U.S. GLOBAL MAGNITSKY SANCTIONS

The best-known of the United States government’s (USG) targeted sanctions tools to address human rights abuse and corruption is the Global Magnitsky (GloMag) sanctions program. Although inspired by and named for Russian whistleblower Sergei Magnitsky, the program has worldwide applicability. Its flexible criteria and its mandate for consultation with civil society make it an attractive tool for NGOs recommending sanctions. However, the USG often defaults to using country-specific sanctions programs for human rights abuses and corruption instead of GloMag, when such a program exists.

History

Congress passed the original Magnitsky Act in 2012 in response to the death in custody of Russian tax advisor Sergei Magnitsky, who had uncovered a major tax fraud conspiracy. The Magnitsky Act authorized U.S. sanctions against Russians involved in Magnitsky’s brutal detention and those involved in human rights abuses against other activists.

The Global Magnitsky Human Rights Accountability Act was passed in 2016. The executive branch implemented the law in 2017 by adopting Executive Order (E.O.) 13818, which created a sanctions program covering a broad range of human rights abuses and acts of corruption anywhere in the world. In 2022, the Act was permanently reauthorized.

Legal Criteria

These sanctions can be imposed on foreign individuals and entities[1] anywhere in the world that are responsible for or involved in:

Serious human rights abuse

• The term “serious human rights abuse” is not defined in law or regulation.[2] In practice, the USG has applied GloMag to human rights abuses involving at least one incident of physical violence against one or more victims or a serious deprivation of liberty.
• Specifically, GloMag has most frequently been applied to killings, torture, and unlawful or arbitrary detentions.
• GloMag sanctions have also been applied to gender-based violence, enforced disappearance, certain acts of human trafficking, and more.

Corruption

• Corruption is not defined under E.O. 13818, but U.S. practice demonstrates the corruption must involve an improper exchange or provision of a benefit involving government actors or entities.
• The E.O. provides illustrative examples of corruption such as misappropriation of state assets and bribery.[3] The program has also covered government procurement, money laundering, and state capture.
• Transferring the proceeds of corrupt acts is also sanctionable, even years after the original acts.

Other bases for sanctions include being leaders or officials of entities that have engaged in sanctionable acts; attempting such acts; or assisting perpetrators.[4] Generally, the USG imposes these sanctions only in response to acts occurring in the last five years.[5]

Process and Implementation

Penalties: These sanctions impose an entry ban and asset freeze and are publicly announced. Sanctioned persons generally cannot obtain or keep a U.S. visa or access U.S.-based funds or property. Persons under U.S. jurisdiction cannot transact with them.

Implementing agencies: The Treasury Department has the authority to impose these sanctions, and doing so is purely discretionary. Treasury must consult with the State and Justice Departments.

Congressional oversight and involvement: Certain requests from members of Congress can require the USG to consider and report on a particular sanctions recommendation.

• When the chair and ranking member of certain committees ask, the USG must determine if a specific person has engaged in a sanctionable activity and report whether the President intends to impose sanctions, within 120 days.[6]
• Separately, the chair and ranking member of certain committees can provide information that the USG must consider in deciding whether to impose sanctions.[7]

The USG must report annually to Congress on newly imposed and terminated sanctions under the program, as well as efforts to encourage other governments to impose similar sanctions.^[8]

NGO involvement: Unusually, the USG is required by law to consider “credible information obtained by…nongovernmental organizations that monitor violations of human rights” in implementing this program. The Treasury and State Departments accept and consider recommendation files from NGOs and periodically consult with NGOs that have submitted such information.

Since 2017, roughly one-third of the USG’s sanctions under this program have had a basis in recommendations submitted by the civil society network that HRF coordinates.

Patterns of Use

Numbers and Type of Abuse: As of June 20, 2023, 475 individuals and entities from 45 countries have been designated under the GloMag program.^[9]

• 316 designations have been imposed for corruption only.
• 145 designations have been imposed for serious human rights abuses only.
• 14 designations have been imposed for both.

The greater number of corruption actions is largely due to the USG’s practice of targeting multiple companies in a corrupt network.

Regional coverage: The USG has imposed GloMag sanctions on persons in all regions of the world. Europe and Eurasia is the most sanctioned region, and South and Central Asia the least.[10]

Pace and timing: The USG has imposed between 35 to 176 GloMag sanctions annually. Typically, the USG announces many designations around International Anti-Corruption and Human Rights Days (December 9 and 10, respectively).

Perpetrators: The USG has imposed GloMag sanctions on a wide range of actors for their involvement in sanctionable activity or their connections to it, including:

• state and non-state actors.
• human rights abusers whose actions harm only one victim, in addition to those whose actions harm large victim classes.
• senior officials, including former heads of state, as well as judges or prosecutors.^[11]

The USG has often, though not always, failed to impose GloMag sanctions on corrupt or abusive officials from governments that are security partners. Abuses against marginalized populations such as women, children, LGBTIQ+ persons, and Indigenous persons have also been underrepresented.

Examples

Serious Human Rights Abuse

Human Trafficking: In December 2022, the USG for the first time issued GloMag sanctions for human trafficking abuses. In the largest GloMag action to date, the sanctions targeted companies, individuals, and vessels involved in forced labor on a China-registered distant-water fishing fleet. These were the first U.S. sanctions targeting an entity listed on the NASDAQ stock exchange. In June 2023, after one of the perpetrators’ role in an Australian organization was uncovered, the individual resigned, demonstrating the sanctions’ impact beyond the U.S.

Also in December 2022, the USG sanctioned Apollo Quiboloy for sex trafficking, systemic rape, and physical abuse of young girls in the Philippines. Quiboloy has been indicted for sex trafficking-related crimes by U.S. federal prosecutors and is currently on the FBI’s most wanted list. This was the first time that sex trafficking and rape were the central abuses sanctioned in a GloMag action.

Russia: In March 2023, the USG designated six persons, including three individuals under GloMag, for their involvement in the arbitrary detention of Russian opposition leader, journalist, and historian Vladimir Kara-Murza. Kara-Murza has been jailed in Moscow since April 2022 for criticizing Russia’s invasion of Ukraine. This was the first use of GloMag based on a single arbitrary detention. Canada issued similar sanctions in November 2022, the UK in April 2023, and the EU in June 2023.

The Gambia: In December 2017, the USG designated 14 persons for abuses and corruption in The Gambia. Yahya Jammeh, the former president, was designated for killing and torturing political opponents and journalists and corruption. Yankuba Badjie, a former intelligence chief, was also designated for various abuses. In 2020, Jammeh’s wife was sanctioned for supporting his corruption. In May 2022, the U.S. Justice Department completed a civil forfeiture action against Jammeh’s Maryland mansion, seizing the property based on evidence it was purchased with the proceeds of corruption.

Saudi Arabia: After congressional pressure, the USG designated 18 Saudi officials and the Saudi government’s “Tiger Squad” for their involvement in the murder in Istanbul of Saudi dissident and journalist Jamal Khashoggi. Crown Prince Mohammed bin Salman, whom the USG determined was responsible for the assassination, was not sanctioned, though the case highlights the USG’s ability to use GloMag to sanction officials even from close U.S. partners; for a single incident of abuse; and for attacks on journalists (see also Julio Antonio Juarez Ramirez and Marian Kocner).

China: In three separate actions, the USG sanctioned eight high-ranking Chinese Communist Party officials as well as major government entities for involvement in human rights abuses committed against the Uyghurs and other minorities in Xinjiang Uyghur Autonomous Region. The sanctioned entities included a regional security agency and the Xinjiang Production and Construction Corps, a sprawling, government-backed administrative and paramilitary body. The third set of sanctions, in March 2021, was coordinated for the first time with similar actions by the other major Magnitsky jurisdictions, Canada, the EU, and the UK.

Corruption

Cambodia: In December 2019, the USG designated Try Pheap, a Cambodian businessman, for building a large-scale illegal logging consortium reliant on the collusion of Cambodian officials. 11 entities he owned or controlled were also sanctioned. Kun Kim, a senior Cambodian general, was designated for reaping significant financial benefit by using Cambodian soldiers to intimidate, demolish, and clear out land sought by a Chinese state-owned entity.

DRC: In December 2017, the USG designated Dan Gertler, an Israeli billionaire, for engaging in corrupt mining and oil deals with the Congolese state, including then-President Joseph Kabila, resulting in more than $1.36 billion lost revenue for the state. The USG issued two follow-up actions, imposing sanctions on a total of 46 companies and individuals in Gertler’s network, making this one of the largest sets of GloMag sanctions.

Latvia: In December 2019, the USG sanctioned Aivars Lembergs, a Latvian politician, for money laundering, expropriation, bribery, and abuse of office. Four entities that Lembergs owned or controlled were also designated, including the Ventspils Freeport Authority, which operated a major international port. The Latvian government promptly took steps to remove Lembergs from control of the entity, leading the USG to remove the sanctions on it and highlighting the potential effectiveness of sanctions to spur behavior modification.