Australia must use its Magnitsky-style sanctions more effectively to deter hostage diplomacy

Australia’s recent decision to deploy Magnitsky-style sanctions against 13 individuals and three entities from Russia and Iran is an important symbolic step, albeit one expected to have a negligible real-world impact.

Magnitsky sanctions are designed to target individuals accused of gross corruption or human rights abuses by means of asset freezes and travel bans. They are an innovative tool that, if employed judiciously, could play a meaningful role in deterring and punishing behaviour by individuals who might otherwise get away with their crimes.

However, to be most effective, Magnitsky sanctions should be enacted swiftly and in a multilateral and coordinated fashion. This has not been the case for Australia’s use of its regime since it was legislated in December 2021. In sanctioning Iranian and Russian figures, Australia is following the lead of other, more proactive Western states like Canada and the US, which listed many of the same individuals and entities months, or even years, ago.

Whether it’s their symbolic power of naming and shaming otherwise shadowy individuals, or in coordinating the international freezing of ill-gotten assets held offshore by corrupt and abusive officials, Magnitsky needs to be used sharply and smartly.

One sphere in which thematic Magnitsky-style sanctions could be used with prospects for real-world impact is hostage diplomacy, which is a form of arbitrary detention. The term ‘hostage diplomacy’ reflects the fact that detained citizens are usually bartered or traded in exchange for financial or diplomatic concessions. The practice is on the rise in authoritarian states like Iran and Russia, which are looking to compensate for their international isolation by finding points of diplomatic pressure against the West. The recent return of the American basketball player Brittney Griner from a Russian labour camp in exchange for notorious Russian arms trafficker Victor Bout, known as the ‘merchant of death’, is a classic case in point.

Iran is a prolific hostage-taking state, with a history extending back to the post-revolution US embassy crisis of 1979. In the past three months alone, more than 40 foreign nationals have reportedly been arrested in Iran, many of them tourists. Australian citizens have also been targeted on a number of occasions, with the Iranian government typically demanding prisoner swaps. The Department of Foreign Affairs and Trade has admitted that Iran currently holds at least one Australian citizen in its prisons. So far, Australia has declined to take action to censure Iran over its repeated use of Australian citizens as bargaining chips to leverage concessions from Canberra.

Deficiencies in international legal frameworks and a lack of consensus on how to approach hostage diplomacy have meant the issue has been left to fester. The 2021 Canada-led Declaration Against Arbitrary Detention in State-to-State Relations, a voluntary statement endorsed by 67 countries including Australia, aspires to foster ‘a global common front against arbitrary arrest, detention and sentencing in diplomatic relations’ and is a welcome first step. However, the declaration falls short of suggesting mechanisms through which the international community can combat the practice, and is largely symbolic in nature. As a result, each target country has had to invent its own standalone policy responses to the wrongful detention of its citizens, and there is often no coordination, or even consultation, between countries.

A coordinated tranche of Magnitsky sanctions targeting the individual perpetrators of state hostage-taking could be a way for signatories of the declaration to takes steps to discourage and disincentivise the wrongful arrest of their citizens. Because Magnitsky sanctions can be targeted at the individual level, known perpetrators such as prosecutors, judges and members of the security services who contribute to the arrest and incarceration of foreign visitors for leverage can be publicly identified, named and shamed, and subjected to travel bans and asset freezes.

This would enable states to conceptualise hostage diplomacy as a kind of business model, with an identifiable pattern of operations and perpetrators who are often repeat offenders.

Officials involved in the wrongful arrest and detention of foreign visitors are usually not well-known public figures, and rather typically seem to operate in the shadows. Naming these perpetrators and identifying their activities as part of a systemic practice would erode attempts by hostage-taking states to draw on criminal-justice arguments to justify each individual arrest. This is an important point, as most arbitrarily detained citizens are subject to some form of judicial or court proceedings in the arresting country.

Even though many such trials clearly do not uphold international standards of justice, Western governments tend to be reluctant to openly criticise the judicial process for fear of being seen to interfere in another country’s internal affairs. In states like Iran and China, where such trials often fit a particular pattern, identifying and sanctioning those involved would expose the practice of hostage diplomacy for what it is.

Foreign Minister Penny Wong’s decision to draw on Australia’s Magnitsky-style laws to sanction a narrow cross-section of Russian and Iranian human rights abusers sends a largely symbolic message that Australia is prepared to act, albeit in a slow-moving and risk-averse fashion, to call bad actors to account.

While the government’s use of Magnitsky sanctions should be commended, it should consider the spirit and purpose behind the global Magnitsky movement: targeted sanctions with practical, real-world impact, ideally applied cumulatively via cooperation between like-minded states.

To achieve this, thematic Magnitsky sanctions targeting specific types of human rights abusers, such as officials involved in hostage diplomacy, could potentially be more effective than the current ad hoc, scattergun approach.