The EU Council of Ministers – Criminals or just sadly incompetent?

After following the case of the EU’s terrorist listing of the Iranian opposition group People’s Mojahedin Organization of Iran (PMOI) during 2007 and 2008, I have come to some very discouraging conclusions. At first I found it difficult to believe that EU decision making could be so deeply flawed, but after a while so many facts gathered up all pointing in the same direction that there was no longer any doubt. It is a sad story to tell, but way too important to keep quiet about.

The facts of the case only warrant one out of two conclusions: the members of the EU Council of Ministers are either knowingly breaking the law, or they are amazingly incompetent.

The most important facts of the case are in the court judgments. The following five judgments by European courts all dictate that the terror listing of the PMOI is unlawful:

– The Court of First Instance of the European Communities, judgment of 12 December 2006.

– The UK Proscribed Organisations Appeal Commission, judgment of 30 November 2007.

– The UK Court of Appeal, judgment of 7 May 2008.

– The Court of First Instance of the European Communities, judgment of 23 October 2008.

– The Court of First Instance of the European Communities, judgment of 4 December 2008.

All of the above court rulings are freely available from the web sites of the respective courts. I recommend to anyone interested in the PMOI case to read the judgments. It takes a few hours of reading but it is well worth the effort, you will learn a lot. If you have trouble finding the judgments, feel free to contact me and I will direct you to the correct links. All five judgments are available in English.

In the following I will briefly explain the central points of each court ruling and what the EU Council of Ministers did in response to those rulings. For simplicity the abbreviations CFI (Court of First Instance) and POAC (Proscribed Organisations Appeal Commission) are used. The EU Council of Ministers is simply written as “the Council”.

First, in December 2006 the CFI annulled the Council’s decision to keep the PMOI on the terror list. The court stated that the PMOI had not been given any information about any accusations against them. According to the CFI, the Council was required by law to inform the PMOI of the grounds for keeping them on the list.

Even though the court had annulled the listing decision, the Council maintained the PMOI on the list. In response to the court ruling, the Council said they would provide the required information to the PMOI and that it then would be justified to keep the PMOI on the list.

There is a lot to be said about the documents that the Council sent to the PMOI during 2007 as grounds for keeping the PMOI on the list. These documents seem to be far from relevant. For example, the Council seemed to think that an extract of a US State Department terror list dated 1997 was enough grounds for keeping the PMOI on the EU terror list in 2007. However, let us not dwell on such things for too long. In this story, there are bigger fish to fry.

The next court ruling regarding the PMOI was the POAC judgment in November 2007. The POAC is a special UK court created for the sole purpose of giving blacklisted organizations a means of clearing their name. The PMOI did so successfully through the November 2007 judgment. Actually, the POAC went as far as saying the terror listing of the PMOI was “perverse”. The POAC judgment was based on a thorough assessment by the court of all evidence presented by the UK government to show that the PMOI was concerned in terrorism. The POAC found that there was no evidence whatsoever that could indicate any terrorist activity on the part of the PMOI. Simply put, the PMOI is not a terrorist organization and as such it should not be on the terror list, according to the court.

In response to the POAC court ruling, the Council did nothing. In spite of the new court ruling saying very clearly that the PMOI was not a terrorist group, the Council kept the PMOI on the terror list. The official explanation was that the Council was waiting for an appeal that had been lodged against the POAC ruling.

A few months later, in May 2007, the UK Court of Appeal gave its judgment, stating that the POAC was correct in every way. In fact, the Court of Appeal went even further saying that studying the secret material had further reinforced the court’s view that the accusations against the PMOI were unfounded.

At this point in time, in the early summer of 2008, many people following the case (myself included) actually thought that the terror listing of the PMOI would finally be lifted. In retrospect I must admit this was naive. Little did I know how far the Council’s criminal acts would go.

Rather than respecting the court rulings and removing the PMOI from the list, the Council took a new decision in July 2008, saying that the PMOI would be maintained in the list because there was now “new information” about some secret terrorist activities. The “new information” was presented by the French government, and all other members of the Council accepted this, even though the French hardly explained any details of what the new accusations were about.

Later, it has become clear what the so-called “new information” really was. The French government was saying that there was a judicial inquiry open against certain individuals who were suspected to belong to the PMOI. The inquiry in question had been opened in 2001, and had been kept open for seven years without the case ever being brought to court. Now, of course, that came in very handy for the Council. The argument was: “look, these people are under investigation… surely they must be guilty of something!” Since the case had never been taken to trial, there was no way for the accused persons to defend themselves. They were just guilty from the start. Terrorists. No court needed, in the Council’s view.

However, the court once again took a different view than the Council. According o the CFI, the Council’s decision of July 2008 was illegal in a number of respects, as declared in the CFI judgment of December 4, 2008.

With that, we have reached the present point in time. This is written on December 23, 2008. Right now, the Council is still trying to decide what to do after the latest CFI judgment. Considering the history of the case given above, it is not at all certain that the Council will obey the court. Having taken so many illegal decisions in the past, the Council might choose that route once again.

Having described what has happened, let us now try and understand why. How could the Council act illegally so many times in a row? How is it possible? After all, the EU Council of Ministers is composed of all the governments of the EU countries, certainly they should know better.

At first, one tends to think this might have happened by accident, that the Council simply misunderstood the law and misread the previous judgments, but honestly believed that each new decision was legal. For example, the Council might have employed extremely incompetent legal staff who were unable to read the law and unable to read previous judgments. However, such an explanation can hardly explain how the Council could take so many illegal decisions in a row. One can easily verify that most people working with these issues for the Council are actually quite capable of reading, they are even well educated.

Sadly, that leaves only one possible conclusion: the Council has actually acted criminally, broken the law knowing full well that the actions were illegal. This is really heartbreaking to realize, but unfortunately there is no other explanation.

The next question, then, is why? Why does the Council knowingly break the EU’s laws again and again? Obviously the reason is that the fundamentalist Islamic regime of Iran has put pressure on EU to blacklist the largest opposition group, in return for some favors. This has even been openly admitted by the then UK foreign minister Jack Straw.

I hope that the Council will now finally decide they have gone far enough in breaking the law. There are many reasons for them to do so, but the most important one is this: the Council members should remember who they are, and what their job is. They are the democratically elected governments of the European countries, countries with strong traditions of rule of law. It is not too late to set things right again.

Elias Rudberg

Stockholm, Sweden

[email protected]

By Elias Rudberg