Canadians Detained Abroad

CCLA welcomes the news that Abousfian Abdelrazik has been de-listed from the UN 1267 listing regime.   At this stage, CCLA is very concerned that Mr. Abdelrazik remained on the list from 2006-2011 and suffered from being publicly and internationally branded as a ‘terror suspect’, on the basis of “secret evidence”, with his assets frozen, unable to receive financial assistance, and his mobility rights severely curtailed.

CCLA has spoken out repeatedly to argue against the UN 1267 listing process because of the unfairness and lack of due process inherent in the UN 1267 listing process, and the devastating consequences for wrongly listed innocent individuals, and their family members.  To read an  earlier CCLA opinion piece on this issue, click here http://ccla.org/2010/06/26/canada-and-un-resolution-1267/ . For further analysis, please read “The UN 1267 Sanctions Regime:  No Due Process”, below.

Currently, Mr. Abdelrazik is suing the Federal Government for its alleged role in his prolonged detention in Sudan. CCLA will keep you posted on this important case.

The UN 1267 Sanctions Regime:  No Due Process
(Originally Published June 2011)

To fight terrorist activities of Al Qaida and the Taliban, the UN Security Council passed Resolution 1267 (1999).  Related resolutions were passed over the next ten years, creating a sanctions regime commonly referred to as UN 1267. Notably, UN 1267 creates sanctions that target individuals.  The sanctions include being publicly “listed”,  being subject to a global travel ban and asset freezes, and being unable to receive funds from any sources including employers and lenders.   But what if a listed person is innocent of any terrorist activity and wrongly listed? What recourse does this person have?

UN 1267 has been criticized internationally for its failure to provide basic due process rights.  People are given no notice before they are listed by the UN 1267 Committee.  Criminal charges or convictions are not a prerequisite to listing.  Individuals do not always know which State listed them, or why.

Without knowing sufficient reasons, how can an individual make an effective defence? And to whom? One Canadian judge (Justice Zinn of the Federal Court), and many international writers, have condemned the UN 1267 regime as being untenable under international law, because of the “denial of legal remedies” and failures of due process, natural justice, and fairness.  In Europe, courts have struck down domestic legislation implementing UN 1267, because of the lack of due process. By Resolution 1904 (2009) the UN 1267 Committee created an  Office of the Ombudsperson, occupied since June 2010 by Canadian Kimberly Prost.   Now, individuals, organizations or groups can submit delisting requests directly to the Ombudsperson.  The Ombudsperson will then investigate by contacting relevant States and other parties, and then issue her recommendations in a report to the UN 1267 Committee. While creation of the Ombudsperson’s office is welcome, it does not go far enough in addressing the inherent flaws of the UN 1267 listing regime.  There is no guarantee the Ombudsperson will receive complete or accurate information from States who support an individual’s listing.  The UN 1267 Committee is not obliged to accept the Ombudsperson’s recommendations.  And refusals of the UN 1267 Committee are not subject to any judicial review process. In other words, a listed individual can still be denied due process and an effective remedy.

Currently one Canadian is on the UN 1267 list, Abousfian Abdelrazik.  Listed in 2006 despite any criminal charge or conviction against him, he has tried for years to be delisted.  A 2007 delisting request submitted by Canada on Mr. Abdelrazik’s behalf, was refused by the UN 1267 Committee without reasons. Though there is speculation, it is uncertain which State requested that Mr. Abdelrazik be listed.  The reasons for his listing are unknown, though he has argued that his listing is based on faulty information procured from torture, contrary to Canadian and international law. Mr. Abdelrazik has filed a delisting application with the Ombudsperson, currently being investigated.  Whatever the recommendations of the Ombudsperson, there is no guarantee the UN 1267 Committee will follow them.

The CCLA is opposed to the current UN 1267 listing process, and any listing process devoid of due process and procedural fairness.  If the UN 1267 regime continues, the CCLA believes there must be key changes.  At a minimum, States who list individuals or seek their continued listing, must provide sufficient reasons, so an individual can provide a proper challenge. Individuals must have effective recourse to remedies, redress, appeal and/or judicial review.  Listing itself must be periodically reviewed so that new exculpatory information or errors in the original listing process can be revealed,.The CCLA agrees with international recommendations that any listing be “preventative and temporary”, and as such agrees with the proposed 36-month sunset clause: i.e. listing would expire in 36 months unless, after an effective review, the UN 1267 Committee decides to continue listing and provides sufficient reasons for this decision, with opportunity for review or appeal.  Finally, individuals should be able to request the Ombudsperson to recommend humanitarian exemptions of the UN 1267 Committee. The CCLA notes that without these amendments, the UN 1267 sanctions regime remains at odds with the foundational principles of the UN Charter –commitment to human rights including fairness and due process.