Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law March 21, 2006
On February 22, 2006, the Organization for Economic Co-Operation and Development (the “OECD”) adopted the Guidelines for the Licensing of Genetic Inventions (the “Guidelines”). These Guidelines set out principles and best practices for those in business, research and health systems who enter into license agreements for genetic inventions used for the purpose of human health care. They are targeted at those involved with innovation and the provision of services in health, and particularly at those involved in the licensing of such inventions. Overall, the Guidelines seek to foster the objectives of stimulating genetic research and innovation while maintaining appropriate access to health products and services. The Guidelines apply to the licensing of intellectual property rights (for the purpose of this document intellectual property rights are patents, undisclosed information, trademarks, and copyright) that relate to genetic inventions used for the purpose of human health care. Inter alia, the principles set out that “licensing practices should …. ensure that therapeutics, diagnostics and other products and services employing genetic inventions are made readily available on a reasonable basis.” The principles also state that the “licensing practices should provide an opportunity for licensors and licensees to obtain returns from their investment with respect to genetic inventions. Referring to research freedom, the principles also state that “licensing practices should increase rather than decrease access to genetic inventions for research purposes”, and that “commercial considerations in public research activities should not unduly hinder the academic freedom of researchers.”
The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (the “Appeals Chamber”) reduced the sentence of Momir Nikolic from 27 years to 20 years of imprisonment.
Momir Nikolic (the “Appellant”), who was Assistant Commander for Security and Intelligence of the Bosnian Serb Army, pleaded guilty to persecuting Bosnian Muslim civilians in Srebrenica in 1995. He admitted that he as involved in coordinating and organizing the Bosnian Serb Army’s operation to kill over 7000 Bosnian Muslim men and boys and to deport thousands of women and children.
In the proceedings at hand, Nikolic submitted, inter alia, that the Trial Chamber took into account his role in the commission of the crime twice, “as an element of the gravity of the crime as well as when making a finding on the aggravating circumstance of his position of authority and role.” The Appeals Chamber found that “the Trial Chamber committed a discernible error in taking into account twice in sentencing the role the Appellant played in the commission of the crimes” and upheld the Appellant’s third ground of appeal. The Appeals Chamber also upheld the Appellant’s fifth ground of appeal relating to an error in translation of a statement made before the Trial Chamber which adversely affected his sentence.
The Appeals Chamber rejected the Appellant’s appeal which related to whether the Trial Chamber gave sufficient credit for his guilty plea in view of the fact that he was the first Bosnian Serb to admit responsibility for his part in the events at Srebrenica. The Appellant’s seventh ground of appeal relating to whether the Trial Chamber had sufficiently taken into account his co-operation with the Prosecution was upheld in part.
Inter-American Court of Human Rights (IACHR): Interpretation of the June 15, 2005 Judgment in the Case of Moiwana Village v. Suriname (February 8, 2006)
The Inter-American Court of Human Rights (the “Court”) dismissed Suriname’s request for interpretation of the June 15, 2005 judgment (Moiwana Village v. Suriname), because the request failed to meet the requirements of Article 67 of the American Convention on Human Rights (the “Convention”).
The Court, in its Moiwana Village v. Suriname judgment held, inter alia, that Suriname had violated the right to humane treatment enshrined in Article 5(1) of the Convention, the right to freedom of movement and residence (Article 22 of the Convention), the right to property (Article 21 of the Convention), as well as the rights to judicial guarantees and judicial protection (Article 8(1)). A state-planned massacre in 1986 against the residents of the Moiwana village was the subject of that case. Suriname applied for a reinterpretation of that judgment pursuant to Article 67 of the Convention, which reads: “The judgment of the Court shall be final and not subject to appeal. In case of disagreement as to the meaning or scope of the judgment, the Court shall interpret it at the request of any of the parties, provided the request is made within ninety days from the date of notification of the judgment.”
The Court found that most of the arguments advanced by Suriname constituted “an attempt to resubmit issues of fact and law that were already decided by this Court in the chapters on admissibility, merits, or reparations of said judgment. Rather than expressing a lack of precision or clarity in the meaning or scope of the judgment, the state’s arguments merely express its disagreement with certain aspects of that judgment.”
The separate opinion of Judge Cançado Trinidade is available here.
The European Court of Human Rights (the “Court”) did not find it established that there was “any jurisdictional link between the applicant and the respondent States”… or “that the applicant was capable of falling within the jurisdiction of those States, within the meaning of Article 1 of the Convention.” The Court therefore declared the application inadmissible.
Saddam Hussein (“the applicant”), former President of Iraq, was captured by US soldiers on 13 December 2003 near Tikrit during an operation called “Operation Red Dawn.” On June 29, 2004, he filed a complaint against 21 countries, namely Albania, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Turkey, Ukraine and the United Kingdom (the “respondent States”).
The applicant complained about his arrest, detention, handover and ongoing trial under Articles 2 (right to life), 3 (prohibition of torture and inhuman and degrading treatment), 5 (right to liberty and security), and 6 (right to a fair trial) of the European Convention on Human Rights together with Article 1 of the 6th (abolition of the death penalty in time of peace) and 13th (abolition of the death penalty in all circumstances) Protocols. He maintained that he would be executed following a finding of guilt after a “show trial” for which he lacked even the basic tools of defence. The applicant asserted that the Court had jurisdiction because the respondent States were occupying powers in Iraq, because he was under their direct authority and control or because they were responsible for the acts of their agents abroad. He further maintained that the respondent States were de facto occupying powers even after the transfer of sovereignty in June 2004.
The Court found that the applicant had not demonstrated that he fell within the jurisdiction of the respondent States. Moreover, the applicant did not submit arguments as to why the coalition forces of the US Army in Iraq were responsible for his capture and detention. Finally, the Court noted that there was no “basis in the Convention’s jurisprudence” and that the applicant did also not submit any established principle of international law, “which would mean that he fell within the respondent States’ jurisdiction on the sole basis that those states allegedly formed part…of a coalition with the US, when the impugned actions were carried out by the US.”
The report on the situation of the detainees held at the US Naval Base at Guantanamo Bay, Cuba, was issued by four Special Rapporteurs (the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur freedom of religion or belief, and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health) and the Chairperson of the Working Group on Arbitrary Detention. In this joint report, each Rapporteur examines the situation of the detainees as it relates to the Rapporteur’s mandate.
Three mandate holders were granted a request to visit the facilities of the Naval Base at Guantánamo Bay. However, as their request to privately interview detainees was not granted, they subsequently cancelled the visit. The report is therefore based on the replies of the US government, interviews with former detainees, and responses from lawyers representing individuals currently detained at Guantánamo Bay. Furthermore, the report is based on information publicly available, such as reports from non-governmental organizations and declassified official United States documents.
According to the US government, approximately 520 detainees were held in Guantánamo Bay as of October 2005. As of December 2005, nine detainees have been referred to a military commission.
The report lays out the obligations of the United States under international law. Citing the case of the International Court of Justice in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, the report finds that the International Covenant on Civil and Political Rights extends to Guantánamo Bay. The report moreover reiterates the complementary application of International Human Rights Law to International Humanitarian Law.
The Chairman of the Working Group on Arbitrary Detention and the Special Rapporteur on the independence of judges and lawyers expressed their concerns regarding the situation of the detainees. In their view, the “legal regime applied to these detainees seriously undermines the rule of law and a number of fundamental universally recognized human rights, which are the essence of democratic societies.”
The report also criticizes that investigations into the allegations of torture have not been conducted through an impartial process. This, according to the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, constitutes a violation of Articles 12 and 13 of the Convention against Torture.
In its conclusions, the reports finds that the individuals detained at Guantánamo Bay “are entitled to challenge the legality of their detention before a judicial body in accordance with Article 9 of the ICCPR” and that “[t]his right is currently being violated.” The conclusions specify that the interrogation techniques authorized by the Department of Defense amount to “degrading treatment in violation of Article 7 of ICCPR and Article 16 of the Convention against Torture.”
The recommendations of the report state that “the United States Government should either expeditiously bring all Guantánamo Bay detainees to trial…or release them without further delay.” Moreover, the recommendations provide that the “United States Government should close the Guantánamo Bay detention facilities without further delay.”
Reply of the Government of the United States of America to the Report of the Five UNCHR Special Rapporteurs on Detainees in Guantánamo Bay, Cuba (March 10, 2006)
The United States issued a reply to the Report of five Special Rapporteurs on the situation of the detainees in Guantanamo Bay. In that reply, the United States declares that it “profoundly objects to the Report both in terms of process and of substance and underscores that the Report’s factual and legal assertions are inaccurate and flawed.”
The United States asserts that it “offered the Special Rapporteurs unprecedented access to Guantanamo.” The United States also criticizes that the report asserted “the existence of jus cogens or non-derogable norms without citation of binding authority in support”, and that it “relied on international human rights instruments, declarations, standards, and general comments of treaty bodies without serious analysis of whether the instruments by the terms apply extraterritorially; whether the United States is a State Party- or has filed reservations or understandings – to the instrument.” The Special Rapporteurs’ view that the International Covenant on Civil and Political Rights (the “ICCPR”) is applicable to the detainees in Guantanamo Bay is also contested. According to the United States, the ICCPR is “by its express terms and clear negotiating record” only applicable within the signatories’ territory. The United States further declares that it is “engaged in a continuing armed conflict against Al Qaida, the Taliban and other terrorist organizations supporting them.” Therefore, the United States finds the law of armed conflict to govern “the conduct of armed conflict and related detention operations,” and also states that these rules permit lawful and unlawful combatants to be detained until the end of active hostilities without charges, trial, or access to counsel.”
Annexed to this document is the reply of the United States to the 45 questions posed by the Special Rapporteurs on the operations in Guantanamo (available here).
ILIB is a free-of-charge electronic resource. To sign up for ILIB or ASIL Insights, click here.
To comment on this publication, send an e-mail message to Elena Papangelopoulou, ILM Managing Editor at epapangelopoulou@asil.org
