Time for the EU to Include Conditionality in Its Belarus Sanctions

Discussions are still ongoing on the fourth package of sanctions by the European Union in response to the falsified 2020 presidential election and subsequent crackdown on civil society and the political opposition in Belarus. The previous rounds of sanctions resulted in travel bans and asset freezes against 88 persons and seven legal entities. This is much less than the EU sanctions in response to the 2010 rigged presidential election, which targeted 243 individuals and 32 entities. The EU’s reaction is disproportionate considering that the level of repression in 2020 was significantly higher with over 35,000 detained in contrast to approximately 3,000 arrests in 2010. The United States, the United Kingdom, Canada, and the Baltic states also enacted their own Belarus sanctions as a response to the 2020 political crisis. Switzerland, Iceland, Liechtenstein, Norway, and some Western Balkan states have aligned themselves with the EU sanctions regime. In total, 327 Belarusians are under sanctions worldwide. However, questions remain as to whether those sanctions can achieve more than just signaling and stigmatizing, and eventually coerce the Belarusian authorities to change their behavior.

There is a substantial difference between the EU and U.S. sanctions. The United States has recently relied on secondary sanctions (for example, against Cuba and Iran, or in relation to the Nord Stream 2 pipeline) that have extraterritorial effects and apply not only to U.S. nationals or U.S.-based companies. Enforcing them might be difficult if the target has no real link with the United States, but it is possible if a company has a U.S. subsidiary, U.S. citizens on its board, or originates transactions in U.S. dollars. Therefore, the potential renewal in June of U.S. sanctions against nine Belarusian state-owned companies, which had been suspended in 2015, is a greater source of concern for Minsk than the EU sanctions. For instance, Russian oil exporters may suspend supplies to the Naftan refinery over the announced U.S. sanctions on Belarus. Back in 2007 some U.S.-based firms, such as the trading arm of Exxon Mobil, avoided buying from the EU Belarus-sourced products that were on the U.S. sanctions list because of concerns that the U.S. sanctions would apply.

The EU needs to find a way to enhance the efficiency of its sanctions against Belarus. Extraterritorial sanctions are not an option as the EU views these as unlawful. At the same time, EU sanctions can be strengthened by applying a strict conditionality whereby any suspension must be linked to progress in restoring the rule of law and resolving the ongoing crisis. Unlike on previous occasions, the EU must maintain its principled values-based approach to Belarus by making it clear that there is no possible return to business as usual unless several conditions are fulfilled. These are the end of violence and repression, the release and rehabilitation of 363 political prisoners, bringing to justice those responsible for killings of peaceful protesters, torture and unhuman treatment, and the start of an inclusive national dialogue.   

This conditionality must be clearly articulated in EU official documents and positions, notably Council of the EU decisions and regulations, laying down sanctions against Belarus. Sanctions are traditionally accompanied by the reasons for enacting the sanctions framework, and provide specific and concrete explanation why someone falls under specific listing criteria. In addition to these procedural requirements, the EU legal framework should indicate under what circumstances sanctions can be suspended. Stating straightforward and precise conditions for the suspension of sanctions is crucial for incentivizing the Belarusian regime’s behavior change—even though it is hard to believe that this discredited regime can still change. The least the EU can do is to articulate its principled position and stop any financial or political cooperation that could prolong its survival.

The EU did attempt previously to apply such conditionality to its sanctions against Belarus. For instance, the 2004 sanctions against four officials allegedly responsible for the disappearance of two opposition politicians, one businessman, and one journalist and the subsequent obstruction of justice were conditional upon starting an investigation and bringing those responsible for the crimes to justice. The next round of sanctions enacted the same year in response to the parliamentary elections and constitutional referendum was conditional on bringing the country’s Electoral Code in line with its OSCE commitments and other international standards as well as ensuring respect for human rights.

Two more conditions were added after the 2006 presidential election, which was marked by a new round of repression. Notably, in conjunction with the previous requirements, the suspension of sanctions was linked to the speedy release and rehabilitation of all political detainees and the conduct of future elections. However, it was another form of EU conditionality that triggered Belarus’s slight turn to the West in 2008. The release of political prisoners was used as “currency” in exchange for Western loans and the inclusion of Belarus in the EU’s Eastern Partnership in 2009.

The short period of normalization ended with the 2010 presidential election followed by the renewal of sanctions as a reaction to electoral fraud and a crackdown on civil society. The EU sanctions enacted in January 2011 were not accompanied by strict conditionality. Instead the Council of the EU pledged to regularly reexamine the situation in Belarus and to evaluate any improvements the authorities may have made toward respect for democratic values. This open-ended conditionality proved inefficient in bringing any tangible progress in democratizing Belarus. Against the backdrop of the Ukraine crisis, the EU toned down its rhetoric on the human-rights situation in Belarus, fearful of Russia’s potential actions and the country’s loss of sovereignty. And once more the EU limited its demands for the suspension of sanctions in 2015 to the release of political prisoners.

The lack of consistency in the EU’s use of sanctions lead to a circularity in relations with Belarus, with the release of political prisoners serving as the main criterion for the suspension of sanctions in 2008 and 2015, whereas the compliance with other conditions was largely overlooked. The EU must send a clear signal to the regime that trading political prisoners for the lifting of sanctions is unacceptable. As long as Minsk is not ready to respect the fundamental rights of Belarusians, sanctions should remain in place, just like the targeted measures against the four officials allegedly responsible for forced disappearances. These restrictive measures have never been suspended because of lack of any willingness by the Belarusian authorities to investigate the crimes in question.

By including conditionality in its Belarus sanctions, the EU should pursue first and foremost the objective of protecting the fundamental rights and freedoms of Belarusians. The disrespect for human rights across EU borders should not be tolerated in the name of pragmatic security considerations. Conversely, the EU would be compromising on its own values and foreign policy objectives as enshrined in its founding treaties.