An assessment of the EU courts' response to counter terrorism: to what extent does it effectively protect human rights?
An integral aspect of the general principles of law which the EU courts is pledged to uphold is the respect for fundamental human rights. The Charter of Fundamental Rights of the European Union was adopted at the Nice Summit in December 2000 (Smith, 2007), the rights enshrined in the Charter are to be recognised and applied by the member states and the institutions of the community when implementing community law (Article 51), thus it is targeted to make the institutions more accountable in terms of human rights. The European Union Counter-Terrorism Strategy was adopted in December 2005 committed "To combat terrorism globally while respecting human rights, and make Europe safer, allowing its citizens to live in an area of freedom, security and justice"(Europa, 2006).
In order to combat terrorism, international organisations and states have adopted numerous initiatives and policies especially since 9/11.However, these counter terrorism measures constitute certain challenges to the international legal system. Human rights are often ignored in the bid to fight terrorism. Balancing anti-terrorism measures and the maintenance of human rights standards is important otherwise fighting terrorism would be self defeating, both must be pursued simultaneously as integral components of counter terrorism strategies.
This essay seeks to assess through the Kadi v council and commission case, the extent to which the rulings from the Courts of the European Community/Union highlight their ability and willingness to effectively protect human rights whilst fighting terrorism.
The Security council has been the primary architect of the United Nations' response to terrorism and the body charged with the 'primary responsibility for the maintenance of international peace and security' (Article 24(2), Charter of the United Nations).
The UN Security Council in a bid to combat international terrorism set up a broad counter terrorism regime and imposed financial sanctions on the Taliban through Resolution 1267 and concluded that the Taliban's actions in Afghanistan threatened international peace and security (Tridimas, 2009). Acting under Chapter VII of the UN Charter, the Security Council established a regime of sanctions to impose an arms embargo and a travel ban on, and freeze the assets of entities and individuals listed as an associate of Osama bin Laden, Al-Qaeda, the Taliban or their affiliates.
The Security Council established the 1267 committee which is composed of the members of the Security Council to monitor state compliance with the obligation according to the resolution and to maintain an updated list of entities and individuals linked with these groups whose assets are therefore to be frozen. Hudson (2007) argues that Member states may submit a name to the 1267 Committee and if agreed upon by the Committee members, the name is added to the list. In the event that a group or person appears on the list, it is the obligation of all UN member states to freeze their assets, prevent arms supply to such group or individual and to bar such from travelling. The council of the European Union enacted the UN Security Council resolutions via common positions into European law and member states were obliged to enforce and comply with them.
The individuals or groups whose names appear on the list may submit a request for de-listing via their state of residence or citizenship. It is at the discretion of the sanctions committee to decide whether or not to remove a person from the consolidated list, however, the committee is not a judicial body but rather a political organ (Barker, 2009). The process of de-listing request in practice is a matter of intergovernmental agreements among UN member states involved. The procedure of freezing the assets of individuals and groups give rise to serious concerns over human rights and due process. The sanctions committee does not justify its decision to include an individual or group on the consolidated list, and equally not answerable for rejecting the de-listing request.
As a result of this, individuals and entities listed absolutely have no idea why their names were proposed for the list and the committee conviction as to approve or reject the request for listing/de-listing. An individual or entity is extremely disadvantaged to challenge their listing in the absence of the evidence and material the committee relies upon. (Jones and Zgonec-Roej, 2009).
Challenges have been made in the courts of the EU by people whose assets had been frozen. One of such is the landmark Case T-315/01 Kadi v Council and Commission. According to the facts of the case, the applicant Mr Kadi resident in Saudi Arabia was listed in Annex I to Regulation No 467/2001 as a suspect of supporting terrorism on 19 October 2001.As such, his financial resources and funds in the community were to be frozen. Despite the fact that that regulation was repealed and replaced by Council Regulation (EC) No 881/2002 (the contested regulation) on 27 May 2002 (The Nefa Foundation, 2008), the applicant continued to be included in the list as a suspect of supporting terrorism whose funds were to be frozen.
The applicant alleged that his professional and personal reputation had been damaged by his name being included in the list and held that he was a victim of injustice stating that he had never in any way financed terrorism whether connected to Osama bin Laden, Al-Qaeda or otherwise.
The applicant brought before the Court of First Instance actions for annulment claiming that the Council was incompetent to adopt that regulation and asserted that the regulation breached several of his fundamental rights in particular the right to property (thus violating Article 1 protocol 1 of the ECHR and the general principles of community law) and the right to a fair hearing (Europa, 2008). The applicant argued that the Council and Commissions' reliance on the Security Council resolution do not bestow on those institutions the power to abolish those fundamental rights in the absence of justifying that stance by producing necessary evidence before the court. Furthermore, the applicant stressed that the actions of the European Union must be justifiable by referring to its own powers and duties, and independent of the United Nations as a legal order governed by its own rules of law (Europa, 2008).
The applicant alleged that his right to effective judicial review was breached observing that in the judgement of case 222/84 Johnston  ECR 1651, paragraph 18, the court of justice ruled that a general principle of community law includes the right to effective judicial review and as such, he (the applicant) was entitled to judicial review with regard to a community regulation (Johnston, 2009).
The Court of First Instance in its judgement of 21 September 2005 rejected the applicant's arguments and upheld the regulation as valid. The CFI held that community courts in principle lacked jurisdiction to review the validity of the regulation, given that member states are obliged to abide by the Security Council's resolution according to the terms of the United Nations Charter which as an international treaty dominates community law (Payandeh and Sauer,2009), the CFI referring to Article 103 of the UN Charter, which provides that '(i)n the event of a conflict between the obligations of the Members of the United Nations under the (...) Charter and their obligations under any other international agreement, their obligations under the (...) Charter shall prevail'.
The CFI asserted that European law cannot supersede that of the UN resolution, except in respect to jus cogens rights. Jus cogens are peremptory norms from which no derogation is permitted, they apply universally and agreements contrary to these peremptory norms are void as defined in Article 53 of the 1969 Vienna Convention on the Law of Treaties (Orakhelashvili, 2006). The Court of First Instance held that there was no violation of jus cogens and consequently dismissed the actions in their entirety.
This raises the key question of whether the rights to property, the right to an effective remedy and the right to a fair hearing had the status of jus cogens. Concerning the rights to an effective judicial review and the rights to a fair hearing, the Court asserted that in as much as there were no other judicial remedy accessible to the applicants, 'any such lacuna in judicial protection was not in itself contrary to jus cogens' (Michaelsen, 2009). As far as the right of property was concerned, the court held that it could only be regarded and protected as a jus cogens rights when arbitrary deprivations was the case, however, in respect to the case at hand, the Court of First instance concluded that the applicants right to property had not been arbitrarily deprived and the applicants assets were deprived for a good reason which was his being a suspect to terrorism.
The Court of First Instance's interpretation of the jus cogens rights could be considered as rather vague, the interpretation of jus cogens rights by the CFI is highly critical because it declares that in some circumstances, the rights to protection of property may be regarded as jus cogens and in other circumstances may be seen as not in violation of jus cogens rights. This idea broadened and tampered with the scope of jus cogens rights
Also, the CFI defined jus cogens as 'a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible'(Michaelsen,2009).However, this created an element of uncertainty because the jus cogens standards is not a well-established principle concerning human rights protection in the case law of the ECJ. Also, it is not every fundamental right that peremptory rules of international law protects. The jurisprudence of the international court of Justice does not clearly offer guidance on this point as well.
Jus cogens rights are not expressly mentioned by the ICJ in its case law and as such, the exact scope of peremptory rights cannot be determined (Tridimas, 2009) however, there is a general consensus of jus cogens rights prohibiting slavery, genocide, torture, apartheid, respect for norms of international humanitarian law and elementary human rights, the use of threat or force and particularly prohibiting war crimes and crimes against humanity. (Cassese, 2005). The CFI thus indirectly reviewed the UN secretary Council's resolution within the context of its own notion of what jus cogens rights should be.
The aforementioned contributed to the applicant's decision to appeal to the Court of Justice against the judgements of the Court of First Instance
First, the Court of Justice held that based on Articles 60,301 and 308 EC Treaty, the Council was competent to adopt the United Nations Security Council Resolution by means of an EC regulation. However, the Court of Justice held that the Court of First Instance erred in law ruling that the community courts had no jurisdiction to review the lawfulness of the contested regulation (Tridimas, 2009).The ECJ stated in contrast to the judgement of the CFI :
The Community judicature must . . . ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like the contested regulation, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations. (Posch, 2009 Vol.15:1)
The Court distinguished between reviewing the lawfulness of an international agreement of which the EU Courts cannot do, and reviewing an EC measure intended to give effect to the international agreement at issue and reviewing an EC measure intended to give effect to the international agreement at issue which the EC courts can and should do.
The ECJ rejected the CFI's approach, stating that while UNSC resolutions are binding in international law, the resolutions implementing them should be reviewed under community law particularly human rights standards of that law. The ECJ held that the regulations breached the rights to be informed on the basis of which the applicants name appeared on the list and the right to be heard in challenging the listing. (Chatham House, 2009).Furthermore, it held that the rights of the defence, particularly the rights to effective judicial review and the rights to be heard were 'patently not respected' in light of the actual circumstances surrounding the inclusion of the name of the applicant in the list (Ziegler, 2009).
It pointed out that an effective judicial review means communication to the person or entity concerned the grounds of which the issue is based in order to enable those persons or entities to exercise their right to bring an action. The Court of Justice conceded that the applicant was also denied the right to a legal remedy, stating that the Council did not inform the applicant of the evidence brought against him so as to justify the inclusion of his name on the list (Johnston, 2009). The court also held that freezing the applicants funds constituted an unjust restriction of his right to property which if he had an opportunity to make presentations to the Council, could be justified.
The Court annulled the Council regulations in so far as it freezes the applicant's funds and maintained for a period of three months running from judgement the effects of the regulation, in order to allow the council to remedy the violations of rights found.
The Kadi v Council and Commission is one of the most important judgments delivered by the ECJ on the relationship between Community and international law. The judgement of the ECJ leaves a wide range of interpretations in terms of the interplay between EU law and international law.
It is submitted that the ECJ's approach in the Kadi v Council and Commission case is more appropriate in the protection of fundamental human rights while tackling terrorism. The ECJ's judgement represents a strong commitment to fundamental rights and the (European) rule of law.
Respecting human rights while fighting terrorism is not only a matter of principle but indeed vital to successfully countering terrorism. Human rights provide vital guidepost to an effective counterterrorism strategy.
The ECJ reviewed with EU human rights standards the consistency of an EU regulation to implement sanctions aimed at combating terrorism adopted by the UN Security Council.
While CFI accepted explicitly the possibility of reviewing the lawfulness of the resolutions of the Security Council in narrowly defined circumstances, the ECJ on the other hand rather avoided a direct confrontation stating that it was only reviewing in EU law the validity of the contested EU regulation. However to varying extents, there had been some form of judicial review directly or indirectly of the lawfulness of the Security Council resolution by both levels of the EU court systems. (Ziegler, 2009)
The ECJ in the kadi case prioritized the rule of law and fundamental human rights over inconsistent standards, a regional European court having a limited geographical scope ended up indirectly reviewing the lawfulness of the Security Council resolutions of which all states of the world are virtually bound by. Even the Security Council should be held accountable for allegedly violating human rights standards. The Security Council in enforcing its duties to maintain international peace and security is obliged to "act in accordance with the Purposes and Principles of the United Nations," (Article 24(2), Charter of the United Nations), and one of the United Nations "Purposes" is "to achieve international co-operation ... in promoting and encouraging respect for human rights and for fundamental freedoms for all..." (Article 1(3), Charter of the United Nations).
However, one key question is on the possibility of implementing the Security Council sanctions regime without breaching human rights. In the same vein, could the 'autonomy' of the EU legal regime prevent the implementation of the United Nations sanctions by EU member states and in the process undermine the Security Council's global fight against terrorism?
In response to the aforementioned questions, the judgement of the ECJ builds upon years of protecting and developing human rights, the basic question before the court was whether the rule of law should be compromised in fighting terrorism and the court said 'no'.
However, according to Michaelsen (2009), this approach risk the international legal order and the European Union in the message it sends to the courts and organisations of other states contemplating the enforcement of the resolutions of the Security Council's resolution as well as risk undermining the image the EU has created as an international actor that maintains a commitment distinctive to international law and institutions.
The rule of law and respect for human rights must be the foundation of the global fight against terrorism. This requires a counterterrorism strategy that seeks to prevent acts of terrorism by prosecuting those responsible for such heinous crimes and at the same time, promote and protect human rights and the rule of law. Measures of effective counter terrorism and the protection of human rights are mutually reinforcing and complementary objectives which must be pursued together as part of the duty of states to protect individuals within their jurisdiction (UNHCR, 2008). The protection and promotion of human rights is not only vital to fighting terrorism, states also have to ensure that any measure adapted to counterterrorism is in line with their international human rights obligations.
The decision of the ECJ on the kadi v council and commission case shows to a large extent that the court has a regard for human rights while fighting terrorism. However, this decision greatly contrasts with that of the CFI in protecting and promoting fundamental human rights whilst countering terrorism.
Amnesty International (2008) concluded that there is still a huge gap between counter-terrorism and human rights observance and urges the European Council to state unequivocally that it will not compromise any EU or national law or practice in fighting terrorism that violates the protection of human rights and the rule of law.