On November 14, the Swiss Supreme Court (in a ruling published on November 27) dismissed a claim filed by Youssef Nada to be removed along with several entities, including Al Taqwa Bank, from the Swiss Decree of October 2, 2000, implementing UN sanctions against individuals and entities associated with Osama Bin laden, Al Qaeda and the Taliban.
Youssef Nada justified his claim that he should be removed from the list, with the decision of the Swiss Federal Prosecutor of 31 May 2005 to drop the charges against him and Al Taqwa Bank, following a criminal investigation on Al Taqwa opened in October 2001.
The Supreme Court, referring to previous judgments of the European Court of Justice (ECJ), ruled that the Swiss sanctions were not “autonomous”, but the result of the “binding effect” of the decisions of the UN Security Council taken under Chapter VII of the UN Charter. This decision “not only prevails over the domestic law of the member states, but also over any other obligations from international conventions, according to article 103 of the Charter”. The Court therefore ruled that “the global uniform application of UN sanctions would be jeopardized if the courts of individual member states could amend or reverse sanctions against individuals or entities because of possible violations of fundamental rights under the European Convention of Human Rights and the UN International Covenant on Civil and Political Rights”.
Following previous ECJ rulings, the Court stated that the binding effect of UNSC decisions could only be limited by a norm of “jus cogens”, mandatory fundamental provisions of the international law applicable to all international legal entities, including the organs of the UN.
Regarding Nada’s claim that UN sanctions were adopted in contradiction to norms of jus cogens (usually referring to basic human rights) the Court ruled that “fundamental rights (such as property rights, rights of defense and the right to effective judicial protection) are not absolute”. It further stated that the UN sanction mechanism was limited in its nature and time and provides a delisting process.
The Court found that the procedural guarantees raised by the plaintiff as ineffective in the case of the UN sanctions (right to a fair trial and right to an effective remedy) were not considered as “core provisions of international human rights conventions”. In fact, article 15-2 of the European Convention on Human Rights excluded such provisions from the norms for which no derogations are admitted. Therefore, the Court concluded that such norms were not “jus cogens”.
Interestingly, the same day of the Swiss Supreme Court ruling, the U.S. government and the UN decided to remove another Al Taqwa director, Ahmed Idris Nasreddin, from the terrorist sanctions list.
According to a statement of the U.S. Treasury Department, the decision was taken because Mr Nasreddin “no longer fits the criteria for designation” after he has submitted signed statements to the Office of Foreign Assets Control certifying that he has terminated any business relationships with Nada, Bank al Taqwa, “and any other designated individuals and entities, and that he will have no such dealings in the future.” “In the event that Mr. Nasreddin recommences his support for designated terrorist entities, OFAC will not hesitate to re-designate him,” the Treasury statement said. Is Youssef Nada next?
The Swiss Supreme Court ruling is available in its original German language (tf_youssef_nada.pdf).