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No Appeal as of Right and the Need for Due Process: the Commission for the Control of INTERPOL’s Files Steps In Again

December 5, 2020 by Bruce Zagaris Leave a Comment

By Yuriy Nemets*

Ability to Challenge INTERPOL Red Notices

It is well known that the redress mechanism that INTERPOL has established for individuals to challenge government use of its channels is far from meeting modern democratic due process standards. Among the rights without which it is difficult to imagine a modern democratic society but that are lacking within the INTERPOL framework are the right to a hearing, the right to examine evidence produced by a government and the right to appeal. Several years ago, INTERPOL carried out reforms aimed at making its redress mechanism more independent, transparent and better staffed for adjudicating complaints from individuals alleging violations of their rights through unlawful use of the Organization’s resources. The reforms have addressed only some of the most pressing issues, however. The redress mechanism still lacks a number of crucial elements, including the rights mentioned above, which to this day allows governments to use INTERPOL as a tool in politically motivated and otherwise corrupt prosecutions.

The INTERPOL redress mechanism is represented first and foremost by the Commission for the Control of INTERPOL’s Files (CCF), an independent body with exclusive jurisdiction to adjudicate complaints from individuals. With the obvious lack of urgency on the part of the INTERPOL General Assembly to address the ongoing abuse and close the loopholes that contribute to it, CCF seems to be stepping in. I have already written about a case in which CCF responded to the government’s abuse of its absolute right to deny an individual access to INTERPOL’s files by ordering the information deleted until the government agreed to provide access to the information or justified its refusal to do so.[1] Fortunately, it appears that CCF’s quest for balance does not end there.

As mentioned above, INTERPOL’s rules do not guarantee individuals the right to appeal if CCF denies their complaints. The CCF Statute allows for revision of its decisions but “only when [the request for revision is] based on the discovery of facts which could have led the [CCF] Requests Chamber to a different conclusion if that fact had been known at the time at which the [complaint] was being processed.”[2] A request for revision must be made “within six months after the discovery of [such] fact.”[3] It is, therefore, up to CCF only to decide whether or not its decision to deny an individual’s complaint warrants its review, and CCF’s powers in this regard as described in its Statute are broad.

2018 Annual Report Indicates Broadening of Redress Mechanism

However, in its most recent (2018) annual report, CCF seems to indicate that it interprets the provisions regarding requests for revision broadly — “[a]lthough [in considering applications for revision,] the Commission is especially careful to ensure that the procedures in place do not jeopardize the binding character of its decisions, it may also consider revision under certain circumstances: for instance, when it appears necessary to correct a possible violation of a rule or procedure, or a mistake in the conclusions due to some missing information or a miscarriage of justice.”[4] CCF, therefore, seems to interpret the provisions to mean that they apply not only when new and previously unavailable evidence is discovered, the concept that we usually use in the context of a motion for a new trial, but also when CCF makes a material error in its procedure or in interpretation of law or fact, the latter typical of an appeal. Although this broad interpretation of INTERPOL’s rules does not introduce appeal as of right, as the decision whether or not to review its previous conclusions remains CCF’s solely, it is a very serious step that suggests CCF’s recognition of the importance of that right which is still lacking and long overdue in the INTERPOL redress mechanism.

* Managing Member of Nemets, Wash., D.C. https://nyllaw.com. Yuriy is a graduate of Northwestern University School of Law (Chicago), from which he received his Juris Doctor (JD) and Master of Laws (LLM) degrees, and Moscow State Law Academy (Russia), from which he received his first law degree and his Ph.D. in law.

[1] Yuriy Nemets, The Absolute Right of Governments to Deny Individuals Access to INTERPOL’s Files and the Need for Due Process: CCF Seeks Balance, Red Notice Abuse Report (Dec. 19, 2019), https://rednoticeabuse.com/the-absolute-right-of-governments-to-deny-individuals-access-to-interpols-files-and-the-need-for-due-process-ccf-seeks-balance/

[2] Statute of the Commission for the Control of INTERPOL’s Files, art. 42(1), available at https://www.interpol.int/Who-we-are/Legal-framework/Legal-documents

[3] Id. art. 42(2).

[4] Activity Report of the Commission for the Control of INTERPOL’s Files for 2018 § 47, available at https://www.interpol.int/Who-we-are/Commission-for-the-Control-of-INTERPOL-s-Files-CCF/About-the-CCF

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

September 18, 2020 by Bruce Zagaris Leave a Comment

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

Suriname

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

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

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

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

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

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

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

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

Guyana

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

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

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

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

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

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

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

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

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

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

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

[4] Charles, supra.

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

[6] Charles, supra.

U.S. Attorney General Issues Notice that UK-US CLOUD Act Takes Effect July 8, 2020

March 3, 2020 by Bruce Zagaris Leave a Comment

On March 3, 2020, U.S. Attorney General William Barr, in accordance with the Clarifying Lawful Overseas Use of Data Act (“CLOUD Act”), relating to an executive agreement governing access by a foreign government to electronic data, gave notice that he has determined, and has submitted a written certification of such determination to Congress, that the U.S.-U.K. CLOUD Agreement satisfies the requirements of the CLOUD Act.

On November 27, 2019, the Attorney General certified that he had determined that the U.S.-U.K. CLOUD Agreement satisfies the requirements of the CLOUD Act. On January 10, 2020, the Attorney General completed the process of providing his certification to Congress. The U.S.-U.K. CLOUD Agreement will enter into force not earlier than July 8, 2020, unless Congress enacts a joint resolution of disapproval, in accordance with the CLOUD Act.

On March 23, 2018, the CLOUD Act was signed into law. Public Law 115-141, Div. V, 132 Stat. 1213-25. The CLOUD Act removes certain restrictions under U.S. law on companies disclosing electronic data, in response to qualifying, lawful orders in investigations of serious crime, directly to a qualifying foreign government with which the United States has entered into an executive agreement governing access by the foreign government to covered data. Id. at 132 Stat. at 1213-17.

Before an agreement can go into effect, the Attorney General, with the concurrence of the Secretary of State, must determine that the considerations outlined in 18 U.S.C. 2523(b) have been met. The Attorney General must then submit a written certification of his determination to Congress, including an explanation of each consideration required by 18 U.S.C. 2523(b), not later than 7 days after the date on which the Attorney General certifies the executive agreement. 18 U.S.C. 2523(d) (1).

The executive agreement will enter into force not earlier than 180 days after the date the Attorney General notifies Congress, unless Congress enacts a joint resolution of disapproval, in accordance with the CLOUD Act. 18 U.S.C. 2523(d)(2). Under 18 U.S.C. 2523(g), the Attorney General’s determination or certification under 18 U.S.C. 2523(b) must be published in the Federal Register..

Determination and Certification Pursuant to Section 2523(b)

On October 3, 2019, the Home Secretary of the United Kingdom and the Attorney General of the United States signed the U.S.-U.K. CLOUD Agreement. A copy of the U.S.-U.K. CLOUD Agreement is available at: https://www.justice.gov/dag/cloudact. On November 27, 2019, the Attorney General certified his determination that the U.S.-U.K. CLOUD Agreement satisfies the requirements of 18 U.S.C. 2523(b). The Attorney General’s determination was based on the considerations in paragraphs (1), (2), (3), and (4) of 18 U.S.C. 2523(b), as explained in the “Explanation of Each Consideration in Determining that the Agreement Satisfies the Requirements of 18 U.S.C. 2523(b),available at: https://www.justice.gov/dag/cloudact. Secretary of State. Pompeo concurred with the Attorney General’s determination.

The Department of Justice (“Department”) transmitted the U.S.-U.K. CLOUD Agreement certification to the Committee on the Judiciary and the Committee on Foreign Relations of the Senate on December 4, 2019. Due to a clerical error the Committee on the Judiciary and the Committee on Foreign Affairs of the House of Representatives did not receive notice until January 10, 2020.

Non-Reviewable Determination and Certification

In accordance with 18 U.S.C. 2523(c), the determination and certification by the Attorney General described in this notice are not subject to judicial or administrative review.

The Way Forward

The U.S. has also signed a CLOUD Act Agreement with Australia. The U.S. and the Ministers of Justice of the European Union have held discussions over a CLOUD Act Agreement. The U.S. hopes to sign many CLOUD Act Agreements.

Many privacy groups, such as Electronic Privacy Information Center, and human rights groups have opposed the CLOUD Act agreements. They oppose it, among other reasons, because it gives foreign authorities access to information without any judicial authorization, no notice is given to the data subject and no remedies, and unequal minimization and targeting protections exist for U.K. and U.S. citizens

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.

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

May 19, 2019 by Bruce Zagaris Leave a Comment

On May 16, 2019, U.S. Attorney General William P. Barr, during the 3^rd 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.

CARICOM HEADS ISSUE COMMUNIQUÉ ON SECURITY, MARIJUANA LEGALIZATION AND OTHER ENFORCEMENT INITIATIVES

July 9, 2018 by Bruce Zagaris Leave a Comment

At 39^th meeting of the heads of government of the Caribbean Community in Montego Bay, Jamaica on July 4-6, 2018, several significant actions occurred on international enforcement and security cooperation, as shown by the Communique.

Jamaica signed the CARICOM arrest warrant treaty, which enables Jamaica and CARICOM countries to more easily surrender individuals without need to extradite them.

After receiving an update on current and emerging Crime and Security issues in the region, the Heads mandated the Regional Security Agencies to work closely with the National Security Heads to address the various challenges emphasizing the need to strengthen the network of security head in the region to promote further information and intelligence sharing.

The Heads underscored the importance of strengthening the use of information and Communications technology in the fight against illicit trafficking in narcotics and firearms, trans-border criminal activities and cyber attacks. They emphasized the importance of working more closely with their international development partners to help the region in this regard.

CARICOM Members were encouraged to urgently update all legal instruments to combat crime and enhance regional security.

The Heads observed with great concern the amendment approved by the UK House of Commons to the Sanctions and Anti-Money Laundering Bill requiring the UK Government to ensure that the British Overseas Territories, but not Crown Dependencies, establish public registers of beneficial ownership information by no later than December 31, 2020.

They expressed solidarity with the territories “adversely affected by this unfair and unilateral action to legislate in areas of domestic policy constitutionally devolved to the territories without the consent of the people. Moreover, the action ran counter to an alternative arrangement to public registers earlier negotiated and agreed with the UK government and put in place at great cost to the overseas territories.”

According to the Heads, this they view as similar to the “unfair, unilateral and punitive extraterritorial measures such as blacklisting and de-risking taken against their own countries financial services sector, also a critical aspect of their economies, despite their best efforts at transparency and compliance.”

The Heads welcomed the report of the Regional Commission on Marijuana, which reviewed information and studies pertaining to marijuana legislation regulating its use and classification, findings related to research conducted on the medicinal use of marijuana as well as the economic and social impact and its implications for the region.

The Heads accepted in principle the need for changes in the classification of the drug which will make it more available for medicinal purposes and research. The acknowledged the region must intensify its lobbying at the international level to facilitate reclassification.

The Communiqué shows that the Caribbean Single Market Economy continues to facilitate streamlined procedure to enforcement cooperation, such as the CARICOM arrest warrant treaty. They continue to try to develop common approaches and policies to transnational criminal threats, such as illicit trafficking in narcotics and firearms, trans-border criminal activities and cyber attacks.

The Heads are also developing common approaches to efforts by extraregional actors to impose tax transparency and money laundering/counter-terrorism financial regulatory and enforcement policies on them. They are especially supportive of the overseas territories because the same policies, e.g., the requirement to have corporate public registers, will undoubtedly be imposed on them, even as they continue losing their financial service markets to other jurisdictions, especially to states in the U.S. which do not even have any private registers and the Trump Administration has not prioritized or pledged to meet international standards in tax transparency or anti-money laundering.

CARICOM has developed a number of regional enforcement and security mechanisms, including CARICOM Implementing Agency for Crime and Security (IMPACS), the Association of Caribbean Commissioners of Police, and subregional enforcement mechanisms, such as the Organization of East Caribbean States (OECS) Regional Security System.

U.S. and Brazil Start Permanent Forum on Security

May 23, 2018 by Bruce Zagaris Leave a Comment

On May 22, 2018, the United States and Brazilian governments issued a joint statement following the start of the U.S.-Brazil Permanent Forum on Security.

The initiative arose during a meeting in Brasilia at which U.S. Deputy Secretary of State John J. Sullivan was accompanied by the Assistant Secretary for Economic and Business Affairs Manisha Singh and Acting Assistant Secretary for Western Hemisphere Affairs Francisco Palmieri.

The Acting Minister of Foreign Affairs, Secretary General Marcos Garvão hosted the U.S. delegation in a working lunch and a meeting where they discussed several aspects of the U.S.-Brazil partnership.

The start of the Permanent Forum on Security arises from “consistent cooperation between the United States and Brazil on fighting transnational crime, and based upon the strengthening of collaboration of law enforcement and security agencies in both countries.”[1]

The Brazilian Ministry of Foreign Affairs and the U.S. State Department will coordinate the Forum, which aims to facilitate interagency teamwork and design operating strategies in six pre-defined areas: drug trafficking, arms trafficking, cybercrime, money laundering and financial crimes, terrorism, and institutional cooperation.

The first working meeting of the Forum will occur later this year in Washington, D.C.

During the visit, the two sides also issues related to criminal cooperation, such as space cooperation and defense. They discussed the recent exchange of diplomatic notes completing the process for the U.S.-Brazil Open Skies Aviation Agreement and welcomed the resumption of negotiations on a Technology Safeguards Agreement. They exchanged ideas on regional issues, including the region’s response to the political, economic, and humanitarian crisis in Venezuela.

According to the remarks of Deputy Secretary Sullivan, the U.S.-Brazilian security cooperation has included the Summer Olympics in Rio de Janeiro.

A future IELR article will include a more comprehensive discussion of the Forum, its scope and some of the implications.

[1] State Department, Western Hemisphere: U.S.-Brazil Bilateral Cooperation, May 22, 2018