Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law December 16 , 2005
Allowing
the appellants’ appeals, the House of Lords
unanimously held that evidence obtained by torture
by officials of a foreign state without the participation
of British authorities is not admissible before
the Special Immigration Appeals Commission (the
SIAC”).
Under
the Anti-terrorism, Crime
and Security Act 2001 (the “ATCSA”),
the Secretary of State can issue a certificate
in respect of a foreign (non-UK) national whom
he reasonably believes to pose a risk to national
security and whom the Secretary reasonably suspects
of being a terrorist. A person certified under
the ATCSA can challenge this certification before
the Special Immigration Appeals Commission (the “SIAC”).
The
appellants are non-UK nationals who were certified
and detained. The appellants challenged their certification
before the SIAC, which dismissed all the appeals.
When the issue came before it, the Court of Appeals
upheld the decision of the SIAC, which found “that
the fact that evidence had, or might have been,
procured by torture inflicted by foreign officials
without the complicity of the British authorities
was relevant to the weight of the evidence but
did not render it legally inadmissible.”
The
appellants submitted that “the common law
forbids the admission of evidence obtained by the
infliction of torture … irrespective of where,
by whom or on whose authority the torture was inflicted.” They
also based their arguments on the European
Convention on Human Rights, and on principles
of public international law.
The
Secretary of State, who indicated that he did not
intend to use the evidence possibly procured by
means of torture by foreign officials, contended
that he would refrain from using this evidence
as a matter of policy, but not as a matter of law.
Lord
Bingham, who delivered the main judgment, rejected
the arguments of the Secretary of State, stating
that “the English common law has regarded
torture and its fruits with abhorrence for over
500 years, and that abhorrence
is now shared by over 140 countries which have
acceded to the Torture Convention. I am startled,
even a little dismayed, at the suggestion (and
the acceptance by the Court of Appeal majority)
that this deeply-rooted tradition and an international
obligation solemnly and explicitly undertaken can
be overridden by a statute and a procedural rule
which make no mention of torture at all. … The
issue is one of constitutional principle, whether
evidence obtained by torturing another human being
may lawfully be admitted against a party to proceedings
in a British court, irrespective of where, or by
whom, or on whose authority the torture was inflicted.
To that question I would give a very clear negative
answer.” Lord Bingham concluded that the
exclusion of “third party torture evidence” was
mandated by common law, as well as the European
Convention on Human Rights.
On
the issue of burden of proof, the appellants contended
that once challenged, evidence would have to be
established as admissible by the party seeking
to introduce it. The Secretary of State submitted
that the party trying to challenge the evidence
would have to “make good factual grounds
on which he bases his challenge.” The Court
did not take a unanimous decision on what requirements
would have to be met in order for the evidence
to be excluded.
Supreme Court of Israel: Adalah -
The Legal Center for Arab Minority Rights in
Israel et al. v. GOC Central Command, IDF, The
Minister of Defense, The Prime Minister of Israel
(October 6, 2005)
The
Court, sitting as the High Court of Justice, held
that the “early warning” procedures
are incompatible with international law.
Seven
human rights organizations (the “petitioners”)
asked the Court to declare the “early warning” procedures
of the Israeli military illegal, arguing that they
violated Israeli constitutional law and fundamental
norms of public international law. In this “early
warning” procedure, local Palestinian residents
are solicited to go to the building where the wanted
person is and to ask that person to surrender.
The petitioners described, inter alia, “cases
in which the Israel Defense Forces (the “IDF”)
forced Palestinian residents to walk through and
scan buildings suspected to be booby-trapped, and
in which it ordered them to enter certain areas
before the combat forces, in order to find wanted
persons there; also described are cases in which
the army used residents as a human shield which
accompanied the combat forces, to serve as a shield
against attack on those forces.”
In 2002, the Court issued an
interlocutory injunction, ordering the respondents
to refrain from using Palestinian residents as “human
shields” or as “hostages.” After
the injunction was issued, the petitioners submitted
testimony of Palestinians who claimed to have forcibly
been used for both practices in violation of the
injunction.
The petitioners argued, inter alia,
that the “early warning” procedure
was, “in fact, the use of a protected civilian
as a ‘human shield,’” and that
the fact that the civilian might consent to it
did not change matters, as the protection granted
to civilians by virtue of international humanitarian
law could not be waived, and that, in any case,
the consent was not true consent. Further the petitioners
contended that the “early warning” procedure
violated several articles of the Fourth Geneva
Convention of 1949, including Articles 3, 8, 27,
28, 47 & 51 and also violated Article 51 (7)
of the first protocol of the Geneva Convention
of 1977. According to the petitioners, this “early
warning” procedure did not meet the requirements
of international humanitarian law, as it endangers
the civilian population.
The respondents
submitted that there were instructions in force,
according to which the IDF was prohibited from
using Palestinian civilians as a live shield (to
position civilians alongside army forces in order
to protect the soldiers from injury) or to hold
Palestinian civilians as hostages (to seize and
hold civilians as a means to pressure others).
However, the respondents argued that the so-called “early warning” procedure
did not constitute a violation of international
law and was therefore not prohibited by the instructions.
The respondents contended that as this procedure
was employed “in order to minimize the danger
of wounding innocent civilians and the wanted persons
themselves,” it was proportional and legal.
As to the alleged violations of the injunction,
the respondents contended that these cases were
merely isolated cases and were being investigated.
The Court
stated that “it is
clear that the army is not permitted to use local
residents as a human shield,” and then addressed
the question of the legality of the early warning
procedure in cases where the local resident consented
to relay the warning. Balancing the interests at
issue, i.e. the protection of local residents and
the person to be arrested on the one hand, and
the occupying army’s duty to safeguard the
life and dignity of the residents used to relay
the warning on the other hand, the Court referred
to a general principle of the law of belligerent
occupation, according to which the occupying army
has to refrain from using “protected residents
as a part of the war effort.” According to
the Court, this basic principle also meant that
the military was not permitted to use civilians
as “human shields” and that it also
mandated the prohibition of the “use of local
residents for relaying warning form the army to
those whom the army wishes to arrest.”
The Court
also based this conclusion on another principle,
which demands that the military separate civilians
from military activity. Therefore, the Court continued,
the military was prohibited from using civilians
for this purpose, even in the case of consent.
As to the issue of consent, the Court also noted
that “in light of the
inequality between the occupying force and the
local resident, it is not to be expected that that
the local resident will reject the request that
he relay a warning to the person whom the army
wishes to arrest.” Holding that the “early
warning” procedures are “at odds with
international law,” the Court converted the order
nisi into an order absolute.
The
European Court of Human Rights (the “Court”)
unanimously held that there was a violation of
Article 2 (right to life), Article 3 (prohibition
of inhuman or degrading treatment), and Article
13 (right to an effective remedy) of the European
Convention on Human Rights.
The
applicant’s husband, Georgiy Gongdaze, was
a political journalist and editor-in-chief of an
online journal, the “Ukrainskaya Pravda.” He
frequently reported on the lack of freedom of speech
in Ukraine as well as on issues dealing with corruption
involving high-level State officials.
In
an open letter to the Prosecutor General, Gongdaze
indicated that he was being followed and that friends
and relatives of his were being questioned about
him by law enforcement officers. Gongdaze disappeared
in September 2000. A decapitated body was found,
on November 2, 2000, and was identified by the
relatives to be the body of Mr. Gongdaze. The same
month, the chairman of the socialist party announced
the existence of tapes which allegedly implicated
the then President Kuchma and the then Minister
of the Interior in the disappearance of Mr. Gongdaze.
The Prosecutor General then announced that the
body found was not Mr. Gongdaze.
Following
newspaper reports and announcements of the Reporters
Sans Frontières,
which claimed that the body found was the body
of Mr. Gongdaze, an official
of the Ministry of the Interior was arrested but
later released on his undertaking not to abscond.
When
Viktor Yushchenko was
elected President of Ukraine in 2004, a new investigation
began, and the office of the prosecutor announced
that DNA tests conducted in Germany proved that
the body was in fact that of Mr. Gongdaze.
The ad hoc investigating committee found
that former President Kuchma and
other high-ranking officials had organized the
kidnapping and murder of Mr. Gongdaze, and also
noted that the prosecutor’s office
had not taken any action following the ad hoc committee’s
conclusions.
Relying
on Articles 2, 3, and 13 of the European Convention
on Human Rights, the applicant complained that
the authorities failed to protect the life of her
husband. She also complained of a failure of the
Ukrainian authorities to investigate Mr. Gongdaze’s
disappearance and death, and of the failure of
the state authorities to investigate the involvement
of high State officials in the killing.
The
Court noted that the prosecutor had not taken action
when he received the open letter from Mr. Gongdaze,
and that he failed to investigate the disappearance
and death of Mr. Gongdaze as
well as the involvement of state officials in the
case. For this reason, the Court found a violation
of Article 2 of the Convention for both, the failure
to protect Mr. Gongdaze’s life
as well as a failure to effectively investigate
the case. Due to the fact that the applicant was
not granted full access to the files until five
years after his disappearance, the Court also found
that this caused the applicant and her family serious
suffering, which amounted to a violation of Article
3 of the Convention. Lastly, the Court found that
Ukraine also violated Article 13 of the Convention
by its failure to investigate the killing of Mr.
Gongdaze, and that the applicant was therefore
denied an effective remedy. The Court awarded the
applicant the sum of EUR 100,000 in respect of
pecuniary and non-pecuniary damages.
The
Appellate Body upheld most of the Panel’s
findings, concluding, inter alia, that certain
provisions of Mexico’s Foreign Trade Act (“FTA”)
are inconsistent with the Anti-Dumping Agreement and
the Agreement on Subsidies and Countervailing Measures (“SCM
Agreement”). It recommended that
the WTO Dispute Settlement Body request Mexico
to bring its inconsistent measures into conformity
with its obligations under those agreements.
Among
the numerous issues raised in this appeal were
(1) whether the Panel exceeded its terms of reference
in regard to its conclusions concerning Mexico’s
period of anti-dumping investigation; (2) whether
the Panel erred in finding that several provisions
of Mexico’s FTA were inconsistent with the
Anti-Dumping Agreement and the SCM Agreement. Mexico
argued that the Panel restructured the United States’ argument
regarding the period of the dumping investigation
and that it therefore exceeded its mandate in its
terms of reference. In this regard the Appellate
Body noted that the terms of reference of a panel
define the scope of the dispute, and that pursuant
to Article 7 of the Understanding on
Rules and Procedures Governing the Settlement of
Disputes (“DSU”),
panels are not allowed to address legal claims
falling outside their terms of reference. However,
it concluded that a WTO panel is not obliged to
limit its legal reasoning to the arguments presented
by the parties, citing EC-Hormones,
which stated that “…nothing in the
DSU limits the faculty of a panel freely to use
arguments submitted by any of the parties-or to
develop its own legal reasoning-to support its
own findings and conclusions on the matter under
its consideration.”
Mexico contended that
the Panel, in determining that various provisions
of the FTA were inconsistent with Mexico’s obligations under the WTO,
failed to comprehend that Article 2 of the FTA
provides that the FTA should not be applied in
a manner contrary to any international treaty signed
by Mexico, including the WTO Agreements. Mexico
submitted that had the Panel properly understood
the challenged provisions of the FTA in light of
Article 2, it would have concluded that the FTA
gives the Mexican trade authority discretion to
act in a manner consistent with its obligations
under the WTO. The Appellate Body found that this
aspect of Mexico’s appeal should have been
brought under Article 11 of the DSU, since it claimed
that the Panel disregarded the evidence and made
unsubstantiated findings, instead of contesting,
on the merits, the Panel’s decision rejecting
the relationship between Article 2 of the FTA and
its challenged provisions. The Appellate Body therefore
found that the Panel did not disregard Article
2 of the FTA in concluding that the challenged
provisions were “mandatory measures” requiring
the Mexican trade authority to take certain actions
in given circumstances.
The ad
hoc annulment committee (“the annulment
committee”) held that the Tribunal “committed
no annullable errors in arriving at its Award” and
it dismissed the Republic of Seychelles’ (“the
Seychelles”) application for annulment.
It also held that the Seychelles would have to
bear the costs of CDC’s legal expenses.
The
award in question found the Seychelles liable for
breach of its obligations under a loan agreement.
Article
52 of the ICSID Convention provides for the grounds
for annulment of ICSID awards as follows:
(1)Either party may request annulment
of the award by an application in writing addressed
to the Secretary-General on one or more of the
following grounds:
(a)that the Tribunal was not properly
constituted;
(b)that the Tribunal has manifestly exceeded
its powers;
(c)that there was corruption on the part
of a member of the Tribunal;
(d)that there has been a serious departure
from a fundamental rule of procedure; or
(e)that
the award has failed to state the reasons on which
it is based.
In
this case, the Seychelles invoked grounds (b),
(d) and (e) in support of its application.
The
annulment committee noted at the outset that Article
52(1) “looks not to the merits of the underlying
dispute as such, but rather is concerned with the
fundamental integrity of the tribunal, whether
basic procedural guarantees were largely observed,
whether the Tribunal exceeded beyond the parties’ consent,
and whether the Tribunal’s reasoning is coherent
and displayed” and referred to Prof. David
Caron’s observation that annulment concerns
the “legitimacy of the process of the process
of decision” rather than the “substantive
correctness of decision.”
The
Seychelles submitted, inter alia, that the
Tribunal failed to apply English law, and failed
to issue its award within the time limit provided
by ICSID Arbitration Rule 46, and that such failures
resulted in a serious departure from a fundamental
rule of procedure. The annulment committee noted
the dual requirement that the departure be “serious” and
that the rule be “fundamental.” It
found that the Tribunal indeed applied English
law, and that the award was issued in a timely
manner within the ICSID rules. The annulment committee
also dismissed all claims alleging improper conduct
and bias on the part of the Tribunal.
In
regard to the Seychelles’ claim that the
Tribunal failed to state the reasons on which the
award was based, the annulment committee cited
the Wena Hotels annulment committee decision (41
ILM 933 (2002); 6 ICSID Rep. 129 (2004)) which
stated that “[t]he ground for annulment of
Article 52(1)(e) does not allow any review of the
challenged Award which would lead the ad hoc Committee
to reconsider whether the reasons underlying the
Tribunal’s decisions were appropriate or
not, convincing or not.” The annulment committee
stated that Article 52(1) requires the Tribunal
to state reasons and requires that the reasons “be
coherent, i.e. neither ‘contradictory’ nor
frivolous.’” In this case the annulment
committee considered the award to be entirely coherent
and dismissed the Seychelles’ arguments.
U.S.
Court of Appeals for the Eighth Circuit: Kimumwe
v. Gonzales (December 13, 2005)
The
U.S. Court of Appeals for the Eighth Circuit (“the
Court”) denied the petition for review of
the applicant’s asylum claim.
The
applicant, a national of Zimbabwe who fled his
country in March 2002, sought asylum, withholding
of removal and protection under the Convention against Torture (“CAT”)
on the grounds that he was a homosexual, who, if
returned to Zimbabwe, would suffer persecution
by the Zimbabwean government on account of his
sexual orientation.
The
applicant cited incidents from his youth in Zimbabwe
to support his claim for past persecution, including
being expelled from a secondary school that prohibited
all sexual activity, and being detained in jail
for two months for having engaged in sexual activity
at age 15 (in 1998). The Zimbabwe police detained
him for two months, but did not charge him with
a criminal offense. The applicant was released
from jail following a bribe from the head of the
orphanage where he was raised. The police gave
him a letter which stated that he had been charged
with sodomy and sexual assault, but was released
for lack of evidence. President Robert Mugabe declared
homosexuality illegal in 1998, and following this
law and further anti-homosexual statements by President
Mugabe, the applicant fled to Kenya and then to
the United States with the assistance of the Gay
and Lesbians of Zimbabwe organization.
The
applicant contended that the immigration judge
wrongly concluded that, based mostly on his allegations
of past persecution in Zimbabwe, the applicant
had failed to satisfy the burden of showing a well-founded
fear of future persecution. The immigration judge
had concluded that the actions of the Zimbabwean
authorities, namely expulsion from school and detention
in jail, were not based on the applicant’s
sexual orientation, but rather on his involvement
in prohibited sexual conduct.
The
Court upheld the immigration judge’s decision,
finding that a reasonable adjudicator could conclude
from the facts in this case that the Zimbabwean
government’s action was not taken because
of the applicant’s sexual orientation, but
rather due to allegations of sexual misconduct.
This was so, according to the Court, even assuming
that the sanction was extreme enough to constitute
persecution and assuming that homosexual status
constitutes a “particular social group” for
purposes of U.S. Immigration law (8 CFR section
208).
The
European Court of First Instance (the “Court”)
upheld the decision of the Commission, which held
that the merger between Honeywell and General Electric
was incompatible with the common market.
Honeywell
and General Electric sought to annul that decision
before the Court. The Court found that the merger
would create or strengthen dominant positions,
which would lead to an impediment of effective
competition on the following three markets:
1)the market for jet engines for large
regional aircraft
2) the market
for engine for corporate jet aircraft
3)The market for small marine gas turbines
Although
not altering its decision on the annulment action,
the Court found that the Commission erred in other
aspects of the case.
This
decision is not final, as it can be appealed within
two month’s notification.
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