What action can the CEE countries take against the “bad guys?” How to send out a clear message that political corruption, blackmail, organ trafficking, rape and other crimes have no place in our countries? And how can we protect ourselves from the worst criminals of the world?
The answer has three words: the Magnitsky Law. An unprecedented global initiative to pass legislation that would allow national governments to impose personal sanctions on human rights violators resembles a thriller movie more than anything.
Who was Sergey Magnitsky, the man whose name probably makes Vladimir Putin grind his teeth in anger? Why is there an undeclared hybrid war raging around this piece of legislation? And how can passing the legislation help the CEE region?
The story of Sergey Magnitsky – an auditor who changed the world
Eleven years ago, in November 2009, Sergey Magnitsky died in a Russian prison. The reason was neither old age, nor an unfortunate deadly disease. He was tortured, denied medical care, eventually dying of a gall bladder infection. Until the very last moment, he did not stop believing in justice and the positive power of rule of law. Each week, he submitted lengthy official complaints about the state of his health and the way he was treated, requesting contact with his family and proper medical care. During 358 days in detention, he wrote over 400 complaints and petitions seeking justice.
His name is often mentioned together with Anna Politkovskaya and Boris Nemtsov, as a straightforward example of yet another Russian who paid with his own life for fierce criticism of the Russian political regime. Yet Sergey Magnitsky was never a member of the Russian opposition. He was a lawyer and accountant, working for British billionaire businessman Bill Browder and his hedge fund Hermitage Capital Management, which was until 2004 the biggest foreign investor in Russia. Before his arrest, Magnitsky was investigating a 230 million dollar web of financial fraud, allegedly involving Russian government figures misappropriating funds related to companies which were confiscated from Browder by a criminal group with close ties to Kremlin representatives. His investigations were completely apolitical, purely business-motivated.
Yet in November 2008 three representatives from the Russian Interior Ministry arrested Magnitsky. Ironically, the Interior Ministry officials who arrested him worked for the same officer he testified against. A year later, Magnitsky died in prison. His death has become a symbol of the fight against corruption and the oppression of human rights all over the world. Magnitsky was a tax lawyer and auditor who changed the world, and one who may yet change it even more.
Putin’s Biggest Enemy and International Crusade for Passing the Magnitsky Act
Magnitsky’s death set in motion a spiral of events no one could have anticipated. However, if there was ever a man who could make the impossible possible, Magnitsky’s boss – Bill Browder – was a likely candidate. This billionaire with influential connections at the highest levels of global politics turned almost overnight from one of the biggest advocates of appeasement with the Russian regime and the biggest foreign investor in Russia into, as some call him, Putin’s number one enemy.
His motivation was quite straightforward: there were no legislative tools to bring criminals responsible for Magnitsky’s death to justice. So he decided to persuade the British and the American government to change the legal gamefield. Simply, this law imposes visa bans and asset freezes on individual human rights abusers — particularly those who played a role in Magnitsky’s false arrest, torture and death. However, eventually he decided to turn this into a global initiative, with the ultimate goal of persuading governments all over the world to implement their own version of a piece of legislation called the Magnitsky Act. Browder has spent the last nine years fiercely campaigning for the law, and his efforts are bearing fruit.
Explaining the Magnitsky Act
Proponents call it the first solely human rights violations-focused sanction mechanism in the world. The Magnitsky Act, specifically, is a piece of legislation allowing individual countries to impose personalised sanctions on individuals violating human rights anywhere in the world. The measures which can be implemented include the power to freeze bank accounts and other assets, and ban individuals from entering a given country. As a result, the Magnitsky Act can be perceived as a tool to strengthen the foreign policy toolkit of individual countries. So far, seven countries have implemented the legislation: the US, Canada, the UK, and the three Baltic countries; the newest addition to this group is Kosovo, which passed the Magnitsky Act at the beginning of 2020.
However, it is not always sunny in the realm of human rights protection, and the piece of legislation does have a number of forceful critics too.
One of the strongest arguments against it concerns a fear of unnecessary antagonisation of Russia, while other critics call the legislation superfluous, given that there are already a number of recognised and effective international sanction regimes under the auspices of international organisations such as the European Union and the United Nations.
A final common argument against it is the altogether defeatist retort that “sanctions will not change anything.” Taking each of these in turn however, reveals these concerns as largely misplaced and unfounded.
a) Universal Human Rights Protection Tool
Russian President Vladimir Putin has called the law „a purely political and unfriendly act“. And just days after the US act was passed, Russia retaliated through deploying a number of countermeasures, including barring Americans from adopting Russian orphans.
More importantly however, even though the initiative was originally envisaged as a tool against a criminal group with close connections to Russian police and the ministry of finance, responsible for Magnitsky’s death, it has since developed much beyond that. Currently, sanctions apply to 148 individuals and entities suspected of human rights abuses and corruption worldwide.
The US government, for instance, has unilaterally imposed sanctions on 94 individuals and 102 entities from 24 countries, including South Sudan, Uganda, Iraq and Cambodia. Among the individuals listed, we find Myanmar officials responsible for the genocide of Rohingya; doctors and Chinese officials involved in illegal organ trafficking of Uyghurs; and warlords from Africa.
The most prominent individuals listed on the US Magnitsky sanctions list include: Chechen Leader Ramzan Kadyrov; the daughter of late Uzbek President Islam Karimov, Gulnara Karimova, who is involved in political corruption; 17 individuals involved in the murder of Saudi journalist Jamal Khashoggi; and, billionaire Israeli mining magnate Dan Gertler.
b) Targeted Sanctions Mechanism
To address the second counterargument, unlike many international sanctions regimes, the Magnitsky Act, by targeting individuals rather than entire countries or sectors, avoids ‘broad-brush’ sanctions that can disproportionately affect more vulnerable citizens in target states.
This targeted approach also enables the direct sanctioning of malicious individuals and networks, even from countries that are considered to be allies or crucial for broader foreign policy priorities. For instance, the 2017 and 2018 US Global Magnitsky sanctions listed above involved Saudi and Israeli nationals, individuals from countries which are strategic allies of the US and, thus, unlikely to be the subject of broader international financial sanctions.
It is true that the EU already has the power to impose sanctions to promote international peace and security, prevent conflict, fight terrorism and defend democratic principles and human rights. Sanctions can be imposed upon governments of third countries (as is the case of Iran, Burma, Venezuela and others), or non-state entities and individuals. However, this current mechanism seems to be insufficient in ever changing geopolitical environments, and the context of challenges that democracies must face.
The EEAS has already undertaken steps to prepare a new sanction mechanism based upon the same principle as the Magnitsky Act.
It is very likely though that the EU will decide to omit Magnitsky’s name, to avoid creating an impression that the law is primarily anti-Russian. This would go directly against the main idea behind the new EU sanctions regime proposal, which is to enable the EU to impose visa bans or to freeze the assets of individuals from any country in the world who commit serious human rights violations and abuses.
Among the proposed crimes that would trigger such sanctions are: extrajudicial, arbitrary or summary executions, enforced disappearances, torture and other cruel, inhumane and degrading treatment. If the law passes, this would send a strong message to those who may commit or be complicit in abuses that the financial centres and currencies of the world’s two largest economies (the EU and the US) are off limits.
Nevertheless, some EU member states still choose (or have chosen to) pass their own versions of the Magnitsky Act. One of the reasons for this might be that this piece of EU legislation is not without its flaws – the proposal only applies to human rights abuses and doesn’t cover corruption like the US version does.
The original version of the Magnitsky Act in the UK does not cover corruption either. The most likely explanation is that they prefer not to rely solely on the EU’s often slow and cumbersome foreign policy processes. Indeed, the Magnitsky Act can actually strengthen the foreign policy even of the member countries of the EU and make it less dependent on it. The Act enables national countries to pass sanctions more quickly and flexibly or pass them against those individuals whom a majority of EU members might not agree about.
c) Projecting Strong Global Message
It is important to maintain that the Act is not simply a symbolic ‘virtue signal’ of international law. Personalised sanctions are of course only one part of the anti-corruption puzzle, but they are an important tool in the arsenal. Such sanctions make it more difficult for criminals to launder illicit gains or continue to do such business in dollars, pounds or euros, the most common global currencies.
They will enable countries to freeze the bank accounts and assets of individuals within their own territories or local banks. They are a successful example of concrete action being taken against the corrupt and the worst human rights abusers, hitting them where it hurts the most – in their pocket. Indeed, as Browder himself states: “These types of individuals keep their money in the West, where property rights and rule of law exists. This led to the idea of the Magnitsky Act, which freezes assets and bans visas of human rights violators.”
Additionally, the inconvenience of being denied entry to the US, Canada, UK or the EU is also a significant penalty, as is the considerable stigma that comes with being sanctioned. Australia, for instance, is currently considering setting a new precedent in its version of the Magnitsky Act, by also including family members of targeted individuals into travel bans, such as children wanting to study at private schools and universities or parents seeking to go to hospitals.
In the words of Elaine Pearson, director of UN Human right watch: “By joining other countries with similar laws, Australia will be sending a strong message to abusive leaders everywhere that there are far-reaching consequences for their actions.”
Implementation in the CEE space
For Magnitsky-type laws to be effective and to have a meaningful impact, it is crucial that more states join in and introduce an equivalent of the Magnitsky Act. Besides the EU, Australia and Sweden, three countries in the CEE region are currently taking steps to pass the law: the Czech Republic, Slovakia and Romania. What then must these countries do, in order to successfully implement the Magnitsky Act, and ensure that its detractors are proven wrong?
Czech Republic: a one-man crusade
In the Czech Republic, the crusade to get the legislation passed has largely taken the form of a one-man show. The legislation is currently being advocated for by one Member of the Czech Parliament – member of the Czech Pirate Party, vice chairman of the committee on defence and the foreign affairs committee, Jan Lipavský. The Minister of Foreign Affairs, social-democrat Tomáš Petříček, a supporter of the EU version of the Magnitsky Act, seems reluctant to embrace a Czech version of the legislation. This could be, at least in part, a result of political pressure from his own political party and from the Czech president, both of which are known for their closeness to autocratic regimes such as Russia and China.
The Pirate Party is in opposition and therefore has very limited options to get any piece of legislation passed. This means that the chances for passing and implementing the Magnitsky Act by the end of the current political mandate in October 2021 are very slim, to say the least. Similarly to the EU approach, Mr. Lipavský has also decided to omit the name “Magnitsky” in the title and simply name it “The Law on Human Right Protection.” Primarily, because it is against the Czech common practice to name laws after people. Secondly, for reasons akin to the EU’s; to avoid allegations of intentionally targeting only Russian officials.
Slovakia: an outsider agenda
For Slovakia, the Magnitsky Act bears a unique meaning. Until this day, Slovakia is the only country from the CEE region which has a citizen who has been directly targeted by the Magnitsky Act. The US administration has decided to add to its sanction list Marián Kočner, a Slovak oligarch who is directly responsible for the murder of Slovakian investigative journalist Ján Kuciak and his fiancee Maria Kušnírová in early 2018. Similarly to the Czech Republic, Slovakia also supported the European version of the Magnitsky Act.
Nevertheless, Slovak political representatives have indicated their interest in the Magnitsky Act before the decision made by Washington. Like in the Czech Republic, the main driving force behind the legislation was a group of MPs led by a member of the Slovak Parliament and leader of the Political Party “Together”, Miroslav Beblavý. One of the promises he made during the political campaign was the promise of passing this legislation if re-elected. During the late February 2020 parliamentary elections, the coalition of liberal parties Together and Progressive Slovakia did not pass the threshold for entering the parliament. With no other political party having the implementation of the Magnitsky Law on its agenda, it is very unlikely that there will be any significant progress on this matter in the foreseeable future.
Romania: a victim of political power play
Out of the three CEE countries in question, the Magnitsky Law proposal got the furthest in Romania, being presented on the floor of the Romanian Senate. The main initiators of this legislation were three members of the Save Romania Union (USR); Adrian Prisnel, Iulian Bulai, and Cristian Ghinea.
Fighting corruption is the most important topic for the third biggest Romanian party and so it made sense for the USR to make this human rights initiative their own. New sanctions were to be made more “flexible” than the older, country-based ones, and were therefore predicted to have a “strong psychological effect” on the abusers. The main punishment was supposed to be the visa ban and asset freeze.
However the proposal was primarily focused on severe human rights abuses. Similarly to the UK and EU Magnitsky Acts, the Romanian proposal did not list corruption as a crime. However, this might come as a surprise for many observers, given that the proposal came from the so-called “anti-corruption” party.
When the three MPs submitted their proposal to the Committee on Foreign Affairs of Romanian Senate in April 2019, they may have expected a positive reaction from fellow MPs. This was partly because, in 2018, 43 Romanian MPs signed a petition urging the government to adopt a ‘Magnitsky Act’, imposing sanctions on human rights abusers. It was also because the draft had been signed as a sign of support by 33 MPs out of 136, most of them from their own faction, but also by three deputies from the ruling Social Democratic Party and two from the National Liberal Party, the second largest party. Thus, there was an indication of broader support. However, the draft was finally declined by the Committee and only members of the USR ended up supporting it.
In the Romanian case, some claim that the Magnitsky Law became a victim of political power play. Indeed, it may well have been viewed by other Romanian political forces as a potential internal political weapon in political battles with the Social Democrat Party and in the ongoing attempt by the USR to take over support from the National Liberal Party, while also reinforcing its position in its tenuous alliance with the PLUS party, another reformist entity led by former European Commissioner and technocrat Prime Minister Dacian Cioloș.
Another possible explanation is that maneuvering against the proposal may also have simply been an attempt to prevent further antagonising Russia, with relations between the two countries at their lowest point in decades and dialogue practically non-existent. However, the USR was not completely discouraged by their loss. In January 2020, the leadership of the USR announced that they would seek to reintroduce a new version of the law.
There has been no progress on this matter ever since. Partially also because according to some, there is a sense that institutions like the DNA (Anti-Corruption Directorate) are strong enough to handle corruption, including transborder.
Also, the state had shown the will in the past to sanction individuals, such as denying Dmitri Rogozin the right to transit Romanian air space. In conclusion, there is very little urgency or impulse to the Magnitsky act and it is very unlikely it will resurface in a foreseeable period of time.
Why it matters
There are also key reasons, specific to the CEE region, for passing this piece of legislation. Primarily, it is about enhancing an international order based on universal values, which is equipped with mechanisms for preventing their extortion.
CEE countries stand to gain from a rules-based order that has powerful enforcement mechanisms, as opposed to a more transactional system, where their negotiating power is likely to be limited. A piece of legislation strengthening their foreign policy in the name of human rights is an epitome of such an order and a logical addition to a national diplomatic toolkit of post-Soviet countries.
At a more profound level, the Magnitsky package, with its both human rights and anti-corruption dimensions, should become part of an expanded arsenal of tools to compete in the 21st century geopolitical arena. Creatively used, it can simultaneously be leveraged for deterrence purposes, but also for lawfare especially against those foreign adversaries that instrumentalise corruption to manoeuvre, exploit and weaponise certain vulnerabilities within the CEE space. The region is particularly prone to malign foreign interference via corruption, clientelism and lack of transparency. The comprehensive Magnitsky legislation could be seen as an important step in enhancing regional resilience to hybrid operations.
CEE: a hybrid target
Recent years have seen frequent hybrid operations intent on meddling in the internal affairs of CEE countries on the part of both Russia and China, clearly indicating that neither of them respects the sovereignty of the CEE region countries. Such influence operations include, but are not limited to, strategic corruption, espionage, blackmail, performed through hacking, as well as other forms of cyber attacks, including the spread of hostile propaganda and disinformation in both the public and virtual space – with a recent spike since the onset of the COVID-19 pandemic. We can recall attempts of espionage in Poland from Chinese-owned Huawei in 2019, the attempted state coup in Montenegro in 2017, and the attempted assassination of Emilian Gebrev in Bulgaria, to name but a few. Or the very recent “Koněv affair” where the decision of the local government of Prague 6 to remove an old statue of Soviet Marshall Koněv from a square in Prague led to a chain of disinformation campaigns, cyber attacks, and the activation of Czech far-left and far-right civil actors.
There is little doubt, by now, that the novel coronavirus pandemic is a threat not only to health and the economy, but also to some of our democracies. In order to fight the spread of the virus effectively, governments have to restrict civil rights. Some are becoming excessively good at it.
Emergency powers sometimes fit into the plans and desires of would-be autocrats in search of an opportunity to grow stronger. This is done at a rapid pace and is creating growing concern. To give just one example, calling Mr. Viktor Orban a dictator, once an expression relegated to informal conversation, is now becoming mainstream (see The Economist coverage on April, 2nd vs. April, 23rd).
But there is another problem that plagues even countries that remain committed to liberal democracy: how to hold elections. Elections can be quite robust: polls have taken place during wars, famines and civil unrest. But this kind of crisis is peculiar. Elections bring people together in various ways and bringing people together will surely bring about disease.
Let us walk through the options.
Business as usual
This one is the most clear-cut case. Running elections during a pandemic increases the health risks for participants and society at large. Since people will realise that, they are likely to come to the polls in smaller numbers, undermining to an extent the very legitimacy of the process. France played brave and saw it happen.
Delay the elections
An obvious strategy would be to delay the elections until a better moment arrives. Mostly, such plans suppose that the virus would be less… viral during the summer months. But this is just untested theory yet.
Also, playing with the elections date can be politically and constitutionally complicated. Some constitutions require elections to happen before a well-defined moment.
Even where it is constitutionally possible, delaying elections at will may still give governments the power to pursue improper political gains. Even when they do not give in to temptation, opposition parties may feel that they do.
One easy way to lower the risk posed by elections seems to be to keep the polls open during more than one day. Thus, there will be greater social distancing, especially if people are advised to come to the polls in different days, according to their name or any other random characteristic.
But other problems remain. People will still need to be in close proximity to those who are part of the elections committee, will still use pens and stamps.
Those who handle the pens, stamps and ballot boxes will be particularly vulnerable. Keeping the polls open during more than one day might actually have a discouraging effect on these people, even though, statistically, they are at no greater risk.
Multi-day elections would also be relatively novel since, typically, countries are more than happy to close the polls the same day they open them. Romania has tried this approach a few times, particularly when referenda required a quorum to be considered valid and people were reluctant to meet that quorum.
Vote by (physical) mail
In such a scenario, postal workers would deliver the ballot papers to the citizens, making sure that everybody who has the right to vote gets one authenticated piece/ set. Then, so to speak, the mailbox would become the ballot box. (Multiple similar arrangements are possible)
Mail voting is regularly done in the case of citizens who live abroad, or who are unable or sometimes unwilling to come to the voting booth on election day. It is considered safe in the United States (though president Trump recently disagreed). But in the UK a judge ruled in 2005 that “the system is wide open to fraud and any would-be political fraudster knows that”, adding that he could find “evidence of electoral fraud that would disgrace a banana republic”, according to the BBC.
Scaling up such a system would create major logistical and security problems. Can postal companies and services cope with such pressure? After all, they are continuously losing market share to more agile competitors. Supposing the deed can be done, the mail worker may choose not to deliver the postal sacks from areas where people tend to vote “the wrong way”.
Americans have voted by mail in record number in the recent US elections. The same was also planned to take place in Poland, already arousing suspicions of a familiar combination of authoritarian slide, ill-prepared policies and malevolent intentions. The same was also planned to take place in Poland, already arousing suspicions of a familiar combination of authoritarian slide, ill-prepared policies and malevolent intentions.
However, even if postal voting were possible and secure, it may be unconstitutional in many countries. After all, nobody wrote a constitution with a pandemic in mind.
Even if constitutional, postal voting is not necessarily safe from the coronavirus. Citizens would have to be identified by the postal workers and few institutions in Eastern Europe would accept identification without some form of handwritten signature. That makes postal workers potential super-spreaders. It also makes them potential victims. It is worth remembering that in some East-European countries postal workers are essential for delivering pensions, utility bills, and generally keeping remote places connected to the world.
Voting by Internet
Large scale Internet voting is logistically easier (possibly, maybe, we do not really know). But all the other problems of postal voting come back to us with a vengeance. People would still need to identify themselves when they get some form of “electronic right to vote”. The process would be ripe for spreading the virus. It also could be unconstitutional in many countries.
On top of this, there are a whole host of ways to defraud internet voting. And, very importantly, voting fraud is much easier to scale than in pretty much any reasonable elections scenario.
E-voting may be the future, but, realistically, the technology is not here yet.
Are there any ways out?
Earlier this year Singapore revised electoral districts and promoted measures to ensure that voting was possible during a pandemic. This was read by some as a sign that the government is considering snap elections to capitalise on the success of containing the virus. As the number of infections increased, plans seem to have been abandoned. However, speculation about snap elections were not a cause for public outcry, suggesting that the population is generally willing to trust that the government will be able to organise elections safely (voting is mandatory in Singapore).
Can we, in Eastern Europe, or Europe generally, copy that model? Not really. Singapore is a strong state, some say authoritarian, inhabited by a compliant population that is well familiarised with social distancing from previous epidemics. Europe, and especially Southern and Eastern Europe, are nothing like that. The case of Singapore suggests, nevertheless, that, if the pandemic persists, we might eventually learn to competently live with it to the point where relatively safe elections become possible.
Another theoretical option is sortition, which is randomly selecting people for office. Such means of selecting magistrates was a staple of ancient Athenian democracy and was used later in some Italian Republics. Nowadays it is used sparingly in “citizen juries” selected to advise politicians on issues.
Given a large enough elected body or simple enough responsibilities, it can be argued that sortition ensures representation of relevant opinions at least as accurately as elections, if not better.
However, such a solution precludes the citizens from giving a mandate to elected leaders. It also results, sociologically speaking, in diminished legitimacy and trust. In Romania, for example, after each major election the number of people who believe that the country is heading in the right direction increases. Such moments of optimism would be lost.
Last, but definitely not least, only very few – if any – constitutions in Europe would allow it.
It may well be that the actual response to the electoral challenges of the virus will come, like the virus itself, in waves.
We experience now a wave of confusion. Governments are under political or constitutional pressure to hold elections. But the science about the coronavirus is in flux and new ideas are untested. So, decision-making will include a certain degree of randomness.
And there is ample room for bad decisions. In Poland voting by mail was deemed impossible at such short notice. So, elections were postponed de facto – but not necessarily de jure, because it was too late in the process (it’s complicated).
Next comes the mix-and-match wave. Various means of voting described in this article could be used simultaneously. And each country might have its own combination. Inclusive electoral democracy will pay off: countries that already have more inclusive voting options will have it easier, both from a legal and a logistical perspective.
At least in summer, good mixes stand a chance to deliver good elections. But it will take a while to get everything in good order. After all, for Singapore, which was first to consider holding elections despite the virus, this is not its first epidemic.
And then we hope for an effective vaccine to come.
The considerations above are far from exhaustive. They aim not to be a study in electoral alternatives, but to illustrate the challenges that any such alternative would face.
Not to mince words, we are at a point where democracy kills, because elections kill. When calling an election, governments will know that they are sending people to death just as surely as they know it when they send troops into the fight. But, at least, modern troops are volunteer-based rather than conscripted. Army members choose to risk their lives. But, in an epidemic, citizens who go to vote will implicitly risk the lives of those who do not vote.
This will undoubtedly impact the legitimacy of elections and, by extension, of democracy itself. But resilient democracies can move on. Failed elections are not a proof of failed democracies, but rather of failed public health planning. Once the crisis is gone, democracies can fully recover.
Except where democracy is already plagued by “pre-existing conditions”.
PS When I wrote this article, I said that we were living a period of confusion on what safe alternatives to traditional elections looked like. In a certain sense, we are still there.
According to the Council on Foreign Relations, more than 60 countries have postponed elections from the start of the pandemic. But those who did hold them largely abstained from innovation. Behind the plethora of public health measures the same-old same-old kind of action took place: in-person, single-day, come-when-you-like (exceptions exist).
Did it work? For some countries it did but for some others it did not. As the virus will continue to roam among us for months (at least), the discussion is still valid: are governments doing everything to protect the voters? Or are they trying to make choices that are safe for themselves, adhering to the conventional wisdom more than necessary.
An inflexion point may be brought about by the US elections, where extended mail-in voting seems to be the solution of choice. A successful, reasonably uncontroversial process may give the world a signal that alternatives are possible. Anything less may scare government away from electoral innovation.