테러혐의자에 대한 UN의 선별적 제재 ― 유럽사법재판소의 Kadi 판결을 중심으로 ―

The UN Security Council has increasingly applied ‘targeted sanctions’, also known as ‘smart sanctions’, imposing financial and travel sanctions against leaders and officials deemed to share some responsibility in creating the circumstances necessitating the imposition of sanctions. This development is generally positive, as it minimized the unintended impact upon innocent civilian populations. Targeted sanctions have also been introduced in a number of Security Council resolutions directed against Osama bin Laden, Al-Qaida, Taliban, and individuals and entities allegedly associated with them, which are referred to as the 1267 sanctions regime. Now these sanctions are widely viewed as a critical instrument in the ‘war on terror’. However, the ‘blacklists’ created under the 1267 sanctions regime cause particular problem. As terrorist group and individuals and entities allegedly associated with them, which operate in secret, are difficult to identify, there is a high probability that listees will be mistakenly identified. What is worse, the 1267 blacklists entail an allegation that listees are terrorists or terrorist associates. Nonetheless the 1267 sanctions regime contains minimal allowance for due process. The lack of procedural protections has sparked widespread criticism from governments, international organizations and human rights advocates. Recently, individuals and entities who have severely affected by such sanctions, have initiated legal proceedings in the courts of the Member State implementing such sanctions. Dealing with this case, the court finds itself in a dilemma: if the court choses to review and invalidate such sanctions, it could undermine the 1267 sanctions regime and violate the Member State's obligations under Article 25 of the UN Charter; if the court refuses to hear challenge, it could deny human rights of the petitioner. In September 2008, the ECJ issued a landmark ruling as for listings under the 1267 sanctions regime. In Kadi v. Council, the ECJ was the first among regional and international tribunals to hold that the sanctions imposed by the Security Council anti-terror resolutions infringed certain fundamental rights under European Community law. The ECJ held that Security Council Resolutions are binding only in international law, emphasizing the separateness, autonomy, and constitutional priority of the EC legal order over international law. In spite of this approach, the Kadi decision of the ECJ was welcomed. In particular, human rights advocates hailed this judgment. Such response illustrates the weakness at the heart of the 1267 sanctions regime. While the UN Security Council has added procedural protections over the years, such improvements are clearly insufficient. If the Council fails to address this problem, Member States may become increasingly reluctant to comply with the UN counter-terrorism sanctions regime. Such a result would frustrate the effectiveness of multilateral counter-terrorism sanctions and even cast a shadow over Council authority. The Council must recognize that international peace and security must be maintained with due respect of human rights.