Orville Taylor | Tread cautiously on Magnitsky Law

United States Secretary of State Mike Pompeo is spot on in the zero-tolerance approach to corruption and human rights abuses. Nothing guarantees peace and human well-being more than the equal and fair treatment of others by others and the understanding that no one is beyond the reach of the rules or the law. “Human-rights abusers will have no refuge within our jurisdictions,” he tweeted, echoing what is the epitome of what is good and right about America.

It came at the tail-end of a press release on International Human Rights Day, December 10, 2020, and International Anti-corruption Day on December 9. Pompeo was on target, acting based on the Global Magnitsky sanctions programme, “corrupt actors and human rights abusers worldwide. These actions target actors across the globe who disregard individuals’ human rights and international standards to prevent and combat corruption”.

Although the Magnitsky initiative is now the purview of the current administration, it is a bi-partisan statute, passed in 2012 under the Barack Obama presidency, and represents deep American consensus. Taking its name from the victim, Russian tax lawyer Sergei Magnitsky, who died in a Moscow prison in 2009, its primary aim is to hold malefactors accountable. Magnitsky, a ‘whistleblower’ who alleged state fraud, corruption, and human rights violations, was arrested and incarcerated in 2008 and mysteriously died one week before the state would have been forced to bring him to trial under a sort of habeas corpus law.

This month, the European Union (EU) also passed its equivalent of the American act, both of which, essentially,( i) block the perpetrators from entering their countries; (ii) freeze their assets; and (iii) red-mark them from accessing any funds from any national of the USA or the EU. Among the lesser sanctions are official reprimands, such as those that the Americans have issued against six former members of the Jamaica Constabulary Force’s elite, Crime Management Unit (CMU) who were freed by a jury in our high court after being charged with the capital offence.

HUMAN RIGHTS VIOLATIONS

Although found not guilty, they have been cited by the Americans, under the legislation, “for their involvement in gross violations in human rights in Jamaica”. However, the CMU did indeed take the lives of several suspects under circumstances described by human rights activists as extrajudicial.

A similar American law has been used as well in the past. Introduced by Democratic Senator Patrick Leahy in 1997 and reformatted as the Foreign Assistance Act in 2011 under the Obama government, it essentially restricts military and other strategic aid to nations or units within countries that engage in “a consistent pattern of gross violations of internationally recognised human rights”, with impunity. Chief on the list are, of course, the aforementioned extrajudicial killings.

Yet inasmuch as I am totally in support of punitive sanctions against any government, entity, or person that traverses any boundary of human rights, I have bit of unease as regards how we draw the lines. Both the EU and the USA, along with the UK, all have jury trials for certain crimes. In Jamaica, where, surprisingly, I am advised that juries convict a higher percentage of accused than bench trials, we pride ourselves on our democracy, independence of the judiciary, and judicial process. Like these ‘First World’ countries, the rule of law and the binding effect of an independent verdict, however repugnant, reflects a commitment not to act extrajudicially.

Therefore, when a properly constituted court, with no state interference, allows one who the entire country and the world believes to be as guilty as sin, to walk free, what do we do? Indeed, there have been many cases where the public has been unhappy with verdicts. In the USA, OJ Simpson was freed of murder, Vybz Kartel is serving a long sentence despite the view by large numbers of Jamaicans that he should not have been convicted.

As a matter of fact, there is one murder case, where the evidence was so imposing, and a sex-with-minors matter with DNA evidence that still stick in my mind today. In the case of the former, there are persons who felt so strongly about the finality of a jury’s decision that there was great malice expressed over exercise of the constitutional rights of free speech and dissemination of information when the public opined on these two issues on the Hotline on Radio Jamaica 94FM.

So, my concern is, what is the standard that we use in determining that a person is guilty of extrajudicial violations of human rights without ourselves breaching their rights not to be tried twice for the same crime? How can we guarantee that the accused was not truly innocent outside of a court setting?

It might seem easy, but it is not as clear in black or white as one thinks.

- Dr Orville Taylor is head of the Department of Sociology at The University of the West Indies, a radio talk-show host, and author of ‘Broken Promises, Hearts and Pockets’. Email feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.