Hamas Benefits from Absurd Judicial Decision

In Oliver Twist, published in 1838, Charles Dickens has one of his characters, Mr. Bumble, declare, “If the law supposes that, the law is an ass, an idiot.”  One hundred and seventy-six years later Mr. Bumble would have used the same words in referring to a decision of the General Court (GC) of the European Union. On December 17, 2014 GC ordered the EU to remove Hamas from its terrorist blacklist.

The Council of the European Union in Luxembourg on December 27, 2001 adopted a common position as its response to combating terrorism. This meant freezing the funds of individuals and groups on a list adopted by the Council.  The list included Hamas on the list and has maintained that group on the list since then. Other countries, including the U.S. in October 1997, and Australia, Canada, Japan, Egypt, and Britain regarding the military wing, have put Hamas on their terrorist list.

The GC is an independent court, attached to the European Court of Justice, composed of one judge from each of the 28 member states of the EU.  It is regarded as the second highest tribunal of the EU, and its decisions can be appealed on a point of law to the ECJ.  It took the case C 400/10, Hamas v. Council of the EU and delivered judgment.

But that judgment is bizarre if not hypocritical in making a political decision. The GC called its decision a procedural one, a “technical issue,” not a political one by it or by the EU countries. The decision, it said, did not “imply any substantive assessment of the question of the classification of Hamas as a terrorist group.” It said nothing substantial about the status of Hamas. Yet, it challenged the very basis of the EU political decision that put the al-Qassam Brigades (the militant Hamas military wing) in its first terrorist blacklist in December 2001. As a result of a number of Hamas suicide bombings during the second Intifada, the EU added the political wing of Hamas to its terrorist list in 2003. Hamas in 2010 and again in 2013 appealed its designation as a terrorist group. It claimed that it had not been given a hearing when it was put on the terrorist list.

The GC had made almost exactly the same ruling on October 16, 2014 concerning the Tamil Tigers group in Sri Lanka. Arguing that that the decision was based on a technicality, it held that the blacklisting of the group, that had killed at least 40,000 Tamil civilians, was based on “factual imputations derived from the press and the internet,” and this was insufficient. In other actions, the European court has struck down EU decisions on sanctions of Syrian and Iranian companies. EU sanctions against Syria are imposed on people and companies who are responsible for the violent repression against the civilian population in Syria and persons associated with them. Nevertheless, the GC annulled the inclusion of some persons on the list.

The GC said that EU decisions on Hamas were not proper. They were based on factual elements that the EC may have derived from the press or the internet, not “on elements which have been concretely examined and confirmed in decisions of national competent authorities.” Therefore, the GC annulled the contested measures to keep Hamas on the list of terrorist groups but it held that they were to be maintained for a period of three months or until appeals against the decision were ended. The assets of Hamas will thus for the moment remain frozen in the EU.

The consequence is that the GC has made not simply a legal ruling, but indeed a political decision that is the responsibility of the EU governments.  The decision implicitly insulted the intelligence of the EU officials who had designated Hamas as a terrorist group. That designation resulted from the EU’s Council Common Position of December 27, 2001 that clearly defined those involved in terrorist acts as seriously damaging a country, seriously intimidating a population, attacking a person’s life which may cause death, and kidnapping or hostage taking.

One wonders what evidence the European Court needs as appropriate, or what it called “facts previously established by competent authorities” for a designation of terrorism to be made in the case of Hamas. Is the indiscriminate and disproportional firing by Hamas of thousands of rockets at Israeli civilians insufficient? Hamas has been guilty of all the offences mentioned in the Common Position. Plentiful evidence about Hamas will be forthcoming during a number of criminal cases concerning it that will take place in some European countries.

Ironically, the Court’s decision coincided with a massive rally celebrating the 27th anniversary of Hamas. In a speech on the occasion in Gaza City on December 14, 2014 Khalil al-Hayya, a senior Hamas official, declared, “The illusion called Israel will be removed. It will be removed at the hands of the al-Qassam Brigades.” He reaffirmed the Hamas Charter that calls for the destruction of Israel.

The General Court hears cases brought against EU institutions. European Union now has to decide on its options, one of which is to appeal the ruling. It certainly must uphold the principles of the Middle East Quartet that Hamas must renounce violence and recognize the existence and legitimacy of the State of Israel.

By coincidence, the European Parliament on December 17, 2014 voted by 498 to 88 with 111 abstentions in favor of a watered-down, non-binding resolution. It called for the recognition of Palestinian statehood and a two-state solution.  It also called for this recognition to go hand in hand with the “development of peace talks which should be advanced.” The General Court has not been helpful in this advancement. By proposing that Hamas no longer be regarded as a terrorist group it has in effect given a green light to Hamas activity which still regards Israel as an “illusion,” and aims at the elimination of the State of Israel.