Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law January 27, 2006
CALL FOR PAPERS: 2006 International Economic Law Interest Group
Annual Conference at Bretton Woods
TREATIES, AGREEMENTS AND RELATED DOCUMENTS
Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III) (December, 8 2005)
Click here for the document (in French, English, and Spanish).
This protocol establishes a new distinctive emblem in addition to the already existing emblems, the red cross and the red crescent. This additional emblem is composed of a red frame in the shape of a square on edge on a white ground, and is referred to as the “third Protocol emblem.”
According to the website of the International Committee of the Red Cross (ICRC), this emblem, which is also known as the red crystal, is free from any religious, political or other connotation, and will “provide a comprehensive and lasting solution to the emblem question.” According to an ICRC press release, this Protocol “should pave the way for the full entry into the Movement of both Israel's Magen David Adom and the Palestine Red Crescent Society.”
The Eritrea Ethiopia Claims Commission (the “Commission”) dismissed Ethiopia’s claim 6, which related to alleged “injuries suffered by Ethiopia due to the closings of Eritrean ports to Ethiopian trade and to takings of the property of Ethiopia and of Ethiopian nationals by Eritrea.”
After Eritrea gained independence in 1993, Ethiopia remained landlocked, and much of Ethiopia’s export and import cargo was transported by truck through the port of Assab, Eritrea.
Ethiopia claimed that Eritrea, inter alia, violated customary international law when it “confiscated large amounts of property belonging to the Ethiopian government, Ethiopian nationals and international aid organizations in Eritrean ports in May 1998.” Ethiopia contended that several actions by Eritrea constituted a taking of property:
Eritrean officials directed Ethiopia’s Maritime and Transit Service Enterprise to close its office in Assab,
Eritrea blocked access by trucks seeking to pick up fuel,
Eritrea closed access to freight traffic.
Eritrea denied that its port was closed to cargo going to and from Ethiopia and asserted that much of the cargo in question was in fact not property of Ethiopia, as it had been supplied by various aid organizations and, and that title had not passed to Ethiopia. Eritrea further contended that it did not “wrongfully expropriate” Ethiopian property when it sold and diverted perishable cargo stranded in the port of Assab. As to other stranded goods, Eritrea indicated that these were stored and available for delivery to Ethiopia.
Although the Commission did not make a definite finding on whether Eritrea stopped the flow of cargo or whether Ethiopia rerouted its commerce, it stated that “[t]he right of a party to an international armed conflict to restrict or terminate trade and commerce between itself and an opposing party to the conflict has been clearly established, and is evidenced by extensive State practice.” It concluded that “it was lawful for Eritrea to terminate Ethiopia’s access to the port of Assab.”
Finally, the Commission held that Eritrea had not acted unreasonably or unlawfully with respect to the stranded cargo and therefore dismissed Ethiopia’s claim.
The European Court of Human Rights (the “Court”) held by six votes to one that there has been a violation of Article 8 (right to respect for the applicant’s home) and Article 1 of Protocol No. 1 (protection of property) of the European Convention on Human Rights.
The applicant is a Cypriot national of Greek-Cypriot origin who owns land in Famagusta. There are three houses on the plot that belongs to her, and one of them was her home in which she lived with her husband and her children. She also owns part of a plot of land with an orchard. The applicant has been denied access to her home since the Turkish invasion of Cyprus in July and August 1974.
The Court reiterated its previous jurisprudence in Cyprus v. Turkey, in which it found that the “complete denial of the right of Greek-Cypriot displaced persons to respect for their homes in northern Cyprus since 1974 constituted a continuing violation of Article 8 of the Convention.”
The applicant also submitted that the “continuous denial of access to her property in northern Cyprus and the ensuing loss of all control over it and all possibilities to use and enjoy it, constituted a violation of her right to peaceful enjoyment of property under Protocol No. 1”. In this respect the Court reiterated its findings in Loizidou v. Turkey, in which it stated that “as a consequence of the fact that the applicant has been refused access to the land since 1974, she has effectively lost all control over, as well as possibilities to use and enjoy her property. The continuous denial of access must therefore be regarded as an interference wit her rights under Article 1 of Protocol 1. … In such circumstances, the Court concludes that there has been and continues to be a breach of Article 1 of Protocol No. 1.” The Court declared that it saw no reason to depart from this approach and held that the applicant’s property rights had been violated. Moreover, the Court stated that it “cannot ignore the fact that there are already approximately 1,400 property cases pending before the Court brought primarily by Greek-Cypriots against Turkey.” The Court then stated that “a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put and end to the violation found by the Court and to redress so far as possible the effects…. The Court considers that the respondent State must introduce a remedy, which secures genuinely effective redress for the Convention violations identified in the instant judgment in relation to the present applicant as well as in respect of all similar applications pending before the Court.”
The Court adjourned the issue of damages, stating that this was being done in view of the “relevant general measures” Turkey should adopt as provided in the judgment.
The Hague District Court (the "Court") handed down its judgment in the case against Frans Van Anraat, in which it found Van Anraat guilty of complicity in war crimes committed in Iraq. The Court sentenced Van Anraat to 15 years of imprisonment.
Van Anraat, a Dutch businessman, supplied raw materials to the government of Iraq that were used for the development of mustard gas which was later used to attack the Kurdish population of Halabja in 1988. During this operation, tens of thousands of civilians are alleged to have been killed or maimed. 5000 civilians became victims of the Halabja massacre.
Stating that the attacks against the Kurdish population of Iraq were carried out with the intent to destroy it, in whole or in part, the Court concluded that these attacks were acts of genocide. Van Anraat was acquitted of the charges of genocide, because the Court did not find sufficient evidence of Van Anraat’s knowledge of the genocidal intent of the Iraqi government.
The Court awarded fifteen Kurds from Iraq and Iran, who had joined the trial as civil parties the nominal amount of EUR 680.
The defense lawyers said that they would appeal the judgment.
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