Over the last weeks, the world has been confronted with the awful realities of war and witnessed atrocities in Ukraine. The depravity of those fueling this conflict has been shown by harrowing pictures, such as a young pregnant woman being dragged from the debris of a maternity facility in Mariupol that came under Russian bombardment.
As calls for accountability grow, Congress must protect and strengthen the Global Magnitsky Act to ensure that it remains a flexible and necessary sanctions tool for targeting war criminals, human rights violators, and corrupt actors – in Ukraine, Russia, and everywhere such abusers cause suffering and death. Legislators are presently contemplating such action, which is desperately required.
Following cries for justice following another Kremlin assassination 13 years ago – that of whistleblower Sergei Magnitsky – bipartisan majorities in Congress passed several laws, including the 2016 Global Magnitsky Act, which allowed the US government to sanction individuals for human rights violations and corruption anywhere in the world for the first time. With this landmark legislation, the United States government will be able to impose serious consequences on abusive actors worldwide, including blocking them from entering the country, freezing their assets, and prohibiting others from doing business with them.
The Magnitsky Act soon became one of Vladimir Putin’s most despised laws. He and other autocrats understood that the promises that kept them in power – that their cronies might get rich via corrupt and abusive ways and conceal their money safely in Western nations were in danger.
However, the visionary Act was not without practical limits. Perhaps most notable were the restrictions set on the sorts of human rights offenses that may be sanctioned, which the Act defined as “severe infringement of internationally recognized human rights.” That legal phrasing indicated that the US government could only penalize 1) government actors, 2) repeated violations, 3) from a limited list of violations, 4) on their national territory, and 5) in their official capacity. Serious abuses such as rape, sexual assault, and human trafficking were not clearly included on the list of offenses.
One of the other limitations of the Act is that it only permitted the US government to penalize abusers who targeted whistleblowers and human rights campaigners, leaving out the vast majority of victims. The Act also makes it significantly more difficult to prosecute people who help and abet human rights violations or head cruel groups than those who pull the gun or issue the command. With these impediments, even the perpetrators of the Mariupol maternity facility are unlikely to be sanctioned under Global Magnitsky.
Faced with this reality, the Trump Administration issued Executive Order 13818 in 2017 to enforce the Global Magnitsky Act, transforming the sanctions program into a legitimate instrument for promoting accountability. The Executive Order set a viable threshold by permitting sanctions for “severe human rights abuse,” allowing nonstate actors, single incidents of abuse, and other acts of physical violence to be sanctioned regardless of where they happened or whether the offender was on duty. It also removed arbitrary constraints on who qualifies as a victim and included perpetrators who play essential but indirect roles, such as leaders of abusive organizations.
Today, 138 people have been sanctioned for significant human rights violations under the Global Magnitsky sanctions program — and nearly three out of every four of these sanctions would very certainly not have been conceivable under the original Act. For assaults against people, nonstate entities such as militias in Iraq, Libya, and the Democratic Republic of the Congo have been sanctioned. Individual atrocities, such as the murder of Jamal Khashoggi and the arrest of pastor Andrew Brunson, have also been sanctioned. Without having to establish that their victims were human rights activists, the US government was able to penalize Chinese officials and Burmese military personnel for widespread crimes against religious minorities.
This adaptability results in a rare policy instrument capable of responding to a wide spectrum of violent human rights violators. This is why, when it reauthorizes the Global Magnitsky Act, Congress must codify these reasonable principles. Over the last year, momentum has gathered in that direction, with a key Senate committee unanimously passing a measure in that direction last year and the House enacting a companion bill.
Some have expressed concern in recent days that the “serious human rights violation” standard should not be codified, claiming that 1) it has never been used in federal law before, and 2) it is so broad that individuals could be sanctioned for religious beliefs or nonviolent speech aligned with those beliefs. This norm, however, is not new and may be found in a number of sanctions-related acts addressing violations in Iran, Syria, North Korea, Russia, Nicaragua, and China. Furthermore, it is not without precedent or restriction. In the nearly five years after the Global Magnitsky standard was created, it has only been applied in circumstances involving arbitrary imprisonment or physical assault against another person. Domestic and international law continue to safeguard free expression and religious beliefs.
Since the first Russian missiles hit Kyiv, civil society organizations have been working around the clock to investigate and record crimes in order to censure and hold criminals accountable. However, under the original Global Magnitsky Act, what happened to the Mariupol mothers and other civilian victims would very certainly not be sanctionable. They weren’t the “appropriate type of victim.” Their deaths were not considered “gross violations” under US law. Ukrainian officials have reported accusations of rape and sexual assault committed by Russian forces against Ukrainians, which, if true, would fall beyond the scope of the legislation. These harsh, arbitrary criteria may obstruct responsibility for countless innocent victims to come in this heinous conflict, as well as millions of victims like them across the world.
In the midst of Russia’s horrific incident on Ukraine, Congress should fully support codifying the Executive Order’s amendments to the Global Magnitsky Act, demonstrating that it stands with victims rather than against them.