International Law in Brief

International Law In Brief

May 13-19, 2000
Developments in international law, prepared by the
Attorney-Editors of International Legal Materials
The American Society of International Law

Judicial and Other Decisions

ECHR: Case of Denmark v. Turkey (Friendly Settlement), No. 34382/97 (April 5, 2000)

Mr. Kemal Koc, a Danish citizen, was arrested and detained by police during a visit to Turkey, and was subjected to interrogation techniques involving torture and other forms of ill-treatment. Para. 14. Denmark requested the European Court of Human Rights ("Court") to examine Mr. Koc's treatment, as well as whether "the interrogation techniques applied to [Mr. Koc] are applied in Turkey as a widespread practice." Paras. 2, 20. Denmark referred in its request to reports produced by, inter alia: the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; the U.N. Committee on Torture; the U.N. Committee on Human Rights; Amnesty International; and Human Rights Watch. Para. 20.

On March 31, 2000 the Court received: 1) a joint declaration by the parties; and 2) a separate declaration by the Government of Turkey, the pair constituting a friendly settlement. Para. 21.

In the joint declaration, Turkey agreed ex gratia to pay Denmark 450,000 Danish kroner, which included related legal expenses. Id., Decl. Para. 1. Denmark for its part appreciated "the acknowledgment and regret expressed by [Turkey] concerning occasional and individual cases of torture and ill-treatment in Turkey," and welcomed the steps taken by Turkey to combat such treatment since the filing of the application in 1997. Id., Decl. Paras. 3-4. Denmark and Turkey agreed that the use of inappropriate police interrogation techniques constitutes a violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and that such techniques shall be prevented in the future. Id., Decl. Para. 5.

The parties recognized that such an aim could best be achieved through training, and Denmark noted with satisfaction Turkey's voluntary participation in an open-ended Council of Europe project to reorganize the content of police training in member countries. Id. Denmark pledged to finance a bilateral project with Turkey that would, subject to agreement between the parties, provide Turkish police officers with further knowledge and practical skills in the field of human rights. Id.

In its separate declaration, Turkey regretted "the occurrence of occasional and individual cases of torture and ill-treatment despite the resolute action of the Government and existing legislation as well as administrative regulations." Para. 21. Turkey affirmed that both the Turkish Penal Code and the 1998 Regulation on Apprehension, Custody and Interrogation had been amended to redefine and prevent torture and ill-treatment in accordance with international conventions, including: 1) the Convention for the Protection of Torture and Inhuman or Degrading Treatment or Punishment; and 2) the European Convention for the Prevention of Torture. Id. Turkey noted that its officials are authorized to implement the Regulation through random controls and inspections, (id.), and that domestic reporting requirements have been instituted for such controls and inspections. Id.

Turkey further noted that the Law on the Prosecution of Civil Servants and Other Officials, which facilitates the investigation and prosecution of public officials, was approved by the Turkish Parliament on December 2, 1999 and had entered into force. Id.. Turkey declared that it would undertake further improvements in the field of human rights, and would continue to cooperate with international organs and mechanisms contained in international human rights instruments to which Turkey is a party. Id.

The Court for these reasons struck the case from the list. Holding 1. BM

Archived at http://www.echr.coe.int/eng/Judgments.htm

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U.S. Fourth Circuit Court of Appeals: Al Fayed v. United States, No. 99-1268 (April 26, 2000)

Seeking information relating to his son's death in a Paris car crash, Mr. Al Fayed in February 1999 requested a subpoena duces tecum from the U.S. District Court for the District of Maryland to compel production of relevant documents by the U.S. National Security Agency ("NSA"). Mr. Al Fayed applied under 28 U.S.C. Sect. 1782(a) ("Section 1782"), which authorizes U.S. district courts, at the request of an "interested person," to order document production for use in foreign or international tribunal proceedings.

The District Court accepted that Mr. Al Fayed met the criteria of Section 1782 as an "interested person" in French investigative proceedings, but denied the request as an attempt "to make an end run around FOIA." The District Court noted in its holding the NSA's earlier finding that "disclosure [of certain such documents] could reasonably be expected to cause exceptionally grave damage to the national security." On appeal, the U.S. Fourth Circuit Court of Appeals ("Fourth Circuit") affirmed, finding that the District Court did not abuse its "wide discretion" in responding to such a request.

The Fourth Circuit noted that Congress's "twin aims" in enacting Section 1782 were: 1) to provide an efficient means for federal courts to assist participants in international litigation; and 2) to encourage foreign countries by example to provide similar means of assistance to U.S. courts. The Fourth Circuit noted that Mr. Al Fayed's application did not make clear how the information sought would assist Mr. Al Fayed's "participation" in the French proceedings. The Court found also that a subpoena for highly classified documents would not plausibly set an encouraging example for foreign governments to similarly assist U.S. courts.

The Court further noted that private parties typically gain access to U.S. government documents through FOIA, and that Section 1782 is typically utilized: 1) by foreign judicial officials; 2) occasionally by prosecutors, plaintiffs and defendants in foreign judicial proceedings; and 3) "almost never . . . by persons in Al Fayed's position."

The Fourth Circuit declined to rule on the U.S. Government's argument that, on the basis of sovereign immunity and statutory construction, the U.S. is not a "person" from whom testimony can be required under Section 1782. The Fourth Circuit noted, however, that in an unsuccessful petition by Mr. Al Fayed to the U.S. District Court for the District of Columbia that court had upheld the government's argument. MB

http://laws.findlaw.com/4th/991268p.html

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Reports and Other Documents

U.N. Security Council: Resolution 1296 (On the Protection of Civilians in Armed Conflict) (April 19, 2000)

The U.N. Security Council ("Council") expressed regret that civilians account for the vast majority of armed conflict casualties, and are increasingly targeted by combatants and armed elements. Preamble. The Council emphasized the need, when considering ways to protect civilians in an armed conflict, to: 1) proceed on a case-by-case basis; and 2) take into account the particular circumstances of the situation. Para. 1.

The Council expressed its intention to collaborate with relevant regional and subregional organizations to further improve opportunities for the resolution of armed conflicts and the protection of civilians therein. Para. 7. The Council expressed its further intention to call upon conflicting parties to make special arrangements to protect and assist women, children, and other vulnerable groups, including through "days of immunization" and other opportunities to provide safe and unhindered delivery of basic necessary services. Para. 10.

The Council also intends to ensure that, where appropriate and feasible, peacekeeping missions shall be given suitable mandates and adequate resources to protect civilians under imminent threat of physical danger, including by "strengthening the ability of the United Nations to plan and rapidly deploy peacekeeping personnel, civilian police, civil administrators, and humanitarian personnel, utilizing the stand-by arrangements as appropriate." Para. 13. The Council intends, on a case-by-case basis, to include in the mandates of U.N. peacekeeping operations clear terms for: 1) activities related to the disarmament, demobilization and reintegration of ex-combatants, including child soldiers; and 2) the safe and timely disposal of surplus arms and ammunition. Para. 16.

When authorizing missions, the Council shall be willing, where appropriate in authorizing missions, to consider steps "in response to media broadcasts inciting genocide, crimes against humanity and serious violations of international humanitarian law." Para. 17. The Council affirmed that, where appropriate, peacekeeping missions should "include a mass-media component that can disseminate information about international humanitarian law and human rights law," as well as provide objective information regarding U.N. activities. Para. 18. BM

Archived in PDF format at http://www.un.org/Docs/scres/2000/res1296e.pdf

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International Law In Brief - Copyright 2000 - The American Society of International Law
Editor:  Peter C. Hansen, Esq., Branislav A. Maric
Interns:  Matthew Brinton