Magnitsky Effect: a New Method of Tackling Corruption & Human Rights Violations
Introduction Corruption is a problematic situation that is endured by many states and countries worldwide. Joseph Nye defines corruption as “a behaviour, which deviates from the formal duties of a public role because of private-regarding (personal, close family, private clique) pecuniary or status gains”.[1] The United Nations General Assembly's Agenda 2030 regarding 2015's sustainable development had called for states to reduce bribery and corruption.[2] According to documents produced by United Nations officials, corruption has formulated a 'negative impact' on human rights.[3] Furthermore, it can also be stated that countries that have higher corruption rates have a poor human rights background.[4] This article aims to address the issues of corruption that persists in Britain and its correlation to human rights. This article will also explain how the government intends to tackle corruption after exiting the European Union. Magnitsky Act In 2019, UK Foreign Secretary Dominic Raab announced that the government intends to introduce post-Brexit "Magnitsky" sanctions.[5] The sanctions are aimed at individuals who are held to be responsible for human right abuses.[6] The act can be thought of as a tribute to the Russian lawyer Sergei Magnitsky, who had uncovered a large-scale corruption scandal, including tax-fraud, whilst working for Hermitage Capital.[7] Hermitage capital is a London based firm, which was run by the US-born financier Bill Browder. In this case, Sergei Magnitsky had discovered that millions of dollars of Hermitage tax payments were transferred to various Russian officials.[8] This resulted in his arrest, followed by his death. Later Bill Browder initiated a campaign to impose sanctions on the officials who were involved in the corruption scandal.[9] This included banning the officials from travelling to the United States and using the USA's finance system. Moreover, this had lead to the government introducing the 'Magnitsky Act'.[10] The Magnitsky Act was formerly known as the "Sergei Magnitsky Rule of Law Accountability Act 2012" and the "Russia and Moldova Jackson-Vanik Repeal". The Magnitsky Act was first passed by the US congress in 2012 before it was renamed as the 'Global Magnitsky Act', resulting in other countries applying the act (sometimes amended).[11] The Act was again renamed, this time as the 'Global Magnitsky Human Rights Accountability Act'.[12] Section 3 of the bill empowers the President of the US to impose property and entry sanctions against any foreign individual who is, for instance, 'a senior or government official who is responsible for directing or ordering acts of corruption'.[13] The UK, however, faced immense pressure from foreign government to apply the Magnitsky Act.[14] The first wave of sanctions that were imposed by the UK government had targeted the 25 Russian officials who were involved in the death and the ill treatment of the lawyer Sergei Magnitsky, 2 Myanmar Military generals involved in ruthless violence against the people of Rohingya, 20 Saudi inhabitants who were involved in the death of the journalist Jamal Khashoggi and 2 associations from North Korea that were involved in murder, torture and forced labour.[15] The new scheme is said to enable the UK to target individuals not only within the UK but also around the world.[16] Implementations of Sanctions and Brexit Additionally, the British government introduced the Sanctions and Anti-Money Laundering Act 2018.[17] Although Britain had not yet officially exited the European Union, the following act enables the UK government to impose various restrictions on government officials who violate the current law through corruption and human rights violations.[18] It can also include money laundering, as identified by the late Sergei Magnitsky. Section 1 of the act enables ministers to impose sanctions on entities and people including companies if the principles of human rights are violated.[19] Similarly, the government preserved that clause one of the bill is thoroughly valid.[20] Helen Goodman, a prominent MP who led on the Bill for the opposition, argued the bill requires amendments as it lacks clarity.[21] As a consequence, during the third reading, this led to the government making further amendments to the sanction specifically relating it to the "Magnitsky Act". The amendment inaugurates the aspect of 'Gross human rights violations' which is already implemented in the Proceeds of Crime Act 2002.[22] This includes the torture of an individual by a public party or a person with an official status.[23] In addition, the Sanctions and Anti-Money Laundering Act utilises aspects of the Immigration Act 1971. This elucidates the notion that the government has the necessary authority to impose travel bans, freezing of assets and denial of visas to 'named individuals' who have committed solemn crimes in relation to money laundering and human rights.[24] Likewise, the government has implemented the Criminal Finances Act 2017 which expanded the definition of the 'unlawful conduct' itself by including the gross human rights violation and abuse.[25] This means that the government has the ability to prosecute individuals if their conduct occurs in a territory or country, which lies outside of the UK, and its jurisdiction after Brexit. The UK government has introduced the Global Human Rights Sanctions Regulations 2020 as a form of secondary legislation.[26] The primary aim of this is to instil measures for states to provide accountability for and deter on particular activities that may cause harm.[27] As a whole, in order for an individual or a state to be prosecuted under the designated considerations, they must have been involved in an activity that seriously violates human rights. These rights can be referred to as the 'right of life': here the person should not being subjected to inhuman conducts such as torture or demeaning punishment and treatment.[28] On the contrary, to some, the Magnitsky Act has been criticised for being "politically selective".[29] This is primarily due to the fact that aspects of UK legislatures such as the 'Sanctions and Anti-Money Laundering Act 2018' are not officially recognised in the Magnitsky Act because they only feature amendments that include parts of the original Magnitsky Act. Hence, it can be argued that after Brexit, the UK government may face difficulties in prosecuting states and individuals using a new Magnitsky style act and perhaps even the Magnitsky Act itself. Albeit, even if the sanctions are deemed to be successful, they are still subjected to judicial review and perhaps even open to retaliatory criticism from foreign governments.[30] Conclusion The Magnitsky Act can be viewed as the solution to both the problems of corruption and human rights breaches. Nevertheless, the new act can enable the UK government to broaden their legislative scope, enabling them to impose sanctions on individuals and states in various levels. These can include imposing travel bans, freezing assets and denial of visas to individuals who have committed solemn crimes violating the Human Rights Acts. However, there are some critical opinions with regards to the Magnitsky Act, with people arguing that it is 'politically selective'. Bibliography Statutes
Criminal Finances Act 2017.
Global Magnitsky Act 2016.
Global Magnitsky Human Rights Accountability Act 2016, s 3.
Proceeds of Crime Act 2002 .
Sanctions and Anti-Money Laundering Act 2018.
The Magnitsky Act 2012
References
JS Nye, ‘Corruption and Political Development: A Cost-Benefit Analysis’ (1967) 61 The American Political Science Review 417.
William Rosa (ed), ‘Transforming Our World: The 2030 Agenda for Sustainable Development’, A New Era in Global Health (Springer Publishing Company 2017) <http://connect.springerpub.com/lookup/doi/10.1891/9780826190123.ap02> accessed 23 July 2020.
‘Preventing and Combating Corrupt Practices and the Transfer of Proceeds of Corruption, Facilitating Asset Recovery and Returning Such Assets to Legitimate Owners, in Particular to Countries of Origin, in Accordance with the United Nations Convention against Corruption ’: <http://digitallibrary.un.org/record/859420> accessed 23 July 2020.
Anne Peters, ‘Corruption as a Violation of International Human Rights’ (2018) 29 European Journal of International Law 1251.
‘U.K. Announces “Magnitsky Act-Style” Global Human Rights Sanctions and 49 Designations’ (Akin Gump Strauss Hauer & Feld LLP) <https://www.akingump.com/en/news-insights/uk-announces-magnitsky-act-style-global-human-rights-sanctions-and-49-designations.html> accessed 24 July 2020.
ibid.
‘The Magnitsky Act at Five Years: Assessing Accomplishments and Challenges (December 14, 2017) Document No. 33’ (2017) 52 Human Rights, the Helsinki Accords and the United States: Selected Executive and Congressional Documents I.
Ben Smith and Joanna Dawson, ‘Magnitsky Legislation’ <https://commonslibrary.parliament.uk/research-briefings/cbp-8374/> accessed 30 July 2020.
ibid.
Global Magnitsky Human Rights Accountability Act 2016, s 3.
Andrew England and others, ‘UK Faces Calls to Target China with New Sanctions’ (7 July 2020) <https://www.ft.com/content/0453cdd8-fe47-47c6-8748-439c7f1abaa5> accessed 12 October 2020.
‘UK Announces First Sanctions under New Global Human Rights Regime’ (GOV.UK) <https://www.gov.uk/government/news/uk-announces-first-sanctions-under-new-global-human-rights-regime> accessed 25 July 2020.
ibid.
‘Sanctions and Anti-Money Laundering Bill [Lords] - Hansard’ <https://hansard.parliament.uk/commons/2018-02-20/debates/4203FE32-0E68-46CD-BAAF-6F65D05050A2/SanctionsAndAnti-MoneyLaunderingBill(Lords)> accessed 26 July 2020.
Ed Clowes, ‘UK Joins Game of Russian Roulette with Sanctions Plan’ The Telegraph (12 July 2020) <https://www.telegraph.co.uk/business/2020/07/12/uk-joins-game-russian-roulette-sanctions-plan/> accessed 29 July 2020.
Sanctions and Anti-Money Laundering Act 2018.
‘Sanctions and Anti-Money Laundering Bill [Lords] - Hansard’ <https://hansard.parliament.uk/commons/2018-02-20/debates/4203FE32-0E68-46CD-BAAF-6F65D05050A2/SanctionsAndAnti-MoneyLaunderingBill (Lords)> accessed 26 July 2020.
ibid
Sanctions and Anti-Money Laundering Bill [HL], Amendment 33, Explanatory text.
ibid.
‘UK Global Human Rights Sanctions’ (GOV.UK) <https://www.gov.uk/government/collections/uk-global-human-rights-sanctions> accessed 29 July 2020.
‘Global Human Rights Sanctions: Consideration of Designations’ (GOV.UK) <https://www.gov.uk/government/publications/global-human-rights-saons-factors-in-designating-people-involved-in-human-rights-violations/global-human-rights-sanctions-consideration-of-targets> accessed 30 July 2020.
ibid .
‘A UK Magnitsky Act: Would It Work?’ (RUSI, 3 April 2018) <https://rusi.org/commentary/uk-magnitsky-act-would-it-work> accessed 30 July 2020.
This article was originally published in the Law Codex.