International Law in Brief

International Law In Brief

Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
May 21, 2003

JUDICIAL AND SIMILAR PROCEEDINGS

LEGISLATION AND REGULATION

BRIEFLY NOTED

JUDICIAL AND RELATED DOCUMENTS

United States (U.S.) Court of Appeals for the Second Circuit: United States v. Yousef et al., Nos. 98-1041, 98-1197, 98-1355, 98-1544, 98-1554 (April 4, 2003)

The facts of the case concern the 1993 bombing of the World Trade Center in New York City and a subsequent conspiracy to bomb U.S. airlines in Southeast Asia. In 1995, Ramzi Yousef (?Yousef?) was captured in Pakistan, Eyad Ismoil (?Ismoil?) was arrested in Jordan, and Abdul Hakin Murad (?Murad?) and others were arrested in the Philippines. The defendants were returned to the United States to answer various charges filed by a grand jury in the Southern District of New York in 1996 concerning their alleged involvement in the two incidents. Following trial, the defendants Yousef and Ismoil were sentenced to a total of 240 years of imprisonment, and Murad was sentenced to life imprisonment plus two 30 year sentences.

The defendants raised several issues on appeal, including a challenge to the extraterritorial jurisdiction asserted for charges related to the aircraft bombing conspiracy in Southeast Asia by defendant, Yousef. Yousef asserted that several of his charges should be dismissed because 18 U.S.C.§32 could not be applied to conduct outside the United States, and further argued that he could not be convicted under one of his conspiracy charges because he was not ?found? within the United States as required by 18 U.S.C. §32(b). In addition, Yousef contended that his prosecution violated customary international law which limited a nation?s ability to regulate conduct outside its borders.

The Second Circuit held that the language of 18 U.S.C. §32 clearly provided for the enforcement of U.S. laws beyond its borders, and observed that 18 U.S.C. §32 was adopted pursuant to the United States? obligations under the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, (?The Montreal Convention?) Moreover, the Second Circuit found that the purpose of the Montreal Convention was ?to ensure that individuals who attack airlines cannot take refuge in a country because its courts lack jurisdiction over someone who committed such an act against a foreign-flag airline in another nation. ... Accordingly, the Convention requires States parties to adopt legislation to assert jurisdiction over such an offender whenever an offender is ?present in? the State and the State does not extradite the offender to another State party.? The Second Circuit rejected Yousef?s argument that the plain meaning of ?found? in 18 U.S.C. §32 prevented the United States from asserting jurisdiction over someone brought to the United States against his will. The Second Circuit held that if someone arrested and brought to the United States could not fit the definition of ?found in the United States? under 18 U.S.C. §32(b), the result would defeat the purpose of the statute and its implementation of the Montreal Convention.

In regard to the defendants? challenge based on customary international law, the Second Circuit affirmed the substance of the District Court ruling, but found that the District Court erred in basing the exercise of jurisdiction on the universality principle of customary international law. The Second Circuit observed that there was no universality-based principle of jurisdiction under customary international law over terrorist acts. The Second Circuit nonetheless found that the absence of a customary principle of universal jurisdiction over terrorist acts did not preclude prosecution of the defendants under U.S. law that was adopted pursuant to obligations under the Montreal Convention.

Click here for the decision.

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United States (U.S.) Supreme Court: Dole Food Co. et al. v. Patrickson et al., No. 01-593 (April 22, 2003)

The Supreme Court denied the petitioners? writ of certiori, holding that ?a foreign state must itself own a majority of a corporation?s shares if the corporation is to be deemed an instrumentality under the [Foreign Sovereign Immunities Act], and that instrumentality status is determined at the time the suit is filed.

In 1997 by a group of farm workers from Latin America brought an action in state court in Hawaii against Dole Food company and others (?Dole?) claiming injury from exposure to dibromochloropropane (?DBCP?), a chemical used as agricultural pesticide in their home countries in Latin America. Dole impleaded Dead Sea Bromine Co., Ltd, (?Dead Sea Companies?), alleged by the plaintiffs to have manufactured some of the DBCP used in their home countries. In addition, Dole removed to federal court on claiming as a basis for federal question jurisdiction derived the federal common law of foreign relations. The Dead Sea Companies sought removal based on their argument that they were instrumentalities of a foreign state as defined by the Foreign Sovereign Immunities Act.(?FSIA?) The District Court dismissed Dole?s removal petition on forum non conveniens grounds. As for the Dead Sea Companies, it held that they were not instrumentalities of a foreign state as defined by the FSIA, and were not entitled to removal on that basis.


The Court of Appeals held that Dole?s removal could not rest on the federal common law of foreign relations and dismissed Dole?s appeal. As for the Dead Sea Companies, the Court of Appeals held that they were not instrumentalities of Israel, and declined to answer the question of whether status of an instrumentality was to be determined at the time of the alleged wrongdoing or at the time of filing of a suit. The Supreme Court dismissed Dole?s writ of certiori (No. 01-593).

The issues before the Supreme Court therefore concerned the Dead Sea Companies, namely 1) whether the Dead Sea Companies could claim instrumentality status even though they were only subsidiaries of a parent company owned by Israel and 2) whether, for the purposes of protection under the FSIA, instrumentality status is determined as of the time the alleged tort occurred, or at the initiation of the lawsuit.

The Supreme Court noted that Israel did not have direct ownership of shares in either of the Dead Sea Companies, since the companies were separated by one or more intermediate corporate tiers. It disagreed with the Dead Sea Companies? argument that the exercise of control could be substituted for ownership, and observed that section 1603 of the FSIA clearly indicated observance of corporate formalities, and in particular, refers to ownership of shares.

As to the second issue, the Dead Sea Companies argued that the FSIA, like other status-based immunities provided immunity based on the status of the officer at the time of the conduct giving rise to the suit. The Supreme Court disagreed with this comparison, noting that unlike immunity for government officers, ?foreign sovereign immunity, by contrast, is not meant to avoid chilling foreign states or their instrumentalities in the conduct of their business but to give foreign states and their instrumentalities some protection from the inconvenience of a suit as a gesture of comity between the United States and their sovereigns.? The Supreme Court further held that any relationship between the Dead Sea Companies and Israel had ended prior to the initiation of the lawsuit, and that the Dead Sea Companies could not claim instrumentality status under the FSIA.

Click here for the decision.

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NAFTA Arbitral Tribunal (ICSID Additional Facility Rules): Feldman v. Mexico (Award), Case No. ARB(AF)/99/1 (December 16, 2002)

The Tribunal held that Mexico was in violation of the national treatment provisions of NAFTA Article 1102, but found that its actions were not measures tantamount to expropriation in violation of NAFTA Article 1110.

The facts of the case involve a dispute regarding Mexico?s taxation on the export of tobacco products by ?CEMSA? a company organized under the laws of Mexico and owned and controlled by the Claimant, Mr. Marvin Roy Feldman Karpa, a U.S. national. (?the Claimant?). CEMSA began exporting cigarettes in 1990, and received rebates on cigarette exports until 1991, when Mexico passed legislation (the ?IEPS?) which limited rebates on exports to producers and bottlers. The IEPS was amended in 1992 to allow rebates to all cigarette exporters, including CEMSA, however in 1993, Mexican authorities denied CEMSA?s rebates once again due to its inability to meet invoice requirements under the amended IEPS law. In 1993, Mexico?s Supreme Court of Justice ruled in favor of CEMSA and held that ?measures allowing IEPS rebates only to producers and their distributors violated principles of tax equity and non-discrimination.? In December 1997, the IEPS law was amended again, limiting rebates to the ?first sale? of cigarettes in Mexico, thereby barring rebates to cigarette sellers such as CEMSA. CEMSA was also refused registration as an authorized exporter of cigarettes and alcoholic beverages.

The Claimant argued, inter alia, that Mexico?s refusal to allow CEMSA to obtain rebates on taxes was tantamount to expropriation and constituted a denial of justice in violation of international law and in violation of NAFTA Article 1110. The Claimant also asserted that Mexican firms engaged in similar resale of cigarettes were nonetheless allowed to obtain rebates on taxes, notwithstanding their similar inability to produce the invoices required under the IEPS. According to the Claimant, such a discrepancy resulted in a breach of Mexico?s obligations under Article 1102 to the extent that Mexico treated the Claimant less favorably than Mexican cigarette exporters in similar circumstances.

The Tribunal looked to customary international law and previous NAFTA Chapter Eleven decisions in resolving the question of whether Mexico?s acts resulted in measures tantamount to expropriation under international law. The Tribunal listed four factors which, ?taken together, tip the expropriation/regulation balance away from finding expropriation? namely: ?(1) As Azininan suggests, not every business problem experienced by a foreign investor is an expropriation under Article 1110; (2) NAFTA and principles of customary international law do not require a state to permit ?gray market? exports of cigarettes; (3) at no relevant time has the IEPS law, as written, afforded Mexican cigarette resellers such as CEMSA a ?right? to export cigarettes (due primarily to technical/legal requirements for invoices stating tax amounts separately and to their status as non-taxpayers); and (4) the Claimant?s ?investment?, the exporting business known as CEMSA, as far as this Tribunal can determine, remains under the complete control of the Claimant, in business with the apparent right to engage in the exportation of [...]?any product that it can purchase upon receipt of invoices stating the tax amounts?and to receive rebates of any applicable taxes under the IEPS law.?

The Tribunal again cited the Azinian decision with regard to the denial of justice claim, noting that like Azinian, the Claimant here contended that the denial of justice resulted from actions of administrative authorities rather than Mexican courts. The Tribunal held that the Claimant?s allegations did not meet the test for denial of justice, since the Mexican courts and administrative procedures were always available to the Claimant. The Tribunal further observed that in view of the fact that the Claimant won in the 1993 Amparo decision, it did not appear that there was a denial of due process or denial of justice giving rise to a violation of international law.

In regard to the alleged violation of national treatment under Article 1102, the Tribunal found evidence of discrimination both in regard to registration and export privileges. In particular, the Tribunal found that since the IEPS invoice requirement was waived for domestic cigarette resale/exporters, but not for CEMSA, this de facto discrepancy in treatment was sufficient to establish a denial of national treatment under Article 1102. The Tribunal noted that it had assumed that the differential treatment was based on the Claimant? nationality, in the absence of any evidence to the contrary presented by Mexico.

The Tribunal ordered Mexico to pay the sum of $9,464,627.50 Mexican pesos in principal to the Claimant, plus interest generated at the time of the signature of the award.

Click here for the decision.

Click here for the annex.

Click here for the dissenting opinion.

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International Criminal Tribunal for Rwanda (ICTR): The Prosecutor v. Laurent Semanza (ICTR-97-20-T), The Prosecutor v. Niyitegeka (ICTR 96-14) (May 15, 2003)

Trial Chamber III of the ICTR convicted Laurent Semanza of complicity to commit genocide and of extermination, torture and murder as crimes against humanity. Semanza was sentenced to 25 years of imprisonment. Semanza was found, inter alia, to have committed torture and murder as crimes against humanity by means of his incitement of a crowd in Giroko in April 1994 to rape Tutsi women prior to killing them. Semanza was also found guilty of the torture and murder of a Tutsi man during the Musha Church massacre. The Trial Chamber acquitted Semanza of genocide, direct and public incitement to commit genocide, in addition to serious violations of Article 3 of the Geneva Conventions and the Additional Protocols.

Eliézer Niyitegeka, central Africa?s country information minister during the 1994 genocide and member of the Mouvement Démocratique Républicain (MDR) in Rwanda from 1991 to 1994, was convicted by Trial Chambre I of genocide and crimes against humanity related to the massacre of Tutsi civilians in Kibuye. The Trial Chamber found Niyitegeka guilty of, inter alia, procuring gendarmes for an attack on Tutsi seeking refuge in Mubuga Church, for having led armed attackers against Tutsi refugees at Muyira Hill, and for having incited others to exterminate the Tutsi population. The Trial Chamber acquitted Niyitegeka of complicity to commit genocide, of rape as a crime against humanity, in addition to acquitting him of serious violations of Article 3 of the Geneva Conventions and the Additional Protocols.

Click here for decision.

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International Criminal Tribunal for the Former Yugoslavia (Trial Chamber): Prosecutor v. Milutinovic et al. (Decision on Motion Challenging Jurisdiction), Case No. IT-99-37-PT (May 6, 2003)

The ICTY Trial Chamber dismissed the Defense Motion Challenging Jurisdiction that had been filed by Mr. Dragoljub Ojdanic, a former Chief of the General Staff of the Yugoslav Army, who has been one of the three co-defendants in the Milutinovic et al. case. The case concerns the crimes allegedly committed by Mr. Ojdanic, Mr. Milan Milutinovic, the former President of the Republic of Serbia, and Mr. Nikola Sainovic, the former Deputy Prime Minister of the Federal Republic of Yugoslavia (FRY, now Serbia and Montenegro) in the course of the 1999 armed conflict in the Serbian autonomous province of Kosovo, which is now under interim civilian administration led by the United Nations.

Mr. Ojdanic argued that the ICTY does not have jurisdiction over crimes committed in the territory of Kosovo for the reason: (1) that the FRY was not a U.N. member state at the time of the adoption of the ICTY Statute in 1993 and at the time of the events that took place in Kosovo in 1999, and that the U.N. Security Council therefore lacked the power to impose Chapter VII measures on the FRY; and (2) that the doctrine of universal jurisdiction is not part of customary international law and, "in any event, in contradistinction to the applicability of such jurisdiction by a State, 'universal jurisdiction' cannot justify the jurisdiction of an international court."

The Trial Chamber noted that it concurs with the September 1992 letter by the U.N. Under-Secretary-General for Legal Affairs regarding the FRY's status in the United Nations. The letter stated that the FRY's membership in the United Nations was neither suspended nor terminated, despite the adoption of the General Assembly resolution 47/1 that had prohibited the FRY from participating in the work of the General Assembly, its subsidiary organs, or conferences and meetings convened by it. The Trial Chamber held that the resolution 47/1 "left untouched the relationship of the FRY to the Security Council, and consequently, the application of the regime of Security Council resolutions to it," including the resolution establishing the ICTY Statute. The Trial Chamber thus concluded that the FRY was "in fact" a U.N. member at the time of the adoption of the ICTY Statute in 1993 and at the time of the commission of the alleged offences in 1999. In addition, the Trial Chamber held that the formal admission of the FRY to the U.N. membership in 2000 "does not invalidate its conclusion that the FRY retained sufficient indicia of membership in the period between 1992 and 2000."

In the alternative, the Trial Chamber considered the effect on the outcome of the defense motion if it was to be decided that the FRY was not a U.N. member state at the relevant time. The Trial Chamber held that the outcome would be the same since the ICTY's jurisdiction "covers the commission of the crimes by any person in a State that was part of the territory of the former [Yugoslavia]," including those committed in Kosovo as a part of the FRY, which was also a part of the former Yugoslavia. The Trial Chamber also observed that "nothing stands in the way of a reading of Chapter VII, as enabling the Council to adopt measures under Article 41 of the Charter in relation to a conflict that it has determined to be a threat to international peace and security, and which started in a member State of the United Nations, but which at the time of the measures taken was no longer a United Nations member."

As to the second ground argued in the defense motion and involving the question of universal jurisdiction, the Trial Chamber acknowledged that this "may be relevant to the issues raised by the Motion," but that it did not consider it necessary to make a determinations on these issues in the light of its conclusions regarding the first ground raised in the motion.

Click here for the decision.

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LEGISLATION AND REGULATION

Belgian Legislature: Amendment to the 1993 Law Concerning Grave Breaches of International Humanitarian Law and to Article 144(ter) of the Judicial Code (May 7, 2003)

Amendments to the Belgian law concerning the punishment of grave breaches of international humanitarian law (dating from 1993 and previously amended in 1999), were adopted by the Belgian Senate in April, and entered into force on May 7, 2003, following publication of the amendments in the Belgisch Staatsblad (Belgium?s official gazette).

Regarding the scope of Belgium?s jurisdiction over grave breaches of international humanitarian law, the amendment provides:

Art.7-§1 Except in the event of a decision of abstention from jurisdiction in the event of one of the situations set forth in the following paragraphs, Belgian tribunals have competence over the violations provided by the present law, independently of where they have been committed and even if the alleged offender is not located within Belgium.

The public action will nonetheless be initiated only upon requisition of the federal prosecutor if:

1) the violation was not committed on Belgian territory

2) the alleged offender is not Belgian

3) the alleged offender is not located within Belgian territory

4) the victim is not Belgian or has not resided in Belgium for at least three years

Once seized with an application under paragraph 2, the federal prosecutor will seek instruction from the judge that he investigate the complaint unless:

1) the complaint is manifestly unfounded; or

2) the facts presented do not correspond to a qualification under the present law; or

3) a public action cannot be admitted under this application; or

4) in the concrete circumstances of the matter, it results that, in the interest of administration of justice and in respect of Belgium?s international obligations, this matter should be brought either before international tribunals, or before a tribunal in the place where the acts were committed, or before the tribunals of a State in which the offender is a national or where he may be found, and as long as this tribunal is competent, independent, impartial and fair.

(...)

The amendments add to and modify some of the crimes listed as crimes of genocide, war crimes and crimes against humanity. In addition, they provide a clause stating that ?international immunity derived from a person?s official capacity does not prevent the application of the present law except under those limits established under international law.?

Click here for the document available in French.

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BRIEFLY NOTED

International Criminal Court (ICC): Assembly of State Parties, First Session (second resumption) (April 21-23, 2003)

The Assembly of States Parties to the Rome Statute of the ICC held the second resumption of its first session. On April 21, 2003, Mr. Luis Moreno Ocampo (Argentina) was elected Prosecutor of the ICC.

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United States-Albania Article 98 Agreement (May 2, 2003)

The United States and Albania signed an Agreement on the cooperation modalities between the two countries and the International Criminal Court (ICC). Albania is the 32nd country to enter into such an agreement, known as ?Article 98" side agreements. Article 98 of the Rome Statute of the ICC provides that ?1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity. (2) The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.?

The Agreement signed by Albania and the United States exempts U.S. nationals from prosecution by Albania pursuant to the ICC.

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United States (U.S.) Court of Appeals for the Ninth Circuit: Altmann v. Republic of Austria, Nos. 01-56003, 01-56398 (April 30, 2003)

The Ninth Circuit denied Austria?s petition for a rehearing en banc of its December 12, 2002 decision in which it exercised jurisdiction over against Austria and the Austrian Gallery for the alleged wrongful appropriation of six Gustav Klimt paintings in violation of international law and upheld the district court's retroactive application of the Foreign Sovereign Immunities Act (?FSIA?). (See ILIB of January 10, 2003 for a summary of the decision. The text of the December 12th decision is published in 42 ILM 216 (2003)).

Click here for the decision.

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United States (U.S.) Supreme Court: Coalition of Clergy, Lawyers & Professors, et al., v. Bush, et al. (May 19, 2003)

The U.S. Supreme Court denied the petitioners? writ of certiori. The petitioners sought next friend standing pursuant to the U.S. federal habeas statute 28 U.S.C.§ 2242 in order to bring an action on behalf of detainees captured in Afghanistan and currently held at Guantanamo Naval Base in Cuba (?the detainees?). The Ninth Circuit found that the Coalition lacked the relationship necessary to bring a habeas petition on behalf of the detainees as a next-friend. (See ILIB of February 14, 2003) The Coalition?s petition alleged that the U.S. has been violating the Third Geneva Convention and the U.S. Constitution by depriving the detainees of their liberty without due process of law, by failing to inform them of the nature and cause of the accusations against them, and by not affording them assistance of counsel.

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United Nations (U.N.): Cambodia Tribunal Agreement (May 13, 2003) The General Assembly of the U.N. approved an agreement with Cambodia establishing an international tribunal for prosecuting Khmer Rouge leaders for genocide, war crimes and crimes against humanity. The tribunal?s trial and appeals chambers will have a majority of Cambodian judges, however in accordance with the UN agreement, at least one international judge will join in all judgments.

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Svea Court of Appeals (Sweden): CME Czech Republic B.V. v. The Czech Republic (May 15, 2003) The Svea Court of Appeals rejected the Czech Republic?s request for setting aside an arbitral award issued by an ad hoc tribunal in Stockholm. The arbitration tribunal, established pursuant to the Bilateral Investment Treaty (BIT) between the Czech Republic and the Netherlands, had concluded that the Czech Republic was required to pay to CME US$269.814.000 in damages for breaches of the BIT. (See ILIB summary of April 22, 2003))

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World Health Organization (WHO) Intergovernmental Negotiating Body on the WHO Framework Convention on Tobacco Control: Adoption of WHO Framework Convention on Tobacco Control, A/FCTC/INB6/5 (May 21, 2003)

The 192 Member States of the WHO unanimously adopted the Framework Convention on Tobacco Control (?the Convention?) aimed at curbing tobacco-related illness and deaths. The Convention requires States parties to implement tax, price policies advertising and other controls on tobacco products that facilitate the reduction of tobacco consumption, and prohibit or restrict tobacco smuggling. For a summary and link to the Draft Framework Convention, see ILIB of March 31, 2003.

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New ASIL Interactive Events Calendar

Please note that the American Society of International Law has just unveiled an interactive events calendar on www.asil.org. You can directly submit programs of interest to those who practice, teach and study international law and relations. The events will be posted, after approval, on the ASIL website which is visited by over 60,000 users a month.

To submit an event to the international law calendar, go to http://asil.intracommunities.org/calendar and choose to ?Add a record?. First time users will need to register their names and email addresses, and to create passwords for themselves. Then just follow the onscreen instructions to add the event.

The ASIL has published its calendar of international events for many years both in print and online. We hope it continues to be a useful means to communicate activities in the international legal community.

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International Law In Brief (ILIB) - Copyright 2003 - The American Society of International Law (ASIL)
Editors: Ruth Teitelbaum, Branislav Maric, Scott Smith