“Today this Government and this House send a very clear message, on behalf of the British people: those with blood on their hands, the thugs of despots, the henchmen of dictators, will not be free to waltz into this country, to buy up property on the Kings Road, do their Christmas shopping in Knightsbridge or siphon dirty money through British banks or other financial institutions” 

On 6 July 2020 Dominic Raab, the Foreign Secretary, boldly announced the enactment of the Global Sanctions Regulations 2020 (the “Regulations”), part of the post-Brexit legal landscape of an “autonomous, human rights sanctions regime”. Mr Raab was quick to make clear that the UK would no longer be a hospitable place for perpetrators of the most egregious human rights abuses. Instead, the Regulations have the power to impose travel bans and asset freezes for those suspected of being involved in gross human rights violations. Many will welcome the firm stance; the UK has long been considered a haven for those riches of the very characters and their wealth to reside and invest in; quite the contrary environment for such “despots” and “henchmen of dictators” that Mr Raab is now keen to dissuade.

The Regulations form part of the legacy of the death of lawyer and tax auditor Sergei Magnitsky, who died in 2009 at the age of just 37 in a jail in Moscow, Russia. Sergei had uncovered public corruption at the highest levels of the Russian administration, but he paid a price for being a whistle-blower and was himself accused of fraud and detained in prison, where he was allegedly subject to torture and a posthumous trial following his death. His tragic fate spurred Mr Bill Browder, whose firm employed Sergei Magnitsky, to advocate for heavier penalties for those Russian officials involved, many of whom had chosen to move their assets outside of Russia. Since then, the remit of the “Magnitsky Act” has expanded to include perpetrators beyond Russia and involved in the death of Mr Magnitsky. 

The UK already had some “Magnitsky” style clauses in legislation such as the Proceeds of Crime Act and in the Sanctions and Anti-Money Laundering Act but they are focussed on political torture. Nonetheless, criticism has been levelled at the UK government for the time it has taken to enact its own version given that the wheels have been in motion since 2012 and it has had cross party support. The UK lags behind countries such as Canada, Estonia, Latvia, Lithuania and of course the USA (where it originated) where Magnitsky legislation is well established. 

The Regulations provide for sanctions against both State and Non-State Actors if their activity would amount to a “serious violations of certain human rights” such as the right to life, the right to not be subjected to torture and degrading treatment and the right to be free from servitude, thus widening the scope of the potential human rights violations under its purview. However, the provisions do not yet include corruption and the government has been urged to ensure that it does also address corruption. The relationship between corruption and human rights abuses is well established, therefore its inclusion is vital if there is a genuine desire to punish perpetrators of human rights violations. 

TO DESIGNATE OR NOT TO DESIGNATE?

The current list of designations confirmed by the UK government already contains a number of high-profile individuals and organisations. They include intelligence officials from Saudi Arabia, said to be involved in the assassination of journalist Jamal Khashoggi and two generals from Myanmar, said to be implicated in the genocide of the Rohingya people as well as 25 individuals connected with the death of Sergei Magnitsky. 

Potential designations of persons under the Regulations are considered on a case by case basis and can be applied to a wide range of behaviour connected with the violation such as: inciting, promoting, encouraging or supporting in ways such as concealing evidence or providing financial support. Therefore, it is designed to capture a wide range of actors as potential designations for consideration. On the face of it, this should be welcomed but it remains to be seen whether this strength becomes a weakness through amassing a large volume of potential individuals or companies that becomes unworkable. The converse is also true with criticism likely to ensure if certain persons are not designated. In a recent assessment of the Magnitsky provisions in the USA, Mr Bill Browder highlighted the fact that there were still perpetrators involved in the death of Sergei Magnitsky that were not on the list of designations. 

In Canada, there have been calls to strengthen its Magnitsky Act to enable greater protection of journalists and media freedom. And there have already been calls to include those involved in the horrendous treatment of the Uighur community in China. This was mirrored in the U.K. by MPs in the House of Commons, who will no doubt be waiting to see whether they are included in the designations list in the future. 

Dominic Rabb emphasised the importance of “evidence based”  decisions for lists of designations, given the seriousness of the sanctions and potential for legal action if wrongly imposed. Decisions over who to designate will be rightly scrutinised and there has been a plea for greater transparency such as the ability of parliament to have some oversight over the process of designations, revealing that the decisions made over who to designate are likely to be a political hot potato. 

A TOOL FOR POLITICAL RETALIATION

The strength of the sanctions is that they are targeted at individuals and not countries. This has to be a more preferable approach than imposing sanctions on entire nations, where innocent inhabitants of countries associated with brutal regimes are forced to pay the highest price for the actions of their leaders and governments. Therefore, a more targeted action towards individuals rather than entire nations, should be more effective. But that is not the interpretation of countries like Russia and China, where the imposition of individual sanctions are being seen as a targeted attack on the country as a whole. The UK’s already fractious relationship with China will likely drive that sentiment and it is hard to see how, in the current climate, any measures taken to sanction individuals or companies from China, will not be seen as anti-Chinese. The USA already faced a churlish retaliatory move in response to sanctions that it placed by stopping American citizens from adopting Russian children. 

Undoubtedly laws do not operate in vacuums and those that require global co-operation and operate extra territorially, cannot escape political manipulation to some degree or another. But the operations of the Magnitsky provisions in the UK are even more vulnerable to political wrangling. Despite the fact that the Regulations are not yet formally operational, both the Chinese and Russian Ambassadors already dismissed the Regulations as “illegitimate” because, in their view, only the UN has the power to impose sanctions in this way. Both Ambassadors have also warned that the UK should expect retaliatory measures for sanctions placed on individuals from Russia or China. 

Such highly, politically charged reactions may serve to undermine the potential of what are, at their heart, a very effective weapon to combat impunity for human rights violations. The international community is all too aware of the obstacles and time it takes to challenges international justice faces, requiring political will and time to set up international courts and tribunals to try those accused of human rights abuses. The Regulations can help to narrow the accountability gap that exists in the face of serious violations of international human rights law, where other means of achieving justice have failed. Bill Browder described sanctions decisions against Russian individuals as being “pro-Russia” because the Magnitsky regulations may be one of the only ways that they are able to seek some redress for human rights violations, which have had serious repercussions for their own lives. The hope is that they prove to be a deterrent for any individual committing serious human right abuses. But the fear is that they become nothing more than a political bargaining chip and a stimulant for further global conflict and political retaliation, which takes attention away from human rights violations, their violators and the innocent people that continue to suffer. 

Sophie is a Media Lawyer who advises journalists and programme makers on legal, regulatory and ethical issues which can often arise when covering controversial or contentious issues for news programmes and documentaries. Sophie is also studying part-time for an LLM in international human rights and has a particular interest in freedom of expression issues, international criminal law, women’s rights and issues regarding race and combating prejudice in society.

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