[Joint House and Senate Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
115th Congress } Printed for the use of the
1st Session } Commission on Security and Cooperation in Europe
======================================================================
Combating Kleptocracy WIth
the Global Magnitsky Act
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
DECEMBER 13, 2017
Briefing of the
Commission on Security and Cooperation in Europe
------------------------------------------------------------------------
Washington: 2018
Commission on Security and Cooperation in Europe
234 Ford House Office Building
Washington, DC 205
202-225-1901
[email protected]
http://www.csce.gov
@HelsinkiComm
Legislative Branch Commissioners
HOUSE SENATE
CHRISTOPHER H. SMITH, New Jersey ROGER WICKER, Mississippi,
Co-Chairman Chairman
ALCEE L. HASTINGS, Florida BENJAMIN L. CARDIN. Maryland
ROBERT B. ADERHOLT, Alabama JOHN BOOZMAN, Arkansas
MICHAEL C. BURGESS, Texas CORY GARDNER, Colorado
STEVE COHEN, Tennessee MARCO RUBIO, Florida
RICHARD HUDSON, North Carolina JEANNE SHAHEEN, New Hampshire
RANDY HULTGREN, Illinois THOM TILLIS, North Carolina
SHEILA JACKSON LEE, Texas TOM UDALL, New Mexico
GWEN MOORE, Wisconsin SHELDON WHITEHOUSE, Rhode Island
Executive Branch Commissioners
DEPARTMENT OF STATE
DEPARTMENT OF DEFENSE
DEPARTMENT OF COMMERCE
[II]
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[III]
Combating Kleptocracy With
the Global Magnitsky Act
December 13, 2017
Page
PARTICIPANTS
Paul Massaro, Policy Advisor, Commission for Security and
Cooperation in Europe 1
Alex Johnson, Senior Policy Advisor for Europe and Eurasia, Open
Society Policy Center 3
Charles Davidson, Executive Director, Kleptocracy Initiative,
Hudson Institute 5
Rob Berschinski, Senior Vice President, Human Rights First 7
[IV]
Combating Kleptocracy With
the Global Magnitsky Act
----------
December 13, 2017
Commission on Security and Cooperation in Europe
Washington, DC
The briefing was held at 3:08 p.m. in Room 188, Russell Senate
Office Building, Washington, DC, Paul Massaro, Policy Advisor,
Commission for Security and Cooperation in Europe, presiding.
Panelists present: Paul Massaro, Policy Advisor, Commission for
Security and Cooperation in Europe; Alex Johnson, Senior Policy Advisor
for Europe and Eurasia, Open Society Policy Center; Charles Davidson,
Executive Director, Kleptocracy Initiative, Hudson Institute; and Rob
Berschinski, Senior Vice President, Human Rights First.
Mr. Massaro. Good afternoon, and welcome to this Helsinki
Commission briefing on ``Combating Kleptocracy with the Global
Magnitsky Act.'' My name is Paul Massaro, and I am the anticorruption
policy advisor at the Helsinki Commission.
This year the commission has been hosting a series of events on
combating kleptocracy, one of the central threats facing the OSCE
today. Starting with our event on asset recovery last June, we have
looked at combating energy corruption, the nature of kleptocracy in
Russia, the need for incorporation transparency at home, and Ukraine's
fight against corruption. Panelists at all events have agreed that this
is a pressing issue, but there are some reasons for optimism. The
Global Magnitsky Act is one of those reasons.
The term ``kleptocracy'' describes states where corruption has
supplanted the system of government. While we often associate
kleptocracy with states like Russia, it is important to note that there
are a number of states in the OSCE region that contain severe
kleptocratic elements. It is also important to note that behind every
act of grand corruption are individuals, often foreign government
officials and their accomplices, who trade the well-being of their
country for personal gain.
But kleptocracy is not just a problem for states where corruption
has taken hold. It is also a problem for states where the rule of law
is respected, like the United States of America. Without the ability to
stash ill-gotten assets in states where the rule of law is respected,
there is little reason to steal them. If your money was identified as
dirty, you could never spend it and it could simply be stolen by
another thief.
Lucky for kleptocrats, there is a large corruption services
industry in the West that is ready and willing to help hide that money
for a small cut, corroding the rule of law and democracy from the
inside while sustaining kleptocratic oppression. This oppression comes
in the form of massive human rights abuses, and disproportionately
targets those who attempt to expose corruption.
In kleptocracies, loyalty is rewarded by access to wealth and power
while whistleblowing is answered with trumped-up legal attacks,
imprisonment, torture, and sometimes even death. This was the case for
Sergei Magnitsky, who, after uncovering a massive fraud scheme
perpetrated by the Russian state, met a tragic end in a Moscow prison.
His story led to Congress passing and the president enacting the
Magnitsky Rule of Law Accountability Act in 2012.
This law established sanctions on those responsible for Magnitsky's
death, and for other gross human rights violations in Russia against
whistleblowers and human rights activists. Last year, Congress passed
an even more extensive version of this legislation, the Global
Magnitsky Act--which we'll discuss today--which authorizes the
executive branch to prohibit the worst foreign human rights offenders
and most corrupt officials operating anywhere in the world from
entering the United States, and to block their U.S. assets.
This law is a groundbreaking, modern tool in the counter-
kleptocracy toolbox. While most discussions of combating kleptocracy in
the United States revolve around domestic reform designed to make
assets more difficult to hide, or foreign reform abroad in order to
make assets harder to steal, rarely do we have the opportunity to
discuss the challenges and opportunities of sanctioning those who are
engaging in or facilitating gross acts of corruption.
I am glad to have such a distinguished panel with me today to
discuss this revolutionary piece of legislation in the fight against
kleptocracy. Alex Johnson, to my right, is the current senior policy
advisor for Europe and Eurasia at the Open Society Policy Center, which
seeks to expand citizen engagement and ensure human rights while
building transparent and accountable governments around the world. He
is also a close friend and former colleague at the Helsinki Commission,
where he served as our representative to the OSCE in Vienna. Alex is an
expert on the OSCE region and served as special advisor for Russia and
Ukraine at the Department of Defense between working for us and taking
his current job.
Charles Davidson, to my left, is the executive director of the
Kleptocracy Initiative at the Hudson Institute, which has been in the
vanguard on combating kleptocracy and produced extensive research and
reporting on the issue. Charles was the first to the scene among those
of us fighting kleptocracy and built much of the intellectual
foundation toward the issue that we take for granted today. He has
become something of a household name at the commission and is a
frequent contributor to our work. This will be the third time that he
is on a commission panel this year. [Laughs.] He previously
participated in our panel on asset recovery and as a witness in our
hearing on combating corruption with incorporation transparency.
Finally, Rob Berschinski is the senior vice president for policy at
Human Rights First, which pushes for the U.S. Government and business
community to respect and defend human rights and the rule of law. Rob
previously served as the Deputy Assistant Secretary of State for
Democracy, Human Rights, and Labor at the Department of State, and was
responsible for overseeing human rights policy throughout the OSCE
region. He is intimately familiar with the Global Magnitsky Act, having
coordinated the work of a coalition of human rights and anticorruption
NGOs to develop a list of designees to be targeted under the act, which
was provided to the administration in the form of a letter and
accompanying package of materials.
Thank you all so much for being with us here for this important
discussion. I would like now to pass the floor to Alex Johnson, who
will kick us off. Alex.
Mr. Johnson. Thank you, Paul.
Our conversation today is particularly timely. On December 10th we
recognized International Human Rights Day and, just before that,
International Anti-Corruption Day. Both days are inseparable in my
view, because government corruption fuels human rights abuses.
Corruption and kleptocracy enable human rights abusers to generate
challenges throughout the OSCE region. Additionally, the Commission on
Security and Cooperation in Europe is a critical player in overcoming
some of these challenges.
So I want to thank the U.S. Helsinki Commission for its continued
leadership in combating kleptocracy in the 57 participating States of
the OSCE, in addition to the efforts of the political leadership,
particularly in the OSCE Parliamentary Assembly, and the expert
contributions, of course, of staff, like Paul, to U.S. delegations at
countless OSCE proceedings, where they've been truly impactful in
really advancing principles around democratic governance and countering
corruption.
As Paul mentioned, I spent a number of years working on the
commission staff, and it was the honor of my career. And I now lead
advocacy for Europe and Eurasia at the Open Society Policy Center,
where I am engaging quite frequently with many of the victims of
corruption throughout the region.
So the passage of the Global Magnitsky Human Rights Accountability
Act as a part of the 2017 National Defense Authorization Act embodies
the refinement of smart sanctions against those who seek to do harm,
while also reflecting a culmination of democratic governance
commitments in the Helsinki process. Kleptocrats think their power and
influence can buy them anonymity. Fortunately, the evolution of new
tools for investigative journalism, including expansive data resources
and the ubiquity of social media, have shed light on many more cases
for investigation. International institutions, like the OSCE, must
capitalize on this emerging era of unprecedented access to information
to stop corrupt officials and human rights abusers in their tracks.
I wanted to really just lead with a few recommendations that I
think are relevant for this particular briefing here today. So, one,
more cases for investigation. We'll hear more from our distinguished
colleagues on the panel, who will speak to some of the cases that were
advanced by civil society and are currently under review by the Trump
administration to name particular individuals under the Global
Magnitsky Act. And as it stands, we hope that the Trump administration
swiftly adjudicates these recommendations, and that there is an
exploration of even more in subsequent tranches.
Additionally, other recommendations, too: Engaging European allies
and partners to adopt national Global Magnitsky measures. Many of you
know the United Kingdom, Estonia, and most recently Canada have adopted
measures with some Global Magnitsky components, largely focused on
Russia, many of which focus on visa bans exclusively. Lithuania and
other countries are exploring similar action. It's really important
that members of Congress, and U.S. experts, encourage their European
interlocutors and partners to adopt measures up to the full scope of
the Global Magnitsky Act, beyond the visa bans, but also asset freezes
and other requirements. And they should do that within their national
parliaments. In addition, a similar action should be taken at a
European level. The European Union should also pursue its own version
of a Magnitsky Act, and potentially a Global Magnitsky Act.
Another key point is global philanthropy and other resources are
important in sustaining investigations into human rights abusers and
corrupt officials. Some elected officials have been questioning the
very notion of global philanthropy and foreign assistance in OSCE
participating States. It's really important to recognize that private
philanthropy from across the political spectrum has found common ground
in advancing democratic governance by supporting civil society actors
and the independent media to expose corruption. It's really important
that this continues.
Now turning to some of the institutional measures with the OSCE,
it's important that civil society has a stake and a place at the table
in terms of OSCE proceedings. The OSCE's human dimension implementation
meeting benefits from robust, expert, and civil society access. The
similar parallel of the economic and environmental forum process, as
well as the economic and environmental dimension implementation
meeting--which is new as of 2011--should benefit from the same level of
access of outside experts, NGOs, and experts who can really combine
this expertise on countering corruption.
I would say my last core recommendation is establishing a thematic
mission of the OSCE, focused on implementing anticorruption provisions
of OSCE commitments. There's been an erosion within the OSCE region
with the closure of a number of field operations, which have long been
the jewel in the crown, you could say, of OSCE activities, and focused
on implementing commitments. And some of the mandates of the existing
field operations have been scaled back. It's really important to
develop a thematic mission in order to overcome some of the politics
associated with these field missions and allow an elite unit to operate
above those politics and address corruption throughout all of the OSCE
participating States.
A few more remarks. Just to note a little bit on the history of the
OSCE and to level-set our conversation here and leave some time for our
colleagues, who have gathered--the OSCE is really one of the few
multilateral institutions that bridges human security interests in the
Northern Hemisphere. As such, it's a venue to evolve and advance
international norms toward transparent democratic governance. As a
regional entity, it can expand political will to address problems of
corruption that are often regional in nature, such as the 2014 exposure
of the Russian Laundromat scandal, where billions were exposed coming
from Russia and funneled through Eastern Europe and various banks, and
then onward to the rest of the world. So it's very important that there
are regional mechanisms that can address these regional problems.
I just wanted to mention one particular commitment that's
important in recent memory that shapes a lot of the activity today in
the OSCE. In 2012 at the Dublin Ministerial Council, foreign ministers
from all participating states agreed to a declaration to strengthening
good governance and combating corruption, money laundering, and
financing of terrorism.
So under that mandate, there was substantial activity and really an
increase of cooperation outside of the OSCE institutions to develop a
handbook on combating corruption that came out last year. It's an
important resource that brought in expertise from the United Nations
Office on Drugs and Crime, the Organization for Economic Cooperation
and Development, and also the Council of Europe Group of States Against
Corruption. This handbook on combating corruption is a good place to
start at looking at how we identify potential individuals who should be
individuals banned for visas or other asset freezes under provisions of
the Global Magnitsky Act.
With that, I will conclude and look forward to having a discussion
regarding some of the other priorities in the region. But I would say
that the Global Magnitsky Act is broadly applicable. There are even
stories that have broken recently with regards to Moldova, to
increasing challenges in Ukraine where there's potential backsliding
for the forces and institutions that are moving toward reform for
corruption. Additionally, there are numerous challenges in central
Asia, be it in Uzbekistan or Turkmenistan. And I'm happy to discuss
various cases and other recommendations in that regard during our open
discussion.
Thank you so much.
Mr. Massaro. Absolutely, Alex. Thank you. I couldn't agree more
that human rights and anticorruption are inseparable. Thank you so much
for your general recommendations of bringing more cases, having other
national governments implement Global Magnitsky provisions, and also
enabling foreign assistance for civil society and other countries, as
well as your really in-depth OSCE knowledge. I think that that's one
incredible contribution that you can make to this panel is, having
worked with the commission and been in Vienna, you know the nuts and
bolts of the OSCE. A lot of what you just said is related to what we
were just talking about last week at the Vienna ministerial. We talked
to a lot of ambassadors and the Secretary General about thematic
missions. We brought up the idea of anticorruption mission. And I think
there's a lot of support for something like that. So we'll continue to
push that, and I hope something like that goes forward.
I'd like now to hand the floor to Charles Davidson, please.
Mr. Davidson. Well, thank you, and thank you, Paul, for your
extremely kind introduction. It's a pleasure to be here with Alex and
Rob.
Paul asked me to address the specifics of the Global Magnitsky Act
before I made some other more general comments. This is sort of a fun
one, in a way, because this is a bill that one can summarize the
essential of in just a few words. It gives the U.S. Government--Paul
will correct me, and others, if I make any mistakes--but it gives our
government the power to exclude from our territory, in other words visa
ban, and freeze, or potentially seize, the assets of any non-U.S.
person whom we deem to be corrupt, who has been a government official.
And then there's some other qualifiers.
But that's pretty much it. It also gives us the power to go after
not just the government official or senior associate of such an
official, but also anyone who has materially assisted, sponsored, or
provided financial material or technological support to the government
official or senior associate who has committed this act that we deemed
to be corrupt, or acts we deem to be corrupt. So we're not just
empowered to go after what one might think of as the prime targets of
this bill, but also the enablers, as we call them, of this corruption.
So it's a very broad and powerful law.
In the hands of Rambo, you could really go to town with this thing.
If we have a president who really wanted to swing this bat, there's a
lot of assets that could be frozen, lots of apartments in New York and
Miami, this, that, and the other. And it could be huge. So just its
existence, of course, is a considerable deterrent.
Now, we're focusing on kleptocracy today. So let me then, for the
rest of my remarks, focus exclusively on Global Magnitsky in the anti-
kleptocracy context. When we're talking about kleptocracy, from the
standpoint of my program at the Hudson Institute, we're not so much
interested in just kleptocracy and corruption, but really the growth of
authoritarianism and the decline of freedom and democracy around the
world. Then we've noted that all these authoritarian regimes, that are
such a threat to freedom and democracy--well, they happen to be
kleptocracies. So I'm thinking of Global Magnitsky as being a pro-
freedom act also, not so much just an anti-kleptocracy act. And I like
to think of it in those broad terms. And this issue of growing
authoritarianism and declining freedom around the world is absolutely
critical, as we know. So this is a very important and new tool in our
arsenal for fighting back against the growth of authoritarianism. Sorry
if I was a bit redundant there.
Now, another thing Paul asked, then, to comment on is, well, we
have special situations. We have countries with whom we have a positive
relationship--in other words, countries that are not identified as
rivals, but say a country we're trying to fix that has kleptocratic
elements--and in those cases, how do we think of the Global Magnitsky
Act as a positive tool? I would in those cases--and I can't mention any
names, so this is going to be a bit euphemistic, but to this crowd we
kind of know who one might be thinking of--I think one characterization
we could use is thinking of it as political surgery. So Global
Magnitsky, we're going after one person or a small group of
individuals, but it's the way the law's written. It's going after an
individual. So, if we are dealing with a regime that we think has
serious corruption problems, we can make political judgments. I hate
the term ``decapitate'' because that sounds kind of violent or
something, but we can go after what we think are the possible political
inflection points among the most corrupt elements, the leading
corrupters in a given country. We can go after the enablers of those
leading corrupters. You don't need to put everybody in jail. The whole
idea of criminology is you put one or two people in jail and the other
people get the idea. I mean, here we're not putting people in jail, but
we're visa banning and freezing assets.
For that matter, be it countries we have a positive relationship
with or not, what we see and what we know is that grand corrupt
elements, kleptocrats, really like to enjoy the freedoms and the
pleasures, and especially the rule of law and the asset protection,
that Europe and the United States and our allies provide. So if we're
able to leverage, as Alex was referring to, Global Magnitsky so more of
our allies adopt this, we can have a tool that can be really very
powerful. And the more political coordination there is with other
countries, the more powerful this can be at pushing back against
kleptocracy.
The last thing I'd like to mention is the whole notion of
kleptocratic corruption being exported into the West, because this is
something we've been emphasizing a lot recently. It's an important
notion, that when people come to the West for asset protection and
other services and we welcome them, they bring with them their mores,
their ways of doing things. It's not just money. There's a lot that
comes with it.
So let's take in particular a country where we have a positive
relationship with them. The kleptocratic pollution that's coming in is
bad for us. Global Magnitsky enables us to counter that. If we have
specific cases, for that matter, of certain individuals whom we deem to
be particularly negative within our shores, we can use Global Magnitsky
as a tool of political surgery to not let them enjoy the fruits of
freedom and the punch bowl that we have been perhaps too happy to
provide.
Thank you.
Mr. Massaro. Absolutely, Charles. Extremely eloquent, as always. I
love your terminology: pro-freedom act, political surgery. You know, if
that's all you were contributing to the discussion it would be enough,
you know? [Laughter.] But thank you so much. I really appreciate it.
So we're turning right, to Rob Berschinski. The floor is yours.
Mr. Berschinski. Thanks, Paul, for having me.
As Alex mentioned, we are meeting at a particularly timely moment
right now--not only for the reason he mentioned, but also because,
while I can't speak on behalf of the administration, signals are that
the administration is going to release its first tranche of sanctions
designations within the next week or so. I can say that, working with
human rights defenders and activists around the world, there's a lot of
eager anticipation around the Trump administration's first decisions
under the law.
Robustly implementing the Global Magnitsky law is seen as crucial
by activists abroad. Notwithstanding recent rhetoric and policy from
the administration that, at least in my view, has severely damaged
America's image as a leader on human rights and in efforts to fight
corruption, I can assure you from my conversations that many men and
women laboring under repressive and kleptocratic governments around the
world still view the United States as a beacon. They view our
government, empowered by Global Magnitsky, as an actor able to stand up
for what is right, able to protect the vulnerable, and able to
challenge those who otherwise act with impunity. So we will soon see
whether these hopes are well founded.
Robust implementation of the law is also important for activists
within the United States. Proponents of the law at home see in Global
Magnitsky a tool that the U.S. Government can use to shine a bright
light on murderers, torturers, and rapists, as well as those that steal
brazenly from their own citizens--and, as my colleagues mentioned, to
deny these actors travel to the United States and the ability to use
the proceeds of their ill-gotten gains via our financial system. Many
of us also see the advocacy around the law as an avenue to accomplish
some of these effects even without the U.S. Government, acting as NGOs
even when the U.S. Government doesn't necessarily take action on any
specific case.
Recognizing this important potential, shortly after the law was
passed last year a number of leading, largely but not exclusively U.S.-
based human rights and anticorruption NGOs came together in an effort
to provide the executive and legislative branches of the U.S.
Government with recommendations on individuals that we felt warranted
additional investigation and a look by the U.S. Government for
potential sanctions under the Global Magnitsky Act. We did this in
accordance with the law's Section 1263(c)(2), which directs the
president to, quote, ``consider credible information obtained by other
countries and nongovernmental organizations that monitor violations of
human rights.''
I just want to pause to acknowledge the importance of this
provision, which serves as a reminder that Congress views the role of
nongovernmental watchdogs as integral to Global Magnitsky's success.
For this, to my hosts here at the commission--[laughter]--I'd like to
offer a note of thanks on behalf of many of my NGO counterparts and
activists around the world. The law really is something of a model in
terms of how NGOs, the legislative branch, and the executive branch can
operate as one in order to achieve U.S. policy aims and advance human
rights and fight against corruption around the world.
I also want to briefly highlight the proactive outreach to civil
society over the course of the year initiated by officials at the
Departments of State, Justice, and Treasury, as well as members of the
White House National Security Council staff. I see a few of my former
State Department colleagues lurking in the back and wanted to give them
a shout-out. The administration has done what I think is an admirable
job of consulting with civil society over the course of the year.
Turning to the process that some of us in civil society undertook
regarding making sanctions designations recommendations, I want to
offer four or five thoughts.
First is that one of Global Magnitsky's greatest strengths--its
global reach--is in some respects also what makes it complex to
implement, at least in a maximally coherent way. Unfortunately, gross
violations of human rights and acts of significant corruption abound
across the world, as Charles was talking to. One stat I read just this
morning is that the U.N. estimates that roughly 5 percent of global
economic activity--so this is a figure that is in the trillions of
dollars--is lost to either bribes or loss related to skimming off the
top. In the context of Global Magnitsky, this raises the fundamental
question of where do we begin.
Accordingly, in choosing would-be targets, the U.S. Government
would ideally have in place a process to think through criteria for
designations that go beyond the fundamental, essential question of has
the evidentiary threshold to designate someone been met. Additional key
questions that the U.S. Government could ask itself include: First,
whether a designation will have impact beyond the specific individual
or individuals sanctioned, either by deterring others from similar
conduct, or by sidelining a particular actor or group of actors--and I
think this is a point that's very relevant to today's conversation;
and, second, whether a particular designation or set of designations
would reinforce the idea that the United States views accountability
either on the human right side or the anticorruption side in a way that
should be advanced globally, including with respect to even our
partners and allies, or whether our government is only going to pursue
these actions in the context of countries with which we have bilateral
disagreements--again, particularly relevant in the OSCE context.
So, with these questions in mind, those of us in the advocacy world
decided early on that we wanted to provide the U.S. Government with a
list of recommendations that not only involved would-be sanctions cases
that we felt would have important ramifications, but that were also
geographically dispersed, mixed between regional powers and smaller
states, with little distinction between international friends,
competitors, and enemies. As I mentioned, it remains to be seen whether
the U.S. Government will adopt the same approach if and when it
releases this first tranche of designations sometime in the near
future.
The second point I want to offer is that Global Magnitsky's high
evidentiary standard has implications for how civil society makes
recommendations moving forward. Sanctions are, of course, an
administrative tool rather than a judicial remedy. They're ultimately
about policy and behavior modification, not necessarily achieving
justice--though they have a justice component to them. That said,
before taking an action as significant as blocking someone's assets,
the U.S. Government must have confidence that its determination will be
held up in a court of law if it's challenged. This results--and I would
say appropriately so--in a high evidentiary standard needing to be met
before any particular designation is made.
For those of us working on the outside to expose corrupt schemes,
what this often means in practice is that only in rare circumstances
are we actually going to be able to deliver all the information that
the United States Government might need to make a designation--for
instance, the quid pro quo of a corrupt act, rather than a description
of circumstances that the government should then investigate. Except in
rare cases, activists and investigative journalists may be able to
point to a compelling pattern of behavior worthy of further
investigation, but are not necessarily going to be able to produce the
smoking gun. That's where, with the tools at its disposal, the United
States Government will need to pick up the case. Nor, I should add, are
we compelled to do so under the law in whatever we make public.
Third, and related to both of the above points, activists are still
thinking through the relative pros and cons of using public naming and
shaming as a tool under Global Magnitsky, as opposed to making quiet
recommendations to the U.S. Government. Being public in recommendations
has pretty obvious upsides. Doing so puts corrupt actors and human
rights violators on notice that they're being watched. It creates doubt
in their minds as to whether they'll be able to carry on their acts
with complete impunity. It raises the potential that foreign
governments might sideline certain actors viewed as pariahs. It
certainly provides some element of satisfaction to victims, if not,
again, actual justice.
Lastly, those who argue for public recommendations note that the
audience for such declarations is twofold. It's not just the would-be
designees or the governments of the countries of which they're citizens
or where they reside, but also the U.S. Government. What being public
does is highlight to the U.S. Government that civil society knows that
these cases are out there and wants the U.S. Government to investigate.
While the law is clear that the U.S. Government doesn't need to make
any designations, even if the evidentiary standard is met, at that
point public declarations from civil society can force the issue around
political will around designations on behalf of the U.S. Government.
There are, however, at least two important downsides to public
naming and shaming that I think are worthy of serious consideration.
The first of these is the reality that those publicly recommended for
sanctions by NGOs may avail themselves of the opportunity to move or
hide their assets prior to actual designations, and we shouldn't
discount that. Also relevant is the very real potential that figures
that are often wealthy and quite powerful, and who have also at times
been known to employ American enablers, will fight back. Human rights
and anticorruption advocacy at the level of individual naming and
shaming is a serious business, and the potential for harassment and
attempted silencing of those engaging in this activity is quite real.
The same goes for manipulation of recommendations. One difficulty
in dealing with information and allegations brought forward by certain
actors, particularly on the corruption side of the law, is that there
can be a fine line between those with inside information by way of
being a legitimate whistleblower and those that perhaps were engaged in
some form of corrupt act, and that's how they came by the information.
I think we've already seen play out a little bit over the course of
2017 a little bit of initial discussion by actors that might be in the
middle of corrupt acts within their countries trying to play out
through the press finger-pointing against one another.
This brings me to my last point. Thank you for bearing with me.
Beyond its worldwide reach, a major innovation behind Global
Magnitsky is that, as Charles alluded to with that great term
``political surgery,'' it's a policy scalpel and not a mallet. By
allowing the U.S. Government to target individuals, the law allows the
potential for a nuanced policy that signals strong disapproval of
certain actors and their actions without necessarily suggesting or
initiating a complete breakdown in bilateral relations between the
United States and a foreign government.
An illustrative example of how this dynamic might work in practice
is one I'll draw on the human rights side of the law, not the
corruption side. This relates to atrocities that have been in the news
with regularity recently related to the Burmese Government's attacks on
its Rohingya minority population. One can use Global Magnitsky
sanctions on certain military commanders in a way that would sanction
them and perhaps play a role in sidelining them, while continuing to
differentiate them from members of Burma's civilian government.
I can use a historical example to give a sense of how Global
Magnitsky could be used in a similar way on the corruption side by
referring to an episode back in 2014 in Hungary. In the fall of that
year, the U.S. Government applied visa bans on a handful of Hungarian
businesspeople and government officials implicated in a corruption
scheme related to misuse of value-added tax reimbursements. In that
instance, the visa bans were implemented under a separate authority,
Proclamation 7750, which allows for the suspension of entry of persons
into the United States ``engaged in or benefiting from corruption.''
That action sent, to my mind, an appropriately strong but targeted
signal to the government of Hungary about how the U.S. Government views
corrupt acts committed in an absence of accountability, irrespective of
whether those acts were undertaken by individuals in an allied
country--again, an OSCE participating State and also a NATO member.
It's my hope that that example can serve as a model for actions under
Global Magnitsky moving forward in the OSCE region and beyond.
Thank you.
Mr. Massaro. Thank you so much, Rob. And thank you for emphasizing
both this exchange of information and cooperation between government
and civil society. To me, that's what the Helsinki Commission is all
about. I actually just at 12:00 today was at the anticorruption
advocacy group--a group of 187, I think we are now--civil society
organizations that come together. I want to hear what every single one
of them has to say and what all needs to be done.
It's amazing to me that we are the type of country that puts this
in legislation, right? [Laughs.] That's who we are, it's part of U.S.
Code that we reach out to civil society, and that is extraordinary.
That is not normal in history, and it's amazing that we're here.
That gets me to that second point of a beacon of hope, because to
me that's what it's really all about. When we fight kleptocracy, I
think everyone on this panel would agree--I know Charles would because
that's what he's all about--is fighting back against this corrosive
influence that is essentially pushing us to betray our values, to put
short-term financial gain over ideals, and strive for what we should be
and what we could be, which again is that beacon of hope for the rest
of the world.
So, with that in mind, I'd like to move to a point you made about
U.S. enablers. I think that U.S. enablers are one of the most
problematic elements of the kleptocratic equation. There is no
kleptocracy without us, you know? [Laughs.] Last week, or earlier this
week actually--all the time is flowing together--I met with a man named
Paul Ostling. He says he's whistleblower. He blew the whistle on
Brunswick Rail, which is a Russian company. He saw them engaging in
financial fraud. Then he moved back to the United States. He is now
under extensive lawsuits by the U.S. court system, by companies hired
by Russian interests.
He's telling me, ``I'm almost bankrupt. I don't know what I'm going
to do. I don't know how to defend myself under this.'' I think that
that sort of thing happens quite often. I wonder, when we talk about
facilitators, when we talk about U.S. court systems and being used to
facilitate kleptocratic interests or law firms, creating shell
companies, money laundering, and things like that, to what extent can
this law be used to combat that element of it?
Rob, if you'd like to take the first hit at that, and we can move
to the right.
Mr. Berschinski. So on the final part of your question, a lot of
that is beyond my area of expertise, and I would defer to Charles, who
may have more to say. What I will say is that Global Magnitsky is not
sufficient to the task at hand. What it does is, it tells foreign
actors that their ill-gotten gains are not welcome in the U.S.
financial system if they are designated. I mentioned in my remarks this
question is a completely valid and difficult question to reconcile, one
that we're still working through in civil society, of do we want to
maximally name and shame in order to put corrupt actors on notice, with
the potential downside that they would move their money?
I think there's a great interest in actually blocking assets, in
freezing assets. But at the same time, I would suggest that probably
the strongest argument one could make that the benefits of publicly
outing individuals, even at the risk that they have time to move their
money before the U.S. Government actually sanctions them, is that at
the end of the day what's more powerful than freezing the assets is the
moral message that the U.S. financial system will not be used for the
proceeds of kleptocracy. If actors that feel that they are going to
ultimately be sanctioned take the initiative to move their money out of
a rule-of-law-based system and back into a lawless system, that's on
them.
There's a reason why whether you are Russian or Ukrainian or
Azerbaijani or Central Asian, you want to move your money into the U.S.
financial system because we enjoy the rule of law. We should not allow
those actors in the system. So that's point one. And just quickly, that
said, to your point, Paul, this law is necessary, but not in the least
bit sufficient. As we know through the Panama Papers and other massive
exposes by investigative journalists, for all of what I just said the
U.S. financial system is--to say nothing of New York real estate, where
I live--a direct beneficiary of much of this money. There is little to
nothing under Global Magnitsky that is going to change that.
Mr. Massaro. Well, that's very helpful. Let me follow up with,
could you name and shame a law firm? Could you name and shame a bank?
Could you name and shame actors like that--not necessarily corrupt
officials?
Mr. Berschinski. So journalists and anticorruption activists, the
tools we have at our disposal are essentially our credibility, right?
At the end of the day, it's the U.S. Government that designates. I
represent a human rights organization, not an organization that focuses
on corruption narrowly defined. But when you're talking about groups
like Global Witness or Transparency International or the consortiums of
journalists that have put out these explosive stories in recent months,
they need to get their facts right. That's the most important thing.
But to the extent that there are indisputable facts and information, I
think that sunlight is a great disinfectant.
Mr. Massaro. Excellent. Charles, do you have anything to say to
that?
Mr. Davidson. Well, I don't have anything to say, but I'm going to
try to say just a little something there. Just highlighting this part
of the act that I mentioned earlier, where we are able to target so-
called enablers, people who are not the direct perpetrators but who
have helped them. I think they could be anywhere, these enablers, the
way I read the act. Is that correct, Paul? I think so.
So you could think of the plight of this gentleman who is being
sued by people who he's blown the whistle on and all of that. Given the
NGO component in the actual process of identification that Global
Magnitsky gives, one could think about the NGO community that is
respected by our government mobilizing in a case like that. I don't
know if the Helsinki Commission can make discreet introductions or
indiscreet, I have no idea. But one could try to turn the forces that
way.
All we'd need is one case like that. Really, one case and it would
completely change the mentality, the more major the law firm the
better. In related areas, there was a major law firm that was called
out recently. And the political tide really is kind of turning. So now
would be a good time. If we could have one case like that, it would be
great.
Mr. Massaro. Discreet or indiscreetly. [Laughter.] Got it.
Alex?
Mr. Johnson. On this particular question I really support what my
colleagues have already said. I think it's important to recognize--and
I've tried to emphasize this in my opening remarks--that corruption is
everywhere. It's here in the United States. It's throughout the
entirety of the OSCE region. So looking at empowering civil society and
other multinational institutions with mechanisms to hold even the
United States to account in its role in enabling some of this
corruption, it's very important.
Mr. Massaro. Excellent. Well, thank you so much. I'll ask one more
question, then we'll open up questions to the audience. So please start
brainstorming.
I wanted to bring up a piece that I read recently by one Karina
Orlova, who I believe you know well, that discussed sanctioning Putin's
propagandists, the idea that you could go after individuals who had
been essentially putting up enormous amounts of disinformation or lies.
The base of the question comes down to this: Could you foresee
sanctioning individuals that are spreading disinformation and lies,
under this act? To anyone who'd like to take it.
Mr. Berschinski. I'll start on that. First, it's worth remembering
that the two prongs of the Global Magnitsky Act relate to gross
violations of human rights and acts of significant corruption. So, as I
understand it--and I am familiar with the article if not all the
particulars--Global Magnitsky would not apply. Gross violations of
human rights as interpreted by the U.S. Government essentially relate
to extrajudicial killing, torture, murder, rape. While acts of
significant corruption are still somewhat yet to be determined, at
least as relates to the act, because it hasn't been implemented yet and
the Russian version of the law is slightly different than the global
version of the law. But nevertheless, it doesn't sound like any of
those particular acts would be captured under Global Magnitsky.
I should also add that as a representative of a human rights
organization, I think we need to be very careful as we approach
questions of sanctions or any sort of policy activities that could be
seen as retribution against speech. And that is no defense whatsoever
of disinformation, which I personally feel is a cancer eating at the
soul of democracy right now. But we just need to tread very carefully
in this space, lest we provide fodder to autocratic governments out
there that will use any excuse in order to clamp down even further than
they have on free speech.
Mr. Massaro. Anybody else like to take that? Yeah, if you'd like
to.
Mr. Johnson. Well, I agree with Rob, full stop. I think this does
not apply in a case like that, that the scope of the law is too
limited. To reiterate Rob's point regarding how this is not sufficient
to the task at hand, that would have to be carefully treaded, that when
you start to regulate speech and proceed in that particular direction.
As it stands, there are so many cases that could be adjudicated under
the current provisions.
I didn't have an opportunity to mention it during my opening
statement, but just earlier this week the Organized Crime and
Corruption Reporting Project broke a story about questionable financing
of an apartment and expenses for a judge's daughter in London. This is
kind of a pattern and a case of a number of officials from throughout
the OSCE region who have children studying in Western Europe and other
places where there are so many legitimate cases even within this narrow
framework that we should be pursuing and daylighting and supporting the
capacity to bring to bear, before we even, I would say, touch going
into some of these more problematic spaces.
Mr. Massaro. Definitely. Thank you, Alex.
So questions, please. No questions? Orest.
Questioner. Orest Deychakiwsky, formerly with the Helsinki
Commission staff, now a board member with the U.S.-Ukraine Foundation.
Has your coalition, Rob, given thought in terms of the mix between
egregious human rights violators and corruption activists? Or do you
just kind of go wherever the evidence leads you?
Thanks.
Mr. Berschinski. Thanks. That's a good question. In this initial
round, frankly, the group of NGOs that decided to come together, we
were basically figuring this out as we went along. It's a process that
I expect civil society to improve upon as the years go by, in the same
way that, frankly, I'm reasonably hopeful that the U.S. Government will
come out with meaningful sanctions designations in the week or so
ahead. But I also expect that those designations will become more
impactful as more years go by.
As I mentioned in my prepared remarks, Global Magnitsky is--
[laughs]--incredibly powerful, but it's so expansive that it's really
hard to wrap your head around. [Background noise.] [Laughter.]
And we wrestled with that fact as different human rights and
anticorruption NGOs got together to discuss what we ended up putting
together over the course of the year. What we ended up with were a
ratio of roughly two-to-one gross violations of human rights cases to
anticorruption cases.
That was not for any kind of ideal reason. It was mainly that as we
sought to produce recommendations around cases that had a pretty solid
evidentiary basis to hand over to the U.S. Government, really torture
cases are much easier to show than almost anything else. Why is that?
It's because often the victims can personally identify their
perpetrators and/or there's a well-known, well-documented body of
evidence that shows extensive violations, where you can show a command
responsibility such that we could recommend that somebody be
designated, not just the guy that's handling the baton in a particular
interrogation room, but his boss and his boss's boss.
As I mentioned in my prepared remarks, much harder to do on
corruption. That's not to say that, again, some of the allegations that
have been put forward, particularly by these consortiums of
investigative reporters, aren't very compelling. I find that they are.
But if the standard that the U.S. Government needs in order to survive
any legal challenges is you really have to show person X being handed
the cash in exchange for a non-competitive bid for an extractive
service, or whatever the quid pro quo is, that is much harder to
document. So we really are going to wrestle with that moving forward,
and I would expect that the U.S. Government will as well.
Mr. Massaro. Alright.
Questioner. Yes, Mike Dziedzic from George Mason University.
Really interested in the aspect of the law that allows NGOs to
provide information, and stipulates the government will listen. You
mentioned your criterion, but I wanted to ask you a little bit more
about that because it seems to be fixated on individuals. But it's
really networks and governments, regimes that are involved. So in at
least the first cut you took, do you look at not just the individuals
but, for example, in South Sudan--if you were trying to prevent
genocide in South Sudan, you'd want to do more than just go after Salva
Kiir. Is that a way in which you approach this problem?
The second question is, what needs to be done to make your input
more effective in terms of the receptivity, or just in terms of the
relationship that you have with the governments, so that the
information that you're generating can be more valuable and more
usable?
Mr. Berschinski. Thanks for that. Just on the second question
first, as I mentioned in my prepared remarks, I give great kudos to the
administration for its receptivity. They were figuring out how to
implement this law at the same time, essentially, the NGOs that have
been focused on it were. And they have reached out both formally and
informally--formal roundtables asking, soliciting input, and then
plenty of informal conversations. So I don't have much at the level of
just kind of generic receptivity to add. I think that the dialogue is
there.
I think there's infinite potential for common databases,
information sharing platforms. And that's having spent the majority of
my career thus far on the government side of the table. That's never
going to be anything where the U.S. Government can or, frankly, should,
for that matter, rely solely on information provided even by the most
credible organizations. Of course, the U.S. Government is going to need
to independently verify everything they do. And that's really important
to state. But to the extent that we, in civil society, moving forward
can formalize our process around coming up with just data management
tools, I think that's really an area that's ripe for additional
exploration and innovation moving forward.
On your point on the networking, that's certainly true with respect
to gross violations of human rights, and couldn't be more true on the
corruption side. Of course, it doesn't mean much if you are just
designating a lone actor. I think that the groups that were involved in
our process tried as best they could to recommend individuals that we
felt were emblematic of larger problems within a country. So the head
of an internal security service known for systemic torture, let's say.
But you're right, if you really want to affect certain policy outcomes,
you're going to be able to do it via one-offs.
Mr. Massaro. Please, Alex.
Mr. Johnson. On the receptivity note, I would just want to expand
on this infinite potential that Rob had mentioned. It's important that
members of Congress are engaged in the process as well. Following the
efforts by civil society and in conjunction with it, a number of
members of Congress sent their own letters identifying key individuals
that they encountered. That was an important part of engaging in this
dialogue with the administration. So I would call on members of
Congress to remain engaged.
Through their engagement with numerous interlocutors, their
involvement with bodies like the OSCE Parliamentary Assembly, which we
did not have a chance to discuss further, there's an opportunity to
gather a lot of information that is useful to identify cases and
potential individuals that could be sanctioned under Global Magnitsky
provisions.
Mr. Massaro. Please. You're going to have to come all the way up to
the mic.
Questioner. Tanja Nyberg, Magnitsky Act Initiative.
I would like to speak about the example of Alexander Bastrykin, the
head of Russia's Investigative Committee, who is on the Magnitsky list
at the moment. I would say that he's continued doing what he does, and
recently he orchestrated the arrest of the civil staff of Alexander
Navalny's presidential campaign. And he's continued to do it. But what
is a positive is that he's not able to come here to the States, buy
property in Florida, and so on. It's just an example of this.
Thank you.
Mr. Massaro. Thank you. Any other questions?
Alright, I'd like to ask another one then. We've talked a lot about
the way that the sanctions had worked, but what would an appropriate
global balance look like? You emphasized, Rob, that one of the issues
about it is that it's global. It's one of the powers about it. But what
should be the philosophy behind going after 5 people in Latin America,
10 people in Europe, 5 people in Africa? Do we need the exact same
number from each region?
One thing I often run into in anticorruption work is how
holistically criminals operate. There is no specialization in the
criminal world. Yet, for us, we see regions and jurisdiction and all
sorts of other stuff that stops us from effectively looking at this. I
could entirely imagine that we run into an area where we say, yeah, we
need five from this region, five from this region in order to put it
on. So what is the appropriate philosophy? What is the appropriate
argument structure to create the most effective list?
Mr. Berschinski. Good question. I don't think that there's probably
an ideal here. But to speak in generalities, I come back to the
question that was asked. I think the right question to ask is what is
the impact, right? This isn't a matter of numbers. I can imagine an
initial tranche of sanctions from the U.S. Government that has less
impact, but many more names on it than I can imagine that being one
potential. I imagine just as equally a list with fewer names but that,
frankly, has more impact, on the basis of who those people are and the
message that their designation sends. So I don't think we should get
wrapped around the axle on numbers. I think that the right metric is
quality and not quantity.
Then in terms of regional breakout, again, there are two. I think
flexibility is the right watch word. Part of what the NGO consortium
tried to signal through our communications with the U.S. Government was
that we will be disappointed if the way the administration uses this
tool is to go after simply those countries that one might expect.
That's not to say that, for instance, on the human rights side of the
law certain countries don't violate every obligation they've signed up
to under international law and are certainly deserving in terms of the
harm they inflict on their citizenry. But if there's a list that kind
of calls out the usual suspects, we feel like the law isn't being used
to its full
potential.
Certainly, the same goes on the corruption side. I think it's worth
reminding ourselves as we think about the OSCE region that the law is
intended for environments in which criminals enjoy impunity. As Tanja
was getting at with her comment, it's not perfect. A guy like Mr.
Bastrykin is still going to do what he does. Global Magnitsky is no
substitute for real judicial accountability. It's the minimum that can
be done. And in countries in which there is real judicial
accountability, we should be urging our counterparts to prosecute
criminals through their judicial systems. This act is kind of a
failsafe for those countries where the government simply isn't going to
do that. That's where it can be most useful. And so hopefully that will
guide the U.S. Government in its designations.
Then just a last point that's somewhat implicated by your
question--we were also a little bit concerned that the recommendations
coming from civil society, if there weren't some attempt, at least, at
organization, would simply reflect which organizations get fired up
about making recommendations, with no real rhyme or reason. So one
could imagine a very well-meaning effort on behalf of an NGO that
follows corruption or gross violations of human rights dealing with one
specific country coming out with 10 really solid recommendations. More
power to them, but we didn't want kind of the landscape to be dominated
by what's essentially serendipity. Our sense is that we can be of most
value to the U.S. Government if groups come together and not limit
themselves, but adjudicate amongst themselves, to try and approach the
problem as holistically as possible.
Mr. Massaro. Great. Anyone else want to comment on it? Alex, maybe?
Mr. Johnson. Yes, I just want to reiterate the point that these
provisions should be as broadly applicable in our partners, as well as
countries where there may be bilateral tension. It's really a shame and
a challenge that a number of assets still are parked in some of these
jurisdictions where there are robust judicial processes whereby they
can be pursued. But I think it is still important to identify some of
the corrupt officials who operate in those spaces. We should not be
reticent about identifying those countries and naming officials from
there.
Mr. Massaro. So, I have another question. That is, we have
emphasized many times during this discussion that the Global Magnitsky
Act is necessary, but not sufficient. So with this new idea that
essentially started with the original Magnitsky Act that, oh yeah, we
have the financial system, and we can go after these human rights
violators, corrupt individuals--what else needs to be done? What is the
next step on this? So let's enter a world where Global Magnitsky is
applied in a really good way, to the standards that everyone on this
panel would like to see. What is the next step after that? Please.
Mr. Johnson. I mentioned briefly this handbook on corruption that
brought together a number of international institutions. I think one of
the next steps after the broad application of Global Magnitsky, the
naming of a number of officials, and potentially the adoption of
similar measures throughout the OSCE region. It's important to have
robust cooperation between law enforcement. So utilizing these
international institutions and other mechanisms to bring together the
experts that then can pursue and investigate these particular cases.
There needs to be more connective tissue between law enforcement and
mechanisms for exchange that themselves aren't subject to potential
corruption.
Mr. Massaro. Anyone else like to comment?
Mr. Berschinski. So I'll just jump in on that. This comes back to
what we were discussing earlier, is it's worth keeping in mind Global
Magnitsky only relates to sanctions on non-U.S. persons. Coming back to
what you, Paul, mentioned at the outset, a huge portion of the issue is
something that we, within the United States, need to tackle. This is
about new laws around registries for beneficial ownership.
I was just reading today that the House Financial Services
Committee here on, what I understand was a more or less party line
vote, is moving to rescind an element of Dodd-Frank that's a major
anticorruption provision related to the extractives industry--so moving
actively in the wrong direction. So it's all well and good. And I
firmly believe in laws like Global Magnitsky in terms of calling out
and penalizing corrupt actors abroad. But we need to be taking a very
close look at our own house, because we are truly, all of us, enablers
of a lot of this activity.
Mr. Massaro. Do you want to make any comments, Charles? Can I force
you to, on that?
Mr. Davidson. Well, I could underscore that point, because Rob just
mentioned our role as enablers. And Paul made a big deal of that in his
introduction and in further remarks. So my program has taken the
position that that is the elephant in the room, and that everything
else is--I can't use the word here--if we don't tackle that. So I think
that's an issue, the so-called enabler issue. Maybe we'll come up with
some other diction for it at some point. We'll see. But that's really
the elephant in the room. The Global Magnitsky and what we're going to
experience as we try to use it, it may highlight that more and more.
Its existence and attempts to use it may, therefore, help us with some
of the ideas and legislation policies that we think should go through.
Mr. Massaro. Great. Yes, please.
Questioner. Hi. My name is Joseph. I'm going to go with Joseph,
actually. I'm a Turkish lawyer.
I fled in the United States about a year ago. I was a quite wealthy
lawyer, and a well-known one, in my area of expertise. And yet, I had
to leave my country, all my belongings, everything. I start a new life
here as homeless, and then--[inaudible]. I could manage to take my
family with me, too, after I came here.
So I'm working. In my spare time, I'm trying to do something for
the people who have been purged in my country. Half of the judicial
system--I mean, prosecutors, judges--have been fired from their work.
And then most of them, thousands, are in jail. And police officers,
army, more than half of these administrations are emptied with false
accusations. And it is quite difficult to find a lawyer at the moment,
because if a prosecutor somehow doesn't like the lawyer's questions or
the judge's, he may end up being in jail right after the court session,
even during the session.
There are many judges and prosecutors who are being detained during
the trial. He was a judge two seconds ago, and then he's jailed. There
is just one word: Enough. There are hotlines about people who are so-
called terrorists in the eyes of the government. And then even though
you are a professor, doctor, or lawyer, you don't have any illegal
things, even a traffic ticket, and yet, at that moment you are declared
a terrorist.
So what I am trying to say is under these circumstances, is it
really so difficult to find evidence? Let me give you some information
about the detention. Technically, the maximum time for the detention is
24 hours. Let's say if it is a terrorist group, it should be 48 hours.
It was. Now it is 30 days of detention time. And after 30 days, you can
leave the jail, but police officers can take you back to the detention
center again. There is no time limit.
And you can imagine that there is no control of torture whatsoever.
There are tons of people who are so-called suicidal during the
detention or in the jails. There are tons of people who are kidnapped.
There is actual video surveillance footage. And prosecutors don't even
take any applications about it. So under these circumstances, do you
have any idea what can we do in order to obtain evidence?
Because without evidence, I have to try to create maybe twenty
applications regarding to the Global Magnitsky. But, I'm really having
difficulties to convince the people whose family members are tortured--
I can't even convince them. Let's say I convince them to tell the
truth. I can't find the evidence. So please help me out with this.
Thank you.
Mr. Massaro. Do you want to take that on, Rob?
Mr. Berschinski. Thanks. First of all, let me just thank you for
your bravery and just give you my condolences. That's an absolutely
heartbreaking story you tell personally, and one that many of us that
are familiar with events going on in Turkey, unfortunately, I know very
well. And it is a heartbreaking situation.
As relates to the Global Magnitsky Act, what you correctly identify
is one of the limitations of the act as a tool for the U.S. Government.
In order for the government to designate any individual or group of
individuals, a certain evidentiary standard has to be met. As I
mentioned in my remarks, that bar is very high, as I understand it. Not
only that, sir, you mentioned torture. That is considered by the U.S.
Government a gross violation of human rights.
Unfortunately, what isn't captured under the law, under the
definition of gross violations that the U.S. Government uses to
understand the law, political imprisonments, lack of due process, all
the other problems that you mentioned aren't captured at all. So
activists that come to my organization and other human rights
organizations tell stories that can be extremely well documented of
journalists, human rights defenders, lawyers who are imprisoned simply
on behalf of the work that they do. But unfortunately, the law is
written in such a way that if they are not tortured or murdered or
raped, that doesn't qualify.
So, Paul, coming back to your question about where might we go
moving forward, the term, from a legal perspective, ``gross violations
of human rights,'' captures only a small subset of internationally
recognized human rights. That might be an area for future discussion
around future legislation. To your point, sir, on documentation, this
is difficult. The best I can say is, if you are in touch with
individual victims who have come out of prison, who were tortured, who
are able to provide firsthand accounts and talk about conditions and,
ideally, even name names, know who their abusers are, there are groups,
like mine, that would be interested in speaking with them.
As I've mentioned before, this is not the ideal form of justice.
It's only a small tool in the grand scheme of things. But it's better
than nothing. We have in this initial tranche of recommendations that
we gave to the U.S. Government taken cases from other countries in
which torture in the detention system is rife. On the basis of only one
or two firsthand accounts, combined those with well documented,
credible information about systemic problems, and put those together
that makes a recommendation for higher-level people within the
structure to be sanctioned, under a theory of command responsibility.
So an idea that it's--again, not the low-level torturer who no
one's ever heard of, who has no assets to freeze, who's not going to
travel to the United States anyway, but rather the head of that prison
or the city police chief, or the head of the internal security service.
So we can take individual cases and try and make them bigger than what
they are. But it does take a few people who are both willing to speak
up and have the requisite information. And I recognize how hard that is
to come by.
The last thing I'll say is those people don't need to necessarily
go public. We would welcome information that can be held privately,
because we recognize that in many situations governments are willing
and able to exact retribution on both of the victims, their family
members, their communities, and so on. So we can work very quietly, if
need be.
Mr. Massaro. Great. Thanks, Rob.
Alex, please.
Mr. Johnson. I want to echo Rob's thoughts, particularly on the
personal challenges that you're facing. And maybe offer something a
little beyond the scope of Global Magnitsky here to give you a
methodology around gathering evidence. What comes to mind in the OSCE
context is, going back to 2002, the Novemberists in Turkmenistan and
the disappeared. So, since 2002, there have been 112 confirmed cases of
individuals who are currently detained and a campaign called Prove They
Are Alive has been really instrumental in terms of documenting the
detainment of those individuals, the new detainments that have occurred
since then, and finding creative ways to ensure that they are not
forgotten and to tell that story.
While it is our hope, particularly in the context that you
mentioned, that it doesn't reach a circumstance that reaches many years
of indefinite detainment, it's important to look at some of these
examples within the OSCE region. In that particular case, the OSCE
Moscow Mechanism was invoked, and actually generated an investigative
mission where there was a rapporteur who went and prepared a report on
this particular acute case of a number of detainments. So there might
be international mechanisms that you could also similarly gather the
experts together and invoke action.
Mr. Massaro. Well, we've come to the end of our time. Thank you so
much to our distinguished panel here, and to everyone in the audience,
especially those of you who asked questions. Really appreciate that.
We'll close the briefing there. [Applause.]
[Whereupon, at 4:29 p.m., the briefing ended.]
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