Archives for March 2021

The U.K. will return $5.8 million that an ex-Nigerian Governor allegedly stole; this comes as part of the deal between the two countries.

Ex-governor of the Delta state James Ibori, along with his associates, allegedly laundered 160 million in Euros and used the stolen money to purchase property in the U.K. and Nigeria, luxurious cars, and a jet plane. Ibori has a lengthy criminal history dating back to the early 90s. He started off stealing money from a cash register to using public funds for his personal benefit.

The law caught up to Ibori in 2012 when he was convicted by a U.K. court for money laundering, conspiracy to defraud, and forgery and sentenced to 13 years in prison. And in 2016, he was released and deported to Nigeria.

In 2016, the Nigerian and U.K. governments signed a Memorandum of Understanding (MoU), which details both countries’ commitment to anti-corruption efforts by returning “the seized proceeds of bribery or corruption in a responsible and transparent way.” And nearly four years later, on March 9, 2021, and for the first time, the two countries agreed to return the Ibori’s stolen funds and allocate them to develop public infrastructure in Nigeria.

A detailed budget plan was set to ensure all of the recovered assets would be used for the public’s benefit. According to the press release by the U.K. government, projects include “boosting support to substantial building work for the Lagos to Ibadan Expressway, the Abuja to Kano road and the second Niger Bridge.”

The Nigerian government vowed to use money with transparency and for the public’s benefit. The U.K. also stated that annual accountability reports would be made public. These reports will contain the budget plan and detailed account of how the money will be used.

The money was retrieved by the U.K.’s various law enforcement agencies, including the Metropolitan Police Service, National Crime Agency (NCA), Crown Prosecution Service (CPS), and supported by the Foreign Commonwealth and Development Office (FCDO) and Home Office.

This action set a precedent for future agreements under the MoU. Adrian Foster, the Chief Crown Prosecutor, said in a press release statement: “Corruption anywhere is corrosive and has a drastic impact on the lives of the people where money is embezzled from. Where there is international corruption carried out from England and Wales, we will robustly prosecute and deprive individuals of their ill-gotten gains.”

The return of part of the looted funds is a positive step towards asset recovery.

On March 9, 2021, the Financial Crimes Enforcement Network or FinCEN issued a notice to financial institutions informing them of (i) the new measures to the Anti-Money Laundering Act of 2020 (the AML Act) regarding the antiquities and art trade, (ii) potential criminal activity associated with art and antiquities trade (iii) and updates to the SAR filing.

New AMLA-2020 Measures

 The AMLA-2020 passed on January 1,  2021 as part of the National Defense Authorization Act. The AMLA is the first major update to the money laundering laws since the U.S. Patriot Act. The AMLA reforms the money laundering laws under the Bank Secrecy Act or BSA passed in 1970. The BSA acts as a guide on detecting and combating money laundering and on finance-related terrorism.

The recently issued notice amends the definition of financial institutions in the AMLA, under Section 6110(a), to include art and antiquities traders, thereby holding them to the same reporting standards as financial institutions under the BSA.

Generally, financial institutions file a suspicious activity report or SAR. The notice provided specific instructions for art and antiquities traders. Filers must detail how the suspicious activity ties to antiquities and art. The notice recommends filers to include: specific details on how the objects ties to the financial institution, contact information as well as any IP addresses and other identifying information on the purchasers, sellers, and any intermediaries or agents, as well as the cost of the object.

Filing SARs “in conjunction with effective implementation of their other BSA compliance requirements, is crucial to identifying and stopping money laundering and other crimes related to trader in antiquities and art,” the notice reminded.

Illicit activity in the antiquities and arts trade

Much like the drug or arms trade, art and antiquities, too, can be a source of money laundering. This type of illicit trade can is linked to international terrorism, persecution of cultural groups, and criminal networks. Crimes associated with art and antiquities vary and “may include looting or theft, the illicit excavation of archaeological items, smuggling, and the sale of stolen or counterfeit objects.”

According to a 2018 report, the antiquities trade is popular among organized crime groups and terrorist organizations. It is a multibillion-dollar industry; particularly popular in the black market and comes third to drug and arms trade.

Unlike other illicit trades, art and antiquities are sold in legally structured institutions (e.g. museums or private collectors) through the use of middlemen or dealers. Criminals still use deceptive money laundering practices to successfully obtain the payments.

A factor that contributes to antiquities laundering is unidentified and unaccounted for antiquities. Unaccounted for items can easily slip into the hands of dealers as the items in question are not consider “stolen property,” thus, the country in question cannot claim the items as “stolen.” And some criminals illegally excavate and traffic the items making it harder for origin countries to account for their antiquities.

While the illegal antiquities and arts trade has gone unregulated, the AMLA measures are a step in the right direction in combating this illicit market.  A major challenge for persons dealing in art and antiquities is that, unlike banks, they have not previously been subject to anti-money laundering and financial regulations.  Hence, they will have to undergo education and training on the AML requirements and develop and implement AML due diligence internal controls.

On February 24, 2021, a German court convicted former Syrian secret police officer Eyad al-Gharib of aiding and abetting crimes against humanity during the Syrian Civil War. The landmark decision is the first example of a national court – as opposed to the International Criminal Court – convicting a relatively high-ranking officer for war crimes committed during the now decade-long conflict in Syria.

The Principle of Universal Jurisdiction

The typical mechanism for seeking justice for such crimes is through the International Criminal Court. However, as this court is an organ of the United Nations, the UN Security Council can block efforts to bring charges against accused war criminals in that venue. In the case of the Syrian Civil War, Russia and China have consistently blocked such pushes.

This obstructionism has led frustrated international human rights groups to push for European courts to bring charges against alleged war criminals unilaterally, made possible by the doctrine of universal jurisdiction. Under this principle, any nation’s courts may prosecute offenses like crimes against humanity, genocide, and torture, even if they were committed far outside that nation’s borders. These crimes are so severe that the accused are considered hostis humani generis – enemies of all humankind.

Although most countries, including the United States, acknowledge some forms of universal jurisdiction, the principle is applied especially expansively in many European legal systems, leading human rights campaigners to focus their attention on  that continent. The large numbers of refugees flowing out of Syria and into Europe has also contributed to the intensity of the calls for European courts to pursue justice.

The Crimes of Eyad al-Gharib

Eyad al-Gharib arrived in Germany in 2018 and was arrested along with a higher-ranking secret police officer, Anwar Raslan, in February 2019. Al-Gharib subsequently admitted his involvement in the arrest of 30 protesters in 2011, in the opening stages of the Syrian conflict. The dissidents were then transported to a detention facility known as Branch 251 and were beaten en route. Al-Gharib also testified to knowing that the protesters would likely be tortured at the facility.

Raslan – whose trial will continue into the fall – was a senior officer at Branch 251, overseeing the torture of at least 4,000 detainees. In both the al-Gharib and Raslan cases, German prosecutors have argued that these individual actions constitute crimes against humanity as they were elements in the Syrian government’s systemic patterns of illegal detention and torture.

Among the key pieces of evidence in the prosecution’s case were forensic analyses of thousands of photos of corpses secreted out of Syria by a defecting police photographer, Syrian government documents, and the testimony of Syrian refugees in Germany who had been held at Branch 251.

No evidence linked al-Gharib directly to the crimes, but the judge allowed the defendant’s testimony to investigators to be admitted as evidence, despite his defense team’s objection, claiming that, at the time, he believed he was being questioned as a witness rather than a suspect. Al-Gharib was ultimately sentenced to four and a half years in prison, one year less than prosecutors had sought,nevertheless a defeat for the defense, who had argued for a full acquittal.

Future Implications

After the verdict was announced, Syrian human rights activist Anwar al-Bunni warned the Assad regime that “the time of impunity is over, and you will not find a safe place to go.” However, the optimism was not universal. Hassan Kansou of the Syria Justice and Accountability Center struck a gloomier note: “It is symbolic that they sentence one officer, and there could be others, but it won’t change anything inside Syria.”

Kansou is likely right, as the Assad government – which has regained control over most of the country – will not implicate itself in war crimes by prosecuting its own offenses. There is also no sign that Assad’s backers in Moscow and Beijing will start supporting prosecutions in the International Criminal Court. However, al-Bunni is correct to the extent that this verdict is a dark sign for accused Syrian war criminals within the reach of European national courts.

*Teddy Davis is a contributing author for the IELR blog. He is currently a senior at Vassar College.

Biden administration revokes license

On March 8, the U.S. State Department along with the Treasury Department revoked Dan Gertler’s license. Gertler is an Israeli mining businessman that is allegedly involved in public corruption in the Democratic Republic of Congo. The license revocation is a move to reverse a decision made in the final days of former-President Trump.

This decision came amid pushback from human rights activists in the U.S. and DRC and congressional lawmakers. The Biden Administration revoked his license to reaffirm its stance on anti-corruption efforts. In a press statement by the State Department, they noted that granting Gertler a license is “inconsistent with America’s strong foreign policy interests in combatting corruption around the world, specifically including U.S. efforts to counter corruption and promote stability in the Democratic Republic of the Congo.”

Gertler’s corrupt mining deals

According to the Treasury Department, Gertler made his fortune through obscure and corrupt mining deals. He had ties to former Congolese president, Joseph Kabila, which enabled him to organize these mining oil deals. Through his dealings with Kabila, Gertler was made the middleman for mining sales in Congo thereby requiring companies to go through Gertler to do business. This deal resulted in a loss of $1.36 billion in revenue from mineral sales in the DRC. For more than two decades, Gertler exported diamonds, gold, oil, cobalt, and other minerals.

The U.S.  sanctioned Gertler in late 2017 under the Global Magnitsky Human Rights Accountability Act, a law that allows the U.S. to punish business executives or government officials that violate international human rights.

Trump’s administration secretly revokes license

In 2019, he hired lobbyists with ties to Trump, including Alan Dershowitz that made it easier for him to retrieve his license. On January 15, 2021, five days from the end of the Trump Presidency,  the Department of Treasury granted him a one-year license that would unfreeze money in U.S. banks and authorized him to conduct business through the international banking system. The license revocation strips Gertler of those conditions.

According to New York Times reporting, the then-Treasury Secretary Steven Mnuchin directed officials in the Office of Foreign Asset Control to issue his license, even though some top State Department officials were unaware of this decision would have likely opposed it.

According to a New York Times article, the Treasury Department issued the license in exchange for his assistance in a U.S. national security interest, however, the nature of his aid to the U.S. was not disclosed.

On February 3, 2021, the trial of Gibril Massaquoi, also known as the “Angel Gabriel,” began in Finland. Massaquoi is accused of committing serious war crimes, including “alleged direct or indirect participation in rapes, murders, cannibalism and using child soldiers,” as a leader of the Revolutionary United Front, a rebel group in Sierra Leone involved in the Liberian Civil War. Meanwhile, the trial of Alieu Kosiah, a commander of the United Liberation Movement of Liberia for Democracy, is also underway in Switzerland. His charges include “18 murders, rape, forced recruitment of children to serve as soldiers, enslavement, looting.”

Background

In the wake of civil conflicts in Liberia and Sierra Leona, the two nations have taken different approaches in handling war criminals. In Liberia, the post-war Truth and Reconciliation Commission recommended amnesty for criminals who felt remorse for their crimes. Those who were not given amnesty were recommended for prosecution. This prosecution never came, and no Liberian war criminal has ever been convicted.

In contrast, Sierra Leone, a neighboring state facing a similar justice quandary, created a special court for the purpose of trying specific war criminals. This court tried 10 individuals and found nine guilty of crimes.

The confounding element is that despite these two different approaches, two former war criminals, one from Sierra Leone and one from Liberia, are being tried in two separate European countries, Finland and Switzerland, respectively.

Two Case Studies in Justice

In Finland,  Gibril Massaquoi, also known as the “Angel Gabriel,” began trial in early February for charges of serious war crimes, including “alleged direct or indirect participation in rapes, murders, cannibalism and using child soldiers.” While his group the Revolutionary United Front was Sierra Leonean, they committed atrocities in Liberia, all of which occurred from 1999 to 2003 during the Liberian Civil War.

Massoqoui was a witness in the UN-Backed Special Court for Sierra Leone. He was relocated to Finland in 2008 as part of Witness-protection. Prior to trial, Massoquoi had been living and working in Finland with his family for the past 10 years. Though the special court of Sierra Leone was unable to find justice for his victims, he may still held accountable for some of his crimes.

A trial in Switzerland for Alieu Kosiah, a commander of the United Liberation Movement of Liberia for Democracy, is also underway. His charges include “18 murders, rape, forced recruitment of children to serve as soldiers, enslavement, looting.” This is the first non-military court trial due to hold a war criminal accountable. Another landmark feature of the trial is that Kosiah will be relocated to Liberia for hearings.

Switzerland and Finland have both taken important actions against these two individuals alleged to have committed war crimes in Liberia. Hopefully, these latest trials will be enough to bring justice to the victims of the conflict in Liberia.