The Progressive Lawyers Group's Submissions to the Australian
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The Progressive Lawyers Group’s submissions to the Australian Parliament for its Inquiry into whether Australia should examine the use of targeted sanctions to address human rights abuses A. Introduction 1. The Progressive Lawyers Group (the “PLG”) is a civil society group based in Hong Kong. The PLG was formed by a group of lawyers in January 2015. Inspired by the 2014 “Umbrella Movement” protests, the PLG’s mission is to defend the rule of law, democracy, human rights, and freedoms in Hong Kong. Currently, the PLG has over 100 members consisting of solicitors, barristers, in-house lawyers, legal academics, and law students. 2. The PLG has made submissions to various governments regarding the rule of law and human rights situation in Hong Kong. For example, in January 2019, the PLG made submissions to the United Kingdom Parliament’s Joint Committee on Human Rights1 ; and in July 2019, the PLG (with other civil society groups) made submissions to members of the United States Congress in support of the Hong Kong Human Rights and Democracy Bill.2 3. The PLG is pleased to present these submissions for the present inquiry into whether Australia should examine the use of targeted sanctions to address human rights abuses, being conducted by the Australian Parliament’s Joint Standing Committee on Foreign Affairs, Defence and Trade. For the reasons below, we submit that there are clear and compelling reasons for Australia to implement a “Magnitsky”-style sanctions regime. 1 UK Parliament, Joint Committee on Human Rights, Inquiry on Human Rights Protections in International Agreements, 2019 <https://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/ inquiries/parliament-2017/parliamentary-scrutiny-international-agreements-17-19/publications/> 2 Joint submission in support of the Hong Kong Human Rights and Democracy Act of 2019 by 22 post-umbrella professional groups in Hong Kong <https://www.thestandnews.com/politics/%E8%81%AF%E5%90%88%E7%AB%8B%E5%A0%B4%E 6%9B%B8-%E4%BF%83%E8%AB%8B%E7%BE%8E%E5%9C%8B%E5%9C%8B%E6%9C%83%E 5%84%98%E5%BF%AB%E9%80%9A%E9%81%8E-%E9%A6%99%E6%B8%AF%E4%BA%BA%E6 %AC%8A%E8%88%87%E6%B0%91%E4%B8%BB%E6%B3%95%E6%A1%88-2019/> 1 B. Australia as a country which upholds human rights 4. Australia is a country with strong democratic values, which has a proud tradition of making efforts to defend human rights. This is reflected, for example, in the fact that Australia is a State Party to 7 major international conventions relating to human rights, namely: 4.1. The International Covenant on Civil and Political Rights (ICCPR) 4.2. The International Covenant on Economic, Social, and Cultural Rights (ICESCR) 4.3. The International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 4.4. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 4.5. The Convention on the Rights of the Child (CRC) 4.6. The Convention on the Rights of Persons with Disabilities (CRPD)3 C. The global trend towards Magnitsky-style sanctions C1. Introduction 5. It is clear that, in the last decade, there has been a growing trend among countries -- especially those in the liberal democratic world -- to adopt Magnitsky-style sanction regimes. C2. United States - Global Magnitsky Act 6. The Magnitsky Act (officially the Russia and Moldova Jackson–Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act) was a bipartisan bill passed in 2012 in the United States, in the wake of the death of Sergei Magnitsky. Sergei Magnitsky was a tax advisor who had been investigating corruption by Russian government officials. He died in prison in Russia, with subsequent investigations revealing a disturbing lack of medical care despite his suffering from gallbladder problems and pancreatitis; and probable serious physical assaults while in prison 7. The Magnitsky Act was originally designed to target Russian officials complicit in the death of Sergei Magnitsky by banning their entry into the US, freezing their financial assets, and barring their ability to use the US financial system. 3 Attorney’s General Department, ‘International Human Rights System’ <https://www.ag.gov.au/RightsAndProtections/HumanRights/Pages/International-Human-Rights-Syste m.aspx> accessed 22 March 2020. 2 8. Unlike traditional sanction regimes which target a country generally, the Magnitsky Act allowed for the sanctioning of specific individuals. It initially named 18 Russian nationals connected to the death of Sergei Magnitsky. 9. Thus, the Magnitsky Act represented a significant advancement in thinking when holding human rights violators to account. It provided a much more precise and nuanced tool that could avoid collateral damage to innocent citizens living in human rights-violating regimes, while directly impacting perpetrators. 10. In 2016, the US Congress passed the Global Magnitsky Human Rights Accountability Act, expanding the framework of the original Magnitsky Act to cover any individual who commits violations of human rights worldwide (rather than being limited to Russia), and also to those who engage in serious corrupt practices. 11. Initial reports show that the Global Magnitsky Act does indeed have ‘teeth’. Notable achievements so far include disrupting corruption in the mining industry in the Congo; targeting those responsible for the death of journalist Jamal Khashoggi; and imposing sanctions on members of the Burmese military who were involved in atrocities against Rohingya Muslims.4 In total, the US has imposed sanctions on approximately 94 individuals and 102 entities from 24 countries.5 C3. United States - Hong Kong Human Rights and Democracy Act 12. In November 2019, the United States passed the Hong Kong Human Rights and Democracy Act (with overwhelming bipartisan support in both the Senate and the House of Representatives). One of the legislation’s key features is that it allows the US to impose Magnitsky-like sanctions (such as asset freezes and travel bans) against individuals who are found to be violating human rights in Hong Kong.6 4 US Treasury Department, “Treasury Sanctions Commanders and Units of the Burmese Security Forces for Serious Human Rights Abuses”, 17 August 2018 <https://home.treasury.gov/news/press-releases/sm460> 5 Guardian, “Australia urged to pass Magnitsky human rights law or risk becoming haven for dirty money”, 17 February 2020 <https://www.theguardian.com/law/2020/feb/17/australia-urged-to-pass-magnitsky-human-rights-law-o r-risk-becoming-haven-for-dirty-money> 6 New York Times, “Trump Signs Hong Kong Democracy Legislation, Angering China”, 27 November 2019 <https://www.nytimes.com/2019/11/27/us/politics/trump-hong-kong.html> 3 C4. Canada - Justice for Victims of Corrupt Foreign Officials Act 13. In 2017, Canada passed the Justice for Victims of Corrupt Foreign Officials Act. This allowed the Canadian government to impose Magnitsky-style asset freezes and travel bans on foreign persons who were found to be responsible for, or complicit in, gross violations of internationally-recognized human rights. So far, Canada has used this legislation to sanction officials from Venezuela, South Sudan, Saudi Arabia, Russia, and Burma.7 C5. United Kingdom - Sanctions and Anti-Money Laundering Act 14. In 2018, the United Kingdom introduced a Magnitsky-style sanctions regime (through an amendment to the Sanctions and Anti-Money Laundering Act, which was then in the course of being enacted). This would allow the UK government to impose sanctions (such as asset freezes and travel bans) on individuals who commit gross human rights violations. 15. Boris Johnson, the then UK Foreign Minister, commented that: “These (provisions) will allow the UK to act against those responsible for serious offences worldwide. UK stands up for human rights globally.”8 16. The UK government has indicated that the sanctions regime will be implemented (and indeed enhanced) once the country has left the European Union.9 7 Government of Canada, “Justice for Victims of Corrupt Foreign Officials Act”, accessed 23 March 2020 <https://www.international.gc.ca/world-monde/international relations-relations internationales/sanctio ns/victims corrupt-victimes corrompus.aspx?lang=eng>; Irfan Yar, “Canada Should Use the Magnitsky Act to Target China’s Human Rights Violators”, Macdonald-Laurier Institute, 22 March 2019 <https://www.macdonaldlaurier.ca/canada-should-use-the-magnitsky-act-to-target-chinas-human-right s-violators-irfan-yar-in-the-epoch-times/> 8 Reuters, “UK lawmakers back ‘Magnitsky amendment’ on sanctions for human rights abuses”, 2 May 2018 <https://www.reuters.com/article/us-britain-russia-magnitsky/uk-lawmakers-back-magnitsky-amendme nt-on-sanctions-for-human-rights-abuses-idUSKBN1I24BI> 9 Conservative Party, “Why we’re implementing Magnitsky’s Law”, accessed 23 March 2020 <https://www.conservatives.com/sharethefacts/2019/10/magnitsky-law> Reuters, “Britain to introduce a Magnitsky law after Brexit: foreign minister”, 29 September 2019 <https://www.reuters.com/article/us-britain-eu-raab/britain-to-introduce-a-magnitsky-law-after-brexit-fo reign-minister-idUSKBN1WE0IT>; Financial Times, “UK to begin crackdown on human rights abusers”, 10 January 2020 <https://www.ft.com/content/38cd4b7e-32fd-11ea-a329-0bcf87a328f2> 4 C6. European Union 17. On 14 March 2019, the European Parliament passed a (non-binding) resolution calling for the European Council “to swiftly establish an autonomous, flexible and reactive EU-wide sanctions regime that would allow for the targeting of any individual, state and non-state actors, and other entities responsible for or involved in grave human rights violations.” 10 18. Recently (in December 2019), the European Union officially announced that it would be starting work to set up a Magnitsky-style sanctions regime. In making the announcement, the EU High Representative for Foreign Affairs, Josep Borrell, commented that “this will be a tangible step reaffirming the European Union’s global lead on human rights.”11 19.