Why Aus­tralia needs a Mag­nit­sky Law

AQ: Australian Quarterly - - FRONT PAGE - IN­CLUD­ING: GE­OF­FREY ROBERT­SON QC

The Helsinki Sum­mit be­tween US Pres­i­dent Trump and Rus­sian Pres­i­dent Vladimir Putin rep­re­sented a nadir in US for­eign pol­icy, with Trump pre­fer­ring to be­lieve Putin rather than his own in­tel­li­gence ser­vices over claims Rus­sia sub­verted the 2016 US Gen­eral Elec­tion. As if this act of diplo­matic hu­mil­i­a­tion wasn’t bad enough, Putin also sin­gled out an Amer­i­can-british hu­man rights ac­tivist he asked be sur­ren­dered to Rus­sian au­thor­i­ties, in re­turn for al­low­ing the FBI to in­ter­ro­gate those Rus­sians un­der in­dict­ment by Spe­cial Coun­sel Robert Mueller.

What could pos­si­bly have pro­voked a Rus­sian Pres­i­dent to sin­gle out an in­di­vid­ual dur­ing such a high-level diplo­matic meet­ing? The same Pres­i­dent who has been ac­cused of green-light­ing the poi­son­ing of a for­mer Rus­sian dou­ble agent on British sov­er­eign soil, of ig­nor­ing in­ter­na­tional con­dem­na­tion for his an­nex­ing of Crimea, and who has shown a bla­tant dis­re­gard for ac­cept­ing any cul­pa­bil­ity for the shoot­ing down of flight MH17?

Mag­nit­sky laws are na­tional, not in­ter­na­tional, laws passed by sov­er­eign par­lia­ments to al­low the govern­ment to ap­ply tar­geted sanc­tions on any in­di­vid­ual in­volved in a hu­man rights vi­o­la­tion.

The an­swer lies in the global Mag­nit­sky move­ment that has its gen­e­sis at the turn of the cen­tury in Putin's Rus­sia, at a time when Putin was ce­ment­ing his power. The global Mag­nit­sky move­ment – or­ches­trated by Bill Brow­der, Amer­i­can fi­nancier and au­thor of the book Red No­tice – is giv­ing hu­man rights the teeth to bite, rather than gnash, by pre­vent­ing those peo­ple ac­cused of hu­man rights abuses and se­ri­ous acts of cor­rup­tion from en­joy­ing the fruits of their ill-got­ten gains. Its first tar­gets have been Putin's cronies and, as an early mea­sure of the move­ment's suc­cess, Putin's ha­tred of Brow­der was ev­i­dent as he used the Helsinki Sum­mit to call for the Amer­i­can's ex­tra­di­tion.

Mag­nit­sky laws are na­tional, not in­ter­na­tional, laws passed by sov­er­eign par­lia­ments to al­low the govern­ment to ap­ply tar­geted sanc­tions on any in­di­vid­ual in­volved in a hu­man rights vi­o­la­tion, from se­nior of­fi­cials to lowlevel of­fi­cers, from judges to po­lice­men, and even non-govern­ment ac­tors such as CEOS and con­trac­tors. These sanc­tions 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. Putin sought Trump's help to si­lence Brow­der be­cause Mag­nit­sky laws are be­ing passed in Western coun­tries around the world (al­though not yet in Aus­tralia) – and are be­gin­ning to en­gen­der

fear amongst Rus­sian prof­i­teers from cor­rup­tion and hu­man rights abuses.

Bill Brow­der is used to such at­ten­tion: “in my mind, the fact that Putin keeps bring­ing up my name pub­licly shows how rat­tled he is by the Mag­nit­sky Act and how pow­er­ful a tool it is. It is very un­usual for Putin to ac­knowl­edge his en­e­mies, but in my case he started the per­sonal at­tacks shortly af­ter the US Mag­nit­sky Act was passed and has con­tin­ued re­peat­edly af­ter the pas­sage of each new coun­try's Mag­nit­sky Act”.

This is a bad time for in­ter­na­tional crim­i­nal law: a pole-axed United Na­tions Se­cu­rity Coun­cil will not send for trial in the Hague any hu­man rights vi­o­la­tor (even As­sad) who has “big 5” sup­port, Trump in Helsinki did not even bother to re­quest the ar­rest of the Polo­nium and Novi­chok poi­son­ers or the sol­diers who shot down MH17 (with the loss of 38 Aus­tralian lives) or to ques­tion the in­va­sion of Ukraine. At a time when in­ter­na­tional crim­i­nal law is silent (ex­cept in re­spect of friend­less states and their states­men) Mag­nit­sky laws show how na­tional law can step up to the plate.

The Aus­tralian Govern­ment boasts that it is a cham­pion of hu­man rights and anti-cor­rup­tion in the Asia-pa­cific, but if it is se­ri­ous about its role as a hu­man rights guardian in the re­gion, then it is time to put a Mag­nit­sky law on the Com­mon­wealth statute book.

The Global Mag­nit­sky Move­ment

Sergei Mag­nit­sky was a lawyer in Mos­cow who blew the whis­tle on high-level Rus­sian of­fi­cials who had scammed com­pa­nies owned by his client, Bill Brow­der, to the tune of USD $230 mil­lion. For this whistle­blow­ing, Mag­nit­sky was im­me­di­ately ar­rested by the po­lice he had com­plained about, and thrown into prison where tame judges or­dered him to re­main for a year with­out bail, de­spite se­ri­ous ill­ness. He was tor­tured and even­tu­ally died at the hands of mid­dle-rank­ing of­fi­cials of Putin's cor­rupt State ap­pa­ra­tus, of­fi­cials who send the spoils of their prof­i­teer­ing abroad to banks in Switzer­land and Cyprus.

Bill Brow­der (iron­i­cally, the grand­son of Earl Brow­der, the fa­mous leader of the Com­mu­nist party in the US be­tween the world wars) has since de­voted his as­sets and his time to pro­mot­ing lo­cal laws that pun­ish hu­man rights abusers, named in mem­ory of Mag­nit­sky, his lawyer killed for his loy­alty to both his coun­try and his client. His first suc­cess came in 2012, when Obama ap­proved the Sergei Mag­nit­sky Rule of Law Ac­count­abil­ity Act,

Sergei Mag­nit­sky was a lawyer in Mos­cow who blew the whis­tle on high-level Rus­sian of­fi­cials who had scammed com­pa­nies… He was tor­tured and even­tu­ally died.

which froze the as­sets and pro­hib­ited visas to 18 Rus­sian of­fi­cials (in­clud­ing 2 judges) who had been in­volved in Mag­nit­sky's in­hu­mane treat­ment.

In 2016 this law was widened by The Global Mag­nit­sky Hu­man Rights Ac­count­abil­ity Act, which ap­plies world­wide and not just to Rus­sia, as well as to those who have en­gaged in se­ri­ous cor­rupt prac­tices. Its as­set freezes and visa bans have con­tin­ued un­der the Trump ad­min­is­tra­tion, sanc­tion­ing 58 peo­ple last year.

As Brow­der says, “the Global Mag­nit­sky Act ap­pears to be a very pow­er­ful tool be­cause dic­ta­tors and their gov­ern­ments have tra­di­tion­ally never faced any con­se­quences for their bad deeds, but all of a sud­den find them­selves fi­nan­cially iso­lated and pub­licly shamed”.

The virtue of Mag­nit­sky laws is that they are ex­er­cises of State sovereignty, and do not rely on in­ter­na­tional law, treaties or ar­range­ments.

The best way for the UK to re­duce Putin's sup­port from oli­garch friends is to stop them en­rolling their chil­dren at Eton.

The virtue of Mag­nit­sky laws is that they are ex­er­cises of State sovereignty, and do not rely on in­ter­na­tional law, treaties or ar­range­ments. In 2017 Canada passed a more ad­vanced ver­sion ( The Jus­tice for Vic­tims of Cor­rupt For­eign Of­fi­cials Act) that ad­di­tion­ally placed re­port­ing obli­ga­tions on banks and other fi­nan­cial in­sti­tu­tions, and pro­hib­ited all deal­ings by Cana­dian com­pa­nies with listed in­di­vid­u­als, on pain of pros­e­cu­tion. Eu­ro­pean coun­tries are fol­low­ing the US and Cana­dian lead. The UK – af­ter the Sal­is­bury poi­son­ing – amended its Sanc­tions Bill to en­able the re­cov­ery of as­sets held in Bri­tain by for­eign hu­man rights abusers.

Why are Mag­nit­sky laws likely to be ef­fec­tive? Sim­ply, be­cause the for­eign abusers they tar­get do not, for the most part, want to keep their prof­its at home. They want to stash their cash in safe Western banks, use the money to hol­i­day and play the casi­nos in the West, and to send their chil­dren to pri­vate schools and uni­ver­si­ties and their par­ents to the bet­ter-equipped hos­pi­tals in Europe and the USA. As Boris Nemtsov, Putin's coura­geous po­lit­i­cal op­po­nent pointed out be­fore his as­sas­si­na­tion in 2015, the best way for the UK to re­duce Putin's sup­port from oli­garch friends is to stop them en­rolling their chil­dren at Eton.

Mag­nit­sky laws do not at this stage go that far, but cam­paign­ers be­lieve they should. Of course, nor­mally we try not to visit the sins of the fa­thers upon their chil­dren, but in the case of cor­rupt and bru­tal of­fi­cials, who have com­mit­ted crim­i­nal acts in or­der to ben­e­fit their fam­i­lies, bar­ring their chil­dren and their par­ents as well from en­ter­ing our coun­tries seems fair enough. A Mag­nit­sky law can­not af­fect heads of state or diplo­mats who en­joy im­mu­nity, but it may de­ter the ‘train drivers to Auschwitz' who are tempted to use their prof­its from cor­rup­tion and hu­man rights abuses to pay for ac­cess to Western hos­pi­tals and schools that are bet­ter than in their home coun­ties, where these ameni­ties have been down­graded as a re­sult of their own cor­rup­tion.

Putin's call at Helsinki for Bill Brow­der's head be­trayed his fear of the Mag­nit­sky move­ment. When the first law was in­tro­duced by Obama in 2012, Putin's puerile re­sponse was to stop Amer­i­can fam­i­lies from adopt­ing Rus­sian or­phans. Then, more log­i­cally, he in­tro­duced his own Mag­nit­sky law, which tar­geted Amer­i­can of­fi­cials in­volved in Guan­tanamo Bay, al­though they had no as­sets in Rus­sian banks and Dick Cheney is un­likely to want to hol­i­day in the Krem­lin.

Should Aus­tralia have a Mag­nit­sky law?

Aus­tralia is a fi­nan­cial hub in the Asia-pa­cific re­gion, en­vied for the sta­bil­ity of our banks and the qual­ity of our hos­pi­tals and schools. Our cul­tural and fi­nan­cial in­fra­struc­tures should not be made avail­able to those who abuse hu­man rights, whether they are mass mur­der­ers of Tamils or Ro­hingya, or cor­rupt Malaysian politi­cians or Chi­nese of­fi­cials in­volved in op­press­ing democ­racy ad­vo­cates, hu­man rights lawyers and Falun Gong mem­bers.

“It's cru­cial that there aren't huge geo­graphic gaps in the leg­is­la­tion”, Brow­der says. “Right now, the US, UK and Canada have Mag­nit­sky Acts among English speak­ing coun­tries, but Aus­tralia doesn't. If that con­tin­ues, it will cre­ate an in­cen­tive for bad ac­tors to keep their money in Aus­tralia to avoid sanc­tions, which would be an un­for­tu­nate out­come”.

Aus­tralia should be part of a global move­ment in­sist­ing that for­eign crooks stay in the coun­try their cor­rup­tion has ema­ci­ated. Some of our near neigh­bours suf­fer from top-level cor­rup­tion (see, un­til re­cently, the Malaysian Prime Min­is­ter). Aus­tralia, like any other sov­er­eign na­tion, has power to sanc­tion for­eign mis­cre­ants.

The Char­ter of the United Na­tions Act 1945 (Cth), a Doc Evatt ini­tia­tive back in 1945, gives force to any sanc­tion im­posed by the UN Se­cu­rity Coun­cil, and is ap­plied au­to­mat­i­cally to those it des­ig­nates – usu­ally for sup­ply­ing or fi­nanc­ing arms to pariah regimes. But it only ap­plies to the limited num­ber of per­sons listed by the U.N.

A wider sanc­tions regime is pro­vided by the Au­tonomous Sanc­tions Act of 2011 (Cth) (the ASA), which al­lows the Min­is­ter for For­eign Af­fairs to im­pose sanc­tions (in­clud­ing tar­geted fi­nan­cial sanc­tions) on for­eign in­di­vid­u­als ‘in sit­u­a­tions of in­ter­na­tional con­cern.' It does not ex­pressly per­mit sanc­tions to be im­posed for cases of se­ri­ous cor­rup­tion, like the Global Mag­nit­sky Act in the US. It does al­low travel bans and money freezes in re­spect of sit­u­a­tions of in­ter­na­tional con­cern, which can in­clude the “grave re­pres­sion of hu­man rights.”

How­ever, in or­der to sanc­tion an in­di­vid­ual, the Min­is­ter first needs to amend the ASA reg­u­la­tions by way of

The US, UK and Canada have Mag­nit­sky Acts among English speak­ing coun­tries, but Aus­tralia doesn't. If that con­tin­ues, it will cre­ate an in­cen­tive for bad ac­tors to keep their money in Aus­tralia to avoid sanc­tions.

a leg­isla­tive in­stru­ment, iden­ti­fy­ing the tar­get coun­try and the rea­sons for its na­tional's des­ig­na­tion, which might in­clude hu­man rights vi­o­la­tions but not cor­rup­tion. The Min­is­ter must then pass an­other leg­is­la­ture in­stru­ment if they de­cides to des­ig­nate the par­tic­u­lar in­di­vid­ual un­der the ASA reg­u­la­tions. This pro­ce­dure is both clumsy and repetitive.

Aus­tralia's record in us­ing these sanc­tions is pa­thetic un­der Min­is­ters from both par­ties. For ex­am­ple, Julie Bishop only named two coun­tries whose na­tion­als she was pre­pared to sanc­tion for hu­man rights abuses – Syria and Zim­babwe, and Aus­tralia has only im­posed sanc­tions on sev­en­teen in­di­vid­u­als, all of them Syr­ian com­man­ders or in­tel­li­gence of­fi­cers in the As­sad regime.

So at present the ASA can­not be used to tar­get in­di­vid­u­als in­volved in the shoot­ing down of MH17 or in hu­man rights abuses oc­cur­ring in the Asia-Pa­cific, such as the ex­tra-ju­di­cial killings in the Philip­pines or the high-level cor­rup­tion in Malaysia. In other words the ASA is only be­ing pointed to­wards easy tar­gets with no likely con­nec­tion to Aus­tralia. It is not gen­uinely be­ing used as a tool to com­bat hu­man rights abuse.

The ASA is not fit for pur­pose, if its pur­pose is to de­ter cor­rup­tion (which it does not ex­pressly tackle) or de­ter hu­man rights abusers, for which it is rarely used. Iron­i­cally, it is a stark ex­am­ple of leg­is­la­tion which it­self abuses hu­man rights, be­cause it gives the Min­is­ter ab­so­lute dis­cre­tion to des­ig­nate peo­ple with­out proof that they are in­volved in re­pres­sion and gives them no chance of con­test­ing the mer­its of that des­ig­na­tion through any trans­par­ent process.

The Com­mon­wealth Par­lia­ment's Joint Com­mit­tee on Hu­man Rights has con­sis­tently crit­i­cised the Act since its in­cep­tion in 2011, draw­ing

The ASA is not fit for pur­pose, if its pur­pose is to de­ter cor­rup­tion (which it does not ex­pressly tackle) or de­ter hu­man rights abusers, for which it is rarely used. No pub­licly avail­able doc­u­ment ex­ists in re­la­tion to what cri­te­ria and ev­i­dence are used when mak­ing a des­ig­na­tion.

at­ten­tion to the Min­is­ter's over­ween­ing dis­cre­tionary pow­ers and to the un­fair­ness of the process and the lack of ap­peal rights. It has rec­om­mended that the Act be amended to in­cor­po­rate some of the pro­tec­tions avail­able in the UK Sanc­tions Act.

It goes with­out say­ing that a law de­signed to pro­tect and pro­mote hu­man rights should not it­self be pro­ce­du­rally in breach of them. In or­der to be per­mis­si­ble un­der in­ter­na­tional hu­man rights law, sanc­tions laws must seek to achieve a le­git­i­mate ob­jec­tive and be rea­son­able, nec­es­sary and pro­por­tion­ate in achiev­ing that ob­jec­tive.

There is no doubt that the use of sanc­tions regimes, in an ef­fort to ap­ply pres­sure to gov­ern­ments and in­di­vid­u­als in or­der to name, shame and blame hu­man rights vi­o­la­tors and cor­rupt for­eign­ers is a le­git­i­mate ob­jec­tive for the pur­poses of in­ter­na­tional hu­man rights law. How­ever, the ASA can­not be re­garded as pro­por­tion­ate, be­cause it lacks ef­fec­tive safe­guards to en­sure that des­ig­na­tion of par­tic­u­lar in­di­vid­u­als is not ap­plied ar­bi­trar­ily or in er­ror, as well as the fact there is no right of a re­view of the des­ig­na­tion on its mer­its. Un­like the United King­dom, which re­viewed all the des­ig­na­tions made un­der its Ter­ror­ism Sanc­tions Act and strength­ened its safe­guards, the Com­mon­wealth govern­ment has never con­ducted a re­view into the ASA to as­cer­tain whether its des­ig­na­tions are pro­por­tion­ate and there­fore in line with in­ter­na­tional hu­man rights stan­dards.

It is also dif­fi­cult to as­cer­tain what in­for­ma­tion the Min­is­ter bases their de­ci­sions on when mak­ing des­ig­na­tions un­der the ASA. No pub­licly avail­able doc­u­ment ex­ists in re­la­tion to what cri­te­ria and ev­i­dence are used when mak­ing a des­ig­na­tion (other than what is listed in the reg­u­la­tions), nor is such in­for­ma­tion forth­com­ing. The Depart­ment of For­eign Af­fairs and Trade has said that it col­lates a range of ev­i­dence and in­for­ma­tion to in­form the Min­is­ter's de­ci­sion-mak­ing un­der the ASA, how­ever it re­fuses to re­lease such in­for­ma­tion de­spite mul­ti­ple re­quests by the Com­mit­tee, as well as re­quests un­der the Com­mon­wealth FOI laws.

The ef­fect of a des­ig­na­tion can have sig­nif­i­cant im­pact on the rights of the des­ig­nated in­di­vid­ual, and of fam­ily mem­bers. The ef­fect of des­ig­na­tion is that it is an of­fence for a per­son to di­rectly or in­di­rectly make any as­set avail­able to, or for the ben­e­fit of, an in­di­vid­ual. This could re­sult in close fam­ily mem­bers who live with a des­ig­nated per­son not be­ing able to ac­cess their own funds as re­sult of a freeze on their as­sets. Also, a per­son who is de­clared un­der the ASA may also have their visa can­celled pur­suant to the Mi­gra­tion Reg­u­la­tions 1994 (Cth). This could im­pact on the right to pro­tec­tion of the fam­ily, which en­sures that fam­i­lies are not ar­bi­trar­ily sep­a­rated from one an­other, some­thing which is not an ar­cane re­al­ity, with 11 Aus­tralian na­tion­als cur­rently be­ing named on the sanc­tions list.

An Aus­tralian Mag­nit­sky Act

The ASA rep­re­sents what Gil­lian Triggs, for­mer Pres­i­dent of the Aus­tralian Hu­man Rights Com­mis­sion, has been warn­ing about for some time, namely, a creep­ing ex­pan­sion of non-com­pellable and non-re­view­able dis­cre­tions of Com­mon­wealth Min­is­ters. Then For­eign Min­is­ter, Julie Bishop stated that she had no in­ten­tion of in­tro­duc­ing leg­is­la­tion into the Aus­tralian Par­lia­ment that would mir­ror or re­sem­ble the United States' Global Mag­nit­sky Act.

Cer­tainly, any Aus­tralian Mag­nit­sky law should de­part from some other Mag­nit­sky leg­is­la­tion, such as in the US, which al­lows the US Pres­i­dent to sanc­tion in­di­vid­u­als on merely the ba­sis of ‘cred­i­ble ev­i­dence' from the US State Depart­ment and the in­ter­na­tional NGOS. It is wrong that a de­ci­sion to des­ig­nate an in­di­vid­ual should be at the dis­cre­tion of the Ex­ec­u­tive, whether a US Pres­i­dent or Aus­tralian Min­is­ter.

An Aus­tralian Mag­nit­sky law should be one which re­spects the doc­trine of the sep­a­ra­tion of pow­ers be­tween govern­ment, par­lia­ment and the ju­di­ciary, as well as com­mon law rights and the in­ter­na­tional hu­man rights regime which Aus­tralia has signed up to. Or­ders for sanc­tions on in­di­vid­u­als should be made ei­ther by an in­de­pen­dent quasi-ju­di­cial body, or by an in­de­pen­dent Fed­eral judge, af­ter con­sid­er­ing ap­pli­ca­tions from the rel­e­vant Min­is­ter, govern­ment de­part­ments and in­tel­li­gence agen­cies, as well as in­for­ma­tion from NGOS and af­fected par­ties and (if se­crecy is not ini­tially re­quired) from tar­gets them­selves.

There is no doubt that in or­der to achieve the ob­jec­tive of pre­vent­ing hu­man rights abusers from en­joy­ing their ill-got­ten gains, sanc­tions regimes need to be flex­i­ble and ap­plied in an ef­fec­tive and timely man­ner. The in­de­pen­dent tri­bunal or Fed­eral judge em­pow­ered to or­der the sanc­tions would hear and de­ter­mine mat­ters on their mer­its in a trans­par­ent process, with the tar­get en­ti­tled to take part in pro­ceed­ings should they wish to do so (at least via Skype or a lo­cal lawyer) and to put their case and their ev­i­dence be­fore ei­ther a tri­bunal or a Fed­eral judge.

This model would be able to sanc­tion in­di­vid­u­als des­ig­nated by Mag­nit­sky laws or tri­bunals in other ju­ris­dic­tions such as Europe, the UK, Canada and the US, and the hope is that, in time, a mas­ter list of hu­man rights abusers would be built up, abusers ef­fec­tively ban­ished from ex­ploit­ing op­por­tu­ni­ties in the democ­ra­cies of the world. This will, of course, take time, and the Aus­tralian model would not au­to­mat­i­cally sanc­tion a tar­get of the US Global Mag­nit­sky Act with­out af­ford­ing a fair and trans­par­ent process.

Those sanc­tioned un­der the Aus­tralian model – a de­ci­sion which could se­verely af­fect their money and their move­ments – should have a right to ap­peal, and to ap­ply sub­se­quently for re­moval from the list. The stan­dard of proof the tri­bunal should ap­ply is the “bal­ance of prob­a­bil­i­ties” test (guilt be­ing “more likely than not”) rather than list­ing per­sons merely on the strength of sus­pi­cion or ru­mour. On the other hand, it should not be nec­es­sary to prove guilt “be­yond rea­son­able doubt” – a dif­fi­cult test to ap­ply in re­la­tion to for­eign sus­pects, es­pe­cially if their of­fences are be­ing cov­ered up by their gov­ern­ments.

This points to an­other pre­con­di­tion for the ap­pli­ca­tion of Mag­nit­sky pro­ce­dures, namely that the listed sus­pects should not be the sub­ject of gen­uine pro­ceed­ings in their own coun­tries. The need for in­ter­na­tional sanc­tions in the case of Mag­nit­sky was

The ASA rep­re­sents what Gil­lian Triggs…has been warn­ing about for some time, namely, a creep­ing ex­pan­sion of non-com­pellable and non-re­view­able dis­cre­tions of Com­mon­wealth Min­is­ters.

If all ad­vanced democ­ra­cies... adopted such laws and pooled in­for­ma­tion and tar­get lists, the plea­sures avail­able to the cruel and the cor­rupt would be con­sid­er­ably di­min­ished.

be­cause the Rus­sian state had taken no ac­tion to in­ves­ti­gate and pros­e­cute those re­spon­si­ble for his death, or against those of­fi­cials re­spon­si­ble for the mas­sive tax fraud that he ex­posed.

The In­te­rior Min­istry and its law en­force­ment of­fi­cials were bent on cov­er­ing up the crimes com­mit­ted by their col­leagues, and they went so far, as part of that cover-up, to pros­e­cute Sergei Mag­nit­sky posthu­mously, in or­der to pre­tend that their orig­i­nal per­se­cu­tion of him had le­gal jus­ti­fi­ca­tion. This was de­spite the fact that in­de­pen­dent bod­ies in Rus­sia, such as the Pres­i­dent's Hu­man Rights Coun­cil, had de­manded ac­tion against those re­spon­si­ble for Mag­nit­sky's death. It would be in­ap­pro­pri­ate to in­voke Mag­nit­sky pro­ce­dures at a time when the State in ques­tion was un­der­tak­ing proper in­quiries or had al­ready be­gun pros­e­cu­tions. Such ac­tion would be per­ceived as putting pres­sure on pros­e­cu­tors and in­fring­ing the sus­pect's rights to a pre­sump­tion of in­no­cence.

It is im­por­tant that an Aus­tralian Mag­nit­sky law be used as a gen­uine force for change in the Asia-pa­cific re­gion, rather than sim­ply re­flect­ing the diplo­matic poli­cies of the govern­ment of the day. It could pres­sure gov­ern­ments where gross vi­o­la­tions of hu­man rights and cor­rup­tion have oc­curred, and which are still said to be oc­cur­ring. It could tar­get the mid­dle-men who per­mit the ex­tra-ju­di­cial killings on be­half of Duterte, or the naval and army com­man­ders re­spon­si­ble for shelling Tamils seek­ing shel­ter in the No Fire Zone at the end of the Sri Lankan Civil War in 2009.

A Mag­nit­sky law used ef­fec­tively could en­sure that none of the USD 1 bil­lion al­legedly fun­nelled by dis­graced Malaysian PM Na­jib Razak and his cronies from a state-owned in­vest­ment firm ends up in Aus­tralian fi­nan­cial in­sti­tu­tions. Such a law would truly hon­our the mem­ory of Sergei Mag­nit­sky, a man who never wa­vered in the face of tor­ture and in­hu­mane treat­ment and who fear­lessly sought to bring those re­spon­si­ble for Rus­sia's big­gest ever tax fraud to jus­tice.

At a time when in­ter­na­tional crim­i­nal law is fal­ter­ing, the global jus­tice move­ment should look to lo­cal Mag­nit­sky laws as a means of nam­ing, blam­ing and sham­ing hu­man rights vi­o­la­tors. If all ad­vanced democ­ra­cies, with de­sired banks, schools and hos­pi­tals, adopted such laws and pooled in­for­ma­tion and tar­get lists, the plea­sures avail­able to the cruel and the cor­rupt would be con­sid­er­ably di­min­ished. They will not be put in prison, but they will not be able to spend their prof­its as and where they wish, nor travel the world with im­punity. They may then come to recog­nise that vi­o­lat­ing hu­man rights is a game not worth the can­dle.

IM­AGE: Sergei Mag­nit­sky – the mur­dered lawyer for whom Mag­nit­sky laws are named.

IM­AGE: US Fi­nancier and Mag­nit­sky Law ad­vo­cate, Bill Brow­der.

IM­AGE: © Krem­lin

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