28 March 2012
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No charges
against Swedish Young Left donation to PLFP
Swedish prosecutor Hans Ihrman has decided that charges will not be bought against Ali Esbati, the chairman of Swedish Young Left, for a donation made via an aid agency to the PLFP (see below). The donation was made to highlight the arbitrary nature of the EU's banned list of terrorist organisations and individuals. Prosecutor Ihrman decided that in regard to the Sweden's 1996 sanctions violations law that only a 'minor' offence had been committed with existing laws only allowing for the prosecution of serious offences.
Neither were charges brought under a new Swedish law on financing criminal acts, which requires proof that the purpose of the donation is to support such acts. Ihrman said that:
"The fact that the money was intended to be used for humanitarian purposes has played a role..."
Ali Esbati was disappointed:
"It is a pity that the terrorist list is not tested in a court, since that was one of the aims of our action".
Ung Vänster, the youth organisation of the Swedish left party (1), has made a donation to the Popular Front for the Liberation of Palestine (PFLP) in order to challenge its inclusion on the EU's proscribed terrorist organisations list.
Banning support for the PFLP
On 18 June 2002, the Council of the EU made a second update to the list which bans financial transactions with specific groups and individuals. The amendment was adopted by "written procedure", where the text is simply circulated among the governments and agreed unless there is any objection. The PFLP, the Palestine Liberation Front (PLF) and the Revolutionary Armed Forces of Colombia (FARC) were included for the first time with another five groups based outside of the EU. To protest against the inclusion of the PFLP, Ung Vänster organised a collection and transferred the 2750 SEK raised (£200 / 300 euros) through an account used by aid organisation Emmaus Bjorka for humanitarian work in the Shatila refugee camp in Lebanon. The organisation has long cooperated with the PFLP on a project to support Palestinian widows in Shatila. Ali Esbati, chairman of the Young Left, said the donation was being made to highlight:
The fact that EU can add or remove organisations on the list, without anything specific having happened, is arbitrary and clearly demonstrates its political character.
In July, Christer Johansson, chair of Emmaus and Christer Ascher, a board member and well known paediatrician, met with the Swedish government to discuss their donation and attempt to clarify their legal liability. They explained that the PFLP was part of a legitimate resistance movement in an occupied land and that its right to armed struggle against military occupation is recognized in international law. Emmaus is demanding the removal of the PFLP from the list, though the organisation will not challenge the law in the courts for fear of jeopardizing its other foreign aid projects.
How the EU list is drawn-up
Johansson and Ascher were told that no group "can be put on the list for political reasons", but that "ministers in the Council do make a political assessment before taking a decision". The interior ministry representatives said that one motivation was the PFLP's assassination of Israeli tourism minister Rehavam Zeevi in Autumn last year. Johansson and Ascher suggest that if such criteria were applied consistently, Israel "would be top of the list" (2).
Mattias Håkansson, a Swedish journalist, followed up the issue of why the PFLP had been included with a series of questions to Anders Kruse, head of judicial matters at the Swedish foreign ministry. Mr. Kruse said that the Swedish government was not prepared to discuss the reasoning behind the decision:
"This is a standpoint of principle. Behind the decision are ongoing investigations and other information that cannot be made public... There are criteria listed, and the Council is following those. However we cannot make public the background information of the decisions, and we do not wish to account for how we were given the information."
Neither would he confirm whether or not investigations concerning either FARC or the PFLP were actually taking place. It was then put to him that the inclusion of PFLP and FARC had been discussed before the EU's terrorist list was previously updated in May 2002, though again Mr. Kruse would not confirm this. Asked "what has happened since May requiring the addition of these organisations to the list and the removal of five people connected with ETA?", he replied:
"Now I may be skating on thin ice, but you could say that they were removed because the purpose of including them had been achieved, and that is to create judicial and political pressure in the Member state."
Declaration attached to EU Framework Decision on Terrorism meaningless?
Mr. Kruse was then asked about the non-binding declaration made by the EU Member States when adopting the recent Framework Decision on Terrorism. It reads:
It has to be understood... and cannot be construed so as to argue that the conduct of those who have acted in the interest of preserving or restoring these democratic values, as was notably the case in some Member States during the Second World War, could now be considered as "terrorist" acts. Nor can it be construed so as to incriminate on terrorist grounds persons exercising their legitimate right to manifest their opinions, even if in the course of the exercise of such right they commit offences.
He confirmed that the Council of the EU has not given any thought to this principle when proscribing organisations:
"In the specific decision, there is no such discussion. At an early stage there is knowledge about what could be done, or what can be agreed on."
Will the illegal donation be prosecuted?
Although the donation by the Young Left to the PFLP clearly breaches EU law, much confusion met Håkansson's attempts to find how it could be prosecuted under Swedish law, or even if a case would be brought. The situation is complicated by a new law that entered into force at the end of June which provides for up to six years of punishment imprisonment for those who give financial support to certain criminal acts. But the definitions of terrorism are not the same as in either the EU Framework Decision or in the Council's list of proscribed organisations. Thomas Grahn, head of operations at the Swedish financial inspection authority, suggests:
"The new law is simple. In order for a money transfer to be prosecuted, there must be a clear connection to the planned support of serious criminal actions."
Consequently, he suggests that the new law is unlikely to be applied, although Sweden is still bound by EU law and a 1996 Swedish law on implementing international sanctions. However, this law was designed to support the sanctions regime of the mid-1990s and was geared toward action against countries rather than individuals - though since its express aim is Swedish compliance with UN and EU measures it supposedly obliges Sweden to deal with any domestic actions in breach of those sanctions. Conversely, in the recent al-Barakaat case, where Swedish citizens were included on the UN and EU proscribed lists and then openly supported by the public (see below), prosecutors took no action on the grounds that the giving of money was motivated by humanitarian interest and not of committing a crime. Theoretically, both the 1996 and 2002 laws could be used to prosecute the PLFP donation.
Last Thursday (12 September) there was an announcement from Hans Ihrman of Stockholm's international prosecution chamber that an investigation had been opened. Al Esbati, chair of the Young Left, will be questioned next Tuesday (23 September) and welcomes the legal action.
"The EU decisions are producing a Kafkaesque situation and I hope that more people will react."
al-Barakaat
The PFLP donation is the second strong challenge in Sweden to the implementation of the international sanctions regime in the "war on terrorism". Last November, at the request of the US, the UN Taleban Sanctions Committee added a number of individuals and organisations to an existing list of those whose assets should be frozen and financial transactions forbidden. This UN Resolution was later applied across the EU under an EC financial regulation. Three Swedish citizens of Somali origin were included because of their work with al-Barakaat, the major "hawala" bank, or money transfer organisation, used by Somali people in exile in order to send money to their relatives at home. Since the normal banking system in Somalia collapsed in the early 1990's, around two thirds of the money transferred to Somalia is sent through al-Barakaat.
The Swedish government decided to comply with the UN sanctions immediately and froze the assets of the three men in November. This was met with widespread public criticism and a campaign urged people to oppose the order and give money to a quickly formed solidarity committee. More than 300,000 SEK (£22,000 / 33,000 euros) was eventually raised in order to provide for the basic needs of the three.
Slow to react to the public criticism, it was six weeks before the Swedish government began diplomatic contacts with the US in January. Lawyers for the three men met with the European Commission, the European Parliament and UN Committee on Human Rights and also lodged a case at the European Court. At no time throughout the affair has the US presented any evidence or specific accusations against the three men. To have their names removed from the lists they were ultimately forced to sign a statement to US authorities that they have never been or ever will be involved in the support of terrorism and would immediately cease all contacts with al-Barakaat. A joint request from Sweden and the US to the UN Sanctions Committee then resulted in a decision to remove their names at the end of August. The European Commission followed suit several weeks later and the three men have access to their financial assets again.
The government's handling of the case was discussed by the Committee of Constitution in the Riksdag (Swedish parliament), which concluded that although it should have reacted much earlier - and at the very least asked questions before implementing the UN and EU sanctions - the government could not not really have acted much differently because of its obligations under international law.
The Swedish government has since made a number of public claims that judicial safeguards should be built into the application of the EU lists. In July, Anna Lindh, Foreign Affairs Minister, called for clear criteria and the condition that there should be at least a preliminary investigation demonstrating the connection to terrorism before individuals or organisations could be included in the list. Henry Ascher of Emmaus is calling for a wider campaign:
"As a citizen, you have to at least know the rules of the game. It is hardly coherent with a democratic judicial system that the accused should prove his innocence. This new usage of law can only be compared to witch-hunts."
Notes
(1) Ung Vänster is the youth organisation of the Vänsterpartiet and with 14,000 members is the second largest youth organisation of the political parties in Sweden. Following the recent elections, the Vänsterpartiet (Left Party) is the fourth largest in the Swedish parliament.
(2) Rehavam Zeevi was assassinated by the PFLP in October 2001. In claiming responsibility, the group said it was a response to the assassination of PFLP head Abu Ali Mustafa by the Israeli state in August 2001.
* EU amends lists of terrorist organisations:
Report
(June 2002)
* EU to adopt arbitrary powers to freeze assets and seize
evidence: Report
(May 2002)
* USA puts three Swedish citizens on UN terrorist list:
Report
(April 2002)
* EU announces first list of terrorists: Report
(January 2002)
* EU Regulation forbidding financial transactions with
certain persons and entities - EU, US & UK lists of terrorist
or proscribed groups: Report
(October 2001)
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