Terror Financing — Asset Freezing, Human Rights and the European Legal Order
| Published date | 01 June 2011 |
| DOI | 10.1177/203228441100200206 |
| Date | 01 June 2011 |
| Subject Matter | Article |
New Journal of Eur opean Crimina l Law, Vol. 2, Issue 2, 2011 175
ARTICLES
teRRoR FInAnCInG – Asset FReeZInG,
HUMAn RIGHts AnD tHe eURoPeAn
LeGAL oRDeR
J V*
ABSTRACT
is article discusses the implication s of the UN Security Council’s asset freezing regime
on the EU legal order and on the rights of target ed individuals and entities.
e landmark judgment by the Europea n Court of Justice in the Kadi case1 accounts,
in a conclusive manner, for the u neasy relationship bet ween security c onsiderations
and human rights as well as for the complex interaction bet ween the UN Charter and
EU l aw.2 e carefully contemplated a nd well-bal anced judgment maintai ned the
Court’s func tion as a rm and faithful defender of the EU’s internal legal order. e
judgment marks t he remarkable culmination of a s eries of events in which a number
of controversial UN initiatives had given rise to serious public criticism a nd brought
a number of prominent cases before the EU court s.
Yassin Abdul lah Kadi is a resident of Jedd ah in Saudi Arabia and a prosperous
businessman w ith global na ncial interests and widespread philanthropic ac tivities.
He once had links with Usama bin Laden, which me ans that he is under suspicion of
* Professor of Cr iminal Law, Facu lty of Law, Universit y of Copenhagen: http://jura.ku.dk /jv. Leader
of the European a nd International Cri minal Law Resea rch Group: http://jura.ku.d k/eicrim.
1 Joint cases C-402/05 P & 415/05 P, Kadi & Al Barakaat International Foundation v Counc il and
Commission, referred to in t he following as Kadi.
2 Following the entry into force of the Lisbon Treaty, the term ‘Commun ity law’ is only relevant when
reference is made to cert ain part s of the ac quis promulgated before 1 Decemb er 2009. In order to
disting uish bet ween UN member st ates and EU Member States, the lat ter are denoted by initial
capitals in t he following.
Jørn Vestergaard
176 Intersentia
funding Al-Qaeda activities.3 In October 2 001, Mr Kadi ’s name was added to the
UN’s Consolidated List of individuals and entities whose nancial assets, etc. are to be
frozen pursuant to the Security Counci l’s resolutions SCR 1267 (1999) and SCR 1333
(2000).4 Mr Kadi’s name remained on the list throughout a number of subsequent
updates. e same happened to the Al Barakaat International Foundation, an
organisation that , among other activities , operates as a hawala, i.e. a bank-like
undertak ing that transfers money to recipients in countries t hat do not have a stable
and reliable banking system. Both Mr Kadi and Al Bara kaat were instantly entered on
the list est ablished by the EU as part of the implementation of the Security Council’s
anti-terror initiatives. Both part ies later acted as appellants in the joint cases on which
the ECJ passed judgment on 3 September 20 08.
By promulgating SCR 1267 (1999), the UN Securit y C ouncil condemned the
continued use of Afghan terr itory for the sheltering and training of terrorist s and the
planning of terrorist ac ts. In particular, the Secur ity Council condemned the Taliban
for continuously providing a safe haven for Usama bin Laden, as well as for allowing
bin Laden and others assoc iated with him to operate a net work of terrorist t raining
camps from Taliban-controlled territory and to use Afghanist an as a base from which
to sponsor international terroris t operations. e resolution contained a requirement
that bin Laden and his associates be surrendered to the appropriate national authorities
with a view to their criminal prosecution. In order to secure t he ful lment of t his
requirement, all UN member st ates were, among other things, required to free ze
funds and other nancial resources that were related, di rectly or indirectly, to the
Taliban. Access to these a ssets and resource s would hereaer only be allowed in
exceptional circumstances on the grounds of humanitarian need, w ith the proviso
that each i ndividual case must be authorised by a comm ittee set up for that purpose
(the Resolution 1267 San ctions Committee). Said comm ittee was also to monitor UN
member states’ compliance with t heir obligations under the resolution.5
Following the adoption of SCR 1333 (2000), means relating to bin Laden and his
associates, including members of Al-Qaeda , were incorporate d into the requirement to
freeze assets , etc. Further, the Sanctions Committe e w as charged with drai ng and
maintaini ng a lis t of indiv iduals and entities designated as asso ciates of bin Laden and
3 With var ying resu lts, Mr Kadi has been both a plaint i and a defendant in cases concerning the
freezing of as sets in several cou ntries, includin g Switzerland, Turkey and t he US.
4 ese resolutions, which are binding on UN member states, were adopted pursuant to Chapter VII of
the UN Charter on ‘Action wit h respect to reats to the Pea ce, Breaches of the Peace, and Acts of
Aggression’ (see Artic les 41 a nd 42, and Art icle 25). e resolutions d emonstrate how the Se curity
Council has developed targeted sanctions (‘smart’ or ‘designer’ sanctions) as a supplement to the more
traditional sanc tions, such as weapons embargoes a nd travel restrictions. Sanc tions were previously
directed at st ates, but with SCR 1333 (2000), organ isations and indiv iduals became t argets too.
5 Plenty of i nformation ca n be fou nd on ww w.un.org/committees/sc/1267, including t he Sanctions
Committee’s guidel ines (updated mo st rec ently on 22 July 2010). All members of the Security
Council have a sea t on the Committee.
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