Congress Has a Serious Human Rights Problem on Its Hands

March 25, 2022

In recent weeks, a little-known provision of human right law was tampered with as it made its way through the House of Representatives. Family Research Council called attention to the problems with this altered text, but because it was attached to bills cutting off Russian oil and suspending trade relations with Russia and Belarus, not as many took notice. This language must not be allowed to pass the Senate.

This bad language in the Suspending Energy Imports from Russia Act (H.R. 6968) and the Suspending Normal Trade Relations with Russia and Belarus Act (H.R. 7108) would modify the Global Magnitsky Human Rights Accountability Act (which was enacted in 2016). The Global Magnitsky Act enables the U.S. government to place financial sanctions on foreign individuals responsible for “extrajudicial killings, torture, or other gross violations of internationally recognized human rights.” This is an important law, and it is one of the most effective means by which the U.S. government can pressure officials in other countries to stop violating human rights.

Of course, we want the U.S. government to utilize Global Magnitsky to bring foreign individuals who violate religious freedom or other human rights to justice. However, the new language lowers the bar from sanctioning people for “gross violations of internationally recognized human rights” (a term defined in U.S. law) to simply “serious human rights abuse” (a legally undefined concept). Without a clear definition, “serious human rights abuse” could be construed broadly, to mean a lot of different things. This could pave the way for U.S. officials to misuse Global Magnitsky sanctions to target foreign individuals based on political considerations and policy agendas (pro-life leaders as “human rights violators,” for instance).

Some are now mistakenly arguing that without this new language, as contained in President Trump's related executive order, the U.S. government would not have been able to sanction a number of recent human rights violators. Thus, they want to codify this language. Yet the reality is that these individuals could still have been sanctioned under the current Magnitsky "gross violation" standard, which would capture violators exercising "command and control" authority to stop human rights abuses.

Some claim this language is needed in order to use Global Magnitsky sanctions in cases like that of American pastor Andrew Brunson’s wrongful imprisonment, but they are mistaken. In U.S. law, "gross violations of internationally recognized human rights" is defined to include "torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges and trial, causing the disappearance of persons by the abduction and clandestine detention of those persons, and other flagrant denial of the right to life, liberty, or the security of person" (emphasis mine). This last provision clearly would have still allowed for sanctions against the officials persecuting Brunson. In addition, the statute also specifically refers to violations of the exercise of freedom of religion.

Brunson was simply pastoring a small evangelical church in Turkey when the Turkish government absurdly accused him of participating in a coup and detained him. His arbitrary detention qualifies as a "gross violation," and the sanctioned officials exercised at least "command control" over the situation. Turkish officials should have -- and could have -- been sanctioned even without President Trump's executive order and the "serious human rights abuse" language in it.

While "serious human rights abuse" is mentioned elsewhere in federal law, those instances are clearly outlined and linked to specific instances of human rights abuse in a given context. The changes currently being considered for Global Magnitsky would result in global carte blanche for those who want to use a manipulated definition of "human rights" to do their bidding.

There is also a big difference between this language being utilized in an executive order and enshrined into law. If Congress gives up on this language, and gives over complete discretion for interpreting what constitutes a "serious human rights violation" to the executive branch, it's easy to see how the Global Magnitsky Act sanctions -- which are currently a powerful tool for good -- can be used in a harmful way, and would be subject to the vagarities of shifting political winds from administration to administration. The Biden administration is already slipping abortion policy into its human rights reporting, falsely implying that human rights include a "right" to abortion.

The U.S. government should stand up for human rights around the world -- but we must be vigilant to keep U.S. human rights advocacy on the straight and narrow. We should retain the current statutory language of the Global Magnitsky Act, and not open up the door to the vague, broader terminology of "serious human rights abuse" -- which is a serious watering down of the definition itself.

Instead of making this drastic and damaging change, the Senate should opt instead for a straight reauthorization of the Global Magnitsky Act using the current language which had bipartisan support in 2016.

Either way, the Senate must deal with this problematic "serious human rights abuse" standard once and for all.