A/HRC/16/51
of the listing and delisting process for the Consolidated List.62 Taking the view that the
imposition by the Security Council of sanctions on individuals and entities under the
current system exceeds the powers conferred on the Council under Chapter VII of the
Charter of the United Nations, the Special Rapporteur has called for the replacement of the
current terrorist listing regime under resolution 1267 (1999) with a system whereby the
United Nations and the Security Council would continue to be involved through, inter alia,
assistance and advice, while the actual listing of individuals would be done by Member
States, accompanied by adequate procedural guarantees.63
34.
Some countries also provide mechanisms for the listing of additional groups as
terrorist entities. In a number of these countries, this possibility is correctly restricted to
individuals or entities that have as one of their purposes or activities the facilitating or
carrying out of terrorist acts,64 as properly defined, and is accompanied by the following
safeguards: (a) the need to establish, on reasonable grounds, that the entity has knowingly
carried out or participated in or facilitated a terrorist act; (b) procedures allowing the entity
to apply for removal from such a list, together with rights of appeal or judicial review and
an ability to make a fresh application for removal in the event of a material change of
circumstances or the emergence of new evidence relevant to the listing; (c) periodic review
of the list to determine whether reasonable grounds remain for entities to be listed; and (d)
mechanisms allowing claims of mistaken identity to be dealt with speedily and making
compensation available for persons wrongly affected.65 An individual or entity subject to
designation as terrorist, whether as a result of listing on the Consolidated List of the United
Nations or through a domestic procedure for similar listing, must be informed of that fact
and of the measures taken as a consequence of listing, and is entitled to know the case
against him, her or it, and be able to be heard within a reasonable time by the relevant
decision-making body.66
35.
The Special Rapporteur identifies the elements below of a best practice concerning
the listing of terrorist entities:
Practice 9. Core elements of best practice in the listing of terrorist entities
Irrespective of the continued existence of the practice of the Security Council to list
individuals or entities as terrorist, the implementation of any sanctions against individuals
or entities listed as terrorist shall comply with the following minimum safeguards:
1.
Sanctions against the individual or entity are based on reasonable grounds to
believe that the individual or entity has knowingly carried out, participated in or facilitated
a terrorist act (as properly defined pursuant to practice 7 above);
2.
The listed individual or entity is promptly informed of the listing and its
factual grounds, the consequences of such listing and the matters in items 3 to 6 below;
3.
The listed individual or entity has the right to apply for de-listing or nonimplementation of the sanctions, and has a right to court review of the decision resulting
62
63
64
65
66
-
A/65/258, paras. 55-58. See also Kadi v European Commission (No 2), case T85-09, 30 September
2010.
A/65/258, paras. 70 and 75(b).
Australia, Criminal Code Act 1985, sect. 102.1(1); Canada, Criminal Code 1985, sect. 83.05(1). CF.
the designation of organizations using the much vaguer notion of organizations “concerned with”
terrorism under section 3(4) of the Terrorism Act 2000 of the United Kingdom.
Australia, Charter of the United Nations Act, 1945, sect. 25; Belgium, arrêté royale du 28 décembre
2006; Canada, Criminal Code 1985, sects. 83.05 and 83.07. See also the questionnaire response
submitted by Canada.
See A/HRC/4/88, paras. 17-22, A/HRC/4/26/Add.2, para. 90 (e), and A/63/223, paras. 16 and 45 (a).
17
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