infra-Legalities Research Team contribute to key Global Watchlisting policy making forum

GCTF Watchlisting Guidance Manual Initiative: Virtual Consultations on the Application of Watchlists of Known and Suspected Terrorists, Including Foreign Terrorist Fighters - Webinar on International Cooperation, Redress and Oversight Mechanisms, and Quality Control to take place on 8 February 2021.

On 8 February 2021, the infra-Legalities research team participated in the third technical workshop of the Global Counterterrorism Forum’s Watchlisting Guidance Manual initiative – which is setting global standards on how terrorist watchlists and databases should be created and interconnected around the globe. The political and legal stakes of this ‘technical’ initiative are significant, to say the least.

The high-level event – entitled The Application of Watchlists of Known and Suspected Terrorists, including Foreign Terrorist Fighters – International Cooperation, Redress and Oversight Mechanisms, and Quality Control – was jointly organised by the US State Department and the UN Counterterrorism Executive Directorate. It was part of a series of GCTF events aimed at building guidance to implement UN Security Council Resolution 2396 (2017), which requires all states to develop watchlists and databases of known and suspected terrorists, as well as the capabilities for collecting and analysing travel and biometric data, in compliance with international human rights law. Participants included representatives from governments of the United States, Russia, Morocco, India, Canada, Germany, Italy and Switzerland as well as the European Union and various UN counterterrorism bodies.

During the debate on oversight and redress, our intervention highlighted some of the pressing structural problems underpinning this ambitious global security infrastructure project. The vast majority of people included by states on watchlists, for example, are foreign nationals, not citizens of watchlisting states. The US Terrorist Identities Datamart Environment (TIDE) – the world’s largest terrorist database – contains approximately 1,600,000 people. But only 16,000 are US citizens or residents capable of bringing legal challenges before US courts. The 99% of the foreign nationals who are targeted do not have the right of legal challenge or the capability to exercise due process/defence rights before the courts of watchlisting states due to procedural and jurisdictional obstacles. The watchlisting systems of other states – such as Canada’s SATA watchlisting system – similarly exclude foreign nationals from bringing legal challenges against their listing, or finding out the reasons why they have been targeted.  Existing ‘redress’ mechanisms often highlighted by states – such as Department of Homeland Security’s TRIP mechanism, an opaque electronic mailbox where affected individuals can request list removal – have recently been found to be unconstitutional by US courts.

Unless states and international bodies involved in the GCTF’s Watchlisting Guidance Manual grapple with this critical issue and allow all listed persons (not just citizens) to (i) be provided with the reasons why they are listed and (ii) enable them to challenge listing decisions before the courts, then rights of redress and effective remedy will be illusory for 99% of those targeted by such systems. Once listed, they will likely remain entangled in the global watchlisting system forever, with potentially grave and irreparable consequences – both for themselves and for others deemed to be ‘associated’ with them.  The GCTF Watchlisting Guidance Manual, in other words, risks creating a global mobility/immobility infrastructure that enacts news forms of global exceptional governance and biopolitical management.

This fundamental problem is something that EU authorities seem to be alive to. The EU’s ETIAS watchlisting system expressly allows for all those targeted to have ‘access to an effective judicial remedy to ensure that data stored in ETIAS are amended or erased’. The procedure envisages appeals being conducted in the Member State that has taken the listing decision and in accordance with the national law of that Member State. The global standards of the GCTF in this area must adopt a similarly broad approach to redress, if they are to comply with international human rights law, as UNSCR 2396 (2017) requires. But this will require the GCTF to set procedural safeguards at a higher level than that currently adopted by the US government, who is co-leading this watchlisting initiative.

This emerging global watchlisting infrastructure is a key focus of the infra-Legalities project. We look forward to continuing to bring our expertise and research to bear on this problem going forward.