IELR Blog

Manchester Bomber’s Brother Extradited to the UK

July 23, 2019 by Alex Psilakis Leave a Comment

On July 17, 2019, Hashem Abedi was extradited to the UK for his role in the Manchester bombing of May 2017. Previously detained in – and extradited from – Libya, the UK has charged Abedi with the murder of the 22 individuals killed at the Ariana Grande concert. Prosecutors argue that Abedi played a key role in manufacturing the explosives used in the attack, crafting detonator tubes for the weapons, as well as purchasing chemicals essential to creating the bombs. He even helped acquire the car that was used to store materials until the attack took place. In addition to these allegations, the UK has charged Abedi with one count of attempted murder, as well as conspiring to cause explosions.

Abedi acted far from alone in this effort. On May 22, 2017, Salman Abedi, Hashem’s brother, detonated the explosive that killed 22 concertgoers, including teenagers and children. Hashem, in Libya during and after the Manchester attack, was detained by Libyan authorities. Libya’s counterterrorism force alleged that he was an engineering student with connections to the Islamic State (ISIS). Further reports indicated that Libyan authorities had tracked Abedi for approximately one month, and believed that he was planning his own attack on Tripoli, the Libyan capital. Authorities have also detained Abedi’s father, Ramadan Abedi, as well as his brother, Ismail Abedi, though neither man has yet been charged.

Abedi and his family have deep ties to Libya. Originally from the country, Abedi’s family fled Libya during the reign of Moammar Gadhafi to ultimately settle in the UK. After living in London, the family moved to Manchester, where Abedi was born and raised. However, once Gadhafi fell from power in 2011, Abedi’s parents moved back to Libya, where they have remained since. Abedi and his brother Salman, meanwhile, continued to live in the UK. Yet they traveled to Libya in April 2017, just one month before the attack. While Salman soon returned to the UK to carry out the bombing, his brother remained in Libya.

At a court appearance on July 22, the judge, Mr. Justice Sweeney, ordered that Abedi be remanded in custody until his next court appearance. On July 30, Abedi will appear for a preliminary hearing, which will occur either at London’s Old Bailey, or in Oxford. Abedi, meanwhile, has asserted his innocence. “He denies any involvement in any of the alleged offenses,” said Zafar Ali QC, Abedi’s attorney. “He did not oppose extradition. He wanted to come back to clear his name.”

Legal proceedings have moved slowly throughout the entire process. Though Abedi was detained in Libya just days after the Manchester bombing, his extradition did not occur until more than two years after the attack. This was likely due to the political instability that has plagued Libya since the Gadhafi’s fall nearly a decade ago, as well as the violent unrest that has broken out this year. Alongside these delays, British authorities have informed victims’ family members that hearings are not likely to occur until April 2020 at the earliest.

INTERPOL’s Power to Prevent Diffusion Abuse: Legal, Political and Technological Considerations (in response to Dr. Theodore Bromund’s ‘INTERPOL’s Lack of Power to Act Preemptively in Fighting Government Abuse of the Diffusion System’)

July 17, 2019 by Yuriy Nemets Leave a Comment

The Commission for the Control of INTERPOL’s Files is an independent body with the exclusive power to adjudicate complaints from individuals seeking the deletion of information about them from INTERPOL’s files.[2] In its 2017 annual report (its most recent) published this year, the Commission acknowledges that some governments have succeeded in disseminating diffusions against the same individuals whom the Commission has already found to be victims of their INTERPOL abuse, and INTERPOL lacks a comprehensive mechanism to stop the unlawful practice.[3] Even before the Commission published its report, I had been calling upon INTERPOL to monitor and block all incoming red notices and diffusions to ensure that no such request entered its channels if it concerned an individual already found to be a victim of INTERPOL abuse from the same government.[4] I have suggested that the organization should implement reliable software to conduct such monitoring.[5] In his recent publication ‘INTERPOL CCF’s Latest Annual Report Highlights Fundamental Flaw in the System,’ Dr. Theodore Bromund disagrees with my suggestion and argues that INTERPOL cannot simply introduce a new technology to fix the problem.[6] According to Dr. Bromund, stopping the unlawful practice “would require both changing the diffusion system at a technical level and making appropriate changes in INTERPOL’s Rules on the Processing of Data,” which “in turn would require a good deal of time and a vote in favor of the changes in INTERPOL’s one-nation, one-vote General Assembly — where it is far from clear that the nations wanting reform would be in the majority.”[7]

In my article ‘INTERPOL’s Power to Act Preemptively in Fighting Government Abuse,’ I respond to Dr. Bromund’s argument by citing and quoting multiple INTERPOL rules that already unequivocally grant the organization the power, and indeed require it, to monitor all incoming diffusions and block the non-compliant ones before they enter its channels.[8] I, therefore, strongly disagree with Dr. Bromund’s argument that changes in INTERPOL’s rules are needed for the organization to exercise that power. In response, Dr. Bromund has written another article ‘INTERPOL’s Lack of Power to Act Preemptively in Fighting Government Abuse of the Diffusion System.’[9] It is my understanding from this latter publication that Dr. Bromund agrees with my argument that under its rules, INTERPOL already has the power to monitor and block diffusions before they enter its channels, but at the same time argues that the organization cannot exercise that power, which he refers to as the “legal power,” because of “technical and political” barriers.[10] In this regard, Dr. Bromund writes that while he accepts my legal analysis and conclusions as an “accurate depiction of the legal position,” he does not accept it as an “accurate assessment of the technical reality.”[11] He argues that “INTERPOL’s lack of power to act preemptively in fighting government abuse of the diffusion system” stands not on legal grounds but on the lack of INTERPOL’s “technical ability to do so.”[12] Dr. Bromund reasons that because the nature of diffusions is such that governments exchange them directly, bypassing any preliminary check from the General Secretariat, it is “not currently possible to make this legal position into a reality.”[13] He argues that to “allow INTERPOL to screen diffusions before transmission,” a “fundamental rewiring” and “fundamental reworking at a technical level of the diffusion system . . . would be necessary,” which in turn would “require a vote in the General Assembly, which by adopting the RPD in 2012 has endorsed the diffusion system as it exists and works today.”[14] I disagree with this position.

In his article ‘INTERPOL’s Lack of Power to Act Preemptively in Fighting Government Abuse of the Diffusion System,’ Dr. Bromund writes: “Mr. Nemets calls on INTERPOL to “monitor and block all incoming requests, including diffusions, to prevent governments from violating INTERPOL’s rules . . . [b]ut he does not explain how this can be done, given the fact that INTERPOL cannot review diffusions – including all abusive diffusions – until after they have been sent and received.”[15] Dr. Bromund argues that “INTERPOL can (and must) prevent abuse before it publishes a notice, precisely because it is the one doing the publishing . . . [b]ut in the context of diffusions, INTERPOL is responsible for preventing abuse, but it lacks the technical power to prevent governments from sending or receiving abusive diffusions.”[16] Dr. Bromund does not explain what he means by the “technical power,” and how it is different from and can exist without the “legal power,” as Dr. Bromund calls it, to monitor and block all incoming non-compliant diffusions, the latter of which, it is my understanding, we both agree INTERPOL already has.

Dr. Bromund seems to think that I suggest that prior to allowing a government to communicate a diffusion, the General Secretariat must first approve it following a compliance check akin to the one it carries out for notices. This is not what I suggest. Instead, I propose a simple filter, a software that would match every incoming diffusion with a database containing the names of individuals whose information the Commission or the General Secretariat have decided to delete due to a violation of INTERPOL’s rules. It is true that such filter must be maintained by the General Secretariat, but so are all INTERPOL databases, mechanisms, and tools, including those that member countries already use to communicate diffusions, as I have already mentioned in my previous article.[17] The diffusion would be blocked from reaching its intended recipients and rerouted to the General Secretariat for further screening only if the filter were to match an incoming diffusion with a name in the database. Such a mechanism cannot be seen as “akin to the notice system’s hub and spoke model,” as Dr. Bromund calls it,[18] changing the nature of diffusions,[19] requiring a “fundamental rewiring” or “fundamental reworking on a technical level of the diffusion system,” as Dr. Bromund argues,[20] or encroaching on the member countries’ right or ability to communicate diffusions directly. In this regard, I also want to reiterate what I have already stressed in my previous article – under INTERPOL’s rules, member countries’ right to communicate diffusions directly does not trump INTERPOL’s power to act preemptively to prevent abuse of its channels and screen and block incoming diffusions before they reach their intended recipients.[21]

In support of his argument, Dr. Bromund also writes: “INTERPOL only receives a diffusion after it has been transmitted and it receives the diffusion simultaneously with the NCBs (or international entities) to which it was sent.”[22] He argues that “INTERPOL cannot review diffusions — including all abusive diffusions — until after they have been sent and received.”[23] From this, he concludes that the mechanism that I suggest should be implemented “could at best only detect the diffusion once it arrives at INTERPOL, and after it has already arrived at its other intended destinations.”[24] Whether this is presented as a legal argument or a description of a process from a purely technical standpoint, we must always remember that although governments exchange diffusions directly, the process, as I have already mentioned here and in my previous article, from its very beginning to its very end, is carried out via INTERPOL’s channels and maintained by the General Secretariat, as is the process of publishing notices.[25] To argue that INTERPOL cannot oversee any part of an operation, which is conducted through its channels, is to contradict the organization’s rules, which unequivocally require the opposite. Dr. Bromund’s argument that INTERPOL does not detect diffusions until after they have already arrived at their intended destination may be an accurate depiction of how the General Secretariat chooses the process to work now, but it is not how it should be working under the INTERPOL rules. If the General Secretariat has indeed adopted the approach that Dr. Bromund describes, it must abandon it and start monitoring all incoming diffusions before they reach their final destination.

Finally, as I have already mentioned here and in my previous article, INTERPOL’s rules already contain provisions that unequivocally grant the organization the power, and indeed require it, to screen and block diffusions before they enter its channels to prevent abuse. The rules also give the General Secretariat broad discretion over mechanisms and tools it can implement and use in order to exercise that power.[26] Therefore, no changes to INTERPOL’s rules are needed, and none of those rules requires INTERPOL to seek authorization from the General Assembly to exercise that power, even if we accepted Dr. Bromund’s recommendation of “fundamental rewiring” and “fundamental reworking at a technical level of the diffusions system.” If any such changes or authorization were necessary, neither Dr. Bromund nor I would be justified in drawing the conclusion that INTERPOL has the power, or as Dr. Bromund refers to it the “legal power,” to screen and block incoming diffusions before they enter the organization’s channels, which, it is my understanding, both Dr. Bromund and I agree INTERPOL already has.

_____

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

[2] Constitution of the ICPO-INTERPOL, art. 36, June 13, 1956, available at https://www.interpol.int/Who-we-are/Legal-framework/Legal-documents; Statute of the Commission for the Control of INTERPOL’s Files, art. 3(2)(C), available at https://www.interpol.int/Who-we-are/Legal-framework/Legal-documents.

[3] Activity Report of the Commission for the Control of INTERPOL’s Files for 2017 § 57, available at https://www.interpol.int/Who-we-are/Commission-for-the-Control-of-INTERPOL-s-Files-CCF/CCF-sessions-and-reports.

[4] Yuriy Nemets, Bill Browder’s Case Highlights Loopholes in Relief INTERPOL Grants Victims of Red Notice Abuse, Red Notice Abuse Report (July 16, 2018), https://rednoticeabuse.com/interpol-must-publicly-explain-why-russia-finally-succeeded-in-placing-bill-browder-on-the-international-wanted-list.

[5] Id.

[6] Ted Bromund, INTERPOL CCF’s Latest Annual Report Highlights Fundamental Flaw in the System, Forbes (Mar. 31, 2019), https://www.forbes.com/sites/tedbromund/2019/03/31/interpol-ccfs-latest-annual-report-highlights-fundamental-flaw-in-the-system/#20e6152b3a11.

[7] Id.

[8] Yuriy Nemets, INTERPOL’s Power to Act Preemptively in Fighting Government Abuse, 35 (Issue 5) International Enforcement Law Reporter 166 (May 2019).

[9] Ted Bromund, INTERPOL’s Lack of Power to Act Preemptively in Fighting Government Abuse of the Diffusion System, 35 (Issue 6) International Enforcement Law Reporter 227 (June 2019).

[10] Id. at 228.

[11] Id. at 227-228.

[12] Id. at 228.

[13] Id.

[14] Id. at 229.

[15] Id. at 228.

[16] Id.

[17] INTERPOL’s Rules on the Processing of Data art. 12(3), 22, 125(1) 2016, available at https://www.interpol.int/Who-we-are/Legal-framework/Legal-documents [hereinafter RPD]; Nemets, supra note 8, at 168-169.

[18] Bromund, supra note 9, at 229.

[19] Id. at 228.

[20] Id. at 229

[21] Nemets, supra note 8, at 167.

[22] Bromund, supra note 9, at 228.

[23] Id.

[24] Id. at 228-229.

[25] RPD, supra note 17, art. 4(1), 12(3), 22, 125(1); Nemets, supra note 8, at 167-168.

[26] RPD, supra note 17, art. 12(3), 22, 125(1); Nemets, supra note 8, at 168-169.

Recent Events Suggest That International Legal Mechanisms are Insufficient for Addressing Continuing Violations of International Law in the Mediterranean

July 11, 2019 by Evan Schleicher Leave a Comment

In Volume 35, Issue 4 of the IELR, I wrote a piece which focused on the Mediterranean migration crisis and the international legal implications of the European decision to suspend EUNAVFOR MED (the military operation established as a consequence of the April 2015 Libya migrant shipwrecks with the aim of neutralizing established refugee smuggling routes in the Mediterranean) naval patrols.[1] As the article noted, there are serious concerns surrounding this program and its emphasis on returning migrants to Libyan ports, which have been deemed as “unsafe…to disembark migrants.” It would seem, then, that a suspension of this program would be a positive. However, in the aftermath of this suspension, European parties have shifted focus towards empowering the Libyan coast guard to intercept migrants and return them to Libya. This reduces liability under international law, but significantly increases risks to migrants.

Several recent events suggest that European governments remain committed to restricting immigrant access to Europe through policies which, while not technically illegal from an international perspective, create significant risks for migrants attempting to cross the Mediterranean.

On June 29^th, Italian officials arrested Carola Rakete, the captain of a ship that rescued 40 migrants from the Mediterranean, after she docked at the southern island of Lampedusa. Italian officials had refused to grant the ship permission to dock for two days after it arrived, prompting Rakete to order the ship to shore at approximately 2 AM. The ship had previously refused to dock in Libya due to concerns about migrant safety. These concerns seem to be well founded in light of another recent event.

On July 3^rd, an air raid in Tripoli killed 44 people and injured 130 when bombs hit a migrant detention center. According to a New York Times Investigation, the detention center was housed nearby to a weapons depot, making it a prime target. In the immediate aftermath of the attack, the United Nations envoy to Libya, Ghassan Salame, said that the attack “clearly could constitute a war crime.” Despite this, and despite UN Secretary-General Antonio Guterres calling the bombing “outrageous” and demanding an independent investigation, the UN Security Council has, to date, failed to condemn the attack or take action.

For its part, the Libyan National Army (LNA) demanding that the UN open an investigation after The Government of National Accord (GNA) stated that: “This crime came after the statements of the air force commander of Haftar’s Libyan National Army [LNA], Mohamed Manfour, and therefore it is he who bears its legal and moral responsibility.” A day later, on July 5^th, the GNA changed its tone and claimed that the United Arab Emirates bombed the detention center using a U.S.-made F-16 fighter jet.

These emerging events suggest that international law is insufficient for addressing migrant insecurity in Libya and across the Mediterranean. Clearly, political uncertainty and sovereignty issues have prevented, and continue to prevent, the effective implementation of international legal standards within Libya. Beyond the boundaries of Libya, European countries have restricted migration and left migrants in an extremely dangerous situation. They have done this all while technically conforming to international law, using the specific phrasing and structure of those laws (this is more fully articulated in the previously mentioned IELR article) in a way that ultimately introduces further risk into the lives of already disadvantaged individuals.

Clearly, something must be done to adapt international legal standards to promote practices which will actually improve conditions for vulnerable populations.

______

[1] Evan Schleicher, The Mediterranean Migration Crisis: Highlighting the Gaps between International Law and Justice, 35 Int’l Enforcement L. Reporter, 141-144, (April 2019).

Emoluments Case Against President Trump Set to Continue

July 3, 2019 by Alex Psilakis Leave a Comment

On June 25, 2019, U.S. District Judge Emmet G. Sullivan denied a request by President Trump to put the emoluments case against him on hold. Citing the “exceptional circumstances” of the case, Justice Department lawyers believed that the case needed to be delayed – and eventually dismissed – as steps such as the civil discovery process would distract the President from carrying out his official duties. Judge Sullivan, however, disagreed, stating that, because the case is on pace to be resolved within six months, the immediate appeal sought by the Justice Department would do little to advance the case’s eventual termination. As a result, the plaintiffs in the case may now begin pursuing records from the Trump Organization, which are to include financial information, interviews, and more.

Judge Sullivan’s opinion can be read here.

This decision is one of many in Senator Richard Blumenthal et al. v. President Donald Trump. Launched in 2018 by Senator Blumenthal (D-CT) and Rep. Nadler (D-NY), more than 200 Democratic legislators are suing President Trump under the foreign emoluments clause of the U.S. Constitution. The clause prevents the president from receiving gifts of any sort from foreign governments without congressional approval. Those suing the president believe that he is routinely violating the clause, as the Trump Organization – which the president has retained ownership of during his tenure – continues to do extensive business with foreign governments. The Kuwaiti Embassy, for example, has held the state’s National Day celebration at the Trump Hotel in Washington, DC for the past three years.

This is not the only case regarding the foreign emoluments clause against the president. The attorneys general of Maryland and the District of Columbia are suing the president under the same clause, but focusing specifically on the Trump Organization’s business as it relates to its Washington hotel. After receiving authorization to commence discovery, the attorneys general pursued an immense array of documents, including marketing materials focused specifically at foreign embassies, as well as credit card receipts and restaurant reservation information. They also subpoenaed federal agencies that potentially spent money at the hotel. But in December 2018, the U.S. Court of Appeals for the Fourth Circuit temporarily blocked this effort. Though the court heard oral arguments from both the attorneys general and Justice Department in March, it has yet to reach a decision. Until it does, the discovery process will remain frozen.

Though the ultimate outcome of these cases remains quite distant, they have already set immense legal precedents. In the attorneys’ general case, U.S. District Judge Peter J. Messitte’s decision to allow the case to move forward serves as the first time a federal judge has interpreted the emoluments clause and applied it to a sitting president. Progress made so far in Blumenthal v. Trump has only reinforced this ruling, suggesting that courts are willing to apply fairly broad definitions as to what qualifies as a gift under the emoluments clause.

The IELR Blog will be there to monitor the case as it progresses.

The Dejia Case Shows the Important Roles for NGOs and Data Analytics in Stopping Forest Crime*

June 27, 2019 by Bruce Zagaris Leave a Comment

In the aftermath of the Environmental Investigation Agency’s (EIA) report and video on illegal logging and export of wood covered by the Convention on International Trade in Endangered Species (CITES), Dejia has denied wrongdoing. The EIA has responded.

This blog post also notes the various enforcement actions brought in the U.S. to prevent the importation of wood imported in contravention of CITES and the Lacey Act, some with the help of environmental non-governmental organizations, using data analytics, another action with the help of the bilateral customs enforcement agreement. It also describes a recent call for consultation requested by the United States Trade Representative to raise with Peru the apparent violation of the United States – Peru Trade Promotion Agreement (PTPA) by compromising the independence of the agency charged with policing illegal logging and export of illegally harvested wood. Finally, the blog post mentions the role of environmental protection and enforcement in free trade agreements, such as the Trans-Pacific Partnership (TPP).

In response, EIA has released two “raw intelligence” videos about the Dejia case following the release of the report that corroborating its allegations:

https://eia-global.org/blog-posts/20190514_Raw_Intelligence_Dejia_Group_Blog

https://eia-global.org/blog-posts/20190522-raw-intelligence-wcts-blog

Other cases in which the U.S. Department of Justice (DOJ) has prosecuted violations of the U.S. Lacey Act, which implements CITES, is in February 1, 2016, when Lumber Liquidators Inc. agreed to pay more than $13 million in criminal fines and forfeitures to resolve a DOJ investigation into the import of wood. Much of its illegal importation of hardwood flooring was manufactured in China from timber that had been illegally logged in far eastern Russia, in the habitat of the last remaining Siberian tigers and Amur leopards in the world. Lumber Liquidators also agreed to a five-year term of organizational probation and mandatory implementation of a government-approved environmental compliance plan and independent audits.[1]

The illegal cutting of Mongolian oak in far eastern Russia is of major issue because those forests are home to the last 450 wild Siberian tigers, Panthera tigris altaica. Illegal logging is the primary risk to the tigers’ survival, because they depend on intact forests for hunting and because Mongolian oak acorns are a chief food source for the tigers’ prey species. Mongolian oak forests are also home to the highly endangered Amur leopard, Panthera pardus orientalis, of which fewer than 50 remained in the wild in 2016. In June 2014, in response to illegal logging and the decline in tiger populations, Mongolian oak was added to the CITES Appendix III.

The EIA has shown the use of data analytics in investigating and showing the illicit trade in wood and timber.

For many years EIA’s investigative work focused on reconstructing the routes that timber takes from the Amazon to the warehouses of U.S. importers, through use of official information obtained under Peru’s Transparency and Access to Public Information Law. The links in this chain are willfully obscured to perpetuate confusion about the origins of almost all timber traded in Peru. EIA was able to reconstruct the chain of custody for trade in cedar (Cedrela odorata) and bigleaf mahogany (Swietenia macrophylla) only because both species are protected under the CITES and hence require specific export permit documents. For how EIA penetrated the chain of illegal exports, see the Laundering Machine: How Fraud and Corruption in Peru’s Concession System Are Destroying the Future of its Forests https://content.eia-global.org/assets/2012/04/The_Laundering_Machine_ENG.pdf.

In 2018, EIA released a new report titled “Moment of Truth”: https://eia-global.org/reports/momentoftruth

EIA’s new report describes important advances since 2012 in Peru’s fight against illegal logging, timber laundering, and its associated international trade – as well as the backlash against these new approaches.

The evidence of persistent illegal logging, systemic corruption, laundering, and illegal timber in Peru’s exports remains overwhelming. While the U.S. has begun to crack down on illegal Peruvian timber, major importing countries like China and Mexico are turning a blind eye.

An analysis of hundreds of pages of official documents shows systematic exports of illegal and high-risk timber from Peru’s main port of Callao during 2015, by dozens of companies and to 18 countries. However, due to revelations of wrongdoing, the analysis for 2016 or 2017 cannot occur, since the Peruvian forest authority has stopped making available the necessary data.

On January 18, 2017 the DOJ announced that 24 pallets of timber seized by the U.S. Department of Homeland Security, Homeland Security Investigations (HSI) on December 20, 2015, at the Port of Houston, Texas for violation of the Lacey Act and customs law were destroyed in accordance with a settlement agreement reached by the United States and the importer of the timber, Oregon-based Popp Forest Products Inc. The agreement prevented the timber that was allegedly harvested in violation of Peruvian law would not enter the U.S. stream of commerce.[2] The allegations were based on a report HSI obtained from the Peruvian government under a Customs Mutual Assistance Agreement, providing the results of an inspection carried out in the areas in which the timber was allegedly harvested. The report showed the timber could not be the species authorized for harvest. The U.S. Forest Service’s Forest Products Laboratory tested samples and corroborated the finding that samples taken from the shipment were not the species authorized for harvest.[3]

On January 4, 2019, the Office of the U.S. Trade Representative (USTR) requested consultations with Peru under the Environment Chapter of the United States – Peru Trade Promotion Agreement (PTPA). Through these environment consultations, the U.S. and Peru will discuss and try to resolve concerns regarding a recent Peruvian action to move the Agency for the Supervision of Forest Resources and Wildlife (OSINFOR) from its position as a separate and independent agency to a subordinate position within Peru’s Ministry of Environment (MINAM). This is the first request for consultations made under the PTPA.[4]

According to the PTPA’s Annex on Forest Sector Governance, “OSINFOR shall be an independent and separate agency and its mandate shall include supervision of verification of all timber concessions and permits.” Peru’s Supreme Decree 122-2018-PCM, published on December 14, 2018, seems to conflict with this provision.

Ambassador Robert Lighthizer, head of USTR, said that by requesting consultations, the Trump Administration is showing that “it takes monitoring and enforcement of U.S. trade agreements seriously, including obligations to strengthen forest sector governance.” According to Lighthizer, “(s)ince its creation in 2008, OSINFOR has played a critical role in Peru detecting and combatting illegal logging, and we are gravely concerned that its independence is threatened.”[5]

On April 10, 2019, in a dramatic reversal of its position, the Peruvian government published a decree that restores the independence of OSINFOR.[6]

Chapter 20 of the Trans Pacific Partnership refers to Multilateral Environmental Agreements (MEAs), but only requires Parties to “adopt, maintain, and implement” CITES rather that the seven MEAs listed for FTA inclusion in the May 2007 bipartisan agreement[7] and in accordance with “fast track” procedures.[8] In spite of these obligations, the MEA commitments do not contained in the text of the TPP.[9] The TPP has two potential enforcement mechanisms in its Environment Chapter: a dispute settlement process available for Parties to the agreement and a framework for what may become a citizen suit provision.[10] While environmental groups have properly criticized the environmental provisions of the TPP, these provisions offer the Parties and their citizens, including environmental groups, mechanisms to use in order to raise illegal logging and wood trade. The fact that the Trump Administration decided not to join the TPP means that it has no provisions with many of the parties to the TPP to raise these issues. The Canadian government explains that the enforcement of the Environment Chapter through the TPP’s dispute settlement mechanism is a first for Canada. In addition, the TPP Environment Chapter also establishes a framework for cooperation in areas of mutual interest in support of the Chapter’s commitments. This includes, for example, working together to address illegal trade in wood and climate change.[11]

The work by environmental NGOs working with data analytics, reviewing customs and trade documentation, and using sophisticated undercover techniques can result in persuading law enforcement agencies and prosecutors to investigate and prosecute illegal trade in wood, especially in violation of CITES. As EIA has shown in the Dejia case, usually illegal wood harvesting and international trade involves multiple criminal violations, such as bribery in obtaining the license to log, false customs declaration, tax crimes in falsely declaring to governments the value of the logs, and money laundering arising from the movement of proceeds of crime and efforts to conceal the same. In addition, wire and mail fraud, predicates to money laundering, are often implicated.

EIA’s use of customs and trade data illustrates the successful use of data analytics to stop illegal wood trade. Three types of data analytics are predictive modeling; outlier detection; and network analytics.

Predictive modeling can generate a profile of a bad actor. The computer can use prior audit cases of customs declarants or taxpayers to ascertain which characteristics of the customs declaration or tax return were the most highly correlated with a successful audit (i.e., geographical region, industry, corporate structure, income bracket). The resulting list of characteristics is called a model. The model can then be used to evaluate customs declarations or tax returns for likelihood of customs or tax evasion.[12]

Outlier detection occurs when the computer is used for customs declarants and taxpayers by like characteristics and looks at customs declarations and tax returns that fall outside the normal. It can be helpful to find new segments to audit that were previously ignored. It may show an inordinately low level of valuation of the wood on the customs declaration or very high level of deductions on the tax return from the prior year. In some cases officials may be able to ascertain outlier characteristics by comparing customs and tax data.[13]

Network analytics (connections) are built on the implicit relationships between individual companies (i.e., people who share addresses, phone numbers or bank accounts). An example is the data from the Panama Papers and/or the Paradise Papers.[14] Investigators can easily detect and visualize corporate structure, the complex flow of financial transactions. Investigators can identify structures and transaction flows as “high risk.” Network analytics is especially useful for complex cross border activities or corporate structures such as pass through entities.[15]

In the coming months and years, if the U.S. and the world are going to come to grips with climate control, environmental NGOs, citizen groups, journalists, law enforcement, and prosecutors will need to cooperate in preventing forest crimes. In this effort, data analytics will play a key role.

__________

*This article is a follow-up to a piece published in the May 2019 edition of the IELR titled: “EIA Releases Report Showing Illegal Logging and Wood Trade by Chinese Company in Congo and Gabon.” You can read the original piece here: https://bit.ly/2LyjVWr.

[1] U.S. Department of Justice, Lumber Liquidators Inc. Sentenced for Illegal Importation of Hardwood and Related Environmental Crimes, Press Rel. 16-116, Feb. 1, 2016 https://www.justice.gov/opa/pr/lumber-liquidators-inc-sentenced-illegal-importation-hardwood-and-related-environmental

[2] DOJ, Justice Department Reaches Agreement to Ensure Destruction of Timber Believed to Have Been Harvested in Violation of Peruvian Law, Press Rel. 17-093,January 18, 2017 https://www.justice.gov/opa/pr/justice-department-reaches-agreement-ensure-destruction-timber-believed-have-been-harvested

[3] Id.

[4] Office of the U.S. Trade Representative, USTR Requests First-Ever Environment Consultations Under the U.S.-Peru Trade Promotion Agreement (PTPA), Jan. 4, 2019 https://ustr.gov/about-us/policy-offices/press-office/press-releases/2019/january/ustr-requests-first-ever.

[5] Id.

[6] Global Witness, The Forest Avengers, Jan. 17, 2019 https://www.globalwitness.org/en/campaigns/forests/forest-avengers/ (accessed June 17, 2019).

[7] Office of the United States Trade Representative, Trade Facts: Bipartisan Agreement on Trade Policy 2 (May 2007), https://ustr.gov/sites/default/files/uploads/factsheets/2007/asset_upload_file127_11319.pdf. Additionally, the exclusion of the six MEAs is noteworthy, given that all Parties to the TPP are also party to at least two of these MEAs left out of the agreement. Sierra Club TPP Text Analysis at 3.

[8] 19 U.S.C. § 4201(b) (10) (A).

[9] Center for International Environmental Law, The Trans-Pacific Partnership and the Environment:

An Assessment of Commitments and Trade Agreement Enforcement 2 (Nov. 2015) https://www.ciel.org/wp-content/uploads/2015/11/TPP-Enforcement-Analysis-Nov2015.pdf

[10] Id. at 3, citing 5 See TPP Article 20.9 (describing the “Public Submission” process); see also TPP Articles 20.20-20.23 (describing “Environmental Consultations,” “Senior Representative Consultations,” “Ministerial Consultations,” and “Dispute Resolution,” respectively).

[11] Government of Canada, What does the CPTPP mean for the environment sector? ps://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cptpp-ptpgp/sectors-secteurs/environment-environnement.aspx?lang=eng.

[12] Predictive Modeling: The Only Guide You’ll Need, MircroStrategy, (last accessed June 17, 2019), https://bit.ly/2ZsWMrR.

[13] Sergio Santoyo, A Brief Overview of Outlier Detection Techniques, Towards Data Science, (Sept. 11, 2017), https://bit.ly/2H1eCgx.

[14] ICIJ, The Panama Papers: Exposing the Rogue Offshore Financial Industry https://www.icij.org/investigations/panama-papers.

[15] Alienor, Network Analytics: What It Is, How Its Used, and Who Benefits the Most, Plixer, (Oct. 26, 2018), https://bit.ly/2Imiecw.

OECD and IBA Issue Report on Proper Roles of Lawyers and International Commercial Structures

June 26, 2019 by Bruce Zagaris Leave a Comment

On May 31, 2019, the International Bar Association and the Secretariat of the Organization for Economic Co-operation and Development published a Report of the Task Force on the Role of Lawyers and International Commercial Structures.

The Report observes that lawyers’ professional obligations and clients’ rights are regulated by domestic laws and regulations, and/or ethical and deontological codes. The Task Force states that there are certain key principles that should apply in this context in order to balance between the rights of, and duties to, the client on the one hand and a lawyer’s other professional or legal duties on the other. The Report sets forth seven principles without prejudice to the rule of law and related legal conventions, a lawyer’s duty of confidence and laws relating to privilege.

The Task Force recommends the Statement of Principles to national bar associations and law societies with a view to encouraging them to adopt the principles and engage with their governments to explain the role of the principles in ensuring the proper administration of justice and in upholding the rule of law. The sponsors also published an executive summary of the report

The Task Force advocates that, where the Principles are adopted and become part of domestic law and/or professional regulations, their disregard should result in the application of proportionate disciplinary measures, including, where appropriate, disbarment, recognized also in foreign jurisdictions.

Principle 1: Non-facilitation of illegal conduct – Although a lawyer may be unwittingly associated with illegal conduct, including financial crimes, a lawyer should not facilitate illegal conduct, and should undertake the necessary due diligence to avoid doing so inadvertently.

Principle 2: Misuse of the duty of confidence and privilege. Notwithstanding the lawyer’s duty of confidence to a client and the concept of legal professional privilege, a lawyer should not use the confidential nature of the lawyer-client relationship or the principles of legal professional privilege to shield wrongdoers. A lawyer should give due and proper consideration to refraining from acting for a client if the lawyer is aware of, or has reasonable grounds to believe, that the primary purpose of the retainer is to permit the client to be able to rely on the confidential nature of the lawyer-client relationship or privileged communication) so as to permit or encourage the client to engage in illegal conduct.

Principle 3: Client due diligence. A lawyer should undertake and document all reasonable and proportionate inquiries in order to identify and verify a client, as well as identify any ultimate beneficiary of the conduct or transaction, the origin of the funds for the transaction (consistent with applicable anti-money laundering or counterterrorism financing legislation), the substantive nature of the conduct or transaction (including expected revenue and taxation consequence of the transaction) and, subject to Principle 5, be satisfied that the conduct and/or transaction is legal in the lawyer’s jurisdictions.

Principle 4: Action where client conduct is may be or becomes illegal. When the conduct of a client is, may be, or becomes illegal, even if it was originally legal and the lawyer continues to be retained by the client, a lawyer should advise the client of the consequences of the conduct and recommend that the client pursues alternative solutions. If the client persists in the conduct, the lawyer should give due and proper consideration to ceasing to act, and terminate the retainer.

Principle 5: Multijurisdictional risk. Where a transaction involves conduct by a client, agents or representatives of a client in more than jurisdiction and the lawyer has reasonable grounds to believe that the conduct may be or may become illegal in a jurisdiction(s), a lawyer should verify that expert advice is or has been obtained by the client from a lawyer experienced in the conduct or transaction in that jurisdiction. If such advice has not been obtained and the client wants to proceed with the transaction, the lawyer should recommend that such advice be obtained (at the cost of the client). If the client declines to obtain such advice and persists in the conduct, then the lawyer should give due and proper consideration to ceasing to act and terminate the retainer.

Principle 6: Use of illegal obtained information. Lawyers should strongly discourage a client from paying private parties or public officials to obtain illegally obtained evince, which of itself may constitute a criminal offense in many jurisdictions. To facilitate this, legal frameworks should be consistent across jurisdictions as much as possible, since it is often through cross-border conduct that confidential or secret information in country A is accessed (without the consent of the owner of the information) and then disclosed to a person in country B. An independent court should, where necessary, resolve the question as to what use can be made of such information, based on the applicable domestic framework.

Principle 7: Disclosure of beneficial ownership. A lawyer should obtain and maintain up-to-date beneficial ownership information and take reasonable measures to verify its accuracy in relation to the lawyer’s clients. Domestic laws should provide for the disclosure of ultimate beneficial ownership of any corporation, trustor other legal entity formed within that country’s jurisdiction. Beneficial ownership information should be available to state regulators, investigators and enforcement agencies. Governments must address whether it needs to be publicly available.

Principle 8: Advertising by lawyers on international commercial structures. Any advertising by lawyers should be transparent, accurate, and truthful. Domestic regulation, bar associations, and law societies should ensure the lawyer advertising is accurate and truthful.

The Report does not seek to duplicate existing international or other national guides for the legal profession in terms how a lawyer should act or not act in certain circumstance. The Report does not seek to cover the many anti-money laundering and counterterrorism financing laws, obligations and disclosure duties that exist in many countries. Instead, it focuses on high-level issues of principle that should assist governments in policy formulation and in guiding lawyers as to how they should conduct themselves, consistent with a lawyer’s underlying domestic legal and ethical obligations.

The Report also sets form the minimum good practice required when a lawyer proposes to accept instructions in a cross-border commercial matter, especially, but not exclusively, from a new client or a client with whom the lawyer has not worked for at least 12 months.

The Report provides detailed guidance for the eight above-mentioned principles with citations to guide legal professionals.

Annex B contains existing guidance concerning the role of lawyers with regard to international commercial structures.

The July issue of the IELR will have a more comprehensive discussion of the Report.

After Iran Downs a U.S. Drone in the Strait of Hormuz, Larger Questions Loom about U.S. Desires to Legally Justify a Possible War with Iran

June 24, 2019 by Evan Schleicher Leave a Comment

On June 20^th, an Iranian surface-to-air missile shot down a United States RQ-4A Global Hawk drone, a high-altitude robot typically used for surveillance over ocean and coastal areas. Both the Iranian Revolutionary Guard Corps and the United States Central Command have confirmed that it was, in fact, an American surveillance drone that Iran shot down and that the wreckage landed in the Strait of Hormuz. While the U.S. maintains that Iran shot down the drone in international waters, Iranian officials maintain that the drone had breached Iranian airspace. This dispute led to escalating tensions over the weekend, with reports emerging that the President had approved multiple military strikes against Iran only to hesitate at the last minute. The President confirmed this in a series of tweets on June 21. With the possibility of U.S. retaliation still lingering, it is important to ask: What legal basis does the United States have for striking Iran?

According to Stanford legal scholar, Allen Weiner, “a limited use of force against Iran for downing a U.S. drone would be consistent with the exercises of force that Presidents have authorized many times in the past.” In international law, this type of action would be justified as a “necessary and proportionate force in self-defense in response to an attack against a U.S. drone…if the U.S. drone was operating, as it is allowed to do, in international airspace.” If the drone were shot down in Iranian airspace, as Iran claims, then America would not have a self-defense justification for a counterstrike. The initial uncertainty surrounding the exact location of the crash site will make it difficult in the short-term to know whether the Iranian decision to shoot down the U.S. drone was legally justified.

In this context, it is confusing and worrying that the U.S. would look to retaliate so immediately for an attack which resulted in no U.S. casualties. The fact that estimates indicated that as many as 150 people could die in such a strike makes it even more concerning that the U.S. seemed poised to undertake such a strike. In recent months, and despite recent pushback from the President, the U.S. government has seemed primarily concerned with developing legal justifications for a more encompassing kinetic response to Iran.

Central to this effort has been the development of a rigorous legal justification for a US war effort which has focused primarily on the 2001 Authorization for the Use of Military Force (AUMF), which allowed the president “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” This piece of legislation was mentioned in the previous blog post within the context of indefinite detention.

Multiple officials, including Secretary of State, Mike Pompeo, have explicitly mentioned the AUMF as the legal basis for a war with Iran. Additionally, private conversations between the President and his confidants suggest that, although the President himself opposes a war with Iran, there is extensive institutional support for war at the highest levels of government. Given this support, the question must be asked: Does the AUMF justify a war with Iran?

To begin, the connection between Iran and the 9/11 attackers is dubious at best, but it does merit some attention, given the Administration’s seemingly strong belief that there is a connection. According to the 9/11 Commission Report, in the fall of 1993, Al Qaeda operatives were trained in the Bekaa Valley in Lebanon by Hezbollah operatives. In 2011, the U.S. Department of the Treasury said that it had uncovered a network that “serves as the core pipeline through which Al-Qaeda moves money, facilitators, and operatives from across the Middle East to South Asia” and that Iran is a “critical transit point for funding to support Al-Qaeda’s activities in Afghanistan and Pakistan.” The State Department Country Report on Terrorism has consistently reported evidence of Iranian facilitation of Al Qaeda operations and networks.

Despite what appears to be strong evidence of Iran/Al Qaeda collaboration, internal documents from Al Qaeda indicate that the connection is much weaker than it may appear. A 2018 study by the New America think tank, based on roughly 470,000 declassified files obtained from Osama bin Laden’s compound in 2011, showed no links between Iran and Al-Qaeda regarding the commission of terrorist acts. Rather, it seemed to show that Al Qaeda distrusted Iran and that Iran was deeply uncomfortable about any Al Qaeda presence in Iran. What this suggests is that it is very unlikely that Iran could be connected beyond reasonable doubt to the September 11 attackers, and even less likely that the Iranian government actively or knowingly assisted any of them.

In fact, following the attacks of September 11, 2001, the Iranian government handed over photocopies of three hundred passports associated with suspected Al Qaeda members to the United Nations. Of these three hundred, many would be forcibly deported back to Saudi Arabia and other Arab countries. In an additional gesture of good will, the Iranian regime offered to provide search and rescue support, humanitarian relief, and targeting assistance in the fight against the Taliban and Al Qaeda.

To push forward this justification in the face of significant doubt would have significant political ripple effects. Internationally, using the AUMF to justify a war against Iran would likely be seen as a violation of the dictate that actions taken in self-defense be both “necessary and proportionate.” This would be even more likely if the U.S. were to start a war in response to a specific catalyzing event, like the downing of a drone in international waters. Certainly, a war would not be remotely proportionate to the downing of a single U.S. drone. Further, it is likely that the AUMF would be seen as a convenient excuse for invasion, rather than a legitimate justification, which would likely harm U.S. alliances and create problems for the U.S. similar to those it experienced in Iraq after it became clear that Saddam Hussein had no Weapons of Mass Destruction (WMDs). This would also cause significant domestic political turmoil, as multiple 2020 Democratic candidates have already come out against the move, according to an article in The Intercept. Additionally, five prominent Democratic senators filed a bipartisan amendment on Thursday to the National Defense Authorization Act, or NDAA, for the 2020 fiscal year to prohibit funds from being used for military operations against Iran without congressional approval.

It will be increasingly important in the coming months that legal scholars keep a close eye on U.S. legal arguments surrounding responses to Iranian actions, as these arguments may indicate changing strategies and escalations.

With the Supreme Court Refusing to Hear a Lawsuit Brought by a Yemeni Man Detained at Guantanamo Bay, Questions Resurface Regarding the Legal and Political Ramifications of Indefinite Detention

June 14, 2019 by Evan Schleicher 1 Comment

The Supreme Court on June 10^th refused to hear a lawsuit by Moath al-Alwi, a Yemeni man who has been held in wartime detention for more than 17 years at Guantánamo Bay. In the aftermath of this refusal, Justice Stephen G. Breyer called for a re-examination of the 2004 Supreme Court decision – Hamdi v. Rumsfeld – which has been used to justify the indefinite detention of suspected terrorists, including Mr. al-Alwi, and other actors without trial.

Prior to that 2004 decision, Congress passed the Authorization of the Use of Military Force (AUMF), which states that the President may “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” in the September 11^th attacks. The case itself was concluded when a majority of this Court understood the AUMF to permit the President to detain certain enemy combatants for the duration of the relevant conflict. Breyer’s recent statement is particularly noteworthy because, he, along with Justices O’Connor, Rehnquist, and Kennedy, initially supported the decision in Hamdi v. Rumsfeld. However, this support was not without hesitation. In the plurality decision, Justice O’Connor cautioned that this understanding “may unravel” if the “practical circumstances” were to become “entirely unlike those of the conflicts that informed … the law of war.” She further concluded that the “unconventional nature” of the war on terror presented a “substantial prospect” that detention for the “duration of the relevant conflict” could amount to “perpetual detention.”

Because the “War on Terror” is so amorphous and enduring, it is difficult to establish when the “relevant” hostilities will end, if ever. Certainly, while the non-state and state actors present in the “war” in Afghanistan today are the same as those in the conflict in which al-Alwi supposedly participated, the tactics, alliances, and even leaders of those groups have changed significantly over time. It is important to ask: is this the same “relevant conflict” in which al-Alwi fought? In the context of the AUMF, it seems so. The general authorization to use appropriate force against organizations the President determines to have been a part of the September 11^th attacks continues to operate because the Taliban continue to exist as an organization. Because Mr. al-Alwi supposedly confessed to fighting for the Taliban on the front lines as a member of Osama bin Laden’s 55^th Arab Brigade, he is considered under US law as a member of an organization which was involved in the September 11^th attacks.

The Supreme Court’s refusal to hear Mr. al-Alwi’s case means that, at least in the short-term, indefinite detention will continue to be an active part of U.S. policy unless Congress repeals the AUMF, an action which several legal experts have advocated in the past weeks.

Stepping back, it seems that the rolling back of the AUMF and the end of indefinite detention might be a wise political move as well. Despite the current domestic legality of indefinite detention, it may not be worth the political costs that it is incurring. As written previously in the IELR, the Council of Europe and European states have held hearings and litigated the illegality of the detention programs operated by the U.S. in support of the war on terror.[1] Since 2015, the European Parliament has begun to move strongly against the war on terror-based US detention program, arguing that the fight against terrorism should respect the rule of law, human dignity, human rights, and fundamental freedoms.[2] In one specific case, the U.S. could not find any country that would allow the U.S. to bring a detainee into their territories.[3] While between 2002 and 2006, nearly a quarter of the world’s countries assisted the US government in the conduction of its covert rendition and detention program, the recent inability to find countries that will participate in the program is proof that the political landscape has significantly shifted. This political shift has had an impact on the viability of the detention program and might make it difficult to convince previously strong allies in the war on terror to participate in future campaigns. Consequently, if there is to be any hope to re-building global alliances in the war on terror, some thought must be given to repealing the AUMF or to ending the system of indefinite detention through other means. The current program, both for legal and for political reasons, is quickly becoming untenable.

___

[1] Zagaris, Bruce, “U.S. Court Upholds Interrogation of Libyan on Ship with Respect to Killing of US Ambassador in Benghazi,” International Enforcement Law Reporter, Vol. 33, Issue 9, Sep 2017.

[2] Plachta, Michael, “European Parliament’s Follow-up to the CIA Detention Sites and Torture in Europe,” International Enforcement Law Reporter, Vol. 32, Issue 6, June 2016.

[3] Zagaris, 2017.

Airport Seizures Emphasize the Role of the Illicit Wildlife Trade in India

June 10, 2019 by Alex Psilakis Leave a Comment

One day they found an African horn pit viper, two rhinoceros iguanas, and three rock iguanas. Less than two weeks before that, they discovered 18kg of peacock feathers. A month before that, they uncovered a leopard cub. The list goes on.

This isn’t a zoo, but the Chennai International Airport – a location that has rapidly become a hotspot in the fight against the illegal wildlife trade. The customs department at the airport has grown used to seizing creatures and goods that smugglers seek to illegally sneak out the country, such as star tortoises and sea cucumbers. Yet the airport is facing a new challenge in curbing the smuggling of wildlife into the country.

A number of reasons help to explain this development. Due to its geographic location, Chennai is an easy access point for those departing to or arriving from neighboring Southeast Asian states, especially as a vast amount of affordable flights pass through the airport each day. Due to this position, the city of Chennai has grown to develop a fairly deep smuggling network, where everything from sea horses to pangolin scales passes through. Additionally, wildlife smuggling rings in the region have no shortage of manpower. They routinely turn to young people, such as college students, to act as conduits, offering them attractive amenities in return like free international airplane tickets, a hotel room, and some spending money. Oftentimes, the couriers have no understanding of the handler or the customer they are serving, meaning that, even when they are caught, little more can be done with them other than assigning them a fine and sending them on their way.

India as a whole is a key battleground in the illegal wildlife trade. Between 2009-2017, Indian authorities captured nearly 6,000 pangolins that passed through the country. Pangolins, which can be found throughout India, are one of the most sought after animals in the wildlife trade, as their scales are viewed as key ingredients in traditional Chinese medicine. The Indian star tortoise is another animal that has come under threat due to the trade. Though a stable population currently resides in India, poachers are rapidly pursuing it because of its popularity as a pet. While 10,000 to 20,000 were poached in 2004 throughout their entire habitable region – which includes India, Pakistan, and Sri Lanka – approximately 55,000 were taken from just one Indian village in 2014. Newborn and young Indian star tortoises are routinely poached because their small size makes them easy to conceal at key poaching transit locations, such as airports. Furthermore, wildlife traffickers target as many as 200 types of birds from throughout India, be it for medicinal purposes, consumption, or individuals’ desire to domesticate them.

It comes as no surprise that the wildlife trade permeates India with such prevalence. Studies estimate the trade to be valued at $5 billion globally, making it the fourth largest international smuggling market. The price tag associated with a number of wildlife-related goods has risen rapidly and dramatically, contributing to the staggering international value. The rhinoceros, which can be found in India, provides a stark example of this trend. Rhinos are targeted not only for their meat and bones, but their ivory horns. The value of one kilogram of ivory nearly tripled in just four years, climbing from $750/kg in 2010 to $2,100 in 2014. The typical rhino horn was sold for $29,000/kg in 2017.

Indian authorities, both within airports and around the country, have recently taken a number of steps to combat wildlife smuggling. The airport has strengthened its security presence, and because its security personnel have become accustomed to detecting cases of smuggling, they have become more effective in spotting potential perpetrators. However, much of the work to combat the illegal wildlife trade is not taking place on the ground, but online. In March 2019, for example, a number of NGOs, including TRAFFIC and WWF-India, held a two-day event to promote cyber security awareness for the forest officials of Kali Tiger Reserve, Karnataka. The event touched on several areas relevant to detecting potential crimes online, including communications device investigation, social media investigation, and digital forensics. These methods are all a part of the NGO community’s “Cyber CLAW” training program, in which they strive to improve the cyber capabilities of Forest Department officials across India. Similar programs have trained officials from the state of Assam, as well as Uttar Pradesh and Uttarakhand.

Even though wildlife smuggling remains painfully present in states like India, these actions taken by authorities, as well as international NGOs, emphasize how seriously such groups take the threat of the trade. Only through further cooperation, both with the NGO community and international partners, may India – and others states combatting the illicit wildlife trade – strengthen their enforcement capabilities and weaken smuggling operations. While the recent efforts are great first steps, they are only that – first steps.

Assange’s Extradition Challenged on Both Fronts

June 5, 2019 by Alex Psilakis Leave a Comment

A pair of recent developments has shown how multifaceted and complex the case against Julian Assange is.

On May 31, 2019, Nils Melzer, the UN Special Rapporteur on Torture and other Cruel, Inhumane or Degrading Treatment or Punishment, declared that Assange’s extradition to the U.S. would prove a serious threat to his human rights. According to Melzer, Assange is currently experiencing symptoms of “prolonged exposure to psychological torture,” which include extreme stress, severe anxiety, and fierce psychological trauma. In line with this, Assange’s lawyer suggested that Assange missed a set court appearance because of his health. Additional sources have also stated that Assange has lost a serious amount of weight, and that it is nearly impossible to hold a simple conversation with him.

“In 20 years of work with victims of war, violence and political persecution,” Melzer noted in a statement, “I have never seen a group of democratic states ganging up to deliberately isolate, demonise and abuse a single individual for such a long time and with so little regard for human dignity and the rule of law.” Melzer has cited a specific instance in which Assange may receive, if extradited to the U.S. and faced with additional charges, a life sentence without the possibility of parole, or even the death penalty.

Melzer is not the only official to protest Assange’s treatment. On May 3, 2019, the UN Working Group on Arbitrary Detention – a wing of the Human Rights Council – condemned the British government for their excessive methods of incarcerating Assange. The body criticized the UK government for imposing a disproportionate sentence on Assange, noting that he was still detained for violating bail even though the bond related to the bail is no longer favored by the government. It also rebuked the government for incarcerating Assange in Belmarsh prison, a top-level security prison meant to host the most serious of criminal offenders.

According to the Washington Post, Assange is undergoing detention in Belmarsh not only because of its security status, but its close proximity to Westminster Magistrates’ Court, where the government is processing his extradition case. Additionally, Assange is not being held in the “Category A” wing of Belmarsh – which some have referred to as the “Guantanamo Bay” of the UK – but the “Category B” wing, which provides him an individual unit within a cell block of 70 inmates.

Though Assange’s treatment in Belmarsh is not Melzer’s greatest concern regarding the prisoner.

“There’s no chance he’ll get a fair trial in the U.S. That’s where I draw the line.”

Days after this development, a Swedish court announced that Assange should not be extradited to Sweden for the reopened rape investigation against him. The Uppsala District Court, which ruled on the case, declared that the case need not be abandoned. Instead, it noted that Swedish prosecutors, at this point, may only question Assange in the UK. Eva-Marie Persson, Sweden’s Deputy Director of Public Prosecutions, has instead pledged to issue a European Investigation Order, which would allow her to interview Assange in the UK. She may appeal the court’s decision as well.

These events at the UN and Sweden have added even more layers to a case that is already immensely complex. Since an extradition request by Sweden is off the table for now, the U.S. may have an easier time arguing their case in front of the UK, as they would be the only state pursuing his extradition at that time. However, statements made by officials like Melzer reveal the serious pressure on the UK around potentially extraditing Assange to the U.S. The U.S.’s decision to charge Assange with violating the Espionage Act has received sharp condemnation from media and the human rights community around the world, with many viewing such a move as an attack on free speech and free press. If the UK needed any less of a reason to extradite Assange to the U.S., Melzer’s findings may meet that criteria.

The U.S. must submit their official extradition request to the UK by June 11. Once that happens, who knows where the case will go, and what it will bring out.