International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
October 9, 2001
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TREATIES, AGREEMENTS AND RELATED DOCUMENTS JUDICIAL AND SIMILAR PROCEEDINGS
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- Inter-American Court of Human Rights: Barrios Altos Case (Chumbipuma Aguirre et al. Versus Peru), (March 14, 2001)
- International Criminal Tribunal for the Former Yugoslavia (ICTY): Prosecutor v. Krstic, Case No.: IT-98-33-T (August 2, 2001)
- U.S. Court of Appeals for the Ninth Circuit: Alvarez-Machain v. U.S., No. 99-56762 (September 11, 2001)
TREATIES, AGREEMENTS AND RELATED DOCUMENTS
Organization of American States (OAS): Inter-American Democratic Charter, AG/doc.8 9HHVIII-E/01 (September 6, 2001)
The OAS Foreign Ministers at their meeting in Lima, Peru, adopted the Inter-American Democratic Charter ("Charter"), declaring that the peoples of the Americas had a right to democracy and their governments had an obligation to promote and defend it. The Charter notes that democracy is essential for the social, political and economic development of the peoples of the Americas. The Charter also notes that the effective exercise of representative democracy is the basis for the rule of law and of the constitutional regimes of the OAS member states.
The Charter provides that an unconstitutional interruption or alternation of a member state's democratic regime and constitutional order constitutes an "insurmountable obstacle" to its government's participation in the work of the OAS bodies. In case of such an unconstitutional alternation of a member state's constitutional regime that "seriously impairs [its] democratic order," the OAS Permanent Council, upon the convocation by any OAS member state, should assess the situation and make appropriate decisions, including those providing for diplomatic initiatives such as good offices. If diplomatic initiatives fail, the Charter empowers the OAS General Assembly to suspend, by an affirmative vote of two thirds, the member state in question from participation in the OAS. The suspended member should, nevertheless, continue to fulfill its obligations to the OAS - and especially with respect to human rights. BM
Document available at http://www.oas.org
JUDICIAL AND RELATED DOCUMENTS
Inter-American Court of Human Rights: Barrios Altos Case (Chumbipuma Aguirre et al. v. Peru) (March 14, 2001)
The Inter-American Court of Human Rights ("Court") accepted Peru's recognition of "international responsibility" for the violation of rights to life, humane treatment, and fair trial and judicial protection guaranteed under the American Convention on Human Rights ("Convention") in the case of a street execution of fifteen people and wounding of four others that took place in 1991 in Lima's neighborhood of Barrios Altos. The judicial investigation into the crime did not begin until 1995 and was eventually terminated after the Congress of Peru issued two amnesty laws that inter alia "exonerated . . . from responsibility" members of the army, police force and civilians who had violated human rights or taken part in such violations from 1980 to 1995.
During the course of the proceedings before the Court, Peru declared its intention to withdraw recognition of the Court's contentious jurisdiction. The Court rejected this declaration as "inadmissable" and being in violation of the "basic principle pacta sunt servanda." However, Peru later submitted to the Court that it recognized its international responsibility, and that it would "initiate a friendly settlement procedure" with the Inter-American Commission on Human Rights and the petitioners in the case. The Court held that it would evaluate the agreement reached by the parties, and that in case the agreement is not reached within three months from the date of the notification of the judgment, it would determine the scope and amount of the reparations. The Court concluded that self-amnesty laws are "manifestly incompatible" with the aims and spirit of the Convention because they "lead to the defenselessness of victims and perpetuate impunity." BM
Document was provided in hard copy by the Organization of American States (OAS).
International Criminal Tribunal for the Former Yugoslavia (ICTY): Prosecutor v. Krstic, Case No.: IT-98-33-T (August 2, 2001)
An ICTY Trial Chamber rendered the first genocide conviction in the Tribunal's history in the case against Mr. Radislav Krstic, a general of the Army of the Republika Srpska and a former Drina Corps commander, for his involvement in the military campaign in and around Srebrenica where up to 8000 adult Bosnian Muslim men were executed in July 1995. General Krstic was also found guilty of persecution for murders, cruel and inhumane treatment, terrorising the civilian population, forcible transfer and destruction of personal property of Bosnian Muslim civilians, and murder as a violation of the laws and customs of war. The Trial Chamber sentenced General Krstic to forty-six years of imprisonment.
The Trial Chamber found that the Bosnian Serb forces "effectively destroyed" the community of the Bosnian Muslims in Srebrenica and eliminated all likelihood that it could ever reestablish itself on that territory. The Trial Chamber concluded that these acts must be qualified as genocide, per Article 4 of the ICTY Statute, because they incorporated the "intent to kill . . . in part" the Bosnian Muslim group.
As to the General Krstic's individual responsibility, the Trial Chamber held that he exercised "'effective control'" over Drina Corps troops and assets at the material time and throughout the territory on which the detentions, executions and burials of victims were taking place. The Trial Chamber further held that General Krstic "shared the genocidal intent to kill the men," and participated in a "joint criminal enterprise" because he was aware that the killings of the military-aged Bosnian Muslim men of Srebrenica would lead to annihilation of the entire Bosnian Muslim community at Srebrenica. Finally, the Trial Chamber concluded that although General Krstic did not conceive the plan to kill the men, he fulfilled a "key coordinating role" in implementing the killing campaign and thus must be considered a principal perpetrator of the crimes. BM
Document available at http://www.un.org/icty/krstic/TrialC1/judgement/krs-tj010802e.pdf
U.S. Court of Appeals for the Ninth Circuit: Alvarez-Machain v. U.S., No. 99-56762 (September 11, 2001)
The U.S. Court of Appeals for the Ninth Circuit ("Ninth Circuit") reaffirmed that Mr. Humberto Alvarez-Machain's ("Alvarez") forcible abduction from Mexico to the U.S., where he was immediately arrested by the U.S. Drug Enforcement Agency ("DEA"), had been in the violation of the "'law of nations'." The Ninth Circuit also reaffirmed that the U.S. federal common law, instead of Mexican law, should be applicable in determining the amount of damages to be awarded to Alvarez.
In 1990, Mr. Alvarez, a Mexican citizen, was arrested pursuant to an U.S. arrest warrant after he had been forcibly abducted from Mexico by a group of Mexican nationals who had been employed by the DEA for this purpose. Mr. Alvarez had been later acquitted and he returned to Mexico. In the current proceedings, Mr. Alvarez argued that the U.S., DEA agents, and those Mexican citizens involved in his abduction should be held responsible for inter alia: kidnaping; arbitrary detention; and false arrest and imprisonment.
The Ninth Circuit held that although no international human rights instruments referred to transborder abduction specifically, various "established international human rights norms," such as the right to freedom of movement or right to remain in one's country, encompassed it. The Ninth Circuit also held that Alvarez's seizure violated the international customary legal norm against arbitrary detention because there was no Mexican warrant or any lawful authority for his arrest. The Ninth Circuit ruled in favor of the application of the U.S. federal common law on damages as "stronger," and therefore working in favor of enhancing the policies "underlying international human rights law." BM
Document available at http://caselaw.lp.findlaw.com/data2/circs/9th/9956762p.pdf
LEGISLATION AND REGULATION
Permanent Court of Arbitration (PCA): Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment (June 19, 2001)
The PCA, at an Extraordinary Meeting of its Member States, adopted the Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment ("Rules"). According to the PCA, the Rules are the first of this kind relating to the resolution of controversies concerning environmental protection or conservation of natural resources.
The Rules provide that, unless the parties to an arbitration have otherwise agreed, the arbitral tribunal may take "any interim measures" it deems necessary, including provisional orders with respect to the subject matter of the dispute, to inter alia prevent "serious harm to the environment." The Rules further provide that such interim measures may be established in the form of an interim award, and that the Tribunal may require appropriate security for such measures.
The Rules allow the parties to an arbitration to appoint arbitrators who are not members of the PCA. The Rules oblige the PCA Secretary-General to provide, for the "purpose of assisting the parties," a list of persons considered to have expertise in the subject matters of a dispute at hand. BM
Document available at http://www.pca-cpa.org/PDF/ENRrules.PDF
REPORTS AND OTHER DOCUMENTS
U.N. Security Council: Resolution 1366 (On the U.N. Security Council Role in Prevention of Armed Conflicts), S/RES/1366 (2001) (August 30, 2001)
The U.N. Security Council ("Council") expressed its commitment to take "early and effective" action to prevent armed conflict, by employing "all appropriate means at its disposal" including, with the consent of the receiving States, its missions to areas of potential conflict. As part of a conflict prevention strategy, the Council stressed the importance of including inter alia "civilian police" in peacekeeping operations on a case-by-case basis, to facilitate a "smooth transition" to the post-conflict peace-building phase and ultimate conclusion of the mission. In the context of peace-building, the Council emphasized the particular importance of rehabilitating child soldiers. The Council acknowledged "the lessons to be learned for all concerned" from failure of preventive efforts that preceded tragedies such as the genocide in Rwanda and the massacre in Srebrenica (Bosnia and Herzegovina). BM
Document available at http://www.un.org/Docs/scres/2001/res1366e.pdf
BRIEFLY NOTED
On September 13, 2001 a Chamber of the Second Section of the European Court of Human Rights (ECHR) declared partly admissible the application of the son of Umberto II, the last king of Italy and the head of the House of Savoy, who inter alia complained that he has been banned from entering and stying in Italy by the Italian Constitution. The Court's press release can be found at http://www.echr.coe.int/Eng/Press/2001/Sep/DecisiondeSavoieepresse.htm.
On October 2, 2001, the International Criminal Tribunal for the Former Yugoslavia (ICTY) unsealed the indictment for the alleged crimes committed during the siege of Dubrovnik, Croatia, which took place in 1991/92. For more information see the indictment at http://www.un.org/icty/indictment/english/str-ii010227e.htm.
International Law In Brief - Copyright 2001 - The American Society of International Law
Editors: Kaysie Clemmons, Branislav A. Maric