Statewatch comparative analysis of the US, UK, UN and EU "terrorist lists"
U.S. U.K. U.N. E.U.
Scope of list(s) i) "Foreign Terrorist Organisations" [proscription]
ii) "organizations and individuals linked to terrorism" [assert freezing, designation]
iii) "Terrorist Exclusion List" [exclusion of aliens associated with "terrorist" entities, designation]
"International terrorist organisations"
"Usama Bin Laden, members of the Al-Qaida organization and the Taliban and other individuals, groups, undertakings and entities associated with them"
i) "Persons and entities associated with Usama bin
Laden, the Al-Qaida network and the Taliban"
ii) "Persons, groups and entities involved in terrorist acts"
Legal basis i) Proscription under Section 219 of the Immigration and Nationality Act (INA), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 and the USA PATRIOT Act of 2001.
ii) A "Comprehensive List of Terrorists and Groups" whose assets are to be frozen is contained in Executive Order 13224 (full-text, 23 September 2001). See also Tresury Dept.'s "Terrrorism brochure" covering Executive Order 13224. The US "fulfills its UN obligations" (see SC Resolution 1267, right) by designating under this Executive Order.
iii) The US also maintains a "Terrorist Exclusion List" under Section 411 of the USA PATRIOT Act of 2001 (8 U.S.C. § 1182) for the purposes of excluding "aliens associated with entities on the TEL from entering the United States".
Proscription under Part 2 of Terrorism Act 2000. Organisations in Northern Ireland first proscribed in 1974 under "emergency" anti-terrorism legislation.
"Designation" on seperate lists under UN Security Council Resolutions 1267, 15 October 1999 (Taliban) and 1333,19 December 2000 (Al-Qaida).
SC Resolution 1390 (16 January 2002) consolidates the lists and provides for updates by Security Council Committee.
SC Resolution 1455 (17 January 2003) provides for monitoring of implementation by the 'Sanctions Committee' established under SC Resolution 1363 (30 July 2001).
ii) "Terrorist" list drawn-up under EU Common Position 2001/931 (27 December 2001). Provision for the freezing of assets and resources of those persons and groups on the list that come from outside the EU ("foreign terrorists") in conjunction with EC Regulation 2580/2001 (27 December 2001).
i) Unlawful for any person in the United States (or subject to US jurisdiction) to knowingly provide "material support or resources" to a designated FTO
[The term "material support or resources" is defined as "currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials"]
Representatives and members of FTOs to be refused entry to US and/or deported.
ii) All US financial institutions must freeze funds of FTOs and groups and individuals designated under the Executive Order 13224 and report them the Office of Foreign Assets Control of the U.S. Department of the Treasury.
iii) Individual aliens providing support to or associated with entities on the "Terrorist Exclusion List" may be found inadmissable to the U.S., i.e., such aliens may be prevented from entering the U.S. or, if already in U.S. territory, may in certain circumstances be deported.
Offences related to proscription include a) membership of a proscribed organisation, b) inviting support, including fund-raising, for a proscribed organisation, c) managing or assisting in the arranging of meetings to support or further the activities, or to be addressed by a member of a proscribed organisation and d) addressing a meeting where the address encourages support for a proscribed organisation.
Those found guilty are liable, on conviction, "to imprisonment for a term not exceeding ten years, to a fine or both" or "on summary conviction", to imprisonment for no more than six months, a fine, or both. Persons wearing an item of clothing or wearing, carrying or displaying "an article, in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation" in a public place, will be liable to imprisonment for up to six months, to a fine or both.
SC Resolution 1390 requires all UN member states to a) freeze the funds and other financial assets or economic resources of these listed, "including funds derived from property owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction"; b) prevent the entry into or the transit through their territories of those listed (unless they are citizens of that state); c) Prevent the "direct or indirect supply, sale and transfer" to those listed "of arms and related materiel of all types including weapons and ammunition, military vehicles and equipment, paramilitary equipment" and "technical advice, assistance, or training related to military activities".
SC Resolution 1390 also reaffirms the broader anti-terrorism commitments in SC Resolution 1373 (28 September 2001) under which "states" are obliged to refrain from "providing any form of support, active or passive" to "entities or persons involved in terrorist acts". UN member states must also "deny safe haven" to terrorists, crimianlise fundraising and "afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts".
i) Under the Taleban/al-Qaida Regulations (above), member states are required freeze the assets of those designated and uphold a flight ban on certain aircraft.
ii) Under Common Position 2001/931 the member states must "afford each other the widest possible
assistance in preventing and combating terrorist acts" and "proceedings conducted by their authorities in respect of any of the persons, groups and entities listed".
The member states must also freeze the assets and resources and prohibit financial transactions with the "foreign terrorists" on the list, , imposing "effective, proportionate and dissuasive" sanctions (Regulation 2580/2001). The financial sector must cooperate fully in this process.
The EU member states are also bound by Common Position 2001/930 (27 December 2001) which implements UN SC Resolution 1373. However, the Common Position goes further than the Resolution, requiring EU states to prevent "the public" from offering "any form of support, active or passive" to "entities or persons involved in terrorist acts". In addition, the non-binding provisions in the SC Resolution - including the security vetting of all asylum-seekers and refugees for connections with terrorism, the abolition of the "political offence" exception in terrorism extradition cases, and the exchange of intelligence - are binding in the Common Position.
The EU has also begun entering the names of individuals on the lists into the Schengen Information System, registering the foreign "terrorists" as "illegal aliens" to be refused entry.
First "terrorist" list agreed
[In January 1995 the Democratic Front for the Liberation of Palestine (DFLP) was subject to an Executive Order signed by President Clinton prohibiting financial transactions and blocking their assets in the United States]
29 March 2001
(21 groups, see SI).
[Another 14 groups in Northern Ireland are proscribed under previous legislation dating back to 1974]
25 January 2001
[This is the earliest date that groups and individuals on the "consolidated" list (under SC Res. 1390) are recorded as being "listed on". According to the Security Council press releases its "1267 Committee" first designated the funds and financial resources of the Taliban on 13 April 2000]
27 December 2001
(29 individuals; 13 groups)
See current lists for updates
Criteria for inclusion
i) FTOs must engage in "terrorist activity" or "terrorism" or "retain the capability and intent to engage in terrorist activity or terrorism". The organizations terrorist activity or terrorism must threaten the security of U.S. nationals or the national security (national defense, foreign relations, or the economic interests) of the United States.
ii) The criteria used for the designated individuals and groups in the Presidential Executive Order are not known, though the Order itself cites "the continuing and immediate threat of further attacks on US nationals or the US constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the US".
iii) An organization can be placed on the "terrorist exclusion list" if the Secretary of State finds that the organization: "commits or incites to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity; prepares or plans a terrorist activity; gathers information on potential targets for terrorist activity; or provides material support to further terrorist activity".
A terrorist organisation is defined as "any association or combination of persons" which "commits or participates in acts of terrorism, prepares for terrorism or encourages terrorism or is otherwise concerned in terrorism".
The Home Secretary has to take into account, when making a decision, factors including: "a) the nature and scale of an organisation's activities; b) the specific threat that it poses to the UK; c)the specific threat that it poses to British nationals overseas; d) the extent of the organisation's presence in the UK; and e) the need to support other members of the international community in the global fight against terrorism".
Individuals and entities are designated as "belonging or related to the Taliban, Usama Bin Laden and the Al-Qaida organization" on the basis of "relevant information" provided by the UN member states and "regional organisations".
"Proposed additions to the list should also include, to the extent possible, a narrative description of the information that forms the basis or justification".
[See Guidelines of the Security Council Committee established pursuant to resolution 1267]
i) The EU list of Taleban/al-Qaida associates is apparently based on the UN list. However, the Commission is empowered to supplement and/or amend the list on the "basis of pertinent notification
or information by the UN Security Council, the Taliban Sanctions Committee and the Member States, as appropriate".
ii) "Terrorist" groups and individuals are listed on the basis of "precise information or material... which indicates that a decision has been taken by a competent authority in respect of the persons, groups and entities concerned, irrespective of whether it concerns the instigation of investigations or prosecution".
"Persons, groups and entities identified by the Security Council of the United Nations as being
related to terrorism and against whom it has ordered sanctions may be included in the list".
Definition of terrorism
Criminal acts dangerous to human life and apparently intended to:
(i) intimidate or coerce a civilian population;
(ii) influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination or kidnapping
The use or threat of action designed to influence the government or to intimidate the public or a section of the public, for the purpose of advancing a political, religious or ideological cause
No formally agreed definition. UN General Assembly Resolution 51/210 (1999) on measures to eliminate international terrorism:
1. Strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed;
2. Reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them
Offences committed with the aim of:
- seriously intimidating a population, or
- unduly compelling a Government or international organisation
to perform or abstain from performing any act, or
- seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country
or an international organisation
The Office of the Coordinator for Counterterrorism in the State Department (S/CT) identifies the groups to be included and prepares an "administrative record" for the Secretary of State.
The Secretary of State then designates them as "Foreign Terrorist Organizations (FTOs)", in consultation with the Attorney General and the Secretary of the Treasury.
Congress then consulted (see following box).
No consultation of Congress in the case of groups and individuals designated under the Executive Order.
Groups selected by Home Secretary on the basis on information including classified material from UK and foreign intelligence services, along with police, security and legal advice. A working group exists within the government service at which all the interested parties meet and scrutinise proscriptions.
Parliament is then consulted (see following box).
List agreed by the Security Council Committee established pursuant to resolution 1267 which comprises one representative from each state in the Security Council.
The Committee reaches decisions "by consensus". If consensus cannot be reached on a particular issue, the Chairman organises "further consultations" to "facilitate agreement". If after these consultations consensus still cannot be reached, "the matter may be submitted to the Security Council". "Given the specific nature of the information, the Chairman may encourage bilateral exchanges between interested Member States in order to clarify the issue prior to a decision".
"Where the Committee agrees" decisions may be taken by "written procedure". This mean that proposed decisions are simply circulated to the Committee member and adopted if no-one objects within 2 working days ("or in urgent situations, such shorter
period as the Chairman shall determine").
"Terrorist" list agreed by unanimous Decision in the Council of the EU (the 25 member states). "Written procedure" has been used to adopt and amend the lists (see previous box).
The Commission is apparently empowered to add groups and individuals to the Taleban/al-Qaida asset-freezing list on the basis of "pertinent information" from the member states.
Congress is notified of the Secretarys intent to designate the organization and given seven days to review the designation. After the seven days notice of the designation is published in the Federal Register, at which point the designation takes effect.
Home Secretary places an Order before parliament listing all the proscribed groups. The list is debated and must be approved by parliament. However, the Order can only be approved or rejected wholesale.
FTO designations expire automatically after two years, but the Secretary of State may redesignate an organization for additional two-year period(s), upon a finding that the statutory criteria continue to be met.
No time limit for expiry of proscription Orders.
The government's working group reviews all proscriptions every 6 months "in the light of intelligence and other information, all of which is quality assessed".
Bi-annual review of Terrorism Act by "Independent Reviewer" who may make "Recommendations".
No time limit for expiry of designations.
The need to maintain the list is considered in the annual reviews provided for in the relevant Security Council Resolutions.
No time limit for expiry of lists.
The names of persons and entities on the list must be reviewed "at regular intervals and at least once every six months to ensure that there are grounds for keeping them on the list".
[see also "challenging proscription" for cases and judgments]
An organization designated as an FTO may seek judicial review of the designation in the United States Court of Appeals for the District of Columbia Circuit not later than 30 days after the designation is published in the Federal Register.
The proscribed organisation or any person affected by the organisations proscription
may apply to the Secretary of State to remove the organisation from the list.
If the application is refused, the applicant may appeal to the Proscribed Organisations Appeal Commission (POAC). This uses the same process as the notorious SIAC hearings under ATSA 2001- government appointed judges, secret hearings, secret evidence and special advocates.
If the POAC rejects the application for "deproscription" the Court of Appeal may only consider applications that raise points of law (i.e. challenges to the proscription/POAC system itself). There have been no successful challenges to date.
Individual(s), groups, undertakings, and/or entities on the 1267 Committees list "may petition the government of residence and/or citizenship" to request a review and "support for de-listing". The government to which a petition is submitted should review all relevant information and then approach bilaterally the government(s) originally proposing designation. If, after reviewing any additional information, the petitioned government wishes to pursue a de-listing request, it should seek to "persuade the designating government(s) to submit jointly or separately a request for de-listing to the Committee". If "consensus" on the de-listing request can not be reached, the matter should be submitted to the Security Council.
No mechanism provided for appeal against inclusion on the list of "persons, groups and entities involved in terrorist acts"under the Common Position. Moreover, the validity of EU Common Positions cannot be challenged before the Court of Justice, and national courts cannot ask the European Court questions about their validity or interpretation.
Neither is their any mechanism for appeal to the EU against the order for the "foreign terrorists" and associates of the Taleban or al-Qaida whose assets and resources are frozen. However, those affected can apply to a member state requesting a "specific authorisation" to unfreeze funds and resources. After consultation with the other Member States, the Council of the EU and the European Commission the requested state can reject the application or grant the specific authorisation.
The Regulations and Decisions implementing them are subject to possible rulings by the European Court of Justice on their interpretation or validity, but this is undermined where the Regulations are connected to the the Common Position.