Tag Archive | "international law"

Enterra Solutions

The Rise of Corporate Social Responsibility

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Enterra Solutions

Corporate social responsibility (CSR) is a rising trendin business practices as consumers continue to demonstrate their preference for socially and environmentally conscious companies.[1] Though consumers, and their ethically use of buying power, are the predominant factor pushing companies towards socially and environmentally conscious practices, legal developments are also creating legally binding obligations for business to respect human rights. The most relevant developments in the field holding companies liable for human rights violations include mandatory disclosure laws, legislation to stop unfair business practices, and innovative use of contractual terms.

Mandatory disclosure laws are a legally binding obligation for companies to engage in a form of human rights due diligence. In the United States, the California Supply Chain Transparency Act mandates companies doing business in California with a revenue greater than 100 million dollars supply a statement describing how the organization verifies no human trafficking exists in its supply chain.[2] Similar legislation is currently being discussed in the United States’ Congress; if this law is passed this same disclosure mandate would apply to all companies doing business in the United States. The United Kingdom’s Modern Slavery Act[3] and the recently passed Duty of French Vigilance Law[4] are other disclosure laws that impose even greater obligations on business to respect and protect human rights. For example, the Duty of French Vigilance law imposes compensatory damages of up to 10 million euros for violation of the obligations in the act.[5]

Beyond mandatory disclosure laws, Section 17200 of the California Business and Professions Codehas been repeatedly used by California courts as legally binding precedent mandating companies respect and protect human rights.[6] In Doe v. Unocal, Burmese villagers suffered forced labor, rape, torture, and murder while working for the defendant, Unocal.[7] The company defendant ultimately settled after the California court held that Section 17200 supports claims “brought in California for injuries occurring outside of California as long as some of the wrongful conduct occurred within California.”[8] Furthermore, in Kaksy v. Nike, the California Supreme Court again interpreted the unfair business practices regulation widely, holding it to include “any unfair or fraudulent business act of practice.”[9]

Finally, human rights advocates, such as Corporate Accountability Lab,[10] are utilizing innovative ways to create contractual terms that hold companies to respect human rights. Some examplesof these contractual terms include ethical intellectual property licensing agreements and third-party beneficiary clauses.[11] Through ethical intellectual property licensing agreements, inventors who wish to ensure their property is not used for human rights violations can include specific legal clauses that prohibit the licensee from using their inventions in unethical ways.[12] If these terms are violated, the inventor will be entitled to liquidated damages that should be given to the victim of the human rights violation. Similarly, third-party beneficiary terms can be included alongside mandatory working conditions in manufacturing contracts.[13] These terms establish the workers of the factory as third-party beneficiaries to the contract, and if the labor standards are violated the factory workers have a right of action.[14]

Though CSR is predominantly advancing based on consumer pressure, some developments in the legal field are creating binding obligations for companies to respect human rights. Hopefully, human rights advocates can utilize both forms of pressure to promote and advance the fundamental human rights of citizens around the world.

Mallory Miller is a Staff Editor with the Denver Journal of International Law & Policy, and a 2L at the Sturm College of Law.

[1] Temasek, The Rise of the Conscious Consumer, Medium (July 7, 2017), https://medium.com/future-of/the-rise-of-the-conscious-consumer-bcc5235cb80d.

[2]Cal. Civ. Code § 1714.43 (West).

[3]The Companies Act 2006, c. 46 (Eng.)

[4]L. no. 2017-399, 27 Mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre[French Corporate Duty of Vigilance].

[5]Id.

[6]Roger Alford, The Future of Human Rights Litigation After Kiobel, 89 Notre Dame L. Rev.1749, 1758 (2013-2014).

[7]Doe I v. Unocal Corp., 395 F.3d. 932 (9th Cir. 2002).

[8]Alford, supra note 6 at 1759.

[9]Alford, supra note 6 at 1759.

[10]Our Mission, Corporate Accountability Lab, https://legaldesign.org/.

[11]Projects,Corporate Accountability Lab, https://legaldesign.org/projects/.

[12]Id.

[13]+Cal Employment Agreement Assignment Clause,Corporate Accountability Lab, https://legaldesign.org/assignment-clause.

[14]Id.

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Source: New York Times

No-Deal Brexit – What Happens to the UK and its Global Neighbors?

Source: New York Times

April 12th is quickly approaching, and with it comes the growing reality of a no-deal Brexit.[1] The effects will extend far beyond the confines of the U.K. An estimate from the Leibniz Institute for Economic Research Halle (IWH) and the Martin Luther University Halle-Witternberg in Germany predicts that 612,000 people, in 43 countries, will be impacted by a no-deal exit.[2] Even with a trade agreement, London alone can lose up 5,000 jobs.[3] The Bank of England predicts its economy will decrease by 6.3-9% in the 15 years post no-deal Brexit compared to if the U.K. remained in the E.U. [4] The Bertelsmann Foundation estimates that a no-deal Brexit will cost the U.K. approximately 57 billion euros a year and the E.U. 22 billion euros.[5]

Stark change is also inevitable in the day-to-day lives of those living in the U.K. Housing markets are predicted to drop by as much as 30%.[6] Furthermore, an already decreased food supply due to increasingly prevalent summer droughts is likely to become more diminished with the addition of custom delays.[7] As of now, only 50% of the U.K.’s food supply comes from the U.K. itself,[8] with 33% being imported from the E.U.[9] This becomes troublesome when combined with the potential tariffs as high as 22% for orange juice, 74% for tobacco[10], and up to 15% for meat and dairy on other E.U. countries.[11] Brexit means British citizens will only be allowed to travel to the E.U. for up to 90 days without a passport,[12] and U.K. companies will likely lose the option to bid on E.U. public contracts.[13]

Surrounding countries will feel the effect, as economies are expected to contract by 8% in Scotland and 9.1% in Northern Ireland.[14] Loss in income per head can be expected to be as high as 726 euros/head in Ireland, 732 euros in the U.K., 120 euros in France, and 115 euros in Germany.[15] The U.K. imported approximately 70 billion pounds worth of goods from the U.S. and close to 78 billion pounds from Germany while exporting more than 110 billion in pounds to the U.S. and close to 55 billion in pounds to Germany in 2017 alone.[16] Germany is predicted to have as many as 100,000 jobs effected by the exit, with 15,000 people in Germany currently employed in motor exports specifically targeting the U.K. alone [17] (approximately 800,000 cars/year[18]). In January 2019, France announced a 50 million euro plan to assure additional customs-hiring such that ports and airports can remain in place to assure that UK companies can continue operating in France following a no-deal Brexit.[19] The U.S. will certainly feel the effects as transactions with their fourth largest market become significantly more costly[20]and American companies lose their English-speaking port into the European economy. [21]

In the meantime, an emergency E.U. summit on April 10 determines the fate of Theresa May’s request for an exit extension until June 30, 2019.[22]

Lisa Caris is the incoming Candidacy Editor for the Denver Journal of International Law and Policy and a 2L at the University of Denver – Sturm College of Law.

[1] Kimberly Amadeo, Brexit Consequences for the U.K., the EU, and the United States (Apr. 3, 2019), https://www.thebalance.com/brexit-consequences-4062999.

[2] David Reid, A ‘No-Deal’ Brexit Could Hit 100,000 German Jobs(Feb. 18, 2019), https://www.cnbc.com/2019/02/18/a-no-deal-brexit-could-hit-100000-german-jobs-study-claims.html.

[3] Amadeo, supra note 1.

[4] Marjorie Chorlins, The Harsh Consequences of a No-Deal Brexit(Jan. 30, 2019), https://www.uschamber.com/series/above-the-fold/the-harsh-consequences-of-no-deal-brexit.

[5] Tobias Buck, No-Deal Brexit Will Hammer Both UK and EU(Mar. 21, 2019), https://www.ft.com/content/f9a5fd52-4b2a-11e9-bbc9-6917dce3dc62.

[6] Allison McCann, Milan Schreuer & Amie Tsang, Where Europe Would Be Hurt Most by a No-Deal Brexit(Feb. 7, 2019), https://www.nytimes.com/interactive/2019/02/07/world/europe/brexit-impact-on-european-union.html.

[7] Amadeo, supra note 1.

[8] BBC Visual Journalism Team, Brexit: 10 Ways You Could Be Affected (Mar. 22, 2019), https://www.bbc.com/news/uk-politics-47470864.

[9] Amadeo, supra note 1.

[10] Amadeo, supra note 1.

[11] McCann, supra note 6.

[12] Agence France-Presse, EU Approve Visa-Free Travel for Britons after “No Deal” Brexit(Apr. 3, 2019), https://www.france24.com/en/20190403-eu-approves-visa-free-travel-britons-schengen-after-no-deal-brexit.

[13] Amadeo, supra note 1.

[14] Orla Ryan, Impact of No-Deal Brexit Would Be “More Severe” and Last Longer in Northern Ireland Than Anywhere Else(Feb. 26, 2019), https://www.thejournal.ie/impact-of-no-deal-brexit-on-northern-ireland-4514836-Feb2019/.

[15] Buck, supra note 5.

[16] BBC Visual Journalism Team, supra note 8.

[17] Amadeo, supra note 1.

[18] McCann, supra note 6.

[19] Victor Mallet, French Employers Warn of No-Deal Brexit “Chaos” (Feb. 2, 2019), https://www.ft.com/content/89aae73c-2632-11e9-b329-c7e6ceb5ffdf.

[20] Amadeo, supra note 1.

[21] Amadeo, supra note 1.

[22]Peter Barnes, Brexit: What Happens Now? (Apr. 5, 2019), https://www.bbc.com/news/uk-politics-46393399.

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Source: REUTERS/Naif Rahma

The Yemeni Civil War: Human Rights Violations by Coalition Forces

Source: REUTERS/Naif Rahma

Source: REUTERS/Naif Rahma

CONFLICT OVERVIEW:

The Yemeni Civil War is currently considered the world’s largest humanitarian crisis.[1] More than three million Yemenis have been displaced; one million have contracted cholera—the largest outbreak of the disease in history; and 22 million—roughly three-quarters of the country’s population—are at risk of famine.[2] The conflict is rooted in a failed political transition that forced the longtime authoritarian president, Ali Abdullah Saleh, to hand over power to his deputy, Abdrabbuh Mansour Hadi.[3] In November of 2014, the Civil War broke out when Houthi Rebels allied with forces loyal to former President Saleh and seized control over much of the country.[4] President Hadi subsequently fled to Saudi Arabia and sought assistance from the international community.[5]

It was at this point that Saudi Arabia intervened based on an Article 2(4) exception to the U.N Charter[6], and formed the Saudi-led coalition.[7] On March 26, 2015, Saudi Arabia began a military intervention alongside eight other Arab states.[8] The U.S., U.K. and France also began supplying the coalition with logistical support.[9] Despite the apparent legality of the Coalition’s initial use of force, the Coalition has subsequently been accused of violating both international humanitarian law and human rights law.

AIRSTRIKES:

The principle of distinctionrequires that “parties to [a] conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.”[10] While humanitarian law recognizes that some civilian casualties are inventible, it imposes a duty to distinguish between combatants and civilians, and to target only combatants and other military objectives at all times.[11]

Despite this established legal norm, the Coalition has seemingly failed to make these necessary distinctions. Coalition air strikes are responsible for most of the documented civilian casualties.[12] In 2018, the United Nations condemned the Saudi-led military coalition for killing civilians and destroying infrastructure, including health centers with airstrikes.[13] The Protocols to the Geneva Convention afford special protections to medical facilities and educational, cultural and religious sites in times of conflict.[14] Despite this, many such facilities and sites have been hit by coalition air strikes throughout this conflict, suggesting that either 1) distinctions are not being made between military targets and protected persons or objects; or 2) the no-strike list of protected objects has not been adequately shared or respected within the coalition command chain.[15]

BLOCKADES:

Even before civil war erupted, Yemen relied heavily on food imports because of a scarcity of water for agriculture.[16] Since the beginning of the Civil War, an air, land and sea blockade by the Coalition has choked off supplies of critical resources including fuel, food, and medical aid.[17] International humanitarian law requires that all parties to a conflict allow and facilitate rapid and unimpeded passage of humanitarian relief, including food, medical supplies, and other survival items.[18] This de factoblockade has left an estimated 78% of the Yemeni population in need of food, water and medical aid.[19] Even when supplies do make it to Yemeni ports, the war has disrupted critical infrastructure, including the road networks used for distribution.[20]

ADDITIONAL HUMAN RIGHTS VIOLATIONS:

Although the airstrikes and blockades constitute the bulk of the Coalition’s alleged violations, a 2018 U.N. report also outlined grounds to substantiate the belief that the Governments of Yemen, the United Arab Emirates and Saudi Arabia are responsible for additional human rights violations, including unlawful deprivation of the right to life, arbitrary detention, rape, torture, ill-treatment, enforced disappearance and child recruitment.[21]

THE FUTURE OF YEMEN:

The humanitarian crisis in Yemen is rarely covered at length in the media, in part due to restrictions and difficulties traveling to the country, combined with reticence about explaining the complexities of the conflict. However, if an end to the conflict is to ever fully be realized, it is imperative that the world keeps in mind and acknowledges the human price of this war. This can only be done if world leaders, including those at the head of the American government, acknowledge the very real and very severe human cost of war, condemn the human rights violations occurring in Yemen, and ultimately end and rectify their own complicity.

Payton Martinez is a Staff Editor with the Denver Journal of International Law & Policy, and a 2L at the Sturm College of Law.

[1] Daniel Nikbakht & Sheena McKenzie, The Yemen War is the World’s Worst Humanitarian Crisis, UN Says, CNN(Apr. 3, 2018), https://www.cnn.com/2018/04/03/middleeast/yemen-worlds-worst-humanitarian-crisis-un-intl/index.html.

[2] Alan Sipress et al., Five Reasons the Crisis in Yemen Matters, Washington Post(June 8, 2018), https://www.washingtonpost.com/graphics/2018/world/why-yemen-matters/?utm_term=.2e7a9b98dd77 [hereinafter Why Yemen Matters].

[3] BBC, Yemen Crisis: Why is There a War?, (Nov. 20, 2018), https://www.bbc.com/news/world-middle-east-29319423 [hereinafter Why is There a War?].

[4] Human Rights Watch, Yemen Events of 2017, (2017), https://www.hrw.org/world-report/2018/country-chapters/yemen.

[5] Id.

[6] U.N. Charter art. 2, ¶ 4. The legal basis for Saudi’s initial intervention in Yemen relates to Article 2(4) of the United Nations Charter. Id.Article 2(4) functions as an absolute prohibition on the use of force, however the use of force has been deemed permissible if it falls under one of three exceptions, including invitation by the government of the State in which the force is being used. Id.In the case of Yemen, the Coalition’s initial use of force has been justified under this exception. Oona Hathaway & Aaron Haviland, View from Socotra Island: Yemen War and Threats to UN Charter, Just Security (May 22, 2018), https://www.justsecurity.org/56585/yemen-war-arm-sales-socotra-island-eroding-norm-territorial-sovereignty/.

[7] Human Rights Watch, supranote 4.

[8] Human Rights Council, Rep. on the Situation of Human Rights in Yemen, Including Violations and Abuses Since Sept. 2014, U.N. Doc. A/HRC/39/43, at 4 (2018) [hereinafter Rep. on the Situation of Human Rights] (explaining Bahrain, Egypt, Jordan, Kuwait, Morocco, Senegal, Sudan, and the United Arab Emiratesform the Saudi-led coalition).

[9] Id.at 4-5.

[10] Id.

[11] Id.

[12] Rep. on the Situation of Human Rights, supranote 8 at 5.

[13] U.N. News, U.N. Agency Chiefs Condemn Saudi-coalition Led Air Strike that Killed Dozens in Western Yemen, U.N. (Aug. 24, 2018), https://news.un.org/en/story/2018/08/1017742.

[14] Rep. on the Situation of Human Rights, supranote 8 at 6.

[15] Rep. on the Situation of Human Rights, supranote 8 at 6.

[16] Why Yemen Matters, supranote 2.

[17] Id.

[18] Rep. on the Situation of Human Rights, supranote 8 at 8.

[19] Selam Gebrekidan & Jonathan Saul, In Blocking Arms to Yemen, Saudi Arabia Squeezes a Starving Population,Reuters(Oct. 11, 2017), https://www.reuters.com/investigates/special-report/yemen-saudi-blockade/.

[20] Why Yemen Matters, supranote 2.

[21] Id.at 14.

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Garza post image

US/Somalia: Allegations of International Law Violations

Garza post imageThe majority of States, including the U.S., are bound by the Geneva Conventions of 1949 which requires member states to treat persons not engaged in hostilities humanely.[1] The convention further prohibits “violence to the life and person [not engaged in hostilities], in particular murder of all kinds, mutilation, cruel treatment and torture.”[2] International Humanitarian Law (IHL) is based on the Geneva Conventions of 1949 and subsequent agreements among states.[3] IHL governs the relations between States during times of conflict with the intention to limit its effects and aims to protect civilians or persons no longer engaged hostilities from harm during times of armed conflict.[4]

In 2011, the United States began launching limited air strikes against “high value targets” in areas of Somalia that were largely controlled by Al-Shabaab, an armed terrorist group associated with Al’Qa’ida.[5] The limited attacks were initially justified by the global war against Al’Qa’ida and then, in 2016, the attacks were justified by operations conducted by the African Union Mission in Somalia, a peace enforcement force authorized by the United Nations and the African Union.[6] The 2013 Presidential Policy Guidance (PPG) provided detailed procedures for counterterrorist actions, including lethal actions against terrorist targets.[7] The PPG only permitted direct action against an “identified high-value terrorist” in “ . . . extra-ordinary circumstances . . . when there [was] near certainty that the individual being targeted [was] in fact the lawful target and located at the place where the action will occur” and direct action would only be takin if “ . . . the action [could] be taken without injuring or killing non-combatants.”[8] The policy was also limited by international legal principles, including State Sovereignty and the “laws of war.”[9] From 2013 to 2016, twenty nine targeted air strikes were reported in Somalia.[10]

In March 2017, the restrictions regarding the use of force against terrorist targets set forth in the 2013 PPG were superseded by an undisclosed directive issued by President Donald Trump.[11] The new directive designates parts of Somalia as “area[s] of active hostility” and “reportedly gives U.S. forces the greatest latitude to carry out strikes as is allowable under the U.S.A.’s interpretation of IHL.”[12] Since the signing of the new directive, the number of air strikes has increased dramatically. Between 2017 and 2018, there were a total of eighty air strikes conducted targeting “areas of active hostility,” Thirty five strikes and forty five strikes respectively.[13] In June 2018, the Department of Defense issued a statement confirming there were zero civilian deaths resulting from military operations in Somalia.[14] The United States African Command (AFRICOM) also continues to deny any civilian deaths as a result of its military operations.[15] When asked about the procedures to avoid civilian deaths and how the organization confirms civilian deaths, AFRICOM refused to comment on their surveillance and intelligence measures.[16] Reporters could only confirm that AFRICOM officials fly over the attacked area to evaluate the damage.[17] Furthermore, the Somali government is unable to investigate civilian causalities because the military lacks the resources to complete these investigations.[18] Somali’s affected by the strikes are also limited in their ability to report injuries or deaths in their communities because of the location of the attacks and security risks.[19]

The lack of transparency from the U.S. executive branch and AFRICOM has led independent organizations to complete private investigations into the damage caused by the ever-increasing air strikes. A recent investigation conducted by Amnesty International revealed a minimum of fourteen civilian deaths and a minimum of eight civilian injuries, which resulted from only five out of the more than 100 airstrikes completed since the beginning of 2017.[20] It is logical to conclude that the death toll and injuries are far greater than reported by Amnesty International because of the increasing number of strikes completed in the past two years. The U.S.’s failure to be transparent in its use of lethal force in Somalia has raised valid accusations of violations of IHL and the Geneva Conventions of 1949. Many human rights groups have urged the U.S. to complete transparent investigations into the credible allegations of civilian casualties resulting from military actions in Somalia.[21] Only when the U.S. government acknowledges the harm they have caused to the civilians of Somalia, can those victims pursue justice for the U.S.’s alleged violations of the Geneva Conventions of 1949 and IHL.[22]

________________________________________________________________________

Brittany Garza is a 2L law student at University of Denver Sturm College of Law and staff editor on the Denver Journal of International Law and Policy.

________________________________________________________________________

[1] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 85, 86.

[2] Id. at 87.

[3] Int’l Comm. of the Red Cross, What is International Humanitarian Law? 1 (2004), https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf.

[4] Id.

[5] Amnesty Int’l, The Hidden U.S. War in Somalia: Civilian Casualties From Air Strikes in Lower Shabelle 6 (2019), https://www.amnesty.org/download/Documents/AFR5299522019ENGLISH.PDF.

[6] Id.

[7] Exec. Office of the President, Procedures For Approving Direct Action Against Terrorist Targets

Located Outside the United States and Areas of Active Hostilities (2013), https://www.justice.gov/oip/foia-library/procedures_for_approving_direct_action_against_terrorist_targets/download.

[8] Id.

[9] Id.

[10] Amanda Sperber, Inside the Secretive US Air Campaign in Somalia, The Nation (Feb. 7, 2019), https://www.thenation.com/article/somalia-secret-air-campaign/.

[11] Amnesty Int’l, supra note 5, at 7.

[12] Id.

[13] Sperber, supra note 10.

[14] Amnesty Int’l, supra note 5, at 7.

[15] USA/Somalia: Shroud of Secrecy Around Civilian Deaths Masks Possible War Crimes, Amnesty Int’l (Mar. 20, 2019), https://www.amnesty.org/en/latest/news/2019/03/usa-somalia-shroud-of-secrecy-around-civilian-deaths-masks-possible-war-crimes/ [hereinafter USA/Somalia].

[16] Sperber, supra note 10.

[17] Id.

[18] Id.

[19] USA/Somalia, supra note 15.

[20] Id.

[21] Amnesty Int’l, supra note 5, at 9; Eyder Peralta, U.S. Airstrikes in Somalia May Amount to War Crimes, Says Rights Group, NPR (Mar. 20, 2019), https://www.npr.org/2019/03/20/705090399/u-s-airstrikes-in-somalia-may-amount-to-war-crimes-says-rights-group.

[22] Id.

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Dr. Llamzon

Spotlight Series: Dr. Aloysius (Louie) Llamzon

Dr. Llamzon

Dr. Llamzon

“Self-awareness is a single most important factor in anybody’s professional life,” says Aloysius (Louie) Llamzon, a senior associate at a world-class law firm, a recognized author, a husband, and a father of two. “Think about it,” he explains, “the ability to be forthright with what you are good at, and then to pursue it wholeheartedly can be very powerful.” He then smiles, “well, perseverance is also important.”

This is a short story of a rising star in the field of international arbitration who ambitiously, yet in a subtle manner navigated towards his dream job against some substantial odds.  It is also about one of his specialties and, conveniently or not, one of the most sensitive and pressing issues in international arbitration today – corruption.

From the Philippines to the Yale Law School to the Permanent Court of Arbitration

Dr. Llamzon was raised in the Philippines, a Southeast Asian country famed for its rich biodiversity and countless natural wonders compiled in more than 7000 islands. While studying law at the Ateneo de Manila University, Dr. Llamzon acquired an appetite for international law. For him, competing in the global  international law moot court competition (the oldest and the largest in the world), the Philip C. Jessup, wasn’t an isolated experience. Instead, Dr. Llamzon took it as a blueprint for his, at that time far fetched, “Plan A” – to become an international arbitration counsel.

In the early 2000s, the Philippines wasn’t the market for international law, nor was a J.D. from the Philippines the key to unlocking the needed doors elsewhere.  Thus, Dr. Llamzon moved to the United States – Yale Law School – to pursue his LL.M. and J.S.D. Even now, he is not reluctant to partially credit luck for getting accepted to a top-tier law school. “Every three years, approximately one student from the Philippines gets accepted to Yale Law School; I know a handful of equally worthy or worthier candidates who did not get in,” says Dr. Llamzon.

At first, the studies at Yale Law School shocked Dr. Llamzon. The U.S. legal education drastically differs from the Philippines’ civil legal system. “In the Philippines, students get rewarded for the meticulous knowledge of the textbook, while in the U.S., students are encouraged to have strong opinions and express them eloquently,” explains Dr. Llamzon.

After law school, Dr. Llamzon became a successful corporate associate at two prestigious law firms: one in Hong Kong and the other in Manila.  Although daily dealings with faceless contracts were quite a distance from his beloved international law, Dr. Llamzon gave it one hundred percent. In fact, he even hoped that maybe, just maybe, one day he would become as passionate about it as he felt about international law. It did not happen. Nevertheless, the quick-paced demanding nature of corporate law prepared him for the next step – a dream job as a legal counsel and then senior legal counsel at the Permanent Court of Arbitration (PCA), the Peace Palace in The Hague. Although the PCA could be described as a birthplace of some of the best international law practitioners, this transition for Dr. Llamzon meant a significant pay cut. He did not hesitate. “I have to admit, I enjoyed the work at the PCA even more than I expected, it was a dream come true,” Llamzon smiles, recalling the variety of the transboundary disputes he worked on that stretch from the Bay of Bengal Maritime Boundary Arbitration to the disputes under the U.N. Convention on the Law of the Sea.

Today, Llamzon is a senior associate at Kings  & Spalding LLP, a powerhouse for international law. His office shares two zip codes: New York City and Washington DC. Dr. Llamzon is all over the place. To simplify his professional story is to admit that sometimes a traffic light goes from green to red without pausing at yellow. And when it happens, “you have to be ready, it is not enough to put everything out there and wait to see what happens,” Llamzon says when asked about the best strategy to land a dream job.

In international Investment Arbitration Corruption is Parked Somewhere In-between the Gray and Hairy Area, – Rest Assured of That

 While conversing with Dr. Llamzon, I couldn’t help it but notice the sense about him of doing something with a real intention. Seems that being brave and successful are synonyms for him. His book “Corruption in International Investment Arbitration” has been the first of its kind. In fact, its success demanded a second edition, on which Dr. Llamzon is currently working, only this time, the topic explores corruption in international commercial arbitration.

His thorough analysis of corruption maintains a resonance that speaks of countries, investors, government officials, counsels, arbitrators, the how it all started, and maybe, what it will look like tomorrow. So where did this interest in corruption in international investment arbitration come from? The answer is simple – his surroundings. Growing up in a developing country, Dr. Llamzon witnessed first-hand the endemic destruction corruption brought to his motherland. Later as a counsel, he was introduced to the pain an attorney may suffer on a daily basis and in a very direct way when working on a case entangled in corruption.  “Some of such cases stayed with me to this day,” admits Dr. Llamzon.

Even so, Dr. Llamzon is interested in corruption because of its unique nature where morality and the rule of law become one- requiring anything but a simple solution. Here, the challenge provides a space for a creative, strategically driven solution. In fact, it is also one of the primary reasons why Dr. Llamzon felt in love with international arbitration in a first place.

Take two contrasting examples. First, suppose that even the strongest on the merits case may be dismissed by the tribunal solely because of a small bribe that an investor paid to a government official at some point of the investment. Second, imagine a case where corruptive practices have been well known in that particular country or region and caused substantial damage, yet there is no sufficient evidence to prove it. Should both cases be treated equally?

Today, in terms of corruption, international investment arbitration tribunals primarily sanction investors. However, for corruption to occur, there have to be two perpetrators: an investor and a public official.  In other words, there has to be proof of government being complicit, in order for the investor to lose the claim and for the same complicit government to win. Does that sound fair?

Although arbitration has a structure to hold parties accountable, the implementation of such decisions is pushed down on the states themselves. Thus, according to Dr. Llamzan, the elephant in the room is a hairy question of whether corruption in international arbitration is approached and treated in the right way.

For instance, there is no unanimous legal definition of corruption in the field of international arbitration. Instead, its definition is primarily built on various examples. Also, there is no single standard for burden of proof. Should there be one? If so, “should it be heightened?” asks Dr. Llamzan.  In short, despite of a significant progress in this area, one thing is clear, in the words of Dr. Llamzon, “every major issue in regards to corruption in international arbitration is unsettled.” Yet, the momentum that has built behind it makes this issue a compelling one to follow. Rest assured, Dr. Llamzon will be in the front row.

To conclude, Dr. Llamzon’s journey towards becoming a leading international arbitration practitioner wasn’t straightforward or easy.  To succeed, he had to learn how to be patient, honest, persistent, and, above all, how to make lasting friendships and professional connections. “Looking back, only now my career starts to make sense, especially those few instances in which I interrupted the natural flow of the events, such as leaving corporate law practice in Hong Kong to pursue international arbitration in The Hague,” says Dr. Llanzon.

At the end of our conversation, I asked Dr. Llamzon: what’s next? This time he paused. “The best part of being an attorney is the audacity to think that one day you are going to be wise enough to be a judge,” Dr. Lamzon said.

_______________________________________________________________________________________________________________________

Giedre Stasiunaite is an alumni of the University of Denver Sturm College of Law and a former DJILP Candidacy Editor. Ms. Stasiunaite now practices law in Washington DC.

_______________________________________________________________________________________________________________________

Posted in DJILP Alumni, Giedre Stasiunaite, Spotlight SeriesComments (0)

Source: Greg Groesch/The Washington Times

Serbia-Kosovo Normalization Discussions Unravel

Source: Greg Groesch/The Washington Times

Source: Greg Groesch/The Washington Times

The relations between Serbia and Kosovo have long been tense. After many years of conflict, Kosovo declared its independence from Serbia in 2008.[1] Since then, Serbia has refused to recognize Kosovo as an independent state.[2] In recent years, however, Kosovo and Serbia have commenced discussions to normalize their relations and come to an agreement.[3] Part of the motivation for this is because a compromise between Kosovo and Serbia is required before either can join the European Union.[4] In September 2018, it appeared that talks were moving forward, as Serbia and Kosovo were considering a border correction.[5] Unfortunately, these discussions have come to a standstill due to tariffs imposed by Kosovo on Serbian imports.

Back in November 2018, Kosovo declared a 10% tariff on all products coming from Serbia and Bosnia-Herzegovina due to “Serbia’s ‘negative behavior’ towards Kosovo”.[6] Shortly after, Kosovo was denied entrance into Interpol.[7] Kosovo believes Serbia actively lobbied to have Kosovo excluded from Interpol, and that Serbia pressured other countries to reverse their recognition of Kosovo.[8] In response, Kosovo increased this tariff to 100%.[9] This massive increase caused Serbia to boycott the normalization discussion with Kosovo until the tariffs are removed.[10]

The European Union has warned Kosovo that the tariff is a clear violation of the Central European Free Trade Agreement (CEFTA), of which Kosovo, Serbia, Bosnia, Albania, Croatia, Macedonia, Montenegro, and Moldova are all parties.[11] The EU declared that Kosovo must “immediately revoke these decisions.”[12] One main objective of CEFTA is to expand trade in the Balkan region by use of fair rules and elimination of trade barriers between the Parties.[13] Unsurprisingly, the tariffs have had a significantly negative effect on trade in the region. In the first month of the increased tariff, imports from Serbia and Bosnia were a total of €290,000, whereas the previous year imports from the two countries were a combined €35 million.[14]

The United States, one of Kosovo’s most powerful allies, has not stayed silent on this tariff. In February, the U.S. issued a letter to Kosovo, pressuring the Prime Minister to remove the tariff.[15] Several U.S. officials stated in a letter to Kosovo’s Prime Minister that “it is incredible that after all we have done together, Kosovo values our friendship so lightly as to ignore our advice.”[16] The diplomats went on to state that the tariff undermines the relationship, not only with Serbia, but with the U.S. as well.[17] These diplomats threatened that until the tariffs are suspended, the U.S. cannot restore the relationship to the “previous robust level.”[18] Kosovo’s Prime Minister responded, requesting understanding from the United States, but refused to remove the tariff until Serbia stops blocking its recognition.[19] There was discussion of suspending the tariff, but for now it remains in place.[20]

Instead, Kosovo has released its conditions for revoking the tariff.[21]  Kosovo demands that negotiations with Serbia be based on “principles of mutual recognition” and requested an E.U.-U.S. backed international conference to be held in order to come to a legally binding agreement with Serbia.[22] Interestingly, Kosovo’s Prime Minister demanded that the U.S. and E.U. reject any proposals for border correction, which had been originally proposed by Kosovo in late 2018, in a potential agreement with Serbia.[23] On Monday, Serbia’s President stated that “although everything seems difficult . . . we are determined to reach a compromise”, but reiterated that it will not negotiate with Kosovo until the tariff is removed.[24]

Regardless of outside pressure, Kosovo refuses to remove its tariff. Until it does, Serbia refuses to resume negotiations. With neither country willing to budge on their stances, it appears that Serbia and Kosovo will continue this stalemate with regard to negotiations. Until Serbia and Kosovo come to a compromise, neither can enter the European Union. Thus, it seems to be in the best interest of both nations to return to negotiating a mutually beneficial agreement.

_____________________________________________________________________________________________________________________

Elise Gordon is a 2L at University of Denver Sturm College of Law and Staff Editor on the Denver Journal of International Law and Policy.

_____________________________________________________________________________________________________________________

[1] Fatos Bytyci, Amid Recognition Row, Kosovo Hits Serbia with More Customs Tariffs, Reuters (Dec. 28, 2018, 9:48 AM), https://www.reuters.com/article/us-kosovo-serbia-tariffs/amid-recognition-row-kosovo-hits-serbia-with-more-customs-tariffs-idUSKCN1OR18Q.

[2] Id.

[3] Maja Zivanovic, Normalising Ties Essential, EU Tells Serbia, Kosovo, BalkanInsight (June 27, 2018), https://balkaninsight.com/2018/06/27/normalisation-between-serbia-and-kosovo-essential-eu-warns-06-27-2018/.

[4] Fatos Bytyci, Kosovo President Says Wants to “Correct” Border with Serbia, Reuters (Aug. 14, 2018, 8:29 AM), https://www.reuters.com/article/us-kosovo-president/kosovo-president-says-wants-to-correct-border-with-serbia-idUSKBN1KZ1O4.

[5] Id.

[6] Die Morina, Kosovo Sets Conditions to Drop Tariffs on Serbian Imports, BalkanInsight (Jan. 29, 2019), https://balkaninsight.com/2019/01/29/kosovo-uses-tariffs-as-bait-for-a-final-agreement-with-serbia-01-29-2019/ [hereinafter Kosovo Sets Conditions]. Die Morina & Maja Zivanovic, Kosovo Imposes Customs Tariff on Serbia, Bosnia, BalkanInsight (Nov. 6, 2018), https://balkaninsight.com/2018/11/06/kosovo-imposes-customs-tariffs-for-serbia-and-bosnia-and-herzegovina-11-06-2018/.

[7] Kosovo Sets Conditions, supra note 3.

[8] Id.; Kosovo Hits Serbia with 100% Trade Tariffs Amid Interpol Row, BBC (Nov. 21, 2018), https://www.bbc.com/news/world-europe-46287975.

[9] Kosovo Hits Serbia with 100% Trade Tariffs Amid Interpol Row, supra note 5.

[10] EU Parliament Calls on Kosovo to Suspend Tax on Serb Goods, The Roanoke Times (Mar. 2, 2019), https://www.roanoke.com/news/politics/wire/eu-parliament-calls-on-k…pend-tax-on-serb/article_b6b5f233-56f8-5f64-83c2-12b02b4cb47e.html.

[11] Statement by the High Representative/Vice-President Federica Mogherin, The Government Decision on Taxing Goods from Serbia and Bosnia and Herzegovina (Nov. 21, 2018).

[12] Id.

[13] Central European Free Trade Agreement, Alb.-Bosn. & Herz.-Croat.-Kos.-Maced.-Mold.-Montenegro-Rom.-Serb., April 6, 2006, http://cefta.int/cefta-parties/.

[14] Fatos Bytyci, supra note 1.

[15] Misha Savic, U.S. Pressures Kosovo over Stalled Talks with Serbia, Bloomberg (Feb. 13, 2019, 1:42 AM), https://www.bloomberg.com/news/articles/2019-02-13/u-s-puts-pressure-on-kosovo-over-stalled-talks-with-serbia.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Kosovo Sets Conditions, supra note 5.

[21] Id.

[22] Id.

[23] Id.; Fatos Bytyci, supra note 3.

[24] Tanjug Beta, “It’s My Duty to Explain to Serbs the Importance of Compromise”, B92 (Mar. 5, 2019, 9:54 AM), https://www.b92.net/eng/news/politics.php?yyyy=2019&mm=03&dd=05&nav_id=106342.

Posted in DJILP Online, DJILP Staff, Elise Gordon, Featured ArticlesComments (0)

Source: BBC World

CITGO: Where Big Business meets National Crisis

Source: BBC World

Source: BBC World

Turmoil in Venezuela has been an ongoing reality for the past several years and one company in particular is now caught in the crosshairs between their own government’s bad behavior and world-wide sanctions and condemnation. Citgo is the U.S. subsidiary of the state owned Petróleos de Venezuela, S.A (PDVSA) in Venezuela, which is wholly owned by Venezuelan President Nicolás Maduro, whose past election was marked by widespread ballot and voter fraud.[1] Citgo is also, “the eighth largest US refiner, with a 750,000-barrel-per-day refining network capable of supplying 4 percent of the country’s fuel through a network of some 5,000 gas stations in 30 states.”[2]

Last month Washington recognized opposition leader Juan Guaidó, the leader of the National Assembly, as the rightful head of state, as opposed to Maduro.[3] The U.S. had found themselves not in ideal company by failing to denounce Maduro. Most countries either support Guaidó or are calling for new fair elections in Venezuela, the only outliers being those with more authoritarian regimes themselves, such as China, Russia, Iran, Syria, Turkey and Cuba.[4] Previously, the U.S. has been taking the route of applying smaller sanctions targeted at government officials and smaller sectors of the economy.[5] Recently, more sweeping regulations finally targeting the oil industry in Venezuela will by far hurt Maduro the most, as Maduro owns most of the oil industry through PDVSA and the petroleum industry makes up more than 90% of the government’s revenues.[6] Furthermore, because the U.S. makes up about 41% of Venezuela’s oil exports, this sanction is substantial enough to hurt Maduro and his government.[7]

However, the U.S. is relatively late to the game in its decision to rebuke Maduro as the rightful president and target the oil industry. This could be because, like many other large corporations, PDVSA tried to win the favor of the Trump administration from the beginning of their tenure. The state-owned oil company gave Donald Trump a $500,000 USD contribution to his inauguration which was made through its Texas-based refinery business, Citgo.[8] The administration’s shift could be caused by the mounting global pressure in response to Maduro’s government’s corruption and civil rights abuses. Maduro has now been deemed by over 50 countries to be the “illegitimate” President of Venezuela[9] and Colombian President Iván Duque recently commented that Maduro was “losing support by the hour.”[10] It is also likely the imprisonment of several Citgo executives, who are U.S. citizens, contributed to the Trump administration’s decision to rebuke and sanction Maduro. For the past several months, six U.S. Citgo executives have been jailed in Venezuela on corruption charges.[11] Their hearings have now been postponed twelve times for no stated reason and the executives feel they are being held merely as political bargaining chips.[12]

Given the quickly-deteriorating relationship between Venezuela and the U.S., Citgo is quickly seeking to cut ties with its imperiled parent company. Citgo has indefinitely stopped payments to PDVSA, subscriptions to corporate services, and email communications and new Citgo board of directors was appointed this month.[13] In response, Maduro later announced he will launch political and legal action in U.S. and international courts to PDVSA’s U.S. subsidiary under its control.[14] Despite Citgo’s push to become a solely U.S. company and avoid oncoming crippling sanctions stemming from its ties to Maduro, Citgo supports Guaidó and may rely on him and the National Assembly for financing.

A $71 million USD interest payment on PDVSA notes will become due in April of 2020.[15] Failure to pay the loan could trigger a creditor rush to seize Citgo.[16] This bond is the only Venezuelan debt yet to default.[17] Previously, Maduro prioritized these debt payments because a 50.1% stake in Citgo Holdings is being held as collateral.[18] Because of the pro-Guaidó change in the board of directors and the disassociation of Citgo from PDVSA, Maduro no longer has an incentive to pay the bond since he’s already lost control of Citgo.[19] Guaidó now seeks to undertake PDVSA’s debt obligation and ensure that it does not default and has proposed working with the U.S. to set up an escrow account to ensure that the April payment and all future payments are made.[20] Even if Citgo successfully escapes PDVSA and Maduro’s grasp, if Guaidó is unable to find a way to meet these obligations, Citgo could be torn apart by a mad rush of creditors and a potential source of stabilizing revenue for Venezuela could vanish.

Citgo’s future is as uncertain as Venezuela’s. However, if Citgo is to become a U.S. company, it could further deprive Venezuela of a major asset capable of helping the nation crawl out of its economic hole.[21] Furthermore, harsh sanctions and even potentially an embargo[22] could have a hard-hitting impact on US markets, as refineries would be forced to purchase oil from more expensive sources.[23] Ultimately it seems the best outcome is for the U.S. government to work with Guaidó in order to keep Citgo from being consumed by its creditors or taken back by Maduro. In turn, this will allow assets to flow back to instead of bleeding out of Venezuela.

_____________________________________________________________________________________________

Morgan Stelli is a Staff Editor for the Denver Journal of  International Law & Policy and a 2L at Denver Sturm College of Law

______________________________________________________________________________ _______________

[1] Kevin Sullivan, ‘Losing Support by the Hour’: Venezuela’s Maduro will be out of Power Soon, Colombian President Says, Wash. Post (Mar. 3, 2019, 6:11 PM), https://www.washingtonpost.com/world/the_americas/losing-support-by-the-hour-venezuelas-maduro-will-be-out-of-power-soon-colombian-president-says/2019/03/03/a00f4608-3cf8-11e9-b10b-f05a22e75865_story.html?utm_term=.67b092969f35.

[2] Marianna Parraga, Citgo Formally Cuts Ties with Venezuela-based Parent Company: Sources, Reuters (Feb. 26, 2018, 12:30 PM), https://www.reuters.com/article/us-venezuela-politics-citgo-idUSKCN1QF2IG.

[3] Daniel Gallas, Venezuela Crisis: Why US Sanctions will Hurt, BBC World (Feb. 2, 2019), https://www.bbc.com/news/world-latin-america-47104508.

[4] US Hits ‘Corrupt’ Venezuela Oil Firm PDVSA with Sanctions, BBC World (Jan. 29, 2019), https://www.bbc.com/news/world-us-canada-47036491.

[5] Gallas, supra note 3.

[6] Id.

[7] US Hits ‘Corrupt’ Venezuela Oil Firm PDVSA with Sanctions, supra note 4.

[8] Venezuela State Oil Company Gave Cash to Trump Inauguration, BBC News (Apr. 20, 2017), https://www.bbc.com/news/world-us-canada-39648675.

[9] Ben Bartenstein, Fabiola Zerpa & Lucia Kassai, Guaido Is Seeking to Make Payment on Citgo-Backed PDVSA Bond, Bloomberg (Feb. 28, 2019, 9:30 AM), https://www.bloomberg.com/news/articles/2019-02-28/guaido-is-said-to-consider-paying-pdvsa-bond-backed-by-citgo.

[10] Sullivan, supra note 1.

[11] Joshua Goodman & John L. Mone, Jailed Citgo Executives in Limbo Amid Venezuela Turmoil, ABC News (Feb. 19, 2019, 4:48 PM), https://abcnews.go.com/International/wireStory/jailed-citgo-executives-limbo-amid-venezuela-turmoil-61157187.

[12] Id.

[13] Parraga, supra note 2.

[14] US Hits ‘Corrupt’ Venezuela Oil Firm PDVSA with Sanctions, BBC World (Jan. 29, 2019), https://www.bbc.com/news/world-us-canada-47036491.

[15] Bartenstein, supra note 9.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Daniel Gallas, Venezuela Crisis: Will the US Target Oil Exports?, BBC World (Jan. 27, 2019), https://www.bbc.com/news/business-47023002 (noting that the Venezuelan economy is “half the size of what it was in 2013).

[22] Id.

[23] Id.

Posted in DJILP Online, DJILP Staff, Featured Articles, Morgan StelliComments (0)

Source: 
Sue-Halpern-America-Continues-to-Ignore-the-Risks-of-Election-Hacking-The-New-Yorker

Election Hacking: Ushering in a New Era of an Age-Old Problem

Introduction

Source:  Sue-Halpern-America-Continues-to-Ignore-the-Risks-of-Election-Hacking-The-New-Yorker

Source: The New Yorker

In an age of perpetual information influx, nobody should be surprised that the technology that captures your attention may be programmed to deceive you. Yet, on the eve of the 2016 U.S. presidential campaign, people were shaken when reports of Russian election interference began to surface. After the highly politicized news settled, it became clear that state-sponsored Russian official’s manipulated American citizen’s access to information through state-funded media, third-party intermediaries, and paid social media users.[1] While it may be humorous to read about “trolls” in official U.S. government documents, the U.S. government notes the dangerous potential for Russians to hack other democratic election.[2] Ultimately, the use of technology-based hacking by the Russian government has forced democratic governments around the world to secure alliances in order to protect against new-age technological warfare that seeks to topple democratic electoral processes. Though condemnation of technology-based hacking is warranted, there are similarities between Russian hacking and the historic tendency of the U.S. to meddle in foreign elections.

1. New Era Problem: Technological Warfare that Strengthen Alliances

Elections all over the world in 2016 and 2017 highlighted, for many governments, that democratic elections are fragile in an era of technological hacking. In the aftermath of the 2016 U.S. presidential election, the Office of the Director of National Security, in partnership with the Central Intelligence Agency (C.I.A.), Federal Bureau of Investigation (F.B.I.), and the National Security Agency (N.S.A.), jointly stated, “we assess Moscow will apply lessons learned from its Putin-ordered campaign aimed at the US presidential election to further influence efforts worldwide, including against US allies and their election processes.”[3] If the direct result of the 2016 U.S. election failed to serve as a warning to other countries about election vulnerability, this blunt statement forced awareness. Early 2018, the U.S. and the U.K. issued a joint statement about malicious cyber activity carried out by the Russian government.[4] While this statement did not directly address technology-based electoral hacking, the inference was clear: protect your elections. The tumultuous terrain of Russian electoral interference has allowed many democratic allies to find mutual ground with the U.S. in a time when many U.S. foreign policies are globally unpopular.

Many allies are finding comradery on this common issue of electoral security in a time when global issues are polarized politically. The relationship between the U.S. and France during the 2017 French elections should be highlighted. President Donald Trump and incumbent President Emmanuel Macron had vastly different political ideologies, to such an extent that President Trump openly endorsed President Macron’s opponent Marine Le Pen. [5] However, underlying security agencies were hard at work, in both countries, to protect against a technology-based electoral hack in France.[6] Admiral Michael Rogers, director of the N.S.A, testified that American intelligence agencies informed their French counterparts of the technology-based hacking in the 2017 French presidential campaign.[7] While France did not necessarily need assistance from the N.S.A. to identify Russian election interference, the gesture indicates a cooperative mentality between two politically polarized countries. Furthermore, the gesture indicates that regardless of political differences between the heads of state, agencies are cooperating on a global scale to help protect against the impeding security threat of technology-based electoral hacking.

In another instance, Dutch operatives informed the United States of several individuals responsible for election hacking in the 2016 United States election.[8] The Dutch obtained the identity of these individuals through counter-espionage efforts throughout 2014 and 2015; these efforts included penetrating Russian Closed Circuit Television (CTTV) footage and identifying specific individuals and their affiliates.[9] It is rumored that, as a result of U.S. gratitude for Dutch cooperation, American spies sent cake and flowers to the Dutch General Intelligence and Security Service.[10] The Dutch government likely ran these counter-espionage efforts in an attempt to shore up their technology to help ensure electoral security for its 2017 elections.[11] Upon learning that the Dutch were sharing intel with the U.S., President Putin’s spokesperson, Dmitry Peskov, attempted to discredit Dutch intelligence by stating that the Dutch were simply, “fueling anti-Russian hysteria in the United States”.[12] The free-flow of information between the Dutch government and U.S. security agencies bolsters this historical alliance as both countries depending on a fair and open election system. Intel sharing at the administrative level is crucial to providing fair democratic elections. While Russian meddling has deteriorated many relationships between the East and West, historical alliances seem to be strengthened through uniting against the common enemy: technology-based Russian electoral interference.

Many countries saw the impact of Russian interference in France and the U.S. and braced themselves for an attack.[13] In fact, the threat of Russian meddling in the 2017 German parliamentary elections became such an apparent threat that task forces were set up to watch for any signs of disruption. Germans waited for bots and internet “trolls” that never appeared.[14] When no attack became apparent in the 2017 German election, director of the Digital Society Institute in Berlin noted that, “it makes absolutely no sense to conduct cyber-ops because everyone is waiting for it”.[15] The waiting game exemplified how international awareness can reduce the prevalence of Russian electoral interference, ultimately bolstering international relationships between democratic allies by ensuring a truly democratic electoral process.

Looking forward to decisive elections, like the 2019 Canadian parliament elections, it is clear that the world is watching. Canada, a likely target of technology-based electoral interference due to its prominence world-wide and strained ties with Russia over the Arctic Circle, does not have to worry about ballots being hijacked due to their paper ballot system.[16] However, Canada should still expect Russian involvement.[17] The Canadian Communications Security Establishment identified three ways in which Canada is still vulnerable to Russian cyber threats: online voter registration, online voting record-keeping, and media-based election coverage.[18] As a result, Canada plans to launch a policy-driven effort to prevent election hacking.[19] The United States has tried to assist Canada’s efforts in cyber-security by sharing information on identified threats, including telecommunication companies, like Huawei, a Chinese-based company.[20] This bilateral effort to protect democratic elections indicates a willingness to set aside political differences to ensure electoral fairness, a bright side in a new-era of technology-based electoral hacking.

2. Age-Old Problem: United States Historical Monetary Influence in Foreign Elections

While the Russian’s technology-based election meddling has received immense criticism over its successes in 2016, the U.S. is not blameless in foreign election meddling.[21] Loch Johnson, former staff member at the C.I.A., notes that the U.S. has been historically involved in influencing foreign elections,[22] “We’ve [U.S.] used posters, pamphlets, mailers, banners ­­–– you name it. We’ve planted false information in foreign newspapers.”[23] Between 1946-2000, the U.S. attempted to alter elections twice as much as Russia or the Soviet Union.[24] In one prominent example, the U.S. interfered with the 1996 Russian election. Incumbent Russian President, Boris Yeltsin, who was friendly with the Clinton administration, had roughly 8% support among Russian citizens at the beginning of his campaign, before a massive influx of American-lobbied money though the International Monetary Fund (IMF).[25] Not only did the influx of American dollars buy Russian media coverage, but it likely contributed to wide-spread voter bribery stemming from the Yeltsin campaign.[26] Ultimately, President Yeltsin’s approval ratings skyrocketed to 54.4% among his constituents, largely due to U.S. election meddling.[27]

The U.S. has attempted to justify its extensive use of hacking through an idealistic lens, claiming it interfered as a way to promote candidates that would, in turn, promote democracy.[28] Historically, U.S. national security superseded its interests in promoting democracy world-wide;[29] however, in the days since the Cold War, some scholars believe that the U.S. promotes democracy as a means to national security.[30] One could argue that the existence of a democratic nation increases world stability and therefore security for the U.S.. However, it is more likely that the U.S. interferes in foreign elections because the U.S. backed candidates are friendly with the current U.S. presidential administration or provide a minimal threat to U.S. dominance world-wide.

The primary difference between the 1996 and 2016 campaign meddling between Russia and the U.S. is the means used to influencing the elections. The United States used money, the most simplistic way to meddle in an election, to influence the 1996 Russian campaign.[31] On the other hand, in 2016 U.S. elections, Russia began a new era of technology-based hacking to destabilize democracy.[32]

Conclusion

While election hacking is an age-old problem, the availability and accessibility of technology to influence elections ushers in a new-era that must be tackled if democratic nations continue to demand fair and open elections. The problem then becomes: how should a democratic government defend itself against foreign election hacking? When many countries have laws against accepting foreign campaign donations, and pamphlets are not the primary mode for spreading false information, the most prominent form of electoral influence is now technology-based attacks.

In conclusion, Russian interference through technology-based hacking has forced democratic governments around the world to shore up alliances in order to protect elections. An unintended consequence of Russian interference became the increased communications between democratic nations seeking to protect its elections. And while many nations are preparing to secure technology in its elections, the globalized knowledge of the Russian cyber-attacks decreases the likelihood that the same type of attacks will occur again. However, cyber-attacks are not the only type of election “hacking” that takes place. The U.S. has a rich history of “hacking” foreign elections though non-technological means. Even though there are different ideologies to justify election interference, ultimately the U.S. and Russia are both answerable to a similar transgression: influencing foreign elections.

_____________________________________________________________________________________________________________

Grace Osberg is the Acting Managing Editor of the Denver Journal of International Law & Policy and a 2L at the Denver Sturm College of Law

_____________________________________________________________________________________________________________

[1] Office of the Dir. of Nat’l Intelligence, Background to “Assessing Russian Activities and Intentions in Recent US Elections”: The Analytic Process and Cyber Incident Attribution 1, 2 (2018), https://www.dni.gov/files/documents/ICA_2017_01.pdf.

[2]  Id. at 5.

[3] Id.

[4]  Nat’l Cyber Sec. Ctr., Advisory: Russian State-Sponsored Cyber Actors Targeting Network Infrastructure Devices (2018).

[5] Ben Jacobs, Donald Trump: Marine Le Pen is ‘Strongest Candidate’ in French Election, The Guardian (Apr. 21, 2017, 4:26 PM), https://www.theguardian.com/us-news/2017/apr/21/donald-trump-marine-le-pen-french-presidential-election.

[6] Adam Nossiter et. al., Hackers Came, but the French Were Prepared, N.Y. Times (May 9, 2017), https://www.nytimes.com/2017/05/09/world/europe/hackers-came-but-the-french-were-prepared.html.

[7] Id.

[8] Nick Allen, Dutch Spies ‘Caught Russian Election Hackers on Camera’, The Telegraph (Jan. 26, 2018, 5:36 PM), https://www.telegraph.co.uk/news/2018/01/26/dutch-spies-caught-russian-election-hackers-camera/.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Michael Schwirtz, German Election Mystery: Why No Russian Meddling?, N.Y. Times (Sept. 21, 2017), https://www.nytimes.com/2017/09/21/world/europe/german-election-russia.html.

[14] Id.

[15] Id.

[16] Mike Blanchfield, NATO Expert Warns of Russian Meddling in Canada’s 2019 Election: ‘Democracy is in Trouble’, Global News (Feb. 27, 2018, 10:01 AM), https://globalnews.ca/news/4049792/canada-2019-election-russia-meddling-nato/.

[17] Id.

[18] Commc’n Sec. Establishment, Cyber Threats to Canada’s Democratic Process (2017).

[19] Amanda Coletta, Canada Proposes Sweeping Law to Block Foreign Interference in Elections, Wash. Post (May 5, 2018), https://www.washingtonpost.com/world/the_americas/ (search “Canada Proposes Sweeping Law to Block Foreign Interference in Elections” hyperlink).

[ 20]  Ribert Fife & Steven Chase, Former top Canadian security officials warn Ottawa to sever links with China’s Huawei, The Globe and Mail (Mar. 19, 2018), https://www.theglobeandmail.com/politics/article-former-top-canadian-security-officials-join-call-for-ottawa-to-nix/.

[21] Erwin Chemerinksy, False Speech and the First Amendment, 71 Okla. L. Rev 1, 11 (2018).

[22] Scott Shane, Russia Isn’t the Only One Meddling in Elections. We Do It, Too.  (Feb. 17, 2018).

[23] Id.

[24] All Things Considered: Database Tracks History of U.S. Meddling In Foreign Elections, National Public Radio (Dec. 22, 2016).

[25] Markar Melkonian, US Meddling in 1996 Russian Elections in Support of Boris Yeltsin, Global Research (Nov. 11, 2017), https://www.globalresearch.ca/us-meddling-in-1996-russian-elections-in-support-of-boris-yeltsin/5568288.

[26] Id.

[27] Id.

[28] Peter Beinart, The U.S. Needs to Face Up to Its Long History of Election Meddling, The Atlantic (Jul. 22, 2018), https://www.theatlantic.com/politics/archive/2018/07/the-us-has-a-long-history-of-election-meddling/565538/.

[29] Id.

[30] Id.

[31] Id.

[32] Office of the Dir. of Nat’l Intelligence, Background to “Assessing Russian Activities and Intentions in Recent US Elections”: The Analytic Process and Cyber Incident Attribution 1, 2 (2018) https://www.dni.gov/files/documents/ICA_2017_01.pdf.

Posted in DJILP Online, DJILP Staff, Featured Articles, Grace OsbergComments (0)

Source: The Washington Post

Duty to Repatriate: The Case of Foreign Combatants in Kurdish Prisons

I. Introduction

Source: The Washington Post

Source: The Washington Post

The Kurdish militias in Northern Syria have taken hundreds of foreign detainees over the course of their recent offensive against the Islamic State in Iraq and the Levant (ISIL).[1]  The Kurdish position is that their home countries should repatriate them, but few countries have consented to do so.[2] The situation of the detainees falls within the minimal protections provided by Common Article 3 of the Geneva Conventions for conflicts that are not of an international character.[3]  Many of the countries with citizens detained by the Kurds are signatories to Protocol II of the Geneva Conventions which sought to further clarify detention for non-international conflicts, however the protocol specifies no previsions for repatriation at the conclusion of hostilities other than to note the captors have an obligation to ensure the safety of the detained upon release.[4]  Between 2007 and 2012, representatives from twenty four countries and several multinational organizations made a considerable effort to reach consensus on applicable international legal regimes in modern conflict and to agree on principles, rules, and standards for treatment of detainees.[5]  This effort culminated in the release of The Copenhagen Process Principle and Guidelines on Detention; however, this framework is inadequate to address what ought to happen to non-state enemy detainees who are being held by a non-state actor like the Kurds.[6] The detainees pose a unique legal challenge for all parties involved.  It is a situation that is largely without precedent and it has no clear solutions.  This article will explore the options and obligations of the international community in bringing these individuals to justice.

II, Background

The Yekîneyên Parastina Gel (YPG), or People’s Protection Units are a Kurdish militia in Northern Syria. They have been key partners to the United States in the war against ISIL in Syria.  From the onset of the U.S. intervention at the Seige of Kobani in 2015, the YPG have proven to be a capable ground force and reliable partner.  The YPG have attracted support from the U.S., French, and British militaries.[7],[8] This has generated substantial tension within NATO as Turkey claims that the YPG is a terrorist group and subordinate to the Kurdistan Workers Party (PKK).[9]

On November 6th, the YPG announced their operation to isolate the ISIL’s de facto capital of Raqqa, Syria.[10]  By June 6th, 2017, the YPG had successfully seized Tabqah City the strategic Tabqah Dam, and they had encircled Raqqa City.[11]  By October 20th, the city had fallen.[12]  Over the course of the operations, the YPG imprisoned dozens of ISIL combatants on a daily basis.[13]  The United States intelligence community estimated that as many as 40,000 foreign recruits traveled to Iraq and Syria to join ISIL.  Facing military defeat, many of these foreign fighters attempted to exit the crumbling caliphate the same way they arrived, by crossing the Turkish border.  A large number of these individuals were detained by the YPG as the attempted to cross Kurdish lines north of the Euphrates.

As of July of 2018, the YPG held 593 men from forty seven different countries in detention facilities in Northern Syria.[14]  Roughly eighty were from Europe, with ten to fifteen from France and Germany.[15]  These individuals present a unique problem for the Kurds as they attempt to negotiate their status in a future unified Syria.  The detainees are a major logistical challenge and a resource drain on a minimally equipped militia.  The detainees pose a major security risk. Additionally, historically detention facilities tend to further radicalize extremist inmates,[16]  which poses a major strategic liability.  Turkey has gone to great lengths to portray the YPG as human rights abusers.  The longer these detainees are held, the more likely outside observers are to agree.

III. Options for the Kurds

A. Transfer, Expulsion, or Repatriation

Following the surprise announcement of a full United States withdrawal, the Kurds have hinted that their most likely course of action will be a transfer to the Syrian regime.  This option is not palatable given the Assad regime’s history of grave human rights abuses.[17]  The Kurds are aware the poor optics this option would create with their western benefactors; however, the impending U.S. troop withdrawal leaves them with few options.  One option is to expel the detainees across the border into Turkey.  This is not a viable option because it is quite possible the Kurds would end up meeting these individuals again on the battlefield as members of Turkish support militias, which are in direct conflict with the YPG in Afrin Canton.  Given their lack of both resources and options, the Kurds have requested that the detainees’ home nations repatriate their citizens.  Thus far, few countries have honored their request.

IV. Options for International Community

A. International Criminal Court (ICC)

The crimes perpetrated by the ISIL, namely torture, genocide, use of child soldiers, and sexual slavery, fall squarely within the subject matter jurisdiction of the International Criminal Court (ICC).[18] The international community is unable to try their crimes in the ICC because the court lacks territorial jurisdiction of both Iraq and Syria, neither of whom are signatories to the Rome Accord.[19]  It is possible for the U.N. Security Council to designate the conflict within the ICC’s jurisdiction but the court has interpreted referrals of “situations” within the context of the Rome Statute as pertaining to specific conflicts, not specific organizations.[20]  For example, the ICC rejected an organization-based designation and favored territorial jurisdiction over all actors in Uganda when Uganda referred their conflict with the Lord’s Resistance Army to the ICC in 2002.[21]  This means Russia would likely veto any effort to refer the conflict to ICC jurisdiction since it would expose Russia’s ally, Bashar al-Assad, to ICC prosecution.

B. Independent Criminal Tribunals

Another option to bring these individuals to justice is for the U.N. Security Council to establish a tribunal with specific jurisdiction over ISIL fighters.  There is precedent for this, such as the International Criminal Tribunal for Former Yugoslavia, Special Tribunal for Lebanon, and the International Criminal Tribunal for Rwanda.[22]  This option is the most appealing from an ideological standpoint given the chaos that reigns in Syria; however, from a logistical standpoint these tribunals have been extremely costly, have never tried people on the scale that this situation would necessitate, and have not yielded a particularly high conviction rate.[23]  This option may also be counter-productive in countering ISIL’s strategic narrative, since it would likely be perceived as granting victor’s justice and would functionally immunize Bashar al-Assad and his military from prosecution.

V. Options for Detainees’ Home Nations

The detainees’ home nations also have poor options to deal with the detainees.  They can elect to repatriate their citizens or leave them in the indefinite detention of the Kurds.  Repatriating their citizens gives rise to two basic courses of action.  Either the individuals can be tried in the court system of the receiving country, or the home nations can attempt to de-radicalize and reintegrate the individuals.  Both options come with substantial risks.

A. Trial in the Criminal Justice System

The evidence gathered by the Kurds is unlikely to meet the standards of a modern court system.  A few higher profile detainees have video evidence of their criminality through ISIL propaganda, but they are exceptions to the rule.[24]  Witness testimony and electronic records provide hope for prosecution but successful prosecution is by no means normally a sure bet.  The United States is an outlier in this regard.  The Department of Justice has extensively prepared for ISIL fighters to return to U.S. custody by meticulously tracking individuals known to have traveled to Syria to support ISIL.  Known terrorists have prosecutable cases developed so that in the event they return to U.S. custody, the Department of Justice (DOJ) will be able to try them in a civilian court.[25]  This model is resource intensive but could be viable for other nations, particularly those with a military or intelligence presence in Syria.

This approach is not without its challenges.  The United States encountered this reality when the U.S. military accepted custody of an American citizen who was previously unknown to the DOJ and who had been detained by the YPG. Ultimately the DOJ decided they lacked sufficient evidence to secure a conviction in a U.S. court.  Rather than return him to the U.S. and risk release, the DOJ and DOD planned to release him back into the Syrian desert (from whence he came) with his personal effects.[26],[27]  It is unclear what this individual’s ultimate fate was, but the possibility of this novel outcome illustrates the dearth of good options nations have to bring these individuals to justice.

B. Reintegration

The other option the detainees’ home nations have is to repatriate their citizens and attempt to deradicalize and reintegrate them.  NATO countries have experimented with this option with varying degrees of success.[28]  While Europe is likely more amendable to this solution than the United States, these programs can offend a sense of justice given the magnitude of ISIL’s crimes and risk provoking counterproductive xenophobic rhetoric.  Given the magnitude of ISIL’s crimes, few want to see these individuals return to society.  Since the bulk of ISIL-aligned terrorists conducting operations outside of Iraq and Syria are citizens of the nations in which they conduct attacks, there is a perception that this option carries substantial security risks.

VI. The Case for Repatriation

The most expedient option for these countries is to reject the YPG overtures to return their citizens and leave them in YPG custody.  Thus far, the detainees’ home nations have largely elected to minimize the risk these individuals pose to society by leaving them in Syria.[29]  The of legal obligation to repatriate these individuals allows these nations to argue that they are not culpable in their citizens’ treatment or detention.  Governments are insulated from the level scrutiny they would face if they detained these individuals without due process on their own soil.  Ultimately rejecting the YPG’s request to repatriate these individuals is shortsighted.  Leaving these detainees to the shifting winds of the civil war in Syria will be viewed as a betrayal of Western ideals.  The decision not to repatriate the detainees has ramifications far beyond overburdening a reliably ally in the fight against the Islamic State.  Most importantly, this course of action will reinforce the ISIL narrative that western powers are rife with hypocrisy, and that Muslims do not enjoy equal protection or status in within civil society.[30]  While ISIL has brought some elements of statehood into its brand of Islamic militancy, it is still grounded in the idea that faith transcends the Westphalian concept of state sovereignty.[31]  Deliberately excluding ISIL adherents from the traditional conception of the state validates the ideological foundations upon which ISIL was founded.  Conversely, returning the detainees to their home jurisdiction for criminal prosecution demonstrates to radicalized individuals that despite their beliefs and their best efforts, they do not and cannot exist outside political and social norms.  

VII. The Way Forward

The long-term solution is for the international community to adopt a law of armed conflict that recognizes the modern realities of non-state actors and intrastate conflicts.  Unfortunately, this is unlikely to come to pass in the foreseeable future.  Russia, Iran, and the United States have all extensively exploited gaps left by the current laws of armed conflict within the Syrian Civil War through the use of non-state proxies.  Russia’s use of proxy forces in both Ukraine and Syria, and their use of information operations targeting U.S. elections would likely push the United States in favor of supporting a more comprehensive approach to the law of war which encompasses non-state actors, state sponsor of proxies, and other unconventional means of warfare.  Developing and implementing such a framework with broad international adoption is unlikely while the conflicts continue in Ukraine, Yemen, and Syria.

In the near-term, the home nations of these detainees have a moral obligation to repatriate their citizens.  Leaving these individuals to the Kurds places an unreasonable burden on a reliable partner and validates key aspects of ISIL’s messaging.  Nations can hide behind the reality that they have no legal obligation to repatriate these detainees, but the fact that indefinite detention is legally outsourced makes it no less objectionable.

The United States, having experienced the strategic blowback from its history of extrajudicial detention, is one of the few countries that views foreign detainees as a pressing concern.  The federal government is faced with poor options to cope with the foreign detainees absent home nations that are willing to repatriate them.  There were indications the Department of Defense attempted to negotiate a transfer of the bulk of the detainees to Iraqi custody.[32]  The Shia-aligned Iraqi government has it’s own substantial image problems among Sunni Arabs due to their history of torture, extrajudicial killings, and force displacement of Sunni enclaves.[33]  This course of action is not much better than leaving the detainees with the Kurds given the government of Iraq’s history of human rights abuses, but transferring custody to a nation-state actor is a small step towards legitimacy and it leaves the door open for extradition proceedings for the detained individuals.  Ultimately, given the timetable for U.S. withdrawal, the Kurds will likely transfer the detainees to the Assad regime and be forced to cede their relative moral high ground in their treatment of detained individuals over the course of the conflict.

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David Young is a 1L at the DU Sturm College of Law and a DJILP Staff Editor

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[1] Charlie Savage, Fighters Fill Syrian Jails, Nations Fear They’ll Come Home, N.Y. Times, July 18, 2018, at A1.

[2] Id.

[3] Geneva Convention Relative to the Treatment of Prisoners of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.

[4] Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609.

[5] Thomas Winkler, Copenhagen Process and the Copenhagen Process Principles and Guidelines on the Handling of Detainees in International Military Operations: Challenges, Criticism and the Way Ahead, 5 J. Int’l Human. Legal Stud. 258, 288 (2014).

[6] Id.

[7] Commons Select Committee on Foreign Affairs, Kurdish Aspirations and the Interests of the U.K. (Feb. 9, 2018), https://publications.parliament.uk/pa/cm201719/cmselect/cmfaff/518/51808.htm.

[8] John Irish & Marine Pennetier, France’s Macron vows support for Northern Syrians, Kurdish militia, Reuters (Mar. 29, 2018), https://www.reuters.com/article/us-mideast-crisis-syria-france/frances-macron-vows-support-for-northern-syrians-kurdish-militia-idUSKBN1H52V1.

[9] John Irish, Turkey or Kurdish YPG militia? Pick a side, Turkish minister tells France, Reuters (Apr. 5, 2018), https://www.reuters.com/article/us-turkey-france-syria/turkey-or-kurdish-ypg-militia-pick-a-side-turkish-minister-tells-france-idUSKCN1HC29Q.

[10] Rodi Said, U.S.-backed Syrian alliance declares attack on Islamic State in Raqqa, Reuters (Nov. 6, 2016), https://www.reuters.com/article/us-mideast-crisis-syria-raqqa-idUSKBN1310GX.

[11] Ellen Francis, U.S.-backed Syria militias say Tabqa, dam captured from Islamic State, Reuters (May 10, 2017), https://www.reuters.com/article/us-mideast-crisis-syria-tabqa-idUSKBN1862E4.

[12] Tom Perry, Raqqa to be part of ‘federal Syria’, U.S.-backed militia says, Reuters (Oct. 20, 2017), https://www.reuters.com/article/us-mideast-crisis-syria-raqqa/raqqa-to-be-part-of-federal-syria-u-s-backed-militia-says-idUSKBN1CP16T.

[13] Savage, supra note 1.

[14] Id.

[15] Id.

[16] Eric Schmidt, Defeated in Syria, ISIS Fighters Held in Camps Pose Security Risks, N.Y. Times, Jan. 24, 2018 at A1.

[17] See Tamara Qiblawi & Gul Tuysuz, Syria reveals fate of people thrown into ‘slaughterhouse’ jails, CNN (Aug. 30, 2018), https://www.cnn.com/2018/08/30/middleeast/syria-prisons-death-notices-intl/index.html.

[18] Int’l Crim. Ct. [ICC], Understanding the International Criminal Court, at 13, https://www.icc-cpi.int/iccdocs/pids/publications/uicceng.pdf.

[19] Int’l Crim. Ct. [ICC], States Party to the Rome Statute, https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx.

[20] ICC supra note 18, at 4.

[21] Situation in Uganda, ICC-02/04, Jurisdiction, (July, 2004).

[22] ICC supra note 18, at 3.

[23] Stephen Schemenauer, Using the Rule of Law to Combat the Islamic State 11, (U.S. Army War College, 2016).

[24] See Adam Goldman & Eric Schmitt, Last 2 of ISIS’ Infamous British Fighters Are Captured by Syrian Kurds, N.Y. Times, Feb. 8, 2018, at A8.

[25] Greg Myre, Americans In ISIS: Some 300 Tried To Join, 12 Have Returned To U.S., NPR (Feb. 5, 2018), https://www.npr.org/sections/parallels/2018/02/05/583407221/americans-in-isis-some-300-tried-to-join-12-have-returned-to-u-s.

[26] Lisa Rose, The US wants to leave this American in Syria with $4,210 and no passport, CNN (June 22, 2018), https://www.cnn.com/2018/06/22/politics/john-doe-syria-isis-passport/index.html.

[27] Resp’t’s Notice Pursuant to the Ct.’s Jan. 23, 2018 Order, Doe v. Mattis, No. 17-cv-2069 (D.D.C. Apr. 17, 2018).

[28] Int’l Centere for Counter-Terrorism – The Hague, Radicalisation, De-Radicalisation, Counter-Radicalisation: A Conceptual Discussion and Literature Review (Mar. 2013), https://www.icct.nl/download/file/ICCT-Schmid-Radicalisation-De-Radicalisation-Counter-Radicalisation-March-2013.pdf.

[29] Savage supra note 1.

[30] Faisal Devji, A life on the surface, Hurst (Sep. 21, 2015), https://www.hurstpublishers.com/a-life-on-the-surface/.

[31] Faisal Devji, ISIS: Haunted by Sovereignty, Spiked Review (Dec. 2015), http://www.spiked-online.com/spiked-review/article/isis-haunted-by-sovereignty/17680#.W4sK65MzrBJ.

[32] Courtney Cube et al., Trump admin may send captured ISIS fighters to Iraq prison, Guantanamo, NBC (Aug. 30, 2018), https://www.nbcnews.com/storyline/isis-terror/trump-admin-may-send-captured-isis-fighters-iraq-prison-guantanamo-n905066.

[33] U.S. State Dep’t, Iraq 2017 Human Rights Report (2017), https://www.state.gov/documents/organization/277487.pdf.

Posted in David Young, DJILP Online, DJILP Staff, Featured ArticlesComments (0)

Source:  www.tagesschau.de

Germany’s Illegal Arms Trade

Germany is one of the world’s foremost manufacturers for weapons of war such as battle tanks, artillery, ammunition, and hand guns. Although this sector of the German economy has been kept quiet since World War II, recent arms trade deals have given rise to attention to particular weapons manufacturers such as Rheinmetall AG, as well as the German government’s conduct in supporting Rheinmetall’s and the inter-governmental disregard of international law.

Source:  www.tagesschau.de

Source: www.tagesschau.de

RHEINMETALL’S DISOBEDIENCE OF GERMAN AND INTERNATIONAL LAW

Over the last three years, the Rheinmetall AG stock has increased by approximately 180%, almost 80% in 2017 alone[1]. This is, of course, to the satisfaction of CEO Armin Papperger and all stockholders and investors. What should not be satisfactory, and a fact that is often swept under the carpet, is that all these investors profit off of complex weapons trade loopholes, which ultimately kill innocent civilians in war zones without any accountability.

For decades, the German government steered clear from promoting their arms manufacturers abroad. This has now changed, to the joy of the arms industry, and the largest purchasers of German weapons, the United States, the United Arab Emirates, and Great Britain. Saudi Arabia is also among the top purchasers of weapons and military equipment from Germany, including purchases of missiles, machine guns, munitions and artillery.[2] The Düsseldorf company Rheinmetall, and the Munich company Krauss Maffai Wegemann (KMW) are some of the largest war-weapons manufacturers in the world, KMW known best for its “Leopard” and “Gepard” tanks.[3]

Rheinmetall Defence, a branch of the Rheinmetall AG, markets itself as a technology group and the market leader in areas of “environmentally friendly mobility and threat-appropriate security technology.”[4] The Defence Group is a supplier of Military technology, partnering with the armed forces, and distributing weapons, equipment, and technology around the world[5]. About a decade ago, Rheinmetall supplied mostly the German forces, but today, approximately 70% of their products are sold to foreign countries.[6] Germany is the third largest weapons supplier in the world, behind the United States and Russia, and ahead of France and Great Britain. Generally, “almost one-tenth of all the money generated by global weapons exports end up in the pockets of the German defense industry.”[7]

The problem with this growing sector of the economy is that the United Nations, the European Union, as well as the German government impose strict regulations on the export of weapons of war. Regulations for arms exports are found in the German War Weapons Control Act (KWKG)[8] and the Foreign Trade and Payments Act (AWG)[9], which clearly state that weapons exports must mandatorily be approved of by the government and must be granted a license of production.

According to the War Weapons Control Act (KWKG)[10], companies and individuals need a license for every kind of domestic and foreign weapons transaction. The German government has been reluctant to grant a license to Rheinmetall for the manufacturing and export of military equipment to Turkey. Even though Turkey is a NATO ally, Turkey has been using the cover of fighting ISIS to destroy Kurdish strongholds in Syria. Now the Turkish government is pressuring Germany into this weapons deal, by bringing to the table the chance of releasing German journalists imprisoned in Turkey.[11]

But there are loopholes for German manufacturers, to be able to export weapons of war to war zones, as well as to countries which are prohibited to export to under German, and European law. Through international collaborations, which redirect the manufacturing deals through other countries with more liberal export regulations, German companies do not have to get the government’s blessing to export.[12] Rheinmetall for example, has subsidiaries all over the world. One case showing this is the weapons export to Libya during the political uprisings and the Arab Spring. The military transportation Gadhafi’s troops were using at the frontlines, were produced by Mercedes-Benz, as well as his “Milan 3” anti-tank missiles, which were produced in Bavaria, and exported from German companies without licenses from the government. On the other side of the conflict, the Libyan rebel forces used the exact same “Milan 3” anti-tank missiles, which Germany had sold to Qatar, and Qatar supplied the rebels with.[13] Under the KWKG, Germany was not allowed to export weapons to Libya at that time, as it was not clear to the German government at the time, that the weapons would not be used to kill civilians. In addition to that, there were, and still are, trade embargoes in place under European Union and United Nations law, to not export any goods to Libya.[14]

THE GERMAN GOVERNMENT’S DISOBEDIENCE OF INTERNATIONAL LAW

Chancellor Merkel points out that Germany’s foreign policy is committed to values of human rights and democracy, and yet, she allows weapons of war to be exported to unstable regions and regimes whose human rights records have been more than questionable.[15] Israel is a great example here, because Germany will allow any kind of weapons export to Israel, no matter the underlying issues.[16] During uprisings between the Palestinians and the Israelis, the German government publicly condemned the war and the human rights violations, making a stand for the two-state solution and sustainable peace negotiations, but secretly and hypocritically permitted continuous weapons of war exports to Israel.[17]

Weapons exports to countries like Saudi Arabia are highly criticized as well, because diplomats cannot truly assess the stability of the situation in the Middle East. This was a great concern during the Arab Spring, and has remained so for most countries in the Middle East. The concern is that tanks and other weapons could fall into the hands of anti-Western movements, as happened with American weapons during the Iranian Revolution.[18] But despite concerns about weapons falling into the hands of anti-Westerners and corrupt regimes, and despite proof that Middle Eastern governments have been funneling weapons to terrorist organizations like Al-Qaeda or ISIS, KMW, the manufacturer of the “Leopard 2” tank, continues to sell these tanks to the Royal Government of Saudi Arabia.[19]

ANALYSIS

The actions the German government continues to take, regarding weapons exports to unstable regions and regimes, or allowing German companies to export entire manufacturing plants to surpass German and United Nations law, violates various international treaties, embargoes, and the expected moral high ground of a country otherwise known to take humanitarian stands on international crises.

Germany’s actions violate the United Nations Arms Trade Treaty which was put in place under Article 26 of the Charter of the United Nations, seeking and promoting “the establishment and maintenance of international peace and security . . . ” and underlines “ . . . the need to prevent and eradicate the illicit trade in conventional arms and to prevent their diversion to the illicit market, or for unauthorized end use and end users, including in the commission of terrorist acts.”[20] Germany is a ratifying party to this treaty and therefore, acknowledges under the treaty, that “peace and security, development and human rights are pillars of the United Nations system and foundations for collective security and recognizing that development, peace and security and human rights are interlinked and mutually reinforcing.”[21] When performing and allowing weapons exports to unstable regions, it is also to bear in mind, that “civilians, particularly women and children, account for the vast majority of those adversely affected by armed conflict and armed violence.”[22]

One principle of the Arms Trade Treaty is “The responsibility of all States… to effectively regulate the international trade in conventional arms, and to prevent their diversion, as well as the primary responsibility of all States in establishing and implementing their respective control systems.”[23] Germany has these systems in place, as the KWKG shows, but the government does not seem to utilize them. The government watches Rheinmetall build up subsidiaries around the world, so that they can functionally deliver weapons to Iran, Iraq, and other unstable countries. Furthermore, the government allows exports to Saudi Arabia, while knowingly accepting that the Kingdom funnels weapons to terrorist organizations.[24]

The purpose of the United Nations Arms Trade Treaty is to “prevent and eradicate the illicit trade in conventional arms and prevent their diversion.”[25] This applies to battle tanks, armored combat vehicles, combat aircrafts, attack helicopters, warships, missiles and missile launchers, small arms and light weapons, and many more.[26] Germany violates Article 2 in various ways, by exporting missiles, submarines, and tanks to regions of war around the world, especially in the Middle East.

Article 4 tells ratifying parties to establish and maintain a control system for the production and export of individual parts and components, when the export provides the capability to assemble the weapons independently.[27] Germany did not do this, in the case of Rheinmetall, where the German government ignored the fact that Rheinmetall built up entire manufacturing factories as subsidiaries to the German company in Italy, South Africa, and the United Arab Emirates, in order to surpass German regulations.

Rheinmetall Denel Munition (RDM) is one subsidiary company of Rheinmetall Waffe Munition GmbH in South Africa. RDM specializes in development, design, and manufacturing of ammunition, artillery, and infantry systems, which are then exported to countries which Rheinmetall in Germany is not legally able to expand to,[28] as the German government will not allow companies to export weapons of war to certain countries or regions, such as Iran, Iraq, and China.

Rheinmetall’s Italian subsidiary, RWM Italia, which specializes in the development and manufacturing of ammunition, explosives, and warheads,[29] has been connected to many civilian casualties in the current civil war in Yemen. The humanitarian organization Human Rights Watch took pictures of bombshells which could be traced back to RWM Italia. The German government took the position of not having any part in this, as this was a legal transaction between RWM Italia and the Saudi Arabian government, and the responsibility for policing this matter lies exclusively with the Italian government. Italy’s position was similar, saying that because it is a German company, Germany should have policed this transaction.[30] In this situation in Yemen, neither county which is part of the manufacturing process, will take responsibility for the weapons which kill civilians.[31]

According to Article 6 of the Arms Trade Treaty, the trade of weapons and arms cannot violate any United Nations arms embargoes, or other “relevant international obligations under international agreements to which it is a party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms.”[32] Current United Nations embargoes include Iran, Iraq, ISIL, Al-Qaeda and associated individuals and entities, Somalia, and Yemen. European Union embargoes additionally include China, Syria, and Venezuela.[33] By using subsidiaries in countries with less strict export regulations and embargoes, Rheinmetall effectively avoids the restrictions of the German government, and, by default, appears to remove Germany’s responsibilities according to the UN Arms Trade Treaty, the German Foreign Trade and Payments Act (AWG), and the German War Weapons Control Act (KWKG).

Article 7 of the Arms Trade Treaty implements an additional step, which export countries have to take, namely the export assessment. An export state must assess and account for the importing country’s use of the weapons. One may not export if the weapons contribute to undermining peace and security, or could be used to commit or facilitate violations of international humanitarian or human rights law, or if the weapons would facilitate terrorism or organized crime.[34] Germany, by essentially giving all export powers to Rheinmetall, does not perform this assessment. Rheinmetall, because it cannot necessarily be sanctioned by the UN, as it is no ratifying party to the treaty, does not abide by any of the regulations, proven by the list of countries to which Rheinmetall subsidiaries export.

Under Section 4 of the Foreign Trade and Payments Act (AWG), Restrictions and Obligations to Act in Order to Protect Public Security, it says that foreign trade transactions can be restricted in order to “1. prevent a disturbance of the peaceful coexistence of nations or 2. to prevent a substantial disturbance to the foreign relations of the Federal Republic of Germany”.[35]  Section 5 adds that restrictions and obligations under Section 4 can particularly be imposed on transactions in reference to “1. Weapons, ammunition and other military equipment and goods for the development, manufacture or deployment of weapons, ammunition and other military equipment . . . 2. Goods which are designed for the conduct of military actions.”[36]

Restrictions can also be imposed with reference to domestic companies which “manufacture or develop war weapons or other military equipment.”[37] Unfortunately, this does not include the Rheinmetall subsidiary in South Africa or Italy, as these are not domestic in Germany. Sections 4 and 5.1 do, in fact, speak to the case of Rheinmetall’s subsidiaries, as they do disturb the peaceful coexistence of nations, and do include weapons and military equipment, which leaves death tolls in war zones unaccounted for.

CONCLUSION

As one of the world’s foremost weapons manufacturers, Germany must abide by laws regulating the export of weapons of war. Germany should also put tougher, more stringent sanctions on companies who don’t abide by German, nevertheless, European or United Nations laws. Even if this will decrease the production of weapons, the German economy will not be tremendously affected, as all the weapons manufacturers also produce civilian machinery. Additionally, as a ratifying party of the United Nations Arms Trade Treaty, an influential country such as Germany, should be a role model to other countries, showing that humanity and the safe disbursement of weapons to stable countries are more important than the niche economic sector of weapons of war manufacturing. To take a stand on the current questionable morality of the Saudi Arabian Government, Germany has temporarily halted all weapons exports to the Kingdom, after the news regarding Journalist Jamal Khashoggi circulated[38]. This is a good first step in valuing human rights over capital gains, and will hopefully lead to a more humane view on weapons exports.

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Vanessa Jacobsen is a 2L at University of Denver Sturm College of Law and a Staff Editor on the Denver Journal of International Law and Policy.

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[1] Finanzen Rheinmetall Aktie, https://www.finanzen.net/aktien/rheinmetall-Aktie (last visited Jan. 31, 2018).

[2] Dietmar Hawranek, Markus Dettmer & Ralf Beste, A New Arms Race: Exports Booming for German Weapons Manufacturers, Der Spiegel, Jul. 11, 2011, http://www.spiegel.de/international/germany/a-new-arms-race-exports-booming-for-german-weapons-manufacturers-a-773626.html.

[3] Krauss-Maffai Wegemann, http://www.kmweg.de/unternehmen/geschichte.html (last visited Jan. 30, 2018).

[4] Rheinmetall Defence, https://www.rheinmetall-defence.com/en/rheinmetall_defence/index.php (last visited Jan. 30, 2018).

[5] Id.

[6] Hawranek, supra note 2

[7] Hawranek, supra note 2

[8] Kriegswaffenkontrollgesetz [KrWaffKontrG] [War Weapons Control Act], Oct. 11, 2002, BGBL | at 3970, § 1 (Ger.), https://germanlawarchive.iuscomp.org/?p=741.

[9] Außenwirtschaftsgesetz [AGW] [Foreign Trade and Payments Act], Jun. 6, 2013, BGBL | at 1482, § 1 (Ger.), http://www.gesetze-im-internet.de/englisch_awg/englisch_awg.html#p0093.

[10]  KWKG, supra note 8.

[11] Matthias Gebauer & Christoph Schult, Berlin Weighs Tank Deal with Turkey to Free Journalist, Der Spiegel, Jan. 22, 2018, http://www.spiegel.de/international/germany/arms-for-hostage-germany-explores-yuecel-deal-with-turkey-a-1189197.html.

[12] Hawranek, supra note 2.

[13] Id.

[14] Arms embargoes, Stockholm International Peace Research Institute, 2018, https://www.sipri.org/databases/embargoes.

[15] Konstantin von Hammerstein et at., translated by Christopher Sultan, German Weapons for the World: How the Merkel Doctrine is Changing Berlin Policy, Der Spiegel, Dec. 3, 2012, http://www.spiegel.de/international/germany/german-weapons-exports-on-the-rise-as-merkel-doctrine-takes-hold-a-870596.html.

[16] This fact has other historical reasons, which this paper will not investigate.

[17] Hammerstein et al., supra note 15.

[18] Id.

[19] Hawranek, supra note 2.

[20] G.A. Res. 67/234 B, United Nations Arms Trade Treaty, pmbl. (Jun. 3, 2013).

[21] Id.

[22] Id.

[23] G.A. Res. 67/234, supra note 20, at princ.

[24] Hawranek, supra note 2.

[25] G.A. Res. 67/234, supra note 20, at art. 1.

[26] Id. at art. 2.

[27] Id. at art. 4.

[28] Rheinmetall Denel Munition, https://www.rheinmetall-defence.com/en/rheinmetall_defence/index.php (last visited Jan. 30, 2018).

https://www.rheinmetall-defence.com/en/rheinmetall_defence/company/divisions_and_subsidiaries/rheinmetall_denel_munition/index.php.

[29]  RMW Italia, https://www.rheinmetall-defence.com/en/rheinmetall_defence/company/divisions_and_subsidiaries/rwm_italia/index.php (last visited Jan. 31, 2018).

[30] Hauke Friedrichs, Boom mit Bomben, Die Zeit, Oct. 28, 2016, http://www.zeit.de/2016/45/rheinmetall-ruestungskonzern-internationalisierung-export-kontrollen.

[31] Id.

[32] G.A. Res. 67/234, supra note 20, at art. 6

[33] Arms embargoes, supra note 14.

[34] G.A. Res. 67/234, supra note 20, at art. 7

[35] AWG supra note 9, at Sec. 4

[36] Id. at 5.1

[37] Id. at 5.2

[38] Zahl der Rüstungsexporte sinkt erneut, Tagesschau, Jan. 1, 2019, https://www.tagesschau.de/wirtschaft/ruestungsexporte-deutschland-101.html

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