Overview

The Global Magnitsky Human Rights Accountability Act (hereafter, the Global Magnitsky Act),¹ enacted on December 23, 2016, authorizes the President to impose economic sanctions on, and deny entry into the United States to, foreign individuals or entities identified as engaging in human rights violations or corruption. The White House has used Executive Order (E.O.) 13818, issued on December 20, 2017, as the framework for implementing the act, including the delegation of specific tasks to relevant executive branch actors.² As of December 3, 2021, a total of 148 individuals and 189 entities are subject to economic sanctions under E.O. 13818. The Global Magnitsky Act expires on December 23, 2022. Because E.O. 13818 additionally invokes national emergency authorities, sanctions could continue beyond the expiration of the act. Some Members of the 117^th Congress have introduced legislation that would authorize the law permanently and/or modify some aspects of the law (see "Pending Reauthorization Bills").

This report describes the origins, scope, and implementation of the Global Magnitsky Act to date. The report additionally contextualizes the Global Magnitsky sanctions tool among other similar U.S.-targeted sanctions authorities and discusses U.S. efforts to coordinate Global Magnitsky sanctions with other governments. Finally, the report describes possible considerations for Congress as it examines the implementation of Global Magnitsky Act and weighs whether and in what manner to reauthorize its provisions and/or authorize or appropriate relevant federal resources.

Origins

The Global Magnitsky Act is based, in part, on a 2012 law that focuses on Russia, the Sergei Magnitsky Rule of Law Accountability Act (hereafter, the Sergei Magnitsky Act).³ Sergei Magnitsky, a tax lawyer and auditor in Russia, documented the expropriation of the assets of Hermitage Capital—once the largest foreign investment brokerage in Russia—through rampant Russian government corruption. Russian authorities arrested Magnitsky in November 2008, reportedly for tax evasion, and denied him medical care, family visits, and legal due process. Magnitsky was reportedly beaten while in detention, and ultimately died in prison in November 2009. William Browder, Chief Executive Officer of Hermitage Capital, brought congressional attention to Sergei Magnitsky's treatment and eventual death in Russia. (An August 2019 judgement by the European Court of Human Rights ultimately found that the conditions of Magnitsky's detention and his ill-treatment constituted multiple violations of the European Convention on Human Rights, including its prohibition against torture or inhuman or degrading treatment or punishment.)⁴

In 2012, Congress passed the Sergei Magnitsky Act to require the President to identify and impose sanctions on any person determined to have been involved in the detention, abuse, or death of Magnitsky; the ensuing cover-up; or the alleged criminal conspiracy that Magnitsky had uncovered. More broadly, the law requires the President to identify any person determined to be responsible for gross violations of human rights against individuals either seeking to (1) expose illegal activity by officials of the Russian government or (2) to "obtain, exercise, defend, or promote internationally recognized human rights and freedoms" within Russia. Also required to be identified is any person who acted as an agent of or on behalf of persons in matters relating to such violations of human rights.⁵

Although the 2012 law, as enacted, focuses on Russia, some versions of the legislation that had been under consideration would have provided authority to sanction persons globally, and some Members of Congress expressed a hope that future legislation would create such a global authority.⁶ The law's findings retain language arguing for the importance of upholding respect for human rights globally, including in order to "maintain the stability of the international order," and draws connections between corruption and erosions in democratic governance, the rule of law, and respect for human rights.⁷ In subsequent congresses, some Members of Congress introduced "Global Magnitsky" legislation, ultimately culminating with passage of the Global Magnitsky Act as part of the National Defense Authorization Act for 2017. Notably, the global law expanded the scope of sanctionable activity beyond human rights to also include acts of significant corruption.

Numerous Members described the Sergei Magnitsky Act and the later Global Magnitsky Act as providing the United States with tools to impose some measure of accountability against foreign perpetrators, particularly when relevant foreign governments are unable or unwilling to do so.⁸ Some Members and policy experts have described the targeted nature of the authorized sanctions, as well as the Global Magnitsky Act's global remit, as providing the executive branch with a tool to impose sanctions against specific persons in countries with which the United States shares important bilateral relations without necessarily provoking a broader rupture to these relations. The Global Magnitsky Act contrasts with some other provisions in law that contemplate broader restrictions on relations with foreign governments on the basis of human rights violations.⁹ It also differs from country-specific targeted sanctions regimes, the creation of which can be time consuming and diplomatically challenging or disadvantageous (see "Comparison with Other Targeted Sanctions Authorities"). In addition, some observers have viewed the Global Magnitsky Act's provisions for congressional and nongovernmental input into possible sanctions targets as providing a unique means by which both Congress and civil society advocates can encourage and assist the executive branch to implement the law.

Overview of the Law and Executive Order

The Global Magnitsky Act was enacted on December 23, 2016. The executive branch has used Executive Order 13818, issued on December 20, 2017, to implement and build on the act's provisions. When issuing E.O. 13818, the President additionally invoked emergency authorities set out in the National Emergencies Act (NEA) and International Emergency Economic Powers Act (IEEPA), as well as authority under the Immigration and Nationality Act (INA).¹⁰ The President determined that serious human rights abuse and corruption "constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States," declaring that they "undermine the values that form an essential foundation of stable, secure, and functioning societies; have devastating impacts on individuals; weaken democratic institutions; degrade the rule of law; perpetuate violent conflicts; facilitate the activities of dangerous persons; and undermine economic markets."

This section presents an overview of the Global Magnitsky Act, while noting key differences between the act and its implementation through E.O. 13818.

Type of Sanctions

The Global Magnitsky Act authorizes, but does not require, the President to impose targeted sanctions on certain "foreign persons"—defined to include both individuals and entities (as discussed below, E.O. 13818 expands this to "any person" in some cases).¹¹ The law authorizes two types of restrictions:

• Economic sanctions (asset blocking and prohibitions on transactions): Freezing any property held within U.S. jurisdiction and prohibiting U.S. individuals or entities from entering into transactions with the designated person.
• Visa restrictions: Denying entry into the United States and revoking any already-issued visas.

The economic sanctions authorized by the Global Magnitsky Act and E.O. 13818 accord with IEEPA authorities and are similar to other targeted sanctions programs implemented primarily by the Department of the Treasury's Office of Foreign Assets Control (OFAC).¹²

As with executive orders establishing other targeted sanctions programs, and drawing on INA authorities, E.O. 13818 states that the entry into the United States of aliens determined to meet one or more of the order's sanctionable criteria "would be detrimental to the interests of the United States," and suspends their entry. It states that such persons shall be treated as persons denied entry under Presidential Proclamation 8693, which in part prohibits entry into the United States of aliens subject to economic sanctions pursuant to IEEPA authorities.¹³

Exceptions to Visa Restrictions. The Global Magnitsky Act states that visa restrictions "shall not apply to an individual if admitting the individual into the United States would further important law enforcement objectives" or is necessary for the United States to comply with the U.N. headquarters agreement "or other applicable international obligations of the United States." Executive branch reporting has indicated that persons designated pursuant to E.O. 13818 are subject to visa restrictions "unless an exception applies."¹⁴

Scope of Sanctionable Behavior and Targets

The scope of sanctionable behavior and range of possible targets differs between the Global Magnitsky Act and E.O. 13818, with the latter containing language that broadens the potential scope of application.

The Global Magnitsky Act

With regard to human rights, the Global Magnitsky Act authorizes the President to impose sanctions on any foreign person that the President identifies as "responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights" against an individual in any foreign country who seeks to

• "expose illegal activity carried out by government officials," or
• "obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly, and the rights to fair trial and democratic elections."¹⁵

The act refers to "gross violations of internationally recognized human rights" as it is statutorily defined in Section 502B(d)(1) of the Foreign Assistance Act (FAA) of 1961, 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 these persons, and other flagrant denial of the right to life, liberty, or the security of person."¹⁶ Any foreign person who has "acted as an agent of or on behalf of" a perpetrator of such acts against the above categories of persons can also be subject to sanctions.

With regard to corruption, the President may impose sanctions on any foreign government official, or any senior associate of such official, that the President determines is "responsible for, or complicit in, ordering, controlling, or otherwise directing, acts of significant corruption, including the expropriation of private or public assets for personal gain, corruption related to government contracts or the extraction of natural resources, bribery, or the facilitation or transfer of the proceeds of corruption to foreign jurisdictions."¹⁷ In addition, the President may designate any foreign person who has "materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services in support of" such acts.¹⁸

Executive Order 13818

E.O. 13818 appears to widen the scope of potentially sanctionable targets from foreign persons responsible for gross human rights violations against certain categories of individuals (as described above), to those determined "to be responsible for or complicit in, or to have directly or indirectly engaged in, serious human rights abuse," without reference to the status of the victim. Unlike the Global Magnitsky Act's reference to the statutorily defined "gross violations of internationally recognized human rights," the executive order does not define the term "serious human rights abuse."

Regarding corruption, the executive order refers to "corruption," rather than the act's reference to "acts of significant corruption," though the order enumerates the same examples of corrupt acts. It additionally broadens the scope of relevant possible targets from foreign government officials or their senior associates to "current or former officials or a person acting on their behalf."

E.O. 13818 also allows for the sanctioning of persons determined to have attempted to engage in serious human rights abuse or corruption. It further lays out additional categories of potential sanctions targets, including broader networks of associated individuals or entities. Additional or expanded categories of potential targets include the following:

• 1. Any foreign person determined to be or to have been a leader or official of an entity that has engaged in serious human rights abuse or corruption or whose property or interests in property are blocked under the executive order.
• 2. Any person determined to have "materially assisted, sponsored, or provided financial, material, or technology support for, or goods or services to or in support of" (a) serious human rights abuse or corruption, (b) a person whose property or interests in property are blocked under the executive order, or (c) any entity that has engaged in, or whose members have engaged in, serious human rights abuse or corruption.
• 3. Any person determined to be "owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly" any person whose property and interests in property are blocked under the executive order.
• 4. Any person determined to have attempted (emphasis added) to engage in relevant activities described in items 2 or 3 above.

In its broadest interpretation, the "materially assisted" criteria could leave individuals and entities vulnerable to so-called "secondary sanctions," whereby third parties engaged in activities with a primary sanctions target are themselves subject to sanctions.¹⁹ In addition, while the Global Magnitsky Act authorizes sanctions against foreign persons, the executive order, as illustrated above, in some cases refers more broadly to any person. (For a discussion of congressional considerations regarding the scope of sanctionable targets in the context of a potential Global Magnitsky Act reauthorization, see "Scope of Possible Sanction Targets" below.)

Annual Reporting and Public Disclosure Requirements

The Treasury Department generally issues a press release noting each new economic sanctions designation pursuant to E.O. 13818 that includes a description of the reason for the designation. The Global Magnitsky Act additionally requires the President (who delegated the responsibility to the Secretary of State in E.O. 13818) to report to certain congressional committees annually, by December 10 (International Human Rights Day), on designations made over the previous year. ²⁰ In addition to including information on persons sanctioned and the type of sanctions imposed with respect to each person (including the reasons for imposing sanctions), the report is to include information on any terminated sanctions, as well as efforts by the President "to encourage the governments of other countries to impose sanctions" similar to those authorized by the Global Magnitsky Act.

The annual report is unclassified but may include a classified annex. The unclassified portion is published in the Federal Register, and the Global Magnitsky Act states that the list of foreign persons sanctioned can be publicized without regard to the requirements of Section 222(f) of the INA, which protects the confidentiality of records pertaining to the issuance or refusal of visas or permits. However, the names of such persons may be submitted via a classified annex if the President

• determines that doing so is vital to the national security interests of the United States;
• "uses the annex in a matter consistent with congressional intent" and the purposes of the relevant subtitle; and
• at least 15 days before submitting the name in a classified annex, provides to the appropriate congressional committees "notice of, and a justification for, including the name in the classified annex despite any publicly available credible information indicating that the person engaged" in sanctionable activity.²¹

Although the economic sanctions authorized by the Global Magnitsky Act necessitate public disclosure in order to have effect, this authority to report names via a classified annex appears to allow for nonpublic visa restrictions pursuant to the act.

Congressional, Nongovernmental Organization (NGO), and Foreign Government Roles

In making sanctions determinations, Section 1263(c) of the Global Magnitsky Act requires that the President consider "information provided jointly by the chairperson and ranking member of each of the appropriate congressional committees"—the Senate Committee on Banking, Housing, and Urban Affairs, the Senate Committee on Foreign Relations, the House Committee on Financial Services, and the House Committee on Foreign Affairs—as well as credible information obtained by foreign countries and by nongovernmental human rights organizations.

Section 1263(d) separately requires the President to respond within 120 days to any request from specified committee leadership to determine whether a foreign person has engaged in sanctionable activity under the law. The President must submit a report to the leadership of the requesting committee(s) stating whether the President has imposed or intends to impose sanctions, and, if so, describing those sanctions. Such requests related to human rights must be submitted jointly by the chairperson and ranking member of one of the committees listed in the previous paragraph, whereas requests related to corruption must be submitted jointly by the chairperson and ranking member of one of the listed Senate committees and one of the listed House committees.

Sanctions Termination Criteria

The act authorizes the President to terminate sanctions if the President determines and reports to certain congressional committees that "credible information exists" that²⁸

• the designee did not engage in the activity for which sanctions were imposed;
• the designee "has been prosecuted appropriately" for the activity;
• the designee has significantly changed his or her behavior, "paid an appropriate consequence," and credibly committed not to engage in future sanctionable activity; or
• the termination is in the interest of U.S. national security.

Executive Branch Implementation²⁹

Designation Processes and Relevant Implementation Units

Decisionmaking processes around possible designation under Global Magnitsky involve interagency deliberations that include multiple federal departments and agencies. According to E.O. 13818, the Secretary of the Treasury makes sanctions determinations in consultation with the Secretary of State and the Attorney General. In addition to the Office of Foreign Assets Control, other Department of the Treasury offices, such as the Office of International Affairs (IA), also sometimes play a role in the targeting process.³⁰ For the State Department, the recently established Office of Sanctions Coordination may be a principal participant going forward.³¹ Internally within the State Department, the Global Magnitsky Act authorizes the Assistant Secretary of State for Democracy, Human Rights, and Labor (DRL), in consultation with the Assistant Secretary of State for Consular Affairs (CA) and other State Department bureaus, to submit to the Secretary of State the names of potentially sanctionable foreign persons. In practice, State's Bureau of International Narcotics and Law Enforcement Affairs (INL) is also involved with regard to corruption-related sanctions, as well as relevant regional bureaus and other offices. Relevant offices within the Department of Justice include the Criminal Division's Human Rights and Special Prosecutions Section,³² while units within other departments and agencies also sometimes contribute to interagency deliberations on possible sanctions targets.³³

Various sources of information may inform discussions over possible targets and help form the basis for a sanctions determination. Such sources can include State Department diplomatic and consular posts overseas, intelligence community entities, nongovernmental organizations (NGOs), and Congress (see textbox below). OFAC has responsibility for developing evidentiary memoranda for sanctions targets that use multiple sources of corroborated information to provide reason to believe that the target meets one or more of the designation criteria under E.O. 13818.³⁴ Following sanctions designation determinations, the Department of the Treasury is responsible for taking actions to effect the economic sanctions, such as adding the sanctioned person's name to the Special Designated Nationals (SDN) list, while the State Department is responsible for implementing visa restrictions.

Target Prioritization. In considering possible sanctions targets, the executive branch has focused on goals of disrupting or deterring serious human rights abuse or corruption, promoting accountability in environments of impunity, and advancing international norms (for more about Global Magnitsky sanctions goals, see "Varying Sanctions Goals and Implications for Prioritizing Targets, Measuring Effectiveness"). According to executive branch officials, additional considerations that guide decisions on what persons to target include a desire to strive for geographic diversity of sanctions targets, as well as a rough balance between targets designated for human rights abuse and targets designated for corruption.³⁵

Designations to Date

As of December 3, 2021, a total of 148 individuals and 189 entities are subject to economic sanctions pursuant to Global Magnitsky authorities through E.O. 13818.⁴³ The majority of sanctioned entities are "derivative" targets, in that they are sanctioned because they are owned or controlled by a sanctioned individual. According to a CRS calculation, among the individuals sanctioned, 89 are designated primarily for human rights abuses, 56 are designated primarily for corruption, and 3 are designated in relation to both human rights abuses and corruption.⁴⁴ Two sanctioned individuals have later been delisted.⁴⁵ Figure 1 illustrates the diversity of nationalities of individuals designated for economic sanctions under E.O. 13818.

Figure 1. Nationalities of Individuals Designated for Economic Sanctions Under E.O. 13818

Source: CRS graphic based on data from the Office of Foreign Assets Control (OFAC). Notes: Does not include designated entities. The nationality of a designated individual does not always correspond with the country in which the sanctionable activity took place.

The first 13 persons sanctioned under Global Magnitsky authority were listed in the annex of E.O. 13818 when it was issued on December 20, 2017. Subsequent designations under Global Magnitsky authority have been announced periodically, with sometimes relatively large numbers of designations being announced annually on International Anti-Corruption Day (December 9) and Human Rights Day (December 10). See Figure 2 below.

Figure 2. Individuals Designated for Economic Sanctions Over Time Based on Human Rights Abuses, Corruption, or Both

Source: CRS graphic based on data from the Office of Foreign Assets Control (OFAC). Note: Does not include designated entities.

Illustrative Examples of Designated Individuals and Entities

Reflecting the broad scope of sanctionable targets under E.O. 13818, the rank, status, and relationship to instances of human rights abuse or corruption of individuals targeted to date have varied widely (see "Scope of Sanctionable Behavior and Targets"). For instance, a selection of sanctioned individuals to date includes the following:⁴⁶

• In relation to a "a significant corruption network in South Africa that leveraged overpayments on government contracts, bribery, and other corrupt acts to fund political contributions and influence government actions," Ajay Gupta, a businessperson, was designated in October 2019 "for being the leader of an entity that has engaged in, or whose members have engaged in, corruption."⁴⁷
• In relation to the "brutal security operation that began in August 2017 in [Burma's] Rakhine State," Min Aung Hlaing was designated in December 2019 "for his role as the Commander-in-Chief of the Burmese military forces, an entity that has engaged in or whose members have engaged in serious human rights abuse under his command."⁴⁸
• In relation to "serious rights abuses against ethnic minorities" in China's Xinjiang Uyghur Autonomous Region (XUAR), Chen Quanguo, the Party Secretary of XUAR, was designated in July 2020 for "being a foreign person who is or has been a leader or official of an entity, including any government entity, that has engaged in, or whose members have engaged in serious human rights abuse relating to the leader's or official's tenure."⁴⁹
• Satish Seemar, a horse trainer for Ramzan Kadyrov—the head of Russia's Chechen Republic designated in relation to the murder of Boris Nemtsov—was designated in December 2020 for having "materially assisted, sponsored, or provided financial material, or technological support for, or goods and services to or in support of" Kadyrov, as was Daniil Vasilievich Martynov, "a personal security advisor for Kadyrov," among others.⁵⁰
• Vassil Kroumov Bojkov, a Bulgarian "businessman and oligarch" described as having "bribed government officials on several occasions," including the former Chairman of Bulgaria's "now-abolished State Commission on Gambling," was designated in June 2021 "for being a person who has materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of corruption."⁵¹

Designated entities may similarly range from entities used to facilitate the transfer or sheltering of ill-gotten assets (shell companies) to entire government ministries or bureaus. As noted above, most entities have been designated in a derivative fashion due to their association with a designated individual. In a small number of cases, however, the executive branch has sanctioned entities as primary targets for engaging in human rights abuse or corruption. For example:

• China's Xinjiang Public Security Bureau (XPSB) was designated in July 2020 "for being a foreign person responsible for, or complicit in, or that has directly or indirectly engaged in, serious human rights abuse" in relation to mass detentions and surveillance in XUAR; in addition, two officials were individually designated as XPSB leaders or officials "of an entity whose property and interests in property are blocked" under E.O. 13818.⁵²
• Cuba's Ministry of the Interior (MININT) was designated in January 2021 in relation to serious human rights abuse, and an individual was designated "for being a foreign person who is the leader or official of MININT."⁵³

The executive branch has sometimes designated large numbers of individuals or entities associated with a single "case" of human rights abuse or corruption or for their mutual association in a single network. For example:

• A total of 33 entities and an individual have been designated in connection with Dan Gertler (in addition to Gertler himself), an Israeli businessman designated for "opaque and corrupt mining and oil deals in the Democratic Republic of the Congo (DRC)" and leveraging his relationship with now former DRC President Joseph Kabila to require "some multinational companies to go through Gertler to do business with the Congolese state."⁵⁴ (Near the end of the Trump Administration, the Treasury Department issued a license authorizing transactions involving Gertler and the other sanctioned persons that was later revoked by the Biden Administration.⁵⁵)
• A total of 18 Saudi Arabian nationals and one entity have been designated for their role in the 2018 murder of Saudi journalist Jamal Khashoggi.⁵⁶
• A total of nine Serbian nationals have been designated because they "acted or purported to act for or on behalf of" Serbian arms dealer Slobodan Tesic, whom the Treasury Department has designated for corruption. A total of 13 entities also have been designated either for being owned or controlled by Tesic or by one of his nine designated associates.⁵⁷

Comparison with Other Targeted Sanctions Authorities

Sanctions authorized by the Global Magnitsky Act share similarities with some other U.S. sanctions regimes that address human rights or corruption. In some cases, the executive branch has publicly designated individuals pursuant to both Global Magnitsky and other authorities.

Visa Sanctions Authorities, Including Section 7031(c) of Department of State, Foreign Operations, and Related Programs Appropriations Acts

Most similar to Global Magnitsky is a recurring provision in the Department of State, Foreign Operations, and Related Programs Appropriations Acts (SFOPS), Section 7031(c), which requires the Secretary of State to deny visas to enter the United States to foreign officials about whom the Secretary has credible information indicating they "have been involved, directly or indirectly, in significant corruption ... or a gross violation of human rights." The restriction also extends to immediate family members of the official. Unlike Global Magnitsky sanctions, SFOPS Section 7031(c) designations do not entail economic sanctions. Table 1 summarizes selected differences between Global Magnitsky sanctions as they are being implemented under E.O. 13818 and those authorized under SFOPS Section 7031(c).

Other related global authorities include Section 212 of the INA (8 U.S.C. 1182), which provides the Secretary of State with broad authority to impose denial of entry into the United States on the basis of U.S. interests or the avoidance adverse impacts on U.S. foreign policy. It also includes specific activities as grounds for denial of entry, including participation in genocide, commission of acts of torture or extrajudicial killings, responsibility for particularly severe violations of religious freedom while serving as a foreign government official, and conviction of a crime involving moral turpitude, among others. The executive branch has used INA authority to suspend the entry of foreign public officials engaged in corruption (through Presidential Proclamation 7750 of January 12, 2004), and of aliens implicated in human rights and humanitarian law violations (through Presidential Proclamation 8697 of August 4, 2011). Pursuant to Section 222(f) of the INA, records pertaining to the denial of entry are to be kept confidential.

Country-Specific Sanctions Regimes

Congress has also enacted country-specific laws that aim to impose sanctions on the basis of human rights or corruption, and the President has used authorities under NEA, IEEPA, and INA to establish country-specific sanctions regimes, citing, in part, human rights abuses and corruption as rationales for the restrictions. Promoting human rights or democracy and/or combating corruption are explicitly cited as motivations, at least in part, in a large number of the more than 30 economic sanctions regimes currently maintained by the United States, including with regard to Belarus, Burma, Central African Republic, Cuba, Democratic Republic of the Congo, Ethiopia, Hong Kong (People's Republic of China), Iran, Lebanon, Libya, Mali, Nicaragua, North Korea, Russia, Somalia, South Sudan, Syria, Venezuela, Western Balkans, Yemen, and Zimbabwe.⁶⁷

Global Magnitsky's global remit may avoid some challenges associated with country-specific sanctions regimes. Experts note that creating a country-specific regime can be laborious and can sometimes complicate diplomatic relations and/or have unintended ramifications. Pursuant to IEEPA, doing so requires a national emergency declaration due to "an unusual and extraordinary threat ... to the national security, foreign policy, or economy of the United States."⁶⁸ In 2015 testimony to Congress, an executive branch official (now a Member of Congress) noted that the use of IEEPA-mandated language in a national emergency declaration allowing for sanctions against individuals in Venezuela, for example, generated "blowback ... from the region, including from some of our allies and partners in the region, and from the Government of Venezuela itself." According to the official, the national emergency language can be "exploited to suggest that the United States is, in effect, going to war against that country," and Venezuela's government "pointed to some of that language and said ... 'You see, the Americans are coming after us,' when, in fact, all we were doing was holding accountable a number of individuals for abuses of human rights and for corruption."⁶⁹

Global Magnitsky's standing global authority may also allow the United States to sanction human rights abusers or persons engaged in corruption who are nationals of countries with which the United States has important bilateral relationships and for which it may be reluctant to establish a country-specific sanctions regime that more broadly indicts an entire country or implies failings of its government. Notably, the United States has used Global Magnitsky authorities to designate nationals of some democratic allies and/or countries with which it has generally positive bilateral relations, such as Bulgaria, Israel, Latvia, and South Africa. The global authority also provides flexibility to address human rights or corruption matters that are of a transnational nature.

Conversely, a possible advantage of country-specific sanctions regimes is that they can allow the United States to tailor the sanctionable criteria to context-specific behaviors and categories of persons it hopes to target. For example, following the February 2021 military coup in Burma, President Biden's E.O. 14014 of February 10, 2021, authorizes sanctions on any foreign person found to operate in Burma's defense sector, among other sanctionable criteria.⁷⁰ Similarly, after initially using Global Magnitsky to target serious human rights abuse in relation to the conflict in Ethiopia's Tigray region, the Administration subsequently created a new Ethiopia-specific sanctions regime with sanctionable criteria that is specifically tailored to developments there.⁷¹ Executive branch officials have stated that they do not see Global Magnitsky sanctions as a substitute for country-specific sanctions regimes, but rather they see the tools as complementary and mutually reinforcing.⁷² At the same time, the existence of multiple, sometimes overlapping, sanctions regimes may arguably increase compliance burdens for private sector actors.⁷³

Coordinating Sanctions with Other Governments

Numerous governments in recent years have put in place sanctions regimes that are similar to Global Magnitsky, including Canada, the United Kingdom (UK), and the European Union (EU),⁷⁴ and additional jurisdictions are considering enacting their own such regimes, including Australia and Japan, among others.⁷⁵ The establishment of similar regimes may create increasing opportunities for the United States to impose human rights- or corruption-related sanctions in an orchestrated multilateral fashion (though in a manner that is narrower in scope than multilateral United Nations Security Council sanctions). As noted above, the Treasury Department's October 2021 sanctions review document emphasizes pursuing multilateral sanctions to improve effectiveness and impact in furtherance of foreign policy.⁷⁶

The tangible impact of sanctions on targeted individuals and entities is generally enhanced when multiple sanctioning governments put in place similar restrictions, thereby expanding the reach of travel and economic sanctions to multiple jurisdictions. Concurrent sanctions may also engender greater perceived international legitimacy. In addition, the capacity to act in concert may help bring about greater political will among some governments, and may distribute the risks of possible retaliatory measures. Certain obstacles to coordinating sanctions with other governments may exist, however, including varying foreign policy considerations and possible logistical and technical challenges, such as barriers to information sharing, differences in evidentiary standards, and varying resources for implementation. Variations between the standards and scope of sanctionable behavior can also preclude coordination; the EU's sanctions regime, for example, does not currently provide for targeting persons for corruption.⁷⁷

As required by the Global Magnitsky Act, the executive branch's annual reports to Congress on Global Magnitsky implementation include information about U.S. efforts to encourage other governments to impose sanctions that are similar to those authorized under the act. The reports to date have included brief descriptions of State and Treasury Department efforts to assist governments to enact such regimes, and to share information and technical assistance in support of coordinated actions. For example, according to the most recent report, the State Department and the Treasury Department in February 2020 "formed a technical delegation to brief Australian partners at the invitation of Parliament, which initiated an inquiry into whether Australia should adopt a human rights-based sanctions regime."⁷⁸ Some outside observers have recommended that the United States work with like-minded partners to establish formal, routinized collective mechanisms and arrangements for information sharing toward the goal of improving coordination on human rights and anticorruption sanctions.⁷⁹

Coordinated Actions to Date. Most non-U.S. sanctions regimes that are similar to Global Magnitsky are relatively new, and the number of persons sanctioned under the U.S. Global Magnitsky Act greatly exceeds the number designated to date under other similar sanctions regimes.⁸⁰ The most notable broadly coordinated sanctions action to date was a March 22, 2021, action by the United States, Canada, the UK, and the EU to impose sanctions against People's Republic of China (PRC) officials and entities in connection with human rights abuses in Xinjiang, China. Canada, the UK, and the EU simultaneously imposed sanctions on four PRC officials and a PRC entity; the United States announced Global Magnitsky sanctions on two of the same officials, having already previously imposed sanctions on the others.⁸¹ (Canada's sanctions actions were not taken pursuant to Canada's equivalent of the Global Magnitsky Act, but rather China-specific regulations under its Special Economic Measures Act).⁸² Notably, news reports described the actions by the U.S. partners as the first human rights sanctions against China by these governments since their respective responses to the 1989 Tiananmen Square crackdown.⁸³ Some other PRC individuals and entities that had previously been designated by the United States under Global Magnitsky, including Xinjiang Communist Party Secretary Chen Quanguo, were not designated by the other governments.⁸⁴

In another example, in April 2021, the United States imposed corruption-related Global Magnitsky sanctions on one current and one former Guatemalan official "in close coordination" with the UK, which simultaneously sanctioned the current official.⁸⁵ In some cases, foreign governments have used their sanctions authorities to name individuals who are already subject to U.S. restrictions.⁸⁶ For instance, Canada and the UK have separately followed the United States in sanctioning Saudi nationals in relation to the killing of journalist Jamal Khashoggi.⁸⁷

In addition and apart from Global Magnitsky, the United States has drawn on country-specific sanctions authorities to impose coordinated human rights sanctions in some cases; for example, the United States in June 2021 used its Belarus sanctions regime to impose sanctions in concert with Canada, the EU, and the UK.⁸⁸

Pending Reauthorization Bills

The Global Magnitsky Act is authorized through December 23, 2022. Some pending bills in the 117^th Congress would authorize the Global Magnitsky Act permanently and/or amend some aspects of the law. This includes the standalone Global Magnitsky Human Rights Accountability Reauthorization Act (S. 93). Introduced in the Senate in January 2021 and reported out of the Senate Foreign Relations Committee in June 2021, the legislation would

• permanently reauthorize the Global Magnitsky Act;
• broaden the scope of sanctionable targets under the act, using language similar to that found in the implementing executive order (such as "serious human rights abuse");
• authorize sanctions against the immediate family members of sanctioned individuals (similar to SFOPS Section 7031(c));
• require that the annual report to Congress on the act's implementation include information about other U.S. foreign policy actions taken "to address underlying causes of serious human rights abuse and corruption" in each country in which targeted foreign persons are located; and
• encourage the President to "establish and regularize information sharing and sanctions-related decision making with like-minded governments possessing human rights and anti-corruption sanctions programs" that are similar to Global Magnitsky.

Separately, the House-passed National Defense Authorization Act for 2022 (H.R. 4350) includes provisions that would reauthorize Global Magnitsky in a generally similar manner, though with some differences.⁹¹ The House-passed language, for example, would not amend the law to authorize sanctions against immediate family members. In addition, a number of broad pending bills, including S. 1169, S. 1260, and H.R. 3524, contain provisions that would permanently reauthorize the Global Magnitsky Act without otherwise amending the law.

Considerations for Congress

Congress may consider a number of issues as it examines the implementation of the Global Magnitsky Act to date and weighs whether and in what manner to reauthorize its provisions and/or authorize or appropriate relevant federal resources. Discussions of a selection of possible topics of consideration are included below.

Varying Sanctions Goals and Implications for Prioritizing Targets, Measuring Effectiveness

Desired outcomes for Global Magnitsky sanctions actions are multiple and may vary in relative emphasis between different stakeholders. Included among the goals of Global Magnitsky Act sanctions that congressional and/or executive branch stakeholders have expressed are

• disrupting human rights abuse or corruption and/or deterring future such acts;
• promoting accountability for past acts of human rights abuse or corruption in environments of impunity;
• advancing international human rights and anticorruption norms alongside like-minded foreign governments;
• supporting or reinforcing foreign government efforts to pursue domestic accountability or undertake reforms to protect human rights or combat corruption;
• conveying moral solidarity with human rights defenders, whistleblowers, and victims of human rights abuse and corruption; and
• protecting the U.S. financial system from abuse by perpetrators of human rights abuse or corruption.

The Trump Administration in its annual reports on Global Magnitsky Act implementation emphasized the first, second, and third bullets above. The Trump Administration also stated that, when considering sanctions, the United States "prioritizes actions that are expected to produce a tangible and significant impact on the sanctioned person and their affiliates, to prompt changes in behavior or disrupt the activities of malign actors."⁹² Biden Administration officials have described similar prioritization among these goals.⁹³

While the above goals may often be interrelated and mutually supportive, in some instances they may not align. For instance, sanctions against persons who do not participate in the international financial system or travel to the United States may be unlikely to affect their behavior in a way that disrupts or deters human rights abuse or corruption. At the same time, the act of publicly announcing the individual and the basis for their designation can be seen as a "name and shame" tool in service of accountability and international norms, and as a means of expressing solidarity with human rights and democracy advocates in the relevant country and in the diaspora. For instance, July and August 2021 Global Magnitsky sanctions against Cuban government officials and entities were described in media reports as unlikely to have a significant substantive impact, but, reportedly according to Administration officials, were imposed with the goal of holding perpetrators accountable and expressing support for and solidarity with people in Cuba.⁹⁴ Similarly, Global Magnitsky sanctions imposed against People's Republic of China (PRC) officials in Xinjiang may be unlikely in isolation to affect the targets' behavior or broader PRC policy in the region, but may serve as a high profile expression of U.S. and international support for accountability for gross human rights violations that, in their totality, the United States contends amount to crimes against humanity and genocide.⁹⁵ Some analysts and Members of Congress have pointed to the strident opposition to Global Magnitsky sanctions by China's government and other governments with poor human rights and corruption records as an indicator of the sanctions' importance and public messaging power.⁹⁶

The number of potentially sanctionable persons under Global Magnitsky criteria likely far outstrips U.S. government capacity and resources. As such, clarity about the precise goals that are of greatest importance for Global Magnitsky sanctions may help guide decisions on which sanctions targets to prioritize. Precision about priority goals and desired outcomes may also be a prerequisite to meaningfully evaluating the effectiveness of the tool, both generally and with regard to particular sanctions actions (see discussion in the below subsection). As it evaluates the executive branch's implementation of the Global Magnitsky Act to date, Congress may consider whether to direct or encourage the executive branch to place more or less priority on specific sanctions goals, or whether to maintain broad executive branch discretion and flexibility.

Global Magnitsky Sanctions and Behavior Change?

OFAC has generally conceived of sanctions as a behavior change tool. A 2014 OFAC "sanctions 101" document, for example, states that "[s]anctions are a means to an end; the ultimate goal of sanctions is behavioral change."⁹⁷ Reportedly, because of its prioritization of promoting behavior change, in considering possible targets for Global Magnitsky sanctions, the executive branch has generally sought to respond to activities that occurred within the previous five years.⁹⁸ This concept of behavior change as a goal can be interpreted to encompass the broader policy changes that sanctions may help effect.⁹⁹ Nonetheless, some analysts have criticized the executive branch's emphasis on behavior change as too narrow, arguing that it does not sufficiently capture the logic of using sanctions to disable networks of bad actors, or appropriately weight the value of other goals described in the above section, such as providing accountability for victims.¹⁰⁰

The direct tangible impact of Global Magnitsky sanctions on targets may be significant in some cases. Corrupt actors who rely on access to the international financial system to transfer ill-gotten gains, for example, may find the financial restrictions imposed to be a substantial curb on their activities. According to OFAC, as a general matter, "[f]or those targets who seek to operate in the legitimate international financial system, [financial] sanctions can deliver a massive blow, as conscientious people and institutions will often shun them and their business."¹⁰¹ In practice, this may extend to financial institutions outside U.S. jurisdiction that become wary of doing business with sanctioned persons. Travel restrictions—particularly those imposed in concert with other countries—may also be a burden on corrupt actors or human rights abusers who seek to travel to, and enjoy ill-gotten gains in, environments of relative security and the rule of law. In the words of one democracy activist, targeted sanctions can "provide personal accountability for those who break the rules of civilized society at home while enjoying its benefits abroad."¹⁰²

Whether the financial or other impacts of sanctions on a given target contribute to a deterrence or a disruption of human rights abuse or corruption may often be difficult to assess. As one observer notes, "it's virtually impossible to measure, or even know about, corrupt acts that don't take place," and "targeted sanctions programs tend to focus on a relatively small set of potential offenders, making quantitative statistical analysis of changes in offense rates infeasible."¹⁰³ U.S. diplomatic messaging could potentially use the threat of Global Magnitsky sanctions in a manner that induces positive changes in behavior without the sanctions ever having been imposed.¹⁰⁴ Moreover, experts note that sanctions tend to be one tool employed as part of a broader strategy, further complicating the ability to isolate the impact of the sanctions themselves on the behavior of the target or other actors.¹⁰⁵ In addition, given entrenched conditions that Global Magnitsky sanctions may be seeking to change, some experts contend that relatively long evaluative time horizons are necessary.¹⁰⁶ (For a discussion of designation factors that may contribute to Global Magnitsky sanctions effectiveness, see textbox at the end of the "Scope of Individuals and Entities Targeted" section.)

The extent and nature of executive branch efforts to evaluate whether Global Magnitsky sanctions are contributing to behavior change are unclear. According to a Government Accountability Office (GAO) report about agency efforts to assess sanctions programs generally, both the Treasury and State departments conduct assessments of the impacts of sanctions on sanctions targets, such as the how much of the targets' assets may be affected by economic sanctions. According to the report, these agencies do not assess how effective sanctions are in achieving broader U.S. policy goals, although their assessments of sanctions' impacts may contribute to interagency discussions that examine the effectiveness of sanctions in achieving policy goals.¹⁰⁷

Outside observers, including some advocates of the Global Magnitsky Act, note that the capacity for sanctions alone to result in behavior change may be limited in many cases.¹⁰⁸ Nonetheless, some experts have pointed to instances in which they perceive Global Magnitsky sanctions as having possibly contributed to behavior change and/or broader positive developments from the perspective of democratic governance, the rule of law, and human rights. For example, according to one expert, Global Magnitsky sanctions

played a significant role in convincing the then-President of the Democratic Republic of Congo, whose long rule was accompanied by human rights abuses and the looting of Congo's extensive natural resources, to stand down from running for an unconstitutional third term. In that instance, it was the repeated use of GloMag sanctions against Kabila's close friend and key financial enabler Dan Gertler, along with his network of associates and companies, that appears to have played a vital role in convincing Kabila to heed the call of the international community to step down.¹⁰⁹

Some observers argue that Global Magnitsky sanctions also appear to have helped spur or reinforce domestic anticorruption or other reforms and/or efforts to ensure accountability for individual perpetrators, with examples cited from the Gambia, Latvia, Mexico, Serbia, and South Africa, among others.¹¹⁰ At the same time, attributing positive developments, in whole or in part, to U.S. sanctions is challenging, and there are risks of overweighting the importance of U.S. actions relative to local factors.

Influence of Other U.S. Foreign Policy Goals and Criticisms of Selectivity

Some observers have argued that the executive branch's choice of sanctions targets can invite charges of selectivity and hypocrisy when the United States appears to decline to sanction individuals out of apparent deference to concerns over bilateral relations with a given country, potentially undermining the credibility of the sanctions tool.¹¹¹ Researchers from Freedom House, for instance, argue that it is "crucial" that the sanctions "be consistently applied whenever there are clear violations of rights, even when those violations are committed by individuals from ally or partner countries.... If sanctions are only applied on U.S. adversaries, the United States' stated commitment to the protections of rights appears hypocritical, and the sanctions appear as just another politicized tool."¹¹² Reflecting on the totality of sanctions actions by that point, an October 2020 Human Rights First report described executive branch implementation of the tool as "robust," but also charged the U.S. government with "inaction" for having not imposed sanctions against "the architects of kleptocratic systems and brutal repression in countries including Azerbaijan, Bahrain, Egypt, the Philippines, Tajikistan, the United Arab Emirates, and Uzbekistan, among others."¹¹³

An example of alleged selectivity regards the executive branch's response to the Saudi government's operation that killed journalist Jamal Khashoggi. Although the Trump and Biden Administrations have sanctioned numerous Saudi foreign persons in connection with the case, some observers and Members of Congress have criticized the executive branch for not designating Saudi Crown Prince Mohammed bin Salman (MBS) for his role in approving the operation.¹¹⁴ The Biden Administration in February 2021 released a congressionally mandated report¹¹⁵ that confirmed the intelligence community's view that MBS approved the operation (the release was delayed during the Trump Administration), but reportedly declined to sanction MBS in order to avoid upending relations with the Saudi government and potentially negatively affecting cooperation on a range of diplomatic and security matters.¹¹⁶ Responding to criticism over the decision, the State Department stated in part that, "Saudi Arabia is a hugely influential country in the Arab world and beyond. What happens in Saudi Arabia will and has had profound implications well beyond Saudi Arabia's borders." The U.S. goal "is to be able to shape those choices going forward ... we have talked about this not as a rupture, but a recalibration, to ensure that we retain that influence in what we need for our own interests to be a partnership."¹¹⁷

Relatedly, analysts have argued that some decisions to impose Global Magnitsky sanctions appear to have been motivated by the pursuit of other U.S. geopolitical interests or other goals that may not align with the Global Magnitsky Act's statutory intent. For instance, some human rights advocates criticized the Trump Administration's use of Global Magnitsky sanctions against two senior Turkish officials in relation to the detention of Pastor Andrew Brunson. These critics argued that the sanctions did not directly address Turkey's widespread and broader human rights problems, and that the use of Global Magnitsky for purposes of securing the release of an American hostage undercut its international legitimacy as a human rights and anticorruption tool.¹¹⁸ Other observers, however, drew connections between Brunson's plight and broader international religious freedom challenges in Turkey.¹¹⁹ Brunson was released in October 2018, and the Global Magnitsky sanctions against the two officials were subsequently removed. In another example, an analyst criticized September 2020 corruption sanctions against a Chinese-owned business entity operating in Cambodia for allegedly selectively punishing a company with Chinese ties while ignoring many other companies engaged in corrupt acts in Cambodia, thereby fueling a "narrative that the sanctions are being used to blunt China's strategic gains in the region."¹²⁰

Congress may consider the extent to which Global Magnitsky sanctions can or should suitably support or be constrained by other foreign policy goals, and what impact, if any, this may have on the credibility of the tool. Possible questions include the following:

• To what extent, if at all, should the United States consider possible impacts to other U.S. foreign policy objectives or to bilateral relations in making sanctions determinations? Should geostrategic considerations affect sanctions decisions?
• How, if at all, is the Global Magnitsky Act's capacity for promoting human rights and combating corruption affected if international observers perceive that the United States uses the tool as a means of pursuing other, narrower U.S. national interests?
• Do sanctions decisionmaking processes and the relative influence of different executive branch stakeholders in those processes reflect congressional intent for how the Global Magnitsky tool is used? (For example, the influence of functional State Department bureaus such as the Bureau of Democracy, Human Rights, and Labor relative to that of regional bureaus.)
• How has the Global Magnitsky Act's provisions for allowing congressional and NGO input affected the executive branch's sanctions decisions? What effect, if any, has the executive branch's maintaining of discretion to decline to act on congressional requests pursuant to the act had?

Scope of Possible Sanction Targets

The broader targeting scope of E.O. 13818 relative to that of the Global Magnitsky Act itself may carry distinct advantages, as well as some possible disadvantages. Executive branch officials reportedly sought the executive order's flexibility in part because of the difficulty, in some cases, of obtaining credible information on human rights abuse or corruption that is sufficient to meet the standard of the Global Magnitsky Act.¹²¹ The executive order's broader scope may thus allow the United States to impose sanctions on perpetrators of human rights abuse and corruption that may otherwise be difficult to address. The order also allows the United States to impose sanctions more easily on broader networks of individuals and entities associated with perpetrators, potentially increasing the reach and tangible impact of the tool. Regarding sanctionable behavior for human rights, the order's lack of focus on defending whistleblowers and human rights defenders may arguably detract from the law's original aim; at the same time, human rights experts have generally expressed support for the order's added flexibility to impose sanctions for human rights abuses regardless of the status of the victim.¹²² Some experts have argued for also expanding the scope of the tool to include the capacity to sanction the immediate family members of perpetrators of human rights abuse or corruption, similar to the provision under the visa restrictions authority in Section 7031(c) of SFOPS.¹²³

Although many experts and nongovernmental organizations have argued in favor of Congress codifying much of E.O. 13818's broadened scope, some suggest that Congress consider modifications or clarifications, such as defining or providing illustrative examples of key terms like "serious human rights abuse."¹²⁴ According to one Member of Congress, the executive order's arguably vague standard, coupled with its reliance on national emergency authorities, undermines the perceived international legitimacy of the sanctions and "gives abusers an avenue to characterize our actions as arbitrary and outside the consensus of the global community."¹²⁵ Another possible critique of the executive order's broadened scope is that it may provide greater opportunity for presidential administrations to use the Global Magnitsky tool in ways not originally envisioned by Congress and that potentially undermine its legitimacy (see "Relationship with Other U.S. Foreign Policy Goals and Criticisms of Selectivity" above).

Executive Branch Resources for Implementation

Budgetary and staffing limitations may affect how robustly the executive branch is able to implement the Global Magnitsky Act sanctions tool. According to GAO, overall budgetary resources for sanctions implementation units in the Treasury and State departments have been on the rise, although these units have experienced challenges filling some positions due to factors such as competition from other agencies and the private sector and the time required for new hires to obtain security clearances.¹²⁶ Some experts and outside observers have described some of the specific units and offices that are charged with implementing Global Magnitsky Act sanctions as suffering from staffing and resource shortfalls, creating capacity constraints for pursuing new sanctions designations. According to one nongovernmental report, funding increases in recent years (discussed below) have led to notable increases in the capacity of these offices, although staffing constraints may remain.¹²⁷

In recent years, Congress has directed resources to the Treasury and State departments specifically for purposes of Global Magnitsky implementation. This has included not less than $3 million annually in FY2020 and FY2021 for the Treasury's Office of Terrorism and Financial Intelligence (TFI), which houses OFAC, for the purpose of "addressing human rights violations and corruption, including activities authorized by the Global Magnitsky Human Rights Accountability Act."¹²⁸ The Biden Administration's budget request for FY2022 similarly requests not less than $3 million for this purpose, and this amount is reflected in a committee-passed FY2022 appropriations bill in the House (H.R. 4345).¹²⁹ Through joint explanatory statements accompanying Department of State, Foreign Operations, and Related Programs Appropriations (SFOPS), Congress has also specifically directed not less than $1,000,000 and 1,500,000 respectively in FY2020 and FY2021 for Global Magnitsky implementation by relevant State Department units.¹³⁰

Congressional appropriators have also included some relevant directives for the Department of Justice (DOJ). House Appropriations Committee report language for FY2021 appropriations for DOJ (H.Rept. 116-455) "encourage[d] the Department to enhance efforts of the Criminal and Civil Divisions to assemble and vet the large number of case files of individuals and entities subject to sanctions under the Global Magnitsky Human Rights Accountability Act." The House Appropriations Committee report (H.Rept. 117-97) accompanying pending FY2022 appropriations would direct $1,000,000 for this purpose.

In considering whether and to what extent to continue to appropriate resources for Global Magnitsky Act implementation, Congress may weigh the goal of promoting robust implementation of the act against the opportunity costs of these resources amid various other funding priorities, including other sanctions programs.