Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law August 17, 2006
Joseph Serugendo was indicted by the ICTR prosecutor with conspiracy to commit genocide, genocide, complicity to commit genocide, direct and public incitement to commit genocide and persecution as a crime against humanity. Serugendo was a member of the Comité d’Initiative, the governing board of Radio Television Libre des Mille Collines; the advisor on technical matters to the RTLM radio station; Chief of the Maintenance Section of Radio Rwanda in the Office Rwandais d’Information {“ORINFOR”] and a member of the enlarged National Committee of the Interahamwe za MRND. He accepted that between 1992-1994 he planned with other leaders of the MRND political meetings and rallies aimed at inciting members of the Interahamwe to kill or cause serious harm to members of the Tutsi population, and that during 1993-94 he planned to establish, use and fund the RTLM as a radio station which disseminated an anti-Tutsi message intended to foment racial hatred and in fact that such broadcasts were made and resulted in the incitement of others to kill hundreds of thousands of Tutsis throughout Rwanda. Based on the facts the Chamber found that Serugendo possessed the actus reus and mens rea of the crimes he faced. On 12 January 2006 a joint motion for consideration of a plea agreement was filed and on 16 January a plea agreement was filed. The Chamber concurred with the Trial Chamber decision that some form of consideration should be given to one who confesses their crime and other mitigating circumstances should be considered in sentencing. The Chamber held that Serugendo’s change of plea to guilty was a mitigating circumstance. In addition, the Chamber held that Serugendo’s cooperation with the Prosecution and other factors were mitigating circumstances. For example, Serugendo’s public expression of remorse and regret for his crimes, his good character prior to 1994, the fact that he is married and 53 years old, assistance given to certain victims by Serugendo, and Serugendo’s ill health since he has been diagnosed with a terminal illness. The Chamber took into account the sentencing practices in the courts of Rwanda and the sentencing recommendations of the parties, although stating that the Chamber was not automatically bound by these. Therefore, despite the severity of Serugendo’s crimes the Chamber accepted the mitigating circumstances, especially his medical condition, and sentenced Serugendo to a single term of six years imprisonment with an order that he receive adequate medical treatment including hospitalization if needed.
This litigation arose out of events that occurred in Papua New Guinea (PNG) in connection with the operations of the international mining group Rio Tinto, which is headquartered in London. The plaintiffs, current and former residents of PNG, brought this action under the Alien Tort Claims Act (the “ATCA”) against Rio Tinto alleging that they or their family members were victims of international law violations in connection with Rio Tinto’s operation of a copper mine in PNG. The plaintiffs alleged that the mining operations polluted the “waterways and atmosphere and undermined the physical and mental health of the island’s residents. In addition, the islanders who worked for Rio Tinto, all of whom were black, were paid lower wages than the white workers recruited off island and lived in “slave-like’ conditions.” In 1988, the island’s residents’ actions of sabotage forced the mines to close. The plaintiffs maintain further that owing to Rio Tinto’s seeking assistance from the PNG government, the PNG army committed “atrocious human rights abuses and war crimes… including a blockade, aerial bombardment of civilian targets, burning villages, rape and pillage.” The State Department filed a statement of interest (the “SOI”), in which it expressed the view that a “continued adjudication of the claims… would risk a potentially serious adverse impact on the peace process, and hence on the conduct of our foreign relations.”
The district court dismissed all of the plaintiffs’ claims under the political question doctrine. The Court of Appeals for the Ninth Circuit (the “Court”) held that, even “post-Sosa,” Rio Tinto could, in principle, be held “liable under theories of vicarious liability for alleged war crimes and crimes against humanity committed at its behest by the PBG army.”
In terms of the political question doctrine, the Court stated that it gave the SOI “serious weight.” However, concluded that it was its “responsibility to determine whether a political question is present, rather than to dismiss on that ground simply because the Executive Branch expresses some hesitancy about a case proceeding.” The case was not found to fall under the political question doctrine. Court reversed the decision, insofar as the district court dismissed on grounds of the political question doctrine. As to the district court’s dismissal of the racial discrimination claims and the United Nations Convention on the Law of the Sea (“UNLOS”) violations under the act of state doctrine, the Court held that the allegations of racial discrimination constituted jus cogens violations, and that they could therefore not be characterized as an act of state that would insulate from scrutiny. The alleged violations under UNCLOS were upheld as acts of state, because the Court could not conclude that the UNCLOS codified jus cogens norms.
Finally, the Court held that owing to “lack of clear direction from Congress,” no exhaustion of remedies is required under the ATCA. In that regard, the Court noted the Supreme Court’s decision in Sosa offered little guidance, and that that question was “far from settled.”
In his dissent, Judge Bybee expressed the view that the ATCA should be read as to require an exhaustion of remedies.
Supreme Court of the United States: Fernandez-Vargas v. Gonzales, Attorney General Certiorari to the United States Court of Appeals for the Tenth Circuit (June 22, 2006)
This case involves immigration law and application of the Illegal Immigration Reform and Responsibility Act of 1996 (IIRIRA), which amended the Immigration and Nationality Act (INA) by enlarging the class of illegal reentrants whose deportation orders may be reinstated and limits the relief available in certain cases, §241(a)(5), 8 U.S.C. §1235(a)(5). The petitioner, Fernandez-Vargas, a Mexican citizen, illegally reentered the United States in 1982 after being deported. For twenty years he remained in the U.S. fathering a son in 1989 and marrying the mother, a U.S. citizen in 2001. After petitioning to be a permanent legal resident the Government started proceedings to reinstate the 1981 deportation order against him. Petitioner requested review by the tenth Circuit of the reinstatement order because he had illegally reentered the country before IIRIRA’s effective date The Tenth Circuit held that §241(a)(5) barred his application and followed Landgraf v. USI Film Products, 511 U.S. 244 in determining that the new law had no impermissible retroactive effect in his case. The Supreme Court of the United States [hereinafter “the Court”] addressed the question raised as to whether the new version of the reinstatement provision is correctly read to apply to individuals, such as the Petitioner, who reentered the United States before IIRIRA’s effective date of 1 April 1997, and whether such a reading may be rejected as impermissibly retroactive. The Court held that the statute applies to those who entered before IIRIRA and does not retroactively affect any right of, or impose any burden on, the continuing violator of the INA before the Court. Therefore the judgment of the Court of Appeals was affirmed. The Dissenting opinion was written by Justice Stevens who argued that the 1996 law was silent as to whether it was intended to apply retroactively to conduct that predated its enactment and that historical practice supporting Petitioner’s reading was not taken into account by the Court.
United Nations Security Council: Resolution 1701 (The Situation in the Middle East) (August 11, 2006)
The document is available on the United Nations website.
In resolution 1701 the United Nations Security Council (the “Security Council”) expressed its “utmost concern at the continuing escalation of hostilities in Lebanon and in Israel since Hizbollah’s attack on Israel on 12 July 2006.” Determining that the situation in Lebanon constitutes a threat to international peace and security, the Security Council
called for “a full cessation of hostilities based upon, in particular, the immediate cessation by Hizbollah of all attacks and the immediate cessation by Israel of all offensive military operations.”
The Security Council further demanded that upon full cessation of hostilities, “the Government of Lebanon and UNIFIL… deploy their forces together throughout the South” and also called upon the Government of Israel to withdraw all of its forces from southern Lebanon as that deployment begins.
The Security Council further decided that all States shall “take the necessary measures to
prevent… [t]he sale or supply to any entity or individual in Lebanon of arms and
related materiel of all types.”
(This document was adopted by the Committee of Ministers on June 14, 2006 at the 967th meeting of the Minister’s Deputies).
Working to strengthen Recommendation No. R (87) 21 on the assistance to victims and the prevention of victimization, intended to complement the European Convention on the Compensation of Victims of Violent Crime (ETS No. 116, 1983) and Recommendation No. R (85) 11 on the position of the victim in the framework of criminal law and procedure, this Recommendation is designed to replace Recommendation No R (87) 21 on the assistance to victims and the prevention of victimization. Specifically, this recommendation calls on the member states to provide increased assistance to victims by identifying and supporting measures to alleviate the negative effects of crime and to undertake that victims are assisted in all aspects of their rehabilitation, in the community, at home, and in the workplace. This should include medical care, material support, and psychological health services as well as social care and counseling. These services should be free of charge at least in the immediate period after victimization. Victim support services should be easily accessible, provide victims with free emotional, social and material support during and after legal proceedings, be fully competent to handle the problems faced by victims, provide information to victims on their rights and available services, refer victims where necessary, and respect confidentiality. The Recommendation also calls for the establishment of specialized centers, national help lines, coordination of services for victims, provision of information to victims, and information on legal proceedings. In terms of state compensation to victims, the Recommendation states that compensation should be provided by the state for victims of serious, intentional, violent crimes, including sexual violence. States should adopt a compensation scheme, evaluate the extent of insurance coverage available under public or private insurance schemes for the various categories of criminal victimization, and ensure the protection of the victim’s physical and psychological integrity at all stages of the procedure. Finally, states should assist and support victim support services to develop appropriate standards for the selection of all paid and voluntary staff providing direct assistance and organize training and support for all paid and voluntary staff to ensure that services are professionally delivered. The Deputies adopted Recommendation Rec(2006)8 on 16 June 2006.
OECD, Investment Committee, Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones (8 June 2006)
The OECD Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones [hereinafter “Risk Awareness Tool”] is designed to assist multinational enterprises investing in countries characterized by weak or non-existent government to handle an array of risks and ethical dilemmas not usually encountered in countries with stronger governance arrangements. The Risk Awareness Tool was developed as part of the ongoing work of the OECD Investment Committee and supplements the OECD Guidelines for Multinational Enterprises, a government backed code of conduct for international business widely used as a means of measuring responsible business conduct and OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. The framework for the Risk Awareness Tool was developed through an inter-governmental and multi-stakeholder partnership process involving representatives from 60 OECD and non-OECD countries. The Risk Awareness Tool sets out a range of questions for multinational enterprises to consider in such areas as obeying the laws and adhering to various international instruments and the legal obligations these impose, strengthening diligence in managing investments, assessing business partners, dealing with public sector officials, and reporting wrongdoing that may occur in their dealings. However, consistent with the objectives of the Guidelines for Multinational Enterprises, the Risk Awareness Tool is non-prescriptive. The Risk Awareness Tool was adopted by the OECD Council on 8 June 2006.
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