Blacklisting and the ban: Contesting targeted sanctions in Europe

Introduction: The symbolic politics of blacklisting

In the wake of 9/11, the pursuit of suspect monies has become a key element of the fight against terrorism. From new reporting requirements for banks and financial institutions to the regulation of informal remittance networks; from the renewed role of the Financial Action Task Force on the global stage to the secret data-mining of millions of transactions held by Belgian-based wire-transfer company SWIFT, the ‘war on terrorist financing’ has manifold points of application and has caused a substantial amount of (critical) debate. ¹ Perhaps the most visible and controversial aspect of these developments has been the use of blacklists and targeted sanctions, which freeze the assets of and ban from travel specific named individuals or organizations on the basis of suspicion that they are involved in the financing or facilitation of terrorism. There are now an estimated 214 blacklists in operation worldwide, of which the UN Security Council 1267 Sanctions List, the US Office of Foreign Asset Control (OFAC) list and the EU financial sanctions list are undeniably the most important. Ostensibly ‘aimed at denying targets access to the international financial system’ (Eckert, 2008: 103), targeted sanctions deploy a logic of ‘pre-crime’, in the sense that they are not usually followed by criminal trials but operate in advance of potential wrongdoing and on the basis of secret evidence and political decision. They act on a ‘present or future threat’, rather than by reference to ‘past conduct’ (General Court, 2010: §83). In short, targeted sanctions shift ‘the temporal perspective to anticipate and forestall that which has not yet occurred and may never do so’ (Zedner, 2007: 262).

Substantial academic attention and critique has surrounded targeted sanctions and blacklists, as they challenge existing logics of evidence, criminal culpability and proportionality. Legal specialists have pointed to the shortcomings of these measures in terms of their procedural safeguards and human rights (see, for example, Cameron, 2003; Eckes, 2008, 2009; Watson Institute, 2006). Following a detailed investigation by Swiss parliamentarian Dick Marty, the Council of Europe issued a damning report of the UN and EU sanctions regime in 2007, noting that their human rights protections ‘fall far short’ of minimum international standards. ² Sullivan and Hayes (2010), in their report for the European Center for Constitutional and Human Rights in Berlin, establish that the deployment of blacklisting entails a number of serious human rights breaches, even after recent modifications. In particular, use of sanctions has at different occasions been found to breach the right to a fair trial, the right to be heard, the right to effective remedy and the right to property. The vibrant and important juridical debate surrounding the various sanctions lists has to a large extent been focused on furthering institutional improvements and the provision of better legal protection for sanctioned individuals and organizations. This means that debate has yet to address a number of wider political, social and symbolic issues at work in the post-9/11 practices of blacklisting and asset-freezing. As Sullivan and Hayes have put it,

the routine failure of state bodies to provide blacklisted individuals with access to all of the relevant material underpinning their designation as terrorist suspects ... cannot be understood in isolation from the broader shift by liberal states toward ‘risk profiling’ and ‘preemptive security’ and the increased participation of intelligence services in counter-terrorism policing (Sullivan and Hayes, 2010: 26; see also De Goede, 2008: 173–5; Bowring, 2010).

For Elspeth Guild (2010, 2008), what is at the heart of targeted sanctions and their current contestations is the ‘fault line’ between the political and the legal in the post-9/11 security landscape. The ‘high political value’ of anti-terrorism measures, according to Guild (2010: 3), ‘is generally used to justify providing them with additional protection against judicial examination’. In particular, with the use of targeted sanctions, the UN Security Council and the European Union have decided on actions with direct and severe consequences for individuals who at the same time do not (yet) appear as rights-holders in the international arena. For Guild (2010: 9–10), blacklisting cases revolve around ‘political imagination’, ‘supposition and conjecture’ that remain unchallengeable in court until the individual subject becomes regarded as a rights-holder under international law. Guild’s reading thus points to the way in which current contestations over the use of blacklists, particularly in the EU, have significance beyond the particular cases they concern because they raise questions about the use of political imagination within juridical action and reveal important aspects of the changing international legal order effected through the pursuit of terrorism.

This article develops and expands Guild’s arguments, in order to analyse critically the symbolic and political importance of individual sanctions in the post-9/11 security landscape. The issues to be addressed in this larger context are at least twofold. First, blacklisting must be understood and analysed in terms of its symbolic function of banishment and exclusion, which simultaneously redraws the boundaries around normal, valued, ways of life. Despite assertions to the contrary, blacklisting does not primarily seek to cut off the money flows to terrorists in order to prevent attacks. This is illustrated by the fact that some sanctioned individuals, for example members of the Dutch ‘Hofstadgroup’, have to their name hardly any means or income to speak of. A number of legal contestations have arisen around the legitimacy of extending social welfare or housing-benefit payments to (families of) blacklisted individuals – again, illustrating that targets are often not at all wealthy. The objective of such listing orders cannot be so much the prevention of the financing of acts of terrorism as it is the societal exclusion and symbolic banishment of the affected persons, whose daily lives are put on hold. If we analyse the practice of blacklisting though the lens of Agamben’s notion of the ban – which, as I will argue in this article, can be done productively – the symbolic politics of blacklisting and the renewed constitution of valued lives and juridical normalities come into central focus (see, for example Amoore, 2008b; Bigo, 2008; Werner, 2010).

Second, a further teasing out of the pre-emptive nature of targeted sanctions is required, in order that we might examine the extent to which this logic is being contested in current legal cases. Blacklisting is an exceptional and pre-emptive measure par excellence, because, habitually, persons are listed in advance of and in lieu of criminal trial (Cameron, 2006). As Senator Paul O’Neill, secretary of the US Treasury at the time of 9/11, recounts the logic of the turn to targeted sanctions in the context of fighting terrorism:

[We] moved on ... setting up a new legal structure to freeze assets on the basis of evidence that might not stand up in court.... Because the funds would be frozen, not seized, the threshold of evidence could be lower and the net wider (quoted in Suskind, 2004: 192; see also Godinho, 2010: 69).

As I will argue, the exceptional, temporary and pre-emptive nature of the sanctioning instrument is increasingly becoming a regular and accepted measure in the post-9/11 politico-juridical order, precisely through the juridical contestations that are taking place in this domain. This article examines in some detail the Kadi case before the European Court of Justice. This case did much to contest the logic and legitimacy of the UN sanctioning regime, but simultaneously contributed to a normalization of the principle of targeted sanctions and inscribed their pre-emptive nature. In order to develop a full political critique of blacklisting as a security practice, the logic of pre-emption at work inside it has to be rendered visible.

Blacklisting and the ban

The targeted sanctions that are deployed with increasing scope and effect in the post-9/11 security landscape represent a ‘qualitative shift’ from economic sanctions against states as we know them since the end of the Cold War (Cameron, 2003: 227). In fact, targeted sanctions arose out of a political critique of more traditional UN Security Council sanctioning regimes as directed at states. In particular, the economic sanctions against Iraq in the 1990s led to a profound critique of the ways in which sanctions affect a corrupt regime’s civilian population through restrictions on imports of food and consumer goods. Subsequent sanction-reform initiatives offered targeted sanctions as a viable alternative, to be directed at political elites rather than states as a whole (Tostensen and Bull, 2002; Cortright and Lopez, 2002). This move away from targeting states or persons as state representatives was intensified with UN Security Council Resolutions 1267 (1999) and 1333 (2000), which were specifically directed against the Taliban but also included the objective of prohibiting and preventing funds from being made available to ‘Usama bin Laden, his associates or any entities owned or controlled, directly or indirectly, by [him]’. ³ In this formulation, Bin Laden and associates are no longer thought of as representatives of a particular state or regime, but are considered entities in their own right who threaten international peace and security. Resolution 1373 (2001), adopted in the wake of 9/11, pursues this logic with an even broader formulation by ordering states to ‘freeze without delay funds and other financial assets ... of persons who commit, or attempt to commit, terrorist acts ... or facilitate the commission of terrorist acts’. ⁴

Unmoored from state regimes and specific geographical territories, the ambition of UN sanctioning is to transform itself into a flexible, smart, sophisticated and mobile targeting practice. ⁵ The Security Council 1267 Committee maintains and administers a list of persons and entities designated under these resolutions. Any UN member-state may propose entities for this list on the basis of their alleged participation in the financing, planning or preparation of ‘acts or activities by, in conjunction with, under the name of, on behalf of, or in support of Al-Qaida, Usama bin Laden, or the Taliban, or any cell, affiliate, splinter group or derivative thereof’. ⁶ Proposals need to include a detailed statement of reasons and ‘the nature of the supporting evidence’, but do not need to include that evidence itself if such inclusion would potentially threaten national security concerns. ⁷ Substantial criticism has been directed at the secret and political nature of the 1267 Committee’s decisionmaking process, which frequently depends on (US) intelligence materials (Biersteker, 2004: 68; Bowring, 2010). In practice, we know very little about the Committee’s deliberations, nor whether proposed listings are ever rejected. Until 2008, designated persons would not be formally notified of their listing, but would simply find out through their cheques bouncing or their ATM cards not working. The enforcement of the 1267 blacklist requires action not just by UN member-states but – perhaps more importantly – by the private financial sector, whose members risk substantial penalties if they do not enact the freezing orders. In addition to the designation list administered by the UN Sanctions Committee, we have seen the appearance in the global security landscape of a plethora of other (inter)national designation lists, including the EU blacklist adopted in October 2001 (Guild, 2008). In fact, despite their increased flexibility and enduring opacity, UN targeted sanctions are still relatively formal and procedural compared to other financial counter-terrorism measures, including the novel processes of ‘pre-designation’ currently used in the USA and the transnational operation of privately compiled lists such as those of World-Check, which are used by banks in order to check their databases for listed entities and ‘politically exposed persons’ (PEPs). ⁸

Blacklisting can be regarded as a modern practice of banishment. Even if they are not physically expelled from the community, life in modern society is rendered effectively impossible for individuals who become included on the UN or EU lists: they cannot work or have a job, as they cannot receive payment into their bank accounts; they cannot receive financial support from friends or sympathizers; it is forbidden to sell them insurance or other financial products; and as a consequence they cannot travel, drive or support their families. Even if exceptions are usually made to allow basic living expenses, the impact on lives is substantial. As the UK Supreme Court put it in a recent ruling: ‘The impact on normal family life is remorseless and it can be devastating.... It is no exaggeration to say ... that designated persons are effectively prisoners of the state’ (quoted in Sullivan and Hayes, 2010: 92). Blacklisted individuals are not formally accused and cannot usually look forward to a criminal trial, but are subject to an indefinite ban on the basis of largely secret evidence that paralyses their societal participation and reduces their being to mere existence. In brief, blacklisting banishes suspects beyond the threshold of normal societal participation – if not a literal death, this involves, at the least, what Dick Marty has called a ‘civilian death penalty’ (zivile Totesstrafe) (cited in Kruse, 2007).

It is productive to read the deployment of targeted sanctions through the lens of Giorgio Agamben’s analyses of the role of banishment and exception in contemporary politics and security. The analytical importance of deploying such a lens is that it refocuses debate away from the question of the breach of individual rights, toward an interrogation of the changes in the wider political order and concomitant valuations of particular ‘ways of life’. In other words, reading blacklisting practices through Agamben’s analysis of the ban as the fundamental structure of society is important not only because it draws out the targeted individuals’ relegation to ‘a state of “bare life” without rights and no avenue to recover their presence in society’, as William Vlcek (2006: 506) has rightly argued (see also Bowring, 2010); it is perhaps even more important for Agamben’s emphasis on the constitutive nature of the ban: the exclusion of homo sacer simultaneously founds and affirms the community from which he is banished.

For Agamben, the ban is a fundamental structure of modern society: in contrast to the explanation and examination of ‘the good life’ or the worthy, active, political life with which many philosophers are preoccupied, Agamben (1998: 7) enquires instead into the question ‘why Western politics first constitutes itself through an exclusion (which is simultaneously an inclusion) of bare life’. Bare life in Agamben’s formulation is the inversion of the good life; it is the life deemed ‘unworthy of being lived’ or life ‘that does not deserve to be lived’, embodied, for example, in lives deemed suitable for euthanasia, or killing without committing homicide (Agamben, 1998: 137). Agamben offers the figure of homo sacer as the original embodiment of such bare life: this limit figure and sacred man is an ambivalent figure, one who is included in the juridical order by virtue of his exclusion, and who dwells in a domain between ‘holiness and uncleanliness’, between the sacred and the taboo (Agamben, 1998: 76). Consequently, homo sacer ‘designates the person or the thing that one cannot touch without dirtying oneself or without dirtying; hence the double meaning of “sacred” and “accursed”’ (Agamben, 1998: 79). This latter formulation is particularly apt in relation to understanding contemporary blacklisting, as evidence is mounting that relations with blacklisted persons in turn become cause for suspicion and scrutiny in the post-9/11 security landscape. Not only is it officially forbidden to aid blacklisted persons financially, but any association with blacklisted entities can become cause for suspicion in data-led security programmes at, for example, borders or banks (Amoore and De Goede, 2008).

Agamben’s recognition of the figure of homo sacer in concentration-camp inmates and the inhabitants of contemporary detention centres may seem far removed from today’s blacklisted. Indeed, most readers of Agamben have recognized homo sacer’s contemporary incarnations in society’s invisible and abject, embodied in displaced masses of refugees and faceless victims of arbitrary state power (see, for example Gregory, 2004; Edkins and Pin-Fat, 2004). However, Agamben (1998: 139) encourages his readers to recognize the ban in modern guises and new examples, for, as he puts it, ‘every society sets this limit; every society – even the most modern – decides who its “sacred men” will be’. Thus encouraged, we may observe the parallels between Agamben’s banned and the modern blacklisted to revolve around their common casting out from the realm of politics, which helps constitute the community from which those who suffer such a fate are exiled. The fact that such exile operates through an administrative-financial measure instead of a pure juridical ban does not refute the argument. Perhaps the most important aspect of bare life for Agamben is the ‘alienation of language’, to be understood, more precisely, as the loss of political voice. ⁹ The distinction between mere existence and politically qualified life, writes Agamben (1998: 7), is the distinction between voice and language – whereby voice is understood as being in the domain of ‘pain and pleasure’, belonging to all creatures, and language is understood as rendering possible the domain of communal and political life. Political voice and the capacity to speak publicly, then, is what marks the distinction between pure life and political being.

Consider the case of Egyptian-born Swiss resident Youssef Nada, a businessman and former banker who was blacklisted in the USA and by the UN Security Council in November 2001 on the grounds of his directorship of Bank al Taqwa and his affiliation with the Egyptian Muslim Brotherhood. Swiss authorities and banks complied with UN regulations by freezing Nada’s assets and prohibiting his travel. Consequently, Nada found himself in a juridical zone of indistinction, in which he was neither indicted, and thus given a chance to defend himself, nor cleared and given a chance to resume his life – a situation that would endure for more than eight years. In his report to the Council of Europe, special rapporteur Marty selected Nada’s case as an exemplary one, as, in Marty’s words, Nada’s situation ‘seems to come out of a book by Kafka’. ¹⁰ As Marty put it in an interview: Nada’s ‘work, his life, it has been completely destroyed. He is 77 years old and does not have a criminal record.... He is being subjected to a civilian death.’ ¹¹ Swiss authorities conducted a lengthy investigation into Nada’s affairs to examine whether he could be indicted and tried for crimes committed, including the financing of terrorism. However, insufficient evidence was found to start a criminal trial and the investigation was closed in 2005, which however at that time did not lead to Nada’s delisting. ¹²

Accompanying Marty’s 2007 report to the Council of Europe was an online video in which Nada is interviewed and is given a voice and a chance to recount his situation. The film’s opening shots are not images that call to mind Agamben’s homo sacer: Nada, a wealthy businessman, lives in a Swiss enclave in Italy, in a luxurious villa high above Lake Lugano – a location known for its beauty as well as for its tax-exempt status under Italian law. Nada is well-dressed and well-spoken as he is interviewed in his richly decorated living room. But, as he speaks out, it becomes clear that the situation in which Nada finds himself is one of a politically unqualified life, cast out of the political community and reduced to mere existence, ‘a new living dead man’ (Agamben, 1998: 131) – or, in Nada’s own words, a ‘creature’. Says Nada in the video:

I am not existing. Only a person, as in a ... as a creature, to eat and to sleep and to read. That is all I am doing. And to clean the garden and throw the garbage outside.... My children, my wife, they give me food. Money I don’t have, food I have, they give me food. That is all. But money, I don’t have any money. ¹³

Nada further recounts how his travel ban means that he is denied medical care, as he lives in the tiny enclave: ‘I was prohibited to go even to the hospital. And when I asked Susan Lamb [of the UN Sanctions Committee] to allow me to go to Europe for my broken hand – they refused’. Of his political commitments, which are presumably at the heart of his blacklisting, Nada says:

I am a member of the Muslim Brotherhood for more than 60 years. That is true. But Muslim Brotherhood is not blacklisted; it is not known as a terrorist organisation. We are completely against violence. And, Bin Laden and his group, for example Al Zawahiri, made a book against us and consider us infidels.

In conclusion, Nada shows his desperation, which arises not so much from the accusations against him but from the absence of accusations against him, against which he could defend himself: ‘As European, there must be some entity or government or way to defend myself. Justice. Where is the justice, I don’t know. To whom I have to talk, I don’t know.’

The situation in which Nada finds himself can be described in Agamben’s (2000: 40) terms as a space in which ‘everything is truly possible’. The way in which Nada’s case is handled is not bound by law but dependent upon the whim and fancy of the UN Sanctions Committee, to which Nada has to appeal in person to be allowed, for example, to travel for hospital treatment. Within the Security Council, as one legal scholar has put it, ‘it seems that law is a matter, continuously and constantly, of living on a knife’s edge: there is no law, there are only decrees, to be applied by the powers that be’ (Klabbers, 2007: 11). It is in this respect that Marty concludes that, ‘these days, a serial killer has more rights than a person on the blacklist’ (quoted in Kruse, 2007; my translation). For, a serial killer would face a trial in which he has a right to defence and a right to hear the evidence against him. What makes blacklisting cases different from Agamben’s formulation is that they are not physically cast out of the community but remain domiciled while being visibly excluded and rendered mute. In this case, then, the operation of exception works less through the institution of a demarcated space, like the camp, and more through ‘differentiating and dividing practices’ that operate in the midst of societies (Dillon, 2004: 55; also Amoore, 2008a; Connolly, 2004).

In Nada’s case, it is his loss of political life and the denial of his political being that is at the heart of what affects him and reduces his life to what he himself calls non-existence. In this sense, blacklisting has the effect of drawing boundaries around what is considered to be legitimate transnational political activism. The fact that this is effected through a monetary targeting is particularly interesting. The similitude between language and money has been frequently explored – key here is how money and language perform parallel functions in modern society: both entail a system of signs and symbols that render possible social exchange that is ultimately founded on faith (Taylor, 2004). In the case of blacklisting, the currency interrupted is not the hard financial flows to terrorists, but the currency of social interaction and political participation from which the sanctioned persons are to be excluded. This accords closely with the way in which post-9/11 definitions of the ‘good life’ have revolved around particular notions of circulation and economy (Amoore, 2008a; Johnson, 2002; Dillon and Lobo-Guerrero, 2008; Le Billon, 2006). In the wake of terrorist disasters, authorities have appealed to citizens to demonstrate resilience, not through – for example – encouraging them to stay home with their families, but through encouraging them to continue to shop, spend, invest and commute. If contemporary definitions of our way of life, the liveable life and the good life revolve around economic markers of continued shopping and circulation, it comes as no surprise that bare life is to be excluded through arrested mobility and frozen money flows. Here, the circularity of the globalizing economy is rescued and reaffirmed through the arrested or alternate mobilities of the banned (Sparke, 2008; Best, 2007).

The constitutive nature of the ban and the logic of pre-emption

What makes Agamben’s formulations particularly important for the investigations in this article is his underscoring of the constitutive nature of the ban. The ban is foundational in Agamben’s analysis because its enactment founds the community of politics: ‘In Western politics, bare life has the peculiar privilege of being that whose exclusion founds the city of men,’ writes Agamben (1998: 7). The argument concerning the constitutive nature of the ban is crucial for moving the political discussion concerning blacklisting away from the individual rights of persons targeted, toward the transformed sovereign environment in which we all find ourselves. Thus, at the press release of Marty’s report to the Council of Europe, discussion ensued concerning the number of persons listed worldwide. ¹⁴ In contrast, if we understand the ban as a constitutive force, the central question becomes not the breach of rights of this limited number of blacklisted individuals, but the much larger question of the new juridical order in which we all find ourselves. To what ‘city of men’ are the effects of the contemporary ban addressed?

The analysis of legal scholars suggests that blacklisting and related UN counter-terrorism measures constitute a new order because they effect an unprecedented influence of the UN within national law and sovereignty, including severe effects for individuals (Guild, 2010; Biersteker, 2004; Heupel, 2007). Bill Bowring (2010), for example, argues that with its post-9/11 counter-terrorism measures, the UN engaged in a form of law-making with effects at the subnational level that may exceed or at least significantly stretch its original mandate. According to Tanja Aalberts and Wouter Werner, not only are the legislative and executive machineries of member-states ‘disciplined’ to enact particular counter-terrorism measures, but the paradigm that informs these measures, and that defines the responsible state-subject, is ‘increasingly informed by taking precautions in order to protect the common good of international society’ (Aalberts and Werner, forthcoming; emphasis added). This is not a purely post-9/11 development, but expands developments set in motion with the 1999 UN Convention for the Suppression of the Financing of Terrorism, which obliges member-states to criminalize the act of ‘terrorist financing’ defined in a very broad sense. ¹⁵ According to legal expert Marja Lehto (2010), this Convention entailed a veritable ‘paradigm shift’ that redefines the concept of terrorism beyond violent acts and that enables, through the criminalization of terrorist financing, a novel proactive attitude to the threat of terrorism. The ‘city of men’ here constituted entails the enactment of a community of states authorized to act pre-emptively and comprehensively against supposed threats of terrorism.

Thus understood, the constitutive nature of the ban/blacklisting lies in its introduction and slow fortification of the principles of pre-emption into the international legal order. Despite its new relation to evidence and procedure, it is not necessarily the case that pre-emption operates through an extra-legal domain. We can draw out four elements that are generally thought to characterize the politics of pre-emption, so that we can analyse, in the next section, how these four elements play out in particular cases contesting the use of targeted sanctions in Europe. The growing literature on the importance of the principles of pre-emption and precaution in post-9/11 security practice explains that pre-emption addresses itself to phenomena that are considered to be potentially catastrophic and fundamentally unknowable. ¹⁶ A first element of the politics of pre-emption, then, is a particular threat perception that appeals to the potentially catastrophic and worst-case scenario. In pre-emptive measures like targeted killing, according to Oliver Kessler and Wouter Werner, a notion of ‘radical uncertainty’ is introduced into legal reasoning, through the invocation of ‘an enemy that is perceived of as an unpredictable, mortal threat, rather than as a formally equal combatant or criminal’ (Kessler and Werner, 2008: 290; see also Krasmann, 2010: 121). Second, pre-emption works through a certain understanding of temporality and orientation to the future. In particular, pre-emption appeals to a potentially catastrophic future in order to enable action in the present. Third, pre-emption fosters a new logic of sovereign decision. Here, sovereign decision masks itself as administrative procedure. For example, Judith Butler (2004) has written about the emergence of ‘petty sovereigns’, as mid-level bureaucrats and government officials have acquired the power to decide over life and death, rendition and apprehension, in the name of fighting terrorism. Fourth, pre-emption requires a different relationship to evidence and acts on suspicion. The unpredictable nature of the threat is not regarded as a reason for inaction. Pre-emption, in short, severs the relationship between the act of violence and the moment of security intervention, renders action possible on the basis of suspicion, and replaces causality with notions of nebulous association.

The European Court of Justice, the Kadi case and four elements of pre-emption

In order to examine in more detail the process by which pre-emption becomes incorporated into the European legal order through blacklisting cases, we turn to a reading of the political and juridical trajectory of the (in)famous Kadi case. This case, before the European Court of Justice since 2001, became one of the most prominent cases to contest the legality of a targeted sanctions measure, with substantial juridical implications across the landscape of international law. ¹⁷ At risk of ‘instrumentalizing’ the legal text in order to develop a political point (Klabbers, 2010), I maintain that it is important to weigh and evaluate the political effects of the Kadi decision and its potential to normalize the exceptional measure of blacklisting. It is precisely because this case is frequently welcomed as a major step forward in the improvement of the accountability and justice of the sanction regime (Eckes, 2008; Guild, 2008) that it is important to assess to what extent the logic of pre-emption is really being challenged here.

Yassin Abdullah Kadi, a Saudi businessman and philanthropist with substantial business interests in Europe, was blacklisted in the USA in September 2001, after which his name was transposed to the UN sanctions list in October 2001, and subsequently to the EU list by successive European Council Regulations (467/2001 and 881/2002). As in the Nada case, the reasons for the listing were classified, and Kadi did not know what he was accused of, let alone what evidence there was against him. Turned away by the UN Sanctions Committee, Kadi eventually lodged his complaint with the European Court of First Instance (CFI) in 2001, as well as with various national authorities that execute sanctions, including the US Office of Foreign Assets Control (OFAC). In his complaint, Kadi stated that he ‘has never been involved in terrorism or in any form of financial support for such activity, whether connected with Usama bin Laden or Al-Qaeda or otherwise’ (CFI, 2005a: §136). ¹⁸ Kadi put forward the argument that one of the principles of the European Union is to uphold the rule of law, and argued that the sanctions breached his human rights, including the right to a fair hearing, the right to respect for property, and the right to effective judicial review (CFI, 2005a: §59).

In 2005, the Court of First Instance resoundingly upheld the sanctions against Kadi, in large part because it denied the capacity of the European Union to evaluate by its own standards the orders of the Security Council. However, the situation of exception is not static (Neal, forthcoming), and the Kadi case was appealed to the European Court of Justice (ECJ), where it was combined with the Yusuf/al Barakaat case before the same court. The 2008 ECJ ruling in these cases has since come to be seen a landmark decision – both for its attention to human rights and for its implications for the relation between EU law and UN law. ¹⁹ The ECJ rejected the argument that the Community’s obligations under international law imply that blacklisting measures cannot be tested in relation to the Community’s own principles and human rights provisions. And, when Kadi’s case was subjected to a proper human rights review, the ECJ had to conclude that in Kadi’s case ‘the rights of the defence, in particular the right to be heard, and the right to effective judicial review ... were patently not respected’ (ECJ, 2008: §334; emphasis added). The Court concluded that European implementation of the UN sanctions list breached human rights and should be remedied or annulled within three months of its decision. In response, the EU provided Mr Kadi with a summary narrative of the reasons for his listing – and swiftly relisted him. ²⁰ A further challenge to these developments was mounted by Mr Kadi, and in 2010 the General Court ordered an immediate delisting. ²¹

In order to assess the wider political potential of the European court rulings of 2008 and 2010, along with their capacity to criticize and amend the post-9/11 blacklisting practices, we need to examine to what extent these rulings do more than annul the sanctions against Kadi and mount an effective challenge to the logic of pre-emption. Can we celebrate the recent rulings as a protection of the rights of individuals contra the UN Security Council and a reparation of the state of exception? Or, do these judgments in fact have the potential to strengthen and fortify the blacklisting regime as an accepted pre-emptive measure in the post-9/11 security landscape, even if Mr Kadi is delisted? As Andrew Neal (forthcoming) has phrased it:

Today, with the passing of time, we are faced with a different set of questions, not concerned so much with ‘exceptionalism’ but with ‘normalisation’. Is the ‘emergency’ still with us? Will the exceptions created in the name of security be brought to an end? Or will they become a permanent feature of political life? Have they already?

An examination of the four elements of pre-emption and how they play out in the Kadi case can help address these questions and is able to further our understanding of the constitution of political community.

The first element of a politics of pre-emption, discussed above, is the notion of an unpredictable, diffuse and potentially catastrophic threat, which functions as a spur to action. This notion of threat is generally at work within the sanctions regime; as legal scholar Jorge Godinho (2010: 69) has put it, ‘sanctions are predicated on a threat to international peace and security, which is not necessarily the same as a breach of international law’. A striking aspect of the 2008 Kadi decision, which, as we have seen, can be considered a landmark ruling, is that it accepts and upholds the appeal to radical uncertainty and acute danger that underpins the blacklisting regime. According to the Court, blacklisting is a precautionary instrument that ‘cannot per se be regarded as inappropriate or disproportionate’ in relation to the fundamental objective of the international community in the ‘fight ... against the threats to international peace and security posed by acts of terrorism’ (ECJ, 2008: §363). Even if the Court held that grounds for blacklisting need to be communicated to the subjects concerned, it simultaneously argued that, ‘in order to attain the objective pursued by that regulation’, a blacklisting order ‘must ... take advantage of a surprise effect and ... apply with immediate effect’ (ECJ, 2008: §339; emphasis added). The Court, in brief, accepts both the novel nature of the threat facing the international community and the consequent need to act pre-emptively and with a surprise effect. Here, a foundation for a new legal order around blacklisting measures is laid.

The second element of pre-emption, understood as a particular deployment of temporality and orientation toward the future, has been subject to a more fundamental questioning over the course of the Kadi case. The 2005 CFI decision that upheld the legitimacy of blacklisting did so on the basis of the temporary and precautionary nature of the measure, which, in its view, justified the deployment of lower standards of evidence than required in a forfeiture case or criminal trial. When ‘what is at issue is a temporary precautionary measure restricting the availability of the applicant’s property’, the Court ruled, ‘observance of fundamental rights of the person concerned does not require the facts and evidence adduced against him to be communicated to him’ (CFI, 2005a: §274; emphases added). The CFI ruling upholds the listing order by deploying the language of precaution and exception, and by denying the applicability of law in this supposedly temporary zone that is nevertheless of indefinite duration.

However, the 2008 appeal challenges the lower court on this logic. While asserting that blacklisting as a precautionary measure is justified in principle, the appeal court also finds that the restrictions of Kadi’s property rights had been ‘significant’ and ‘unjustified’ (ECJ, 2008: §370). The 2010 decision goes even further in this respect in considering the ‘intrusive and serious nature’ of blacklisting measures that are to be regarded as ‘not only preventative but also punitive’ (General Court, 2010: §163). The General Court (2010: §150) concludes,

It might even be asked whether ... it is now time to call into question the finding ... according to which the freezing of funds is a temporary precautionary measure, which, unlike confiscation, does not affect the very substance of the right of the persons concerned to property ... but only the use thereof.

Here, the General Court opens a juridico-political window for a more fundamental contestation of blacklisting, especially by raising the question of the severity and punitive nature of this supposedly temporary measure.

A third element of the politics of pre-emption has been described as the work of sovereignty, and in particular the operation of petty-sovereign decisionmaking in administrative or bureaucratic spaces where accountability and redress are difficult to effect. As Jenny Edkins and Véronique Pin-Fat (2004: 9) have argued, a space of exception is ‘where power, at its zenith, disappears and becomes pure administration’ (see also Johns, 2005). From this point of view, it is particularly interesting to note that throughout the Kadi appeal procedures, the European Council and Commission, called to defend the sanctions, sought to deny their capacity for sovereignty and decision in relation to the UN Security Council list. The Council of the European Union argued that Kadi had been subjected to ‘mere administrative measures’ (CFI, 2005a: §149), and that its obligations under international law meant that it had to implement the Security Council regulations without having the authority to assess the evidence or lawfulness of those measures. In 2005, the CFI accepted this reasoning and confirmed that ‘the Community institutions had no power of investigation, no opportunity to check the matters taken to be facts by the Security Council and the Sanctions Committee, no discretion with regards to those matters’ (CFI, 2005a: §258; emphases added).

The Council and Commission continued this line of reasoning long after the Court found that Kadi’s human rights had been breached. Thus, in the 2010 case it becomes clear that the European Commission regards itself as a passive conduit for the summary of reasons for the listing of Mr Kadi that has been provided by the Security Council. The Commission’s communication of reasons for Mr Kadi’s listing was ‘identical’ to the summary produced by the UN, which was not further revised or expanded by the EU institutions themselves (General Court, 2010: §§54–62). Commission and Council, it must be stressed here, have never seen or scrutinized the evidentiary basis of the listing beyond the materials made available to the Security Council. Here, the decision that is the ban tries to mask itself as a pure and passive execution of Community obligations under international law.

The fourth and final point of the politics of pre-emption, and perhaps the main element of contention in asset-freezing cases, is the question of evidence. As we have seen, pre-emption fosters security action on the basis of lower standards of evidence, doubt and suspicion because the risks of inaction are considered to be great. This is repeatedly put forward by Council and Commission, who stress that asset-freezing is ‘preventative in nature’ and therefore entails ‘different standards of evidence’ from those that would be applicable in a trial (General Court, 2010: §60). This reasoning was upheld in the 2005 CFI decision, which regarded the precautionary nature of the measure as sufficient reason to withhold examination and even communication of evidence. The review standard that was applied by the CFI to the sanction measures was based on jus cogens, which, according to legal scholars Tridimas and Gutierrez-Fons (2009: 934), was intended to ‘lower substantially the degree of judicial scrutiny by pushing well back the threshold of review’ (see also Eckes, 2008). However, the lower court’s judgment is now being contested, and the question of evidence is at the heart of the 2008 and 2010 appeals. The 2008 decision rules that the rights of defence were ‘patently not respected’ because of a breach of the rights of defence and effective juridical review in the absence of the inculpatory evidence. This judgment led to the communication by the Commission to Mr Kadi of the summary of reasons for listing as it had been released by the Security Council. The General Court (2010: §157), however, rejected this action as a satisfactory solution to ‘the requirements of a fair hearing and effective juridical protection’. Instead, the Court called for a ‘full and rigorous judicial review’ of the measure, accepting that it is for the Court itself to ‘determine for the first time the appropriate standard of review’ (General Court, 2010: §§151, 91). At the time of writing, it remains to be seen what that standard of review will be, and whether it will meaningfully approach the standard of evidence deployed in criminal trial that critics of blacklisting have repeatedly called for.

In conclusion, then, it is not just the case that one can question whether justice was really done in the Kadi case – Kadi remained listed for another two years after the ruling establishing that his human rights had been breached; his reputation has been destroyed and his business ruined on the basis of evidence that remains classified and unexamined in a court of law. The larger questions pertaining to the rulings in the Kadi case concern their potential to repair the breaches in human rights that blacklisting measures entail, and to overcome the logic of pre-emption at work within this security practice. Here, many juridical experts have been cautiously optimistic on the basis of the 2008 and 2010 decisions. But, read through the lens of Agamben’s notion of exception, we may argue instead that the Kadi decisions have the ability to solidify and normalize the deployment of targeted sanctions as a legitimate and permanent emergency measure in Europe and beyond. The questioning of the precautionary nature of the measure is now leading to a discussion concerning the regularity of review of blacklists and the time-limit of precaution. A number of states have urged the Security Council to improve its procedures by introducing a ‘sunset clause’ of 36 months for all listings. However, it is important to note that the introduction of such a clause is intended to rescue and affirm the ‘preventative and temporary’ nature of the sanction, and to render it more legitimate. ²² A debate on the duration of precaution reduces it to a technical negotiation that accepts its legitimacy in principle. Furthermore, the European courts, through their successive rulings, are in the process of establishing a special standard of evidence for blacklisting measures that may very well entail a standard below the criminal justice threshold. Through these developments, we can observe a normalization and inscription in law of reconstituted notions of the right to be heard and standards of review. Here, the exception has really become the rule – a situation whereby a ‘provisional and exceptional measure’ has been transformed into a durable ‘technique of government’ (Agamben, 2005: 2; see also Neal, forthcoming; Van Munster, 2004; Salter, 2008). The point of this argument is not so much to take issue with existing political and juridical analyses of blacklisting cases, but more to render visible the logic of pre-emption that is at work inside the ways in which standards of evidence and juridical procedures are being reconstituted. A full and effective critique of blacklisting has to challenge the logic of pre-emption at work inside this measure.

Conclusion

This article has argued that targeting monies enables an exemplary mode of modern exile: if the ‘way of life’ to be defended in contemporary society is defined through the propensity to shop, spend, invest and be mobile, it follows logically that freezing and interrupting circulation should function as key mechanisms of the contemporary ban. The banned and blacklisted can be likened to Agamben’s homo sacer, in the sense that they have become politically disqualified lives, who function in society in a manner that constitutes a new juridical order. Deploying this analytical lens helps refocus the debate from the breach of individual rights toward a critical examination of the new juridical orders enabled by this type of sovereign ban. One key aspect of this novel ‘city of men’ is that it structures the legitimate domain of transnational political engagement. The Security Council pre-emptively polices the boundaries of political activism on behalf of its member-states.

Another key question concerning the inscription of the principles of pre-emption into the contemporary juridico-political order pertains to the question of evidence and, more precisely, the transformation of evidentiary bases for security action, targetings and the incapacitation of particular lives. As Cameron has pointed out, it is revealing to realize which questions are never asked in relation to blacklisting and targeted sanctions – either before the European Courts or elsewhere in political debates. These questions include whether

the terrorist acts for which the organization in question is accused are really attributable to the organization, [whether] these are ... isolated incidents, [or] go to the policy of the organization itself, [whether] the ‘benefits’ of making fund-collecting for this organization [interdicted] outweigh the ‘costs’ in terms of the inevitable ‘overspill’ restrictions in freedom of association and expression of people resident in EU states pursuing the same political goal as the organization, but not advocating terrorist means (Iain Cameron, cited in House of Lords, 2009: 232).

Cameron’s questions would necessitate the examination of the evidence of the relation between the suspect individual or organization and actual acts of violence, including a judgment on the centrality of their commitment to violence. The normalization and limited reparation of the perceived excessive aspects of blacklisting and targeted sanctions has yet to raise these questions, and may have even rendered it more difficult to introduce them into debates. It hitherto fails to question the legitimacy of a strategy that pre-emptively targets the nodes in suspect networks, and that severs, quite consciously, the relationship between culpability and the violent act.