Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law June 6, 2003
United States (U.S.) Court of Appeals for the Ninth
Circuit: Alvarez-Machain v. United States et. al.
(No. 99-56762); Alvarez-Machain v. Sosa et. al.
(No. 99-56880) (June 3, 2003)
The Ninth Circuit, in an en
banc decision, held 6-5 that “the unilateral,
nonconsensual extraterritorial arrest and detention of
Alvarez were arbitrary and in violation of the law of
nations under the ATCA [Alien Tort Claims Act].”
The court held that Alvarez could seek a remedy in federal
courts pursuant to the ATCA and the Federal Tort Claims
Act (the “FTCA”) for violations of the law
of nations.
The background to the case
concerns the arrest in Mexico and transborder abduction
of Alvarez for his alleged participation in the murder
of a DEA Special Agent. The United States negotiated with
Mexican government officials to take custody of Alvarez,
but made no formal extradition request. Rather, the DEA
approved the employment of Sosa, a former Mexican policeman,
along with other Mexican civilians not affiliated with
either government, who abducted Alvarez in Mexico. Alvarez
was flown to the U.S. for trial and remained in custody
from April 1990 to December 1992. Alvarez moved to dismiss
the indictment, on the grounds that his arrest violated
the United States-Mexico Extradition Treaty.
Both the district court and
the Ninth Circuit upheld Alvarez’s claims, but the
Supreme Court reversed and remanded for trial. The
Supreme Court held that Alvarez’s arrest did not
violate the United States-Mexico Extradition Treaty, and
found that a U.S. court retained its power to try a person
for a crime even where the person was brought within the
court’s jurisdiction by forcible abduction. Alvarez-Machain
II, 504 U.S. at 670. However, the Supreme Court observed
that Alvarez’s abduction “may be in violation
of general international law principles” and that
it could give rise to a civil remedy. After the Supreme
Court ruling, the case proceeded to trial, in which Alvarez
was acquitted of his charges due to insufficient evidence
produced by the government. After returning to Mexico
in 1993, Alvarez filed a civil action in California district
court against Sosa and other Mexican civilians, in addition
to the United States and four DEA agents, in which he
alleged a number of tort claims such as kidnapping, torture,
cruel, inhuman and degrading punishment, arbitrary detention,
assault and battery, and false imprisonment. In addition,
Alvarez alleged that his kidnapping, torture and arbitrary
detention, inter alia, constituted violations of
the Fourth, Fifth and Eighth Amendments. The district
court entered summary judgment for Alvarez’s claims
against Sosa under the ATCA for kidnapping and arbitrary
detention, finding that state-sponsored, cross-border
abductions and arbitrary detention violated customary
international law. The district court found for Sosa on
all remaining claims and held that Alvarez could recover
damages under the ATCA only for his detention in Mexico
prior to his arrival in the United States. The court
also held that no exception applied to render the United
States immune from jurisdiction under the FTCA.
On appeal, Alvarez argued,
inter alia, that he was entitled to a remedy under
the ATCA for two separate violations of international
law: (1) that state-sponsored abduction within the territory
of another state without its consent is a violation of
the international law of sovereignty and the customary
norms of international human rights law; and (2) that
his seizure and confinement violated the customary norm
against arbitrary arrest and detention. Alvarez also appealed
the district court’s limitation of recoverable damages
under the ATCA to his detention prior to arrival in the
United States. Finally, Alvarez appealed the dismissal
of his FTCA claims.
The Ninth Circuit held that
Alvarez could not bring a claim under ATCA in order to
vindicate Mexico’s injury. As for Alvarez’s
contention that transborder abduction violated customary
international law, the Ninth Circuit disagreed with both
Alvarez and the district court’s ruling, finding
that there was no clear and universally recognized norm
prohibiting transborder abduction under customary international
law.
As to the second basis for
a violation of ATCA, however, the Ninth Circuit found
that the arbitrary arrest and detention of Alvarez, unlike
transborder abduction, was prohibited under a recognized
norm of customary international law, as reflected in major
comprehensive human rights treaties, in addition to over
a hundred national constitutions.
The Ninth Circuit upheld the
district court’s limitation of recoverable damages
to those acts occurring prior to Alvarez’s arrival
in the United States, finding that “the actions
of domestic law enforcement authorities set in motion
a supervening prosecutorial mechanism which met all of
the procedural requisites of federal due process and ultimately
received the blessing of the United States Supreme Court.”
The Ninth Circuit upheld the
district court’s decision regarding the FTCA. The
United States argued on appeal that Alvarez’s claim
fell within one of the statutory exclusions to FTCA jurisdiction,
in particular, the “foreign activities” exception
or the “intentional tort” exception. The Ninth
Circuit concluded that neither exception applied, and
further held that since the primary tortious act was the
initiation and planning of Alvarez’s abduction by
the DEA agents, Alvarez’s claim fell squarely within
the law enforcement provision of the FTCA.
The United States also argued
that its abduction of Alvarez was lawful pursuant to its
authority to apply U.S. criminal law extraterritorially
under the Controlled Substances Act, 21 U.S.C. §878(a)(3).
The Ninth Circuit disagreed, noting that Congress did
not authorize the unilateral, extraterritorial enforcement
of this provision in foreign countries by U.S. agents.
According to the Ninth Circuit, “[e]xtraterritorial
application, in other words, does not automatically give
rise to extraterritorial enforcement authority.”
Supreme
Court of Israel: Physicians for Human Rights and the
Palestinian Center for Human Rights v. Major-General Doron
Almoj, Southern Commander and the State of Israel-Minister
of Security (April 13, 2003)
The Israeli Supreme Court
denied the petitioners’ request for an order banning
the Israeli Defense Forces (“IDF”) from using“flechette” tank shells pursuant to its
operations in the Gaza-Strip region.
According to the Court, “In
general, and without giving further details about the
directions it was noted that the use of flechette shells
was restricted to zones in which the risk to injure innocents
is not significant and only towards persons suspected
to be endangering the IDF soldiers or Israeli citizens.
In their reference to the incidents detailed in the petition,
in which the use of flechette shells caused the death
of civilians, the respondents described the circumstances
of the incidents. As much as injuring those civilians
is unfortunate, we do not believe that the use of flechette
in any of those incidents was contrary to the directions
that regulate the use of this weapon. Moreover, as much
as we might be impressed, the same civilians might have
been injured from the use of normal shells. Hence, the
injuries are not necessarily imputable to the use of flechettes.”
The Court observed that the
question of whether to ban the use of flechette shells
in terms of the Convention on Conventional weapons has
never been supported, and was removed from the agenda
for the Convention. The Court noted that the Convention
on Conventional Weapons banned the use of other war materials,
that Israel joined the Convention in 1995, has ratified
it and is obliged to follow its prohibitions and restrictions
on weapons. The Court found, however, that since nothing
in the Convention on Conventional Weapons banned the use
of flechette shells, the petitioners’ contention
that such use was in violation of the laws of war was
without grounds.
European Court of Human Rights (ECHR):
Case of Tahsin Acar v. Turkey, Application No.
26307/95 (May 6, 2003)
The ECHR (Grand Chamber) held
that Turkey’s unilateral declaration with a view
to resolving the issues raised by the applicant did not
offer a sufficient basis to strike this disappearance
case out of the Court’s list of cases in accordance
with Art. 37(1)(c) of the European Convention
for the Protection of Human Rights and Fundamental Freedoms
("the Convention").
Mr. Acar, who filed the application
against Turkey on October 29, 1994, alleged, inter
alia, that his brother, Mehmet Salim Acar, was abducted
by two plain-cloth police officers, that he was unlawfully
detained for an excessive length of time and that he neither
received necessary medical care nor the services of a
lawyer. Mr. Acar relied on Articles 2, 3, 5, 6, 7, 8,
13, 14, 18, 34 and 38 of the Convention.
The parties failed to reach
a friendly settlement which would have led to the striking
out of the case (see Articles 38, 39 of the Convention)
On August 27, 2001, however, the Turkish government requested
the Court to strike out the case on the basis of its unilateral
declaration. On April 9, 2002, the Chamber, with regard
to the admission and undertakings contained in the declaration
and the amount of compensation proposed, considered it
no longer justified to examine the application and decided
to strike it out of the Court’s list. Upon the applicant’s
request, however, the case was referred to the Court’s
Grand Chamber.
Article 37(1)(c) of the Convention
reads: “(1) The court may at any stage of the proceedings
decide to strike an application out of its list of cases
where the circumstances lead to the conclusion that (c)
for any other reason established by the Court, it is no
longer justified to continue the examination of the application.”
The last sentence of Article 37 reads: “However,
the Court shall continue the examination of the application
if respect for human rights as defined in the Convention
and the protocols thereto requires.” The Grand Chamber
noted that it depends on the circumstances of the case
whether an application may be struck out under Article
37(1)(c) of the Convention on the basis of a unilateral
declaration by the respondent Government. The Court provided
a nonexclusive list of factors that it deemed to be relevant
in this context. This list includes: (1) “the nature
of the complaints made”; (2) “whether the
issues raised are comparable to issues already determined
by the Court in previous cases”; (3) “the
nature and scope of any measures taken by the respondent
Government in the context of the execution of judgements
delivered by the Court in any such previous cases, and
the impact of this measures on the case at issue”;
(4) “whether the facts are in dispute between the
parties”; (5) “whether in their unilateral
declaration the respondent Government have made any admission(s)
in relation to the alleged violations of the Convention
and, if so, the scope of such admissions and the manner
in which they intend to provide redress to the applicant.”
The Court observed that the
facts of the present case are to a large extent in dispute
between the parties. Moreover, the Court found that the
Government in its declaration made neither a proper admission
of liability nor did it refer to measures to deal with
the applicant’s complaints. The Court noted that
in cases “concerning persons who have disappeared
or have been killed by unknown perpetrators and where
there is prima facie evidence in the case-file
supporting allegations that the domestic investigation
fell short of what is necessary under the Convention,
a unilateral declaration should at the very least contain
an admission to that effect, combined with an undertaking
by the respondent Government to conduct, under the supervision
of the Committee of Ministers in the context of the latter’s
duties under Article 46(2) of the Convention, an investigation
that is in full compliance with the requirements of the
Convention as defined by the Court in previous similar
cases.” Thus, the Court concluded that “respect
for human rights requires that the examination of the
case be pursued pursuant to the final sentence of Article
37(1) of the Convention.”
German Legislature:
Act to Introduce the Code of Crimes Against International
Law (June 30, 2002)
An Act to Introduce the German
Code of Crimes Against International Law (CCAIL) was passed
by the Federal Parliament on June 26, 2002 and entered
into force on June 30, 2002, the day after its promulgation
in the Federal Law Gazette.
According to its Section 1,
the Act applies “to all criminal offences against
international law designated under this Act, to serious
criminal offences designated therein even when the offence
was committed abroad and bears no relation to Germany.”
Section 3 addresses the extent
to which an offender might act without guilt when acting
upon military orders or any other comparable order. Section
4 regulates the responsibility of commanders and other
superiors for ordering or failing to prevent the commission
of an offence. Section 5 provides that no statutes of
limitation shall apply “to the prosecution of serious
criminal offences pursuant to this act and the execution
of sentences imposed on their account.”
Sections 6 -12 deal with the
crime of genocide, crimes against humanity and war crimes.
Section 13 provides for the liability of a superior who
negligently violated his duty of supervision. Section
14 penalizes a military commander’s or a civilian
superior’s failure to immediately report a crime
to “the agency responsible for the investigation
or prosecution.”
United
Nations (U.N.) Security Council: Resolution 1484 (The
Situation concerning the Democratic Republic of the Congo),
S/RES/1484 (May 30, 2003)
The U.N. Security Council,
expressing its utmost concern over the fighting and atrocities
in Ituri as well as the grave humanitarian situation in
the townof Bunia, determined that the situation
in the these areas constitutes a threat to the peace process
in the Democratic Republic of the Congo and to the peace
and security of the Great Lakes region.
Acting under Chapter VII of
the U.N. Charter, the Security Council authorized the
deployment of an Interim Emergency Multinational Force
in Bunia in close cooperation with the United Nations
Organization Mission in the Democratic Republic of the
Congo (MONUC). The Resolution stresses that this Interim
Emergency Multinational Force is to employed on a strictly
temporary basis, until September 1, 2003, to allow the
U.N. Secretary-General to reinforce MONUC’s presence
in Bunia. In this regard the Resolution authorizes the
U.N. Secretary General to deploy, within the authorized
limit of MONUC, a reinforced United Nations presence in
Bunia, and requests him to make such deployment by mid-August
2003.
The Resolution denounces violations
of human rights and demands that all support to
armed groups and militias cease, particularly support
in the form of weapons and other military material.
The Resolution further demands that all Congolese parties
and all States in the region actively prevent the supply
of weapons and other military support to armed groups
and militias.
United
Nations (U.N.) Security Council: Resolution 1483 (The
Situation Between Iraq and Kuwait), S/RES/1483 (May 22,
2003)
Acting under Chapter VII of
the U.N. Charter, the Security Council unanimously adopted
Resolution 1483 concerning the situation in Iraq. The
Resolution calls upon the United States and the United
Kingdom (which it describes as “the Authority”
in Iraq) to promote the welfare of the Iraqi people in
terms of effective administration and security in accordance
with the U.N. Charter and other relevant international
law. The Resolution reaffirms Iraq’s obligation
to disarm and encourages the United Kingdom and the United
States “to keep the Council informed of their activities
in this regard,” underlining “the intention
of the Council to revisit the mandates of the United Nations
Monitoring, Verification, and Inspection Commission and
the International Atomic Energy Agency as set forth in
resolutions 687 (1991) of 3 April 1991, 1284 (1999) of
17 December 1999, and 1441 (2002) of 8 November 2002.”
The Resolution calls upon
all Member States to, inter alia, respond to the
humanitarian, security and institutional needs of the
Iraqi people. The Resolution appeals to Member States
to deny safe haven to those members of the former Iraqi
regime allegedly responsible “for crimes and atrocities
and to support actions to bring them to justice.”
Resolution 1483 requests the
U.N. Secretary-General to appoint a Special Representative
for Iraq to report regularly to the Security Council,
to coordinate post-conflict activities of the U.N. and
to coordinate international reconstruction and humanitarian
activities with “the Authority”. The
Resolution supports the formation of an Iraqi interim
administration, “by the people of Iraq with the
help of the Authority and working with the Special Representative.”
The Resolution emphasizes the right of the Iraqi people
to determine their own political future and to control
their natural resources, providing that the U.N. will
play a "vital role in humanitarian relief, the reconstruction
of Iraq, and the restoration and establishment of national
and local institutions for representative governance."
Resolution 1483 lifts all
economic sanctions established under Resolution 661 (1990)
and subsequent relevant resolutions with the exception
of prohibitions related to the supply of arms and related
materials (other than those arms used by the “Authority"
in Iraq). The Resolution determines that export
sales of petroleum and related products will be in accordance
with prevailing international market best practices, to
be audited by the International Advisory and Monitoring
Board for the Development Fund for Iraq. In addition,
the Resolution decides that five percent of all export
sales of petroleum and related products shall be deposited
into the United Nations Compensation fund under Resolution
687 (1991), unless an internationally recognized government
of Iraq and the Governing Council of the United Nations
Compensation Commission decide otherwise.
The Resolution requests that
the Secretary-General of the U.N., in coordination with
the “Authority”, terminate within six months
following the adoption of the resolution the ongoing operations
of the "Oil-for-Food" Program, both at the headquarters
level and in the field, and that responsibility for any
remaining activity under the Oil-for-Food program be transferred
to the “Authority.” Among the measures
necessary to transfer responsibility over remaining activities
in the Oil for Food Program to the United States and to
the United Kingdom, the Resolution requests that the Secretary-General
transfer as soon as possible one billion U.S. dollars
from unencumbered funds in the accounts established under
Resolution 986 (1995) to the Development Fund in Iraq.
World
Health Assembly, World Health Organization (WHO): Resolution
Concerning Severe Acute Respiratory Syndrome (SARS) and
Revision of the International Health Regulations, adopted
at the Fifty-Sixth Annual Meeting (May 28, 2003)
The World Health Assembly
held its Fifty-Sixth Annual Meeting in which it adopted
two resolutions related to Severe Acute Respiratory Syndrome
(SARS) and to international law on infectious diseases.
In its SARS Resolution, the
World Health Assembly urges WHO Member States to, inter
alia, commit fully to controlling SARS and other emerging
infectious diseases through political leadership, adequate
resources, international cooperation and public information,
to apply WHO recommended guidelines on surveillance including
case definitions, to report cases promptly and transparently,
and to use the experience with SARS in order to strengthen
epidemiological and laboratory capacity for the next emerging
infection and the possible deliberate use of biological
weapons.
The World Health Assembly’s
Resolution on the Revision of the International Health
Regulations requests the Director-General to “(1)
take in account reports from sources other than official
notification, to validate these reports according to established
epidemiological principles; (2) to alert, when necessary
and after informing the government concerned, the international
community to the presence of a public health threat that
may constitute a serious threat to neighbouring countries
or to international health on the basis of criteria and
procedures jointly developed with Member States; (3) to
collaborate with national authorities in assessing the
severity of the threat and the adequacy of control measures
and, when necessary, in conducting on-the-spot studies
by a WHO team, with the purpose of ensuring that appropriate
control measures are being employed.”
Click here for the World
Health Assembly Resolution on SARS.
Click here for the Revision
of the International Health Regulations.
Belgium: Complaint filed against U.S. General Tommy
Franks
On May 14, 2003 a complaint
directed against U.S. General Tommy Franks and not yet
named soldiers was filed with a Belgian federal prosecutor
on the basis of the Belgian 1993 Law Concerning Grave
Breaches of International Humanitarian Law as amended
on May 7, 2003. The complaint was brought on behalf of
19 Iraqi and Jordanian plaintiffs and accuses Franks of
being responsible for the commission of certain war crimes.
The complaint argued that none of the obstacles spelled
out in Article 7 Section 1, subsection (1) to (4) of the
1993 Law as amended in 2003 would be implicated and that
the case therefore could go forward in Belgium. Nevertheless,
the Belgium government decided on May 20, 2003 to refer
the case back to the United States.
Special
Court for Sierra Leone (SCSL): Indictment of Liberian
President Charles Taylor
On June 4, 2003 the Special
Court for Sierra Leone disclosed to the public the indictment
against the sitting Liberian President, Charles Taylor.
The indictment accuses Taylor of crimes against humanity,
violations of Article 3 common to the Geneva Conventions
and of Additional Protocol II and other serious violations
of international humanitarian law committed during the
civil war in Sierra Leone.
European
Union (EU): Council Adopted Joined Action on the European
Union Military Operation in the Democratic Republic of
Congo (DCR)
On June 5, 2003 the Council
adopted in accordance with Article 14 of the Treaty on
the EU a Joined Action on the European Union military
operation in the Democratic Republic of Congo. This military
action will be conducted in accordance with the United
Nations Security Council Resolution 1484 of May 30, 2003.
The Editors wish to thank Branislav Maric for his years
of dedication to International Legal Materials
and for his excellent work on the International Law in
Brief. We wish him all the best for his return to Europe
and for an exciting career in international law. He will
be missed!
Also, the ILM Office welcomes Ms. Elisabeth C. Handl
as an intern for the summer. Ms. Handl is a Fulbright
Scholar from Austria and a recent graduate of George Washington
University’s Master of Laws Program.
Editors: Ruth Teitelbaum, Scott Smith
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