Yesterday the Canadian Senate passed the lengthily-titled Act to provide for the taking of restrictive measures in respect of foreign nationals responsible for gross violations of internationally recognized human rights and to make related amendments to the Special Economic Measures Act and the Immigration and Refugee Protection Act, more commonly known by its ‘short title’, Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).
The Act gives the government of Canada the authority to seize, freeze, or sequestrate the property of a foreign national in the event that the said foreign national does any of the following things:
(a) is responsible for, or complicit in, extrajudicial killings, torture or other gross violations of internationally recognized human rights …
(b) … acts as an agent of or on behalf of a foreign state in a matter relating to an activity described in paragraph (a);
(c) … is responsible for, or complicit in, ordering, controlling, or otherwise directing, acts of significant corruption. …; or
(d) … has materially assisted, sponsored, or provided financial, material or technological support for, or goods or services in support of, an activity described in paragraph (c).
On the face of it, this is all very fine. If people are responsible for “extrajudicial killings, torture, or other gross violations of internationally recognized human rights,” or for “acts of significant corruption,” then why should Canadians tolerate them? Aren’t sanctions against them a perfectly reasonable response?
It’s hard to argue against that. If one does, one appears to be saying that “gross human rights violations” and “significant corruption” are perfectly fine, which of course they’re not. So what could possibly be wrong with this Act?
Several things, as it turns out.
The first relates to how one determines what constitutes a gross human rights violation and who has committed one. If we are in a position of having to sanction somebody for them, that means that they are currently at liberty and haven’t been convicted of any such crime. So, in practice, the implementation of this Act will depend upon who the Government of Canada, for its own private reasons and through its own personal political logic, determines has committed such heinous acts and is worthy of punishment. The result will inevitably be selective application of the law based upon political, not human rights, considerations.
The second issue relates to the fact that the Act is legally unnecessary. Canada is a monarchical system. The Crown possesses considerable executive authority. If the Crown, in the form of Her Majesty’s Government, wants to impose sanctions upon somebody, it can already. It doesn’t need a Magnitsky Act to allow it to do so. In fact, the Canadian government resisted the idea of such an Act for quite a while on precisely those grounds.
So, if the Act isn’t actually needed for the Canadian government to pursue its human rights agenda, why has Parliament passed it? The answer isn’t what the Act’s supporters would have you believe.
Theoretically speaking, the Act doesn’t target citizens of any one state. It applies generally to citizens of all states. Superficially, therefore, it’s just an expression of Canada’s commitment to universal human rights. But only superficially. In reality, it’s a political document targetted at one country in particular – the Russian Federation. This is very clear not only from the short title with the words ‘Magnitsky Act’ in parentheses, but also from the Act’s preamble. This says the following:
Whereas Sergei Magnitsky, a Moscow lawyer who uncovered the largest tax fraud in Russian history, was detained without trial, tortured and consequently died in a Moscow prison on November 16, 2009;
Whereas no thorough, independent and objective investigation has been conducted by Russian authorities into the detention, torture and death of Sergei Magnitsky, nor have the individuals responsible been brought to justice;
Whereas the unprecedented posthumous trial and conviction of Sergei Magnitsky in Russia for the very fraud he uncovered constitute a violation of the principles of fundamental justice and the rule of law;
Whereas the Litvinenko Inquiry report, presented to the United Kingdom Parliament on January 21, 2016, found that two Russian agents, Andrei Lugovoi and Dmitry Kovtun, were responsible for the assassination of Alexander Litvinenko and that there was a “strong possibility” that they were acting on behalf of the Russian Federal Security Service;
Whereas Russian opposition politician Boris Nemtsov was assassinated outside the Kremlin on February 27, 2015, and to this day no thorough, independent and objective investigation has been conducted by Russian authorities;
Whereas member of the Ukrainian Parliament Lieutenant Nadiya Savchenko and other Ukrainians were illegally convicted and imprisoned in Russia in violation of international norms and fundamental justice;
Whereas it is important to acknowledge and remember Sergei Magnitsky’s sacrifice, as well as the sacrifice of other victims of gross violations of internationally recognized human rights;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Note how only one country – Russia – is listed as having committed violations of human rights, and only one country’s behaviour is given as a rationale for the Act – Russia. And note how only one other country is even mentioned, and in that regard as a victim of Russian maleficence – Ukraine. And then look at who sponsored the Bill – Senator Raynell Andreychuk, a prominent member of Canada’s Ukrainian community – and now you understand what this is really about. This isn’t about human rights throughout the world. Does anybody seriously imagine that human rights violators or corrupt officials anywhere in the world are going to be deterred because Canada is threatening them with sanctions? And does anybody seriously imagine that the Canadian government is going to use this Act to seize the property of human rights violators and corrupt officials from all countries with equal zeal? Does anybody actually imagine, for instance, that corrupt Ukrainian officials are going to suddenly find themselves at the receiving end of this Act? Of course not. That’s not the point. The point is simple – it’s to poke a finger in Russia’s eye, and to engage in some public grandstanding, by declaring that Russia is a vile, human-rights abusing monster, whereas Canada is a wonderful human-rights-defending paragon of virtue. We Canadians can then pat ourselves on the back because of our eminent goodness, while lending a moral hand to our wonderful friends in Ukraine in their struggle against ‘Russian aggression.’
‘So what?’ you may ask. What harm does it do? Isn’t declaring our values a worthwhile objective in and of itself? Well, yes it is, but only if we’re truly consistent in pursuing those values, not only in terms of our relations with foreign nationals but also in terms of our own behaviour. Double standards are dangerous. So too is self-righteousness. This Act reeks of both.
Let’s be clear here. I’m not saying that the Russian Federation is a bastion of liberty and good government. I’m not saying that horrible things don’t happen there. And I’m not saying that there’s not a lot of corruption in Russia. But if anybody imagines that this Act will somehow make things any better there, they’re kidding themselves. More likely, our self-satisfied projection of moral superiority will serve only to alienate others, and make them less rather than more inclined to listen to us. This won’t help to improve Russia-Canada relations; nor will it help end the war in Ukraine or help turn that poor suffering country into the model of Western-style liberal democracy this Act’s supporters no doubt want it to be. It’s grandstanding, pure and simple, and grandstanding never does much good.