Australia/Israel & Jewish Affairs Council

Hamas removed from EU list of terror groups, temporarily?

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On Sunday, Hamas celebrated its 27th anniversary with a military parade, of around 2000 armed fighters, displaying its latest long-range rockets and vowing to destroy Israel in line with its Charter.  At the parade, senior Hamas leader Khalil al-Hayya declared, "This illusion called Israel will be removed. It will be removed at the hands of the Qassam Brigades," referring to Hamas' military wing. Hamas also thanked Iran for supplying it with weapons and funds.  

Then on Wednesday, the General Court of the European Union (EU) in Luxembourg accepted a petition by Hamas to remove the group from the EU's list of terrorist organisations.  For an explanation of the key arguments in the case, see counter-terrorism expert Matthew Levitt's analysis here.  Levitt notes that the judgment follows a similar action in October that annulled the Council of the European Union's designation of the Liberation Tigers of Tamil Eelam (LTTE) as a terrorist group.

In the decision on Hamas, the EU Court emphasised that its judgment was based on legal technical and procedural reasons, arguing the reasons given for Hamas' designation were based on media and internet reports and not considered analysis by "competent authorities".  The Court's press release stated:

"In today's judgment, the General Court finds that the contested measures are based not on acts examined and confirmed in decisions of competent authorities but on factual imputations derived from the press and the internet.

However, the Common Position and the case-law of the Court requires that an EU decision to freeze funds is based not on factual elements that the Council may have derived from the press or the internet, but on elements which have been concretely examined and confirmed in decisions of national competent authorities within the meaning of the Common Position.

The Court stresses that those annulments, on fundamental procedural grounds, do not imply any substantive assessment of the question of the classification of Hamas as a terrorist group within the meaning of the Common Position." 

The Court also decided to postpone implementing the ruling for three months to allow for an appeal of the decision, which means that Hamas funds will remain frozen during that time.

Despite the Court's decision being based on a legal technicality, and its likely appeal, Hamas celebrated the news as a "victory".  Deputy Hamas Chief, Moussa Abu Marzouk said:

"The decision is a correction of a historical mistake the European Union had taken when they listed Hamas movement on the terror list. Hamas is a movement of resistance and it has a natural right according to all international laws and standards to resist the occupation. The international community should help it [Hamas] resist the occupation and not the opposite."              

Meanwhile, Israel's Prime Minister Benjamin Nentanyahu was furious with the EU Court's decision, and said:

"The burden of proof is upon the European Union, and we expect them to immediately put Hamas back on the list, as anyone understand[s] that it is an inseparable part of it."

Netanyahu added, "Hamas is a murderous terrorist organization, which states in its charter that its goal is to destroy Israel. We will continue to fight in with determination and strength so that it will never achieve its goal."

EU officials were quick to downplay the court's verdict. EU foreign policy chief Federica Mogherini promised that the EU would appeal the decision and make sure that Hamas will again be blacklisted.

On Wednesday, Mogherini's spokesperson Lina Lietzen sent out a press release stating that the court's ruling is "clearly based on procedural grounds and it does not imply any assessment by the Court of the substantive reasons for the designation of Hamas as a terrorist organization." The EU institutions will "take appropriate remedial action, including any eventual appeal to the ruling," Lietzen stated.

The EU Ambassador in Israel, Lars Faaborg-Andersen also said that there will be no change in EU policy regarding recognising Hamas as a terrorist organisation, and the EU will continue to adhere to the Quartet principles, which would mean the EU would refrain from interacting with Hamas as long as it does not renounce violence and recognise Israel's right to exist.

Going forward, Matthew Levitt claims that the EU should be able to relist Hamas based on its extensive evidence from recent EU cases.  Levitt writes:

"The good news is that a plethora of Hamas criminal cases have been opened within EU member states over the past few years, providing plentiful information derived from strictly European sources regarding the group's terrorist nature. Indeed, EU authorities have been working closely with Israel to counter the burgeoning Hamas fundraising network that has been taking root in Europe despite the EU ban (see "Kidnapped Israeli Teens Compel Scrutiny of Hamas's International Finances"). Those investigations should now serve as the basis for a renewed terrorist designation of Hamas."

Israeli international law expert Amb. Alan Baker adds to this point:

"One may assume that those competent authorities will indeed take the requisite measures to ensure that the designation of Hamas as a terrorist organization will take into consideration the clear evidence that exists regarding the terrorist nature, motivation and activities of Hamas, including such activities as:

▪ The bombardment of Israeli civilian towns and villages by more than 4,000 rockets;

▪ The use of their own civilians, including families, homes, children, schools, hospitals and mosques as shields for rocket emplacement and terror headquarters;

▪ Initiation and celebration of the kidnapping and murder of the three Israeli youths prior to the hostilities in Gaza;

▪ The terrorist attack on worshippers in a Jerusalem synagogue and subsequent celebrations."

Yet while the Court's decision appears to be a "legal glitch" it could still have implications that work in favour of Hamas and even other terrorist organisations, as Cnaan Lipshiz at the Times of Israel writes:

"The ruling, [Senior researcher at Tel Aviv University's Institute for National Security Studies and former Israeli ambassador to the European Union, Oded] Eran added, ‘gives the European Union three months to sort out the procedural issues. If the union fails to take action that corrects these issues within that time frame, only then should the consequences of the ruling be viewed as a political statement.'...

Still, the ruling could encourage those within the EU who favor dialogue with Hamas. And then there are questions about what the ruling means for the more than 20 terrorist groups still on the list, including Popular Front for the Liberation of Palestine, Palestinian Islamic Jihad and the military wing of Hezbollah.

‘Hamas was the only entity that contested the designation, and it may just be that the other groups will contest it too - based on what happens in the next three months,' Eran added."

Meanwhile, a Wall Street Journal editorial provided a stinging critique of the EU Court's decision:

"This judicial incursion into foreign policy is particularly troubling since courts should defer to law enforcers and political leaders when it comes to national security. By second-guessing European officials at a terror group's behest, the court has jeopardized the ability of those officials to set security policy. Don't be surprised if other terror groups line up in Luxembourg to litigate their way out of asset freezes and other sanctions."

Hamas is clearly an Islamist terrorist organisation, and is itself proud of its history of attacks on innocent civilians that including suicide bombings, kidnappings and rocket attacks. The EU should stick to its word and quickly appeal the decision before Hamas assets become unfrozen. 

Sharyn Mittelman

 

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