UN 'may use torture evidence to impose sanctions on terror suspects'

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United Nations' special rapporteur on counter-terrorism questions integrity of security council's enforcement regime

Owen Bowcott, legal affairs correspondent

The United Nations may be relying on evidence obtained by torture when deciding whether to impose restrictive financial sanctions on al-Qaida suspects, a British UN official has warned.

Ben Emmerson QC, the UN's special rapporteur on counter-terrorism, has questioned the integrity of the security council's enforcement regime and the way it acquires its intelligence.

More than 300 people worldwide are on the committee's combined al-Qaida and Taliban sanctions list. Critics of the system warn that the same flaw is built into other punitive UN sanction regimes.

Emmerson's allegation supports claims made in British courts that information acquired by the former Egyptian president Hosni Mubarak's security forces and other notorious sources has been exploited to identify suspects. About only five suspects are believed to be subject to the sanctions in the UK. Once on the list, suspects seeking to prove their innocence find it exceptionally difficult to have their names removed.

The call for reform comes as appeals to European courts threaten to undermine states' international obligations to the UN's sanctions committee.

The sanctions regime against those who support al-Qaida and the Taliban is operated by the UN's 1,267 security council committee (the number derives from the relevant UN resolutions).

Addressing the United Nations assembly in New York this month, Emmerson said: "The consequences of being on the security council's consolidated [sanctions] list are enormous, so checks and balances should be brought to international human rights standards.

"Once an individual or entity is placed on the list, states are required to impose a range of measures on those listed. Such sanctions result in a significant interference with the right to freedom of movement, property rights and the right to privacy in all its manifestations. In addition, placement on the list is not subject to any domestic or international judicial review."

There is an ombudsperson – a Canadian lawyer – but she has insufficient powers, Emmerson added. "The ombudsperson has no decision-making power, which resides with the committee and the security council. The office should be empowered to receive and determine petitions from designated individuals or entities, for their removal from the list, and for the authorisation of humanitarian exemptions."

The UN should not rely on evidence "plausibly believed to be obtained" through torture, he added, since the practice is banned by UN conventions.

In a written report to the UN, Emmerson explained: "Lawyers acting for petitioners [opposing their inclusion on the al-Qaida and Taliban sanctions list] have satisfied [me] that intelligence derived from torture has been used to justify the designation of individuals.

"… When confronted with an allegation that information may have been obtained by torture, the ombudsperson proceeds with caution, making enquiries of the state that submitted the information to the greatest extent possible.

"She does not, however, necessarily exclude information that was or may have been obtained by torture from her assessment since she does not consider herself bound by formal rules of evidence." Claims that Hany Youssef, an Egyptian-born asylum seeker, had been put on the UN sanctions list through false evidence obtained under torture emerged in a high court case in London this year.

The case was formally brought against the Foreign Office, even though the department has been attempting to have Youssef, a lawyer and member of the Muslim Brotherhood, de-listed by the UN 1,267 committee for the past three years.

The committee's ombudsperson, Kimberley Prost, who has served as a judge on the international criminal tribunal for the former Yugoslavia, acknowledged that her office did not automatically exclude evidence that might have been obtained through torture.

She told the Guardian: "Information obtained through torture is inherently unreliable … but I would not formally exclude it because [my de-listing reviews] are not a common law process. We differ in that approach.

"I am not involved in listing [suspects]. In terms of de-listing applications, I have had about 34 requests." Torture had been raised in some of those requests, she said, but had not been a "factor". She added: "That's not to say the principle is not at issue."

Source: The Guardian UK, 11 November 2012