Human Rights Consequences of the Terrorist Blacklists: Significance of Jose Maria Sison's Case

Atty. Jayson S. Lamchek,
Public Interest Law Center
October 14, 2003

Submission of the Public Interest Law Center (PILC) to the House Sub-Committee on Migrant Workers and Other Overseas Filipinos in relation to the October 14, 2003 hearing on Resolution No. 850 sponsored by Bayan Muna Party-List Representatives Ocampo, Beltran and Maza

Honorable Chair and Members of the Sub-Committee,

The Public Interest Law Center (PILC) would like to bring to the attention of the Sub-Committee the human rights aspects of the terrorist listing of Prof. Jose Maria Sison. The PILC, alongside other human rights lawyers in Europe and the United States, has taken interest in Prof. Sison's legal battle to have himself removed from the terrorist blacklists maintained by the Council of the European Union, the United States and other countries largely because of its significance to international law and human rights.

Prof. Sison's case subjects to scrutiny the entire legal infrastructure, only fairly recently erected and fully utilized after the September 11, 2001 attacks, which allows certain states, in the name of counter-terrorism, to subject individuals and entities to drastic punitive measures through the convenient device of designating such individuals and entities in a blacklist, avoiding the observance of the usual judicial standards of fair play and due process. Such terrorist blacklists are now under attack by human rights lawyers, scholars and activists from all over the world.

I propose that the Sub-Committee consider the legal origins of the following terrorist blacklists:

Two U.S. blacklists: (a) of foreign terrorist organizations (FTOs) and; (2) of specially designated global terrorists (SDGTs) which also include individuals;
The so-called United Nations "consolidated list" of individuals and entities linked to the Taliban and al-Qaeda;
The lists maintained by the Council of the European Union: (a) of bin-Laden linked persons; and (b) of terrorists in general.

The United States lists

List of FTOs

The blacklisting of "terrorists"^[1] began with the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996, an American legislation that was passed as a reaction to the Oklahoma City bombing of 1995.^[2] The AEDPA empowered the US Secretary of State to designate any entity in a list of foreign terrorist organizations (FTOs) defined, as (1) any foreign organization (2) that engages in any terrorist activity (3) where such activity threatens the security of U.S. nationals or the national security of the United States. "National security" is defined as "the national defense, foreign relations, or economic interests of the United States." (AEDPA, Section 302(a))

The Communist Party of the Philippines/New People's Army was designated as an FTO by Sec. Collin Powell on August 9, 2002. The only other designated Philippine entity is the Abu Sayyaf bandit group.

Once an organization is designated as an FTO, the following legal consequences arise:

the funds and assets of these organizations shall be seized;
the provision of "material support or resources" by any person to that organization becomes a criminal offense; ^[3] and
the designated organization may not contest the "terrorist" label in any forum in the US unless it obtains a delisting by filing an appeal with the US Court of Appeals for the District of Colombia within 30 days from publication of its designation in the Federal Register.

Appeals for delisting have been brought by designated groups before the US Court of Appeals for the District of Colombia on the ground, among others, that due process has not been observed when the Secretary of State made the designation. The leading cases on the matter, People's Mojahedin Organization of Iran vs. Albright and Liberation Tigers of Tamil Eelam vs. Department of State jointly decided on June 25, 1999 show that the US court does not provide any meaningful judicial review of the blacklisting process if only to vindicate the interests of fair play and due process.

In the said cases, the US Court of Appeals held that, in the first place:

"A foreign entity without property or presence in this country (US) has no constitutional rights, under the due process clause or otherwise."

Secondly, the court emphasized:

"Of the three findings mandated [by law for], the third � '(c) the terrorist activity of the organization threatens the national security of the US'� is non-justiciable. [I]t is beyond the judicial function for a court to review foreign policy decisions of the Executive Branch."

On the basis relied upon by the Secretary of State in designating the said organization, the court remarked:

"[T]he records consists entirely of hearsay, none of it was ever subjected to adversary testing, and there was no opportunity for counter-evidence by the organizations affected. [However,] [a]s we see it, our only function is to decide if the Secretary, on the face of things, has enough information before her�Her conclusion might be mistaken, but that depends on the quality of the information in the reports she received�something we have no way of judging."

OFAC list

Individuals are also listed in a blacklist of Specially Designated Global Terrorists (SDGTs) maintained by the US Treasury Department's Office of Foreign Assets Control (OFAC) which implements provisions of various laws including the AEDPA that concerns financial institutions.

Section 302 of the AEDPA requires financial institutions to block all funds in which FTOs or their agents have an interest. (Section 302, AEDPA) Executive Order No. 13224 blocks property and prohibit transactions with individuals or entities "who commit, threaten to commit, or support terrorism".^[4] Implicit, therefore, in the designation of Prof. Sison in this list is a conclusion by the designating authority that he is an "agent" of an FTO or one who commits, threatens to commit or supports terrorism.

Under the said executive order, the designating authority is the US Secretary of State and, in certain cases, the US Secretary of the Treasury. In Section 1(d) of E.O. 13224, provision is made for the designation of an individual as a terrorist by the US Secretary of State in consultation with friendly foreign governments.

Prof. Sison appears in the OFAC list together with a host of some 300 individuals and entities. Included in the OFAC list are various sorts of organizations. Not only political organizations and armed groups are listed, but also banks and financial intermediaries, aid and charitable organizations, telephone companies, internet and computer companies, construction firms, as well as a bakery (viz., the al-Hamati Sweets Bakeries of Yemen).

The United Nations list

As you know, there is still no universally agreed upon, or at least, UN-endorsed, definition of the "international crime" of "terrorism". UN member-states still debate, for example, on whether to include or exclude "national liberation movements" within the scope of the term "terrorism". ^[5] Moreover, the reality of "state terrorism" also underscores the obvious double standard inherent in any definition that automatically excludes states from its coverage.

Notwithstanding the lack of a conventional definition, certain states proceed to identify certain individuals and groups as exemplifying "terrorism", cloaking the political motivation for their actions with the dubious authority of so-called international experts and the alleged imprimatur of the United Nations.

Contrary to popular beliefs, the United Nations does not maintain a general list of terrorists in the same manner as the United States government. What is referred to as the UN "consolidated list" is a list of individuals and entities who belong to or are associated with the Taliban government and the al-Qaeda organization of Osama bin Laden. The list is drawn up by a committee set up under Security Council Resolution No. 1267 adopted prior to the September 11, 2001 attacks which imposes economic sanctions on the Taliban government of Afghanistan for failing to surrender Osama bin Laden who is facing indictments in the United States. The sanctions committee set up under Resolution No. 1267 was mandated by the Security Council under Resolution 1333 to identify individuals and entities who belong to or are associated with the Taliban government and the al-Qaeda so that "targeted sanctions" (as opposed to "blunt sanctions" applied to the Taliban government itself and are admittedly harming the civilian population more than the government) may be applied against these individuals and entities directly.

The sanctions committee is a body composed of 15 members who represent the 15 members of the Security Council. The body decides by consensus and refers disagreement to the Security Council that ultimately controls its decision.

Prof. Sison does not appear in this UN consolidated list. An individual or entity is placed in the UN list only by virtue of an alleged link with bin Laden or Al Qaeda. This limitation, however, has not prevented states from instituting counter-terrorist measures directed at suppressing dissident organizations and individuals on the basis of the most tenuous alleged links to bin Laden and Al-Qaeda. [6]

By virtue of Res. 1267, 1333 and subsequent resolutions related thereto, member states of the UN are required to freeze funds and other financial resources and assets of the individuals and entities listed by the sanctions committee formed under Res. 1267. Member states are obliged to ensure that no such frozen funds or assets are made available to or for the benefit of such listed persons as well as any entities owned or controlled, directly or indirectly by such listed persons. Lastly, member states are called upon "to bring proceedings against persons and entities within their jurisdiction that violate the measures imposed xxx and to impose appropriate penalties."

The European Union lists

Although the United Nations Security Council only requires "targeted sanctions" to be imposed by member states on bin Laden-linked individuals and entities listed in the UN consolidated list, the Council of the European Union imposes restrictive measures upon two sets of persons, viz., (1) bin laden-linked individuals and entities and (2) terrorists in general, and claim that sanctions against both are justified by the command of the United Nations Security Council.

Consequently, the Council of the EU maintains two blacklists covered by two separate Common Positions. ^[7]

The imposition of restrictive measures upon individuals and entities who are not linked to the al-Qaeda and the Taliban are ostensibly for the purpose of combating terrorism, and in particular, the financing of terrorism. "To combat terrorist financing" is chief among a host of broadly-worded obligations ^[8] imposed by the Security Council upon member states under Resolution 1373, adopted in the wake of the September 11, 2001 attacks and which declared "terrorism" a threat to international peace and security.

Significantly, while the obligation to prosecute terrorists is explicitly mandated under Resolution 1373, blacklisting as observed in the anti-terrorist legislation of the United States is not specifically prescribed. Also, in contrast to the committee formed under Resolution 1267, the Counter-Terrorism Committee formed under Resolution 1373 to monitor member states' compliance with Resolution 1373 is not a sanctions committee and does not maintain a terrorist blacklist.

Prof. Sison's case in the European Court

Prof. Sison's situation illustrates the excesses to which the device of blacklisting (in order to undertake the obligation to combat terrorist financing) can go.

As a consequence of his listing, and ostensibly in order to combat terrorist financing, the Council of the EU needed to freeze the bank account of Prof. Sison jointly held with his wife consisting of the amounts received as social benefits totalling only 1,145.46 euroes or approximately P50,000.00. The Council needed to stop payments for his health insurance and third party liability insurance as well as payments for his house rent resulting in his receiving repeated notices to vacate his residence. It is hardly believable that the goal proclaimed by the Council of the EU for terrorist blacklisting (i.e., to combat terrorist financing) applies to Prof. Sison and yet Sison is in the list.

It is significant to take note that by virtue of the peculiar legal situation of Prof. Sison in the Netherlands, Prof. Sison is not allowed by the Dutch government to seek employment in the Netherlands. The immediate effect of his being listed is to deprive him of all legal means to subsist. Thus, it is argued that his listing is calculated to deprive him of his basic right to life, a right that is non-derogable and may not be suspended by states under all circumstances.

Immediately upon his designation, Prof. Sison has applied to have access to the evidence used against him by the designating authority. His requests have been repeatedly denied and the Council has claimed that the evidence used against Prof. Sison are confidential and secret information which they intend not to disclose.

Prof. Sison has instituted action against the Council of the European Union before the Court of Justice of the European Communities based in Luxemborg to have himself delisted. To my understanding, this is the first such challenge brought by an individual against the general blacklist of the EU. Prof. Sison's arguments involving the failure of the designating authority to accord due process to him before punitive measures are imposed upon him echo the arguments raised by the petitioners in the US Court of Appeals in the People's Mojahedin and Tamil Tigers case, and a number of cases arising from the "targeted sanctions" imposed by the Security Council under Res. 1333.

The Council of the European Union urges that a distinction be made between the effects of blacklisting and those of a criminal conviction. If this distinction is granted--the Council argues--then the due process rights applicable to persons accused of a crime need not be observed when designating persons in the blacklist. In other words, it is urged that Prof. Sison cannot invoke the due process rights of the accused because he is not accused of terrorism or of any crime, he is "simply" blacklisted.

Ironically, if the Council's arguments are accepted, then the situation of a person who is supposedly "merely listed" and not yet accused would in fact be worse than a person accused of the crime of terrorism. At least, the accused still has the right to an impartial tribunal or court. The blacklisted person is judged by executive ministers, not judges, who decide on the basis not of evidence and law but of political (foreign policy) considerations. At least the accused still has the right to examine the evidence and cross-examine the witnesses used against him, and to confront his accusers. The blacklisted person is designated on the basis of secret files, if any, and his accusers' identities are undisclosed. At least the accused has the right to present evidence in his defense. The blacklisted person such as Prof. Sison, subjected to a virtual death sentence, is judged before he is heard.

The European court, which is considering the case of Prof. Sison has a choice of replicating or repudiating in Europe the "American solution" adopted in the People's Mojahedin and Tamil Tigers cases.

Reaction to Secretary Ople

In conclusion and by way of summary, allow me to comment on Secretary Blas Ople's statement regarding Prof. Sison's bid to delist himself. Secretary Ople said:

"It is by his own actions that Mr. Sison has been labeled a terrorist. The international community has examined Mr. Sison's actions, shifted through the political rhetoric, and made an objective determination. But I think that there is a chance that Mr. Sison could be delisted as a terrorist. But that will be entirely up to Mr. Sison."

The factual basis for designating Prof. Sison in the blacklists of the EU and the US has not been divulged to Prof. Sison or to the public as of yet. The "international community" is not involved in the designation of Prof. Sison in the EU's and US' blacklists. An objective determination of the accusations against Prof. Sison can hardly be made by executive officials who are motivated by diplomatic and political considerations. The universally recognized due process rights of Prof. Sison, the only Filipino subjected to such draconian measures by virtue of his designation in the blacklists, must be upheld and it behooves all human rights advocates to support his cause.

Thank you.

[1]I.e., broadly defined. There is an earlier US blacklist specific to "terrorists who disrupt the Middle East peace process". There is also a blacklist of foreign governments "supporting terrorism" and other specific lists. (See the website of OFAC, citation.)
[2]Pub L. No. 104-132 (1996). Ironically, despite the fact that the bombing was committed by American citizens, the AEDPA is largely directed at the problems of "alien terrorists" and "foreign terrorist organizations."
[3]The maximum penalty is ten years imprisonment. (AEDPA, Section 303(a)) "Material support or resources" is defined as "currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials." (AEDPA, Section 303(a)).
[4]Sec. 3 provides: "Sec. 3. For the purpose of this order: xxx (d) the term 'terrorism' means an activity that �
(i) involves a violent act or an act dangerous to human life, property, or infrastructure; and
(ii) appears to be intended �
(A) to intimidate or coerce a civilian population
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by mass destruction, assassination, kidnapping, or hostage-taking."

[5]Since the 1960s, the United Nations General Assembly has consistently recognized that national liberation movements may legitimately make use of all necessary means, including armed struggle, in pursuit of the right to self-determination of peoples. National liberation movements have status, rights and obligations under international law.
[6]E.g., at the request of China, the 1267 Committee listed the Eastern Turkestan Islamic Movement on the basis of Chinese allegation that the self-determination movement in Eastern Turkestan "had been receiving funding by the Taliban and Al-Qaeda, and those forces were creating terrorist incidents in China and elsewhere."
[7]For the bin Laden-linked list, see Council Common Position 2001/154/CFSP of February 26, 2001 which refers to UNSC Res. 1333 (2000)). Council Regulation (EC) No. 1935/2002 adds Jemaah Islamiya to this list. For the general terrorist blacklist, see Council Common Position No. 2001/931/CFSP of December 27, 2001 on the application of specific measures to combat terrorism, updated by Council Common Position No. 2002/976/CFSP of December 12, 2002 updating Council Common Position 2001/931/CFSP, and also Council Regulation (EC) No. 2580/2001 of December 27, 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ, no. L 344 of 28/12/2001, p. 70-75). The New People's Army and Prof. Sison were added to the list by virtue of Council Decision 2002/848/EC of October 28, 2002 (fourth list implementing Regulation 2580/2001). The latest updated list in which the NPA and Sison still appear is contained in Council Decision 2002/974/EC of December 12, 2002.
[8]Other obligations include: to deny free passage to terrorists through one's territory, to deprive terrorists of safe haven in one's territory, and to bring terrorists to justice.

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