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European Human Rights Court

Sanctioning for Human Rights – The Choices Facing Britain

Emil Dall
Commentary, 15 April 2020
Centre for Financial Crime and Security Studies, Brexit, Security Policy, UK, Securing Britain, Law and Ethics, Sanctions
As the UK government prepares to use new sanctions powers to target those responsible for gross violations of human rights, it must ensure clear criteria for their use are established from the start.

Having previously implemented sanctions as a member of the EU, after Brexit, the UK can now pursue sanctions designations on its own. RUSI’s Task Force on the Future of UK Sanctions Policy has closely followed this issue, including examining areas where the UK appears enthusiastic about using sanctions to advance British foreign policy goals. One such area is the protection of human rights.

Specifically British?

The Sanctions and Anti-Money Laundering Act of 2018, which sets out the powers for UK sanctions after Brexit, includes specific provisions for human rights sanctions. Foreign Secretary Dominic Raab has clarified that sanctions will be used to ‘provide a layer of UK accountability’ against authoritarian regimes who target journalists and human rights campaigners, and has pledged to work with countries like the US and Canada – who are already using human rights sanctions – ‘to target human rights abusers’. The UK’s first human rights-related sanctions designations are expected at any moment.

Using sanctions to address gross human rights violations is not a new idea. The UK will join a small group of (Western) countries who have embraced so-called ‘Magnitsky’ sanctions regimes, named after Russian lawyer Sergei Magnitsky who died from mistreatment in a Russian prison in 2009, after revealing large-scale tax fraud by officials. The US Congress passed the Magnitsky Act in 2012 which gave the US the ability to target those responsible, and in 2016 legislators in Washington passed the Global Magnitsky Act, enabling the US to target human rights abusers anywhere in the world. Around 250 individuals and entities are currently sanctioned on those lists, most recently  the first vice president of South Sudan.

Canada, too, is embracing the use of human rights sanctions, and has sanctioned 70 individuals under its own Sergei Magnitsky Law. In addition to human rights, the US and Canada also target corrupt officials as part of their Magnitsky regime. This commentary will however only focus on human rights-related designations.

The EU is working on passing its own human rights sanctions regime, and the Australian parliament recently opened an inquiry into whether Australia should adopt similar powers.

With the use of Magnitsky – or human rights sanctions – expanding, it is however worth examining just what these sanctions do, how they are different from sanctions against specific countries, as well as the problems that can arise by their use.

Whenever, Wherever

It is easy to see why human rights sanctions regimes are attractive to governments. A human rights sanctions regime is thematic – focused on gross violations of human rights regardless of where in the world they occur, or who is responsible for them. They offer an open-ended mandate to freeze the assets of, and put in place travel bans against, individuals involved in or responsible for gross violations of human rights, without necessarily sanctioning an entire economy or a country at large. Invoking human rights as grounds for sanctions is a powerful tool for countries to strongly signal their disapproval, and – in the words of Raab – be a ‘good global citizen’.

However, with such a broad mandate comes challenges. While international definitions of human rights exist, their interpretation can sometimes be subjective, and there are plenty of examples throughout history where countries have condemned human rights abuses in one country, while ignoring others. Sanctions, even if designed by civil servants, are still political tool. The UK’s Sanctions and Anti-Money Laundering Act gives the power to make sanctions regulations to ‘an appropriate minister’, and it will be difficult to remove human rights sanctions from political considerations altogether. This is particularly true in an age of Brexit, where the UK government will be seeking to strike trade agreements around the world.

An uneven application of human rights sanctions will inevitably invite accusations of double standards. For the UK, this means that if the UK is prepared to sanction human rights abusers in a small, less developed country, it must be equally prepared to do so against individuals in countries with whom it is negotiating free trade agreements.

To Punish or to Change Behaviour?

According to the UK government, sanctions are used to ‘signal disapproval’, ‘constrain a target’ and ‘coerce [the target] into changing their behaviour’. Crucially, conversations in Westminster seem to underscore that UK sanctions should not be a punitive tool – that is, a tool only deployed to place a financial penalty on a sanctioned target.

As such, sanctions are used to respond to behaviour that governments do not agree with and are lifted when that behaviour ceases. Put simply, EU sanctions against Iran prior to the agreement of the Joint Comprehensive Plan of Action were linked to Iran’s nuclear programme – and once an agreement put limits on that programme sanctions were lifted accordingly. Most of the current EU sanctions measures against Russia are similarly linked to Russia’s compliance with the Minsk II agreement that seeks to stop fighting in Donbass. In both cases, the idea is that economic pressure will ‘coerce’ targets into changing behaviour or complying with demands, in return for sanctions lifting. Without the expectation that sanctions can be lifted again, there is little reason for the target to change behaviour.

Human rights sanctions, too, must consider this standard formula of sanctions.

This is not the same as saying that gross human rights violations should be forgiven, but if sanctions are to work as a policy tool to cease human rights abuses, then they must have an exit strategy attached to them. Of course, human rights abusers can separately face criminal charges – either in their own country or in international tribunals – and an expectation of proper criminal proceedings might in fact be one of the criteria attached to sanctions being lifted.

Criteria Matters

The establishment of clear criteria matters both in terms of how individuals are placed on a human rights sanctions list, and also how they can be removed again.

Individuals may be designated due to their position within a government or membership of a certain group involved in human rights abuses and are therefore deemed accountable as a result of their position. Under such criteria, individuals will need to be removed from the sanctions list once they are no longer in that position. In this case the criteria – and evidence needed – for a designation is clear, however it is of course up to the UK to decide which governments or groups are targeted in the first place.

Individuals can also be listed due to their own direct behaviour, rather than the behaviour of the group they belong to. Under such criteria, the criteria for lifting is a demonstrated change in behaviour, something that can be difficult for individuals to prove without clear evidence of why they were placed on the list in the first place.

It is important to set lifting criteria at the right level. If the criteria are too low, it is possible that actors can appear to have met them only to carry on or revert to their previous activity. If the criteria are too high, there is a risk that targeted individuals will feel little motivation to change behaviour and the criteria might be counterproductive to what the sanctions regime is trying to achieve.

In summary, while the UK’s human rights sanctions regime pursues a good and noble cause on paper, there are issues attached to the use of these sanctions in practice which must be resolved. Otherwise, the use of these sanctions risk being undermined by accusations of uneven application and double standards and may not achieve a change in the behaviour of targets.

The UK must pursue an approach to human rights sanctions that has clear objectives, is applied universally regardless of who is violating human rights, and is underpinned by clear criteria throughout the sanctions process.

Read the first Occasional Paper from RUSI’s Task Force on the Future of UK Sanctions Policy, ‘Designing Sanctions After Brexit: Recommendations on the Future of UK Sanctions Policy’.

The views expressed in this Commentary are the author's, and do not represent those of RUSI or any other institution.

BANNER IMAGE: Courtesy of Adrian Grycuk/Wikimedia Commons

Author

Emil Dall
Senior Research Fellow, Centre for Financial Crime & Security Studies

Emil Dall is a Research Fellow in the Centre for Financial Crime & Security Studies at RUSI, where his research focuses on sanctions... read more

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