Counterterrorism Blog

Today, the UK's high court invalidated the country's asset freezing regime against terrorists, ruling it to be unconstitutional.

The ruling has been described as devastating to the UK's strategy against terrorism. It was based on the court finding that the UK government could not simply implement UN Security Council resolutions directly, but had to go to Parliament first to get them authorized.

It is not clear from initial reports whether this means that the government is supposed to go to Parliament every time it wishes to freeze the assets of a designated terrorist, or after each UN security counsel resolution. Either requirement would likely mean delays in implementing sanctions based on UN decisions, giving the terrorists time and opportunity to move funds out of harm's way during the period of legislative consideration.

The critique by the UK courts was similar to that already made by the Advocate General at the European Court of Justice, Miguel Poiares Maduro, who recommended in January that the EU high court annul EU financial sanctions against suspected al-Qaida financier, Yassin Abdullah Kadi, on due process concerns. That recommendation remains under consideration, but the EU court is unlikely to fail to notice the decision taken in the UK.

There is thus a growing risk that the entire international regime to freeze terrorist assets is in a process of disintegration.

In light of this risk, the U.S. and other countries seeking to maintain the ability to freeze terrorist assets need to proceed quickly to develop mechanisms that would provide those subject to sanctions with baseline elements of the right to be heard by by an independent and impartial authority that has the power to grant appropriate relief with procedural guarantees for affected individuals or entities. Some of the most obvious possibilities were laid out two years ago by Professors Thomas J. Biersteker and Sue Eckert of the Watson Institute in a paper for the UN. They include creating a process headed by a monitoring team to consider providing advisory opinions to the UN on delistings, having a panel of experts to draw upon to consider particular requests and make recommenations to the UN; creating an ombudsman to whom those listed could appeal, who would make recommendations on delisting; setting up an arbitration panel for delistings with a formal hearing process; and providing for independent judicial review. The last option, and likely the arbitration approach as well, would be viewed by many as infringing on the authority of the Security Council. Some of the other options might be workable, and could help counter the push-back against asset freezes that is now taking place in Europe.