The Gupta Brothers’ Corruption Scandal Invokes the Ratification of a New Mutual Legal Assistance and Extradition Treaty Between South Africa and the United Arab Emirates
by Jamie Jang[1]
In 2018, the economic and political stability of South Africa was upended when the Gupta brothers – Ajay, Atul, and Rajesh Gupta – and government officials were caught conspiring together.[2] The Gupta brothers, Indian-born South African businessmen, owned a tectonic empire across South Africa and wielded a great degree of political power.[3] After a government official testified against the Guptas, it was revealed that they had been involved in a longstanding scheme with members of the South African government, including President Jacob Zuma, to siphon millions of dollars from state-owned firms and the national treasury.[4] President Zuma was forced to resign and the Gupta brothers fled to Dubai, leaving their enterprises in South Africa bankrupt.[5] This scandal “offers a case study in a new, systematic form of graft known as ‘state capture.’ [. . .] It demonstrates how an entire country can fall to foreign influences without a single shot being fired”.[6]
The Gupta brothers have yet to face the charges brought against them for fraud and money laundering as they remain hidden in the United Arab Emirates.[7] For over three years, South Africa has requested full cooperation from the United Arab Emirates to extradite the Gupta brothers so they may be prosecuted in the country where they committed their crimes.[8]
UAE and S. Africa Ratify a New MLAT and Extradition Treaty
In response to the scandal, a new mutual legal assistance and extradition agreement between South Africa and the United Arab Emirates was ratified by both countries.[9] A statement issued by United Arab Emirates ambassador to South Africa, Mahash Alhameli reads, “These agreements have been and remain key to the UAE in promoting judicial and legal cooperation with South Africa and strengthening bilateral relations between law enforcement institutions and partners on both sides”.[10] While the treaty agreement was intended to mend the relationship between both countries, it appears that South Africa remains unsatisfied with the United Arab Emirates’ efforts.[11] National Director of Public Prosecutions (NDPP) Shamila Batohi states, “As I expressed to the ambassador yesterday, we will only accept that there is full cooperation when we receive the necessary information that we have been requesting now for over three years without success”.[12]
S. Africa Expresses Frustration over Inability to Obtain Custody of the Guptas and Request Interpol Red Notice
The NDPP is not the only one expressing frustration over the inability to obtain cooperation from the United Arab Emirates.[13] Civil society organizations, namely the Ahmed Kathrada Foundation and the Defend Our Democracy movement protested outside the United Arab Emirates embassy.[14] A statement from the Ahmed Kathrada Foundation reads, “The Guptas must be brought from the UAE, where they currently reside, to SA to account for the litany of allegations of state capture and corruption that they face”.[15]
The National Prosecuting Authority’s (NPA) Investigating Directorate (ID) head, Hermione Cronje has asked Interpol to circulate an international red notice to have the Gupta brothers deported back to South Africa.[16] The ID intends to try the Guptas for the R25 million spent on a feasibility study to determine the viability of the failed Estina dairy farm in South Africa.[17] The ID asserts that “the department paid Nulane the R25 million for the feasibility study. However, after receiving the money, Nulane appointed and paid Deloitte Consulting R1.5 million to conduct the study. The rest of the money was allegedly laundered through a series of accounts, ending in Gateway Limited, a Gupta-owned company in the UAE”.[18] After three years of unsuccessful efforts to extradite the Gupta brothers, help from Interpol for an international arrest warrant appears to be another mechanism for South Africa to try to gain custody of the Guptas. .
The case demonstrates how difficult it can be sometimes for prosecutors to obtain effective international enforcement cooperation.
[1] B.A., Rhodes College.
[2] “State Capture”: How the Gupta Brothers Hijacked South Africa Using Bribes Instead of Bullets. Vanity Fair. March, 2019.
[3] “State Capture”: How the Gupta Brothers Hijacked South Africa Using Bribes Instead of Bullets. Vanity Fair. March, 2019.
[4] “State Capture”: How the Gupta Brothers Hijacked South Africa Using Bribes Instead of Bullets. Vanity Fair. March, 2019.
[5] “State Capture”: How the Gupta Brothers Hijacked South Africa Using Bribes Instead of Bullets. Vanity Fair. March, 2019.
[6] “State Capture”: How the Gupta Brothers Hijacked South Africa Using Bribes Instead of Bullets. Vanity Fair. March, 2019.
[7] Masondo, Sipho. “NPA asks Interpol to help arrest, deport Guptas to SA”. June 3, 2021.
[8] Chabalala, Jeanette. “Gupta extradition: SA has been requesting information from UAE for over three years without success”. June 11, 2021.
[9] Chabalala, Jeanette. “Gupta extradition: UAE confirms signing agreement on mutual legal assistance”. June 9, 2021.
[10] Chabalala, Jeanette. “Gupta extradition: UAE confirms signing agreement on mutual legal assistance”. June 9, 2021.
[11] Chabalala, Jeanette. “Gupta extradition: SA has been requesting information from UAE for over three years without success”. June 11, 2021.
[12] Chabalala, Jeanette. “Gupta extradition: SA has been requesting information from UAE for over three years without success”. June 11, 2021.
[13] Chabalala, Jeanette. “Gupta extradition: SA has been requesting information from UAE for over three years without success”. June 11, 2021.
[14] Chabalala, Jeanette. “Gupta extradition: UAE confirms signing agreement on mutual legal assistance”. June 9, 2021.
[15] Chabalala, Jeanette. “Gupta extradition: UAE confirms signing agreement on mutual legal assistance”. June 9, 2021.
[16] Chabalala, Jeanette. “Gupta extradition: SA has been requesting information from UAE for over three years without success”. June 11, 2021.
[17] Chabalala, Jeanette. “Gupta extradition: UAE confirms signing agreement on mutual legal assistance”. June 9, 2021.
[18] Chabalala, Jeanette. “Gupta extradition: UAE confirms signing agreement on mutual legal assistance”. June 9, 2021.
Evaluating the Jonathan Taylor Extradition Case
By Austin Max Scherer[1]
This past July, Jonathan Taylor, a whistleblower that exposed bribery at his old firm SBM Offshore, was arrested on an Interpol red license.[1] Taylor, a U.K. native, was found on vacation in Croatia.[2] Since the arrest, Interpol dropped the warrant, while Croatia has kept Taylor within the country due to an extradition request by Monaco.[3] The detention has brought a lot of criticism from different organizations like the European Union (EU) and the Resource Center on Media Freedom in Europe.
This blogpost will evaluate the following issues: Whether the extradition is legal? Whether the extradition violates the EU Whistleblower Protection Directive? And whether the requesting state, Monaco, is trying to protect an economically powerful entity in Monaco?
Legality of the Extradition
The first issue deals with whether the extradition is legal. An Interpol Red Notice alert can be issued to arrest someone for extradition if the subject falls within one of two categories: “Either the individual is: (1) awaiting a trial-prosecution for an offense for which he or she has been formally charged or (2) the individual has already been convicted of crime and is wanted in order to serve their lawful sentence.”[4] Taylor does not suffice either of these requirements. A May 19 letter from the Resource Center on Media Freedom in Europe states: “Mr. Taylor is not charged with anything as there are no criminal proceedings, nor is there any execution of a judgment for which he is wanted…”[5] Since neither requirement is fulfilled, the legality of the extradition appears questionable.
Violation of the EU Whistleblower Protection Directive
The second issue evaluates whether the extradition violates the EU Whistleblower Protection Directive. The aims of this directive were to strengthen the legal protection available to whistleblowers and provide protection that would be consistent throughout all EU Member States.[6] Further, it would be expected that member states would incorporate minimum standards featuring, “reporting channels for organizations of a certain size; and the level of protection afforded to persons that report breaches of Union law.”[7] Member states would be expected to comply by December 17, 2021.[8] The Supreme Court of Croatia confirmed Taylor’s status as a whistleblower.[9] This confirmation further qualifies Taylor’s defense under the EU Whistleblower Protection Directive. Croatia is obligated to uphold the directive, which, “includes ensuring they are immune from civil and criminal liability for having blown the whistle.”[10] This extradition would violate the EU Whistleblower Protection Directive. Since the withdrawal of the arrest warrant by Interpol, Monaco appears to act against Taylor in a retaliatory nature. This was confirmed again by Interpol on March 23, 2021.[11]
Is the Requesting State Protecting an Economically Powerful Entity?
The final issue discusses whether the requesting state, Monaco, is trying to protect an economically powerful entity in Monaco? Taylor uncovered one of the most expansive corruption and bribery scandals. This led to criminal investigations in the U.K., U.S., Netherlands, Switzerland, and Brazil.[12] SBM Offshore’s main office is in Monaco, and interestingly, Monaco has yet to initiate a single criminal investigation into a highly credible and well documented allegation of bribery and corruption, “on the part of SBM Offshore.” SMB Offshore earned $2.368 revenue in 2020; this comprises nearly a third of Monaco’s GDP.[13] One could surmise from this quantitative information, that SBM Offshore has influence in Monaco. SBM Offshore is Monaco’s largest private-sector employer and with offices 400 meters away from Monaco’s prosecutor’s office, it has close ties to the state.[14] Taylor stated the following, “It’s very political…they’re trying to discredit me and to show the world that Monaco doesn’t put up with whistleblowers, that companies are ‘safe” there.”[15] This information illustrates exploitation of an individual and a country’s attempt to lure more businesses to its domain. A potential court case in Monaco would serve beneficial to SBM Offshore. This would essentially provide, to use a sports term, a homefield advantage. Furthermore, SBM Offshore has major influence in Monaco politics, which should create fears to not only Taylor but to all human rights organizations.
Analysis
With SBM Offshore paying over $800 million in fines, SBM may want to make an example of Taylor.[16] Croatia seems bound to meet the requirements of the EU Whistleblower Protection Directive and return Taylor to the U.K. Arguably Croatia may take the position that it has until December 21 to comply with the EU Whistleblower Protective Directive and until it implements the Directive, it must follow its current national law. Taylor committed to answering any questions the Monaco government has, and if the Monaco government’s desire to speak to Taylor is purely judicial, then why does it require his extradition to Monaco if there is no criminal charge?[17] In any event Taylor’s counsel is expected to request the Croatian Minister of Justice to use his discretion to not extradite Taylor. In addition, Taylor is likely, if necessary, to appeal to the Croatian Constitutional Court and the European Human Rights Court.
[1] Rising third year law student, Washington College of Law, American University; M.S., Finance, American Univ; B.S., George Washington Univ.
[2] Jo Couzens, Jonathan Taylor: Oil whistleblower’s Monaco extradition bid upheld, bbc.com, https://www.bbc.com/news/uk-england-hampshire-57137065 (last visited May. 24, 2021).
[3] Id.
[4] Id.
[5] Extradition proceedings against Jonathan Taylor needs to end, article19.org, https://www.article19.org/resources/extradition-jonathan-taylor/ (last visited May. 24, 2021).
[6] Ana Myers, Urgent letter to Croatian Minister of Justice: Do not extradite Whistleblower Jonathan Taylor, Resource Center on Media Freedom in Europe, (May. 19, 2021).
[7] See Werner Berg, Sunny Mann, and Julia M. Wilson, Whistleblower Protection Directive, bakermckenzie.com, https://www.bakermckenzie.com/en/insight/publications/2020/02/whistleblower-protection-directive (last visited May. 24, 2021).
[8] Id.
[9 Id.
[10] Myers, supra note 6.
[11] Id.
[12] Id.
[13] Id.
[14] SBM Offshore Full Year 2020 Earnings, sbmoffshore.com, https://www.sbmoffshore.com/?press-release=sbm-offshore-full-year-2020-earnings (last visited May. 24, 2021).
[15] Andrew Rettman, Monaco hunts oil-bribery whistleblower in EU, euobserver.com, https://euobserver.com/justice/149356 (last visited May. 24, 2021).
[16] Id.
[17] Myers, supra note 6.
[18] Rettman, supra note 15.
No Appeal as of Right and the Need for Due Process: the Commission for the Control of INTERPOL’s Files Steps In Again
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
INTERPOL, I-CAN Global Anti-Mafia Organization Take Down Fugitives
By Julia Brock, Scripps College Class of 2022
INTERPOL’s Cooperation Against ‘Ndrangheta (I-CAN) has rounded up six fugitives in Albania, Argentina, and Costa Rica, following intelligence tips gathered in an operation targeting the ‘Ndrangheta in November 2019. The news was reported on INTERPOL’s website on July 23, 2020.
Last year’s “Operation Magma 2007” targeted individuals wanted for association with the ‘Ndrangheta, as well as drug trafficking and illegal weapons possession. It resulted in the arrest of 45 suspects across Italy. It was conducted by Italy’s Guardia di Finanza and Direzione Centrale Servizi Antidroga, and coordinated by the Direzione Distrettuale Antimafia in Reggio Calabria.
Three of the fugitives were arrested in Buenos Aires on 21 July, 2020, while a simultaneous operation in Tirana, Albania led to the capture of a fourth ‘Ndrangheta-linked fugitive. The next day, a fifth fugitive was arrested in Costa Rica. A sixth fugitive who had avoided capture in Operation Magma 2007 was arrested in Albania last May.
Combined, the operations netted 400 kg of cocaine, 30 kg of hashish, 15 kg of marijuana, an automatic assault rifle, three semiautomatic pistols, a silencer and ammunition of various calibers.
The operation also led to the dismantle and arrest of all top family members of the Bellocco family clan, one of many in the ‘Ndranghata. The Bellocco clan was involved in importing South American cocaine by boat into Italy, particularly from Argentina and Costa Rica. For this, the group depended on emissaries who travelled frequently between the Bellocco clan’s Calabrian base and supplier countries.
The ‘Ndrangheta
The ‘Ndrangheta is the most extensive, wealthiest, and powerful criminal organization in the world. “Ndrangheta” itself means loyalty or courage and is of Greek origin. The organization specializes in kidnapping and political corruption, but have also been linked to drug trafficking, bombings, murder, counterfeiting, gambling, frauds, theft, labor racketeering, loansharking, and alien smuggling. The organization has acquired direct or indirect control of companies operating across all areas of society, including construction, transportation, import and export, and more. They also utilize the deepweb and Darknet to conduct illicit commerce transactions.
The ‘Ndrangheta was formed in the 1980s when a group of Sicilians, banished from the island, settled in Calabria and formed small criminal organizations based on family ties, primarily blood relationships and marriages. It has since expanded into an international organization and is present in 32 countries worldwide. Its tight-knit, clan-like structure makes it difficult to penetrate.
INTERPOL and Organized Crime Prevention
INTERPOL’s Organized Crime unit’s goal is to stop organized crime organizations like the ‘Ndrangheta from operating. The unit works hand in hand with all of INTERPOL’s police services to identify major figures involved in transnational crime, the associated criminal networks and their activities.
The unit also conducts criminal analysis based on intelligence provided by our member countries and partners, such as biometrics, images and known associations. These methods allow INTERPOL to have a detailed understanding of the crime organizations they are focusing and proves crucial to finding connections between organizers, financiers, distributors, and corrupt officials.
I-CAN
I-CAN, an Italian and INTERPOL initiative targeting the ‘Ndrangheta, was launched in January 2020. The ultimate goal of the I-CAN project is to enhance the ability of law enforcement worldwide to more effectively identify and combat mafia-type organizations.It is funded by the Italian Department of Public Service and focuses on the ‘Ndrangheta.
I-CAN is developed across three pillars:
- Content – Building on Italy’s direct experience and knowledge of the threat posed by Ndrangheta, its structure and how it operates.
- Access – Making this vital policing information available to the targeted countries, in order to identify patterns, trends and potential targets for law enforcement.
- Action – Coordination of joint investigations with national law enforcement to identify and arrest individuals wanted in connection with Ndrangheta-linked activities.
DOJ Rules Red Notices are Sufficient to Prevent Asylum and Withholding of Removal Claims
On March 6, 2020, the United States Department of Justice (DOJ) Board of Immigration Appeals ruled that, on its own, a Red Notice may be sufficient to prevent an asylum claim or a withholding of removal claim from being heard.
Specifically, the DOJ said that “An Interpol Red Notice may constitute reliable evidence that indicates the serious nonpolitical crime bar for asylum and withholding of removal applies to an alien.”
Background
The DOJ made this ruling in response to an asylum case for a citizen of El Salvador who entered the U.S. in 2012. The Department of Homeland Security (DHS) placed him in removal proceedings and asserted that he was removeable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2018), as an alien who is present in the United States without admission or parole.
According to the DOJ, “He conceded removability and applied for asylum and withholding of removal under sections 208(b)(1)(A) and 241(b)(3)(A) of the Act, 8 U.S.C. §§ 1158(b)(1)(A) and 1231(b)(3)(A) (2018), and for protection under the Convention Against Torture.”
On July 10, 2018, the DHS submitted an Interpol Red Notice, explaining that the Magistrates Court of San Salvador issued a warrant on March 31, 2016 for the respondent’s arrest regarding participation in an “illicit organization.” This alleged act is considered a violation of article 345 of the Salvadoran Penal Code.
The Red Notice indicates that, according to an investigation conducted in 2010, the respondent is a “hit man,” for the MS-13 gang. The Immigration Judge found that there are serious reasons to believe the respondent had committed a serious nonpolitical crime prior to his entry into the United States.
The respondent argued that the Red Notice does not have any probative value because the notice is insufficient to establish probable cause for an arrest in the U.S. under the Fourth Amendment and, as a result, does not have any probative value. However, the DOJ explains that a Red Notice “is the closest instrument to an international arrest warrant in use today.”
The Immigration Judge found the Red Notice to be reliable as a request by El Salvador to provisionally arrest the respondent pending extradition based on a valid national arrest warrant for a crime that is not political in nature. Additionally, the DOJ found that the DHS has met its burden to show that the serious nonpolitical crime bar may apply to the respondent pursuant to 8 C.F.R. §§ 1208.16(d)(2) and 1240.8(d).
The onus was placed on the respondent to prove by a preponderance of the evidence that the serious nonpolitical crime bar does not apply. The respondent then submitted a letter from an attorney in El Salvador that explain the charges stemming from this incident were dismissed in October 2018. However, the Immigration Judge found this letter was not enough to show that the criminal charges had been dismissed. In other words, the judge found that the respondent did not meet his burden to prove by a preponderance of evidence that the serious nonpolitical crime statutory bar does not apply to him.
In addition, the judge noted that the respondent did not submit official court documents regarding these criminal charges. As a result, the judge found that the Red Notice was still active and trustworthy.
In sum, given that an alien is barred from obtaining asylum and withholding of removal when “there are serious reasons for believing that the alien committed a serious nonpolitical crime” before arriving in the U.S., this Red Notice was ruled sufficient to prevent asylum from being granted.
Significance
The decision illustrates the importance of supplying court documents beyond lawyer statements to immigration officials in order to prove that a Red Notice was improperly issued or is invalid.
According to Michelle Estlund, a criminal defense attorney, “The court…held that an applicant has the burden of showing that the Red Notice is not the type of evidence referenced above, once the government has asserted it as such. In order to meet that burden, an applicant would do well to submit a court order substantiating his claim whenever possible. Obviously, it can be quite difficult to obtain court documents in some jurisdictions; when that is the case, the court must be informed of that fact.”
Estlund makes a notable point. In fact, if the respondent had been able to prove by a preponderance of evidence that the serious nonpolitical crime statutory bar does not apply to him, the ruling could have been different.
International Crackdown Leads to the Confiscation of 19,000 Artifacts and 101 Arrests
On May 6, 2020, INTERPOL announced that more than 19,000 artifacts and other artworks (including a Colombian gold mask, a carved Romanian lion, and thousands of ancient coins) had been recovered during two operations. These operations, Athena II and Pandora IV, included INTERPOL, Europol, and the World Customs Organization (WCO) and spanned 103 countries to focus on the dismantlement of international criminal networks of art and antiquities traffickers.
In total, the joint initiatives, which ran in the fall of 2019, lead to 101 arrested suspects and 300 opened investigations. According to INTERPOL’s press release, “The criminal networks handled archaeological goods and artwork looted from war-stricken countries, as well as works stolen from museums and archaeological sites.” The trafficked goods ranged from objects unearthed in excavations, works stolen from museums, and looted paintings. Details of the Athena II and Pandora IV are only being released now due to operational reasons.
Much of the stolen artwork had been looted from Colombia but thousands of other objects were seized by Argentinian, Latvian, and Afghan officials—illustrating just how global and collaborative the operation was.
“Organized crime has many faces,” said Catherine de Bolle, the executive director of Europol, “The trafficking of cultural goods is one of them: it is not a glamorous business run by flamboyant gentlemen forgers, but by international criminal networks. You cannot look at it separately from combating trafficking in drugs and weapons: we know that the same groups are engaged, because it generates big money.”
Indeed, it’s often the case that stolen art can change “owners” and generate a great deal of profit for its illegitimate owners before being recovered by law enforcement. For example, at the height of their power, the Nazis notoriously stole countless art objects from victims of their persecution and auctioned them off afterwards; it’s taken decades for these artworks to be returned to the descendants of their rightful owners.
Similarly, the Ghent Altarpiece, perhaps the most frequently stolen and coveted artwork in world history, has been the target of no less than 13 crimes over the course of its 600-year history. This proves that when artwork is coveted, there is sometimes little that can be done to prevent theft from occurring. However, as evidenced by the success of the recent joint operation between Interpol, Europol and the WCO, sometimes all that’s necessary to achieve justice is a coordinated effort.
Details of the operations
During the operations, law enforcement paid specific attention to the monitoring of online marketplaces and sales sites since the internet is a prominent factor of illicit trade of cultural goods.
In fact, during “cyber patrol week,” the Italian Carabinieri led police and customs experts, Europol, INTERPOL, and WCO in the mapping of active targets in order to develop intelligence packages. This effort resulted in the seizure of 8,670 cultural objects for online sale, representing 28 percent of the total number of artifacts recovered during the international crackdown.
Another highlight occurred when police officers in Spain recovered several rare pre-Colombian objects at Madrid’s Barajas airport. These artifacts included a Tumaco gold mask, gold figurines, and pieces of ancient jewelry. All of the artifacts had been illegally acquired by looting in Colombia.
Nine traffickers were arrested in Spain and Colombian police carried out searches in Bogotá, resulting in the seizure of 242 more pre-Colmbian objects, the largest confiscation in the country’s history.
Additional highlights of the operations were listed in INTERPOL’s press release:
- Afghan Customs seized 971 cultural objects at Kabul airport just as the objects were about to depart for Istanbul, Turkey.
- The investigation of a single case of online sale led to the seizure of 2,500 ancient coins by the Argentinian Federal Police Force (Policia Federal Argentina), the largest seizure for this category of items, while the second largest seizure was made by Latvian State Police (Latvijas Valsts Policija) for a total of 1,375 coins.
- Six European Police forces reported the seizure of 108 metal detectors, demonstrating that looting in Europe is still an ongoing business.
INTERPOL Secretary General Jürgen Stock said, “The number of arrests and objects show the scale and global reach of the illicit trade in cultural artefacts, where every country with a rich heritage is a potential target.” The INTERPOL Chief added, “If you then take the significant amounts of money involved and the secrecy of the transactions, this also presents opportunities for money laundering and fraud as well as financing organized crime networks.”
These operations were the second time that INTERPOL, Europol, and WCO have come together to tackle the illicit trade in cultural heritage. The three organizations also jointly ran a 24-hour Operational Coordination Unit (OCU) that carried out checks against various international and national databases.
INTERPOL Announces Large-Scale Operation to Arrest nearly 250 Fugitives across Asia
On September 23, INTERPOL announced the recent success of its coordinated operation, Operation Tighten the Net, arresting 241 fugitives across Asia between June and August 2019. These fugitives were wanted for serious crimes including human trafficking, terrorism, and murder, and some of the fugitives had been on the run for decades.
The operation involved the 10 countries of the Association of Southeast Asian Nations (ASEAN) and China, Japan, and Korea (ASEAN+3). Operation Tighten the Net targeted fugitives that these countries wanted for years, but only with a coordinated effort were they able to find success. The countries took a multilateral approach to share information about the fugitives’ cases, which serves as an example of the power and success that can arise with international cooperation.
In order to achieve the goals of the operation, the countries identified high-profile fugitives and shared intelligence with participating members. Equipped with new and crucial information, these countries could then target the fugitives to bring them to justice. Of the individuals arrested, 80 were subjects of INTERPOL Red Notices for crimes ranging from fraud, drug trafficking, money laundering, and crimes against children.
One particular case that stands out involves a Korean national who was wanted on fraud charges and had been on the run for 25 years. Through this operation, the national was finally discovered living in Thailand, their home for the last 20 years.
The results encompassed not only hundreds of arrests, but they also included the issuance of 248 Red Notices and 20 Blue Notices. A Blue Notice differs from a Red Notice in that it is used by member countries to collect additional information about an individual’s identity, location or activities in relation to a crime.
INTERPOL’s goal is to continue this cooperative crackdown and arrest more fugitives suspected of these serious crimes. INTERPOL’s Head of the Liaison Office in Thailand, Kitaek Kang, reaffirmed the organization’s intent to continue working with all ASEAN+3 partners to build on the momentum of the operation.
INTERPOL credits some of the operation’s success to a training it held in May for participating member states. The training workshop focused on INTERPOL’s fugitive investigation capabilities and criminal databases, as well as the organization’s support to mutual legal assistance matters. This educated participants on the organization’s resources and illustrated how they could then use these resources to capture the alleged criminals.
INTERPOL also claimed the operation’s success derived from the efforts of the participating National Central Bureaus (NCBs) as well as partner law enforcement organizations.
This operation is distinctive as it marks the first regional fugitive investigative action coordinated by the INTERPOL Liaison Office in Bangkok, Thailand, with support from the INTERPOL NCB in Korea.
As a result, the Commissioner General of the Korean National Police Agency, Min Gab Ryong, commented on the operation with the confirmation of Korea’s commitment to collaborate with INTERPOL against crime while securing the rule of law in the region by “synchronizing efforts with regional partners as a member of ASEAN+3.”
This positive reception was encouraging for INTERPOL since, in the past, the organization has experienced scrutiny over its true effectiveness due to its absence of police power and ability to make arrests. However, this action helps to demonstrate the impact that the organization can have on global policing. In this case, the organization facilitated international cooperation and policing while providing resources in order to complete these 241 arrests. It will be interesting to see if INTERPOL attempts to make similar efforts in other global regions.
U.S. Director of INTERPOL NCB Remarks Help Celebrate USNCB’s 50th Anniversary
On September 17, 2019, Wayne H. Salzgaber, Director of the United States National Central Bureau (USNCB) of INTERPOL gave remarks, highlighting some of its unique achievements.
A unique aspect of the USNCB has been that it co-managed by the Deputy Attorney General and the Deputy Secretary of the U.S. Department of Homeland Security (DHS – formally Treasury). The co-management structure enables to USNCB to marshal the resources necessary to handle whatever international challenge occurs.
Salzgaber pointed as a reason to the USNCB’s success as its partner agencies in the U.S. United States partners detail their subject matter experts to the USNCB, helping the USNCB deliver the support required to all 18,000 U.S. law enforcement agencies across the United States.
An example of the contribution of the USNCB to INTERPOL is the development and operation of INTERPOL’s Maritime Piracy database out of the USNCB before the latter gate it to INTERPOL as a means of bringing in more international partners. Nearly a decade later, that database is still being utilized to combat maritime piracy and prosecute persons involved in maritime piracy. (see https://www.interpol.int/Crimes/Maritime-crime)
USNCB personnel and detailees with expertise in traveler screening and passport data, collaborated with a handful of member country representatives to develop INTERPOL’s Stolen and Lost Travel Document database. The database now has more than 90 million records of stolen or lost travel documents reported by more than 160 countries and is used virtually every second of every day to screen international travelers across the globe.
Since 9/11, USNCB has developed and used multiple Counter Terrorism Information sharing programs with its law enforcement and Department of defense partners. Operations such Vennlig,[1] Hamah, Tread, and Cellblock.
According to Salzgaber, INTERPOL has adopted the USNCB’s model under a program called “MILEX” or Military to Law Enforcement Exchange. Today, a number of U.S.> foreign partners are using MILEX to collect and disseminate foreign terrorist fighter identity data obtained from conflict zones across the globe.
Salzgaber said of the more impactful programs USNCB developed was the integration of the INTERPOL notice system with U.S. national law enforcement indices. The solution enables any border official or law enforcement officer to access INTERPOL’s global advisories on missing or wanted persons, foreign terrorist fighters and other subjects of interest within minutes of their publication right on their agency’s native law enforcement or border systems.
However, on September 12, the Helsinki Commission held a hearing on the abuse of the INTERPOL Red Notice and diffusion systems, whereby many autocratic countries use the system to prevent political exiles from traveling and they try to arrest them. The following day members of the Helsinki Commission introduced a bill to remedy the abuses.
Salzgaber said the success of the USNCBI solution has resulted in the USNCB and now INTERPOL deploying technical assistance teams to help other countries in integrating their immigration and border security systems with INTERPOL’s system, thereby creating truly global security architecture.
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[1] Project Vennlig successfully provides terrorist information among INTERPOL member countries and the U.S. law enforcement community. See INTERPOL USNBC, U.S. Department of Justice, FY 2010 Performance Budget, Congressional Submission, 2. Sept. 18, 2013 https://www.justice.gov › legacy › 2013/09/28 › fy10-usncb-justification.
Bill to Curb INTERPOL Abuse Follows Helsinki Commission Hearing
Helsinki Commission Chairman Rep. Alcee L. Hastings (FL-20) and Ranking Member Rep. Joe Wilson (SC-02) today introduced the Transnational Repression Accountability and Prevention (TRAP) Act in the House of Representatives. Helsinki Commission Co-Chairman Sen. Roger Wicker (MS) and Ranking Member Sen. Ben Cardin (MD) plan to introduce the TRAP Act in the Senate on Monday.
On September 12, 2019, the Commission on Security and Cooperation in Europe (CSCE), also known as the Helsinki Commission, convened a hearing on the Tools of Transnational Repression: How Autocrats Punish Dissent Overseas, focusing on the role of International Criminal Police Organization (INTERPOL).
Background
The Commission issued an explanation for the hearing, state that, as modern technology permits political dissidents and human rights defenders to operate from almost anywhere on the planet, repressive regimes have increasingly tried to intimidate them. .
To silence dissent from abroad, autocrats often turn to INTERPOL to file bogus criminal claims seeking the arrest and extradition of their political targets. This abuse of INTERPOL Red Notices and Diffusions enables autocratic governments to harass and intimidate their opponents thousands of miles away, even within free and democratic societies.
The U.S. Helsinki Commission convened an expert panel to highlight how present-day autocrats use INTERPOL and other means such as surveillance, abduction, and assassination to punish dissent overseas. The witnesses suggested how the United States and other democratic nations can defend against these threats to the rule of law domestically and internationally.
Opening Remarks
Sen. Roger Wicker (R-Ms) chaired the hearing. He is the chair of the Commission and Vice-President of the OSCE Parliamentary Assembly. He said INTERPOL can be manipulated by autocratic governments. He said Red Notices and diffusions are constantly abused. INTERPOL regularly receives requests for human rights defenders and journalists on trumped up charges, such as the Kremlin’s efforts to go after Bill Browder. Russia has issued at least eight diffusions about Browder over a decade. INTERPOL has not punished Russia. In fact, last fall Russia proposed a candidate for Secretary General.
Before the hearing, the Commission received statements about persons targeted by Tajikistan, Uzbekistan, Turkey, and other governments.
Sen. Wicker will introduce legislation on limiting the use in U.S. immigration and law enforcement of INTERPOL notices and requiring the State Department to report on trends and transnational repression in its annual Human Rights report.
According to Sen. Wicker, INTERPOL is in need of greater transparency. The matter has been brought to the attention of the CSCE Parliamentary Assembly at its last meeting. The hearing will bring policy recommendations.
Senator Ben Cardin (D-Md.), a member of the Commission, commended Sen. Wicker’s role and said he looks forward to working with Mr. Wicker on his legislation. Sen. Cardin noted that the Magnitsky statute has been expanded. He lamented that the Magnitsky Act has not been sufficiently used against Saudi Arabia for the murder of the late Saudi journalist Jamal Khashogghi.
Rep. Joe Wilson (R-SC) and Sen. Sheldon Whitehouse (D-RI) also explained they supported the work of the hearing.
Testimony
The following witnesses testified:
Alexander Cooley, Director, Columbia University’s Harriman Institute for the Study of Russia, Eurasia, and Eastern Europe; Claire Tow Professor of Political Science, Barnard College, testified about harassment of political exiles and the denial to them of due process. The rise of technology enables autocratic governments to intimidate political exiles more than ever. Autocrats are networking to try to repurpose international organizations to meet their goals. INTERPOL diffusion notices are mushrooming. Azerbaijan, Venezuela, India, and Tajikistan are among the governments that abuse the diffusions. The diffusion notices make it difficult for targets to travel and use bank accounts and it costs them significant legal fees to extricate themselves from the problems arising out of the diffusion notices. The proposed Transnational Repression Accountability Procedures (TRAP) Act will help combat some of these dangers. Cooley said the TRAP Act would send a powerful signal about the importance of maintaining clear international standards against the politicization of our most important international organizations.
Nate Schenkkan, Director for Special Research, Freedom House, discussed the global campaign by Turkey after the 2016 attempted coup. It uploaded tens of thousands of diffusion notices, kidnapped 104 of its nationals from other countries (at least one was the wrong person although that person is still in jail), and cancelled thousands of passports. The U.S. should support exiled political exiles and journalists, including diaspora in the U.S. Schenkkan also endorsed
Freedom House will publish a new study, documenting the transnational oppression and violence against political exiles.
Bruno Min, Senior Legal and Policy Advisor, Fair Trials (FT), testified that INTERPOL is not subject to oversight and hence the U.S. government’s role is very important. A major issue is how INTERPOL reviews Red Notices. We do not know how many Red Notices and diffusions are rejected and do not know what it would take to have INTERPOL review the requests more carefully. We see many abuses against refugees with high public profiles. INTERPOL only has a staff of about 30-40 persons to review 10,000 Red Notices and 50,000 diffusions each year. Diffusions are not subject to the same scrutiny. Hence, there is the risk that unchecked data will enter into national databases.
There is concern about procedures of the Commission for the Control of INTERPOL files (CCF). INTERPOL has improved it and made it more independent. FT has concerns about interpretation of INTERPOL’s rules with respect to international human rights. INTERPOL has taken steps to protect persons who have been accorded refugee status. However, INTERPOL needs to do more.
INTERPOL needs encouragement to implement the recent reforms and adopt more reforms.
A crucial issue is lack of funding and understaffing of INTERPOL, which makes them depend on member countries to do its work at the risk of compromising its independence.
Sandra A. Grossman, Partner, Grossman Young & Hammond, Immigration Law, LLC, testified how autocratic governments are using the U.S. immigration system to abuse exiles. U.S. Immigration and Customs Enforcement (ICE) uses Red Notice to detain people. ICE treaties many Red Notices as conclusive evidence of criminality. ICE and immigration judges use Red Notices to mistreat people. ICE and immigration judges often become tools of corrupt governments, often detaining asylum applications. Jurisprudence and reports by CCF must be published so that more transparency exists about CCF.
Question and Answer
To Sen. Wicker’s inquiry, Grossman said the U.S. contributed $19.4 million and Japan, China, and Europe followed. The U.S. government is by far the greatest contributor.
At the end of the hearing, Sen. Wicker expressed hope that he and the U.S. Congress can do something about some of the abuses both in the U.S. law enforcement system and INTERPOL itself.
TRAP Act
Following reports that U.S. immigration authorities have cited such politically-motivated INTERPOL Red Notices and diffusions to detain some individuals and consider removing them from the United States, the TRAP Act formally codifies strict limitations on how INTERPOL requests can be used by U.S. authorities.
The TRAP Act further declares that it is the policy of the United States to pursue specific reforms within INTERPOL and use its diplomatic clout internationally to protect the rights of victims and denounce abusers. The bill requires the Departments of Justice, Homeland Security, and State, in consultation with other relevant agencies, to provide Congress with an assessment of autocratic abuse of INTERPOL, what the United States is doing to counteract it, and how to adapt United States policy to this evolving autocratic practice. The State Department would also be required to publicly report on the abuse of INTERPOL in its annual Country Reports on Human Rights to create a transparent, public record of these violations of the rule of law.
Original co-sponsors of the legislation include Helsinki Commission members Sen. Marco Rubio (FL), Sen. Cory Gardner (CO), Sen. Sheldon Whitehouse (RI), Rep. Steve Cohen (TN-09), Rep. Brian Fitzpatrick (PA-01), Rep. Richard Hudson (NC-08), Rep. Gwen Moore (WI-04), and Rep. Marc Veasey (TX-33). Rep. John Curtis (UT-03), Rep. Sheila Jackson Lee (TX-18), and Rep. Tom Malinowski (NJ-07) are also original co-sponsors.
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Guest Speakers
Antenor Madruga and Ana Belotto, both of Feldens Madruga, in Brazil, will join us to discuss “US-Brazilian Joint Criminal Settlements: Trends and Implications for Stakeholders”
The panelists will discuss recent joint settlements between the U.S. , Brazil and other countries, including the Amec Foster Wheeler settlements (June 25 in the US and July 2 in the UK), Rolls-Royce, and others. They will discuss the trends and implications for stakeholders of joint settlements and other developments in international criminal cooperation.
Antenor Madruga has a PhD in international Law, is the founding partner at the FeldensMadruga law firm in Brazil. He is recognized as a leading Brazilian lawyer in complex litigations and negotiations involving government criminal and administrative proceedings, particularly in multijurisdictional cases.
Ana Belotto coordinates the Compliance practice at FeldensMadruga with a special focus on AML and anti-corruption matters. Has participated in the negotiation of complex multijurisdictional leniency agreements involving criminal, civil and administrative matters. She is a member of the New York Bar and is a registered Solicitor at the Law Society of England and Wales
Other Agenda Items
The Committee will also discuss other developments in the field and Committee business, such as the proposed resolution on joint settlements, and its recent webinar on “Abusing Interpol’s Resources to Persecute Expatriate Dissidents” on July 14.