Why the Magnitsky Act is important for Australia

December 11, 2018 by Michael Danby
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Most Australians were unfamiliar with Ukraine prior to the missile shooting down Malaysian Airlines MH17.

Sergei Magnitsky

38 Australians amongst the 298 passengers were murdered when a Russian mobile rocket launcher destroyed this civilian airliner flying over Eastern Ukraine.

The Joint Investigative Team, in which Australia participated, reported in May that the Buk-7 from the 53rdBrigade of the Russian army crossed into disputed Ukraine from the Russian Federation. Both then and now Russia and its leader Vladimir Putin have displayed a cruel indifference to the Russian Federation’s role in causing these tragic and unnecessary deaths of citizens from around the world, including the 38 Australians.

The United States, the United Kingdom and Canada have responded to Russia’s increasing international aggression with a democratic, legislative response called the Magnitsky legislation. These laws link Russian and other authoritarian countries’ corruption and human rights abuses with bars on visa entry, the moving of funds and receiving family education.  Partially as a response to Russia’s insolent indifference to the murder of our Australians by their army, I am moving an Australian version of the Global Magnitsky Act as a Private Member’s Bill next Monday in the House of Representatives.

Magnitsky Acts are becoming a new weapon in the West to sanction government officials and others connected with authoritarian governments who engage in serious human rights abuses and corruption in their own countries.

International lawyer Geoffrey Robertson argues, “Magnitsky laws are national laws that allow a government to apply targeted sanctions on any individual involved in human rights violations, from senior officials to low-level officers, from judges to policemen and even non-government actors such as CEOs and contractors. They take the form of asset freezes for funds held in banks and other financial institutions, as well as bans on visas for entering the country.” (Australian Quarterly Oct-Dec 2018).

The first “Magnitsky Act” was passed in the U.S. during the Obama presidency in 2012.  It was specifically aimed at Russians who engaged in serious human rights violations and corruption.

It provided for the U.S President to designate perpetrators who would be placed on the “Magnitsky List” and then be subject to sanctions, such as them travelling to the U.S. and freezing their assets in the U.S.

Magnitsky Acts owe their genesis to two courageous men – Sergei Magnitsky and Bill Browder. Sergei Magnitsky was a Russian lawyer who acted for Bill Browder’s Hermitage Capital Management fund in Russia. Magnitsky discovered that some $230 million paid by Browder’s company in taxes to the Russian government had been fraudulently misappropriated by Russian government officials working together with organised crime.

Instead of the Russian government going after the corrupt officials, the government pursued Magnitsky and Browder. Browder escaped butMagnitsky was arrested, jailed and died in prison pending trial.

The idea of pushing back on authoritarian regimes like Russia was synthesized by Browder, “Criminal justice is based on jurisdiction: One cannot prosecute someone in New York for a murder committed in Moscow. As I thought about it, the murder of Sergei Magnitsky was done to cover up the theft of $230 million from the Russian Treasury. I knew the people that stole that money wouldn’t keep it in Russia. As easily as they stole the money, it could be stolen from them. These people keep their ill-gotten gains in the West, where property rights and the rule of law exist. This led to the idea of freezing their assets and banning their visa here in the West.

Michael Danby presents the bill

Following democratic pressure to extend the Magnitsky laws, the United States passed a “Global Magnitsky Act” in 2016 called the Global Magnitsky Human Rights Accountability Act, which allowed corrupt abusers in any country to be placed on the “Magnitsky List” and be subject to targeted sanctions.

Other countries, such as the United Kingdom, Canada, Estonia, Latvia and Lithuania have passed their versions of Global Magnitsky Acts. Australia should adopt its own “Global Magnitsky Act”, so that Australia cannot be considered a safe haven for corrupt human rights violators from overseas. I have drafted a Private Member’s Bill which will be submitted to Parliament next week. It allows for regulations to be passed that would impose sanctions on such violators preventing them from travelling to, trading with, or holding assets in, Australia.

In addition to making these violators international pariahs and preventing them from enjoying their ill-gotten gains and status in the West, the threat of Magnitsky sanctions can be a significant deterrent to those who may be contemplating conduct that is corrupt or in violation of international human rights norms.

The Chinese Uygur human rights’ activist, Rebiya Kadeer, made this point very clearly in her statement in the U.S. House of Representatives subcommittee on 29th April 2015 where she said –

“If this [Global Magnitsky Act] becomes law, it will have a profound ripple effect, because mere listing of some of the most well-known human rights violators in authoritarian states like China will send a powerful message to low ranking officials that their criminal actions will not be immune to international scrutiny, condemnation and consequences.

So, for instance, a future Australian Magnitsky Act could ban Xinjiang Communist Party viceroy Chen Quanguowith his monstrous plan to incarcerate 1 million Uygurs in concentration camps. Enacting a Global Magnitsky Act will protect fundamental human rights of the oppressed and save the lives of people, including in Burma, Dafur, North Korea or Syria.

 It is now time that Australia joined this growing international movement and adopted its own Global Magnitsky law.  The more countries that adopt such laws,  the more jurisdictions that can potentially be made out of bounds to individuals involved in shooting down planes over the Ukraine or murdering journalists inside embassies or corralling and abusing Uyghurs in concentration camps or expelling and killing Rohingyas or mass killings in other places like Darfur and Srebrenica and so on and so on.  Vladimir Putin hates these laws, not so much because they could potentially target him directly (something unlikely given international relationships) but because they could be used to target his cronies and helpers, such as the jailers and corrupt officials responsible for Sergei Magnitsky’s death, and thus make them more unwilling to do his bidding.

Additionally, for countries that have Magnitsky Acts, the ability to ban foreign human rights violators and often corrupt from visiting and having dealings, investments and access to a country’s financial system, means that a country is better armed to protect the security of its economy and its citizens from the actions of the violators.

As Geoffrey Robertson argues in his plea for Australian Magnitsky legislation, “If all advanced democracies….adopted such laws and pooled information and target lists, the pleasures available to the cruel and corrupt would be considerably diminished.”

The Hon. Michael Danby MHR was Parliamentary Secretary for the Arts in the Gillard Government. He plans to retire at the next election.

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