From Magnitsky to the Mothers of Mariupol: Congress Must Stand with Victims and Strengthen the Global Magnitsky Act

By Mike Abramowitz

In recent weeks, the world has once again been confronted with the horrifying reality of war and witnessed shocking crimes in Ukraine. Searing images – like the young pregnant mother carried from the rubble of a maternity hospital in Mariupol that came under Russian fire – have underscored the depravity of those fueling this conflict.

As calls for accountability grow, Congress must protect and strengthen the Global Magnitsky Act to ensure it remains a flexible and essential sanctions tool to target war criminals, human rights abusers, and corrupt actors – in Ukraine, Russia, and everywhere such abusers bring suffering and death. Legislators are currently considering taking such action, which is urgently needed.

Spurred by cries for justice after another Kremlin killing 13 years ago – that of whistleblower Sergei Magnitsky – bipartisan majorities of Congress passed several laws including the 2016 Global Magnitsky Act, which for the first time enabled the U.S. government to sanction individuals for human rights violations and corruption anywhere in the world. With this watershed law, the U.S. government could impose real consequences on abusive actors everywhere – keeping them out of the United States, freezing their assets, and barring others from doing business with them.

Magnitsky sanctions quickly became Vladimir Putin’s most hated laws. He and other autocrats realized the promises that propped up their power – that their cronies could get rich through corrupt and abusive means and hide their money safely in Western countries – were in danger.

But the visionary Act came with practical constraints. Perhaps greatest were the limits placed on the types of human rights abuses that were sanctionable, which the Act described as “gross violations of internationally recognized human rights.” To the U.S. government, that legal language meant it could only sanction 1) government actors, 2) perpetrating multiple violations, 3) from a narrow list of violations, 4) on their national territory, and 5) in their official capacity. That list of violations didn’t clearly include serious abuses such as rape, sexual violence, and human trafficking.

The Act had other limitations. It only allowed the U.S. government to sanction abusers who targeted whistleblowers and human rights defenders, excluding most victims. The Act also made it far more difficult to sanction those who aid and abet human rights abuses or lead brutal organizations than those who pull the trigger or give the order. With these roadblocks, even the people who fired on the Mariupol maternity hospital probably could not be sanctioned using Global Magnitsky.

Faced with this reality, in 2017 the Trump Administration issued Executive Order 13818 to implement the Global Magnitsky Act, making the sanctions program a viable tool to promote accountability. The Executive Order established a workable standard by allowing sanctions for “serious human rights abuse,” which enabled the sanctioning of nonstate actors, single acts of abuse, and other acts of physical violence, regardless of where they occurred and whether the abuser was on duty. It also did away with the arbitrary restrictions on which victims qualify and covered perpetrators who play critical but indirect roles, such as leaders of abusive organizations.

Today, 138 persons have been sanctioned for serious human rights abuse under the Global Magnitsky sanctions program – and almost three out of four these sanctions were probably not possible under the original Act. Nonstate actors such as militias in Iraq, Libya, and the Democratic Republic of the Congo have been sanctioned for attacks on civilians. Single abuses such as the killing of Jamal Khashoggi and the detention of pastor Andrew Brunson have been sanctioned too. The U.S. government was able to sanction Chinese officials and Burmese military officers for widespread atrocities against religious minorities without having to prove that their victims were human rights defenders.

This flexibility creates a rare policy tool adaptable enough to respond to the wide range of violent human rights abusers. This is why Congress must codify these workable standards as it reauthorizes the expiring Global Magnitsky Act. Over the past year, momentum has been building in that direction, with a key Senate committee unanimously approving such a bill last year and the House passing a companion bill.

In recent days, some have expressed concern that the “serious human rights abuse” standard shouldn’t be codified, claiming 1) it has never been used in federal law before, and 2) it is so broad that individuals could be sanctioned for religious beliefs or nonviolent speech aligned with those beliefs. However, this standard is not new and appears in numerous sanctions-related statutes addressing abuses in IranSyriaNorth KoreaRussiaNicaragua, and China. And, it is not without precedent or limit. In the nearly five years since the standard was adopted for Global Magnitsky sanctions, it has only been used in cases involving arbitrary detention or physical violence against another person. Speech and belief remain protected by domestic and international law.

Since the first Russian missiles struck Kyiv, civil society groups have been working around the clock to investigate and document abuses in an effort to sanction the perpetrators and hold them accountable. Yet under the original Global Magnitsky Act, what happened to the mothers of Mariupol and other civilian victims would likely not be sanctionable. They weren’t the “right kind of victim.” Their deaths weren’t “gross violations” under U.S. law. Ukrainian officials have alleged reports of rapes and sexual violence by Russian soldiers against Ukrainians, which, if confirmed, wouldn’t be covered by the statute. These cold, arbitrary standards could stand in the way of accountability for countless innocent victims to come in this horrifying conflict, and millions of victims like them around the world.

In the face of Russia’s brutal war on Ukraine, Congress should give its full support to codifying the Executive Order’s improvements to the Global Magnitsky Act and show that it stands with victims, not in their way.

Author:

  • Michael Breen

Published on October 12, 2022

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