Thursday, 23rd October 2014
Lakshman I.Keerthisinghe LLB, LLM.MPhil, Attorney-at-Law
Do not judge according to appearance, but judge with righteous judgement
- Bible-John-Judgement
It was reported that Sri Lanka’s Ministry of External Affairs expressed concern over the European Union Court of Justice, ruling, which on procedural grounds struck down the European Council measures of 2006, maintaining Sri Lanka’s defunct Tamil Tiger terrorist group, Liberation Tigers of Tamil Eelam (LTTE) on the European list of terrorist organizations but allowed measures to keep their assets frozen.
The statement released by the Ministry of External Affairs pointed out that, “It is noteworthy that the Court has stressed the annulments to be “on fundamentally procedural grounds” and “do not imply any substantive assessment of the question of the classification of the LTTE as a terrorist group.” Further it is observed from the decision that “the effects of the annulled measures are maintained temporarily in order to ensure the effectiveness of any possible future freezing of funds”.
It is to be noted that the Liberation Tigers of Tamil Eelam (LTTE) are a movement which opposed the Government of Sri Lanka in a rebellion against the legally constituted Government of Sri Lanka resulting in a violent confrontation which culminated in the LTTE’s defeat in 2009. In 2006, the European Council placed the LTTE on the EU list relating to frozen funds of terrorist organisations and has maintained them on that list ever since, referring to, inter alia, decisions of Indian authorities.
European institutions
The LTTE contested their maintenance on the list in the General Court of the European Union. They submitted that their confrontation with the Government of Sri Lanka was an ‘armed conflict’ within the meaning of international law, subject only to international humanitarian law and not to anti-terrorist legislation. In addition, the LTTE stated that their maintenance on the list relating to frozen funds is based on unreliable grounds which do not derive from decisions of ‘competent authorities’ within the meaning of Common Position 2001/931/CFSP.(1) In its judgement, the Court found that EU law on the prevention of terrorism also applies in ‘armed conflicts’ within the meaning of international law. Therefore, the LTTE cannot claim that the existence of an armed conflict precludes a possible application of EU law with regard to them.
As regards the decisions of Indian authorities relied upon by the Council, the Court fond that an authority of a State outside the EU may be a ‘competent authority’ within the meaning of Common Position 2001/931. However, the Council must carefully verify at the outset that the legislation of the third State ensures protection of the rights of defense and of the right to effective judicial protection equivalent to that guaranteed at EU level. The Court found that the Council did not carry out such a thorough examination in the present case.
The Court also found that the contested measures were based not on acts examined and confirmed in decisions of competent authorities, as required by Common Position 2001/931 and case-law but on factual imputations derived from the press and the internet. Therefore, the Court annulled the contested measures while temporarily maintaining the effects of the last of those measures in order to ensure the effectiveness of any possible future freezing of funds. The Court stressed that those annulments, on fundamental procedural grounds, do not imply any substantive assessment of the question of the classification of the LTTE as a terrorist group within the meaning of Common Position 2001/ 931 of December 27, 2001.
It must be noted that an appeal, limited to points of law only, may be brought before the European Council Court of Justice against the decision of the General Court, which is a court of first instance, within two months of notification of the decision and that an action for annulment seeks the annulment of acts of the institutions of the European Union that are contrary to European Union law. The Member States, the European institutions and individuals may, under certain conditions, bring an action for annulment before the Court of Justice or the General Court. If the action is well founded, the act is annulled. The institution concerned must fill any legal vacuum created by the annulment of the act.
The European Union court, which struck down the sanctions imposed on the Liberation Tigers of Tamil Eelam (LTTE) by the EU in 2006, had its own reasons to do so. Significantly, the court has not lifted the freezing of the assets owned by the banned organisation.
The EU had proscribed the LTTE after countries like the US and Canada had declared it a terrorist organisation. Though the LTTE was defeated and its leadership destroyed by the Sri Lankan forces in 2009, it continues to remain banned in countries like India, the US, the UK and Sri Lanka. It remains to be seen how the verdict would affect the policies of member countries vis-a-vis the LTTE. The verdict should have no bearing on India's policy on the LTTE. Though the organisation may have been defeated, its ideology remains intact. Its remnants are also active, both within and without Sri Lanka. In other words, it continues to pose a danger to the integrity of Sri Lanka. No other country has experienced the severity of its danger as India, which lost a former prime minister to one of its suicide missions. Worse, the LTTE also stands in the way of the integration of the Tamils in the Sri Lankan society.
India has to take a holistic view of the situation, particularly the threat the LTTE poses. The fear that the remnants of the LTTE could be a rallying point for terrorist outfits inimical to India is too real to be discounted. India also has to take into account the threat to India's security before taking any decision on reviewing its policy towards the terrorist organisation. The decision of the European Union should, therefore, have no relevance to India.
In a press release No 138/14 issued in Luxembourg on October 16, 2014 the General Court of the European Union stated that in Judgment in Joined Cases T-208/11 and T-508/11 Liberation Tigers of Tamil Eelam (LTTE) v Council, the Court annulled, on procedural grounds, the Council measures maintaining the Liberation Tigers of Tamil Eelam on the European list of terrorist organizations. However, the effects of the annulled measures are maintained temporarily in order to ensure the effectiveness of any possible future freezing of funds.
Terrorist organisations
In 2006, the Council placed the LTTE on the EU list relating to frozen funds of terrorist organisations and has maintained them on that list ever since, referring to, inter alia, decisions of Indian authorities. The LTTE contested their maintenance on the list. They submit that their confrontation with the Government of Sri Lanka was an ‘armed conflict’ within the meaning of international law, subject only to international humanitarian law and not to anti-terrorist legislation.
In addition, the maintenance on the list relating to frozen funds is based on unreliable grounds which do not derive from decisions of ‘competent authorities’ within the meaning of Common Position 2001/931/CFSP. In the judgment, the Court finds that EU law on the prevention of terrorism also applies in ‘armed conflicts’ within the meaning of international law. Therefore, the LTTE cannot claim that the existence of an armed conflict precludes a possible application of EU law with regard to them.
Thus in essence it is to be noted that the General Court of European Union has annulled the Council’s measures taken against the Liberation Tigers of Tamil Eelam (LTTE), which was designated as a terrorist organisation by the EU, only on procedural grounds. In the judgement delivered in Luxembourg, the Court determined that the Council had not carried out the necessary checks when determining a ‘competent authority’ during the case.
Delivering the ruling, the Court stressed however, “those annulments, on fundamental procedural grounds, do not imply any substantive assessment of the question of the classification of the LTTE as a terrorist group within the meaning of Common Position 2001/931.” It will take three months before the annulment would take effect, in order to “ensure the effectiveness of any possible future freezing of funds”.
A team of lawyers and Tamil representatives who had pursued the case on behalf of the LTTE had argued that the LTTE, as an actor within an armed conflict was subject only to international humanitarian law, not anti-terror legislation. The court however, ruled against this. In the judgment, the Court found that EU law on the prevention of terrorism also applies in ‘armed conflicts’ within the meaning of international law. Therefore, the LTTE cannot claim that the existence of an armed conflict precludes a possible application of EU law with regard to them,” the Court said.
The parties to the Case were as applicant, the Liberation Tigers of Tamil Eelam (LTTE), established in Herning (Denmark), and as the defendant the Council of the European Union, supported as interveners by Kingdom of the Netherlands, the United Kingdom of Great Britain and Northern Ireland and by the European Commission, The Bench in the General Court (Sixth Chamber, Extended Composition), was composed of F. Dehousse (Rapporteur), acting as President, I. Wiszniewska-Bialecka, E. Buttigieg, A. M. Collins and I. Ulloa Rubio, as the other Judges, The six pleas common to both actions alleged that (i) inapplicability of Regulation No 2580/2001 to the conflict between the LTTE and the Government of Sri Lanka; (ii) wrongful categorisation of the LTTE as a terrorist organisation for the purposes of Article 1(3) of Common Position 2001/931; (iii) lack of any decision taken by a competent authority; (iv) failure to undertake the review required under Article 1(6) of Common Position 2001/931; (v) breach of the obligation to state reasons; and (vi) infringement of the rights of defense and the right to effective judicial protection. Solely in Case T-508/11 it alleges (vii) infringement of the principles of proportionality and subsidiarity.
International humanitarian law
During the course of the judgement it is noteworthy that the Court inter alia held that contrary to what the LTTE claims, the applicability of international humanitarian law to a situation of armed conflict and to acts committed in that context does not imply that legislation on terrorism does not apply to those acts. In EU law, it should be noted that the existence of an armed conflict within the meaning of international humanitarian law does not exclude the application of provisions of EU law concerning terrorism to any acts of terrorism committed in that context.
In fact, Common Position 2001/931 makes no distinction as regards its scope according to whether or not the act in question is committed in the context of an armed conflict within the meaning of international humanitarian law. Moreover, as the Council rightly points out, the objectives of the European Union and its Member States are to combat terrorism, whatever form it may take, in accordance with the objectives of current international law. It is notably to implement, at EU level, Security Council Resolution 1373 (2001) of September 28, 2001, which ‘reaffirm(s) the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts’ and ‘calls on Member States to complement international cooperation by taking additional measures to prevent and suppress, in their territories through all lawful means, the financing and preparation of any acts of terrorism’.
The Court also found that the existence of an armed conflict within the meaning of international humanitarian law does not appear to preclude, in the case of a terrorist act committed in the context of that conflict, the application not only of provisions of the humanitarian law on breaches of the laws of war, but also of provisions of international law specifically relating to terrorism. Thus, the International Convention for the Suppression of the Financing of Terrorism, signed in New York on December 9, 1999 (‘the 1999 New York Convention’), expressly envisages the commission of terrorist acts in the context of an armed conflict within the meaning of international law.
Armed conflicts
In Article 2(1) (b) thereof, it renders unlawful ‘any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or to abstain from doing any act’. That convention confirms that, even in an armed conflict within the meaning of international humanitarian law, there may be terrorist acts liable to be punished as such and not only as war crimes. Those acts include those intended to cause death or serious bodily injury to civilians. The LTTE is therefore wrong to claim that, in international law, the notions of armed conflict and of terrorism are incompatible. It is also apparent from the foregoing considerations that the fact that terrorist acts emanate from ‘freedom fighters’ or liberation movements engaged in an armed conflict against an ‘oppressive government’ is irrelevant. Such an exception to the prohibition of terrorist acts in armed conflicts has no basis in European law or even in international law. In their condemnation of terrorist acts, European law and international law do not distinguish between the status of the author of the act and the objectives he pursues.
In these circumstances, the Government of Sri Lanka undoubtedly has the opportunity of reversing the order of de-proscription of the LTTE by urging relevant substantive grounds in the European Union Court of Justice against the order of the General Court.
Sri Lanka’s External Affairs Ministry commenting on the judgement further said, “Conscious of the fact that the listing of the LTTE is a matter internal to the EU, Sri Lanka is confident that the European Commission and the EU Member States will take the best possible decision on the future course of action to be taken in this regard, in accordance with their own legal architecture in preserving sovereignty….It is noteworthy that a number of EU member countries have carried out investigations against LTTE activists in their territories, some of which are ongoing, while some have resulted in the accused being sentenced by court,” the ministry said. It also said the court decision may affect the security of Sri Lankans living in EU territory and EU citizens of Sri Lankan origin, who are likely to come under pressure once again by pro-LTTE activists.
In conclusion, it must be stated that the above mentioned decision of the European Court has been arrived at purely on procedural grounds. The Government of Sri Lanka has decided to appeal against the EU General Court decision that lifted the ban on the LTTE. The External Affairs Ministry stated that the appeal will be filed through the Sri Lankan Embassy in the EU at Brussels in Belgium.
PTI news agency stated, although, the EU court removed the sanctions with regard to the LTTE ban, the order would remain unconfirmed for three months during which period an appeal may be made to the European Union Court of Justice to reverse the order made by the General Court.
From : http://www.dailynews.lk/?q=features/european-union-court-genesis-poor-judgement
