Special Features

Congress Needs Human Rights Assurances To Support Russia MFN Vote

Originally Published by Inside US Trade
July 15, 2011

There is a growing sense in Washington that members of Congress will need assurances on human rights if they are to agree to grant Russia permanent most-favored nation (MFN) status, which is necessary if U.S. companies are to fully benefit from Russia acceding to the World Trade Organization.

In a July 7 statement, House Foreign Affairs Committee Chairman Ileana Ros-Lehtinen (R-FL) argued that extending permanent MFN and ushering Russia into the WTO is “simply not an option” until Russia is pressed to improve its human rights record. A congressional aide said this sentiment is shared by other members of Congress.

According to an informed source, the White House opposes directly linking improvements in Russia’s human rights situation to Russia’s WTO accession, but since January has nonetheless been advancing the idea that Congress should consider separate human rights legislation this year.

The White House wants to head off a situation where Congress would put off a vote on extending permanent MFN status due to objections on human rights abuses or lack of democracy in Russia, this source said.

President Obama raised both human rights abuses and WTO accession in July 13 discussions with Russian Foreign Minister Sergey Lavrov, according to a White House statement, although that statement gave no indication that Obama directly linked the two issues.

In particular, Obama discussed the death of Sergei Magnitsky, a Russian lawyer who died in government custody after uncovering a massive tax fraud by Russian government officials. Obama also reaffirmed U.S. support of Russia’s efforts to complete its accession to the WTO this year, and discussed other issues as well, according to the White House statement.

Ros-Lehtinen has no direct jurisdiction over the MFN vote, but she could use her chairmanship to sway the House leadership to take her position, sources said. Alternatively, she could devise her own human rights bill that would fall under the jurisdiction of her committee.

In April, Mike McFaul, the White House National Security Adviser on Russia, said that members alarmed about Russia’s human rights record could back legislation that would penalize Russian officials found to have contributed to Magnitsky’s death and are involved in other gross human rights abuses (Inside U.S. Trade, April 22).

The bill in question is sponsored by Sen. Ben Cardin (D-MD) and would authorize the United States to impose a travel ban and financial sanctions on Russian individuals believed to have been directly involved in Magnitsky’s prison death. It would also ban U.S. visas and freeze U.S. assets of Russian individuals found to be directly involved in other gross violations of human rights, such as murder, torture or imprisonment.

Cardin’s bill currently has 18 co-sponsors, including fellow Finance Committee members Sen. Jon Kyl (R-AZ) — who also serves as the Senate Republican whip — and Sen. Robert Menendez (D-NJ). Senate Majority Whip Richard Durbin (D-IL) has also signed on to the bill. The measure is pending before the Senate Foreign Relations Committee.

In the House, a more limited bill is pending before the Judiciary Committee. The House bill would only apply visa bans and asset freezes to those directly involved in Magnitsky’s death but not other human rights violations.

The legislation may become a required trade off for some senators to support the administration’s push to get a vote on permanent MFN and the repeal of the Jackson-Vanik amendment in Congress, according to a congressional aide. Delay in moving this legislation may lead to a delay in the Jackson-Vanik vote, he said.

Passing this legislation could give political cover to members who are nervous about voting in favor of permanent MFN for Russia because they could also support a measure that addresses Russia’s human rights abuses.

The congressional aide acknowledged that the asset freeze may not have a large financial impact due to the fact that many Russian individuals in question do not have assets in the United States or could easily pull their assets out once they know they are subject to an investigation.

But it will put pressure on the European Union, which is also considering a similar policy for freezing assets and banning visas for questionable Russian individuals, to adopt a similar model. This is significant because many Russian individuals keep many of their assets in the EU and travel frequently to EU member states, this source said.

By banning the entry of Russian individuals to the United States, this source said the bill would make a strong symbolic statement to a country whose population is eager to immigrate to the United States and find opportunity here.

The White House is considering formally supporting the legislation in response to growing criticism in Congress over Russia’s human rights issues, but is facing opposition from the State Department, according to an informed source.

The State Department has been cautious toward the White House fully supporting Cardin’s bill, asking instead for a non-binding version or a “sense of the Congress” resolution, according to a congressional source.

State is the lead agency in the bill to carry out the visa ban and will work with the Treasury Department to freeze assets of individuals listed.

State has made it clear that it wants sufficient due process provisions to accompany any kind of asset freeze carried out by the Treasury Department, such as a verification process to make sure assets frozen truly belong to someone listed.

Additionally, State is concerned that the bill’s provision that would allow any member of Congress to submit a request for an individual to be investigated for possible sanctions under the law and require a response within 30 days might expose the department to unreasonable requests by congressional members wishing to make political statements.

A congressional source said that some of its objections could be addressed by having the legislation limit requests only to the chairmen and ranking members of the relevant committees and giving State 90 days to respond to a request, according to a congressional source.

The Sergei Magnitsky Rule of Law Accountability Act of 2011, S. 1039, is a reintroduction of a bill first proposed by Cardin last year but not pushed in the lame-duck session so as not to jeopardize the ratification New Strategic Arms Reduction Treaty (START), which Cardin supported.

The bill may have more traction this year not only because of Russia’s pending WTO accession but because many senators “went out on a limb” for the administration to approve New START despite human rights concerns at the end of last year.

Members of Congress this year were confronted by a spate of events this year that reflect poorly on Russia’s human rights record. These included the news that high-profile Russian prisoner Mikhail Khodorovsky was convicted a second time, extending his prison sentence to at least 2016, the congressional source said.

The 2003 imprisonment of Khodorovsky, a former Russian oil tycoon, has been criticized in the United States as a heavy-handed response to Khodorovsky challenging the power of then Russian President Vladimir Putin.

Additionally, Russia has stated that it will not honor the terms of New START if the United States pursues a missile defense program in Europe because Russia considers it a threat to its security. The terms of the treaty allow for the United States to pursue missile defense efforts, sources said.

The bill may also gain more support after Russia banned the formation of an opposition party this year and had, for a time, instituted a travel ban that prohibited two of the party’s organizers from leaving Russia. The travel ban was overturned last week, sources said, most likely in response to the fact that a travel ban was directly contradictory with the Jackson-Vanik amendment’s provisions on the free movement of people.

The Jackson-Vanik amendment is part of Title IV of the Trade Act of 1974 and makes MFN conditional on Russia’s emigration policy. For Russia the amendment was meant to pressure the country to allow the free emigration of its Jewish population but it applies to the movement of all people. If the amendment is repealed by Congress, it gives the president the authority to grant permanent MFN to Russia, which will allow the United States to take advantage of the tariff and trade commitments that Russia will make as part of its WTO accession.

The United States has granted Russia conditional MFN for many years recognizing the fact that Russia no longer restricts the movement of its people.

War Crimes Prosecution Watch, Vol. 6, Issue 8 — July 18, 2011

Volume 6, Issue 8 — July 18, 2011

INTERNATIONAL CRIMINAL COURT

Central African Republic & Uganda

Darfur, Sudan

Democratic Republic of the Congo

Kenya

Libya

AFRICA

International Criminal Tribunal for Rwanda

EUROPE

European Court of Human Rights

Court of Bosnia & Herzegovina, War Crimes Chamber

International Criminal Tribunal for the Former Yugoslavia

Domestic Prosecutions In The Former Yugoslavia

MIDDLE EAST AND ASIA

Extraordinary Chambers in the Courts of Cambodia

Special Tribunal for Lebanon

Bangladesh International Crimes Tribunal

War Crimes Investigations in Burma

NORTH AND SOUTH AMERICA

United States

TOPICS

Terrorism

Piracy

Universal Jurisdiction

Gender-Based Violence

REPORTS

UN Reports

NGO Reports

TRUTH AND RECONCILIATION COMMISSIONS

Honduras

Ivory Coast

Kenya

Sri Lanka

Thailand

COMMENTARY AND PERSPECTIVES

WORTH READING

War Crimes Prosecution Watch is a bi-weekly e-newsletter that compiles official documents and articles from major news sources detailing and analyzing salient issues pertaining to the investigation and prosecution of war crimes throughout the world. For more information about War Crimes Prosecution Watch, please contact warcrimeswatch@pilpg.org.

Human Rights Watch Calls For United States To Investigate Bush, Other Top Officials For Torture

Originally published by Human Rights Watch
11 July 2011

(Washington, DC) – Overwhelming evidence of torture by the Bush administration obliges President Barack Obama to order a criminal investigation into allegations of detainee abuse authorized by former President George W. Bush and other senior officials, Human Rights Watch said in a report released today. The Obama administration has failed to meet US obligations under the Convention against Torture to investigate acts of torture and other ill-treatment of detainees, Human Rights Watch said.

The 107-page report, “Getting Away with Torture: The Bush Administration and Mistreatment of Detainees,” presents substantial information warranting criminal investigations of Bush and senior administration officials, including former Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, and CIA Director George Tenet, for ordering practices such as “waterboarding,” the use of secret CIA prisons, and the transfer of detainees to countries where they were tortured.

“There are solid grounds to investigate Bush, Cheney, Rumsfeld, and Tenet for authorizing torture and war crimes,” said Kenneth Roth, executive director of Human Rights Watch. “President Obama has treated torture as an unfortunate policy choice rather than a crime. His decision to end abusive interrogation practices will remain easily reversible unless the legal prohibition against torture is clearly reestablished.”

If the US government does not pursue credible criminal investigations, other countries should prosecute US officials involved in crimes against detainees in accordance with international law, Human Rights Watch said.

“The US has a legal obligation to investigate these crimes,” Roth said. “If the US doesn’t act on them, other countries should.”

In August 2009, US Attorney General Eric Holder appointed Assistant US Attorney John Durham to investigate detainee abuse but limited the probe to “unauthorized” acts. That meant the investigation could not cover acts of torture, such as waterboarding, and other ill-treatment authorized by Bush administration lawyers, even if the acts violated domestic and international law. On June 30, Holder accepted Durham’s recommendation to carry out full investigations of two deaths in CIA custody, reportedly from Iraq and Afghanistan. Human Rights Watch said that the narrow scope of Durham’s inquiry failed to address the systemic nature of the abuses.

“The US government’s pattern of abuse across several countries did not result from the acts of individuals who broke the rules,” Roth said. “It resulted from decisions made by senior US officials to bend, ignore, or cast the rules aside.”

In citing the four top-level Bush administration officials, Human Rights Watch said that:

  • President Bush publicly admitted that in two cases he approved the use of waterboarding, a form of mock execution involving near-drowning that the United States has long prosecuted as a type of torture. Bush also authorized the illegal CIA secret detention and renditions programs, under which detainees were held incommunicado and frequently transferred to countries such as Egypt and Syria where they were likely to be tortured;
  • Vice President Cheney was the driving force behind the establishment of illegal detention and interrogation policies, chairing key meetings at which specific CIA operations were discussed, including the waterboarding of one detainee, Abu Zubaydah, in 2002;
  • Defense Secretary Rumsfeld approved illegal interrogation methods and closely followed the interrogation of Mohamed al-Qahtani, who was subjected to a six-week regime of coercive interrogation at Guantanamo that cumulatively appears to have amounted to torture;
  • CIA Director Tenet authorized and oversaw the CIA’s use of waterboarding, stress positions, light and noise bombardment, sleep deprivation, and other abusive interrogation methods, as well as the CIA rendition program.

In media interviews, Bush has sought to justify his authorization of waterboarding on the ground that Justice Department lawyers said it was legal. While Bush should have recognized that waterboarding constituted torture without consulting a lawyer, there is also substantial information that senior administration officials, including Cheney, sought to influence the lawyers’ judgment, Human Rights Watch said.

“Senior Bush officials shouldn’t be able to shape and hand-pick legal advice and then hide behind it as if it were autonomously delivered,” Roth said.

Human Rights Watch said the criminal investigation should include an examination of the preparation of the Justice Department memos that were used to justify the unlawful treatment of detainees.

Human Rights Watch also said that victims of torture should receive fair and adequate compensation as required by the Convention against Torture. Both the Bush and Obama administrations have successfully kept courts from considering the merits of torture allegations in civil lawsuits by making broad use of legal doctrines such as state secrets and official immunity.

An independent, nonpartisan commission, along the lines of the 9-11 Commission, should be established to examine the actions of the executive branch, the CIA, the military, and Congress, with regard to Bush administration policies and practices that led to detainee abuse, Human Rights Watch said. Such a commission should make recommendations to ensure that the systematic abuses of the Bush administration are not repeated.

In February 2011, Bush cancelled a trip to Switzerland, where alleged victims of torture had intended to file a criminal complaint against him. An investigation implicating US officials in torture is under way in Spain. Documents made public by Wikileaks revealed that US pressure on Spanish authorities to drop the case has continued under the Obama administration.

Human Rights Watch said that the US government’s failure to investigate US officials for the torture and ill-treatment of detainees undermines US efforts to press for accountability for human rights violations abroad.

“The US is right to call for justice when serious international crimes are committed in places like Darfur, Libya, and Sri Lanka, but there should be no double standards,” Roth said. “When the US government shields its own officials from investigation and prosecution, it makes it easier for others to dismiss global efforts to bring violators of serious crimes to justice.”

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To download the report “Getting Away With Torture” or view other related materials, please visit the HRW page.