IELR Blog

Official Blog of the International Enforcement Law Reporter

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.

The UK and US sanction Russian Agents and Entities Over Alexei Navalny Poisoning

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On August 20, 2021, the United Kingdom imposed sanctions on seven Russian agents for their involvement in poisoning Alexei Navalny, a Russian political oppositionist and anti-corruption activist. These sanctions come on the anniversary of Navalny’s poisoning on August 20, 2020. He was poisoned with  Novichok, a nerve agent, that left him hospitalized and in critical condition.

In a joint statement with the U.S., the U.K. imposed sanctions against  7 Russian nationals alleged to have poisoned Navalny with a nerve agent. “The sanctioned individuals are directly responsible for planning or carrying out the attack on Mr. Navalny in Tomsk on [August 20, 2021],” the U.K. press release stated.

The U.K. sanctions include names of members of the FSB Security Service that were implicitly or explicitly involved in the posing. The names include Alexey Alexandrov, Vladimir Bogdanov Ivan Osipov, Kirill Vasilyev, Stanislav Makshakov and Alexei Sedov, and Vladimir Panyaev.

The sanctions include an asset freeze and travel bans against the agents and are included in the UK Autonomous Chemical Weapons sanctions regime. The UK Foreign Secretary Dominic Raab said that “through our chemical weapons sanctions regime and at the Organisation for the Prohibition of Chemical Weapons, we are sending a clear message that any use of chemical weapons by the Russian state violates international law, and a transparent criminal investigation must be held.”

The recent sanctions are not the first time the UK imposed sanctions against Russia. In October 2020, UK slapped sanctions against six personnel and an entity for their alleged involvement in masterminding the poison operation against Navalny.

The U.S. Sanctions

The U.S. also imposed sanctions on two separate individuals and four Russian entities allegedly involved in the assassination plan against Navalny.

The U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) released a press statement that stated that “OFAC is designating nine Russian individuals and two Russian entities involved in Navalny’s poisoning or Russia’s chemical weapons program.” The sanctions make the third time the Treasury department issues sanctions in response to the Novichok poisoning or Russia’s chemical program.

The U.S. Department of State also sanctioned two entities, specifically the Russian Ministry of Defense scientific laboratories, involved in producing chemical weapons for Russia. The sanctions are consistent per the U.S. Chemical and Biological Control and Warfare Elimination Act of 1991.

The Office of Foreign Assets Control Director Andrea Gacki stated in a press statement that the U.S. stands with the U.K. allies to “again condemn the Kremlin’s use of a chemical weapon to target one of Russia’s most prominent opposition leaders.” Gacki continued and said that the Navalny assentation attempt is a “shocking violation of international norms against the use of chemical weapons and was part of an ongoing campaign to silence voices of dissent in Russia.”

Russia denies their U.S. and U.K. claims and said that the sanctions are simply a smear campaign.

With respect to Global Magnitsky sanctions, the U.S., U.K., European Union, and other countries, such as Canada and Australia, are coordinating their sanctions.

The G-7 Communique from the London meeting referred to the G7 joint statement of January 26 on the arrest, sentencing and detention on politically-motivated charges of Alexey Navalny.

U.S. and EU Progress on Several International Enforcement issues at Justice & Home Affairs Ministerial Meeting in Lisbon

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On June 22, 2021, the Portuguese Presidency of the Council of the European Union hosted the EU-U.S. Ministerial Meeting on Justice and Home Affairs in Lisbon and made progress on count-terrorism, violent extremism, Passenger Name Record (PNR) data exchange.  They also discussed developing bilateral and multilateral instruments to combat cybercrime, using artificial intelligence,  and developing well-managed and humane migration policies.

Overview

They underscored the need to cooperate against terrorism, including prevention, permanent vigilance, adaptation, and resilience from all relevant actors.

The U.S. and EU underscored their strong concern with the rise of violent extremism.  They cited crimes inspired by hate speech, racism and xenophobia both in Europe and the U.S.  Violent extremism constitutes a direct threat to democratic societies.  It requires renewed attention by law enforcement, judicial authorities, the private sector and civil society.  The U.S. and EU pledged to expand their information exchanges on violent extremist groups, especially those with transnational linkages.

The U.S. and EU underscored the importance of the Passenger Name Record (PNR) data exchange to prevent, detect, investigate and prosecute terrorism, combat serious crime, including child exploitation, and protect the safety of citizens.

Digital Aspects and Cybercrimes

The U.S. and EU discussed the need to cooperate to shape a digital future based on their shared democratic values.  They acknowledged the potential benefits and risks of suing Artificial Intelligence technologies for law enforcement and the judiciary.  They discussed the need to develop and use such technologies in a trustworthy way in conformity with human rights obligations.

They discussed current and upcoming EU efforts on combating illegal content online, including  the need to improve the cooperation between the authorities and online platforms to detect ongoing criminal activity.  The U.S. and  EU pledged to continue cooperating to most effectively exercise their lawful authorities to combat  serious crime both online and offline.

The two sides will focus on combating ransomware, including through law enforcement action, raising public awareness on how to protect networks, the risks of paying criminals responsible, and encouraging those states that have not cooperated to arrest and extradite or effectively prosecute criminals on their territory.

Concerning bilateral and multilateral instruments to combat cybercrime, the U.S. and EU reinforced their commitment to negotiate as soon as possible an Eu-U.S. agreement facilitating access to e-evidence to cooperate in criminal matters.  They welcomed the recent approval by the Committee of State Parties to the Budapest Convention of the draft text of the Second Additional Protocol of the Budapest Convention, which is the main instrument for international cooperation on cybercrime.   They observed the framework of negotiations on a possible future United Nations international legal instrument on cybercrime and committed to continue to closely coordinate their respective positions.

Migration and Travel

The two sides underscored the importance of well-managed and humane migration and discussed their respective efforts to develop comprehensive and enduring migration and asylum policies.  Humanitarian protection should be available to qualifying persons.  Unmeritorious claims must be detected quickly, including through information sharing and modern identity management techniques.  Unmeritorious claims must be prevented from overwhelming migration systems or public confidence in them.

The agenda requires cooperation with third countries of origin, transit and destination.  These jurisdiction also have a responsibility to discourage people from enlisting smugglers and traffickers and endangering  the lives of migrants who take dangerous, irregular journeys.  Both sides reaffirmed their interest in expanding the transatlantic dialogue on migration and mobility, focusing on sharing lessons learned, exploring complementary pathways to migration, addressing the root causes of migration, improving the return and readmission of irregular migrants and enhancing cooperation in and combatting migrant smuggling.

The U.S. and EU continued to endorse safe and secure mobility and the exchange of information on their respective measures towards the gradual resumption of non-essential international travel.  Both sides pledged to restart secure travel between the U.S. and EU as soon as possible, based on the principles of mutual cooperation, efficient operation of the international travel system and scientific evidence.

Analysis

The initial meeting of the Justice and Home Affairs Ministers of the two sides during the Biden Administration went quite well.  Clearly, the priority of the Biden Administration for bilateral and multilateral cooperation contrasted with the America 1st unilateral approach of the Trump Administration.  The visit of President to the NATO meeting and the EU itself as well as his removal of tariffs and support for the minimum global taxation and other initiatives of the OECD and EU were well received.

The threats of terrorism, organized crime, extremist and hate groups, cybercrime, and illegal migration are common to both sides.

The current issue of the IELR will have a more in depth discussion of the implications of the meeting.

 

 

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.

ANOM: A global covert investigation conducted through an encrypted app trap

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Sara Kaufman[1]

On June 8, 2021, the Federal Bureau of Investigation (FBI) and Australia’s Federal Police (AFP) publicly announced the arrests of more than 800 individuals utilizing a FBI-controlled encrypted platform to facilitate their criminal activities.[2]  ANOM, a highly popular encryption platform amongst criminals worldwide, was secretly used as a surveillance tool in an investigation known as “Operation Trojan Shield” in order to discreetly observe and curtail the criminal activities in Australia and beyond.[3]

As technology has grown over the years, criminals have utilized hardened encrypted devices as a tool to obstruct any federal investigations against them.  Encrypted devices are tools that both send and retrieve encrypted electronic communications, allowing criminals to openly discuss their activities with confidence that their contents will remain secure.[4]  For many years, contents in encrypted devices did in fact remain secure; communication was often limited to a self-selected group of individuals using the same encryption platform.  Law enforcement agents therefore would be unable to collect evidence regarding the conversations that criminals were having on their encrypted devices.

Companies that provided these encrypted devices were generally aware that their target audience is utilizing their products for criminal activity; in March 2018, the CEO of Phantom Secure, Vincent Ramos, and four other principals of the company were indicted for aiding and abetting the distribution of cocaine.  During his plea hearing in October 2018, Ramos admitted that Phantom Secure laundered drug trafficking proceeds, as well as aided and abetted the importation, exportation, and distribution of illegal substances across international borders.[5]  Phantom Secure was not the first, nor would it be the last, of the many encrypted devices to appear on the black market to plan and executive criminal activity.

 

Operation Trojan Shield

While the FBI previously dismantled hardened encryption companies utilized amongst criminals to communicate – such as Phantom Secure – new platforms would emerge as substitutes for their predecessors.  In “Operation Trojan Shield,” various European law enforcement agencies, the FBI and AFP collaborated with a confidential source to construct, market, and upkeep the next encrypted communication platform to arise on the black market.[6]

The devices themselves were encrypted but the FBI, AFP, and the confidential source collaborated to build a master key into the existing encryption system.[7]  This allowed law enforcement to decrypt and store messages as they were transmitted.  For devices located outside of the U.S., an encrypted “BCC” of each sent message is routed to an “iBot” server located outside of the U.S.  The message is then decrypted with the master key and then immediately re-encrypted with the FBI encryption code.  The newly encrypted message is then passed to a second FBI-owned iBot server to be decrypted for viewing within the U.S.[8]  Given the high level of technical care and expertise needed to set up this master key process, the collaboration between the FBI, AFP, confidant, and other European law enforcement agencies was needed to ensure that ANOM could be launched effectively and discreetly within criminal networks.

ANOM could only be used on devices sold within the black market and were stripped of the ability to make calls or send emails.  In order to get a hold of an ANOM-encrypted device, each criminal had to be green-lighted by another criminal who was already using the software.[9]  Each ANOM user was identified by a Jabber Identification – similar to a smartphone PIN – was chosen by each user to identify themselves as opposed to using their real names.[10]  The high level of exclusivity and security behind ANOM increased the confidence that users that their communications would remain private.

Results of the investigation

As high-profile criminals such as Hakan Ayik praised ANOM and encouraged its use to their associates, thousands of criminals worldwide began utilizing ANOM devices to openly discuss their activities.  Between October 2019 and May 2021, a total of 11,800 ANOM devices were registered in over 90 countries, with the highest number of users based in Germany, the Netherlands, Spain, Australia, and Serbia.[11]

Considering the strong reputation that ANOM had amongst criminals, plans to import, export, or distribute drugs were sent between encrypted devices without the use of coded language.[12]  Text messages shown in a search warrant affidavit filed May 18, 2021, display open conversation regarding cocaine hidden in French diplomatic packages or underneath layers of bananas in shipping trucks.[13]

Through the surveillance of ANOM users, law enforcement agencies from the U.S., Australia, and the European Union were able to seize numerous tons of drugs and millions of dollars in cash.[14]  Australian police officers also claim to have acted on 20 “threats to kill,” thereby protecting many innocent civilians who may have otherwise lost their lives.[15]

Although the criminals that utilized ANOM encrypted devices strongly advocated for their high level of security, this could not be further from the truth.  The review of messages sent on ANOM devices has opened numerous high-level public corruption cases internationally, as well as investigations of distributors for money laundering, international drug trafficking, and obstruction of justice.[16]

While new encrypted platforms used to emerge once their predecessors were taken down by the FBI, Operation Trojan Shield severely damages the trusted foundation of encrypted devices for communications amongst criminal actors.  Though the use of new technology such as encryption devices has allowed discreet criminal activity to go undetected, law enforcement across the globe has proven that, with joint efforts, they can utilize the same tools for their benefit.

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

[1] Legal assistant, Berliner Corcoran & Rowe LLP; B.A., Amherst College.

[2] Rachel Pannett and Michael Birnbaum, FBI-controlled ANOM app ensnares scores of alleged criminals in global police sting, The Washington Post, June 7, 2021, https://www.washingtonpost.com/world/2021/06/08/fbi-app-arrests-australia-crime.

[3] Cheviron Aff. ¶ 14, May 18, 2021. https://www.justice.gov/usao-sdca/press-release/file/1402426/download.

[4] Cheviron Aff. ¶ 9, supra.

[5] Cheviron Aff. ¶ 10, supra.

[6] Ben Westcott, For years, the underworld thought its phones were safe. They fell for an encrypted app trap, CNN, June 9, 2021, https://www.cnn.com/2021/06/08/australia/afp-fbi-ANOM-app-operation-ironside/index.html.

[7] Cheviron Aff. ¶ 13, supra.

[8] Id.

[9] Ben Westcott, supra.

[10] Cheviron Aff. ¶ 14, supra.

[11] Cheviron Aff. ¶ 19, supra.

[12] Cheviron Aff. ¶ 29, supra.

[13] Cheviron Aff. ¶ 14, supra.

[14] Ben Westcott, supra.

[15] ANOM: Hundreds arrested in massive global crime sting using messaging app, BBC.COM, June 8, 2021, https://www.bbc.com/news/world-57394831.

[16] Cheviron Aff. ¶ 20, supra.

President Biden Revokes Executive Order Imposing Sanctions on the International Criminal Court

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On April 1, 2021, United States President Joseph R. Biden terminated the national emergency declared in Executive Order 13928 of June 11, 2020, which blocked property of certain persons associated with the International Criminal Court (ICC).

Biden Executive Order

The new Executive Order explained that the U.S. continues to object to the ICC’s assertions of jurisdiction over personnel of such non-States Parties as the U.S. and its allies without their consent or referral by the United Nations Security Council.  President Biden said the U.S. “will vigorously protect current and former United States personnel from any attempts to exercise such jurisdiction, the threat and imposition of financial sanctions against the Court, its personnel, and those who assist it are not an effective or appropriate strategy for addressing the United States’ concerns with the ICC.”

Statement by U.S. Secretary of State Antony J. Blinken

On April 2, 2021, U.S. Secretary of State Antony J. Blinken in a press statement explained that, as a result of the new Executive Order, the U.S. has removed the sanctions imposed by the prior administration against ICC Prosecutor Fatou Bensouda and Phakiso Mochochoko, the Head of Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor.

According to Blinken, the U.S. continues to disagree strongly with the ICC’s actions concerning the Afghanistan and Palestinian situations.  Blinken also reiterated the U.S. government’s objection to the ICC’s efforts to assert jurisdiction over personnel of non-States Parties such as the U.S. and Israel.  Blinken continued that the U.S. concerns about these cases would be better addressed through engagement with all stakeholders in the ICC process rather than through the imposition of sanctions.

According to Blinken, U.S. support for the rule of law, accesses to justice, and accountability for mass atrocities are significant U.S. national security interests that are protected and furthered by engaging with the rest of the world to meet the challenges.  The U.S. government leadership was important in forming the Nuremberg and Tokyo Tribunals after World War II and bringing accountability in the Balkans, Cambodia, Rwanda and elsewhere.  The U.S. government leadership has supported various international, regional, and domestic tribunals, and international investigative mechanisms for Iraq, Syria, and Burma, to bring justice for victims of atrocities.

Blinken mentioned the U.S. is encouraged that States parties to the Rome Statute are considering a large range of reforms to assist the ICC prioritize its resources and to achieve its core mission of serving as a court of last resort in punishing and deterring atrocity crimes.

Litigation against Trump’s Executive Order Authorizing Sanctions on Officials of the ICC

The Biden Executive Order precedes by days a deadline on April 5 for the Biden administration to respond to a lawsuit by civil society (Open Society Justice Initiative) and law professors challenging the constitutionality of the executive order.  In October, the OSJI and four law professors brought a lawsuit against the U.S. government in U.S. District S.D.N.Y., claiming that the executive violated their rights of free speech and association.  Some of the professors worked in various capacities for the ICC prosecutor and victims of alleged atrocities.

Already, the Biden administration decided not to appeal a preliminary injunction the court issued in the litigation barred the implementation of the Executive Order.

The American Civil Liberties union and several U.S. citizens also brought a lawsuit challenging the Trump Executive Order.  The Biden administration would have had to respond on April 9.

Analysis

The new Executive Order by President Biden and its timing illustrate the utility of the lawsuits.

The new E.O. and the Blinken statement also show an effort by the Biden administration to re-engage in acting against international atrocities and international human rights more generally.

The current issue of the IELR will have more discussion on these developments.

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.

 

US Appellate Court Rules Greek Ministry Can Protect Cultural Patrimony

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On June 9, 2020, the United States Court of Appeals for the Second Circuit concluded that there was no jurisdiction for the suit of the Saretta Barnet Trust Foundation and Sotheby’s Inc. against the Greek Ministry of Culture and Sports. The viability of the suit, which arose from Greece’s patrimony claims to a miniature horse figurine placed on auction by Sotheby’s, depended on the court’s interpretation of the commercial activities exemption to the Foreign Sovereign Immunities Act.  While the United States District Court for the Southern District of New York initially determined Greece’s claim was a commercial activity that exempted it from sovereign immunity, the Court of Appeals has remanded that decision.

The case hinged on the court’s interpretation of the Foreign Sovereign Immunities Act.  The Act states that a ‘foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607.’”  The exception at question in this lawsuit was section 1605 or the commercial-activities exception to FSIA.  Section 1605 reads, “A foreign state shall not be immune from the jurisdiction of courts of the United States … in any case … in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.”  The district court and the appeals court agreed that the third clause, or the “direct-effect clause,” was relevant in this case.

However, the appeals court and district court reached different conclusions of the direct-effect clause.  While the appeals court agreed that the “direct-effect clause” was the relevant clause of the commercial activities exception to consider in this case, it did not regard Greece’s act of sending a letter to be in connection with a commercial activity. It regarded it as a sovereign activity.  The court writes, “Identifying the activity in connection with which the letter was sent, as the statute requires, reveals its sovereign nature: Greece has claimed ownership over the figurine by adopting legislation that nationalizes historical artifacts and by enforcing those patrimony laws… Just as nationalization or expropriation of property is considered a sovereign activity rather than a commercial ‘claim of ownership’ by the foreign state, so too here Greece is acting in a sovereign capacity by enforcing laws that regulate ownership and export of nationalized artifacts.” In other words, the court determined that the act of sending a letter was an exercise of the state’s sovereign rights rather than a commercial activity.

The district court had previously determined that to send a letter claiming ownership was to “act… in connection with a commercial activity of the foreign state elsewhere.”  But the appeals court disagreed, stating that while this act could be a commercial activity in some circumstances, it was not a commercial activity in this particular case, due to the sovereign nature of the laws and rights invoked in the letter.

Furthermore, the appeals court pointed out that the district court’s interpretation necessarily regarded the act of sending the letter as the “precipitate act” as well as the effect, in which case clause three would no longer apply.  The decision reads, “If the letter were properly considered to be both the act and the commercial activity—that is, if Plaintiffs were seeking relief for a single, self-contained commercial activity—it would suggest that Plaintiffs should proceed under the first clause of the commercial activity exception, which authorizes suits ‘based upon a commercial activity carried on in the United States by the foreign state,’ rather than the direct-effect clause…” The interpretation of the district court would entirely negate the discussion of the direct-effect clause.     However, the Appeals court decided that the direct-effect clause was the applicable cause, because the letter was not a “single, self-contained activity.”

The appeal is a victory for the Greek government and the many supporters of efforts by sovereigns to bring actions in foreign courts to recover stolen cultural artifacts.  The Greek government had support in the way of amici. One amicus brief was filed by Laina Lopez of Berliner Corcoran & Rowe LLP on behalf of a coalition.  The amici include the Hellenic College Holy Cross Greek Orthodox School of Theology; the Antiquities Coalition; Ministry for Cultural Activities and Heritage and for Tourism for Italy; Department of Antiquities, Ministry of Transport, Communications and Works of Cyprus; and The United Mexican States.

 

 

The next issue of the IELR will have a more comprehensive article on the decision and its implications.

Bill to Curb INTERPOL Abuse Follows Helsinki Commission Hearing

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Helsinki Commission Chairman Rep. Alcee L. Hastings (FL-20) and Ranking Member Rep. Joe Wilson (SC-02) today introduced the Transnational Repression Accountability and Prevention (TRAP) Act in the House of Representatives. Helsinki Commission Co-Chairman Sen. Roger Wicker (MS) and Ranking Member Sen. Ben Cardin (MD) plan to introduce the TRAP Act in the Senate on Monday.

On September 12, 2019, the Commission on Security and Cooperation in Europe (CSCE), also known as the Helsinki Commission, convened a hearing on the Tools of Transnational Repression: How Autocrats Punish Dissent Overseas, focusing on the role of International Criminal Police Organization (INTERPOL).

Background

The Commission issued an explanation for the hearing, state that, as modern technology permits political dissidents and human rights defenders to operate from almost anywhere on the planet, repressive regimes have increasingly  tried to intimidate them. .

To silence dissent from abroad, autocrats often turn to INTERPOL to file bogus criminal claims seeking the arrest and extradition of their political targets. This abuse of INTERPOL Red Notices and Diffusions enables autocratic governments to harass and intimidate their opponents thousands of miles away, even within free and democratic societies.

The U.S. Helsinki Commission convened an expert panel to highlight how present-day autocrats use INTERPOL and other means such as surveillance, abduction, and assassination to punish dissent overseas. The witnesses  suggested how the United States and other democratic nations can defend against these threats to the rule of law domestically and internationally.

Opening Remarks

Sen. Roger Wicker (R-Ms) chaired the hearing.  He is the chair of the Commission and Vice-President of the OSCE Parliamentary Assembly.  He said INTERPOL can be manipulated by autocratic governments.  He said Red Notices and diffusions are constantly abused.  INTERPOL regularly receives requests for human rights defenders and journalists on trumped up charges, such as the Kremlin’s efforts to go after Bill Browder.  Russia has issued at least eight diffusions about Browder over a decade.  INTERPOL has not punished Russia.  In fact, last fall Russia proposed a candidate for Secretary General.

Before the hearing, the Commission received statements about persons targeted by Tajikistan, Uzbekistan, Turkey, and other governments.

Sen. Wicker will  introduce legislation on limiting the use in U.S. immigration and law enforcement of INTERPOL notices and requiring the State Department to report on trends and transnational repression in its annual Human Rights report.

According to Sen. Wicker, INTERPOL is in need of greater transparency.  The matter has been brought to the attention of the CSCE Parliamentary Assembly at its last meeting. The hearing will bring policy recommendations.

Senator Ben Cardin (D-Md.), a member of the Commission, commended Sen. Wicker’s role and said he looks forward to working with Mr. Wicker on his legislation.  Sen. Cardin noted that the Magnitsky statute has been expanded.  He lamented that the Magnitsky Act has not been sufficiently used against Saudi Arabia for the murder of the late Saudi journalist Jamal Khashogghi.

Rep. Joe Wilson (R-SC) and Sen. Sheldon Whitehouse (D-RI) also explained they supported the work of the hearing.

Testimony

The following witnesses testified:

Alexander Cooley, Director, Columbia University’s Harriman Institute for the Study of Russia, Eurasia, and Eastern Europe; Claire Tow Professor of Political Science, Barnard College, testified about harassment of political exiles and the denial to them of due process.  The rise of technology enables autocratic governments to intimidate political exiles more than ever.  Autocrats are networking to try to repurpose international organizations to meet their goals.  INTERPOL diffusion notices are mushrooming.  Azerbaijan, Venezuela, India, and Tajikistan are among the governments that abuse the diffusions.  The diffusion notices make it difficult for targets to travel and use bank accounts and it costs them significant legal fees to extricate themselves from the problems arising out of the diffusion notices.  The proposed Transnational Repression Accountability Procedures (TRAP) Act will help combat some of these dangers.  Cooley said the TRAP Act would send a powerful signal about the importance of maintaining clear international standards against the politicization of our most important international organizations.

Nate Schenkkan, Director for Special Research, Freedom House, discussed the global campaign by Turkey after the 2016 attempted coup.  It uploaded tens of thousands of diffusion notices, kidnapped 104 of its nationals from other countries (at least one was the wrong person although that person is still in jail), and cancelled thousands of passports.  The U.S. should support exiled political exiles and journalists, including diaspora in the U.S.  Schenkkan also endorsed

Freedom House will publish  a new study, documenting the transnational oppression and violence against political exiles.

Bruno Min, Senior Legal and Policy Advisor, Fair Trials (FT), testified that INTERPOL is not subject to oversight and hence the U.S. government’s role is very important.  A major issue is how INTERPOL reviews Red Notices.  We do not know how many Red Notices and diffusions are rejected and do not know what it would take to have INTERPOL review the requests more carefully.  We see many abuses against refugees with high public profiles. INTERPOL only has a staff of  about 30-40  persons to review 10,000 Red Notices and 50,000 diffusions each year.  Diffusions are not subject to the same scrutiny.  Hence, there is the risk that unchecked data will enter into national databases.

There is concern about procedures of the Commission for the Control of INTERPOL files (CCF).  INTERPOL has improved it and made it more independent.  FT has concerns about interpretation of INTERPOL’s rules with respect to international human rights.  INTERPOL has taken steps to protect persons who have been accorded refugee status.  However, INTERPOL needs to do more.

INTERPOL needs encouragement to implement the recent reforms and adopt more reforms.

A crucial issue is lack of funding and understaffing of INTERPOL, which makes them depend on member countries to do its  work at the risk of compromising its independence.

Sandra A. Grossman, Partner, Grossman Young & Hammond, Immigration Law, LLC, testified how autocratic governments are using the U.S. immigration system to abuse exiles.  U.S. Immigration and Customs Enforcement (ICE) uses Red Notice to detain people.  ICE treaties many Red Notices as conclusive evidence of criminality.  ICE and immigration judges use Red Notices to mistreat people.  ICE and immigration judges often become tools of corrupt governments, often detaining asylum applications. Jurisprudence and reports by CCF must be published so that more transparency exists about CCF.

Question and Answer

To Sen. Wicker’s inquiry, Grossman said the U.S. contributed $19.4 million and Japan, China, and Europe followed.  The U.S.  government is by far the greatest contributor.

At the end of the hearing, Sen. Wicker expressed hope that he and the U.S. Congress can do something about some of the abuses both in the U.S. law enforcement system and INTERPOL itself.

TRAP Act

Following reports that U.S. immigration authorities have cited such politically-motivated INTERPOL Red Notices and diffusions to detain some individuals and consider removing them from the United States, the TRAP Act formally codifies strict limitations on how INTERPOL requests can be used by U.S. authorities.

The TRAP Act further declares that it is the policy of the United States to pursue specific reforms within INTERPOL and use its diplomatic clout internationally to protect the rights of victims and denounce abusers. The bill requires the Departments of Justice, Homeland Security, and State, in consultation with other relevant agencies, to provide Congress with an assessment of autocratic abuse of INTERPOL, what the United States is doing to counteract it, and how to adapt United States policy to this evolving autocratic practice. The State Department would also be required to publicly report on the abuse of INTERPOL in its annual Country Reports on Human Rights to create a transparent, public record of these violations of the rule of law.

Original co-sponsors of the legislation include Helsinki Commission members Sen. Marco Rubio (FL), Sen. Cory Gardner (CO), Sen. Sheldon Whitehouse (RI), Rep. Steve Cohen (TN-09), Rep. Brian Fitzpatrick (PA-01), Rep. Richard Hudson (NC-08), Rep. Gwen Moore (WI-04), and Rep. Marc Veasey (TX-33). Rep. John Curtis (UT-03), Rep. Sheila Jackson Lee (TX-18), and Rep. Tom Malinowski (NJ-07) are also original co-sponsors.

U.S. Attorney General Announces Continued U.S. Funding of Law Enforcement Efforts at 3rd Ministerial of Northern Triangle Attorneys General, as Guatemala Prepares to Abolish Anti-Corruption Prosecutor

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On May 16, 2019, U.S. Attorney General William P. Barr, during the 3rd Ministerial of the Northern Triangle Attorneys General announced that, as part of a coordinated law enforcement action known as Operation Regional Shield,President Trump has approved continued funding for law enforcement efforts between the U.S. and the Northern Triangle countries (El Salvador, Guatemala, and Honduras).

In particular Barr said the U.S. will continue fund law enforcement efforts, through the ongoing work of the project’s law enforcement efforts, through the continuing work of the U.S. Office of Overseas Prosecutorial Development Assistance and Training (OPDAT) Resident Legal Advisors in each of the three countries, through the FBI’s Transnational Anti-Gang teams, through the Drug Enforcement Administration’s Sensitive Investigative Units, and through Homeland Security’s (HSI) work to counter human smuggling and trafficking.

Barr said the meeting has reaffirmed his belief that the safety of  the citizens of the U.S. and Northern Triangle is interdependent and together they will not only confront but will defeat the criminal gangs.

Inconsistency of U.S. Enforcement Policy with Northern Triangle Countries

In recent months the Trump Administration’s policy in terms of cooperation with the Northern Triangle has not been consistent.    For instance, on March 28, 2019, then Secretary of Homeland Security Kirstjen M. Nielsen signed, on behalf of the United States, a Memorandum of Cooperation (MOC) on border security cooperation in Central America.   Almost simultaneously, U.S. President Donald Trump said that he was planning on cutting U.S. assistance to the three countries and has threatened to close the border with Mexico.

The initiatives of the U.S. and other governments against transnational organized crime in Central America can be classified in eight areas: whole-of-government solutions; interdiction of criminal flows; targeting of transnational criminal organization leaders; use of the military in a domestic law enforcement; institutional reform within law enforcement; targeting the financial flows and resources of organized criminal groups; prison control and reform; and binational and multinational cooperation against organized crime. (See R. Evan Ellis, Transnational Organized Crime in Latin America and the Caribbean 103-4 (2018).

During his trip Barr highlighted DOJ priorities, including interdicting illegal narcotics, dismantling MS-13, the 18th Street Gang and other transnational criminal organizations, and combatting illegal migration and human trafficking. While in El Salvador, the Attorney General visited the International Law Enforcement Academy.

Effort of Guatemalan Morales Administration to End the Work of the International Commission against Impunty (CICIG)

One setback for the fight against anti-corruption is the effort by the current Guatemala Administration of Jimmy Morales to terminate the work of the International Commission against Impunty (CICIG), which the United Nations established to strength the efforts against organized crime and corruption after Guatemala’s 36-year civil war. See  Elisabeth Malkin, Latin America Risks Losing Potential Weapon Against Corruption,  N.Y. Times, May 19, 2009, at 10, col. 1.

On May 15, the Guatemala high court rejected the appeal of Thelma Aldana, a crusading former prosecutor, to participate in Guatemala’s presidential election.  As a result, at least two of the top three candidates, according to polls, will not be able to run in the election.  The decision on Aldana seemed to arise from fears over her zealous prosecutions of corruption in politics and business.  Aldana has been denied the right to participate in the election because she lacked a document accrediting that she did not have any outstanding accounts after she was responsible for public funds during her serving  as from her time as a former prosecutor.

The Trump Administration has not supported the CICIG, as prior U.S. Administrations have.  As a result Morales’ announcement to not renew the CICIG’s two-year mandate in September 2019 and his denial of Ivan Velázquez, the Colombian head of the Commission, in September 2018,  mean that, notwithstanding its strong record of prosecuting corruption and transnational organized crime, the lack of independent prosecutors in the Guatemalan government, and the importance of strong and independent prosecutors to better stabilize the security situation in Guatemala, the CICIG may well expire in September.  Indeed the enormous security problems due to the proliferation of gangs, gun violence, and corruption fuel migration from Guatemala.

 

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