Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law June 16, 2006
The Organisation for Economic Co-operation and Development’s [the “OECD”] Working Party on Export Credits and Credit Guarantees [the “ECG”] 2006 Action Statement on Bribery and Officially Supported Export Credits [hereinafter “Agreement”] is the latest effort on the part of the OECD ECG to combat bribery in export credits. The Agreement builds upon the OECD’s experiences since the 2000 Action Statement on anti-bribery measures was issued. Under Paragraph 2, of the Agreement, the members of the OECD’s Working Party on ECG agree to “take appropriate measures to deter bribery (as defined in the Anti-Bribery Convention and 1997 Recommendation) in international business transactions benefiting from official export credit support, in accordance with the legal system of each member country and the character of the export credit and not prejudicial to the rights of any parties not responsible for the illegal payments…” The Agreement calls for increased due diligence when an exporter is on the debarment list of the World Bank or other major multi-lateral financial institutions. In addition, Paragraph 2(d) requires exporters and where appropriate, applicants, to “disclose whether they or anyone acting on their behalf in connection with the transaction are currently under charge in a national court or, within a five-year period preceding the application, have been convicted in a national court or been subject to equivalent national administrative measures for violation of laws against bribery of foreign public officials of any country”. Under the Agreement, applications may be suspended or support/loss of cover may be denied. Paragraph 2(i) of the Agreement also requires notification of law enforcement authorities if “there is credible evidence at any timethat bribery was involved in the award or execution of the export contract”. Finally, under Paragraph 2(k), “if, after credit, cover or other support has been approved bribery has been proven, taking appropriate action, such as denial of payment, indemnification, or refund of sums provided”.
Naletilic and Martinovic lodged individual Notices of Appeal on 29 April 2003 and the Prosecution on 2 May 2003 based on Case No. IT-98-34-T (31 March 2003) [hereinafter “Trial Judgment”], where Naletilic was convicted of 8 of 17 counts and sentenced to 20 years and Martinovic was convicted of 9 of 17 counts and sentenced to 18 years. They appealed their convictions and sentences on the basis that the Trial Chamber committed errors of both law and fact. The Appeals Chamber identified common issues of the appeals and addressed these under: “Errors Alleged by Naletilic and Martinovic Concerning Denial of Due Process of Law”, “Error Alleged by Naletilic and Martinovic Concerning the International Character of the Armed Conflict”, and “Appeals from Sentence”.
The first ground of appeal is that the Indictments were too vague. According to the Appeals Chamber “Whether an indictment is pleaded with sufficient particularity depends on whether it sets out the material facts of the case with enough detail to inform an accused clearly of the charges against them so that they may prepare a defence”. The Appeals Chamber found that although the Indictment failed to plead “material facts” in relation to the charges for most of the incidents, the Prosecution cured these defects by providing timely, clear and consistent information, except in three incidents. Therefore, the Trial Chamber erred in finding Martinovic responsible for three incidents. The Appeals Chamber dismissed Naletilic’s appeal.
The second ground of appeal is that the Trial Chamber erred by holding that an international armed conflict existed during the period in the area relevant to the Indictment, and therefore, erred in finding them guilty of violating the Geneva Conventions. Specifically, they argued that the evidence presented was unreliable and that they could not be held responsible for the character of the armed conflict. The Appeals Chamber found that the claims concerning the unreliability of the evidence were limited to a mere assertion and insufficiently precise. The Appeals Chamber also address whether the Trial Chamber erred in failing to require the Prosecution to prove, as an element of the crimes under Article 2, that they were aware of the international character of the conflict. The Appeals Chamber found that the existence and international character of an armed conflict are jurisdictional pre-requisites, as established in Tadic, and substantive elements of crimes under Article 2. The Appeals Chamber held that their argument mischaracterized the Trial Chamber’s findings in that they were not found responsible for the fact that the conflict was international, but rather for the crimes committed in the context of the international armed conflict. The Appeals Chamber also held that “the principle of individual guilt requires that the accused’s awareness of factual circumstances establishing the armed conflict’s international character must be proven by the Prosecution”. The Trial Chamber erred in law in failing to so find explicitly. However, a reasonable trier of fact could only have found that they were aware of the factual circumstances on which the Trial Chamber relied.
The third ground of appeal related to alleged errors in the Trial Judgment. Naletilic challenged the finding that during the period of the Indictment he was the overall commander of the KB and attached ATG units, thus making him responsible under the superior-subordinate relationship provision of Article 7(3). The Appeals Chamber found that with the exception of two instances the Trial Chamber’s reliance on exhibits to show that Naletilic was the overall commander was not an error. Martinovic submitted that the Trial Chamber erred in finding him responsible for unlawful labor under Article 7(3) for using detainees to assist in looting of property. The Appeals Chamber found that although testimony by one witness was insufficient to hold Martinovic responsible, reliance on other witnesses negated any miscarriage of justice. Martinovic also challenged the cumulative convictions imposed for the same acts, because they caused him prejudice. The Appeals Chamber upheld the jurisprudence of the ICTY that “multiple convictions serve to describe the full culpability of a particular accused or provide a complete picture of his criminal conduct”.
Martinovic and Naletilic also appealed the sentencing determination. The Appeals Chamber found that the Trial Chamber erred in failing to consider, as a mitigating factor, that Martinovic facilitated his transfer to the Hague and waived his right to an appeal to speed extradition, and in not considering Martinovic’s treatment and help of BH Muslims as a mitigating circumstance. The Appeals Chamber found that under Article 7(1) the Trial Chamber has the discretion to find that a position of authority can be an aggravating circumstance. However, based on the facts, the Appeals Chamber set aside a few of the convictions, but found the sentences for the other convictions were “within the range that a reasonable Trial Chamber could have ordered”.
The Grand Chamber of the European Court of Human Rights (the “Court”) held that the French law on recidivism does not violate Article 7 (no punishment without law) of the European Convention on Human Rights (the “Convention”).
In 1984 Couider Achour (the “Applicant”) was convicted of a drug offence and was imprisoned until 1986. In 1994, the provisions of the Criminal Code regarding recidivism were amended. The new provisions provided that where a person had already been convicted of a serious crime or offence publishable by ten years’ imprisonment, within ten years of the expiry of the previous sentence, a further offence carrying a similar sentence, the maximum sentence should be doubled. In 1997 the Lyon Criminal Court convicted the Applicant of a drug offence and sentenced him to eight years’ imprisonment. The Court of Appeal, in application of that new law, increased his sentence to 12 years’ imprisonment.
In November 1994, the Chamber handed down its judgment in the case, holding that the application of the recidivism rules constituted a violation of Article 7 of the Convention. After a request from France, the matter was referred to the Grand Chamber, which reversed the findings of the Chamber. As an initial matter, the Grand Chamber stated that the States signatories to the Convention were free to enact their own laws in criminal law matters, as long as the principles of the Convention were not violated. The Court then examined whether the law had been accessible and foreseeable at the material time. As the French courts had taken a clear and consistent position since the late nineteenth century regarding the rules on recidivism, demanding only for the second offence to be committed after the law was enacted, it was foreseeable to the Applicant that this new law would be applicable to his case, should he be convicted of a new offense prior to the expiration of the statutory ten year term.
The issue before the House of Lords was whether the Courts of the United Kingdom had jurisdiction to entertain claims of alleged torture against the Kingdom of Saudi Arabia (the “Kingdom”) and its officials. The claimants allege to have suffered systematic torture in Saudi Arabia and brought suit in the courts of the United Kingdom against the Ministry of Interior of Saudi Arabia and various state officials.
Lord Bingham of Cornhill noted that on a plain reading of the United Kingdom State Immunity Act 1978 (the “Act”), the Kingdom would be able to plead immunity and the plaintiffs’ claims would therefore have to be dismissed, as no exception of the Act applied. The plaintiffs argued that this “plain reading” would contravene their well-established right under Article 6 I of the European Convention on Human Rights (right to a fair trial). Also, they submitted that granting the Kingdom immunity would violate a jus cogens norm, according to which “the practice of torture should be suppressed and the victims of torture compensated.” Lord Bingham of Cornhill discussed the decision of the Grand Chamber of the European Court of Human Rights in Al-Adsani, in which the Grand Chamber ruled by a slim majority that it was not contrary to the Convention to grant sovereign immunity to a state and its officials where damages are sought in civil proceedings for torture. Granting sovereign immunity was justified by the legitimate aim of pursuing “comity and good relations between states.” Lord Bingham of Cornhill then reiterated the four main arguments advanced by the Kingdom, with which he agreed. The Kingdom claimed that the appeals had to be dismissed because:
a serving foreign minister is immune from suit rationae personae,
The plaintiffs allege to have been the victims of human rights violations perpetrated by the Chilean military junta which came to power through a coup d’etat in September of 1973. They claim that the Chilean Directorate of National Intelligence, which was responsible for the violations, was “funded, assisted…aided and abetted” by the United States and/ or Henry A. Kissinger. For this reason they brought suit in the US courts against Henry A. Kissinger, former National Security Advisor and Secretary of State. Suing under the Alien Tort Claims Act and the Torture Victim Protection Act, the appellants sought relief for, inter alia, torture, false imprisonment, wrongful death, and intentional infliction of emotional distress.
The Court of Appeals affirmed the decision of the District Court, albeit for different reasons. The District Court held that the claims did not fall under the political question doctrine, but dismissed the suit because of, inter alia, sovereign immunity. The Court of Appeals dismissed the claim on grounds of the political question doctrine. Rejecting the plaintiffs’ claim that Kissinger acted ultra vires, the Court of Appeals held that the plaintiffs called “into question foreign policy decisions textually committed to the political branches.”
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