Archives for March 2018

ICE Officials to End Obama-Era Policy Protecting Pregnant Women From Detention

March 30, 2018 by Madeline Henshaw-Greene Leave a Comment

On Thursday, March 29, U.S. officials from Immigration and Customs Enforcement (ICE) announced that the agency was withdrawing an Obama-era policy preventing pregnant women from being detained, unless in the case of mandatory detention or other “extraordinary circumstances”. Officials were quick to emphasize that they were only ending “‘the presumption of release for all pregnant detainees’”, and that cases for pregnant illegal immigrants would continue to be handled on a case-by-case basis. But there is no longer a guarantee that pregnancy would be sufficient to set a detained individual free. This new shift in policy comes as a result of President Trump’s executive order of January 2017 on Enhancing Public Safety in the Interior of the United States, which called for immigration officers to crack down on detaining and deporting any and all illegal immigrants in the country.

Both immigration and human rights activists have expressed concern that this will lead to an increase in the amount of detained pregnant women, despite the agency’s promises to evaluate cases on an individual basis. Philip Miller, a senior executive at ICE, has stated that since the policy was implemented in December he is unaware of an increase in pregnant detainees. He added that there were currently around 35 pregnant women in ICE detention centers, all for reasons of mandatory detention under the law. Furthermore, the agency has promised not to detain women in their third trimester except for “‘extraordinary circumstances’”.

Although ICE has repeatedly ensured that it provides prenatal care and “‘remote access’” to all pregnant detainees, many activists insist that the process of detention for a pregnant woman, particularly if the pregnancy occurred from rape, can be traumatizing. Katie Shepherd from the American Immigration Council expressed concern that “‘detention of this particularly vulnerable population has been linked to serious health implications to the mother and unborn child’”. Other advocate groups have complained that women who had been raped or those who experienced high-risk pregnancies had been harmed as a result of the lack of adequate care at ICE facilities, in some cases to the point of miscarriage. These complaints were in most cases filed before the policy change, and conditions will likely worsen as a result of the Trump administration’s overall approach to immigration.

For more on this:

Maria Sacchetti, Trump administration ends automatic release from immigration detention for pregnant women, https://www.washingtonpost.com/local/immigration/trump-administration-ends-automatic-release-from-detention-for-pregnant-women/2018/03/29/8b6b1bc0-3365-11e8-8abc-22a366b72f2d_story.html?utm_term=.7f8ecd4c86d6

Abigail Abrams, Ice Will Now Detain Pregnant Women Because of President Trump’s Executive Order, http://time.com/5221737/ice-detain-pregnant-immigrants-donald-trump/

U.S. Immigration and Customs Enforcement, FAQs: Identification and Monitoring of Pregnant Detainees, https://www.ice.gov/faqs-identification-and-monitoring-pregnant-detainees

Advertising Opportunities with the IELR Blog

March 29, 2018 by Zarine Kharazian Leave a Comment

Since its inception in late 2016, the IELR Blog has provided supplemental analysis on
the premier developments in both the substantive and procedural aspects of
international enforcement law. Read by practitioners, academics, and politicians, the
IELR and its companion blog serve as a valuable guide to the difficult and dynamic
field of international law.

Over the second half of 2017, the blog increased its readership over five-fold, and
now averages about 12,000 total page views and 8,250 unique visitors a month.
We now offer several advertising options. Our Large Image Ad (300×250 px)
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If you or your organization is interested in advertising with the IELR Blog, please
contact the IELR’s assistant editor, Zarine Kharazian, by email at ielr@bcr-dc.com to
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U.S. Government Needs Better Control on International Arms Sales

March 24, 2018 by Bruce Zagaris Leave a Comment

On March 13, 2018, CATO published a report by A. Trevor Thrall and Caroline Dorminey entitled Risky Business: The Role of Arms Sales in U.S. Foreign Policy.

The report observes that since 2002, the U.S. has sold more than $197 billion worth of major conventional weapons and related military support to 167 countries. In just his first year in office, President Donald Trump signed arms deals at an accelerated rate, generating hundreds of billions of dollars’ worth of potential sales.

According to the report, U.S. government-to-government arms sales since 2002 reveals that the U.S. has repeatedly sold weapons to nations engaged in deadly conflicts, and to those with horrendous human rights records, under circumstances in which the U.S. has not been able to predict where the weapons would end up or how they would be used.

The report argues that economic benefits of arms ales are dubious and that their strategic utility is far more uncertain and limited than most realize. The authors persuasively argue that the U.S. should revise its arms sales policy to improve the risk assessment process, to ban sales to countries where the risk of negative consequences is too high, and to limit sales to cases in which they will directly enhance U.S. security.

The U.S. sells arms to a large number of risky customers in the world, and the U.S. sells weapons to most of them. The data shows that the U.S. does not discriminate between high- and low-risk customers. The average sales to the riskiest nations are higher than those to the least risky nations. Due to the lack of discrimination, these recipient governments have used their U.S. weapons to promote oppression, commit human rights abuses, and perpetuate bloody civil wars.

A result of the lack of discrimination in arms sale is blowback: U.S. troops and their allies have faced U.S.-made weapons in almost every military engagement since the end of the Cold War, including in Panama, Haiti, Somalia, Iraq, Afghanistan, Yemen, and Syria.

Arms sales do not just affect the recipient nation; they also affect and can destabilize the local balance of power, often causing ripple effects throughout the region.

The report recommends the U.S. should reorient its arms sales policy to ensure that sales provide strategic benefits and to avoid producing negative unintended consequences. At a practical level, arms sales must be reduced dramatically, especially to nations with high risk factors

The report made several recommendations, including that “the president should issue a new Presidential Policy Directive reorienting U.S. arms sales policy so that the new default policy is “no sale.” The only circumstances in which the United States should sell or transfer arms to another country are when three conditions are met: (1) there is a direct threat to American national security; (2) there is no other way to confront that threat other than arming another country; and (3) the United States is the only potential supplier of the necessary weapons.”

Other (Non-state-to-state arms sales) –

The latest Issue Brief from the Small Arms Survey—Dribs and Drabs: The Mechanics of Small Arms Trafficking from the United States—analyses a side of the arms trade that is less flashy, less centralized, and even more difficult to stop. It reviews the modes of transport, concealment methods, and smuggling techniques employed by arms traffickers in the U.S. The brief finds strong arms export licensing regimes are necessary but not sufficient for stopping small arms trafficking. “The illicit trade in parts and accessories for small arms is more significant than commonly assumed. Networks that traffic in firearms parts are among the most prolific and geographically expansive of the smuggling operations studied.”

The U.S. is the largest producer of small arms in the world, with more than half of the world’s producers based in the U.S. Many arms traffickers buy relatively inexpensive firearms in the U.S. and resell them on the black market abroad because the penalties are relatively light compared with the penalties for smuggling drugs – and the profit margin is high. Arms brokers bypass regulatory norms and facilitate weapons transfers from states to non-state actors and buyers who could not otherwise obtain them.

The rate of U.S. firearms flowing into Central America, particularly the northern triangle countries of Guatemala, El Salvador, and Honduras, constitutes a major regional security problem.

The United States is one of three countries that have not ratified the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (CIFTA). The Convention requires parties to criminalize the illegal manufacture, import, or export of high-powered weapons. It also provides for information exchange and cooperation on initiatives including the marking and tracing of weapons and the identification of criminal transit routes. President Bill Clinton signed CIFTA in 1997 and submitted it for ratification to the Senate, but the Senate failed to act. Twenty-nine countries in the Western Hemisphere have ratified CIFTA.

Just as importantly, the U.S. voted in favor of the United Nations’ Arms Trade Treaty (ATT) in April 2013, and it has signed, but not yet ratified the treaty. 93 states participate, including 22 Latin American and Caribbean countries participate in the treaty. The landmark Arms Trade Treaty (ATT), regulating the international trade in conventional arms – from small arms to battle tanks, combat aircraft and warships – entered into force on December 24, 2014.

Strengthening U.S. gun control and participating in CIFTA and the UN Small Arms Treaty will offset widespread regional views that the U.S. remains indifferent to its own role in exacerbating one of Latin America’s most significant challenges.

U.S. Imposes Sanctions For Russian Cyber Interference with the 2016 U.S. Elections and Malicious Cyber-Attacks

March 18, 2018 by Bruce Zagaris Leave a Comment

On March 15, 2018, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) designated five entities and 19 individuals under the Countering America’s Adversaries Through Sanctions Act (CAATSA) as well as Executive Order (E.O.) 13694, “Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities,” as amended, and codified pursuant to CAATSA.

Treasury Secretary Steven T. Mnuchin explained the new sanctions counter Russia’s continuing destabilizing activities, ranging from interference in the 2016 U.S. election to conducting destructive cyber-attacks, including the NotPetya attack, a cyber-attack attributed to the Russian military on February 15, 2018 in statements released by the White House and the British Government. Mnuchin said the cyber-attack was the most destructive and costly cyber-attack in history. The attack resulted in billions of dollars in damage across Europe, Asia, and the United States, and significantly disrupted global shipping, trade, and the production of medicines. Additionally, several hospitals in the United States were unable to create electronic records for more than a week.

Since at least March 2016, Russian government cyber actors allegedly have also targeted U.S. government entities and multiple U.S. critical infrastructure sectors, including the energy, nuclear, commercial facilities, water, aviation, and critical manufacturing sectors. Indicators of compromise, and technical details on the tactics, techniques, and procedures, are provided in the recent technical alert issued by the Department of Homeland Security and Federal Bureau of Investigation.

Administration has sanctioned more than 100 individuals and entities under our Ukraine and Russia-related sanctions authorities, including 21 individuals, nine entities, and 12 subsidiaries that are owned 50 percent or more by previously sanctioned Russian companies on January 26, 2018.

The current issue of the IELR will carry a more comprehensive article on the new sanctions.

This Week at the ICC: Rome Statute Turns 20, ICC Elects New President and Seven Judges

March 15, 2018 by Zarine Kharazian Leave a Comment

The past week has been an eventful one at the International Criminal Court (ICC). Here are some additional updates on what has been going on at the Hague tribunal, just as it gears up to celebrate the 20^th anniversary of its founding treaty, the Rome Statute:

On Friday, March 9, six new ICC judges were sworn in. The new judges are: Luz del Carmen Ibañez Carranza (Peru), Solomy Balungi Bossa (Uganda), Tomoko Akane (Japan), Reine Alapini-Gansou (Benin), Kimberly Prost (Canada) and Rosario Salvatore Aitala (Italy). Notably, five of the six are women, and two are from African countries.
On Sunday, March 11, the Court elected Nigerian Judge Chile Eboe-Osuji as its new president. He takes over the position from Argentinian Judge Silvia Fernàndez, and will serve a three-year term. Judge Robert Femr of Czech Republic and Judge Marc Perrin de Brichambaut of France were elected as the First and Second Vice Presidents, respectively. According to his bio on the ICC website, Judge Eboe-Osuju has served on the ICC for nine years. Prior to joining the ICC, he served as the Legal Advisor to the UN Commission for Human Rights and as a legal expert to Nigeria’s delegation to the ICC-ASP Special Working Group on the Definition of the Crime of Aggressio

The election of Judge Eboe-Osuju, as well as the swearing in of Judge Solomy Balungi Bossa and Judge Reine Alapini-Gansou is particularly important in the context of accusations from some of its members that the ICC is biased against Africans. The election of an African president and African judges, however, is unlikely to resolve the Court’s crisis of legitimacy on its own.

Duterte Announces Philippines Will Withdraw from the International Criminal Court

March 15, 2018 by Bruce Zagaris Leave a Comment

On March 15, 2018, Philippine President Rodrigo Duterte announced his government will withdraw the Philippines from the Rome Treaty that established the International Criminal Court.

The announcement follows approximately five weeks after the ICC opened a preliminary examination into thousands of death connected to Duterte’s violent campaign against suspected drug users and dealers. On February 7, 2018, the ICC Prosecutor announced she was opening a preliminary examination into crimes allegedly committed in this State Party since at least July 1, 2016.

Art. 127(1) of the Rome Treaty provides that a state party’s withdrawal takes effect one year after the United Nations secretary general receives written notification.

Art. 127(2) provides that a state party must continue to cooperate with the Court even after it withdraws and its withdrawal does not prejudice in any way the continued consideration by the Court of any matter that was already under consideration by the Court prior to the effective date of the withdrawal.

In practice, the announcement will give the ICC one year to complete its preliminary examination and, if confirmed, to then conduct its case.

Duterte’s statement said the decision to withdraw was due to “baseless, unprecedented and outrageous attacks ” by U.N. officials and an effort by the ICC prosecutor to obtain jurisdiction “in violation of due process and presumption of innocence.” (Emily Rauhala, Duterte pulls out of treaty of court probe, Wash. Post, Mar. 15, 2018).

The Prosecutor started her investigation as a result of submissions by bar associations and civil society in the Philippines.

The IELR will have an article on this matter.

UK Expels 23 Russian Spies in Retaliation for Poisoning Double Agent on UK Soil

March 14, 2018 by Zarine Kharazian Leave a Comment

In an address to the House of Commons on Wednesday, UK Prime Minister Theresa May announced the expulsion of 23 Russian diplomats in retaliation for the poisoning of former double agent Sergei Skripal and his daughter, Yulia, in Salisbury, England. The diplomats, who the British government has identified as undeclared intelligence officials, have been given just one week to leave the country. The expulsion would be the largest expulsion of Russian diplomats from the UK in more than 30 years.

The Skripals were discovered unconscious on a park bench, and remain hospitalized in critical condition.

In a previous address delivered on Monday, May had vehemently denounced the poisoning as a “reckless and despicable act.” She revealed that independent experts had established that the Skripals had been poisoned by a “military-grade nerve agent of a type developed by Russia.” The nerve agent was identified as belonging to a family of chemical weapons called Novochoks. The Soviet Union originally developed the Novochok agents, which are multiple times more lethal than sarin gas and notoriously difficult to detect, during the Cold War for use against NATO troops. To experts’ knowledge, however, it had never been deployed until the Salisbury incident.

Because Novochok chemical agents can so easily be traced to Russia, May stated in her address that there exist only two possible interpretations of the incident – either it constituted a “direct act by the Russian State against our country,” or the Russian government “lost control” of the nerve agent and allowed it to get into the hands of rogue actors. May primarily advanced the former interpretation, noting that the Salisbury incident occurred against “a backdrop of a well-established pattern of Russian State aggression,” a pattern which began with Russia’s annexation of Crimea.

“There is no alternative conclusion other than that the Russian State was culpable for the attempted murder of Mr Skripal and his daughter – and for threatening the lives of other British citizens in Salisbury, including Detective Sergeant Nick Bailey,” May said.

The Kremlin has repeatedly insisted that it had “no motive” to poison Sergei and Yulia Skripal, and that any action on the UK’s part will provoke “retaliatory measures.” On Wednesday, Russian Foreign Minister Sergei Lavrov denounced May’s actions as “political theater.” Russia also ignored a March 13^th midnight deadline, imposed by May, to explain how the Novochok agent got from Russia into England.

At the 87^th Council Executive Session of the Organization for the Prohibition of Chemical Weapons (OPCW), Peter Wilson, the UK’s Permanent Representative, cautioned that a less than robust response from the international community to the Salisbury incident would contribute to the erosion of international norms against chemical weapons use. “All of us in this room should be aware: if the norm against chemical weapons use continues to be eroded, if we don’t stand up to enforce the fundamental tenets of the Convention, what has happened in the United Kingdom could happen in any one of our countries,” Wilson said. “Those who have used chemical weapons cannot be immune from the consequences of their actions. We must all do all that we can to bring perpetrators of chemical weapons attacks to justice, whoever they are, and wherever they may be.”

Indonesian Officials Seize 1MDB-linked Yacht; Prepare to Hand It Over to FBI

March 13, 2018 by Zarine Kharazian Leave a Comment

Acting on a request from the FBI made in late February, Indonesian officials have seized the luxury yacht Equanimity at Benoa Harbor in Bali, Indonesia. Investigators suspect the yacht was bought with the proceeds of embezzlement from 1Malaysia Development Berhad (1MDB), a Malaysian government-owned investment company. The yacht was allegedly bought to launder money during the 1MDB scheme.

U.S. court documents reveal that Equanimity is registered in the Cayman Islands and was purchased by Malaysian businessman Jho Low. While Lo did not hold any official position in the Malaysian government, he is purported to have acted in a senior advising capacity, and to have made high-level financial decisions with regards to 1MDB.

There were reportedly 29 crew members aboard the yacht when Indonesian officials seized it. While none of the crew members have been arrested as of yet, officials have questioned them as part of the investigation.

According to documents obtained by Asian Correspondent from a DOJ spokeswoman, the DOJ filed a letter of complaint on June 15, 2017 seeking the seizure of a list of valuable assets implicated in the 1MDB probe, among them the Equanimity and the ownership rights to several blockbuster Hollywood movies, such as The Wolf of Wall Street. On June 16, a judge for the United States District Court for the Central District of California had issued a warrant of arrest “in rem” (meaning the warrant is issued against an object rather than an individual) for Equanimity. Indonesian officials later received a request on February 21 to help with executing the warrant. An Indonesian national police senior detective, Daniel Silitonga, has told press that the handing over of the yacht, valued at about $250 million USD, is “in the process of being done.”

The International Enforcement Law Reporter has covered the 1MDB scandal in depth. For more of our coverage on 1MDB, see here.

Attorney General Jeff Sessions Eliminates Requirement on Full Hearings for Asylum Seekers

March 8, 2018 by Madeline Henshaw-Greene Leave a Comment

Attorney General Jeff Sessions announced plans this week to do away with a requirement from a 2014 ruling by the Justice Department’s Board of Immigration Appeals that demands that all asylum seekers be given a full hearing in front of an immigration judge. Once this rule is eliminated, immigration judges will have the power to deny asylum to those seeking it based only upon an initial review of their petition. While Sessions and others in the Justice Department claim that this will ease the backlog of cases currently in the court system that are preventing judges from providing relief to deserving candidates, there are others who have expressed concern at the possibility of endangering thousands of people by sending them back to their native countries without giving them adequate time to explain their situation.

Getting rid of this requirement causes particular concern for asylum seekers who file their initial petitions without help from an attorney. This group represents about twenty percent of all asylum seekers and without this rule become significantly more at risk for being turned away without a chance to adequately present their case. Furthermore, despite claims this this will speed up the court system by allowing judges to reject unmerited cases more quickly, Jeremy McKinney from the American Immigration Lawyers Association points out that this will lead to increased backlog in the federal court system. This is primarily because a large portion of denied petitioners turn to the court of appeals as a last resort.

This is just another step in a series of measures that the Trump administration has attempted to take in order to reduce the number of illegal immigrants in the United States. In October 2017 the White House announced its decision to place “numeric performance standards” on federal immigration judges, which they also said was an effort to reduce the backlog of immigration cases. However this measure was an explicit effort to increase the judges’ ability to deport immigrants, an outcome that President Trump promised in the beginning of his term.

The suggested production quotas led to outcry from a number of federal judges, who insisted that these measures would negatively affect their judicial independence as well as their ability to decide these controversial, often life-and-death cases. It is clear from this previous case that the elimination of the full hearings requirement is another attempt by the Trump administration to expel as many illegal immigrants as possible, and not in order to make time for more worthy asylum seekers, as Justice Department officials claim.

For more on this:

Maria Sacchetti, Immigration judges say proposed quotas from Justice Dept. threaten independence, The Washington Post (October 12, 2017), https://www.washingtonpost.com/local/immigration/immigration-judges-say-proposed-quotas-from-justice-dept-threaten-independence/2017/10/12/3ed86992-aee1-11e7-be94-fabb0f1e9ffb_story.html?utm_term=.bfec32155fde

Antonio Olivo, Advocates say Sessions’s decision to toss rule on asylum hearings endangers thousands, The Washington Post (March 7, 2018), https://www.washingtonpost.com/local/social-issues/advocates-sessions-decision-to-toss-rule-on-asylum-hearings-endangers-thousands/2018/03/07/24b63b24-2214-11e8-94da-ebf9d112159c_story.html?utm_term=.6db1e24a8839

World Bank Office of Suspension and Debarment Publishes New Report

March 7, 2018 by Bruce Zagaris Leave a Comment

On March 6, 2018, the World Bank Office of Suspension and Debarment (OSD) announced that it has recently published its 10-Year Update on Case Data & Metrics in a new report,

Called the Suspension and Debarment: 10-Year Update on Case Data & Metrics 2007-2017: Addendum to the Second Edition (World Bank Office of Suspension and Debarment), it contains information related to the OSD’s sanctions system.

The Addendum contains a series of charts and provides a glimpse into the OSD case review process from a number of angles, and also provides information about the performance of the World Bank’s suspension and debarment system in general. The case tracking data shown reveals no detail about individual cases beyond generic identifiers such as case numbers and milestone dates.

OSD provides the first level of adjudication in the World Bank’s suspension and debarment, or “sanctions,” system. Since 2007, more than 60% of sanctions cases have been resolved on the basis of OSD’s determinations and recommendations. All appealed cases are decided by the World Bank Group Sanctions Board.

OSD works to ensure that the World Bank has an efficient, effective and fair sanctions process. This 10-Year Update furthers the World Bank’s commitment to transparency and accountability regarding its process for sanctioning firms and individuals accused of fraud and corruption in Bank-financed projects. A more detailed description of how the sanctions system operates and the role of OSD can be found in the second edition of OSD’s Report on Functions, Data and Lessons Learned, published in 2015.

This report marks the second edition of OSD’s Report on Functions, Data and Lessons Learned. The first edition was published in 2014 and included data and statistics covering OSD’s first six fiscal years of operations, through June 30, 2013.

The second edition updates these figures to include the next two fiscal years, through June 30, 2015, and includes other revisions necessary to reflect events that have occurred since the first edition’s publication. As with the first edition, the data and statistics in the second edition pertain only to sanctions cases arising from projects financed by the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA) within the World Bank Group.

The 10-Year Update provides updated data and information on the following:

Charts and metrics showcasing OSD’s caseload and the general performance of the World Bank’s sanctions system
Updated detailed breakdown of statistics (types of cases, processing times and case outcomes.

All of the proceedings from the World Bank’s Fourth Colloquium on Suspension and Debarment can be accessed. Held on September 14, 2017, the proceedings showcase recent developments in suspension and debarment systems worldwide, examining the various uses of suspension and debarment in the procurement and anti-corruption contexts.

The panelists discussed recent trends and developments in the suspension and debarment arena, both at the national and international level, and compared and contrasted a range of national suspension and debarment systems and their impact on small versus large businesses. Panelists examined the following questions, among others: How has suspension and debarment changed over the years? How are national procurement systems making use of suspension and debarment? How often is suspension and debarment being applied to individuals and small and medium enterprises, and how do their experiences differ from larger corporations? Building on themes discussed in the previous Colloquia, the Colloquium also examined suspension and debarment as it relates to the development missions of several of the multilateral development banks.

The link to the proceedings enables a person to access a video of the proceedings.