By Juliet O'Neill
Postmedia News
August 8, 2010
A court challenge against Canada's participation in the United Nations anti-terrorist sanctions regime will proceed despite the recent appointment of Canadian lawyer Kimberly Prost as UN ombudsperson to handle appeals from people who want their names taken off the no-fly list and seek access to their assets.
Ms. Prost was appointed in June, nearly six months after the 15-country UN Security Council responded to widespread criticism by deciding to appoint an impartial ombudsperson to handle requests by individuals and organizations seeking removal from the lists made by the Security Council's "al-Qaida and Taliban" sanctions committee.
University of Ottawa law professor Amir Attaran, an adviser in the court case, says Ms. Prost's appointment is only a "face-saving" effort for a fundamentally unfair UN process that has been struck down in the U.K. and some other countries, condemned by a group of UN countries, and criticized by the UN's own rapporteur on terrorism and human rights.
An official at the British Columbia Civil Liberties Association said the lawsuit it filed in June together with the International Civil Liberties Monitoring Group and Abousfian Abdelrazik, the only Canadian known to be on the UN sanctions list, will proceed despite Ms. Prost's appointment. BCCLA policy director Micheal Vonn said the lawsuit attacks the ombudsman process laid out last winter.
The two groups are asking the Federal Court of Canada to strike down Canadian regulations implementing the decade-old United Nations Security Council Resolution 1267 on grounds the listing process and the appeal process lack "basic protections of procedural fairness that are fundamental to the rule of law."
Yaveer Hamid, the lawyer who handled Mr. Abdelrazik's request for delisting by the UN sanctions committee a couple of years ago, said "we need to have some sort of guarantees in terms of transparency in the process" if they are to try again under Ms. Prost - otherwise it would be another "shot in the dark."
Mr. Abdelrazik's request, transmitted by the Canadian government, was refused without reason and he was never given reasons why the U.S. got the committee to put him on the list in the first place.
Ms. Prost served as a judge at the International Criminal Tribunal for the former Yugoslavia from July 2006-2010 and previously served as chief legal adviser in the UN office on drugs and crime and the head of criminal law at the Commonwealth secretariat.
She also worked for two decades in Canada as a federal prosecutor. She was the Canadian Justice Department lawyer whose letter to Swiss authorities in 1995 provoked former prime minister Brian Mulroney's lawsuit against the federal government in the Karlheinz Schreiber affair.
In July, Ms. Prost said she can collect and analyze information in response to delisting requests that are directed to her office but she cannot make recommendations. The sanctions committee still makes the decisions and handles requests for delistings from governments, such as the recent successful one by Afghanistan President Hamid Karzai.
A few days ago the chair of the sanctions committee, after announcing the delisting of 45 people allegedly associated with the Taliban or al-Qaida, told reporters that "at the end of the day it's a political decision based on a political process."
Eight of the 45 were dead people. Dead people were removed for the first time last week since the regime was set up in 1999.
The remark by committee chair Thomas Mayr-Harting is contained in the summary of his remarks issued by the UN on its website. There are 443 people left on the list now.
"I'm afraid Ms. Prost has been used to try and save face," Mr. Attaran said in an interview. He sees her role as fulfilling "a UN strategy of merely saving face through diplomatic means over what has been a legal mistake" of allowing a UN committee to strip liberties from individuals without due process.
The sanctions process has been criticized by a Canadian Federal Court judge, in the European Court of Justice and in a Swiss court. The regulations implementing it in the United Kingdom have been struck down in the Supreme Court, formerly known as the House of Lords, on the grounds there is no effective judicial remedy against a listing.
"It lacks what the Americans call due process, what we call procedural fairness, what the English frequently call natural justice," Mr. Attaran said. "These things are dropping like ten pins all over."
He bet that "where the European Union, British and Swiss courts say it doesn't work, Canada's courts are going to say the same."
