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 Lack of Power to Act Preemptively in Fighting Government Abuse of the Diffusion System

Friday, June 7, 2019
Author: 
Ted Bromund
Volume: 
35
Issue: 
6
Abstract: 

In Volume 35, Issue 5 of the International Enforcement Law Reporter (May 2019), Mr. Yuriy Nemets argued that “INTERPOL’s rules not only give the organization the power to screen all incoming diffusions, notices and requests from governments and block them before they enter the organization’s channels, the rules actually require INTERPOL to do so to prevent abuse.” While I accept this assessment as an accurate depiction of the legal position, I cannot accept it as an accurate assessment of the technical reality. Our disagreement stems fundamentally from our different understandings of INTERPOL’s nature, with Mr. Nemets seeing it as a legal entity, whereas I see it as a fundamentally political organization, albeit it one that acts in the realm of international law enforcement. Exploring these different understandings sheds light on the fundamental challenges that Mr. Nemets and I agree Interpol must confront. Before I explain the grounds of my disagreement, I will set out the subjects on which I believe Mr. Nemets and I agree. We are opposed to the abuse of the INTERPOL system for political and other illegitimate purposes, a subject on which I have written widely. We are also self-evidently concerned by abuse of INTERPOL diffusions, which has received less attention than INTERPOL’s red notices. Finally, we believe that INTERPOL should do more to combat these abuses, and that INTERPOL must abide by the rules in its Constitution and its Rules on the Processing of Data (RPD) if it is to limit these abuses.

International Report Filed with the ICC Accuses European Union of Crimes Against Humanity in the Libya Situation

Friday, June 7, 2019
Author: 
Michael Plachta
Volume: 
35
Issue: 
6
Abstract: 
On June 3, 2019, a group of international lawyers submitted a report to the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) calling for the European Union (EU) and some of its Member States to face prosecution for enacting migration policies “intended to sacrifice the lives of migrants in distress at sea.” This document is a result of a two-year pro-bono clinical project, comprised of a group of lawyers and a dozen students. The two main authors of the submission are Juan Branco, who formerly worked at the ICC as well as at France’s foreign affairs ministry, and Omer Shatz, an Israeli lawyer who teaches at Sciences Po University in Paris. The lawyers assessed European migration policies in the Mediterranean over recent years, paying particular attention to the end of Italy’s military-humanitarian rescue operation Mare Nostrum in 2014 and the subsequent shift to policies focused on deterrence. Their submission claims that this shift toward deterring migrants from crossing the Mediterranean to reach the EU resulted in: (i) the deaths by drowning of thousands of migrants, (ii) the refoulement of tens of thousands of migrants attempting to flee Libya, and (iii) complicity in the subsequent crimes of deportation, murder, imprisonment, enslavement, torture, rape, persecution and other inhuman acts, taking place in Libyan detention camps and torture houses.

Danish Tax Authority Settles $239 Million Civil Fraud Case with U.S. Pension Funds

Friday, June 7, 2019
Author: 
Bruce Zagaris
Volume: 
35
Issue: 
6
Abstract: 

On May 29, 2019, the Danish Customs and Tax Administration (SKAT) announced that dozens of U.S. pension plans have agreed to a $239 million settlement, concluding litigation over dividend taxes.  According to the settlement, 61 pension plans have agreed to repay tax refunds received in connection with dividends between 2012 and 2015. The settlement is a major achievement in SKAT’s global effort to claw back tax refunds worth $2.8 billion for which Tax Minister Karsten Lauritzen said they had no right. According to Lauritzen, the agreement is for the full amount received by the 61 pension plans. The agreement, the terms of which are confidential, requires the pension funds to make an immediate payment of 950 million Danish kroner (approximately $141 million) and pay the remainder over four years.  The names of the pension funds were not disclosed. An important element of the settlement is that the settling pension plans have agreed to cooperate with SKAT’s remaining cases against 242 other U.S. funds who are continuing to litigate.

South Africa Decides to Extradite Former Finance Minister to Mozambique Rather than the U.S.

Friday, May 31, 2019
Author: 
Bruce Zagaris
Volume: 
35
Issue: 
6
Abstract: 

On May 21, 2019, the South African Minister of Justice and Correctional Services Michael Masutha announced that his government intended to extradite Mozambique’s former finance minister Manuel Chang to Mozambique rather than the U.S.  In April the Kempton Park Magistrate’s Court ruled that Chang could be extradited to either country, leaving the decision to the South African government. Robert Mearkle, spokesperson for the U.S. embassy in Pretoria, registered on behalf of the U.S. “great disappointment” that South Africa has decided to extradite Chang to Mozambique rather than to the U.S. where he is charged with fraud and other related crimes.  Civil society organizations in Mozambique suspect that Chang will evade charges in Mozambique for alleged complicity in a huge shipping contract scam which has cost Mozambique US $2 billion.  Mearkle said the U.S. embassy is holding discussions with the South African government and exploring options to review the decision.

UN Secretary General Releases Statement on International Humanitarian Law and Artificial Intelligence: Using the Past to Prepare for the Unknowable Future

Friday, May 31, 2019
Author: 
Evan Scheicher
Volume: 
35
Issue: 
6
Abstract: 

On March 25, 2019, UN Secretary General Antonio Guterres released an official statement to the Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems, which meets under the auspices of the Convention on Certain Conventional Weapons (CCW), in which he stated emphatically that “machines with the power and discretion to take lives without human involvement are politically unacceptable, morally repugnant and should be prohibited by international law.” Guterres’s statement is particularly timely because it points to a largely underdeveloped aspect of international law which must be addressed immediately: the lack of understanding on how AI and autonomous weapons systems (AWS) interact with existing international law. Artificial Intelligence (AI) is rapidly becoming an integral part of war and warfare systems.The competition for advantages in war has manifested in recent years with the rapid progression of AWS is progressing rapidly and this manifestation seen as a highly destabilizing development.

U.S. Issues Additional Indictments Against Julian Assange

Friday, May 31, 2019
Author: 
Alex Psilakis
Volume: 
35
Issue: 
6
Abstract: 

The fight over Julian Assange has shown no sign of slowing down. On May 23, 2019, the U.S. raised the stakes, charging Assange with 17 additional crimes in violation of the Espionage Act. According to the indictment, the U.S. has charged Assange with conspiracy to receive national defense information, obtaining national defense information, and disclosure of national defense information, all alongside the initial charge of conspiracy to commit computer intrusion. The indictment stresses that Assange generally directed Manning to steal vast numbers of secret documents, including State Department cables, documents on the wars in Iraq and Afghanistan, and Guantanamo Bay Detainee assessment briefs. Manning initially released these documents, the indictment notes, in response to a list published by WikiLeaks titled “Most Wanted Leaks” in 2009. Eventually, she entered into direct communication with Assange. For example, when Manning noted that she may have run out of classified documents to illegally disclose, Assange noted, “curious eyes never run dry.”

EU Court of Justice Clarifies the Concept of “Judicial Issuing Authority” in the European Arrest Warrant’s Procedure

Friday, May 31, 2019
Author: 
Michael Plachta
Volume: 
35
Issue: 
6
Abstract: 

On May 27, 2019, the Court of Justice of the European Union, Grand Chamber, (the Court) delivered two judgments giving its interpretation of one of the key concepts underlying the European Arrest Warrant scheme based on the 2002 Framework Decision,[2] that is, the “judicial issuing authority.” This is not the first time that the Court has been called to clarify the legal elements of the EAW procedure. Two Lithuanian nationals and one Romanian national are challenging, before the Irish courts, the execution of European arrest warrants issued by German public prosecutor’s offices and the Prosecutor General of Lithuania for the purposes of criminal prosecution. They are accused of crimes described as murder and grievous bodily injury (OG), armed robbery (PF) and organized or armed robbery (PI). OG brought an action before the High Court challenging the validity of that European arrest warrant, on the ground, inter alia, that the Public Prosecutor’s Office in Lübeck is not a ”judicial authority” within the meaning of Article 6(1) of Framework Decision 2002/584.

U.S., Europol and European Law Enforcement Dismantle GozNym Cyber-Criminal Network in Eastern Europe

Friday, May 24, 2019
Author: 
Bruce Zagaris
Volume: 
35
Issue: 
6
Abstract: 

On May 16, 2019, the U.S. Attorney Scott W. Brady of the Western District of Pennsylvania and Europol announced from Europol’s headquarters in The Hague, Netherlands that a joint law enforcement operation has dismantled a complex transnational organized crime network using GozNym malware to steal an estimated $100 million from unsuspecting victims in the United States and around the world.  GozNym infected tens of thousands of victim computers worldwide, mainly in the U.S. and Europe.  An important feature of the operation was the unprecedented initiation of criminal prosecutions against members of the network in four different countries as a result of cooperation between the U.S., Georgia, Ukraine, Moldova, Germany, Bulgaria, Europol, and Eurojust. The operation was conducted by the U.S. Attorney’s Office for the Western District of Pennsylvania and the FBI’s Pittsburgh Field Office, along with Europol, Eurojust, and prosecutors and/or law enforcement agencies in Georgia, Ukraine, Moldova, Bulgaria, Georgia, Moldova, and Germany. An indictment unsealed on May  16 returned by a federal grand jury in Pittsburgh charges 10 members of the GozNym criminal network with conspiracy to commit computer fraud, conspiracy to commit wire fraud and bank fraud, and conspiracy to commit money laundering.  Previously, a related indictment charged an eleventh member of the conspiracy.  The victims of these crimes were primarily U.S. businesses and their financial institutions, including a number of victims located in the Western District of Pennsylvania.

U.S. Attorney General Announces Continued U.S. Funding of Law Enforcement Efforts at 3rd Ministerial of Northern Triangle Attorneys General, as Guatemala Prepares to Abolish Anti-Corruption Prosecutors

Friday, May 24, 2019
Author: 
Bruce Zagaris
Volume: 
35
Issue: 
6
Abstract: 

On May 16, 2019, U.S. Attorney General William P. Barr, during the 3rd Ministerial of the Northern Triangle Attorneys General in El Salvador, announced that, as part of a coordinated law enforcement action known as Operation Regional Shield, President Trump has approved continued funding for law enforcement efforts between the U.S. and the Northern Triangle countries (El Salvador, Guatemala, and Honduras). In particular Barr said the U.S. will continue to fund law enforcement efforts through a number of mechanisms. These include the ongoing work of the project’s law enforcement efforts, as well as the continuing work of the U.S. Office of Overseas Prosecutorial Development Assistance and Training (OPDAT) Resident Legal Advisors in each of the three countries. They additionally include the FBI’s Transnational Anti-Gang teams, and the Drug Enforcement Administration’s Sensitive Investigative Units, and Homeland Security’s (HSI) work to counter human smuggling and trafficking.

Danish Prosecutors Change 10 Former High-Level Danske Bank Officials

Friday, May 24, 2019
Author: 
Bruce Zagaris
Volume: 
35
Issue: 
6
Abstract: 

On May 8, 2019, Danish economic prosecutors charged ten former leading employees of Danske Bank in connection with Danish police economic unit SØIK’s investigation into money laundering involving the bank’s Estonian branch. Among the defendants is Henrik Ramlau-Hansen, the former chair of the Financial Supervisory Authorities, Denmark’s financial regulator, from 2016 to 2018, and former finance director of Danske Bank.  The Danish economic police raided his house in connection with a €200 billion money laundering scandal.  The prosecutor charged him with failure to prevent certain transactions at Danske Bank for which he was finance direction from 2011 until 2015. In October 2013, he allegedly attended an important meeting when Danske executives discussed the non-resident portfolio in Estonia, according to minutes of the meeting. Prosecutors brought the charges soon after U.S. authorities requested their first interviews in the case, apparently indicating cooperation between Danish and U.S. authorities.

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