Ministry of Foreign Affairs

Joint Standing Committee on Foreign Affairs, Defence and Trade Section Political Affairs Department of the House of Representatives Attn. The Hon Kevin Andrews MP P0. Box 20061 Chair Human Rights Sub-committee 2500 EB The P0 Box 6021, Parliament House, Canberra ACT 2600 www.netherlandsandyou.nI Contact BPZminbuza.ni

Date 25 February 2020 Re Invitation to contribute a submission to the Australian Parliament’s inquiry into a framework for autonomous sanctions under Australian law to target human rights abuses

Dear Mr. Andrews,

Thank you for your letter of January 9. In your letter you are asking the Netherlands to provide a submission to the Australian Parliament’s inquiry into a framework for autonomous sanctions under Australian law to target human rights abuses. For over a year now, the Netherlands has been calling for the establishment of an EU global human rights sanctions regime. In December 2019 all EU foreign ministers expressed political support for this initiative and the Iaunch of preparatory work was announced by the EU High Representative. This means that negotiations to develop such a sanctions regime are ongoing in Brussels at this moment. Enclosed you will find two letters from the Minister of Foreign Affairs of the Netherlands, , to the House of Representatives on the EU Global Human Rights Sanctions regime.

1f you have any additional questions please do not hesitate to contact me.

Yours sincerely,

Nico Schermers Head of Bureau of Political Affairs/Sanctions

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Letter of 26 November 2018 from the Minister of Foreign Affairs to the President of the House of Representatives on the EU Global Human Rights Sanctions Regime seminar held on 20 November 2018.

On Tuesday 20 November 2018 the Netherlands held a high-level official meeting in the Peace Palace, The Hague, with a view to setting up an EU Global Human Rights Sanctions Regime as part of efforts to implement the motion submitted to the House by MP Pieter Omzigt and others concerning the Magnitsky Act (Parliamentary Papers 22112-2529). Representatives of the EU member states, the European Commission, the European External Action Service (EEAS), the United States and Canada were present. The concluding address was given by the Minister of Foreign Affairs, Stef Blok, and is available at https://www.government.nl/documents/speeches/2018/11/20/blok-on-eu- global-human-rights-sanction-regime.

Eminent academic speakers with a wide range of expertise relevant to developing a new sanctions regime in this specific area opened the seminar with presentations on the legal framework with which a sanctions regime applying to human rights violators would have to comply. Delegations from the US and Canada then explained how the legislation was enacted in their countries, the dilemmas that had to be addressed and the experience gained in this area to date. Finally, representatives of civil society spoke about their experiences with their own national sanctions regimes and their views on the desirability of a European mechanism to strengthen human rights worldwide.

The sanctions regime envisaged by the Netherlands must be based on a unanimous decision of the Council. For this reason, the government has decided that public support for this initiative must first be created. That is why it organised a closed seminar for and with all 28 EU member states and relevant European institutions.

The seminar resulted in the following conclusions.

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General Although various participants spoke positively of the Netherlands’ initiative to create an EU Global Human Rights Sanctions Regime, a number of member states have as yet expressed no view. There are still many questions regarding the design and implementation of such an instrument, but a number of those present indicated their willingness to work further on the initiative with the Netherlands. We now intend to pursue this proactively in the framework of the Council.

Aim of an EU Global Human Rights Sanctions Regime The participants considered the importance of and need for a new EU instrument in a changing world. Alongside the geographical sanctions regimes targeting a single country, a supplementary instrument is necessary in order to be able to tackle individual human rights violators all over the world. In many cases, those responsible of serious cross-border human rights violations – human trafficking and sexual violence, for example – cannot be targeted by existing EU geographical sanctions. Even the International Criminal Court (ICC) is not always able to take action. Its jurisdiction extends only to specific international crimes and referrals from the UN Security Council are for a number of reasons limited. An EU global human rights sanctions regime could play a significant complementary role. A general, descriptive name for the regime, such as ‘EU human rights sanctions regime’ was endorsed by the participants on account of its global scope.

Criteria for an EU Global Human Rights Sanctions Regime The main part of the discussion concerned the definition of gross human rights violations. Which violations could or should be covered by the new regime? Speakers identified the advantages and disadvantages of either a broad or a narrow definition of human rights violations. A broader definition could also include sexual violence in conflict situations (in line with the motion submitted by MP , Parliamentary Papers 35000-V- 32) and/or the use of hunger as a weapon of war (in line with the motion submitted by MP , Parliamentary Papers 35000-V-27), as

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well as the most serious human rights violations. Incidentally, it was emphatically not the intention for the seminar to adopt positions on these issues, so the participants did not express any views regarding the Netherlands’ suggestions.

Complementary to existing EU policy Participants discussed the significance of the proposed sanctions regime as a complement to existing regimes and external EU human rights policy. The present set of instruments consists of exercising bilateral and multilateral pressure on states alongside a more general effort to protect and defend universal human rights and the international legal order.

The participants emphasised that sanctions must in the first place be deployed to reinforce the message that human rights violations are unacceptable. The EU opposes those who believe they can, with impunity, commit serious crimes to achieve their aims. Sanctions would put a real price on this behaviour.

The participants also drew attention to the relationship between this EU sanctions regime and the ICC. The basic premise must be that human rights sanctions and criminal prosecution are two different instruments. Sanctions are complementary to criminal law proceedings; they do not replace them. Various speakers argued that when international criminal proceedings are not an option, and a national prosecution fails to materialise, a sanctions regime offers the EU the opportunity to take action and to send a political message. Many of those present endorsed this view.

Other speakers considered the expected effectiveness of an EU regime. Though it is difficult to make well-substantiated statements regarding existing regimes because they have only been in place for a short time, they do seem to have a deterrent effect. Nevertheless, some participants pointed out the need for a broader strategy if the EU should proceed to impose sanctions in regard to human rights violations.

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Due process for listing, review and delisting Broad support was expressed for the view that any EU human rights sanctions regime should serve as an example in the area of effective legal protection and due process guarantees for persons placed on the sanctions list. Participants discussed the form due process should take, when the list should be reviewed, the burden of evidence, use of public sources and criteria for listing and delisting individuals. The follow-up process will need to devote attention to the range of issues surrounding legal protection.

Design and management of the process During the discussion a number of suggestions were made regarding the structure of decision-making within the EU on listing and delisting individuals under the sanctions regime. Speakers emphasised the importance of broad consultation and thorough research on every listing. This will of course be extremely time-consuming. The importance of a robust dialogue with civil society was widely acknowledged. There was further reflection on the role civil society organisations, national parliaments, the European Parliament, the EEAS and possibly an independent commission could play in decision- making under the sanctions regime, for example in making suggestions for the sanctions list. I referred explicitly in the discussion to the proposal of the European Stability Initiative (ESI) (supported by MPs , Pieter Omzigt and ). Although the idea of decision-making by an independent commission as proposed by the ESI received little support, some participants were open to the idea of a – still to be defined – role for civil society, as there is in the US.

Follow-up It is vital that we do not allow the momentum we have worked carefully to create to slip away. For this reason, when the Foreign Affairs Council meets on 10 December 2018 – International Human Rights Day and the day on which the 70th anniversary of the Universal Declaration of Human Rights will be celebrated – the Netherlands will again draw attention to this initiative with a view to reaching agreement on a mandate for the EEAS to develop such a

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sanctions regime. To achieve this, unanimity as referred to above will be required.

5 Letter of 5 July 2018 to the House of Representatives from the Minister of Foreign Affairs, Stef Blok, on the motion submitted by and others concerning Magnitsky sanctions

On 3 April 2018 the House of Representatives adopted the motion submitted by Pieter Omtzigt and others (Parliamentary Paper 22 112, 2529), which asks the government to investigate whether there is enough support in the European Union for EU-level sanctions against those responsible for gross human rights violations and, if this is not the case, to prepare Dutch legislation to that end. The motion also asked the government to inform the House, within five months, of the action taken. In writing this letter, I am fulfilling the undertakings I gave at my meeting with the permanent parliamentary committee on foreign affairs on 15 May 2019.

Purpose of a thematic human rights sanctions regime Human rights are a core value of the European Union. The increase in autocracies and unfree democracies is a growing threat to human rights. A thematic sanctions regime against human rights violators would be a valuable addition to the EU’s existing external human rights instruments. It would allow sanctions to be imposed on individual human rights violators worldwide with a view to changing their behaviour. Furthermore, it would act as a deterrent for other actual or potential human rights violators. Sanctions are most effective when they have broad international backing. National sanctions only have a very limited impact and also make the Netherlands more vulnerable to countermeasures.

What has been done so far? Recently, the Netherlands has approached countries that have already imposed sanctions on human rights violators to find out why and how the measures came to be adopted and what their experience has been. This has resulted in the following information.

In the United States the Sergei Magnitsky Rule of Law Accountability Act has been in force since 2012. It imposed sanctions on, inter alia, individuals involved in the death of the Russian accountant Sergei Magnitsky, who died in a Moscow prison in 2009. In 2016 Congress passed the Global Magnitsky Human Rights Accountability Act, which authorises the president to impose sanctions on human rights violators and people involved in large-scale corruption worldwide. This Act is therefore not directed specifically against human rights violations and corruption in Russia. On 20 December 2017 President Trump signed Executive Order 13818, which officially established the Global Magnitsky Sanctions regime, and the first listings under this regime were drawn up and published. Persons on this list are barred from travelling to the US and their assets in the US have been frozen in so far as they are known.

Following the example set by the US (the Sergei Magnitsky Rule of Law Accountability Act of 2012), the Baltic states imposed a travel ban on several people associated with human rights violations and corruption in Russia.

In preparation for its withdrawal from the EU, the UK recently adopted a new national Sanctions Act. It allows the introduction of a national sanctions regime similar to the US Global Magnitsky Human Rights Accountability Act.

At the end of last year, following the example of the Global Magnitsky Human Rights Accountability Act, Canada took action by amending the Special Economic Measures Act (SEMA) and the Justice for Victims of Corrupt Foreign Officials Act. This legislation now provides for a visa ban and asset freeze, for example.

What next? On several political occasions, I have made it clear that the Netherlands is interested in this kind of human rights legislation, provided it can be introduced across the EU. It will take time to win support for and set up an EU human rights sanctions regime that operates globally. Gaining the necessary unanimous support of the Council will certainly not be easy. In recent months, the views of other EU member states on a human rights sanctions regime have been canvassed. Some member states are cautious about sanctions regimes. Others do not have an official position,

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because such an instrument is not yet a matter of political debate in their country. Finally, some EU member states are positive about such a sanctions regime at EU level. After further diplomatic preparatory work, I intend to put forward a concrete proposal at a meeting of the Foreign Affairs Council.

Another option is to introduce sanctions legislation at national level. However, the government has serious questions about the effectiveness of national measures. After all, the single market and the free movement of capital within the EU would limit the impact of purely national financial sanctions against human rights violators (e.g. freezing their assets). Purely national visa bans are not very effective either, since the Netherlands is part of the Schengen area. At present, the government believes that the best approach is to continue focusing on an EU-wide regime.

In accordance with the motion submitted by Pieter Omtzigt and others, I will provide the House with further information in the autumn on the progress made at EU level. The Netherlands will in any event continue to actively pursue this route.