{"id":4205,"date":"2020-09-14T15:11:05","date_gmt":"2020-09-14T19:11:05","guid":{"rendered":"https:\/\/wrmcouncil.org\/?p=4205"},"modified":"2022-05-04T11:27:44","modified_gmt":"2022-05-04T15:27:44","slug":"magnitsky-counterpoint-the-case-against-individual-asset-claims","status":"publish","type":"post","link":"https:\/\/wrmcouncil.org\/es\/news\/opinion\/magnitsky-counterpoint-the-case-against-individual-asset-claims\/","title":{"rendered":"Magnitsky Counterpoint: The Case Against Individual Asset Claims"},"content":{"rendered":"

In their thoughtful Policy Magazine<\/em> essay titled The Case for a New and Improved MagnitskyLaw<\/em><\/a>, Irwin Cotler and Brandon Silver suggest ways to strengthen the Justice for Corrupt Foreign Officials Act<\/em><\/a>. <\/em>Some of the steps that Cotler and Silver propose are welcome, including a Canada-led effort to achieve greater international coordination of Magnitsky sanctions.<\/p>\n\n\n\n

We believe, however, that one of their proposals is ill-conceived, and would do more harm than good in our shared efforts to achieve accountability for human rights abusers and justice for their victims. We refer to their call for a process allowing individual victims of abusers, and their families, to claim a share of frozen assets that are confiscated and repurposed by court order.<\/p>\n\n\n\n

To go back to the beginning, the idea of confiscating and repurposing frozen assets originated (as Cotler and Silver point out) with the World Refugee and Migration Council. The Council\u2019s 2019 report, A Call to Action,<\/em><\/a> drew upon the Swiss experience with a similar law, and argued that where corrupt foreign officials stash money in Canadian banks, the Canadian government should be able not only to freeze the money, but also apply to the court for an order permitting it to confiscate and use the purloined cash for the benefit of those forcibly displaced by the corrupt government.<\/p>\n\n\n\n

“Where corrupt foreign officials stash money in Canadian banks, the Canadian government should be able not only to freeze the money, but also apply to the court for an order permitting it to confiscate and use the purloined cash for the benefit of those forcibly displaced by the corrupt government.”<\/p><\/blockquote>\n\n\n\n

The principle can be illustrated by a hypothetical involving the Venezuelan strongman Nicol\u00e1s Maduro, whose cruel and corrupt regime has forced millions of Venezuelans to flee into Colombia and other regional states. The Council proposed that if, for example, Maduro and his cronies were to deposit in Canada money looted from the Venezuelan treasury, Canada\u2019s Attorney General should be able to seek the court\u2019s authority to confiscate those funds. (In such a case, the moneys could not simply be returned to the Venezuelan government for obvious reasons.) The court would then oversee their orderly disbursement in a way most likely to assist those displaced as a result of Maduro\u2019s misrule, whether by funding the Colombian government to provide social services, by providing the money to UNHCR or an international NGO for direct assistance, or otherwise. Distribution of the proceeds would be carried out in a transparent manner, entirely under public oversight provided by the court.<\/p>\n\n\n\n

The Council\u2019s proposal envisaged a simple, straightforward process aimed at achieving both accountability for the wrongdoers and assistance for those in desperate and urgent need. While that process might evolve over time into a more sophisticated system, the Council\u2019s proposal provides a workable, scalable point of departure.<\/p>\n\n\n\n

WATCH: Holding Kleptocrats to Account panel discussion<\/a> <\/h3>\n\n\n\n

As noted by Cotler and Silver, a private member\u2019s bill, the Frozen Assets Repurposing Act<\/em><\/a>, (or \u201cFARA\u201d) was introduced in the Senate last year to give effect to this recommendation, although FARA has since died on the order paper.<\/p>\n\n\n\n

Cotler and Silver support the repurposing of frozen assets, but argue that legislation should be broadened to also permit claims against the confiscated funds by individual victims of, say, the Maduro regime, and the families of those victims.<\/p>\n\n\n\n

We contend that such a change would significantly weaken the Council\u2019s frozen assets proposal, and render its important purpose much more difficult to achieve:<\/p>\n\n\n\n