Human rights of people living with HIV in Tajikistan

Article by Larisa Alexandrova

May 17, 2021

Human rights of people living with HIV in Tajikistan

HIV is a disease that affects various spheres of people’s life, including healthcare, legal, labour and other aspects. Tajikistan, being a rule of law based secular and social state, adopted development programmes to address priority problems in the legal and social sphere. To address HIV-related issues, the Government of Tajikistan periodically adopts relevant National Programs every three years.

In 2020, the Government of Tajikistan approved the National Programme to Combat the Human Immunodeficiency Virus (hereinafter HIV) and Acquired Immunodeficiency Syndrome (hereinafter AIDS) Epidemic in the Republic of Tajikistan 2021 – 2025, along with the overall budget and Action Plan which includes the SDGs and other international human rights and HIV instruments.[1]

According to the data presented in the National Program, the total number of officially registered HIV cases in the country is 11,986, of which 7,698 people (64.1 per cent) are men and 4,288 people (35.8 per cent) are women. However, it is estimated that the number of people living with HIV could be 13,000.

In 2019, 1,320 new cases of HIV infection (adults and children) were registered in Tajikistan, which roughly corresponds to the number of cases in 2018 and 2017 (101 cases less than in 2018 and 115 cases more than in 2017). Of these new HIV cases registered in 2019, 772 were men (58.5 per cent) and 548 women (41.5 per cent). In recent years, there has been a general trend towards an increase in the proportion of women among all new HIV infections, from 30.9 per cent in 2011 to 41.5 per cent in 2019. Overall, the cases in the country amount to 14.5 per 100,000 population.

The Constitution of Tajikistan enshrines the fundamental human and civil rights and freedoms that are equally binding for all persons living in Tajikistan, with some exceptions for foreign citizens and stateless persons.[2] Persons living with HIV, based on the principle of non-discrimination, have all the rights and freedoms provided for all in Chapter Two of the Constitution – the right to life, judicial protection, education, physical and mental health and social protection, information, privacy and others.

In 2016, Tajikistan ratified the ‘Political Declaration on HIV and AIDS: speeding up the fight against HIV and ending the AIDS epidemic by 2030’. In 2017, the Health Code was adopted, which in Chapter 24 pays attention to the issues of HIV treatment and prevention, and prohibits discrimination against people living with HIV (PLHIV) in all fields of life. It defines the rights of PLHIV in receiving free qualified and specialised medical care, including medication, in public healthcare institutions, and recognises the principle of voluntary HIV treatment, as well as confidential and voluntary medical examinations for HIV. PLHIV, upon disclosing their medical diagnosis of HIV, have the right to compensation for moral and material damage. Children with HIV under the age of 16 receive a food allowance, and parents or legal representatives of children born to mothers infected with HIV have the right to receive breast milk substitutes from the moment they are born until the time they are finally diagnosed with HIV, with the aim of further reducing risk of HIV infection.

Despite these progressive provisions in Tajik legislation, practice has shown that PLHIV unfortunately continue to be discriminated against in all spheres of life. The reasons for such discrimination are different, ranging from: false ideas/knowledge of the disease; low qualifications of doctors, judges, and law enforcement officers; low legal awareness in the general population including PLHIV themselves; gender stereotypes; contradictions between healthcare laws and criminal and administrative legislation; discriminatory provisions of the Criminal Code and the Code of Administrative Offences; new discriminatory by-laws adopted, which are better implemented in practice than laws; and generally weak law enforcement.[3]

The new National Programme also underlines the existence of barriers for creating an enabling environment to support the development of programmes for counteracting the epidemic, including the need for legislation to mitigate the high level of stigma and discrimination against people living with HIV and other key populations. Unfortunately, there is currently no single and comprehensive anti-discrimination law in Tajikistan.

The Criminal Code of the Republic of Tajikistan has a separate corpus delicti for HIV infections. In accordance with Article 125 of the Criminal Code, criminal liability is provided for the infecting of someone with HIV/AIDS, as well as for knowingly leaving someone at risk of being infected with HIV. At the same time, the legislation does not take into account exceptions in the form of informed consent of the other sexual partner (regardless of whether there was the risk of HIV infection), or whether the virus carrier is taking precautions.[4] In addition, the legislation does not define the form of warning a partner should take about their status. Thus, all persons living with HIV who have sexual intercourse can be prosecuted, thereby violating their right to sexual health. When a criminal case is initiated under this Article, the status of both the suspect and the victim is simultaneously opened.

Thus, the wording of 125 of the Criminal Code leads to the situation whereby law enforcement agencies initiate criminal cases only on the basis of endangering HIV infection and HIV infection. Article 125 has already become a ‘routine Article’ for law enforcement agencies. In 2018, and for four months of 2019, law enforcement agencies identified 138 cases of deliberate infection of people by HIV-infected persons. 33 criminal cases were initiated against 26 HIV-infected persons therein in 2018, and 39 criminal cases were initiated against 32 HIV-infected persons in 2019.

In addition, Article 162 of the Health Code gives doctors the right to disclose the status of HIV patients at a simple request from the investigating authorities without providing a justification for it. Some criminal cases under Part 1 of Article 125 were initiated after the AIDS Center disclosed information on HIV to law enforcement agencies. During the investigation and trial, the accused’s right to confidentiality over their HIV status is not ensured because the investigators, officers, court clerks and judges are able to request medical information under provisions of the health code without conditions.

At a roundtable organised by the Public Organisation Human Rights Center (PO HRC) on December 1^st 2020, dedicated to the problem of HIV criminalisation, one of the representatives of the PLHIV community in Tajikistan stated: “One gets the impression that law enforcement agencies are fighting not the infection, but rather the PLHIV.”

Amendments to the Family Code, adopted as a Government Decree on August 23^rd 2016 (No.374), violate the right of PLHIV to voluntariness and confidentiality of HIV testing. In particular, the amended Article 14 now requires every future spouse to submit to a compulsory medical examination as a mandatory condition for marriage, and this was. The rules indicate that the examination includes, among other things, an enzyme-linked immunosorbent test (HIV/AIDS) and the couples must be familiarised with the results of each other’s examination. Without a medical document proving such examinations, the registry office does not have the right to register a marriage.[5] This requirement violates the right to privacy of everyone who wishes to marry. For PLHIV and other persons who have the disease Hepatitis B, C, drug addiction, in case of refusal to voluntarily disclose information about their disease to a partner, a medical certificate is not issued, so the marriage shall not be registered. A medical certificate is also not issued to persons who have drug addiction, Hepatitis B and C, mental illness, until they are cured and pose a threat to the life and health of another person who is getting married. Treatment is carried out at the expense of patients and after treatment they must undergo a repeated examination.

In turn, Articles 119 and 120 of the Code of Administrative Responsibility of the Republic of Tajikistan provide for an administrative penalty in the form of a fine for refusing to have mandatory medical examinations and HIV treatment, as well as for concealing the source of HIV infection, which is a significant barrier for PLHIV to receive ARV therapy.

There is a free legal hotline for these groups at the PO HRC. Over the period from November 2018 to December 2019, 167 calls were received by the hotline, of which 67 were from men and 100 from women. From January to December 2020, 415 calls were received, 163 from men, 214 from women, and 38 from government agencies. The calls were associated with various violations of rights against PLHIV.

In 2019 to 2020, legal assistance was provided for cases such as:

11 initiated criminal cases under Part One of Article 125 (deliberate exposure to the risk of HIV infection);
Two criminal cases under Part Two of Article 125; and
Three criminal cases under Part Three of Article 125.

Most of the criminal cases were brought against women. Many of the calls to the hotline are by the employees of public organisations who work directly with communities. They complain that police officers detain them, demanding them to disclose the status of all their beneficiaries with whom they work on adherence to HIV treatment, and threaten to initiate a criminal case against them under Part One of Article 125 of the Criminal Code of the Republic of Tajikistan. They also demand to write receipts stating that they undertake not to infect HIV, which means for them not to have an intimate relationship.

In 2019, the PO HRC conducted an analysis of the criminal procedure legislation of Tajikistan. Within the framework of this analysis, law enforcement practice was also taken into account in connection with which 13 criminal cases under Article 125 were covered. The analysis revealed the following problems:

When considering cases under Part One of Article 125, there is a lack of direct evidence. The accusation is based not on facts, but on the words of a person, which are often impossible to verify. As a rule, the court takes the side of the one who was put at risk.
Another difficulty comes from prejudice and poor awareness. For example, in Tajikistan, representatives of the local judicial system do not yet have a complete understanding of the characteristics of the disease, and regularly do not distinguish HIV from AIDS. There is no Resolution of the Plenum of the Supreme Court on such categories of cases that would explain to the courts what is meant by putting under the risk of HIV. Guidelines for these categories of cases to prosecutors have not been adopted.
At the first medical examination for HIV after determining a positive diagnosis in accordance with the guidelines for diagnosis, treatment and dispensary observation for HIV infection (for adults and adolescents) requires infected persons to sign a paper stating that they have been warned of criminal liability for infecting another person with HIV. The fact that a person is aware of their HIV infection does not necessarily imply that they are also aware of the ways of passing of the virus. As PLHIV themselves note, in practice they are faced with low quality of information before and after the test consultation, or lack of it. As a rule, the signing of documents often occurs after people learn about their incurable disease for the first time when they are in state of confusion or shock. The issue of adapting a HIV-positive person to their own diagnosis is very acute. In other countries, there is practice on how to show the partner their HIV-positive status. Among the proposed forms are a statement, a verbal announcement in the presence of witnesses or a doctor, in a self-help group. At the same time, these recommendations are not stipulated anywhere in the legislation of Tajikistan, and their implementation is difficult due to psychological barriers. Psychological services are not provided free of charge at HIV/AIDS centers.
The right to receive documents (resolution on the initiation of a criminal case, indictment, sentence and others) of criminal proceedings in a language accessible to the accused and convicted, in particular in Russian and Uzbek, is violated. The right to testify in an accessible language for Russian-speaking and Uzbek-speaking suspects and detainees is also being violated. Translators are not present during the inquiry, and the suspects are forced to sign explanations recorded from their words in Tajik on their behalf. The indictment is not served in a language accessible to the accused in accordance with Part One of Article 250 of the Criminal Procedure Code of the Republic of Tajikistan.
State lawyers who are involved by investigators in fulfilling their duties to protect PLHIV are reluctant, or because of ignorance of HIV, and they overlook many important points.
Most cases under Part One of Article 125 are initiated according to the data of the HIV/AIDS centers without signs of a crime, but only on the basis of information about the HIV disease. Patients with HIV are called to the interrogator, and they are openly asked: “Who are you sleeping with?” This is also facilitated by Article 162 of the Health Code, which allows doctors to disclose a patient’s HIV diagnosis at the request of the investigating authorities without any conditions.
Attention is drawn to the fact that only two criminal cases out of 13 were initiated on the basis of the victims’ statements. Eight out of 13 criminal cases are private prosecution cases under Part One of Article 125, which are initiated in the presence of claims from victims. The study of all 13 sentences showed that under Part One of Article 125, nine victims and under Part Two of of Article 3 of the victims had no claims against the convicted. In 2018, there were no criminal cases terminated by the courts on the basis of Articles 72-75 of the Criminal Code (exemption from criminal liability in connection with reconciliation with the victim, sincere repentance, etc.), which is provided by the Criminal Procedure Code for Part One of Article 125. Despite the fact that in one of the cases the so-called victim in court declared: “I have no complaints against the defendant, I love her, please set her free.” As a result, the court pronounces a sentence of one year and two months in prison. The cassation and supervisory instance courts did not find any irregularities or omissions in the trial.
According to Part Three of Article 24 of the Criminal Procedure Code, cases under Part One of Article 125 are initiated upon the claim of a person who has suffered from a crime. In the event of reconciliation of the person who suffered from the crime with the accused, and compensation for the harm caused to the victim, the proceedings are terminated. According to Article 147 of the Criminal Procedure Code if the case is of particular public importance or if the victim is in a helpless state, dependent on the accused or for other reasons is unable to defend their rights and legitimate interests, the prosecutor has the right to initiate a criminal case even in the absence of a victim’s statement. But unfortunately, the legislation does not provide an explanation of the wording ‘special public importance’ and the prosecutors interpret it based on their personal understanding. There were cases when criminal cases were initiated under Part One of Article 125 by the police without a victim’s statement, and the courts did not pay attention to this.
Complaints against the verdict of the first instance in accordance with the norms of the Criminal Procedure Code are submitted through the court of first instance, and the judge who passed the verdict, who is appealed, prepares the case and the complaint and sends it to the higher cassation court. The supervisory appeal is considered by the same court as the cassation appeal, only in a different composition of judges, but in essence it is the same court. Accordingly, there is a risk that the court will not be objective in this matter and will not take a positive decision on the complaint against itself. In this connection, lawyers repeatedly apply in a supervisory manner to the Supreme Court of the Republic of Tajikistan, which delays the consideration of complaints.
There is a lack of coordination between the doctors of HIV/AIDS centers and temporary detention centers, which leads to the fact that PLHIV do not have access to Antiretroviral Therapy (ARVT) drugs, which entails a violation of their right to health.
In cases involving people who inject drugs, and at the same time have been participants in the opioid substitution therapy programme for many years, the courts additionally prescribe compulsory drug addiction treatment under Article 101 of the Criminal Procedure Code, without clarifying how it can harm the convict and what is opioid substitution therapy. According to Article 194 of the Health Code, substitution therapy is considered to be one of the types of assistance, and Article 101 of the Code of Criminal Procedure also contradicts the Article 203 Health Code. It states that compulsory treatment is applied by a court verdict to persons who have committed a crime, including persons who have committed administrative offenses and who at the same time need treatment for a confirmed neurological illness, when they refuse voluntary treatment. But in our case, our beneficiaries do not refuse substitution therapy, which is an alternative treatment, as it is stated in Articles 194 and 197 of the Health Code.
Attention is drawn to the fact that in Tajikistan there are more children infected with HIV via an unknown route than children infected with HIV via the vertical route. Moreover, the Ministry of Health is not taking the necessary measures to find out how children are infected. When a child is diagnosed, when both parents are healthy, doctors at HIV/AIDS centers do not send information to prosecutors for proper investigation. Moreover, in the proceedings of the PO HRC there is a case where a lawyer defends the interests of a girl, currently ten years old, who was infected when she was 20 months old. The case has already been initiated for several times and terminated due to lack of evidence. The lawyer petitioned for a re-examination, request for information about the donor, the plasma that was transfused to the girl, and other investigative actions that enable a high-quality investigation. But this petition was never approved, and the case was again terminated. Unfortunately, the judicial practice does not have any positive precedents yet. But if the fact of HIV infection in state medical institutions is proven, the state will be obliged to pay benefits to PLHIV for a lifetime, as well as compensate for material and moral damage, and provide them with housing.

In addition to problems with access to justice in the criminalisation of HIV, PLHIV also face social problems, which can be expressed in the absence of implementation of the principle of rule of law.

Thus, the Health Code provides for the right for parents of children born to mothers with HIV to receive breast milk substitutes from the moment of their birth until the time they are finally diagnosed with HIV. Statistics show that cases of HIV detection among children born to HIV-infected mothers in 2017 were 60 children, 53 children in 2018, and 45 children in 2019.[6] There is also a problem with the realisation of this right, when not all parents of children born to mothers with HIV have access to breast milk substitutes. This is due to the fact that the mechanism for implementing this norm has not yet been developed, funding is not provided in the state budget, and funds for these needs are not always allocated from the local budget.

Government Resolution No. 232 dated May 10^th 2010 provides for the issuance of benefits for children with HIV up to 16 years of age. There are bureaucratic mechanisms for granting benefits, from the moment of filing an application until its permission, which can take more than a year, the parents of children are forced to provide information to local authorities that the children are alive and while the information is being checked the issuance of benefits is suspended.

Resolution No. 475, dated September 25^th 2018, defines the List of Diseases, which subsequently does not give people living with HIV the right to study in educational medical institutions, nor the right to adopt a child, be their guardian or custodian.

The Health Code provides for free treatment and examination of all types of medical and drug assistance in public health institutions. However, in practice, except for ARV therapy, all other services are paid for by patients, and in practice this norm practically does not work.

A HIV test is also required for employment, even when opening a retail outlet for small entrepreneurs, and there is a practice of refusing to hire a HIV-positive person. PLHIV do not appeal against this illegal practice for fear of disclosing their status, since PLHIV mostly live in small areas, villages where everyone knows each other and it is impossible to keep information about the disease a secret.

In labour relations, when hiring and subsequently when working, according to the Labour Code and other by-laws of the Republic of Tajikistan, an HIV test is required only for medical workers in the surgical field (including surgeons, dentists, obstetrician-gynecologists, etc.); those working in blood transfusion services; specialists in infectious diseases; and departments in which there is an increased risk of infections.

In practice, this requirement is not observed and the HIV test in particular, and the results of medical examinations in general, is demanded in the hiring process for any type of work and position, even when opening a retail outlet for small entrepreneurs. There are cases of refusal to hire a HIV-positive person. PLHIV do no appeal against this illegal practice for fear of disclosing their status, since they mainly live in small settlements, where everyone knows each other and it is difficult to keep information about the disease a secret.

In 2019, the Government tested children for HIV in schools in pilot districts. The testing took place while parents were not present, mandatory consulting was not provided before and after the test, and the result was disclosed to the school administration. There were even statements regarding the exclusion of a child from school due to their positive HIV status.

Representatives of civil society regularly communicate with various state bodies to improve the situation with the rights of PLHIV in Tajikistan. Civil society has proposed amendments to the new Criminal Code, which is currently being developed by a working group approved by the decree of the President of the Republic of Tajikistan. The proposals are aimed at decriminalising the first part of Article 125 of the Criminal Code. The good news is that the working group on the development of the new Criminal Code has included a footnote to Article 125, which provides for the exemption from criminal liability of HIV-positive people in the case of the informed consent of the sexual partner.

In addition, within the framework of advocacy activities, work is underway to develop a draft Resolution of the Plenum of the Supreme Court of the Republic of Tajikistan on the consideration of cases related to the criminal prosecution of PLHIV, including an explanation of Article 125. The Supreme Court has already analysed about 100 court cases, which were considered over the period 2018-2020.

Also, as it was noted above, the National Programme was adopted and it has already been approved by the Resolution of the Government No. 50 (dated November 27^th 2020). According to the recommendations of the civil society, all the problems mentioned above were also included in this programme. We hope that all the initiatives undertaken by the civil society will result to an improvement in the situation with the observance of the rights of PLHIV in Tajikistan.

In this connection, the following recommendations for solving problems are offered:

On the criminalisation of HIV:

To decriminalise Article 125, and to criminalise and prosecute only for intentional HIV infection within the framework of the general article causing harm to health of moderate severity;
To people living with HIV in cases related to HIV infection, to provide obligatory participation of a lawyer in criminal cases at the expense of the state;
It is advisable to clarify the issue of protecting the confidentiality of the diagnosis and provide that in order to obtain data on the state of health and HIV status, a petition from the prosecutor and a court order is required. For this, appropriate amendments should be made to the Law on Operational-Investigative Activities and Articles 49 and 162 of the Health Code, expressly indicating that data constituting a medical secret can be disclosed to the bodies of inquiry or investigation only with the approval of the court;
Exclude compulsory treatment for PWID as an additional measure of punishment, amend the Criminal Code with the possibility of prescribing alternative treatment for PWID, instead of compulsory treatment. Include in the Criminal Code or Criminal Procedure Code the concept of alternative treatment and the procedure for its appointment;
Given that there are many myths and stigmatising attitudes regarding HIV, people living with HIV and those affected by the epidemic, it is imperative to ensure regular training of police officers, prosecutors and judges on HIV, including the latest scientific and medical data on HIV infection as a chronic disease, risk of transmission, effects of antiretroviral therapy and precautions, etc., and the importance of maintaining confidentiality of diagnosis and privacy;
To develop and adopt the Resolution of the Plenum of the Supreme Court on cases related to Article 125, taking into account modern scientific advances in HIV treatment before the abolition of this article; and
For investigative bodies and prosecutors to develop instructions for conducting criminal cases under Article 125, as well as oversight in HIV prevention.

For voluntary HIV testing:

Given the concentrated nature of the HIV epidemic in Tajikistan, replace the mandatory medical examination for HIV of persons entering into marriage with voluntary and confidential HIV testing, and with the provision of pre- and post-test consulting;
To reform all legislation, taking into account the observance and non-discrimination of the rights of PLHIV; and
To strengthen the responsibility of doctors, medical personnel, and government officials, who have access to information on the presence of HIV, regarding the disclosing of confidential information without any connection with aggravating consequences and for refusing medical care and services.

On issues of violation of other rights of PLHIV:

Adopt the Government Resolution on the issue of infant formula for children born to HIV-infected mothers, and provide funding for these purposes, both in the local budgets of Tajikistan and at the state level in the case of subsidised financing of subsidised districts;
Simplify the procedure for granting benefits to children with HIV and amend the Health Code, increasing the age of children eligible for benefits to 18 years old;
To terminate the widespread practice of HIV testing upon admission to school, vocational educational institutions and upon employment in all types of work; and
The Ministry of Labour will strengthen its work with employers on the observance of safety measures at the workplace, including clarifications on HIV prevention and prohibition of discrimination against PLHIV.

Larisa Alexandrova is an expert on gender, human rights and HIV. Since 2011, it has been advocating for women’s rights in access to justice for victims of domestic violence and other women’s rights. Author of guidelines for conducting a gender analysis of legislative acts for State bodies, as well as an assessment of the legal and regulatory environment in the area of HIV/AIDS in the Republic of Tajikistan, and a gender and anti-discrimination analysis of the draft law “Protection against Discrimination” and other laws concerning the rights of women living with HIV.

Image by USAID in Central Asia under (CC).

[1] The National Program to Combat the Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome Epidemic in the Republic of Tajikistan 2021 – 2025. This programme was approved by the decree of the Government of the Republic of Tajikistan No. 50 dated November 27, 2020.

[2] Article 16 of the Constitution

[3] HRC, Assessment of the legal and regulatory environment in the field of HIV/AIDS in the Republic of Tajikistan, February 2020, https://hrc.tj/archives/325; Е. Maron, L. Aleksandrova. “Assessment of the Legal and Regulatory Environment in the Field of HIV/AIDS in the Republic of Tajikistan. Dushanbe. 2019г.

[4] Such as wearing a condom.

[5] REPORT FOR THE UNIVERSAL PERIODIC REVIEW FROM THE NGO RULE OF LAW AND ACCESS TO JUSTICE NETWORK. 39^th session of the UPR Working Group, October-November 2021

[6] The national programme to combat the HIV/AIDS epidemic for the period 2021-2025 was approved by Government Decision 50 of 27 November 2020.

Topics

Civil Society

Good Governance and Institutional Reform

Human Rights

Regions

Former Soviet Union

Central Asia

Tajikistan

On the way to emancipation, not all roads lead through NATO

Article by Dr Kevork Oskanian

May 10, 2021

On the way to emancipation, not all roads lead through NATO

‘What does Russia want?’: this perennial question of the post-Cold War era has remained left, right, and centre of policymaking and analysis towards Moscow since the end of the Cold War. At first, in the 1990s, the question depended largely on the drama of Russia’s collapse, and a tug-of-war between the various competing identities – liberal, pragmatic, red/brown – that marked both state and society during that unsettled decade.[1] The restoration of the power vertical by Vladimir Putin didn’t end the ambiguity and confusion on Russian intentions. Over time, however, one thing became abundantly clear: the Putin regime was willing to pay considerable costs to maintain a regional ‘sphere of special interest’, composed of states whose sovereign equality it had much difficulty in accepting.

Western observers like to explain Putin’s apparent inability to ‘let go’ of his neighbours in various ways: it is, some say, a ruse designed to mobilise public opinion around the flag of an autocratic regime suspicious of Western-style democracy;[2] others present it as a product of an entrenched, specifically Russian neo-imperial political culture that demands obedience from hapless neighbours stuck in its ‘near abroad’;[3] and those of a more realist persuasion tend to point at NATO’s attempts to expand Eastwards – and into that ‘near abroad’ – as the primary driver of a Russian subversion born from insecurity.[4] In the process, more or less clear dividing lines are created: between those who see NATO’s open-door policy as representing the road to emancipation from Putin’s authoritarian reflexes or Russian neo-imperial meddling, and those who see it as the primary cause of Russian pushback. It is, more often than not, either one, or the other; hawks or doves, a hard or soft – the dividing lines appear clear.

The binaries whereby Russian motives are reduced to either domestic or external factors, and the solution is presented as ‘NATO expansion or bust’ simplify both the causes of, and the solutions to the predicament confronting not just Ukraine, but all the states that emerged from the wreckage of the Soviet Union 30 years ago. The result has often consisted of reducing complexity to a false choice: between a continued attachment to a mechanism that was once seen as a solution to the ‘Russian problem’ by the luckier members of the former Soviet bloc – NATO membership; or the abandonment of the hapless countries on the other line of the current NATO boundary to the Russian sphere of interest.

Indeed, the latter goes against the fundamental principles of the Liberal International Order (LIO), and the West’s default position has remained offering countries like Ukraine and Georgia a – highly theoretical – chance for membership, in the absence of a clear consensus on its feasibility, let alone a concrete timeline for its realisation. This has allowed Western policies towards the former Soviet space to become stale, predictable, formulaic, leaving Putin the continued ability to surprise, thwart, and sabotage at a price he is willing to pay. In both Georgia and Ukraine, the Kremlin knows where to poke and to provoke so as to foster division and complicate this supposed roadmap towards emancipation; beyond aspiring NATO candidates – in Syria, Armenia, Azerbaijan – his ability to pull rabbits out of his hat is also proven, time and again.

But is NATO the only answer? As I shall argue here, NATO membership is neither a practically sufficient, nor, in fact, a morally necessary solution to the post-imperial predicaments of Russia’s immediate neighbours. There are, in fact, other ways of ensuring the security and emancipation of these states and societies, albeit ones that require strategic patience and adaptability away from long-held, ossified assumptions on Russian motives, and an attachment to solutions based more on policy inertia than a clear-eyed view of ever-changing geopolitical realities. If NATO has been relatively successful in Central and Eastern Europe, the conditions which made this success possible do not hold in the former Soviet Union, and the ‘NATO imperative’ now presents rigidities and complications that Eastward policies could very well do without – not least, in the longer-term interest of Russia’s neighbours themselves.

This is not an argument in favour of appeasement or abandonment, far from it. Instead, it is one in favour of changing the cost/benefit environment within the former Soviet space from a logic based on unidimensional views of Russian motivations, and a short-term, outdated view of the wider strategic environment, to a finer-grained, longer-term, contextualised alternative. It is based on a cautious rejection of the idea that Russia could be coaxed to return to a golden age of the ‘Liberal International Order’ – which mainly exists in the minds of the selectively forgetful in any case – in a geopolitical great-power contest which reinforces, rather than weakens, Moscow’s association of territoriality with great-power status; and the embracing of a new world, where the West and the former Soviet states will have to dig in, adequately shield themselves, and patiently wait for more secular changes in Russia to manifest themselves, opening up possibilities for future arrangements not necessarily based on a return to an idealised, liberal past.

What does Russia Want – and Why Does it Want it?

To start with, it is simplistic to assume that Russian foreign policy is the product of the innate anti-democratic ideological propensities of one man, or group of (mostly) men. Quite apart from the fact that attributing a coherent ideology to Putin would be quite mistaken – beyond a general imperative for power – the reduction of Russia’s recent behaviour to an individual or distinct group would also only tell a very partial story. Individuals do not exist in social and institutional voids, they shape and are shaped by these environments. To ask ‘how do we solve a problem like Putin/the ‘Siloviki’ thus misses the wider structural contexts within which leaders like Putin emerge, and their imperious acts earn them popularity. It also creates the unrealistic expectation that once the ‘criminal’ Putin regime is removed, the elements for a ‘new Russia’ may somehow miraculously fall into place – based on the mistaken assumption that, in the Russian case, broader institutions and political culture would temper, rather than enhance, any moves towards more assertive, illiberal foreign policies.[5]

Waltz’ warning against overstating the case for the ‘first image’ of international relations – individuals – stands;[6] so does his admonition on placing too much faith in the second image – the domestic political system – by assuming the arc of Russian history would gravitate towards democracy were it not for Putin. Chances are that, rather than some kind of liberal enlightenment, a fall of the regime would be followed by a tug-of-war between hawks and doves, hardliners and moderates, with history – and Russia’s present realities – considerably in favour of the former. Russia’s liberals and liberalism itself have been comprehensively sidelined over the past few decades, both within government, and in society at large.[7] And while conflict over Russia’s relationship with the West has been a recurring phenomenon throughout its history, it has never been able to change its worldview in a way that denied itself an exceptional role within a hierarchically conceived neighbourhood: even the 1990s liberals envisaged a ‘normal’ Russia as having a special role in ‘its near abroad’.[8]

That is not so say that Russian society has some kind of unchangeable, self-contained imperial reflex. For, just as Putin is also a product of Russian domestic society, the Russian elite’s world-view is also a product of an International Society marked by the dominance of a Western modernity towards which it has strived, problematically, since the days of Peter the Great.[9] Against those who see Russian actions as inevitable by virtue of a circular non-argument – ‘Russia is Russia’ – the country’s state and society are inextricably entangled with the West. Russia’s centuries-old struggle with Western modernity as a model – often the goal, and always, frustratingly, out of reach – underlies many of its contradictions, including, paradoxically enough, its current challenge to the LIO.

This goes further and deeper than the old realist argument that sees NATO eastward expansion as the only or even primary cause of Russian assertiveness. Focusing on territory, and NATO expansion, alone as an explanation for the current predicament in Western-Russian relations only tells a very partial story. Beyond the realist explanations based on hard power, security dilemmas and spheres of influence, Russia and the West would likely have ended up at loggerheads even in the absence of territorial intrusion. Not because of some self-contained, innate Russian propensity towards confrontation, but because it could not attain the markers of status that make the contemporary West ‘Western’, and undergird its global hegemony. In simple terms: elite status in the Liberal World Order required a number of attributes – a liberal-democratic system, a free market, and, crucially, subordination to US ‘leadership’ – which Russian elites were not prepared, able, or willing to adopt, with or without NATO expansion.

Putin’s Failed, Feigned Quest for Status

This quest for status manifested itself in two distinct ways: first, there was an element of imitation, an approach that was predominant during, roughly, the first half of the Putin regime’s period in power. At the time, Moscow at the very least feigned conformity to the LIO’s basic precepts – through the adoption of the language on the Global War on Terror, a superficial, ‘sovereign’ application of democracy and constitutional rule, and interference in its neighbours’ affairs carefully clad in liberal or technocratic language.[10] Even during the invasion of Georgia, in 2008, it still appropriated, distorted, and deployed the – very liberal – language of R2P. But sometime in the later 2000s – from about the period of Putin’s now-infamous Munich speech – Russia started giving up on being accepted in ‘the West’ as an equal, not merely because of NATO expansion, but also because it could no longer pretend to acquire the attributes associated with membership of the Western international ‘elite’. Liberal rationalisations had worn thin, any pretence of modernisation – carried most explicitly, and mainly rhetorically – by Dmitri Medvedev had failed.

I’ll leave the specific question whether this ‘feigning’ was an instance of ‘faking it till you make it’, or simply a ruse meant to lull the West into complacency in the absence of power, and any genuine willingness to adopt liberal norms open to speculation; the fact is that, since about the beginning of Putin’s second stint as president, Russia has placed itself radically outside and against the Liberal West. The reasons for this are complex, but, again, likely go beyond any simple domestic, or geopolitical explanation. From the ‘grand sociological’ point of view suggested above, two developments could explain this transition. On the one hand, a dashed entitlement to membership of the global, liberal elite on (feigned) liberal terms, and, secondly, the crisis of liberalism itself, which made a rejection of its normative framework more feasible. Simply put, Russia would be recognised, either as a ‘respectable’ member of ‘really existing’, liberal international society, or as a challenger to it, and an accelerator of its decline. In the process, it also went from claiming a right to ordering a separate, subordinate sphere of interest in a (feigned) liberal manner, to just ordering it at will, outside its – now weakened – normative framework.

The move away from ‘feigned liberalism’ or ‘liberal performance’ thus resulted in a much more crudely formulated, civilisational legitimising discourse in Moscow.[11] Having given up on – and thoroughly discredited itself in – formulating its hierarchical interventions in the former Soviet space in liberal terms, the Putin regime now makes much more recognisably civilisational claims, separating a regional sphere of influence for itself without the desired blessing of the LIO – whereas in earlier years it would still have tended to rhetorically couch its justifications according to that order’s terms of reference. The Crimean annexation was thus defended in Russian nationalist terms; but, more broadly, the interventions in Ukraine – and, more recently, Belarus – have been incongruously justified in terms of an attempt to safeguard an ‘authentic’ – i.e. pro-Russian/Soviet – from the adulteration of Western-inspired hyper-liberalism or ‘fascism’.

But, not unlike ‘feigned liberalism’, this anti-cosmopolitan claim encompasses an element of imitation: Putin’s Russia imitates the West in determining the ‘exception’ within this claimed sphere of interest it has appropriated for itself. Just as the West – and the exceptionalist United States – functions as supreme adjudicator at a global level – determining exceptions for itself in all manner of legal regimes, and in more specific instances from Kosovo to Iraq – Russia does the same, ever so clumsily, in its own claimed sphere. Determining the exception and freely interpreting international law thus remain a marker of great power identity as performed by the United States itself; the difference is that Moscow has largely ceased to even pretend to be determining exceptions within its ‘near abroad’ within liberal terms of reference.

In that sense, Russia’s civilisational discourse retains a crucial link to Western behaviour: as a marker of great power status, the West’s ability to determine exceptions to the liberal order has transmogrified into Putin’s claimed ability to determine exceptions within his own custom-made regional ‘order’, full stop. The Russians themselves, and the states and societies within that claimed sphere of interest, are the foremost victims of this exceptionalism: they are now swept up in an increasingly nihilistic power- and status-seeking project, where history and civilisationism are employed at the expense of the self-determination of both Russian and non-Russian societies.

An Emancipatory Pivot

But is the prospect of NATO membership for Russia’s beleaguered neighbours the only answer to this predicament in light of the above? It is, in fact, neither practically effective, nor morally necessary. From a practical perspective, it puts the NATO candidate states themselves in an eternal waiting room, exposed to Russian meddling and interference without the benefits of article V; it also reinforces rather than weakens Russia’s identification of status with a sphere of influence, based on the outdated logic of a bygone age. Neither do the moral arguments withstand closer scrutiny. The claim that NATO expansion would entail a return to a past ‘rules-based order’ thus idealises an arrangement that was always marked by exceptions – albeit ones determined by the West; and the insistence on alliance membership as the only pathway to post-imperial emancipation turns it into an end-in-itself rather than just one of a number of alternative means towards a broader, and more attainable emancipatory goal. Both practically and morally, NATO expansion thus comes to represent an unnecessary encumbrance, rather than a road towards a more manageable, freer future.

It is often pointed out by the proponents of NATO membership for former Soviet states that countries like Ukraine and Georgia have already been lost to Russia: and, indeed, while Ukrainian society turned in favour of alliance membership after the 2014 Russian interventions, a consistent majority in Georgia has supported an Atlanticist course since well before the 2008 invasion.[12] Both within their elites, and in their societies, these two states now see membership of the Atlantic community as the ultimate way out from domination by an overbearing former imperial power. Both these NATO candidates have paid, and are paying, a price quite literally measured in blood and soil for their desire for self-determination.

But if these people and their lands have been lost to Russia, neither have they been gained by NATO – membership of which is as far off as it ever was. The magic of article V has not rubbed off on candidate-members, which now have to contend with the worst of both worlds: seeing Russia enraged at what it defines as a potential civilisational retrenchment, without the benefit – as in, for instance, the Baltics – of full-scale deterrence. To make things worse, there is no prospect of emerging from this purgatory any time soon, not least because of the reasonable expectation, shared by many in the West, that the current Russian regime would go to extreme lengths to keep what it has never ceased viewing as its own sphere of interest outside the Alliance. NATO membership also remains out of reach because its clear requirements provide a power- and status-seeking Russia with a spoiling advantage: Moscow knows exactly which buttons to press in order to prevent the not-so-inevitable, without necessarily having to achieve a substantive, positive alternative in an ongoing rear-guard struggle. It knows the costs some in the Western alliance are quite unwilling to pay, the commitments they are unwilling to make.

Additionally, tugs-of-war over spheres – which is exactly how the Kremlin sees the fight over NATO expansion – are a game the Kremlin is all too adept at playing. Indeed, it nurtures its obdurate search for status – after all, such contests are exactly what Great Powers are supposed to engage in – and allows it to displace any genuine calls for democratisation and self-determination into this territorialised great-power game. It is so much easier to deny the agency of Ukrainians, Georgians, Belarusians, and, indeed, the Russians themselves when it can be dismissed and subsumed into machinations of an expansionist alternative;[13] a conjoining of geopolitics and democratisation then makes any hint at revolutionary liberalisation – as most recently attempted in Belarus – doubly unacceptable to the Kremlin. In the process, Moscow is never confronted with the harsh truth that it has lost these lands and peoples not because of NATO intrigues and geopolitical circumstance, but because of a genuine will to independence of the non-Russian populations of its former empire.

Apart from these practical considerations, the equations of NATO membership with the ‘restoration of a rules-based order’ or an emancipatory imperative aren’t as morally clear-cut as would appear. Firstly, the insistence on NATO expansion – and, more broadly, of Russian compliance to the LIO – aims for the restoration of an idealised past that arguably never was, or, at least, a past whose conditions have by now withered away.[14] One might forgive Western states for subscribing to the idea of a return to a principled ‘rules-based order’ that never existed in the first place; after all, it is easy to rationalise exceptions to that order in the face of claims to ‘principle’ when one had the privilege of determining those exceptions, be it in Kosovo, or Iraq, or Libya. Moreover, the success of previous bouts of NATO eastward expansion was always based on the illusions created by a geopolitical vacuum rather than its status as an immutable element of sound, moral statecraft.[15] In achieving its stated goals – stabilising Europe’s Centre and East, and ensuring its security – it was, undoubtedly, a great success, which even Moscow had, however begrudgingly, accepted as a fait accompli; this illusion of expediency can no longer be maintained in the former Soviet space, where Moscow is both able and willing to object, and push back. With the road to disaster often paved with good intentions, its resulting impracticality, and its condemnation of candidate states to a form of never-ending purgatory makes the project morally questionable in itself.

Secondly – and more importantly – an unquestioned and unquestionable fixation on NATO expansion appears to have made some lose track of the other ways in which the security and self-determination of post-Soviet societies can be effectively ensured. Provided, that is, that the pivot towards alternative policies is carried out in concert with the states concerned, and with a clearly stated, and enacted commitment to supporting their resilience and independence even without the prospect of membership. This more honest, realistic approach would not counter the overall aim of self-determination. After all, membership of the alliance has always remained subordinate to other aims much more immediately relevant to the populations concerned, including democratisation, the restoration of territorial integrity, the consolidation of statehood, (…). This opens to possibility of those states themselves taking the courageous decision to pivot away from aspired membership in concert with their Western allies, and move towards more realistic ways of ensuring their security, without being dependent on the unanimous good graces of others. It is, indeed, very difficult to envisage them doing this at present, but, over the longer term, independence and self-determination may come to be understood as dependent on a much broader repertoire of prudent, flexible, responsive statecraft than merely membership of an exclusive club of states, after a seemingly unending apprenticeship in a dangerous waiting room. The alternative – of a divided West throwing in the towel unilaterally would be a much worse alternative, and, while unlikely at this point, one that could not be excluded over the longer term.

Taking NATO expansion off the table in this way would neither imply giving up on the states surrounding Russia, nor would it result in appeasement: instead, it would open up the space for more flexible, adaptable, and, if necessary, assertive policies that may put Moscow on the back foot by reversing its spoiling advantage and confronting it with the idea that, even in the absence of an expanding alliance, it has lost control over the states and societies of ‘its near abroad’. It would, moreover, likely lower the threshold at which Moscow would be able to accept that fact because a perceived ‘loss’ of Ukraine or Georgia would not equal an expanding rival alliance on its boundaries, or a return to a past perceived by the vast majority of Russians as humiliating – a fact eagerly exploited by the Putin regime. If combined with the prospect of a de-territorialised form of great power status, Russia accepting the independence of its neighbours without them entering NATO, may prove more realistic – and beneficial – aim over the longer term.

Conclusion

Not unlike Communism in earlier times, NATO membership risks becoming a goal set somewhere in a mythical, idealised future, eternally around the corner, and always out of reach. A much more attainable approach would include tempering one’s adherence to ideal-type outcomes, while building on the resilience and will to self-determination of the societies around Russia, redefined not in terms of membership of a certain alliance, but in terms of an ability to participate in realistic, measured, flexible statecraft as sovereign states. The prudent assertiveness of the major states of Central Asia, their gradual – and relatively successful – efforts at building distinct post-imperial identities and foreign policies indicates that such an approach is not as far-fetched as it would first appear, especially if the West continued to back the same process outside the confines of NATO membership, in the former Soviet parts of Eastern Europe.[16] Such a move would take strategic foresight, and a commitment to delayed gratification on the part of the Western policymaking community, and the states concerned themselves. It would also require coordination and consent, rather than being seen as a green light for deciding ‘over their heads’.

In final analysis, taking NATO out of the equation while still remaining committed to the independence and resilience of all states would take policy from the 1990s into the 21^st century. When it comes to Russia that will require correctly calibrated signalling in the beginning, and considerable patience afterwards – most probably until the replacement of the Putin regime with ‘something else’. If that ‘something else’ results from a liberal swing in Russia’s long-term ideological pendulum, this will make life easier for any government genuinely committed to reform;[17] but, even in the absence of such a Russian ‘liberal enlightenment’, without a NATO-branded sword of Damocles, it will put the threshold at which a new, post-imperial arrangement becomes acceptable to a Russian regime at a much lower level. At the very least, it should be considered as a third option, beyond the counterproductive, sterile binary confrontation between ‘Atlanticists’ and ‘Realists’, ‘Russia hawks’ and ‘Russia doves’ around the ‘NATO membership, or bust’ axis; these new times may be calling for a revision of these outdated dividing lines.

Image by NATO under (CC).

[1] Tolz, Vera. 1998. Forging the Nation: National Identity and Nation Building in Post‐Communist Russia. Europe-Asia Studies 50 (6): 993-1022, https://www.jstor.org/stable/154053; Chafetz, Glenn. 1996. The Struggle for a National Identity in Post-Soviet Russia. Political Science Quarterly 111 (4): 661-688, http://www.jstor.org/stable/2152089

[2] McFaul, Michael. 2020. Putin, Putinism and the Domestic Determinants of Russian Foreign Policy. International Security 45 (2): 95-139, https://www.belfercenter.org/publication/putin-putinism-and-domestic-determinants-russian-foreign-policy

[3] Edward Lucas, Imperial Abnormality, CEPA, December 2020, https://cepa.org/imperial-abnormality/

[4] John J. Mearsheimer, Getting Ukraine Wrong, The New York Times, March 2014, https://www.nytimes.com/2014/03/14/opinion/getting-ukraine-wrong.html; John J. Mearsheimer,

Why the Ukraine Crisis Is the West’s Fault: the Liberal Delusions That Provoked Putin, Foreign Affairs, September/October 2014, https://www.foreignaffairs.com/articles/russia-fsu/2014-08-18/why-ukraine-crisis-west-s-fault

[5] Anders Åslund and Leonid Gozman, Russia after Putin: How to Rebuild the State, Atlantic Council, February 2021, https://www.atlanticcouncil.org/in-depth-research-reports/report/russia-after-putin-report/

[6] Waltz, Kenneth Neal. 1959. Man, the State and War: a Theoretical Analysis. New York: Columbia University Press.

[7] Laruelle, Marlène. 2020. Making Sense of Russia’s Illiberalism. Journal of Democracy 31 (3): 115-129, https://www.journalofdemocracy.org/articles/making-sense-of-russias-illiberalism/

[8] Andrei Kozyrev, The Lagging Partnership, Foreign Affairs, May/June 1994, https://www.foreignaffairs.com/articles/russian-federation/1994-05-01/lagging-partnership

[9] Zaraköl, Ayse. 2010. After Defeat: How the East Learned to Live with the West. Cambridge: Cambridge University Press, pp. 201-239.

[10] Oskanian, Kevork. 2018. A Very Ambiguous Empire: Russia’s Hybrid Exceptionalism. Europe-Asia Studies 70 (1): 26-52 (pp. 39-41).

[11] Bettiza, Gregorio, and David Lewis. 2020. Authoritarian Powers and Norm Contestation in the Liberal International Order: Theorizing the Power Politics of Ideas and Identity. Journal of Global Security Studies 5 (4): 559-577.

[12] Oksana Grytsenko, Kyiv Post Cites New Ukraine Poll: NATO support grows in Ukraine, reaches 53 percent, IRI, July 2019, https://www.iri.org/resource/kyiv-post-cites-new-ukraine-poll-nato-support-grows-ukraine-reaches-53-percent; Agenda.ge, NDI poll: 82% of Georgians support EU, 74%- NATO membership, January 2020,https://agenda.ge/en/news/2020/146

[13] TASS, CIA Working with Navalny, Kremlin Spokesman Says, October 2020, https://tass.com/politics/1207373; Tom Balmforth, Russia Accuses U.S. of Promoting Revolution in Belarus, Toughens Stance, September 2020, https://www.reuters.com/article/us-belarus-election-idCAKBN2672NC

[14] Porter, Patrick. 2020. The False Promise of Liberal Order. Cambridge: Polity Press.

[15] Oskanian, Kevork. 2019. Carr Goes East: Reconsidering Power and Inequality in a Post-Liberal Eurasia. European Politics and Society 20 (2): 172-189.

[16] Nomerovchenko, Alina, Jaechun Kim, and William Kang. 2018. Foreign Policy Orientation of Independent Central Asian States: Looking Through the Prism of Ideas and Identities. The Korean Journal of International Studies 16 (3): 389-410.

[17] Vladislav Inozemtsev, The Pendulum Effect, Riddle Russia, April 2018, https://www.ridl.io/en/the-pendulum-effect/

Topics

Conflict Resolution and Security

Good Governance and Institutional Reform

International Relations and Geopolitics

Ukraine Conflict

Regions

Former Soviet Union

Russia

Being the values you want to see in the world? Global Britain, domestic trajectories and the Integrated Review

Article by Dr Jonathan Gilmore

May 7, 2021

Being the values you want to see in the world? Global Britain, domestic trajectories and the Integrated Review

The publication of the Integrated Review (IR) in March 2021 marked the most detailed account yet of the Government’s vision of a post-Brexit ‘Global’ Britain. A vision of foreign policy as flexible and dynamic, yet committed to established partnerships, and both a defender of values and dedicated to the pursuit of national interest. Familiar tensions within UK foreign policy have remained evident, and the Review makes an obvious effort to please segments of both the Conservative Party and the electorate with very different views on Britain’s role in the world.

However, there is also much to welcome within the Review. It makes clear commitments to the ‘values’ component of UK foreign policy – support for democracy, human rights and international development. Despite the markedly nativist politics of Brexit, it seems that UK foreign policy itself has not swung decisively in this direction. However, problems can also be seen in the instrumental use of values as a stick with which to poke authoritarian states, and the corrosive impact of failing to embody these values in domestic British political life.

The IR marks a less radical shift in the UK’s international priorities than may have been anticipated, given Britain’s departure from the EU and the nativist pull of populist nationalism. These influences are certainly evident in the repeated emphasis on Britain as an independent sovereign state and its new-found flexibility as a ‘buccaneering free trader’.[1] Indeed, Dominic Raab’s description of the UK as “a creative disrupter”, reflects more than a passing hint of Trumpian rhetoric.[2]

Nevertheless, there is an important and encouraging continuity in the UK’s commitment to a ‘values’ component in its foreign policy. Indeed, the Review and Raab’s recent speeches make liberal use of the claim that Global Britain is to be a ‘force for good’ in the world. The Review marks the most assertive foregrounding of moral commitments in UK foreign policy since the similar use of ‘force for good’ nomenclature in New Labour’s foreign policy during the 1990s. The Review’s ‘force for good’ agenda maintains commitments to the promotion of human rights, democracy, the rule of law and international development, as core drivers of UK foreign policy. The Review also pushes the values agenda somewhat further, committing to support the expansion of democratic values, human rights and responsible state behaviour into the ‘future frontiers’ of cyberspace. Whilst Britain’s actual conduct of international affairs is highly unlikely to mirror its professed values at all times, their continued presence in the language of UK foreign policy is an important means of holding the Government to account for the ethical choices they make.

The Review also demonstrates a healthy degree of realism regarding the challenges faced by the liberal international order, and its fragmentation into a more polarised and competitive system. The enthusiasm for the promotion of values in foreign policy is pitched against the rise of authoritarian challengers. The familiar antagonists of North Korea and Iran are highlighted by the Review, alongside the more direct inclusion of Russia as a major security threat. The authoritarian challenge posed by China is implied, though is stated deliberately ambiguously given its importance as a trading partner. Although the fragmentation of the liberal international order is disconcerting for advocates of human rights and democratisation, the recognition of these limitations is conversely a positive development.

Assumptions about the onward march of democracy and the universal validity of liberal values have been at the heart of a range of miscalculations in Western foreign policy in the post-Cold War period. Such assumptions were latent in Western responses to the Arab Spring. In Libya, this manifested itself in excessive faith about the solidity of the National Transitional Council and the democratic trajectory in a post-Gaddafi era. In Syria, significant errors were made in assuming the inevitable demise of Bashar al-Assad and underestimating the potential of Russia as a powerful and decisive counter-revolutionary force.

The IR more openly recognises the frailty of the liberal international order and the plurality of interests and worldviews. As a strategic guide for action, this recognition provides openings for more creative and nuanced approaches to UK foreign policy. Rather than assuming a linear path to a more democratic and cooperative world order, the onus is on practitioners of British foreign policy to work pragmatically within the constraints of the present.

Within this context, the Review positions the UK in an entrepreneurial role, ‘shaping the open order of the future’, as Raab put it ‘a disruptor for stability’.[3] History has not ended, authoritarianism is not vanquished, and Western democracies must work to create the international order in which they’d like to reside.

Although the IR’s ‘force for good agenda’ keeps values firmly on the radar of British foreign policy, it also reveals a more troubling direction. Global Britain as a ‘force for good’ is quite clearly positioned in opposition to nefarious authoritarian forces, who seek to target the vulnerabilities of democratic societies and undermine social cohesion within them. The Review positions the UK in a binary struggle between rival political systems as authoritarian states seek to expand their zones of influence. Britain’s commitment to human rights, open societies, democracy and the rule of law as defining features of its ‘force for good’, are by extension polarised against the ‘forces for bad’. The IR moves beyond acknowledging the diversity of worldviews and orientates British foreign policy towards a much more direct ideological conflict.

In this context, the values around which Britain seeks to shape its foreign policy risk becoming instrumentalised in this international struggle, as tools to challenge rival powers, rather than ends in themselves. This instrumentalisation of the values component is reflected in the recent decision to more closely link development aid to national interest priorities, with the merger of the FCO and DFID.[4] Placed into the context of a global political struggle against authoritarianism, the risk is that development aid will become similarly instrumentalised and directed to allied ‘frontline states’, rather than those most in need of developmental assistance.

The IR is noteworthy for making some acknowledgment of the domestic context within the UK and its relationship to foreign policy. It recognises that ‘freedom must start at home’ – that domestic populations must be convinced of the benefits of openness and protected from the negative impacts of globalisation. The Conservative Government’s new-found popularity amongst ‘Red Wall’ voters in the economically depressed former Labour heartlands adds a new optic to this. Having myself previously argued for greater focus on the domestic foundations of UK foreign policy, I do see this recognition as a positive development.[5]

However, it is on this point that fissures in the ‘force for good agenda’ begin to emerge. The nod towards the domestic context and the steadfast commitment to values in UK foreign policy sits awkwardly with a contradictory direction in some of the Government’s domestic policies. Elements of the Government’s domestic agenda appear to undermine sources of UK soft power, threatening core values, and in certain cases suggest echoes of democratic backsliding.

The IR is explicit that democratic values, the UK legal system and ‘large and diverse diasporic communities’ are central facets of British soft power. Yet in each case, recent domestic policy approaches have worked against this.

In terms of democratic values and human rights, the Policing, Crime, Sentencing and Courts Bill, currently passing through Parliament, will impose significant restrictions on public protests and the traditional way of life of Gypsy and Traveller communities. This legislation has already met with fierce resistance from human rights and civil society groups.[6] For foreign policy practitioners, challenging crackdowns on pro-democracy protestors in Hong Kong, Belarus or Russia, becomes significantly more difficult when democratic norms on protest are under threat at home.

Along similar lines, the IR’s aspirations to infuse democratic values and human rights into the future frontiers of cyberspace, also run into tension with recent UK legislation eroding rights to privacy and enhancing the surveillance powers of the state. Enhanced powers for security agencies to intercept electronic communications and allow blanket access to internet connection records were established in the 2016 Investigatory Powers Act. End-to-end encryption remains a target of legislation.

Domestic approaches to immigration also pose an intersecting threat to human rights and the ‘people to people links’ emphasised in the Review. Ending freedom of movement and limiting immigration were central planks of the Brexit campaign and the Conservatives 2019 election manifesto, indicating that the future trajectory is to constrict, rather than expand person to person links through immigration.[7] The ‘Migration and Mobility Partnership’ agreement between India and the UK, signed in May 2021, does suggest that the search for new trade deals in the post-Brexit may demand a softening of the anti-immigration platform. At the same time, a significant component of the UK-India deal is also aimed at constraining irregular migration.[8] Positioned alongside a largely anti-immigration narrative, the Government’s enthusiasm for ‘people to people links’ is thus likely to be limited to narrow categories of outsiders who are deemed economically useful.

The ‘hostile environment’ policies that emerged from the 2014 and 2016 Immigration Acts and culminated in the Windrush Scandal, are emblematic of the human rights implications of the UK’s anti-migrant domestic policies. The Acts simplified deportation processes for irregular migrants and increased border everyday immigration surveillance powers in housing, banking and public services.

This domestic anti-immigration trajectory appears set to continue with the Government’s proposed overhaul of the UK asylum system, a move at odds with its commitments to human rights, civilian protection and international law.[9] The proposal to reduce entitlements for asylum seekers who entered Britain through ‘illegal’ means runs against the provisions of the 1951 Refugee Convention, which explicitly prohibit penalising asylum seekers due to their mode of entry to the country.[10]

Finally, domestic inconsistencies are also emergent with respect to the rule of law and the power of the judiciary. Following the Supreme Court’s ruling against the 2019 prorogation of Parliament during the EU withdrawal process, the Government’s response has been to review the power of the courts to challenge decisions by the executive.[11] Although this has not yet been translated into any formal limitations on judicial review, it does carry with it unpleasant echoes of democratic backsliding in Poland and the stripping back of judicial checks on government power.

As an agenda for future UK foreign policy, the IR thus provides cause for optimism in its foregrounding of a values-based agenda. However, there are important questions about the role values will play and inconsistencies in the depth of commitment across different spheres of state activity. The growth of authoritarianism certainly does not provide an encouraging environment within which human rights and democracy might flourish internationally. However, weaponising these values to stoke an ideological conflict with authoritarian powers is also unlikely to foster wider consensus on human rights norms and democratic development.

Similarly, erosion of human rights and democratic norms within Britain has the potential to reduce UK soft power and suggests that the promotion of these values in its foreign policy has a hollow core. If Britain wishes to defend human rights and democracy internationally against rising authoritarianism, it must embody these values domestically. Without doing so, it risks being charged with hypocrisy in attempting to shape values-based norms internationally, whilst presiding over their decline at home.

Dr Jonathan Gilmore is a Lecturer in International Politics at the University of Manchester. His expertise centre on British foreign policy, global ethics, humanitarian intervention and comparative defence and security practices. His research has featured in major international academic journals and his book ‘The Cosmopolitan Military’ was published in 2015.

[1] The Rt Hon Dominic Raab MP, Global Britain is leading the world as a force for good, The Sunday Telegraph, September 2019.

[2] FCDO and The Rt Hon Dominic Raab MP, A force for good: Global Britain in a competitive age, Aspen Security Conference, Gov.uk, March 2021, https://www.gov.uk/government/speeches/a-force-for-good-in-a-competitive-age-foreign-secretary-speech-at-the-aspen-security-conference

[3] Ibid.

[4] House of Commons Foreign Affairs Committee, Merging success: Bringing together the FCO and DFID, Sixth Special Report of Session 2019-21, House of Commons, September 2020, https://committees.parliament.uk/publications/2704/documents/26878/default/

[5] Jonathan Gilmore, Developing domestic foundations for a values-based UK foreign policy, The Foreign Policy Centre, September 2020, https://fpc.org.uk/developing-domestic-foundations-for-a-values-based-uk-foreign-policy/

[6] Liberty, Leading Organisations Join Condemnation of Policing Bill, March 2021, https://www.libertyhumanrights.org.uk/issue/leading-organisations-join-condemnation-of-policing-bill/

[7] The Conservative Party, Get Brexit Done: Unleash Britain’s Potential: The Conservative and Unionist Party Manifesto 2019, London: The Conservative Party, 2019, p. 20.

[8] Home Office, MoU on the migration and mobility partnership between India and the United Kingdom, Gov.uk, May 2021, https://www.gov.uk/government/publications/migration-and-mobility-partnership/mou-on-migration-and-mobility-partnership-between-india-and-the-united-kingdom

[9] BBC News, Priti Patel pledges overhaul of asylum seeker rules, March 2021, https://www.bbc.co.uk/news/uk-politics-56500680

[10] Article 31(1) of the 1951 Convention.

[11] Independent Review of Administrative Law, Gov.uk, January 2021, https://www.gov.uk/government/groups/independent-review-of-administrative-law

Topics

Brexit

Good Governance and Institutional Reform

International Relations and Geopolitics

Regions

Europe

United Kingdom

Crackdowns on investigative journalism in Russia versus the lack of crackdown on corruption in the UK

Article by Lana Estemirova

April 21, 2021

Crackdowns on investigative journalism in Russia versus the lack of crackdown on corruption in the UK

While Russia is cracking down on investigative journalists exposing corruption amongst its political elites, the UK’s political elites are failing to do enough to crack down on corruption exposed by investigative journalists.

The arrest of Roman Anin, Founder of iStories

On the evening of April 9^th, the founder of investigative news website iStories, Roman Anin, received an unexpected visit from the police. In what has now become a routine occurrence for many Russian journalists, his house in Moscow was searched for seven hours, his electronics were seized and thoroughly examined. The investigators were especially interested in all non-Russian materials: documents in English, articles and even Roman’s photo from Stanford University, where he is posing with his course mates.[1] There’s been some speculation on whether it is another attempt to forge a foreign intelligence agent story – something that’s already happening to a former Kommersant journalist, Ivan Safronov.[2] The following day the office of iStories also suffered from a police raid. Roman himself was taken in for questioning in connection with a privacy invasion case, where he is listed as witness. The lawsuit was filed in 2016 by oligarch Igor Sechin’s ex-wife Olga, following Roman’s investigation about the family’s luxury yacht that served as a backdrop to many of her Instagram posts.[3] The timing of the new onslaught on the Pulitzer winning journalist is intended to send a signal to him and his colleagues. Roman is also a member of the OCCRP network that investigated Panama Papers leaks, there little doubt that he is being harassed because of his work.[4]

Russia is going through something of an investigative journalism boom. In 2020 alone, outlets such as iStories, Proekt media, the Insider and many more, produced an array of investigative blockbusters exposing the corrupt underbelly of the Russian elite. The mushrooming of these newsrooms corresponds to the Government’s tightening of the screws – increasing attempts to control the internet, a severe clampdown on civil protest and the persecution of independent journalists. The work that these new media organisations produce is a fightback against the increasingly authoritarian stance of the Government. In a country where citizens’ private data can be bought and sold on the black market like an old watch, the classic definitions of journalism are being replaced with something that is closer to private investigation work.[5] And it pays off – among the most famous revelations of 2020 were the unveiling of Putin’s palace in Gelendzhik and his Crimean summerhouse;[6] a peek inside the questionable dealings of Putin’s former son-in-law, Kirill Shamalov, that landed him an immense fortune; [7] and the discovery of Ramzan Kadyrov’s mysterious wife and her luxury properties in Moscow – to name a few.[8]

The rebuttals issued by the Kremlin (including Putin himself) frame investigative media outlets as puppets of Western regimes with no agenda of their own. However, the backlash against anti-corruption activists and journalists shows that their work is perceived as a serious threat to the status quo. The whole world watched the saga of Alexei Navalny: from his Kremlin-backed poisoning and unmasking of his own murderers, to his return to Russia and inevitable arrest. Alexei’s health is deteriorating rapidly as he is being denied proper medical attention, while prosecutors propose to label organisations tied to him as extremist. This feels like a very critical moment for Russia. As of now, journalist Roman Anin is walking free but if his witness status is changed to the defendant, he will need all the publicity he can get to ensure his safety.

Russian corruption and British ‘Sleaze’

The UK has condemned the treatment of Alexei Navalny and imposed a new set of Magnitsky laws that target Russian individuals implicated in human rights abuses. But the critics note that the sanctions are not targeted enough.[9] A new set of additional sanctions to be announced in spring is set to tackle corruption by introducing asset freezes and visa bans.[10] Nonetheless, London remains a playground for rich and powerful Russians with unexplained wealth, who enjoy a plethora of financial and legal services to protect their status and reputation. The coveted ‘golden visa’ for individuals who invested £2m in the British economy has not been curtailed, despite the evidence that this fast track to residency does not have a sufficient enough screening process.[11] The lack of effective pushback implies that the British political and business establishment is easily seduced by dirty money from countries with poor human rights record. Furthermore, the Russia Report that concluded that there was foreign interference into the Britain’s domestic politics was largely dismissed by the Conservative Government.[12] In 2020, Prime Minister Boris Johnson’s appointed the son of an ex-KGB agent, Evgeny Lebedev as a life peer in a much criticised gesture.

Those who try to challenge the London ‘laundromat’ may expect a call to court. Journalist and writer, Catherine Belton, is currently being sued by Roman Abramovich for defamation over claims in her book, Putin’s People: How the KGB Took Back Russia and Then Took On the West, that the oligarch bought Chelsea football club on Putin’s orders.[13] The Foreign Policy Centre’s report Unsafe for scrutiny details the ways in which London enables the flow of dirty money and offers legal services to reprimand journalists who investigate them with SLAPP lawsuits.[14]

The recent Greensill revelations and a string of exposes surrounding the awarding of COVID-19 contracts to close contacts of the Conservative Party reveal that Britain has its own problems when it comes to corruption and the trafficking of influence.[15] Terms such as ‘sleaze’, ‘chumocracy’ and ‘cronyism’ are euphemisms that obscure the true nature of the problem. Britain is in no position to wag its finger at the elite of other nations when it is mired in its own controversy and questionable dealings. In fact, the two are very much interlinked – those with the right political or social connections, including those with dubious links with foreign governments, are able to buy influence at the highest levels of government for relatively small amounts of money, with ex-civil servants, senior government advisors and former politicians happy to lobby on behalf of their paymasters. Britain readily employs the language of human rights and civil liberties, but it is little more than window dressing if it allows itself to be compromised by the ill-gotten cash and blood money of Russian elites, complicit in the destruction of civil liberties in their homeland, while enjoying the prestige of wealth and the protection of British law in London.

[1] Alexey Kovalev, Not everyone has what it takes Roman Anin, whose home and newsroom were raided by federal agents last week, explains the challenges of investigative journalism in Russia today, Meduza, April 2021, https://meduza.io/en/feature/2021/04/15/not-everyone-has-what-it-takes

[2] BBC News, Russian space official Safronov charged in treason probe, July 2020, https://www.bbc.co.uk/news/world-europe-53319545

[3] Roman Anin, The Secret of the St. Princess Olga, OCCRP, August 2016, https://www.occrp.org/en/investigations/5523-the-secret-of-the-st-princess-olga

[4] OCCRP, OCCRP Newsletter, April 2021, https://mailchi.mp/occrp/newsletter-april15?e=3faf659e43

[5] Ben Smith, How Investigative Journalism Flourished in Hostile Russia, The New York Times, February 2021, https://www.nytimes.com/2021/02/21/business/media/probiv-investigative-reporting-russia.html

[6] Palace Navalny, Palace for Putin, https://palace.navalny.com/; Ekaterina Reznikova with Elizaveta Surnacheva, The story of how Vladimir Putin’s entourage bought the palace of Leonid Brezhnev, which he liked, Proekt Media, February 2021, https://www.proekt.media/guide/dacha-putina-krym/

[7] Roman Anin, et al., Love, Offshores, and Administrative Resources: How Marrying Putin’s Daughter Cave Kirill Shamalov a World of Opportunity, iStories, December 2020, https://istories.media/en/investigations/2020/12/07/love-offshores-and-administrative-resources-how-marrying-putins-daughter-gave-kirill-shamalov-a-world-of-opportunity/

[8] Maria Zholobova with Roman Badanin, Investigation into how Russia got its own sultanate, Proekt Media, April 2021, https://maski-proekt.media/vtoraya-zhena-kadyrova/

[9] Luke Harding, UK’s Magnitsky law does little to stem flow of dirty money from Russia, The Guardian, July 2020, https://www.theguardian.com/world/2020/jul/10/uk-magnitsky-law-does-little-stem-flow-dirty-money-from-russia

[10] Dr Susan Hawley, The UK’s new corruption sanctions regime – Can it help end the UK’s role as a global money laundering centre and what role will journalists play?, FPC, March 2021, https://fpc.org.uk/the-uks-new-corruption-sanctions-regime-can-it-help-end-the-uks-role-as-a-global-money-laundering-centre-and-what-role-will-journalists-play/

[11] Will Bedingfield, How the golden visa scheme let Russian money pour into the UK, Wired, July 2020, https://www.wired.co.uk/article/russia-report-golden-visas

[12] BBC News, Russia report: UK ‘badly underestimated’ threat, says committee, July 2020, https://www.bbc.co.uk/news/uk-politics-53484344

[13] Murad Ahmed, Roman Abramovich sues HarperCollins over Chelsea acquisition claims, Financial Times, March 2021, https://www.ft.com/content/b79f2c82-6974-4fd7-8899-266025b7436b

[14] Susan Coughtrie, Unsafe for Scrutiny: Executive Summary & Recommendations, FPC, December 2020, https://fpc.org.uk/unsafe-for-scrutiny-executive-summary-recommendations/

[15] Peter Walker, What is the Greensill lobbying scandal and who is involved?, The Guardian, April 2021, https://www.theguardian.com/business/2021/apr/14/what-is-greensill-lobbying-scandal-who-involved; Toby Helm and Michael Savage, The return of Tory sleaze: a scandal set to haunt Boris Johnson, The Guardian, April 2021, https://www.theguardian.com/business/2021/apr/18/the-return-of-tory-sleaze-a-scandal-set-to-haunt-boris-johnson

This piece was produced as part of the Unsafe for Scrutiny project, which is kindly funded by the Justice for Journalists Foundation.

Topics

International Relations and Geopolitics

Investigative journalism

Media and Online Freedom

SLAPPs

Regions

Europe

United Kingdom

Former Soviet Union

Russia

With growing public calls for a Council of Europe recommendation on SLAPP, is now the time for the UK to act on this issue or risk falling behind?

Article by Susan Coughtrie

April 7, 2021

With growing public calls for a Council of Europe recommendation on SLAPP, is now the time for the UK to act on this issue or risk falling behind?

This week Unsafe for Scrutiny’s Project Director, Susan Coughtrie, spoke with Sarah Clarke, Head of Europe and Central Asia at ARTICLE 19, Flutura Kusari, Legal Advisor at the European Centre for Press and Media Freedom (ECPMF), Charlie Holt, Legal Counsel for Campaigns at Greenpeace International, Dirk Voorhoof of the Human Rights Centre at Ghent University, and Nora Wehofsits, International Advocacy Officer at the Human Rights House Foundation (HRHF). They have been spearheading initiatives, as part of a broader coalition of civil society groups, to address the issue of strategic litigation against public participation (SLAPP) across Europe.^[1]

On 26 March 2021, 106 civil society organisations, on the initiative of the Coalition Against SLAPPs in Europe (CASE), signed a public call for the Council of Europe (CoE) to introduce a recommendation to combat SLAPPs.^[2] The joint statement points to the growing body of evidence that shows a rise in the use of costly legal procedures, or the threat thereof, as a means of silencing critical expression across the continent. This latest initiative follows a similar one launched in December 2020, to push for the adoption of a European Union (EU) Directive to address SLAPP amongst its 26 member states.^[3] With the United Kingdom (UK) firmly ‘Brexited’, an EU Directive if taken forward would not have any remit in this country. The UK is however still part of the CoE, a body that it was instrumental in founding in 1949, and with 47 member states has a much wider reach than the EU.

Given the UK’s ignoble role as the leading international source of legal threats against journalists, it gives rise to the question as to what positive part could, and should, the country play in addressing SLAPPs both at the CoE and domestically.^[4] Unlike in the EU, there has been little official recognition by authorities in the UK of the serious impact that legal threats emanating from this country have on journalists, as well as wider society, both here and abroad. For example, the first ever UK National Action Plan on the Safety of Journalists, recently published by the Government makes no mention of legal threats or SLAPP cases, focusing solely on physical violence and online harassment.^[5] This is despite several examples of legal threats coming intertwined with other types of violations against journalists, including smear campaigns, online trolling, surveillance and hacking.^[6]

SLAPP cases in Europe are being actively documented through the ECPMF’s Mapping Media Freedom tool as well as the CoE’s own ‘Platform to Promote the Protection of Journalism and Safety of Journalists’.^[7] Greenpeace EU and Index on Censorship have published reports on the rise of SLAPP in Europe and FPC’s own findings have pointed to the impact of legal threats.^[8] In FPC’s global survey of 63 investigative journalists in 41 countries, published in November 2020, 73% of all respondents experiencing threats had received communication(s) threatening legal action as a result of information they had published. Moreover, almost half of those experiencing any form of threat stated that it was legal ones that have had the most impact on their ability to continue working.^[9]

The need for a CoE Recommendation has been set out in a memorandum outlining measures to deter and remedy the use of SLAPPs, published in tandem with the joint statement. It was authored by a CoE sub-committee of the CASE coalition, who have responded to questions regarding the importance of a CoE recommendation and what role the UK could play:

Q: How does the recommendation differ from, or indeed connect with, action being taken elsewhere – e.g. the draft Anti-SLAPP Directive at the EU or initiatives at a national level?

Nora Wehofsits: “SLAPPs are a threat across Europe. So a CoE recommendation is of great importance to positively influence developments throughout CoE member states, also those that are not members of the EU. At present, no dedicated European human rights standards document on SLAPPs exists. A recommendation is the most suitable way to create this and can provide a coherent set of guidelines, also to the EU, on how to prevent SLAPPs by way of legislative action or other remedies.”

Q: Why should the UK care about this issue at the CoE?

Charlie Holt: “A combination of plaintiff-friendly libel laws and high legal costs have made the UK particularly fertile ground for legal intimidation. The UK continues to be a favourite destination for libel tourists and a breeding-ground for aggressive SLAPP-happy law firms. The fact that the country is now out of the EU – and therefore outside the jurisdiction of a potential EU anti-SLAPP directive – makes the intervention of the CoE all the more important to the UK. A CoE recommendation would set authoritative standards on what protective measures are required from the UK, and could help positively shape domestic legal reform to tackle SLAPPs in the country.”

Q: Is there the scope for the UK to play a key role, particularly given they are no longer part of the EU?

Dirk Voorhoof: “SLAPP suits can also be construed as cross-border disputes, and lead to (abusive) forum shopping. In such circumstances plaintiffs make use of applicable rules of private international law to select the jurisdiction where the likelihood of achieving the desired result is the greatest instead of the one that has the closest connection to the dispute, or instead of the one where there is less perspective that the plaintiffs’ lawsuit would be declared admissible, let it be well-founded. The UK is familiar with this phenomenon, which has been labelled as ‘libel tourism’ to the UK. The existence of uniform safeguards, applicable in all Member States of the CoE, including the UK, would reduce the attractiveness of libel tourism, apart from the specific measures that can be taken in the UK in order to reduce such claims where plaintiffs and defendants are established and have their main activities outside the UK.”

Q: What action would you like to see from the UK and its permanent representation in Strasbourg? Or members of the UK’s Delegation to the Parliamentary Assembly to the CoE (PACE), are there concrete ways they can show their support for the Recommendation?

Flutura Kusari: “There are a number of actions PACE can take. In particular, it can adopt a resolution or a recommendation calling on CoE member states to take concrete steps against SLAPPs, and it can ask the Committee of Ministers to issue its own recommendation on this topic. We would like to see the UK delegation to PACE actively supporting these steps. We hope the permanent representations of the UK in Strasbourg will engage in all discussions about SLAPPs and will proactively support any effort to fight them.”

Q: What would the adoption of this recommendation mean for national governments, including the UK?

Sarah Clarke: “A CoE Recommendation can guide national authorities to build safeguards into the procedural framework of the state laws, so that SLAPP lawsuits are as far as possible deterred, or else can be dismissed at an early stage. Safeguards against disproportionately large damage claims and provisions for legal aid must also be introduced; these are difficult or impossible for a judge to create, and must be provided for in legislation. Even if it is not legally binding, a CoE Recommendation sends a strong persuasive message to the member states to implement the guidelines or principles of a recommendation into their domestic law and practices. Furthermore, the European Court of Human Rights (ECtHR) at several occasions has integrated principles and guidelines of COE recommendations into its jurisprudence and hence made them binding for the member states in interpreting and applying the (binding) European Convention on Human Rights. Ultimately, however, national governments must demonstrate the political will to implement these reforms in order to prevent the practice of SLAPPs.”

In a recent article for FPC, Dr Alice Donald and Professor Philip Leach argued that “the time is ripe for the UK to reset its relationship with the CoE and reclaim the moral and political leadership that it once showed.”^[10] They reference the fact that the UK was an early signatory of the European Convention on Human Rights in 1950, and it was British lawyers who, from the 1970s, pioneered litigation before the European Court of Human Rights in Strasbourg, shaping its early and most influential case law.^[11] Yet despite this, and that the UK remains one of CoE’s five largest financial contributors, Donald and Leach state that “no mature democracy has done more to destabilise the CoE in recent years than the UK”.^[12]

On that basis, one might fear the outlook is bleak. The remaining question is whether the UK will see these calls for anti-SLAPP initiative at the CoE as an opportunity to support action in line with its stated foreign policy priority of promoting media freedom globally. Or risk being seen to fall behind its European counterparts on addressing this important topic.

^[1] The Coalition Against SLAPPs in Europe (CASE), which publicly launched on 26 March 2021, is made up of a wide variety of civil society organisations who are campaigning for anti-SLAPP initiatives to be adopted at the European Union and the CoE. CASE members are also documenting cases, with the possibility to self-report via the CASE website – www.the-case.eu.

^[2] Statement on The Need for a Council of Europe Recommendation on Combating SLAPPs, CASE, March 2021, https://www.the-case.eu/statement-on-the-need-for-a-council-of-europe-recommendation-on-combatting-slapps

^[3] PROTECTING PUBLIC WATCHDOGS ACROSS THE EU: A PROPOSAL FOR AN EU ANTI-SLAPP LAW https://dq4n3btxmr8c9.cloudfront.net/files/zkecf9/StopSLAPPs_04Dec.pdf

^[4] Unsafe for Scrutiny: Examining the pressures faced by journalists uncovering financial crime and corruption around the world , FPC, November 2020, https://fpc.org.uk/wp-content/uploads/2020/11/Unsafe-for-Scrutiny-November-2020.pdf

^[5] Department for Digital, Culture, Media & Sport and Home Office, Guidance Note: National Action Plan for the Safety of Journalists, UK Government, March 2021, https://www.gov.uk/government/publications/national-action-plan-for-the-safety-of-journalists

^[6] Susan Coughtrie, The UK as a key nexus for protecting media freedom and preventing corruption globally, FPC, December 2020, https://fpc.org.uk/the-uk-as-a-key-nexus-for-protecting-media-freedom-and-preventing-corruption-globally/

^[7] ECPMF, Mapping Media Freedom, https://www.ecpmf.eu/monitor/mapping-media-freedom/; Council of Europe, About the Platform for the Protection of Journalism and the Safety of Journalists, https://www.coe.int/en/web/media-freedom/the-platform#:~:text=WHY%20THE%20PLATFORM%20%3F,E%20uropean%20Convention%20on%20Human%20Rights

^[8] Greenpeace EU, Sued into Silence: How the Rich and Powerful use Legal Tactics to Shut Critics Up, July 2020, available at: https://storage.googleapis.com/planet4-eu-unit-stateless/2020/07/20200722-SLAPPs-Sued-into-Silence.pdf and Index on Censorship, A Gathering Storm: the Laws being used to Silence the Media, available at: https://www.indexoncensorship.org/campaigns/the-laws-being-used-to-silence-media/

^[9] Unsafe for Scrutiny: Examining the pressures faced by journalists uncovering financial crime and corruption around the world , FPC, November 2020, https://fpc.org.uk/publications/unsafe-for-scrutiny/

^[10] Dr Alice Donald and Professor Philip Leach, Engaging with Europe after Brexit: Time to reset the UK’s relationship with the Council of Europe, FPC, December 2020, https://fpc.org.uk/engaging-with-europe-after-brexit-time-to-reset-the-uks-relationship-with-the-council-of-europe/

^[11] Dr Alice Donald and Professor Philip Leach, Engaging with Europe after Brexit: Time to reset the UK’s relationship with the Council of Europe, FPC, December 2020, https://fpc.org.uk/engaging-with-europe-after-brexit-time-to-reset-the-uks-relationship-with-the-council-of-europe/

^[12] Dr Alice Donald and Professor Philip Leach, Engaging with Europe after Brexit: Time to reset the UK’s relationship with the Council of Europe, FPC, December 2020, https://fpc.org.uk/engaging-with-europe-after-brexit-time-to-reset-the-uks-relationship-with-the-council-of-europe/

This piece was produced as part of the Unsafe for Scrutiny project, which is kindly funded by the Justice for Journalists Foundation.

Topics

Brexit

Civil Society

Good Governance and Institutional Reform

Investigative journalism

Media and Online Freedom

SLAPPs

Regions

Europe

United Kingdom

Is the US pulling ahead in the global fight against corruption and what does this mean for investigative journalists?

Article by Susan Coughtrie and Casey Michel

March 24, 2021

Is the US pulling ahead in the global fight against corruption and what does this mean for investigative journalists?

This week Unsafe for Scrutiny’s Project Director, Susan Coughtrie, spoke with Casey Michel, a US based investigative journalist, and author of the upcoming book American Kleptocracy, to get his insights into recent, promising anti-corruption developments in the US and what impact he expects these to have on the global fight on corruption as well as the work of journalists like him who play a critical role in uncovering it.

Susan Coughtrie (SC): President Biden’s entry into the White House appears to have come hand in hand with renewed interest in the US stepping up its efforts in the global fight against corruption, with his administration declaring it a ‘core national security interest’. What do you think have been the driving factors behind these latest developments?

Casey Michel (CM): From my vantage point, there are two primary drivers behind this increasing interest in and focus on addressing, corruption, kleptocracy and the enablers that allow it to operate. The first, specific to the American context, is our experience under the previous president, Donald Trump. We have witnessed how these corrupt, kleptocratic networks, which initially helped propel Trump into power, took full advantage of having a figure like him in the White House. It was, speaking frankly, a horrible four years – dispiriting, depressing, and inordinately challenging – but a silver lining was it brought all of these concerns around dark money networks and the tools they use, such as anonymous shell companies and real estate purchases, to the fore. It forced so many Americans, and their allies, to closely examine the links between transnational corruption and the potential dismantling of the broader liberal democratic project, including national security and electoral security. That is the legacy that we are seeing the Biden administration’s reacting to now, having witnessed what could potentially happen if we continue to ignore these corrupt, kleptocratic elements operating within our society.

The second driver is the broader growing international awareness of kleptocracy and transnational corruption over the past few years. Both through the release of large scale journalistic investigations, such as the Panama Papers and Paradise Papers, as well as a number of reports coming from high level bodies, including the United Nations and the European Union. Awareness has grown as to the magnitude of these offshoring systems used by kleptocratic networks as well as the wider societal impact they can have on, for example, wealth inequality or geopolitical instability. What we have seen on the American side of things is a kind of microcosm of what has been taking place internationally – including examining the kinds of policy proposals that are going to be required to unwind the impact these networks have already had.

SC: The passing of the US Congress of the Corporate Transparency Act (CTA) on 1 January 2021 has been described by anti-corruption campaigners as ‘historic’. Amongst other measures, the CTA introduces requirements that will put an end to the practice of anonymous shell companies operating inside the country. As someone who has written extensively about corruption facilitated through shell companies in US jurisdictions, what impact do you think this legislation will have? Is it as positive as it sounds?

CM: This is a remarkable piece of legislation and it is difficult to understate just how important it is. There has been an effort to ban the formation of US anonymous shell companies since at least 2008, with a very clear through line of bi-partisan support, however for a number of reasons it did not happen. The US for years and years has been the capital of anonymous shell company formation thanks to states like Delaware, Nevada and Wyoming, which sold anonymous shell companies to anybody who wanted them – drugs or arms traffickers, oligarchs or dictators’ families – all and sundry could get an anonymous American shell company in 15 minutes for $100, if that. So thousands and thousands of these anonymous shell companies were being created every single year, and it was impossible to track back who is running them, who is profiting from them, who was taking advantage of them, but now because of this legislation it will.

This is an instance of the US following others’ lead. The UK for example passed similar legislation a few years ago, which means you can go to Companies House’s website and plug in the company you want and find information about who the person of significant control (PSC) is for it. The American variant is not going to be public, its entries are only going to be accessible to American law enforcement authorities and other foreign governmental officials or bodies that file the proper paperwork to request information. So journalists like myself, or researchers are not going to be able to access information, but that is fine for right now. We will get there at some point, some day. The fact of the matter remains that, at long last, the US is no longer the global capital of anonymous shell company formation.

SC: One of the problems that has faced the UK has been implementation and enforcement. There have been criticisms of Companies House, which is currently going through another review, but at least there has been a level of transparency. Do you have concerns about that from the US point of view, given that it is going to be a closed book and as a journalist you are not going to be able to check that what was promised is being done?

CM: I do, and not least because if there is one lesson to be taken from the UK example from the past few years, it is that enforcement is just as key as the actual passage of legislation. There are any number of journalists who have done fantastic work looking through just how porous the UK system of beneficial ownership information collection remains. At the end of day, even though the legislation exists, even though there is information on file, that does not mean that it is accurate and it does not guarantee that the person listed is the beneficial owner or the proper address has been given etc. Enforcement for any comparable pieces of legislation is always going to be a concern and even more so in the US now that it is private and there is not the possibility to have journalists like myself, researchers or major media outlets looking through as a non-governmental check to make sure that information is accurate. So the US has taken one giant step forward, there is still more work to do, but the US is moving in the right direction. If anything under the new administration the momentum will only continue and this legislation is an excellent platform upon which to build.

SC: What effect do you think the US’s renewed anti-corruption efforts are going to have on the country’s foreign policy? Particularly when dealing with countries in which the political elites have reputations for laundering their money in the West?

CM: From my end, there are two responses to that. There will be a restoration of American leadership on issues such as good governance, pro-transparency and anti-corruption reforms that the US has put forth for decades. For example, we are now four and half decades after the Foreign Corrupt Practices Act was passed in the US, which really set the bar for legislation that we see elsewhere, whether that is the EU or the UK. On the one hand, this low hanging fruit – American leadership in this space should never have been abdicated – on the other hand the current administration’s efforts in this area are likely to be welcomed by many abroad. The flip to that, is how is it going to affect American foreign policy with those who have benefitted under the last four years? The short answer is I do not know, and I am excited to see. However, what comes to mind is the numerous instances of oligarchic figures in places like Ukraine, Russia, Malaysia, Indonesia and Turkey using the tools of financial secrecy to wheedle their way into the levers of American power, that is to say access those close to or in fact in the White House. Influencing American foreign policy decisions over the past four years followed the line of ‘the deeper your pockets, the easier it is’. And to a certain extent that is true for every administration – but there were elements which made it grotesquely and ludicrously easy for those with dirty money, those involved in kleptocratic networks, who will not be able to achieve the same level of success as they did over the last four years.

One of the figures that I am writing about in my book, which will come out later this year, is a Ukrainian oligarch called Igor Kolomoisky. Widely considered the most powerful oligarch in Ukraine – who has a very lengthy and sometimes concerning relationship with the Ukrainian President Zelensky. Ukraine has been going through fits and starts of ‘de-oligarchisation’ for years and years now, encompassing two revolutions. Obviously the previous administration did not care one bit about that, but in just the first two months of the current administration sanctions have been introduced against Kolomoisky. It was very much a shot across the bow to convince Ukraine that now is the time, the US is here to support you, in order to take the necessary steps to remove the remaining influence of the oligarchs in the country. So that is already one manifestation of the kinds of new policies out of the current US administration, which certainly I and many others who work in this space are very grateful for.

SC: What have the biggest challenges been for you as a US-based investigative journalist uncovering financial crime and corruption? Do you anticipate those becoming more or less challenging in light of the recent developments?

CM: Fortunately I have never experienced or had to deal with any serious threats to my safety and security, and much of that has to do with the fact that I am based in the US. Although I know that journalists have died in the EU in the past few years, working on similar topics, so it is not anything that I take for granted. Particularly given the way the last US President had no qualms about whipping up his supporters to incite violence and threats against the personal safety of journalists.

The challenges I face are twofold – access to information and legal pressure. Firstly, these kleptocratic networks rely on secrecy and anonymity and have built in defences to throw off investigative journalists like myself and other researchers, whether in the American context or elsewhere. That is a structural challenge in and of itself, which is not going away any time soon despite the new legislation. Secondly, there are the legal threats and pressures, underpinned by lawyers as well as reputation management and PR companies who work in tandem for their clients, which have only been increasing in recent years.

SC: As part of FPC’s Unsafe for Scrutiny project we have been documenting cases of journalists facing vexatious legal threats emanating from the UK, sometimes accompanied by smear campaigns and forms of harassment orchestrated by reputation management companies. Do you perceive a parallel in the US?

CM: Yes, this is a manifestation of a pattern that we have seen in the UK already. Obviously there are different legal structures and different elements at play, but at a 10,000 ft. level there are similar dynamics that are moving in a very concerning direction. There are structural issues within the media, the decreasing budgets, decreasing willingness to push back against some of these figures, increasing concerns, understandably about being taken to court and not being able to succeed, or even to bankroll the defence of some of these pieces of coverage. A few months ago I submitted a story to an outlet and the editor got back to me to say this is great, nothing is factually incorrect, but we are just going to cut a lot of the case studies, which I had included, because we don’t want to deal with the lawyers that are going to be involved with this. It was a quick look into the internal discussions that take place in American media regarding concerns about threats from lawyers working at the behest of these transnational oligarchic and kleptocratic figures. Most concerning is that they do not even have to file lawsuits or email or call the media. They have done it enough already that the editors are now less willing to go through with publishing these details, which are accurate and pertinent but would cause problems.

There is every reason to think that if there is not a very concerted effort to stop the direction the US is going in, we will end up in the same position that the UK is in right now, pertaining to these legal threats, pertaining to these backroom conversations that prevent information from ever even being published, let alone being published and then seeing a lawsuit thereafter.

SC: Do you think it is the internal financial considerations and the declining revenues that is the missing element stopping media from fighting back or is it something more than that?

CM: I think the resourcing is one of the primary, if not the primary, issues; it’s certainly not illogical to foresee the constraints for news outlets and journalists, and why there is going to be a greater reticence to fight some of these threats. At the same token it’s almost a reinforcing dynamic, in so far as the less that these outlets are willing to fight back the greater the temerity, the greater the aggression these figures, networks, lawyers, and PR teams will employ to push as far as they possibly can. They know that these outlets’ backs are up against the wall. This is the thing: They do not even have to file the lawsuits, they do not even have to go to court, all they have to do is make a phone call, email or whatever it might be or as I experienced a few months ago – they just have to have their reputations already in the editors’ minds to convince the outlet to say, ‘Well, the article is perfectly accurate but we just do not want to deal with these lawyers, with these figures, we do not want to tangle with them, so we are going to forego including some details in there.’

SC: Whereas those figures on the other side who want to hide their wrongdoing are presumably well resourced and motivated?

CM: Absolutely, there is no limitation on their funds. This is why what you and your colleagues, as well as some of the other civil society organisations, are doing is so necessary to raise awareness that this dynamic is at play. As well as highlighting what the logical extension and outcomes of this dynamic will be. This is the beauty and the horror of the last four years in the US, is that it has allowed the current administration to propel itself and these anti-corruption reforms forward. But it is just by the hair of our chins that we dodged far more bullets than we would have ever anticipated. We came so close, far closer than I think we are really aware of, to just how dark things could have gotten if Trump won re-election. To say nothing of whether he wins in four years time or not. When you have high level people in the US administration declaring the press ‘the enemy of the people’ and Supreme Court Justices saying we need to revisit basic First Amendment protection for the press. All this tilts that balance even further in the favour of those corrupt figures.

SC: What else would you like to see change to improve the safety of investigative journalists investigating financial crime and corruption based in the US or elsewhere? For example, do you think greater recognition of their work in official initiatives, like the sanction regimes, provides a form of protection?

CM: I have been involved in some of the conversations from the civil society side with US government officials about sanctions list and I do frankly think that is an absolute boon to the scope of Global Magnitsky, and the efficacy of sanction programmes like this, to have journalists and civil society involvement. That input is absolutely a benefit to what these programmes stand for and how they should be successfully implemented. Certainly anything that can increase the scope and capacity of those conversations, of that flow of expertise and flow of recommendations to government bodies is something I could absolutely get behind.

In terms of recognition, the reports that FPC has already issued, including the survey findings etc., regarding this topic are a necessity. When you think about it, especially on the American side, and I’m sure on the British side as well, these media outlets are already showing themselves less than willing to push as far as they should, uncover as much as they should and stand by as much as the findings as they should. There is no reason to think that outlets will then also highlight how many pressures they are facing, how many threats they are facing. Those considerations are working on two different trajectories, at which point civil society needs to step into the breach. Someone else other than the media needs to detail and analyse and publicise these issues facing them, so that policy platforms can be implemented. Civil society has a different role from journalists, but at the end of the day they are moving in similar directions and can work in tandem with one another.

SC: The UK has previously sought to position itself as a global leader in tackling corruption, however arguably it now appears to be falling behind. The most recent FinCEN Files investigation, released in September 2020, brought to light that the US Treasury refers to the UK as a ‘higher risk jurisdiction’ – do you perceive any changes in the US – UK relationship as a result of this apparent widening gap in anti-corruption efforts?

CM: In the short term no, I do not think that this is going to shift anything in terms of the core pillars of the relationship. There was concern amongst some of the anti-corruption reformers regarding Brexit, which was that unmoored from EU regulations the UK would undercut some of the existing anti-corruption and pro-transparency protocols. Certainly some developments in the past few months in the UK feed directly into those concerns.

In the long term, and a lot can change in a decade or two, my sense is the relationship is strong enough to weather any number of crises. One potential fault line that could emerge however would be over the overseas territories. The British Virgin Island (BVI) beneficial ownership registry is supposed to be coming, as is the Caymans registry, but they’ve punted it down the line already and if the rest of the world continues creating beneficial ownership registers and BVI and Caymans are still lagging– at what point does the US or Brussels or whomever come forward and say enough is enough and this will begin impacting trade policies.

A key message to get across to policy makers – to say nothing of the broader public in the West – is the falsity of the notion that corruption, kleptocracy and authoritarianism, and the realities and trajectories that make them happen, take place over ‘there’ – i.e. in Azerbaijan, Kazakhstan, Russia. But in reality, it is the Western service providers, the Western enablers – lawyers, PR firms, non-profits, company service providers – that are propelling these networks and are allowing these corrupt influences to integrate themselves into Western politics, British politics, US politics. We need to upend these antiquated notions that it is something that is happening elsewhere, because it’s not. It is right here and it’s been here for years and years, but thankfully in the US we are starting to see some change.

Casey Michel is a writer, analyst, and investigative journalist working on topics ranging from kleptocracy, illicit finance, and foreign interference to developments in the post-Soviet space and dark money financing networks. His upcoming book American Kleptocracy will be published in October 2021 (available for pre-order here). Michel is also a member of the Advisory Council for the Hudson Institute’s Kleptocracy Initiative, where he helps co-host the “MAKING A KILLING” podcast on corruption and kleptocracy.

Michel will be speaking at the Foreign Policy Centre’s upcoming event on 20 April – Investigating Corruption: US versus UK – A Widening Transatlantic Divide? – alongside Tom Burgis, Investigations Correspondent at The Financial Times and author of Kleptopia: How Dirty Money Is Conquering the World’, Dr Sue Hawley, Executive Director of Spotlight on Corruption and Dr Tena Prelec, Research Fellow with the Department of Politics and International Relations at the University of Oxford, and part of the Global Integrity Anti-Corruption Evidence Project.

Full details of the event and registration is available here.

This interview was produced as part of the Unsafe for Scrutiny project, which is kindly funded by the Justice for Journalists Foundation.

Topics

Good Governance and Institutional Reform

Human Rights

Investigative journalism

Media and Online Freedom

SLAPPs

Regions

Europe

United Kingdom

United States and Canada

United States

A response to the Integrated Review

Article by Dr Kate Ferguson

March 18, 2021

There is a lot to digest in the much awaited publication of the Prime Minister’s Integrated Review (IR) of UK international policy. It is a weighty enough document of over 100 pages and there is more evidence of strategic thinking than sceptics projected but inevitably there are more top lines than details. That’s the nature of these documents – a vision that sounds great on paper but how these shifts in understanding, prioritisation and implementation evolve will be the real measure of the IR’s success. Or, as the outcomes paper says itself, ‘what Global Britain means in practice is best defined by actions rather than words.’

I called in various forums and submissions to the IR, including in an article for the Foreign Policy Centre, for atrocity prevention to be integrated at the heard of UK foreign policy and for the narrow approach to conflict to be broken open.[1] I wasn’t alone in these recommendations; the Foreign Affairs Select Committee suggested the IR prioritise mediation, conflict resolution and atrocity prevention and the UK Atrocity Prevention Working Group called for a national strategy.[2]

While the outcomes paper falls short of committing to a comprehensive strategy on mass atrocities, it does promise greater emphasis on atrocity prevention. And to be fair to the authors, it is perhaps not a great surprise that more was not fleshed out in the one page dedicated to the UK’s approach to conflict and stability within the new strategic framework. As the various sub-strategies are drawn up and the merger of the FCDO is finalised, we should expect to see this commitment built out across the new architectures of government, properly integrated throughout new UK policy and training, and the creation of new positions of appropriate seniority in the FCDO and other relevant departments.

The new framework also sets out a prioritisation of ‘grievances, political marginalisation and criminal economies’ as part of ‘a more integrated approach to government work on conflict and instability.’ This signals a critical and very welcome shift in the understanding of where much modern violence comes from. The UK approach to conflict was always too conceptually narrow and programmatically disjointed to meet the complex challenges posed by the rising incidence of genocide, crimes against humanity and other mass atrocity crimes.[3] The false but common assumption that such acts follow on from armed conflict meant that the propellants of identity-based violence and atrocities – namely grievances, discrimination, and marginalisation – were too often absent from UK development priorities and prevailing HMG conceptualisation of where complex violent contexts come from.

The focus on criminal economies is also good news. We know that modern atrocities and conflict are commonly accompanied – and at times waged by – organised criminal networks and yet UK conflict prevention has rarely prioritised strategies that address organised crime, corruption and the petty criminality that perceived immunity breeds in the lead up to, during, and in the wake of organised violence. In bringing these dynamics to the forefront of UK thinking, a spectrum of preventative interventions opens up for the UK and its networks, from a more creative use of the new sanctions regime to programme design that seeks to interrupt the recruitment of potential perpetrators. I would like to see this priority area being joined up with the UK’s approach to serious and organised crime, bringing in the services of the intelligence agencies and the mapping exercises that track and trace the networks of non-state actors, smuggling routes, illicit cash flows, and so on. Modern atrocities, particularly those that are identity-based, can very often be understood best as a type of organised crime and many of the principles of prevention and response are transferable.

Another welcome shift in the approach to conflict is the commitment to ‘focus on political approaches to conflict resolution’, again something that has for so long been absent in how the UK responds to violence, with DFID often preferring instead to focus almost entirely on the humanitarian consequences. If this new focus does indeed signal a willingness to get into the political reasons why modern conflicts and atrocities occur, we should expect to see a much needed investment in the diplomatic corps, analysts, civil society relationships, and a willingness to be more creative with the tools and levers at the UK’s disposal. The FCDO merger, while posing a real risk to some of DFID’s more longstanding (and crucial) contributions, does pose a genuine opportunity to develop a coordinated approach to conflict and atrocities, and which rightly puts a political response to violence at the heart.

Perhaps the most important indication the paper gives of a change in approach is the prevention-first framing and a focus in earlier ‘upstream’ priorities, which connect strongly with the central thread throughout the whole document of resilience. The UK’s overriding approach to conflict and mass atrocities has been one of response, of firefighting, and consequently has often resulted in missing opportunities to help mitigate risks. Whether in Rakhine in Myanmar in 2017, in Central African Republic in 2014, or Syria in 2011 those windows where risks against populations could still be mitigated or stemmed slipped by before the UK had properly recognised the trajectory of violence.

Throughout, the IR promises an integrated approach to national security ‘that covers the full lifecycle of risk: anticipation, prevention, preparation, response and recovery’. This has the potential to bring together policy threads that are usually seen as being disparate or unrelated. The promise of deeper integration across government builds on the Fusion Doctrine introduced in the 2018 National Security Capability Review, which encouraged more effective and joined up approaches to threats like serious and organised crime. The potential gains are significant: ‘A more integrated approach supports faster decision-making, more effective policy-making and more coherent implementation by bringing together defence, diplomacy, development, intelligence and security, trade and aspects of domestic policy in pursuit of cross-government, national objectives.’ If this big promise can be properly built in to how the UK monitors, mitigates, and prepares for violent crises, and if Government fully commits to ‘acting upstream to tackle risks at source’ – from mass atrocities to climate action as well as efforts to disrupt transnational organised crime groups, this prevention-first approach to policy thinking will save lives, money and political capital.

And so even in the brief outlines of a new approach to conflict and resilience we can see the influence of the principles of atrocity prevention, not only in recognising grievances, marginalisation and criminal economies as priority areas, but also in the commitment to invest in political approaches to disputes (something parts of DFID always pushed back against), and the overall emphasis on prevention and resilience (something that was never enough pronounced in DFID and something FCO never thought was their responsibility).

But the success of this new approach to conflict will depend on political leadership at the ministerial level and within the civil service, the development of clear-eyed sub strategies, and the extent to which an understanding of grievance and marginalisation is embedded across HMG. Much of this will be down to the new Conflict Centre within the FCDO that promises will ‘draw on expertise from across government and beyond to develop and lead a strategic conflict agenda, harnessing the breadth of conflict and stability capabilities and working with partners to increase our impact in preventing, managing and resolving conflict in priority regions.’

Within this new Conflict Centre we’ll want to see a fully integrated architecture that houses new atrocity prevention systems and capabilities but coordinates implementation beyond the conflict corps and across government. This new approach to violence prevention and civilian protection should look to integrate currently overlapping – but not coordinated – agendas such as Women Peace and Security, Protection of Civilians, Human Rights (including sexual orientation and gender identity, freedom of religious belief, and media freedom), peacebuilding, peacekeeping, and counter terrorism/counterinsurgency, Preventing Violent Extremism, and Organised Crime.

Preventing and responding to modern atrocities and conflict requires a holistic, integrated approach, which is what the IR promises on paper but ultimately it will be actions that determine the extent to which this comes to life. Already there are concerns that the words of the Integrated Review do not match the deeds of government.[4] The steep cuts that have already been announced jar with many of the promises laid out in the IR. A commitment to tighten focus on the cross-government Conflict, Stability and Security Fund (CSSF) by prioritising its resources on the foundational link between stability, resilience and security is only welcome if it is matched by a commitment to invest in a wider breadth of civil society organisations and move away from the large contracts with private enterprises that lack the fundamental understanding of the very root causes the new approach to conflict promises to tackle. It seems natural that the Government needs to go back to community building and away, finally, from strategic communications-based interventions that take up so much of the CSSF budget.

The creation of an Open Societies directorate within FCDO should be an additional forum where the new commitment to address grievances and marginalisation could be embedded; certainly if the UK’s new emphasis on atrocity prevention does not sit across Open Societies as well as the new Conflict Centre, the FCDO will risk replicating the cracks between DFID and FCO, between which the implementation of the atrocity prevention and human rights – rather than their superficial promotion – so often fell.

It is important that upholding human rights has been retained as a core principle of continuation but it’s far harder to see what is new or bold here. There are hints at what this change in approach towards conflict and human rights might look like, including the recognition of the ‘increasingly blurring the boundaries between war and peace’ and the recognition that conflict and instability will remain prevalent and likely increase ‘unless concerted action is taken to address underlying political, social, economic and environmental drivers, especially in fragile states.’ The relationship between a commitment to confront marginalisation and prioritise political approaches to resolution will inevitably require frameworks of human rights, identity-based violence, and atrocity prevention; if this work does not become better integrated the impact of both the Conflict Centre and the Open Societies Directorate will be stymied from the beginning.

The promise that the thematic priority of open societies will be ‘characterised by effective governance and resilience at home’ signals a generational shift we’ve seen in recent years in the ways in an increasing number of NGOs and politicians in global north democracies have come to articulate the impact of climate change, conflict, and threats to democracy, finally recognising the extent to which these crises are felt ‘at home’, not only ‘abroad’. But the ‘whole-of-government approach to protecting democracy in the UK’ must be just that, recognising that a good governance agenda – whether here in the UK or in fragile states – requires an understanding of grievance and marginalisation that assesses who is included and who is excluded from democratic processes and trust-building activities. (Who does introducing voter ID hit hardest?) And if the Government is serious about narrowing the conceptual and practical disconnect between its domestic and foreign policies it must learn to prize consistency over political interests. (Does the UK champion international law or undermine it?) It will be important to watch what it means for the FCDO and the UK’s domestically facing departments as this commitment to more closely link domestic and international action is implemented.

This commitment to build resilience at home and abroad, and the changes in thinking around modern conflict will necessarily come together in the creation of a cross-government Situation Centre in the Cabinet Office, intended to ‘anticipate and respond to crises’. This has the potential to centre prevention-thinking in the heart of government. Knowing what to look for, how to analyse the information and how to ‘raise the alarm’ are crucial steps for successful early warning and early action. Let’s hope this new Situation Centre includes a much needed early warning system, capable of monitoring and analysing threats to national and global security. The absence of an internal prevention analysis system, incorporating indicators of grievance, trust, and resilience, and capable of reporting on real-time trends of exclusion and violence (and other threats) has inhibited UK thinking and policy but the IR promises to address these gaps.

Perhaps the big bump in funds for the intelligence services could facilitate a more integrated relationship between MI5, MI6 and UK prevention thinking at home and abroad? Whoever undertakes the work, the current analysis gap the Situation and Conflict Centres have the potential to bridge require human expertise and bureaucratic coordination rather than big data, statistical modelling. The good news is that doesn’t require big budgets

Overall there is a lot to welcome. The dominant threads of resilience and prevention promise a genuine shift from the prevailing policy. Emphasis on building trusted governance, government capabilities, social cohesion, and resilience while confronting marginalisation and grievances signals a new logic is informing the new approach.

That is not to say that there are not gaps that will need to be addressed. Colleagues in the development sector will not be reassured by what was published this week. The biggest tension in UK foreign policy between values and trade was left unaddressed and unresolved. The paper sets out a siloed approach that contradicts its fundamental vision of an integrated international policy.

The paragraphs on China are some of the weakest in the whole document. Acknowledging that the UK has responded ‘to China’s human rights violations in Xinjiang through measures to ensure that British organisations are neither complicit in nor profiting from them’, while simultaneously committing to pursuing a state-level economic relationship that would risk the UK Government becoming complicit in or profiting from CCP atrocities undermines what is strongest about the new vision for the UK in the world.

How can the UK ‘continue to pursue a positive trade and investment relationship with China, while ensuring our national security and values are protected’? It is difficult to see how HMG ‘will not hesitate to stand up for our values’ while also committing to pursuing a trade deal. It’s a fundamental hypocrisy that will need to be interrogated. China is difficult for the UK and there are disagreement within government as well as in the Conservative party as to how to navigate the relationship. As Paul Goodman wrote in Conservative Home some weeks ago, HMG needs a strategy on China, a strategy on modern mass atrocities, and needs to understand how and when the two come together.[5]

The UK deserves an international policy capable of predicting and preventing crises as well as responding to them, fit to meet challenges it cannot yet foresee as well as those it can. If properly built out, this new vision has the potential to establish a prevention-first policy mindset as well as policy coherence across currently highly diffused agendas. I have long argued that prevention – of atrocities and of all global threats – is a matter of both national security and national interest for all States, and therefore requires state-level as well as multilateral commitment: the outcomes of the IR suggest just such a pivot in how the UK will prepare for, predict, prevent, and respond to threats. But it will require radical shifts in thinking, hiring, and coordination within the bureaucracy of government.

As COVID-19’s economic and political consequences deepen, climate events become more common, and identity politics worsen, widespread and systematic identity-based violence, including mass atrocities, will become increasingly frequent. The same nexus will drive large-scale population movements, which will continue to drive exclusionary populism in developed and developing democracies. The relevance of this complex threat nexus, as emblematic of international policy, will become increasingly evident to changing electorates. The outcomes of the Integrated Review and the changes brought by the FCDO merger to the Government architecture indicate a commitment to embed the capabilities and systems to meet this projected increase in identity-based violence and mass atrocities but there is a long way to go.

The new approach to conflict and resilience has the potential to be transformative not just for UK policy but in the reform of how likeminded states approach the drivers and propellants of violence. Of today’s major and emerging crises, the vast majority – including Syria, Yemen, Libya, Myanmar, South Sudan, Democratic Republic of Congo, Cameroon, Venezuela, and Xinjiang – are driven, at least in part, by the deliberate violent targeting of civilian groups by political elites. Systematic or widespread discrimination against people because of their race, ethnicity, religion, gender, sexuality, political affiliation, age, disability or class has not become a challenge of the past but a common phenomenon of our modern world. Identity-based violence occurs in some form or another in all societies and as such, its prevention is something needed everywhere all of the time. The IR now promises that better understanding of where this violence comes from and how the UK and its networks can contribute to its prevention will be fully integrated across the composite parts of government.

The coming weeks and months will therefore be critical and I hope that it will see the Government, finally, opening up again after a period of exceptionally closed civil society relations to ensure the full breadth of expertise is able to help shape this new prevention-first era of UK international policy.

Dr Kate Ferguson is a foreign policy expert driving a new approach to preventing identity-based violence in the UK and internationally. In 2014 she co-founded Protection Approaches where she is Co-Executive Director and which works with communities, civil society and governments to transform how identity-based violence is understood and prevented. In 2017 Protection Approaches established and now convenes the UK Atrocity Prevention Working Group, a network of some 25 NGOs, research institutions and experts. Kate is Chair of Policy at the European Centre for the Responsibility to Protect and Honorary Research Fellow at the University of East Anglia. Her book Architectures of Violence: The Command Structures of Modern Atrocities will be published by Hurst and Oxford University Press later this year. She tweets @WordsAreDeeds.

[1] Protection Approaches and United Nations Association – UK: Written evidence to Foreign Affairs Select Committee (INR0087), https://committees.parliament.uk/writtenevidence/10640/html/; Dr Kate Ferguson, Putting atrocity prevention at the heart of British foreign policy, FPC, September 2020, https://fpc.org.uk/putting-atrocity-prevention-at-the-heart-of-british-foreign-policy/

[2] Foreign Affairs Committee, A brave new Britain? The future of the UK’s international policy, Fourth Report of Session 2019-21, House of Commons, October 2020, https://committees.parliament.uk/publications/3133/documents/40215/default/; Protection Approaches, Submission to the Integrated Review of UK international policy, August 2020, https://protectionapproaches.org/news/f/submission-to-the-integrated-review-of-uk-international-policy

[3] Foreign Affairs Committee, Global Britain: The Responsibility to Protect and Humanitarian Intervention, House of Commons, September 2018, https://publications.parliament.uk/pa/cm201719/cmselect/cmfaff/1719/171902.htm

[4] Catherine Philp, Ignore human rights and strike trade deals, Dominic Raab told officials, The Times, March 2021, https://www.thetimes.co.uk/article/ignore-human-rights-and-strike-trade-deals-dominic-raab-told-officials-w2l8rm5rc

[5] Paul Goodman, Who’s in charge of the Government’s clattering China train? It’s heading for a crash., Conservative Home, February 2021, https://www.conservativehome.com/thetorydiary/2021/02/whos-in-charge-of-the-governments-clattering-china-train-its-heading-for-a-crash.html

Topics

Conflict Resolution and Security

Good Governance and Institutional Reform

Human Rights

International Development

International Relations and Geopolitics

Regions

Europe

United Kingdom

Building on the Integrated Review

Article by Adam Hug

March 16, 2021

The publication of the long awaited Integrated Review of Security, Defence, Development and Foreign Policy, entitled ‘Global Britain in a competitive age’, should finally help give greater clarity to the UK’s foreign policy and global strategy after the dislocation of the pandemic, organisational restructuring and budget cuts. This very initial response to a 112 page document released a few hours ago does not seek to capture the full complexity of a review that will shape the UK’s policy for years to come. However, it seeks to briefly address some of the key themes, particularly those that were addressed by the Foreign Policy Centre’s Finding Britain’s role in a changing world programme in 2020.[1]

There is much to welcome in the text of the Integrated Review (IR). Whether you agree or not with the priorities the Government has chosen, it is very helpful to have them articulated through the IR’s formal statement of what it sees as ‘Our interests and our values’, the articulation of the Prime Minister’s ‘vision for the UK in 2030’ and the four priorities of the ‘Strategic Framework’, between them it gives a consolidated list of the objectives the UK is seeking to pursue, which can help anchor future policy.[2]

The IR recognises that the UK’s departure from the EU necessitates a swifter moving, more agile approach to its international action. However, it rightly states that this depends on being able to retain ‘a consistent level of international influence, maintaining the soft and hard power capabilities required to support this’ and that this needs ‘new ways to cooperate through creative diplomacy and multilateralism’ as well as developing an increased competitive edge.

The Prime Minister’s vision of the UK being ‘a problem-solving and burden-sharing nation with a global perspective’ is a both a welcome recommitment to this longstanding principle but also a declaration of a notable policy shift. What is clear is that the IR envisages a revised approach to multilateralism that is less focused on post-Cold War institutions (though NATO is mentioned multiple times) and the ‘rules based international system’, but that seeks to respond to a more fragmented and contested world order by being more proactive and adaptive. This approach carries both high risks and high rewards as it is imperative that the UK does still meet its commitment to ‘do more to reinforce parts of the international architecture that are under threat’ (i.e. not leaving existing structures to be dominated by revisionist powers such as China and Russia) while executing its pivot into increased global leadership in regulatory and norm setting institutions, particularly in the technology and data space (and on Space!).

It will be essential that a long-term view is taken when assessing what the UK wants to achieve through multilateral systems to avoid perceptions of opportunism and to build trust amongst traditional allies in such forums who recognise the enduring importance of having rules based systems for middle powers, and who may still hold reservations over the UK’s intentions in the wake of Brexit. The UK Government may not be sentimental about multilateralism but many of its partners are more so, not least the Biden administration’s rhetorical commitment to rebuilding traditional alliances (though in practice both recognise the need for urgent institutional reform).

The IR rightly addresses the central role of what it calls ‘Systemic Competition’, with a recognition of the challenges of rising authoritarianism creates for the cause of liberal democracy and the stability of existing institutions. The review hardens the UK’s formal posture towards both China and Russia, while recognising that without the ability to retain some space for dialogue, particularly with the former, there will be little prospect of meaningfully addressing global challenges such as climate change. In relation to Russia, the recommitment to the central importance of the Euro-Atlantic region to the UK is welcome to show European partners that despite Brexit the UK still has a lot to offer and that it is still ‘a European country’ albeit one ‘with global interests’. The second strand of the IR’s Strategic Framework, entitled ‘Shaping the open international order of the future’, should help shape the priorities and assist in the UK’s response to this moral and strategic challenge, most notably through the first goal under this strategic priority, which ‘is to support open societies and defend human rights’ as part of the UK’s stated commitment to be ‘a force for good’.

The addition of the term ‘sovereignty’ to the IR’s statement of values and interests clearly has echoes of the Brexit debates and will be seen in that light by many. However, it is also being used to reframe the Government’s focus on building domestic legitimacy and accountability for its policies, creating a through line between the national and international in its language on the importance of democracy. The international perceptions of such as statement will need to be managed carefully to prevent the UK from being seen as aligning itself with illiberal powers that use sovereignty rhetoric to ignore international rules and human rights standards. This sovereignty framing helps shape the language contained in the ‘Strengthening security and defence at home and overseas’ section on the resilience of the UK’s democracy. Much of the language around ‘protecting democracy in the UK, supporting a democratic system that is fair, secure and transparent’ is welcome. However, it contains within it a deeply troubling confirmation that the ‘work programme will include: introducing voter ID at polling stations’. Attempts to mirror US style voter suppression techniques would not only create a threat to the UK’s democratic legitimacy and detract from the other important steps outlined here on disinformation and other issues, it also risks undermining the UK’s ability to promote strengthening electoral systems and access to democratic rights around the world.

The IR rightly recognises the UK’s fundamental strengths as a cultural leader, which it dubs as being a ‘Soft Power Super Power’. It also has helpfully shown a greater focus on trade (and its integration with foreign policy and national strategy) than might have been envisaged at the start of the consultation process, nonetheless there is a missed opportunity to make clear the role trade policy can play in encouraging the UK’s support for open societies and incentivising human rights in addition to the Government’s focus in this area on open economies. Tackling illicit finance, as well as serious and organised crime, is also a welcome component of the IR’s approach, with the commitment to bring in new Magnitsky sanctions focused on corruption as well as a recognition of the need to tackle money laundering facilitated by the UK.

So while there are a number of areas of concern in the document that fall beyond the remit of the FPC’s ‘Finding Britain’s role in a changing world’ project, such as the proposals to increase the UK’s nuclear stockpiles, the overall balance of the text is a positive one that can help shape government policy going forwards. However, it is a review of significant scope and one that will only achieve its goals, particularly the objective of being truly integrated, if it is able to be effectively implemented.

Central to that implementation challenge is the level of resource available to deliver its objectives and manage the process of change. Much has already rightly been said about the Government’s decision to cut UK aid spending from 0.7% to 0.5% of a falling national income.[3] The impact of this is being seen in the public debate over the cuts to UK assistance in Yemen, the future of VSO (Voluntary Service Overseas) and other longstanding UK priorities. There is understandable concern, particularly within the development sector, about the shift away from having discrete aid and development priorities and commitments to the UK’s aid spending being more instrumentalised to achieve integrated policy goals. More debate will take place over the coming weeks and months as the reality of some of the shifts in geographical and policy priorities outlined in the IR begin to align with the scale of the budget reductions to significantly reduce the capacity of the UK and its partners in areas of previous strength. For example, on the day of launch, openDemocracy reported that the FCDO’s Open Societies and Human Rights Directorate was facing a 80% budget cut and the National Crime Agency’s ODA funded work on anti-corruption was also to be significantly cut.[4] Such practical pressures clearly do not align with the strategic vision outlined in the IR. This capacity crunch is brought into even more stark relief by the Government’s new commitment to an ‘Indo-Pacific tilt’, seeking to rebuild its presence East of Suez across the full spectrum of government activity.[5]

The IR is clearly a strategy document designed to drive culture change across Whitehall and, as recommended in the FPC’s research, the Government says that it is looking to beef up mechanisms to ensure its implementation. These include ‘a new Performance and Planning Framework and is establishing an Evaluation Taskforce’ as well as departmental ‘Outcome Delivery Plans, against which ministers will receive regular performance reports’. The Integrated Review itself is conspicuously light on detailed policy commitments. The Government has argued that this is by design, allowing the review to be more flexible and adaptive over time, ‘a living document’ in official parlance. However, this reduces the number of measurable objectives against which government performance can be measured, potentially undermining the Government’s stated objective of using the process to build public trust and legitimacy amongst a domestic audience. More thought should be given towards how information from the performance and planning framework and top line information from each department’s Outcome Delivery Plans can be made available to the public and relevant stakeholders to ensure they are able to hold the Government to account on its commitments.

Image by FCO under (CC).

[1] This comprised five publications and a number of events that sought to inform the public debate around the Integrated Review, https://fpc.org.uk/programmes/finding-britains-role-in-the-world/. The views expressed here represent the personal views of FPC Director Adam Hug based on the ‘Finding Britain’s role in changing world’ research in 2020.

[2] There may still be some benefit in combining these three strands in the IR document into one integrated list. FPC, The principles for Global Britain, September 2020, https://fpc.org.uk/publications/the-principles-for-global-britain/

[3] Addressed in the FPC’s project in 2020.

[4] Peter Geoghegan, UK government plans 80% cuts to world-leading anti-corruption work, openDemocracy, March 2021, https://www.opendemocracy.net/en/opendemocracyuk/uk-government-plans-80-cuts-to-world-leading-anti-corruption-work/

[5] The cost and benefits of such a tilt are addressed in the FPC previous work.

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The UK’s new corruption sanctions regime – Can it help end the UK’s role as a global money laundering centre and what role will journalists play?

Article by Dr Susan Hawley

March 10, 2021

The UK’s new corruption sanctions regime – Can it help end the UK’s role as a global money laundering centre and what role will journalists play?

This spring, the UK’s Foreign Secretary is set to announce a new stand-alone corruption sanctions regime which will give the Government power to impose visa bans and asset freezes on corrupt officials and their related entities.[1]

This regime will complement the Global Human Rights (Magnitsky) Sanctions regime introduced last summer, which currently lists 68 individuals. These range from those implicated in the murder of Sergei Magnitsky, a lawyer and tax advisor who exposed corruption in Russia, and the murder of Saudi Arabian journalist Jamal Khashoggi, to the former President of The Gambia, Yahya Jammeh and his wife, and the current President of Belarus. At the same time, the UK has rolled over 27 ‘geographic’ or country specific regimes, some of them introduced on human rights’ grounds, from the European Union sanctions regime.[2] These allow it to impose sanctions on individuals and entities in countries including Myanmar, Zimbabwe, Sudan, Lebanon, Democratic Republic of Congo, Syria, Guinea, and Venezuela among others.[3]

The new corruption sanctions regime will bring the UK more in line with its US and Canadian counterpart ‘Magnitsky’ regimes, which both include corruption as a grounds for imposing visa bans and asset freezes. It will also put pressure on the EU whose new global human rights sanctions regime introduced in December 2020 does not.[4]

Major opportunity, real challenges

The introduction of corruption as a grounds for sanctions in the UK is a significant opportunity in the fight against kleptocracy and dirty money globally for various reasons:

The UK has long been a magnet for dirty money. An effective regime could help shut corrupt actors out of the UK and deprive them of the ability to enjoy their stolen wealth;
Given the challenges that face UK law enforcement, including the length of time it takes, to bring criminal and civil enforcement action against corrupt wealth in the UK, corruption sanctions could offer a swift and powerful way of sending a strong message that corrupt actors cannot act with impunity;
Corruption sanctions will be “given effect” in the British Overseas Territories and Crown Dependencies.[5] How robustly this will happen remains to be seen but this could have a major impact on the access that kleptocrats have to global financial services through these jurisdictions, which have featured heavily in all major money laundering scandals;[6]
The UK will be able to act in concert on corruption sanctions with the US, Canada and other allies developing similar regimes, adding to the global impact of these sanctions; and
It will signal that the current UK government is seeking to maintain a global leadership role in the fight against corruption, as part of its proposed “force for good” agenda.[7]

At the same time, it is important to be realistic about how much impact the regime will have. The UK is at a vulnerable stage in economic terms as it seeks to negotiate new trade deals around the world. Realpolitik means that there is a danger that the corruption sanctions regime may be skewed towards ‘weaker partners’ or countries where the UK has little economic or political interest. At worst, it may be applied primarily against those with no connection to the UK, leaving the sanctions purely symbolic in value. Meanwhile, the expected significant cuts in the UK’s Overseas Development Assistance (ODA) budget may well reduce the UK’s standing and leverage in countries[8] where it wishes to impose sanctions, thus undermining their effectiveness.

At the same time, the UK regime has significantly more legal safeguards built in for those being sanctioned than the US regime. Given the significant amounts of money that kleptocrats have at their disposal to defend their assets and reputations and the difficulties of proving corruption, ‘designations’ to the corruption regime may be heavily contested. This could make the Government risk averse in who it chooses to put on the list.

And finally, the sanctions regime in the UK is significantly less well funded and staffed than the US regime, meaning less capacity in the civil service to process potential designations, and less law enforcement capacity to enforce violations. This could result in relatively few designations for corruption. Additionally, as law enforcement already faces serious resource constraints, which may well be further exacerbated by cuts to the Overseas Development Aid budget that funds international corruption work, this could result sanctions being poorly enforced reducing their effectiveness.

Significance for journalists

Given their role in investigating and exposing corruption, the introduction of the regime is a major opportunity for journalists to achieve real impact with those investigations. Working in collaboration with UK and international NGOs, there is genuine opportunity here for journalists to contribute their evidence on corruption to get corrupt actors sanctioned in the UK.

Journalists will also play a key role in communicating news about sanction designations in local contexts. Coverage of when and why corruption sanctions have been imposed increases pressure for action to be taken domestically against corrupt actors and those who enable their corruption.

And finally, there may be opportunities for the sanctions regime to be used more effectively, or even extended, to protect journalists targeted for their corruption investigations and media freedom. The February 2020 report by a High Level Panel of Legal Experts on Media Freedom convened by the UK and Canadian Governments urged governments to use sanctions against those who murder or imprison journalists and restrict freedom of the media.[9] The UK’s current global human rights sanctions regime expressly prioritises media freedom, and those who commit human rights abuses against civil society, journalists and whistleblowers.[10] Those sanctioned, particularly on geographical sanctions lists, include officials and entities who have engaged in intimidation and violence against journalists, including, for example, judges in Belarus who have made politically motivated rulings against journalists, as well as those who have engaged in state propaganda.

However, there is certainly scope for the UK’s sanctions regime to go further and make clear, as the High Level Panel recommended, that arbitrary detention of journalists is an explicit ground for sanctions. And it would send a powerful message if the Foreign Secretary emphasises, when he announces the new corruption regime, that those who seek to intimidate, harass, and imprison journalists and civil society activists who expose corruption will face a serious risk of being sanctioned too.

Dr Susan Hawley is the Executive Director of Spotlight on Corruption. She is an anti-corruption specialist who has worked on anti-corruption issues in the UK for nearly two decades. She has expertise in policy and research in UK anti-corruption enforcement. Previously Susan was a founder and Policy Director of Corruption Watch UK, where she led the work on monitoring court trials, tracking UK enforcement and pushing for greater court transparency.

[1] Lisa Nandy, Topical Questions, FCDO – in House of Commons on 2^nd March 2021, TheyWorkForYou, March 2021, https://www.theyworkforyou.com/debates/?id=2021-03-02b.111.1&s=sanctions#g111.6

[2] Global Legal Monitor, European Union: Global Human Rights Sanctions Regime Enters into Force, Library of Congress, January 2021, https://www.loc.gov/law/foreign-news/article/european-union-global-human-rights-sanctions-regime-enters-into-force/

[3] FCDO, Collection – UK sanctions regimes, Part of Brexit, Gov.uk, January 2020, https://www.gov.uk/government/collections/uk-sanctions-regimes-under-the-sanctions-act

[4] Council of the EU, EU adopts a global human rights sanctions regime, December 2020, https://www.consilium.europa.eu/en/press/press-releases/2020/12/07/eu-adopts-a-global-human-rights-sanctions-regime/

[5] FCO & FCDO, Guidance – UK sanctions, Part of Brexit, Gov.uk, August 2019, https://www.gov.uk/guidance/uk-sanctions

[6] Transparency International UK, The Cost of Secrecy, December 2018, https://www.transparency.org.uk/publications/cost-of-secrecy/

[7] FCO and The Rt Hon Dominic Raab MP, Global Britain is leading the world as a force for good: article by Dominic Raab, Part of Brexit, Gov.uk, September 2019, https://www.gov.uk/government/speeches/global-britain-is-leading-the-world-as-a-force-for-good-article-by-dominic-raab

[8] Peter Geoghegan, UK government accused of ‘grotesque betrayal’ as full foreign aid cuts revealed, Open Democracy, 5^th March 2021, https://www.opendemocracy.net/en/opendemocracyuk/uk-government-accused-of-grotesque-betrayal-as-full-foreign-aid-cuts-revealed/

[9] International Bar Association, New report urges nations to use targeted sanctions to protect journalists, February 2020, https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=77561bf1-ef89-4df1-97e5-549f5929ddb3

[10] FCO & FCDO, Policy Paper – Global Human Rights Sanctions: consideration of designations, Gov.uk, July 2020, https://www.gov.uk/government/publications/global-human-rights-sanctions-factors-in-designating-people-involved-in-human-rights-violations/global-human-rights-sanctions-consideration-of-targets

This article was produced as part of the Unsafe for Scrutiny project, which is kindly funded by the Justice for Journalists Foundation.

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Investigative journalism

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United Kingdom

Retreating Rights – Kyrgyzstan: Executive Summary

Article by Adam Hug

March 1, 2021

Retreating Rights – Kyrgyzstan: Executive Summary

Kyrgyzstan has just experienced another period of rapid and chaotic change, the third time the country has overthrown an incumbent President in the last 15 years. This publication shows how the roots of the problem run deep. It explores how a culture of corruption and impunity have been at the heart of Kyrgyzstan’s institutional failings, problems that have sometimes been overlooked or downplayed because of the comparison to challenges elsewhere in Central Asia, but that were ruthlessly exposed by the COVID-19 pandemic.

The publication tries to explain the recent emergence of the new President Sadyr Japarov in the unrest of October 2020 and what it might mean for the future of Kyrgyzstan. An instinctive anti-elite populist with a powerful personal narrative and a past reputation for economic nationalism Japarov is undertaking a rapid consolidation of power, including through controversial constitutional reform.

Liberal minded civil society has been under increasing pressure throughout the last decade. They have faced successive governments increasingly seeking to regulate and pressure them and a rising tide of nationalism that has seen hatred against civil society activists expressed on the streets and online, particularly due to the weaponisation of work on women’s and LGBTQ rights. The publication proposes a root and branch rethink of donor initiatives in Kyrgyzstan to take stock of the situation and come again with new ways to help, including the need for greater flexibility to respond to local issues, opportunities for new ideas and organisations to be supported, and a renewed focus on governance, transparency and accountability.

Magnitsky sanctions and global anti-corruption measures can be used to respond to the ways corrupt elites have stashed their earnings abroad and they can also be used to seek redress where justice is unlikely to be served in Kyrgyzstan, such as in the tragic case of Azimjan Askarov. There is scope to better condition potential trade, aid and investment incentives to human rights benchmarks. The publication suggests areas for further amendment in the drafting of Kyrgyzstan’s new constitution and calls for more action from social media companies to protect activists and journalists who are subject to harassment.

The international community should be under no illusions about the scale of the challenges Kyrgyzstan faces. It should take swift action to prevent further backsliding on rights and freedoms, while finding new ways to help resolve Kyrgyzstan’s systemic problems.

Recommendations for the Government of Kyrgyzstan, international institutions and Western donors:

Ensure a rigorous focus on issues of corruption, hatred and impunity;
Undertake a systemic review of international donor funded projects in Kyrgyzstan including budget support, the use of consultancies and working with NGOs. It should look at both objectives and implementation, based on evidence and widespread engagement;
Find ways to empower fresh thinking and new voices, while giving partners the space and resources to adapt to local priorities;
Encourage the Japarov Government to develop a new National Human Rights Action Plan;
Increase human rights and governance conditionality in order to unlock stalled EU and UK partnership agreements, debt relief, further government related aid and new investment;
Deploy Magnitsky Sanctions and anti-corruption mechanisms more widely on Kyrgyzstan;
Expand Kyrgyz language moderation on social media and strengthen redress mechanisms;
Push for further amendments to the draft constitution to protect NGOs, trade unions, free speech and minority rights, and avoid increasing the power of the Prosecutor General; and
Explore new mechanisms for civic consultation, learning from local practices in Kyrgyzstan, consultative bodies in other developing countries and the use of Citizens Assemblies.

Image by Sludge G under (CC).

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Civil Society

Covid-19

Democracy and Elections

Good Governance and Institutional Reform

Human Rights

International Development

International Relations and Geopolitics

Regions

Former Soviet Union

Central Asia

Kyrgyzstan

Human rights of people living with HIV in Tajikistan

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Crackdowns on investigative journalism in Russia versus the lack of crackdown on corruption in the UK

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Is the US pulling ahead in the global fight against corruption and what does this mean for investigative journalists?

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A response to the Integrated Review

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Building on the Integrated Review

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The UK’s new corruption sanctions regime – Can it help end the UK’s role as a global money laundering centre and what role will journalists play?

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Retreating Rights – Kyrgyzstan: Executive Summary

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