FPI and CTR Analysis: Responding Effectively to Russia’s Anti-Gay Laws

December 6, 2013

Using the Magnitsky Act to Put Russian Oppressors of LGBT Citizens on Notice

By FPI Fellow James Kirchick and Managing Director of the Center for Transatlantic Relations Ambassador András Simonyi

Background

In June 2014, the Russian Duma unanimously passed a bill—which President Vladimir Putin signed into law—prohibiting so-called “propaganda of non-traditional sexual relationships to minors.” The following month, a law banning adoption by foreign same-sex couples, or even opposite-sex couples residing in countries where same-sex marriage is recognized, was enacted. Coming twenty years after the decriminalization of homosexuality in Russia, these measures marked the culmination of efforts by Russian municipal and regional authorities to target the country’s LGBT (Lesbian, Gay, Bisexual and Transgender) minority. Russian citizens found to be in violation of the federal statute can be fined 5,000 rubles (equivalent to roughly $150), businesses can be levied up to 1 million rubles and forced to close for up to 90 days, and foreigners face deportation.

Though these measures are ostensibly aimed at “protecting” children from sexually explicit material, their effect is to stigmatize sexual minorities and prevent them from engaging in a necessary conversation about civil equality and their place within Russian society. The federal statute effectively makes it illegal to speak about homosexuality in neutral (never mind positive) terms, bans public demonstrations demanding respect for gay people, and could even be used to arrest same-sex couples for holding hands in public. As such, the law violates universally binding norms concerning free speech, assembly, and association. Such norms are enumerated in Russia’s own constitution and laws, as well as those of the United Nations, Organization for Security and Cooperation in Europe (OSCE), and Council of Europe instruments, all to which Russia is party.

The legislative attack on Russia’s gay community must be seen in the context of the Putin regime’s broader assault on civil society. A year before the anti-gay legislation was enacted, the Duma passed a regressive law requiring non-profit organizations receiving funding from abroad to register as “foreign agents,” likening many pro-democracy and humanitarian groups to espionage fronts. Simultaneously, the Russian government expelled USAID and has continually harassed employees of European political foundations. Russian government officials, abetted by their political allies in the Orthodox Church, routinely speak of homosexuality as a decadent, Western import aimed at weakening Russia from within; Putin himself has justified official state homophobia by lamenting Europe’s declining birthrate, which he partially blames on gays.  These efforts simultaneously divert attention from government corruption, and also strengthen Putin’s political ties to Russian social conservatives. 

The anti-gay laws and hateful language deployed by Russian government officials have also created an atmosphere of impunity in which vigilantes feel empowered to harass and, in some cases, torture and kill gay individuals or individuals perceived to be gay. Thugs operating under the banner of an internet-based group called “Occupy Pedophilia” have taken to luring gay men via the internet and ruthlessly torturing them on camera, producing horrific Youtube videos. In May, two men in Volgograd brutally murdered a 23-year-old named Vladislav Tornovoi, allegedly after he revealed to them that he was gay. Tornovoi’s assailants have argued that their crime was an act of self-defense against a predacious homosexual – echoing the rhetoric of Russian officials. “The latest laws against so-called gay propaganda… have essentially legalized violence against LGBT people, because these groups of hooligans justify their actions with these laws,” Igor Kochetkov, of the Russian LGBT Network, told the Guardian earlier this year. “With this legislation, the government said that, yes, gays and lesbians are not valued as a social group.”

The Russian government’s actions have generated worldwide condemnation. Western activists, gay and straight alike, have launched a series of campaigns aimed at drawing international attention to the plight of Russian LGBT people. One of the earliest such campaigns encouraged the boycott of Stolichnaya vodka. Were Stolichnaya controlled in any way by the Russian state, this might have been an effective protest. But not only is the company a privately held concern; it is produced and bottled in Latvia, a country hardly enamored of Vladimir Putin or his foreign policy.

Similarly, some have called for a boycott of the Winter Olympics, to be held in the Russian resort town of Sochi in February 2014. This is unrealistic, as President Obama has already ruled out the possibility, noting that he looks forward to seeing “gay and lesbian athletes bringing home the gold or silver or bronze.” More importantly, Russia’s LGBT activists are not calling for a boycott, and rightly fear that calls for one will only embolden the bullies they face. Rather, they want the Olympic spotlight to be used to educate the world about their struggles.

Fortunately, a tool already exists for those seeking to change or at least impose a cost on the Russian government’s policies towards its LGBT citizens: The Sergei Magnitsky Rule of Law and Accountability Act. Passed last year with overwhelming and bipartisan majorities in both houses of Congress, this measure imposes visa bans and asset freezes on Russian citizens implicated in human rights abuses. As such, it is a meaningful and effective instrument in the West’s diplomatic arsenal through which to name, shame, and impose consequences on those who have engaged in gross human rights abuses against Russians.

The Magnitsky Act

The Magnitsky Act is named after Sergei Magnitsky, a 37-year-old Russian lawyer who was tortured and killed by Russian officials in 2009 after exposing a massive, $230 million tax fraud perpetrated by government figures who laundered their earnings in the United States. Despite the findings of a Russian presidential commission, which ruled that Magnitsky was essentially murdered through denial of medical treatment and physical abuse, the perpetrators of this heinous crime have since been awarded and promoted by the Kremlin. Tragically, the only person to face legal consequences in the matter has been the victim himself: this July, Magnitsky was found guilty, in abstentia, of tax fraud, the first and only Russian citizen to be tried and convicted of a crime posthumously.

The text of the Magnitsky Act stipulates that the U.S. government shall impose visa bans and asset freezes on people

…responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals seeking to expose illegal activity carried out by officials of the Government of the Russian Federation; or to obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections, in Russia.

While the law was named in honor of Magnitsky, it applies not just to those implicated in his particular case, but to any gross violation of human rights perpetrated by an official or private individual.

The Magnitsky Act is a particularly valuable tool because it targets the privileges that Russia’s kleptocratic elites most value – their wealth and access to the West.  The World Bank estimates that government corruption accounts for nearly half of Russia’s GDP, much of which is sheltered in overseas accounts or invested in expensive property along the Riviera or in London. The Magnitsky Act both threatens entrée to these fruits of the West, while simultaneously naming-and-shaming individuals with whom no self-respecting Western institution should be doing business.

Unlike proposed boycotts that would backfire by playing into the Kremlin’s victimization narrative, the Magnitsky Act also has the virtue of being popular among ordinary Russian citizens. According to the Levada Center, an independent non-governmental Russian polling firm, 44% of Russians support targeted western sanctions against corrupt officials, while only 21% oppose them. Whereas boycotts, however well intended, give the impression of penalizing the Russian people, targeted sanctions punish individuals. Not for nothing has Russian opposition leader Boris Nemstov declared the Magnitsky Act to be “the most pro-Russian law passed in the United States in the history of our countries.”

The impact of the Magnitsky Act is made clear by the Russian government’s virulent and cruel retaliation, which has been to bar adoptions by American couples of Russian orphans, and to openly threaten other governments with the same, should they take a hard line against the ongoing human rights crackdown in Russia. This is because the Russian leadership knows that human rights accountability would force “a very large schism among the Putin elite and a very high level of conflict and desertion from the elite of the more far-sighted individuals,” according to Nemstov.

Similarly, the application of the Magnitsky Act to officials implicated – directly, or through command responsibility – in gross violations of the rights of LGBT individuals would serve the broader purpose of weakening the Kremlin’s hold over Russian society and furthering the cause of liberal democracy. As part of a broader program of human rights pressure, it would encourage more ethical behavior by Russian officialdom on a whole host of issues, not just scapegoating gays.

Application of the Magnitsky Act to Abusers of LGBT Individuals and Allies

The Magnitsky Act was inspired, in part, by the 1974 Jackson-Vanik Amendment, which tied U.S. trade relations to the right of free emigration, especially for Jews residing in the then-Soviet Union. Because of its success, Congress repealed Jackson-Vanik in 2012 and adopted instead the Magnitsky Act, updating the human rights agenda with regard to Russia. The Magnitsky Act builds upon the vaunted tradition of Jackson-Vanik, linking apparently disparate issues such as trade and human rights.

The text of the Magnitsky Act stipulates that it applies to any Russian citizen “responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals seeking…to obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly.” The law can clearly be used, then, against those vigilantes who have committed acts of violence against gay people or people perceived to be gay. While many of these vigilantes likely have no assets in foreign bank accounts, nor the intention of traveling to the West, they often act with either the explicit or implicit support of Russian officials, and so naming-and-shaming them could have a bottom-up effect in pressuring the Russian government. It could also increase tension in the system when Russian government officials feel compelled to either publicly denounce or defend such targets of Magnitsky list sanctions. This may help reveal and erode some of the plausible deniability that is built into Russia’s abuse of LGBT individuals.

Furthermore, U.S. policymakers and the administration should explore whether Magnitsky Act sanctions could be used against municipal government officials, such as city administrators in Moscow and St. Petersburg who have systematically denied gay rights activists the ability to hold peaceful demonstrations, as well as those police officials and officers who have routinely beaten demonstrators. While no settled, legal definition of what constitutes a “gross violation of internationally recognized human rights” exists, a convincing argument can be made that the institutionalized denial of freedom of association, as well as the assault on those who attempt to exercise that freedom, qualify. There are a number of definitions and some may not apply, but even so, this law seeks to expand and set precedent.

Magnitsky Act provisions may also implicate those officials responsible for authoring and promoting the federal statute barring so-called gay “propaganda.” The law is a fundamental violation of Russian citizens’ right to free expression, and a discriminatory one, in that it specifically targets individuals expressing support for gay civil equality as well as gay people who merely speak of their existence as gay individuals. When asked by the authors of this paper, Senator Ben Cardin, a co-sponsor of the Act, said that, “Yes, the Magnitsky Act can be used against those who violate the human rights of LGBT Russians or anyone else for that matter.  The law was written to be inclusive and not limited. We continue to seek ways that it can be broadened further.”

Potential Names for Inclusion in Magnitsky List

The following are individuals who have either directly engaged in violence against Russia’s LGBT community, abused their positions of public authority to further such crimes, or championed the laws that undermine the basic human rights of LGBT individuals in Russia.  While not an exhaustive list, it is indicative of those who should be scrutinized under an appropriately inclusive and broadened interpretation of the Magnitsky Act:

Maxim Martsinkevich is the founder of the vigilante group, “Occupy Pedophilia,” whose members violently harasses gay men and post videos of their exploits on the internet. Also known as “Tesak” (Machete), Martsinkevich claims to have fled the country in order to avoid arrest, yet the Russian government has yet to file an Interpol notice, which they routinely do for political and business opponents. American officials should work to determine whether Russian law enforcement officials are either collaborating with Martsinkevich, or deliberately avoiding investigation of him. If so, American officials should propose their names for inclusion in the Magnitsky list.

Alexei Trifonov is the head of the Russian government’s Anti-Extremism Center branch in the city of Nizhny Novgorod. Ostensibly formed to combat neo-Nazis and Islamic extremists, the Anti-Extremism Center is more often used to harass and intimidate opposition activists. In June, a Twitter account allegedly belonging to Trifonov threatened local gay activist Viacheslav Revin, who had used the social media platform to criticize a member of the Duma who abstained on the vote on the gay propaganda bill. Days later, according to a report in Buzzfeed, Trifonov allegedly took part in the abduction of an opposition activist, during which he filmed a group of masked individuals dumping an anthill on top of the man and then proceeding to beat him for an hour. The Twitter account allegedly belonging to Trifonov then boasted of the attack and posted a picture of the brutalized activist’s face. Revin, fearing a similar fate, has since fled to the United States, where he is seeking asylum.

Vitaly Milonov, who belongs to Putin’s United Russia party, is a member of the Legislative Assembly of St. Petersburg and the author of that city’s 2012 ban on “sodomy, lesbianism, bisexualism, and transgenderism among minors,” which partly inspired the federal law. Earlier this year, he endorsed the arrest of gay athletes at the Sochi Olympics should they be deemed to be “promoting homosexuality” to minors. In November, following an attack on a gay man working for LaSky, an HIV-prevention organization, Milonov said LGBT activists are “asking to be punched.” Milonov went on to endorse violence against LGBT and pro-gay rights individuals, stating that, “When a foreign agent openly offends my family, as a Russian man I deliver him a kick.” The lack of a serious police response to the attack on LaSky and the potential collusion of government officials in protecting the attackers may also warrant adding St. Petersburg police officials to the Magnitsky list.

Yelena Mizulina, a United Russia deputy in the Duma and head of its Family, Women and Children Committee, is the author of the law banning homosexual “propaganda.” As such, she is the most visible government figure behind the Russian government’s attack on the rights of its LGBT citizens. Earlier this year, she persuaded state prosecutors to open a criminal case against a Russian gay activist who had criticized her, stating that he ought to be sentenced to community service “somewhere where he can’t be involved in gay propaganda, like in a morgue van."

Conclusion

The Kremlin’s assault on gays, just as they are gaining legal equality in America and Europe, offers yet one more example of how Putin’s Russia is not only regressing from global human rights norms, but also seeking to redefine and destroy the global human rights framework.

Activists in the West have been right to raise alarm bells about the Russian government’s inhumane policies, yet their responses to the problem have thus far been scattershot and ineffective. For those hoping to put a swift end to this ignominious crusade targeting a vulnerable minority, the Magnitsky Act shows a way forward

Russians, especially elites such as President Putin, should understand that their future as a prosperous society depends upon modernization and embracing the principles and practices of the rule of law. The LGBT community is a valuable asset to any society. Guaranteeing and protecting its rights will be mark the dividing line between liberal and illiberal societies; it will serve as a litmus test of societal decency. The mistreatment of the LGBT community is rightly viewed as a canary in the coalmine: a warning that democracy has gone off the tracks. America and Europe will be watching before, during, and after the Olympics. Unlike the athletes, this issue will not go away when the lights in Sochi are out.

 

James Kirchick is a journalist and fellow with the Foreign Policy Initiative. András Simonyi is the former Hungarian Ambassador to the United States and currently the Managing Director of the Center for Transatlantic Relations at the Paul H. Nitze School of Advanced International Studies at the Johns Hopkins University.

 

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