The EU did not follow the European Parliament’s call to designate Iran’s Islamic Revolutionary Guard Corps (IRGC) as a terrorist group on the EU’s recent sanctions list. The High Representative of the Union for Foreign Affairs and Security Policy, Josep Borrell, justified this decision with the lack of a court decision finding that the IRGC is indeed a terrorist group. Is an EU court decision a pre-condition for sanctioning terrorist groups? Not necessarily. Nevertheless, Borrell does have a point.
The case of Iran
In response to the brutal repression of the ongoing protests in Iran that followed the death of 22-year-old Mahsa Amini after moral police custody, the European Union has put in place numerous sanctions against Iran.
In light of the repression of the protests and following the execution of anti-regime protestors, the European Parliament passed a resolution demanding the condemnation of Iran’s Islamic Revolutionary Guard Corps (IRGC) as a terrorist group. The IRGC is an Iranian army unit outside of the regular force charged with the task of protecting the Islamic system and one of the most powerful paramilitary organisations in the Middle East.
The Parliament’s resolution was not followed, and the new sanctions did not condemn the IRGC as a terrorist group. This was met with a certain surprise as not only the European Parliament but also the President of the European Commission and a few government officials of different member states have urged the EU to condemn the IRGC as a whole. Instead, the sanctions targeted several high-ranking members of the IRGC. The recent sanctions, on top of the imposed sanctions against Iran last December, consisted of travel bans and asset freezes.
The EU stated that it decided against listing the IRGC because of the lack of a court decision to that effect. The High Representative of the Union for Foreign Affairs and Security Policy Josep Borrell claimed that a court decision was a procedural condition for such a listing: “You cannot say I consider you a terrorist because I don’t like you.” Does he have a point?
Borell’s comment is right in the regard that sanctions – even though being a forceful political mechanism in the toolbox of diplomacy – have to comply with the principle of the rule of law. He is also right in his assessment that the legal conditions for such a listing are currently not met as a decision of a “competent authority” within the meaning of the relevant legal basis does not exist. However, the term “competent authority” is broad and not restricted to member state courts.
The EU sanctions regime
Sanctions are the most important policy tool of the Common Foreign and Security Policy (CFSP) of the European Union. EU “restrictive measures” – as sanctions are technically called within the CFSP – are adopted in a two-step procedure. First, a unanimous CFSP decision by the Council is required (Art. 29 TEU). This decision then allows for an implementing regulation (Art. 215 TFEU) of the sanctions, adopted by the Council by a qualified majority. With this mechanism, the political decision of the member states in their role as Council is translated into the substantive policy measure. In practice, the specific sanctions are already largely defined in the first step. Therefore, the two legal acts often have almost the same content and are adopted on the same day for practical reasons. This was also the case for the recent sanctions on Iran.
The main legal basis for EU counter-terrorism sanctions is Common Position 2001/931/CFSP which lays down the conditions for specific measures to combat terrorism, thus raising the threshold for evidence of terroristic activities. The Common Position “aims to protect the persons concerned by ensuring that they are included on the list at issue only on a sufficiently solid factual basis“ and therefore „seeks to attain that objective by requiring a decision taken by a national authority” (Joined Cases C‑539/10 P and C‑550/10 P, para 68).
The Court of Justice has made it clear on several occasions that sanctions are reviewed in regard to their conformity with fundamental rights despite their political function (the seminal decisions Kadi I and II being the most prominent examples). Still, the Court often limits its review of sanctions to procedural rules as opposed to a substantive assessment, thereby maintaining the Council’s political discretion (e.g. shown for the sanctions against Russia by Challet, 2021).
The EU’s definition of terrorism
The Common Position 2001/931/CFSP defines terrorist groups (Article 1). Building on that definition, the provision further clarifies that “the list (…) shall be drawn up on the basis of precise information (…) which indicates that a decision has been taken by a competent authority”. It therefore sets up a composite procedure consisting of a decision by a national authority and the decision by the European Council. The Common Position further develops what such “competent authority” means: “a judicial authority, or, where judicial authorities have no competence in the area covered by this paragraph, an equivalent competent authority in that area”. The question arises if this definition equals the condition of a member state’s court decision that Borrell referred to.
In the past, such decisions have indeed been taken by member state courts and then used by the Council for listings. This meets the threshold set up by the High Representative. But the wording ‘judicial authority’ (French: “autorité judiciaire”; German: “Justizbehörde”) is not restricted to courts. The Common Position itself names the Security Council of the United Nations as another source for listing a person or entity (which evidently is not a member state court). AG Sharpston once clarified that the definition of a “judicial authority” as a “court” would be “unduly narrow” (AG, Case C-27/09 P, para 133). She further elaborates that a decision of a “judicial authority” must be interpreted to mean not only “a finding of guilt by a court” but also “include the investigating and prosecuting authorities of the Member State(s)”. Concerning the threshold that must be met in order to fulfil the named criteria, she states that “(t)he legal systems of the Member States are simply too different for it to be possible to lay down a single, precise, point in proceedings where the test of ‘serious and credible evidence or clues’ will be met” (para 135).
The Courts have accepted decisions of Home Secretaries (e.g. Joined Cases T‑208/11 and T‑508/11, para 106) and Ministries for Foreign Affairs (Joined Cases C-539/10 P and C-550/10 P, para 66 sqq), and also made clear that the required “decision” “does not (necessarily) form part of a procedure seeking to impose criminal sanctions” (Joined Cases C‑539/10 P and C‑550/10, para 70). An administrative decision, therefore, can be sufficient (T‑289/15 (Hamas), para 74).
That leaves the second part of the conditions named by the High Representative, allegedly speaking of an “EU” court. Article 1(4) of Common Position 2001/931 is not restricting the decision’s origin to authorities of the member states. Indeed, the Council has already relied on decisions by third states such as the US and India. This was challenged by listed groups on the ground that the principle of loyal cooperation poses such restriction (e.g. Joined Cases T‑208/11 and T‑508/11, para 89) but was ultimately discarded by the Court of Justice which confirmed that decisions of third states count as a possible basis. The Court made clear that ‘‘competent authority” (…) is not being limited to the authorities of Member States but as being capable, in principle, of also including the authorities of third States” (Case C-599/14 P (LTTE), para 22).
However, the reliance on third-state decisions can be problematic as those authorities are not acting within the same fundamental rights framework than the member states (see e.g. AG Kokott pointing to this problem in C-599/14 P (LTTE), para 65). The Court of Justice clarified “that the Council must, before acting on the basis of a decision of an authority of a third State, verify whether that decision was adopted in accordance with the rights of the defence and the right to effective judicial protection” (paras 24, 26).
Decision of a competent authority in the case of the IRGC
The question remains if such a decision of a competent authority concerning listing the IRGC as a terrorist group exists already. So far, the United States as well as Israel, Bahrain and Saudi Arabia have listed the IRGC as a terrorist group. The designation by the US American Secretary of State dates back to 2019. The Court has held on different occasions that a decision of the US to label groups as ‘Foreign Terrorist Organisation’ cannot be considered a decision of a competent authority within the meaning of Article 1(4) of Common Position 2001/931, as it is lacking the required legal safeguards. It is on the Council to carry out this verification of compliance with the principle of the rights of defence. In proceedings of the PKK and the Hamas challenging their listing on the basis of a US decision, the Court ruled that the lack of an obligation of the US authorities to give a statement of reasons or to even publish the decision, and the lack of the Council’s necessary verification are violating the rights of defence (Case T-289/15 (Hamas), paras 56 sqq; Case T-182/21 (PKK) paras 82 sqq). Therefore, the existence of an US decision is not sufficient for a listing within the EU sanctions system.
Currently, the UK debates the labelling of the IRGC as a terrorist group. In January, the House of Commons debated a motion calling for the government to declare the IRGC a terrorist group. It is thus likely that the UK will list the IRGC soon. Decisions of the UK’s Home Secretary based on the UK Terrorism Act (which was already in force before Brexit) were confirmed as being decisions of a competent authority in the sense of the requirements by the relevant Common Position multiple times by European Courts (see e.g. recent T-182/21, para 55; briefly on the implications of the post-Brexit UK Sanctions and Anti-Money Laundering Act see Challet/Grumaz, p.18). A classification by the UK could therefore allow the Council to designate the IRCG as a terrorist group and impose sanctions on the whole army.
The decision of a “competent authority” needed for sanctioning is not restricted to judgements of member state courts. A condemnation by the UK’s Home Secretary could possibly be used as a basis for future sanctions. Whether such sanctions are helping the situation in Iran and the negotiations of the JCPOA is up to the discretion of the Council. That such sanctions have a relevant effect is shown by the reaction of Iran.
In any case, such a listing would mark a novelty as it would be the first time ever the EU lists the army of a country as a terrorist group.