Thesis Terrorist Sanctions

Transcription

1 Thesis Terrorist Sanctions Do European Union terrorist measures, which were adopted to implement UN terrorist sanctions, follow directly from the UN resolutions or are these based on autonomous powers? Tilburg University Master International and European Public Law Name: Marisa Goracci ANR: Adres: Otterstraat 18, 5622 AL Eindhoven Tel Thesis supervisor: mr. Drs. A.A.H. van Hoek Date: 8 July 2008 Word count:

2 Table of Contents Introduction Which are the current operating UN and EU terrorist lists? How do these operating lists function, how did the European Union implement the UN resolutions and why is it important to now if the Union used autonomous powers to implement the resolution? Introduction How are persons and entities listed according to resolution 1267 and how is that organised by the implementation of this resolution by the European Union? The list of resolution Sanctions Committee; listing procedure Sanctions Committee; de-listing procedure The EU implemented list of resolution How does the listing/de-listing procedure of resolution 1373 and the autonomous European List work? Resolution The Autonomous European Terrorist List How did the European Union implement the UN resolutions and the resolutions and European Union measures binding for member states? Does the EU make use of its autonomous powers by implementing the UN sanctions and why is this an important question? Which sanctions are prescribed in the Terrorist resolutions and are these sanctions prescribed differently by the European Union? Introduction Comparison between the Freezing sanction prescribed in the Taliban...18 resolutions and the Freezing sanction, implementing the freezing sanction of resolution 1267, as prescribed by the Union: 2.3 Comparison between the arms embargo and travel ban sanction prescribed by the United Nations and the arms embargo and travel ban sanction prescribed by the Union The arms embargo sanction

3 2.3.2 Travel bans The travel ban and arms embargo sanction in the European Union Comparison between the freezing sanction of resolution 1373 and the implemented freezing sanction of 1373 as prescribed by the Union Freezing sanctions of the autonomous list and resolution Internal terrorist no freezing! Which persons and entities are sanctioned by the UN resolutions and the European measures? Are the same persons and entities sanctioned by resolution 1267 and the implemented EU list? Are the same persons and entities sanctioned by resolution 1373 and the autonomous list? Conclusion...43 Literature list.45

4 Introduction Terrorism is not a new thing, in fact the violence used in the French revolution in 1790 was referred to as terrorism. 1 For quite some time, even after the rise of international organisations, the fight against terrorism was not discussed on an international level and was more seen as a policy for countries. This gradually changed when terrorism became a larger problem. Terrorists were able to find new ways to create fear in societies and the rising of new technologies meant that also terrorist had access to these technologies. 2 Because of new technologies terrorists were able to attack larger groups with more severe injuries by using chemical weapons, automatic weapons and explosives. 3 This made terrorists more dangerous than ever before. The United Nations was able to create international standards for the fight against terrorism. The United Nations was founded in 1945, just after the Second World War. 4 The United Nations has as one of it main objectives to maintain international peace and security. The United Nations has several organs. One of these organs is the Security Council and the Council has the obligation to maintain international peace and security. For several decades the Security Council adopted resolutions to maintain international peace and security. These resolutions were addressed to governments. The period of the Cold War ended with the breakdown of the Soviet Union, it became apparent that a new era had begun: the War on Terror. 5 In the 1990 s the Security Council adopted resolutions containing targeted sanctions. 6 These sanctions were aimed at leaders of terrorist organisations and members of 1 %2Fbps%2Ftopic%2F588371%2Fterrorism&title=terrorism%20%20Britannica%20Online%20Encycl opedia. (Online encyclopaedia Consulted 19 January 2008). 2 Online terrorism research International Terrorism and Security Research (Go to and click on History )(Consulted 21 February 2008). 3 (Home page of the UN, click on about the UN and click on basic facts ) (Consulted on 18 January 2008). 4 (Consulted 2 march 2008). 5 Paper by Gary Clyde Hufbauer, and Barbara Oegg, Peterson Institute, Targeted Sanctions: a policy alternative? Available at Consulted 27 April The Watson Institute for International Studies: Information Sheet about research project concerning targeted sanctions. (Consulted 27 April 2008). 1

5 terrorist organisations. 7 This meant that no longer innocent civilians were affected by the sanctions since the targeted sanctions were not directed at countries. At the end of the 20th century the Taliban was in control of the Afghan government and supported the terrorist organisation Al-Qaeda. The government of Afghanistan was, at the time the resolution was adopted, in the hands of the Taliban. Resolution 1267 was intentioned to pressure the terrorist regime in Afghanistan. The Taliban had been creating a shelter for terrorists in the Afghanistan territory, allowing them to prepare terrorist attacks in other countries. 8 Therefore resolution 1267 was directed against the government of Afghanistan to stop the harbouring and training of terrorist in Afghanistan. As a reaction to this situation the Security Council adopted several targeted sanctions to sanction terrorism in Afghanistan. In resolution 1267 sanctions were prescribed for the Taliban, Al-Qaeda, Usama Bin Laden and their associates. Resolution 1267 sanctions persons, groups and entities that are designated on the 1267 international terrorist list. The list is included in resolution Through the use of this list the sanctions are directly aimed at the persons and entities that form a threat to international peace and security. 9 The names on the list have to be subjected to the sanctions mentioned in the resolutions. Several resolutions amended resolution For instance the second resolution the UN adopted was resolution 1333 and following resolution 1390 was adopted. In this thesis I will usually explicitly refer to resolution 1267 when discussing the lists and sanctions directed to the Taliban, Al-Qaeda, Bin Laden and associates. Yet I will discuss the sanction system of 1267 as it stands today, thus including all amendments. The European Union implemented resolution 1267 into the Aquis of the European Union. When terrorist attacks on the 11th of September 2001 occurred, it was clear that more measures had to be taken in order to maintain international peace and security. On the 28th of September 2001 the Security Council adopted resolution This resolution includes sanctions for all terrorist activities. Resolution 1373 does not include a list with names neither does it contain the obligation for states to list persons, groups or entities that should be sanctioned. The European Union also 7 Dewulf & Pacquee 2006, Netherlands Quarterly for Human Rights (4) (2006), p Ooik and Wessel 2006, SEW- Tijdschrift voor Europees en Economisch Recht (2006) vol. 6 p H. Philipp Aust 2008, Anuario Mexicano Derecho Internacional vol. VIII (2008) pp Available at (Consulted 24 April 2008). 2

6 implemented resolution Besides the implementation of resolution 1373, the European Union adopted on the basis of this resolution an autonomous terrorist list. In this thesis I would like to give an account about what is actually being sanctioned in the terrorist resolutions of the United Nations and the European measures, who exactly can face the sanctions and what is the content of the sanctions. In this thesis I want to find answer to the question whether the sanctions executed by the European Union are solely an execution of the UN resolutions or is the European Union going further that what is prescribed by the United Nations resolutions? To answer this question I will first give a description about the functioning of the terrorists lists and the implementation of the resolutions by the European Union. Then I will explain why it is important to know whether the European Union is acting on autonomous powers. To find out whether the Union is prescribing more in its own measures, I will have to compare the sanctions and the list of the UN to the sanctions and the lists of the European Union. In the second chapter I will first compare the execution of the sanctions of resolution 1267 to the sanctions prescribed by the European Union. Then I will compare the sanctions of resolution 1373 to the implemented European Union sanctions. Following I want to find out whether the European Union designates different persons, entities and groups. To do this, I will compare the scope of the list of resolution 1267 to the European implemented 1267 list. Next to this I will describe who has to be sanctioned according to resolution 1373 and compare this to persons, groups and entities that are designated on the European autonomous list. Last, the findings will be summed up in a conclusion. 3

7 1. Which are the current operating UN and EU terrorist lists? How do these operating lists function, how did the European Union implement the UN resolutions and why is it important to now if the Union used autonomous powers to implement the resolution? 1.1 Introduction UN resolutions are interpreted as binding upon all UN member states, to an extent that necessary measures have to be taken by the members to effectively implement resolutions into their own national system. 10 In the past there have been discussions about the obligations in the resolution, however in general it is accepted that the sanctions in the resolution are binding. 11 Members of the UN implemented the resolutions into their national systems and adopted own terrorist list. Accordingly, national terrorist lists arose. Nowadays several terrorist lists exist on different levels; internationally and regionally. The European Union is not a member of the United Nations, since it is an organisation and not a state. Notwithstanding, the European Union implemented the international resolutions into European Union law. In Ayadi it was acknowledged once again that Resolutions of the Security Council are binding for the Community and the European Union. 12 Next to this, it was also confirmed that the UN resolutions stand above European Union and Community law and thus in case of conflict the conflicting European law has to be set aside. 13 Since the member states of the European Union are bound to UN law acts and these take precedence over European Union acts, the CFI in Yusuf case decided that Community obligations for member states had to be in accordance with the UN resolutions. 14 This prevents member states from infringing European Union obligations, which are in violation of United Nations 10 Note verbal dated 15 March 2001 from the Permanent Mission of Bahrain to the United Nations addressed to the Committee (1267) 20 march 2001 (Consulted on 5 November 2007). 11 National Implementation of United Nations Sanctions (a comparative study of The Graduate Institute of International Studies Geneva) 2004, p CFI 12 July 2006, T-253/02, Ayadi v. Council, [2006] ECR II-2139, paragraph T-235/02 Ayadi see supra note 12, paragraph

8 obligations. 15 Therefore the European Union had to, according to the CFI, make the resolutions part of its Aquis. In the next paragraphs I will give a description concerning the functioning of the currently operational United Nations and European Union terrorist lists. Next to this I will explain how the European Union has implemented the UN measures. Last, I will explain why it is important to know whether the European Union acts upon autonomous powers. 1.2 How are persons and entities listed according to resolution 1267 and does the implemented EU list differ from the international list? The list of resolution 1267 The Taliban, Al-Qaeda, Usama Bin Laden and groups and entities connected to these terrorists and terrorist organisations have to be designated on the 1267 list. Paragraph 2 of resolution 1267 the Security Council demands the extradition of Usama bin Laden. The resolution is aimed to disrupt financial and material support of Al-Qaeda and the Taliban. 16 Next to this, the resolution hampers the ability of associates of the Taliban or Al-Qaeda to travel Sanctions Committee; listing procedure When adopted, the listing mechanism of resolution 1267 was difficult to comprehend. The listing mechanism of resolution 1267 did not include procedures for designated persons or entities to question their listing. 18 The Security Council adopted several other resolutions and guidelines were developed by the Sanctions Committee to create a more delineated process of listing and de-listing. 19 To place a name on the list, a member state or several member states have to submit names and information to the 14 CFI 21 September 2005, case T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation [2005] ECR, II-3533, paragraph 231, 234, 242 and Rede door A. Wessel, The Invasion by International Organizations De toenemende samenhang tussen de mondiale, Europese en nationale rechtsorde, 12 januari (Consulted 26 October 2007). See also Yusuf supra note 14 paragraphs UN Security Council Resolution 1267, 15 October 1999, S/RES/1267 (1999). 17 UN Security Council Resolution 1267, 15 October 1999, S/RES/1267 (1999), paragraph 4 (a). 18 Jochen Frowein 2006, The UN Anti-Terrorism Administration and the Rule of Law, Common Values in International Law 2006 available at (Consulted on 31 October 2007). 19 United Nations Security Council Resolution 1730, 19 December 2006, S/RES/1730 (2006). 5

9 Sanctions Committee. 20 The resolution at present prescribes that member states, when proposing names for listing, have to provide statements that give more information on the basis of justification of a particular proposal and this statement has to be as detailed as possible. 21 Statements should include detailed information on a person or entity that shows the association or activities alleged, supporting evidence such as documents, the nature of supporting evidence and information concerning possible connections with already listed individuals or entities. 22 States also have to provide identifying information, as detailed as possible, about the person or entity they propose for a listing. 23 The information from member states has to contain sufficient evidence/arguments for a listing since it would be inaccurate to execute a listing on the base of vague allegations. The decision to place a name on the terrorist list is taken by the Sanctions Committee, with the approval of the members of the Committee, on the basis of the information available. 24 Several factors that settle the matter for a listing decision are kept secret. 25 When a name is placed on the list, member states are informed immediately and the Member State of residence or citizenship of the listed person or entity has the task to inform this person or entity about the imposed measures, of the guidelines of the Committee that contains the listing and de-listing procedure and of the provisions of resolution The list is updated regularly and to keep the list accurate members of the Sanctions Committee can ask for a review of a listing if there is a justification for this review Sanctions Committee; de-listing procedure When Resolution 1267 was adopted, it did not contain a de-listing procedure. Before this de-listing procedure was adopted, a listing decision taken by the Sanctions Committee was presumed to be accurate. 27 It took until 7 November 2002 until a de eted_sanctions_listingdelisting_and_due_process.htm. (Consulted on 31 October 2007). 21 Guidelines of the Committee for the Conduct of its Work, adopted on 7 November 2002 and last amended on 12 February 2007, paragraph 6 (a) (d). (The Guidelines can be found on and click on Security Council, then click on 1267 Committee and click on guidelines Committee. (Consulted 1 November 2007). United Nations Security Council Resolution 1617, 29 July 2005, S/RES/1617 (2005), paragraph See Guidelines of the Committee, supra note 21, paragraph 6 (d). 23 See Guidelines of the Committee, supra note 21, paragraph 6 (e) eted_sanctions_listingdelisting_and_due_process.htm. (Consulted on 31 October 2007). 25 Dewulf & Pacquee 2006, Netherlands Quarterly for Human Rights (4) (2006), p See Guidelines of the Committee, supra note 21, paragraph Dewulf & Pacquee 2006, Netherlands Quarterly for Human Rights (4) (2006), p

10 listing procedure was adopted by the Sanctions Committee. 28 Since 2002, persons and entities on the list of 1267 have the opportunity to submit a request to review the decision of placing his name on the list. The individual or entity can submit this delisting request to the government of the state where the person or entity resides or has citizenship. As of 2006, the listed individual or entity can also choose to submit a request for a de-listing without the interference of the member state. The person or entity itself can ask for a de-listing by submitting the request to a focal point. 29 In all situations the entity or person (petitioner) has to provide a justification for the delisting request and information which supports the de-listing. This is a difficult requirement since the petitioner, in most circumstances, does not have access to all the accusatory information. When the petitioner request the de-listing through the Member State of residence or citizenship, the member state in question has to review the submitted information. If a certain request is founded, the government in question can decide to go into a in-depth study of the requested case, gather additional information and eventually has to contact the state which originally proposed the listing to the Sanctions Committee of this person or entity. 30 When a member state makes use of this possibility, it executes diplomatic protection for its nationals or residents. This diplomatic protection is seen as a right belonging to states, to stand up for their nationals, and it is thus not a right that the petitioner can enforce in the state of his residence or citizenship. 31 Thus states do not have an obligation to use the right to diplomatic protection. However the Court of First Instance (CFI) stated in Ayadi 32 that Europeans or listed persons residing in EU member states have the right to claim diplomatic protection of a competent member state. The Court came to this conclusion because of the fact that listed individuals and entities had complained in earlier cases that their right to effective legal protection was violated if they did not have access to the judicial procedures of the Union and if their state refused to execute diplomatic protection. 33 The Court also mentioned that a request for a de-listing is granted through the guidelines of the Sanctions Committee and that this leads to an obligation 28 (Consulted on 31 October 2007). See supra note United Nations Security Council Resolution 1730, 19 December 2006, S/RES/1730 (2006) (Consulted on 31 October 2007). See supra note Site of the International Law Commission Information sheet about diplomatic protection 30 November 2005 (extracts form, The International Law Commission, 6th edition volume 1. (Consulted 7 March 2008). 32 T-235/02 Ayadi see supra note 12, paragraphs

11 for the European Union member states to grant their nationals and residents this right as mentioned in the guidelines. 34 This means that the diplomatic protection, executed by member states, to file a request for a de-listing is seen as way to grant effective legal protection on Union level when listed persons or entities are not able to gain this effective legal protection through the legal system of the Union. 35 If a request for delisting is filed through a state, which is not a member state of the European Union, it is up to the government of the state where the request for de-listing was filed to make the decision to go the Sanctions Committee with a recommendation for a de-listing. If the state does execute diplomatic protection for their nationals or residents the government can try to persuade the government of the state that initially placed the request for listing to go to the Sanctions Committee or it can decide that more time is necessary and more information has to be gathered before going to the Sanctions Committee. However, nowadays every individual has the opportunity to go to the focal point if their nation state or state of residence does not execute diplomatic protection. Still, diplomatic protection is important. The focal point cannot represent the petitioner the same way as states do. The de-listing procedure of the Committee is a political procedure so without the diplomatic protection the de-listing request made through the focal point is usually not as successful as a de-listing request from states. 36 For instance governments executing diplomatic protection for nationals and residents have the political power to put requests for de-listings on the agenda of the Sanctions Committee sooner than the focal point. When the petitioner files a request through a focal point, the focal point has to examine whether the request contains additional and new information, if this is not the case then the request will be returned to the petitioner. 37 If the request is admissible consultations are started between involved member states. 38 After these consultations several things can happen. When one of the member states requests a de-listing, the matter will be forwarded to the Sanctions Committee. 39 The Sanctions Committee 33 Nettesheim 2007, WHI paper, p Dewulf & Pacquee 2006, Netherlands Quarterly for Human Rights (4) (2006), p Nettesheim 2007, WHI paper, p Herik 2007, Leiden Journal of International Law, Vol. 20 nr. 4 (2007), p Available at: df&code=31cae2e0f32bb76d6798fcc5c0bfb3b2. 37 UN Security Council Resolution 1730, 19 December 2006, S/RES/1730 (2006), paragraphs UN Security Council Resolution 1730, 19 December 2006, S/RES/1730 (2006), paragraph UN Security Council Resolution 1730, 19 December 2006, S/RES/1730 (2006), paragraph 6 a. 8

12 decides upon a decision for de-listing. The decision has to be taken by consensus and if no consensus can be reached the matter can be submitted to the Security Council which has the ultimate say in the matter. 40 However, the Sanctions Committee consists of 15 members that also have a seat in the Security Council. 41 Notwithstanding, there are differences between the Sanctions Committee and the Security Council. In the Sanctions Committee the permanent members are more dominant. To reach a decision in the Sanctions Committee there has to be consensus but in the Security Council there only have to be nine affirmative votes. 42 The Council is more likely to come to a decision. In the Council the 10 non-permanent members do not have a veto. In the Sanctions Committee all 15 members have a right to veto. 43 Another solution is the no objection voting in the Committee. The no objection voting has to be requested by the Member State that represents the individual or entity. 44 When non of the other member states in the Committee objects the de-listing request, the individual or entity is de-listed. 45 However, before a request for the no objection voting can be placed the government that initially requested the listing of the person or entity has to agree with a de-listing. In practise the no objection voting means that the Chairman will circulate the proposed decision and if none of the member states of the Sanctions Committee objects this proposed decision within 5 working days it is adopted The EU implemented list of resolution 1267 The European Union implemented list is identical to the UN terrorist list, since it is an implementation of the UN list into European Law, there are no big differences. The scope of the list is confined to Bin Laden, persons and entities associated with Bin 40 Dewulf & Pacquee 2006, Netherlands Quarterly for Human Rights (4) (2006) p. 624 and see See Guidelines of the Committee, supra note 21, paragraph 4 (a) Site of the Security Council Committee about general info on the work of the Committee. (go to and click on general information in the site map) (Consulted 6 march 2008). 42 Project of the International Peace Community, the UN Security Council, Lynne Rienner Publishers, 2004, p Project of the International Peace Community, the UN Security Council, Lynne Rienner Publishers, 2004, p (Consulted on 31 October 2007). P. 5 see supra note (Consulted on 31 October 2007). P. 5 see supra note See Guidelines of the Committee, supra note 21, paragraph 4 (b). 9

13 laden, the Taliban and Al-Qaeda. 47 The implemented European list also states that the Sanctions Committee has the competence to decide upon a listing or a de-listing. 48 The European Commission has the task to keep the list in accordance with the list of resolution 1267 and the Commission has the task to review the list regularly. 49 The criteria to be listed or to be de-listed are the same as for the UN list. The listing and de-listing has to be in accordance with the list of resolution How does the listing/de-listing procedure of resolution 1373 and the autonomous European List work? Resolution 1373 Resolution 1373 is seen separate from previous resolutions, which were adopted to sanction the Taliban, Al-Qaeda, Bin Laden and their associates. Resolution 1373 sanctions all terrorist activities. The resolution obligates member states to prevent the financing of terrorist acts, criminalise wilful provision and collection funds, freeze financial or economical assets and prohibit that nationals make funds, financial assists or economical resources available for terrorist acts. 50 The resolution is aimed to prevent, prosecute and punish all acts of terrorism including attempting and helping to commit terrorist acts. 51 Resolution 1373 does not include a list and it does not obligate member states to compile a list The Autonomous European Terrorist List The European Union, independently, has the power to decide upon a listing or delisting. 52 The list concerns persons and entities involved in terrorist activities. 53 The list consists of names of people that are also listed in the UN list and of other, new, 47 (Consulted 4 November 2007) 48 (Consulted 4 November 2007) 49 (Consulted 4 November 2007) 50 UN Security Council Resolution 1373, 28 September 2001, S/RES/1373 (2001) article Site of International Monetary Fund Click on free full text, chapter 2. Suppressing the Financing of Terrorism a handbook for legislative drafting, legal department: International Monetary Fund 2003, p. 16 (Consulted on 24 November 2007). 52 Site of International Monetary Fund Click on free full text, chapter 2. Suppressing the Financing of Terrorism a handbook for legislative drafting, legal department: International Monetary Fund 2003, p. 4 (Consulted on 24 November 2007). 10

14 names. These new names are listed on the basis of information from the European Union Member States and/or from third countries. The listing and de-listing procedures of the European autonomous list have been adjusted due to decisions of the European Court of Justice and the adoption of a council decision containing procedures for listing and de-listing. 54 In the Organisation des Modjahedines du Peuple de l'iran (OMPI) case the Court of First Instance decided that when assets have been froze affected persons or entities have to receive a statement with reasons. The CFI in OMPI clarified and explained that the Council has a large discretion, on the base of articles 60, 301 and 308 TEC, to execute financial and economical sanctions. The statement of reasons prevents misuse of this large discretion and contributes to transparency of the freezing decision since judging errors of the Council are to be found more easily. 55 The statement of reasons has to entail arguments that explicate the assets freeze. Besides this the person or entity also has to receive information about the option to ask the Council of the European Union for a reconsidering of the listing decision and what the requirements are for such a request; namely the person or entity has to include documentation with his request that supports a reconsidering. 56 The Court also decided that more information has to be given to designated persons or entities to inform them about their inclusion on the list. 57 The Council has the power to decide upon a listing and does this on the basis of received information. 58 First of all there has to be an initiative of a state or several states together to come forward with a name that could be listed. Such initiative may even come from a third state. 59 Proposals for listings are submitted to the Common Position 931 Working Party. When a person, entity or group is listed they will receive 53 (To access go to and click on CFSP and click on Fight against terrorism and click on Freezing funds: list of terrorist and terrorist groups ). (Consulted 4 November 2007). 54 CFI 12 December 2006, case T-228/02, Organisation des Modjahedines du Peuple de l'iran (OMPI) v. Council of the European Union, [2006]ECR II-0000 and Council of the European Union, 28 June /1/07 REV 1 available at re01en07.pdf. 55 T-228/02 OMPI see supra note 54, paragraph (Consulted 5 November 2007). Council of the European Union, 29 June 2007, EU terrorist list adoption of new consolidated list (Consulted 5 November 2007). Council of the European Union, 29 June 2007, EU terrorist list adoption of new consolidated list. 58 Council Common Position 2001/930/CFSP, 27 December 2001 OJ L 344/90, article 1 paragraph Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph 2. 11

15 a statement of reasons for the inclusion on the list. 60 The statement of reasons is drafted by the Council Secretariat together with the state that initially proposed the request for listing. 61 The statement has to be approved by the Working Party on a case-by-case basis. 62 The discussions about the statement by the Working Party are confidential. 63 The statement of reasons explains in what way the person, entity or group meets the requirements set out in article 1 (2) and (3) of the Common Position (involvement in terrorist activities). 64 The designated person or entity is also notified about their inclusion on the list. In most cases the state that already has investigated a certain terrorist or a terrorist organisation will take the initiative to bring forward a name for inclusion on the list. 65 A request for de-listing can be made by listed persons or entities, a member state or the state that initially requested the listing of the person or entity. 66 Statements entailing information supporting the de-listing have to be included with a request for a de-listing. 67 Request for de-listings are solely an option when the requirements for listing are no longer being fulfilled by the person or entity in question. 68 Requests for de-listings are forwarded to delegations for discussion in the Working Party of Common Position 931. Then the delegations have fifteen days to examine the re-quest for a de-listing including the information on which request is based. 69 The Working Party, after it has examined requests, will give recommendations about a listing or a de-listing to the Council. The Council will normally adopt these recommendations. 70 The autonomous European list has an automatic review mechanism and is reviewed every six months to ensure there are grounds for keeping the listed names on the list Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph 17. (the persons or entity has to be listed under council resolution 2580/2001). 61 Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph Cameron 2003 Human Rights Law Review Vol. 3 No. 2 (2003), p Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph Council of the European Union, 28 June 2007, 10826/1/07 rev 1, Annex II paragraph

16 1.4 Which legal instruments and what legal basis did the European Union use to implement the UN resolutions? Common Positions Common Position 2002/402 implements resolution 1267 Common Position 2001/930/CFSP and 2001/931/CFSP implement resolution 1373 Common Positions are not directly applicable in the member states. The Common Positions that were adopted in order to implement UN resolution were taken on the basis of the common foreign and security policy, the second pillar, article 15 TEU. 72 Common Positions are adopted by the Council under articles 15 TEU because they address matters that fall within the scope of the Common Foreign and Security Policy and obligate member states to bring their national policies in accordance with the Common Positions. 73 Common Positions are binding in the sense that member states are, when executing their national policy, bound to act according to the Common Position. Common Positions do not have direct effect and member states are free on how to attain the result of Common Positions. 74 Common Positions in the second pillar are not subjected to a judicial review by the ECJ, since article 46 TEU states that the ECJ does not have competence to question decisions taken in the area of Common Foreign and Security Policy. 75 The applicants in the Segi case wanted to claim damages and therefore they questioned the legality of Common Position 2001/931/ The CFI stated that that it did not have the power to judicially review acts which are based on the second and third pillar. 77 In 2007 the ECJ in the Gestoras Pro Amnistia case decided that articles of Common Positions are subjected to judicial review according to article 35 (1) EU. The ECJ decided that national courts have the possibility to refer questions for a preliminary ruling. This is only possible 71 Council Common Position, 27 December 2001, 2001/930/CFSP OJ L 344/90, article 1 paragraph (Go to click on observatories and click on Terrorist lists/proscription and go to January 2002 and click on EU agrees on first list of terrorists (Consulted 4 November 2007). 73 Council Common Position 2002/402/CFSP, (2002) Official Journal L 139/4, article Craig & de Burca 2003, p Segi/ Gestoras, admissability decision 23 May 2002, appl. No 6422/02, Reports of judgements and decisions 2002-V p Nettesheim 2007, WHI paper, p Nettesheim 2007, WHI paper, p ECJ 27 February 2007, case C-354/04, Gestoras Pro Amnistía and others v. the Council, [2007] ECR I-0000, paragraphs 53 and

17 when an article of the Common Positions has legal effect, which means that the applicants are affected. 78 In those situations, the Common Position is treated as a Framework Decision. 79 Regulations Regulation 881/2002 implements the sanctions of resolution 1267 Regulation 2580/2001 implements the freezing sanction of resolution 1373 Regulations are adopted under the Treaty on the European Union in line of the Common Foreign and Safety Policy. Regulations are legally binding upon European Union member states. As mentioned in article 249 TEC, regulations are binding and directly applicable in every member state thus no is needed, they are already a part of the International law system of the member states. 80 Regulations have direct effect. Direct effect means that persons or entities affected can enforce the regulation directly before a judicial authority. 81 The Community has the task to under take action to disrupt or limit economic relations with one or more third countries. 82 The regulations that implement the freezing sanctions are based on articles 60, 301 and 308 TEC. In Kadi 83 and Yusuf 84 the Court of First Instance stated that the European Union has the competence to freeze funds and assets of listed persons and entities since this was necessary to fight international terrorism. However, these rulings were grounded on articles 60, 301 TEC, which deal with disrupting financial relations with third countries and it was argued that these articles do not provide competence to freeze funds or assets within the European Union. Article 308 was added because the sanctions were no longer solely connected with Afghanistan. 85 However, this has been denied by the Advocate General in the Al Barakaat case. 86 The Advocate General argues that articles 60 and 301 TEC form a legitimate basis for the regulation because 79 CFI 7 June 2004, case T-338/02, SEGI association, Araitz Zubimendi Izaga and Aritza Galarraga [2007] ECR I-0000, paragraph Eijsbouts, Jans & Vogelaar 2004, p Craig and de Burca 2003, p The Treaty establishing the European Community (1957) article CFI 21 December 2005, case T-315/01, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities [2005] ECR II T-306/01 Yusuf see supra note T-306/01 Yusuf see supra note 14, paragraph Conclusion AG Maduro in case T-415/05, 23 January 2008, Al Barakaat International Foundation against the Council of the European Union and the Commission of the European Community. 14

18 disrupting economical relations concerning persons and entities of third countries contributes to negative economical relations with those third countries. 87 According to the CFI the regulations were valid since they intended to disrupt economic relations with third countries and this fulfils the objective of the Union. 88 The CFI supported this statement by reasoning that the regulations contribute to the Area of Freedom Security and Justice just like the United Nations adopted the sanctions to maintain international peace and security. 89 However, this argument from the CFI is in my opinion not very strong and there exists room for discussion. Member states are prescribed to freeze the assets of terrorists residing in the Union and outside the Union associated with Al-Qaeda, the Taliban or Usama bin Laden. Other terrorists, not associated with Al-Qaeda, Taliban or bin Laden, fall under resolution When these terrorists reside within the Union they are only subjected to article 4 of Common Position 2001/931/2001. This means that these terrorists do not fall under the freezing sanction of Common Position 2001/931/CFSP. Still, these terrorists within the Union also form a threat to International peace and Security and the European Union does not prescribe the freezing of assets for internal terrorists. However, funds of internal terrorists are frozen by national measures of the member states of the UN. Still, why did the European Union implemented resolution 1373 and did not leave the freezing of both internal and external terrorists up to the member states? In my eyes the European Union should also prescribe the freezing of assets of internal terrorists in the regulations since this would make a bigger contribution to the Area of Freedom Security and Justice. Framework Decisions Framework decision 2003/48/JHA implements article 4 of Common Position 2001/931/CFSP (judicial and police co-operation) Framework decisions are binding for member states. 90 The decisions are binding to result, so member states are free to decide on how to implement framework 87 Conclusion AG Maduro in case T-415/05, 23 January 2008, Al Barakaat International Foundation against the Council of the European Union and the Commission of the European Community, paragraph T-306/01 Yusuf see supra note Tappeiner 2005, Utrecht Law Review, Vol. 1, No. 1 (2005) p Article 34 (2) (B) TEU. 91 ECJ 16 June 2005, case 105/03, Criminal proceedings against Maria Pupino [2005] ECR I

19 decisions. 91 Framework decisions have no direct effect, this is stated in article 34 (2) (B) TEU. However the Court decided in Pupino 92 that member states have to interpret national law in light of the Framework decision, thereby the Court acknowledged the principle of supremacy in Framework Decisions (third pillar). 93 Therefore individuals and entities can invoke their rights in Framework decisions in the national courts of the member states, despite the fact that officially these decisions do not have direct effect. 94 Framework decisions are subjected to review by the European Court of Justice. 1.5 Does the EU make use of its autonomous powers by implementing the UN sanctions and why is this question important? In this paragraph I will explain to what extent the measures that were adopted by the Security Council and the European Union are binding. Are the measures, taken by the European Union to implement the terrorist lists, taken on the basis of competence of the Union or did the measures taken by the Union follow directly from the resolutions taken by the United Nations? Next to this I will explain what the effects are of the European Union prescribing terrorist sanctions that do not directly follow from the resolutions. Measures that do not directly follow from the UN resolutions were taken in order to execute European Union policy. It is important to explicate which measures directly follow from the UN measures and which not because when doing so it becomes clear what legal action can be taken against these measures. In the Kadi and Yusuf case the applicants asked the Court of First Instance to consider the validity of the UN Resolutions. 95 The Court answered that it did not have the competence to check the validity of Resolutions of the UN in the light of Community law. 96 However the Court did find itself competent to check the validity of the UN Resolutions in the light of Jus Cogens, since these norms stand above International law, and if the Court would find the UN Resolutions contradicting with the norms of Jus Cogens it could limit their binding effect, though the Court examined 92 EU Framework decisions An Integral Part of National Law European Democratic Lawyers, Moritz v. Unger. (Constulted 6 June 2008) EU Framework decisions An Integral Part of National Law European Democratic Lawyers, Moritz v. Unger. 94 Dewulf & Pacquee 2006, Netherlands Quarterly for Human Rights (4) (2006) p Ooik and Wessel, (2006) nr. 6 SEW- Tijdschrift voor Europees en Economisch Recht (2006), p Dewulf & Pacquee 2006, Netherlands Quarterly for Human Rights (4) (2006) p Bianchi 2006, The European Journal of International Law Vol. 17 no. 5 (2006) p

20 that none of the norms of Jus Cogens were violated by the UN Resolutions. 97 This means that measures that follow directly from the UN resolutions are not subjected to judicial review according to the CFI. The applicants appealed against the decision of the CFI. The Court has not decided yet against this appeal, however the Advocate General (AG) Maduro has written remarkable opinion with a different view towards the decision of the CFI. According to the AG, the European Community has the task to review the UN Security Council resolutions on the compatibility of human rights since the listed persons and entities do not have the possibility to question the listing decision before an international independent tribunal. 98 The CFI in OMPI concluded that measures that do not directly follow from the UN measures, which are thus completely taken on the competence of the European Union, are subjected to judicial review. 99 This means that it is indeed of importance to clarify which measures taken by the European Union do not follow directly from the resolutions since these measures are subjected to judicial review to consider the validity. 98 Opinion of Advocate General (Poiares Maduro), 16 January 2008 in Case C-402/05, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, paragraph T-228/02 OMPI see supra note 54, paragraph

21 2. Which sanctions are prescribed in the Terrorist resolutions and are these sanctions prescribed differently by the European Union? 2.1 Introduction In this chapter I will examine whether the European Union acts upon autonomous powers when executing the terrorist sanctions. I will explicate whether the European Union is prescribing more than what the Security Council has prescribed. Therefore this chapter contains an analysis of the individual sanctions mentioned in the terrorist resolutions and the sanctions prescribed within the European Union. If the European Union is prescribing more than obligated by the Security Council, it is acting upon autonomous powers. Several sanctions in resolution 1267 that were directed to a geographic area (Afghanistan) were lifted and do no longer exist. Therefore these lifted sanctions will not be discussed. 2.2 Comparison between the freezing sanction prescribed in the Taliban resolutions and the freezing sanction, implementing the freezing sanction of resolution 1267 and 1333, as prescribed by the Union: Paragraph 4 sub b of UN resolution 1267 prescribes one of the individual sanctions; the assets freeze sanction. The assets freeze sanction includes the freezing of financial or economic resources or funds derived or generated from property owned or controlled directly or indirectly by the Taliban, or by any undertaking owned or controlled by the Taliban, as listed on the terrorist list of Thereby it should be prevented that funds or financial resources are made available, directly or indirectly, for the benefit of the persons and entities listed. 101 Next to this financial funds, assets or funds derived from property directly or indirectly owned or controlled by Usama Bin laden, Al-Qaeda and their associated as listed by the Sanctions Committee have to be frozen. 102 First of all has to be cleared what actually can be frozen en what this freezing means. There is no real guidance from the UN what is actually the term funds or financial assets means so it is a matter for the member states to decide what actually 100 UN Security Council Resolution 1267, adopted 15 October 1999, S/RES/1267 (1999), paragraph 4 (b). 101 UN Security Council Resolution 1267, adopted 15 October 1999, S/RES/1267 (1999), paragraph 4 (b). 102 UN Security Council Resolution 1267, adopted 15 October 1999, S/RES/1267 (1999), paragraph 4 (b). 18

22 falls within the meaning of funds or financial assets. In fact there is no clear understanding among UN member states about, for instance, the content of the term freezing or the term funds, some states define these terms wider than others. 103 However, there does exists some international consensus on this point. First of all the United Nations adopted a Convention for the Suppression on the Financing of Terrorism in Conventions are treaties and thus pertain to the category of international binding law. 104 On 9 December the General Assembly of the United Nations adopted the Convention on the Suppression on the Financing of Terrorism. The Convention on the Suppression on the Financing of Terrorism is applicable on all the member states that have ratified the Convention. As of 19 November 2006, the Convention for the Suppression of the Financing of Terrorism counts 132 states that have signed the Convention. 106 Of these 132 states, 112 states have ratified the Convention and have become state parties to the Convention. 107 The Convention on the Suppression of the Financing of Terrorism sets international standards that states have agreed to implement. The Convention for the Suppression on the Financing of Terrorism has created international minimum standards to execute international sanctions. The European Union had called upon its member states to sign and ratify the Convention for the Suppression on the Financing of Terrorism in after the terrorist attacks in Since then, the European Union has expanded with the association of 12 new member states. All of these 12 member states have signed and ratified the Convention, except for Czech Republic that has only signed the Convention and Lithuania that did not 103 UN Security Council Resolution 1267, adopted 15 October 1999, S/RES/1267 (1999), paragraph 4 (b) p. 1 (6 January 2008) Suppressing the Financing of Terrorism a handbook for legislative drafting, legal department: International Monetary Fund International Convention for the Suppression of the Financing of terrorism. Can be found on: (United Nations Treaty Collection) Inventory of International Non-proliferation Organisations and Regimes Centre for Non-proliferation Studies. (Consulted 23 February 2008) (Go to and click on mobilizes.> advocacy centre > stay informed > fact sheets/ talking points > International Convention for the Suppression of the Financing of Terrorism ). Fact Sheet on the site of the United Nations Association of the United States of America about the Convention. (Consulted 30 May 2008) (Consulted 5 June 2008). 19