Executive Summary

Abuses of media freedom around the world are stifling speech and shredding the very fabric of democracies. As the publisher of The New York Times has observed, over the last few years, ‘a growing number of governments have engaged in overt, sometimes violent’ efforts to discredit the work of journalists and ‘intimidate them into silence’. [1] Similarly, the UK Parliament’s Foreign Affairs Committee has observed that ‘an unfree media is spreading … from countries that are leading by bad example’.[2]

This grim conclusion is supported by data. Annual reports on democracy record that ‘media freedom has been deteriorating around the world over the past decade’ in ‘open societies and authoritarian states alike’.[3] Of all the indicators that go into defining a liberal democracy, freedom of expression and the media are ‘the areas under the most severe attack by governments around the world’,[4] through censorship of the media[5] as well as ‘more nuanced efforts to throttle’ an independent press.[6]

The threats faced by journalists and the media today are varied as well as extensive. They include: (i) extra-judicial killings; (ii) torture and other cruel and inhuman and degrading treatment; (iii) abductions and physical abuse; (iv) unfounded arrest, unfair trial and arbitrary detention; (v) other forms of persecution, including through the enforcement of excessive libel laws, the filing of frivolous lawsuits or financial investigations, threats and online harassment, surveillance and ‘doxing’ of sources; and (vi) systemic restrictions on the media, including limitations on licencing, accreditation and financing as well as shutdowns of entire media outlets and internet communications. Such measures have led to a ‘worldwide assault on journalists’, an ‘assault on the public’s right to know, on core democratic values’ and, ultimately, on ‘the concept of truth itself’.[7]

In the last two years alone, over 130 journalists and media workers have been killed.[8] India and Brazil, two of the world’s largest democracies, have some of the highest murder rates of journalists.[9] In approximately one out of four murders, the prime suspects have been government or military officials.[10] And the vast majority of these murders have gone unpunished.11 In addition, 165 journalists reporting on armed conflict were killed in the last decade while reporting from war zones.[12]

Journalists are also frequently silenced through false charges, unfair trials and lengthy prison terms. In 2019, over 250 journalists around the world were in prison ‘for their work’, including an increasing number for allegedly spreading ‘false news’.[13]

Targeted sanctions are an international tool that can be used to respond to human rights violations by freezing individuals’ assets and banning their entry into certain countries. They can be imposed unilaterally by governments, or by a small group of governments acting together. And they target individuals or corporate entities rather than entire states.

Targeted sanctions can be deployed in response to a range of conduct, including terrorism and corruption as well as violations of human rights. And their targets can range from governmental officials to police, prosecutors and judges; from high-ranking ministers to lower level henchmen; from private businessmen to multinational companies complicit in human rights violations. The idea is that ‘[i]f all advanced democracies, with desired banks, schools and hospitals, adopted [human rights-based sanctions] laws and pooled information and target lists, the pleasures available to the cruel and the corrupt would be considerably diminished. They will not be put in prison, but they will not be able to spend their profits as and where they wish, nor travel the world with impunity. They may then come to recognise that violating human rights is a game not worth the candle’.[14]

Sanctions help to shine a spotlight on misconduct and signal a state’s disapproval of it.[15] They constitute a form of accountability.[16] And they help to maintain pressure on the responsible actors, to deter them from continuing their abusive behaviour and discouraging third parties from doing the same.[17] At a time when multilateral efforts to enforce human rights through the UN Security Council and international criminal courts are in decline, targeted sanctions can be one of the few ways, or in some cases the only way, to enforce international norms.

The effect of targeted sanctions, especially financial sanctions, can be very significant. Indeed, sanctions by just one powerful state that has a national ‘Magnitsky’ regime can be instrumental in changing the behaviour of individuals who are violating human rights norms, particularly if that state is a key travel destination and occupies a central position in the global financial system.[18] And the impact of financial sanctions imposed by one country can go far beyond that country’s borders. For example, a person subject to US sanctions is usually not able to access their bank account or other assets in the US, effect any US dollar transaction, hold US dollars in any account, or buy a product from a person or entity subject to US sanctions jurisdiction without authorisation from the US government.[19]

Despite the significant potential for sanctions to become a human rights enforcement tool with real ‘teeth’, states have been slow to enact human rights based sanctions regimes or to use them in response to the repression of journalists and restrictions on freedom of the media. There are, so far, only three major national legislative frameworks for the imposition of targeted sanctions worldwide against those responsible for human rights violations. These exist in the US, in Canada and in the UK, although the UK regime is not yet fully operational.[20]

Such laws are often referred to as ‘Magnitsky laws’, after Sergei Magnitsky: a lawyer murdered after exposing large-scale corruption in Russia whose case inspired the adoption of new sanctions legislation in the US.[21] These laws allow states to maintain a list of sanctions targets without regard to whether the state in which the conduct occurs has been designated for sanctioning on a countrywide basis.[22] In some countries they exist alongside other laws allowing the imposition of sanctions on a country basis or on a thematic basis in response to criminal activity, such as terrorism or corruption. The EU and UN also generally apply country-based sanctions that have in some instances been responsive to large-scale human rights abuses.[23]

Even in the handful of states in which they exist, ‘Magnitsky laws’[24] have rarely been used to protect journalists or counter systemic attacks against the media. Targeted sanctions were not used to respond to the killing of 50 journalists or the imprisonment of any of the 250 journalists who were detained ‘for their work’ in 2019.[25] And as the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions reported, the limited sanctions imposed in the wake of the chilling murder of Washington Post journalist Jamal Khashoggi ‘fail[ed] to correspond to the gravity of the crime’.[26] Although 173 states have ratified the International Covenant on Civil and Political Rights, guaranteeing the right to freedom of expression,[27] and more recently over 30 states have signed the Global Pledge on Media Freedom,[28] there is clearly a long way to go before the commitments that have been made on paper translate into tangible action.

This report recommends that signatories to the Global Pledge on Media Freedom and other key governments adopt targeted sanctions regimes that are designed and applied to protect journalists and media freedom as well as respond to other human rights abuses. Such measures would help to ensure that journalists, media professionals and others engaged in journalistic activities[29] can carry out their work without harassment, intimidation, false imprisonment or violent attack. The report also recommends amendments to the application of existing targeted human rights sanctions regimes to achieve this purpose.

Given the scope of the Panel’s mandate, this report focuses on the elements of sanctions regimes that are most relevant from the perspective of protecting journalists and a free press. It does not seek to provide an exhaustive analysis of legal issues relevant to sanctions regimes in general. In particular, the report does not assess the substantial due process protections that must be provided to targets of sanctions regimes given the potentially severe impact of sanctions,[30] some of which can also affect family members of individuals who are targeted[31] as well as the broader community.[32] The Panel, however, wishes to stress that it considers such protections to be essential to a fair sanctions regime that complies with international human rights law.

In its analysis and recommendations, the report focuses on three issues related to sanctions that are most relevant in the context of the media:

• the appropriate scope of human rights abuses that should trigger the imposition of sanctions (i.e. what should be included);
• the appropriate targets of a sanctions regime (i.e. who should be included); and
• the appropriate triggering mechanisms for a targeted human rights sanctions regime (i.e. how it should be activated).

The report recommends that laws relating to targeted sanctions for violations of international human rights norms should be drafted, interpreted and applied in a manner that is broad enough to encompass the principal ways in which media freedom is being abused. In addition, it recommends that multilateral organisations, including the EU, and the governments of key jurisdictions worldwide, including those that have become banking centres and playgrounds for potential sanctions targets, should consider adopting targeted human rights sanctions regimes.[33] The specific recommendations to governments and multinational institutions are:

• States and multilateral institutions, such as the EU, should introduce or amend existing sanctions regimes so that they are global in scope and responsive to serious human rights abuses;
• States should not limit sanctions to abuses involving a particular class of victims; States should use a threshold for the imposition of sanctions that covers serious abuses of international human rights law and international humanitarian law;
• States should use international human rights law and international humanitarian law to guide their drafting, interpretation and application of human rights-based sanctions regimes;
• States should make clear either in sanctions legislation or policy that the unjust imprisonment of journalists meets the threshold for sanctions and that prosecutors and judges, as well as officials, may be sanctionable;
• Sanctions should be used to respond to serious systemic restrictions on media freedom, including shutdowns of the internet;
• States should ensure that sanctions can be applied to non-state actors, including companies;
• States should ensure that sanctions can be applied to secondary participants, including those complicit in the abuses;
• States should ensure that sanctions can be applied to their nationals;
• States should provide a role for an expert committee that is independent of the executive branch of government in determining targets for sanctions; and
• A coordination committee should be established to coordinate information and efforts of key partners, including the US, UK, Canada and the EU.

States that say they believe in media freedom should introduce laws and policies that will help to protect journalists in the real world by raising the cost of abusive conduct. A consistent use of targeted sanctions when journalists are killed and arbitrarily imprisoned would help to raise international awareness and shift the default from impunity to accountability. There is an important opportunity for states to lead with a new paradigm: that when the media is attacked, targeted sanctions will be a counter-attack. Governments that truly wish to protect journalists should seize it.

Read the full report below or download it here.

Citations:

[1] The New York Times, ‘The Growing Threat to Journalism Around the World’, 23 September 2019.

[2] House of Commons Foreign Affairs Committee, ‘“Media Freedom is Under Attack”: The FCO’s Defence of an Endangered Liberty’, 4 September 2019, HC 1920, para. 6.

[3] Freedom House, Freedom and the Media 2019: A Downward Spiral, June 2019, p.2.

[4] V-Dem Institute, V-Dem Democracy Report 2019, May 2019, p.5.

[5] V-Dem Institute, V-Dem Democracy Report 2019, May 2019, p.18.

[6] Freedom House, Freedom and the Media 2019: A Downward Spiral, June 2019, pp.2, 4, 28

[7] The New York Times, ‘The Growing Threat to Journalism Around the World’, 23 September 2019.

[8] Committee to Protect Journalists, CJP Data of Journalists and Media Workers Killed between 2018 and 2020 (as of 17 January 2020).

[9] When it comes to targeted killings, the worst countries for the period 2015-2019 are: Mexico – 21; Afghanistan – 11; Syria – 10; India – 10; Brazil – 10. See CPJ Database.

[10] See Committee to Protect Journalists, ‘Getting away with Murder’, 27 October 2016 (analysing journalists’ murders that took place between 2006 and 2016).

[11] See Committee to Protect Journalists, ‘Getting away with murder’, 29 October 2019.

[12] Committee to Protect Journalists, ‘CJP Data of Journalists Killed in Crossfire between 2010 and 2020’. See also International Committee of the Red Cross, The Protection of Journalists and the ICRC Hotline – FAQ, 1 November 2017.

[13] See Committee to Protect Journalists, ‘CPJ Data of Journalists in Jail for their Work’ (as of 22 January 2020) and Committee to Protect Journalists, ‘China, Turkey, Saudi Arabia, Egypt are World’s Worst Jailers of Journalists’, 11 December 2019.

[14] Geoffrey Robertson and Chris Rummery, ‘Why Australia needs a Magnitsky Law’, Oct-Dec 2018, Australian Quarterly, Vol. 89, No. 4, p.27.

[15] See paragraph 24 below.

[16] See paragraph 24 below.

[17] See paragraph 24 below.

[18] This includes the US dollar, the British pound and the euro, but has reportedly led some states targeted by US sanctions in recent years to look to crypto-currencies or alternative currencies to evade the imposition of sanctions. See e.g. The Telegraph, ‘Russia Plans to Tackle US Sanctions with Bitcoin Investment, Says Kremlin Economist’, 14 January 2019.

[19] The US primary sanctions jurisdiction applies to (i) a US citizen or permanent resident, regardless of where the individual lives or by whom the individual is employed, (ii) a legal entity organised under US law and its non-US branches (but not its non-US subsidiaries), and (iii) any person or entity in the U.S. The US primary sanctions against Iran and Cuba also reach non-US entities that are owned or controlled by a US person. See also David S. Cohen and Zachary K. Goldman, ‘Like It or Not, Unilateral Sanctions Are Here to Stay’, (2019) 113 AJIL Unbound 146, p.150.

[20] See paragraphs 37, 52 and 112 below. Also see paragraphs 36 and 38 below.

[21] US Treasury, ‘FAQ: Global Magnitsky Sanctions’, 21 December 2017. See also Sergei Magnitsky Rule of Law and Accountability Act, Public Law 112–208—DEC. 14, 2012.

[22] Many jurisdictions also include human rights abusers on sanctions lists under country-specific sanctions regimes, on the basis of the person’s connection with the country that has been sanctioned: see e.g. paragraphs 94, 96, 97, 103, 115, 118 and 119 below.

[23] See paragraphs 80-81 and 120-123.

[24] The terms ‘Magnitsky laws’ and ‘Magnitsky legislation’ are used throughout the report as shorthand to refer to national laws that allow for the global use of targeted sanctions, such as asset freezes and visa bans against individuals on human rights grounds.

[25] See Committee to Protect Journalists, CPJ Data Journalists Killed 2019 (as of 3 February 2020); Committee to Protect Journalists Frequently Asked Questions (as of 5 February 2020); Committee to Protect Journalists, ‘China, Turkey, Saudi Arabia, Egypt are world’s worst jailers of journalists’, 11 December 2019.

[26] UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, ‘Annex to Report: Investigation into the Unlawful Death of Mr. Jamal Khashoggi’, 19 June 2019, A/HRC/41/CRP.1 (the “Callamard Report on Khashoggi Annex”), para. 443. Visa bans were also imposed by other EU member states unilaterally, including France and Germany. This response was criticised by the UN Special Rapporteur as being too limited overall: Callamard Report on Khashoggi Annex, paras. 177, 179 and 438-40.

[27] See UN Office of High Commissioner for Human Rights, Status of ratification, 14 January 2020 (International Covenant on Civil and Political Rights).

[28] See Foreign and Commonwealth Office, ‘Global Pledge on Media Freedom’, 11 July 2019.

[29] Journalists, media professionals and others engaged in journalistic activities are referred to generally as ‘journalists’ for the purposes of this report. In addition, ‘press’ and ‘media’ are used interchangeably

[30] For an overview of due process issues arising in the context of sanctions, see e.g. James Cockayne et al, ‘Fairly Clear Risks: Protecting UN Sanctions’ Legitimacy and Effectiveness Through Fair and Clear Procedures’, United Nations University: 2018, pp.21-25; Matthew Happold, ‘Targeted Sanctions and Human Rights’, in Matthew Happold and Paul Eden (Eds.), Economic Sanctions and International Law, Hart: 2016, pp.109-111. See also Elena Chachko, ‘Foreign Affairs in Court: Lessons from CJEU Targeted Sanctions Jurisprudence’, (2019) 44(1) Yale Journal of International Law, pp.14-18; Council of the EU, ‘Basic Principles on the Use of Restrictive Measures (Sanctions), 7 June 2004, 10198/1/04 REV 1; Elena Chachko, ‘Due Process Is in the Details: U.S. Targeted Economic Sanctions and International Human Rights Law’, (2019) 113 AJIL Unbound, pp.157-162; Rachel Barnes, ‘United States Sanctions: Delisting Applications, Judicial Review and Secret Evidence’, in Matthew Happold and Paul Eden (Eds.), Economic Sanctions and International Law, Hart: 2016, pp.209-223.

[31] See paragraph 49 below.

[32] See e.g. Council of the EU, ‘Basic Principles on the Use of Restrictive Measures (Sanctions)’, 7 June 2004, 10198/1/04 REV 1, para. 6: ‘[s]anctions should be targeted in a way that has maximum impact on those whose behaviour we want to influence. Targeting should reduce to the maximum extent possible any adverse humanitarian effects or unintended consequences for persons not targeted or neighbouring countries’. Also see Africa Union Commission, ‘The Chairperson of the African Union Commission Calls for the Lifting of Economic Sanctions Imposed on Zimbabwe’, 25 October 2019 (highlighting the negative impact that international sanctions have on the economy and people of Zimbabwe).

[33] See paragraph 86 below.