IELR Blog

Official Blog of the International Enforcement Law Reporter

Webinar The arms trafficking menace in the Caribbean: Understanding the Crime & Litigation Dynamics

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On Thursday September 26, from 5:00-7:00 p.m. Eastern Standard Time, the Institute of International Relations, University of the West Indies, St. Augustine, Trinidad, the Caribbean Policy Consortium, and the American Bar Association Criminal Justice Section will host a webinar on

The arms trafficking  menace in the Caribbean: Understanding the Crime & Litigation Dynamics

Moderator: Prof. Ivelaw Griffith, will moderate.

Dr Malisa Neptune-Figaro,  Department of Behavioural Sciences, The University, of the West Indies, T&T, will discuss “Unveiling the Threats: Illicit Firearms in the Caribbean;”

Dr. Tres-Ann Kremer,  Caribbean Regional Director, Tony Blair Institute for Global Change, will discuss “Strategy, Policy and Delivery: Addressing Guns and Violence as a Public Health Issue in the Caribbean;”

Mr. Callixtus Joseph,  Assistant Director, Policy, Strategy and Innovation, CARICOM IMPACS, will address “Impact and Implications of Illicit Firearms: Pathways to Change;”

Mr. Ivan Carpio,  State Department, Caribbean Security Initiative, will focus on “Examining US Government, initiatives Including Cooperation with Caribbean Governments;”

Mr. Bruce Zagaris,  Partner, Berliner Corcoran & Rowe LLP and  Fellow, Caribbean Policy Consortium, will look at the “Status of U.S. litigation against gun manufacturers and distributors: Suits  outside the U.S.”

Registration is free.  A registration link is below:

https://sta-uwi-edu.zoom.us/webinar/register/WN_dGY8rk_2QmeDp7yRC3kh4w

 

ADDRESSING GENDER BASED VIOLENCE AND ENVIRONMENTAL CRIMES IN WEST PAPUA

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American Bar Association Presentation of the International Criminal Law Committee

By Kaila Hall

 

On May 28, 2024, the American Bar Association hosted a webinar1 on “Addressing Gender Based Violence and Environmental Crimes in West Papua.” This event was co-sponsored by the South Asia, Oceania, and India Committee in co-operation with the International Association of Genocide Scholars. The panel featured Szilvia Csevár, Lecturer and Researcher of Public International Law at The Hague University of Applied Sciences, as well as Fadjar Schouten-Korwa, a human rights lawyer in the Netherlands, and David Whyte, Professor of Climate Justice at Queen Mary University of London. Bruce Zagaris, Partner at Berliner Corcoran & Rowe LLP in Washington, D.C. moderated the event.

Located on the western half of the island of New Guinea, West Papua’s indigenous population consists of nearly 51% of the island. It has a unique biodiversity and is the world’s third-largest rainforest after the Amazon and Congo. Throughout its tumultuous history, West Papua has been subject to colonial rule. In 1526, the Portuguese arrived and instituted control over New Guinea. In the aftermath of World War II, a period of decolonization globally ensued. Indonesia received its independence from the Netherlands in 1961. In the following year, the United States mediated negotiations between the Dutch and the UN in what became known as the New York Agreement2. However, in 1963, Indonesia invaded West Papua and eventually formalized its rule in 1969 with the Act of Free Choice3 referendum. West Papuans refer to this as the “Act of No Choice4.” Today, due to the island’s rich natural resources, foreign interference, mining, and extraction ​​efforts have remained routine. Consequently, this has exacerbated tensions between the indigenous population, Indonesia, and other foreign entities, contributing to numerous human rights violations. At the ABA webinar, panelists provided key insight on gender-based violence, genocide, and climate crimes that are taking place in West Papua and the possible solutions to end the commission of international crimes.

Fadjar Schouten-Korwa began by discussing the continued repression of the indigenous Papuan population through environmental crime. Approximately 60,000 women and children have been displaced5 to date with no access to food, healthcare, and education. She highlighted the clear link between repression by the Indonesian government and the extensive exploration of natural resources. Her primary area of focus is advocating against human rights violations and environmental crimes in West Papua from an indigenous perspective. In her presentation, she particularly noted the involvement of the US-owned company Freeport-McMoRan which has been extracting gold from the Grasberg mine since 1967. Today, there are daily discharges of 200,000 tonnes of toxic tailings6 due to ongoing mining, leading to a multitude of environmental issues, such as deforestation and the poisoning of local rivers. Schouten-Korwa also noted the role of palm oil and timber extraction in causing environmental harm. Additionally, she observed that despite legal protections for indigenous populations enshrined in the UN Declaration on the Rights of Indigenous Peoples7, the Indonesian Constitution8, and the Special Autonomy Law for West Papua9, indigenous rights have continued to be trampled on by the Indonesian government. Ultimately, she argued that these human rights abuses and lack of self-determination are inextricably linked to the unfinished decolonization of the island.

Next, Szilvia Csevár presented her research on patterns of gender-based violence as well as the environmental factors that have driven this marginalization in West Papua. Csevár argued that the long-term colonization of the island through extensive resource extraction and exploitation has contributed to climate change and violence against indigenous women in particular. She reiterated that the ongoing political conflict is propelled by the Grasberg mine extractions of palm oil. Indonesia is the world’s largest exporter of palm oil with 58% of the global market share10. She argued that the Indonesian government has weaponized the role of the military to oppress the indigenous population and deny their human rights. Through sexual violence and abuse, the Indonesian military has committed crimes against indigenous women who have tried to defend their land around the mine, resulting in their displacement and increased tensions within the local community. By committing these abuses, the Indonesian military spreads fear and contributes to the victimization of women and young girls in the local community. Through this displacement, the Indonesian government has seized their land and has furthered their natural resource extraction. Since the Indonesian government prevents investigative bodies from entering West Papua, there is a major crackdown on information surrounding these incidents.

In the last presentation, David Whtye connected what he labeled the “predatory extractivism form of industrial development” with the ongoing human rights violations as well as gender and racial violence in West Papua. The Indonesian government has attempted to legitimize its actions under the pretext of racial stereotypes. Whyte cited a recent protest at the Indonesian Supreme Court in which activists from the local community demanded that the development of palm oil be suspended. Previously, a moratorium was implemented, but it has since been lifted. The speaker further addressed

climate crime, primarily underlining the effects of the new Wabu Block gold mine and the Trans-Papua Highway. An Amnesty International study11 found that between 2020 and 2021, 12 people had been killed unlawfully as a result of these conditions in Indonesia. In recent years, the Indonesian military has also regularly conducted drone and rocket strikes on villages, increasing displacement levels.

Additionally, Whyte mentioned that the palm oil expansion results in the loss of forestry12, leading to soil erosion, the destruction of the island’s unique biodiversity, as well as the loss of the carbon sink.

The speaker pivoted to a discussion on additional involvement by foreign entities. He noted that British Petroleum (BP) and a Chinese national oil company currently invest in West Papua’s gas industry at the Tangguh LNG liquified natural gas plant in the Bay of Boni. Consequently, these companies’ actions disrupt ancestral grounds and engender further offenses. This particular conflict reached a boiling point in 2011 when the BP-funded Security Forces conducted Operation Sweep and Crush13 in which over 140 people were detained and seven people were executed in extrajudicial killings. Although the definition of climate crimes does not encompass these human rights abuses, Whyte ultimately argued that the international law community should broaden its understanding of climate crimes.

In the final section of the webinar, panelists brainstormed potential legal responses by non-governmental organizations to the situation in West Papua. Fadjar Schouten-Korwa indicated that the primary obstacle to defending the indigenous Papuan population is their lack of political power. She also emphasized the necessity of incorporating indigenous knowledge in counteracting environmental degradation. Szilvia Csevár added that decolonization never fully occurred, as the “Act of Free Choice” violated the Indonesian Constitution. Although the UN Declaration on the Rights of Indigenous Peoples constituted a significant historical achievement, it remains a “soft instrument” to end the human rights abuses in West Papua because it lacks enforcement power contrary to a treaty. David Whyte identified the crucial role of environmental defenders in advocating for Papuan rights. By empowering these activists and adhering to the Aarhus Convention14, Whyte believed the increased transparency around environmental information would make these Indigenous struggles visible. He reiterated international law’s major lack of enforceability under its current terms. Additionally, despite recent European trends of bringing class action lawsuits against multinational corporations involved in committing atrocities, this is not the case for West Papua. However, Whyte cited the European Union, OECD, G20, and G7 as possible actors that could intervene as they have previously regarding carbon and conflict minerals. In concluding the panel discussion, Csevár and Whyte emphasized the importance of a popular movement in terminating gender-based violence and climate crimes in West Papua. A recording of the webinar can be viewed here: https://www.youtube.com/watch?v=PmSDoty1gtg&feature=youtu.be

 

Kaila Hall is an intern at IELR. She is a rising senior at Cornell University.

[1] ABA International. “Addressing Gender Based Violence and Environmental Crimes in West Papua”, 28 May 2024,  https://www.youtube.com/watch?v=PmSDoty1gtg&feature=youtu.be

[2] United Nations. “No. 6311 INDONESIA and NETHERLANDS.” United Nations Treaty Collection, United Nations, 15 Aug. 1962, treaties.un.org/.

[3] “Act of Free Choice.” International Parliamentarians for West Papua, www.ipwp.org/background/act-of-free-choice/.

‌[4] Free West Papua Campaign. “48 Years since the Act of No Choice.” Free West Papua Campaign, 2 Aug. 2017, www.freewestpapua.org/2017/08/02/56-years-since-the-act-of-no-choice/.

[5] “In West Papua, Thousands upon Thousands of Displaced People Lack Basic Life-Giving Services.” World Council of Churches, www.oikoumene.org/news/in-west-papua-thousands-upon-thousands-of-displaced-people-lack-basic-life-giving-services.

‌[6] Richard. “Death and Destruction Caused by Mining in West Papua, but Rio Tinto Denies Responsibility.” London Mining Network, 11 Apr. 2018, londonminingnetwork.org/2018/04/death-and-destruction-caused-by-mining-in-west-papua-but-rio-tinto-denies-responsibility/.

[7] United Nations. “United Nations Declaration on the Rights of Indigenous Peoples.” Human Rights Quarterly, vol. 33, no. 3, 2007, www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf, https://doi.org/10.1353/hrq.2011.0040.

‌[8] “Indonesian Constitution (1945, Consolidated) – Asian Human Rights Commission.” Asian Human Rights Commission, 2021, www.humanrights.asia/indonesian-constitution-1945-consolidated/.

‌[9] Bynum, Sindy Ajara, Laura Sorica, Elliott. “Papuan Independence and Political Disorder in Indonesia.” ACLED, 5 Oct. 2022, acleddata.com/2022/10/05/papuan-independence-and-political-disorder-in-indonesia/.

[10] Gardner, Toby, and Ylva Rylander. “Indonesia Makes Progress towards Zero Palm Oil Deforestation – but Gains in Forest Protection Are Fragile.” SEI, 15 Sept. 2022, www.sei.org/features/zero-palm-oil-deforestation/.

‌[11] Amnesty International. “GOLD RUSH” INDONESIA’S MINING PLANS RISK FUELING ABUSES in PAPUA. 2022, https://www.amnesty.org/es/wp-content/uploads/2022/03/ASA2152572022ENGLISH.pdf

[12] Jahic, Naida. “Forest Conservation for Food Security in West Papua.” The Borgen Project, 17 May 2023, borgenproject.org/food-security-in-west-papua/.

‌[13] Grimston, Eben Kirksey and Jack. “Indonesian Troops for BP Gas Project.” Www.thetimes.co.uk, 1 June 2024, www.thetimes.co.uk/article/indonesian-troops-for-bp-gas-project-30cfrwq7gh3. Accessed 1 June 2024.

‌[14] United Nations Economic Commission for Europe. “CONVENTION ON ACCESS TO INFORMATION, PUBLIC PARTICIPATION IN DECISION-MAKING AND ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS,” 25 June 1998, unece.org/DAM/env/pp/documents/cep43e.pdf.

State Department Releases 2021 Country Reports on Human Rights Practices

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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.

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

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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.

G7 Vows to Act on Corruption, Ransomware, Forced Labor, and Illicit Financing

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On June 13, 2021, at the conclusion of its meeting the G7 announced in its Communiqué joint action against several criminal and international enforcement matters.

Corruption, Illicit Financial Activities, and Misuse of Shell Companies

The Communique recognizes “the need action on corruption, including by sharing information on illicit financial activities, tacking the misuse of shell companies, and curtailing the ability of illicit actors to hide wealth.”

As part of its G7 Fact Sheet the Biden Administration underscored how on June 3, 2021 President Biden declared efforts to combat corruption a “core U.S. National interest,” and issued a National Security Student Memorandum on the Fight Against Corruption to elevate this effort.

The G7 Fact Sheet states the U.S. will tackle “the misuse of shell companies, limiting the ability of bad actors to launder dirty money in real estate purchases, improving corruption-related information sharing, and reforming foreign assistance to focus on anticorruption as a cross-cutting priority.” [1] The Fact Sheet says the U.S. welcomes the G7 commitment to take collection action in combatting corruption.

Ransomware

The Communique states the G7 reiterates its interest in stable and predictable relations with Russia.  In that regard, it states that it will “identify, disrupt, and hold to account those within its borders who conduct ransomware attacks, abuse virtual currency to launder ransoms, and other cybercrimes.”[2]   The Biden Administration’s G7 Fact Sheet states the transnational criminal enterprises committing ransomware leverage infrastructure, virtual currency, and money laundering networks.  They target victims worldwide, often operating “from geographic locations that offer a permissive environment for carrying out such malicious cyber activities.”

The G7 Fact Sheet states the international community –both governments and private sector actors – must cooperate to ensure that “malicious cyber activity is investigated and prosecuted, that we bolster our collective cyber defenses, and that States address the criminal activity taking place within their borders.”

Removing Forced Labor from Global Supply Chains

The Communique expresses concern about the use of all forms of forced labor in global supply chains, including state-sponsored forced labor of vulnerable groups and minorities and supply chains of the agricultural, solar, and garment sectors – the main supply chains of concern in Xinjiang, China.

G7 leaders agreed to uphold human rights and international labor standards, and protecting individuals from forced labor.  Hence, they commit to ensuring all global supply chains are free from the use of forced labor.  They propose to identify areas for increased cooperation and collective efforts to eradicate the use of all forms of forced labor in global supply chains, in accordance with international and national law.[3]

International Human Rights Concerns

The Communique mentions concerns about international human rights violations in Russia, Belarus, Myanmar, and Ethiopia’s Tigray region.

Analysis

The commitments in the G7 Communique to stronger international enforcement initiative are importance for setting and reinforcing international enforcement cooperation.  The nature of the G7 meetings and communiques limit the commitments to broad policy statements.  The follow up comes from action by international organizations, such as the EU, the OECD, the World Bank Group, and national governments. The limits of the Communiques are inability to implement the broad policy decisions, including when governments and policies change from time to time.

 

[1]   G7 Communique, paragr. 48.

[2]   G7 Communique, paragr. 51.

[3]    G7 Communique, paragr. 29.

U.S. Secretary of State Makes Historic Visit to Suriname and Guyana and Promises More Law Enforcement Assistance

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On September 17-18, 2020, U.S. Secretary of State Michael Pompeo made the first visit to Suriname and Guyana.  It coincided with promises that the U.S. would increase its technical assistance with respect to law enforcement and national security issues in both countries.

   Suriname

With respect to Suriname Secretary Pompeo traveled there on September 17 and met with President Chandrikapersad “Chan”  Santokhi , and key members of his cabinet. Santokhi was elected in July.

As part of his travel, the State Department issued a statement underscoring existing U.S. assistance to combat narcotics trafficking.  The statement noted that Suriname participates in various programs funded by the State Department’s Bureau of International Narcotics and Law Enforcement (INL) in an effort to stop the use of Suriname as an intermediary jurisdiction for drugs and other contraband.

The State Department has engaged in training for Suriname’s Port Control Unit, which seized more than 3000 kg. of cocaine in 2019, including a 2,300 kg seizure, one of the largest in Suriname’s history.

In addition, the U.S. government has committed more than $600,000 towards an anti-money laundering risk assessment, which identifies vulnerabilities in Suriname’s anti-money laundering (AML) regime.  The Financial Action Task Force requires a national risk assessment by each country because at both country and financial institution levels  AML must be conducted on a risk-based assessment (RBA).  The RBAs by financial institutions must depend on the national risk assessment.  Although Suriname is comparatively small in population and economy, it has a large territory and multiple sources of risks of laundering, such as informal gold mining, narcotics and gold smuggling from Venezuela and other neighboring countries, human trafficking, and the use as casinos in Suriname as a vehicle to launder.

The State Department has congratulated the fact that Suriname voted in free and fair elections and has apparently shown it wants to take a new direction based on transparency, rule of law, and democracy.  To support the new direction, the U.S., in addition to increasing trade and investment, is deepening its security relationship and supporting Suriname’s economic growth.  The State Department says it is prepared to help Suriname and its engagement with the international Monetary Fund and other international financial institutions.  In early February, it was revealed that $100 million in private citizens’ savings had disappeared from the Central Bank of Suriname (CBvS).[1]

The new Surinamese President is a former justice minister and police commissioner.  The loser of the election, president Desiré “Desi” Bouterse took power through a coup.  He has been convicted of narcotics trafficking in the Netherlands and is convicted in Suriname for ordering the execution of political opponents in 1982.[2]

The U.S. State Department has recognized that Suriname’s leaders and civil society must establish sustainable models to extract natural resources transparently and safely and use the resources to benefit the Surinamese people.  According to the State Department’s press release, U.S. investment in Suriname’s gold sector offers a model.  The State Department aims to work with Suriname to combat corruption.

In a brief press conference the two leaders fielded questions mainly concerning potential U.S. political and military pressure on Venezuela and the role of China in the region.

Guyana

On September 17, 2020, Secretary Pompeo also visited Guyana. After much controversy over the election of March 2 between incumbent David Granger, and Irfaan Ali, Granger challenged the results for months.  Granger eventually relinquished his challenged after the U.S. imposed sanctions on members of Granger’s administration for undermining democracy.[3]

The State Department issued a statement for the Guyana visit.  Pursuant to the Caribbean Basic Security Initiative, the U.S. provides technical assistance to Guyana on law enforcement professionalization, strengthening the rule of law, and combating transnational crime.  In particular, the assistance has focused on increased training for crime scene investigators, forensic video analysis, trial advocacy, and the development of a curriculum for continuing education programs for magistrates.  The program also focuses on training prosecutors and magistrates on implementing maritime security law.  The training has resulted in more criminal prosecutions and convictions and faster adjudications.

The State Department has assisted in training Guyana’s Port Control Unit to combat the trafficking of cocaine and other illicit goods through Guyana.  The U.S. Coast Guard provides training and mentoring to the Maritime Administration Department (MARAD) in order to improve port security.  The U.S. military trains the Guyana Defense Forces personnel annually.  The training includes a current student at the U.S. Coast Guard Academy.

After Secretary Pompeo’’s visit, a bilateral Shiprider Agreement will come into force, enabling joint maritime and airspace patrols to interdict narcotics.  The U.S. government has recently given $200,000 in equipment and interceptor boat parts to strengthen Guyana’s ability to patrol its territorial waters.

The U.S. has helped the development of Guyana’s energy sector through technical partnership on best practices for energy sector policy, regulation, and revenue management.  The U.S. Department of the Treasury’s Office of Technical Assistance supports training and development within the Guyana Revenue Authority’s Large Taxpayer Division. These recommendations will help Guyana.

Early in Ali’s administration racial tensions have arisen.  On September 6, badly mutilated bodies of two cousins, Isiah and Joel Henry, both black teenagers, were discovered in a field. Thereafter, in an apparent reprisal killing a 17-year-old Indo-Guyanese boy was found chopped and beaten to death.[4]

Meanwhile, overhanging the visit are mounting tensions between Venezuela, the neighbor of Guyana and Suriname.  Guyana and Venezuela have had a 120-year dispute over their boundary and now the matter is in the International Court of Justice (ICJ).  Two years ago Venezuela seized Guyanese ships and disputes jurisdiction of the ICJ.[5]  The disputed Essequibo area represents about two-thirds of Guyana’s 83,000 square miles.[6]

In the recent past U.S. initiatives towards the Caribbean have been in response to U.S. national security: in the 1980s the civil wars in Central America, the leftist administration of Maurice Bishop in Grenada, narcotics trafficking; more recently, counter-terrorism, money laundering, and human trafficking.  The next issue of the IELR will discuss these developments in more detail.

[1]    Dr. Scott MacDonald, Suriname and the Need for Good Governance March 10, 2020, CSIS, https://www.csis.org/analysis/suriname-and-need-good-governance.

[2]    Jacqueline Charles, Pompeo makes history as first U.S. secretary of state to visit Suriname and Guyana, Miami Herald, Sept. 16, 2020.  With Pompeo trip, oil boom raises focus on Guyana, Suriname, France24, Sept. 17, 2020.

[3]    With Pompeo trip, oil boom raises focus on Guyana, Suriname, supra.

[4]    Charles, supra.

[5]    Molly Quell, Border Dispute Between Guyana, Venezuela Hits UN Court, Courthouse News Service, June 30, 2020.

[6]    Charles, supra.

U.S. Treasury Implements Sanctions against ICC Chief Prosecutor and Head of Cooperation Unit

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On September 2, 2020, the United States Department of the Treasury added to the list of Specially Designated Nationals Fatou Bensouda, the Chief Prosecutor of the International Criminal Court (ICC), and Phakiso Mochochoko, the Head of the Jurisdiction, Complementarity and Cooperation Division.

The Treasury notice implements the executive order issued on June 11, 2020, by United States President Donald J. Trump imposing sanctions on “certain persons associated with the International Criminal Court.”

The Executive Order states the U.S. will impose tangible and significant consequences on those responsible for the ICC’s misconduct. They may include the suspension of entry into the U.S. of ICC officials, employees, and agents, as well as their immediate family members.

Even before the issuance of the Executive Order, the U.S. government had already revoked the visa of the ICC’s chief prosecutor, Fatou Bensouda. The Executive Order and sanctions may hinder the ICC’s recruitment of personnel.

The initial implementation selects the chief prosecutor and the individual in charge of enforcement cooperation.  A major weakness of the ICC is its lack of its own police force, so that it cannot actually arrest an individual.

It remains to be determined how broadly the executive branch will apply the sanctions.  This will be a major focus of persons interested in the court and in accountability for war crimes and crimes against humanity.  The imposition of sanctions is a setback to the effort to hold perpetrators of crimes meriting universal jurisdiction accountable.  The sanctions constitute an attack on international and national judicial independence.  It sets a bad example for the rest of the world at the very time when democracy is in jeopardy and the world community is struggling to bring accountability for war crimes and crimes against humanity in longstanding conflicts, such as those in Afghanistan, Syria, Libya, and Yemen.

The sanctions undermine longstanding U.S. foreign policy to emphasize the rule of law and bring peace and stability by holding alleged perpetrators of crimes of universal jurisdiction accountable as well as prioritize international human rights.  Especially when the sanctions are considered in the context of the U.S. still holding persons for twenty years in Guantanamo without trial, the sanctions will also hamper the ability of the U.S. to obtain international enforcement cooperation, especially from its allies.

During its annual meeting last month, the American Bar Association adopted Resolution 114, urging all national governments to “observe, respect, and protect the independence of the International Criminal Court.”  It also “condemns threats by governments to the International Criminal Court and its officers and personnel in the performance of their duties.”  Prior ABA policies and statements on the ICC  and a timeline of the US-ICC relationship show that the ABA has from the start supported the operation of the ICC and U.S. proactive participation in it.   The ABA ICC project’s board members, including former U.S. War Crime Ambassadors and a former Nuremberg prosecutor, have also written opinion pieces the Project’s board members wrote about the sanctions.

The implementation of the Executive Order against the ICC will further alienate U.S. relations with its closest allies, who are making contingency plans for the potential that Donald J. Trump may be re-elected.  On July 17, 2020, European Union High Representative/Vice-President Josep Borrell made a statement on United States sanctions.  He referred specifically to the U.S. unilateral sanctions against the ICC.  Borrell said sanctions against those involved in the work of the ICC, its staff, and their families, as well as persons associated with the ICC, are unacceptable and unprecedented in scope and content.

 

EU Expresses Deep Concern Over Growing U.S. Unilateral Sanctions against EU Interests

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On July 17, 2020, European Union High Representative/Vice-President Josep Borrell made a statement on US sanctions.

Borrell Statement

He said  he was “deeply concerned at the growing use of sanctions, or the threat of sanctions, by the United States against European companies and interests.”

He said the EU has observed this developing trend in the cases of Iran, Cuba, the International Criminal Court and most recently the Nordstream 2 and Turkstream projects.

According to Mr. Borrell, “(a)s a matter of principle the European Union opposes the use of sanctions by third countries on European companies carrying out legitimate business. Moreover, it considers the extraterritorial application of sanctions to be contrary to international law.”

Borrell continued that Europe and not third countries should determine European policies.

Appropriately Borrell continued that, where countries share common foreign and security policy goals,  great value is realized in the coordination of targeted sanctions with partners.  The EU has experienced many positive examples of this.  The EU will continue to coordinate where it  can.

Perhaps, most importantly, Borrell underscored that “where policy differences exist, the European Union is always open to dialogue. But this cannot take place against the threat of sanctions.”

Analysis

The Borrell statement occurs against the background of friction over EU efforts to trade with Iran.  On August 28, 2019, the EU  announced that its INSTEX mechanism to facilitate trade with Iran was operational.  The EU informed participants that INSTEX was available to all EU member states.  The first transactions were being processed, said an EU statement.  The establishment of INSTEX  shows the EU is serious about alleviating the pain of sanctions on Iran in order to persuade Iran to remain in the 2015 Joint Comprehensive Plan of Action (JCPOA).  However, until now, it has facilitated very few transactions.

The Borrell announcement also comes on the heels of an 18-page proposed economic and security partnership between China and Iran that would clearly violate U.S. unilateral sanctions against Iran.

The current issue of the International Enforcement Law Reporter will discuss these and other implications of the statement in more detail.

Global Fragility Act Aims to Stabilize Conflict Zones and Prevent Wars

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On December 19, 2019, the United States Congress adopted the historic bipartisan Global Fragility Act (GFA), establishing the first-ever U.S. government strategy to tackle alarming levels of global violence around the world. The violence is causing unimaginable suffering and instability with almost 70 million people around the world trying to flee the violence.

The Act requires the administration to develop a strategy to prevent violence in fragile states.  By creating a process to identify the causes of conflict and reallocating resources to respond to them, the GFA will help prevent violence more effectively and reduce its enormous cost on families and communities.

The GFA directs the State Department to start the Interagency Global Fragility Initiative to stabilize conflict-affected areas and prevent violence globally.  It creates funds to support these efforts.

The State Department must prepare a plan for the initiative, including its organizational structure and goals.  The State Department must lead in development, humanitarian, and non-security policies.  Other departments and agencies, including the Department of Defense, will provide support as required.

The State Department must select priority countries and regions that are especially at risk, and report to Congress 10-year plans for each.  The plan must include information, including descriptions of goals, plans for achieving such goals, and benchmarks for measuring progress.

The State Department must report to Congress every two years concerning the initiative’s progress. The Government Accountability Office must consult Congress every two years about opportunities to assess the initiative and recommend improvements.

The Act establishes the Stabilization and Prevention Fund (SPF) to support efforts to stabilize conflict-affected areas, including areas at risk from the Islamic State of Iraq and Syria or other terrorist organizations.  The Act authorizes $200 million annually over five years for the SPF.

The Act creates the Complex Crises Fund (CCF) to support programs to address   emerging, unforeseen, or complex challenges abroad.  The Act authorizes $30 million annually over five years for a CCF.

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

The American Society of International Law is holding a panel on the Act on Tuesday, February 25, 2020 from 6:00 -8:00 at the ASIL Headquarters, Tillar House (2223 Massachusetts Ave, N.W.).  Registration if free and open to the public.  For more information and registration, go to www.asil.org/events.

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