August 31 - September 4,
1998 Developments in international law, prepared by the Attorney-Editors of International Legal Materials The American Society of International Law
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the Editors
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International Criminal Tribunal for
Rwanda, The Prosecutor v. Jean-Paul Akayesu, ICCTR-96-4-T
(Sept. 2, 1998)(non-official judgment summary
text released by the Tribunal)
The International Criminal Tribunal for Rwanda found
Jean-Paul Akayesu, former mayor of the Taba commune,
guilty of crimes of genocide and crimes against humanity
arising out of massacres of ethnic Tutsis in the Taba
commune in 1994. The Trial Chamber noted that
genocide is defined in the Convention for the Prevention
and Punishment of the Crime of Genocide as "the act
of committing certain crimes, including the killing
of members of the group or causing serious physical
or mental harm to members of the group, with the intent
to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such." para. 13.
The Trial Chamber found that genocide targeting the
Tutsi as a group in Rwanda was committed in 1994. para.
19. The Chamber held that although the presence
of an armed conflict may have facilitated the genocide
by providing a pretext to incite violence against the
Tutsis by identifying them with an armed faction, the
presence of the armed conflict cannot be a mitigating
circumstance for the genocide. para. 19. The Chamber
noted that in his official capacity, Akayesu had effective
authority over the communal police and was responsible
for maintaining order, but that after April 18, 1994
he was present at acts of violence against Tutsis, including
armed instances of rape, and even ordered several killings.
paras. 26-27.
The Chamber noted that there was no commonly-accepted
definition of the term "rape" in international law.
para. 37. Noting that rape was a form of aggression,
the Chamber defined rape as "a physical invasion of
a sexual nature, committed on a person under circumstances
which are coercive. Sexual violence, including
rape, is not limited to physical invasion of the human
body and may include acts which do not involve penetration
or even physical contact. The Chamber note[d]
in this context that coercive circumstances need not
be evidenced by a show of physical force. Threats,
intimidation, extortion and other forms of duress which
prey on fear or desperation may constitute coercion."
para. 38.
The Chamber applied the doctrine of "notional plurality
of offenses", stating that although genocide and crimes
against humanity are separate offenses, convictions
for both are possible arising out of the same action.
para. 40. The Chamber noted that genocide is a
"special intent" crime requiring a special intent to
destroy an individual, or individuals, targeted as a
member of a group, that the victim of the crime of genocide
is the group itself rather than the individual alone,
and that intent can be inferred contextually from the
particular acts. paras. 43-44. The Chamber
defined the crimes of complicity in genocide and direct
and public incitement to commit genocide, and also considered
the caselaw regarding crimes against humanity, stating
that the act in question must be committed "as part
of a widespread or systemic attack directed against
a civilian population on discriminatory grounds."
paras. 46-48.
In its unanimous findings, the Chamber found Akayesu
guilty of genocide; crimes against humanity including
extermination, rape, murder, torture, and other inhumane
acts; as well as guilty of direct and public incitement
to commit genocide. paras. 51, 57-63. The
Chamber stated its desire to underscore that in its
opinion, the acts of rape and sexual assault under the
facts "constitute genocide in the same way as any other
act" and that rape and sexual violence are "one of the
worst ways of inflicting harm on the victim as he or
she suffers both bodily and mental harm." para. 51.
The Chamber found Akayesu not guilty of complicity in
genocide, because genocide and complicity in genocide
are "mutually exclusive by definition" and that the
accused could not be found guilty of both for the same
act. para. 56. The Chamber further found Akayesu
not guilty of the charges based on the Geneva Conventions
and Additional Protocol II, holding that the prosecutor
failed to adequately link Akayesu to the armed
forces and the war effort. para. 64. DL. http://www.ictr.org/english/singledocs/jpa_summary.html
European Court of Human Rights,
Case of Sheffield and Horsham v. The United Kingdom,
No. 31-32/19097/815- 816/1018-1019, July 30, 1998
The European Court of Human Rights has found that States
have no positive obligation under the European Convention
on Human Rights to recognize for legal purposes the
new sexual identities of post-operative transsexuals.
Sheffield and Horsham are transsexuals who individually
brought suit against the United Kingdom for its refusal
to give legal recognition to their status as women following
gender re-assignment surgery. They argued that
this refusal constituted interference with their rights
of respect for their private lives, guaranteed under
Article 8 of the European Convention on Human Rights.
Both plaintiffs challenged the State's refusal to amend
their birth certificates to reflect their new gender.
Ms. Sheffield further took issue with the fact that
her original gender continues to be reflected in police
records, and used for the computation of social security
benefits and insurance premiums. Ms. Horsham,
who currently resides in the Netherlands and intends
to marry a male partner, argues that her continued legal
status in the United Kingdom as a male would place the
validity of her planned marriage in doubt there.
This, she contends, constitutes a violation of her right
to marry, guaranteed under Article 12 of the Convention,
and amounts to constructive exile from the United Kingdom
once she is married.
By a vote of eleven to nine, the Court found no disproportionate
interference with the plaintiff's rights of respect
for their private lives. The detriment they suffered
through being obliged in certain circumstances to disclose
their pre-operative gender was not of sufficient seriousness
as to override the State's interests in clearly tracking
their identities in the contexts of social security
eligibility or criminal records. The United Kingdom,
moreover, had made efforts to minimize intrusive inquiries
into their gender status. With regard to Article
12, the Court found by a vote of eighteen to two
that it was within the power of Contracting States to
regulate by national law the exercise of the right to
marry, and that the underlying purpose of Article 12
-- the protection of the family -- justifies the continued
use of biological criteria for determining a person's
sex for the purposes of marriage. The Court was,
furthermore, not persuaded that Ms. Horsham's complaint
raised issues under Article 12, since she had yet to
seek a ruling on the validity of her marriage in the
United Kingdom's courts and thus could not be considered
to have exhausted national remedies.
In a partial dissent, seven judges led by Judge Bernhardt
found a violation of Article 8. They argued that
the majority had applied existing precedent too narrowly,
particularly in light of the trend in other Member States
of the Council of Europe towards greater legal recognition
of transsexual's new gender identities. In all,
23 Member States currently allow the modification of
entries in the birth certificates of post-operative
transsexuals, while only four expressly forbid the practice.
Judge Casadevall, in a separate partly dissenting opinion,
found that the United Kingdom had not gone far enough
to strike the necessary balance between the general
interest and the interests of the individual. Judge
Van Dijk, in a dissenting opinion, found full legal
recognition of post-operative sexual identity to be
required under Article 8, and went on to argue that
Article 12 had been violated as well, since full legal
recognition of the applicant's status as women would
be meaningless if they were not allowed to marry as
women. CB. http://www.dhcour.coe.fr/eng/SHEFFIELD%20AND%20HORSHAM%20ENG.html
Itar-Tass Russian v. Russian Kurier,
Inc., No. 97-7498 (2d Cir. August 27,1998)
In a case concerning the unauthorized reproduction
in the United States of news articles which have appeared
in Russian newspapers and Russian news agency stories,
the Second Circuit considered choice of law issues generally
in international copyright disputes, holding that the
law of the country with the closest relation to the
work -- generally the country of origin -- is determinative
of the scope of ownership of the intellectual property
right, while the law of the place of the alleged copyright
infringement governs the infringement claims.
The court noted that scope of ownership rights is important
to determine if a use infringes on an asserted copyright.
On the facts, the court held that under Articles 11
and 14 of the Russian copyright law, authors of newspaper
articles retain the "exclusive right to exploit their
works independently of the publication of the entire
work" and newspaper publishers cannot sue for the unauthorized
copying of individual news articles, but may instead
seek to demonstrate that the copying damaged their protected
property interest in the compilation and presentation
of the articles. The Itar-Tass news agency had
the benefit of the Russian equivalent of the "work for
hire" doctrine and therefore could enjoin unauthorized
copying. DL.
Full text at Findlaw - http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=2nd&navby=case&no=977498
ICJ: Request for an Advisory
Opinion transmitted to the Court pursuant to Economic
and Social Council decision 1998/297 of 5 August 1998,
Difference Relating to Immunity from Legal Process of
a Special Rapporteur of the Commission on Human Rights
(Request and Order)
The Economic and Social Council of the United Nations
has requested an advisory opinion from the International
Court of Justice (ICJ) pursuant to Section 30 of the
Convention on the Privileges and Immunities of the United
Nations. At issue is a difference that has arisen
between the United Nations and the Government of Malaysia
with respect to the immunity from legal process of Mr.
Dato' Param Cumaraswamy, the Special Rapporteur of the
Commission on Human Rights on the Independence of Judges
and Lawyers.
Mr. Cumaraswamy was named as a defendant in four civil
defamation suits in Malaysia resulting from statements
he made in November 1995 in an article in International
Commercial Litigation, a magazine published in the
United Kingdom and circulated in Malaysia. The
Secretary-General has issued notes with regard to each
of the suits confirming, based on a determination by
the UN Legal Counsel, that Mr. Cumaraswamy's remarks
were made in his official capacity as a Special Rapporteur
and that he should be afforded immunity under the Convention.
Without making reference to the Secretary-General's
determination, the Malaysian Ministry of Foreign Affairs
filed a certificate with the Malaysian court which effectively
called for the court to determine the immunity question.
The High Court for Kuala Lumpur declined to hold that
Mr. Cumaraswami was protected by the immunity claimed,
in part because it considered the Secretary-General's
notes merely to be "opinions" without binding legal
effect. After further attempts to stay the court
proceedings or to reach an out-of-court settlement failed,
the United Nations and the Government of Malaysia agreed
to refer the matter to the ICJ.
The United Nations has asked the ICJ to consider two
questions:
"1. Subject only to Section 30 of the Convention on
the Privileges and Immunities of the United Nations,
does the Secretary-General of the United Nations have
the exclusive authority to determine whether words were
spoken in the course of the performance of a mission
for the United Nations within the meaning of Section
22(b) of the Convention?
2. In accordance with Section 34 of the Convention,
once the Secretary-General has determined that such
words were spoken in the course of the performance of
a mission and has decided to maintain, or not to waive,
the immunity from legal process, does the Government
of a Member-State party to the Convention have an obligation
to give effect to that immunity in its national courts
and, if failing to do so, to assume responsibility for,
and any costs, expenses and damages arising from, any
legal proceedings brought in respect of such words?"
The Secretary-General has received numerous interventions
from representatives of the international human rights
and legal community in favor of referring the matter
to the ICJ, reflecting the concern that, in the words
of the United Nations Commission on Human Rights,
"undermining the immunity accorded to one expert constitutes
an attack on the entire system and institution of United
Nations human rights special procedures and mechanisms."
On August 10, 1998, the President of the ICJ issued
an order on submission of written statements and responses
from the parties. The Court calls upon the Government
of Malaysia to stay all court proceedings in this matter
and to accept the advisory opinion as decisive.
CB.
Full text of the Request for an Advisory Opinion and
Order http://www.icj-cij.org/idocket/inuma/inumaframe.htm
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