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Repurposing Frozen Assets to Assist the Forcibly Displaced

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Repurposing Frozen Assets to Assist the Forcibly Displaced Repurposing Frozen Assets to Assist the Forcibly Displaced WORLD REFUGEE & MIGRATION COUNCIL RESEARCH PAPER SEPTEMBER 2020 WORLD REFUGEE & MIGRATION COUNCIL Acknowledgements This paper is a revised and expanded version of Discussion Paper Number 2, prepared for and published by the World Refugee Council (WRC) and the Centre for International Governance Innovation, titled Using Frozen Assets to Assist the Forcibly Displaced: A Policy Proposal for Canada. That paper provided the WRC with policy options in the Canadian context, as well as commentary on related developments in other leading jurisdictions. The concept for Discussion Paper Number 2 originated with Fen Osler Hampson and Lloyd Axworthy, and was prepared by Allan Rock of the Faculty of Law, University of Ottawa, with the assistance of students Kirsten Aleksejev, Zaynab Al-Waadh, Ghannia Bokharia, Jiwon Chun, Christina Clemente, Paul Ethans, Shannon Kristjanson, Andrew Mortenson, Katelyn Perry and Nika Shaeri. This revised version of Discussion Paper Number 2 was prepared by Allan Rock with the assistance of Alexander Cardin, a student in the Faculty of Law, University of Ottawa. Copyright © 2020 by the World Refugee & Migration Council World Refugee & Migration Council research papers provide information to support the work of the Council, but do not necessarily reflect the views of the Council itself. This work is licensed under a Creative Commons Attribution — Noncommercial — No Derivatives License. To view this license, visit Creative Commons. For re-use or distribution, please include this copyright notice. WORLD REFUGEE & MIGRATION COUNCIL World Refugee & Migration Council 44 Eccles Street #200 Ottawa, Ontario, Canada K1R 6S4 www.wrmcouncil.org The World Refugee & Migration Council is supported by a partnership with Cuso International. 2 Table of Contents Acronyms 4 Introduction 5 The Frozen Assets Repurposing Act 6 Freezing Assets in Canada: By What Authority? 8 United Nations Act 8 Freezing Assets of Corrupt Foreign Officials Act 8 Special Economic Measures Act 8 Justice for Victims of Corrupt Foreign Officials Act 9 Existing Authorities to Seize Assets 9 The Experience in Other Countries 10 Switzerland 10 The United States 11 The United Kingdom 11 France 12 Germany 13 The European Communities 13 The Canadian Charter oF Rights and Freedoms 14 Section 7 Test 14 Section 7 Relevant Jurisprudence 16 The Canadian Bill oF Rights 19 Works Cited 20 Appendix A: Frozen Assets Repurposing Act 21 3 Acronyms CFA Civil Forfeiture Act CRA Civil Remedies Act FACFOA Freezing Assets of Corrupt Foreign Officials Act FARA Frozen Assets Repurposing Act FIAA Foreign Illicit Assets Act IEEPA International Emergency and Economic Powers Act IRA Irish Republican Army PCMLTFA Proceeds of Crime (Money Laundering) And Terrorist Financing Act POCA Proceeds of Crime Act SCC Supreme Court of Canada SEMA Special Economic Measures Act SPMA Seized Property Management Act UNA United Nations Act UNSC United Nations Security Council VRCPA Victim Restitution Compensation Payment Act WRMC World Refugee & Migration Council 4 Introduction With the number of refugees and internally displaced persons currently at more than 70 million, the global level of forced migration is now greater than ever. The present arrangements for responding to their needs are falling far short in almost every respect. Fresh thinking is required to develop a more effective legal, social and financial framework to meet this challenge. The World Refugee & Migration Council (WRMC) was created as a catalyst for that fresh thinking, and as a forum in which policy innovations can be developed. The WRMC’s starting point is the principle of shared responsibility, leading to a more equitable distribution of the tasks involved in hosting, settling and integrating refugees, and providing support and protection to those who are internally displaced. The WRMC recognizes that a framework based on shared responsibility will endure only if there are mechanisms for enforcement and accountability. At the same time, the framework must include incentives for states to comply with their obligations, and resources to assist them in doing so. In considering accountability, it is important to remember that forced displacement is often the result of bad governance. Violent or oppressive regimes, or those that fail or refuse to protect their populations, are responsible for much of the forced migration in the world today. Those regimes are also often corrupt, stealing from their treasuries and placing the money and other assets offshore for the unlawful benefit of the rulers and their associates. When the jurisdictions in which the purloined assets are placed become aware of the assets’ existence, they frequently “freeze” and, in some circumstances, seize them. These steps may be authorized by court order, by domestic legislation, or through sanctions imposed by the United Nations Security Council (UNSC). As a result, such assets are often tied up for extended periods. Meanwhile, the countries that are hosting those who were forcibly displaced struggle to manage the cost of accommodating large numbers of refugees or displaced persons whose dislocation was often caused by the very regime that stole the money. To achieve both greater accountability and a fairer allocation of responsibility, could the stolen money be used in such cases to assist the forcibly displaced? If the money is to be returned to the country from which it was stolen, can conditions be attached, requiring that it be used for the fair treatment and safe resettlement of refugees and the internally displaced? Where the corrupt regime is still in power, can the money be paid out directly to NGO’s, or jointly to the country of origin and, perhaps, an NGO or the Office of the United Nations High Commissioner for Refugees? These questions raise complex, sensitive and sometimes unprecedented issues, but given the acute shortage of resources to assist refugees, they are well worth pursuing. It is estimated that corrupt leaders of countries whose population has been displaced, have deposited billions of dollars in cash and assets in foreign jurisdictions. 5 The Frozen Assets Repurposing Act Since the publication of this paper in its original form, legislation was introduced in Canada that would make it possible for the Government of Canada to apply to the court for authority to seize and repurpose frozen assets. On March 21, 2019, the Honourable Senator Ratna Omidvar introduced Bill S-259 An Act respecting the repurposing of certain seized, frozen or sequestrated assets (referred to as FARA).1 FARA has been reproduced in Appendix A to this paper. FARA is based upon and reflects the principles advanced in this paper. FARA seeks to address the increasing number of forcibly displaced persons globally in two ways: first, by imposing a measure of accountability on those responsible for displacement through bad governance; and second, by easing the financial costs associated with that bad governance and corruption. FARA does so by creating a regime allowing a judge, on the application of the Attorney General or any other person with the written consent of the Attorney General, to order that an asset frozen under SEMA, the Freezing Assets of Corrupt Foreign Officials Act or the Justice for Victims of Corrupt Foreign Officials Act (Magnitsky Law) be paid into court. The court could also order a frozen asset be sold and the proceeds from the sale paid into court, or deal with the frozen asset in some other appropriate manner.2 Before making such an order, the court must be satisfied on a balance of probabilities that the frozen asset is associated with a foreign national responsible for or complicit in extrajudicial killings, torture or other gross violations of internationally recognized human rights, the enforced displacement of peoples, the ordering, controlling or direction of significant corruption, or violated human rights standards set by customary international law and the international human rights conventions to which Canada is a party.3 The court must provide notice of the proceeding to any person or entity that may have a valid interest in the frozen asset. If the court considers it necessary, the court may hear evidence from a person or entity claiming an interest in the frozen asset, regardless whether the person or entity received notice.4 This protects the rights of innocent third parties. If the asset is forfeited, the court may use it (or the proceeds of its sale), at its discretion, to benefit persons harmed by the impugned acts, to support humanitarian relief for forcibly displaced persons, or assist a foreign state in accommodating refuges. Any allocation of assets must include a requirement that the recipient report to the court on its spending of moneys. A court may also restrict the use of the moneys and set prohibitions on certain uses.5 1 Bill S-259, An Act respecting the repurposing of certain seized, frozen or sequestrated assets, 1st Sess, 42nd Parl, 2019 (first reading 21 March 2019). 2 Ibid, cls (1), 2. 3 Ibid, cl 6. 4 Ibid, cl 7. 5 Ibid, cl 8. 6 FARA would require that the Minister of Foreign Affairs publish and maintain a registry listing the name or entity associated with a frozen asset and the value of the asset.6 FARA died on the order paper with the dissolution of the last Parliament. However, the Liberal Party of Canada (2019, 72), which now forms a minority government, included in its 2019 election platform the prospect of building on the Magnitsky sanctions regime by allowing the transfer of seized assets with appropriate judicial oversight. This paper will address some of the questions that arise in relation to FARA and relating more broadly to the policy question whether governments should confiscate and repurpose frozen assets for the benefit of the forcibly displaced. 6 Ibid, cl 4. 7 Freezing Assets in Canada: By What Authority? As a starting point, it will be useful to review the sources of lawful authority in Canada for the freezing of assets.
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