Category Archives: ICC

Situation in Palestine

1, On 22 January 2009, pursuant to article 12(3) of the Rome Statute, Ali Khashan acting as Minister of Justice of the Government of Palestine lodged a declaration accepting the exercise of jurisdiction by the International Criminal Court for “acts committed on the territory of Palestine since 1 July 2002.”1

2. In accordance with article 15 of the Rome Statute, the Office of the Prosecutor initiated a preliminary examination in order to determine whether there is a reasonable basis to proceed with an investigation. The Office ensured a fair process by giving all those concerned the opportunity to present their arguments. The Arab League’s Independent Fact Finding Committee on Gaza presented its report during a visit to the Court. The Office provided Palestine with the opportunity to present its views extensively, in both oral and written form. The Office also considered various reports with opposing views.2 In July 2011, Palestine confirmed to the Office that it had submitted its principal arguments, subject to the submission of additional supporting documentation.

3. The first stage in any preliminary examination is to determine whether the preconditions to the exercise of jurisdiction under article 12 of the Rome Statute are met. Only when such criteria are established will the Office proceed to analyse information on alleged crimes as well as other conditions for the exercise of jurisdiction as set out in articles 13 and 53(1).

4. The jurisdiction of the Court is not based on the principle of universal jurisdiction: it requires that the United Nations Security Council (article 13(b)) or a “State” (article 12) provide jurisdiction. Article 12 establishes that a “State” can confer jurisdiction to the Court by becoming a Party to the Rome Statute (article 12(1)) or by making an ad hoc declaration accepting the Court’s jurisdiction (article 12(3)).

5. The issue that arises, therefore, is who defines what is a “State” for the purpose of article 12 of the Statute? In accordance with article 125, the Rome Statute is open to accession by “all States”, and any State seeking to become a Party to the Statute must deposit an instrument of accession with the Secretary-General of the United Nations. In instances where it is controversial or unclear whether an applicant constitutes a “State”, it is the practice of the Secretary-General to follow or seek the General Assembly’s directives on the matter. This is reflected in General Assembly resolutions which provide indications of whether an applicant is a “State”.3 Thus, competence for determining the term “State” within the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of General Assembly. The Assembly of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with article 112(2)(g) of the Statute.

6. In interpreting and applying article 12 of the Rome Statute, the Office has assessed that it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court under article 12(1). The Rome Statute provides no authority for the Office of the Prosecutor to adopt a method to define the term “State” under article 12(3) which would be at variance with that established for the purpose of article 12(1).

7. The Office has been informed that Palestine has been recognised as a State in bilateral relations by more than 130 governments and by certain international organisations, including United Nation bodies. However, the current status granted to Palestine by the United Nations General Assembly is that of “observer”, not as a “Non-member State”. The Office understands that on 23 September 2011, Palestine submitted an application for admission to the United Nations as a Member State in accordance with article 4(2) of the United Nations Charter, but the Security Council has not yet made a recommendation in this regard. While this process has no direct link with the declaration lodged by Palestine, it informs the current legal status of Palestine for the interpretation and application of article 12.

8. The Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue relevant to an assessment of article 12 or should the Security Council, in accordance with article 13(b), make a referral providing jurisdiction.

Notes
1The declaration can be accessed at: http://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279777/20090l22PalestinianDeclaration2.pdf
2 For a summary of submissions see http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor/Comm+and+Ref/Palestine/
3This position is set out in the understandings adopted by the General Assembly at its 2202nd plenary meeting on 14 December 1973; see Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev.1, paras 81-83; http://untreaty.un.org/ola-internet/Assistance/Summary.htm

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Party of Fraud: Hezbollah’s Criminal Enterprises

On March 19, 2012, Michael Braun, David Asher, and Matthew Levitt addressed a Policy Forum at The Washington Institute. Mr. Braun, a managing partner with Spectre Group International, is former assistant administrator and chief of operations at the U.S. Drug Enforcement Administration. Dr. Asher, a senior fellow at Center for a New American Security, specializes on countering illicit financial networks and transnational threats. Dr. Levitt, director of The Washington Institute’s Stein Program on Counterterrorism and Intelligence, is the author of the forthcoming book Hezbollah: The Global Footprint of Lebanon’s Party of God. The following is a rapporteur’s summary of their remarks.

MICHAEL BRAUN

Given the growing confluence of drugs and terror, Washington needs to be more focused on Hezbollah’s illicit activities, particularly in the Western Hemisphere. A long-established relationship with the Islamic Revolutionary Guards Qods Force provides Hezbollah, Iran’s trusted proxy group, opportunities to build operational capacity in the global illicit drug trade.

Hezbollah entered the global narcotics trade approximately seven years ago by acquiring relatively small amounts of cocaine in 15kg-20kg quantities. Trafficking the drugs from the Tri-Border Area (Brazil, Paraguay, and Argentina), across the Atlantic, and into locations like Europe, Saudi Arabia, and the United Arab Emirates , this initial investment produced hefty profits almost overnight. Today, Hezbollah is moving tons of cocaine into West Africa, onward to North Africa, and eventually into European markets.

For decades, Hezbollah has been a master at identifying and exploiting existing smuggling and organized crime infrastructure. Conservatively, the DEA has linked at least half of the U.S.-designated foreign terrorist organizations to the global drug trade. Hezbollah’s illicit activity is directly linked to the group’s ability to build contacts and relationships globally.

In permissive environments, Hezbollah operatives are developing close personal relationships with individuals from organized crime groups. Formidable inter-organizational relationships evolve from these personal relationships as young operatives dispatched to places like the Tri-Border Area ascend the ranks within their organization. DEA agents routinely report links between Hezbollah and other terrorist and organized crime groups throughout South America, West Africa, and Europe.

Going forward, Washington should focus on three key strategies to disrupt the growing nexus between drugs and terror. First, the development of interlocking counternarcotics and counterterrorism strategies with singular funding streams can limit the usual stovepiping that stifles cooperation between agencies. Second, because U.S. law enforcement presence in South America has decreased since 9/11, Washington needs to put greater emphasis on “defense in depth” — i.e., expanding U.S. activity in the region. Finally, a relentless focus on traditional threats such as drugs, arms, and human trafficking, along with their associated money laundering, will expose terrorist operatives to law enforcement.

DAVID ASHER

Hezbollah has long exploited the Lebanese banking system to bolster the group’s coffers. The startling growth of Lebanon’s banks illustrates the degree of Hezbollah’s money-laundering activity in the wake of Hezbollah’s 2006 war with Israel. Banking data suggests the Lebanese banking system essentially doubled between 2006 and 2011, the result of a massive surge in dollar-dominated deposits from non-residents and members of the Lebanese diaspora. Foreign exchange reserves and gold reserves of the Central Bank of Lebanon tell a similarly story — during the war the funds skyrocketed. The miraculous growth experienced by the Lebanese banking system during costly reconstruction efforts is suspicious at best.

The fastest growing bank in Lebanon over the last decade has been the Lebanese Canadian Bank — the bank most centrally involved in Hizballah’s finances. It provided services and loans to Hezbollah entities and received large deposits without reporting their source to the central bank. Hezbollah has encroached on every part of Lebanon’s economy from its banking system to real estate and construction; however, they also seem to embrace illicit finance as a main source of revenue. Indeed, these illicit networks connect back to Hezbollah’s coffers through Hussain al-Shami, a senior leader in charge of foreign donations to Hezbollah’s fundraising organizations.

In December 2011, a $483 million asset forfeiture claim filed in the Southern District of New York exposed a massive money-laundering scheme through Hezbollah fronts in Lebanon, including the Lebanese Canadian Bank and two Beirut-based money exchange houses. The Lebanese financial institutions assisted in a scheme to integrate hundreds of millions of dollars from narcotic sales with the proceeds of used cars bought in the United States and sold in Africa. Over the last five years, large sums of bulk cash, often escorted by Hezbollah security guards, have been shipped from Africa to Lebanon; in 2007 alone, some $1.2 billion declared at the Togo-Ghana border made its way into Lebanese banks. The Lebanese Canadian Bank and affiliated exchange houses laundered and eventually piped the funds back into the U.S. and European banking systems.

Hezbollah’s money-laundering activities and infiltration of the banking system constitute a principal risk to Lebanon’s financial security. For instance, the U.S. Treasury designation of the Lebanese Canadian Bank triggered a run on funds in the banking system, while Iran and Syria continue to use Beirut to skirt sanctions and thus expose the entire Lebanese banking system to severe sanctions. The choice facing the Beirut is clear: maintain Lebanon’s government or maintain Hezbollah.

Going forward, the United States needs a decisive pressure option to curtail the influence of Hezbollah and Iran in Lebanon without resorting to military force. Washington should consider creating an Iran-Hezbollah Illicit Activities initiative — similar to the initiative applied against Kim Jong-il’s regime and the strategy that proved effective against Milosevic in the mid-1990s.

MATTHEW LEVITT

While Hezbollah has long engaged in criminal activity, the scope and scale of that activity has expanded significantly over time, providing law enforcement opportunity to undermine the group’s capabilities. Consider last December, when federal prosecutors accused three Hezbollah-linked financial institutions with laundering more than $480 million from narcotics trafficking and other criminal activities. Hezbollah operative Ayman Joumma, who had operations in Colombia, Lebanon, Panama ,and West Africa, laundered as much as $200 million a month in cocaine sales in Europe and the Middle East for the scheme.

Over several years Hezbollah has been uniquely positioned to draw from a vast continuum of worldwide supporters and operatives. At one end is a small group of Hezbollah-trained operatives and at the other a much larger pool of sympathizers who provide funds for the group.

From weapons procurement of shoulder-fire missiles to stolen laptops, passports, and PlayStation 2s, material support cases in 2009 indicate the scope and scale of Hezbollah’s rising criminal activity. In one case a Hezbollah operative attempted to sell counterfeit money to a government witness. The counterfeit bills, however, proved to be genuine, revealing a Hezbollah scheme to sell money stolen from the Middle East. In yet another instance, Dani Nemr Tarraf, charged with spearheading a plot to obtain military-grade weapons for Hezbollah, told conspirators that weapons could be easily shipped through the port of Latakia into Syria and Iran because Hezbollah controlled the port and secrecy was guaranteed.

Criminal activities expose Hezbollah to unprecedented scrutiny from U.S. law enforcement, offering new opportunities to target the group. Although many countries are reluctant to cooperate with the U.S. counterterrorism efforts for fear of admitting that terrorists operate on their soil, they are less hesitant to cooperate on criminal law enforcement. It is often easier to pursue and apprehend suspects as criminals than as terrorists.

This has been evident in U.S. efforts to counter Hezbollah activity in the Tri-Border Area. It is no surprise that Buenos Aires, Brasilia, and Asuncion issued a joint statement rejecting U.S. claims of terrorist activity in the region. Yet, “the governments [of the Tri-Border Area] have long been concerned with arms and drugs smuggling, document fraud, money laundering, and the manufacture and movement of contraband goods through this region,” according to a 2007 U.S. State Department assessment. These countries are more willing to cooperate with the United States if it frames its efforts as anticrime and antidrug rather than as counterterrorism. Enforcing domestic laws to hold terrorists accountable for their criminal activity allows countries to avoid the messy politics that counterterrorism activities might imply.

Q&A SESSION

This rapporteur’s summary was prepared by Divah Alshawa

 

IDF Elite Unit Combats Hamas Smuggling Tunnels (Video)

Between March 9th and March 14th, terrorists from the Hamas ruled Gaza Strip fired hundreds of rockets at Israeli population centers. These rockets are smuggled into the Gaza Strip through a vast network of smuggling tunnels, often hidden under residential structures. The IDF Combat Engineering Corps’ elite unit ‘Yahalom’ (Diamond) detects and destroys these tunnels, in order to cut off the weapons supply to terror organizations such as Hamas.

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