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Moving on from sanctions to rule of law – Crimea

May 17, 2014

In what seems a long time ago – 27th February to be exact – I wrote the following relating to would be EU sanctions on the then recently departed Yanukovych regime:

“As sanctions are traditionally employed (be they targeted at individuals or nations alike) to change the direction of the leadership and not as a punishment for past deeds – the question now arises as to whether the EU Member States will actually sanction anybody at all.

Certainly there must now be a large question mark over the process – as there will be few EU Member States that will want to move the parameters of sanctions from “direction changing tools” to that of “punishment” after the fact.”

And

“Perhaps the EU Member States, in an effort to support the “EU brand” in Ukraine, would be wise to make a very public declaration that all assets held within their sovereign territories belonging to, or believed to belong to, any names that would have been on an agreed sanctions list, will now be subjected to criminal investigation regarding money laundering as a far better alternative?”

The principles in those paragraphs I still stand by.  To my mind, sanctions are not meant to be a “punishment” – punishment comes from due process and the rule of law.  Sanctions therefore should be nothing more than a tool for changing the direction of decision makers.

Have any criminal investigations into bribery and money laundering been opened against the members of  Yanukovych regime?  Are they actually going to be “wanted” by courts in Europe for such offences?

Things have moved on apace since the time of writing that of course.  The Kremlin by annexing Crimea has entirely scrapped numerous international, regional and multilateral legally binding instruments – such as the Helsinki Final Act of 1975 upon which territorial integrity and thus security within the European continent was reliant.

That cannot be undone.

Nothing The Kremlin can do will resuscitate the Helsinki Final Act – or for that matter The Kremlin as a trusted or reliable international partner.  The annexation of Crimea was, is, and will remain illegal, despite what may be considered by some, a very feeble response by the Europeans over such a truly grave issue relating to security and rule of law on the continent.

Therefore, with regard to all involved in the Crimean annexation, sanctions are no longer the instrument to use.  They are not going to change the course of decision makers.  The decisions have been made.  Crimea has been annexed.

It is time now to replace those sanctions with the rule of law within Europe.

Perhaps all assets relating to those with involvement in the Crimean annexation should now be subjected to criminal bribery and money laundering investigations.  Temporary travel bans should be replaced with official persona non grata decisions within every Member State.

Any organisation or individual that may be tempted to enter Crimea, be they Russian or European should be quietly informed that sanctions may – or may not – also apply, and criminal money laundering and bribery investigations are sure to follow should they have interaction directly or indirectly with any specific individual or entity currently sanctioned or under criminal investigation.

That applies especially so with regard to further violations of the human rights of Tatar and Ukrainians by any action direct or reasonably expected outcomes via indirect acts.

With regard to the issues in eastern Ukraine, clearly there remains the option for decision makers to change course.  No annexation has occurred and it currently seems unlikely any annexation will occur – though circumstances change rapidly.

Sanctions therefore remain an appropriate tool for those who can be justifiably separated from having involvement in Crimean decision making – and there are quite a few that would fall into that category.

But sanctions have their limitations – particularly from the European perspective.

It is quite clear that unless Russian tanks are literally about to enter Kyiv, Tier 3 sanctions will not be imposed upon Russian economic sectors as the EU has continually muted.  There are simply too many dissenters amongst the EU Member States to move to the next level of sanctions unless it appears that Kremlin actions will lead to millions of Ukrainian refugees pouring into EU Member States.

Thus aside from an ever horizontally broadening but never intensity increasing tactic, EU sanctions have gone as far as they are likely to go despite the rhetoric relating to the next level.  Application of the rule of law relating to ill-gotten gains, due process and prosecutions for those on sanctions lists has yet to be applied in any meaningful way for those initially sanctioned over Crimea – and it is about time this process began.

Criminal prosecution sends a very different message to a temporary Visa ban.

 

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