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U.S.-El Salvador Sign Agreement to Force Asylum Seekers to El Salvador

September 23, 2019 by Bruce Zagaris Leave a Comment

On September 20, 2019, the United States and El Salvador governments signed a Protection Cooperative Agreement. The Acting Secretary of the U.S. Department of Homeland Security, Kevin K. McAleenan signed on behalf of the United States. The Minister of Foreign Affairs, Alexandra Hill Tinoco signed on behalf of El Salvador.

According to a joint statement, the Agreement recognizes El Salvador’s recent decision to join the Comprehensive Refugee Response Framework. It states it will use U.S. and international best practices to “enhance collaboration on building protection capacity and increase protection options closer to home for vulnerable populations.”

The two governments commit to responding to “the issue of irregular migration in a joint and humane way that will contribute to greater prosperity and security of the region.” The Agreement shows the partnership between both governments “to discourage dangerous irregular migration across Central America toward the U.S. and to combat transnational criminal organizations, strengthen border security, and reduce human trafficking and smuggling.”

Once the Agreement becomes effective, it will further expand the capacity of protection systems in the region. The joint statement does not state when the agreement will take effect and what will be required. The U.S. and Guatemala signed a similar agreement in July in the waning days of the Jimmy Morales Administration. However, the Guatemala Constitutional Court ruled that the Parliament must approved the policy before it takes effect.

The Cooperative Agreement follows the Letter of Intent signed by Acting Secretary McAleenan with the Government of El Salvador last month in San Salvador to intensify bilateral cooperation in key areas.

A leading journal in El Salvador observes that the country with the most asylum applicants in 2018 has now agreed to accept asylum applicants that Trump rejects.

The joint statement expresses that “(i)n recent months, Acting Secretary McAleenan has also forged partnerships with Mexico, Guatemala, El Salvador, Honduras and Panama to disrupt human and drug smuggling operations and address the crisis at the U.S.-Mexico border.”

While the agreement aligns with the administration’s “third country” asylum rule, that term was not used in the press conference between the two signatories announcing the agreement.

The obligation for asylees to look for refuge in the countries from which they flee contradicts what travel warnings of the U.S. Department of State. As of January 28, 2019, the State Department issued a travel advisory with respect to El Salvador, advising:

“Reconsider travel to El Salvador due to crime…Violent crime, such as murder, assault, rape, and armed robbery, is common. Gang activity, such as extortion, violent street crime, and narcotics and arms trafficking, is widespread. Local police may lack the resources to respond effectively to serious criminal incidents.”

Various international human rights organizations observe that a country with the sixth highest number of persons seeking asylum in 2018 does not meet the conditions to protect asylees in its territory.

Charanya Krishnaswami, the advocacy director for the Americas at Amnesty International USA, criticized the agreement, stating: “This agreement makes a mockery of the right to asylum. People should not be forced to seek safety in countries where they will not be safe. She continued that “El Salvador has one of the highest rates of violence in the world, including gender-based violence so rampant that Amnesty International declared it one of the most dangerous countries in the world to be a woman. It is not safe for its own citizens, much less for asylum-seekers.”

The October issue of the IELR will have additional information on the agreement and the El Salvador initiative to strengthen patrolling of its borders, which the United States government is partially financing.

Bill to Curb INTERPOL Abuse Follows Helsinki Commission Hearing

September 12, 2019 by Bruce Zagaris Leave a Comment

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.

UN Resolution Takes Steps to Hold Duterte Accountable for Extrajudicial Killings Connected with Antidrug Campaign

July 29, 2019 by Alexandra Haris Leave a Comment

Earlier this month, the United Nations’ 47-member Human Rights Council voted to examine the alleged extrajudicial killings connected with President Rodrigo Duterte’s antidrug campaign.

On July 12, 2019, Iceland proposed a resolution backed by 18 countries, which 14 opposed and 15 others abstained. The purpose was not to incite a commission of inquiry, but to call upon UN human rights chief, Michelle Bachelet, to prepare a report by July 2020 to ensure tougher follow-up action if the abuses continue. Some of these alleged abuses include killings, enforced disappearances, arbitrary arrests, and persecution of activists, journalists, and lawyers. The goal is to hold the Philippines accountable for their actions and send a message that they have not gone unnoticed. The Philippines reacted by denouncing the initiative as something “straight from the mouth of the queen in Alice in Wonderland,” and lobbied against it, citing an abuse of procedures and a poor use of resources.

This is not the first time the UN has weighed in on the violence occurring in the Philippines. One month ago, on June 7, 2019, UN human rights experts called for the organization to open an investigation into the country’s human rights violations. For support, the experts referred to the rapid increase in these violations toward people and institutions in the nation. Furthermore, since the inception of the antidrug campaign three years ago, 11 special rapporteurs brought this topic to the UN more than one dozen times.

A plethora of sources alluding to the violence taking place in the Philippines warrants the UN experts’ concerns and actions. One of the most recent alleged atrocities, and arguably the catalyst for Iceland’s resolution, was the death of 3-year-old Myca Ulpina in late June. Ulpina died during a police raid targeting her father who used her as a “human shield”. This is one of 6,600 deaths acknowledged by the Philippine government since the war against drugs began. However, the UN estimates this number to be approximately five times higher. A noticeable characteristic of these deaths is that they occur mostly in impoverished areas. This trend has led to devastation within poor communities as sole breadwinners continue to die, leaving their families with immense financial burdens they cannot pay off.

According to Amnesty International, a reason for the excess in human rights violations is that the campaign is liberal in its accusations. All it takes to be murdered or arrested is an unproven allegation that someone uses, buys, or sells drugs. Outside of the country, the government consistently practices intimidation to quell concerns. Even Duterte has publically bullied human rights defenders, UN experts, and Supreme Court justices. One of his most extreme cases took place when he threatened to bomb the schools of the Lumad indigenous peoples on Mindanao Island.

These tactics are no surprise to the international community, as the Duterte administration has continuously clashed with other states since rising to power. Most recently, the government exercised its disdain of international critique by withdrawing from the International Criminal Court (ICC). The ICC is the world’s only permanent war crimes tribunal and has pledged to continue to investigate the Philippines alleged killings. Although Duterte claimed the court “can never acquire jurisdiction over my person, not in a million years”, the case can and will still be examined through March 2020.

These trends – increased violence in the Philippines, as well as Duterte’s decision to leave the ICC – reveal the administration’s disregard for the rule of law and draw an eerie parallel to the current dynamics of the U.S. executive branch. From Duterte’s crude and controversial comments to his threats and bribes, he is continuously displaying apathy for the standards of law and government.

Meanwhile, President Trump consistently lauds Duterte on his actions, making it difficult not to draw a connection between the two. Trump may not be as extreme as Duterte on disregarding the law, but he has shown tendencies to lash out when he is questioned or critiqued (i.e. ousting multiple cabinet members, aggressively ranting on Twitter, ridiculing opposing politicians, etc.). Fortunately, it is unlikely the U.S. could be in a situation like the Philippines as the country is centered on relatively strong and established democratic institutions. However, it is important to look at the aforementioned leaders as examples of what can happen when an administration places their own needs and ego above their nation.

With the Supreme Court Refusing to Hear a Lawsuit Brought by a Yemeni Man Detained at Guantanamo Bay, Questions Resurface Regarding the Legal and Political Ramifications of Indefinite Detention

June 14, 2019 by Evan Schleicher 1 Comment

The Supreme Court on June 10^th refused to hear a lawsuit by Moath al-Alwi, a Yemeni man who has been held in wartime detention for more than 17 years at Guantánamo Bay. In the aftermath of this refusal, Justice Stephen G. Breyer called for a re-examination of the 2004 Supreme Court decision – Hamdi v. Rumsfeld – which has been used to justify the indefinite detention of suspected terrorists, including Mr. al-Alwi, and other actors without trial.

Prior to that 2004 decision, Congress passed the Authorization of the Use of Military Force (AUMF), which states that the President may “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” in the September 11^th attacks. The case itself was concluded when a majority of this Court understood the AUMF to permit the President to detain certain enemy combatants for the duration of the relevant conflict. Breyer’s recent statement is particularly noteworthy because, he, along with Justices O’Connor, Rehnquist, and Kennedy, initially supported the decision in Hamdi v. Rumsfeld. However, this support was not without hesitation. In the plurality decision, Justice O’Connor cautioned that this understanding “may unravel” if the “practical circumstances” were to become “entirely unlike those of the conflicts that informed … the law of war.” She further concluded that the “unconventional nature” of the war on terror presented a “substantial prospect” that detention for the “duration of the relevant conflict” could amount to “perpetual detention.”

Because the “War on Terror” is so amorphous and enduring, it is difficult to establish when the “relevant” hostilities will end, if ever. Certainly, while the non-state and state actors present in the “war” in Afghanistan today are the same as those in the conflict in which al-Alwi supposedly participated, the tactics, alliances, and even leaders of those groups have changed significantly over time. It is important to ask: is this the same “relevant conflict” in which al-Alwi fought? In the context of the AUMF, it seems so. The general authorization to use appropriate force against organizations the President determines to have been a part of the September 11^th attacks continues to operate because the Taliban continue to exist as an organization. Because Mr. al-Alwi supposedly confessed to fighting for the Taliban on the front lines as a member of Osama bin Laden’s 55^th Arab Brigade, he is considered under US law as a member of an organization which was involved in the September 11^th attacks.

The Supreme Court’s refusal to hear Mr. al-Alwi’s case means that, at least in the short-term, indefinite detention will continue to be an active part of U.S. policy unless Congress repeals the AUMF, an action which several legal experts have advocated in the past weeks.

Stepping back, it seems that the rolling back of the AUMF and the end of indefinite detention might be a wise political move as well. Despite the current domestic legality of indefinite detention, it may not be worth the political costs that it is incurring. As written previously in the IELR, the Council of Europe and European states have held hearings and litigated the illegality of the detention programs operated by the U.S. in support of the war on terror.[1] Since 2015, the European Parliament has begun to move strongly against the war on terror-based US detention program, arguing that the fight against terrorism should respect the rule of law, human dignity, human rights, and fundamental freedoms.[2] In one specific case, the U.S. could not find any country that would allow the U.S. to bring a detainee into their territories.[3] While between 2002 and 2006, nearly a quarter of the world’s countries assisted the US government in the conduction of its covert rendition and detention program, the recent inability to find countries that will participate in the program is proof that the political landscape has significantly shifted. This political shift has had an impact on the viability of the detention program and might make it difficult to convince previously strong allies in the war on terror to participate in future campaigns. Consequently, if there is to be any hope to re-building global alliances in the war on terror, some thought must be given to repealing the AUMF or to ending the system of indefinite detention through other means. The current program, both for legal and for political reasons, is quickly becoming untenable.

___

[1] Zagaris, Bruce, “U.S. Court Upholds Interrogation of Libyan on Ship with Respect to Killing of US Ambassador in Benghazi,” International Enforcement Law Reporter, Vol. 33, Issue 9, Sep 2017.

[2] Plachta, Michael, “European Parliament’s Follow-up to the CIA Detention Sites and Torture in Europe,” International Enforcement Law Reporter, Vol. 32, Issue 6, June 2016.

[3] Zagaris, 2017.

Assange’s Extradition Challenged on Both Fronts

June 5, 2019 by Alex Psilakis Leave a Comment

A pair of recent developments has shown how multifaceted and complex the case against Julian Assange is.

On May 31, 2019, Nils Melzer, the UN Special Rapporteur on Torture and other Cruel, Inhumane or Degrading Treatment or Punishment, declared that Assange’s extradition to the U.S. would prove a serious threat to his human rights. According to Melzer, Assange is currently experiencing symptoms of “prolonged exposure to psychological torture,” which include extreme stress, severe anxiety, and fierce psychological trauma. In line with this, Assange’s lawyer suggested that Assange missed a set court appearance because of his health. Additional sources have also stated that Assange has lost a serious amount of weight, and that it is nearly impossible to hold a simple conversation with him.

“In 20 years of work with victims of war, violence and political persecution,” Melzer noted in a statement, “I have never seen a group of democratic states ganging up to deliberately isolate, demonise and abuse a single individual for such a long time and with so little regard for human dignity and the rule of law.” Melzer has cited a specific instance in which Assange may receive, if extradited to the U.S. and faced with additional charges, a life sentence without the possibility of parole, or even the death penalty.

Melzer is not the only official to protest Assange’s treatment. On May 3, 2019, the UN Working Group on Arbitrary Detention – a wing of the Human Rights Council – condemned the British government for their excessive methods of incarcerating Assange. The body criticized the UK government for imposing a disproportionate sentence on Assange, noting that he was still detained for violating bail even though the bond related to the bail is no longer favored by the government. It also rebuked the government for incarcerating Assange in Belmarsh prison, a top-level security prison meant to host the most serious of criminal offenders.

According to the Washington Post, Assange is undergoing detention in Belmarsh not only because of its security status, but its close proximity to Westminster Magistrates’ Court, where the government is processing his extradition case. Additionally, Assange is not being held in the “Category A” wing of Belmarsh – which some have referred to as the “Guantanamo Bay” of the UK – but the “Category B” wing, which provides him an individual unit within a cell block of 70 inmates.

Though Assange’s treatment in Belmarsh is not Melzer’s greatest concern regarding the prisoner.

“There’s no chance he’ll get a fair trial in the U.S. That’s where I draw the line.”

Days after this development, a Swedish court announced that Assange should not be extradited to Sweden for the reopened rape investigation against him. The Uppsala District Court, which ruled on the case, declared that the case need not be abandoned. Instead, it noted that Swedish prosecutors, at this point, may only question Assange in the UK. Eva-Marie Persson, Sweden’s Deputy Director of Public Prosecutions, has instead pledged to issue a European Investigation Order, which would allow her to interview Assange in the UK. She may appeal the court’s decision as well.

These events at the UN and Sweden have added even more layers to a case that is already immensely complex. Since an extradition request by Sweden is off the table for now, the U.S. may have an easier time arguing their case in front of the UK, as they would be the only state pursuing his extradition at that time. However, statements made by officials like Melzer reveal the serious pressure on the UK around potentially extraditing Assange to the U.S. The U.S.’s decision to charge Assange with violating the Espionage Act has received sharp condemnation from media and the human rights community around the world, with many viewing such a move as an attack on free speech and free press. If the UK needed any less of a reason to extradite Assange to the U.S., Melzer’s findings may meet that criteria.

The U.S. must submit their official extradition request to the UK by June 11. Once that happens, who knows where the case will go, and what it will bring out.

U.S. Treasury and Commerce Increase Cuba Sanctions Rules

June 4, 2019 by Bruce Zagaris Leave a Comment

Today, the Department of the Treasury’s Office of Foreign Assets Control (OFAC)issued amendments to the Cuban Assets Control Regulations (CACR) to further implement the President’s foreign policy on Cuba. These amendments complement changes to the Department of Commerce’s Bureau of Industry and Security (BIS) Export Administration Regulations (EAR), which Commerce is also unveiling today. These regulatory changes were announced on April 17, 2019 and include restrictions on non-family travel to Cuba.

These actions continue to strengthen sanctions against Cuba in the implementation of the National Security Presidential Memorandum (NSPM) signed by the President on June 16, 2017 titled “Strengthening the Policy of the United States Toward Cuba.” These policies continue to work to channel economic activities away from the Cuban military, intelligence, and security services. The Treasury changes will take effect on June 5, 2019 when the regulations are published in the Federal Register.

The Treasury regulations, which can be found at 31 Code of Federal Regulations (CFR) part 515, are here.

The State Department also issued a press release on the new sanctions.

The Commerce regulations, which can be found at 15 CFR parts 730-774, are here.

Major elements of the changes in the revised regulations include:

ENDING GROUP PEOPLE-TO-PEOPLE TRAVEL

OFAC is amending the regulations to remove the authorization for group people-to-people educational travel hat was conducted under the auspices of an organization that is subject to U.S. jurisdiction and that sponsors such exchanges to promote people-to-people.

There is a “grandfathering” provision, which provides that certain group people-to-people educational travel that previously was authorized will continue to be authorized where the traveler had already completed at least one travel-related transaction (such as purchasing a flight or reserving accommodation) prior to June 5, 2019.

Travel-related transactions continue to be permitted by general licenses for certain categories of travel and certain authorized export transactions. For more on authorized travel to Cuba, please click here.

A general license permits travel-related transactions for certain travel related to the following activities, subject to the criteria and conditions in each general license: family visits; official business of the U.S. government, foreign governments, and certain intergovernmental organizations; journalistic activity; professional research and professional meetings; educational activities; religious activities; public performances, clinics, workshops, athletic and other competitions, and exhibitions; support for the Cuban people; humanitarian projects; activities of private foundations or research or educational institutes; exportation, importation, or transmission of information or information materials; and certain authorized export transactions.

In accordance with the NSPM, OFAC is adding a new prohibition to restrict certain direct financial transactions with entities and subentities identified on the State Department’s Cuba regulations.

ENDING EXPORTS OF PASSENGER VESSELS, RECREATIONAL VESSELS, AND PRIVATE AIRCRAFT

BIS, in coordination with OFAC, is amending the EAR to make passenger and recreational vessels and private and corporate aircraft ineligible for a license exception and to establish a general policy of denial for license applications involving those vessels and aircraft.

ANALYSIS

The new sanctions will eliminate most of the travel authorized by the Obama Administration. Since the Obama administration had authorized 12 general categories of travel, a new travel industry has arisen in the U.S. for persons wanting to travel to Cuba, including direct flights from various U.S. cities by various airlines, passenger ferries, and a number of boutique travel groups mainly offering trips about Cuban culture. Although it purports to target the Cuban government, it will hurt the middle-class Cubans who sponsored many of the people-to-people exchanges through hosting U.S. travelers in bed- and -breakfasts from converted homes and participated in U.S. tourism.

The sanctions will further isolate the U.S. government in the Western Hemisphere, since opposition to U.S. unilateral sanctions against Cuba have been the most important policy matter in the region.

It will increase opposition in much of the world, especially Western Europe to U.S. unilateral sanctions.

Coming only a few days after the threatened tariffs on Mexico for immigration reasons, the raised sanctions further undermine trade and investment in the Western Hemisphere. Since the sanctions take effect June 5, essentially immediately although with a grandfather for people who have already put into place certain travel by air, the new regulations will disrupt and cause losses for airlines, cruise lines, and travel industry persons who have invested substantially in Cuba travel. The lack of a transition for the sanctions is a blow to this part of the U.S. economy. Yesterday Goldman Sachs downgraded their Q2 2019 economic growth forecasts for the U.S. due to risks stemming from trade conflicts with China and Mexico. JP Morgan said the probability of a U.S. recession in the second half of this year had risen to 40% from 25% a month ago.

The next issue of the IELR will discuss the developments further.

US Leaves Arms Trade Treaty, Raising Concerns over Worsening Human Rights Conditions in Latin America and Globally

April 29, 2019 by Evan Schleicher Leave a Comment

On April 26^th, President Trump signed an executive order meant to withdraw the United States from the UN Arms Trade Treaty, a 2013 treaty meant to set global standards for regulating transfers of conventional arms, from rifles to tanks and airplanes. He signed the executive order at a National Rifle Association speech, throwing his pen into the crowd afterwards to great applause and proclaiming that he was acting to protect America’s sovereignty and Second Amendment rights.

Although President Trump’s speech to the NRA was obviously meant to be flashy and dramatic, this move has been a long time coming. In January, the administration told Congress that they intended to finalize rules to shuffle which agency oversees consumer gun exports and, in the process, to relax export regulations and oversight. This rule change placed the Department of Commerce, which has a far simpler process for approving international arms sales than does the State Department and which does not even charge a fee for the process, wholly in charge of the verification of international arms sales. Further, under new rules, Congress does not have to be notified of arms deals in advance of their occurrence. This is worrying, because Congress has acted multiple times previously to block arms sales over human rights concerns. These moves have been widely criticized because, while the State Department has the existing framework and personnel to vet arms exports on human rights and security grounds, the Commerce Department does not. As such, the potential for human rights abuses arising from US international arms sales will almost certainly increase dramatically.

Despite the overwhelming perception that the State Department system was effective at protecting human rights, it is worth noting that the US record on arms sales has been anything but solid in recent years. IELR Editor-in-Chief, Bruce Zagaris wrote in 2016 that a lack of effective export controls within the US has led to a significant flow of “high-powered weaponry from the U.S. to Latin America and the Caribbean which has exacerbated soaring rates of gun-related violence in the region and undermine[d] U.S. influence in the Western Hemisphere”. Between 2015 and 2017, the United States approved $2 million to $4 million in gun sales per year to Honduras, an amount which is significant in a relatively poor country like Honduras. Some of the guns sold to Honduras were turned on protestors in 2017 and many others ended up in the hands of criminals, with photo evidence revealing that many of the guns used by state forces in the 2017 protests had been exported from Colt’s Manufacturing in Connecticut.

Because the escalation of violence and abuse in these Latin American countries has fueled the current migrant crisis, it is likely that US efforts to deregulate its international arms trade and to increase arms sales will contribute to a further escalation of the migration crisis in Central America and Mexico. Parallel situations have occurred in Libya, Afghanistan, and Syria, suggesting that further deregulation of the US arms trade will be a source of increasing instability globally, not just in Latin America.

So, why does the United States continue to operate in ways which are likely to undermine its long-term national security objectives? The answer is alluded to in the previous reference to Trump’s NRA speech: domestic politics. It is not an accident that the President chose this venue to sign his executive order withdrawing the US from the ATT. In international organizations, domestic politics remains the strongest indicators of a states’ compliance with agreements. The NRA and other opponents of the ATT have historically wielded significant political power in the United States. The NRA, one of the strongest lobbying groups in the US, spent over $36 million on the Trump campaign in 2016, breaking its previous records for campaign spending. There were also allegations that the group illegally coordinated with the Trump campaign to maximize the value of expenditures on ads and to avoid repetitive efforts. President Trump has responded to this support by heavily supporting the NRA, even going so far as to attack the New York attorney general’s office this week for “illegally” investigating the NRA.

The Administration’s wholehearted acceptance of the NRA’s views on this issue are unfortunate, because the Arms Trade Treaty, while imperfect, provided an international framework which could help to resolve the previously mentioned migration crises and to reduce the risks posed to US national security by unregulated international arms sales. Thus, despite likely failure, active efforts must be made to bring the US into closer compliance with the agreed upon principles of the treaty.

Evan Schleicher is the Editorial Intern for the International Enforcement Law Reporter. He is currently an MA candidate in Security Policy Studies at George Washington University, focusing on transnational security and humanitarian issues, and has also interned at the Department of State previously.

Current Case Against Former Somali Commander and Current Virginia Resident Showcases the Reach of the Torture Victim Protection Act

April 23, 2019 by Alex Psilakis 2 Comments

On May 13, 2019, Colonel Yusuf Abdi Ali, former commander of the Somali National Army, will stand trial for his alleged involvement in the torture and attempted extrajudicial killing of Farhan Warfaa. Col. Ali, referred to as Tukeh, served under Somalia’s Said Barre regime, which ruled through a military dictatorship from 1969-1991. However, after the regime was overthrown, Col. Tukeh moved to Canada, and then the U.S., where he retained permanent residency status since 1996.

Mr. Warfaa alleges that Col. Tukeh captured him just before civil war broke out. Col. Tukeh rounded up Mr. Warfaa, alongside the other men and boys in the village, and transferred them to the Military Headquarters of the 5^th Brigade of the Somali National Army, where Col. Tukeh served as the commanding officer. Mr. Warfaa claims that Col. Tukeh tortured and interrogated him, eventually shooting him five times at point-blank range, assuming him dead. Somehow, though, he survived, and Col. Tukeh’s soldiers later released him in exchange for payment from Mr. Warfaa’s family. He further alleges that Col. Tukeh targeted him and his village because of their ethnic status, being members of the Isaaq clan. Col. Tukeh allegedly disarmed Isaaq soldiers under his leadership, sending them to Hargeisa to face massacre alongside their own. As many as 200,000 individuals were executed in Hargeisa under the Said Barre regime, though with a near-countless number of bodies in mass graves, no one knows exactly how many people were killed.

While Col. Tukeh will face trial on May 13, the path to this trial has been long and laborious. Mr. Warfaa first brought claims against Col. Tukeh in 2004, suing him under the U.S. Alien Tort Statute and the Torture Victim Protection Act. Due to multiple delays and stays, the case did not go to court until 2014, when the District Court for the Eastern District of Virginia dismissed Mr. Warfaa’s claims regarding the Alien Tort Statute. However, the court also dismissed Col. Tukeh’s claim that he deserved immunity as a foreign official. In 2016, the Fourth Circuit Court of Appeals upheld the lower court’s ruling, allowing Mr. Warfaa to move forward in suing Col. Tukeh under the Torture Victims Protection Act. In 2017, the Supreme Court refused a request for judicial review of the decision, eliminating a final technical hurdle to Mr. Warfaa’s lawsuit.

While the dismissal of the Alien Tort Statute means that Mr. Warfaa cannot sue Col. Tukeh for war crimes and crimes against humanity, the Torture Victim Protection Act allows him to seek justice for the alleged torture and attempted extrajudicial killing he experienced. Passed in 1991, the Torture Victim Protection Act allows victims of torture or extrajudicial killings to pursue civil actions against their alleged perpetrators. Victims – or, in the cases of extrajudicial killings, legal representatives or claimants – may file a lawsuit against those that act under actual or apparent authority of any foreign nation. However, before seeking remedies in the U.S., victims must exhaust “adequate and available remedies” where the alleged crime occurred.

Mr. Warfaa’s legal representation, the Center for Justice and Accountability (CJA), has experience in carrying out suits against abusers of the Said Barre regime. After CJA filed suit against General Mohammad Ali Samantar, Samantar was deemed liable for human rights atrocities. As a result, he had to pay $21 million to Somali survivors represented by CJA. In 2013, CJA also won a judgement Col. Abdi Aden Magan, the former chief of the Somali National Security Service. CJA represented Abukar Hassan Ahmed, a law professor and human rights advocate, who experienced physical and emotional trauma at the hands of Col. Magan. Professor Ahmed won $15 million in damages from Col. Magan.

No sum of money can adequately make up for the damages that victims of torture and extrajudicial killings experience at the hands of ruthless officials. However, policies like the Torture Victim Protection Act at least offer a remedy in which victims may hold accountable those that cause them so much suffering. Though Mr. Warfaa will never be able to forget the pain he alleges he experienced at the hands of Col. Tukeh, his victory in court would provide him the opportunity to label Col. Tukeh the criminal that he has always seen him as.