ECHR finding that UN sanctions in Switzerland incompatible with international human rights

Case of Al-Dulimi and Montana Management Inc v Switzerland (Application no. 5809/08) (21 June 2016)

The Grand Chamber of the European Court of Human Rights has delivered another decision in the long line of cases dealing with the relationship between sanctions by the United Nations Security Council (UN Security Council), and international human rights. By 15 votes to 2, the Grand Chamber found that Swiss courts did not provide meaningful judicial review of the applicant’s sanctions listings by the Sanctions Committee of the Security Council (Sanctions Committee). It therefore found a violation of Article 6(1) of the European Convention of Human Rights (ECHR).  In doing so the Grand Chamber upheld the presumption, highlighted in previous cases that Security Council sanctions are to be interpreted on the basis that they are compatible with international human rights.

The applicant in the decision, Mr Khalaf Al-Dulimi was, according to the UN Security Council, the head of finance for the Iraqi secret services under the regime of Sadam Hussein.  The second applicant in the decision was a corporation, Montana Management Inc, Mr Al-Dulimi being its managing director.

After Iraq’s invasion of Kuwait in 1990, the UN Security Council adopted resolutions for UN member States and non-member States to apply a general embargo against Iraq.  The Swiss Federal Council as a result adopted an ordinance providing for economic measures against the Republic of Iraq.  The applicants alleged that since then their assets in Switzerland had remained frozen.

After 1990, there were several amendments made to the Iraq ordinance.  Further, the Security Council created a Sanctions Committee tasked with listing individuals whose assets should be frozen as a result of the resolution.  In 2004, the Sanctions Committee added both applicants to the list.  As a result, the applicants’ names were added to Switzerland’s list of the Iraq ordinance.  At a similar time, the Federal Council also adopted an ordinance on the confiscation of frozen Iraqi assets and economic resources and their transfer to the Development Fund for Iraq. 

The decision of the Federal Department for Economic Affairs
The applicants attempted to remove their names from the sanctions list, calling upon the Federal Department for Economic Affairs in Switzerland to suspend the confiscation procedure in respect of their assets. The Federal Department for Economic Affairs sent the applicants draft decisions on the confiscation and transfer of the funds that were deposited in their names in Geneva.  Despite the applicants challenging these draft decisions, in May 2006 the Federal Department for Economic Affairs ordered the confiscation of the applicants’ assets.

In supporting its decision, the Federal Department observed that the applicants’ names were on the Sanctions Committee’s list and that Switzerland was bound by the resolutions of the Security Council.  It indicated that it could only delete a name if the relevant decision had been made by the Sanctions Committee.

In December 2006, the Security Council adopted Resolution 1730, to allow the removal of names on the Sanctions Committee list, as well as for granting humanitarian exemptions.  The applicants lodged separate administrative-law appeals with the Federal Court against the Federal Department’s decisions seeking their annulment.

Grounds for challenge and the decision of the Federal Court
In support of their submission, the applicants argued that the confiscation breached their property right guaranteed by the Federal Constitution and that the basic procedural safeguards of the International Covenant on Civil and Political Rights (ICCPR).  The applicant stated that the Federal Court has jurisdiction to review the legality and the conformity of the Sanctions Committee’s decision to add their names to the list with the ECHR and the ICCPR.

In almost three identical judgements, the Federal Court dismissed the appeals confining itself to verifying the applicant’s names actually appearing on the lists drawn up by the Sanctions Committee.

The first decision of the European Court of Human Rights
The European Court of Human Rights firstly emphasised the need to harmonise the obligations arising from the UN Charter and international law.  The Court went on to find that the right to access an impartial court had been denied.  While it acknowledged that this right is not an absolute one, it found that there had been no access at all to review the listing, and that Article 6 of the ECHR, which grants the right to a fair and public hearing by an independent and impartial tribunal had been violated.  The applicants appealed the decision to the Grand Chamber, which handed down its judgement on 21 June 2016.

The Grand Chamber noted that the sanctions imposed by the Security Council could have extremely serious consequences to those affected by it – in fact so severe, that they cannot be implemented without affording the right to appropriate review.  This is all the more important with the sanction lists of names, as they are usually compiled in circumstances of international crises and are based on sources, which are not always accurate.

The Grand Chamber held that the UN Resolutions did not contain any clear or explicit wording which excluded the possibility of judicial supervision.  Therefore, it should always be understood as authorising State courts to exercise scrutiny so that arbitrariness can be avoided.  The Court should therefore take into account the nature and purpose of the measures provided for in UN resolutions, in order to assess and strike a fair balance between the necessity of ensuring respect of human rights and the imperatives of protecting international peace and security.

In cases regarding a dispute over a decision to add a person to the list or refusing a delisting, the State Courts must be able to obtain sufficiently precise information in order to exercise the requisite scrutiny of ECHR compliance, which at least preserves the foundations of public order.

The Security Council is required to perform its tasks while fully respecting and promoting human rights and this cannot be understood to preclude any judicial scrutiny.  Consequently there must be a presumption that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights.  If there is any ambiguity, the Court must interpret the resolution in a way that allows for the most harmony with the ECHR and avoids any conflict of obligations.  In the absence of explicit wording excluding or limiting respect for human rights in the context of the implementation of sanctions, the Court must always presume that those measures are compatible with the ECHR.  The Court should therefore interpret the sanctions in a way that allows for systemic harmonisation.

The Grand Chamber found in the present case, that the Applicants should have been afforded at least a genuine opportunity to submit evidence to the Court to seek to show that their inclusion in the sanctions list was arbitrary.  The fact that this opportunity was not afforded meant that the very essence of the applicants’ right of access to a court had been impaired in violation of Article 6(1) of the ECHR, which grants the right to a fair hearing by an impartial tribunal.  

The decision highlights the difficulty States have with the harmonious interpretation of UN resolutions, and international human rights.  It is worth noting Judge Nussberger’s dissent, that the interpretation of the Charter and the UN sanction resolution is not harmonious at all, but merely a fake harmonious interpretation.  

The Grand Chamber followed a long line of authority interpreting the ECHR and various international laws in a compatible and harmonious manner.  Therefore, the Grand Chamber avoided making a ruling on Article 103 of the Charter, by finding that there was no existence of a conflict.  The implications of a conflict between international laws regarding sanctions and human rights is therefore yet to be substantively explored.    

The full text of the decision can be found here.

Ann-Kathrin Goller is a Law Graduate at King & Wood Mallesons.