There is a fundamental difference between the sanctions imposed by the UN and those imposed by individual countries or the EU. Sanctions imposed by the UN Security Council in accordance with Chapter Seven are compatible with international law, and it is expected that all states will respect them. However, enforcement is difficult concerning countries that bypass such sanctions unless the most powerful members of the international community decide to take on the role of enforcer. UN sanctions were the norm in the wars for the breakup of the former Yugoslavia in the 1990s. In recent conflicts, UN Security Council sanctions have proven impossible due to conflicting views between Russia and Western permanent members. Thus, Western powers have resorted to imposing unilateral or multilateral sanctions without UN authorization. They have become a reality in modern international relations.
You are obviously not a supporter of such sanctions?
The EU Sanctions Law is binding on member states and is adopted by the EU Council within its competencies for the Union's Common Foreign and Security Policy. However, the decision-making process is controversial, as are the specific reasons for which individuals or entities are sanctioned: the process by which certain individuals and entities are placed on sanctions lists is opaque and not comparable to other EU legislative acts, where the European Parliament and Commission are involved in a complex system of checks and balances—it is more of a negotiation process conducted behind closed doors, with outcomes that are sometimes difficult to understand. This raises questions about the legal predictability of such drastic violations of human rights, such as the right to property. Furthermore, the member states themselves are responsible for implementing and enforcing EU sanctions, leading to a problematic situation where there are around 160 national competent authorities potentially making different decisions on sanction issues, eliminating legal certainty for sanctioned individuals and associated entities.
You have once said, "sanctions are nuclear bombs according to European laws." This is the most powerful weapon against individuals that the legal system can have. But is there any way for individuals to be protected from such measures? For example, relatives and families of certain individuals are targeted, even though they have no connection to the positions and actions of politicians and businessmen who are the actual subjects of sanctions?
Currently, there is no established measure to protect individuals from sanctions. Furthermore, there are no clear exit paths for individuals included on the EU sanctions list or any set of expected behaviours to avoid being included in the first place. Once someone's name is on the sanctions list, they can be removed through successful legal proceedings before European courts or a political decision in the EU Council. Russian experts, like Harvard economist Andrei Yakovlev, advocate for defining a set of criteria that would enable sanctioned businessmen to be removed from the list. He criticizes the fact that people with different relationships with the Kremlin are grouped together without considering their stance on the conflict, their personal proximity to the regime, and its policies. Unfortunately, within the EU, there is no consensus on what such "ramp-up to sanctions" could look like.
It often seems like sanctions are an end in themselves?
It is alarming that currently even businessmen with extremely weak ties to Russia—such as those sanctioned solely because they are family members of wealthy industrialists—are reinstated on the sanctions list after successfully winning their cases in EU courts. This is a blatant disregard for the values that Europe stands for and extremely concerning for me as a lawyer who originally specialized in human rights cases. You have to imagine, there are people for whom the General Court of the EU has ruled that their sanctioning is legally unsustainable, and the EU Council did not appeal the judgment. The person is officially relieved of sanctions. However, in the meantime, the EU changes the legal basis for sanctioning Russians and puts the same person back on the list under a different heading. I am deeply concerned that the EU is abandoning the very values it claims to defend, similar to what the US did after September 11th with the Patriot Act, limiting freedoms under the guise of defending them. Moreover, sanctions have a paradoxical effect: since sanctioned Russian businessmen can no longer access their wealth in the Western world, they become increasingly dependent on their assets in Russia. This means many are returning to Russia, where they must demonstrate their loyalty to the ruling elite. It would be more logical to provide these people with the opportunity to build businesses outside of Russia after breaking ties with Putin's policies.
The US is pressuring other nations to be prosecuted before the International Criminal Court, which they do not recognize, just like Russia, for example. The Russian president is subject to ICC prosecution. This raises the question of whether international law is a tool of the stronger against weaker nations? How do you see the current practice of EU sanctions in the case of Russia, for example?
International law is and always has been "soft law" relying on the consent of sovereign states, the primary subjects of international law. It largely rests on reciprocity and necessity, and in the case, you mentioned, reciprocity is lacking. In the development of international law, there is inherent tension between the ideals of the international community of states whose relations are governed by international law and the "law of the jungle," where might is right. While this latter element cannot be eliminated in the absence of an enforcement mechanism, international law still serves to curb the worst excesses, i.e., the behaviour of stronger states vis-à-vis weaker states. The EU, lacking traditional "hard," i.e., military power—has always relied on rulemaking in the international arena as the primary source of its influence. This has been effective in many areas such as industrial regulations, environmental issues, or human rights, etc. However, this approach reaches its limits when it comes to armed conflicts, where the EU, again lacking unified military power, relies on sanctions in an attempt to impose its view of things. In the absence of sufficiently robust power or other means available, the EU sticks to its sanctions even though they do not and cannot have the desired effect. Personally, I believe that the EU has a huge, unfortunately underutilized tool it should rely on more—diplomacy.
Serbia is often criticized for not having imposed sanctions on Russia. We believe we have valid reasons not to do so. How can we prove and justify our stance?
I believe this is very straightforward: EU sanctions are binding on member states, which Serbia is not. There is no immediate prospect of accession that would guarantee full alignment of Belgrade's foreign and security policy with the EU. Russia is an economically and geopolitically significant partner for Serbia that cannot be replaced overnight. I believe Belgrade should continue on its path towards full EU membership and align its economic, foreign, and security policy with the EU as it progresses along that path. This carries responsibility not only for Serbia but also for the EU: when Brussels can demonstrate how the EU will replace Russia in areas essential to Serbia such as energy security, defence, etc., then Belgrade will have reason to change its orientation as well.
How can the European Court of Human Rights act in such cases to protect individuals from states' restrictive measures?
The European Court of Human Rights can consider cases related to sanctions when they relate to the European Convention on Human Rights. For example, the court applies high standards when it comes to Article 6 of the Convention, especially regarding predictability and proportionality of measures.
Your prominent case was against former Ukrainian Prime Minister Azarov. What was the essence of this case, and what are its consequences for other cases?
In several subsequent cases, the Court of Justice emphasized the EU's obligation to ensure that the right to defence and the right to effective legal protection are respected by third countries, namely Ukraine. Which was not the case in the regime of the previous president. The implications for future cases highlight the EU's inability to arbitrarily place individuals on sanctions lists without legal justification. From now on, EU Council Regulation No. 269/2014 has expanded sanctions to include members of the immediate families of Russian business personalities. This expansion has raised concerns among relatives of Russian businessmen who are rightfully afraid of being listed solely due to secondary connections to Putin or the Russian government through their family members, akin to collective punishment sometimes used in totalitarian systems where families are deemed responsible for the alleged misdeeds of their relatives.
The European Parliament recently adopted a new recommendation to impose sanctions on the President of Republika Srpska, Milorad Dodik, because Republika Srpska celebrates a certain day as its holiday. How serious are such demands, and such motivation?
The European Parliament, like many parliaments worldwide, tends to speak louder and faster than the EU Council, and its statements on such matters may attract media attention but are more declarative in nature. However, regarding the content of the report it adopted, it should be noted that the right of the entity of Republika Srpska to a holiday was not called into question. The problem was the choice of date, which is contrary to decisions of the Constitutional Court and several provisions of the BiH Constitution prohibiting discrimination. Ignoring these decisions constitutes a criminal offense under BiH law. Of course, some may not like the laws currently in force in BiH and would seek their change, but this should happen through democratic processes in the legislative arena.
This interview with Managing Partner Gabriel Lansky was published on politika.rs on 17 March 2024.
