IELR Blog

Michigan Man of Lebanese-descent Wrongfully Placed on the No-Fly List

April 9, 2021 by Marwah Adhoob Leave a Comment

In April 2021, the American Civil Liberties Union (ACLU) and the ACLU of D.C. filed a lawsuit on behalf of a Michigan man that the Federal Bureau of Investigations (FBI) placed on a no-fly list because he refused to become an informant.

According to the lawsuit, in August 2018, the FBI started to target Ahmad Chebli, a U.S. born citizen who grew up and has an educational background in Lebanon and now lives in Dearborn, Michigan. The compliant states that the FBI coerced him to work as an informant because of his “language skills, Lebanese background, and technical expertise as an engineer.”Chebli would help the FBI locate suspects in his community that are attempting to harm the United States. The agents focused their questioning on his educational background and life in Lebanon, political and religious beliefs. Chebli did not want any involvement with the FBI, but they were persistent.

The FBI allegedly engaged in coercive tactics such as intense surveillance and accused him of being part of the terrorist group Hezbollah, which he denies any involvement. The FBI proceeded to place him on the no-fly list. By placing Chebli on the list, he loses his ability to travel domestically and internationally, and is denied government benefits.

Chebli challenged the no-fly list claim, and the government did not give a reason for his placement on the list.

The no-fly list is often criticized for its vague standards and often used in a discriminatory manner to target Muslims and those from Arab and Middle Eastern descents.

Chebli’s case is one of many lawsuits that challenge the legality of the no-fly list. In 2014, the ACLU filed a lawsuit that challenged the protocol for placement on the no-fly list. The federal court in Oregon ruled that the no-fly list regulations violate the Fifth Amendment rights and right to due process.

In contrast, a federal appeals court in Richmond, Va., concurred with the government’s use of the Terrorist Screen Database, a less restrictive version of the no-fly list. This database contains 1.2 million people, 4,600 of which are U.S. citizens.

In December, the U.S. Supreme Court heard a case on a matter related to the no-fly list. The case involved three Muslim-American men placed on the no-fly list as retaliation for refusing to become informants. The judges unanimously ruled in favor of the three men.

The suits over the no-fly list exemplify how the U.S. government and courts balance national security restrictions against fundamental rights set forth in its Constitution and international human rights laws. The great bulk of persons on the no-fly list are aliens, to which the U.S. courts have excepted from the protection of most of the Bill of Rights. However, Chebli and other persons targeted have been U.S. citizens and green card holders.

The next issue of the IELR will have a more comprehensive discussion of these matters.

President Biden Revokes Executive Order Imposing Sanctions on the International Criminal Court

April 5, 2021 by Bruce Zagaris Leave a Comment

On April 1, 2021, United States President Joseph R. Biden terminated the national emergency declared in Executive Order 13928 of June 11, 2020, which blocked property of certain persons associated with the International Criminal Court (ICC).

Biden Executive Order

The new Executive Order explained that the U.S. continues to object to the ICC’s assertions of jurisdiction over personnel of such non-States Parties as the U.S. and its allies without their consent or referral by the United Nations Security Council. President Biden said the U.S. “will vigorously protect current and former United States personnel from any attempts to exercise such jurisdiction, the threat and imposition of financial sanctions against the Court, its personnel, and those who assist it are not an effective or appropriate strategy for addressing the United States’ concerns with the ICC.”

Statement by U.S. Secretary of State Antony J. Blinken

On April 2, 2021, U.S. Secretary of State Antony J. Blinken in a press statement explained that, as a result of the new Executive Order, the U.S. has removed the sanctions imposed by the prior administration against ICC Prosecutor Fatou Bensouda and Phakiso Mochochoko, the Head of Jurisdiction, Complementarity and Cooperation Division of the Office of the Prosecutor.

According to Blinken, the U.S. continues to disagree strongly with the ICC’s actions concerning the Afghanistan and Palestinian situations. Blinken also reiterated the U.S. government’s objection to the ICC’s efforts to assert jurisdiction over personnel of non-States Parties such as the U.S. and Israel. Blinken continued that the U.S. concerns about these cases would be better addressed through engagement with all stakeholders in the ICC process rather than through the imposition of sanctions.

According to Blinken, U.S. support for the rule of law, accesses to justice, and accountability for mass atrocities are significant U.S. national security interests that are protected and furthered by engaging with the rest of the world to meet the challenges. The U.S. government leadership was important in forming the Nuremberg and Tokyo Tribunals after World War II and bringing accountability in the Balkans, Cambodia, Rwanda and elsewhere. The U.S. government leadership has supported various international, regional, and domestic tribunals, and international investigative mechanisms for Iraq, Syria, and Burma, to bring justice for victims of atrocities.

Blinken mentioned the U.S. is encouraged that States parties to the Rome Statute are considering a large range of reforms to assist the ICC prioritize its resources and to achieve its core mission of serving as a court of last resort in punishing and deterring atrocity crimes.

Litigation against Trump’s Executive Order Authorizing Sanctions on Officials of the ICC

The Biden Executive Order precedes by days a deadline on April 5 for the Biden administration to respond to a lawsuit by civil society (Open Society Justice Initiative) and law professors challenging the constitutionality of the executive order. In October, the OSJI and four law professors brought a lawsuit against the U.S. government in U.S. District S.D.N.Y., claiming that the executive violated their rights of free speech and association. Some of the professors worked in various capacities for the ICC prosecutor and victims of alleged atrocities.

Already, the Biden administration decided not to appeal a preliminary injunction the court issued in the litigation barred the implementation of the Executive Order.

The American Civil Liberties union and several U.S. citizens also brought a lawsuit challenging the Trump Executive Order. The Biden administration would have had to respond on April 9.

Analysis

The new Executive Order by President Biden and its timing illustrate the utility of the lawsuits.

The new E.O. and the Blinken statement also show an effort by the Biden administration to re-engage in acting against international atrocities and international human rights more generally.

The current issue of the IELR will have more discussion on these developments.

U.S. Tax Court Rules Against Constitutional Challenge to Passport Denial for Delinquent Taxpayers

April 2, 2021 by Bruce Zagaris Leave a Comment

On March 30, 2021, the United States Tax Court granted summary judgment to the Internal Revenue Service with respect to a taxpayer debtor/physician’s constitutional challenge to the IRS’ certification of the delinquent tax debt under IRC, § 7345. The taxpayer’s outstanding tax balance was close to $500,000 and so the IRS turned to a new tool in its collection toolbox – § 7345.1. Under this section, the IRS certified that Robert Rowen, the taxpayer, had a seriously delinquent tax debt to the Treasury secretary, who then transmitted the certification to the State Department. The IRS notified Rowen of the certification. At the time of the suit and the Tax Court’s opinion, the State Department had not taken any action concerning Rowen’s passport. Nevertheless, Rowen petitioned the Tax Court, challenging the IRS’s certification as unconstitutional and a violation of the Universal Declaration of Human Rights (UDHR).

Opinion

The court held that the certification does not deny his right to travel or his rights under the UDHR.

Judge Emin Toro authored the court’s opinion and observed that this is the first time the court has considered the merits of certification under 26 U.S. § 7345. Judge Toro observed that §7345 was enacted as part of the Fixing America’s Surface Transportation Act (FAST Act). The opinion explains that the IRS certifies the delinquent tax debt and sends it to the Treasury secretary, who must then transmit the certification to the State Department. The State Department can revoke, deny, or limit a tax delinquent individual’s passport.

The opinion rejected Rowen’s argument that § 7345 violates his due process rights under the Fifth Amendment since it forbids international travel. Rowen claimed such travel is a fundamental right. The opinion ruled that claim was meritless since the plain text of the statute does not prohibit international travel. The opinion observed that § 7345 only certifies that an individual has a serious tax delinquency. Thereafter, the State Department makes any passport-related decisions. The opinion also rejected Rowen’s claim that §7345 violates his right to travel under the UDHR, since the statute does not impose a limit on the right to travel.

According to the opinion, Rowen’s procedural due process and statute of limitations claims do not have merit because he did not make such arguments in his summary judgment motion. In addition, Rowen to not introduce evidence establishing that the period of limitations has elapsed. The opinion found that the IRS’s certification was not erroneous and that the IRS met the requirements for certification under § 7345. Hence, the IRS was entitled to summary judgment.

Judge Paige Marvel wrote a concurring opinion, stating that the court’s opinion does not foreclose a constitutional challenge in a future case with appropriate facts and squarely presented arguments to the entire tax collection mechanism created by FAST.

Analysis

Clearly the taxpayer’s petition and request for summary judgment were flawed in their efforts to challenge one of the new mechanisms to collect taxes.

The current issue of the IELR will discuss the implications of the case in more detail.

FinCEN Starts Beneficial Ownership Regulation Comment Period and Announces Staff Changes

April 2, 2021 by Bruce Zagaris Leave a Comment

On April 1, 2021, the Financial Crimes Enforcement Network (FinCEN) issued an Advance Notice of Proposed Rulemaking (ANPRM) to request public comment on a wide range of questions related to the implementation of the beneficial ownership information reporting provisions of the Corporate Transparency Act (CTA).

Advance Notice of Proposed Rulemaking

This ANPRM is the first in a series of regulatory actions that FinCEN will undertake to implement the CTA, which is included within the Anti-Money Laundering Act of 2020 (AML Act). The AML Act is part of the FY 2021 National Defense Authorization Act, which became law on January 1, 2021.

The CTA amended the Bank Secrecy Act. The CTA requires corporations, limited liability companies, and similar entities to report certain information about their beneficial owners (the individual natural persons who ultimately own or control the companies). This new reporting requirement will enhance the national security of the United States by making it more difficult for malign actors to exploit opaque legal structures to launder money, finance terrorism, proliferate weapons of mass destruction, traffic humans and drugs, and commit serious tax fraud and other crimes that harm the American people.

Pursuant to the CTA, FinCEN must maintain the reported beneficial ownership information in a confidential, secure, and non-public database. In addition, the CTA authorizes FinCEN to disclose beneficial ownership information subject to appropriate protocols and for specific purposes to several categories of recipients, such as federal law enforcement. Under the CTA, FinCEN must revise existing financial institution customer due diligence regulations concerning beneficial ownership to take into account the new direct reporting of beneficial ownership information.

FinCEN encourages all interested parties, particularly those that would be affected by the beneficial ownership information reporting provisions or would seek access to reported beneficial ownership information, to submit written comments. The comments can come from interested persons outside the U.S. Such written comments will help inform FinCEN’s implementation of all aspects of the beneficial ownership reporting rulemaking.

Comments should be submitted by May 5, 2021.

This ANPRM seeks comment on FinCEN’s implementation of certain provisions in Section 6403 of the CTA. Section 6403 requires reporting companies (corporations, limited liability companies (LLCs), and similar entities, subject to certain statutory exemptions) to submit to FinCEN specified information on their beneficial owners—the individual natural persons who own or control them—as well as specified information about the persons who form or register those reporting companies. Section 6403 further requires FinCEN to maintain this information in a confidential, secure, and non-public database, and it authorizes FinCEN to disclose the information to certain government agencies for certain purposes specified in the CTA, and to financial institutions to assist in meeting their customer due diligence obligations. In both cases, these disclosures are subject to appropriate protocols to protect confidentiality. This ANPRM seeks comment on numerous questions as FinCEN begins to develop proposed regulations implementing these provisions.

While only the regulations implementing the reporting requirements must be promulgated by January 1, 2022, with an effective date to be determined. FinCEN also requests comment on its implementation of the related database maintenance use and disclosure provisions. Section 6403 requires that the final rule on customer due diligence requirements for financial institutions be revised will be the subject of a separate rulemaking, about which the public will receive notice and opportunity to comment.

Staff Changes

Today, FinCEN announced a change in staff. Director Kenneth A. Blanco announced he will depart FinCEN on April 9, after serving as the organization’s director since December 2017. Michael Mosier, former FinCEN Deputy Director and current Counselor to the Deputy Secretary of the Treasury, will return to FinCEN as Acting Director. AnnaLou Tirol, former Associate Director of FinCEN’s Strategic Operations Division, is serving as FinCEN Deputy Director.

Mr. Mosier most recently served as Counselor to the Deputy Secretary of the Treasury, a role he assumed last month after serving as FinCEN’s Deputy Director and first Digital Innovation Officer. Mr. Mosier previously worked at the cryptocurrency analytics, compliance, and investigations firm Chainalysis, where he was Chief Technical Counsel. Prior to FinCEN and Chainalysis, Mr. Mosier was an Associate Director at Treasury’s Office of Foreign Assets Control. Mr. Mosier has also served as a Deputy Chief in the Department of Justice’s (DOJ’s) Money Laundering & Asset Recovery Section. He also served a tour at the White House National Security Council as Director for Transnational Organized Crime. Mr. Mosier began his public service as a prosecutor with the Manhattan District Attorney’s Office, and has served as an Adjunct Professor of Law at Georgetown University Law Center. He previously worked at a law firm representing technology, media, and financial services clients.

Ms. Tirol is now serving as Deputy Director. In this capacity, she assists in overseeing FinCEN’s wide-ranging work to enhance the national security of the United States. Ms. Tirol joined FinCEN in September 2019, serving as Associate Director of the Strategic Operations Division, where she worked extensively to promote FinCEN’s strategic partnerships with government and private industry stakeholders, both domestically and internationally. Ms. Tirol came to FinCEN after overseeing DOJ’s Public Integrity Section prosecuting public corruption matters. She began her public service as an Assistant U.S. Attorney in San Diego, and has served overseas tours for DOJ in Belgrade, Serbia, focusing on anti-corruption issues, and in Panama City, Panama, focusing on anti-money laundering and countering the financing of terrorism. Ms. Tirol is an Adjunct Professor of Law at Georgetown University Law Center.

Director Ken Blanco will depart on April 9th to Citi to lead Financial Crimes Compliance

U.N. to Investigate Sri Lanka War Crimes Resulting from the Civil War

March 30, 2021 by Marwah Adhoob Leave a Comment

On March 23, 2021, the United Nations Council voted to open an inquiry into Sri Lanka’s alleged war crimes resulting from the three decades civil war.

Of the 47-member council, 22 countries voted in favor, 11 opposed, and 14 abstained. Britain and Canada initially brought this resolution into light to address the atrocities and human rights abuse in Sri Lanka following the civil war. The resolution will set up a team of investigators to gather and preserve evidence of war crimes. The U.N. hopes to hold the Tamil Tigers, a Sri Lankan guerrilla group, and security forces accountable for their alleged involvement in war crimes. This resolution was in response to a U.N. report by the U.N. human rights chief, Michelle Bachelet, who urged the international community to seek justice for Sri Lanka and hold criminals accountable.

Background of Sri Lanka’s Civil War

The war can be traced back to British colonialism in the region. The British handed the Tamil minority most of the political power after they left the region. The minority rule caused conflict among the Sinhalese-dominated population. Tension arose between the two groups leading to a civil war. The 30-year civil war started in 1983. It involved a struggle for dominance between the insurgent group called the Liberation Tigers of Tamil Eelam (LTTE) and the Sinhalese-dominated Sri Lankan government. The LTTE wanted a separate state for the Tamil because the Sinhalese-dominated government engaged in systemic discrimination against the Tamil minority.

Violence erupted in intermittent periods between 1956 and 1980s. Throughout the period, state-sponsored mobs carried violent attacks such as massacres that led to thousands of lives lost. The war ended in 2009, with the government defeating the LTTE.

Sri Lanka remains unstable even after the war. The Sri Lankan government announced that it strongly opposes the investigation into war crimes. According to a New York Times reporting, the president of Sri Lanka and his administration furiously advocated against this investigation into war crimes.

U.S. Response

While the Sri Lanka government may be against this resolution, other western nations such as the U.K., Canada, and the U.S. are strong advocates. This resolution was part of the 46^th Session of the U.N. Human Rights Council that the U.S. participated in after nearly two years of absence to address global human rights situations. During the Session, the U.S. also supported resolutions to address human rights conditions in Belarus, Burma, Burundi, Egypt, Eritrea, Iran, Nicaragua, North Korea, Russia, Syria, Venezuela, South Sudan, and Yemen.

Commissions of Inquiry sometimes lead to individual accountability. Because Sri Lanka does not participate in the International Criminal Court, the ICC does not have jurisdiction unless the U.N. Security Council refers the case. This is unlikely. Nevertheless, some countries provide for universal jurisdiction over war crimes and crimes against humanity.

The April issue of the IELR will have a more comprehensive discussion of this matter.

FATF Starts New Project to Study and Mitigate the Unintended Consequences from Incorrect Implementation of Standards and Announces More Jurisdictions on its Black and Grey Lists

March 18, 2021 by Bruce Zagaris Leave a Comment

On March 17, 2021, the Financial Action Task Force announced the start of a new project “to study and mitigate the unintended consequences resulting from the incorrect implementation of the FATF Standards.

Mitigation Project

The project started in February 2021 and will examine the following four areas

“De-risking, or the loss or limitation of access to financial services. This practice has affected non-profit organizations (NPOs), money value transfer service providers, and correspondent banking relationships, in particular;
Financial exclusion, a phenomenon whereby individuals are excluded from the formal financial system and denied access to basic financial services;
Suppression of NPOs or the NPO sector as a wholethrough non-implementation of the FATF’s risk-based approach;
Threats to fundamental human rightsstemming from the misuse of the FATF Standards or AML/CFT assessment processes to enact, justify, or implement laws, which may violate rights such as due process or the right to a fair trial.”

The FATF will conduct the project in two phases:

Phase One: research and engagement. The project will analyze these unintended consequences resulting from the misuse of the FATF’s Standards on preventing and combating money laundering and the financing of terrorism. This work will rely on the knowledge and experiences of members of the FATF’s Global Network of 205 jurisdictions, its observers, and outside stakeholders.

Phase Two: solutions. The second phase will develop options the FATF could consider to prevent and mitigate these unintended consequences.

According the announcement, the FATF welcomes input to inform this project, including scholarly research; industry and civil society perspectives; and documented instances of unintended consequences. Information may be sent to pscf@fatf-gafi.org.

The announcement states the project is an opportunity to study trends and propose solutions. Any information provided to the FATF Secretariat will be shared with the project team and the source will be identified.

New Lists of High-Risk Jurisdictions and Jurisdictions in Need of Increased Monitoring

On February 25, 2021, the FATF announced its list of High-Risk Jurisdictions (also commonly referred to as its “blacklist”) subject to a Call for Action (Iran and North Korea) and jurisdictions in need of increased monitoring (commonly referred to as its “grey list”). The list has the following jurisdictions: Albania, Barbados, Botswana, Burkina Faso, Cambodia, Cayman Islands, Ghana, Jamaica, Mauritius, Morocco, Myanmar, Nicaragua, Pakistan, Panama, Senegal, Syria, Uganda, Yemen, and Zimbabwe.

One of the problems with the list of high-risk jurisdictions is that they’ve been on the list now for many years and they are also on international and national sanctions list. As a result, many banks and financial institutions will not process transactions, even ones that are for genuine humanitarian purposes due to the risk of large penalties.

Another practical problem is that jurisdictions on either list tend to also land on the European Union list of high-risk jurisdictions for money laundering (commonly referred to as its AML/CFT blacklist).

Although the FATF does not mandate the application of enhanced due diligence measures for jurisdictions under increased monitoring, it encourages member jurisdictions to take the listing into account when undertake their risk analysis. The measures to be applied will vary, but may result in: (a) a requirement to perform more comprehensive due diligence on the customer’s source of funds and source of wealth and/ or (b) increased internal controls on business acceptance and ongoing monitoring.

Practically speaking, regulators around the world take into account the listing as do the electronic databases used by financial institutions and intermediaries when they are on-boarding and reviewing clients for customer due diligence. As a result, banks and financial institutions from the metropole tend to limit or terminate correspondent bank relationships (de-risking) and withdraw from having branches or subsidiaries in the jurisdictions, especially because the listed jurisdictions tend to be small jurisdictions. The result is that persons and businesses in these jurisdictions increase higher costs to bank, especially internationally. Ultimately, the listings lead to financial exclusion of the small jurisdictions and their inhabitants, even though many already experience a high degree of lack of access to formal financial markets.

The current issue of the IELR will have a more comprehensive discussion of the issues raised in this post.

The U.K. to Return Ex-Nigerian Governor’s Stolen Funds to Nigeria

March 15, 2021 by Marwah Adhoob Leave a Comment

The U.K. will return $5.8 million that an ex-Nigerian Governor allegedly stole; this comes as part of the deal between the two countries.

Ex-governor of the Delta state James Ibori, along with his associates, allegedly laundered 160 million in Euros and used the stolen money to purchase property in the U.K. and Nigeria, luxurious cars, and a jet plane. Ibori has a lengthy criminal history dating back to the early 90s. He started off stealing money from a cash register to using public funds for his personal benefit.

The law caught up to Ibori in 2012 when he was convicted by a U.K. court for money laundering, conspiracy to defraud, and forgery and sentenced to 13 years in prison. And in 2016, he was released and deported to Nigeria.

In 2016, the Nigerian and U.K. governments signed a Memorandum of Understanding (MoU), which details both countries’ commitment to anti-corruption efforts by returning “the seized proceeds of bribery or corruption in a responsible and transparent way.” And nearly four years later, on March 9, 2021, and for the first time, the two countries agreed to return the Ibori’s stolen funds and allocate them to develop public infrastructure in Nigeria.

A detailed budget plan was set to ensure all of the recovered assets would be used for the public’s benefit. According to the press release by the U.K. government, projects include “boosting support to substantial building work for the Lagos to Ibadan Expressway, the Abuja to Kano road and the second Niger Bridge.”

The Nigerian government vowed to use money with transparency and for the public’s benefit. The U.K. also stated that annual accountability reports would be made public. These reports will contain the budget plan and detailed account of how the money will be used.

The money was retrieved by the U.K.’s various law enforcement agencies, including the Metropolitan Police Service, National Crime Agency (NCA), Crown Prosecution Service (CPS), and supported by the Foreign Commonwealth and Development Office (FCDO) and Home Office.

This action set a precedent for future agreements under the MoU. Adrian Foster, the Chief Crown Prosecutor, said in a press release statement: “Corruption anywhere is corrosive and has a drastic impact on the lives of the people where money is embezzled from. Where there is international corruption carried out from England and Wales, we will robustly prosecute and deprive individuals of their ill-gotten gains.”

The return of part of the looted funds is a positive step towards asset recovery.

FinCen Issued Notice Alarming Financial Institution of Illicit Art and Antiquities Trade

March 12, 2021 by Marwah Adhoob Leave a Comment

On March 9, 2021, the Financial Crimes Enforcement Network or FinCEN issued a notice to financial institutions informing them of (i) the new measures to the Anti-Money Laundering Act of 2020 (the AML Act) regarding the antiquities and art trade, (ii) potential criminal activity associated with art and antiquities trade (iii) and updates to the SAR filing.

New AMLA-2020 Measures

The AMLA-2020 passed on January 1, 2021 as part of the National Defense Authorization Act. The AMLA is the first major update to the money laundering laws since the U.S. Patriot Act. The AMLA reforms the money laundering laws under the Bank Secrecy Act or BSA passed in 1970. The BSA acts as a guide on detecting and combating money laundering and on finance-related terrorism.

The recently issued notice amends the definition of financial institutions in the AMLA, under Section 6110(a), to include art and antiquities traders, thereby holding them to the same reporting standards as financial institutions under the BSA.

Generally, financial institutions file a suspicious activity report or SAR. The notice provided specific instructions for art and antiquities traders. Filers must detail how the suspicious activity ties to antiquities and art. The notice recommends filers to include: specific details on how the objects ties to the financial institution, contact information as well as any IP addresses and other identifying information on the purchasers, sellers, and any intermediaries or agents, as well as the cost of the object.

Filing SARs “in conjunction with effective implementation of their other BSA compliance requirements, is crucial to identifying and stopping money laundering and other crimes related to trader in antiquities and art,” the notice reminded.

Illicit activity in the antiquities and arts trade

Much like the drug or arms trade, art and antiquities, too, can be a source of money laundering. This type of illicit trade can is linked to international terrorism, persecution of cultural groups, and criminal networks. Crimes associated with art and antiquities vary and “may include looting or theft, the illicit excavation of archaeological items, smuggling, and the sale of stolen or counterfeit objects.”

According to a 2018 report, the antiquities trade is popular among organized crime groups and terrorist organizations. It is a multibillion-dollar industry; particularly popular in the black market and comes third to drug and arms trade.

Unlike other illicit trades, art and antiquities are sold in legally structured institutions (e.g. museums or private collectors) through the use of middlemen or dealers. Criminals still use deceptive money laundering practices to successfully obtain the payments.

A factor that contributes to antiquities laundering is unidentified and unaccounted for antiquities. Unaccounted for items can easily slip into the hands of dealers as the items in question are not consider “stolen property,” thus, the country in question cannot claim the items as “stolen.” And some criminals illegally excavate and traffic the items making it harder for origin countries to account for their antiquities.

While the illegal antiquities and arts trade has gone unregulated, the AMLA measures are a step in the right direction in combating this illicit market. A major challenge for persons dealing in art and antiquities is that, unlike banks, they have not previously been subject to anti-money laundering and financial regulations. Hence, they will have to undergo education and training on the AML requirements and develop and implement AML due diligence internal controls.

German Court Sentences Syrian Officer for War Crimes

March 11, 2021 by Teddy David Leave a Comment

On February 24, 2021, a German court convicted former Syrian secret police officer Eyad al-Gharib of aiding and abetting crimes against humanity during the Syrian Civil War. The landmark decision is the first example of a national court – as opposed to the International Criminal Court – convicting a relatively high-ranking officer for war crimes committed during the now decade-long conflict in Syria.

The Principle of Universal Jurisdiction

The typical mechanism for seeking justice for such crimes is through the International Criminal Court. However, as this court is an organ of the United Nations, the UN Security Council can block efforts to bring charges against accused war criminals in that venue. In the case of the Syrian Civil War, Russia and China have consistently blocked such pushes.

This obstructionism has led frustrated international human rights groups to push for European courts to bring charges against alleged war criminals unilaterally, made possible by the doctrine of universal jurisdiction. Under this principle, any nation’s courts may prosecute offenses like crimes against humanity, genocide, and torture, even if they were committed far outside that nation’s borders. These crimes are so severe that the accused are considered hostis humani generis – enemies of all humankind.

Although most countries, including the United States, acknowledge some forms of universal jurisdiction, the principle is applied especially expansively in many European legal systems, leading human rights campaigners to focus their attention on that continent. The large numbers of refugees flowing out of Syria and into Europe has also contributed to the intensity of the calls for European courts to pursue justice.

The Crimes of Eyad al-Gharib

Eyad al-Gharib arrived in Germany in 2018 and was arrested along with a higher-ranking secret police officer, Anwar Raslan, in February 2019. Al-Gharib subsequently admitted his involvement in the arrest of 30 protesters in 2011, in the opening stages of the Syrian conflict. The dissidents were then transported to a detention facility known as Branch 251 and were beaten en route. Al-Gharib also testified to knowing that the protesters would likely be tortured at the facility.

Raslan – whose trial will continue into the fall – was a senior officer at Branch 251, overseeing the torture of at least 4,000 detainees. In both the al-Gharib and Raslan cases, German prosecutors have argued that these individual actions constitute crimes against humanity as they were elements in the Syrian government’s systemic patterns of illegal detention and torture.

Among the key pieces of evidence in the prosecution’s case were forensic analyses of thousands of photos of corpses secreted out of Syria by a defecting police photographer, Syrian government documents, and the testimony of Syrian refugees in Germany who had been held at Branch 251.

No evidence linked al-Gharib directly to the crimes, but the judge allowed the defendant’s testimony to investigators to be admitted as evidence, despite his defense team’s objection, claiming that, at the time, he believed he was being questioned as a witness rather than a suspect. Al-Gharib was ultimately sentenced to four and a half years in prison, one year less than prosecutors had sought,nevertheless a defeat for the defense, who had argued for a full acquittal.

Future Implications

After the verdict was announced, Syrian human rights activist Anwar al-Bunni warned the Assad regime that “the time of impunity is over, and you will not find a safe place to go.” However, the optimism was not universal. Hassan Kansou of the Syria Justice and Accountability Center struck a gloomier note: “It is symbolic that they sentence one officer, and there could be others, but it won’t change anything inside Syria.”

Kansou is likely right, as the Assad government – which has regained control over most of the country – will not implicate itself in war crimes by prosecuting its own offenses. There is also no sign that Assad’s backers in Moscow and Beijing will start supporting prosecutions in the International Criminal Court. However, al-Bunni is correct to the extent that this verdict is a dark sign for accused Syrian war criminals within the reach of European national courts.

*Teddy Davis is a contributing author for the IELR blog. He is currently a senior at Vassar College.

Biden Administration revokes license of an Israeli billionaire

March 11, 2021 by Marwah Adhoob Leave a Comment

Biden administration revokes license

On March 8, the U.S. State Department along with the Treasury Department revoked Dan Gertler’s license. Gertler is an Israeli mining businessman that is allegedly involved in public corruption in the Democratic Republic of Congo. The license revocation is a move to reverse a decision made in the final days of former-President Trump.

This decision came amid pushback from human rights activists in the U.S. and DRC and congressional lawmakers. The Biden Administration revoked his license to reaffirm its stance on anti-corruption efforts. In a press statement by the State Department, they noted that granting Gertler a license is “inconsistent with America’s strong foreign policy interests in combatting corruption around the world, specifically including U.S. efforts to counter corruption and promote stability in the Democratic Republic of the Congo.”

Gertler’s corrupt mining deals

According to the Treasury Department, Gertler made his fortune through obscure and corrupt mining deals. He had ties to former Congolese president, Joseph Kabila, which enabled him to organize these mining oil deals. Through his dealings with Kabila, Gertler was made the middleman for mining sales in Congo thereby requiring companies to go through Gertler to do business. This deal resulted in a loss of $1.36 billion in revenue from mineral sales in the DRC. For more than two decades, Gertler exported diamonds, gold, oil, cobalt, and other minerals.

The U.S. sanctioned Gertler in late 2017 under the Global Magnitsky Human Rights Accountability Act, a law that allows the U.S. to punish business executives or government officials that violate international human rights.

Trump’s administration secretly revokes license

In 2019, he hired lobbyists with ties to Trump, including Alan Dershowitz that made it easier for him to retrieve his license. On January 15, 2021, five days from the end of the Trump Presidency, the Department of Treasury granted him a one-year license that would unfreeze money in U.S. banks and authorized him to conduct business through the international banking system. The license revocation strips Gertler of those conditions.

According to New York Times reporting, the then-Treasury Secretary Steven Mnuchin directed officials in the Office of Foreign Asset Control to issue his license, even though some top State Department officials were unaware of this decision would have likely opposed it.

According to a New York Times article, the Treasury Department issued the license in exchange for his assistance in a U.S. national security interest, however, the nature of his aid to the U.S. was not disclosed.