The European Union’s Sanctioning of Russian Military Officers: An Urge for Caution

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Introduction

As of 21 July 2022, the European Union (EU) has adopted seven rounds of restrictive measures (commonly referred to as ‘sanctions’) against the Russian Federation following its full-scale invasion of Ukraine in February 2022. The latest two rounds (adopted on 3 June and 21 July 2022, respectively) – in addition to containing measures aimed at harming Russia’s economy – target certain Russian military officers with asset freezes and EU entry bans. Notably, those listed on 3 June were described by the European Commission’s President Ursula von der Leyen as ‘high-ranking military officers and other individuals who committed war crimes in Bucha and who are responsible for the inhuman siege of the city of Mariupol’. Notwithstanding the abundance of evidence indicating the perpetration of international crimes by Russian forces in Bucha, Mariupol (at p. 36) and elsewhere, the sanctions’ assertion of international criminal responsibility prior to any judicial process for many of those listed is problematic from the perspective of international law.

Following an analysis of the measures taken against Russian military officers on 3 June and 21 July 2022, this post focuses on those sanctioned due to an asserted responsibility for international crimes. It is argued that sanctioning military officers on the assumption of international criminal responsibility impacts their due process rights, may undermine wider accountability efforts in Ukraine, and misrepresents the legal notion of command responsibility.

EU Sanctions against Russian Military Officers

Autonomous EU sanctions – those created without a United Nations Security Council mandate – are typically created by the Council of the EU through a binding Decision (TEU, Art. 29) and an Implementing Regulation (TFEU, Art. 215) based on proposals from the High Representative of the Union for Foreign Affairs and Security Policy and/or the European Commission (here). The EU describes its sanctions as ‘non-punitive’ with the general objective of ‘bring[ing] about a change in policy or activity’ of targeted parties ‘in line with the objectives set out in the [respective] CFSP [common foreign and security policy] Council Decision’ (here, Annex I, preamble). The Russian military officers sanctioned on 3 June and 21 July were added to the Annex of Council Regulation (EU) No 269/2014, a sanctions regime established in March 2014 during Russia’s de facto annexation of Crimea ‘in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine’.

Of those sanctioned on 3 June, 45 are officers (the ranks of Major, Lieutenant-Colonel, and Colonel) of the 64th Separate Motorised Rifle Brigade of the 35th Combined Arms Army (here, nos. 1111-1155). The Brigade is described within each listing as having ‘killed, raped and tortured civilians in Bucha, Ukraine’ (ibid.). It is moreover stated that ‘[t]hese atrocities constitute crimes against humanity and war crimes’ and that each respective officer ‘was leading the actions of his military unit’ (ibid.). For one officer, Colonel Omurbekov, it is further specified that ‘[h]e was… nicknamed “the Butcher of Bucha” due to his direct responsibility in killings, rapes and torture in Bucha’ (ibid., no. 1111). Colonel-General Mizintsev, Head of the National Defense Control Center, is also listed, ‘nicknamed the “Butcher of Mariupol”’, and ‘accused of orchestrating the bombardments of the city of Mariupol, killing thousands of civilians…’ (ibid., no. 1157). Notably, he is ‘accused’ rather than assumed ‘responsible’ and there are no references to international crimes in his listing.

Of those sanctioned on 21 July, 12 are described as highly-ranked Russian military officers (e.g., Commanders) of the National Guard (Rosgvardia) or Aerospace Forces (here, nos. 1183-1191, 1209, 1211, and 1212). In the Rosgvardia officers’ listings (ibid., nos. 1185-1191), it is stated that ‘[u]nits of the [Rosgvardia]…. have also taken part in the killing, rape and torture of civilians in Bucha…’. However, the officers are not said to be responsible for the actions of their units and there is no reference to international criminal legal language. Deputy Commander-in-Chief Maksimtsev of the Aerospace Forces is described as ‘responsible for the actions of this unit’ (ibid., no. 1209) yet there are no references to international crimes in his or any of the 21 July listings.

Every officer’s listing from 3 June and 21 July concludes by stating ‘he is responsible for, supporting or implementing actions or policies which undermine or threaten the territorial integrity, sovereignty and independence of Ukraine, or stability or security in Ukraine’. Ostensibly, this ensures that each listing remains within the parameters established by the original Council Regulation.

Notwithstanding the overall legality of EU autonomous sanctions (see Gestri, pp. 75-76), sanctioning Russian military officers is not inherently problematic and may fulfil the sanction regime’s aims of preventing further violations of Ukraine’s ‘territorial integrity, sovereignty and independence’. However, the introduction of international criminal responsibility language into the listings complicates matters. For instance, it is unclear why the 64th Brigade’s officers are deemed responsible for leading their units’ perpetration of international crimes in Bucha (here, nos. 1111-1155) while the Rosgvardia officers’ listings from 21 July, which also cite ‘killings, rape and torture of civilians in Bucha’, do not assert the officers’ responsibility for their units nor term the underlying conduct as constituting international crimes (here, nos. 1185-1191). It is likewise unclear why Colonel-General Mizintsev is simply ‘accused’ of ‘killing thousands of civilians’ in Mariupol rather than deemed responsible (here, no. 1157). As asserting the international criminal responsibility of many of the officers (namely, nos. 1111-1155) raises fundamental questions, these listings form the focus of the remainder of this post.

Implications of Asserting Criminal Responsibility

Firstly, although EU sanctions are an inherently political tool, all EU institutions are required to respect the EU’s principles externally, including ‘democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity… and respect for the principles of… international law’ (TEU, Articles 2, 21, and 205). In addition, both the EU Charter of Fundamental Rights (EUCFR) and the European Convention on Human Rights (ECHR) apply to Member States while implementing sanctions. Although this post is too brief to examine every human right that asset freezes and travel bans can impact (generally, see here and here), the sanctions against officers of the 64th Brigade provoke human rights concerns similar to the sanctioning of (alleged) terrorists, for instance the right to judicial review and to property (Scheinin, paras. 30-42; the Kadi saga). Furthermore, particularly relevant in the present case – where international criminal responsibility is asserted – are due process rights, namely the right to a fair trial and the presumption of innocence (ECHR, Art. 6; EUCFR, Arts. 47 and 48). Although sanctions do not constitute a traditional criminal charge usually required to trigger the full right to a fair trial, it can be triggered when the impact of the sanction on an individual is similar to criminal measures (here, para.  15), especially when the sanction targets conduct ex post facto (Al-Nassar et al, pp. 16-17). In the present case, asserting – rather than alleging – responsibility for (inherently serious) international crimes likely has a negative reputational effect on those targeted and is focused on past conduct, thereby potentially triggering and violating the full right to a fair trial.

Secondly, on a more practical level, although sanctions can be used to complement criminal justice efforts, the assertion of criminal responsibility for many of those listed may undermine the EU’s other efforts to pursue accountability for international crimes in Ukraine, for instance the provision of €7.25 million to the International Criminal Court’s investigation into the Ukraine situation. Indeed, the EU’s assertion of criminal responsibility of the 64th Brigade’s officers (here, nos. 1111-1155) could foreseeably impact the likelihood of achieving successful prosecutions against them if they are ever charged and brought to trial for the crimes alleged. As highlighted by Coleman, ‘language matters’: undermining the presumption of innocence by declaring individuals responsible for international crimes may result in trials being dismissed by significantly undermining their presumption of innocence.

Further Implications: Command Responsibility

The sanctions’ vague use of international legal concepts, particularly relating to military officers’ responsibility for international crimes, is also problematic. To begin with, the listings do not specify whether the officers of the 64th Brigade are assumed responsible for the cited international crimes themselves (e.g., by ordering their soldiers to commit international crimes) or via ‘command responsibility’: when a military commander fails to either i) prevent their subordinates perpetrating international crimes, or ii) discipline those responsible once such conduct comes to their attention (ICC Statute, Art. 28(a)). The listings simply state that the 64th Brigade committed international crimes and that the respective officer was ‘leading the actions of his military unit’ (here, nos. 1111-1155). Even where international crimes are not cited, other officers are deemed ‘responsible for the actions’ of their unit (here, no. 1209). Assuming that at least some of the listings utilise the notion of command responsibility as a basis, importantly, one of command responsibility’s key requirements is that the commander operated effective control over those under their command at the relevant time (Quénivet), understood as the ‘actual possession or non-possession of powers of control over the actions of subordinates’ (Delalić et al, Trial Judgement, para. 370). In practice, a case-by-case analysis of commander-subordinate relationships is therefore required. Undeniably, many of the officers sanctioned will likely fulfil the elements of command responsibility for international crimes committed in Bucha. Indeed, the Russian military has a consistent history of tolerating – and ordering – the commission of serious international humanitarian law violations in similar circumstances (Riepl, pp. 291-292). Nevertheless, embracing a general assumption of command responsibility for all Russian military officers commanding units active in areas where international crimes are allegedly committed dilutes the principles of command responsibility. This is especially concerning as command responsibility is accepted as a key method of ensuring commanders prevent war crimes and other international crimes during armed conflict (Halilović, Trial Judgement, para. 39; Quénivet).

Conclusion

The EU’s sanctioning of Russian military officers is not inherently problematic. In fact, such sanctions may legitimately work to counteract Russia’s ongoing war of aggression against Ukraine. However, if the values of human rights and the rule of law – as enshrined within the EU treaties – are to be preserved, EU sanctions must respect the key principles of international criminal law and the rights of those targeted. For example, simply refraining from asserting international criminal responsibility – as done in the EU’s 21 July listings (here) – remedies the majority of the concerns raised in this post. As the EU considers its response to the clear perpetration of heinous international crimes, caution must be exercised in the framing of sanctions to ensure their legitimacy, legality, and effectiveness.

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Comments

Kevin Jon Heller says

August 5, 2022

Genuine question -- are there any examples of national or international courts dismissing a case because an external political body like the EU previously deemed the defendant(s) responsible for international crimes?

James Patrick Sexton says

August 10, 2022

Hi Kevin, thanks for the question.

To my knowledge, no (although this is certainly something worthy of further research). The reason that I raise the point here, however, is as part of my wider critique relating to the language used within the sanctions themselves. For instance, if one compares the language used in some of the 3 June 2022 sanctions addressed in my post ('killed, raped and tortured civilians', 'these atrocities constitute crimes against humanity and war crimes', 'he was leading the actions of his military unit') with the EU's listing of Radovan Karadžić, Ratko Mladić and Ante Gotovina in 2004 (described in the preamble to Council Common Position 2004/694/CFSP as 'persons at large [who] continue to evade justice for crimes for which the ICTY has indicted them'), there is a significantly less degree of circumspection in the EU's most recent sanctions, especially those from 3 June 2022.

Indeed, while the 2004 sanctions could have used the description of 'alleged crimes' instead of 'crimes', the 2004 sanctions are, in my opinion, significantly less detrimental to the accused than the assertion of international criminal responsibility present in the sanctioning of certain Russia military officers.

As other unilateral sanctions regimes - so-called 'Magnitsky Sanctions' (or, in the EU, the Global Human Rights Sanctions Regime) - have also recently began utilising similar language that (arguably) verges on the assertion of (international) criminal responsibility, I think that the consideration of trial dismissal on this basis will become more of an issue in the near-future, if/when those sanctioned are brought to trial.