PhD studies in human rights: European Court of Justice Strikes Down Anti-Terrorist Measures

Monday 22 September 2008

European Court of Justice Strikes Down Anti-Terrorist Measures

A recent judgment of the European Court of Justice, Case T‑315/01 Kadi v Council and Commission and Case T‑306/01 Yusuf and Al Barakaat International Foundation v Council and Commission (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0402:EN:HTML), cancels a European Regulation (881/2002 of 27 May 2002) imposing measures directed against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban. The European Union was implementing a United Nations Security Council Resolution. According to the Court, European Union institutions violated the fundamental rights of the two applicants when they decided to freeze the assets of a Saudi businessman ('Kadi') and a Sweden-based charity ('Al Barakaat') suspected of funding al-Qaeda terror groups.
The European Court of Justice was sitting in appeal of a decision by the Court of First Instance, which had made a very controversial finding that the Regulation was invalid because it conflicted with peremptory norms of international law (jus cogens). The European Court of Justice said the Regulation was invalid because it conflicted with the constitutional principles of the European Community Treaty, and in particular the requirement that all Community acts respect fundamental rights.
The earlier judgment was critiqued by our colleague Dr Laurent Pech in a casenote written in 2006 (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=915386)., and his approach is now endorsed by the European Court of Justice.
Earlier this year, I wrote on this blog about the violations of human rights that take place in the name of the 'war on terror'. Some of these measures, such as asset freezes and travel bans, are actually required by Security Council Resolutions. They violate fundamental principles of human rights and the rule of law. The European Court of Justice ruling is a step towards fixing this unacceptable situation.
Thanks to Laurent Pech.

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William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr Yvonne McDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

PhD studies in human rights

Monday 22 September 2008

European Court of Justice Strikes Down Anti-Terrorist Measures

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