Abousfian Abdelrazik (img: Project Fly Home)

Canadian citizen Abousfian Abdelrazik has been told that his children will not receive any state benefits as long as he remains of the UN 1267 terrorist blacklist. In a letter to the Canadian Press, the Canadian Government claimed that allowing child benefits would breach its obligations to the UN Security Council, which prohibits the supply of funds to those thought to be “associated with” Al-Qaida. The decision has attracted criticism of Canada’s willingness to comply with what many see as an unjust and illegitimate regime. The Canadian People’s Commission Network, which supports Abdelrazik’s campaign for delisting, expresses the problem succinctly: “”Here we have a regime that violates the most fundamental human rights: indefinitely stripping people of their liberty without trial, charge, evidence, based on guilt by association – and the government in Quebec is going along with it!”

This decision – to deny the provision of welfare benefits to the family members of those on the blacklist on the basis that to do otherwise would be “supporting” terrorism – is directly at odds with the approach taken by the European Courts on this issue. In the 2010 case of M and Others v HM Treasury, for example, the European Court of Justice expressly held that benefits paid to the spouses of blacklisted individuals were not to be prohibited. The purpose of the blacklist, according to the Court, was to prevent terror suspects from actually accessing financial resources that could be used for terrorism. As a result, asset-freezing only applied to “those assets that can be turned into funds, goods or services capable of being used to support terrorist activities” and so welfare benefits used to meet the essential needs of a household were allowed. This case – which adopts a sensible, purposive reading of the blacklisting provisions – in discussed in more detail in our Blacklisted report, available here . Whether the Canada adopts a more socially just or draconian approach to this issue will no doubt be determined through ongoing legal challenges and will be discussed in more detail by Professor Amir Attaran who will be speaking in Panel 2 of the conference.

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Blacklisting and targeted sanctions are one of the four core themes that will be critically explored in this conference (see Panel 2).

After years of sustained criticism by Courts and human rights advocates for breaching fundamental rights, the terrorist blacklisting regimes enacted by the UN and EU are currently facing a crisis of legitimacy.  Originally, there had been no mechanisms available to remove someone from the blacklist once they had been designated nor any provisions for giving blacklisted individuals access to information that supposedly justified their listing.  The situation has improved somewhat in recent years through the introduction of piecemeal reforms by the UN, yet the core problems (lack of an effective remedy, lack of access to information and inability to challenge designation) still remain.

In 2009 the UN Security Council tried to address these concerns by introducing a new Resolution (1904) that empowered an Ombudsperson to assist the Sanctions Committee to handle applications by blacklisted individuals for removal from the list. Whilst it was hailed at the time by many commentators as a triumph of progressive reform, it was clear from the outset that the powers of the Ombudsperson were extremely limited.  They had, for example, no real power to recommend that someone should be removed from the list and states were under no obligation to share their secret intelligence material (which is the basis for most of the listings) with them. Under the Resolution, the Ombudsperson was to serve an initial 18-month term. With that term set to expire next month (June 2011), we can expect a new decision by the UN imminently that will probably extend the mandate of the Ombudsperson and/or amend their powers.

On 6 May 2011, in advance of that decision a ‘Group of Like-Minded States’ – including Austria, Belgium, Costa Rica, Denmark, Finland, Germany, Liechtenstein, the Netherlands, Norway, Sweden and Switzerland – held a public event in New York to launch their proposals for reforming the UN blacklisting system.  For a full copy of their reform document, click here. Read the rest of this entry »