You Can’t Always Get What You Want: The Kadi II Conundrum and the Security Council 1267 Terrorist Sanctions Regime
Title: You Can’t Always Get What You Want: The Kadi II Conundrum and the Security Council 1267 Terrorist Sanctions Regime
Citation: Essex Human Rights Review, 2011, 8, 1, 7-19, Special Issue on Balancing Counter-Terrorism Efforts with Human Rights a Decade After 9/11
External link: http://www.ehrr.org/
This essay about the 1267 Security Council sanctions regime discusses the legal limitations to the powers conferred to the Security Council under Chapter VII of the UN Charter and the implications in relation to international human rights standards. It holds the opinion that the Security Council has taken on a quasi-judicial role, while its procedures continue to fall short of the fundamental principles of the right to fair trial as reflected in international human rights treaties and customary international law. In particular it addresses the question of judicial review of sanctions in light of the establishment of the Office of the Ombudsperson, first mandated under Resolution 1904 to receive requests for delisting from the 1267 ‘Consolidated List’ and the implications of the recent split between the Al-Qaida and Taliban sanctions regimes through Resolutions 1988 and 1989. In its final section the essay analyses the recent Kadi II judgment by the General Court of the European Union (EGC) and concludes that, while effective judicial procedures for review are necessary but deficient in the 1267 regime also in its current form, the requirement of the EGC of disclosure of full evidence appears to present particular challenges in this respect. In the assessment of the authors, although Resolution 1989 does not deliver what critics, including the EGC have wanted, it may, if properly implemented, provide one important element of what is actually needed to reach an acceptable arrangement of due process in the Al-Qaida sanctions regime, due to the prospect that the Ombudsperson will de facto have a decisive role in delisting. This prospect, however, does not flow automatically from Resolution 1989 but will require also political commitment.
Type of Access: openAccess