Human Rights: Untangling UN Anti-terrorism Sanctions and Human Rights

Source: Open Society Foundations
Case Watch: Untangling UN Anti-terrorism Sanctions and Human Rights
September 14, 2012 by Jonathan Horowitz Open Society Justice Initiative

Campione d’Italia, a tiny Italian enclave lying inside the territory of Switzerland, is not often in the news, despite being featured earlier this year by a writer for the New York Times. But this week the small town on the shores of Lake Lugano provided the backdrop for a long-awaited judgment handed down by the Grand Chamber of the European Court of Human Rights. Born out of the aftermath of the September 11 terror attacks on the U.S., the case looks at how a state’s obligations to the United Nations relate to its obligations to protect individual human rights.

The case, Nada v. Switzerland, involves Youssef Moustafa Nada, an Italian and Egyptian national born in 1931, who has been a resident of Campione d’Italia since 1970. In 2001 Nada was placed on the United Nations Security Council’s Taliban and al-Qaeda terrorist sanctions list, through the work of the council's sanctions committee and upon the recommendation of the United States. The sanctions included travel and transit bans and asset freezes. Because they were authorized under Chapter VII of the United Nations Charter, all states were obliged to follow the sanctions measures. The Swiss Federal Council, in turn, adopted an ordinance (known as the “Taliban Ordinance”) to provide domestic legal authority to institute those measures.

As a result of being on the list, the subsequent ordinance, and Campione d’Italia’s position as an Italian enclave surrounded by Switzerland, Nada claimed he had been subjected to breaches of several articles of the European Convention on Human Rights: Article 5 (right to liberty) because he was unable to travel freely through Switzerland into Italy; Article 8 (respect for private and family life, honor and reputation) because he was unable to visit family members and doctors in Italy, and because his reputation was damaged by virtue of being on the list; Article 3 (prohibition of ill-treatment) arising out the Article 5 and Article 8 violations; Article 9 (freedom to manifest his religion or beliefs) for his inability to worship at a mosque due to the travel restrictions; and Article 13 (right to an effective remedy).

In the end, the Court found a breach of Articles 8 and 13. But instead of focusing on the details of each violation, I’d like to draw attention to the larger issue at stake in this case which is, essentially, Switzerland’s claim that UN Security Council Chapter VII resolutions required Switzerland to follow the sanctions measures even if it meant that Switzerland would have to breach European human rights treaty law. In doing so, Switzerland also objected to Nada’s Article 13 claim, arguing that it had no way to effectively remove Nada from the United Nations sanctions list.

The potential for conflicts between obligations arising out of Chapter VII resolutions and competing rules of international law was foreseen by the drafters of the UN Charter. Article 103 of the charter states that the obligations of the charter “shall prevail” over other international agreements. But, having been adjudicated by the European Court of Human Rights and in other venues, the hierarchy of laws is not as clear as Article 103 makes it sound. In Al-Jedda, for example, the European Court of Human Rights held that there “must be a presumption that the security council does not intend to impose any obligation on member states to breach fundamental principles of human rights” (para 102).

In Al-Jedda, the facts related to wartime internment powers and the UN resolution under question was non-specific about whether internment—which is largely frowned upon by human rights law—was required. In Nada, however, the resolutions expressly required states to prevent those on the list from transiting through their territory, thereby apparently sanctioning the deprivation of Nada’s human rights. Given this, it appeared that Switzerland would have the upper hand.

But, in its analysis, the court still did not believe that Switzerland could hide behind its Chapter VII obligations to avoid its human right responsibilities under the European Convention. The court ruled that Switzerland had a responsibility for attempting to harmonize any apparent conflicts that arose, and that in the specific case of the sanctions list, the court saw the Chapter VII resolutions as providing Switzerland with a variety of exemption processes for mitigating the harm of the sanctions that Switzerland did not properly take advantage of.

The court focused on the fact that, in 2005, a Swiss Federal Prosecutor closed an investigation against Nada that has concluded that the suspicions of his terrorist activities or links were clearly unfounded. The court, in reviewing this and other evidence, noted that it was “surprised by the allegation that the Swiss authorities did not inform the Sanctions Committee until 2 September 2009 of the conclusions of investigations closed on 31 May 2005.” The court, noting that Nada was removed from the sanctions list on September 23, 2009 shortly after Switzerland sent the Sanctions Committee a letter from the Federal Prosecutor’s Office, continued, “a more prompt communication of the investigative authorities’ conclusion might have led to the deletion of the applicant’s name form the United Nations list at an earlier stage, thereby considerably reducing the period of time in which he was subjected to the restrictions of his rights under Article 8” (para. 188). The court also chastised Switzerland for not encouraging Italy to delist Nada given that “it was for the State of citizenship or residence of the person concerned to approach the Sanctions Committee for the purposes of the delisting procedure” (para 194).

As a separate point, the court also concluded that the sanctions resolutions provided a sufficient degree of flexibility to implement the resolution with greater deference to its human rights obligations than what Switzerland provided through the Taliban Ordinance. The court declared, “Without prejudice to the binding nature of such resolutions, the Chapter in principle leaves to UN member States a free choice among the various possible models for transposition of those resolutions into their domestic legal order” (para. 176). The court observed that Switzerland did not take advantage of the resolutions’ precise language to craft a domestic system that safeguarded Nada from human rights violations.

Interestingly, Judges Bratza, Nicolaou, and Yudkivska issued a concurring opinion that disagreed that Switzerland had sufficient latitude to protect Nada’s rights by finding alternative ways to shape the domestic legal mechanism it put in place to implement the UN resolutions. Instead, the three judges said, as the court also did, that the Article 8 violation arose because Switzerland did not sufficiently work within the sanctions regime processes to reduce the harm to Nada. The judges wrote that Swiss authorities did not “take all reasonable steps open to them to seek to mitigate the effect of the sanctions regime by the grant of requests for exemption for medical reasons or in connection with judicial proceedings, or to bring about a change in the sanctions regime against the applicant so as to secure so far as possible his Convention rights.”

With regard to Nada’s Article 13 claim, Switzerland said there was nothing it could do to remove Nada from the UN sanctions list and therefore the claim was ill-founded. The court came to a different conclusion, saying that Nada “did not have any effective means of obtaining the removal of his name from the list annexed to the Taliban Ordinance and therefore no remedy in respect of the Convention violations that he alleged” (para 213).

The ruling in Nada is important. It provides a good example of why the Security Council, when passing Chapter VII resolutions, should allow states a degree of flexibility that allows their domestic legal systems to harmonize their UN Charter obligations with their human rights obligations. More importantly, it puts states on notice that they cannot unquestionably avoid their human rights obligations on the basis of implementing Chapter VII resolutions, even when dealing with the politically sensitive issue of terrorism. What the decision did not do, however, was directly answer questions about the hierarchy order of the UN Charter, Chapter VII resolutions, and international human rights obligations. The case also did not solve (because it’s not the role of the court to do so) the criticism that the process and criteria by which individuals are added to the UN sanctions regimes are ill-defined and vague.