International Law In Brief

JUDICIAL AND RELATED DOCUMENTS

International Criminal Tribunal for Rwanda (ICTR): The Prosecutor v. Vincent Rutaganira (March 14, 2005)

Click here for the decision. (In French)

The Trial Chamber of the International Criminal Tribunal for Rwanda (ICTR) sentenced Vincent Rutaganira to six years’ imprisonment pursuant to Article 3 of the Statute of the Court (crimes against humanity).

Vincent Rutaganira was Conseiller for Mubuga secteur, a post he held when the relevant conduct occurred. Being an important figure in his secteur and also by the duties of his position, he was a channel between the local population and the local political structure. Between April 8 and April 15, 1994, thousands of Tutsi civilians sought refuge in the Mubuga church. Between April 14 and April 17 of the same year, thousands of Tutsi civilians were attacked in the church and killed. Among the civilians there were men, women, and children. Rutaganira knew of the fact that Tutsi civilians sought refuge in the said church and also saw the attackers assembling. The attackers included armed Hutu civilians, members of the communal police and national gendarmerie. Despite his knowledge of these facts, Rutaganira took no actions to protect the Tutsi. The Court made the following findings:

• The attacks on the Tutsi in the church constituted a crime against humanity (extermination)
• Rutaganira’s participated in this crime of extermination by aiding and abetting the commission of the crime.

The Court, in determining Rutaganira’s participation in the crime, concluded that he had the power to act and did not choose to exercise it, that he had the authority over the principal actors to prevent the commission of the crime, and that a legal duty to act rested upon him.

The Court found that there were mitigating circumstances in favor of Rutaganira and sentenced him to six years’ imprisonment.

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United Nations Compensation Commission (UNCC): Report and Recommendations of the “D1” Panel of Commissioners Concerning the Special Installment of Deceased Detainee Claims Filed Pursuant to Governing Council Decision 12 S/AC.26/2005/1 (March 10, 2005)

Click here for the report.

The Governing Council of the UNCC concluded its fifty-fifth session on March 10, 2005 and approved awards of US$265,472,128.47 for compensation. The Governing Council approved five reports and recommendations of the Panels of Commissioners in respect of category “A” claims (claims of individuals for departure from Kuwait or Iraq), category “C” claims (claims of individuals for losses up to US$100,000) category “D” claims (claims of individuals for losses over $100,000) and category “E” claims (claims of corporations, other private legal entities and public sector enterprises).

Among the reports and recommendations of the Panel of Commissioners (“the Panel”) was the report of the “D1” panel concerning the special installment of deceased detainee claims filed pursuant to Governing Council Decision 12. Governing Council Decision 12 allows individuals to file claims for losses and personal injuries including losses from detention in Iraq. The panel began its review of the special installment of deceased detainee claims in June 2004. All of the claims in this installment were submitted by Kuwait on behalf of 605 individuals who were detained by Iraqi forces during Iraq’s occupation of Kuwait during the period from August 2, 1990 to February 26, 1991. The Governing Council directed Kuwait to file a single comprehensive claim in respect of all of the losses associated with each detainee by March 31, 2004.

In May 2003, after the regime change in Iraq, Kuwait received the first official communication from the Coalition Provisional Authority which led to the discovery of a mass grave at Samawah, Al Muthanna Governorate in Iraq. This mass grave contained the remains of 149 of the detainees included on the ICRC list. Although Kuwait has declared all 605 detainees to be legally dead for the purpose of filing claims with the UNCC, only about 200 bodies that have been located to date have been positively identified.

The Panel observed that in making its factual determinations, it took into account information collected by the National Committee for Missing Persons and Prisoners of War Affairs established by the Kuwaiti government and the International Committee of the Red Cross (“ICRC”) regarding the arrest, detention and subsequent execution of the detainees. The ICRC list of detainees included 598 men and seven women of various nationalities including Kuwaiti, Bahraini, Egyptian, Indian, Iranian, Lebanese, Omani, Saudi Arabian and Syrian in addition to Bedoun previously residing in Kuwait. Many of the detainees were students, and 42 of the detainees were under the age of 18 at the time of their capture. Kuwait stated in its application that it had a moral responsibility for all of the deceased detainees and their families and it therefore filed all of the deceased detainee claims on their behalf. In cases where the detainees were non-Kuwaitis, the national governments of these detainees authorized Kuwait to file claims on the detainees’ behalf. The Kuwaiti government also conferred Kuwaiti nationality on some deceased detainees who were Iraqi nationals at the time of their capture. However, in cases where Kuwait or other countries failed to make a declaration of death of the deceased detainee, the Panel found that such claims were inadmissible. Other claims were inadmissible due to the fact that the detainees were captured in a Shiite uprising in Southern Iraq in late March 1991, and their detention was not considered to be a direct result of Iraq’s invasion and occupation of Kuwait.

In considering the appropriate “deemed” date of death for purposes of calculating the amount of compensation, the Panel found that the official date of a detainee’s capture by Iraqi forces was analogous to the actual date of death. In regard to the category D claims in this special installment, the Panel recommended a total of 604 claims for payment, and recommended an amount of US$161,140,801.39 USD as payment.

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U.S. Court of Appeals for the 11^th Circuit: Arce et al. v. Garcia and Casanova (February 28, 2005) Decision available on Lexis.

The U.S. Court of Appeals for the 11^th Circuit (“the Court”) reversed a $54.6 million jury verdict for compensatory and punitive damages against two retired generals from El Salvador for torture and other abuses that they allegedly conducted during El Salvador’s 12-year civil war.

The plaintiffs in this case are Salvadorian refugees who brought claims of torture before the district court under the Torture Victim Protection Act (“TVPA”) and the Alien Tort Claims Act (“ATCA”) in 2000. The plaintiffs claimed, inter alia, to have been severely beaten, shot, raped, and to have suffered other acts of torture and degrading treatment from 1979 to 1983.

The district court allowed the case to proceed despite the 14-year delay. In 2002, a federal jury found the defendants liable for torture and awarded damages. The defendants brought this appeal before the Court of Appeals of the Eleventh Circuit, contending that the district court should have dismissed the plaintiffs' ATCA and TVPA claims under the relevant statutes of limitations.

The Court observed noted that the TVPA contains an express ten-year statute of limitations. It noted that the ATCA, however, does not contain an express statute of limitations. It held that when confronted with a federal statute that does not contain a limitations period, it must look to the statute's closest state-law analogue to determine the limitations period. It also noted that several courts have held that the ATCA's implicit limitations period should be based on the TVPA because the statutes and the policies behind the statutes are similar.  Among the similarities are the purpose (protecting human rights), the mechanism (civil suits to protect human rights), and the location within the United States Code (provisions of the TVPA were added to the ATCA).

The Court concluded that the ATCA and the TVPA share the same ten-year statute of limitations. However, the Court also noted that these statutes of limitation could be subject to equitable tolling, and referred to the House Report accompanying the TVPA Senate Report in this regard.

The plaintiffs argued that the civil war in El Salvador qualified as an extraordinary circumstance which would justify equitable tolling of the statute of limitations in their case. The Court disagreed, noting that most of the plaintiffs and all of the defendants were in the United States in the 1980s. Moreover, concluded that given the particular facts in this case, the fact that other people or entities may have hindered the plaintiff was by itself insufficient to trigger equitable tolling. Therefore, the lack of cooperation from the Salvadoran government from 1983 (when the defendants left office) to 2000 (when the plaintiffs filed suit) was not sufficient to toll the statute of limitations.

LEGISLATION

United Kingdom House of Commons and House of Lords: Prevention of Terrorism Act 2005(March 11, 2005)

Click here for the Act.

The UK House of Lords approved the latest version submitted by the House of Commons of legislation designed to prevent terrorism, and the bill later received the Royal Assent. The passing of the Prevention of Terrorism Act (“the Act”) came as eight detainees who were jailed without charges were released on bail.

The Prevention of Terrorism Act (“the Act”) defines a “control order” as “an order against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism. Article 1, concerning the power to make control orders, provides that the Secretary of State shall have the power to make a control order against an individual, except in the case where the order is incompatible with the individual’s right to liberty under Article 5 of the European Convention on Human Rights. It further provides in Article I 2(b) that the power to make a control order may be made by the court on an application by the Secretary of State, in the case of an order which imposes obligations that include obligations to derogate from Article 5 of the European Convention on Human Rights.

Among the obligations that may be imposed by a control order are restrictions on the possession of “specified articles or substances”, restrictions on associations, occupation or communications with other persons, restrictions on movement and place of residency, the surrendering of passports and allowing access to premises.

Article 2 allows for the Secretary of State to make a non-derogating control order against an individual if he has reasonable grounds to suspect that the individual is or has been involved in terrorism-related activity and if he considers it necessary to make such a control order for the purpose of protecting members of the public from a risk of terrorism.

Article 3 provides for supervision by a court in making non-derogating control orders, and Article 4 gives courts the power to make derogating control orders. Article 4(1)(a) provides that, upon receiving the Secretary of State’s application to make a derogating order, the court must hold an immediate preliminary hearing to determine whether to make a control order that includes obligations that derogate from the European Convention on Human Rights. Such preliminary hearing may be held in the absence of the individual in question, without his having received notice of the application for the order, and without his having been given an opportunity to make any representations to the court.

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DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS

U.S. President George W. Bush: Memorandum for the U.S. Attorney-General Regarding Compliance with the Decision of the International Court of Justice in Avena (February 28, 2005)

Click here for the memorandum. Click here for the ASIL Insight by Prof. Frederick L. Kirgis

In this memorandum, President Bush notes that the United States is a party to the Vienna Convention on Consular Relations (“the Convention”) and the Convention’s Optional Protocol Concerning the Compulsory Settlement of Disputes (the “Optional Protocol”) which gives the International Court of Justice (ICJ) jurisdiction to hear disputes concerning the interpretation and application of the Convention. (See below, the U.S. subsequently withdrew from the Optional Protocol, See also, Addendum to Kirgis’s insight at http://www.asil.org/insights/2005/03/insights050309a.html)

The memorandum states that the President has determined that the United States will discharge its international obligations under the Avena case by having U.S. state courts give effect to the decision “in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.”

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BRIEFLY NOTED

United States withdraws from the Vienna Convention’s Optional Protocol Concerning the Compulsory Settlement of Disputes (March 7, 2005)

Click here for the ASIL Insight by Prof. Frederick L. Kirgis

On March 7, 2005, U.S. Secretary of State Condoleezza Rice sent a letter to the Secretary-General of the United Nations Secretary-General, which stated the following:

“This letter constitutes notification by the United States of America that it hereby withdraws from the [Consular Convention’s Optional Protocol Concerning the Compulsory Settlement of Disputes].  As a consequence of this withdrawal, the United States will no longer recognize the jurisdiction of the International Court of Justice reflected in that Protocol.”

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United States Amicus Brief in Medellin Case before the Supreme Court

Click here for the amicus brief.

The United States amicus brief addresses the following questions:

“1. Whether petitioner can make the “substantial showing of the denial of a constitutional right” (28 U.S.C. 2253(c)) necessary to obtain a certificate of appealability, in light of the fact that petitioner seeks to appeal the denial of a treaty claim, rather than a constitutional claim, and he cannot make a substantial showing that the state court's ruling rejecting his claim was contrary to, or an unreasonable application of, a Supreme Court precedent.

2. Whether the Vienna Convention on Consular Relations gives a foreign national a judicially enforceable right to challenge his conviction and sentence on the ground that he was denied consular assistance, and requires a state court to consider that claim, notwithstanding the foreign national’s procedural default by failing to raise the claim at trial or on direct appeal in the state courts.

3. Whether the decision of the International Court of Justice in Avena, 2004 I.C.J. 128 (Mar. 31), that petitioner is entitled to "review and reconsideration" of his conviction and sentence establishes, by itself, a rule of decision in petitioner's case.

4. Whether the President’s determination, pursuant to the United Nations Charter and his foreign affairs authority, that the Avena decision is enforceable in state court, in accordance with principles of comity and without respect to state rules of procedural default, is valid.”

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