From Brunson to Khashoggi, Global Magnitsky Sanctions Score a Mixed Record of Firsts

In the last 30 days, we’ve witnessed a number of important firsts concerning Global Magnitsky sanctions, the targeted pro-human rights and anti-corruption penalties increasingly at (or at least near) the center of U.S. relations with capitals from Moscow to Kinshasa and Riyadh to Ankara.

On Oct. 10, the chairman and ranking member of the Senate Foreign Relations Committee, invoking a previously unused provision in the Global Magnitsky Act and joined by a bipartisan group of 20 other senior lawmakers, put the Trump administration on notice that they expect Magnitsky sanctions to be levied against senior officials in the Saudi government in response to that government’s’ alleged murder of journalist and dissident Jamal Khashoggi. The administration, through Secretary of State Mike Pompeo, responded on Oct. 23 by announcing the initiation of a multi-agency review of the applicability of Magnitsky sanctions to individuals identified as working in Saudi intelligence and diplomatic services, as well as the royal court. The outcome of this process remains an open question, and major elements of the U.S.-Saudi bilateral relationship hang in the balance.

Ten days later, in another, not completely unexpected first, the administration lifted the Magnitsky sanctions it had hastily levied in August against Abdulhamit Gul and Suleyman Soylu, the Turkish ministers of justice and interior, respectively. The administration gave little explanation for these inaugural de-listings under the Magnitsky program, though they were widely understood to have been a direct response to Turkey’s Oct. 12 release from prison of American evangelical pastor Andrew Brunson.

I wrote about the use of Magnitsky sanctions in the Brunson case shortly after they were announced, calling them “ham handed” and “a step in the wrong direction” from the perspective of anyone interested in maintaining the legitimacy and effectiveness of the Magnitsky sanctions regime. My argument rested on the premise that by sanctioning the two Turkish ministers, the Trump administration had painted itself into a policy corner, at least if one buys the idea that maximizing the Magnitsky program’s legitimacy is a policy interest. By tying human rights sanctions not to the Turkish government’s abysmal human rights practices, but to the case of a single American preacher (who, it should be restated, was jailed on egregiously spurious grounds), the administration left itself no good options.  As I wrote at the time:

If the administration arrives at a deal to effect Brunson’s release in exchange for lifting sanctions on the two Turkish officials, the implicit message will be that the Turkish ministries of justice and the interior have in some way improved their human rights records. Conversely, if the administration continues to impose Global Magnitsky sanctions after Brunson’s release, the U.S.-Turkey relationship may erode further, since the administration’s only public justification for its actions concerned Brunson’s detention.

To be clear, securing Brunson’s release — and that of other unjustly detained Americans held in Turkey and elsewhere — is worth significant U.S. government effort. And the Trump administration has made something of a priority of gaining the release of Americans held overseas, from Aya Hijazi in Egypt, to Josh Holt in Venezuela, to three Americans previously held in North Korea.

But effecting the release of American prisoners held overseas is not the same thing as supporting human rights. Likewise, a foreign government’s decision to release an American held hostage has no inherent connection with that government’s approach to repressing its own citizens. One need look no further than the human rights records of the three countries just mentioned – Egypt, Venezuela, and North Korea — to recognize this fact.

`Quid Pro Quo’

Now that the administration has delisted the two Turkish ministers, we know which door it chose to walk through:  the one marked “quid pro quo.”

This isn’t an inherently flawed decision in purely conceptual terms, given that whole point of targeted sanctions is to bring about behavioral or policy changes in those on the receiving end. But from a policy standpoint, the Trump administration did itself no favors with the Turkish sanctions. Why, then, did it move heaven and earth to place sanctions on Gul and Soylu in a matter of days, accelerating a listing process that normally takes months?  By all accounts, the obvious answer was to curry favor with a domestic, evangelical political base focused on Brunson’s unfortunate plight in the run-up to this week’s midterm elections.

“So what?” some might say.  “We got an American out of a foreign prison using the leverage provided by economic statecraft – an undoubtably good thing.” This view isn’t wrong per se – as I’ve stated previously, winning the release of Americans held unjustly overseas is worth significant effort.

At the same time, it’s debatable whether Magnitsky sanctions made the difference in springing Brunson, yet we know their use came at some cost. On one hand, the designations of Gul and Soylu did have an outsized economic impact: the Turkish lira hit record lows against the dollar following the Treasury Department’s sanctions announcement. On the other, this impact was likely dwarfed by the effects of new tariffs imposed on Turkish steel and aluminum.

Added to this mix was the unforeseen diplomatic crisis sparked by Saudi Arabia’s wanton killing of Khashoggi, which posed a “crisitunity,” as Homer Simpson would say, from the Turkish perspective. Khashoggi is believed to have been murdered Oct. 2 by Saudi operatives in their consulate in Istanbul, 10 days before Brunson’s release. It’s easy to speculate concerning links between the two events. Turkish President Recep Tayyip Erdoğan, who previously saw Brunson as a bargaining chip in his long-running crusade to effect the return from the United States of Turkish cleric Fethullah Gülen, likely realized that a quick rapprochement with Washington over Brunson could ease pressure on his ailing economy, while helping push forward an unexpectedly rapid realignment in the Saudi-Turkish struggle for influence in the Middle East.

At best, one can thus surmise that Magnitsky sanctions contributed to pressure on Ankara, though they probably weren’t the decisive factor in Brunson’s release. On the other side of the ledger, however, their use didn’t come without a price.

Maintaining Integrity of Sanctions

I won’t restate the full argument here for why we shouldn’t confuse human rights violations by a given government with that government’s taking of American hostages. The two are conceivably related, but they are not the same thing. Applying sanctions dedicated to the former in cases of the latter undercuts the fundamental message undergirding the Magnitsky program’s legitimacy in the eyes of the world.  This is no academic matter when sanctions compliance is at stake.

Moreover, the sanctions imposed over Brunson and lifted last week not only didn’t apply to Turkey’s human rights situation, they didn’t even cover most of the American citizens currently detained by the Turkish government.  While the precise number of Americans jailed in Turkey, including dual citizens, isn’t known to even the best-connected analysts, experts often say the number ranges from two- to three-dozen. These include NASA scientist Serkan Golge, as well as Ismail Kul, a chemistry professor from Pennsylvania, and his brother Mustafa. Similarly, three Turkish employees of the State Department remain in detention or house arrest in what analysts believe is retribution for their work with the U.S. government.

Finally, it’s worth remembering that the application and enforcement of any sanctions program is a time-intensive and resource-constrained process. This is for good reason. Having one’s assets frozen and ability to travel to the United States curtailed is a significant penalty. The U.S. government should never be in the business of sanctioning individuals flippantly and without credible, corroborated evidence. The designation packages assembled by the Treasury Department’s Office of Foreign Assets Control (OFAC) thus take significant time to assemble. There is no doubt that the rapid listing and delisting of Gul and Soylu took away precious time from other sanctions priorities, ranging from Russia, to Iran, to North Korea, to other Magnitsky targets. Whether the trade-off was worth it, given the mixed role the sanctions likely played in the final outcome, is debatable.

IMAGE: The grave of lawyer Sergei Magnitsky at the Transfiguration Cemetery in Moscow (Credit: Dmitry Rozhkov/Wikimedia) 

 

About the Author(s)

Rob Berschinski

Senior Vice President for Policy at Human Rights First, Former Deputy Assistant Secretary of State for Democracy, Human Rights, and Labor Follow him on Twitter (@RobBerschinski).