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You're reading: Serhiy Leshchenko: U.S. sanctions’ legal basis already in place

In November 2013, Ukrainska Pravda published a confidential letter from U.S. Secretary of State John Kerry to President of Ukraine Viktor Yanukovych. This was a friendly and optimistic letter – there was a promise to help with getting funds from the IMF, the reboot of a dialogue and even some hints about a proper meeting with President Barack Obama.

But Yanukovych forced Washington to completely change its evaluation of the Ukrainian president due to events that happened from October to December 2013. For the U.S. government, Yanukovych transformed into an aggressive and occasionally ‘inadequate’ authoritarian leader who is ready to drown his own country in blood in order to preserve his power, which provides him with uncontrolled enrichment.

These transformations have consequences. Sanctions are an instrument of last resort that halt relationships with a country. It is hard to approve such decisions but the United States has this experience. In contrast to the European Union, which must approve a decision only after acquiring the unanimous consent of all 28-member states, Washington is capable of reacting swiftly.

The United States’ officials have considerably changed their rhetoric regarding Yanukovych – they are warning about punishment if the president and his associates decide to use force against Euromaidan again. The word ‘sanctions’ has been repeatedly employed by many senators and, more importantly, by officials in the U.S. Department of State. A number of officials have supported the idea of targeted sanctions.

First is House of Representatives resolution bill №447 dated December 16, 2013 and signed by 6 congressmen, “... If the government continues to use force against peaceful protesters, the House of Representatives may consider targeted sanctions against those who ordered or were involved in the use of force.”

Second is Senate resolution bill №319 dated December 11, 2013 and signed by 11 senators, “... In case if the government continues to use force against peaceful protesters, the President of the United States of America and the Congress may consider the necessity of targeted sanctions, including visa restrictions and freezing assets of those persons responsible to ordering or committing violence.”

Third is a statement of Ben Cardin, Head of the U.S. Helsinki Commission, dated December 11, 2013, “If the government of Ukraine shall not act to improve the situation in the country, the international community should seriously consider the issue of conducting additional measures, such as targeted sanctions against Ukrainian officials responsible for violations of human rights, including suppressing peaceful protests.”

Fourth is a statement by John McCain, U.S. Senator from Arizona and a presidential nominee in 2008, dated December 19, 2013, “The President’s Administration and the Congress have to inform the Ukrainian people that further instances of violence and cases of human rights violations against peaceful citizens will be met with targeted sanctions against all those guilty. This is not an empty threat.”

Fifth is a statement by Jen Psaki, the spokesperson of the U.S. Department of State, dated December 11, 2013, “All options regarding Ukraine, including the issue of implementing sanctions, are on the table now.”

Certain members of the Ukrainian political establishment have the false impression that the United States has to approve a separate legal act or even a specific law akin to the Magnitsky Act that might take several years and tons of work in the Congress. In fact the legislative basis for implementing sanctions against Ukrainian officials already exists. There are at least two norms in U.S. law that enable Washington to punish Ukrainian officials and their family members through the revocation of current U.S. visas and prohibition against issuing new ones.

The first norm is explained in the Immigration and Nationality Act. Art. 212 (a)(3)(c) clarifies a range of persons who should be denied a U.S. visa:

Aliens that should not be issued a U.S. visa and given access on the U.S. soil:”

“... an alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.”

The United Stated had repeatedly used this practice of visa restrictions against those officials who were responsible for violations of human rights or attempted to seize power through a military coup or rigging elections. These people harmed not only their own countries but also U.S. geopolitical interests aimed to spread democracy as a universal value around the world. The sanctions also targeted family members of these officials.

According to this Act, regional sections of the State Department provide recommendations on whether to implement sanctions to the State Secretary. In case of Ukraine, this regional section is the Bureau on European and Eurasian Affairs led by Viktoria Nuland, Deputy Secretary of State.

Nuland is well informed about Yanukovych’s regime. She visited Ukraine three times in the past month and a half and saw how Berkut forces stormed Euromaidan with her own eyes. In essence, this operation looked like a slap in a face addressed to her, since such actions happening while the U.S. official was present demonstrated a complete neglect of Washington’s calls for a peaceful solution to the crisis.

It was Nuland who induced the Secretary of State Kerry to use the word ‘disgust’ when he described the storming of Euromaidan in his statement. In fact she wrote the statement while in Kyiv, which was quickly spread by the Secretary of State. Therefore, it is no big deal for Nuland, as Ukraine’s curator in the U.S. Department of State, to provide a list of Ukrainian officials responsible for the organization and execution of anti-democratic decisions.

Another legal base for sanctions against Ukrainian officials is Presidential Decree №7750 signed by George W. Bush in 2004. It focuses on corrupt officials who attempt to get to the United States, as well as on those who falsified elections and who put pressure on the judicial branch. According to its formulation, this decree can ban a number of Ukrainian high-rank officials from entering the United States.

“The entry into the United States, as immigrants and nonimmigrants, of the following persons is hereby suspended:

a)  Public officials or former public officials whose solicitation or acceptance of any article of monetary value, or other benefit, in exchange for any act or omission in the performance of their public functions has or had serious adverse effects on the national interests of the United States.

a)  Persons whose provision of or offer to provide any article of monetary value or other benefit to any public official in exchange for any act or omission in the performance of such official’s public functions has or had serious adverse effects on the national interests of the United States.

a)  Public officials or former public officials whose misappropriation of public funds or interference with the judicial, electoral, or other public processes has or had serious adverse effects on the national interests of the United States.

a)  The spouses, children, dependent household members of persons described in paragraphs a), b), c) above, who are beneficiaries of any articles of monetary value or other benefits obtained by such persons.”

The serious curtailment of the democracy and human rights that comprise Washington’s foreign policy doctrine is also included in President Bush’s decree as actions that may cause “serious adverse effects for the national interests of the United States.”

The publication of the names of the people who were targeted by U.S. sanctions was prohibited. The only thing that Ukrainska Pravda succeeded in finding out was that it was precisely this act which banned one of Surkis brothers from entering the United States.

In total, the U.S. Department of State reported in 2007 that Decree 7750 was used from 2004 “a dozen times”. There is information that U.S. visas were revoked from the state officials of Kenya, Cambodia and Nigeria. This list might expand to include surnames no less exotic for the American ear, such as Kluyev, Zakharchenko or Lyovochkin.

Original in Ukrainian on the Ukrainska Pravda website: 

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