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The Designation of Individuals and Groups as Terrorist Entities

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Human Rights in the Prevention and Punishment of Terrorism

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Abstract

In the absence of an internationally agreed definition of terrorism (discussed in Chap. 2), the designation and listing of particular individuals and entities associated with Al-Qa’ida and the Taliban has been a key to the targeting of sanctions against such persons, including the freezing of their assets and the implementation of travel bans against them.1 An overview of this regime is presented in this chapter, together with a summary of implementing measures by Australia, Canada and the United Kingdom. The measures adopted by New Zealand, under its Terrorism Suppression Act 2002, is the focus of a case study on the subject. Consideration is given to the human rights implications of those measures, having particular regard to the right to peaceful assembly, the freedom of association, and the right to a fair hearing and associated principles of natural justice.

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Notes

  1. 1.

    See First report of the Analytical Support and Sanctions Monitoring Team appointed pursuant to resolution 1526 (2004) concerning Al-Qa’ida and the Taliban and associated individuals and entities, UN Doc S/2004/679, para 5.

  2. 2.

    SC Res 1624 (2005), UN SCOR, 5261st Mtg, UN Doc A/Res/1624 (2005), para 4; United Nations Global Counter-Terrorism Strategy, GA Res 60/288, UN GAOR, 60th Sess, 99th Plen Mtg, UN Doc A/Res/60/288 (8 September 2006), Pillar I, preambular para, and Pillar IV.

  3. 3.

    Sayadi and Vinck v Belgium, Human Rights Committee Communication 1472/2006, UN Doc CCPR/C/94/D/1472/2006 (2008), paras 10.3 and 10.6.

  4. 4.

    SC Res 1267, UN SCOR, 4051st Mtg, UN Doc S/Res/1267 (1999).

  5. 5.

    Security Council Committee Established Pursuant to Resolution 1267 (1999), Guidance for Reports Required of all States pursuant to paragraphs 6 and 12 of Resolution 1455 (2003), online: http://www.un.org/Docs/sc/committees/1267/guidanc_en.pdf, un-numbered para 1.

  6. 6.

    See: SC Res 1267 (n 4); SC Res 1333, UN SCOR, 4251st Mtg, UN Doc S/Res/1333 (2000); SC Res 1363, UN SCOR, 4352nd Mtg, UN Doc S/Res/1363 (2001); SC Res 1388, UN SCOR, 4449th Mtg, UN Doc S/Res/1388 (2002); SC Res 1390, UN SCOR, 4452nd Mtg, UN Doc S/Res/1390 (2002); SC Res 1452, UN SCOR, 4678th Mtg, UN Doc S/Res/1452 (2002); SC Res 1455, UN SCOR, 4686th Mtg, UN Doc S/Res/1455 (2003); SC Res 1456, UN SCOR, 4688th Mtg, UN Doc S/Res/1456 (2003); SC Res 1526, UN SCOR, 4908th Mtg, UN Doc S/Res/1526 (2004); and SC Res 1617, UN SCOR, 5244th Mtg, UN Doc S/Res/1617 (2005).

  7. 7.

    SC Res 1267 (n 4).

  8. 8.

    SC Res 1333 (n 6).

  9. 9.

    SC Res 1390 (n 6).

  10. 10.

    SC Res 1617 (n 6). See also SC Res 1735, UN SCOR, 5609th Mtg, UN Doc S/Res/1735 (2006), paras 1–4.

  11. 11.

    SC Res 1373, UN SCOR, 4385th Mtg, UN Doc S/Res/1373 (2001); and International Convention for the Suppression of the Financing of Terrorism, opened for signature 10 January 2000, 2179 UNTS 232 (entered into force 10 April 1992).

  12. 12.

    See The Consolidated List established and maintained by the 1267 Committee with respect to Al-Qaida, Usama bin Laden, and the Taliban and other individuals, groups, undertakings and entities associated with them, online: http://www.un.org/sc/committees/1267/pdf/consolidatedlist.pdf (last updated 1 September 2009).

  13. 13.

    See Council of Europe Common Position concerning additional restrictive measures against the Taliban and amending Common Position 96/746/CFSP, COE Doc 2001/154/CFSP (2001) – updated in 2002 under COE Doc 2002/402/CFSP. See also Tappeiner (2005, pp. 102–110).

  14. 14.

    Council of Europe Common Position on the application of specific measures to combat terrorism, COE Doc 2001/931/CFSP (2001); and Council of Europe Regulations on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, COE Doc EC 2580/2001 (2001).

  15. 15.

    See Security Council Committee Established Pursuant to Resolution 1267 (1999), Guidelines of the Committee for the Conduct of its Work, adopted on 7 November 2002 and amended on 10 April 2003, online: http://www.un.org/Docs/sc/committees/1267Template.htm (last accessed 9 August 2005).

  16. 16.

    Some broad roles of the Committee were expressed within para 5 of SC Res 1390 (n 6): and, more generally, SC Res 1455 (n 6) and SC Res 1526 (n 6).

  17. 17.

    The Monitoring Team was established under SC Res 1526 (n 6) para 6. To that end, the Monitoring Team has produced nine reports between 2004 and 2009: see http://www.un.org/sc/committees/1267/monitoringteam.shtml.

  18. 18.

    See SC Res 1735 (n 10), Annex II(g). See also the resulting paper, Experiences of Member States in the Implementation of the Al-Qaida/Taliban Sanctions Measures, 28 June 2007, online: http://www.un.org/sc/committees/1267/ExperiencesofMemberStates.pdf.

  19. 19.

    SC Res 1822 (2008), UN SCOR, 5928th Mtg, UN Doc S/Res/1822 (2008). See: Security Council Committee established pursuant to Resolution 1267 (1999) Concerning Al-Qaida and the Taliban and Associated Individuals and Entities, Guidelines Of The Committee For The Conduct Of Its Work, 9 December 2008, online: http://www.un.org/sc/committees/1267/pdf/1267_guidelines.pdf, paras 6 and 7.

  20. 20.

    As required by SC Res 1822 (ibid) para 13. The narrative summaries can be found on the Committee’s website at http://www.un.org/sc/committees/1267/narrative.shtml.

  21. 21.

    Ninth report of the Analytical Support and Sanctions Monitoring Team, submitted pursuant to resolution 1822 (2008) concerning Al-Qaida and the Taliban and associated individuals and entities, UN Doc S/2009/245 (2009), para 1.

  22. 22.

    SC Res 1455 (n 6) para 6.

  23. 23.

    In the case of each case study country, see: Report of Australia pursuant to Security Council resolution 1455 (2003) to the Security Council Committee established under Security Council resolution 1267 (1999), UN Doc S/AC.37/2003/(1455)/13 (2003); Report of Canada to the Security Council Committee established under Security Council resolution 1267 (1999), UN Doc S/AC.37/2003/(1455)/20 (2003); Response of New Zealand to the Security Council Committee under Security Council resolution 1455 (2003), UN Doc S/AC.37/2003/(1455)21 (2003); and Report of the United Kingdom pursuant to paragraphs 6 and 12 of resolution 1455 (2003), UN Doc S/AC.37/2003/(1455)/19 (2003).

  24. 24.

    The Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2008 repealed and replaced the Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (see regulation 3 of the 2008 Regulations).

  25. 25.

    Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Australia: Study on Human Rights Compliance While Countering Terrorism, UN Doc A/HRC/4/26/Add.3, para 23. See also Ricketts (2002), Joseph (2004, pp. 436–440), Tham (2004), and Hogg (2008).

  26. 26.

    See Dosman (2004). For a review of Canada’s designation process, as compared with the United Kingdom and the United States, see Jenkins (2003).

  27. 27.

    Correct as at 1 April 2008: see Department of Justice. Human Rights Safeguards in the Anti-terrorism Act, online: http://www.justice.gc.ca/eng/antiter/sheet-fiche/SAFE-SUR.HTML.

  28. 28.

    See also the report of the Independent Reviewer Lord Carlile of Berriew QC, Report on the Operation in 2007 of the Terrorism Act 2000 and of Part I of the Terrorism Act 2006 (Presented to Parliament pursuant to section 26 of the Terrorism Act 2006, June 2008), paras 37–68.

  29. 29.

    New Zealand Parliamentary Library, Bills Digest. Terrorism Suppression Amendment Bill 2007 (Bills Digest 1498, 21 March 2007), p. 5.

  30. 30.

    Terrorism Suppression Act 2002, section 55. Forfeiture can only occur on application to the High Court by the Attorney-General and if the designation is one that has been extended beyond the normal 3-year period (under section 35 of the Act) and the Court is satisfied that it would be appropriate to forfeit the property rather than simply continue with the prohibition against dealing with it (section 9). The property of a designated entity is thus “frozen”, in that others are prohibited from dealing with it, but cannot be forfeited unless the designation is extended beyond three years and the prohibition against dealing with the property is not sufficient.

  31. 31.

    Compare Terrorism Suppression Act 2002, section 22(1) and (3) (final designations) with section 20(1) and (3) (interim designations).

  32. 32.

    Compare this with interim designations, which require the Prime Minister to consult with the Minister of Foreign Affairs and Trade: section 20(4) of the Act.

  33. 33.

    Compare with the need to advise and brief in the case of interim designations: section 20(5).

  34. 34.

    See section 19 of the Terrorism Suppression Amendment Act 2007.

  35. 35.

    See sections 21(b) and (c), 22(d) and (e), and 28(1). The example of notification by internet was given by the Foreign Affairs, Defence and Trade Committee in its interim report on the Terrorism Suppression Bill, Interim Report on the Terrorism (Bombings and Financing) Bill, 8 November 2001, un-numbered page 9. The content of such notices is prescribed by section 27 of the Act.

  36. 36.

    See sections 9(1), 10(1), 21(d)(ii), 23(f)(ii) and 28(2). The content of such notices is prescribed by section 27 of the Act.

  37. 37.

    The Terrorism (Bombings and Financing) Bill 2001 had provided that designations remain active for five years: see clause 17V of the Bill, as contained within the select committee’s interim report – Foreign Affairs, Defence and Trade Select Committee, Interim Report on the Terrorism (Bombings and Financing) Bill, 8 November 2001. In its final report on the Bill, the Committee recommended that this be reduced to three years, stating that “it is important that the designation of a person or group as a terrorist or associated entity expire, so designations do not continue after the reasons for making them cease to exist”: see Foreign Affairs, Defence and Trade Committee, Final Report on the Terrorism <(Bombings and Financing)> Suppression Bill, 22 March 2002.

  38. 38.

    That is, convicted in criminal proceedings that are not subject to any appeal and that are finally determined: see Terrorism Suppression Act 2002, section 23(b).

  39. 39.

    New Zealand Ministry of Justice, Terrorism Suppression Amendment Bill (No 2) 2004, Government Bill, 242-1, Explanatory Note, presented to the House 14 December 2004, 2. See also Press Release, ‘Amendments to Tighten Terrorism Suppression Act’, online: http://www.beehive.govt.nz/ViewDocument.cfm?DocumentID=21825 at 8 January 2005.

  40. 40.

    As defined by section 34(2) of the Act.

  41. 41.

    In this regard, see Möllendorf and Möllendorf-Niehuus v Germany, judgment of the European Court of Justice of 11 October 2007 in case C-117/06. See also: Bowring (2007, pp. 90–92); Cameron (2006, pp. 10–12); the report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Protection of human rights and fundamental freedoms while countering terrorism, UN Doc A/61/267 (2006), para 31; and the report of the United Nations High Commissioner for Human Rights on the protection of human rights and fundamental freedoms while countering terrorism, UN Doc A/HRC/12/22 (2009), para 41. On the right to privacy, see Sayadi and Vinck v Belgium (n 3), paras 10.12–10.13.

  42. 42.

    International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

  43. 43.

    See Conte and Burchill (2009, pp. 92–95).

  44. 44.

    Article 21 of the ICCPR states that “The right of peaceful assembly shall be recognized”; section 16 of the NZBORA provides that “Everyone has the right to freedom of peaceful assembly”.

  45. 45.

    Human Rights Committee, General Comment 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25), UN Doc CCPR/C/21/Rev.1/Add.7 (1996), para 26; report of the United Nations High Commissioner for Human Rights (n 41) para 36; Special Rapporteur report on the listing of individuals and entities (n 41) para 9; and Rishworth et al. (2003, p. 354).

  46. 46.

    Special Rapporteur report on the listing of individuals and entities (n 41) paras 16–18.

  47. 47.

    The Special Rapporteur has reiterated that the prinicples of necessity and proportionality are applicable to measures implementing sanctions imposed by the Security Council: see Special Rapporteur report on the listing of individuals and entities (n 41) para 33. See also Lee v Republic of Korea, Human Rights Committee Communication 1119/2002, UN Doc CCPR/C/84/D/1119/2002 (2005), para 7.3; and Belyatsky et al v Belarus, Human Rights Committee Communication 1296/2004, UN Doc CCPR/C/90/D/1296/2004 (2007), para 7.3

  48. 48.

    Special Rapporteur report on the listing of individuals and entities (n 41) para 20.

  49. 49.

    Special Rapporteur report on the listing of individuals and entities (n 41) paras 11, 27 and 29.

  50. 50.

    McEldowney v Forde [1971] AC 632.

  51. 51.

    Ibid, Lord Pearce (651–654) and Lord Diplock (658–665). See also Fellman (1961) and Cole (1999).

  52. 52.

    International Military Tribunal, Nuremberg, judgment of 30 September 1946. For a discussion of this, see Keith (2003, pp. 32–33).

  53. 53.

    See, for example, the statement of Ellen Margrethe Løj (Danish Ambassador to the United Nations, and current Chair of the Security Council Counter-Terrorism Committee), UN Press Release, ‘Security Council Reaffirms Terrorism One of Most Serious Threats to Peace’, UN SCOR, 59th Sess, 5229th Mtg, UN Doc SC/8454 (2005).

  54. 54.

    Ibid.

  55. 55.

    Ibid, operative para 18 of SC Res 1617 (n 6) is said to further reflect a desire on the part of a number of Security Council member States to secure improvements in the Sanctions Committee’s process. See also: EU Network of Independent Experts in Fundamental Rights, The Balance Between Freedom and Security in the Response by the European Union and its Member States to the Threat of Terrorism (EU Network of Independent Experts in Fundamental Rights, 2003); Ben Hayes, Terrorising the Rule of Law: The Policy and Practice of Proscription (Statewatch, 2005); and Yusuf and Al Barakaat International Foundation v Council and Commission (unreported judgment of the European Court of Justice of first instance, 21 September 2005), online: http://www.curia.eu.int/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&docj=docj&numaff=&datefs=&datefe=&nomusuel=&domaine=&mots=terror&resmax=100 (last accessed 3 November 2005).

  56. 56.

    2005 World Summit Outcome, GA Res 60/1, UN GAOR, 69th Sess, 8th Plen Mtg, UN Doc A/Res/60/1 (2005), para 109. This was recalled by the UN Secretary-General in his report, Uniting Against Terrorism: Recommendations for a Global Counter-terrorism Strategy, UN Doc A/60/825 (27 April 2006), para 117.

  57. 57.

    Rosemary Banks (New Zealand Permanent Representative to the United Nations), Statement on Counter-Terrorism to the President of the United Nations Security Council, 20 July 2005, online: http://nzmissionny.org/securitycouncil.htm (last accessed 17 August 2005). See also; Bowring (2007, pp. 102–112); and Cameron (2006, pp. 1–9).

  58. 58.

    Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while counter-terrorism terrorism, Protection of human rights and fundamental freedoms while countering terrorism, UN Doc A/63/223 (2008), para 16. See the Special Rapporteur’s earlier report on the listing of individuals and entities (n 41) paras 26–41.

  59. 59.

    Report of the Special Rapporteur on the right to a fair hearing (ibid), para 16. See also the Special Rapporteur’s earlier report on the listing of individuals and entities (n 41) para 26; and the Opinion of the European Advocate General of 16 January 2008 in Kadi v Council of the European Union and Commission of the European Communities, Case C-402/05, para 54.

  60. 60.

    Report of the United Nations High Commissioner for Human Rights (n 41) para 39. See also Fromuth (2009).

  61. 61.

    Monitoring Team Ninth Report (n 21) Annex I, para 1.

  62. 62.

    Report of the Special Rapporteur on the right to a fair hearing (n 58), para 16.

  63. 63.

    Joseph (2001, p. 864).

  64. 64.

    SC Res 1822 (n 19) para 13.

  65. 65.

    Joseph (2001, p. 871). See also the Special Rapporteur report on the listing of individuals and entities (n 41) para 38.

  66. 66.

    Potter v New Zealand Milk Board [1983] NZLR 620, 624.

  67. 67.

    Kadi and Al Barakaat International Foundation v Council and Commission, judgment of the European Court of Justice (Grand Chamber) of 3 September 2008 in joined cases C-402/05 and C-415/05.

  68. 68.

    A and others v HM Treasury [2008] EWCA Civ 1187.

  69. 69.

    Letter from the Solicitor-General to the Attorney-General, “re Terrorism Suppression Bill: Slip Amendments – PCO 3814B/11 Our Ref: ATT114/1048 (15)”, 9 November 2001, para 20.

  70. 70.

    As had been contained within the Terrorism (Bombings and Financing) Bill (see the Select Committee’s interim report, Foreign Affairs, Defence and Trade report, Interim Report on the Terrorism (Bombings and Financing) Bill, 8 November 2001), but then removed in the later Terrorism Suppression <Bombings and Financing> Bill (see the Committee’s final report, Foreign Affairs, Defence and Trade Committee, Final Report on the Terrorism <(Bombings and Financing)> Suppression Bill, 22 March 2002, 11).

  71. 71.

    Conte (2007, pp. 348–351).

  72. 72.

    Terrorism (Bombings and Financing) Bill [first redraft], clause 17T(1).

  73. 73.

    Terrorism (Bombings and Financing) Bill [first redraft], clause 17P(1): see letter from the Solicitor-General to the Attorney-General (n 69) para 16.

  74. 74.

    Terrorism (Bombings and Financing) Bill [first redraft], clause 17N(2).

  75. 75.

    See Letter from the Solicitor-General to the Attorney-General, “LEGAL ADVICE. CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: Terrorism Suppression Amendment Bill”. Our Ref: ATT395/24, 4 December 2006, paras 2.1–2.3.

  76. 76.

    Report of the Special Rapporteur on the right to a fair hearing (n 58), para 16. See also his report on the listing of individuals and entities (n 41) para 39.

  77. 77.

    Section 32 of the Terrorism Suppression Act 2002 sets out, in reasonably detailed terms, the definition of classified security information, requiring the head of the agency concerned to certify in writing that he or she is of the opinion that (see section 31(1)(c)):

    • the information is of a kind specified in section 32(2), being information that:

      1. (a)

        might lead to the identification of, or provide details of, the source of the information, the nature, content, or scope of the information, or the nature or type of the assistance or operational methods available to the specified agency; or

      2. (b)

        is about particular operations that have been undertaken, or are being or are proposed to be undertaken, in pursuance of any of the functions of the specified agency; or

      3. (c)

        has been provided to the specified agency by the government of another country or by an agency of a government of another country or by an international organisation, and is information that cannot be disclosed by the specified agency because the government or agency or organisation by which the information has been provided will not consent to the disclosure.

    • and that disclosure of the information would be likely to do any of the following things, as listed in section 32(3):

      1. (a)

        to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or

      2. (b)

        to prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by the government of another country or any agency of such a government, or by any international organisation; or

      3. (c)

        to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial; or

      4. (d)

        to endanger the safety of any person.

  78. 78.

    Concerning other aspects of fears associated with listing, i.e. the possibility of designation and the subsequent criminalisation of conduct, see Mohiuddin v Canada [2006] FC 664.

  79. 79.

    See, for example, submissions by the New Zealand Council for Civil Liberties (submission number 22), the Democratic Peoples Republic of Korea Society (submission number 28), the Indonesia Human Rights Committee (submission number 36), the Canterbury Council for Civil Liberties (submission number 45), the Latina America Committee of New Zealand (submission number 88), and the Auckland Council for Civil Liberties (submission number 95). See also Smith (2003, 61).

  80. 80.

    Where a defendant is proceeded against summarily, for example, the Court has an unfettered power to adjourn the hearing of any charge: Summary Proceedings Act 1957, section 45(1).

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Conte, A. (2010). The Designation of Individuals and Groups as Terrorist Entities. In: Human Rights in the Prevention and Punishment of Terrorism. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-11608-7_19

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