Judicial Review by EU and Domestic Courts of the Al Qaeda and Taliban Sanctions Regime: Counterterrorism, Due Process, and the Search for the Golden Mean

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SUMMARY

This paper explores the extent to which sanctions, including asset-freezing and travel bans, imposed by the UN Security Council in its fight against terrorism on persons and entities allegedly associated with Al Qaeda, Osama bin Laden, and the Taliban, have been amenable to judicial review by EU and domestic courts, and the impact of such litigation on the implementation and development of the existing Al-Qaida and Taliban sanctions regime.

I analyze the practice of EU and domestic courts, with special focus on the English courts, in reviewing the sanctions imposed by states and the European Union against Al Qaeda and the Taliban pursuant to Security Council resolutions. I also examine the response of the executive bodies responsible for implementing sanctions, such as the European Commission and Her Majesty's Treasury, to legal challenges brought by the affected individuals.

Courts have generally been inclined to uphold domestic or EU acts implementing Security Council resolutions, on the basis that they draw their legitimacy from these resolutions. However, EU and English courts have recently acknowledged the inadequacies of the sanctions regime as implemented by the European Union and domestically, particularly the lack of adequate procedures whereby a person may challenge the freezing of their assets.

In practice, if a domestic or EU court finds that the implementing act infringes fundamental rights, the court may quash it and order the relevant authorities to modify the implementation of the sanctions regime to remedy the infringements. These modifications could, in principle, clash with the conditions set forth by the Security Council. The rulings of EU and domestic courts may therefore compel states to violate their international obligations under Security Council resolutions and the UN Charter.

However, rather than allowing noncompliance with the relevant resolutions, the Security Council should consider introducing needed improvements to bring the sanctions regime into compliance with fundamental rights, thereby avoiding an undermining of its authority and the effectiveness of the sanctions regime. In sum, this paper shows that legal actions before EU and domestic courts have triggered re-evaluation and encouraged the introduction of some important improvements to the sanctions regime and/or its implementation.

INTRODUCTION

In the wake of the terrorist bombings of U.S. embassies in Nairobi and Dar el Salaam in 1998, the Security Council adopted Resolution 1267 (1999), imposing financial sanctions and an air embargo against the Taliban. A sanctions committee, comprising all fifteen members of the Security Council, was established to oversee the implementation of these measures. In subsequent resolutions, which defined terrorism in all its forms and manifestations as constituting one of the most serious threats to international peace and security, the Security Council modified and strengthened the sanctions regime.

The sanctions, adopted under Chapter VII of the UN Charter as preventive measures in the fight against terrorism, now apply to designated individuals and entities associated with Al Qaeda, Osama bin Laden, and/or the Taliban wherever located. States are required to implement three sanctions measures with regard to Al Qaeda, Osama bin Laden, and the Taliban, namely to freeze their funds and other financial assets; prevent their entry into or transit through states' territories; and prevent the direct or indirect supply, sale, and transfer of arms and military equipment to any individuals and entities associated with them.

The sanctions committee maintains a regularly updated consolidated list of individuals and entities identified or associated with Al Qaeda, Osama bin Laden, or the Taliban. States may ask the sanctions committee to add names to the consolidated list. Designated individuals and entities are entitled to submit a request for delisting through the state of their residence or citizenship or through a "focal point," which is now replaced by an ombudsperson. …