Three Reasons why Australia must still never have a Magnitsky Act.
Late last year, I wrote this piece after retiring MP Michael Danby, member of the UK based neoconservative Henry Jackson Society, introduced draft legislation for an Australian Magnitsky Act, but insufficient time and lack of interest, ended his attempt. With an upcoming Federal Election, Browder and followers are sure to try again.
Many versions of “The Magnitsky Act” have been enacted by nations who claim to protect human rights, to have due process, the presumption of evidence, and the protection of a fair trial. The Magnitsky-type Acts are egregious acts of legislative hypocrisy, stripping away the rights we hold sacred, merely because the targets are citizens of another country, that we hypocritically deem to be an abuser of human rights.
One: Violation of Human Rights
The first Magnitsky Act in the United States, not only abused the human rights of its targets, they were arbitrarily targeted on the word of one man, William Browder. They were not billionaire oligarchs, not organised crime figures, or even politically connected to Vladimir Putin, they were public servants, police detectives, court prosecutors, ordinary people, whose reputations were stained for life. They were named as global human rights violators, murderers and money launderers, by the most powerful state in the world. None were charged with any crime in Russia, the only offence they committed was to investigate Browder’s criminal activities inside Russia. Browder was using tax-minimisation schemes, shell companies in Cyprus, bankrupting his own companies, and leaving shells for authorities to find. In any event, an American, who gave up his US citizenship for taxation purposes, whose questionable reputation was well known, should never have been able to sanction anyone he named, to settle scores in Russia.
On principle, this alone is enough reason to reject such a draconian piece of legislation. The so-called human rights activists claim they care about those in third countries and forcefully argue they must have their human rights protected. Lobbying for such arbitrary, unfair law, they throw all judicial protections out the window. If passed, they become state sponsored human rights abusers, and they hypocrisy has no bounds.
Two: Sanctions against individuals for state crimes are deeply unfair.
The second reason why Australia should never have a Magnitsky Act is that it is a deeply flawed way to sanction any nation which is accused of human rights abuses. Many cases of abuse occur with states, due to structural problems, due to organisational discrimination, due to organised crime, due to corruption within organisations, due to human error, where no individual can ever be said to be directly at fault. These countries can be criticised for being slow to enact changes, and in extreme cases, even enact traditional economic and cultural sanctions, but to punish individuals with limited personal responsibility, even the head of state, is unfair, and will do little to bring about the desired outcome.
For example, Australia has already put sanctions on Russia for their alleged part in the MH17 disaster, the outrage has been expressed, why do it twice? No-one had suggested Russia deliberately set out to provide Ukrainian separatists with a system to specifically shoot down a passenger plane. The separatists were subject to daily air attack from the Ukrainian state that they believed was illegitimate. There was a Ukrainian duty of care, to close the airspace over a conflict zone.
There is a dangerous precedent being set, when one country unilaterally blames another for some crime, and when the second country protests its innocence, they are further damned for not admitting their guilt, and expected to prostrate themselves, to beg forgiveness. This is the same violation of due process writ large, with trial by media, then the accused country is denied access to any of the evidence that allegedly proves their crime.
If there is a good reason, which can be verified, impose sanctions, making it personal, inventing a false pretext, is counterproductive for long term relations and can quickly lead to armed conflict.
Three: Browder’s story is fabricated, the Magnitsky Act is a fraud.
The third reason why Australia must not have a Magnitsky Act is that William Browder cannot substantiate even minor parts of his story. The first time he was cross-examined in a western jurisdiction, he simply could not make his case.
Browder travels the world telling his story, the same story he had ghostwritten in his book “Red Notice”. Not only has his story changed over time, he consistently describes Magnitsky as a “young Moscow lawyer he hired in 2006”. In fact, Magnitsky had no legal qualifications, never went to law school, and was by profession a taxation accountant and auditor, contracted to Browder’s company Hermitage Capital by auditing firm Firestone-Duncan, in 1998. Browder was unable to identify Magnitsky’s signature on a tax declaration form, from 2001. It is entirely possible Browder never met Magnitsky since he was expelled from Russia in 2005 for illegal share transactions in the Russian energy giant Gazprom.
It is not necessary to overemphasise this point. The case for a Magnitsky Act might be made, independent of Browder’s deception. However, given that Browder has used this highly emotional story to advance such an Act, his credibility must be examined, and if his story is wanting, it ought to be another reason to reject such flawed law out of hand.
In 2013, soon after the passage of the first Magnitsky Act, and the sanctioning of Browder’s accusers in Russia, a decision was made to run a legal test case, to establish Browder’s story and the basis for the Magnitsky Act in US case law.
Browder secretly passed a brief of evidence to the US Attorney in the Southern District of New York, Preet Bharara, subsequently a Russian national Denis Katsyv was sued in a civil trial, for receiving funds from a tax fraud allegedly “discovered” by Magnitsky, and used to buy real estate in the State of New York. The characters in this drama are well known, the Russian lawyer Natalia Veselnitskaya, the US law firm Baker-Hostetler, researcher Glenn Simpson, and Browder himself. The case lasted almost four years, most of which was due to Browder either evading subpoenas or making appeal after appeal to disqualify Baker-Hostetler and to have his first deposition set aside.
The case ended with a settlement, where the defendant was absolved of any involvement in Magnitsky’s death, involvement in the alleged $230 million tax fraud, and any money laundering. The peculiarities of the US system meant that Katsyv still had to pay $6 million, and the US government had frozen his assets in the Netherlands. As soon as the funds were released, Browder’s lawyers persuaded the Netherlands to refreeze the assets, using the same old story. Again extreme attempts to deny natural justice, despite the fact Browder had just delayed court proceedings for four years, already denying natural justice for Katsyv. This was the very reason, Veselnitskaya sought a meeting with Donald Trump Jr, to complain about her client’s treatment within the US legal system.
It is only sufficient to show that Browder is untrustworthy, and an unreliable witness, the fact he publicly pushes a well-prepared narrative, but cannot substantiate his story under oath in a court of law.
Browder will continue to give interviews across Australia, peddling these falsehoods, and no news organisation seems willing to do their job and challenge him.
The transcript of Browder’s 15 April 2015 Deposition can be found here:
https://100r.org/media/2017/10/Browder-Deposition-April-15-2015.pdf
Or
https://www.scribd.com/document/369985486/Browder-s-First-Deposition-April-15th-2015
Investigative reporter Lucy Komisar, has produced a comprehensive report on Browder for the award-winning “100Reporters” site, dedicated to exposing transnational criminal activities.
https://100r.org/2017/10/magnitsky/
Please read the full article, it is well sourced and all references are provided.
In US vs Prevezon Holdings Ltd., as case which Browder himself initiated, and provided the US Attorney all the evidence, when it came to testifying, Browder became very reluctant to testify under oath, running away three times to avoid being served:
Six hour, six part video deposition by Bill Browder, verified by the official transcript above:
“https://www.youtube.com/watch?v=OERp5GCwOnk&list=PLd4Mlks-hYL-IZUOi7EHujFNrGcv5gl8p&index=2”
I believe this is sufficient evidence that Bill Browder cannot be taken on his word, that he deliberately misrepresents both his own criminal activities, and the identity of Sergei Magnitsky, the reasons for his arrest, and the manner of his untimely death, which was a medical condition exacerbated by the poor conditions.
In typical Browder form, he is on the record, on separate occasions, that Magnitsky died of natural causes, was tied up and left to die, was tied up and beaten with rubber batons until dead, and finally tortured to death, by the prison guards.
Browder tells Chatham House about the circumstances of Magnitsky’s death, a month earlier, in December 2009:
“I don’t know what they were thinking. I don’t know whether they killed him deliberately on the night of the 18th, or if he died of neglect”
“They put him in a straight jacket put him in an isolation room and waited 1 hour and 18 minutes until he died” — 6 Dec 2010.
“They put him in an isolation cell, tied him to bed, then allowed eight guards too beat him with rubber batons for 118 min until he was dead” — 13 Dec 2011.
https://youtu.be/32AqentzbOQ
Browder simply has no credibility, which is why the case was settled. Only a small number of agreed points, rather than the whole Browder story, was enshrined in US case law. An innocent man was persecuted for four years, just for being Russian, was the victim of a legal shakedown, and a convenient target for Browder and the US government.
In conclusion:
For all these reasons, the violation of all human rights and judicial protections we value in the west, the arbitrary nature of the charges without due process, the complete mismatch between sanctioning individuals for injustices which occur due to institutional failures and bureaucratic organizations, there must not be a Magnitsky Act in Australia.
In addition, it is clear that these Acts are targeted selectively for geopolitical reasons, far worse regimes than Russia get a free pass, while an entire act is created due to a single death, due to many failures, and due to intense lobbying by a convicted criminal who fabricated his story. There is an anti-Russian industry in the US and UK specifically, whose aim is to ultimately depose Vladimir Putin, the elected President of Russia, and this is a major part. Indeed, Browder has openly said, that by sanctioning the “Oligarchs”, many who have committed no crime, Magnitsky related or otherwise, they may turn against Putin and remove him from power. This is another example of the abuse such a legislative instrument, there can be no such act in Australia.
Go away Bill Browder, Australia values fairness, honesty and the rule of law, such things are poisoned by your mere presence, go away and stop interfering in our internal affairs.
