2 June 2021

How to lose friends and alienate nations

With its clear disregard for legal norms, Belarus takes its rogue state status up a gear

Partner John Binns and associate Suzanne GallagherSuzanne Gallagher of the Sanctions and Extradition team at BCL Solicitors explain how Belarus’ recent actions demonstrate how not to seek an arrest, as well as how to invite international sanctions.

An unscheduled layover

Last week, Ryanair Flight FR4978 was en route between two EU capitals (Athens and Vilnius, the capital of Lithuania) when it was intercepted by a fighter jet from Belarus. Early reports indicate it was Belarusian air traffic control that informed the pilots of a potential security threat on board. They were then given instructions to divert to Minsk. On board, 171 passengers and crew members experienced an unscheduled layover of just under six hours. Roman Protasevich (a 26-year-old journalist from Belarus), and his girlfriend Sofia Sapega (a Russian national), were forcibly removed from the plane by Belarusian officials. Roman Protasevich is known for his criticism of President Alexander Lukashenko and is said to have played a key role for the opposition in the August 2020 presidential election. That election was “not transparent, free or fair”, according to a report of the Organisation for Security and Cooperation in Europe, dated November 2020, a conclusion shared by the EU.

The incident has been widely condemned by the international community and government officials, as well as Ryanair. It has been described as state-sponsored hijacking, air piracy and kidnapping. From a diplomatic perspective, an incident involving an Irish airline, a Polish registered plane and a cabin full of EU nationals is a disaster. But there is a legal perspective too. Belarus may be in breach of its obligations under international conventions – and has invited the use of various international sanctions – by acting as it did, rather than seeking the arrest of Mr Protasevich by legal means.

Defied convention

The International Civil Aviation Organization (ICAO), an agency of the United Nations, has publicly stated that Belarus could be in breach of the Chicago Convention. This Convention, finalised on 7th December 1944, is also known as the Convention on International Civil Aviation. The ICAO did not detail how Belarus may have breached the Chicago Convention, but under Article 3 bis “States must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of the persons on board and the safety of aircraft must not be endangered.”  By sending a MiG-29 fighter aircraft equipped with air-to-air missiles to intercept a civilian aircraft, have the authorities in Minsk ‘used weapons’ and thereby breached this convention? Did the diversion and the unscheduled layover put the lives of those on board or the safety of the aircraft at risk?

The sanctions response

Irrespective of whether Belarus is or is not in violation of its convention obligations, officials involved in this episode have poked the bear of the EU’s international sanctions regime. Belarus is already quite familiar with this, with the EU already imposing sanctions on President Lukashenko, as well as 87 individuals and seven entities connected with him. The restrictive measures consist of a ban on travel to the EU and an asset freeze. EU persons and entities are forbidden from making funds available to those listed, either directly or indirectly. There are identical sanctions applicable in the UK.

Since the episode, the European Commission has called for the European Council to “adopt additional listings of persons and entities as soon as possible on the basis of the relevant sanctions framework”. In a speech on the topic, President Ursula von der Leyen indicated that new sanctions would be imposed on individuals involved in the hijacking, as well as on businesses and economic entities financing President Lukashenko’s regime.

At a press conference following the EU foreign ministers meeting in Lisbon, it was confirmed that economic and sectoral sanctions would be introduced, but this would take time as the legal framework needs to be adapted. Sanctions experts will be closely watching this space for further developments.

In the UK, Foreign Secretary Dominic Raab indicated that a coordinated response with the EU is warranted in the circumstances. The Republic of Belarus (Sanctions) (EU Exit) Regulations 2019 were introduced under the Sanctions and Anti-Money Laundering Act 2018 (SAMLA), legislation that gives the government a legal framework to implement sanctions autonomously following our departure from the EU. The Foreign Secretary can add designated persons to the existing sanctions list where he has reasonable grounds to suspect they are involved in the commission of a serious human rights or the repression of civil society or democratic opposition, or other actions, policies or activities which undermine democracy or the rule of law in Belarus. Whether or not interference with a commercial aircraft is grounds for adding an individual to the list is debatable. It is likely, however, that the reported forced confessions of Mr Protasevich and Ms Sapega provides a legal basis for adding to the list any individual or body corporate involved in this episode. A broader approach to sanctions targets may require alternative justifications, either under these existing regulations, or by amending or introducing new regulations under SAMLA.

The Magnitsky connection

The incident has also provided renewed momentum to calls for an EU-wide equivalent to the US Magnitsky Act, which would allow for targeted sanctions on individuals implicated in human rights abuses anywhere in the world. The European Parliament has this week held a debate on the topic. In the UK, the Global Human Rights Sanctions Regulations 2020, also made under SAMLA and inspired by the Magnitsky Act, is already in force and is relevant in the circumstances. These establish a sanctions regime for the purpose of deterring, and providing accountability for, serious violations of certain human rights, including the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment. Again, the reports of the torture and forced confessions of Mr Protasevich and Ms Sapega would make these regulations applicable conferring power to the Foreign Secretary to designate persons who are, or have been, involved in such activities.

Might Interpol have helped?

So how else could Belarus have achieved its goal of apprehending Roman Protasevich? Firstly, Belarus might have asked Interpol to issue a Red Notice. A Red Notice notifies other Interpol member states that an individual is sought for arrest with a view to extradition.

The Red Notice regime has been open to criticism for alleged abuse. In 2011, the International Consortium of Investigative Journalists analysed all public red notices on Interpol’s website, as at 10 December 2010. More than 2,200 were issued on behalf of countries that were said to lack adequate human rights safeguards, including Belarus.

In July 2011, Ales Mihalevic, a Belarusian opposition candidate in the 2010 presidential elections, was detained by Polish airport police. In August 2013, Andrei Abozau, a Belarusian opposition activist living in exile in Estonia, told the online newspaper EUobserver [https://euobserver.com] of two cases of Belarusian dissidents who were arrested in EU countries on Red Notice alerts originating from Belarus.

Extradition, and its limits

If Roman Protasevich had been detained outside Belarus, following a Red Notice alert or otherwise, an extradition request would be the next step in securing his lawful return to Belarus. Extradition is the formal process whereby a state requests the return of a person accused or convicted of a crime to stand trial or serve a sentence. Historically, extradition was often based on informal relations between sovereign states. Nowadays, extradition tends to be based on formal extradition treaties.

In most countries, however, extradition is subject to what is generally called the political offence exception. In theory, this principle obliges the requested state to refuse extradition for a political crime. In practice, this principle is open to interpretation, with no universally accepted definition of what constitutes a political crime. Generally speaking, extradition will not be granted where the request was made for the purpose of prosecuting or punishing the defendant on account of his race, religion, nationality, gender, sexual orientation or political opinions, or where, if extradited, the defendant might be prejudiced at his trial or punished, detained or restricted in his personal liberty for those reasons. EU member states such as Greece and Lithuania have such safeguards in place, similar to those of the UK, which would have provided Belarus with a serious challenge in securing the return of their dissident.

Belarus has attempted to use extradition as a tool against political dissidents. Authorities have officially requested that Lithuania extradite the opposition leader and former presidential candidate Svyatlana Tsikhanouskaya, who has been living in Lithuania since leaving Belarus amid safety fears. On 5th March 2021, the Prosecutor-General’s Office of Belarus made a statement confirming that she is wanted for “crimes committed against public order, public safety, and the state.” The Lithuanian Foreign Minister Gabrielius Landsbergis issued a statement saying that Vilnius would ignore the request.

A striking challenge

Belarus is described as the last despotic regime in Europe. It is a state without many friends (Russia being the most notable exception). The August 2020 presidential election has served to only further alienate nations that have systems and standards in place to facilitate international cooperation in criminal matters. It is in this context that Belarusian political leaders took the decision to divert the plane to Minsk, causing international consternation. The legal ramifications of this episode remain ongoing, and illustrate a striking challenge to international legal norms. This may include lasting effects on the shape of sanctions regimes in the EU and the UK.

John Binns

John Binns

Suzanne Gallagher

Suzanne Gallagher

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