Archives for February 2022

ICC Prosecutor Issues Statement about Developments in Ukraine and Ukraine Goes to the ICJ

February 27, 2022 by Bruce Zagaris 7 Comments

The conflict initiated by Russia in Ukraine has spouted one proceeding in an international tribunal and resulted in another monitoring the developments with an eye to starting an investigation. On February 25, 2022, the International Criminal Court Prosecutor, Karim A.A. Khan QC issued a statement on the situation in Ukraine., He said he has been “closely following recent developments in and around Ukraine with increasing concern.” On February 27, Ukraine filed an application instituting proceedings against the Russian Federation before the International Court of Justice (ICJ) concerning “a dispute . . . relating to the interpretation, application and fulfilment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide” (the “Genocide Convention”).

The International Criminal Court

Mr. Kahn reminded all sides conducting hostilities in Ukraine that on September 8, 2015, the Ukraine government accepted jurisdiction of the ICC. Hence, his Office can exercise its jurisdiction over and investigate any act of genocide, crimes against humanity or war crime committed within the territory of Ukraine since February 20, 2014.

The statement underscored that “(a)ny person who commits such crimes, including by ordering, inciting, or contributing in another manner to the commission of these crimes, may be liable to prosecution before the Court, with full respect for the principle of complementarity. It is imperative that all parties to the conduct respect their obligations under humanitarian law.”

According to Mr. Khan, his office has received multiple inquires with respect to the crime of aggression and the application of this crime to the situation. However, since neither Ukraine nor the Russian Federation are States Parties to the Rome Statute, the Court cannot exercise jurisdiction over this alleged crime in this situation.

Mr. Khan promised that his office will continue to closely monitor the Situation in Ukraine. His Office, h explained, remains fully committed to the prevention of atrocity crimes and ensuring accountability for anyone responsible for such crimes.

Mr. Khan said he intends to issue a more detailed statement regarding the Situation in Ukraine on his return from a mission in Bangladesh.

The ICC’s Preliminary Examination on the Situation in Ukraine

On December 11, 2020, the Prosecutor announced the completion of her preliminary examination of the situation in Ukraine. The Prosecutor concluded a reasonable basis exists to believe that war crimes and crimes against humanity were committed. The next step in the judicial process is to request authorization from the Pre-Trial Chamber to open an investigation into the situation in Ukraine. In the interim, the Office continues to take measures to preserve the integrity of any future investigation into the situation in Ukraine.

On April 25, 2014, the Office of the Prosecutor (OTP) announced a preliminary examination of the situation in Ukraine. On September 29, 2014,, the Prosecutor announced, based on Ukraine’s second declaration under article 12(3), the extension of the preliminary examination of the situation in Ukraine to include alleged crimes occurring after February 20, 2014. The OTP has received many communications under article 15 of the Rome Statute in relation to the “Maidan protests” as well as to events in Crimea and eastern Ukraine.

The preliminary examination initially targeted alleged crimes against humanity committed in the context of the “Maidan” protests which occurred in Kyiv and other regions of Ukraine between November 21, 2013 and February 22, 2014.

The OTP concluded a reasonable basis exists to believe that a broad range of grave conduct constituting war crimes and crimes against humanity were committed. The OTP also found that the alleged crimes identified would currently be admissible, and thus there was a reasonable basis for investigation, subject to judicial authorization.

The International Court of Justice

Ukraine’s application accuses the Russian Federation of “planning acts of genocide in Ukraine” and contends that Russia “is intentionally killing and inflicting serious injury on members of the Ukrainian nationality  the actus reus of genocide under Article II of the [Genocide] Convention”. The Applicant seeks to found the Court’s jurisdiction on Article 36, paragraph 1, of the Statute of the Court and on Article IX of the Genocide Convention, to which both States are parties.

Ukraine asked the ICJ to order Russia provisionally to halt its military operations in Ukraine, in order to prevent “irreparable prejudice to the rights of Ukraine and its people” and to avoid “aggravating” the dispute between the two countries, both parties to the Genocide Conventions.

It also disputed Russia’s claims of genocide organized by Ukraine in the Luhansk and Donetsk separatist regions, which the Russian president, Vladimir V. Putin, used to justify for the invasion.

Already the ICJ has a case brought by Ukraine against Russia in 2017, accusing it of furnishing funds, weapons and training to illegal armed groups in the eastern Donbass region and of discriminating against the Crimean Tatar and ethnic Ukrainian communities in Crimea. Russia annexed Crimea in 2014.

Analysis

The two cases in the ICJ and the statement by the ICC Prosecutor are two tangible cases arising from the Russian – Ukraine conflict.

On February 25, Amnesty International issued a statement, underscoring that the Russian invasion of Ukraine “has been marked by indiscriminate attacks on civilian areas and strikes on protected objects such as hospitals.” Amnesty International documented three incidents that it believes to have killed at least six civilians and injured at least 12 more. Indiscriminate attacks violate international humanitarian law (the laws of war) and can constitute war crimes.

Amnesty International’s Crisis Evidence Lab analyzed digital evidence, including photos, videos and satellite imagery, of three such attacks. The attacks allegedly occurred in the early hours of the Russian invasion of Ukraine on February 24. The attacks occurred in Vuhledar, Kharkiv and Uman.

Non-governmental organizations often play an important role in documenting violations of international humanitarian law and collecting evidence that are later used in international investigations and litigation.

PILPG Expert Roundtable on the Role of International Law in Ukraine/ Russia Conflict

February 24, 2022 by Bruce Zagaris Leave a Comment

After yesterday’s explosive news that Russia has begun invading Ukraine, international law experts are scrambling to predict the legal implications of such a historic action.

The PILPG Thought Leadership Initiative, will be organizing an expert roundtable on March 4th, from 12pm ET to 1pm ET on the role of international law in the newest developing conflict.

The topics which will be focused on will be sovereignty, territorial integrity, the crime of aggression, and the use of force. The event will be moderated by PILPG Managing Director Professor Milena Sterio.

France’s Conseil d’Etat Upholds €100 Million Fine Against Google for Advertising Cookie-Related Data Protection Violations

February 21, 2022 by Bruce Zagaris Leave a Comment

By Jonathan J. Rusch[1]

It should be no surprise to any company doing business in the European Union that if it wants to use “cookies” – small text files stored in an Internet user’s computer to identify that user — for advertising purposes, it must abide by the provisions of EU law pertaining to data privacy. Recitals 26 and 28 of the General Data Protection Regulation (GDPR) make clear that any data that can be used to identify an individual either directly or indirectly is considered personal data. Moreover, for more than a decade the EU E-privacy Directive has recognized that users have a right to refuse cookies when an entity’s website seeks to place cookies on the users’ computers.

Even so, in 2020 the French Data Protection Authority (CNIL) imposed a total of €100 million on fines on a world-leading technology company, Google, for failure to comply with the obligation to obtain users’ consent before it installed advertising cookies or other tracking devices. The CNIL did so pursuant to Article 82 of the French Data Protection Act, which transposes the E-privacy Directive. Google then appealed to the French Conseil d’État, the highest French court for cases involving public administration, in an effort to annul the fines.

On February 1, the Conseil d’État rejected Google’s position and affirmed the CNIL fines. In its decision, the Conseil d’Etat confirmed that the CNIL had the power to intervene as it did. It also found that Google had failed to provide users with clear and complete information or to obtain their prior consent to cookie placement, and had a defective cookie refusal procedure. The Conseil took note of the fact that an audit that the CNIL conducted in March 2020 disclosed “that seven cookies were automatically installed on users’ computers as soon as they visited the site, four of which were only used for advertising purposes.” During that audit procedure, Google “modified its practices in August 2020, but continued not to inform the user directly and explicitly about the purposes of its cookies and the means of objecting to them.”

The Conseil further noted that the amount of the fines that the CNIL imposed did not exceed the limit set by the French Data Protection Act, and that the fines were not disproportionate in view of the significant profits generated by the data collected through advertising cookies, and of Google’s dominant market share in France (more than 90 percent, which equates to approximately 47 million users).

Google reportedly is already looking ahead to replacing its advertising cookies with “a new system called Topics, in which advertisers will place ads via a limited number of topics determined by users’ browser activity.” At other firms doing business in the EU, however, Chief Privacy Officers and Chief Compliance Officers should take note of the Conseil d’État decision and compare the Conseil’s findings against their own cookie policies and practices. Although certain aspects of data-protection law can be exceptionally complex, providing clear guidance to internet users about prior consent to or refusal of cookies should not be.

[1] Jonathan J. Rusch is Adjunct Professor and Co-Director of the U.S. and International Anti-Corruption Law Program at American University Washington College of Law and Adjunct Professor at Georgetown University Law Center.

Honduras Detains Former President on US. Extradition Warrant

February 16, 2022 by Bruce Zagaris Leave a Comment

On February 15, 2022, Honduran law enforcement authorities arrested former President Juan Orlando Hernández on an extradition warrant from the United States. The extradition warrant alleges he participated in a “violent drug-trafficking conspiracy.”[1]

Local television stations broadcast a video of Hernandez as police escorted him from his house with his hands and feet in chains.

The extradition request alleges that through 2019, Hernández obtained bribes from Geovanny Fuentes Ramïrez. The prior week a U.S. federal court in the Southern District of New York sentenced Fuentes Ramïrez to life in prison for cocaine trafficking. The extradition warrant alleges the bribes were left at the presidential residence.[2]

Hernandez promised to cooperate with Honduran justice authorities. In an audio message on Twitter he said he was “ready to collaborate and to come voluntarily.” He also said he would “confront this situation and defend myself.”[3]

In March 2021, former Honduran congressman Tony Hernández, the brother of the former President, received a sentence of life in prison in the U.S. for drug trafficking. Testimony at the trial was that his brother when he was president received millions of dollars from drug traffickers for protection, including from Mexican narco kingpin Joaquin “Chapo” Guzman.[4]

On February 7, 2022, U.S. Secretary of State Anthony J. Blinken announced the U.S. had included the former president on the U.S.’ Corrupt and Undemocratic Actions list, under Section 353 of the United States-Northern Triangle Enhanced Engagement Act (NTEEA), as amended.[5]

Hermes Ramirez, counsel for the former president, said his client had immunity from prosecution as a member of the Guatemala-based Central American parliament, Parlacen. On January 27, Hernández became a member of Parlacen hours after leaving office.[6]

Analysis

On the one hand, Honduras has never denied a U.S. extradition request. In addition, Honduras depends heavily on U.S. assistance. The Biden Administration has emphasize anti-corruption in the Northern Triangle. On the other hand, the Supreme Court judge who will hear the extradition case is affiliated with the former president’s party and has a history of absolving suspects in corruption cases.^[7] Notwithstanding the dependence of Honduras on U.S. assistance, the PRC is angling to increase its influence in Honduras, as it has done in El Salvador and most of Central America. As a result, the Hernández case is unique and warrants monitoring.

The current issue of the IELR will have a more comprehensive discussion of the case and its implications.

Footnotes

[1] Joan Suazo and Anatoly Kurmanaev, Former Honduras President Detained after a U.S. Extradition Request, N.Y. Times, Feb. 15, 2022.

[2] Kevin Sieff, Former Honduras president Juan Orlando Hernández arrested: U.S. seeks extradition on drug trafficking charges, Wash. Post, Feb. 16, 2022.

[3] Former Honduran president arrest as US seeks extradition on drug charges, France24.com, Feb. 4, 2022.

[4] Id.

[5] U.S. Department of State, U.S. Actions against Former Honduran President Juan Orlando Hernandez for Corruption, Feb. 7, 2022. Bruce Zagaris, U.S. Places Former Honduran President on List of Corrupt Officials and He Agrees to “Collaborate” on Extradition, 38 Int’l Enforcement L. Rep. 52 (2022).

[6] Former Honduran president arrest as US seeks extradition on drug charges, supra.

[7] Suazo and Kurmanaev, supra.

George Mason University SCHAR School Offering Spring 2022 Anti-Illicit Trade Institute Course

February 15, 2022 by Bruce Zagaris Leave a Comment

Spring 2022 Anti-Illicit Trade Institute Course:

April 5 – May 5, Tuesdays & Thursdays 4-5pm EST

Trade-Based Money Laundering and Illicit Flows: Practical Solutions

Course Overview:

This online course emphasizing TBML countermeasures, operations, and practical steps is taught by two internationally-recognized experts on TBML and Anti-Money Laundering and Countering the Financing of Terrorism (AML/CFT), John Cassara (former US Treasury Special Agent and author) and Lakshmi Kumar (Policy Director, Global Financial Integrity). David M. Luna (former U.S. State Department official, co-Director of traCCC-AITI) and Dr. Louise I. Shelley (University Professor and Omer L. Nancy Hirst Endowed Chair at the Schar School of Policy and International Affairs at George Mason University and founder and executive director of traCCC), along with Peter Wild (FCA, CAMS, and trade finance specialist) will be guest instructors.

The instruction will be in “real-time” where students log into virtual class over Zoom. The course focus is on more concrete outcomes than previous AITI classes. the course will run consecutively for five weeks; two sessions a week. Students who successfully complete this executive development webinar will receive a certificate from the Anti-Illicit Trade Institute of the Terrorism, Transnational Crime, and Corruption Center (traCCC), Schar School of Policy and Government, George Mason University.

Course Schedule

Week 1: i. TBML – Magnitude, Description and Challenges; John Cassara

ii. Illicit Financial Flows – Illegal movement of Money and Capital; Lakshmi Kumar

Week 2: iii. Sources of information & Trade Data Analysis; Lakshmi Kumar & John Cassara

iv. New Technologies that Facilitate TBML – Lakshmi Kumar

Week 3: v. Trade Finance and Risk Management – Peter Wild

vi. Analysis of Trade Fraud & Case Examples – Dr. Louise I. Shelley & TraCCC staff

Week 4: vii. Illicit Financial Hubs, Illicit Trade, & Free Trade Zones (FTZs) – Lakshmi Kumar, Dr. Louise I. Shelley & David M. Luna

viii. Technology & Countermeasures – John Cassara, Lakshmi Kumar & Peter Wild

Week 5: ix. Operations, Case Studies, & Practical Steps – Instructor Panel Discussion; moderated by David M. Luna

x. Practical Applications ii: Student & Instructor Q&As & General Discussion

Questions? Contact them at traccc@gmu.edu

DIPLOMATIC DIALOGUE – ‘The Role of the Caribbean Financial Action Task Force in Anti-Money Laundering/Countering the Financing of Terrorism/Countering Proliferation Financing Compliance’

February 8, 2022 by Bruce Zagaris Leave a Comment

DIPLOMATIC DIALOGUE – ‘The Role of the Caribbean Financial Action Task Force in Anti-Money Laundering/Countering the Financing of Terrorism/Countering Proliferation Financing Compliance’

Thursday 10th February, 2022 | 1:00 – 3:00 p.m. Atlantic Standard Time

https://uwi.zoom.us/webinar/register/WN_I0gBP0QBReeZCbf0F8pBuQ

Jessica Byron-Reid Jessica.Byron-Reid@sta.uwi.edu

PROGRAMME

Welcome Remarks Professor Jessica Byron Director, Institute of International Relations (IIR)

Introduction of Guest Speaker Dr. Dave Seerattan Lecturer, IIR

Feature Presentation Ms. Dawne Spicer Director, Caribbean Financial Action Task Force (CFATF)

Commentary Ms. Alicia Nicholls Junior Research Fellow (Trade), Shridath Ramphal Centre, The UWI, Cavehill

Question and Answer Session

Vote of Thanks Ms. Zaynab Nakhid Postgraduate Diploma Student, IIR

A Former Kansas Teacher is now on Trial for Materially Supporting ISIS

February 2, 2022 by Alex Mostaghimi Leave a Comment

On January 31^st, 2022, former Kansas school teacher and resident, Allison Elizabeth Fluke-Ekren, made her first court appearance in Alexandria, Virginia after being charged with plotting multiple bomb attacks in the United States and training an all-female battalion for the Islamic State (ISIS), as well as her involvement in another terror group in Libya.[1]

Fluke-Ekren left the U.S. for Egypt in 2008 where stayed for three years until moving to Libya. In 2012, a witness told the court she was smuggled into Syria because she allegedly wanted to engage in violent Jihad on behalf of ISIS. Between 2014 and 2017, Fluke-Ekren allegedly engaged in terrorism related activities, including planning attacks in her home country.

Overview

To avenge an airstrike on a market area near al-Bab, Syria, Fluke-Ekren allegedly planned to drop off a backpack filled with explosives on a U.S. college campus with approved funding from former ISIS leader Abu Bakr al-Baghdadi.

Additionally, Fluke-Ekren allegedly explained to another witness that she could pack a vehicle with explosives, park it at the base of shopping mall, and detonate the bomb with a cell phone. Her plans were thwarted after her husband, another ISIS militant, objected.[2]

Fluke-Ekren and her husband brought $15,000 to Syria to buy AK-47s, grenades, and other military-style rifle items. In their statements to authorities, witnesses were surprised by how many assault rifles were in her home and how her children, as young as five or six, were seen holding a machine gun.

Root Causes and Prosecution Issues

The desire to defect from developed western developed nations to terrorist cells usually abounds from a feeling of resentment and displacement within immigrant communities. Policies in the UK, France, Ireland, and Australia dictate that those accused of involvement with ISIS are to be stripped of their citizenship. This has lent the feeling that those with immigrant backgrounds are second class citizens, constantly under the suspicion of terrorist sympathies. These defendants are then deported to their “countries of origin,” usually nations with which they have little or no relationship with, and are then tried in those new nations. Typically, these new nations are not fully apprised of all the evidence used to deport them from the old nation, which makes successful prosecution less likely.[3]

Cases involving suspected terrorists captured overseas can pose difficulties for prosecutors because witnesses and evidence usually reside in war zones. In early 2018, the FBI recovered several pages of handwritten English documents resembling an ISIS Sharia law exam. The exam showed that its creator was “Umm Mohammed al-Amriki” now known to be one of the aliases of Fluke-Ekren. After comparing the exam with handwriting samples provided by Fluke-Ekren’s family, authorities were able to confirm her authorship and role as a mentor.[4]

Conclusion

Overall, the topic of repatriation and the approach of deradicalization is a fraught topic. Many commentators have noted that the idea of repatriation for foreign fighters is political suicide, while human rights experts maintain that that rehabilitation and prosecution in developed legal regimes is the most effective path toward justice. It appears that after over 20 years since its conception, the fundamental questions of how to win the War on Terror have not been sufficiently answered. Ideas about which enactments of violence for political means are legitimate and illegitimate have not, and probably will never, be satisfactory to everyone on the globe.

The current issue of the IELR will contain a more comprehensive discussion about Fluke-Ekren and general disagreements about how to prosecute foreign terror fighters.

[1] Jansen, Bart and Meyer, Josh, DOJ: Former Kansas teacher charged with plotting US attacks appears in court, ordered detained, USA Today, January 31, 2022.

[2] Id.

[3] Mironova, Vera, The Challenges of Foreign Fighters Repatriating and Prosecuting ISIS Detainees, Mei Policy Center, January 2021 https://www.mei.edu/sites/default/files/2021-01/The%20Challenge%20of%20Foreign%20Fighters.pdf.

[4] U.S. v. Allison Elizabeth Fluke-Ekren, United States District Court for the Eastern District of Virginia, 5/15/2019.

Report Recommends UK Plug Gaps in Illegal Wildlife Trade and Illicit Finance

February 1, 2022 by Bruce Zagaris Leave a Comment

On January 19, 2022, the Royal United Services Institute for Defense and Security Studies( RUSI) published the Whitehall Report on Illegal Wildlife Trade and Illicit Finance in the UK. It is s the first independent study to address the UK’s exposure and response to IWT-linked illicit finance.

According to the report, the UK is a leading advocate of the need to ‘follow the money’ linked to illegal wildlife trade (IWT) on the international stage. Nevertheless, the UK has not focused on examining its own domestic record in this area.

Overview

The report uses an open-source literature review, analysis of government enforcement data, a focused ‘call for evidence’ and 40 semi-structured interviews. The report assesses the UK’s record in relation to the Financial Action Task Force’s (FATF) 2020 call for action in three specific areas: (1) facilitating action by affected countries to assess their exposure to IWT-linked illicit finance; (2) ensuring legal powers exist to bring financial charges in relation to IWT offending; and (3) engaging in greater numbers of parallel financial investigations in IWT cases.

Authored by Alexandria Reid, Research Fellow in Organized Crime and Policy and Cathy Haenlein, Director, Organized Crime and Policing, the report finds that the UK is currently failing to properly assess its role in laundering the proceeds of IWT. The UK has clear processes to determine national wildlife crime priorities. But it lacks an IWT-specific threat assessment or accurate understanding of the scope of IWT-related proceeds laundered in the UK. In that regard, inadequate attention exists to distinguish the movement of IWT products from proceeds. Proceeds may involve the UK, as a global financial center, independent of domestic movements of physical goods. As a result of these gaps, no reliable method exists to quantify the threat, allocate resources or furnish guidance to law enforcement and the private sector. The UK requires an official, national IWT assessment to implement the risk-based approach FATF recommends.

Legislation

The UK has strong laws and authorities to prosecute IWT offenses and associated economic crime. In particular, together the Proceeds of Crime Act 2002, the Criminal Finances Act 2017 and the Sanctions and Anti-Money Laundering Act 2018, among others, provide ample authority. A problem is that these powers are not applied in all relevant IWT cases. Various NGOs have criticized the low level of cases resulting in prosecutions or deterrent sentences. Research shows that courts primarily give offenders financial penalties, followed by suspended sentences. The UK actively supports strict legislation and sentencing guidelines abroad. However, the UK does not treat IWT with the same strictness at home.

Enforcement and Parallel Financial Investigations

With respect to enforcement and parallel financial investigations, the report finds that suspicious activity reports (SARs) are virtually unused as a source of intelligence in IWT cases in the UK. Few SARs exist where IWT is identified as the predicate offenses and low numbers of financial investigations are initiated. Law enforcement underuses asset confiscation authorities and small amounts are recovered. For instance, in 2020 law enforcement recovered only £2,455 from IWT cases. The Home Office has promised resourcing to develop financial investigation capacity in the UK National Wildlife Crime Unit. However, the unit ultimately depends on frontline law enforcement agencies to lead investigations. Without the high-quality threat assessment required for forces to justify a focus on IWT, it will continue to grapple to ensure that cases are brought.

Recommendations

The report makes recommendations to address the gap between the UK’s support for financial action against IWT abroad and its record at home. They include the need to conduct an official national IWT threat assessment to incentivizing the application of financial investigation powers and strengthening public-private sector cooperation. Importantly, the report also recommends a detailed evaluation of sentencing, reviews of investigations that fail to result in appropriate charges, and improved collection of criminal justice statistics on IWT cases.

The current issue of the IELR will have a more comprehensive discussion of the report.