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Terror blacklisting

Terror blacklisting, terror-listing or proscription describes the the act of designating a group or individual as terrorist, as an associate of known terrorists, or as a financial supporter of terrorism. Terror blacklisting, also called terror listing, is a centralized system through which persons who are accused, or suspected of terrorism, or who are being investigated for terrorism, are removed from the ability to work, transact business, and are generally excluded from all activities of public life, economic and social. This is usually conducted via the blocking of  financial activity.

The most famous terror-blacklisting system is run under the UN Security Council Resolution 1267 list and EU terror blacklists. National lists are also maintained, the most famous of these being the United States lists maintained by the U.S. Treasury, inter alia the OFAC (Office for Financial Asset Control) and the SDN (list of Specially Designated Nationals) lists. International adherence to national and regional terror blacklists is mandated by UN Security Council Resolution 1373.

Persons terror-listed are subjected to a form of civil death in that their legal rights are functionally nullified.

Human rights organizations and European parliamentary bodies have objected to terror blacklisting regimes due to the lack of due process, notably the lack of judicial review, and of the "arbitrary nature" of terror-blacklisting. Very few terror-blacklisting cases have been heard in court; nearly all cases heard, have been in European courts.

UN Security Council blacklists

 * It is frankly shocking to see that an international organisation whose purpose it is to affirm the principles of peace, tolerance and justice uses itself means that do not respect the fundamental principles at the base of any restriction of individual freedom in any civilised country: the right to be heard, the right to appeal to an in dependent tribunal, that to a fair trial, the principle of proportionality. The Parliamentary Assembly of the Council of Europe can certainly not remain indifferent in the face of such abuses.

Specially Designated Nationals
Different tags associated with SDNS are provided on the U.S. Treasury website

IEEPA
International Emergency Economic Powers Act of 1977

The President’s authority to issue such executive orders stems from the International Emergency Economic Powers Act of 1977 (IEEPA). The executive order covers financial transactions and authorizes property controls with respect to three categories of persons: (1) individuals or entities determined “to have committed, or to pose a significant risk, of committing an act or acts of violence that have the purpose or effect of ... threatening the peace or stability of Iraq ...”; (2) individuals or entities determined “to have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of, such an act or acts of violence or any person whose property and interests in property are blocked pursuant to this order ...”; and (3) individuals and entities determined “to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to this order.

The broad language of this executive order has been the subject of a degree of criticism as potentially reaching beyond insurgents in Iraq to third parties, such as U.S. citizens, who may unknowingly be providing support for the insurgency

On 23 September 2001, President Bush signed a generalized IEEPA designating any person who are determined to be, or who might someday in the future, be linked to terrorism. Other IEEPAs are country-specific, such as EO 12957, which relates to Iranian Petroleum reserves [http://www.treasury.gov/resource-center/sanctions/Documents/12957.pdf Executive Orders 12957—Prohibiting Certain Transactions With Respect to the Development of Iranian Petroleum Resources], or EO 13608 addressed sanctions on Iran and Syria. ,

U.S. terror investigation "secret" blacklisting
U.S. secret terror-blacklisting involves deployment of Section 106 of the Patriot Act, which allows for persons, and their transactions to be proscribed (or blocked) "pending investigation", i.e. "blocked pending investigation" (BPI). BPI became well-known vis-a-vis the Kindhearts vs. Treasury case. What is new in this form of terror-listing is that BPI is being deployed in a manner whereby the listing (or proscription) of the persons, or organizations in a manner unpublished. The rationale for this is that the behavior of the suspected terror-suspected person or organization will be inhibited if they are aware that they are under investigation. In this light, information about the investigation is blocked under the Privacy Act of 1974. In this manner, the (Pub.L. 93–579, 88 Stat. 1896, enacted December 31, 1974, 5 U.S.C. § 552a), ostensibly a law designed to provide information about U.S. citizens about their personal information such as is recorded by U.S. federal agencies. But the Privacy Act is being used as a de facto State secrets privilege

Exemption 7(C) Exemption 7(C) provides protection for personal information in law enforcement records. This exemption is the law enforcement counterpart to Exemption 6. (See the discussions of the primary privacy-protection principles that apply to both exemptions under Exemption 6, above.) Exemption 7(C) provides protection for law enforcement information the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy."

Personal privacy interests are protected by two provisions of the FOIA, Exemptions 6 and 7(C). While the application of Exemption 7(C), discussed below, is limited to information compiled for law enforcement purposes, Exemption 6 permits the government to withhold all information about individuals in "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy." (1) These exemptions are a vitally important part of the FOIA's statutory scheme, (2) but of course they cannot be invoked to withhold from a requester information pertaining only to himself. (3) 1

G8 terror measures
Since 1995, a series of G8 terrorism measures have been produced during meetings, the first of which was 1995 Ottawa Ministerial Declaration on Countering Terrorism, which was followed by a series of meetings , culminating in the Seaisland Summit G8 Meeting of Justice and Interior Ministers , held in the United States in 2004.


 * Communiqué, May 11, 2004 PDF [HTML]
 * Recommendations for Enhancing the Legal Framework to Prevent Terrorist Attacks PDF
 * Recommendations on Special Investigative Techniques and other Critical Measures for Combating Organized Crime and Terrorism PDF
 * Recommendations for Sharing and Protecting National Security Intelligence Information in the Investigation and Prosecution of Terrorists and Those Who Commit Associated Offenses PDF
 * Statement of Principles to Protect Asylum Processes from Abuse by Persons Involved in Terrorist Activities [PDF] [PDF2]
 * Best Practices for Network Security, Incident Response and Reporting to Law Enforcement PDF
 * Declaration on Recovering the Proceeds of Corruption PDF

Council of Europe (PACE)
In 2008, as a by-product of the Youssef Nada terror blacklisting case to the Council of Europe, Swiss Senator Dick Marty has criticised the United Nations Security Council for blacklisting individuals suspected of having links to terrorism without evidence of any wrongdoing. In his discourse, Senator Marty accused the Security Council of flouting its human rights principles, claiming that the UN blacklisting process discredited the international fight against terror. According to Marty, individuals placed under terror blacklisting have their assets frozen, are banned from traveling and are unemployable. Terror-blacklisting is carried out behind closed doors by a New York-based committee, the "1267 committee", at the request of Security Council members. Marty noted that persons blacklisted are not informed or given a chance to be heard, and there is no appeal, and most were not informed of their blacklisted status. As from 2009, the list currently contained 362 individuals and 125 companies or organisations.

Although the sanctions are non-criminal in nature – and mainly targeted at the freezing of assets and the prevention of cross-border travel – they can have drastic effects on individuals, as the case presented by Marty of a certain mr. Y makes clear. Mr. Y, a 75-year old Italian businessman of Egyptian origin who lives for more than thirty years in Switzerland, is one day included in the black list, without being informed, without having been heard and without the possibility of appeal. Although criminal charges against him are subsequently lodged, prosecution is brought to a halt once it becomes clear that evidence is lacking. Mr. Y. remains on the list however and all efforts to get him off that list are futile. Due to the sanctions, mr. Y cannot continue his small business and is unable to visit his children and grandchildren who live abroad. The problem with the Security Council black list is that it is very easy to get people on the list, but sheer impossible to get them off that list again. People can only be removed if the home country so requests and if all members of the Sanctions Committee agree. Marty observes: ‘There should also be a "de-listing procedure enabling those who consider themselves to be innocent to have their names removed from the list. Yet – and that is quite frankly an outrage – there is no such procedure." And: "It is shocking to see that an international organization whose purpose it is to affirm the principles of peace, tolerance and justice uses itself means that do not respect the fundamental principles at the base of any restriction of individual freedom in any civilized country: the right to be heard, the right to appeal, that to a fair trial, the principle of proportionality."


 * "Even the members of the committee which decides on blacklisting are not given all the reasons for blacklisting particular persons or groups. Usually, those persons or groups are not told that blacklisting has been requested, given a hearing or even, in some cases, informed of the decision – until they try to cross a frontier or use a bank account. There is no provision for independent review of these decisions".

Swiss criticism and withdrawal from UNSCR 1267
In 2006 before the Security Council, the Representative of the Permanent Mission of Switzerland to the United Nations in New York, Peter Maurer, presented on 30 May 2006 a declaration on behalf of Germany, Sweden and Switzerland to the Security Council. He observed that certain procedures linked sanctions committee, particularly the Comittee 1267, may infringe upon basic principles of human rights. Recommendations addressed by the ambassador included refining the listing criteria in adding new names to the lists, notifying targets, introducing a periodic review of listings and developing recourse mechanisms. The ambassador Maurer had already voiced some of these criticisms in July 2005.

This was presented by Swiss Senator Dick Marty in communications to ECtHR Court President Jean-Marc Costa, in relation to the then-pending of Youssef Nada. In this package of communications, Mr. Marty presented the opinions of the Swiss Parliament in relation to the UNSCR 1267, as well as the recently completed (in 2010) Swiss option for case-specific and conditional withdrawal from the UNSCR 1267.

Norway withdraws from EU terror list
In January 2006, Norway withdrew from the EU terror-list, on grounds that Norway was not an EU member, and therefore did not participate in consultations. Foreign Minister Jonas Stoere noted that Norwegian efforts towards conflict-resolution and peace negotiations were hindered by the terror-lists.

Removal of legal rights
Persons terror-listed are subjected to a form of civil death in that their legal rights are functionally nullified. In this sense, terror blacklisting can have the effect of rendering a person to a status of extra legem positus, or the status of outlaw, i.e. removal of legal personhood. Use of the word 'proscription' in terror blacklisting is accurate. Persons under a terror-blacklisting are effective enemies of the state, this proscribed from civil life and social and economic activity. Terror blacklisting is a modern day version of Roman proscription, an ancient form of administrative death sentence by exclusion or 'banning'.

Due process
There is now an irrefutable body of expert legal opinion that views international proscription regimes as incompatible with the most basic standards of due process. The adverse and unacceptable impact of the sanctions on fundamental human rights is also abundantly clear and systemic violations have been recognised repeatedly in judicial proceedings, particularly in Europe.

PMOI
In December, an EU court questioned the 2002 decision to place the People's Mujahadeen Organization of Iran (PMOI), a Paris-based Iranian opposition group, on the terror register and freeze its assets. Although there have been some procedural changes to how the list is run since the ruling - all groups on the list now sent statements of reasoning - PMOI has remained on the list.

Jose Sison
In July, meanwhile, an EU court overturned a decision by member states to freeze the assets of Philippine rebel leader Jose Maria Sison and the Al-Aqsa foundation, based in the Netherlands. The Luxembourg-based court of first instance found that EU governments had breached the rights of both parties - who are both on the EU terror list - by not telling them why their assets had been frozen.

Yusef
Earlier, the European Court of First Instance (CFI) in its judgments in Yusuf and Kadi, which concerned actions for annulment against a regulation implementing the Security Council black list, noted that there was a lacuna in the judicial protection offered to those on the list, but that this lacuna was not in itself contrary to norms of jus cogens. Since SC resolutions take precedence over Community Law, the CFI held that it could only test the procedure employed by the Sanctions Committee against rules of jus cogens and not against principles of Community Law.

Al Kadi and Bakarat
The Kadi case was resolved in 2008.

Related terms
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 * attainder
 * Blacklisting
 * civiliter mortuus
 * civil death
 * extra legem positus

Council of Europe
Council of Europe webpage: United Nations Security Council and European Union blacklists

UN Security Council black lists: Introductory Memorandum (pdf, 32 p.), Committee on Legal Affairs and Human Rights, Parlementary Assembly of the Council of Europe Report by Dick Mary, document AS/Jur (2007) 14*, 19 March, 2007

Report of the Parliamentary Assembly Committee on Legal Affairs and Human Rights

Recommendation 1824

Resolution 1597

UN Security Council
Swiss statement to the UN Security Council, on behalf of Germany, Sweden and Switzerland, 30 May 2006

Resolution 1267 also known as «the Al-Qaida and Taliban Sanctions Committee» Security Council Committee

European Court of Justice
(ECJ Press release) Omar Mohammed Othman v Council and Commission, Judgment of the Court of First Instance in Case T-318/01

Statewatch
Blacklisted:Targeted sanctions, preemptive security and fundamental rights, European Center of Constitutional and Human Rights (ECCHR), by Gavin Sullivan and Ben Hayes, 2010

Statewatch Analysis Time to rethink terrorist blacklisting, by Gavin Sullivan and Ben Hayes, 2010

[http://epress.anu.edu.au/war_terror/mobile_devices/ch12s03.html#d0e10313 The European Union, Counter‑Terrorism Sanctions against Individuals and Human Rights Protection, Fresh perspectives on the war on terror / editors Miriam. Gani, Penelope Mathew. ISBN: 9781921313738 (pbk.) 9781921313745]

Other
Marty slams "injustice" of UN blacklists, Swissinfo, 25 April, 2007

Technology-led policing edited by Evelien De Pauw, Paul Ponsaers, Willy Bruggeman, Kees Van Der Vijver, Piet Deelman

The ‘black list’ on the website of Swiss Federal Department of Economy (in French, German or Italian) or The ‘black list’ on the site of the Security Council Committee

Swiss government: Threats to international peace and security caused by terrorist acts (pdf, 8p.)

Panel Decries Terrorism Blacklist Process, Washington Post, Molly Moore, November 13, 2007

ACLU: Blocking Faith, Freezing Charity, June 16, 2009