Canadian Abousfian Abdelrazik is on the U.S. Security Council’s Al Qaida sanctions committee list. His assets are frozen and he is subject to an international travel ban. His case generated substantial notoriety when the Canadian government resisted his repatriation from Sudan on the basis, among other things, of his listing. It has generated even more controversy as Abdelrazik sues Canada for what he alleges was complicity in his arrest and maltreatment in Sudan.
An important secondary legal battle is being waged at the Security Council itself, where Abdelrazik has availed himself of the new Office of the Ombudsperson to advance his claim for delisting. The Ombudsperson’s confidential report was filed with the Security Council’s Al-Qaida sanctions committee in August. We now await its decision.
What the sanctions committee decides will have implications that will extend beyond the Abdelrazik case itself. The Al Qaida sanctions listing process has suffered, if not death, then certainly ill-health from a thousand cuts. National-level courts have been issuing decisions questioning the due process standards associated with the listing process. (Put simply, there are none, as domestic legal systems would understand the concept). The Ombudsperson’s office is a partial answer to the problem—but it is no guarantee of due process propriety, as one European court pronounced soon after the office’s creation.
Abdelrazik himself has a case challenging Canada’s implementation of the listing process on constitutional grounds. That matter is undecided; but in an earlier skirmish, the Federal Court said enough derogatory things about the U.N. listing system that one might seriously doubt it could survive a Charter of Rights and Freedoms inquiry.
Still, a positive record of careful consideration of delisting requests may go a long way in appeasing concerns about the integrity of the system. An actual delisting of Abdelrazik would avert an impending legal train-wreck in Canada itself; for if a Federal Court were to rule Canadian implementation of the Security Council sanctions committee list unconstitutional, Canada would be unable to implement its obligations under the UN Charter. Put another way, to comply with its constitution, Canada would have to violate its international obligations.
For those of us who have been critical of the Al Qaida sanctions list, this is not necessarily a bad thing: conundrums like this are what drive reform and improvements in the sanctions process, and are to be welcomed. But for the government of Canada, they would present a real headache.
Within weeks, the Security Council sanctions committee will decide whether to risk the train-wreck or leave it for another day.