Developments in international law, prepared by
the Editorial Staff of International Legal Materials
The American Society of International Law January 23, 2004
Agreement
between The United Nations and the Government of Guatemala
for the Establishment of a Commission for the Investigation
of Illegal Groups and Clandestine Security Organizations
in Guatemala (“CICIACS”) (January 7, 2004)
The United Nations and Guatemala
signed an agreement establishing a Commission for the
Investigation of Illegal Groups and Clandestine Security
Organizations in Guatemala (Comisión de Investigación
de Cuerpos Ilegales y Aparatos Clandestinos de Seguridad
en Guatamala) ("CICIACS").
The Agreement provides a set
of provisions to limit current criminal behavior by prosecuting
some cases, as well as to fortify Guatemala’s justice
system. Article 2 of the Agreement sets forth that CICIACS
shall have the power to investigate the structure and
activities of illegal groups and clandestine security
organizations. Further Article 2 provides that the Agreement
“shall, in particular, seek to identify: (a) persons
responsible for attacks perpetrated against human rights
defenders, justice sector professionals, witnesses, journalists
and labor and other social sector activists (b) connections
that may exist between these illegal associations and
agents of the State, organized crime and private security
forces as they adversely affect respect for human rights
in Guatemala pursuant to the objectives of this Agreement;
and (c) any other illegal activities which may constitute
transnational crimes...”.
Article 2.2 provides that
CICIACS shall have the power to initiate criminal prosecutions
and shall be invested with the legal status of private
prosecutor defined in Article 116 of the Guatemalan Code
of Criminal Procedure, of persons responsible for crimes
related to the activities described in Article 2.1 (a),
(b), (c) of this Agreement.
Article 6 of the Agreement
concerns the cooperation of the Government of Guatemala
with all organs of CICIACS as set forth in Article 5 of
the Agreement. The Government “shall respond without
delay to any request for assistance from CICIACS and shall
enforce compliance with any such request directed to officials
and employees of the State, and any other persons or entities
under its authority.”
The inviolability of premises
and documents as well as exemption from taxation are regulated
by provisions set forth in Article 10. The premises, property,
funds and assets of CICIACS, wherever located and by whomsoever
held, shall be immune from search, seizure, requisition,
confiscation, expropriation and any other form of interference,
whether by executive, administrative, judicial or legislative
action. Article 11 concerns privileges and immunities
of CICIACS personnel.
The Agreement shall enter
into force on the date on which the Government of Guatemala
formally notifies the United Nations that it has completed
its domestic approval and ratification procedures. Pursuant
to Article 14 of the Agreement it shall remain in force
for a period of two years and may be extended by written
agreement between the parties.
United States (U.S.) Court of Appeals for the Ninth
Circuit: Gherebi v. Bush and Rumsfeld(No.
03-55785 District Court No. V-03-01267-AHM)
The U.S. Court of Appeals
for the Ninth Circuit ("the Court of Appeals"
or the "Ninth Circuit") concluded that the United
States exercises sole jurisdiction and all of the basic
attributes of full territorial sovereignty over the Guantanamo
Bay naval base in Cuba. It held that under Johnson
v. Eisentrager, 339 U.S. 768 (1950), the U.S.
district courts may exercise jurisdiction over a habeas
corpus petition brought by the brother of one of the Guantanamo
Bay detainees, and remanded the case to the U.S. District
Court for the Central District of California.
Following the decision of
the Ninth Circuit dismissing a habeas petition for lack
of standing in Coalition of
Clergy v. Bush (See 42 ILM 393), Belaid
Gherebi ("Gherebi") filed an amended next-friend
habeas petition on behalf of his brother, Falen Gherebi.
Gherebi alleged violations of the U.S. Constitution and
the Third Geneva Convention arising out of his brother's
involuntary detention at Guantanamo naval base as an “unlawful
combatant,” and further claimed that the respondents
have denied him status as a prisoner of war, in addition
to rights under the United States Constitution, that they
have blocked his access to the U.S. courts, and that they
have denied him access to legal counsel. On May 13, 2003,
the U.S. District Court for the Central District of California
dismissed Gherebi's petition for lack of jurisdiction.
(See Gherebi v. Bush, No. CV 03-1267-AHM (JTL).
Gherebi then appealed to the Court of Appeals for the
Ninth Circuit, where he argued, inter alia, that
the district court erred in holding that Johnson
v. Eisentrager precludes U.S. district courts
from exercising jurisdiction over his petition.
The U.S. government did not
dispute that if Gherebi were being detained on U.S. territory,
jurisdiction over his habeas petition would lie, whether
or not he is an "enemy alien" or "enemy
combatant." The U.S. government argued that Gherebi's
petition was foreclosed byJohnson
v. Eisentrager because under Johnson, the
touchstone of the jurisdictional inquiry is sovereignty-rather
than mere territorial jurisdiction. The U.S. government
maintained that under the terms of the 1903 Lease Agreement
with Cuba and the 1934 Treaty continuing the agreement,
Cuba cedes to the United States "complete jurisdiction
and control" over the military base, while at the
same time recognizing "the continuance of ultimate
sovereignty" in Cuba.
The Ninth Circuit, while agreeing
with the U.S. government that the outcome of the jurisdictional
question depended on the legal status of the location
of Gherebi's detention, concluded that Johnson
does not hold that the prerequisite for the exercise of
jurisdiction is sovereignty rather than territorial
jurisdiction. The Ninth Circuit further observed:
"When the Johnson petitioners were detained
in Landsberg [Germany], the limited and shared authority
the U.S. exercised over the Prison on a temporary basis
nowhere approached the United States' potentially permanent
exercise of complete jurisdiction and control over Guantanamo,
including the right of eminent domain." The
Ninth Circuit held that although the Johnson court
referred to both territorial jurisdiction and sovereignty,
"the Court nowhere suggested that ‘sovereignty’
as opposed to 'territorial jurisdiction,' was a necessary
factor.”
Moreover, the Ninth Circuit
concluded that even if sovereignty were a deciding
factor in the Johnson decision, that the United States'
possession and control over Guantanamo results in an exercise
of all attributes of sovereignty, while Cuba retains only
a residual or reversionary sovereignty interest. The Ninth
Circuit further stated that the U.S. government has purposely
acted in a manner directly inconsistent with the Lease
and 1934 Treaty, for such instruments limit U.S. use of
the territory to a naval base and coaling station, while
the United States has used the naval base for "whatever
purpose it deemed necessary or desirable," including
using the naval base for refugee housing. The Ninth Circuit
found that with respect to Guantanamo, U.S. sovereignty
has been acquired by its possession of the area and its
intent on enforcing its right to use the territory it
occupies without regard to any limitations. The Ninth
Circuit noted the Black's Law Dictionary definition of
sovereignty including "the power to do everything
in a state without accountability" in support of
its conclusion.
Israel
Supreme Court: Hmoked: Center for the Defense of the
Individual v. State of Israel et. al., HCJ 9733/03
(December 1, 2003)
The Supreme Court of Israel
issued an order Nisi requesting the state authorities
of Israel to show cause, within 45 days, for refusing
to reveal the location of a secret detention facility
known as "Facility 1391." The petitioner originally
brought two habeas corpus petitions of three detainees
who disappeared from their homes in the Occupied Palestinian
Territories, however these petitions were dismissed after
the detained persons were transferred to a non-secret
facility. Hmoked-Center for the Defense of the Individual
("Hmoked") then brought this petition challenging
the legality of the secret detention center. The petitioner
alleged that the facility, the location of which is unknown,
was holding detainees in violation of Article 23 of the
Geneva Convention Relative to the Treatment of Prisoners
of War, 1949 (the Third Geneva Convention), which provides
that "Detaining Powers shall give the Powers concerned,
through the intermediary of the Protecting Powers, all
useful information regarding the geographical location
of prisoner of war camps." The petitioner further
alleged that the detainees were mistreated and subject
to unlawful methods of interrogation.
The Supreme Court noted that
the petitioner had not exhausted the procedure of directing
specific complaints to the authorities in question, and
directed the petitioner to submit its complaints to the
Department of Investigations of Complaints Concerning
General Security Service (GSS) and to the Chief Military
Attorney, finding that after receiving answers from these
authorities, the petitioner may return to the court.
World Trade
Organization (WTO) Appellate Body Report: United States-Final
Countervailing Duty Determination with Respect to Certain
Softwood Lumber from Canada(WT/DS257/AB/R)(January 19, 2004)
The WTO
Appellate Body upheld an earlier Panel decision finding
that Canada's stumpage programs for the harvest of timber
constituted a countervailable subsidy and were inconsistent
with the Agreement on Subsidies and Countervailing Measures
(SCM Agreement) under the WTO rules. In addition, the
Appellate Body held that the Panel erred in finding that
the U.S. Commerce Department's methodology was inconsistent
with Article 14(d) of the SCM Agreement.
The United States argued that the stumpage programs allowed Canadian
companies to harvest lumber at artificially low prices,
resulting in an unfair competitive advantage over U.S.
lumber companies. The United States requested the Appellate
Body to reverse the Panel's findings that Article 14(d)
of the SCM Agreement required the United States to use
private timber prices in Canada in order to determine
the adequacy of remuneration for government-provided timber.
The Appellate Body reversed
the Panel's findings with respect to Article 14(d) of
the SCM Agreement and found that the U.S. Department of
Commerce was entitled to use a benchmark other than private
prices in Canada, given that the United States had established
that the private prices of the goods in Canada were distorted
as a result of the Canadian government's predominant role
in this market. However the Appellate Body upheld part
of the Panel's decision finding that the U.S. Commerce
Department needed to conduct more extensive pass-through
analysis regarding arm's length sales of lumber in order
to show that the benefit conferred by a financial contribution
directly on producers is passed through to producers of
the processed product.
European
Court of Human Rights (ECHR): Sadik Önder v. Turkey
(Case No. 28520/95) (January 8, 2004)
The European Court of Human
Rights ("the Court") found unanimously that
there was a violation of Article 3 of the Convention for
the Protection of Human Rights and Fundamental Freedoms
for failure to carry out an effective investigation into
allegations of police torture.
The Application was submitted
by Mr. Sadik Önder, a Turkish national, born in 1969 and
living in Istanbul. On August 28, 1995 Mr. Önder lodged
the application against the Republic of Turkey with the
European Commission of Human Rights under Article 25 of
the Convention.
On July 9, 1994 Mr. Önder
with fourteen others was taken into police custody by
the Anti-Terror branch of the Istanbul Security Directorate
on suspicion of being a member of the PKK (Kurdistan Workers
Party).
Mr. Önder alleged that he
was ill-treated and tortured in the police car on the
way to the Istanbul Security Directorate and during his
detention there. Mr. Önder further claimed that he was
coerced into signing a statement in which it was stated
that he worked and had been involved in the terrorist
activities of the PKK. Mr. Önder claims that he told the
State Security Court Judge that he was tortured in police
custody and that he had explained this to the Public Prosecutor
at the State Security Court. The case files show that
Mr. Önder did not claim to have been mistreated neither
before the Public Prosecutor nor the State Security Court.
On July 22, 1994 Mr. Önder
was examined by a doctor at the Istanbul Forensic Medical
Department. The doctor did not find any signs of ill-treatment.
However the Chamber of Medicine in Istanbul later found
that the doctor had concealed signs of torture in the
medical examinations conducted on several persons. Mr.
Önder underwent another medical examination on his own
request. The medical record recorded no signs of traumatic
lesions. Mr. Önder also filed a complaint with the
Istanbul Public Prosecutor’s Office. The Istanbul
Public Prosecutor decided not to prosecute on account
of lack of evidence.
The Court noted that a number
of facts raised doubts as to whether Mr. Önder suffered
treatment prohibited by Article 3, and concluded that
the allegation of mistreatment must be supported by the
appropriate evidence (mutatis mutandis, Klaas
v. Germany). The Court considered that there was insufficient
evidence for it to conclude that there had been a violation
of Article 3 on account of the alleged torture, although
it found a violation of Article 3 on the ground that no
effective official investigation into allegations of ill-treatment
was held by Turkish officials.
The Court
unanimously decided that Turkey is to pay the applicant,
within three months from the date on which the judgment
becomes final according to Article 44 § 2 of the Convention
(i) EUR 5,000 in respect of non-pecuniary damage and (ii)
EUR 2,500 in respect of costs and expenses. It dismissed
the remainder of the applicant’s claim for just
satisfaction.
Protocol
to the African Charter on Human and Peoples’ Rights
on the Establishment of an African Court on Human and
Peoples’ Rights (December 30, 2003)
The Union of Comoros became
the 15th Member State of the African Union
to deposit the instrument of ratification to the Protocol
to the African Charter on Human and Peoples’ Rights
on the Establishment of an African Court on Human and
Peoples’ Rights (“the Protocol”). The
ratification of the instrument by the Union of Comoros
results in a majority of ratifications required for its
entry into force.
The Protocol established,
within the Organization of African Unity, an African Court
on Human and Peoples’ Rights (“the Court”)
to attain the objectives of the African Charter on Human
and Peoples’ Rights and to complement and reinforce
the functions of the African Commission on Human and Peoples
Rights (“the Commission”). The Court “will
address the need to build a just, united and peaceful
Continent free from fear, want and ignorance. Furthermore,
the Court will enhance the African Union’s commitment
to the realisation of human rights and fundamental values
of tolerance, solidarity, gender equality, and humanitarian
action on the Continent.”
Article 2 of the Protocol
concerns the relationship between the Court and the Commission.
The jurisdiction of the Court, regulated in Article 3
of the Protocol, shall extend to all cases and disputes
submitted to it concerning the interpretation and application
of the African Charter on Human and Peoples’ Rights,
this Protocol and any other relevant Human Rights instrument
ratified by the States concerned.
Access to the Court is regulated
by provisions set forth in Article 5 of the Protocol.
According to Article 5 of the Protocol the following groups
are entitled to submit cases to the Court: (a) the Commission;
(b) the State Party which has lodged a complaint to the
Commission; (c) the State Party against which the complaint
has been lodged at the Commission; (d) the State Party
whose citizen is a victim of human rights violations and
(e) African Intergovernmental Organizations. Non Governmental
Organizations (“NGO”) may be given observer
status before the Commission.
Articles 11 through 23 set
forth provisions regarding the composition of the Court,
nominations and elections of judges.
Article 34 of the Protocol
contains provisions concerning ratification. The Protocol
shall be open for signature and ratification or accession
by any State Party to the Charter. Further Article 34
(3) states that “the Protocol shall come into force
thirty days after fifteen instruments of ratification
or accession have been deposited.”
