US Sanctions on Zimbabwe Part I: The Magnitsky Act

Introduction

On 4 March 2024, President Joe Biden issued an Executive Order which terminated the national emergency declared in Executive Order 13288 of March 2003 with respect to the actions and policies of certain members of the Government of Zimbabwe and other persons to undermine Zimbabwe’s democratic processes or institutions, and also revoked Executive Order 13391 of November 2005 which contained additional steps, as well Executive Order 13469 of July 2008 which expanded the two.

Effectively, by this termination and revocation of the three Executive Orders 13288, 13391 and 13469, the US Department of the Treasury’s Office of Foreign Assets Control (OFAC) removed the Zimbabwe Sanctions Regulations from the Code of Federal Regulations. Resultantly, over 100 Zimbabwean persons and entities blocked pursuant to the three Executive Orders were immediately removed from the OFAC Specially Designated Nationals and Blocked Persons (SDN) List. Further, travel restrictions against these persons were uplifted, and all property and interests in property blocked pursuant to these Executive Orders was immediately unblocked. However, the termination and revocation of the three Executive Orders did not affect any action taken or proceeding that was pending, or any rights or duties that matured or any penalties incurred prior.

On the same day, a statement was issued by the National Security Council Spokesperson, Adrienne Watson, on US Sanctions on Zimbabwean individuals and entities, to the effect that the United States was employing a new set of tools in Zimbabwe, including the flagship Global Magnitsky sanctions programme. The US Department of the Treasury designated 14 Zimbabwean persons and entities, pursuant to Executive Order 13818. So while over 100 Zimbabwean individuals and entities were removed from the OFAC SDN list following the termination of Executive Orders 13288, 13391 and 13469, 14 Zimbabwean individuals and entities were added pursuant to Executive Order 13818.

This article, which is Part I of a series of two articles, seeks to analyse the sanctions recently imposed by the United States on Zimbabwe under the Magnitsky Act, as well as the Executive Orders that were revoked. The second article, Part II, will consider the ZIDERA Act.

This article contends that the US Sanctions Programme against Zimbabwe is not targeted only against the 14 Zimbabwean individuals and entities listed on the OFAC SDN List through Executive Order 13818, but is targeted against the entire country. Firstly, Executive Order 13818 presents a tighter sanctioning regime than the revoked and terminated Executive Orders. Next, the US Government has retained the ZIDERA Act, which continues in effect more than two decades after it was signed to law.  Finally, that the recently terminated Executive Order 13288 was renewed annually by all US Presidents since 2004, and that Executive Orders 13391 and 13469 were issued to broaden and expand its scope, serve to buttress this contention.

Executive Order 13288

In March 2003, President George W Bush issued Executive Order 13288 titled “Blocking Property of Persons Undermining Democratic Processes or Institutions in Zimbabwe”, which designated 77 individuals, mostly government officials, in response to widespread violence in the country. The measures were aimed at addressing “the actions and policies of certain members of the Government of Zimbabwe and other persons to undermine Zimbabwe’s democratic processes or institutions, contributing to the deliberate breakdown in the rule of law in Zimbabwe, to politically motivated violence and intimidation in that country, and to political and economic instability in the southern African region”.

The effect of these measures was to block and prohibit transfer of property and property interests of the designated persons that were in the US or in the control of US persons, including their overseas branches, from being transferred, paid, exported, withdrawn, or otherwise dealt in. The sanctions also sought to block transactions or dealings within the US or by US persons in the property or interests in property of the designated persons, including but not limited to the making or receiving of any contribution of funds, goods, or services to or for the benefit of any listed person.

Executive Order 13391

In November 2005, through Executive Order 13391, President Bush broadened the designation criteria in response to “the continued actions and policies of certain persons who undermine Zimbabwe’s democratic processes and with respect to the national emergency described and declared in Executive Order 13288”. Resultantly, the property and property interests of the designated persons were blocked whether these were in the US or in the control of US persons, including their overseas branches, from being transferred, paid, exported, withdrawn, or otherwise dealt in.

Executive Order 13391 extended the list of designated persons to include those listed in the Annex, as well as any person determined by the Secretary of the Treasury, in consultation with the Secretary of State to have engaged in actions or policies to undermine Zimbabwe's democratic processes or institutions; or any person determined to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services in support of, such actions or policies of a person whose property and interests in property are blocked pursuant to this order; or any person determined to be or have been an immediate family member of a person whose property and interests in property are blocked pursuant to this order; or any entity determined to be owned or controlled by, or acting or purporting to act for or on behalf of, directly or indirectly, a person whose property and interests in property are blocked pursuant to this order. The Annex of Executive Order 13391 designated 128 individuals and 33 entities.

Executive Order 13469

In July 2008, President Bush, through Executive Order 13469, further expanded the scope of Executive Order 13288 in response to the “continued actions and policies of the Government of Zimbabwe and other persons to undermine Zimbabwe’s democratic processes or institutions, manifested most recently in the fundamentally undemocratic election held on June 27, 2008, to commit acts of violence and other human rights abuses against political opponents, and to engage in public corruption, including by misusing public authority”.

Executive Order 13469 added two new grounds for designation, namely persons determined to be responsible for, or to have participated in, human rights abuses related to political repression in Zimbabwe; or persons determined to be engaged in, or to have engaged in, activities facilitating public corruption by senior officials of the Government of Zimbabwe. The other grounds in Executive Order 13391 remained in-tact.

In the decades that followed, the US Treasury, the US State Department and all the US Presidents renewed Executive Orders 13288, 13391 and 13469 annually, and also reviewed the Zimbabwean SDNs on the OFAC list.

In December 2022, the US Treasury removed 17 Zimbabwean individuals from the SDN List, stating that these individuals were found no longer to undermine Zimbabwe’s democratic processes and institutions, or to otherwise meet the criteria for designation. However, the US Treasury designated four individuals and two entities.

In March 2023, President Biden renewed Executive Orders 13288, 13391 and 13469, on grounds that “the actions and policies of certain members of the Government of Zimbabwe and other persons to undermine Zimbabwe’s democratic processes or institutions continue to pose an unusual and extraordinary threat to the foreign policy of the US.” 

A year later, in March 2024, President Biden terminated and revoked the three Executive Orders. His reason for termination was that the declaration of a national emergency in Executive Order 13288 is no longer needed, although the US “continues to be concerned with the situation in Zimbabwe, particularly with respect to acts of violence and other human rights abuses against political opponents and with respect to public corruption, including misuse of public authority.”

Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012

In December 2012, President Barack Obama signed the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012 (Magnitsky Act) into law. Through this Act, the US government terminated Title IV of The Trade Act of 1974 to products of the Russian Federation, thereby normalising trade relations between the United States and Russia, and the United States and Moldova.

The Magnitsky Act narrated the circumstances around the death of Sergei Leonidovich Magnitsky in Matrosskaya Tishina Prison, Moscow, in November 2009. In terms of the findings in the Magnitsky Act, in July 2011, the Russian Human Rights Council announced the results of its independent investigation into the death of Sergei Magnitsky. It concluded that Sergei Magnitsky’s arrest and detention was illegal; he was denied access to justice by the courts and prosecutors of the Russian Federation; he was investigated by the same law enforcement officers whom he had accused of stealing Hermitage Fund companies and illegally obtaining a fraudulent US$230 million tax refund; he was denied necessary medical care in custody; he was beaten by 8 guards with rubber batons on the last day of his life; and the ambulance crew that was called to treat him as he was dying was deliberately kept outside of his cell for one hour and 18 minutes until he was dead. The report of the Human Rights Council also states the officials falsified their accounts of what happened to Sergei Magnitsky and, 18 months after his death, no officials had been brought to trial for his false arrest or the crime he uncovered. The impunity continued in April 2012, when Russian authorities dropped criminal charges against Larisa Litvinova, the head doctor at the prison where Magnitsky died.

In terms of the Magnitsky Act, the US President was mandated to submit to the appropriate congressional committees a list with each person whom he determined based on credible information, was responsible for the detention, abuse, or death of

Sergei Magnitsky, participated in efforts to conceal the legal liability for the detention, abuse, or death of Sergei Magnitsky, financially benefitted from the detention, abuse, or death of Sergei Magnitsky, or was involved in the criminal conspiracy uncovered by Sergei Magnitsky. The US President was also mandated to submit a list of persons responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals seeking to expose illegal activity carried out by officials of the Government of the Russian Federation; or against individuals seeking to obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections, in Russia; or persons who acted as an agent of or on behalf of the above.

In terms of the Magnitsky Act, the persons included on the lists submitted by the President became ineligible for US visas and ineligible to be admitted into the United States. All existing visas of persons on the list were revoked. In addition, the Act ordered the President to freeze and prohibit all transactions in all property and interests in property of a person on the list, if such property and interests in property are in the United States, come within the United States, or come within the possession or control of a United States person. This included all assets within the possession or control of any US financial institution.

In April 2013, the Obama administration made public a list of 18 individuals affected by the Magnitsky Act.

Executive Order 13818: Blocking the property of persons involved in serious Human Rights abuse or corruption

In December 2017, President Donald J Trump issued Executive Order 13818 under various authorities, including the Magnitsky Act. This Executive Order broadened the scope of the Magnitsky Act beyond Russia, to any country outside the United States. In the Executive Order, President Trump stated that “the prevalence and severity of human rights abuse and corruption that have their source, in whole or in substantial part, outside the United States, such as those committed or directed by persons listed in the Annex to this order, have reached such scope and gravity that they threaten the stability of international political and economic systems.” He added that “Human rights abuse and corruption undermine the values that form an essential foundation of stable, secure, and functioning societies; have devastating impacts on individuals; weaken democratic institutions; degrade the rule of law; perpetuate violent conflicts; facilitate the activities of dangerous persons; and undermine economic markets. The United States seeks to impose tangible and significant consequences on those who commit serious human rights abuse or engage in corruption, as well as to protect the financial system of the United States from abuse by these same persons.”

President Trump proceeded to declare a national emergency to deal with that threat, in terms of which the property and property interests of the persons in the Annex were to be blocked, whether these were in the US or in the control of US persons, including their overseas branches, from being transferred, paid, exported, withdrawn, or otherwise dealt in.

The Executive Order also blocked from being transferred, paid, exported, withdrawn, or otherwise dealt in, the property and property interests of any person, as determined by the Secretary of the Treasury, in consultation with the Secretary of State and the Attorney General, to be responsible for or complicit in, or to have directly or indirectly engaged in, serious human rights abuse; or any person determined to be a current or former government official, or a person acting for or on behalf of such an official, who is responsible for or complicit in, or has directly or indirectly engaged in corruption, including the misappropriation of state assets, the expropriation of private assets for personal gain, corruption related to government contracts or the extraction of natural resources, or bribery; or the transfer or the facilitation of the transfer of the proceeds of corruption. The Executive Order included any person determined to be or have been a leader or official of an entity, including any government entity, that has engaged in, or whose members have engaged in, any of the above activities during the leader’s or official’s tenure; or any person determined to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services to or in support of any of the above persons or the above activities or entities owned or controlled by the above persons. The property and property interests of these persons would be blocked from being transferred, paid, exported, withdrawn, or otherwise dealt in.

In terms of the Executive Order, the unrestricted immigrant and nonimmigrant entry into the United States of persons determined to meet one or more of the above criteria, was suspended. Such persons were banned from entry into the United States.

A total of 13 people where listed in the Annex of Executive Order 13818, from various countries, including Pakistan, Russia, DRC, Burma, The Gambia, China, Serbia, Nicaragua, Sudan, Guatemala, Uzbekistan and the Dominican Republic.

In terms of the Global Magnitsky Human Rights Accountability Act Annual Report for 2023, prepared by the Secretary of State, in consultation with the Secretary of the Treasury, pursuant to Section 1264 of the Magnitsky Act, and in accordance with Executive Order 13818, the United States took significant action under the Global Magnitsky sanctions programme. In 2023, 78 foreign persons were sanctioned over the course of the year, up from 35 persons sanctioned during the course of 2022. As of December 2023, the United States had sanctioned over 650 foreign persons (individuals and entities) pursuant to Executive Order 13818 since 2017.

The application of Executive Order 13818 to Zimbabwe

On 4 March 2024, the US Department of the Treasury designated 14 Zimbabwean persons and entities, pursuant to Executive Order 13818.

In terms of the statement, the US Government stated that it “continues to witness gross abuses of political, economic, and human rights.  The targeting of civil society and severe restrictions on political activity have stifled fundamental freedoms, while key actors, including government leaders, have siphoned off public resources for personal gains.  These illicit activities support and contribute to a global criminal network of bribery, smuggling, and money laundering that impoverish communities in Zimbabwe, southern Africa, and other parts of the world. In response to new and continuing corruption and serious human rights abuse, the United States is refocusing and elevating its efforts to hold accountable the individuals and entities that are responsible for this exploitation.”

According to the statement, “Actions to retire the previous sanctions programme and designate key actors under the Global Magnitsky sanctions programme are part of an ongoing effort to ensure we are promoting accountability for serious human rights abuse and corruption in a targeted and strategic manner.” 

The statement further added that “Sanctions on these individuals and entities do not represent sanctions on Zimbabwe or its public. The Administration reaffirms its commitment to work with the people of Zimbabwe; will continue to robustly support civil society, human rights defenders, and independent media to promote values consistent with the Zimbabwe Democracy and Economic Recovery Act of 2001; and take additional measures to hold accountable those who deny Zimbabweans the democratic freedoms and good governance they deserve.”

Essentially, according to the US National Security Council, the most appropriate “new set of tools in Zimbabwe” to meter out sanctions, was to use the Global Magnitsky sanctions programme, which was born out of the conditions under which Sergei L Magnitsky was detained, abused and died in Matrosskaya Tishina Prison, Moscow, in November 2009. These tools, one of which is Executive Order 13818, target persons who are determined to be involved in serious human rights abuse and corruption.

Analysis

It certainly is a welcome development that Executive Orders 13288, 13391 and 13469 were terminated and revoked on 4 March 2024, leading to the removal of over 100 Zimbabwean persons and entities from the OFAC SDN List. However, by deductive reasoning, it can be surmised that the US Government has no intention to end the US Sanctions Programme on Zimbabwe as seen in the use of Executive Order 13818 to place 14 Zimbabwean persons and entities on the OFAC SDN List. It is likely that the US Government will use Executive Order 13818 to increase the number of Zimbabwean persons and entities on the OFAC SDN List in future.

It is the same pattern employed over two decades ago, when the recently terminated and revoked Executive Order 13288 was first passed by President Bush in March 2003, designating 77 Zimbabwean persons. Over the years, the number of Zimbabwean persons and entities added on the OFAC SDN List increased, until their removal in March 2024. Notably, some people whose names were recently removed from that List had died in the intervening period.

Presently, the application of the Executive Order 13818 targets the 14 Zimbabwean persons and entities listed in the annex. However, the Executive Order empowers the US Secretary of the Treasury, in consultation with the US Secretary of State and the US Attorney General, to add persons determined to be responsible for or complicit in serious human rights abuse; or current or former government officials or persons determined to be engaged in corruption through various means; or persons determined to be acting for or on behalf of listed persons; or persons determined to have materially assisted or supported listed persons. These wide definitions of persons who can be determined to qualify for listing on the OFAC SDN List empower the US Secretary of the Treasury to add other Zimbabwean persons and entities to the list in future. As highlighted above, the persons listed under the Magnitsky Act, and in accordance with Executive Order 13818 stands at 650 worldwide as at December 2023, having started at 18 Russians in April 2013.

A negative inference can therefore be drawn that the US Sanctions Programme is targeted not only against the individuals listed on the OFAC SDN List, but in fact on Zimbabwe as a nation, contrary to the perennial claims by the US Government in justifying its stance on Zimbabwe.

To begin with, the President and First Lady of Zimbabwe are among the 14  persons and entities added on the OFAC SDN List on 4 March 2024.

Next, the termination and revocation of Executive Orders 13288, 13391 and 13469, by President Biden did not repeal the ZIDERA Act, meaning that Act is still in effect and applies in the Zimbabwe/ US relations to date. Part II of this article will analyse the ZIDERA Act in greater detail.

Finally, for two decades since March 2003, the US Government amended, broadened, and unrelentingly renewed, the three Executive Orders, which were revoked only in March 2024. This is a clear demonstration that the US Government intends to use all tools at its disposal, including the ZIDERA Act, to retain the US Sanctions Programme on Zimbabwe.

It should not come as a surprise when, in future, the US Secretary of the Treasury, in consultation with the US Secretary of State and the US Attorney General adds more Zimbabwean persons and entities to the OFAC SDN List through Executive Order 13818.

Conclusion

There is no doubt that the termination and revocation of Executive Orders 13288, 13391 and 13469 which led to the removal of over 100 Zimbabwean persons and entities from the OFAC SDN List was welcomed by the affected persons and entities, as their blocked property was unblocked, and travel restrictions against them uplifted. However, the retention of the ZIDERA Act as law, and the introduction of new grounds for listing in terms of Executive Order 13818, that is, serious human rights abuse or corruption, demonstrate that the US Sanctions Programme for Zimbabwe has in fact been tightened not only against the 14 Zimbabwean persons and entities listed in March 2024, but also against the country. Only when the ZIDERA Act is repealed and this sanctions regime is completely revoked and terminated against Zimbabwe, will it be said that the US Government has removed all sanctions against Zimbabwe.

Individuals & entities added on OFAC SDN List under Executive Order 13818