IELR Blog

North Korean Embassy Raid: As Answers Emerge, Many Questions Remain

May 1, 2019 by Alex Psilakis 1 Comment

In early April, the IELR Blog reported on the break-in at the North Korean Embassy in Madrid. Though Spain sought the extradition of those involved in the raid, the U.S. refused to comment on the situation, let alone offer their open assistance. As a result, it appeared as though the assailants had escaped, leaving behind a complex political incident that entangled the U.S., North Korea, and Spain, all in the shadow of the failed Trump-Kim summit of February 2019.

One month later, the case continues to develop. On April 23, 2019, the U.S. arrested Christopher Philip Ahn, a U.S. citizen and former Marine, for his involvement in the raid. Spain, who put out the arrest warrant against Ahn, has filed a number of charges against him, including robbery, illegal restraint, and associating with criminal organization. U.S. enforcement officials learned of Ahn’s participation in the raid when Adrian Hong Chang, the de facto leader of the group, informed the FBI of Ahn’s involvement. Video surveillance captured images of Ahn as well. Awaiting extradition, Judge Jean Rosenbluth denied Ahn bond, forcing him to remain in custody.

Just days after Ahn’s arrest, U.S. authorities issued an arrest warrant for Hong Chang himself. A Mexican citizen with permanent residency in the U.S., Hong Chang faces charges similar to those of Ahn, including breaking and entering, as well as causing injuries. The arrest warrant – which references information provided by Spanish authorities – labels Hong Chang as the architect and leader of the seven-person raid.

Hong Chang has been on the move from the moment the raid ended. Calling an Uber to escape the scene of the raid, Hong Chang acted under the alias “Oswaldo Trump.” When the Uber parked too close to the police stationed outside the embassy, he cancelled it and called a new one. He travelled to Toldeo, Spain, then onto Lisbon, Portugal, where he flew to the U.S. The day after the attack, he called and set up a meeting with FBI agents in New York. He informed the agents of his role in the raid, and turned over the items that he captured, which included pen drives and hard drives. He claimed that, though they carried dangerous weapons like knives, they did not display them. Hong Chang also voluntarily met with FBI agents in Los Angeles, where he informed them of Ahn’s role in the raid. Yet with the recent release of the arrest warrant, these attempts to garner the favorable treatment of U.S. law enforcement officials appear to have failed. U.S. authorities believe that Hong Chang lies somewhere in the Central District of California, but his exact location remains unknown.

Hong Chang’s lawyer, Lee Wolosky , has sharply criticized U.S. authorities for accepting North Korea’s version of the story. “In due time,” he stated, “We expect to be able to present additional evidence that contradicts the story made up by the North Korean government.” Wolowsky also represents the Free Joseon, an organization that seeks the overthrow of the Kim regime in North Korea. Though Free Joseon originally claimed responsibility for the raid, they have since reneged on that statement, instead arguing that they were invited into the embassy. Free Joseon has, however, committed sharp acts of protest against the Kim regime in the past. They took credit for saving the surviving family members of Kim Jong Nam, the half-brother that Kim Jong Un allegedly assassinated in 2017. They also spray-painted their name and symbol on the North Korean Embassy in Malaysia in March, alongside the phrase, “We shall rise.” They released a video of a man smashing images of Kim Jong Il and Kim Il Sung, the previous two leaders of North Korea, as well. Such an act is viewed as heretical in North Korea, since figures of the regime are meant to be viewed with absolute reverence and respect.

Two months on from the February 22 raid, much remains publically unknown. Though U.S. authorities have arrested one man in connection with the raid and are pursuing another, the whereabouts and status of the five other assailants remains a mystery. Furthermore, it remains to be seen how far the U.S. will be willing to go to assist in the prosecution of U.S. individuals who committed crimes in the North Korean embassy. While the U.S. may be upholding their obligations to Spain under international law, executing warrants and preparing individuals for extradition, each step the U.S. takes in this direction indirectly supports the Kim regime. After the FBI returned the items stolen from the embassy to Spain, Spain promptly returned them to North Korea. Additionally, the U.S. has shown little hesitation in moving forward with extradition proceedings against those allegedly involved in the raid, like Ahn.

Since the U.S. and Spain are bound by an extradition treaty, the U.S. is legally bound to follow through on processing the request. Certain exemptions within the treaty could potentially allow the U.S. to avoid extraditing those involved in the raid. According to Article 5, Section 3 of the treaty, extradition shall not be granted when the offense in question is of a “political character.” The raid on the embassy could be viewed as a political act, since it was carried out as a form of protest against the Kim regime. However, the political exemption likely does not apply to this case because the exemption is so narrow. Courts usually recognize the political offense exception when the act committed is done so directly against the state, and possesses none of the elements of an ordinary crime. Rarely are violent acts considered, but if they are, they are minor and almost never involve innocent civilians. Typical crimes exempted include treason, sedition, and espionage, which normally involve peaceful acts like speaking out against the government or demonstrating peacefully. Since Spain is not seeking the extradition of the assailants on these charges, as they are instead focusing on crimes like breaking and entering and causing injuries, it is unlikely that the political exemption will apply in this case.

The raid has undoubtedly placed the U.S. in a difficult situation. In observing the case as it develops, it is worth analyzing how the U.S. balances its legal obligations to Spain with its adversarial attitude toward North Korea. Additionally, five of the seven assailants remain on the run, one of which includes a South Korean national. How legal proceedings develop against these individuals – if any do – will prove worth considering as well. Seeking answers to the many questions that remain, the IELR Blog will continue to monitor the ramifications of the raid in the U.S. and around the world.

US Leaves Arms Trade Treaty, Raising Concerns over Worsening Human Rights Conditions in Latin America and Globally

April 29, 2019 by Evan Schleicher Leave a Comment

On April 26^th, President Trump signed an executive order meant to withdraw the United States from the UN Arms Trade Treaty, a 2013 treaty meant to set global standards for regulating transfers of conventional arms, from rifles to tanks and airplanes. He signed the executive order at a National Rifle Association speech, throwing his pen into the crowd afterwards to great applause and proclaiming that he was acting to protect America’s sovereignty and Second Amendment rights.

Although President Trump’s speech to the NRA was obviously meant to be flashy and dramatic, this move has been a long time coming. In January, the administration told Congress that they intended to finalize rules to shuffle which agency oversees consumer gun exports and, in the process, to relax export regulations and oversight. This rule change placed the Department of Commerce, which has a far simpler process for approving international arms sales than does the State Department and which does not even charge a fee for the process, wholly in charge of the verification of international arms sales. Further, under new rules, Congress does not have to be notified of arms deals in advance of their occurrence. This is worrying, because Congress has acted multiple times previously to block arms sales over human rights concerns. These moves have been widely criticized because, while the State Department has the existing framework and personnel to vet arms exports on human rights and security grounds, the Commerce Department does not. As such, the potential for human rights abuses arising from US international arms sales will almost certainly increase dramatically.

Despite the overwhelming perception that the State Department system was effective at protecting human rights, it is worth noting that the US record on arms sales has been anything but solid in recent years. IELR Editor-in-Chief, Bruce Zagaris wrote in 2016 that a lack of effective export controls within the US has led to a significant flow of “high-powered weaponry from the U.S. to Latin America and the Caribbean which has exacerbated soaring rates of gun-related violence in the region and undermine[d] U.S. influence in the Western Hemisphere”. Between 2015 and 2017, the United States approved $2 million to $4 million in gun sales per year to Honduras, an amount which is significant in a relatively poor country like Honduras. Some of the guns sold to Honduras were turned on protestors in 2017 and many others ended up in the hands of criminals, with photo evidence revealing that many of the guns used by state forces in the 2017 protests had been exported from Colt’s Manufacturing in Connecticut.

Because the escalation of violence and abuse in these Latin American countries has fueled the current migrant crisis, it is likely that US efforts to deregulate its international arms trade and to increase arms sales will contribute to a further escalation of the migration crisis in Central America and Mexico. Parallel situations have occurred in Libya, Afghanistan, and Syria, suggesting that further deregulation of the US arms trade will be a source of increasing instability globally, not just in Latin America.

So, why does the United States continue to operate in ways which are likely to undermine its long-term national security objectives? The answer is alluded to in the previous reference to Trump’s NRA speech: domestic politics. It is not an accident that the President chose this venue to sign his executive order withdrawing the US from the ATT. In international organizations, domestic politics remains the strongest indicators of a states’ compliance with agreements. The NRA and other opponents of the ATT have historically wielded significant political power in the United States. The NRA, one of the strongest lobbying groups in the US, spent over $36 million on the Trump campaign in 2016, breaking its previous records for campaign spending. There were also allegations that the group illegally coordinated with the Trump campaign to maximize the value of expenditures on ads and to avoid repetitive efforts. President Trump has responded to this support by heavily supporting the NRA, even going so far as to attack the New York attorney general’s office this week for “illegally” investigating the NRA.

The Administration’s wholehearted acceptance of the NRA’s views on this issue are unfortunate, because the Arms Trade Treaty, while imperfect, provided an international framework which could help to resolve the previously mentioned migration crises and to reduce the risks posed to US national security by unregulated international arms sales. Thus, despite likely failure, active efforts must be made to bring the US into closer compliance with the agreed upon principles of the treaty.

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, and has also interned at the Department of State previously.

Current Case Against Former Somali Commander and Current Virginia Resident Showcases the Reach of the Torture Victim Protection Act

April 23, 2019 by Alex Psilakis 2 Comments

On May 13, 2019, Colonel Yusuf Abdi Ali, former commander of the Somali National Army, will stand trial for his alleged involvement in the torture and attempted extrajudicial killing of Farhan Warfaa. Col. Ali, referred to as Tukeh, served under Somalia’s Said Barre regime, which ruled through a military dictatorship from 1969-1991. However, after the regime was overthrown, Col. Tukeh moved to Canada, and then the U.S., where he retained permanent residency status since 1996.

Mr. Warfaa alleges that Col. Tukeh captured him just before civil war broke out. Col. Tukeh rounded up Mr. Warfaa, alongside the other men and boys in the village, and transferred them to the Military Headquarters of the 5^th Brigade of the Somali National Army, where Col. Tukeh served as the commanding officer. Mr. Warfaa claims that Col. Tukeh tortured and interrogated him, eventually shooting him five times at point-blank range, assuming him dead. Somehow, though, he survived, and Col. Tukeh’s soldiers later released him in exchange for payment from Mr. Warfaa’s family. He further alleges that Col. Tukeh targeted him and his village because of their ethnic status, being members of the Isaaq clan. Col. Tukeh allegedly disarmed Isaaq soldiers under his leadership, sending them to Hargeisa to face massacre alongside their own. As many as 200,000 individuals were executed in Hargeisa under the Said Barre regime, though with a near-countless number of bodies in mass graves, no one knows exactly how many people were killed.

While Col. Tukeh will face trial on May 13, the path to this trial has been long and laborious. Mr. Warfaa first brought claims against Col. Tukeh in 2004, suing him under the U.S. Alien Tort Statute and the Torture Victim Protection Act. Due to multiple delays and stays, the case did not go to court until 2014, when the District Court for the Eastern District of Virginia dismissed Mr. Warfaa’s claims regarding the Alien Tort Statute. However, the court also dismissed Col. Tukeh’s claim that he deserved immunity as a foreign official. In 2016, the Fourth Circuit Court of Appeals upheld the lower court’s ruling, allowing Mr. Warfaa to move forward in suing Col. Tukeh under the Torture Victims Protection Act. In 2017, the Supreme Court refused a request for judicial review of the decision, eliminating a final technical hurdle to Mr. Warfaa’s lawsuit.

While the dismissal of the Alien Tort Statute means that Mr. Warfaa cannot sue Col. Tukeh for war crimes and crimes against humanity, the Torture Victim Protection Act allows him to seek justice for the alleged torture and attempted extrajudicial killing he experienced. Passed in 1991, the Torture Victim Protection Act allows victims of torture or extrajudicial killings to pursue civil actions against their alleged perpetrators. Victims – or, in the cases of extrajudicial killings, legal representatives or claimants – may file a lawsuit against those that act under actual or apparent authority of any foreign nation. However, before seeking remedies in the U.S., victims must exhaust “adequate and available remedies” where the alleged crime occurred.

Mr. Warfaa’s legal representation, the Center for Justice and Accountability (CJA), has experience in carrying out suits against abusers of the Said Barre regime. After CJA filed suit against General Mohammad Ali Samantar, Samantar was deemed liable for human rights atrocities. As a result, he had to pay $21 million to Somali survivors represented by CJA. In 2013, CJA also won a judgement Col. Abdi Aden Magan, the former chief of the Somali National Security Service. CJA represented Abukar Hassan Ahmed, a law professor and human rights advocate, who experienced physical and emotional trauma at the hands of Col. Magan. Professor Ahmed won $15 million in damages from Col. Magan.

No sum of money can adequately make up for the damages that victims of torture and extrajudicial killings experience at the hands of ruthless officials. However, policies like the Torture Victim Protection Act at least offer a remedy in which victims may hold accountable those that cause them so much suffering. Though Mr. Warfaa will never be able to forget the pain he alleges he experienced at the hands of Col. Tukeh, his victory in court would provide him the opportunity to label Col. Tukeh the criminal that he has always seen him as.

XIX World Congress of Criminology Set to Unite Experts from around the World

April 22, 2019 by Alex Psilakis Leave a Comment

Background

On October 27, 2019, the 19^th World Congress of Criminology will commence in Doha, Qatar. The Congress, which will run from October 27-31, will gather academics, researchers, professionals, and policy makers to consider relevant, contemporary issues in crime and criminology. Since its inaugural event in 1938 in Rome, Congresses have been held throughout the world, visiting cities including Rio de Janeiro (2003), Barcelona (2008), and New Delhi (2016).

Sponsors and Supporters

This year’s event in Doha symbolizes the truly global reach of the Congress, as well as of those sponsoring and supporting it. The group that plays the largest role in organizing the Congress – and has since its commencement – is the International Society for Criminology (ISC). Founded in 1937, the ISC strives to support activities and research aimed at fostering a better understanding of the crime phenomenon on a global scale. It also works to translate research into policy making and programmatic interventions, as well as assist in the creation of top-tier criminology and criminal justice programs. Additionally, the ISC publishes the International Annals of Criminology alongside Cambridge University Press, emphasizing their deep involvement in the subject matter.

The United Nations Office on Drugs and Crime (UNODC), through its Education for Justice (E4J) initiative, is another one of the major organizations supporting the Congress. The E4J initiative seeks to support the Doha Declaration of 2015, which calls for universal education amongst children, as well as the prevention of terrorism, corruption, and crime. The E4J initiative has crafted educational materials, such as university modules and teaching guides, in their effort to develop a culture of lawfulness among children and youth. Finally, the Qatar University College of Law is another one of the Congress’s supporters.

Topics and Presentations

The Congress will cover a wide range of topical areas and issues. The Congress will focus on a number of general areas, which include “Science, Technology and Teaching in Criminology,” as well as “Researching, Investigating and Preventing Crime.” Yet it will still touch on a wide variety of topics, which include international law and human rights. Themes covered within this field are to include “International Criminal Law and International Criminal Courts,” “Immigration and Crime,” and “Transnational Crime.” Alongside these, the Congress will consider comparative studies related to criminology and criminal justice. Specific issues areas to be discussed include “Globalization and Crime Trends,” alongside “Cross-Regional and Cross-National Comparison.”

The Congress offers not only an immense variety of topics for presenters to discuss, but a diverse array of ways through which they may present their projects. Individuals may not only present a paper, but hold a roundtable session, present a poster, or participate in a workshop. Participants may even read poetry, literature, or a similar form of creative work that is in some way related to criminology or criminal justice. Through offering this flexibility, the Congress hopes to create a diverse, energetic environment that allows discussion on criminology and criminal justice to thrive however possible.

Additional Information

The submission deadline for the Congress is August 15, though materials are accepted on a rolling, first-come-first-serve basis. Authors must submit the title of their work, as well as an abstract, here. Individuals may also register for the Congress here. If you have any questions, you may contact the Congress by filling out this form.

Questions Emerge Regarding the Legality of European Arms Sales, But Sales Continue

April 20, 2019 by Evan Schleicher Leave a Comment

This week French armed forces minister Florence Parly publicly stated that French weapons have not been used against civilians in Yemen after leaked intelligence published by investigative website Disclose showed that French arms, including tanks and laser-guided missile systems sold to Saudi Arabia and the United Arab Emirates, were believed to have been used in the Yemeni war against civilians. Prior to the release of this report, originally dated September 25, 2018, the French Government had maintained that French arms sold to Saudi Arabia were being used purely for defensive purposes along the border. This information raises new questions about whether the French have been selling the Saudi coalition weapons in contravention of international law.

Human Rights Watch has contended that they have been, pointing to the 2008 European Union Common Position on arms exports as evidence. The position in question, Council Common Position 2008/944/CFSP, which went into effect December 8, 2008, states that European countries should “deny a [weapons] export license if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law.” Because this position is codified as a treaty in European Union legal codes, it has universal force within the EU and should act as the basis of actions regarding the arms trade for all European nations.

Expanding on this earlier EU treaty, the 2013 UN Arms Trade Treaty states that “a State Party shall not authorize any transfer of conventional arms…if it has knowledge at the time of authorization that the arms or items would be used in…attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party”. Further, it states that if there is an overriding risk of the undermining of peace or of the commitment or facilitation of serious violations of international humanitarian law or human rights law, that the exporting state should not authorize the export. France ratified this treaty on April 2, 2014, meaning that if they have violated any of these principles, they are fully liable, both under international law and under EU law.

There have been significant concerns raised by multiple actors regarding Saudi actions in Yemen, with Germany establishing a unilateral arms embargo against Saudi Arabia in October 2018, which was recently extended until September of this year, in response to evidence of humanitarian and human rights abuses by coalition forces. The United Nations Office of the High Commissioner for Human Rights released a 41-page report written by the Group of Regional and International Eminent Experts on Yemen in late 2018 which strongly suggests that the coalition had perpetuated, and continues to perpetuate, crimes and violations under international law. There are grounds to believe that the coalition “may have conducted attacks in violation of the principles of distinction, proportionality, and precaution that may amount to war crimes”.

UN Human Rights Chief Zeid Ra’ad al Hussein stated in March 2016 that “it would seem that the coalition is responsible for twice as many civilian casualties as all other forces put together, virtually all as a result of air strikes”. Despite the creation of a Joint Incidents Assessment Team and attempts to improve accountability, Hussein argues that Saudi efforts to address these potential violations of international humanitarian law continue to be woefully insufficient. Evidence has emerged that the assessment team has consistently failed to properly investigate allegations of airstrikes killing civilians. Further, the coalition lacks clear rules of engagement regarding compliance to international humanitarian law, meaning that it tends to respond to criticism in the aftermath of civilian casualties rather than working proactively to address potential dangers to civilians. This is reason to believe that abuses will continue. It is especially easy to draw this conclusion when, on March 26^th, an alleged Saudi airstrike struck a hospital run by Save the Children, leading to civilian casualties, including the deaths of four children.

The Saudi coalition has also engaged in the systematic bombing of food and water resources in Houthi-controlled areas. Research on patterns of bombing in Yemen reveals that in the “first 17 months of the Saudi-led bombing campaign there was “strong evidence that coalition strategy has aimed to destroy food production and distribution” in areas controlled by the Houthis and allied forces loyal to former president Ali Abdullah Saleh”. Further, in February 2016, reports indicated that Saudi planes bombed and destroyed a reservoir that served as a source of drinking water for thirty thousand people. Similar actions in 2018 show a consistent pattern of behaviour. The Protection of Objects Indispensable to the Survival of the Civilian Population Protocol Additional to the Geneva Conventions of 12 August 1949 states that “it is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs [and] drinking water installation and supplies and irrigation works”. Thus, Saudi actions in these instances reflect another clear violation of international law.

Despite clear evidence of violations of international law by Saudi coalition members in Yemen, it remains unlikely that arms sales will slow. This is particularly apparent because the German embargo’s renewal included an exception which would allow Germany to continue to sell systems jointly developed with other countries to Saudi Arabia and its allies. They have already approved a serious of arms sales to the Saudi and UAE groups. Coupled with France’s refusal, at least initially, to curtail its arms sales, this fact suggests that political and economic interests will continue to take precedent over international law, even within “progressive” institutions like European Union.

U.S. Announces New Sanctions against Cuba, Venezuela and Nicaragua

April 19, 2019 by Bruce Zagaris Leave a Comment

On April 17, 2019, the United States government announced new sanctions against Cuba, Venezuela, and Nicaragua.

In a Miami speech, National Security Advisor John Bolton announced the Trump administration is reimposing limits on the amount of money Cuban Americans can send to relatives in Cuba and ordering new restrictions on U.S. citizen, nonfamily travel to Cuba. In a Miami speech last November, Bolton referred to the three countries as the “Troika of Tyranny.” in his new speech, Bolton called them “the three stooges of socialism.”

Also on April 17, Secretary of State Mike Pompeo said the administration will remove restrictions that have prevented lawsuits from U.S. citizens seeking compensation for property expropriated by the Cuban governments when it came to power in 1958.

Venezuela

OFAC designated Banco Central de Venezuela, or the Central Bank of Venezuela, pursuant to E.O. 13850, as amended, for operating in the financial sector of the Venezuelan economy. Additionally, OFAC designated Josefa Ruzza Terán (Ruzza), pursuant to E.O. 13692, as amended, who is determined to be a current or former official of the Government of Venezuela. Multiple OFAC-designated individuals currently hold leadership positions with the Banco Central de Venezuela, including Simon Alejandro Zerpa Delgado and William Antonio Contreras, both of whom are Directors of the bank and were designated by OFAC pursuant to E.O. 13692 in 2017 and 2018, respectively.

Ruzza Terán is a Director of Banco Central de Venezuela. Additionally, Ruzza was appointed in July 2018 as a Director on the Board of Directors for the Venezuelan Department of Foreign Commerce, also known as CORPOVEX In May 2018, he was appointed the Vice President of Finance of Petroleos de Venezuela, S.A., which was designated on January 28, 2019, pursuant to E.O. 13850.

Nicaragua

On April 17, OFAC also designated Laureano Ortega Murillo, the son of Nicaraguan President Daniel Ortega and Vice President Rosario Murillo, as well as Nicaraguan bank Banco Corporativo SA (BanCorp). Taken pursuant to Executive Order (E.O.) 13851, the sanctions target corrupt financial operations and Ortega regime support networks. OFAC explained the individual and entity designated support a regime that, since April 2018, has cracked down on political opposition, leading to the death of 325 persons, the injury of more than 2,000, the imprisonment of hundreds of political and civil society actors, and over 42,000 Nicaraguans seeking refuge in Costa Rica.

Cuba

Pompeo explained the Trump administration will end waivers, activated by five presidents over the past 20 years, of Title III of Helms-Burton, enacted in 1996, permitting compensation lawsuits by U.S. citizens against any entity or person “trafficking” in confiscated property in Cuba. The law includes foreign companies and persons.

On April 17, 2019, a joint statement by Federica Mogherini, Minister of Foreign Affairs of Canada Chrystia Freeland and EU Commissioner for Trade Cecilia Malmström said “the EU and Canada consider the extraterritorial application of unilateral Cuba-related measures contrary to international law. We are determined to work together to protect the interests of our companies in the context of the WTO and by banning the enforcement or recognition of foreign judgements based on Title III, both in the EU and Canada.” They said their laws allow counter-claims, so the decision will lead to an unnecessary spiral of legal claims.

In a briefing the Assistant Secretary for Western Hemisphere Affairs Kimberly Breier characterized the activation of the Title III suits and reimposition of sanctions as supporting the Cuban people and denying resources to the regime, especially to the security services in Cuba. Yet, especially the travel restrictions will undermine the small amount of economic activity due to U.S. travel, much of which benefits Cubans who have operate their own bed and breakfast places, restaurants, and other Cubans that participate in the tourism sector.

The potentially challenging aspects of the new sanctions will be how to keep the support for U.S. action in Venezuela while reimposing sanctions on Cuba and allow suits under Title III of Helms-Burton, which will hurt Canada and the EU.

The next issue of the IELR will discuss in more detail these developments.

Former Manager for International Airline Pleads Guilty to Acting as an Agent of the Chinese Government without Notifying the Attorney General

April 19, 2019 by Bruce Zagaris Leave a Comment

On April 17, 2019, Ying Lin pleaded guilty in the U.S. District Court in Brooklyn, New York to serving as an agent for the People’s Republic of China without notifying the Attorney General, by working at the direction and control of military officers assigned to the Permanent Mission of the PRC to the United Nations. Lin, a former manager with an international air carrier headquartered in the PRC (the Air Carrier) improperly facilitated the transport of packages from John F. Kennedy International Airport to the PRC aboard Air Carrier flights as the behest of the PRC military officers and in violation of Transportation Security Administration (TSA) regulations.

The defendant’s actions helped Chinese military officers to evade U.S. law enforcement scrutiny of packages that they sent from New York to Beijing.

Charges

Lin, 48, worked for the Air Carrier from 2002 through Fall 2015 as a counter agent at JFK Airport and from Fall 2015 through April 2016 as the station manager at Newark Liberty International Airport. During her employment with Air Carrier, Lin accepted packages from PRC military officers, and placed those packages aboard Air Carrier flights to the PRC as unaccompanied luggage or checked the packages under the names of other passengers on those flights. Since the PRC military officers did not travel on those flights, Lin’s actions violated TSA regulations, requiring that checked baggage be accepted only from ticketed passengers. In addition, Lin encouraged other Air Carrier employees to assist the PRC military officers, instructing them that because the Air Carrier was a PRC company, their primary lo loyalty should be to the PRC.

For her illegal acts, Lin obtained benefits from the PRC Mission and PRC Consulate in New York. The benefits included tax-exempt purchases of liquor, cigarettes and electronic devices worth tens of thousands of dollars, and free contracting work at her two residences in Queens, by PRC construction workers who were allowed under the terms of their visas to work only on PRC government facilities.

Sentences and Law

When sentenced, Lin faces up to 10 years’ imprisonment. As part of the guilty plea, Lin agreed to forfeit approximately $25,000 as well as an additional $145,000 in connection with her resolution of the government’s forfeiture verdict in United States v. Zhong, No. 16-CR-614 (AMD).

In particular, Lin is charged with violating 18 U.S.C. § 951(a). The statute requires a person who is, other than a diplomatic or consular officer or attaché, when she acts in the U.S. as an agent of a foreign government to first notify the Attorney General. The law excludes duly accredited diplomats and consuls and persons engaged in a legal commercial transaction.

Analysis

The indictment and plea illustrate increased prosecution for lack of transparency, namely persons representing foreign principals and governments who fail to register under the Foreign Agents Registration Act or in this case fail to notify the Attorney General.

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

Utilizing International Cooperation and Networking, the State Department Strives to Strengthen Global Enforcement Efforts

April 16, 2019 by Alex Psilakis Leave a Comment

During the week of April 15, 2019, enforcement agents from around the world will meet in the United States for the fifth annual Towards a More Safe and Secure World International Visitor Leadership Program. International law enforcement, security, counternarcotic, and judicial officials from 56 countries will meet with their U.S. counterparts in 16 cities, focusing on how to improve efforts in combatting transnational crime and countering terrorism. The program will begin in Washington, DC, where plenary sessions will occur at the State Department and National Defense University involving security experts from both the public and private sector.

After meeting in Washington, the foreign officials will visit small and medium-sized cities throughout the U.S., conversing with law enforcement officers and public officials of the federal, regional, and local level. Program consultations will analyze mutual threats related to issues including border security, money laundering, and cyber security. The three-week program will wrap up with two events. First, the St. Petersburg Police Department will host a Multijurisdictional Counterdrug Taskforce Training program in Tampa, Florida. Finally, the FBI’s New York Field Office will co-host the Combatting Transnational Crime Global Cooperation Conference in New York City.

The State Department has outlined a number of project objectives they hope to fulfill in their efforts. They aim to strengthen global cooperation mechanisms to combat terrorism and other transnational crime threats. The State Department also hopes to better understand the means by which they impede global criminal activities including drug trafficking and trafficking in persons. They seek to improve partnerships between community-based organizations and law enforcement agents as well. Furthermore, they desire to address conflicts related to balancing law enforcement and security, while protecting civil liberties. These objectives, among the others they possess, emphasize how the State Department is taking serious, substantive steps to improve international enforcement cooperation, while developing a network of foreign officials more likely to trust one another and work together.

Now in its fifth year, the Towards a More Safe and Secure World program has brought a vast array of officials to the U.S. to study a variety of issues. In 2018, 80 security and law enforcement officials traveled to the U.S. with the program. This included Simon Cheung, a Chief Inspector with the Hong Kong Police Force, as well as Joseph Lengmang, a Director General of a government peacebuilding agency in Nigeria. Mr. Lengmang praised the program, noting, “I am very confident that [the program] is going to lead to a resounding working relationship among nations. Security is the responsibility of everyone, and it’s not going to be possible to think that one single country would have the capacity to deal with transnational challenges and crimes.”

One state that has taken a great deal away from the program is Bosnia and Herzegovina. While Bosnia looked to U.S. and international standards when rebuilding their judiciary and police after the Yugoslav Wars, they continue to recognize the value of international cooperation and networking. Edin Jahic, chief of the Section for Fighting Organized Crime and Corruption at Bosnia’s Ministry of Security, attended the program in 2018 and voiced his deep support for it. He stressed that his country has adopted U.S. mechanisms, such as plea agreements and a witness protection program, which have proven highly successful. He also valued the opportunity to meet private sector and university analysts, as well as develop relationships with his European counterparts.

“I am very fortunate to meet these guys,” said Jahic. “We’ve already made some friendships that are going to last more than these three weeks and, of course, it’s going to be very helpful for my future job.”

The experiences and thoughts of Mr. Jahic emulate what success within the Towards a More Safe and Secure World International Visitor Leadership Program looks like. Through promoting international enforcement cooperation and developing a global network of actors, the State Department is taking the steps needed to assist themselves and the global community in confronting transnational crime and terrorism. The program also illustrates how states (e.g., the U.S.), help develop international networks.

Despite the State Department Banning 16 Saudis, Questions Remain Over Whether the Trump Administration Will Pursue Justice in the Case of Jamal Khashoggi

April 14, 2019 by Evan Schleicher Leave a Comment

On April 8^th, Secretary of State Mike Pompeo announced that 16 Saudis, including one of the closest aides to Crown Prince Mohammed bin Salman, were being barred from entry to the United States under Section 7031(c) of the Department of State, Foreign Operations, and Related Programs Appropriations Act of 2019. The full list of individuals can be seen here.

The move was made in response to continued criticism about the lack of accountability for the individuals involved in the Jamal Khashoggi case and it reflects a shift in the Secretary of State’s attitudes on the issue. In January, Secretary Pompeo met with Saudi officials and focused on the internal Saudi investigative and judicial processes as a source of accountability. However, despite this shifting stance, it is still not clear if this new move is a genuine and effective push for justice or simply a political ploy to lessen criticism of the Trump Administration’s policies towards Saudi Arabia.

The confirmation of the new US Ambassador to Saudi Arabia on April 10^th provides some insight into long-term US intentions towards Saudi Arabia. The Senate voted overwhelmingly to confirm the appointment of retired four-star general, John Abizaid, the first US ambassador to the Kingdom since 2016. General Abizaid collaborated extensively with the Saudi military during his time as the Central Command chief from 2003 to 2007, working first with Saudi military commanders at the height of the Iraq War and then with those same commanders and other officials as executive assistant to the Joint Chiefs of Staff.

During his confirmation hearing, Abizaid discussed the Khashoggi murder as a short-term problem that requires a forceful discussion. He has previously pointed to the Saudi internal reform plan Vision 2030 as evidence that Saudi Arabia can be a long-term, moderate partner within the Middle East, despite concerns regarding the actions of the Crown Prince. Although the Senate and House of Representatives have both passed resolutions that would end U.S. support for the Saudi-led coalition in Yemen, an important rebuke of Riyadh, Abizaid has repeatedly said that it is important for support to continue, making it clear that his calls for justice in the case of the Khashoggi murder do not exceed his and the Administration’s support for the Saudi regime.

General Abizaid’s attitudes towards the Kingdom, combined with evidence that the US recently provided authorization for the sharing of nuclear technology and expertise with Saudi Arabia, makes it highly likely that the US will remain committed to a strong bilateral partnership, despite symbolic actions like the banning of individuals connected to the Khashoggi murder. The case itself will remain an important part of the US-Saudi dynamic, though, as the domestic trial of those involved in Khashoggi’s murder continues within the Kingdom. Amid allegations that Khashoggi’s family has accepted blood money from the Saudi government, Salah Khashoggi, Jamal’s son, has affirmed that the trial will continue and that those responsible will be brought to justice. Absent a strong American push for accountability, it will likely fall entirely on the Saudi legal system to seek out justice for the murder of Jamal Khashoggi.

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

April 13, 2019 by Evan Schleicher Leave a Comment

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

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

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

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

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

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

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

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

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