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 Hague The Netherlands 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, Stef Blok, 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 Page 1 of 1 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. 1 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 Lilianne Ploumen, Parliamentary Papers 35000-V- 32) and/or the use of hunger as a weapon of war (in line with the motion submitted by MP Sadet Karabulut, Parliamentary Papers 35000-V-27), as 2 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. 3 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 Martijn van Helvert, Pieter Omzigt and Sjoerd Sjoerdsma). 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