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.
Abdelrazik, who was added to the UN 1267 terrorist list while imprisoned in Sudan, has never been charged with any offence, and has been cleared of all charges by the Sudanese Justice Department, the Canadian police, and the Canadian intelligence service (CSIS). His case has long been a source of controversy for the Canadian Government. Following Abdelrazik’s release from prison in 2007, the Canadian Goverment refused to allow him reentry into Canada, arguing that to do so would breach the travel ban imposed by the 1267 sanctions. The decision, which provoked public outrage in Canada, was also defeated in Court. Ruling that Canada’s actions violated Abdelrazik’s constitutional rights, Justice Zinn famously compared Abdelrazik’s position to that of Kafka’s Josef K “who awakes one morning and, for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecified crime”. In reaching his decision, he expressed strong criticisms of the blacklisting regime, saying “There is nothing in the listing or delisting procedure that recognizes the principles of natural justice or that provides for basic procedural fairness”.
While it does not directly comment on the legality of the 1267 listing, Justice Zinn’s judgement highlights the considerable problems facing governments and councils that seek to give effect to the list in domestic legislation. Like the Kadi ruling in Europe, the Abdelrazik judgement lends support to those who argue that states should weigh their adherence to international treaties against their loyality to domestic constitutions. As seen this week, the Canadian government is quick to stress its unavoidable obligations to the UN Security Council. A recent report by the British Columbian Civil Liberties Association, however, disagrees. It argues that Canada is not bound to observe a regime that would not pass ‘constitutional muster’ and is in violation of international law: ‘It cannot be reasonably argued that Canada has a compelling interest in adhering to an international obligation that would not only force it to commit a significant breach of the charter, but would support a sanctions regime that has been internationally criticised by governments, courts and the UN Nations itself’. Instead, it suggests, Canada should follow the example of Switzerland, which has enacted legislation that enables it to reject sanctions under certain conditions, and implement directives only where this is consistent with other national and international legal obligations.
Whether Canada will reconsider its position remains to be seen. A delegation of advocates will go to New York this month in support of Abdelrazik’s delisting application. It is, as we mention above, a topic that will be discussed in more detail by Professor Attaran during Panel 2 of the conference. In the meantime, we would be interested to hear your thoughts, comments or questions on the issue. Should combating terrorism involve the denial of welfare benefits to relatives of blacklisted individuals and criminalising the sharing of food between family members? How can such a disproportionate approach be fair and lawful?