Terror designationAdviser to EU top court recommends removing Hamas, Tamil Tigers from EU terror watch list

Published 23 September 2016

The advocate-general of the European Court of Justice on Thursday advised the court that Hamas and the Tamil Tigers should be removed from the EU’s terror list. He emphasized that the recommendation is the result of his conclusion that the EU governments followed an improper procedures when they decided to add the two groups to the organization’s terror watch list.

The advocate-general of the European Court of Justice on Thursday advised the court that Hamas and the Tamil Tigers should be removed from the EU’s terror list. He emphasized that the recommendation is the result of his conclusion that the EU governments followed an improper procedures when they decided to add the two groups to the organization’s terror watch list.

The recommendations of the advocate-general are not binding on the court’s judges.

The BBC reports that if the judges accept the recommendation, it would be a turning point in a lengthy legal battle between the two groups and EU governments.

Even if the court accepts the recommendation, however – and depending on the reasons the court offers in support of its acceptance of the recommendation — EU governments could still place Hamas and the Liberation Tigers of Tamil Eelam on the list, although this may lead to another legal battle.

This is not the first time an EU body recommends that Hamas and the Tamil Tigers be removed from the organization’s terror watch list. In 2014, in two separate decisions, the EU’s second-highest court ordered both groups removed from the watch list.

Two years ago the court said that the evidence used as justification for placing Hamas on the list had not been properly examined and confirmed by EU governments. Instead, the court said, the decision was made based “factual imputations derived from the press and the Internet.”

The European Council (EC) appealed the 2014 judgment, claiming that the decision to place the two groups on the EU watch list was based on the 2001 decision by the U.K. government to designate both groups as terrorist organizations, and the fact that the United States had also designated both groups as terrorist.

The European Court’s advocate-general, however, rejects that European Council’s argument. “The [European] council cannot rely on facts and evidence found in press articles and information from the Internet,” Advocate General Eleanor Sharpston asserts.

Sharpston pointedly said that the EC could not rely on terror listings-related determinations by countries which are not EU members – that is, the United States — without first making sure that the groups designated as terrorist by non-EU countries had sufficient protection of the fundamental rights of their members.

The Wall Street Journal notes that the ECJ usually follows the opinions of the advocate-general, but that on a few occasions it has chosen not to do so, especially in highly politicized cases.

The ECJ will not make its decision for a few months yet, and until it does, both Hamas and the Tamil Tigers will remain on the watch list, and the groups’ assets frozen.

Observers note that the ECJ has inserted itself before into the EU policy making, and that EU governments, in order to smooth relations with the court, have taken to sharing more intelligence information behind close doors with ECJ judges.