Holding Khashoggi’s Murderers Accountable with the Global Magnitsky Act

by Khalid Al-Jaber

Amid the fallout of the Jamal Khashoggi saga, there is growing talk of the U.S. government using the Global Magnitsky Act to sanction certain Saudi individuals connected to the journalist’s premeditated murder. As Democrats prepare to take control of the House of Representatives next year, there will be mounting pressure on the White House to act against Riyadh using this legislation that was enacted during Barack Obama’s presidency.

Passed with bipartisan support in 2012, the Magnitsky Act (formally known as the Russia and Moldova Jackson–Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012) was a response to the case of Russian lawyer Sergei Magnitsky. In 2008, Russian authorities arrested in him in connection to his role in an investigation of a $230 million Kremlin-linked tax fraud. He was beaten and later died in custody in 2009 having never been charged with a crime. The legislation prevented Russian nationals from entering the United States and prohibiting U.S. banks from dealing with them.

In 2016, the legislation expanded to become the Global Magnitsky Act, which provides the U.S. president with authority to impose sanctions and visa bans against individuals of any nationality on human rights grounds. Described as “an unprecedented human rights tool,” the law is aimed at not only holding individuals accountable for their crimes but also deterring future human rights violations. The human rights violations that the law targets include “extrajudicial killings, torture, or other gross violations of internationally recognized human rights…against individuals who seek to obtain, exercise, defend, or promote human rights and freedoms, including freedom of expression.”

For the Global Magnitsky Act to be used against specific Saudis, the White House would need to determine that a Saudi individual was (at least partially) responsible for Khashoggi’s killing within 120 days of receiving an official letter from the relevant lawmakers, which was sent on October 10. Also, the White House would need to clarify the question of which sanctions would be imposed on specific Saudi nationals. As of now, these are all unknown variables. It’s unclear how President Donald Trump will act in response to calls from American lawmakers to use this legislation against specific Saudis.

The killing of Khashoggi has created a difficult political dilemma for the Trump administration. The White House sees investing in Washington’s relationship with Riyadh as essential to achieving the administration’s top three objectives in the Middle East: countering Iran’s geopolitical rise, protecting Israel’s position in the region, and securing lucrative transactions for American entities to fuel greater economic growth and job creation at home. The White House must balance these interests in strengthening American-Saudi relations with increasingly anti-Saudi public opinion arising from the journalist’s murder. Strong criticism of the Saudi government has even come from American lawmakers like Senator Lindsey Graham who are known for their previously pro-Saudi positions.

The White House might support using the Global Magnitsky Act in response to the Saudi journalist’s killing if the administration concludes that doing so could thwart calls from lawmakers for even tougher actions against Riyadh. To be sure, these sanctions would not target the entire Saudi state, but just specific individuals, which might allow the White House to appear “tough” on Riyadh without weakening America’s alliance with Saudi Arabia. By the same token, Trump, who has an extremely close relationship with the Kingdom’s de facto ruler, Crown Prince Mohammed bin Salman (MbS), might calculate that use of the Global Magnitsky Act against Saudi nationals could harm the Washington-Riyadh relationship at the expense of vital U.S. national interests and thus refuse to use this legislation to punish Saudis connected to Khashoggi’s killing.

Even if bilateral ties are unlikely to be upended in the near to medium term, the Khashoggi affair has certainly undermined the kingdom’s relationship with Washington. If Trump refuses to impose sanctions on Saudis under the Global Magnitsky Act, future arms sales to Riyadh will generate a greater backlash from newly empowered Democrats in Congress who want to end such transactions until the Yemeni civil war is resolved. Regardless of the decision that Trump makes with respect to the Global Magnitsky Act, the Saudis must come to terms with the outrage that Khashoggi’s murder has fueled in Washington. Even if the American president has been keen to give the Saudis, especially MbS, the benefit of the doubt, prominent senators and scores of members of the House of Representatives are determined to force the White House to take actions to establish accountability for the journalist’s murder.

Of course, the Global Magnitsky Act is not the White House’s only available tool. Rather than imposing sanctions against Saudi individuals, the administration could decide to freeze, halt, or decrease American arms sales to Riyadh or apply more pressure on the kingdom to end (or at least ease) its 17-month-old siege of Qatar.

When Trump became president, human rights considerations did not drive his administration’s policies. Instead, a transactional approach to international affairs guided the new White House’s global strategies. Yet pressure from lawmakers and influential civil society organizations in the United States are forcing the White House to address Khashoggi’s murder. If the Trump administration uses the Global Magnitsky Act as part of a larger effort to hold the kingdom accountable for the killing of one of their citizens who became a Virginia resident, it would send a clear message that this administration, despite perceptions to the contrary, will use human rights violations as grounds for taking action against not only geopolitical foes such as Russia, North Korea, Iran, and Syria, but also close U.S. allies.

The Trump administration would be wise to take this step to deter not only the Saudi monarchy but governments worldwide from using their diplomatic missions in foreign countries for the extra-judicial killing or kidnapping of regime critics. The use of the Global Magnitsky Act against Saudis would mark nothing short of a watershed in international human rights law.

Khalid Al-Jaber (@Aljaberzoon) is the director of MENA Center for Research in Washington, D.C.