Judicial protection of human rights against UN Security Council resolutions. The Al-Dulimi case.
In recent years the UN Security Council’s practice of targeting sanctions against individuals has resulted in serious limitations on the enjoyment of some individuals’ human rights. In a few instances the European Court of Human Rights has pronounced itself on the issue.
The last time was on 21 June 2016 when the Court ruled that UN Security Council sanctions imposed on the Iraqi citizen Khalaf M. Al-Dulimi and his company Montana Management without judicial review was a violation of Article 6 (1) of the European Convention on Human Rights (ECHR). The Court found that Swiss courts did not provide meaningful judicial review of the Al-Dulimi’s listing by the Sanctions Committee of the Security Council.
In 2004, the Swiss government froze the assets of Al-Dulimi (and his company) on the basis of UN Security Council Resolution 1483 (2003). Then, in 2006, the government confiscated the assets with a view to transfer them to Iraq.
Al-Dulimi tried to challenge the Swiss authorities’ decision to freeze and confiscate his assets in Swiss courts. He criticised the authorities for not conducting a review to ensure that his listing by the Sanctions Committee of the Security Council was not arbitrary.
The courts, however, refused to adjudicate on the substance. The Swiss government, the courts claimed, had no discretion and no choice but to implement Security Council Resolution 1483, and there was nothing the Swiss courts could do. The Swiss Federal Court - the supreme court of the country - ruled that sanctions under the UN Charter take precedence over all of the UN member states' other obligations under international law.
The Federal Court’s refusal to examine Al-Dulimi’s allegations clearly restricted his right of access to a court under Article 6 (1) of the ECHR. Al-Dulimi therefore decided to bring the case to the European Court of Human Rights. He alleged he had been denied an opportunity to have the legality of the sanctions against him reviewed impartially by a national court.
The ruling of the European Court of Human Rights
Al-Dulimi won in Strasbourg. The Grand Chamber of the European Court of Human Rights found that Switzerland had violated Al-Dulimi’s and his company’s right to a hearing before a court when implementing the UN Security Council resolution connected with the Iraq embargo.
The Swiss government had argued that Swiss authorities lacked discretion when implementing a binding UN resolution. And that there is a conflict between two international obligations: the obligation of UN member states under the UN Charter to implement UN Security Council sanctions in full, and the obligation to respect and ensure the right of individuals to a fair trial which, under the ECHR, demands a review of those sanctions to ensure that they are compliant with the Convention.
The European Court of Human Rights, however, did not find any irreconcilable conflict (or hierarchy) between international obligations arising from the UN Charter and the ECHR. Rather, based on the presumption of compliance, the Court tried to reconcile the obligations under both instruments.
Elements of the judgement
The Court held that:
“The Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations. In the light of the United Nations’ important role in promoting and encouraging respect for human rights, it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.” The Court held the same view also in the Al-Jedda case.
As a matter of principle, where a UN Security Council resolution such as Resolution 1483 (2003) does not contain any clear or explicit wording excluding the possibility of judicial review of the measures taken for its enforcement, the resolution always has to be interpreted as authorising the courts of the state (in this case Switzerland) to apply a suffcient degree of oversight such as to avoid any arbitrariness.
The Convention, in fact, requires judicial oversight, even where the UN is the source of the sanctions restriction, and in particular where the UN has not itself provided access to an independent and effective judicial review, at the level of the UN, of the legitimacy of adding individuals and entities to the sanctions lists. Individuals and entities should be authorised to request the review by the national courts of any measure adopted pursuant to the sanctions regime.
The measures imposed on Al-Dulimi were a disproportionate restriction of Article 6 of ECHR, because neither the UN Security Council nor the Swiss courts were providing him with access to effective judicial review, which was essential given the considerable restriction of freezing (since 2004) and confiscating (since 2006) his assets.
The Swiss Government acknowledged the judgment. In a statement it held the view that UN Security Council resolutions which do not explicitly rule out domestic judicial review of sanctions “must be interpreted as permitting an appropriate review by national courts. This review may be limited to a check that the sanctions have not been applied arbitrarily, thereby ensuring a balance between respect for human rights and the protection of peace and security.”
The government further said that the ruling “confirms the enormous importance” of the right to a hearing under the ECHR and that the government “will continue to work alongside other states to bring about an improvement in the UN system of sanctions and the legal protection afforded to the persons concerned. Specifically, the rights of the persons concerned have been strengthened step by step.” The government laconically added that the level of legal protection in the UN system “does not yet correspond to that afforded under the European Convention, however.”
Impact on the UN Security Council?
In fact this decision is also a criticism of the UN Security Council. The Court found that the Sanctions Committee should have provided States with at least a minimum of information on why people were put on the sanctions list.
Hopefully the Al-Dulimi decision and future rulings will result in better protection and human rights at the UN level. That is, the UN Security Council, seeing its efficacy and efficiency of action undermined by the abrogation of domestic implementations, might be willing to adjust its measures to the requirements upheld by the European Court of Human Rights.