Feature Article

European Court annuls EU restrictions on LTTE

[TamilNet, Thursday, 16 October 2014, 08:40 GMT]
In a landmark victory for the legal initiatives of Eezham Tamils, the Court of Justice of the European Union has ordered the Council of European Union on Thursday to annul the restrictive measures taken against the Liberation Tigers of Tamil Eelam (LTTE). The case has been won by the LTTE on procedural grounds, said the lawyers representing the LTTE. Commenting on the judgement, Mr Lathan Suntharalingam, one of the initiators of the legal move against EU ban on LTTE said: “More than 40 countries in the world directly and indirectly abetted the Sri Lankan State in its genocidal onslaught on Eezham Tamils. The US paradigm of ‘War Against Terror’ was used to crush the LTTE-defended State of Eezham Tamils. The ECJ verdict on Thursday is a milestone achievement for Eezham Tamils in demanding global justice against the Tamil genocide.”

The Court annulled specific restrictive measures directed against certain persons and entities by the EU with its view of combating terrorism.

In addition, the Court has ordered the Council of the European Union, which lost the case, to pay its own costs and the costs of the LTTE. The Netherlands, the UK and the European Commission were ordered to bear their own respective costs.

The court decision will come to effect after three months.

Finding the current restrictions implemented by the EU inappropriate, the Court has given a minimum period of two months, extended on account of distance by 10 days, for the EU to come out with a new restrictive measure with respect to the LTTE, if appropriate.

The case, initiated by Tamil activists on behalf of the LTTE and originally filed in April 2011 with additions later, was represented by the lawyers V. Koppe, A. M. van Eik and T. Buruma.

The Council of the European Union was the defendant, supported by the Netherlands, the UK and the European Commission.

The European Court of Justice (ECJ) is the highest court in the European Union in matters of European Union law.

The judgement was delivered in open court in Luxembourg on 16 October 2014.

The judgement part of the court document follows:

  1. Annuls Council Implementing Regulation (EU) No83/2011 of 31 January 2011, No 687/2011 of 18 July 2011, No 1375/2011 of 22December 2011, No542/2012 of 25June 2012, No1169/2012 of 10 December 2012, No 714/2013 of 25 July 2013, No 125/2014 of 10 February 2014 and No 790/2014 of 22 July 2014 implementing Article2(3) of Regulation (EC) No2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulations (EU) Nos 610/2010, 83/2011, 687/2011, 1375/2011, 542/2012, 1169/2012, 714/2013 and 125/2014 in so far as those measures concern the Liberation Tigers of Tamil Eelam (LTTE);

  2. Maintains the effects of Implementing Regulation No 790/2014 for three months following delivery of this judgment;

  3. Orders the Council of the European Union to pay, in addition to its own costs, the costs of the LTTE;

  4. Orders the Kingdom of the Netherlands, the United Kingdom of Great Britain and Northern Ireland and the European Commission to bear their own respective costs.

* * *

The case came under the following title:

Common foreign and security policy — Restrictive measures against certain persons and entities with a view to combating terrorism — Freezing of funds — Applicability of Regulation (EC) No 2580/2001 to situations of armed conflict — Possibility for an authority of a third State to be classified as a competent authority within the meaning of Common Position 2001/931/CFSP — Factual basis of the decisions to freeze funds — Reference to terrorist acts — Need for a decision of a competent authority for the purpose of Common Position 2001/931.

* * *

The court decision was not any substantive assessment on the classification of LTTE as a terrorist group:

The victory of the LTTE in the case was not based on the principles it stood for in its arguments in the case.

The court also has specifically stated that its decision doesn't annul the classification of the LTTE as a terrorist group.

“The Court stresses that those annulments, on fundamental procedural grounds, do not imply any substantive assessment of the question of the classification of the LTTE as a terrorist group within the meaning of Common Position 2001/931.” (Para 226)

* * *

In its findings, the court has rejected most of the positions taken by the LTTE in the following ways:

“The LTTE is therefore wrong to claim that, in international law, the notions of armed conflict and of terrorism are incompatible.” (Para 67)

“In addition, the LTTE’s argument that the interference by the European Union stems from the discriminatory nature of the European Union’s position, consisting in adopting restrictive measures only against the LTTE and not against the Democratic Socialist Republic of Sri-Lanka, cannot succeed.” (Para 70)

“It follows that the LTTE’s reference to Framework Decision 2002/475 and to a statement of the Council accompanying that Framework Decision is irrelevant.” (Para 75)

“It follows from all of the foregoing considerations that, contrary to what the LTTE claims, Regulation No 2580/2001 is applicable to terrorist acts committed within the context of armed conflicts.” (Para 81)

“The LTTE cannot therefore invoke the existence of an alleged armed conflict between it and the Government of Sri-Lanka in order to exclude itself from the application of Common Position 2001/931 for any terrorist acts which it committed in that context.” (Para 82)

On the LTTE's general objection that the UK and Indian authorities are not competent judicial authorities, the court said:

“The fact alleged by the LTTE that UK and Indian courts have powers concerning the suppression of terrorism does not therefore imply that the Council was not able to take account of the decisions of the national administrative authority entrusted with the adoption of restrictive measures on terrorism.” (Para 108)

“It follows from the foregoing considerations that the LTTE’s general objection (see paragraph 104 above) must be rejected.” (Para 110)

The LTTE's objection to third party position other than the UN Security Council was also rejected by the court:

“The LTTE is incorrect to claim that the only case of a non-criminal decision accepted as a basis for listing are decisions of the Security Council.” (Para 117)

“It follows from the foregoing considerations that the LTTE’s main argument that the inapplicability of the principle of sincere cooperation in the relations between the Union and third States precludes, as a matter of principle, an authority of a third State being classified as a competent authority must be dismissed.” (Para 136)

* * *

The court, on the following grounds, upheld the original position of the Council of the European Union in bringing out the restrictions on the LTTE:

“[A]s the Council rightly points out, the objectives of the European Union and its Member States are to combat terrorism, whatever form it may take, in accordance with the objectives of current international law.” (Para 58)

“As the Council points out, that principle of international law is set out for the benefit of sovereign States, and not for the benefit of groups or movements. Contrary to the LTTE’s submissions, the placing on the list relating to frozen funds of a movement — even if it is a liberation movement — in a situation of armed conflict with a sovereign State, on account of the involvement of that movement in terrorism, does not therefore constitute an infringement of the principle of non-interference.” (Para 69)

* * *

Even though the court has rejected the LTTE’s general objection that the UK and Indian authorities at the issue are not competent authorities, the court accepted LTTE’s position in the following way:

“The LTTE states, correctly, that the list of facts placed at the top of the grounds for the contested regulations does not constitute a competent authority” (Para 103)

* * *

On the following grounds, the court found fault with the Council of European Union for depending on India’s position on the LTTE:

“Unlike [EU] Member States, many third States are not bound by the requirements stemming from the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and none of them is subject to the provisions of the Charter of Fundamental Rights of the European Union.” (Para 138)

“Therefore the Council must, before acting on the basis of a decision of an authority of a third State, carefully verify that the relevant legislation of that State ensures protection of the rights of defence and a right to effective judicial protection equivalent to that guaranteed at EU level. In addition, there cannot be evidence showing that the third State in practice fails to apply that legislation. In that case, the existence of legislation formally satisfying the conditions set out above would not allow the conclusion that the decision was one of a competent authority within the meaning of Common Position 2001/931.” (Para 139)

“[T]he Court finds, as the LTTE has submitted, that the grounds for the contested regulations do not contain any evidence to suggest that the Council carried out such a thorough verification of the extent to which the rights of defence and the right to effective judicial protection were safeguarded under the Indian legislation.” (Para 141)

“[F]or the Indian authorities (a third State), the Council does not provide any assessment of the levels of protection of the rights of defence and to judicial protection provided by the Indian legislation.” (Para 142)

“[T]he Council must, inter alia, carefully verify that the relevant legislation of the third State ensures protection of the rights of defence and a right to effective judicial protection equivalent to that guaranteed at EU level.” (Para 146)

“[N]either the Council nor any intervener in its support responds to the arguments in the application, which are reproduced in the reply, that the repeal of the POTA in 2004 arose from the fact that it had led to arbitrary detentions, acts of torture, disappearances and extrajudicial executions, and that the legislative amendments made after that repeal did not solve the problems.” (Para 150)

“[W]hereas the Council was entitled to classify the UK authorities mentioned in the grounds for the contested regulations as competent authorities, that could not, at the very least as the grounds for the contested regulations are formulated, be the case for the Indian authorities.” (Para 151)

* * *

The court’s decision to annul the restrictions on the LTTE was based on the following procedural issues arising after 2011:

“First, it should be noted that following the adoption, on the basis of decisions of competent national authorities, of a decision placing a person or group on the list relating to frozen funds, the Council must, at regular intervals, and at least once every six months, be satisfied that there are grounds for continuing to include the party concerned in the list at issue.” (Para 157)

“In response to the LTTE’s criticisms in this regard, the Council does not produce any more recent decision of the UK or Indian authorities which it proves that it had at its disposal at the time of the adoption of Implementing Regulation Nos 83/2011 through to 125/2014 and from which it is apparent, in concrete terms, that the acts listed in the grounds had actually been examined and confirmed by those authorities.” (Para 176)

“Those arguments, combined with the lack of any reference in the grounds for the contested regulations to decisions of competent authorities which are more recent than the imputed acts and referring to such acts, clearly show that the Council based the contested regulations not on assessments contained in the decisions of competent authorities, but on information which it derived from the press and the internet.” (Para 186)

“It is apparent from the foregoing considerations that the Council has failed to comply with those requirements of Common Position 2001/931.” (Para 189)

“It [the Council] begins with assessments which are, in actual fact, its own assessments, classifying the LTTE as a terrorist from the first sentence of the grounds — which determines the question which those grounds are supposed to resolve — and imputing to it a series of acts of violence which the Council took from the press and the internet” (Para 192)

“[T]he Council merely cites the initial national decisions and states, without more, that they remain in force.” (Para 196)

“The present case is therefore clearly different from the first cases before the Court relating to fund-freezing measures concerning terrorism after the adoption of Common Position 2001/931” (Para 197)

“Whereas, in those first cases concerning terrorism, the factual basis of the Council regulations had its origin in decisions of competent national authorities, in the present case, the Council no longer relies on facts which were first of all assessed by national authorities, but itself makes its own independent imputations of fact on the basis of the press or the internet.” (Para 198)

“[T]he Council and the Commission are wrong in claiming that the obligation on the Council to derive the factual basis of its fund-freezing decisions from decisions of competent authorities is such as to undermine the European Union’s policy of combating terrorism.” (Para 219)

“In the present case, in the grounds for the contested regulations there are no references to any decision of a competent authority to whose grounds the Court could link the factual evidence upheld by the Council against the LTTE.” (Para 221)

* * *

The court made the following core decision:

“In the light of all the foregoing considerations, from which it is apparent that Regulation No2580/2001 is applicable in the case of armed conflict and, moreover, that the Council infringed both Article 1 of Common Position 2001/931 and — in the absence of a reference in the statement of reasons to decisions of competent authorities relating to the acts imputed to the LTTE — the obligation to state reasons, the contested regulations should be annulled in so far as they concern the LTTE.”

* * *

PPT findings in January 2014:

Earlier this year, the Permanent Peoples’ Tribunal on Sri Lanka, giving its key finding of genocide against Eezham Tamils, also established that the UK and the USA were complicit in the genocide.

“On the strength of the evidence presented, the Tribunal reached the consensus ruling that the state of Sri Lanka is guilty of the crime of genocide against Eelam Tamils and that the consequences of the genocide continue to the present day with ongoing acts of genocide against Eelam Tamils.”

“The Tribunal found that UK complicity in the genocide against the Eelam Tamils during the period of the armed struggle and its repression was overt and explicit and qualifies as ‘aid or assistance’ furnished by one State for the commission of a wrongful act by another State under Article 16 of the International Law Commission’s Articles on State Responsibility.”

“Active US complicity in the genocide arises not only from its sustained efforts to increase the power and effectiveness of the Sri Lankan military, the direct perpetrator of the genocidal acts taking place in the last months of the war, but perhaps even more significantly from its role in blocking and even reversing political and diplomatic initiatives to implement the peace process and in blacking out information on the unfolding critical situation and the unprecedented worldwide protests by Tamil communities in the diaspora. These military and non-military actions constitute ‘the provision of means to enable or facilitate the commission of the crime’, as determined to be included in ‘complicity’ in genocide by the International Court of Justice in February 2007.”

* * *

Poddu Ammaan in 2007:

“We are a small nation, struggling all alone to uphold our rights. But the International Community in an uneven judgement in applying its norms, scaled us with Sri Lankan government abounding with military and economic resources. The scale was not fair,” observed Poddu Ammaan, the Intelligence Head of the LTTE in November 2007, when LTTE’s Political Head was assassinated at his political office in a targeted air-strike by the Sri Lankan military.

* * *

Anton Balasingam in 2001 and 2006:

The LTTE was banned in UK in 2001 at a time when the Sri Lankan State itself had to remove the ban on the LTTE prior to the peace negotiations that commenced following the Ceasefire Agreement (CFA).

“The British decision makers have paid scant regard to the lengthy and complex history of the Tamil political struggle, the ugly history of the genocidal mode of State repression and the glorious history of armed resistance against repression and gross violations of human rights. The British ban of the LTTE is a triumph for Buddhist racism and fascism and a severe blow to peace and justice,” Anton Balasingam said in a statement in February 2001. And, when the EU proscribed the Tigers in 2006, he observed: “[T]his state-biased decision to blacklist the LTTE will boost the Sri Lankan government’s global campaign to cast the legitimate struggle of the Tamil people as a mere phenomenon of terrorism which does not deserve political engagement on its part. The EU intervention will thus emerge as a serious impediment to reaching a just and lasting solution to Sri Lanka’s conflict.”

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