Tuesday, April 21, 2009

More on the UN sanctions listing mechanism: The Sayadi case before the Human Rights Committee

Did I say that last week would be busier on here? This week. I meant this week. Now, to get the ball rolling, a quick link to a subject that I have been meaning to post on for months: the Sayadi case before the Human Rights Committee (hat tip to Marko Milanovic over at EJIL:Talk!). It is not a massively important issue, and there isn't a huge amount of GAL in it, but it should provide an interesting footnote for those interested in the issues that arose in the Kadi judgment, and the Security Council's sanctions listing mechanism more generally. The text of the decision is available via the PHD Studies in Human Rights blog.

The case involved the listing of certain Belgian nationals on the basis of information provided to the Committee by the Belgian Government. The individuals involved challenged their listing before the Belgian Courts, who, interestingly, ordered that the Belgian Government "urgently initiate a de-listing procedure with the United Nations Sanctions Committee and to provide the petitioners with proof thereof, under penalty of a daily fine of €250 for delay in performance". The Belgian Government requested delisting, but at the time of the Communication to the HRC, this had been unsucessful. The Belgian courts also, incidentally, cleared the individuals involved of guilt in any alleged criminal activities.

The HRC was thus compelled to consider the relation between the ICCPR and the UN Charter, and Security Council resolutions in particular. It did so in the following passage, reminiscent at least in part of the ECJ's Kadi decision:

Although the parties have not invoked article 46 of the Covenant, in view of the particular circumstances of the case the Committee decided to consider the relevance of article 46. The Committee recalls that article 46 states that nothing in the Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations. However, it considers that there is nothing in this case that involves interpreting a provision of the Covenant as impairing the provisions of the Charter of the United Nations. The case concerns the compatibility with the Covenant of national measures taken by the State party in implementation of a Security Council resolution. Consequently, the Committee finds that article 46 is not relevant in this case.

Most striking here, however, is that there is no mention of Article 103 of the UN Charter, which of course establishes the supremacy of UN obligations over all others. Indeed, although Belgium raises art. 103 in its own submissions, the HRC seems to ignore it entirely (although it does arise frequently in the dissenting opinions appended to the decision).

The complainants alleged the violation of a raft of ICCPR provisions, including the right to an effective remedy, the right to travel freely, the right not to be subject to unlawful attacks on their honour and reputation, the principle of legality of penalties, respect for the presumption of innocence and the right to proceedings that afford procedural and structural guarantees (para. 10.4). Of these, the HRC foudn a violation of the right to travel freely and the right not to be subject to unlawful attacks on reputation.

The reasoning behind this is intruiging, although perhaps, as Milanovic notes, more for its odd rather than its compelling nature. In the case of the right to travel freely, the Committee noted that Article 12 could be restricted for certain purposes, amongst which was certainly compliance with UNSC resolutions; but that it retained nevertheless the right to "to consider the compatibility with the Covenant of the national measures taken to implement a resolution of the United Nations Security Council" (para. 10.6). It then held, in a passage worht quoting at a little length,

The Committee notes that the obligation to comply with the Security Council decisions adopted under Chapter VII of the Charter may constitute a "restriction covered by article 12, paragraph 3, which is necessary to protect national security or public order. It recalls, however, that the travel ban results from the fact that the State party first transmitted the authors’ names to the Sanctions Committee. The proposal for the listing, made by the State party on 19 November 2002, came only a few weeks after the opening of the investigation on 3 September 2002. According to the authors, this listing appears to have been premature and unjustified. On this point, the Committee notes the State party’s argument that the authors’ association is the European branch of the Global Relief Foundation, which was placed on the sanctions list on 22 October 2002, and the listing mentions the links of the Foundation with its European branches, including the authors’ association. The State party has furthermore argued that, when a charitable organization is mentioned in the list, the main persons connected with that body must also be listed, and this has been confirmed by the Sanctions Committee. The Committee finds that the State party’s arguments are not determinative, particularly in view of the fact that other States have not transmitted the names of other employees of the same charitable organization to the Sanctions Committee (see paragraph 9.2 above). It also notes that the authors’ names were transmitted to the Sanctions Committee even before the authors could be heard. In the present case, the Committee finds that, even though the State party is not competent to remove the authors’ names from the United Nations and European lists, it is responsible for the presence of the authors’ names on those lists and for the resulting travel ban (para. 10.7).

The Committee then held (para. 10.8) that the fact that Belgian courts had dismissed the criminal case against the complainants, and that Belgium had requested de-listing from the Sanctions Committee, meant that these resolutions could no longer be viewed as a legitimate grounds for restricting freedom under Article 12(3) of the ICCPR, as "the facts, taken together, do not disclose that the restrictions of the authors’ rights to leave the country were necessary to protect national security or public order". A similar argument was used to support the finding that Belgium was responsible for an unlawful attack on the honour or reputation of the individuals involved (para. 10.13).

Here, the Committee seems to have argued that the internationally wrongful act of the Belgian Government under the ICCPR was not the implementation of the Security Council Resolution itself, but rather the act of communicating the individuals' names to the Sanctions Committee without sufficient evidence to do so, and without giving them the right to be heard. Over at ESIL:Talk, Milanovic is dismissive of this claim ("[t]his is not reasoning, not even result oriented jurisprudence – this is simply the Human Rights Committee’s wishful thinking"). I'm not entirely sure that it can be dismissed so easily - I see no a priori reason why an act of a State in initiating a process without sufficient grounds to do so should not be wrongful, particularly where that process both denies the basic human rights of the accused and is irreversible by the initiating State alone - but the fact it is the UN Security Council acting under Chapter VII certainly complicates matters. Indeed, this may be the key point, if the HRC's decision relies on the implication that the UN procedure violates human rights, as this in turn implies a power to review Security Council proceedings - a possibility that the Committee did not entertain here. Milanovic is thus undeniably correct that the decision would have benefitted massively from addressing this point in general, and the Article 103 problem in particular, at massively greater length than it did.

The HRC ordered that Belgium do everything in its power to secure de-listing, and pay compensation to the complainants (para. 12). To end on a miscellaneous point of interest, the HRC rejected the complainants' claim that the action taken by Belgium represented a criminal charge or punishment under Article 14 of the ICCPR (para. 10.11).

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