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Anti-terrorism Smart Sanctions and Armed Conflicts

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The Palgrave Handbook of Criminal and Terrorism Financing Law

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Abstract

Since the early 2000s, states and international organisations have intensified their efforts against terrorism, in particular to combat the financing of terrorism. The use of so-called smart sanctions has been a core element of this large-scale strategy. One question that had seldom been raised until very recently was that relating to the application of such sanctions to entities that are supposedly involved in an armed conflict against a State. The aim of this chapter is to address this question from a general international law perspective. The EU practice and case law is used as a starting point in order to assess whether the application of restrictive measures conflicts with the rights and privileges conferred by international humanitarian law (IHL) to the parties to an armed conflict, and in particular to the non-State party to that conflict.

I would like to thank Clive Owen and Paolo Palchetti for their comments on an earlier draft of this chapter.

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Notes

  1. 1.

    See, among others, Iain Cameron, ‘European Union Anti-Terrorist Blacklisting’ (2003) 3(2) Human Rights Law Review 225; Christina Eckes, EU Counter-Terrorist Policies and Fundamental Rights: The Case of Individual Sanctions (OUP 2009); Bardo Fassbender (ed), Securing Human Rights?: Achievements and Challenges of the UN Security Council (OUP 2011); Iain Cameron (ed), EU Sanctions: Law and Policy Issues Concerning Restrictive Measures (Intersentia 2013); Francesco Giumelli, The Success of Sanctions: Lessons Learned from EU Experience (Ashgate Publishing 2013).

  2. 2.

    For an overview of the case law see Luca Pantaleo, ‘Sanction Cases in the European Courts’ in Matthew Happold and Paul Eden (eds), Economic Sanctions and International Law (Hart Publishing 2016) 171.

  3. 3.

    Joined Cases T-208/11 and T-508/11 Liberation Tigers of Tamil Eelam (LTTE) v Council of the European Union [2014] OJ C421/28.

  4. 4.

    Council Decision 2006/379/EC of 29 May 2006 implementing Article 2(3) of Regulation 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2005/930 [2006] OJ L144/21.

  5. 5.

    The arguments raised by LTTE are summarised in the judgment. Liberation Tigers of Tamil Eelam (n 3) paras 42–53.

  6. 6.

    Ibid. paras 54–83.

  7. 7.

    See Case C 158/14 A, B, C and D v Minister van Buitenlandse Zaken [2017] ECR II-202, paras 76–99 and paras 99–122 of the Sharpston AG’s Opinion.

  8. 8.

    Ibid. para 87.

  9. 9.

    For a comment on the LTTE decision see Luca Pantaleo, ‘Of Terrorists and Combatants: The Application of EU Anti-Terrorism Measures to Situations of Armed Conflict in the General Court’s Ruling Concerning the Liberation Tigers of Tamil Eelam’ (2015) 40 European Law Review 599, 605–7.

  10. 10.

    On this topic see the seminal work of Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law (CUP 2011).

  11. 11.

    For an overview see Xu Shu, ‘The Doctrine of Lex Specialis in the Contemporary International Legal Order’ (2012) 15 International Law Review of Wuhan University 31.

  12. 12.

    See Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226.

  13. 13.

    Ibid. para 25.

  14. 14.

    See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, para 106.

  15. 15.

    Ibid. para 134.

  16. 16.

    See the thoughtful analysis carried out by Marko Milanovic, ‘Norm Conflicts, International Humanitarian Law, and Human Rights Law’ in Orna Ben-Naftali (ed), International Humanitarian Law and International Human Rights Law: Pas de Deux (OUP 2011).

  17. 17.

    See, in general, Matthew Happold, ‘International Humanitarian Law and Human Rights Law’ in Nigel White and Christian Henderson (eds), Research Handbook on International Conflict and Security Law (Edward Elgar Publishing 2013) 459.

  18. 18.

    The leading case in the field is undoubtedly the decision handed down by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v Galić, Judgment Case no IT-98-29-A, 30 November 2006.

  19. 19.

    See Andrea Bianchi and Yasmin Naqvi, International Humanitarian Law and Terrorism (Hart Publishing 2011).

  20. 20.

    The most famous but also highly criticised recognition of terrorism as a crime under general international law in times of peace has been advocated by the Special Tribunal for Lebanon (STL), Appeals Chamber, ‘Interlocutory decision on the applicable law: terrorism, conspiracy, homicide, perpetration, cumulative charging’ Case No STL-11-01/I, 16 February 2011, with the late Professor Antonio Cassese serving as both Judge Rapporteur and President of the Chamber. Compare the criticisms of Ben Saul, ‘The Special Tribunal for Lebanon and Terrorism as International Crime: Reflections on the Judicial Function’ in William A Schabas, Yvonne McDermott, and Niamh Hayes (eds), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate Publishing 2013).

  21. 21.

    See Christophe Paulussen, ‘Impunity for International Terrorists? Key Legal Questions and Practical Considerations’ (2012) ICCT Research Paper 3 <www.icct.nl/download/file/ICCT-Paulussen-Impunity-April-2012.pdf> accessed 21 March 2017.

  22. 22.

    This is also, by and large, the line of arguments followed by Sharpston AG in her Opinion concerning the Dutch LTTE case already mentioned (n 7).

  23. 23.

    Liberation Tigers of Tamil Eelam (n 3) para 69.

  24. 24.

    Ibid.

  25. 25.

    See Philip Kunig, ‘Intervention, Prohibition of’, Max Planck Encyclopaedia of Public International Law (2012) para 7.

  26. 26.

    See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14.

  27. 27.

    A perspective analysis of the ICJ’s judgment 25 years after its adoption is carried out by Marcelo Kohen, ‘The Principle of Non-Intervention 25 Years after the Nicaragua Judgment’ (2012) 25(1) Leiden Journal of International Law 157.

  28. 28.

    See Nicaragua v United States of America (n 26) para 205.

  29. 29.

    See Kunig (n 25) para 6.

  30. 30.

    See Avra Constantinou, The Right of Self-Defence Under Customary International Law and Article 51 of The United Nations Charter (Bruylant 2000).

  31. 31.

    The most famous cases of this practice are the interventions in Congo (1964), Czechoslovakia (1968), Afghanistan (1979) and Panama (1989).

  32. 32.

    See Georg Nolte, ‘Intervention by Invitation’, Max Planck Encyclopaedia of Public International Law (2012) paras 5–6.

  33. 33.

    Reference can be made to France’s intervention in Côte d’Ivoire (2002) and Chad (2006), or the interventions made by the African Union, such as in Sudan (2004) before the United Nations launched its own mission.

  34. 34.

    See Nolte (n 32) para 12.

  35. 35.

    See, among others, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 168, paras 42–53, where the issue of consent is discussed at length.

  36. 36.

    See Nolte (n 32) para 20.

  37. 37.

    See Nicaragua v United States of America (n 26) para 246.

  38. 38.

    Not to mention the fact that an intervention carried out against a State for the purposes of aiding internal rebel groups may very well conflict with another foundational principle of international law, depending on the scale and forms of the intervention in question—namely, the prohibition of the use of force.

  39. 39.

    See Enzo Cannizzaro, Corso di Diritto Internazionale (Milano 2011) 272–73.

  40. 40.

    See Dapo Akande and Zachary Vermeer, ‘The Airstrikes against Islamic State in Iraq and the Alleged Prohibition on Military Assistance to Governments in Civil Wars’ EJIL: Talk! (2 February 2015) <www.ejiltalk.org/the-airstrikes-against-islamic-state-in-iraq-and-the-alleged-prohibition-on-military-assistance-to-governments-in-civil-wars/> accessed 19 June 2016.

  41. 41.

    See Institut de Droit Internationale, ‘The Principle of Non-Intervention in Civil Wars’ (1975) Session of Wiesbaden.

  42. 42.

    See, among others, Louise Doswald-Beck, ‘The Legal Validity of Military Intervention by Invitation of the Government’ (1985) 56 British Yearbook of International Law 189; Christine Gray, International Law and the Use of Force (OUP 2008) 80–5; Olivier Corten, The Law Against War (Hart Publishing 2010).

  43. 43.

    See Nolte (n 32).

  44. 44.

    See Eliav Lieblich, International Law and Civil Wars (Routledge 2013) 162.

  45. 45.

    Liberation Tigers of Tamil Eelam (n 3) para 69 (emphasis added).

  46. 46.

    See Daniel Thürer and Thomas Burri, ‘Self-Determination’, Max Planck Encyclopaedia of Public International Law (2012) para 15.

  47. 47.

    See UNGA Res 25/2625 (24 October 1970) UN Doc A/RES/25/2625.

  48. 48.

    Ibid.

  49. 49.

    See the seminal and much celebrated work of Antonio Cassese, Self-Determination of Peoples (CUP 1995) 133–40.

  50. 50.

    But see the critical considerations of Thürer and Burri (n 46) para 34.

  51. 51.

    See Cassese (n 49) 101.

  52. 52.

    See UNGA Res 48/159 (20 December 1993) UN Doc A/RES/48/159, where it is proclaimed in the preamble that ‘peace and stability in southern Africa require the total eradication of apartheid and the exercise of the right of self-determination by all the people of South Africa’.

  53. 53.

    See Gudmundur Alfredsson, ‘Peoples’, Max Planck Encyclopaedia of Public International Law (2012) para 20.

  54. 54.

    In fairness, situations that could give rise to some doubts are more likely to occur than one may be inclined to believe in the first place. Unfortunately, fundamental rights of individuals are still violated in many countries, and those violations are sometimes based on racial discrimination. Sometimes these violations are so serious and systematic that one may very well maintain that the ‘massive violation’ threshold has been crossed. To stick to our example, the Sri Lankan conflict is still, by and large, a controversial case. While a UN report published in 2011 found that massive killings of Tamil civilians were perpetrated intentionally by the government so as to amount to crimes against humanity, a new UN report published in October 2015 is somewhat more nuanced on this matter. See Umesh Perinpanayagam, ‘Mass Killings of Tamil Civilians Downplayed in New UN Report on Sri Lanka, Silent on Genocide Question’ EJIL: Talk! (19 October 2015) <www.ejiltalk.org/mass-killings-of-tamil-civilians-downplayed-in-new-un-report-on-sri-lanka-silent-on-genocide-question/> accessed 10 January 2017.

  55. 55.

    As already mentioned above, the existence of a situation of foreign occupation in Palestine is undisputed and has been officially recognised at UN level. See Legal Consequences of the Construction of a Wall (n 14), especially paras 102–13. More recently, see UNSC Res 2334 (23 December 2016) UN Doc S/RES/2334.

  56. 56.

    See Thürer and Burri (n 46). Authentic representatives of a people exercising self-determination that have been officially referred to as such at UN level are the liberation movements of South Africa. See UNGA Res 48/159 (n 52) para 3.

  57. 57.

    See David W Glazier, ‘Wars of National Liberation’, Max Planck Encyclopaedia of Public International Law (2012) para 16.

  58. 58.

    For an overview see Anis F Kassim, ‘Palestine Liberation Organization’, Max Planck Encyclopaedia of Public International Law (2012).

  59. 59.

    See UNGA Res 2621 (12 October 1970) A/8086.

  60. 60.

    See Antonio Cassese, Self-Determination of Peoples (CUP 1995) 154, according to whom ‘third States are strictly forbidden from granting any military or economic assistance to the oppressive State’.

  61. 61.

    Sanctions against the FARC were suspended on 27 September 2016 following the signing of the Colombian Peace Agreement on the previous day. See Colombia: EU suspends sanctions against the FARC, Press Release 533/16 <www.consilium.europa.eu/en/press/press-releases/2016/09/27-colombia-eu-suspends-farc/> accessed 10 January 2017.

  62. 62.

    The case is pending and registered at the Court’s docket with the number C-79/15 P—Council v Hamas [2016] ECR II-722.

  63. 63.

    Case T-400/10 Hamas v Council of the European Union [2014] ECR II-1095.

  64. 64.

    Council of the European Union v Hamas (n 62) Opinion of the Advocate General Sharpston, 22 September 2016.

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Authors and Affiliations

  1. Faculty of Public Management, Law & Saftey, The Hague University of Applied Sciences, The Hague, The Netherlands

    Luca Pantaleo

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  1. University of Sussex, Falmer, United Kingdom

    Colin King

  2. University of Leeds, Leeds, United Kingdom

    Clive Walker

  3. Notre Dame Law School, Notre Dame, IN, USA

    Jimmy Gurulé

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Pantaleo, L. (2018). Anti-terrorism Smart Sanctions and Armed Conflicts. In: King, C., Walker, C., Gurulé, J. (eds) The Palgrave Handbook of Criminal and Terrorism Financing Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-64498-1_38

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