UNITED NATIONS -- An independent scholar hired by the United Nations to report on the promotion and protection of human rights says the UN Security Council's counterterrorism regime is operating outside the scope of its power.
Martin Scheinin, a Finnish expert on international law and the UN special rapporteur on counter-terrorism and human rights, presented his findings in his annual report on October 26.
At a news conference at UN headquarters in New York, Scheinin said his main concern was that the arbitrary application of counterterrorism measures by the Security Council jeopardizes one of the UN's fundamental goals: the protection of human rights.
For his report, he analyzed the consequences of two landmark Security Council counterterrorism resolutions.
Resolution 1373 was adopted unanimously by the Security Council in the aftermath of the September 11, 2001 terrorist attacks on the United States. The resolution is notable because it took the council only three minutes to pass, and there is no record of the meeting. Resolution 1373 imposes barriers on the movement, organization, and fund-raising activities of terrorist groups.
Scheinin also analyzed resolution 1267 adopted in 1999. Resolution 1267 imposed a regime of sanctions on Taliban and al-Qaeda individuals and entities, including an asset freeze, travel ban and arms embargo.
Currently, there are more than 400 names and entities on the sanctions list, even though dozens of politicians and diplomats have protested their seemingly arbitrary inclusion. Questions have been raised about the fairness of the inclusion of some individuals and the lack of recourse they have to protest their listing.
The government of Afghanistan, for one, has been lobbying for years to invalidate 1267 or at least to remove a number of influential names and entities with alleged or suspected Taliban connections. Without their removal, Kabul argues, the process of national reconciliation will not move forward.
Scheinin said 1373 -- the post-9/11 resolution -- "continues to pose risks to the protection of human rights and international rule of law."
He recommended the Security Council abandon the practice of creating official blacklists altogether, though he said he understood that such an extreme measure would likely meet with resistance from the Security Council.
Member States Disagree
The United States and Russia, two of the Council's five permanent members, strongly disagreed with Scheinin's findings. Both countries consider themselves at high risk for terrorist attacks, having been targets of major terrorist attacks in recent years, and have implemented a raft of anti-terrorism measures.
Scheinin said that it's wrong to impose binding permanent obligations for acts of terrorism that have not yet taken place, since there is no universally accepted definition of terrorism.
When the Security Council adopts counterterrorism measures, it does so under the authority granted to it by Chapter Seven of the UN Charter, which gives the council the power to maintain world peace.
However, Scheinin argued that measures taken by the Security Council under the authority of Chapter Seven would be better meted out through international treaties.
"Whatever we now have under Chapter Seven powers is not going to last eternally and there has to be willingness on the side of the members of the Security Council to rethink sooner or later," Scheinin said.
The Security Council has taken some steps to reform how it includes and removes suspected terrorists from its sanctions list, and Scheinin acknowledged as much.
But he said people are still being denied due process and stressed that it was "essential that listed individuals and entities have access to the courts to challenge sanctions that are result of political decisions taken by diplomats."
At present, listed individuals and entities do not have any such option.
There is a better solution to the council's desire to be proactive by adopting counterterrorism measures, Scheinin says. Replacing the existing resolutions with a single resolution, which would not have the legal weight of the UN's Charters Chapter 7, but would contain human rights protections, would prove a better solution, according to Scheinin.