The “smart sanctions” of the EU: The case of Zimbabwe

Sanctions are methods of diplomatic or economic nature which aim to change activities and / or policies related to violations of international law and / or human rights (STA), or in violation of the rule of law and / or democratic authorities. The “smart” or “targeted” sanctions aim to affect only the status of the Contracting State and its public leaders, as well as individuals who are directly or indirectly linked to it, without financially exhausting its population. Therefore, by their very nature, smart sanctions are against natural or legal persons and only indirectly against states, a fact that undeniably makes them a major breakthrough in the field of international law. [1] Smart sanctions may include both an obligation to freeze all funds and economic resources of the targeted persons, and the prohibition of giving funds and economic resources, directly or indirectly to them or to their advantage.

The European Union (EU) applies sanctions or restrictive measures to achieve the specific objectives of the Common Foreign and Security Policy (CFSP) as defined in Article 21 of the revised Treaty of the European Union [2]. Specifically, in §2 paragraph c) is clarified that “[the] Union shall define and apply common policies and actions, and works to achieve a high degree of cooperation in all fields of international relations, in order to preserve peace, prevent conflicts and strengthen international security in accordance with the objectives and principles of the United Nations Charter”.  In that regard, within the Union sanctions or restrictive measures are applied either on autonomous basis or in implementation of the binding decisions of the Security Council of United Nations (UN) [3].

With the Lisbon Treaty, the possible legal bases for the adoption of restrictive measures against individuals are Articles 75 [4] and 215 [5] of the Treaty on the Functioning of the EU (TFEU) [6], while this option seems to depend on the sanctions; if they are adopted by the UN list will be selected Article 215, while in the case of an autonomous status, Article 75.

In this context, in 2002 the EU Council Common Position 2002/145 / CFSP, due to the serious violations of Human Rights and democratic principles by the Zimbabwean government, sanctions were submitted for the first time, and since then are been reviewed every year [7]. Some of the restrictive measures against the country were implemented at Community level by Regulation No. 310/2002 of the Council [8] and the period of application was extended until 20 February 2004 to Regulation 313/2003 [9]. By Common Position 2004/161 / CFSP, as the government continued to commit serious abuses, in 2004 the Council considered it necessary to maintain restrictive measures against the government and people that had the main responsibility, as long as they were continued,  [10]. Based on this, the Council Regulation 314/2004 of article 6 was established, which provided the freezing of all funds and economic resources as well as the prohibition of direct or indirect distribution of funds or economic resources of natural and legal persons, entities or organizations on the annex list of the Regulation, including President Mugabe country R., about 200 senior officials of the African National Union of Zimbabwe-PF [Zimbabwe African National Union-Patriotic Front (ZANU-PF)], the former ruling party, as well as some state companies that had good relations with the ruling party [11]. The above restrictions would be extended, according to Article 1 of Decision 2010/92 / CFSP, until February 20, 2011, excluding this time from the list certain persons and entities such as the Industrial Development Corporation of Zimbabwe, the Zimbabwe Iron and Steel Company and Oryx Diamonds Ltd [12]. According to the Council announcement of February 16, 2010 to the persons, entities and bodies to whom the measures were implemented, it became possible to submit an application to the competent authorities of the EU Member States in order to obtain an authorization to use frozen funds for basic needs and specific payments [13].

Nevertheless, on February 18, 2013, even before the state elections-maybe they will take place this year-, the Union proceeded with a forced / early announcement of a partial lifting of the sanctions, in order to reward the political reforms [14]. Specifically, it was decided to lift the visa ban and freeze of assets of 51 individuals and 20 companies, while President Mugabe agreed to remain under restriction.

Although the drafting of a new constitution -at the end of last January the political leaders in Zimbabwe have reached an agreement on a draft constitution which will be voted on a referendum in March 2013- considered to be of a high importance, it is, however, insufficient in ensuring free and fair elections. Oppressive laws remain in the legal code of the country, security forces close to the government torturing and arbitrarily arrest activists of civil society and some state companies, including the Zimbabwe Mining Development Corporation (ZMDC) is still under sanctions by the Union and Anjin, the biggest diamond company in Zimbabwe, which has no restrictive measures, pay security forces ZANU-PF [15] which are responsible for committing electoral violence.

Upon signing, the achievement of greater transparency and accountability such as to ensure that ZANU-PF is impossible to maintain, though companies, parallel sources of revenue that could be used to undermine the elections, should be the elements that will permit the lifting or suspension of sanctions. If the Union wants to create a viable environment that respects the Human Rights, must rule on, only after Zimbabwe conduct credible, free and fair elections.

Missira Vassiliki

PhD European Policy at Panteion University

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[1] Papadopoulou E. P., “Smart sanctions and Community law: The” Suspended Step of the Community Courts’. Thoughts on the occasion of the judgments of the CFI Kadi and Yusuf / Al Barakaat of September 21, 2005, “Public Applications Law 2006, p. 3.

[2] Previously Article 11 TEU.

[3] Despite the fact that it is not bound by those decisions, since the EU is not a member of the UN, for Member States to meet their obligations arising from the UN Charter, shall, as part its competence and especially in the case where decisions related to KEPPA- the adoption of provisions required.

[4] “Where necessary to achieve the objectives of Article 67 on the prevention of terrorism and related activities and combating them, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall define framework for administrative measures on capital movements and payments, such as the freezing of funds, financial assets or economic resources owned or held by, natural or legal persons, groups or non-state entities. The Council, on a proposal from the Commission, shall adopt measures to implement the framework referred to in the first paragraph. The acts of this Article shall include necessary provisions on legal safeguards. ”

[5] Article 215 §1: «When a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union, provides for the interruption or reduction, in whole or in part, the economic and financial relations with one or more third countries, the Council, acting by a qualified majority on a joint proposal from the Union High representative for foreign Affairs and security policy and the Commission, shall adopt the necessary measures. Inform the European Parliament. ” §2 «Where a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union, the Council may take in accordance with the procedure in paragraph 1 restrictive measures against natural or legal persons, groups or non-state entities. ” §3 «The acts referred to in this Article shall include necessary provisions on legal guarantees.”

[6] Article 75 TFEU differs substantially from the former Article 60 of the Treaty establishing the European Community (TEC), limiting its use only to achieve the objectives of Article 67 (an area of freedom, security and justice), for prevention of terrorism and related activities and combating them, and in the new Article 215 TFEU provides the same as Article 301 TEC penalties adoption process, with the only difference that the first explicitly mentioned in power to take sanctions against persons and entities and taking any decision on a proposal not just the Commission and the EU High Representative.

[7] Council Common Position of 18 February 2002 concerning restrictive measures against Zimbabwe (2002/145 / CFSP), Official Journal of the European Communities, EE L, 21.2.2002, p. 1-3.

[8] Regulation (EC) No. 310/2002, of 18 February 2002 concerning certain restrictive measures in respect of Zimbabwe OJ L 50, 21.2.2002, p. 4.

[9] Regulation (EC) No. 313/2003 of 18 February 2003 extending Regulation (EC) No. 310/2002 concerning certain restrictive measures in respect of Zimbabwe, OJ L, 20.2.2003, p. 6 .

[10] Common Position 2004/161 / CFSP of 19 February 2004 renewing restrictive measures against Zimbabwe, EE L 50, 20.2.2004, p. 66.

[11] Regulation (EC) No. 314/2004 of 19 February 2004 concerning certain restrictive measures on Zimbabwe, EE L 55, 24.2.2004, p. 1

[12] Decision 2010/92 / CFSP of 15 February 2010 extending restrictive measures against Zimbabwe OJ L 41, 16.2.2010, p. 6-7.

[13] Council notice to the persons, entities and bodies to which restrictive measures provided for in Council Common Position 2004/161 / CFSP, 2010 / C 38/07.

[14] Council of the European Union, 3222nd Council meeting, Foreign Affairs, Provisional version Press 55, PR CO 8, Brussels, 18 February 2013, in http://www.consilium.europa.eu/uedocs/cms_Data/docs/ pressdata / EN / foraff / 135544.pdf, pp. 13-14.

[15] See Human Rights Watch at: http://www.hrw.org/africa/zimbabwe.

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