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The EU Can, and Should, Designate the IRGC as a Terrorist Group
Also published in Lawfare
Legitimate policy debates aside, and contrary to recent statements by the EU’s foreign policy chief, Europe has more than enough legal authority and evidence to designate the organization.
The European Parliament voted overwhelmingly in favor of a measure calling for the European Union to designate the IRGC, Iran’s Islamic Revolutionary Guard Corps, as a terrorist organization on Jan. 18. The vote was 598 to 9, with 31 absentees. Just the previous day, European Commission President Ursula von der Leyen spoke at the World Economic Forum in Davos and publicly backed the idea of an EU designation of the IRGC as a terrorist organization. But when EU foreign ministers met in Brussels just a few days later to discuss the issue, they opted to add more individual names to the bloc’s list of people sanctioned for human rights abuses rather than to list the IRGC as a terrorist group.
The reason, according to EU foreign policy chief Josep Borrell, is that such a designation first requires a decision by a European court. “It is something that cannot be decided without a Court. A Court decision [is needed] first. You cannot say: ‘I consider you a terrorist because I do not like you.’ It has to be [done] when a Court of one [of the EU] Member States issues a legal statement, a concrete condemnation. And then we work at the European level, but it has to be first a Court decision.”
This, however, is not the case. There is no shortage of evidence—all admissible under the rules underpinning the EU terrorist designation process—to support designating the IRGC as a terrorist group.
The EU’s Designation Process Explained
The EU’s legal basis for designating a terrorist group is Common Position 931, or CP 931, created in 2001 as a means of implementing U.N. Security Council Resolution 1373, which requires member states to implement measures to “prevent and suppress the financing of terrorist acts.” Under Resolution 1373, states are called upon to criminalize terror financing, freeze the funds or other assets of those who commit or facilitate terrorist acts “without delay,” and prevent those engaged in such activities from using one state’s territory to “finance, plan, facilitate or commit terrorist acts against other states or their citizens.”
Under CP 931, any person, group, or entity involved in terrorist acts can be designated “when a decision has been taken by a competent authority in respect of the person, group or entity concerned.” Such a “decision,” the EU’s fact sheet on CP 931 explains, could be the instigation of an investigation or prosecution for either a terrorist act or even just an attempt to carry out or facilitate such an act “based on serious and credible evidence or clues.” The fact sheet adds that designations can also be based on “condemnation for such deeds,” even without a conviction. The “EU Terrorist List” policy document on the European Council’s website notes that a terrorist designation must be based on “precise information indicating that a decision has been made by a judicial or equivalent competent authority” concerning the initiation of an investigation, the prosecution of a terrorist for an attempt to carry out or facilitate such an act, or the conviction for any of those actions.
In other words, an EU designation can be based on a court conviction or even a condemnation by a court, but a court decision is not a necessary condition for designation. CP 931 states that a judicial authority or “an equivalent competent authority” can issue such a decision. Moreover, even just the initiation of an investigation could suffice to support a designation, and these would be carried out by police or other investigative authorities, prosecutors, national designating authorities, or others.
Moreover, contrary to Borrell’s statement, CP 931 specifically notes that a proposed terrorist listing can be made on the basis of third-party information, not just EU member state information: “Persons groups and entities can be added to the list on the basis of proposals submitted by member states based on a decision by a competent authority of a member state or a third country.” In fact, when listings are made on the basis of information from a non-EU member state, it is specifically the High Representative for Foreign Affairs and Security Policy—that is, Josep Borrell—who is supposed to initiate the designation proposal, according to CP 931 guidelines.
As several European officials have recently noted, the European Court of Justice specifically clarified that investigations or convictions from outside the EU can also be used to justify adding a group to the EU’s terror list. On this basis, investigations and prosecutions—and in some cases designations by other countries or multilateral bodies—could qualify as well. The U.S. Justice Department has conducted such investigations that could help build the basis for EU designation, as I discuss below.
At the end of the day, while a proposal to designate an entity is made to the European Council, the final decision is up to the 27 EU member states, which must vote unanimously in favor of adopting a designation. (Unanimity is the voting rule with the European Council on all foreign policy matters, whereas other matters, like trade policy, require only a qualified majority.) In practice, the European Council is reluctant to initiate any processes requiring unanimous agreement if it is not certain that all member states are willing to discuss it. In other words, the absence of a debate over something like designating the IRGC as a terrorist group is itself a symptom of the lack of unity among member states on the issue.
Evidentiary Basis for Designating the IRGC
In addition to there being no structural impediments to designating the IRGC as a terrorist group, there is significant evidentiary basis for such a designation under the common position. CP 931 defines “terrorist acts” and offers a list of examples, such as “attacks upon a person’s life which may cause death,” kidnapping or hostage taking, the “manufacture, possession, acquisition, transport, support or use” of weapons or explosives, and participating in the activities of a terrorist group. To be considered terrorist acts, they must be carried out with the aim of “seriously intimidating a population” or “unduly compelling a government or international organization to perform or abstain from performing any act.” A terrorist act could even be one aimed at “seriously destabilizing or destroying the fundamental political, constitutional, economic or social structures” of a country or an international organization.
By any measure, the IRGC is actively engaged in exactly these types of activities, both in Europe and beyond. According to a data set maintained by this author of Iranian foreign operations (including assassination, abduction, and surveillance plots), over just the past five years Iran has instigated at least 33 plots in Europe. These include plots in EU member states like Cyprus, Denmark, France, Germany, and the Netherlands. Other plots elsewhere in Europe occurred in Albania, Sweden, and the U.K. In each of these cases, investigations have been opened, and in many cases judicial authorities are engaged in active prosecutions targeting IRGC and other Iranian operatives. Consider, for example, the assassination plot targeting Bernard-Henri Levy in France; the plot targeting an Iranian dissident rally in Paris in 2018; plots surveilling and targeting Iranian dissidents in Albania, the Netherlands, Germany, Sweden, Scotland, and the U.K.; and attacks on German synagogues in North Rhine-Westphalia. According to a recent report issued by Austria’s Federal Office for the Protection of the Constitution and Counterterrorism, Iranian intelligence services—including the IRGC’s intelligence organization and its Quds Force—have spread in the country.
Beyond Europe, the latest evidence of Iranian terrorist plotting abroad came out last Friday, when senior U.S. officials gathered for a press conference to reveal the indictment and arrest of three criminals charged with the attempted murder-for-hire of an American-Iranian journalist in New York. The three were part of an organized criminal organization based in Eastern Europe with ties to Iran. The leader of the group, who was based in Iran, was enlisted by Iranian agents in 2022 to assassinate the victim in the United States. Speaking at the press conference, FBI Director Christopher Wray underscored that this was an Iranian terrorist plot: “The conduct charged shows how far Iranian actors are willing to go to silence critics, even attempting to assassinate a U.S. citizen on American soil.”
In August, the U.S. Department of Justice indicted IRGC personnel behind assassination plots targeting former senior U.S. government officials in the United States, among others. In 2019, two Iranian operatives pleaded guilty to charges stemming from their surveillance activities targeting Iranian dissidents and Jewish targets in the United States. More recently, the IRGC agreed to pay an assassin $300,000 to kill John Bolton and offered $1 million for the assassination of former Secretary of State Mike Pompeo, according to the FBI affidavit underpinning the Department of Justice criminal complaint against IRGC officer Shahram Poursafi. Poursafi is wanted by the FBI and is accused of the precise crimes the EU considers terrorist acts, including murder-for-hire and attempting to provide support for terrorist acts. In other cases, U.S. officials indicted four Iranian operatives on kidnapping charges after they plotted to kidnap Masih Alinejad, an American citizen of Iranian descent, from New York and forcibly remove her to Iran, via Venezuela, “where the victim’s fate would have been uncertain at best,” as the U.S. attorney for the Southern District of New York put it. According to U.S. authorities, the Iranian official behind this plot directs a broader network of Iranian operatives actively targeting victims in other countries, including Canada, the U.K., and the United Arab Emirates. Several months later, police arrested a man with a loaded assault rifle near Alinejad’s home. Moments earlier, he stood on her front porch taking photos or video with his phone, footage of which was captured on her door camera. This man, along with two others, are the defendants charged with murder-for-hire last Friday.
Both in the U.K. and Canada, law enforcement officials have reached out to members of the Iranian expatriate community warning them that Iranian agents may try to target them. Canadian Security Intelligence Service agents have warned Canadian citizens of Iranian descent that “Iran had developed a list of people living abroad whom it deemed a threat to the regime” and encouraged them to take precautions. The British government filed an Interpol notice stating that IRGC operatives were involved in planning “lethal operations against Iranian dissidents in the UK in 2020.” According to the head of Britain’s MI5 security service, there were at least 10 Iranian kidnap or assassination plots targeting British or U.K.-based persons from January to November 2022. In other words, there is no shortage of European and other credible investigations, prosecutions, and even convictions related to IRGC terrorism around the world and in Europe.
Not all national administrative designations, however, would qualify as a “judicial or equivalent competent authority” based on recent legal precedent. A Nov. 30, 2022, judgment issued by the Court of First Instance of the European Court of Justice in PKK v. Council of the EU ruled that U.S. administrative designation decisions are not admissible because they do not sufficiently guarantee the applicant’s rights of defense. This means that the EU could not rely on the 2019 U.S. designation of the IRGC as a terrorist group. However, the ruling did allow for the use of actions taken by administrative (as opposed to judicial) authorities when they are “vested in national law” with restrictive powers such as designations, noting the applicability of the U.K. home secretary as a “competent authority.” It remains an open question whether the EU could rely on Canada’s 2012 designation of the IRGC’s Quds Force, its 2022 announcement listing the IRGC as inadmissible to Canada for engaging in terrorism and human rights abuses, or the Saudi Arabian and Bahraini decisions to list the IRGC as a terrorist group.
The EU should be able to rely on its own designation decisions targeting the IRGC for terrorism-related activities, such as the 2020 measure targeting Iran for its activities in Syria. That measure included Iran’s Quds Force, which the EU defined as “a specialist arm of the IRGC.” That designation noted that the IRGC’s Quds Force helps the Syrian regime terrorize its own people. The EU has a long record of designating IRGC officials, in part to prevent terrorist financing. A 2012 EU measure specifically highlighted the IRGC Quds Force as being “responsible for operations outside Iran” and as Tehran’s principal tool “for special operations and support to terrorist groups.”
Benefits of Designating the IRGC
An EU designation would make it a criminal offense to belong to the IRGC, support the group, attend its meetings, or display its logo in public. Beyond criminalizing such activities, an EU designation would subject the IRGC to “enhanced measures relating to police and judicial cooperation in criminal matters” and make any funds the group maintains in Europe subject to an asset freeze. In addition, no funds or economic resources could be made available to any part of the group, directly or indirectly. The resolution adopted by the European Parliament also called for an expansion of travel sanctions to target all Iranian leadership.
Designating the IRGC would do more than just serve as a messaging campaign. Iran engages in activities the EU defines as “terrorist acts”—even at times of sensitive negotiations and even when it may be exposed as the culprit—because Iranian officials believe they can do so at little to no cost. As evidenced by its continuous pursuit of violent activity, Iran assesses the potential benefits of such actions to be high, whereas the costs of getting caught are low. If the EU were to seriously hold Iran to account for the acts of terrorism it has been carrying out over recent years and months, both in Europe and beyond, Iranian leaders would be forced to reconsider their cost-benefit analysis and the utility of such aggressive and malign policies as plotting to murder and abduct people on the streets of Europe.
The IRGC should be designated as a terrorist organization only on the basis of the terrorist activities it carries out and the material support it provides to its terrorist proxies. Iran’s grave human rights abuses and provision of drones used by Russia to target Ukraine are better addressed using sanctions authorities specific to human rights or other applicable violations.
And there are serious issues to debate when it comes to such a designation. As the EU debates designating the IRGC, a parallel discussion has been taking place in the U.K., which, while no longer an EU member state, plans to proscribe the IRGC on terrorism grounds after debate in the U.K. Parliament also demonstrated broad, cross-party support for proscribing the IRGC. In the U.K., other policy issues came up for debate, such as whether such an action would undermine existing U.K. sanctions authorities. The U.K. government’s Independent Reviewer of Terrorism Legislation posted a legal note cautioning against proscribing the IRGC for technical legal rather than policy reasons. In the end, it appears the U.K. government will nonetheless designate the IRGC.
Some may not want to designate the IRGC as a terrorist organization for fear of Iranian retaliatory sanctions or in the interest of keeping open prospects for renewed negotiations over the Iran nuclear deal. Those are legitimate policy debates. But as a matter of legal standards, the EU has more than enough authority and admissible evidence to designate the IRGC.
EU foreign policy chief Borrell is not wrong when he says that the EU cannot designate the IRGC just on the basis of not liking the organization. But he is patently wrong when he asserts that a designation cannot take place until a court in an EU member state issues a judicial ruling against the group. There is ample evidence admissible within the CP 931 framework of the IRGC engaging in what the EU defines as “terrorist acts,” both in Europe and around the world.
Matthew Levitt is the Fromer-Wexler Fellow and director of the Reinhard Program on Counterterrorism and Intelligence at The Washington Institute. This article was originally published on the Lawfare website.