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Not Only a Matter of Lex Specialis: IHL, the European Union and Its Two Definitions of Terrorism

Published on December 1, 2014        Author: 

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These times of foreign fighters who travel from Europe to Iraq and Syria have revived the debate on how the definition of terrorism relates to armed conflict. The recent judgment of the EU first instance judicial body, the General Court, in the Tamil Tigers case highlights that different approaches are possible even within a single polity, the European Union. This post discusses the underlying rationale and the implications of the decision’s conclusion on the relationship between terrorism and armed conflict, which appears to have gone unnoticed in legal circles. Other relevant findings of the Court (for instance, the validity of a judgment of an Indian court as a basis for the listing of the group) will not be addressed here.

The EU has been one of the main supporters of current Article 3 of the Draft Comprehensive Convention on International Terrorism (former article 18), according to which the definition of terrorism excludes ‘international law applicable in armed conflict, in particular those rules applicable to acts lawful under international humanitarian law’ (paragraph 4). To advance the present version of the convention, the EU has signed partnership agreements with Iraq and South Korea that include reciprocal agreement to support it. As is well known, Article 3 is the main cause of deadlock in the negotiations. It is not by chance that the United Nations Security Council has been operating for years without a definition of terrorism.

Despite its support for Draft Article 3, the EU itself is not alien to the tensions preventing the provision’s adoption. The recent judgment of the General Court has demonstrated that, even within the EU, the relationship between IHL and terrorism is unsettled. For the sake of discussion, I will assume that the EU is bound by customary IHL in the exercise of its competences, which implies inter alia a duty to interpret EU law in accordance with customary IHL (as AG Mengozzi claimed in Diakité, paras. 23-27). Read the rest of this entry…

 

On AG Bot’s Opinion in Kadi (IV)

Published on May 31, 2013        Author: 

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Dr. Asier Garrido Muñoz is Assistant Professor of Public International Law (University of Salamanca). He has recently published Garantías judiciales y sanciones antiterroristas del Consejo de Seguridad de Naciones Unidas (Tirant lo Blanch, Valencia, 2013 here).

After Nada v. Switzerland (ECtHR) and Parliament v. Council, AG Bot has added new grounds to the debate on anti-terror lists with his opinion delivered on 19 March 2013 in the Kadi (IV) case (available here). The case has its origin in an appeal filed by the Commission, the Council and the United Kingdom against the judgment of the General Court (GC) delivered in Kadi (III). Mr Kadi and the preceding judicial decisions need no presentation here. As a consequence, this post will omit all details on Kadi (III) and the background to that decision.

The Commission (C-584/10 P), the Council (C-593/10 P) and the United Kingdom (C-595/10 P) basically supported their application on three main grounds. Firstly, the GC had erred in law in Kadi (III) by refusing to grand judicial immunity to the Regulation including Mr Kadi’s name in the 1267 list. Secondly, the standard of judicial review applied by the GC in order to supervise the inclusion of Mr Kadi in the list had been excessively demanding. Finally, the arguments of the GC concerning the violation of his rights of defense and the right to a fair trial were wrong. It must be noted that Mr Kadi was withdrawn from the UNSC 1267 list on 5 October 2012, that is, some months after the oral phase of the procedure before the ECJ had taken place. This incident provoked some surprise amongst the parties to the case but should not preclude a final ruling on a previous GC judgment.

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