White Knight: Are sanctions against Ukraine’s former leaders legal?

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

EU sanctions against Ukraine officials are illegal under EU treaties, because they target people who have ceased to be part of the toppled regime, writes Andreas Geiger.

Andreas Geiger is a partner in Alber & Geiger, an advocacy and law firm that recently secured the release of two leading former Baku political and business personalities from imprisonment in Azerbaijan.

When it comes to fighting human rights abuse in countries where democratic standards are missing or ignored, most of us would associate lobbying activity with non-profit human rights organisations. For many years, NGOs have been advocating on behalf of genocide victims, imprisoned human rights activists, or simply individuals arrested on false grounds for political motives across the globe. These NGOs stand up for the allegedly poor ones in the world.

But there is another side of this lobbying business. It is growing. And it is surprising at first glance. It is the business of “White Knight” lobbying.

In countries with a lack of democratic history, former politicians often become the victims of their own reform agendas. Former businessmen who fall apart with their home country regime get imprisoned. Political opponents are put in jail after a government change. We just saw that happening in Ukraine again.

In most people's perception, these cases are somehow different from the Amnesty activist who gets beaten up by the police. This is because those people once were part of "the system" themselves. But exactly for that reason, they often have to suffer even more from persecution and intimidation by their political enemy who is now in charge, culminating in fake allegations by the system that toppled them, leading to imprisonment, ignoring national and international standards.

What those systems usually seek is revenge. Not justice. And often the new governments fear the old players too much to let them go free as well. So they lock them up. Possibly forever. Which can best be done without a proper trial.

Whoever these people are, and whatever they allegedly did, they deserve to be treated fairly in a civilized society. It is the civilized world's task to ensure that governments behave orderly. And it is the lobbyists' task to ensure that the civilized world doesn't forget to do so. Because sometimes it does. And sometimes it even becomes involved.

Ukraine is a good example, because international sanctions in this case even targeted people who have ceased to be part of the toppled regime. However, international sanctions should have one clear aim only. They must target political change. Like in Syria, Libya or Belarus. If the targeted government is gone already by the time sanctions are applied, those sanctions miss their goal. Or one might also say that they reached their goal before they were applied. In this case, political sanctions are neither legitimate nor legal anymore.

It is not the international community's task to assist a third country's new government in its revenge or prosecution attempts, by applying sanction mechanisms which were created for entirely different purposes. This is a task for the national courts. Or The Hague. But not for political sanctions, freezing bank accounts and implementing visa bans. Art. 215 TFEU was not made for this purpose.

Lobbying firms are, therefore, increasingly working to defend the human rights of former politicians and businessmen that find themselves in such situation. And rightfully so. These people need a “White Knight” to lobby their legitimate interests in places like Washington and Brussels, to ensure that pressure from those decision makers gives them a fair trial at home – or release from prison. And that they are not persecuted by the international community without proper legal basis.

A large number of those politically sanctioned or imprisoned people rely on lobbying services after all legal recourses in their home country have terminated. Political lobbying, following national and international judgments, helps increase the pressure, maintain the momentum and keep the cases on the agenda. Others try to ensure that things don't turn out bad for them in the first place. Which makes even more sense. In any case, they are not part of the lobbying efforts of NGOs. So they are left with no choice but to lobby individually and directly to the international community. This business will surely grow.

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