Symposium on Sanctioning Human Rights Violations: Magnitsky Laws in the World – Lessons Learned

Record prepared by Mr. Raymond Andaya,

based on reporting by Ms. Meha Kaul and Ms. Chihiro Toya.

A Joint Symposium with Human Rights Watch and The University of Tokyo International Law Training and Research Hub.

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Session 1 (12 March 2021, 18:00-21:00)

The Symposium was opened by Professor Ai Kihara-Hunt, emphasizing its importance as a the first ever symposium on Magnitsky Laws in Japan. It aims, first, to spread awareness on the Law by sharing lessons learned from the adoption of Magnitsky legislation in other countries, and second, to provide space for discussions on the merits of enacting such legislation in Japan. Ms. Kanae Doi, Japan Director at Human Rights Watch, provided opening remarks by stressing the importance of remembering the legacy of the Magnitsky Act. She highlights that one of the fundamental merits of such legislation is that because it uses targeted sanctions against specific human rights abusers, it is able to avoid the highly political notion of sanctions that tend to affect relations between governments. She also underscored that Japan must implement Magnitsky Laws to be able to respond to human rights violations in Myanmar, Hong Kong, the DRC, and other parts of the world. She notes, “there are human lives being torn apart and people that should be held accountable.”

Mr. Bill Browder: The Foundation of Magnitsky Law

and the Case of the US

Co-founder and CEO of Hermitage Capital Management, Mr. Bill Browder is well-known as a pioneer and primary advocate of Magnitsky legislation. He started the panel presentations by sharing his personal background and how large-scale corruption in Russia, where the investment fund management company he co-founded maintains an office in, has motivated his advocacy for global human rights legislation. He shares that he graduated with a degree from the Stanford Business School in 1989. With the fall of the Berlin Wall in that same year, he saw an opportunity to become one of the biggest capitalists in Eastern Europe. He initially moved to London, and then Moscow, where he set up his investment fund management company, that would later become the largest foreign investment fund in the country. It did not take long, however, before he realized the breadth of corruption Russia, as he found out that the companies he was investing in were being “robbed” by Russian oligarchs. Because of a corrupt court system and the lack of dependable law enforcement, Mr. Browder realized that he would have to deal with these unfair bureaucratic practices on his own. He, along with a staff of researchers, publicized this scandal through a ‘naming and shaming’ campaign, setting off a reaction from newly elected President Vladimir Putin. Putin vowed to crack down on these oligarchs named in Mr. Browder’s exposition. Out of fear of being arrested for tax evasion, oligarchs opted to conduct business with President Putin. His partnership with the country’s oligarchs made him the richest man in Russia by the early 2000s. Mr. Browder was, then, declared as a threat to national security and deported to London in 2005. He began liquidating his holdings in Russia so that they cannot be seized and arranged for the evacuation of his staff and their dependents.

In 2007, Mr. Browder received a call from his remaining staff in Moscow about their office being raided by a group of police officers, looking for more information on his investment holding companies. The Russians fraudulently re-registered these companies under the name of a known criminal. Suspicious of what was happening in Moscow, Mr. Browder hired Mr. Sergei Magnitsky to help him figure out what the Russians’ intentions were. Magnitsky came back to Mr. Browder with some remarkable findings: the Russians were attempting to steal his assets. However, because these assets have already been liquidated, they instead went to the tax authority (with forged documents) and filed an amended tax return claiming that “their” company had overpaid and that the tax was erroneously paid. These fraudulent activities allowed them to get a tax refund which is the largest in Russian history. Initially, Mr. Browder and Mr. Magnitsky opted to file criminal complaints while exposing the story to the media. Unfortunately, in 2008, Magnitsky was arrested, put in pre-trial detention, and tortured to force him to withdraw his sworn testimony on the criminal complaint. Magnitsky was later brought to Moscow’s Butyrka prison where he was eventually murdered in November 2009. After his death, Mr. Browder vowed to seek justice for Magnitsky’s death, even while he was outside Russia. Magnitsky left behind 450 meticulously written complaints in detention, documenting the abuse they did to him, including who did it and how. Browder got copies of these making it one of the most well-documented cases of human rights violation to come out in Russia in the last 35 years, in terms of evidence.

Browder decided to focus on the gaps in the international legal system, noticing that such perpetrators tend to enjoy impunity. Most of these perpetrators were able to keep money in the West, such as through British banks. This gave Browder an idea to develop a mechanism in which such people’s assets were frozen in the countries where they were kept. Mr. Browder approached two US Senators, Benjamin Cardin and John McCain to suggest legislation that would freeze American assets and entry visas of perpetrators of grave human rights violations. This later became the Magnitsky Act introduced in October 2010. Senators McCain and Cardin later pushed for the expansion of the Act to include dictators in other countries, as the Global Magnitsky Law. This set off a chain reaction of countries passing Magnitsky legislation, with the EU being one of the latest, most significant, actors in the international community responding to advocacy for global human rights legislation.

Asked about his thoughts on the globalization of the movement for human rights legislation that he initiated, Mr. Browder remarks that the fact that this started out as a ‘battle’ between him and President Putin, helped the movement gain traction as potentially being a way of holding accountable human rights violators and corrupt kleptocrats not only in Russia, but also in China, Venezuela, Saudi Arabia, and other countries. He believes that the global movement has “taken a life of its own,” as a tool to address new global challenges related to human rights violations and corrupt governance. Mr. Browder was, then, asked about the prospects for centralizing Magnitsky Law. He notes that there might be hope in harmonizing various national Magnitsky Acts. However, there is currently too much variety in provisions for sanctioning individuals. He also expressed disappointment over the recently announced list of EU Magnitsky law-sanctioned individuals which lacks the names of those who were involved in Magnitsky’s murder. Mr. Browder further notes the importance of proper sanctioning based on human rights legislation. He states that in many countries, the major issue is that the government either fails to prosecute or is not interested in prosecuting human rights violators. It is in this context that Magnitsky Laws hopes to provide some recourse towards justice. With its implementation, however, being discretionary and not mandatory, Mr. Browder remarks that it is also in the interest of activists to put pressure on their governments and find allies to push for more effective implementation of the legislation.

Prof. Irwin Cotler: The Case of Canada

Professor Irwin Cotler begins by recognizing Bill Browder’s historical contribution to the global human rights legislation movement, and by stating that Mr. Browder’s efforts inspired his own involvement in Canada for the cause of Magnitsky legislation. Prof. Cotler, Chair of the Raoul Wallenberg Center for Human Rights, is also Professor Emeritus at McGill University, former Justice Minster and Attorney General of Canada, and long-term member of the Canadian Parliament. He used his experience and capacity to initiate the adoption of Canada’s version of the Magnitsky Act to bring justice and accountability to cases of human rights violations. He begins by explaining how the Magnitsky regime developed in Canada. Following a meeting with Mr. Browder in November 2010, Prof. Cotler began engaging with various ministries in the government and the parliament to better understand the context of Magnitsky legislation. Prof. Cotler aimed for the adoption of the law modeled after the American Magnitsky Act. In 2012, he launched the Justice for Sergei Magnitsky Inter-Parliamentary Group, which led to the adoption of relevant resolutions in the Canadian Parliament. The assassination of Boris Nemtsov in 2015 not only shifted perspectives towards democracy in Russia; it also strengthened Prof. Cotler’s case for Canada’s more significant role in global Magnitsky legislation. In March 2015, the House of Commons unanimously adopted a motion calling for Magnitsky legislation. In June of the same year, Cotler introduced the Global Magnitsky Human Rights Accountability Act, with support from all parties in the parliament. In October 2017, a Magnitsky Law was finally unanimously adopted as law in Canada.

Prof. Cotler attributes the adoption of the Magnitsky Law in Canada to the involvement of civil society and the NGO community. Furthermore, the Parliamentary Caucus for human rights made Magnitsky legislation a priority. Prof. Cotler, then, shares the following objectives in relevance to advocacy for passing similar legislation in Japan’s Diet: to combat the pervasive culture of criminality and corruption, and the impunity that underpins it; to deter perspective violators by letting them see that there is a price to be paid for corruption and criminality; to allow parliaments and governments to make the pursuit of criminality a priority; to allow for engagement between the parliament and ministries, as a whole-of-government effort; to affirm thereby through this the rule of law, justice, and accountability; to come up with legislation that does not interfere with the sovereignty of any country, but rather sanctions major human rights violators; to protect one’s own country’s businesses abroad, the integrity of commerce, businessmen/citizens working abroad; to target human rights abusers and prevent them from exporting a culture of criminality and corruption; to empower the government to become protectors of human rights, and not enablers of human rights abuse and criminality; and, to tell human rights defenders in different countries that they are not alone.

Prof. Cotler hopes that the internationalization of the global justice movement for Magnitsky legislation will continue. Furthermore, with its recent adoption in the EU, he hopes that Japan will become a crucial partner in this global movement especially now that cases of human rights violations in China are on the rise and the rest of the world is witnessing a retreat of democracy in countries where there have been assaults on media freedom and imprisonment of activists and human rights defenders. He emphasized the importance of the government, the parliament, civil society, and other stakeholders coming together in the case of Canada, to be able to pass Magnitsky legislation. He concludes by saying, “Japan’s adoption of Magnitsky Laws will be a historic moment for the G7 and the community of democracies, as well as for the pursuit of justice on behalf of victims of human rights violators.”

During the Q&A segment, Prof. Cotler highlighted that Magnitsky Laws aim to sanction violators and not any particular country. He believes that these human rights violators must be sanctioned regardless of where they come from, and that geopolitical interests must not influence decisions made over whether or not these sanctions will be enforced. Asked about whether specific victim groups are preferred when it comes to targeting individual violators, Prof. Cotler states that there has been, so far, a wide variety of configurations of violations and violators being sanctioned, and that, therefore, there is no apparent problem of equity.

Baroness Helena Kennedy: The Case of the UK

Baroness Helena Kennedy is one of the UK’s leading legal experts, a barrister in human rights law and civil liberties and constitution issues, a member of the House of Lords in the British Parliament, and Chair of the International Commission of Jurists. She is also one of the major actors who pushed for Magnitsky Law in the UK, as well as a leading figure in the global Magnitsky movement. He began by paying tribute to Mr. Browder for being “an instrument of enormous change” in the field of global justice, especially given the limitations of international justice mechanisms like the ICJ and the ICC.

In July 2020, the UK introduced a global human rights sanctions regime. So far, the UK has sanctioned 80 individuals across 10 countries. There are 25 Russians on the list in relation to the death of Magnitsky, particularly those involved in Russian prison and court systems. Also included are 20 Saudi nationals involved in the murder of journalist Jamal Khashoggi, 2 high-ranking Myanmar generals, 2 organizations in North Korea, 4 Zimbabwean chiefs, 10 politicians from Gambia, Pakistan, and Venezuela, as well as 8 Belarusians involved in the crackdown against democracy protests.

She, then, proceeded to give details on the current state of Magnitsky-related sanctions from the perspective of the UK. As a member of the Inter-parliamentary Coalition on China, together with Prof. Cotler, Baroness Kennedy has also been looking at Chinese officials’ treatment of Uyghurs and democracy protestors in Hong Kong. She laments, however, that despite the presence of Magnitsky Laws in the country, the UK has not yet been able to use targeted sanctions against specific violators in China. Meanwhile, there have also been concerns on the restriction of media freedom around the world as well as a tragic increase in assassinations of journalists not only in conflict zones but also in other relatively peaceful countries. Because of this, she opined that Magnitsky sanctions provide protection especially to human rights defenders and journalists. She reported that Canada and the UK have come together to spearhead a global project in which 40 countries have pledged to media freedom and to create legal opportunities and recourse. Given all this progress, Baroness Kennedy hopes that Japan’s own efforts towards Magnitsky legislation will take a similar direction.

Asked about the process of including people in the list of individuals to be sanctioned as well as civil society’s particular role in this process, Baroness Kennedy believes that NGOs, for instance, can play an important part in informing the government. Furthermore, civil society can assume the role of lobbyists, putting pressure on governments to include certain people on sanctions lists. For example, the EU, which recently announced the inclusion of people from China, Eritrea, South Sudan, and other places, has been listening and responding to different calls from groups within the Union. Meanwhile, when asked about what developments led to the UK’s adoption of Magnitsky Laws, she remarked that there has been an intellectual shift regarding the attitude toward human rights within the UK. However, countries including the UK may still be confronted by the dilemma of balancing human rights and national interests. She cited, for example, the case of the US choosing not to sanction the Saudi Arabian prince, partly because the US is still very committed to ending the war in Yemen with the Saudi government as its partner. The UK, according to her, is having a similar problem over China, with the two countries’ longstanding trading relations and diplomatic ties, possibly being affected by any stance against the suppression of democratic protests in Hong Kong.

Panel Discussions: Lessons Learned

and the Way Forward

The panel discussions began with a recorded video message from MP Fabian Molina of Swiss National Council. In the video message, he highlighted the utility of using smart sanctions towards high-ranking individuals who commit human rights abuses or corrupt practices. He also notes that while there may be existing legal gaps and shortcomings even in countries like Switzerland, making it difficult to respond quickly and appropriately to human rights problems, clearly defined and targeted sanctions can serve as a remedy to fill these gaps and shortcomings. Mr. Molina stated that intergovernmental organizations must push a multilateral basis for international sanctions that would put pressure on states and individuals that violate human rights.

This recorded statement was, then, followed by comments from Mr. Simon Henderson, Head of Policy at Save the Children Australia. Mr. Henderson highlighted the current state of the Australian movement for a Magnitsky-type sanctions regime, noting that sanctions could be implemented under the Charter of the United Nations Act 1945 and the Autonomous Sanctions Act 2011 and associated regulations. Presently, Australia only has an Autonomous Sanctions Act as a flexible tool to influence foreign government entities. Mr. Henderson stated, however, that this law lacks flexibility and precision. First, it has failed to target relevant individuals who committed human rights violations, violations of international humanitarian law, and government corruption. The Act itself fails to even mention ‘human rights.’ The terminology was only ever mentioned in the explanatory memorandum; no reference to corruption was even made. Where sanctions have been applied, such as in the case of Zimbabwe and Syria, little information has been given as to what form of human rights violations were targeted. Secondly, there was a lack of information about the criteria and evidence used to apply autonomous sanctions. This poses a challenge to the decision-maker in defending the criteria that needs to be followed. Thirdly, he shared that there has unfortunately been a lack of civil society engagement in Australia in terms of the process of administration of sanctions under the Autonomous Sanctions regulations. This is a fundamental difference in other jurisdictions such as in the US. Finally, Mr. Henderson notes that there has been a lack of parliamentary oversight under the existing Autonomous Sanctions Act. It lacks mechanisms for reporting or review through Parliament. There have been attempts in Australia to address these gaps through the introduction of a previous Magnitsky Bill in 2018, but it was not comprehensive in its protections. There has also been a parliamentary inquiry called by the Foreign Minister at the end of 2019 through the Joint Standing Committee on Foreign Affairs, Defence and Trade. Civil society, academics, and lawyers’ groups have had substantial engagement with parliamentary inquiry, calling for a new Magnitsky sanctions regime for Australia. Mr. Henderson reported that they are now in the process of waiting for government response to the inquiry’s report. That will be followed by drafting of a bill, and will likely involve comprehensive discussions comparing legislation in different jurisdictions. Asked about whether there are potential disagreements between civil society groups in terms of their role, for instance, in humanitarian contexts, Mr. Henderson stated while there was broad agreement among civil society, on area where there must be clarity to avoid disagreements is on are provisions on humanitarian assistance and the role of humanitarian agencies. In the present Autonomous Sanctions regulations in Australia, there are references to humanitarian assistance but no details as to what that includes, creating uncertainty.

Finally, Mr. Paul Namkoong from the University of Tokyo’s International Law Training and Research Hub provided the panel with some lessons learned from Magnitsky Law implementation and how it fits into the case of Japan. He raised three points from his previous research. First, he talked about the effectiveness of Magnitsky sanctions. Observers have noted that it is far too early to quantitatively assess the effectiveness of sanctions. Furthermore, the ability to deter further violations is inherently difficult to measure. Mr. Namkoong added that sanctions programs tend to focus on a small set of offenders, which means sample sizes are still too small for any comprehensive analysis. It is possible, nonetheless, to look at previous assessments of targeted sanctions on individuals. The UN, for instance, has released reports on its sanctions related to the financing of terrorist organizations. The research done on this can be a basis for analyzing the effectiveness of Magnitsky sanctions. Mr. Namkoong added that individual sanctions, while unable to shift regimes, can deter members of inner circles from being in their worst behavior. When targeted individuals are named and shamed, lose access to international finance and the ability to send their children to school in other countries, life becomes difficult for them, he explains. The inability to live the way they have been used to becomes a serious deterrent for human rights violations. Additionally, banks and companies that do business with these individuals also face the prospect of sanctions, thereby creating pressure to align business practices with human rights principles.

Responding to a previous comment about the difficulty of measuring the effectiveness of Magnitsky sanctions, Mr. Browder insisted that it is apparent that Magnitsky Law sanctions are working “because of how mad everybody that has been put on the list gets.” People who get included in these sanctions lists essentially become a ‘financial pariah’ in which every bank closes their accounts. Everyone else who has not been but think they might get listed also care. While the exact effect cannot be measured, Mr. Browder reminded the audience, “it’s obvious that in a world where there are no consequences for doing bad things, people will do more bad things than in a world where there are consequences for doing bad things. It’s just plain and simple logic!” Magnitsky sanctions, he added, are real punishments for committing human rights violations and engaging in corrupt practices. Meanwhile, Prof. Cotler noted the important role of engagement between parliaments and civil society in pushing for Magnitsky-type legislation. He added, however, that in places like Canada where Magnitsky legislation is already in place, the government has become the principal actor in terms of determining who will be sanctioned. At this point, there is no built-in institutional role for either the parliament or civil society. Prof. Cotler suggested that what must be done, based on the Canadian experience, is to build in a role for the parliament both in deciding who will be sanctioned and in the oversight of the process. He remarked that it is somewhat ironic that despite being a principal actor in the adoption of the legislation while the government was often reluctant about it, the parliament lost an important role now that the legislation is already in place. Built-in involvement by the parliament and civil society is needed in the sanctions determination framework to avoid the executive branch of government being the sole actor in the process. Baroness Kennedy agreed with these statements by Prof. Cotler. She recollected how, in the case of the UK, they made the same mistake of not thinking through the need for building in parliamentary oversight, greater transparency, and access to civil society actors in the sanctions process.

After these responses, Ms. Kanae Doi took over to moderate discussions with questions from participants. She asked the panelists for advice for her Magnitsky Law advocacy in Japan, specifically in terms of how to strengthen engagement between parliamentarians and civil society actors. Mr. Henderson focused on a particular challenge in the case of Australia: the issue of resources. From a civil society perspective, he explained that they developed close relations with embassies and high commissions, particularly with the US embassy. The US government sent representatives who helped Australian civil society actors in talking about the potential policies and responses that could apply in Australia. Another factor to consider in terms of resources is how civil society can help governments in the designation process. Mr. Henderson stated that civil society often has stronger networks on the ground and a better understanding of how human rights violations are impacting people than the government. This strength is particularly useful if civil society is to have any role in the preparation of briefs that would guide government officials in the sanctions designation and implementation processes. Mr. Browder, meanwhile, reminded the audience that it is typically a nonpartisan issue to not allow human rights violators and kleptocrats into one’s country, and allow them to use the country’s banking systems and to keep their assets. He suggested that problems can arise, however, in two contexts. First, there can be lobbying from certain countries, putting pressure on others not to adopt Magnitsky legislation. Second, the power of the bureaucracy in certain countries often inhibits the passage of such laws. Part of the reason for this, Mr. Browder explains, is that foreign ministries are often in the business of maintaining smooth relations with other countries, no matter how good or bad their human rights records are. He adds, “the moment someone gets sanctioned, they are the ones who have to take the phone call from their counterparts in the other country.” Advocates of human rights legislation must overcome this challenge inherent in bureaucratic processes. Furthermore, there must be a formal pressure mechanism coming from parliamentary oversight akin to the congressional trigger mechanism in the US. Responding to this bureaucracy issue raised by Mr. Browder, Baroness Kennedy recalled her experience as a parliamentarian who has seen government institutions often preferring to do things “behind the scenes.” She stated that this “old way” of doing things have not been that successful, particularly in dealing with issues of human rights. Prof. Cotler, meanwhile, returned to the question on strengthening engagement between parliaments and civil society. He recollected that in the case of Canada, the appointment of Chrystia Freeland as Foreign Minister, with her experience as a journalist and activist, became a “game-changer” for Magnitsky legislation in the country. She joined hands with Canadian parliamentarians and brought in the executive branch of government, along with civil society, leading to the adoption of a Global Justice for Sergei Magnitsky legislation. In the case of Canada, the parliament has remained active even without an institutionalized role. For instance, the Canadian parliament became the first in the world to make a determination that the case of the Uyghurs in China is a case of genocide, and subsequently, recommended the imposition of sanctions. The Canadian government has yet to make a determination if it will move in this direction. The takeaway from all of this, Prof. Cotler explained, is that the institutionalization of parliament and civil society role is needed to activate the process and make it more accountable and transparent.

Ms. Doi, then, asked the panelists for recommendations on what kind of system can be used to institutionalize civil society involvement in the processes related to Magnitsky legislation. Mr. Browder cited the experience of an organization based in Washington, DC called Human Rights First. The organization, he explained, is part of a public-private partnership with the State Department, coordinating submissions so that victims understand the standard of proof that needs to be presented, while the government is able to properly organize sanctions packages. Mr. Browder suggested that this model of engagement is something that can be emulated in Japan by Human Rights Watch. An organization called Redress is doing the same in the UK, while Transparency International aims to perform a similar function for Europe. Prof. Cotler added to Mr. Browder’s suggestion, stating that the Raoul Wallenberg Centre for Human Rights is in touch with Human Rights First, and that this public-private partnership model is an ideal framework for effectiveness that is currently being explored in Canada. Speaking from the Raoul Wallenberg Centre for Human Rights’ experience, Prof. Cotler added that the establishment of a Raoul Wallenberg All-Party Parliamentary Caucus for Human Rights within the Centre has been particularly helpful. The issue of Magnitsky sanctions is an ongoing item in the Caucus’ agenda. This, he explained, ensures continued engagement in the parliament.

Finally, Ms. Doi asked the panelists about how to address potential opposition against Magnitsky-type legislation from the business community. Mr. Browder responded by stating that no business will openly support a Magnitsky Act because they would not want to alienate governments that they are doing business with. He cites the example of how business people continued to show up at Crown Prince Mohammed bin Salman’s ‘Davos in the desert’ summit even after the death of Jamal Khashoggi. Mr. Browder, nonetheless, added that no business wants to be put on the record opposing human rights legislation. The key, according to him, is to name and shame those who are involved in opposing legislation aimed at punishing “torturers and murderers.” Baroness Kennedy, then, addressed an issue raised by a participant of the symposium. She was asked about how to consider the impact on children of having their parents on these sanctions lists. She explained that children of criminals always suffer the consequences of their parents being exposed as criminals, but that this is not enough reason for dropping the business of dealing with criminality. She urged that when talking about these grievous crimes against humanity and the people who are orchestrating and enabling them, a more important consideration is the presence of victims that are suffering far more enormous consequences. Finally, Prof. Cotler expressed concern about Saudi Arabia’s appointment as chair of the G20, especially considering the ongoing plight of human rights defenders in Saudi Arabia. He laments that the G20 concluded without any of the issues of these human rights defenders being brought up. He believes that this is not only due to the impact of the business community on the summit, but also the reluctance at the highest levels of national governments to be open about discussing human rights in that platform. Ms. Doi concluded the panel discussions by stating that if any meetings on Magnitsky sanctions can be done in the upcoming G7 summit, it can be a great incentive for the Japanese government to pass such legislation in the country. She noted, “international solidarity and encouragement, and perhaps a little bit of pressure, will be very much appreciated in Japan.”

Prof. Kihara-Hunt closed this session by reading a message forwarded by MP Shiori Yamao, member of the Diet and co-founder of the Inter-Parliamentary Alliance. Her remarks highlighted ongoing human rights situations in Hong Kong, the Uyghurs, and Myanmar. With these serious human rights issues, the Japanese government’s approach of prioritizing dialogue and cooperation as pillars of human rights diplomacy appear to be insufficient in pursuing and upholding universal values such as human rights or the rule of law. MP Yamao hopes that Japan eventually enacts a Magnitsky Act to fill the gaps of the current dialogue and cooperation framework. The next session of this symposium aims to be a dialogue on the opportunities and issues related to the enactment of Magnitsky Law in Japan, with MP Yamao as one of the panelists.