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?
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,
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.
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
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
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
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.
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.”
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?
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.
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
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
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
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.
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.