Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law June 25, 2003
United Nations (U.N.): Agreement between the U.N. and
Cambodia concerning the Prosecution under Cambodian Law
of Crimes Committed during the Period of Democratic Kampuchea
(June 6, 2003)
On June 6, 2003
the U.N. and Cambodia signed the Agreement concerning
the Prosecution under Cambodian Law of Crimes Committed
during the Period of Democratic Kampuchea. Prior to
the signature, the U.N. General Assembly approved the
Draft Agreement in Resolution 57/228 B. Currently, the
Agreement awaits ratification by Cambodia. According to
its Article 32, the Agreement will enter into force “the
day after both parties have notified each other in writing
that the legal requirements for entry into force have
been complied with.”
According to
its Article 1, the Agreement provides, inter alia,
the legal basis and the principles and modalities for
the cooperation between the U.N. and Cambodia “in
bringing to trial senior leaders of Democratic Kampuchea
and those who were most responsible for the crimes and
serious violations of Cambodian penal law, international
humanitarian law and custom, and international conventions
recognized by Cambodia, that were committed during the
period from 17 April 1975 to 6 January 1979.”
The Agreement
between the U.N. and Cambodia specifies that two Extraordinary
Chambers (a Trial and a Supreme Court Chamber), which
will be established within the existing Cambodian judicial
system, will conduct the trials. Unlike Yugoslavia, Rwanda
and Sierra Leone, where independent international tribunals
were created, the Extraordinary Chambers will form part
of Cambodia’s national court system. The Agreement
recognizes that the Extraordinary Chambers have subject
matter jurisdiction as set forth in the “Law on
the Establishment of the Extraordinary Chambers in the
Courts of Cambodia for the Prosecution of Crimes Committed
During the period of Democratic Kampuchea as adopted and
amended by the Cambodian Legislature under the Constitution
of Cambodia.” The crimes that fall within that jurisdiction
are the crime of genocide as defined in the 1948 Genocide
Convention, crimes against humanity as defined in the
1998 Rome Statute of the International Criminal Court,
grave breaches of the 1949 Geneva Conventions and certain
violations of Cambodian law. The two Chambers will have
personal jurisdiction over “senior leaders of Democratic
Kampuchea and those who were most responsible for the
crimes referred to in Article 1.”
The Agreement
provides that the Trial Chamber will be comprised of three
Cambodian and two international judges and the Supreme
Court Chamber of four Cambodian and three international
judges. The international judges will be appointed by
the Cambodian Supreme Council of Magistracy from a list
of nominees provided by the Secretary General. The Agreement
further provides that if the judges, in making a decision,
do not reach unanimity, an affirmative vote of at least
four judges is required in the Trial Chamber and an affirmative
vote of five in the Supreme Court Chamber.
According to Article
5 of the Agreement there will be a Cambodian and an international
investigating judge who shall co-operate as co-investigating
judges. Furthermore, Article 6 provides that there will
be a Cambodian and an international prosecutor who are
responsible for conducting prosecutions as co-prosecutors.
If the co-investigating judges or the co-prosecutors do
not reach agreement on whether to proceed with the investigation
or the prosecution, Article 7 provides for a procedure
to settle the differences whereby a Pre-Trial Chamber,
composed of three Cambodian and two international judges
makes a decision and the co-investigating judges or co-prosecutors
will proceed according to that decision. If the required
majority for making such a decision, namely, an affirmative
vote of at least four judges, cannot be reached, the investigation
or prosecution has to proceed.
Article 12 provides
that Cambodian procedural law will apply but reassures
that jurisdiction is to be exercised “in accordance
with international standards of justice, fairness and
due process of law, as set out in Articles 14 and 15 of
the 1966 International Covenants
on Civil and Political Rights.”
Article 17 enlists
the financial and other assistance for which the United
Nations are responsible for providing. Finally, Article
28 provides that “should the Royal Government of
Cambodia change the structure or organization of the Extraordinary
Chambers or otherwise cause them to function in a manner
that does not conform with the terms of the present Agreement,
the United Nations reserves the right to cease to provide
assistance, financial or otherwise, pursuant to the Agreement.”
Click here for
the Law on the Establishment of the Extraordinary Chambers
in the Courts of Cambodia for the Prosecution of Crimes
Committed During the period of Democratic Kampuchea.
International Court of Justice (ICJ):Certain
Criminal Proceedings in France (Republic of the
Congo v. France)(June 17, 2003)
On June 17,
2003 the ICJ rejected the Republic of Congo’s request
for the indication of provisional measures, finding, by
fourteen to one votes, that “the circumstances,
as they now present themselves to the Court, are not such
as to require the exercise of its power under Article
41 of the Statute to indicate provisional measures.”
The Court recalled
that the purpose of provisional measures is to preserve
the respective rights of the parties pending the decision
of the Court and that a provisional measure is only justified
if there is urgency. The Court observed that, according
to the Congo’s application, two rights are at stake:
first, the Congo’s right “to require a State,
in this case France, to abstain from exercising universal
jurisdiction in criminal matters in a manner contrary
to international law” and second, the Congo’s
right “to respect by France for the immunities conferred
by international law on, in particular, the Congolese
Head of State.” Thus, the first question the Court
dealt with was “whether the criminal proceedings
currently pending in France entail a risk of irreparable
prejudice to the right of the Congo to respect by France
for the immunities of President Sassou Nguesso as Head
of State, such as to require, as a matter of urgency,
the indication of provisional measures.” The Court
found that, according to the information before it, no
such risk exists at the present time and added that, moreover,
the existence of such a risk has not been established
in regard to the Congo’s Minister of the Interior,
General Oba. The second question for the Court to consider
was whether such a risk of irreparable prejudice exists
“in relation to the claim of the Congo that the
unilateral assumption by a State of universal jurisdiction
in criminal matters constitutes a violation of a principle
of international law.” The Court likewise found
that the proceedings before the Tribunal de grande
instance of Meaux did not constitute a risk of irreparable
prejudice with respect to this second right invoked by
the Congo.
World Trade Organization (WTO): United States¾Rules
of Origin for Textiles and Apparel Products
(WT/DS243/R)
(June 20, 2003)
The dispute concerns
India’s claim that the United States applied its
rules of origin to textiles and apparel as a means of
trade protectionism. The measures challenged concern new
quantitative restrictions for fabric formation under section
334 of the Statement of Administrative Action accompanying
the Uruguay Round Agreements Act of 1994 (“URAA”)
and modified in section 405 of the Trade and Development
Act, in addition to the implementing customs regulations.
On May 7, 2002,
India requested the WTO Dispute Settlement Body (“DSB”)
to establish a Panel in accordance with Article 6 of the
Understanding on Rules and Procedures Governing the Settlement
of Disputes (“DSU”) in order to address its
allegations that the United States’ rules of origin
for textiles and apparel products were inconsistent with
paragraphs (b), (c), (d) and (e) of Article 2 of the Agreement
on Rules of Origin (“RO Agreement”),
and that section 405 of the Trade and Development Act
was a discriminatory measure in favor of European imports.
In regard to section 405, India claimed that the products
chosen for specific exemptions were products exported
from the European Communities, resulting in a de facto
advantage to these countries over India.
The United States
argued that the rules of origin at issue were not inconsistent
with Article 2 of the RO Agreement, rather, the
rules were enacted to prevent circumvention of established
quotas in addition to preventing transshipment.
The United States further argued that the rules of origin
in question were on a Most Favored Nation (MFN) basis
in accordance with WTO Rules, and resulted in facilitating
the flow of international trade.
Among the issues
before the Panel was the interpretation of the operative
clause of Article 2(b) of the RO Agreement, which
provides that rules of origin shall not be used “as
instruments to pursue trade objectives directly or indirectly,”
along with its preceding clause of “notwithstanding
the measure or instrument of commercial policy to which
they are linked.” The Panel interpreted these phrases
as meaning that a measure or instrument of commercial
policy may have restrictive, distorting or disruptive
effects in international trade, but “rules of origin
in and of themselves should not have such adverse effects.”
The Panel observed
that “protecting domestic industry against import
competition” and of “favoring imports from
one Member over imports from another” may in principle
be considered “trade objectives,” for which
rules of origin may not be used. The Panel found however,
that the United States’ use of sector-specific quotas
rather than country-specific quotas was in accordance
with the Agreement on Textiles and Clothing and
therefore did not result in discriminatory, protectionist
measures against India. In terms of section 405 of the
Trade and Development Act, the Panel found that since
it applied “equally to all qualifying goods from
all [WTO] Members,” it could not be said that section
405 was being employed as a means of favoring European
Communities’ imports over imports from other WTO
Members.
In sum, the Panel
rejected all of India’s arguments concerning the
United States’ application of rules of origin for
textile and apparel products, and held, inter alia,
that the rules of origin were not administered in a discriminatory
manner, that they were not adopted in order to protect
the U.S. textile industry from foreign competition, and
that the U.S. rules of origin did not distort or restrict
international trade.
India will have
thirty (30) days to appeal the decision.
United States (U.S.) District Court for the District
of Columbia: Peterson et al. v. Islamic Republic of
Iran, No. 01-2094 (May 30, 2003) and Boulos et
al. v. Islamic Republic of Iran, No. 01-2684 (May
30, 2003)
The District
Court entered a default judgment against the Islamic Republic
of Iran and the Iranian Ministry of Information and Security,
holding defendants “jointly and severally liable
to the plaintiffs for compensatory and punitive damages”
because of their involvement in the marine barracks bombing
in Beirut, Lebanon on October 23, 1983, which caused the
death of 421 American servicemen.
The plaintiffs,
who are family members of the deceased servicemen or survivors
of the attack, had filed claims for wrongful death, battery,
assault and intentional infliction of emotional distress
with the District Court in October and December 2001.
The Court concluded
that the U.S. military service members at issue were part
of a peacekeeping mission operating under peacetime rules
of engagement and that they therefore qualified for recovery.
The Court held that it possessed subject matter and personal
jurisdiction over the defendants because the action fell
within 28 U.S.C.
1605(a)(7), the terrorism exception to the immunity
of foreign states in U.S. Courts. According to 28 U.S.C.
§1605(a)(7) “a foreign state is liable for personal
injury or death that was caused by an act of ... extrajudicial
killing, ... or the provision of material support for
such an act if such act or provision of material support
is engaged in by an official, employee, or agent of such
foreign state while acting within the scope of his or
her office, employment, or agency.” In addition,
§1605(a)(7) requires that the foreign state be designated
as a state sponsor of terrorism by the U.S. Department
of State, that either the plaintiff or the victim must
have been a United States national at the time the act
was committed and that the act must be such, that it would
be actionable if the United States, its agents, officials
or employees within the United States engaged in similar
conduct.
The Court found
that “the development and detonation of an explosive
charge” in the marine barracks constituted an “extrajudicial
killing”, that the Iranian Ministry of Information
and Security actively participated in that attack and
did so within the scope of its agency and that United
States officials engaging in this kind of activity would
also be civilly liable. Since Iran has been continuously
designated as a terrorist state for almost a decade and
the victims were U.S. nationals, the Court found that
all elements of §1605(a)(7) were “established by
clear and convincing evidence”.
The amount of
compensatory and punitive damages will be determined by
the Court on the basis of reports from Special Masters
appointed by the Court.
The U.N. Security
Council, noting the importance of facilitating U.N. Member
States’ contributions to international peacekeeping
missions, requested, pursuant to Chapter VII of the U.N.
Charter, that any State which is not a party to the Rome
Statute of the International Criminal Court (ICC) and
which contributes to international peacekeeping operations
be exempt from investigations or prosecutions by the ICC
in accordance with Article 16 of the Rome Statute for
a 12-month period beginning on July 1, 2003. The Security
Council further expressed its intention to renew the exemption
period each July 1st for further 12-month periods as long
as may be necessary.
The U.N. Security
Council observed that States not Party to the Rome Statute
will continue to fulfill their responsibilities in their
domestic jurisdictions in relation to international crimes.
The European Convention (The Secretariat): Final Draft
Constitution Treaty (June 12, 2003)
The delegates
of the European Convention agreed on a final version of
the Draft Constitution Treaty. The Presidium of the European
Convention had previously issued a Preliminary Draft Constitutional
Treaty in October 28, 2002 (seeILIB
summary of November 11, 2002).
Part I of the
final Draft contains nine Titles that address, inter
alia, the European Union’s objectives, its institutional
framework, its competence and finances. Part II of the
Draft integrates the Charter of Fundamental Human Rights
into the Constitution Treaty. Three Protocols are annexed
to the Draft Constitution: The Protocol on the Role of
the National Parliaments in the European Union, which
provides for greater involvement of national parliaments
in the activities of the European Union, the Protocol
on the Application of the Principles of Subsidiarity and
Proportionality, which establishes “the conditions
for the application of the principles of subsidiarity
and proportionality, as enshrined in Article I-9 of the
Constitution” and finally, the Protocol on the Representation
of Citizens in the European Parliament and the Weighting
of Votes in the Council.
Council of Europe (COE): Two Conventions to enter into
force shortly
The European
Convention on the Non-Applicability of Statutory Limitation
to Crimes Against Humanity and War Crimes, which was opened
for signature on January 25, 1974, will enter into force
on June 27, 2003. The Convention provides that no statute
of limitation shall apply to the prosecution of and the
enforcement of punishments imposed for violations of the
1948 Genocide Convention and the four 1949 Geneva Conventions.
Currently, three states have signed and ratified the Convention,
namely Belgium, the Netherlands and Romania.
On July 1, 2003,
Protocol No.13 to the Convention for the Protection of
Human Rights and Fundamental Freedoms, Concerning the
Abolition of the Death Penalty in all Circumstances will
enter into force. Protocol No.13 was opened for signature
on May 3, 2002. (SeeILIB summary of March 19, 2002).
Council of Europe (COE):
Protocol amending the European Convention on the Suppression
of Terrorism (May 15, 2003)
The Protocol was opened for signature to
all member states of the Council of Europe that are signatories
to the Convention on May 15, 2003. According to its Article
18, the Protocol will enter into force after ratification
by all parties to the Convention. The Protocol, inter
alia, extends the Convention’s list of offenses,
which shall not be regarded as political offenses for
the purpose of extradition and provides for a simplified
amendment procedure that allows for further additions
to the list of offenses.
International Law In Brief (ILIB) - Copyright 2003
- The American Society
of International Law (ASIL) Editors: Elisabeth Handl, Ruth Teitelbaum, and
Scott Smith
- ILIB is a free-of-charge electronic resource.
In order to sign up to receive ILIB, or to unsubscribe,
please follow instructions at http://web3.ags.com:81/guest/RemoteListSummary/ILIB
- Shortly after it is distributed over the ILIB list serve,
each ILIB issue is also available at the main ILIB web
page at http://www.asil.org/ilibindx.htm, or ILIB Archive at
http://www.asil.org/ilib/ilibarch.htm.
If you have any problems using web links contained in
ILIB, please consider using ILIB copies posted on one
of the previous web pages. Please note that web
links contained in ILIB are accurate as of the date of
publication of each ILIB issue, and we are not responsible
for their accuracy thereafter.
- Information on subscription procedure and rates for
International Legal Materials (ILM) are available
at http://www.asil.org/internati.htm
- For a working list of Internet resources assembled and
used by the ILM Office in compiling both ILM and ILIB,
please visit http://www.asil.org/ilmlinks.htm
- In order to sign up to receive ASIL Insights,
please follow instructions at http://www.asil.org/insights.htm
- For ASIL membership information, visit us on the Internet
at http://www.asil.org/member.htm
- To comment on this publication, send an e-mail message
to the ILM Managing Editor at rteitelbaum@asil.org
