New UK human rights sanctions legislation set to be published in the next few weeks is being touted as a possible tool with which to confront Chinese officials over Hong Kong, but questions loom about whether the law’s range and impact can meet such high expectations.
The difficulties inherent in drafting watertight sanctions is reflected in the long delay prior to its publication. An act giving the government the right to introduce what is known as Magnitsky-style laws against human rights offenders was passed in May 2018, but since then Foreign Office lawyers have been working on the detailed secondary parliamentary legislation known as a statutory instrument (SI).
The delay is all the more striking since the foreign secretary, Dominic Raab, a former Foreign Office human rights lawyer, has adopted it as his signature issue. The fact that it has taken 11 months to come to fruition shows how hard it has been – yet the delay at one level has proved fortuitous since the publication of the SI will now coincide with one of the UK’s greatest human rights challenges – the mass erosion of freedoms in its former colony.
Although Raab declined to say on Wednesday if Chinese officials will be included in the designations that will be named when the SI is published, it would seem surprising if no Chinese official is named. It had been thought the first targets would be from Russia, Libya and North Korea.
In Canada, where Magnitsky legislation is also on the statute books, a clamour is already starting for the law to be applied to Chinese officials. In the US Nancy Pelosi, the House Speaker, has also asked that the US Magnitsky laws – first passed to punish Russian officials responsible for the death of Russian tax accountant Sergei Magnitsky in a Moscow prison – are invoked over Hong Kong.
Raab’s delay has in part because the UK is attempting to do two complex things at once. It is substituting the EU’s sanctions framework with a UK regime, and at the same time introducing a human rights specific tool for which there are few models outside the US, Canada and the Baltic states. The US has sanctioned around 250 individuals and entities under its version, including most recently the first vice-president of South Sudan. Canada has sanctioned around 70 people.
In a country committed to the rule of law, such as the UK, it is critical to devise procedures that do not give a minister arbitrary powers for instance to paralyse an individual’s finances.
Raab in a letter to the foreign affairs select committee last month said the SI will not be about punishing individuals or countries, but a tool to allow the government to impose asset freezes on specific individuals, and entities. Those directly involved in abuse and those who profit from such abuse may be targeted. Issues also exist about whether these laws would apply only to perpetrators of gross human rights abuses, or, as in the US and Canada, the highly corrupt.
It is thought at present the UK law will not cover corruption cases and it is possible it may apply only to countries designed as of concern by the UK.
Rebecca Vincent, director of international campaigns at Reporters without Borders, said: “These laws are needed in cases where criminal prosecution is not possible. In some of the worst offences it is not possible to assemble the evidence. We would be concerned however if these laws are to be applied only in selective countries. It should be applied globally and to acts of corruption.”
An early test for the UK will be whether the sanctions are aimed at the prison guard jailing the victim of human rights abuse, or the judge and politician that set the security framework leading to an individual being abused. There must also be a purpose test. The sanctions are not intended to punish, but to change behaviour, such as greater leniency to a free press, so there must be clear criteria for when the sanction can be lifted.
There will also be accusations of double standards if the UK only targets leaders in small countries. “An uneven application of human rights sanctions will inevitably invite accusations of double standards,” said Emil Dall at the thinktank Rusi. “If the UK is prepared to sanction human rights abusers in a small, less developed country, it must be equally prepared to do so against individuals in countries with whom it is negotiating free trade agreements.”
It does not take much imagination to see a queue of NGOs wanting Raab to sanction the UK’s Gulf State allies. He will need good reason for turning a blind eye, beyond citing the national interest.
To avoid the charge of arbitrary power, or lousy double standards, clear criteria will be required. Individuals designated as human rights abusers will face serious penalties, as will potentially their families. Issues of compensation for wrongful designation, and speed of appeal all have to be addressed.
In pursuit of championing the good citizen and the cause of human rights, the UK cannot be seen to be acting like the high-handed state it claims to be deterring.