Judicial powers, due process and evidence in the Security Council 1267 Terrorist Sanctions Regime: the Kadi II conundrum

Abstract

The United Nations Security Council regime of listing Al Qaida and Taliban terrorists under Resolution 1267 (1999), as subsequently amended, has been subject to increasing criticism, including through litigation and judicial pronouncements. The role of EU courts in voicing the criticism, and quashing EU-level implementation measures of the sanctions required under the 1267 regime, has become important. The authors assess the current status of the 1267 regime, notably after the adoption of Resolution 1904 (2010) and the establishment of the office of a delisting Ombudsperson. In the view of the authors, also after the reforms, the 1267 regime falls short of international or European standards concerning fair trial or due process. After discussing the Kadi II ruling by the General Court of the EU, the authors propose a political solution to the tension between the legal orders of the UN and the EU, namely that those EU Member States that sit on the Security Council should block any terrorist listing proposal, where the proposing state does not accept the disclosure of information used for the listing decision in a manner that will enable the EU courts to exercise judicial review over the implementation of the resulting sanctions, to a degree that will be acceptable to these courts. As to the issue of the required degree of disclosure, the authors propose that EU courts, departing from the Kadi II ruling by the General Court, should be prepared to accept a more modest degree of disclosure than the sharing of all evidence with the listed individual or entity.