IELR Blog

Official Blog of the International Enforcement Law Reporter

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.

Frank Vogl’s Book on Enablers Underscores the Link between Corruption and Democracy

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The Enablers: How the West Supports Kleptocrats and Corruption – Endangering Our Democracy (Roman & Littlefield, 2021, ISBN-13: 978-1538162828, ISBN-10: 1538162822)

Frank Vogl, the co-founder and former vice-chairman of the leading global organization fighting corruption, Transparency International, and the chairman of another, the Partnership for Transparency Fund,  discusses the role of enablers in facilitating corruption, especially cross-border corruption.  He discusses the key  roles the enablers play in serving kleptocrats in many countries, including Russia, China, Iran, Egypt, Hungary, and Nigeria.  He describes the enormous sums of government funds that have been stolen and laundered on a rapidly rising scale into investments in the wealthiest Western nations with the help of firms like Goldman Sachs, Deutsche Bank, BNP-Paribas, and HSBC, alongside leading law firms, auditors, real estate brokers based in the world’s major financial centers.

Vogl, who served for 20 years as the international communications advisor to the Institute of International Finance (IIF), the leading association of the world’s largest banks, and who also served as the communications advisor to the Group of 30 (the association of former finance ministers and central bank governors), uses  first-hand experiences to tell the stories that demonstrate  that the leaders of our financial system are failing to work in the public interest – too many of their activities add wealth, and inevitably power, to Putin and his cronies in Russia, and to other leaders who work  to undermine Western democracy and challenge its security. According to Vogl, greed and short-term profit maximization dominate banking culture today with dangerous consequences.

Vogl develops examples from across the world to call for far-reaching reforms: from reforming banking and the sovereign bond markets, to enacting new anti-corruption laws, and, most importantly, substantially increasing law enforcement. He argues that the chairmen and CEOs of major banks that are caught laundering billions of dollars should be held accountable. According to Vogl, EU authorities should step up financial regulation. He underscores the need to expose and counteract the excessive influence of the City of London’s leaders on preventing serious investigations and prosecutions of their entanglements with foreign kleptocratic clients.

Vogl argues that, if President Biden is to be credible in his strategy to strengthen democracy and contain authoritarianism, then he must not only increase U.S. leadership in fighting corruption abroad, but he must also act urgently to contain the enablers at home. This book explains why and how  several reforms can obtain powerful bi-partisan political support.

Vogl calls for the need for political leadership and multilateral action in the G20 and other international networks and formal international organizations.

On November 15, 2021, Global Financial Integrity hosted a webinar was held on the book.  Participating were: Frank Vogl; Tom Cardamone President and CEO, Global Financial Integrity, moderator; Raymond Baker Founder, Global Financial Integrity; Zoë Reiter Director of Civic Engagement, Project on Government Oversight; and Alexandra Gillies Advisor, Natural Resource Governance Institute.  One of the themes of the webinar was the need to underscore and reform the erosion of transparency plaguing the United States government.

Vogl in his book and during the webinar underscore the potential importance of the Summit on Democracy.  On December 9-10, 2021, President Biden will host the first of two Summits for Democracy, which will bring together leaders from government, civil society, and the private sector to set forth an affirmative agenda for democratic renewal and to tackle the greatest threats faced by democracies today through collective action.

They underscored the need for a transnational approach and discussed the interplay of corruption, financial regulation, and climate control.  Global witness has issued several blog posts on the role of finance and climate control.  See, e.g., https://www.globalwitness.org/en/blog/our-verdict-cop26-compromise-catastrophe.

For persons interested in the contemporary links in the United States and internationally between corruption and reform efforts, especially related to the financial aspects, this book provides some incisive perspectives and solutions.

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

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

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

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

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

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

The U.S. Sanctions

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

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

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

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

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

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

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

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

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

Corruption, Illicit Financial Activities, and Misuse of Shell Companies

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

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

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

Ransomware

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

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

Removing Forced Labor from Global Supply Chains

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

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

International Human Rights Concerns

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

Analysis

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

 

[1]   G7 Communique, paragr. 48.

[2]   G7 Communique, paragr. 51.

[3]    G7 Communique, paragr. 29.

Biden Administration Declares Anti-Corruption a “Core U.S. National Security Interest”

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On June 3, 2021, the Biden Administration released a memorandum establishing combating corruption as a core United States national security interest, thereby stimulating several international anti-corruption initiatives.

The memorandum promises to make the fight against corruption a core U.S. national security interest.  The Biden Administration promises to “lead efforts to promote good governance; bring transparency to the United States and global financial systems; prevent and combat corruption at home and abroad; and make it increasingly difficult for corrupt actors to shield their activities.”

The memorandum directs Assistant to the President and National Security Advisor, in coordination with the Assistant to the President for Economic Policy and the Assistant to the President for Domestic Policy, to conduct an interagency review process.  The interagency review process will include the Office of the Vice President and fourteen agencies.

Strategy Components

The above-mentioned persons and agencies are directed to develop a Presidential strategy.  The strategy is to modernize, increase, coordinate, resource and improve the ability of key agencies to promote good governance and prevent and combat corruption, including, as required, by proposing relevant legislation to the Congress.

Another component of the strategy is to combat all forms of illicit finance in the U.S. and international financial systems, including by robustly implementing Federal law requiring U.S. companies to report their beneficial owner or owners to the Treasury Department; reducing offshore financial secrecy; improving information sharing; and, as necessary, identifying the need for new reforms.

The strategy will hold accountable corrupt individuals, transnational criminal organizations, and their facilitators, including by identifying, freezing, and recovering stolen assets through increased information sharing and intelligence collection and analysis, criminal or civil enforcement actions, advisories, and sanctions or other authorities , and where possible and appropriate, returning recovered assets for the benefit of the citizens harmed by corruption.

According to the memorandum, the strategy participants must strengthen the capacity of domestic and international institutions and multilateral bodies focused on establishing global anti-corruption norms, asset recovery, promoting financial transparency, encouraging open government, strengthening financial institutions’ frameworks to prevent corruption in development finance projects, and combating money laundering, illicit finance, and bribery, including, where possible, addressing the demand side of bribery.

A goal is to support and enhance the capacity of civil society, media, and other oversight and accountability actors to conduct research and analysis on corruption trends, advocate for preventative measures, investigate and uncover corruption, hold leaders accountable, and inform and support government accountability and reform efforts, and provide those actors a safe and open operating environment domestically and internationally.

The strategy will work with international partners to counteract strategic corruption by foreign leaders, foreign state-owned or affiliated enterprises, transnational criminal organizations, and other foreign actors and their domestic collaborators, including, by closing loopholes exploited by these actors to interfere with democratic processes in the U.S. and abroad.

Increasing efforts to quickly and flexibly enhance U.S. and partner resources of investigative, financial, technical, political, and other assistance to foreign countries that indicate the will to reduce corruption are part of the strategy.

The strategy will help and enhance the capacity of domestic, including State and local, authorities and institutions, as well as partner and other foreign governments at all levels, to implement transparency, oversight, and accountability measures, which will counter corruption and provide their citizens with accessible and usable information concerning government programs, policies, and spending.

A goal is to promote partnerships with the private sector and civil society to advocate for anti-corruption measures and act to prevent corruption.

A final priority is to develop best practices and enforcement mechanisms such that foreign assistance and security cooperation activities have built-in corruption prevention measures.

Analysis

The Memorandum states that, by effectively preventing and combating corruption and showing the advantages of transparent and accountable governance, the U.S. government can obtain a critical advantage for the U.S. and other democracies.   In his recent speeches President Biden has set as a challenge for the U.S. its battle with autocracies and dictatorships.

The Memorandum mentions the possibility of the inter-agency group supporting new legislation when appropriate.  In this regard, on February 4, 2021, U.S. Senators Ben Cardin (D-MD) and Roger Wicker (R-MS) introduced legislation to create a global anti-corruption action fund at the State Department to strengthen  the rule of law abroad and counter transnational corruption. The Countering Russian and Other Overseas Kleptocracy (CROOK) Act (S.158) – would fund programs by utilizing large  fines imposed under the Foreign Corrupt Practices Act against U.S. and foreign companies caught bribing foreign officials. In January 2021, Representatives Bill Keating (D-MA) and Brian Fitzpatrick (R-PA) introduced a companion draft (H.R.402) in the House.

The Memorandum prioritizes combating all forms of illicit finance in the U.S. and implementing Federal law requiring U.S. companies to report their beneficial ownership to the Treasury Department.  In this regard, the Corporate Transparency Act, enacted as part of the Anti-Money Laundering Act of 2020, requires the reporting of beneficial ownership information to Treasury’s FinCEN.  Although FinCEN has issued an Advance Notice of Proposed Rule-making, it may be 2023-24 before the regulations become effective.

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

Bill Introduced to Counter Foreign Corruption and Promote Good Governance

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On February 4, 2021, U.S. Senator Ben Cardin (D-Md.) and Senator Roger Wicker (R-Miss), incoming Chair of the U.S. Helsinki Commission and Co-Chair, respectively, re-introduced legislation that would strengthen the U.S. Government’s anti-corruption initiatives.  S.158, the Countering Russian and Other Overseas Kleptocracy Act, or CROOK Act, would create an anti-corrupt action fund to furnish additional funding targeting reform in foreign countries and streamlining work supporting the rule of law abroad.

Substance of the CROOK Act

As explained by its authors, the anti-corruption fund established in the CROOK Act would help countries where U.S. assistance could significantly increase the opportunities of successfully transitioning to democracy, combating corruption, and establishing the rule.  For instance, in 2014, Ukraine established important reforms.  In 2018, Ethiopia made important reforms after the election of a new Prime Minister.  After the December 2018 parliamentary election, Armenia made reforms.  The fund would provide a mechanism to allocate aid and take advantage of new political will more quickly.  The financing for the fund would come from a $5 million surcharge to individual companies and entities that receive a $5 million criminal fines and penalties above $50 million for violating the Foreign Corrupt Practices Act (FCPA).

S. 158 would create several complementary mechanisms to have a whole-of-government approach to U.S. efforts to fortify the rule of law abroad. These include an interagency taskforce;[1] the designation of embassy anti-corruption points of contact to liaise with the task force; reporting requirements designed to combat corruption, kleptocracy, and illicit finance; and a consolidated online platform for easy access to anti-corruption reports and materials.

In its introduction, the CROOK Act mentions systematic corruption in both Russia and China, and their pernicious effects on the U.S. and the world.

The CROOK Act expressly mentions the work of technical assistance programs that combat  corruption and strengthen the rule of law.  The latter includes  through assistance provided by the Department of  State’s Bureau of International Narcotics and Law  Enforcement Affairs and the U.S. Agency for International Development, and through programs like the Department of Justice’s Office of  Overseas Prosecutorial Development, Assistance and  Training and the International Criminal Investigative Training Assistance Program.  These programs can have lasting  and significant impacts for both foreign and U.S. interests.

Quickly civil society organizations, such as Transparency International U.S., endorsed the bill.

Analysis

The bill will help bring a more whole-of-government approach to U.S. anti-corruption policy.  It seems strange that so much emphasis in the bill and its marketing is on systematic corruption in two countries that coincidentally are U.S. rivals – Russia and China.  It follows a legislative trend.  Sec. 5506 of the Anti-Money Laundering Act (AMLA) of 2020, which is part of the National Defense Authorization Act, calls for Treasury study and strategy on money laundering by China, especially on the extent and effect of illicit finance risk concerning China and Chinese firms.  The latter includes financial institutions, an assessment of the illicit finance risks emanating from China, and a strategy to counter these money laundering activities.  Sec. 5507 of the AMLA requires a  study and report to Congress on how authoritarian regimes in foreign countries and their proxies use the U.S. financial system to conduct political influence operations, sustain kleptocratic methods of maintaining power, export corruption, fund nongovernmental organizations, media organizations, or academic initiatives in the U.S., and undermine democratic governance in the U.S. and the partners and allies of the U.S.

[1]    The inter-agency task force will be composed of representatives appointed by  the President from appropriate departments and agencies,  including the State Department, U.S.A.I.D.,  the Treasury Department, the Justice Department, Homeland Security, the Defense Department, the Commerce  Department, the Millennium Challenge Corporation, and the intelligence community.

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

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

   Suriname

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

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

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

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

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

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

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

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

Guyana

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

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

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

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

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

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

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

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

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

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

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

[4]    Charles, supra.

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

[6]    Charles, supra.

U.S. Brings Criminal Complaint and Imposes Sanctions against Russians for Election Interference

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On September 10, 2020, the U.S. Attorney for the Eastern District Virginia brought a criminal complaint against a Russian national for his alleged role in a conspiracy to use the stolen identities of real U.S. persons to open fraudulent accounts at banking and cryptocurrency exchanges.  Also on September 10, 2020, the U.S. Treasury Department imposed sanctions against Andriy Derkach.  He is a member of the Ukrainian Parliament.  Treasury says he has been “an active Russian agent for over a decade.”  Treasury accuses him of disseminating “edited audiotapes” and “substantiated allegations against U.S. and international political figures.”  The Treasury Department also imposed sanctions against three employees of the Internet Research Agency (IRA).   IRA is a troll farm in Russia that disseminates disinformation on social media as part of the Russian election interference campaign in 2016.

Complaint against Russian Project Lakhta Member

The 111-page criminal complaint and affidavit allege Artem Mikhaylovich Lifshits, 27, of St. Petersburg, Russia, operates as a manager in “Project Lakhta.”   The latter is based in Russia and engages in political and electoral interference activities.  Since  at least May 2014, Project Lakhta has tried to hide its conduct by acting through a number of entities, including IRA.  Lifshits served as manager since approximately 2017 for the Translator Department, which is allegedly responsible for much of the Project’s ongoing influence operations.

Lifshits allegedly conspired with Project Lakhta members to secure means of identification of real U.S. persons.  The conspirators then used these identities to open fraudulent accounts at banking and cryptocurrency exchanges in the victims’ names.  Lifshits and the conspirators allegedly employed these fraudulently opened accounts to promote Project Lakhta’s influence operations and personal enrichment.

Treasury Sanctions

Treasury designated Andrii Derkach (Derkach) pursuant to Executive Order (E.O.) 13848 for his efforts to influence the 2020 U.S. presidential election.  According to Treasury, “Derkach has directly or indirectly engaged in, sponsored, concealed, or otherwise been complicit in foreign interference in an attempt to undermine the upcoming 2020 U.S. presidential election.”

From at least late 2019 through mid-2020, Derkach conducted a covert influence campaign focused  on creating false and unsubstantiated narratives concerning U.S. officials in the upcoming 2020 Presidential Election, spurring corruption investigations in both Ukraine and the U.S. designed to influence the U.S. Presidential election day. The Western media covered Derkach’s unsubstantiated narratives through coverage of press conferences and other news events, including interviews and statements.

Between May and July 2020, Derkach disseminated  edited audio tapes and other unsupported information with the intent to discredit U.S. officials.  He made unsubstantiated allegations against U.S. and international political figures. Derkach almost certainly targeted the U.S. voters, prominent U.S. persons, and members of the U.S. government, based on his reliance on U.S. platforms, English-language documents and videos, and pro-Russian lobbyists in the United States used to propagate his claims.

The Treasury sanction does not mention that Rudolph W. Giulani, President Trump’s personal attorney, met twice with Derkach since late last year and publicized Derkach’s claims on his podcast and elsewhere.  Since late last year, Derkach has operated a campaign against Democratic Presidential candidate Joe Biden and former Ukrainian president Petro Poroshenko from Kyiv.  The campaign has included an English-language website and YouTube channel, and a conspiratorial flowchart showing Biden and financier George Soros at the center. fn1

Treasury also designated three IRA actors pursuant to E.O. 13694, as amended by E.O. 13757, and E.O. 13848 for having acted or purported to act for or on behalf of, directly or indirectly, the IRA, an entity designated pursuant to E.O. 13694, as amended, and E.O. 13848. Russian nationals Artem Lifshits, Anton Andreyev, and Darya Aslanova, as employees of the IRA, supported the IRA’s cryptocurrency accounts.

Department of Homeland Security Whistleblower Complaint about Intelligence re Russian Election Interference

On September 9, 2020, Rep. Adam Schiff (D-CA), the Chairman of the House Permanent Select Committee on Intelligence, announced that, as part of its ongoing investigation into the Department of Homeland Security (DHS) and the Office of Intelligence and Analysis (I&A), the Committee received a whistleblower reprisal complaint alleging serious wrongdoing by officials at the Department and reprisal against former I&A Acting Under Secretary Brian Murphy for making protected disclosures. Mr. Murphy filed the whistleblower reprisal complaint on September 8, 2020 with the DHS Office of Inspector General.

Rep. Schiff released a statement that “Murphy’s allegations are serious — from senior officials suppressing intelligence reports on Russia’s election interference and making false statements to Congress about terrorism threats at our southern border, to modifying intelligence assessments to match the President’s rhetoric on Antifa and minimizing the threat posed by white supremacists. We have requested Mr. Murphy’s testimony before the Committee, pursuant to subpoena if necessary, alongside other already scheduled interviews with other DHS officials.”

Analysis

The criminal complaint, sanctions, and whistleblower complaint show that Russian interference in U.S. elections is continuing.  The extent of the interference and the cooperation, if any, by members of the Republic National Committee and the Trump Administration are controverted.  Depending on the results of the U.S. election, the U.S. sanctions against Russia are likely to deepen.  The alleged interference is likely to  generate additional sanctions by Europe and other countries.  For European sanctions the case of Aleksei A. Navalny, the Russian opposition leader who is recovering from being poisoned, is important.  He has spoken to a German prosecutor about the attempt on his life and says he plans to return to Russia as soon as he has recovered.  The alleged poisoning of Navalny also potentially trigger sanctions under the the U.S. Global Magnitsky Act, which a number of countries have emulated. The current issue of the IELR will have more discussion on these matters in this blogpost.

FN 1     Paul Sonne, Josh Dawsey and Karoun Demirjian, Treasury penalizes Ukrainian it calls a ‘Russian agent’, Wash. Post, Sept. 11, 2020, at A10, col. 1.

 

Global Fragility Act Aims to Stabilize Conflict Zones and Prevent Wars

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

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

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

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

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

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

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

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

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

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

Bill to Curb INTERPOL Abuse Follows Helsinki Commission Hearing

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

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

Background

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

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

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

Opening Remarks

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

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

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

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

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

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

Testimony

The following witnesses testified:

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

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

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

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

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

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

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

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

Question and Answer

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

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

TRAP Act

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

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

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

Disclaimer

Nothing in this blog constitutes or is intended to constitute legal advice. Neither transmission nor receipt of such materials creates an attorney-client relationship. Blog readers and subscribers should consult with an attorney. This blog may be considered attorney advertising under the rules of some states. The hiring of an attorney is an important decision that should not be based solely upon advertisements. Prior results do not guarantee similar outcomes.

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