Towards a new accountability? EU adds to growing momentum behind ‘Magnitsky acts’

by Louis Mason, Universal Rights Group Accountability, Beyond the Council BORRAR, Beyond the Council BORRAR, Blog BORRAR, Blog BORRAR, Contemporary and emerging human rights issues BORRAR, Corruption and human rights, Human rights institutions and mechanisms, Justice, Magnitsky BORRAR, Prevention, Prevention, accountability and justice BORRAR, Thematic human rights issues

On 9th December, the day before International Human Rights Day, EU foreign ministers took the historic decision to begin work on an EU-wide ‘Magnitsky act.’ The decision came just over a year after the Dutch Foreign Minister, Stef Blok, gave a landmark speech to his European counterparts in which he drew attention to the crucial importance of accountability for serious human rights violations. Without such accountability, he said, the rights enshrined in the Universal Declaration of Human Rights will never be fulfilled.

So-called ‘Magnitsky acts,’ named after Sergei Magnitsky, a Russian tax accountant who died in a Moscow prison after having investigated a case of tax fraud involving Russian officials, are a legislative means of sanctioning individuals thought to be responsible for gross and systematic human rights violations and/or acts of grand corruption. The US Congress was the first to adopt such legislation in 2012 in order to punish those Russian officials thought to be responsible for Magnitsky’s death. Since then, the US act – the Global Magnitsky Act – has been used to sanction individuals accused of human rights violations around the world, including Saudi officials suspected of being involved in the killing of journalist Jamal Khashoggi, the Gupta brothers in South Africa, who stood accused of widespread corruption, and Yahya Jammeh, the former President of Gambia, who stood accused of a long history of human rights violations and corruption. By enabling governments to issue travel bans and asset freezes against any individual anywhere in the world, such legislation represents a paradigm shift for international human rights law. A detailed URG analysis of the implications of this shift can be read here.

Over recent years, the US has been followed by other countries, including Canada, the UK and the Baltic States, in developing their own ‘Magnitsky acts.’ The EU is potentially a vital new addition to this list (considering the economic/financial power of the EU and the US, and the fact that many of the world’s autocrats hold property in or otherwise like to visit Europe and America). Since the Dutch Foreign Minister’s 2018 speech, progress on an EU ‘Magnitsky act’ had been held up by a handful of reticent States (reportedly including Hungary). However, with the decision of ministers on 9th December, the European Commission (specifically the European External Action Service – EEAS) has now been tasked with drawing up legislation. While this does not necessarily mean the EU will end up adopting the legislation, once drafted; in practice, a consensus decision to begin the legislative process generally holds through to adoption.

As such, the EU’s decision is an important step in the global struggle against corruption and human rights violations. In the words of Bill Browder, a human rights activist and long-time promoter of such measures: ‘If human rights violators cannot travel to Europe (and they’re already banned from the US and Canada) it will be devastating for them.’ Notwithstanding the importance of such travel bans, the implications of potential asset freezes and other possible financial sanctions could be even more significant. Should the EU’s proposal have similar dispositions to the US Global Magnitsky Act, sanctioned individuals would not only lose all their assets in the world’s second largest economy but would also be unable to undertake transactions with any bank or company that is either based or has subsidiaries in the EU.

Other countries are also joining the growing interest in this new, and potentially critical, approach to accountability. Australia recently began an inquiry into whether comparable laws should be enacted in the country; while in October, the Nordic Council, which includes Denmark, Finland, Iceland, Sweden, Norway, the Faroe Islands, Greenland, and Åland, announced that they were prepared to propose their own legislation ‘in the event that Magnitsky legislation is not implemented in the EU.’ The Nordic Council proposals involved the establishment of an independent commission to determine whether sanctions should be imposed. These initiatives come in the aftermath of a flurry of resolutions, including by the Parliamentary Assembly in the Council of Europe, the European Parliament and the Organisation for Security and Co-operation in Europe’s Parliamentary Assembly, asking for member States to consider establishing such sanction regimes at national or regional level.

Considering the important mandate and role of the UN in securing accountability for human rights violations, and the importance of ensuring that evolving legislative measures such as Magnitsky acts develop in line with universal human rights norms and standards, it is vital that the implications of such acts are considered by relevant UN member States in Geneva.

Featured image:why europe needs Magnitsky Law – EP book launch“, 13 November 2013, copyright ALDE Group

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