1. Introduction
The latest decision of the European Court of Justice in the Kadi II case took the conflict between the effective implementation of the UN Security Council's targeted sanctions, and the protection of individuals’ human rights, to another level.Footnote 1 The standard for judicial protection required by the Court of Justice is practically unattainable within the current targeted sanctions regime.Footnote 2 Consequently, the conflict between various norms of international, EU and domestic law again stands in sharp relief.Footnote 3 On the one hand, there is the obligation under the UN Charter that member states must carry out the decisions of the Security Council.Footnote 4 This prevails over other obligations these states may have under any other international agreement.Footnote 5 On the other hand, international human rights law requires states to guarantee to individuals their due process rights.Footnote 6 However, due to the rule of precedence, obligations under international human rights treaties may be set aside by obligations created by the Security Council.Footnote 7 Still, the same does not hold for obligations under domestic law, and at least from the perspective of the EU judiciary; nor does it hold for obligations within the EU legal order.Footnote 8
Moreover, by separating the domestic implementation of a sanction measure from its underlying international origin (a Security Council resolution), courts may engage in a review of that implementation against domestic, EU, and even international human rights law.Footnote 9 Thereby these courts circumvent the application of the rule of precedence of obligations under the UN Charter in international law.Footnote 10 Through this approach, several courts have repeatedly annulled domestic implementations of targeted sanctions against particular individuals.Footnote 11 Since the sanction measures imposed by the Security Council become operative only through domestic implementation, widespread annulment by domestic courts will seriously impede the effectiveness of these measures.Footnote 12
From a due process perspective, the core issue with the targeted sanctions regime is that there is no judicial (or at least sufficiently independent) reviewing mechanism at the UN level, through which a targeted individual can obtain an effective remedy.Footnote 13 In addition, the effect of remedies afforded by domestic courts through the annulment of domestic implementing measures remains limited to the legal order concerned. These courts cannot remove any individual from the UN sanctions list. Nor can they engage in a judicial review of the decision to put an individual on that list. This is in large part due to the lack of access to sufficient relevant information underlying the designations of individuals. The same deficiency also results in these courts left unable to guard the fairness of the proceedings.
The persistent lack of sufficient access to confidential material relied upon for the designation of targeted individuals constitutes the very essence of the due process problem. It will continue to bar the procedural fairness of the targeted sanctions regime. This issue cannot be remedied within the present top-down structure.Footnote 14 Therefore, the present article proposes to decentralize the designation procedure in order to mitigate this problem. Such an amendment would entail that designation of individuals and the possible subsequent judicial review procedure would take place domestically, prior to the universal blacklisting by the Sanctions Committee. As a consequence, any confidential material relied upon would stay within the designating state and be shared only with courts within that domestic legal order. This would make it more acceptable for the relevant authorities to share such information. As a consequence, domestic courts would be able to engage in a judicial review of the impugned decision, and would not need to resort to merely annulling domestic implementing measures.Footnote 15 Therefore the compliance of states – and thus the effectiveness of sanction measures – would rise, and at the same time judicial protection of the human rights of targeted individuals would increase.Footnote 16
2. Sharing information
The main problem with the designation of individuals for the purpose of the targeted sanctions regime is that the motives and evidence for such a decision remain largely confidential. Most of that information stems from national intelligence agencies that have a legitimate interest in not sharing it with potential terrorists. However, keeping large parts of a case secret from the individual concerned interferes with the principle of effective judicial protection.Footnote 17 Two reasons follow from this principle, which demonstrate why sharing such information is important. First, it is an indispensable prerequisite for the targeted individual to effectively defend himself against the allegations.Footnote 18 Second, it is a necessary requirement for courts to be able to effectively engage in a review of the complaint, and to be able to guarantee the individual a fair trial. For the latter purpose, these courts will need to check whether the individual concerned obtained sufficient information to be able to defend himself, and to ensure that no material was unnecessarily withheld from him on the basis of a claim for confidentiality. Accordingly, under the principle of effective judicial protection, information has to be shared with the individual concerned and the courts involved. These issues will be discussed in subsection 2.1. and subsection 2.2. respectively.
2.1. Providing the individual an opportunity to effectively defend himself
With regard to the information that has to be made available to the individual concerned, a distinction can be made between the reasons for his designation, and the evidence substantiating the allegations against him. The former is currently communicated in the form of a narrative summary of reasons;Footnote 19 the underlying evidence however is often kept entirely secret. First, subsection 2.1.1. will consider the requirements applicable to the statement of reasons. Second, subsection 2.1.2. will examine the way in which secret evidence and other confidential material is presently handled.
2.1.1. Statement of reasons
According to the Court of Justice of the EU (CJEU),Footnote 20 a statement of reasons should be provided with the targeted individual immediately following the initial decision to implement the sanctions against him.Footnote 21 This obligation is imposed upon the relevant EU authorities within the context of the administrative proceedings.Footnote 22 Non-observance of this obligation results in repercussions for subsequent judicial proceedings. This is because a statement of reasons is the sole safeguard that allows a targeted individual to make effective use of the legal remedies available to him.Footnote 23 Such a statement is necessary to enable the individual concerned to determine whether the decision is well founded, or whether he has reason to challenge it. Further, in the latter situation he must be able to defend himself against the allegations. Without knowing the reasons behind the decision to impose sanctions against him, he cannot effectively challenge that decision before a court, because he would not know which allegations to refute. Therefore, he would not be able to effectively enjoy legal protection, which constitutes a violation of his right to an effective legal remedy.Footnote 24
Accordingly, the CJEU has repeatedly held that if the impugned decision is taken, the obligation to provide a targeted individual with a statement of reasons afterwards is a prerequisite for guaranteeing his right to effective judicial protection.Footnote 25 However, the Court of Justice in the Kadi II case considered that not disclosing any further information to the Court and the individual concerned will not as such result in an infringement of the right to effective judicial protection.Footnote 26 The Court only assesses the quality of the motivation underlying the particular allegations, in light of the comments made by the targeted individual.Footnote 27 The motivation needs to identify, individual specific and concrete reasons explaining the decision to impose targeted sanctions on the individual concerned.Footnote 28
While the General Court in first instance of the Kadi II case rejected all the reasons for the decision against Mr. Kadi as being too general and vague,Footnote 29 the Court of Justice on appeal accepted four of the five reasons as being sufficiently detailed and specific.Footnote 30 It only denounced the allegation that Mr. Kadi ‘had been the owner in Albania of several firms which funnelled money to extremists or employed those extremists in positions where they controlled the funds of those firms, up to five of which received working capital from Usama bin Laden’.Footnote 31 It considered this reason insufficiently detailed and specific since it did not specify the identities of the firms and persons concerned, nor when the alleged conduct took place and for which purpose. However, the Court did not dismiss the reason that alleged that Mr. Kadi was ‘one of the major shareholders in the Bosnian bank Depostina Banka in which planning sessions for an attack against a United States facility in Saudi Arabia might have taken place’.Footnote 32 The Court did not comment on the absence of any timeframe in the allegation, but only confirmed that the financial institution and the nature of the alleged terrorist project were properly identified.Footnote 33 Moreover, it did not find the fact that the terrorist project was expressed as a mere possibility incompatible with the duty to state reasons. It held that ‘the reasons for listing … may be based on suspicions of involvement in terrorist activities, without prejudice to the determination of whether those suspicions are justified’.Footnote 34
The Court of Justice applied a less stringent standard to the statement of reasons than that applied by the General Court.Footnote 35 However, the Court of Justice explicitly took as its point of departure that it is for the authorities ‘to establish, in the event of a challenge, that the reasons relied on against the person concerned are well founded’.Footnote 36 Therefore, a mere denial by the targeted individual of the allegations against him would be enough to cast into doubt the authorities’ motivation, if they are unable to found those allegations. Apparently the Court of Justice finds it sufficient for the individual to be brought to such a position, that he knows which specific allegations to deny. Indeed, Mr. Kadi's challenge against the allegations mainly consisted of denying that his firms or business partners, as far as he was aware, were involved in (financing) terrorism.Footnote 37 This turned out to be quite an effective defence. The rebuttal by the authorities consisted solely of denying the relevance of Mr. Kadi's unawareness, and then submitting new interpretations of the allegations in light of his denial, supplying no further information in support.Footnote 38
The problem for these authorities is that even if they have the relevant information,Footnote 39 they must take care not to substantiate the allegations with confidential material that might pose a security threat when disclosed to potential terrorists. The following subsection will deal with this dilemma.
2.1.2. Evidence and other confidential information
When targeting individuals allegedly involved in (financing) terrorism, states have a legitimate interest to not disclose to these individuals security sensitive material.Footnote 40 However, refraining from disclosure would severely limit the ability of these individuals to defend themselves against the allegations, since they would have no opportunity to refute the evidence underlying their designation. In addition, non-disclosure is not only against the interest of the individuals concerned, but it also adversely affects the aim of the sanctions regime. As previously discussed, certain courts will for these reasons annul domestic implementations of sanction measures against individuals, either because they are in breach of the right to effective judicial protection or because the designations are based on unsubstantiated allegations. This seriously hampers the effectiveness of the targeted sanctions regime. Accordingly a balance will have to be found between providing for the legitimate security interests of states, and ensuring adversely affected individuals have a sufficient degree of judicial protection.Footnote 41
The European Court of Human Rights (ECtHR) tried to solve the tension between these two competing interests the Chahal case,Footnote 42 to which the Court of Justice of the European Union (CJEU) repeatedly referred in cases concerning targeted sanctions.Footnote 43 In Chahal, which concerned the intended deportation by the UK of an asylum seeker, the ECtHR recognized that, in matters involving national security, domestic authorities could be required to rely on confidential information.Footnote 44 However, the Court added that invoking national security concerns does not absolve authorities from judicial review.Footnote 45 Whatever the circumstances, a minimum level of information should be disclosed in order to guarantee the right of individuals to a fair trial. In addition, the ECtHR demanded that where full disclosure is not possible, this limitation is counterbalanced in such a way that the individual concerned has a possibility to effectively challenge the allegations made against him. The Court suggested that a special advocates procedure could be used to assist in arriving at a fair balance.Footnote 46 Special advocates are security-cleared lawyers who operate in certain categories of cases that involve the use of confidential information, which cannot be communicated to the individual concerned.Footnote 47 They are afforded access to such information and are present at in-camera hearings at the courts engaged in reviewing the case. Through this procedure the advocates can test both the secret material's evidentiary value (the representation function), and the executive's claim for confidentiality (the disclosure function).Footnote 48 They can also cross-examine witnesses and assist the court in testing the strength of the state's case.Footnote 49
In the subsequent A and Others v. United Kingdom case, which concerned the issue of preventive detention, the ECtHR further explained the requirements to be taken into account when drawing a fair balance between a targeted individual's human rights and the need to protect the confidential nature of security sensitive information, as indicated in the Chahal case.Footnote 50 It again acknowledged both interests, but also recognized a core requirement in the right to a fair trial that cannot be derogated from, even in view of legitimate security concerns.Footnote 51 It imposed as a rigid principle that no matter what,Footnote 52 whatever compelling security interest was involved;Footnote 53 the affected individual must always ‘be given sufficient information about the allegations against him to enable him to give effective instructions to the special advocate’.Footnote 54
However, with regard to the domestic implementations of Security Council targeted sanctions; no special advocates procedures are in place. The UK government did not create a statutory power for the use of special advocates in such proceedings,Footnote 55 and likewise no such procedure is available in the European legal order,Footnote 56 or other domestic legal systems.Footnote 57 What should a fair balance entail in this situation? What information should be disseminated to the targeted individual, and are other procedural guarantees available to secure his right to a fair trial?
The ECtHR did not consider whether the required level and type of information that has to be disseminated to the individual concerned is dependent on whether a special advocates procedure is in place. It could be argued that it should, because the Court based the criteria for the dissemination of information on whether the affected individual could, with that information, effectively instruct a special advocate in order to enjoy a fair trial. In the absence of a special advocates procedure, it is to be expected that the individual, who must for his defence then rely entirely on his own knowledge, would need more information to be able to challenge the allegations made against him as effectively.
Still, despite the lack of a special advocates procedure in EU proceedings, the General Court in the Kadi II case relied on the standard for dissemination of information as applied by the ECtHR in the A and Others v. the United Kingdom case, in which such a procedure was available.Footnote 58 The General Court mentioned the existence of special procedures,Footnote 59 but did not consider their relevance in the context of assessing the level of information that had to be disseminated.
In contrast, the Court of Justice in the subsequent appeal of the Kadi II case did not refer at all to the possibility of employing techniques such as a special advocates procedure. It held that a fair balance between the interests involved could entail that the individual concerned is provided only with a summary of the content of the confidential information and evidence.Footnote 60 The Court appeared to consider that it may be the responsibility of the Court itself to compose such a summary on the basis of the information made available to it. Perhaps this indicates that this Court no longer intends to rely on the introduction of a special advocates procedure, but rather seeks to emphasize its own role in safeguarding a fair procedure. This will be further discussed in subsection 2.2.2.
The position of the Court of Justice on what (type of) information has to be shared with the individual concerned deviated from the ECtHR's finding in this regard. The ECtHR required dissemination of sufficiently specific allegations or grounds underlying the impugned decision, but it did not necessarily also require dissemination of the evidence relied upon. The ECtHR even stated that if all of the underlying evidence remains undisclosed, the procedure would still be in accordance with the European Convention on Human Rights (ECHR) if the adversely affected individual is made aware of sufficiently specific allegations on the basis of which he can effectively instruct a special advocate.Footnote 61 The ECtHR did not insist on disclosure of the evidence underlying the allegations against the individual concerned.Footnote 62 The individual is entitled only to the substance of the allegations.Footnote 63 The Court of Justice was more generous in this respect, by considering that it may provide the individual concerned with a summary of the content of the confidential information and evidence, if that would be necessary to safeguard his right to effective judicial protection.Footnote 64 This consideration might have been influenced by the fact that no special advocates procedure is in place in the EU proceedings to counter-balance the limitations posed on the individual's opportunity for defence.
2.2. Disclosure of information to the judiciary
Disclosing information to the judiciary serves two aspects of the principle of effective judicial protection. On the one hand, it enables courts to assess the lawfulness of the decision taken by the authorities that is adversely affecting the targeted individual – this will be discussed in subsection 2.2.1. On the other hand, disclosing sufficient information is necessary for courts to be able to guarantee the fairness of the judicial procedure – which will be considered in subsection 2.2.2.
2.2.1. Assessing the complaint
In the earlier Kadi judgments the CJEU established that it would have to engage in a ‘full’ or ‘strict’ judicial review of the lawfulness of the impugned decision.Footnote 65 This followed, according to the Court, also from the fact that no opportunity for an effective remedy existed at the UN level.Footnote 66 This link between the intensity of the review and the question of whether other remedies were available suggested that the Court might have been willing, in principle, to conduct a mere marginal review as soon as an effective remedy would be available at the UN level.Footnote 67 Such an approach may encourage the development of a remedy. A dialogue may emerge between institutions of different legal orders. Courts may indicate what they expect from an effective remedy for the individual concerned, and in return may signal to the Security Council that they would engage in a mere deferential review when the requirements are met. Indeed, the Security Council amended the delisting procedures in response to unfavourable judicial decisions.Footnote 68
However, since the Court of Justice's latest decision in the Kadi II case it is clear that any potentially emerging dialogue has come to an end, and that it is not very likely that it will ever pay judicial deference to the Security Council in regard to this particular issue. The Court did not even acknowledge the institution of the UN Ombudsperson, and her recently expanded competences.Footnote 69 It confined itself to referring to the ECtHR's findings in the Nada case on the procedure at the UN level, which in turn referred to a Swiss national court's judgment from six years earlier, before all the relevant amendments were made.Footnote 70 Moreover, the Court of Justice demanded that a reviewing procedure at the UN level would meet the requirements of effective judicial protection.Footnote 71 It required nothing less than a fully-fledged court that is able to annul and retroactively erase an individual's designation.Footnote 72 This is a standard unlikely ever to be met by an organization highly intergovernmental in nature such as the UN, especially in the field of Security Council sanction measures.
Not taking note of any potential international implications, the Court of Justice further specified the standard for its strict judicial review. It considered that it has to assess whether the facts invoked by the authorities are materially correct, and what their probative value is, in light of the comments made by the targeted individual.Footnote 73 In addition, the Court held that it also has to evaluate whether at least one of the reasons for listing is sufficiently detailed, specific and substantiated, and constitutes a sufficient basis on which to support the decision to place the individual concerned on the list.Footnote 74 Accordingly, it demanded a full review of the original Sanctions Committee's decision to designate a particular individual.Footnote 75 The UK Supreme Court ruled similarly, in a case that also concerned the implementation of targeted sanctions. It held that the right to an effective remedy requires that a targeted individual must have a means of subjecting the actual designation by the UN Sanctions Committee, which underlies the domestic implementation of the sanctions, to judicial review.Footnote 76
Therefore these courts must be furnished with all the material that they will need to carry out such a review.Footnote 77 This leaves the relevant authority very little possibility not to share any of the essential information with the judiciary, including the evidence underlying the imposition of the sanctions.Footnote 78 While the Court of Justice considered that not all information had to be made available if the authorities would not be able to meet such a requirement,Footnote 79 it added that it could only base its decision on the information that was communicated to it.Footnote 80 In contrast, the High Court for England and Wales, in a case also concerning the imposition of targeted sanctions, held that as long as not all information is shared with the Court it is unable to determine whether a different outcome would have been possible.Footnote 81 Exculpatory evidence might have been withheld. Accordingly, the standards for discerning information imposed by different courts may diverge.
However, the ability to share any confidential information depends upon whether the domestic authorities that need to implement the measures are themselves aware of the grounds and evidence underlying an individual's designation, which is not often the case.Footnote 82Subsection 2.3. will deal further with that essential issue.
2.2.2. Guaranteeing fair proceedings
As previously mentioned in subsection 2.1.2. the Court of Justice, as an independent judicial institution, appeared to consider itself in the Kadi II case able to sufficiently guarantee the individual's right to a legal remedy.Footnote 83 Similarly, in the Kadi I case the Court suggested that the infringement of Mr. Kadi's right to an effective legal remedy, resulting from the failure to communicate any evidence to him, could have been remedied had the Court been given enough information in order to sufficiently guarantee his judicial protection.Footnote 84
In principle, this view seems to fit with the reasoning of the ECtHR in the A and Others v. The United Kingdom case.Footnote 85 In that decision, the ECtHR considered that a fair trial would be possible if judicial safeguards adequately counterbalance the limitations on the individual's rights.Footnote 86 The ECtHR found it primarily the responsibility of independent courts to ensure that the individual concerned is afforded an effective legal remedy.Footnote 87 The procedure of special advocates, considered above, could act as an important additional safeguard. Such a procedure may enhance the possibilities for targeted individuals to effectively challenge the imposition of sanctions before courts, in situations in which there is only limited access to confidential grounds and evidence,Footnote 88 but it is not the sole possibility. To guarantee a fair trial, the Court required only that there is at least some procedure followed by the judicial authorities to counterbalance the difficulties caused to the targeted individual, due to a limitation on his human rights.Footnote 89 What is important is that the overall process is fair.Footnote 90
The prime responsibility for ensuring a fair process lies with the courts.Footnote 91 They are in the best position to review whether material was unnecessarily withheld from the individual concerned.Footnote 92 Indeed, the Court of Justice, as it indicated in the Kadi II case, considers it the responsibility of the Court itself to assess whether the reasons for confidentiality relied on by the authorities are well founded.Footnote 93 If it rejects those reasons it provides the relevant EU authority with the opportunity to share the information with the individual concerned. That authority, however, may refuse to do that. In that situation, the Court will not take such information into account in its assessment of the case against that individual.Footnote 94 However, if the Court confirms the confidential nature of the information, it will employ certain techniques, which intend to strike a balance between the competing interests involved.Footnote 95 This may entail providing the individual concerned with a summary of the content of the information and evidence.Footnote 96 It is then for the Court to determine the consequences concerning the probative value of the confidential evidence.Footnote 97
This role would mean that no information on which the authorities seek to rely could be withheld from the Court. Indeed it considered that ‘the secrecy or confidentiality of … information or evidence is no valid objection’ to supplying such information to the Court.Footnote 98 However, the suggestion that the Court of Justice will independently compose and forward to the individual concerned a summary of the information it obtained in confidence, could make states that possess relevant information even more reluctant to share it with the Court, or with the EU authorities. These states might be concerned that the Court imprudently composes such summaries, and might thereby discern security sensitive material to alleged terrorists.Footnote 99 Accordingly, the Court's decision makes it even more difficult for EU authorities to obtain confidential information from designating states.
2.3. The problem of domestic authorities not possessing all information
As previously mentioned, most (or even almost all) of the states that are under an obligation to implement Security Council's targeted sanctions in their domestic legal orders, do not have any knowledge of the grounds and evidence underlying the imposition of those sanctions. The same is true for the relevant EU authorities. In this regard the Court of Justice suggested that these authorities seek the assistance of the UN Sanctions Committee, ‘in order to obtain, in [the] spirit of effective cooperation … the disclosure of information or evidence, confidential or not’.Footnote 100 However, in addition to the potential increase in reluctance to share such information with EU authorities, for reasons indicated above, the Sanctions Committee itself hardly possesses any further confidential information. States transferring names to the Sanctions Committee do not accompany that with a full dossier containing all the information they possess.Footnote 101 As a consequence, only authorities of the state that initiated a specific individual's designation at the Sanctions Committee might be aware of all the grounds and evidence for listing. Occasionally, these authorities are organs of the same state as the court that is being requested to engage in a review of an individual's designation.Footnote 102 In that situation, a solution might be found, and the national authorities might be forced to share confidential information with their own courts.Footnote 103 However, often the designating authorities are not from the same state as the reviewing court, and these authorities share no confidential information with a court that is foreign to them.Footnote 104
Therefore, the procedural deficits that follow from the lack of access to relevant information seem to be extremely difficult to remedy within the present system of the sanctions regime. Establishing special advocates procedures or applying other techniques that enable courts to guarantee the individuals concerned a fair process, is meaningless if no confidential information is made available to them. This means that certain courts will continue to annul domestic implementations of targeted sanctions, either because they regard them to be in breach of the right to effective judicial protection or because they find the designations of individuals to be based on unsubstantiated allegations. A substantial amount of annulments by these courts of domestic implementing measures will eventually undermine the effectiveness of the Security Council's system of targeted sanctions. Therefore, the Security Council will have to respond to these courts’ decisions. A suggestion for a solution will be discussed in the following section.
3. A proposal for decentralization
What follows from the above discussion, is that the lack of access to confidential information for both courts and targeted individuals lies at the very core of the due process problems with the targeted sanctions regime. Over the years the Security Council has made many amendments to this regime,Footnote 105 but this issue has not been, and cannot be, adequately addressed at the UN level. Subsection 3.1. will explain why it is not possible to sufficiently guarantee due process rights at the UN level. Subsection 3.2. will then set out a proposal for decentralizing the system of designations and review, and subsection 3.3. will detail some of the aspects and potential problems anticipated with regard to such an amendment. Finally, subsection 3.4. will clarify how this amendment would change the role of the CJEU in assessing the implementation of targeted sanctions by EU member states. An assessment of that potential new role is relevant since it is particularly the CJEU that took the lead in the judicial resistance against the implementation of targeted sanction measures.Footnote 106
3.1. Impossibility of sufficiently guaranteeing remedy at the UN Level
The latest step in the course of a long development towards establishing a remedy at the UN level was the creation of the Office of the Ombudsperson.Footnote 107 This office is competent to receive individual complaints, on the basis of which it composes a comprehensive report on an individual's listing, after gathering all the relevant information and contacting the individual concerned.Footnote 108 However, even after this significant improvement, fundamental due process issues remain.Footnote 109 For the present discussion it is particularly relevant to mention that in a significant number of cases, the process before the UN Ombudsperson continues to suffer from a lack of access to sufficiently specific and confidential information.Footnote 110 States are very reluctant to share security sensitive information obtained by their national intelligence agencies, and under the present regime there is no obligation for them to do so.Footnote 111 Even if in some instances sufficient information is supplied,Footnote 112 the fact that such an exchange depends entirely on the discretion of states is difficult to reconcile with the demands of due process.Footnote 113 Yet, it cannot be expected that the Security Council would ever create an obligation upon states to disseminate sufficiently detailed security sensitive information to the Ombudsperson. It is hard to imagine that the permanent members of the Security Council would accept an interference with their own state sovereignty, with regard to an issue so closely tied to their national security. Accordingly, it is difficult to see how the problem of not sharing confidential information underlying an individual's designation could ever be solved at the UN level.
A general consideration intrinsic to this discussion is whether or not the interests of individuals could be sufficiently taken into account at all at the level of the Security Council. This inter-governmental body is entirely geared towards mediating between the highly political interests of states, in the course of which the interests of few single individuals are very likely to lose out. This is especially so, since no firm procedural guarantees are in place.Footnote 114 The Security Council proceedings are clearly not embedded in any rule of law system,Footnote 115 which would legally bind it to take account of the rights and interests of individuals. For example, as demonstrated in the present de-listing procedure,Footnote 116 even after the important amendments to the Ombudsperson's competences, ultimately (individual) states still have the final say on most issues.Footnote 117
3.2. Towards a decentralized bottom-up procedure
Instead of attempting to mitigate the due process problems by (further) developing a centralized mechanism for some form of review, more success in balancing the competing rights could be gained from replacing the present top-down procedure with a decentralized bottom-up procedure.Footnote 118
Such a procedure could operate in a manner somewhat comparable to the two-tier mechanism in the context of the EU's implementation of the 1373 regime.Footnote 119 In short, this procedure involves two consecutive steps. First, there needs to be a decision by a competent national authority, which should in principle be a judicial authority.Footnote 120 This decision must confirm that there are ‘serious and credible evidence or clues’ substantiating the allegations made against the individual intended to be targeted. This decision is communicated to the Council of the EU by a member state, together with a request for listing. Second, on the basis of that request, the Council may take the initial decision to designate a particular individual.Footnote 121 This two-tier bottom-up procedure has the benefit that the targeted individual has the opportunity to access some form of judicial review at the national level, before he is designated by the Council of the EU. Applying a similar procedure to Security Council's targeted sanctions regime would increase the opportunity for an adversely affected individual to enjoy a fair judicial procedure, before being listed as a supporter of terrorism by the UN Sanctions Committee. States wishing to target a particular individual would first need to grant him an opportunity to challenge the proposed decision before the domestic courts.
The major advantage of decentralization is that any confidential material relied on can stay with the originator state.Footnote 122 Intelligence agencies have to share security sensitive information only with their “own” domestic courts, and possibly with special security-cleared advocates.Footnote 123 This creates a lower hurdle for sharing such information, than the hurdle faced when sharing information with an international institution or a foreign court on the other side of the world. In the latter situation, the proceedings are entirely unfamiliar to the authorities that seek an individual's designation.Footnote 124 In addition, within many domestic legal systems there are already procedures in place to facilitate a confidential exchange of information. Examples include procedures in criminal proceedings,Footnote 125 cases concerning immigration, and domestic measures countering terrorism.Footnote 126 Not all of these procedures are without critique,Footnote 127 but they would have to be developed within each particular domestic constitutional system to meet the challenges posed by the increasing reliance on confidential information in variety of cases.Footnote 128 In that process there is no reason why such special procedures would then be reserved for certain fields of adjudication involving the use of secret material, and not be applied with regard to reviewing the imposition of targeted sanctions.
The independent judicial review of a proposal to list a particular individual would not have to limit the effective application of the sanctions regime. In most legal systems, courts leave a measure of discretion to the responsible authorities for interpreting relevant facts and circumstances and to decide upon which policy measures to take, especially when those measures seek to further peace and security.Footnote 129 It is generally accepted that it is not for courts to replace the findings of executive authorities with their own.Footnote 130 In determining the facts of a case, courts are not in a better position to make findings than any of the other branches of government.Footnote 131 How much discretion is granted depends essentially on the particular institutional set-up of a state.Footnote 132 In individual instances the amount of discretion may be influenced by several factors, such as the nature of the measure and the impact it has on the rights of the individual concerned.Footnote 133 However, international human rights law demands that in any case courts do not pay so much deference to the findings of executive authorities, as to make the review illusory.Footnote 134
Another potential risk to the effectiveness of the sanctions is that the individual concerned is informed too early in the process of the state's intention to submit his name to the Sanctions Committee. This would give him an opportunity to evade the application of the sanctions measures. To avoid this, the Committee could institute a procedure by which an individual is placed on a tentative (entrance) list upon the first request of a state. The sanctions would then have to be implemented by states immediately, but only for a fixed period of time. Eventually, after completion of the domestic procedures, the outcome should be forwarded to the Sanctions Committee. If the allegations against the individual concerned were rejected in the domestic proceedings, his name would be deleted from the temporary list. If the allegations were confirmed, the members of the Sanctions Committee should consider the judgment, its reasoning, and other relevant circumstances surrounding the trial. In this assessment the Committee should pay appropriate deference to the court concerned, but should also be able to discern whether in the proceedings against the targeted individual, minimum requirements of procedural fairness were observed. If the Sanctions Committee is satisfied that the domestic judgment evidenced sufficient merit for an individual's designation, his name could be transposed to a definitive list. Review of this final list should then take place on a regular basis, by a domestic judicial authority in the state that originally submitted the name to the Committee. If that state, upon such judicial review, was to request delisting, then that is what should be done.Footnote 135 During a certain period of transition towards delisting, another state could in response to the request for delisting decide to institute its own domestic proceedings against the individual concerned, on the basis of its own material.
A decentralized approach as proposed here would add to striking a fair balance between the interest of maintaining international peace and security on the one hand, and protecting the human rights of individuals on the other. It provides targeted individuals with an opportunity for judicial review, while at the same time maintaining the system of universally applicable blacklists. It is even likely to increase the effectiveness of the sanctions regime since domestic courts will no longer annul the domestic implementing measures due to breaches of human rights norms. Moreover, for the individuals concerned it would create a more effective opportunity for a remedy than what the domestic courts presently offer. These courts may now annul domestic implementing measures, but cannot take the targeted individuals off the universal Security Council sanctions list. Accordingly, all UN member states remain under an international obligation to take the prescribed measures against the individuals listed. In addition, their names continue to be connected to allegations of supporting international terrorism, which constitutes an attack on their honour and reputation.Footnote 136
The merit of the proposed amendment is also confirmed by the Sayadi and Vinck decision by the UN Human Rights Committee (HRC).Footnote 137 In this case, which concerned the implementation by Belgium of the Security Council's targeted sanctions against the claimants, the HRC focused specifically on the prior act of Belgium's request for listing with the Sanctions Committee. It did this with the argument that, since it was Belgium itself that transmitted the names of Sayadi and Vinck to the Sanctions Committee; it was thus responsible for their presence on the list.Footnote 138 The HRC thereby shifted the attention and the commencement of responsibility for the state from the moment the Security Council measure is implemented, to the moment the individuals are reported to the Sanctions Committee. It then found that Belgium had transmitted the individuals’ names to the UN Sanctions Committee prematurely.Footnote 139 From this ruling it appears that from a human rights perspective, states cannot submit names to the Sanctions Committee for designation without due care.
3.3. Additional safeguards and a standard of fairness
New problems may still emerge. For example, states may choose to list individuals via a state of convenience, which may afford a lower level of domestic judicial protection. However, if a state opted for that route, it would have to supply sufficient information to the relevant judicial institutions of the other state on which they can base their decision, since the state of convenience would have to show that it affords adequate legal protection. Hence circumvention of a state's own judicial institutions might in principle be possible, but sham trials can be filtered out.
An additional safeguard in this respect may be established by granting the existing UN Ombudsperson a role in evaluating the domestic judicial proceedings. Considering her position as an international organ she can engage in a very marginal check only, but still certain standards concerning a fair process could be demanded. If those standards are not met, the Ombudsperson should recommend to the Sanctions Committee that it should refuse to put the individual concerned on its definitive list. Another option in this regard is to compose a prefixed set of minimum requirements as to the fairness of the procedure, which needs to be observed by the national institutions charged with the domestic judicial review in these instances. Only states with national institutions, which meet those requirements would be allowed to submit names to the Sanctions Committee. In addition, a distinction could be made between A and B category institutions.Footnote 140 States with an A institution would always be allowed to transmit names of individuals, whereas states with a B institution would have the fairness of their proceedings checked on a case-by-case basis. In this way, circumvention through the use of states of convenience would become unattractive and difficult to organize effectively.
Another issue that could arise is that the courts of two different states might arrive at opposing outcomes on the same individual. In this situation the effectiveness of the sanctions regime would prescribe that the state, the court of which concluded in favour of designation, may proceed in that direction, if the proceedings before the court were found to meet the required standards of fairness.
For establishing the standards against which the fairness of a process could be evaluated, guidance must be sought from international human rights law in order to ensure a broad acceptance among various domestic and regional courts.Footnote 141 These standards may then include requirements, such as ensuring that the individual concerned has an opportunity to respond effectively to the allegations against him. This means that the allegations must be formulated sufficiently precise for him to rebut. With regard to the use of confidential information, certain techniques must be in place to counterbalance the adverse effect of withholding relevant information from the individual concerned. This may for example be achieved by means of a special advocate who is able to consult and test the confidential information, regarding both its reliability and its confidential nature.Footnote 142
Ultimately it would be for the courts to safeguard the fairness of the procedure.Footnote 143 In this regard they would also need to be mindful of the fact that often the targeted individual will not be present in the state in which the proceedings take place. In order to ensure the fairness of the process in those instances they would either need to order that the individual concerned is brought before the court,Footnote 144 or that at least a special advocate visits him in his country of residence.Footnote 145
In conclusion, a decentralized designation procedure resulting in universal listing with a central check on the fairness of the domestic procedures, may meet the most important challenge to achieving fairness within the present targeted sanctions regime. At the same time, it may enhance the co-operation and compliance of states.
3.4. The changing role of the CJEU
The proposed change in procedure would result in marginalizing the role of the CJEU in assessing the lawfulness of the implementation of the sanction measures. As a consequence, no confidential information would have to be shared with that court, since it would no longer be necessary for it to fully review the decisions to designate particular individuals. That is because the EU would not itself have to designate individuals and transmit their names to the UN Sanctions Committee, for a coherent implementation of the Security Council's sanction measures throughout the EU. If it would still choose to implement the decentralized Security Council sanctions regime, it would only have to require EU member states to transmit the names of individuals intended to be targeted, and a judicial decision supporting the allegations, to the relevant UN Sanctions Committee. Accordingly, in this regard there is no individual decision by EU authorities eligible for judicial review by the CJEU. On the other hand, the EU authorities may still find it necessary to implement at the EU level the Security Council's sanction measures against the individuals listed by the UN member states. However, if satisfied with the quality of the proceedings before the domestic courts of the originally designating states, the CJEU could pay deference to these judicial decisions and engage only in a review of the EU implementation, possibly comparable to its review of the aforementioned implementation of the 1373 regime.Footnote 146
4. Conclusion
In principle, universally applicable sanction measures against individuals may be a useful tool in the combat against international terrorism. However, a balance needs to be found between guaranteeing the effective legal protection of adversely affected individuals, and safeguarding the legitimate security interests of states. To this end different methods and techniques can be employed. The ECtHR suggested that the use of special advocates may assist in arriving at a fair balance between the interests involved. The CJEU initially seemed to follow this example, but in the latest Kadi II decision appeared to find it more the responsibility of the CJEU itself to guarantee fair proceedings, possibly in response to the lack of a special advocates procedure at the EU level. The Court considered itself in the best position to assess the credibility of claims for confidentiality of certain information, and to determine which information could be disseminated to the individuals concerned.
The problem is that most of the states, or for that matter the EU, that are required to implement the sanction measures do not possess the confidential material underlying an individual's designation and therefore cannot possibly share it with their judicial institutions. However, when no confidential information can be shared with the courts involved – and to a limited extent with the targeted individuals – no fair proceedings can ever be guaranteed. In response, courts will continue to annul domestic implementations of the Security Council's targeted sanctions, because the individual's right to effective legal protection is not observed. Alternatively, courts may annul domestic implementing measures because the allegations against the targeted individuals are not underpinned by evidence. In this regard, the Court of Justice demanded a full review of the decision to impose sanctions on a particular individual. It required a judicial evaluation of whether the reasons for listing were substantiated and whether they constituted a sufficient basis for the decision taken.Footnote 147
However, it is highly unlikely that states would be willing to share confidential security sensitive information obtained by their national intelligence agencies, with any foreign courts – let alone with targeted individuals via those courts. Nor is it to be expected that the Security Council would ever impose an obligation upon states to share such information with the Office of the Ombudsperson. Therefore, the problem of lack of access to relevant confidential information can be countered only by decentralizing the current targeted sanctions regime. The Security Council should institute a two-step procedure for the imposition of targeted sanctions. National authorities seeking an individual's designation would need to ensure the individual a fair trial before domestic courts, prior to putting him on a universally applicable blacklist. To avoid undermining the sanctions’ effectiveness, temporary sanctions (with a sunset clause) could be adopted immediately after a state requests designation. This would give the state a certain period of time to complete the domestic proceedings, which should guarantee the targeted individual a fair trial. A major advantage would be that the relevant state authorities might be more willing to share confidential information with courts within their own state than with courts in a foreign state. The fairness of the individual's trial before these domestic courts could be guaranteed further by the use of special security-cleared advocates, who would have the opportunity to test the strength of the evidence, and the reasons for its confidentiality.
This solution places the emphasis on the situation before the definitive imposition of the sanction measures, which avoids the situation whereby states are confronted with a conflict of norms after the adoption of sanctions. Moreover, it creates a more effective remedy for the individuals concerned. Instead of annulling a mere domestic implementation of the international sanctions measures against the individuals, the judicial decision directly concerns the central listing itself. Hence the present solution will contribute to enhancing the co-operation and compliance of states – thereby increasing the sanctions’ effectiveness – and it will encourage the protection of the human rights of targeted individuals.
