EUobserver opinion: Rule of law has to be applied to the European sanctions regime

Restrictive measures, primarily assuming the form of sanctions against natural persons, are a central part of the EU’s response to Russia’s annexation in Crimea and its ongoing support for separatists in the east of Ukraine.

The list of individuals identified as having played a significant or even peripheral role in the destabilisation of Ukraine was first created a year ago and has since expanded considerably.

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  "It is time for a rethink of the rationale behind EU sanctions" (Photo: German presidency 2007)

Sanctions typically result in freezing an individual’s assets and a ban on entering the EU. They can be a valuable lever against specified natural and legal persons against whom a valid prima facie case of criminal activity or wrongdoing exists, and where such measures would support an EU foreign policy goal: for example changing the behaviour of a third country's government.

And when directed against weak countries, sanctions can sometimes be a potent weapon, forcing policy reversals and affecting an elite’s ability for political and economic manoeuvre - though not, as yet, in Moscow’s case.

Sanctions are legal in nature - they require the passing of EU legislation - but they are entirely political in character. As such, they should be subject to much greater scrutiny and oversight than they currently are - not only for individuals, but for organisations too.

Kafkaesque

As a member of the European Parliament, I closey followed the listing by most Western governments of the main democratic opposition in Iran, the People’s Mujaheddin of Iran (PMOI).

It became clear that the paper-thin and loosely-defined defence ‘guarantees’ provided by EU law are abused in a Kafkaesque way.

In many ways the methodology is redolent of the Catholic Inquisition in centuries past: those accused are given just the vaguest reasons for their listing, and can only counter them blindly.

Furthermore, in PMOI’s case it was established beyond reasonable doubt that Western governments and their bureaucracies imposed this terrorist designation at the behest of the Iranian authorities. And this although the US government, among others, simultaneously acknowledged that Tehran was the number one international sponsor of terrorism.

In other words, legislation conceived to deter terrorism became a major tool for promoting terrorism.

There are no established means by which organisations and individuals subject to restrictive measures can make a political appeal in person to officials in the Council, representing member states.

The Council’s methods of assessment are opaque and subject to the innate conservatism of a bureaucracy in which it is counter-intuitive to take politically controversial decisions.

Indeed, political correctness or cowardice tends to triumph over an objective assessment of evidence, which risks allowing terrorist groups to avoid sanctions and tends to prevent individuals from shaking off sanctions.

Sunset clause

Of course, it is possible for sanctioned people and organisations to take their case to the European Court of Justice (ECJ), and many do, but the court is overloaded and sometimes takes years to rule.

At the very least the court should establish a specialist sub-tribunal to examine such cases speedily. It would also make sense for all EU sanctions to contain a ‘sunset’ clause, under which they cannot be renewed unless the Council publicly seeks the ECJ’s permission to do so.

In the aftermath of the Arab Spring, sanctions were put in place for an apparent purpose: to support the democratic transition of those countries. These sanctions are still in place today. However, in the context of the major political developments in the region, such sanctions are no longer understandable.

While the Jihadist threat has for the time being been effectively contained in Egypt, it looms large in Libya. Yet European sanction lists appear not to have followed developments on the ground.

In all but the most egregious cases, sanctions must be seen as emergency provisional tools, and never as normal policy instruments. They have to be imposed and administered openly, not nebulously and inconsistently as is the case now.

They should be subject to proper supervision, and applicable for much shorter periods than the current minimum of one year.

Sanctions tend to offer the EU an easy way out, and the possibility to skirt uncomfortable political issues, sometimes for years.

That is contrary to the EU's own values and purpose, and it is time for a rethink on their rationale and implementation.

Paulo Casaca is executive director of the Alliance to Renew Cooperation among Humankind and served as an MEP for Portugal from 1999-2009