Autor/Autorin
The European Union (EU) is making the final preparations for the introduction of an EU-wide global sanctions regime for human rights violations . International sanctions expert Professor Clara Portela would like to see a broader context for the debate.
Dr Clara Portela received her doctorate from the European University Institute in Florence and her master’s degree from the Free University of Berlin. She is currently Professor of Political Science at the University of Valencia (Spain), having previously held a similar position at Singapore Management University (Singapore). As an expert on international sanctions, she frequently advises official bodies and international organisations, including the United Nations, the European External Action Service, the European Parliament, the European Commission, the British House of Lords, the Dutch Ministry of Foreign Affairs, the British Foreign and Commonwealth Office, the Asia-Europe Foundation and various private sector entities.
At the centre of the current international debate on sanctions is the question of how governments can most effectively punish human rights violations and other breaches of international norms and rules. Stopping or even preventing human rights violations remains one of the greatest challenges. Relatively new sanctions regimes such as smart sanctions are considered more effective as they target specific human rights violators quickly and directly. They are therefore intended to have an important deterrent effect, i.e. to prevent new or repeated human rights violations.
On 10 December 2018, the 70th anniversary of the Universal Declaration of Human Rights, the European foreign ministers unanimously approved a proposal by the Dutch government for an EU-wide so-called Magnitsky Act (EU Global Human Rights Sanctions Regime ). The original Global Magnitsky Act was introduced in the USA in 2016. It is named after the Russian accountant Sergei Magnitsky, who was imprisoned and brutally murdered in Russia in 2009. Magnitsky had uncovered a massive tax fraud committed by the Russian government with the help of the Russian mafia against his employer, the British investment company Hermitage Capital. At the end of 2019, the European External Action Service (the EU’s diplomatic body) decided to initiate preparatory work for the new sanctions regime. The law is currently on the verge of being adopted.
„The introduction of a sanctions regime for human rights violations or a so-called Magnitksy list requires additional clarity as to what exactly the aim of this new sanctions regime is. What do the individual countries want to achieve by drawing up these multinational lists in which specific human rights violations are named? Do they want the perpetrators to change their behaviour and stop committing human rights violations? Do they want to bring those responsible to justice? Or do they simply want the perpetrators to no longer have access to certain funds or to no longer be able to travel? That’s the question – it’s not entirely clear what they want to do with this list.“
S.B. Dr Portela, the first fundamental question is probably this: Does the EU really need an additional global sanctions regime and how does it differ from the American model, the so-called Global Magnitsky Act , which was introduced in the US in 2016? After all, the EU already regularly imposes targeted sanctions to penalise human rights violations.
C.P. The instrument in question – the use of targeted measures – is in fact the same. So, imposing a visa ban, ordering the freezing of assets, and blocking the property of a number of individuals (sometimes also companies) and transactions with these parties. The only difference is that, until recently, the EU has only ever imposed such measures on a certain group of people specifically associated with a particular political situation in a country – for example, the political leadership of Belarus or Nicaragua. The idea is to condemn the policies of this group of people in power and to bring about change in the country in question. The moment these people change their behaviour or a new government takes power, they are no longer blacklisted as there is no longer a reason to do so. So the main goal is not to identify them as serious human rights violators. The intention is rather to bring about a political change, a movement in the political landscape of Minsk or Managua.
The situation is currently somewhat different with the planned global sanctions regime, as it is specifically intended to be a list of human rights violations. The crimes appear separately and independently of a specific country. This means that the intention of this list is not as clear as it used to be for very specific country crises.
In other words, the introduction of a sanctions regime for human rights violations requires additional clarity as to what exactly the aim of this new sanctions regime is. What do the individual countries want to achieve by drawing up these multinational lists in which specific human rights violations are named? Do they want to stop the violations? Do they want to bring those responsible to justice? Or do they want the perpetrators to change their behaviour and stop committing human rights violations? That is the question – it is not entirely clear what they want to do with this list. Perhaps they just want to create a worldwide list of the most egregious human rights violations to emphasise how strongly they condemn these people, and that they declare them personae non gratae , but without really expecting anything to change except the disclosure of these atrocities.
S.B. But doesn’t the mere inclusion of certain people on a blacklist constitute a relatively serious punishment, in that the perpetrators are publicly named, they may no longer be able to travel, access to their foreign funds is made more difficult or even denied altogether, etc.?
C.P. Well, yes, that could be the case. You could see the lists as a punishment in themselves and this could certainly have a deterrent effect, as the crimes are now recognised by a broad public. But it really depends on the situation. In the case of Belarus or Venezuela, for example, as soon as you put certain people on the blacklist, you are clearly signalling to them that they should change something. Either they should relinquish power in order to organise new elections or to stop the repression or to achieve social liberalisation in order to open up the economy. However, the basic idea is also that the people in question can be removed from the list over time if they no longer fulfil certain criteria. But with a Magnitsky-type list, one wonders whether there is even a possibility of removing people from the list? Or have these people committed such serious crimes that no matter what they do – even if they stop the offences – they will still be on the list?
S.B. So an important open question is how to get off the list once you are on it.
C.P. If you can be taken off the list at all! If certain people have committed genocide, as was (obviously) the case with the Myanmar military’s actions against the Rohingya, is it enough to stop this oppression? If the people in question stop committing these crimes and never commit them again, will they be removed from the list? Maybe there is no such possibility. I am not saying that this approach is right or wrong. I just want to emphasise that a global sanctions regime for human rights violations raises important questions, if only because such a list changes the instrument (targeted sanctions) from its original nature and intention.
S.B. There is, however, an important psychological aspect to the sanctions process.
C.P. Of course. Of course you want to stigmatise the target persons or certain institutions, but I think that imposing sanctions is also a way of defining the identity of the sender state or the sender organisation of these sanctions. In the sense that it clearly positions itself against certain human rights violations and crimes. In addition, many of the target countries are recipients of donations. You certainly don’t want to be seen as a financier of a murderous regime. You don’t want to appear to be on good terms with such regimes.
S.B. If I understand you correctly, public shaming of the perpetrators or stigmatisation alone can have a very strong effect, even if the sanctions process itself does not bring about the desired change.
C.P. Absolutely. In fact, many countries are deeply affected or even offended when they become the target of sanctions. Especially those countries that are concerned about their international prestige and have ambitions to become regional leaders feel attacked or even embarrassed.
But as I have just said, this psychological effect also applies to the party imposing the sanctions. In the case of the sender states, it cannot always be strictly assumed that the main reason for imposing sanctions is to change a certain behaviour of the target persons or a target country. There are situations where you know for sure that the targets will not change their behaviour no matter what you do. At the same time, as an organisation or government representative, you don’t want to tolerate such crimes, you want to strongly condemn them. You know very well that your own society is not prepared to be an accomplice in this matter. I only emphasise this to say that as a sender state or a sender organisation of sanctions, you may not even have the expectation that a certain violation will be stopped. But you impose the sanctions anyway.
S.B. There are still major problems in terms of the public perception of sanctions, more specifically how sanctions actually work and how they are used. This concerns the full range of their effects, including their unintended consequences.
C.P. The public perception of and attitude towards sanctions is indeed fraught with misunderstandings. One of them concerns the impact of sanctions. People associate sanctions with apocalyptic images and extreme consequences for the civilian population. Instead, the impact of EU sanctions on the civilian population is often minimal. Paradoxically, the associated negative perception persists even though targeted sanctions have largely been developed to increase public acceptance of the measures. The responsibility lies with the relevant authorities, who are not sufficiently careful to explain their exact steps and guidelines to the public; and also with parliamentarians, who do not scrutinise the sanctions regulations or who do not take a critical enough look at the selection criteria for both listing and de-listing certain individuals. A public information campaign could go a long way towards closing these gaps.
S.B. To return to the Global Magnitsky Act: William Browder argues that Magnitsky Act sanctions – much like sophisticated drugs – would be directed very specifically at specific adversaries, in this case individuals, thereby avoiding co-punishment of the general population. Do you share this view?
C.P. I do, because we still have a range of very different measures in the area of targeted sanctions. Some of them are extremely targeted – it’s mainly a blacklist of individuals, with names and surnames, and so on. Then there are sanctions that are also considered targeted but are much less precise, such as the blacklisting of a central bank or harbours or the banning of investments or the banning of trade goods. These are sanctions that affect many more people, not just certain elites. The advantage of the Magnitsky list is that it does not affect goods or commodities, but only individuals and, to a certain extent, companies directly involved in a particular offence. I would describe a global sanctions regime for human rights violations as the pinnacle, the culmination of targeted sanctions, because here the link to individual countries is completely severed. Now all that matters is the offence as such and the person who committed it. The list is thus decoupled from any political crises.
The only thing that worries me is that if you change the official approach so fundamentally, i.e. if you no longer hold individuals accountable for human rights violations in the context of a particular political crisis, such as in Belaraus, Nicaragua or Venezuela, then you have to be particularly careful to make it clear exactly what you want to achieve. To reiterate, do you want these people to change their behaviour? Do you expect them to stop their criminal behaviour or will they remain on the list forever because of the serious crimes they have committed, no matter what they do in the future? Do you want these offenders to be brought to justice? Do you want them to be indicted by the International Criminal Court? Do you want the respective national justice systems to bring them to justice? What exactly is the expectation? And I am not saying that one approach is right and another is wrong. I am simply saying that it is very important in this context to clarify what this new global sanctions regime for human rights violations is ultimately about.
S.B. So does that remain the biggest hurdle that the planned new sanctions regime has to overcome within the EU, including the need to specify the selection criteria for the blacklist?
C.P. A key challenge is certainly the formulation of the selection criteria for the planned sanctions list: These must meet the requirements of due process in order to stand up to legal scrutiny and at the same time fulfil the purpose of the intended sanctions regime. The selection criteria are therefore very important. The range of criteria that result in the various listings and cancellations can be set narrower or wider, and in the case of Magnitsky-type legislation, they obviously have to be very precisely formulated. But the point I’m trying to make is actually a different one. It’s not about who is put on the list and for what reason. The fundamental question is what we want to achieve with this listing. Who do we expect to take certain actions?
S.B. In your view, has the recent assassination of Russian dissident Alexei Navalny increased the likelihood that the EU will introduce a global human rights sanctions regime? What other questions need to be clarified?
C.P. Overall, this new legislation has progressed much more slowly than other sanctions regimes that the EU has recently agreed on. One of them deals with the use of chemical weapons, another with cyber security . These two sanctions regimes came about much more quickly. The slower pace shows that there are problems with this new legislation. The devil really is in the detail. With a meaningful description of the objectives of the intended legislation and a clear list of criteria, the new sanctions regime for human rights violations could well become a very useful tool. Those responsible for the Navalny poisoning can be named under the existing EU sanctions regime against chemical weapons attacks. This avoids the need to include them in the future EU human rights sanctions regime.
The question is, of course, whether the envisaged sanctions regime will ultimately be designed intelligently enough and whether it will be possible to prevent abuse of this new regime. For example, there is a clear risk that some truly egregious human rights violators will be listed alongside perpetrators of much lesser offences. There will be a grey area between these two groups in which hardly anyone will appear. This can lead to gross disproportions and inconsistencies later on. This can easily lead to accusations of „double standards“, which are already frequently heard in the debate on sanctions. This can lead to the creation of an endless list of egregious and possibly not so egregious human rights violations, which actually serves no other purpose than to emphasise the awfulness of these crimes. Ultimately, this leads to a sanctions regime that could damage the EU’s credibility as a defender of human rights. The question is whether or not the EU will find a way to use this new sanctions regime to really improve human rights situations somewhere. And that is obviously a very big open question.
S.B. How can these potential mismatches and inconsistencies you mention be addressed more effectively?
C.P. By narrowing the scope of the regime and by listing those cases that are well documented and based on solid evidence. To narrow the scope of the regime, one possible solution is to divide the sanctions regime into two parts: one dealing with violations of international humanitarian law and a second dealing with human rights violations related to large-scale, cross-border corruption. This would limit the number of eligible entries (listings). In particular, the formulation of selection criteria for corruption will allow the EU to tackle a form of human rights violation that is not normally part of its routine sanctions practice: namely those associated with cross-border illegal activities related to grand corruption, for example those that result in serious environmental damage, in addition to systematic human rights violations. I am thinking, for example, of the practices of land grabbing and large-scale deforestation in sub-Saharan Africa or in South-East Asia. These violations cause great damage, but they do not occur as part of a democratic backsliding to which the EU normally responds with sanctions.
On the one hand, this is a way of recognising the link between serious corruption and human rights violations. Secondly, the inclusion of serious corruption in the EU’s selection criteria enables entries to be made in the list that are also of great interest to the USA and Canada. Both countries already have an anti-corruption sanctions regime in place, which makes it easier for the EU to harmonise its rules with those of its allies.