Archives for November 2018

Russian Seizure of Ukrainian Ships Raises Questions about the International Legal Status of Crimea and its Territorial Waters

November 30, 2018 by Evan Schleicher Leave a Comment

On Sunday November 25^th, three Ukrainian vessels were captured by the Russian coast guard while travelling through the Kerch Strait and several soldiers were injured in the short firefight which ensued. The strait, which lies between the Russian mainland and the disputed territory of Crimea has been a flashpoint for conflict between the two nations already, with the Kremlin notably building a bridge over the strait in a symbolic display of Russian control of the region.

Both countries have argued that the other country violated international law. Russian officials claim that the Ukrainian vessels violated their territorial waters, while Ukrainian authorities have pointed to the UN Convention on the Law of the Sea as evidence that, in fact, it is Russia who has violated international law.

The question of who violated international law ultimately comes down largely to the legal standing of Crimea. The 2014 annexation of Crimea precipitated by a revolution in Ukraine is not recognized by Ukraine, the U.S. or the vast majority of nations. However, some nations including China, North Korea and Iran have recognized it. Russia, operating under the understanding that Crimea is a Russian holding, has claimed that the vessels were in Russian “territorial sea,” which extends up to 12 nautical miles from a country’s coastline.

Looking to the 2014 referendum on the legal status of Crimea, it becomes clear that both internal and international law were not sufficiently upheld. Article 2 of the Ukrainian Constitution establishes that “Ukraine shall be a unitary state” and that the “territory of Ukraine within its present border is indivisible and inviolable.” Article 134 goes further than this, calling Crimea an “inseparable constituent part of Ukraine.” However, these articles are not enough to gauge the legality of the referendum in terms of international law, as Constitutional violations represent domestic, rather than international, matters. According to the Venice Commission’s Code of Good Practice referendums can only be held on one question, which should be answerable with a yes or a no. Further, there must be a regulatory referendum law, a neutrality of public authorities, and an absence or restraint of military forces of either side of the referendum. None of these conditions were sufficiently met by the referendum, rendering it invalid by international law. Given the unchanged legal status of Crimea with respect to international law, there is a customary claim to coastal State status which can be made by Ukraine.

It seems that, even if the Russian premise that it controls Crimea is accepted, Russian actions clearly violated customary international law and agreements in multiple ways. Principally, a 2003 bilateral agreement between Russia and the Ukraine guarantees free navigation in the sea of Azov and the strait of Kerch by state non-commercial vessels. This agreement also notes that dispute settlement must be regulated by agreement between the parties, which means that, absent a consensus on the legality of this action by Russia and Ukraine, the issue of legality must default to precedent. Russia has repeatedly violated this agreement. In July 2017, the Russian Ministry of Transport implemented an order which allows Russian authorities to deny any vessel except Russian warships access to the Sea of Azov during specified time periods.

Finally, the 1997 Treaty on Friendship, Cooperation and Partnership between Ukraine and the Russian Federation (FCN-Treaty) states that Russia and Ukraine guarantee freedom of transit across each other’s territory in accord with generally recognized norms of international law. This treaty calls to mind a central question: does customary international law support the Ukrainian or the Russian side of this dispute? If the waters are determined to be internal waters, the ICJ’s 1992 judgment in the Land, Island and Maritime Frontier Dispute can be referenced, as there was an “existing right of innocent passage” both because of “historical reasons” and “practical necessities.” The existence of multiple written agreements supporting free navigation further suggests preexisting customary freedom of transit for Russian and Ukrainian ships. The previous discussion of the legal status of Crimea makes it abundantly clear that, in the final analysis, Ukraine has the most clear and rigorous claim to customary coastal State rights in the area in which the Ukrainian ships were seized.

INTERPOL Elects South Korean President, But Concerns About Red Notice Abuse Loom

November 26, 2018 by Evan Schleicher Leave a Comment

After a snap election in Dubai, South Korean Kim Jong Yang has officially been named INTERPOL’s new president.

Multiple news sources had previously reported that Alexander Prokopchuk, a Russian who has served as the INTERPOL vice chair for Europe since 2016, was the favorite to become the next President of INTERPOL.In recent weeks, Prokopchuk’s strong bid for the presidency led many international actors, including the United States, to openly decry the misuse of INTERPOL by authoritarian regimes as a political tool. These allegations did not begin with the Russian candidate. In fact, Chinese use of the ‘red notice’system under Meng Hongwei to target political and ideological opponents led groups like Human Rights Watch to declare that the system has long been abused to support particular political agendas. Sources show that in recent years there has been a sharp increase in the number of diffusions (in which a country requests that INTERPOL issue a ‘red notice’against an individual or group) and a less significant, but still apparent, increase in the number of ‘red notices’ issued.

The use of red notices as a political tool has damaged the supposed objectivity of INTERPOL, revealing that it is, at its root, largely dominated by international realpolitik. It is very telling that the US and European leaders who campaigned against Prokopchuk emphasized the need for INTERPOL to remain neutral and independent, arguing that electing a Russian president would lead to further abuses of power. Lithuania and Ukraine both threatened to leave INTERPOL altogether if Prokopchuk were to be elected. It is even more telling that, in response, the Russians accused the U.S. and other actors of overly politicizing the issue and of smearing Prokopchuk, a seasoned professional, in the name of personal gain. What this reveals is that, reflecting common trends across international institutions, states tend to use these institutions not as a mechanism to support rule of law, but rather as another site for the contestation of power and influence in international politics.

While many see Yang’s election as an uncontroversial choice, it does little to assuage concerns about the continued misuse and abuse of INTERPOL and its mechanisms. The number of red notices has increased since last year, even as Yang has been at the helm of INTERPOL for nearly two months of this year already, suggesting that his presidency might be merely more of the same. In fact, the truly troubling part of this saga is that countries used the the snap election as an opportunity to pursue highly partisan agendas, and that, in some sense, Yang’selection represents a highly partisan victory against Russia. Beyond that, the confusion of INTERPOL during the disappearance of its former president Meng raises significant concerns about its ability to uphold global rule of law and to counter partisan efforts to misuse INTERPOL’s institutions. All in all, this election has not resolved many of the tensions within INTERPOL, and many serious questions remain.

U.S. Treasury Expands GTO to 12 Metropolitan Areas and Lowers Reporting Threshold to $300,000

November 20, 2018 by Bruce Zagaris Leave a Comment

On November 15, 2018, the U.S. Department of Treasury Financial Crimes Enforcement Network (FinCEN) announced the issuance of revised Geographic Targeting Orders (GTOs) that require U.S. title insurance companies to identify the natural persons behind shell companies used in all-cash purchases of residential real estate. The purchase amount threshold, which previously varied by city, is now set at $300,000 for each covered metropolitan area. FinCEN is also requiring that covered purchases using virtual currencies be reported.

Prior GTOs resulted in valuable data on the purchase of residential real estate by persons implicated, or allegedly involved, in various illicit enterprises including foreign corruption, organized crime,fraud, narcotics trafficking, and other violations. Reissuing the GTOs will further assist in tracking illicit funds and other criminal or illicit activity, as well as inform FinCEN’s future regulatory efforts in this sector.

The latest GTOs cover certain counties within the following major U.S. metropolitan areas: Boston; Chicago; Dallas-Fort Worth; Honolulu;Las Vegas; Los Angeles; Miami; New York City; San Antonio; San Diego; San Francisco; and Seattle.

FinCEN also realized Frequently Asked Questions. The FAQs explain that one of the four criteria that triggers a Covered Transaction, is that “(s)uch purchase is made, at least in part,using currency or a cashier’s check, a certified check, a traveler’s check, a personal check, a business check, or a money order in any form, a funds transfer, or virtual currency.” Accordingly, payment of at least part of the purchase price using one of these methods, such as virtual currency, a wire transfer, a cashier’s check (sometimes referred to as a “bank check,” “official check,” or “treasurer’s check”), a personal check, a business check, or a certified check, triggers a Covered Transaction, assuming the other criteria to trigger a GTO are met: “residential real property”; foreign beneficial owner,which means each individual who,directly or indirectly, owns 25% or more of the equity interests of the Purchaser; and a Covered Business’s “agents” refers to people or entities that are authorized by the Covered Business, usually through a contractual relationship, to act on its behalf to provide title insurance underwritten by the Covered Business (or its subsidiaries).

The U.K. already has initiated a New Beneficial Ownership Register for UK Properties owned by Overseas Companies and other Legal Entities that will go live in 2021. The British Columbia government has released regulations to create a new condo and strata assignment register, in part in response to the significant number of foreign purchases of residences, some of which appear to be connected to proceeds of crime. With the international developments and the continuing extension of the GTOs by FinCEN, pressure is building for the GTOs to become permanent.

Treasury Imposes Magnitsky Sanctions on 17 People for Alleged Role in Killing of Jamal Khashoggi

November 15, 2018 by Zarine Kharazian Leave a Comment

On Thursday, November 15, 2018,the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) announced sanctions under the Magnitsky Act against seventeen Saudi officials for their alleged role in the killing of journalist Jamal Khashoggi.

The sanctioned individuals are:

ABAHUSSAIN, Mansour Othman M;
ALARIFI, Naif Hassan S.;
ALBALAWI, Fahad Shabib A;
ALBOSTANI, Meshal Saad M;
ALHARBI, Thaar Ghaleb T;
ALHAWSAWI, Abdulaziz Mohammed M;
ALMADANI, Mustafa Mohammed M.;
ALOTAIBI, Badr Lafi M.;
ALOTAIBI, Khalid Aedh G.;
AL-OTAIBI, Mohammad;
ALQAHTANI, Saif Saad Q.;
AL-QAHTANI, Saud;
ALSEHRI, Turki Muserref M.;
ALSEHRI, Waleed Abdullah M.;
ALZAHRANI, Mohammed Saad H.;
MUTREB, Maher Abdulaziz M.; and
TUBAIGY, Salah Muhammed A.

Further identifying information on the designated individuals is available here.

“The Saudi officials we are sanctioning were involved in the abhorrent killing of Jamal Khashoggi,” Secretary of the Treasury Steven Mnuchin said in a press conference. “These individuals who targeted and brutally killed a journalist who resided and worked in the United States must face consequences for their actions. The United States continues to diligently work to ascertain all of the facts and will hold accountable each of those we find responsible in order to achieve justice for Khashoggi’s fiancée,children, and the family he leaves behind.”

The sanctions place significant burden on the designated individuals – all seventeen will be included on the SDN list. Any property or interests in property of theirs that passes through U.S. jurisdiction will be blocked. In addition, U.S. entities are prohibited from engaging in any transactions with the designated individuals, or with entities in which they possess more than a 50 percent ownership share.

Human Rights First (HRW), a global coalition of human rights and anti-corruption NGOs, expressed support for the sanctions, but underlined that the Treasury sanctions represent only a minimal first step justice and accountability for the murder of Khashoggi. “The Trump Administration made the right decision to impose sanctions on the 17 named individuals, particularly with respect to Saud Al-Qahtani, a key advisor to Crown Prince Mohammed bin Salman,” HRW SeniorVice President for Policy, Rob Berschinski, said. “That said, in failing to sanction the crown prince or members of his inner circle, or taking other actions with respect to Saudi repression at home or its activities in Yemen,the administration isn’t taking a particularly strong stand in terms of accountability.”

U.S. Sits Out Paris Cyber Accord, Along with China, Russia, and North Korea

November 15, 2018 by Zarine Kharazian Leave a Comment

The United States, along with China, Russia, and Iran, has refused to sign a new cybersecurity pact supported by over 50 countries and a host of technology industry leaders this week.

French President Emmanuel Macron introduced the initiative, called The Paris Call for Trust and Security in Cyberspace, at UNESCO’s annual Internet Governance Forum in Paris on November 12, 2018.

The Terms

The accord’s signatories agree to collaborate in order to:

Prevent and recover from cyber attacks that threaten individuals, institutions, or critical infrastructure;
Prevent activity that attempts to damage the free and fair flow of information on the Internet;
Strengthen capacity to prevent election interference by foreign adversaries through malicious cyber attacks;
Prevent theft of intellectual property, including trade secrets;
Prevent the proliferation of malicious ICT tools;
Fortify the security of digital products and services;
Encourage the adoption of “advanced cyber hygiene”for all actors;
Stop non-State actors from “hacking-back,” and
Promote international norms and confidence-building measures in cyberspace.

While the Paris Call is not legally binding, it nonetheless serves as a symbol of adherence to diplomatic norms and principles in cyberspace. In a post on Microsoft’s blog, Microsoft President and Chief Legal Officer Brad Smith praised the accord for furthering both state and non-state actors’ commitment to digital peace. “The Paris Call is an important step on the path toward digital peace, creating a stronger foundation for progress ahead,” Smith wrote. “It calls for strong commitments in support of clear principles and strong norms to protect citizens and civilian infrastructure from systemic or indiscriminate cyber attacks. Similarly, it calls for governments, tech companies and nongovernmental organizations (NGOs) to work together to protect our democracies and electoral processes from nation-state cyber threats.”

In Bad Company

The United States’ absence from the agreement is notable – most U.S. allies, including all European member states, signed on to the Paris Call. Most members of the Five Eyes signals intelligence network – the United Kingdom, New Zealand, and Canada – also signed on (Australia and the United States are the exceptions). In addition, more than 200 companies, many of them large multinationals based in the United States as well as NGOs, have also supported it. Among these non-state signatories are Microsoft, Google, Facebook, Accenture, Salesforce, MasterCard, Visa, Citigroup, Deutsche Bank, and Nestle.

By refusing to sign the Paris Call, the United States finds itself in the company of several repressive regimes, as well as states with active cyberwar programs. Russia, China, Iran, North Korea, Saudi Arabia, and Israel have yet to sign the agreement. The United States has not revealed its reason to abstain from the Call thus far, but also has not ruled out supporting it.

Over a Year after Capture, Trump Administration Frees American ISIS Suspect at the Center of Doe v. Mattis Case

November 2, 2018 by Zarine Kharazian Leave a Comment

The Trump administration has released the anonymous U.S.-Saudi dual national and alleged ISIS fighter at the heart of the Doe v. Mattis case to a third country, reported to be Bahrain, U.S. officials announced on Monday, October 29. The man’s release comes thirteen months after he was captured by Kurdish military forces in Syria, and turned over to the American military. It also brings an end to a bitter and lengthy court battle that has raised novel substantive and procedural questions about the scope of the executive’s powers in wartime.

The suspect, a “John Doe,” resided in the custody of the U.S. military in Iraq for over a year. U.S. forces initially detained him as an enemy combatant, based on his own declaration that he was an ISIL member, coupled with corroborating evidence. While Doe’s real name and identity have been kept confidential throughout the case, the New York Times identified him on October 29 as Abdulrahman Ahmad Alsheikh, after reviewing an unredacted version of an Islamic State intake form and other public records.

Initially, the American Civil Liberties Union (ACLU) filed a petition for a writ of habeas corpus on Alsheikh’s behalf in district court. The petition asked that the district court order the government to either charge Doe with a federal crime in a federal court, or to release him, sparking a lengthy court battle and appeals process that seemed headed to the Supreme Court.

At the heart of Doe v. Mattis was a key merits-based question as well as a procedural one. The merits-based question, litigated at the district level, concerned whether the president’s Article II authority and/or the 2001 and 2002 Authorizations for the Use of Military Force (AUMFs) apply to the Islamic State. The procedural question, which made its way to the DC Circuit Court of Appeals, concerned the U.S. government’s authority to forcibly transfer Doe to another country (presumed to be Saudi Arabia) while hos habeas petition remains pending.

The release of Alsheikh is the result of a confidential settlement agreement between Alheikh’s counsel from the ACLU and the Trump administration. In a blog post published on the ACLU Blog, Senior Staff Attorney Jonathan Hafetz outlined the agreement as a win for due process rights. “This case demonstrates that the president cannot take away an American’s liberty without due process, showing the continuing importance of judicial review,” Hafetz wrote. “[T]he government cannot render citizens to another country against their will — especially to places where they face further detention or risk to personal safety.”

According to the New York Times, the State Department has canceled Alsheikh’s American passport, but has not revoked his American citizenship.

See the IELR’s prior coverage on the Doe v. Mattis case here.