In meetings I’ve had over the past year with the well-meaning and generally beleaguered Trump administration officials responsible for aspects of the government’s human rights policy, a frequent refrain is that this administration isn’t receiving enough credit for the positive steps it has taken with respect to promoting human rights and the rule of law (and, to be fair, it has taken a few).

At a certain level—and I say this with no lack of empathy, given the situation in which these officials find themselves—their lament is difficult to countenance, given the many ways in which their boss’s manifest authoritarian tendencies, disdain for judicial independence and a free press, and attacks on women and religious and ethnic minorities are alienating allies and emboldening human rights abusers and kleptocrats around the world.

It therefore came as a surprise on multiple levels, when, in the week just before Christmas—a time generally reserved for burying news, not making it—an administration starved of positive stories to trumpet when it comes to America’s reputation abroad inexplicably decided to roll out what is, safe to say, the most positive, broad-based human rights-related measure of its tenure.

That’s a shame, because what the Trump administration did is a big deal. In a good way.

To briefly recap: with much of official Washington already checked out for the holidays, on Dec. 21, the Trump administration released its initial tranche of sanctions designations under a new executive order tied to the Global Magnitsky Human Rights Accountability Act. The law, which Congress passed in 2016, provides the executive branch with authority to administer targeted financial and visa-related sanctions against foreign individuals and entities if they are found to have committed human rights violations or engaged in corrupt practices.

While news outlets, human rights organizations (including my own), and key congressional champions of the Global Magnitsky Act, and its Russia-specific predecessor, put out articles and statements focused on the 15 individuals and 37 entities sanctioned by the U.S. government, we all likely missed the real story, which centers not on the designations, but on the executive order that accompanied them.

That order (number 13818, for those keeping track at home), entitled “Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption,” holds great potential as a tool to advance human rights policy. But before delving into why it could prove to be quite powerful, it’s worth spending some time on a few of the specific 52 sanctions designations, which provide insight into the Trump administration’s policies and the inevitable bureaucratic battles that go on behind the scenes.

So, Who Was Sanctioned?

First, the fact that the Trump administration designated any human rights abusers and corrupt actors under an executive order tied to the Global Magnitsky Act—which, we should remember, is an elective authority— is a significant achievement. I say this not because of President Donald Trump’s clear disdain for nearly all of the precepts underpinning human rights as a concept, or because of the original Magnitsky Act’s cameo role in events currently under investigation by Special Counsel Robert Mueller. Instead, more prosaically, it’s significant because it’s likely that many of the sanctions designations unveiled in December were opposed by several of the State Department’s regional bureaus, which tend to be skeptical of any actions that involve increasing friction in a bilateral diplomatic relationship, even when dealing with foreign governments with truly odious records.

In light of this perennial bureaucratic dynamic, it’s worth highlighting that introducing 13 primary sanctions designations on individuals, and an additional 39 secondary designations (on two individuals and 37 entities), in the annex to the new executive order is a pretty big deal. Officials within the State Department’s bureaus of Economic and Business Affairs, Democracy, Human Rights and Labor, and International Narcotics and Law Enforcement each deserve credit for the action, as does the peculiarly named directorate for International Organizations and Alliances at the National Security Council, which coordinates multilateral and human rights policy. The same goes for officials within the Treasury Department’s Office of Foreign Assets Control (OFAC), and particularly for Treasury Under Secretary for Terrorism and Financial Intelligence (and acting Deputy Secretary) Sigal Mandelker, who appears to have led the charge on Global Magnitsky within the administration.

Raw numbers of individuals and entities designated, of course, are a poor metric for impact. That said, those that feel that the United States can—and should—walk and chew gum at the same time concerning our relations with repressive and/or corrupt foreign governments notched a few meaningful victories.

The administration’s decision to sanction Russian Prosecutor General Yuri Chaika’s son Artem, particularly when coupled with the announcement of sanctions levied against Chechen warlord Ramzan Kadyrov and a key lieutenant on Dec. 20 under the Russia-specific version of the Magnitsky law, sent a strong signal to the Kremlin that President Vladimir Putin’s cronies no longer enjoy limitless impunity.

Other noteworthy designations under Global Magnitsky included Dan Gertler, an Israeli billionaire alleged to have used his relationship with Congolese president Joseph Kabila to net billions of dollars in extractives-related gains; Benjamin Bol Mel, a business magnate alleged to have profited from his ties to South Sudanese President Salva Kiir; and Gao Yan, a Chinese security official allegedly linked to the death in custody of human rights activist Cao Shunli. In terms of political and financial impact, each of these designations is likely to hit home with its intended target.

Perhaps most importantly, particularly when viewed from the perspective of the U.S. government’s ability to employ the Global Magnitsky Act to counter human rights abuses in near-real time, was the government’s decision to sanction Burmese military official Maung Maung Soe. As the former chief of the Burmese Army’s Western command, Soe is alleged to have served as a key overseer of the atrocities recently committed against Rakhine State’s Rohingya population. His designation reflects the use of Magnitsky sanctions at their most sophisticated, both in terms of responsiveness to real world events and in using the authority’s scalpel-like precision to isolate individuals or factions within a larger governmental structure.

Lastly on the positive side of the ledger, the government’s initial designations demonstrated an apparent, if also circumscribed, responsiveness to recommendations from NGOs and members of Congress. In a clear signal that they wanted to involve actors beyond the executive branch in the process of researching would-be sanctions designations, Global Magnitsky’s authors wrote into the law that “the President shall consider…information provided jointly by the chairperson and ranking member of each of the appropriate congressional committees; and credible information obtained by other countries and nongovernmental organizations that monitor violations of human rights.” To its credit, the Trump administration seems to have taken this instruction to heart. The sanctions applied against Soe, Chaika, Gertler, Gao, and Bol Mel, as well as Nicaraguan Supreme Electoral Council President Roberto Jose Rivas Reyes, each reflect either explicit recommendations or more general concerns raised by watchdog groups and/or members of Congress. This development is likely to strike an appropriate amount of fear into human rights violators and corrupt actors around the world, just as the Act’s authors intended.

Glaring Omissions

To be sure, in many additional cases, the administration clearly chose not to act on information provided by outside groups and elected officials. Yet in so doing, it nevertheless seems to have left the door open to future action, as government officials have indicated that they continue to investigate information provided by external sources, and intend to use Global Magnitsky on a continuing basis. To the degree that these goals are operationalized, they are likely to be applauded by the Act’s champions, and leave criminals and human rights abusers on edge.

Notwithstanding these plaudits, the administration’s initial list of sanctions designees still left much to be desired. While the number of designations mentioned earlier is sizeable when compared to most initial EO annexes that derive their authority from the International Emergency Economic Powers Act (50 U.S.C 1701), they are clearly miniscule when viewed from the perspective of worldwide human rights violations and grand corruption.

In particular, the blanket non-inclusion of individuals and entities from the Middle East (Gertler aside) in the EO annex is glaring, given the massive scope of human rights violations and corruption endemic in the region. The Trump administration appears to have declined to act on credible information provided by outside groups concerning abuses in Saudi Arabia, Bahrain, and Egypt, among other countries.

This decision constituted a particularly significant letdown for human rights activists in Egypt. Notwithstanding Trump’s belief that Egyptian President Abdel Fattah el-Sisi has “done a tremendous job under trying circumstance (sic),” Sisi’s repressive counterterrorism tactics and attacks on civil society are leading to a well-documented cycle of radicalization and violence that implicate American security interests. In an environment in which political imprisonment and torture are rife, and terror attacks are increasing, the fact that the U.S. government elected to ignore credible information submitted by human rights NGOs—including first-hand testimony from torture survivors—can’t help but be seen as a major missed opportunity. That such a decision occurred shortly after the administration elected to withhold a significant portion of military aid earmarked for Egypt on human rights grounds makes the decision even more of a head-scratcher.

A similar critique can be levied against the government for its decision not to impose a single human rights-related designation in Central Asia, home to several of the most repressive governments on earth, and any number of U.S. security partners whose governments are engaged in large-scale human rights violations, from the Philippines to Turkey to Ethiopia.

While perhaps not entirely surprising, the decision not to impose sanctions against individuals from these countries leaves the U.S. government open to credible charges that it is engaging in selective application of human rights standards. This dynamic, if not arrested, is ultimately a grave threat to American legitimacy when speaking about human rights, and our (damaged, but still intact) reputation as a credible proponent of the notion that all states should adhere to the commitments we’ve made to protect fundamental freedoms.

One need only re-open one’s dusty copy of Jeane Kirkpatrick’s “Dictatorships and Double Standards” to recognize that the idea that the United States should view human rights policy as a cudgel with which to beat our enemies is nothing particularly new. Nevertheless, the concept seems to be experiencing something of an intellectual renaissance at present. For all of its potential as a groundbreaking means to protect victims of horrific violence and administer some form of accountability for corruption, the Global Magnitsky Act contains the seeds of its own destruction if it is wielded in a manner that erodes its own credibility. On this front, it remains to be seen whether the tool evolves into what was envisioned by its proponents, or into something more cynical.

Which brings me to Executive Order 13818.

Loosening the Language – a Potential Game Changer?

Under the International Emergency Economic Powers Act (IEEPA), Congress authorized the president to exercise certain emergency powers if s/he declares a particular situation a national emergency due to an “unusual and extraordinary threat…to the national security, foreign policy, or economy of the United States.” Making a national emergency declaration is thus a statutory requirement for the executive branch to announce most sanctions programs implemented by Treasury’s OFAC.

At times, the legal requirement to declare a situation an “unusual and extraordinary threat to the national security of the United States” in order to levy sanctions on human rights grounds has provided human rights violators with ample opportunity to turn the United States’ words against it.

The most striking example of this dynamic occurred in early 2015, when, in order to sanction seven Venezuelan government officials for human rights violations, the Obama administration declared the country an “extraordinary threat to U.S. national security.” While any sanctions announcements were sure to elicit a furious response from the government of President Nicolás Maduro, Venezuela’s leaders announced that the U.S. declaration signaled an intention to attack their country, and used it to further undercut Venezuela’s political opposition and human rights community.

The hard-won lesson of this episode in part motivated Congress to grant new authorities under the Global Magnitsky Act. By granting global sanctions authority independent from IEEPA, the Global Magnitsky Act provides the executive branch with the ability to levy sanctions against certain individuals in any country for human rights violations or corruption without having to resort to establishing a country-wide national emergency declaration.

Executive Order 13818 takes this approach one step further, and draws upon the authority of both the Global Magnitsky Act and IEEPA, as well as the Immigration and Nationality Act of 1952, to establish an extremely flexible human rights and anti-corruption accountability tool with global reach.

The executive order’s ambition is articulated in its preamble, in which the president finds that “the prevalence and severity of human rights abuse and corruption…have reached such scope and gravity that they threaten the stability of international political and economic systems.” The president goes on to say that he has therefore determined that “serious human rights abuse and corruption around the world constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States,” and thereby constitute a national emergency.

Putting aside the absurdity that these Wilsonian-like words are supposed to reflect Trump’s actual views, they’re something to behold. They also seem clearly at odds with the administration’s “America First” foreign policy, as recently articulated in its National Security Strategy (NSS), which the White House released three days prior to the EO. Instead of reflecting his NSS, Trump’s preamble seems to most closely resemble the text of President Barack Obama’s August 4, 2011 directive on mass atrocities, which both mandated the creation of an interagency Atrocities Prevention Board and declared that “Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.”

Obama-era proponents of a globe-spanning anti-atrocities sanctions regime labored unsuccessfully for several years to craft a universal sanctions authority similar to, and possibly less expansive than, this new Trump executive order. In internal policy discussions, arguments made against such an executive order included that the tool would be used too frequently, thereby taxing internal resources, and, somewhat contradictorily, that it might never be used at all, thereby disappointing the human rights community.

Whatever the concerns of decision-makers within the last administration, they have clearly been laid aside by Treasury Secretary Steven Mnuchin and other senior Trump administration officials. These policy-makers appear to have crafted EO 13818 in a manner that provides  significant flexibility, which is lacking under the Global Magnitsky Act.

For example, the Global Magnitsky Act requires that the crime in question constitute a “gross violation of internationally recognized human rights,” or a “GVHR.” That term is codified at 22 USC § 2304(d)(1) as including:

Torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges and trial, causing the disappearance of persons by the abduction and clandestine detention of those persons, and other flagrant denial of the right to life, liberty, or the security of person.

Given the exacting evidentiary requirements involved in meeting this standard, government lawyers have consistently appeared more inclined to approve sanctions cases dealing with instances of extra-judicial killing, torture, and rape than they have been when cases involve the denial of liberty inherent in a politically motivated prosecution and prison sentence. When I’m approached by activists from a country whose government routinely imprisons journalists, members of the political opposition, or human rights defenders, they’re frequently surprised to hear that the Global Magnitsky Act likely offers them no remedy.

Similarly, serious crimes otherwise deserving of U.S. scrutiny are frequently precluded for consideration by the Act’s requirement that a victim be either a) someone working “to expose illegal activity carried out by government officials,” or b) someone who seeks to “obtain, exercise, defend, or promote internationally recognized human rights and freedoms.” These “whistleblower” and “human rights activist” provisions have generally excluded cases that a casual observer might feel were otherwise ripe for sanctions. Consider, for instance, the widespread extra-judicial killing of drug users by government security forces in the Philippines, or the grievous crimes perpetrated against Burma’s Rohingya population. In the latter case, while one could argue that the Rohingya are targeted by Burmese security forces expressly because of their status as a religious and ethnic minority group, it would not strike me as far-fetched to hear a U.S. government lawyer argue that the law lacked applicability, given that few, if any, of the individuals targeted were actively working to obtain or exercise their rights.

Executive Order 13818 addresses both of these limitations, among others. As stated in both its preamble and in section 1(ii)(A), the GVHR language of the Magnitsky Act has been replaced with a standard defined as “serious human rights abuse.” While it remains to be seen how the government’s lawyers have or will interpret this standard, the language of the EO is clearly more permissive. Additionally, the change from “violation” to “abuse” appears to broaden the scope of permissible sanctions designations beyond state actors to conceivably anyone found to have committed a covered action.

The EO simply omits the Magnitsky Acts’ human rights activist provision. Rather than needing to show that a covered crime was perpetrated against someone working to “obtain, exercise, defend, or promote” human rights, the order merely states that the U.S. government can sanction any foreign person found “to be responsible for or complicit in, or to have directly or indirectly engaged in, serious human rights abuse.” This omission decidedly widens the regime’s potential applicability. Rodrigo Duterte, you’ve been warned.

And that’s not all. Similar to its loosening of language with respect to human rights abuses, EO 13818 substitutes “corruption” for the Global Magnitsky Act’s “acts of significant corruption” when describing the second major category of offenses covered under its sanctions authority. Here too, one can reasonably expect that the change in language was intended to allow the government more room for maneuver in terms of its future designations.

Finally, a fourth change in EO 13818 from the Global Magnitsky Act appears to dramatically lower the standard under which an official can be held responsible for human rights abuses or acts of corruption that take place under his or her watch, but not necessarily with his or her direct participation.

Under the Global Magnitsky Act, if the U.S. government wanted to designate, say, a senior foreign security service official for acts of torture that occurred in a jail he controlled under a theory of “command responsibility,” it generally needed to satisfy three criteria. These include that the designee maintained effective control over the subordinate individual(s) who directly committed the alleged acts of torture; that the designee had actual or constructive knowledge that his subordinates were about to commit, were committing, or had committed torture; and that the designee failed to take necessary and reasonable measures to prevent or halt the torture, or to investigate it in a meaningful effort to punish the perpetrators under his command.

Executive Order 13818 sidesteps many of these requirements by establishing a status-based relationship between officials and designated entities. Its section 1(ii)(C) notes that the U.S. government can sanction any foreign person determined “to be or have been a leader or official of an entity that has engaged in, or whose members have engaged in” serious human rights abuse or corruption. It also allows for the designation of a leader or official of “an entity whose property and interests in property are blocked pursuant to this order as a result of activities related to the leader’s or official’s tenure.”

The practical effect of this change could be quite significant. The example of Beijing Public Security Bureau official Gao Yan is illustrative. Under section 1(ii)(C), Gao’s designation effectively opens all officials of the Beijing Public Security Bureau, or at least the Chaoyan Branch subcomponent in which he worked, to the potential of sanction, given that the U.S. government has established a relationship between the bureau and the death in custody of Cao Shunli. The potential for secondary sanctions based on such status is seemingly vast.

To be sure, none of the provisions written into EO 13818 will automatically result in additional, sanctions on human rights abusers and corrupt actors in the future. At the end of the day, as with the Global Magnitsky Act, the Trump administration’s executive order provides the U.S. government with a tool it can elect to use, or not, as it sees fit. How it does so is an important question moving forward. A sanctions regime as broadly applicable as EO 13818 should be managed both effectively and appropriately, and used neither capriciously nor arbitrarily. On this point, time will tell.

In the meantime, what we can say with certainty is that an administration unlikely to be remembered for its positive impact on human rights promotion or the global fight against corruption—to say the least—just formalized a policy tool that supersedes and improves upon existing law dealing with these issues. That it did so in a manner that resulted in minimal attention is puzzling. But we should take what we can get, and offer credit where it is due.


Image: Getty