Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law October 13, 2006
On October 6, 2006 the European Union and the United States entered into a temporary agreement regarding the sharing of passenger name record (PNR) data that will expire in July 2007. The purpose of the agreement is to prevent and combat terrorism and transnational crime. After the terrorist attacks of September 11, 2001, the United States Congress passed legislation requiring airlines flying in or over U.S. territory to provide U.S. customs officials with PNR data. In June 2002 the European Commission took cognizance of the increased security concerns but highlighted that the U.S. legislation might be in variance from European Community and European member legislation on data protection and with council Regulation (EEC) No. 2299/89 (July 24, 1989) as amended by EEC regulation No. 323/1999 (February 8, 1999). While the U.S. did delay implementation of the new regulations, it refused to relinquish its ability to levy penalties on airlines failing to offer the U.S. customs authorities PNR data after March 5, 2003. In response, some airlines began cooperating with U.S. customs authorities by providing them the data. The European Union subsequently developed a Working Party on the Protection of Individuals with regard to the Processing of Personal Data, and reported in June 2003, that it was not convinced that the data protection provided would meet the requirements of European Commission Directive 95/46/EC regarding the safeguarding of personal data. The Working Group reiterated this determination in an opinion in January 2004.
The agreement provides that the European Union (EU) will ensure that airlines operating passenger flights to or from the United States shall process such data in their reservation systems as the Department of Homeland Security (DHS) requires. Pursuant to the terms of the Agreement, DHS will be permitted to access the PNR data from air carriers’ reservation systems located within the territory of the member states of the European Union until such time as there is a satisfactory infrastructure in place permitting the airlines to transmit the data. In turn, the accord requires DHS to process the data according to U.S. laws and constitutional requirements, and without unlawful discrimination. The agreement replaces one annulled by the European Court of Justice in May 2006 in joined cases C-317/04 and C-318/04 as being beyond the competencies of the European Union.
The previous Extradition Treaty between the United States and United Kingdom was signed in 1972, entered into force in 1977. This Treaty was amended by a Supplemental Treaty that entered into force in 1986. The purpose of this Treaty is to codify extradition practices and previous United States extradition treaties approved by the Senate over the last two decades to strengthen law enforcement cooperation between the two countries in light of developments since September 11, 2001. The key articles of the new Treaty are Article 2, which contains a modern “dual criminality” provision providing for extraditable offenses as those punishable under the laws of both states by deprivation of liberty for at least 1 year as opposed to the 1972 provision that allows extradition only in cases where the offenses is considered extraditable under United Kingdom law and is a felony in the United States, while protecting against extradition if the conduct would not constitute an offense in the United States, such as conduct protected under the First Amendment. Article 4 addresses political and military offenses and bars extradition for political offenses, which is consistent with U.S. policy. The list of crimes excluded from the political offense exception is generally the same as those in the 1986 Supplementary Treaty. In particular, terrorism and other crimes of violence are unacceptable as a political tactic and thus excluded. In addition, Article 4 (3) prohibits extradition where the competent authority of the requesting state determines that the request is politically motivated. Article 6 provides that the decision whether to grant extradition shall be made without regard to any statute of limitations in either state. Article 8 addresses the documentation required in support of an extradition request. Unlike the 1972 Treaty, this Treaty does not set forth a specific burden of proof for requests to the United Kingdom. Article 12 addresses provisional arrests in urgent circumstances and streamlines the process by permitting requests to be transmitted directly to the U.S. Department of Justice and the competent U.K. authority. The 60 day duration of provisional arrest is the same, but the information required is now reflective of recent treaties. Finally, Article 14 permits the requesting state to temporarily surrender for proceedings in the requesting state a person who is being proceeded against or is serving a sentence in the requested state. This was not provided for in the previous Treaty.
Lieutenant-Colonel Tharcisse Muvunyi (“Defendant”) served in the Rwandan Army and was stationed at the Non-Commissioned Officers School, known as the Ecole des sous-officiers (ESO) in Butare. The Prosecution charged Muvunyi with five counts including Genocide, or in the alternative, Complicity in Genocide, Direct and Public Incitement to Commit Genocide, and Rape and Other Inhumane Acts as Crimes Against Humanity. According to the Prosecution, after the death of Rwanda’s President on April 6, 1994, the Defendant, as the most senior military officer in Butare Prefecture, had authority over the military personnel in the area. Under his command, soldiers committed various serious violations of international humanitarian law and Muvunyi directly and publicly incited Hutus to eliminate their Tutsi neighbors. Muvunyi contended that he was never formally appointed to any position of authority over the military personnel at ESO or in Butare, therefore, he did not bear responsibility as superior for the actions of some soldiers. Muvunyi also argued that there was no evidence he ordered or directly participated in the commission of any of the charges in the Indictment. The Trial Chamber found that Muvunyi was ESO Commander and that he had authority for security in Butare Prefecture and Gikongoro Prefecture as Commandant de place. The Trial Chamber also found that Muvunyi was second in command at ESO until his superior officer was appointed Interim Chief of Staff of the Rwandan Army on April 7, 1994. From that point on he was, therefore, in charge with the power and authority to make day-to-day operational decisions at ESO. Thus he had responsibility for the actions of the ESO soldiers within the central sector of Butare Prefecture. However, the Trial Chamber held that the Prosecution had failed to prove beyond a reasonable doubt that Muvunyi exercised the functions of Commandant de place with responsibility for security in all of Butare and Gikongoro Prefectures. Nonetheless, the Trial Chamber held that Muvunyi’s responsibility stemmed from the fact that the ESO was entrusted with security in the central sector of Butare Prefecture. Based on the evidence presented, the Trial Chamber found Muvunyi guilty of Genocide (Count One). Because the Trial Chamber found him guilty of Count One, Count Two was dismissed. In terms of Count Three, and Direct and Public Incitement to Commit Genocide, the Trial Chamber found that the Prosecution had not shown beyond a reasonable doubt the allegations relating to Muvunyi’s actions in Nyantanga Trade Center, but was satisfied that he had addressed Hutus in other areas and directly incited others to commit genocide. Therefore, he was guilty of Direct and Public Incitement to Commit Genocide. In terms of Count Four and the charges of rape, the Trial Chamber held that Muvunyi was not guilty based on a faulty indictment, which denied him the right to be informed of the nature and cause of the charges against him pursuant to Rule 47(C) of the Rules of Procedure and Evidence. The Trial Chamber also found Muvunyi guilty of Count Five and commission of Other Inhumane Acts as a Crime Against Humanity for the actions of soldiers from the ESO beating Tutsi’s with rifle butts and sticks, as well as attacks on orphans and other civilians. The Trial Chamber held that Defendant had reason to know of these acts by his subordinates and failed to take necessary and reasonable measures to prevent it. Muvunyi was sentenced to a term of 25 years, based on the sentencing practice of the Tribunal and of Rwanda, as well as mitigating circumstances.
International Criminal Tribunal for the Former Yugoslavia (ICTY) (Appeals Chamber): Prosecutor v. Paško Ljubicic (Decision on Appeal against Decision on Referral under Rule 11 bis) (July 4, 2006)
Ljubicic was indicted for crimes against Bosnian Muslim civilians in the Lašva Valley in central Bosnia and Herzegovina between January and July 1993, as Commander of the Fourth Military Police Battalion of the Croatian Defence Council. The Indictment charged him with six counts of Crimes Against Humanity pursuant to Article 5 of the Statute, two counts of murder and three counts of inhumane acts, and nine counts of Violations of the Laws or Customs of War pursuant to Article 3 of the Statute. On July 19 2005, the Prosecution moved to have the case referred to the authorities of Bosnia and Herzegovina. After a hearing, the Referral Bench issued the Impugned Decision of April 12, 2006.
Appellant’s first ground of appeal was that the Referral Bench erred by disregarding the provisions of the Constitution of the Republic of Croatia on the extradition of Croatian nationals. The Appeals Chamber held that a referral pursuant to Rule 11 bis does not amount to an extradition stricto sensu, but rather constitutes a procedure under a Security Council resolution. Therefore, the Referral Bench decision was affirmed. The second ground of appeal was that the Referral Bench erred in law and fact by finding that the only nexus between Appellant and Croatia was his citizenship and that criminal proceedings were already initiated against him in Croatia. The Appeals Chamber recalled that while Appellant has no locus standi to file a formal request for referral to a particular State, the Referral Bench is not limited to the Prosecutions suggestion. Nonetheless, the Referral Bench relied on the facts to hold that he had a stronger nexus with Bosnia and Herzegovina and did not only rely on his citizenship. Therefore, the Referral Bench did not err. Under his third and fourth grounds of appeal Appellant submitted that the Referral Bench erred in law and fact by not considering whether his representation by the same counsel in Bosnia would actually be ensured and he submitted that he would be forced to appoint new counsel, which could unduly delay his trial. The Referral Bench correctly relied on the Stankovic case to show that the State Court of Bosnia and Herzegovina was the only forum, which could try cases referred by the Tribunal. Thus, Appellant’s concerns were unfounded. The fifth ground of appeal was that the Referral Bench erred in law and fact by failing to examine whether the courts of Bosnia and Herzegovina are adequately prepared to accept the case. The Appeals Chamber held that the Referral Bench acted within its discretion. The sixth ground of appeal was that he might not receive a fair trial, due to problems with access to material, applicable sentencing law, and detention concerns. As the Referral Bench took note of these issues and heard arguments, the Appeals Chamber held that Appellant had not shown that the Referral Bench made a discernible error in terms of post-trial issues. However, in terms of pre-trial detention issues the Appeals Chamber agreed that this is an issue that touches on potential fairness. Nonetheless, the Appeals Chamber was satisfied that the pre-trial detention conditions in the unit attached to the State Court met internationally recognized standards.
Therefore, the Appeals Chamber dismissed Appellants appeal in its entirety and affirmed the referral to the State Court of Bosnia and Herzegovina.
LEGISLATION
United States: Military Commissions Act of 2006 (September 29, 2006)
On September 29, 2006, the United States Congress enacted the Military Commissions Act (“the Act”) to respond to the United States Supreme Court’s decision in Hamdan v. Rumseld. In Hamdan¸ the Court held that the Military Commissions as they were then constituted violated Common Article III of the Geneva Conventions and the Uniform Code of Military Justice.
The Act gives the President the authority to establish military commissions, and it provides him with the authority to determine what constitutes breaches of the Geneva Conventions other than those which constitute “grave breaches.” It specifically defines “unlawful enemy combatant” as a person who engaged in hostilities or purposefully and materially supported such acts against the United States or our allies who is not an enemy combatant (including a member of the Taliban, al Qaeda, or associated groups); or someone who, after the date of enactment of the Act, was determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established pursuant to the authority of the President or of the Secretary of Defense. By contrast, “lawful enemy combatant” is defined as a member of regular forces of a state party engaged in hostilities against the U.S.; or a member of a militia, volunteer corps, or organized resistance movement belonging to a state party participating in hostilities under a responsible command, wearing a distinctive sign recognizable at a distance, carrying arms openly, and following “the law of war,” or a member of a regular armed force professing allegiance to a government engaged in such hostilities, but not recognized by the U.S.
The Act specifically exempts military commissions from having to follow a number of requirements contained in the Uniform Code of Military Justice. Unlawful enemy combatants are not permitted to avail themselves of speedy trials. No precedental weight is to be accorded findings, holdings, interpretations, or other determinations in military commissions. Unlawful enemy combatants subject to trial by military commission are prohibited from invoking the Geneva Convention as a source of rights.
There is “double jeopardy” for military commission proceedings, and no one may be tried by a military commission for the same offense without his consent. The Act prohibits “cruel and unusual” punishment including flogging, branding, marking, or tattooing, as well as the use of either single or double restraining irons, except for safe custody.
The law amends the federal habeas corpus statute, 28 U.S.C. § 2241, to add a new subsection (e), preventing courts from exercising jurisdiction to consider applications for writs of habeas corpus filed by or on behalf of aliens detained by the United States who have been determined to be detained as enemy combatants or those who are awaiting such determination.
The Act specifically prohibits United States courts from using foreign or international sources of law to interpret provisions of 18 U.S.C. § 2441 on war crimes, grave breaches of the Geneva Convention.
This bill was presented to the President for signature on October 10, 2006.
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
