The iniquities of international terror blacklists.
One of the few heroes of Conor Gearty’s “Liberty and security” is Miguel Poiares Maduro, a young Portuguese lawyer who in 2003-09 served as one of eight advocates general at the European Court of Justice in Luxembourg.
Maduro was asked to provide a non-binding expert opinion in the case of Yassin Abdullah Kadi, a Saudi national who had challenged his blacklisting by the United Nations, and later by the European Union, as an alleged supporter of al-Qaeda. When Maduro delivered his opinion to the Court, in January 2008, it was, according to Gearty, “one of those remarkable moments when an important figure challenges in simple and clear language an orthodoxy that had appeared unimpeachable until the very moment of its being toppled”.
Maduro found that the EU’s rights protections did apply to those blacklisted by the EU after they had first been blacklisted by the UN – a conclusion from which both the European Court of First Instance and, more surprisingly, the European Court of Human Rights had shied away. The Kadi case, Gearty writes, gave the European court its “finest moment” in the “heroic” fight against the international blacklisting regime.
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What Maduro, who is currently director of the Global Governance Programme at the European University Institute in Florence, was responding to was the creation by the United Nations of a sanctions regime bereft of fairness or due process, where a government’s mere suspicion could deprive a man of his property and his right to travel, without recourse to appeal or even a right to hear the evidence. The development of that regime had begun well before 11 September 2001, but intensified after the terrorist attacks of that day against the United States. It was Kadi’s blacklisting by the EU that gave him recourse to a legal procedure that is unavailable in the UN system.
Last week (18 July), the ECJ delivered its final judgment in the case, ending more than a decade of litigation. The Court had followed Maduro’s reasoning and in 2008 delivered a judgment against which the European Commission, the Council of Ministers and the UK appealed. After the 2008 judgment, the Commission served Kadi with Liberty and security a summary of the reasons for his blacklisting – and he was promptly re-listed.
This time around, in its final judgment, the Court left no doubt as to the merits of the case. “None of the allegations presented against Mr Kadi in the summary provided by the [UN] Sanctions Committee are such as to justify the adoption, at European Union level, of restrictive measures against him, either because the statement of reasons is insufficient, or because information or evidence which might substantiate the reason concerned, in the face of detailed rebuttals submitted by the party concerned, is lacking,” the ECJ ruled.
What is stunning about the Kadi case, and a few similar cases such as that of the Iranian opposition group, the People’s Mojahedin Organisation of Iran, is that the abuse occurred in a system that is supposed to be the very embodiment of the rule of law. The scandal over worldwide spying by the National Security Agency has thrown a spotlight on the US; at the heart of Gearty’s discussion is a far less prominent aspect of the dominance of security concerns over liberty – international legal regimes. That civil liberties are overwhelmed by the national security state has been documented and debated at length. Gearty’s book focuses on liberty being overwhelmed by international security. These parallel strands Gearty describes as “neo-democracy” – “a system of quasi-criminal law with some of the appearances of freedom but precious little of its substance”.
“Sadly it is emerging from within the very citadel of universal liberty and security, the UN itself,” he writes.
Liberty and security by Conor Gearty
146 pages
Polity.
€19
It is a sad reflection on that move toward “neo-democracy” that Kadi was de-listed not as a consequence of his 2008 court victory, but rather on a recommendation from the UN’s newly-appointed ombudsman – an institution created precisely to maintain the secretive sanctions procedure by wrapping it inside a thin layer of procedural protections.