An Effective Remedy for Josef K: Canadian Judge ‘Defies’ Security Council Sanctions through Interpretation

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Antonios Tzanakopoulos is a DPhil Candidate at St Anne’s College, Oxford. In 2005, he was research assistant to Professor Giorgio Gaja, the International Law Commission’s Special Rapporteur on the Responsibility of International Organizations. His Oxford thesis is on the responsibility of the United Nations for wrongful non-forcible measures by the Security Council. Many thanks are due to Dapo Akande, Gleider Hernández & Devika Hovell. The usual disclaimer applies.

I. Introduction

Municipal and regional courts are increasingly engaged by individuals and legal entities in questions relating to UN Security Council measures adopted under Article 41 of the Charter. Most prominent among these are the ‘targeted sanctions’ imposed by Security Council Resolutions (SCR) 1267 (1999) seq, which provide for asset freezes, travel bans and arms embargoes against persons listed by the Committee established pursuant to SCR 1267 (the 1267 Committee). Usually the relevant SCRs are attacked indirectly before the domestic court, the direct attack being on the domestic implementing measures. In the recent case of Abousfian Abdelrazik v The Minister of Foreign Affairs and the Attorney General of Canada (Federal Court of Canada; currently available here but also to be made available here shortly), the impugned conduct on the part of Canada which gave rise to a claim for the violation of Canadian constitutional rights began long before any listing by the 1267 Committee. The listing only served to complicate matters and to offer an excuse to Canada with respect to a pattern of conduct that pre-dated the listing. The facts provided the opportunity for the Canadian judge to express what has been on the mind of many with respect to the 1267 regime of ‘targeted sanctions’: if you happen to get listed, it is much like being Josef K in Franz Kafka’s The Trial. In this case though-and possibly for the first time-Josef K got an effective remedy.

The Canadian Federal Court held that Canada had violated the constitutional right of Mr Abdelrazik (a dual Sudanese and Canadian national) to enter Canada, even though he was subject to UN sanctions. The court interpreted the SCRs such that the travel ban and asset freeze imposed by the Security Council would not prevent Canada from assisting Mr Abdelrazik’s return to Canada. In so doing, the Canadian court effectively forced upon the Executive its own interpretation of Canada’s obligations under the UN Charter, and required that Canada comply with the court decision. The Court’s interpretation risks a breach by Canada of the SCR and the UN Charter,, should the Security Council interpret its own Resolution differently. The situation is not unlike the one forced upon the European Community and its Member-States following the ECJ’s decision in Kadi: either breach the obligation stemming from the Security Council decision (by removing Kadi’s asset freeze) or disobey the ECJ (by maintaining the freeze). In Abdelrazik, the Court was prepared to go a step further than the ECJ as it asserted that the sanctions regime imposed by SCRs 1267-1822 was unlawful under international human rights law. The case marks yet another step in a new era that sees domestic and regional courts asserting with confidence their (indirect) jurisdiction over UN sanctions regimes.

II. Factual Background

Abousfian Abdelrazik was jailed in Sudan in 1989 after the successful military coup of Omar Al-Bashir. In 1990 he managed to flee to Canada, where he was first granted refugee status and then Canadian citizenship. In March 2003, after some of his acquaintances had been charged or convicted for participating in terrorist attacks, Abdelrazik returned to Sudan, claiming he had been continuously harassed by the Canadian Security Intelligence Service (the CSIS) in the wake of the September 11 attacks (at [9]-[12]). Abdelrazik was detained in Sudan at the request of Canada (id at [66]-[91]) in 2003 and 2005-2006. He spent 11 and 9 months in detention without charge, during which time he was questioned by the CSIS, as well as allegedly tortured by Sudanese authorities. After each detention he undertook several attempts to return to Canada which were thwarted by the Canadian authorities, who seemed to be in no great rush to bring him home (id at [13]-[21]). In July 2006, Abdelrazik was designated as an Al-Qaida associate by US authorities and was subsequently listed by the 1267 Committee (id at [22]-[24]). The listing added another significant layer of complexity to his attempts to return to Canada, as he was now subjected to an asset freeze and a travel ban under the relevant Council Resolutions. Abdelrazik tried to get himself de-listed, but the 1267 Committee denied the request without giving reasons on 21 December 2007 (id at [27]-[29]).

On 29 April 2008, Abdelrazik, fearing that yet another stint in Sudanese detention was looming, sought safe haven in the Canadian Embassy in Khartoum, where he has been living ever since (id at [30]). His repeated attempts to secure a Canadian travel document and safe conduct to Canada were denied by the Canadian Government, despite the latter having expressed (and later reiterated) a commitment to see through his return. In the last instance the Canadian MFA denied Abdelrazik the issuance of the travel document-without giving any reasons-a mere 2 hours before his flight was scheduled to depart, on 3 April 2009 (see id. at [31]-[40]).

III. The Case before the Canadian Federal Court

Abdelrazik brought a case before the Federal Court claiming a violation of his right to return to Canada under the Canadian Charter of Rights and Freedoms (id at [42]). The Court had to decide whether Abdelrazik’s constitutional right to enter Canada had been violated, ie if it had been limited without this being demonstrably justified in a free and democratic society under the Canadian Charter (id at [61]). If this were the only issue at stake, the decision of the Federal Court would present limited interest for international lawyers, save perhaps with respect to the question whether a Security Council Resolution under Chapter VII of the UN Charter is adequate to establish a ‘demonstrably justified limitation’ to a fundamental right (cf eg Case C-84/95 Bosphorus [1996] ECR I-3953 at [21]-[26], in particular [26 in fine]).

However, the Canadian Government argued that it was not Canada, but rather the 1267 Committee that impeded Abdelrazik’s return, having made him subject of a global travel ban and asset freeze (id at [44] and [147]). As a result of this, neither Canada nor anyone within Canada could pay for or provide transportation for Abdelrazik (id at [45]-[46] and [122]-[123]). This was because no one could make available any funds or economic resources for his benefit directly or indirectly (SCR 1822 [2008] at [1(a)]); and further because no one could facilitate his transit through other States’ territories, which includes their airspace, in order to get him back to Canada (id at [1(b)], as interpreted by the Canadian Government in Abdelrazik at [122]-[123]; [147]). If any of these were to happen, Canada would be in breach of its international obligations under the relevant Resolution and Article 25 of the UN Charter.

Mr Justice Zinn was not persuaded by the arguments of the Canadian Government. He found that Canada had violated Abdelrazik’s right to enter Canada under the Canadian Charter (Abdelrazik at [156]), and that the latter was entitled to an effective remedy for the breach (id at [157]). He proceeded to determine that the effective remedy is that Canada must provide an emergency passport to Abdelrazik, as well as the airfare or additional airfare required for him to return to Canada (id at [160]), and an escort to ensure Abdelrazik’s unimpeded return (id at [166]). Finally, Mr Justice Zinn required that Abdelrazik present himself before the Court, so that it be satisfied of his return to Canada, retaining jurisdiction over the case until it is so satisfied (id at [167]-[168]).

IV. The Court’s Engagement with International Law

In the course of delivering its judgment, and despite dealing exclusively with a claim under domestic law, the court engages with international law, and in particular with the 1267 sanctions regime, on a number of levels. These are discussed in turn.

a. Issues of Attribution

Canada put forward a claim that it was not itself, but rather the UN (acting through the Security Council, acting in turn through the 1267 Committee) that impeded Abdelrazik’s return to Canada. Implicit in this claim is the argument that acts of Canadian State organs in implementation of binding Security Council decisions are not attributable to Canada (as they would be under Article 4 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts [ARSIWA]), but to the United Nations (see Abdelrazik at [3]; [44]; [147]). But according to the ILC, acts of a State organ that is not fully seconded to an international organization (as when the State organ is implementing a binding IO decision) are only attributable to the Organization if the latter effectively controls them (see here with further references). For the Canadian argument to stand, one would have to accept that the acts of the organ of a State are attributable to an international organization when the State organs are acting under the international organization’s effective normative rather than effective factual control.

It seems however that the ILC rejected such an approach in drawing up its Draft Articles on the Responsibility of International Organizations (DARIO) (see Article 5 DARIO and the ILC Report 2004 at 111[3]-[4] and 113[7]). Also, both the European Court of Human Rights (ECtHR) and (implicitly) the European Court of Justice (ECJ) have considered that acts of Member-State organs are attributable to the Member-States even if they are in implementation of a strict international obligation imposed by an international organization (ie when the obligation leaves no margin of appreciation to the Member-State: see eg ECtHR Bosphorus at [153] and cf Case C-402/05 P Kadi ECR I-0000 at [281] respectively).

But even if effective normative control over the conduct of a State organ by an international organization were accepted as leading to attribution of such conduct to the international organization (which it is currently not, rightly or wrongly), this would still not help Canada. The latter would further need to show that attribution of conduct to one entity (eg an international organization) precludes attribution of the same conduct to another entity (eg a State), something which the ILC has refrained from asserting (see ILC Report 2004 at 101[4] and this blog here). Otherwise, it is perfectly possible that the same conduct is attributable to two different entities (eg under Articles 4 ARSIWA and 5 DARIO).

The Canadian judge does not engage with the (admittedly implicit, if anything) argument, save to note that the act of the Canadian Foreign Minister to deny a passport to Abdelrazik on 3 April 2009 is enough to defeat any claim by the Government that it did not deny Abdelrazik entry into the country (Abdelrazik at [148]). In that he can be seen as applying Article 4 ARSIWA. Canada is finally found to have ‘engaged in a course of conduct and specific acts that constitute a breach of [Abdelrazik’s] right to enter Canada’ (id at [156]).

b. Interpretation of Security Council Resolutions

As addressees of Security Council Resolutions, States must be expected to interpret these Resolutions in order to apply and implement them. In many occasions the interpretation will be undertaken by the Executive (eg Swedish authorities continued to make welfare payments to listed individuals under the original regime of SCR 1267 [1999], interpreting these as not falling within the ambit of the Resolution, even before the exceptions adopted by SCR 1452 [2002]), but it may well be undertaken by a domestic court (eg the Irish High Court interpreted SCR 820 [1993] as not having intended to penalize, deter, or sanction those peoples or States not having contributed to the tragic events in Former Yugoslavia, and dismissed a Sanctions Committee decision that found a certain aircraft to fall within the terms of the Resolution: Bosphorus Hava v Minister for Transport [1994] 2 ILRM 551 at 557-8).

In the present case, the Canadian judge has to engage, and indeed engages with the interpretation of SCR 1822 [2008] to a considerable extent, as that SCR contains exceptions to the travel ban. This is because Canada presents the Resolution as prohibiting it from allowing Abdelrazik into the country.

In order to counter the Canadian argument that Canada cannot facilitate Abdelrazik’s travel to Canada, lest it be found in breach of SCR 1822, Mr Justice Zinn observes that 1822 (at [1(b)]) explicitly does not oblige a State to deny entry into its territories of its own nationals. Canada’s claim in turn is that in order for Abdelrazik to make it to the border (and be allowed entry), he must transit through the territory (which includes airspace) of other States. Since SCR 1822 also prohibits transit through territory, Canada would be facilitating the breach of the Resolution (Abdelrazik at [122]-[123]). The Canadian judge goes on to interpret the term ‘territory’ in SCR 1822, and finds that it does not include airspace. In doing this he relies, inter alia, on Canada’s own apparent interpretation of the provision in its submissions to the 1267 Committee on Canadian implementation of the relevant obligations. The submissions only deal with entry into and not transit through Canada. In effect, Mr Justice Zinn applies the principle of non venire contra factum proprium (‘it is not allowed to act contrary to one’s own previous conduct’), not allowing Canada to put forward two conflicting interpretations of the same provision (id at [125]-[126]). He further observes that Canada’s interpretation would lead to the following ‘non-sensical’ result: a listed national would be allowed entry if he happened to be standing on the border, but would not be allowed to travel to that border, as she would have to transit through the territory or airspace of other States. The judge rejects such an interpretation, in effect applying the principle of effectiveness (ut res magis valeat quam pereat): the Security Council could not have intended an absurd outcome (id at [127]). As such, the travel ban is not an impediment to Abdelrazik’s return (id at [128]).

Further, the judge anticipates that Canada will object to his order that the Government pay the airfare for Abdelrazik’s return home on the grounds that this will be a violation of Canada’s obligation to respect the asset freeze imposed under SCR 1822. He states that an exception to the travel ban and asset freeze is provided when necessary for the ‘fulfillment of a judicial process’ (id at [162]). This exception is indeed provided by SCR 1822 (at [1(b)]), but only with respect to the travel ban, not the asset freeze. It is unclear whether the judge is interpreting the exception to the travel ban to include an exception to the asset freeze when necessary, or whether he is simply misreading the Council decision.

Be that as it may, what is most interesting is the court’s interpretation of the term ‘judicial process’. Mr Justice Zinn, citing Canadian precedent, gives the term a broad meaning, so as to include measures of execution ordered by the court. As such he finds that a court order to the effect that Abdelrazik must be brought back to Canada cannot cause the Government to breach its international obligations under the Resolution: Canadian assistance to Abdelrazik would not constitute a violation, as it is ‘in fulfillment of the judicial process’ (Abdelrazik at [163]-[165]). Interestingly, while the Canadian judge relies primarily on Canadian case law to reach this interpretation, his finding accords with the position taken by the ECtHR (eg in Hornsby at [40]), that execution of a judgment is an ‘integral part of the trial’ (discussing the right to a fair trial under Article 6 of the European Convention on Human Rights). Even more interestingly, he confirms his broad interpretation of ‘judicial process’ by resorting to the French language version of SCR 1822, which refers to ‘aboutissement d’une procédure judiciaire’: he finds the plain meaning of ‘aboutissement’ to be ‘outcome, result’, which includes measures required to be taken in execution of a court order (Abdelrazik at [164]; cf Article 33[4] of the 1969 Vienna Convention on the Law of Treaties and LaGrand [2001] ICJ Rep 466 at 502 [101]).

c. Effective Remedy

The interpretation by Mr Justice Zinn of the provisions of SCR 1822 allows him to overcome two distinct hurdles: in the first place, the interpretation of the first exception to the travel ban allows him to defeat the Canadian argument that SCR 1822 requires Canada to abstain from facilitating Abdelrazik’s return. As such, Canada is found in breach of the Canadian Charter. The interpretation of the second exception to the travel ban (in combination with the interpretation of the first) allows the judge to order what he considers to be an effective remedy for the breach: namely to order Canada to facilitate Abdelrazik’s return, even through the provision of financial aid (for the airfare).

Of course neither interpretation is determinative of the position in international law. For purposes of international law, the interpretation of a domestic court is no more determinative than the interpretation of a domestic Executive. They both constitute an exercise in auto-interpretation, which is not binding on the UN and its Security Council, or on any other State. The 1267 Committee could thus find that either interpretation (or both) amounts to a breach of SCR 1822 on the part of Canada.

V. The Underlying Rationale: International Illegality of the 1267 Regime

By ordering the Canada to facilitate Abdelrazik’s return, the Canadian court is in effect ‘pushing Canada into a corner’: the Executive must now either comply with what it believes is the correct interpretation of SCR 1822 and disobey its own court; or it must comply with its domestic court’s decision and risk being found in breach of SCR 1822 and thus Article 25 of the UN Charter. But the Canadian judge does not stop there. In execution of his order, and so as to ensure that the remedy is indeed effective, he orders that Abdelrazik attend before the Canadian court at a specified time and date, and reserves the Court’s right to oversee implementation and issue further orders in this respect (Abdelrazik at [167]-[168]). Mr Justice Zinn does not even give Canada a leeway similar to the one the ECJ gave the Community and its Member-States in Kadi (at [373]-[376]). Admittedly, this may have to do with the fact that the judge believes his order not to be in violation of the relevant SCR-but his guess is at least as good as the Government’s in this respect. In any event, one cannot fail to notice the increasing confidence and robustness of domestic courts when faced-one way or another-with the 1267 regime. What can be said to account for the transformation of the considerable deference in the CFI’s Kadi and the Swiss Federal Tribunal’s Nada (ILDC 461 [CH 2007]), as well as the Turkish Council of State‘s Al-Qadi (unpublished in English), to the robust responses in the ECJ’s Kadi and in the Canadian court’s present decision?

The reason why the Canadian judge is willing to take chances, interpreting the relevant SCR and ordering an effective remedy potentially in breach of the SCR (even though he ‘interprets it out’ of the equation), is expressed quite clearly in the section of the judgment dealing with the applicable law. Under the heading ‘Canada’s International Obligations’, Mr Justice Zinn cites Articles 24-25 and 41 of the UN Charter (Abdelrazik at [45]-[46]) and then goes on to describe the 1267 sanctions regime.

He recounts the familiar shortcomings ascribed to the 1267 listing and de-listing procedures: there is no direct hearing, not even in limited form; no independence and impartiality in the consideration of petitions, where the Committee acts as judex in sua propria causa; there are no reasons provided, not even in narrative form, for some of the individuals listed and despite relevant requirements in SCR 1822; finally, the process requires the petitioner to prove a negative (that she is not associated with Al-Qaida), something as easily achievable as proving that ‘fairies and goblins do not exist’ (id at [51]-[53]).

Mr Justice Zinn is unreserved in his qualification of the 1267 regime: he considers it as ‘a denial of basic legal remedies’ (Abdelrazik at [51]) and as ‘a situation, for a listed person, not unlike that of Josef K in Kafka’s The Trial, who awakens one morning and, for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecified crime’ (id at [53]). The literary reference is no doubt powerful and on target-this is what many considered the 1267 regime to be, but Mr Justice Zinn is the first to boldly assert it in writing. As a result, the Canadian judge seems to feel compelled to assert his power to decide the case and order an effective remedy: ‘in light of the shortcomings’, he says, ‘it is disingenuous of [Canada] to submit, as [it] did, that if [Abdelrazik] is wrongly listed the remedy is for [him] to apply to the 1267 Committee for de-listing and not to engage this Court’ (id).

In essence, the very same criticism of the 1267 regime has already been leveled by a Court-namely by the ECJ in Kadi (at [322]-[325]). What is different, and particularly significant in the instance, is that Mr Justice Zinn levels the same criticism but on the basis of international law: the 1267 regime is found to be ‘untenable under the principles of international human rights’ (Abdelrazik at [51]) and to flout the presumption of innocence, ‘a fundamental principle of Canadian and international justice’ (id at [53] [emphasis added]). Where the ECJ criticized the 1267 regime on the basis of fundamental rights under EC law, the Canadian court clearly drew the obvious parallel between domestic rights and international rights of the same content. In substance both the ECJ and the Canadian court claim the violation of a hard core of basic (domestic) rights with universal radiance, embodied in almost universally ratified international conventions and in the Universal Declaration (see further here at part V). This universal radiance is what justifies their reaction. But the Canadian court in the present case makes this parallelism between fundamental rights under domestic and international law explicit, where the ECJ seems to prefer a certain ‘splendid isolation’.

VI. Conclusion

The Abdelrazik case before the Canadian Federal Court is not primarily about the 1267 regime, but rather about Canada’s breach of one of its citizen’s fundamental rights which began occurring long before the 1267 Committee came into play. In the event, however, the decision of the Canadian Court boldly engages with the international legal issues raised by the involvement of the 1267 Committee, even if not always convincingly. And in the end it grants Abdelrazik-turned-Josef K his effective remedy.

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Nehal Bhuta says

June 25, 2009

Post script: Last week, the Canadian government agreed to issue a travel document and repatriate Mr. Abdelrazik.