Under the Charter of United Nations, the Security Council has primary responsibility for the maintenance of International peace and security, as one of the six principal organs of the United Nations. In 1999, after the attack on U.S embassies in Nairobi and Darussalam by Usama bin Laden and his associates, United Nations Security Council passed a resolutions known as “Resolution 1267” or “1267 Regime” under Article 41 of the UN which states:
“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may 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.”
These sanctions were implemented by the member states of the United Nations according to the charter of the U.N. Initially, these sanctions were imposed on the Taliban Government that was ruling Afghanistan at that time, as the Taliban government was accused of providing a safe haven to Usama bin Laden and his associates. All the member states of the UN were directed to freeze the assets of Taliban, and a sanctions committee known as “1267 Committee” was established to ensure the implementation of these sanctions.
In December 2000, Security Council expanded these sanctions by passing Resolution 1333, that recommended sanctions on Usama bin Laden and other individuals associated with Al-Qaeda. For the first time, a list known as the “1267 List” was established that includes individuals and entities subjected to the 1267 sanctions. Later some other sanctions were also included in the sanctions list in addition to the asset freeze, International travel and arms embargo on the individuals and entities on the 1267 list, which was imposed by resolution 1390.
Due to procedural flaws, SCR (Security Council Resolution) 1267 had been criticized around the world including the United Nation’s own experts. Governments of different States and International courts have also pointed out the procedural imperfection in SCR 1267.
Flaws in SCR 1267 includes, nominal protections in the due process for individuals and entities on the 1267 list, there is no option of judicial review of the United Nation’s decision to list or its refusal to delist, no requirement of the fact that the full reasons for the listing will ever be disclosed to the individual or entity, there is no right of knowing the identity of the State seeking the listing and the paucity of the information provided to those listed stands a stark contrast to the burdens placed on them as a result of their listing.
Due to all these inadequacies, SCR 1267 is not only dubious of procedural fairness but it also violates the human rights, property rights and free movements of the individual.
In September 2005, United Nations General Assembly put emphasis on Security Council to ensure the existence of fair and clear procedures for placing individuals and entities on sanctions list by passing a resolution.
BardoFassbender, a professor of law at the Institute of International and European Law, Humboldt University, Berlin, was commissioned by the UN office of Legal Affairs to undertake a study on the legality of the Security Council’s Sanctions Regime. Fassbender’s report, “Targeted Sanctions and Due Process” concluded that the human rights and fundamental freedom of targeted individuals should be respected to the greatest possible extent. According to Fassbender, for due process, rights should be respected and the individuals on the 1267 list must be afforded access to an effective remedy before an impartial institution, since the 1267 Committee is not independent.
In January 2008, similar kind of concerns had been shown by the Parliamentary Assembly for the Council of Europe, by criticizing the 1267 Regime and its implementation. The council issued a resolution (Resolution 1597), saying that the Parliamentary Assembly found the 1267 Regime to “violate the fundamental principles of human rights and the rule of law”.
In December 2008, Thomas Hammarberg, the Commissioner of Human Rights for the Council of Europe, criticized the blacklisting of individuals and entities by remarking, that blacklisting is indeed a striking illustration of how human rights principals have been ignored in the fight against terrorism.
In March 2010, Switzerland’s parliament approved a resolution known as the “Swiss Resolution”, disapproving of the 1267 Regime. The Swiss Government informed the United Nations Security Council that the Swiss Government will not apply the sanctions required under the 1267 Regime against the individuals who have not been brought to justice after three years of being placed on the 1267 list; who do not have the right of judicial review of their listing; who have not been charged by any judicial authority, and against whom no new evidence has been produced since being included on the list.
Despite these entire objection on SCR 1267, it is still unclear whether these sanctions have affected entities like Al-Qaida or not, but they definitely have ruined the peaceful lives of some individuals that have been blacklisted by the 1267 List. AbousufianAbdelrazik, Youssef Moustafa Nada and Hafiz Muhammad Saeed are the few examples of the individuals victimized by SCR 1267.
In 2003, AbousufianAbdelrazik, a Canadian citizen was arrested in Sudan while he was visiting his mother in Khartoum as he had been added to the United Nations Consolidated List of Individuals and entities. For 20 months he was kept behind bars in Sudan, interrogated and tortured but was never charged. Despite being cleared by Canadian Security Intelligence Service (CSIS) and Royal Canadian Mounted Police (RCMP), of involvement in any terrorist activity, he was stranded for six years in Sudan after being placed on the 1267 list. In Nov 2011, his name was delisted from 1267, after being cleared by the United Nations Security Council. Nonetheless, SCR 1267 wasted 8 precious years of his life and many more to come when he faces the society, having the label of “TERRORIST” pasted by the United Nations Security Council on his forehead, only because of some doubts on his activities.
Hafiz Muhammad Saeed &Jumaat-ud-Dawa (JuD) also came under the radar of Security Council and both were placed on the 1267 list just because India and the United States of America “thinks” that the entity (JuD) and the individual (Hafiz Muhammad Saeed) have been involved in terrorist activities without having any evidence against their claim. Even before the Mumbai Attacks in 2006 and 2008, United State had twice attempted to add JuD in the 1267 List, but on both occasions China put the proposal on “technical hold” because of lack of evidence against JuD and demanded more evidence against the group and individuals.
Because of the Indian cries of woe, from day one of the Mumbai attacks against Hafiz Muhammad Saeed and JuD, both were added to the UNSC’s consolidated list when China lifted its hold. After the entry of JuD chief’s name in the UN Resolution 1267 list, the then Pakistani Government took action against JuD which resulted in sealing of its over 100 offices throughout the country, detention of over 50 leaders and putting the names of its 11 leaders on the Exit Control List (ECL).
Two cases were launched against JuD, Hafiz Saeed and others, in which they were charged with planning, financing and executing the attacks in India’s financial capital that killed 166 people in November, 2008 but in both the cases, the prosecutors were unable to produce any evidence against them. Pakistan has repeatedly called both India and the USA to provide evidence in order to prosecute Hafiz Saeed but no concrete evidence has been provided against Hafiz Saeed till day.
Due to lack of evidence against Hafiz Saeed, in June-2009, the three judge panel of Lahore High Court ordered the release of Jamaat-ud-Dawa leader Hafiz Saeed, who had been placed under house arrest after the Mumbai attacks. The court also notified that Jamaat-ud-Dawa is not a banned organization and could work freely in Pakistan. India has provided Pakistan several dossiers with evidence against Saeed and other members of the LeT and JuD but the courts cannot accept the evidence because dossiers are not admissible in a court of law. Dossiers are just information, not evidence.
Recently Pakistani High Commissioner to India Abdul Basit further cleared that Hafiz Saeed is free to roam in the country because courts have already exonerated him and there is no case pending against him.
The United Nations Security Council Resolution 1267 had been approved and implemented in the member States in 1999 but imposition on these sanctions were not able to restrict or stop any terrorist organization from their activities. Resolution 1267 was passed to combat terrorism and control organizations like Taliban and Al-Qaeda but today both of these are stronger than what they were in 1999. In fact a number of other organizations like ISIS surfaced and announced their independent state, which is directly controlled by them. The birth of new organizations like ISIS is clear evidence that UNSC’s resolution was unable to combat terrorism as it was expected but it has definitely violated the human rights and ruined the lives of several other individuals.
Guantanamo Bay Prison, Guantanamo/Abu Gharaib torture cells, resolutions like 1267 and drone attacks by the US and NATO have raised serious questions on the role of permanent members of the UN/Security Council especially, the United States. On one hand, the UN and the US applies different kind of sanctions on the countries in which human rights are violated but on the other hand they them-self are violating human rights and nothing has been done against them. In order to maintain its own authority, the Security Council needs to bring the 1267 Regime into conformity with fundamental principles of justice and fairness. As a part of the UN, member States expect transparency from the Security Council. With such dubious regimes like the 1267, the Security Council may lose its credibility among the member States that have vigorously criticized it and which could lead the world towards bigger problems than terrorism.
Discuss this topic on Defence.pk