Trump Administration May Use Global Magnitsky Act Human Rights Authority to Advance Foreign Policy Goals

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Embedded in the 3,000-page National Defense Authorization Act, passed by both houses of Congress by veto-proof majorities earlier this month and sent to the President on December 14, the Global Magnitsky Human Rights Accountability Act provides new authority for the executive branch to impose visa bans or revocations, or sanctions (including property seizures) on individuals accused of committing human rights violations or engaging in gross corruption.

As Sarah A. Altshuller has written on law firm Foley Hoag’s Corporate Social Responsibility and the Law blog, The Act may be part of a paradigm shift in the way U.S. sanctions law is utilized. Unlike most U.S. sanctions regimes that target issues in specific countries by sanctioning entire governments or groups of individuals and entities, the Act would apply sanction to individuals anywhere in the world who have engaged in activities deemed to violate certain international human rights standards. The Act could offer an expanded scope to the Treasury Department’s Office of Foreign Assets Control (“OFAC”) in promoting U.S. policies globally, much as the 2015 sanctions on malicious cybersecurity undertakings expanded the group of activities, including drug trafficking and terrorism, that are global targets of OFAC sanctions. Under the terms of the Act, the State Department’s Bureau of Democracy, Human Rights, and Labor (“DRL”) would be given authority to determine who is placed on the sanctions list, which will presumably be implemented by OFAC. In making these determinations, the Administration is required to consider “credible information obtained by other countries and nongovernmental organizations that monitor violations of human rights” as well as information provided by certain committees of Congress.”

The measure has been lauded by Alexandra Schmitt, advocacy coordinator for Human Rights Watch:

The Global Magnitsky Human Rights Accountability Act fills an important gap in the US sanctions toolkit by preserving the flexibility to target individual human rights abusers without punishing entire countries. This new tool will allow the US to more easily go after known abusers in a smart, targeted way without interrupting larger bilateral engagement…

The original Magnitsky Act applied solely to Russia and was heavily opposed by Secretary of State Hillary Clinton and the Obama Administration, as it was thought this legislation might thwart the then-intended reset of relations with Russia. It provoked a vociferous response from Russian President Vladimir Putin, who continues to oppose the measure and its expansion.

Implementation Paramount: What Will Trump Do?

How widely or narrowly the provisions will be interpreted is a matter for the executive branch to determine. And it is ultimately within the President’s discretion to decide whether or not to impose sanctions. The ultimate impact of this statute will depend on how aggressively the incoming administration casts its implementation net. Schmitt suggests– bit overoptimistically, in my opinion– that this could be a bipartisan priority:

The strong endorsement by senators on both sides of the aisle sends a vital message to the incoming administration that accountability for human rights abuses is a bipartisan priority and may provide an opportunity for future collaboration if president-elect Donald Trump is willing to make good on what could be a rare opportunity.

But this does not mean that the Trump administration would be blind to possibilities the measure opens up. In particular, the administration might choose to target human rights violations not necessarily out of concern for these issues per se, but as a means to pursue a wider foreign policy agenda. Again to quote Schmitt:

One place to start could be China. Trump has written in his book in 2000 that he is “unwilling to shrug off the mistreatment of China’s citizens by their own government” and that Chinese leaders are keen to overlook “the human rights situation.” A new Human Rights Watch report documents a raft of abuses by Chinese Communist Party authorities who oversee a secretive detention system, including torture and deaths, in the name of combating corruption. Trump could demonstrate his willingness to address this concern by directing his secretary of state to examine possible senior Chinese officials who could be sanctioned under the Magnitsky law.

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