The Long Arm of the Law

How difficult is it to prosecute cases in U.S. courts that involve extraterritorial jurisdiction? In a word, "very." Gaining custody of the defendant may involve complex extradition procedures that bring both legal and diplomatic considerations into play. Prosecutors must work with police officials who follow rules for the collection and handling of evidence that are different from those here. Often, witnesses must be deposed using interpreters. If asked to testify, witnesses must be brought to the U.S., housed, and fed at government expense. This is not all. The prosecutors in such cases could generate much longer lists of the special problems inherent in cases that involve multiple jurisdictions.

Last week, a sentence of 210 years in prison was handed down in the case of Michael Joseph Pepe, a former Marine who was convicted back in 2008 in federal court on charges involving the sexual abuse of seven young girls in Cambodia. Pepe was arrested in Phnom Penh in June 2006 by Cambodian authorities and expelled the following February. He was brought to Los Angeles in the custody of U.S. law enforcement officials and arraigned. His trial, which included testimony from six of the seven girls, lasted three weeks and concluded on May 29, 2008. Here is a portion of the press release from the U.S. Attorney's Office for the Central District of California:

During the trial, government prosecutors presented testimony from six of the seven girls that Pepe sexually abused. The girls, who at the time of the abuse were between the ages of 9 and 12, testified that Pepe drugged, bound, beat and raped them. . . .

In addition to victim testimony, prosecutors presented corroborating evidence seized by the Cambodian National Police from Pepe’s Phnom Penh residence, including rope and cloth strips used to restrain the victims, Rohypnol and other sedatives, and homemade child pornography.

The prostitute who acted as Pepe’s broker testified on videotape about bringing him young victims. Pepe paid the broker and the victims' families for unlimited access to the victims.

The press release also notes that Pepe was the fifth person to be tried in the Central District of California under the PROTECT Act of 2003, a statute designed to strengthen protections in federal law against the sexual abuse of children. Section 105 of the law establishes a maximum sentence of thirty years in prison for anyone who travels abroad "for the purpose of engaging in any illicit sexual conduct with another person."

U.S. District Judge Dale S. Fischer imposed the maximum sentence in each of the seven cases and ordered that they be served consecutively rather than concurrently. She called Pepe's crimes "unspeakable" and "heinous" and indicated that she wished to send a message to other Americans who might consider traveling abroad for the purpose of engaging in illicit sex.

The long delay between the conclusion of Pepe's trial in 2008 and his final sentencing in 2014 was the result of a defense motion to throw out the verdict due to concerns about bias in some of the Vietnamese-language interpretations of witness testimony presented to the court. After the trial ended, an interpreter revealed that she was involved in a sexual relationship with a U.S. Immigration and Customs Enforcement agent investigating the case. In the end, Judge Fischer ruled that the ICE investigator's misconduct did not invalidate the overwhelming evidence of Pepe's guilt.

MS-13, TCO

On Thursday, the Office of Foreign Assets Control of the U.S. Department of the Treasury added  a Los Angeles-based street gang called MS-13 (aka Mara Salvatrucha) to its Specially Designated Nationals (SDN) List. MS-13 was designated a transnational criminal organization (TCO) by Treasury's Office of Terrorism and Financial Intelligence. This is the first time a street gang has been labeled a TCO and added to the SDN List. The designation allows the federal government to target MS-13's financial transactions and seize the millions of dollars it nets annually as a consequence of drug and sex trafficking.

MS-13 was established in Los Angeles in the early 1980s by Salvadoran immigrants who had fled El Salvador's civil war. (The war, which lasted from 1979 to 1992, resulted in the deaths of as many as 80,000 people--out of a population of under 5,000,000--and the disappearance of thousands more.) From Los Angeles, the gang spread to other U.S. cities with significant Salvadoran populations--notably Washington, D.C.--and to Central America. Today there are an estimated 30,000-50,000 gang members in over 40 U.S. states, El Salvador, Guatemala, Honduras, Mexico, and Canada.

Challenging Slavery

On Thursday, at an event hosted by Pepperdine University, the U.S. Agency for International Development (USAID) rolled out a new project designed to engage university students everywhere in an effort to find solutions to the problem of human trafficking. Centered on a new website called ChallengeSlavery.org, the project seeks to crowd-source ideas designed to bring an end to modern slavery.

Dr. Rajiv Shah, administrator of USAID, began by referencing President Obama's speech to the Clinton Global Initiative Annual Meeting on September 25 in which the President spoke of human trafficking in the following terms:

It ought to concern every person, because it is a debasement of our common humanity. It ought to concern every community, because it tears at our social fabric. It ought to concern every business, because it distorts markets. It ought to concern every nation, because it endangers public health and fuels violence and organized crime. I’m talking about the injustice, the outrage, of human trafficking, which must be called by its true name--modern slavery.

Now, I do not use that word, "slavery" lightly. It evokes obviously one of the most painful chapters in our nation’s history. But around the world, there’s no denying the awful reality. When a man, desperate for work, finds himself in a factory or on a fishing boat or in a field, working, toiling, for little or no pay, and beaten if he tries to escape--that is slavery. When a woman is locked in a sweatshop, or trapped in a home as a domestic servant, alone and abused and incapable of leaving--that’s slavery.

When a little boy is kidnapped, turned into a child soldier, forced to kill or be killed--that’s slavery. When a little girl is sold by her impoverished family--girls my daughters’ age--runs away from home, or is lured by the false promises of a better life, and then imprisoned in a brothel and tortured if she resists--that’s slavery.  It is barbaric, and it is evil, and it has no place in a civilized world.

Dr. Shah went on to laud the good work on human trafficking being done at Pepperdine by the Global Justice Program, the campus chapters of International Justice Mission, and by individuals such as third-year law student Amy Massey and law alumnus Jonathan Derby. He then presented USAID's Challenge Slavery project and turned the discussion over to a panel moderated by Dr. Sarah Mendelson, assistant administrator of USAID, and including Massey, Jocelyn White of IJM, Sam Baker of Not for Sale, and Justin Kosslyn of Google Ideas. The discussion of the work that is already being done--and the work that is  being envisioned in the form of government-NGO partnerships--was, in a word, inspiring.

To participate in the conversation on this issue--and to contribute to the solution of the problem of modern slavery--go to ChallengeSlavery.org and sign up to join the online community. And to learn how you currently contribute to the problem of human trafficking--unwittingly, one hopes--go to SlaveryFootprint.org.

TIP 2007

The U.S. State Department released the 2007 Trafficking in Persons Report yesterday. Sixteen states were placed in Tier 3, which is reserved for the worst of the worst--those states that "do not fully comply with the minimum standards [to fight trafficking] and are not making significant efforts to do so."

Among the states making their first appearance in Tier 3 are Qatar, which has been the subject of recent scrutiny in the United States as a result of an ATS suit on behalf of camel jockeys and their parents, and Equatorial Guinea. Of the latter, the Report states,

Equatorial Guinea is primarily a destination country for children trafficked for the purposes of forced labor and possibly for commercial sexual exploitation, though some children may also be trafficked within the country from rural areas to Malabo and Bata for these same purposes. Children are trafficked from Nigeria, Benin, Cameroon, and Gabon for domestic, farm and commercial labor to Malabo and Bata, where demand is high due to a thriving oil industry and a growing expatriate business community. Reports indicate that there are girls in prostitution in Equatorial Guinea from Cameroon, Benin, Togo, other neighboring countries, and the People's Republic of China, who may be victims of trafficking.

The "thriving oil industry" noted by the report has been a catalyst for many forms of corruption in Equatorial Guinea and elsewhere.

For a brief report on the TIP Report, see this Washington Post story.

Camel Jockeys and the ATS

I don't have time to comment on this right now, but please note this article by Adam Liptak in Sunday's New York Times concerning a class-action lawsuit filed in Florida last September against a number of wealthy individuals in the United Arab Emirates. Asserting the federal court's jurisdiction under the 1789 Alien Tort Statute, attorneys for the plaintiffs--young camel jockeys who worked in the UAE, and their parents--allege that the owners of racing camels in the UAE abducted children from their homes in various South Asian countries and kept them in conditions of slavery, both violations of the law of nations as required by the Alien Tort Statute.

[Via Opinio Juris.]

Not For Sale

For those in the vicinity of Malibu, I have a last-minute recommendation: David Batstone, author of Not for Sale: The Return of the Global Slave Trade--and How We Can Fight It and founder of the the Not for Sale Campaign, will be speaking at Pepperdine tonight. Batstone teaches ethics at the University of San Francisco and writes on ethics for USA Weekend.

Dr. Batstone's talk will be in Stauffer Chapel at 8:00 p.m.

Welcome to the Neighborhood

Melissa Giaimo, the Pepperdine student and Graphic reporter who wrote the story on Ken Starr and Blackwater that I linked to here, has made me aware of another story close to home that has international law ramifications. According to Global Witness, Teodoro Nguema Obiang, Equatorial Guinea's minister of agriculture and forestry and the son of President Teodoro Obiang Nguema, purchased an estate in Malibu last February for a reported $35 million. "Little Teodoro," whose official salary is approximately $60,000 per year, is said to have purchased the property through a corporation he controls called Sweetwater Malibu, LLC. I'm not certain at this point, but based on the description of the estate in this Guardian story, I think the property in question might be the one pictured here.

Why should residents of Malibu--and Americans everywhere--care about this real estate transaction? First, the money involved is, beyond doubt, tainted by the Obiang regime's corrupt practices. According to a recent ranking by Transparency International, Equatorial Guinea is one of the most corrupt states in the world. Although Equatorial Guinea is the third-largest oil producing state in Africa and, consequently, has a GDP per capita of $20,510 (30th in the world), it ranks 120th on the UN's Human Development Index. Life expectancy at birth is 42.8 years, which ranks 167th in the world.

Equatorial Guinea also has one of the worst human rights records in the world. The State Department's most recent human rights report (issued on March 8, 2006), with understatement reserved for important oil-producing states, said, "The 2002 presidential election was marred by extensive fraud and intimidation. The international community widely criticized the 2004 parliamentary elections as seriously flawed." The report goes on to note that torture, arbitrary arrests, trafficking in persons, and forced labor (among many other abuses) were reported in Equatorial Guinea in 2005.

In August, President Bush announced a National Strategy to Internationalize Efforts against Kleptocracy. This strategy commits the United States to efforts to fight against kleptocracy through the development of means to compel the forfeiture of assets associated with corrupt practices.

This would be a good time to test the President's commitment to combat the corruption of foreign rulers. It may be, however, that Equatorial Guinea's importance as an oil producer, its ties to ExxonMobil, Amerada Hess, Marathon, and other American oil companies, and its intensive lobbying efforts in the United States may dissuade the Bush Administration from even trying to act against the Obiang regime and its Malibu real estate holdings.

Maybe we can't expect the Bush Administration to act contrary to the interests of ExxonMobil, but would it be too much to ask local realtors to ask a few questions before dealing with dictators?

Assigning Grades

John R. Hamilton, a recently retired Foreign Service officer, suggests that one of the techniques used to impose American values on the rest of the world--the use of "report cards" to name, shame, and sometimes sanction foreign governments--is causing resentment abroad. Writing in Friday's Washington Post, Hamilton stated:

Attempts to explain the vehemence of anti-U.S. feeling abroad correctly home in on Iraq and other unpopular policies of the current administration. But over the past three decades the kudzu-like growth of another U.S. practice, used by Congress and by Democratic and Republican administrations alike, has nurtured seething resentment abroad.

This is what might be called "foreign policy by report card," the issuing of public assessments of the performance of other countries, with the threat of economic or political sanctions for those whose performance, in our view, doesn't make the grade. The overuse of these mandated reports makes us seem judgmental, moralistic and bullying.

Here are some of the "report cards" that the Department of State and other agencies of the United States government are required by law to issue:

• Country Reports on Human Rights Practices (Department of State)
• International Religious Freedom Report (Department of State)
• Trafficking in Persons Report (Department of State)
• Country Reports on Terrorism (Department of State)
• International Narcotics Control Strategy Report (Department of State)
• Special 301 Report--Intellectual Property Rights Protection (Office of the U.S. Trade Representative).

In addition, the United States monitors and in some instances imposes sanctions on countries that violate domestic or international norms regarding nuclear nonproliferation, labor rights, conflict diamonds, and sea turtle protection.

"The point is not," as Hamilton writes, "that these goals are illegitimate." It is desirable that we should try to control human trafficking, drug trafficking, and the spread of nuclear weapons, just as it is good that we should try to promote human rights and the protection of sea turtles. "But in the aggregate," Hamilton states,

our public reports have reinforced the view abroad that we set ourselves up unilaterally as police officer, judge and jury of other countries' conduct. Often, governments in developing countries in particular are committed to the objectives we are promoting, but they are overwhelmed by poverty, political instability and other existential problems that, in their view, dwarf the issues on which we would have them concentrate. Even so, they struggle to improve, say, performance on human trafficking, only to be found lacking with respect to drugs or labor rights. They may well conclude that, however much they try, their best is never good enough for us. The result is demoralization, anger and sullen resistance where we otherwise might have made common cause.

We could adjust this approach, especially where the objectives enjoy broad support in the international community, to advance them through multilateral organizations. We have effectively promoted more vigorous action against money laundering through the broadly based Financial Action Task Force. Several years ago, and as resentment over our annual narcotics certification process threatened to spin out of control, Congress softened the approach and, with modest success, we sought to make the Western Hemisphere portion of it multilateral through the Organization of American States.

Scaling back in other areas would help. It is critical, though, that we refrain from using this tool as we seek to promote new objectives--however worthy--in the future. The tolerance of other societies for being publicly judged by the United States has reached its limits.

No one likes to be judged and found wanting. But what better way is there for the hegemon to enforce its norms in the international system than by assigning grades and imposing sanctions on those who fail to measure up? (Indeed, what better way is there for a professor to encourage his or her students to meet the standards imposed in a classroom?)

If you're not comfortable with the analogy to the classroom, then either you're not a fan of hegemonic stability theory or you just don't like thinking about grades. If it's the former, then take heart because there is a liberal internationalist response to the U.S. government's emphasis on assigning grades. Hamilton, in fact, presents it in his penultimate paragraph: In those instances "where the objectives enjoy broad support in the international community," it would be possible "to advance them through multilateral organizations" rather than through a unilateral system of grades and sanctions.

Frontline: Sex Slaves

The PBS program Frontline tonight aired a documentary on sex trafficking in Ukraine, Moldova, and Turkey. The personal stories of women who have been trafficked combined with footage from hidden cameras make this a very powerful report.

Unlike some Frontline stories, "Sex Slaves" is not available for viewing online. There is, however, a very good web site associated with the report located here.

Human Trafficking: A New Study

On Monday, the UN Office on Drugs and Crime (UNODC) released a new report entitled Trafficking in Persons: Global Patterns (available here in PDF format). According to the report, there are 127 countries in which human trafficking originates, 137 countries that are destinations for human trafficking, and 98 countries that serve as transit points for trafficking. The United States is listed as one of the ten top destination countries.

Human Trafficking: The Miniseries

The Lifetime cable network will air an original miniseries October 24-25 that addresses the issue of human trafficking in the United States. The two-part movie, entitled Human Trafficking, will star Mira Sorvino and Donald Sutherland as Immigration and Customs Enforcement agents.

Lifetime secured the cooperation of the Department of Homeland Security in making the film. Two nongovernmental organizations that deal with the issue of human trafficking--Equality Now and International Justice Mission--also contributed their expertise.

Today's New York Times notes that Lifetime has engaged a number of political issues in its programming over the past decade. With Human Trafficking, the network hopes to generate support for two anti-trafficking bills currently before Congress.

The Day My God Died

A stirring documentary entitled "The Day My God Died" aired on KCET last night. The film examines the issue of human trafficking by telling the stories of several girls sold into sex slavery in the world's largest red light district in Bombay, India. Also profiled in the film are the efforts of several organizations (including the International Justice Mission, whose founder, Gary Haugen, is featured prominently) that are working to rescue victims of human trafficking.

One of the issues addressed by the documentary is the spread of HIV/AIDS to and by the girls forced into prostitution. In addition to the horrendous human rights abuse represented by human trafficking, many of the victims--even those who are among the lucky few rescued from the brothels--have, as a consequence of their experience, what amounts to a death sentence. Sex trafficking is both a terrible human rights abuse and a significant factor in the spread of HIV/AIDS.

For more about the documentary, see the KCET web page devoted to the program here. (Be sure to click on the "Learn More" and "Get Involved" links.)

Unfortunately, no re-broadcast appears to be scheduled, but perhaps a showing can be scheduled by an IJM chapter near you. (Please let me know if you see the documentary scheduled on another public television station.)

Extraterritorial Jurisdiction and Child-Sex Tourism

In a federal trial concluded Friday in Santa Ana, California, an 86-year-old man was convicted of six felonies including intent to travel abroad for the purpose of engaging in illicit sex. According to the New York Times, John W. Seljan, 86, said that he had been traveling to Southeast Asia, a region notorious as a sex tourism destination, at least three times a year for the past two decades.

Seljan was prosecuted under the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003 (Public Law 108-21). Section 105 of the statute states:

Travel With Intent To Engage in Illicit Sexual Conduct.--A person who travels in interstate commerce or travels into the United States, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.

The italicized portion of this section of the PROTECT Act permits the extraterritorial exercise of U.S. jurisdiction under the nationality principle.

U.S. Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security, posts a fact sheet that lists individuals arrested for child-sex tourism. Of the nine men listed, two are not U.S. citizens. Five of the nine have been charged but not yet convicted. Of the four convictions, only Seljan's case went to trial.

With sex tourism thriving in countries where the government is either unable or unwilling to address problems such as sex slavery and child prostitution, the developed countries whose citizens make such practices profitable are increasingly exercising extraterritorial jurisdiction in an effort to curtail the global sex trade. (It is estimated that a quarter of the world's child-sex tourists are Americans.) World Vision, with funding from the United States Government, has launched an ad campaign that includes billboards (in English) in countries such as Cambodia aimed at alerting sex tourists to the possibility of prosecution for crimes committed abroad. One such ad says, "Abuse a child in this country, go to jail in yours."

Although not limited in its scope to the child-sex trade, the dimensions of the problem can be seen in the Department of State's annual Trafficking in Persons Report.