Mission Possible: How Intelligence Evidence Rules Can Save UN Terrorist Sanctions

By Vanessa Baehr-Jones —

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In this Article, Vanessa Baehr-Jones addresses the familiar tension between due process and the prosecution of counterterrorism operations, but does so through the less familiar context of UN Security Council Resolution (UNSCR) 1267, which targets terrorist financing.  In the wake of the expanded employment of UNSCR 1267 asset freezes, a growing number of appeals have challenged the legality of these sanctions on the basis that they fail to provide judicial review or a right to a hearing.  This litigation has resulted in findings from both the European Court of Justice and the UN Human Rights Committee that the imposition of UNSCR 1267-mandated asset freezes without a hearing, proper defense, or judicial review violated the fundamental rights of persons targeted.  This Article suggests that the criticisms of these findings are unwarranted, as they ignore the substantive concerns raised by those decisions.  Instead, the Article directly examines the due process concerns raised in terrorism designation cases and, ultimately, demonstrates that the fundamental problem preventing adequate due process in 1267 cases is the use of secret intelligence evidence.  In light of this conclusion, the author proposes the creation of an international standard for due process involving secret intelligence evidence modeled on the jurisprudence of currently established international criminal courts.  These mechanisms for review of secret intelligence evidence, Baehr-Jones posits, will enable the UN to create judicial review at the international level, thus addressing the tension between due process problems of UNSCR 1267 and the need to support international efforts to combat terrorism.

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