Targeted Sanctions after Affaire Al-Dulimi et Montana Management Inc. c. Suisse: Is There a Way Out of the Catch-22 for UN Members?

UN member states remain caught between the obligation to carry out Security Council decisions under Art. 25 of the UN Charter and the obligation to respect international or regional human rights guarantees. The chamber judgment of 26 November 2013 in Al-Dulimi, No. 5809/08, is the second decision of the European Court of Human rights (ECtHR) on targeted sanctions after Nada (ECtHR (Grand Chamber), Nada v. Switzerland, No. 10593/08, judgment of 12 Sept. 2012). In contrast to the constellation in Nada, the UN member states (here Switzerland) had no leeway at all to implement the Iraq sanctions imposed by UN SC Res. 1483. However, because the UN sanctions regime did not guarantee “equivalent protection”, the Bosphorus-presumption that the states’ implementing measures are in conformity with the European Convention of Human rights (ECHR) did not apply – in other words, it did not help the state that it had no leeway. Strasbourg examined in full whether Art 6 ECHR had been lawfully restricted by Switzerland and found that this was not the case. On the contrary, the Swiss Federal Tribunal’s refusal to scrutinize the merits of Al-Dulimi’s complaint (with a view to Art. 103 UN Charter), had undermined the very essence of Art. 6 ECHR and therefore Switzerland violated the Convention.

By insisting on full responsibility of ECHR members for violations of the Convention, independently of their “strict” obligations under Security Council resolutions, Strasbourg has in Al-Dulimi stabilized the catch-22-situation. This blog post argues that member states should not be left off the hook, but also calls for responsibilizing the United Nations.

Facts and domestic proceedings

In Al-Dulimi, the European Court of Human rights held a UN member state which is also a member to the ECHR and that had implemented a Security Council decision on targeted sanctions by freezing the assets of a blacklisted person, remains fully responsible for violation of Art. 6 ECHR (right of access to a Court).

Al-Dulimi concerned the sanctions regime against Iraq, and the pertinent SC decision was Resolution 1483 (2003) of 23 May 2003 which, inter alia, prescribed the freezing of assets of the government of Saddam Hussein, Saddam’s family members and high responsibles of the Iraqi ancient regime (para. 23 of the resolution). The 1483 sanctions committee listed the firm Montana Management, which has its seat in Geneva, and its director, Al-Dulimi, in April 2004.

Implementing Resolution 1483, Switzerland in 2004 started a confiscation procedure with regard to assets of Al-Dulimi and of Montana Management (assets which had actually already been frozen since 1990, under the preceding sanctions regime against Iraq).

Al-Dulimi, through Switzerland, tried in vain to be heard by the sanctions committee and to be struck from the blacklist. Following the committee’s negative decisions, Switzerland pursued the confiscation, while emphasizing that it was bound by the Security Council resolution to do so.

The decision of the Swiss Federal Tribunal: Al-Dulimi went through the Swiss domestic judicial system. In three decisions rendered on the same day, the Swiss Federal Tribunal rejected his complaints (BGE 2A.783/2006; BGE 2A.784/2006; BGE 2A.785/2006; all of 23 January 2008).

The tribunal repeated its previous stance that the Swiss judiciary is in principle not entitled to examine the substance of complaints by victims of targeted sanctions because Switzerland was bound by Security Council resolutions which enjoy priority over potentially conflicting treaties of member states (including the ECHR) due to Art. 103 UN Charter. The exception is possible violations of ius cogens (because the Security Council itself is not allowed to violate ius cogens). Given the fact that Res. 1483 contained a strict obligation, and because the right of access to an independent and impartial court does not belong to the body of peremptory norms under international law, the Federal Tribunal refused to examine the correctness of the procedure or the substantive well-foundedness of Al-Dulimi’s listing (BGE 2A.783/2006, para. 9.2.). Anything else would deprive Art. 25 UN Charter of its effet utile (ibid., para. 10.1). Because Switzerland was not in a position to achieve the de-listing of the applicant, its behaviour violated neither the Swiss constitution nor Art. 6 or Art. 13 of the ECHR. However, the Federal Tribunal obliged the Swiss authorities to grant Al-Dulimi a “last short delay” before executing the confiscation, so that he could once again appeal to the sanctions committee himself (which he did unsuccessfully).

The Al-Dulimi decision of the ECtHR

In the merits, the ECtHR first emphasized, as already in Nada, that the apparently conflicting obligations arising from the UN Charter on the one hand, and the ECHR on the other hand, must be as far as possible harmonized and reconciled (Art. 31(3) lit. c) VCLT; Al-Dulimi, paras. 111-112).

Second, the ECtHR repeated the Bosphorus-presumption: States’ measures implementing obligations arising out of their membership in an international organisation (in our case the UN) can be presumed to be in conformity with the ECHR, but only if the organization guarantees an “equivalent protection” to human rights as the Convention itself (Al-Dulimi, para. 114). However, the state remains fully responsible (no presumption of conformity with the ECHR) if the state takes measures which are not strictly required by the international organisation, notably when it enjoys a leeway and has exercised discretion (“pouvoir d’ appreciation”; Al-Dulimi, para. 114).

Thirdly, the Court applied the “equivalent protection” criterion to the United Nations (whereas most previous case had concerned the EU) and to this particular case. The first prong then was to examine the leeway of the implementing UN member states. Here, the Court found that SC Res. 1483 left no discretionary power (“aucun pouvoir discretionaire”) to the implementing UN member states (Al-Dulimi, para. 117). The second prong was to qualify the fundamental rights protection offered by the UN. Unsurprisingly, the Strasburg Court found that the Iraq sanction regime, even after the establishment of a focal point, did not offer equivalent protection to the ECHR (Al-Dulimi, para. 118). It referred to the UN special rapporteur on the protection of human rights in combatting terrorism (report of 26 Sept. 2012) which had found even that the 1267-regime with its ombudsperson procedure fails to satisfy minimal international human right guarantees. A fortiori, said Strasbourg, the 1483-regime, which does not possess any ombudsperson, is deficient, and does not offer equivalent protection. The procedural deficiency cannot be compensated by the domestic judicial procedure, because the Swiss Federal Tribunal had refused to scrutinize the merits (Al-Dulimi, para. 120). This means that the Bosphorus-presumption of conformity with the ECHR was not applicable to Switzerland’s behaviour. This, in turn, meant that the ECtHR would scrutinize in full whether the Convention had been respected or not.

So the Court went on, fourth, to examine whether the right of access to an impartial court (Art. 6 ECHR) had been denied. It acknowledged that this right is not absolute, but may be limited under two conditions: there must be a legitimate aim and the limitation must be proportionate to that aim. While international cooperation and compliance with the Security Council in the fight against terrorism or rogue states is a legitimate aim (Al-Dulimi, paras 127-128), the denial of any judicial review was disproportionate to reach that objective. In fact, in the eyes of the Court, the right of access to a tribunal was completely robbed of any substance (ibid., paras. 129-134). Art. 6 of the Convention was therefore violated. Given the circumstances, the applicant was however not awarded just satisfaction (ibid., paras 141-145).

Dissenting Judge Sajó: No imputation to Switzerland?

Dissenting Judge Sajó opined that the complaint should have been dismissed as incompatible ratione personae (opinion en partie dissidente du juge Sajó, p. 65). What he meant was that the implementing measures were actually not attributable to Switzerland and that therefore “jurisdiction” in the sense of Art. 1 ECHR was lacking. The Chamber’s majority, however, found that the measures prescribed by the Security Council were generally implemented by a domestic executive order; and in the specific case, the confiscation of the bank funds was realized by an administrative decision (a Swiss decision of 16 Nov. 2006). There, the alleged violations of the ECHR were, according to the majority, imputable to Switzerland (Al-Dulimi, para. 91).

It is submitted here that Sajó’s view has some merit. Switzerland’s (or other UN members’) implementing measures could be qualified as internationally wrongful acts attributable to the UN. In fact, UN SC Res. 1483, para. 23 (2003) itself strictly obliged UN member states e.g. to prohibit trade or to freeze assets. The human rights problems seem to root directly in the decisions. Members’ implementing measures realize those violations, but they are not their actual cause. Normatively, attribution of members’ conduct at least also to the Security Council seems appropriate.

One might think of attributing the members’ wrongful conduct to the UN itself under the heading that members, when implementing binding decisions of the UNSC act as ’an organ or agent’ of the UN (Art. 6 Draft Articles on the Responsibility of International Organisations; Report of the ILC, 63d sess., GA OR 66, suppl. no. 10 (A/66/10) (‘DARIO 2011’)) − but this seems to overstretch the functionality of the members. Attribution could be further made under the heading that state organs are placed at the disposal of the UN (Art. 7 DARIO 2011). But this will rarely or never be the case because of the UN’s lack of ‘effective control’.

The more appropriate option is the derivative or ancillary responsibility of the UN for an implementing act of a member which constitutes an international wrongful act of the latter. The ILC Draft calls this responsibility ‘in connection’ with an act of a state. Such an ancillary responsibility of the UN can be established if the UN could be said to aid or assist (Art. 14 DARIO 2011), to direct and control (Art. 15 DARIO 2011), or to coerce a member (Art. 16 DARIO 2001) in the commission of a wrongful act. Indeed, the ILC commentary states that ‘the adoption of a binding decision on the part of the international organization could constitute, under certain circumstances, a form of direction or control in the commission of an internationally wrongful act’ (referring to the title of Chapter IV DARIO 2011). This strategy of responsibilizing the UN seems adequate to face the danger of double evasion, namely the problem that the Council will try to evade responsibility by pointing to the members on which it must rely for implementation, while the members will attempt to rid themselves from responsibility by claiming that they are bound to implement a Security Council decision with no choice. Note that this ‘connected’ construction implies a dual responsibility of both the member states and the Council.

… Or rather blaming Switzerland (and other UN member states) so as to pressure member states to resist the Security Council?

Is it really fair, as the three dissenters and Judge Sajó imply, to liberate the UN member states? From the perspective of the individual it is important to hold the member states accountable, because leaving the states from the hook would mean to let the addressee of the sanctions stand in the rain without any legal recourse – given the non-availability of independent review of Security Council decisions.

Also from a strategic, law reform perspective, responsibilizing the states could be laudable because it should incite them to press for the improvement of mechanisms for reviewing targeted sanctions. On the other hand, there hardly seems to be any hope that the Security Council members, especially the P5, will agree to any ‘real’ external review. “Condemning” the member states to continue their diplomatic efforts in that direction, although these will be most probably futile anyway, seems unfair, too.

Another strategy for member states, besides the political-diplomatic strategy, could be to scrutinize more closely the legality of Security Council resolutions, and to refuse to carry them out in the extreme case. The premise is here that the Security Council is bound by international law (or at least by parts of international law). This applies also to decisions taken under Chapter VII. The reason is that, although emergency measures under Chapter VII need a high amount of flexibility, unhampered by debates about lawfulness, the Security Council may not derogate from general international law if this has the effect of curtailing the legal position of third parties, especially individuals.

Legal limits might be the entire Charter itself, or (as Art. 24(2) UN Charter states), the ‘Purposes and Principles of the United Nations’ (which are enshrined in Art. 1 and 2 UN Charter), or finally – as a minimum – ius cogens (see for a detailed examination Anne Peters, ‘Art. 25’, in: Bruno Simma/Daniel-Erasmus Khan/Georg Nolte/Andreas Paulus (eds), The Charter of the United Nations: A Commentary on the UN Charter (Oxford: Oxford University Press 2012), vol. II, p. 787, MN 56 et seq.). The practice of states and of the Security Council itself is not conclusive in this regard, while a trend in the direction of an increasing acceptance of legal limits in principle, and of an increasing tightening of those legal bonds, can be noted.

But, and this is crucial, holding the Security Council bound to respect international law does not inevitably mean that the legal standards are identical as for states. Human rights, when opposed to the Council, do not constitute a precise legal limit for decisions, but rather function as guidelines. Moreover, Council decisions may, just as governmental measures, lawfully limit or restrict international human rights. Roughly speaking, restrictions are permissible if they serve a legitimate objective, have a legal basis, and are proportionate to the end. The United Nations’ objectives are legitimate ends in that sense. Also, the Security Council decisions themselves normally constitute a sufficient legal basis. The requirements of (democratic) legitimacy, foreseeability and accessibility which are demanded for the law of a state must be modified when applied to Council decisions. Finally, the very high importance of the Council decisions’ objective of securing world peace generally allows quite incisive curtailments of human rights. Council decisions will therefore normally satisfy the human rights law-requirement of proportionality. Any assessment of a Council decision affecting human rights crucially involves a balancing of conflicting goods. Such an assessment will often reach the conclusion that the Council has admissibly restricted the exercise of human rights and that therefore an impugned Security Council decision was legal. Most importantly, Security Council decisions enjoy a presumption of legality (and of validity) which can only be rebutted if two conditions are met: When the violation of international law was manifest and when it concerned an international rule of fundamental importance

The at least equally important question then is, whether domestic courts, as in our case, the Swiss Federal Tribunal, should be allowed (or even required under international law), to “enforce” those legal limits, by allowing or mandating their state not to carry out a problematic Council decision. The Swiss Federal Tribunal goes, as did the European General Court in 2005 (EU General Court (formerly Court of the First Instance), 21st September 2005, case T-315/01, Kadi v Council of the EU & Commission of the EC), in that direction, by holding open the door for not carrying out resolutions which violate ius cogens (BGE 2A.783/2006, para. 9.2.).

But of course this is a slippery slope. On the one hand, ius cogens is too narrow, given the fact that the right of access to the judiciary does not belong to the small group of peremptory norms. On the other hand, reclaiming an ultimate right of resistance, a right of refusal, can easily be used by UN member states as a pretext for non-compliance. Do we really want Syrian courts to refuse to carry out a potential Security Council resolution ordering the state to conduct investigations about crimes against humanity?

Outlook

Strangely, Al-Dulimi was an ECtHR-chamber decision. Apparently (as the dissent notes; see p. 70 of the judgment), Switzerland had objected to a relinquishment of jurisdiction of the Chamber in favour of the Grand Chamber, although this case appears to raise “a serious question affecting the interpretation of the Convention” (in the sense of Art. 30 ECHR).

The Chamber of the second section was, however, divided. The finding of admissibility (imputation of the confiscation to Switzerland) and of a violation of Art. 6 ECHR, was carried only by a minority, by three out of seven members. Three dissenting judges found no violation of Art. 6 ECHR, because they assumed that priority must be given to the Security Council resolutions over conflicting human rights obligations, by virtue of Art. 103 UN Charter. The decisive vote came from Judge Sajó who would have preferred not to impute the confiscation to Switzerland in the first place. Overall, thus, the chamber’s “real” majority points the way out: No responsibility of UN member states for violations of the ECHR if they have no leeway. The contradiction between the views of the majority of individual judges and the outcome of the case calls for clarification by the Grand Chamber.

But: Leaving the states “from the hook” – either through non-imputation or by virtue of Art. 103 UN Charter – (the revealed message of the secret majority of Al-Dulimi) also screams for responsibilizing the UN itself with help of better mechanisms for reviewing potential procedural flaws and substantive errors in the course of imposing targeted sanctions. The quest for deepening the ombudsperson mechanism by further strengthening the powers of the ombudsperson or establishing a different type of review, and by broadening it beyond the 1267-regime, remains as urgent as ever after Al-Dulimi.