Terrorist blacklisting has been a central plank of the "war on terror" pursued by western states since 9/11. The idea is simple. International or regional bodies (such as the UN and EU) and states (such as the UK) designate individuals and groups thought to be terrorists or "associated with" terrorism, freeze their assets, impose travel bans, criminalise their membership and prevent others from supporting them. Yet after almost 10 years – following a plethora of successful legal challenges, the failure of reforms that have tried to render listing procedures compliant with human rights, and widespread criticism by judges and other officials – the policy of blacklisting is now facing a fundamental crisis of legitimacy.

The evolution of this crisis, and the possible ways of moving beyond it, are detailed in a critical report launched today by the European Centre for Constitutional and Human Rights (ECCHR), which suggests that the time has come for radically rethinking the policy of blacklisting. Following the recent recommendations of Martin Scheinin, the outgoing UN special rapporteur on the promotion and protection of human rights while countering terrorism, it calls for the two key security council resolutions underpinning the blacklisting system to be abolished.

Resolution 1267 (and the resolutions that amended it) created the UN sanctions committee, comprised of all members of the security council, to compile a list of individuals and groups "associated with" Osama bin Laden, al-Qaida and the Taliban and compel states to bring proceedings or penalise those designated. Resolution 1373 requires states to criminalise the support and financing of terrorism while giving them the autonomy to set up their own domestic blacklists. The EU has used it to set up its own list criminalising groups such as the PKK and the LTTE as terrorist organisations.

The most persistent criticism of both regimes is that they breach fundamental rights. Most listing decisions are based on secret intelligence material that neither blacklisted individuals nor the courts responsible for reviewing the implementation of the lists will ever see. As courts have repeatedly affirmed, one cannot oppose allegations against them (and exercise their right to judicial review) if they are prevented from knowing what the allegations actually are. Such treatment is a fundamental breach of the right to a fair trial. Yet it is an ongoing Kafkaesque reality for the majority of those who are placed on the blacklists.

Originally, those designated at the UN level had no possibility of making representations to the sanctions committee and no mechanism available to seek removal once listed. While subsequent reforms have given the appearance of an improved procedure (for example, by creating a UN ombudsman to "assist" with delisting applications), the fact remains that all relevant decisions are still taken by the sanctions committee in secret and there is still nothing resembling an effective remedy or right to be heard for those on the UN blacklist.

Yet the problems extend well beyond the draconian effect on human rights. By effectively outsourcing the definition of "terrorism" to nation states, resolution 1373 has facilitated the criminalisation of groups on the basis of geopolitical, foreign policy or diplomatic interests. That US Republicans are seeking to have WikiLeaks blacklisted as a terrorist organisation succinctly highlights the arbitrariness of the process. The criminalisation of self-determination movements has transformed diaspora communities that support them into "suspect communities" and obstructed peace processes aimed at resolving such conflicts. Blacklisting also has strong gendered impacts, disproportionately affecting the spouses of those targeted and criminalising the most basic of activities (such as the sharing of food between family members) as "material support" to terrorism.

Most discussions on the topic focus solely on the conflict with fundamental rights. Yet this incompatibility is not so much an unfortunate consequence of blacklisting but rather its raison d'etre. Blacklisting has been prioritised by western states not because of its effectiveness – indeed, it has been largely ineffective in achieving its ostensible aim of blocking terrorist financing – but because of the way it facilitates prolonged and pre-emptive interference with the lives of terrorist suspects on the basis of intelligence material incapable of withstanding proper judicial scrutiny.

It is best understood alongside other pre-emptive security measures such as control orders that operate on the lower standard of "risk" rather than "proof" and that are – according to a recent report by the International Commission of Jurists – giving rise to "parallel" systems of administrative intervention that are supplanting criminal justice systems and actively undermining the rule of law.

While repealing the international legal framework for blacklisting is an important step, such problems are bigger than the specific laws that create them and too important to be left to states, policy-makers and the courts to resolve on their own. Blacklisting – and the values of threat, risk and security it embodies – involve all of us at a more fundamental level. A broader public debate about how terrorism ought best be dealt with and what kind of political community we want to be a part of is necessary if the persistent problems of blacklisting are to be resolved rather than simply controlled.