Democratic Pushback: How to Confront the New Authoritarian Powers without Going to War

In the last week of federal parliament prior to Christmas 2018, Michael Danby MHR introduced a Private Member’s Bill to have Australia adopt a Global Magnitsky Act against authoritarian powers’ acts of corruption and abuse of human rights. The Magnitsky Act was enacted by the Obama Administration, authorising the US government to impose sanctions on human rights offenders. On 20 December 2017, Donald Trump signed Executive Order 13818 which allowed the U.S. Government to effectively freeze the property interests of persons involved in serious human rights abuse or corruption. Addressing The Sydney Institute on Monday 11 February 2019, Michale Danby explained why Australia should support his Private Member’s Bill.

DEMOCRATIC PUSHBACK: HOW TO CONFRONT THE  NEW AUTHORITARIAN POWERS WITHOUT GOING TO WAR

MICHAEL DANBY

For too long, government officials and others connected with authoritarian governments and kleptocracies around the world have gotten away with their abuses of power without sanction.  Rubbing salt into the wounds of those they exploit the ordinary law-abiding citizens of their countries, these abusers use their ill-gotten gains and status to travel abroad and bask in the affluence of the West, purchasing and investing in assets overseas, sending their children to expensive overseas private schools, hiding their ill-gotten money in offshore bank accounts, and generally using such money offshore for the benefit of themselves, their families and their cronies.

In the late 1980s we had legislation passed in the US Senate called the Jackson-Vanik Amendment which, while it was narrowly focussed on the emigration of an oppressed minority of  Soviet Jews, it was emblematic of our Western willingness to use foreign policy to free Andrej Sahkarov or Anatoly (Nathan) Scharansky,  i.e. use our economic muscle to impact human rights in then the prime authoritarian power – the Soviet Union.

Since then, Russia and China were admitted to the World Trade Organisation, with the hope that this would “inevitably” lead to democratisation. That wasn’t much of a success as “inevitable democratisation” or the End of History as we triumphantly hoped.

With China and Russia’s admittance to the World Trade Organisation, we have lost most of our leverage over the Authoritarian States.  Our various Ministries of Foreign Affairs – The State Department or the Foreign Office – insist the only way of responding now is, according to them, via military conflict or state-wide economic sanctions. i.e a Yes Minister prescription for “Purposeful inaction“.

The aims of this Bill – the International Human Rights and Corruption (Magnitsky Sanctions) Bill 2018, which I introduced to the House in the last week before parliament rose, attempts to rebalance, reinvigorate democratic pushback, to give us again some instrument that will enable democracies to respond to authoritarian outrages without going to war.

So, if you are the general who sent the military to shoot down MH17 or you’re the official in Khartoum who sends the Janjaweed militia to murder the Muslim people of Western Sudan or if you’re the Beijing official who has set up concentration camps for a million Uighur people in East Turkestan, you will not like this proposed law.[i]

Just like the legislation already passed in the US, the UK and Canada,

the aims of this Magnitsky legislation in Australia are threefold: first, to prevent prescribed foreign persons engaged in gross violations of human rights and corruption from visiting Australia and spending and investing their money here.  It does this by enabling the Governor-General on the advice of the Minister to target these individuals with immigration, financial and trade sanctions; second, by imposing sanctions on these individuals they are exposed to the world and to the people of their countries as pariahs in the international community; and

third, it is hoped that such sanctions and exposure will deter individuals in these authoritarian regimes from engaging in future gross human rights violations and corruption. As we know, sunlight can be one of the best disinfectants of political or corporate malfeseance.

These laws owe their genesis to two courageous people – Sergei Magnitsky and William (known as Bill) Browder.

Sergei Magnitsky, whose surname appears in the title of this Bill, was a Russian lawyer who acted for Bill Browder’s Hermitage Capital Management fund in Russia in the mid 2000s.  Magnitsky discovered that some $230 million paid by Browder’s company in taxes to the Russian government had been fraudulently misappropriated by Russian government officials working together with organised criminals.

Magnitsky testified against these Russian officials.  In evidence before a US House of Representatives subcommittee, on 29 April 2015, Bill Browder explained:

[Sergei Magnitsky] thought that the President of Russia, Vladimir Putin, was someone who was acting in the national interest, and if this $230 million theft was exposed that the good guys would get the bad guys and that would be the end of the story.

Instead, after Sergei testified against the officials, the same officials he testified against arrested him, put him in pretrial detention, tortured him in the most horrific way for 358 days, and killed him on 16 November 2009.”

I got the news on the 17 November, in the morning, of his murder. And it was by far the most horrific, traumatic, life-changing news that I could ever get, and I made a vow to his memory, to his family, and to myself, that I was going to make sure that we saw justice for Sergei Magnitsky, and that his death would not be a meaningless death.[1]

“How does one get justice in the West for a murder that took place in Russia?” is thequestion Browder posed. It is a question that can be focussed on many serious crimes in authoritarian countries where there is no enforceable rule of law.

“Criminal justice is based on jurisdiction: One cannot prosecute someone in New York for a murder committed in Moscow. The murder of Sergei Magnitsky was done to cover up the theft of $230 million from the Russian Treasury,” Browder surmised.   “I knew that the people who stole that money wouldn’t keep it in Russia.  As easily as they stole the money, it could be retrieved from them.  These people keep their ill-gotten gains in the West, where property rights and rule of law exist.  This led to the idea of freezing their assets and banning their visas here in the West.  It would not be true justice but it would be much better than the total impunity they enjoyed.”[2]

Under Barack Obama’s Presidency, the United States Congress eventually passed legislation targeting individuals connected with the corruption uncovered by Magnitsky and those involved in his death and also, more generally, those involved in human rights violations against individuals seeking to promote human rights or to expose corrupt activity by officials in Russia.[3]  The Act provided for directed US sanctions, such as entry bans and asset freezes, against persons in Russia that the President designated on the so-called “Magnitsky list”.

That legislation was called The Sergei Magnitsky Rule of Law Accountability Act of 2012.

So how did the idea of applying this Human Rights Law more widely come about?

After the US first passed the law, those concerned with human rights and corruption under other authoritarian regimes, urged that similar legislation be passed against perpetrators in their countries.  This then led to the United States passing a “Global Magnitsky Act” called the Global Magnitsky Human Rights Accountability Act of 2016, which allowed corrupt abusers in any country to be placed on the “Magnitsky list” and be subjected to targeted sanctions.

In addition to the United States, other countries such as the United Kingdom, Canada, Estonia, Latvia, Lithuania and Gibraltar have passed their versions of “Global Magnitsky Acts”.[4]  Countries that are considering introducing “Global Magnitsky Acts” include Sweden, France, Germany, the Netherlands, Denmark, South Africa, and the Ukraine, as well as the European Union.[5]

In addition to the direct effect that sanctions have on individuals, the mere exposure, or threat of exposure, of corrupt officials/human rights abusers is likely to have a significant deterrent effect on anyone contemplating conduct that may be corrupt or in violation of international human rights norms. That’s why when this issue was raised at Labor’s National Conference in Adelaide, I named China’s communist viceroy, Chen Quanguo in East Turkestan/Xinjiang.

This deterrent effect was addressed by the Chinese human rights activist and president of the World Uyghur Congress, Ms. Rebiya Kadeer, in her statement before a US House of Representatives subcommittee on 29^th April 2015.  She said –

If this [“Global Magnitsky Act”] becomes law, it will have a profound ripple effect, because mere listing some of the most well-known human rights violators in authoritarian states like China will send a powerful message to low-ranking officials that their criminal actions will not be immune to international scrutiny, condemnation, and consequences.

International scrutiny is imperative to achieve tangible results in human rights.  Many Uyghurs face cruel and unusual torture and punishment in the Chinese prison system every day. The Guardian reports today that 17 Uighur/ Australians are being held in Beijing camps in Xinjiang.

Rebiya Kadeer says: Enacting a Global Magnitsky Act will protect the fundamental human rights of the oppressed and save the lives of many peoples, including the Uighurs.”[6]

The campaign for Global Magnitsky laws in the West is gathering momentum and shows how democratic states can, and are more willing to, adopt individualised remedies, such as entry bans, trade bans and asset freezes, to combat the otherwise impunity of corrupt human rights violators in authoritarian countries. As Bill Browder has further said:

Global Magnitsky sanctions will issue a stark warning to human rights abusers and kleptocrats around the world, that no longer will they be able to commit atrocities with complete impunity.  Targeted sanctions against those involved in corruption and human rights abuse will provide an immediate, tangible consequence which directly affects an individual where it hurts them the most – in their pocket.  Leaders of corrupt regimes will know that they are no longer able to protect their ill-gotten gains abroad, or flee to their lavish properties in foreign countries. Totalitarian dictatorships ultimately fall, and when they do, the Global Magnitsky Act will prevent those who have committed human rights abuses from claiming asylum almost anywhere in the world.[7]

It is now time that Australia joined this growing international movement and adopted its own Global Magnitsky law. The more countries that adopt such laws the more jurisdictions that can potentially be made out of bounds to individuals involved in shooting down planes over the Ukraine; or murdering journalists inside embassies; or interning and abusing Uighurs in Chinese concentration camps; or expelling and killing Rohingyas; or starving, incarcerating, torturing, and executing citizens in North Korea; or ethnic cleansing in places like Darfur, Rwanda and Srebrenica; and so on and so on.  Vladimir Putin hates these laws, not so much because they could potentially target him directly – something that is probably unlikely given international relations – but because they could be used to target and expose his cronies and helpers and thus make them less willing to doing his bidding.

Let’s remember in Helsinki, at his summit with President Trump, this was the issue that the Russian Leader raised, indeed demanded that the United States arrest and deport Browder. Observers were astounded that Putin gave the laws such salience at the summit. If the authoritarians are so antagonistic to such an approach, surely that is crucial proof that these laws are potentially very effective.

The nineteenth century Italian philosopher, poet and essayist, Giacomo Leopardi, once wrote, “that the world is a league of scoundrels against honest men, and of the contemptible against the high-minded”.[8]  I don’t agree with him.  But if we let the scoundrels and the contemptible have their way with impunity, then Leopardi’s view of the world becomes more likely.

[1]  From the evidence of William Browder before the HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON AFRICA, GLOBAL HEALTH, GLOBAL HUMAN RIGHTS, AND INTERNATIONAL ORGANIZATIONS, of the COMMITTEE ON FOREIGN AFFAIRS,

Re THE GLOBAL MAGNITSKY HUMAN RIGHTS ACCOUNTABILITY ACT

WEDNESDAY, APRIL 29, 2015, p.6

https://www.hsdl.org/?view&did=794047

[2] The Atlantic, “Bill Browder’s Testimony to the Senate Judiciary Committee”, 25 July 2017 – https://www.theatlantic.com/politics/archive/2017/07/bill-browders-testimony-to-the-senate-judiciary-committee/534864/

[3] See summary of The Sergei Magnitsky Rule of Law Accountability Act of 2012 – https://www.congress.gov/bill/112th-congress/senate-bill/1039

[4] The FCPA Blog, “Bill Browder: Magnitsky Act rattles Putin”, by Richard L. Cassin, July 17, 2018, – http://www.fcpablog.com/blog/2018/7/17/bill-browder-magnitsky-act-rattles-putin.html

Wikipedia ‘Magnitsky Act’ – https://en.wikipedia.org/wiki/Magnitsky_Act

[5] The FCPA Blog, “Bill Browder: Magnitsky Act rattles Putin”, by Richard L. Cassin, July 17, 2018, – http://www.fcpablog.com/blog/2018/7/17/bill-browder-magnitsky-act-rattles-putin.html

Atlantic Council, “Who’s Afraid of an EU ‘Magnitsky Act’? Bill Browder Says It’s Not Just the Targets”, Teri Schultz, 21 November 2018 – http://www.atlanticcouncil.org/blogs/new-atlanticist/who-s-afraid-of-an-eu-magnitsky-act-bill-browder-says-it-s-not-just-the-targets

[6]  Evidence of Ms. Rebiya Kadeer, p.13 – https://www.hsdl.org/?view&did=794047

[7]  Hearing on the Global Magnitsky Human Rights Accountability Act. Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations, Committee on Foreign Affairs, 29 April 2015

https://docs.house.gov/meetings/FA/FA16/20150429/103395/HHRG-114-FA16-Wstate-BrowderW-20150429.pdf

[8]  Giacomo Leopardi, “Thoughts”, translated by J.G.Nichols, 2002, Hesperus Press, London, p.3.