The Magnitsky Act
Sergei Magnitsky was a Russian tax accountant who acted for an
American client Bill Browder who went to Russia as a hedge fund trader.
He discovered an incredible identity theft – fraud – that Bill’s
companies had been used without his knowledge by a syndicate of crooked
police and tax officials, who used them to steal $250M of public money.
And when he reported this massive fraud, the investigators were the
very police who’d pulled it off. They arrested him, kept him in prison
for a year without trial, thanks to lick-spittle judges who ignored the
law and ignored his failing health. And he was finally beaten to death
in prison by the criminals in the state who had committed the crime that
he had informed on.
Bill Browder launched a massive campaign in the West to identify and
condemn the 30 or 40 people morally and legally responsible for Sergei’s
death – the police, the tax officials, who were now busily laundering
their money through Cyprus and London, and the supine judges who had
cruelly denied him bail. Browder named them and shamed them in a massive
campaign. One policeman, on a salary of $300 a month, paid $2M to
English lawyers to sue Bill for libel. The case was eventually thrown
out and Bill took his campaign to the United States.
In June 2012, the United States House Committee on Foreign Affairs
reported to the House a bill called the Sergei Magnitsky Rule of Law
Accountability Act of 2012. The main intention of the law was to punish
Russian officials who were thought to be responsible for the death of
Sergei Magnitsky by prohibiting their entrance to the United States and
use of their banking system.
In a rather puerile, self-defeating response to adoption of the
Magnitsky Act in December, the Russian government denied Americans
adoption of Russian children, issued a list of US officials prohibited
from entering Russia, and posthumously convicted Magnitsky as guilty.
Australian expatriate jurist Geoffrey Robertson, who represented
Browder, has described the Act as “one of the most important new
developments in human rights”. He says it provides “a way of getting at
the Auschwitz train drivers, the apparatchiks, the people who make a
little bit of money from human rights abuses and generally keep under
the radar.”
In November 2013 he gave the 2013 Human Rights Oration to celebrate
the 65th anniversary of the Universal Declaration of Human Rights. With
apologies to the raconteur, I have attempted to condense his words of
wisdom into a couple of pages with the odd comment thrown in.
“If we shrug our shoulders and say, as the Australian Prime Minister
said in Colombo a couple of days ago – I quote – “Sometimes in difficult
circumstances, difficult things happen”. Human rights atrocities are
not “difficult things”. They are evils, and the Universal Declaration
enjoins us to condemn them.”
Robertson spoke of Australia’s pivotal role in the drafting of
the Human Rights Universal Declaration through Doc Evatt and his team.
“Article 25 was very much an Australian inspiration – the right to an
adequate standard of living, including food, clothing, housing and
medical care and benefits in the event of unemployment, sickness,
disability, widowhood or old age.”
He goes on to ask who guards the guardians – “the Australian guardians who thought it right to hack into the telephones of our Indonesian allies”.
“Well, who guards the guardians? This … we have Edward Snowden to
thank for revealing that we live in the world that Orwell dreamed of,
where there is no hiding place for any electronic communication. He
revealed the Prism, which picks up your conversation if you use any one
of 70,000 key words that it automatically hoovers up for storage and
subsequent reading. If you say “Bin Laden” on your telephone
conversation with your lover, that will be swept up. If you say
“Assange”, it will be swept up. And there are 70,000 other words that
Prism is calculated to pick up. Now, not only conversations of that
kind. At some point the decision makers – we don’t know quite who they
are – in the arrangement, which is basically Britain and America, with
Australia, Canada and New Zealand thrown in, decided it would be a good
idea to pick up the conversations – the private conversations – on
mobile telephones of world leaders, beginning with Angela Merkel.
None of this has anything to do with terrorism. It has to do with
picking up gossip and tittle-tattle and feeding that to politicians.
That’s what it’s all about. And, of course, it is ironic that the first
public victim – I say public because I understand there have been a lot
of private victims, who maybe even don’t know that they’re victims of
the gossip and tittle-tattle – but the first public victim was none
other than General Petraeus. He was the best solider that America had.
He was about to be made head of the CIA. And on his metadata, which is
the records they could get of everyone who ever calls him or he ever
calls, they discovered that he’s been having an affair with his
biographer, which disqualified him from the CIA.
Well, now we have DSD, our defence intelligence service, and the
revelation of the fact that in 2009 they were boasting – and I’ve seen
the document, and it is really a very boastful PowerPoint presentation –
of how they, the intelligent Australians, were able to bug the mobile
phone of the wife of the Indonesian ambassador. My first instinct – my
first advice – was, “No, this is some sort of plant”. I mean on every
page they had this moronic, puerile motto stamped heavily, “Steal their
secrets. Keep ours”. I said, “These are intelligent Australians. They
wouldn’t have a motto as corny as that on every page”. Well, of course
they do. And this is interesting because if you think about it, there is
nothing to do with terrorism, there is nothing to do with Australia’s
national security, that could rationally be gleaned from the mobile
phone of the wife of the Indonesian Prime Minister.
What d*ckhead made this decision? Because look at the consequences.”
I would suggest it was the predecessor of the d*ckhead who just upped our security alert to high.
“I looked at the Australian Security Act last night and, bizarrely,
there are some protections for Australians, but basically DSD can do
what it likes to non-Australians.”
This was before the Abbott/Brandis announcement about retaining all of our metadata.
“There is this James Bond idea that they’re licensed to kill, they
can be licensed to do anything, and we give them a carte blanche because
we think that they’re spending their time on terrorism. Quite clearly
they’re not. In this case they were spending their time on
tittle-tattle, and hoovering it up from the Australian Embassy in
Indonesia, which was a breach of international law, a breach of the
Vienna Convention, and even more interestingly, I think, a breach of the
Australian law.
Who issued an authorisation requiring the tapping of the telephone of
the Indonesian politicians and the Prime Minister’s wife? What happened
to oversight?
How come the guardians of the intelligence service, set up by the
Hope Report, failed so abjectly to identify this improper behaviour and
to deal with it? The Inspector General of Security, the Parliamentary
Committee, there’s even a Ministerial Security Adviser – all statutory
positions, all guardians who have failed in their duty to ensure that
Australian intelligence collects intelligence on our enemies, and not
the tittle-tattle from our friends.
Or did we just do it because the Americans told us to?”
Robertson then goes on to discuss gunboat diplomacy, “by which I mean giving gun boats to unrepentant human rights violators.”
“So Sri Lanka claims that the human rights situation has improved
markedly. That’s a lie. Two Human Rights Committee resolutions on the
country’s human rights and the lack of accountability have been met with
silence. This August, the UN Commissioner, Navi Pillay, reported that
Sir Lanka curtailed or denied personal freedoms and human rights, that
the country’s leaders still acted with impunity in the absence of the
rule of law. And she describes an environment of increased
militarisation, enforced disappearances, violence against women and
religious minorities, silencing of opposition voices, and increasingly
fearful press. And in the lead up this year to the Commonwealth
Conference, the government destroyed the independence of the judiciary.
Well, Australia donated its gunboats and Mr Abbott defended the
government. I quote, “Sometimes in difficult circumstances difficult
things happen”. Like killing 70,000 civilians. Anyway, it seemed to be a
long-winded paraphrase of Donald Rumsfeld’s “stuff happens”. But
genocide is not stuff. It’s not a difficult thing that happens. Nor is
torture or mass rape or mass murder. These are breaches of a universal
law, which must, when they happen, be universally condemned by every
state that takes its international obligations seriously. And I don’t
make this as a party-political point: turning a blind eye to Sri Lanka
human rights breaches was just as much Bob Carr’s policy as Julie
Bishop’s.
But their thinking is … this seems to be the thinking of Australian
governments that this will somehow help to stop Tamil asylum seekers.
Now I think this is a very foolish, and actually very ignorant,
approach, for two reasons. Firstly, because the history of human rights
proves that you can’t deal with leaders who are mass murders. They
always lie and cheat and make promises they’ve got no intention of
keeping. Of course the patrol boats will be used for the purposes of the
Sri Lankan navy, whether it’s shelling civilians or having fireworks
displays when the judge is sacked. Human rights violators can’t be
trusted not to violate human rights again and again. A second reason is,
quite simply, the only way to stop people seeking asylum is to end the
persecution that makes them seek asylum and risk their life in doing so.
Most human rights violators act because they don’t fear retribution.
They’re not political and military leaders; they’re merely what one
might term “the train drivers to Auschwitz” – the judges, the policemen,
soldiers, public servants, utterly necessary to the commission of
crimes against humanity, but not important enough for the international
community to put then on trial. But lives might be saved if they decided
not to act, or decided to act differently.
And over the past year or so we’ve come up with a way to deter some
of these willing tools of oppressive governments, who make money from
their abominable acts and store it in countries where they can take
advantage of the banking system and the school system, and even the
hospital system. This is called a Magnitsky law. And, really, every
civilised government should have one. And it’s becoming a campaign
objective. The US has taken the lead. Many European countries are
planning to do the same. And Australian could and should move in the
same direction.”
Robertson sees this as a kernel for a movement to support global integrity and justice. His entire speech can be read here and could I also recommend, as I have before, Ted Mack’s
Henry Parkes Oration delivered around the same time. These men give
one faith that the world is not full of corporate puppets like Tony
Abbott.
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