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Do Kurds Have Legal Recourse Against Barzanis

Friday, 13/11/2015, 2:07

5761 بینراوە

Kurdistan is in a crisis, largely of its own making. Salaries of its civil service are in deep arrears. Declining oil prices and the fight against the Islamic State are excuses but not the reason: After all, the Iraqi government faces the same challenges but still pays its salaries. Baghdad has delivered its 17 percent revenue obligation enshrined in the constitution, and is in no position to hide its money; after all, Iraq’s finance minister is Kurdistan Democratic Party (KDP) leader Masoud Barzani’s uncle, and Oil Minister Adil Abdul-Mahdi has a long and close relationship with the Kurds.

The simple fact is that corruption remains the predominant drain on Iraqi Kurdistan’s economy. According to Iraqi and industry officials familiar with the account, more Kurdish oil is exported through the Ceyhan terminal than the Kurdistan Regional Government (KRG) declares, suggesting that some oil is sold more on behalf of party and individual than as the product of the KRG. Whereas family of leaders in Gulf Cooperation Council states may demand ten percent shares when foreign businesses seek to enter the market; businessmen complain that Barzani’s sons demand half and, unlike GCC princes, such demands come without willingness to provide service beyond the simple privilege of opening an office. As a result, investors have cooled on Kurdistan. Erbil is still dotted with cranes, but most now remain stationary.

Meanwhile, the political crisis simmers. Barzani has refused to stand down as president both at the end of his presidential term and its extension. His son’s Bas News might suggest that he has full U.S. support, but that is an exaggeration: Washington will support whomever the Kurds choose as their president. Officials in Washington know that the Kurds have many seasoned leaders who might even do better than Barzani in the fight against the Islamic State, who might choose to deploy donated weaponry rather than stockpile it, and who might prioritize professional competence over family. Facing terrorists and enemies, Presidents Clinton, Bush, and Obama did not appoint their children to be generals, but instead chose those who could be do the job, and firing those who performed poorly. Nevertheless, even if American diplomats, military officers, and the U.S. intelligence community sometimes prioritize stability over democracy, ordinary Kurds do have a more powerful recourse: U.S. law.

It is no secret that both the Barzanis and Talabanis have established close partnerships with the United States, but the Barzani’s have gone further: For all his talk about Kurdistan’s future and perhaps even independence, not only have Masoud Barzani’s sons reportedly acquired U.S. citizenship, but they have also ensured that their wives deliver their children at Sibley Hospital in Washington, DC, so that Masoud’s grandsons and granddaughters might have automatic U.S. citizenship. Indeed, just weeks after Masoud Barzani declared he and his family would not travel to Washington, DC, because of U.S. Patriot Act Tier III designation of his party as a terrorist group, the result of poor legal wording, his second son Mansour traveled with his wife to Washington to welcome their new child at Sibley.

Why did the new generation of Barzanis seek American citizenship? Perhaps the Barzanis might have calculated that U.S. passports would bring security if ever they needed to flee Kurdistan, but they might have misunderstood the contract inherent in U.S. citizenship. Every Barzani who is a U.S. citizen is now subject to U.S. law. Unlike in Kurdistan, there is no ‘royal exemption,’ nor are diplomats or even members of the U.S. intelligence community able to shield American citizens from the application of certain laws, even if decision-makers believe they provide strategic value.

If Kurds not only believe that the Barzani sons have engaged in corruption, but can also prove it by providing documents and other evidence, they should consider the applicability of the Foreign Corrupt Practices Act of 1977. It is the most widely-enforced anti-corruption law in the U.S. legal arsenal. Simply put, it prohibits the payment of bribes by American businessmen to obtain or retain business with any foreign official. The penalty for FCPA violations can mean forfeiture of all ill-gotten gains. Just this year alone, the U.S. Justice Department has launched cases against individuals and companies—including very large and prestigious companies—for alleged payments of bribes in China, Panama, Qatar, and Kenya. The issue need not be direct transfers of cash: One recent case involved “financing a ‘world tour’ of personal travel for Middle East government officials” who had a role in pending decisions.

The FCPA also includes a ‘whistle-blower’ clause. Should the information of those who report illegal activity lead to successful judgment, the initial informant can be entitled to between 10 and 30 percent of the disgorged funds. The reward for the capture of Osama Bin Laden was $25 million. But, if the Barzanis violate the FCPA with regard to one of the more lucrative companies in which they hold interest, the reward could potentially be several times that amount. As the Barzanis are now learning, the loyalty of many KDP cadres had more to do with patronage and cash than with personal loyalties. If they fail to pay salaries, not only ordinary people but also party members can turn against them. If the people recognize they can reclaim some of the money which Barzani-affiliated companies have allegedly misappropriated, that turn might be even greater.

There are limitations to the FCPA. According to the U.S. Department of Justice’s guide to the law, it applies only to those involved with companies which trade in the United States or are required to file compliance reports with the U.S. Security and Exchanges Commission. Most Kurdish companies, of course, do not do this but if rumors about ghost partnerships with oil firms operating in Kurdistan are true, then the law might easily apply to those Kurds in positions of leadership who hold U.S. passports. More importantly, since the law’s 1998 amendment, it also applies to those who “engage in any act in furtherance of a corrupt payment (or an offer, promise, or authorization to pay).” In other words, if Kurdish officials with U.S. passports discussed business involving payments illegal under U.S. law while having drinks at the Ritz-Carlton Hotel in Tyson’s Corner, those Kurdish officials might find the FCPA applicable to them. Perhaps of greater concern to those seeking to avoid the law, the 1998 amendments further removed the requirement that such “furtherance of a corrupt payment” occur inside U.S. territory. According to the Justice Department guide, “under the ‘alternative jurisdiction’ provision of the FCPA enacted in 1998, U.S. companies or persons may be subject to the anti-bribery provisions even if they act outside the United States.”

U.S. citizenship bestows other responsibilities as well. As any American working abroad knows, he or she remains liable for taxes on any income earned abroad above $99,200. They must also file income tax forms honestly and truthfully or face both financial penalties and criminal prosecution. And while the U.S. government will not tax existing wealth held in foreign bank accounts, such holdings must be reported annually. Masoud Barzani need not file such declarations—after all, he holds a Turkish rather than American passport—but any of his children or grandchildren holding U.S. citizenship must fulfill the duties of that citizenship. The U.S. Internal Revenue Service (IRS) charged with monitoring and adjudicating such tax issues does not have the staff to prosecute everyone, but should they become aware of major violators, they would be well within their rights to respond, irrespective of diplomatic concerns.

Kurdish grievances against the ruling families in Iraqi Kurdistan go well beyond complaints of corruption. Many abuses are far more violent. While the U.S. government and media continue to debate the definition of torture versus, for example, “enhanced interrogation” practices such as waterboarding as they relates to the Central Intelligence Agency, any KRG officials holding U.S. citizenship who engaged in torture or extrajudicial execution of, for example, independent journalists or satirists might also find themselves subject to far more clear cut U.S. law. Take, for example, the Alien Tort Claims Act (ACTA). Since 1980, it has become possible for plaintiffs to seek remedy for human rights violations committed outside of U.S. territory. In 2007, Chinese dissidents Wang Xiaoning and Shi Tao sued—and ultimately won a monetary settlement—against U.S. internet giant Yahoo! That said, U.S. courts generally do not embrace foreign jurisdiction, and the U.S. Congress is also wary given how activist European judges have abused universal jurisdiction in pursuit of political agendas. A more applicable law against Kurdish officials holding U.S. citizenship who engage in malfeasance might be the Torture Statute (18 U.S.C. § 2340), perhaps originally meant to cover Americans or dual citizens engaged in or facilitating torture in countries like Haiti, Yugoslavia, or Rwanda. While the law’s legal definition of torture is narrower than that embraced by the United States, it might still be applicable given some of the abuses in which Kurdish security services have engaged against civil society activists.

Under U.S. law, all parties are innocent until proven guilty. Not every American who violates the Foreign Corrupt Practices Act, evades U.S. taxes, or engages in torture is caught and prosecuted. The wheels of justice can be slow, and the standard of evidence can be high. That evidence must be accessible; accusations are not enough. But, while diplomats and intelligence professionals might like to turn their back to any complications which might impact the legal status of their partners and sources, ultimately they must operate under the law. Protesting in the streets to uphold rights and the law is important but if Kurds truly want to affect change, they should adopt a multipronged strategy that maximizes the full weight of the law, not only in Kurdistan where the judiciary is not fully independent, but also in the United States where it is substantially more so and where citizens are much more likely to face the law as equals, regardless of family name.