The EU, the “Magnitsky Act” and targeting autocrats in the Eastern neighborhood. Analysis by Dionis Cenușa
From December 2020, the EU will have at its disposal a unique regime for sanctioning perpetrators of human rights crimes, globally. The resurgence of current autocratic repressive practices in Belarus predisposes to the first transposition of new European sanctions in the Eastern Neighborhood. In the same region, other governments severely restrict democratic freedoms, as evidenced over many years by the situation in Azerbaijan. At the same time, the pseudo-authorities in the separatist regions of Moldova and Georgia are known for their abuse of fundamental rights and in particular for ethnic minorities. New EU sanctions could also target at Russian officials who commit or favor new cases of human rights violations on Ukrainian territory – in Crimea and Donbas.
The EU and the new generation of pro-human rights sanctions
The new sanctions regime developed by the EU differs significantly from the usual ones. The EU imported the concept of the new generation of sanctions from the US. It lies on detection of crimes against human rights without regard to their jurisdiction. Travel bans are applied, and funds available in the EU are frozen (EU, December 2020). Also, transfers of money made by European nationals and from the territory of the EU to entities / individuals accused of abuse are prohibited (EU Regulation, December 2020). At the moment, there are over 40 sanctions regimes of European origin, which focus on states and natural persons or legal entities from third countries, respectively. Besides, there are international sanctions, implemented by the EU, stemming from UN Security Council resolutions. The latter has the power to establish measures or in other words “sanctions” in order to support the implementation of its decisions (Art. 41, UN Charter).
Thanks to the global sanctions regime adopted in December 2020, the EU is actually standing alongside other international actors – the US, Canada and the UK – who apply individual sanctions for human rights abuses, regardless of the place where crimes are committed and the nationality of the perpetrators. In fact, through this sanctions regime, the EU consolidates its status as a “normative power”, which is usually limited to “diplomacy of declarations” (IPN, November 2020) or conditionality (IPN, May 2020). At the same time, the determination to promote human rights and penalize non-European (non-) state actors attacking them is an additional investment in the EU’s geopolitical ambitions. Thus, Brussels assigns the mission to penalize individuals and companies from third countries, in the view of the head of European diplomacy Josep Borrell, “in a more flexible way”. However, the provisions of the new sanctions regime also include entities/individuals of European origin, which can act as proxies for offenders outside the EU.
The decision to introduce a modern system of sanctions against human rights crimes keeps the EU within the bounds of preventive logic. According to the European Commission’s official website, general restrictive measures are aimed at “preventing conflicts” or “responding to crises”. In other words, European decision-makers use individual sanctions to influence the behavior of those who undermine human rights. In such a context, sanctions intend to increase the image costs for the actors concerned. Therefore, they are reversible and can be withdrawn later. The new sanctions regime is not defined as a punitive instrument either. However, given the lack of a relationship with a particular state, the punitive degree of the sanctions derived from the “European Magnitsky Act” will be higher than the restrictions previously applied. So far, the EU has detailed punishable offences. Thus, the first group of human rights violations includes grave crimes, such as genocide, slavery, etc. The second group of crimes incorporated in the new EU sanctions regime consists of abuses against freedom of assembly or opinion, characteristic of authoritarian regimes (EU Decision, December 2020). However, the Member States or the head of European diplomacy (High Representative) will be entitled to propose to the Council to supplement the list of sanctions according to the seriousness of the crimes, but also following EU foreign policy interests, including the one of supporting democracy, the rule of law and justice and human rights (Art. 21, EU Treaty). Internally, the EU will decide unanimously on the composition of the list. At the same time, Brussels is popularizing the application of similar restrictive measures by other third countries (EU Decision, December 2020), without making any exact reference to the Western Balkans or the Eastern Partnership countries – Georgia, Moldova and Ukraine.
US and EU “Magnitsky Act” – together or separately?
The EU’s global sanctions regime is extending European instruments for extra-territorial sanctions. It copies the American mechanism of the “Magnitsky Act”, enacted in 2012, against Russian officials involved in committing an individual crime. Since 2017, the scope of US sanctions mechanism expanded beyond Russia covering human rights violations, as well as corruption cases, committed anywhere in the world, by both officials and individuals. During 2017-2020, the US authorities sanctioned over 240 people and entities, originating from 28 countries (State.gov., December 2020).
A temptation to apply sanctions similar to the US is unlikely in the EU. The first impediment to this is the principle of unanimity, based on which national governments in the EU Council will have to designate sanctioned entities/persons. That mismatches with the expectations of the US, which, through the voice of Secretary of State Michael Pompeo, encouraged the EU to establish the first sanctions “as soon as possible”.
Secondly, the EU has a narrower scope of the global sanctions regime that eliminates the corrupt component used by the US to punish “corrupt” politicians in Africa, Asia, including the EU’s southern neighborhood – Lebanon. However, the American side has reiterated that, at least in terms of human rights, it will act as an EU “partner“. The autonomy of the US sanctions system, on the one hand, and the slowness of EU decision-making (caused by unanimity), on the other one, significantly limit the possibility of synchronizing the lists of sanctions between them in the future.
Finally, some other significant differences between the US and the EU could stem from the geographical prioritization of sanctions. Thus, the US authorities used the “Magnitsky Act” to punish certain Chinese nationals for abuses committed in China, such as the repression of Uighurs in Xian Jing province, but also abroad – in the corruption case related to Cambodia. Unlike Washington, the European institutions interact with the Chinese side in a much more cautious manner. Although the EU is aware that China is an “economic competitor” and a “systemic rival”, it has not yet formulated any intention to sanction Chinese officials or entities for human rights violations. The only ways used by Brussels were to report abuses through political statements and engage in bilateral human rights dialogue, which met for the 37th time in 2019. The application of the global sanctions regime against Chinese officials could complement the EU’s set of available political and diplomatic instruments. Any risk of damaging economic relations, which was worth EUR 1.5 billion a day in 2019, especially in the context of the pandemic, will lead to reluctance from the EU’s side. Moreover, the Member States’ national interests around a(ex)ttracting Chinese investment may also complicate the possible use of sanctions against human rights abuses in China. A more courageous and determined attitude towards the synchronization of pro-human rights sanctions regimes between the US and the EU could materialize in targeting (non) state actors in Eastern Europe, in particular in Belarus and Russia.
Table. Similarities and differences between the US “Magnitsky Act” and the EU’s one
|Title||Global Magnitsky Human Rights Accountability Act||Global Human Rights Sanctions Regime (Decision EU, Regulation)|
|Year of adoption of the legislative / normative act||2016||2020|
|Year of effective application||2017||2021 (eventually)|
|Core types of sanctions||– Travel ban – Freezing of funds||– Travel ban – Freezing of funds|
|Activation criteria||– Abuses against human rights – Corruption, including with the involvement of public funds||– 12 types of concrete abuses against human rights|
|Revision of the list of those sanctioned||The Secretary of the Treasury, in consultation with the Secretary of State and the Attorney General.||The Council (national governments) at the proposal from a Member State or from the chief of EU diplomacy.|
Source: Author’s compilation based on data from state.gov and ec.europa.eu
The first targets – the autocrats from the Eastern Partnership?
Theoretically, the new EU pro-human rights sanctions regime targets the perpetrator, who is seen separately from the country of origin. In other words, that European mechanism targets the official or private person separately from nationality x, y or z, who has committed a specific abuse of human rights on his or her national territory or abroad. It is uncertain at this time whether or not the newly designed sanctions regime will coexist with the restrictive measures already applied in the field of human rights. However, the merging of sanctions in the same area would eliminate overlaps, including because both categories of sanctions contain travel bans and the freezing of funds.
The EU sanctions map illustrates that the old human rights sanctions in the Eastern Partnership countries target Belarus on the one hand and Moldova and Ukraine on the other. In the case of Belarus, some personal sanctions were dating back to 2004 and lifted only in 2016. Sanctions against Belarus returned to circulation after the falsification of the August 2020 presidential elections, followed by anti-government protests and repeated waves of repression against the opposition and protesters. The EU’s reaction to the anti-democratic derailments, although late, resulted in personal sanctions against 59 Belarusian officials, including President Alexander Lukashenko. Their funds are frozen, and their travel across the EU is banned.
The sanctions adopted against Moldova and Ukraine differ diametrically from those developed for Belarus, as they target crimes committed in the separatist regions (Transnistria) and those annexed (Crimea), respectively. Currently, the list of sanctions concerning Moldova specifies no name. Initially, it was introduced in 2003 and extended until October 2021 and included only travel bans. At the same time, the Ukrainian case involves more sanctions aimed at restoring the territorial integrity (177 people and 48 entities) and sanctioning Russia for the destabilization of Ukraine.
The use of the EU “Magnitsky Act” concerning the Eastern Partnership states may be relevant to those states where European conditionality does not exist or cannot be applied uniformly throughout the country. Therefore, the new European sanctions regime is useful in intervening against systematic human rights violations in Belarus and Azerbaijan. They are not dependent on EU macro-financial assistance. At the same time, the same sanctions regime must be put in place to punish abuses in the separatist regions of Moldova, Georgia and Ukraine. All in all, the implementation of the European “Magnitsky Act” gives civil society in the region the opportunity to make Brussels even more susceptive to human rights infringements and the need to intervene against them.
In lieu of conclusion…
The EU’s global human rights sanctions regime is in its infancy. Inspired by American practice, the European sanctions regime has a more limited scope. After all, the existence of the European “Magnitsky Act” reduces the margin of avoidance for sanctions against abuses committed outside the European continent. Although discussions on the synchronization of US-EU sanctions positions are premature, the sanctions regime provides a new platform for cooperation among Western powers in the field of promoting human rights globally.
In order to revive the democratic processes in the Eastern Partnership, the EU must show its full openness to use the sanctions regime in order to stop the violations of authoritarian regimes against democratic freedoms. Contrary to the real effectiveness of these sanctions, their implementation will benefit the internationalization of the voice of the groups with rights under breach, also materializing the EU’s status of normative and geopolitical power.
This analysis is carried out for the German Hanns Seidel Foundation and the IPN News Agency.