http://www.nytimes.com/2010/06/13/world/asia/13afghan.html?scp=1&sq=u.n.%20terror%20list&st=cse
June 12, 2010
United Nations Could Hasten Removal of Taliban Leaders From Terror Blacklist
By ROD NORDLAND
KABUL, Afghanistan — The United Nations is speeding up efforts that could lead to the removal of Taliban leaders from an international terrorist blacklist, the top United Nations official here said Saturday.
At a news conference, the official, Staffan de Mistura, the secretary general’s special representative to Afghanistan, said the United Nations was responding to the call of Afghanistan’s recent consultative peace gathering, called a jirga, to de-list Taliban figures.
A four-member delegation from the Security Council’s Al Qaeda and Taliban Sanctions Committee is in Kabul on a three-day visit to study the composition of the terrorist blacklist and make recommendations to the Security Council about possible changes, he said. “I am personally delighted that the timing of the visit coincided, quote unquote, with the follow-up to the peace jirga,” Mr. de Mistura said, adding that it was an important part of building momentum toward peace talks.
Since 1999, Security Council Resolution 1267 has blacklisted 142 Taliban figures as well as 360 others with ties to Al Qaeda, ordering their bank accounts seized and prohibiting them from crossing international borders. The presence of Taliban leaders on the list has been a sticking point in efforts to start peace negotiations with them, but attempts to remove any have foundered because of opposition from Security Council members.
In January, five Taliban insurgents were de-listed before the London Conference on Afghanistan, leaving 137 still blacklisted.
Since January, President Hamid Karzai has been arguing to remove all Taliban names from the blacklist. After the peace jirga made a similar call when it concluded June 4, the jirga chairman, Burhanuddin Rabbani, said bluntly, “Each party to the conflict will be taken on board in the process, and there will be no more blacklists.”
Mr. de Mistura said the blacklist committee was to make its recommendations to the Security Council by the end of June. He said there might be a slight delay “in view of the extremely complex situation and highly timely nature of their visit.”
Mr. de Mistura said the committee’s work was aimed at “updating” the list. “Updating means taking on or taking off,” he said, adding that ultimately the Security Council would decide. “The fact that this is taking place so soon after the peace jirga and so soon after the appeal to look at the contents of this list is a sign of proactivity which we welcome,” he said. “If we want the peace jirga to produce results, we need to keep momentum.”
American officials have argued for removal from the blacklist on a case-by-case basis; Russia and China have objected as well to a broad de-listing of the Taliban. Now, a United Nations official who spoke on condition of anonymity because of diplomatic sensitivities said there was a real possibility of removing at least a large portion of the Taliban names. Most of them are former Taliban government ministers and other political figures, rather than military commanders.
Although Security Council members could veto any proposal to de-list Taliban leaders, the United Nations official said their opposition was not as hard and fast as it had been. “The Americans would certainly oppose some of the big names,” he said.
Mr. Karzai has suggested that de-listing should include even the Taliban leader, Mullah Muhammad Omar and the warlord Gulbuddin Hekmatyar.
Mr. de Mistura also expressed support for Afghan efforts to establish guidelines for speedily releasing insurgents from detention in cases in which they had not been charged with any crimes, another request made by the jirga. Many such prisoners are still in United States military custody here, although talks have been under way to transfer control of them to Afghanistan.
Mr. Karzai’s support for the rapid release of detained insurgents was one issue believed underlying his abrupt decision last week to dismiss his interior minister and the head of the Afghan intelligence service, both of whom opposed indiscriminate prisoner releases.
The United States ambassador, Karl W. Eikenberry, speaking to Afghan journalists on June 5, the day after the jirga ended, did not indicate any change of United States policy toward the blacklist.
“Consideration on a case-by-case basis by anybody that your government puts forward will certainly be given, as we demonstrated in advance of the London Conference,” Mr. Eikenberry said.
While Mr. de Mistura praised the jirga as “a step forward in the right direction,” many critics said that it comprised mainly Karzai supporters who were not representative of the country at large, and that it did not include insurgents. The Taliban also denounced the event, repeating their stance that no peace negotiations could begin until foreign troops had left Afghanistan.
In other developments in Afghanistan on Saturday, Taliban insurgents killed eight Afghan policemen in two attacks in Kandahar Province in the south and one in eastern Khost Province.
Also on Saturday, according to news releases from the International Security Assistance Force, one coalition soldier was killed by a roadside bomb in eastern Afghanistan and a second was killed in an insurgent attack. No other details were released.
Poland Seeks End to Mission
WARSAW (Reuters) — Poland will press its NATO allies to draw up plans to end the mission in Afghanistan as soon as possible, Prime Minister Donald Tusk said Saturday.
Poland has 2,600 soldiers in NATO’s Afghan mission. Public support for the deployment has eroded because of the deaths of Polish soldiers and a resurgence of the Taliban. A 17th Polish soldier was killed there on Saturday.
“Poland will push its NATO allies at a meeting in Lisbon to jointly come up with a relatively quick and precise plan for ending this intervention,” Mr. Tusk said.
Afghan employees of The New York Times contributed reporting from Khost and Kandahar, Afghanistan.
==== === == == == == == == == = = = =
A path to fairness in the operation of the Security Council's "terrorist blacklist"
Posted: 16 Jun 2010 09:40 AM PDT
In 2001 the name of one Yassin Abdullah Kadi, a Saudi Arabian businessman, was added to the United Nations' Consolidated List, also known as the “terrorist blacklist.” However, unlike the 
hundreds of other names on the list, Yassin Abdullah Kadi successfully challenged his inclusion in a European court (ECJ). The European Court of Justice (right) held in 2008 that the due process violations surrounding Kadi’s inclusion on the list were contrary to the constitutional guarantees of the European Community treaty and annulled the EU regulation which implemented the UN-imposed blacklist. (Prior IntLawGrrls post.) The Kadi ruling potentially placed the EU in breach of international law and sparked a firestorm of debates as to when a domestic or regional court should violate international law for human rights considerations.
The UN blacklist was established in 1999 by Security Council Resolution 1267. That resolution also imposed upon every UN member state the obligation of placing individual sanctions (in the form of asset freezes and travel bans) on the persons and groups added to the newly-created blacklist. Resolution 1267 did not provide safeguards for ensuring that an individual was properly included, nor did it allow those listed to challenge their inclusion.
In thus making individuals rather than states the target of UN resolutions, the Security Council (below right) found itself heavily criticized by commentators and courts alike for depriving individuals of their due process rights. Only since the ECJ's Kadi decision, however, has this criticism solidified into a concrete threat to the Council's ability to coordinate a unified anti-terrorism regime. If domestic and regional courts remain unwilling to enforce Security Council resolutions, the security framework may fall apart.
To the Council's great credit, it has not been deaf to the critique of the 1267 regime. To the contrary, subsequent resolutions improved listing procedures and granted individuals the right 
to personally request delisting. Last December, the Council even adoptedResolution 1904, which established a temporary Office of the Ombudsperson, a position filled this month by Canadian Judge Kimberly Prost (left), who's been an ad litem judge at the International Criminal Tribunal for the former Yugoslavia. (Prior IntLawGrrls post.) The Ombudsperson is responsible for ensuring that an individual could bring a delisting request, and remain appraised of its status.
Unfortunately, problems persist. For example:
► Individuals still cannot participate in presenting their own case, are not privy to the evidence against them, and have no assurance of impartial decision-making.
► Post-Resolution 1904, courts have continued to quash the regulations which implement the terrorist blacklist while citing due process concerns.
It is clear that the Security Council hasn’t gone far enough in acknowledging the world’s concerns.
Of course, guaranteeing respect for due process isn’t the only responsibility the Council must juggle when considering the 1267 regime; it must also ensure that it creates an effective antiterrorism regime and that it safeguards its own position as the primary guardian of international security. Thus, while many of the suggestions for the 1267 regime which have been tossed out over the past 11 years might solve the due process issue -- e.g., leaving initial listing decisions entirely in the hands of member states, or allowing state judicial review of UN listings -- these remedial mechanisms simply do not address the Council’s other fundamental concerns.
There is one suggestion which, while not perfect, does a fairly good job of balancing due process, security, and Security Council primacy concerns.
The Council should create an internal court which is open only to listed individuals -- not sanctioned states -- and which has the power to issue binding delisting orders. The judges on the court must be independent decision-makers with a specialty in handling sensitive intelligence.
If domestic and regional courts are able to look to the United Nations and see that the listed individuals have their due process concerns met there, such courts will no longer feel the need to take matters into their own hands by annulling the domestic implementing regulations.
==
(Delighted to welcome back alumna Kate Barth, who's just graduated magna cum laude from Penn Law, is studying for the bar, and is set to become an associate at the New York office of Allen & Overy this fall. Treating an international mechanism discussed in this news article, Kate's guest post today is based on her "When Due Process Concerns Become Dangerous: The Security Council’s 1267 Regime and the Need for Reform", which she and co-author Jared Genser just published in the Boston College International and Comparative Law Review)
