Magnitsky Law under Examination

The examination report on the Magnitsky Act is being written for the Russian Ministry of Foreign Affairs. By the end of January, a group of Russian experts in international law will present a report on this scandalous law.

The head of the group and member of the Human Rights Committee Alexander Brod said that the results of the examination of the Magnitsky law will be presented within one month.

Brod has already met with the representative of the Russian Ministry of Foreign Affairs Konstantin Dolgov, who he says supports the examination and promised to bring it to the U.N. and other international forums.

“Dolgov supported our ideas, which we intend to reflect in the examination report. He told me that he is willing to present this report for discussion in the U.N., OSCE* and other forums,” said Brod. “This way we are planning to achieve international response to unlawful actions by the U.S.”

During the interview with the newspaper Izvestiya, Konstantin Dolgov confirmed that he had a conversation with Brod, and showed his displeasure at its public disclosure.

“Our conversation was private. I was very surprised that Brod introduced all details of it to the public,” said Dolgov.

“He told me that they have an idea. In response to it I said ‘good’ and gave them permission to send me the results. Prior to receiving their official documents, I won’t comment on this proposal,” Dolgov told Izvestiya.

Brod said that this group will include experts in international law from Moscow State Institute of International Relations, the Diplomatic Academy and members of human rights organizations.

In his opinion, without judicial assessment it is completely inadmissible to determine people’s guilt, their involvement in offenses, to restrict their movements including their entrance to the U.S. and to freeze their accounts.

“The U.S. Magnitsky Act directly violates many articles of the U.N. international agreements, rules of which apply to both Russia and the U.S.,” he said. In particular, he was indicating a violation of the U.N. Charter and the Universal Declaration of Human Rights by the U.S.

“From the standpoint of substantive rights, the Magnitsky law violates the principle of the sovereign equality of the states in Part 1, Article 2 of the U.N. Charter, which is based on non-interference in the internal affairs of another state, including classification of administrative decisions of a sovereign state,” said Brod.

Part 4, Article 2 of the U.N. Charter guarantees inadmissibility of any form of attack on the territorial privilege and political independence of any state. The passage of the Magnitsky law is in violation of this principle and grants extraterritorial jurisdiction to the U.S., spreading its authority over the territory of a sovereign state.

“One more violation of the international obligations by the U.S. in passing the Magnitsky law is a violation of the Universal Declaration of Human Rights adopted by the U.N. General Assembly of the right of every person to a fair trial, in Article 11, because the evaluation of people’s involvement in Magnitsky’s death will be carried out without any judicial process,” said Brod.

At the same time, professor of international law at Moscow State Institute of International Relations Dmitry Labin thinks that to prove that America has violated an international agreement will be very difficult.

“In reality, it would be more constructive to find a legal approach to this Magnitsky law than to have political investigations. I think it would be more practical to analyze each individual case from the list from the point of view of the law,” he said. “Right now, our country as a member of the WTO can argue a violation of any economic rights from the WTO Agreement.”

As for the ban on travel to the U.S., the professor remarked that this practice is already widely used when Americans decide to deny visas without explanation.

Another professor of international law at Moscow State Institute of International Relations, Dmitry Ivanov, said that it will be more clear whether the Magnitsky law violates the rights of Russians after its application.

According to Ivanov, one of the fundamental principles of international law is non-interference into the internal affairs of a sovereign state.

“From this point of view, the Magnitsky law may be regarded as an unlawful action by the U.S.,” he said.

At the same time, an expert from Izvestiya noted that if this law is implemented, it will put in question a basic principle of international law — presumption of innocence.

“In the future this may lead to a breach of the right to a fair trial,” he added.

Ivanov also thinks that “American courts have no jurisdiction in judging actions of foreign citizens. In our law that is not considered an offense but a violation of human rights.”

“There are some facts, motives and procedural rules missing,” explained Ivanov.

In the meantime, a former teacher at Moscow State Institute of International Relations, Mikhail Troitsky, questioned the existence of documents showing that it is allowed to challenge acts of a foreign state.

“Besides, if we are talking about extraterritoriality, the U.S. is known to use this factor before. In particular, history shows that their extraterritoriality affected even sanctions on companies that invested over $40 million in Iran or Libya. That was what happened to Lukoil,” he recalled.

Meanwhile, among the Russian human rights activists there are some who support the Magnitsky Act. For example, the head of the Moscow Helsinki Group, Lyudmila Alekseeva, is a supporter of the law. Moreover, she addressed the deputies of the State Duma to gather support for it.

*Editor’s Note: Organization for Security and Co-operation in Europe