Magnitsky Act
Great Seal of the United States
Long titleRussia and Moldova Jackson–Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012
NicknamesMagnitsky Act
Enacted bythe 112th United States Congress
Citations
Public lawPub. L.Tooltip Public Law (United States) 112–208 (text) (PDF)
Statutes at Large126 Stat. 1496
Legislative history

The Magnitsky Act, formally known as the Russia and Moldova Jackson–Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, is a bipartisan bill passed by the U.S. Congress and signed into law by President Barack Obama in December 2012, intending to punish Russian officials responsible for the death of Russian tax lawyer Sergei Magnitsky in a Moscow prison in 2009 and also to grant permanent normal trade relations status to Russia.

Since 2016 the bill, which applies globally, authorizes the U.S. government to sanction those who it sees as human rights offenders, freeze their assets, and ban them from entering the U.S.[1]

Background

In 2009, Russian tax lawyer Sergei Magnitsky died in a Moscow prison after investigating a $230 million fraud involving Russian tax officials.[2] Magnitsky was accused of committing the fraud himself and detained.[2] While in prison, Magnitsky developed gall stones, pancreatitis and calculous cholecystitis and was refused medical treatment for months. After almost a year of imprisonment, he was allegedly beaten to death while in custody.[3][4][5]

Magnitsky's friend Bill Browder, a prominent American-born businessman working extensively in the Russian Federation after the collapse of the USSR, publicized the case and lobbied American officials to pass legislation sanctioning Russian individuals involved in corruption.[6] Browder brought the case to Senators Benjamin Cardin and John McCain, who proceeded to propose legislation.[7]

Law

In June 2012, the United States House Committee on Foreign Affairs reported to the House a bill called the Sergei Magnitsky Rule of Law Accountability Act of 2012 (H.R. 4405).[8] The main intention of the law was to punish Russian officials who were thought to be responsible for the death of Sergei Magnitsky by prohibiting their entrance to the United States and their use of its banking system.[9] The legislation was taken up by a Senate panel the next week, sponsored by Senator Ben Cardin, and cited in a broader review of the mounting tensions in the international relationship.[10][11] Browder later wrote that the Magnitsky Act found quick bipartisan support because the corruption exposed by Magnitsky was blatant beyond dispute, and "[t]here wasn't a pro-Russian-torture-and-murder lobby to oppose it."[6]p. 329

In November 2012, provisions of the Magnitsky bill were attached to a House bill (H.R. 6156) normalizing trade with Russia (i.e., repealing the Jackson–Vanik amendment) and Moldova.[12] On December 6, 2012, the U.S. Senate passed the House version of the law, 92–4.[9] The law was signed by President Barack Obama on December 14, 2012.[13][14][15][16][17]

Individuals affected

The Obama administration made public a list of 18 individuals affected by the Act in April 2013. The people included on the list are:[18][19][20][21]

Other foreign individuals who have been sanctioned include:

January 2017 blacklisting

On January 9, 2017, under the Magnitsky Act, the United States Treasury's Office of Foreign Assets Control updated its Specially Designated Nationals List and blacklisted Aleksandr I. Bastrykin, Andrei K. Lugovoi, Dmitri V. Kovtun, Stanislav Gordievsky, and Gennady Plaksin, which froze any of their assets held by American financial institutions or transactions with those institutions and banned their traveling to the United States.[25][26]

Actions by the Russian government

In response to the adoption of the Magnitsky Act, the Russian government denied Americans adoption of Russian children, issued a list of US officials prohibited from entering Russia, and posthumously convicted Magnitsky as guilty.[27] In addition, the Russian government reportedly lobbied against the legislation acting through a public relations company led by Kenneth Duberstein.[28][29] Later, a Russian lawyer, Natalia Veselnitskaya was hired to lobby against the Magnitsky Act in the US. She set up a meeting with Donald Trump Jr., purportedly to discuss the matter.[30][31]

Ban on U.S. adoption of Russian children

On December 19, 2012, the State Duma voted 400 to 4 to ban the international adoption of Russian children into the United States. The bill was unofficially named after Dmitri Yakovlev (Chase Harrison), a Russian toddler who died of heat stroke in 2008 when his adoptive American father forgot he was in the back seat of his SUV.[32][33] The next year, 2013, two additional laws were proposed: one was to prevent US citizens from working with political NGOs in Russia, and a second law, eventually abandoned, prevented any foreigner from speaking on state television if they discredited the state.[34]

Banning some U.S. officials from Russia

On April 13, 2013, Russia released a list banning 18 Americans from entering Russia for alleged human rights violations, in a response to the Magnitsky list.[35] The people banned from Russia are listed below.

US officials involved in legalizing torture and indefinite detention of prisoners:

The Russian lawmakers also banned several U.S. officials involved in the prosecution and trial of Russian arms smuggler Viktor Bout and drug smuggler Konstantin Yaroshenko, both serving prison time in the United States:[36][37]

Reception

Australian expatriate jurist Geoffrey Robertson, who is representing some of the Magnitsky campaigners, has described the Act as "one of the most important new developments in human rights." He says it provides "a way of getting at the Auschwitz train drivers, the apparatchiks, the people who make a little bit of money from human rights abuses and generally keep under the radar."[38]

State Duma deputy Yevgeny Fedorov argued that the real purpose of the Magnitsky bill was to manipulate key figures in big business and government, with the aim of pro-American policy in the Russian Federation.[39]

In 2018, the British parliament passed a so-called ‘Magnitsky amendment’ to the Sanctions and Anti-Money Laundering Act to give the government the power to impose sanctions on people who commit gross human rights violations.[40]

Bill Van Auken of World Socialist Web Site condemned the United States for what he described as invoking human rights as a cover for realpolitik in the Magnitsky Act, stating that Washington DC officials had supported "far greater crimes, [such] as when Boris Yeltsin in 1993 ordered bombardment of the Russian White House, the seat of the country’s parliament, killing 62 people".[41][42]

In June 2016, the documentary The Magnitsky Act – Behind the Scenes was released, which presents an alternative view of Magnitsky. As The Guardian relates, that view includes that "Magnitsky was not beaten while in police custody, and that he did not make any specific allegations against individuals in his testimony to Russian authorities."[43] It also suggests that Magnitsky was, as paraphrased by The New York Times, "an accomplice rather than a victim."[44]

In July 2017 on Fareed Zakaria GPS by CNN, Fareed Zakaria interviewed Bill Browder, who discussed the Magnitsky Act, and topics such as why Putin is directly threatened by it, the money given by Russia government to more than 10,000 Russian human-rights abusers, the June 2016 Trump campaign–Russian meeting, and the power and influence of Russian money in Washington, D.C. at present.[45]

Liberal Russian dissidents Vladimir V. Kara-Murza and Boris Nemtsov both approved of the act, calling it "pro-Russian."[46][47]

2017 oversight

President Donald Trump gave a memorandum to Congress on the implementation of the Act on April 21, 2017.[48]

In May 2017, US authorities settled a case against Prevezon Holding, one of the companies used for laundering the money exfiltrated from Russia as result of the fraud discovered by Sergey Magnitsky. The settlement dismissed the case, and the real-estate company agreed to pay a $5.8 million fine.[49][50] Also in May 2017 an investigation was started on £6.6m that was allegedly transferred from the fraud scheme into a banking firm in the UK.[51]

On September 8, 2017, President Trump, in a memorandum, delegated authority to alter the financial sanctions in this act to the Secretary of the Treasury, and the issue of visas to the Secretary of State.[52]

Global Magnitsky Act

Passage

In 2016, Congress enacted the Global Magnitsky Human Rights Accountability Act, which allows the U.S. government to sanction foreign government officials implicated in human rights abuses anywhere in the world.[53]

Initially introduced as separate legislation introduced by Senator Benjamin Cardin (D-MD) in the Senate[54] and Representative Chris Smith (R-NJ) in the House,[55] the Global Magnitsky Act was ultimately incorporated as Title XII, Subtitle F (sections 1261 through 1265) of the omnibus National Defense Authorization Act for Fiscal Year 2017, which became law on December 23, 2016, of the NDAA FY 2017.[56]

Sanctions imposed through EO 13818

Effective 21 December 2017, US President Donald Trump issued Executive Order 13818 which was the first implementation of the Global Magnitsky Human Rights Accountability Act under which the U.S. government imposed sanctions against 13 individuals described as "human rights abusers, kleptocrats, and corrupt actors."[57][58] Under President Trump's direction, US Secretary of the Treasury Steven Mnuchin announced the sanctions against thirteen "human rights abusers, kleptocrats, and corrupt actors."[57] President Trump said that he was "declaring a national emergency with respect to serious human-rights abuse and corruption around the world."[59]

The individuals sanctioned included Yahya Jammeh, former president of The Gambia, and Roberto Jose Rivas Reyes, president of Nicaragua's Supreme Electoral Council.[60] An additional 39 affiliated companies and individuals were also sanctioned by the Treasury Department's Office of Foreign Assets Control (OFAC).[60]

DanGerter

According to The Economist, Dan Gertler, an "Israeli mining billionaire" who is a longtime close friend of Joseph Kabila, who was President of the Democratic Republic of the Congo (DRC) for decades, was also listed in President Trump's EO Annex and placed on the OFAC financial sanctions list.[61] All of Gertler's assets that were under U.S. jurisdiction were blocked.[58] According to a February 2018 article in The Economist, the sanctions statement said that Gertler had "amassed his fortune through hundreds of millions of dollars' worth of opaque and corrupt mining and oil deals" in the DRC.[62] Included in the Executive Order is the list of designated entities "affiliated with" Gertler:[63]

In a November 28, 2019, article in The Economist, it was reported that President Trump's decision to place sanctions on Gertler, who is a close friend of then-President of the Congo, Joseph Kabila, had come as "a shock to many companies operating in the Congo." Citing Tom Perriello, who was then the United States envoy to the African Great Lakes under Barack Obama, the sanctions "probably helped push Mr. Kabila to his eventual decision to stand down in the elections that took place a year later," in the December 2018 general election.[59]

2018

In June 2018, Félix Bautista, a member of the Senate of the Dominican Republic and five companies owned or controlled by him were sanctioned by the U.S. Department of Treasury under the Global Magnitsky Act due to his involvement in significant corruption. Bautista has reportedly engaged in bribery in relation to his position as a Senator, and is alleged to have engaged in corruption in Haiti, where he used his connections to win public works contracts to help rebuild Haiti following several natural disasters, including one case where his company was paid over $10 million for work not completed.[64]

In July 2018, three Nicaraguans were added to the OFAC sanctions list. Nicaraguan National Police Commissioner Francisco Javier Diaz Madriz (Diaz) and Secretary of the Mayor's Office of Managua Fidel Antonio Moreno Briones (Moreno) were sanctioned for being responsible for, or the leaders of entities involved in, serious human rights abuse in Nicaragua. Additionally, OFAC designated Jose Francisco Lopez Centeno (Lopez), the Vice President of ALBA de Nicaragua (ALBANISA) and President of Petronic, for engaging in corrupt activities.[65]

In August 2018, the Treasury Department sanctioned top Turkish government officials, Turkish Justice Minister Abdulhamit Gül and Interior Minister Suleyman Soylu, who were involved in the detention of American pastor Andrew Brunson.[66] Daniel Glaser, the former Assistant Secretary for Terrorist Financing under President Barack Obama, said: "It’s certainly the first time I can think of" the U.S. sanctioning a NATO ally. "I certainly regard it as a human rights violation to unlawfully detain somebody, so I think it falls within the scope of the Global Magnitsky Act."[67]

In November 2018, the Treasury Department announced the imposition of Global Magnitsky Act sanctions against 17 Saudi Arabian officials for their roles in the "targeted and brutally killed" Saudi dissident journalist Jamal Khashoggi, who lived and worked in the United States.[68]

2020

On July 9, 2020, the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) sanctioned 1 Chinese government entity (the Xinjiang Public Security Bureau) and 4 current/former government officials for serious rights abuses against ethnic minorities in the Xinjiang Uyghur Autonomous Region (XUAR).[69] The sanctions were imposed on the basis of serious human-rights abuses which reportedly include mass arbitrary detention and severe physical abuse, among other serious abuses targeting Uyghurs (the Turkic Muslim population indigenous to Xinjiang) and other ethnic minorities in the region.[69]

The four sanctioned individuals include:[69]

On July 31, 2020, the OFAC further sanctioned Xinjiang Production and Construction Corps (XPCC), Sun Jinlong, a former Political Commissar of the XPCC, and Peng Jiarui, the Deputy Party Secretary and Commander of the XPCC, for their connection to similar human rights abuse against the ethnic minorities in XUAR.[70]

The XPCC is a paramilitary organization in the XUAR subordinate to the Chinese Communist Party (CCP), that was created to enhance internal control over the region.[70] XPCC was used by CCP XUAR Secretary Chen Quanguo, who was subject to similar sanctions on July 9, 2020, to implement a comprehensive surveillance, detention, and indoctrination program targeting Uyghurs and members of other ethnic minority groups.[70] The sanction means that all transactions by U.S. persons or taking place within the United States involving any property or interests in property of the sanctioned entities are generally prohibited. The sanctions are stated by the OFAC to be part of "an ongoing effort to deter human rights abuses in the Xinjiang region."[70]

Sanctions imposed through EO 13936

On August 7, 2020, the U.S. Department of Treasury sanctioned 11 individuals "for undermining Hong Kong's autonomy and restricting the freedom of expression or assembly of the citizens of Hong Kong."[71]

These sanctions were made pursuant to Executive Order (E.O.) 13936, which was issued on July 14, 2020 by President Trump to declare a national emergency with respect to the situation in Hong Kong, where actions by China "fundamentally undermine Hong Kong's autonomy and democratic processes."[71]

The sanctioned individuals are:[71]

Calls for additional sanctions

In September 2017, a group of NGOs and anti-corruption organizations identified 15 international cases where alleged crimes were committed. Individuals from countries, including Azerbaijan, Bahrain, China, the Democratic Republic of the Congo, Egypt, Ethiopia, Liberia, Mexico, Panama, Russia, Saudi Arabia, Tajikistan, Ukraine, Uzbekistan, and Vietnam, were nominated for sanctions.[72]

In December 2017, Americans for Democracy & Human Rights in Bahrain stated that,

The Trump Administration has failed to take up cases presented regarding serious human rights abuses committed by Bahraini government officials. Ultimately, there were no individuals or entities from any Arab League member state designated in the Global Magnitsky Act’s first list of designees, despite the submission of eligible cases.[73]

In August 2018, Senator Marco Rubio and a bipartisan group of 16 other members of Congress urged the United States to impose sanctions under the Global Magnitsky Act against Chinese officials responsible for human rights abuses against the Uyghur Muslim minority in Xinjiang.[74] In December 2019, the Uyghur Human Rights Policy Act was passed in the House of Representatives, which calls for the imposition of sanctions under the Global Magnitsky Act.[75] The 2019 annual report of the Congressional-Executive Commission on China called for Congress to consider sanctions against Chinese officials under the Global Magnitsky Act for crimes against humanity.[76][77]

On April 7, 2020, Rep. Chris Smith, called on Secretary of State Mike Pompeo to form a task force “to identify and investigate” Chinese government officials for their role in allegedly silencing doctors and journalists who have spoken out about China's response to the COVID-19 pandemic. Further, Smith suggested that the U.S. apply the Global Magnitsky Act to target specific Chinese officials involved in going after whistleblowers, without punishing the country as a whole.[78]

Similar laws in other jurisdictions

Canadian Magnitsky Law

Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law)
  • An Act to provide for the taking of restrictive measures in respect of foreign nationals responsible for gross violations of internationally recognized human rights and to make related amendments to the Special Economic Measures Act and the Immigration and Refugee Protection Act
CitationS.C. 2017, c. 21
Territorial extentCanada
Assented toOctober 18, 2017
Amends
Special Economic Measures Act and the Immigration and Refugee Protection Act
Status: Current legislation

In March 2015, the parliament of Canada passed an initial motion towards passing such a law.[79] Canada's Sergei Magnitsky Law, officially the Justice for Victims of Corrupt Foreign Officials Act, received royal assent and was passed into law on October 18, 2017.[80] The Act is regulated by the Justice for Victims of Corrupt Foreign Officials Regulations.[81]

On November 29, 2018, Canada amended the Regulations to include 17 foreign nationals from Saudi Arabia, who were accused of being responsible for or complicit in gross violations of internationally-recognized human rights, particularly the torture and extrajudicial killing of Saudi journalist Jamal Khashoggi.[81]

In Europe

In March 2019, the European Parliament passed a resolution 447–70 in favor of passing a Magnitsky Act for the European Union.[82] In her September 2020 State of the European Union address, Ursula von der Leyen stated that one of the European Commission's goals was passing a European Magnitsky Act.[83]

On 6 July 2020, United Kingdom’s Foreign Secretary Dominic Raab announced the first sanctions under a law similar to the Global Magnitsky Act, where 47 individuals came under travel restrictions and asset freezes. The regulations were meant to give the government a power to impose sanctions on those involved in the worst human rights abuses around the world.[84]

See also

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