An important step forward for accountability
On 6 July the UK became the latest country to join the growing ‘Magnitsky momentum’ by passing the Global Human Rights Sanctions Regulations, allowing the government to sanction alleged perpetrators of the gravest forms of human rights violations.
Introducing the regulations in parliament, the UK foreign secretary, Dominic Raab, said:
“Today this Government and this House sends a very clear message on behalf of the British people: that those with blood on their hands, the thugs of despots, or the henchmen of dictators, won’t be free to waltz into this country to buy up property on the Kings Road, or do their Christmas shopping in Knightsbridge, or frankly to siphon dirty money through British banks or financial institutions.
Mr Speaker, the Regulations are the latest next step forward in the long struggle against impunity for the very worst human rights violations. We’ve deliberately focused on the worst crimes, so we have the clearest basis, to make sure we can operate the new system as effectively as we possibly can.
That said, we’ll continue to explore expanding this regime to include other human rights. And I can tell the House that we are already considering how a corruption regime could be added to the armoury of legal weapons that we have.”
The regulation builds on the Sanctions and Anti-Money Laundering Act, passed in 2018 to establish the UK’s legal framework to implement its international sanction obligations (such as from the UN) following its exit from the EU. However, the Act left the door open to the development of an independent sanction regime – an opportunity which the government has effectively seized by passing this regulation.
Indeed, the new regulation allows the UK government to designate and sanction persons (including individuals and organisations) who, following a legal determination by the secretary of state, are believed to have violated one of the three following jus cogens human rights norms, namely:
- The right not to be subjected to torture or cruel, inhumane or degrading treatment or punishment;
- The right to be free from slavery or forced labour; and
- The right to life.
Interestingly, while the scope of human rights violations covered is more restricted than similar legislation in the US and Canada (though the government has expressed plans to expand the regime, notably to cover instances of corruption), the scope of activities covered is significantly larger and allows individuals to be sanctioned for facilitating, inciting, promoting, supporting, or benefiting from the alleged crimes. In effect, this is the closest any sanction regime has come to providing accountability for failure to prevent human rights violations.
This sanction approach to accountability provides significant clout to the enforcement of universal human rights norms, as listed persons would be banned from entering the UK and immediately have their UK assets frozen.
For this reason, along with the adoption of the regulation, the government published an initial list of 49 individuals accused of human rights abuses, including 25 Russians who are accused of being involved in the death of Sergei Magnitsky, a Russian tax accountant who died in a Moscow prison after having investigated a case of tax fraud involving Russian officials and whose suspected murder sparked the Magnitsky sanctions movement. It was to punish Russian officials believed to be involved in his death that the US Congress first adopted a sanction legislation.
Since, this initial US experiment in human rights sanctioning has developed into the Global Magnitsky Act and been used to sanction individuals accused of human rights violations around the world, including Saudi officials suspected of being involved in the killing of journalist Jamal Khashoggi, the Gupta brothers in South Africa, who stood accused of widespread corruption, Yahya Jammeh, the former President of Gambia, who stood accused of a long history of human rights violations and corruption, and Min Aung Hlaing, the military chief of the Myanmar army, accused of leading the genocide against the Rohingya.
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Interestingly, there is significant overlap between US and UK sanctions, as the latter have also listed six Saudi officials believed to have been involved in the murder of Khashoggi, including Saud al-Qahtani, the former chief adviser of Crown Prince Mohammad bin Salman, as well as Myanmar’s military chief, Min Aung Hlaing and his deputy. This gives credence to US secretary of state, Mike Pompeo’s statement that “the UK’s new powers will complement the efforts of the United States and Canada, further enhancing our ability to act together”.
The implications of such sanction regimes for human rights accountability are far reaching. They usher in a new approach to accountability that goes beyond the traditional state-centric legal framework, by allowing for punitive measures to be addressed to individuals and non-state actors. As explained by Mr Raab, this allows the government to “target perpetrators without punishing the wider people of a country that may be affected”. They further bypass the jurisdictional limitations of courts by enabling sanctions for violations regardless of where and when they occurred or the current location of the alleged perpetrator.
Finally – and this is the most controversial element – they lower the legal threshold for the determination of a violation, in practice opening the door to the politicisation of punitive measures. In this regard, however, the UK’s sanction regime should be commended for its procedural safeguards, including the obligation for the government to review all designations at least once every three years, as well as the option for designated persons to request that a minister review the decision. The decision can also, of course, be challenged in court.
However, for this new approach to human rights accountability to truly deliver on its promise, the international community should be at least coordinated – and at best collaborative – in their sanctioning. There are reasons to be hopeful in this regard as states increasingly pass similar legislation enabling them to sanction individuals collectively, thus leveraging the force of their complementary might. So far, the US, the UK and Canada are the only states to have adopted such human rights sanction regimes, though the EU is poised to follow suit soon.
It is not hard to see the far-reaching implications for the deterrence and holding to account of human rights abusers if all these countries collectively sanction alleged perpetrators, effectively rendering them international financial pariahs. The process, however, must be transparent and inclusive to ensure its legitimacy. It must be open to the whole international community as the entire world is a stakeholder in the upholding of universal human rights. Furthermore, as the oft-quoted judicial maxim goes, not only must justice be done; it must be seen to be done. This can be achieved through increased multilateral dialogue, civil society participation and institutional oversight in the designation of sanctioned individuals.
Ultimately, for such a sanction regime to stand strong, it must withstand the claims it is bound to face of the politicisation of human rights and bear the mantle of the objective wheel of international justice.
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