Strasbourg's Nada v Switzerland judgment shows we do not need to dismantle rights to make sanctions work in the fight against terrorism
On the shores of Lake Lugano in Switzerland, is the small town of Campione d'Italia. As the name suggests, Campione is not actually Swiss but part of a small strip of land no bigger than Hyde Park that is technically Italian soil. One its residents is Youssef Nada, an Egyptian-Italian businessman with links to Egypt's Muslim Brotherhood but who has lived in Campione since 1970.
As a result of sanctions adopted by the UN security council (UNSC) after 9/11, however, he was banned from entering Switzerland. Until the ban was finally lifted in 2009, Campione was not only his home but also his prison. While there are probably worse places to be stuck than living next to a Italian lake, a gilded cage is still a cage.
On Wednesday, the grand chamber of the European court of human rights unanimously ruled that the Swiss government had violated Nada's rights by refusing to vary its travel ban and by denying him any effective opportunity to challenge it. In doing so, it rejected not only the arguments of the Swiss but also the British government who intervened in Mr Nada's case to argue that UN security council resolutions took priority over fundamental human rights.
In fact, this judgment is but another chapter in a story that has played out mostly in courtrooms and security council meetings over the last decade but has very real consequences for the protection of basic rights.
Since 9/11, the British government has been keen to press the argument that the UN charter enables security council resolutions to trump human rights safeguards. The resolutions that caught the hapless Nada were directed against Al Qaeda and the Taliban. Less than a month after 9/11, the US government asked the UNSC to add Nada's name to a list of individuals alleged to be involved in financing Al Qaeda.
Despite years of investigation, neither the Swiss nor the Italian authorities ever found any evidence to suggest that Nada was involved in terrorism. Nada made repeated requests to challenge his listing but was rebuffed: it was a UN decision and, besides, all the supporting material was classified.
But the real catch came when Nada argued that the travel ban violated his human rights. The argument put forward not only by the Swiss but also by the UK government was that any rights he had under the European Convention on Human Rights had been superseded by the UNSC resolutions. Sadly the UK has form in this area: in 2007 it relied on exactly the same argument as justification for its indefinite detention of a British/Iraqi man in Basra following the Iraq War. In 2008, it made the same argument to the European court of justice in Luxembourg in the case of Kadi, which also involved the post-9/11 sanctions.
Although the Luxembourg court dismissed outright the UK's argument that UNSC resolutions trumped basic rights, the Strasbourg court has taken a different strategy. In July last year, it avoided deciding the issue of principle and instead held that the security council resolution in question did not go as far as the UK had claimed. This time, it again ducked the bigger question but its ruling that Nada was entitled to an effective means to challenge UN measures in Swiss courts is likely to prove significant in its own right, not least to the various sanctions regimes operated by the Treasury Asset-Freezing Unit in the UK.
More generally, Wednesday's judgment shows that — as important as sanctions are to the fight against terrorism — we do not need to dismantle rights in order to make them work. More than 11 years have now passed since the 9/11 attacks. It is surely well past time that the British government abandoned its repugnant argument that security council resolutions trump our basic freedoms.
Eric Metcalfe acted for the human rights NGO Justice which was a third party intervener in Nada v Switzerland