How come you are on the terrorist list? And how come you are there? Six points.English Translation of "Vanaf nu bent u 'terrorist'"
Front Page Article in NRC Handelsblad
by Joop Meijnen
February 01, 2007
Imagine this. One day you find out that you can't use your ATM-card in the supermarket because it is blocked. Later you are also told that you are no longer entitled to your welfare allowance and that you have to vacate your rented house. You have no idea what is happening.
Josť Maria Sison has experienced all this. On Tuesday 13 August 2002. And to this day the 68-year-old Filipino political activist, who fled to the Netherlands 20 years ago, is still at a loss about how and why this came about.
At the office of the Philippine opposition in Utrecht, he apologizes with a friendly smile. "You don't see it perhaps, but I have been humiliated. They have robbed me of my dignity. I have been consigned to a civil death. And I am not even allowed to know why."
"They", I mean the United States and the European Union, branded Sison as "terrorist", by including him that August month on their so-called "public sanction lists". On the list are names of persons and organisations suspected of terrorism or having contacts with terrorists.
Sanctions in this case mean government-imposed financial isolation: no bank transactions, no bank cards, no insurance, no travel papers. "All of a sudden, I was rendered penniless, homeless, and deprived of my freedom of movement," says Sison.
For the last four-and-a-half years already, Sison, who describes himself as a Marxist, has been fighting against "civil death". The European Court of Justice in Luxembourg is deciding today if he can obtain access to the secret documents that were used as basis for his inclusion on the European sanction list.
The chance that Sison gets that access is minimal. The court has often ruled in the past that information held by secret services in this type of cases may remain secret. This is an issue of giving more weight to public interest.
But that is the side issue. The main issue, however, is whether Sison's inclusion on the European sanction list followed the correct procedure. Or whether the Netherlands and the European Union made a mistake. It is on this that the European Court will decide shortly.
What is a sanction list?
Sanction lists for terror suspects are a relatively new phenomenon. The United Nations Security Council laid the basis for this in 1999 through resolution 1267, which obliged all UN members to freeze all financial dealings of the Afghan Taliban regime and to impose travel restrictions on its members. Later the Al-Qaida network of Osama bin Laden was added to the list. And after the 11 September 2001 attacks on the US the sanctions were given more teeth and scope.
After 9/11 the countries of the European Union decided jointly to issue a supplementary sanction list, with persons and organizations whose objectives are deemed suspect.
The first European list dates back to 27 December 2001. On 28 December 2006, the Hofstad Group and the nine convicted members of the group under the leadership of Mohammed B., the assassin of Theo van Gogh, were added to the EU list.
Does a sanction list make sense?
Nobody disputes the importance of financial sanctions as a component of the war against terror. Terrorism costs money and if the flow of money can be stopped, terrorism will decrease, so goes the reasoning.
But there is no guarantee for success. "Are we now going to discover the local butcher who exports large sums to (training camps in) turbulent areas?" wondered the researchers of the Radboud University in Nijmegen last year.
Moreover, risks also exist. Financial isolation can promote radicalization. It hardly has any effect therefore.
Finally, there are serious objections from rights advocates. For the usual "suspects" involve people and organizations that have been labelled by the secret services, often without concrete charge or complaint, due process, let alone any conviction by a judge.
To register their objection, the suspects themselves have to prove that they have been wrongfully put on such a sanction list. The UN offers no legal recourse; for the EU, it is the European Court of First Instance, a branch of the European Court of Justice in Luxembourg.
Who decides over the sanction lists?
At the United Nations, the so-called sanction committee decides over the composition of the terror list. Member-states nominate "candidates", the sanction committee then deliberates and decides. All 15 countries who are also represented in the Security Council comprise the committee.
Unanimity is required whether one is to be included on or removed from the list. The same also applies to modifications on the EU list, which is being decided upon by the Council of EU ministers.
For the nine members of the Hofstad Group, it was made known how they ended up on the EU list. The previous year they were convicted of participation in a terrorist organization. But more often, it is not clear how and why an individual or a group is added to the list.
Consider Josť Maria Sison. In 1987 he escaped to the Netherlands. The situation in his country of birth had become too dangerous for him, being the founder of the Communist Party of the Philippines (CPP). He did not get the status of political refugee in the Netherlands. But because his life would be in danger should he be sent back, he was "tolerated" and got financial assistance and housing.
Up to that given day in August 2002, when the Netherlands put Sison on the national sanction list, a move that was adopted by the EU some months later.
Sison is totally convinced that the United States was behind that decision. Washington, he says, was persuaded by the US-friendly regime of Philippine president Gloria Arroyo. Washington, in turn, persuaded The Hague. But Sison has no way of proving that because he is prevented from seeing the incriminating material.
Sison's lawyer, the Belgian Jan Fermon, describes it as a "mind-boggling, Kafkaesque experience": "You want to prove that you did not do something, but you can't figure out what that 'something' is."
How is one removed from the list
Once you have been included in the sanction list, getting off is not easy. Sayadi Patricia Vinck and Nabil Sayadi from Putte, Belgium, know this too well. The Belgian-Lebanese couple, who has been in the UN list since 22 January 2003, went to a Belgian court. The judge ruled that the couple's inclusion was characterized by a serious error. But all attempts initiated by Belgium to have Vinck and Sayadi removed from the list have come to naught for lack of unanimity in the UN sanction committee.
The Afghan Abdul Hakim Munib seems to be another victim of such a game. As a Taliban, his name has been in the UN list since 25 January 2001, supposedly at the behest of Russia. But he is no longer a Taliban member after availing of the Afghan reconciliation program and was even named last year as the new governor of the Uruzgan province.
Munib's appointment was even welcomed by the diplomatic community in his country. Still, the Afghan government has failed to have his name removed from the list.
In Europe one can go to the court
Those who are on the European terror list can go to the European Court of Justice. The court does not review the political judgment of the EU countries in coming up with the list, but the question of whether a decent procedure has been followed and whether elementary rules of law have been observed.
Jose Maria Sison is not the only one who has found the road to the European court. The Kurdish Labor Party (PKK), the Al-Aqsa foundation in Heerlen, and the Iranian armed organization Mujahedeen Khalq (MKO, Islamic warriors of the people) also went to Luxembourg to file an appeal.
And not without success. Last month the judges ruled on the disputed listing for the first time. They quashed the freeze order imposed on the assets of MKO, because it, among others, violated the right to defense. The MKO was not informed immediately after their inclusion on the sanction list and was not given the opportunity to file an objection. No specific and concrete justification was also relayed to the MKO.
"One can safely conclude that the court has blown the whistle on the EU member-states," says lawyer and CDA Lower House member Hans Franken.
How to go further
The EU has started adopting a procedure based on the rules formulated by the court. Also being looked into are the consequences of the court decision on persons and organizations that are already on the EU list. Will they be again deprived of their right to avail of the principles that serve as anchor of the European Convention on Human Rights?
The ruling could probably have consequences for the appeal filed by the Heerlen-based Al-Aqsa foundation questioning the reason for their being included on the list, which was they were supposed to be channelling money to the radical Islamic group Hamas. The lawyer of the foundation, Victor Koppe, expects that the freeze order on Al-Aqsa assets of 267,490.22 euros would be lifted based on the same procedural errors that characterized the MKO case. "Not one iota of evidence exists that the foundation's money is intended for terrorism. The Netherlands and the European Union have been completely hit with their sanctions. A correction by the European court is therefore in order," avers Koppe.
The Netherlands recognizes that it has not entirely met the requirements of the listing but, at the same time, it points to a difficult dilemma. The sanctions against Al-Aqsa, claims The Hague, is a big success: the organization has been brought to "a dormant mode". If restrictions are lifted, chances are the money would again be used to finance terror.
Like Al-Aqsa, Jose Maria Sison also pins high hopes on the outcome of the MKO case. "If the humiliation and repression to which I have been exposed become the norm, then there is something wrong."
1 February 2007