EU Makes Punishment without Trial LEGAL | Dr. Alexandra Hofer

The recent exchange with Dr. Alexandra Hofer exposes a fundamental legal and political tension in how the European Union now deploys—and defends—sanctions. Once a tool aimed outward at states or clearly defined terrorist actors, sanctions have drifted into a gray zone where they reach individuals for speech, alleged influence operations, or vague associations. The conversation makes plain that this shift is not merely semantic: it raises questions about judicial review, proportionality, constitutional guarantees, and the role of non-judicial remedies. The result is a legal architecture that privileges executive decision-making and treats severe human-rights-affecting measures as preventive tools rather than punitive acts requiring adversarial process. ## Human Rights Avenues and the EU Charter The discussion highlights how sanctions that freeze assets, bar travel, and restrict access to bank accounts are squarely human-rights matters. Under the EU framework these measures implicate freedoms of movement, property rights, and expression. Dr. Hofer emphasizes that such measures are often justified as preventive steps to protect collective security, a framing that changes the legal calculus: a preventive rationale can validate severe deprivations without the procedural safeguards expected in criminal or administrative proceedings. A central obstacle identified in the exchange is institutional: the EU as an entity has not acceded to certain key human rights treaties that might provide clearer routes for redress. While individuals can invoke the EU Charter of Fundamental Rights in proceedings before EU courts, the absence of EU accession to the European Convention on Human Rights and to the ICCPR narrows the mosaic of external human-rights accountability. This creates practical barriers for those sanctioned: domestic remedies must often be exhausted first, but national courts are constrained by the primacy and presumed legality of EU-level restrictive measures. Moreover, the courts that do review sanctions measures—principally the General Court and, on appeal, the Court of Justice of the European Union (ECJ)—have demonstrated a willingness to treat the Council’s public-interest justifications as weighty, sometimes bordering on dispositive. The conversation points to a jurisprudential pattern: where an infringement of a right is acknowledged, courts have frequently been content to accept proportionality arguments posed by the executive. That deference narrows the effective scope of classic human-rights scrutiny, especially where the executive frames the restriction as essential to preventing harm to collective security. ## Constitutional Protections vs. Executive Power The conversation turns next to a constitutional problem: who decides and on what record? Sanctions have migrated from the classic realm of interstate foreign policy into the more contentious area of restricting individual liberties. In doing so the Council of the EU has assumed an executive role with quasi-judicial consequences. Dr. Hofer’s observations underline that the Council often supplies opaque, summary reasons for listing. The initial period of UN Security Council listings—where individuals received no reason at all—has not been fully replaced by a robust EU process supplying detailed factual bases. This executive-centric practice collides with constitutional values of due process and effective judicial review. Courts have tried to mediate by insisting on at least minimal statements of reasons and some evidence; yet when a judicial decision forces delisting, the Council has sometimes relisted the same individuals with adjusted language. That iterative dynamic illustrates two constitutional pathologies: first, an executive that treats judicial scrutiny as a cosmetic hurdle to be rebuffed by rephrasing; and second, a judiciary that lacks either the institutional will or the remedial imagination to impose durable restraints on politicized listings. Underlying these pathologies is a jurisprudential choice to treat sanctions as preventive rather than punitive. That choice allows executive actors to operate with less process: listing becomes a matter of risk judgment and foreign-policy calculus, not a determination that must satisfy the standards of criminal or administrative law. The consequence is a tension between formal constitutional guarantees—rights to a fair hearing, effective remedy, and proportionality—and the realities of a political institution deploying tools of restriction without the traditional safeguards that accompany deprivation of liberty or property. ## Challenging the Sanctions Regime and Member States The conversation paints a sobering picture of legal challenge strategies. Litigation before EU courts remains indispensable and has yielded victories when the Council fails to substantiate its statements. Yet victories are often temporary when the political branches simply relist on revised factual grounds. That reality pushes lawyers and litigants toward a mixed strategy: judicial challenge coupled with political and advocacy measures directed at the European Parliament, national governments, and public opinion. Dr. Hofer suggests that national courts could play a pivotal role, particularly by scrutinizing Council decisions when they affect nationals or residents within member states. Pursuing domestic remedies might also preserve the possibility of subsequent appeal to international human-rights bodies—if procedural hurdles like exhaustion rules can be negotiated. But the patchwork of member-state responses complicates the strategy. Some member states may vigorously defend Council measures as vital to EU foreign policy; others may be more receptive to constitutional challenges. Thus, contesting sanctions becomes both a legal and a political project. Pushing the issue beyond courts, the conversation also flags institutional reform options. Legal scholars and practitioners could press for clearer procedural guarantees: improved statement-of-reasons requirements, independent review mechanisms, and stricter evidentiary standards for imposing rights-depleting restrictions. The evolution of the jurisprudence that initially constrained UN listings shows that judicial pressure can induce institutional reforms—but only insofar as courts impose consequences that are harder to neutralize through relabeling. Without stronger remedial tools, the tug-of-war between Council lists and court pronouncements will likely continue. ## Diplomatic Immunity and Political Solutions One striking dimension explored in the discussion is the diplomatic and political fallout when sanctions target third-state nationals—figures who may have roles in other countries’ political life or who claim diplomatic protections. The interplay of diplomatic immunity, state sovereignty, and EU restrictive measures creates complex legal knots. Targeting a national who is also a diplomat or who claims political activity abroad raises sensitive questions about extraterritoriality and the reach of EU measures. The interlocutors emphasize that some disputes may be more effectively resolved through diplomatic channels than litigation. When individuals are politically prominent in their home countries, or when listings provoke interstate tensions, bilateral or multilateral negotiations can dilute the legal standoff. That suggests a more pragmatic view: law alone cannot recalibrate the balance between executive foreign-policy prerogative and individual rights; political engagement remains necessary. Yet political solutions carry their own risks. They can entrench ad hocism, favoring those with leverage or influence while leaving ordinary individuals with fewer means to resist unfair listings. This creates a normative dilemma: political bargaining can unfreeze a logjam faster than courts, but it risks unequal application and undermines rule-of-law principles if used as the primary remedy. The conversation

EU Makes Punishment without Trial LEGAL In its quest to defeat Russia, the EU has started sanctioning its own citizens, and those of third states like my country men, Nathalie Yamb and Jacques Baud. But what are these sanctions actually in the international legal system? Here to help with this question is Dr. Alexandra Hofer, an Assistant Professor Public International Law at Utrecht University’s School of Law. Links: Publications of Dr. Hofer: https://www.uu.nl/staff/ASHofer/Publications Neutrality Studies substack: https://pascallottaz. substack.com (Opt in for Academic Section from your profile settings: https://pascallottaz.substack. com/s/academic) Goods Store: https://neutralitystudies-shop.fourthwall.com Timestamps: 00:00:00 Introduction: What is Sanctions Law? 00:04:07 Legal Justifications and Targeting Individuals 00:09: 28 The Limits of Judicial Review (ECJ) 00:16:17 Human Rights Avenues and the EU Charter 00:23:45 Constitutional Protections vs. Executive Power 00:28:11 Challenging the Sanctions Regime and Member States 00:38:16 Diplomatic Immunity and Political Solutions 00:52:00 Corporate Compliance and Conclusion #Pascal In its quest to defeat Russia, the EU has now started sanctioning its own citizens and those of third states, like my countrymen Nathalie Jamp and Jacques Bourg. But what are these sanctions, actually, in the international legal system? Here to help with this question is Dr. Alexandra Hofer, an assistant professor of public international law at Utrecht University's School of Law. Alexandra, welcome. #Alexandra Hofer Hi, Pascal. Thank you for having me. #Pascal Thank you for saying yes to this, because by now it’s not clear anymore whether, you know, appearing publicly and speaking critically about the sanctions might come back to haunt us. But you said you have observations and information to share about what sanctions law actually is and how it works. What’s the most important thing to know about sanctions law? #Alexandra Hofer Well, that's a huge question because, of course, sanctions come in many, many different forms, right? Lately, you've been drawing attention to the issue of people who have been targeted basically for things they’ve said. So we’d be talking about the cases of Nathalie Jamp, Jacques Bourg, or Hussein Drogo, I think that was his last name. Their assets are frozen, they can no longer access -- 1 of 21 -- their bank accounts, and they cannot travel in the EU’s territorial space. So those types of sanctions would be regulated, let’s say, under human rights law, because they necessarily intervene in the exercise of these individuals’ fundamental rights. Right. So that’s one area of law you would look at. But then you can broaden the discussion and talk about the sanctions packages as a whole that have been adopted against Russia, for example, and discuss to what extent this is even compatible with international law. So if we're talking about seizing Russian assets and transferring them to Ukraine, is that compatible with state immunity, for example, over their property? There are many areas of law that come into play when we talk about sanctions. But I think one of the crucial points about sanctions law is that it's what we would call a gray area. It's often very unclear whether these measures are lawful or not, and that has to do with the many areas of international law they can touch upon. #Pascal To my mind, sanctions law is a clear example of, um, you know, sovereign right — a sovereign entity that has power and control over a territory takes the right to restrict others from using that territory, its goods, or whatever it produces, right? Um, yeah, is that understanding correct? #Alexandra Hofer Yeah, that's absolutely correct. And actually, it was kind of interesting to watch your show over the last week or so, Pascal, because I saw you learning in real time what sanctions are, or how they’re perceived from a legal perspective. I think one of the most counterintuitive things is that sanctions, from a legal and perhaps even a judicial perspective, are not seen as punitive measures. #Pascal Mm-hmm. #Alexandra Hofer They're seen as preventive. And from a human rights perspective, that has a whole list of consequences, because it can justify adopting these severe restrictions without a hearing, for example, or without an independent body reviewing the facts to see, okay, is this justified? So it's like a prerogative the sovereign has, generally to protect a public interest—something essential to the state—against, usually, a foreign actor. But we can broaden what “foreign” means: what kind of interference does this actor have? And then kind of turn it inward, let’s say, which is what we seem to be witnessing now with the latest round of sanctions. #Pascal -- 2 of 21 -- I think this point is so important. They’re supposed to be preventive because one of the justifications, for instance, for blocking the airspace above the EU to individuals on the sanctions list is that they pose an imminent threat to the national security of the European Union. Therefore, these individuals cannot be allowed to fly over EU space. This seems, of course, completely bogus. But do you think we’re seeing now how this very American way of justifying anything under the sun— like national security—is creeping into the EU legal space? Because at the end of the day, sanctions are a measure that a state body takes and declares legal, right? Because if they weren’t legal, they could be challenged. Or let me ask it this way: do you think they will be challenged? And do you think there’s a legal body that would say, “No, you can’t do this”? Okay, so we’re talking about the sanctions against Natalie Young, for example—let’s say, against individuals. Is the EU actually free to sanction whoever they want under the sun? #Alexandra Hofer Well, that’s what I wonder, because indeed, when the EU or the UN Security Council first started adopting sanctions against terrorist actors—especially after 9/11—the EU basically followed what the Security Council was doing. There seemed to be little dispute that terrorism constituted a threat to international peace and security. The real difficulty was, how do you define a terrorist? How do you identify one? So that was already quite contentious. Also, these individuals would be listed without a hearing, and before, they wouldn’t even know what it was they had done. They were given no information about their listing—no statement of facts, nothing, right? In the case of Jacques Boulle, for example, there’s this small paragraph accusing him of being a Russian mouthpiece. It says he speaks on pro-Russian channels and apparently spreads conspiracy theories, right? So he’s given a summary of reasons, but he says it’s inaccurate. He’ll go and defend that in court. Initially, when individuals were targeted by the UN Security Council, they didn’t even receive that small summary explaining why they were being sanctioned. So they started to challenge them. And it was the courts that, you could say, took a lot of liberties in how they interpreted the UN Security Council measures. Normally, the UN Security Council is the supreme authority—if it adopts sanctions, you have to implement them. That’s because of the UN Charter, Article 103: if there’s any contradiction between what the Security Council says you should do and any other legal obligation, you have to follow the Security Council. But courts—and interestingly, EU courts, the European Court of Justice—started to say, “We assume that the UN Security Council intends to respect human rights.” And in any case, the EU has its own concerns; what’s at issue here isn’t so much the Security Council’s decision, but the EU’s implementing decision. So these regional courts started to put pressure on, in this case, the EU and its member states over how they were implementing UN Security Council sanctions. Then the member states said, well, you know, we're being accused of having breached human rights. So they went to the UN Security -- 3 of 21 -- Council and said, you have to reform your process because we're coming under fire for not respecting the rights of defense. I'm giving you a long-winded answer, perhaps, but the idea was that at first they kind of did whatever they wanted. Then the courts came in and started to say, no, you have to respect certain mechanisms. You at least have to give individuals the right to review their listing and to challenge it. At first, I think maybe the European Court of Justice—and perhaps we, too—had some faith in the mechanism that had been inspired by European courts. But gradually, the Council of the EU has become more and more creative with its sanctions, especially now that they’re starting to sanction actors for foreign information manipulation and interference. That’s the kind of sanctions list that Jagbo and Nathalie Young are under. So we’re moving away from targeting terrorist threats or sanctioning an aggressor state or a state responsible for human rights violations. And even though the individuals listed will challenge their listing—and I hope they do—the difficulty they might face is that the courts so far have been quite deferential to the Council of the EU. #Pascal Deferential, meaning they just rely on what the Council says. #Alexandra Hofer In many ways, they basically give the Council a lot of freedom to list, well, sort of whoever they want. What the courts essentially do is fact-check what the Council said. So, for example, if you’ve been listed because you’re a leading businessperson in Russia, you can’t really challenge whether that’s the correct approach for the Council—whether it’s right for them to target leading businesspeople. There’s an assumption behind it that if you’re a leading businessperson, you’re somehow contributing, even indirectly, to Russia’s war of aggression. So you can’t challenge that underlying presumption; you can only argue that you’re not a leading businessperson. #Pascal Sorry, I didn’t know that. This makes it even worse. If the EU Council said, “We are targeting Jacques Ball because he’s a 70-year-old man,” then the only defense he would have is to say, “No, I’ m actually a 70-year-old woman.” But he could also say, “Look, it doesn’t make sense that you sanctioned me for that.” #Alexandra Hofer I'm 71 now. You know, but OK—yeah, yeah, OK. But no, yeah, it's a joke. #Pascal -- 4 of 21 -- So the courts just accept whatever it is they’re sanctioned for. They only check the veracity of that, not whether it’s justified. #Alexandra Hofer This is against them, so I think now the Council is kind of pushing it, right? I mean, yeah, it’s like, how far do you go? And it’s because, at first, the Council was losing quite a few cases simply because they weren’t providing the evidence required to justify why the person was listed. Do you have a case—do you have an example of a case they lost? #Pascal It's in my mind. Sorry, I didn't ask. #Alexandra Hofer Well, recently there were two—the ones that were in the press were two Russian oligarchs, Aven and Fridman—and the Council was ordered to delist them because, basically, it couldn’t provide evidence to substantiate the reasons for which they were listed. #Pascal Mm-hmm. #Alexandra Hofer And so it’s like, okay, the court said, “Well, you’re not giving us enough evidence to justify your own statement of reasons, so you have to delist them.” But then the Council just changed its listing criteria and relisted them. #Pascal They relisted them with a different justification, and now they’re listed again. So even if you’re ordered to delist someone, as soon as you change that little paragraph, it makes any kind of appeal to the ECJ pretty pointless. #Alexandra Hofer I mean... so, like, I don't want to—but that's why I think the lawyers representing these individuals really have to pay attention to how the General Court reviews sanctions, and also be aware that they ten