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.
U.S. Justice Department Starts Task Force to Enforce Russian Sanctions against Russian Oligarchs
On March 2, 2022, U.S. Attorney General Merrick B. Garland announced the start of Task Force KleptoCapture to enforce sanctions, export restrictions, and economic countermeausres the U.S. has issued, in coordination with U.S. allies, in response to Russia’s military invasion of Ukraine. Task Force KleptoCapture will aim to enforce these actions that are designed to isolate Russia from global markets. In particular, the U.S. restrictions target the crimes of Russian officials, government-aligned elites, and persons who help or conceal their unlawful conduct.
Andrew C. Adams, co-chief of the Money Laundering and Transnational Criminal Enterprise Unit in the Office of the U.S. Attorney for the Central District of New York, will manage the Task Force.[1] The Task force leadership will include Deputy Directors from both the National Security and Criminal Divisions, and more than a dozen attorneys from these divisions, as well as the Tax Division, Civil Division, and U.S. Attorneys’ Offices across the country. It will be staffed with prosecutors, agents, analysts, and professional staff across the Department of Justice who are experts in sanctions and export control enforcement, anti-corruption, asset forfeiture, anti-money laundering, tax enforcement, national security investigations, and foreign evidence collection. The Task force will strengthen DOJ’s abilities and authorities against efforts to evade or undermine the restrictions the U.S. government has imposed in response to Russian military aggression.[2]
The Task Force’s mission will include the following: investigating and prosecuting violations of new and future sanctions imposed in response to the Ukraine invasion, and sanctions imposed for prior instances of Russian aggression and corruption; combating unlawful efforts to subvert restrictions imposed on Russian financial institutions, including the prosecution of persons who attempt to evade know-your-customer and anti-money laundering measures; targeting efforts to use cryptocurrency to evade U.S. sanctions, launder proceeds of foreign corruption, or evade U.S. response to Russian military aggression; and using civil and criminal asset forfeiture authorities to seize assets belonging to sanctioned individuals or assets identified as the proceeds of unlawful conduct.[3]
The Task Force will be able to use the most cutting-edge investigative techniques, including data analytics, cryptocurrency tracing, foreign intelligence sources, and information from financial regulators and private sector partners, to identify sanctions evasion and related criminal misconduct.[4]
In addition to arrests and prosecution, the Task Force will employ asset seizures and civil forfeitures of unlawful proceeds, including personal real estate, financial, and commercial assets to deny resources that enable Russian aggression. When appropriate, the Task Force will share information obtained in its investigations with interagency and foreign partners to help the identification of assets that are covered by the sanctions and new economic countermeasures.
The Task Force KleptoCapture will complement the work of the transatlantic task force under President Biden and leaders of the European Commission, France, Germany, Italy, the United Kingdom, and Canada on February 26. The transatlantic task force has a mission to identify and seize the assets of sanctioned individuals and companies around the world.[5]
The Task Force will involve agents and analysts from various law enforcement agencies, including the FBI; U.S. Marshal Service; U.S. Secret Service; Department of Homeland Security; IRS-Criminal Investigation; and the U.S. Postal Inspection Service.
Meanwhile, on March 2 the Independent Commission for the Reform of International Corporate Taxation (ICRICT) issued a statement in support of the call by Italian Prime Minister Mario Draghi’s for an international public register of wealth for Russian oligarchs with more than €10 million in assets.
Analysis
If the US Task Force and the law enforcement authorities of its allies cooperate in terms of intelligence, evidence gathering, and extradition, they will exert pressure on the oligarchs. President Biden announced the creation of the Task Force in his state of the union speech on March 1. The initial one-third of the address dealt with the response by the U.S. and its allies to the Russian invasion. President Biden said:
“Tonight, I say to the Russian oligarchs and the corrupt leaders who’ve bilked billions of dollars off this violent regime: No more.
The United States — I mean it. The United States Department of Justice is assembling a dedicated task force to go after the crimes of the Russian oligarchs.
We’re joining with European Allies to find and seize their yachts, their luxury apartments, their private jets. We’re coming for your ill-begotten gains.”
To some extent the Biden speech and the Garland announcement mix persons who violate past, current and future sanctions against Russia with persons who have or are laundering proceeds of foreign corruption or U.S. responses to Russian military moves, such as export control and other restrictions. In particular, the announcement of the Task Force mentions false statements to a financial institution, bank fraud, tax offenses, and money laundering. In addition, as demonstrated by the non-compliant assessment in FATF’s 2006 and 2016 evaluation of the U.S. and the recent comments to the proposed CTA regulations, U.S. gatekeepers do not meet international standards and remain opposed to complying with the new regulations. As a result, notwithstanding the Task Force KleptoCapture, U.S. law and culture prevent proactive law enforcement cooperation.
Whether the Russian oligarchs will have any influence on Vladimir Putin remains to be seen. However, the sanctions and the emphasis on enforcement follow a recent trend of the U.S. since the Obama Administration: the emphasis on criminal and quasi-criminal enforcement of U.S. sanctions. The rest of world is following this trend. Actual close collaboration among law enforcement authorities and international organizations, informal groups (i.e., G7), and non-governmental organizations will help make sanctions enforcement more effective.
On March 1, Putin signed a decree that prohibits taking more than $10,000 worth of foreign currency in cash and “monetary instruments” out of Russia. The move responds to the sanctions imposed on Russia over its invasion of Ukraine.
As the U.S. is trying to adopt regulations to make its Corporate Transparency Act operational, increasingly the European legislative and executive branches are debating making their corporate and trust registries more publicly accessible without cost and broadening the registries to include not only beneficial ownership of companies and trusts, but diverse assets, such as art, real property, crypto assets, and linking the registries, so that regulators and law enforcement have easy access. One gap is that, since the U.S. has not yet implemented the Corporate Transparency Act, does not fully reciprocate on information exchange pursuant to FATCA Intergovernmental Agreements and does not participate in the Common Reporting Standard, wealth structures have moved to the U.S. both for anonymity and to take advantage of the lucrative U.S. economic market.
[1] Katie Banner, Justice Department Announces Task Force to Go After Russian Oligarchs, N.Y. Times, Mar. 3, 2022.
[2] DOJ, Attorney General Merrick B. Garland Announces Launch of Task Force KleptoCapture, Press Rel. 22-179, Mar. 2, 2022.
[3] Id.
[4] Id.
[5] Id.
France’s Conseil d’Etat Upholds €100 Million Fine Against Google for Advertising Cookie-Related Data Protection Violations
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.
Report Recommends UK Plug Gaps in Illegal Wildlife Trade and Illicit Finance
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.
2021 Holiday Retrospective
We at the IELR send you the best wishes for a warm and joyous holiday season. 2021 was momentous for the international enforcement community, and we are grateful to have had you following along with our coverage during our 37th year of discussing international enforcement developments.
Contributors
We are grateful for the continuing long partnership with Professor Michael Plachta and for contributions from practitioners and professors, including Dr. Ted Bromund, Frederick T. Davis, Michele Estlund, Dr. Scott MacDonald, Dennis Boyle, Konstantinos Magliveras, Yuriy Nemets, Spencer A. Hill, Peter D. Hardy, Kateryna Boguslavska, Matteo Formaggi, and Linda Friedman Ramirez. Miranda Bannister finished her tenure as assistant editor in February. Marwah Adhoob, who specialized in criminology as an undergrad, energetically replaced her. Our legal assistants Sara Kaufman and Emma Byrne ably contributed articles. Our interns, Mitchell Beebe, Elena Botts, Kayla DeAlto, Austin Max Scherer, Teddy David, Jamie Jang, Kenneth Boggess, and Julia V. Brock, contributed some great pieces.
The following is a highlight of some of the articles we covered.
International Criminal Court
The International Criminal Court was prominent in our coverage. Plachta discussed the territorial jurisdiction of the ICC in the Palestine/Israel Case as well as the ICC Prosecutor closing a preliminary examination in Colombia and concluding an agreement with the Colombian government. K. DeAlto discussed the Central African Republic’s surrender of Said Abdel Kani to the ICC. M. Beebe and Zagaris wrote articles about the U.S. District Courts’ blocking President Trump’s executive order, sanctioning ICC officials. Zagaris discussed President Biden’s revocation of the Trump executive order.
War Crimes and Crimes against Humanity
On war crimes and crimes against humanity, Brock discussed the reversal by the South Korean court of the 2018 on “comfort women” and ordered Japan to pay reparations to the families of 12 women forced to work as sex slaves. Plachta discussed the ECHR’s decision on German responsibility for an air strike in Afghanistan. David and Kaufman respectively discussed German courts’ convictions of a former Syrian secret police officer and a Syrian military doctor for crimes against humanity and Adhoob discussed a German court’s conviction of a woman for crimes against humanity in the death of a Yazdi girl in Syria. Likewise, Adhoob detailed the enforcement actions of the UN with regards to genocide, such as UN’s opening of an inquiry into Sri Lanka’s alleged war crimes during its civil war as well as the UN investigation team’s conclusion that ISIL’s crimes against Yazidis constitute genocide. Adhoob discussed a report by a U.S. law firm, finding France responsible for the Rwandan genocide. Zagaris and Adhoob wrote about the UN Human Rights Council’s adoption of a resolution to start a Commission of Inquiry on the latest Israel-Palestine conduct. Jang discussed the African Union’s starting of a Commission of Inquiry on the war in Ethiopia. David wrote about the conviction in a Swiss court of a Liberian warlord, putting the spotlight on universal jurisdiction and Liberian accountability. Zagaris covered the French Supreme Court’s overturning of the dismissal of complicity for crimes against humanity against multinational enterprise Lafarge for its conduct in Syria. Boggess discussed the UN Human Rights Council’s Independent Fact-Finding Mission renewing its mandate as a UN report warns of war crimes and crimes against humanity. Ramirez wrote about a judgment of the Inter-American Court of Human Rights, finding Colombia responsible for a journalist’s abduction twenty years before.
Tax transparency and Enforcement
With respect to tax transparency and enforcement, Zagaris wrote about the EU Parliament’s adoption of a resolution to toughen the tax haven blacklist, the OECD’s call for action to disrupt, prevent, and prosecute criminal conduct by professional enablers, the OECD’s new edition of fight tax crime, and the many cases against tax enablers, including the cum-ex dividend fraud cases, as well as a federal court’s approval of a John Doe Summons for a Panamanian law firm dealing with U.S. clients. Scherer also wrote about how charges against professionals illustrate the shifting legal landscape for professional enablers. Zagaris also discussed the U.S. Tax Court decision against a constitutional challenge to passport denial for delinquent taxpayers and about a founder of a Russian bank pleading guilty to tax fraud, including falsifying his expatriation statement. Zagaris discussed the Nigerian government’s start of voluntary offshore assets London declaration facilities and its application to foreign enablers. Zagaris wrote about a CJEU decision mandating enforcement of tax information request even without the taxpayer’s specific name and identity.
Money Laundering, Bank Secrecy and Transparency
On money laundering, bank secrecy and transparency, Boguslavska discussed how the 10th Basel AML index highlights four worrying gaps in global AML efforts. Zagaris wrote several articles on the Anti-Money Laundering Act of 2020, as well as FinCEN’s proposed regulations on beneficial ownership and the ANPRM on beneficial information on real estate purchases. MacDonald wrote about Suriname’s corruption and money laundering challenges. Adhoob and Zagaris wrote about the FinCEN notice informing financial institutions of money laundering dangers from illicit art and antiquities trade. Plachta discussed the Council of Europe’s adoption of a resolution and recommendation on strengthening FIUs. Zagaris discussed the Cayman AML regulator’s crack down after the FATF greylisting. Scherer discussed how the Xizhi Li conviction showed an application of money laundering techniques for laundering drug proceeds on behalf of foreign drug-trafficking organizations. Zagaris discussed the implications of the Pandora Papers and the proposed new enforcement actions of the European Parliament in the wake of the Pandora Papers.
Counter-terrorism, Economic Sanctions and Human Rights
Counter-terrorism, economic sanctions and human rights were continuing topics. Plachta discussed the adoption by the European Commission of a new counter-terrorism agenda and a proposal for amending Europol regulation. Adhoob discussed the ACLU’s suit on alleged discrimination by the U.S. “no-fly list” against Arabs and Muslims. Zagaris covered China’s adoption of blocking legislation and counter-sanctions. Bannister covered the Biden Administration’s countering the Trump Administration’s sanctions against the Houthi rebels in Yemen. Zagaris discussed the ruling of the EU Advocate General that a German telecom cannot cancel a contract with an Iranian bank without showing the cancellation was not due to U.S. sanctions.
Counter-terrorism financing,
On counter-terrorism financing, Adhoob discussed U.S. prosecution of a woman extradited by the Dutch for terrorist financing through a charity. Zagaris wrote about a French donor’s financial contributions to the U.S. alt-right before the capitol assault and the need to apply counter-terrorism financial enforcement tools as well as a meeting between G7 and EU Security ministers on cooperation on countering racially and ethnically motivated extremism.
Transnational Corruption and Asset Forfeiture
With respect to transnational corruption and asset forfeiture, Zagaris discussed the Justice Department’s civil forfeiture suit against two alleged Ukrainian kleptocrats, a settlement by Deutsche bank of an FCPA and commodities case. Bannister and Adhoob covered in separate articles the fishrot scandal in Namibia, where Icelandic Samherji employees allegedly paid bribes to Namibian government officials for rights to fish for horse-maskerel. Boyle discussed the Biden Administration’s policy toward Central America and the challenges posed by corruption. Zagaris contributed a piece on U.S.-N. Triangle Enhanced Engagement Act setting the stage for new U.S. policy. Zagaris discussed the British Commission on Inquiry’s investigation of alleged corruption in the BVI as well as the Biden memorandum declaring anti-corruption a core U.S. national security interest. Zagaris wrote about the Dutch court’s agreement with a report calling the Santos-linked Angolan energy deal corrupt. Zagaris discussed the Amec Foster Wheeler’s global corruption settlement with the U.S., U.K., and Brazil. Zagaris discussed the return by the U.S. government of an additional $452 million in forfeited 1MDB funds to Malaysia as well as the DOJ’s return of over $32m in forfeited funds to FIFA victims.
Illegal Production and Use of Weapons
With respect to the illegal production and use of weapons, Zagaris discussed a suit by the Mexican government against U.S. arms manufacturers for illicit trafficking in arms as well as the guilty plea in the U.S. in the first successful prosecution of exportation and manufacturing of firearms to the Mexican Cartels. Adhoob discussed the U.K. and U.S. sanctions on seven Russian agents and entities over the Alexi Navalny poisoning. Zagaris discussed a ECtHR’s decision finding Russia responsible for the assassination of Litvinenko and Britain naming a third Russian suspect in the poisoning of Skripal.
Extraterritorial Jurisdiction
Extraterritorial jurisdiction remained controversial. Fred Davis discussed the Second Circuit’s decision, opening the door a bit to non-citizen defendants challenging a court’s jurisdiction in criminal cases and also the partial clarification by the Second Circuit of the procedures applicable to prosecution of foreign sovereign owned enterprises. Zagaris discussed Bahrain’s return of a U.S. citizen to the U.S. to face charges of murdering his mother in Bahrain as well as an Italian court’s ordering four Egyptians to stand trial in the kidnapping and killing of an Italian student in Egypt. Zagaris wrote about a Spanish court’s ordering Banco de Chile to set aside $103 million for its role in money laundering from the Pinochet expropriations and about the EU Commission proposals for major revisions in its AML/CFT laws.
Recovery and Return of Cultural Property
On the recovery and return of cultural property, Zagaris discussed the German-Nigeria agreement on the return of Benin bronzes as well as the DOJ forfeiture action for 10th century statute looted from Cambodia, and the return by U.S. Homeland Security of hundreds of looted artifacts to Mali. Adhoob covered the U.S. return of looted artifacts to Iraq stolen after the U.S. invasion as well as the discussion between Met officials and U.S. investigators of returning to Cambodia artifacts stolen from ancient sites.
Transnational Organized Crime
On transnational organized crime, Plachta discussed the consequences and prospects for the UN (Palermo) Convention against Transnational Organized Crime on its 20th anniversary. Adhoob discussed the arrest by Italian police of suspected Black Axe members for fraud and other serious crimes. Boggess covered the international dark web bust operation DarkHunTOR following the dark market seizure by U.S. and EU law enforcement.
On international narcotics enforcement, transnational organized crime and corruption, Zagaris wrote about Mexico exonerating its ex-defense chief and enacting a law pausing enforcement cooperation with the U.S. Bannister wrote about the UN Commission on Narcotic Drugs’ vote to remove cannabis from the list of Schedule IV narcotics. Zagaris wrote about the U.S. detention of the wife of “El Chapo” and the guilty plea to violating the Kingpin Act by the daughter of the head of the Cartel Jalisco Nueva Generación. Hill and Hardy discussed a UN report targeting corruption and illicit cross-border finance. Kaufman covered ANOM, a global covert investigation conducted by law enforcement worldwide through an encrypted App, yielding 800 arrests. Zagaris wrote about Mexico’s suit in U.S. court in Florida to recover assets from former security chief linked to the Sinaloa cartel. Adhoob discussed the Italian police’s dismantlement of an international drug trafficking ring operated by the ‘Ndrangheta mafia clan.
International Environmental Enforcement
With respect to international environmental enforcement, Zagaris covered Kenya’s extradition of its citizen for trafficking rhino horns, elephant ivory, and heroin. Byrne discussed illicit ivory trafficking from Angola to Vietnam. Adhoob wrote about the S. African arrest of a hunter for illegal possession of rhino horns. Zagaris discussed how U.S. prosecutions of three wildlife trafficking violations show the rising incidence of these crimes.
Migration Enforcement
Migration enforcement received significant focus. Byrne discussed the INTERPOL operation targeting human trafficking and migrant smuggling in approximately 24 countries. Adhoob covered the U.S. State Department’s 2021 trafficking in persons report and the impact of misinformation and Covid-19 on human trafficking. Adhoob also discussed a State Department’s lawyer’s resignation due to a Biden Administration policy on asylum Kaufman discussed the 5th Circuit’s decision rejecting the Biden Administration’s efforts to end Migration Protections Protocols. Plachta wrote about the EU’s responses to human smuggling in the Belarus border crisis.
International human rights and enforcement,
With respect to international human rights and enforcement, Plachta discussed the EU adoption of Magnitsky-type global human rights sanctions regime. Magliveras discussed the first application of sanctions under the EU’S Magnitsky Act on Russia. Zagaris wrote about Turkey’s arrest of an Iranian dissident’s coinciding with Freedom House’s transnational repression report as well as about the signing by 58 nations of a declaration against arbitrary detention of foreign and dual nationals. Botts wrote about OFAC’s naming three Bulgarians under the Global Magnitsky Act for corruption. Kaufman discussed how events in Haiti and C.A.R. show the threats posed by mercenaries to international peacekeeping. Adhoob covered ECOWAS’ demanding answers in the alleged detention of Mali’s former interim leaders as well as Qatar’s imprisoning a Kenyan for blogging about low-income Kenyan migrants work conditions in Qatar.
Extradition and Extradition Alternatives
Developments on extradition and extradition alternatives remained critical. Ramirez and Boggess wrote articles about the extradition of Venezuelan diplomat Alex Saab to the U.S., notwithstanding his claims of diplomatic immunity. Zagaris wrote several articles about the Assange extradition decisions by U.K. courts and the U.S. extradition of the father and son for helping Carlos Ghosn escape from Japan. Zagaris covered the S. African court’s overruling the Justice Minister in ruling the former Mozambique Finance Minister will be extradited to the U.S. rather than Mozambique.
Nemets discussed how the U.S. Immigration court’s handling of INTERPOL Red Notices and diffusions suggests a uniform approach. Estlund and Bromund summarized and assessed the 2019 changes in INTERPOL’s rules on the processing of data. Zagaris discussed the CJEU decision against detention for INTERPOL Red Notice due to ne bis in idem (dual criminality).
International Evidence Gathering
With respect to international evidence gathering, Jang discussed how the Gupta brothers’ corruption scandal invoked the ratification of a new mutual legal assistance and extradition treaty between S. Africa and the UAE. Adhoob covered the Netherlands’ funding the Iraq UNITAD witness protection program to promote accountability for crimes committed by ISIL.
Economic Integration and International Enforcement
Plachta contributed many articles on economic integration and international enforcement, including the European Parliament’s call for improvement of implement and application of the European Arrest Warrant (EAW), and the EU Court of Justice’s rejection of “automatic refusal” of EAWs issued by Polish authorities. Zagaris discussed the Eurojust’s new funding initiative for joint investigation teams. Scherer discussed the EU whistleblower protection directive the Jonathan Taylor extradition. Plachta covered the adoption by the Council of Europe of a resolution on political responsibility for corruption as well as the European Commission releases of three proposals to strengthen and enhance police cooperation across the EU.
Maritime Piracy
On maritime piracy, Scherer discussed the shipping industry task force initiative against maritime piracy in the Gulf of Guinea. Adhoob discussed the Nigerian high court’s sentencing of 10 pirates for the hijack of a Chinese vessel.
International Tribunals
With respect to international tribunals, Zagaris discussed the affirmation by the Appeals Chamber of the International Residual Mechanism for Criminal Tribunals of the conviction of Ratko Mladić’ for genocide, crimes against humanity and war crimes, as well as the closure of the Special Tribunal for Lebanon and how the closure raises questions about international tribunals.
International Sex Trafficking
Mr. Zagaris contributed articles on international sex trafficking, especially the U.S. and Canadian charges against the Canadian fashion tycoon Peter J. Nygard.
Online Child Sex Exploitation Abuse
With respect to online child sex exploitation abuse, Zagaris covered U.S. indictments and INTERPOL’s pursuit of international enterprises and individuals involved in online sexual exploitation. He wrote about the EU Justice & Home Affairs Council initiatives on the digital dimension of child sexual abuse.
Cybercrime
Cybercrime continued to grow exponentially. Zagaris discussed cooperation between the EU and eight countries in taking down dangerous the malware EMOTET, the DOJ’s participation in global disruption of NetWalker ransomware, and Australia’s extradition of two defendants in an auto-subscribing cyber fraud scheme. Zagaris discussed the U.S. indictment against three N. Korean military hackers. Adhoob discussed the imposition by the Biden Administration of sanctions against Russia for alleged election interference and SolarWinds cyber hacks as well as the guilty plea of a crypto expert to assisting N. Korea evade sanctions. Zagaris covered U.S. sanctions against a Russian-owned crypto-exchange for ransomware activities as well as the U.S. indictment and sanctions against Iranians for cyber-enabled disinformation regarding the 2020 Presidential Campaign. Scherer wrote about cases involving the seizing illicit proceeds of and combating ransomware attacks. Zagaris covered the guilty plea by the director and promoter of BitConnect for its participative in a massive fraud conspiracy. Formaggi discussed China’s declaration of all cryptocurrency transactions illegal while the U.S. and EU prepared further crypto regulation. Zagaris discussed the arrests and seizures by 17 countries of alleged ransomware extortionists. Plachta covered the adoption by the Council of Europe of the Second Protocol to the Cybercrime (“Budapest”) Convention.
International Anti-trust Enforcement Cooperation
On international anti-trust enforcement cooperation, Zagaris discussed the DOJ’s Antitrust Division summary of its 2020 international achievements.
Export Control and Economic Sanctions
With respect to export control and economic sanctions, Boggess discussed the CEO quitting after the U.S. Commerce Department blacklisted Israeli spyware firm NSO Group. Zagaris wrote about the Mashreqbank settlement with OFAC, the Federal Reserve and NYDFS for violating the Sudan sanctions.
Illegal, Unregulated, and Unreported Fishing
With respect to illegal, unregulated, and unreported fishing, Adhoob wrote about Bolivia’s signing an MOU to strengthen compliance/transparency in the fishing industry.
Saudi Arabia Cracks Down on Anti-Corruption Efforts
By Marwah Adhoob
On August 9, 2021, the Saudi Arabian Anti-Corruption sector, Nazaha, confirmed the arrest of 207 persons for corruption-related charges, including bribery, forgery, and abuse of power in official positions.
The named suspects include individuals that were government employees in the Defense, Interior, Justice, Health, and Education departments. The press release did not name specific individuals and merely listed the departments. The arrests involved investigations into more than 400 individuals that allegedly engaged in criminal and administrative offenses.
The Nazaha said in a statement that the legal proceedings are pending in preparation for court referral.
Corruption has long been an issue in Saudi Arabia, and these arrests were a part of a more extensive campaign to target corrupt entities. In 2017, Prince Mohammed specifically targeted officials in high power capacity, such as princes, businesspersons, public figures, and other elite persons, for their involvement in facilitating corruption in the country.
Previously, in April 2021, the Nazaha also made a sweeping arrest of more than a hundred public officials for alleged corruption involvement and charges.
According to the Organized Crime and Corruption Reporting Project, “The probe recovered over US$100 billion, and resulted in the arrest of 56 members of the royal family.”
Potential Human Rights Concerns
The Human Rights Watch pointed out that Saudi Arabia’s rampant arrests should be done with adequate due process rights and protections. In 2020, Human Rights Watch urged the Saudi authorities to “reveal the legal and evidentiary basis for each person’s detention” and that the detainees should have access to adequate due process rights.
The Deputy Director of the Human Rights Watch in the Middle East, Michael Page, said that the “The fight against corruption is no excuse for flagrant due process violations and preventing people from mounting an adequate defense.” And “Given their track record of abuse, the Saudi authorities should make fundamental reforms to the justice system to ensure that the accused will not be railroaded in unfair legal proceedings,” he continued.
In the 2017 and 2018 arrests, media reports indicated that the Saudi authorities allegedly used physical abuse to compel suspects to turn over assets. Some detainees were in critical condition due to the physical abuse.
Exploring Foreign Criminal Procedures Through Film
by Frederick T. Davis*
Since 2017 I have been teaching a course at Columbia Law School called “Comparative Criminal Justice,” which explores the very fundamental differences among criminal procedures around the world. It focuses particularly on the split between the “common law/accusatorial” world of criminal justice associated with English traditions and the “civil law/inquisitorial” world associated with continental Europe; those traditions are visible around the globe, including of course in the United States but also in many countries in South America, Africa and Asia whose legal traditions, at least in part, derive from one or another system. The course is fun. And I believe its message is important: the world is globalizing quickly, and crimes do not respect borders; prosecutors, law enforcement personnel, and others involved in criminal justice are increasingly confronted with legal systems different from the one in which they are trained, and do not always respond appropriately. My opinion is that many transnational criminal investigations have ended in sub-optimal outcomes because one or another participant did not understand the procedures and dynamics of the system within which an adversary was acting. Separately, international criminal tribunals hold trials in which important people, including in several instances a former head of state, have been charged with international crimes such as war crimes, torture, genocide, and crimes against humanity; my opinion is that many of those tribunals work inefficiently because they have not developed a coherent set of “international” criminal procedures, but rather tend to use a crude admixture of procedures drawn from very different legal systems that happen to be the only ones its participants understand.
My Columbia course was born of some experience in these areas: I am a former federal prosecutor and a New York trial lawyer, a Fellow of the American College of Trial Lawyers, but in 2006 I moved to France, sat for the Paris Bar, and engaged in quite a few criminal matters in France, including two trials; along the way, I have worked extensively at several of the international criminal tribunals, serving as an advisor to the Prosecutor at the (now former) International Criminal Tribunal for Rwanda as well as for the Prosecutor at the International Criminal Court in The Hague, and I advised a large group of victims in the (successful) prosecution of former Chadian dictator Hissène Habré for crimes against humanity in a trial in Senegal. I started organizing my comparative course based on this experience, and have enjoyed learning – and in a modest way, contributing to – the limited but useful academic literature on comparative criminal procedures.
My academic career took a huge boost when I stumbled upon 2014 article called A Survey of Comparative Criminal Procedure Through Foreign Films, published in Opinion Juris in Compatione, Vol I, Special Issue (2014) by Samuel W. Bettwy, an Assistant United States Attorney in the Southern District of California and an Adjunct Professor of Law at the Thomas Jefferson School of Law, where he teaches a course – which long anticipated mine! – on comparative criminal procedures. The article makes a simple but profound point: differences in criminal procedures reflect differences in culture. It then explores these differences in a visual and concrete way by analyzing films from around the world that portray investigations, interrogations, trials and other criminal procedures – not through documentaries so much as via mass-audience movies that unconsciously but accurately reflect cultural values. The article contains a clear exploration of the “common law / civil law” dichotomy, as well as variants, and then links them to specific films from around the world. A few years later Mr. Bettwy developed this article into a book, called Comparative Criminal Procedure Through Film: Analytical Tools and Law and Film Summaries by Legal Tradition and Country, which is available on Amazon and elsewhere. And in 2019 he took this remarkable work a huge step forward, publishing an “e-book” that not only contains his exploration of various legal traditions around the world, but includes actual, clickable links to over 400 film clips, extracted at great effort from films in 55 countries around the world, organized by the criminal procedure that they involve. This innovative “book” is available online, and is a unique resource for anyone interested in criminal justice – as well as a source of infinite amusement for film buffs.
On June 30, 2021, Sam Bettwy and I conducted a one-hour webinar on the theme of Comparative Criminal Procedures, Viewed Through Film, which took place at Columbia Law School; a recording of it is publicly available here. In it we showed six clips relating to two well-known criminal issues (the right to silence and the role of a judge and counsel during trial), three from England (including clips from two classics – The Paradine Case from 1948 starring Gregory Peck as a London barrister and Witness for the Prosecution, starring Charles Laughton), comparing them with three well-known French films that involved the same procedural issue. We ended up with an extract from A Separation, a classic 2011 film from Iran that includes some incomparable trial scenes quite different from either of the main Western traditions.
Our one-hour discussion was the barest introduction to the fascinating subject that Sam and I examine in our courses, and which can be explored through his book. Core criminal principles such as the right to confront witnesses and the right to counsel, as well as crucial procedures such as cross-examination, are not immutable: they are often implemented differently around the world. It is important to understand that these differences are not a matter of one country’s process being “better” than another, different procedures simply respond to different histories, traditions, and norms. And there is no better way to visualize this important point than through film.
*Davis is a member of the New York and Paris Bars. He is a Lecturer in Law at Columbia Law School where in addition to his course on Comparative Criminal Justice he also teaches on International Criminal Investigations, and he teaches or speaks frequently in Europe. His writings can be found at https://freddavisnylaw.com/