Improving Human Rights and Counter-Terrorism

With the passage of United Nations Security Council Resolution (SCR) 1904 a new architecture for effective UN counter-terrorism action has been constructed. Along with it comes a welcome recommitment to human rights norms by the Security Council. This mutual reinforcement of counter-terrorism and human rights was rather improbable one year ago. While SCR 1904 is a far-reaching set of reforms and thus noteworthy in its own right, its adoption provides insight into the new 'listen then lead' style of the US in the Council.

For much of this decade US pundits and politicians have incorrectly considered the UN as peripheral to serious counter-terrorism. Few Americans recall that in 1999 the Security Council led the condemnation of Taliban tactics against women and al-Qaida terrorism, froze their international funds, arms and restricted travel via SCR 1267. After 9-11, under what became known as 'the 1267 regime' the UN went fully global with this listing of al-Qaida suspects and the lock-down on financial assets.

But legal and ethical dilemmas multiplied as more than five hundred individuals and entities were placed on the 1267 list. In prioritizing counter-terrorism, glaring shortcomings emerged as the regime's listing and delisting process failed to meet basic, internationally accepted human rights standards. In particular, there was no notification of cause for those listed, nor access by them to the evidence used to place them on the list, as well as no provision for a right of appeal to contest one's listing. The lack of transparency of the 1267 Committee procedures compounded the problems.

The flaws in this UN approach sparked a group of like-minded states led by Lichtenstein, Switzerland and Sweden to push the Security Council to consider sweeping reform. The debates were contentious as some states labeled US unwillingness to recast the 1267 regime as indicating that Washington had sacrificed human rights for counter-terrorism without any evidence that due process reforms would jeopardize security. Although some revamping occurred in SCR 1822 passed in June, 2008, the like-minded states saw it as a half-way measure, while the US considered it as far as they would ever go on this issue.

The controversy deepened as rulings in recent European court cases led to the annulment of 1267 listings. A report issued by an Eminent Panel of the International Commission of Jurists provided in-depth critique of the workings of the regime. The detrimental effects on how Council members think about targeted sanctions were substantial. Since the mid-1990s virtually all UN imposed sanctions have involved listing individuals and locking down their assets. Many rightfully see this as a powerful tool for international law enforcement against mass murderers, arms proliferators and others beyond terrorists who threaten peace and security. But tainted 1267 procedures jeopardized all of this.

As a dual triumph of human rights and counter-terrorism SCR 1904 restores the legal and moral grounding on which targeted sanctions must rest. The new resolution demands that before an individual or entity is listed both the designating state and the 1267 Committee must meet much higher evidentiary standards and prepare full case summaries defending the listing. Moreover, the resolution creates an Ombudsperson to whom delisting requests are made and who would lead a new process to help the Committee assemble information relevant to the request from multiple sources and ask questions of the petitioner. The Committee and its hard-working Monitoring Team commit themselves to a thorough review of all names on the 1267 list by June, 2010, including a pledge to delist those who are deceased or improperly listed. This reform restores fairness and transparency.

Equally far-reaching has been the leadership shown on this issue by the US in recent months. In shifting from stonewalling to shared problem-solving, the US has indicated a willingness to listen and then lead in a manner the Council welcomes and the UN badly needs. Much like the new procedures set forth in SCR 1904, the new US posture will serve to strengthen both human rights and effective counter-terrorism in a world that deserves both.