional fees.51

This targeted sanction does not apply in relation to those funds that are essential for extraordinary expenses.52

Resolution 2368(2017) reaffirmed the Focal Point mechanism, where, provided that a request has already been submitted and considered by the State of residence of the listed individual/entity, it may still receive requests for exemptions. Once a request has been received by the Focal Point, this shall be transmitted to the Committee for deliberation, and as soon as a decision is reached, the Committee shall, through the Focal Point, notify the person requesting the exemption.53

In the case where there is a de-listing petitioner, the Ombudsperson may request the Committee to grant said petitioner an exemption so that the person would be able to meet the travel expenses that would be incurred in order to travel to the office of the Ombudsperson where the Ombudsperson is not able to go to the state of residence of the petitioner.54

2.4 Travel Ban

The travel ban was set out in Resolution 2161 (2014),55_{updated in Resolution}

2253 (2015)56_{and most recently renewed in Resolution 2368 (2017).}57_{It states that}

States should “prevent the entry into or transit through their territories of these individuals, provided that nothing in this paragraph shall oblige any State to deny entry or require the departure from its territories of its own nationals and this paragraph shall not apply where entry or transit is necessary for the fulfilment of a judicial process or the Committee determines on a case-by-case basis only that entry or transit is justified”.58

The purpose of the ban is consequently to limit the mobility of those individuals placed on the sanctions list. Much like the asset freezing, the travel ban is

51_{Resolution 2368 (2017) para 81(a)} 52_{ibid. para 81(b)}

53_{Resolution 2368 (2017) para 82(a)}

54_{UN Security Council, Security Council Resolution 2161 (2014) [on threats to international peace}

and security caused by terrorist acts by Al-Qaida], 17 June 2014, S/RES/2161 (2014) para 61. More

information on the establishment of the Office of the Ombudsperson shall be provided for in Section 2.6.1 below.

55_Ibid.

56_{Resolution 2253 (2015)} 57_{Resolution 2368 (2017)}

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also a preventative measure, and does not rely on any established criminal standards under domestic law.59_{In relation to the freezing of assets explained above, this will}

also apply to those funds, economic resources and financial assets that are directly or indirectly available for the benefit and enjoyment of the individuals on the sanctions list vis-à-vis their travel.60

The implementation of the travel ban is up to the member states of the UN, and it requires States to prevent the listed individuals from entering and transiting their territories. This is however subject to certain exceptions and exemptions which shall be dealt with hereunder.61_{It is also important to emphasise that the travel ban}

applies in any given circumstance, irrespective of the manner with which the listed individual enters the territory of a member state, and the travel documents appertaining to the listed individuals.62

2.4.1 Exceptions and Exemptions to the Travel Ban

The two exceptions to the travel ban are addressed in paragraph 1(b) of Resolution 2368 (2017): firstly, Member States are not obliged to require the departure of, or deny entry from the Member State’s territory of its nationals; secondly, the travel ban is lifted in cases where this is essential for a person to enter or transit a Member State in order to fulfil a judicial process.

The Sanctions Committee is also capable of deliberating on an exemption to the travel ban, however this is assessed on a case-by-case basis, and only where entry into a State or transiting through a State is justified.63

In cases where there is a petitioner, and the Ombudsperson is not able to interview that person in his/her State, it is possible for the Ombudsperson to request the Committee to grant an exemption to the restrictions imposed on the person (asset

59 _{Al-Qaida Sanctions Committee, Travel Ban: Explanation of Terms, 24 February 2015} <https://www.un.org/sc/suborg/sites/www.un.org.sc.suborg/files/eot_travel_ban_english.pdf> accessed 23 October 2017 para 2

60_{ibid. para 6} 61_{ibid. para 5 and 7} 62_{ibid. para 6}

63_{See Section 12 of Security Council Committee Pursuant to Resolutions 1267 (1999), 1989 (2011),} and 2253 (2015) concerning ISIL (Da’esh), AL-Qaida and associated individuals, groups undertakings and entities, ‘Guidelines of the Committee for the Conduct of its work’, 23 December 2016 <https://www.un.org/sc/suborg/sites/www.un.org.sc.suborg/files/guidelines_of_the_committee_for_the _conduct_of_its_work.pdf> accessed 25 October 2017

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freeze and travel ban), so as to allow the petitioner to travel to a different State in order to be interviewed by the Ombudsperson.64

2.5 Arms Embargo

According to Resolution 2368 (2017), States have an obligation to “prevent the direct or indirect supply, sale, or transfer to these individuals, groups, undertakings and entities from their territories or by their nationals outside their territories, or using their flag vessels or aircraft, of arms and related materiel of all types including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, and technical advice, assistance or training related to military activities.”65

When dealing with arms embargoes, the Security Council did not limit its applicability to the geographical designation of the territory of a Member State, however it extended it a State’s legal authority over their nationals living abroad, and aircrafts and vessels carrying the State’s flag in line with international law.66_Presently,

there are no exemptions to the arms embargo vis-à-vis its application to those listed in the ISIL (Da’esh) and Al-Qaida Sanctions List. 67

2.6 Listing and De-Listing

An individual, group or undertaking is deemed to be associated with ISIL (Da’esh) or Al-Qaida if they engage in certain activities and these acts include the: ‘financing, planning, facilitating, preparing or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of’68_{ISIL or}

Al-Qaida, the supply of arms and materiel,69_{and the recruitment for said terrorist}

groups.70_{The Security Council noted that the support and financing of ISIL and Al}

Qaida also includes those proceeds deriving from crime (including the trafficking of narcotics).71_{Other persons that may be eligible for listing are ‘any individual, group,}

undertaking or entity either owned or controlled, directly or indirectly, by, or

64_{Resolution 2161 (2004) para 61} 65_{Resolution 2368 (2017), para 1(c)}

66_{Al-Qaida Sanctions Committee, Arms Embargo: Explanation of Terms, 24 February 2015} <https://www.un.org/sc/suborg/sites/www.un.org.sc.suborg/files/eot_arms_embargo_english.pdf> accessed 24 October 2017 para 8

67_{ibid. para 9}

68_{Resolution 2368 (2017) para 2(a)} 69_{ibid. para 2(b)}

70_{ibid. para 2(c)} 71_{ibid. para 3}

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otherwise supporting, any individual, group, undertaking or entity associated with ISIL or Al-Qaida, including on the ISIL (Da’esh) & Al-Qaida Sanctions List’.72

Member States shall propose names to the Committee, including information on the reasons for inclusion, alongside with other adequate information that would lead to the identification of the proposed name.73_{Once the person has been listed, the}

responsible Member State shall notify or inform the person or entity listed, including the reasons for said listing, the consequences of listing, and also the procedure set of by the Committee for de-listing requests.74

2.6.1 Office of the Ombudsperson

The Office of the Ombudsperson was established pursuant to Resolution 1904 (2009) as a response to the huge criticism in different fora of the lack of due process standards in the de-listing procedure.75_{Its mandate is to receive requests from}

individuals or entities for the de-listing from the ISIL (Da’esh) and Al-Qaida Sanctions List, which was extended most recently in Resolution 2368 (2017).76

Formerly, requests for de-listing used to happen via the Focal Point,77_{however as the}

Ombudsperson herself held in 2014, due to its very nature it did not possess the necessary characteristics to be considered as an autonomous body of review for the purposes of effective remedy.78

After the passing of Resolution 1989 (2011), 79_{the Ombudsperson could}

present its observations to the Committee, and additionally s/he could make a recommendation as to whether a person should be delisted or retained on the list.80

The body of the Ombudsperson is said to be an impartial and independent body, and

72_{ibid. para 4} 73_{ibid. para 51} 74_{ibid. para 59}

75_{Leah Campbell, ‘Target Practice: Do United Nations Sanctions Protect Civilians against Al-Qaida?’} in Philipp Ambach et al (eds), The Protection of Non-Combatants During Armed Conflict and

Safeguarding the Rights of Victims in Post-Conflict Society (Martinus Nijhoff Publishers 2015) 108

The criticism that led to the establishment of this Office shall be discussed in great detail in the following Chapter of this study.

76_{Resolution 2368 (2017)}

77_{Established in Resolution 1730(2006): UN Security Council, Security Council Resolution 1730}

(2006) General Issues Relating to Sanctions, 19 December 2006, S/RES/1730 (2006)

78_{Briefing of the Ombudsperson at the Security Council’s Open Debate on “Working Methods of the} Security Council” (S/2014/725) on the topic: “Enhancing Due Process in Sanctions Regimes” <https://www.un.org/sc/suborg/sites/www.un.org.sc.suborg/files/scbriefing23oct2014.pdf> 2

79_{Resolution 1989 (2011)}

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therefore does not enquire into or receive any form of direction from any Government.81_{However, to what extent this is true shall be discussed in Chapter 4.}

The enlisted person can engage with the Ombudsperson with any medium available to him (usually via email).82_{The procedure is three-fold: (1) the gathering of}

information, (2) the dialogue phase, and (3) the decision phase. During the first phase, the Ombudsperson requests the Committee and the involved States for information.83

Then comes the dialogue phase, whereby the Ombudsperson meets the petitioner, and will transmit the information (as far as it is possible) to the person. Thereafter, the Ombudsperson will compile the information into a Comprehensive Report to be submitted to the Committee with an analysis and observation.84_{During the decision}

phase, the Ombudsperson will appear in front of the Committee and a decision is taken accordingly. If it is the case that the Ombudsperson recommends de-listing, and no agreement is reached in the Committee, the person will be delisted after 60 days, unless the Committee refers the matter to the Security Council for a vote.85

Resolution 2368 (2017) encourages that those individuals or entities that are listed, and are seeking removal from the ISIL (Da’esh) & Al-Qaida Sanctions List, to first do so by submitting their petitions to the Office of the Ombudsperson, even in those cases where a process is already underway through regional or national courts.86

Hence it is up to the individual or entity to petition in front of the Office of the Ombudsperson to request de-listing. Member States are still able to submit their own request for de-listing of an individual or entity, however this may only be done via the Committee and not the Office of the Ombudsperson.

2.7 Conclusion

After having analysed the origins of the 1267 regime and the developments thereto, there shall now be a normative assessment of the system of implementation of the sanctions regime. This shall be done briefly in the following chapter, with a concise summary of the reception of international law within the EU.

81_{Resolution 2368 (2017) para 60} 82_{supra cit (n 17) 226}

83_{4 months, with possible extension of a further 2 months}

84_{This phase lasts two months, with a possible two-month extension} 85_{The Security Council has a further 60 days to deliberate}

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Chapter 3 - Implementation of the Sanctions Regime

Security Council Resolutions are legally binding upon the Member States, and Article 25 of the UN Charter clearly states that ‘the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.’ This reflects in the fact that it is up to the Member States to implement and incorporate the Security Council Resolutions within the domestic framework, with no particular structure to be followed.87

However, the system established by the Security Council, caters for an Analytical Support and Sanctions Monitoring Team (the ‘Monitoring Team’) that supports the Committee in relation to ISIL (Da’esh), Al-Qaida, the Taliban and any associated individuals and entities.88_{Two of its purposes are to send independent}

reports to the Committee,89_{and to gather enough information on the implementation}

of the regime by States and any arrays of non-compliance.90_{What is interesting to}

analyse is the EU and how it has implemented the sanctions regime within its own system.

3.2 The European Union

The EU is not a member of the UN, and at the outset it may not be clear whether or not it was bound by the Security Council’s resolutions. Even though there is no assumption of power by the EU over its Member States vis-à-vis the UN system in general, the EU Courts will nevertheless consider a given case having due regard to the UN and its resolutions.91_{In terms of the implementation of the regime within the}

EU, EU Member States do not have the leisure to implement the Security Council Resolutions individually; this is because they are promulgated within the EU’s Common Foreign and Security Policy (the ‘CFSP’).92_{This is done firstly via the}

87_{Mehrdad Payandeh and Heiko Sauer, ‘European Union: UN sanctions and EU fundamental rights’} (2009) 7/2 International Journal of Constitutional Law <https://doi.org/10.1093/icon/mop008> accessed 1 November 2017 307

88_{Established pursuant to Resolution 1525 (2004) and 2253 (2015), whose mandate was extended until} December 2021 by Resolution 2368 (2017)

89_{Resolution 2368 (2017) para 95} 90_{ibid para 97}

91_{Juliane Kokott and Christoph Sobotta, ‘The Kadi Case – Constitutional Core Values and} International Law – Finding the Balanca?’ (2012) 23/4 The European Journal of International Law <https://academic.oup.com/ejil/article/23/4/1015/546143> accessed 3 November 2017 1017

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European Council, which passes a common position paper, which is then translated into a Regulation.93

To this end there have been a number of important cases in front of the CJEU and also the European Court of Human Rights (ECtHR) in relation to the sanctions that are imposed by the UN and implemented regionally within the EU. The major issues that were discussed by the CJEU were firstly whether the Court had competence to decide on the cases before it given that it might inadvertently be adjudicating on the legality of the Security Council’s Resolutions, and secondly whether the implementation of the sanctions regimes infringed the human rights of those placed on the sanctions lists.94_{The first issue is the one that is being discussed}

in this part of the study.

3.2.1 The reception of International law within the European legal order

When Resolution 1267 (1999) was passed in relation to the Taliban and Usama bin Laden, it stated that all States must impose asset freezing on those funds that were directly or indirectly, owned or controlled by the Taliban. The EU thought it necessary, even though not required, to adopt Common Position 1999/727/CFSP that concerned the measures to be adopted against the Taliban. The Council then went on to adopt Regulation (EC) No 337/2000, which concerned the freezing of funds and travel ban in relation to the Taliban of Afghanistan. 95_{Asset freezing was then}

extended to Usama bin Laden and anyone associated with him in Common Position 2001/154/CFSP. To this end Regulation (EC) No 467/2001 was adopted, which repealed the previous Regulation. Annex I to the Regulation contained a list of persons whose assets should be frozen, and included in the list was Kadi and Barakaat International Foundation. 96 _{Ultimately the Council passed Common Position}

2002/402/CFSP that concerned Usama bin Laden, Al-Qaeda members and the Taliban, repealing all previous Common Position papers to continue the freezing of assets of those listed by the Sanctions Committee as per Resolution 1267 (1999) and 1333

93_{Under EU law, a regulation is directly applicable to its Member States without any further} implementation or transposition required from the individual Member State.

94_{The infringement of human rights shall be discussed in the following chapter.}

95_{Council Regulation (EC) No 337/2000 of 14 February 2000 concerning a flight ban and a freeze of} funds and other financial resources in respect of the Taliban of Afghanistan (OJ L 43, 16.2.2000, p.1) 96_{Council Regulation (EC) No 467/2001 of 6 March 2001 prohibiting the export of certain goods and} services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, and repealing Regulation (EC) No 337/2000

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(2000). The exceptions were also included in March 2003, and any person or entity wishing to avail themselves from the exception should do so by requesting this via the Member State. 97

Yassin Abdullah Kadi filed a case to annul the Regulation on the basis that his fundamental rights where breached, that is, his right to be heard, right to an effective remedy, and thirdly the right to respect for property and the proportionality principle.98

The Court of First Instance99_{(hereinafter referred to as the ‘Kadi GC I’)}

refused to review the legality of the EU Regulation, because it said that in so doing it would be reviewing the measures adopted by the Security Council; in fact the Court held that such review could not be justified on the basis of Community law or international law.100_{Thus even in relation to possible violations of human rights, the}

court found that even though the EU is not directly bound by the UN Charter, it is nevertheless obliged not to go against the obligations that Member States have imposed on them under the UN Charter.101_{However, the Court made it clear that it is}

still empowered to indirectly review the lawfulness of the Security Council resolutions on the basis of jus cogens, given that these rules are regarded as the highest rules of international law that bind all of its subjects, including United Nation’s bodies.102

The Grand Chamber in 2008 however viewed the case in a different manner (hereinafter referred to as ‘Kadi CJEU I’). 103_{Firstly it upheld that fundamental rights}

are an integral part of the principles that the court ensures adherence to, and to this end it held that ‘respect for human rights is a condition of the lawfulness of Community acts…and the measures incompatible with respect for human rights are not acceptable in the Community.’104_{Therefore, given the primacy of said rights, it}

97_{Common Position 2003/140/CFSP, adopted by Regulation (EC) No 561/2003}

98_{CFI of September 21, 2005 in Ahmed Ali Yusuf and Al Barakaat International Foundation v Council}

of the EU and Commission of the EC (Al Barakaat CFI Judgment), Case T-306/01, and Yassin

Abdullah Kadi v Council of the EU and the Commission of the EC (Kadi CFI Judgment), Case T-315/01 (OJ 2005 C 281) [Kadi GC I]. The specific fundamental rights shall be discussed in Chapter 4. 99_ibid.

100_{ibid, para 221.} 101_{supra cit (n 87) 309} 102_{Kadi GC I, para 226}

103_{Kadi CJEU I supra cit (n 23)} 104_{ibid. para 283-284}

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follows that the international agreement cannot impact the principles of the EU Treaty, including the utmost respect to the fundamental rights.105_{The Court reiterated what it}

held in Poulsen that the Community must have respect to international law, and that the measures adopted pursuant to an international agreement must be interpreted and understood in light of international law.106

It is for the above reasons that the court held that by looking into the compatibility of the Regulation with fundamental rights, it does not mean that it amounts to the review of the Security Council measures.107_{It continued to hold that}

the ‘Court’s jurisdiction arises in the context of the internal and autonomous legal order to the Community, within whose ambit the contested regulation falls and in which the Court has jurisdiction to review the validity of Community measures in the light of fundamental rights’.108

Following Kadi CJEU I, the ECtHR followed in the same footsteps109_{in its}

decision, Nada v Switzerland.110_{The ECtHR, quoting Kadi CJEU I, held that:}

“It is not a consequence of the principles governing the international legal order under the United Nations that any judicial review of the internal lawfulness of the contested regulation in the light of fundamental freedoms is excluded by virtue of the fact that that measure is intended to give effect to a resolution of the Security Council adopted under Chapter VII of the Charter of the United Nations.”111

It is for the above reason that the ECtHR held that the Kadi CJEU I decision applied mutatis mutandis to the case at hand.

3.3 Conclusion

After examining the relevant resolutions, the applicable processes for listing and de-listing purposes, and the implementation thereto, the focus will now turn on

105_{ibid. para 285}

106_{ibid. para 291. See also Poulsen and Diva Navigation, Case C-286/90 [1992] ECR I-6019 para 9} 107_{ibid. para 314}

108_{ibid. para 317}

109_{The technique used by the ECtHR is however different from that of the CJEU; whilst the latter’s} ruling relied on the internal legal order of the EU, the former used the practise of harmonious interpretation.

110_{Nada v Switzerland, Merits and just satisfaction, App no 10593/08 (2012) ECHR 1691, IHRL 2059} (ECHR 2012), 12 September 2012, European Court of Human Rights, Grand Chamber

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the specific human rights that are impacted, particularly the principles pertaining to due process.

Even though targeted sanctions are not enforced indiscriminately on a State, this does not mean that there are not any inadvertent consequences.112_{States and}

particularly the EU have time and time again challenged the sanctions regime imposed by the Security Council mainly on the grounds that there has been insufficient due process, and not enough protection for the individual/entity listed.113

112_{supra cit (n 24) 54}

113_{John RWD Jones and Misa Zgonec-Rozej, ‘Freezing assets of ‘terrorists’ – how fair is the UN} sanctions committee?’ (2009) The Law Society Gazette <https://www.lawgazette.co.uk/law/freezing-assets-of-terrorists--how-fair-is-the-un-sanctions-committee/52265.article> accessed 10 November 2017

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Chapter 4 – The Due Process Dilemma

Counter-terrorism practices that violate human rights are not acceptable in a democratic society, whose basis is the rule of law.114_{In fact it is believed that if a}

society is not in conformity with human rights standards when combating terrorism, it will be unsuccessful.115_{The due process rights}116_{are guaranteed under a diverse range}

of both universal and regional human rights instruments, which are also considered as forming part of customary international law.117

Within the international law sphere, the principle of due process can be regarded as being relatively new, as most of the principles are reliant on domestic and regional legislation.118_{In terms of procedural fairness, it is held that on the}

international plane, fairness will be judged in accordance with the satisfaction it receives from its participants, and the extent by which said rules of fairness are applied and what is perceived as the correct process.119

The UN, even though not a party per se to an instrument devising the protection of human rights, is still bound by a number of other instruments, such as the UN Charter and customary international law. Therefore, as Fassbender states explicitly, there is still a legitimate expectation that in cases where rights of individuals are at stake, the UN should observe certain standard principles of due process.120

4.2 9/11: Its aftermath and repercussions thereto

The 9/11 attacks spurred a large number of additions to the 1267 list, which resulted in States having to impose the measures upon its individual citizens, residents, and also those having assets within its borders. At the same time, States had little to

114_{OSCE Office for Democratic Institutions and Human Rights (ODIHR), ‘Countering Terrorism,} Protecting Human Rights. A Manual.’ (2007) <http://www.osce.org/odihr/29103?download=true> accessed 1 December 2017 16

115_{ibid. 20}

116_{Also referred to as fair trial rights}

117_{Bardo Fassbender, ‘Targeted Sanctions and Due Process: Study Commissioned by UN Office of} Legal Affairs – Office of the Legal Counsel’ (Humboldt University Berlin, 20 March 2006) <http://www.un.org/law/counsel/Fassbender_study.pdf> no 1

Given the fact that these rights are considered to be general principles of law, it falls within the meaning of Article 38(1)(c) of the ICJ Statute.

118_{supra cit (n 25) 572}

119 http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780198267850.001.0001/acprof-9780198267850-chapter-1 7

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no information as to the actual suspected link between the individual and Al-Qaida.121

The challenges that were met at this stage were pronounced, especially in relation to the geographical reach. Another problem that was encountered was in relation to the actual names of the individuals listed, given that some of them are very common and thus gave rise to potential misidentification of individuals.122_{This has led to criticism}

of the regime, and consequently, the due process lacunae became apparent.

Former UN Secretary General Kofi Annan held in a keynote address during the International Summit on Democracy, Terrorism, and Security, that human rights should not be compromised in the fight against terrorism. He continued to hold that if it were so, this would only cede to the objective of the terrorist, and it is for this reason that human rights in this realm are a constituent element. 123_{In response to the}

World Summit Outcome,124_{a study was commissioned and produced by Dr}

Fassbender in 2006 on the issue of due process, where it was held that the Security Council has to respect the fundamental rights and freedoms when carrying out all its functions, particularly in relation to the practice adopted by the sanctions regime.125

The principles of due process include a number of rights and remedies available to an individual. These include the right to an effective remedy, right to a fair hearing, the right to be heard in front of an impartial and independent tribunal, right of proper representation and the notice of charges.126_{These principles were also}

highlighted by the then Secretary General Kofi Annan in June 2006, where he took it upon himself to stress upon the importance of having a just and transparent listing and de-listing procedure. To this end he recognised four elements within the system that required addressing, namely: (i) the right of a person to be informed appropriately when measures against him have been imposed, (ii) the right to be heard, (iii) the right

121_{supra cit (n 17) 215} 122_{ibid. 216}

123_{Former UN Secretary General Kofi Annan, “A Global Strategy for Fighting Terrorism”, Keynote} address to the Closing Plenary of the International Summit on Democracy, Terrorism and Security, 8-11 March 2005, Madrid <http://summit.clubmadrid.org/keynotes>

124_{UN General Assembly, 2005 World Summit Outcome: resolution I adopted by the General}

Assembly, 24 October 2005, A/RES/60/1 <http://www.un.org/womenwatch/ods/A-RES-60-1-E.pdf>

accessed 5 December 2017 125_{supra cit (n 177) no 8} 126_{supra cit (n 25) 572}

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to an effective remedy mechanism, and lastly, (iv) periodical review of the sanctions.127

As stated in Chapter 2, the targeted sanctions are mandated by the Sanctions Committee, which is made up of the Security Council members. This in turn seems to be creating a conflict between the UN listing, which is very political in nature, and the inherent nature of due process, which is essentially derived from the domestic legal processes.128_{Confidentiality and secrecy are two well-known characteristics of the}

Committee’s operations. These characteristics are usually justified due to the very nature of the sanctions, that is, their preventative nature, however the predominant justification is national security.129_{Therefore the difficulty lies with trying to find a}

balance between having a system that should be based on a transparent process, and at the same time keeping in mind the possible security threat and repercussions if intelligence resources used by a State were to be exposed.130

4.3 The UN’s reaction to the due process lacunae pre-Kadi CJEU I (2008)

The starting point for improvements in the UN system was resolution 1730 (2006),131_{where a Focal Point Mechanism was established. This system provided for}

a forum where listed individuals could apply for de-listing. Measures were adopted vis-à-vis the individual being notified of the listing,132_{in relation to the motives for}

listing,133_{and also for periodical review of the list by the Committee.}134

The introduction of the Focal Point Mechanism was a pivotal change within the system, given that previously individuals did not have any means available to them to directly access the Committee.135_{However, this did not address the issue of}

due process, given that it was not an independent and impartial review mechanism,

127 _UNSC ₅₄₇₄th _Meeting ₍₂₂ _June ₂₀₀₆₎ _UN _Doc _S/PV.5474 _<

https://www.un.org/ruleoflaw/files/Security%20Council%205474th%20Meeting%20Meeting%20Reco rd.pdf> 4-5. See also supra cit (n 117) no 12

128_{supra cit (n 25) 556} 129_ibid

130_{Jared Genser and Bruno Stagno Ugarte (eds), The United Nations Security Council in the Age of}

Human Rights (Cambridge University Press 2014) 235

131_{UN Security Council, Security Council Resolution 1730 (2006) General Issues Relating to}

Sanctions, 19 December 2006, S/RES/1730 (2006)

132_{UN Security Council, Resolution 1735 (2006) Threats to International Peace and Security Caused}

by Terrorist Acts, 22 December 2006, S/RES/1735 (2006)

133_{UN Security Council, Security Council resolution 1822 (2008) [on continuation of measures}

imposed against the Taliban and Al-Qaida], 30 June 2008, S/RES/1822 (2008) no 12

134_{ibid. no 25 and 26}

135_{Before this establishment, an individual had to depend on his/her State to voice up his concern to the} Committee.

Human Rights Challenges in Implementing Smart Sanctions against ISIL (Da'esh) and Al Qaida