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On August 16, 2020 the “Freedom March” organized in Minsk became one of the largest public demonstrations in Belarus’ history. The march aimed to protest against the results of the presidential election held on August 9, 2020. The Belarusian political opposition, its supporters and a large section of the international community claim that the election returning to office Aleksander Lukashenko, a President in power since 1994, was rigged and have severely rebuked the national authorities for the action taken to crush the protest movements.
In this context, in order to strengthen the existing European and American economic sanctions regimes targeting Belarus (1), the European Union, in coordination with the United States and the United Kingdom, imposed new economic sanctions measures in early October 2020 against individuals linked to the current Belarusian regime (2).
1. A short round-up of key elements relating to the economic sanctions regimes against Belarus
1.1. Presentation of the European sanctions framework
The European sanctions framework against Belarus has been in place since 2004. The first individual restrictive measures were adopted against four Belarusian nationals involved in the disappearance of two opposition politicians, a businessman and a journalist during the period 1999 to 2000.1
Then, in 2006, the European Union (“EU”) adopted individual measures against President Lukashenko and certain other Belarusian officials under Regulation (EC) No. 765/2006 of May 18, 2006.2 These designations were in response to irregularities in the results of the March 19, 2006, presidential election and the arrest of peaceful demonstrators protesting the lack of democracy in the electoral process that led to Lukashenko’s continuation in office.
These individual measures took the form of (i) freezing funds and economic resources owned or controlled by individuals or legal entities listed in Annex I of the Regulation, and (ii) prohibitions on entering EU territory.
However, the majority of these individual measures were lifted in February 2016, leaving only those against the four people mentioned above in force.3 This reshuffle was the result of the effort made by the Belarusian government to improve its relations with the EU, including release of political prisoners and holding of violence-free presidential elections in 2015.4
Subsequently, the EU expanded its Belarusian sanctions regime in 2011 by adopting restrictive measures on certain goods against any individual or entity located in or for use in Belarus. These measures include:
On February 17, 2020, the EU Council announced that these economic sanctions would be extended by one year until February 28, 2021.5
1.2. Presentation of the U.S. sanctions framework
After also questioning the regularity of the Belarusian presidential elections of March 2006, the United States (“U.S.”) adopted Executive Order no. 13405 on June 16, 2006,6 imposing asset-freezing measures on individuals or legal entities:
A total of sixteen (16) people, including Alexander Lukashenko, are targeted by individual U.S. restrictive measures against Belarus.
2. Forthcoming reinforcement of economic sanctions against Belarus
On August 9, 2020 Alexander Lukashenko won the Belarusian presidential election for the sixth time in a row, supposedly with almost 80% of the votes. In office since 1994, the incumbent President was well ahead of his main opponent, Svetlana Tikhanovskaya, who was said to have received only 10% of the votes.7
However, the opposition candidate rejected the initial result. She questioned the legitimacy of the democratic process by alleging fraud from her opponent. These challenges are rooted in a very tense climate with continued state repression against opponents of the current political regime. In this regard, associations such as Amnesty International8 accuse the current Belarusian government of a “massive attack” on human rights (for example, arbitrary detention and imprisonment). These associations cite, for example, the fact that peaceful protests following the election results were violently suppressed by the authorities throughout the country with more than seven thousands (7000) arrests and the deaths of at least two (2) men.9
These fears for human rights and democracy are shared by a part of the international community, which has taken strong measures - through economic sanctions - to force Alexander Lukashenko into dialogue.
2.1. The European Union
Following the results of the presidential election, the European Union quickly organized several meetings to discuss the political situation in Belarus with the aim of finding remedial solutions to support its people.
Accordingly, on August 14, 2020 the EU foreign ministers met in a context of “violence, repression and falsification of election results,” to condemn such breaches of the fundamental democratic principles of the rule of law and human rights.10 An extraordinary summit of the European Council held on August 19, 2020 simply confirmed the rejection of the vote, describing the election as “neither free nor fair.”11
As a response, the EU has announced, among other things, its willingness to impose targeted economic sanctions against the perpetrators of these actions. The President of the European Commission, Ursula von der Leyen, stated in this regard that the list of sanctioned persons would be adopted “as soon as possible.”12
Pending formalization of the EU restrictive measures, the European Parliament invited the Council, in a resolution passed on September 17, 2020,13 to follow the example of the Baltic States (Estonia, Latvia and Lithuania), which included Lukashenko and twenty nine (29) other Belarusian officials on their national sanctions lists by designating (i) “a substantial number” of high and middle-ranking government officials, as well as (ii) companies known to support the regime. The European Parliament also invited the Council to consider the option of sanctioning Russian citizens supporting the current government. In this way, it urged the Commission and the European External Action Service to revise the Belarus sanctions framework to support the Belarusian people and also call for a freeze on any transfer of funds to the current government or any projects its aims to conduct.
After a veto from Cyprus, on September 2, 2020,14 the twenty-seven (27) European leaders met at an extraordinary summit in Brussels and succeeded in reaching a consensus on October 2, 2020 pursuant to which forty (40) Belarusian officials were designated on EU restrictive measures lists.15 The implementing Council Regulation (EU) No. 2020/1387 adds these names on the list of individuals and entities subject to restrictive measures in Annex I of Regulation (EC) No. 765/2006 and provides asset freeze measures as well as prohibitions to enter EU territory for designated individuals. It should be noted, however, that Lukashenko is not on the list of sanctioned persons, although the option of tightening the measures has not been ruled out.
In addition, and alongside the United Kingdom and the United States,16 the European Parliament had also, pursuant to resolution dated September 17,17 requested the opening of an investigation concerning potential crimes committed by the Belarusian government. Seventeen (17) Member states of the Organization for Security and Cooperation in Europe (OSCE) invoked the Moscow mechanism to set up an expert mission to prepare a substantive report on human rights abuses and violations in Belarus.
Finally, on October 12, 2020 the EU Council adopted conclusions in which it reaffirmed the EU’s support for the sovereignty and independence of Belarus, as well as for the democratic freedoms and rights of Belarusian citizens.18 The foreign ministers confirmed that Alexander Lukashenko has no democratic legitimacy and gave the political go-ahead for further economic sanctions, including against Lukashenko and other high-ranking officials.19
2.2. United States
On the other side of the Atlantic, the U.S. Secretary of State, Mike Pompeo, announced on August 13,20 that the United States had not ruled out imposing economic sanctions in reaction to the current political situation in Belarus either. The US government has therefore considered restrictive measures against U.S. oil exports to Belarus.21 To this end, and in order to provide a multilateral response, the Secretary of State stated that the United States would work closely with the EU on appropriate future measures to be adopted.
Along these lines, on September 11, the U.S. Deputy Secretary of State, Stephen Biegun, indicated that Washington was coordinating with its European partners to ensure “accountability for those involved in human rights abuses and repression in Belarus.” 22
In the face of the Cyprus veto on the EU side, the United States delayed the imposition of sanctions against Belarus, pending joint action with the EU. The consensus reached at the European Council of October 2, 2020 accelerated U.S. decision on October 6, 2020 to designate, twenty five (25) Belarusian officials on the SDN List, pursuant to Executive Order No. 13405, freezing the assets of the persons listed in the Annex to said Executive Order.
2.3. United Kingdom
Following its Brexit decision, the UK has been working to build its own rigorous British sanctions regime.
In this regard, the British Secretary of State for Foreign Affairs, Dominic Raab, had also given assurances as early as August 17, 23 that the UK would collaborate with its international partners to sanction those responsible and request explanations from the Belarusian authorities.
Within the framework of coordinated action with Canada, the United Kingdom went a step ahead of its European neighbors and U.S. counterpart by deciding on September 29, 2020 to impose sanctions with immediate effect against eight (8) members of the Belarusian regime, including Alexander Lukashenko and his son, Viktor Lukashenko.24 It is the second time that the UK is imposing sanctions pursuant to its new sanctions regime against human rights violations adopted in July 2020 (A forthcoming alert will analyze this regime in detail alongside the U.S. and future EU sanctions regime for human rights violations.)
2 Regulation (EC) no. 765/2006 of the Council of May 18, 2006 – consolidated version. https://www.tresor.economie.gouv.fr/Institutionnel/Niveau3/Pages/562eb398-b68c-4048-bc00-586b218640c2/files/3ec98e92-5868-45a3-ae9d-11a15aa949e3
6 Executive Order 13405, Blocking Property of Certain Persons Undermining Democratic Processes or Institutions in Belarus, June 16, 2006. https://www.treasury.gov/resource-center/sanctions/Documents/13405.pdf
13 Resolution 2020/2779 (RSP) of September 17, 2020. https://www.europarl.europa.eu/doceo/document/TA-9-2020-0231_EN.pdf
14 Aiming to put pressure on the EU because of gas drilling by Turkey in Cypriot waters.
15 While ensuring their support for Cyprus and also Greece in this territorial conflict.
17 Résolution 2020/2779 (RSP) du 17 septembre 2020. https://www.europarl.europa.eu/doceo/document/TA-9-2020-0231_EN.pdf