Latest news
and documentation (Statewatch terrorist lists site, updated
18 September 2009).
September 2009 - Terrorism Lists, Executive Powers and Human Rights
(flyer) International conference, Brussels, 20 October 2009.
For more information see www.ecchr.org.
June 2009 - EU
renews terrorist list - Common Position 2009/468/CFSP of 15 June
2009 (pdf)
June 2009 - Court
of First Instance follows Kadi and annuls annulled the listing
of Omar Mohammed Othman (aka Abu Qatada) (Court Press
release, 11.6.09 pdf): Despite the ruling it is explicitly assumed
that the Council will now re-list him following the new procedures
introduced in the light of Kadi (see further below). The full text of the judgment is available
here.
June 2009 - Blocking
Faith, Freezing Charity: Charitable Giving and the "War
on Terrorism Financing": The American Civil Liberties
Union has released a comprehensive report documenting the consequence
of U.S. government actions on American Muslims' exercise of their
right to profess and practice their religion through charitable
giving. The ACLU's research shows that U.S. terrorism financing
policies and practices are seriously undermining American Muslims'
protected constitutional liberties and violating their fundamental
human rights to freedom of religion, freedom of association,
and freedom from discrimination.
May 2009 - Libyan
included on UN sanctions list submits new case at EU Court
(pdf): Case T-127/09, Abdulbasit Abdulrahim v. Council of the
European Union and Commission of the European Communities.
May 2009 - Staggering
65-year sentences given to Directors of US Charity in Hamas aid
case (Al Jazeera, 28.5.2009): A US court has sentenced
the former heads of a Muslim charity to 65 years in prison for
providing aid to the Palestinian group Hamas. The sentences have
been appealed. See also ACLU:
Designating Non-Profits As Terrorist Organizations Without Due
Process Undermines Security And Humanitarian Aid (link,
American Civil Liberties Union press release, 27.2.02) and "Terror
Prosecutions Shed More Heat Than Light" on a previous
prosecution of the Holy Land Foundation for 'material support'
for terrorism.
May 2009 - USA:
Justice Dept. Finds Flaws in F.B.I. Terror List (link:
NY Times, 6.5.09): The Federal Bureau of Investigation has incorrectly
kept nearly 24,000 people on a terrorist watch list on the basis
of outdated or sometimes irrelevant information, while missing
people with genuine ties to terrorism who should have been on
the list.
May 2009 - Overdue
Process: Protecting Human Rights while Sanctioning Alleged Terrorists
(pdf): Report from the Fourth Freedom Forum and Kroc Institute
for International Peace Studies at the University of Notre Dame
to CORDAID arguing that practices used by the United Nations
Security Council in the name of countering terrorism have led
to serious concerns about violations of human rights and limitations
on the work of civil society groups. The use of blacklisting
has eroded due process rights and discredited elements of the
international fight against terrorism. Enhanced efforts to create
clear and fair listing procedures are urgently needed and long
overdue.
May 2009 - Home
Office publishes list of 'bad people' banned from entering the
UK (link, Guardian 5.6.09). See also Shock
jock banned from UK vows to sue Jacqui Smith (link, Guardian
6.6.09).
April 2009 - European
Parliament Study: Overview of European and international legislation
on terrorist financing (pdf)
April 2009 - Lawsuits
Challenge Charity Blacklisting (link, antiwar.com, March
2004): In two court cases that could test the limits of the Barrack
Obama administration's executive authority as well as its commitment
to transparency, human rights lawyers are challenging the government's
right to use information obtained through warrantless wiretapping
as evidence and to shut down charitable organizations without
allowing them to defend themselves. In one case, the government
shut down the Al-Haramain Islamic Foundation, a Saudi charity,
in 2004, allegedly using information obtained though illegal
wiretaps. In the other, also involving a Muslim-oriented charity,
the American Civil Liberties Union (ACLU) is challenging the
constitutionality of government programs that designate organizations
as "terrorists" and close them down without providing
these groups a way to contest the decision in court.
April 2009 - Multilateral
Sanctions Against Terror Suspects and the Violation of Due Process
Standards (International Affairs, Chatham House, March
2009): Report by Monika Heupel finds that "that court decisions
and proceedings and, in the case of the UN, falling commitment
from member states, have prompted the UN Security Council and
the Council of the EU to implement limited reforms. However,
courts did not challenge the sanctions regimes per se and there
was no substantial pressure from civil society actors. Moreover,
owing to the competences and working methods of the UN Security
Council and the Council of the EU, powerful member states could
fairly easily deflect reform proposals from disaffected states
and other UN and EU bodies". See also UN
and EU Sanctions: Human Rights and the Fight Against Terrorism
- The Kadi Case, International Law Discussion Group Summary
Chatham House, February 2009.
April 2009 - Sison
case returns to Court in ongoing challenge to EU terrorist blacklist:
Press release from European Centre for Constitutional and Human
Rights in advance of the 'Sison II' hearing in Luxembourg on
30 April 2009 (case T-341/07). Sison is challenging the accuracy
and legitimacy of the 'statement of reasons' upon which the Council
of the EU now bases its decision to freeze his assets and included
him in the 'terrorist list'. See also pre-hearing
report of the court rapporteur, abbreviated
defence application and www.echr.eu.
April 2009 - Commission
proposals in response to Kadi (COM (2009) 187, 22 April
2009). The European Commission has presented its eagerly anticipated
proposal to amend the EC Regulations implementing the UN 'terrorist
list' in response to the celebrated EU Court of Justice ruling
in Kadi
and Al-Barakaat of September 2008. If adopted, the proposal
would introduce the equivalent listing and de-listing procedures
for those followed for the EU's own 'terrorist list' since the
ECJ ruling of December 2006 in the PMOI case. The proposal would
require the UN Security Council's Sanctions Committee to communicate
a 'statement of reasons' explaining any decision to designate
a group or individual as a 'terrorist' (or 'terrorist supporter'/associate)
for the purposes of asset-freezing to the European Commission.
The Commission will then decide on the basis of this statement
whether to transpose the UN sanctions committee decision into
EU law. If it does so - and there must be little, if any, expectation
that it will refuse - it will then communicate the statement
to the affected party, which will in turn be given the opportunity
to make representations to the secret EC Committee that will
assist the Commission in preparing its decisions (this committee
will presumably be comprised of the same officials as the secret
working party which assists the EU in preparing its 'proscription'
decisions). Since neither the EU Council nor the European Commission
is yet to provide any meaningful response indicating consideration
of representations challenging a 'statement of reasons', applicants
will inevitably turn to the EU Courts (which is precisely what
has happened in the fresh proceedings launched by Kadi and Al-Barakaat;
see cases referred to below). Groups and individuals listed prior
to the new 'post-Kadi' regime will have to apply for a statement
of reasons from the EC (and must provide a postal address other
than a PO Box). The new regime will create a somewhat bizarre
situation in which groups, individuals and businesses who are
included on the United Nations' terrorist list and resident/operating
in the European Union will have more rights in practice than
those outside of the EU - a situation which can hardly be squared
with the Universal Declaration of Human Rights and other UN 'founding
principles'. Ben Hayes comments: "In the light of the Kadi
ruling, this proposal represents the absolute minimum that the
European Commission could have done. But both the EU and the
UN still have a very long way to go before they can claim to
respect the fundamental rights they upon which they were founded".
Those who wish to examine the Commission proposals in detail
will need to refer to Regulation
881/2002/EC to make sense of the planned amendments.
March 2009 - Danish
T-shirt sellers convicted of financing terrorism (link:
guardian.co.uk, 25.3.2009). Six Danish activists who sold T-shirts
bearing the logos of two groups classified by the EU as terrorist
organisations have been found guilty of financing terrorism.
Denmark's supreme court ruled that the six - all members of the
Fighters+Lovers collective - were found to have contravened the
country's anti-terror laws by selling T-shirts to help fund the
Revolutionary Armed Forces of Colombia (Farc), and the Popular
Front for the Liberation of Palestine (PFLP). For background
see: Rebellion case.
March 2009 - New pending cases at
EU courts: Case C-27/09 P, Appeal by France against
judgment in Case T-284/08 (see PMOI, below); Case T-85/09, Kadi v. Commission; Case
T-45/09 (application not yet listed), Al Barakaat
International Foundation v. Commission (for background see update
of November 2008, below).
February 2009 - ACLU:
Designating Non-Profits As Terrorist Organizations Without Due
Process Undermines Security And Humanitarian Aid (link,
American Civil Liberties Union press release, 27.2.02). Several
of the USA's top non-profit humanitarian and philanthropic organizations
have submitted arguments to a federal court stating that the
government's authority and conduct in freezing a charity's assets
undermines critical humanitarian aid and the government's own
anti-terrorism efforts. See Amicus
Brief filed in support of due process rights for KindHearts
for Charitable Humanitarian Development, Inc. in a case brought
by the American Civil Liberties Union, the ACLU of Ohio and several
civil rights lawyers.
February 2009 - Europe
opens covert talks with blacklisted Hamas (link, Independent,
19 February 2009)
January 2009 - PMOI finally removed
from EU "terrorist list". In its latest update
of the "terrorist list", adopted on 26 January 2008,
the EU has finally removed the People's Mujahadeen Organisation
of Iran (PMOI) from the list of proscribed organisations. The
EU placed the PMOI on the list in 2002 and has until now refused
to remove the group - despite three rulings from the EU's Court
of First Instance (CFI) that the PMOI's proscription was unlawful.
The first successful challenge to EU terrorist list by PMOI in
December 2006 led to modest reforms by the EU (the "statement
of reasons" and the possibility of appeal to the EU's secret
terrorist proscription working group). This was sufficient for
the EU to argue that it had remedied the earlier human rights
infringements and maintain the PMOI in the updated lists it adopts
every six months; the PMOI appealed each of these decisions to
the European Courts. In 2007 a UK court also ruled that the PMOI's
inclusion on the UK terrorist was unlawful and in 2008 the government
lost its appeal. With the national decision that "justified"
the EU decision in the first place now unlawful as well, it took
two further rulings by the CFI before the EU Council (comprised
of member states governments) finally relinquished. Some 7 million
euros in frozen assets belonging to the PMOI will now be released.
France has appealed the latest Court ruling. An earlier request
by France to delay the Court's annulment of the relevant EC Regulation
was rejected (France had argued that the three months the Court
gave the EU to respond to its ruling in Kadi (below) had set
a precedent).
Here is a chronology of the seven
year proceedings:
17 June 2002 - EU
includes PMOI in list of "terrorist groups"
26 July 2002 - PMOI
lodges first application (case T-228/02)
12 December 2006 - CFI rules PMOI inclusion on terrorist list
unlawful (case T-228/02)
[EU maintains PMOI on the terrorist
list]
9 May 2007 - PMOI
submits new case (case T-157/07)
16 July 2007 - PMOI
submits new case challenging continued inclusion (case
T-256/07)
30 November 2007 - UK Court rules inclusion of PMOI on UK terrorist
list unlawful
7 May 2008 - UK government
loses appeal against PMOI decision
21 July 2008 - PMOI
submits new case at ECJ challenging continued inclusion on grounds
of UK rulings (case T-284/08)
23 October 2008 - CFI
rules PMOI inclusion on list unlawful (case T-256/07)
4 December 2008 - CFI
rules PMOI inclusion on list unlawful (judgment in case
T-284/08). See also Court
press release.
22 December 2008 - CFI rejects
request by EU Council and France to delay annulment of Council
Decision (case T-284/08)
23 December 2008 - PMOI
appeals parts of the judgment of the Court of First of 23 October
2008 (Case C-576/08 P)
21 January 2008 - France appeals
CFI ruling (Case C-27/09 P)
26 January 2009 - PMOI officially
removed from EU terrorist list
January 2009 - Updated
EU list of terrorist organisations adopted 26 January 2009.
January 2009 - Kadi
sues Paulson and US Treasury (complaint filed 16 January
2009, full-text): Saudi citizen Yassin Abdullah Kadi has sued
Henry Paulson, Adam Szubin, and the U.S. Treasury Department's
Office of Foreign Asset Control challenging his "wrongful
and unconscionable designation" as a "Specially Designated
Global Terrorist" in October 2001. Kadi describes his experience
as a "Kafkaesque journey without due process", as he
argues that "the designation is not supported by the administrative
record, and that the designation and review process violated
his First, Fourth, and Fifth Amendment rights, the International
Emergency Economic Powers Act (IEEPA) and the Administrative
Procedure Act (APA) (source: http://www.nefafoundation.org/).
January 2009 - UK:
"Britain's financial Guantanamo" enshrined in Counter
Terrorism Act 2008 (link to Act, full text): Following
Justice Collins' ruling in April 2008 (below) that measures introduced
to freeze terrorist assets were unlawful because they had not
been authorised or sanctioned by Parliament, the government incorporated
(and extended) the controversial Treasury asset-freezing regime
into its latest Counter-Terrorism Bill (introduced 24 January
2008, the government's fifth Bill in eight years). The-Counter
Terrorism Act (2008) entered the statute on 26 November 2008.
The relevant powers for the Treasury in respect to terrorist
financing and money laundering (note the function creep) are
set out in Parts 5 and 6 and Schedule 7 of the Act. The Act applies
to all existing Treasury powers in respect to terrorist financing:
the "Terrorism" and "Al-Qa'ida" Orders (those
struck down by Collins), Part 2 of the Anti-Terrorism, Crime
and Security Act 2001 (ATCSA) and the new powers in Schedule
7. The Treasury is empowered to give directions - orders to freeze
assets or prohibit financial and material support in respect
to specific persons, entities or countries - on the grounds of
designation of a "non-cooperating country" by the Financial
Action Task Force (an unaccountable intergovernmental body) or
where it "reasonably believes" that terrorism financing
(very broadly defined in effect), money laundering or the development/production
of CBRN [chemical, biological, radiological, nuclear] weapons
is taking place. UN Security Council and EU decisions "designating"
persons and entities as terrorist financers are also enforced
by the Treasury.
In addition to orders to freeze
assets and prohibit financial transactions mandated by the UN,
the directions that the Treasury can impose on the commercial
and public sector include obligations to perform or enforce "due
diligence", surveillance, "systematic reporting"
and winding-up orders (to shut-down businesses) in respect to
designated persons. The directions that the Treasury can impose
on the designated persons themselves, their families and associates
are open-ended and draconian, see "Britain's
Financial Guantanamo". The Act also allows police
officers to enter and search any premises they suspect are being
used by or for a designating person without a warrant. The Act
includes a right of judicial review of the Treasury's actions
for any person affected by financial restrictions decisions.
However, the rights the Act grants with one hand, it systematically
dismantles with the other, introducing special proceedings (SIAC/POAC
style tribunals), special non-disclosure rules (secret evidence)
and special advocates (court appointed lawyers). The Act also
allows, for the first time in British criminal proceedings, the
use of telecommunications intercept evidence. In sum, the new
Act has significantly extended the "exceptional" legal
regime introduced by ATCSA, Control Orders and "national
security" detentions and expulsions.
Finally, the Act reserved powers
to the Government over implementation and future extension of
the scope and function of the regime. This included powers for
the Lord Chancellor to make changes to the UK's civil procedural
law to implement the new Act's special procedures. See Statutory
Instrument No. 3085 (L.26) 2008, made: 2 December; laid
before Parliament: 3 December; entered into force: 4 December
2008. See also explanatory
memorandum on SI 3085 (L.26) 2008.
December 2008 - United
Nations Human Rights Committee finds inclusion of Belgian citizens
on UN "terrorist list" in violation of ICCPR
(HRC Decision, 29 December 2008, full-text). The complaint was
bought by Mr. Nabil Sayadi and Ms. Patricia Vinck (both Belgian
citizens), the director and secretary of Fondation Secours
International [reportedly the European branch of the Global
Relief Foundation, an American association that has been on the
sanctions list since 22 October 2002], against Belgium. Following
a criminal investigation by the Belgian authorities, their names
were placed on the lists appended to the Security Council resolution
(23 January 2003), the European Union Council Regulation (27
January 2003) and a Belgian ministerial order (31 January 2003),
but they were not given access to the relevant information justifying
their listing. The authors submitted several requests in 2003
to Belgian ministers and the Prime Minister, the European authorities,
the United Nations and the Belgian civil authorities. The ministers
invoked the Belgian States international obligations, the European
Commission said it had no authority to remove the names of the
plaintiffs from a list drawn up by the Sanctions Committee, and
the Prime Minister simply referred to the fact that an investigation
was under way to examine new evidence - neither of the plaintiffs
had been charged with a criminal offence. On 11 February 2005,
they obtained from the Brussels Court of First Instance an order
requiring the Belgian State to initiate the procedure to have
their names removed from the Sanctions Committees list. While
there was relevant information to hand - namely the absence of
any indictment of the authors in February 2004 - the Belgian
State did not initiate the de-listing procedure. The Court ordered
the Belgian State to urgently initiate a de-listing procedure
with the United Nations Sanctions Committee and to provide the
petitioners with proof thereof, under penalty of a daily fine
of ¬250 for delay in performance. Pursuant to this order,
on 25 February 2005 the State party requested the Sanctions Committee
to delist the authors. Over a year later, no decision had been
taken by the Sanctions Committee so their lawyers lodged a complaint
with the UN Human Rights Committee asserting violations of their
human rights under the International Covenant on Civil and Political
Rights. The Judges Chambers of the Brussels Court of First Instance
also confirmed the plaintiffs innocence, dismissing the case
on 19 December 2005 after more than three years of criminal investigation.
Neither of these two decisions has been appealed. In its Decision,
published 29 December 2008, the Committee concluded that there
had been breaches of the two Belgian's rights under articles
12 and 17 of the ICCPR [Article 12 covers freedom of movement
and the freedom to leave any country while article 17 recognizes
the right of everyone to protection against arbitrary or unlawful
interference with his privacy, family, home or correspondence,
and against unlawful attacks on his honour and reputation].The
Committee found that "the facts, taken together, do not
disclose that the restrictions of the authors rights to leave
the country were necessary to protect national security or public
order" [article 12] and ruled that "even though the
State party is not competent to remove the authors names from
the United Nations and European lists, it is responsible for
the presence of the authors names on those lists" and "an
unlawful attack on the authors honour and reputation" [article
17]
December 2008 - Security Council 6043rd
Meeting (AM), 15 December 2008 - no progress on implementing
Kadi: "Jan Grauls (Belgium), speaking as Chair of the
Al-Qaida and Taliban sanctions Committee said that resolution
1822 (a milestone in the life of the Committee established pursuant
to resolution 1267 (1999) on Al-Qaida and the Taliban - had introduced
several important innovations with regard to the listing and
de-listing procedures, the notification of sanctioned individuals
and entities, the posting of narrative summaries of reasons for
listing on the Committee's website and the review mechanisms.
Those improvements had added to the transparency, fairness and
clarity of the sanctions regime. He said Committee members had
committed themselves to transposing resolution 1822 in a new
framework for the practical implementation of the new mechanisms
before the end of the year. The new framework would form a solid
basis for the next Chair. However, one could not ignore the international
context in which those developments had occurred. Security Council
sanctions regimes, increasingly under pressure, had recently
been questioned, especially in light of the need for fair and
clear procedures for listing, de-listing and granting of humanitarian
exemptions. The Al-Qaida and Taliban sanctions Committee had
not made significant progress in that regard, but everyone must
remain committed to ensuring that more attention was given to
those concerns (source: The
Lift)".
December 2008: Commissioner
for Human Rights: "Arbitrary procedures for terrorist black-listing
must now be changed" (link): Thomas Hammarberg,
Council of Europe Commissioner for Human Rights, adds to the
critique of the international proscription regime, stating that
"the UN and the EU must themselves respect the human rights
standards on which they are based".
November 2008: Court
of Appeal overturns High Court decision to quash Treasury asset-freezing
regime (judgment of 30 October 2008, full-text): The
Court of Appeal has overturned April's stunning High Court judgment,
ruling that the statutory orders enacted by the government to
implement UN regulations and facilitate domestic asset-freezing
are lawful. For background see: Britain's financial Guantanamo.
November 2008: Kadi
and Al Barakaat maintained in EU and UN terrorist lists - Commission
considers the listing "justified": (Commission
Regulation 1190/2008/EC of 28 November 2008). Despite the ruling
of the European Court of Justice in September that the Council
Regulation freezing their assets was unlawful, the European
Commission has decided to maintain Yassin Abdullah Kadi and the
Al Barakaat International Foundation in the EU "terrorist
list" on the grounds that "the listing of [the parties]
is justified for reasons of its association with the Al-Qaida
network". In response to the ECJ's ruling, the European
Commission "communicated the narrative summaries of reasons
provided by the UN Al-Qaida and Taliban Sanctions Committee,
to Mr Kadi and to Al Barakaat International Foundation and [gave]
them the opportunity to comment on these grounds in order to
make their point of view known". Mr Kadi's lawyers duly
responded in a letter dated 10 November 2008, which the European
Commission simply dismissed on the grounds that the "preventive
nature of the freezing of funds and economic resources"
justifies the ongoing violation of Mr. Kadi's fundamental rights.
The Commission, effectively acting as judge, jury and executioner,
states that its response "compl[ies] with the judgment of
the Court of Justice". With the Swiss Attorney general having
dropped all investigations into Mr. Kadi's finances (a Swiss
Court cleared him of any links to 9/11 in December 2005), the
international courts to which the case will now inevitably return
are unlikely to agree that this justifies the continued denial
of access to his $9 million and other ongoing damages. "It
would have been better to have this system at the U.N. level,
for them to decide," said Gilles de Kerchove, the E.U. counterterrorism
coordinator. "Of course it would", adds Ben Hayes of
Statewatch, "but wouldn't it have been better still for
the EU's executive to follow the convictions of Europe's courts?"
November 2008 - Washington
Post: Terrorism Financing Blacklists At Risk (link):
Useful article on UN terrorist lists published 2 November 2008.
Includes updates on the Kadi and Nada cases.
September 2008 - EU
implementation of UN Security Council's 'terrorist list' breaches
fundamental rights - Kadi and Al Barakaat Foundation asset-freeze
unlawful. In a judgment with far-reaching implications
the European Court of Justice has today [3 September 2008] annulled
the Council Regulation freezing the assets of Yassin Abdullah
Kadi, a resident of Saudi Arabia, and the Al Barakaat International
Foundation of Sweden, part of the 'Hawala' banking system used
by the Somali Diaspora to transfer funds internationally.
June 2008 - The
EU and UN terrorist lists and the European Courts: The slow road
to procedural justice (seminar 19 June 2008). First in
a series of four seminars on "Terrorist lists",
proscription, designation and human rights organised by Haldane,
Statewatch and CAMPACC.
June 2008 - Lloyds
TSB expects £180m bill for US blacklist breach
(link, The Times, 6 June 2008). Lloyds TSB will take a
£180 million hit to its first-half figures as it prepares
to pay a multimillion-dollar settlement for breaking US rules
on dealing with sponsors of terrorism. See also US
Department of State list of "State sponsors of terrorism"
(link).
May 2008 - UK
Government loses appeal against de-proscription of PMOI -
how long before the EU backs down? The Court of Appeal has
refused to overturn a ruling that it must end the "perverse"
listing of an Iranian opposition group as a banned terrorist
group, ruling that there were "no valid grounds" to
contend that the Proscribed Organisations Appeal Commission made
legal errors when it ordered the People's Mojahedin Organisation
of Iran (PMOI) to be removed from the 'blacklist' (AP, 7.5.08).
In December 2006, the EU Court of Justice ruled that the PMOI
should be removed for from the EU terrorist list, partly on the
grounds that the reasons for its inclusion were "unclear".
But the EU has steadfastly refused to remove them from the list,
a position that now appears wholly untenable.
Breaking news 24 April 2008 - High Court
quashes Treasury asset-freezing regime
In a High Court judgment today
of the highest constitutional importance, Mr Justice Collins
has ordered that Government measures introduced to freeze terrorist
assets were unlawful and should be struck down as they had not
been authorised or sanctioned by Parliament. The measures contained
in the Terrorism (United Nations Measures) Order 2006 and the
Al-Qaida and Taliban (United Nations Measures) Order 2006 were
introduced directly by the Government through Orders in Council
to implement United Nations Security Council Resolutions to strengthen
domestic controls on the financing of terrorism and to comply
with the British Governments international obligations to enforce
UN Resolutions requiring such controls. They have never been
scrutinised, debated or approved by Parliament.
Ben Hayes of Statewatch comments:
"The government has again
shown itself all too willing to sacrifice basic freedoms in the
'war on terror' - the Orders declared unlawful today could scarcely
have intruded further into the fundamental rights and liberties
of UK citizens.
The High Court has sent an
unequivocal message to the government: a regime of this nature
should never have been introduced without consulting Parliament.
It must be hoped that MPs will look very closely at the way the
Treasury has been using these powers before endorsing such a
draconian regime in future".
On the Governments circumvention
of Parliament, Mr Justice Collins said in his judgment:
Counsel for the applicants
have submitted that the means used to apply the obligations imposed
by the UN Resolutions is unlawful. Parliament has been bypassed
by the use of Orders in Council. But in deciding the appropriate
way in which the obligation should be applied and in particular
in creating the criminal offences set out in the Orders it was
necessary that Parliamentary approval should be obtained. Those
submissions are in my judgment entirely persuasive.
On the extraordinary nature of
the Treasury regime, Mr Justice Collins said:
"The very wide definition
of economic resources makes it impossible for members of the
family of the designated person in particular to know whether
they are committing an offence or a licence is needed... A specific
query arose, and it is a good illustration of the absurdity which
can result, in relation to the loan of a car to an applicant
to enable him to go to the supermarket to get the familys groceries.
After some delay, the Treasury (in my view wrongly) decided that
a licence was needed. The car was an economic resource and could
be used to obtain or deliver goods or services. This was only
resolved by the Treasury after seeking ministerial consideration.
Similar concerns have been raised in relation to an Oyster card
to enable the applicant to travel and any borrowing of items
for any purpose. Since the possible penalty on conviction is
severe, the concerns are understandable and the effect on the
applicant and his family, whose human rights are also in issue,
is serious".
The government is to appeal and
can be expected to demand an expeditious hearing on the grounds
that the quashing of the Al-Qaida and Taliban Order leaves it
in breach of its obligations under international law.
Documentation
'G', 'K', 'A', 'M', and 'Q' v.
H.M. Treasury: Judgment - full-text (24 April 2004)
Press release: Birnberg-Peirce, Tuckers & Public Law Solicitors
(24 April 2004)
For full background see: Britain's financial Guantanamo (Statewatch,
21 April 2004).
See also Mean
and squalid measures, Victoria Brittain (Guardian, 24
April 2004) and Anti-terror
asset-freezing order improperly made (Times law report,
5 May 2008)
April 2008 - Britain's financial Guantanamo: This
Thursday [24 April 2008], Mr Justice Collins of the High Court
will deliver his judgment the case of 'G', 'K', 'A', 'M', and
'Q' v. H.M. Treasury. In the words of Rabinder Singh QC, "the
facts of the case are reminiscent of an Austro-Hungarian novel".
At issue are two 'Orders in Council' adopted under the 1946 United
Nations Act. This Act allows the government to introduce domestic
law to implement UN agreements - in this case a series of Security
Council Resolutions dealing with the financial sponsors of terrorism
- without consulting parliament. See full story.
April 2008 - CFI strikes another blow
to EU "terrorist list" - legality of "reformed"
procedures remains in doubt. The EU Court of First Instance
has overturned decisions by the Council of the EU to include
the Kurdish organisations PKK and Kongra Gel on the EU "terrorist
list" (04.04.2008). In Case T-253/04 bought on behalf of Kongra
Gel and 10 other individuals, the EU court ruled that the organisation
was not in a position "to understand, clearly and unequivocally,
the reasoning" that led the member states' governments to
include them. It reached the same conclusion in Case T-229/02, bought by Osman Ocalan
on behalf of Kurdistan Workers Party (PKK).
These judgments were widely excepted
following the rulings in favour of Jose Maria Sison and Stichting
al-Asqa (both based in Netherlands) in July 2007, and the precedent
set in the People's Mojahedin Organisation of Iran (PMOI) ruling
in December 2006. In this case the Court found that the EU's
proscription regime had denied the PMOI the right to a fair hearing
in which it could challenge its designation as "terrorist"
in accordance with its fundamental right to a fair trial (see:
analysis of PMOI judgment). This paved
the way for other proscribed groups and individuals to challenge
their inclusion in the list.
In response to the PMOI ruling,
the EU "reformed" its procedures for listing and de-listing.
Whereas prior to the PMOI judgment no mechanism existed for those
proscribed to either receive an explanation for their inclusion
or to challenge that explanation, the EU now provides affected
parties with a "statement of reasons". In turn, those
parties may then write back to the secret EU group responsible
for the decision to contest the statement and request de-listing.
The EU has maintained in the "terrorist list" those
groups and individuals who have already successfully challenged
their proscription at the EU Courts on the grounds that its "reforms"
remedy the fair trial breaches that the Court has identified.
This issue will not be resolved until the PMOI's new challenge
to the EU's decision to maintain them in the list (case
T-157/07) returns to the Court, which may take several
years. In the meantime, the challenges by other proscribed organisations
are mounting up - as are the compensation claims.
Ben Hayes of Statewatch comments:
"There isn't a lawyer
in Europe who believes that the EU 'reform' of its proscription
regime amounts to the fair hearing that EU law demands. On the
contrary, the regime remains a recipe for arbitrary, unaccountable
and politically-motivated decision making. By ignoring the increasingly
clear message from the EU Courts, the member states are doing
themselves a great disservice.
Instead of digging its heels
in, the EU should introduce a meaningful appeals procedure for
affected parties. To wait years for the EU court system or the
Strasbourg Court to deliver a judgment that everyone can see
coming would be an affront to the EU's stated commitment to human
rights."
February 2008 - PMOI
submits new case at ECJ (case T-257/07). The People's
Mojahedin Organisation of Iran (PMOI) successfully challenged
its designation as "terrorist" by the European Union
in December 2006. In spite of the ruling by the European Court
of First Instance, the EU has maintained the PMOI on its "terrorist
list". The PMOI is already seeking ¬1 million in damages
from the EU (see case T-157/07) - this latest case seeks
annulment of the latest EU Council Decision to include them in
the current terrorist list.
January 2008 - PACE
demands review of UN and EU blacklisting procedures for terrorist
suspects, which violate human rights (Council of Europe
press release, 23.1.08)
January 2008 - Opinion
in Al Barakaat appeal follows same reasoning as Kadi
(Opinion, full-text, 23.1.08): Advocate-General Miguel Poiares
Maduro's opinion on the Al Barakaat appeal reaches the same conclusions
as the Kadi opinion, below - the Court of First Instance was
wrong to dismiss the initial appeal on grounds of limited jurisdiction;
Al Barakaat's rights to property and a fair trial/judicial review
have been breached; the EC regulations implementing the UN decisions
re Al Barakaat should be annulled.
January 2008 - EU:
Advocate General delivers devastating opinion in Kadi UN challenge
(ECJ press release, 13.1.08): Yassin Abdullah Kadi, a resident
of Saudi Arabia, is accused of supporting terrorism by the the
UN Terrorism Sanctions Committee and included on the UN "terrorist
list", which is incorporated into EU law under EC Regulations.
Advocate-General Miguel Poiares Maduro argues that the EU Court
of First Instance was wrong to dismiss Kadi's appeal on the grounds
that the EU Courts lack jurisdiction over political decisions
taken by the EU. On the contrary, suggests the Advocate-General:
because there is no mechanism for judicial review of the UN decisions,
the EU must subject the sanctions regime to proper judicial review.
Advocate-General Poiares Maduro concludes that the EC Regulations
implementing the UN sanctions regime do infringe Mr. Kadi's
right to property and a fair trial/judicial review and should
therefore be annulled. He suggests that rather than referring
the matter back to the Court of First Instance, the European
Court of Justice should give final judgment on these questions.
The Opinion will now be considered by the Court of Justice in
advance of their ruling. See: full-text
of Opinion.
December 2007 - Pakistan: Rashid Rauf
escapes (see further "prisoner swap" story, below).
Rauf is said to have escaped from Pakistani custody when two
policemen escorting him from court in the capital, Islamabad,
to a jail outside the nearby city of Rawalpindi stopped to allow
him to pray in a roadside mosque. See: The
mysterious disappearance of an alleged terror mastermind
(Guardian, 28.1.07)
January 2007 - Danish
court rules Fighters and lovers not guilty of terror funding
(Guardian, 14.12.07): Seven Danes accused of supporting
terrorism by selling T-shirts bearing the logos of the Revolutionary
Armed Forces of Colombia (Farc) and the Popular Front for the
Liberation of Palestine have been found not guilty of the charges.
See also: English translation
of summary of judgment and "activists" story
below. The case has now been appealed by the prosecution. The
date of the new trial at the High Court (Landsret) has as yet
not been set. Another case against spokesperson of Oproer (Rebellion),
Patrick Mac Manus, both for the transfer of 100.000 DKr ($17,000)
to PFLP and FARC and the appeal to more than 200 European organisations
to challenge terrorist legislation, is set for 12-14 March and
10 April (Rebellion case).
It may be postponed until the Fighters and Lovers case has reached
a conclusion.
December 2007 - Pakistan launches
fresh offensive in Baluchistan, Britain accused of Baluchi "prisoner
swap": Baluchi activists report that on the 6 December
the Pakistani army launched a new offensive in the Kahan and
Dera Bugti Districts of Baluchistan. Hundreds of Baluchis are
said to have been detained, scores killed, and homes and schools
destroyed in air strikes from helicopter gunships and fighter
planes. Civilians are fleeing to the mountains. Meanwhile, the
British government is accused of arresting two Baluchi nationals
living in London with the intention of "swapping" them
for Rashid Rauf, a 26-year-old Briton held in a high security
prison in Pakistan and accused of involvement in the alleged
plot to blow-up transatlantic airliners in 2006. Faiz Baluch
and Hyrbyair Marri were arrested in London following raids on
their homes in the first week of December. They have been charged
with inciting another person to commit an act of terrorism "wholly
or partly outside the UK". See UK
accused of 'prisoner swap' with Pakistan (Telegraph,
7.12.12) and Foreign
Office accused of swap deal over terror suspects (Guardian,
11.12.07). For background see Never mind the Baluch? (June 2007).
December
2007 - Denmark: Seven activists facing prison for symbolic
support of PLFP and FARC. On 13 December 2007 a Copenhagen
court will announce its decision in the case of "Fighters
and Lovers", an activist group that campaigned against the
EU terrorist lists by attempting to raise funds for humanitarian
projects of the PLFP (Palestine) and FARC (Columbia) by selling
t-shirts baring the logo's of the two banned organisations. "F+L",
which describes itself as "a private enterprise dedicated
to the cause of freedom and hard-rocking street gear", is
charged with "sponsoring terrorism", a crime under
recent anti-terror laws that carries a maximum prison sentence
of 10 years. For more information see www.fightersandlovers.org. See also Fashion items or dangerous terrorist images? T-shirt
trial divides a nation (Guardian, 29.11.07) and
Court to decide if 'T' in t-shirt stands for terror
(Danish Ministry of Foreign Affairs, 21.9.07). For background,
see Rebellion,
Denmark.
November 2007 - On 30 November 2007 the
UK Proscribed Organisations Appeal Commission (POAC) ruled that
the Home Secretary had acted illegally in refusing to remove
the People's Mojahedin Organisation of Iran (PMOI) from its proscribed
list of 'terrorist' organisations. The case was brought by more
than 30 members of Parliament and the House of Lords. The POAC
ruling represents the first successful challenge to the proscription
provisions in the Terrorism Act 2000; the government has said
it intends to appeal. See POAC judgment, full-text and Government ordered to end 'perverse' terror listing
of Iran opposition (Guardian, 1.12.07). See also
Britain may lift ban on Iran's opposition
(Telegraph, 27.9.07) detailing an "extraordinary request"
by Government's solicitors to the Commission for a copy of the
judgment a week in advance of its publication. The UK ruling
follows a judgment
by the EU Court in December 2006 that the PMOI's inclusion
on the EU terrorist list was illegal insofar as it breached their
fair trial rights, although the EU has subsequently refused to
remove the PMOI from its list of banned organisations.
November 2007 - Procedures for blacklisting individuals suspected
of terrorist links are unworthy of the UN Security Council and
EU
(Council of Europe, 12 November 2007, full-text of report, pdf)
says PACE. The Legal Affairs Committee of the Council of Europe
Parliamentary Assembly (PACE) has adopted a highly critical report
by Dick Marty on the EU and UN 'terrorist lists', the Swiss senator
famous for heading the CoE inquiry into 'unlawful rendition'.
The report argues that the procedures are "unworthy"
of the UN and EU, and must be urgently overhauled to make them
fairer. See also earlier memorandum by Marty on UN
Security Council black lists (March 2007, pdf).
October 2007 - In a case brought by the
European Parliament, the European Court of Justice has struck
down the European Commission's decision to grant anti-terrorism
assistance to the Philippines government. See Judgment in Case C-403/05 (full-text,
23 October 2007). The ruling follows the EU Court of First Instance's
decision in June to annul the EU Council Decision to place Jose
Maria Sison, a Philippine exile and long term opponent of the
Philippines government, on the EU list of 'terrorists' for the
purposes of asset-freezing (see Sison judgment (full-text)).
October 2007 - Four new challenges
against EU 'terrorist' lists lodged at Court of First Instance.
In case T-348/07, Stichting Al-Aqsa are
returning to the Court to seek their removal from the list. The
CFI has already declared the Council's earlier decision to include
them on the list unlawful but the Council of the EU is refusing
to remove them from the list (see July 2007 judgment in Al-Asqa case). In
case T-362/07 and case T-363/07, Nouriddin El Fatmi and
Ahmed Hamdi are challenging their inclusion on the EU 'terrorist'
list following their conviction for membership of the "Hofstad"
group in the Netherlands. In case T-323/07, El Morabit Mohamed is
challenging his inclusion on the EU 'terrorist' list on the same
grounds, also arguing that since his conviction for membership
of the "Hofstad" group in the Netherlands is under
appeal, he has been denied the presumption of innocence and a
fair trial by the EU.
October 2007 - The European Court of
Justice has ruled in case C-117/06
- judgment (full-text) that it is illegal to sell property
to people whose assets have been frozen under Community law.
The case was brought by the sellers of a property who had agreed
the sale in 2000 - before the buyer was included on the EU's
'terrorist' list for the purposes of asset-freezing.
July 2007 - The EU Court of First Instance
has today (11.7.07) ruled the freezing of the assets of Jose
Maria Sison and Stichting al-Asqa (both based in Netherlands)
unlawful. See: The
Court of First Instance annuls the Council Decisions ordering
Jose Maria Sison and Stichting Al-Asqa funds to be frozen in
the fight against terrorism (Press release). Court judgments,
full-text: Sison
(pdf) and Al-Asqa
(pdf). The Court followed the reasoning in the December
2006 ruling on the PMOI. While the rulings strike another
crucial blow to the credibility of the proscription regime, the
EU has recently reviewed its procedures and now submits that
recent "reforms" in respect to notification and appeals
mean that it has now remedied the due process problems identified
by the Court. The EU may also, on these grounds, refuse to remove
the two from its terrorist list, as it has with the PMOI.
June 2007 - The public hearing for the
delivery of judgment by the European Court of First Instance
on the terrorist blacklisting of Jose Maria Sison (Case T-47/03)
has been scheduled for 11 July at 9:15 a.m. See also "statement
of reasons" for the blacklisting provided by the
EU Council on 23 April 2007 published on Defend Committee website,
which cites decisions by Dutch ministers and the US government
as grounds for the criminalisation of Prof. Sison and the freezing
of his assets.
June 2007 - UK: Never mind the Baluch? Article by
Ben Hayes on the UK government's blacklisting of the Baluchistan
Liberation Army and the situation in Baluchistan.
June 2007 - PMOI
submits new case at ECJ (case T-157/07).
See earlier report: Iran
mujahidin to challenge EU terror list (EUobserver.com,
12.5.07, archived by ncr-iran.org). Despite the ruling by the
European Court of First Instance that the EU acted unlawfully
in freezing the PMOI's assets, the organisation remains on the
EU "terrorist list". The PMOI is now going back to
court to seek removal from the list and ¬1 million in damages.
The matter has also been raised in the Danish parliament.
June 2007 - EU's secretive counter-terror group to face scrutiny
(EUobserver.com, 13.6.07): article suggesting that an "EU
clearing house" through which counter terrorism information
is exchanged by national intelligence services is responsible
for blacklisting decisions and should be held accountable.
June 2007 - Terrorism: the chosen tool of the weak against
the mighty (Le Monde Diplomatique) "Does 'global
war on terror' mask a new imperialism?" asks Eric Rouleau.
May 2007 - EU releases "statement of reasons"
for blacklisting of PMOI (EU Council doc. 5418/2/07,
11 May 2007): The EU has declassified the "statement of
reasons" it has sent to the People's Mujahadeen Organisation
of Iran to justify its inclusion on the "terrorist list".
The statement cites terrorist attacks by the PMOI in the 1990s,
2000 and 2001 and the decision of the UK government to ban the
PMOI in March 2001 as grounds for the EU ban. The UK's decision
was called into question by the CFIs ruling in December 2006
(see analysis
of PMOI ruling).
May 2007 - EU cites secret evidence against Iran group
(EUobserver.com, 31.5.07): "The EU claims it has secret
evidence that justifies keeping Iran opposition group PMOI on
its terrorist register but cannot reveal the content for security
reasons, in a situation stoking anger among some MEPs...."
May 2007 - Terrorist:
Flag of Convenience (Socialist Lawyer, April 2007). Article
by Bill Bowring arguing that the response of international organisations
to the attacks on the United States now poses a shockingly serious
threat to some fundamental human rights, especially procedural
guarantees.
May 2007 - Iran
mujahidin to challenge EU terror list (EUobserver.com,
12.5.07, archived by ncr-iran.org). Despite the ruling by the
European Court of First Instance that the EU acted unlawfully
in freezing the PMOI's assets, the organisation remains on the
EU "terrorist list". The PMOI is now going back to
court to seek removal from the list and ¬1 million in damages.
The matter has also been raised in the Danish parliament.
May 2007 - UK: Council of Europe: Press
release: Dick Marty
strongly deplores flagrant injustice of UN Security Council blacklisting
people suspected of terrorist links without evidence of wrong-doing
(pdf) Dick Marty: Memorandum full-text: UN
Security Council black lists (pdf)
May 2007 - UK: Public
meeting: "Terrorism" lists versus the rights to self-determination
and democracy: Wednesday 2 May, 6.30pm, Committee Room
3, House of Lords, Westminster SW1, Hosted by Lord Rea.
April 2007 - UN Human Rights Council issues damning report
on terrorist lists and sanctions (A/HRC/4/88
9.3.07, pdf). The report concludes:
With regard to the United
Nations sanctions regime, further improvements are needed to
ensure a listing process which is transparent, based on clear
criteria, and with an appropriate, explicit, and uniformly applied
standard of evidence, as well as an effective, accessible and
independent mechanism of review for individuals and concerned
States. Fair and clear procedures must include the right of an
individual to be informed of the measures taken and to know the
case against him or her; the right of such a person to be heard
within a reasonable time by the relevant decision-making body;
the right to effective review by a competent, independent review
mechanism; the right of such a person to representation with
respect to all proceedings; and the right of such a person to
an effective remedy.
March 2007 - European Court of Justice rejects Basque appeal
against inclusion on EU terrorist list (Judgment in case
C-354/04 P, 27.2.07, pdf). The European Court of Justice has
rejected an appeal by Gestoras Pro Amnistía and
two associated individuals against their inclusion on the EU
terrorist list.
February 2007 - European Court of Justice rejects Sison appeal
against denial of access to EU documents (Judgment in
case C-266/05 P, 1.2.07, pdf). The European Court of Justice
has rejected Professor Jose Maria Sison's appeal against the
EU Council's decision to refuse access to the documents relating
to his inclusion on the terrorist list. The case concerned the
interpretation of the Regulation 1049/2001/EC on public access
to EU documents - not the substantive issue of whether Sison
should be included in the EU's terrorist list. See also statement
by International DEFEND Committee: www.defendsison.be.
January 2007 - European
Court of Justice overturns decision to deny appeal by PKK
(Judgment in case C-229/05 P, 18.1.07, pdf). The European
Court of Justice (ECJ) has ruled that the Court of First Instance
(CFI) was wrong to declare inadmissible a case challenging the
inclusion of the PKK (Kurdistan Workers Party) in the EU's "terrorist"
list. The case was brought by Osman Ocalan, brother of imprisoned
PKK leader Abdullah, on the grounds that the PKK had declared
permanent ceasefire in April 2002 and was effectively disbanded.
In 2005, the CFI decided that "it is not for the Court,
when examining the admissibility of the action, to rule on the
reality of the PKKs existence". However, it then found that
because PKK had disbanded, Mr Ocalan could not be its
lawful representative. While this paradox was not lost on the
Court, it declared the case inadmissible.
The UK government and European
Commission both intervened in the case, arguing that the CFI
ruling should stand, but, following the advice of the Advocate
General (below), the ECJ found that the CFI had "distorted"
the evidence and should have recognised Mr Ocalan's power of
attorney. The case will now return to the CFI for a decision
on the substantive appeal against the PKK's inclusion in the
terrorist list. Last month the CFI ruled that the PMOI's right
to a fair hearing had been breached by the Council's failure
to provide the organisation with any information concerning its
decision to add them to the "terrorist" list (see analysis
of PMOI ruling).
The appeal in the PKK case was
brought jointly by Mr Ocalan and Serif Vanly, on behalf of the
Kurdistan National Congress (KNK), which is not included
in the EU terrorist list (only KADEK and KONGRA-GEL are listed
as aliases of the PKK). The KNK challenged the proscription of
the PKK on the grounds that it was directly affected by the ban
but the ECJ upheld the CFI's decision to declare its appeal inadmissible.
January 2007 - U.S. to let people apply to get off no-fly lists
(Reuters India, 18.1.07, link)
January 2007 - UN Sanctions: Listing/De-listing and Due Process
(securitycouncilreport.org, link). Article on changes
in proscription procedures of the UN Security Council (the UN
has proscribed 487 groups and individuals who are alleged supporters
or associates of the Taliban or al-Qaeda). A "statement
of the case" will be produced for all new listings but groups
and individuals will not be informed or be able to challenge
the contents of the statement. As to appeals against proscription
and the Security Council has established a "focal point"
and new de-listing procedures. However, the changes are little
more than "window-dressing" since affected parties
will still be denied access to the procedure and states will
retain maximum discretion over who should be included or removed
from the list.
See: Security
Council Resolution 1730 on de-listing procedures (19
December 2006)
Amended
guidelines for the Taliban Sanctions Committee (29 November
2006)
January 2007 - EU backing down on terror list secrecy
(EUobserver.com, 16.1.07, link). Report on the implications
of the PMOI ruling on the issuing of a "statement of reasons"
to groups and individuals on the list. See also Statewatch
analysis of PMOI
ruling.
January 2007 - US Supreme Court refuses case challenging PMOIs
designation as terrorists (New York Times, 9.1.07,
link)
December 2006 - EU terrorist list updated (EU Official
Journal). On 21 December 2006 the EU added two groups and nine
individuals to its list of terrorist entities. The nine are named
as members of the Netherlands-based "Hofstadgroep".
The organisation itself is also proscribed. Four of the named
individuals have been convicted in Holland, including Mohammed
Bouyeri, the man who killed film director Theo van Gogh, although
five were acquitted due to a lack of evidence. The other group
added to the EU list is the TAK - Teyrbazen Azadiya Kurdistan,
a.k.a. Kurdistan Freedom Falcons, Kurdistan Freedom Hawks.
The EU "terrorist"
list now contains a total of 50 groups and 54 individuals (see
previous
list).
December 2006 - Successful challenge to EU terrorist list
by PMOI (Statewatch report). In a judgment that has far-reaching
implications the EU Court of First Instance has annulled the
EU Council's decision to include the PMOI on its terrorist list.
The Court found that the PMOI was denied a fair hearing in which
it could challenge the decision. The judgment means that the
EU will now have to provide a "statement of reasons"
to groups and individuals it designates as terrorist.
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