In Search of a Due Process ofof aa DDueue PProcessrocess ProcessProcess InIn SSearchearch ooff aa D Dueue P Processrocess SearchSearch ooff aa DDueue P Processrocess This study examines current listing and delisting procedures a DDueue PofProcess the Europeanro Unionc (EU),e both swith regards to autonomousInI n SSearchearch ooff aa D Dueue P Pro-ro- sanctions measures and to the implementation of United Nations cess InInSecurity CouncilSSearch (UNSC)ea actions.r Thec aim ish to identify orecentof f aa D Dueue P Processroc legal as well as administrative concerns relating to these practices. ess While much attention has been devoted to UN targeted sanctions, SearchSearclessh attention o hasof beenf given a toa recent EU D practicesDueu in thise area. P Processrocess InI n SSearchearch ooff This study looks at the most recent developments to strengthen In Search a DDueuethe sanctionsPProcessr tool oon a Europeanc elevel. 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SearchSearch ooff aa DDueue P Processroc–ess InI n SSearchearch ooff In addition to an overview of current EU sanctions practices, this Listing and Delisting Practices a DDueueresearch projectPProcess hasr alsoo createdc an overviewe ofs nationals practices InI n SSearchea rof thec Europeanh oof Unionf aa D Dueue P Pro-ro- of sanctions in 11 countries of the European Union (“National cessSanctions InI nPractices inS Search11 Europeane Countries”).ar This additional of a Due Process part, dealing more exclusively with national practicesc in Europe,h is of a Due Process InIn published separately online at: www.smartsanctions.se. The online SearchSearoverviewc shouldh be considered oof fa work ina progress.a DDueue P Processrocess InI n SSearchearch ooff a DDueue PProcessrocess InI n SSearchearch ooff aa D Dueue P Pro-ro- cess InIn SSearchearch ooff aa D Dueue P Processrocess InIn Published by Uppsala University, Uppsala (Sweden) Department of Peace and Confl ict Research, Uppsala University (Sweden). SearchSeaP.O.Boxr 514,c SE-751 20h ooff aa DDueue P Processrocess InI n SSearchearch ooff a DDuewww.peace.uu.seue PProcessrocess InI n SSearchearch ooff aa D Dueue P Pro-ro- cess InIn SSearchearch ooff aa D Dueue P Processrocess SearchSearch ooff ISBN:aa 978-91-506-2115-0 DDueue P ProcessrocessMikael InI n Eriksson SSearche arch ooff a DDueue PProcessrocess InI n SSearcheDepartmentarc of hPeace and o Confloff ict Research aa D Dueue P Pro-ro- InIn SSearchearch ooff aa D Dueue P Processrocess SearchSearch ooff aa DDueue P Processrocess InIUppsala n University SSearchearch ooff InIn SSearchearch ooff aa D Dueue P Pro-ro- InIn SSearchearch ooff aa D Dueue P Processrocess In Search of a Due Process – Listing and Delisting Practices of the European Union Copyright: Mikael Eriksson Mikael Eriksson Published by Uppsala University, Uppsala, Sweden (2009) Design and typesetting by Krassimir Kolev Printed by Universitetstryckeriet, Uppsala Distributed by the Department of Peace and Conflict Research, Uppsala University Website: www.peace.uu.se and www smartsanctions.se ISBN: 978-91-506-2115-0 Table af Contents Focus of the Study 6 Background 7 Targeted Sanctions Adopted in the European Political Framework 12 Listing and Delisting Problems in EU and UN Country-Based and Terrorism Sanctions Regimes 17 EU Counterterrorism Measures: Listing and Delisting Challenges 22 Statement of Reasons 29 Notification 31 Review Process 34 Delisting 36 Problems Related To Listing and Delisting 38 APPENDIX 1. Pending Cases 40 APPENDIX 2. Selective Chronology of L’Organisation des Moudjahiddines du peuple iranien (OMPI) / The People’s Mujahedin of Iran (PMOI, MEK, MKO) 42 Selected References 44 8 In Search of a Due Process In Search of a Due Process 9 Acknowledgments About the Author This study was originally commissioned by the Sanctions and Mikael Eriksson holds a PhD in Political Science from the Eu- Security Center at the Fourth Freedom Forum and the Kroc ropean University Institute. He is currently a Research Asso- Institute for International Peace Studies, University of Notre ciate of the Department of Peace and Conflict Research, Upp- Dame. Financial assistance was also provided by the Swedish sala University and the Swedish Defense Research Agency, Research Council (“Vetenskapsrådet”). The author would like Sweden. He was a participant to the Stockholm Process on the to thank a number of reviewers of earlier drafts of this study, Implementation of Targeted sanctions in 2002 and has since in particular Dr. Monika Heupel, Dr. Gabriele Porretto and then been involved in a number of international sanctions re- Professor Iain Cameron. Moreover, the author would like to form efforts. He has written extensively on issues relating to thank a number of officials at the European Commission and EU and UN practices of targeted sanctions. Any communica- the Council, as well the Swedish Ministry for Foreign Affairs tions should be directed to the author: mikael.eriksson@pcr. for providing support and excellent feedback. uu.se 10 In Search of a Due Process In Search of a Due Process 11 Focus of the Study Background This study’s aim is to review the current listing and delist- In the mid-1990s, a growing norm against comprehensive ing procedures of the European Union (EU), both with regard sanctions began to take root in public debate. The debate was to autonomous sanctions measures and to the implementation commonly referred to as the ‘humanitarianism’ debate and of United Nations Security Council (UNSC) actions. It also originated partly in the criticism voiced by organizations like seeks to identify recent improvements with regard to these the Catholic Church and the United Nations Children’s Fund procedures. The discussion follows a broader debate on the (UNICEF) concerning the negative effects of comprehensive rationale, legitimacy and effectiveness of targeted sanctions as UN sanctions. Criticism followed a number of dire side ef- a tool of economic and political statecraft.1 The study begins fects of sanctions, which at the time had increasingly become with a general introduction outlining the shift to targeted sanc- socially visible in countries such as in Haiti and Cuba. The tions and the problems that follows with this practice. There- UN sanctions imposed on Iraq (August 1990- May 2003) also after, follows a discussion on recent improvements made by contributed significantly to this sanctions uproar. Another the European Union to improve due process procedures.2 explanation for the increase of criticism was the launch of a number of studies by the World Health Organisations (WHO) A note for the reader: This study is a shortened version of and the United Nations Children’s Fund (UNICEF) regard- longer paper that originally contained two distinct parts: 1. ing the negative impact of comprehensive sanctions on Iraq. EU listing and delisting practices and 2. sanctions practices of Thus, in the latter half of the 1990s, this debate and position- eleven European states. In this newer version however, I have ing against UN comprehensive sanctions would include sev- decided to concentrate on EU listing and delisting practices eral hundred NGOs, businesses, scholars, and practitioners of only, while the second part ‘National Sanctions Practices in 11 which most had a humanitarian aid and human rights inter- European Countries: Work in Progress’ on national practices est. is published online at: www.smartsanctcions.se. Following the widespread criticism of Iraqi sanctions, policy-makers, both in the UN and in many western capitals, 1 For a comprehensive summary of the sanctions literature, see Eriksson 2009. thus came to look more specifically into new ways to improve 2 Although this study takes a ‘legal’ approach when examining listing and delisting problems the sanctions tool in search of a restoration of the sanctions of the European Union, the study should however be read more from a political science per- spective. By this I mean that the overall aim, rather than providing legal solutions to listing policy tool. For instance, in response to the humanitarian and delisting practices, is to highlight political as well as administrative problems current sanctions management and the consequences this have for the sanctions sending body. impact of sanctions in Iraq, the UN ambassadors of China, 12 In Search of a Due Process In Search of a Due Process 13 France, the Russian federation, the United Kingdom and the Bonn-Berlin Process considered various ways of designing United States wrote to the United Nations Security Council, targeted sanctions, the Stockholm Process looked into the dif- stating that sanctions “should be directed to minimize unin- ficult aspect of implementation. Not only did these processes tended adverse side effects of sanctions on the most vulnerable push for increasing practice, but also prompted a number of segments of targeted countries”. While initially having been academic studies on the subject. quite obdurate regarding the need to enforce maximum pres- This shift from comprehensive to targeted sanctions sure on Iraq and the sitting President Saddam Hussein, even during the 1990s followed a general trend in thinking about the most pro-sanctions enforcer, the US, began to change foot sanctions. The idea was to increase pressure on specific poli- following the wide criticism of the comprehensive sanctions. cy-makers whilst avoiding application of measures that would In November 2001, both US and UK begun to lift certain ex- have negative side effects for those not responsible for un- port prohibitions to Iraq. France, for its part, campaigned for a wanted policies (i.e. limiting pressure on the population of complete ending of sanctions.