Getting Human Rights Sanctions Right

December 3, 2012 Topic: EconomicsGlobalizationSanctionsTrade Region: RussiaUnited States

Getting Human Rights Sanctions Right

Carefully crafting laws like the one responding to the death of Sergei Magnitsky will maximize their moral legitimacy—and their impact.

The arrest of Sergei Magnitsky, a lawyer who, in the course of his duties exposing fraud directed against his client, uncovered compelling evidence of official corruption and malfeasance on the part of Russian law enforcement and government officials, was a travesty. His treatment, which led to his death in prison in 2009, was criminal.

Despite the consistent invocation by the Kremlin about “interference in domestic affairs,” the reality produced by globalization has eroded any clear distinction between “domestic” and “foreign” affairs. To the extent that Russia itself seeks to integrate into the global economy and to persuade others to invest in the country, how it deals with corruption and upholds the rule of law are very much the concerns of “outsiders.” Given that Magnitsky’s client was a major foreign investor in Russia, it was foolhardy for anyone in the Russian government to assume that the circumstances of his detention and death would not become an issue in Moscow’s bilateral relations with Western countries, beginning with the United States. Moreover, as much as the Kremlin may try to wish it away, the United States will never de-link how Russia conducts its domestic affairs from its diplomatic efforts to engage Moscow. The Russian government should have had no illusions that the Magnitsky case would not have had an impact on the U.S.-Russia relationship.

Nevertheless, the way in which the U.S. Congress has decided to weigh in on the matter is also problematic. Not because Magnitsky’s detention and death were outrages, and not because similar cases have highlighted a looming gap between Russian rhetoric about adhering to the rule of law and actual practice, but because of questions as to whether or not Congressionally-defined sanctions are the most effective tool for signaling both American disquiet as well as creating incentives for positive change.

To begin with, I tend to agree with the principle affirmed by the Supreme Court in the landmark ruling in United States vs. Curtiss-Wright Export Corporation, that the executive is the “sole organ of the federal government in the field of international relations” (299 U.S. 304 (1936)). Congress passes the enabling legislation that permits the executive branch to take action, and thereafter is free to give the president its advice and counsel, most notably through “sense of the House or Senate” resolutions. Both the George W. Bush and Barack Obama administrations have stressed this point in signing statements attached to various bills: Congress can advise, but cannot usurp, the president’s right to carry out foreign policy.

An American president already has an extensive toolkit to use against violators of human rights, including visa bans and asset freezes. Indeed, many of the individuals involved in the Magnitsky affair were sanctioned by the Obama administration in summer 2011. So, why the need for further Congressional action? Part of it is rooted in what legendary New York Times A. M. Rosenthal observed back in the 1990s when looking at executive orders barring trade with Iran: “[W]hat the President giveth he can canceleth.” The concern that a president may roll back sanctions even if a majority of the members of Congress wants them to continue is therefore a driving force to give sanctions “the non-cancelable stability of legislation,” as Rosenthal put it. Similarly, with the Magnitsky act, Congress is saying to President Obama that they do not fully trust his stewardship of the U.S.-Russia relationship—and want to be able to have a direct impact on how that relationship is conducted.

The problem is, however, that Congress often reacts to a situation, deploys a sledgehammer when a scalpel might be the better tool. Jackson-Vanik, the famed predecessor legislation, is a good case in point. Designed to force the Soviet Union to permit more Jews to emigrate to Israel and to support human rights, it ended up seeing the numbers of émigrés drastically reduced and the fledgling human rights movement destroyed. Moreover, because it was designed to prevent then-presidents Richard Nixon (and subsequently Gerald Ford) from striking ad hoc, informal arrangements with their Soviet counterparts, it had no provisions for the president to waive the terms of the legislation and no mechanism for automatically graduating countries once they fulfilled the criteria of the act. Russia has been certified to be in compliance with the provisions of Jackson-Vanik for two decades. Other, smaller ex-Soviet states, ones with no powerful lobbies or interests in the corridors of Capitol Hill to plead their cases, saw their relations with the U.S. impeded by the dead hand of the legislation.

One of the things that is troubling, however, is that Congress, having waited for so long to act, is now scrambling to catch up with the calendar. It has been no secret that Russia was about to enter the World Trade Organization—and that U.S. firms would be negatively impacted in trade with Russia if the United States did not have permanent normal trading relations in place—something that the Jackson-Vanik legislation impeded. Congress has waited to act until after Russia had already entered the WTO earlier this year to take up the question of repeal. Similarly, legislation inspired by the fate of Magnitsky had been languishing within the legislature for more than a year. Now that getting PNTR status for Russia is now a necessity—one that many American businesses have increasingly and agitatedly been lobbying for—Congress has decided to combine the repeal of Jackson-Vanik with creating a new set of “smart sanctions” on Russia. However, legislators are now citing the demands of the calendar (since the Congressional session is now entering its last days) to justify rushing through legislation. But when you move hastily, mistakes are made—and can be costly to correct.

The House has now passed a bill graduating Russia from the Jackson-Vanik requirements and creating a new series of sanctions (the Magnitsky Act). The Senate is due to consider similar legislation. There is still time, when the bill reaches the conference committee to prepare a final version for consideration by both houses (and then be sent to the president for his signature) to deal with existing problems or defects.

The first is that there needs to be a sunset provision for such legislation allowing it to expire, rather than to continue along in perpetuity. Congress should have to reauthorize the provisions of the bill every few years. When it comes to Russia, what happens if following the Putin presidency a more liberalizing administration were to come to power? U.S. leverage would be diminished if American policy were constrained by an act passed by a particular Congress in reaction to specific events.

Second, the final version of this legislation should also contain a clear statement of waiver power granted to the president—any president—to be able to override the provisions of the act should there be a clear and compelling national security interest. As we have seen in the U.S. relationship with Sudan, there may be conflicting priorities—between upholding U.S. values and the need for pragmatic cooperation in dealing with issues such as terrorism. The executive branch needs the freedom to be able to make such difficult calls.

Third, there needs to be a very strict evidentiary standard for inclusion on any U.S. blacklist. With the Magnitsky case, there is an overwhelming amount of evidence, some of it collected by Russia’s Investigative Committee, by an investigation chartered by President Medvedev, and by the Moscow Public Oversight Commission, as well as by international groups such as Transparency International. What Congress must avoid is a situation where anyone with a complaint against the Russian government can use the provisions of the act to strike back at political or economic rivals, particularly via effective lobbying on Capitol Hill. There has to be a way to sift through what goes under the catch-all Russian term of “kompromat”—often consisting of charges of wrongdoing against Russian political and business personalities, some of it assembled and disseminated by rivals—to separate fact from hearsay. The recently-concluded, drawn out court battle in the United Kingdom between rival oligarchs Boris Berezovsky and Roman Abramovich highlights how difficult it can be to get to the “bottom of things” in Russia’s very murky business and political climate—a point that Justice Gloster noted in her judgment. And now that another round of legal action designed to redistribute property in Russia seems to be underway, Radio Liberty’s Brian Whitmore raises the question as to what recent corruption investigations underway in Russia mean, asking, “Is it an anti-graft campaign? A purge of the elite? Or the start of a clan war?”

It goes without saying that, if Congress mandates that the State Department carry out investigations of those accused of human rights violations for possible inclusion on any list, it will have to make sufficient funds available for the State Department to carry out this task—and the State Department, in turn, should not be outsourcing such a function to others. Congress also has to address another glaring question: what about activities that may be legal under U.S. law but are prohibited by Russian legislation? Are those who enforce Russian laws subject to the provisions of the act if Americans believe that law enforcement action would not be warranted under U.S. law—and thus would constitute a violation of human rights? Leaving aside the question as to how the recent Pussy Riot trial was conducted, opinion polling about the case in Russia (versus in the West) showed very different understandings of what the limits of free expression ought to be, as well as whether the “punk prayer” in the Cathedral of Christ the Savior should be viewed as misdemeanor trespass or as a more serious crime of incitement of ethnic and religious hatred.