International Law In Brief
November 30 - December 4, 1998
Developments in international law, prepared by the
Attorney-Editors of
International Legal Materials
The American Society of International Law
Judicial Decisions
International Criminal Tribunal for the former Yugoslavia: Prosecutor v. Delalic, Mucic, Delic, and Landzo, IT-96-21-T (Nov. 16, 1998)
The Trial Chamber handed down convictions against three Bosnian Muslims found directly or indirectly responsible for the unlawful confinement, torture, rape, and murder of Bosnian Serb civilians at the Celebici prison camp in central Bosnia from May through October 1992. Mr. Landzo, a guard at the camp, and Mr. Delic, the deputy camp commander, were charged with individual criminal responsibility pursuant to Article 7(1) of the Statute of the International Criminal Tribunal ("Statute"), as direct participants in certain of the crimes alleged. Mr. Mucic, the camp commander, and Mr. Delalic, an official of the War Presidency of the Konjic Municipality and the Bosnian Muslim armed forces with authority over the Celebici camp, were charged as superiors with responsibility, under Article 7(3) of the Statute, for crimes committed by their subordinates. paras. 3-5. Mr. Delalic was ultimately acquitted. para. 1285.
On the question of the nature of the conflict and the applicability of Articles 2 and 3 of the Statute, the Trial Chamber found that the fighting in the vicinity of Celebici constituted part of an international armed conflict. para. 234. This finding permitted the Trial Chamber to focus on the issue of whether the prisoners in the Celebici camp were "protected persons" within the meaning of the Fourth Geneva Convention, a question that turned on the respective nationalities of the captors and the prisoners. paras. 235-58. The Trial Chamber emphasized the necessity of a flexible approach to applying the Fourth Geneva Convention: "the provisions of domestic legislation on citizenship in a situation of violent State succession cannot be determinative of . . . protected status." para. 263. It concluded that the prisoners were "protected persons," since they were clearly regarded by the Bosnian authorities as belonging to the opposing party in an armed conflict and as posing a threat to the Bosnian State. paras. 274-275. In addition, Article 3 is applicable to each of the crimes charged on the basis that they also constitute violations of the laws or customs of war, substantively prohibited by common article 3 of the Geneva Conventions. para. 317.
Turning to the question of individual criminal responsibility under Articles 7(1) and 7(3) of the Statute, the Trial Chamber found that the principle of superior responsibility is applicable anywhere a superior has effective control, whether de facto or de jure, over the persons committing the underlying violations of international humanitarian law. para. 354. The Trial Chamber further shared the view of the International Law Commission that the doctrine of superior responsibility extends to civilian superiors as well, where they exercise a degree of control over their subordinates similar to that of military commanders. para. 378. A superior may possess the mens rea necessary to incur criminal liability where: (1) he had actual knowledge, established through direct or circumstantial evidence, that his subordinates were committing or about to commit crimes referred to under Articles 2 or 5 of the Statute, or (2) where he had information sufficient to put him on notice of the risk of such offenses, and indicating the need for additional investigation. para. 383. The Trial Chamber concluded that a superior should be held criminally responsible for failing to take measures "within his material possibility" to prevent illegal acts, and not merely those within his formal competence. para. 395.
The Trial Chamber may only impose imprisonment as a penalty, and bases its sentences on those provided by the laws of the former Yugoslavia. paras. 1191-94. For the crimes alleged, the Socialist Federal Republic of Yugoslavia allowed for either the death penalty (which the Trial Chamber is barred by statute from applying) or a maximum prison sentence of 20 years. para. 1195. The Trial Chamber imposed concurrent sentences with credit for time served. paras. 1286-87. Mucic received eleven consecutive seven-year sentences, reduced by two years, seven months, and 29 days for time served. paras. 1285-86. Delic received four consecutive twenty-year sentences, reduced by two years, six months, and fourteen days for time served. Id. Landzo received six consecutive fifteen-year sentences, also reduced by two years, seven months, and 29 days for time served. para. Id. CB
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http://www.un.org/icty/celebici/jugement/FinalJudge%20last%20one.pdf
Ninth Circuit: In re Brennan, No. 97-10387 (Nov. 17, 1998)
Brennan, Artt, and Kirby, Catholics from Northern Ireland, were convicted of criminal offenses by "Diplock" courts established by emergency legislation in the UK to try politically-motivated criminal offenses. The "Diplock" courts lack juries and utilize special procedures, including "significantly" relaxed evidentiary standards. Brennan, Artt, and Kirby escaped from Maze prison and were arrested in the U.S. They appealed the decision of the District Court to certify them for extradition to the U.K. pursuant to 18 U.S.C. sect. 3184 and the 1977 U.S.-U.K. Extradition Treaty as modified by the 1985 Supplementary Treaty.
Artt and Kirby asserted that their convictions were based on false, coerced confessions and were the result of anti-Catholic and anti-Republican bias in the Northern Ireland justice system. Article 3(a) of the 1985 Supplementary Treaty (the "Aquino clause" ) states that "extradition shall not occur if the person sought establishes...by a preponderance of the evidence that the request for extradiction has in fact been made with a view to try or punish him on account of his race, religion, nationality, or political opinions...." In a case of first impression, the Ninth Circuit held that under Article 3(a), the District Court erred limiting the scope of inquiry to evidence of prejudice in the appellant's individualized cases, rather than examining the appellant's claims of systemic bias. "Absent an opportunity to present more generalized evidence of bias, the defendant shoulders the impossible burden of identifying clear signs of individualized prejudice within the opaque procedures employed by the Northern Ireland justice system." The Ninth Circuit noted the use of statistical evidence by U.S. courts and held that "if a potential extraditee established prima facie that significant procedural abuses occurred before or during trial, he or she may present evidence of systemic [political or religious] bias within Northern Ireland's justice system within the relevant time period." DL
http://laws.findlaw.com/9th/9710386o.html
International Court of Justice: Fisheries Jurisdiction Case (Spain v. Canada) Jurisdiction of the Court (Dec. 4, 1998)
The International Court of Justice held by a vote of 12 to 5 that the Court has no jurisdiction to adjudicate the dispute between Spain and Canada regarding Canada's seizure of the Spanish ship Estai on the high seas on March 9, 1995 pursuant to Canada's amended Coastal Fisheries Protection Act. paras. 19, 35, 89. The Court recognized that on May 10, 1994, Canada submitted to the Secretary-General of the United Nations a new declaration of acceptance of the ICJ's compulsory jurisdiction over situations other than, inter alia, "disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area, as defined in the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such measures." para. 14. The Court stated that a new declaration of acceptance of compulsory jurisdiction containing additional reservations is a modification of a previous expression of consent which should not be interpreted restrictively, and which represents a "unilateral act of State soverignty." paras. 45-46.
The Court rejected Spain's assertion that the Canadian reservation should be considered inadmissible if interpreted as inconsistent with general international law, relying instead on a "natural and reasonable" interpretation of the terms of the reservation. paras. 53-54, 49. "Nowhere in the Court's case-law has it been suggested that interpretation in accordance with the legality under international law of the matters exempted from the jurisdiction of the Court is a rule that governs the interpretation of such reservations....The fact that a State may lack confidence as to the compatability of certain of its actions with international law does not operate as an exception to the principle of consent to the jurisdiction of the Court and the freedom to enter reservations." para. 54.
The Court considered the specific terms of the reservation, noting that the phrase "disputes arising out of or concerning" was broad and that the Canadian measures to amend the Coastal Fisheries Protection Act constituted "conservation and management measures." paras. 62-63, 72-73. Finally, the Court found that the authorized use of force under the amended Act to disable foreign fishing vessels is an "enforcement of such measures" since, according to the Act, the use of force is limited to the enforcement of fisheries conservation measures. para. 84. Consequently, the Court held that the dispute fell within Canada's reservation to its declaration of compulsory jurisdiction and therefore the Court did not have jurisdiction to decide the case on its merits. para. 87. CC/DL
http://www.icj-cij.org/idocket/iec/iecframe.htm
Reports and Other Documents
U.N. General Assembly Resolution 53/10 (Nov. 3, 1998) (Elimination of coercive economic measures as a means of political and economic compulsion)
The General Assembly urges States not to impose coercive economic measures unilaterally because of the severe impact such measures may have on the economy and free trade of the State against whom the sanctions are applied. The Assembly calls for the repeal of unilateral, extrraterritorial laws that impose such "sanctions on corporations and nationals of other States" and calls for States to cease applying or recognizing such unilateral measures. Finally, the Assembly requests the Secretary-General to report on the implementation of the resolution and decides to include this issue on its provisional agenda for the fifty-fifth session. EF
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http://www.un.org/Depts/dhl/resfiles/a53r010.pdf
News and Notes
The U.S. Information Agency reports that on November 25, 1998 Sweden passed legislation amending its intellectual property laws to give judges authority in civil cases to order unannounced searches of a defendant's property to preserve evidence of infringements of intellectual property rights. The legislation, intended to comply with the requirements of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), goes into effect on January 1, 1999.
http://www.usia.gov/products/washfile.htm
International Law In Brief - Copyright 1998 - The American Society of International Law
Editors: Elizabeth J. Fabrizio, David A. Levy
Interns: Chad Bierman, Carlos Calderin
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