International counterterrorism – national security and human rights: conflicts of norms or checks and balances?

Abstract

Security and human rights norms usually require a balancing act for their contemporaneous application but are often considered to conflict with one another. This is the case, especially when terrorism threats lead the executive branch to temporarily suspend or reduce its human rights obligations. Yet this presumption that these two norms inherently conflict is increasingly criticised. International terrorist sanctions regimes, such as that of the European Union and United Nations, are a prime example of this conflict because these organisations have been concurrently adopting counterterrorism measures, often through their executive branch and without any human rights protections. This article will use the 2008 Kadi case of the European Court of Justice as a framework to provide a contextual analysis of the term ‘conflict’ and provide criticism for the use of the conflict label to describe the relationship between national security policies and human rights, when norms of security and human rights should all form the benchmark of counterterrorism. This article will examine the legal issues created by the Kadi case and suggest that, despite the legal and normative uncertainties it raised, in practice, the case is an example of institutional conflict, or checks and balances that, in effect, actually enhances the fairness of sanctions regimes.

Keywords:

• international organisations
• counterterrorism
• conflicts
• national security
• human rights
• terrorist sanctions
• European courts
• sovereignty

Acknowledgements

The publication of this special issue of the International Journal of Human Rights was based on a conference organised in May 2014 at the Institute of Advanced Legal Studies, London. I would like to thank in particular my colleague and friend Dr Laura Niada, co-organiser of the conference, the editor in chief of the IJHR, Dr Damien Short, the reviewers for their comments, as well as Shifra Goldberg for her editing.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Myriam Feinberg is a Post-Doctoral Fellow of the Global Trust Project at the Buchmann Faculty of Law of the Tel Aviv University. She was previously Visiting Lecturer at King's College London. Her research interests include counterterrorism, human rights, international organisations and conflicts of norms.

Notes

1 Article 54 of the convention reads: ‘Treaties conflicting with a peremptory norm of general international law (jus cogens): A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’, United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, Vol. 1155, p. 331.

2 Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency's Detention and Interrogation Program (Executive Summary) (3 December 2014), http://www.washingtonpost.com/wp-srv/special/national/cia-interrogation-report/document/ (accessed January 2015).

3 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, Vol. 999, p. 171.

4 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos 11 and 14, 4 November 1950, ETS 5, article 10(2). Emphasis mine. Unless stated otherwise, all emphases are added by the author.

5 R. v. Secretary of State for Home Affairs ex. Parte Hosenball, [1977] 1 WLR 766, 778.

6 Jeremy Waldron, ‘Security and Liberty: The Image of Balance’, The Journal of Political Philosophy 11, no. 2 (2003): 191–210.

7 President Bush, 20 September 2001, Address to a Joint Session of Congress and the American People, http://www.washingtonpost.com/wp-srv/nation/specials/attacked/transcripts/bushaddress_092001.html (accessed January 2015).

8 United States, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) 107–56–OCT. 26, 2001 and Authorization for Use of Military Force § 2(a), 115 Stat. 224, 224 (codified at 50 U.S.C. § 1541 note) (2001).

9 It is too complex or lengthy to detail here but many authors have written about the consequences of the phrase ‘war on terror’ and the question of use of force in counterterrorism, see for instance Jonathan I. Charney, ‘The Use of Force against Terrorism and International Law', The American Journal of International Law 95 (2001): 835; David Abramowitz, ‘President, the Congress, and Use of Force: Legal and Political Considerations in Authorizing Use of Force against International Terrorism, Harvard International Law Journal 43 (2002): 71; Michael Byers, ‘Terrorism, the Use of Force and International Law after 11 September', International Relations 16 (2002): 155–70; Christopher Greenwood, ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida, and Iraq', San Diego International Law Journal 4 (2003): 7; Christine D. Gray, International Law and the Use of Force (Oxford: Oxford University Press, 2008); and Christian J. Tams, ‘The Use of Force against Terrorists', European Journal of International Law 20 (2009): 359–97.

10 UN Security Council, Security Council Resolution 1373 (2001) [On Threats to International Peace and Security Caused by Terrorist Acts], 28 September 2001, S/RES/1373 (2001), §1(b) and 2.

11 ‘Blair Vows Hard Line on Fanatics', BBC News, 5 August 2005: Former British Prime Minister Tony Blair said, at a press conference following the terrorist attacks in London in July 2005 ‘the rules of the game are changing’, http://news.bbc.co.uk/2/hi/uk_news/4747573.stm (accessed January 2015).

12 Remarks of John O. Brennan (Director of the Central Intelligence Agency) – As Prepared for Delivery, Program on Law and Security, Harvard Law School, Cambridge, Massachusetts, Friday, 16 September 2011, http://www.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our-values-an (accessed January 2015).

13 Daniel Moeckli, Human Rights and Non-discrimination in the ‘War on Terror’ (Oxford: Oxford University Press 2008), Oxford Monographs in International Law 7.

14 Thomas Poole, ‘Sovereign Indignities: International Law as Public Law', European Journal of International Law 22, no. 2 (2011): 351.

15 For general discussions on the link between security and human rights post 9/11, read Kent Roach, The 9/11 Effect – Comparative Counter-Terrorism (Cambridge: Cambridge University Press, 2011); Kent Roach, ‘Uneasy Neighbors: Comparative American and Canadian Counter-Terrorism', William Mitchell Law Review 38, no. 5 (2012): 1701–1803.

16 Goold and Lazarus, ‘Introduction Security and Human Rights: The Search for a Language of Reconciliation’, in Security and Human Rights, ed. Goold and Lazarus, 2.

17 Remarks of John O. Brennan (Director of the Central Intelligence Agency).

18 Milena Costas-Trascasas, ‘Terrorism, State of Emergency and Derogation from Judicial Guarantees', in International Legal Dimension of Terrorism, ed. Pablo Antonio Fernández Sánchez (Leiden: Brill, 2009), International Humanitarian Law Series, 471.

19 Moeckli, Human Rights and Non-discrimination in the ‘War on Terror’, 11.

20 Stavros Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’, International Journal of Constitutional Law 7 (2009): 477.

21 Guglielmo Verdirame, ‘Rescuing Human Rights from Proportionality', King’s College London Dickson Poon School of Law, Legal Studies Research Paper Series, paper no. 2014–14, forthcoming in Philosophical Foundations of Human Rights, ed. Rowan Cruft, S. Matthew Liao, and Massimo Renzo (Oxford: Oxford University Press, April 2015).

22 Sandra Freedman, ‘The Positive Right of Security’ and Liora Lazarus, ‘Mapping the Right to Security', in Security and Human Rights, ed. Goold and Lazarus, 307. For a history of how the concept evolved, see Rhoda E. Howard-Hassmann, ‘Human Security: Undermining Human Rights?’, Human Rights Quarterly 34, no. 1 (2012): 88.

23 Moufida Goucha and John Crowley, Rethinking Human Security (Chichester: John Wiley & Sons 2009), 5; Mark Duffield, Development, Security and Unending War: Governing the World of Peoples (London: Polity, 2007), 114.

24 Nasu Hitoshi, ‘The Expanded Conception of Security and International Law: Challenges to the UN Collective Security System', Amsterdam Law Forum 3 (2001): 3.

25 Ibid.

26 Paul Hoffman, ‘Human Rights and Terrorism', Human Rights Quarterly 26, no. 932 (2004): 949.

27 For instance, article 16 of the French Constitution of 1958 gives, in time of crisis, ‘extraordinary powers' to the president – Constitution of 4 October 1958. The American Constitution does not expressly grant the president additional powers in times of national emergency but the courts will recognise a right of the executive branch to use emergency powers if congress has granted such powers to the president (Legal Information Institute, Cornell Institute Law School, ‘War Powers'), United States of America: Constitution [United States of America], 17 September 1787.

28 It is important to note for example that the US has formally been in a state of emergency for a number of years now in relation to the terrorist threat: President Barack Obama extended several times George W. Bush's Declaration of Emergency regarding terrorism, more recently in September 2013: ‘Letter to the Congress of the United States', 10 September 2013, http://www.whitehouse.gov/the-press-office/2013/09/10/letter-continuation-national-emergency-message (accessed January 2015).

29 See notes 2, 3, 4 and 26 above, as well as Roach, The 9/11 Effect – Comparative Counter-Terrorism, for an analysis of counterterrorism post-9/11.

30 See for instance the United States v. Reynolds, 345 U.S. 1 case of 1953 where the court upheld ‘the privilege against revealing military secrets, a privilege which is well established in the law of evidence'; or more recently R v. Secretary of State for the Home Department, ex parte Cheblak [1991] 2 All ER 319 (CA) where the court held that national security was exclusively the responsibility of the executive.

31 Adam Tomkins and P. P Craig, eds, The Executive and Public Law: Power and Accountability in Comparative Perspective (Oxford: Oxford University Press, 2006), 1.

32 Christina Eckes, ‘Protecting Supremacy from External Influences: A Precondition for a European Constitutional Legal Order?’, European Law Journal 18 (2012): 233.

33 William Phelan, ‘Does the European Union Strengthen the State? Democracy, Executive Power and International Cooperation’ (Center for European Studies, Working Paper No. 95 2003), 5.

34 Jure Vidmar and Erica de Wet, eds, Hierarchy in International Law (Oxford: Oxford University Press 2012), 1.

35 The issue of the definition of terrorism is too complex to include here. For a discussion on the question of whether terrorism is defined at the international level, see Antonio Cassese, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law', European Journal of International Law 12, no. 5 (2001): 993; Ben Saul, ‘Reasons for Defining and Criminalising “Terrorism” in International Law’, Mexican Yearbook of International Law 6 (2006): 419; and Rosalyn Higgins and Maurice Flory Maurice, Terrorism and International Law (London: Routledge, 1997).

36 Eyal Benvenisti and George W. Downs, ‘Democratizing Courts: How National and International Courts Promote Democracy in an Era of Global Governance', Journal of International Law and Politics 46, no. 3 (Spring 2014): 749.

37 Vidmar and de Wet, Hierarchy in International Law, 4.

38 David Bonner, Executive Measures, Terrorism and National Security: Have the Rules of the Game Changed? (Aldershot: Ashgate Publishing, Ltd., 2007), ix.

39 UN Security Council, Resolution 1267 (1999) Adopted by the Security Council at its 4051st Meeting on 15 October 1999, 15 October 1999, S/RES/1267 (1999), Preamble.

40 Ibid., §4.

41 Details of the list can be found on http://www.un.org/sc/committees/1267/aq_sanctions_list.shtml (accessed January 2015).

42 Larissa Van den Herik and Nico J. Schrijver, ‘Introduction: The Fragmented International Legal Response to Terrorism', in Counter-Terrorism Strategies in a Fragmented International Legal Order, Meeting the Challenges (Cambridge: Cambridge University Press, 2015), 16.

43 Resolution 1373, §1(c).

44 Article L151-2, Article L562-1 and Article L562-2 of the Code Monétaire et Financier. For a full list of financial sanctions imposed by the French government, see the right tab on http://www.tresor.economie.gouv.fr/sanctions-financieres-internationales (accessed January 2015).

45 For updated instruments on both al-Qaida and terrorist groups in general, see the UK government website and in particular http://www.legislation.gov.uk/all?title=al-qaida and http://www.legislation.gov.uk/all?title=terrorist (accessed January 2015).

46 ‘Declaration Concerning the Common Foreign and Security Policy’, Consolidated version of the Treaty on European Union, OJ C 326, 26.10.2012, 13–390.

47 Article 5(2), Consolidated version of the Treaty on the Functioning of the European Union, OJ C 326, 26.10.2012, 47–390.

48 European Parliament Resolution, ‘The Evaluation of EU Sanctions as Part of the EU's Actions and Policies in the Area of Human Rights' (2008/2031 (INI), September 4, 2008), para. F.

49 Council Decision 2011/487/CFSP of 1 August 2011 amending Common Position 2002/402/CFSP 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, OJ L 199, 2.8.2011, 73.

50 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, and repealing Council Regulation (EC) No. 467/2001 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, OJ L 139, 29.5.2002, 9–22.

51 Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism, OJ L 344, 28/12/2001 P. 0093–0096.

52 Council Regulation (EC) No. 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, OJ L 344, 28/12/2001 P. 0070–0075 and updated annexes available at http://europa.eu/legislation_summaries/justice_freedom_security/fight_against_terrorism/l24402_en.htm#Amendingacts (accessed January 2015).

53 Antonios Tzanakopoulos, ‘Collective Security and Human Rights’, in Hierarchy in International Law: The Place of Human Rights, ed. Erika de Vet and Jure Vidmar (Oxford: Oxford University Press 2012) 51.

54 United Nations Charter article 103 declares that ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’

55 International Court of Justice, Question of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, Order-Request for the Indication of Provisional Measures (Libyan Arab Jamahiriya v. United Kingdom), 14 April 1992, §39. It must be noted here that in its order on provisional measures, the court repeatedly indicated that this did not prejudge questions of law and fact to be decided in further proceedings, although the question of conflict was never solved per se, following a compromise between the UK, the US and Libya.

56 See Case T-228/02, Organisation des Modjahedines du Peuple d'Iran v. Council [2006] ECR II-4665 (OMPI I) (12 December 2006); Case T-256/07, People's Mojahedin Organization of Iran v. Council [2008] ECR II-03019 (OMPI (II)) (23 October 2008); Case T-284/08, People's Mojahedin Organization of Iran v. Council (OMPI (III) (4 December 2008) and Nada v. Switzerland–10593/08 – HEJUD [2012] ECHR 1691.

57 Human Rights Committee (HRC), Communication No.1472/2006, Nabil Sayadi and Patricia Vinck v. Belgium (29 December 2008).

58 See for instance HM Treasury v. Mohammed Jabar Ahmed and ors (FC); HM Treasury v. Mohammed al-Ghabra (FC); R (on the application of Hani El Sayed Sabaei Youssef) v. HM Treasury [2010] UKSC 2.

59 The US Department of State and Department of the Treasury both compile lists of individuals and groups to be sanctioned. The Foreign Terrorist Organisations list is compiled by the Department of State and the Specially Designated Nationals List is by the Department of Treasury, under which Mr Kadi and Al Barakaat were listed. The current list is available at http://www.State.gov/j/ct/rls/other/des/123085.htm (accessed January 2015).

60 See European Commission Regulation 2062/2001/EC of 19 October 2001.

61 Case T-315/01 Kadi v. Council [2005] ECR II-3649, §233.

62 Ibid., §222.

63 Ibid., §226. In the case in point, the CFI held that no jus cogens has been violated, §240 and 242.

64 Joined Cases C-402/05 P & C-415/05 P, Kadi & Al Barakaat v. Council of the European Union and EC Commission, 3 C.M.L.R. 41 (2008).

65 Ibid., §283.

66 Ibid., §286.

67 Ibid., §283.

68 Ibid., §340.

69 Ibid., §346.

European Commission Regulation 1190/2008/EC of 28 November 2008. The statement of reason provided to Mr Kadi was provided originally to the French government by the UN Sanctions Committee. The French government then passed it on to the EU. See online updates of Trevor Hartley, The Foundations of European Union Law, 7th ed. (Oxford: Oxford University Press, 2010),

70 http://global.oup.com/uk/orc/law/eu/hartley7e/resources/updates/ (accessed January 2015). The statement of reason is also included in Case T-85/09 Kadi v. Commission [2010] OJ C317, §49. The statement focuses on Mr Kadi's involvement with the Muwafaq Foundation. It did not however provide any evidence of this.

71 Case T-85/09 Kadi v. Commission [2010] OJ C317.

72 Ibid., §114.

73 Ibid., §128.

74 Ibid., §127.

75 Ibid., §126.

76 Ibid., §173.

77 Ibid., §29.

78 Joined Cases C-584/10 P, C-593/10 P and C-595/10 P European Commission & the Council of the European Union v. Yassin Abdullah Kadi [2013] ECR.

79 European Commission Implementing Regulation (EU) No. 933/2012 of 11 October 2012 amending for the 180th time Council Regulation (EC) No. 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with the al-Qaida network, OJ L 278 , 12/10/2012 P. 0011–0012.

80 See Case T-228/02, Organisation des Modjahedines du Peuple d'Iran v. Council [2006] ECR II-4665 (OMPI I) (12 December 2006); Case T-256/07, People's Mojahedin Organization of Iran v. Council [2008] ECR II-03019 (OMPI (II)) (23 October 2008); Case T-284/08, People's Mojahedin Organization of Iran v. Council (OMPI (III) (4 December 2008).

81 Kadi & Al Barakaat v. Council of the European Union and EC Commission, (2008), §298-299.

82 European Commission & the Council of the European Union v. Yassin Abdullah Kadi, [2013], §111–130. These paragraphs contain a full analysis of the scope of the review.

83 United Nations Charter articles 25 and 39.

84 See note 54 above.

85 For instance, the UK court relied on article 103 in many of its counterterrorism cases. See R (on the application of Al-Jedda) v. Secretary of State for Defence, House of Lords [2007] UKHL 58.

86 Mehrdad Payandeh and Heiko Sauer, ‘European Union: UN Sanctions and EU Fundamental Rights', International Journal of Constitutional Law 7, no. (2009): 306, 312.

87 Roach, The 9/11 Effect – Comparative Counter-Terrorism, 37.

88 Takis Taki Tridimas and José A. Gutiérrez-Fons, ‘EU Law, International Law and Economic Sanctions against Terrorism: The Judiciary in Distress?’ (College of Europe 2008), Research Papers in Law, 704.

89 Juan Santos Vara, ‘The Consequences of Kadi: Where the Divergence of Opinion between EU and International Lawyers Lies?’, European Law Journal 17, no. (2011): 252, 265.

90 Ibid., 266.

91 Chatham House International Law Discussion Group, ‘UN and EU Sanctions: Human Rights and the Fight against Terrorism – The Kadi Case’, January 22, 2009.

92 See note 46 above.

93 Flaminio Costa v. ENEL [1964] ECR 585 (6/64) for the first occurrence and more recently Declaration No. 17 Concerning Primacy, Declarations annexed to the Final Act of the Intergovernmental Conference, which adopted the Treaty of Lisbon, signed on 13 December 2007.

94 Lando Kirchmair, ‘The “Janus Face” of the Court of Justice of the European Union: A Theoretical Appraisal of the EU Legal Order's Relationship with International and Member State Law', Goettingen Journal of International Law 4, no. 677 (2012): 679.

95 Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities (2008), §81.

96 Ibid., §285 et seq., 326–7.

97 Misa Misa Zgonec-Rozej, ‘Kafka, Sisyphus, and Bin Laden: Challenging the Al-Qaida and Taliban Sanctions Regime Rights', Essex Human Rights Review 8 (2011): 97.

98 Kirchmair, ‘The “Janus Face” of the Court of Justice of the European Union', 677.

99 Antonios Tzanakopoulos, ‘Sharing Responsibility for UN Targeted Sanctions', EJIL Talk, 14 February 2013, http://www.ejiltalk.org/sharing-responsibility-for-un-targeted-sanctions/ (accessed January 2015).

100 Nada v. Switzerland (2010), §180.

101 Nada v. Switzerland (Joint Concurring Opinion of Judges Bratza, Nicolau and Yudkivska), §1, 3 and 5.

102 Yassin Abdullah Kadi v. European Commission (2010), §128.

103 Erica de Wet, ‘From Kadi to Nada: Judicial Techniques Favoring Human Rights Over United Nations Security Council Sanctions', Chinese Journal of International Law 12 (2013): 14.

104 Antonios Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (Oxford: Oxford University Press, 2011).

105 For a recent analysis of the human rights obligations of the Security Council, see Karima Bennoune, ‘All Necessary Measures? Reconciling International Legal Regimes Governing Peace and Security, and the Protection of Persons, in the Realm of Counter-Terrorism', in Counter-Terrorism Strategies in a Fragmented International Legal Order, Meeting the Challenges (Cambridge: Cambridge University Press, 2015), 680 and following.

106 Shelly Danosh, ‘The Kadi Case: The International Position of the European Union after the Ruling’ (Working Paper, European Forum at the Hebrew University 2009), 42.

107 See R (on the application of Al-Jedda) (FC) v. Secretary of State for Defence, [2007] UKHL 58, United Kingdom: House of Lords (Judicial Committee), 12 December 2007, §34.

108 Ibid., §35.

109 Eckes, ‘Protecting Supremacy from External Influences', 245.

110 Council Regulation (EU) No. 1286/2009 of 22 December 2009 amending 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, OJ 2009 L 346 of 2009-12-23, 42–6.

111 Consolidated Version of the Treaty on the Functioning of the European Union (TFEU), 2008 OJ C 115/47, Article 215.

112 Article 275 TFEU: this is one of the exceptions under which the court has jurisdiction with respect to the provisions relating to the common foreign and security policy.

113 The importance of due process and legal control were also recognised in a declaration attached to the treaty: Declaration 25 on Article 75 and 275 on the TFEU.

114 UN Security Council, Security Council Resolution 1370 (2001) on the Situation in Sierra Leone, 18 September 2001, S/RES/1370 (2001).

115 Clemens A. Feinäugle, ‘The UN Security Council Al-Qaida and Taliban Sanctions Committee: Emerging Principles of International Institutional Law for the Protection of Individuals?’, German Law Journal 11, no. 9 (2008): 1530.

116 See the website of the Focal Point at http://www.un.org/sc/committees/dfp.shtml (accessed January 2015).

117 UN Security Council, Security Council Resolution 1904 (2009) [on Continuation of Measures Imposed against the Taliban and Al-Qaida], 17 December 2009, S/RES/1904 (2009), Preamble.

118 UN SC Resolution 1904 (2009), §20. It must be noted that the Ombudsperson only has a mandate for sanctions under the 1267 Committee, but not for sanctions under Resolution 1373, which are still examined through the Focal Point procedure.

119 UN Security Council 6247th Meeting, 17 December 2009, S/PV.6247.

120 Ibid.

121 HM Treasury v. Mohammed Jabar Ahmed and ors (FC); HM Treasury v. Mohammed al-Ghabra (FC); R (on the application of Hani El Sayed Sabaei Youssef) v. HM Treasury [2010] UKSC 2.

122 Antonios Tzanakopoulos, ‘The UK Supreme Court Quashed Domestic Measures Implementing UN Sanctions', EJIL Talk, 23 February 2010, http://www.ejiltalk.org/the-uk-supreme-court-quashes-domestic-measures-implementing-un-sanctions/ (accessed January 2015).

123 HM Treasury v. Mohamed Jabar Ahmed (2010), §78.

124 Ibid., § 78, 80, 239.

125 Yasin Abdullah Kadi v. European Commission, 2010, §128.

126 European Commission & the Council of the European Union v. Yassin Abdullah Kadi, 2013, §96.

127 See note 2 above.

128 For instance, Handyside v. The United Kingdom, ECHR, 07.12.1976, Klass and others v. Germany, ECHR 06.09.1978, Mccann and Others v. The United Kingdom (21 ECHR 97 GC), Osman v. United Kingdom [1998] EHRR 101, and Finogenov and Others v. Russia, Judgment 20.12.2011.

129 R.A. Lawson and H.G. Schermers, eds, Leading Cases of the European Court of Human Rights (Nijmegen: Ars Aequi Libri, 1997), 28–42.

130 See for instance Tsakyrakis, ‘Proportionality'; and Verdirame, ‘Rescuing Human Rights from Proportionality'.

131 Richard Benwell and Oonagh Gay, ‘The Separation of Powers' (Parliament and Constitution Centre, House of Commons Library, 15 August 2011), http://www.parliament.uk/briefing-papers/sn06053.pdf (accessed January 2015).

132 de Wet, ‘From Kadi to Nada', 16.

133 Bennoune, ‘All Necessary Measures?’, 668.

134 UN Security Council, Resolution 2178 (2014) [On Foreign Terrorist Fighters], 24 September 2014, S/RES/2178 (2014), §5.

135 Marko Milanovic, ‘EJIL: Talk! – UN Security Council Adopts Resolution 2178 on Foreign Terrorist Fighters', 24 September 2014, http://www.ejiltalk.org/un-security-council-adopts-resolution-2178-on-foreign-terrorist-fighters/ (accessed January 2015).

136 Al-Dulimi and Montana Management Inc. v. Switzerland (No. 5809/08), Grand Chamber Hearing – 10 December 2014 Hearing.

137 ‘Attorney General Appears before European Court of Human Rights', 10 December 2014, https://www.gov.uk/government/news/attorney-general-appears-before-european-court-of-human-rights (accessed January 2015).

138 Case T-306/10 Yusef v. Commission (21 March 2014).