Margulies, Peter

English

HELIN Digital Commons

Terrorist Sanctions: The Clash in US and EU Approaches

DOCS@RWU

Roger Williams UniversityDOCS@RWULaw Faculty Scholarship Law Faculty Scholarship2-17-2016Terrorist Sanctions: The Clash in US and EUApproachesPeter MarguliesRoger Williams University School of LawFollow this and additional works at: https://docs.rwu.edu/law_fac_fsPart of the European Law Commons, Military, War, and Peace Commons, and the NationalSecurity Law CommonsThis Article is brought to you for free and open access by the Law Faculty Scholarship at DOCS@RWU. It has been accepted for inclusion in LawFaculty Scholarship by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationPeter Margulies, Terrorist Sanctions: The Clash in US and EU Approaches, Lawfare (Feb. 17, 2016, 7:31 AM),https://www.lawfareblog.com/terrorist-sanctions-clash-us-and-eu-approachesOMPHALOSTerrorist Sanctions: The Clash in US and EU ApproachesBy Peter Margulies  Wednesday, February 17, 2016, 7:31 AMImposing sanctions on terrorist groups has revealed pathologies on both sides of the Atlantic. In the US, as David Phillips and Kelly Berkellrecently noted, both politics and bureaucratic inertia make lists too “sticky,” hindering the removal of groups when circumstances change.Conversely, in the EU, inertia and the rigid approach of the European Court of Justice (CJEU) hinder needed efforts to impose sanctions andmake them stick. The PKK is perhaps the poster child for the US tendency, while Hezbollah illustrates the equal and opposite impulse in theEU.In the US, there are asymmetric political incentives for listing and delisting terrorist groups. Listing allows members of Congress to burnishtheir anti-terror credentials. Contrast the possible delisting of a group like the PKK—which has arguably played a constructive role inmobilizing Kurds to ½ght ISIS—and note that urging delisting has only modest political bene½ts and substantial downside risk. There arefew Kurdish voters in the US, and a legislator who urges delisting risks being tarred as “soft on terror” during the next primary. PresidentObama’s nuclear deal with Iran, which included lifting some sanctions on Iran, escaped this dynamic only because it did not requirelegislative authorization. Legislators who seek sanctions are typically sincere and in many cases there is ample reason to impose moresanctions, for example against Hezbollah, as I’ll discuss below. But when political incentives all skew in one direction, a deliberativedialogue becomes dif½cult.Bureaucrats too have their own incentives to keep the terrorist sanctions list “sticky.” An of½cial who sticks his or her neck out to remove adesignation risks losing an essential part of his anatomy if a group back-slides into terrorist tactics. The safest move is to take cover in thestatus quo—a familiar bureaucratic refuge.The dif½culties inherent in the political and bureaucratic dynamics suggest that the judiciary should be less deferential. The DC Circuitperformed this function well in the People’s Mojahedin (PMOI or MEK) litigation, prodding the executive branch to make additional ½ndingson the anti-Iranian group to justify its designation. The PMOI’s anti-Iran stance also provided some political cover for proponents ofdelisting; perhaps the PKK’s anti-ISIS stance can provide a comparable umbrella.That brings us to the EU’s puzzling reticence on sanctions for Hezbollah. As Gil Avriel, legal advisor to Israel’s National Security Council,recently pointed out in the Harvard National Security Journal, Hezbollah is a substantial threat. Hezbollah’s adverse impact has only grownas it expands its power in Lebanon, abets the Assad regime’s atrocities in Syria, and deploys more sophisticated missiles from Iran. While theUS has designated Hezbollah as a terrorist organization for years, the EU elected to only list Hezbollah’s military wing after the group blewup a bus carrying Israeli tourists in Bulgaria in 2012. The EU has declined, however, to designate Hezbollah as a whole as a terroristorganization, asserting that this move would destabilize Lebanon. Unfortunately, the EU’s reluctance to designate Hezbollah as a whole ignores the realities on the ground. For all practical purposes,Hezbollah’s formidable infrastructure of violence has supplanted Lebanon’s nominal military. Both Avriel, and Ben Wittes and Gabby intheir book, The Future of Violence (p. 116) note that, in many respects, Hezbollah embodies the worst of both worlds: state and non-state.This intersection of violence was evident on a December trip to Israel—which Carrie Cordero discussed in this post on ISIS in Sinai—whichincluded a visit to Israel’s tense northern border. Hezbollah is able to project force like a state, but its cunning placement of militaryhardware in civilian neighborhoods gives Hezbollah cover from attack—and more closely resembles the behavior of similar non-state groupssuch as Hamas in Gaza. The EU failure to impose sanctions on Hezbollah as a whole ignores that money is fungible and therefore thepolitical wing of the group is able to subsidize the military wing, rendering the EU’s current sanctions toothless.The failure of the EU policy is best illustrated by Hezbollah’s operations in Syria. The sanctions did not temper the group’s operations inSyria; instead the killing in Syria has continued. Positive movement—to the extent there has been any—has stemmed not from sanctions butfrom talks between US, Russia, and Iran. True, one could argue that toughening sanctions on Hezbollah might reduce Iran’s efforts to ½nd apeaceful solution to the Syrian con¾ict. And negotiations about Syria are certainly fragile. However, the negotiations will be ineffective ifthey do not address the civilian carnage that Hezbollah and others have enabled. Viewed in this light, the EU’s reluctance to targetHezbollah is a Faustian bargain—the deal with the devil is probably best viewed as a cautionary tale, not an agenda for futureaccommodations with terrorist groups.Omphalos: Middle East Con»ict in PerspectiveFor its part, the CJEU has further tied down counterterrorism of½cials. In a 2013 decision, Kadi v. Council, the CJEU struck down on dueprocess grounds the EU’s implementation of UN Security Council sanctions against terrorist groups. The CJEU, which is based inLuxembourg, discounted the Security Council’s naming of an ombudsperson who had been effective in persuading the Security Council todelist groups when the evidence pointed in that direction. (See my critique of Kadi here.) According to the CJEU, only a formal due processmodel would suf½ce. The court took this formalist stance despite the ombudsperson’s success, and the risk that a more formal process woulddisclose data about intelligence sources and methods, thereby inhibiting international cooperation in the sanctions regime.(Incidentally, an ombudsperson also ½gures in the new EU-US Privacy Shield data transfer agreement that replaces the Safe Harborframework struck down by the CJEU in Schrems. According to published reports, the US State Department will appoint an ombudsperson torespond to EU residents’ complaints about wrongful US surveillance. The court’s lack of deference to the UN sanctions regime could signalperil for the new agreement. The Privacy Shield ombudsperson’s review will have to be both robust and independent to have a chance atprevailing at the CJEU.)In sum, listing terrorist groups has deepened pathologies on both sides of the Atlantic. Perhaps the US and the EU can engage in bettercommunication in the future, and develop a set of best practices that will heighten incentives for groups like the PKK to emerge from thesanctions regime, while confronting bad actors such as Hezbollah. That would be a welcome step, but one that would entail tamping downpolitics, wishful thinking, and doctrinal rigidity in Washington, Brussels, and Luxembourg.Topics: OmphalosTags: Hezbollah, PKK, SanctionsPeter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, NationalSecurity Law and Professional Responsibility. He is the author of Law’s Detour: Justice Displaced in the BushAdministration (New York: NYU Press, 2010).

https://docs.rwu.edu/cgi/viewcontent.cgi?article=1202&amp;context=law_fac_fs

Terrorist Sanctions: The Clash in US and EU Approaches

Abstract

Similar works

Full text

Available Versions

HELIN Digital Commons

HELIN Digital Commons

DOCS@RWU