I. INTRODUCTION
The UN Security Council's practice of targeted sanctions has significant repercussions for the enjoyment of human rights by targeted individuals. Under this practice the Security Council creates an obligation for all UN Member States to take sanction measures, such as the freezing of assets and the imposition of travel bans, against specific individuals and private entities, as designated by the sanctions committees.Footnote 1 From a due process perspective it is problematic that the targeted individuals are not afforded any opportunity to pursue a judicial or other effective remedy. Currently an individual may bring an application for delisting to the UN Office of the Ombudsperson; however this is very unlikely to qualify as an effective remedy.Footnote 2 Moreover, the Ombudsperson can take complaints only from individuals targeted under the al-Qaida sanctions regime.Footnote 3 Therefore, individuals who are targeted by other sanctions regimes cannot make use of this procedure.Footnote 4 In addition, when asked to decide upon the lawfulness of the implementation of a sanction measure, domestic courts cannot review the decision to list a particular individual because they do not have access to the confidential information underlying an individual's designation. Furthermore, any remedy possibly provided for by these courts is bound to remain of limited effect. Domestic courts can decide on the validity of the domestic implementation of the sanction measures against a particular individual, but they cannot remove that individual from a sanction committee's list.
As a consequence, States are confronted with a norm conflict between, on the one hand, an obligation to obey a binding decision of the Security Council and, on the other hand, an obligation to observe international human rights treaties. Under these treaties States are obliged to guarantee a targeted individual certain rights such as the rights to peaceful enjoyment of property, respect for private and family life, access to court, and an effective remedy. Since the relevant provisions in the applicable Security Council resolutions do not leave States any scope of discretion to implement the sanction measures in accordance with these human rights obligations, they are placed in a position in which they cannot observe both international obligations at the same time. This norm conflict surfaces when a targeted individual challenges the domestic implementation of the sanction measures before domestic and regional courts. These courts are then required to address the conflict.
Solving this issue is a particularly challenging task for the European Court of Human Rights (ECtHR), because it would be difficult for the Court to accept the consequences of the rule of precedence laid down in Article 103 of the UN Charter.Footnote 5 According to this provision, obligations under the UN Charter prevail over all other obligations States may have under any other international agreement.Footnote 6 In principle, this includes obligations following from human rights treaties such as the European Convention on Human Rights (ECHR).Footnote 7 However, for a court that is specifically established to supervise State parties' observance of human rights law, the explicit acknowledgment of this interpretation would not come easily.Footnote 8 In addition, it is impossible for a court such as the ECtHR to follow the dualist approach that is taken by some domestic courts. Courts that adopt such approach essentially consider their own domestic legal order in isolation from the international legal order.Footnote 9 The ECtHR cannot follow a dualist approach since its own legal order is inherently part of the international legal order; the two cannot be separated. The rule of precedence in Article 103 UN Charter is therefore clearly and unavoidably applicable to the present collision of norms. How does the Court seek to solve this conflict?
The ECtHR has had two opportunities to discuss the issue of the Security Council's targeted sanctions. In the cases of Nada (Grand Chamber judgment)Footnote 10 and al-Dulimi (Chamber judgment)Footnote 11—both against Switzerland—the Court was asked to evaluate the lawfulness of the domestic implementation of sanction measures. In the following section II, this article will briefly set out the relevant facts and the Court's decisions in these two cases. Section III will then discuss and analyse the Grand Chamber's application of the presumption of compliance and the technique of harmonious interpretation in the Nada case. Section IV will critically assess the Chamber's divergent approach of employing an equivalent protection doctrine in the al-Dulimi case. That case was distinguished from the Nada case on the basis of an alleged difference in the scope of the discretion left by the relevant Security Council resolution. Section V will comment on and reject this distinction. Finally, section VI will contribute to the analysis of the difference between the two cases regarding the application of the right to an effective remedy, and the right of access to court.
II. THE TWO CASES: NADA AND AL-DULIMI
The case of Nada concerned an Egyptian businessman targeted by the sanctions regime established under Security Council resolution 1267.Footnote 12 As a consequence, Switzerland was required to freeze his assets and to impose a travel ban. This latter measure effectively led to a house arrest, since he was living in a 1.6 km2 Italian enclave in Switzerland.Footnote 13 Mr Nada complained before the ECtHR that the travel ban made it difficult for him to consult his doctors and to visit his friends and family.Footnote 14 In addition, Mr Nada argued that being designated as an alleged supporter of terrorism constituted an attack on his honour and reputation.Footnote 15
The Grand Chamber found a violation of Mr Nada's right to respect for his private and family lifeFootnote 16 because Switzerland had not sufficiently taken into account the realities of the case when it implemented the sanction measures against Mr Nada.Footnote 17 In addition, the Court found a violation of the right to an effective remedyFootnote 18 because Mr Nada had not been granted effective means to obtain a removal from the blacklist.Footnote 19
The case of al-Dulimi concerned an Iraqi national, allegedly the finance manager for the Iraqi secret services under the regime of Saddam Hussein.Footnote 20 His assets, and those of a company of which he was managing director, were frozen following a Security Council resolution that imposed sanction measures against the former Iraqi regime.Footnote 21 These measures were then implemented against him by Switzerland. In contrast to the measures implemented against Mr Nada, Switzerland was required to not only freeze Mr al-Dulimi's assets, but also to confiscate and transfer them to the Development Fund for Iraq.Footnote 22
It is here relevant to note that the Chamber found the lack of an avenue by which Mr al-Dulimi could challenge these measures constituted a breach of his right of access to court, particularly since no equivalent protection is afforded at the UN level.Footnote 23
III. HARMONIOUS INTERPRETATION
In the Nada case the Grand Chamber relied on the principle of harmonious interpretation to solve the (apparent) conflict between the international norms involved.Footnote 24 This principle stipulates that if a provision creating an international obligation leaves room for interpretation, this latitude should be used to construct a meaning of that provision which is in harmony with the provision that created the allegedly conflicting obligation. With this technique the Court was able to solve the conflict between the international obligations without pronouncing on their mutual hierarchy. This principle of harmonious interpretation is endorsed by the general presumption against normative conflict in international law.Footnote 25 From this perspective, courts may presume that a State's obligations under one international instrument were not intended to conflict with obligations under another. Support for this approach can be found in the general rule on interpretation contained in the Vienna Convention on the Law of Treaties.Footnote 26 This rule states that for the purpose of interpreting the meaning of a treaty, ‘any relevant rules of international law applicable in the relations between the parties' shall be taken into account, together with the context.Footnote 27
Subsection A will discuss the Court's application of the principle of harmonious interpretation, specifically in the context of an obligation created by the Security Council under Chapter VII. Subsection A will also introduce the doctrine of presumption of compliance. Subsection B will critically comment on the Court's rebuttal of the presumption in the case of Nada, and will analyse the effect of that rejection.
A. Interpretation in Context and Presumption of Compliance
The ECtHR first pronounced on how to solve a conflict between the implementation of an obligation created by the Security Council and an obligation under the ECHR in the case of al-Jedda. This case concerned an individual who was interned in Iraq by UK forces, acting within a Multi-National Force (MNF), allegedly upon authorization by the Security Council.Footnote 28 Interning this individual, which was done for reasons of security, was in direct conflict with his right to liberty under Article 5(1) of the ECHR. The Court solved that issue by relying on the principle of harmonious interpretation.Footnote 29 It presumed that the obligations created by the Security Council were not intended to be in conflict with fundamental principles of human rights law.Footnote 30 It constructed this presumption by interpreting the resolution concerned in the context of the UN Charter. The Charter holds that the Security Council ‘shall discharge its duties in accordance with the Purposes and Principles of the United Nations'.Footnote 31 The Court established that, in addition to maintaining international peace and security, the purposes of the UN also include encouraging respect for human rights and fundamental freedoms.Footnote 32 From this it derived that it must be presumed that the Security Council does not intend States to take measures that would result in a breach of their obligations under international human rights law.Footnote 33 The Court thus determined that if the meaning of a particular provision in a resolution is unclear, the interpretation that must be followed is that which effectively harmonizes the obligation created by the Security Council with the State's obligations under international human rights law. It added, however, that the presumption could be rebutted when the Security Council uses clear and explicit language to that effect.Footnote 34
In the al-Jedda case a letter annexed to the relevant Security Council resolution explicitly mentioned internment as one of the options available to the MNF to counter ongoing threats to the security of Iraq.Footnote 35 Even so, the ECtHR did not find that the resolution provided the legal basis for Mr al-Jedda's internment. The Court argued that the resolution itself did not refer to the possibility of internment; the preamble to the resolution expressed the commitment of all forces to act in accordance with international law, which would include the ECHR; and the UN Secretary General (SG) explicitly condemned the use of security internment by the MNF in Iraq.Footnote 36 Therefore, the Court established that the impugned Security Council resolution did not explicitly or implicitly require the UK to put individuals who are regarded as posing a risk to the security of Iraq into ‘indefinite detention without charge’.Footnote 37 As a consequence, the Court found no conflict to exist between the UK's obligations under the Security Council resolution and the ECHR.Footnote 38
B. A Rebuttal of the Presumption of Compliance and its Subsequent Effect
As previously mentioned, the presumption of compliance can be rebutted when the Security Council uses sufficiently clear and explicit language to that effect. It could be argued that it is then for the Security Council to squarely confront its actions and to accept the political cost of superseding international human rights law.Footnote 39 In the al-Jedda case the Court applied a very strong presumption which did not appear to be easily rebutted.Footnote 40 The Court even considered the explicit referral to the option of internment in the letter annexed to the relevant resolution as insufficient to rebut the presumption.Footnote 41
However, in the subsequent case of Nada, the Grand Chamber concluded that the presumption was rebutted in regard to obligations upon Switzerland, which followed from Mr Nada's right to respect for his private and family life.Footnote 42 The Court concluded that the Security Council employed clear and explicit language when it imposed an obligation upon States to take measures that were capable of breaching individuals' human rights.Footnote 43 Yet the high threshold applied in the al-Jedda case did not appear to be so strictly adhered to. The Court did not invoke particularly strong evidence of the Security Council's intention to override international human rights law. It relied on a provision in Security Council resolution 1390 (2002) that merely imposes the obligation to implement the impugned sanctions.Footnote 44 Nowhere in this provision did the Security Council explicitly consider how these measures should relate to States' obligations under international human rights law.Footnote 45 Thus the presumption was rebutted by implication only. A provision from resolution 1267 (1999) to which the Court also referred, merely called upon States to act in accordance with that resolution, notwithstanding the existence of any rights conferred by any international agreement, contract, licence, or permit.Footnote 46 This very general statement does not specifically address the position of international human rights law. Moreover, that resolution was enacted long before the adoption of the measures at issue.Footnote 47 If the Court had instead considered the preamble of resolution 1624 (2005), then it might have come to a different conclusion. That preamble holds that ‘[s]tates must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights law’.Footnote 48
The Court did not consider what would be the effect of a rebuttal of the presumption of compliance. It simply continued by examining whether the obligation created by the Security Council resolution left sufficient scope for Switzerland to implement that obligation in accordance with its obligations under the ECHR.Footnote 49 The Court considered that Switzerland was under an obligation to harmonize both obligations as far as possible. This obligation to harmonize appears to reach further than the obligation considered in the earlier al-Jedda case, where the Court held that the State must choose the interpretation of a Security Council resolution that is most compatible with its obligations under the Convention.Footnote 50 However, the case of Nada concerned an obligation upon Switzerland to adapt its implementation of the obligation created by the Security Council as far as possible to the designated individual's specific situation.Footnote 51 This is not only a matter of interpretation. Rather, it puts an obligation of conduct upon States when implementing Security Council resolutions. In that regard, the Court found that Switzerland had failed to sufficiently mitigate the effects of the sanctions regime on Mr Nada.Footnote 52 For example, Switzerland could have informed the Sanctions Committee sooner of the findings of a criminal investigation which concluded that the allegations against Mr Nada were unfounded,Footnote 53 and it could have assisted Mr Nada in filing petitions with the Sanctions Committee for exemptions from the travel ban.Footnote 54 The Court concluded that Switzerland could not validly confine itself to relying on the binding nature of the obligation created by the Security Council. It should have shown to the Court that it had taken into account the particular circumstances of the specific case when it applied the travel ban to Mr Nada.Footnote 55
The Court concluded that by arriving at these findings it was dispensed from determining the question of hierarchy between an obligation created by the Security Council and an obligation under the Convention.Footnote 56 It therefore remains unclear what the Court actually considers to constitute the effect of a rebuttal. It would be logical to reason that obligations under a Security Council resolution would prevail over the ECHR if the Security Council intends it to have that effect. However, whether that is really what the Court has in mind remains, for the moment, a matter for scholarly interpretation.Footnote 57
What is clear is that the Court did not engage with the essence of the matter. It did not evaluate whether the measure of the travel ban itself constituted a lawful interference with Mr Nada's enjoyment of the right to respect for his private and family life. It only considered what Switzerland could have done differently within the confines of the obligation imposed upon it by the Security Council.Footnote 58 By doing so the Court left domestic action, as far as it strictly implemented the obligations created by the Security Council, outside its scope of scrutiny. This may add to the suggestion that Mr Nada's right to private and family life was indeed set aside, in so far as required by the relevant Security Council resolution.
With regard to Mr Nada's right to an effective remedy, as laid down in Article 13 of the ECHR, the Court arrived at an entirely different finding.Footnote 59 It considered that nothing in the relevant resolutions prevented Switzerland ‘from introducing mechanisms to verify the measures taken at national level pursuant to those resolutions'.Footnote 60 Although the Court did not explicitly state this, it appeared to find that, with regard to the right to an effective remedy, the presumption of compliance was not rebutted. If this is indeed the case, then it would mean that the Court did not think that the Security Council intended to override the targeted individual's right to an effective remedy, and that the obligation under the UN Charter should have been interpreted in harmony with the obligation under the ECHR.
Alternatively, the Court might have had in mind another doctrine from its jurisprudence when considering the right to an effective remedy. It concluded that Mr Nada's right had been violated after having established that he had no effective means available, domestically or at the UN level, to have his name removed from the Security Council's sanctions list.Footnote 61 This investigation into alternative options, albeit superficially, is analogous to the equivalent protection doctrine, which will be explained in the following section. However, this would not have been possible within the logic of the Court's own reasoning in the Nada case. It had established that the relevant obligations created by the Security Council left States with scope for discretion,Footnote 62 whereas the equivalent protection doctrine can be applied only in situations where an international organization has imposed a strict obligation upon a State.Footnote 63
IV. EQUIVALENT PROTECTION DOCTRINE
The equivalent protection doctrine should be clearly distinguished from the interpretative technique of the presumption of compliance. The latter is a form of harmonious interpretation, which is based on the general assumption in international law that States do not intend to enter into conflicting obligations.Footnote 64 In contrast, the equivalent protection doctrine, which defers towards the work of international organizations, has been developed by the ECtHR for the benefit of international cooperation.Footnote 65 Whether the Court grants such deference in a specific instance depends upon its assessment of the quality of human rights protection within the international organization at issue. If the Court considers that the organization protects human rights in a manner at least equivalent to the protection offered by the Convention, it will presume that if it did no more than implement a strict obligation, the State concerned did not act in contravention to the ECHR.Footnote 66 If a presumption of equivalent protection is established, this can only be rebutted if in a particular instance the protection is shown to be manifestly deficient.Footnote 67
The Court applies the equivalent protection doctrine only when it has been asked to review a given State's conduct that was strictly required as a result of that State's obligations following from its membership of an international organization. Since the Chamber distinguished the al-Dulimi case from the Nada case on the ground that the obligations created by the Security Council in regard to Mr al-Dulimi left States no scope of discretion,Footnote 68 it had reason to apply the equivalent protection doctrine. In applying this doctrine to the case of al-Dulimi the Chamber engaged in a review of the measures of protection available to the targeted individuals at the UN level. Here, it relied upon a recent report submitted by the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. Making reference to this report, the Court held that the protection provided by the Ombudsperson procedure does not afford targeted individuals sufficient guarantees.Footnote 69 The Court then continued to deduce that the mere Focal Point available to Mr al-Dulimi, which obviously affords a lower level of protection than the Ombudsperson,Footnote 70 can a fortiori never provide sufficient guarantees.Footnote 71 Accordingly, the Chamber concluded that (at least for the moment) no equivalent protection could be presumed at the UN level.Footnote 72 Therefore, no deference was granted, and the Chamber ruled on the merits of the complaint.Footnote 73 It is quite remarkable that the Chamber applied the equivalent protection doctrine – which has been developed primarily in the context of ECtHR's relationship with the EUFootnote 74 – in a similar fashion to a situation involving a decision taken by the UN Security Council. This is especially so since, in previous case law, the ECtHR appears to have arduously avoided applying such a test in that context due to the special task and position of the Security Council.Footnote 75 Furthermore, it is hardly conceivable that an organization such as the UN, which is highly intergovernmental in nature, would ever be able to provide a measure of equivalent protection to individuals directly affected by Security Council resolutions.Footnote 76
In addition, as regards the Grand Chamber's decision in Nada, it does not appear sound to apply the equivalent protection doctrine to a situation concerning a Security Council decision that leaves States no scope of discretion. It would be more cogent to consider such a strict obligation to constitute a rebuttal of the presumption of compliance, a point that will be developed further in the following section. Furthermore, if the Chamber's decision can be understood to mean that the presumption of compliance is only employed in cases where there is scope for discretion, the Court would always assess a respondent State's conduct that is not necessarily obligated by the Security Council. In such a situation, within the latitude left by the scope of discretion there is an opportunity for States to implement the Security Council resolution in accordance with their other obligations; a conflict between the international norms involved is therefore not necessary and inevitable. It cannot reasonably be maintained that pursuant to Article 103 of the UN Charter the respondent State was under an obligation to give precedence to an obligation created by the Security Council over obligations under other international agreements. Therefore a rebuttal of a presumption would not be relevant because the respondent State could have acted otherwise within the scope of their discretion.
V. SCOPE OF DISCRETION AND ROOM FOR INTERPRETATION
The reason why the Chamber in the al-Dulimi case did not find the lack of scope of discretion to constitute a rebuttal of the presumption of compliance, but rather an indication for applying the equivalent protection doctrine, is that the Court distinguishes between situations in which there is room for interpretation and those in which there is scope for discretion. The use of clear wording by the Security Council, which leaves no latitude for interpretation, and therefore no possibility for harmonization with obligations under international human rights law, will prompt the Court to decide that the presumption of compliance is rebutted, as it did in Nada. However, a lack of scope of discretion would result in the Court employing an equivalent protection doctrine, as exampled by the Chamber in al-Dulimi. Nevertheless, this distinction between the scope of discretion and room for interpretation is difficult to maintain; the two concepts are closely intertwined. Determining what scope of discretion is left by a Security Council obligation is itself dependent upon an interpretation of the language employed in the particular provision of the relevant resolution.Footnote 77 Therefore, using the logic of the Grand Chamber's application of the presumption of compliance in the Nada case, an obligation that leaves States no scope of discretion would necessarily have to result in a rebuttal of that presumption.
The Court, however, uses a different approach to determine the scope of discretion left by obligations created by the Security Council. When the Grand Chamber considered in its Nada decision that the Security Council had left States some scope of discretion, it did not take account of the text or aim of the resolutions.Footnote 78 Rather, it arrived at this result primarily by arguing that the UN Charter does not prescribe how States should implement Security Council resolutions.Footnote 79 This approach is not very convincing because if applied consistently every obligation created by the Security Council would leave States a scope of discretion, since all these obligations find their basis directly in the same provision of the UN Charter.Footnote 80 Plainly, this was not the outcome arrived at when the Chamber accepted, in the subsequent al-Dulimi case, that the obligation created by the Security Council left no scope for discretion.Footnote 81 Thus the Chamber is clearly not of the opinion that all obligations stemming from the UN Charter leave States with scope for discretion regarding their implementation.Footnote 82
Moreover, if the Security Council were to impose a clearly circumscribed obligation then any scope of discretion that might originate from the fact that the UN Charter does not prescribe how to implement that obligation would become illusory. States can then do no other but to engage in the conduct required. In the present instances the resolutions dictate that specifically prescribed measures must be taken against the designated individuals. This obligation leaves States no scope for discretion as to the result that should be achieved.Footnote 83 No matter what, the targeted individual's assets must be frozen and he must be stopped from travelling to other countries. As previously mentioned, compliance with these strict requirements may be impaired by providing the designated individuals with an opportunity for fair trial or an effective remedy. The outcome of an independent (judicial) review may very well be that the measures are found to be unjustified, disproportionate or otherwise illegal, and have to be terminated as a consequence. Therefore, despite the fact that the relevant resolutions remain silent on possibilities to afford due process guarantees while implementing sanction measures, this must be assessed as falling outside a State's scope of discretion. Genuinely and effectively providing these guarantees would necessarily mean considering the possibility that implementing measures could be annulled in respect of a particular individual,Footnote 84 and would therefore go against the obligation created by Security Council resolutions.
From this perspective it is also difficult to maintain that there is a distinction between the obligations created by the Security Council with regard to Mr Nada and those created with regard to Mr al-Dulimi.Footnote 85 When comparing the provisions of the two Security Council resolutions, a distinction based on the scope of discretion, as the Chamber employed in its al-Dulimi decision, is not immediately obvious. The distinction becomes even less apparent when the limitation of Mr al-Dulimi's right to a fair trial is compared to the limitation of Mr Nada's enjoyment of his right to an effective remedy; the relevant provisions are arguably significantly similar. Both resolutions merely decide that States should take the measures prescribed against the designated individuals.Footnote 86 The resolutions do not explicitly address the issue of a fair trial or an effective remedy, but it is clearly implied in the system of the centralized sanctions regime that the Security Council did not foresee such due process guarantees.Footnote 87 Providing these guarantees at a domestic level would automatically impair the effectiveness of the sanction measures, and would result in a fragmented application.Footnote 88 Therefore, considering the text and aim of the relevant resolutions, the sanction regimes should be viewed as leaving States no scope for discretion in their implementation. The cases of Nada and al-Dulimi therefore cannot be distinguished on this ground.Footnote 89
VI. RIGHTS TO A FAIR TRIAL AND EFFECTIVE REMEDY
As previously mentioned, the Grand Chamber in the Nada case did not find the application of the right to an effective remedy to be affected by the obligation created by the Security Council. It could be argued that this reasoning encouraged or mandated domestic courts to adopt a dualist approach in these instances.Footnote 90 Such an approach would most likely result in the annulment of domestic measures against the designated individual, because a review of the merits would not be possible.Footnote 91 Under a dualist approach, the right to an effective remedy would, in effect, prevail over the obligation created by the Security Council. Nevertheless, even if domestic remedies were successful for the individuals concerned they would provide the individuals with only limited relief. The domestic implementation measures may be annulled; yet the individuals would still remain on the Security Council's universally applicable blacklist.
Moreover, it is ambiguous what exactly a full application of the right to an effective remedy would entail, if it is accepted that the relevant material human right is set aside. The right to an effective remedy is intended to secure the independent domestic supervision of States' observance of other human rights.Footnote 92 It follows from its ancillary nature that if a certain human right is set aside by the Security Council the right to an effective remedy cannot be applied with regard to that particular human right. Or at least the working of the right to an effective remedy would be limited to guaranteeing a domestic review only of those aspects of the human right at issue that fall outside of the part suspended by the Security Council.
Indeed, in the Nada case the Court began by determining that the complaint was ‘arguable’Footnote 93 ‘in view of its finding of a violation of Article 8′.Footnote 94 However, as previously considered, the reason why the Court concluded that Article 8 was violated was that Switzerland could have done more within the confines of the obligation that was created by the Security Council. It assessed only the observance of duties that follow from Article 8, which were not affected by the obligation created by the Security Council.Footnote 95 As a consequence, any competent national authority conducting a review within the context of guaranteeing the designated individual an effective remedy would have to arrive at the conclusion that Article 8 of the ECHR is partly suspended. The national authority would therefore evaluate only the guarantee of the ‘residual’ obligations imposed upon the State. Accordingly, and contrary to the Court's reasoning,Footnote 96 it does not logically follow from the application of Article 13 of the ECHR that Mr Nada should have been afforded a judicial review of the original decision to designate him. Specifically, an assessment of the legality of the imposition of the travel ban itself is beyond the scope of protection provided by Article 8. Therefore an effective remedy in relation to that article could only concern a State's duty to take into account the particularities of a case when implementing that measure, and the efforts it undertakes to mitigate as far as possible the adverse effects on the designated individual.
Alternatively, it could be argued that the Security Council can only override the protection of human rights of individuals who are targeted justifiably. However, what does the option of rebuttal then entail, if it is still for domestic authorities to scrutinize the Security Council's findings in individual cases? If it was accepted that the Security Council could set aside obligations under international human rights law when it expresses its intention to do so, then a domestic authority that guarantees an effective remedy could in principle only scrutinize the protection of the (unaffected aspects of the) still applicable rights.
This would be different under Article 6 of the ECHR, which was invoked by Mr al-Dulimi. The right of access to court, as part of the right to a fair trial,Footnote 97 assumes to a considerable extent the function of the right to an effective remedy.Footnote 98 Both rights, in addition to being human rights themselves, play a functional role in ensuring the protection of (other) human rights.Footnote 99 They provide the procedural guarantees necessary to monitor the compliance with human rights law in individual instances.
An important difference, however, is that the right of access to court guarantees only the judicial protection of civil rights, not human rights. Whether there is a civil right (or obligation) within the meaning of Article 6 ECHR is derived from domestic law.Footnote 100 Yet many human rights have aspects that could be qualified as civil within the meaning of the right of access to court.Footnote 101 Relevant exceptions are possibly the right to liberty and security,Footnote 102 and the right to freedom of movement. Civil rights, being domestic in nature, cannot be set aside by an international obligation created by the Security Council, which pursuant to Article 103 of the UN Charter would prevail only over obligations under other international agreements. Therefore, in principle, rights and obligations under domestic law would fall outside its scope.Footnote 103 Accordingly, unless the right of access to court itself would be set aside or restricted in its application by the Security Council, it cannot be indirectly emptied of its meaning by overriding the civil rights concerned.
Finally, it has to be noted that as regards the possibility to ensuring a targeted individual's due process rights, a distinction must be made between individuals such as Mr Nada, on the one hand, and Mr al-Dulimi, on the other. The first is an individual allegedly involved in financially supporting international terrorism. Such allegations can often only be substantiated by relying on confidential material gathered by national intelligence agencies, which is not likely to be shared with the targeted individual or with foreign courts.Footnote 104 In contrast, the question whether Mr al-Dulimi was indeed the finance manager for the Iraqi secret services under Saddam Hussein is in principle publicly available information. In a cable made public by Wikileaks, the US State Department, which already in 2008 foresaw this decision by the ECtHR, asked for additional information on the allegations against Mr al-Dulimi. The cable notes that ‘Al-Dulimi denies he was ever a member of the Baath Party, and further denies he was “a director of investments for the Iraqi Intelligence Service” under Saddam Hussein’.Footnote 105 Therefore, the US Embassy in Baghdad was instructed to ask the Iraqis whether they could provide further information on what Mr. al-Dulimi did for the Saddam Hussein regime. According to the Iraqis it was publicly known that Mr al-Dulimi held the alleged position, and that he was one of the senior officials of the former Iraqi regime. This statement might not be sufficient, but perhaps some official documents would suffice. At least this makes it easier to organize a fair trial for individuals such as Mr al-Dulimi than for individuals such as Mr Nada. Since Mr al-Dulimi would clearly be in a position to know which allegations he needed to refute, the evidence underlying these allegations could be safely presented to him.Footnote 106
VII. CONCLUSION
The decisions by the ECtHR in the cases of Nada and al-Dulimi add to the existing jurisprudence that indicates that the European judiciary is not going to retreat easily in the struggle for the protection of human rights.Footnote 107 Rather, the courts are seeking full confrontation with the Security Council. This approach places Member States in an extremely difficult position; they are positioned between two conflicting international obligations, which are very difficult to harmonize. Still, this confrontational approach might eventually result in better protection at the UN level.Footnote 108 The Security Council, seeing its efficacy and efficiency of action undermined by substantial annulments of domestic implementations,Footnote 109 might be willing to adjust its measures to reflect the requirements of these courts.Footnote 110 However, for such approach to be effective these courts must maintain a dialogue with the Security Council. The Chamber's use of the equivalent protection doctrine in the al-Dulimi case might be an indication that it is prepared to engage in such a dialogue.Footnote 111 Yet the difficulty remains that any form of equivalent protection at the UN level is very unlikely to ever be achieved in respect of individuals who are directly affected by a Security Council resolution. It would not suffice to merely establish an avenue for independent review and an effective means of redress, substantive human rights guarantees would have to be secured as well.Footnote 112 This would not be easily realized in the highly intergovernmental setting of the UN. Moreover, the problem of relying on confidential information to substantiate an individual's designation would continue to significantly limit the possibilities for any future procedure being fair.Footnote 113
The approach employed by the Grand Chamber in the Nada case may present a more promising technique for judicial deference. A harmonious interpretation including a presumption of compliance can draw a careful balance between the conflicting interests concerned; on the one hand, maintaining international peace and security and, on the other hand, guaranteeing the protection of an individual's human rights. Yet in order to accord sufficient weight to the latter interest, the threshold for rebuttal of the presumption needs to be higher than that applied by the Grand Chamber in the Nada case. By relying on a relatively lenient standard the presumption of compliance loses much of its potential power as a means of protecting individuals' enjoyment of their human rights. Therefore, instead of relying on mere implications, the Court should have required the Security Council to explicitly create an obligation upon UN Member States to deviate from specifically prescribed international human rights. This obligation should be stipulated in the operative paragraphs of the relevant resolution, and not in merely in the preamble. For example, when imposing targeted sanctions, the Security Council should add a provision such as ‘The Security Council decides that States should carry out the obligations created in paragraph … notwithstanding any of their obligations under international human rights law to guarantee the individuals concerned a fair trial or an effective remedy.’ Moreover, the Court should require the Security Council to take this step every single time it adopts a resolution to that effect, and also when it concerns a subsequent resolution merely confirming earlier obligations. If such a high threshold was applied, it could be expected that the Security Council would not be able to deviate readily from international human rights law. The members of the Security Council would probably struggle to agree upon the precise, clear, and explicit language that would be required in such a provision, since it would force the Council and its members to fully confront their actions and accept the political cost.Footnote 114
