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The IBA’s response to the situation in Ukraine
As the US disengages from its leadership role in the world, Global Insight assesses what this means for international justice and accountability.
Who do you call when you can’t call the police? That question is being asked by Black Lives Matter advocates calling for police abolition, and by domestic violence victims who aren’t believed by law enforcement. But it should be a question asked by the international legal community when it comes to the policing and prosecution of crimes on a global level, including in business, in war and regarding abuses of human rights.
Once, the United States was willing and able to act as de facto world leader and police force, establishing many institutions and agreements of the liberal world order. The current administration of President Donald Trump has sought to demolish them.
Toby Cadman, European Regional Forum Liaison Officer of the IBA War Crimes Committee and international law specialist, says ‘the US had traditionally been seen as the world police for many different issues. And that’s just gone’.
The withdrawal from multilateralism, international agreements and responsibilities under President Trump is a huge concern when it comes to seeking accountability for international crimes. But it’s far from the end of the story for US disengagement.
Filippo Ferri, Secretary of the IBA Business Crime Committee and a partner at Studio Legale Cagnola & Associati in Milan, tells Global Insight ‘the strength of the US historically, when seeking justice for international financial crimes, is their reputation. To be a free country of democracy, a respected country. I think that today this picture of the US has some rust. Are we so sure that they still are the country of democracy, the country of freedom, of justice?’
Gary Kalman is Director of Transparency International’s US office. ‘The stepping back from international multilateral fora is a huge issue for addressing the root problems that allow corruption, money laundering and so on to happen,’ he says, ‘because it means that we get to pretend that we’re isolated from the problem.’
European Regional Forum Liaison Officer, IBA War Crimes Committee
Ferri adds, ‘if you want to prosecute crimes all over the world, you cannot act without cooperation. There are countries that you can threaten with sanctions, but others with which you can’t take that approach. Without cooperation, I don’t think you can play that role of ruler of the world any longer.’
Kalman argues that the damage to the position of the US, while accelerated by President Trump, began before his administration. It could take longer than a presidential term or two to remediate.
In recent years, the US has made substantial use of economic sanctions, which Ferri describes as ‘the new world weapon,’ and says can have a dramatic impact on a country – in some cases, an impact that exceeds the damage of war and hits citizens harder than it hits the perpetrators of crimes.
Cadman argues the potential for misuse of sanctions is rife, pointing to US campaigns of ‘maximum pressure’ against Iran, North Korea and Venezuela. He says, ‘the ability of a state to implement self-serving measures designed to punish its adversaries places an undue burden on its citizens and businesses alike.’
After the Trump administration withdrew from the Iran nuclear agreement and reinstated economic sanctions in 2018, Iran’s GDP contracted an estimated 4.8 per cent and was projected by the International Monetary Fund to shrink a further 9.5 per cent in 2019. The cost of basic goods has doubled since 2016.
The 2015 nuclear agreement, negotiated under the Obama administration, had withdrawn international community sanctions on Iran in exchange for Iran limiting its nuclear activities. It saw Iran’s GDP soar from -1.3 per cent to 13.4 per cent in 2016.
‘Conflicts among countries should be governed by the rule of law,’ says Ferri. ‘The rule of law means that there is a trial and a judge who decides a sentence based on common agreed rules. The use of sanctions, by definition, is not in compliance with the rule of law because the use of sanctions is one country punishing another country for reasons that he deems necessary. There is no trial. There is no law.’
He says: ‘we’re not talking about justice. We’re not talking about democracy. We’re talking about the use of force, the use of strength for the interest of one single party against the others.’
Secretary, IBA Business Crime Committee
The US’s use of targeted sanctions, against individuals as opposed to countries, is becoming a threat to the rule of law itself. In September, the US inflicted targeted sanctions on International Criminal Court (ICC) officials, which Federica D’Alessandra, Co-Chair of the IBA Human Rights Committee, calls ‘one of the saddest pages of the Trump Presidency’. The ICC officials were targeted in response to investigations into alleged crimes committed by US forces in Afghanistan.
One sanctions expert notes there is much less sympathy from other countries for the use of sanctions in situations where the motive is self-interest rather than peace and security. She says, ‘that is where Trump is considered to be starting to push the boundaries and, depending on how the world reacts, it has the potential to be self-sabotaging, as other countries will start to seek a much bigger place on the world stage.’
Whether the US administration has used economic and targeted sanctions for the good of the world or out of self-interest, its ability to use them so powerfully rests on its longstanding status as a world leader and the stability of the dollar that made it so suitable to function as the world’s reserve currency.
This also allows the US to extend the jurisdiction of the FBI, for example, over crimes committed internationally simply through the involvement of US dollars or clearing banks. The US claimed jurisdiction in extraterritorial financial scandals, such as wire fraud committed by FIFA officials.
Currently, around half of the world’s trade invoices are in dollars, but in 2018 economists from the World Bank declared that de-dollarisation had begun and cannot be reversed.
The damage sanctions can do and the volatility with which this weapon is wielded is driving countries to de-dollarise international transactions to avoid the jurisdiction of the US where possible.
In June 2019, China and Russia announced their intent to increase trading in their own currencies. China is keen to take the US’s place by elevating the use of the yuan, while Russia has made efforts to increasingly use euros and roubles for energy transactions. It has stated the US sanctions are a driving force behind these moves.
US President Donald Trump and China's President Xi Jinping shake hands after making joint statements at the Great Hall of the People, Beijing, China, 2017. REUTERS/Damir Sagolj
‘If de-dollarisation will limit the possibility to use such a weapon – which is absolutely reasonable – the capacity of the US to intervene may be limited,’ says Ferri.
If any currency were to replace the dollar as the world’s dominant currency, the question is whether any such country – or bloc, as with the euro – is willing or able to also take on responsibility for policing transactions and human rights.
Suzie Ogilvie, Chair of the IBA Anti-Money Laundering and Sanctions Expert Subcommittee and Global Head of Financial Crime and Sanctions at Freshfields Bruckhaus Deringer, notes that the European Union is a difficult case in this regard, because it’s challenging to get all 27 Member States to agree on sanctions. She believes this makes it more difficult for the EU to replace the US as a leader in this area. ‘If you look at what happened with Russian sanctions – it wasn’t until flight MH17 was shot down that all Member States could agree to a widening of the sanctions in line with those already imposed by the US.’
Among the next in line in the ‘old guard’ of human rights defenders is the United Kingdom, which in July launched its first autonomous targeted sanctions regime following its departure from the EU. The UK’s Foreign Secretary Dominic Raab described the regime as ‘a demonstration of Global Britain’s commitment to acting as a force for good in the world’.
But the UK received criticism for the initial scope of the regime and designations: most of the individuals sanctioned by the UK were already sanctioned by the US, there were no sanctions on Chinese individuals or companies and corruption isn’t yet included in the scope of the regime.
The UK government has stated that more designations are to follow and that the regime is set to be expanded.
Raab was asked by UK media if the government’s sanctioning of 20 Saudi Arabian officials it believes were involved in the killing of journalist Jamal Khashoggi would compromise trade relations. He asserted that trade partnerships would not interfere with the moral duty to respond to ‘gross violations to human rights’. The day after announcing the sanctions, the UK resumed arms trade with Saudi Arabia.
Cadman tells Global Insight that ‘the continuance of arms trade with Saudi Arabia, and to some extent the continuation of diplomatic relations with Bahrain, Egypt, Saudi Arabia and the UAE, significantly hinders the efficacy of the sanctions regime, in addition to lessening the UK’s ability to be taken seriously as a world leader on human rights and democratic freedoms.’
In Cadman’s view, the central connection between UK-made arms and the Saudi-led bombardment of Yemen and the Saudi-UAE-Egypt support of Khalifa Haftar in Libya wholly contradicts any notion of humanitarian concern. ‘The message that is therefore put forth is that the UK previously has, and will continue to, prioritise its political relationships with Bahrain, Egypt, Saudi Arabia and the UAE and a host of autocracies over the protection of lives and accountability,’ he says.
For Ferri, without the US there is ‘no other country in a condition to – or willing to – prosecute international crimes. Such role may be played only by China or Russia, but I do not believe that they would.’ Given the human rights abuses both these countries are accused of, their economic standing is not enough for them to lead on accountability for atrocities or, for similar reasons, corruption.
Kalman believes that the idea that de-dollarisation can’t be stopped is overstated, but acknowledges US sanctions rely on people wanting access to US bank accounts and other US-based investment vehicles. ‘If a corrupt leader doesn’t need to move money through the US and doesn’t use US dollars, then those sanctions become irrelevant,’ he says.
Kalman says there is clear evidence that the traditional ways the US has tried to police corruption and money laundering elsewhere are losing efficacy. ‘In stepping back from our financial investments around the world, the soft diplomacy power that the US has had worldwide slips, so this go it alone policy has implications. And I think that that feeds into the theories about how quickly or not de-dollarisation could happen.’
Kalman argues that the Chinese Belt and Road Initiative and its investments in Africa should be a concern. ‘The Chinese are willing to lend enormous amounts of money to countries that are struggling, and then when such countries default on their loans they turn over key assets, like ports, to the Chinese.’
‘What happens when key assets of countries are controlled not by the sovereign nation and not by the US or other allies, but by players that represent dangerous and corrupt regimes?’ asks Kalman. ‘What does that mean for accountability for corruption?’
He says this economic investment by corrupt countries, juxtaposed with a stepping back of investment from the US, is unlikely to mean that the dollar is replaced as a world currency, but it certainly undermines the US authority to prosecute corruption. So, for reasons beyond the scope of a single presidential election, the very capacity of the US to – as Kalman puts it – police some of the worst behaviour in the world, is eroding just as much as its willingness under the current administration.
‘The conclusion, very sadly, could be: de-dollarisation and the decline of the US as world leader may lead to impunity for international crimes,’ says Ferri. ‘Only supranational institutions could fill such a gap. But, in order to do that, they should be upgraded and enhanced.’
As argued by IBA US Correspondent Michael Goldhaber in the December 2019/January 2020 edition of Global Insight, the US under the Trump administration has taken a sledgehammer to the liberal world order and its institutions (see feature, The US Presidency: present at the destruction). Beyond withdrawals from agreements and the Human Rights Council, the loss of US leadership on human rights concerns has devalued measures that are taken by the UN Security Council (UNSC).
D’Alessandra says ‘the resurgence of great powers competition, especially between the US and Russia, as well as between the US and China, coupled with the US’s decline of influence (and effectiveness in multilateral fora under the Trump administration), means that diplomacy among the Permanent Five (P5) UNSC members has weakened across the board. This, of course, has had an impact on the pursuit of international justice and accountability.’
D’Alessandra notes that ‘all the P5 use the veto to protect their national interest, as well as cronies and allies, and always have. I crunched some numbers and, all in all, only nine per cent of UNSC resolutions have ever been vetoed. This tells us that, historically, the veto has been an issue, of course, but not as paralysing as it is today.’
What’s changed today, she believes, is the will and ability of the P5 – or rather, the P3 (France, the UK and the US) – to work together and compromise. ‘There are few things more dangerous to the world order than this, given their role as trustees of our collective peace and security,’ she says.
Co-Chair, IBA Human Rights Committee
Cadman argues ‘the UNSC has become completely powerless. The turning point was the Libya referral. You can trace everything back to China and Russia considering the referral as a way to bring about regime change, taking issue with that and making it clear they would not support any further referral to the ICC from the UNSC. If our starting point is that the UNSC will not even consider an ICC referral, then your ability to bring about change through justice is severely limited.’
He adds, ‘what I would like to see is a new procedure for atrocities and ICC referrals. Where you have a situation that one of the P5 can frustrate a matter of which they are directly or indirectly involved, that has to change. All states have to come together and push for that reform’.
Cadman argues that ‘with the “old guard” showing very little interest in chasing accountability, other nations that would previously have supported those initiatives are recognising that they have to take the lead’. He thinks we will see more of France, Germany, the Netherlands and others stepping forward. ‘It’s an opportunity for them to cement themselves as the leading powers on rule of law intervention,’ he says, ‘and the Netherlands has become a powerhouse of international justice’.
D’Alessandra says she is encouraged by ‘what one might consider a counter-tendency to the breakdown of diplomacy among the P5’. She observes this in recent events, such as the action taken by The Gambia at the International Court of Justice (ICJ) against Myanmar on behalf of the Organization of Islamic Cooperation, and the creation of UN international investigative mechanisms for Iraq (on Daesh), Myanmar and Syria.
She adds, ‘other bodies and organs of the UN, as well as other regional organisations, have stepped in and become more assertive in exercising their complementary responsibilities, and I think this is the way forward.’
Cadman believes that leadership is coming from a group of ten to 15 UN members who ‘tend to push forward on international cooperation and accountability. Some of them are relatively small, powerless nations, but together they have strength in numbers’.
‘Two of the countries leading the fight now on Syria diplomatically are Lichtenstein and the Netherlands, which are not countries you would expect this kind of action from,’ says Cadman, who is also the Co-Founder of international initiative The Guernica Group and Joint Head of Chambers at Guernica 37 International Justice Chambers.
At the beginning of this summer, Guernica 37 were asked to assist in the collection of evidence of torture in Syria, ahead of the Dutch government filing against Syria in the ICJ for breaches of the UN Convention Against Torture. The formal process began on 18 September, when the Dutch government put the Syrian government on notice.
These efforts follow a recent case in Spain, where the country used its universal jurisdiction laws, with cooperation from the US, to pursue accountability for atrocities committed against priests who were also Spanish citizens in El Salvador. Cadman says ‘this case, and the ongoing Anwar case in Germany, are hugely significant. That’s where justice lies. Regrettably at the moment it doesn’t lie at the level of the ICC. The ICJ does offer a realistic prospect of holding the Syrian regime accountable for torture and that process is now just starting.’
In the Spanish and German cases, the prosecuting state has used universal jurisdiction laws to pursue accountability for crimes committed in other jurisdictions, even where amnesty laws in El Salvador made accountability a long shot. In Spain, the Jesuit Massacre trial saw Colonel Inocente Montano convicted of massacring six Jesuit priests and two civilian women in El Salvador in 1989, during the country’s civil war, and sentenced to 133 years in prison.
In Germany, at a regional court in the south-west town of Koblenz, former Colonel Anwar Raslan faces charges of 4,000 counts of torture, 58 murders, alongside rapes and sexual assaults. Raslan led a unit of Syria’s General Intelligence Directorate. The case is the first prosecution for war crimes allegedly committed by the Syrian regime since 2011 when the civil war began.
The case was not taken to the ICC due to the involvement of countries like Russia and the US in the conflict, which meant political consensus for such a prosecution was unlikely.
Cadman believes the future of accountability for international crimes is going to rely on cases like these, with ‘individuals and groups of lawyers trying to bring about change. We’ve seen in the past when lawyers have been able to effect change, and now more than ever before innovative approaches to legal accountability are necessary – looking at non-traditional states to support legal initiatives, for example.’
Perhaps the only member of the old guard who can still be trusted to safeguard the rule of law and pursue accountability are what the UK Home Office recently called ‘activist lawyers’ – any member of the legal profession prioritising their duty to justice over political trends. Cadman embraces the term. ‘The future is a combination of loud-mouthed “activist” lawyers working with smaller states.’
Jennifer Venis is Multimedia Journalist at the IBA and can be contacted at firstname.lastname@example.org
Header pic: China’s sanctions put pressure on the US economy. Alamy Stock Photo/ WallDerMarus