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Sanctioning for Human Rights – The Choices Facing Britain

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As the UK gov­ern­ment pre­pares to use new sanc­tions pow­ers to tar­get those respon­si­ble for gross vio­la­tions of human rights, it must ensure clear cri­te­ria for their use are estab­lished from the start.

Having pre­vi­ous­ly imple­ment­ed sanc­tions as a mem­ber of the EU, after Brexit, the UK can now pur­sue sanc­tions des­ig­na­tions on its own. RUSI’s Task Force on the Future of UK Sanctions Policy has close­ly fol­lowed this issue, includ­ing exam­in­ing areas where the UK appears enthu­si­as­tic about using sanc­tions to advance British for­eign pol­i­cy goals. One such area is the pro­tec­tion of human rights.

SPECIFICALLY BRITISH?

The Sanctions and Anti-Money Laundering Act of 2018, which sets out the pow­ers for UK sanc­tions after Brexit, includes spe­cif­ic pro­vi­sions for human rights sanc­tions. Foreign Secretary Dominic Raab has clar­i­fied that sanc­tions will be used to ‘pro­vide a lay­er of UK account­abil­i­ty’ against author­i­tar­i­an regimes who tar­get jour­nal­ists and human rights cam­paign­ers, and has pledged to work with coun­tries like the US and Canada – who are already using human rights sanc­tions – ‘to tar­get human rights abusers’. The UK’s first human rights-relat­ed sanc­tions des­ig­na­tions are expect­ed at any moment.

Using sanc­tions to address gross human rights vio­la­tions is not a new idea. The UK will join a small group of (Western) coun­tries who have embraced so-called ‘Magnitsky’ sanc­tions regimes, named after Russian lawyer Sergei Magnitsky who died from mis­treat­ment in a Russian prison in 2009, after reveal­ing large-scale tax fraud by offi­cials. The US Congress passed the Magnitsky Act in 2012 which gave the US the abil­i­ty to tar­get those respon­si­ble, and in 2016 leg­is­la­tors in Washington passed the Global Magnitsky Act, enabling the US to tar­get human rights abusers any­where in the world. Around 250 indi­vid­u­als and enti­ties are cur­rent­ly sanc­tioned on those lists, most recent­ly  the first vice pres­i­dent of South Sudan.

Canada, too, is embrac­ing the use of human rights sanc­tions, and has sanc­tioned 70 indi­vid­u­als under its own Sergei Magnitsky Law. In addi­tion to human rights, the US and Canada also tar­get cor­rupt offi­cials as part of their Magnitsky regime. This com­men­tary will how­ev­er only focus on human rights-relat­ed des­ig­na­tions.

The EU is work­ing on pass­ing its own human rights sanc­tions regime, and the Australian par­lia­ment recent­ly opened an inquiry into whether Australia should adopt sim­i­lar pow­ers.

With the use of Magnitsky – or human rights sanc­tions – expand­ing, it is how­ev­er worth exam­in­ing just what these sanc­tions do, how they are dif­fer­ent from sanc­tions against spe­cif­ic coun­tries, as well as the prob­lems that can arise by their use.

WHENEVER, WHEREVER

It is easy to see why human rights sanc­tions regimes are attrac­tive to gov­ern­ments. A human rights sanc­tions regime is the­mat­ic – focused on gross vio­la­tions of human rights regard­less of where in the world they occur, or who is respon­si­ble for them. They offer an open-end­ed man­date to freeze the assets of, and put in place trav­el bans against, indi­vid­u­als involved in or respon­si­ble for gross vio­la­tions of human rights, with­out nec­es­sar­i­ly sanc­tion­ing an entire econ­o­my or a coun­try at large. Invoking human rights as grounds for sanc­tions is a pow­er­ful tool for coun­tries to strong­ly sig­nal their dis­ap­proval, and – in the words of Raab – be a ‘good glob­al cit­i­zen’.

However, with such a broad man­date comes chal­lenges. While inter­na­tion­al def­i­n­i­tions of human rights exist, their inter­pre­ta­tion can some­times be sub­jec­tive, and there are plen­ty of exam­ples through­out his­to­ry where coun­tries have con­demned human rights abus­es in one coun­try, while ignor­ing oth­ers. Sanctions, even if designed by civ­il ser­vants, are still polit­i­cal tool. The UK’s Sanctions and Anti-Money Laundering Act gives the pow­er to make sanc­tions reg­u­la­tions to ‘an appro­pri­ate min­is­ter’, and it will be dif­fi­cult to remove human rights sanc­tions from polit­i­cal con­sid­er­a­tions alto­geth­er. This is par­tic­u­lar­ly true in an age of Brexit, where the UK gov­ern­ment will be seek­ing to strike trade agree­ments around the world.

An uneven appli­ca­tion of human rights sanc­tions will inevitably invite accu­sa­tions of dou­ble stan­dards. For the UK, this means that if the UK is pre­pared to sanc­tion human rights abusers in a small, less devel­oped coun­try, it must be equal­ly pre­pared to do so against indi­vid­u­als in coun­tries with whom it is nego­ti­at­ing free trade agree­ments.

TO PUNISH OR TO CHANGE BEHAVIOUR?

According to the UK gov­ern­ment, sanc­tions are used to ‘sig­nal dis­ap­proval’, ‘con­strain a tar­get’ and ‘coerce [the tar­get] into chang­ing their behav­iour’. Crucially, con­ver­sa­tions in Westminster seem to under­score that UK sanc­tions should not be a puni­tive tool – that is, a tool only deployed to place a finan­cial penal­ty on a sanc­tioned tar­get.

As such, sanc­tions are used to respond to behav­iour that gov­ern­ments do not agree with and are lift­ed when that behav­iour ceas­es. Put sim­ply, EU sanc­tions against Iran pri­or to the agree­ment of the Joint Comprehensive Plan of Action were linked to Iran’s nuclear pro­gramme – and once an agree­ment put lim­its on that pro­gramme sanc­tions were lift­ed accord­ing­ly. Most of the cur­rent EU sanc­tions mea­sures against Russia are sim­i­lar­ly linked to Russia’s com­pli­ance with the Minsk II agree­ment that seeks to stop fight­ing in Donbass. In both cas­es, the idea is that eco­nom­ic pres­sure will ‘coerce’ tar­gets into chang­ing behav­iour or com­ply­ing with demands, in return for sanc­tions lift­ing. Without the expec­ta­tion that sanc­tions can be lift­ed again, there is lit­tle rea­son for the tar­get to change behav­iour.

Human rights sanc­tions, too, must con­sid­er this stan­dard for­mu­la of sanc­tions.

This is not the same as say­ing that gross human rights vio­la­tions should be for­giv­en, but if sanc­tions are to work as a pol­i­cy tool to cease human rights abus­es, then they must have an exit strat­e­gy attached to them. Of course, human rights abusers can sep­a­rate­ly face crim­i­nal charges – either in their own coun­try or in inter­na­tion­al tri­bunals – and an expec­ta­tion of prop­er crim­i­nal pro­ceed­ings might in fact be one of the cri­te­ria attached to sanc­tions being lift­ed.

CRITERIA MATTERS

The estab­lish­ment of clear cri­te­ria mat­ters both in terms of how indi­vid­u­als are placed on a human rights sanc­tions list, and also how they can be removed again.

Individuals may be des­ig­nat­ed due to their posi­tion with­in a gov­ern­ment or mem­ber­ship of a cer­tain group involved in human rights abus­es and are there­fore deemed account­able as a result of their posi­tion. Under such cri­te­ria, indi­vid­u­als will need to be removed from the sanc­tions list once they are no longer in that posi­tion. In this case the cri­te­ria – and evi­dence need­ed – for a des­ig­na­tion is clear, how­ev­er it is of course up to the UK to decide which gov­ern­ments or groups are tar­get­ed in the first place.

Individuals can also be list­ed due to their own direct behav­iour, rather than the behav­iour of the group they belong to. Under such cri­te­ria, the cri­te­ria for lift­ing is a demon­strat­ed change in behav­iour, some­thing that can be dif­fi­cult for indi­vid­u­als to prove with­out clear evi­dence of why they were placed on the list in the first place.

It is impor­tant to set lift­ing cri­te­ria at the right lev­el. If the cri­te­ria are too low, it is pos­si­ble that actors can appear to have met them only to car­ry on or revert to their pre­vi­ous activ­i­ty. If the cri­te­ria are too high, there is a risk that tar­get­ed indi­vid­u­als will feel lit­tle moti­va­tion to change behav­iour and the cri­te­ria might be coun­ter­pro­duc­tive to what the sanc­tions regime is try­ing to achieve.

In sum­ma­ry, while the UK’s human rights sanc­tions regime pur­sues a good and noble cause on paper, there are issues attached to the use of these sanc­tions in prac­tice which must be resolved. Otherwise, the use of these sanc­tions risk being under­mined by accu­sa­tions of uneven appli­ca­tion and dou­ble stan­dards and may not achieve a change in the behav­iour of tar­gets.

The UK must pur­sue an approach to human rights sanc­tions that has clear objec­tives, is applied uni­ver­sal­ly regard­less of who is vio­lat­ing human rights, and is under­pinned by clear cri­te­ria through­out the sanc­tions process.

Read the first Occasional Paper from RUSI’s Task Force on the Future of UK Sanctions Policy, ‘Designing Sanctions After Brexit: Recommendations on the Future of UK Sanctions Policy’.

AUTHOR

Emil Dall
Research Fellow, Centre for Financial Crime & Security Studies

The views expressed in this Commentary are the author’s, and do not rep­re­sent those of RUSI or any oth­er insti­tu­tion.

BANNER IMAGE: Courtesy of Adrian Grycuk/Wikimedia Commons

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