Natasha Rygnestad-Stahl
Economic sanctions have long been used as a tool of foreign policy, but since the late 20th century they have also been used as a tool of the human rights movement. Since their deployment as a means of pressuring Apartheid South Africa, the use of sanctions has proliferated and they are increasingly being used to punish human rights abusers on an individual level around the world.
In 2009, a 37-year-old Russian lawyer named Sergei Magnitsky died in a Russian jail after being illegally detained for uncovering a $230 million tax fraud perpetrated by officials of the Russian government. Ten years after his death, his name is synonymous with an international effort which bears his name.
Sergei Magnitsky. Source: Wikipedia
The United States (U.S.) passed the first “Magnitsky law” sanctioning Russian individuals involved in torture, extrajudicial killings and other gross violations of human rights in 2012. Later, it followed up with a more expansive act to sanction human rights abusers and corrupt officials anywhere in the world – the 2016 Global Magnitsky Act and then Executive Order 13818.[1]In the years following, Lithuania[2], Estonia[3], Canada[4], the United Kingdom[5] and Latvia[6] followed suit.
All existing Magnitsky laws share similar characteristics. They generally sanction two types of behaviour: (1) gross violations of human rights, and (2) corruption. Individuals who are sanctioned generally face two consequences. First, they are most often deemed inadmissible to the country imposing the sanctions – the so-called “travel-ban” portion of the sanctions. For example, under the U.S. Magnitsky laws, individuals sanctioned can be blocked from visiting the U.S. via ineligibility to receive a visa to be admitted to the U.S. or the revocation of an existing visa or other documentation under the Immigration and Nationality Act[7]. Second, property owned by the sanctioned individual that is located in the sanctioning country, or is under the control of a national of the sanctioning country can be blocked. For example, under the U.S. Magnitsky laws, individuals and entities can have their property blocked under the International Emergency Economic Powers Act if the property is within the U.S., comes within the U.S., or is within the possession of control of a U.S. person.[8]
The international appetite for targeted sanctions regimes is growing, especially in Europe where the European Parliament first began calling for a Magnitsky regime in 2012.[9] Most recently, on 9 December 2019, the EU High Representative for Foreign Affairs and Security Policy, Josep Borrell, announced that the EU would begin the “preparatory work for a global sanctions regime to address serious human rights violations, which will be the EU equivalent of the so-called Magnitsky Act of the United States”. Borrell further stated that this represented a “tangible step reaffirming the European Union’s global lead on human rights”. Eventual EU Magnitsky legislation will require unanimous approval by all EU Member States.
Josep Borrell, EU Foreign Minister (Source: EURACTIV)
My research project explored the potential of a Magnitsky act in Europe, specifically noting how a regime might be designed, learning from existing acts in other countries. In the course of my research concerning effective sanctions regimes, I conducted a brief jurisprudential review[10] of case law from the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) to draw out some of the key legal issues that European Magnitsky act drafters should keep in mind. The list is by no means exhaustive but provides a snapshot of some large thematic issues, some of which are common to other Magnitsky acts and some of which are specific to Europe due to the robust due-process rights guaranteed in European law.
Briefly, my six recommendations involve:
- A Robust De-Listing Procedure
Individuals must have an effective means through which to challenge their sanctions designation
- Skepticism Regarding Status-Based Sanctions
A Magnitsky regime should not include provisions for status-based sanctions, as it will likely be struck down by European courts on due process grounds. Status-based sanctions are those that impose penalty based on an individual’s status within an entity – for example their status as part of the entity’s leadership team – without relying on specific evidence tying that individual to the conduct in question.
- The Need for Flexible and Adaptable Sanctions
Sanctions must be able to be adapted to meet the demands of an individual’s unique circumstances, especially in freedom of movement cases
- The Need for Reasons and Comprehensive Evidence
The most common reasons that sanctions listings have been annulled has been insufficient evidence.[11] The EU should engage with civil society in a more meaningful way in order to gather more evidence and information to substantiate a sanctions listing
- Broad Listing Criteria
Listings in the past have frequently been annulled by the courts due to the listing criteria being so specific that individual conduct if often difficult to fit into the given definition. With broad listing criteria, the EU is able to catch more conduct and individuals and be more successful in litigation
- The Creation of a New Sanctions Ombudsperson
This office would be tasked with reviewing requests from individuals to have their names removed from the sanctions list as well as improving the fairness of the listing procedure.
As the EU considers the creation of an EU-wide human rights sanctions regime, bearing the name of Sergei Magnitsky, there is much to be learned from history, from the operation of the current Magnitsky acts in the U.S. and Canada, and past EU sanctions jurisprudence.
[1] Sergei Magnitsky Rule of Law Accountability Act of 2012, Public Law No 112-208 (“Magnitsky Act”); Global Magnitsky Human Rights Accountability Act, Public Law No 114-328 (“Global Magnitsky Act”)
[2] Law on the Legal Status of Aliens, No IX-2206.
[3] Obligation to Leave and Prohibition on Entry Act, RT I 1998, 98, 1575.
[4] Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law), SC 2017, c 21.
[5] Proceeds of Crime Act 2002, 2002, c 29; Sanctions and Anti-Money Laundering Act 2018, c 13.
[6] Parliament Resolution On the Proposal to Introduce Sanctions Against the Officials Connected to the Sergei Magnitsky Case, 2018.
[7] Immigration and Nationality Act, Public Law No 89-236.
[8] International Emergency Economic Powers Act, Public Law No 95-223.
[9] European Parliament, “European Parliament Recommendation of 23 October 2012 to the Council on Establishing Common Visa Restrictions for Russian Officials Involved in the Sergei Magnitsky Case”, 2012/2142(INI); European Parliament, “European Parliament Resolution of 14 March 2019 on a European Human Rights Violations Sanctions Regime” 2019/2580(RSP).
[10] Cases examined includes: Ali Sedghi and Ahmad Azizi v Council of the European Union, T-66/12 [2014] ECLI:EU:T:2014:347; European Commission and Others v Yassin Abdullah Kadi, C-584/10P [2013] ECLI:EU:C:2013:518; Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, C-402/05P, [2008] 2008 I-06351; Yury Aleksandrovich Chyzh and Others v Council of the European Union, T-276/12 [2015], ECLI:EU:T:2015:748; Case of Nada v Switzerland, 10593/08, [2012], ECHR 161, IHRL 2059.
[11] European Parliament, Targeted Sanctions Against Individuals on Grounds of Grave Human Rights Violations – Impact, Trends and Prospects at EU Level, PE 603.869, (April 2018) at 15.
Natasha Rygnestad-Stahl is a 2L student at the Peter A. Allard School of Law and is working with the IJHR Clinic with the Magnitsky Team on developing Magnitsky Act case files to be submitted to the U.S. and Canadian governments.
