Reauthorizing and Strengthening the Global Magnitsky Act

(Editor’s Note: This article is the first of a Just Security mini-series adapted from recent testimony before the U.S. House of Representatives’ Tom Lantos Human Rights Commission regarding the reauthorization of the Global Magnitsky Act on March 24, 2021. )

The U.S. House of Representatives’ Tom Lantos Human Rights Commission held a hearing recently to discuss the reauthorization of the Global Magnitsky Act, which authorizes the president to impose sanctions on foreign individuals accused of committing human rights abuses or engaging in corruption, and which sunsets in 2022. The commission co-chairs, Congressmen Chris Smith (R-NJ) and Jim McGovern (D-MA), gave extensive opening remarks (here and here, respectively). So too did Senator Ben Cardin (D-MD)—incoming Chair of the U.S. Helsinki commission, author of the original bill, and co-sponsor of a reauthorization and expansion of the law—and Congresswoman Sheila Jackson Lee (D-TX), a member of the commission. In addition, the commission heard from:

  1. Tutu Alicante, Executive Director of EG Justice, a non-governmental organization dedicated to addressing corruption in Equatorial Guinea (written testimony);
  2. Michael Breen, President & CEO of Human Rights First (written testimony);
  3. Brad Brooks-Rubin, General Counsel, The Sentry;
  4. John Hughes, Adjunct Senior Fellow, Energy, Economics and Security Program, Center for A New American Security and Senior Vice President, Albright Stonebridge Group (written testimony); and
  5. Yours truly, Beth Van Schaack (written testimony).

Just Security is pleased to share the testimony and further thoughts of several of these witnesses in this mini-series devoted to the reauthorization, and potential expansion, of this critical human rights sanctions regime. In this introductory post, I will briefly sketch the history of the Global Magnitsky Act (“GloMag”) and then outline my 10 recommendations for how Congress should modify the act and its implementation in its reauthorization.

The Origins and Evolution of the Global Magnitsky Sanctions Regime

As part of President Barack Obama’s atrocities prevention and response initiative, there were efforts within an interagency group starting in 2011 to draft an atrocities prevention executive order (E.O.) that would enable sanctions against those who foment, perpetrate, or enable mass violence against civilians. At the time, the existing thematic sanctions regimes were aimed at addressing national security issues such as terrorism, narcotics trafficking, and the proliferation of weapons of mass destruction, but not human rights specifically. Meanwhile, certain geographic sanctions programs included a human rights component, but not all, leaving a gap in executive power to respond to human rights abuses.

The goal of the interagency group was to create a sanctions regime that would respond to the commission of human rights abuses by any actor—state and non-state, natural and legal persons—but would not be tied to any particular country designation. Designating an entire country for sanctions can be time consuming and put great strain on a bilateral relationship because the International Emergency Economic Powers Act (IEEPA) requires the president to determine that the situation constitutes a national emergency due to “an unusual and extraordinary threat … to the national security, foreign policy, or economy of the United States.” Furthermore, relying on such a country-by-country approach would not accurately capture transnational harm or impose a targeted and credible threat on all perpetrators.

During the deliberations, the Department of Treasury representatives were reticent about this E.O. initiative. They recognized the value of using sanctions to respond to serious human rights abuses, but they were understandably concerned about having the human power necessary to support a global sanctions regime and did not want to create outsized expectations among civil society – including victim and survivor groups – that the U.S. government could not adequately meet. There were also arguments that many warlords and human rights abusers may not participate in the global financial system, or travel internationally, so such designations would be purely symbolic in impact. In response, supporters argued that sanctions serve a range of critical purposes including: naming, blaming, and shaming perpetrators so they cannot enjoy the privilege of anonymity; isolating and containing abusers so they cannot travel or profit off of their depredations; restricting access to resources for self-enrichment or to organize abuses; preventing tainted funds from being invested domestically; signaling that certain conduct is worthy of censure; and expressing solidarity with victims and survivors. It was also suggested that civil society and other outside actors could partner with Treasury to assist in the process of creating designation packages to alleviate the burden on Treasury’s Office of Foreign Asset Control (OFAC) personnel.

In the end, this E.O. never materialized during Obama’s tenure despite significant effort among its supporters. Instead, Congress enacted the groundbreaking Global Magnitsky Act in 2016, authorizing sanctions against individuals who are engaged in “gross human rights violations” against persons who “seek to expose illegal activity carried out by government officials” or “to obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections” as well as in acts of “significant corruption”—attesting to the links between these phenomena. (See my prior coverage here). This legislation built on an earlier sanctions law, the Sergei Magnitsky Rule of Law Accountability Act, which was directed at Russia and enacted in 2012 after the killing of lawyer Sergei Magnitsky in a Russian prison. The architects of this new legislation astutely directed the president to consider the views of key members of Congress and credible information received from nongovernmental organizations that monitor human rights in deploying this new sanctions power to enable the U.S. government to make meaningful, timely, and accurate designations.

At the end of 2017, President Donald J. Trump issued E.O. 13818 to implement and expand upon this legislative framework (see Rob Berschinski’s coverage here). In many respects, the E.O. accomplished what had been attempted during the discussions of the earlier E.O. initiative in the Obama administration, in that it applies globally and can be activated in the face of a wide range of human rights abuses.

Expanding the Toolbox: Comparing E.O. 13818 to GloMag

Although the E.O. is ostensibly meant to implement the Global Magnitsky Act, it is broader than the legislation in a number of important respects:

  1. The executive order reformulated the grounds on which individuals or entities can be sanctioned. GloMag covers the commission of “gross violations of internationally recognized human rights” whereas the E.O. speaks of “serious human rights abuse.” While “violations” and “abuses” are often considered synonymous, to an international lawyer the former is generally employed to denote acts by States or State actors who are breaching human rights obligations owed by States (under treaties the relevant State has ratified or under customary international law); by contrast, the concept of “abuses” is broader in that it can cover the conduct of non-State actors who are not acting on behalf of, or with the acquiescence of, a State.
  2. In GloMag, the sanctionable conduct is defined by a sister statute to include torture, disappearances, and other flagrant human rights violations. Specifically, the Foreign Assistance Act of 1961 defines “gross violations of internationally recognized human rights” to include torture; cruel, inhuman, or degrading treatment or punishment; prolonged detention without charges or trial; causing the disappearance of persons; and “other flagrant denial of the right to life, liberty, or the security of person.” In contrast, the E.O.’s reference to “serious human rights abuse” is potentially more capacious and would more readily cover acts of sexual violence or non-violent human rights abuses, such as persecution on the basis of race or religion. The use of the singular “abuse” also suggests that it is not necessary to show a pattern or practice of harm to justify the imposition of sanctions, meaning that a single assassination, for example, could trigger a designation.
  3. Whereas GloMag is devoted to protecting human rights advocates and whistleblowers, the E.O. allows for sanctions to be imposed regardless of the nature or status of the victim class. As such, harm to ordinary civilians falls within its reach so long as the person to be sanctioned directly or indirectly engaged in, is responsible for, or is complicit in the harm.
  4. GloMag can be used to sanction individuals and their agents who are deemed “responsible” for gross human rights violations. By contrast, the E.O. also can be invoked against the leader or official of an entity that has engaged in serious human rights abuse or corruption; any person who has materially assisted, sponsored, or provided other forms of support to human rights abuse; or anyone who has participated in a conspiracy to violate the E.O. The E.O. thus more easily reaches enablers, such as lawyers, real estate agents, and accountants (including from Western countries) whose assistance is critical to effectuate the complex financial crimes that often accompany human rights abuses or through which corruption operates.
  5. The E.O. is actionable against any act of “corruption” rather than only “significant acts of corruption.”

The two sanctions authorities now apply concurrently. However, as a practical matter, given the limitations in GloMag, designations often proceed under the E.O.

Implementation and Diffusion of E.O. 13818 and GloMag

To address Treasury’s concerns about its internal capacity to prepare timely and accurate designations, Human Rights First and others convened a broad consortium of human rights groups and human rights clinics (including Stanford Law’s) to help implement GloMag and the E.O. by preparing reports containing background research and the bio-identifiers of potential perpetrators for submission to OFAC. This marks a new and highly effective public-private partnership in the service of international human rights. This research can also be shared with the Human Rights and Special Prosecutions Unit of the Department of Justice, in case some of the individuals identified might fall within U.S. criminal jurisdiction; with the Human Rights Violators and War Crimes Center, with an eye toward potential immigration remedies (such as exclusion); and with the State Department, to populate the Consular Lookout and Support System (CLASS) database and ensure that the United States does not offer safe haven, or even a vacation venue, for human rights perpetrators.

GloMag has now inspired a number of other countries to implement similar human rights sanctions regimes, including several close U.S. allies and the European Union, which recently activated its new authority, called the EU Global Human Rights Sanctions Regime. No longer bound by the European Union’s sanction policies, the United Kingdom recently enacted an autonomous global sanctions regime that seeks to deter, and provide accountability for, violations of the right to life; the right not to be subjected to torture or other cruel, inhuman, or degrading treatment or punishment; or the right to be free from slavery or forced labor. The full list of U.K. designations is available here. Likewise, Canada’s version of the Magnitsky Act, the Justice for Victims of Corrupt Foreign Officials Act, allows for sanctions against foreign nationals (but not legal entities) responsible for, or complicit in, extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against a similar victim class as GloMag. The Canadian designations are available here.

As we have seen with the new coordinated sanctions against officials in Xinjiang province in China in response to mistreatment of the Uyghurs, multilateralizing these national designations magnifies their stigmatizing, neutralizing, and deterrent impacts, particularly given the increasing difficulties of creating global sanction regimes within the Security Council. Together, these expanding global sanctions authorities are a fitting legacy for the remarkable Sergei Magnitsky, who was detained after revealing significant Russian corruption and died in custody in 2009 having been beaten and denied medical assistance.

The Future of GloMag

Given the success of the human rights and anti-corruption sanctions regime so far, as revealed by the hearing testimony and ongoing research, and its adoption by the United States’ friends and allies, a permanent reauthorization of GloMag is clearly warranted. However, merely reauthorizing the statute as previously drafted is not enough: GloMag must be modified and expanded to codify the broader language contained in the E.O. and to increase resources, improve transparency, encourage multilateral collaboration, and advance justice.

To that end, in my testimony I recommended 10 concrete suggestions for expanding upon this legislation and better aligning GloMag with E.O. 13818. These recommendations would broaden the impact of GloMag, ensure the retention of a robust sanctions regime in the event that the E.O. is rescinded for whatever reason, provide a firmer statutory basis for the sanctions beyond IEEPA, and rationalize U.S. human rights sanctions policy. Some of these suggestions are addressed more to implementation, but a revised statute could nudge U.S. practice in these directions. Many of these are contained in amendments proposed by Senators Cardin and Roger Wicker (R-MS) in S. 93, the Global Magnitsky Reauthorization Act.

First: My main recommendation is to remove the language within GloMag identifying the class of victims who have been targeted for abuse. This can be accomplished by simply excising § 1263(a)(1)(A) and (B) (which identify the class of victims as only those who seek “to expose illegal activity carried out by government officials; or to obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections”). Although those restrictions reflected concerns about capacity and the tragic situation of Sergei Magnitsky, which inspired the original legislation, they seem increasingly arbitrary and, as such, could be dispensed with.

Second: Congress should consider adopting the E.O.’s language of “serious human rights abuse” to replace “gross violations of internationally recognized human rights.” To avoid this standard becoming too amorphous, the legislation could then include an exemplary list of human rights abuses drawn from 22 U.S.C. § 2304(d)(1) but also including sexual violence and persecution on the basis of race, religion, ethnicity, or other grounds. To be sure, such actions can be characterized as “torture” or “cruel treatment,” but it would be helpful for those proposing designations to list these abuses directly to remove any ambiguity. In addition, having an express list of abuses would also obviate any potential defenses and signal U.S. opprobrium for such conduct given that these are all human rights abuses against which the international community has formed a firm consensus.

Third: Congress should ensure dedicated funding for GloMag enforcement, including potentially funds that civil society organizations could use to help underwrite their own supportive efforts. One of the biggest challenges to a full execution of GloMag and the E.O. remains the lack of sufficient resources to undertake the considerable work required at both State and Treasury to prepare complete designation packages (and make potential delisting decisions), notwithstanding the outside assistance received from congressional committees and civil society. Indeed, it takes approximately 6-9 months to move from the fact-finding phase to the designation phase, a period of time in which individuals can continue to undermine human rights and good governance. In the absence of the necessary human power, the concomitant backlog may result in delays in moving against bad actors from those countries or situations that are not in the headlines or the subject of focused U.S. attention. This furthers an appearance of selective implementation, a perennial criticism of sanctions designations.

Fourth: I would encourage greater transparency around the internal deliberative process preceding sanctions designations where possible, particularly with Congress and civil society entities that are feeding in information for sanctions consideration. A lack of communication may inhibit such organizations from further participation or leave survivor communities confused about the U.S. government’s priorities. I recently participated in two fora with victims and survivors from Sri Lanka and Xinjiang; all were aware of – and deeply grateful for – the sanctions that have been imposed to date on perpetrators from those two situations. At the same time, they had questions about why other individuals whom they consider equally responsible for abuses were not also included in the programs. Obviously, the executive branch must balance a range of competing equities in deciding whether to deploy sanctions across the full spectrum of the bilateral relationship. Diplomats, for example, may be working other levers of influence that might be compromised if a key interlocutor is sanctioned. All that said, it is still helpful to have greater transparency and offer feedback on why designations that might be otherwise appropriate have not moved forward.

Fifth: Likewise, the U.S. government should be more express about the nature of the behavioral changes that are expected in order to justify delisting an individual or entity, where possible. Bespoke benchmarks would offer designees a concrete offramp and also enable the U.S. government to more effectively track the  impact of its sanctions designations. GloMag already allows the president to terminate sanctions if the designee has significantly changed their behavior, has been prosecuted for the offense or has otherwise “paid an appropriate consequence,” or is committed to eschewing sanctionable behavior going forward. As such, the president prioritizes actions “that are expected to produce a tangible and significant impact on the sanctioned person and their affiliates, to prompt changes in behavior or disrupt the activities of malign actors.” But under the current law, these expected or desired behavior changes are not publicly articulated – including to designees – potentially decreasing the effectiveness of the sanctions. To the extent possible, therefore, the government should articulate the desired behavior changes to give designees an understanding of how they can achieve delisting if they are inclined to remediate their behavior.

Sixth: Congress should continue to encourage outreach to other nations to further multilateralize targeted human rights and anti-corruption sanctions, as has been called for by a consortium of human rights organizations concerned with the genocidal abuses in Xinjiang. This will expand their reach, strengthen their impact, and heighten their deterrent effect. States should also formalize and routinize information sharing around visa restrictions and asset freezes. Such collaboration across borders will make it much harder to evade sanctions.

Seventh: Given that sanctions are at their most effective when they are rigorously implemented, the United States should look for ways to build the capacity around the globe to enforce unilateral and multilateral sanctions, particularly in countries with weak regulatory environments, as has been argued elsewhere by The Sentry.

Eighth: Particularly with respect to legal entities that have been sanctioned, the United States should better coordinate its sanctions designations with its anti-trafficking authorities. This would involve coordinating sanctions with trade restrictions, export controls, withhold release orders (WROs), and supply chain curtailment if such entities are also implicated in forced labor or human trafficking. The welcome re-appointment of a sanctions coordinator within the State Department will assist in this regard.

Ninth: Although these sanctions regimes are primarily designed as behavioral modification tools, the work that goes into a sanctions designation could also be repurposed to support accountability efforts in foreign courts, U.S. courts, or international tribunals. To be sure, there will inevitably be certain individuals who may be out of reach of any national or international criminal jurisdiction, and for whom, therefore, a sanctions regime is the most robust response available. Others, however, may be amenable to criminal charges. As such, data generated through these sanctions processes should be actively shared across law enforcement and with international accountability mechanisms, as relevant. In short, these tools are not mutually exclusive, and there may be sanctioned individuals who could also be prosecuted criminally under international crimes statutes.

Tenth: Finally, I would recommend consideration of a framework to transfer and repurpose seized assets from perpetrators to victims – in appropriate circumstances and potentially with judicial oversight and due process protections – as is being considered in Canada. (The bill is here). This could involve greater coordination with the Department of Justice, which can initiate criminal and civil forfeiture of assets owned by, or sufficiently connected to, sanctioned individuals and entities within the United States. This coordination was exemplified with respect to Yahya Jammeh, the former president of The Gambia. Jammeh was sanctioned in December 2017; in July 2020, the U.S. attorney’s office filed a civil in rem action against his multimillion-dollar mansion in Potomac, MD.

I make these latter two recommendations cognizant of the fact that sanctions are, first and foremost, meant to be a behavior modification tool and not necessarily an accountability tool, and so a proposal to seize and distribute assets or initiate criminal or civil enforcement actions may be hard to reconcile with the primary purpose of sanctions. That said, and as discussed above, sanctions are a flexible tool that serve a range of purposes. In addition to imposing significant reputational harm and logistical constraints on those publicly sanctioned, sanctions can also lead to additional accountability measures, and to the extent possible, GloMag and other sanctions regimes should support rather than foreclose these additional accountability channels.

There will inevitably be certain individuals who will never change their behavior, or who have committed grave human rights abuses that demand punishment. For example, President Jammeh is no longer in power in The Gambia but has, so far, evaded prosecution  (he is enjoying safe haven in Equatorial Guinea in fact). It is hard to imagine a set of circumstances in which it would be appropriate to delist him given his long history of rights abuses unless he is extradited to a jurisdiction that is willing and able to prosecute him. For cases such as this one, Congress should think creatively about how the assets of sanctioned individuals might, when appropriate, contribute to the rehabilitation of victims so these resources are not simply rendered inert. Congress should also consider how to hold perpetrators accountable for their prior crimes if and when they fall within the United States’ jurisdictional reach. In this regard, I am hopeful that Congress will give serious consideration to a crimes against humanity statute to plug some of the continuing gaps in the U.S. penal code.

The mini-symposium that follows will feature posts by several other individuals who testified before the Lantos Commission, including activists and lawyers working to promote human rights and fight corruption worldwide and helping to prepare packages for future potential GloMag designations.

Image: The US Treasury Building located in Washington DC. Stock.

 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Member of the editorial board of Just Security. Follow her on Twitter (@BethVanSchaack).