The Office of Foreign Assets Control (“OFAC”) added five more Russians to the Specially Designated Nationals List pursuant to the Magnitsky Act on February 1.

In a press statement, a senior State Department official noted that one of the officials had nothing to do with the murder of the eponymous Sergei Magnitsky, but rather was involved in Russia’s brutal war in Chechnya.

Sergei Magnitsky and the Magnitsky Act

The Magnitsky Act is named for Sergei Magnitsky, a Russian attorney arrested on trumped-up charges arising in retaliation for his exposing official Russian corruption in the course of representing of American investor Bill Browder.  Magnitsky died after being beaten by Russian police while in police custody and denied medical treatment despite his injuries and preexisting illness.

Browder’s book, Red Notice, is a captivating read.  It not only details the story of Magnitsky’s persecution and death, but is a stark reminder of what rule of law means.  Magnitsky’s murder was the culmination of an astonishing series of thefts, assaults, and lies reminiscent of the Keystone Cops of they weren’t so serious.  The overarching lesson is that when the organs of state are wielded by the caprice, avarice or malice of government officials, the individual is crushed.

Formally Title IV of the “Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012,” Public Law 112-208, § 401, et. seq., the Magnitsky Act describes Mr. Magnitsky’s death:

(7) Sergei Leonidovich Magnitsky died on November 16, 2009, at the age of 37, in Matrosskaya Tishina Prison in Moscow, Russia, and is survived by a mother, a wife, and 2 sons.

(8) On July 6, 2011, Russian President Dimitry Medvedev’s Human Rights Council announced the results of its independent investigation into the death of Sergei Magnitsky. The Human Rights Council concluded that Sergei Magnitsky’s arrest and detention was illegal; he was denied access to justice by the courts and prosecutors of the Russian Federation; he was investigated by the same law enforcement officers whom he had accused of stealing [his client Bill Browder’s] Hermitage Fund companies and illegally obtaining a fraudulent $230,000,000 tax refund; he was denied necessary medical care in custody; he was beaten by 8 guards with rubber batons on the last day of his life; and the ambulance crew that was called to treat him as he was dying was deliberately kept outside of his cell for one hour and 18 minutes until he was dead. The report of the Human Rights Council also states the officials falsified their accounts of what happened to Sergei Magnitsky and, 18 months after his death, no officials had been brought to trial for his false arrest or the crime he uncovered. The impunity continued in April 2012, when Russian authorities dropped criminal charges against Larisa Litvinova, the head doctor at the prison where Magnitsky died.

PL 112-208, § 402(a) (emphasis added).  Sergei Magnitsky was murdered, by the police, under orders from higher-ranking officials hiding their own or their conspirators’ massive theft and fraud, and the Russian legal system absolved all involved.

Congress made other “findings” in the Magnitsky Act:

(5) Systemic corruption erodes trust and confidence in democratic institutions, the rule of law, and human rights protections. This is the case when public officials are allowed to abuse their authority with impunity for political or financial gains in collusion with private entities. . .

(9) The systematic abuse of Sergei Magnitsky, including his repressive arrest and torture in custody by officers of the Ministry of the Interior of the Russian Federation that Mr. Magnitsky had implicated in the embezzlement of funds from the Russian Treasury and the misappropriation of 3 companies from his client, Hermitage Capital Management, reflects how deeply the protection of human rights is affected by corruption.(10) The politically motivated nature of the persecution of Mr. Magnitsky is demonstrated by—

(A) the denial by all state bodies of the Russian Federation of any justice or legal remedies to Mr. Magnitsky during the nearly 12 full months he was kept without trial in detention; and

(B) the impunity since his death of state officials he testified against for their involvement in corruption and the carrying out of his repressive persecution.

(12) Sergei Magnitsky’s experience, while particularly illustrative of the negative effects of official corruption on the rights of an individual citizen, appears to be emblematic of a broader pattern of disregard for the numerous domestic and international human rights commitments of the Russian Federation and impunity  for those who violate basic human rights and freedoms.

PL 112-208, § 402(a).  Congress other findings touching on Russia’s decline into Vladimir Putin’s private fiefdom as well, including the utter failure of the judiciary to restrain executive and bureaucratic abuse, and a list of prominent figures whose murders had gone mysteriously unsolved, who languish in prison on false charges, or who were subjected to torture.  (PL 112-208, § 402(a)(15).)

The Magnitsky Act’s substance is fairly straightforward – it penalizes those involved in or who benefited from Magnitsky’s death, and for other, similar acts by Russian officials.  (PL 112-208, § 404(a).)  The non-Magnitsky component requires the President (in practice some collection of State Department, Department of Justice and Treasury Department officials) to identify each person who:

(2) is responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals seeking—

(A) to expose illegal activity carried out by officials of the Government of the Russian Federation; or

(B) to obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections, in Russia . . .

The people listed – or “designated” in OFAC parlance – are ineligible for U.S. visas and have current visas revoked (PL 112-208, § 405), and have any assets with the slightest tie to the U.S. frozen (PL 112-208, § 406).

New Designees

Four of the five new Magnitsky Act designees come under the Magnitsky-specific portion of the Act.  According to the anonymous, senior state department official who discussed the new designations with the press:

Each Magnitsky list submission so far – and this is the fourth list submission – has included those officials directly related to Magnitsky’s death, but a smaller number of officials who are related to – who have been implicated in non-Magnitsky – non-Sergei Magnitsky human rights abuses. . .This is part of our overall policy. It reflects our support for human rights and our sense that human rights abuses are – those responsible for human rights abuses should be held to account.

The four new Magnitsky-related designees are:

Aleksey Anichin was the former head of the Russian interior ministry’s investigative department. He was – he had authorized the criminal case under which Sergei Magnitsky was originally arrested. Pavel Lapshov was the head of the interior ministry’s investigative department of organized criminal activity. He was – his investigative unit concluded that Magnitsky himself was responsible for the conspiracy which Magnitsky uncovered. Two of the others – that is, Urzhumtsev and Kibis – were involved in the posthumous prosecution of Magnitsky. You may remember that Sergei Magnitsky was put on trial again after he was dead, and they were involved in that case among other things – a very, even in this case, bizarre episode. I think there is more information publicly available about all of these officials.

The non-Magnitsky designee this time reaches back to the Chechen War.  The same senior state department official identified him as, “Yevgeni Antonov, who was then head of the Chernokozovo prison in Chechnya, a notorious place.”  Antonov “was implicated in the mistreatment – torture, really – of a Chechen human rights activist.”  In addition:

Quite apart from the particular case of the Chechen human rights activist, that prison was known to be a place where people were regularly tortured. That has been well documented by a number of human rights groups and there is abundant information available to the public about that. The victim was a Chechen human rights activist by the name of Zura Bitiyeva, who was arrested some years ago, kept in detention, badly mistreated. She was later released, and shortly after her release she was murdered by a group of unidentified uniformed men. But Yevgeni Antonov has been designated because he was the head of the prison when she was there.

The vast bulk of Magnitsky Act designees thus far have been sanctioned for their role in Magnitsky’s murder. Of thirty-nine designees, thirty-four arise from the Magnitsky murder.  They include, among others, interior ministry officials, investigators, fallmen, doctors, prosecutors, judges and prison officials.

Of the five non-Magnitsky designees, four arise from Russia’s brutal involvement in Chechnya.  In addition to Antonov, Umar Sugaipov was involved in assassinating a Chechen whistleblower’s bodyguard, and Chechen Deputy Interior Minister Apti Alaudinov and chief of presidential administration Magomed Daudov were connected with an attack on Chechen activist Ruslan Kutayev.

The last designee, Musa Vakhayev, was involved in murdering American journalist Paul Klebnikov.

Magnitsky Act Going Forward

There have been repeated efforts to make the second part of the Magnitsky Act – penalizing “extrajudicial killings, torture, or other gross violations of internationally recognized human rights” – applicable globally.

At the time the Magnitsky Act passed in 2013, there was some hope it would be applied more generally, but it fell through.  In September, 2015, Sens. John McCain (R-Ariz.) and Ben Cardin (D-Md.) proposed a bill to create a global Magnitsky Act but it has not progressed.

Even the existing Act could be doing more, though.  As Bill Browder said at the time of Russia’s Anschluss in Crimea and invasion of Ukraine in 2014, “[t]his is exactly what the Magnitsky Act was created for.”

In this long interview (if you have the time), Browder explains:

In addition to Ukraine, NPR’s Michele Kelemen pointed out that the British government recently concluded that Putin himself may have approved the assassination of Alexander Litvinenko in 2006.  Will the U.S. government sanction any Russian official involved in Litvinenko’s assassination, or any of the innumerable other explicit political assassinations perpetrated within and without Russia by Putin and his cronies?  Russia’s involvement in Syria may well have already given rise to yet more qualifying abuses.

It is admittedly a ticklish problem.  U.S. foreign policy is in such disarray that there is neither the appetite nor the ability to confront Russia.  Putin, on the other hand, can either continue to quiet existing problems (Syria) or if peeved stoke others.

Asked about this delicate balance, the State Department official said:

the United States Government is perfectly capable and has every intention of working with Russia on areas of common interest. Where we have them we are doing so and continue to intend – and intend to continue to do so. But at the same time, where we have differences and problems, we are capable of taking appropriate action.

It is a – U.S.-Russia relations are complicated, obviously, but we are capable of and have every intention of working with Russia. For example, we worked with Russia in the Iranian nuclear talks. Those talks were successful, and we were doing that at the same that our sanctions on Ukraine were intensifying. So both of our governments are, in fact, capable of working together in some areas and not in other areas.

When the disastrous Iran talks and utterly failed Ukraine sanctions are the model for successful U.S./Russia collaboration, there is plainly a problem.

Thus far, Russia has not responded positively to U.S. pressure from the Magnitsky Act.  As it had done after previous rounds of Magnitsky sanctions, Russia responded to last week’s designations by slapping reciprocal sanctions on five Americans, including former Attorney General Alberto Gonzales.  It is not clear what legal basis Russia claims, or whether Putin even bothered to fabricate a justification.  Given the underlying basis of the Magnitsky Act is to punish Russia’s brutality and restore for rule of law, it is no surprise Russia would respond lawlessly.

Despite the lack of progress, acquiescing to Putin murdering dissidents and whistleblowers is not in U.S. interests.  Aggressively sanctioning senior officials under the Magnitsky Act or passing and deploying a new global Magnitsky Act would make clear to Putin, his cronies and other would-be despots that the U.S. will not turn a blind eye to inhuman repression in Russia or elsewhere.

[Featured Image: Sergei Magnitsky via Wikipedia]

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