Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law August 25, 2005
The Appeals Chamber dismissed all grounds of Deronjic’s appeal and affirmed the sentence of 10 years’ imprisonment as imposed by the Trial Chamber.
The events relating to this case took place in eastern Bosnia and Hezegovina in May 1992. Deronjic, who was then President of the Bratunac Crisis Staff and a member of the Serbian Democratic Party of Bosnia and Herzegovina, ordered an attack on the village of Glogova. During this attack 64 Muslim civilians were killed, Glogova was burned down in part, and Bosnian Muslim houses and property as well as the mosque of the village were destroyed. The Trial Chamber sentenced Deronjic to 10 years of imprisonment for his participation in a joint criminal enterprise, whose objective was to permanently remove Bosnian Muslims from the village of Glogova.
Deronjic appealed the sentencing judgment, asserting, inter alia, the applicability of the principle of lex mitior. This principle commands that if a law relating to the offense is enacted or amended after the offence was committed, the more favorable law has to be applied. Deronjic argued that, pursuant to this principle, the law of concurrent jurisdictions, such as the national laws of the former Yugoslavia, had to be considered. Citing its decision in Nikolic, the Court reiterated that the principle only applied to laws that are binding upon the ICTY. As the laws of the former Yugoslavia are not binding upon the Court, the Appeals Chamber held that the principle was inapplicable as to those laws and sentencing practices.
Deronjic further asserted that the Trial Chamber erred in considering certain aggravating factors in the sentencing judgment, because those factors are “either subsumed in the overall gravity of the offence for which he was convicted, or are incorporated as constitutive elements of the crime.” While agreeing with Deronjic that the gravity of the crime cannot also be considered as an aggravating factor, the Appeals Chamber rejected the ground of appeal as it found that the Trial Chamber had in fact made a proper distinction between aggravating circumstances and the gravity of the offence.
For more resources on international criminal tribunals, see EISIL.
The Appeals Chamber confirmed the sentence imposed by the Trial Chamber.
This appeal relates to events that occurred in Croatia between August 1991 and June 1992. The appellant entered into a plea agreement, which was “accepted” by the Trial Chamber. Babic was convicted for having participated in a joint criminal enterprise whose purpose was to permanently and forcibly remove the majority of the Croat and other non-Serb population from part of the territory of Croatia. Babic was sentenced to 13 years’ imprisonment.
In his first ground of appeal, Babic challenged the validity of the plea agreement, stating that he was “coerced” into entering a plea of guilty as a co-perpetrator to the joint criminal enterprise. Initially, Babic had submitted a plea in which his participation to Count I of the indictment (persecution on political, racial, and religious grounds as a crime against humanity pursuant to Article 5 (h) of the Statute of the Tribunal) was described as that of aiding and abetting a joint criminal enterprise. After the Trial Chamber “expressed doubts” about this characterization, Babic filed a new plea in which he described his participation as a co-perpetration to the joint criminal enterprise. The Appeals Chamber noted that the plea agreement stated that Babic entered it “freely and voluntarily”, and rejected the argument of coercion. Babic furthermore argued that the Trial Chamber should have allowed him to enter an “open plea” to the crime of persecution, leaving the determination of his culpability to the Trial Chamber. The Appeals Chamber noted that there was no practice of “open pleas” at the Court and it also pointed out that accepting such a plea would be inconsistent with the Rules of the Court which require that the plea be “unequivocal and made with full knowledge of its nature and consequences.”
Babic next argued that his limited participation in the joint criminal enterprise should have been taken into account by the Trial Chamber as a mitigating factor, resulting in a reduced sentence. Responding to Babic’s arguments that he did not have authority or effective control over the crimes committed, the Court reiterated that “[c]o-perpetratorship in a joint criminal enterprise, …only requires that the accused shares the mens rea or intent to pursue a common purpose. …Participation in a joint criminal enterprise does not require that the accused commit the actus reus of a specific crime provided for in the Statute.”
The Court accepted in part, however, Babic’s sixth ground of appeal, in which he argued that the Court had erred in failing to take into account his conduct subsequent to the crime as a mitigating circumstance. Although Babic had “made efforts towards the peaceful cohabitation between Croats and Serbs,” the Trial Chamber had refused to take this conduct into account, as it considered that it had not “alleviated the suffering of victims.” The Appeals Chamber did not amend the sentence, as it held that the “sentence must always be proportionate to the gravity of the crime” and that the “complete picture” of the crime did not necessarily mandate a reduction of the sentence.
For more resources on war crimes and crimes against humanity, see EISIL.
The tribunal dismissed all of Methanex’s claims and held that Methanex, as the unsuccessful party as to both jurisdiction and the merits of its claim, would bear the costs of the arbitration, in the total amount of US $1,071,539.21 (including interest).
Methanex’s claim relates to the production and sale of a methanol-based source of octane and oxygenate for gasoline, known as methyl tertiary-butyl, or MTBE. Methanex, a producer of methanol, alleged that the ethanol industry in the United States is a domestic industry that receives special U.S. government protection. Methanex claimed that the California regulations banning the sale and supply of California gasoline that has been produced with MTBE were discriminatory, sham environmental regulations put into place in order to benefit and protect the U.S. ethanol industry, a direct competitor of the methanol industry.
Methanex alleged, inter alia, that the United States, as a result of the California regulations, violated Article 1102 of NAFTA Chapter Eleven, since the regulations were designed to deny foreign methanol producers, including Methanex, the best treatment the United States accords to domestic ethanol investors. Methanex also contended that the U.S. was in breach of Article 1105 of NAFTA, as the measures in question were intended to discriminate against foreign investors and their investments, in violation of fair and equitable treatment. Methanex further alleged that the U.S. measures were tantamount to expropriation in violation of Article 1110 of NAFTA.
The tribunal concluded that Methanex failed to meet its burden of proof for all of its claims. It found, inter alia, that “[f]ar from trying to assist the ethanol industry to become the oxygenate of choice, California determined that the newest version of its reformulated gasoline could meet EPA standards without using oxygenates [either methanol or ethanol based] in substantial parts of the market and applied to the EPS for a waiver of the Clean Air Act’s oxygenate requirement. This application, which was still being pursued by California at the closing of the main hearing in this case, is inconsistent with the hypothesis that the California Executive Order and its implementing regulations were designed to injure MTBE and methanol producers in order to transfer the market to the ethanol industry or to encourage the development of an ethanol industry in California.”
One of the major issues in dispute between the parties was the meaning of “like circumstances” in the national treatment provisions of NAFTA Article 1102. According to Methanex, once the tribunal determines that the U.S. ethanol industry is “in like circumstances” with Methanex and its investments, then the tribunal should decide whether any portion of the U.S. ethanol industry received better treatment than Methanex and its investments, and, if it were to find that Methanex did not receive the most favorable treatment, the burden would then shift to the United States to justify the disparate treatment. The United States proposed that “[t]he function of addressing nationality-based discrimination is served by comparing the treatment of the foreign investors to the treatment accorded to a domestic investor that is most similarly situated to it. In ideal circumstances, the foreign investors of a foreign-owned investment should be compared to a domestic investor or domestically-owned investment that is like it in all relevant respects, but for nationality of ownership. When nationality is the only variable, such a comparison serves the Article’s purpose of ascertaining whether the treatment accorded differed on the basis of nationality.”
The tribunal disagreed with Methanex, and, citing Pope and Talbot, noted that the tribunal’s analysis must select the entities that were in the most “like circumstances” and not comparative industries (such as the ethanol industry) that were in less “like circumstances.” It held that “[i]t would be a forced application of Article 1102 if a tribunal were to ignore the identical comparator and to try to lever, in an, at best, approximate (and arguably inappropriate) comparator.” The tribunal concluded that the fact remains that 47% of methanol producers in the United States are domestic producers, and the California ban resulted in the same impact on U.S. methanol producers as on the Canadian methanol producer, Methanex.
European Court of Human Rights (ECHR) Siliadin v. France (July 26, 2005)
The judgment is available in French on the Court’s website.
The Court held that there has been a violation of Article 4 (prohibition of slavery and forced labor) of the European Convention on Human Rights.
The applicant, a national of Togo, came to France in 1994 at the age of 15. She arrived in France with Mrs. D, a French national of Togolese origin. The applicant was held as an unpaid servant at the house of Mr. And Mrs. D, and her passport was taken away from her. She was supposed to stay with this couple until she had “earned” enough money to pay back the money for the airfare from Togo to France. The same year, Mrs. D “lent” the applicant to another couple, where she was to help in the household for a few weeks. She was made a maid for all work and had to work fifteen hours per day with no days off, and was not remunerated for her work. In 1998, the applicant told a neighbor about her situation and the Committee against Modern Slavery was put on notice. Subsequently, criminal proceedings were initiated against Mr. and Mrs. B, for wrongfully obtaining unpaid or insufficiently paid services from a vulnerable or dependent person, and for subjecting the applicant to working or living conditions incompatible with human dignity. Mr. and Mrs. B were found guilty of the first offence, but were not found guilty of subjecting the applicant to conditions incompatible with human dignity. They were ordered to pay the applicant damages.
The applicant asserted in her complaint that French criminal law had not afforded her sufficient and effective protection against the “servitude” and “forced and compulsory labor” she had been subjected to. The Court considered that Article 4 of the Convention enshrines one of the core values of the democratic societies that form the Council of Europe. It observed that with respect to this provision, the mere abstaining from infringement by a state would not be sufficient to protect the rights guaranteed by Article 4 of the Convention. Rather, “positive obligations” rest upon the states to ensure that criminal legislation penalized behavior that falls under the acts prohibited under Article 4. The Court determined that the applicant had been subjected to forced labor and servitude within the meaning of Article 4 of the Convention.
In its determination of whether French law had failed to afford the required protection, the Court noted that the Parliamentary Assembly of the Council of Europe in one of its recommendations had expressed its regret that none of the Council member states had expressly recognized domestic slavery in their criminal codes. The Court also made note of the fact that Mr. and Mrs. B had ultimately not been convicted in criminal proceedings, and also observed that the criminal provisions which were in effect at the time, were open to different interpretations. The Court concluded that the legislation in force at the relevant time did not afford the necessary protection and that France therefore failed to fulfill its obligations under Article 4 of the Convention.
For more resources on the European Court of Human Rights, see EISIL.
Memorandum of Understanding Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Hashemite Kingdom of Jordan Regulating the Provision of Undertakings in Respect of Specified Persons Prior to Deportation (August 10, 2005)
The Memorandum of Understanding Between the Government of the United Kingdom of Great Britain and Northern Ireland (the “U.K”) and the Government of the Hashemite Kingdom of Jordan (“Jordan”) Regulating the Provision of Undertakings in Respect of Specified Persons Prior to Deportation (the “MOU”) applies “to any person accepted by the receiving state for admission to its territory following a written request by the sending state under the terms of this arrangement.”
The MOU sets forth understandings regarding the international human rights obligations of the U.K. and Jordan in respect of persons deported to either of the countries. The understandings section provides that once a person is arrested, detained or imprisoned, the returned person must be afforded adequate accommodation, food, medical care and shall be treated in a humane manner. It provides that a returned person who is arrested or detained must be brought promptly before a judge or other legal officer, that he must be informed of the charges against him, and that he must receive a fair and public hearing without undue delay. It also states, inter alia, that a returned person who is charged with an offense following his return must be allowed adequate time and facilities to prepare his defense, and shall be allowed to examine witnesses against him.
Deadline for submission of paper proposals: December 15, 2005. Written papers must be submitted only via email and no later than June 30, 2006. Applicants are invited to submit a paper proposal, including paper title and a substantial abstract to the following address: vancouver2006@googlemail.com
Organisers:
Noemi Gal-Or, Institute for Trasnborder Studies (ITS), Kwantlen University College (Canada)
Klaus-Gerd Giesen, Observatoire des mutations étatiques européennes de la Faculté de Droit et de Science Politique, Université d'Auvergne (France)
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