International Federation of Journalists Demands ICC Investigation into Death of Shireen Abu Akleh
Palestinian-American journalist Shireen Abu Akleh was killed by a gunshot to the head on May 11, 2022 while covering a raid being conducted by the Israeli Defense Forces (IDF) in Jenin, a Palestinian city. Because her death occurred during a live conflict between Israeli forces and Palestinian opposition, responsibility for her death has caused international controversy.
Videos shared on social media surrounding the incident in Jenin show clashes in the area beginning at 6:00am approximately 120 meters east of where Abu Akleh would later be killed before the end of the hour. IDF body cameras and Telegram videos show that the IDF was in control of areas close to where Akleh was slain but that nearby side streets remained contested. Both sides dispute whether there was active shooting within the vicinity of Abu Akleh at the time of her death.
Abu Akleh joined Al Jazeera in 1997 as one of their first field correspondents, known for her coverage of the Israeli-Palestine conflict. The New York Times and NPR described her as a “household name” in Palestine.
After her death, Al Jazeera and the Palestinian Ministry of Health reported that the IDF killed her. Israeli authorities suggested that it was the Palestinians who killed her, however, they would later amend these suggestions by stating that the evidence was inconclusive.
The United Nations Office of the High Commissioner for Human Rights (OHCRC) released a statement on May 13, 2022 calling for a “prompt, transparent” investigation into her death. In the statement, the UN also notes, “Abu Akleh’s killing is a part of a continuation of the high rate of attacks against media works, particularly Palestinian journalists.” Since 2000, over 40 Palestinian journalists have been killed and no one has since taken responsibility for any of their deaths.[1]
On April 25, the International Criminal Court (ICC) formally acknowledged receipt of a complaint filed earlier in the month by the International Federation of Journalists (IFJ) against the State of Israel. The complaint alleges systematic targeting of journalists working in Palestine and a failure to investigate killings of press members amount to war crimes. The OHCRC recommends that Abu Akleh’s killing be a part of the investigation and accountability can be derived from the ICC.
The IFJ’s complaint to the ICC alleges the systematic targeting of four Palestinian journalists killed or maimed by Israeli snipers while covering demonstrations in Gaza. Like Akleh, the four victims were wearing clearly visible “PRESS” vest at the time they were shot.[2]
International tensions sweltered on May 13th during Abu Akleh’s funeral procession when viral videos showed Israeli authorities rushing into the crowd and attacking pallbearers. President Joe Biden immediately demanded an investigation of the incident with Secretary of State Blinken condemning the Israeli police’s actions. Israeli police defended their conduct on Twitter, “On Friday, about 300 rioters arrived at Saint Joseph hospital in Jerusalem and prevented the family members from loading the coffin onto the hearse to travel to the cemetery – as had been planned and coordinated with the family.”[3]
On May 19th, Israel announced they will not be criminally investigating Abu Akleh’s killing. The Israeli Military Police Criminal Investigation Division believes an investigation that treats Israeli soldiers as suspects would be unpopular and lead to opposition in Israeli society. Israeli authorities initially pushed the blame on Palestinian men shooting down an alleyway, however third-party research cast doubt on this theory as Akleh’s position would have never been in their line of sight. Today, the going line is that there was “no suspicion” of a criminal act given that the soldiers may have thought they were firing at a Palestinian fighter. Witnesses present around Akleh during the time of her death report no shooting within her vicinity. Bullet fragments recovered from Abu Akleh’s body by the Palestinian Authority were not shared with Israel despite their request. The Palestinian Authority asserts that Israel has a long history of impunity concerning conduct of their own soldiers.[4]
The ICC jurisdiction is complementary to national criminal jurisdictions, meaning that States have the primary competence and authority to investigate and prosecute international crimes. Pursuant to Article 17 of the Rome Statute, the ICC only takes cases in which a state having primary competence and authority to investigate is unable or unwilling to prosecution.[5]
[1] Tahira Mohamedbhai, UN Rights Office Condemns Killing of Al Jazeera Journalist, JURIST, May 14, 2022.
[2] IFJ, Palestine: IFJ Teams up with leading human rights lawyers for ICC case over systematic targeting of Palestinian journalists, IFJ, November 2, 2021.
[3] Rich Calder, Israeli cops say they intervened in Shireen Abu Akleh’s Funeral due to Rioters, NY POST, May 14, 2022.
[4] Al Jazeera Staff, Israel Will not Investigate Shireen Abu Akleh’s Killing, AL JAZEERA, May 19, 2022.
[5] For a discussion of the rinciple of complementarity in the CC, see Informal expert paper: The principle of complementarity in practice (undated) chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.icc-cpi.int/sites/default/files/RelatedRecords/CR2009_02250.PDF
DOJ Brings Civil Enforcement Action to Compel Steve Wynn to Register under FARA
On May 17, 2022, the United States Department of Justice filed a civil enforcement action in the U.S. District Court for the District of Columbia, in order to force Stephen A. Wynn, the former CEO of Wynn Resorts, to register under the Foreign Agents Registration Act (FARA) as agent of the People’s Republic of China (PRC) and a senior official of the PRC’s Ministry of Public Security (MPS). The DOJ allegedly advised Wynn on three occasions to register as an agent, but he declined to do so.
The DOJ has said the complaint is the first affirmative civil lawsuit under FARA in more than 30 years, a signed of increased enforcement efforts under FARA.
The Complaint
The complaint alleges that, from at least June 2017 through at least August 2017, Wynn communicated with then-President Donald Trump and members of his administration to transmit the PRC’s request to cancel the visa of, or otherwise remove from the U.S., a Chinese businessperson who left China, was later charged with corruption by the PRC, and applied for political asylum in the U.S. Allegedly at the request of Sun Lijun, then-Vice Minister of the MPS, Wynn communicated the request directly to President Trump over dinner and telephonically. He also had multiple discussions with President Trump and senior officials at the White House and National Security Council about organizing a meeting with Sun and other PRC government officials.
During the time in which Wynn allegedly engaged in this conduct, his company owned and operated casinos in Macau, a special administrative region in the PS. According to the DOJ, Wynn acted at the request of the PRC in order to protect his business interests in Macau.[1] In 2016, shortly before engaging in the alleged lobbying, the Macau government restricted the number of gaming tables and machines that the Defendant’s casino could operate. Public reporting showed that Wynn was scheduled to renegotiate his licenses to operate casinos in Macau in 2019.[2]
The DOJ alleges it notified Wynn of the obligation to register under FARA in letters dated May 16, 2018, October 27, 2021, and April 13, 2022. However, Wynn refused to register.[3]
According to the complaint, “(i)n approximately May 2017, during a meeting coordinated by foreign national Low Taek Jho, Sun asked businessperson and former finance chair of the Republican National Committee (“RNC”) Elliot Broidy, hip-hop artist Prakazrel Michel, and businessperson Nickie Lum Davis to lobby then-President Trump and the Trump Administration to convey the PRC’s request to cancel the visa of or otherwise remove from the United States a PRC businessperson…”[4]
In approximately June 2017, Broidy, on behalf of Sun, solicited Wynn’s assistance in the lobbying effort. Wynn served as the RNC finance chair from January 2017 through January 2018 and met Broidy through that work. Broidy believed that Wynn’s RNC experience and his business dealings in the PRC and friendship with then-President Trump, would be useful in obtaining access to Trump Administration officials.[5]
Analysis
On October 20, 2020, Broidy pleaded guilty of violating FARA. One of the charges concerned the same case as the Complaint charges Wynn with lobbying.[6]
The Complaint illustrates the fact that the DOJ has strengthened its efforts to enforce FARA. Most likely, the DOJ will use the investigative evidence collected against Broidy and endeavor to obtain his cooperation in the Complaint against Wynn.
[1] Complaint, paragr. 18
[2] Id., paragr. 29.
[3] Id. paragr. 4.
[4] Id., paragr. 16.
[5] Id., paragr. 17.
[6] DOJ, Elliott Broidy Pleads Guilty for Back-Channel Lobbying Campaign to Drop 1MDB Investigation and Remove a Chinese Foreign National, Oct. 20, 2020.
DOJ Brings Civil Enforcement Action to Compel Steve Wynn to Register under FARA
On May 17, 2022, the United States Department of Justice filed a civil enforcement action in the U.S. District Court for the District of Columbia, in order to force Stephen A. Wynn, the former CEO of Wynn Resorts, to register under the Foreign Agents Registration Act (FARA) as agent of the People’s Republic of China (PRC) and a senior official of the PRC’s Ministry of Public Security (MPS). The DOJ allegedly advised Wynn on three occasions to register as an agent, but he declined to do so.
The DOJ has said the complaint is the first affirmative civil lawsuit under FARA in more than 30 years, a signed of increased enforcement efforts under FARA.
The Complaint’s Allegations
The complaint alleges that, from at least June 2017 through at least August 2017, Wynn communicated with the then-President Donald Trump and members of his administration to transmit the PRC’s request to cancel the visa or otherwise remove from the U.S. a Chinese businessperson who left in China, was later charged with corruption by the PRC, and applied for political asylum in the U.S. Allegedly at the request of Sun Lijun, then-Vice Minister of the MPS, Wynn communicated the request directly to President Trump over dinner and telephonically. He also had multiple discussions with President Trump and senior officials at the White House and National Security Council about organizing a meeting with Sun and other PRC government officials.
During the time in which Wynn allegedly engaged in this conduct, his company owned and operated casinos in Macau, a special administrative region in the PS. According to the DOJ, Wynn acted at the request of the PRC in order to protect his business interests in Macau.[1] In 2016, shortly before engaging in the alleged lobbying, the Macau government restricted the number of gaming tables and machines that the Defendant’s casino could operate. Public reporting showed that Wynn was scheduled to renegotiate his licenses to operate casinos in Macau in 2019.[2]
The DOJ alleges it notified Wynn of the obligation to register under FARA in letters dated May 16, 2018, October 27, 2021, and April 13, 2022. However, Wynn refused to register.[3]
According to the complaint, “(i)n approximately May 2017, during a meeting coordinated by foreign national Low Taek Jho, Sun asked businessperson and former finance chair of the Republican National Committee (“RNC”) Elliot Broidy, hip-hop artist Prakazrel Michel, and businessperson Nickie Lum Davis to lobby then-President Trump and the Trump Administration to convey the PRC’s request to cancel the visa of or otherwise remove from the United States a PRC businessperson…”[4]
In approximately June 2017, Broidy, on behalf of Sun, solicited Wynn’s assistance in the lobbying effort. Wynn served as the RNC finance chair from January 2017 through January 2018 and met Broidy through that work. Broidy believed that Wynn’s RNC experience and his business dealings in the PRC and friendship with then-President Trump, would be useful in obtaining access to Trump Administration officials.[5]
Analysis
On October 20, 2020, Broidy pleaded guilty of violating FARA. One of the charges concerned the same case as the Complaint charges Wynn with lobbying.[6]
The Complaint illustrates the fact that the DOJ has strengthened its efforts to enforce FARA. Most likely, the DOJ will use the investigative evidence collected against Broidy and endeavor to obtain his cooperation in the Complaint against Wynn.
The Complaint and the guilty plea of Broidy also illustrate the terrible state of enforcement cooperation between the U.S. and the PRC, since the PRC is employing lobbyists to communicate with the DOJ concerning enforcement cases. Normally, the counterparts of the DOJ do this directly with the DOJ on a regular basis.
[1] Complaint, paragr. 18
[2] Id., paragr. 29.
[3] Id. paragr. 4.
[4] Id., paragr. 16.
[5] Id., paragr. 17.
[6] DOJ, Elliott Broidy Pleads Guilty for Back-Channel Lobbying Campaign to Drop 1MDB Investigation and Remove a Chinese Foreign National, Oct. 20, 2020.
Honduran Former President to Face Trial in New York Federal Court
Today, April 22, former Honduran President Juan Orlando Hernandez (JOH) is expected to make an appearance at his first virtual court hearing tried in a federal court in New York. He is being charged with three counts: 1) conspiring to import cocaine into the United States which carries a sentence of 10 years to life in prison; 2)using and carrying machine guns and destructive devices during, and possessing machine guns and destructive devices in furtherance of, the cocaine importation conspiracy mentioned, which carries a sentence of 30 years to life in prison; and 3) conspiring to use and carry machine guns and destructive devices during, and to possess machine guns and destructive devices in furtherance of, the cocaine importation conspiracy, which carries a maximum life sentence. Sentencing will ultimately be determined by a federal district court judge considering U.S. Sentencing guidelines and other factors.[1]
In furthering the alleged cocaine trafficking conspiracy referenced all three charges, since at least 2004, JOH assisted multiple Honduran drug-trafficking organizations in receiving multi-ton shipments of cocaine from Colombia and Venezuela to later be trafficked to the United States. The DOJ indictment alleges that drug traffickers bribed JOH, who first served in the National Congress before his presidency, and other public officials in exchange for protection from investigation.
Throughout his public service career, Hernandez would abuse his office to thwart justice against his allies. This included enlisting heavily armed security to protect members of the drug trafficking conspiracy, assist in transporting and distributing cocaine shipments, interfere with drug trafficking investigations, and prevent U.S. requested extradition of suspected drug traffickers.
The DOJ indictment paints a relationship of mutual strengthening between JOH’s political career and the drug trafficking conspiracy. In 2005, during Hernandez’s first reelection campaign, he received, through Hernandez’s brother Alvarado, a $40,000 bribe from Victor Hugo Diaz Morales (AKA “El Rojo”), a drug trafficking organization leader. Returning the favor, Hernandez provided information and protection from Honduran law enforcement in transporting large quantities of U.S. bound cocaine.
During JOH’s 2009 campaign to become president of the Honduran National Congress, Diaz Morales allegedly bribed JOH $100,000 with the promise that he would appoint their favored officials to top law enforcement positions if successful. This provided the drug trafficking organizations information to assist in trafficking and about interdiction efforts of the Honduran National Police and Army.
By 2013, Hernandez would ramp up his alleged corruption efforts as he began his first run for the Honduran presidency. In that year, he would allegedly accept a $1,000,000 bribe from Sinaloa Cartel leader Guzman Loera (AKA “El Chapo”) paid through JOH’s brother Alvarado who collected the bribe armed with machine guns. In exchange, JOH allegedly coordinated with other drug trafficking organizations to provide cocaine and armed security to the Sinaloa Cartel. Pertaining to the election, JOH would employ friendly national government officials to intimidate various municipalities which were deemed insufficiently supportive of him. Agents would also bribe officials to manipulate vote counts to Hernandez’s benefit. According to the North American Congress on Latin America, the elections were “fraught with irregularities and violent intimidation, threatening to throw the embattled nation into further political disarray.”
Allegations of intimidation and irregularities would continue into JOH’s 2017 re-election campaign. The DOJ indictment alleges that he used $1.5 million in drug-trafficking proceeds to bribe politicians and election officials into supporting him in his re-election.
The cards would begin tumbling down in 2018 after JOH’s brother, Hernandez Alvarado, was charged in the Southern District of New York in connection with his participation in the cocaine-trafficking conspiracy. Alvarado was tried and convicted on October 18, 2019 and court filings produced in his trial would publicly name the former Honduran president as the defendant’s co-conspirator.
Immediately after the end of his second term, JOH was indicted by grand jury for the charges mentioned and a warrant was issued for his arrest on January 27, 2022. On February 15, 2022, Honduran law enforcement authorities arrested the former president and the Honduran Supreme Court would later affirm the extradition request on March 28, 2022.[2]
In remarks delivered on April 21, 2022, U.S. Attorney General Merrick Garland says, “Hernandez abused his position as President of Honduras from 2014 through 2022 to operate the country as a narco state. . . We alleged that Hernandez corrupted legitimate public institutions in the country – including parts of the national police, military, and national Congress.”[3]
Analysis
The indictment and extradition of the former president shows there is no impunity even for a former head of state. The developments illustrate how political winds can change: Hernandez and Trump lost elections. The Biden Administration has focused on cracking down on anti-corruption in the Northern Triangle, since corruption is seen as one of the root causes of illegal migration. The fact that Honduras so quickly extradited the former president is likely a wakeup call to other heads of state and political leaders in Central America.
[1] United States District Court Southern District of New York, United States v. Juan Orlando Hernandez, January 27, 2022. https://www.justice.gov/opa/press-release/file/1496076/download
[2] Bruce Zagaris, Honduras Supreme Court Affirms Extradition of Former President to The United States, IELR Vol. 38 Issue 4, April 8, 2022.
[3] Department of Justice, Attorney General Merrick B. Garland Delivers Remarks Announcing Charges Against Juan Orlando Hernandez, Former President of Honduras, DOJ, April 21, 2022. https://www.justice.gov/opa/speech/attorney-general-merrick-b-garland-delivers-remarks-announcing-charges-against-juan
State Department Releases 2021 Country Reports on Human Rights Practices
On April 12, 2022, the State Department’s Bureau of Democracy, Human Rights, and Labor released the 2021 Country Reports on Human Rights Practices covering internationally recognized individual, civil, political, and worker rights set forth in the Universal Declaration of Human Rights.
The abstract of the report notes a general continued democratic backsliding and incipient authoritarianism that pose a threat to human rights and democracy, specifically citing Russia’s attack on Ukraine. Highlighted nations which have been found to unjustly imprison, torture, and even murder political opponents and activists include Russia, China, North Korea, Nicaragua, and Syria. The report also documents similar abuses being carried out against peaceful protestors in Burma, Belarus, Cuba, Hong Kong, and Sudan.
More worrying is the increasing trend of transnational repression, the practice of reaching across borders to harass intimidate, or murder dissidents. One poignant example is when Belarussian government officials attempted to divert Ryannair Flight 4978 to Minsk by fabricating a bomb threat in order for Belarusian security services to arrest a dissident journalist.[1]
Human rights watchdog Freedom House released a report in February 2021 finding that transnational repression is becoming a “normal” phenomenon. Since 2014, the project compiled 608 direct physical cases of transnational repression in which 31 origin states are conducting transnational repression in 79 host countries. The spectrum of transnational repression spans digital death threats and spying to kidnapping and murder of individual dissidents or their loved ones. The report notes that most cases of transnational repression involve the cooperation of host country governments and that the normative cost of using transnational repression has gone down.[2]
Complementing the release of the report, Secretary of State Antony Blinken held a press briefing on concerning global trends in Human Rights. He begins his remarks by condemning the Russian invasion of Ukraine and its concomitant human rights abuses, “We see what this receding tide is leaving in its wake- the bodies, hands bound, left on streets; the theaters, apartment buildings reduced to rubble with civilians inside. We hear it in the testimonies of women and girls who’ve been raped and the besieged civilians starving and freezing to death.”
After rhetorically affirming the universality of human rights, Blinken emphasizes the increasing trend of political repression which has both broadened and intensified. According to the report, more than million political prisoners are being held in over 65 countries including victims in Cuba, Russia, Ethiopia, and Egypt. Blinken mentioned examples of transnational repression in cases such as Iranian intelligence agents attempting to kidnap an Iranian American journalist from her home in Brooklyn and the Assad regime threatening Syrians cooperating with German courts in prosecuting former officials for alleged atrocities.[3]
International Criminal Law and International Human Rights Law
International criminal law and international human rights law are distinct from one another, but related in several important ways. According to the International Law Commission’s (ILC) Report on Fragmentation, international human rights law aims to “protect the interests of individuals,” while international criminal law “gives legal expression to the fight against impunity.” These two aims often intersect in their goals and usage, for example, abuses of individual human rights may constitute a crime against humanity under international law.[4]
In order to fight against impunity for violating individual rights, a body of law has been directed toward codifying the relationship between the two fields. Article 21 Subsection 3 of the Rome Statute states that “the application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights.”[5] Therefore, it is not uncommon for international criminal courts and tribunals to reference human rights law jurisprudence in order to establish a broad consensus on the definitions of different crimes against humanity.
The frequent cross-referencing between the two fields means that escaping accountability through forum shopping becomes unrealistic. For example in Almonacid-Arellano et al. v. Chile, the Inter-American Court of Human Rights (IACtHR) cited the ICTY’s decision in Prosecutor v. Tadic to conclude that “a single act of murder committed as part of a widespread or systemic attack against civilians is sufficient for the configuration of a crime against humanity.” The IACtHR’s use of this precedent allowed the American Commission on Human Rights (ACHR) to examine the case lodged by petitioners against Chile for the murder of Mr. Almonacid Arellano on its merits.[6]
Potential Utility of the Country Reports
Lawyers can use the country reports sometimes to argue that an asylum applicant’s claims are justified by conditions in the home country. An attorney arguing a case before the Commission for the Control of Interpol Files may also reference the country reports to show the challenges of obtaining a fair trial, especially if the applicant is a minority against whom discrimination is common.
[1] Justice Department, Belarusian Government Officials Charged with Aircraft Piracy for Diverting Ryanair Flight 4978 to Arrest Dissident Journalist in May 2021, Department of Justice, January 20, 2022.
[2] Nate Shenkkan and Isabel Linzer, Out of Site, Not out of Reach: The Global Scale and Scope of Transnational Repression, Freedom House, February 2021.
[3] US Department of State, Secretary Antony J. Blinken on the Release of the 2021 County Reports on Human Rights Practices, State Department, April 12, 2022. https://www.state.gov/secretary-antony-j-blinken-on-the-release-of-the-2021-country-reports-on-human-rights-practices/
[4] Emily Tsui, Arenas of Interaction: The Relationship between International Criminal Law and International Human Rights Law, JIC, March 17, 2021.
[5] Rome Statute, Rome Statute of the International Criminal Court, ICC, July 17, 1998
[6] HRLibrary, Luis Alfredo Almonacid rellano et al. v. Chile, Case 12.057, Report No. 44/02, Inter-Am. C.H.R., Doc. 5 Rev. 1 at 208 (2002)., University of Minnesota Human Rights Library, October 9, 2002.
April 25th Webinar on The Fight Against Illicit Trafficking of Firearms in Latin-America and the Caribbean
Registration Link: https://americanbar.zoom.us/webinar/register/WN_tVa3TdNYT8qkWihdSaD_9A
On April 25th, 2022 at 12:00pm – 1:30pm, Bruce Zagaris will be moderating a webinar discussion on the efforts to combat illicit trafficking of firearms in Latin America and the Caribbean, focusing on the Inter-American Convention against the Illicit Manufacture of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (CIFTS), the Protocol against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components and Ammunition (Firearms Protocol), and other treaties with respect to the trafficking of firearms.
The webinar will also discuss the lawsuit pending in U.S. District Court in Massachusetts (Mexico v. Smith & Wesson) brought by the Mexican Ministry of Foreign Affairs against firearm manufacturers and distributors.
Panelists:
- Alejandro Celorio Alcantara, Legal Adviser, Ministry of Foreign Affairs of Mexico
- Pier Angelli De Luca, Specialist of the Department of Public Security, Organization of American States
- Simonetta Grassi, UNTOC’s Firearms Protocol Secretariat, UN Office of Drugs and Crime
- Sheridon Hill, Public Information Officer of the Trinidad and Tobago Police Service and formerly with OAS Inter-American Committee against Terrorism
Moderator:
- Bruce Zagaris, Berliner Corcoran & Rowe LLP; Fellow, Caribbean Policy Consortium
Organized by the ABA Criminal Justice Section’s International Committee in cooperation with the Caribbean Policy Consortium.
INTERPOL Suspends Russia’s Ability to Make Diffusion Notices Directly and Deploys Team to Moldova While Ukraine Disconnects from INTERPOL Network
The conflict in Ukraine has had significant consequences in INTERPOL. Ukraine has disconnected from the INTERPOL network due to its fear of Russia’s misuse of INTERPOL’s channels. On March 10, INTERPOL announced that the Russian National Central Bureau (NCB) can no longer send diffusions directly. On March 25, 2022, INTERPOL announced that it deployed an Operational Support Team to Moldova in response to the ongoing conflict in Ukraine.
Suspension of Russia’s Right to Send Diffusions Directly
When an INTERPOL NCB wants to send a Red Notice, the NCB sends the request for a Red Notice to the INTERPOL Secretariat. The Secretariat must vet the request to ensure that it meets with the organization’s requirements. Once a Red Notice is approved, it is posted over the INTERPOL network. Such a Red Notice enables INTERPOL members to detain an individual against whom an INTERPOL Red Notice exists. However, INTERPOL points out that a decision by a member country whether to act on a request is exclusively at the discretion of the competent authorities.
A diffusion is less formal. An INTERPOL NCB can directly send diffusions. They are less formal and the Secretariat does not vet them. Nevertheless, many NCBs still detain individuals against whom there is a diffusion.
Since March 10, INTERPOL has required the Russian NCB to send all diffusions to the General Secretariat to be checked for compliance with INTERPOL’s Rules. Only if a diffusion is found compliant will the General Secretariat then disseminate it to member countries. This procedure is in addition to the General Secretariat’s current process of reviewing all Notice requests for compliance.
To prevent any potential misuse of INTERPOL’s channels with respect to the targeting of individuals within or beyond the conflict in Ukraine, the Secretary General with the endorsement of the Executive Committee has increased supervision and monitoring measures in relation to Russia.
INTERPOL has announced that the Secretary General may take additional measures on an urgent basis if the need arises.
INTERPOL Rejects Calls to Suspend or Expel Russia
INTERPOL has issued a statement that Article 2 of its Constitution requires it to maintain police cooperation and ensure communication channels remain open. INTERPOL’s mandate does not include the issuance of sanctions or the imposition of punitive measures. Additionally, no provisions allow for the suspension or exclusion of a member country. As a result, INTERPOL rejects calls as the political level to suspend or exclude Russia from the INTERPOL network.
INTERPOL reiterates that its Constitution strictly forbids it from undertaking any intervention or activities of a political, military, religious or racial character.
On March 1, Fair Trials observed that Russia has abused INTERPOL Red Notices and Diffusions to intimidate and threaten critics overseas. Fair Trials joined Ukraine and the United Kingdom in calling for INTERPOL to revoke Russia’s membership in INTERPOL.
INTERPOL Deploys Team to Moldova
At the request of Moldova, on March 25, 2022, the INTERPOL General Secretariat deployed an Operational Support Team to Moldova. The mission is furnishing support to law enforcement and humanitarian agencies managing the large outflow of refugees entering the country from Ukraine.
The INTERPOL team will consult and cooperate with Moldova’s General Inspectorate of Police, the General Inspectorate of Border Police, and international organizations, such as the UN High Commissioner for Refugees, the UN International Children’s Emergency Fund and the International Organization for Migration in areas, such as human trafficking, migration and border management.
The INTERPOL’s mission comes within the framework of its cooperation with EU agencies EUBAM (The European Union Border Assistance Mission to Moldova and Ukraine), Europol and Frontex.
The INTERPOL team will furnish immediate field support to law enforcement and humanitarian organizations and help evaluate the situation on the ground, identifying needs in order to supply relevant training, analysis and operational support. The INTERPOL team will be based in Chisnau and different refugee camps hosting those who have recently fled Ukraine.
INTERPOL has received reports of human traffickers and smugglers waiting at various border control checkpoints to prey on vulnerable populations arriving from Ukraine. Children and unaccompanied minors are particularly vulnerable to exploitation by smugglers and traffickers.
The INTERPOL mission in Moldova is working with national authorities to identify and prevent organized criminal activity from exploiting the crisis.
Analysis
INTERPOL’s suspension of the right of Russia to directly disseminate Diffusions and dispatching a team to Moldova are actions taken in the context of the conflict. Similarly, the decision by the Ukraine NCB to disconnect from the INTERPOL network and the call for INTERPOL to expel Russia by Ukraine, the UK, and Fair Trials all reflect concerns and efforts to respond to instances of the misuse of INTERPOL by Russia and fears that the risks of remaining connected to the INTERPOL network outweigh the benefits.
INTERPOL has the challenge of trying to balance the goals of having universal membership, especially as some of its members have cut or diminished international enforcement cooperation, with the need for proper integrity, governance, and adherence to its Constitution to ensure confidence, trust and integrity in its notices and diffusions.
U.S. Government Accuses Russia of War Crimes
On March 23, 2022, Antony J. Blinken, U.S. Secretary of State accused Russia of making “indiscriminate attacks and attacks deliberately targeting civilians, as well as other atrocities. “Russia’s forces have destroyed apartment buildings, schools, hospitals, critical infrastructure, civilian vehicles, shopping centers, and ambulances, leaving thousands of innocent civilians killed or wounded.”
Statement by Antony J. Blinken
Blinken underscored that, according to the UN Office of the High Commissioner for Human Rights observed in a March 11 report, Russian forces have targeted the Mariupol maternity hospital. It also includes a strike against a Mariupol theater, clearly marked with the word for “children” in Russian in huge letters visible from the sky.
According to Blinken, Putin’s forces used these same tactics in Grozny, Chechnya, and Aleppo, Syria, where their planes bombarded cities to break the will of people.
Blinken observed that last week, both he and President Biden stated that Russian forces had committed war crimes in Ukraine. Blinken said then that deliberate targeting of civilians is a war crime. The Department of State and other U.S. government experts were documenting and assessing potential war crimes in Ukraine.
According to Blinken, the determination that members of Russia’s forces have committed war crimes is based on a careful review of available information from public and intelligence sources. Blinken said a court of law with jurisdiction over the crime is ultimately responsible for determining criminal guilt in specific cases. The U.S. government will continue to track reports of war crimes and will share information it collects with allies, partners, and international institutions and organizations, as appropriate.
Statement by Beth van Schaack
Beth van Schaack, U.S. Ambassador at-Large for Global Criminal Justice, State Department, also gave remarks and answered questions about the allegations that the Russian troops are committing war crimes.
When asked about the potential venues for prosecution, van Schaack answered that Ukraine has a General Prosecutor and a directorate for War Crimes. Some third states also will have jurisdiction. Also she noted that the chief prosecutor of the ICC has announced he is reviewing the situation.
The U.S. is reviewing all possibilities, including potentially cooperation with ICC even though the U.S. is not a party to the International Criminal Court.
It is important to document the evidence for preservation for use in future accountability proceedings. In respect to the need to document and preserve evidence of atrocities, on March 10, Karim A.A. Khan QC, announced that his Office has established a dedicated portal through which any person that may hold information relevant to the Ukraine situation can contact our investigators. He encouraged all those with relevant information to come forward and contact his Team through the news platform, which can be accessed here.
Analysis
The statements of President Biden, Secretary of State Antony Blinken, and Ambassador at-Large for Global Criminal Justice Beth van Schaack indicate that the U.S. government has prioritized accountability for atrocities. The statements are analogous to the decision by the U.S. government to pursue this strategy during the conflict in the former Yugoslavia.
Having intensive investigations for atrocities exerts pressure on Russian forces and leadership that their conduct may result in eventual indictments. Even though Russia is not a member of the ICC and is not likely to cooperate in the investigations or in surrendering any Russians who are indicted, the investigation and an indictment are punishment. An indictment means the travel of an indicted will be limited and harm to their reputation.
History shows that indictments combined with sanctions against the country in which the indictee resides, and the continuation of sanctions until a country cooperates with the ICC, often harms the political stability of the indictee, if they are political leaders. The weakening of political leaders is illustrated by events in Serbia and Sudan. It weakened Slobadan Miloŝević. He eventually lost power and was handed over to the ICC. In 2009, journalist Gojko Berić commented that “(i)f there was no Hague, Miloŝević would probably still be in power.” If nothing else, he would be the head of his party. Similarly, probably Radovan Karadžić would have continued as a member of Parliament. Ratko Madić could have continued as Chief of Staff of the Army.[1] Omar al-Bashir, the former head of state of Sudan, was weakened by the ICC indictment. Sudan’s leaders eventually arrested him and have said they will hand him to the ICC.[2] In both Serbia and Sudan, the combined pressure of sanctions and criminal investigations and ultimately indictments debilitated the standing of the indictees.
Another reason to prioritize the atrocity investigations is to win the information war and the accompanying effort to persuade international organizations to expel and/or suspend Russia and/or start their own investigations. On March 8, the OECD has suspended Russia and Belarus from participation while on March 16, the Council of Europe expelled Russia. [3] On March 4, the UN Human Rights Council agreed to establish a commission to investigate violations committed during Russia’s military attack on Ukraine.
The accumulation of statements condemning the alleged atrocities and the multiple investigations will likely make some members of the military and political leadership hesitate to continue the attacks and/or eventually voice their objections or resign. The statements about alleged atrocities will also lead to increased public attention and eventual pressure among some segments of the Russian population.
On March 9, Ukrainian Prosecutor General Iryna Venediktova has called for a “new model” of investigative efforts to tackle alleged war crimes in Ukraine, including the establishment of a special tribunal.
[1] Diane Orentlicher, Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia 164-165 (2018).
[2] Omar al-Bashir: Sudan agrees ex-president must face ICC, BBC, February 11, 2020.
[3] For additional discussion and analysis, see Michael Plachta, Council of Europe Terminates Membership of the Russian Federation, 38 Int’l Enforcement L. Rep. __ (Apr. 2022)
OECD Announces Public Consultation on Tax Transparency for Crypto-Assets
On March 22, 2022, the OECD issued a public consultation document involving a new world tax transparency framework to furnish the reporting and exchange of information with regard to crypto-assets and proposed amendments to the Common Reporting Standard (CRS) for the automatic exchange of financial account information between countries. The consultation has the goal to inform the decisions of policy makers on the potential adoption of any such framework and its related components.
A challenge to tax and financial regulators is that a person can transfer and hold crypto-assets without intervention of traditional financial intermediaries and without any central administrator being able to watch either the transactions or the crypto-asset holdings. In addition, the Crypto-Asset market has resulted in a new set of intermediaries, such as Crypto-Asset exchanges and wallet providers, which may currently only be subject to limited regulatory oversight. Crypto-Asset exchanges typically facilitate the purchase, sale, and exchange of Crypto-Assets for other Crypto-Assets or fiat currencies. As a result, individuals can exploit crypto-assets to evade international tax transparency initiatives, such as the CRS.
Crypto-Asset Reporting Framework (CARF)
As a result of the potential to circumvent tax transparency initiatives, the G20 has asked the OECD to develop a framework for the automatic exchange of information on crypto-assets (Crypto-Asset Reporting Framework or CARF). The new framework establishes mechanisms for the collection and exchange of tax-relevant information between tax administrations, with respect to persons engaging in certain transactions in crypto-assets. The framework includes crypto-assets that a person can hold and transfer in a decentralized way, without the intervention of traditional financial intermediaries, as well as asset classes utilizing similar technology that may exist in the future. The framework requires businesses that furnish services to exchange crypto-assets against other crypto-assets or fiat currencies.
Proposed CRS Amendments
In addition to the CARF, the OECD has developed proposals, as part of the first comprehensive review of the CRS, to improve the operation of the CRS, based on the experience of governments and businesses since its adoption in July 2014. The proposal broadens the scope of the CRS to cover electronic money products and the Central Bank Digital Currencies. As a result of the development of the CARF, the proposals also embrace changes to cover indirect investments in crypto-assets through Investment Entities and derivatives. Simultaneously, the proposal has new provisions to achieve an efficient interaction between the CRS and the CARF, including ways to avoid duplicative reporting. The amended CRS endeavors to strengthen the due diligence procedures and reporting outcomes in order to improve the usability of CRS information for tax administrations and limiting burdens on financial institutions.
The OECD is requesting public comments on its proposals. Interested persons should send their comments no later than April 29, 2022 by email (in Word format) to taxpublicconsultation@oecd.org. Additional information on the CARF, the amended CRS, or to comment on the public consultation draft should view the public consultation document. All written comments received will be made publicly available on the OECD website. Comments submitted in response to this invitation will be posted on the OECD website.
The OECD will hold a public consultation meeting at the end of May 2022. Speakers and other participants at the upcoming public consultation meeting will be selected from among those providing timely written comments.
Once it receives and digests the input received through the public consultation, the OECD will make final the rules and commentary to the CARF and the amended CRS. The OECD will also develop the exchange instruments and technical solutions needed to support reporting and exchanges pursuant to the CARF and the amended CRS. The OECD intends to report on the CARF and the amended CRS under the Indonesian Presidency of the G20 for its October 2022 meeting.
Analysis
The public consultation documents explains that the CARF and amended CRS responds to dynamics of the Crypto-Asset market, including both the Crypto-Assets offered, as well as the intermediaries involved. These developments pose a significant risk that recent gains in global tax transparency will be gradually eroded.
Clearly, the Crypto-Asset market and the intermediaries involved are different from the usual information providers in third-party tax reporting regimes, such as the Common Reporting Standard (CRS), to a new set of intermediaries, which only recently became subject to financial regulation and are frequently not subject to tax reporting requirements with respect to their clients. Perhaps, more importantly, the public consultation responds to the ability of individuals to hold Crypto-Assets in wallets unaffiliated with any service provider and transfer such Crypto-Assets across jurisdictions. The ability of persons to hold and transfer Crypto-Assets pose a risk that Crypto-Assets will be used for illicit activities or to evade tax obligations. The potential for persons to possess and transfer Crypto-Assets unaffiliated with any service provider has reduced tax administrations’ visibility on tax-relevant activities carried out within the sector, increasing the difficulty of verifying whether associated tax liabilities are appropriately reported and assessed.
The OECD public consultation complements the work of the J5 countries. On March 25, 2021, the Joint Chiefs of Global Tax Enforcement (J5) assembled investigators, cryptocurrency experts and data scientists in a coordinated push to track down individuals and organizations perpetrating tax crimes around the world. Without having in place an effective framework and reporting mechanisms, the J5 and other tax authorities are limited in their compliance and enforcement abilities.
The public consultation follows closely the U.S. Department of Justice announcement of its first director of National Cryptocurrency Enforcement and President Biden signing an Executive Order (titled “Ensuring Responsible Development of Digital Assets” and issued with an accompanying Fact Sheet) regarding the U.S. government’s strategy for digital assets. The Executive Order orders federal agencies to issue various reports that will set forth future U.S. policy toward digital assets, including the potential launch of a federally issue digital dollar.
Hence, the international and national compliance and enforcement framework for Crypto-assets are changing dynamically.
The current issue of the IELR will discuss in more detail the public consultation and its implications.
- « Previous Page
- 1
- 2
- 3
- 4
- 5
- …
- 47
- Next Page »