By Thea McDonald

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North Korea Tests Intercontinental Ballistic Missiles Potentially Capable of Reaching Any Location in Continental U.S.

Tensions between North Korea and the United States rose over the last year as the nations’ leaders exchanged threats and snarky comments. As American lawmakers considered options for managing the escalating threat and warned that initiating nuclear action against this rival could lead to grave consequences, North Korea built and tested its arsenal. During 2017, North Korea conducted 16 tests that included a total of 23 missiles. The 23rd missile, a Hwasong-15 tested near the end of November, reached an altitude of 2,800 miles, the highest altitude any North Korean missile has ever reached. According to CNN, KCNA, North Korea’s state-run news outlet reported that this missile is capable of reaching any location on the U.S. mainland and “meets the goal of the completion of the rocket weaponry system development.” This “successful” test spurred the United Nations Security Council to approve sanctions against the aggressor that limit the amount of refined oil North Korea can import and scrutinize shipping into and out of the country.

ISIS Defeated in Syria and Iraq

ISIS has terrorized parts of the world for years. Finally, in 2017, an international coalition took control of two key ISIS strongholds, Raqqa in Syria and Mosul in Iraq. According to U.S. News & World Report, 35,000 ISIS fighters held more than 17,000 square miles in the two states in January of 2017; by December, an estimated 1,000-3,000 fighters occupied a mere 2,000 square miles. This success came after months of fighting in both cities – fighting that killed as many as 11,000 civilians in Mosul alone. While much of the world celebrates the successes against the terrorist group, intelligence officers worldwide remain concerned about future potential ISIS-inspired “lone-wolf” attacks similar to those that have previously occurred in the U.S. and Europe.

Ethnic Cleansing in Myanmar

The Rohingya Crisis worsened this year as more than 6,700 Rohingya were killed, and as many as 2,300 died of starvation and other nonviolent causes, between August and September at the hands of the Myanmar government. This ethnic group has faced severe violence and brutality from their predominantly Buddhist government and its military, which have attempted to disguise the atrocities against the Rohingya as responding to internal terrorist attacks. In fact, the Myanmar government invoked sovereignty, which the New York Times describes as “the single biggest loophole in international laws and norms against atrocities,” as its defense against other world governments organizing action. As government leaders across the world, including U.S. Secretary of State Rex Tillerson, called for the Myanmar government and military to halt the atrocities the have led more than 600,000 Rohingya to flee Myanmar for Bangladesh, sovereignty has “prevailed” for the Myanmar government by allowing Myanmar to “act within their borders and protect [its] interests.”

By Maura Sokol

On February 28th, the Georgetown Law Human Rights Institute hosted a lecture by Ambassador Stephen J. Rapp, the Robert F. Drinan, S.J., Visiting Professor of Human Rights for 2017-2018. Ambassador Rapp was the United States Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice under President Obama from 2009 to 2015. In the position, Ambassador Rapp traveled the world extensively and worked with the Secretary of State to formulate US policy regarding the prevention and accountability of mass atrocities.

Ambassador Rapp began his lecture by acknowledging the potential tension between criminal justice and human rights but asserted that the effective pursuit of these two concepts is essentially the same and needs to be the same. In both the United States and in international law, the criminal justice process is only successful when it works with the trust of victims and victimized communities. Criminal prosecution efforts must reinforce norms against violence and abusive conduct.  

Ambassador Rapp also explained some of the history behind international criminal prosecutions and human rights. Historically, national leaders did not have to worry about facing consequences for their crimes due to the concept of sovereignty; even if they violated international treaties or harmed individuals across borders, this concept kept them largely safe from international action. Ambassador Rapp asserted that this all began to change at the Nuremberg trials after World War II. The key to Nuremberg, he says, was individual responsibility, the prosecution of men and not states or entities. This allowed for the international community to hold individuals accountable for war crimes without intruding on a nation’s sovereignty.

Another key to the Nuremberg trials was that they were organized by all of the world’s great powers at the time, and justice was not dictated by global politics. The support or lack thereof from all global powers in international criminal justice has had a huge impact on its success or failure.  This helps to explain why the Nuremberg efforts ended with the beginning of the Cold War, and not again until the end of the Cold War was there a global effort to hold individuals accountable for international crimes. This effort began again with a number of tribunals, most notably the tribunals for Yugoslavia and Rwanda enacted through the United Nations Security Council.

A third element that Ambassador Rapp believes was essential to Nuremberg, Yugoslavia, Rwanda, and other tribunals, was extensive investigations and fact-finding missions. The evidence gathered by these inquiries, sometimes gathered while the crimes were being committed, was essential to the pursuit of international criminal justice. It is useful on the one hand for linking crimes at a low level to the powerful men at the top who keep their hands clean but orchestrate the crimes. It is also useful because it provides the “big picture”, which is important to establish the required proof of context and intent for international crimes. 

The global picture is very different in 2018: many of the tribunals have closed or are in their final stages, the International Criminal Court is on shaky ground, and gaps in justice have become more apparent. The worst crimes being committed today are in places where international courts do not have jurisdiction, and Russia and China will veto efforts to create jurisdiction. Where Russia once only used their Security Council veto strategically, Russia now uses the veto power to undermine efforts to promote human rights everywhere. China argues that atrocities by countries are internal affairs. Countries that have long respected the rule of law are moving in the other direction, and increasingly leaders are elected who demonstrate a disrespect for human rights.

So, what is positive and what is possible in this new world? For one, the United Nations Human Rights Council has taken up many causes after action is blocked in the Security Council. These efforts have been successful for Syria, South Sudan, Myanmar, and many others. There are some vast differences between “soft” human rights law and the process of prosecuting international crimes, and progress must be made in efforts to bridge these two processes. Evidence collection is still crucial, and there are too many insufficiencies in inquiries and fact-finding missions that must be corrected. However, in the absence of the support that was once there from some of the great powers, if victims take up the cause and have the evidence, it is possible to build the support on the international level.
By Xiaoyi Wang

Picture: Globe License: Public Domain

In 2017, because of the changes in administration, environmental enforcement policies around the world have changed.
United States of America
In the United States, the Trump Administration has brought uncertainty to the US enforcement picture. All enforcement constituencies (state agencies and environmental groups) are still assessing what roles and strategies to take as directional shifts at the federal level will likely influence responses by states and NGOs. The shift of administration led to EPA enforcement moving back to the "traditional" environmental programs – air, water, waste.
European Union
The European Commission has conducted a broad EU Environmental implementation review (EIR). The EU also adopted new rules (Dec. 2016) for member states to reduce air pollution by primary particulate matter, sulphur dioxide, nitrogen oxides, ammonia and volatile organic components. In addition, the EU has set out environmental plans and proposed initiatives to achieve their 2020 goals.
China has implanted tougher environmental policies in 2017, a great expansion under President Xi’s “War on Pollution” initiative. In 2017, China also shut 27 coal mines in Shanxi and shutdown responsible corporate actors around China to control air pollution.
The Paris Climate Agreement
The Paris Agreement is an agreement within the United Nations Framework Convention on Climate Change (UNFCCC) dealing with greenhouse gas emissions mitigation, adaptation and finance starting in the year 2020. President Trump announced in June that the United States will withdraw from the Paris Agreement. The Trump administration has made it abundantly clear that fighting climate change is, at best, a low priority.  Many are unsure whether the Paris Agreement framework will still work if the United States indeed withdraws from the agreement. In accordance with Article 28 of the Paris Agreement, the earliest possible effective withdrawal date by the United States cannot be before November 4, 2020, four years after the Agreement came into effect in the United States and one day after the 2020 U.S. presidential election.
The Montreal Protocol on Substances that Deplete the Ozone Layer (the Montreal Protocol)
The Montreal Protocol celebrated its thirty years on September 16, 2017. After thirty years of enforcement, the treaty has been ratified or accepted by all 197 UN member states. As one of the most successful and effective environmental treaties ever negotiated and implemented, the Montreal Protocol has helped reduce the depletion of the ozone layer by about 20 percent from 2005 to 2016.

By Trevor Schmitt

Picture: Globe License: Public Domain

2017 Cybersecurity Statistics

As expected, 2017 brought more cybersecurity incidents than any previous year. Apart from a reduction in the average cost to organizations for each lost or stolen data record (down from $158 in 2016 to $141 in 2017), the social and economic costs of cybersecurity vulnerabilities rose significantly across the board. Here are the numbers:

  • In the first half of 2017, over 900 data breaches led to almost 2 billion compromised data files, an increase of 164% from the last six months of 2016. (link)
  • By the end of 2017, the Identity Theft Resource Center and CyberScout reported a record year-end high of 1,579 record breaches. This represents an overall increase of 44% from 2016. (link)
  • These breaches largely stem from an uptick in cyber-attacks targeting businesses, climbing from 82,000 in 2016 to nearly double that figure at 159,700 in 2017. This increase is, in part, due to the rise of mass ransomware-based attacks. (link)
  • In the United States alone, 16.7 million U.S. citizens were subject to identity fraud in 2017, an 8% increase from 2016. (link)
  • Worldwide spending on cybersecurity rose 7% to a record setting high of $86.4 billion in 2017 compared to 2016. (link)

Despite the persuasiveness of these statistics, not all cyber-incidents are created equal. In addition to the sheer increase in overall cyber-attacks, 2017 saw some of the most devastating single-origin incidents in terms of both geographic reach and overall costs.

Major Cyber-Attacks

While firms spent massive amounts of resources attempting to reduce their cybersecurity vulnerabilities, cybercriminals spent 2017 finding and refining innovative and powerful ways to extort their victims at scale. The global criminal hacking community (including certain nation-states) used these new methods to carry out last year’s largest breaches. A few examples:

  • WannaCry – In May, the WannaCry ransomware infected over 150 countries worldwide. The ransomware, built using leaked U.S. Intelligence spyware, targeted businesses running outdated Windows software. Once the ransomware infected a system, the hackers demanded money, most often in the form of the cryptocurrency, to unlock the system’s files. An estimated 300,000 systems were infected, including hospitals, car companies, and public utilities. In December, U.S. officials placed blame on North Korea for the attack.
  • NotPetya – Just a month after WannaCry, in June, a malware dubbed “NotPetya” began infecting businesses across the globe. Though initially targeting Ukrainian businesses, the malware spread to multiple major global business including several advertising, shipping, and energy giants. In early September, Fedex claimed to have faced losses of $300 million as a result of the attack. The U.S. recently announced that it believe Russia was responsible for the attack.
  • Equifax – In September, major U.S. credit reporting agency Equifax announced that criminal hackers leveraged vulnerabilities in open source code used by the company to steal information on 145 million U.S. Citizens. Although less globally significant than WannaCry and Notpetya, the Equifax breach is significant because the records involved contained powerfully sensitive information.

In response to a growing number of attacks connected to nation-states, 2017 saw some experts call for an international response to the global cybercrime crisis. Despite important steps forward, efforts largely failed to coordinate agreement on a viable international cyber law regime.

[Inter]National Cyber Law

Hopes were set high for international cooperation following the release of the Tallinn Manual 2.0, in early 2017.  The manual, a collective effort of internationally renowned cybersecurity experts, serves as a cyber resource to international actors. Specifically, the manual addresses the international norms of state-sponsored cyber operations as well as more common cyber incidents.

Despite the early success of the Tallinn Manual 2.0, 2017 ended without international agreement. In Summer 2017, The U.N. sponsored Government Group of Experts (GGE) announced they had failed to reach a consensus on the status of international laws and norms in cyberspace. The announcement marked the unsuccessful end to a nearly seven-year process to write the rules on state activity in cyberspace.
Much, if not all, of 2017 is defined by the failure of cybersecurity efforts to fend off malicious attacks by both private and public actors. Without international agreement on a viable legal framework or innovate tech-based solutions, the global population remains vulnerable. But maybe things will get better. After all, there’s always next year.

By Eric Olson

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Last year, global financial markets awaited new international regulatory measures, grappled with new market entrants, and responded to significant legal changes in a number of municipalities. The below events review 2017’s most significant developments for the international finance world.

Basel III – Once set to be fully implemented in 2018, the Third Basel Accord devised a regulatory framework aimed at fostering market stability. Although final implementation was delayed, internationally-active banks subject to Basel III’s minimum capital, leverage ratio, and liquidity requirements should continue to prepare for the full implementation in 2019.

Basel IV – In December 2017, the Basel Committee approved a new set of financial regulation rules, dubbed ‘Basel IV,’ which address deficiencies in banks’ internal models for risk-weighted assets by permitting banks to only take a maximum 27.5% cut through internal models, thereby increasing capital requirements. By implementing a floor for risk-weighted assets, the Basel Committee hopes to create uniformity despite variances among banks’ internal models.

Brexit – The United Kingdom’s vote to leave the European Union continues to impact the financial world, with market observers unsure if foreign bank branches operating in Great Britain will be permitted to continue interacting with clients in the European Union.

Cryptocurrencies – Cryptocurrencies such as Bitcoin and Ethereum greatly increased in popularity and value over the last year, before leveling off towards the end of 2017. Proponents claim that the non-governmentally regulated currency will lead to much positive social and financial change, while skeptics remain critical of claimed benefits and increasing environmental costs. U.S. and European government bodies have indicated they will increase regulation of cryptocurrencies, and market investors should monitor progressing regulatory developments.

MiFID II – The European Union’s new investment services regulations, MiFID II, took effect in early 2018. The newly-effective measures aim to increase transparency in the European trading market as well as create uniform market structures.

New Fed Chair – In November 2017, U.S. President Trump forewent nominating incumbent Fed Chair Janet Yellen for a second term, instead successfully nominating former investment banker Jerome Powell to the position.

United States Tax Reform – The Tax Cuts and Jobs Act, the 2017 U.S. tax reform bill, significantly affected the American private equity industry. The new carried-interest rules, limits on loss deductions, and ceiling on interest deductions alter tax incentives for private equity. In light of these changes, a number of private equity firms have indicated interest in changing corporate form to a corporation for more beneficial tax treatment.

Looking ahead, international finance market participants should continue to monitor the impacts of new regulations and market players - legal advisors must ensure their clients comply with the newly-effective and soon-to-be implemented regulations.

By Cameron Peek

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Following the conclusion of phase one (“the divorce”) of the Brexit negotiations last December, the United Kingdom and the European Union have officially entered phase two of the negotiations, discussing the framework for the UK-EU future relationship and deciding the arrangements necessary during the period transitioning to that relationship. Frustrated that the discussions have produced few concrete ideas of what this future relationship would look like, two weeks ago the EU’s chief negotiator, Michel Barnier, told UK leaders that the time had come to make a choice — will the UK be in or out of the EU customs union? Responding to growing concern within the Conservative Party that she might bend to opposition pressure, last week UK Prime Minister Theresa May made her position clear; the UK will “categorically [be] leaving the customs union.”

A Refresher on Customs Unions

A customs union is a type of trading block that unifies the tariff policy of all members. Customs unions are defined by two key features: 1) a free trade area between members (members do not charge duties on goods imported from other members) and 2) a common external tariff (any goods imported from non-member countries are charged the same import tariff, regardless of which member country the goods enter the union). Here, we should distinguish the EU customs union from the EU single market. The customs union unifies external tariffs, but the single market is what allows the free flow of goods, services, people, and capital. Thus, it is possible to be in the single market, but not the customs union (like Iceland, Liechtenstein, Norway and Switzerland), or be in the customs union, but not the single market (like Andorra, San Marino and Turkey).

May’s Position and the Way Forward

Leaving the customs union risks seriously disrupting the lion’s share of UK trade. The EU is the UK’s largest trading partner, comprising 43% of all UK exports and 54% of all UK imports. Exiting the customs union will put up new tariff barriers, depriving UK-EU traders of the duty-free access they currently enjoy. On the other hand, leaving the customs union would allow the UK to escape the confines of the common external tariff, thereby making it possible for the UK to implement its own tariff policy and negotiate its own trade agreements with non-EU members. As the EU itself has recognized that 90% of global growth is expected to come from outside the EU, this could be a worthwhile tradeoff for the UK.

Still, May is holding on to hopes of both having her trade cake and eating it too. In August of last year, May’s trade team released a “future partnership paper” outlining what is still the UK’s stance for negotiating the future UK-EU trade relationship. Most notable from the paper was the proposition of a “customs partnership.” Under this scheme, the UK proposed that it would synchronize its import policies for intermediary goods brought into the UK that are part of a supply chain for final consumption in the EU. Thus, for American widgets meant to be consumed in the UK, the UK could charge x%; but if those same American widgets were to be used in other products that would eventually be shipped to the EU, the UK would be charge the EU rate, y%.
Unfortunately for May, EU officials are underwhelmed at the idea, calling the UK’s proposal for a customs arrangement “unrealistic.” Even more doubtful is whether such an arrangement would comply the WTO’s non-discrimination principles. As the negotiations proceed, the UK will need to be warry not to compromise its obligations to the world trading system in the hopes of maintaining current access to the EU market.

By Erika V. Suhr

File:International Criminal Court building (2016) in The Hague.png
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On October 27, 2017 Burundi, a year after declaring its intentions, became the first country to withdraw from the International Criminal Court.  The timing of Burundi’s withdrawal coincides with a report released by the United Nations Commission of Inquiry. The report recommended that a criminal investigation on crimes committed in Burundi be initiated in response to evidence of torture, sexual violence, extrajudicial killings, disappearances, and illegitimate arrests and detentions sponsored by the regime of Burundi’s president, Pierre Nkurunziza.

At the time that Burundi announced its decision to withdraw from the Rome Statute, it seemed like it could be the leader in a wave of withdrawals by other African nations. Many nations in Africa have criticized the ICC as being a tool for post-colonial control of African nations and a proxy for Western-led regime change. The ICC came under fire around the time it chose not to pursue charges against William Ruto and Uhuru Kenyatta, Kenya’s deputy president and president, who were both accused of violence surrounding Kenya’s 2007 election, which resulted in over 1,100 deaths and disappearances. However, South Africa rescinded on its threat in March of last year after its High Court ruled that Parliamentary approval was required to carry out the measure. Gambia also backed down after a presidential election defeated the 22-year incumbent. These political events forestalled a potential exodus from the ICC by prominent African members.

Burundi’s exit is an illustration of what can perhaps be expected when the Court attacks sitting officials instead of the fringe rebel groups it has in the past. However, it might be a symptom of an underlying fatal problem. At the very least, it presents an opportunity to reflect on the future of the ICC, and how it will respond to its critics going forward.

For instance, the criticism cited by Burundi and other African countries is that Africa is unfairly targeted while other world conflicts, especially those in which Western countries are involved in, are ignored. The ICC’s record seems to support that notion to some extent. Presently, nine out of the ten formal investigations conducted by the ICC are Africa-related, and all of its trials have been against African defendants. Additionally, the glaring absence of three of the five Security Council powers from the Rome Statute (the United States, Russia, and China) rankles member states who see the ICC as a political instrument wielded against the Global South. A rebuttal to this criticism might be that of the nine African countries being investigated by the ICC, five have been referred to the Court by their own governments. In only two cases has the ICC’s prosecutor used her discretion to bring a case. Further, a look at the list of countries that are being examined by the ICC reveals a less Africa-centric perspective. Countries under “preliminary examinations” include Afghanistan, Burundi, Colombia, Gabon, Guinea, Iraq/UK, Nigeria, Palestine, Registered Vessels of Comoros, Greece, Cambodia, and Ukraine.

Second, the argument exists that the Court is wildly inefficient. Since it began functioning in 2002, judges have issued only 31 arrest warrants. 25 cases have been heard before the Court and of those cases verdicts have been issued in six of them. Ultimately, nine people have been convicted and one was acquitted. Those results have cost over $1 billion since the Court’s inception, and today the ICC has an operating cost of $145 million per year. However, one might concede that investigations surrounding the gravest human rights violations are complex and time-consuming, as evinced by ad-hoc tribunals of isolated conflicts, such as the International Tribunal for the Former Yugoslavia. This is especially so when there is no cooperation from the country in which one is investigating.

There are tensions over the Court’s willingness in the coming years to test nonmember states and regions that it has historically not pursued. For instance, in its preliminary examination of Afghanistan, will it encompass United States actors in its inquest, or even Afghan state actors, or will it choose to go after dissident groups, like the Taliban, and count on some international cooperation? Russia has already blocked two Security Council resolutions to refer the Syrian crisis to investigation by the ICC. In face of this opposition, how aggressively will the ICC pursue allies of the Russian government, or the Russian government itself? Will it target the most culpable individuals?
Notwithstanding the criticisms and the setback of Burundi’s exit, one can say that some justice is preferable to no justice and that every incremental step forward in prosecuting human rights offenses is a victory and a testament to the better angels of our humanity.

As for Burundi, it is possible that it has not escaped the Court, despite its best efforts. Under the Rome Statute, crimes in nonmember states can still be referred to the Court for investigation by the UN Security Council. In this case, the commission did recommend a referral. The Court has stated that it would still claim jurisdiction over Burundi, but it might be difficult for them to do so. The status of Burundi’s case is a preliminary examination. For it to rise to an investigation, the ICC’s judges would have to grant the request of the Court’s prosecutor, and Burundi will most likely argue that there is no legal basis for them to do so now it is no longer a party. 
By Maura Sokol 

Prime Minister Ahmed bin Dagher has accused southern separatists in Yemen of attempting a coup after fighting began in the country’s southern port city, Aden. The separatists are known as the Southern Transitional Council (STC). The STC is led by Aidarous al-Zubaydi, the former governor of Aden who was forced out of his position by President Abed Rabbo Mansour Hadi. Fighting first broke out on Sunday, January 28th, when a deadline expired that the separatists had issued demanding the resignation of the government. The separatists seek independence for the southern part of Yemen, which was previously a separate country before a unification with the northern part of Yemen in 1990. The Southern Transitional Council has now demanded the removal of the Prime Minister and accused the government of corruption. In just a few days, the council has seized control of most of Aden and surrounded the Presidential Palace, which contains members of President Hadi’s government. The President himself is based in Riyadh.  

The conflict between President Hadi’s government and the separatists calls into question the stability of a coalition that has been fighting on the same side of the Yemeni Civil War since 2015. Hadi’s government is backed by Saudi Arabia, which leads a coalition of nine other countries in a military intervention against the Houthi movement. The civil war began when the Houthi movement, which supports Yemen’s Shia Muslim minority, rebelled against the government. The Houthis now control Yemen’s capital, Sanaa, and much of northern Yemen. Although the Saudi-led coalition has been fighting in support of Hadi’s government for the past three years, the United Arab Emirates is a key member of the coalition and supports the southern separatists. The separatists are financed and armed by the UAE, while Saudi Arabia supports Hadi’s government. Al-Zubaydi has made public comments since the fighting began declaring that the separatists remain committed to the coalition and to driving the Houthis out of Sanaa.

President Hadi’s government and the UAE have been in conflict for most of the existence of the coalition. The UAE has taken advantage of the situation to secure control over oil and gas ports in southern Yemen, and President Hadi has publicly accused the UAE of acting as an occupier in Yemen. President Hadi is also allied with the Islah Party, a branch of the Muslim Brotherhood and a known enemy of the UAE. 

As of Wednesday, the International Red Cross reported at least 36 killed and 185 wounded in this week’s fighting. The larger Yemen crisis has been declared the world’s worst man-made humanitarian disaster by the United Nations. According to the UN Human Rights Council, over half of the people who have been killed in the conflict are civilians, and civilians are the victims of repeated and “unrelenting violations of international humanitarian law.” Air strikes from the Saudi-led coalition are the leading cause of overall civilian casualties. Currently about 22.2 million people, or about 75% of Yemen’s population, are in need of humanitarian assistance.