ILS News (April 2022)

Dear ILS Members,

We have had a busy first quarter of 2022. On February 21, 2022, we signed the Friendship Agreement with the Kanagawa Bar Association and we are looking forward to having them join us for the 2022 CLA Annual Meeting in San Diego. We also co-sponsored the first California International Arbitration Week. It was a successful program that was well attended by participants from all around the world. Check out the list of topics that were discussed throughout the week-long event and hopefully you will join us for the next California International Arbitration Week. We also organized the following webinars: (1) Cannabis and Hemp: Opportunities and Pitfalls for the Foreign Investor; (2) Global Commercial Leasing: Beginner’s Guide to Commercial Real Estate Leasing in Japan; and (3) Model Contract Clauses to Protect Workers’ Human Rights in Supply Chains.

In April, we have a webinar on Human Trafficking 101 and Immigration Remedies (April 7) and a webinar on Global Commercial Leasing: Beginner’s Guide to Commercial Real Estate Leasing in Spain (April 25).  We are also co-sponsoring a virtual networking mixer with LACBA on June 1, 2022 and we hope that you can join us. We have a few more programs in the planning stages and once the schedule is available, we will notify you via our weekly Section Digest which typically goes out to ILS members on Thursday mornings. If you have not been receiving the Section Digest, please email us at ils@calawyers.org.

Currently, we are seeking nominations for the 2022 Warren Christopher Award and applicants to join the Executive Committee for the 2022/2023 term.  

We cannot ignore the craziness that is happening around the world and not just in Ukraine. On March 1, 2022, ILS issued a statement condemning the Russian invasion of Ukraine and the complete disregard of the rule of law. If you are looking for ideas on how you can help in this moment of crisis, we have compiled a list of suggestions for your consideration on page 17 of this edition of the ILS NEWS. We are also collaborating with the Tahirih Justice Center on the Afghan Asylum Project to support Afghan citizens who recently arrived in the U.S. If you are interested in taking a pro bono case through the Afghan Asylum Project, please email afghanasylum@tahirih.org.

Tiffany Heah[1]

[1] Attorney at Law, Law Office of Tiffany Heah, APC.

Sweeping Expansion of U.S. Export Controls and Trade Sanctions, by Bob Bowen[1]

The current situation in Ukraine has generated significant changes in U.S. export control laws and U.S. trade sanctions laws over the past few weeks. In particular, the manner in which the U.S. Export Administration Regulations (EAR) and the regulations enforced by the U.S. Office of Foreign Assets Control (OFAC) within the U.S. Department of the Treasury apply to business activities in and with persons and assets in Russia and Belarus has expanded considerably. The EAR, which is enforced by the Bureau of Industry and Security (BIS) within the U.S. Department of Commerce now applies to a broader range of items destined for Russia or Belarus than it previously did. This expanded reach now includes items manufactured outside of the U.S. with components that are subject to the EAR (that is, there has been an expansion of the “foreign direct product rule,” the core set of provisions that have been used to target Huawei in recent years).

There has also been an increase in the restrictions that apply to items subject to the EAR that may be intended for certain end-users and end-uses in Russia and Belarus. With very few exceptions, there are now restrictions on items subject to the EAR that may be destined for the government of Russia or government of Belarus end-users. There are also restrictions on items subject to the EAR going to military end-users in those two countries. In addition to these expanded restrictions, BIS has adopted a “policy of denial” for applications for export licenses that might overcome these expanded restrictions. 

The BIS has also placed a significant number of Russian persons on the EAR Entity List. In general, persons on the Entity List may not receive any items subject to the EAR. In short, concepts of “know your customer” have never been more important.

The BIS has published a useful link to many of these developments.

At the same time, sanctions found in OFAC regulations have likewise been expanded to freeze the assets of numerous persons and organizations in Russia and Belarus. In practice, an OFAC sanction freezes the targeted assets such that persons subject to OFAC regulations (such as U.S. Persons) must not deal in or with those assets. A particular target of recent OFAC sanctions activity has been banking and other financial institutions in Russia and Belarus. Now more than ever, it is crucial that persons subject to OFAC regulations who have business dealings anywhere (and in Russia and Belarus in particular) fully screen and conduct due diligence on all actors in proposed transactions.

It should be expected that OFAC sanctions will continue to expand to other persons and their assets in Russia and Belarus. It is also likely that EAR controls targeting activities involving Russia and Belarus will expand as well, but future EAR controls are likely to be less impactful and pronounced than the EAR controls that have been established over the past weeks.

[1] In-house counsel in San Diego with over 20 years of experience in international trade laws.

List of Companies Operating in Russia

Jeffrey Sonnenfeld, Senior Associate Dean for Leadership Studies & Lester Crown Professor in the Practice of Management at Yale, and his team have prepared a list to track which companies have withdrawn from Russia and which companies have continued to operate in Russia. The list has since expanded to the following five categories, graded on a scale of A-F for the completeness of withdrawal:

Joint Statement by the Group of Seven (G7)

On March 11, 2022, the leaders of the G7 issued a joint statement resolving to support the Ukrainian people against Russia’s aggression in the following manner:

• Deny Russia the Most-Favored Nation status relating to key products;
• Prevent Russia from obtaining financing from leading financial institutions, including the International Monetary Fund, the World Bank and the European Bank for Reconstruction and Development;
• Pressure Russian elites, proxies and oligarchs close to President Putin and other architects of the war as well as their families and their enablers;
• Crack down on evasion and close loopholes to maintain the effectiveness of the restrictions imposed;
• Prevent the spread of misinformation by Russia;
• Deny Russia revenue by imposing import and export restrictions of key goods and technologies on Russia;
• Contain Russian entities that directly or indirectly support the war by restricting access to new debt, equity investments and other forms of international capital.

Cybersecurity

On March 21, 2022, President Biden issued a statement reiterating his warnings about the potential that Russia could conduct malicious cyber activity against the U.S. He urged all American businesses to review and reinforce their cybersecurity defenses. Recommendations by the White House on steps to protect against potential cyberattacks are available here.

The Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) has created the SHIELDS UP program and compiled free cybersecurity services and tools to assist in protecting critical assets. More information relating to the SHIELDS UP program is available here.

ICANN

On February 28, 2022, Mykailo Fedorov, Deputy Prime Minister and Minister of Digital Transformation of Ukraine, wrote a letter to the Internet Corporation for Assigned Names and Numbers (ICANN) requesting that ICANN target Russia’s access to the Internet by revoking specific country-code top-level domains operated from within Russia, arranging the revocation of SSL certificates issued within those domains, and shutting down a subset of root servers located in Russia.

ICANN in its letter dated March 2, 2022 responded by stating that it would not agree to Ukraine’s request because ICANN must “maintain neutrality and act in support of the global internet.” Göran Marby, President of ICANN stated that “Our mission does not extend to taking punitive actions, issuing sanctions, or restricting access against segments of the internet—regardless of the provocations. ICANN applies its policies consistently and in alignment with documented processes. To make unilateral changes would erode trust in the multi-stakeholder model and the policies designed to sustain global internet interoperability.”

Lithuania

According to a social media post on March 3, 2022 by Mayor Remigijus Simasius of Vilnius the capital of Lithuania, renamed the road leading to the Russian embassy to Heroes of Ukraine Street.

“Everyone who goes to the embassy will have to give a thought to the victims of the Russian aggression, and about the heroes of Ukraine”, Remigijus Simasius wrote on his Facebook page.

The unnamed dead-end alley next to the embassy will formally receive this name on Wednesday, changing the address of the embassy, the mayor said. Mail will only be delivered to the embassy if addressed to the new street, he added.

Executive Order on Protecting Certain Property of Da Afghanistan Bank for the Benefit of the People of Afghanistan

On February 11, 2022, President Biden issued an Executive Order (EO) to enable certain U.S.-based assets belonging to Afghanistan’s central bank, Da Afghanistan Bank (DAB) to be used to benefit the Afghan people. The EO will block DAB property held in the U.S. by U.S. financial institutions and require U.S. financial institutions to transfer this property into a consolidated account held at the Federal Reserve Bank of New York. The Biden Administration seeks to facilitate access to $3.5 billion in assets for the benefit of Afghan people and for the future of Afghanistan pending a judicial decision. U.S. victims of terrorism, including relatives of victims who died in the 9/11 attack, have brought claims against the Taliban and are pursuing DAB assets in federal court. Currently, some of these plaintiffs have writs of execution against DAB assets. As such, the court will need to issue a further decision regarding those writs. More information is available here.

Additional Humanitarian Assistance for the People of Afghanistan

On March 31, 2022, the U.S. announced that it is providing nearly $204 million ($134 million from the US Department of State and $70 million from the U.S. Agency for International Development) in additional humanitarian assistance to help the people of Afghanistan, bringing the total amount to more than $720 million since August 2021.

This assistance from the U.S. will support the scaled-up humanitarian response in Afghanistan and neigh-boring countries through independent humanitarian organizations, including the United Nations High Commissioner for Refugees (UNHCR), International Organization for Migration (IOM), United Nations Population Fund (UNFPA), and United Nations Children’s Fund (UNICEF), by funding the efforts and activities outlined in both the 2022 Humanitarian Response Plan for Afghanistan and 2022 Afghanistan Situation Regional Refugee Response Plan. This funding will provide emergency cash, shelter, trauma care and essential health services, water, sanitation and hygiene assistance, protection and gender-based violence services, multisectoral assistance and reintegration assistance to internally displaced and returnee populations in Afghanistan and refugee populations in neighboring countries.

Unilateral Action by the U.S. to Protect the Cultural Heritage of the People of Afghanistan

The U.S. Department of State announced the imposition of unilateral restrictions on the importation of certain categories of Afghan archeological and ethnological materials into the U.S. The import restrictions are intended to prevent illicitly trafficked materials from entering the U.S. market. More information is available here.

On February 25, 2022, President Biden nominated Judge Ketanji Brown Jackson to become the 116th Associate Justice of the U.S. Supreme Court. On April 7, 2022, she was confirmed by the Senate as the first black woman on the U.S. Supreme Court. More information regarding Judge Ketanji Brown Jackson is available here.

The European Commission and the U.S. announced that they have agreed in principle on a new Trans-Atlantic Data Privacy Framework, which will foster trans-Atlantic data flows and address the concerns raised by the Court of Justice of the European Union in the Schrems II decision of July 2020. 

The new Framework marks an unprecedented commitment on the U.S. side to implement reforms that will strengthen the privacy and civil liberties protections applicable to U.S. signals intelligence activities. Under the Trans-Atlantic Data Privacy Framework, the U.S. is to put in place new safeguards to ensure that signals surveillance activities are necessary and proportionate in the pursuit of defined national security objectives, establish a two-level independent redress mechanism with binding authority to direct remedial measures and enhance rigorous and layered oversight of signals intelligence activities to ensure compliance with limitations on surveillance activities. More information is available here.

Executive Order on Ensuring Responsible Development of Digital Assets

On March 9, 2022, President Biden issued an Executive Order for purposes of reducing the risks that digital assets could pose on consumers, investors and business protections; financial stability and financial system integrity; combating and preventing crime and illicit finance; national security; the ability to exercise human rights; financial inclusion and equity; and climate change and pollution. More information is available here.

On March 21, 2022, the SEC proposed rule changes that would require registrants to include certain climate-related disclosures in their registration statements and periodic reports, including information about climate-related risks that are reasonably likely to have a material impact on their business, results of operations or financial condition, as well as certain climate-related financial statement metrics in a note to their audited financial statements. The required information about climate-related risks also would include disclosure of a registrant’s greenhouse gas emissions, which has become a commonly used metric to assess a registrant’s exposure to such risks. More information is available here.

The GCJ—led by the Ambassador at Large for Global Criminal Justice—advises the Secretary of State and the Under Secretary of State for Civilian Security, Democracy, and Human Rights on issues related to war crimes, crimes against humanity and genocide. GCJ helps formulate U.S. policy on the prevention of, responses to, and accountability for mass atrocities. To this end, GCJ advises the U.S. Government and foreign governments on the appropriate use of a wide range of transitional justice mechanisms, including truth and reconciliation commissions, lustrations and reparations, in addition to judicial processes.

On March 17, 2022, Beth Van Schaack, who was a law professor at Santa Clara Law School before joining the faculty at Stanford Law School, was confirmed as Ambassador at Large for Global Criminal Justice. More information is available here.

On February 14, 2022, the U.S. Copyright Office reviewed a 2019 ruling against Steven Thaler, who sought to register a two-dimensional artwork entitled “A recent Entrance to Paradise” (Work). The Work is an AI-Generated art. The U.S. Copyright Office found that it “lacks the human authorship necessary to support a copyright claim” and that Thaler had “provided no evidence on sufficient creative input or intervention by a human author in the Work.” The ruling is available here.

The Summit of the Americas brings together leaders from North, South and Central America and the Caribbean. The Summit and its stakeholder forums promote cooperation toward region-wide, inclusive economic growth and prosperity based on shared respect for democracy, fundamental freedoms, dignity of labor and free enterprise. The Ninth Summit of the Americas will take place in June 2022 in Los Angeles, California. More information is available here.

Starting April 11, 2022, U.S. citizens will be able to select X as their gender marker on their U.S. passport application and the option will become available for other forms of documentation next year. More information is available here.

2022 Hong Kong Policy Act Report

The U.S. State Department submitted a report on conditions in Hong Kong from March 2021 through March 2022 (covered period). According to the report, People’s Republic of China (PRC) authorities took actions that eliminated the ability of Hong Kong’s pro-democracy opposition to play a meaningful role in the city’s governance and effectively criminalized peaceful political expression. The PRC National People’s Congress Standing Committee passed a decision imposing sweeping changes to Hong Kong’s electoral system that blocked participation of political groups not approved by Beijing and greatly diminished Hong Kong voters’ ability to elect representatives of their choice. PRC and Hong Kong authorities targeted selected groups connected with the region’s pro-democracy movement or non-violent political activities with raids, arrests, prosecution and asset freezes. Hong Kong authorities’ continued use of the Law of the PRC on Safeguarding National Security in the Hong Kong Special Administrative Region undermines rights and freedoms including freedoms protected under the Basic Law and the Sino-British Joint Declaration.

Hong Kong Judges and Bar Association Leader Exit in Protest

The President and another member of the UK Supreme Court issued formal notice in March 2022 of their resignation effective immediately as non-permanent judges (NPJ) on Hong Kong’s Court of Final Appeal. According to a BBC report, the UK’s foreign minister supported the judicial resignations in response to China’s attacks in Hong Kong on freedom of speech, press and association under the authority of its 2020 national security law.

Hong Kong’s chief executive, Carrie Lam, and other government officials issued statements interpreting the UK’s action as a decision to withdraw from and discontinue the 1997 agreement between the UK and China, allowing judges from the UK and other commonwealth countries to sit on Hong Kong’s top court. Hong Kong’s bar association issued a public statement on March 30, 2022 encouraging the 14 remaining NPJs, including other judges from the UK, Australia, Canada and New Zealand, to remain and help protect the rule of law and judicial independence. The UK acknowledged that the remaining six UK judges could make their own decisions.

In addition, Paul Harris, the former president of Hong Kong’s 1,500-member bar association, reportedly left Hong Kong hours after the national security police summoned him for questioning for a “potential violation” of the 2020 national security law. Mr. Harris is a human rights lawyer who did not seek re-election after his first term ended in January 2022. More information is available here.

Plastic Packaging Tax

In the UK, the Plastic Packaging Tax came into force on April 1, 2022. Manufacturers or importers of 10 or more tons of plastic packaging may need to register for the tax. The Plastic Packaging Tax is chargeable for each individual finished packaging component. Cellulose-based polymers that have not been chemically modified, such as viscose, will not be treated as plastic for the purpose of the Plastic Packaging Tax. Plastic packaging components containing 20% or more recycled plastic are not chargeable for the Tax. However, this will still be counted towards the 10-ton threshold for packaging. More information is available here.

Digital Markets Act (DMA)

On March 24, 2022, the European Parliament and EU Member States reached a political agreement on the DMA. The regulation is among the first initiatives of its kind to comprehensively regulate the gatekeeper power of the largest digital companies.

The DMA will apply to gatekeepers, companies which create bottlenecks between businesses and consumers, and sometimes even control entire ecosystems, and that are made up of different platform services such as online marketplaces, operating systems, cloud services or online search engines. Gatekeepers will be subject to clearly defined obligations and prohibitions. These are established by reference to the most unfair market practices, or practices that create or strengthen barriers for other companies, with the overall aim of ensuring the contestability of gatekeepers’ digital services. More information is available here.

Sustainable and Circular Textiles by 2030

The EU is proposing rules for a mandatory minimum use of recycled fibers by 2030 and would ban the destruction of many unsold products. The rules seek to contain the release of microplastics and improve global labor conditions in the garment industry. More information is available here.

EU Ecolabel

On March 23, 2022, the EU Ecolabel officially turned 30. There are over 83,000 products across 24 product groups available on the EU market with the EU Ecolabel. The EU Ecolabel logo on products makes it easier for consumers to know that a product or a service is both environmentally friendly and good quality. More information is available here.

49th Session of the UN Human Rights Council (HRC)

The U.S. worked alongside Ukraine and HRC members to establish a Commission of Inquiry to investigate alleged violations and abuses of human rights and violations of international humanitarian law in the context of Russia’s unprovoked war against Ukraine. This is the first ever inquiry on Russia. The U.S. is also a member of the core group on Ukraine’s resolution to counter disinformation. More information on the outcomes of the 49th Session of the HRC is available here.

Plastic Pollution Resolution

On March 2, 2022, Heads of State, Ministers of Environment and other representatives from UN Member States endorsed a historic resolution at the UN Environment Assembly (UNEA-5) in Nairobi to end plastic pollution and forge an international legally binding agreement by 2024. The resolution addresses the full lifecycle of plastic, including its production, design and disposal.

Plastic production has risen exponentially in the last decades and now amounts to some 400 million tons per year—a figure set to double by 2040. Inger Andersen, Executive Director of the UN Environment Programme (UNEP), said the agreement is the most important international multilateral environmental deal since the Paris climate accord. More information is available here.

United Nations Conference on Trade and Development (UNCTAD)

On March 3, 2022, UNCTAD released the Investment Policy Monitor (Special Issue) on Investment Policies in LDCs—trends since the LDC IV Conference. The Monitor shows that since 2011, least developed countries (LDCs) have been dynamic reformers when it comes to investment policy, adopting many reforms aimed at opening their economies to foreign direct investments (FDI), improving investor treatment and protection guarantees and facilitating investment operations.

Over 80% of the investment policy measures adopted by LDCs in the period were more favorable to investment, confirming LDC commitment to enhancing productive capacities by creating conditions for attracting investments and promoting private sector development. Around half of the investment policy measures concerned specific sectors, with extractive industries accounting for the lion’s share of the sectoral measures, and about one in ten measures were targeted specifically to investment in sectors related to sustainable development goals (SDGs).

Since 2011, LDCs also concluded 92 bilateral investment treaties (BITs) and became party to 10 regional agreements with investment provisions. LDCs’ participation in international investment agreements thus followed the global trend, with a shift away from bilateral towards regional investment rulemaking.

Despite those efforts, FDI inflows to these countries have been underwhelming, pointing to the need to continue creating a conducive policy environment for investment in productive capacities, but also address other fundamental aspects of the investment environment, such as infrastructure and skills gaps. Actions to modernize investment promotion and facilitation and target SDG-relevant investment should also be pursued. These tasks cannot be achieved unless development partners cooperate with LDCs to tackle institutional and capacity constraints. The private sector, including international investors, can also be encouraged to commit resources and contribute expertise to the effort, collaborating with relevant national government institutions in a spirit of shared responsibility.

Global Partnership for Action on Gender-Based Online Harassment and Abuse (Global Partnership)

During the 66th UN Commission on the Status of Women, the U.S. launched the Global Partnership jointly with Australia, Denmark, the Republic of Korea, Sweden and the UK. The Global Partnership is intended to bring together countries, international organizations, civil society and the private sector to better prioritize, understand, prevent and address the growing scourge of technology-facilitated gender-based violence. The 2022 Roadmap for the Global Partnership is available here.

On March 31, 2022, Ministers and high-level representatives from OECD’s 38 member countries and the EU, including Bulgaria, Croatia, Peru and Romania committed in a form OECD Declaration to intensify their work on climate and the environment including curbing biodiversity loss, addressing plastic pollution, aligning finance with environmental objectives and accelerating climate change action with a view to keeping the 1.5 degrees Celsius temperature rise limit within reach. A copy of the complete declaration is available here.

On March 4, 2022, the United Arab Emirates (UAE) was added to the list of jurisdictions under increased monitoring (Grey List) by the FATF. The grey list typically includes countries with gaps in their anti-money laundering or financing of terrorism regimes, but where commitments have been made for swift resolution of these gaps. From 2020 onwards, the UAE demonstrated significant progress and commitment at the highest level in its fight against money laundering and the financing of terrorism. Financial institutions that operate in a grey-listed country would most likely deal with increased compliance costs as correspondent banks increase their level of due diligence and monitoring. The list of jurisdictions under increased monitoring is available here.

What Conduct in the War in Ukraine Might be Subject to Charges of War Crimes

By T. Sean Butler[3]

Wars involve killings and deaths. Not all killings and deaths committed in war are war crimes. The invasion of Ukraine by Russian military forces has exposed the world to horrendous images of destruction as part of the military campaign. What types of conduct might be considered war crimes?

The 1998 Rome Statute of the ICC includes definitions of the crimes of genocide (Article 6), crimes against humanity (Article 7), and war crimes (Article 8.) Those definitions are widely regarding as jus cogens standards in international law.

The crime of aggression was always intended to be part of the Rome Statute; however, the definition of war crimes was added by amendment effective in 2017. (Article 8 bis.)

For purposes of the armed conflict in Ukraine, following the February 24, 2022 crossing of Russian military forces into the territory of Ukraine, the conflict would be considered an international character, and the definitions of war crimes applicable to that type of conflict are set forth in Article 8, paragraph 2(a) and 2 (b.) The definitions in Article 8, Paragraphs 2 (c), (d), (e) and (f) relate to conflicts not of an international character and will not be discussed.

There is a long list of types of conduct that can form the factual bases for charges of war crimes. Click here for the definition of “war crimes” under Art. 8, Paragraph 2 of the Rome Statute. Article 8, Paragraphs 2(e)(xiii) to 2(e)(xv) were amended by resolution RC/Res.5 of 11 June 2010 (adding paragraphs 2 (e) (xiii) to 2 (e) (xv)).

News reports sometimes include credible reports of some of the types of conduct included in the definition of war crimes, such as intentional attacks on civilian populations and objects, attacks on hospitals, transferring populations by requiring those fleeing to go only to Russia, pillage, rape, denial of objects of survival and impeding relief supplies. Those might be bases for investigations. The standard for criminal convictions includes authentication of evidence at trial, a much higher standard than “credible reports.”

There are several Articles of the Rome Statute related to responsibility of superiors for conduct of those under their command. Click here for Article 27 (Irrelevance of Official Capacity), Article 28 (Responsibility of Commanders and Other Superiors), and Article 33 (Superior Orders and Prescription of Law) of the Rome Statute.

Russia is not a party to the Rome Treaty. Ukraine submitted two declarations granting jurisdiction to the ICC, the second for alleged crimes committed on the territory of Ukraine since February 2014. The ICC lacks its own enforcement personnel and relies on the cooperation of nations to assist in taking custody of those accused of crimes by the ICC. It might be difficult for the ICC to take custody of Russian leaders accused of war crimes. There are allegations of conduct which, if proved with competent evidence, would constitute war crimes.

There have also been claims of genocide. To prove genocide there is an additional element of intent to destroy, in whole or in part, certain protected groups. Click here for Article 6 (Genocide) of the Rome Statute.

Pre-invasion, Putin claimed that Ukraine was committing genocide against the pro-Russian separatist in Eastern Ukraine. The International Court of Justice (ICJ) found that it had jurisdiction over the claim brought by Ukraine based on the Genocide Convention and ordered the cessation of military operations.

While not included in the claims submitted to the ICJ, Ukraine now claims Russia is committing genocide by attempting to destroy Ukraine as a separate nationality. This is factually based on statements that Ukraine and Russia are one nation, and the focus of attacks on parts of the Ukrainian population that is not in the predominantly Russian speaking areas.

[3] Attorney-at-Law, Los Angeles; Chair, International Criminal Court Alliance

Report of ICC Activity from January to March 2022

By Radulf Mohika[4]

ICC Marks International Women’s Day: On March 8, 2022, the ICC marks International Women’s Day in support of global action to advance gender equality and the empowerment of all women and girls. The ICC promotes women’s rights and considers gender perspectives through its work. More information is available here.

New Deputy Prosecutors: On March 7, 2022, Mr. Mame Mandiaye Niang and Ms. Nazhat Shameem Khan assumed office as Deputy Prosecutors of the International Criminal Court for a nine-year term. The ceremony can be viewed here.

2022 International Day against the Use of Child Soldiers: On February 14, 2022, the Prosecutor commemorated the International Day against Child Soldiers because tens of thousands of “children serve as soldiers, cooks, or slaves, including sex slaves.”

Ukraine: Ukraine is not a State Party to the Rome Statute but accepted the Court’s jurisdiction pursuant to article 12(3) of the Rome Statute for alleged crimes against humanity and war crimes committed by Russian Federation and Donetsk People’s Republic and Luhansk People’s Republic terrorist leaders against Ukraine from November 21, 2013 to February 2014. Ukraine’s second declaration extended the investigation from February 20, 2014 onwards. In March 2022, the ICC received referrals from 41 State Parties that allowed the ICC to accelerate an investigation on the situation in Ukraine, pursuant to Rome Statute article 14. On March 16, 2022, the Prosecutor visited Ukraine and Poland, meeting with Dmytro Kuleba (Minister of Foreign Affairs) and Iryna Venediktova (Prosecutor-General of Ukraine), and videoconferencing with President Volodymyr Zelensky to accelerate the ICC’s investigation of war crimes, crimes against humanity or genocide committed in Ukraine. Additionally, Prosecutor Karim met with men, women and children who are refugees in Medyka, Poland. He wants to send a clear message: “If attacks are intentionally directed against the civilian population … [or] against civilian objects, including hospitals: that is a crime that my Office may investigate and prosecute.” The case has been assigned to Pre-Trial Chamber II. A dedicated portal to contact investigators has been developed and more information is available here.

Bangladesh. On July 4, 2019, the Pre-Trial Chamber III authorized the investigation of crimes against humanity on the ground of ethnicity and/or religion against the Rohingya population in Myanmar from October 9, 2016 to present. Although Myanmar is not a State Party to the Statute, the ICC has jurisdiction because the Bangladesh (a State Party) accepted Myanmar’s refugees.

On February 27, 2022, the Prosecutor visited Bangladesh to accelerate the investigation. He met with the “Prime Minister of Bangladesh, Sheikh Hasina; Minister of Law, Justice and Parliamentary Affairs, Mr. Anisul Huq; State Minister for Foreign Affairs, Mr. Abdul Momen; Foreign Secretary, Mr. Masud Bin Momen; and Secretary for Maritime Affairs, Rear Admiral (retd.) Khurshed Alam. The meeting can be heard here.

Central African Republic (CAR): The trial of Patrice-Edouard Ngaïssona, senior leader and “National General Coordinator,” and Alfred Yekatom, former Chief Corporal in the Forces Armées Centrafricaines (FACA, the CAR armed forces), as well as member of parliament in the CAR, for war crimes and crimes against humanity, including directing attacks on civilian populations, opened on February 21, 2021 in Trial Chamber V. The case is ongoing. On December 8, 2021, Pre-Trial Chamber II confirmed some charges and rejected others in the case against Mahamat Said Abdel Kani, Seleka commander. Charges that he was either a direct co-participant or ordered or induced crimes against humanity as part of the Central Office for the Repression of Banditry in Bangui (CAR) between April 12, 2013 and August 30, 2013 were confirmed, while charges of crimes against humanity and war crimes allegedly committed at the Extraordinary Committee for the Defense of Democratic Achievements in Bangui (CAR) between mid-September 2013 and November 8, 2013 were rejected. Leave to appeal may be requested and the time for requesting such has not passed. The trial is scheduled to open on September 26, 2022. More information is available here.

On March 14, 2022, the fourth suspect, Maxime Jeoffroy Eli Mokom Gawaka (“Mr. Mokom”), former National Coordinator of Operations of the Anti-Balaka, was arrested and appeared before Pre-Trial Chamber II on March 22, 2022. Mr. Mokom was the National Coordinator of Operations of the Anti-Balaka who allegedly committed crimes against humanity and war crimes against the Seleka, a predominantly Muslim population. These crimes are alleged to have occurred in Bangui, Bossangoa, the Lobaye Prefecture, Yaloké, Gaga, Bossemptélé, Boda, Carnot and Berberati, between December 5, 2013 and December 2014. The opening confirmation of the charges in scheduled for January 31, 2023. More information is available here.  

Darfur, Sudan: On April 5, 2022 at 17:00 (The Hague local time), the Prosecutor will hold a press conference regarding the opening of the trial in Trial Chamber I against Ali Muhammad Ali Abd-Al-Rahman (Ali Kushayb), leader of the Militia/Janjaweed, who is accused of 31 counts of war crimes and crimes against humanity allegedly committed between August 2003 to April 2004. On July 9, 2021, the charges were confirmed by the Pre-Trial Chamber II. More information is available here. You can listen to the trial opening here and the Prosecutor’s statement here.

Republic of Georgia: On January 27, 2016, the ICC Pre-Trial Chamber opened an investigation into the situation in Georgia. On March 10, 2022, the ICC issued an arrest warrant against Mikhail Mayramovich Mindzaev (alternatively spelled “Mindzayev”), Minister of Internal Affairs of the de facto South Ossetian administration (2005-2008), Gamlet Guchmazov (alternatively spelled “Hamlet” and “Kuchmazov”), Head of the Preliminary Detention facility of the de facto Ministry of Internal Affairs of South Ossetia and David Georgiyevich Sanakoev (known as “Ombudsman”), de facto Presidential Representative for Human Rights of South Ossetia, for war crimes committed in South Ossetia, Georgia, specifically the “unlawful confinement, hostage-taking, ill-treatment and subsequent unlawful transfer of ethnic Georgian civilians perpetrated by de facto South Ossetia” from July 1 to October 10, 2008. It is estimated that 31 detainees were subject to beatings, 30 subjected to unlawful labor (i.e.. burying decomposing and mutilated soldier corpses), 31 were severely beaten, 10 were tortured, 171 were subject to inhumane conditions and 110 lawful residents were expelled from South Ossetia. More information is available here.

Kenya: On September 30, 2021, Trial Chamber III set the opening of the trial of Paul Gicheru, a lawyer based in Kenya, who is accused of offenses against the administration of justice by corruptly influencing witnesses, for February 15, 2022. On March 24, 2022, the Prosecutor completed his case against Gicheru in which the defense has 10 days to present evidence. More information is available here.

Mali: The trial of Al Hassan Ag Abdoul Aziz, alleged member of Ansar Eddine (de facto chief of police) and involved in the Islamic court’s work. On February 8, 2022, the Legal Representative of Victims made opening statements and two witnesses testified. The defense will make its opening statements later in 2022. Al Hassan Ag Abdoul Aziz is accused of crimes against humanity and war crimes, consisting of crimes of sexual violence in Mali between April 2012 and January 2013.

Northern Uganda: On February 4, 2021, the Trial Chamber IX found Dominic Ongwen, Brigade Commander of the Sinia Brigade of the Lord’s Resistance Army (LRA), guilty of 61 crimes against humanity and war crimes committed in Northern Uganda from July 1, 2002 to December 31, 2005. From February 8-18, 2022, the ICC Appeals Chamber considered Dominic Ongwen’s 90 grounds of appeal against Trial Chamber IX. 

Bolivia. On February 14, 2022, the Prosecutor concluded that the preliminary examination did not warrant an investigation under the Court’s jurisdiction. The report can be found here.

Columbia. On February 17, 2022, the Prosecutor and President Iván Duque signed a “Cooperation Agreement” to accelerate Columbia’s efforts to “administer justice for the most serious crimes of concern to the international community as a whole.” The agreement can be found here. The preliminary examination regarding alleged war crimes committed since November 1, 2009 and alleged crimes against humanity committed since November 1, 2002 in Colombia is on hold pursuant to the October 28, 2021 agreement between the Prosecutor and the government of Colombia based on the understanding that domestic authorities are able and willing to proceed with investigations and prosecutions.

Chambers Practice Manual (5th revision). During the Judge’s retreat in November 2021, the Chambers Practice Manual was updated to be consistent with the ICC’s proceedings for prompt transmission of records from the Pre-trial Chamber to the Presidency and to the Trial Chamber for early trial preparation. It also adopted “Directions for the Conduct to Proceeding” guidelines for trial openings, order of evidence and witness testimony. Moreover, it adopted an “A-B-C Approach” classifying witnesses. The manual can be found here.

OnGoing Court Proceedings: In the first quarter of 2022, there were ongoing court proceedings (trials, confirmations of charges and status conferences) for the cases of: Al Hassan (Mali), Courtroom III; Yekatom and Ngaissona (Central African Republic), Courtroom I; Gicheru (Kenya), Courtroom III; Ongwen  (Uganda) Appeal Chamber; confirmation of charges on Said (Central African Republic,-some charges confirmed, some rejected). A calendar of proceedings is available on the ICC website, at the bottom of the entry page.

Preliminary Examinations: There are ongoing preliminary examinations regarding:

• Alleged crimes against humanity committed in the context of the September 28, 2009 events in Conakry, Guinea;
• The preliminary examination concluded with a determination to request authorization from the Pre-Trial Chamber to open an investigation regarding Nigeria and Boko Haram;
• Alleged crimes committed from second situation, a self-referral made by Venezuela (Venezuela II) on February 14, 2020; and
• Alleged crimes against humanity committed in Bolivia in August 2020. On February 14, 2022, the Prosecutor concluded that the preliminary examination did not warrant an investigation under the Court’s jurisdiction. The final report can be found here.

On February 17, 2022, Prosecutor and President Iván Duque signed a “Cooperation Agreement” to accelerate Columbia’s efforts to “administer justice for the most serious crimes of concern to the international community as a whole.” The agreement can be found here.

[4] Undergrad at University of Southern California and part of the International Criminal Court Alliance in Los Angeles.

ICSID was established in 1966 and is the only multilateral institution with a specific mandate to facilitate the peaceful resolution of international investment disputes under treaties, contracts and investment laws. ICSID offers rules of procedure that are specifically designed for such disputes.

On March 21, 2022, Member States of ICSID approved a comprehensive set of amendments to ICSID’s flagship rules for resolving disputes between foreign investors and their host States. The 2022 ICSID Regulations and Rules come into effect on July 1, 2022 and the amended rules include:

• Broader access to ICSID’s dispute resolution rules and services where one or both disputing parties is not an ICSID Contracting State.
• Greater transparency in that public access to ICSID orders and awards will be enhanced to promote consistency in tribunal decision making and at the same time specify that protected personal information cannot be publicly disclosed.
• Disclosure of third-party funding.

More information is available here.

We are now accepting applications to join the 2022-2023 Executive Committee. This is a great opportunity for you to interact with other ILS members, including our foreign bar friends, and create lifelong friendships. We are always looking for individuals who are passionate about international or immigration law. Click here for more information, and here to download the application form.

Chair: Tiffany Heah

Vice Chairs:

• Richard Bainter
• Cathy Carlisle

Secretary: Melissa Allain

Treasurer: Agustín Ceballos

ILS NEWS:

• Cathy Carlisle (Editor-in-Chief)
• Melissa Allain (Managing Editor)

Members:        

• Daniel Alef
• Robert E. Lutz
• Hon. James P. Kleinberg (Ret.)
• Payal Sinha
• Bob Bowen
• Eric Husby

ILS Representative: Enrique Hernandez

Immediate Past Chair: William Tolin Gay

Section Manager: Mycah Hetzler

Administrative Specialist: Joshua Caldwell

On February 21, 2022, ILS signed the Friendship Agreement with the Kanagawa Bar Association via a virtual signing ceremony which was led by Yuta Muramatsu, Vice Chair of the International Exchange Committee, KBA and Harumi Hata, Co-Chair of the Foreign Bar and External Relations Committee.

Jeremy Evans, CLA President; Oyango Snell, CLA CEO; Tiffany Heah, ILS Chair; President Hiroyuki Futagawa, KBA President; and Toshiyuki Takaoka, Chair of the International Exchange Committee, KBA, were each given an opportunity to give brief remarks prior to the signing of the Friendship Agreement.

Effective April 1, 2022, President Toshiyuki Takaoka is the new KBA President and we look forward to working with him and his team to foster a closer friendship between our organizations.

ILS sponsored or co-sponsored the following live, webinar events during the first quarter of 2022. All programs are available for viewing in the CLA programs catalog.

Cannabis and Hemp: Opportunities and Pitfalls for the Foreign Investor

This webinar discussed the cultivation and processing, potential uses and current legal status of cannabis and hemp. The second part of the webinar discussed investment opportunities and potential pitfalls for immigrants.

Global Commercial Leasing: Beginner’s Guide to Commercial Real Estate Leasing in Japan

Topics included: lease economics, lease registration, assignment & subletting, landlord remedies, tenant remedies for landlord defaults, lease exit strategies, typical security deposit requirements, formalities of lease execution, relevant tax issues and extension protocols. Speakers: Winnifred Ward and Nanako Tamaoki.

Model Contract Clauses to Protect Workers’ Human Rights in Supply Chains

This webinar presented a set of model contract clauses and a responsible purchasing code of conduct to better protect workers’ human rights in supply chains. The contract clauses and the buyer code can be included in international supply agreements between purchasing firms and their suppliers. The contract clauses are designed to improve the social and human rights performance of international supply contracts. They enable companies to be more closely aligned with the UN Guiding Principles on Business and Human Rights and the OECD guidance for multinational enterprises. They also facilitate compliance with the emerging EU legal requirements pertaining to human rights due diligence.

CLA and leading arbitration institutions and organizations from around the world conducted a week-long series of programs celebrating international arbitration in California. Speakers included representatives from the American Arbitration Association/International Centre for Dispute Resolution, Arbitral Women, Asia International Arbitration Centre, California Arbitration, California Lawyers Association, Chartered Institute of Arbitrators—North American Branch, College of Commercial Arbitrators, CPR International Institute for Conflict Prevention & Resolution, Hong Kong International Arbitration Centre, ICC Court of Arbitration, JAMS, Japan Commercial Arbitration Association, Korea Commercial Arbitration Board International, London Court of International Arbitration, Shenzhen Court of International Arbitration, Silicon Valley Arbitration & Mediation Center, Singapore International Arbitration Centre, Straus Institute/Pepperdine University and the University of Southern California.

The program was a huge success with more than 1,250 attendees from 80 countries and 30 states. Topics discussed during the week-long program include the following:

• An International Arbitration Primer: Why Arbitrate International Disputes?
• Film, Television and Entertainment Disputes—Developments and Trends.
• The 2021 ICDR International Mediation Rule Amendments and Other International Mediation Developments.
• Analyzing the ICDR’s Forthcoming Tribunal Secretary Guidelines.
• Surfing the Rising Waves of Arbitration in Japan and California.
• Re-imagining International Commercial Arbitration Over the Next 20 Years: A California Perspective.
• Building a Better International Arbitration—A California Corporate Counsel’s Perspective.
• Protecting Your Interest Through Interim Relief from Mainland Chinese Courts.
• Looking Across the Pacific—California International Arbitration and Asia.
• The Pacific Shift: Has International Arbitration’s Center of Gravity Moved?
• Top 10 Tips on How to Better Match the Arbitration Process with Businesses’ Expectations.
• Islamic Finance Banking and Arbitration.
• 28 U.S.C. Section 1782: Why Have the Circuits Split and What do Practitioners Need to Know?
• Harnessing Global Change to Propel Diversity in International Arbitration: New Initiatives and Opportunities.
• Saving Cost and Time in International Arbitration through Innovative Process Design.

Topics to be covered include lease economics, lease registration, assignment and subletting, landlord remedies, tenant remedies for landlord defaults, lease exit strategies, typical security deposit requirements, formalities of lease execution, relevant tax issues, extension protocols and local cultural norms that may affect negotiations.

ILS, in collaboration with the Los Angeles County Bar Association (LACBA), is hosting a virtual networking mixer on June 1, 2022 at 5 p.m. Network, mingle and generate business and friends.  Most importantly—have fun.  Feel free to bring your favorite after-work beverage (beer, wine, cocktail or anything else) if you are done working. We hope that you will join us. Click here for the registration link.

This year, CLA will be hosting its Annual Meeting at the San Diego Hilton Bayfront from September 15, 2022 to September 17, 2022. In the past, we have received visiting delegations from Japan, France, Malaysia, Mexico and Vietnam and we hope to have a large and diverse group of foreign attorneys attend this year. More to be revealed.

The Tahirih Justice Center is a national nonprofit that serves immigrant survivors fleeing gender-based violence since 1997. By combining free legal services and social services case management with bridge-building policy advocacy and research-based training and education, Tahirih advocates both for individual immigrant survivors and to change the systems that are complicit in the conditions of their oppression. Due to the current situation in Afghanistan, Tahirih’s Afghan Asylum Project was launched to support Afghan citizens who recently arrived in the U.S.. Tahirih’s dedicated, toll-free helpline connects Afghans seeking assistance with information, resources and local organizations who are providing on-the-ground support. In addition, trauma-informed Tahirih staff are conducting legal screenings with anyone presenting gender-based asylum claims for potential legal representation by Tahirih staff and Tahirih’s pro bono network.

If you are interested in taking a pro bono case through the Afghan Asylum Project, please email: afghanasylum@tahirih.org.

Please take a look at the links below:

• Video of Tahirih’s CEO discussing its Afghan Asylum Project.
• Video of initial Afghan asylum training for Tahirih pro bono attorneys.
• Video of Tahirih’s Afghan asylum screening training and the trauma informed approach.

Stand Up For Ukraine is a global campaign launched by European Commission President Ursula von der Leyen and Prime Minister of Canada Justin Trudeau, in partnership with international advocacy organization Global Citizen, to help cater to the needs of internally displaced people and other refugees.

The campaign seeks to mobilize governments, institutions, artists, companies and individuals to direct funding in support of humanitarian efforts in Ukraine and in neighboring countries.

You can take part in a major Social Media Rally on April 8, 2022 to inspire world leaders to provide urgent refugee relief.

The campaign will culminate in a pledging event on April 9, 2022, co-hosted by President von der Leyen and Prime Minister Trudeau. More information about the pledging event is available here.

If you are looking for other ideas about how you can help in a meaningful way, read on and click here.

This fundraiser will provide help to refugees and aid humanitarian efforts. The fund will benefit Flexport.org and Airbnb.org. Flexport.org is organizing shipments of relief supplies to refugee sites in Poland, Romania, Hungary, Slovakia and Moldova. Airbnb.org is providing free, short-term housing to refugees fleeing Ukraine. According to an update on March 28, 2022, Flexport has delivered several plane loads of critical relief aid to refugee sites, including emergency relief beds, surgical equipment to Ukraine, blankets and hygiene kits to Poland, as well as medical equipment, including medical grade personal protective equipment to Moldova. More information is available here.

Airbnb is funding short term housing for up to 100,000 people fleeing Ukraine. You can help by offering temporary stays for free or at a discount through Airbnb.org or donating to fund stays. More information is available here.