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RIGHTS: ‘Too Innocent to Try, too Guilty to Fly’

Jan Lammers

BRUSSELS, Oct 25 2009 (IPS) - Getting blacklisted as belonging to a terrorist organisation is a punitive sanction, even though governments may say it is only an administrative measure, according to the American Civil Liberties Union (ACLU) and the European Centre for Constitutional and Human Rights (ECCHR).

More often than not, blacklisted persons only come to know they are suspected of affiliation with a terrorist organisation because they cannot withdraw money from their bank accounts any more. Others discover it after getting barred from boarding a plane. Since the 9/11 attacks, the number of people on such suspect lists has risen sharply, ACLU and ECCHR lawyers said at a conference on terrorism lists organised by the ECCHR in Brussels earlier this week.

“Not even knowing you are on the list and not getting to defend yourself before getting listed are two of the largest problems involved‚” said Belgian lawyer Jan Fermon at the conference. “And once someone is on a blacklist, it is almost impossible to get his or her name removed from it,” said Fermon, who has represented several people on the European Union terrorism list.

To get someone off the suspects list of an international organisation such as the UN or EU, all members need to be unanimous, lawyers said at the ECCHR conference.

Administrators say listing is not arbitrary. “Getting put on the list is equally hard,” said Gilles de Kerchove, the EU counterterrorism coordinator. “All members have to agree with that as well.” De Kerchove said inclusion on the EU terrorism list is only an administrative measure.

But administrative procedures throw up other issues. Most international organisations do not read most submissions, Mark Muller of the Bar Human Rights Committee said at the conference. Each nation’s representative just accepts other countries’ entries so that their country’s names are not challenged by the other members, Muller said.

De Kerchove acknowledged that this is an important problem to tackle.

Without access to their accounts, suspects have to live on donations from friends, and cannot benefit from health insurance when they get sick. “Exclusion from social and economic life cannot be called merely administrative, it goes against basic human and constitutional rights in the EU,” Fermon told IPS.

Because a lot of listed people do not know why they are on a blacklist, they cannot defend themselves in court. Suspects have to prove they have no links with terrorism, but do not get access to any evidence that led to the accusations.

Such documents, provided they exist, are usually labelled secret for reasons of national security. Fermon said this issue had come up in cases before the European Court of Justice in Luxembourg. Canadian lawyers Barbara Jackman and Amir Attaran said they had confronted a similar problem in their country.

Many people on the EU blacklist are refugees, seeking political asylum from persecution in their homelands. Philippine dissident Jose Maria Sison, living in the Netherlands since 1998, was blacklisted, and had to leave housing provided by the government.

Families of blacklisted persons are allowed to stay on, but they are prevented from living with them. This leads the blacklisted to be stigmatised. Their children and spouses can suffer public humiliation, putting stress on their relations and daily life, and this happened in the case of Sison, Fermon said.

Fermon and his team won the Sison case earlier this year, but the EU is considering appealing against the verdict.

Hundreds of thousands of names appear on blacklists around the world, including many on the ‘no-fly list’ of the U.S. Relatively few are prosecuted, as there is often no evidence linking them to acts of terrorism. The need for due process may protect them from lawsuits, but it apparently is not a requirement for designating them suspected terrorists.

“They are too innocent to try, but too guilty to fly,” Amir Attaran told the conference.

Several of these people are listed because they are linked to broader organisations. “This way, a dentist in a hospital in Gaza can be considered a terrorist if the hospital is funded by Hamas,” Barbara Jackman told IPS.

“Although, after lengthy processes, people like this have been exempted when they were considered members of terrorist organisations but clearly only performed peaceful tasks, it is more an exception than a rule,” says Jackman.

Fermon says that if an organisation opposes a government, that government itself has to be evaluated. Many listed as suspected terrorists, he said, are members of groups that fought, whether politically or through armed struggle, a dictatorial regime that does not respect human rights. Such regimes can have ties with Western nations, and persuade those governments to blacklist these opponents.

Muller says there is a high number of people on blacklists around the world who have only participated in a legitimate struggle. “It is essential that there is differentiation between members of struggles with a social or political goal and, for instance, jihadist groups,” he told IPS.

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