Written evidence submitted by Gillian McKay (PhD Candidate, University of Leeds) (IEF0010)

ABOUT

1         Gillian McKay is a PhD Candidate in the School of Politics and International Studies at the University of Leeds. Her research is focused on the United Kingdom’s approach to mass atrocity prevention and is being undertaken in collaboration with the Aegis Trust, supervised within the European Centre for the Responsibility to Protect, and funded by the Economic and Social Research Council. Her academic background is in psychology and human rights law, and she has previously worked in the humanitarian and development sectors.

SUMMARY

2         This submission responds to the Committee’s interest in understanding the effectiveness of the UK’s sanctions regime on human rights, specifically in preventing mass atrocity crimes. It speaks to the need to monitor human rights abuses and atrocity risks, the UK’s thus-far inconsistent application and weak enforcement of its new ‘Magnitsky-style’ sanctions, and opportunities for imposing ‘positive’ and ‘negative’ sanctions to ensure that the proceeds of atrocity crimes are no longer welcome in the UK.[1]

Sanctions as Atrocity Prevention

3         The Responsibility to Protect (R2P) doctrine comprises three pillars: (i) a primary responsibility to prevent atrocity crimes within a state’s own borders, (ii) a responsibility to assist and encourage other states to uphold their R2P, and (iii) a responsibility to work collectively with the international community to halt ongoing or imminent abuses where a state is ‘manifestly failing’ to fulfil its R2P.[2] Sanctions are most commonly associated with Pillar III action insofar as they might be imposed to coerce an immediate change in state behaviour (also referred to as an ‘operational’ approach to prevention). Another approach might be the threat of sanctions or the imposition of more ‘positive’ inducements which encourage a state to not commit atrocities. These are more in line with Pillar II responsibilities and longer-term, ‘structural’ approaches to atrocity prevention.[3]

4         There are several ways sanctions can contribute to atrocity prevention.[4] First, sanctions are a means by which the international community can ‘name and shame’ perpetrators of atrocity crimes or by which it can signal its disapproval of a certain norm violation/violator. Second, sanctions can be imposed to constrain state behaviour by (significantly) raising the cost of perpetrating such crimes versus not. And, importantly, third, they can also ensure accountability and deter future atrocities. Regardless of which approach is taken – whether attempting to coerce or constrain state behaviour or signal disapproval – monitoring human rights abuses and early atrocity risks is critical to ensuring effective prevention and accountability. Effectively documenting crimes and mapping perpetrator networks in this way, however, requires a cross-government effort supported by civil society that has yet to be established in the UK.[5]

5         Sustainable Development Goal 16 - on building ‘peace, justice and strong institutions’ – shares many of the same goals as R2P, and the two have been described as ‘mutually reinforcing’.[6] Amongst other targets, and of most relevance to this submission, Goal 16.4 seeks to ‘significantly reduce illicit financial and arms flows, strengthen recovery of stolen assets, and combat all forms of organised crime’ by 2030.[7] Given that mass atrocity crimes are so often intrinsically linked to organised crime and illicit finance, addressing these problems offers governments new opportunities to prevent them.[8]

Effectiveness of the UK’s Global Human Rights Sanctions Regime

6         The UK’s Magnitsky sanctions regime is still relatively new and not overly transparent, thus making it difficult to evaluate its performance in any great detail. Moreover, defining sanctions ‘effectiveness’ is in itself challenging because successful atrocity prevention is not only difficult to prove but the academic literature on sanctions is divided when it comes to mitigating atrocity crimes specifically.[9] Having said that, there are two ways in which the UK’s new sanctions regime clearly falls short of the ‘seismic shift’ in policy and practice that was anticipated following the UK’s withdrawal from the European Union.[10]

7         First, it is applied inconsistently. Saudi Arabia provides an illustrative example. Magnitsky sanctions were rightly imposed on 20 individuals implicated in the murder of journalist Jamal Khashoggi in 2020,[11] yet there are still no sanctions on any Saudis responsible for mass atrocity crimes in Yemen. In China, too, some officials implicated in the Xinjiang atrocities have been sanctioned under the regime but the alleged primary architect for the Uyghur genocide - Chen Quanguo, also responsible for atrocities in Tibet - remains untouched.[12] Such inconsistency could be due to a variety of reasons, but a lack of political will and what REDRESS has referred to as ‘diplomatic convenience’ likely plays some role. Without a consistent approach to imposing human rights-based sanctions, the sanctions regime is likely to lose credibility where trade and other investment relations take priority over atrocity prevention.

8         A second weakness in the UK’s new human rights sanctions regime relates to enforcement. Despite sanctions on Belarusian President Lukashenko, for example, his aircraft has flown in and out of UK airspace despite an asset freeze and travel ban having been imposed since 2020.[13] This seems to be, at least in part, due to a lack of joined-up working across government and with the private sector, but, as witnesses recently told the Committee in an evidence session on the UK’s response to the crisis in Ukraine, sanctions implementation overall seems to be poorly resourced and somewhat risk-averse.[14] Much like the consistency problem noted above, weak enforcement also undermines the credibility of any sanctions regime, meaning that any potential leverage the UK has in this regard is ultimately lost.

Opportunities Going Forward

9         Pillar II responsibilities under R2P require that states assist others before mass atrocities break out. In this way, encouraging ‘positive’ sanctions in preferential trade agreements could be one way in which the UK can discharge its responsibility to help prevent atrocity crimes. An incentivising approach like this ultimately seeks to assign or promise economic benefits in order to influence the behaviour of the target state.[15] The trade negotiations with India[16] – where the risk of atrocity crimes is currently high[17] – could therefore be a key opportunity to encourage the Modi government to uphold its primary R2P.

10     Pillar III responsibilities instead require a more ‘timely and decisive’ response from the international community once a state is ‘manifestly failing’ to prevent atrocities. In this way, enforcing ‘negative’ sanctions might include punitive measures like arms embargoes or disrupting economic relations.[18] This kind of restrictive approach has had mixed results in practice, however. One of the main issues identified in this regard is ‘sanctions-busting’ whereby the efficacy of sanctions is undermined by an increase in other states’ trade with a target country, thereby counteracting any deficit lost through sanctions. By implementing secondary sanctions on third parties, like those supporting the military junta in Myanmar,[19] for example, might be one way in which such sanctions-busting practices could be avoided.

11     For both ‘positive’ and ‘negative’ approaches, the Government must assess the potential impact of sanctions when considering which individuals and entities it needs to target. This requires effective network mapping and analysis to ensure that the sanctioning state understands the complex nature of the varying criminal and political structures involved in funding or otherwise facilitating mass atrocity crimes.[20] It also necessitates an understanding of the various temporal or other factors (e.g., regime-type) that might influence sanctions success.[21] In the UK context, both call for more coordinated cross-government working and communication, as well as more proactive engagement with civil society to inform such analysis from a grass-roots perspective.

CONCLUSION

12     Specifically designed to deter and provide accountability for serious human rights abuses,[22] sanctions are seen by the UK ‘as part of an integrated approach to promote our values and interests, and to combat state threats, terrorism, cyber-attacks, and the use and proliferation of chemical weapons’.[23] However, by not explicitly acknowledging the role that sanctions can play in preventing mass atrocity crimes - as one tool to be implemented as part of a wider strategy for atrocity prevention - the UK continues to lag behind other states like the United States, which has recognised the role that tackling illicit finance can play in atrocity prevention.[24]

March 2022