EDPS on the EU’s counter-terrorism policy

The EDPS adopted an opinion yesterday on the Commission’s Communication of 20 July 2010 entitled “The EU Counter-Terrorism Policy: main achievements and future challenges. This opinion aims at “contributing to more fundamental policy choices in an area where the use of personal information is at the same time crucial, massive and particularly sensitive.” According to the EDPS:

Many of these initiatives were taken, often as a fast response to terrorist incidents, without a thorough consideration of possible duplications or overlapping with already existing measures. In some cases, even a few years after their entry into force, it is not yet established to which extent the invasion of citizens’ privacy ensuing from these measures was in all cases really necessary.

1. The EDPS highlights that the  “prevention” and “protection” strands of the EU’s CT strategy “are the most delicate ones from a data protection perspective” because

  • they are by definition based on prospective risk assessments
  • they envisages increasing partnerships between law enforcement authorities and private companies where info collected by private companies for commercial purposes is used by public authorities for law enforcement purposes.

On this last point the EDPS says:

The preventive analysis of information would entail the collection and processing of personal data relating to broad categories of individuals (for example, all passengers, all internet users) irrespective of any specific suspicion about them. The analysis of these data – especially if coupled with data-mining techniques – may result in innocent people being flagged as suspects only because their profile (age, sex, religion, etc.) and/or patterns (for example, in travelling, in using internet, etc) match those of people connected with terrorism or suspected to be connected. Therefore, especially in this context, an unlawful or inaccurate use of (sometimes sensitive) personal information, coupled with broad coercive powers of law enforcement authorities, may lead to discrimination and stigmatization of specific persons and/or groups of people.

In this perspective, ensuring a high level of data protection is also a means contributing to fighting racism, xenophobia and discrimination, which, according to the Communication, “can also contribute to preventing radicalisation and recruitment into terrorism”.

2. The EDPS further highlights the need for a consistent approach between all Communications and initiatives in the area of home affairs, which is currently lacking. He recommends that the principle of necessity is explicitly considered in each proposal in this area. This should be done both by considering possible overlaps with already existing instruments and by limiting the collection and exchange of personal data to what is really necessary for the purposes pursued. He suggests that “existing instruments should prove in periodic reviews that they constitute effective means of fighting terrorism.” The EDPS recommends that special attention be paid to those proposals resulting in general collections of personal data of all citizens, rather than only suspects.

3. The EDPS also comments on the use of restrictive asset-freezing measures

The need for further improvements of the procedure and the safeguards available to listed individuals has been recently confirmed by the General Court in the so-called “Kadi II” case. In particular, the Court highlighted the necessity that the listed person should be informed in details about the reasons for being listed. This comes very close to the rights, under data protection law, to have access to one’s own personal data and to have them rectified, notably when they are incorrect or out of date. These rights, explicitly mentioned by Article 8 of the Charter of Fundamental Rights, constitute core elements of data protection, and may be subject to limitations only to the extent these limitations are necessary, foreseeable and laid down by law.

In this perspective, the EDPS agrees with the Communication that one of the future challenges in the area of counter-terrorism policy will be the use of Article 75 TFEU. This new legal basis, introduced by the Lisbon Treaty, specifically allows establishing asset-freezing measures against natural or legal persons. The EDPS recommends that this legal basis be used also to lay down a framework for asset freezing which is fully compliant with the respect of fundamental rights. The EDPS is available to further contribute to the development of relevant legislative instruments and procedures, and looks forward to being duly and timely consulted when the Commission – pursuant to its 2011 Work Programme – will develop a specific regulation in this area.

Against this background, EDPS recommends the EU legislator to step up the role of data protection, by committing to specific actions (and deadlines), such as:

o Assessing the effectiveness of existing measures while considering their impact on privacy is crucial and should vest an important role in European Union’s action in this area;

o When envisaging new measures, considering possible overlapping with already existing instruments, taking into account their effectiveness, and limiting the collection and exchange of personal data to what is really necessary for the purposes pursued;

o  Proposing the establishment of a data protection framework applicable also to the Common Foreign and Security Policy;

o Proposing a comprehensive and global approach to ensuring, in the area of (asset-freezing) restrictive measures, both the effectiveness of the law enforcement action and the respect for fundamental rights, on the basis of Article 75 TFEU;

o Putting data protection at the heart of the debate of the measures in this area, by ensuring for example that Privacy and Data Protection Impact Assessments are carried out and competent data protection authorities are timely consulted when relevant proposals in this area are put forward;

o Ensuring that data protection expertise is fed into the security research at a very early stage, so as to guide policy options and to ensure that privacy is embedded to the fullest possible extent in new security-oriented technologies;

o Ensuring adequate safeguards when personal data are processed in the context of international cooperation, while promoting the development and implementation of data protection principles by third countries and international organisations.

European General Court says creation of UN ombudsman post does not solve due process concerns in UN listings regime in Kadi II (Case T‑85/09)

The General Court (the former Court of First Instance) stated that the considerations of the European Court of Justice “remain fundamentally valid” even after the creation of the focal point and the Office of the Ombudsperson because they “cannot be equated with the provision of an effective judicial procedure for review of decisions of the Sanctions Committee”.

The Court continues in par.128:

In essence, the Security Council has still not deemed it appropriate to establish an independent and impartial body responsible for hearing and determining, as regards matters of law and fact, actions against individual decisions taken by the Sanctions Committee. Furthermore, neither the focal point mechanism nor the Office of the Ombudsperson affects the principle that removal of a person from the Sanctions Committee’s list requires consensus within the committee. Moreover, the evidence which may be disclosed to the person concerned continues to be a matter entirely at the discretion of the State which proposed that he be included on the Sanctions Committee’s list and there is no mechanism to ensure that sufficient information be made available to the person concerned in order to allow him to defend himself effectively (he need not even be informed of the identity of the State which has requested his inclusion on the Sanctions Committee’s list). For those reasons at least, the creation of the focal point and the Office of the Ombudsperson cannot be equated with the provision of an effective judicial procedure for review of decisions of the Sanctions Committee (see also, in that regard, the observations made at paragraphs 77, 78, 149, 181, 182 and 239 of the UK Supreme Court judgment in Ahmed and Others and the considerations expressed in Point III of the Ninth Report of the Monitoring Committee).

129    In those circumstances, the review carried out by the Community judicature of Community measures to freeze funds can be regarded as effective only if it concerns, indirectly, the substantive assessments of the Sanctions Committee itself and the evidence underlying them (see also, to that effect, the UK Supreme Court judgment in Ahmed and Others, paragraph 81).

The Court further disagreed with the Commission and the Council that the ECJ gave no clear guidance to the extent and intensity of the judicial review had to be. The Court said that “the Court of Justice intended that its review, ‘in principle [a] full review’, should extend not only to the apparent merits of the contested measure but also to the evidence and information on which the findings made in the measure are based”.

The conclusion must therefore be that, by taking on the essential content of the General Court’s reasoning in OMPI, with regard to the alleged infringements of the rights of the defence and the right to an effective judicial review, the Court of Justice approved and endorsed the standard and intensity of the review as carried out by the General Court in OMPI.

The Court then summarizes the OMPI standard for judicial review of the lawfulness of a Community decision to freeze funds It states that it should adresses whether

  •  the evidence where the listing is based on is “factually accurate, reliable and consistent” and whether that evidence contains all the relevant information to be taken into account in order to assess the situation and whether it is capable of substantiating the conclusions drawn from it”. (par.142).
  • the rights of the defence are observed and that the requirement of a statement of reasons is satisfied and also, where applicable, that any overriding considerations relied on exceptionally by the competent Community institution in order to justify disregarding those rights are well founded. (par.143)

It adressed the difficulty of this review resulting from the secret or confidential information that form the basis of the Council’s decision to list somebody.

145    In that regard, the General Court further stated, at paragraph 73 of PMOI II, that the Council is not entitled to base its decision to freeze funds on information or material in the file communicated by a Member State, if the said Member State is not willing to authorise its communication to the Community judicature whose task is to review the lawfulness of that decision. At paragraph 76 of PMOI II, the Court stated that the refusal of the Council and the French authorities to communicate, even to the Court alone, certain information on which the measure contested in that action was based, had the consequence that the Court was unable to review the lawfulness of the contested decision. At paragraph 78 of PMOI II, the Court concluded that, in those circumstances, the applicant’s right to effective judicial protection had been infringed.

146    The General Court also noted in that regard, at paragraph 156 of OMPI, that, although the European Court of Human Rights recognises that the use of confidential information may be necessary when national security is at stake, that does not mean, in that court’s view, that national authorities are free from any review by the national courts simply because they state that the case concerns national security and terrorism (see the judgment of the European Court of Human Rights in Chahal v United Kingdom, § 131, and case-law cited, and its judgment in Öcalan v Turkey of 12 March 2003, No 46221/99, not published in the Reports of Judgments and Decisions, § 106 and case-law cited).

147    The General Court added, at paragraph 158 of OMPI, that it was not necessary for it to rule, in the action before it, on the separate question as to whether the applicant and/or its lawyers could be provided with the evidence and information alleged to be confidential, or whether they had to be provided only to the Court, in accordance with a procedure which remained to be defined so as to safeguard the public interests at issue whilst affording the party concerned a sufficient degree of judicial protection.

Those considerations, the Court argued,  should be supplemented by certain considerations based on the “draconian” nature and effects of fund-freezing measures such as those at issue here, viewed from a temporal perspective. Very importantly the Court notes that Kadi’s funds have been indefinitely frozen for nearly 10 years now, and suggests that after such a long time such sanctions might amount to a criminal punishment. The Court hereby supports the UN High Commissioner for Human Rights and the UN Special Rapporteur on the protection of human rights while countering and discards the opinion of the Human Rights Committee in Sayadi Vinck.

In the scale of a human life, 10 years in fact represent a substantial period of time and the question of the classification of the measures in question as preventative or punitive, protective or confiscatory, civil or criminal seems now to be an open one (see also, in that connection, the Ninth Report of the Monitoring Team, paragraph 34). That is also the opinion of the United Nations High Commissioner for Human Rights who, in a report to the General Assembly of the United Nations of 2 September 2009, entitled ‘Report … on the protection of human rights and fundamental freedoms while countering terrorism’ (document A/HRC/12/22, point 42), makes the following statement:

‘Because individual listings are currently open-ended in duration, they may result in a temporary freeze of assets becoming permanent which, in turn, may amount to criminal punishment due to the severity of the sanction. This threatens to go well beyond the purpose of the United Nations to combat the terrorist threat posed by an individual case. In addition, there is no uniformity in relation to evidentiary standards and procedures. This poses serious human rights issues, as all punitive decisions should be either judicial or subject to judicial review.’

Unfortunately the Court however finishes with saying that “a discussion of this question is outside the scope of these proceedings as it is defined by the pleas set out in the application”.

The court then moves on to examine the infringement of the rights of the defence and of the right to effective judicial protection. It notes that “the few pieces of information and the imprecise allegations in the summary of reasons appear clearly insufficient to enable the applicant to launch an effective challenge to the allegations against him so far as his alleged participation in terrorist activities is concerned”.

Interestingly the Court refers to the standards of the ECHR judgment in A and Others v United Kingdom to conclude that the applicant was not in a position to mount an effective challenge to any of the allegations against him and that the contested regulation was adopted in breach of the applicant’s rights of defence.

The Court ends this part of the judgment with an elaboration upon the procedural differences between the two Community regimes used for the freezing of funds.

186 The Community fund-freezing regime at issue in the cases culminating in the OMPI and PMOI I judgments is characterised by a two-tier procedure, one national, the other Community (OMPI, paragraph 117). Under that regime, the rights of the defence are in the first place effectively safeguarded as part of the national procedure, in which the party concerned must be placed in a position in which he can effectively make known his view on the evidence against him (OMPI, paragraph 119), subject to review by the national courts, or, as the case may be, the European Court of Human Rights (OMPI, paragraph 121). It is precisely those safeguards of the rights of the defence which exist at national level, subject to effective judicial review, which relieve the Community institutions of any obligation to provide fresh safeguards at Community level in relation to the same subject-matter (see, to that effect, OMPI, paragraphs 121 to 125).

187    In contrast to that first regime, the Community fund-freezing regime at issue in this instance – although it too has a two-tier procedure, one at United Nations level, the other at Community level – is characterised by an absence of any safeguards of the rights of the defence, which may be the subject of effective judicial review, at the level of the procedure before the Sanctions Committee (see paragraphs 127 and 128 above). It follows, contrary to what was held in the OMPI case, that the Community institutions are required to ensure that such safeguards are put in place and implemented at Community level (see also, to that effect, the Opinion of Advocate General Poiares Maduro in Kadi, point 54).

188    It follows from all the foregoing considerations that the second plea is well founded as regards both the first part alleging infringement of the rights of the defence and the second part alleging infringement of the principle of effective judicial protection (see, to that effect, the judgment of the Court of Justice in Kadi, paragraph 353).


The Escalating Ties Between Middle Eastern Terrorist Groups and Criminal Activity Remarks by David T. Johnson, Assistant Secretary of State for International Narcotics and Law Enforcement Affairs, at the Washington Institute for Near East Policy.

Domestic Terror: the Worry about Homegrown Plots,” Newsweek, November 20, 2009.

Peter Fromuth has posted an ASIL Insight on The European Court of Justice Kadi Decision and the Future of UN Counterterrorism Sanctions.

Dawinder S. Sidhu (Center for Justice, Law & Society) has posted Judicial Review as Soft Power: How the Courts Can Help Us Win the Post-9/11 Conflict (American University – National Security Law Brief) on SSRN. Here is the abstract:

    The American military efforts in Afghanistan and Iraq are not yielding desired results and, even assuming they were, such military success would not be sufficient to prevail in the war against transnational terrorism. The United States must engage in the battle of hearts and minds in order to achieve meaningful safety and a lasting respite from the specter of terrorist activity. To participate in this more intangible, intellectual battle, the United States will need to utilize its “soft power,” or its ability to draw nations or peoples towards its policy preferences through attraction, as distinct from “hard power,” in which foreign conduct is shaped by military or economic coercion. The question becomes what soft power resources are available to — and may be credibly invoked by — the United States?

    This Article argues that the American constitutional design, particularly its commitment to the rule of law, is an aspect of soft power that, if communicated externally, will attract moderate Muslims and others to American interests and help quell the reach and appeal of terrorists bent on destroying the United States. Such “legal soft power” will resonate with the international audience only if we adhere to fundamental American principles in actuality — they must be more than mere platitudes. Accordingly, I suggest that the Supreme Court’s robust evaluation of individual rights claims in the post-9/11 context demonstrates that the judiciary has been faithful to the rule of law even in times of national crisis and stress. It is not the outcomes that necessarily shows this, but the genuine process within which federal actions may be challenged.

    If it is the case that the rule of law may be an element of soft power conceptually and that the judicial decisionmaking has honored it in practice, then it would benefit American national security interests if others in the world were made aware of the American constitutional scheme, one of separation of powers and judicial review, and the Supreme Court’s fidelity to the Constitution in times of war. Such information may make it more likely that other nations and peoples will be attracted to American interests. In an odd sense, the judicial branch may be a positive instrument of foreign policy and a beneficial tool in America’s current war — even if it strikes down executive or legislative actions in the government’s prosecution of the war itself.

Markus D. Dubber (University of Toronto – Faculty of Law) has posted The War on Terror and U.S. Criminal Law on SSRN. Here is the abstract:

    This paper addresses the question of what impact the so-called “new security agenda against terrorism” has had on substantive criminal law in the United States. This question has a simple answer: None.

    There is nothing new about the so-called War on Terror, except for a redesignation of its object, from Crime to Terror. The mode of governance, its essence as a “security agenda,” remains unchanged. The War on Terror is another, contemporary, manifestation of a mode of penal governance that regards itself as emanating from the sovereign’s power to police, understood here in the traditional sense of the power to maintain the peace, or, in Blackstone’s phrase, the sovereign’s power as “pater-familias of the nation” to see after “the public police and oeconomy,” i.e., “the due regulation and domestic order of the kingdom.” The security agenda against terrorism, in this sense, is neither “new,” nor can it have an “impact” on American criminal law, simply because it is American criminal law, and always has been.

CRS – Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress

Somalia and the Pirates – David Anderson, Rob de Wijk, Steven Haines, Jonathon Stevenson

The North African Franchise: AQIM’s Threat to U.S. Security – CPT Russell J. Isaacs. Strategic Insights

Bilateral Cooperation and Bounded Sovereignty in Counter-Terrorism Efforts – Bidisha Biswas. Border Policy Research Institute, Western Washington University

Combating International Terrorism: Turkey’s Added Value – James Ker-Lindsay and Alastair Cameron, eds. Royal United Services Institute

United Nations Security Council Resolution 1540 at the Crossroads: The Challenges of Implementation – Michael Ryan Kraig. Stanley Foundation

Michael Kent Curtis (Wake Forest University – School of Law) has posted The Klan, the Congress, and the Court: Congressional Enforcement of the Fourteenth And Fifteenth Amendments & the State Action Syllogism, A Brief Historical Overview (University of Pennsylvania Journal of Constitutional Law, Vol. 11, No. 1398, 2009) on SSRN. Here is the abstract:

    A Court committed to protecting constitutional rights and protecting citizens against political terrorism could reasonably have upheld congressional power to reach private acts of terror designed to deter or punish the exercise of constitutional rights. It could have done so while also protecting the values of federalism. While the Justices at the time reached a restrictive result, the Congress, that included a number of framers of the Fourteenth Amendment, did not. Recent Court decisions have chosen the decision of the Justices who considered constitutionality of the response to political terror over the decision of most of the framers of the Amendment.

Peyton Cooke (Univ. of Alabama – Law) has posted Bringing the Spies in from the Cold: Legal Cosmopolitanism and Intelligence under the Laws of War (Univ. of San Francisco Law Review, forthcoming). Here’s the abstract:

Recently, as never before, intelligence operations have come under international humanitarian law. The Supreme Court has handed down the Hamdan and Boumediene decisions; President Obama has required the CIA and other interrogators to abide by Geneva Conventions Common Article 3 standards for all interrogations; district courts have declared stringent law of war criteria for overseas detentions; the Executive has applied the laws of war to terrorist targeting; and the private groups which have initiated this litigation, and pressed for these changes, continue to
work for even more reform. This paper addresses the roots and effects of such changes. It begins by defining its key term – legal cosmopolitanism – with reference to a wide variety of legal materials, from Eric Posner, the European Court of Human Rights, and others. The paper attempts to illuminate that term’s core parts: a belief in an expanded United States demos, and preference for judicial over political power. The paper then continues with a survey of intelligence law. It illuminates the assumptions of a limited demos and unfettered executive that have until recently underlay intelligence law domestically, and goes on to establish that, in the long history of intelligence, no international law standard has heretofore been successfully applied to these operations. Thus legal cosmopolitanism and intelligence seem opposed, one attempting to expand the demos, with the other depending to some extent on limiting the demos.

Nevertheless, recent executive and judicial actions affecting intelligence law have displayed strong and recognizable cosmopolitan underpinnings. The aforementioned executive orders, district court decisions, and policy positions reinforce this point, as a thorough survey of them reveals. Moreover, the history of similar legal initiatives in the uniformed military and elsewhere indicates that United States intelligence agencies will likely instantiate changes beyond even what the executive and courts require. Finally, the paper will conclude by suggesting that we view these changes – and the legal revolution they promise – skeptically. Intelligence has always operated apart from the law. If we bring intelligence operations within the law, they may no longer be able to protect us from what lurks without.

Beth A. Simmons (Harvard Univ. – Government) has posted Civil Rights in International Law: Compliance with Aspects of the ‘International Bill of Rights’ (Indiana Journal of Global Legal Studies, Vol. 16, no. 2, pp. 437-481, July 2009). Here’s the abstract:

International law has developed what many might consider a constitutional understanding of individual civil rights that individuals can claim vis-a-vis their own governments. This paper discusses the development of aspects of international law relating to civil rights, and argues that if this body of law is meaningful we should see evidence of links between acceptance of international legal obligation and domestic practices. Recognizing that external forms of enforcement of civil rights is unlikely (because not generally in the interest of potential “enforcers”), I argue that international civil rights treaties will have their greatest effect where stakeholders – local citizens – have the motive and the means to demand treaty compliance. This is most likely to be the case not in stable autocracies, where such demands are likely to be crushed, nor in stable democracies, where the motive to mobilize is attenuated due to rights saturation, but in transitional countries where the expected value of mobilization is maximized.

Thus, I test the hypothesis that the International Covenant on Civil and Political Rights is likely to have its greatest positive effects in transitional countries – those that have had some fleeting experience with democratic governance. This proposition is tested quantitatively with indicators for freedom of religious practice and fair trials. The proposition is weakly supported by extremely stringent statistical models that control for the endogeneity of the treaty commitments, country and year fixed effects, and other obvious influences on civil rights practices. I conclude that the International Bill of Rights has the power to influence the direction of rights practices in fluid political situations, but cannot magically transform autocracies into liberal guarantors of civil liberties. Still, these effects are important, and the most we can expect from scraps of paper which the international community has been reluctant to enforce.

Ralph Wilde (University College London – Faculty of Laws) has posted Complementing Occupation Law? Selective Judicial Treatment of the Suitability of Human Rights Norms (Israel Law Review, Vol. 42(1), pp. 80-100, 2009) on SSRN. Here is the abstract:

    This Article offers a critical evaluation of the treatment of the suitability of applying human rights law to occupation situations offered by the English House of Lords in the Al-Skeini judgment of 2007. Al-Skeini concerned the application of the European Convention on Human Rights (ECHR) to the United Kingdom in Iraq. In the decision, the majority asserted that the application of human rights law would amount to a form of “imperialism” in requiring an occupying State to impose culturally inappropriate norms in occupied territory. They also found that its application would undermine the status quo norm contained in
    occupation law, by obliging an occupying State to transform the legal system in occupied territory in order to bring it in line with the human rights standards in play. This Article argues that these two assertions are based on a mistaken understanding of the substantive meaning of human rights obligations in occupation situations, and the effect on this meaning of the interface with other areas of international law. It is suggested that the fear of “human rights imperialism” is, as articulated here, misconceived; that applying human rights law to occupation situations may not actually involve breaching the law of occupation; and that in any case a more sophisticated approach to the question of clashes in normative regimes needs to be adopted.

Geoffrey S. Corn (South Texas College of Law) has posted Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict (Journal of International Humanitarian Legal Studies, forthcoming). Here’s the abstract:

One of the most complex contemporary debates related to the regulation of armed conflict is the relationship between international humanitarian law (or the law of armed conflict) and international human rights law. Since human rights experts first began advocating for the complimentary application of these two bodies of law, there has been a steady march of human rights application into an area formerly subject to the exclusive law of armed conflict regulation. While the legal aspects of this debate are both complex and fascinating, like all areas of conflict regulation the outcome must ultimately produce guidelines that can be translated into an effective operational framework for war-fighters. In an era of an already complex and often confused battle space, there can be little tolerance for adding complexity and confusion to the rules that war-fighters must apply in the execution of their missions. Instead, clarity is essential to aid them in navigating this complexity.

This article will explore this debate from a military operational perspective. It asserts the invalidity of extreme views in this complementarity debate, and that the inevitable invocation of human rights obligations in the context of armed conflict necessitates a careful assessment of where symmetry between these two sources of law is operationally logical and where that logic dissipates. While acknowledging a legitimate role for human rights norms in relation to the treatment of noncombatants and subdued opposition personnel, I argue that these norms cannot be permitted to influence the legal framework that regulates the application of combat power against operational opponents. Preventing this intrusion is essential to balance the interest of protecting human rights with the fundamental purpose of armed hostilities – securing the prompt and efficient submission of an opponent. Perhaps the most critical premise of this article is that failing to recognize the existence of this boundary will produce a distortion of this historic authority/restraint balance at the core of the law of armed conflict – a distortion that will inevitably be perceived as operationally illogical by armed forces thereby risking the credibility of both bodies of law.

Matthew C. Waxman (Columbia Law School) has posted The Use of Force Against States that ‘Might’ Have Weapons of Mass Destruction (Michigan Journal of International Law, Vol. 31, No. 1, 2009) on SSRN. Here is the abstract:

    The Iraq war rekindled debate – a debate now further inflamed in discussions of Iran and North Korea – about the legal use of force to disarm an adversary state believed to pose a threat of catastrophic attack, including with weapons of mass destruction (WMD). Collidingwith this debate is the stark fact that intelligence about hostile states’ WMD capabilities is and will remain limited and uncertain. This Article examines the following question: How should international legal rules on the use of force handle this intelligence gap? In answering that question, this Article advances two arguments. First, it argues that amid such intelligence uncertainty, a “reasonable necessity” approach to international self-defense doctrine, based on objective standards, is superior to the two main competing schools of thought: the “traditional view,” which holds strictly that only the U.N. Security Council may authorize legal force against WMD proliferates absent an imminent and specific threat of attack, and the “unilateralist” school, which holds that states retain a broader right of preemptive self-defense. Second, it argues that a reasonable necessity approach – and its reliance on objective standards – helps focus analysis on key evidentiary issues that have so far eluded serious study in scholarship on the legal use of force and that are relevant to ongoing debates about alleged WMD proliferation by Iran, North Korea and other states.

Curtis A. Bradley and Jack Landman Goldsmith III (Duke University – School of Law and Harvard University – Harvard Law School) have posted Foreign Sovereign Immunity and Domestic Officer Suits on SSRN. Here is the abstract:

    Under international law, official-capacity suits brought against a foreign state’s officers are treated as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses. This immunity regime differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the
    federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. This essay attempts to explain why the immunity rules differ between the two regimes. We begin by showing that the differential treatment of foreign and domestic officer suits has deep roots in British and American common law. We then show that Congress has not acted to alter this common law backdrop, and we explain the significance of this fact. Finally, we discuss functional reasons for the long-time differential treatment of suits against domestic and foreign officials.

Matthew C. Waxman (Columbia Law School) has posted Guantánamo, Habeas Corpus, and Standards of Proof: Viewing the Law Through Multiple Lenses (Case Western Reserve Journal of International Law, Forthcoming) on SSRN. Here is the abstract:

    The Supreme Court held in Boumediene v. Bush that Guantánamo detainees have a constitutional right to habeas corpus review of their detention, but it left to district courts in the first instance responsibility for working through the appropriate standard of proof and related evidentiary principles imposed on the government to justify continued detention. This article argues that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about competing risks and their distribution. How one approaches these questions depends on the lens through which one views the problem: Through that of a courtroom
    concerned with evidence or through that of a battlefield clouded by imperfect intelligence. All three branches of government should play significant roles in answering these questions, which are critical to
    establishing sound detention policy.

Yuval Shany (Hebrew University of Jerusalem – Faculty of Law and Institute of Criminology) has posted Human Rights and Humanitarian Law As Competing Legal Paradigms for Fighting Terror (COLLECTED COURSES OF THE ACADEMY OF EUROPEAN LAW, HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW, VOL. XIX/1, Orna Ben Naftali, ed., Forthcoming) on SSRN. Here is the abstract:

    In a recent article on the interplay between international law and politics, Marti Koskenniemi wrote that “much about the search for political direction today takes the form of jurisdictional conflict, struggle between competing expert vocabularies, each equipped with a specific bias” and that “[p]olitical intervention is today often a politics of re-definition, that is to say, the strategic definition of a situation or a problem by reference to a technical idiom so as to open the door for applying the expertise related to that idiom, together with the attendant structural bias.” The “war on terror” in the first decade of the Twenty First Century exemplifies such political struggles over the governing legal paradigm. Not only is the meaning of the term “terrorist” itself controversial; the legal framework governing the fight against terrorism is also highly contested, and features an intense struggle between a human rights centered “law enforcement” paradigm and a more aggressive humanitarian law based “armed conflict” paradigm. Describing the paradigm struggle in Koskenniemic terms not only reveals, once again, the potential for the strategic use of the law; it also exposes the meta-differences between human rights law and humanitarian law. The considerable political capital and legal efforts invested in jockeying between the two competing paradigms casts doubt on the increasingly common narrative of the growing merger between human rights law and humanitarian law and the irrelevance of distinguishing between the two. Moreover, it is now clearer than before that the ideological tensions between the two camps supporting the competing paradigms cannot be avoided even if a mixed paradigm were to be developed to govern the fight against terror (as is increasingly alleged). Such a development may simply lead to the channeling of the same ideological struggles that had been held over the choice of paradigm to disagreement on the contents and direction of the new mixed paradigm.

    In Part One of this Chapter, I describe the jurisdictional struggle between the two principal legal paradigms that purport to regulate the international fight against terror: The law enforcement and the armed conflict paradigms. Arguably, many disagreements concerning the lawfulness of specific counter-terrorism, such as targeted killings or detention without trial, are actually disagreements on the applicable legal framework and the stories on the nature of the threat of terrorism that is being offered.

    In Part Two, I consider the emergence of a mixed paradigm which borrows contents from both human rights law and humanitarian law. I argue that such normative cross-over illustrates the difficulty of maintaining rigid paradigmatic distinctions in light of the complexities of the fight against terror; but also that some key differences in emphasis between the two paradigms nonetheless remain. Most significantly, I argue that the development of a new mixed paradigm merely re-contextualizes preexisting jurisdictional struggles over the proper legal framework to govern the fight against terror. Part Three concludes.

Craig Forcese, “Canada’s National Security “Complex”: Assessing the Secrecy Rule,” (2009) 15(5) IRPP Choices 1.

The ABA Standing Committee on Law and National Security has released a special double issue of the ABA National Security Law Report, which includes articles on the Detention Policy Task Force’s Preliminary Report and the NDAA Amendments to the Military Commissions Act and covert action, along with book reviews and remarks from Jeh Johnson, General Counsel for the Department of Defense.

John T. Parry (Lewis & Clark Law School) has posted International Extradition, the Rule of Non-Inquiry, and the Problem of Sovereignty. Here’s the abstract:

The law of international extradition in the United States rests on a series of myths that have hardened into doctrine. Perhaps the most significant is the frequent claim that by its nature, extradition is “an executive function, rather than a judicial one.” This claim, in turn, supports additional rules, such as the “rule of non-inquiry,” under which courts hearing extradition cases may not inquire into the procedures or treatment, including possible physical abuse, that await the extraditee in the requesting state. In its 2008 decision in Munaf v. Geren, for example, the Supreme Court applied this rule to the transfer of two U.S. citizens from U.S. military custody to Iraqi custody for trial in Iraqi courts. In response to their claim that they were likely to be tortured in Iraqi custody, the Court stated that “it is for the political branches, not the judiciary, to assess practices in foreign countries and to determine national policy in light of those assessments.”

This article uses the rule of non-inquiry to assess the current state of extradition law and the theories that support it. I focus first on the doctrinal status of the rule, with the goal of demonstrating that it is more flexible than courts often purport to believe and that a more explicitly functional approach would better serve the issues that the non-inquiry doctrine encompasses and implicates. Throughout my doctrinal discussion, I also consider the proper scope of habeas corpusreview of extradition decisions.

This article also has broader ambitions. First, my discussion of non-inquiry and the scope of habeas review seeks to historicize these doctrines. Second, I argue for unfreezing extradition law and putting it back into the overall structure of federal law and the current of legal change. Third, my suggestions for the rule of non-inquiry also work within and seek to incorporate some of the many changes in international law that have taken place since the rule was first announced. Fourth, I contest the notion that foreign affairs concerns require courts to refuse to inquire into constitutional or human rights claims.

Finally, I explore the rule of non-inquiry’s reliance on a traditional notion of national, territorial sovereignty. Some writers have pointed to the Supreme Court’s decision in Boumediene v. Bush as an example of changing conceptions of sovereignty. By contrast, the Munaf majority repeatedly stressed and relied upon Iraq’s “sovereign right” or “prerogative” to punish offenses “committed on its soil.” Thus, on the same day in June 2008, the Supreme Court declared both that sovereignty has changed, and that it remains the same. This article asks whether Munaf’s conception of sovereignty was already outdated or whether it gives the lie to claims that sovereignty has eroded. I also consider a third option, that both conceptions can exist and be consistent with each other in U.S. law, and the article ends by exploring what that coexistence might mean.

EU implementation of the UN restrictive measures against al Qaeda

On 22 December 2009 the Council adopted a Council Regulation amending Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban.

Following the judgment of the ECJ in the Kadi case on 3 September 2008, the Regulation had to be amended to provide for a listing procedure ensuring that the fundamental rights of defence are respected. The revised procedure includes providing to the listed person, entity, body or group the reasons for listing as transmitted by the UN Al Qaida and Taliban Sanctions Committee, in order to give the party concerned an opportunity to express their views on those reasons.

If observations are submitted, the Commission should review its decision considering the important political responsibilities involved and the sensitive nature of the international efforts in countering terrorism.

The press release by the Council highlights that

“the amended Regulation (EC) No 881/2002 respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union and notably the right to an effective remedy and to a fair trial, the right to property and the right to the protection of personal data.”

US removes Vinck and Barakaat international from domestic terrorist list, but not Kadi and Sayadi

The U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) removed Patricia Rosa Vinck, Barakaat International, and Barakaat International Foundation from its Specially Designated Nationals List on November 3, having found that Vinck and the two entities no longer present a significant threat of supporting terrorism.  Today’s action was taken in conjunction with a removal of the three names from the United Nations’ 1267 Sanctions Committee (U.N. 1267 Committee) Consolidated List of individuals and entities subject to U.N. sanctions measures.

Academic articles of interest

Amos N.Guiora – Religious Extremism: A Fundamental Danger
Nikos Lavranos – Judicial Review of UN Sanctions by the European Court of Justice
Devika Hovell – A House of Kadis? Recent Challenges to the UN Sanctions Regime and the Continuing Response to the ECJ Decision in Kadi
Liza Goitein – Preventive Detention in a Different Kind of War
NISS – Homeland Insecurity: Datamining, Terrorism Detection and Confidentiality
IRCT – Background paper – Independent monitoring of human rights in places of detention
IRCT – Report – Independent monitoring of human rights in places of detention + Appendix
Curtis Bradley – The United States, Israel, and Unlawful Combatants

CFI follows Kadi in Othman v Council and Commission (Case T-318/01)

Othman, better known as Abu Qatada, has been designated by the Sanctions Committee of the Security Council of the United Nations as being associated with Usama bin Laden, Al-Qaeda or the Taliban. his name was added to the summary list on 19 October 2001, and then included in the list in the Community regulation. He has brought an action for annulment of that regulation, in so far as it concerns him, before the Court of First Instance.

The Court observed that, in Kadi, the Court of Justice annulled the European Council regulation in so far as it froze the funds of the two appellants, on the ground that it had been adopted in breach of their fundamental rights, in particular, rights of defence, the right to effective judicial review and the right to property. The Court noted that both in respect of the procedure leading to the adoption of the contested regulation and in respect of the extent, effects and justification, if any, of the restriction of the use of his right to property arising from that regulation, Mr Othman finds himself in a factual and legal situation in every way comparable to that of Mr Kadi.The Court therefore concluded that the Council adopted the regulation in breach of Mr Othman’s fundamental rights. Consequently, the Court annuled the regulation in so far as it freezes Mr Othman’s funds.

The Court emphasises that, according to the Statute of the Court of Justice, such a decision of the Court of First Instance declaring a regulation to be void takes effect only from the date of expiry of the period in which an appeal may be brought before the Court of Justice, that is to say, two months and ten days from notification of the judgment or, if an appeal has been brought within that period, as from the date of dismissal of the appeal.

The Court of First Instance considered that the Council will therefore have ample time in which to remedy the infringements found by adopting, if appropriate, a new restrictive measure directed against Mr Othman, without it being necessary to maintain in force the effects of the regulation beyond that period.

Read the judgment here.

Council of Europe Commitee on Legal Affairs and Human Rights calls on Obama to hold perpetrators of torture accountable

Read the working document by Mrs. Herta Däubler-Gmelin for the Council of Europe’s Committee on Legal Affairs and Human Rights, entitled: The state of human rights in Europe: the need to eradicate impunity here.

In passing she says the following on the release of the torture memo’s:

I should like to commend the new US President for making these documents public and pledging that such actions shall not be repeated. But I regret that President Obama has at the same time promised to shield the perpetrators of such acts of torture from being held to account. Whilst transparency is a necessary condition to eradicate impunity, the disclosed information must also be acted upon in order to hold to account the direct perpetrators as well as those who ordered and organised the violations. At the latest since the Nuremberg and Tokyo trials in the wake of the Second World War, it has been internationally established that unlawful orders do not exonerate those who execute them.

The European Court of Human Rights (the Court) has upheld this position vis-à-vis those who ordered and those who executed the killings of refugees trying to leave the former GDR at the Berlin Wall. Similarly, two successive jury verdicts acquitting a Russian special forces captain for executing a group of Chechen schoolteachers for having allegedly acted upon the order of a superior officer were rightly set aside upon appeal by the prosecution by the Supreme Court of the Russian Federation. The same reasoning applies in my view to those who carried out acts of torture in the “war on terror” and those who formulated and approved the instructions permitting these despicable acts.

The Rapporteur also applauds the Kadi decision:

62. Recent judgments of the European Court of Justice in Luxembourg seem to indicate that there is a growing awareness for the need to hold international actors to account in the same way as national ones, for the sake of protecting individuals who might otherwise find themselves devoid of all legal remedies, a development which Mr Dick Marty has warmly welcomed in his report on UN Security Council and EU antiterror blacklists.

Scholarship: EU Law, International Law and Economic Sanctions Against Terrorism after Kadi

A new paper on Kadi was posted at SSRN:

EU Law, International Law and Economic Sanctions Against Terrorism: The Judiciary in Distress?

P. Takis Tridimas
Queen Mary University of London, School of Law

Jose A. Gutierrez-Fons
Queen Mary University of London, School of Law

Fordham International Law Journal, Forthcoming
Queen Mary School of Law Legal Studies Research Paper No. 11/2009

This article seeks to examine the relationship between European Union law, international law, and the protection of fundamental rights in the light of recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals. On 3 September 2008, the ECJ delivered its long-awaited judgment in Kadi and Al Barakaat on appeal from the CFI. In its judgment under appeal, the CFI had held that the European Community (EC) is competent to adopt regulations imposing economic sanctions against private organizations in pursuance of UN Security Council (UNSC) Resolutions seeking to combat terrorism; that although the EC is not bound directly by the UN Charter, it is bound pursuant to the EC Treaty to respect international law and give effect to UNSC; and that the CFI has jurisdiction to examine the compatibility of EC regulations implementing UNSC resolutions with fundamental rights not as protected by the EC but as protected by jus cogens. On appeal, following the Opinion of Maduro AG, the ECJ rejected the CFI’s approach. It held that UNSC resolutions are binding only in international law. It subjected the contested regulations to full review under EC human rights standards and found them in breach of the right to a hearing, the right to judicial protection and the right to property. Kadi and Al Barakaat is the most important judgment ever delivered by the ECJ on the relationship between EC and international law and one of its most important judgments on fundamental rights. It is imbued by constitutional confidence, commitment to the rule of law but also some skepticism towards international law. In the meantime, the CFI has delivered a number of other judgments on anti-terrorist sanctions assessing the limits of the “emergency constitution” at European level. The purpose of this paper is to examine the above case law and explore the dilemmas and tensions facing the EU judiciary in seeking to define and protect the EU’s distinct constitutional space. It is divided as follows. It first looks at the judgment in Kadi. After a short presentation of the factual and legal background, it explores the question whether the EU has competence to adopt smart sanctions. It then examines whether the EU is bound by resolutions of the Security Council, whether the ECJ has jurisdiction to review Community measures implementing such resolutions and the applicable standard of judicial scrutiny. It analyzes the contrasting views of the CFI, the Advocate General, and the ECJ taking account also of the case law of the European Court of Human Rights (ECtHR). Further, it explores the consequences of annulling the contested regulation. It then turns to discussing CFI case law in relation to sanctions lists drawn up not by the UN Security Council but by the EC. The paper concludes by welcoming the judgment of the ECJ. Whilst its reasoning on the issue of Community competence is questionable, once such competence is established, it is difficult to support the abrogation of Community standards for the protection of fundamental rights. Such standards should ensure procedural due process whilst recognizing the importance of public security.

European Commission proposals in response to Kadi

The European Commission has presented its eagerly anticipated proposal to amend the EC Regulation No 881/2002 implementing the UN ‘terrorist list’ in response to the ECJ’s Kadi and Al-Barakaat ruling of September 2008. COM(2009) 187 final summarizes the new procedure to the Council as follows:

Upon notification by the UN Sanctions Committee of a new listing decision and the statement of reasons, the Commission will take a provisional decision to freeze the funds and economic resources of the individual or entity concerned;

In parallel the Commission will send the statement of reasons to the individual or entity concerned without delay, in order to give him, her or it an opportunity to express his, her or its views;

The Commission will examine the views that have been expressed and consult an advisory committee of experts of the Member States before taking the final decision.

In order to ensure that fundamental rights are respected, it is also necessary to address the position of individuals and entities already listed. UN Security Council Resolution 1822 of 30 June 2008 foresees a review of all names included in the UN list on 30 June 2008. This UN review should be completed by 30 June 2010.

Given the subject-matter the United Nations or a third State may deem it necessary to provide classified information to the Community Institution in support of the decision made. A provision is proposed to provide clarity on the handling of such information.

A provision is also needed to provide clarity on the applicable rules for processing of personal data of listed individuals, and in particular for processing of data relating to offences, criminal convictions or security measures under this Regulation.

Read the full communication here.