To be or not to be (a terrorist). Understanding the interplay between EU anti-terrorism legislation and international humanitarian law in light of recent EU case law

Luca Pantaleo

2018-01-01

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Abstract

The relationship between International Humanitarian Law (IHL) and European Union legislation on anti-terrorism remains to be fully settled by the Court of Justice of the European Union. In particular, the application of EU anti-terrorism measures to non-State actors that are involved in an armed conflict has given rise to controversy. According to a strict interpretation of the principle of lex specialis, IHL should be regarded as the only set of rules governing the conduct of hostilities. The imposition of economic sanctions against a party to an armed conflict would therefore be incompatible with the said principle. In its LTTE judgment issued in 2014, the General Court rejected this interpretation and decided to uphold the sanctions despite finding that the entity subject to them was involved in an armed conflict. In its recent ruling, A. and Others, the CJEU confirmed the findings of the General Court. This article welcomes the CJEU’s decision insofar as it reaffirmed the distinct purpose of Framework Decisions and Common Positions as separate legal instruments, and the lex specialis relationship of the latter with IHL. Although the CJEU affirms - albeit only indirectly - that IHL is indeed lex specialis in the context of armed conflict, it qualifies that position. The author analyses such qualification, concluding that IHL can only be applied as lex specialis to situations of armed conflict if there is a conflict of norms between anti-terrorism sanctions prescribed by European Union law and IHL itself.