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“European Union’s Teeth” on Ukraine’s Service

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On 7 December, the Council of the European Union adopted a global human rights sanctions regime. The established legal framework provides for the EU travel ban and the freezing of funds applying to individuals and entities listed. Ukraine has to seize the new opportunities that arise in this regard to defend the national interests and protect its own citizens who have fallen victims to Russian aggression and persecution in the territories that are temporarily occupied by Russia.

The new mechanism is different from the previous legal practice as it allows sanctions to target specific individuals, regardless of whether a sanction regime has been imposed on the state of which they are nationals. In this sense, it is compared to the Magnitsky Act, a law passed in the United States in 2012 to impose personal sanctions on violators of human rights and the rule of law. Initially, it was applied to those involved in the death of lawyer Sergei Magnitsky, who exposed multibillion-dollar thefts of budget funds, in a Moscow prison.

A similar amendment to the law on sanctions and the fight against money laundering was adopted by the United Kingdom in 2018. Laws similar to the Magnitsky Act were already adopted in the Baltic states and Canada. Eight Nordic Council members – Denmark, Finland, Iceland, Sweden, Norway, Faeroe Islands, Greenland and Åland Islands – have declared their readiness to amend domestic legislation. This issue had long been discussed at the EU level, but the circumstances caused by the coronavirus pandemic delayed the decision. The assassination attempt on Russian opposition leader Alexei Navalny accelerated the process in August. There is almost a symbolic coincidence in the adoption of the EU’s global human rights sanctions regime and the publication of a major journalistic investigation by Bellingcat, CNN and Der Spiegel into the activities of the FSB poison squad, who had been tailing Navalny and his family, apparently with the consent and on the order of Russia’s political leadership.

Back in September, EU’s foreign affairs chief Josep Borrell proposed at the European Parliament session that a mechanism for human rights sanctions should be launched and named after Alexei Navalny, in the same way that the Americans called the human rights sanctions the Magnitsky Act after Russian lawyer and victim of the Putin’s regime. However, it was rightly acknowledged not to limit the scope of the sanctions regime, which is intended to be global and universal. According to Dutch Foreign Minister Steph Blok, the European Union is now moving from condemnations and verbal reactions to human rights violations to specific punishments. European human rights policy “got its teeth to bite,” Lithuania’s Foreign Minister Linas Linkevičius told the Nu.nl online media outlet and expressed hope that the new regime would also be expanded to cover corruption cases. The opinion is shared by the leadership of the European People’s Party, which has the largest representation in the European Parliament, so the prospect of finalising and improving the new norm is quite real.

Critics of the EU’s decision, primarily and obviously from Russia, point out that human rights are violated under the slogan of protection of human rights, as perpetrators are charged without judicial procedure and punished with an EU travel ban and prohibition on the use of the Union’s financial system. However, this is not true. All those targeted will be able to challenge sanctions imposed on them in the European Court of Justice in Luxembourg, if there is a will.

The only somewhat weak point of the new framework is the consensus mechanism for decision making on sanctions. All 27 EU member states have to support the proposals, although initially a qualified majority was meant. This complicates and slows down the process, but the very existence of such a mechanism outweighs its shortcomings.

Sanctions lists will be drawn up at the request of an EU member state or the EU’s chief diplomat, and the first candidates will appear already next year. First of all, it is easy to predict that these will be people involved in Navalny’s poisoning and Belarusian security officers known for suppressing the protests. Allegations against human rights violators in Turkey and Venezuela are also expected.

At the same time, the goal of Ukrainian diplomacy and human rights organisations should be to draw the attention of European partners to the human rights situation in the grey zone of the occupied territories, both in Crimea and in Donbas. Relevant experience has already been gained here. Thus, in November, the Third Committee of the UN General Assembly adopted a Ukraine-sponsored resolution condemning human rights violations in Crimea, including “discriminatory measures and methods; arbitrary detentions and arrests; torture and other cruel, inhuman or degrading treatment; sexual and gender-based violence, in particular to compel detainees to give evidence against themselves or to ‘cooperate’ with law enforcement agencies”. There are many examples of such violations, for example, in the occupied Donbas where the legislation of any state is not enforced at all and total arbitrariness and violence prevail. The scale and level of horrors are evidenced, in particular, by the memoirs of former hostage of the separatists and their Russian masters Stanislav Aseev entitled “Path of light. Story of one concentration camp” about his captivity in the Donetsk prison “Isolation”.

Ukraine is simply obliged to make every effort to launch a mechanism of the new EU sanctions regime in order to move from condemnations to specific punishments, as the Dutch foreign minister said. “Teeth of the European Union” must become our teeth.

Ukrainian diplomats are fully aware of the opportunities that open up and the challenges that follow. The Ministry of Foreign Affairs of Ukraine noted in its commentary on the launch of the new human rights sanctions regime that “the EU has once again proved that it is a recognised world leader in the fight against human rights violations. We hope that the new EU sanctions regime will be an effective and systematic tool for punishing those guilty of violating fundamental human rights in the temporarily occupied territories of Ukraine and will encourage the occupation administration to stop these crimes… We expect that the implementation of the human rights sanctions regime will be part of our regular human rights dialogue with the EU as well as consultations on the legal consequences of the temporary occupation of the Autonomous Republic of Crimea and the city of Sevastopol.”

The Ukrainian citizens, both from the “mainland” and the occupied territories, also have great hopes for these prospects.

Leonid Shvets

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