Saturday

17th Nov 2018

Opinion

Russia sanctions: test of EU commitment to international law

Speaking at a press conference in Moscow, Italy's interior minister Matteo Salvini recently announced that his government would "not be afraid" to use its veto powers in the European Union as a "last resort" to push the bloc into lifting sanctions against Russia.

This statement, completely overshadowed by the scandalous Trump-Putin Helsinki summit, brings into focus the politically precarious nature of the EU sanctions regime. More importantly, it highlights an inherent deficiency in the nature of the sanctions regime which demands remedy.

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  • Salvini threat showed fragility of EU position (Photo: quirinale.it)

The EU, United States, and several other nations imposed sanctions against Russia in an attempt to uphold international law and halt Moscow's unlawful aggression against Ukraine.

This act of solidarity with Ukraine has been the international community's strongest message to Moscow.

It has helped to contain Russia's war machinery, helping save thousands of Ukrainian lives, but it has not been enough to end Russia's violations of international law in Ukraine as the price Moscow pays remains trivial in proportion to the gravity of its violations in Ukraine.

The principal problem with the EU sanctions regime is that it rests on the failure to recognise Russia's interstate war against the Ukrainian state.

The result is an inherently flawed framework which does not pursue the right objectives - namely, to repress, reverse, and repair Russia's violations of international law in Ukraine.

Russia sanctions framework

The EU sanctions regime can be divided into two main blocks: restrictive measures for the annexation of Crimea; and economic sanctions for "Russia's actions destabilising the situation in Ukraine" in Donbas.

Each part pursues different objectives and differs in scope and conditions.

The main objective of the Crimea sanctions is to hinder Russia's effort to legitimise its annexation. Representing the EU's non-recognition of annexation, they consist primarily of travel and financial restrictions for nationals and business entities involved in the annexation.

The Donbas sanctions are the ones that truly bite. These economic sanctions are meant to facilitate the implementation of the Minsk Accords - the so-called peace deal for Ukraine's Donbas region.

Subject to biannual review, they include severe measures in the financial sector; an embargo on the import and export of arms and dual use goods and technology; restrictions on other exports in the energy sector; and suspension of economic cooperation programs.

The EU expected "the complete implementation of the Minsk agreements" by the end of 2015, but to date, Russia has not honoured its security obligations as outlined in the accord.

Moscow has failed to ensure a comprehensive ceasefire; to withdraw its armed formations from the 2014 Minsk memorandum line of contact; and, most critically, to withdraw "all armed formations, military equipment, as well as mercenaries from the territory of Ukraine."

As a result, the European Council has been extending economic sanctions every six months for the past few years.

Sanctions deficiencies

The EU sanctions regime suffers from a host of interrelated problems.

The biannual review process makes the entire sanctions regime vulnerable. There is a constant risk that sanctions can be lifted if any one member state uses its veto right.

Sanctions can be held hostage by the Russia-friendly agenda of various EU political actors who have made repeated calls for an end to these measures. Salvini's threat is a reminder of how easily EU unity could be shattered by just one bad actor.

The artificial distinction between Crimea and Donbas as separate issues, with separate sanctions regimes, is also problematic.

First, it validates Russia's strategy of camouflaging its invasion, leaving Kiev in a vulnerable position where it must battle the many consequences of the Kremlin-crafted narrative of a native uprising in Donbas which Russia merely supports.

Second, the teeth of the sanctions are related to the implementation of the Minsk Accords which fail to address the entirety of Russia's violations of international law in Ukraine. Even if Moscow chose to one day fulfil its security obligations under Minsk, it would not bring an end to the war or restore the territorial integrity of Ukraine.

Since Crimea sanctions are of little consequence to Moscow, Russia could continue to occupy Crimea and violate international law at a cost it can tolerate.

The EU's true commitment to upholding international law is undermined by a sanctions regime which provides virtually no incentive for Russia to unconditionally return Crimea to Ukraine, and cease all other violations of international law.

It is almost as though the EU is paying lip service to the principle that borders cannot be changed by force, while giving the Kremlin a silent nod that Crimea can be kept for a nominal price if Russia abides by Minsk.

But more worrying still is that for some political actors, even the conditions of the Donbas sanctions are open to change for Russia's benefit.

Less than a year ago, the then German foreign minister, Sigmar Gabriel, lobbied heavily to shift the condition for sanctions from the full implementation of Minsk to only the cessation of military hostilities.

This would have allowed sanctions to be lifted while Russia maintained its military presence on Ukrainian soil.

Another proposal making the rounds is that Donbas sanctions could be connected to the implementation of a UN peacekeeping mission, not the Minsk Accords. But the mere implementation of a peacekeeping mission would not mean the end of the war.

Given Russia's track record, it stands to reason that Moscow would continue undermining Ukraine's sovereignty even with the mission on the ground.

High time for proper solutions

The EU needs to rework its Russia sanctions regime, starting with officially recognising Russia's unlawful interstate war on Ukraine, and by decoupling sanctions from the Minsk Accords.

The EU should tie the entire complement of sanctions to the full restoration of Ukraine's territorial integrity and sovereignty, and to the cessation of all forms of Russia's multi-vector war (political subversion, terrorism, cyber attacks, information warfare, and economic pressure).

A meaningful set of sanctions should also be conditional on Russia paying full reparations for damage to infrastructure, harm to ecology, and compensation to all victims of its aggression, including for losses of property and business.

The scope of sanctions should be substantially expanded to include the same type of comprehensive sanctions applied to Iraq after it invaded Kuwait.

The double standard applied to Russia's invasion of Ukraine should be no more.

Sanctions should go as far as oil/gas for food and nuclear disarmament programs of the past to deprive Russia of funds for its war efforts, and to remove the nuclear threat Moscow uses to advance its aggressive geopolitical agenda.

Such a revised sanctions regime will be proportional to Russia's violations of international law, and will substantially increase Western leverage over Moscow.

The deadlock of Russia's aggression against Ukraine can be resolved only by tipping the scales back in favour of strict adherence to international law. Taking control of the sanctions regime is one of the best means of achieving this end.

Roman Sohn is a legal expert, columnist, and civil society activist in Kiev. Ariana Gic is an independent political and legal analyst and columnist in Toronto, Canada

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