International & Transnational Criminal Law

Transnational Soccer Crime?

I begin a new school year with a story from the lighter side of transnational crime. The CBC is reporting that a "Europe-based crime syndicate" has been engaged in an international soccer match-fixing scheme, in order to generate illegal profits from online betting. Six men have been convicted, and six are currently on trial, in Germany.

The evidence in the German prosecutions indicates that a game between the Trois-Rivieres Attak and the Toronto Croatia on 12 September 2009 was the target of price-fixing, with some Toronto players reportedly being bribed in the amount of €15,000 to throw the game. The CBC story notes: "The Canadian Soccer League, which is largely run by volunteers, was unaware of the verdict when approached by CBC News, even though it happened months earlier."

Above I characterize this as coming from the "lighter" side of this blog's ledger, though it is worth saying that any kind of corruption is corrosive and obviously should be suppressed by criminal law, not least because it lines the pockets of organized crime gangs who use the profits to do much more destructive things. Nonetheless, as compared to the usual fare here (genocide, war crimes, human trafficking, cybercrime, extra-judicial assassinations), this story is more of a curiosity.

Observers have been shocked by many aspects of this case, not least by the fact that Canada even has semi-professional soccer teams in which there is international interest, let alone the desire to fix their games.

Landmark Canadian ICL Book Published

 

I'm so pleased to announce here the publication of the long-awaited text by Professor Fannie Lafontaine, Prosecuting Genocide, Crimes Against Humanity and War Crimes in Canadian Courts. Professor Lafontaine has established herself as an authority in this area with a number of significant publications, and this book is the icing on the cake. The publisher's web listing can be found here.

The book is a thorough treatment of the prosecution of individuals under Canada's Crimes Against Humanity and War Crimes Act, and takes on the enormous task of integrating the statute with the complex international law principles on point -- a necessary task, since the scheme under the Act requires that judges both ascertain and apply international law principles *and* use them alongside domestic Canadian criminal law. This will be no mean feat. I made a stab at this topic in Chapter 5 of ITCL, but this book-length effort will be required reading for anyone interested in the topic. As distinguished Canadian ICL scholar William Schabas said in his own blog post about this book, this book "immediately becomes the leading authority."

From the book's foreword by Professor Schabas:

"Few national justice systems have done as much as Canada in grappling with the enormous legal challenges that arise when international crimes are prosecuted at the domestic level. This is the immense contribution of Fannie Lafontaine's study.....Professor Lafontaine's study responds to a need within the Canadian legal community, where prosecutions for international crimes and some related activities in refugee and immigration litigation are an increasingly significant part of the judicial landscape. But it will also fascinate those in other countries, who look to Canada for its recognized expertise in the intricacies of domestic implementation."

Bravo, and congratulations to Prof. Lafontaine on this landmark achievement.

The Assange Extradition: Curiouser...

 

The extradition case of Wikileaks capo Julian Assange (about which I previously blogged here and here) is becoming a fascinating exercise in something I emphasize for the students in my International Criminal Law course: transnational criminal matters are a continuing interplay between the legal and the political.

The background: Assange has earned himself the enmity of the US (among other states, it should be said) due to Wikileaks' release of an enormous amount of material, some of which was classified diplomatic and security communications. Sweden then sought custody of Assange for questioning related to two alleged sexual assaults during a trip to Stockholm. Assange has maintained that the sex was consensual, and that the Swedish inquiry was actually a ploy to get him onto Swedish territory and from there extradited to the U.S. to face "secret" indictments (possibly for conspiracy to commit espionage). He was arrested in London under a European Arrest Warrant issued by Sweden, and went through an extradition process where the latter argument fell on deaf ears, the UK Supreme Court denying him any recourse and ordering his surrender.

Just after that ruling, Assange sought asylum at the London embassy of Ecuador, whose president had earlier made remarks sympathetic towards Assange and Wikileaks (and, unsurprisingly, antagonistic towards the US). He has been living in the Ecuadorian embassy for the last five weeks, meeting with his lawyers and, presumably, watching the diplomatic wrangling play out between Ecuador, the UK and Sweden.

Coverage in a recent issue of the Guardian conveyed a great deal of information on current developments in the case, which I will cover and comment on below:

1) Ecuador has effectively granted Assange asylum, at least to the extent that it seems willing protect him until the "problem" is solved. Ecuador's senior legal adviser is quoted in the story as calling the potential re-extradition of Assange to the U.S. an "evil," so I guess we know where they stand.

2) on July 24, the Washington Post reported that Wikileaks and Assange had hired former crusading Spanish magistrate Baltasar Garzon to act for them, and specifically to advise on Assange's current situation. This is an extremely astute PR move -- Garzon has a great deal of international credibility, stemming most prominently from his having been the initiator of the extradition request that led to the UK House of Lords' decision regarding the extradition of Augusto Pinochet, an international criminal law high water mark if ever there was one.

3) on July 25, "Ecuador formally offered the Swedish prosecutor the opportunity to interview Assange inside the London embassy. Sweden ha[s] not responded to the proposal." This is another extremely astute move. Recall that Assange has not been charged in Sweden, and the Swedish prosecutor has been clear that he is simply being sought for questioning at this point (which is permissible under the European Arrest Warrant system). Earlier, Assange had volunteered to submit to questioning via video-conferencing, which the Swedish prosecutor rebuffed. This recent offer ups the ante somewhat, as the moving force behind the entire dispute has been Assange's suspicion that Sweden simply wants to get him into their territory so that they can re-extradite him to the US. To my knowledge, Sweden has not confirmed or denied this allegation, but if all they want him for is questioning, then doing it inside the Ecuadorian embassy should suffice. Of course, it's not quite that simple -- the Swedes are likely to want the Ecuadorians to consent to the Swedish law regarding questioning of a suspect being applied during the interview (a reasonable request), and it's possible that the British government might have to consent as well. Still, these don't seem like insurmountable barriers, and if the Swedish government rejects this offer, it will add credibility to the suspicion regarding a secret deal with the Americans.

4) the "senior legal advisor" has invoked the concept of "specialty." Under nearly all extradition treaties (and under the EAW), the requesting state is generally forced to agree that it will only try the individual regarding the crimes for which they were extradited by the requested state -- that is, the requesting state has an obligation to refrain from prosecuting on any other crime than that agreed to via the particular extradition request. Specialty is something of a hold-over from older extradition practice, but it's very interesting that it has emerged here. The Ecuadorians have asked the UK Home Secretary, Theresa May, whether she intends to waive specialty in this case, which is a prerogative of the requested state's government. The Foreign Office has not responded on May's behalf as of yet. It appears that part of Ecuador's plan to protect Assange will be to extract such a promise from the UK government as part of any deal to allow Assange to be sent to Sweden. Of course, if the UK and US governments are talking in the background, the latter has likely asked the former to waive specialty.

5) the UK Foreign Office has released a statement about the case, which is quoted in the Guardian story. The Foreign Office rather condescendingly indicates that it has explained to the government of Ecuador that the UK owes a binding obligation to Sweden to extradite Assange pursuant to the EAW, and notes that UK extradition law is replete with all the necessary human rights protections...so, essentially, they have nothing to worry about and should stop interfering. This is a bit disingenuous, in my view, because it simply doesn't address the re-extradition problem. Part of the argument would be that Swedish extradition law would ultimately be governed by the standards set by the European Court of Human Rights, and thus Sweden couldn't extradite Assange to face the death penalty in any event. However, this doesn't mean that he would not face a sentence of life without parole (regarding which, see below).   On the other hand, this does give a reminder of the big stick that the UK holds in the background here -- they do have an obligation to surrender Assange to Sweden, and if he steps foot outside the Ecuadorian embassy, they will be within their rights to arrest him and put him on a plane.

6) someone identified as a "political advisor" to the Ecuadorian government is quoted in the story as expressing "deep concern" about the prospect of Assange facing the death penalty if extradited to the US, and also that Ecuador views a sentence of life without parole as "equally inhumane" to the death penalty. In international law methodology terms, we call that evidence of "opinio juris," the expression that a particular state practice (i.e. refraining from extraditing someone to face the death penalty or life without parole) is actually required under the law. While this is not as clear an expression of opinio juris as one might like, the use of the word "inhumane" does a fair bit of work, as this is a legal term of art in this area -- to wit, pursuant to the UN Torture Convention, states cannot extradite or refoule an individual to another state where they would face "inhumane treatment." The issue of whether states can lawfully extradite individuals to face life without parole is a hot one these days, and has been the subject of recent decisions from the European Court of Human Rights and the Quebec Court of Appeal.

7) final issue: as a matter of international law, does the US have any jurisdiction over Assange's alleged crimes to begin with? There has been no public indictment as of yet, so we can only speculate. Obviously, anything Assange did to attract US attention was not done on US territory. The most that can be offered is that states are permitted to exercise extraterritorial jurisdiction over crimes that attack the state's vital interests (such as espionage), pursuant to the protective principle of jurisdiction. We'll have to await some actual indication of what, if anything, Assange is charged with to assess whether there is any jurisdictional overreach.

In any event, this case is getting more interesting by the week, and is worth watching.

Many thanks to law student Jennifer Groenewold for alerting me to the recent developments.

Mali Self-Refers to the ICC

 

ICC Prosecutor Fatou Bensouda has announced that the government of Mali has referred to the Court the situation within its own country, starting in January 2012. This is the fourth self-referral by a state party to the Court. Coverage here.

New Article on Cyber-warfare

 

I commend to your attention a new article on the pressing and novel issue of cyber-warfare, which is on the front of the radar for a large portion of the international military and security community. "International and Canadian Law Rules Applicable to Cyber Attacks by State and Non-State Actors" by Matthew Castel (Vol. 10(1) of the Canadian Journal of Law & Technology, pp. 89-120) is probably the first significant article on the topic in the Canadian legal literature, and certainly one that covers with great aplomb a broad variety of issues related to this timely topic.

First ICC Sentence Comes Down

 

The International Criminal Court has sentenced Thomas Lubanga to 14 years in prison, after his recent conviction for conscription of child soldiers during the conflict in the Kivu provinces of eastern Democratic Republic of Congo.

As always, solid coverage by the Coalition for the ICC. The Court's sentencing decision can be found here.

Julian Assange Update

 

This case keeps getting more interesting. Julian Assange, while out on bail in London awaiting his surrender to Sweden, has now sought asylum in the Embassy of Ecuador. The Ecuadorian government, whose President has apparently made sympathetic noises regarding Assange's plight, are considering the request. Coverage here. As correctly noted in the BBC's Q&A on this development, the UK police cannot enter the embassy and arrest Assange because of state immunity.

One of Assange's former lawyers has speculated that he will try to use any protection Ecuador gives him as an opportunity to negotiate with the Swedish authorities -- specifically, to have them agree not to re-extradite him to the US to face any charges there once the Swedish matter is complete. Re-extradition will be within the discretion of the Swedish government.

Assange has been criticized as constantly seeking the spotlight and making legal maneuvers to try to keep the spotlight on his Wikileaks mission, so for the cynical this could be perceived as another plank in that platform. On the other hand, Assange quite reasonably believes that he may be the subject of a secret indictment in the US (which is available in national security matters), and the US government has maintained a rather stern posture towards him.

Before one yells "conspiracy theory," it is worthwhile to note this: it is well documented that various companies which had been providing Wikileaks with commercially-based internet services unilaterally withdrew these services when pressure was applied to them by American politicians. In the story above, the US's Ambassador to the UN Human Rights Council was quoted as saying "getting too enamoured with the idea that Julian Assange is a whistleblower missed the reality that confidentiality on the part of governments is not all bad."

Perhaps an appliation of the adage, "just because you're paranoid doesn't mean they're not out to get you."

Assange Extradition and the EAW

 

So, the media are reporting that Julian Assange, President of Wikileaks, has lost his last bid to get the UK courts to prevent his extradition to Sweden, where he is wanted for questioning about sexual assault allegations. He can challenge the UK High Court's decision not to reopen the case before the European Court of Human Rights, but the general take is that he's unlikely to see much success there.

The whole Assange affair has been, and will continue to be, mercilessly chewed over in many outlets, and I don't intend to take it up here. It all began, however, because a Swedish court issued what's called a "European Arrest Warrant" (EAW) for Assange. What might be of interest to readers of this blog is how this case highlights an interesting aspect of the EAW system.

Traditionally, "fugitives" (whom we now more politely call "persons sought") were surrendered from state to state by way of extradition, which is a formal process. Extradition has always covered one of two situations: 1) fugitive is wanted in the requesting state for commission of a crime, for which he will be tried; and 2)  fugitive has been convicted in the requesting state but has escaped, and the requesting state wants him back to serve out his sentence.

The EAW is a ramped-up version of this system, meant to make transfer of persons sought easier and more efficient from an administrative point of view, due to the highly integrated nature of the EU framework. The vision was that, since EU states all trust each other to have sensible criminal justice systems and at least reasonably good protections for the defence, formal extradition should not be needed. Rather, a judge in the requesting state (or, in some EU states, a public prosecutor) would issue a warrant, the warrant sent to the state in which the person sought is located, and he/she would just be arrested and transported to the requesting state.

However, the EAW effectively contemplates a third ground of surrender which does not exist under conventional extradition regimes: accused is wanted in the requesting state for questioning regarding an offence. That is, he is a suspect but has not necessarily been charged with the offence (in the sense that we common law lawyers would understand it). This is because the EAWs are available "for the purpose of conducting a criminal prosecution" (EU Framework Decision, article 1(1)), which gives more leeway for civil states in which the prosecutorial system operates differently.

To be sure, however, an EAW is available to authorities who have not made a decision as to whether or not they are going to try the person sought. This is, according to media reports, the situation with Assange. It is entirely possible that he will be questioned and released when he gets to Sweden. Assange himself, incidentally, has made great hay with this, noting that under the European cooperation mechanisms he could be questioned by way of video-link, and indeed that he volunteered to do this but the Swedish prosecutor declined.

Another interesting fact: this aspect of the EAW is becoming contentious. Many human rights groups have complained that the EAW is being abused because it is being used simply as a tool for criminal investigation, rather than to faciliate prosecution (the UK Extradition Review, which I blogged on a while back, considered but dismissed this criticism). In some cases, people have been surrendered to foreign states and sat in jail for months or years, only to have the entire thing dismissed. In a decision on 1 March 2012 the Irish High Court granted the appeal of the person sought and invalidated a request from France under the EAW, on the basis that while a decision had been made in the nature of charging the person sought, the French government had not yet decided whether or not to try him.

This is a topic worth watching for Canadians -- in no small part because it has been suggested, quietly and in government circles, that we might enter into an EAW-type arrangement with the US, the UK, perhaps even Mexico.

Some intriguing criticisms of the EAW system can be found at the website of Fair Trials International.

ICC Staff Held in Libya

 

On Thursday, 11 June, four members of the International Criminal Court's staff were detained in Zintan, Libya. The staffers were in Zintan to meet with Saif Al-Islam Gadhafi, son of the now-deceased dictator who is under indictment by the ICC for various crimes against humanity committed during the "Arab Spring" uprisings in that country. Apprehended in November, 2011 while trying to flee to Niger, Gadhafi has been the target of a verbal tug-of-war between the court and the Libyan government ever since.

This event has added some fuel to the fire and the international criminal justice community has been, to use the colloquial phrase, freaking out. There are reports (emanating from the Libyan government) that one of the ICC staffers was trying to "pass documents" to Gadhafi and were carrying "spying and recording equipment," but most serious commentators are of the view that the entire matter is being trumped up. Libya, of course, has not signed the Rome Statute but is required to cooperate with the Court because the matter was referred by the Security Council. The Court has demanded the release of the staffers, so far to no effect.

As usual, excellent coverage of the matter is provided by the Coalition for the International Criminal Court, here.

 

Mungwarere Genocide Trial Begins

 

The trial of Jacques Mungwarere on charges of participating in the Rwandan genocide begins today in Ottawa. Coverage here. This is Canada's second trial since bringing in the Crimes Against Humanity and War Crimes Act in 2000. As with the first trial, that of Desire Munyaneza (see Chapter 5 of the book), Canada has exercised custodial universal jurisdiction over Mungwarere and his alleged crimes, which arise from events in Rwanda in 1994.

There is no particular news about this matter, other than the fact that the accused had originally opted for a jury trial and unexpectedly reversed this decision on the day of jury selection. The trial will now proceed before a judge alone -- which, given the complexity of applying the law to the facts as they emerge during the trial (again, see Chapter 5), is probably to everyone's advantage.