Secret justice inside the EU courts

Proposed changes will allow EU judges to use secret intelligence as evidence and protect sanctions from legal challenge.

The Security Council's sanctions mechanisms have evolved since they were applied on Iraq in early 1990s, writes Sullivan [AFP/Getty Images]

The courts of the European Union are usually seen as protectors of fundamental rights and guardians against the abuse of power in the global war against terror. But there is another process unfolding that is taking the EU courts in a rather different and more troubling direction.

In March it was revealed that the European General Court (EGC) is seeking to rewrite its own rules to allow the use of intelligence as evidence in legal proceedings. While the executive and judiciary will be able to see secret material, people targeted by intelligence who bring legal challenges will not.

Rules about evidence are usually of little interest outside of the circle of lawyers who use them everyday. But these reform proposals contain a story of profound political significance that starts with Saddam Hussein and concludes with al-Qaeda and the threat of Iranian nuclear proliferation. If approved by EU Member States, they will weaken due process rights, strengthen executive power and radically transform the way justice is done in Europe.

The evolution of targeted sanctions

In the 1990’s the UN Security Council infamously applied comprehensive sanctions against Iraq, with devastating impact on the civilian population. Given the criticism this humanitarian debacle provoked the UN began developing “targeted” sanctions against specific individuals and groups. Targeted sanctions have since proliferated worldwide with thirteen different UN regimes currently in place. When the Security Council disagrees, like with Syria and the Ukraine, then coordinated EU and US sanctions tend to be used instead.

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But targeted sanctions are not only tools of economic statecraft. They are also legal weapons of war. In 1999 the Security Council created a sanctions regime against individuals “associated with” the Taliban. After 9/11 this regime was radically repurposed to target anyone suspected of association with al-Qaeda or any other affiliated terrorist groups worldwide.

Hundreds of people (mostly Tunisians and Algerians) were hastily blacklisted on the basis of secret intelligence suggesting association with al-Qaeda. Their assets were frozen; they were banned from travelling and effectively turned into “prisoners of the state“.

These sanctions offered national executives a powerful international tool for disrupting the lives of terrorist suspects without due process constraints. Because targeting decisions are taken by the Security Council there is no possibility to subject them to judicial review. And because the reasons for listing are intelligence-based they are withheld from the Security Council, those that implement the sanctions (including the EU) and targeted individuals.  

What began as an experiment in humanitarian governance quickly became a new kind of international state of emergency.

When targets started challenging these sanctions in courts, their core tensions began rising to the surface. It became clear that executive bodies often didn’t know the real reasons why they were targeting people. Or if they did know, they could not disclose why for security reasons.   

The end result was the same. Those targeted were prevented from defending themselves in court because they didn’t know what the allegations against them actually were. And the courts were unable to properly perform judicial review because it was unclear how the executive took their listing decisions

These issues came to head in 2008 with a landmark decision by the European Court of Justice (ECJ), which affirmed that individuals have the right to be told the reasons why they are listed and the EU must respect fundamental rights when implementing UN targeted sanctions. The impact of this decision quickly spread into other EU sanctions regimes. Iranian sanctions, also intelligence-based, began being overturned on similar due process grounds.

These decisions sent shockwaves through world capitals and the international legal community for challenging the implementation of Security Council resolutions. Leaked US Embassy Cables warned that “we cannot risk losing the use of one of our few non-military coercive tools because the EU courts believe that they are somehow illegitimate.” A “coordinated US interagency strategy” targeting EU leaders was urgently needed to “protect these policies from legal challenge”. Sanctions experts despaired that these decisions challenged “the legal authority of the Security Council in all matters, not just in the imposition of sanctions”.

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If UN sanctions were to survive scrutiny by EU courts then something clearly had to give.

Global security politics    

The Security Council made the first move by appointing an Ombudsperson to receive applications from targeted individuals and make “recommendations” about whether they should stay on the list. But it wasn’t enough to satisfy the courts. The Ombudsperson still did not access all of the classified material and failed to meet basic standards of international human rights law.

So in 2013 the ECJ upped the stakes even further by reviewing the substance of UN targeting decisions for the first time. But in a hint of what was soon to come, the court made a crucially important distinction. Secret evidence did not need to be given to targeted individuals anymore. But it had to be given to the judiciary who could apply special “techniques” to protect its confidentiality.   

Just what such “techniques” might mean remained unclear at the time. Changes to EU court rules allowing the use of secret intelligence provide the missing piece to this puzzle. Indeed, something had to give. This time, it was fundamental rights and the EU justice system itself that would need to change.

These reforms promise to carve an exception to the principle of open justice right into the heart of the EU legal system. Being able to confront your accuser and challenge the evidence used against you has been considered essential to procedural justice for centuries. Using intelligence as evidence dispenses with this principle and takes the EU courts into complex and uncharted legal territory.

A system of “special advocates” – security-vetted lawyers who can see secret material and make arguments to the court about it, but cannot discuss it with their clients – will need to be created, even though similar schemes have been widely criticised for their unfairness.  

The reforms will undoubtedly help the EU judiciary cut through the enormous backlog of sanctions cases lining up to be heard before the court. But they will also strengthen the powers of the UN Security Council by undermining the “threat” of European judicial review. And boost the power of the US, who relies on EU sanctions to realise their security objectives in Iran, Syria and elsewhere.

When will the public get a say in this reform process, which alters the very architecture of the EU justice system? When similar changes were introduced in the UK they provoked vigorous constitutional debate. But these EU reforms are being negotiated behind closed doors with very little public discussion.   

It would be a grave mistake to assume that these procedural changes only affect suspected terrorists targeted by sanctions. They affect anyone who wants to challenge the abuse of executive power in the EU courts where “security-sensitive” information might be involved. And as the Edward Snowden disclosures plainly reveal, whether we like it or not, we are all intelligence targets now.

Gavin Sullivan is a doctoral candidate in the politics department at the University of Amsterdam and a solicitor representing individuals targeted by the UN al-Qaeda sanctions regime. He has previously written for The Guardian and is the author of “Transnational Legal Assemblages and Global Security Law: Topologies and Temporalities of the List” (2014) 5(1) Transnational Legal Theory (forthcoming).