Mr. Bill Browder: the Foundation of Magnitsky Law and the Case of the US

Symposium on Sanctioning Human Rights Violations: Magnitsky Laws in the World – Lessons Learned1 A Joint Symposium with Human Rights Watch and the University of Tokyo International Law Training and Research Hub Session 1 (12 March 2021, 18:00-21:00) The Symposium was opened by Professor Ai Kihara-Hunt, emphasizing its importance as a the first ever symposium on Magnitsky Laws in Japan. It aims, first, to spread awareness on the Law by sharing lessons learned from the adoption of Magnitsky legislation in other countries, and second, to provide space for discussions on the merits of enacting such legislation in Japan. Ms. Kanae Doi, Japan Director at Human Rights Watch, provided opening remarks by stressing the importance of remembering the legacy of the Magnitsky Act. She highlights that one of the fundamental merits of such legislation is that because it uses targeted sanctions against specific human rights abusers, it is able to avoid the highly political notion of sanctions that tend to affect relations between governments. She also underscored that Japan must implement Magnitsky Laws to be able to respond to human rights violations in Myanmar, Hong Kong, the DRC, and other parts of the world. She notes, “there are human lives being torn apart and people that should be held accountable.” Mr. Bill Browder: The Foundation of Magnitsky Law and the Case of the US Co-founder and CEO of Hermitage Capital Management, Mr. Bill Browder is well-known as a pioneer and primary advocate of Magnitsky legislation. He started the panel presentations by sharing his personal background and how large-scale corruption in Russia, where the investment fund management company he co-founded maintains an office in, has motivated his advocacy for global human rights legislation. He shares that he graduated with a degree from the Stanford Business School in 1989. With the fall of the Berlin Wall in that same year, he saw an opportunity to become one of the biggest capitalists in Eastern Europe. He initially moved to London, and then Moscow, where he set up his investment fund management company, that would later become the largest foreign investment fund in the country. It did not take long, however, before he realized the breadth of corruption Russia, as he found out that the companies he was investing in were being “robbed” by Russian oligarchs. Because of a corrupt court system and the lack of dependable law enforcement, Mr. Browder realized that 1 This record of the Symposium’s proceedings is prepared by Mr. Raymond Andaya, based on reporting by Ms. Meha Kaul and Ms. Chihiro Toya. he would have to deal with these unfair bureaucratic practices on his own. He, along with a staff of researchers, publicized this scandal through a ‘naming and shaming’ campaign, setting off a reaction from newly elected President Vladimir Putin. Putin vowed to crack down on these oligarchs named in Mr. Browder’s exposition. Out of fear of being arrested for tax evasion, oligarchs opted to conduct business with President Putin. His partnership with the country’s oligarchs made him the richest man in Russia by the early 2000s. Mr. Browder was, then, declared as a threat to national security and deported to London in 2005. He began liquidating his holdings in Russia so that they cannot be seized and arranged for the evacuation of his staff and their dependents. In 2007, Mr. Browder received a call from his remaining staff in Moscow about their office being raided by a group of police officers, looking for more information on his investment holding companies. The Russians fraudulently re-registered these companies under the name of a known criminal. Suspicious of what was happening in Moscow, Mr. Browder hired Mr. Sergei Magnitsky to help him figure out what the Russians’ intentions were. Magnitsky came back to Mr. Browder with some remarkable findings: the Russians were attempting to steal his assets. However, because these assets have already been liquidated, they instead went to the tax authority (with forged documents) and filed an amended tax return claiming that “their” company had overpaid and that the tax was erroneously paid. These fraudulent activities allowed them to get a tax refund which is the largest in Russian history. Initially, Mr. Browder and Mr. Magnitsky opted to file criminal complaints while exposing the story to the media. Unfortunately, in 2008, Magnitsky was arrested, put in pre-trial detention, and tortured to force him to withdraw his sworn testimony on the criminal complaint. Magnitsky was later brought to Moscow’s Butyrka prison where he was eventually murdered in November 2009. After his death, Mr. Browder vowed to seek justice for Magnitsky’s death, even while he was outside Russia. Magnitsky left behind 450 meticulously written complaints in detention, documenting the abuse they did to him, including who did it and how. Browder got copies of these making it one of the most well-documented cases of human rights violation to come out in Russia in the last 35 years, in terms of evidence. Browder decided to focus on the gaps in the international legal system, noticing that such perpetrators tend to enjoy impunity. Most of these perpetrators were able to keep money in the West, such as through British banks. This gave Browder an idea to develop a mechanism in which such people’s assets were frozen in the countries where they were kept. Mr. Browder approached two US Senators, Benjamin Cardin and John McCain to suggest legislation that would freeze American assets and entry visas of perpetrators of grave human rights violations. This later became the Magnitsky Act introduced in October 2010. Senators McCain and Cardin later pushed for the expansion of the Act to include dictators in other countries, as the Global Magnitsky Law. This set off a chain reaction of countries passing Magnitsky legislation, with the EU being one of the latest, most significant, actors in the international community responding to advocacy for global human rights legislation. Asked about his thoughts on the globalization of the movement for human rights legislation that he initiated, Mr. Browder remarks that the fact that this started out as a ‘battle’ between him and President Putin, helped the movement gain traction as potentially being a way of holding accountable human rights violators and corrupt kleptocrats not only in Russia, but also in China, Venezuela, Saudi Arabia, and other countries. He believes that the global movement has “taken a life of its own,” as a tool to address new global challenges related to human rights violations and corrupt governance. Mr. Browder was, then, asked about the prospects for centralizing Magnitsky Law. He notes that there might be hope in harmonizing various national Magnitsky Acts. However, there is currently too much variety in provisions for sanctioning individuals. He also expressed disappointment over the recently announced list of EU Magnitsky law-sanctioned individuals which lacks the names of those who were involved in Magnitsky’s murder. Mr. Browder further notes the importance of proper sanctioning based on human rights legislation. He states that in many countries, the major issue is that the government either fails to prosecute or is not interested in prosecuting human rights violators. It is in this context that Magnitsky Laws hopes to provide some recourse towards justice. With its implementation, however, being discretionary and not mandatory, Mr. Browder remarks that it is also in the interest of activists to put pressure on their governments and find allies to push for more effective implementation of the legislation. Prof. Irwin Cotler: The Case of Canada Professor Irwin Cotler begins by recognizing Bill Browder’s historical contribution to the global human rights legislation movement, and by stating that Mr. Browder’s efforts inspired his own involvement in Canada for the cause of Magnitsky legislation. Prof. Cotler, Chair of the Raoul Wallenberg Center for Human Rights, is also Professor Emeritus at McGill University, former Justice Minster and Attorney General of Canada, and long-term member of the Canadian Parliament. He used his experience and capacity to initiate the adoption of Canada’s version of the Magnitsky Act to bring justice and accountability to cases of human rights violations. He begins by explaining how the Magnitsky regime developed in Canada. Following a meeting with Mr. Browder in November 2010, Prof. Cotler began engaging with various ministries in the government and the parliament to better understand the context of Magnitsky legislation. Prof. Cotler aimed for the adoption of the law modeled after the American Magnitsky Act. In 2012, he launched the Justice for Sergei Magnitsky Inter-Parliamentary Group, which led to the adoption of relevant resolutions in the Canadian Parliament. The assassination of Boris Nemtsov in 2015 not only shifted perspectives towards democracy in Russia; it also strengthened Prof. Cotler’s case for Canada’s more significant role in global Magnitsky legislation. In March 2015, the House of Commons unanimously adopted a motion calling for Magnitsky legislation. In June of the same year, Cotler introduced the Global Magnitsky Human Rights Accountability Act, with support from all parties in the parliament. In October 2017, a Magnitsky Law was finally unanimously adopted as law in Canada. Prof. Cotler attributes the adoption of the Magnitsky Law in Canada to the involvement of civil society and the NGO community. Furthermore, the Parliamentary Caucus for human

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