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Chinese President Xi Jinping and Australian Prime Minister Scott Morrison: If Canberra follows allies in adopting Magnitsky-style sanctions, it could create yet another flashpoint in the countries' tense ties.   © Nikkei montage/Source photo by Getty Images
Asia Insight

Australia pressed to dispense 'bitter pill' Xinjiang sanctions

Morrison faces calls to match allies' Magnitsky laws but risks China backlash

ERIC MEIJER, Contributing writer | Australia

SYDNEY -- Sergei Magnitsky, a 37-year-old Russian lawyer who blew the whistle on $230 million worth of alleged tax fraud, died in November 2009 after 358 days in squalid Moscow jails. His death has been attributed to torture at worst and neglect of his deteriorating health at best.

To this day, no one has been found legally responsible. But Magnitsky's name has become synonymous with international efforts to hold officials of authoritarian regimes accountable for human rights abuses and corruption. Since the U.S. implemented the first "Magnitsky Act" in December 2012 -- empowering Washington to ban alleged abusers from banking or setting foot on American soil -- governments including Canada, the U.K. and the European Union have followed suit.

Conspicuously absent from the list is Australia.

But it is not for lack of trying by some Australian politicians. And as global attention focuses on grim allegations of abuse by Australia's top trade partner and perpetual diplomatic sparring partner -- China -- think tank experts now say pressure is building on Prime Minister Scott Morrison's government to get on board. A similar push is under way in Japan, the only Group of Seven country without an explicit legal framework for human rights sanctions.

If Australia were to adopt Magnitsky-style legislation and sanctions, however, they could become a new flashpoint in an already fraught relationship with China.

Nataliya Magnitskaya, mother of dead anti-corruption lawyer Sergei Magnitsky, attends a memorial event for her son in 2013. His name has become synonymous with efforts to hold officials accountable for human rights abuses.   © Reuters

Passing an Australian Magnitsky law would complete a process that began two and a half years ago with the introduction of the "International Human Rights and Corruption (Magnitsky Sanctions) Bill 2018." This legislation was pushed by now-retired Labor Party lawmaker Michael Danby and lapsed in April 2019.

Last December, the chairman of the Joint Standing Committee on Foreign Affairs and Defence said Magnitsky-style targeted sanctions would "align Australia with a global movement seeking to limit opportunities for human rights abusers, corrupt officials and their beneficiaries."

"These recommendations would see Australia strengthen our commitment to protecting the human rights of people around the world," committee chairman and governing Liberal Party MP Kevin Andrews said.

Danby told Nikkei Asia that the lag in implementation was "essentially a problem of the Department of Foreign Affairs, where there is the political will but with COVID and with some economic problems, it's been put on the back burner."

"The shame is that so many other Western countries have adopted it, and Australia, which should be at the forefront of these things, is way behind," he said.

Outside Australia, sanctions have already been used to attempt to embarrass and isolate Beijing over alleged mistreatment of Uyghur Muslims in the Xinjiang region. In March, the U.S. and Five Eyes intelligence allies Britain and Canada imposed "carefully orchestrated" penalties on certain Chinese officials deemed responsible for the abuses, as did the EU.

"The evidence, including from the Chinese government's own documents, satellite imagery, and eyewitness testimony is overwhelming," the British and Canadian foreign ministers and U.S. secretary of state said in a joint statement. "China's extensive program of repression includes severe restrictions on religious freedoms, the use of forced labor, mass detention in internment camps, forced sterilizations, and the concerted destruction of Uyghur heritage."

The other two of the Five Eyes, Australia and New Zealand, did not announce measures of their own. But Australian Foreign Minister Marise Payne welcomed "the measures announced overnight by Canada, the European Union, the United Kingdom and the United States. We share these countries' deep concerns, which are held across the Australian and New Zealand communities."

There is, indeed, widespread support among the Australian public for sanctioning Chinese officials. A 2020 survey by the Lowy Institute found 82% of Australians supported imposing travel and financial restrictions on officials linked to abuses.

But charging toward sanctions over Xinjiang would not be risk-free for Morrison. While China has openly feuded with the U.S. and numerous other countries in recent years, its relationship with Australia is icier than most despite their mutual trade dependence.

Suspicions of Chinese espionage and political meddling prompted Morrison's predecessor, Malcolm Turnbull, to introduce foreign interference laws. Australia went on to ban China's Huawei Technologies from its 5G mobile network over security concerns. But relations took a real nose-dive last year after Morrison called for an impartial inquiry into the origins of COVID-19: China has since slapped punitive tariffs and restrictions on a host of Australian exports, from coal and lobsters to barley and wine.

China was Australia's largest export destination by far in 2019-2020, shipping over 150 billion Australian dollars ($116.9 billion) worth of goods. Even amid their spat, China's voracious appetite for iron ore has supported Australia's preliminary figures into this year.

Their diplomatic freeze has only deepened, however, with Canberra vetoing a state's Belt and Road deals and China indefinitely suspending an economic dialogue pact earlier this month. In late April, new Australian Defense Minister Peter Dutton said the possibility of war with China over Taiwan "should not be discounted."

But both Australia and New Zealand have approached Xinjiang gingerly, stopping short of joining their Five Eyes partners in accusing China of committing "genocide" against the Uyghurs.

Even Danby stresses caution if Australia ultimately adopts Magnitsky legislation.

"I think we should do it in a rational way," Danby said. "You don't just sort of fire these bullets off without having a purpose. There are going to be many occasions in the next few months when China does something egregious against Australia, or when there's unified international action, and that's the time to do it. ... You do it at appropriate occasions in an intelligent way."

The prospect of sanctions is clearly on the Xi Jinping government's radar.

Asked at a carefully staged media event how Beijing would react if Canberra sanctioned officials over Xinjiang, Cheng Jingye, China's ambassador to Australia, replied: "Any people, any country, should not have any illusion that China would swallow the bitter pill of interfering or meddling in China's internal affairs trying to put so-called pressure on China. We will not provoke but if we are provoked, we will respond in kind."

Stern warnings from Beijing against interference in its "internal affairs" are nothing new. But China may have been surprised by the scope of Australian support for sanctions, even within the Chinese Australian community. Lowy's research found 67% of Chinese Australians were in favor of travel and financial penalties -- not far off the national total.

Workers walk by the perimeter fence of what is officially known as a vocational skills center in Dabancheng, in China's Xinjiang Uighur Autonomous Region, in September 2018.   © Reuters

"Chinese Australians are broadly more positive about China than the broader population, and more interested in cooperation with China than the broader population," said Natasha Kassam, Lowy's director for its Public Opinion and Foreign Policy Program. "But on this point, sanctioning violators of human rights, Chinese Australians are agreed with the broader [Australian] population."

Making the case for a sanctions law is Geoffrey Robertson, a prominent London-based campaigner for human rights in general and Magnitsky legislation in particular. He has made submissions to the Australian parliamentary hearings on the legislation and has been in Australia promoting his book, "Bad people and how to get rid of them," which argues forcefully for such laws.

Nikkei Asia asked Lowy's Kassam what question she would put to Robertson if given the opportunity.

Kassam stressed she thinks "we should have a Magnitsky Act," but that a key question is not being asked: "Given the limited effect of sanctions throughout history to change regimes' behavior, isn't this kind of legislation designed to reduce our complicity in a genocide rather than do anything for the Uyghurs and other ethnic minorities?"

And what answer would she expect?

"He'll say 'we've got to try,' I guess," Kassam said. "But it's just the truth, it is reducing our complicity, it's not actually changing the calculus. It's hard to argue that this is about us and not about them, and I am yet to hear many good ideas on what can be done about the actual people there."

Dr. Teagan Westendorf expressed similar doubts. The analyst at the Northern Australia Strategic Policy Centre -- part of the Australian Strategic Policy Institute -- said such legislation is better suited to disrupting organized crime networks than reversing national population policies.

"I think that because what's happening in Xinjiang is part of a huge, nationwide policy about repressing minorities, I don't think it's the right tool to send a message to the CPC to say, 'The world is watching and doesn't agree with the way that you are waging all sorts of forms of ethnic genocide.'"

She explained that instead of being a "precision tool" to achieve a specific outcome, the sanctions would be a "blunt" instrument and too small.

"How do you use something like sanctions to deal with a policy that is so broad as encompassing everything from these kind of prison camps to the forced administration of intrauterine devices for every woman under 50?" Westendorf said. "To me, it seems like a drop in the ocean. I don't think it addresses the problem, and I don't think it says anything."

Australian Foreign Minister Marise Payne and U.S. Secretary of State Antony Blinken in May: Payne has welcomed Xinjiang-related sanctions announced by the U.S., U.K., Canada and EU.   © Reuters

Still, she conceded that targeted penalties for specific violations may have some impact. She cited the U.S. sanctions on 17 Saudis allegedly involved in the murder of dissident journalist Jamal Khashoggi -- excluding Crown Prince Mohammed bin Salman Al Saud despite intelligence agencies' conclusion that he was complicit.

"The way that it was used regarding Khashoggi, and similarly the way that it was initially used regarding Magnitsky, is about sanctioning high-level officials in order to send a message to a government, or to a particular petty government official or leader, like the prince."

If nothing else, Robertson argues sanctions can make life more difficult for people who might otherwise skate by with impunity.

"Look at the story of Carrie Lam, you know, the satrap of Hong Kong, busy denying democracy," he said. "She was listed by the U.S. Treasury and stopped from using her credit cards. She complained bitterly that she couldn't get credit cards drawn on Hong Kong banks and she was having to take her salary in cash."

Robertson joked that Lam was "almost taking it home in a wheelbarrow."

"The power of Magnitsky legislation, even though it's not an international law base, can be extraordinary," he said.

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