Interview: Peter Dahlin

At the centre of the current debate on sanctions is the question of how governments, but also other social and political bodies, can most effectively punish gross human rights violations and other serious breaches of international norms and rules. One of the greatest challenges remains stopping human rights violations when they occur or preventing them altogether. Relatively new sanctions regimes, such as so-called targeted or „smart“ sanctions, are considered more effective because they target specific human rights violators quickly and directly. At the same time, they are intended to have an important deterrent effect, i.e. to prevent new human rights violations.

The best-known example of a targeted human rights sanctions regime is the Magnitsky Act, named after the Russian tax lawyer Sergei Magnitsky, who was imprisoned and brutally tortured in Russian prisons in 2009 after testifying against his employer, the British investment company Hermitage Capital Management, in a massive tax fraud scheme allegedly perpetrated by Russian authorities and the Russian mafia.

The legislation was first proposed by British businessman William Browder, owner of Hermitage Capital, who has mounted a tireless campaign to punish those responsible for Magnitsky’s death. Browder’s central argument is that the global spread of the law will provide governments and human rights advocates with important new tools in their fight to hold human rights abusers to account.

The Magnitsky Act provides for two types of sanctions: Travel and visa bans and asset freezes. The original Magnitsky Act was passed in the US in 2012 and penalises Russian officials involved in Magnitsky’s murder, including (Russian) individuals who profited from the crime. Since 2016, the law has applied worldwide and allows the US government to impose sanctions on human rights violators regardless of where these crimes occur. Other countries that have passed similar laws – a full or partial Magnitsky Act – are Canada, the UK, Estonia, Latvia and Lithuania.

On 9 December 2019, one day before the 71st anniversary of the Universal Declaration of Human Rights, European foreign ministers unanimously decided to adopt a proposal by the Dutch government for an EU-wide Magnitsky Act (EU Global Human Rights Sanctions Regime). The law is expected to be formally adopted later this year. Australia is also currently considering the introduction of a Magnitsky Act.

Q: Safeguard Defenders‘ has just released its latest publication Fighting Impunity: A guide on how civil society can use the Magnitsky Act to sanction human rights abuses. (Safeguard Defenders, 2020). It’s essentially a step-by-step guide on how to file a formal complaint against human rights violators in countries that have passed so-called Magnitsky legislation. Why now, what makes this publication so urgent?

PD: The main problem we’re trying to solve is that the Magnitsky Act looks good on paper. But if it is not enacted, it has no value. We have been told by several governments that they need accurate information and targets to implement the Magnitsky Act. And so far, NGOs and civil society have not been very active in filing complaints against such potential targets, i.e. human rights violators. Our concern is to involve civil society more in this process of filing complaints. In this way, we can turn it from a theoretical to a practical tool for the defence of human rights. So we are trying to solve this one specific problem – how can civil society be more involved in the implementation of this measure? Because there is so much potential here. Many countries already have various instruments in place to sanction perpetrators of gross human rights violations. But with the Magnitsky Act, you have a whole new framework for this. There are so many different things that can be done through this law. The fact that you can target specific individuals rather than groups, organisations or countries – I think that has a lot of potential.

Q: You say there are so many different things that can be done with this law. Can you give some examples? What makes it different from other sanctions, from other punitive measures?

PD: Well, it ranges from asset freezes, for example of bank accounts, property and so on, to travel bans. When you freeze the assets of perpetrators, it usually has an impact outside their jurisdiction. For example, if the US government freezes their bank accounts, it will have an impact in many other countries. So what you really want to do and what the law wants to do is prosecute the prey of these crimes. Because many people who participate in these gross human rights violations do so for financial gain, for money. And that’s really what we want to tackle. That and their ability to travel freely in the Western world. This is of course particularly important when it comes to Russia, but also China, for example.

Q: When you say that this affects people’s ability to participate in the international financial system or their ability to travel, that clearly puts some burden on perpetrators with international contacts. But what about human rights abusers who are poor and have no connections outside their own countries? Do you still see a sanctioning effect of the Magnitsky Act for them?

PD: Yes and no. Many low-level perpetrators generally don’t have the ability to travel internationally, they don’t use international banking facilities and so on, there’s much less you can do. But a lot of these people, especially in China, use Hong Kong, which I think is about to overtake London as the biggest financial centre in the world. So a lot of the so-called „lower level“ offenders can also feel the consequences of that. But even for these offenders at most local levels, such as a prison officer in a detention centre, the symbolic knowledge that they are being specifically singled out, that they are being sanctioned, even if it has no direct, practical effect, is of course still an important tool. Especially for the future, because most of these people are future-orientated. So, even if you can’t freeze their bank accounts because they don’t have any relevant assets, that doesn’t mean it’s not a useful tool to go after them.

Q: So you’re saying that the sanctions imposed by the Magnitsky Act also have a very important psychological effect.

PD: Yes, I think so. For the perpetrators, knowing that you are being watched, knowing that you might be able to travel or acquire property or own assets abroad in the future will be a problem. Of course, it will incriminate them. It’s not as effective as being able to prosecute them directly, but it has a symbolic value and I think it also has a psychological value.

Q: You say in your new publication that the main purpose of the Magnitsky Act is not to punish human rights violators, but to change their behaviour. Can you explain that a bit more?

PD: It’s very similar to CGTN (Chinese Party/State Television Broadcaster), where we keep filing official complaints against them when they broadcast material that clearly violates the law, such as coerced confessions from people in detention. It’s not really about getting CGTN’s licence revoked, it’s about responding to these violations in a way that makes those responsible realise that they can’t go on like this. The Magnitsky Act is similar in that if we are successful in cracking down on people who are proven to have committed gross human rights violations, it will raise the bar – it will raise the cost for the Chinese government to continue with their methods. If people can see that this law is actually being implemented, it will be much more difficult to continue the practice. So the actual goals of the Magnitsky Law itself are secondary. I think if you apply it systematically, you will see a difference. For example, it will be more difficult for the police to engage in abusive behaviour because they know there will be consequences. This increases the risks associated with such gross human rights violations.

Q: As the title of your publication suggests, do you see a very important protective function in the Magnitsky Act?

PD: I think so, yes. Not just the knowledge that this right, this law, exists, but that it is actually being implemented. It provides additional protection for human rights defenders who are threatened by these gross human rights violations, especially torture.

Q: So you’re really trying to increase the level of Magnitsky sanctions because the more these human rights violators and abuses are identified, targeted and sanctioned, the greater the hurdles will be in continuing these violations.

PD: Yes, and a lot of our work is really focused on raising the hurdles for these violations, for human rights violations, and that’s an important part of it.

Q: The Magnitsky Act is obviously not a judicial/legal tool, but a political tool. You talk a lot in your publication about very targeted national interests that may or may not lead certain countries to impose sanctions. Does this political dimension of the Magnitsky Act worry you? Does it distract from the objective criteria that would be present and required in a court case, for example?

PD: I think yes and no. I think it’s a problem that it’s clearly a political instrument, that the sanctions that you can expect are essentially based on the political climate. For example, we expect that the situation in Xinjiang – the oppression and imprisonment of the Uyghur population in concentration camps ordered by the Chinese government – will lead to Magnitsky sanctions. These terrible crimes certainly deserve far-reaching sanctions, also precisely because of the scale of the violations. It is essentially a campaign to eradicate an entire culture by brutal means. However, as we have seen, such sanctions are only now becoming a possibility as the climate between the US and China deteriorates. We are also hearing of a tougher stance towards those involved in certain repression in Hong Kong, again mainly because of the ongoing protests, but also because of rising tensions between the US and China. Similarly, the recent extension of sanctions against Iran and Cambodia is certainly linked to important geopolitical factors.

Q: But don’t these political considerations underlying the Magnitsky Act raise at least some questions about the legislation, particularly the apparent arbitrariness with which it is currently being applied?

PD: Yes, the problem at this point is legitimacy. While the Magnitsky Act is a political tool, not a legal one, it can gain legitimacy by expanding the way sanctions targets are selected. As long as the annual sanctions lists are very limited and short, and as long as those sanctioned are from countries in conflict with the sanctioning country, it will continue to be seen primarily as a political tool. The role of civil society will be key to expanding the annual sanctions lists. It is equally important to push for the inclusion of those who deserve to be sanctioned by other countries with which the sanctioning country is not in conflict. Expanding and systematising the Magnitsky sanctions will reduce the perception of sanctions as a mere political tool and increase the legitimacy and thus the effectiveness of sanctions. We have seen some small steps in this direction in the recent round of US sanctions that affected a number of Cambodian targets. But a stronger and faster expansion is needed. The bigger it gets, the less politicised it will be.

Q: You refer to the „sanctioning countries“. Do you think it is necessary for individual countries to adopt their own Magnitsky legislation, or do you think it is sufficient for multinational organisations such as the European Union to adopt a global sanctions regime (Magnitsky Act)? What is the advantage of individual countries adopting this provision?

PD: In the EU, the foreign policy objectives of the EU are not entirely identical to the foreign policy objectives of individual member states such as Germany, Sweden or Italy. I therefore think it is very important for countries to enact their own national legislation of the Magnitsky Act type. And we are currently seeing a push in this direction in many countries. The European Union already has certain instruments at EU level that can be used to impose very specific, targeted sanctions. The problem is that they are not very well known and not very well utilised. So a Magnitsky Act at EU level will significantly improve the ability to actually impose sanctions in practice. But it is not a substitute for individual countries passing their own Magnitsky Act, not at all. In fact, both are necessary, at national and EU level.

Q: Many countries, such as Sweden, argue that they are subject to EU policy that they can only impose certain types of sanctions at national level. Doesn’t this cause some serious conflicts?

PD: I don’t think so. I think it’s important to use as many sanctions as possible at EU level because the EU is much more powerful. The problem is that many politicians use this argument as an excuse not to act. We have often seen this in Sweden, for example.

Q: What do you think are the biggest misconceptions about the Magnitsky Act? What would you like people to know or understand about this law?

PD: I think the one thing that makes the Magnitsky Act so strong and unique is the fact that it’s really the first time that we have a real tool, a law that targets individual offenders. This is not about states, it’s not about groups or organisations. It’s about individuals who commit clear, gross human rights violations, and the fact that for the first time we can really take systematic action against these individuals is incredibly powerful, both symbolically and practically. It’s really inspiring, especially for someone like me who deals with human rights on a daily basis.

Q: So you think that the effectiveness of the Magnitsky Act is actually very strong or very high? Because that remains one of the main points of discussion, how effective is this law actually?

PD: The reaction that we’ve seen, particularly from Russia and from Russia’s leader [President Vladimir Putin], clearly shows that this is an effective tool. We wouldn’t have seen this kind of incredibly angry reaction if these people who are leading and protecting these human rights violators hadn’t realised the power of this law. The fact that you can go after the prey of these human rights abusers is going to be very powerful. And we wouldn’t see Mr Putin so angry if he didn’t know that this tool is incredibly effective.

Q: But what happens, for example, with a rape victim in Mali and the woman concerned wants to lodge a complaint – how easy is it for the individual(s) to seek sanctions against their attackers, especially if these victims are not powerful, if they are not well connected?

PD: It’s very difficult at the moment. In both the US and Canada, the Global Magnitsky Act is still very new. And although both governments have put in place certain bureaucratic and administrative procedures on how to deal with it, it’s all very, very new. Many people, even in the respective governments, are not quite sure how this process is supposed to work. And in the UK, of course, there’s no procedure at all because they’ve basically said we’re not going to put this procedure in place until after Brexit [Britain’s exit from the European Union]. So it’s very unclear, which means it’s very difficult. It’s difficult for people to realise how to make these complaints and how to do it effectively. But it’s also difficult for those who work in government because they have very little experience in dealing with these kinds of complaints. But I think the more you engage with it, I mean civil society, the easier and better it will become because we are right now, as we speak, shaping this process of how it will work in the future. The more engagement we all bring to the table, the better it will be. But yes, it will be difficult for individual victims, and that’s one of the reasons why we now have this very complete, comprehensive guide that not only lays out the process behind it [the Magnitsky Act], but also the practical circumstances. As you said, this is partly a political process, and the more people realise how they can use it, the better.

Q: How optimistic are you that the Global Magnitsky Act, a global sanctions regime, will endure, that it will have some permanence? Because you have to ask yourself, for example, if the political climate in the United States changes, will there be a willingness to maintain the legislation or will there be efforts to overturn it?

PD: I can’t really answer that, I’m wondering that myself. I’m not very concerned about it at the moment. I think it would be very difficult to reverse this trend that we are currently seeing in the legislation and the passing of Magnitsky laws in different countries, but also in the use of this instrument. I think the overall political situation is quite favourable. So I’m not worried about a reversal. I’m worried about civil society being left out and not engaging with the law. Because, as I said, the more you engage with it, the less political it becomes, and I think that’s important.

Q: Have you also received some reactions from governments and their respective administrations on how to make the Magnitsky Act more user-friendly? Because it’s quite a complex and cumbersome procedure, and it has to be when you’re presenting evidence of serious human rights violations. Due diligence must be exercised, of course, but are there any plans or hopes to make the Magnitsky Act more accessible and simpler?

PD: There are discussions – both in the US and the UK, and to some extent in Canada – between governments and NGO groups trying to find ways to improve civil society interaction. The problem with these discussions is that they have taken place with the promise of absolute confidentiality, so I can’t say too much about that process at the moment, except that these governments are aware that they need to involve civil society more and that they need to make the law itself more user-friendly.

Q: Have you actually filed any specific complaints in relation to China at the moment?

PD: We have provided the US government, at their request, with the information necessary to file Magnitsky complaints. We have not technically done such filings ourselves, we have just given them the information so that there can be an internal process. With the release of this new guide, we will be filing our first official complaint against the then head of CCTV, China’s state broadcaster, against a journalist who was involved in many coerced televised confessions. So this will be our first lawsuit in the US, in Canada and later in the UK.

Q: I asked this question because a few months ago, when we enquired about how to file a specific complaint in relation to Eritrea, we were told that the US State Department, for example, prefers to handle formal filings through its embassies. This means that evidence and other materials should be submitted there and the embassies would then make certain recommendations, eliminating any direct communication between groups or individuals wishing to make a specific complaint. Is this still the case or has the procedure changed somewhat?

PD: This has been the case before, including in China, but it is changing. There is more direct communication with the relevant agencies in the US, rather than going strictly through the respective embassies, and I think we will see more of that. That’s one of the things they’re trying to introduce. In the US, they’ve actually done a pretty good job of making the process more user-friendly to make submissions more direct.

Q: So NGOs and individuals can simply make a submission via the email address listed in the new guide that you just published.

PD: Yes, but it always makes sense to involve the local embassy, at least in most cases. The more people involved, the better. But I think it’s important to make the complaint yourself rather than using an intermediary because that way you also have more control over the process.

Interview: Susanne Berger (Washington, DC, USA)

Peter Dahlin is a human rights defender and director of Safeguard Defenders, an Asia-focused human rights group. In January 2016, Dahlin was arrested by Chinese state security officials in connection with his work for the Chinese Urgent Action Working Group (中国维权紧急援助组), also known as China Action, which he founded in 2009. The group supported the work of lawyers and human rights defenders throughout China. Among other things, it provided financial support and training to so-called „barefoot lawyers“, i.e. private individuals who advocate for the rule of law in China but have no formal legal certification. These defenders of fundamental rights are often the only legal representation that private Chinese citizens can afford. During his detention, Dahlin was repeatedly interrogated through his contact network and subjected to harsh treatment such as sleep deprivation and physical and psychological threats. His forced ‚confession‘ to fictitious crimes – including breaking Chinese laws and „hurting the feelings of the Chinese people“ – was recorded and broadcast on Chinese state television. He was deported from China at the end of January 2016. However, many of his associates and colleagues were detained and imprisoned in China’s brutal prison system, known as Residential Surveillance at a Designated Location (RSDL).

Dahlin is the editor of Trial by Media: China’s New Show Trials and the Global Expansion of Chinese Media (Peter Dahlin, Safeguard Defenders, 2018). He was also one of the main contributors to The People’s Republic of the Disappeared: Stories from Inside China’s Enforced Disappearance System (Michael Caster, Teng Biao and Peter Dahlin, Safeguard Defenders 2017). His latest publication is Fighting Impunity: A Guide to How Civil Society Can Use the Magnitsky Laws to Sanction Human Rights Violators (Safeguard Defenders, 2020).

See: https://safeguarddefenders.com/en/publications