EU Counterterrorism Sanctions and IHL: A v. Minister van Buitenlandse Zaken

Can the acts of armed forces in the framework of an armed conflict governed by International Humanitarian Law constitute terrorist acts? According to a new judgment of the Grand Chamber of the Court of Justice of the European Union (CJEU) the answer is yes, at least for the purposes of the EU counterterrorism sanctions regime.

The CJEU judgment in A. v. Minister van Buitenlandse Zaken responds to a request for preliminary ruling from the Dutch Council of State (see also the opinion of Advocate General Sharpston). The request arose out of a case presently pending before the Dutch Court. In 2010, the national authorities of the Netherlands designated A and three other individuals under the Dutch national counterterrorism legislation, on the basis of their ties to the Tamil Tigers (LTTE). That national legislation, which implemented Security Council Resolution 1373 on combating terrorism (2001), provides that persons and entities involved in terrorism can be subjected to an asset freeze and other financial sanctions. A and the others challenged their designation before the Dutch national courts. Among other claims, they argued that the LTTE is not a terrorist organization because the conflict between the group and the government of Sri Lanka is a non-international armed conflict governed only by IHL, not by EU and international counterterrorism measures. Since the Dutch authorities based their designation of A and the others on the EU designation of the LTTE as a terrorist organization, the question arose whether the EU designation was lawful (note that the four applicants before the Dutch Court are not themselves included on the EU sanctions list).

The EU Counterterrorism Framework and the LTTE

The LTTE has been designated under the EU counterterrorism sanctions regime since 2006. This sanctions regime was first established in 2001, as implementing Security Council Resolution 1373 after 9/11 (see Council Common Position 2001/931/CFSP, Council Regulation (EC) No. 2580/2001 and their implementing measures, together: the EU counterterrorism sanctions measures). It is important to note that the CJEU judgment at issue here only refers to the measures that designated and kept the LTTE on the EU list between 2006 and 2010. The LTTE has challenged the measures that have kept it on the EU list after 2010 in a different case currently pending before the CJEU (see previous post).

Also implicated in this case is the 2002 Council Framework Decision 2002/475/JHA, as amended, on combating terrorism. The purpose of this decision was “to approximate the definition of terrorist offences in all Member States, to provide penalties and sanctions which reflect the seriousness of such offences, and to establish jurisdictional rules to ensure that terrorist offences may be effectively prosecuted” (para. 33 of the CJEU judgment). Unlike the EU counterterrorism sanctions measures, recital 11 of the 2002 Framework Decision explicitly excludes from its purview

[a]ctions by armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law, and, inasmuch as they are governed by other rules of international law, actions by the armed forces of a State in the exercise of their official duties…

The Dutch Court’s Questions and the Answers of the CJEU

The Dutch Court referred five questions to the CJEU for preliminary ruling. The first question was essentially whether the applicants had standing to challenge the measures designating the LTTE at the EU level before a national court. The second question was whether actions by armed forces during periods of armed conflict governed by IHL could constitute terrorist acts for the purposes of the 2002 Framework Decision and the EU counterterrorism sanctions measures. The third question was whether the acts that served as the basis for the EU designation of the LTTE should be deemed “actions by armed forces during periods of armed conflict.” The fourth and fifth questions were whether, in light of the answers to the first three questions, the EU measures that included and maintained the LTTE on the sanctions list between 2006 and 2010 were valid.

The CJEU answered the first question in the affirmative, and determined that it did not have sufficient information to rule on the third question. The interesting part of the judgment is the Court’s discussion of questions two, four and five. The CJEU held that even assuming that the actions of the LTTE were in fact actions by armed forces in the framework of an armed conflict according to IHL, they could still constitute terrorist acts for the purposes of the EU terrorism sanctions measures. The Court therefore concluded that the EU designation of the LTTE between 2006 and 2010 was valid in this respect. In its analysis the CJEU rejected several arguments suggested by the referring Dutch Court.

The Dutch Court suggested that the definition of a “terrorist act” in the EU counterterrorism sanctions measures should be interpreted in light of the 2002 Framework Decision, which excluded actions by armed forces during periods of armed conflict governed by IHL. The CJEU rejected this analogy, instead opting for a purposivist interpretation of the different instruments that focused on their objectives and historical context. The 2002 Framework Decision, the Court observed, relates to Justice and Home Affairs (JHA). It aims to improve domestic law enforcement in the terrorism context among EU member States. By contrast, the EU counterterrorism sanctions measures were adopted in the framework of the EU Common Foreign and Security Policy (CFSP) in the aftermath of 9/11. Their aim is to prevent terrorist acts by cutting off financial support, not to punish such acts. The 2002 Framework Decision, the CJEU held, is therefore irrelevant to the interpretation of the EU counterterrorism sanctions measures.

The Dutch Court also pointed to a number of international conventions on terrorism that could suggest that actions by armed forces during periods of armed conflict governed by IHL do not constitute terrorist acts. The CJEU noted that the EU is not a party to those conventions. Even if it were, the Court reasoned, the conventions do not alter its conclusion.

The CJEU first observed that IHL itself prohibits acts of terrorism (see Article 33 of the Fourth Geneva Convention, Article 51(2) of Protocol I to the Geneva Conventions, and Articles 13(2) and 4(2) of Protocol II). Moreover, according to the CJEU, IHL does not prohibit the adoption of preventive measures like financial limitations outside its framework. The Court noted that IHL and the EU counterterrorism sanctions regime pursue different aims and employ different mechanisms. Turning to other international conventions related to terrorism, the Court recognized that a number of conventions exclude from their scope actions by armed forces during periods of armed conflict (see, e.g., Article 4(2) of the International Convention for the Suppression of Acts of Nuclear Terrorism; Article 26(5) of the Council of Europe Convention on the Prevention of Terrorism). Nevertheless, the CJEU maintained that the conventions do not prohibit states from classifying such actions as terrorist acts and taking steps to prevent them. The Court cited provisions in terrorism conventions that allow states to criminalize terrorist acts and require the freezing of terrorist funds (see Articles 2(1)(b) and 8(1) of the International Convention for the Suppression of the Financing of Terrorism; the final recital of the International Convention for the Suppression of Terrorist Bombings).

In sum, the bottom line of the judgment is that both EU law and international law allow the application of EU counterterrorism measures against persons and entities involved in armed conflict governed by IHL. The Court interpreted away any potential tension with international law, avoiding a Kadi-like direct contradiction between EU and international norms. A different outcome would have allowed other groups and individuals subject to EU counterterrorism sanctions to challenge their EU designation on the ground that they are involved in an armed conflict. It would compel the EU courts to decide factually and legally complex questions in order to ascertain whether armed conflict in fact exists between certain parties.

Moreover, although the EU Council was not a direct party to these proceedings, implicit in the reasoning of the CJEU is substantial deference to the Council when it acts in the framework of CFSP, as it does in the counterterrorism sanctions context. The decision preserves the Council’s ability to impose financial restrictions on persons and entities involved in armed conflict. This deference to the Council on substantive policy here stands in sharp contrast to the EU courts’ heavy scrutiny of the Council’s compliance with due process requirements when it imposes individual sanctions, both within and outside the terrorism context. As the readers may recall, the General Court of the EU and Advocate General Sharpston concluded not long ago that the measures that kept the LTTE on the EU terrorism sanctions list after 2010 should be annulled on due process grounds. That case is still pending before the CJEU.