“1… that all States shall take the measures as previously imposed by paragraph 4(b) of Resolution 1267 (1999) [and later resolutions] with respect to Al-Qaida, Usama bin Laden, and the Taliban and other individuals, groups, undertakings and entities associated with them, as referred to in [the Consolidated List]… 2… that acts or activities indicating that an individual, group, undertaking, or entity is ‘associated with’ Al Qaida, Usama bin Laden or the Taliban include: - participating in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of; - supplying, selling or transferring arms and related material to; - recruiting for; or - otherwise supporting the activities of; Al-Qaida, Usama bin Laden or the Taliban, or any cell, affiliate, splinter group or derivative thereof.”
“All funds and economic resources belonging to, owned, held, or controlled by a natural or legal person, entity, body or group listed in Annex I, shall be frozen.”
“Annex I shall consist of natural and legal persons, entities, bodies and groups designated by the UN Security Council or by the Sanctions Committee as being associated with the Al-Qaida network.”
“20 [The Security Council] [d]ecides that, when considering delisting requests, the Committee shall be assisted by an Office of the Ombudsperson, to be established for an initial period of 18 months from the date of adoption of this resolution, and requests the Secretary-General, in close consultation with the Committee to appoint an eminent individual of high moral character, impartiality and integrity with high qualifications and experience in relevant fields, such as legal, human rights, counter-terrorism and sanctions, to be Ombudsperson, with the mandate outlined in annex II of this resolution, and further decides that the Ombudsperson shall perform these tasks in an independent and impartial manner and shall neither seek nor receive instructions from any government.”
“In aid of coherent analysis and observations from the Ombudsperson, the information gathered and the reasoning applied to it must be assessed to a consistent standard. This standard must be one which is appropriate to the unique context of decisions by a committee acting under the express direction of the Security Council. It must take into account the purely international framework, where the benchmark used cannot be premised on the precepts of one particular legal system or tradition. It must instead focus on concepts generally accepted as fundamental across legal systems. In order to arrive at an appropriate standard for the Ombudsperson to apply, I have looked to national and regional law and jurisprudence, particularly in the context of asset freezing or other restrictions in counter terrorism regimes… The standard must also reflect the express intent of the Security Council with regard to the purpose of the sanctions namely ‘that the measures… are preventative in nature and are not reliant upon criminal standards set out under national law’. At the same time, it must be a measure of adequate substance to sustain the serious restrictions imposed on individuals and entities through the application of the sanctions. In this regard, it is evident that the standard applicable in criminal proceedings, nationally, regionally or internationally, is not appropriate for assessing the information and circumstances relating to a listing by the Committee. The sanctions are not intended to punish for criminal conduct. Rather, relevant Security Council resolutions demonstrate that the aim is twofold – to hamper access to resources in order to impede, impair, isolate and incapacitate the terrorist threat from Al-Qaida, Usama bin Laden and the Taliban, and to encourage a change of conduct on the part of those who are members of these groups or ‘associated with’ this individual or these groups. In these circumstances, the standards applicable to a determination of criminal guilt or innocence are obviously of a different nature and serve a distinct purpose from that of the sanctions. At the same time, the sanctions flowing from inclusion on the Consolidated List are of a significant nature. When implemented on an international scale they have a direct and considerable impact on the rights and freedoms of individuals and entities. They are also of an indeterminate length, with no specified end date. Therefore, there must be some substance and reliability to the information upon which such sanctions are applied to these individuals and entities. Mere ‘suspicion’ or reliance upon statements without any consideration as to underlying information or some assessment of credibility is equally inapt in the context. Finally, the standard must be informed by the wide variance of circumstances and types of information, relevant to these cases, particularly given the international nature of the listing process. Taking into account the need to balance these factors, in my view, the standard for the Ombudsperson's analysis and observations should be whether there is sufficient information to provide a reasonable and credible basis for the listing. ‘Sufficiency’ provides the necessary flexibility in terms of assessing different types of information from distinct sources, quantitatively, qualitatively and in substance. The criteria of ‘reasonableness and credibility’ ensure that the combined circumstances provide a rational base for the listing, which is reliable enough to justify the imposition of the sanctions measures….In my opinion, it is a standard which recognises a lower threshold appropriate to preventative measures, but sets a sufficient level of protection for the rights of individuals and entities in this context.”
“The consequences of the Orders that were made in this case are so drastic and so oppressive that we must be just as alert [sc. as was Lord Atkin in Liversidge v Anderson]to see that the coercive action that the Treasury have taken really is within the powers that the 1946 Act has given them. Even in the face of the threat of international terrorism, the safety of the people is not the supreme law. We must be just as careful to guard against unrestrained encroachments on personal liberty.”
“It is no exaggeration to say, as Sedley LJ did in para. 125 [sc. in Ahmed in the Court of Appeal], that designated persons are effectively prisoners of the state. I repeat: their freedom of movement is severely restricted without access to funds or other economic resources, and the effect on both them and their families can be devastating.”
“From the moment that Mr. Youssef was detained in September 1998 the Home Secretary was of the view that there was a strong case (in the absence of criminal proceedings) for removing him on national security grounds to Egypt or a third country. On14 January 1999 a submission was put to the Home Secretary by his advisers that since there was no safe third country to which Mr. Youssef could be removed, the possibility of returning Mr. Youssef to Egypt should be explored. It was appreciated from the outset that given the evidence that detainees were routinely tortured by the Egyptian Security Service it would not be possible to remove Mr. Youssef to Egypt unless satisfactory assurances were obtained from the Egyptian Government that he would not be tortured or otherwise physically mistreated if he were sent back.”
“convicted for membership of an illegal group which aims to obstruct the Constitution and use terrorism as a means of achieving its objectives by assassinating police officers and public figures, as well as committing the offences of murder and firearms procurement.”
“After arriving in the UK in 1994, Al-Sabai [sc. the appellant] was involved in the facilitation of false documentation for EIJ. Sabai was arrested in 1998 in connection with a planned bomb attack on the US Embassy in Tirana. He was held in custody while the Home Office tried to arrange deportation. The Egyptian government refused to give assurances about Sabai’s safety and he was released from custody in 1999 without charge. Following his release the Security Service assesses that his views remain extreme. Our assessment is that Sabai had strong historical links to EIJ during the mid and late 1990s. The potential remains for him to re-engage with EIJ.”
“Update Prior to his designation in 2005, Al-Sabai was detained in September 1998 in the UK for suspected involvement in the attempted attack on the US Embassy in Albania. Al-Sabai was detained until 1999 whilst the UK authority sought his removal. Because of safety on return issues and the failure to obtain the necessary assurances from the Egyptians he was released without charge in July 1999. In August 1999 Al-Sabai publicly left the EIJ and since then Al-Sabai has involved himself with developing his career as a journalist. He posts his preachings onto his own personally run website, where he has also published extremist articles and professes himself to be an expert in Islamic Law. His ideas continue to be extreme. Al-Sabai does not seem to involve himself in visibly directing or supporting extremists activities. Potential for re-engagement We assess that were Al-Sabai to be removed from the Consolidated List he would be unlikely to re-engage with EIJ. Although Al-Sabai continues to maintain his extremist views, he appears very reluctant to be directly involved in terrorist activities. Recommendation Although we stand by our 2005 assessments, on the basis of our current national security assessment against Al-Sabai we do not recommend that the FCO continues to support the inclusion of Al-Sabai on the Consolidated List because of a continuing association with Al-Qaida, the Taliban or Usama bin Laden… Our consideration of the continued designation of Al-Sabai is based on an assessment of his continued associations pursuant to article 2 of UNSCR 1617 (2005). Ultimately, although our recommendation on the UN designation is a factor to be considered in your decision making process, we recognise that the final decision as to whether to seek or support the removal of Al-Sabai from the Consolidated List is a decision for the FCO.”
“In the present context the principle comes into play because [of] the automatic (and severe) effect of the United Kingdom’s decision to lift the hold on the Appellant’s listing on his ordinary common law rights dating back (at least) to Entick v Carrington (1765) St Tr 1029... In taking decisions which will have that effect, the Respondent cannot go further than the express wording of the Security Council resolution he is purporting to apply.”
“the Respondent cannot go further than the express wording of the Security Council resolution”
“SCR 1373(2001) is not phrased in terms of reasonable suspicion. It refers instead to persons ‘who commit, or attempt to commit, terrorist acts’. The preamble refers to ‘acts of terrorism’. The standard of proof is not addressed. The question how persons falling within the ambit of the decision are to be identified is left to the member states.”
“If the Foreign Secretary were deciding the question today, I would expect him to apply the standard set out by the Ombudsperson in her report to the Security Council (unless the Security Council were to determine that some other standard should apply). Her formula is that the test to be applied is ‘whether there is sufficient information to provide a reasonable and credible basis for the listing’, but one cannot do justice to that formula without reading her accompanying explanation of it. In a footnote she observed that ‘In the domestic designation of terrorist entities in a number of common law jurisdictions, a test of “reasonable grounds to believe or a basis/to believe/suspect/be satisfied of” involvement in or commission of terrorist acts or activities is used’. She also noted that the Commonwealth’s Model Legislative Provisions on Measures to Combat Terrorism recommended a test of ‘reasonable grounds to suspect or to believe’. I do not consider that it was unlawful for the Foreign Secretary to apply the test which he did at the relevant time.”
“Each country should implement measures to freeze without delay funds or other assets of terrorists, those who finance terrorism and terrorist organisations in accordance with the United Nations resolutions relating to the prevention and suppression of the financing of terrorist acts”
“The objective of the first requirement is to freeze terrorist-related funds or other assets based on reasonable grounds, or a reasonable basis, to suspect or believe that such funds or other assets could be used to finance terrorist activity... The intent to the first objective is preventative...”
“56. I cannot see a proper basis in law for applying principles other than the usual public law principles in considering the legality of the Foreign Secretary’s decision. I recognise that the court could develop those principles by saying that in this case it should exercise its own judgment whether the claimant met the criteria for designation in September 2005, but I am not persuaded there is a sound basis for doing so, although I recognise the gravity of the consequences of the designation for the claimant. 57. Deciding whether a person meets the criteria for designation is likely in many cases to involve an evaluation of intelligence material which in the nature of things the Foreign Secretary is likely to be in a better position to make than a judge. Even those judges of the Administrative Court who deal with a lot of cases involving sensitive security issues cannot hope to have the same level of knowledge or sensitivity to surrounding security issues as the Foreign Secretary or Home Secretary of the day. 58. It is also a relevant factor, as Mr Swift properly reminded the court, that the courts customarily allow a wide measure of judgment to the Government in matters of security issues and foreign relations.”
“113. The question is whether the court is powerless to achieve a solution whereby a person in the position of G can challenge the underlying basis of the case against him. The question is thus whether he can do so through judicial review. If he can do so under the TO, it would to my mind be very strange if he could not do so in the case of the AQO in a case where the evidence against him appears to be the same in both cases. If he cannot, I would be inclined to hold that the AQO was unlawful, by reason of the application of the principles briefly referred to in [43] to [45] above. 114. The argument addressed to the judge by Mr Singh on behalf of G was that there must be implied into the AQO a right of access to the court by way of judicial review. That is not in dispute. It is the extent or content of the right that is in dispute. Mr Singh submitted to the judge that, since fundamental rights were affected, that review must include a means of challenging the factual basis upon which the Committee’s designation of him was made. ... 119. I would accept the submission that the court has power to consider an application for judicial review by a person to whom the AQO applies as a result of designation by the Committee and, on such an application, to ask the court, so far as it can, to consider what the basis of the listing was. This will not be a challenge to the AQO itself but, if – to take the example of G – it were held that G should not have been listed, I see no reason why HMT (or the relevant Government body) should not, as the judge put it, be bound to support delisting. I feel sure that, if it were so held, HMT would wish to have G delisted and take appropriate steps to that end.”
“147. Unless an effective form of judicial review is available to challenge the nomination, this would in my view be a use of delegated powers to block access to the courts and accordingly a fatal flaw in the Order. But, although I am not sanguine about the viability of a merits review in the face of security-sensitive material, I do not dissent from the holding of the Master of the Rolls that such review is in principle available under the Al Qaida Order.”
“63. The claimant says that if he succeeds in his rationality challenge on the open material, the court should make the declaration which he seeks. If he fails on the open material, the court should then go into a closed session, in which it should examine the redacted material after disclosure to a special advocate appointed on the claimant's behalf. If on the full material the court decides that the rationality challenge is made out, it should so declare.”
“I do not consider that the two stage process advocated by the claimant would now be right as a matter of case management and, more fundamentally, as a matter of justice... Mr Otty advocates a ‘heads I win, tails you lose’ process, giving the claimant a double chance of winning – first without the PII material and secondly with it. I see no justice in that one sided approach.”
“The appellant’s case is that the basis upon which the 1267 Committee was asked to designate him, and the Committee’s reasons for acceding to that request... lay in evidence obtained by torture in Egypt. He also presented evidence that the Secretary of State must have been aware of that fact when he supported the Appellant’s designation in 2005. Neither matter has ever been disputed by the Secretary of State.”
“The issue in the instant case is an important question of law: whether the Secretary of State, as a member of the 1267 Committee, could lawfully decide to support designation of an individual knowing that the evidence presented to the Committee, and so ultimately the Committee’s reasons for making the designation, involved the fruits of torture? The Appellant submits that the Secretary of State cannot lawfully do so.”
“31. The decision by the Foreign Secretary that HMG should release its hold on [the appellant’s] designation was made taking into account the Ministerial submission dated12 September 2005 . That submission, when assessing whether [the appellant] met the criteria for designation, focused on information other than that provided to the 1267 Committee. Whilst I obviously cannot be certain that [the appellant’s] belief as to the circumstances in which the evidence to which he refers was obtained is unfounded, the FCO has no reason to believe that the information that the Foreign Secretary took into account when deciding to release the hold on [the appellant’s] designation was obtained by torture.”
“90. On the premise that the Foreign Secretary lawfully decided that the claimant met the criteria for designation, I do not see that it would be right for this court to hold that it was his legal duty to tell other member states that, while he agreed with the designation of the claimant, he objected to the reason put forward by others and would for that reason not consent to the designation. As I have already said, different states may have different reasons for concluding that a person met the criteria, which they may or may not be willing to share with one another. I do not believe that it would be right for the court to dictate to the Foreign Secretary that he must instruct other member states as to what might be a permissible basis for the designation, and must prevent a designation (for which in his view the criteria were satisfied) unless and until he was satisfied that they were all proceeding on a basis which he considered to be proper.”
“151. Furthermore, the prohibition of torture imposes upon States obligations erga omnes, that is, obligations owed towards all the other members of the international community, each of which then has a correlative right. In addition, the violation of such an obligation simultaneously constitutes a breach of the correlative right of all members of the international community and gives rise to a claim for compliance accruing to each and every member, which then has the right to insist on fulfilment of the obligation or in any case to call for the breach to be discontinued. 153... Because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force.”
“[T]he status of ius cogens erga omnes empowers but does not oblige a State to intervene with another sovereign to insist on respect for the prohibition of torture (paragraph 151 of Prosecutor v Furundzija)...”