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Crime against international law

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A number of crimes against international law are created by treaty and convention. Some of these crimes are prosecuted before international courts and tribunals. But more difficult questions of jurisdiction arise when the issue is whether a person, natural or fictitious, can be prosecuted for breach of public international law in the municipal courts of the state in which an arrest is made.

United Kingdom

Under s51(1) International Criminal Court Act 2001, genocide and crimes against humanity committed either in the UK or by UK nationals abroad can be prosecuted but, as a dualist nation, other prosecutions can only be mounted where the UK has acceded to the Treaties and Conventions that create the offences including: war crimes, torture, and enslavement and forced labour offences. The criminal jurisdiction is presumed territorial in the absence of express words and based on the presence of the accused within the jurisdiction. There are a number of statutes that impose criminal liability on UK and/or non-UK nationals who commit particular acts outside the jurisdiction, but this can only be exercised where the individual is present or visits the UK Otherwise the UK government would need to seek extradition from the state in which he is located.

It is a rule of statutory interpretation that unless a contrary intention appears, the word "person" includes any body of persons corporate or unincorporated. Thus, once the principle of corporate liability for the form of legal entity is accepted, the entity can be charged with any international offence no matter where it was committed in the same way as a natural person.

Under the Rules of the Supreme Court, a court can accept claims against a corporation for a tort arising out of an international crime committed outside the jurisdiction so long as there is some real connection with the UK (see forum shopping and forum non conveniens). This liability is usually based on some activity committed within the jurisdiction or on the fact that profits from the tortious activity have been received within the jurisdiction. Similarly, most breaches of international human rights would be tortious, e.g. torture could be trespass to the person, etc. Civil proceedings may be served on a person who is physically present within the jurisdiction, even if only temporarily. Proceedings may also be served outside the jurisdiction with the permission of the court. This will be usually be granted for defendants resident in the lex loci solutionis (the Latin tag for "the law of the place of performance whether in contract or tort), the lex situs (the Latin tag for "the law of the place where the property is located") or the proper law state.

United States

Because the U.S. courts do not subscribe to the doctrine of universal jurisdiction, the relevant international law must have been incorporated directly into U.S. criminal law through Congressional legislation. Congress has enacted statutes covering genocide, war crimes, torture, piracy, slavery, and trafficking in women and children to meet the U.S. obligations under international agreements. If a criminal act is commenced in one U.S. state, but the defendant has fled, the first state must seek extradition and return for trial.

Although U.S. federal courts do not apply the doctrine of universal jurisdiction, Joel & Dolly M. E. Filártiga v Américo Norberto Peña-Irala 630 F.2d 876 (2d Cir., June 30 1980), interpreted the Alien Tort Statute, 28 U.S.C., which provides:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

The Filartiga ruling allows a range of tort claims for alleged breaches of the "law of nations". Companies may also be liable for the illegal exploitation of resources abroad under the National Stolen Properties Act and the Racketeering Influenced Corrupt Organizations Act (RICO), and the courts have allowed claims for forced labour and personal injuries when employed as a slave labourer, and claims by citizens of "foreign" countries for injuries inflicted by security forces employed by a subsidiary of U.S. corporations. U.S. courts have in personam (the Latin tag for "personal jurisdiction") over a corporation if:

  1. the corporation is organized in a US state jurisdiction;
  2. the corporation is doing business in a jurisdiction;
  3. the corporation has consented to be sued; or
  4. the corporation appears in court to defend the action without specifying that the purpose of the appearance is a special appearance.

In personam jurisdiction over a corporation may be "general", i.e. a suit may be brought for any cause of action over which the forum court has subject matter jurisdiction and is a proper venue; or "specific", i.e. the suit may address only those activities which gave rise to the cause of action. Even if the jurisdiction and venue are proper, a federal court has a discretion to dismiss the suit under the act of state doctrine or one of its related doctrines, such as comity or political question.

Canada

Natural persons

In Canada, the Crimes Against Humanity and War Crimes Act, S.C. 2000 (CAHW) has incorporated the following as domestic crimes: genocide, crimes against humanity, war crimes, breach of responsibility by a military commander or a superior (usually a civilian superior), offences against the administration of justice of the International Criminal Court, and possession or laundering of proceeds derived from these crimes. Normally, criminal jurisdiction is exclusively territorial, but CAHW invokes universal jurisdiction as defined in customary international law.

Companies are not expressly included or excluded from prosecution for international crimes under CAHW. but all the standard remedies in tort are available against corporations for activities committed outside the jurisdiction. For civil jurisdiction, the court requires a "real and substantial connection" with the subject matter of the case (i.e. the forum conveniens rule).

France

Natural persons

The new Criminal Code includes a series of provisions describing crimes against humanity in considerable detail, including genocide and aggravated war crimes. A limited number of international crimes have equivalents in French domestic law, e.g. forced labour is the equivalent of illegal confinement. Extraterritorial jurisdiction is based on a connection with France through:

  • the nationality of the perpetrator (active personality jurisdiction) of the crime or the victim (passive personality jurisdiction);
  • the events constituting the crime represent a connected series of acts or an indivisible act occurring both in France and another state, or where there were acts of complicity in France for a crime committed abroad, if the acts are criminal under all relevant systems of law; or
  • the concept of universality where French public policy interests are affected.

In French law, a civil action can be brought jointly with a penal action before a criminal court. Corporate liability is covered in Articles 121/2 of the new Criminal Code which provide that legal persons will be liable in the cases identified by the Legislature and Article 213-3 provides that legal persons may incur criminal liability for all crimes against humanity.

Norway

Natural persons

Norwegian municipal law incorporates specific areas of international law, but there must be a matching penal provision in the domestic criminal law as a precondition to enforcement. Norway is a signatory to the International Criminal Court which has complementary jurisdiction to municipal criminal courts, albeit that the local courts have precedence to prosecute the crimes of genocide, crimes against humanity, war crimes and the crime of aggression. Norway prosecutes international crimes using domestic penal law, e.g. genocide can be treated as homicide, torture as an offence against the person, etc. Norwegian criminal law is applicable to acts committed abroad by any Norwegian national or any person domiciled in Norway when the act is a felony under the law of the country in which it is committed. There is a general discretion to decline a prosecution which occurred in a case brought against the Israeli Prime Minister.

If a business entity domiciled in Norway is involved in unlawful activity committed outside the jurisdiction, both civil and criminal actions are available subject to the rule of "double actionability", i.e. the activity must have been unlawful under the laws of both Norway and the country of commission. The Norwegian Code of Compensation allows actions for damages for the loss and damage arising from the breach of international law. Civil jurisdiction is based on residence or temporary personal presence for natural persons and the place where the board of directors has its seat. Non-nationals can be sued in Norway if any business activity occurs in Norway. The court must be conveniens, i.e. objectively competent in a local and functional way and, in some cases, this requires the defendant's consent.

Micronations

Main articles: Pearlasia Gamboa and Dominion of Melchizedek

Pearlasia Gamboa (Pearl Gamboa, Elvira Gamboa, Bae Gamboa, Pearlasia Korem, Elvira Katiguman, Elvira Catiguman, Bae Catiguman, Rebekah Mesaleah, Pearlasia Austin, Elvira Austin, Elvie, Pearlie, Pearl Asia, Pearl Asian) is a Philippine-American business woman with numerous aliases who has been involved in controversial international banking, investment, and financial development transactions, including bank fraud and securities fraud, from 1990 through 2009. The United States Securities and Exchange Commission filed against Gamboa in 2009 to stop her from selling securities of any kind again, and to reimburse victims of her fraudulent activities by which she enriched herself, calling her claimed Philippine gold mines and companies “empty shells”.[1] According to a United States law enforcement official, her “so-called ‘banks’ are involved in serious fraud, and we are watching them close.”[2] Gamboa was the president of the micronation called the Dominion of Melchizedek.[3]

Modus Operandi

Gamboa’s victims include people in Bangladesh and in the Philippines.[4] The scheme involved making claims of being highly religious, thus claiming religious freedom in order to avoid legal trouble, and the Dominion was set up as a religious theocracy.[5] The anti-Mafia Directorate in Rome has investigated Gamboa.[6] The United States Securities and Exchange Commission alleges that Gamboa’s Philippine gold mines, banks, and companies that she sold nearly 2 billion shares in are only empty shells, with falsified accounting.[7] In 2002, the Italian newspaper La Republica described her international banking scheme as “one of the most diabolical international scams ever devised in recent years”, and in 2000, the Asia Times described Gamboa’s operations as “an astonishing series of worldwide swindles”.[2] One of Gamboa’s banking and investor fraud schemes was described by the Italian newspaper La Republica as “one of the most diabolical international scams ever devised in recent years.”[8] Gamboa has been internationally sought by police all over the world.[9] State regulators described claims made in her business applications as “invalid”, and a Special Assistant to the United States Office of the Comptroller of the Currency said "It's a con artists' operation through and through… It's a phony bank… the whole thing's a phony."[3][10] The Asia Times described Gamboa’s operations as “an astonishing series of worldwide swindles”.[2]

Gamboa’s method of operation is to claim that she is highly religious, to pretend to have wealth, to create associations with international fame, to use numerous variations of her names and aliases, and to pretend to own physical companies around the world, such as gold mines, biodiesel companies, and banks, which are actually only empty shells.[3][6][7][11] In 1995, after being investigated for fraud, Gamboa claimed a “religious freedom” by which she did not recognized the laws of the State of California, and she declared spiritual warfare on California’s Deputy Attorney General.[12] In 2002, the address Gamboa listed with the SEC as an address for two of her businesses was the largest residence in Beverly Hills.[13][14] In 2009, Gamboa’s name was listed as one of the authors of a local newspaper claiming that her son, Hazemach, won a gold medal in a national Karate competition.[15] La Republica describes “a trap of luxury for the victims”.[8] The Washington Post newspaper describes Gamboa’s numerous aliases and company names as “names that change with kaleidoscopic ease and a history of more legal proceedings than 'Melchizedek' has syllables… getting to the truth requires a walk down a bizarre labyrinth that includes a home-brew religion…it appears to exist mainly so that money can be whisked through shell banks”.[3] The Indiana Star newspaper described her activities as being “like a novel full of global intrigue and biblical ties”.[16]


See also

  1. ^ SEC Sues ZNext Mining and its Principal for Fraud and Registration Violations, United States Securities and Exchange Commission Litigation Release No. 21084 / June 12, 2009, Securities and Exchange Commission v. ZNext Mining Corporation, Inc. and Elvira G. Gamboa, United States District Court for the Northern District of California, Civil Action No. CV 09-2611 (VRW), [1]
  2. ^ a b c “an astonishing series of worldwide swindles”, Cyber Nations with Real Repercussions, Asia Times, Feb 17, 2000, James Knight, [2]
  3. ^ a b c d THE RUSE THAT ROARED, Washington Post, November 5, 1995, Richard Leiby, James Lileks
  4. ^ “They had duped hundreds of local Filipinos, Chinese and Bangladeshis to pay up to $3,500 for worthless Melchizedek travel documents they were told were ‘internationally-recognized passports’”, Cyber Nations with Real Repercussions, Asia Times, Feb 17, 2000, James Knight, [3]
  5. ^ “In the statutes of the "Domain", we learn that it is a sort of theocracy: excellent way (in the U.S.) would be safe from legal trouble by invoking the law on religious freedom and persecution on religious grounds.”, LA REPUBBLICA DAL, MASSIMO LUGLI, 'Dominio di Melchizedek' stato fantasma sull' Appia, 15 maggio 2002, pagina 5, sezione: ROMA, [4]
  6. ^ a b “District Anti-Mafia Directorate in Rome, to defeat a matter of fraud of enormous proportions… 200 Italian victims of the scam… Elvira Gamboa, well-known international crooks, and varied financial structures in England, USA, Australia and France… the real scam. A plurality 'of banks around the world - entirely fictitious… fake company directors' going back and forth with great displays of wealth, so that the customer is convinced… International Merchant's Reserve (IMR), headquartered in Via Appia Nuova. A very similar name - an acronym identical - to the International Monetary Reserve, the governor of the Dominion…”, “Si articola cosi' l'operazione "Mulciber" - dal nome di colui che costrui' il palazzo del Diavolo all'Inferno - sgominata dai Carabinieri di Roma. Due anni di indagine, sette ordinanze di custodia cautelare emesse dalla Direzione Distrettuale Antimafia di Roma, per sgominare un giro di frodi di proporzioni enormi… 200 italiani vittime della truffa - A gestire praticamente l'intera operazione, Tzemach Ben David Korem e sua moglie Elvira Gamboa, notissimi truffatori internazionali, e variegate strutture finanziarie in Inghilterra, Stati Uniti d'America, Australia e Francia. Nell'operazione sono rimasti coinvolti circa 200 italiani, la maggior parte dei quali residenti nella zona di Taranto, per una cifra di circa 1,5 milioni di euro… 200 italiani vittime della truffa - A gestire praticamente l'intera operazione, Tzemach Ben David Korem e sua moglie Elvira Gamboa, notissimi truffatori internazionali, e variegate strutture finanziarie in Inghilterra, Stati Uniti d'America, Australia e Francia. Nell'operazione sono rimasti coinvolti circa 200 italiani, la maggior parte dei quali residenti nella zona di Taranto, per una cifra di circa 1,5 milioni di euro… La frangia italiana dell'intera operazione e' fisicamente incentrata sulla International Merchant's Reserve (Imr), con sede in via Appia Nuova. Un nome molto simile - un acronimo identico - alla International Monetary Reserve, del governatore del Dominion. Quattro esperti della finanza illegale, Bruno Adamu, la convivente Carolyn Ann Russel, Maurizio Cremona e Marco Dibari (ma quest'ultimo ha cambiato diversi nomi negli ultimi anni) si occupano giorno per giorno di procacciare e servire clienti.”, Cronaca. Operazione Mulciber, una colossale truffa internazionale sgominata dai carabinieri,RAI News 24, [5]
  7. ^ a b “sold nearly 2 billion shares in a supposed gold mining company in the Philippines, but ZNext Mining Corp. aka Pearl Asian Mining Industries is just an empty shell, the SEC claims in Federal Court”, SEC Ties Gold-Mining Shares to Empty Shell, Courthouse News Service - Jun 15, 2009, [6]
  8. ^ a b “A trap of luxury for the victims of one of the most diabolical international scams ever devised in recent years”, “Dominion of Melchizedek” Ghost State, (”una trappola di lusso per le vittime di una delle piu diaboliche truffe internazionali mai escogitate negli ultimo anni”, 'Dominio di Melchizedek' Stato Fantasma Sull), La Repubblica, Massimo Lugli, March 15, 2002 (15 maggio 2002), page 5 (pagina 5), Section:Rome, (sezione: ROMA), [7]
  9. ^ “ Elvira Gamboa, hunted by the police all the world”, LA REPUBBLICA DAL, PAUL VIOTTI, Treasure Island? No… Scams, May 15, 2002, page 6, [8]
  10. ^ “banking regulators… said (it) has no examiners to test the validity of any claim made on a business application… ‘There were a number of letters of credit issued by this phony bank which appeared in circulation’, said John Shockey, special assistant at the Office of the Comptroller of the Currency.” Indiana trying to expel `phantom' Asia Pacific Bank, Indianapolis Star, Nov 9, 1994, SP Dinnen, [9]
  11. ^ Presentation of Mr. John Shockey, Former Special Assistant, U.S. Comptroller of the Currency, to the 4th International Financial Fraud Convention in London, May 27, 1999
  12. ^ “Pearlasia, president of the Dominion of Melchizedek, has declared war on a California deputy attorney general.”, NATION WAGING “SPIRITUAL WAR” ON STATE OFFICIAL, Sacramento Bee - Feb 13, 1995, [10]
  13. ^ Cite error: The named reference FCAHC was invoked but never defined (see the help page).
  14. ^ Cite error: The named reference JBNRE was invoked but never defined (see the help page).
  15. ^ Cite error: The named reference LB was invoked but never defined (see the help page).
  16. ^ “The story of the mysterious financial company and state regulators' efforts to shut it down reads like a novel full of global intrigue and biblical ties”, Indiana Trying to Expel `Phantom' Asia Pacific Bank, Indianapolis Star, Nov 9, 1994, SP Dinnen, [11]
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