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December 17, 2014 1:42 pm

Doubts Emerge Over EU Court’s Justification for Annulment of Hamas Terror Designation

avatar by Ben Cohen

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Palestinian children compelled to participate in a Hamas military parade. Photo: Twitter

The decision of the European Union General Court to annul the designation of Hamas as a terrorist organization has raised concerns that the Palestinian Islamist group will exploit any legal ambiguities over its present status to rebuild its organizational and fundraising network within Europe.

“The EU needs to clarify what the hell is going on,” Jonathan Schanzer, Vice-President for Research at the Foundation for Defense of Democracies and an expert on Hamas, declared in an interview with The Algemeiner.

While the EU has emphasized that the decision was based on procedural considerations, with its spokesperson adding that “it does not imply any assessment by the Court of the substantive reasons for the designation of Hamas as a terrorist organization,” the vexed question of what will happen in the event that an appeal is not lodged within the next three months – a temporary period during which, the court said, the measures against Hamas will remain in place – is still to be satisfactorily answered.

“I don’t have a lot of faith that the redesignation process will happen quickly,” Schanzer said. “It’s not as if the EU-Israel relationship is particularly warm.”

Hamas’s so-called military wing, the Izz al-Din Qassam Brigades, was first designated by the Council of the European Union in December 2001, with the designation of the entire organization following two years later. That erroneous “bifurcation” between its military and political wings is a source of worry to Schanzer, who questioned whether the General Court’s decision will prompt EU lawmakers “to refer back to this distinction” – a move that could potentially legitimize Hamas’s political, if not its military, activities in the eyes of EU.

The EU General Court asserted that its decision was based on a precedent established last October, when the LTTE, a terrorist organization based within the Tamil community in Sri Lanka, had its designation similarly reversed on the grounds of procedure. Just as in the current Hamas case, in the case of the LTTE, the EU said the annulment on the basis of procedure did not automatically mean that the “substantive” issue of designating the Tamil group as a terrorist organization would be revised.

As the Washington Insitute for Near East Policy’s Matthew Levitt pointed out in a briefing published yesterday, the current debate hinges “on the technical question of what may be considered as evidence to underscore an EU designation.”

The EU’s Common Position 931, which outlines specific measures to combat terrorism, requires, Levitt wrote, “information to come from ‘a competent authority.’ In the case of the LTTE, the court determined that that designation was based on information from Indian authorities as a ‘third state outside the EU.’ The court determined further that some of the information was ‘derived from the press and the internet,’ and that the Council did not carry out sufficient checks in determining ‘competent authority.'”

According to the court’s own account of its deliberations, similar reasoning was applied to Hamas. A legitimate designation would be based “on elements which have been concretely examined and confirmed in decisions of national competent authorities within the meaning of the Common Position,” the court said, something which apparently excludes evidence provided by non-EU members like the US and Israel, as well as material gleaned from the press and the internet.

The question of what constitutes a “competent authority” is an “odd one in general, and especially in the context of Hamas, given that CP 931 lays out its standards rather clearly,” Levitt said. CP 931 specifies that “a competent authority is a judicial authority or, where judicial authorities have no competence in the area, an equivalent competent authority.”

Wrote Levitt: “In this case, Israel and the United States reportedly provided information based on their respective designations of Hamas and evidence from criminal court cases within their jurisdictions. Moreover, information underpinning the Hamas designation likely came from at least one EU government, Britain, which banned the group’s Qassam Brigades on its own in March 2001.”

Nonetheless, Levitt expressed confidence that the Hamas’s terrorist designation would be reinstated. “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,” he wrote. “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. Those investigations should now serve as the basis for a renewed terrorist designation of Hamas.”

However, just as the LTTE hailed the General Court’s decision as a “milestone achievement,” so, likely, will Hamas. The coming days and weeks, Schanzer said, will provide an opportunity for Hamas “to debunk and destroy the designation.”

“There’s also the question of whether Hamas will use this opportunity to organize and move funds in ways that may have been illegal,” Schanzer warned.

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