International Law In Brief

Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
April 26 , 2005

©2005 American Society of International Law
(Educational copying is permitted with due acknowledgment)

JUDICIAL AND SIMILAR PROCEEDINGS

WTO Appellate Body Report: Dominican Republic-Measures Affecting the Importation and Internal Sale of Cigarettes (April 25, 2005)

  U.S. Court of Appeals for the Ninth Circuit: Alperin, Romanova, Organization of Ukrainian Antifascist Resistance Fighters et al. v. Vatican Bank, Croatian Liberation Movement et al. (April 18, 2005)

  Audiencia Nacional of Spain: Sentence for Crimes Against Humanity in the Case of Adolfo Scilingo (April 19, 2005)

  ECHR: Shamayev and 12 Others v. Georgia and Russia (April 12, 2005)

DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS

U.N. Security Council: Resolution 1596, The situation concerning the Democratic Republic of the Congo (April 18, 2005)

 

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JUDICIAL AND RELATED DOCUMENTS

World Trade Organization (WTO) Appellate Body Report: Dominican Republic-Measures Affecting the Importation and Internal Sale of Cigarettes (April 25, 2005)

Click here for the decision.

Both the Dominican Republic and Honduras appealed certain findings of the WTO’s Panel , which was established to consider Honduras’s claims in regard to five measures taken by the Dominican Republic related to the importation and internal sale of cigarettes. Honduras brought its claims pursuant to Articles II, III, X and XI of the General Agreement on Tariffs and Trade of 1994 (“GATT 1994.”)

The Dominican Republic argued, inter alia, that the Panel erred in interpreting and applying the term “necessary” in Article XX(d) of the GATT 1994. It submitted that the tax stamp requirement on cigarettes was necessary to secure compliance with its tax code, and the Panel failed to weigh and balance the trade impact of the measure, the importance of interests protected by the measure, the contribution of the measure to the end pursued and the existence of alternative measures that a WTO member could reasonably be expected to use. It claimed that the Panel mistakenly analyzed only the existence of reasonably available alternatives to the stamp tax measure and failed to balance other factors.

The WTO Appellate Body found no error in the WTO Panel’s interpretation and application of the term “necessary” in Article XX(d) of GATT 1994. It noted that the Panel had found that the tax stamp requirement had little effectiveness in preventing tax evasion and cigarette smuggling, and after weighing other factors, correctly concluded that it was not a necessary measure under Article XX(d) of GATT 1994. The WTO Appellate Body further upheld the Panel’s finding that the Dominican Republic’s stamp tax requirement is not justified under Article XX(d) of the GATT 1994. It further held, inter alia, that Honduras failed to establish that the Dominican Republic’s bond requirement accords less favorable treatment to imported cigarettes than that accorded to like products, in a manner inconsistent with Article II:4 of the GATT 1994. The Appellate Body further recommended that the WTO Dispute Settlement Body request the Dominican Republic to bring those measures that have been found to be inconsistent with GATT 1994 in conformity with its obligations under that agreement.

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United States (U.S.) Court of Appeals for the Ninth Circuit: Alperin, Romanova, Organization of Ukrainian Antifascist Resistance Fighters et al. v. Vatican Bank, Croatian Liberation Movement et al. (April 18, 2005)

Click here for the decision.

The U.S. Court of Appeals for the Ninth Circuit (“the Court”) allowed the claimants to proceed with their claims for conversion, unjust enrichment, restitution and an accounting against the Vatican Bank and other defendants. The Court affirmed the district court’s grant of the Vatican Bank’s motion to dismiss, however, with regard to all other claims in the complaint, including allegations that the Vatican Bank assisted the Nazi-supported Ustasha regime in committing genocide and other war crimes.

The background to the complaint relates to actions of the Vatican both during and following World War II. After Germany’s blitzkrieg through Yugoslavia in 1941, a government comprised of members of the Croatian Ustasha political regime (the “Ustasha”) was proclaimed to be the head of a protectorate of Italy. German and Italian occupation forces supported the Ustasha regime during World War II. According to a State Department Report, as many as 700,000 victims, most of whom were Serbs, were killed in Ustasha death camps. Also according to this State Department Report, “The Vatican, which maintained an ‘Apostolic visitor’ in Zagreb from June 1941 until the end of the war, was aware of the killing campaign….Croatian catholic authorities condemned the atrocities committed by the Ustasha, but remained otherwise supportive of the regime.” (Bureau of Public Affairs, U.S. Department of State, Pub. No. 10557, “The Ustasha Treasury Report”) The report also noted that following Hitler’s defeat in 1945, the leaders of the Ustasha fled to Italy where they found sanctuary at the pontifical college of San Girolamo in Rome. The report also observes that the college of San Girolamo was most likely funded in part by what remained of the Ustasha treasury. The State Department report, noting that the size of the Ustasha treasury remains in doubt, estimates that it was over $80 million of Ustasha gold in 1946.

The complaint was filed on behalf of several individuals, including Serbs, Jews and other individuals from the former Soviet Union, in addition to four organizations.  The plaintiffs, the “Holocaust Survivors”, named the Vatican Bank, the Order of Friars Minor and the Croatian Liberation Movement as defendants and claimed that the defendants profited from acts of genocide committed by the Ustasha. Their complaint advanced five causes of action, for conversion, unjust enrichment, restitution, an accounting, human rights violations and violations of international law. They alleged that the defendants’ profit passed through the Vatican Bank in the form of proceeds from looted assets and slave labor.

The district court had dismissed all of the claims on the grounds that they should be barred by the political question doctrine. The Ninth Circuit disagreed, finding that, unlike some other claims from World War II, the Holocaust Survivors’ claims were not barred by a treaty, nor was there any executive agreement covering claims against the Vatican Bank. (In contrast to the Garamendi case). It also held that the U.S. courts should be able to have a role in adjudicating claims for looted assets, noting in this regard that the property claims at issue here were similar to those claims considered by the U.S. Supreme Court last year in Altmann.  However, in regard to the claims against the Vatican Bank for its wartime conduct and for providing assistance and refuge to war criminals, the Court found that such claims could also be levied against the United States, which provided similar assistance to war criminals due to the shift in the U.S. priorities to fight communism following World War II. It found that such claims involved questions of foreign policy and were therefore barred as political questions not fit for adjudication before a court. 

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Audiencia Nacional of Spain: Sentence for Crimes Against Humanity in the Case of Adolfo Scilingo (April 19, 2005)

Click here for the decision (in Spanish); For more background on the case, click here for Prof. Richard Wilson’s ASIL Insight

Spain’s Audiencia Nacional (the “Court”) found Adolfo Scilingo guilty of crimes against humanity, in particular, for 30 pre-meditated murders, for each one of which he received a sentence of 21 years, for illegal detention, for which he received 5 years’ imprisonment, and for torture, for which he received another sentence of 5 years’ imprisonment.

Adolfo Scilingo, a former navy captain in Argentina, was found to have been involved in the “death flights” during Argentina’s military rule from 1976-1983, in which people who were considered to be subversive to the government were thrown out of airplanes. He was also found responsible for having participated in other acts of forced disappearance, kidnapping, torture and other crimes.

The Court defines the crimes against humanity in accordance with the Spanish Penal Code of 1995 (Article 607) and elaborates the discussion of the elements of these crimes by referring to jurisprudence of the International Criminal Tribunal (Kunarac, Kovac amd Vukovic, Cerkez, (Trial Chamber, among other cases) and to the text of the Rome Statute. In regard to the notion that a crime against humanity must be directed against the civilian population, the Court refers to the ICTY’s Trial Chamber decisions in Kunarac, Kovac and Vukovic. It noted that in accordance with the Appeal Chamber decisions in Kunarac, Kovac and Vukovic, it is not necessary that these crimes be directed against the entire civilian population, only against a number that sufficiently represents the civilian population. It further noted, inter alia, that an attack against the civilian population must be generalized or systematic, in accordance with Kunarac, Kovac and Vukovic (Trial Chamber decisions). The Court also referred to Article 33 of the Rome Statute, finding that Scilingo knew that his superior’s orders were manifestly unlawful, and therefore could not avoid liability for crimes against humanity for having carried out government orders.

The Court finds that the evidence was insufficient to prove that Scilingo was a member of the Task Force of ESMA it therefore declined to consider whether he was liable as a member of a criminal organization. The Court therefore convicted him only of those crimes in which he directly participated, finding that those crimes constituted crimes against humanity as incorporated in the Spanish Criminal Code.

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European Court of Human Rights (ECHR): Shamayev and 12 Others v. Georgia and Russia (April 12, 2005)

The judgment is available on the Court’s website. (Judgment available in French only)

In this extradition case, the applicants, 13 Russian and Georgian nationals of Chechen origin, lodged a complaint against Georgia and Russia, alleging violations of, inter alia, Article 2 (right to life) and Article 3 (prohibition of torture) of the European Convention on Human Rights (the Convention). The applicants were arrested in Georgia, and Russian authorities contended that the applicants were terrorist rebels who had taken part in the fighting in Chechnya and requested their extradition. Georgia granted this request with respect to five of the applicants, and four of them received prison sentences in Russia. During their detention in Georgia however, it came to a violent clash between the prison’s officers and the applicants, as the applicants had learned from the television that their extradition was imminent and refused to leave their cells when they were ordered to do so.

The applicants alleged that their extradition to Russia, where capital punishment has not been abolished, would expose them to a real danger of death or torture. The Court held that at the time the Georgian authorities took the decision, there were no serious and well-founded reasons to believe that the extradition would result in a violation of Articles 2 or 3 of the Convention. With respect to one applicant, whose extradition decision is still pending, the Court noted that there is an increased number of persecution and killings of persons of Chechen origin, evidenced by the increased number of applications lodged with the Court. The Court therefore concluded that based on the circumstances given today, it would be a violation of Article 3 of the Convention to extradite the applicant to Russia. According to the Court’s ruling, the Georgian authorities failed to provide appropriate medical treatment in good time after the violent clashes in the detention facilities and also failed to inform the applicants in a timely fashion about their extradition. This failure constituted a violation of Article 3 as well as Article 5 Sections 2 and 4 (right to liberty and security) of the Convention. Moreover, the Court ruled that the failure to inform the applicants’ lawyers about the imminent extradition also constituted a violation of Article 13 taken together with Articles 2 and 3 of the Convention, as the applicants did not have opportunity to submit their complaints to a national authority.

With respect to Russia, which had impaired a fact-finding visit and had not granted access to the applicants, the Court held that Russia had failed to discharge its obligations under Article 38 of the Convention. Finally, Russia’s failure to grant the applicants’ representatives access to them also violated Article 38 of the Convention.

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DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS

U.N. Security Council: Resolution 1596, The situation concerning the Democratic Republic of the Congo (April 18, 2005)

Click here for 2005 Security Council Resolutions.

The U.N. Security Council unanimously voted for an extension of the arms and military financing embargo issued in July 2003. Acting under Chapter VII of the UN Charter of the U.N., the Security Council extended the embargo, which now applies to “any recipient in the territory of the Democratic Republic of the Congo.” Resolution 1596 also calls on the states to ban violators of the embargo from entering or transiting into their territory. Furthermore, it provides that states shall, pursuant to the resolution, freeze violators’ financial assets and economic resources that are in their territories.

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