Tomorrow (10 December 2020) marks Human Rights Day. Ahead of commemorating the 77th anniversary of the Universal Declaration of Human Rights, the European Union has signed off on a global human rights sanction regime – or the European Magnitsky Act.
The new sanction regime will allow the EU to freeze assets and impose travel bans on individuals implicated in human rights abuses worldwide.
The Council of Europe adopted a decision and a regulation that established these powers on 7 December 2020 and they are expected to officially enter into force this Human Rights Day, with a press release stating:
“For the first time, the EU is equipping itself with a framework that will allow it to target individuals, entities and bodies – including state and non-state actors – responsible for, involved in or associated with serious human rights violations and abuses worldwide, no matter where they occurred.”
The EU had previously been unable to enforce travel bans, historically being a power reserved for the national governments of member states. Equally, the Union’s previous sanctioning powers had been restricted to geographical locations. The new sanctions regime allows them to target sanctions towards individuals directly involved in human rights abuses, ranging from genocide and torture to arbitrary arrests or detentions.
It will be the role of the Council, acting upon proposals of member states or the High Representative of the EU for Foreign Affairs and Security Policy, to establish, review and amend the sanctions list.
The Council of Europe state the new powers demonstrate that:
“the promotion and protection of human rights remain a cornerstone and priority of EU external action and reflects the EU’s determination to address serious human rights violations and abuses.”
Today we adopted the EU Global Human Rights Sanctions Regime.
This is a landmark agreement and the first of its kind.
It will allow the European Union to target serious human rights abuses and violations worldwide. https://t.co/FIXGLe7XQ1 #EU4HumanRights pic.twitter.com/RJiQEoVGKz
— Josep Borrell Fontelles (@JosepBorrellF) December 7, 2020
Background of Magnitsky Acts
Despite the EU framework not formally carrying Magnitsky’s name, the powers reflect similar legislation worldwide which began with the original US Magnitsky Act signed by Barack Obama in 2012.
The original act was passed in response to the death of Russian tax lawyer Sergei Magnitsky and was designed to target Russian officials deemed responsible for his death.
Magnitsky died in a Moscow prison in 2009 after he alleged the involvement of Russian officials in large-scale tax fraud. Having been arrested in 2008, he spent 11 months in police custody where he sustained injuries consistent with torture and was denied medical care.
The European Court of Human Rights later found that there had been “multiple violations” of the European Convention of Human Rights during his detention.
Sergei Magnitsky had been hired by American financier Bill Browder to investigate the Russian authorities. Following Magnitsky’s death, Browder was instrumental in lobbying the U.S. Congress to enact the original act and later went on to lobby governments worldwide.
Similar legislation has now been enacted in a number of countries around the world, most recently in the UK which passed its Global Sanctions Regime in July 2020.
BREAKING: UK Foreign Secretary @DominicRaab to announce the first implementation of U.K. #MagnitskyAct. Sanctions will be applied to Sergei Magnitsky’s killers. #IOHRTV Presenter @trishiohrtv interviewed @BillBrowder, the force behind the act >>> https://t.co/W90XYc5ikF pic.twitter.com/hRa1iELH06
— International Observatory of Human Rights (@observatoryihr) July 6, 2020
The EU Magnitsky legislation
The conversation around similar EU legislation was initiated by the Dutch government, who passed a resolution on the issue in their own parliament last November.
The Dutch government however argued against including Magnitsky’s name, stating that no specific state should feel targeted. In response to the US act, Vladimir Putin banned the adoption of Russian children by Americans, it is likely the EU wanted to avoid a similar backlash.
Informally, the act is still being referred to as the “European Magnitsky Act”, including by the European Commission president Ursula von der Leyen and by Dutch prime minister Mark Rutte.
The new sanctions regime comes after repeated calls from the European Parliament to adopt similar legislation and the eight members of the Nordic Council – Finland, Iceland, Sweden, Norway, the Faroe Islands, Greenland, and Åland – had committed to adopting their own acts should the EU fail to agree.
Latvia, Lithuania and Estonia, which border Russia, already have such legislation.
Some have criticised the legislation for not specifying “corruption” as an included criterion for action. Laure Brillaud, from the Brussels-based NGO Transparency International, said:
“The omission of corruption in the EU’s new sanctions regime risks sending the message that Europe is a safe haven for dirty money,”
Bill Browder, who has been so influential in lobbying for Magnitsky style legislation world wide, has also pointed out potential flaws in the legislation. Browder raised concerns over the fact that member states must unanimously agree on designations, effectively giving states with a lower regard for human rights the power of veto, saying:
“This unanimity rule is a real problem. Another problem with the EU Magnitsky Act is that it doesn’t include kleptocracy, it only includes human rights abuse. And what we found is that kleptocracy and human rights abuse go hand in hand, they are intertwined. Of course, we are celebrating today because this is a huge milestone but tomorrow the work begins to put pressure on sanctioning bad actors in countries like Russia and China and to make sure that the law that the EU has, is upgraded to include corruption,”
EU agrees its own Magnitsky regime to sanction human rights abuses. Now we need to make sure that countries like Hungary, Cyprus and Malta don’t hijack the law with their ability to veto any future EU Magnitsky lists. This is potentially a big problem. https://t.co/GBOnmmhRHN
— Bill Browder (@Billbrowder) December 8, 2020
It remains to be seen which individuals will be included in the EU’s first designations, although in line with similar acts, it is likely that individuals thought to be involved in the killing of Sergei Magnitsky in 2009 and the Saudi journalist Jamal Khashoggi in 2018, will be included.
Many will call for those involved in the persecution of the Uyghur minority in China to be included in the first designations. However, when asked on Monday 7 December 2020, European Union Minister for Foreign Affairs Josep Borrell said no member state had suggested listing Chinese names at this stage.
Belarus opposition leader Svetlana Tikhanovskaya tweeted:
“It will serve as an additional instrument against [Belarus president Alexander Lukashenko’s] regime, allowing persecution of individuals responsible for the violence against protesters,”
It will also be a point of interest how the EU decides to proceed with Turkish individuals. Ahead of an EU leaders summit on Human Rights Day, representatives from the member states discussed whether to impose punitive measures in response to Turkey’s recent actions in the East Mediterranean and Northern Cyprus.
Josep Borrell, the EU’s High Representative told reporters Monday that:
“We have not seen a fundamental change of direction on Turkish behaviour. On the contrary, the situation in several aspects has worsened. The seismic survey in the region is still going on. So, the evaluation of the foreign affairs ministers is not a positive one,”