NETHERLANDS: URGENT REQUEST FOR SUPPORT IN EU'S

S E C R E T SECTION 01 OF 02 THE HAGUE 000636 NOFORN SIPDIS STATE FOR S/CT, EEB/TFS, EUR/ERA, EAP/RSP TREASURY FOR TFFC, OFAC, OIA NSC FOR KKVIEN E.O. 12958: DECL: 10/22/2019 TAGS: ETTC KTFN PTER EFIN KCRM KJUS KHLS EUN NL SUBJECT: NETHERLANDS: URGENT REQUEST FOR SUPPORT IN EU'S SISON CASE REF: A. THE HAGUE 0309 ¶B. USEU TODAY 10/09/09 ¶C. EMAIL CANAVAN-FLORIO 10/22/09 Classified By: DCM Michael Gallagher for reasons 1.4 (b),(d) ¶1. (U) URGENT ACTION REQUEST: This is a joint message from AmEmbassy The Hague and USEU. The Dutch are approaching an October 27 deadline and request USG assistance if possible. Please see paragraphs 7-9. END ACTION REQUEST. ¶2. (S//NF) SUMMARY: On the margins of the October 15-16 Belgium-sponsored seminar on targeted sanctions (SEPTEL),a U.S. delegation met with Dutch MFA counterterrorism officials to discuss next steps in the case of Jose Maria Sison. The Netherlands intends to push the EU Council to appeal a September 30 EU Court of First Instance (CFI) judgment that struck down the EU's autonomous sanctions against Sison (REF B, background para 10). Dutch authorities object to the court's finding that immigration officials are not a competent counterterrorism authority. They would provisionally argue that "more services need to be involved in the fight against terrorism." Interlocutors pressed for continued USG support to construct legal arguments for the high court. The deadline for a Council decision to appeal, and thus for U.S. input, is October 27. With respect to the Sison judgment's broader implications for preventive sanctions measures, Member States have decided to await judgments in the Al-Aqsa and MEK cases before amending EU counterterrorism regulations. END SUMMARY. -------------- Dutch Concerns -------------- ¶3. (C) Upon conclusion of the October 15-16 Belgium-sponsored "Seminar on Strengthening the UN Targeted Sanctions through Fair and Clear Procedures" (SEPTEL),an interagency U.S. delegation held a bilateral meeting with Head of Counterterrorism Division Frank Van Beuningen and Senior Policy Advisor for Counterterrorism Wendela Haringhuizen, both from the Netherlands Ministry of Foreign Affairs. The Dutch had requested the meeting to seek feedback on the sanctions seminar and to discuss next steps in the case of Netherlands-based Philippine national Jose Maria Sison. ¶4. (S//NF) Haringhuizen noted several developments, mentioning the September 30 CFI judgment, Dutch efforts to maintain Sison's EU terrorism sanctions listing, and a laissez-passer that Sison has requested to leave the Netherlands for the UK. Haringhuizen reminded the delegation that the Netherlands had initially pursued Sison's designation upon request from the USG. Local immigration officials initiated counterterrorism proceedings against Sison based upon information provided by the Dutch secret service in the mid-1990s. ¶5. (C//NF) According to Haringhuizen, the Netherlands will continue to push the EU Council to appeal the CFI's "very restricted interpretation." Particularly troubling for the Netherlands was the judgment's failure to describe what constitutes a competent authority to undertake counterterrorism sanctions designations. They are concerned that the judgment sets a precedent, narrowing the scope of who can serve as the basis for EU terrorism sanctions Qwho can serve as the basis for EU terrorism sanctions decisions. Dutch authorities, who are less concerned with maintaining Sison's listing within the EU, seek clarification on this point of law and would provisionally argue that "more services need to be involved in the fight against terrorism." They have not yet decided whether to raise the issue of administrative decisions not linked to criminal investigations or prosecutions, thereby exposing the EU to a ruling on the viability of targeted sanctions as a preventive measure. ¶6. (S//NF) EU Member States met on October 14 to discuss implications of the Sison case. Haringhuizen explained that THE HAGUE 00000636 002 OF 002 "Member States have sympathy but are not supporting" an appeal and that large Member States (e.g. UK and Germany, please protect) have explicitly opposed the Dutch position. The Council Legal Service has advised Member States against an appeal, arguing that it is losing too many terrorism finance-related cases and should not risk losing more. This defeatist logic dismays the Dutch, in light of recent positive outcomes in the Bank Melli and El Morabit cases. On the larger question of preventive sanctions, Member States have decided to await judgments in the Al-Aqsa and Mujahedin e-Khalq (MEK) cases before amending EU counterterrorism regulations. -------------- Dutch Request to USG -------------- ¶7. (S//NF) The GONL has not/not asked for explicit U.S. help in convincing EU capitals to support the appeal. However, Haringhuizen requested USG advice to strengthen the GONL's legal argument in favor of an appeal, stating that EU courts would consider the experiences and conclusions of external jurisdictions. Specifically, the Dutch need examples of U.S. courts upholding domestic terror finance listings without a court conviction on terrorism charges and/or based on the finding of a government authority other than the Departments of Justice or Treasury. ¶8. (S//NF) The additional CP 931 Working Group (EU terrorism sanctions designation body) meeting scheduled for October 27 will be the last opportunity for the Council to commit to an appeal and is therefore a firm deadline for any U.S. help. Absent the support of a simple majority of Member States, the GONL could in theory appeal independently on a national basis. The GONL has discussed this internally but sees no upside to fighting for a principle on its own. In addition, Philippines-provided information tying Sison to money laundering activities is insufficient to support prosecution in the Netherlands. Sison's asset freeze and travel ban in the Netherlands will thus likely disappear by early 2010 absent an appeal by the Council. ¶9. (S//NF) Van Beuningen concluded the meeting by requesting additional information of "any type or classification" related to Sison. He thanked the delegation for previous U.S. support, claiming that USG-provided intelligence had been essential to maintaining Sison's listing within the EU. -------------- -- Background on Latest Sison Case at the EU Court -------------- -- ¶10. (C) Sison is believed to head the New People's Army (military wing of the Philippines Communist Party),which seeks to overthrow the national government and was blamed for 94 assassinations in 2008. He has resided in the Netherlands since 1987, when the Philippines revoked his passport. In a September 30 ruling, the EU Court of First Instance ("CFI") condemned the fact that the Dutch courts' review of Sison's ties to terrorism was incidental to an asylum application, yet served as the basis for EU sanctions designation. The CFI struck down the EU's autonomous listing of Sison, finding QCFI struck down the EU's autonomous listing of Sison, finding that a decision to "instigate investigations or prosecute" must "form part of national proceedings seeking, directly and chiefly, the imposition of measures of preventive or punitive nature, in connection with the combating of terrorism and by reason of that person's involvement in terrorism." Council Legal Service contacts fear the decision may have far-reaching implications, including the potential prohibition of preventive measures based on administrative decisions not linked to criminal investigations or prosecutions. Lawyers continue to study the ruling in capitals. END BACKGROUND. LEVIN