Magnitsky List: A Failure, But not Fatal

April 16, 2013
The whistleblowing attorney was arrested and killed for uncovering a $230 million tax fraud.

On April 12 the U.S. government published the so-called Magnitsky List—names of individuals who are believed to be responsible for “gross violations of human rights” in Russia.  The 18 people included in the list will be denied entry to the United States and have their assets and property in the country frozen.  There is also a classified appendix to the list, which may (or may not) contain more names that are not published in interests of national security (i.e. preserving relations with the Kremlin) and that are only affected by the visa ban, not property freezing.

Composition and the very size of the list demonstrate that the Obama administration is not serious about using this mechanism to oppose the backsliding of Russia into worse forms of authoritarianism.  Original authors of the Magnitsky Act, Sen. Benjamin Cardin and Rep. James McGovern, had earlier published their lists of, respectively, 60 and 280 individuals responsible for detention and death of the late lawyer and for the fraud he had discovered.  Only 16 of them, low- to mid-level officials (not higher than a district judge), made it into the official White House list.  The two remaining names belong to Chechens who are believed to be behind high-profile assassinations: those of the Forbes editor-in-chief and U.S. citizen Paul Klebnikov and of Movladi Baysarov, a political opponent of Chechnya’s strongman Ramzan Kadyrov.  So, overall, only three cases of rights abuse that occurred over the span of 10 years were covered.  If one judged the human rights situation in Russia by this list alone, it would seem that things aren’t that bad after all.

In reality, as Rep. McGovern correctly said, the list “features more significant omissions than names.”  All of the cases covered in it date back to 2009 or earlier years; none of them deal with harassment of human rights activists or with political repressions. No senior officials were included.  Suggestions made by Russian activists were also ignored: they had proposed to include the head of the Investigative Committee Alexander Bastrykin, the Head of Moscow City Court Olga Yegorova with her fellow judges Viktor Danilkin and Marina Syrova, Chief of Central Electoral Commission Vladimir Churov, and Ramzan Kadyrov—people connected with politically motivated persecutions, murders of human rights advocates, electoral fraud.  (There is a rumor that Kadryov may have been included on the White House’s “classified” list, though the whole import of the Magnitsky Act is to name and shame human rights abusers, not quietly ban and sanction them.)

As dozens of pro-democracy activists have been thrown to prisons or gone in exile, independent NGOs are raided and shut down, the Parliament formed in rigged elections passes several new draconian laws every month, and the country’s human rights situation is deteriorating at rates unseen in decades, failure to reflect it in the list and pretending that nothing is going on looks absurd, to say the least.

It is not surprising to see the Obama administration watering down the Magnitsky Act, which they had opposed since it was first introduced in the Congress.  The White House believes that such measures undermine their attempts to improve relations with Russia—the “reset.”  However, as a matter of fact, the “reset” is dead (and perhaps, was doomed from the start) not because of some untimely decisions in Washington, but because of fundamental differences in values between the two governments.  Where one looks for cooperation, the other sees a zero-sum game.  Where one tries to strike a compromise, the other feels opponent’s weakness and only increases pressure.

When the Kremlin booted USAID out of the country in September 2012, there was no meaningful reaction from Washington.  So, over the next three months, the National Democratic Institute and the International Republican Institute were forced to close down their Moscow offices.  In October 2012 the Kremlin left the Nunn–Lugar Program of WMD destruction, which also met little reaction from the U.S., and several months later Russia declared that it would stop cooperation in drug trafficking and anti-terrorism.  Washington’s unwillingness to stand up for its values and interests is interpreted in Moscow as weakness.  And, as Putin once said describing his view of international relations, “the weak get beaten.”

This time even Moscow anticipated bolder action from the State Department.  According to leaks from the Ministry of Foreign Affairs, it had prepared a list of 104 names of individuals allegedly connected to operation of Guantanamo prison and to prosecution of a Russian gun trader Viktor Bout and a drug trafficker Konstantin Yaroshenko.  When the Magnitsky List was published, they had to trim theirs to just 18 names—and still, that one includes senior figures like former Vice President Dick Cheney’s Chief of Staff and an Army general.  While it is unlikely that any of those people will want to visit Russia, much less to keep their money in Sberbank, the Kremlin demonstrates that at least it has the guts to name some big names—something the White House lacks.

The Magnitsky Act could, and still can, become a very effective and efficient tool to fight human rights abuses in Russia.  While the duty of changing political regime and establishing democracy lies solely with the Russian people, there are things they can hardly do, like bringing to account government officials implicated in corruption or human rights abuses.  Targeted sanctions against such individuals would not only provide at least some justice to their victims when local judiciary mechanisms don’t work, but would discourage their colleagues and subordinates from participating in such activities.  While no list in the world can completely stop harassment of activists, by increasing the costs of such repressions it may prevent the worst forms of authoritarianism and give some room for local civil society to function.  In the long run, it will also benefit the West by increasing the odds of having in Russia a friendlier, democratic government and a people who will remember who helped them in their struggle (and who didn’t).

However, it will require a tougher, more principled approach than the U.S. administration currently has.  Some nudging can help.  I was recently invited to the board of a new group called Magnitsky Act Initiative that will be monitoring and promoting better implementation of the law.  Thanks to this and similar efforts, we can hope to see significant and much needed additions to the Magnitsky List.