IELR Blog

Trump Caves to Mounting Pressure and Imposes Second Round of Sanctions on Moscow

August 9, 2019 by Alexandra Haris Leave a Comment

On August 1, 2019, the U.S. State and Treasury Departments announced Trump signed an executive order to impose additional sanctions on Russia. This is Trump’s second round of sanctions in response to increased congressional pressure to inflict greater punishment on Russia after they conducted a nerve agent attack in 2018 against a former Russian spy who Putin labeled a “traitor” and “scumbag.”

The sanctions target Russia’s economy and, according to analysts, have escalated tensions to be on par with the Cold War era. The executive order gives the Trump administration power to sanction countries that violate global chemical and biological weapons treaties, including the ability to prohibit U.S. financial institutions, like the World Bank, from lending to them. The official sanctions are as follows: “US opposition to loans or other assistance to Russia from international financial institutions (IFIs), such as the World Bank or the International Monetary Fund (IMF); a prohibition on U.S. banks (1) participating in the primary market for non-ruble denominated bonds issued by the Russian sovereign after August 26, 2019, and (2) lending non-ruble denominated funds to the Russian sovereign after August 26, 2019; and additional licensing restrictions on the export to Russia of US goods and technology on the Commerce Department-controlled list.”

The sanctions are drawn from the Chemical and Biological Weapons (CBW) Act. However, the State Department used waiver authorities to weaken the sanctions from those outlined in the Act – especially the banning of US bank loans to Russia, which will not apply to ruble transactions or to loans to state-owned enterprises.

The Trump administration imposed a first round of sanctions on Russia last year, after it concurred with the U.K.’s conclusion that Moscow was involved in exposing former Russian double agent, Sergei Skripal, and his daughter, Yulia, to a military-grade nerve agent, Novichok, in southwestern Britain. Additionally, the U.S. expelled 60 Russians from Moscow’s embassy. The administration stated that “more draconian” sanctions would be imposed in 90 days unless Russia gives “reliable assurances” that it will no longer use chemical weapons and allow inspections by the United Nations (UN). However, after 90 days there were no assurances and no signs of more sanctions. As a result, congressional pressure on Trump to impose additional sanctions continued to build until now, seven months later, when the administration decided to carry out its promise.

In response, Russian officials claimed they complied with the sanction’s campaign and that the U.S. political system is to blame. According to Russian Deputy Foreign Minister Sergei Ryabkov, “Sadly, the remnants of what was called the Russian-American partnership are now being sacrificed because of the demands of those who simply use relations with Russia as an instrument of domestic political struggle in the United States.” The lawmaker continued by shrugging off the potential consequences of the sanctions, claiming that the country is self-sufficient and this is not a significant threat to the economy. That being said, shortly after the Trump administration announced the sanctions, the Russian ruble plunged against the dollar and the country’s benchmark RTS stock index dipped 3 percent.

While the sanctions have potential to damage Russia’s economy, some economists say they will not have much of an impact since Russia has foreign currency and gold reserves exceeding $500 billion, preventing the need to borrow. In fact, the country’s dependence on U.S. loans is already waning. After sanctions were imposed following the Crimea annexation, Moscow’s U.S. bank loans fell from $45 billion in 2013 to $10 billion this year. On the other hand, the State Department claims that the sanctions will “restrict Russia’s access to the multilateral development bank system and…could curtail Russia’s access to billions of dollars of bilateral commercial activity within the United States.”

Prior to the executive order announcement, Trump faced criticism from lawmakers for delaying “legally mandated action” to follow up on the first round of sanctions. In November 2018, the administration was required to determine if Russia had given the assurances they were no longer using chemical weapons, or else the country would face more sanctions. While Russia never gave these assurances, a second round of sanctions were never imposed. To defend the delay, the Trump administration said the State Department was “consulting with Congress”. Congressional pressure increased last week when the House Foreign Affairs Committee’s top Democrat and Republican sent a letter to the president threatening congressional, “corrective”, action. To Congress’ relief, the second round of sanctions came this month, a day after Trump participated in a phone call with Vladimir Putin to discuss the wildfires currently ravaging through Russia.

As tensions between the U.S. and Russia continue to rise, the future relationship between the two powers remains unclear. While Trump invited Putin to a second summit in Washington last month, the governments are continuously at odds; choosing to be more confrontational than cooperative on seemingly every recent matter. Predictions about the U.S.-Russia relationship moving forward are pure speculation and will depend on domestic developments and international trends. Tensions could dissipate if one nation decides to take a backseat, or tensions could remain in the permanent state if neither country backs down from confrontation or competition.

Stay tuned on the IELR blog as more developments unravel.

Mexico Responds to Attack on Nationals in the U.S.

August 9, 2019 by Linda Friedman Ramirez Leave a Comment

By Linda Friedman Ramirez

One day after the August 3, 2019 mass shooting in El Paso, Texas, Mexico’s Foreign Minister Marcelo Ebrard released a statement angrily condemning the attack.^[1] At least eight Mexican nationals were killed by a single gunman, apparently motivated by animus toward immigrants.^[2]

Ebrard said that Mexico would ask U.S. officials to share information on how the gun used in the shooting was obtained and will consider legal action against whoever turns out to be responsible for the sale of the assault weapon used in the crime.^[3] The Foreign Minister advised that the Mexican government would also consider charging the suspect, identified as a 21-year-old Texan, with committing terrorist acts against Mexicans in the United States. ^[4]

“As far as I know, this would be the first case of this type in history,” Ebrard said. “The Mexican government could even seek to extradite the suspect. For Mexico, this individual is a terrorist.”^[5] Ebrard also suggested that Mexico will convene a conference of all Spanish speaking countries with communities in the United States, to advocate for the rights of Hispanics in the U.S.^[6]

On Monday, August 5, Mexican President Andrés Manuel López Obrador took a less confrontational position, but urged the U.S. to enact gun control in the wake of Saturday’s shooting that has now killed 22 people and injured dozens more. “We are very respectful of what other governments decide, but we think that these unfortunate events in the U.S. should prompt reflection, analysis, and the decision to control the indiscriminate sale of guns.”^[7] However, as recently as April 26, 2019, President Trump pledged at the National Rifle Association’s (NRA) Annual Convention to “unsign” the newly negotiated United Nations Arms Trade Treaty, which entered into force in 2014. The treaty is designed to limit international sales of conventional arms to prevent weapons from getting into the hands of human rights abusers. While the US has signed, the Senate never ratified the treaty due to pressure from the NRA.^[8] Trump announced that he was instructing Congress to stop the ratification process, and “return the treaty back to me in the Oval Office where I will dispose of it.”^[9]

Lopez Obrador is likely also aware that the United States has not yet ratified the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (CIFTA). The Convention requires parties to criminalize the illegal manufacture, import, or export of high-powered weapons. It also provides for information exchange and cooperation on initiatives including the marking and tracing of weapons and the identification of criminal transit routes. President Bill Clinton signed CIFTA in 1997 and submitted it for ratification to the Senate, but the Senate has not yet ratified the treaty.

Lopez Obrador’s relationship with the U.S. President during the past year has been a surprise to some, in view of his very clear critique of Trump’s rhetoric about Mexicans while Lopez Obrador was a presidential candidate. In April 2019, Mexican journalist León Krauze questioned why President Lopez Obrador was not standing up to Trump.^[10] He recalled that, “Two years ago, as he was gearing up for a historic campaign that would earn him the Mexican presidency in a landslide, Andrés Manuel López Obrador held gatherings with Mexican communities in the United States in what turned out to be both a listening tour and an opportunity to articulate a denunciation of Donald Trump’s immigration policy.”^[11]

Krauze referred to a statement by then candidate Lopez Obredor: “These sly yet irresponsible neo fascists want to build walls and make the United States an enormous ghetto. They liken our fellow Mexicans and immigrants in general to the Jews who were stigmatized and persecuted in Hitler’s time.”^[12]

Lopez Obrador’s simple request that the United States take unspecified action about gun control in the United States, seems to pale in comparison to his fiery speeches. As it is unlikely that an extradition of the alleged shooter will ever come to pass, what could be more significant is the extent to which the optics of Mexican nationals being attacked in the United States with a lopsidedly weak response by Lopez Obrador could result in new political instability in Mexico.

[Read more…]

Indictment of Couple for Illegal Wildlife Trafficking Illustrates Significance of International Cooperation

August 7, 2019 by Alexandra Haris Leave a Comment

On July 24, 2019, a federal grand jury unsealed an indictment for a Florida couple charged with conspiracy and trafficking of protected wildlife. The couple, Novita Indah and Larry Malugin, specifically received charges of smuggling wildlife from Indonesia to the United States and selling the wildlife from their home in Port Richey, Florida.

In 2011, the couple began selling protected wildlife on eBay to international buyers from their Indonesian home. They would falsely label packages to conceal their shipments’. For the next six years, Indah and Malgin continued this practice throughout their moves to Puerto Rico and, ultimately, to Florida in 2013. On January 12, 2017, the couple’s illicit business came to a halt when the U.S. Fish and Wildlife Service (USFWS) executed a search warrant and recovered 369 wildlife articles from their home. Among the seized articles were Javan spitting cobras, reticulated pythons, and a babirusa skill (a rare Indonesian pig known for its tusks).

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) protects the recovered wildlife. In a press release addressing the indictment, Assistant Attorney General Jeffery Bossert Clark said, “the Department of Justice will seek to prosecute individuals who flout this treaty and other important environmental laws.” As a result, Indah and Malugin face a maximum sentence of 20 years of incarceration on charges of smuggling and 5 years for violating the Lacey Act – which prohibits the trade of illegally procured wildlife.

CITES and the Lacey Act have been extremely useful when it comes to capturing and penalizing illegal wildlife traffickers. The two policies work together and illustrate how much more impactful legislation can be when countries concur on the need to protect endangered species and actually implement effectively the enforcement provisions.

First, CITES, an international treaty boasting 183 member states, signed in 1973 and protects over 35,000 species. Its overarching goal is to ensure that international trade does not threaten the survival of wildlife. It functions through a system of classification, which categorizes species in Appendices I to III. Appendix I prohibits all trade for the species listed as highly endangered. Appendix II permits trade, but only for those in exporting countries with a permit. These permits are issued only when there is scientific evidence that trade will not adversely affect the species. Lastly, Appendix III covers species that only need a certificate of origin to be traded. Elephants, for example, are protected under Appendix I and II due to geographically differentiated threats. Countries can allow permit-holders to trade the species, but only if the nation can demonstrate that ivory trade will not result in the species’ decline. If they cannot prove this, the country’s elephants will be listed under Appendix I and will not be allowed for trade.

The Lacey Act, adopted in 1900 as the first federal law protecting wildlife, is U.S. legislation that makes it unlawful to trade fish, wildlife, or plants that are sold in violation of U.S. law or another entity’s law. As a result, the policy covers all wildlife CITES’ protects. Additionally, the Act aims to restore game and birds in areas of the country where they have been depleted. However, while the main goal of CITES is to ensure trade does not impede wildlife survival, the Lacey Act is primarily utilized today to prevent the importation or spread of non-native species. The policy has faced some major violators. Most recently, in 2016, Lumber Liquidators was found guilty of violating the Act and sentenced to more than $13 million in fines – the largest penalty in the history of the legislation. For more of a discussion on this topic, please refer to the most recent issue of the IELR.

Although containing some distinct differences, CITES and the Lacey Act are united in their mission to abate illegal wildlife trade. Not only do their purposes align, but their unity also encompasses working together to strengthen enforcement of these trading issues. As portrayed in the indictment of Indah and Malugin, the couple will face a maximum sentence of 20 years for smuggling wildlife protected under CITES. However, they could receive an additional five years for violating the Lacey Act as they traded these animals within the U.S. The coupling of the two policies creates a larger disincentive and a stronger enforcement of illegal wildlife trading.

In the future, this will be important for the U.S. to keep in mind. Because demand for protected wildlife products spans the globe, suppliers will sell to whichever markets they can access. In addition, enforcement of international suppliers recognize coordination between international organizations, such as INTERPOL, and national law enforcement. Unfortunately, CITES itself does not have enforcement mechanisms of its own.

As the indictment of Indah and Malugin proves, international teamwork and cooperation is vital to strengthen enforcement and action on key global issues. Hopefully this is a lesson that current administrations can take note of and implement in the future. No matter if they do or do not, the IELR will be there to cover it.

Gregory Craig Wins Dismissal of One FARA Charge, But Must Go to Trial on the Other

August 6, 2019 by Bruce Zagaris 1 Comment

On August 6, 2019, United States District Judge Amy Berman of the District of Columbia dismissed one of two felony counts against Gregory Craig. In her 57-page memorandum opinion, she found that an October 11, 2013 letter Craig sent to the Foreign Agents Registration Act (FARA) Unit was not part of any formal FARA filing. Hence, the prosecution could not charge him for making false submissions.

Judge Jackson rejected Craig’s defense that pursuant to jurisprudence in United States v. Safavian, 528 F.3d 957 (D.C. Cir. 2008) that he was not under a legal duty to disclose and therefore there was no concealment offense in violation of 18 U.S.C. § 1001(a)(1).

Instead the opinion explained that FARA creates the duty and puts individuals on notice of their specific disclosure obligations. Agents are required to register, disclosing their activities and who paid for them. Hence, the allegations the indictment alleging that Craig carried out a scheme to conceal his potential status as a foreign agent, by making a series of false or misleading statements and omissions allegedly obscuring the true timing and full nature of his public relations activities on behalf of Ukraine, states an offense under 18 U.S.C. § 1001(a)(a). It fulfills Circuit precedent and the Constitution’s due process clause.

The opinion observes that, after the FARA Unit informed Craig of its decision that he and his firm had to register, he embarked on an active effort to persuade the agency to change its position.

At present, Craig will face a jury trial next week on the false-statement charge that remains.

Craig is charged with helping prepare and plan media strategy on a 1986-page report commissioned by Ukraine’s Ministry of Justice through U.S. political consultant Paul Manafort and predominantly paid for through a Cyprus bank account by Ukrainian steel magnate, Viktor Pinchuk.

Craig, who was White House counsel in the Obama Administration, has denied the charges.

The dismissal of one charge illustrates why many experts have called for amending and clarifying FARA.

The current issue of the IELR will cover this case in more detail.

IRS Targets Former OVDP Applicants, Expatriates, and HNWIs

August 1, 2019 by Bruce Zagaris Leave a Comment

On July 19, 2019, the IRS Large Business and International Division (LB&I) announced the approval of additional compliance campaigns, including ones on taxpayers who participated in the Offshore Voluntary Disclosure Program (OVDP) and United States taxpayers who expatriated.

With respect to Post-OVDP Compliance, John Cardone, director of Withholding & International Individual Compliance, is in charge. The campaign observes that U.S. persons are subject to tax on worldwide income. This campaign addresses tax noncompliance related to former OVDP taxpayers’ failure to remain compliant with their foreign income and asset reporting requirements. The Internal Revenue Service (IRS) has a list of all the participants in the OVDP. The IRS will address tax noncompliance through soft letters and examinations.

A second area are persons who have expatriated or surrendered their U.S. citizenship or residency. Cardone is also in charge of this campaign. The announcement notes that U.S. citizens and long-term residents (lawful permanent residents in eight out of the last 15 taxable years) who expatriated on or after June 17, 2008, may not have met their filing requirements or tax obligations. The IRS will address noncompliance through a variety of treatment streams, including outreach, soft letters, and examination.[1]

The IRS intends to find taxpayers who used the OVDP, but have since fallen out of compliance. The agency will use its audit-based tools in order to bring them back into compliance. Since the IRS has the communication points for the taxpayers who participated in the OVDP, the IRS should not have difficulty communicating with them.

Since the taxpayers had to admit wrongdoing in order to participate in the OVDP and pledged to be compliant in the future, any audits done by the IRS would have potentially significant risks for taxpayers who are found to not be in compliance again. The IRS may conclude that the post-OVDP non-compliance arises from some sort of willful intent to evade taxes or report obligations.

Another risk is that, while the penalties of the prior OVDPs kept increasing, now taxpayers not in compliance no longer have potential to resort to the lower penalties of the OVDPs.

Another category targeted is High Income Non-filers. Cardone is also in charge of this project. The project description notes U.S. citizens and resident aliens are subject to tax on worldwide income. Taxpayers must file and pay worldwide tax on income, whether or not they receive a Form W-2 Wage and Tax Statement, a Form 1099 (Information Return), or its foreign equivalents. Through an examination treatment stream, this campaign will focus on bringing those taxpayers who have not filed tax returns into compliance.[2]

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

U.S. Court of Appeals Affirms Contempt Order Against 3 Chinese Banks for Subpoena Noncompliance

July 31, 2019 by Bruce Zagaris Leave a Comment

By Bruce Zagaris

On July 30, 2019, the United States Court of Appeals for the D.C. Circuit unanimously affirmed a contempt order against three Chinese banks that failed to comply with subpoenas from the U.S. Department of Justice (DOJ).

On April 30, 2019, the U.S. District Court for the D.C. Circuit unsealed an opinion issued on March 18, 2019, by Chief Judge Beryl A. Howell enforcing grand jury subpoenas and an administrative subpoena against three Chinese banks for records of transactions for a now-defunct Hong Kong-based front company for North Korea’s state-operated company.

While the banks involved are not named in court papers, they were previously reported to be the Bank of Communications, China Merchants Bank and Shanghai Pudong Development Bank (SPD).

In a unanimous ruling, which is under seal, the circuit panel rejected the banks’ arguments that Chinese banking privacy rules and other laws require that requests for customer records in U.S. criminal inquiries be made through a legal assistance agreement between the two countries.

The case grew out of an investigation by the U.S. Department of Justice into Mingzheng International trading Limited, a Hong-Kong entity that allegedly moved $105 million to FTB, a sanctioned North Korean bank, between 2012 and 2015.

In 2017, a U.S. civil forfeiture action contended that Mingzheng used accounts at the three Chinese banks to transmit the money in violation of sanctions on North Korea. In 2017, the U.S. Treasury sanctioned Mingzheng.

Chinese bank regulatory officials have informed the banks that the only way the banks could comply under Chinese law was through the process established under the bilateral China-U.S. June 19, 2000 Mutual Legal Assistance Agreement (MLAA). The banks have informed the U.S. courts that the Chinese government has ordered them not to provide the requested records. The DOJ visited China in April and August 2018 to discuss China’s repeated failure to respond to MLAA requests, which required the U.S. to proceed through unilateral subpoenas. The DOJ informed the district court that China is unresponsive or much delayed in responding to MLAA requests.

Judge Howell has fined the three Chinese banks $50,000 a day, although the fines were stayed pending the appeal. In addition, SPD, China’s ninth-largest bank by assets risks losing access to U.S. dollars.

The case constitutes the first known instance in which a U.S. court has upheld subpoenas to a Chinese bank in a sanctions investigation. The affirmance by the appellate court will increase the tension between the U.S. and China over sanctions. Already, the U.S. and China are in a contest over the extradition of Meng Wanzhou from Canada, the CFO and Vice President of Huawei, for allegedly making false statements in connection with Huawei’s transactions and business with Iranian entities in violation of U.S. sanctions. Criminal and civil cases are pending in the U.S. against Huawei for, inter alia, stealing intellectual property of U.S. firms. The U.S. is pressuring countries around the world not to use Huawei for developing 5G technology.

Meanwhile, as North Korea has taken diplomatic initiatives to break out of its isolation and UN and U.S. sanctions, the U.S. – through enforcement actions against Mingzheng – has tried to maintain the pressure against North Korea. The next issue of the IELR will report further on this case.

Even as the Courts Continue to Strike Down His Migration Policies, the President Presses On

July 30, 2019 by Alex Psilakis Leave a Comment

Over the past few weeks, the Trump administration has taken a number of steps to slow the rate at which asylum seekers may receive admittance into the U.S.

On July 24, 2019, a federal court dealt yet another blow to the Trump administration’s asylum policy. Ruling from San Francisco, U.S. District Judge Jon S. Tigar struck down the Trump administration’s most recent effort to stem the flow of migrants attempting to apply for asylum. On July 16, the Trump administration issued a new rule, declaring that migrants must apply for – and be denied – asylum in all the countries that they pass through on their way to the U.S. if they want to be considered for asylum there. A migrant hoping to make their way to the U.S. from El Salvador or Honduras, for example, would have to apply for and be denied asylum in both Guatemala and Mexico if they simply wanted to apply in the U.S. While the Trump administration believed that such a policy would crack down on those seeking to “[exploit] American generosity,” Judge Tigar disagreed. He ultimately issued a preliminary injunction against the Trump administration, blocking the policy as well as ordering that the government reinstitute the previously-existing system.

This decision contradicted one made that same day, but in a different court. U.S. District Judge Timothy J. Kelly, ruling on a similar case in Washington, DC, argued that the Trump administration’s policy would not cause “irreparable harm” to the two advocacy groups who opposed the new rule. However, the ruling by Judge Tigar supersedes Kelly’s, as the rule does not have the possibility of being carried out until the proper judicial authorities may better understand the legal issues surrounding the case. If the Trump administration appeals the decision – which it is likely to – then the Ninth Circuit Court will review the case.

The Trump administration announced this policy without garnering the explicit consent of Guatemala and Mexico. However, it has since made some progress. On July 26, the U.S. and Guatemala signed a new migration agreement, in which Guatemala confirmed its status as a so-called “safe third country.” Yet Guatemala did not do so eagerly. Threatening to impose tariffs, the Trump administration mandated that Guatemala either implement a new migration accord on the U.S.’ terms or risk economic backlash. Even though the President achieved this deal, it is an ironic victory of sorts, as Guatemala actually has the highest number of asylum seekers and migrants captured at the U.S. southern border.

This step by the Trump administration to tighten U.S. migration policy is not the only one it has made in recent weeks. On July 22, the Trump administration announced that it will dramatically expand its fast-track deportation policy. Under the fast-track system, immigration officers may deport anyone that has illegally resided in the U.S. for less than two years, without allowing said individual to appear before a judge. Though implemented in 1996, the policy garnered little attention until 2004, when the Department of Homeland Security (DHS) stated that it would enforce the policy against those that were arrested within two weeks of arriving in the U.S. by land and detained within 100 miles of the border. With its broader scope, however, the Trump administration has expanded the policy’s reach. Acting DHS secretary Kevin McAleenan stressed that the administration is implementing this policy with the chief goal of reducing the immense case backlog, which is weighing down courts and overwhelming accommodations in southern border detention facilities.

The ACLU pledged to sue the administration and block the policy. “Under this unlawful plan, immigrants who have lived here for years would be deported with less due process than people get in traffic court,” stated Omar Jawdat, director of the ACLU’s Immigrants’ Rights Project. Critics of the policy also stressed that it may be difficult for those that have resided in the U.S. for more than two years to prove so, potentially leading to the deportation of individuals not targeted under the act. Only a limited set of exceptions may protect individuals from being deported under the policy, such as displaying fear at returning home.

In addition to both of these policies, the Trump administration announced that they would narrow the scope of individuals whom they would qualify as asylum seekers. Federal law allows migrants to apply for asylum if they meet at least one of a handful of preconditions, which include a fear of persecution in their home country because of their race, nationality, or political opinions. The law extends to cover members of “particular social groups,” which has included members of families specifically targeted by extremely dangerous groups, like drug cartels. Attorney General William P. Barr, speaking on behalf of the Trump administration noted that the U.S. now viewed members of families through a far narrower lens. Instead of simply possessing “genetic ties” to a family typically targeted by dangerous groups, the family in question should possess “socially distinct” traits. These families would likely include, according to Barr, “large and prominent clans” that have previously undergone persecution in certain countries.

Migrant advocacy groups are likely to challenge this policy in court. The Catholic Legal Immigration Network, for example, has already lamented the law as “shameful.”

Though these policies – or, more specifically, their interpretation – may be new, they reveal nothing new about the Trump administration’s migration policy. Earlier this year, President Trump issued a number of rules meant to tighten U.S. migration policy. These included charging a fee for those seeking to apply for asylum, as well as a fee for those pursuing employment authorizations while waiting for the processing of their asylum application. Continuing this approach with his most recent rules, the President has shown little hesitation in shrinking migration numbers at deep costs, even though almost every step is met with legal backlash. Additionally, the Trump administration’s willingness to pressure states like Guatemala into accepting a migration accord that better meets their interests emphasizes the short-term scope of the White House’s strategy. Even though the administration may achieve this deal and benefit from it in the short-term, it will invariably damage the U.S.’ relationship with Guatemala – and Central America – in the long-term. Not only will these states experience instability from the influx of asylum seekers, but they will resent being bullied into accepting an agreement they never wanted as well.

With approximately 14 months until Election Day 2020, President Trump will almost certainly continue to come down hard on migration, viewing it as a key issue with his political base. Yet the price of this political move has proven, and will continue to prove, steep, with U.S. migrant policy constant under question, and the fates of tens of thousands – if not hundreds of thousands – of asylum seekers perpetually up in the air.

U.S. Sanctioning of a Chinese Trading Company Raise Issues Regarding U.S. Use and Misuse of International Law in Dealing with Iran and China

July 29, 2019 by Evan Schleicher Leave a Comment

On July 22^nd, the Trump administration imposed economic sanctions on the Chinese trading company Zhuhai Zhenrong Co. and its chief executive, Li Youmin, over continuing violations of U.S. sanctions on Iranian oil exports. This decision by the Trump administration highlights a litany of ongoing international legal issues between the U.S., China, and Iran and indicates that the U.S. has no intention of allowing international law to dictate its actions. Instead, the U.S. seeks to use international legal mechanisms as convenient tools by which to pursue an aggressive and standoffish set of foreign policy decisions.

To begin, it is clear the Trump Administration will not allow international law to dictate its sanctions regimes against Iran. In early October 2018, the International Court of Justice (ICJ) reprimanded the United States for the re-imposition of sanctions on Iran, specifically ruling that the U.S. should lift restrictive measures regarding humanitarian aid, medicine, and civil aviation. This move came after Iran complained to the ICJ in July 2018 that the re-imposition of sanctions violated the Treaty of Amity, a 1955 pre-revolution treaty of friendship.

In response to this decision, Secretary of State Mike Pompeo “urg[ed] that the ICJ’s ruling in favour of Iran be ignored, arguing the ‘court failed to recognise its lack of jurisdiction’ and that Iran had ‘attempted to interfere with the sovereign rights of the United States’”. The U.S., far from supporting this ICJ decision, appear in recent days to be actively working against it. President Trump, on July 24, warned that civil aviation companies providing resources and support to Iranian aviation companies, including Mahan Air, would be subject to further sanctioning.

Despite the other parties to the 2015 nuclear deal uniformly rejecting U.S. unilateral sanctions and meeting as recently as July 28 with Iranian officials to try to salvage the nuclear deal, the U.S. continues to expand its sanctions regime. Given there is little global support for U.S. sanctions, China has decried the new sanctions against Zhuhai Zhenrong Co. as illegitimate. Hua Chunying, the Foreign Ministry Spokesperson for the PRC, said on July 23 that “China has stressed many times that the normal energy cooperation between Iran and the international community, including China, under the framework of international law is legal and reasonable, thus should be respected and protected.”

Continuing escalation of sanctions has also given Iran a legal and political window to ignore the only true cap on Iranian nuclear actions, the Joint Comprehensive Plan of Action (JCPOA). Iran is now claiming that it has the authority to respond to the U.S. walkout, meaning that its continuing accumulation of enriched uranium does not violate the nuclear deal. This is further concerning because there is no other international legal document which explicitly restricts Iranian uranium enrichment. Although some scholars argue that UN Security Council Resolution of 1929 prohibits Iran from enriching uranium, Daryl Kimball, executive director of the Arms Control Association, says that “there is no [current] international standard prohibiting Iran from enriching uranium”.

The U.S. is clearly using sanctions to pressure Iran and China politically rather than to support international legal concerns, deeply degrading international legal standards. First, Iran only began to breach the limitations of the nuclear deal after the U.S. abandoned it and re-imposed sanctions, suggesting that the goal of the sanctions themselves is not to limit Iranian nuclear production. Iranian leadership certainly seems to believe this, with the Iranian Ambassador to the United Nations asking: “How can we start a dialogue with somebody whose primary occupation is to put more sanctions on Iran?” Second, the Chinese will almost certainly use the perceived illegitimacy of U.S. sanctions to distract from their own underhanded and questionably legal actions in Iran. Prior to the 2015 nuclear deal, Zhuhai Zhenrong, along with several other Chinese companies, bought Iranian oil at a rate of around 500,000 barrels per day at a time when the U.S. sanctions regime was broadly seen as a legitimate enforcement of international principles.

The poor handling of recent sanctions will almost certainly turn international legal opinion against the United States, despite strong evidence that no side in this dispute is without significant faults.

Evan Schleicher is the Editorial Intern for the International Enforcement Law Reporter. He is currently an MA candidate in Security Policy Studies at George Washington University, focusing on transnational security and humanitarian issues.

UN Resolution Takes Steps to Hold Duterte Accountable for Extrajudicial Killings Connected with Antidrug Campaign

July 29, 2019 by Alexandra Haris Leave a Comment

Earlier this month, the United Nations’ 47-member Human Rights Council voted to examine the alleged extrajudicial killings connected with President Rodrigo Duterte’s antidrug campaign.

On July 12, 2019, Iceland proposed a resolution backed by 18 countries, which 14 opposed and 15 others abstained. The purpose was not to incite a commission of inquiry, but to call upon UN human rights chief, Michelle Bachelet, to prepare a report by July 2020 to ensure tougher follow-up action if the abuses continue. Some of these alleged abuses include killings, enforced disappearances, arbitrary arrests, and persecution of activists, journalists, and lawyers. The goal is to hold the Philippines accountable for their actions and send a message that they have not gone unnoticed. The Philippines reacted by denouncing the initiative as something “straight from the mouth of the queen in Alice in Wonderland,” and lobbied against it, citing an abuse of procedures and a poor use of resources.

This is not the first time the UN has weighed in on the violence occurring in the Philippines. One month ago, on June 7, 2019, UN human rights experts called for the organization to open an investigation into the country’s human rights violations. For support, the experts referred to the rapid increase in these violations toward people and institutions in the nation. Furthermore, since the inception of the antidrug campaign three years ago, 11 special rapporteurs brought this topic to the UN more than one dozen times.

A plethora of sources alluding to the violence taking place in the Philippines warrants the UN experts’ concerns and actions. One of the most recent alleged atrocities, and arguably the catalyst for Iceland’s resolution, was the death of 3-year-old Myca Ulpina in late June. Ulpina died during a police raid targeting her father who used her as a “human shield”. This is one of 6,600 deaths acknowledged by the Philippine government since the war against drugs began. However, the UN estimates this number to be approximately five times higher. A noticeable characteristic of these deaths is that they occur mostly in impoverished areas. This trend has led to devastation within poor communities as sole breadwinners continue to die, leaving their families with immense financial burdens they cannot pay off.

According to Amnesty International, a reason for the excess in human rights violations is that the campaign is liberal in its accusations. All it takes to be murdered or arrested is an unproven allegation that someone uses, buys, or sells drugs. Outside of the country, the government consistently practices intimidation to quell concerns. Even Duterte has publically bullied human rights defenders, UN experts, and Supreme Court justices. One of his most extreme cases took place when he threatened to bomb the schools of the Lumad indigenous peoples on Mindanao Island.

These tactics are no surprise to the international community, as the Duterte administration has continuously clashed with other states since rising to power. Most recently, the government exercised its disdain of international critique by withdrawing from the International Criminal Court (ICC). The ICC is the world’s only permanent war crimes tribunal and has pledged to continue to investigate the Philippines alleged killings. Although Duterte claimed the court “can never acquire jurisdiction over my person, not in a million years”, the case can and will still be examined through March 2020.

These trends – increased violence in the Philippines, as well as Duterte’s decision to leave the ICC – reveal the administration’s disregard for the rule of law and draw an eerie parallel to the current dynamics of the U.S. executive branch. From Duterte’s crude and controversial comments to his threats and bribes, he is continuously displaying apathy for the standards of law and government.

Meanwhile, President Trump consistently lauds Duterte on his actions, making it difficult not to draw a connection between the two. Trump may not be as extreme as Duterte on disregarding the law, but he has shown tendencies to lash out when he is questioned or critiqued (i.e. ousting multiple cabinet members, aggressively ranting on Twitter, ridiculing opposing politicians, etc.). Fortunately, it is unlikely the U.S. could be in a situation like the Philippines as the country is centered on relatively strong and established democratic institutions. However, it is important to look at the aforementioned leaders as examples of what can happen when an administration places their own needs and ego above their nation.

Court Sentences El Chapo to Life as Prosecutors Seek to Strip Him of His Wealth

July 24, 2019 by Alex Psilakis Leave a Comment

Months after the guilty verdict against him, there have been a number of developments in the case of Joaquin “El Chapo” Guzman.

On July 17, 2019, Judge Brian Cogan sentenced El Chapo to life in prison on 10 counts of crimes, including narcotics trafficking and money laundering, as well as crimes related to murder. Though the life sentence was mandatory, prosecutors pushed for the federal judge to add 30 years to his sentence. There is no possibility of parole. U.S. law enforcement authorities did not pursue the death penalty for El Chapo because, as part of the extradition terms agreed to with Mexico, they pledged not to.

This sentencing comes in light of complaints made by El Chapo’s attorneys on the trial itself. Soon after El Chapo’s conviction, his defense team argued that multiple members of the jury violated the judge’s orders by reading outside, non-court-related sources on the trial while they were serving. “Up to five jurors broke the law,” said Jeffrey Lichtman, El Chapo’s defense attorney, “violated the law while they were judging Mr. Guzman for crimes.” While El Chapo’s defense has called for a fresh trial to investigate these allegations of juror misconduct, Judge Cogan has displayed little interest in moving forward on such an issue.

Lichtman went further with his frustrations, stating, “This case was simply an inquisition. It was a show trial, and how it ended is exactly perfect for that description.” El Chapo, he says, plans to appeal the ruling.

However, prosecutors did not end their case there. Alongside El Chapo’s sentence, they seek to strip him of his entire fortune. Reviewing profits that El Chapo obtained through the narcotics trade from the early 1990s to 2016, prosecutors estimated that his fortune ran above $12 billion. Specifically, El Chapo allegedly handled almost 600,000 kilos of cocaine, 200 kilos of heroine, and 420,000 kilos of marijuana. Cocaine brought in the largest profit by far, with authorities estimating that El Chapo earned $11 billion from his trade in the drug alone. Prosecutors, however, realized that it would be all but impossible to understand the total sum of narcotics that El Chapo traded in. As a result, they view these numbers as a “conservative” estimate.

Throughout his escapades, El Chapo proved a highly effective money launderer. He hid portions of his money in the banking system, as well as in an insurance company run by an associate, and in debit cards issued by a Columbian firm called Monodeaux. As a result, he spent lavishly, owning multiple yachts, as well as a private zoo packed with tigers and panthers. Yet even as they have identified how El Chapo laundered his assets, they have not confirmed that they know specifically where those assets are. Though trial testimony revealed that as much as $30 million may be stored in any number of Mexican houses and apartments, little more is publically known beyond that.

All of this appears visible progress in the global effort against the international narcotics trade. And it is. But only to a degree.

Since El Chapo’s arrest and extradition to the U.S., a power vacuum has emerged in Mexico, leaving immense violence in its wake. In their war against the cartels, the U.S. has pursued the so-called Kingpin Strategy, where authorities prioritize taking down cartel leaders to weaken the overall capacity of said cartel, limiting the traffic of drugs, and ultimately, the violence that cartels spawn. Yet the current level of violence crippling Mexico has climbed higher than when El Chapo remained in power. One cartel, the Jalisco New Generation Cartel, for example, has sought to fill the former hegemonic role of the Sinaloa Cartel, fighting other cartels in the hope of controlling trade routes through Mexico into the U.S. Though authorities are less surprised that violence has resurged in former hotspots like Acapulco and Tijuana, its rise in the typically-quiet state of Colima has proven less predictable. As frustrated and cynical as authorities have become, they know that they must continue to pursue key figures like El Chapo, as refusing to do so would convey their impunity.

Whatever comes next in the case of El Chapo, the IELR will be there to monitor it.