The International Enforcement Law Reporter

The International Enforcement Law Reporter is a monthly print and online journal covering news and trends in international enforcement law.

Since September 1985, the International Enforcement Law Reporter has analyzed the premier developments in both the substantive and procedural aspects of international enforcement law. Read by practitioners, academics, and politicians, the IELR is a valuable guide to the difficult and dynamic field of international law.

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')

Friday, July 12, 2019
Author: 
Yuriy Nemets
Volume: 
35
Issue: 
7
Abstract: 

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. 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. 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.  I have suggested that the organization should implement reliable software to conduct such monitoring. 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. 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.”

Council of Europe Calls on Russia to Re-open and Continue Investigation Into the Murder of Boris Nemtsov

Wednesday, July 3, 2019
Author: 
Michael Plachta
Volume: 
35
Issue: 
7
Abstract: 

At its 26th sitting held on June 27, 2019, the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution 2297 (2019) calling on the Russian authorities to “re-open and continue” their investigation into the murder of opposition leader Boris Nemtsov, listing a number of “serious concerns” over its independence and effectiveness. The debate and the resolution were based on a comprehensive Report prepared by the Committee on Legal Affairs and Human Rights.The Assembly, unanimously approving the report, concluded that “not all relevant aspects of the case have been examined and the full truth has not been revealed.” Boris Nemtsov, an internationally renowned leader and figurehead of the political opposition, former deputy Prime Minister of the Russian Federation, former Deputy Speaker of the State Duma, former Regional Governor of Nizhny Novgorod and a member of the Yaroslavskaya regional parliament, was shot dead in Moscow on February 27, 2015 on the Bolshoi Moskvoretsky Bridge, right next to the Kremlin, one of the most heavily protected and monitored locations in the country. 

UN Report on the Murder of Jamal Khashoggi Reveals Fissures in the International Community

Wednesday, July 3, 2019
Author: 
Alex Psilakis
Volume: 
35
Issue: 
7
Abstract: 

On June 19, 2019, the United Nations Human Rights Council released a report on the death of Jamal Khashoggi, the Saudi national and Washington Post reporter killed at the Saudi consulate in Istanbul in 2018. The report not only analyzes the killing of Khashoggi, but considers factors including responsibility, prosecution, and international accountability. It holds no punches, as it blatantly calls out the state of Saudi Arabia for ordering the extrajudicial killing of Khashoggi. It also calls on other states that have a direct stake in the situation, such as the U.S., to launch a criminal investigation into the case. Politics, however, makes this outcome highly unlikely, limiting international enforcement efforts while eroding the perceived protection of fundamental freedoms around the world.

 

Sudan and the ICC: Time for a New Approach

Wednesday, July 3, 2019
Author: 
Evan Schleicher
Volume: 
35
Issue: 
7
Abstract: 

On April 11, Omar al-Bashir was deposed from the seat of the presidency by the army after almost five months of popular protests against his regime. A day later, the head of the Transitional Military Council’s political committee publicly stated that Bashir would be tried for his “crimes” in Sudan, but that he would not extradited to face international justice. Despite this stance, ICC chief prosecutor Fatou Bensouda has been persistent in calling for Bashir to be handed over to the International Criminal Court (ICC) to face justice for masterminding atrocities in the western Darfur region. Her argument centers on the fact that, “although Sudan is not a party to the Rome Statute, Darfur fell under ICC jurisdiction in March 2005 after the UN Security Council referred the situation to the ICC prosecutor.”

MH17 Joint Investigation Team Names Four Suspects in the Case

Friday, June 28, 2019
Author: 
Michael Plachta
Volume: 
35
Issue: 
7
Abstract: 

On June 19, 2019, the Dutch-led Joint Investigation Team (JIT) probing the downing of Malaysian Airlines flight MH17 over Ukraine in July 2014 held a press conference. For the first time since the investigation’s initiation, prosecutors have announced charges against suspects in the case. The criminal investigation of the JIT – which includes officials from the Netherlands, Australia, Belgium, Malaysia, and Ukraine – has been ongoing since 2014. On September 28, 2016, the JIT announced that flight MH17 was shot down by a missile from the 9M38 series, which was launched by a BUK TELAR system. The system was transported from the Russian Federation to an agricultural field near the town of Pervomaiskyi in Eastern Ukraine, from where the missile was launched. After firing, the system - with one missing missile – was returned to the Russian Federation. In May 2018, the JIT announced its conclusion that the BUK TELAR used to shoot down MH17 came from the 53rd Anti-Aircraft Missile Brigade, a unit of the Russian armed forces from Kursk in the Russian Federation. It added that it had a “long list” of persons of interest and appealed again for witnesses as the investigation continues.

Austrian Supreme Court Affirms Lower Court’s Decision to Extradite Ukrainian Tycoon to U.S. on Corruption Charges

Friday, June 28, 2019
Author: 
Bruce Zagaris
Volume: 
35
Issue: 
7
Abstract: 

On June 25, 2019, the Austrian Supreme Court affirmed a lower court’s decision granting a request from the United States government to extradite Ukrainian tycoon Dmytro Firtash, where a U.S. grand jury in Chicago has indicted him for bribery. In 2014, a federal grand jury in Chicago indicted Firtash for his alleged role in bribing Indian officials in an unsuccessful effort to obtain mining contracts that would put him in a position to furnish titanium to Boeing, a U.S. aviation company, which has its headquarters in Chicago.  In March 2014, Austrian authorities arrested Firtash some days after Ukrainian Prime Minister Viktor Yanukovich fled to Russia after the Maidan Revolution deposed him. An Austrian lower court ruled Firtash can be extradited notwithstanding arguments by his lawyers that he is the victim of political “persecution” by the U.S., where he has never been. The interest of U.S. authorities in Firtash started in the early 2000s, after he appeared as a trusted and influential partner of Russian president Vladimir Putin’s administration in controlling the Ukrainian-Russian gas trade.

Walmart Inc. and Brazilian Subsidiary Agree to Pay $137 Million and Sub Pleads Guilty to FCPA Violations

Friday, June 28, 2019
Author: 
Bruce Zagaris
Volume: 
35
Issue: 
7
Abstract: 

On June 20, 2019, Walmart Inc. (Walmart), a U.S.-based multinational retailer and its wholly owned Brazilian subsidiary, WMT Brasilia S.A.R.L. (WMT Brasilia), settled Foreign Corrupt Practices Act (FCPA)  charges by agreeing to pay a combined criminal penalty of $137 million and a guilty plea by WMT Brasilia to end a seven-year inquiry. Walmart admitted that, from 2000 until 2011, certain Walmart personnel responsible for implementing and maintaining the company’s internal accounting controls related to anti-corruption were aware of certain failures involving these controls, including relating to potentially improper payments to government officials in certain Walmart foreign subsidiaries, but still failed to implement adequate controls.  Such controls would have, among other things, ensured: (a) that adequate anti-corruption related due diligence  was conducted on all third-party intermediaries (TPIs) who interacted with foreign officials; (b) that sufficient anti-corruption-related internal accounting controls concerning payments to TPIs existed; (c) that proof was required that TPIs had performed services before Walmart paid them; (d) that TPIs had written contracts that included anti-corruption clauses; (e) that donations ostensibly made to foreign government agencies were not converted to personal use by foreign officials; and (f) that policies concerning gifts, travel and entertainment sufficiently addressed giving things of value to foreign officials and were implemented.  Although senior Walmart officials responsible for implementing and maintaining the company’s internal accounting controls related to anti-corruption knew of these issues, Walmart did not start to change its internal accounting controls related to anti-corruption to comply with U.S. criminal laws until 2011.

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

Friday, June 28, 2019
Author: 
Bruce Zagaris
Volume: 
35
Issue: 
7
Abstract: 

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 background to the Report was the publication by the International Consortium of Investigative Journalists (ICIJ) of the Panama Papers and the Paradise Papers. Following on from the London Anti-Corruption Summit which took place in May 2016, the OECD and the International Bar Association (IBA) agreed to form a task force to develop professional conduct standards and practice guidance for lawyers involved in establishing and advising on international commercial structures and recommended actions for governments.[4]  As a result of the ICIJ reports, the media has shone a spotlight on offshore commercial structures and the role of lawyers in the establishment and conduct of those structures that may facilitate potentially illegal conduct.  Hence, the media has focused on the alleged conduct and/or responsibility of lawyers and the law firms involved in those structures.

Trump Administration Concludes Migration Enforcement Accords with Guatemala and Mexico

Saturday, June 22, 2019
Author: 
Bruce Zagaris
Volume: 
35
Issue: 
6
Abstract: 

On June 1, 2019, Kevin K. McAleenan, the acting secretary for the Department of Homeland Security (DHS), signed a two-year agreement with Guatemala to send up to 80 homeland security agents to Guatemala to help train the local authorities and combat human trafficking rings. DHS officials will work as “advisers” to Guatemala’s national police and migration authorities, attempting to disrupt and interdict human smuggling operations.  The idea is to cut off popular routes to the U.S. and deter migrants from starting their trips north through Mexico. The U.S. and Guatemala have signed a Memorandum of Cooperation.  DHS says the agreement permits “concrete actions” including “law enforcement training and collaboration to improve criminal investigations.” In a predawn raid on May 29, the investigators jointed Guatemalan policy to break a human trafficking ring.  Guatemala served 10 arrest warrants, including for Luis Augusto Torres Rosales, known as “Bimbo.”  Authorities suspect him of illegally transporting dozens of migrants from El Salvador and Honduras through Guatemala to Mexico.

New Zealand Stops Chinese Extradition on Human Rights Concerns

Friday, June 21, 2019
Author: 
Bruce Zagaris
Volume: 
35
Issue: 
6
Abstract: 

On June 11, 2019, the New Zealand Court of Appeal ruled against returning South Korean national and New Zealand resident Kyung Yup Kim, who is accused of murdering a 20-year-old Chinese woman while he was visiting Shanghai a decade ago, ordering the New Zealand executive to reassess its decision to extradite him on the basis he could be subjected to human rights abuses if returned. The Court of Appeal quashed a ministerial order and raised concerns over torture and the chances of a fair trial.  It ruled the justice minister Andrew Little to reconsider the case, taking into account evidence about whether Kim, who denies the charge, is at risk of torture and whether he would obtain a fair trial. The strongly worded ruling came two days after hundreds of thousands of people in Hong Kong protested a plan by the local government to permit extraditions to China. It further followed a decision by Australia two years ago to refuse to sign a proposed extradition treaty with China due to concerns about international human rights.

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