Developments in international law, prepared by the Attorney Editor of International Legal Materials
The American Society of International Law August 9, 2007.
International Tribunal for the Law of the Sea: The “Hoshinmaru” Case (Japan v. Russian Federation) (6 August 2007)
Click here for document. (Approximately 46 pages including separate declarations).
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The International Tribunal for the Law of the Sea (ITLOS) ordered Russia to release the Japanese-owned vessel the Hoshinmaru, in exchange for a bond of ten million Russian rubles (US $393,000).
Russia granted the Hoshinmaru a license for salmon and trout fishing from May 15 to July 31, 2007, in three areas of the Russian Federation’s exclusive economic zone. The Hoshinmaru was fishing in one of those areas June 1, 2007, when a Russian patrol boat ordered it to stop. A Russian inspection team boarded and inspected the Hoshinmaru, and alleged that it caught sockeye salmon instead of chum salmon, in violation of Russian law. The inspection team detained the Hoshinmaru and crew. The Japanese Embassy requested the Russian Ministry of Foreign Affairs July 11, 2007 to release the Hoshinmaru and its crew upon the posting of a reasonable bond pursuant to article 73 of UNCLOS. Russia’s Ministry of Foreign Affairs then notified the Embassy of Japan that the bond was set at 22,000,000 rubles, including damages.
Japan filed an application with ITLOS (tribunal) against the Russian Federation July 6, 2007 seeking the tribunal to order Russia to release the Hoshinmaru and its crew. Japan claimed that Russia failed to comply with Articles 73 and 292 of UNCLOS regarding the prompt release of a vessel or its crew upon the posting of a bond or other reasonable security. After Russia posted the bond, Japan did not consider the amount to be reasonable. Russia requested the tribunal to declare Japan’s application inadmissible, and find Russia to be in compliance with its UNCLOS obligations. Japan and Russia are both state parties to UNCLOS.
The tribunal found that it held jurisdiction pursuant to Article 292 (prompt release of vessels and crews) of UNCLOS. It opined that the dispute between the parties turns on the reasonableness of the bond. The tribunal may use a number of factors to determine whether a bond is reasonable including the gravity of the alleged offenses, the penalties available under the laws of the detaining state, the value of the detained vessel and cargo, and the amount of the bond that the detaining state has imposed. Russia calculated the amount of the bond based upon the possible penalty for the amount of sockeye salmon caught, the value of the vessel, and Russian administrative expenses. By contrast, Japan argued that the amount of the bond should be no more than 8,000,000 rubles, considering the possible Russian penalties. The tribunal found that bond that Russia sought to impose was unreasonable because it was based upon the maximum penalties that could be imposed as well as the confiscation of the Hoshinmaru, which the court found unwarranted given the circumstances of the case. The tribunal stated that this case was unique as it does not involve fishing without a license. The tribunal emphasized that Japan’s offense in catching sockeye salmon rather than chum was not a minor one, and it is Russia’s right to monitor catches. It therefore set the bond at 10,000,000 rubles.
European Court of Human Rights Grand Chamber: Asan and Others v. Turkey (31 July 2007)
The European court of Human Rights (ECHR) held July 31, 2007 that Turkey violated Article 3 (torture), Article 13 (effective remedy), and Article 5 (liberty and security) of the European Human Rights Convention (Convention) when Turkish police detained and tortured Turkish nationals suspected of aiding and abetting a terrorist organization. The court held that it lacked evidence to determine whether Turkey violated Article 14 (prohibition of discrimination). The court awarded each of the twelve applicants non-pecuniary damages ranging from 5,500 Euros to 12,700 Euros, with the higher sums awarded to the five men the court found that police had tortured.
Police arrested ten Turkish nationals September 13, 1999 on suspicion of aiding and abetting the Kurdistan Workers’ Party (the PKK), an illegal terrorist organization. On September 17, 1999 the Public Prosecutor requested the Magistrates’ Court to authorize the continued detention of the men for seven days. Police arrested two other Turkish men September 18, 1999 for aiding and abetting the PKK and drug possession. The Beytussebab Health Centre examined the men September 22, 1999 and reported that five, Zeki Aslan, Ubeyt Yaca, Sahbaz Aslan, Suleyman Aslan, and Zeki Asan, had sore arms, backs, and/or lesions on their arms. At a hearing before the public prosecutor September 22, 1999, the men alleged that police had tortured them. The men applied to the ECHR December 21, 1999 alleging that police tortured them in violation of their Convention rights pursuant to Articles 3, 5, 13, and 14. The Diyarbakir State Security Court heard their case December 22, 1999. They alleged that while they were in custody, police beat them, hung them by their arms, subjected them to electric shocks, hosed them with water, and inserted foreign objects into their anuses. The Diyarbakir Assize Court acquitted them of all charges April 10, 2007. Turkey requested the ECHR to dismiss the applications for failure to exhaust domestic remedies. The court dismissed Turkey’s argument, noting that it had already examined and disposed of Turkey’s argument in Karayigit v. Turkey (5 October 2004).
The ECHR noted that where representatives of a state detain an applicant in good health and release him injured, the state bears the burden of offering a reasonable explanation for the cause of the injuries. It found that the September 22, 1999 medical reports were consistent with the applicants’ contentions that police tortured them. Because Turkey did not offer an explanation for those injuries, the ECHR found a violation of Article 3 for five of the applicants. It did not find a violation of Article 3 for the others because the September 22, 1999 medical reports did not show signs of scars or bruises on their bodies. Because Turkey failed to investigate any of the applicants’ claims that they had been tortured, the ECHR found a violation of Article 13 for all of the applicants.
The applicants contended that Turkey violated Article 5 (liberty and security). The ECHR admitted the applicant’s claims pursuant to Article 5§§3, 4, 5. It found a violation of the length of applicants’ detention without prompt legal review pursuant to Article 5§3 because Turkish authorities violated the four day six hour limit that the ECHR set in Brogan and Others v. The United Kingdom, (29 November 1988). The court found a violation of Article 5§4 (lack of an effective domestic remedy) as it had in Ocalan v. Turkey, (2005). The court found that applicants were entitled to compensation pursuant to Article 5§5 for the other violations of the subsections of Article 5 because domestic law permitted the length of detention in custody without legal review.
The court held that it lacked sufficient evidence to find that Turkey discriminated against the applicants pursuant to Article 14 of the Convention because of their Turkish origin.
United States: In re: Sealed Case (Decided 29 June 2007, Unsealed July 20 2007 D.C. Cir.)
Click here for document. (Approximately 35 pages).
The U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court’s holding that the U.S. correctly invoked the state secrets privilege and dismissed the complaint against one of the defendants. It also held however, that the Mr. Horn may use non-privileged information to create a prima facie case. It therefore reversed the dismissal of the complaint against the remaining defendant and remanded to the district court to ascertain whether Horn’s case may proceed.
Richard Horn served as the country attaché for the U.S. Drug Enforcement Agency (DEA) in Rangoon, Burma (now known as Myanmar) in 1993. Horn and the State Department Chargé d’Affaires, Franklin Huddle, Jr. shared a difficult working relationship. Horn thought that Huddle was trying to obtain negative information about him to have him transferred to another station outside of Burma. When Horn learned that Huddle had transmitted a classified cable to the State Department in which Huddle purportedly included the contents of a telephone call that Horn made from his home to another DEA agent, Horn believed that Huddle was eavesdropping electronically in violation of his Fourth Amendment rights. Horn filed a Bivens action against Huddle and a Central Intelligence Agency (CIA) employee (second unnamed defendant) in 1994. (See Bivens v. Six Unknown Agents, 403 U.S. 388 (1971)). The U.S. intervened in the suit in 2000 asserting the state secrets privilege to prevent disclosure of two internal Inspector General investigations that the CIA initiated after Horn filed suit. The district court upheld the privilege claim. The government subsequently filed a classified motion to dismiss Horn’s suit in November 2000. Horn replied by moving for discovery under the Classified Information Procedures Act (CIPA) 18 U.S.C. app. III November 1, 2000 seeking to postpone a reply to the government’s motion until the district court decided his CIPA motion. The district court granted the government’s motion to dismiss the complaint pursuant to Federal Rules of Procedure 12(b)(6) on July 28, 2004.[1] Horn appealed this dismissal and the Court of Appeals reviewed it de novo.
The court examined whether the state secrets privilege required it to dismiss Horn’s complaint asserting the violation of his Fourth Amendment right. It noted that the state secrets privilege is a common law evidentiary rule to protect information from being disclosed when it would gravely harm national security. Horn claimed that the state secrets privilege does not apply in Bivens actions, and furthermore, his case could continue with non-privileged materials. Bivens actions permit damages for injuries that public officials cause through Fourth Amendment violations, notwithstanding the lack of a specific statutory cause of action. The district court held that it was “indisputable” that such actions apply to protect American citizens abroad. The court of appeals held that as long as the state secrets privilege operates as a rule of evidence rather than to modify Horn’s constitutional rights, the U.S. may invoke it in Bivens actions. The court held however, that Horn’s case did not have to be dismissed in its entirety, because Horn could use portions of the CIA reports with little or no risk to national security to establish a prima facie case. The court reasoned that despite the general rule that neither party may use privileged evidence; the court has permitted it to be used where the U.S. government claims it at the possible detriment to a civilian plaintiff.
[1] The delay in the district court deciding the motion was evidently due in part to the death of the judge to whom the motion was assigned; the court therefore reassigned the case in 1999.
The United States District Court for the Eastern District of Virginia held that Mohamed Ali Samantar was immune from suit under the Foreign Sovereign Immunity Act (FSIA). It granted his Fed. R. Civ. P.12(b)(1) motion to dismiss the Torture Victim Protection Act (TVPA) (28 U.S.C. §1350 (Note)) and the Alien Tort Statute (ATS)(28 U.S.C. §1350) suit against him.
Mohamed Ali Samantar served as Vice President, Minister of Defense, and Prime Minister of Somalia in the 1980s and 1990s. Plaintiffs alleged that Samantar, as leader of the Somali Armed Forces, knew or should have known that his subordinates committed torture, extrajudicial killing, crimes against humanity, war crimes, cruel, inhuman and degrading treatment and arbitrary detention. Plaintiffs further asserted that while Samantar served as Prime Minister, he exercised command and control over the Somalia military that perpetrated attacks upon civilians in 1988. Samantar currently resides in Fairfax County, Virginia.
Plaintiffs Bashe Abdi Yousuf, John Doe I, John Doe II, and Jane Doe claimed that Somali National Security Service (NSS) agents subjected them to various forms of torture including waterboarding, rape, and attempted execution, as well as arbitrary detention. Plaintiff Yousuf currently resides in the U.S.
Plaintiffs filed suit November 10, 2004. The court stayed the proceedings pending the possible filing of a U.S. State Department statement of interest (SOI). The court restored the case to active docket January 22, 2007, when the State Department had not filed a SOI. Samantar moved to dismiss the complaint arguing that as former Prime Minister and Minister of Defense, he was immune from suit under FSIA 28 U.S.C. §1602 et seq. The plaintiffs alleged that FSIA should not apply to Samantar because by acting in violation of international norms, he exceeded the scope of his authority. Noting that this issue was one of first impression for the Fourth Circuit, the court turned to decisions of other federal circuits for guidance. It examined Belhas v. Ya’Alon, 466 F. Supp. 2d 127 (D.D.C. 2006); and Matar v. Dichter, 2007 WL 1276960 (S.D.N.Y.) May 2, 2007; both of which supported the court’s decision to dismiss the suit for lack of subject matterjurisdiction.
By contrast, plaintiffs relied upon precedent from the Ninth Circuit in which courts have pierced immunity claims and found defendants liable for acting outside the scope of their authority. (See for example Trajano v. Marcos, 978 F.2d 493 (9th cir. 1992); and Hilao v. Marcos, 25 F.3d 1467 (9th Cir. 1994)). The court distinguished both cases however, because in Trajano the defendant defaulted and was deemed to have admitted the allegations in the complaint; and in Hilao, the government of the Philippines stated that Marcos’s actions were beyond the scope of his authority.
In deciding to grant Samantar’s motion to dismiss, the court noted that at least two courts have held that violations of even jus cogens norms do not permit a waiver of sovereign immunity. (See Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1156 (7th Cir. 2001)).
RESOLUTIONS, DECLARATIONS, AND OTHER DOCUMENTS
International Committee for the Red Cross: Response of Jean-Marie Henckaerts to the United States Comments on Customary International Law Study (July 2007)
Click here for document. (Approximately 16 pages).
Jean-Marie Henckaerts, legal adviser, Legal Division, International Committee of the Red Cross (ICRC), served as head of the ICRC study on customary international humanitarian law (see Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume I: Rules and Volume II Practice, Cambridge Univ. Press, 2005)(Study). In this document, he responds to John Bellinger and William Haynes’s letter to Dr. Jakob Kellenberger, President, ICRC, in which they critique the Study on the methodolody used to determine what constitutes customary international humanitarian law (see 46 I.L.M. 514 (2007)).
First, Henckaerts provides background on the genesis of the Study. He notes that the International Group of Experts for the Protection of War Victims proposed the Study in January 1995 as one of a series of suggestions to improve the respect for international humanitarian law. The 26th International conference of Red Cross and Red Crescent approved the proposal December 1995, and required the ICRC to draft a study on customary rules of international humanitarian law that pertain to international and other armed conflicts. During the course of a decade the ICRC performed research and consulted with over 150 governmental and academic experts for the Study.
Second, Henckaerts welcomes the Bellinger/Haynes comments as the first formal governmental-level discussion that the ICRC has received on the Study, and evidence of the seriousness with which the U.S. government holds it and international humanitarian law in general.
Third, Henckaerts proceeds to discuss a number of the critiques of the study that Bellinger and Haynes raised in their letter: 1) the “density of practice” required for customary international law to form, and relevant practice; 2) the way in which the study examined opinio juris; 3) the weight given commentaries on the rules; 4) the larger implications of the study regarding Additional Protocols I and II and the law on non-international armed conflicts; and 5) Rules 31 (protection of humanitarian personnel, 45 (prohibition on long-term damage to the environment, 78 ((prohibition on use of anti-personnel exploding bullets), and 157 (right to create universal jurisdiction over war crimes), that the U.S. examined specifically in its letter to the ICRC.
In his discussion of the requisite density required to establish customary international law, Henckaerts notes that while customary international law practices must be “extensive and virtually uniform” there is nevertheless no mathematical formula for calculating how widespread a practice must be. Further, while some rules are prohibitive or obligatory, still others are merely permissive. He emphasizes that ICRC practice did not “tip the balance” toward treating a rule as customary, and the ICRC study did not give NGO statements any weight in the determination of what is customary. As to how the study examined opinio juris, he indicates that the study did not merely infer opinio juris from practice, but rather analyzed each rule to ascertain whether the necessary elements for customary international law, opinio juris and practice, were present.
Finally, Henckaerts emphasizes that the study attempts to be a working tool for practitioners, rather than a theoretical handbook, and courts such as the United States Supreme Court in Hamdan v. Rumsfeld, and the Israeli Supreme Court in The Public Committee against Torture in Israel and others v. The Government of Israel and others, have already cited the study in their opinions.
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