Newsletters Criminal Defence 2nd Nov 2020

The Global Human Rights Sanctions Regime and UK’s recent adoption of Magnitsky-type sanctions

On 6 July 2020, the UK introduced the Global Human Rights sanctions regime (‘GHRSR’), under the Sanctions and Anti-Money Laundering Act 2018 (‘the Sanctions Act’).

The GHRSR is, domestically, ground-breaking for two reasons: it is the first autonomous sanctions regime to be created under the Sanctions Act (previously, the Act had been used to mirror existing EU and UN regimes in UK legislation, made necessary as a result of our withdrawal from the European Union); and, it is the first time the UK has sanctioned individuals and entities expressly for human rights violations (rather than under a geographic/country-specific and/or thematic/sectoral regime).

That said, its implementation did not break new ground internationally, as the GHRSR follows similar measures adopted some time ago in other jurisdictions, notably the U.S., which signed the Global Magnitsky Human Rights Accountability Act into law on 23 December 2016, and has long been in contemplation by the European Union.

The Explanatory Memorandum to S.I. 2020 No. 680 states that:

 “This instrument is intended to deter, and provide accountability for, activities which, if carried out by or on behalf of a State, would amount to a serious violation of certain human rights by that State. This instrument enables the Secretary of State to impose asset freezes and travel bans on persons involved in such conduct.”

The Government, through the Office of Financial Sanctions Implementation (‘OFSI’), maintains that “[t]he tool underlines the UK’s commitment to be a force for good, and will complement and enhance our existing human rights activities”.

Individuals currently designated under the GHRSR (the regime was updated on 29 September 2020) fall into four main categories:

  • those responsible for the detention and mistreatment of Sergei Magnitsky, the Russian tax adviser, leading to his death in custody in Moscow in 2009 (25 persons);
  • those responsible for the murder of Jamal Khashoggi, the Saudi Arabian dissident and writer, in Istanbul in 2018 (20 persons);
  • senior Myanmar Armed Forces commanders responsible for the troops who carried out serious human rights violations against the Rohingya population in Rakhine State in 2017 and 2019, including unlawful killings, torture, forced labour, systematic rape and other forms of targeted sexual violence (2 persons);
  • senior Belarusian government officials responsible for: promoting violence against protestors and journalists that have followed the disputed election result; serious violations of the right not to be subject to cruel, inhuman and degrading treatment or torture of detained protestors and journalists (8 persons).

Entities currently designated under the GHRSR currently fall under only one category:

  • organisations within DPRK (North Korea) responsible for running political and other prison camps and involved in widespread serious human rights violations committed against prisoners in those camps including murder, torture and enslavement and subjection to forced labour of detained people (2 entities).

Those persons are subject to travel bans – a designated person must be refused leave to enter or to remain in the UK – and, those persons and entities are subject to asset freezes – it is a criminal offence to make funds and/or economic resources available to, or for the benefit of, a designated person.

In the three months since implementation, there has not been any announcement by OFSI of any reported breach of those measures giving rise either to criminal prosecution or to the imposition of a financial penalty.  However, businesses and those advising them should be familiar with the up-to-date advice and guidance from OFSI.

Of note, and perhaps dissonant with the UK’s stated commitment to be a force for good, is the non-inclusion of measures relating to the well documented oppression of the Uighur people of the Xinjiang Uyghur Autonomous Region (‘XUAR’).  In that regard, and despite its perceived belligerence in relation to Iran and Cuba, again, the U.S. has taken a lead.

On 31 July 2020, the U.S. Office of Foreign Asset Control designated the Xinjiang Production and Construction Corps (‘XPCC’) for its connection to serious human rights abuse in the XUAR, ordering that U.S. persons cease to engage in transactions and activities with XPCC and ‘wind down’ transactions involving any entity in which the XPCC owns, directly or indirectly, a 50 percent or greater interest by 30 November 2020.

Despite repeated criticism of China on this issue, and despite baring its new-found GHRSR teeth in relation to Myanmar, the UK has not yet taken any similar steps in relation to China.  While there may be many reasons for a different approach between the two; and, while the imposition of sanctions is unlikely to be the first act in encouraging better conduct abroad; and, while the effect of imposing sanctions may be difficult to assess, the designation of an individual or entity remains an inherently political act with potentially far-reaching economic and cultural consequences.  As with all financial and trade sanctions, realpolitik may sometimes get in the way of the protection of fundamental rights and freedoms.


Gavin Irwin

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