The Devil is in the Details

Dr. Clara Portela, international sanction expert, in an interview with Susanne Berger

Dr Clara Portela

Dr Clara Portela holds a PhD from the European University Institute in Florence and an MA from the Free University of Berlin. She is currently a Professor of Political Science at the University of Valencia (Spain), having previously served in a similar role at Singapore Management University (Singapore). An expert on international sanctions, she has participated in consultative processes convened by the United Nations, the European External Action Service, the European Parliament, the European Commission, the UK House of Lords, the Dutch Ministry of Foreign Affairs, the UK Foreign and Commonwealth Office, the Asia-Europe Foundation, and private sector associations.

Background

At the center of the current international sanctions debate is the question how governments most effectively punish human rights violations and other breaches of international norms and rules. One of the greatest challenges remains to stop human rights violations as they are occurring, or to prevent them altogether. Relatively new sanctions regimes, like so-called targeted or smart sanctions, are considered to be more effective because they target specific human rights violators quickly and directly. In doing so, they allegedly provide an important deterrent effect, which means they supposedly prevent new human rights violations from occurring.

The most well-known example of a targeted sanctions regime for human rights is the Magnitsky Act, named after the Russian accountant Sergei Magnitsky who was jailed and brutally murdered in Russia in 2009, after exposing a massive tax fraud scheme committed against his employer, the British investment company Hermitage Capital Management, by Russian authorities and the Russian mob.

The legislation was first proposed by the British-American businessman William Browder, owner of Hermitage Capital, who has led a tireless campaign to bring Magnitsky’s murderers to justice. Browder argues that the global expansion of the law will provide governments and human rights advocates with important new tools in their fight to hold human right violators accountable.

The Magnitsky Act imposes two types of sanctions:  Travel and visa bans as well as asset freezes. The original Magnitsky Act was passed in the US in 2012, punishing Russian officials implicated in Magnitsky’s murder, including (Russian) individuals profiting from this crime. Since 2016, the law applies globally, allowing the US government to impose sanctions against human rights violators regardless where these crimes occur.  Other countries that have adopted similar legislation – a full or partial Magnitsky Act – are Canada, the U.K., Estonia, Latvia and Lithuania. Aside from the EU, Australia, Moldova and Ukraine are considering adoption of the same.

On December 10, 2018, the 70th anniversary of the Universal Declaration of Human Rights, the European Ministers of Foreign Affairs unanimously approved a proposal by the Dutch government for an EU-wide Global Human Rights Sanctions Regime. At the end of 2019, the European External Action Service (the EU’s diplomatic body) decided to launch the preparatory work for the adoption of the new legislation. The EU member states are currently finalizing the adoption of such legislation.

“The creation of an EU human rights sanction regime or a Magnitksy-type list requires extra clarity regarding what exactly is the objective of the sanctions regime. What do countries want to do when they create these multi-national lists that highlight human rights violations? Do they want the individuals to change behavior and to stop the abuses? Do they want to bring the individuals to justice? Or do they simply want to deny the targets access to specific financial resources? That is the question – it is not exactly clear what one wants to accomplish with this list.”

Interview

S.B. Dr. Portela, let me begin with the most central question: Does the European Union truly need an additional human rights sanctions regime and how does it differ from the Global Magnitsky Act that was introduced in 2016 in the United States? Because the EU already regularly imposes sanctions for human right abuses.

C.P. The instrument that is employed – meaning the use of targeted sanctions – is indeed the same, because you impose a visa ban or an asset freeze, blocking the property of a number of individuals, blocking transactions with these individuals and sometimes also companies. The only difference is that until recently, the EU imposed these sorts of measures on a group of individuals that is linked to a specific political situation in a country – for example, the leadership of Belarus or Nicaragua. The idea is that this group of individuals is in power and you want to condemn their policies and you want to promote some sort of change, some change in the country. So, the moment these individuals introduce changes to the policies or a new government takes over, these people will not be black listed anymore, because there will be no more reason for them to be on the black list. But the main objective is not to identify them as egregious violators of human rights.  The intention is really to promote some political change, some movement in the political landscape of Minsk or Managua.

Now, with the planned global sanctions regime, the situation is different, because it is meant to be a list for human rights violations. So, it is detached from a specific country. This means that the intention is not as straightforward as it used to be with country crises.

In other words, the creation of a new global human rights sanction regime actually requires extra clarity regarding what exactly is the objective of the sanctions regime. What do countries want to do when they create these multi-national lists that highlight the human rights violations? Do they want to reverse the violation? Do they want these individuals to be brought to justice? Do they want the countries where these individuals are operating to bring them to justice? Or do they want the individuals to change behavior and to stop perpetrating human rights abuses? That is the question – it is not exactly clear what one want to achieve with this list. Perhaps you want to just have a list featuring the most egregious violations of human rights worldwide, in order to make it clear how strongly you condemn these individuals, that you declare them personae non gratae, but without having any real expectation that anything will change, except for showcasing the atrocities they have committed.

S.B. But isn’t the central idea still to punish these individuals, in some form at least, through asset freezes, or visa bans? And by publicly singling out these perpetrators of serious crimes, to help prevent future human rights violations?

C.P. Well, this could be the case, one could see the lists as punishment and this could also have a deterrent effect in the future. It is possible that in some cases, the issuers of the list want the individuals to change behavior. But it really depends on the situation. In the case of Belarus, for example, the moment you black list various individuals, you are sending the message that you want them to change something. Either to relinquish power, to organize new elections or to stop repression, or to liberalize, to open the economy.  The idea is also that over time, if they comply, they will be de-listed, once the violations no longer prevail. But one wonders with a list like the Global Magnitsky-type list, is there any possibility that the persons will be de-listed at all?  Or have these individuals committed violations of such gravity that irrespective of what they do – even if they stop the violations – they will remain on the list?

S.B. So, one important open question is, how can you get off the list, once you are on it?

C.P. If you can get off the list at all! If you are responsible for genocidal acts, such as allegedly in the case of the Myanmar military in the operations against the Rohingya: Is it enough to stop this oppression? If you stop these operations, and never do it again, then are you going to be taken off the list? Perhaps that possibility does not even exist. I am not saying that there is anything right or wrong about a global human rights sanctions list or this approach; what I am trying to emphasize is that it raises important questions, just because with such a list the instrument of targeted sanctions changes its [fundamental] nature .

S.B. There clearly is an important psychological aspect involved in the sanctions process. 

C.P. Exactly. Of course you want to stigmatize the target, but I think that the imposition of sanctions is also a way of building the identity of the sender [of the sanctions]. In the sense that you are positioning yourself as being completely in opposition to a specific violation. And many of the target countries are aid recipients, so you do not want to be seen as funding a regime that is murderous, that is genocidal, that is misbehaving. You do not want to be seen as being on good terms with these sorts of regimes.

S.B. You mean that public stigma or shame can sometimes have a very powerful effect, even if the sanction process itself does not bring about the desired change.

C.P. Certainly. Actually, most countries feel deeply offended about being the target of sanctions. Particularly those countries that have aspirations of international prestige, aspirations of regional leadership, they feel particularly offended. And, as I just mentioned, there is a similar psychological effect also for those who impose the sanctions. One should not always assume that one of the reasons why sanctions are imposed is because you want the target to change behavior. Sometimes you know full well that the target is not going to change behavior, no matter what you do. At the same time, being an entity that strongly condemns a specific behavior, you do not want to be contributing to it. You do not want to be seen as condoning it. You know that the society you represent is reluctant to be an accomplice in this. All this is just to say that as a sender country you might not even have the expectation that you are going to change things in the sense of bringing an end to the violation. But you will impose sanctions all the same.

S.B. I understand what you are saying. But sometimes there can be a problem of public perception of how sanctions actually work, how they are enforced; meaning the full range of their effects, including their unintended consequences. 

C.P. The public perception of sanctions is indeed fraught with misconceptions. One of them concerns the impact of sanctions. People associate sanctions with apocalyptic images of extreme deprivation among civilians. By contrast, the impact of EU sanctions on the civilian population is often minimal.  Paradoxically, while targeted sanctions were largely devised to increase public acceptance of the measures, the negative perception associated with them persists. Responsibility lies with sender authorities for not taking sufficient care to explain their policies to the public, as well as with parliaments for failing to scrutinize more closely sanctions policies, including the questioning blacklisting choices and omissions. A public information campaign could do much to correct this.   

S.B. Coming back to the Global Magnitsky Act – its originator, William Browder, has argued that Magnitsky Act sanctions are like highly specified cancer drugs, targeting individuals, avoiding punishing the general population. Do you agree with this assessment?

C.P. I certainly do, because within targeted sanctions, we also have different types of measures. Some of them are super-targeted – they basically consist of blacklisting individuals with names and surnames. Then there are other sanctions that are also considered to be targeted, but they are much less discriminating, for example blacklisting a central bank, or harbors, or banning investments or banning trading commodities. So, these are issues that affect many more people. They are not just limited to specific elites. The advantage of a global human rights sanctions regime is that it does not affect commodities, it affects exclusively individuals, and to some extent also entities that are directly involved in a violation. I would describe a worldwide human rights sanctions list as a culmination, the crowning of targeted sanctions, because here the link to the [individual] countries is completely severed.  Now the only thing that matters is the violation and the individual that has perpetrated it. It is decoupled from political crisis.

The only thing that concerns me is that if you change your approach in such a fundamental way that you are no longer addressing these specific individuals for human rights violations in the context of a specific political crisis, like, for example, in Belarus, Nicaragua or Venezuela – implying that once the current crisis is over, the blacklisting will be over too – then you have to take extra care to make it very clear what exactly you are trying to achieve. Again, do you want these people to change behavior? Are you expecting them to stop their [criminal] behavior, or are they to stay on the list, no matter what they do in the future, because of the serious violations they committed? Do you want them to be brought to justice, and by whom? Do you want the International Criminal Court to indict them? Do you want the national judicial systems to indict them? What exactly are you expecting to happen? And I am not saying one thing would be right and another thing would be wrong. I am just saying that it is very important in this context to specify what the new human rights sanctions regime is all about.

S.B. Is this then the greatest hurdle the planned sanctions regime has to clear within the EU before it can be adopted? Including the need to better specify the so-called listing criteria, that determine who will be included in the blacklisting?

C.P. The key challenge lies with the formulation of the designation criteria: These must be compliant with due process standards to withstand judicial scrutiny while serving the purposes of the sanction regime. The listing criteria are definitely important. The definition of the criteria that give rise to the various listings can be narrower or broader and in the case of Magnitsky-type legislation, they of course have to be very well defined. But the issue that I am raising is slightly different. It is not about who gets listed and for what reason. The fundamental question is what are we trying to achieve with this listing? Whom are we expecting to take action?

S.B. From your perspective, has the recent attack on Russian dissident Alexei Navalny increased the likelihood that the EU will adopt a global human rights sanctions regime?  What other key challenges remain?

C.P. The preparation of this legislation is proceeding at a much slower pace than other sanctions regimes the EU has agreed on recently; one of them addressing the use of chemical weapons, and the other one on cyber security. These two regimes came into being much faster. This slower pace illustrates that there are some difficulties with it. The devil really is in the detail. With a meaningful description of objectives, with a meaningful list of criteria it could become a useful instrument. The perpetrators of the Navalny poisoning can be listed under the EU sanctions regime against chemical weapons attacks, which is already in place. This obviates the need to include them in the future EU human rights sanctions regime.

The question is obviously whether the regime will be designed intelligently enough, whether it will be possible to prevent abuses of this sanction regime. One can clearly see the risk that some really egregious human rights violators are listed alongside perpetrators of much lesser abuses. In between, there will be a grey area in which hardly anyone might feature. So, there is a clear risk of inconsistency later on. This will open the door to allegations of “double-standards”, already frequent in the sanctions domain. And coming up with an endless list of egregious and not so egregious human rights violations,  that do not follow any purpose, other than simply to highlight them, this is a sanctions regime that might harm the credibility of the EU as a defender of human rights. The question is whether the EU will find a way of utilizing these lists in order to improve the human rights situations somewhere or not? And this is obviously a very big open question.

S.B. How can these potential inconsistencies, as you call them, be addressed more effectively?

C.P. By narrowing the scope of the regime, and by adopting listings regarding cases that are well documented and rely on robust evidence. In order to narrow the scope of the regime, a possible solution is to disaggregate the sanctions regime into two sections: one dealing with breaches of international humanitarian law and a second one addressing human rights violations linked to large-scale transnational corruption. This would limit the number of eligible listings. In particular, the formulation of designation criteria targeting corruption will enable the EU to address a sort of human rights violation that is not part of its routine sanctions practice: those that are connected to transnational illicit activities connected to grand corruption schemes, and that imply severe environmental damage in addition to systematic human rights violations. I am thinking of practices of land-grabbing and large-scale deforestation in places like Sub-Saharan Africa or Southeast Asia. These breaches are very harmful, yet they are not linked to the situations of democratic backsliding the EU normally responds to with sanctions. Other than recognising the interconnection between grand corruption and human rights violations, the inclusion of grand corruption among designation criteria will enable the EU to list entries already targeted by the US and Canada which have anti-corruption sanctions regimes in place, thereby facilitating coherence with its allies.