Australia joins the ‘global Magnitsky movement’

ABSTRACT

So-called Magnitsky laws allow states to use the tools available to the domestic system to sanction human rights abusers and corrupt actors that commit their violations abroad. Such tools include visa bans, asset freezes and restrictions on the use of banking systems. Other major Western powers have already enacted Magnitsky laws: in December 2021 Australia followed suit, and thus joined what has been dubbed the ‘global Magnitsky movement’. This commentary considers the relatively short history of Magnitsky laws, including the death of their namesake, Russian tax advisor Sergei Magnitsky. The seeming impunity of those behind his murder triggered a campaign for states to use domestic law to somehow punish perpetrators of egregious human rights violations and serious corruption, where they have not otherwise been held to account. By joining the global Magnitsky movement, Australia falls in line with its allies; depending on how the government elects to use its new sanctions power, this will inevitably come at some diplomatic cost.

KEYWORDS:

• Human rights
• Magnitsky
• corruption
• sanctions

Acknowledgements

The author would like to thank Dr Philipp Kastner and Dr Fiona McGaughey, her thesis supervisor and examiner respectively.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 See, e.g. Andrew Tillett, ‘New Magnitsky Sanctions Regime to Target Chinese, Russian Officials’ Financial Review (2 December 2021) <www.afr.com/politics/federal/new-magnitsky-sanctions-regime-to-target-chinese-russian-officials-20211202-p59e5q> accessed 11 March 2022; Daniel Hurst and Ben Doherty, ‘Australia to Face Pressure to Use New Magnitsky-Style Laws Against Myanmar and Chinese Officials’ The Guardian (2 December 2021) <www.theguardian.com/australia-news/2021/dec/02/australia-to-face-pressure-to-use-new-magnitsky-style-laws-against-myanmar-and-chinese-officials> accessed 11 March 2022.

2 Geoffrey Robertson and Chris Rummery, ‘Why Australia Needs a Magnitsky Law’ (2018) 89(4) Australian Quarterly 19, 21.

3 See, e.g. Australian Department of Foreign Affairs and Trade, Ukraine Sanctions Regime <www.dfat.gov.au/international-relations/security/sanctions/sanctions-regimes/ukraine-sanctions-regime> accessed 5 May 2022; UK Government, UK Sanctions Relating to Russia <www.gov.uk/government/collections/uk-sanctions-on-russia#full-publication-update-history> accessed 5 May 2022; US Department of State, How the US is Holding Russia and Belarus Accountable <www.state.gov/holding-russia-and-belarus-accountable/> accessed 5 May 2022.

4 Michael Weiss, ‘Man on a Mission: Bill Browder vs the Kremlin’ (2012) 174(5) World Affairs 53, 59.

5 ibid 60.

6 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) Art 7(1)(a).

7 Elena Katselli Proukaki, The Problem of Enforcement in International Law: Countermeasures, the Non-Injured State and the Idea of International Community (Taylor & Francis Group 2010), 1.

8 Bill Browder, Red Notice: A True Story of High Finance, Murder, and One Man’s Fight for Justice (Bill Browder 2015).

9 Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, Pub L No 112–208, 126 Stat 1496 (2012).

10 ibid s 402(a)(4).

11 Leigh A Payne and Gabriel Pereira, ‘Corporate Complicity in International Human Rights Violations’ (2016) 12(1) Annual Review of Law and Social Science 63, 63.

12 Global Magnitsky Human Rights Accountability Act 22 USC §§ 2656 (2016) s 3(a).

13 Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law), SC 2017, c 21, art 8(1).

14 Global Human Rights Sanctions Regulations 2020 (UK) SI 2020/680, art 4(2).

15 Office of Financial Sanctions Implementation, Consolidated List of Financial Sanctions Targets in the UK <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1003139/Global_Human_Rights.pdf> accessed 5 May 2022.

16 Council Regulation (EU) 2020/1998 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses [2020] OJ LI 410/1 art 3(3)(c).

17 ibid art 14.

18 Autonomous Sanctions Amendment (Magnitsky-style and Other Thematic Sanctions) Act 2021 (Cth) Sch 1 art 4(3).

19 Australian Government Response to the Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights Sub-Committee Report: Criminality, Corruption and Impunity: Should Australia Join the Global Magnitsky Movement? (5 August 2021) 6–7.

20 Geoffrey Robertson, Bad People and How to be Rid of Them: A Plan B for Human Rights (Vintage Books 2021) 136–37; Héctor M Cruz-Feliciano, ‘Whither Nicaragua Three Years On?’ (2021) 48(6) Latin American Perspectives 9, 13–14.

21 Robertson (n 20) 29.

22 Ben Packham, ‘Beijing’s Bizarre Uighur threat’ The Australian (7 April 2021) <www.theaustralian.com.au/nation/politics/beijings-bizarre-uighur-threat/news-story/45f3dccf041e6bf7802e918c7cc50d19> accessed 14 January 2022.

23 ‘Anti-Foreign Sanctions Law Necessary to Fight Hegemonism, Power Politics: Official’ Xinhua (11 June 2021) <www.xinhuanet.com/english/2021-06/11/c_1310001370.htm> accessed 14 January 2021.

Additional information

Notes on contributors

Catherine Parsons

Catherine Parsons works for Walk Free, the international human rights group working to accelerate the end of modern slavery, and is a former Australian diplomat. She is a recent graduate of the Master of International Law program at the University of Western Australia, where her thesis examined the potential role of Magnitsky laws in fighting modern slavery.