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Abstract
This article analyses one specific instance of the use of targeted sanctions to combat the financing of terrorism by the European Union on behalf of the United Nations Security Council. The case raised a number of issues involving the use of sanctions against non-state actors and provoked a legal challenge at the European Court of Justice. These European court cases have been portrayed as a challenge to the use of targeted sanctions by the Security Council to maintain international peace and security. The fundamental critique here is that targeted sanctions must adhere to due process and the rule of law in order to protect individual human rights.
Acknowledgements
This paper was presented at the biennial European Union Studies Association Conference, Montreal, Quebec, 17–19 May 2007 and the GARNET Conference, ‘The European Union in International Affairs’, Egmont Palace, Brussels, 24–26 April 2008. I appreciate the feedback received from discussants, fellow panel members, and conference attendees. It has benefited greatly from the close reading and accompanying comments provided by the journal's anonymous referees. This article builds on work completed for the European Commission-funded project, CHALLENGE (The Changing Landscape of European Liberty and Security), and I remain grateful for the financial support received during that time. For more information on the scope and dimensions of the project, see <www.libertysecurity.org. The standard academic disclaimer applies.
Notes
1. The legal construct, ‘persons (natural or legal)’, specifies the nature of the person before the law, which either is the natural person or a corporation. The corporation is treated as a legal person for purposes of entering into contracts and owning property, and with respect to economic sanctions, may be prohibited from operating and have its assets frozen.
2. As stated by Lavranos, ‘Since national courts cannot invalidate Community law measures by their own motion, they are obligated to request a preliminary ruling from the ECJ… . In that regard, a preliminary ruling is of little help for private parties that have been affected by UN sanctions’ (2006, p. 486).
3. At the time of writing, the full implementation of the procedures present in the Resolution was incomplete. See (United Nations Security Council Citation2008, pp. 8–9). A summary of the evolution of the sanctions regime at the UN and in the EU is provided by (Heupel Citation2009).
4. I have been reminded that sanctions are not one-dimensional and serve two further purposes. Sanctions may be imposed in response to domestic pressure (US sanctions against Cuba, for example) and they may be used as ‘signalling’ in order to demonstrate leadership or to support international standards (Drezner Citation1999, pp. 10–18). In the context of the sanctions against the financing of terrorism, it must be agreed that US initiatives were just as much about signalling action to its domestic audience as it was a method for taking action against terrorism. See, for example, Warde Citation2007, pp. vii–xi, Taylor Citation2007, pp. 6–12.
5. See variously <www.smartsanctions.ch>, <http://www.smartsanctions.de> and <http://www.smartsanctions.se>.
6. As demonstrated, for example, by the avoidance activities undertaken by Iranian businesses in response to financial sanctions imposed on Iranian banks (Fassihi and Cummins Citation2008).
7. See their webpage for further information, <http://www.un.org/sc/committees/1267/index.shtml>.
8. The latter change resolves one past criticism about the inability of the person to speak unmediated by a state representative directly to the Security Council. See Vlcek Citation2006, pp. 503–504.
9. The Counter Terrorism Committee has established a directory of relevant international standards and best practices. See <http://www.un.org/sc/ctc/bestpractices.shtml>.
10. For a useful reference list of these cases, see the summary of EU case-law at the Statewatch webpage ‘“Terrorist” lists: monitoring proscription, designation and asset-freezing’, <http://www.statewatch.org/terrorlists/terrorlists.html>.
11. There is not sufficient space in a journal article to address all of these dimensions. Some of these other aspects were addressed in Vlcek Citation2008a, Citation2008b, Citation2007, 2006.
12. Similarly, al Taqwa was accused of providing investment services to Osama bin Laden and al Qaeda. In actuality, the firm consisted of a structure of offshore business companies registered in the Bahamas, Liechtenstein, and Switzerland providing Sharia-compliant investment services (Milbank and Day Citation2001, p. 1).
13. Andersson et al. (Citation2003) point out that when the Court of First Instance accepted Swedish government assurances that these payments were sufficient to cover the basic needs of the plaintiffs while the legal process was underway, the Court essentially was accepting as well the fact that these payments violated the EC law that was under challenge in this court case (Andersson et al. 2003, p. 137).
14. Furthermore, it was reported that Ahmed Ali Yusuf continued to travel internationally while on the sanctions list with the financial support of the ‘Solidarity Committee’ and the violation of his travel ban only became widely known after his delisting in August Citation2006 (Analytical Support and Sanctions Monitoring Team Citation2007, pp. 25–26).
15. The official US government position is very similar—‘It is important to recognise that these delisting actions not only demonstrated an appropriate consideration of the rights of designated parties, but they also validated the effectiveness of designations as a tool in our overall efforts to combat terrorist financing’ (United States Mission to the United Nations Citation2005).
16. But see (Flynn Citation2007) for the opposing argument.
17. Hans Dahlgren, Sweden's State Secretary of Foreign Affairs described sanctions with this phrase when presenting the results of the Stockholm Process to the Security Council on 25 February 2003 (United Nations Security Council Citation2003).
18. The initial directions provided by Resolution 1267 concerning exceptions simply stated ‘except as may be authorized by the Committee on a case-by-case basis on the grounds of humanitarian need’ (Article 4(b)). Resolution 1452 provided a more detailed and structured approach to exceptions as encouraged by the increased concern for human rights observance in the financial sanctions process.
19. See, for example, the press release relating the meeting of the Security Council on 25 May 2004, in which the Irish representative made a statement on behalf of the European Union (United Nations Security Council Citation2004).