Youssef Mustafa Nada, is an Italian national residing in Campione d’Italia, a small Italian enclave within Switzerland. As a result of sanctions adopted by the UN Security Council after 9/11, he was designated as being associated with Al-Qaeda and hence subject to a travel ban, in effect imprisoning him within the 1.6 km enclave.
On 12 September 2012, the European Court of Human Rights ruled in the case of Nada v. Switzerland that the Swiss government had violated Nada's rights to respect for private and family life and the right to an effective remedy.
This judgment is important for a number of reasons. It marks an important victory for the human rights of those who have been designated by the UN Security Council to be associated with Al-Qaeda and consequently put under sanctions, including the asset freeze and travel ban, sometimes indefinitely. Adopted as preventive measures in the fight against terrorism, the sanctions significantly affect the lives of the designated individuals without providing them with an effective mechanism to challenge their designation.
In this case the Court - for the first time - considered, albeit indirectly, the compatibility of the Al-Qaeda sanctions regime with the ECHR. The Court has previously engaged in merits-based reviews of domestic measures implementing UN Security Council sanctions adopted under Chapter VII of the UN Charter. It also has case law on due process requirements in relation to terrorism cases, including disclosure requirements. However, the Court has never before ruled that a domestic act implementing UN Security Council sanctions violated the ECHR.
The Court observed that Switzerland could not simply rely on the binding nature of the Security Council resolutions, but should have taken all possible measures, within the latitude available to it, to adapt the sanctions regime to the applicant’s individual situation. Because Switzerland had failed to harmonize the international obligations that appeared contradictory, the Court found that there had been a violation of Article 8 of the ECHR.
When the applicant requested Swiss authorities to remove his designation, they considered that the UN Sanctions Committee was the only authorized body to take such a decision. The Court thus held that the applicant did not have any effective remedy to test the violation of his rights, as required by Article 13 of the ECHR. Curiously, the Court found that there was nothing in the Security Council resolutions to prevent the Swiss authorities from introducing mechanisms to verify the measures taken at the national level.
This judgement leaves governments with a problem: under the UN Charter they are obliged to comply with UN sanctions and those sanctions do not seem to give them any latitude in the way they implement the asset freeze or the travel ban. Further, if Swiss authorities reviewed Nada’s designation and decided to lift the sanctions against him at the national level, they would be in breach of their obligation to comply with the Security Council resolutions imposing those sanctions.
The judgment confirms the increased importance of regional and domestic courts in interpreting international law. It also confirms their role as ultimate guardians of human rights as protected within their respective legal orders. While the judgment does not compromise the primacy of the relevant Security Council resolutions on the international level, it clearly affects their implementation at the domestic level. In the absence of an independent and impartial review mechanism at the international level, it is expected that designated individuals and entities will continue to challenge the sanctions before regional and domestic courts.
As a consequence, fragmentation in the implementation of sanctions domestically is inevitable, which, in turn, may further undermine the authority and effectiveness of the Al-Qaeda sanctions regime. Governments need to renew their efforts to secure a more effective review mechanism at the international level.
The applicant, Youssef Mustafa Nada, brought an application to the European Court of Human Rights against the ruling of the Swiss Federal Tribunal which rejected his request to terminate the sanctions against him. In his application, he challenged the legality of the Swiss national measures implementing the sanctions regime on the basis of violations of his human rights under the ECHR. On 23 September 2009, the Al-Qaeda Sanctions Committee removed Nada’s designation and the sanctions were accordingly lifted.
There have been other cases by other courts. In the Kadi case, the European Court of Justice quashed an EU law designed to give effect to Al-Qaeda sanctions on the ground that it violated the appellants’ right to be heard, right to an effective legal remedy and right to property as protected by the EU legal order. And in Sayadi, the UN Human Rights Committee found that Belgium’s domestic implementing act violated the petitioners' freedom of movement under Article 12, as well as unlawfully interfered with their rights to privacy and home, and attacked their reputation, in violation of Article 17 of the International Covenant on Civil and Political Rights.