I thank the Chairman for the invitation to appear before the committee. For the benefit of the committee I will outline the procedures leading up to the designation of the organisation known as the political wing of Hamas, which took place on 12 September 2003 and is referred to as Common Position 651.
On 12 September 2003 following the completion of a written procedure, the Council designated the political wing of Hamas as a terrorist organisation. The Council did so by adding the political wing to two of the lists that the Council maintains on the proscription of terrorist organisations. The military wing of Hamas had already been proscribed on 27 December 2001.
The following was the procedure leading up to the designation. First, I will deal with the legal basis for designation procedures. UN Security Council Resolution 1373, adopted on 28 September 2001 in the wake of 9/11, decided that all UN member states should implement a freezing of funds and other economic resources against persons who commit, facilitate or otherwise engage in acts of terrorism. This resolution adopted by the Security Council under Chapter VII of the UN Charter is binding on all UN member states.
On 27 December 2001, the Council adopted two instruments; the first was Council Regulation 25/80 of 2001 that provides for specific measures directed against certain persons and entities, principally the freezing of assets. This Council regulation, which is implemented under Council decision 646/2003, provides for the preparation and regular updating of an annexe containing a list of persons, groups and entities, external to the Union, which are involved in terrorists acts. This list contains the names of 26 persons and 23 groups and entities.
The second instrument adopted by the Council on 27 December 2001 was Common Position 931 and this provides for the application of specific measures to combat terrorism. This common position, which is given effect by Council Common Position 651, also provides for the preparation and regular updating of an annexe containing a list of persons, groups and entities involved in terrorist acts. The difference between Council Regulation 25/80 and Common Position 931 is that the common position may contain names that are both external and internal to the Union with the proviso that the internal names are subject to Article 4 of the common position, that is, police and judicial co-operation in addition to the freezing of the assets. The EU has designated 52 persons and 34 groups and entities under Common Position 931.
As to the role of COREPER and Clearing House, which are the bodies concerned with designation, an ad hoc committee, known as Clearing House, was established by COREPER, that is, the Committee of Permanent Representatives of member states, on 7 December 2001 to conduct the preparatory work on the drawing up of names of persons, groups or entities for inclusion in the two EU lists referred to. The work of Clearing House is confidential. Its functions include gathering names and information from relevant sources, checking that the data corresponds to the criteria and the guarantees set out in Common Position 931 and making proposals for examination by COREPER prior to their transmission to the Council for its approval. Clearing House also reviews the names of designated persons and entities on a regular basis to ensure that there are grounds for keeping them on the two EU lists.
I will now outline Clearing House procedures, in other words, the way Clearing House conducts its work. Proposals for inclusion on either or both of the two EU lists may be made at Clearing House by a member state on foot of a decision by a competent authority. A competent authority for the purposes of Clearing House is usually a judicial body. Proposals by third countries on foot of a decision by a competent authority in those countries may be made through the Presidency or through a member state.
Before each Clearing House meeting, a list specifically for consideration at that meeting is circulated by the Presidency and it contains the names of persons, groups and entities which have been submitted to it but on which it has yet to reach a decision as to whether to forward them to COREPER. In dealing with this list, every proposal is considered individually at every meeting and member states may apply reserves against the forwarding of names from the list on any one of the following three bases: a scrutiny reserve, which a member state will invoke where it believes the evidence submitted to Clearing House is insufficient to justify designation; a criteria reserve, where the member state believes the individual or group proposed does not meet the criteria set out in Common Position 931; and a political reserve, where a member state believes that wider political considerations make the inclusion of the individual or group undesirable at this time.
Once it is clear from a Clearing House meeting that there is likely to be a consensus among member states to add or remove persons or entities from the two EU lists, the Presidency will ask COREPER to consider the proposals. If COREPER agrees, it will consider and pass to the Council a draft Council decision and a draft common position, both of which are short texts merely updating the annexes to the original Council decision, whether that is 25/80 of 2001 or Common Position 931 of 2001. Decisions to include additional names on the two EU lists are taken by the Council acting unanimously.
To ensure that funds are not moved out of the EU during the time between the decision to designate the person or entity and the entry into force of the revised EU list, a decision is not held over until the next Council meeting. Instead, the Council under written procedure usually considers it. In the case of the decision to designate Hamas, COREPER considered the matter on 11 September and the draft common position and Council regulation were circulated to member states later that day for decision under written procedure. All member states indicated their approval to the designation by close of business on Friday, 12 September, and the acts were therefore adopted that day and their provisions applied immediately.