Abstract
This essay offers a fresh perspective on the interplay between international security measures and individual human rights by critically analysing the application of United Nations Security Council Resolution 1483 through the lens of the Al-Dulimi case. Many scholars have commented on this landmark case, drawing on parallels with the Kadi case. However, this note intentionally shifts the focus, exploring the tension between global counter-terrorism efforts and the protection of fundamental rights under the European Convention on Human Rights. The essay evaluates the Swiss judiciary’s implementation of asset freezes, highlighting significant violations of the rights to property and a fair trial. By examining procedural safeguards such as legitimacy, necessity, and proportionality, the analysis underscores the insufficiency of current mechanisms in safeguarding individuals against the arbitrary use of power. Ultimately, it challenges the balance struck by international organisations and member states in prioritising collective security over individual freedoms, while reflecting on the broader implications for international law, particularly the harmonisation of obligations under the UN Charter and regional human rights treaties.
Introduction
Modern states are increasingly interconnected due to the development of technology and communication, becoming what is now coined a ‘global village’.[1] This shift, alongside increased interdependence between nations, has led independent states to develop close links and collaborations with each other. Accordingly, international law has developed to regulate relations between sovereign states, defining their rights, duties, and interactions with entities like international organisations (‘IOs’).[2] International law has been especially influenced by the Second World War, which, with the creation of the United Nations (‘UN’), highlighted its fundamental aim of securing international peace and security.[3] In fact, several legal scholars highlight that international law must be functionally oriented towards the maintenance of world peace and the protection of human rights.[4]
In order to maintain peace, the UN Security Council (‘UNSC’) adopts binding resolutions for its Member States (‘MS’) that make use of several strategies, including diplomatic measures, economic sanctions, and the use of force.[5] According to Article 41 of the UN Charter, ‘sanctions’ is a general term that involves several possible enforcement options which do not involve the use of armed forces.[6] These interventions, generally consisting of asset freezes and travel bans, are imposed on individuals who are seen as potential terrorist threats by the international community.[7] Since 1966, the UNSC has established 31 sanction regimes, several of which have recently come under scrutiny.[8] For instance, Resolution 1483 established the occupying power’s authority to freeze the funds of individuals linked to Saddam Hussein’s former regime in Iraq.[9] This resolution provides a key example of the UNSC’s actions in the context of international law, highlighting the challenges of ensuring compliance with human rights protections in the face of collective security measures. Scholars argue that procedural safeguards are necessary to keep the UNSC in check, and to limit the arbitrary use of power by IOs and by states acting in the name of the UN.[10] However, it is unclear to what extent the procedural safeguards of legitimacy, necessity, and proportionality are sufficient to protect individuals when faced with significant human rights abuses.
This note examines the Al-Dulimi (no. 5809/08) case, which highlights the tension between UNSC Resolution 1483 and the human rights protections provided by the European Convention on Human Rights (‘ECHR’).[11] To this end, the note seeks to answer the following question: To what extent does the application of UNSC Resolution 1483 impact the protection of individuals’ human rights in the pursuit of global security? The note is divided in two sections. In Section 1, it begins with an overview of the Al-Dulimi case, outlining its factual background and legal context before evaluating whether the application of UNSC Resolution 1483 leads to human rights abuses. It specifically analyses violations of individuals’ rights to property and to a fair trial. In Section 2, this article will evaluate the extent to which the procedural safeguards of legitimacy, necessity, and proportionality are effective measures against excessive abuses of human rights.
The note concludes that the application of UNSC Resolution 1483 by the Swiss Federal Court in the Al-Dulimi case grossly violated the applicants’ rights in the pursuit of global security. This application of the law is questionable, as UNSC Resolution 1483 was applied by the Swiss judiciary without substantial regard to the values of legitimacy, necessity, or proportionality. Therefore, the analysis demonstrates that the procedural safeguards employed in this case are insufficient to protect individuals against the arbitrary use of power by governments, which violates individual rights as a means to the end of combating terrorism.
Section 1: UNSC Resolution 1483, the right to property and the right to a fair trial
The first section will evaluate whether the application of UNSC Resolution 1483 leads to human rights abuses, specifically analysing the potential violation of individuals’ rights to property and to a fair trial.
Section 1.1: Overview of the case of Al-Dulimi
To analyse the legality of Resolution 1483 with regards to human rights, an overview of the Al-Dulimi case must first be provided. This case concerned UNSC Resolution 1483, which set the status and capacity of the occupying power to freeze the economic funds of individuals associated with or connected to the former Saddam Hussein regime in Iraq.[12] The proceedings were initiated by the applicants, Khalaf Al-Dulimi and Montana Management Inc. Al-Dulimi was the managing director of Montana Management Inc, whose private assets were frozen by the Swiss authorities. The Swiss judiciary justified the infringement on Al-Dulimi’s right to private property by stating that he was the Head of Finance for the Iraqi secret services, which were included on the UNSC sanctions list. The applicant challenged the Swiss tribunal based on the infringement of human rights protection, relying on the right to a fair trial under Article 6 and the right to peaceful enjoyment of possessions and property under Article 1 of Protocol No. 1 ECHR.[13]
In its judgment, the European Court of Human Rights (‘ECtHR’) ruled in favour of the applicant, holding that Switzerland had unjustly deprived Al-Dulimi of his fundamental rights without due process. The judgment involved a notable 15-2 vote split, signalling a divergence of opinion within the Court regarding the balance between national security measures and the protection of human rights. The dissenting judges held that the sanctions were a legitimate response to the broader goals of international peace and security, suggesting that the ECtHR had overstepped its boundaries by limiting the scope of the UNSC’s authority. This opinion is key to understanding the ongoing debate about the role of international institutions in enforcing security measures and whether such actions should override individuals’ human rights.
As such, this section will evaluate the following question: How does the ECtHR’s judgment in the Al-Dulimi and Montana Management Inc. v Switzerland case highlight violations of Article 1 of Protocol No. 1 and Article 6 of the ECHR? Section 1.2 will analyse the violation of Article 1 of Protocol No. 1, followed by Section 1.3 which evaluates the violation of Article 6 of the ECHR.
Section 1.2: Violation of Article 1 of Protocol No. 1
Article 1 of Protocol No. 1 states the following:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.[14]
As affirmed in Bramelid and Malmström v Sweden, Dabić v the former Yugoslav Republic of Macedonia, and Vulakh and Others v Russia, Article 1 prohibits unlawful interference with property rights.[15] Initially, it seems that by implementing the UNSC sanctions, the Swiss Federal Court breached the right to property of the applicant as it inhibited Al-Dulimi from accessing his possessions. However, the second part of Protocol No. 1 highlights the possibility of interference with the right to enjoyment of possessions if the inhibition is based on the protection of the public interest. Furthermore, as held in Beyeler v Italy, state interference with this right is legitimate if it is lawful, pursues a legitimate aim, and is proportionate to the goal sought.[16] Therefore, it cannot be clearly established that the decision of the Court is illegitimate.
The Court’s action to freeze the applicant’s assets pursued a legitimate aim as it was in line with the sanctions afforded to individuals nominated in the sanctions list, based on UNSC Resolution 1483.[17] Yet, the Swiss authorities solely checked whether the applicants were effectively named in the list created by the Sanctions Committee and whether the assets in question effectively belonged to the applicants, without examining the specific circumstances.[18] The Court’s level of scrutiny fell short of what was required, as it did not analyse whether the asset freezes were proportionate and necessary, nor did it provide sufficient protections against abuse. Therefore, this evaluation by the Court caused arbitrary interference.
To legitimately override the right to property of the applicants, the authority’s action must be based on clear and foreseeable rules.[19] However, the Court failed to provide Al-Dulimi with the facts concerning the legal basis and duration of the asset freezes. This conduct lacked both an adequate justification and a periodic review, leading to a decision that was neither certain nor legitimate.[20] Moreover, interference with individuals’ private property necessitates effective remedies,[21] which the Swiss legal framework lacked. The national proceedings also lacked an unbiased assessment of the necessity and proportionality of the asset freezes present in the case.[22] Therefore, the measures violate Article 1 of Protocol No. 1because they were illegitimate and represent a clear lack of proportionality between the sanction limiting the applicants’ access to their private property and the UNSC’s goal of combatting the financing of terrorism.
Section 1.3: Violation of Article 6 of the ECHR
Article 6 of the ECHR concerns the right to a fair trial and holds that ‘[i]n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…’.[23] As stated by the Human Rights Committee, the right to a fair trial is an important aspect of human rights protection and seeks to secure the rule of law by procedural means.[24] Article 6 grants procedural rights, including prompt notification, sufficient time and resources for defence preparation, self-representation and additional protections. However, as clarified in Guérin v France and in Omar v France, this right is not absolute. It allows for certain exceptions, provided that the essence of the right is not undermined and that the exceptions are both legitimate and proportionate to the objective being pursued.[25]
Considering the foregoing, the impartiality of the Swiss Court can be called into question. The body responsible for implementing the asset freezes was the Federal Department of Economic Affairs, Education and Research (‘EAER’) – a federal administrative body that is, by nature, inherently part of the executive branch of government, thus lacking the judicial or quasi-judicial independence required to impartially assess the applicants’ property rights. As such, its involvement in determining the inclusion of individuals on the Sanctions Committee’s list may undermine the fairness and neutrality expected in such decisions.[26] In Bosphorus v Ireland, the ECtHR stated that Switzerland may not disregard its human rights obligations by institutions that are not members of any human rights protection system, such as the EAER,[27] thus reinforcing the claim that the EAER lacks the necessary independence to impartially evaluate the applicants’ property rights and should not make decisions on human rights-related matters without proper checks and balances.
Furthermore, Article 6 guarantees the right to a public oral hearing to protect litigants against the secret administration of justice without any public scrutiny, and requires a public hearing and the public delivery of judgments.[28] This principle is fundamental to democracy, as emphasised in a number of significant cases such as Riepan v Austria, Krestovskiy v Russia, and Sutter v Switzerland.[29] In these cases, the national courts conducted proceedings behind closed doors, thus arbitrarily excluding the public and violating Article 6. In these cases, the ECtHR accentuated that public hearings are essential for ensuring transparency, fairness, and accountability in judicial processes. The Al-Dulimi case involves a significant violation of the applicants’ right to property, which would further merit a public hearing. Yet, this right was not granted to the applicants by the Swiss authorities, which overlooked this fundamental aspect of a fair trial, thereby violating Article 6.
A fair trial also requires the provision of adequate time and facilities for individuals to prepare their defence.[30] This detail was likewise overlooked by the Swiss Court during the Al-Dulimi proceedings. Although accused of ties to Saddam Hussein’s regime, the applicant was denied access to the evidence justifying their asset freeze.[31] This lack of disclosure inhibited the applicants from preparing an effective defence to properly challenge the court’s evidence or refute the claims made against them.
The issue was worsened by timing, as the applicants had less than a month to respond, being notified of the asset freeze on 15 December 2004 and given until 13 January 2005 to challenge it.[32] This brief period impeded them from properly assessing the complex legal and factual issues at stake. This somewhat precipitous decision hindered the applicants from securing legal representation for an adequate defence, failing to uphold the procedural safeguards of Article 6 ECHR.[33]
Lastly, the Swiss Court failed to provide a meaningful appeal or remedy for the applicants, as it lacked a forum where they could effectively challenge the asset freeze or present their case fully.[34] This further exacerbated the violation of Article 6, which not only guarantees the right to a fair trial but also includes the right to an effective remedy in the event of violations of the Convention.[35]
As stated in the Guide on Article 1 of Protocol No. 1 of the ECHR, the present case depicts a clear aberration of Article 1 of Protocol No. 1 and Article 6.[36] In its ruling, the Court concluded that the Swiss Federal Court’s approach – limiting itself to confirming that the applicants’ names appeared on the Sanctions Committee’s lists and that the assets in question belonged to them – was legitimate, as it sought to effectively implement the UNSC Resolution. Nonetheless, this implementation lacked proportionality between the requirements of the Resolution and the means employed, as the applicants were not provided with the ability to challenge the measures for a considerable period.[37] The Court thus held that such an approach was effectively undemocratic and violated Article 1 of Protocol No. 1 and Article 6, suggesting that Switzerland is liable for breach of the Convention.[38]
Section 2: Effectiveness of Procedural Safeguards in Protecting Human Rights
This section now considers the question: To what extent can the disregard for individual human rights be justified based on national security and counter-terrorism grounds? Accordingly, the legality of violations of human rights, as well as the balance required in this process will be analysed. Given the serious threat of terrorism, one may assume that the violation of human rights of certain individuals may be justified where it contributes substantially towards ending international terrorism.[39] However, such an action must be legal and justifiable, based on the principles of necessity and proportionality.[40]
Section 2.1: Principle of Legality
Regarding legal legitimacy, for a derogation of human rights to be legitimate, an act must be in line with the principle of legality and have a sound legal basis.[41] The Universal Declaration of Human Rights of 1948 refers to certain scenarios where states may lawfully restrict individual human rights. Limitations can be placed on rights and freedoms solely if they are ‘determined by law’ and with the justifiable aims of public order and general welfare.[42] Legality is a principle of statutory interpretation holding that limitations on human rights must be prescribed by formal laws that are clearly worded and discernible to the population.[43] This element seeks to enable states to achieve their counter-terrorist and national security aims, whilst ensuring that measures are not arbitrarily applied. However, as seen in Al-Dulimi, the aims of human rights protection and effective counter-terrorism measures do not always work in tandem.[44] As mentioned, states may deviate from human rights law in some specific circumstances. For instance, Article 4(1) of the International Covenant on Civil and Political Rights (‘ICCPR’) states that a government may derogate legitimately from certain human rights obligations in times of ‘public emergency which threatens the life of the nation’.[45]
Section 2.2.a: Necessary and Proportionate
Having now established a legitimate legal basis for human rights violation, it is necessary to evaluate whether such a measure is necessary and proportionate.[46] For a human rights violation to be necessary, there must be a rational link between the limitation and the counter-terrorism objective, as stipulated by the UNSC Resolution.[47] However, case law shows that necessity is usually evaluated through a logical link between the two aspects, though additional evidence may be needed if the link is unclear.[48] The Al-Dulimi case illustrates this, demonstrating that the ECtHR’s application of necessity lacks transparency.
Lastly, the principle of proportionality states that any government interference with human rights must be balanced and reasonable in relation to the legitimate goal it aims to achieve. Although not explicitly stated in all human rights treaties, this guiding principle receives repeated mention in key documents, including the UN Charter, the ECHR, and Article 4 of the ICCPR. Article 4 allows member states to limit human rights protections during public emergencies, provided the measures are ‘strictly required by the exigencies of the situation’ and comply with other international law obligations. Since this principle is not strictly determined in international law, this concept acts as a general principle, which is flexible and context-specific. According to the ECHR, proportionality requires an evaluation between the rights being violated and the public benefit being achieved.[49] This principle is essential to sustain the notions of ‘justice, fairness, and reasonableness’ because violations of human rights may be legitimate on grounds of public safety, but proportionality must be invoked to limit its arbitrary use by states.[50] Therefore, governments are accountable for demonstrating that measures limiting individuals’ rights are justified and take into account both the positive and negative impacts.
However, applying this principle is problematic because it is a polysemous concept, assuming different meanings depending on its context. Its interpretation also relies on the subjective value-judgements of the judiciary.[51] In theory, the challenging, subjective nature of these value-judgements are lessened by the ‘Objective Proportionality Criteria’.[52] According to this assessment, state measures that limit individual human rights must serve a legitimate state interest, be necessary (meaning no less restrictive means are available to achieve that interest), and be proportionate in the strict sense (i.e., not excessive in relation to the burden they impose on the affected individuals).[53] Nonetheless, this assessment seems to have more of a theoretical application as recent jurisprudence demonstrates the varied definition, application, and evaluation of this principle.[54] To formalise this test, different judicial bodies have developed more concrete tests; the International Court of Justice generally uses the ‘vertical’ test, whereas the ECtHR uses the ‘horizontal’ test.[55] In determining whether state measures comply with this principle, the responsible body is the ECtHR. It decides, among other things, whether member states have exceeded what is ‘strictly required by the exigencies’ of the public emergency.[56]
Regarding the Al-Dulimi case, the court recognised that certain situations grant the necessity of a restriction of an individual’s human rights. Although the restriction was imposed during a period without a ‘public emergency’ in the country, Switzerland justified the violation of Al-Dulimi’s right to a fair trial, stating it was necessary to maintain international peace and security, a legitimate reason for the action.[57] Even though the Court ruled that the violation of the applicant’s right to access a court pursued a legitimate aim, the Swiss Court illegitimately infringed Al-Dulimi’s right to a fair trial because such action was not proportionate or necessary, and ultimately led to a violation of Article 6 ECHR.[58] The Court held that even if this right was not absolute or guaranteed by jus cogens, a strict application of the proportionality principle was necessary.[59] Therefore, Switzerland imposed an excessive restriction on Al-Dulimi’s rights under Article 6 ECHR, as the sanction lasted for a long period and unjustifiably prevented the applicant from presenting evidence to challenge his arbitrary inclusion on the Sanctions Committee’s contested list.[60]
Judge Nussberger dissented, supporting the Swiss Court’s sanctions. She argued that Article 6 ECHR could be overridden in cases involving national security or international peace, as combatting terrorism may justify the temporary and targeted nature of such measures.[61] To this end, the Judge took a holistic approach stressing the fact that the primary objective of these measures was to address the severe and growing threat posed by international terrorism, which transcends borders and impacts global security. In this context, the imposition of asset freezes and other sanctions represents a legitimate and necessary tool for ensuring compliance with the UNSC’s decisions, which are binding under international law.[62] In evaluating the proportionality of the sanctions, Judge Nussberger considered the balance between individual rights and the broader need for security. In this case, the Swiss authorities ensured that a review mechanism was in place, thus upholding proportionality.[63] This mechanism provided a way for the individual to challenge the asset freeze, ensuring that there was a legal process through which the sanctions could be reviewed and potentially lifted.[64]
Nonetheless, the stance taken by Judge Nussberger – that the application of international law in these instances should be prioritised over national human rights concerns – could set a perilous precedent. It opens the door to widespread disregard for individual freedoms under the guise of security, potentially leading to unchecked state power, and ultimately undermining the integrity of the international human rights system.
2.2.b: Recent Developments
Fortunately, Judge Nussberger’s approach is not the prevailing approach taken by the courts. Recent case law has highlighted a trend towards ensuring that measures taken under UNSC resolutions comply with human rights standards, particularly regarding necessity, legality, and proportionality, as reinforced in the Al-Dulimi case.
In Sayadi and Vinck v Belgium and Ahmed and others v HM Treasury, the applicants suffered asset freezes and restrictions of movement based on UNSC resolutions 1267 (1999), 1333 (2000), 1390 (2002), and 1455 (2003), as well as European Union Council Regulation No. 881/2002 in pursuit of the aim of restricting the movement of individuals associated with terrorist activities.[65] The UN Human Rights Committee ruled that such restrictions violated their rights under the ICCPR, and particularly their rights to property under Article 1 of the First Protocol to the ECHR, in addition to their rights to privacy (Article 17 ICCPR) and freedom of movement (Article 12 ICCPR).[66] The UN Human Rights Committee emphasised that to justify restrictions violating the ICCPR, necessity and proportionality must be assessed.[67]
Similarly, in Ahmed and others v HM Treasury, the UK Supreme Court found that the Terrorism (United Nations Measures) Order 2006, which imposed asset freezes on the applicants, was illegal.[68] This act was ultra vires the United Nations Act 1946, as it failed to provide adequate procedural safeguards and violated the appellants’ rights to a fair trial and the right to effective remedy, under Articles 6 and 13 ECHR respectively.[69] The Supreme Court emphasised the principles of necessity and proportionality, ruling that the restrictions could not be justified under the ICCPR.[70]
Doctrinal research in the field adopts a similar stance. For instance, Daley J Birkett, in his analysis of the human rights implications of asset-freezing processes at the European and Inter-American Courts of Human Rights, concluded that these measures must respect the fundamental rights to property and private life.[71] This should be achieved by adhering to the principles detailed in the ECtHR’s jurisprudence, namely the concepts of time-limits, legality, legitimate aim, and proportionality.[72] Ron van der Horst evaluated the asset freezes imposed on Russia’s central bank in response to the invasion of Ukraine, arguing that while such measures may be justified as counter-measures, they must still comply with human rights standards, highlighting the ongoing scholarly emphasis on balancing security measures with the protection of fundamental human rights.[73]
Conclusion
In conclusion, the case of Al-Dulimi demonstrates how UNSC Resolution 1483, in the name of counter-terrorism and the pursuit of global security, violated the applicants’ rights to property and to a fair trial. Both the UNSC and its member states, in this case Switzerland and its Federal Court, fell short of human rights protection and disregarded individual freedoms without applying the necessary cost-benefit analysis. Therefore, the procedural safeguards employed in this case and many others are insufficient to protect individuals against the arbitrary use of power. Ultimately, depending on whether the judiciary believes a state’s violation of an individual’s human rights to be legitimate, necessary, and proportionate, the result is an ‘all or nothing’ framework leading to significant consequences for individuals, which raises further questions as to the respect afforded by IOs to individuals’ human rights. However, recent judicial trends reflect an increasing commitment to upholding human rights, suggesting that courts are adopting a more vigilant posture in scrutinising measures that infringe individual freedoms, even when these measures are taken under the guise of international security.
[1] Richard Falk, Law in an Emerging Global Village: A Post-Westphalian Perspective (Transnational Publishers 1998) 40.
[2] Henry G Schermers and Niels M Blokker, International Institutional Law (6th edn, Brill Nijhoff 2018) 789-802.
[3] United Nations, ‘Maintain International Peace and Security’ <https://www.un.org/en/our-work/maintain-international-peace-and-security> accessed 9 November 2023.
[4] Cecilia M Bailliet, ‘Peace Is the Fundamental Value That International Law Exists to Serve’(2017) 111 Proceedings of the ASIL Annual Meeting 308, 312.
[5] UN, ‘Maintain Peace and International Security’ (n 3).
[6] Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, art 41.
[7] Nadeshda Jayakody, ‘Refining United Nations Security Council Targeted Sanctions: ‘Proportionality’ as a Way Forward for Human Rights Protection’ (2018) 29 Security and Human Rights 90-119.
[8] UN, ‘Maintain Peace and International Security’ (n 3).
[9]Alexander Orakhelashvili, ‘The Post‐War Settlement in Iraq: The UN Security Council Resolution 1483 (2003) and General International Law’ (2003) 8 Journal of Conflict and Security Law 307; Yannick Weber, ‘United Nations Security Council Resolutions and the European Court of Human Rights: Conflict or Systemic Integration? A Case Study of Switzerland’ in Jure Vidmar (ed), Hague Yearbook of International Law, vol 30 (Brill Nijhoff 2017).
[10] Jayakody (n 7).
[11] Al-Dulimi and Montana Management Inc. v Switzerland [2016] ECHR 5809/08 (‘Al-Dulimi’).
[12] Orakhelashvili (n 9); Weber (n 9).
[13] Al-Dulimi (n 11).
[14] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (‘ECHR’) Protocol 1, art 1.
[15] Council of Europe, ‘Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights’ (European Court of Human Rights, 31 August 2020) <Guide on Article 1 of Protocol No. 1 – Protection of property> accessed 26 March 2025; Bramelid and Malmström v Sweden (1983) App nos 8588/79 and 8589/79 (Commission Decision, 12 December 1983); Dabić v The Former Yugoslav Republic of Macedonia App no 59995/00 (ECtHR, 23 October 2001); Vulakh and Others v Russia App no 33468/03 (ECtHR, 10 January 2012).
[16] Council of Europe (n 15); Beyeler v Italy (2000) 33 EHRR 1224.
[17] United Nations Regional Information Centre for Western Europe,‘How the European Union and the United Nations Cooperate’ (2007) <https://unric.org/en/wp-content/uploads/sites/15/2021/02/Leporello_EU-VN_e.pdf> accessed 9 November 2023.
[18] Council of Europe (n 15).
[19] ibid; Baykin et autres v Russia App No 45720/17 (ECtHR, 12 December 2020) [70]-[74].
[20] Stefan Kadelbach,‘Introductory Note to Al-Dulimi and Montana Management Inc. v Switzerland’ (2016) 55(6) International Legal Materials 1023.
[21] Council of Europe (n 15); Kotov v Russia App No 54522/00 (ECtHR, 3 April 2012) [113]; Blumberga v Latvia App No 70930/01 (ECtHR, 14 January 2000) [67].
[22] Swiss Federal Council, ‘Switzerland Breached European Convention in Al-Dulimi Case’ (Federal Office of Justice, 21 June 2016) <https://www.admin.ch/gov/en/start/documentation/media-releases.msg-id-62332.html> accessed 9 November 2023.
[23] Art 6(1) ECHR.
[24] Office of the United Nations High Commissioner for Human Rights (‘OHCHR’), ‘Human Rights, Terrorism and Counter-terrorism: Fact Sheet No. 32’ (2 July 2008) <Factsheet32EN.pdf> accessed 29 March 2025.
[25] Guérin v France [1998] ECHR 25201/94; Omar v France (1998) 29 EHRR 10.
[26] Swiss Federal Council (n 22).
[27] Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland (2005) 42 EHRR 1; Kadelbach (n 20).
[28] Art 6(1) ECHR; Sutter v Switzerland (1984) 6 EHRR 272; Tierce and Others v San Marino (2000) 34 EHRR 672.
[29] Riepan v Austria [2000] ECHR 35115/97; Krestovskiy v Russia App no 14040/03 (ECtHR, 28 October 2010); Sutter v Switzerland (n 28).
[30] Art 6(3)(b) ECHR.
[31] Al-Dulimi (n 11).
[32] ibid.
[33] Art 6(3)(b) ECHR.
[34] Al-Dulimi (n 11); Art 13 ECHR.
[35] Art 6(3)(b) ECHR.
[36] Council of Europe (n 15).
[37] Kadelbach (n 20).
[38] Council of Europe (n 15).
[39] George C Marshall Centre for Security Studies, ‘Counter-terrorism and the Use of Force in International Law’ (Marshall Centre, 2020) <https://www.marshallcenter.org/en/publications/marshall-center-papers/counter-terrorism-and-use-force-international-law> accessed 8 January 2025.
[40] Art 15 ECHR; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (‘ICCPR’) art 4(1).
[41] Oscar M Garibaldi, ‘General Limitations on Human Rights: The Principle of Legality’ (1976) 17 Harvard International Law Journal503.
[42] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) art 29(2).
[43] Jason NE Varuhas, ‘The Principle of Legality’ (2020) 79(3) Cambridge Law Journal 578, 580-82.
[44] OHCHR (n 24).
[45] ICCPR, art 4(1).
[46] Art 15 ECHR; ICCPR, art 4(1).
[47] ibid.
[48] OHCHR (n 24).
[49]Artūras Panomariovas and Egidijus Losis, ‘Proportionality: from the Concept to the Procedure’(2010) 120(2) Jurisprudencija 257.
[50] Jayakody (n 7).
[51] Panomariovas and Losis (n 49); Jayakody (n 7).
[52] Panomariovas and Losis (n 49).
[53] Chris Backes and Mariolina Eliantonio, Cases, Materials and Text on Judicial Review of Administrative Action (Hart 2019).
[54] Francisco J Urbina, ‘A Critique of Proportionality’ (2012) 57(1) American Journal of Jurisprudence 49.
[55] Panomariovas and Losis (n 49).
[56] Médecins Sans Frontières, ‘Proportionality’ (The Practical Guide to Humanitarian Law) <https://guide-humanitarian-law.org/content/article/3/proportionality/> (accessed 9 November 2023).
[57] Jayakody (n 7).
[58] Weber (n 9).
[59] Kadelbach (n. 20).
[60] Jayakody (n 7).
[61] Al-Dulimi (n 11), Dissenting Opinion of Judge Nussberger 145.
[62] ibid 148.
[63] ibid 146.
[64] ibid.
[65] Sayadi and Vinck v Belgium [2008] Merits, UN Doc CCPR/C/94/D/1472/2006, IHRL 3216 (UNHRC 2008) 22 October 2008.
[66] Sayadi (n 65); ICCPR, arts 12, 17; Art 1, Protocol 1 ECHR.
[67] Sayadi (n 65); Daley J Birkett, ‘Asset Freezing at the European and Inter-American Courts of Human Rights: Lessons for the International Criminal Court, the United Nations Security Council and States’ (2020) 20(3) Human Rights Law Review 502, 511.
[68] Ahmed and others v HM Treasury [2010] UKSC 5, [2010] 2 AC 534.
[69] Ahmed (n 68); Arts 6 and 13 ECHR.
[70] Ahmed (n 68) [122] (Lord Hope).
[71] Birkett (n 67).
[72] ibid.
[73] Ron van der Horst, ‘Illegal, Unless: Freezing the Assets of Russia’s Central Bank’ (2023) 34(4) European Journal of International Law 1021.
Alberta Davanzo di Cozur
LLM candidate in European Business and Social Law (Bocconi University)