Khalaf M. Al-Dulimi, the suspected finance boss of Iraqi secret services under Saddam Hussein, has won an important case against Switzerland at the European Court of Human Rights (ECHR). On June 21, the court confirmed a 2013 decision, saying Switzerland violated the European Convention on Human Rights in the way it confiscated his assets under a UN Security Council Resolution. According to the ECHR, States have an obligation to ensure that individual human rights are respected when applying UN sanctions.
Al-Dulimi took his case to the ECHR in 2008 in his own name and that of his Panamanian-registered company Montana Management Inc, of which he is director. He accused Switzerland of having wrongfully confiscated his assets.
The case dates back to 1990 after the Iraqi invasion of Kuwait. UN Security Council Resolutions 661 and 670 called on member States to impose a general embargo on Iraq and on Kuwaiti resources likely to be seized by the occupier, and an air embargo. That is what Switzerland did, adopting a “ruling on Iraq” on August 7, 1990, even though it was not yet a UN member. Subsequently becoming a UN member, Switzerland modified the ruling after UN Security Council Resolution 1483 was passed in 2003. The modified Swiss ruling went further, providing for a freeze on the assets and financial resources of former top figures in the Iraqi government and companies owned or managed by them (Article 2).
In 2006, the Federal Department of Economic Affairs confiscated more than 269 million Swiss francs from a Swiss bank account of Montana Management (based in Geneva at the time) and 86,276 Swiss francs belonging to Al-Dulimi personally, despite various attempts to block the move. This money was transferred to the Development Fund for Iraq. 4
Why did the European Court sanction Switzerland?
Switzerland argued that it had no latitude, it was merely applying the UN Security Council Resolutions, and the sanctions list was established by the Council via the UN Sanctions Committee. There is a review procedure under Sanctions Committee rules, but the Security Council in 2009 rejected Al-Dulimi’s request to have his name removed from the list.
So if Switzerland applied the Security Council Resolutions, why was it found in breach of European human rights law? The ECHR found that the procedure laid down by the Security Council was not in line with the right to a fair trial, and that Switzerland had not conducted a review to ensure the listing of the person in question was not arbitrary. The Court added that a democratic society should have done this. It reminded Switzerland, France and the UK (which chose to participate in the hearings and give their observations) that they cannot apply Security Council Resolutions blindly.
This decision is also a criticism of the UN Security Council. The ECHR found that the Sanctions Committee should have provided States with at least a minimum of information on why people were put on the sanctions list. In addition, the procedure for removing people from the list has been frequently criticized by the special rapporteurs of the UN Human Rights Council.
Similar UK case
This case is reminiscent of one brought by Hilal Abdul-Razzaq Ali Al-Jedda against the UK for a claim of wrongful detention. The ECHR found that the UK had violated European human rights law when it detained him for an indefinite period as a security threat to Iraq, in line with a Security Council demand that measures be taken to maintain security and stability in Iraq.
These cases clearly raises the question of how States belonging to the Council of Europe should apply UN Security Council Resolutions. According to the ECHR, they should always ensure that fundamental rights are being respected at the same time.