On 24 June 2021, the House of Lords is due to discuss a question for short debate tabled by Lord Clement-Jones (Liberal Democrat), to ask the Government “what assessment they have made of the effectiveness of the Magnitsky-style sanctions issued under the Global Human Rights Sanctions Regulations 2020”.

What are Magnitsky sanctions?

‘Magnitsky’ sanctions target those responsible for human rights violations or corruption. The name derives from the case of Sergei Magnitsky, a Russian tax lawyer who in 2007 uncovered a $230 million fraud committed by tax officials in the Russian Interior Ministry. He was jailed in Russia in 2008 on charges of tax evasion and died in prison in 2009, having suffered human rights violations while in detention. In 2012, the US Congress passed the Sergei Magnitsky Rule of Law Accountability Act, which enabled the US to impose sanctions on individuals identified as being involved in the detention, abuse or death of Sergei Magnitsky and the ensuing cover-up, or involved in gross human rights violations in Russia more generally. The Global Human Rights Magnitsky Accountability Act, passed in 2016, extended this regime by allowing the US to impose sanctions against any foreign nationals responsible for gross human rights violations and any foreign government official responsible for acts of significant corruption.

Other countries have also passed their own Magnitsky legislation, including Canada in 2017 and the European Union in 2020.

How does the UK’s sanctions legislation work?

The UK also has a legal framework for imposing Magnitsky-style sanctions. The Sanctions and Anti-Money Laundering Act 2018 (the 2018 act) created a domestic legal framework to allow the Government to impose new sanctions, or to update or lift existing ones, after the end of the Brexit transition period. Section 1 of this act gives a minister powers to impose sanctions on people and entities by making sanctions regulations if the minister considers it appropriate. Sanctions regulations can only be made for the purpose of complying with a United Nations (UN) obligation, another international obligation or to fulfil one of the discretionary purposes listed in section 1(2) of the act. This includes (among other things) to:

  • provide accountability for or be a deterrent to gross violations of human rights, or otherwise promote—
    i. compliance with international human rights law, or
    ii. respect for human rights,
  • promote compliance with international humanitarian law, or
  • promote respect for democracy, the rule of law and good governance.

Sanctions that can be imposed using these powers include (among other things) financial sanctions and immigration sanctions. Financial sanctions can, for example, freeze the funds of a person designated by the sanctions, or prevent them from receiving financial services. Immigration sanctions can be used to impose travel bans by ensuring that a designated person is refused leave to enter or remain in the UK.

In July 2020, the Government used powers in the 2018 act to make the Global Human Rights Sanctions Regulations 2020. The Secretary of State for Foreign, Commonwealth and Development Affairs, Dominic Raab, explained how the regulations would work:

These sanctions are a forensic tool, which allows us to target perpetrators without punishing the wider people of a country that may be affected. The regulations will enable us to impose travel bans and asset freezes against those involved in serious human rights violations. We are talking about, first, the right to life, where it is threatened by assassinations and extra-judicial killing; secondly, the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment; and, thirdly, the right to be free from slavery, servitude or forced or compulsory labour. The powers enable us to target a wider network of perpetrators, including those who facilitate, incite, promote or support these crimes. This extends beyond state officials to non-state actors as well. So if you’re a kleptocrat or an organised criminal, you will not be able to launder your blood money in this country.

When considering whether to designate someone under the global human rights sanctions regime, the secretary of state must have “reasonable grounds” to suspect the person is involved in relation to human rights violations or abuses. They must also be satisfied that the designation is appropriate, having regard to the purpose of deterring or providing accountability for such activities, and the likely significant effects on the person, as far as known.

The first sanctions imposed under these regulations targeted:

  • 25 Russian nationals involved in the mistreatment and death of Sergei Magnitksy;
  • 20 Saudi nationals involved in the death of journalist Jamal Khashoggi;
  • two high-ranking Myanmar military generals involved in systematic and brutal violence against the Rohingya people and other ethnic minorities; and
  • two organisations involved in forced labour, torture and murder in North Korean gulags.

Since these sanctions were imposed in July 2020, other entities and individuals have also been designated under the global human rights sanctions regime in the Chechen Republic, Xinjiang in China, Myanmar and Belarus, and former officials from the Gambia, Pakistan, Venezuela and Ukraine.

In April 2021, the Government used the powers in the 2018 act to make the Global Anti-Corruption Sanctions Regulations 2021. Dominic Raab explained how this sanctions regime would work:

It will prevent corrupt actors from using the UK as a haven for dirty money while combating corruption around the world. […] As with our global human rights sanctions approach, the anti-corruption sanctions are intended not to target whole countries or peoples but, rather, the individuals who are responsible, and should be held responsible, for graft, and the cronies who support or benefit from their corrupt actions. These regulations will enable us to impose asset freezes and travel bans on individuals and organisations who are involved in serious corruption. Our approach is grounded in and based on the UN convention against corruption and related instruments. It has a clear focus on bribery and misappropriation of property, and that includes embezzlement.

Similar standards apply to designating someone under the global anti-corruption sanctions regime as apply to the global human rights sanctions regime. The secretary of state must have “reasonable grounds” to suspect they are involved in serious corruption and must be satisfied that the designation is appropriate.

The first wave of sanctions made under the global anti-corruption sanctions regime targeted:

  • those involved in the diversion of $230m of Russian state property through a fraudulent tax refund scheme uncovered by Sergei Magnitsky;
  • Ajay, Atul and Rajesh Gupta and their associate Salim Essa, for their roles in serious corruption in South Africa;
  • Sudanese businessman Ashraf Seed Ahmed Hussein Ali, widely known as Al Cardinal, for his involvement in the misappropriation of significant amounts of state assets; and
  • several individuals involved in serious corruption in Latin America, including facilitating bribes to support a major drug trafficking organisation and misappropriation that has led to citizens being deprived of vital resources for development.

In addition to imposing sanctions under these global regimes, the Government can also use powers in the 2018 act to establish sanctions regimes relating to specific countries including on human rights grounds. For instance, the Government made the Myanmar (Sanctions) Regulations 2021 following the coup staged by the Myanmar military in February 2021. The regulations impose trade restrictions on goods and technology that may be used to repress the civilian population, and create a framework for imposing asset freezes and travel bans on individuals and entities. The Government said the purpose of the regulations was to “promote the peace, stability and security of Myanmar; promote respect for democracy, the rule of law and good governance in Myanmar; discourage actions, policies or activities which repress the civilian population in Myanmar; and promote compliance with international human rights law and respect for human rights in Myanmar”.

Another legal avenue is the Proceeds of Crime Act 2002, which was amended in 2017 to add Magnitsky-style provisions. The act allows for property obtained through “unlawful conduct” to be recovered through a civil procedure in the High Court. The amended definition of “unlawful conduct” includes gross human rights abuses that occur outside the UK.

How effective are Magnitsky-style sanctions?

The Government has said that: “Sanctions are one response among a number of diplomatic tools we can deploy around the world as part of a broader political strategy in order to change or send a political signal regarding particular behaviours”. It said it would continue to consider targets globally, “guided by the objectives of the human rights sanctions regime and the evidence”. In response to calls for further Magnitsky-style sanctions to be imposed, the Government has often taken the line that “it is not appropriate to speculate on who may be designated in the future, as to do so could reduce their impact”.

Writing about the US Global Magnitsky Act, Mark Normington, of the international non-governmental organisation Global Witness, agreed that targeted sanctions “are an important tool in our arsenal”. He suggested there were a number of advantages to Magnitsky-style sanctions:

By targeting individuals rather than entire countries or sectors, the Magnitsky Act avoids broad-based sanctions that can affect vulnerable populations. It also means that malicious individuals and networks can be sanctioned despite broader foreign policy priorities which could otherwise prevent effective actions—for instance the 2017 and 2018 Global Magnitsky sanctions […] involved Saudi and Israeli nationals, countries which are strategic allies of the US and thus unlikely to be the subject of broader financial sanctions.

While agreeing with these points, John Morrison, chief executive of the Institute for Human Rights and Business think tank, concluded that Magnitksy sanctions “are not a silver bullet”. He suggested that independent oversight might be needed to “ensure that names are added and removed for human rights reasons alone”. He also argued that this relatively new approach raised a number of broader questions, such as:

  • To what extent does targeting an individual’s economic interests represent a remedy for damages done to victims or to deter others from committing similar offences?
  • Do Magnitsky-like approaches represent a new chapter in economic sanctions for human rights abuse—moving away from blaming whole countries for the crimes of their leaders towards targeting specific individuals?
  • How will we assess if these measures are any more effective in securing better human rights outcomes?

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Cover image by Christopher Bill on Unsplash.