Oireachtas Joint and Select Committees
Wednesday, 1 May 2013
Joint Oireachtas Committee on Foreign Affairs and Trade
The Case of Mr. Sergei Magnitsky: Motion (Resumed)
The following motion was moved by Senator Jim Walsh on Tuesday, 6 March 2012: That the Joint Committee on Foreign Affairs and Trade –- noting that the Russian lawyer, Mr. Sergei Magnitsky, died on 16 November 2009 at the age of 37, after being systematically denied medical care and beaten by riot guards with rubber batons in a Russian pre-trial detention centre, after he uncovered and exposed a major corruption scandal in Russia; and - noting the passage in December 2012 of the U.S. Magnitsky Law, the European Parliament Report into establishing common visa restrictions for Russian officials involved in the Mr. Sergei Magnitsky case, the OSCE Parliamentary Assembly resolution and the Parliamentary Assembly of the Council of Europe Written Declaration, all calling for visa sanctions for the perpetrators of this crime; - calls on the Government to impose an Irish Magnitsky Law which would:- publicly list the names, - deny visas into Ireland, and - freeze any assets found in Ireland,of Russian government officials and others who -- were responsible for the false arrest, torture and death of Mr. Sergei Magnitsky, - perpetrated or financially benefited from the crimes that Mr. Sergei Magnitsky uncovered and exposed, and-or - participated in the cover up of those responsible for those crimes;- calls for the Irish Magnitsky law to be imposed against all other gross human rights violators; - calls on the Government to use its Presidency of the Council of the European Union to impose EU-wide visa sanctions as called for by the European Parliament. Debate resumed on amendment No. 1:To delete all words after “Foreign Affairs and Trade” and insert - “- noting the tragic and untimely death in undisclosed and mysterious circumstances on 16th November 2009 of Mr Sergei Magnitsky, then aged 37; - the passage of resultant legislation in other jurisdictions; and - the discussions in the European Parliament, the OSCE and the Council of Europe arising therefrom; - calls on the Government to –- liaise with the Russian authorities with a view to seeking reassurance in relation to compliance with international human rights legislation; - ensure that any issues arising are fully investigated and a report provided for perusal by the international community; and - calls on the Government to use its Presidency of the Council of the European Union to highlight its concern and that of the international community at the issues surrounding Mr. Magnitsky's death and the reiteration of its resolve to ensure a full and final report into the circumstances of the case.”.- (Deputy Bernard Durkan).
We will resume in public session on the motion on Sergei Magnitsky, a Russian lawyer who died in police custody in 2009 and who, after his death, is being prosecuted on charges of tax evasion.
Let us return to 6 March. Senator Walsh tabled a motion, which is before the committee. Deputy Durkan tabled an amendment to it and moved it on 17 April. Following discussion at the last meeting, I asked Deputies Eric Byrne and Maureen O'Sullivan to re-examine the situation. They have drafted a second motion, which has been circulated to members. We will discuss the three proposals together, but the motion from Deputies Byrne and O'Sullivan may not be moved until Senator Walsh's motion and Deputy Durkan's amendment have been dealt with.
I ask the Chairman to bear with me as I am relatively new to the committee. I thank the Chairman and committee for nominating me and Deputy Maureen O'Sullivan to try to come up with wording that was fair to the proposer of the original motion and the amendment. I took it terribly seriously. I have had sleepless nights while working out how best to present to the committee a motion that would interpret fairly accurately the desire of the presenter, Bill Browder, on behalf of his employee, who died in very strange circumstances in a Russian jail. If one calls a spade a spade, very few other governments, notwithstanding the position of the OSCE and the European Parliament, will repeat the exact formula used by the Americans in the change of legislation. A lot of politicians are supportive of saying something, but very few governments are prepared to sit down and talk. A number of us threw in our lot in support of the motion suggested. I was so concerned I tabled an amendment calling for an Irish Magnitsky law to be imposed against all other gross human rights violators. I was not just thinking of one man in the international arena in Russia but of tyrants all over the world. It would be lovely to impose sanctions if one could do so. One also has to think about who the tyrants are and where they are based.
I applaud Bill Browder and his company, Hermitage Capital Management, for being so loyal to his employee who died. I ask the committee to tease out how we can apply sanctions and best represent the interests of human rights activists throughout the world. For example, on Friday we will unveil a list of human rights front-line defenders. The President will speak in support of their rights. If the committee used Senator Walsh's motion and started to list the names and addresses of people and the roles they played in incidents, and one wanted to be fair to all victims of human rights, one would be in a crazy world trying to document those who abused people.
If one thinks about it a little more deeply one must wonder: if this is done for Sergei Magnitsky, what about other Russians, such as the oligarch Mikhail Khodorkovsky who is, allegedly, suffering in a Siberian prison? Does one create a wealth of support for one man, who is a legitimate case, in isolation from every other victim of human rights abuses? How, as a committee comprised of politicians concerned about human rights, do we give other victims their rights?
Men from all over the world were plucked up by rendition and were sent to tyrants in Egypt or Jordan to be tortured and have confessions extracted from them. Some of them ended up in Guantanamo Bay. How does one apply the concerns of the committee for the rights of all individual victims of human rights abuses, such as those to be unveiled by Mary Lawlor on Friday when she lists front-line defenders highlighted as being in need of support? The formula proposed by Senator Walsh is unworkable and, in any case, does not have political support in any country outside America. We should use traditional and workable political lobbying, as our motion states, by using the Presidency of the Council of the European Union - the Tánaiste is the man in charge - to engage with the Russians, as the motion states, to highlight issues concerning the death of Sergei Magnitsky and try to ensure that those responsible are brought to justice under basic international human rights laws.
Unfortunately, Deputy O'Sullivan has been delayed and cannot be here. We tortured ourselves in trying to be as fair as we possibly could in moving in what we feel is the right, serious and honest way forward. If Parliament was to change laws it would take years. I would like to think that if people such as the human rights defenders who will be honoured on Friday were exposed to danger we would have on the Statute Book a formula that could make people accountable for the abuse of their citizens. That is another day's work.
I appeal to the members to treat this issue as a human rights issue. As the Tánaiste says, the correspondence is extraneous to this debate in a sense that correspondence from an embassy to this committee should be responded to. I ask for this to be adopted as the fairest composite way of dealing with this very delicate issue.
Good. I was contacted by Deputy Maureen O'Sullivan during the week. The motion was read to me over the telephone and I took a note of it. It seems to me to be pretty reasonable. I think we are moving towards something that will accommodate everyone. I have also spoken to Senator Jim Walsh and I believe that with the addition of a couple of words the motion could be agreed unanimously. It is important for the committee to do this. This was a man who apparently was tortured and killed. He was murdered, in other words. The prima facie evidence is very clear about that. I agree this happens all over the world. We know that sometimes even our allies are guilty of human rights abuses. However, I think that, like myself, Deputy Byrne believes, after some agonising, that we should take a stand to the degree that is practical in this instance. I think it is necessary that we do and that we have some degree of courage. However, we have to be realistic. There is no point in our saying we are going to exile Mr. Putin to Siberia, for example, because it is ultra vires, beyond our powers. Blocking people's assets might be appropriate in America but I do not think it would work in this case because I do not think they have any here, for a start. If they do then they are pretty small assets.
It is important that the committee take a stand against this. I know the Chairman did not agree with me when I said that Russia was blackmailing us. However, I draw his attention to the fact that among the material distributed to the committee members by the Chairman's office was a report from The NewYork Times which said that in Moscow the Russian Government had warned in a letter to Ireland's Parliament that it may halt negotiations on an agreement for cross-border adoptions if an Irish parliamentary committee approves a regulation critical of rights abuses in Russia. That is pure blackmail.
I have had no immediate cause for complaint against The New York Times. Perhaps it simply has not recognised my existence, as a previous contributor was kind enough to point out. It is a very important report. I also know that if this report was inaccurate, our very efficient Department of Foreign Affairs and Trade would have countermanded it. We also know from various sources that it is true.
This use of children is tragic and revolting. The Russian Government should be thoroughly ashamed of itself. It has led to quite a large number of rather sad letters from Irish people, including one in particular that caught my attention, from a couple who had already adopted a Russian child. They were very anxious that a second adoption from Russia, which would have provided a sibling with the same cultural, religious and linguistic background, should not be interrupted. These people are being used as weapons against this committee. Irish citizens are having their maternal and paternal feelings wrung by a cynical Russian Government. I think we have to take a stand on that issue. The human rights of the children involved in adoptions should be treated independently of the nasty political motives of various governments, whether in the West or in the East.
I had no great difficulty with the emendations proposed by Deputies O'Sullivan and Deputy Byrne but I strongly support Senator Walsh - a very unusual position for me. I think it would be possible for him when he speaks to introduce those couple of words which would, as I understand, merely express the committee's support for the work of the European Parliament and its resolutions. In my view, that would be a middle way, and it could be despatched at that point.
Yes, please. I thank Deputy Eric Byrne and Deputy Maureen O'Sullivan for their conscientious work in trying to draft something which would be achievable and practical, as Deputy Byrne said. I acknowledge they have done a reasonably good job. I was not wedded to my original motion, even though I would have liked to see it being passed. I will concentrate on the new motion that has been tabled. I note the change to the motion which will ensure consensus and to which Senator Norris referred. I have two suggestions in advance of that change. I like the way the preamble is drafted. In particular, I acknowledge that the Tánaiste's comments at last week's meeting were very good. Deputy Byrne has drawn on those comments. He has also kindly shown us the documents from which he has drawn some of that preamble. I refer to the comments by the Tánaiste, who said that the decision last month by the investigative committee of the Russian Federation to close the criminal investigation into Mr. Magnitsky's death was highly regrettable. He said that he shares the strongly-worded concerns which were expressed by Catherine Ashton on the issue. He calls on the Russian authorities to reopen the investigation. I ask if we could include this comment as being noted. I refer to the last paragraph of the motion. We ask the Presidency to reiterate its resolve to ensure a full and final report into the circumstances of the case. The case was closed on 29 March 2013. We might need to add some nuances to that, because it is not completely accurate. We propose to ensure that those found responsible be held to account in accordance with international law. I ask for clarification on this point. We know that those responsible have been exonerated in the Russian courts. I do not know if they can be retried. I suggest this as part of a tidying-up process. The change I seek is the one to which Senator Norris referred - that we use the Presidency of the Council of the European Union to support the European Parliament recommendations. We are calling upon the Tánaiste to do that. I have talked to Deputy Byrne about an alternative. He thinks that may not happen anyway. The minimum we should do - if we are not calling on the Government to do it - would be to include the words "that the Joint Committee on Foreign Affairs and Trade notes ... and supports the European Parliament." Either we support the European Parliament or we call on the Presidency of the Council to do so, which would be preferable, in my view.
I do not wish to force a division on this motion. I am also conscious of the communications we have received from concerned individuals who are adopting children from Russia. They are to be commended. None of us wishes to put those adoptions in jeopardy. I have explained that the committee can only make recommendations which do not carry any legal clout unless the Government adopts the motion. In that case, the Government would examine all the implications. In general, the efforts of Deputy O'Sullivan and Deputy Byrne have been very honest and genuine. If my slight reservation is accommodated, I will be happy to support the motion.
If Senator Walsh is proposing two small amendments then I would be very happy to second them and to support the motion as amended in its mild form.
I point out in support of it that it would be difficult for us to disassociate ourselves from what the Tánaiste and leader of the Labour Party has said in public and also to refuse to acknowledge the motion in the European Parliament, which was passed by an overwhelming majority and to which our representatives contributed. It would be silly for us to be so nervous that we would disassociate ourselves from it. What could possibly be wrong with quoting the Tánaiste, Minister for Foreign Affairs and Trade and leader of the Labour Party and also the European Parliament? I do not believe we are being very aggressive in doing that. I would happily support that and perhaps we could get unanimity in terms of support for the motion, as amended.
If the Senator is going to propose an amendment to it, I need to have it in writing and I will read then read it out. In the meantime I will call Deputy Byrne to be followed by Deputy Durkan. Does Deputy Byrne want to comment on it?
The members will be aware that we tried to amalgamate two motions. The last bullet point covers Deputy Durkan's main point. The three of us have no problem in incorporating the note about Catherine Ashton; it is in the public arena and we are happy that it be added. I would have to think more deeply about changing our motion from noting the European Parliament's position to actually supporting the position. I would have reservations about that and I would need to think that one out more clearly.
I would like the Chairman to read out the motion, as proposed, and the motion, as amended, in order that we would have it clearly set out. I want to make two or three points of clarification about the situation as it has developed. When this motion first came before the committee in March, I expressed reservations about the wording of it on the basis of its impact in terms of a situation which needed to be addressed. As I mentioned on numerous occasions, there are two ways one can go about these things, and Deputy Byrne, in his introduction, acknowledged that. I congratulate the Deputy and Deputy Maureen O'Sullivan on the work they have put into it. We greatly appreciate that.
As we all know, the degree of emphasis on human rights and its application in various democracies throughout the world varies greatly. What constitutes a huge departure from human rights and rules in one country may be seen in another country, if not as normal practice, then certainly as something that has gone on. Any study of history, even a peripheral one, would let us know that. Notwithstanding all that, and while we are all grateful for the mention we received in the International Herald Tribune and in the Russian newspapers, although we did not set out to achieve such international popularity when we dealt with this, it is a serious issue that needs to be dealt with in the best possible way in the best diplomatic tradition. A code of language applies in diplomacy and among the diplomatic corps worldwide. That is normal practice and I would like to see that observed. That said, I am quite happy to accept what is being proposed in so far as I understand it, with perhaps one or two minor adjustments, to ensure the committee registers its protest, that it directs its protest in the proper fashion towards the relevant authorities, and that the authorities at home towards whom any such motion is directed recognise that it is done for the right reasons and with a view to calling on somebody to address a particular issue that was not in accordance with our perception of what is required in such situations.
I have received a number of telephone calls from various people. I do not accept that the issue of adoption should arise and it was not the intention that it would be part of this argument. If the original motion had not arisen, we would not be in this situation, and that is no disrespect to our colleague who proposed the motion. As I said in the first instance, I had serious reservations about the wording of the motion from the beginning, the issue took off from there and we are in the situation in which we now find ourselves. That said, I am still quite happy to deal with many of the outstanding issues.
We as a committee have a role which falls within the areas of foreign affairs, trade, human rights, international aid and similar areas. Many issues arise from time to time which are brought to our attention and which need to be addressed. In this context, we are doing so to the best of our ability. I do not want to see a situation develop whereby we exacerbate it. That is something we need to be careful about at all times, particularly in a foreign affairs context. We can go about everything in two ways; we can do it having regard to the kind of tradition that is expressed here in the most recent amendment or we can go about it in a different fashion. I prefer the latter.
I refer to the discussion we had before we went into private session. I have a number of amendments to the motion to deal with but I must dispose of the original motion and amendment first. Does Deputy Durkan wish to withdraw his amendment?
That the Joint Committee on Foreign Affairs and Trade notes:- that Mr. Sergei Magnitsky died in prison after being held for 358 days at the Butyrka detention centre in Moscow;and calls on the Government to:
- that the independent inquiry by the Russian Human Rights Council found that he had died as a result of beatings by prison guards;
- the dropping of charges of death by negligence against two doctors at the prison by refusing Mr. Magnitsky treatment for gall bladder disease and pancreatitis;
- the work and recommendations of our European Parliament colleagues, Ms. Kristiina Ojuland MEP, rapporteur for the Committee on Foreign Affairs on the Magnitsky case, and Ms. Barbara Lochbihler MEP, Chair of the Sub-committee on Human Rights;
- the European Parliament recommendation of 23 October 2012 to the Council;- convey to the Russian authorities this committee's concern and request for reassurances that they will act in compliance with international human rights legislation on this case; and
- use its Presidency of the Council of the European Union to highlight its concern and that of the international community at the issues surrounding Mr. Magnitsky's death, to reiterate its resolve to ensure a full and final report into the circumstances of the case and to ensure that those found responsible be held to account in accordance with international law.
I move amendment No. 3:
After paragraph 6 to insert the following new paragraph:- that the Tánaiste and Minister for Foreign Affairs and Trade, Deputy Eamon Gilmore, speaking at this committee on 17 April 2013, said as follows:"However, I can tell members that I did raise the case of Sergei Magnitsky at the Foreign Affairs Council and have argued that this is an issue that should remain on the agenda at the highest political level in the European Union’s relationship with Russia, including the summit with Russia, which takes place during every Presidency. The decision last month by the investigative committee of the Russian Federation to close the criminal investigation into his death is highly regrettable. I share the strongly worded concerns which were expressed by Catherine Ashton on this issue and I call on the Russian authorities to reopen the investigation.";
I thank the committee members who did much work in finding an acceptable wording for the resolution. I am delighted that it has been agreed to unanimously. I hope we will not have a repeat of these motions that require such in-depth analysis and research.
I express the committee’s appreciation and thanks to Deputies Maureen O’Sullivan, Eric Byrne and Bernard J. Durkan, as well as Senator Jim Walsh, for the enormous amount of work, time and effort they put into the motion.
I am happy there is unanimous agreement which strengthens the motion. I am also happy that we have showed solidarity with the European Parliament through noting its resolution on this case. We should convey this to those Members of the European Parliament who have been in contact with us on the matter, as well as members of Hermitage Capital Management who attended the committee at their own expense and made a presentation which informed us on many aspects of the case.
We have noted the European Parliament’s resolution on this case. We will be sending a copy of the committee’s resolution to the Tánaiste and Minister for Foreign Affairs and Trade, the Russian ambassador and Mr. William Browder. I thank all members for their valuable contributions. There was never any jeopardy to the future of intercountry adoptions with Russia because of this matter. Arrangements between the Department of Children and Youth Affairs and the Russian authorities on future adoptions are solid and there was never a danger that the adoption agreement would be suspended. When it is signed, it will be solid. I also thank all those with whom I have been in contact on this case. The motion has been unanimously agreed to and we will note future developments.