The curious case of Mr Nada

Human rights are undermined in the war on terror by the widespread use of blacklists.
Philip Ebels
11 April 2011

Campione d’Italia is something close to paradise. Rested on the shores of Lake Lugano, below the green slopes of the southern Alps, the tiny Italian tax haven commune within the Swiss canton of Ticino is a place of extraordinary natural beauty. But to Mr Youssef Moustafa Nada (80), one of its two thousand or so residents, it was more like something close to prison, after he was designated by the UN Security Council a terrorist banker.

That was in October 2001, shortly after 9/11. Mr Nada, a wealthy Egyptian businessman and a top figure within the Muslim Brotherhood, was suspected by the Bush administration of financing al-Qaeda. His bank accounts were frozen, as were those of his businesses, and his movement was restricted to the 1.6 km2 enclave - more than half of which is water - effectively placing him under house arrest. It wasn’t until eight years later, in September 2009, that he was removed from the UN list of terror suspects and the sanctions against him lifted.

Mr Nada has never been convicted of anything related to terrorism. He has never been accused, no official charges have been filed. Both the Swiss and Italian prosecutors have opened investigations, and both have closed them again for lack of evidence. He himself has always denied any involvement, but has never been able to refute the allegations. “It has been nine years that the applicant has been waiting for a hearing before any court”, Jeremy McBride, Mr Nada’s counsel, said late last month before the European Court of Human Rights, where they seek recognition for rights violated.

Governments everywhere resort to blacklisting, as it has come to be known, in the global war on terror. The idea is simple: to stifle suspected terrorists without the hassle of judicial control. Or, in the words of former US Secretary of State Paul O’Neill, “to set up a new legal structure to freeze assets on the basis of evidence that might not stand up in court.”

It all began before 9/11, but didn’t really take off until immediately after, when the US government convinced the UN Security Council to include Mr Nada along with hundreds of others on a list of people “associated with Osama bin Laden, al-Qaeda, or the Taliban.” It also convinced the Security Council to oblige member states (i.e. everybody but the Vatican) to draw up their own lists of suspected terrorists, at their own discretion. Member states are obliged to freeze assets, and ban entry into or transit through their territories.

Mr Nada and his fellow-designated terrorists were not informed of their new status. Many found out themselves, after being told that they couldn’t leave the country, or that their credit cards had maxed out. Nor were they informed of the reasons why. There was no legal mechanism available to challenge the sanctions imposed. The only way for them to be de-listed was to petition their country of residence to make representations to the Security Council, who would then have to agree unanimously.

Some reform has taken place since then. You will receive notice of your listing, and “a statement of reasons”. You will be able to turn to an ombudsperson, who will evaluate your case and “assist the UN Sanctions Committee in its consideration of delisting requests received.” But you will not have a fair trial; you will not be able to refute the allegations before an independent court who controls the executive, rather than assists it.

Gilles de Kerckhove, EU counter-terrorism coordinator, repeats the defensive tantrum of the member states he works for: “It is not criminal law, it is an administrative sanction.” The difference being that administrative sanctions, like a speeding, or a parking ticket, require less judicial safeguards. Those would only weaken the instrument, he says. “It is a delicate balance.”

Abuse is known to gather wherever there is no judicial control. A UK immigration officer was sacked earlier this year after it was discovered that he had put his wife on the national blacklist. She, on holiday at the time, was unable to return home for three years.

The UN obligation of states to maintain their own, national blacklists, “has effectively outsourced the definition of terrorism”, according to a recent report on blacklists by the European Centre for Constitutional and Human Rights. “It has allowed states to designate resistance movements [such as PKK or PMOI] on the basis of political interests.” The Italian prosecutor, after closing the file on Mr Nada, said that “inclusions on blacklists are motivated principally by political choice.” Mr de Kerckhove makes no secret about it: “It is also a political, a diplomatic tool.”

Mr Nada is again a free man, as are some others who somehow managed to secure their delisting. “But that doesn’t mean that they are nice people”, warns Mr de Kerckhove, “we’re talking about ugly people here!” But isn’t that exactly the point? We don’t know if that’s true.

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