The Albanian government should broaden regulations to capture these and the many other human rights that can be seriously violated, as well as other thresholds in the Magnitsky law that the previous government failed to implement. These include violations of international humanitarian law and threats to international security. Surprisingly, the law itself omits international crimes, such as genocide and crimes against humanity, which should be covered. International law provides clear standards for assessing this damage.
So far, Australia has applied Magnitsky sanctions sparingly against Russians for corruption and the related murder of Sergei Magnitsky. Sanctions against Iran are justified, but human rights violations in some countries are even worse. Australia must follow a proactive global human rights strategy by impartially assessing which countries deserve sanctions. Candidates for new or additional sanctions include Myanmar, North Korea, China, Syria, Russia, Ethiopia, Eritrea, South Sudan, Afghanistan, Saudi Arabia, Morocco and Israel, to name a few.
Sanctions against geopolitical pariahs are relatively simple. A recent study of Western Magnitsky laws found that they are almost never used against allies, no matter how badly they behave. Australia should not shy away from sanctioning allies when necessary, to ensure its human rights diplomacy is principled, consistent and credible.
Ideally, Australia should establish an independent reviewer to consider Magnitsky sanctions, impartially apply the legal criteria and allow public input, and make non-political recommendations for a final diplomatic decision by the Secretary of State. The evaluator should consider the necessity and proportionality of sanctions, which the current law does not require the minister to do, and encourage coordination with sanctions from other countries.
The role could be filled by an Australian ambassador for human rights, promised by opposition Labor but not yet delivered. The minister should also report to parliament on sanctions in order to improve supervision.
Finally, the Law Council of Australia is concerned that Australian sanctions do not guarantee a fair trial, including reasons, a right of reply and independent review. A fair trial is not only a human right, but also ensures accurate decisions. Australia will lose its credibility and its sanctions will be less effective if it tries to fight human rights violations by committing human rights violations itself.
Ben Saul is Challis Chair of International Law at the University of Sydney.
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