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Official Blog of the International Enforcement Law Reporter

Comparative Study on Anti-Corruption law in Switzerland, the U.K., France and the U.S.

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A book recently published is  co-authored by Paul Gully-Hart and Valerie de Saint-Pierre on the fight against corruption.

The title of the book is : “Lutte contre la corruption : enjeux et perspectives comparées (Suisse, Royaume-Uni, France, États-Unis).” Translated this is the Fight against corruption: comparative issues and perspectives (Swiss, UK, French, and U.S.)  This book, just published in French, by the Swiss Editeurs Schulthess, runs 517 pages.  It is the result of extensive professional experience in white collar crime law, combined with an analysis on national anti-corruption strategies in Switzerland, the United Kingdom, France and the United States.
The authors explain that more than twenty years have elapsed since the enactment of key conventions, namely the  Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Anti-Bribery Convention) and the United Nations Convention Against Corruption (UNCAC).
In its first part, the book provides a global overview of the institutional and legal framework of the global fight against corruption. The second part offers a critical assessment of the domestic anti-corruption strategies in place the four countries mentioned above. Finally, the third part explores several key developments from the perspective of practitioners. These include: the use of alternative dispute resolutions; the coordinated settlement of criminal investigations conducted in multiple jurisdictions ; the increasing role of companies and compliance in the fight against corruption ; the performance of internal investigations ; the use of economic sanctions in fighting corruption; the role of lawyers, bribery issues in the context of international arbitration and setbacks in victims compensation.

The book will be of interest for practitioners, policy makers, and academicians.

Meeting of Mexican and U.S. Heads of States Results in Enforcement Cooperation Promises

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On July 12, 2022, the meeting between Mexico President Andrés Manuel López Obrador and U.S. President Joseph Biden resulted in a joint statement, containing some promises of cross-border law enforcement cooperation.

Drug Trafficking, Arms Trafficking, Human Smuggling, and Transnational Criminal Organizations

Through the Bicentennial Framework for Security, Public Health, and Safe Communities, the two leaders  reaffirmed their commitment to cooperate  to address major security issues affecting the two nations, including the challenges of fentanyl, arms trafficking, and human smuggling, and to reduce levels of drug abuse and addiction.

They committed to deepen their cooperation to combat transnational criminal organizations.  They reaffirmed the robust operational efforts between law enforcement agencies to address these security efforts.  They pledged to establish a U.S.-Mexico operational task force to disrupt the flow of fentanyl into their countries.

Migration Issues

The two leaders referred to the tragic deaths of 51 migrants on June 27 at the hands of human smugglers in San Antonio.  The incident further strengthens their “determination to go after the multi-billion-dollar criminal smuggling industry preying on migrants and increase our efforts to address the root causes of migration.”  The Departments of Justice (DOJ) and Homeland Security (DHS) and Mexico’s Attorney General’s Office have coordinated to arrest and prosecute those who endanger the lives of vulnerable migrants.”  In doing so, they will, among other things,  work  through Joint Task Force Alpha and its Mexican partners.

Joint Task Force Alpha is a law enforcement task force. It will marshal the investigative and prosecutorial resources of the DOJ, in partnership with the DHS, to enhance U.S. enforcement efforts against the most prolific and dangerous human smuggling and trafficking groups operating in Mexico and the Northern Triangle countries of Guatemala, El Salvador, and Honduras.

The Joint Task Force is composed of federal prosecutors from U.S. Attorney’s Offices along the Southwest Border (District of Arizona, Southern District of California, Southern District of Texas, and Western District of Texas), from the Criminal Division and the Civil Rights Division.  Also participating are law enforcement agents and analysts from DHS’s Immigration and Customs Enforcement and Customs and Border Patrol. The FBI and the Drug Enforcement Administration are also part of the Task Force. It works closely with Operation Sentinel, a recently announced DHS operation focused on countering transnational criminal organizations affiliated with migrant smuggling.

The two leaders pledged to build on the commitments at the Summit of the Americas made by twenty-one countries in the hemisphere pursuant to the Los Angeles Declaration on Migration and Protection, they said they are taking immediate and coordinated steps to manage the flows of migrants arriving into their countries.  They have joined efforts to address the underlying economic and security drivers of migration. Recognizing that development must be at the center of all migration policies, they will accelerate and expand international cooperation programs focused on the most marginalized communities. At the same time, they will maintain strong border enforcement policies while ensuring full protection of human rights.

Analysis

Perhaps the most concrete development is pledged to establish a U.S.-Mexico operational task force to disrupt the flow of fentanyl.  Some of the ingredients tend to originate in China and are brought into Mexico, where they are further processed for export to the U.S.

The most difficult pledge is to have strong border enforcement policies while ensuring full protection of human rights.  The U.S. border situation suffers from the failure of the U.S. Congress to enact modernize legislation, the lack of resources at the border to process the number of aliens, the failure to invest in resources to adjudicate the number of asylum applicants, policies of U.S. state governments which sometimes do not complement and even work at cross-purposes with U.S. immigration and human rights policies, and the lack of consistent border and immigration policies when administrations change.

A limitation of the Los Angels Declaration on Migration and Protection is that some of the most countries that are the sources (e.g., Cuba) and intermediary locations (e.g., Nicaragua) have not joined the Declaration.

The Bicentennial Framework provides at least a detailed framework for cross-border enforcement cooperation between the two countries.  In addition, the U.S.-Mexico-Canada Free Trade Agreement has strengthened enforcement provisions, especially for labor and the environment.  Those provisions also enable the two governments and other stakeholders to ensure enforcement cooperation occurs with respect to the issues covered in the agreement.  These provisions also extend to intellectual property enforcement.

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.

INTERPOL Suspends Russia’s Ability to Make Diffusion Notices Directly and Deploys Team to Moldova While Ukraine Disconnects from INTERPOL Network

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The conflict in Ukraine has had significant consequences in INTERPOL.  Ukraine has disconnected from the INTERPOL network due to its fear of Russia’s misuse of INTERPOL’s channels.    On March 10, INTERPOL announced that the Russian National Central Bureau (NCB) can no longer send diffusions directly.  On March 25, 2022, INTERPOL announced that it deployed an Operational Support Team to Moldova in response to the ongoing conflict in Ukraine.

Suspension of Russia’s Right to Send Diffusions Directly

When an INTERPOL NCB wants to send a Red Notice, the NCB sends the request for a Red Notice to the INTERPOL Secretariat.  The Secretariat must vet the request to ensure that it meets with the organization’s requirements.  Once a Red Notice is approved, it is posted over the INTERPOL network.  Such a Red Notice enables INTERPOL members to detain an individual against whom an INTERPOL Red Notice exists. However, INTERPOL points out that a decision by a member country whether to act on a request is exclusively at the discretion of the competent authorities.

A diffusion is less formal.  An INTERPOL NCB can directly send diffusions.  They are less formal and the Secretariat does not vet them.   Nevertheless, many NCBs still detain individuals against whom there is a diffusion.

Since March 10, INTERPOL has required the Russian NCB to send all diffusions to the General Secretariat to be checked for compliance with INTERPOL’s Rules.  Only if a diffusion is found compliant will the General   Secretariat then disseminate it to member countries.  This procedure is in addition to the General Secretariat’s current process of reviewing all Notice requests for compliance.

To prevent any potential misuse of INTERPOL’s channels with respect to the targeting of individuals within or beyond the conflict in Ukraine, the Secretary General with the endorsement of the Executive Committee has increased supervision and monitoring measures in relation to Russia.

INTERPOL has announced that the Secretary General may take additional measures on an urgent basis if the need arises.

INTERPOL Rejects Calls to Suspend or Expel Russia

INTERPOL has issued a statement that Article 2 of its Constitution requires it to maintain police cooperation and ensure communication channels remain open.  INTERPOL’s mandate does not include the issuance of sanctions or the imposition of punitive measures. Additionally, no provisions allow for the suspension or exclusion of a member country.  As a result, INTERPOL rejects calls as the political level to suspend or exclude Russia from the INTERPOL network.

INTERPOL reiterates that its Constitution strictly forbids it from undertaking any intervention or activities of a political, military, religious or racial character.

On March 1, Fair Trials observed that Russia has abused INTERPOL Red Notices and Diffusions to intimidate and threaten critics overseas.  Fair Trials joined Ukraine and the United Kingdom in calling for INTERPOL to revoke Russia’s membership in INTERPOL.

INTERPOL Deploys Team to Moldova

At the request of Moldova, on March 25, 2022, the INTERPOL General Secretariat deployed an Operational Support Team to Moldova.  The mission is furnishing support to law enforcement and humanitarian agencies managing the large outflow of refugees entering the country from Ukraine.

The INTERPOL team will consult and cooperate with Moldova’s General Inspectorate of Police, the General Inspectorate of Border Police, and international organizations, such as the UN High Commissioner for Refugees, the UN International Children’s Emergency Fund and the International Organization for Migration in areas, such as human trafficking, migration and border management.

The INTERPOL’s mission comes within the framework of its cooperation with EU agencies EUBAM (The European Union Border Assistance Mission to Moldova and Ukraine), Europol and Frontex.

The INTERPOL team will furnish immediate field support to law enforcement and humanitarian organizations and help evaluate the situation on the ground, identifying needs in order to supply relevant training, analysis and operational support.  The INTERPOL team will be based in Chisnau and different refugee camps hosting those who have recently fled Ukraine.

INTERPOL has received reports of human traffickers and smugglers waiting at various border control checkpoints to prey on vulnerable populations arriving from Ukraine.  Children and unaccompanied minors are particularly vulnerable to exploitation by smugglers and traffickers.

The INTERPOL mission in Moldova is working with national authorities to identify and prevent organized criminal activity from exploiting the crisis.

 Analysis

INTERPOL’s suspension of the right of Russia to directly disseminate Diffusions and dispatching a team to Moldova are actions taken in the context of the conflict.  Similarly, the decision by the Ukraine NCB to disconnect from the INTERPOL network and the call for INTERPOL to expel Russia by Ukraine, the UK, and Fair Trials all reflect concerns and efforts to respond to instances of the misuse of INTERPOL by Russia and fears that the risks of remaining connected to the INTERPOL network outweigh the benefits.

INTERPOL has the challenge of trying to balance the goals of having universal membership, especially as some of its members have cut or diminished international enforcement cooperation, with the need for proper integrity, governance, and adherence to its Constitution to ensure confidence, trust and integrity in its notices and diffusions.

U.S. Government Accuses Russia of War Crimes

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On March 23, 2022, Antony J. Blinken, U.S. Secretary of State accused Russia of making “indiscriminate attacks and attacks deliberately targeting civilians, as well as other atrocities. “Russia’s forces have destroyed apartment buildings, schools, hospitals, critical infrastructure, civilian vehicles, shopping centers, and ambulances, leaving thousands of innocent civilians killed or wounded.”

Statement by Antony J. Blinken

Blinken underscored that, according to the UN Office of the High Commissioner for Human Rights observed in a March 11 report, Russian forces have targeted the Mariupol maternity hospital.  It also includes a strike against a Mariupol theater, clearly marked with the word for “children” in Russian in huge letters visible from the sky.

According to Blinken, Putin’s forces used these same tactics in Grozny, Chechnya, and Aleppo, Syria, where their planes bombarded cities to break the will of people.

Blinken observed that last week, both he and President Biden stated that Russian forces had committed war crimes in Ukraine.  Blinken said then that deliberate targeting of civilians is a war crime.  The Department of State and other U.S. government experts were documenting and assessing potential war crimes in Ukraine.

According to Blinken, the determination that members of Russia’s forces have committed war crimes is based on a careful review of available information from public and intelligence sources.  Blinken said a court of law with jurisdiction over the crime is ultimately responsible for determining criminal guilt in specific cases.  The U.S. government will continue to track reports of war crimes and will share information it collects with allies, partners, and international institutions and organizations, as appropriate.

Statement by Beth van Schaack

Beth van Schaack, U.S. Ambassador at-Large for Global Criminal Justice, State Department, also gave remarks and answered questions about the allegations that the Russian troops are committing war crimes.

When asked about the potential venues for prosecution, van Schaack answered that Ukraine has a General Prosecutor and a directorate for War Crimes.  Some third states also will have jurisdiction.  Also she noted that the chief prosecutor of the ICC has announced he is reviewing the situation.

The U.S. is reviewing all possibilities, including potentially cooperation with ICC even though the U.S. is not a party to the International Criminal Court.

It is important to document the evidence for preservation for use in future accountability proceedings.  In respect to the need to document and preserve evidence of atrocities, on March 10, Karim A.A. Khan QC,  announced that his Office has established a dedicated portal through which any person that may hold information relevant to the Ukraine situation can contact our investigators. He encouraged all those with relevant information to come forward and contact his Team through the news platform, which can be accessed here.

Analysis

The statements of President Biden, Secretary of State Antony Blinken, and Ambassador at-Large for Global Criminal Justice Beth van Schaack indicate that the U.S. government has prioritized accountability for atrocities.  The statements are analogous to the decision by the U.S. government to pursue this strategy during the conflict in the former Yugoslavia.

Having intensive investigations for atrocities exerts pressure on Russian forces and leadership that their conduct may result in eventual indictments.  Even though Russia is not a member of the ICC and is not likely to cooperate in the investigations or in surrendering any Russians who are indicted, the investigation and an indictment are punishment.  An indictment means the travel of an indicted will be limited and harm to their reputation.

History shows that indictments combined with sanctions against the country in which the indictee resides, and the continuation of sanctions until a country cooperates with the ICC, often harms the political stability of the indictee, if they are political leaders.  The weakening of political leaders is illustrated by events in Serbia and Sudan.   It weakened Slobadan Miloŝević.  He eventually lost power and was handed over to the ICC.  In 2009, journalist Gojko Berić commented that “(i)f there was no Hague, Miloŝević would probably still be in power.”  If nothing else, he would be the head of his party.  Similarly, probably Radovan Karadžić would have continued as a member of Parliament.  Ratko Madić could have continued as Chief of Staff of the Army.[1] Omar al-Bashir, the former head of state of Sudan, was weakened by the ICC indictment. Sudan’s leaders eventually arrested him and have said they will hand him to the ICC.[2]   In both Serbia and Sudan, the combined pressure of sanctions and criminal investigations and ultimately indictments debilitated the standing of the indictees.

Another reason to prioritize the atrocity investigations is to win the information war and the accompanying effort to persuade international organizations to expel and/or suspend Russia and/or start their own investigations.  On March 8, the OECD has suspended Russia and Belarus from participation while on March 16, the Council of Europe expelled Russia. [3] On March 4, the UN Human Rights Council agreed to establish a commission to investigate violations committed during Russia’s military attack on Ukraine.

The accumulation of statements condemning the alleged atrocities and the multiple investigations will likely  make some members of the military and political leadership hesitate to continue the attacks and/or eventually voice their objections or resign.  The statements about alleged atrocities will also lead to increased public attention and eventual pressure among some segments of the Russian population.

On March 9, Ukrainian Prosecutor General Iryna Venediktova has called for a “new model” of investigative efforts to tackle alleged war crimes in Ukraine, including the establishment of a special tribunal.

 

[1]    Diane Orentlicher, Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia  164-165 (2018).

[2]    Omar al-Bashir: Sudan agrees ex-president must face ICC, BBC,  February 11, 2020.

[3]    For additional discussion and analysis, see Michael Plachta, Council of Europe Terminates Membership of the Russian Federation, 38 Int’l Enforcement L. Rep. __ (Apr. 2022)

2021 Holiday Retrospective

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We at the IELR send you the best wishes for a warm and joyous holiday season.  2021 was momentous for the international enforcement community, and we are grateful to have had you following along with our coverage during our 37th year of discussing international enforcement developments.

Contributors

We are grateful for the continuing long partnership with Professor Michael Plachta and for contributions from practitioners and professors, including Dr. Ted Bromund, Frederick T. Davis, Michele Estlund, Dr. Scott MacDonald, Dennis Boyle, Konstantinos Magliveras, Yuriy Nemets, Spencer A. Hill, Peter D. Hardy, Kateryna Boguslavska, Matteo Formaggi, and Linda Friedman Ramirez. Miranda Bannister finished her tenure as assistant editor in February.  Marwah Adhoob, who specialized in criminology as an undergrad, energetically replaced her.  Our legal assistants Sara Kaufman and Emma Byrne ably contributed articles. Our interns, Mitchell Beebe, Elena Botts, Kayla DeAlto, Austin Max Scherer, Teddy David, Jamie Jang, Kenneth Boggess, and Julia V. Brock, contributed some great pieces.

The following is a highlight of some of the articles we covered.

International Criminal Court

The International Criminal Court was prominent in our coverage. Plachta discussed the territorial jurisdiction of the ICC in the Palestine/Israel Case as well as the ICC Prosecutor closing a preliminary examination in Colombia and concluding an agreement with the Colombian government. K. DeAlto discussed the Central African Republic’s surrender of Said Abdel Kani to the ICC.  M. Beebe and Zagaris wrote articles about the U.S. District Courts’ blocking President Trump’s executive order, sanctioning ICC officials. Zagaris discussed President Biden’s revocation of the Trump executive order.

War Crimes and Crimes against Humanity

On war crimes and crimes against humanity, Brock discussed the reversal by the South Korean court of the 2018 on “comfort women” and ordered Japan to pay reparations to the families of 12 women forced to work as sex slaves. Plachta discussed the ECHR’s decision on German responsibility for an air strike in Afghanistan.  David and Kaufman respectively discussed German courts’ convictions of a former Syrian secret police officer and a Syrian military doctor for crimes against humanity and Adhoob discussed a German court’s conviction of a woman for crimes against humanity in the death of a Yazdi girl in Syria.  Likewise, Adhoob detailed the enforcement actions of the UN with regards to genocide, such as UN’s opening of an inquiry into Sri Lanka’s alleged war crimes during its civil war as well as the UN investigation team’s conclusion that ISIL’s crimes against Yazidis constitute genocide.  Adhoob discussed a report by a U.S. law firm, finding France responsible for the Rwandan genocide.  Zagaris and Adhoob wrote about the UN Human Rights Council’s adoption of a resolution to start a Commission of Inquiry on the latest Israel-Palestine conduct. Jang discussed the African Union’s starting of a Commission of Inquiry on the war in Ethiopia. David wrote about the conviction in a Swiss court of a Liberian warlord, putting the spotlight on universal jurisdiction and Liberian accountability.  Zagaris covered the French Supreme Court’s overturning of the dismissal of complicity for crimes against humanity against multinational enterprise Lafarge for its conduct in Syria. Boggess discussed the UN Human Rights Council’s Independent Fact-Finding Mission renewing its mandate as a UN report warns of war crimes and crimes against humanity. Ramirez wrote about a judgment of the Inter-American Court of Human Rights, finding Colombia responsible for a journalist’s abduction twenty years before.

Tax transparency and Enforcement

With respect to tax transparency and enforcement, Zagaris wrote about the EU Parliament’s adoption of a resolution to toughen the tax haven blacklist, the OECD’s call for action to disrupt, prevent, and prosecute criminal conduct by professional enablers, the OECD’s new edition of fight tax crime, and the many cases against tax enablers, including the cum-ex dividend fraud cases, as well as a federal court’s approval of a John Doe Summons for a Panamanian law firm dealing with U.S. clients.  Scherer also wrote about how charges against professionals illustrate the shifting legal landscape for professional enablers. Zagaris also discussed the U.S. Tax Court decision against a constitutional challenge to passport denial for delinquent taxpayers and about a founder of a Russian bank pleading guilty to tax fraud, including falsifying his expatriation statement.  Zagaris discussed the Nigerian government’s start of voluntary offshore assets London declaration facilities and its application to foreign enablers.  Zagaris wrote about a CJEU decision mandating enforcement of tax information request even without the taxpayer’s specific name and identity.

Money Laundering, Bank Secrecy and Transparency

On money laundering, bank secrecy and transparency, Boguslavska discussed how the 10th Basel AML index highlights four worrying gaps in global AML efforts.  Zagaris wrote several articles on the Anti-Money Laundering Act of 2020, as well as FinCEN’s proposed regulations on beneficial ownership and the ANPRM on beneficial information on real estate purchases. MacDonald wrote about Suriname’s corruption and money laundering challenges.  Adhoob and Zagaris wrote about the FinCEN notice informing financial institutions of money laundering dangers from illicit art and antiquities trade. Plachta discussed the Council of Europe’s adoption of a resolution and recommendation on strengthening FIUs.  Zagaris discussed the Cayman AML regulator’s crack down after the FATF greylisting.   Scherer discussed how the Xizhi Li conviction showed an application of money laundering techniques for laundering drug proceeds on behalf of foreign drug-trafficking organizations. Zagaris discussed the implications of the Pandora Papers and the proposed new enforcement actions of the European Parliament in the wake of the Pandora Papers.

Counter-terrorism, Economic Sanctions and Human Rights

Counter-terrorism, economic sanctions and human rights were continuing topics.  Plachta discussed the adoption by the European Commission of a new counter-terrorism agenda and a proposal for amending Europol regulation.  Adhoob discussed the ACLU’s suit on alleged discrimination by the U.S. “no-fly list” against Arabs and Muslims.  Zagaris covered China’s adoption of blocking legislation and counter-sanctions. Bannister covered the Biden Administration’s countering the Trump Administration’s sanctions against the Houthi rebels in Yemen.  Zagaris discussed the ruling of the EU Advocate General that a German telecom cannot cancel a contract with an Iranian bank without showing the cancellation was not due to U.S. sanctions.

Counter-terrorism financing,

On counter-terrorism financing, Adhoob discussed U.S. prosecution of a woman extradited by the Dutch for terrorist financing through a charity.  Zagaris wrote about a French donor’s financial contributions to the U.S. alt-right before the capitol assault and the need to apply counter-terrorism financial enforcement tools as well as a meeting between G7 and EU Security ministers on cooperation on countering racially and ethnically motivated extremism.

Transnational Corruption and Asset Forfeiture

With respect to transnational corruption and asset forfeiture, Zagaris discussed the Justice Department’s civil forfeiture suit against two alleged Ukrainian kleptocrats, a settlement by Deutsche bank of an FCPA and commodities case.  Bannister and Adhoob covered in separate articles the fishrot scandal in Namibia, where Icelandic Samherji employees allegedly paid bribes to Namibian government officials for rights to fish for horse-maskerel. Boyle discussed the Biden Administration’s policy toward Central America and the challenges posed by corruption. Zagaris contributed a piece on U.S.-N. Triangle Enhanced Engagement Act setting the stage for new U.S. policy. Zagaris discussed the British Commission on Inquiry’s investigation of alleged corruption in the BVI as well as the Biden memorandum declaring anti-corruption a core U.S. national security interest.  Zagaris wrote about the Dutch court’s agreement with a report calling the Santos-linked Angolan energy deal corrupt.  Zagaris discussed the Amec Foster Wheeler’s global corruption settlement with the U.S., U.K., and Brazil.  Zagaris discussed the return by the U.S. government of an additional $452 million in forfeited 1MDB funds to Malaysia as well as the DOJ’s return of over $32m in forfeited funds to FIFA victims.

Illegal Production and Use of Weapons

With respect to the illegal production and use of weapons, Zagaris discussed a suit by the Mexican government against U.S. arms manufacturers for illicit trafficking in arms as well as the guilty plea in the U.S. in the first successful prosecution of exportation and manufacturing of firearms to the Mexican Cartels. Adhoob discussed the U.K. and U.S. sanctions on seven Russian agents and entities over the Alexi Navalny poisoning. Zagaris discussed a ECtHR’s decision finding Russia responsible for the assassination of Litvinenko and Britain naming a third Russian suspect in the poisoning of Skripal.

Extraterritorial Jurisdiction

Extraterritorial jurisdiction remained controversial.  Fred Davis discussed the Second Circuit’s decision, opening the door a bit to non-citizen defendants challenging a court’s jurisdiction in criminal cases and also the partial clarification by the Second Circuit of the procedures applicable to prosecution of foreign sovereign owned enterprises.  Zagaris discussed Bahrain’s return of a U.S. citizen to the U.S. to face charges of murdering his mother in Bahrain as well as an Italian court’s ordering four Egyptians to stand trial in the kidnapping and killing of an Italian student in Egypt. Zagaris wrote about a Spanish court’s ordering Banco de Chile to set aside $103 million for its role in money laundering from the Pinochet expropriations and about the EU Commission proposals for major revisions in its AML/CFT laws.

Recovery and Return of Cultural Property

On the recovery and return of cultural property, Zagaris discussed the German-Nigeria agreement on the return of Benin bronzes as well as the DOJ forfeiture action for 10th century statute looted from Cambodia, and the return by U.S. Homeland Security of hundreds of looted artifacts to Mali.  Adhoob covered the U.S. return of looted artifacts to Iraq stolen after the U.S. invasion as well as the discussion between Met officials and U.S. investigators of returning to Cambodia artifacts stolen from ancient sites.

Transnational Organized Crime

On transnational organized crime, Plachta discussed the consequences and prospects for the UN (Palermo) Convention against Transnational Organized Crime on its 20th anniversary.  Adhoob discussed the arrest by Italian police of suspected Black Axe members for fraud and other serious crimes.  Boggess covered the international dark web bust operation DarkHunTOR following the dark market seizure by U.S. and EU law enforcement.

On international narcotics enforcement, transnational organized crime and corruption, Zagaris wrote about Mexico exonerating its ex-defense chief and enacting a law pausing enforcement cooperation with the U.S.  Bannister wrote about the UN Commission on Narcotic Drugs’ vote to remove cannabis from the list of Schedule IV narcotics.  Zagaris wrote about the U.S. detention of the wife of “El Chapo” and the guilty plea to violating the Kingpin Act by the daughter of the head of the Cartel Jalisco Nueva Generación.  Hill and Hardy discussed a UN report targeting corruption and illicit cross-border finance.  Kaufman covered ANOM, a global covert investigation conducted by law enforcement worldwide through an encrypted App, yielding 800 arrests. Zagaris wrote about Mexico’s suit in U.S. court in Florida to recover assets from former security chief linked to the Sinaloa cartel.  Adhoob discussed the Italian police’s dismantlement of an international drug trafficking ring operated by the ‘Ndrangheta mafia clan.

International Environmental Enforcement

With respect to international environmental enforcement, Zagaris covered Kenya’s extradition of its citizen for trafficking rhino horns, elephant ivory, and heroin. Byrne discussed illicit ivory trafficking from Angola to Vietnam.  Adhoob wrote about the S. African arrest of a hunter for illegal possession of rhino horns.  Zagaris discussed how U.S. prosecutions of three wildlife trafficking violations show the rising incidence of these crimes.

Migration Enforcement

Migration enforcement received significant focus.  Byrne discussed the INTERPOL operation targeting human trafficking and migrant smuggling in approximately 24 countries.  Adhoob covered the U.S. State Department’s 2021 trafficking in persons report and the impact of misinformation and Covid-19 on human trafficking. Adhoob also discussed a State Department’s lawyer’s resignation due to a Biden Administration policy on asylum Kaufman discussed the 5th Circuit’s decision rejecting the Biden Administration’s efforts to end Migration Protections Protocols.  Plachta wrote about the EU’s responses to human smuggling in the Belarus border crisis.

International human rights and enforcement,

With respect to international human rights and enforcement, Plachta discussed the EU adoption of Magnitsky-type global human rights sanctions regime.  Magliveras discussed the first application of sanctions under the EU’S Magnitsky Act on Russia. Zagaris wrote about Turkey’s arrest of an Iranian dissident’s coinciding with Freedom House’s transnational repression report as well as about the signing by 58 nations of a declaration against arbitrary detention of foreign and dual nationals. Botts wrote about OFAC’s naming three Bulgarians under the Global Magnitsky Act for corruption.  Kaufman discussed how events in Haiti and C.A.R. show the threats posed by mercenaries to international peacekeeping.  Adhoob covered ECOWAS’ demanding answers in the alleged detention of Mali’s former interim leaders as well as Qatar’s imprisoning a Kenyan for blogging about low-income Kenyan migrants work conditions in Qatar.

Extradition and Extradition Alternatives

Developments on extradition and extradition alternatives remained critical.  Ramirez and Boggess wrote articles about the extradition of Venezuelan diplomat Alex Saab to the U.S., notwithstanding his claims of diplomatic immunity.  Zagaris wrote several articles about the Assange extradition decisions by U.K. courts and the U.S. extradition of the father and son for helping Carlos Ghosn escape from Japan.  Zagaris covered the S. African court’s overruling the Justice Minister in ruling the former Mozambique Finance Minister will be extradited to the U.S. rather than Mozambique.

Nemets discussed how the U.S. Immigration court’s handling of INTERPOL Red Notices and diffusions suggests a uniform approach.  Estlund and Bromund summarized and assessed the 2019 changes in INTERPOL’s rules on the processing of data.  Zagaris discussed the CJEU decision against detention for INTERPOL Red Notice due to ne bis in idem (dual criminality).

International Evidence Gathering

With respect to international evidence gathering, Jang discussed how the Gupta brothers’ corruption scandal invoked the ratification of a new mutual legal assistance and extradition treaty between S. Africa and the UAE.  Adhoob covered the Netherlands’ funding the Iraq UNITAD witness protection program to promote accountability for crimes committed by ISIL.

Economic Integration and International Enforcement

Plachta contributed many articles on economic integration and international enforcement, including the European Parliament’s call for improvement of implement and application of the European Arrest Warrant (EAW), and the EU Court of Justice’s rejection of “automatic refusal” of EAWs issued by Polish authorities. Zagaris discussed the Eurojust’s new funding initiative for joint investigation teams.  Scherer discussed the EU whistleblower protection directive the Jonathan Taylor extradition.  Plachta covered the adoption by the Council of Europe of a resolution on political responsibility for corruption as well as the European Commission releases of three proposals to strengthen and enhance police cooperation across the EU.

Maritime Piracy

On maritime piracy, Scherer discussed the shipping industry task force initiative against maritime piracy in the Gulf of Guinea. Adhoob discussed the Nigerian high court’s sentencing of 10 pirates for the hijack of a Chinese vessel.

International Tribunals

With respect to international tribunals, Zagaris discussed the affirmation by the Appeals Chamber of the International Residual Mechanism for Criminal Tribunals of the conviction of Ratko Mladić’ for genocide, crimes against humanity and war crimes, as well as the closure of the Special Tribunal for Lebanon and how the closure raises questions about international tribunals.

International Sex Trafficking

Mr. Zagaris contributed articles on international sex trafficking, especially the U.S. and Canadian charges against the Canadian fashion tycoon Peter J. Nygard.

Online Child Sex Exploitation Abuse

With respect to online child sex exploitation abuse, Zagaris covered U.S. indictments and INTERPOL’s pursuit of international enterprises and individuals involved in online sexual exploitation.  He wrote about the EU Justice & Home Affairs Council initiatives on the digital dimension of child sexual abuse.

Cybercrime

Cybercrime continued to grow exponentially. Zagaris discussed cooperation between the EU and eight countries in taking down dangerous the malware EMOTET, the DOJ’s participation in global disruption of NetWalker ransomware, and Australia’s extradition of two defendants in an auto-subscribing cyber fraud scheme.  Zagaris discussed the U.S. indictment against three N. Korean military hackers.  Adhoob discussed the imposition by the Biden Administration of sanctions against Russia for alleged election interference and SolarWinds cyber hacks as well as the guilty plea of a crypto expert to assisting N. Korea evade sanctions.  Zagaris covered U.S. sanctions against a Russian-owned crypto-exchange for ransomware activities as well as the U.S. indictment and sanctions against Iranians for cyber-enabled disinformation regarding the 2020 Presidential Campaign.  Scherer wrote about cases involving the seizing illicit proceeds of and combating ransomware attacks.  Zagaris covered the guilty plea by the director and promoter of BitConnect for its participative in a massive fraud conspiracy. Formaggi discussed China’s declaration of all cryptocurrency transactions illegal while the U.S. and EU prepared further crypto regulation.  Zagaris discussed the arrests and seizures by 17 countries of alleged ransomware extortionists.  Plachta covered the adoption by the Council of Europe of the Second Protocol to the Cybercrime (“Budapest”) Convention.

International Anti-trust Enforcement Cooperation

On international anti-trust enforcement cooperation, Zagaris discussed the DOJ’s Antitrust Division summary of its 2020 international achievements.

Export Control and Economic Sanctions

With respect to export control and economic sanctions, Boggess discussed the CEO quitting after the U.S. Commerce Department blacklisted Israeli spyware firm NSO Group. Zagaris wrote about the Mashreqbank settlement with OFAC, the Federal Reserve and NYDFS for violating the Sudan sanctions.

Illegal, Unregulated, and Unreported Fishing

With respect to illegal, unregulated, and unreported fishing, Adhoob wrote about Bolivia’s signing an MOU to strengthen compliance/transparency in the fishing industry.

Spanish Court Advises Banco de Chile to Set Aside $103M for Money Laundering from Pinochet Expropriations

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On July 29, 2021, the Seventh Court of Guarantee of Santiago (El Séptimo Juzgado de Garantía de Santiago) reopened an investigation into whether the Banco de Chile helped the former dictator Augusto Pinochet launder money.  It notified the Supreme Court of Chile of the reopening of the case and advised the bank, whose ownership in related to the Pinochet family, to set aside $103 million.[1]

The Spanish Court’s Decision

The plaintiffs are led by the President Allende Foundation, named after the former President Salvador Allende, whom Pinochet overthrew in a coup.  The Foundation represents more than 20,000 victims of the Pinochet dictatorship.  The plaintiffs allege the funds were obtained by illegal expropriations by General Pinochet and his associates and transferred to personal offshore accounts.  The complaints allege that the transfers constituted acts of tax evasion and money laundering, which the Banco de Chile assisted.[2]

In 1998, Spanish judge Baltasar Garzon ordered Pinochet detained for crimes against humanity.  Spain requested Pinochet’s extradition from England.  Although the English courts ordered him extradited, the British Home Office ordered that he not be extradited due to humanitarian considerations, namely his age and failing health.  General Pinochet died under house arrest in Chile in 2006 without being tried.

Banco de Chile, the Alleged Enabler, and the Luksić Family

Banco de Chile successfully claimed for years that Chile rather than Spain has jurisdiction to investigate the allegations.  In 2013, the Chilean judiciary closed a money laundering investigation without charging the general or anyone else.  A study commissioned by the Chilean Supreme Court stated only $2 million of the $21 million identified as Pinochet’s personal wealth could be considered clean.

In 2018, Chile’s Supreme Court ordered the return of $1.6 million of Pinochet’s assets.  It convicted three of his former generals for fraud connected to public money.  Banco de Chile paid Chilean authorities $3.1 million in 2009 for administrative irregularities concerning General Pinochet’s money.  However, the bank was never indicted.[3]

Although the court told Banco de Chile it should set aside $103 million to cover potential payments to the victims, it has not yet ordered it to do so.  Banco de Chile has deposits in around ten countries, six in the European Union.

Quiñenco is the majority owner of the Banco de Chile.  The Luksić family has Quiñenco as its holding company.  Vladimir Luksić was the brother-in-law of Augusto Pinochet.

Prosecutor José Morales has also charged Anita María Pinochet Ribbeck, the spouse of former army general, Juan Miguel Fuente-Alba, and Fuente-Alba, with money laundering.[4]

Morales claims that a report of the Financial Intelligence Agency shows the pair increased their wealth more than 280% between 2010 and 2016 by hiding and falsify the illegal source of their funds.  The defendants, represented by Cuatrecasas, one of the largest Spanish firms specializing in tax and money laundering, tried unsuccessfully to dismiss the case.[5]

Analysis

Spain has extraterritorial jurisdiction for Spanish victims.  Already the Spanish courts imposed a penalty against Riggs Banks for alerting General Pinochet’s to move the money in his accounts in London ahead of Garzon’s request that Britain to freeze his accounts.[6]

This case should be watched for its efforts to hold accountable Banco de Chile, the alleged enabler, almost 23 years after the initial charges in Spain.

Spain’s wide-ranging tax collection and enforcement and mutual assistance agreements with the EU countries may play an important role in this case.

The case illustrates the use of extraterritorial jurisdiction when a court believes a foreign court, although exercising jurisdiction, have not properly adjudicated the case.

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

[1]    Raphael Minder, Spain Reopens Pinochet Inquiry Into Tax Evasion and Laundering, N.Y. Times, July 31, 2021, at A7, col.1.

[2]    Spanish court targets Chilean bank linked to Pinochet, July 30, 2021 https://www.hebergementwebs.com/europe/spanish-court-targets-chilean-bank-linked-to-pinochet.

[3]    Id.

[4]    They Decide on a Bond for Ana Maria Pinochet, spouse of the Former General Fuente-Alba, after the Money Laundering Charges (Decretan arraigo para Ana María Pinochet, esposa del ex general Fuente-Alba, tras ser formalizada por lavado de dinero, El Mercurio, July 29, 2021).

[5]    Id.

[6]    Spanish court targets Chilean bank linked to Pinochet, supra.

ABA CJS Int’l Comte Meeting on US-Brazil Jt Settlements et al

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The ABA Crim. Just. Sec. Int’l Comte, which I co-chair, will meet on Thurs. Aug. 5 from 2:00-3:00 pm E.S.T. via Zoom as part of the ABA Hybrid Annual Meeting. Everyone is welcome to attend, including non-members.

Join Zoom Meeting
americanbar.zoom.us/j/…

Meeting ID: 977 9733 8444
Passcode: 264266

Find your local number: https://lnkd.in/d2aAsEz

Guest Speakers
Antenor Madruga and Ana Belotto, both of Feldens Madruga, in Brazil, will join us to discuss “US-Brazilian Joint Criminal Settlements: Trends and Implications for Stakeholders”
The panelists will discuss recent joint settlements between the U.S. , Brazil and other countries, including the Amec Foster Wheeler settlements (June 25 in the US and July 2 in the UK), Rolls-Royce, and others. They will discuss the trends and implications for stakeholders of joint settlements and other developments in international criminal cooperation.
Antenor Madruga has a PhD in international Law, is the founding partner at the FeldensMadruga law firm in Brazil. He is recognized as a leading Brazilian lawyer in complex litigations and negotiations involving government criminal and administrative proceedings, particularly in multijurisdictional cases.
Ana Belotto coordinates the Compliance practice at FeldensMadruga with a special focus on AML and anti-corruption matters. Has participated in the negotiation of complex multijurisdictional leniency agreements involving criminal, civil and administrative matters. She is a member of the New York Bar and is a registered Solicitor at the Law Society of England and Wales

Other Agenda Items
The Committee will also discuss other developments in the field and Committee business, such as the proposed resolution on joint settlements, and its recent webinar on “Abusing Interpol’s Resources to Persecute Expatriate Dissidents” on July 14. 

Video Conferencing, Web Conferencing, Online Meetings, Screen Sharing – Zoom

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.

 

 

INTERPOL Claims Immunity, Escapes Judicial Review of Lack of Due Process

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by Yuriy L. Nemets[1]

 

For many years, repressive political regimes have used INTERPOL as a powerful tool in politically motivated and otherwise corrupt prosecutions. INTERPOL has established a redress mechanism for victims of such abuse. The mechanism, however, lacks due process and is full of loopholes that allow the abuse to continue. Despite numerous calls over the years from advocacy organizations, human rights activists and politicians to carry out all the necessary reforms, INTERPOL has given no indication that it is willing to do so. After all, as a recent decision by a U.S. federal court shows, what incentive does INTERPOL have to fight non-democratic countries if democratic countries are willing to protect it from their own courts?

The El Omari Decision

On May 13 of this year, the District Court for the Eastern District of New York dismissed a lawsuit filed by Oussama El Omari against INTERPOL due to the immunity that the latter enjoys under the International Organizations Immunities Act (IOIA). The plaintiff, a U.S. citizen, argued that INTERPOL’s issuance and refusal to delete from its databases a Red Notice, a request to locate and provisionally arrest him for the purposes of his extradition, constituted negligent infliction of emotional distress and violated his due process rights under the New York State Constitution. INTERPOL issued the Red Notice at the request of the United Arab Emirates where the plaintiff had been convicted for embezzlement and abuse of power. Prior to filing the lawsuit, El Omari submitted a complaint to INTERPOL requesting that the Red Notice be deleted and a hearing at which he intended to appear with his counsel and an expert witness be scheduled. INTERPOL denied both of El Omari’s requests as well as his subsequent request to reconsider.

IOIA guarantees international organizations “immunity from suit and every form of judicial process as is enjoyed by foreign governments.” It defines an “international organization” as a “public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and which shall have been designated by the President through appropriate Executive order as being entitled to enjoy the privileges, exemptions, and immunities provided in this subchapter.” The District Court concluded that INTERPOL falls under this definition.

In 1983, President Reagan, by executive order, granted INTERPOL the privileges, exemptions and immunities recognized under IOIA with the exception of inviolability of archives and immunity from search and confiscation of property and assets, customs duties, certain federal taxes and social security payments. In 1995, President Clinton partially reversed that order and granted INTERPOL immunity from customs duties and federal importation taxes. In 2009, President Obama removed the remaining limitations imposed by President Reagan.

The District Court in El Omari v. INTERPOL explained that it “lacks subject matter jurisdiction and must dismiss a claim where defendant organization is immune from suit.” IOIA guarantees international organizations immunity from lawsuits and courts unless expressly waived “for the purpose of any proceedings or by the terms of any contract.” No such waiver existed in this case, the District Court concluded.

Implications of the Decision and Inability of Applicants to Obtain Hearing at INTERPOL

It is no surprise that INTERPOL denied El Omari’s complaint without holding a hearing.  Under INTERPOL’s rules, it adjudicates complaints based on the parties’ written submissions; a hearing is held only if INTERPOL considers it necessary. To this day, more than a decade since the rule was adopted, there seems to be no known case in which INTERPOL held a hearing. Individuals who challenge government abuse of INTERPOL’s channels through its redress mechanism also lack both the right to examine evidence produced against them and the right to appeal INTERPOL’s decisions denying them relief. Moreover, by INTERPOL’s own admission, there have been cases in which governments already found to be in violation of its Red Notice rules were able to use its resources against the same individuals, either by disseminating new requests to seek their arrest or by issuing false alerts that these individuals’ travel documents were lost or stolen. Thus, not only does INTERPOL fail to guarantee individuals due process when it considers their complaints, it also lacks comprehensive enforcement of its own decisions against governments that abuse its channels.

INTERPOL does not seem to be willing to punish governments that violate its rules either. The best known case is Turkey. In 2017, the government of President Erdoğan reportedly tried to put 60,000 individuals it accused of affiliation with the Fethullah Gülen opposition movement on the INTERPOL wanted list, an unprecedented and brazen attempt to abuse the organization’s channels for political purposes. INTERPOL denied reports that it sanctioned Turkey for its conduct. Moreover, this November, Turkey will host INTERPOL’s 89th General Assembly, the “supreme governing body” for the organization.  This General Assembly will elect new members of the Commission for the Control of INTERPOL’s Files, which has exclusive jurisdiction to adjudicate complaints against government abuse of the organization’s channels. Members of the Commission are elected for a term of five years and can be reelected for an additional three years.

In the meantime, the number of Red Notices and other government requests disseminated via INTERPOL continues to grow while victims of INTERPOL abuse are trapped in a vicious circle – autocracies grow ever more confident that they can abuse the organization with impunity, the latter refuses to reform itself, and democratic governments not only fail to exert any real pressure on INTERPOL but instead shield it from liability, thereby denying victims any recourse.

[1]    Managing Member at NEMETS, Washington, D.C.  Founder of Red Notice Abuse Report – RedNoticeAbuse.com @rednoticeabuse.

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