BY
Almost as a cast iron rule this blog has steered
widely from profanity and also popular Internet slang/abbreviations.
Today’s entry however will transgress that rule.
It has been strongly
rumoured, and indeed appears on the Facebook page of Dmitry
Tymchuk (for
whatever credence that may provide) that the Verkhovna Rada Committee on
National Security and Defence has registered Draft Resolution 5274 – a
Resolution that seeks to place sanctions upon Ukrainians, almost all of whom
are in Ukraine, for “….the
creation of real and/or potential threats to Ukraine’s national interests,
national security, sovereignty and the territorial integrity of Ukraine, to
promote terrorist activities …”
Apparently the draft
Resolution lists 15 individuals – the usual suspects such as Viktor Medvedchuk,
Dmitry Firtash, Konstantin Grigorishin, Alexander Klimentko, Oleg Derisaska etc.
How often are citizens within their country sanctioned
by their own government for acts they are conducting within that country that
are perceived to seriously harm the territorial integrity and sovereignty of
that country?
Sanctions?
Sanctions are almost
exclusively a tool of foreign policy and almost never a tool of domestic
control – for domestic control is conducted via jurisdiction and rule of law.
There are criminal laws
within the Ukrainian statute books that are specifically designed to deal
with “….the creation of real and/or potential threats to
Ukraine’s national interests, national security, sovereignty and the
territorial integrity of Ukraine, to promote terrorist activities …”.
Sanctions?
Surely if these
individuals have “created real
and/or potential threats to Ukraine’s national interests, national security,
sovereignty and the territorial integrity of Ukraine, or promote terrorist
activities” then
any individual case with sufficient evidence for implementing sanctions also
posses sufficient evidence to investigate them under some particularly serious
legislation.
If there is a gaping
hole within the criminal legislation and it is necessary to plug it then the
coalition is still capable of garnering 226 votes to pass legislation that will
fill the gap.
Sanctions are not an
extrajudicial instrument of proscribed punishment, but a tool which is employed
to change the direction, or at least cause pause for thought, for those
subjected to them and are almost always are applied to those that are beyond
the jurisdiction of the applying entity. Thus is this tacit
acknowledgement by the Ukrainian State that there are still Ukrainians who are
public figures within Ukraine and who are perceived to be acting against the
interests of Ukrainian sovereignty and territorial integrity that nevertheless
fall beyond its ability to apply the rule of law, and by extension its domestic
jurisdiction?
Arguably applying
sanctions to Mr Firtash, currently oligarch-in-exile in Vienna, could be deemed
reasonable as he is beyond the jurisdiction of Ukraine. However, if Mr
Firtash returns, Ukraine would arrest him and then hand him over to the US
where he is, and will remain, wanted – for so far as this blog is aware, there
are currently no court cases pending for Mr Firtash within Ukraine for offences
committed on its territory (particularly so with regard to the substance for
which he may yet be sanctioned), hence extradited to the US he would swiftly
be.
Of the others upon the
list within the draft Resolution almost all currently remain within Ukraine.
They are thus to be sanctioned in lieu of criminal investigation and due
process (despite the seriousness of the grounds for sanctions within the draft
Resolution)?
The proposed sanctions
are therefore to be employed as punishment avoiding criminal investigation and
due process justified due to the absence of legal integrity – despite therefore
questionable legitimacy? If so, is that because of a lack of will to launch
such investigations, or perhaps because it is felt that there would be
insufficient evidence for conviction, or because the judicial system can still
be bought – therefore personal sanctions by Ukraine upon Ukrainians residing in
Ukraine are a justified Plan B? (If so ECfHR get ready for further
Ukrainian cases.)
Also listed within draft
Resolution 5274 are about a dozen companies/corporations/business entities.
Some such as Rosneft are
clearly headquartered without Ukraine as are the owners/top tier management.
Others (Group DF, News Media Holdings etc), most of the entities listed are owned by those
individuals also listed, are headquartered within Ukraine or otherwise have a
reasonable physical presence.
In the cases where there
is a corporate physical presence within Ukraine, sanctions would again appear
to be a soft and/or part solution considering the gravity of the accusations.
Sanctioning those entities in their entirety may be reasonable when
considering the entity parts active outside Ukraine, but there are surely
harder legislative options for the parts that are physically present in Ukraine
and do indeed “create real and/or potential threats to Ukraine’s
national interests, national security, sovereignty and the territorial
integrity of Ukraine, or promote terrorist activities”.
Will other nations
sanction those listed for sanctions in Ukraine and by Ukraine when they would
probably expect these people to face criminal investigation for such serious
allegations instead? Does this proposed sanctions Resolution not make the
Ukrainian State look domestically rather weak – or at least appear far weaker
than is actually necessary?
Another question other
nations will be asking is why only now is this policy being pursued?
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