Will the US Congress pull the Magnitsky sanctions trigger on South Africa?

At the start of the Trump administration, select conservative interest groups are working hard to convince the chairperson and ranking member of appropriate committees in the US Congress to issue joint requests on South Africa under the Global Magnitsky Act. 

Should they prevail, then those joint requests would require the executive branch to render a determination on whether the named South African individuals and entities meet the criteria for being sanctioned for corruption and human rights violations.

This campaign appears to stem from a deep-seated belief that South African individuals and entities who were responsible for malicious activities that undermined the national security and foreign policy interests of the US government under the Biden administration should be held accountable by the new administration.

These efforts appear to be motivated by the following hypothesis: Magnitsky sanctions will cause critical node failures in those malicious actor networks. Full stop.

For campaigners, the biggest problem is that their argument revolves around a relatively unproven hypothesis. It is nothing more than expert opinion (aka an educated guess by policy wonks). It is not an evidence-based solution.

That reality makes it a very risky choice for US policymakers. The intervention might not only fail to achieve desired outcomes. It might lead to unintended consequences. That includes another breakdown in the strategic relationship. 

In spite of these risks, it would be a mistake for South African individuals and entities who would make good candidates for Magnitsky sanctions to assume that appropriate members of Congress do not have an appetite for taking such risks in South African affairs.

Key concepts

To make sense of the hypothesis that is driving this policy proposal, it is important to first have a good grasp of the key concepts related to critical network failure. These concepts might be defined as:

• Critical node: Any node that is characterised by a “high level of importance and a low level of redundancy”. 
• Critical node error: The occurrence of an event that prevents a critical node from being able to participate within its clustered system(s) of nodes. 
• Critical node failure: The occurrence of a critical node error that causes its clustered system(s) to become unstable and collapse.

Furthermore, it is important to have a basic understanding of the different kinds of social objects that can serve as critical nodes in different contexts. Examples include:

• Cyber networks: Examples include computers, servers, and datacenters; 
• Social networks: Examples include people, businesses and government agencies. 

Major hypothesis

With those conceptual matters out of the way, it is important to consider the various motivations that could lead members of Congress to opt for Magnitsky sanctions.

In this case, it appears that one of those motivations is the theoretical assumption that the application of Magnitsky sanctions will result in critical node failure(s) in malicious actor networks that undermine the national security and foreign policy interests of the US government. This follows from the following premises:

1. Magnitsky sanctions can be used to efficiently and effectively target critical nodes in malicious actor networks that act to undermine the national security and foreign policy interests of the US;
2. The application of Magnitsky sanctions to critical nodes will render those individuals and entities unable to effectively participate in the malicious actor networks;
3. The sidelining of these critical nodes will eventually result in the deterioration and collapse of the malicious actor networks.

Should this hypothesis hold, then one would expect Magnitsky sanctions to produce networks with malicious actors who are far less numerous and powerful.

Geographic characteristics

When testing the above hypothesis in the case of South Africa, one must not gloss over the geographic characteristics of the critical node failures.

This is because some of the most important nodes in the clustered systems could be located in other independent states — whether close neighbors (for example, Mozambique and Zimbabwe) or distant ones (for example, Brazil, China, Colombia, Iran, Mexico and Russia).

That makes South Africa a useful case for testing the utility of Magnitsky sanctions when it comes to breaking down multi-country clustered systems that are engaged in corruption and human rights violations. 

These clustered systems might include actors who are perceived to be malicious by the Trump administration and US Congress. Hypothetical examples include Hamas (Palestinian Territories), Hezbollah (Lebanon), Primeiro Comando da Capital (Brazil) and Zanu-PF (Zimbabwe).

Known risks

The problem with the Magnitsky sanctions campaign is not an absence of good candidates. Nor is it the politicisation of the process of selecting individuals and entities to be named. That is to be expected. Everyone knows that sanctions are a political game.

The real problem is that the hypothesis that reinforces the basic argument has never really been tested in a similar case. South Africa is just too unique of a country. It does not have good parallels in the international system.

Magnitsky sanctions are not an evidence-based policy intervention. They are simply a hypothesis-driven choice. And, that makes them a very risky proposition.

To compound matters, there are intervening variables that must be taken into consideration. The biggest of these is the agency of the named individuals and entities, as well as their domestic and foreign supporters. In the game of sanctions, the nodes can fight back – individually and as clusters.

Risk appetite

The key question then is whether the US Congress has the appetite for such risk.

A decade ago, the answer probably would have been an emphatic “no”. But much has changed in world affairs and bilateral relations since then. Remember the Lady R Incident? Or the Hamas telephone call?

For these reasons, it would be a huge mistake for South Africans and South African institutions who would be candidates for Magnitsky sanctions to jump to the conclusion that the 119th Congress does not have the appetite for Magnitsky sanction requests on South Africa.

With President Donald Trump in office, there is strong political will to push back against the Brics nations with a new sense of urgency and intensity. That alone will change the strategic calculus on South Africa for many members of Congress, thereby lowering the threshold for pulling the congressional trigger on Magnitsky sanction requests on South Africa.

Michael Walsh is a non-resident senior fellow of the Africa Programme at the Foreign Policy Research Institute.

Critical Node (Top), Critical Node Error (Middle), Critical Node Failure (Bottom)