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PILPG Expert Roundtable on the Role of International Law in Ukraine/ Russia Conflict

February 24, 2022 by Bruce Zagaris Leave a Comment

After yesterday’s explosive news that Russia has begun invading Ukraine, international law experts are scrambling to predict the legal implications of such a historic action.

The PILPG Thought Leadership Initiative, will be organizing an expert roundtable on March 4th, from 12pm ET to 1pm ET on the role of international law in the newest developing conflict.

The topics which will be focused on will be sovereignty, territorial integrity, the crime of aggression, and the use of force. The event will be moderated by PILPG Managing Director Professor Milena Sterio.

2021 Holiday Retrospective

December 28, 2021 by Bruce Zagaris Leave a Comment

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 37^th 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 10^th 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 10^th 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

November 15, 2021 by Bruce Zagaris Leave a Comment

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.

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

June 24, 2021 by Bruce Zagaris Leave a Comment

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 1^st 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

June 17, 2021 by Bruce Zagaris Leave a Comment

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 89^th 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.

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

June 4, 2021 by Bruce Zagaris Leave a Comment

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.

Americas Ministers of Justice and Attorneys General Approve Recommendations to Use Information Technologies for International Cooperation

May 27, 2021 by Bruce Zagaris Leave a Comment

On May 18 and 19, 2021, the Ministers of Justice and Attorneys General of the member states of the Organization of American States (OAS) participated in the Eleventh Meeting of Ministers of Justice, or Other Ministers, or Attorneys General of the Americas (REMJA – XI). Ecuador hosted the virtual meeting. The Ecuadorian Attorney General, Dr. Diana Salazar, hosted the meeting.

During the meeting, the States made detailed recommendations on the use of information technologies (ICTs) in their justice systems and in international cooperation. The Justice Studies Center of the Americas (JSCA), the REMJA Working Group on Legal Cooperation in Criminal Matters, and the REMJA Working Group on Legal Cooperation against Cybercrime made presentations on the present state of affairs in the region and on their role in supporting the modernization of justice systems by, among other things, training prosecutors and judges, promoting international legal cooperation, and developing such instruments as proposed treaties, model laws, and guides to best practices.

International legal Cooperation in the Americas

REMJA XI recommends that the OAS members who have not yet become a member of the five regional cooperation agreements, do so promptly.

The meeting recommends that the Working Group on Legal Cooperation on Criminal Matters updates and considers the proposed “Protocol to the Inter-American Convention on Mutual Assistance in Criminal Matters regarding Joint Investigation Teams” (PENAL/doc.42/18). The Working Group should evaluate incorporating in it the use of ICTs, as appropriate, and that the OAS members study the possibility of initiating formalities with the appropriate bodies so that in the future, consideration may be given to its adoption.

Legal Cooperation Against Cybercrime

REMJA-XI urges the Chair of the REMJA Working Group to convene its Tenth Meeting in the first quarter of 2022, to develop effective and inclusive strategic approaches to fight cybercrime, bearing in mind the relevance of the Budapest Convention on Cybercrime in this regard; to develop national and regional cybercrime coordination, cooperation and training strategies and policies in OAS countries; and, to develop key principles for mainstreaming gender and inclusion into cybercrime capacity building efforts.

The meeting recommends that the OAS members that have not yet done so, consider evaluating to accede to the Council of Europe’s Convention on Cybercrime, and adopt the legal and other measures required for its implementation.

The meeting recommends fortifying, through the REMJA Working Group, four aspects of international cooperation: (i) capacity building, (ii) cybercrime evidence gathering, (iii) legal cooperation in cybercrime, and (iv) legislative developments.

Justice Studies Center of the Americas (JSCA)

REMJA-Xi congratulates the JSCA on the work since REMJA X in evaluating criminal justice reform processes; providing technical support for the implementation of reformed criminal justice systems in Mexico, Guatemala, El Salvador, Costa Rica, Panama, Colombia, Ecuador, Peru, Brazil, Paraguay, Uruguay, Chile, and Argentina, promoting new models for the management of prosecutors’ offices with the development of capacities for criminal analysis and strategic criminal prosecution; identifying and disseminating best practices in the investigation of complex crimes; fostering the improvement of criminal defense standards; promoting pre-trial services; and developing skills for criminal litigation, for the conduct of hearings, and for appraising evidence, together with court and case management models.

The meeting congratulates the JSCA and the U.S. Government on the agreement through the Bureau of International narcotics and Law Enforcement Affairs (INL) of the U.S. State Department to collaborate on the project Technical Support for the Implementation of the New Adversarial Criminal Justice System in Argentina’s Federal Justice System through the program Training Program on Criminal Investigation and Litigation in an Accusatory System for Justice Officials. Project implementation started in 2018 and has been extended to 2023.

Strengthening the REMJA

The meeting discusses steps to strengthen the REMJA, including that the annual OAS Regular Fund consider providing the necessary resources for holding the meetings that are to be organized within the REMJA process.

The meeting also recommends the establishment of a voluntary contribution fund into which states can make voluntary contributions to finance programs and projects in the areas covered by the REMJA process.

The current issue of the IELR (June) will discuss in more detail the decisions and implications of the decisions of REMJA-XI.

ABA CJS Int’l Crim. Law Comite Speakers Will Discuss Developments in Int’l Law Enforcement, Esp. the Impact of COVID and US Sanctions on the ICC

January 22, 2021 by Bruce Zagaris Leave a Comment

International Committee Mid-Year Double Header: (1) The Impact of COVID-19 on International Law Enforcement and (2) American Sanctions Relating to the International Criminal Court

At the CJS Committee on International Criminal Law Mid-Year meeting on Saturday, Feb. 20, 2021 from 3:45-515, there will be two short presentations.

Judith Friedman, a Senior Trial Attorney with the Criminal Division’s Office of International Affairs and winner of Norm Maleng Minister of Justice Award in 2020, will discuss Developments in International Law Enforcement, especially the impact of the Coronavirus”.

Kristin Smith, Esq., director of the Atrocity Crimes Initiative and Staff Attorney with ABA CJS, will discuss the US sanctions on the ICC and summarize the litigation (two cases: the OSJI v. Trump and the just filed Sadat v. Trump), as well as relevant ABA/ ICC Project activities and statements.

Below please find the ZOOM LINK for the International committee meeting: Saturday, February 20^th at 3:45 PM-5:15 PM Eastern Time.

Topic: International Committee Meeting (Please see attached for agenda)

Time: Feb 20, 2021 3:45 PM Eastern Time (US and Canada)

https://americanbar.zoom.us/j/98072937375?pwd=c2dTR2JudDF1OXNkS3FoV1NsUmF0UT09

Meeting ID: 980 7293 7375

Passcode: 422275

Also on the agenda are the following:

Prior meeting – substantive presentation
Committee Newsletter
past issue
new issue – call for contributions of articles and news
Potential issues for programs
international aspects of the Anti-Money Laundering Act of 2020
decision of SDNY of Jan. 4 of US Dist. Court Judge Katherine Polk Failla, enjoining US sanctions against persons associated with the ICC
Annual ABA Convention: potential program on extradition
Other substantive developments and policy issues

The meeting is open to non-Committee members.

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

December 5, 2020 by Bruce Zagaris Leave a Comment

By Yuriy Nemets*

Ability to Challenge INTERPOL Red Notices

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

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

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

2018 Annual Report Indicates Broadening of Redress Mechanism

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

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

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

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

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

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

U.S. Treasury Implements Sanctions against ICC Chief Prosecutor and Head of Cooperation Unit

September 2, 2020 by Bruce Zagaris Leave a Comment

On September 2, 2020, the United States Department of the Treasury added to the list of Specially Designated Nationals Fatou Bensouda, the Chief Prosecutor of the International Criminal Court (ICC), and Phakiso Mochochoko, the Head of the Jurisdiction, Complementarity and Cooperation Division.

The Treasury notice implements the executive order issued on June 11, 2020, by United States President Donald J. Trump imposing sanctions on “certain persons associated with the International Criminal Court.”

The Executive Order states the U.S. will impose tangible and significant consequences on those responsible for the ICC’s misconduct. They may include the suspension of entry into the U.S. of ICC officials, employees, and agents, as well as their immediate family members.

Even before the issuance of the Executive Order, the U.S. government had already revoked the visa of the ICC’s chief prosecutor, Fatou Bensouda. The Executive Order and sanctions may hinder the ICC’s recruitment of personnel.

The initial implementation selects the chief prosecutor and the individual in charge of enforcement cooperation. A major weakness of the ICC is its lack of its own police force, so that it cannot actually arrest an individual.

It remains to be determined how broadly the executive branch will apply the sanctions. This will be a major focus of persons interested in the court and in accountability for war crimes and crimes against humanity. The imposition of sanctions is a setback to the effort to hold perpetrators of crimes meriting universal jurisdiction accountable. The sanctions constitute an attack on international and national judicial independence. It sets a bad example for the rest of the world at the very time when democracy is in jeopardy and the world community is struggling to bring accountability for war crimes and crimes against humanity in longstanding conflicts, such as those in Afghanistan, Syria, Libya, and Yemen.

The sanctions undermine longstanding U.S. foreign policy to emphasize the rule of law and bring peace and stability by holding alleged perpetrators of crimes of universal jurisdiction accountable as well as prioritize international human rights. Especially when the sanctions are considered in the context of the U.S. still holding persons for twenty years in Guantanamo without trial, the sanctions will also hamper the ability of the U.S. to obtain international enforcement cooperation, especially from its allies.

During its annual meeting last month, the American Bar Association adopted Resolution 114, urging all national governments to “observe, respect, and protect the independence of the International Criminal Court.” It also “condemns threats by governments to the International Criminal Court and its officers and personnel in the performance of their duties.” Prior ABA policies and statements on the ICC and a timeline of the US-ICC relationship show that the ABA has from the start supported the operation of the ICC and U.S. proactive participation in it. The ABA ICC project’s board members, including former U.S. War Crime Ambassadors and a former Nuremberg prosecutor, have also written opinion pieces the Project’s board members wrote about the sanctions.

The implementation of the Executive Order against the ICC will further alienate U.S. relations with its closest allies, who are making contingency plans for the potential that Donald J. Trump may be re-elected. On July 17, 2020, European Union High Representative/Vice-President Josep Borrell made a statement on United States sanctions. He referred specifically to the U.S. unilateral sanctions against the ICC. Borrell said sanctions against those involved in the work of the ICC, its staff, and their families, as well as persons associated with the ICC, are unacceptable and unprecedented in scope and content.