Bad People – and How to Be Rid of Them

INTRODUCTION

Happenstance had me born on 30 September 1946 – the very day of the judgment at Nuremberg, which inaugurated international criminal law by declaring that it was individuals, not sovereign states or political parties, who must be held responsible for crimes against humanity. So the length of my life could serve as a kind of temporal measure of how far the world has come in realising that promise, embedded in the charter of the United Nations and entrusted to its Security Council. I joined in the demonstrations for sanctions on South Africa at university in the 1970s, and became a member of Amnesty, writing endless and aimless letters to tyrants (‘Dear your Excellency Idi Amin VC and bar’; ‘Dear General Pinochet’) begging them to hold inquests into the deaths of the victims they had murdered. It was an ironic pleasure, a quarter of a century later, to act for Human Rights Watch in the proceedings against Pinochet to have him extradited and tried for torture.

By the late 1990s the Nuremberg legacy had been revived, with UN courts set up to try the bad people of the Balkans and then of Rwanda, and an agreement reached on establishing an International Criminal Court (ICC) in The Hague. I became the first president of the UN’s war crimes court in Sierra Leone, which eventually imprisoned Liberia’s former president, Charles Taylor, for complicity in war crimes and crimes against humanity. By 2011 there was such confidence in international justice that when Syrian demonstrators took to the streets in Damascus, their banners read ‘al-Assad to the Hague’. Their expectations were, tragically, far too high – they were mown down by machine-gun fire, and the pole-axed Security Council failed to protect them – or the 400,000 who subsequently shared their fate.

It was in the same year that I received a brief to defend an American businessman named Bill Browder from a libel action brought by a Moscow policeman whom Browder had accused of complicity in the torture and death of his tax lawyer, Sergei Magnitsky. The case was brought in London (where free speech can be expensive) and was probably funded by the Russian government. In one way, this was a welcome development – libel writs are more acceptable than poison as a way of silencing your critics – so I spent a lot of time with Bill and his team drafting one of the longest ever libel defences. The case was thrown out because it belonged in Russia, with all the evidence about the torture and death of an innocent man in a Moscow prison. Then, in December 2012, President Obama signed the first Magnitsky law, which imposed targeted sanctions on sixteen individuals involved in Magnitsky’s death, including the litigious policeman.¹

A law permitting the use of sanctions targeted against individual human rights abusers was novel. National sanctions, general in nature, had been imposed on this and other grounds against Iraq in the 1990s, but had caused massive hardship to an already oppressed population. After 9/11 the United Nations imposed targeted sanctions on terrorists and their financiers. But Obama’s Magnitsky law lassoed the bad judges, prosecutors and doctors who had negligently failed to treat a dying man. It was not that Magnitsky was a dissident or political prisoner – he had nothing in common with most of Putin’s opponents, which in a sense made his case more important. He was an ordinary person allowed to die by a system of institutional cruelty.

Imposing sanctions in this way became a lightbulb moment for the global justice movement, stymied by the superpower veto wielded by Russia and China – and America – in the Security Council against referrals to the ICC, the ‘Plan A’ for combating human rights abuses by trial and imprisonment of perpetrators. In consequence, international criminal justice had begun to falter, con­centrating on Congolese warlords but unable to prosecute Bashar al-Assad or persecutors of the Rohingya or the Tamils, let alone the assassins of Saudi journalist Jamal Khashoggi (the current problems with the ‘Plan A’ are described in chapter 3).

There are unresolved human rights issues in Western countries – the Black Lives Matter movement highlighting some current problems – and human rights initiatives emanating from them can be superficially condemned as reflecting a superiority associated with colonialism or racial condescension. But if human rights are universal, democratic countries should answer cries for justice by citizens of other countries when those cries have been ignored by their own governments. There can be no sensible objection if democratic nations, using their own domestic law, provide a mechanism for accountability and for asserting their own values by ostracising bad people in other states who are complicit in killings and corruption, but who then want to enjoy the pleasures, and the banking facilities, of the West.

True it is, and an historic and observable fact, that fundamental human rights have arisen in, and tend to be more respected by, liberal democracies. There is no a priori reason why this should be so: anyone living under an illiberal democracy, or communism or in a theocracy or under the sway of authoritarian populism, should be free from torture or assassination or slavery and should, if prosecuted, have independent judges and be given the chance of a fair trial.

These are not Western values so much as universal values, and countries in the West and anywhere else are entitled to assert them by calling out and throwing out individuals who can be proved to have betrayed them. To do so, in relation to nationals of a particular country, is not (as China always says) an interference in its internal affairs, it is marking a red line in how human beings should be treated. It does not amount to an attack on authoritarian states: it is rather an attack on those apparatchiks of authoritarianism who can be proved to have breached international law. Moreover, this book contends that open societies will have a better future by closing their doors to tainted people and corporations, and their money and property and close associates, and consequently to their malign power and influence.

Do targeted sanctions work? It is too early to say, but there are indications that they do; that they have stopped wealthy targets from doing business in international markets and from travelling to places they crave to visit. One purpose of this book is to argue that these kinds of sanctions must go further, providing real deterrence by preventing family members from travelling to take advantage of schools and hospitals in the West. Such sanctions must be imposed on the ‘train drivers to Auschwitz’, those lickspittle judges and prosecutors who unquestioningly do the bidding of autocratic governments, and on the prison doctors who leave prisoners to die, or who oversee torture sessions.

Magnitsky laws are in their infancy, and another purpose of this book is to explain how they must be improved and extended before they can fully serve their purpose. In one respect this means that they should be adopted by other countries, following the US, Canada and the UK. Australia is on the way, and in December 2020 the European Union finally delivered on its promise to establish a targeted sanctions regime, while the Japanese government is discussing one as well. The Commonwealth of Nations, formerly the British Commonwealth, an underwhelming organisation of fifty-four democratic states, could rally some of its members – Malaysia, New Zealand and Singapore in particular – to step up to the plate, a list supported by the ‘parliamentary peoples’ of the world would then become the most powerful tool in a human rights toolbox that is, at the moment, pretty empty.

Although this book argues the case for targeted sanctions, I have been concerned to pinpoint some problems with the unevolved Magnitsky laws at present. They pivot upon targeting decisions made by governments, and some may be made for political purposes rather than on the basis of evidence, and even made with actual antipathy towards human rights. As an ironic example, on 2 September 2020 the then US secretary of state, Mike Pompeo, implementing ex-President Trump’s executive orders, announced asset freezes and travel bans on the prosecutor and officials of the ICC. Given that 123 countries – most of them US allies – have signed up to the court, this decision was irresponsible. Since the court remains the UN’s prime mechanism for combating gross human rights abuses, it was reprehensible. It was not based on the Global Magnitsky Act but on a contrived state of emergency, and will hopefully be reversed early in the Biden presidency. But it does signal a danger – one that can be reduced by cooperation between democratic states – that targeted sanctions by irresponsible politicians will be aimed at the wrong targets.

This book has been written in lockdown, as nations around the globe are assaulted by COVID-19, which invites a focus on what the world may be like in the next few years. A hugely significant event in the course of 2020 was the killing of African-American Minneapolis man George Floyd, whose death was recorded by a ‘citizen reporter’ on her iPhone as Floyd was pinned to the ground by a police officer’s knee. While prosecutors debated for a week over whether to charge the officers with murder in the second or third degree, it was Bob Dylan (of all people) who was first to utter the truth: ‘It was torture – torture followed by death.’ The fact that Floyd’s death was witnessed – unlike Magnitsky’s and all the other deaths that take place in prison cells following torture – inspired hundreds of thousands of people around the world to brave COVID-19 and march in protests and in support of Black Lives Matter. Surely this is a sign that after the pandemic there will be a renewed determination to prevent such human rights abuses.

The plague year of 2020 also brought to the streets of Belarus peaceful protesters demonstrating against a rigged election, who were beaten by security police directed by ‘President’ Lukashenko’s apparatchiks. What could be done? NATO could not act, so the European Union reached to impose sanctions on these hard men of Minsk, only to have the plan petulantly vetoed for a month by Cyprus, one of its twenty-seven member states. Then the international community scratched its head about Russia, where Alexander Navalny had just been poisoned with novichok – a lethal cocktail concocted in a state laboratory and administered by FSB operatives, who were soon identified by the ‘citizen jour­nalists’ of the online investigator Bellingcat from the virtual clues they left while shadowing and attempting to kill him. Bellingcat had used open sources to expose other villains – the would-be poisoners of the Skripals in Salisbury, and the Russian army team that shot down Flight MH17 over Ukraine. Then, early the next year, came the army coup in Myanmar led by the same brutal generals who had persecuted the Rohingya and were already listed for that reason. We must face up to the prospect of cutting some people loose – making life as hard as we can for all those whose complicity enables these gross abuses to happen. The open societies of the world should rid themselves of connections to bad people by passing targeted sanction laws to name them, blame them and shame them, as a way of endorsing and enforcing the values theses democracies claim to hold dear.

This is not a legal textbook, because I think it’s important to move debates over human rights out of courts and legal academies and back to where they belong – in parliaments and in newspapers and among groups of volunteers moved by injustice and cruelty wherever they occur. What I strive to explain is how Magnitsky laws could provide a new and more effective way of combating human rights abuses, if fashioned fairly and implemented with determina­tion and coordination. This is the time to start thinking about them: on 7 December 2020 the European Union, after procrastinating for ten years, finally unveiled its Magnitsky law (although it did not mention Magnitsky, to avoid offending Russia). This dramatically increased the number of countries with such laws from 7 to 31. On the same day, a parliamentary committee in Australia, after a detailed investigation, strongly recommended that the nation adopt its own Magnitsky law. And Japan – the first democracy outside the West – showed an interest in following suit, the first country in East Asia to do so. Plan B suddenly seemed do-able.

For that reason, it seems opportune to offer an explanation of why targeted sanctions are a necessary next step in the fight for human rights, and how they might develop as a means for liberal democracies to regain some of the ground recently lost to authoritarian populists. There has been very little examination of the principles and purposes of Magnitsky laws, or indeed of their dangers if used as an adjunct to foreign policies that have nothing to do with human rights.

This book begins with an overview of Plan B, and chapter 2 goes on to explain how human rights became a subject of international concern. This is followed in chapter 3 by a brief history of the development of international criminal law at and after Nuremberg, and an explanation of why the ICC – Plan A for human rights enforcement – is now losing its way. An alternative has been suggested by the sufferings of Sergei Magnitsky – the ‘everyman’ whose galvanising story is told in chapter 4 prior to a survey of how far, a decade after his death, we have come in imposing targeted sanctions on human rights abusers. Chapter 6 suggests how much further we should go, and here I tread the tightrope of both expatiating on the merits of these laws while criticising some current examples. Chapter 7 gives an account of the kind of human rights abuses and corruption such laws might curtail. Chapter 8 is Australia-specific, examining the recommendations of the recent parliamentary committee report. An afterword speculates on the role that Magnitsky laws could play in a post-pandemic world.

Magnitsky laws should not be seen as an alternative to international criminal justice, which must remain the gold standard to which we can only hope that America will return, but rather as an assertion of certain fundamental values that nations are entitled to insist should be respected by other nations, and by everyone, everywhere. The need for targeted sanctions is becoming accepted in the West: the challenge is to convince other nations to join the Magnitsky circle and close democratic ranks against the cruel and the corrupt who enjoy impunity in countries where they reside. Newspaper columns are full of Cassandra voices predicting the demise of liberal democracy, but insofar as a fightback is necessary, the defence of human rights is a good place to start.

Geoffrey Robertson

Doughty Street Chambers

February 2021

1 Eighteen Russians were sanctioned by the first Magnitsky law, including the Chechen assassin of American journalist Paul Klebnikov.