When the EU’s top diplomat, Josep Borrell, said on Monday that the bloc cannot list the Islamic Revolutionary Guard Corps as a terrorist group without a court ruling, it appeared to be an attempt to push back after calls by European politicians for the powerful Iranian organisation to be sidelined.
This raises questions about what Europe can do next to obtain the listing for the IRGC and what the consequences could be, analysts and an EU offcial have told The National.
“It is something that cannot be decided without a court decision first,” Mr Borrell told reporters in Brussels, as he arrived at a meeting of foreign ministers. “You cannot say I consider you a terrorist because I don’t like you.”
Pressure has been increasing on Mr Borrell to take action against the IRGC as the EU Council on Monday adopted its latest package of sanctions against Iran regarding human rights violations, in the context of Tehran’s brutal crackdown against protesters, including four hangings.
The German and French foreign ministers on Monday said they were in favour of such discussions taking place at an EU level.
Members of the European Parliament and the Dutch Parliament have both recently called on the EU Council to take action against the IRGC.
But such calls have been met with disbelief by some EU officials.
One official told The National that either European politicians do not know the procedure or they are aiming to deliver a” populist” message to their domestic audiences.
“The EU has no competences before a national authority acts, and that’s based on what the member states themselves decide,” they said.
Some analysts believe that the EU is hesitant to list the IRGC because it is attached to reviving a defunct nuclear deal with Iran. Others caution against a challenge in EU courts.
So what exactly needs to happen?
What does EU law say?
The EU Council’s common position adopted on December 27, 2001, on the application of specific measures to combat terrorism defines a “terrorist act” as seriously intimidating a population, unduly compelling a government or an international organisation to perform or abstain from performing any act, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or international organisation.
For the EU Council to designate an entity as a terrorist organisation, a decision must have been taken by a competent authority, which refers to a judicial authority in one of the EU’s 27 countries, said the EU official.
The common position states that a decision must be “based on serious and credible evidence or clues, or condemnation for such deeds.”
Have European courts ruled on the IRGC so far?
No, said the EU official.
“The moment that a national decision is taken, the country where it was taken can bring it to the Council and say, guys, we need to discuss this,” they said.
“Or another country can do it, for example if they hear that there’s been a decision taken there.”
The judiciary is fully independent in most EU countries, which puts politicians calling for listing the IRGC as a terrorist organisation in an awkward position.
“They cannot order the judiciary to do it. It needs to be a prosecutor general most likely, or a private citizen,” said the EU official. “There needs to be evidence gathering, and the process takes some time.”
What would the consequences of listing the IRGC be?
A terrorism listing carries heavier consequences than sanctions.
Sanctioning triggers a travel ban and an asset freeze, but sanctioned individuals may still obtain a visa for the EU if their stated intent is to hold a meeting about their sanctioning, said the official.
Entities that have been listed as terror organisations by the EU in the past include ISIS, Al Qaeda, Hamas, and the military wing of Lebanese political party Hezbollah.
“Putting an entity on a terror list is like a complete quarantine,” said the EU official. “There is no contact whatsoever.”
Politicians who closely follow Iran have warned that any EU decision to list the IRGC needs to be water-tight to avoid legal challenges, which have happened in the past.
The EU General Court removed Palestinian militant group Hamas from its list of designated terrorist organisations in 2015. The Council appealed in 2019.
“Adding #IRGC on terror list and then having a court annul that decision would be the worst of all signals,” MEP Hannah Neumann, chairwoman of the delegation for relations with the Arab Peninsula, tweeted earlier this month.
The Wall Street Journal on Friday reported that Berlin recently asked EU lawyers to advise whether a US federal court ruling on IRGC involvement in a bombing in Saudi Arabia in 1996 could allow for a terrorism listing.
EU lawyers responded onThursday by saying that EU courts could decide that groundings are not strong enough, reported the US newspaper, which quoted people briefed on discussions.
Bente Scheller, head of the Middle East and North Africa Division at the Heinrich-Böll-Stiftung Foundation in Berlin, told The National that the younger generation of Iranian diaspora activists has aggressively lobbied western politicians on social media to list the IRGC.
Calls in that direction from German politicians, including Foreign Affairs Minister Annalena Baerbock, might be aimed at appeasing such activists, said Ms Scheller.
Yet such a listing comes with risks, she warned. In addition to the danger of an EU court overturning the procedure, “the IRGC are involved in every business sector, and thus any business with Iran will be a nightmare to check under a sanctions regime including them,” she said.
Has the EU sanctioned the IRGC in the past?
Yes, the EU has sanctioned the IRGC or members and entities linked to it under four different sanctions regimes in the past: for violating human rights, for developing weapons of mass destruction, and for supporting or participating in wars in Ukraine and Syria.
In recent months, the EU has sanctioned multiple members of the IRGC for their role in the brutal repression of recent protests.
The EU also sanctioned the IRGC in 2010 as an entity due to its prominent role in developing Iran’s nuclear programme, but these sanctions will be lifted later this year as part of the 2015 nuclear deal.
Are there other ways of doing this?
Some analysts such as Jason Brodsky, policy director of US non-profit organisation United Against Nuclear Iran, believe that the EU can list the IRGC as a terror group without waiting for a European court verdict.
Mr Brodsky told The National that this has been done before.
The EU’s terrorism lists include individuals that were listed based on US court decisions, such as IRGC officer Gholam Shakuri.
He was indicted in 2011 for a plot to assassinate the Saudi Arabian ambassador to Washington, and was added to the EU terrorism list based on that indictment.
The list also include entities that were added after a European court indictment.
This was the case with Iran’s Directorate for Internal Security of the Iranian Ministry for Intelligence and Security, which was designated a terror group in 2019 following a foiled attack against Iranian opponents in exile on European soil.
Mr Brodsky said that the EU currently lacked the political will to list the IRGC because officials were attached to reviving the now-defunct nuclear deal.
“Iranian people are chanting: death to the IRGC. Standing with them would be a very powerful move,” he said.