It is my pleasure to introduce a guest post by my colleague here at SIM, dr Stephan Hollenberg, on the recent case of
Al-Dulimi and Montana Management Inc v Switzerland, which focuses on UN sanctions. Stephan defended his PhD last year on judicial protection of human rights against decisions of the United Nations Security Council (UNSC). Here are his comments on the case:
Al-Dulimi and Montana Management Inc v
Switzerland
Stephan Hollenberg
Introduction
Mr Al-Dulimi
allegedly was the finance manager for the Iraqi secret services under Saddam
Hussein. His assets and of a company of which he was managing director have
been frozen following a Security Council resolution imposing sanction
measures against the ancient regime
of Iraq, as implemented against him by Switzerland. Under this sanctions
regime his assets not only had to be frozen but also confiscated and transferred
to the Development Fund for Iraq.
In response,
Mr Al-Dulimi complained before the Swiss Federal Court that he was not informed
of the reasons underlying the decision to impose the sanction measures against
him and he was not afforded any due process guarantees under article 6 ECHR. In
2008 the Swiss Court decided that it was not competent to engage in a judicial
review of the implementation of the UNSC decision. Any decision on de-listing
could according to the Swiss Court only be made by the relevant UNSC Sanctions
Committee. Hereupon Mr Al-Dulimi filed a compaint with the ECtHR, among others,
claiming a violation of his right to access to court.
The case
raises the issue of precedence of obligations created by the UNSC over those
under the ECHR, which the Court was confronted with earlier in the cases of Al-Jedda and Nada. Especially, the Nada
case, concerning an individual directly targeted by UNSC sanctions against
alleged financers of international terrorism, bears essential similarities to
the present case. In the Nada case the
Grand Chamber considered Switzerland
to have violated Mr Nada’s rights to private and family life and his right to
an effective remedy, by implementing too strictly the travel ban imposed by the
UNSC, and by not affording him any possibility for review.
Presumption of Compliance
In the
cases of Al-Jedda and Nada the Court developed and employed the
interpretative technique of presumption of compliance. In those cases the Court
established that in addition to maintaining international peace and security,
the purposes of the UN include encouraging respect for human rights and
fundamental freedoms as well. From this it derived that there must be a
presumption that the UNSC does not intend states to take measures that would
result in a breach of their obligations under international human rights law.
Hence the Court determined that when the meaning of a particular provision of a
UNSC resolution is unclear, the interpretation that harmonizes the obligation
created by the UNSC most with the states’ obligations under international human
rights law must be followed. It added that the presumption could be rebutted
when the UNSC uses clear and explicit language to that effect. It did however
not indicate explicitly what the consequences of such rebuttal would be. Even
in the Nada case, in which it found a
rebuttal of the presumption, it did not consider what the consequences thereof
would be.
It was to
be expected that the Court would employ this same interpretative technique in
regard to the interferences with Mr Al-Dulimi’s human rights following from Switzerland’s
implementation of the impugned UNSC resolution. However, the Court (Second
Section) distinguished the Al-Dulimi from
the Nada case, on the basis of a
perceived difference in scope of discretion left by the UNSC for the
implementation of the measures imposed by the relevant UNSC resolution. Subsequently,
it employed the familiar concept of equivalent protection, which it developed
in the context of obligations created by the EU (see Bosphorus).
There are
two problems with this approach. First, the scope of discretion left by the UNSC
resolutions concerned in Al-Dulimi
and Nada appears to be the same.
Second, in regard to instances in which no scope of discretion is left by the
UNSC the presumption of compliance would appear a more appropriate approach to
follow than that of equivalent protection.
Scope of Discretion
For UNSC
resolutions to become effective they need to be implemented by UN member states
in their respective domestic legal orders. The UNSC usually formulates a
certain aim or result that needs to be achieved, it is then for states
themselves to determine how best to do that. Therefrom emanates a scope of
discretion. However, in regard to the targeted sanctions regimes it can hardly
be maintained that there is any scope of discretion for states. The obligation
to freeze assets is phrased by the UNSC as an obligation of conduct, leaving
hardly any scope of discretion for states to implement these measures as they
deem fit. They have no other possibility but to freeze the assets of the
individuals designated by the relevant UNSC sanctions committee. Moreover, this
conduct (and result) may be interfered with if states would provide an
opportunity for fair trial or an effective remedy to the individuals concerned.
Therefore, despite the fact that the relevant resolutions remain silent on
possibilities to afford due process guarantees while implementing these
sanction measures, it must be assessed as falling outside the states’ scope of
discretion. Thus providing such guarantees would go against the obligation
created by these resolutions.
However, the
Grand Chamber accepted in Nada that
the UNSC had left states a certain scope of discretion. Similarly, the Court of
Justice of the EU had held earlier in the Kadi
case that such discretion existed in relation to the implementation of the
targeted sanctions. These courts arrived at this conclusion by arguing that the
UN Charter does not prescribe how states should implement UNSC resolutions,
rather than looking at the text of the relevant resolution. These courts’
approach is not very compelling because if the UNSC would impose a clearly circumscribed
obligation of conduct, then any scope of discretion that might emanate from the
fact that the UN Charter does not prescribe how to implement that obligation is
illusory. States can then do no other but to engage in the conduct prescribed.
Moreover, following these courts’ reasoning every UNSC resolution would leave
states a scope of discretion. However, in the present instance of the Al-Dulimi case, the Court accepted that
the UNSC left no such scope. On the basis of this finding it distinguished it from the
Nada case (see paragraph 117). It did
not further clarify how it arrived at that determination. It only considered
that such a difference exists.
As was
mentioned, this difference cannot be arrived at by relying on the argument of
the UN Charter not prescribing how to implement, because that is exactly the
same in both situations. However, also when comparing the two provisions
concerned in the relevant UNSC resolutions a distinction is not immediately
obvious. Especially when the limitation of the right to a fair trial in the
present instance is compared to the limitation of Mr Nada’s enjoyment of his
right to an effective remedy, it becomes clear that the relevant provisions are
significantly similar. Both resolutions decide merely that states should take
the measures prescribed against the individuals designated by the relevant UNSC
Sanctions Committee. They do not explicitly address the issue of a fair trial
or an effective remedy, but it is implied in the system of the centralized
sanctions regime that such due process guarantees were not foreseen by the
UNSC. Providing such guarantees at a domestic level would automatically impair
the effectiveness of the centralized sanctions regime. It might result in a
fragmented application of the sanction measures. Accordingly, there appears to
be no difference in the scope of discretion left by the UNSC in regard to the
two different sanction regimes.
The UNSC
resolution relevant to Mr Al-Dulimi does mention that ‘claims made by private individuals
or non-government entities on [funds transferred to the Development Fund for
Iraq] may be presented to the internationally recognized, representative
government of Iraq.’ This might suggest that Mr Al-Dulimi’s only remedy
foreseen by the UNSC is via the Iraqi government, and therewith a contrario excluding other
possibilities. But the context of this provision indicates that it must be concerned
with the claims of others than the targeted individual. Moreover, the Court
does not consider this aspect of the provision at all.
Equivalent Protection
After
having distinguished Al-Dulimi from Nada, the Court engaged in an equivalent
protection test. This test entails that if the Court is asked to review a
state’s conduct that was strictly required by that state’s membership of an
international organization, it presumes that the state did not act in
contravention of the ECHR if the international organization in question
protects human rights in a manner that is at least equivalent to the protection
offered by the Convention. If a presumption of equivalent protection is then established
this can only be rebutted when in a particular instance the protection was
manifestly deficient. The Court employed and developed this test primarily in
the context of the relationship between the ECHR and the EU.
Applying
this test similarly in regard to the UNSC is highly remarkable. Especially,
since the Court appears to have gone through a lot of effort in earlier cases
in order to avoid applying it in that context, due to the special task and
position of the UNSC (see the cases of Behrami;
Beric; Kanlinic and Bilbija; Galic;
and Blagojevic). In addition, it is
hardly conceivable that an organization such as the UN would ever be able to
provide a measure of equivalent protection to individuals directly affected by
a UNSC resolution.
Also,
logically speaking it does not make sense to assess a situation concerning a
UNSC decision that does not leave a scope of discretion within the context of
the equivalent protection rather than consider it to be a rebuttal of the
presumption of compliance. In this regard, the Court appears to make a
distinction between latitude for interpretation following from ambiguous
language and the scope of discretion. Such distinction is however difficult to
maintain. Scope of discretion and room for interpretation are closely
intertwined. Scope of discretion often emanates from what a resolution is
silent about.
Moreover,
if the presumption of compliance would only be employed in cases where there is
a scope of discretion then the Court would assess a respondent state’s conduct
that is not necessarily required by the UNSC. That state had an opportunity to
implement the UNSC decision differently within the latitude left by the scope
of discretion. Hence there is no conflict of norms. Therefore it cannot be
maintained that the respondent state was under an obligation to give precedence
to an obligation created by the UNSC over obligations under other international
agreements, pursuant to article 103 of the UN Charter. Consequently, a rebuttal of
a presumption by employing clear and explicit language would not be relevant,
because the respondent state could have acted otherwise within the scope of
discretion.
Actually,
this appears to be the result in the Nada
case in which the presumption of compliance was rebutted but in which the Court
also found a certain latitude for Switzerland to implement the sanctions in
accordance with the ECHR. But this would mean that the whole doctrine of
presumption of compliance (or at least the option for its rebuttal) loses its
meaning. The UNSC will then never be able to override states’ obligations under
the ECHR. That is a position one could defend, but perhaps it would be better
if that would be phrased in clear and explicit language.
Violation of Article 6
Whatever
could be said of that, the Court concluded that no presumption of equivalent
protection could be established and that therefore it had to fully scrutinize
the lawfulness of the interference with the applicant’s right to a fair trial - just
like the Grand Chamber did in regard to article 13 in the Nada case. In that sense, the present decision could also be seen
as making explicit what remained unmentioned in the Nada case. There the Court did not explicitly apply the equivalent
protection doctrine but did establish that the protection afforded at the UN
level was not considered to be sufficient. That is to say, the Grand Chamber
followed the Swiss Federal Court’s evaluation of such protection it made five
years earlier. That was before all the recent amendments were made to the
de-listing procedure, such as the institution of the Ombudsperson in 2009. In
that sense, the Court’s Chamber in the Al-Dulimi
case went a bit further and relied on a recent rapport by UN’s Special Rapporteur
on the promotion and protection of human rights while countering terrorism (Ben
Emmerson) in holding that the present Ombudsperson procedure does not afford
sufficient guarantees. Therefrom it deduced that the mere Focal Point presently
available to Mr Al-Dulimi, which obviously affords a lower level of protection
than the Ombudsperson, can a fortfiori
never provide sufficient guarantees.
It has to
be noted, however, that with regard to the possibility to ensure the
individuals’ right to a fair trial there is an important difference between the
targeted sanctions against people such as Mr Kadi and Mr Nada and those against
Mr Al-Dulimi. The first two are anonymous individuals allegedly involved in
financially supporting international terrorism. Such allegations can often only
be substantiated by relying on confidential material, gathered by national
intelligence agencies, which is not likely to be shared with the targeted
individual or with foreign courts. In contrast, the question whether Mr
Al-Dulimi was indeed the finance manager for the Iraqi secret services under
Sadam Hussein is in principle publicly available information. In a cable, made
public by Wikileaks, the US State Department, which already in 2008 foresaw
this decision by the ECtHR, asked for additional information on the allegations
against Mr Al-Dulimi. The cable notes that ‘Al-Dulimi denies he was ever a
member of the Baath Party, and further denies he was "a director of investments
for the Iraqi Intelligence Service" under Saddam Hussein.’ Therefore the
US Embassy in Baghdad was instructed to ask the Iraqis whether they could
provide further information about what Al-Dulimi did for the Saddam Hussein
regime. According to the Iraqis it was public information that Mr Al-Dulimi
held that position and that he was one of the senior officials of the former
Iraqi regime. This statement might not be sufficient, but perhaps some official
documents might do. At least this makes it easier to organize a fair trial for
people such as Mr Al-Dulimi than for those such as Mr Kadi and Mr Nada. An example
thereof can be found in the recent decision of EU’s General Court in the case
of Makhlouf, concerning sanction
measures against members of the Syrian regime.
Conclusion
The
decision by the Second Section of the ECtHR is another example after decisions
by the Grand Chamber (Nada) and the Court
of Justice of the EU (Kadi) that the
European judiciary is not going to back down and is seeking full confrontation
with the Security Council. This obviously is putting member states in a very
difficult situation. They are under two conflicting international obligations,
which are very difficult to harmonize. This confrontational approach might
eventually result in better protection at the UN level. The UNSC, seeing its
efficacy and efficiency of action undermined by substantial annulments of
domestic implementations, might be willing to adjust its measures to the requirements
upheld by these courts. However, for such approach to be effective these courts
need to maintain a dialogue with the Security Council. In that regard, the
Second Section’s use of the equivalent protection doctrine in the Al-Dulimi case, which might indicate that
it is willing to engage in such dialogue, is to be preferred over the Court of
Justice’s decision in its latest Kadi
case, in which it largely ignored the progress being made at the UN level. The
difficulty, however, remains that equivalent protection at UN level is very
unlikely ever to be achieved in regard to individuals directly affected by a
Security Council decision. A mere possibility for review would probably not be
sufficient, also substantive human rights guarantees would have to be in place.
This will be very difficult to realize in the primarily inter-governmental
setting of the UN.
