Panel recommends strengthening ‘Magnitsky law’ to protect journalists

Lawyer Amal Clooney, vice-chair of a panel of international legal experts, speaks at the release of its report in London at Chatham House, the Royal Institute of International Affairs. Seated from left are chair Lord David Neuberger, Prof. Sarah Cleveland of the Columbia University law school, Prof. Elizabeth Wilmshurst, Distinguished Fellow of International Law Programme at Chatham House, and Irwin Cotler.

Canada’s Magnitsky law, which allows sanctions against egregious foreign human rights abusers, needs to be strengthened, recommends an independent international panel of legal experts that includes Irwin Cotler, who was a proponent of enacting such legislation when he was a member of Parliament.

The Canadian version of the law, adopted in late 2017, is “the most restrictive” in how in can be applied, the panel said in a report released in London on Feb. 13, in comparison to similar laws passed by the United States, United Kingdom and the European Union.

Sergei Magnitsky was a Russian lawyer who died in 2009 while in prison. It is widely believed that he was framed and murdered for exposing high-level financial corruption within Russia.

The report was prepared along with the International Bar Association’s Human Rights Institute, and the panel, convened by Canada and the U.K., was chaired by the former president of the U.K. Supreme Court Lord David Neuberger and vice-chaired by lawyer Amal Clooney.

A former minister of justice and attorney general, Cotler is now a founding chair of the Montreal-based Raoul Wallenberg Centre for Human Rights (RWCHR).

The experts strongly recommend that all rights-respecting countries adopt similar legislation, and that existing Magnitsky laws be broadened in terms of whom the sanctions can target. In particular, the experts looked at how international sanctions could additionally protect journalists and media freedom.

“Sanctioning the architects of repression is a crucial expression of solidarity towards their victims, and the most effective means of ending the culture of impunity that underpins their criminality,” Cotler said.

Mainly, sanctions that target individual state officials, freezing the assets they may have in Canada and banning them from entering the country and conducting financial transactions with Canadians. They are usually applied where the perpetrators will not be prosecuted in their own country.

“Many governments are refusing to hold perpetrators to account, and in many places the governments are the perpetrators,” the report states.

The experts contend such measures do have “teeth” and are having a real impact on the abusers and are working as a deterrent.

“Such sanctions are indeed, in the current global political climate, often the only way to hold those responsible to account,” the report continued.

With respect to the Canadian law, the experts note that it only permits sanctions against individuals acting “as an agent of or on behalf of a foreign state” and, in cases of acts of corruption, against individuals who are themselves a “public official or an associate of such an official.”

They recommend extending the law to encompass “non-state actors,” such as terrorist groups like ISIS, as well as “legal entities,” for example, companies.

Generally though, the report is congratulatory toward Canada, the U.S. and the U.K., and deplores the international community’s slowness to follow them.

“One of the most promising tools for enforcing human rights is not being used to meet some of the most serious global challenges to individual rights and democracy,” the report states.

The panel stresses expanding existing legislation to protect journalists and media freedom, which it says are under unprecedented assault around the world.

Those who unjustly imprison or arbitrarily detain journalists should be sanctioned, including the prosecutors and judges who are responsible. Along with those who cause systemic restrictions, like Internet shutdowns.

The report emphasizes that journalists are increasingly under threat in many parts of the world, often facing physical abuse and murder.

Another criticism of the Canadian law is that, unlike that of the U.S. and the U.K., it does not target “secondary participants,” that is those who collaborate with abusers. Only those who are “complicit” in acts of corruption may be subject to sanction.

“The business associates, financial facilitators and middle-men who enable illicit activity often play a key role in allowing the activity to continue,” the report states.

The panel recommends that the U.S., U.K., Canada and the EU establish a co-ordinating committee to share information and consider joint sanctions.

Officially entitled the Justice for Victims of Corrupt Foreign Officials Act, Canada’s Magnitsky law has to date been applied to officials in Saudi Arabia, Venezuela, Myanmar, Iran and Russia, among others.

The panel also thinks Canada should have independent oversight of how the law is used, as is the case in the U.S. and U.K.

“The system is entirely discretionary, leaving it to the Foreign Minister to list individuals, based on the advice of officials. Unlike the U.S. regime, Canada’s Magnitsky law does not include a role for the legislative branch or for external actors in triggering consideration of specific sanctions or in reporting on them.”

A parliamentary all-party human rights caucus does consider evidence for sanctions submitted from civil society groups and others, “but unlike the U.S. and U.K. systems, the legislation does not require the government to publicly respond to any evidence or proposals that are submitted,” the report notes.