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Wednesday, May 29, 2024 | Back issues
Courthouse News Service Courthouse News Service

Terror Concerns Support Asset Freeze on Al-Aqsa

(CN) - Europe's highest court reinstated an asset freeze Thursday against a suspected Islamic terrorist group, rejecting claims such sanction are reserved for groups facing active prosecution.

The Al-Aqsa Foundation describes itself as an Islamic social aid institution that provides financial support to organizations with humanitarian projects in Israel, the West Bank and the Gaza Strip.

But the U.S. State Department has accused the organization of providing financial support to the terrorist group Hamas. In 2003, the Treasury Department designated Al-Aqsa as a specially designated global terrorist group for using humanitarian relief as a cover to provide support to Hamas and other terrorists. This designation by the United States froze Al-Aqsa assets and made transactions with the group illegal.

In Europe, the Dutch wing of Al-Aqsa has been fighting its inclusion on the EU Council's terrorism watch list. Its assets have been frozen there since 2003.

Europe's General Court ordered the council to remove the organization from the list in 2007 and annulled further legislative decisions against the group in 2010 after the Netherlands dropped its active investigations into Al-Aqsa's actions.

It ruled that the presence of such investigations must be documented to include a group on the EU Council's terror list.

On appeal, the Dutch government asked the EU high court to examine the conditions under which funds may be frozen.

Citing concerns that lawmakers failed in their duty to regularly maintain and update its terror watch list, Advocate General Verica Trstenjak advised the Court of Justice to uphold the 2010 ruling.

Rejecting this advice on Thursday, however, the Court of Justice annulled the lower court's ruling and upheld the EU Council's decision to freeze Al-Aqsa's assets. The Dutch government's repeal of sanctions against the group is irrelevant to the EU freezing its assets, according to the decision.

"The sole reason justifying that repeal was the objective of preventing an overlap between the national fund freezing measure, imposed by the Sanctieregeling, and the fund freezing measure prescribed at European Union level by [EU law], following the inclusion of the appellant on the list at issue," the Luxembourg court wrote. "That objective is apparent from the grounds for the ministerial regulation repealing the Sanctieregeling. It is corroborated by the fact that that repeal was effected ex nunc, without retroactive effect, and that its repeal on the entry into force of a decision on the freezing of funds at European Union level had already been notified in the grounds for the Sanctieregeling. Thus, the sole objective of that repeal was compliance with [EU law], which provides that a regulation of the European Union is to be binding in its entirety and directly applicable in all member states, which, in accordance with settled case law, precludes in principle the member states from adopting or maintaining national provisions in parallel."

Furthermore, the court noted that the European Council had evidence proving that the Dutch government's decision to sanction Al-Aqsa complied with its own guidelines for handling possible terrorist organizations.

Lawmakers also fulfilled their obligations to review whether Al-Aqsa should be removed from the terror watch list, according to the court.

"It is not apparent from the judgment under appeal that there was evidence showing that, since the adoption of the Sanctieregeling, the factual situation or evaluation thereof by the national authorities had changed in so far as concerns the appellant's involvement in the financing of terrorist activities," the decision states. "Nor does the applicant submit that the General Court failed to take account of such evidence or that the council was in possession of evidence which could have led it to consider that, after the adoption of the Sanctieregeling, the appellant suspended or ceased to contribute to the financing of terrorist activities, irrespective of the fact that the freezing of its funds made such contributions more difficult, if not impossible. Accordingly, it cannot be found that the council failed to comply with its obligation to review under [EU law]."

Al-Aqsa cannot show that the EU Council's actions violate its "fundamental right to unfettered enjoyment of its property," the court concluded.

"The appellant itself acknowledges the legitimacy of the goal pursued, namely combating the financing of terrorism so as to maintain international peace and security, and it does not dispute the suitability of the freezing of funds for achieving that goal," the ruling states. "It disputes only the necessity of the freezing of funds imposed by the contested acts and whether it is proportionate. As regards the necessity of the measure, it should be noted that the alternative and less restrictive measures put forward by the appellant, such as a system of prior authorization or an obligation to justify, a posteriori, how the funds transferred were used, are not as effective in achieving the goal pursued, namely combating the financing of terrorism, particularly given the possibility of circumventing such restrictions."

Neither EU law nor resolutions from the United Nations Security Council to which the EU adheres spell out a partial freeze of a suspected terrorist group's assets or other alternatives, the court concluded.

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