Futureproofing Human Rights Symposium: Innovative Accountability Mechanisms for Addressing Human Rights Violations Abroad – A Case Study of the UK

[Yifan Jia is a PhD candidate and visiting lecturer at the Dickson Poon School of Law at King’s College London, and a research associate at the Global Governance Centre at Geneva Graduate Institute.

John Binns is a partner at BCL Solicitors LLP. He is a specialist in proceeds of crime laws, sanctions, tax investigations, and the regulation of cannabis.]

Historically, mechanisms for holding human rights violators accountable were confined to addressing abuses occurring within a state’s own territory. However, there has been a growing effort to address human rights violations committed beyond national boundaries. In addition to focusing on extraterritorial violations by states, many countries are increasingly targeting human rights abuses perpetrated by foreign persons overseas and have established mechanisms to address these issues.

Many gross human rights violations—such as torture, slavery, and genocide—are also classified as serious crimes. As a result, mechanisms developed to combat such crimes can also serve to address serious human rights abuses. Beyond criminal prosecution, newer tools have emerged to enhance accountability for human rights violations. One such tool is non-conviction-based forfeiture, which has been adopted by numerous jurisdictions worldwide. This approach enables the forfeiture of illicit gains through civil recovery mechanisms, without the need for a criminal conviction. Another innovation is targeted sanctions, which have gained prominence as global human rights sanctions regimes have been adopted by 35 countries.

Historically, conceptualisation of how to ensure accountability for human rights violations has been state-centric, focusing on each state addressing human rights abuses in its own territory. At the same time, human rights scholars’ traditional focus on the courtroom as a primary site for seeking accountability, has entailed some developments which challenge the state-centric narrative. This includes the renewed attention for extraterritorial jurisdiction, especially over breaches of jus cogens. While this approach meaningfully challenges the state-centric narrative, it fails to properly appreciate new emerging modes of extraterritorial human rights accountability mechanisms which do not target the individual directly or may bypass courts altogether. While these developments are rarely discussed in human rights literature, their potential to hold human rights violators accountable for abuses abroad warrants greater attention. This blog post examines these innovative mechanisms, with a focus on the United Kingdom (UK) as a case study. It examines how these tools are evolving into institutionalized systems and explores how they may contribute to reconceptualizing human rights accountability.

Non-conviction-based Forfeiture

In the UK, non-conviction-based forfeiture is provided for in the Proceeds of Crime Act (POCA). Part 5 of POCA specifically targets property ‘obtained through unlawful conduct [’recoverable property’] or intended for use in unlawful conduct’ through civil proceedings. It provides mechanisms to freeze and recover such property. 

Previously, the definition of ‘unlawful conduct’ was always subject to the dual criminality test, meaning the conduct had to be unlawful both in the country where it occurred and under UK law (POCA, Part 5, Ch. 1, section 241(2)). Human rights violations such as murder, torture, and forced labor would typically fall within this scope.

With effect from 27 April 2017, however, the Criminal Finances Act 2017 amended POCA to broaden the definition of ‘unlawful conduct’ to include overseas conduct constituting or connected to gross human rights abuses or violations, even if lawful in the jurisdiction where it occurred (POCA, Part 5, Ch. 1, sections 241(2A) and 241A). Notably, the definition of ‘gross human rights abuses or violations’ is narrowly defined. It applies exclusively to cases involving torture or cruel, inhuman, or degrading treatment inflicted on whistleblowers or human rights activists by public officials or with their instigation, consent, or acquiescence (Criminal Finances Act, s13(3)). 

This limited scope reflects the provision’s origin as a response to the death of Russian lawyer Sergei Magnitsky, and hence it is commonly referred to as the ‘Magnitsky Clause’. The provision appears to be designed to address cases similar to his. Despite its potential, the Magnitsky Clause has never been invoked in practice, and there are no recorded cases in which other provisions of Part 5 of POCA have been used to confiscate the property of foreign human rights violators.

Targeted Sanctions

The UK’s approach to the use of targeted sanctions in human rights accountability is a set of provisions in the UK’s post-EU sanctions framework, established by the Sanctions and Anti-Money Laundering Act 2018 (SAMLA), and the Global Human Rights Sanctions Regulations 2020 (GHRS Regulations) which were made under SAMLA. Like the amendment to POCA, the GHRS Regulations are explicitly linked to the legacy of Sergei Magnitsky. However, unlike POCA, key decisions under the GHRS Regulations are made by Ministers rather than the courts. The sanctions measures include travel bans and asset freezes. The GHRS Regulations target activities that, if carried out by a state, would constitute violations of the most fundamental human rights, including the right to life, the right not to be subjected to torture or cruel, inhuman, or degrading treatment or punishment, and the right to freedom from slavery, servitude, or forced and compulsory labour. (GHRS Regulations, Regulation 4) As of January 2025, there are 115 individuals and 20 entities on the GHRS list. 

New Type of Accountability?

Both mechanisms deviate from traditional human rights accountability frameworks for individuals by bypassing the need for a criminal conviction. In the case of non-conviction-based forfeiture, the UK employs civil procedures, which rely on the balance of probabilities as the standard of proof (notwithstanding the need to prove, in effect, criminal offences). Importantly, these decisions pertain exclusively to property, leading some to describe this approach as ‘financial accountability’. Rather than focusing on holding human rights violators personally accountable, this framework emphasizes addressing the financial gains linked to or derived from such violations.

GHRS also include financial measures such as asset freezes. Unlike non-conviction-based forfeiture, these sanctions explicitly target human rights violators, as evidenced by the inclusion of individuals and entities—not assets—on the sanctions lists. Yet, similar to non-conviction-based forfeiture, the GHRS does not rely on a criminal conviction; indeed, even the civil standard of proof does not apply. Instead, it operates on the even lower threshold of ‘reasonable grounds to suspect’ involvement in human rights violations. (GHRS Regulations, Regulation 6) The stated objective of the GHRS is to deter and provide accountability for such acts. (GHRS Regulations, Regulation 4). If we take this kind of measure, which is applied without conviction, as an accountability mechanism, this could be distinguished as ‘accountability through politics’, as the measure is instigated by political rather than judicial authorities.

Accountability Mechanisms: A Framework 

The introduction above outlines two emerging mechanisms in the UK for addressing human rights violations. To summarize the tools available for holding perpetrators accountable for such violations committed abroad, these mechanisms can be categorized within a framework that organizes them by the severity of their outcomes (see Table 1).

Synergies Between Mechanisms  

All these mechanisms are integral components of a broader accountability ecosystem, where each approach may complement others. New tools are introduced to address gaps where previous methods may not be viable or accessible at a given moment. For instance, non-conviction-based confiscation was developed as a response to situations where a criminal conviction is not possible, such as when the perpetrators are absent from the jurisdiction.

It is clear from the table that the UK has no shortage of tools to address human rights abuses abroad. What is missing is a systematic and strategic framework for their application. Taking these two innovative mechanisms as an example, where conduct targeted by sanctions is also ‘unlawful conduct’ under Part 5 of POCA, Ministers could liaise with law enforcement to ensure the latter is considered as a route to recover its proceeds on a permanent basis (as opposed to the indefinite freeze imposed by sanctions). 

Another mechanism within the framework that could potentially facilitate human rights accountability is the Unexplained Wealth Order (UWO), introduced in 2017. Under a UWO, authorities can compel property owners to explain the origins of their assets if there is suspicion that the property is linked to criminal activities or the owner is a ‘politically exposed person’ (PEP), connected with a non-UK state outside the European Economic Area (POCA, Part 8, Ch. 2, sections 362A to 362U (England, Wales, and Northern Ireland) and Ch 3, sections 396A to 396V (Scotland)). A failure to respond to a UWO will mean that the assets can be subjected to civil recovery, with the burden of proof shifting to the asset holder.

Notably, UWOs and targeted sanctions are both triggered by ‘reasonable grounds to suspect’. However, UWOs are granted by courts as a precursor to non-conviction-based forfeiture, while sanctions are imposed by Ministers, with no ‘end game’ for the forfeiture of sanctioned assets. By adopting a joined-up approach, the UK can make civil forfeiture and sanctions mechanisms work together to provide financial accountability for human rights violations overseas.

Due Process Concerns

By observing the tools outlined in the table above, we can see that new mechanisms tend to adopt increasingly relaxed procedures, exemplified by the progressively lowering of the standard of proof (and, where UWOs are not complied with, the reversed burden). From an accountability perspective, the challenges of due process in these new mechanisms stem from the departure from individual legal accountability for human rights violations. This highlights an interesting use of accountability in these new mechanisms: while the claimed goals are to provide accountability, individual legal accountability can be absent when it comes to protecting individual rights. 

In the context of non-conviction-based forfeiture, this type of financial accountability emphasises the guilt of the property rather than the guilt of the individual. The government’s argument in court for avoiding a high standard of human rights protection for individuals in this context is that this forfeiture is not based on, nor does it function as, a finding of guilt for the property owner. 

In the context of targeted sanctions, the absence of individual legal accountability is evident, but how to understand the ‘accountability through politics’ remains unclear. The emphasis on targeted sanctions as a preventive measure, aiming at changing future behaviour, is a way to distinguish them from criminal punishment, which serves as a mechanism for individual accountability. When sanctions are used against policymakers, especially high-level government officials, they might be justified by arguing that the purpose of the sanctions is to effect policy change rather than individual change, which makes them a form of ‘political accountability’. However, as targeted sanctions increasingly extend to direct (alleged) perpetrators on the ground, including non-state actors, it becomes harder to justify the absence of individual accountability. In this context, the distinction between accountability by politics and legal accountability might be solely on the fact that courts are not involved in the decision making. Although judicial reviews may provide a potential remedy, they focus on reviewing the process of the government decision rather than the substantive merits of the decision.

The development of new accountability mechanisms may provide more opportunities to obtain accountability for human rights violations, but it is equally important to scrutinize the human rights safeguards embedded within these measures. Remedying one human rights violation must not come at the cost of introducing another method that undermines fundamental rights.