EU Advocate General Recommendation Threatens U.N. Anti-Terror Measures

In a move with potentially devastating consequences for the effectiveness of U.N. counterterrorism measures, an Advocate General at the European Court of Justice, Miguel Poiares Maduro, recommended to the court last week that it annul EU financial sanctions against suspected al-Qaida financier, Yassin Abdullah Kadi (aka “Qadi”). The sanctions were originally applied by the EU in 2001 in conformity with U.N. Security Council Resolutions. Kadi’s name was placed on the U.N.’s consolidated list of Qaida or Taliban affiliated persons and entities shortly after the 9/11 attacks. A series of U.N. Security Council Resolutions require U.N. member states to freeze the financial assets of such persons or entities.

In September 2005, the EU Court of First Instance rejected a complaint filed by Kadi that aimed to have the EU sanctions against him annulled. Kadi argued that the sanctions violated his “fundamental rights”: including his right to property and to judicial review. The court ruled, however, that as members of the United Nations, EU states are obliged under the terms of the U.N. Charter to apply Security Council resolutions and hence that review of the “lawfulness” of Security Council decisions falls outside its purview.

In his advisory opinion, Poiares Maduro rejected the reasoning of the court in this connection and argued that for the purposes of EU Courts the “constitutional framework” of the European Union itself takes precedence over U.N. Security Council decisions. “…[A]lthough the Court takes great care to respect the obligations that are incumbent on the Community by virtue of international law,” he writes,

it seeks, first and foremost, to preserve the constitutional framework created by the Treaty [establishing the European Community]. Thus, it would be wrong to conclude that, once the Community is bound by a rule of international law, the Community Courts must bow to that rule with complete acquiescence and apply it unconditionally in the Community legal order. The relationship between international law and the Community legal order is governed by the Community legal order itself, and international law can permeate that legal order only under the conditions set by the constitutional principles of the Community.

Rather than return the matter to the Court of First Instance, Poiares recommended that the Court of Justice itself find in favor of Kadi. The judges of the Court are reported to be “beginning” their deliberations. The full text of the Poiares Maduro opinion is available here. An official summary is available here.

As is clear from the wording of the Poiares Maduro opinion, its adoption by the European Court of Justice would, in effect, “liberate” EU member states from the binding character of their obligations under the U.N. Charter: at least inasmuch as EU institutions sanctioned such a disavowal, thus permitting something less than “complete acquiescence.” Although Poiares Maduro merely recommended that the court annul the EU regulation applying the U.N. sanctions “as it concerns Mr. Kadi,” it is equally clear that such a decision would open the door to additional challenges and threaten to convert the EU into a sort of safe-haven for terrorist financing.

It should be noted that at least one prominent EU state has already displayed less than “full acquiescence” vis-à-vis U.N. Security Council resolutions relating to counter-terrorism. Thus Germany has refused to cooperate with Spanish judicial proceedings against Mamoun Darkazanli: another individual included on the U.N. “terror list.” Like Kadi, the German-based Darkazanli is a suspected Qaida financier. He is known, moreover, to have had direct contact to members of the “Hamburg Cell” that organized the 9/11 attacks. In light of the indulgence shown toward Darkazanli in connection with the Spanish indictment, one can wonder whether Germany has in fact frozen his financial assets. In any case, UNSC Resolution 1373 likewise requires states to “afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts.”

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