Guest Contribution: Murphy on Terrorism Sanctions in the EU

We are very pleased to welcome this guest contribution from Dr Cian Murphy (right) of City University, London. You can find out more about Cian on our guest contribitors page.

The Rule of Law Inches Forward: UN Sanctions in EU Law

Chafiq Ayadi is one of only two individuals resident in Ireland whose assets are frozen under the UN sanctions regime established by UN Security Council resolution 1267. Two years ago I published a short note in the 2007 Dublin University Law Journal (‘Ayadi v Council: Competence and Justice in the “War on Terrorism”’ [2007] Dublin University Law Journal 426) critically commenting upon the decision of the EU General Tribunal (then the Court of First Instance) in his legal challenge to the freezing of his assets (Ayadi v Council). I concluded, somewhat pessimistically, by noting that

For the European resident targeted by the sanctions, access to justice is guarded by Kafka’s doorkeepers. For his subsistence, the individual must petition his government. For his delisting, he must petition the Sanctions Committee. For protection of his rights, he must wait, for the doorkeepers are many and the door, though apparently open, cannot be passed through.

Much has changed since I penned this (admittedly somewhat florid) conclusion. In the leading Kadi case, the European Court of Justice followed AG Maduro’s lead and held that the sanctions were unlawful for want of procedural safeguards to protect those targeted (you can read the thoughts of one of this blog’s regular contributors on the case here). Following its decision in Kadi, the European Court of Justice allowed Mr Ayadi’s appeal against the CFI decision in his case. In a related case – Othman – the General Tribunal itself applied the Kadi ratio and held for the applicant. Furthermore, it indicated the impatience of the European Courts by refusing the Council’s request to delay the effect of the judgment, noting that the Council and Commission had ample opportunity to reconsider Mr Othman’s case in light of Kadi but had not done so. The Kadi decision has resulted in a rash of academic commentary – see for example the ongoing discussion in the European Journal of International Law.

Lively though this debate is, this note does not aim to contribute to it. Rather, the focus is on the two major law reforms at UN and EU level: contained in UN Security Council Resolution 1904 (adopted 17 December 2009) and EU Regulation 1286/2009 (adopted 22 December 2009). At the UN level, the principal development has been the establishment of an Ombudsperson to replace the Focal Point. The Ombudsperson is certainly an improvement its predecessor, which was effectively limited to passing delisting requests from individuals to the Sanctions Committee. The new Resolution

[d]ecides that, when considering delisting requests, the Committee shall be assisted by an Office of the Ombudsperson, to be established for an initial period of 18 months from the date of adoption of this resolution, and requests the Secretary-General, in close consultation with the Committee, to appoint an eminent individual of high moral character, impartiality and integrity with high qualifications and experience in relevant fields, such as legal, human rights, counter-terrorism and sanctions, to be Ombudsperson, with the mandate outlined in annex II of this resolution, and further decides that the Ombudsperson shall perform these tasks in an independent and impartial manner and shall neither seek nor receive instructions from any government.

The Annex referred to in the Resolution sets out in detail the role of the Ombudsperson. The office has a fact-finding role and also acts as an intermediary between the petitioner and the Committee. Furthermore, under the new procedures, the petitioner’s request will be placed on the Committee’s agenda (a privilege that was not guaranteed under the previous rules). However, the key provision in the entire Annex is contained in Article 10: ‘the Committee shall decide whether to approve the delisting request through its normal decision-making procedures’. As such, despite the improvements, the fundamental flaw of the regime – the diplomatic means by which it operates – remains.

At the EU level, Regulation 881/2002 has been amended by Regulation 1286/2009. The new regulation inserts an Article 7(a) in the principal law. Article 7(a) requires the Commission to ‘take a decision’ to include any person, entity, body or group listed by the Sanctions Committee once a statement of reasons has been released. The Commission must communicate the decision to the listed person and provide him with an opportunity to express his views. Following the receipt of any observations, the Commission must forward the observations to the Sanctions Committee and review its decision. The results of the review must then be communicated to both the listed person and the Sanctions Committee. A further review can only be carried out following the presentation of ‘substantial new evidence’. Article 7(c) provides for the same means of review to be made available to those who have already been listed by the UN and EU.

Whether this development will result in substantially better due process at EU level remains to be seen. To date, the Council has only grudgingly improved its procedures in response to the Kadi decision (as even a cursory reading of Othman, Hassan or Ayadi will demonstrate). However, the new regulation does appear to require the Commission to take an independent decision on listing. Such a decision presents clear scope for further judicial review at EU level. An independent decision by the Commission will be subject to review by the Court. If nothing else, the new regulation is therefore likely to bring closer the day when the Court will have to decide whether or not it will engage in substantive review of the sanctions in individual cases (to date its decisions have been limited to procedural review). Such a decision will provide a better understanding of the Court’s thoughts on the relationship between fundamental rights and national security than has been available to date.

The reassertion of the rule of law is inching forward. However, for Mr Ayadi and others like him, the factual situation remains the same. Mr Ayadi’s assets have been frozen for over seven years. He cannot face his accuser. His best hope for the unfreezing of his assets is still through the diplomatic processes of the Sanctions Committee.  A narrative summary of the reasons for his listing is now publicly available on the UN Sanctions Committee website and includes the following:

At the time of his appointment by Qadi as Muwafaq’s European director, Al-Ayadi was operating under agreements with Bin Laden. Al-Ayadi went to Afghanistan in the early 1990s to receive paramilitary training, and then went to Sudan with others to meet Bin Laden, with whom they concluded a formal agreement regarding the reception and terrorist training of Tunisians. They later met with Bin Laden a second time, securing an agreement for Bin Laden collaborators in Bosnia and Herzegovina to receive Tunisian fighters from Italy.

It is yet another peculiar feature of this dubious regime that an attempt to improve transparency and due process has resulted in what is – if the summary is untrue – defamation of the highest order. The next chapter in this story will be provided by the General Tribunal’s decision in Mr Kadi’s challenge to his relisting. Mr Ayadi – and the rest of us – await the judgment with interest.