How the Global Magnitsky Act could force Trump to hold the Crown Prince meaningfully accountable

By Justin Santabarbara

Recent developments in the murder of journalist Jamal Khashoggi continues to leave more questions than answers. Amid all of the ambiguity, there are a number of facts for which we are certain: (1) Mr. Khashoggi was murdered by Saudi Intelligence officials in Istanbul, (2) the Saudi government successfully lured Mr. Khashoggi to the Saudi Embassy in Istanbul for the purpose of obtaining a marriage license, (3) the Saudi government had previously attempted to coerce Mr. Khashoggi back to Saudi Arabia, (4) a Saudi “clean” team was deployed to the Saudi Embassy in Istanbul, before Turkish investigators were permitted to enter; and (5) each individual that has been named by intelligence agencies as having been involved in the murder, cleanup, and in maintaining the murder’s veil of clandestinity are employed by the Saudi government.

The United States and its Western allies have been slow in responding to the actions of the Saudis. Indubitably, the Trump Administration is paralyzed by its trade engagements with the Saudi government. However, the Saudis have relentlessly stated their commitment to ensuring that the perpetrators of such a heinous crime are held accountable. The international community bears no control over the actions of the Saudi government, and often no confirmation that their rhetoric is matched by action. Without validation of Saudi accountability, which itself presents a common oxymoron, the international human rights community must turn to its own mechanisms of accountability.

Though a relatively new law, the Domestic and Global Magnitsky Act(s)provide a worthwhile place to start. Born from the legacy of a Russian attorney who was tortured and murdered by Putin, the Magnitsky Act forms a union among domestic laws to ensure that the assets of human rights abusers are collectively frozen, and visas are not granted for individuals deemed especially precarious to international human rights. The Global Magnitsky Act effectuates a treaty of all states that have agreed to pass collimate domestic legislation. The names are also given to InterPol, who broadcasts yellow and red notices to its signatories. Because each individual Magnitsky signatory has a domestic corollary to the international agreement, each of the individuals named by the Magnitsky Act are effectively designated persona non gratain the signatory states.

Irrespective of the likely ordering of the murder at the behest of Saudi Crown Prince, Mohammed bin Salman, the international community needs to work with the facts for which we are certain. Because a number of the individuals who executed the murder are diplomatically registered, their identities are readily available for inclusion in the Magnitsky Act(s). A tremendous benefit to employing the Magnitsky Act is that, aside from heads of state, and heads of government, it is resistant to sovereign immunities. Such a resistance is particularly distinguishing from other sanctions, less effective sanctions that states may individually impose.

The United States is unlikely to impose its own Magnitsky sanctions. However, states may force the United States to comply with the Global Magnitsky Act. For example, if a plurality of signatories multilaterally elect to add the Saudi names, the United States would be forced to abide by the visa freezes. Each state may autonomously elect to freeze the assets of those named under Magnitsky, however the United States would be placed in an ultimatum between maintaining their Magnitsky obligations and acting in accordance with their trade deal with the Saudi government. Such a decision need not be mutually-exclusive.

If the Saudis are truly committed to ensuring accountability for such a heinous offense, then their cooperation in evoking Magnitsky sanctions would allow the United States to maintain its commitments to both the Global Magnitsky Act and its trade regime. That is not to say that no action should be taken toward the Saudi Crown Prince. The most pragmatic approach, and a necessary first step, concerns imposing Magnitsky sanctions quickly, before the Crown Prince has time to pass the buck once again. Though the United States has already sanctioned 17 individuals in connection with Khashoggi’s murder, recent developments surrounding the Crown Prince’s knowledge demonstrates that more must have been involved. Even with the current sanctions, the United States has not imposed the visa freezes, which are paramount to triggering the Global Magnitsky Act. Nonetheless, the United States should continue to impose sanctions on all individuals surrounding the Crown Prince and with knowledge of the Khashoggi action. The Global Magnitsky Act will follow suit. As the international community continues to grow closer to the Crown Prince’s protectorates, their bargaining leverage against the Crown Prince increases and meaningful sanctions against the Saudi government becomes palpable.

For more information, please see:

Bill Browder, Red Notice: A True Story of High Finance, Murder, and One Man’s Fight for Justice (3rd ed. 2015).

U.S. Dept. of Treasury, Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012(Dec. 14, 2012), available at https://www.treasury.gov/resource-center/sanctions/Programs/Documents/pl112_208.pdf (last visited Nov. 18, 2018).

Jordan Tama, What is the Global Magnitsky Act, and why are U.S. senators invoking this on Saudi Arabia?Washington Post (Oct. 12, 2018) available at https://www.washingtonpost.com/news/monkey-cage/wp/2018/10/12/what-is-the-global-magnitsky-act-and-why-are-u-s-senators-invoking-this-on-saudi-arabia/?utm_term=.61e3e3185723 (last visited Nov. 18, 2018).

Peter Bergen, With the Khashoggi story worsening, the US may have finally found an adult in the room, CNN (Nov. 18, 2018) available atttps://www.cnn.com/2018/11/18/opinions/with-khashoggi-story-worsening-us-adult-in-the-room-bergen/index.html (last visited Nov. 18, 2018).

U.S. Dept. of Treasury, Press Releases: Treasury sanctions 17 individuals for their roles in the killing of Jamal Khashoggi (Nov. 15, 2018), available at https://home.treasury.gov/news/press-releases/sm547 (last visited November 18, 2018).