Global Policy Forum

No Redress on Gaddafi Asset Seizure

The Security Council has imposed a travel ban and assets freeze on Libyan leader Muammar Muhammad al-Gaddafi.  While few would disagree that the increasingly dire situation in Libya justifies this move, the Security Council's general practice on sanctions has proven highly controversial. A long line of cases in the European Union court, and other jurisdictions, have exposed that innocent individuals are often included on the 'terrorist list'. There is also no way to challenge listings, except for those imposed by the Al-Qaida and Taliban Sanctions Committee.

By Afua Hirsch

March 1, 2011

Last Sunday, the Queen sat in court at Windsor Castle and approved the creation of two new criminal offences, each attracting a maximum prison sentence of two years. Both relate to the provision of finances or assets to the now blacklisted regime of Gaddafi - dealing in anything ranging from bars of gold to derivative products which are now forbidden in the UK.

The Queen's executive order - an ancient form of new law through the crown and the privy council that bypasses parliament - is the UK's way of implementing the decisions of the UN security council. Over the weekend the security council passed resolution 1970 - an unprecedented unanimous decision approving travel bans for 16 members of Gadaffi's regime and his family, and asset-freezing for six of them, as well as referring his actions to the international criminal court.

The ICC prosecutor, Luis Moreno-Ocampo, has issued a statement saying he is deciding whether to open an investigation, and - in a move worthy of the social networking roots of this Arab Spring - called for some evidential crowd-sourcing. Emails from anyone with footage or images that may be relevant to Gaddafi's alleged crimes are, apparently, welcome.

But for now it's the prospect of having their assets frozen and movements curtailed that will really hurt Gaddafi and his people. As a security council resolution, under article 41 of the UN charter (the power to respond to threats to peace and security other than with armed force) it is mandatory on UN member states to adopt it.

But will the Gaddafi's really take it lying down? After all, the family is reported to have billions of dollars of investments in London alone. And if not, what options are open to them to challenge it?

It's not a matter for the UN's own court - the international court of justice. That much was established the last time significant sanctions were imposed on Libya, after the Lockerbie bombing. In a case brought by Gaddafi against the UK back in 1992, the court established that it did not have the power of "judicial review" over a resolution of the UN security council, unless it had been brought about by an invalid process.

But it's fair to say sanctions have become a more mainstream legal issue since then. The September 11 terrorist attacks brought a whole new regime of asset freezing, and a significant expansion of the security council's role. Resolutions were adopted, and implemented around the world, designed to freeze the funds of individuals and entities that were alleged to be associates of Osama bin Laden, the al-Qaida network, and the Taliban, many of whom sought to challenge their designation.

One such person was Saudi businessman Yassin Abdullah Kadi, who in 2002 found himself listed as a suspected terrorist backer and his substantial assets frozen under EC law. He, like others in the UK, challenged his designation and the fact that there was no way of finding out why he was on the list, and no way of getting himself removed.

The impossibility of challenging the UN security council has in fact led to litigation in courts ranging from the Swiss federal tribunal, the Turkish council of state, the Pakistani courts, Italian courts and, in Kadi's case, the EC courts.

In the UK, the right to challenge asset freezing and travel ban measures became a central turning point in judicial tolerance of counter-terrorism law, with the first ever supreme court decision stating that executive orders implementing UN security council decisions could not preclude the right to a fair hearing in the courts.

Resolution 1970 says nothing about how its measures can be challenged. There is a provision for the sanctions to be kept under "continuous review" but the tone leans more towards adding more people to the list, rather than removing any of the existing ones from it.

The question of how to challenge resolutions like this is important - not because Gaddafi and his associates are likely to have a leg to stand on (unlike earlier, less sophisticated sanctions, these contain exemptions for "basic expenses, including payment for foodstuffs, rent or mortgage, medicines and medical treatment").

The whole concept of singling out individuals for asset freezes and travel banks represent an evolution in the UN's sanction practices, away from the historic tendency to impose blanket sanctions on a nation, towards targeted measures designed to hurt the individuals at the heart of oppressive regimes.

But legal measures should include a form of redress - history also shows that the security council does not always get it right. And at the moment, with academics still arguing over the duality of UN resolutions and domestic legal systems, with individual terrorist suspects still challenging sanctions against them at national and regional level, and with executive orders like this weekend's still passed by the Queen in council and not parliament, the world of asset freezing still seems like a law unto itself.

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