Allegations about WLF: International Law and Claims of Sovereignty

Spurned by the power of an authoritarian state, Iranian activists and protestors have turned to international law to buoy their interests and objectives. The EU, America, and their allies have largely responded positively to the calls to engage international law as well as individual country measures, such as the imposition of sanctions. International lawyers and human rights advocates have condemned the Islamic Republic and supported calls for an independent fact-finding mission. These actions by the international community are both an emotional and professional response to the serious and criminal actions of the Islamic Republic. Contrary to the school of realism's focus on material interests and power as well as claims of international law's irrelevance, these international responeshelp support the importance of international law and may buoy claims of its medium- to long-term efficacy, through a complex transnational legal process of changing states’ policies.Footnote ⁴

Iran regards international condemnations as “politics,” orchestrated by its “enemies,” and the WLF uprising as a “foreign-backed riot” planned and executed by enemies of the Islamic Republic.Footnote ⁵ That the uprising has backing from various quarters remains undisputed: in newspapers and on TVs around the world, supporters have publicly joined marches, led protests, made speeches, appeared on media, fundraised, held conferences, and more. Iran has proffered a standard response to political unrest.Footnote ⁶ Rather than acknowledge the existing demands for freedom and accountability, the Islamic Republic sees the uprising as another front in its ongoing gray war with the US and the West.Footnote ⁷ In turn, Tehran's actions have not changed much over the past twelve months: even though Supreme Leader `Ali Khameini offered amnesty and reduced sentences for “tens of thousands” in February 2023, legal warnings went to women by text in April, patrols to enforce the mandatory hijab returned to the streets during the summer, and reports continue to circulate about laws denying women access to education and medical care if they are dressed “inappropriately” or without hijab, as do reports of forced closures of businesses that allow women without head coverings.Footnote ⁸

Tehran's assertion about foreign agents and attempts at regime change imply that the WLF leadership, supported by at least one Western government according to the Islamic Republic, is committing an international crime: violating state sovereignty. As a core principle and basis of international law, sovereignty signifies independence in relations between states, and independence in a geographical territory is the right to exercise in that territory, to the exclusion of any other state, the functions and power of a state.Footnote ⁹ Violations of sovereignty by another state are not limited to physical invasion, “boots on the ground,” or other conventional interventions. Violations of state sovereignty by another state (or states) include using information and communication technology.Footnote ¹⁰ Violations of sovereignty constitute an “internationally wrongful act” if there is (1) a breach of a legal obligation owed by one state to another under international law, and (2) attribution of the act to the former.Footnote ¹¹

The allegations about protestors and external actors by the Islamic Republic strive to shift the blame and move the narrative away from disproportionate violence and human rights violations to claims of defense against violations of sovereignty. In a clever maneuver pivoting on the history of US intervention and current law and politcs, Tehran provides a dual-pronged defense: the Islamic Republic asserts (1) sovereignty over its territory (defense of property); and (2) sovereignty to defend (defense of self and others).Footnote ¹² This is in response to at least two international wrongful actions: (1) disrespecting the sovereignty of another state, and (2) intervening in the internal affairs of another state.Footnote ¹³ In other words, the Islamic Republic posits a justification defense whereby the use of force may constitute a legitimate act to prevent or redress harm that is being, will imminently be, or has been committed by external actors and domestic collaborators. Defense is, after all, a means to thwart, prevent, or redress injury to the sovereign.

The notion of defense is so central the law codifies that “society must be defended.” Legal structures around the world permit the use of violence to form, maintain, and perpetuate the state and its government. Governments have the right (and are often required by founding state documents) to defend themselves against “all enemies, foreign and domestic.” This social contract breaks down, however, when state violence becomes disproportionate, and segments of society refuse, reject, or otherwise no longer agree to the control techniques, security mechanisms, or even the ideological foundation of governance. In this sense, the WLF uprising and the support it engendered in the first months appeared to threaten the core of the state: protestors called for the death of the Supreme Leader, an end to the Islamic Republic, and the creation of a democratic state. Although turnouts did not mobilize diverse enough sectors of society to pose an imminent danger or bring the silent majority to the streets, the regime nevertheless needed to deflect attention away from its failures and the loud, if not wide, rejection of its principles.Footnote ¹⁴ The Islamic Republic invokes aspects of international law to make criminal allegations against dissenters. In this way, the state complicates the decision-making of international organizations.Footnote ¹⁵ This partly explains why the EUC has designated the Republican Guard's Quds Force a terrorist organization for its activities inside Syria but not for its alleged crimes committed inside Iran. In other words, the IRGC has a sovereign defensive claim inside Iran but not Syria.Footnote ¹⁶ Arguably for similar reasons, although for a different reason, the EUC (following actions by the UN Security Council) sanctioned the Revolutionary Guard for its role in nuclear proliferation.Footnote ¹⁷

The debate about designating the IRGC a terrorist entity reached a crescendo when, on January 18, 2022, the European Parliament overwhelmingly voted (598-9-31) in favor of doing so. Supporters of the vote have argued for the validity of this designation because of the Islamic Republic's provision of drones to Russia and its disproportionate use of violence against WLF protestors.Footnote ¹⁸ The European Parliament has no power to compel the EUC to follow suit. The latter instead decided on January 23, 2023 to list 18 individuals and 19 entities for human rights abuses, imposing travel bans and sanctions on them.Footnote ¹⁹ Josep Borrell, the EU foreign policy chief, explained the decision of the EUC, saying,

Prior to Borrell's statement, German Member of the European Parliament Hannah Neumann tweeted that any listing of the IRGC must be “legally waterproof.”Footnote ²¹ No court of an EU member state has made a terrorism decision on the IRGC, but multiple decisions have been made against the Islamic Republic, its Quds Force (as noted above), its officials, and individual Iranians.Footnote ²² In contrast to the EUC, the US, Saudi Arabia, Bahrain, and Israel have designated the IRGC a terrorist entity.Footnote ²³

The decision of the EUC has raised many questions. On one side, critics fault Borrell for stopping at nothing to reestablish some version of the Joint Comprehensive Plan of Action (JCPOA), or the nuclear deal. His statements on the issues do not help assuage critics. He insists,

Unsurprisingly, then, as the Europeans “continue engaging as much as possible in trying to revive this deal,” according to Borrel in the same statement, they are not moving forward on human rights. On the other side, others view the EUC as pandering to the Islamic Republic or acquiescing to its threats as a matter of political expediency and self-interest. For example, in one instance, the Iranian Foreign Ministry responded to the European Parliament vote by saying European countries had been warned that such a move would violate the UN Charter and is an attack on the security of the Islamic Republic of Iran, against which the government has “the necessary will to respond” and “impose more than this cost of bilateral relations.”Footnote ²⁵ In addition, multiple EU citizens remain jailed in Iran. In this way, in response to a possible terror designation, the Islamic Republic asserts that such an action is a violation of sovereignty, against which it is already making defensive claims for future actions it may take against those who voted for the designation and so knowingly voted to damage “bilateral relations.”

In the meantime, calls to designate the IRGC a terrorist organization have continued. Since January 2023, Iranians across the West have urged the EUC, the US Congress, and international entities to designate the IRGC a terrorist group.Footnote ²⁶ In March, Belgium's Iranian born parliamentarian stated somewhat optimistically that “obstacles” to the designation were being worked out.Footnote ²⁷ Yet the EUC has still taken no action against the IRGC. Instead, negotiations around Iran's nuclear program have gained traction, while Tehran has concluded a truce with Saudi Arabia, executed a hostage-trade deal with the US, and expanded its ties to Russia and China.Footnote ²⁸ All of this political activity appears to undercut the efficacy of international law, at least in the short term, and it begs new questions about whether the international community has abandoned the WLF uprising. What of the human rights violations about which many spoke so passionately in the first five months? Was Borrell, as the High Representative for Foreign Affairs and Security Policy, correct about the necessity of a court decision to designate an organization or entity a terrorist?

The EU Legal Structure to Designate a Terrorist

On its face, the question about whether Borrell's reasoning is legally correct appears simple: the EUC may list the IRGC as a terrorist entity without an EU member state's court decision.Footnote ²⁹ The foundational document is Common Position 931 (CP 931). As part of the response to 9/11, CP 931 enacted UN Security Council Resolution 1373. Resolution 1373, the basis of the EU's terror laws, requires member states to implement measures to “prevent and suppress the financing of terrorist acts” and calls on members 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's territory to “finance, plan, facilitate or commit terrorist acts against other states or their citizens.”

Because of Resolution 1373, the EUC produced CP 931. It does not limit the EUC by geography. Instead, the terror designations—legal decisions to categorize a person, organization, or entity as a terrorist—apply to those physically located within or outside EU territory. These designations have included Spain's separatist organization Basque Euskadi Ta Askatasuna (Basque Homeland and Liberty, otherwise known by its abbreviation ETA) as well as Hamas, al-Qaʿida, and Da'esh.

CP 931 provides a two-step mechanism to define terrorism. First, it defines a “terrorist act” to be an intentional act that, given its nature or context, may seriously damage a country or international organization and that is defined as an offense under national law.Footnote ³⁰ The EUC gives eight examples. They include the following:

1. 1. attacks upon a person's life that may cause death;

2. 2. attacks upon the physical integrity of a person;

3. 3. kidnapping or hostage taking; and

4. 4. the manufacture, possession, acquisition, transport, supply or use weapons, explosives, or of nuclear, biological, or chemical weapons.Footnote ³¹

The individuals and entities of the Islamic Republic have been accused of these actions by EU governments, parts of the US government, and international human rights organizations

The second step in the EUC determination categorizes an action terrorism if said act requires the perpetrator of the act in question have a specific intent. The act must intend to do one of the following:

1. 1. seriously intimidate a population;

2. 2. unduly compel a government or an international organization to perform or abstain from performing any act; or

3. 3. seriously destabilize or destroy the fundamental political, constitutional, economic, or social structures of a country or an international organization.

Again, the same organizations have also found that the individuals and entities of the Islamic Republic have taken actions with the intention to produce all of these effects. An EU court decision is not required as a first step or a step at all in the terror designation process as originally written.

Like many founding and early documents, the EU's terror designation text used general and sweeping language. Unsurprisingly, defendants challenged the original text to acquire fundamental and due process rights. Moreover, EU terrorism designation lists have been difficult to implement as ambiguities arise over fairness and clarity. The European Court decided on several landmark terror cases in the years after 9/11.

European Court of Justice Decisions

EU policymakers initially encountered problems that largely stemmed from evaluation, compliance, and efficacy issues. More specifically, questions arose over “appropriate review mechanisms” of the designation procedures, which became “trapped in a quandary” because proposals that would fulfill the due process requirements of international human rights law were “politically infeasible,” and those that may have gained support from the EUC contained “shortcomings as far as internationally guaranteed due process rights [were] concerned.”Footnote ³² Tensions between counterterrorism and human rights obligations arose: debate centered on the compelling duty of the state to protect the general interest of public security—defense of the sovereign, territory, and others—and the necessity to protect core human rights tenets. The judiciary helped resolve the “quandary” and debate.

Among its first decisions on terrorist designations, the EU General Court decided that they must be based on two factors.Footnote ³³ One, there must be “acts examined and confirmed” and, two, the examination or confirmation of the acts in question must be done by “competent authorities.”Footnote ³⁴ Core texts consistently use the phrase “competent authority.” The European Court of Justice (ECJ), as the final arbiter, explained that competent authorities must be “national” in nature and “within the meaning of the Common Position”; in other words, each member state determines its national competent authorities.Footnote ³⁵ This applies to each subject area: that is, there is a competent authority for security of network and information systems, for authorizing the use of medical devices, for examination of minerals, and so on.

What or who is a competent authority is the issue, because Borrell's statement indicates that an EU Member State court is the only competent authority. However, this is not accurate. In addition to the above criteria (in this and the prior sections), a potential designation must also fulfill five additional provisions, including the competent authority provision: (1) The use of precise information or materials (2) in the relevant file (3) indicating a “judicial or equivalent competent authority” (4) made a finding or decision (5) regarding the person, group, or entity in question.Footnote ³⁶

Here again the EU points out that a judicial authority, a court, is not required.Footnote ³⁷ Instead, an authority equivalent to a court may make a terror decision based on its area of expertise. Again, respective governments designate national authorities based on subject or functional expertise. This means that in lieu of a court decision, the US Department of Defense could be a nationally designated, competent authority regarding terrorist designations by the US. And, to be clear, the EUC has said multiple times: “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.”Footnote ³⁸ The courts agree that non-EU states may make terror designation recommendations.Footnote ³⁹ Because administrative decisions that do not impose criminal penalties may suffice for a terrorist designation, the EU courts have accepted decisions of home secretaries and ministries of foreign affairs as competent authorities.Footnote ⁴⁰ Nevertheless, the matter is not resolved.

The above analysis shows the inaccuracy of Borrell's statement about EU court decisions, yet the issue of fundamental rights returns. In some of its earlier cases, the General Court found that terror listings must be made based on “acts examined and confirmed” and “precise information.”Footnote ⁴¹ Sitting as the Grand Court, the ECJ established parameters to protect potential designees by procedurally ensuring their inclusion on the terror list did not arise because of rumors, innuendos, or bias of, in, or repeated by the press or the Internet, but rather on a “sufficiently solid factual basis.”Footnote ⁴² In addition, sitting as a Grand Chamber, the ECJ makes clear that designations and listings are to conform with “fundamental rights” because many third states are not bound by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and none of them is subject to the provisions of the Charter of Fundamental Rights of the European Union.Footnote ⁴³

This means that if the EUC wants to list a person, group, or entity based on the decision of a non-EU country, that country must fulfill certain criteria in its decision-making. These are as follows:

1. 1. The country must state the reasons for its decision(s) and finding(s).Footnote ⁴⁴

2. 2. Decisions and findings must be made in accord with the rights of defense and the right to effective judicial protection.

3. 3. The EUC must explain how it ascertained that the third country respected fundamental rights.Footnote ⁴⁵

Within the scope of the second requirement and returning to the issue of competent authorities, a nonmember state authority may be considered a competent authority if the EUC verifies that the nonmember state ensures protection of the rights of defense and the right to effective judicial protection “equivalent to that guaranteed at the EU level.” If evidence exists that the nonmember does not provide such protection, then the nonmember's decisions and findings do not equal that of a competent authority.Footnote ⁴⁶

US courts have dozens of decisions against the Islamic Republic dating back decades. However, only Secretary of State Mike Pompeo officially designated the IRGC a terrorist entity; he did so in 2019. Members of the US Congress as well as parliamentarians and activists across the West have encouraged the EUC to follow suit, arguing that this official US designation suffices to fulfill the Common Position provisions. A former FBI counterterrorism analyst and US Treasury Department deputy assistant secretary has published extensive information on the Iran's activities aimed at individuals, organizations, and governments abroad and encouraged the EUC to make the IRGC terror designation.Footnote ⁴⁷ Such encouragements do not adhere to the conditions and case law above.

Moreover, the EU court has specifically decided that the American decision to label a group a “Foreign Terrorist Organization” (FTO) cannot be considered a decision of a competent authority. The court has held this position on multiple occasions because US decisions lack the required legal safeguards on fundamental rights, the rights to defense and the rights to protection.Footnote ⁴⁸ In particular, the court held that the ability of US authorities to make FTO decisions without an obligation to give a statement of reasons or even to publish the decision violated fundamental rights provided for by the EU.Footnote ⁴⁹ Therefore, numerous US administrative decisions that appear to fulfill the “competent authority” of the “third country” requirements are not sufficient to designate the IRGC a terrorist group or entity within the European Union.