Chapter 13 Terrorism, targeted economic sanctions and inadequate due process: the case of the Security Council's 1267 sanctions regime

• Date: 08 July 2010
• Pages: 225-241
• DOI: https://doi.org/10.1108/S1572-8323(2010)0000014017
• Published date: 08 July 2010
• Author: Christopher Michaelsen

CHAPTER 13

TERRORISM, TARGETED

ECONOMIC SANCTIONS AND

INADEQUATE DUE PROCESS:

THE CASE OF THE SECURITY

COUNCIL’S 1267 SANCTIONS

REGIME

Christopher Michaelsen

ABSTRACT

Purpose – The chapter seeks to contribute to the discourse concerning

the United Nations Security Council’s role in strengthening a rules-based

international system and maintaining international peace and security

under the rule of law. Its particular purpose is to examine the Security

Council’s Al-Qaida and Taliban sanctions regime (1267 regime) from a

rule of law and due process perspective.

Methodology – To this end, the chapter reviews the 1267 regime’s

controversial listing and de-listing procedure and identif‌ies shortcomings

in relation to traditional due process guarantees. It then discusses reform

options available to the Security Council as far as forms and modalities of

an effective review mechanism are concerned.

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Findings – The chapter has two main f‌indings. First, it concludes that the

‘individualisation’ of Security Council sanctions in terms of targeting

individuals directly has not been accompanied by the creation of a means

for the new targets to appeal the measures imposed on them. Second,

it f‌inds that a lack of political will has so far prevented comprehensive

reform of the 1267 regime but that such reform is becoming increasingly

urgent. The chapter suggests that reform initiatives need to address the

value, effectiveness and sustainability of the 1267 regime more broadly.

The Security Council, in particular, needs to consider what it is prepared

to give up to maintain the 1267 regime as an effective UN sanctions

regime, or whether it is prepared to give up the 1267 regime to maintain

the authority it interprets to have from the UN Charter.

INTRODUCTION

This chapter discusses the increasing use of sanctionssince 1990 to enforce

the United Nations (UN) Security Council decisions and the evolution of

‘smart sanctions’. These sanctions are targeted towards specif‌ically identif‌ied

individuals and other entities in an attempt to avoid devastating effects

on the whole population of targeted states. The chapter also outlines the

development of sanctions under resolution 1267 (1999) which target

terrorism-related activity. These stop supply, sale and transfer of military

equipment and freeze the assets of entities associated with Al-Qaida, Osama

bin Laden and/or the Taliban. The chapter discusses this sanctions regime

from a rule of law and due process perspective, arguing for reform to provide

sanctions targets with appropriate appeals and review mechanisms. This is

becoming urgent to ensure the effectiveness and sustainability of the new

sanctions regime.

The UN Security Council enjoys greater powers under the UN Charter

than any other international organ in history to maintain international

peace and security (Frowein & Kirsch, 2002). Yet, the tools that the Council

has at its disposal are relatively few. The Charter essentially provides for

two kinds of coercive measures (Chapter VII). Article 41 of the Charter

authorises the Council to decide which measures not involving the use of

armed force are to be employed to effect its decisions. Such measures include

‘complete or partial interruption of economic relations and of rail, sea, air,

postal, telegraphic, radio, and other means of communication, and the

severance of diplomatic relations’. On the contrary, the Council can

CHRISTOPHER MICHAELSEN226