Brandon Silver, Irwin Cotler and Bill Browder

February 27, 2023

Over the past year, Vladimir Putin’s illegal and unjustified aggression against Ukraine has given violent expression to a wider authoritarian assault on the rules-based order and those who seek to defend it. Targeted sanctions have proven to be a powerful tool for pushing back against this century’s resurgence of industrialized human rights violations.

The visa bans, asset seizures, and business dealing prohibitions these sanctions entail are isolating the architects of repression, turning them into global pariahs and cutting them off from the financial flows that fund their strategic corruption and oppression.

These sanctions are also protecting Canadian sovereignty from the corrosive effects of corrupt foreign capital and ensuring our financial institutions and markets are not contributing to abuses abroad.

These are all measurable successes.

Canada’s 2017 Magnitsky Law was a game-changer. It broadened the implementing threshold for autonomous sanctions from “a grave breach of international peace and security… that has resulted in or is likely to result in a serious international crisis” to also include “gross and systematic human rights violations” and “acts of corruption.” Accordingly, we use the term “Magnitsky-style sanctions” to refer to actions taken pursuant to these post-2017 lower thresholds under both the Justice for Victims of Corrupt Foreign Officials Act (JVCFOA) and the Special Economic Measures Act (SEMA).

The adoption of this transformative law in 2017 means that out of the more-than 2000 targeted sanctions that have since been implemented, 428 of these are Magnitsky-style sanctions for human rights abuses and corruption.

Of a total of 35 Magnitsky jurisdictions, this makes Canada a leader in Magnitsky implementation – a close second to the United States and far ahead of every other jurisdiction. This is all the more admirable when you consider that we have a fraction of the resources. But there are still glaring gaps, and opportunities for growth.

As the Standing Senate Committee on Foreign Affairs and International Trade undertakes its 5-year review of Canada’s targeted sanctions laws, and the Canadian government is simultaneously building out its new Sanctions Bureau, this presents a propitious opportunity to chart a path forward. Accordingly, we offer ten recommendations for consideration:

• The government should call all human rights and anti-corruption designations “Magnitsky-style sanctions.” Much of the public discourse surrounding Canada’s targeted sanctions frameworks gets muddled, with confusion about the form and function of designations undertaken under the various laws. For both those who submit evidence and for our allies around the world, the communications strategy in government announcements regarding the implementation of sanctions should provide clarity in underscoring that they all produce the same effects and are implemented for similar acts of criminality. More important, the name “Magnitsky” has come to denote one of the defining human rights breakthroughs of our time, inspiring fear in rights violators and hope in the hearts of victims. It therefore also strengthens the global character and reach of these tools.

 

• Canada should establish an international contact group of jurisdictions with Magnitsky laws. The vast majority of Canada’s Magnitsky-style sanctions decisions, 79 percent, are undertaken autonomously and without structured cooperation among allies, despite the shared interests, values, and threats we all may be seeking to address. This can result in asset flight, with a sanctioned individual laundering their ill-gotten gains and conducting their business in another jurisdiction. It also lessens the significant rhetorical and reputational value, as a listing by any one country can be characterized as an anomaly among democracies rather than a measure of global progress in the pursuit of justice and accountability. With similar triggering thresholds anchored in international law, like-minded countries can implement sanctions simultaneously in a coordinated way, maximizing impact. Today, countries that have adopted Magnitsky laws are limited to informal bilateral conversations between sanctions units and occasional intelligence sharing on prospective targets. An international contact group would not only allow sanctions to be more effectively implemented multilaterally, it would provide a forum for the sharing of best practices and learning from the implementation of this relatively new legal mechanism. Further, many other legislatures are actively considering adopting their own Magnitsky laws, but often face immense oppositional pressure in their deliberations. Whether from internal special interests or malign foreign actors, these principled parliamentarians would benefit from the coordinated support of rights-respecting Magnitsky states. The proposed diplomatic coordination group could support states exploring the enactment of Magnitsky laws, including by sharing technical expertise in the legislative drafting process, important public statements, and parliamentary interventions that demonstrate leading economies’ support for such frameworks. Canada has a unique convening capacity and can help shape the global sanctions conversation by spearheading this multilateral coordination group. Canada would benefit immensely from a streamlined forum to encourage other states to adopt our designations and unified strategic interventions to bring more states into the Magnitsky fold.

 

• Domestically, we recommend that Canada take a whole-of-government approach to sanctions and create a single focal point to ensure coordination across departments, and among allies internationally. The governmental actors involved in Magnitsky designations are multifaceted, ranging from the Global Affairs staff who prepare the listings, to the Department of Justice that reviews the legality, to the Department of Finance and Public Safety personnel that help gather the relevant intelligence and enforce the sanctions. Regrettably, as in any bureaucratic structure, the many stakeholders involved can lead to silos and the slowing of an urgent process. Formalizing an intergovernmental task force to support the Sanctions Bureau in Global Affairs – with a central focal point – would ensure greater efficiency internally and also provide a single point of contact for allies. The United States interagency Task Force Kleptocapture provides an excellent model that could be applied to sanctions enforcement more broadly, and the State Department Office of Sanctions Coordination — headed by an ambassador, with authority to coordinate internally between different departments and internationally among allies — can serve as a source of inspiration for Canadian reforms.

 

• Canada should stand with the world’s most vulnerable victims, ensuring that implementation and analysis take into account equity and vulnerability. For example, an analysis that provides particular attention to inequities and the unique vulnerabilities of women, children, Indigenous, LGBTQ2IA+ peoples, and others identified in the National Anti-Racism Strategy would be an important addition to the policymaking process. It is all the more relevant in light of data demonstrating that Canada has not yet implemented sanctions in relation to crimes targeting most of these victim classes. In its public announcements, only 7 percent of Canada’s Magnitsky cases mentioned female victims, and just 1 percent mentioned children. None mentioned Indigenous or LGBTQ2IA+ people. A more refined analysis when crafting sanctions could help bridge the gaps and ensure greater responsiveness and responsibility towards the most vulnerable. LGBTQ2IA+ people are often the first targets of illiberal and authoritarian repression; attacks on Indigenous peoples are often a core part of broader assaults on ecological protections and on environmental defenders confronting climate change; and antisemitism is toxic to democracy and erodes the fundamental rights of all. Targeted sanctions could be a powerful tool for combatting hate against vulnerable groups, and thereby preventing atrocities. An analysis that considers these profiles would best advance Canada’s Anti-racism Strategy and feminist foreign policy, universal human rights, and our national interests.

 

• How the government announces these sanctions matters. Canada should provide more detailed sanctions announcements, and work with civil society partners and stakeholders to help strengthen this messaging. The press releases and public statements that accompany Canada’s targeted sanctions designations contain very little information about the nature of the crimes or its victims, an oversight that reinforces the perception of sanctions as a strictly financial issue rather than a human rights one. More specific information would amplify the impact of sanctions announcements and solidify public support for the system. Indeed, the “naming and shaming” components of sanctions – stigmatizing perpetrators while providing accountability for victims and elevating their voices – would be strengthened by such measures. At the same time, it could help support media freedom and civil society efforts on the ground by mitigating disinformation and providing credible data to pro-democracy and human rights campaigns. On a practical level, this shift would also provide critical data for Canadian civil society research and analysis to inform more effective and transparent policymaking.

 

• Canada should mainstream the use of targeted sanctions in specific cases of arbitrary detention and encourage other jurisdictions to strengthen this important precedent by doing the same. Canada can also amend our sanctions laws to specifically enumerate arbitrary detention as a triggering criterion, as JVCFOA does with victim classes such as whistleblowers and human rights defenders. Indeed, the policies, practices and legislative language relating to Magnitsky sanctions can help advance Canada’s foreign policy priorities. As we approach the second anniversary of the Declaration on Arbitrary Detention in State-to-State Relations, Canada can use its Magnitsky laws to give it teeth and thereby shift the calculus in hostage-taking. Based on a Magnitsky submission and advocacy from our Raoul Wallenberg Centre for Human Rights in the case of Vladimir Kara-Murza, Canada set an excellent example to be built upon in becoming the first-ever jurisdiction to impose sanctions on those directly involved in a particular arbitrary detention. At the G20 Leaders Summit in Bali in November, 2022, Prime Minister Justin Trudeau announced the designationof the 23 members of the Russian justice and security sectors, including judges, police officers, and prosecutors, who were facilitating Kara-Murza’s arbitrary detention in Russia.

 

• As Canada seeks to strengthen international justice and accountability mechanisms, we recommend amending our sanctions laws to expressly include a request from the prosecutor of the International Criminal Court, pursuant to the issuance of an ICC arrest warrant, as a trigger for consideration of a sanctions’ designation. If such a Canadian policy were emulated in a concerted manner by all ICC member states, 123 countries could become off-limits to suspects on the run. Just the pressure of financial and visa prohibitions from a few key states could lead to a change of heart and encourage the transfer or surrender of a suspect. This would also protect the integrity and credibility of the ICC from being undermined by impunity.

 

• Canada should reinforce the rules-based order and multilateral institutions by implementing sanctions pursuant to decisions of United Nations Special Procedures such as the UN Working Group on Arbitrary Detention and international treaty monitoring mechanisms such as the Committee Against Torture. In so doing, Canada would be demonstrating confidence in these institutions and the enforceability of international norms. We therefore encourage Canada to implement sanctions anchored in and informed by credible and impartial determinations of the independent expert bodies of multilateral institutions.

 

• Canada’s targeted sanctions must be more effectively enforced. The regulations designating these individuals and the consolidated sanctions lists that are used by Canadian banks and businesses to ensure compliance with the law must provide further identifying details. To improve enforcement, Canada must close glaring loopholes that have allowed sanctioned individuals and entities to bypass the effects of their designation. Enforcing sanctions requires heightened scrutiny on the executives and board of directors of a listed entity, to prevent them from simply starting a new company to evade sanctions while conducting the very same activities. As listed individuals often have their family members act in their stead, scrutiny of this wider circle of individuals must also be part of enforcement.

 

• Finally, the most important legislative refinement to our sanctions laws would enshrine the crucial oversight role of the public and Parliament. Some of the most impactful precedents and policies have been proposed by civil society and pursued by Parliament. Formalizing this relationship would only strengthen it. The public and parliamentarians should be able to petition the government to initiate a sanctions designation, repurpose assets, or mandate a fulsome explanation if the government declines to do so. Canadian parliamentary procedure provides precedent and guidance for such legislative oversight practices. For example, Order Paper Questions pursuant to Article 39 of the Standing Orders of the House of Commons have generally engendered substantive governmental responses within a mandated 45-day timeframe. The tabling of petitions from members of the public is also a well-worn parliamentary practice that elicits meaningful government engagement.Enshrining engagement from Parliament and civil society would strengthen Canada’s democracy and refine the function of its sanctions frameworks, fostering both a greater understanding from the public and more effectiveness in gathering evidence and ensuring enforcement.

Canada can be a global leader in protecting dignity and democracy by strengthening the use of targeted sanctions. These ten recommendations provide a pathway. In acting upon them, Canada can rise to the occasion at a moment in history that so urgently needs it. The safeguarding of peace, order and good government at home and internationally demands no less.

Brandon Silver is an international human rights lawyer and Director of Policy and Projects at the Raoul Wallenberg Centre for Human Rights. He oversees the Centre’s global Magnitsky advocacy program and co-chairs an international sanctions coalition of more than 375 NGOs. 

Irwin Cotler is a former Minister of Justice and Attorney General of Canada and longtime parliamentarian. He introduced the first Magnitsky Bill in the Canadian Parliament and was instrumental in the subsequent unanimous adoption and implementation of global Magnitsky legislation. He was honoured with the Sergei Magnitsky Human Rights Award in 2015.

Bill Browder is founder and CEO of Hermitage Capital, Head of the Global Magnitsky Justice Campaign and author of Red Notice and Freezing Order.