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EU Counter-Terrorist Policies and Fundamental RightsThe Case of Individual Sanctions$

Christina Eckes

Print publication date: 2009

Print ISBN-13: 9780199573769

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780199573769.001.0001

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European Sanctions against Individuals: Classification and Origins

European Sanctions against Individuals: Classification and Origins

Chapter:
(p.12) 1 European Sanctions against Individuals: Classification and Origins
Source:
EU Counter-Terrorist Policies and Fundamental Rights
Author(s):

Christina Eckes

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199573769.003.0001

Abstract and Keywords

This chapter distinguishes the two types of European sanctions against individuals and places them in the international legal context. It briefly discusses the Security Council resolutions that led to the adoption of European sanctions against individuals. It introduces the adoption procedure and the different regulatory measures used to adopt sanctions against individuals in the EU. It further places individual sanctions in the context of other counter-terrorist policies at the international, European, and national level. Finally, the chapter introduces differing assessments of the effectiveness of counter-terrorist sanctions against individuals.

Keywords:   European Union, United Nations, sanctions, terrorist suspects, counter-terrorist policy, counter-terrorist measures

Introduction

A plethora of counter-terrorist measures was adopted at the international,1 European,2 and national level3 after the attacks on New York, Washington DC, and Philadelphia on 11 September 2001. Based on considerable political support, these counter-terrorist measures have imposed far-reaching long-term restrictions on human rights. More recently, however, the political atmosphere has changed: today there is increasing pressure on states and international organizations to return to the previously existing human rights standards. The end of fighting terrorism no longer justifies all means.

Lists of terrorist suspects are one means used in the fight against terrorism. The United Nations (UN), the European Union (EU), and some states4 keep lists of private individuals, groups, and organizations that they suspect to support international, regional or national terrorism. Besides the public stigmatization as terrorists, these persons, groups, and organizations are then typically made subject to sanctions in the form of asset freezes and travel bans. The UN lists are given effect at the domestic level. The actual (p.13) sanctions are adopted either by the UN member states, or in the case of those states that are both members of the UN and the EU, by the EU.

When individuals are listed at the UN level this directly impacts on the rights of individuals. UN sanctions require the UN member states to freeze the financial resources of particular individuals without leaving these states any scope of discretion. The UN sanctions against individuals lead to an increasingly close interaction between the different layers of law (international, European, and national), both at the implementation stage and at the judicial review stage. And, although individual responsibility is a development that can be witnessed more broadly under international (criminal) law, a comparison between individual sanctions and international criminal responsibility before international tribunals or the International Criminal Court (ICC) should not omit that international tribunals and the ICC are set up as judicial bodies with the greatest intention of impartiality, not political judgment.

This first chapter places individual sanctions among other counter-terrorist efforts made both internationally and domestically. It examines the nature of individual sanctions and introduces their adoption procedure. Further, it gives an overview of counter-terrorist activities at the UN, the European, and the national level. Later chapters will then turn to specific issues concerning individual sanctions and discuss the consequences of the interaction of these three layers of law. Chapter 5 will, for instance, examine to what extent the protection from individual sanctions giving effect to UN lists of terrorist suspects5 depends on the relevance of international law for judicial review in domestic courts. Since domestic courts – both at the EU and national level – are called upon by individuals to protect their rights, much depends on how these courts place themselves in the larger structure of overlapping layers of international, European, and national law. At the same time, all individual sanctions, irrespective of the level at which they originate, raise difficult questions of how to fight terrorism effectively without violating human rights.

The structure of Chapter 1 is as follows. Section One identifies critical differences between state sanctions and individual sanctions. Individual sanctions do not constitute decisions of foreign policy, but resemble criminal law. Because of their direct legal effects on those listed and sanctioned the adoption and enforcement mechanisms of state sanctions are in many regards inappropriate–in particular, because they do not offer the (p.14) necessary procedural rights. Section Two gives an overview of the two UN sanctions regimes and explains how they lead to the adoption of two different types of European sanctions. Section Three explains the two UN sanctions regimes in more detail. The first UN sanctions regime is adopted under Resolutions 1267,6 1333,7 and 1390.8 This is the regime where the UN identifies terrorist suspects and obliges the UN member states to sanction them. The listing and delisting procedures and the possibilities to apply for humanitarian exemptions are briefly described. The second sanctions regime is adopted under Resolution 1373.9 Under this second regime, it is for the UN member states to draw up lists of alleged terrorists. Finally, questions are raised concerning the legitimacy of adopting individual sanctions at the UN level, in particular regarding the lack of procedural rights. Section Four addresses how individual sanctions are adopted under EU law, including the range of different instruments used. The analysis distinguishes between the two sanction regimes. Section Five examines the implementation of both UN Security Council resolutions and European law measures under national law. Particular attention is paid to the sharing of tasks between the EU and its Member States. Section Six places individual sanctions in the wider context of the fight against terrorism at the UN level, at the EU level, and at the national level. It introduces other counter-terrorist policies and examines to what extent individual sanctions complement these policies. Moreover, it delineates in what way individual sanctions differ from other counter-terrorist measures. Finally, Section Seven briefly addresses the effectiveness of asset freezes. Prima facie it appears that the ‘assault on terrorist finances’10 has not slowed down the occurrence of terrorist attacks since 2001;11 even though the hypothetical number of attacks if no attempts had been made to reduce terrorist finances is, of course unknown.

(p.15) 1. Traditional Sanctions Light?

Sanctions have undergone great changes since the UN adopted the first sanctions against South Rhodesia in the period from 1965 to 1979.12 Originally adopted as blunt instruments aimed at putting economic pressure on states as a whole, sanctions became increasingly sophisticated in who they target. First, comprehensive trade embargoes exempted trade with humanitarian goods. Then, trade embargoes changed to asset freezes and travel bans against leading regimes, government officials, and their families and supporters. Today, a specifically designed Sanctions Committee draws up lists of private individuals suspected to support Al-Qaida or the Taliban (UN Sanctions Committee).

Over time, comprehensive state sanctions were reconsidered because of their limited effectiveness and the massive collateral damage to human rights that they caused amongst entire populations.13 The limited effectiveness of state sanctions was to some extent attributed to enforcement difficulties.14 Moreover, while the leading classes find sophisticated ways of circumventing trade embargoes, usually the wider population suffers most. The most widely used negative example of ineffective state sanctions continues to be the sanctions against Iraq.15

(p.16) Originally, sanctions against individuals were designed to address the shortcomings of state sanctions. The first sanctions against individuals were aimed at the political elites of countries that were or would have earlier been targeted by state sanctions. Later, the nature of individual sanctions changed with the change of what is thought to constitute a ‘threat to the peace’ within the meaning of Article 39 UN Charter. Today, they aim to affect those who are personally contributing to the situation that the sanctions intend to change – either the political situation in a specific country or terrorism. In many ways, individual sanctions avoid the problems of state sanctions. They do not deprive entire populations of access to basic goods. Hence, they do not have the same ‘collateral damage.’ Additionally, individual sanctions were strengthened through the introduction of new enforcement mechanisms. To ensure the highest effectiveness, the Security Council created two committees that monitor individual sanctions and make suggestions for improvement.16

Some definitions are in order. The ‘sanctions’ examined in this book are coercive measures directed against individuals and legal entities. By way of comparison, reference is made to sanctions against states, which are sometimes also called embargoes or trade sanctions. In international law the term ‘sanction’ is sometimes also used for ‘counter-measures’ or ‘acts of retorsion‘. These measures however do not fall within the scope of this book. The terms ‘individuals’ or ‘persons’ refer to both natural and legal persons, except for where otherwise indicated. Finally, although ‘fundamental rights’ and ‘human rights’ can be distinguished based on whether rights are guaranteed by a state (fundamental rights) or whether they pertain to a person because of her quality as person (human rights)17 both terms are used interchangeably in this book. By tendency, ‘fundamental rights’ is used more widely in the discussion of the domestic context (European law and national law), while the term ‘human rights’ is more often used in the discussion of international law.

(p.17) The impact that individual sanctions have on human rights is subject to an ongoing debate. On the one hand, the terms ‘smart sanctions’18 or ‘intelligent sanctions’ reflect the assessment of a considerable number of both academics19 and policy makers20 that sanctions against individuals are a better choice than state sanctions. On the other hand, the term ‘blacklisting’21 is used to indicate arbitrariness and lack of judicial control over procedure by which the individuals and entities are identified. Both terms are avoided in this book. Instead, the (value neutral) terms ‘sanctions against individuals’ and ‘individual sanctions’ are used.

It is perilous to see individual sanctions as a ‘light version’ of state sanctions.22 They also violate human rights, only in a different way. Individual sanctions are a unique example of how singularized private individuals are directly made subject to binding unilateral decisions of an international organization. Security Council resolutions in combination (p.18) with lists of individuals drawn up by the UN Sanctions Committee target individual persons and oblige the UN member states to sanction them without any room for discretion.23 At the same time, only states continue to have the status of legal subjects at the UN level; and, only states are able to take legally relevant action from the perspective of the UN Charter.24 This discrepancy between the effects that international law has on individuals’ rights and their possibilities of legal redress violates the human rights of those individuals that are the subject of international sanctions. Yet beyond this, it also sacrifices well-established rights standards on the altar of security and international cooperation, and changes the rights-based system of states purporting to govern under the rule of law.

Individual sanctions and state sanctions are so dissimilar that they should be considered distinct in nature. While the difference between the threat posed by a terrorist organization and the threat posed by a state has been highlighted repeatedly,25 the necessary changes in the adoption procedure of counter-terrorist sanctions as opposed to state sanctions have received less attention. A terrorist organization and its supporters are not bound by the same web of civil responsibility that constrains private and public actors in international society; yet, it is not protected by these constraints either.

There are strong economic and political reasons not to sanction a recognized actor of international law. Multilateral state sanctions must strike a balance between the political interests of the sanctioning states. General trade sanctions risk further harming not only the economy of the sanctioned state but also the economy of the sanctioning state; they require a genuine economic sacrifice.26 The impact on their own economy is decisive for states when determining whether to adopt state sanctions.27 The deterring force is greater, the stronger the economic ties between the (p.19) two states are. Yet, the impact of the sanctions on the targeted state also grows with the economic relevance of the sanctioning state for the former’s economy. The EU’s practice of sanctioning states has, for instance, been criticized for lack of coherency and consistency. Not only a state’s human rights record but also its trade balance with the EU influences the decision.28 Sanctioning terrorist suspects, by contrast, does not usually create a conflict of interests or raise the same foreign policy concerns. Economically, sanctions against terrorist suspects do not impact significantly on the sanctioning state and politically, they are (to a varying degree) in the interest of all states. This is particularly true for the executive branch, which increases the powers over its subjects by adopting individual sanctions.29

As a consequence, it is easier to reach a consensus to target an alleged terrorist than to target a country. This is exemplified by the adoption of sanctions by the EU. While the decision to impose trade sanctions against third states is the result of complicated negotiations between the governments of the 27 Member States, autonomous sanctions against private individuals are usually adopted in the Council as an ‘A-point’ in written procedure.30 This is also to some extent reflected in the much greater support for Resolution 1373 (second sanctions regime) than for Resolutions 1267, 1333, 1390 (first sanctions regime).31 Under the first sanctions regime it is the UN, or indeed the countries represented in the Security Council, which decide who is a terrorist suspect for all the UN member states. The second sanctions regime allows each UN member state to identify their own terrorist suspects. This allows all member states to target their own personae non grata. Individual sanctions appear to be a possible form of action in which the political gains are maximized while minimizing (p.20) the economic sacrifice on the part of the sanctioning state.32 They can also be adopted where the political will to make an economic sacrifice is missing.

The impact on the target also differs considerably from state sanctions to individual sanctions. Sanctioned states are usually much less dependent on the sanctioning states, even where the latter are great economic powers. States are sovereign entities with their own resources and complex economic relations with a multitude of other states. Individuals, by contrast, even though they might have ties with a number of states, are usually dependent on the economic structures in their home country, such as banks or other companies. Where for instance, European sanctions are targeted at individuals residing in the EU, their participation in economic life is completely blocked. They might no longer be able to satisfy even their basic needs, such as nutrition.33 Sanctioned states on the other hand will try to reduce the impact by trading with states that either do not implement or insufficiently enforce the embargo.

Further, the adoption procedure differs greatly. The interruption of economic relations with a state is a highly political decision, typically taken after intense discussion on the international stage. It commonly follows a diplomatic exchange during which the targeted state has the opportunity to take a position on its alleged wrong-doings. Usually, the targeted state can demonstrate compliance with international law in order to avoid being sanctioned.34 This stands in sharp contrast with the adoption procedure of individual sanctions: the listing of an individual at the UN level was originally neither communicated to the affected person,35 nor is the individual listing subject to public debate.

At the European level, changes have been introduced in response to the annulments by the Court of First Instance (CFI)36 and by the European (p.21) Court of Justice (ECJ),37 including that those listed are now provided with a statement of reasons.38 However, those targeted by European sanctions that give effect to UN lists do not have the opportunity to make their views known, either at the UN or at the European level.

Finally, a more technical difference, but perhaps the most relevant one, is the importance of identifying the target. When state sanctions are adopted no identification is necessary. In the case of leading government officials the identification is based on their function, which is comparatively easy. However, when the targeted person is a private individual who has allegedly given financial support to terrorism, the unequivocal identification – besides all human rights concerns – is not only absolutely crucial for the effectiveness of the sanction, but also very difficult.39 The traditional mechanisms, in which state sanctions are adopted, are not equipped to identify alleged terrorists organized in loose networks. Additionally, this strips individual sanctions from a limitation inherent in the nature of state sanctions. While state sanctions or even sanctions adopted against political leaders still have a territorial connection, sanctions against private individuals are not even subject to a geographical limitation. The group of people who could potentially be targeted is open ended, and the criteria on the basis of which someone is identified as a terrorist suspect, either at the UN or at the domestic level, are not clearly defined.40

For all these reasons it is very difficult to compare individual and state sanctions with regard to their impact on fundamental rights. Comprehensive state sanctions have had devastating effects on entire populations. Individual sanctions as a counter-terrorist policy target roughly 1,000 persons at the UN and at the EU level together. Yet, any comparison is likely to disregard the particular and immediate impact on the legal position of those who are subject to individual sanctions and herewith the similarities between individual sanctions and criminal law.41 Because of these differences and because of the difficulties in identifying terrorist (p.22) suspects, individual sanctions cannot legitimately be adopted pursuant to the same rules as state sanctions.

2. Two Different Types of European Sanctions against Individuals

European sanctions against private individuals can be divided into two groups: sanctions adopted against individuals listed at the UN level and sanctions giving effect to autonomous European lists. This distinction reflects the difference between the two sanction regimes of the UN.

The most important formal difference is who identifies the alleged terrorists. Under the first regime, individuals are publicly named as terrorist suspects at the UN level before the EU takes action. Here, the European institutions do not take a discretionary decision, but merely copy the UN lists into European legal instruments and impose sanctions. Under the second regime, the EU Council decides name by name who is publicly alleged to have supported terrorism and should be targeted by restrictive measures. The effects on the listed individual are initially the same: all their financial assets are frozen and their travel is restricted. For effective judicial protection, however, the origin of the listing continues to be relevant.

European sanctions that give effect to UN lists were originally considered to fall outside of the jurisdiction of the EU courts. The CFI rejected reviewing EC regulations because this would entail an indirect review of the underlying UN lists.42 In the appeal decision, the ECJ repealed the CFI’s judgments and ruled that European law measures must be subject to full judicial review. In practice, however, access to the information on the basis of which the listing decisions were taken is significantly more difficult in the international context. Additionally, the obligations of the Member States to give effect to the UN listings remain in place irrespective of the ECJ’s rulings.

(p.23) For sanctions that give effect to autonomous European listings a greater problem lies in the particularities of the European legal system and in the limited competences of the EU courts under the Union pillars. European lists of terrorist suspects are drawn up under the Union pillars, where the EU courts have either no direct jurisdiction at all (second pillar) or no jurisdiction for direct actions by individuals (third pillar).43

Each of the two types of sanctions deals with a different form of terrorism. The UN Sanctions Committee lists ‘international terrorists’ associated with Al-Qaida or the Taliban.44 The EU Council lists predominantly ‘national and regional terrorists’ like ETA, those allegedly involved in terrorism in Northern Ireland, the PKK (the Kurdish Workers Party), the Palestinian Islamic Jihad and the terrorist wing of Hamas. Not all of those identified as terrorist suspects by the EU Council are also listed outside of Europe.45

3. The UN Side of the Game

As of 24 March 2009, the list of terrorist suspects administered by the UN Sanctions Committee contained 507 entries (396 individuals and 111 entities). This can be compared with 482 entries at the end of 2007 with approximately US$85 million in assets frozen in 36 states.46 At the end of 2005, 466 names (347 individuals and 119 entities) were listed and a total of US$93.4 million in assets were frozen in 34 states (belonging to 205 individuals and 118 entities).47 The first report the Monitoring Team issued on 23 August 2004 only made reference to ‘some millions of dollars of assets’ that were (p.24) reported to be frozen by the UN member states.48 However, the Monitoring Team has also repeatedly concluded that the lack of information suggests that the overall total of reported frozen assets is inaccurate and that states have frozen a greater amount of money.49

3.1 UN Lists of Terrorist Suspects – Resolutions 1267, 1333, and 1390

3.1.1 Listing

Sanctions against individuals as a counter-terrorist policy have been part of the Security Council’s sanctioning practice for the past decade.50 They have incited much discussion concerning whether and to what extent the UN Security Council is bound by human rights guarantees, and what the consequences would be if the Security Council was found to act ultra vires.51 It is controversial whether the adoption of individual sanctions is actually covered by the Security Council’s mandate under the UN Charter.52 And, although these questions remain outside the scope of this book, it is useful to keep this controversy in mind when discussing European measures adopted in order to implement UN sanctions against individuals.

(p.25) Following the attacks on US embassies in Nairobi and Dar-e-Salaam in 1998 the UN Security Council had, in a series of resolutions,53 requested the Taliban regime in Afghanistan to extradite Usama bin Laden, to close all the terrorist training camps, and to cease providing sanctuary for terrorists on its territory. After the Taliban ignored all requests for cooperation the Security Council unanimously approved Resolution 1267. Resolution 1267 reinforced these requests and called upon all states, inter alia, to freeze the funds and other financial and economic resources either directly belonging to the Taliban, or from which they might benefit in any way. At the institutional level, Resolution 1267 established the Al-Qaida and Taliban Sanctions Committee,54 whose task it is to manage and monitor the implementation of the sanctions imposed. The Sanctions Committee’s composition is identical to that of the Security Council.

A series of UN resolutions followed Resolution 1267 and reinforced the obligations of the UN member states.55 The UN Sanctions Committee has continued to administer the lists of those allegedly supporting terrorism. Resolution 1333 instructed the Sanctions Committee to maintain, in addition to the Taliban list, an updated list of individuals and entities associated with Usama bin Laden.56 It further imposed travel bans on Taliban officials of a certain rank.57 Resolution 1390 renewed the Taliban and Al-Qaida lists and extended travel and arms embargo sanctions to the listed persons. Furthermore, while Resolution 1333 – despite the fact that it extended to individuals associated with Usama bin Laden, who are not directly linked to Afghanistan – still referred to Afghanistan, Resolution 1390 had no longer any connection with a territory or state.58 Slowly, what started as sanctions against Afghanistan, melted into the broader framework of the response to terrorism.59 Resolutions 1267 and 1333 predated the terrible attacks on New York, Washington DC, and Philadelphia on 11 (p.26) September 2001, while Resolution 1390 was adopted thereafter. However, the sanctions regime introduced by Resolution 1373 appears to be a more direct response to the attacks of 11 September 2001,60 than the rather small changes to the sanctions regime under Resolutions 1267 and 1333.

Sanctions adopted in Resolution 1390 apply for an unlimited period of time, since – despite the review mechanism – by default they remain in place.61 This last novelty is particularly regrettable since it is a step backwards. Time limits had just been introduced for state sanctions62 as a response to the ongoing criticism of their legality.63 What had been considered necessary from a humanitarian point of view in the context of state sanctions has hence been reversed with regard to individual sanctions.

On 8 March 2001 the UN Sanctions Committee published the first list of individuals subjected to the freezing of funds pursuant to Resolutions 1267 and 1333. The list has been constantly reviewed and extended ever since. The Al-Qaida section of the list in particular has undergone numerous amendments. Before, the Al-Qaida and Taliban sanctions against individuals were all limited to senior officials of the targeted regime and their immediate families.64 The scope of the sanctions regime under Resolutions 1267, 1333, and 1390 by contrast is unlimited with regard to the number of potential subjects. They set up a sanctions regime of ‘global reach,’65 which targets individuals other than incumbents of government or their immediate families without any logically inherent limitation to the circle of people that can be declared targets. Under these circumstances the matter of identifying the target and deciding if the gathered evidence is sufficient, plays an even more decisive role. The Taliban and Al-Qaida lists are adopted pursuant to the guidelines of the Sanctions Committee;66 these guidelines determine the details of (p.27) the listing procedure. The Sanctions Committee decides in principle by consensus, which constitutes an exception to Article 27(3) UNC.67 The open-ended circle of potential targets vests the UN Sanctions Committee, which decides on the listings, with unprecedented powers. At the same time, despite the potential scope and impact of its decisions, the UN Sanctions Committee takes a purely administrative role. The names and the appending information have been submitted to the Sanctions Committee by UN member states. The designating state does not share the information that justifies proposing the listing of a certain person to the Sanctions Committee.68 Hence, the Sanctions Committee lists the proposed person without being in the position to judge whether the evidence that the person is indeed involved in terrorism is sufficient and convincing.

With regard to the information required to support a proposal of a particular name the guidelines refer to Resolution 1617.69 In comparison to earlier listing practice under Resolution 1267,70 Resolutions 1526 (2004) and 1617 brought considerable improvements as regards the amount of identifying information provided by the designating state to the Sanctions Committee and by the Sanctions Committee to the implementing member states.71 Resolutions 1617 (2005) further defines ‘“associated with” Al-Qaida, Usama bin Laden or the Taliban’ as including:

  • participating in the financing, planning, facilitating, preparing, or perpetrating of acts or activities by, in conjunction with, under the name of, on behalf of, or in support of;

  • supplying, selling or transferring arms and related materiel to;

  • recruiting for; or

  • otherwise supporting acts or activities of;

  • Al-Qaida, Usama bin Laden or the Taliban, or any cell, affiliate, splinter group or derivative thereof;72

(p.28) As becomes clear from this ‘definition’, the criteria for being listed on the Al-Qaida or Taliban lists remain very broad. It is interesting to consider at what level of suspicion or at which stage of an investigation a UN member state is obliged to submit a listing suggestion to the Committee.73

The information on the basis of which listings are proposed can vary: they can include public sources, such as company registers or newspaper reports, but also secret intelligence material.74 Overall, there is little transparency concerning the evidence required, the sources of information and the advance consultation with other states.75 So far, most suspects appear to have been listed on the initiative of the US.76 Until 2006, Germany had presented about 15 listing requests.77 Each member of the Security Council can object within five working days.78 This strict time limit makes it nearly impossible for states to verify any of the information given or to compare it with their already existing intelligence. Reflecting the spirit of the listings the question is: ‘how one is protected against being included in the list’,79 rather than why one is included. In the UK context, it was appositely observed that ‘there is something distasteful about a process which begins by convicting someone and then proceeds to inquire whether there is a case against them.’80

(p.29) The UN lists of terrorist suspects are published on the internet.81 Originally, these lists only set out the names, aliases, of those listed. Since the adoption of Resolution 1822 in 2008 the Al-Qaida and Taliban Sanctions Committee makes accessible a ‘narrative summary of reasons’ for those listed82 and notifies the member state where the listed person ‘is believed to be located’.83 This member state is then obliged to inform in a timely manner the listed person and to provide those listed with the publicly releasable portion of reasons.84

Pursuant to Resolution 1363 the Secretary General established a monitoring group on Afghanistan. The group has the task of monitoring the implementation of the measures under Resolutions 1267 and 1333. It informs about violations and makes recommendations on how to address them. In its first report, adopted on 14 January 2002, the monitoring group recommended that the asset freezing ‘be maintained and monitored for full compliance’.85 In its second report, adopted on 19 September 2002, the monitoring group even suggested that ‘much greater use’86 be made of the listing practice of the UN. Even though the monitoring group acknowledged that it became increasingly difficult to identify additional funds and resources and ‘that the task is further complicated by the lack of sufficient identifying information’,87 it did not address the implicated matters of human rights protection or recommend any monitoring in this respect. In 2004 the monitoring group was replaced by the ‘Analytical Support and Sanctions Monitoring Team’ (Monitoring Team). The Monitoring Team assists the UN Sanctions Committee more broadly in monitoring the implementation of individual sanctions.88

In the more recent reports the Monitoring Team recalled on several occasions the ‘need to accord with other obligations under international law, including human rights law.’89 It also addressed specifically that (p.30) compliance by the member states depends on whether they perceive individual sanctions not only as an effective tool in the fight against terrorism, but also as a legitimate means.90 The Monitoring Team moreover suggested setting up an automatic review mechanism (on which however the Sanctions Committee failed to reach a consensus).91 Yet, the responsibility of the Monitoring Team is in principle limited to monitoring the effective implementation of individual sanctions.

The protection of human rights in the fight against terrorism has been addressed more generally at the UN level. The post of ‘the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ (Special Rapporteur) was created. This Special Rapporteur specifically addressed the lack of fundamental rights protection from UN sanctions against individuals.92 He examined the practice of placing individuals and entities on terrorist lists, including the procedure of the UN Sanctions Committee,93 and stated clearly that at present the necessary procedures do not exist at the international level and ‘if there is no proper or adequate international review available, national review procedures – even for international lists – are necessary.’94 The Special Rapporteur more specifically suggested that (1) precise definitions should be used for placement on lists; that (2) reviews take place after reasonable periods (6 or 12 months), in order to ensure that sanctions remain temporary and preventive, rather than permanent and akin to criminal punishment; and (3) certain procedural guarantees should be utilized for those placed on lists, including proper notice, the right to judicial review (whether at the national or international level), the right to a remedy if wrongly listed, and the right to humanitarian exemptions, where appropriate.

(p.31) In conclusion, the UN Sanctions Committee lists private individuals who are suspected of supporting terrorism in a closed procedure, without clear evidentiary requirements. These lists are publicly available and contain an official statement that those named are involved in terrorism. The Security Council refers to these lists in binding resolutions adopted under Chapter VII of the UN Charter and compels the UN member states to act upon them by imposing asset freezes and travel bans against those listed.

3.1.2 Delisting

From 1999 to 2002 no mechanism at all existed to remove someone once placed on the list. The UN Sanctions Committee acted under an aura of infallibility. In 2002 the guidelines of the Sanctions Committee first introduced a delisting procedure. However, despite considerable improvements the delisting procedure has always been, and still is, based on diplomatic protection.95 It is not an effective remedy directly available to the individual person. Until December 2006 those listed did not even have the formal right to submit information on their case to the Sanctions Committee. They were forced to rely entirely on their national governments to act as agents for them.

According to the guidelines of the Sanctions Committee, the affected individual can – and always could after the introduction of the delisting procedure in 2002–petition their government of residence or citizenship.96 The petitioned government can then turn to the designating government firstly to seek additional information and secondly to ask it to submit a delisting request. The guidelines stipulate that ‘[i]f […] the petitioned government wishes’ it may submit a delisting request.97 Hence, the requesting government is at the unlimited discretion of the petitioned national government to pursue or drop the delisting request. It is not even bound to decide according to its best judgment of the situation, disregarding diplomatic sensitivity.98 The delisting procedure appears to be based on the assumption that the government of the listed individual is aware of the origin of the proposal. This appears to allow the conclusion that there must be some form of record, stating which country made the proposal to list a particular person. If (p.32) this was not the case those countries that are not represented in the UN Sanctions Committee could not proceed according to the guidelines. Nonetheless, if there is such a record it is not publicly available.

While the possibility to request diplomatic protection from the government of residence/citizenship continues to exist under the new rules, UN Resolutions 173099 and 1735100 introduced changes aiming to improve the participation of the individual and the influence of the particular state that requests a delisting. Resolution 1730 established an administrative body within the Security Council Secretariat, the so-called ‘focal point’. Amongst other tasks, the focal point receives delisting requests from petitioners;101 identifies repeated requests;102 informs the petitioners on the general procedure for processing their request;103 and forwards the requests to the designating government(s) and to the government(s) of citizenship and residence.104 Finally, it informs the petitioners of the decision of the Committee whether or not to grant the delisting petition.105 Those listed by the Sanctions Committee can for the first time directly address a body at the UN level with their delisting requests.106

The introduction of the focal point appears to be a reaction to the widespread criticism of the existing system. It allows individuals to directly submit their petition to the UN and thereby reduces their dependency on their state of residence/citizenship. Still, the focal point is a purely administrative body that is not involved in the ultimate decision on the merits of delisting requests. It cannot even place the request on the Sanctions Committee’s agenda for discussion. The request is placed on the agenda only if either the designating state or the state of residence/citizenship recommends delisting.107 There are no transparent requirements on how to deal with a delisting request submitted by a listed individual, nor is there an obligation for the Sanctions Committee to review such a request at all. The establishment of the focal point is an improvement, but it should not be overrated. It acts as a mailbox (p.33) receiving and forwarding requests of individuals, but it has no influence on the delisting itself. The focal point cannot be regarded as a hearing mechanism at the UN level.

Originally, only the designating government or the government of residence/citizenship could start a re-examination. Now, three months after the request was forwarded to these governments, any member of the Sanctions Committee can require the Sanctions Committee to deal with the request if the former did not react.108 Nonetheless, if the designating government does not agree to the delisting, it appears nearly impossible to achieve removal; in particular if the suggesting government is one of the permanent members of the Security Council. The decision to remove a person from the list is taken in a silent non-objection procedure. This requires that none of the members of the Sanctions Committee – identical to those in the Security Council109 – object. Hence, the designating government, which just refused to file a delisting request, must at least not vote against the delisting.

So far, only very few individuals have been successful in their efforts to be delisted,110 and there is only limited evidence of states taking action for their citizens. One illustrative example is the delisting of three Swedish citizens:111 Abdirisak Aden, Abdi Abdulaziz Ali, and Yusuf Ahmed Ali.112 They appeared on the UN list for the first time on 9 November 2001.113 The Swedish government approached the Sanctions Committee and the US for further information. After receiving information on the listing, the Swedish government declared this information to be insufficient to confirm the accusation.114 Sweden's intelligence agency drew the conclusion that there was not enough information to trigger prosecution and Sweden's ambassador to the UN publicly declared that the information that Sweden received from the (p.34) US was ‘unconvincing’.115 The apparently unsatisfactory evidential standard raises concerns regarding the legitimacy and autonomy of the UN, which relies on unscreened information of its member states. The credibility of this ‘decision-making’ authority is called into question. On 22 January 2002 the Swedish government requested the revision of the UN sanctions list.116 The Sanctions Committee refused to remove the concerned individuals on 5 February 2002.117 Abdi Abdulaziz Ali and Abdirisak Aden were removed on 26 August 2002, after nearly one year on the Al-Qaida section of the UN list of terrorist suspects.118 After five years, Ahmed Ali Yusuf was finally also removed from the list on 24 August 2006.119 The appeal in the case of al-Barakaat, filed together with Yusuf’s appeal, was decided by the ECJ on 3 September 2008.120 Yet, despite the ruling in the appellants’ favour their names remain listed and their assets remain frozen.121 A period of time that may seem like an eternity to the targeted person is very short in international relations.122

Several courts have commented on the delisting procedure in proceedings against domestic measures implementing UN sanctions. Most prominently, the ECJ remarked in Kadi and al Barakaat that the delisting procedure before the Sanctions Committee is ‘still in essence diplomatic and intergovernmental’ and does not amount to effective judicial protection (irrespective of the improvements under Resolutions 1730, 1735, and 1822).123 The UK Court of Appeal held even more explicitly that the UN Sanction Committee’s delisting procedure ‘does not begin to achieve fairness for the person who is listed’.124 The Swiss Supreme Court examined the improvements under Resolutions 1730 and 1735 (not yet those under Resolution 1822) and concluded that the delisting procedure still suffers (p.35) from serious shortcomings.125 Yet, the Swiss Supreme Court also held that the listing procedure does not violate jus cogens.126

The UN Human Rights Committee considered a violation of the fair trial guarantees in Article 14(1) of the International Covenant on Civil and Political Rights 127 in the case of two Belgians who were listed following a request by the Belgian government.128 The Committee found that the listed individuals in question ‘did have an effective remedy, within the limits of the jurisdiction of the State party’.129 It accepted ‘the assertion of the State party’ that they could take the state party to court and ‘obtained an order requiring it to submit a delisting request to the Sanctions Committee’.130 This particular case is exceptional because the authors of the complaint were listed based on the request by their own government, which–following the court order–also filed a delisting request. However, considering the fact that despite Belgium’s delisting request the authors remained listed the result might surprise. Irrespective of whether individuals have an effective remedy within a national jurisdiction to compel their government to file a delisting request, the request itself is not an effective remedy against the listing at the UN level. This is where the effectiveness of the remedy ends.131

In the delisting procedure, the Sanctions Committee remains iudex in causa sua. Apart from a number of recommendations,132 no procedural standards of examination have been established–nor clear criteria that have to be met to be removed from the list. Instead of providing for an effective remedy the delisting procedure at the UN level is based on a reversal of the presumption of innocence. It does not provide an effective remedy.

(p.36) 3.1.3 Exemptions and Qualifications

More than 20 months after the Sanctions Committee drew up the first list of terrorist suspects on 8 March 2001, Resolution 1452133 introduced the possibility to request humanitarian exemptions. It provides for partial exceptions to the freezing of assets when such money is deemed to be necessary for basic expenses to satisfy essential human needs, such as ‘foodstuffs, rent or mortgage, medicines […], taxes, insurance premiums, and public utility charges […]’.134

The exemption procedure established by Resolution 1452 is a further example of the underlying concept of representation of the individual by their government of citizenship/residence. The latter may notify the Sanctions Committee of its intention to introduce an exemption. The Sanctions Committee can then deny this exemption within three working days.135 The individual concerned has no say in the process at all. Further, the possibilities for legal persons to qualify for an exemption remain entirely unclear.136

Humanitarian exemptions are considered to have been introduced as a consequence of the political pressure exercised by individual states through political channels at the UN.137 Already before Resolution 1452 there was evidence of member states allowing for humanitarian exemptions on a unilateral basis.138 These unilateral exemptions appear to demonstrate that some states are aware of the implications of individual sanctions for human rights. They made a timid attempt to improve the conditions of those listed, both by trying to introduce changes at the UN level and by deviating from the UN sanctions regime. At the same time, there is evidence of states applying the sanctioning regime, including the exemption procedure ‘deliberately draconian’.139 For example, the UK Treasury had interpreted the UN sanctions regime to cover social security benefits paid to the spouses (p.37) of those listed and required the spouses to apply for humanitarian exemptions to receive the payments. The UK Court of Appeal agreed with the Treasury’s interpretation, but Appellate Committee of the House of Lords disagreed and suggested submitting a preliminary ruling request to the ECJ.140

3.2 The General Call to Fight Terrorism – Resolution 1373

Besides listing individuals as terrorist suspects at the UN level, the Security Council has also called upon its member states to fight terrorism in a more decentralized way. Resolution 1373 obliges the UN member states inter alia to identify terrorist suspects and to freeze their financial resources.

After the attacks of 11 September 2001 a new chapter on sanctions against individuals was opened. On 12 September 2001 the UN Security Council adopted Resolution 1368 defining the terrorist acts of 11 September to be a threat to peace under Article 39 UN Charter.141 This was much criticized for being ambiguous and contradictory.142 Yet, despite the criticism, Resolution 1368 had enormous consequences. It opened the gate to a whole new set of measures, including Resolution 1373, which stipulates ‘that all States shall […] prevent and suppress the financing of terrorist acts’. The latter resolution created the Counter-Terrorism Committee (CTC) and imposed an obligation – besides criminalizing the financing of terrorism – to freeze and seize funds associated with terrorism.143 The most important difference between Resolution 1373 on the one hand and Resolutions 1267, 1333, and 1390 on the other, is that the former does not contain an annexed list. The CTC is not mandated to draw up lists of terrorist suspects. It only assists and monitors the UN member states’ (p.38) listing activities. However, Resolution 1373 might be the most sweeping sanctioning measure ever adopted by the Security Council.144

Resolution 1373 does not fit into the pattern of earlier sanctions resolutions.145 Presumably, the potential group of targeted individuals had been at least somewhat limited by the requirement that those listed were ‘associated with’ the Taliban or Al-Qaida. Resolution 1373 dropped this last – albeit weak – restriction. It supplies the member states with new options for action, but fails to confine its scope of application. They are required to ‘prevent and suppress the financing of terrorist acts,’146 but at the UN level there is not even a uniform definition of what constitutes ‘terrorism’.147 This makes Resolution 1373 open to unilateral interpretation in the light of national interests. All measures taken to implement it, including European sanctions against individuals, have to be seen against this background. It is further remarkable that while the measures in Resolutions 1333 and 1390 were made subject to review after a period of 12 months,148 Resolution 1373 does not require review after a predefined period.

The Security Council was much criticized for adopting Resolution 1373.149 It is considered to be a new and more principled exercise of power, (p.39) which is, according to many, incompatible with the Security Council’s mandate to act in response to specific situations rather than imposing general guidelines.150 At the same time, this new development was welcomed by some authors as equipping the Security Council with a new effective tool to fight terrorism.151

There are many reasons to question the Security Council’s competence to pass Resolution 1373. The Security Council could indeed be criticized for having assumed the role of a ‘world legislator’ by declaring the International Convention for the Suppression of the Financing of Terrorism binding on all UN member states.152 The Security Council’s powers under Chapter VII of the UN Charter are confined to specific situations and for the time until the threat to peace and security has ceased to exist.153 The adoption of general rules for an unlimited period of time is not obvious under Chapter VII.154 However, it must be conceded that classical international law-making processes, the adoption of treaty law and the establishment of customary law, appear inadequate for a quick and detailed response to terrorism.155 The UN Charter is subject to dynamic interpretation and state practice has an influence on the actual reading of the Charter. Nonetheless, it should be reiterated that only 15 member states (p.40) are represented in the Security Council,156 while the UN currently has 191 members.157 For this development to become a modification of the norms of the UN Charter through practice, it must continue to go unchallenged.158 In this regard, some authors suggested that the General Assembly could be given the task of ratifying ex post the Security Council’s ‘legislation’ to increase its legitimacy.159

3.3 Concluding Remarks

The two UN sanctions regimes are assessed and contrasted in very different ways. Some authors consider Resolution 1373 to be ‘the next step’, constituting a counter-terrorist policy that is ‘no longer limited in time or in scope’, applicable ‘to all states of the world regardless of a specific conflict’.160 They criticize the increasing powers of the Security Council. Other authors regard the evolution from Resolutions 1267 and 1333, drawing up a centralized list, to the more general ‘legislative’ Resolution 1373, as a reaction to member states’ resistance and human rights concerns.161

When evaluating the threat to fundamental rights resulting from individual sanctions some authors exclusively focus on Security Council resolutions that directly list a group of persons, without a single reference to Resolution 1373,162 while others mention the Resolution 1373 sanction regime163 but (p.41) discuss it separately with emphasis on the human rights situation at the domestic implementation level.164 Some of the fundamental rights concerns obviously shift away from the UN level to the domestic level when the identification of those listed takes place under the Resolution 1373 regime. A decentralized sanctioning regime similar to Resolution 1373 was even thought to have ‘major advantages from the perspective of legal safeguards’.165

Resolutions 1267, 1333, and 1390 oblige the UN member states to adopt restrictive measures against a clearly determined group of people. The UN directly identifies particular persons who will be affected. A review mechanism exists, but by default the measures remain in force indefinitely. The identification procedure remains obscure and delisting decisions depend on the will of those states who decided on the listings in the first place. The UN Sanctions Committee exercises a purely administrative function when adopting the list of terrorist suspects. It does not take informed decisions, but vests routinely the decisions of individual states with universal validity for all UN member states. Empowered by the Security Council the Committee’s decisions on who must be targeted have binding force. In light of the fact that the circle of potential targets is neither geographically, nor temporarily limited and extends to ordinary citizens, the impact of the Security Council’s actions can hardly be overestimated. Resolutions 1267, 1333, and 1390 were considered to empower states to limit human rights in an unprecedented form.166

Resolution 1373, by contrast, remains at a more general level. It obliges member states to take actions that they previously had to consent to in international conventions in order to be bound.167 The Security Council assumed with Resolution 1373 an unprecedented quasi-legislative function. (p.42) It expanded its powers by creating a new general form of binding rules. In the past the Security Council adopted sanctions against states, governments or elite groups in possession of governmental powers. It carried out executive tasks, rather than legislative tasks.

Most situations discussed in the Security Council are highly contentious. The discussion takes place behind closed doors.168 Its decisions are of widely felt consequences. The Security Council is equipped to take ‘prompt and effective action’169 in response to international crises. This role as a ‘policeman’170 is what disqualified the Security Council in the eyes of some authors to reflect on general guidelines for the approach to comprehensive situations.171 Resolution 1373 could be seen as a more far-reaching limitation of the sovereignty of UN member states.

When the Security Council directly lists terrorist suspects it exercises an executive function: it strikes a limited circle of persons with clearly formulated repressive measures. In this respect listing individuals as terrorist suspects is in closer compliance with the spirit of the UN Charter. However, these legal instruments are of the same quality as national law, both as concerns the detail and the subject matter (criminal law) of these instruments. At the time when the UN Charter was adopted, no one thought of these or similar instruments ever being passed at the UN level. It is too simple to argue in favour of lists of terrorist suspects at the UN level only because from the point of view of the member states they impose less far-reaching obligations. They pierce the sovereignty of states differently in that they immediately change the legal position of a state’s citizens. Moreover, despite the criticism that Resolution 1373 limits state sovereignty further than any other resolution before, the general perception is that the political support of Resolution 1373 is ‘significantly greater’ than (p.43) for sanctions directly targeted by the UN.172 The quality and quantity of reporting by the UN member states has ‘increased dramatically’.173

Resolution 1373 creates a comprehensive obligation to criminalize the support of terrorism. The actual identification of terrorist suspects takes place at the national and regional level, where it can be made subject to judicial review.174 Hence, those sanctioned have the opportunity to challenge directly the allegation to have supported terrorism. Leaving aside institutional considerations and taking the perspective of the affected individual, Resolution 1373 does not go a step further; on the contrary, it takes a step back. It limits the direct effects of Security Council action on the person’s legal position. From a human rights point of view this is a welcome development. Resolution 1373 does not have an immediate impact on the legal position of the individual.

4. European Sanctions against Individuals

Sanctions against individuals adopted under European law reflect the two UN sanctions regimes: on the one hand, Resolutions 1267, 1333, and 1390 targeting particular individuals related to the Taliban and Al-Qaida and, on the other, Resolution 1373 calling more generally for a fight against terrorism and in particular the financing of terrorism. Under the first sanctions regime the EU reproduces the UN lists and adopts restrictive (p.44) measures against those listed, while under the second sanctions regime the EU draws up its own lists of terrorist suspects.175

Both types of European measures are based on a joint legal basis of Articles 301, 60, and 308 EC. The two-tiered procedure is set out in Article 301 EC. First, the Council adopts a ‘strategic decision’ to adopt individual sanctions in a common position or joint action under the second pillar (Common Foreign and Security Policy (CFSP)). This CFSP instrument is then implemented by a Community regulation. In practice the decision to adopt sanctions has so far always been taken in a common position. The actual operational measures, such as asset freezes and travel bans, are adopted in the following EC regulations. The latter are directly applicable and constitute the immediate legal basis for national implementation measures; they leave no discretion to national authorities. Member States then adopt under national law so-called ‘secondary sanctions’ imposing criminal charges for the infringement of the Community measures. They further use third pillar mechanisms in order to assist each other in the gathering of information and to exchange information that may lead to a listing at the European level.

4.1 European Sanctions Implementing UN Sanctions

The first EU instruments containing sanctions against individuals were adopted to implement Resolutions 1267 and 1333.176 Considering that action by the Community was necessary, the Council adopted restrictive measures. The first individual sanctions were adopted not only pursuant to the same procedure but also on the exact same legal basis as sanctions against states, namely Articles 60 and 301 EC. Later in EC Regulation 881/2002, Article 308 EC was added. The changes in the first sanctions regime adopted under Resolutions 1267, 1333, and 1390 are reflected in the European legal instruments implementing them. The CFI acknowledged in this regard that EC Regulation 881/2002 brought about ‘a distinct change in the […] legal position’ of those sanctioned as compared to their legal position under the earlier EC regulations.177 The Court pointed in (p.45) particular to the different titles,178 preambles179 and material provisions,180 but also to the fact that Regulation 881/2002 had a more extensive temporal scope.

The CFSP common positions required by Article 301 EC for adopting restrictive measures under the first pillar contain an exact copy of the UN lists. They are adopted pursuant to Article 15 TEU.181 The EC regulations implementing these common positions then either contain the (identical) list itself,182 or rely on Commission regulations183 to set out the circle of persons affected.

The amendments to the UN lists are not automatically incorporated into European law. They have to be implemented by domestic European legislation. So far, however, the Commission has faithfully copied every single amendment of the UN lists of terrorist suspects. In challenges to individual sanctions the institutions have not denied ‘the applicants' claim that they did not check whether the names on the list drawn up by the Taliban Sanctions Committee had been included justifiably’.184 On the contrary, they stated ‘that they are under a mandatory duty’ to adopt sanctions against the individuals listed by the UN Sanctions Committee.185 (p.46) Therefore, it can be assumed that the European institutions did not exercise any form of scrutiny, nor did they usually possess or attempt to obtain the information on which the sanctioning decision is based.186

The CFI has given a series of judgments on the legality of European sanctions giving effect to UN lists of terrorist suspects.187 It denied jurisdiction because of the UN origin of the measures. The ECJ however has repealed the CFI’s rulings on appeal.188 Further actions are pending both before the CFI189 and before the ECJ.190

In principle, the ECJ confirmed in Kadi and al-Barakaat that European sanctions giving effect to UN lists of terrorist suspects infringe the procedural rights of those listed and sanctioned.191 Even though this might not place the European institutions under an immediate legal obligation to re-examine all listings, the European sanctioning procedure would have to be changed in order to avoid a series of successful challenges by those whose listing is tainted with the same procedural defects. Following the ECJ’s ruling the institutions have introduced changes to the listing procedure.192 Yet, under the UN-based sanctions regime the institutions simply implement the decisions of the UN Sanctions Committee. It remains doubtful whether they are actually in the position to offer effective procedural protection – in particular, whether they have access to the necessary information.

4.2 Autonomous European Sanctions

The general obligation to freeze financial assets of terrorist suspects under Resolution 1373 was implemented by the EU Council in Common (p.47) Position 2001/931/CFSP193 and EC Regulation 2580/2001.194 The European instruments autonomously identify those subject to so-called restrictive measures (sanctions) in an annex. Common Position 2001/931/CFSP is a cross-pillar instrument based on Article 15 TEU (second pillar) and Article 34 TEU (third pillar). It provides for measures in all three pillars. In the first pillar the common position initiates concrete measures, like the freeze of funds by the Community (Articles 2, 3); in the third it calls upon the Member States to exchange information (Article 4). More generally, it stipulates a definition of ‘terrorist act’ (Article 1), which is applicable across all three pillars.195 Finally, the common position serves as a CFSP decision within the meaning of Article 301 EC and allows the Community to adopt individual sanctions against those listed in its annex.

This list has been updated in numerous common positions.196 In the beginning, amendments to the list were discussed in an ad hoc forum set up (p.48) by COREPER,197 known as the ‘clearing house’, which consists of representatives of the Member States and the Commission. In June 2007, the Council established a permanent Working Party (CP 931 WP) and introduced some basic procedural safeguards.198 However, the basic procedure has not changed. Names are added based on a proposal from one of the Member States,199 after preparation first in the ad hoc forum and now in the Working Party. The Council takes the final decision on any listing. The process also continues to take place without consultation of the European Parliament, which expressed regret over the Council's failure to consult it.200 A unanimous decision of the Council is required in order to amend the list.201 Article 1(6) of Common Position 2001/931/CFSP provides every six months for a revision of the list, while the process of removing a specific name is not explicitly outlined. Therefore, according to the general amendment rules, it requires unanimity, which gives one Member State the power to keep the sanction system indefinitely in place with regard to a specific person. The listing practice of terrorist suspects in CFSP decisions reflects the political consensus surrounding individual sanctions. Usually, the competent national authorities conduct an investigation and decide whether to propose a specific name to the other members of the Working Party. After a proposal is made the representatives have two weeks to consult other governmental officials. The formal decision is then taken in the Council by written procedure if there are no objections (A-point).

In the case of OMPI III 202 the applicant alleged that the voting process within the Council on draft Community decisions containing lists of terrorist suspects was irregular. The allegation was based on a statement of the UK Minister of State to the House of Lords, in which he explained that the UK abstained during the vote on a new Council decision instead of opposing it, because the vote took place with regard to the ‘total list with all terrorist organisations on it’.203 The Minister of State explained that (p.49) voting against the new list as a whole would make its adoption impossible, which would lead to ‘the unpalatable situation that either the old list would be retained…, or we would have been left with no listed terrorist organisations in Europe’.204 Assuming that the Minister’s explanations before the House of Lords correctly reflect the voting practice, this means that at least at the voting stage Member States are not in the position to oppose an individual listing. In the proceedings before the CFI however, the Council submitted that (assumingly before the voting stage) ‘each member of the Council has the right to express itself on all of the entries on the list individually and to indicate its position in relation to all or any of those entries.’205 The CFI rejected the applicant’s plea for lack of objective evidence.206 The Court further added that Member States received an extension for commenting on new information concerning a particular listing. This indicated – in the Court’s view – that the Member States retained the possibility to oppose this listing.207

Common positions adopting autonomous European lists of terrorist suspects are cross-pillar instruments based on a combined legal basis of Articles 15 and 34 TEU. The legal basis in the third pillar is necessary because of the exchange of information and mutual assistance with investigations where the lists are autonomously drawn up on the basis of information provided by the EU Member States. Article 4 of Common Position 2001/931/CFSP stipulates that Member States shall afford each other particular assistance with regard to the persons listed in the annex. Council Decision 2003/48/JHA208 provides for third pillar measures strengthening police and judicial cooperation in respect to groups, organisations and individuals in order ‘to combat terrorism in accordance with Article 4 of Common Position 2001/931/CFSP’. However, mutual cooperation appears already useful and necessary prior to the listing pursuant to Article 1(4) of Common Position 2001/931/CFSP. At this stage, Member States already assist each other with their investigations.

Regulation 2001/2580/EC implements the CFSP aspects of Common Position 2001/931/CFSP. It is based on Articles 301, 60 and 308 TEC. (p.50) Recital 15 stipulates that the persons and groups listed in Resolutions 1267 and 1333 are not covered by this regulation. Hence, if the UN subsequently listed someone already on an autonomous European list, the person would automatically fall within the sanctions regime under Resolution 1267. The list of persons, groups, and entities to whom Community asset freezes apply has so far been contained in a separate Council decision pursuant to Article 2(3) of the Regulation.209 In June 2009, the Council adopted the first Council regulation to implement Article 2(3) of Regulation 2580/2001/EC.210 The regulation is ‘binding in its entirety and directly applicable in all Member States’.211

In principle, the adoption mechanism and the instruments used to adopt sanctions giving effect to European lists is the same as the mechanism and instruments used to adopt sanctions based on UN lists. There are only two formal differences. First, the common positions containing autonomous lists are based on Articles 15 and 34 TEU; they combine second and third pillar elements. Secondly, the EC regulations implementing them are applicable to a list of persons adopted in a Council decision (now regulation),212 rather than a Commission regulation.213

The Community law instruments copy CFSP lists and freeze the assets of those listed. However, Common Position 2001/931/CFSP sets out that some of those listed in the common position should not be made subject to Community asset freezes, but remain subject to operational measures under the third pillar only.214 Consequently, the lists adopted in the CFSP (p.51) common position and those in the legal instruments adopted under the Community pillar are not always identical. Judicial protection from autonomous European lists of terrorist suspects adopted under the Union pillars remains difficult where no Community law measures are taken with regard to the person seeking protection.215 Particularly, when the Council adopts sanctions based on autonomous European lists of terrorist suspects, it acts in different functions at the same meeting on the same date. It adopts measures against the same list of people216 in all three pillars: CFSP common positions, measures in the area of Police and Judicial Cooperation in Criminal Matters (PJCC) and EC regulations. Here, the legal consequences attached to the choice of pillar in which the measure is adopted appear particularly arbitrary in view of the fact that the stigmatizing effect of being publicly labelled as a terrorist suspect is the same. The CFI has given judgment in a series of cases challenging the legality of autonomous sanctions, including listings both in EC Council decisions217 and in common positions.218 The ECJ has ruled on an appeal against the CFI’s decision to deny judicial review of common positions entirely and allowed for preliminary rulings.219

The autonomous European sanctions regime provides for the possibility of making an application for humanitarian exemptions pursuant to Article 5(2) of Regulation 2580/2001. The applications have to be made to the competent authorities of the Member States.220

(p.52) 5. National Implementation

UN member states have given effect to Security Council Resolutions 1267 and 1333 either through legislation or directly through executive orders.221 The approach differs largely depending on whether the member state implements the resolutions following the procedures for asset freezes in the national, mostly criminal, context or whether they are implemented on the same legal basis as international state sanctions. The difference in choice of procedures reflects the hybrid nature of individual sanctions, containing both elements of criminal law and of international policy decisions. The report of the Monitoring Team identifies three different methods of implementation: based on specialized laws for automatic implementation, through ad hoc executive decisions, or based on the existing criminal codes.222

Those countries that apply the legal provisions adopted for state sanctions usually vest a high political figure with the powers to adopt Security Council sanctions by orders.223 Countries using specialized laws for automatic implementation replace the judicial order usually required for the freezing of assets with the decision of the Security Council and administrative authorities are directly allowed to proceed with the freezing order.224

(p.53) Human rights concerns are repeatedly highlighted in the national reports to the UN Sanctions Committee.225 Yet, they do not appear to have incited significant disobedience. Nonetheless, a number of countries have made efforts to delist individuals and to reform the UN listing procedure.226 Further, some UN Member States derogated from the wording of the UN sanctions resolutions and introduced humanitarian exceptions on a unilateral basis. In Sweden, for instance, individual sanctions adopted in EC regulations are announced in government regulations227 in accordance with the 1996 Act on Certain International Sanctions.228 The Act specifies that a prohibition may not be applied to property that is intended exclusively for the personal use of the owner.229 This general guarantee of a minimum level of income to sustain the necessities of life has always been in place in Sweden, even before Resolution 1452 introduced exceptions to Resolution 1267.230 The granting of welfare benefits may comply with national Swedish law;231 yet, before Resolution 1452 was adopted it was contrary to the UN sanctions regime. Nonetheless, granting exemptions for basic necessities of life concerns a different question and must be (p.54) regarded separately from the listing itself. The listing itself, irrespective of certain exemptions, has an enormous impact on fundamental rights.

In the UK freezing orders are adopted under the national framework legislation for sanctions (section 1 of the 1946 United Nations Act). The powers were introduced to give effect to Security Council resolutions. Sanctions are adopted through orders in Council rather than statutes. This excluded any parliamentary debate on the issue. At the time the 1946 United Nations Act was adopted the only sanctions that the legislator could foresee were generally applicable legislation dealing with the situation in a country (trade embargoes). Today, the Security Council adopts sanctions against individualized persons. The implementation of Security Council resolutions on the basis of this framework law, irrespective of the content or legal nature of the implementing act, raises concerns both with regard to the human rights situation, but also with regard to the division of competences in the national legal system.232 The executive is in principle empowered to give effect to any Security Council resolution without requiring the support of Parliament.

Another example of a country giving effect to UN sanctions against individuals based on general framework legislation for sanctions is Germany. Article 24(1) of the German Constitution (GG) allows the transfer of sovereign rights to international organizations.233 The transfer of sovereign rights is commonly interpreted to allow international organizations to exercise jurisdiction with direct effects within the German legal order.234 However, Article 24 GG is not applicable to the UN. Even resolutions adopted under Chapter VII of the UN Charter are not considered to have direct effect within the German legal order.235 Sanctions (p.55) against individuals are adopted based on the Foreign Trade Act,236 which does not contain a specific provision for restrictive measures against individuals but usually serves to adopt state sanctions. This is also the reason why the Foreign Trade Act does not provide for a procedural mechanism of participation for individuals.

In the EU Member States, Security Council resolutions imposing sanctions are not directly implemented at the national level. It is the EU that adopts sanctions in order to comply with the Member States obligations under the UN Charter. It does so pursuant to the above-described procedure in Article 301 EC.237 The adopted EC regulations are directly applicable in the national legal order. Hence, while UN sanctions resolutions are not usually considered self-executing at the national level,238 Community law implementing UN sanctions resolutions becomes directly part of the national legal order. Only for certain subject matters is it accepted that the Member States adopt complementary national measures. For instance with regard to state sanctions, this is the case with trade in weapons under Article 296 EC.239

For individual sanctions, the Member States have so far adopted criminal and administrative punishment in case of violation of the sanctions prohibitions (so-called secondary sanctions). Non-compliance or violation includes any form of assistance, such as holding and transferring funds, or facilitating travel for those listed. In Germany, by way of example, secondary sanctions are adopted pursuant to section 34(4), (7) and (8) of the Foreign Trade Act. They consist of criminal charges complementing the primary sanctions adopted at the European level. The precise content of the elements of the offence are identified by a reference to the relevant EC regulation. Although secondary sanctions are currently adopted by the Member States, it cannot be ruled out that the Community adopts criminal (p.56) sanctions for the violation of the European sanctions regime at some point in the future.240

Moreover, some EU Member States adopted additional national laws for the exchange of data under the third pillar of the European Union. Germany for instance adopted an emergency measure on 9 January 2002,241 which aims more generally to address the ‘new threat’ of international terrorism. Under this law the competences of the national secret service units242 were broadened and restrictions on data collection were loosened. Under the new law, the secret services are enabled to request any desired information from all financial institutions. They can start an investigation without any particular requirements: there is no need for a primary suspicion,243 nor do the secret service units have to give any reason for their action; and even ex-post judicial review is not always available.244 Following a decision of the Council of the Interior and Justice, section 129b was inserted in the German penal code. It extends the investigational powers to foreign associations and furnishes the Ministry with the discretionary power to start an investigation. This is a controversial amendment in light of the historical separation of powers between executive and police forces in Germany.

In conclusion, the UN member states implement UN sanctions against individuals largely pursuant to pre-existing procedures, which were either introduced to adopt state sanctions or belong in the field of criminal law. Yet in a number of states, additional legislation has been adopted to vest the state with additional (mainly investigative) powers in the fight against terrorism. In principle, the EU Member States do not implement UN sanctions against individuals at the national level. They only adopt complementary criminal sanctions. Restrictive measures against those listed by the UN are adopted at the European level. While UN resolutions are not usually self-executing in the national legal orders of the EU Member States, individual sanctions in the EU are adopted by way of directly applicable EC regulations.

(p.57) 6. Individual Sanctions as One Way to Fight Terrorism

6.1 The International Fight against Terrorism

The Security Council’s role in fighting international terrorism did not begin with 11 September 2001,245 but it has dramatically accelerated since. This is the result of an evolution in the nature of terrorism. Its complexity, sophistication, and reach have made it a truly international concern. Numerous counter-terrorism measures have been agreed at the UN level, including most prominently ‘The United Nations Global Counter-Terrorism Strategy’ of 8 September 2006.246 This document is the first agreement of the UN member states on a common strategic framework bringing together all the counter-terrorist activities of the UN. An annexed plan of action divides counter-terrorist measures into four groups according to their operational intent: (1) measures to address the conditions conducive to the spread of terrorism; (2) measures to prevent and combat terrorism; (3) measures to build states’ capacity to prevent and combat terrorism and to strengthen the role of the UN system in this regard; (4) measures to ensure respect for human rights for all and the rule of law as the fundamental basis of the fight against terrorism. The Global Counter-Terrorism Strategy also reflects the more recent development of interlinking the international fight against terrorism with other issues, such as anti-money laundering policy;247 the fight against illicit production and trafficking of drugs;248 and the prevention of conflicts, rather than addressing it as a problem in isolation. The Global Counter-Terrorism Strategy fleshes out the practical work of the (p.58) Counter-Terrorism Implementation Task Force (CTITF).249 The CTITF was established by the Secretary-General in July 2005 with the task of ensuring overall coordination and coherence in the counter-terrorism efforts of the UN system.250

International terrorism has repeatedly been classified as a threat to international peace and security, not only by the Security Council251 but also by the General Assembly252 and independent investigators.253 This classification allows the Security Council to take action under Chapter VII of the UN Charter. Sanctions against private individuals are adopted under Chapter VII.

Individual sanctions are but one means in the comprehensive counter-terrorist strategy of the international community. They consist predominantly of asset freezes, which are aimed at cutting the financial support for terrorist activities and form consequently part of the fight against the financing of terrorism. Another key instrument in the fight against the financing of terrorism is the Convention for the Suppression of the Financing of Terrorism.254 This convention requires states to take appropriate measures for the identification, detection, and freezing or seizure of funds used for the commission of terrorist acts.255 It also requires states to make it a punishable offence to collect or provide funds for use in such terrorist acts. All the EU Member States have ratified and implemented the convention. It takes a criminal law approach to terrorism and was even considered ‘the way forward in effective criminal law cooperation in this field’ that would make the recourse to individual sanctions in the present form unnecessary.256 At present however individual sanctions and measures under the Convention for the Suppression of the Financing of Terrorism are adopted in parallel. While the former start at a preventive (p.59) stage and are partially thought of as preventive257 or precautionary258 measures only, the latter rely largely on prosecution. Yet, the distinction is more complicated. Disastrous terrorist attacks have sowed the seed of great fear among the general public of many countries. Great fear, however, inevitably leads to calls for preventive measures. Punishing the perpetrators after the fact appears no longer sufficient; preventing the next disaster from occurring is necessary.259 Yet, just because the evidentiary standard for the adoption of individual sanctions is set lower than for criminal measures this does not prevent them from having punitive effects comparable to criminal charges.260 Further, traditional criminal law also provides the means for preventive action against crime.

At the international level the Financial Action Task Force (FATF) is the only body dedicated solely to attacking financial crime.261 Established as early as 1989, the FATF’s original mandate focused on assisting states in fighting money-laundering and more generally in preventing the use of their financial systems for criminal purposes.262 Since 2001 the FATF has engaged in assessing counter-terrorist financing regulations. By October 2004 it had adopted nine Special Recommendations on Terrorist Financing.263 These (p.60) recommendations specifically refer to the ratification of the International Convention for the Suppression of the Financing of Terrorism, the implementation of Resolution 1373, and the freezing of assets.264 They attach considerable value to asset freezes as a means of fighting the financing of terrorism. Major criticism has been voiced against the lack of accountability and legitimacy in FATF’s decision-making processes.265 Although stated as voluntary codes of good practice the FATF recommendations have become effectively mandatory,266 and the FATF is largely considered effective in ensuring compliance with its standards.267 However, a report prepared by IMF Monetary and Financial Systems and Legal Departments and the World Bank in 2005 found that overall compliance is better for the money laundering recommendations than for the special recommendations on terrorist financing.268 All 25 assessed countries showed weakness on freezing terrorist assets and on instituting a legal requirement for reporting transactions where terrorist financing is suspected. Yet, the majority of countries had adopted measures to give effect to the UN sanctions regime under Resolution 1267.269 Hence, a centralized authoritative listing mechanism, such as the sanctions regime under Resolution 1267,270 appears to hold the advantage of a higher compliance rate.

Such a mechanism also holds remarkable disadvantages. Freezing assets is subject to an inherent conflict between the necessity to act fast and in secret to ensure the effectiveness and the requirements of a certain transparency which could ensure judicial and public control. In order to avoid time lapses that would render freezing measures futile individual sanctions (p.61) are in practice approved largely automatically at the domestic level after they have been agreed at the UN level.271 It is difficult to see how effective human rights protection could be easily materialized at the UN level without hindering the tasks of the Security Council. Hence, any mistake made at the international level is transposed to the domestic level, notwithstanding that the speed of adoption and the underfunding and understaffing of some of the UN bodies involved in counter-terrorism policy,272 contribute to a considerable mistake rate.273

In more recent years the debate on counter-terrorist policies has shifted from instruments and methods to fight terrorism to the impact on human rights both of terrorism274 and of counter-terrorist policies.275 For instance, the terminology has changed. The term ‘war on terror’ originally coined by the Bush administration276 was at the very beginning widely used. Today it is almost rejected in unison. Further developments are that the Council of Europe complemented the 1977 Convention on 15 July 2002 with ‘Guidelines on Human Rights and the Fight against Terrorism’.277 In these guidelines the Committee of Ministers specifically addressed issues like the prohibition of arbitrariness,278 legal certainty, and (p.62) proportionality of counter-terrorism measures,279 and the right to a fair hearing.280

More particularly in the context of individual sanctions the shift of attention towards human rights can be seen in the Reports of the Monitoring Group/Monitoring Team.281 While the earlier reports focused on increasing the effectiveness of individual sanctions, the later reports address more frequently human rights concerns.282 Further, while the General Assembly in the ‘2005 World Summit Outcome’ emphasized the importance of sanctions as a policy tool, referring both to state and to individual sanctions,283 it also expressed its concern for the procedural rights of those targeted by individual sanctions. It called (p.63)

upon the Security Council, with the support of the Secretary-General, to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them, as well as for granting humanitarian exemptions.284

The Security Council by contrast ‘[e]ncourages the Committee to continue to ensure that fair and clear procedures exist for placing individuals’ on the terrorist list ‘and for removing them as well as for granting humanitarian exemptions’.285 Other more recent developments include the work of the ‘Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’. He welcomed the General Assembly’s call for fair procedures and highlighted a number of ‘basic principles’ and ‘procedural guarantees.’286

The intensified counter-terrorist activities of the international community reflect a widely shared agreement that ‘something needs to be done’ to counter international terrorism. The fight against the financing of terrorism, including individual sanctions, is a logical response: terrorists need money to plan and execute terrorist attacks.287 At the same time, the nature of terrorist financing has changed: terrorist groups become less and less reliant on state sponsorship, but use alternative, illegal sources of money.288 The shift to a more integrated counter-terrorist strategy is a sensible reaction to this development.

Whether individual sanctions are an adequate, necessary, and proportionate tool in this strategy is a different matter. It is not sufficient to argue that the financing of terrorism needs to be stopped. The use of individual sanctions as a policy tool requires particular justification – even more so when taking into account the controversial effectiveness of asset freezes289 and the far-reaching restriction they impose on human rights. Indeed, as will be examined in the following chapters, drawing up lists of terrorist suspects and freezing their assets continues to reduce procedural rights beyond what is traditionally accepted by many international, European, and national human rights standards.290

(p.64) 6.2 The European Union’s Counter-Terrorist Policy

Within the European Union the pace of adopting counter-terrorist policies has equally accelerated. Even though multilateral counter-terrorist activity within Europe also pre-dates 2001291 the increased momentum started with the European Council’s ‘Action Plan’ to fight terrorism on 21 September 2001.292 In the present context the assessment of the numerous measures adopted by the European Union in its fight against terrorism can be no more than cursory. The overview is given to demonstrate that within the EU’s counter-terrorist policies individual sanctions are part of a bigger picture. The intention here is to highlight some of the particularities of the EU’s counter-terrorism policy, but also the specific problems that the European Union faces when fighting terrorism.

6.2.1 Terrorism as a European Problem

The European Union is in a difficult position. Most of the powers and capabilities in the field of counter-terrorism continue to remain with the Member States, the discussion is dominated by national threat perception, and much of the political discourse takes place at the national level.293 Further, the threat of terrorism is perceived very differently from one Member State to the next. A divide is identifiable between the west and the east of the EU and between countries that have experienced internal terrorism and those that have not.294 All Member States not only participate (p.65) in the European counter-terrorist policies but have some sort of national counter-terrorist policy, and all Member States have views on what should be done to address the threat of terrorism. Their support for individual sanctions depends on their assessment both of its value as such (effectiveness, human rights concerns, etc), and of its value in relation to their own national counter-terrorist concerns.295

Against these odds the EU has made a strong appearance as a security actor in the area of counter-terrorist policy. In December 2003, the European Security Strategy identified terrorism as the first of five key threats to European interests.296 Also, the EU has put into place a quite comprehensive ‘Counter-Terrorism Strategy’, supported by an ‘Action Plan’.297 The 2005 Counter-Terrorism Strategy defines four headings for EU action: Prevent (radicalization and recruitment); Protect (citizens and infrastructure); Pursue (terrorists across borders); and Respond (to the consequences of terrorist attacks).298 However, the key document remains the Action Plan against terrorism of 2001 that has been updated several times.299 The most well-known legal instruments are the framework decisions of 13 June 2002 on combating terrorism and on the European Arrest Warrant,300 but the EU’s counter-terrorism strategy goes much further. In 2007, the Commission adopted a package containing a series of proposals fleshing out the EU’s legal framework to counter terrorism. The (p.66) Commission proposed in particular measures to criminalize terrorist training, recruitment and public provocation to commit terrorist offences,301 the prevention of the use of explosives by terrorists302 and the use of airline passenger information in law enforcement investigations.303 Another recent tool in the fight against terrorism is the Data Retention Directive.304 It harmonizes the rules on how long telecom operators and internet providers must retain data. The directive is a good example for first pillar Community activity relating to terrorism that leads to controversy not only because of its impact on fundamental rights but also because it goes beyond (traditional) Community competences into the area of crime prevention and prosecution.305 The fight against terrorism has also become one of the central objectives in the creation of the Area of Freedom, Security and Justice.306 The post of the EU Counter-terrorism Coordinator was created.307 Finally, numerous bodies with broader objectives (p.67) contribute to the fight against terrorism, such as the European Border Agency (Frontex)308 and the European Police Office (Europol).309

The EU has also focused on fighting the financing of terrorism. Examples of legislative instruments are the Council framework Decision on the Execution of Orders Freezing Property or Evidence of 22 July 2003, and more famously, the so-called Third Money Laundering Directive of 26 October 2005.310 In contrast to asset freezes, these instruments target ‘illegal money’ only. The money used to finance terrorist attacks, however, comes both from legal and illegal sources (despite a certain shift towards the latter).311 The Third Money Laundering Directive explicitly includes the financing of terrorism within its scope. This is in principle in line with the FATF approach and the Nine Special Recommendations.312 However, the definition of terrorism in the Third Money Laundering Directive also displays a ‘unique’ European approach. It specifically targets cross-border cash movements313 and follows the Council Framework Decision on combating terrorism,314 rather the UN Convention for the Suppression of the Financing of Terrorism.315

(p.68) The EU has to some extent succeeded in Europeanizing316 a threat that is usually presented either as a national or global one. Terrorism became an internal security problem of the Union.317 Yet, the EU’s counter-terrorist policy is based on a combination of internal and external measures.318 This creates problems with regard to the (partial) separation between internal and external activities in the existing pillar structure of the EU. The fight against terrorism is now not only addressed within the second and third pillar, but has also become a consideration when the Community takes action.319 Cross-pillar acts, such as individual sanctions, raise particular problems of competences, democratic legitimacy and judicial protection.320

Overall, the fight against terrorism in the European Union is judged to be more successful at the legislative and institutional level than at the operational level.321 Part of the problem is that the EU’s response to terrorism is based on cooperation and coordination rather than on integration. Its success depends even after a particular instrument is agreed at the European level on the continuous will of the Member States to take action, and the Member States are better in agreeing politically than in implementing their decisions. This reflects the particular nature and the limited competences of the European Union.322 It also explains why measures like the Data Retention Directive are adopted under the Community pillar (with better enforcement mechanisms), despite their objective of fighting terrorism. Individual sanctions take a particular position in this respect. (p.69) They are agreed under the Union pillars but adopted in directly applicable Community regulations without any further need for implementation.

6.2.2 Individual Sanctions as Part of the European Union’s Fight against Terrorism

A Report on the Implementation of the European Security Strategy approved in December 2008323 attests the European Union ‘progress’ in countering terrorism overall, but–and this is highly relevant for individual sanctions–it also points out that ‘[f]urther work on terrorist financing is required, along with an effective and comprehensive EU policy on information sharing, taking due account of protection of personal data’.324

In 2003, the Council of the European Union drafted guidelines for the adoption of sanctions.325 These guidelines describe sanctions ‘as part of an integrated, comprehensive policy approach which should include political dialogue, incentives, conditionality’ but also as a last resort the use of coercive measures.

The EU is said to have adopted a criminal justice counter-terrorist model.326 This reflects the convictions of a number of Member States that have always taken a more integrated view on terrorism327 that is in line with the approach the international community has moved to more recently.328 Terrorism is believed to be closely interlinked with other criminal activities, such as illegal immigration, drug trafficking and organized crime more generally. Dealing with it as a separate problem is therefore perceived as inefficient. Further, the criminal justice model appears more palatable to EU Member States than allowing the EU to interfere with even more politically sensitive internal security matters. Sanctions against individual are in (p.70) this context to some extent an exception. Even thought the European Union also draws up autonomous lists of terrorist suspects based on cooperation in criminal matters in the third pillar, individual sanctions address terrorist financing and other support in isolation. Indeed, the Council attempts to pass these sanctions off as preventive administrative measures rather than as part of criminal law.329 Additionally, individual sanctions that give effect to UN lists of terrorist suspects are unrelated to the Member States’ cooperation in the third pillar.

By way of conclusion, sanctions against private individuals suspected to support terrorism form a cornerstone of the EU’s counter-terrorism strategy.330 They complement a wide range of other measures adopted to fight the financing of terrorism and terrorism itself. Fighting terrorism at the EU level has great advantages, but it also suffers from considerable drawbacks. National agencies continue to be reluctant to share intelligence on terrorism,331 even though considerable efforts have led to some progress on this issue.332 Also, the coordination of counter-terrorism policy between the UN and the EU has improved.333

Counter-terrorist policy at the national level differs greatly, including among the EU Member States. By way of example, in Germany the counter-terrorist discourse takes an international perspective. Although it enacted legislation as a response to the terror activities in the late sixties and seventies334 Germany introduced the first general law with the objective to fight international terrorism in early 2002.335 Many more (p.71) legal instruments have followed since.336 These measures are partially adopted in order to implement counter-terrorist policies agreed at the European level,337 but they also originate in part from the national discourse.

In the UK by contrast, counter-terrorist policy is developed predominantly in a national discourse. Since early 2003 the UK has developed a long-term, ‘co-ordinated, multi-agency, and international approach to the disruption of terrorist activity.’338 The key pieces of the legislative framework that give the UK government the powers to combat terrorism are: the Terrorism Act 2000 (TACT), the Anti-Terrorism, Crime and Security Act 2001 (ATCSA), the Prevention of Terrorism Act 2005, and the Terrorism Act 2006. The Terrorism Act 2000 made it illegal for certain terrorist groups to operate in the UK and extended proscription to include international terrorist groups, like Al-Qaida. The Prevention of Terrorism Act 2005 introduced control orders.339 The Terrorism Act 2006 made it a criminal offence directly or indirectly to encourage the commission, preparation, or instigation of acts of terrorism or to disseminate terrorist publications. It also broadened the basis for proscribing organisations to include those that promote or encourage terrorism.340 In the UK, although prosecution remains the preferred way of responding to persons involved in terrorist activity, other options for taking disruptive action have been introduced as well, including the deportation on grounds of national security or unacceptable behaviour, control orders, freezing and seizing financial assets, and proscription of organisations.

(p.72) 7. The Effectiveness of Individual Sanctions and Other Counter-Terrorist Measures

Assessing the effectiveness of individual sanctions is an even greater challenge than assessing the effectiveness of state sanctions. The latter typically aim at changing the political situation in a particular country, be it a regime change or preventing (further) human rights violations. The former are intended to fight the insufficiently defined phenomenon of terrorism. Individual sanctions are further only one means in the comprehensive counter-terrorist efforts of the international community and of the European Union. This makes it additionally difficult to identify them in isolation either as a complete success or as a complete failure. Finally, the reporting practice under the UN sanctions regime is slow and incomplete. Against this background, it is not surprising that assessments of the effectiveness of individual sanctions remain tentative.341

Difficulties are, for instance, noticeable in the assessment of the amount of funds frozen under the different sanctions regimes. For the UN Taliban and Al-Qaida regime this was at the end of 2007 approximately US$85 million.342 However, the Monitoring Team acknowledged that ‘the true figure of frozen assets’ is not known.343 Irrespectively, it evaluated the overall success of the policy of freezing assets as positive. The Monitoring Team pointed out that ‘the quantity of assets frozen is not the sole determinant of the value of the assets’.344 It emphasized that the asset freezes also serve as a general deterrent. They restrict ‘the ability of Al-Qaida-related terrorists to run extensive networks, training camps and social programmes for the (p.73) families of supporters, especially across borders’.345 Individual sanctions further serve the broader aim of having a symbolic value in that they send the message that financial support of terrorism will not be tolerated.

By contrast to the Monitoring Team’s assessment, the UK House of Lords Select Committee appears to consider the amount of money frozen as an important indication of the effectiveness of the measures. It observed that:

[t]he evidence suggests that the amounts of money frozen are so small both in absolute terms and relative to the probable resources of the targets, that it is doubtful whether asset freezes are effective as a means of inhibiting or changing the behaviour of those who are targeted.346

The Committee further pointed out that ‘just because … [individual sanctions] are labelled as targeted, this does not necessarily mean that they are hitting their targets’.347 The Committee continued by pointing out that the efforts made to improve targeting were inadequate. Overall however, the Committee also concluded that the findings do not mean that individual sanctions should be abandoned and that they may be effective ‘when the target wishes to avoid the stigma of illegitimacy’.348

The National Commission on Terrorist Attacks on the US (9/11 Commission)349 is overall critical of the effectiveness of individual sanctions. It considers their impact as highly limited. Further, although most scholars focus on the impact on human rights rather than on the effectiveness of individual sanctions, those who do examine the latter reach even more critical conclusions.350 Iain Cameron evaluated the impact on stopping terrorist groups from obtaining financing as being ‘most likely zero’.351

The different assessments demonstrate a further difficulty. Effectiveness should be measured against clear policy goals. The effectiveness of (p.74) individual sanctions in general and asset freezes in particular hinges consequently on whether or to what extent these measures meet their objectives. The narrowest direct objective of individual sanctions is to prevent terrorists from receiving (financial) support. This appears also to be the understanding of the CFI. In the case of OMPI II the Court argues that the prime consideration in the decision of whether a person remains listed should not be the person’s recent conduct but whether the assets belonging to that person would be used to finance terrorism.352 In contrast to the CFI, both the Monitoring Team and the House of Lords Select Committee appeared to have a broader understanding of the objectives of individual sanctions. They include the overall deterring effects of the sanctions regime and the impact on the behaviour of those sanctioned. The lack of a clear definition of what individual sanctions intend to achieve may explain some differences in appraisal.

Finally, it is impossible to judge whether the freezing of US$85 million is a sign of effectiveness or not. It depends on whether these funds would have otherwise been used to finance terrorist activities, and on what share US$85 million constitute of the total amount of funds available to ‘terrorists’. Also, it should be kept in mind that committing a terrorist act is – in the end – a cheap enterprise.353

While the contribution of individual sanctions to reducing the financial support of ‘terrorism’ is extremely difficult to appraise, it is easier to assess the practical effectiveness of the UN sanctions regime. This is also the focus of the Monitoring Team. In its Sixth report of 8 March 2007 the Monitoring Team suggests a two-level effectiveness examination: first, whether the state has the legal, administrative, enforcement, and political means in place to implement the sanctions and, second, how the state implements the sanctions in practice.354 The speed, quality, and quantity of investigation and information on terrorist financing have a major impact on the effectiveness of measures in practice. One problem is that a significant number of listed names had insufficient identifiers to allow (effective) enforcement action.355 Yet again, after pointing out these shortcomings the Monitoring Team concluded on 14 May 2008 that much progress had been ‘made in (p.75) improving the information on the list in recent month with contributions from 19 Member States leading to 44 proposed amendments in the six months since the Team last reported at the end of September 2007’.356

Enormous practical difficulties are attached to implementing individual sanctions.357 This results partly from the fact that implementation mechanisms for state sanctions are used for individual sanctions.358 Competent authorities are under-funded and badly equipped for their tasks.359 The effectiveness of regulatory programmes depends largely on voluntary compliance, since the competent authorities do not have the resources or the power to enforce them. Sometimes there are long delays between the announcement and the promulgation,360 and the lists are incomplete and already outdated at the time of official publication.361 Further, it is enormously difficult to identify individuals unambiguously.362 Enforcement measures remain secret and there are cases where actions were taken against people that are not on the list.363 Particularly harsh critics judge individual sanctions an ineffective tool in the fight against terrorism.364

Implementation in practice is crucial for the overall effectiveness of individual sanctions – not only, but also because the perception of effectiveness contributes to compliance and hence to effectiveness, particularly in international law.365 Yet an assessment of the practical functioning of UN sanctions regimes alone remains myopic; it does not answer the basic question of whether individual sanctions are the right policy choice.

(p.76) By way of conclusion, the effectiveness of individual sanctions depends primarily on whether they contribute significantly to reducing the financial funds available to terrorists. Yet, this is extremely difficult to judge. From the available studies this contribution appears to be limited. Part of the effectiveness of individual sanctions depends on effective perception and implementation. The error rate and inefficiencies of the UN sanctions regime, as well as the considerable restrictions (or violations) of human rights might be easier to assess. Their impact on the effectiveness of individual sanctions should not be underestimated. Moreover, even if a measure is an effective means to attain a legitimate policy goal the respect for fundamental rights may impose limits on its use. Fundamental rights concerns will be the focus of the rest of this book.

Conclusions

Acts of terrorism gravely violate human rights. This is the common ground for global counter-terrorist measures.366 However, terrorism has an additional dimension. It threatens the core values of societal existence.367 This is the case, not only because it denies the existence of those values, such as human life and dignity, but also because it has triggered counter-terrorist policies that depart from these values. This book takes the traditional perspective on human rights violations that focuses on the exercise of public power. It is argued that finding a way to fight terrorism without negating the most basic values of our societies is the greatest challenge. This goes above and beyond balancing the rights of victims (and potential victims) of terrorism against the rights of those subject to counter-terrorist measures.

International terrorism is a problem that needs to be addressed, at the international as well as at the domestic level. This overall assessment, however, cannot replace the assessment of the proportionality of each counter-terrorist policy and its implementation at the different levels. Individual sanctions form part of a general counter-terrorist strategy. The following assessment of these particular measures does not allow for an overall judgment on the necessity to fight terrorism or the financing of (p.77) terrorism. However, it allows for conclusions on the necessity to fight terrorism in compliance with human rights.

Individual sanctions are unique in how they concern individuals. It is true that there are a number of examples where international law directly impacts on the legal position of individuals.368 However, individual sanctions are different in that they create a direct link between international legal instruments and ordinary private individuals, without involving a judge. Private individuals are listed as terrorist suspects both by the UN and by the EU in procedures that were previously only used to adopt measures of general application. These mechanisms do not provide for the necessary procedural rights. Further, the UN level does not provide any judicial remedy, while Union lists of terrorist suspects are subject to preliminary rulings only. In this way, UN Security Council resolutions and CFSP common positions have an unprecedented direct impact on the rights of individual persons.

Two types of European sanctions against individuals can be distinguished depending on whether the identification of those suspected to support terrorism takes place at the UN level or at the EU level. The main difference between sanctions giving effect to UN lists and those giving effect to European lists is that in the latter case the European institutions exercise discretion. They decide autonomously who is targeted by restrictive measures under European law.

Individual sanctions have raised many human rights concerns. These concerns continue to exist irrespective of the improvements that have been made in the adoption procedures both at the UN level and at the EU level, such as the delisting procedure and the possibility to apply for humanitarian exemptions. Apart from competence issues the most pressing concern is the lack of effective judicial protection at both levels. This will be the focus of the following six chapters.

Notes:

(1) See eg Implementation of the UN Global Counterterrorism Strategy, 42nd Conference on the United Nations of the Next Decade, Sponsored by The Stanley Foundation, 8–13 June 2007.

(2) See Doron Zimmermann, ‘The European Union and posy 9/11 Counterterrorism: A Reappraisal’, Studies in conflict and terrorism, 29 (2006), pp 123–45 and below.

(3) See the country reports at: Christian Walter, ‘Terrorism as a Challenge for National and International Law: Security Versus Liberty’, Max-Planck-Institut für Ausländisches Öffentliches Recht und Völkerrecht (Springer, 2004), see also for an overview of the UK’s counter-terrorist measures: HM Government, Countering International Terrorism: The United Kingdom’s Strategy, July 2006, Cm 6888.

(4) See below; eg the United States of America (US) and the United Kingdom (UK).

(5) See in particular Chapter 5, Section 3.

(6) S/RES/1267 (1999), of 15 October 1999.

(7) S/RES/1333 (2000), of 19 December 2000.

(8) S/RES/1390 (2002), of 16 January 2002.

(9) S/RES/1373 (2001), of 28 September 2001.

(10) Phil Williams, ‘Warning indicators and Terrorist Finances’, in JK Giraldo and HA Trinkunas (eds), Terrorism Financing and State Responses: A Comparative Perspective (Stanford: Stanford University Press, 2007), p 74.

(11) Besides the attacks in Madrid in March 2004 and in the UK in July 2005, terrorist attacks were carried out in Pakistan, Tunisia, Morocco, Qatar, Jordan, Indonesia (including the bombing in Bali in October 2002, in which over 190 people were killed), Turkey, Egypt, Saudi Arabia, Yemen, and India (including the attacks in November 2008, in which over 170 people were killed).

(12) Malcolm Shaw, International Law (Cambridge: Cambridge University Press, 2003), p 1125, for more details: Jericho Nkala, The United Nations, International Law and the Rhodesia Independence Crisis (Oxford: Clarendon Press, 1985).

(13) See on this matter eg: Robin Geiss, ‘Humanitarian Safeguards in Economic Sanctions Regimes: A Call for Automatic Suspension Clauses, Periodic Monitoring, and Follow-Up Assessment of Long-Term Effects’, Harvard Human Rights Journal, 18 (2005), p 183 et seq; Erika de Wet, ‘Human Rights Limitations to Economic Enforcement Measures under Article 41 of the United Nations Charter and the Iraqi Sanctions Regime’, Leiden Journal of International Law, 14 (2001), pp 289–91; Matthews Craven, ‘Humanitarianism and the Quest for Smarter Sanctions’, European Journal of International Law, 46 (2002), p 46 et seq; Lutz Oette, ‘A Decade of Sanctions against Iraq: Never Again! The End of Unlimited Sanctions in the Recent Practice of the UN Security Council’, European Journal of International Law, 13 (2002), p 93 et seq.

(14) Richard W Parker, ‘The problem with Scorecards: How (and How not) to Measure the Cost-Effectiveness of Economic Sanctions’, Michigan Journal of International law, 21/2 (2000), p 235; Lisa L Martin and Jeffrey Laurenti, The United Nations and Economic Sanctions: Improving Regime Effectiveness (New York: United Nations Associations of the United States of America, 1997).

(15) Abbas Alnasrawi, Iraq’s burdens: Oil, Sanctions and Underdevelopment (Westport: Greenwood Press, 2002); Richard Garfield, ‘Morbidity and Morality among Iraq’s Children from 1990 to 1998: Assessing the impact of Economic Sanctions’, Occasional Paper Series University of Notre Dame, 16/3 (1999).

(16) The 1267 Sanctions Committee (UN Sanctions Committee) and the Counter-Terrorism Committee, see n 54 below.

(17) See on the distinction between human rights and fundamental rights: Francisco Rubio Llorente, ‘Mostrar los derechos sin destruir la Unión’, in: Eduardo García de Enterría and Ricardo Alonso García (eds), La encrucijada constitucional de la Unión Europea (Madrid: Civitas, 2002), pp 120–2.

(18) Eg: Case T-315/01, Yassin Abdullah Kadi v Council and Commission [2005] ECR II-3649, para 90; David Cortright and George A López, Smart Sanctions: Targeting Economic Statecraft (Lanham: Rowman & Littlefield, 2002), focusing on sanctions against political elites and drawing the conclusion that the effectiveness of sanctions depends less on whether they are comprehensive or targeted, but more on whether they are seriously enforced; Frank Meyer, ‘Lost in Complexity: Rechtsschutz gegen Smart Sanctions in der EU’, Zeitschrift für Europarechtliche Studien (2007), pp 1–69.

(19) Michael Brzoska, Smart Sanctions: The Next Stops. The Debate on Arm Embargoes and Travel Sanctions within the Bonn-Berlin Process (Baden-Baden: Nomos, 2001), see in particular in this book: Cortright and López, ibid, p 20 et seq.

(20) House of Lords, Select Committee on Economic Affairs, 2nd Report of Session 2006–07, ‘The Impact of Economic Sanctions’, Vol I: Report, Published 9 May 2007, Chapter 5: ‘Targeted Financial Sanctions on Individuals and Groups; the United Nations, the IMF, the Swiss Federal Office for Foreign Economic Affairs’.

(21) Eg: Iain Cameron, ‘Report to the Swedish Foreign Office on Legal Safeguards and Targeted Sanctions’, http://resources.jur.uu.se/repository/5/PDF/staff/sanctions.pdf (2002), p 34, identifying ‘at least one very likely violation of the ECHR, namely the right of access to court’ and stating that ‘business property rights may be violated’; opposed by: Göran Lysén, ‘Targeted UN Sanctions: On the Issue of Legal Sources and their Application and also some Procedural Matters’, Swedish Institute of International Law, Uppsala University, http://www.hotel.uu.se/webbtjanster/hotell.php, 2003), p 9, claiming that the ‘Security Council acted legally’; more general to UN sanctions against individuals and the threat they constitute for human rights: Gernot Biehler, ‘Individuelle Sanktionen der Vereinten Nationen und Grundrechte’, Archiv des Völkerrechtes, 41 (2003), pp 169–81; Peter Gutherie, ‘Security Council Sanctions and the Protection of Individual Rights’, New York University Annual Survey of American Law, 60 (2004), p 491; Erika de Wet and André Nollkaemper, ‘Review of the Security Council by Member States’ in Vera Gowlland-Debbas (ed), National Implementation of Non-Military Security Council Sanctions: A Comparative Study (Leiden: Brill Publishers, 2004).

(23) Security Council resolutions are not intended to have direct legal effect. UN member states are to ensure compliance via their own national legislation. However, the naming of individuals does have a direct impact on their rights.

(24) See Chapter 5, Section 4.

(25) See eg: Ruth Wedgewood, ‘Responding to Terrorism: The Strikes against Bin Laden’, Yale Journal of International Law, 24 (1999), p 559.

(26) Esa Paasivirta, ‘Human Rights, Diplomacy and Sanctions: Aspects to ‘Human Rights Clauses’ in the External Agreements of the European Union’ in Jarna Petman and Jan Klabbers (eds), Nordic Cosmopolitanism: Essays in International Law for Marti Koskenniemi (Boston, Mass: Nijhoff, 2003), p 174.

(27) As Margaret Thatcher put it in the discussion on sanctions against South Africa: ‘[W]e came to the conclusion that [sanctions] would harm the people who put them on far more than they would harm South Africa.’, BBC, on 17 October 1987, cited by: Margaret P Doxey, International Sanctions in Contemporary Perspective (London: Macmillan, 1996), p 106.

(28) Iain Cameron, ‘Rapports: European Court of Human Rights. January 2005 – March 2006’, European Public Law, 13 (2008) and ‘UN Targeted Sanctions, Legal Safeguards and the European Conventions on Human Rights’, Nordic Journal of International Law, 72 (2003), pp 28–9 citing Clara Portela, The Efficacy of Sanctions of the European Union: When and why do they work?, EU Institute Florence, unpublished PhD (2008).

(29) Concluding that this is the reason why despite all human rights concerns the listing procedure has been changed so little since its introduction: Spiegel, issue No 14/2006, p 43.

(30) The European Union’s failures to act in a unified manner in the face of various foreign policy crises in the 1990s have been extensively discussed (Baches Sergio Opi and Ryan Floyd, ‘A shaky Pillar of Global Stability: The Evolution of the European Union’s Common Foreign and Security Policy’, Columbian journal of European Law, 9 (2003), p 300). By contrast, changing the list of individuals threatened under a specific resolution passes usually painless (see below and also the discussion at: Case T-284/08, People’s Mojahedin Organization of Iran v Council (OMPI III), judgment of 4 December 2008, not yet reported, para 27 et seq).

(31) See below at 2.2.

(32) Gary Hufbauer, Clyde Schott, and Kimberly Ann Elliott, Economic Sanctions Reconsidered (Washington DC: Peterson Institute, 1985), p 3; Michael Malloy, United States Economic Sanction: Theory and Practice (The Hague: Kluwer Law International, 2001), p 20 et seq.

(33) Following SC Res 1452 Community measures provide for Humanitarian exceptions or authorise member states to grant such exceptions; these exceptions were implemented in Art 2a of Regulation 881/2002, a preliminary request for the interpretation of Art 2a is currently pending before the ECJ: Case C-340/08, M (FC) and Others, OJ [2008] C 260/8; see also Section 3.1.3 below.

(34) State sanctions intend to change the behaviour of states (Christoph Ohler, ‘Die Verhängung von smart sanctions durch den UN-Sicherheitsrat: Herausforderung für das Gemeinschaftsrecht’, EuR, 2006).

(35) Iain Cameron, ‘European Union Anti-Terrorist Blacklisting’, Human Rights Law Review, 4 (2004); see however below the changes introduced by SC Res 1822.

(36) See eg: Case T-315/01, Kadi (n 18 above) and Case T-228/02, Organisation des Modjahedines du peuple d’Iran v Council and UK (OMPI I) [2006] ECR II-4665.

(37) Cases C-402/05 P and C-415/05 P, Kadi and al Barakaat, judgment of 3 September 2008, not yet reported.

(38) See Chapter 7, Section 1.1.

(39) Peter Fitzgerald, ‘Compliance Issues Associated with Targeted Economic Sanctions,’ in House of Lords, Select Committee on Economic Affairs, 2nd Report of Session 2006–07, ‘The Impact of Economic Sanctions’, Vol II: Evidence (2007), p 151; Steven Dewulf and Didier Pacquée, ‘Protecting Human Rights in the War on Terror: Challenging the Sanctions Regime Originating from Res 1267 (1999)’, Netherlands Quarterly of Human Rights, 24/4 (2006), p 616 et seq; see Section 7 below for effectiveness and error rate.

(40) See below Section 3.1.1; compare also Chapter 7, Section 1.3 on the listing criteria within the EU.

(41) See Chapter 3, Section 3.2.2 for the similarities with criminal law.

(42) Case T-306/01, Ahmed Ali Yusuf and al Barakaat International Foundation v Council and Commission [2005] ECR II-3533 and Case T-315/01, Kadi (n 3 above); Case T-49/04, Hassan v Council and Commission [2006] ECR II-52, summ pub; Case T-253/02, Ayadi v Council [2006] ECR II-2139; see also: Cases C-402/05 P and C-415/05 P, Kadi and al Barakaat (n 37 above) and the pending appeals: Case C-399/06 P, Hassan, OJ 2006 C 294/30; Case C-403/06 P, Ayadi, OJ 2006 C 294/32.

(43) See Arts 46 and 35 TEU.

(44) See Section 3.1.1 below on the listing criteria.

(45) Compare the UK lists of terrorist groups, at: http://security.homeoffice.gov.uk/legislation/current-legislation/terrorism-act-2000/proscribed-terrorist-groups (listing as of 20 March 2009: 46 international terrorist organizations, 14 Northern Irish terrorist organizations, and two organizations for glorifying terrorism) with the US lists of terrorist groups, at: http://www.state.gov/s/ct/list/index.htm (listing as of 20 March 2009: 44 ‘foreign terrorist organizations’) and with the most recent EU lists of terrorist suspects in Council Common Position 2009/67/CFSP of 26 January 2009, OJ L 23/37–42 (listing 59 persons and 47 groups and entities).

(46) Eighth Report of the Analytical Support and Sanctions Monitoring Team, UN Doc S/2008/324 (14 May 2008), para 23, p 12 and para 47, p 19.

(47) Fourth Report of the Analytical Support and Sanctions Monitoring Team, UN S/2006/154 (10 March 2006), para 61, p 19. The Team notes that no state has informed the Committee or the Team that they have located and frozen assets belonging to any of the 23 individuals or one entity added to the List since June 2005 (para 62).

(48) First report of the Analytical Support and Sanctions Monitoring Team appointed pursuant to resolution 1526 (2004) concerning Al-Qaida and the Taliban and associated individuals and entities, UN S/2004/679, para 6, p 4.

(49) Sixth report of the Analytical Support and Sanctions Monitoring Team, UN S/2007/132 (8 March 2007), para 39.

(50) See for an overview of the development of the Security Council sanctioning practice: Inger Österdahl, Threat to Peace (Uppsala: Iustus, 1998), pp 45–84; Vera Gowlland-Debbas, ‘Sanctions Regimes under Article 41 of the UN Charter’ in Vera Gowlland-Debbas (ed), National Implementation of Non-Military Security Council Sanctions: A Comparative Study (Leiden: Brill Publishers, 2004), pp 1–31. The discussion focuses on the kind of measures taken, while the competence of the Security Council for such actions do not seem to be questioned in principle: Nico Krisch, ‘The Rise and Fall of Collective Security: Terrorism, US Hegemony, and the Plight of the Security Council’ in Christian Walker, Silja Vöneky, Volker Röben and Frank Schokopf (eds), Terrorism as a Challenge for National and International Law: Security versus Liberty? (Berlin, Heidelberg: Springer, 2003), p 4.

(51) See eg: Erika de Wet and André Nollkaemper, ‘Review of Security Council Decisions by National Courts’, German Yearbook of International Law, 45 (2002), pp 166–202; Erika de Wet, The Chapter VII Powers of the United Nations Security Council (Oxford: Hart Publishing, 2004); Iain Cameron, ‘Protecting Legal Rights: On the (In)Security of Targeted Sanctions’ in Peter Wallensteen and Carina Staibano (eds), International Sanctions: Between Words and Wars in the Global System (London: Routledge, 2005), pp 181–206.

(52) In favour: Ohler, ‘Die Verhängung von smart sanctions durch den UN-Sicherheitsrat: Eine Herausforderung für das Gemeinschaftsrecht’ (n 34 above).

(53) UN Security Council documents: S/RES/1189, of 13 August 1998; S/RES/1193, of 28 August 1998; and S/RES/1214, of 8 December 1998.

(54) First called the 1267 Committee; since September 2003 officially titled ‘The Al-Qaida and Taliban Sanctions Committee’, see: UN Security Council document SC/7865, of 4 September 2003.

(55) SC Res 1333 (19 December 2000); SC Res 1390 (16 January 2002); SC Res 1455 (17 January 2003); SC Res 1526 (30 January 2004); SC Res 1617 (29 July 2005); SC Res 1735 (22 December 2006); SC Res 1822 (30 June 2008).

(56) SC Res 1333, para 8.

(57) ibid, para 14.

(58) The same was already true for SC Res 1373.

(59) Gowlland-Debbas, ‘Sanctions Regimes under Article 41 of the UN Charter’ (n 50 above), p 15; see also Section 3.2 below.

(60) See the discussion below.

(61) Para 3 of SC Res 1390 foresees a review after 12 months. The two outlined options between which the Security Council is charged to decide, however, is to let them continue or to improve them. This results in a default position in which the sanctions continue. The decision to terminate it must be actively taken and conform to the ‘parallelism of forms’ rule which asks for the same legal form to terminate a measure in which it has been set up, if not provided differently.

(62) Introduced for the first time in SC Res 1298 (2000).

(63) Oette, A Decade of Sanctions against Iraq: Never again! The End of Unlimited Sanctions in the Recent Practice of the UN Security Council (n 13 above), p 94.

(64) Eg SC Res 1127, para 4 a; with respect to travel bans SC Res 1343, para 7 a.

(65) Dewulf and Pacquée, Protecting Human Rights in the War on Terror: Challenging the Sanctions Regime Originating from Res 1267 (1999) (n 39 above), p 609.

(66) Guidelines of the Committee for the conduct of its work, adopted on 7 November 2002, as amended on 10 April 2003, 21 December 2005, 29 November 2006 and 12 February 2007 (‘Guidelines’); at: http://www.un.org.

(67) Article 27(3) UNC: Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under para 3 of Art 52, a party to a dispute shall abstain from voting.

(68) Iain Cameron, ‘The European Convention on Human Rights: Due Process and United Nations Security Council Counter-Terrorism Sanctions’, Report to the Council of Europe, of 6 February 2006, http://www.coe.int/; see also Bardo Fassbender, ‘Targeted Sanctions and Due Process’, study commissioned by the United Nations, 20 March 2006 (final), http://www.un.org/law/counsel/Fassbender_study.pdf.

(69) Guidelines (n 66 above), para 6(c) and (d).

(70) See on the old procedure: de Wet and Nollkaemper, Review of Security Council Decisions by National Courts (n 51 above), pp 166–202.

(71) SC Res 1526, para 17 and SC Res 1617, paras 2 and 4

(72) SC Res 1617, para 2 and 4; reaffirmed by SC Res 1822, para 2.

(73) See the discussion at: Communication No 1472/2006, Nabil Sayadi and Patricia Vinck, Views adopted on 29 December 2008.

(74) Cameron, The European Convention on Human Rights: Due Process and United Nations Security Council Counter-Terrorism Sanctions (n 68 above), p 5.

(75) Larissa van der Herik and Nico Schrijver, ‘Section Two: Human Rights Concerns in Current Targeted Sanctions Regimes from the Perspective of International and European Law’ inThomas J Biersteker and Sue E Eckert, ‘Strengthening Targeted Sanctions through Fair and Clear Processes’, White Paper prepared by the Watson Institute Targeted Sanctions Project, Brown University 30 March 2006, p 28.

(76) Eric Rosand, ‘The Security Council’s Efforts to Monitor the Implementation of Al Qaeda Taliban Sanctions’, American Journal of International Law, 98 (2004), p 749; Cameron speaks of ‘rubber stamping US anti-terrorist blacklists’ (Cameron, UN Targeted Sanctions, Legal Safeguards and the European Convention on Human Rights (n 28 above), p 166); Ohler, ‘Die Verhängung von smart sanctions durch den UN-Sicherheitsrat: Eine Herausforderung fur das Gemeinschaftsrecht’ (n 34 above).

(77) Spiegel, issue No 14/2006, p 43.

(78) Guidelines (n 66 above), para 4(b); this period was extended; before objections had to be brought within 48 hours.

(79) August Reinisch, ‘The Action of the European Union to Combat International Terrorism’ in: Andrea Bianchi (ed), Enforcing International Law Norms Against Terrorism (Oxford: Hart Publishing, 2004), p 119 et seq, at 131.

(80) Lord Archer of Sandwell, in UK Terrorism Act: 21 New Proscribed Organizations, abstract from the House of Lords debate on 27 March 2001, available at http://www.statewatch.org/news/2001/oct/01proscribed.htm.

(82) SC Res 1822, para 13; see also below.

(83) ibid, para 15.

(84) ibid, para 17; see for examples of the narrative summary: http://www.un.org/sc/committees/1267/narrative.shtml.

(85) Report of the Monitoring Group on Afghanistan pursuant to resolution 1363 (2001), S/2002/65, para 53.

(86) Second report of the Monitoring Group established pursuant to Security Council resolution 1363 (2001) and extended by resolution 1390 (2002), S/2002/1050, summary, p 3.

(87) ibid.

(88) See SC Res 1526 (2004), paras 6 and 7 and Annex to SC Res 1526, SC Res 1617 (2005), para 20, SC Res 1735 (2006), para 32, and SC Res 1822 (2008), para 39.

(89) See eg: S/2008/324, para 15.

(90) See in particular the Sixth report of the Analytical Support and Sanctions Monitoring Team, UN S/2007/132 (8 March 2007): ‘The List can be most useful, and attract most support, when it is recognized as a fair reflection of the threat as perceived by the international community at large. The greater the number of States that submit names, the more representative the List becomes, and the more States are likely to take notice and implement the sanctions with vigour and commitment. It is clear that an inadequate List is likely to result in inadequate or half-hearted implementation of the measures.’ (para 14); ‘some States believe are insufficiently in tune with human rights concerns or too inflexible to allow for the speedy addition or removal of names’ (para 16); ‘There is a sense in certain Member States that the List is not a useful operational tool in counter-terrorist work. This lack of confidence in the List is unfortunate as it is in fact potentially one of the most useful operational tools in the whole panoply of international measures against Al-Qaida-related terrorism.’ (para 17).

(91) Sixth Report, ibid, para 39.

(92) Robert K Goldman, ‘Report of the Independent Expert on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism’, E/CN 4/2005/103, paras 30–41.

(93) See UN General Assembly, A/61/267, 16 August 2006, paras 30–41.

(94) ibid, para 39.

(95) Enrico Milano, ‘Diplomatic Protection and Human Rights Before the International Court of Justice: Re-fashioning Tradition?’, Netherlands Yearbook of International Law (2004), pp 85–142, compares human rights and diplomatic protection and analyzes the unexpected revival of the latter.

(96) Guidelines (n 66 above), para 8(e).

(97) Guidelines (n 66 above), para 8(e)(iii)

(98) See however for the EU Member States: Case T-253/02, Ayadi (n 42 above).

(99) S/RES/1730 (2006), of 19 December 2006.

(100) S/RES/1735 (2006), of 22 December 2006.

(101) Annex attached to SC Res 1730 (2006), para 1.

(102) ibid, paras 2, 3.

(103) ibid, para 4.

(104) ibid, para 5.

(105) ibid, para 8.

(106) SC Res 1730, para 1; Guidelines (n 66 above), para 8(d).

(107) ibid, para 8vi(a).

(108) ibid, para 8vi(c).

(109) Article 2(a) of the Guidelines (n 66 above).

(110) On 2 December 2008, one individual and nine entities had been removed from the Taliban section of the list and 13 individuals and 15 entities from the Al-Qaida section, see: http://www.un.org/sc/committees/1267/removed.shtml.

(111) More in general on the national sanctioning practice in Sweden: Statens Öffentliga Utredninga, Internatinalla Sanktioner: Betänkande av Sanktionslagutredningen (Stockholm: SOU, 2006); Fredrik Stenhammar, ‘Swedish State Practice 2004–05: United Nations Targeted Sanctions’, Nordic Journal of International Law, 75 (2006), pp 317–20.

(112) See Case T-306/01 R, Aden and others v Council and Commission [2002] ECR II-2387 and Case T-306/01, Yusuf (n 42 above).

(113) Press Release SC/7206.

(114) Statement by Margareta Linderoth, Supreme Commander at the Swedish Security Police in Dagens Eko of 14 December 2001.

(115) Sweden's Foreign Affairs Ministry in the Wall Street Journal 6 May 2002, CNN.com WORLD 22 February 2002.

(116) Ministry of Foreign Affairs Press Release of 22 January 2002 www.regeringen.se.

(117) UN Document S/AC.37/2002/13 (2002).

(118) 9 November 2001–26 August 2002; Press Release SC/7490.

(119) Press Release SC/8815.

(120) Cases C-402/05 P and C-415/05 P, Kadi and al Barakaat (n 37 above).

(121) Chapter 5, n 27 and accompanying text; Chapter 7, Section 3.2.

(122) SC Res 1822.

(123) Cases C-402/05 P and C-415/05 P, Kadi and al Barakaat (n 37 above), paras 322–3.

(124) Court of Appeal, A, K, M, Q, G v HM Treasury [2008] EWCA Civ 1187, para 114.

(125) Swiss Supreme Court, Youssef Mustapha Nada v Staatssekretariat für Wirtschaft [2007] 1A.45/2007, para 7.4.

(126) ibid.

(127) Article 14(1) ICCPR: ‘All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. […]’

(128) Communication No 1472/2006 (n 73 above).

(129) ibid, para 10.9.

(130) ibid.

(131) Compare Chapter 7, Section 3.3.

(132) SC Res 1735 (2006), para 14 sets out that the Committee ‘may consider, among other things,’ whether the individual or entity was placed on the list due to a mistake of identity, or whether the individual or entity no longer meets the criteria of being listed, especially whether the individual is deceased or whether the individual or entity has severed all association with Al-Qaida, Usama bin Laden, the Taliban and their supporters, including all individuals and entities on the list.

(133) S/RES/1452 (2002), of 20 December 2002.

(134) SC Res 1452, para 1(a).

(135) See SC Res 1452, para 1(a), SC Res 1735, para 15, and para 9(a) of the Guidelines (n 66 above); the period was extended from 48 hours to three working days.

(136) Van der Herik and Schrijver, Section Two: Human Rights Concerns in Current Targeted Sanctions Regimes from the Perspective of International and European Law (n 75 above), p 31.

(137) Compare the statement by Anna Lindh, Ministry of Foreign Affairs Press Release of 22 August 2002 and 20 December 2002, www.regeringen.se.

(138) See Section 5 below.

(139) High Court, M, A, MM v HM Treasury [2006] EWHC 2328 (Admin), para 64; Court of Appeal M, A, MM v HM Treasury [2007] EWCA Civ 173, para 17; see also Chapter 5, Section 5.2.2.

(140) Report from the Appellate Committee of 30 April 2008, at: R (on the application of M) v HM Treasury [2008] UKHL 26; currently pending: Case C-340/08, M (FC) and Others, OJ [2008] C 260/8.

(141) SC Res 1368, adopted on 12 September 2001 stipulates in its second recital its determination to combat terrorism acts as a threat to international peace and security. In its first paragraph it refers to the 11 September attacks.

(142) Antonio Cassese, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law’, European Journal of International Law, 12 (2001), p 993 (996): The preamble of SC Res 1368 recognises the right of self-defence whereas the operative part declares the attacks to be a threat to peace only and not an armed attack, the latter of which is the precondition for a right of self-defence. There is a perceivable wavering between the desire to take action collectively and a resignation of the unilateral action of the United States of America.

(143) SC Res 1373, para 1.

(144) It was considered to be evidence that the Security Council assumes the role of a legislator: Gilbert HE Guillaume, ‘Terrorism and International Law’, Grotius Lecture at the British Institute of International and Comparative Law, 13 November 2003; Paul C Szasz, ‘Notes and Comments: The Security Council starts Legislating’, American Journal of International Law, 96 (2002), p 901; Clementine Olivier, ‘Human Rights Law and International Fight against Terrorism: Could Security Council Regulations Impact on States’ Obligations under International Human Right Law?’ NJIL, 73 (2004), p 399: ‘the Security Council is not supposed to legislate’, ‘there exists a border-line between enforcement and law-making’.

(145) Gowlland-Debbas, Sanctions Regimes under Article 41 of the UN Charter (n 50 above), p 6.

(146) SC Res 1373, para 1(a).

(147) Jean-Marc Sorel, ‘Some Questions About the Definition of Terrorism and the Fight Against Its Financing’, European Journal of International Law, 14 (2003), p 366 et seq; Stefan Oeter, ‘Terrorismus und Menschenrechte’, Archiv des Völkerrechts, 40 (2002), p 424 et seq; but see also the ‘working definition’ in the Report of the High-level Panel on Threats, Challenges and Change, entitled ‘A more secure world: our shared responsibility’, UN doc A/59/565, 2 December 2004, available at: http://www.un.org/secureworld/; see below more broadly on the UN’s fight against terrorism.

(148) SC Res 1390, para 3, even if by default the sanctions remain in place, see Section 3.1.1 above.

(149) Krisch, ‘The Rise and Fall of Collective Security: Terrorism, US Hegemony and the Plight of the Security Council’ (n 50 above), p 10; Olivier, Human Rights Law and International Fight against Terrorism: Could Security Council Regulations Impact on States’ Obligations under International Human Right Law? (n 144 above), p 399; Nico Krisch and Jochen Frowein, ‘Chapter VII: Action with respect to the Peace, Breaches of the Peace and Acts of Aggression. Introduction’ in Bruno Simma (ed), The Charter of the United Nations: A Commentary (Oxford: Oxford University Press, 2002), p 708.

(150) Nicolas Angelet, ‘Vers un renforcement de la prévention et la répression du terrorisme par de moyens financiers et économiques?’ in Karine Bannelier et al (eds), Le droit international face au terrorisme: après le 11 septembre 2001 (Paris: Pedone, 2003), p 219 et seq; Matthew Happold, ‘Security Council Resolution 1373 and the Constitution of the United Nations’, Leiden Journal of International Law, 16 (2003), p 593 et seq; José Alvarez, ‘Hegemonic International Law Revisited’, American Journal of International Law, 97 (2003), p 875 (calling SC Res 1373 an opportunistic choice of measure).

(151) Very positive: Szasz, Notes and Comments: The Security Council starts Legislating (n 144 above), p 905: ‘this new tool will enhance the United Nations and benefit the world community’.

(152) Another example of the Security Council’s legislative activity is SC Res 1540 of 28 April 2004. It also relates to terrorism and addresses the possession of weapons of mass destruction by private actors.

(153) Krisch and Frowein, ‘Chapter VII: Action with respect to the Peace, Breaches of the Peace and Acts of Aggression. Introduction’ (n 149 above), p 708.

(154) ibid, p 709.

(155) Pierre-Marie Dupuy, ‘The Law After the Destruction of the Towers’, European Journal of International Law, Series on Legal Responses to ‘The Attack on the World Trade Center’ (2002); Andrea Bianchi, ‘Enforcing International Law Norms Against Terrorism: Achievements and Prospects’ in Andrea Bianchi (ed), Enforcing International Law Norms Against Terrorism (Oxford: Hart Publishing, 2004), p 515; Jonathan Charney, ‘Universal International Law’, American Journal of International Law, 87 (1993), p 529 et seq.

(156) Krisch and Frowein, Chapter VII: Action with respect to the Peace, Breaches of the Peace and Acts of Aggression. Introduction (n 149 above), p 709: ‘…action by the SC is immediately supported only by 15 members and therefore cannot claim to represent the view of the whole international community.’.

(157) See also below the General Assembly’s criticism of the UN sanction regimes.

(158) There has been considerable resistance to earlier sanctioning regimes under SC Res 1267 and 1333: see for example the proceedings in Sweden: Per Cramér, ‘Recent Swedish Experience with Targeted UN Sanctions: The Erosion of Trust in the Security Council’ in Erika de Wet and André Nollkaemper, Review of the Security Council by Member States (Antwerp: Intersentia, 2003), pp 85–106.

(159) Bianchi, Enforcing International Law Norms Against Terrorism: Achievements and Prospects (n 79 above), p 518; Szasz, Notes and Comments: The Security Council starts Legislating (n 144 above), p 903.

(160) Krisch, The Rise and Fall of Collective Security: Terrorism, US Hegemony, and the Plight of the Security Council (n 50 above), p 6.

(161) De Wet and Nollkaemper, Review of Security Council Decisions by National Courts (n 51 above), p 201.

(162) SC Res 1267, 1333, and 1390: Biehler, ‘Individuelle Sanktionen der Vereinten Nationen und Grundrechte’ (n 21 above), p 169.

(163) Cameron, ‘Protecting Legal Rights: On the (In)Security of Targeted sanctions’ (n 51 above), p 200; Cameron, ‘Report to the Swedish Foreign Office on Legal Safeguards and Targeted Sanctions’ (n 21 above), p 48.

(164) Cameron, European Union Anti-Terrorist Blacklisting (n 35 above).

(165) Cameron, Protecting Legal Rights: On the (In)Security of Targeted sanctions (n 51 above), p 200; Cameron, Report to the Swedish Foreign Office on Legal Safeguards and Targeted Sanctions (n 21 above), p 48.

(166) Biehler, ‘Individuelle Sanktionen der Vereinten Nationen und Grundrechte’ (n 21 above), p 169.

(167) In particular, it imposed on all states certain obligations specifically selected from those imposed by the International Convention for the Suppression of the Financing of Terrorism, UN Doc A/RES/54/109 of 9 December 1999, which at that time had not passed the necessary number of ratifications for it to enter into force (only four ratifications and 46 signatures).

(168) See for examples and reflection on the Council procedures: Sydney D Bailey and Sam Daws, The Procedure of the UN Security Council (Oxford: Clarendon Press, 1998).

(169) Article 24 UN Charter.

(170) See the Statement of the representatives of the United States, UNCIO VI, p 29, Doc 1006 I/6 and the report of the Committee I/1, UNCIO VI, p 453, Doc 944 I/1/34 (1).

(171) Olivier, ‘Human Rights Law and International Fight against Terrorism: Could Security Council Regulations Impact on States’ Obligations under International Human Right Law?’ (n 144 above), p 408: ‘…for these very reasons, this makes the Council a totally inappropriate legislative and law-creating body’.

(172) Curtis A Ward, ‘The CTC and Targeted Sanctions’ in Peter Wallensteen and Carina Staibano (eds), International Sanctions – Between Words and Wars in the Global System (London: Routledge, 2005), p 173; David Cortright and George A López, ‘A Sanctions Coordinator: Options for Enhancing Compliance’ in Peter Wallensteen and Carina Staibano (eds), International Sanctions: Between Words and Wars in the Global System (London: Routledge, 2005), p 70.

(173) Thomas J Biersteker, Sue E Eckert, Aaron Halegua and Peter Romaniuk, ‘Consensus from the Bottom Up? Assessing the Influence of the Sanctions Reform Processes’ in Peter Wallensteen and Carina Staibano (eds), International Sanctions: Between Words and Wars in the Global System (London: Routledge, 2005), p 25; see ‘Letter dated 15 July 2003 from the Chairman of the Security Council Committee established pursuant to Resolution 1373 (2001) concerning counter-terrorism addressed to the President of the Security Council’, S/2003/710, p 2.

(174) See eg the series of challenges before the CFI: Case T-228/02, OMPI I (n 36 above); Case T-256/07, People’s Mojahidin Organization of Iran v Council (OMPI II), judgment of 23 October 2008, not yet reported; appeal pending: Case C-576/08 P, People's Mojahedin Organization of Iran; Case T-284/08, OMPI III (n 30 above); Case T-47/03, Jose Maria Sison v Council and Commission [2007] ECR II-73 (sum pub); see also Chapter 6 for more detail on these cases.

(175) Apart from the here examined counter-terrorist sanctions the EU has adopted sanctions against the Transnistrian leadership in Moldavia as a measures targeted at a non-state entity (CP 2008/160/CFSP, 25 February 2008 [2008] OJ L 51, 26.2.2008, p 23). These measures will however not be discussed in this book.

(176) Common Position 2002/402/CFSP; EC Regulations 337/2000 and 467/2001.

(177) Case T-253/02, Ayadi (n 42 above), paras 71–9 (77).

(178) While Reg 467/2001 adopts measures ‘prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan’, Reg 881/2002 speaks of ‘imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban’.

(179) The preamble of EC Regulation 467/2001 refers to SC Res 1267 and 1333 only, which are both limited to measures against Usama Bin Ladin and the Taliban. The preamble of EC Regulation 881/2002, on the other hand, contains additional references to SC Res 1373 and 1390. The latter reiterates the broad obligations of the UN Member States set out in the former, to take certain actions ‘with regard to any member of the Taliban and the Al-Qaida organisation, but also with regard to those who are associated with them and have participated in the financing, planning, facilitation, preparation or perpetration of terrorist acts’.

(180) In particular the extension of the freezing measures to ‘economic resources’.

(181) Eg: Common position 2002/402/CFSP of 27 May 2002 concerning restrictive measures against Usama bin Laden, members of the Al-Qaida organisation and the Taliban and other individuals, groups, undertakings and entities associated with them and repealing Common Positions 96/746/CFSP, 1999/727/CFSP, 2001/154/CFSP and 2001/771/CFSP, OJ 2002 L 139/4.

(182) Compare the different consolidated versions of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban from 27 May 2002 to 5 August 2006.

(183) Eg: Commission Regulation (EC) No 639/2007 of 8 June 2007 amending for the 78th time Council Regulation (EC) No 881/2002, OJ L 148/5.

(184) Case T-306/01 R, Aden (n 112 above), para 70.

(185) ibid.

(186) See also the discussion in Chapter 7, Section 2.

(187) Cases T-306/01, Yusuf (n 42 above) and Case T-315/01, Kadi (n 18); Cases T-49/04, Hassan (n 42 above) and Case T-253/02, Ayadi (n 42 above).

(188) Cases C-402/05 P and C-415/05 P, Kadi and al Barakaat (n 37 above).

(189) Case T-135/06, Al-Faqih v Council, application of 15 July 2006, OJ 2006 C 165/29; Case T-136/06, Sanabel Relief Agency, application of 15 July 2006, OJ 2006 C 165/30; Case T-137/06, Abdrabbah, application of 15 July 2006, OJ 2006 C 165/30; Case T-138/06, Nasuf, application of 15 July 2006, OJ 2006 C 165/30; all pending.

(190) Case C-399/06 P, Hassan (n 42 above); Case C-403/06 P, Ayadi (n 42 above); see Chapter 2 on the competence to adopt individual sanctions and Chapter 5 on the relationship between European law and international law.

(191) Cases C-402/05 P and C-415/05 P, Kadi and al Barakaat (n 37 above); see also Chapter 5, Section 1.

(192) See also Chapter 7, Section 2.

(193) OJ 2001, L 344/93, of 27 December 2001.

(194) OJ 2001, L 344/ 70, of 27 December 2001.

(195) The general definition of a terrorist act was taken up by Framework Decision 2002/475/JHA, OJ 2002 L 164/3.

(196) 27 times between 27 December 2001 and 15 June 2009: Council Common Position 2009/468/CFSP of 15 June 2009, OJ 2009 L 151/45–50; Council Common Position 2009/67/CFSP of 26 January 2009, OJ 2009 L 23/37–42; Council Common Position 2008/959/CFSP of 16 December 2008, OJ 2008 L 338/77–78; Council Common Position 2008/586/CFSP of 15 July 2008, OJ 2008 L 188/71–76; Council Common Position 2008/347/CFSP of 29 April 2008, OJ 2008 L 116/55–55; Council Common Position 2008/346/CFSP of 29 April 2008, OJ 2008 L 116/53–54; Council Common Position 2008/586/CFSP of 15 July 2008; Council Common Position 2007/871/CFSP of 20 December 2007, OJ 2007 L 340/109–14; Council Common Position 2007/448/CFSP of 28 June 2007, OJ 2007 L 169/69–74; Council Common Position 2006/1011/CFSP of 21 December 2006, OJ 2006 L 379/129–30; Council Common Position 2006/380/CFSP of 29 May 2006, OJ 2006 L 144/25–9; Council Common Position 2006/231/CFSP of 20 March 2006, OJ 2006 L 82/20–4; Council Common Position 2005/936/CFSP of 21 December 2005, OJ 2005 L 340/80–4; Council Common Position 2005/847/CFSP of 29 November 2005, OJ 2005 L 314/41–5; Council Common Position 2005/725/CFSP of 17 October 2005, OJ 2005 L 272/28–32; Council Common Position 2005/427/CFSP of 6 June 2005, OJ 2005 L 144/54–8; Council Common Position 2005/220/CFSP of 14 March 2005, OJ 2005 L 69/59–63; Council Common Position 2004/500/CFSP of 17 May 2004, OJ 2004 L 196/12–16; Council Common Position 2004/309/CFSP of 2 April 2004, OJ 2004 L 99/61–4; Council Common Position 2003/906/CFSP of 22 December 2003, OJ 2003 L 340/77–80; Council Common Position 2003/651/CFSP of 12 September 2003, OJ 2003 L 229/42–5; Council Common Position 2003/482/CFSP of 27 June 2003, OJ 2003 L 160/100–3; Council Common Position 2003/402/CFSP of 5 June 2003, OJ 2003 L 139/35–8; Council Common Position of 12 December 2002, OJ 2002 L 337/93–6; Council Common Position of 28 October 2002, OJ 2002 L 295/1–4; Council Common Position 2002/462/CFSP of 17 June 2002, OJ 2002 L 160/32–5; Council Common Position 2002/340/CFSP of 2 May 2002, OJ 2002 L 116/75–7.

(197) French acronym of the Permanent Representatives Committee.

(198) Council Document 10826/07 on the fight against the financing of terrorism–implementation of Common Position 2001/931/CFSP, of 21 June 2007, Annex II; see Chapter 7, Section 1.1 for more detail.

(199) Member States are divided over how to go about adding a name proposed by a third country (http://www.europarl.eu.int/comparl/libe/elsj/newsletter/2002_06/default_en.htm).

(201) The Ministry of Foreign Affairs: Finland and Terrorism: http://formin.finland.fi/doc/eng/policies/repterro.htm.

(202) Case T-284/08, OMPI III (n 30 above), para 27 et seq.

(203) ibid, para 28.

(204) ibid; see also Art 249(2) EC

(205) ibid, para 31.

(206) ibid, para 33.

(207) ibid, para 34.

(208) Council Decision 2003/48/JHA of 19 December 2002 on the implementation of specific measures for police and judicial cooperation to combat terrorism in accordance with Art 4 of Common Position 2001/931/CFSP, OJ 2003, L 16/68–70.

(209) See for the most recent decision: Council Decision 2009/62/EC of 26 January 2009 implementing Art 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2008/583/EC, OJ 2009 L 23/25–9.

(210) For the first regulation: Council Regulation 501/2009/EC of 15 June 2009 implementing Art 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2009/62/EC, OJ 2009 L 151/14–16.

(211) ibid; and Art 249(2) EC.

(212) See Art 2(3) of Council Regulation EC/2580/2001, of 27 December 2001, OJ 2001 L 344/70.

(213) Eg: Commission Reg EC/2062/2001 of 19 October 2001 amending, for the third time, Regulation EC/467/2001, OJ 2001 L 277/25; Commission Reg EC/553/2007 of 22 May 2007 amending for the 77th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001, OJ 2007 L 131/16.

(214) For example: Case T-338/02, Segi and others [2004] ECR II-01647; Case C-355/04 P, Segi v Council [2007] ECR I-1657; See Chapter 3 and 6 for more detail.

(215) See Chapter 6.

(216) Some measures are not applied to all those listed.

(217) Case T-284/08, OMPI III (n 30 above); Case T-256/07, OMPI II (n 174 above); appeal pending: Case C-576/08 P, People's Mojahedin Organization of Iran; Case T-228/02, OMPI I (n 36 above); Case T-229/02, Kurdistan Workers’ Party, Kurdistan National Congress v Council (PKK) [2005] ECR II-539; Case T-47/03, Sison (n 174 above); Case T-47/03 R, Jose Maria Sison v Council and Commission [2003] ECR II-2047.

(218) Case T-338/02, Segi (n 214 above).

(219) Case C-355/04 P, Segi (n 214 above); see Chapter 6 for more details on protection from autonomous European sanctions.

(220) See for more detail: Notice for the attention of the persons, groups and entities on the list provided for in Art 2(3) of Council Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (see Annex to Council Decision 2009/62/EC of 26 January 2009), OJ C 20/24–5.

(221) For the implementation of SC sanctions resolutions see above all: Gowlland-Debbas, Sanctions Regimes under Article 41 of the UN Charter (n 50 above); and: Gutherie, Security Council Sanctions and the Protection of Individual Rights (n 21 above), p 516; on the effects of UN Security Council resolutions in national law more in general: Eric Stein, ‘Application and Enforcement of International Organization Law by National Authorities and Courts’ in Stephen Schwebel (ed), The Effectiveness of International Decisions (Leyden: Sijthoff, 1971), p 68; Vera Gowlland-Debbas, ‘Comments’ in Harry Post (ed), International Economic Law and Armed Conflict (Dordrecht: Nijhoff, 1994), p 165; Ricardo Pavoni, ‘UN Sanctions in EU and National Law: The Centro Com Case’, ICLQ, 48 (1999), pp 582–612.

(222) Dewulf and Pacquée, ‘Protecting Human Rights in the War on Terror: Challenging the Sanctions Regime Originating from Res 1267 (1999)’ (n 39 above), p 614.

(223) For the purpose of example some non-European countries: Commonwealth of the Bahamas Report on UN Security Council Resolution 1455, p 3, UN Doc S/AC.37/2003/(1455)/43 (2003); Report of Canada on UN Security Council Resolution 1455 (2003), pp 2–4, UN Doc S/AC.37/2003/(1455)/20 (2003), Report of Australia on Security Council Resolution 1455 (2003), pp 5–6, UN Doc S/AC.37/2003/(1455)/13 (2003).

(224) See at: Gutherie, Security Council Sanctions and the Protection of Individual Rights (n 21 above), p 517 referring to the Report of the Argentine Republic on the implementation of Security Council resolution 1455 (2003), para 4, UN Doc S/AC37/2003/(1455)/29 (2003).

(225) Report of the Czech Republic in Fulfilment of United Nations Security Council Resolution 1455 (2003) S/AC.37/2003/(1455)/59, para 6; Report of the Republic of the Fiji Islands to Security Council Committee Al-Qaida and Taliban Resolution 1267, S/AC.37/2004/(1455)/39, paras 3 and 6; Report of the United Republic of Tanzania Pursuant to Security Council Resolution 1455 (2003), S/AC.37/2005/(1455)/10, para 3.

(226) See eg: Swiss Supreme Court (Schweizer Bundesgericht), Youssef Mustapha Nada v SECO, Staatssekretariat für Wirtschaft, judgment of 14 November 2007, 1A.45/2007/daa, para 8.3; for Germany: Spiegel, issue No 14/2006, p 43; see for the Swedish efforts to delist Yusuf and Al Barakaat: Stenhammar (n 111 above), pp 317–20.

(227) SFS nr: 2001:126, 2001:576, 2001:1271: Tillkännagivande om EG-förordningar med anledning av lagen (1996:95) om vissa internationella sanktioner.

(228) SFS nr: 1996:95: Lag om vissa internationella sanktioner.

(229) ibid, para 8.

(230) Alternative report to ‘Comments by the Government of Sweden on the Concluding Observations of the Human Rights Committee’ (CCPR/CO/74/SWE) by The Swedish NGO Foundation for Human Rights and The Swedish Helsinki Committee for Human Rights www.humanrights.se/svenska/Follow-up%20report%20HRC%202.pdf; see also for Switzerland: Thomas Meerpohl, Individualsanktionen des Sicherheitsrates der Vereinten Nationen: Das Sanktionsregime gegen die Taliban und Al-Qaida vor dem Hintergrund des Rechts der VN und der Menschenrechte (München: Herbert Utz Verlag, 2008), p 262.

(231) Questioned by the applicants in Case T-306/01 R, Aden (n 112 above), para 98.

(232) See: A, K, M, Q, G v HM Treasury [2008] EWCA Civ 1187, paras 128–9; see by analogy the discussion of the shift in competence in the European Union resulting from the adoption of individual sanctions on the legal basis for state sanctions.

(233) Comments to Art 24 in: Theodor Maunz, Günter Düring, and Roman Herzog, Kommentar zum Grundgesetz (München: Beck Verlag, 2005).

(234) Until 1992 the direct applicability of EC law was based on Art 24(1) of the German Constitution; see today: Art 23.

(235) Jochen Frowein, ‘Implementation of Security Council Resolutions taken under Chapter VII in Germany’ in Eibe Riedel (ed), German Reports on Public Law (Baden-Baden: Nomos, 2002), p 11.

(236) Außenwirtschaftsgesetz, in combination with the specific regulation for foreign trade (Außenwirtschaftsverordnung); criminal sanctions for infringing sanctions rules are based on s 34 of the Foreign Trade Act.

(237) See Section 4.1 above.

(238) Antonio Cassese, International Law (Oxford: Oxford University Press, 2005), p 232 et seq.

(239) Frowein, Implementation of Security Council Resolutions taken under Chapter VII in Germany (n 235 above), p 13 with further references.

(240) See on the legality of EC criminal measures: Ester Herlin-Karnell, ‘Commission v Council: Some Reflections on Criminal Law in the First Pillar’, European Public Law, Vol 13(1) (2007), pp 69–84.

(241) Gesetz zur Bekämpfung des internationalen Terrorismus, BGBl 2002 I, 361ff.

(242) Bundesverfassungsschutz, militärischer Abschirmdienst (MAD), Bundesnachrichtendienst.

(243) Anfangsverdacht.

(244) Articles 1–6 Antiterrorismusgesetz.

(245) Shaw, International Law (n 12 above), p 1048 et seq; see eg SC Res 731, referring to ‘acts of international terrorism that constitute threats to international peace and security’. The same is true for the General Assembly [See eg: International Convention against the Taking of Hostages, GA res. 34/146 (XXXIV), 34 UN GAOR Supp (No 46) at 245, UN Doc A/34/46 (1979); Declaration on Measures to Eliminate International Terrorism, A/RES/49/60, 84th plenary meeting 9 December 1994;] Convention for the Suppression of the Financing of Terrorism (n 167 above) and the Council of Europe (see the European Convention on the Suppression of Terrorism, 1977, but compare also the Protocol amending the Convention adopted by the Committee of Ministers of the Council of Europe in February 2003).

(246) See also: Implementation of the UN Global Counter-Terrorism Strategy (n 1 above); see for an overview of the UN action to counter terrorism: http://www.un.org/terrorism/strategy-counter-terrorism.shtml.

(247) See the work of the FATF below; but also: Concepcion Verdugo-Yepes, ‘Enhancing International Cooperation in the Fight Against the Financing of Terrorism’, Journal of Global Change and Governance, Vol 1(3), p 1 et seq.

(248) SC Res 1817 (2008); SC Res 1822 of 30 June 2008.

(250) See the positive appraisal of the CTITF’s work by the General Assembly at: A/RES/62/272 of 15 September 2008.

(251) See eg the general statement on the problem of terrorism in SC Res 1566 (8 October 2004); but also: SC Res 1624 (2005), and more recently: 2nd recital of SC Res 1822 (2008).

(252) General Assembly Resolution (A/RES/60/288), of September 2006, 60th session, The United Nations Global Counter-Terrorism Strategy.

(253) Report of the High-level Panel on Threats, Challenges and Change (n 147 above), paras 145–64.

(254) UN Doc A/RES/54/109 of 9 December 1999.

(255) Terrorist acts are understood to be those acts covered by an attached list of anti-terrorist Conventions or any other act intended to cause death or serious injury to a civilian or any other person not active in hostilities during an armed conflict in order to intimidate a population or compel a government or international organisation to do or abstain from doing something.

(256) Iain Cameron, ‘Respecting Human Rights and Fundamental Freedoms and EU/UN Sanctions: State of Play’, October 2008, Study requested by the European Parliament’s Subcommittee on Human Rights, EXPO/B/DROI/2008/34, p 34.

(257) Erin Miller, ‘The Use of Targeted Sanctions in the Fight Against International Terrorism: What about Human Rights?’ in American Society of International Law, An Imperial Security Council? Implementing Security Council Resolutions 1373 and 1390. Proceedings of the Annual Meeting (Washington DC: American Society of International Law, 2003), vol 97, p 48; see also the interpretation of the CFI at: Case T-228/02, OMPI I (n 36 above), para 130 and Case T-47/03, Sison (n 174 above), para 177.

(258) In later rulings the CFI used the term ‘precautionary measures’, see eg Case T-253/02, Ayadi (n 42 above), para 135.

(259) See in the midst of the Cold War: John Lord O’Brian, National Security and Individual Freedom (Cambridge: Harvard University Press, 1955), pp 24–5.

(260) See Chapter 3.

(261) FATF Annual Report 2007–08, of 30 June 2008. The Financial Action Task Force (FATF), established in July 1989, is an inter-governmental policy-making body whose purpose is inter alia to combat money laundering and terrorist financing.

(262) See: Alexander Kern, Rahul Dhumale and John Eatwell, Global Governance of Financial Systems – The International Regulation of Systemic Risk (Oxford: Oxford University Press, 2005), Chapter 2: Global Governance and International Standard Setting, p 67 et seq on the work of the FATF.

(263) The Nine Recommendations on Terrorist Financing relate to: (1) Ratification and implementation of UN instruments (in particular the UN International Convention for the Suppression of the Financing of Terrorism and SC Res 1373); (2) Criminalizing the financing of terrorism and associated money laundering; (3) Freezing and confiscating terrorist assets; (4) Reporting suspicious transactions related to terrorism; (5) International co-operation; (6) Alternative remittance (registering actors in informal money or value transfer networks); (7) Wire transfers; (8) Non-profit organizations; (9) Cash couriers; See also the Forty Recommendations (on money-laundering), both available at: http://www.fatf-gafi.org.

(264) ibid; the FATF developed a formalized policy for sanctioning states that do not comply.

(265) ibid, p 74.

(266) Kern, Dhumale and Eatwell, Global Governance of Financial Systems – The International Regulation of Systemic Risk (n 262 above), p 68.

(267) ibid and Supplementary information to ‘Anti-Money Laundering and Combating the Financing of Terrorism: Observations from the Work Program and Implications Going Forward’, staff report prepared by IMF Monetary and Financial Systems and Legal Departments and the World Bank, Financial Sector Vice-Presidency, 31 August 2005, p 10, available at: www.imf.org/external/np/pp/eng/2005/083105.htm; more critical: Concepcion Verdugo-Yepes, ‘Enhancing International Cooperation in the Fight Against the Financing of Terrorism’, Journal of Global Change and Governance, Vol 1(3), p 10.

(268) Supplementary information to ‘Anti-Money Laundering and Combating the Financing of Terrorism’, IMF Monetary and Financial Systems and Legal Departments and the World Bank, ibid; discussed by: Jean-Francis Thony and Cheong-Ann Png, ‘FATF Special Recommendations and UN Resolutions on the Financing of Terrorism: A Review of the Status of Implementation and Legal Challenges faced by Countries’, Journal of Financial Crime, Vol 14(2) (2007), pp 150–69.

(269) ibid, p 10.

(270) For more details, see above Section 3.1.1.

(271) Luis Hinjosa Martinez, ‘Las Sanciones del Consejo de Seguridad Contra al Qaeda y los Talibanes: Son realmente inteligentes?’, REDI, vol LVIII (2006), p 744.

(272) See the example of CTITF at: Implementation of the UN Global Counterterrorism Strategy (n 1 above), pp 4 and 34.

(273) See both the criticism and the improvements of the listing procedure at: Eighth Report of the Analytical Support and Sanctions Monitoring Team, UN Doc S/2008/324 (14 May 2008), para 27, see also below.

(274) Implementation of the UN Global Counterterrorism Strategy (n 1 above), p 3; Human Security Brief 2007, Featuring A Special Report – Dying To Lose: Explaining The Decline In Global Terrorism, Human Security Report Project, Simon Fraser University, Canada.

(275) See above all: Conor Gearty, Can Human Rights survive? (Cambridge: Cambridge University Press, 2006).

(276) See for a legal critique of the term ‘war on terror’: Mary Ellen O'Connell, International Law and the Global War on Terror, Cours et travaux/Institut des Hautes Etudes Internationales de Paris (Paris: Pedone, 2007).

(277) Guidelines on human rights and the fight against terrorism adopted by the Committee of Ministers on 11 July 2002 at the 804th meeting of the Ministers’ Deputies.

(278) Guideline II–Prohibition of arbitrariness: All measures taken by states to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment, and must be subject to appropriate supervision.

(279) Guideline III (2): When a measure restricts human rights, restrictions must be defined as precisely as possible and be necessary and proportionate to the aim pursued. See also Guideline IX (4).

(280) Guideline IX–Legal proceedings: 1. A person accused of terrorist activities has the right to a fair hearing, within a reasonable time, by an independent, impartial tribunal established by law. 2. A person accused of terrorist activities benefits from the presumption of innocence. 3. The imperatives of the fight against terrorism may nevertheless justify certain restrictions to the right of defence, in particular with regard to: (i) the arrangements for access to and contacts with counsel; (ii) the arrangements for access to the case-file; (iii) the use of anonymous testimony. 4. Such restrictions to the right of defence must be strictly proportionate to their purpose, and compensatory measures to protect the interests of the accused must be taken so as to maintain the fairness of the proceedings and to ensure that procedural rights are not drained of their substance.

(281) Compare: S/2007/132, 8 March 2007–Sixth Report of the Analytical Support and Sanctions Monitoring Team; S/2006/750, 20 September 2006– Fifth Report of the Monitoring Team pursuant to resolutions 1526 (2004) and 1617 (2005); S/2006/154, 10 March 2006– Fourth Report of the Monitoring Team pursuant to resolution 1526 (2004); S/2005/572, 9 September 2005– Third Report of the Monitoring Team pursuant to resolution 1526 (2004); S/2005/83, 15 February 2005– Second Report of the Monitoring Team pursuant to resolution 1526 (2004); S/2004/679, 25 August 2004– First Report of the Monitoring Team pursuant to resolution 1526 (2004); S/2003/1070, 2 December 2003– Second Report of the Monitoring Group pursuant to resolution 1455 (2003); S/2003/669, 8 July 2003 and S/2003/669/Corr.1, 17 July 2003– First Report of the Monitoring Group pursuant to resolution 1455 (2003); S/2002/1338, 17 December 2002– Third Report of the Monitoring Group pursuant to resolution 1390 (2002); S/2002/1050, S/2002/1050/Corr.1 and S/2002/1427, 20 September 2002Second Report of the Monitoring Group pursuant to resolution 1390 (2002); S/2002/541, 15 May 2002– First Report of the Monitoring Group pursuant to resolution 1390 (2002); S/2002/65, 15 January 2002– Report of the Monitoring Group on Afghanistan pursuant to resolution 1363 (2001).

(282) See pp 29 and 30 above.

(283) General Assembly, 2005 World Summit Outcome, A/RES/60/1, of 24 October 2005, para 106.

(284) ibid, para 109.

(285) SC Res 1822, para 28 (emphasis added).

(286) Goldman, Report of the Independent Expert (n 92 above); see also above.

(287) Williams, ‘Warning Indicators and Terrorist Finances’ (n 10 above); although terrorist attacks are cheap.

(288) SC Res 1373, para 4; Jeanne K Giraldo and Harold A Trinkunas, Terrorism Financing and State Responses: A Comparative perspective (Stanford, California: Stanford University Press, 2007).

(289) See below.

(290) See Chapters 5, 6 and 7.

(291) See TREVI (Terrorisme, Radicalisme, Extremisme, Violence Internationale), an independent consultative forum; but see also: the Schengen Agreement (although not exclusively intended to counter terrorism, it led to the establishment of the Schengen Information System (SIS), which is a comprehensive computerized repository on persons and goods considered to constitute a threat to society); see more broadly: Martin Trybus and Nigel White (eds), European Security Law (Oxford: Oxford University Press, 2007).

(292) Compare documents adopted only in September and October 2001: Conclusions of JHA Council Meeting of 21 September 2001, SN 3926/6/01; Solana: Joint EU-US statement on terrorism, 20 September 2001; Conclusions and Plan of Action of the Extraordinary European Council Meeting on 21 September 2001, SN 140/01, endorsed by the European Parliament on 4 October 2001; Conclusions, General Affairs Council Meeting of 17 October 2001; and Declaration, European Council Meeting of 19 October, SN4296/2/01.

(293) Jörg Monar, ‘Common Threat and Common Response? The European Union’s Counter-Terrorism Strategy and its Problems’, Government and Opposition, Vol 42, No 3 (2007).

(294) Eurostad, but also: Portela ‘The Efficacy of Sanctions of the European Union: When and why do they work?’ (n 28 above).

(295) See for counter-terrorist policies more in general: Monar, Common Threat and Common Response? The European Union’s Counter-Terrorism Strategy and its Problems (n 293 above).

(296) Council of the European Union, ‘A Secure Europe In A Better World–The European Security Strategy’, http://www.consilium.europa.eu/showPage.asp?id=266&lang=en&mode=g; see also: Becher (2003), pp 345–59.

(297) Conclusions and Plan of Action, 21 September 2001 (n 292 above).

(298) Presidency and CT Co-ordinator, ‘The European Union Counter-Terrorism Strategy’, Brussels, 30 November 2005, 14469/4/05 REV 4.

(300) Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism OJ L22/6/2002, 164/3; see also: Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on combating terrorism, OJ L 330/21–3; Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, OJ 2002, L 190/1; see also the legal challenges against the national implementation measures: Chapters Two, Five and Six. Both framework decisions are coherent with traditional legislative responses to terrorism: Yonah Alexander and Allan S Nanes (eds), Legislative Responses to Terrorism (Dordrecht: Martinus Nijhoff Publishers, 1986); David Charters (ed), Democratic Responses to International Terrorism (London: Cavendish Publishers, 1991).

(301) IP/07/1649: Fight Against Terrorism: stepping up Europe’s capability to protect citizens against the threat of terrorism; COM (2007) 649 final: Communication from the Commission to the European Parliament and the Council–Stepping up the fight against terrorism; COM (2007) 650 final: Proposal for a Council Framework Decision amending Framework Decision 2002/475/JHA on combating terrorism; adopted on 28 November 2008: Council Framework Decision 2008/919/JHA, ibid.

(302) COM (2007) 651 final: Communication from the Commission to the European Parliament and the Council on enhancing the security of explosives.

(303) COM (2007) 654 final: Proposal for a Council framework decision on the use of Passenger Name Record (PNR) for law enforcement purposes.

(304) Directive 2006/24/EC, OJ 2006 L105/54; the directive was adopted given the Declaration on Combating Terrorism adopted by the European Council on 25 March 2004, ‘[b]ecause retention of data has proved to be such a necessary and effective investigative tool for law enforcement in several Member States, and in particular concerning serious matters such as organised crime and terrorism…’ (Recitals 8–9).

(305) Case C-301/06, Ireland v Parliament and Council (Data Retention Directive), judgment of 10 February 2009 (confirming that Art 95 EC was the appropriate legal basis) and the constitutional complaint against the national implementation measure pending before the German Constitutional Court, interim decision: 1 BvR 256/08.

(306) The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, Council document of 3.3.2005, OJ 2005 C 53/1; see also: Communication from the Commission to the Council and the European Parliament – The Hague Programme: Ten priorities for the next five years The Partnership for European renewal in the field of Freedom, Security and Justice, Brussels, 10.5.2005, COM(2005) 184 final; Douglas-Scott (2004).

(307) The EU Counter-terrorism Coordinator is generally perceived as lacking teeth, see eg: Zimmermann, ‘The European Union and Post-9/11 Counterterrorism: A Reappraisal, Studies in Conflict & Terrorism’ (n 2 above), pp 133–4.

(308) Council Regulation 2007/2004, of 26 October 2004, establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ 2004 L 349/1. The six tasks of Frontex were to coordinate operational cooperation, train national border guards, do risk analyses, develop research, assist member states with technical and operational facilities, and organise joint return operations.

(309) See the reference to Europol in Conclusions and Plan of Action, 21 September 2001 (n 292 above): ’Member States will share with Europol, systematically and without delay, all useful data regarding terrorism. A specialist anti-terrorist team will be set up within Europol as soon as possible and will cooperate closely with its US counterparts…’; Europol and the United States of America have since concluded two agreements on the exchange of personal data (available at: www.europol.europa.eu), which have raised many concerns of data protection.

(310) Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, OJ L196/45, 2.8.2003 and Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, OJ L 309/15, 25.11.2005.

(311) See Section 6.1 above.

(312) See n 263 above; see also: Valsamis Mitsilegas and Bill Gilmore, ‘The EU legislative framework against money laundering and terrorist finance: a critical analysis in the light of evolving global standards’, International and Comparative Law Quarterly 56 (2007), pp 119–41.

(313) See eg: Steve Peers, ‘EU Responses to terrorism’, International and Comparative Law Quarterly 52 (2003), pp 227–43.

(314) Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (n 300 above).

(315) Convention for the Suppression of the Financing of Terrorism (n 167 above) and text accompanying n 245 above.

(316) Monar, ‘Common threat and common response? The European Union’s Counter-terrorism Strategy and its Problems’ (n 293 above) pp 293–6.

(317) The attempt to Europeanize the treat of terrorism can be seen in the first more substantial legislative act in the fight against terrorism: the Framework Decision on Combating Terrorism, of 13 June 2002 (n 300 above). The strongly worded preamble describes terrorism as a threat to the fundamental values that the EU is founded on, the political, constitutional and socio-economic foundations of the EU and its member states.

(318) See eg: Report on the Implementation of the European Security Strategy – Providing Security in a Changing World, Approved by the European Council held in Brussels on 11 and 12 December 2008 and drafted under the responsibilities of the EU High Representative Javier Solana, S407/08, p 4.

(319) Directive 2006/24/EC (n 304 above), recitals 8, 9 and 10.

(320) See Chapters 2 and 6.

(321) August Reinisch, ‘The Action of the European Union’ (n 79 above); Monar, Common threat and common response? The European Union’s Counter-terrorism Strategy and its Problems (n 293 above) (example of the 2002 Framework Decision on Combating Terrorism); Zimmermann, The European Union and Post-9/11 Counterterrorism: A Reappraisal, Studies in Conflict & Terrorism (n 2 above), p 130.

(322) Similar with regard to earlier counter-terrorist activities: Peter Chalk, West European Terrorism and Counterterrorism. The Evolving Dynamic (Basingstoke: Palgrave Macmillan, 1996), p 117.

(323) Report on the Implementation of the European Security Strategy (n 318 above), p 4.

(324) ibid.

(325) Council of the European Union, Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common Foreign and Security Policy, 3 December 2003 Doc 15579/03; see also: Council of the European Union, Basic Principles on the use of restrictive measures (sanctions), 7 June 2004, Doc 10198/1/04.

(326) Critical: Zimmermann, The European Union and Post-9/11 Counterterrorism: A Reappraisal, Studies in Conflict & Terrorism (n 2 above), pp 125 and 134; suggesting a criminal justice model: Cameron, ‘Respecting Human Rights and Fundamental Freedoms and EU/UN Sanctions’ (n 256 above).

(327) See on the different views of selected EU Member States: Ariane Chebel d’Appollonia and Simon Reich, Immigration, Integration, and Security, America and Europe in Comparative Perspective (Pittsburgh: University of Pittsburgh Press, 2008).

(328) See Section 6.1 above.

(329) See Chapter 3.

(330) Guild (2008), pp 173–93.

(331) See eg: Magnus Ranstorp (Director of the Centre for the Study of Terrorism and Political Violence, St Andrews), ‘The European Terror Challenge’, available at: http://news.bbc.co.uk/2/hi/europe/3563713.stm.

(332) Report on the Implementation of the European Security Strategy, 2008 (n 318 above).

(333) See also Chapter 7 on the proportionality of individual sanctions.

(334) Including the three ’Anti-Terror-Gesetze’: Gesetz zur Ergänzung des Ersten Gesetzes zur Reform des Strafverfahrensrechts vom 20. Dezember 1974, Bundesgesetzblatt (BGBl.) 1974 I, 3686; Gesetz zur Änderung des Strafgesetzbuches, der Strafprozessordung und des Strafvollzugsgesetzes, der Bundesrechtsanwaltsordnung und der Strafvollzugsgesetzes vom 18. August 1976, BGBl. 1976 I, 2181; Gesetz zur Änderung der Strafprozessordung vom 14 April 1978, BGBl. 1978 I, 497.

(335) Gesetz zur Bekämpfung des internationalen Terrorismus, 9 January 2002 (Terrorismusbekämpfungsgesetz), Bundesgesetzblatt (BGBl.) I 361, 3142.

(336) Jutta Limbach speaks of an ‘unbroken line of political activism in the fight against terrorism’ (‘Human Rights in Times of Terror – Is Collective Security the Enemy of Individual Freedom?’, Göttingen Journal of International Law, 1 (2009), 19); for a more provocative journalistic account: Heribert Prantl, Der Terrorist als Gesetzgeber. Wie man mit Angst Politik macht (Droemer Knaur 2008); see for an overview of the legislative activity in the immediate aftermath of 11 September 2001 the report of the Counter Terrorist Committee S/2002/11 of 2 January 2002.

(337) Gesetz zur Neuregelung der Telekommunikationsüberwachung und anderer verdeckter Ermittlungsmaßnahmen sowie zur Umsetzung der Richtlinie 2006/24/EG, 21 December 2007, BGBl. I, 3198, implementing: Directive 2006/24/EC (n 304 above).

(338) See: Countering International Terrorism: The United Kingdom's Strategy (n 3 above).

(339) See cases in Chapter 4.

(340) See the case of Case T-228/02, OMPI I (n 36 above) in Chapters 6 and 7.

(341) Mr Anthonius de Vries, the EU’s sanctions coordinator in the late 1990s, acknowledged that evidence of the effectiveness of individual sanctions is ‘unavailable’, at: House of Lords, Select Committee on Economic Affairs, 2nd Report of Session 2006–07, The Impact of Economic Sanctions, Volume II: Evidence, Published 9 May 2007, p 166; see also: Giraldo and Trinkunas, ‘Terrorism Financing and State Responses: A Comparative perspective’ (n 288 above); Parker ‘The Problem with Scorecards’ (n 14 above); Swiss Federal Office for Foreign Economic Affairs, 2nd Interlaken Seminar on Targeting United Nations Financial Sanctions, 29–31 March, 1999, pp 101–15. See also more generally on the effectiveness of counter-terrorist measures: Human Security Brief 2007, Featuring a Special Report – Dying To Lose: Explaining The Decline In Global Terrorism, Human Security Report Project, Simon Fraser University, Canada, see in particular Overview and Chapter 1, pp 1–21, available at: http://www.humansecuritybrief.info/.

(342) See above for comparisons to earlier years; Eighth Report of the Analytical Support and Sanctions Monitoring Team (n 46 above), para 23, p 12 and para 47, p 19.

(343) Sixth report of the Analytical Support and Sanctions Monitoring Team, UN S/2007/132 (8 March 2007), para 52

(344) ibid, para 55.

(345) ibid, paras 53–4.

(346) House of Lords, Select Committee on Economic Affairs, 2nd Report of Session 2006–07, The Impact of Economic Sanctions, Volume I: Report, Published 9 May 2007, Chapter 5: Targeted Financial Sanctions on Individuals and Groups, p 26, para 68.

(347) ibid, p 24, para 64.

(348) ibid, p 26, para 69.

(349) National Commission on Terrorist Attacks on the US, The 9/11 Commission Report, 2004, http://govinfo.library.unt.edu/911/report/911Report.pdf, p 382.

(350) Eg: Cameron, ‘Respecting Human Rights and Fundamental Freedoms and EU/UN Sanctions’ (n 256 above), p 34; Martinez, Las Sanciones del Consejo de Seguridad Contra al Qaeda y los Talibanes:¿ Son realmente inteligentes? (n 271 above), p 738; Giraldo and Trinkunas, Terrorism Financing and State Responses: A Comparative perspective (n 288 above).

(351) Cameron, ibid, p 34.

(352) Case T-256/07, OMPI II (n 174 above), para 136.

(353) Williams, ‘Warning indicators and Terrorist Finances’ (n 10 above), p 74.

(354) Sixth report of the Analytical Support and Sanctions Monitoring Team, UN S/2007/132 (8 March 2007), para 23, emphasis added.

(355) Eighth Report of the Analytical Support and Sanctions Monitoring Team (n 46 above), para 24, p 12.

(356) Eighth Report of the Analytical Support and Sanctions Monitoring Team, ibid, para 27, p 13.

(357) Peter Fitzgerald, ‘Compliance Issues Associated with Targeted Economic Sanctions’ (n 39 above) pp 149–58; for the US: Peter Fitzgerald, ‘Managing “Smart Sanctions” against Terrorism Wisely’ New England Law Review, 36 (2002), pp 957–83.

(358) Fitzgerald, ‘Compliance Issues Associated with Targeted Economic Sanctions’ (n 39 above), p 150.

(359) Fitzgerald, ‘Managing “Smart Sanctions” against Terrorism Wisely’ (n 357 above), p 962.

(360) ibid, p 966.

(361) ibid, p 971.

(362) ibid, p 974; Fitzgerald, ‘Compliance Issues Associated with Targeted Economic Sanctions’ (n 39 above), p 151; see on the difficulties of identifying individuals at the UN level: Dewulf and Pacquée (n 39 above), p 616 et seq.

(363) Fitzgerald, ‘Managing “Smart Sanctions” against Terrorism Wisely’ (n 357 above), p 976.

(364) Andrea Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Anti-terrorism Measures: The Quest for Legitimacy and Cohesion’, European Journal of International Law, 17 (2007) pointing out the lack of political support.

(365) Meinhard Hilf and Saskia Hörmann, in Pierre-Marie Dupuy (ed), Völkerrecht als Wertordnung: Festschrift für Christian Tomuschat: essays in honour of Christian Tomuschat (NP Engel Verlag 2006).

(366) Implementation of the UN Global Counterterrorism Strategy (n 1 above), p 3.

(367) Christian Tomuschat ‘Internationale Terrorismusbekämpfung als Herausforderung für das Völkerrecht’, Vortrag anlässlich der Eröffnung des Wintersemesters 2005/2006, Speyer, 15. November 2005, Speyer, Deutsche Hochschule für Verwaltungswissenschaften 2006, p 6.

(368) Cassese, International Law (n 238 above), p 234 et seq; Thomas Franck, ‘Individuals and Groups of Individuals as Subjects in International Law’, p 97 et seq and Stephan Hobe (1998), ‘Individuals and Groups as Global Actors’, both in: Rainer Hofmann and Nils Geissler (ed), Non-State Actors as New Subjects of International Law (Berlin: Duncker & Humblot, 1999), p 115 et seq; Anne-Marie Slaughter, ‘Rogue Regimes and the Individualization of International Law’, New England Law Review, 36 (2002), p 815, at 818; Theodor Meron, The Humanization of International Law (Leiden: Brill Publishers, 2006), p 353.