The role of the United States consular of different countries especially without the domestic space and especially at the UN is one that cannot be underestimated and the counter terrorism policy of the US and its consular is well known all over the world. Also, the United Nations approach to anti-terrorism policy has had human rights pitfalls that are put forward by the controversial UN sanctions list of people associated with ISIS, Taliban, Boko-Haram and Alshabaab (Mustapha, 2014). The question that arises is; what is the role-played by the United States Missions in charting the UN policy on counter-terrorism, and are there leads of a different direction in regards to the issues under the Obama administration?
Security and Human Rights in Past US Administration
The United States through its consular have played a huge role in charting the United Nations Security Councils counter terrorism approach, including its human rights wing, the United Nations Human Rights Commission (Clark, 2010). Three weeks after the September 11, 2001 attack that was committed by the AL Qaeda the United States took the responsibility of pushing through the United Nations Security Council Resolution 1373 (2001) (Kaunert, 2010), which gave life to the international cooperation framework on terrorism prevention. The UNSC also created a vibrant anti-Terrorism Committee, comprising of the 15 council’s member states, to oversee the resolution implementation. When Chapter VII of the UN Charter was invoked Resolution 1373 gave agreed mandates to all member states of UN for unknown time frame by the consular, demanding them to freeze the accounts of terrorism financiers and assets. It demanded that any individual that is involved in any support of terrorism in terms if finances, preparation, planning of terror acts were brought before a court of law. The resolution resolved that terror acts be taken as adverse criminal offences in legal environment and the punishments of such acts should be reciprocated.
Irrespective of the effects and the magnitude of the measures put forward and their adoption without the consultations of the 177 UN member countries that are not part of the UNSC, the resolution touches on human rights, but with the omission of one paragraph which provides for seekers of asylum. It remained like that for governments to be creative on how to maintain standards human rights standards whereas keeping on with the implementation of the resolution. Practically, Resolution 1373 together with other counter-terrorism resolutions of the Security Council including nations with questionable standards through their consular have re-ignited the passage of some vague anti-terrorism laws that have in turn led to lasting effects on human rights organizations. For instance some Nigerian political leaders used the US consular to Nigeria and the anti-terrorism laws to target political opponents, common criminals and other minority community members . The main aim of this witch hunt is self-interest of certain American political leaders and entrepreneurs to corruptly get oil exploration deals by sponsoring terrorists (Ochieng, 2014).
However between 2004 and 2009 the UNSC came up with certain anti-terror resolutions, which were done in reference human rights protection. During that time the United states worked in conjunction with the its consular in China and the Chinese government and also its US consular to Russia and the Russian government within the Security council in order to uphold references of human rights resolutions, in order to make anti-terrorism committees to work as weakly as possible. A breakthrough cam up in 1496 (2003) majorly at the pressure of Mexico, a non-permanent member of the UNSC provided that ”States must ensure that any measures taken to combat terrorism comply with all their obligations under international law and should adopt such measures in accordance with international law, in particular human rights, refugee, and humanitarian law” The US then capitalized on the ambiguity of the word “should“ instead of adopting a clearer word “shall“ that gives obligations to member states to implement such counter-terrorism according international law. The lobbying of how the statement was done through the US consular in different Security Council member states. To date both the United Nations Security Council and the US have never altered the word (Isanga, 2009).
An integral component of the US counter-terrorism policy in fighting terrorism with the UN was based on sanctioning associates and members of terror groups and cells like Taliban and Al-Qaeda by the use of the listing procedures created by the Security Council Resolution in 1999. The council’s move was influenced by the 1998 bombing of US embassies in Tanzania and Kenya that was masterminded by Osama Bin Laden. The resolutions that went through two years prior to the September 11 attack, through the US consular in Afghanistan, Pakistan, Kenya and Uganda and all other US consular in UN member countries strengthened in one binding resolution and united to exclude human rights from the resolve while obliging all member nations to freeze the bank accounts and banning of individuals whose names appear on the Consolidated list from travelling maintained by Taliban and Al-Qaeda Sanctioning committee that was represented by representatives from different US consular that are members of the Security Council.
The Sanctions Committee that composes of the 15 member states of the UNSC, has the mandate to identify and freeze the bank accounts and assets of persons, corporations and groups that are linked to terror groups. With Taliban, AL Qaeda in Afghanistan, Book-Haram in Nigeria and ISIS in Syria, the US is aided by an eight-member team that helps in monitoring the activities of terrorism suspects through the US consular and security agents in these countries (Bures, 2010).
In the preceding weeks after the September 11, twins tower and pentagon attack, close to 200 names of terror suspects were added by the United States on the Consolidated List. Since other Security Council member countries through their consulates were given 48 hours that is today five days to dispute the list, and with the fact the states were only granted the first name, those named in this list always took forever without being identified. By March 10, 2010, the names totaled to 498 on the Consolidated list, 137 people were linked to Taliban, Al-Qaeda was linked to 258 of them, many whom had been on the list for the last nine years (Michaels, 2007).
Incorporating some legal measures sanctioning administration is important both from a human rights angle but on the other hand to make sure that the effectiveness of the system as an essential antiterrorism measure. Competence lies, in part, on whether the control measures are, and are seen to be, legal (Smith, 2013). Numerous states —especially in the in Europe—do not easily more introduce new names in to the list. although there seem is problems with the procedure of listing.
Governments are supposed to be responsible for the security of their citizens and one of the security threats is terrorism. Some people would question ho freezing of accounts of people linked to terror activities can help stem terrorism. Moreover the United Nations High Commission for Human Rights has found the targeted sanctions system as more effective than the former comprehensive sanctions system. Members states are many times caught in between their mandate under Article 103 of the UN Charter to exercise all inclusive resolutions of the Security Council, and their obligations to maintain equally inclusive human.
The absentia of the primary legal securities, largely due to Russia, China, and the United States insistence and support by many other member states of the Security Council, is even more astonishing in a government instituted by a United Nations organ, led by its Charter to function in a uniform manner based on the principles of the rule of law. The lack of process of equality and the consequential impact of UN leadership as a center of legal global law drew the attention of former UN Secretary-General Kofi Annan after presidents, some from nations whose citizens were on UN sanctions lists, in 2005 urged the Security Council ”to guarantee that clear and fair processes are availed for placing personnel and organizations on consolidated lists and to remove and also grant humanitarian exemptions (Chesterman et al, 2008).
First, numerous people whse names were in the Consolidated list were not aware of such status until they wanted to travel or visited their banks but could not withdraw money. Of course, it is until 2004 that the Security Council could notify people of the sanctions. Secondly once a person is listed, there is a possibility that he could remain in that list for a long time. To be listed is a very simple procedure since what is needed is just a nomination for a country to make a case and the minimal period provided to make an appeal when listed; while the removal of a name from the list requires a consensus fro all member states on the Sanctions Committee, hence any member state has veto powers (Reich, 2008). This is list sometimes include dead people. In June 2006 unto 27 people believed to be dead were still on the consolidated list.
Third, there is no basis given as why somebody is placed in the consolidated list. Next, until of recent, listed individuals had no right to express themselves. Until certain changes were effected in 2006 that exempted one from being heard by the UN but instead that could only happen when somebody`s case was taken by the state, there was none to reprieve an organization of an individual from such a situation.
Lastly, prior to the resolution that was implemented in 2008, the Sanctions Committee had no audacity conduct any in-house interview of the many names that remain in the consolidated list for many years. As a result some individuals, organizations and countries that are on the consolidated list have in the past found it hard to agree with some of the Security Council member states and United States in regards to the targeted sanctions being just preventive rather than being punitive jus as held by the former High Commissions for Human Rights (Johnstone, 2008).
With ways to find reprieve all closed, those individuals that believed that they were wrongly vindicated started to come to find justice before regional and national courts with high registration of success. Cases were brought before international and domestic courts form different parts of the world to challenge the validity of the consolidated list as indicated in the Ninth UN Monitoring Team`s Report of May 2009. For instance Al Barakaat International Foundation in Sweden and a Saudi national named Alrazik , a resident of Saudi Arabia challenged the inclusion of their names in a European sanction list by the argument that implementation of sanctions though the freezing assets is in violation of the EU law and the essential rights. The ECJ while presiding over this case omitted the legality of the sanctions of the Security Council but id dis unambiguously refuted claims the procedures of reexamination established by the Security Council was enough human rights guarantee. The verdict of the court was that the Security Council was intergovernmental and diplomatic and did not have any legal protection like the opportunity for those that have been vindicated to assert their rights, particularly since the removal of any name fro the consolidated list needed a consensus of all member states. The ECJ found out that the listing of Al Barakaat and Kadi a as well as the freezing of their bank accounts and property for six months without the knowledge of the same was done in violation of the EU regarding the petitioners right to heard before a court of law and their right to fair court trial (Baehr-Jones, 2007).
A couple months afterwards the Human Rights Committee, which is the stand alone organization that oversees the International Covenant on Civil and Political Rights implementation, learned that Belgium had gone against the human rights as stipulated in the Nabil Sayadi, born and Patricia Vinck a Lebanese and his wife, had their assets were frozen after the Belgian government forwarded their names to the list of the Security Council. With the claim that they are innocent of the claimed links to Al-Qaeda and Taliban, both had failed numerous times to convince the US security authority. In fact action had been established against them but Belgium in disregard of the criminal investigation result. In 2005 it was found out that there existed no criminal act committed by the two parties. Belgium subsequently requested the United Nations Sanctions Committee to eradicate the two states from the list without much success.
However the Human Rights Committee held the republic of Belgium responsible for the continued presence of Sayadh and Vinks on the EU and the UN lists. The committee’s verdict was that they underwent great violations of human rights freedom of movement and the malicious reputation attack on and honor that is illegal under Article 17 of The International Covenant On Civil and Political rights for bring in the sanctions list as associates of Taliban and Al-Qaeda on the grounds of information offered by the country, and were likewise directed to pay some money (Beauthier, 2008).
A federal court in Canada made criticisms on the sanctious administration when in June 2009, the verdict was that Abousfian Abdelrazik, an individual of Sudanese citizen had gotten a Canadian citizenship and was later placed on sanctioned people`s list in 2006 for suspicion of his link with Al-Qaeda upon request by the US. He had a right to go back to Canada. One year on the Security Council refused to delist him from the sanctions list without any reasons. The 1267 delisting and listing process do not have limited right to be heard before a court of law and it is questionable whether it has the requirements of impartiality and independence. In Abdelrazik`s case, the country that is requesting the delisting is Security Council member country that decides whether to delis or list, and the judge is the accuser (Forcese & Roach, 2010)
When the sanctions of the UN became questionable, certain concerned leaders like Kofi Annan started to take action. IN 2006, while attending a states General assembly meeting during the World Outcome Summit he presented a document titled ”Targeted Individual Sanctions: Fair and Clear Procedures for Listing and De-listing.”. He said that individuals and organizations concerned would base credibility and legitimacy of the sanctions on fairness of procedures and this would be the roadmap to an effective remedy (Bothe, 2008).
The General assembly in 2006 implemented the UN Global Counter-Terrorism Strategy, that condemned the union`s terrorism sentiments and established fairness and clearer procedures. It did not only recognize human rights but also better anti-terror measures (Bothe, 2008). In 2008 a group of UN Missions like Switzerland, Liechteein, Germany, Sweden, Denmark and Netherlands through their consulates submitted to the United Nations Security Council to consider altering the counter-terror measures.to embrace human rights approach to take care of listing and delisting. These move was welcomed by NGOs but criticized them for being limited in their move since 2001. The NGOs indicated that the listed individuals should be notified and concrete evidence be presented in regards to their listing. They should be given a voice to challenge consolidated sanctions listing by the help of an attorney. NGOs indicated that delisting should not be consensus based, but the US AND other four permanent members Security Council members nations of the Security Council opposed the idea refused.
THE OBAMA ADMINISTRATION ADRESSING THE PROBLEM
The Obama administration is without no fault steering a human rights based fight against terrorism as opposed to its predecessors. Its ban on torture, the close of centers for CIA centers of detention and the plan to close the Guantanamo Bay prison are just some of the examples. But the Obama administration has also not completed the much-needed reforms as the Guantanamo correctional facility is not completely shut down and its failure to complete the move that terrorism suspects be tried in military courts. The US citizens on the other side criticize the governments proposal of indefinite detention without trial system and its delay to accept that the obligations is also applicable to personnel that are under the authority of the US government or effective control outside the national boundary (Freedman, 2009)
It was time for the UN Security Council to peform and this time there were many member states faced legal implications in different courts and there was reluctance among member states to add other names to the sanctions list. The strides that the UN Security Council had mad from 2006 to the time Obama took power were just cosmetic. The UNSC in June 2006 worked towards achieving fair procedural sanctions, but that was done in a non-formal presidential statement. It later created an integral part in the granting of delisting requests in the name of the Resolution 1730 (2006) meaning that a person shall be granting delisting petitions and be transmitted to designated concerned governments through their mission. It provided that the petitioner grants more grounds of delisting and listing and the listed persons is informed within a fortnight. The Resolution 1822 (2008) provides the a review be conducted and the names of dead listed people be removed from the sanctions list (Biersterker, 2009)
Breakthrough of the Ombudsperson
The Obama administration started to encounter the challenge a time when the environment was ripe for overhaul. The Security Council member states commended this move just from the onset when the US started talks on revising the measures in 2009, they had a positive attitude toward the move. The position that Costa Rica, Austria and Mexico that are non-permanent members through their consular pressed passionately for the legal due process so that Austria as the Sanctions Committee Chair could chart the way for debate was of great help.
The US Mission in New York on December 17,2009 played a pivotal role in the process of drafting after many months of closed door discussions in Washington DC, Security Council Resolution 1904 was applied unanimously under Chapter VII of the UN Charter (Papastafridis, 2007). Reapeating its outright disapproval of Al-Qaeda, Taliban and Osama Bin Laden, the Security Council Secretariat directed the Secretary General of the UN to assign an ombudsperson who is properly trained and with experience in matters political science, law and international relations, counter-terrorism, human rights and sanctions for a period of eighteen months to intermediate for persons and organizations that were supposed to be delisted from the consolidated sanctions list .
Most importantly is that the ombudsman would be privileged to direct relationship with the nations concerned as well as the petitioners. The most controversial part of the whole process was the ombudsman suggestions to delist during any of the Sanctions Committee meetings, a move that was accepted by certain Security Council member states (Spanheimer, 2012). There was also a compromise that permitted the ombudsman only to do an analysis of present information and to present to the sanctions committee essential arguments in regards to the requests to delist. They faced opposition majorly from Russia and China but the US missions to the two countries played an integral role in mediating for their change of mind.
The standpoint of the US in fighting terrorism and matters international law has been widely evident through its different missions, embassies and consular all over the world. Their role has changed tremendously especially in terms of the observation of human rights. Several terror instances have equally shaped how the UN its mission all over the world pass laws in regards to the counter-terror measures. Though the war against terror has been a tough one the delimitation is that terrorists strike ones on civilians and declare that victory. The United sates do no negotiate with terrorist and it is serious matters when in conjunction with her missions all over the world and the UN declare a counter-terrorism approach that has respect for human rights. Long live the UN. Long live America.
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