What do the Russian anti-corruption lawyer Sergei Magnitsky and the Saudi journalist Jamal Khashoggi have in common? Both victims of shocking human rights violations, including torture and, ultimately, extrajudicial killing, their cases have helped to catalyse an important new trend in how the international community addresses serious infractions of international human rights law. In particular, both killings are closely associated with the development and application of so-called ‘Magnitsky legislation’ – new laws in a number of Western States that, in principle, allow one State to apply targeted sanctions against individuals accused of serious human rights violations and/or corruption in another State. As URG has previously argued, the advent of these new human rights-based sanction regimes represent a revolutionary shift in the enforcement of international human rights law, with important implications for the wider international rules-based system.
On 2 October this year, Jamal Khashoggi entered the Saudi consulate in Istanbul, Turkey, ostensibly for a routine appointment to receive papers confirming his divorce . He was not seen again. Over the following weeks allegations of interrogation, torture and ultimately murder emerged from Turkish officials, later substantiated by unprecedented public claims from Turkey’s National Intelligence Organization. On 20 October, in response to growing international pressure, Saudi Arabia finally admitted that Mr Khashoggi had died inside the consulate, blaming alternately a fist-fight, a choke-hold in an attempt to restrain the 59 year old journalist and ultimately a botched, rogue intelligence operation. This claim was subsequently questioned by both Turkey and Saudi Arabia’s Western allies.
The position of the US Trump Administration, which will likely determine the overall international response, has been lacklustre. As a consequence, on 10 October, a bipartisan group of 22 US Senators sent a letter to President Trump triggering the Global Magnitsky Human Rights Accountability Act (GMA). Per the terms of the act, this will require the President to ‘make a determination of whether a foreign person is responsible for gross human rights violations’. Somewhat tellingly, the letter read ‘Our expectation is that in making your determination you will consider any relevant information, including with respect to the highest ranking officials in the Government of Saudi Arabia’. Under the terms of the GMA, the Administration must report back within 120 days, and include in that report a decision on the imposition of sanctions against anyone deemed responsible for Mr Khashoggi’s torture and killing.
The GMA, referred to in the Senators’ letter and increasingly referenced in international press coverage of human rights abuses, is named after Russian anti-corruption lawyer, Sergei Magnitsky, who was murdered in a Moscow jail cell in 2009. His murder prompted the US Congress to pass the eponymous Magnitsky Act. This legislation enabled the US to pursue individually-targeted sanctions against those involved in the networks of corruption that led to Mr Magnitsky’s death, including asset freezes and forfeiture, and the denial of entry into the US. In 2016, the legislation was expanded into a ‘Global Magnitsky Human Rights Accountability Act’ (GMA), which greatly increased the scope for sanctions against anyone (in any country) guilty of the ‘gross violation of internationally recognised human rights’ and/or ‘acts of significant corruption.’
Since the adoption of the GMA, the US has levied sanctions against 133 individuals and entities[1] deemed to be complicit in human rights violations and/or grand corruption. President Trump’s Executive Order 13818, pursuant to the GMA, determined that ‘serious human rights abuse and corruption around the world constitute an unusual and extraordinary threat to national security’ and imposed sanctions on a further 13 actors including the then President of Gambia, Yahya Jammeh, (such international pressure was a key driver of his eventual acceptance of defeat following the 2016 presidential elections, and the country’s consequent return to free, fair and competitive elections), and Maung Maung Soe, Tatmadaw General and one of the individuals identified by the UN Fact Finding Mission to Myanmar[2] as individually culpable for widespread crimes against humanity and probable genocide in Myanmar’s Rakhine state.
The GMA is revolutionary for three main reasons:
- It creates an unprecedented and universal – if unilateral – jurisdiction for the enforcement of international human rights law. This does not require a State to be Party to a relevant treaty or for the right concerned to be derived from jus cogens
- The framework it creates is explicitly concerned with individual accountability, targeting persons, legal and physical, for sanctions instead of allowing them to hide behind the ‘protective veil of State sovereignty.’
- It recognizes a direct causal line between corruption and human rights violations, which – as URG and the OHCHR have repeatedly noted – are intrinsically linked.
Increasingly, countries beyond the US have begun to consider and, in some cases, adopt their own GMA type legislation. For example, in 2017, Canada passed a ‘Justice for Victims of Corrupt Foreign Officials Act.’ Later that same year, this new legislation was used to levy sanctions against Russian and Venezuelan officials in response to human rights violations. Canadian lawmakers are now actively discussing its application against individuals in Saudi Arabia. In May 2018, the UK passed a ‘Magnitsky Amendment’ to its ‘Sanctions and Anti-Money Laundering Bill.’ As UK Ambassador to the UN in Geneva, Julian Braithwaite, argued in a June 2018 blog for the URG, this new law shows ‘great promise in the fight against both corruption and human rights violations’. Furthermore, in the wake of the Khashoggi case, , the Netherlands has invited EU diplomats to a conference at the Hague on the 20th of November to discuss the value-added of a ‘human rights sanction-regime’ in the same vein as the US GMA. This has strong support within the EU, especially from those who are already looking at developing their own Magnitsky-type legislation, specifically the UK and the Baltic States of Estonia, Latvia and Lithuania. Moreover, in a remarkable step, both Japan and Australia will also attend meetings on the EU GMA – with a view to implementing their own human rights sanction regime.
If these discussions and negotiations are successful, it would mean 7 of the world’s 10 largest economies[3] would have put in place ‘Magnitsky laws’ – with enormous potential in terms of helping to secure individual accountability for serious human rights violations and corruption around the world.
The significance of this potential is illustrated by examples such as Gambia (see above), the Maldives and Malaysia. In each of these cases, increasingly autocratic incumbent heads of government, who stood accused of gross human rights violations and rampant corruption, were – against expectations – forced to hold democratic elections and, after being defeated, to relinquish Office. In each case, this was in large part due to the threat of GMA-type investigations and/or sanctions[4] [5] [6] in response to allegation of serious human rights abuses and corruption, against key members of the regimes – including against the heads of government themselves.
This enormous potential does not mean that ‘Magnitsky laws’ are without problems or that they represent a ‘magic bullet’ for dealing with human rights violations around the world. For example, some have argued that as the decision to apply sanctions is an administrative one, the GMA process is potentially open to political influence and abuse. Furthermore, the US GMA, which is serving as a blueprint for laws elsewhere, is concerned with gross violations of international human rights and significant corruption – relatively imprecise terms and potentially broad issue areas. This clearly provides wide leeway for national administrations looking to apply sanctions under ‘Magnitsky laws’. GMAs and their use, however, would be subject to judicial scrutiny in the jurisdictions that passed them and while the terms are imprecise, they are just imprecise enough to allow sufficient latitude for judicial interpretation by higher and constitutional courts, while at the very least increasing the threshold for political capital which must be expended for arbitrary (mis)use.
Notwithstanding these concerns, the new and innovate nature of ‘Magnitsky laws,’ and the obvious need to ensure some level of commonality and coherence between the different national/regional laws under development, suggests it will be necessary – and beneficial – to soon begin international-level discussions (not necessarily in the UN) on the normative and functional basis of GMAs. In this sense, the new EU-level discussions, also involving Japan and Australia, will offer an interesting litmus test, as well as an important milestone towards the enticing possibility of a future universal Magnitsky act.
[1] https://sanctionssearch.ofac.treas.gov/ (Numbers have been combined for both the Magnitsky Act & the subsequent Global Magnitsky Act, which targets different actors)
[2] https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/A_HRC_39_64.pdf p. 17
[3] http://databank.worldbank.org/data/download/GDP.pdf
[4] https://www.consilium.europa.eu/en/press/press-releases/2018/07/16/maldives-eu-adopts-a-framework-for-targeted-sanctions/
[5] https://maldivesindependent.com/politics/us-threatens-sanctions-against-maldives-140894
[6] https://www.theguardian.com/world/2015/sep/22/us-investigators-launch-probes-into-scandal-hit-malaysian-pm-najib-razak
Featured image: Mohammed bin Salman’s Saudi Arabia: A Deeper Look, March 21st 2018, Washington DC [Middle East Democracy, Photo by April Brady] Licensed under Creative Commons (CC BY 2.0)
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