Habemus a European Magnitsky Act

The Global Human Rights Sanctions Regime, or the so-called European Magnitsky Act, has come into effect at the beginning of December 2020, just a couple of days before Human Rights Day on the 10th of December. This sanctions framework consists of two legal acts: Council Decision and Council Regulation that provide for targeted measures against any individual involved in gross human rights violations outside the EU borders. This blog post reveals how the discussion of this mechanism evolved within the EU, what changes it introduces and what gross human rights violations will be targeted.

How did it come into being?

This mid-October, the European Commission and the High Representative for Foreign Affairs put forward the proposal for a Council Regulation on ‘EU Global Human Rights Sanctions Regime’, accompanying the Council Decision to install a specific EU-wide human rights sanctions framework. Such a mechanism is designed to allow for the punishment of serious human rights violators outside the EU borders. It consists of travel bans, asset freezes and prohibition to make funds and economic resources available to those who would otherwise escape justice under the corrupted authoritarian system. It is well-known that high-level officials and businessmen of undemocratic regimes feel comfortable securing their assets in European banks and enjoying holidays in their villas abroad. With this Act, the EU is sending a message to those holding power in authoritarian regimes that their human rights violations will not go unnoticed.

Similar Magnitsky-type frameworks were already introduced in the UK, US, Canada, and the Baltic states. Up until now, the EU did not have any horizontal mechanism for sanctioning gross human rights abuses. To punish such violations, it relied on country-specific measures (e.g. sanctions on Syria, Libya, Venezuela, Belarus, Myanmar). In 2018, the Dutch Government initiated a discussion among the EU Member States on a targeted human rights sanctions regime. This initiative received support of the European Parliament which has repeatedly called for the establishment of an EU-wide sanctions mechanism targeting human rights abusers. The debate over the EU Magnitsky Act gained impetus with the launch of the preparatory works by the European External Action Service (EEAS) in December 2019. However, the human rights sanctions regime was not brought to life back then. This was partly due to the complexity of EU decision-making procedures, which often requires unanimity or consensus for Common Foreign and Security Policy (CFSP) related matters. In her State of the Union address, Ursula von den Leyen called for a qualified-majority voting on EU sanctions.

The EU Global Human Rights Sanctions Regime is modelled after the US 2016 Global Magnitsky Act in continuation of the Sergei Magnitsky Rule of Law Accountability Act of 2012.  This Act was passed in the United States to punish Russian officials responsible for or benefitting from the death of the attorney Sergei Magnitsky who exposed a multi-million dollar tax fraud scheme involving Russian elites. His client William Browder was a man lobbying for the Magnitsky Act worldwide (you can read the story of his fight for justice described in the book ‘Red Notice’).

The attribution of the Magnitsky’s name to the EU’s final piece of legislation received some divergent feelings. Even though some found it symbolic to honour the memory of Magnitsky, EU decision-makers finally opted for a generic name to avoid any anti-Russian connotations with regard to the character of the Act.

Thematic Human Rights framework with more flexibility

The EU  Magnitsky Act is not country-specific but focuses on a particular problem. Under this horizontal framework, the EU will be able to act quickly when human rights are at stake in any part of the globe. The listing of human rights abusers would be separated from sanctioning a specific country. The thematic nature of sanctions is more in line with their targeted character and enhances the principle of individual responsibility with no unintended effects on citizens of the country. There are other examples of thematic sanctions regimes in the EU, not centred on a country such as the EU terrorist list, sanctions addressing the use of chemical weapons and cyberattacks. The Commission also envisages the use of targeted sanctions to counter disinformation as part of the European Democracy Action Plan.

The EU Magnitsky Act offers a simplification of decision-making in contrast to country-specific measures. The EU would avoid lengthy and difficult procedures required for setting up a completely new geographic legal framework. Repeated internal blockades by a Member State (like the one with Cyprus that delayed the sanctions against Belarus for weeks) would be avoided with this kind of listing human rights violators. This will contribute to strengthening the EU position as a global human rights defender.

What qualifies as gross human rights violations?

The interaction between international human rights law and international humanitarian law plays an important role for the application of targeted restrictive measures under the EU Global Human Rights Sanctions Regime (Art. 2(2) of the Regulation). In its current form, the human rights sanctions mechanism covers gross human rights violations such as genocide, crimes against humanity, torture, slavery, arbitrary arrests or detentions, extrajudicial killings, forced disappearance (Art. 2(1) of the Regulation). Three criteria for demarcating gross human rights abuses can be identified in the EU global human rights framework. First, the concept of jus cogens which introduces norms of international law that cannot be derogated from, including inter alia prohibition of torture, genocide and crimes against humanity. The second demarcation criterion is the evaluation of whether human rights abuses are widespread and of a systematic nature. And the third demarcation criterion entails the analysis of whether human rights abuses seriously contradict the objectives of the EU’s foreign policy enshrined in Article 21 TEU. The EU foreign policy goals include, inter alia, the promotion of its own founding principles such as democracy, the rule of law, human rights and fundamental freedoms, and respect for human dignity.

Contrary to the US 2016 Global Magnitsky Act, the EU human rights mechanism does not cover acts of significant corruption. While the EU can impose sanctions for the misappropriation of state funds through country-specific measures (e.g. sanctions against Ukraine officials), the EP called in its resolution on a European human rights violations sanctions regime for the inclusion of abuses and acts of systemic corruption as one of the crimes punishable under the EU Global Human Rights Sanctions Regime. Nevertheless, the role of the EP is very limited when it comes to foreign policy matters, with no way to influence the wording of the Council CFSP Decision. At the same time, it remains questionable whether corruption qualifies as a gross human rights abuse, despite its being a threat to the democratic system and its institutions.

The ill-defined nature of what qualifies as gross human rights violations constitutes the main challenge of the new global human rights sanctions mechanism. It still remains unclear how to draw a fine line between human rights violations which fall under this thematic sanctions framework and those which shall be covered by country-specific restrictive measures. Such a demarcation also entails a hierarchy between human rights which is difficult to square with the understanding that all human rights are indivisible, interdependent and interrelated. In the absence of precise guidelines, there is a risk of creating exploitable loopholes leading to arbitrary decisions and double standards. The need for a clear-cut definition of the scope of violations was also mentioned by the EP in its resolution.

Conclusion

The promotion of the respect for human rights forms part of the cornerstone of the EU’s external action (Art. 21(2)(b) TEU). The Global Human Rights Sanctions Regime is a new foreign policy tool that can be deployed by the EU in order to deter and punish state and non-state actors responsible for gross human rights violations worldwide. The global human rights framework provides for three demarcation criteria for identifying gross human rights abuses: 1) jus cogens concept which introduces norms of international law that cannot be derogated from, 2) the evaluation of the character (widespread and  systematic) of human rights abuses and 3) whether human rights violations seriously contradict the objectives of the EU’s foreign policy enshrined in Article 21 TEU.

While the new sanctions mechanism offers a higher degree of flexibility and a simplification of decision-making in contrast to country-specific measures, it introduces an ill-defined concept of gross human rights violations. The wording of the Council Decision and Regulation does not provide clear-cut guidelines as to how to draw a thin line between serious and non-serious human rights abuses. Furthermore, such a hierarchy of human rights is incompatible with the principle that all human rights are universal, indivisible, interdependent and interrelated. Against this backdrop, it remains to see how this new global human rights sanctions mechanism will be put into practice and how it will interact with traditional country-specific sanctions against human rights violators.