December 21 - 25, 1998 Developments in international law, prepared by the Attorney-Editors of International Legal Materials The American Society of International Law
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Judicial
Decisions
ICTY: Prosecutor v. Furundzija,
IT-95-17/1-T (Dec. 10, 1998)
Furundzija, the local commander of the Croatian Defence
Council Military Police unit known as the "Jokers",
was charged with two counts of the violations of the
laws and customs of war, arising out of interrogations
of a Muslim woman and a Bosnian Croat man in which Furundzija
questioned the pair while "B", another member of the
Jokers, threatened sexual violence against the woman,
beat them, and raped the woman in the presence of the
man and others. paras. 25-26. The Trial Chamber
found that it had "no doubt that the accused and Accused
B, as commanders, divided the process of interrogation
by performing different functions. The role of
the accused was to question, while Accused B's role
was to assault and threaten in order to elicit the required
information...." para. 130.
As an initial matter, the Trial Chamber characterized
the prohibition against torture as a peremptory norm
of international law, which is owed toward all
nations as an erga omnes obligation, and noted
that rape which occurs during interrogation may amount
to torture. paras. 144, 147, 151-153, 163. The
Trial Chamber emphasized that "if an official interrogates
a detainee while another person is inflicting severe
pain or suffering, the interrogator is as guilty of
torture as the person causing the severe pain or suffering,
even if he does not in any way physically participate
in such infliction." para. 256. The Trial Chamber distinguished
accomplice liability for aiding and abetting from that
of a perpetrator: "(i) to be guilty of torture
as a perpetrator (or co-perpetrator), the accused must
participate in an integral part of the torture and partake
of the purpose behind the torture, that is the intent
to obtain information or a confession, to punish or
intimidate, humiliate, coerce or discriminate against
the victim or a third person. (ii) to be guilty of torture
as an aider or abettor, the accused must assist in some
way which has a substantial effect on the perpetration
of the crime and with knowledge that torture is taking
place." para. 257.
Applying those principles, the Trial Chamber found
Furundzija guilty as co-participant, in the torture
of the Moslem woman by virtue of his interrogation of
her "as an integral part of the torture, " as well as
of the Croatian man who was beaten and forced to watch
the sexual attacks on the woman. para. 267-268.
The Trial Chamber further found Furundzija guilty of
aiding and abetting the rape and sexual assault on the
woman, although he was not physically in the room during
the attacks, on the grounds that his "presence and continued
interrogation of [the woman] encouraged Accused B and
substantially contributed to the criminal acts committed
by him." para. 273. Furundzija was sentenced to
ten years imprisonment for the first count and eight
years imprisonment for the second count, both sentences
to be served concurrently, less a deduction for time
served in pretrial detention. DL
download in Adobe pdf format http://www.un.org/icty/furundzija/judgment/FinalFurjud.pdf
U.S. Second Circuit: Rein v. Socialist
People's Libyan Arab Jamahiriya, 98-7467 (Dec. 15, 1998)
The U.S. Court of Appeals for the Second Circuit affirmed
the decision of the District Court that the exercise
of civil jurisdiction against Libya arising out of the
downing of PanAm flight 103 over Lockerbie pursuant
to the Foreign Sovereign Immunities Act, as amended
by the Antiterrorism and Effective Death Penalty Act
(AEDPA) is not an unconstitutional delegation of the
power to establish the jurisdiction of the federal courts.
The Second Circuit held that as that Libya was already
on the list of state sponsors of terrorism at the time
that the Antiterrorism and Effective Death Penalty Act
was passed by Congress, jurisdiction over Libya existed
at the moment that the AEDPA amendment became law, without
requiring the exercise of discretion by Executive branch
through the State Department. In dicta,
the court noted that the issue of unconstitutional delegation
might be brought by a state sued under the amended act
that was not on the list at the time of passage of the
AEDPA. DL http://www.law.pace.edu/lawlib/legal/us-legal/judiciary/second-circuit/test3/98-7467.opn.html
WTO: Working Group on Transparency
in Government Procurement - Report (1998) to the General
Council, WT/WGTGP/2 (Nov. 17, 1998)
The Working Group on Transparency in Government Procurement
issued a report on issues relating to an eventual agreement
on transparency in government procurement. An
initial matter discussed was whether transparency disciplines
should be applied to both international procurements
as well as procurements limited to national suppliers.
sect. I. The question of whether concession agreements,
privatizations, and privately-financed infrastructure
projects (build-operate-transfer or BOT projects) should
be subject to a transparency agreement was discussed.
sect I(C). A range of views regarding the applicability
of transparency measures to various forms of procurement,
ranging from tendering to sole source purchasing was
considered. sect. II. The Working Group stressed the
importance of publication of information on national
procurement legislation and procedures and that publication
requirements could be satisfied through publication
in either print or electronic media, at the discretion
of Members. sect. III. Section IV presents views
regarding details on information to be provided in notices
of procurement opportunities, including evaluation criteria,
clarifications and modifications, and notification language
and form of publication, while Section V suggests setting
forth a general principle for establishing time periods
for various pre-evaluation stages in the procurement
process. The usefulness of bidder registration
and qualification was noted, as was the essential feature
of procurement transparency that decisions on contract
awards should be made "strictly on the basis of the
evaluation criteria." sect. VI, VII. The provision of
post-award information to bidders, including unsuccessful
bidders, was discussed, as was the importance of a domestic
review mechanism in order to ensure accountability and
procedural fairness. paras. 66-71, sect. VIII. Other
issues considered in the report include the maintenance
of procurement decision records; the use of information
technology in procurement; notification of procurement
information to other Members; the potential applicability
of the WTO dispute settlement mechanism to procurement
transparency; and technical cooperation and special
and differential treatment for developing countries.
sect. IX-XII. DL
Download in MS Word http://www.wto.org/wto/new/wtwgtgp2.doc
News
and Notes
The Office of the U.S. Trade
Representative released a list of European products
which will be subject to a 100% import duty as
a result of the dispute over E.U. implementation of
WTO Dispute Resolution Body rulings decisions concerning
the E.U. banana importation regime. The list
of products, which the United States will submit to
the WTO in a request for authorization to suspend trade
concessions on January 21st, include (1) pecorino cheese;
(2) sweet biscuits, waffles and wafers; (3) bath preparations;
(4) candles; (5) forms of polymers of propylene; (6)
plastic-covered handbags; (7) certain plastic articles
carried in a pocket or handbag; (8) felt paper and paperboard;
(9) folded cartons and boxes; (10) greeting cards; (11)
lithographs; (12) cashmere sweaters; (13) cotton print
bed linen; (14) certain types of lead-acid batteries;
(15) household coffee and tea makers; and (16) chandeliers
and other ceiling and wall lighting fixtures.
Certain pork and olive products may also be added to
the list, depending on public comment. The U.S.
stated that the withdrawal of trade concessions will
not affect imports from the Netherlands or Denmark because
of their voting record against the adoption of the new
E.U. banana rules.
Download from U.S.T.R. in Adobe pdf format
http://www.ustr.gov/releases/1998/12/98-113.pdf
Senegal has announced
a ban on female genital mutilation. The
executive ban has been submitted to the National Assembly
to be formalized as legislation. The B.B.C. reports
that the penalty for the practice of female genital
mutilation is up to five years imprisonment.
The Law Centre for European and
International Cooperation (R.I.Z.) is hosting a
conference, Non-Judicial Dispute Settlement in International
Financial Transactions at the Crown Plaza Hotel
in Cologne, Germany on March 22-23, 1998.
Among the speakers scheduled to participate are Norbert
Horn, Ambassador Roberto McLean, Joe Norton, Jeswald
Salacuse, Richard Kreindler, and Marc Steinberg.
For further information, visit the Conference web site,
http://www.uni-koeln.de/jur-fak/riz/dispute.htm
International Law In Brief - Copyright 1998 - The American
Society of International Law Editors: Elizabeth J. Fabrizio, David A.
Levy Intern: Alice Epler
To comment on this publication, send an e.mail message
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