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European Commission Et Al. V. Kadi (E.C.J.)

Published online by Cambridge University Press:  20 January 2017

Sean M. Thornton
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Extract

When Yasin Al-Kadi, a Saudi businessman and alleged terrorist financier, prevailed at the Grand Chamber of the European Court of Justice (ECJ) and secured the lifting of economic sanctions that had been imposed against him since 2001, he opened a major gap in the multilateral legal framework for targeted economic sanctions. The framework dates to the late 1990s, was expanded substantially after the terrorist attacks of September 11, 2001, and now may be in decline, due in substantial part to the ECJ’s decision. The Kadi case rests on a simple legal proposition: there must be evidence to support restrictions against an individual for his alleged misconduct. The dilemma for authorities that impose targeted economic sanctions is that while the evidence exists, it tends to be sensitive, often classified–particularly with respect to terrorism, but also in similar frameworks imposing sanctions against those involved in the proliferation of weapons of mass destruction or human rights violations–and the intelligence services that collect such information prefer to keep it closely held.

Type
International Legal Documents
Information
International Legal Materials , Volume 52 , Issue 6 , December 2013 , pp. 1257 - 1284
Copyright
Copyright © American Society of International Law 2013

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References

* This text was reproduced and reformatted from the text available at the European Court of Justice Web site (visited November 16, 2013), http://curia.europa.eu/juris/document/document.jsf?text=&docid=139745&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=2884402.

1 Case C-584/10 P, C-593/10 P,&C-595/10 P, European Comm’n v. Kadi (July 18, 2013), http://curia.europa.eu/juris/document/document.jsf?text=&docid=139745&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=499149 [hereinafter ECJ Kadi Decision].

2 Kadi v. Geithner, No. 09-0108, 2012 U.S. Dist. LEXIS 36053 (D.D.C. Mar. 19, 2012), appeal dismissed, No. 12- 5076, 2012 U.S. App. LEXIS 17174 (D.C. Cir. July 31, 2012) [hereinafter U.S. Kadi Decision].

3 S.C. Res. 1267, U.N. Doc. S/RES/1267 (1999) (Oct. 15, 1999); see also, e.g., S.C. Res. 2083, U.N. Doc. S/RES/2083 (2012) (Dec. 17, 2012); S.C. Res. 1390, U.N. Doc. S/RES/1390 (2002) (Jan. 28, 2002); S.C. Res. 1333, U.N. Doc. S/RES/1333 (2000) (Dec. 19, 2000).

4 50 U.S.C. § 1702(c) (2014).

5 Blocked Persons, Specially Designated Nations, Specially Designated Terrorists, Foreign Terrorist Organizations, and Specially Designated Narcotics Traffickers: Additional Designations of Terrorism-Related Blocked Persons, 66 Fed. Reg. 54,404, 54,408 (Oct. 26, 2001) (to be codified at 31 C.F.R. ch. V).

6 ECJ Kadi Decision, supra note 1, ¶¶ 16-17.

7 U.S. Kadi Decision, supra note 2, at *17-*58.

8 ECJ Kadi Decision, supra note 1, ¶¶ 21-46 (reviewing procedural history).

9 An American court might have used the phrase “notice and an opportunity to be heard,” the cornerstone of constitutional due process in the United States. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 332-35 (1976).

10 ECJ Kadi Decision, supra note 1, ¶¶ 97-134.

11 Id. ¶ 153.

12 U.S. Kadi Decision, supra note 2, at *39-*40.

13 Compare ECJ Kadi Decision, supra note 1, ¶ 162 (“[N]o information or evidence has been produced to support the claim that planning sessions might have taken place in the premises of Depozitna Banka for terrorist acts in association with Al-Qaeda or Usama bin Laden. . . .”) with U.S. Kadi Decision, supra note 2, at *47, *57 (“Kadi purchased a majority holding in the now-closed Sarjevo-based Depositna Bank. . . . It ‘has been associated with Islamic extremists,’ including serving as the site for planning sessions for an attack against a U.S. facility in Saudi Arabia in the mid- 1990s. . . . The Court has carefully reviewed both the classified and unclassified records, and finds that there is substantial evidence to support OFAC’s conclusion that Kadi’s continued designation . . . was warranted.”).