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ICC Rejection of Prosecutors Call to Investigate US Service Members for Alleged War Crimes Reveals The Role of Political Power in International Legal Frameworks

April 13, 2019 by Evan Schleicher Leave a Comment

On Friday, April 12^th, the International Criminal Court’s pre-trial judges unanimously rejected a request by the court’s chief prosecutor to investigate alleged war crimes and crimes against humanity committed in Afghanistan. This was about a week after the US revoked ICC prosecutor Fatou Bensouda’s visa over her continuing push to investigate alleged war crimes and crimes against humanity, particularly pertaining to actions taken by US armed forces and the CIA between 2003 and 2004. For more background on this, please see a recent blog post we have written on this topic.

In their decision on a potential investigation, the judges focused on a lack of cooperation received by the prosecutor and the changing political landscape and instability in Afghanistan, suggesting that these conditions are likely to persist. The central issue at play is one briefly mentioned in our last piece: From an international enforcement perspective, the controversy concerns whether a powerful state can assert its power to give impunity to its nationals when they are under investigation for war crimes.

Article 27 of the Rome Statute was included to avoid this manipulation by powerful actors and to produce equal justice across the world and society. It reads:

This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

Amnesty International has criticized the ICC for failing to hold the line on these standards and for too often giving into state demands. The ICC giving into the political influence of states is clearly an issue in the Afghanistan example, given that the investigation was halted due to a lack of support from the United States. This is a general trend between the ICC and powerful states, as these states have continued to exert their authority in the face of ICC attempts at investigation and prosecution. To begin, although the Rome statute, which set up the court, came into force in 2002, and 123 states are party to it, the US, Russia, China, India and others such as Israel have either not ratified or have rejected the treaty. South African efforts to withdraw from the Rome Statute reveals that even the strongest supporters of the ICC can be fickle when their geopolitical interests are affected by the Court’s activities. The US has been particularly aggressive in threatening ICC officials, with National Security Adviser John Bolton threatening sanctions against ICC officials if they pursue cases against US citizens. Due to the ability of these powerful countries to avoid prosecution, virtually all its cases were in Africa, which has strained the Court’s political base as accusations have emerged of anti-African bias.

This row over ICC authority to investigate American service members and CIA officers has also created an interesting jurisdictional question, as the US objects to the ICC’s jurisdiction over nationals of non-member countries, absent a referral to the court by the United Nations Security Council. However, ICC prosecutors have argued that because Afghanistan is an ICC member country, they have the authority to investigate and prosecute crimes which were committed within Afghan borders. Precedent in the international system might favor the latter interpretation, given that national governments already have the legal authority to investigate and prosecute foreign individuals who commit crimes within their borders. The geography of the crime remains an important factor in determining the jurisdictional limits of different organizations and states and, in the context of the ICC, geographic jurisdiction can be overcome de imperio by the Security Council (with permanent member agreement). The US seems to have generally accepted this premise at a level short of war crimes, given that the State Department website advises that they cannot get US citizens out of jail, state to a court that anyone is guilty or innocent, provide legal advice, or serve as officials interpreters or translators.

The ICC’s lack of capacity to hold powerful states accountable will likely force it to continue to focus its investigations on poorer, less politically powerful countries. Despite attempts by international legal authorities to promote equal justice over the world, investigations and prosecutions coming out of the ICC will continue to promote a culture of immunity within powerful countries and will continue to over focus on African and other politically peripheral countries within the international system.

The current issue of the IELR will carry a more in-depth discussion of the decision by Professor Michael Plachta.

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Evan Schleicher is an Editorial Intern with the International Enforcement Law Reporter. He is also an MA candidate in Security Policy Studies at George Washington University’s Elliott School of International Affairs.

Iranian Hacking Raises Issues about Gaps in International Legal Frameworks involving Cyber-Attacks

April 3, 2019 by Evan Schleicher Leave a Comment

In late March, Microsoft reported that it had taken down 99 websites which had been used by a company referred to as Phosphorus to target the computer systems of businesses and government agencies, as well as activists and journalists involved in advocacy and reporting on issues relating to unrest in the Middle East. Microsoft obtained a federal judge’s approval on March 15 to disable the websites that it detected and had been tracking for six years. Although multiple intelligence agencies and groups pointed to Iran as the culprit, the difficulty of attributing cyber-attacks and operations to particular state actors and the lack of international legal frameworks to deal with cyber issues makes it highly likely that Iran will escape international condemnation.

To begin, effective attribution of attacks to state actors is difficult, complex, and highly time consuming. Most hackers have the technical capability to cover their tracks extremely well and an attack, even if it can be connected to a computer or a facility, often cannot be connected indelibly to specific individuals or groups. Further, because the process of global investigation requires the investigator to follow official, and at times bureaucratic, legal channels to request assistance, investigations can end up being subordinated to political agendas or to the whims of particular states. Thus, while the ability to conceal the source of attacks does become imminently more difficult as the attacks increase in both sophistication and in scale, it is still possible for deception, deflection, and misinformation to make it unclear exactly who is responsible for cyber-attacks.

Even in seemingly clear-cut cases, there is often significant skepticism about the source of attacks. For example, after the Obama Administration pinned the 2014 Sony hack on the Democratic People’s Republic of Korea, a variety of academics and hackers expressed public skepticism, pointing to things like a seeming insider’s knowledge of Sony systems and the ability of IP addresses to be used across geographies as evidence that the DPRK was not the Sony hacker. This uncertainty was also present in a hack discovered by McAfee which spanned 72 networks globally, including the United Nations, governments, and corporations. In characterizing the source of this attack, an expert at the Center for Strategic and International Studies said that the attack was “very likely” undertaken by China, while the Chinese said nothing and the Defense Department said that “it is unknown who is perpetuating these intrusions,” although it is known that China has been pursuing similar capabilities. Even in cases with clear motives, state actors retain significant capacity for plausible deniability.

Another equally pressing issue regarding cyber warfare is the relative absence of international legal standards governing cyber actions. In February 2018, UN Secretary-General Antonio Guterres gave two speeches in which he argued that a lack of rules governing cyber warfare and cyber conduct constituted a global threat. While some sources have argued that international legal standards already apply to cyber warfare and conduct, the United Nations (“UN”) Group of Governmental Experts (“GGE”) on Developments in the Field of Information and Telecommunications in the Context of International Security stated in 2013 that “the application of norms derived from existing international law . . . is essential to reduce risks to international peace, security and stability.” Such derivation requires extensive debate, discussion and, eventually, agreement, and thus cannot be merely extrapolated from existing laws. Unfortunately, consensus has yet to emerge, as GGE talks broke down in 2017, leaving the international legal community without agreed upon standards for applying existing international law to the cyber domain.

There is a set of guidelines derived from existing international law and generally accepted (at least implicitly) by Western countries – the Tallinn Manual. It is not followed by many countries, most notably Russia, due to the perception of Western bias in the manual itself. Russia has thus developed a similar, but not exactly parallel, set of standards based on the UN Charter, which specifically emphasizes respect for national sovereignty and non-interference.

Unfortunately, as there is insufficient evidence to support claims of a distinct customary international law rule of territorial sovereignty applicable to cyberspace operations, current norms remain insufficient to parse out the legal space in which cyber-attacks and warfare exist. Further, because the principle of sovereignty is differentially applied to different domains (land, sea, air, space), there would have to be legal consensus on how it applies to the domain of cyberspace before the principle could hold any legal weight.

The lack of easy, universal application of current international legal norms to cyber warfare is compounded by the tendency of powerful states such as Russia and the United States to use the development of cyber norms as a conduit by which to score policy wins. In October 2018, it was reported that “Russia [was] planning to submit two UN resolutions, one on a code of conduct to regulate states behavior in cyberspace and one on a new UN cybercrime convention.” The US, in response, publicly announced Russian complicity in multiple hacks, using this revelation to damage Russian progress on its resolutions. This oppositional approach has been consistent between the two countries, making it unlikely that any comprehensive international legal norms on cyber warfare will be agreed upon anytime soon.

In the absence of agreed upon norms, rogue actors such as Iran and Russia will be able to use cyber warfare with relative impunity. For example, by exploiting the gaps in the existing international structure regarding cyber-attacks – the difficulty of attribution and the lack of international legal norms – Russia has been able to win significant strategic victories with very little pushback from the international community. In Estonia in 2007, in Georgia in 2008, and in Ukraine beginning in 2014, the Russian government used cyber weapons to attack infrastructure and to produce widespread confusion. Specifically, in Ukraine, there has been a significant number of attacks. On December 23, 2015, malicious actors opened breakers at some 30 distribution substations in the capital city Kiev and western Ivano-Frankivsk region, causing more than 200,000 consumers to lose power. Nearly a year later, another substation was rendered powerless. Explaining the Russian strategy regarding these sorts of cyber-attacks, Thomas Rid, a professor in the War Studies department at King’s College London, put it simply: “They’re testing out red lines, what they can get away with…You push and see if you’re pushed back. If not, you try the next step”.

Given the poor track record of the international community and the United States in responding strongly to Russian cyber-attacks, it seems highly likely that they will fail to respond politically to Iranian (and other state actors) actions as well.

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Attempted Case of Wildlife Smuggling Reminds the International Community of Its Prevalence

March 29, 2019 by Alex Psilakis Leave a Comment

On March 25, 2019, Indonesian authorities detained a Russian man accused of attempting to smuggle an orangutan out of the country. Andrei Zhestkov, the suspect, claimed that he purchased the animal from a market for $3,000, believing that he could bring it home as a pet. When Indonesian authorities discovered the orangutan inside one of Zhestkov’s suitcases at the international airport in Bali, they did not find an aggressive, terrified animal as they feared, but one sound asleep. Authorities uncovered allergy pills wrapped in plastic amongst Zhestkov’s belongings, which he had mixed with milk and fed to the animal, pacifying it for up to three hours. While he has not yet been charged, Zhestkov could face up to five years in prison, as well as fines of up to $7,000 for smuggling. Indonesian authorities have not charged Zhestkov because they are investigating if he is any way connected to wildlife trafficking syndicates.

The case of Zhestkov is by no means unique. The illegal trade in wildlife is one of the most lucrative trades in the world. According to Interpol, the trade is valued at $20 billion a year. As it is so expansive, criminals often conduct other illicit activities in tandem with those toward wildlife, including money laundering, corruption, and document fraud.

In 2016, the United Nations Environment Programme (UNEP) and Interpol released a joint report analyzing the rise of environmental crime, which assesses topics including the illegal wildlife trade. The report stresses that the illegal wildlife trade is so lucrative because it is so vast. It involves all types of animals, including insects, reptiles, and mammals, and, depending on the case, those animals may be dead or alive. Individuals may use animals for a variety of reasons, be it for ornamental, medicinal, or pharmaceutical purposes.

While elephant and rhino poaching may be one of the most well-known cases when it comes to wildlife crimes – as poachers relentlessly pursue their highly-valued horns – other cases are proving incredibly prevalent as well. The pangolin, a mammal found throughout Africa and Asia, has become one of the world’s most targeted animals in the illegal wildlife trade. All Pangolin species are protected by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Nevertheless, from 2006 to 2016, well over one million Pangolins were killed or trafficked as a result of the trade. Pangolin populations in Asia have been hit hardest, as the demand for them is huge in China, where the scales are used for traditional medicinal purposes and the meat is viewed as a luxury item. Myanmar has proven one of the most frequently relied upon smuggling routes for Pangolin poachers, as its weak government, prime geographic location, and size make it highly appealing. Even though the Pangolin trade has proven this prevalent, authorities have worked to curb it, with Vietnamese officials seizing 4,000 kg worth of scales in 2015, and Myanmarese authorities making 52 seizures between 2010 and 2014.

In recent years, the international community has ramped up their efforts to combat the illegal wildlife trade. Interpol has been leading the charge in this effort. In 2015, they launched Operation Paws II, in which they seized 13 tons of pangolin products, which represented about 1,000 animals and more than $2 million worth of product. States involved enhanced their communication and intelligence sharing techniques by deploying cyber investigations, DNA analysis, and joint enforcement activities of on-the-ground personnel. In 2018, Interpol commenced one of their largest operations yet – Operation Thunderstorm. The operation targeted both the individuals and organizations behind wildlife crime. 92 countries took part in the month-long operation, which resulted in nearly 2,000 seizures, as well as the identification of approximately 1,400 suspects, alongside arrests. Animal products seized included 43 tons of wild meat and 1.3 tons of elephant ivory. Live animals were discovered as well, with authorities, for example, rescuing 48 live primates. Interpol partnered with a variety of international organizations in this effort, including the World Customs Organization (WCO) and the International Consortium on Combatting Wildlife Crime (ICCWC). WCO Secretary General Kuino Mikuriya praised the operation’s outcome, stating,

“By leveraging the global network of worldwide environmental law enforcement experts and customs community’s commitment to protecting wildlife, WCO and its partners have clearly illustrated the power and effectiveness of international cooperation in keeping our natural heritage safe, both now and for future generations.”

While the recent case of Andrei Zhestkov has reminded the international community of just how prevalent the illicit wildlife trade is, actions like Operation Thunderstorm emphasize how seriously international authorities treat the subject. Since the trade remains one of the most lucrative in the world, international enforcement authorities must remain vigilant in their efforts to seize and prevent acts of wildlife smuggling by both individuals and organized syndicates.

UN Report Labels South Sudanese Oil Industry as Key Driver of Continuing Conflict

March 19, 2019 by Evan Schleicher Leave a Comment

On February 20^th, the Commission on Human Rights in South Sudan, a United Nations Human Rights Council investigative body, released a report documenting continuing violations including potential war crimes and crimes against humanity, despite the signing of a peace agreement in October 2018.

The report is particularly notable from a legal perspective because it labels the South Sudanese oil industry as “a major driver for the continuing violence, the ensuing human suffering, and the violations of international humanitarian law witnessed there.” In fact, the three major joint oil ventures in the country, between Nile Petroleum Company, the state-owned oil company, and Chinese National Petroleum Company, Petronas of Malaysia, and the Indian Oil and Natural Gas Corporation, have already been designated by the U.S. Department of Commerce as violators of American policy and national security interests.

However, despite this, it must be asked: will these companies likely face any legal blowback for their purported involvement in the South Sudanese civil war?

The likelihood that these companies will face legal discipline for their actions within South Sudan seems to depend largely on the outcomes of two other cases which are currently underway.

In June of 2018, LafargeHolcim, a major French construction company, was placed under formal investigation on allegations of terrorist financing and aiding and abetting war crimes and crimes against humanity to continue operating in Syria during the civil war. This investigation arose from questions surrounding how the company was able to keep its plant in the city of Jalabiya in northern Syria running when the area was controlled by ISIS. French court documents indicate that LaFarge shelled out as much as $5 million to various armed groups.

Initially, in 2017, eight former executives were charged this case, which involves not only the payment of taxes and bribes to ISIS and other armed groups, but the selling of cement and other materials to those same groups. In October, investigators seized the severance payment given to Bruno Lafont upon his departure from the company. They also seized funds from two former managers in Jalabiya, Bruno Pescheux and Frederic Jolibois, as well as the former deputy general operating manager Christian Herrault, bringing the total sum of seized money to 3.7 million euros. On March 5^th, French judges dropped the charges against former Chief Executive Eric Olsen, saying that he was not involved in acts which could be considered terrorist financing.

It seems likely that at least some individuals will be charged in these cases, but a more institutional-level responsibility does not seem likely, especially because Olsen, the Chief Executive at the time of the illegal operations, was cleared of charges.

A similar situation has unfolded around Royal Dutch Shell in Nigeria. In 2009, the civil case of Wiwa v. Shell, which was heard in the federal district court of New York, was settled for $15.5 million. In 2013, a case forwarding a similar narrative was dismissed in the U.S. Supreme Court over a lack of jurisdiction. Most recently, the widows of four of nine men executed by Nigeria’s military regime in 1995 filed a civil lawsuit in 2016 seeking compensation and an apology from the Royal Dutch Shell company for their alleged complicity in the violent crackdowns that led to the deaths of these nine men. A hearing took place on February 12, 2019 and a decision is expected on May 8, 2019.

Several months after the announcement of this most recent civil case, Amnesty International urged the UK, Nigeria, and the Netherlands to consider criminal investigations against Shell, believing the company complicit in murder, rape, and torture in Nigeria. So far, no such case has materialized.

The reality may be that these cases will remain inconsistent. While the U.S. and Netherlands have thus far shied away from strong criminal investigations, the French have shown little pause in undertaking a criminal investigation of LaFarge.

To solve this problem, there must be a push to create better international consensus on how the complicity of transnational corporations in war crimes and crimes against humanity should be judged. The UN should establish a working group meant eventually to produce a convention governing the complicity of various third party actors in conflict environments as a means to clarify legal issues surrounding warfare.

In the absence of those standards, the punishments for the oil companies present in South Sudan will ultimately fall to the governments of Malaysia, China, and India. In this world of inconsistency, there is no telling whether these companies will ever be held accountable for their actions in South Sudan.

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EU Adds 9 Jurisdictions to Tax Haven Blacklist

March 13, 2019 by Bruce Zagaris 1 Comment

On March 12, 2019, the EU Finance Ministers updated the EU list of non-cooperative tax jurisdictions. The list now has 15 countries and is part of the EU’s fair taxation initiative.^[1]

The Commission explained that it assessed 92 countries based on three criteria: tax transparency, good governance and real economic activity, and the existence of a zero corporate tax rate. As a result of the assessment and pressure to avoid the blacklist, 60 countries acted and eliminated over 100 harmful regimes.

The Ministers blacklisted 15 countries. 5 have taken no commitments since the first blacklist adopted in 2017: American Samoa, Guam, Samoa, Trinidad and Tobago, and the U.S. Virgin Islands. 3 others were on the 2017 list, but were moved into the grey list following commitments they had taken. However. They have been blacklisted again for not following up: Barbados, the United Arab Emirates and the Marshall Islands.

7 additional countries were moved from the grey list to the blacklist for the same reason: Aruba, Belize, Bermuda, Fiji, Oman, Vanuatu, and Dominica. Another 34 countries will continue to undergo monitoring in 2019 (grey list), while 25 countries from the original screening process have been cleared.^[2]

The EU members have agreed on a set of countermeasures against listed countries. They can choose to apply them, including increased monitoring and audits, withholding taxes, special documentation requirements and anti-abuse provisions. The Commission will continue to support EU members’ work to develop a more coordinated approach to sanctions for the EU list in 2019. Additionally, new provisions in EU law forbid EU funds from being channeled or transited through entities in countries on the tax blacklist.

The EU will send a letter to all jurisdictions on the EU list, explaining the decision and what they can do to be de-listed. The Commission and Member States (Code of Conduct Group) will continue to monitor the jurisdictions that have until the end of 2019/2020 to deliver, and assess whether any other countries should be included in the EU listing process. The Commission will continue the dialogue and engagement with the jurisdictions concerned, to provide technical support and clarifications whenever needed and to discuss any tax matters of mutual concern.^[3]

Some of the targeted countries sent letters or made press releases, protesting their listing.

Approximately one week ago pressure from the U.S., Saudi Arabia and Panama prompted EU governments last week to block another blacklist of countries that show deficiencies in countering money laundering and terrorism financing.^[4]

A criticism of the EU listing initiative is that is does not include the many EU countries with international financial services, such as Ireland, Luxembourg, the Netherlands, Cyprus, Austria, Hungary, and the U.K. A continuing criticism is that, notwithstanding the EU’s statements of open and vigorous engagement, the targeted countries complain about ever-shifting and obscure standards and insufficient communication over the standards and the expectations from the EU. A continuing complaint is about the overlapping standards of the EU and OECD.

The March issue of the IELR will have a more comprehensive article on the new listing, including the responses of the targeted countries. See also EU Q & As on the list

[1] European Commission, Fair Taxation: EU updates list of non-cooperative tax jurisdictions, IP/19/1606, March 12, 2019.

[2] Id.

[3] European Commission, Fair Taxation: EU updates list of non-cooperative tax jurisdictions, supra.

[4] Id.

6th AIRCOP Meeting Discusses Detecting Illicit Traffic By Air

February 21, 2019 by Alex Psilakis Leave a Comment

On February 11, 2019, 90 representatives from various international organizations and national law enforcement agencies met at the INTERPOL headquarters in Lyon, France for the 6^th Global Meeting of the Airport Communication Project (AIRCOP). AIRCOP is a coordinated effort by the United Nations Office on Drugs and Crime (UNODC), INTERPOL, and the World Customs Organization (WCO). It strives to improve the capacities of international airports to catch and confiscate illicit goods including drugs, as well as high-risk passengers at any and all points of their journey.

The meeting, which ran from February 11 to 13, gathered a wide variety of attendees. It featured members from AIRCOP national focal points, particularly from countries in Africa, Latin America, the Caribbean, and the Middle East, where AIRCOP focuses their operations. It also included trainers and mentors from national law enforcement agencies that partner with AIRCOP, as well as international agencies that work alongside AIRCOP, including the International Civil Aviation Organization (ICAO) and the United Nations Office of Counter-Terrorism (UNOCT). Private donors, like the European Union (EU), also attended. The EU is the largest financial contributor to AIRCOP, largely because it began as an operation specific to the EU. In 2010, the EU launched the Cocaine Route Programme, which aimed to reduce cocaine trafficking to Europe via passenger transportation, cargo, and mail. Since then, the project has expanded in scale and scope, utilizing global cooperation to assist regions most vulnerable to drug trafficking.

The meeting touched on a variety of topics. Participants discussed the evolving threats that criminals pose, often appearing “smarter” or “faster” than national law enforcement personnel. They pointed specifically to organized crime and terrorism as threats AIRCOP must address. Attendees also reflected on AIRCOP’s past successes, achieved through cooperative techniques such as the sharing of best practices. Those successes include seizing eight tons of cocaine, $14.5 million in undeclared funds, and two persons wanted on INTERPOL Red Notices, among many others. Various high-level officials presented remarks outlining AIRCOP’s growth and success. UNODC Division for Operations Director Ms. Miwa Kato, for example, noted that, “Through our joint efforts, we have come a long way, not only by welcoming new countries, but also by targeting and combating all types of threats that occur on airport platforms.” Other premier personnel, including Tim Morris, INTERPOL Executive Director of Public Service, and Ana Hinojosa, WCO Director of Compliance and Facilitation, offered remarks as well.

AIRCOP has confronted – and continues to confront – an array of global issues. In 2017, they partnered with EUROPOL and the National Cyber-Forensics and Training Alliance (NCFTA) to crack down on an international airline ticket fraud scheme. While AIRCOP focused their operations on airports in Africa and the Middle East, they assisted in detaining a total of 195 individuals. Several of these individuals aimed to smuggle illicit substances across borders, using the cheaply purchased tickets to fly back and forth with greater frequency. Over 60 countries from around the globe participated in the operation. More recently, the UNODC – one of AIRCOP’s three branches – has noticed an increase in drug trafficking throughout West Africa, where the profits made from selling drugs routinely go to terrorist organizations. Although AIRCOP has noticed drugs like methamphetamine streaming through airports in Nigeria, Ghana, and Benin, the UNODC has stressed that drug trafficking is harming the entire region, with Executive Director Yury Fedotov noting that, “UNODC is registering new alarming trends on drug trafficking in West and Central Africa with disruptive and destabilizing effects on governance, security, economic growth, and public health.” Drugs transported throughout the region include not just methamphetamine, but heroine, cocaine, and a variety of opioids.

To confront these evolving and developing threats, AIRCOP must do exactly what they outlined in their 6^th Global Meeting – evolve and develop. The international organization has proven highly effective in shutting down illicit trafficking that flows through airports, and by continuing to improve the means by which member states share information and coordinate operations, AIRCOP may prove even more effective.

Third Russian Individual Potentially Tied to Skripal Under Investigation By Bulgaria

February 14, 2019 by Evan Schleicher Leave a Comment

Bulgaria has reopened a 2015 investigation into the poisoning of a prominent arms dealer after it emerged that this case might be connected to the nerve agent attack on former Russian spy Sergei Skripal, who was poisoned last year in the U.K. This occurred after Bellingcat, a watchdog that lauds itself as “the home of online investigations,” released a report which suggested that a third, “unknown” Russian operative in the British case was also connected to the 2015 case in Bulgaria.

A previous blog post, authored by Maria O’Sullivan, noted that “On June 27, 2018, the Organization for the Prohibition of Chemical Weapons (OPCW) gained the power to assign blame for chemical weapons attacks.” In a hopeful final note, this blog post mused that the measure “was a large stepping stone towards international accountability.” However, despite the promise which this measure still holds for accountability, measures taken by Russia and other countries have stifled its implementation and, by consequence, its potential effectiveness. Principally, Russia has refused to provide funding to the attribution mechanism and has demanded the return of its share of the unspent budget. It defends this decision by noting that of 193 nations, only 82 approved of the measure, while 24, including China, India, Russia, and Iran, opposed it, and many abstained. It is also telling that the Russian who sits on the Executive Council of the OPCW, Vladimir Kuznetsov, is a convicted money launderer who has been charged with accepting bribes and undermining humanitarian operations. While there is presently no publicly available evidence of corruption within the OPCW involving Kuznetsov, it is irrefutable that he has been involved in similar crimes in the past. When taken in concert with evidence that Syrian and Russian sources have colluded to obstruct investigations by the OPCW into chemical weapon use in Syria, this evidence seems to strongly indicate that Russia is attempting to escape culpability for attacks which it is widely believed to have committed.

Despite clear evidence of Russian evasion of OPCW investigations, it is unclear whether the Russian agents involved in the poisonings of Emilian Gebrev used substances banned by the Chemical Weapons Convention. In fact, Bulgarian investigators said on February 11, 2019 that “No substances from the Chemical Weapons Convention’s banned list were found” in the case of Gebrev. Additionally, they have not yet found a connection between this case and the case of Skripal, though the investigation is still ongoing at the time of this writing. However, despite the lack of a connection between these cases and despite an extensive Russian information campaign, it is clear that Russia was involved in the poisoning of Skripal and potentially that of Gebrev. Hard evidence including surveillance images of individuals who appear to be GRU operatives near the site of Skripal’s poisoning has made it difficult for Russian denials to gain major traction.

Given the previously mentioned facts, it is necessary to ask: Are U.S. and EU. sanctions against Russia legitimate and do they conform to the legal strictures of the Chemical Weapons Convention? The Russian Foreign Ministry has stated that “the EU is demonstrating a disregard for existing international legal instruments, including the Chemical Weapons Convention, by abrogating to itself the right to attribute blame for chemical weapons incidents.” This shift seems to concede to OPCW the ability to assign blame, which Russia had previously rejected. Further, it does little to respond to the base level justification of EU actions, which is that Russians have been tied to a chemical weapon attack on an individual. Having reviewed the evidence, the author believes that Russian agents were clearly implicated in the attacks, which would justify response by OPCW. However, because the OPCW did not claim the unilateral right to attribute blame for chemical weapons incidents, U.S. and EU actions would only be problematic if they directly contradicted conclusions made by OPCW. In the absence of an OPCW decision, it is instructive to look to the respective domestic laws of the U.S. and the EU to see if any violation has occurred.

It appears as though the EU is operating within its domestic legal frameworks, since these actions were undertaken after a domestic “decision in October to broaden the sanctions regime.” The U.S. has a similar domestic obligation to sanction individuals connected to Chemical and Biological Weapons Control and Warfare Elimination Act. From a purely legal perspective, this Act allows the U.S. to take the actions which it has taken, since the President is authorized under this Act to sanction individuals which he determines to have violated international law.

In sum, the actions taken against Russian GRU agents in response to the poisoning of Sergei Skripal are legal from an international perspective and fall in line with the intentions and direction of the OPCW. Corruption and political maneuvering have rendered the OPCW far less capable of making and enforcing decisions in cases such as that of Mr. Skripal. As such, it seems that the question is not whether the OPCW should blame Russians for the poisoning of Mr. Skripal, but whether it will, given the large, potentially corrupting influence of Russians within the organization.

INTERPOL Rolls Back Individual Right to Access Information in its Files, Makes it Harder to Fight Abusive Red Notices

December 12, 2018 by Yuriy Nemets Leave a Comment

Over the past several years, thanks to human rights advocates’ hard work and growing attention from the media, the general public has had the opportunity to learn more about how governments abuse INTERPOL to persecute political opponents and other victims of unlawful criminal prosecutions. The discussion about INTERPOL’s internal mechanism, which provides individuals the opportunity to fight the abuse, and its shortcomings, has travelled beyond scholarly publications and entered the general news cycle. INTERPOL, in turn, has carried out reforms to eliminate some of those shortcomings. The organization has rightfully been praised for the improvements it has made and called upon to close remaining serious loopholes. Yet these reforms have also limited the rights of victims of INTERPOL abuse, and it is what the victims have lost as a result of the reforms that hasn’t received wide attention.

Article 18 of INTERPOL’s Rules on the Processing of Data (RPD) proclaims: “Any person or entity shall be entitled to submit directly to the Commission for the Control of INTERPOL’s Files a request for access to, or correction and/or deletion of data processed in the INTERPOL Information System concerning that person or entity. These rights of access to, or correction and deletion of data shall be guaranteed by the Commission for the Control of INTERPOL’s Files and be governed by separate rules.”[1] The two sentences contradict each other. The first guarantees the right to submit a request for access only, whereas the second points to an unconditional right of access. The truth is that what INTERPOL has for a long time been loosely calling the “right of access” has never been an unconditional right.[2]

Under the Operating Rules of the Commission for the Control of INTERPOL’s Files, adopted in 2008, prior to providing an individual access to the information about her or him in INTERPOL’s databases, the Commission had to obtain consent from the government source of that information.[3] The rule, however, permitted the Commission to provide access without the government’s consent if the individual possessed “sufficient evidence showing that he/she [knew] that there [was] information about him/her in INTERPOL’s files.”[4] The latter provision made a difference. It is hard to overstate how critical it is for an individual, who is fighting a request to locate and provisionally arrest her or him pending extradition (red notice or diffusion), to access the information the government submits to INTERPOL. It is often impossible to prepare a comprehensive argument against an abusive red notice or diffusion without possessing all information recorded in INTERPOL’s files, and it is not uncommon for an individual fleeing persecution to be unaware of the full extent of the criminal prosecution, including all accusations on which the red notice or diffusion is based.[5] The provision, however, was repealed in 2017 as part of the reforms following the adoption of the Statute of the Commission for the Control of INTERPOL’s Files and the Commission’s new Operating Rules.

INTERPOL’s regulations do not directly address a situation in which a red notice or diffusion is based on several offenses only some which have been proven to be politically motivated or defy the Universal Declaration of Human Rights. The regulations, however, suggest how INTERPOL could approach such a situation, in which an individual successfully argued against all but one offence behind the red notice or diffusion. Consider Article 83(1)(c) of the RPD: “[I]f the request includes several offences, the red notice may be published for all offences that meet INTERPOL’s Rules provided that at least one offence meets the above criteria.” The “above criteria” refers to the minimum requirements a red notice must comply with: the offence behind a red notice must be a serious ordinary law crime, must not raise “controversial issues relating to behavioral or cultural norms,” “relate to family/private matters,” originate from a “violation of laws of an administrative nature” or “private disputes,” must satisfy the penalty threshold and be “of interest for the purposes of international police cooperation.”[6] Would INTERPOL apply this rule by analogy and publish a red notice or diffusion if the individual proved that all but one accusation, of which he was not aware, were politically motivated or defied the Universal Declaration of Human Rights and thereby violated the INTERPOL Constitution?

There seems to be no clear answer to this question from INTERPOL. Under the Commission’s Statute adopted as part of the recent reforms, a government must justify any restriction on the disclosure of information.[7] However, “[t]he absence of justification alone will not lead to the disclosure of the content of the information but may be taken into consideration by the [Commission’s] Requests Chamber in assessing and deciding on a request.”[8] At the same time, the RPD requires that to determine whether a red notice complies with Article 3 of its Constitution, which strictly prohibits INTERPOL from undertaking “any intervention or activities of a political, military, religious or racial character,”[9] the organization must examine “all relevant elements.”[10] Therefore, both the Statute and the RPD can be interpreted as giving the Commission the power to assess all information related to a red notice, including accusations an individual has not had the opportunity to address. However, even if the Commission adopted this approach, its assessment would often lack objectivity because it would not include the individual’s argument and evidence and would be limited to the government’s submissions and information in the public domain, if any.

By allowing individuals who possessed evidence of the existence of information about them in INTERPOL’s files access to that information without government authorization, the repealed rule guaranteed a fairer, closer to due process adjudication of their complaints.[11] The rule also provided INTERPOL with more opportunities to maintain neutrality and thereby comply with its Constitution.[12] By repealing the rule, INTERPOL harmed not only the victims of red notice and diffusion abuse but itself too.[13]

Governments known for their abuse of INTERPOL’s resources have wasted no time in taking advantage of the repeal of the rule. They have used it to limit access to individuals who possess evidence that there is information about them in the organization’s databases by either agreeing to release only part of the information (partial disclosure), or by denying access altogether. The Commission, in turn, has reportedly refused such individuals access without first obtaining consent from the respective governments, and explained this approach by citing the difference between the repealed rule, which explicitly empowered the Commission to disclose the information without consulting governments, and the new rules, which do not.

The repeal of the rule has negated much of the progress INTERPOL has made in protecting individuals from persecution, which the organization considers one of its “primary objectives.”[14] INTERPOL should reinstate the rule without delay. The organization should also change its approach towards individuals who do not possess evidence of the existence of information about them in its files. In this regard, in light of its refugee policy, INTERPOL should provide refugees unconditional access to the information about them.[15] Because INTERPOL must protect all individuals from persecution, not just refugees and individuals who possess evidence of the information recorded in its databases,[16] the organization should provide unconditional – without obtaining prior consent from a government – access to every other individual who can prove that there is a reason to believe that she or he may be a target of a politically motivated or otherwise unlawful prosecution which can be used as a basis for a red notice or diffusion.

Yuriy Nemets is the managing member at NEMETS, a law firm based in Washington, DC. Yuriy is an attorney with over fifteen years of experience in domestic and international litigation and arbitration, international extradition, corporate, banking, transportation, international trade and investments, and intellectual property law. He has authored publications about international extradition, corporate, banking, and intellectual property law.

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[1] INTERPOL’s Rules on the Processing of Data art. 18(1), (2), 2016, https://www.interpol.int/About-INTERPOL/Legal-materials [hereinafter RPD].

[2] See also Rules on the Control of Information and Access to INTERPOL’s Files art. 9(a), 11(a) II.E/RCIA/GA/2004(2009) (abrogated 2016).

[3] Operating Rules of the Commission for the Control of INTERPOL’s Files art. 14(1), II.E/RCCF/CCF/2008 (abrogated 2017).

[4] Id. art. 14(5).

[5] See Fair Trials, Dismantling the Tools of Oppression: Ending the Misuse of INTERPOL, 49 (Oct. 4, 2018), https://www.fairtrials.org/publication/dismantling-tools-oppression-1 (“Applicants need to have access to information about the data being held on INTERPOL’s databses, as well as the arguments being made, to justify the data. Without such information, applications will inevitable be based on guess work, and individuals cannot be expected to make focused, succinct complaints to challenge the data.”).

[6] RPD, supra note 1, art 83(1)(a).

[7] Statute of the Commission for the Control of INTERPOL’s Files art. 35(4), 2016, https://www.interpol.int/About-INTERPOL/Commission-for-the-Control-of-Files-CCF [hereinafter Statute].

[8] Id.

[9] Constitution of the ICPO-INTERPOL, art. 3, June 13, 1956, http://www.interpol.int/About-INTERPOL/Legal-materials/The-Constitution.

[10] RPD, supra note 1, art 34(3).

[11] See also Fair Trials, supra note 5, at 20, 21.

[12] See also INTERPOL, Neutrality (Article 3 of the Constitution), https://www.interpol.int/About-INTERPOL/Legal-materials/Neutrality-Article-3-of-the-Constitution.

[13] In this regard, Fair Trials argues that the rule, which provided individuals who were aware of their INTERPOL status access to the information, has been repealed because the Commission’s Statute and its new Operating Rules contain “new broader presumptions of disclosure” and promote “improved transparency and the equality of arms” and that the repeal is “unlikely to create significant changes in practice given [Fair Trials’] experience that this provision did not, in fact, lead to disclosure in such cases.” Fair Trials, supra note 5, at 45, 50. Regardless of the Commission’s unwillingness to comply with the now-repealed provision, the provision provided individuals aware of their INTERPOL status a clear basis to argue that they had the right of access independent of any government’s will. By repealing the provision, INTERPOL has eliminated that right and, thereby, moved further away from the presumption of disclosure and towards the presumption of secrecy. The latter, as Fair Trials has rightfully noted, “prevents even people who have good reasons to believe that they are subject to an INTERPOL alert from accessing the data.” Id. at 40.

[14] INTERPOL, supra note 12.

[15] Fair Trials, INTERPOL Text on Refugee Policy – Excerpts (last visited Dec. 11, 2018), https://www.fairtrials.org/wp-content/uploads/INTERPOL-TEXT-ON-REFUGEE-POLICY.pdf?platform=hootsuite; See also Fair Trials, supra note 5, at 56.

[16] INTERPOL, supra note 12.

INTERPOL Elects South Korean President, But Concerns About Red Notice Abuse Loom

November 26, 2018 by Evan Schleicher Leave a Comment

After a snap election in Dubai, South Korean Kim Jong Yang has officially been named INTERPOL’s new president.

Multiple news sources had previously reported that Alexander Prokopchuk, a Russian who has served as the INTERPOL vice chair for Europe since 2016, was the favorite to become the next President of INTERPOL.In recent weeks, Prokopchuk’s strong bid for the presidency led many international actors, including the United States, to openly decry the misuse of INTERPOL by authoritarian regimes as a political tool. These allegations did not begin with the Russian candidate. In fact, Chinese use of the ‘red notice’system under Meng Hongwei to target political and ideological opponents led groups like Human Rights Watch to declare that the system has long been abused to support particular political agendas. Sources show that in recent years there has been a sharp increase in the number of diffusions (in which a country requests that INTERPOL issue a ‘red notice’against an individual or group) and a less significant, but still apparent, increase in the number of ‘red notices’ issued.

The use of red notices as a political tool has damaged the supposed objectivity of INTERPOL, revealing that it is, at its root, largely dominated by international realpolitik. It is very telling that the US and European leaders who campaigned against Prokopchuk emphasized the need for INTERPOL to remain neutral and independent, arguing that electing a Russian president would lead to further abuses of power. Lithuania and Ukraine both threatened to leave INTERPOL altogether if Prokopchuk were to be elected. It is even more telling that, in response, the Russians accused the U.S. and other actors of overly politicizing the issue and of smearing Prokopchuk, a seasoned professional, in the name of personal gain. What this reveals is that, reflecting common trends across international institutions, states tend to use these institutions not as a mechanism to support rule of law, but rather as another site for the contestation of power and influence in international politics.

While many see Yang’s election as an uncontroversial choice, it does little to assuage concerns about the continued misuse and abuse of INTERPOL and its mechanisms. The number of red notices has increased since last year, even as Yang has been at the helm of INTERPOL for nearly two months of this year already, suggesting that his presidency might be merely more of the same. In fact, the truly troubling part of this saga is that countries used the the snap election as an opportunity to pursue highly partisan agendas, and that, in some sense, Yang’selection represents a highly partisan victory against Russia. Beyond that, the confusion of INTERPOL during the disappearance of its former president Meng raises significant concerns about its ability to uphold global rule of law and to counter partisan efforts to misuse INTERPOL’s institutions. All in all, this election has not resolved many of the tensions within INTERPOL, and many serious questions remain.

International Criminal Court Confirms Its Jurisdiction over Crimes Against the Rohingya

September 14, 2018 by Michael Plachta Leave a Comment

On September 6, 2018, the Pre-Trial Chamber I (PTC) of the International Criminal Court (ICC) in a move that commentators have haild as “surprising,” “bald,” “innovative,” and “significant,”[1]ruled 2-1 that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.[2]

This ruling was delivered following a request submitted by the ICC Prosecutor (OTP) pursuant to Article 19(3) of the Statute.[3] The OTP’s request was the first of its kind filed at the Court.[4]

The prosecutor’s office admitted that the coercive acts relevant to the deportations occurred on the territory of a State which is not a party to the Rome Statute (Myanmar). However, the Prosecution considers that the Court may nonetheless exercise jurisdiction under Article 12(2)(a) of the Rome Statute because an essential legal element of the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).[5]

The Court ruled it can prosecute Myanmar for alleged crimes against humanity against the Rohingya people, an “unprecedented decision” that could expose the country’s politicians and military leaders to charges.[6] The decision states that even though Myanmar is not a state party of the Rome Statute, its leaders can still be investigated for the crime of deportation.

The Court began by dealing with the core issue in this case –the question of jurisdiction. The judges chose to rely on the broadly-recognized principle of la compétence de la compétence or Kompetenz‑Kompetenz According to the principle, any international tribunal has the power to determine the extent of its own jurisdiction. In this case, the Chamber found that it has the power to entertain the Prosecutor’s request under Article 119(1) of the ICC Rome Statute.[7]

The Court noted that it is equally endowed with the power to determine the limits of its own jurisdiction. Indeed, Chambers of the ICC have consistently upheld the principle of la compétence de la compétence.[8]

The PTC noted that, in an April statement, the Myanmar government stressed that “Myanmar is not a party to the Rome Statute” and “the proposed claim for extension of jurisdiction exceeds the well enshrined principle that the ICC is a body which operates on behalf of, and with the consent of States Parties.”Nonetheless, the Chamber found that, in some circumstances consistent with principles of international law, the Statute may have an effect on States not Party to the Rome Statute.,.[9]

The Chamber stresseed that more than 120 States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity called the “International Criminal Court,” possessing objective international personality, and not merely personality recognized by them alone, together with the capacity to act against impunity for the most serious crimes of concern to the international community as a whole and which is complementary to national criminal jurisdictions.[10]

The judges also observed that “the objective legal personality of the Court does not imply either automatic or unconditional erga omnes jurisdiction.”.The conditions for the exercise of the Court’s jurisdiction are set out, first and foremost, in Articles 11, 12, 13, 14 and 15 of the Statute.[11]

Turning to the issue sub judice, the Chamber considered that it must first determine the scope of Article 7(1)(d) of the Statute before it can address the question whether the preconditions for the exercise of the Court’s jurisdiction pursuant to Article 12(2)(a) of the Statute have been satisfied. In this regard, the Chamber considers that the preconditions for the exercise of the Court’s jurisdiction pursuant to article 12(2)(a) of the Statute are, as a minimum, fulfilled if at least one legal element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party.[12]

Based on its legal analysis, the Chamber concluded that “acts of deportation initiated in a State not Party to the Statute (through expulsion or other coercive acts) and completed in a State Party to the Statute” (when victims crossed the border to a State) are included within the application of Article 12(2)(a) of the Statute. It follows that, in the circumstances identified in the OTP Request, the Court has jurisdiction over the alleged deportation of the Rohingya from Myanmar to Bangladesh, “provided that such allegations are established to the required threshold.”[13]

Having delivered this ruling, the Chamber went further, deciding that “the rationale of its determination as to the Court’s jurisdiction in relation to the crime of deportation may apply to other crimes within the jurisdiction of the Court as well.”[14] If it were established that at least an element of any crime within the jurisdiction of the Court, as defined in Article 5 of the Statute, or part of such a crime is committed on the territory of a State Party, the Court might exercise jurisdiction pursuant to Article 12(2)(a) of the Statute.

Specifically, the judges explained that when the threshold and evidentiary requirements are met the Court might also have jurisdiction over the crime against humanity of persecution pursuant to Article 7(1)(h) of the Statute as well as “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” (Article 7(1)(k) of the Statute).[15]

In this context, the Chamber noted that, following their deportation, members of the Rohingya live in appalling conditions in Bangladesh[16] and that the Myanmar government impedes their return to Myanmar.[17] Under international human rights law, no one may be arbitrarily deprived of the right to enter one’s own country.[18]

Finally, the Chamber rules that should the Prosecutor request authorization to open an investigation pursuant to Article 15 of the Statute or initiate an investigation pursuant to another legal basis, it falls within the OTP prerogatives to apply the preconditions for the exercise of the Court’s jurisdiction pursuant to Article 12(2)(a) of the Statute as stipulated and defined in the present decision.[19]

In the final remarks, the PTC I noted that the Prosecutor appears to situate her Request in the context of a “pre-preliminary examination.” The judges explained, however, that the statutory documents of the Court do not envisage a “pre-preliminary examination stage.” In the Chamber’s view, rather, the steps taken by the Prosecutor do not precede a preliminary examination, but are part of that examination, “whether formally announced or not.”[20]

One commentator argues that, following the ruling of the PTC I, the Court also has jurisdiction over a particular form of genocide, referred to as “conditions of life” genocide.[21] According to the Elements of Crimes, that form of genocide include, inter alia, has the following elements: (i) The perpetrator inflicted certain conditions of life upon one or more persons; (ii) The conditions of life were calculated to bring about the physical destruction of that group, in whole or in part; (iii) The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

It remains to be seen whether the present decision delivered by the Pre-Trial Chamber I and followed by the opening of investigation by the ICC Prosecutor will be a real step towards achieving justice for the Rohingya, or whether these actions only create an illusion of an outcome which is hard to deliver.[22]

* Professor Plachta specializes in criminal law and international criminal law. He has authored numerous publications on a wide range of problems concerning law enforcement and international cooperation in criminal matters. He currently teaches criminal law and European criminal law at the University of Security in Poznan, Poland.

[1] Marlise Simons, International Criminal Court Opens Door to a Rohingya Inquiry, New York Times, September 6, 2018.

[2] ICC Pre-Trial Chamber I rules that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh, Press release, September 6, 2018, ICC-CPI-20180906-PR1403.

[3] War Crimes Prosecutor Seeks Jurisdiction Over Rohingya Deportations, The New York Times, April 9, 2018.

[4] Michael Plachta, Justice for Rohingya: ICC Prosecutor Requests Ruling on Jurisdiction to Open Investigation, 34 Int’l Enforcement L. Reporter 127-130 (2018).

[5] International Criminal Court, Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, April 9, 2018, ICC-RoC46(3)-01/18-1, at 30-31.

[6] Michael Safi, ICC says it can prosecute Myanmar for alleged Rohingya crimes, The Guardian (UK), September 6, 2018.

[7] International Criminal Court, Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”, September 6, 2018, ICC-RoC46(3)-01/18, para. 30.

[8] Id., para. 32.

[9] Id., para. 44.

[10] Id., para. 48.

[11] Id., para. 49.

[12] Id., para. 64.

[13] Id., para. 73.

[14] Id., para. 74.

[15] Id., para. 76.

[16] The horrific conditions in the refugee camps in Bangladesh have been described in the UNICEF report available at https://reliefweb.int/report/bangladesh/bangladesh-humanitarian-situation-report-no21-rohingya-influx-4-february-2018.

[17] Decision, supra note 7, para. 77.

[18] See. e.g., Article 12(4) of the International Covenant on Civil and Political Rights, 16 December 1966, UNTS vol. 999, p. 171.

[19] Decision, supra note 7, para. 79.

[20] Id., para. 82.

[21] Kevin Jon Heller, The ICC Has Jurisdiction over One Form of Genocide in the Rohingya Situation, http://opiniojuris.org.

[22] Michael Plachta, Does the Rohingya Tragedy Amount to International Crime?, 34 Int’l Enforcement L. Reporter 30-33 (2018).