International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
May 7, 2004
TREATIES, AGREEMENTS AND RELATED DOCUMENTS
JUDICIAL AND SIMILAR PROCEEDINGS
DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS
TREATIES, AGREEMENTS AND RELATED DOCUMENTS
Extradition Treaty Between the United States of America and the United Kingdom of Great Britain and Northern Ireland, and related Exchanges of Letters Signed at Washington on March 31, 2003 (April 19, 2004)
On April 19, 2004, President George W. Bush transmitted the Extradition Treaty Between the United States of America ("U.S.") and the United Kingdom of Great Britain and Northern Ireland ("U.K.") with a view to receiving the advice and consent of the Senate to ratification. This extradition treaty is to be self-executing and will not require implementing legislation in order to come into force.
Upon its entry into force, this treaty will replace the extradition treaty signed in 1972 and the supplementary treaty signed in 1985, which are currently in force between the two countries. Article 2 of the Treaty concerns the scope of extraditable offenses. Article(2)(1) provides that an offense is extraditable "if the conduct on which the offense is based is punishable under the laws of both States by deprivation of liberty for a period of one year or more or by a more severe penalty.
Article 2(3) provides that an offense shall be extraditable "(a) whether or not the laws in the Requesting and Requested States place the offense within the same category of offenses or describe the offense by the same terminology; or (b) whether or not the offense is one for which United States federal law requires the showing of such matters as interstate transportation, or use of the mails or of other facilities affecting interstate or foreign commerce, such matters being jurisdictional only."
Article 2(4) concerns offenses committed outside the territory of one of the parties, and provides that "If the offense has been committed outside the territory of the Requesting State, extradition shall be granted in accordance with the provisions of the Treaty if the laws in the Requested State provide for the punishment of such conduct committed outside the territory in similar circumstances. If the laws in the Requested State do not provide for the punishment of such conduct committed outside of its territory in similar circumstances, the executive authority of the Requested State, in its discretion, may grant extradition provided that all other requirements of this Treaty are met."
Article 4 sets forth the scope of political and military offenses. It provides that the following will not be considered political offenses:"(a) an offense for which both Parties have the obligation pursuant to a multilateral international agreement to extradite the person sought or to submit the case to their competent authorities for decision as to prosecution; (b) a murder or other violent crime against the person of a Head of State of one of the Parties, or of a member of the Head of State's family;(c) murder, manslaughter, malicious wounding, or inflicting grievous bodily harm; (d) an offense involving kidnaping, abduction, or any form of unlawful detention, including the taking of a hostage; (e) placing or using, or threatening the placement or use of, an explosive, incendiary, or destructive device or firearm capable of endangering life, of causing grievous bodily harm, or of causing substantial property damage; (f) possession of an explosive, incendiary, or destructive device capable of endangering life, of causing grievous bodily harm, or causing substantial property damage;(g) an attempt or a conspiracy to commit, participation in the commission of, aiding or abetting, counseling or procuring the commission of, or being an accessory before or after the fact to any of the foregoing offenses.
Article 4(3) provides that notwithstanding the above, the competent authority of a Requested State may decide not to grant an extradition request if he or she determines that the request was politically motivated. It also notes that in the U.S., it is the executive branch that is the competent authority for purposes of Article 4 and it would make such determination. Article 4(4) provides that the competent authority of the Requested State may refuse extradition for offenses under military law that are not offenses under ordinary criminal law.
Article 7, concerning capital punishment, provides: "When the offense for which extradition is sought is punishable by death under the laws in the Requesting State and is not punishable by death under the laws in the Requested State, the executive authority in the Requested State may refuse extradition unless the Requesting State provides an assurance that the death penalty will not be imposed or, if imposed, will not be carried out."
Document provided to the ILM office.
JUDICIAL AND SIMILAR PROCEEDINGS
Eritrea-Ethiopia Claims Commission (EECC): Partial Award on Eritrea's Central Front Claims 2, 4, 6, 7, 8 & 22; Partial Award on Ethiopia's Central Front Claim 2 (April 28, 2004)
The Eritrea-Ethiopia Claims Commission (?EECC? or ?Commission?) issued two awards addressing both Eritrea and Ethiopia?s claims for losses, damage and injury suffered as a result of alleged violations of international law occurring following the outbreak of hostilities on the Central Front during the 1998-2000 international armed conflict between Eritrea and Ethiopia. The Commission?s mandate, set forth in Article 5, paragraph one of the Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea of December 12, 2000 (?the Agreement?) provides, inter alia, that the Commission is to decide through binding arbitration all claims for loss, damage, or injury by one Government against the other and by nationals of one party against the Government of the other Party that are related to ?violations of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law.? (See 40 ILM 260 (2001)).
The Commission, noting at the outset that the parties' witnesses frequently presented opposite views of the facts, observed that "it has often been said that, in war, truth is the first casualty," and further observed that "[i]n these unhappy circumstances, the Commission, which is charged with determining the truth, must do its best to assess the credibility of such conflicting evidence. Considerations of time and expense usually prevent more than a handful of witnesses being brought to The Hague to testify before the Commission, so the Commission is then compelled to judge the credibility of any particular declaration, not by observing or questioning the declarant, but rather on the basis of all relevant evidence before it, which may or may not include evidence from persons or parties not directly involved in the conflict." The Commission recalled its holding in its previous partial awards concerning prisoners of war and stated that it would require clear and convincing evidence in support of its findings. (Click here for the ILIB summary and link) In terms of applicable law, the Commission noted that its prior holding in its partial awards concerning prisoners of war applied, confirming that Geneva Conventions of 1949 had largely become expressions of customary international humanitarian law.
In particular, the Commission observed that both parties had presented numerous claims alleging the improper use of anti-personnel landmines and booby traps, however none of the international weapons conventions dealing with armed conflict was in force between the parties during the conflict. (For links to several treaties dealing with armed conflict, see the Use of Force>Armed Conflict section of www.eisil.org, currently in development) The Commission therefore decided that customary international humanitarian law is the law applicable to these claims.
Eritrea brought several claims concerning, inter alia, illegal use of landmines, unlawful occupation, looting, destruction, and rape of civilian women. In regard to claims concerning rape, the Commission noted that neither Eritrea nor Ethiopia alleged "strategically systematic sexual violence against civilians in the course of the armed conflict and occupation of Central Front territories." However, each side did allege frequent rape of its women civilians by the other's soldiers. The Commission found unrebutted prima facie cases in which Eritrea and Ethiopia failed to impose effective measures to prevent rape of civilian women, in particular in Senafe Town in Eritrea and Irob Wereda in Ethiopia.
The Commission found several of Eritrea's claims to be inadmissible, either due to Eritrea's failure to identify these claims or to refer to them in its Statement of Claim filed by December 12, 2001, or due to an inadequate amount of evidence presented to the Commission. Among these inadmissible claims was the claim for Ethiopia's unlawful use of landmines in Areza Sub-Zoba.
The Commission found Ethiopia liable for failure to take effective measures to prevent rape of women by its soldiers during its occupation of Senafe town. It also found Ethiopia liable for acts of looting and destruction, and for permitting the deliberate explosion, in particular, of an ancient monument of Stela of Matara. However, Eritrea's request that the Commission order Ethiopia to apologize for the damage to Stela of Matara was denied.
Ethiopia's Claim 2 involved alleged violations of international as a result of, inter alia, the beating of civilians, forced labor, the rape of civilian women, destruction and looting of property, and the illegal use of land mines. The Commission found that as there was insufficient evidence to support a finding that forced labor was frequent and pervasive, it could not justify a finding of liability in this regard. With respect to the claim for unlawful use of landmines, the Commission found that the evidence suggested that the landmines "were placed as a defensive measure, which is the type of use that is common and permissible under customary international law.? The Commission further noted that while Eritreans were holding those positions, they were under an obligation to issue reasonable precautions to civilians for their protection. However the Commission found that Ethiopia failed to present evidence regarding precautions or the lack thereof, and instead relied on claims based on injuries caused by anti-personnel landmines left behind when Eritrean forces withdrew their positions, often as a result of the Ethiopian offensive in 2000. The Commission held that "[w]hen troops are compelled to quit their defensive positions by force of arms, as occurred then, it is understandable that they may be unable to remove or otherwise neutralize their mine fields. On the contrary, they may depend on those mine fields to slow their attackers or to channel their attacks sufficiently to allow defense and escape."
The Commission found Eritrea liable for permitting frequent physical abuse of civilians by intentional killings, for looting and unlawful destruction, for failing to release civilians taken into custody and for failing to provide information concerning their whereabouts, for failing to prevent two of its military aircraft from dropping cluster bombs in the vicinity of Ayder school and its civilian neighborhood and for the resulting injuries and deaths, and for failing to take effective measures to prevent rape of women by its soldiers in Irob Wereda.
The Commission noted that Ethiopia's claim that Eritrea was in violation of the laws of war will be deferred for a decision in a subsequent proceeding.
Click here for the PCA website with links to the decisions.
United States (U.S.) Court of Appeals for the Ninth Circuit: Coyle v. P.T. Garuda Indonesia (No. 01-35784 District Court No. CV-99-01348-REJ)(April 12, 2004)
The representatives for the estates of an airplane crash brought wrongful death actions against an Indonesian national airline. The United States District Court for the District of Oregon rejected the airline?s claims for lack of jurisdiction under the Convention for the Unification of Certain Rules Relating to International Transportation by Air (?The Warsaw Convention?) and the Foreign Sovereign Immunities Act (?FSIA?), 28 U.S.C. § 1604 (2003). The airline subsequently filed an interlocutory appeal to the United States Court of Appeals for the Ninth Circuit (?The Court of Appeal.?)
Fritz G. and Djoeminah Baden, residents of Oregon, decided to visit Indonesia in September 1997. To that end, they contacted Astra World Express, Inc., (?Astra?) a Portland Oregon travel agency, and booked a flight itinerary. On or about September 25, 1997, while in Indonesia, the Badens purchased two tickets in Jakarta to Medan aboard Garuda Indonesia Airlines (?Garuda?) Flight 152, leaving Jakarta on September 26. The Badens paid for the tickets in Indonesian Rupiah, and the tickets were clearly labeled ?DOMESTIK.? The plane flying the Badens crashed into the side of a mountain. None of the crew or passengers survived, making it the worst air disaster in Indonesian history.
On September 22, 1999, Joyce Coyle, one of the Badens three children, filed a lawsuit against Garuda in the District Court, alleging both negligent and intentional wrongful death claims under the Warsaw Convention. Coyle argued that two exceptions to the FSIA?s grant of sovereign immunity applied to allow the federal courts to entertain her suit. The first exception, 25 U.S.C. § 1605(a)(1), denies immunity to sovereigns that have explicitly or implicitly waived it; the second exception, U.S.C. § 1605(a)(2), denies immunity in actions ?based upon a commercial activity carried on in the United States by a foreign state ... or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.?
The Court first considered whether Indonesia had waived Garuda?s entitlement to sovereign immunity under the FSIA, either explicitly or by implication. Ms. Coyle contended that Garuda?s possession of a U.S. Department of Transportation foreign air carrier operating permit at the time of the accident constituted a waiver of foreign sovereign immunity. Garuda contended that, according to the permit, its sovereign immunity could be waived only for flights ?between a place in the United States and a place outside the United States.? The Court disagreed with Garuda?s claim and stated that Garuda?s waiver was far broader and reaches suits ?based on [the holder?s] operations and international air transportation? and those ?based upon a claim under any international agreement or treaty,? which meant that it could not plausibly be limited only to those claims ?arising from? operations under the permit.
In order to determine whether Garuda?s immunity waiver applied to the lawsuit, the Court examined whether the operation of Flight 152 came within the scope of the Convention. Garuda claimed that a purely domestic flight within the sovereign territory of Indonesia could not come within the Convention. The Court disagreed and, quoting Article 1(3) of the Warsaw Convention held, ?Such language unambiguously indicates that, at least in certain circumstances, purely domestic air travel can be covered by the Warsaw Convention?s definition of international transportation.? ?(emphasis added) In order for Garuda?s permit?s sovereign immunity waiver to apply, the Court stated that Ms. Coyle?s claim must be cognizable in a Court or other Tribunal of the United States, under Article 28 of the Convention. Given that the United States is neither Garuda?s domicile nor its principal place of business, and because the Bidens purchased their tickets for flight 152 while in Jakarta, the Court held that the only way a U.S. Court could take cognizance of Coyle?s action was if the Badens? ?place of destination? were in the United States. The Court followed its previous decision in Sopcak v. Northern Mountain Helicopter Service, 52 F.3rd 817 (9th Cir.1992), in holding that ?the intention of the parties determines the final destination?, although it also considered objective evidence regarding the circumstances of the ticketing to be appropriate in evaluating the connectedness of individual flight segments for Convention purposes. Applying this methodology, the Court concluded that the Badens? tickets for flight 152 did not represent a contract for international transportation within the meaning of the Convention. It felt that the marking of the Badens? tickets as ?DOMESTIK? ? coupled with the lack of any other kind of notation connecting those tickets to international travel ? illustrated that the parties regarded Flight 152 as a domestic one unconnected to the Badens? international travel. The Court also noted that the Badens tickets were purchased two months after the purchase of their international itinerary and were obtained in Jakarta, not through Astra Travel in Oregon. The tickets were also issued in Indonesia; and were paid for in Indonesian Rupiah, making this a late-added, purely domestic side-trip, separate from the Badens? international itinerary with its own final destination. The Court further dismissed the District Court?s ?agency theory,? which imputed knowledge from Astra to Garuda, by saying that there was no compelling objective evidence to indicate the existence of actual knowledge on the part of Garuda?s or Astra Travel?s agents. The Court also rejected the District Court?s speculation that Garuda was aware (through hypothetical contact between the Badens and Garuda?s employees in Jakarta) that the Badens were Americans.
The Court then turned to the ?commercial activity? exception in § 1605(a)(2) of the FSIA. It held that, because Flight 152 was a domestic side-trip, purchased and undertaken separately, the Badens? purchase of the international travel package, delineated on their original itinerary, could not create the requisite nexus. Also, because the Badens bought their ticket in Indonesia, not the U.S., such commercial activity also failed to create the requisite nexus.
The Court concluded that it lacked jurisdiction over the case, reversed the District Court?s decision, and remanded the case with instructions to dismiss for want of subject-mater jurisdiction.
Click here for the Decision
International Criminal Tribunal for the Former Yugoslavia (ICTY): Prosecutor v. Krstic, Case No.: IT-98-33-T (April 19, 2004)
The Appeals Chamber of the ICTY delivered its judgment on the appeal in the case of the Prosecutor against Mr. Radislav Krstic. Both the Prosecution and Defense appealed from the judgment issued by Trial Chamber I on August 2, 2001. (For a summary and link see ILIB) The Appeals Chamber unanimously held that genocide was committed in Srebenica in 1995 and that Mr. Krstic?s should be given a sentence of 35 years for aiding and abetting in genocide.
The relevant events took place in Srebenica, a town situated in the former Yugoslavia, around July 1995. The Drina Corps division of the Bosnian Serb Army (the VRS) was responsible for the area of Srebenica. Mr. Krstic was a General-Major in the VRS and Commander of the Drina Corps at the time the crimes were committed. The Trial Chamber of the ICTY had previously sentenced Mr. Krstic to 46 years imprisonment for the crime of genocide.
The first question related to whether the Trial Chamber defined the relevant part of the Bosnian Muslim group in a way that comports with Article 4 of the Genocide Convention. The Appeals Chamber affirmed that it is well established that where a conviction for genocide relies on the intent to destroy a protected group ?in part,? the part must be a substantial part of that group. It agreed with the Trial Chamber?s definition in that the killing of men of military age was the only part of the protected group who were relevant to this Article 4 analysis; this ?part? of the group served as evidence from which to infer that Mr. Krstic and some members of the VRS main staff had the requisite intent to destroy all the Bosnian Muslims of Srebenica. The Appeals Chamber also found that the Trial Chamber did not depart from the legal definitions of genocide in concluding that some members of the VRS main staff intended to destroy the Bosnian Muslims of Srebenica.
The second question concerned alleged factual errors relating to the Trial Chamber?s finding that Mr. Krstic was guilty of ?joint criminal enterprise to commit genocide? from the evening of July 13, 1995 to execute the Bosnian Muslims of Srebenica. The Court held that the Defense had not presented ample evidence to rebut the conclusion that Mr. Krstic had assumed effective control of Drina Corps on July 13, 1995. The Defense also challenged the finding of the Trial Chamber that Mr. Krstic directly participated in the executions and argued that, even if the evidence before the Trial Chamber is sufficient to establish knowledge on Mr. Krstic?s part about the genocide committed in Srebenica, it is not sufficient to establish that he committed genocide. The court held that the evidence failed to establish the direct involvement of the Drina Corps in carrying out the executions. However, the court did find that the evidence was sufficient to establish the involvement of the Drina Corps personnel and assets in facilitating the executions.
In light of these findings, the Appeals Chamber then had to determine whether the Trial Chamber erred in finding that Mr. Krstic shared the genocidal intent of a joint criminal enterprise to commit genocide against the Bosnian Muslims of Srebenica. The Appeals Chamber held that the finding of the Trial Chamber was largely based upon a combination of circumstantial facts. It stated that the evidence could only establish that Mr. Krstic was aware of the intent to commit genocide on the part of some members of the Main Staff, and with that knowledge, Mr. Krstic did nothing to prevent the use of the Drina Corps personnel and resources to facilitate those killings. The court noted, however, that knowledge on Mr. Krstic?s part alone was insufficient to support an inference of genocidal intent, and concluded that there was a demonstrable failure by the Trial Chamber to supply adequate proof that Mr. Krstic had possessed the genocidal intent to be guilty of genocide as a principal perpetrator. Nonetheless, all the crimes that followed the fall of Srebenica occurred in the Drina Corps zone of responsibility. The Court felt that, by allowing Drina Corps resources to used, Mr. Krstic was making a substantial contribution to the execution of the Bosnian Muslim prisoners. Thus, the criminal liability of Mr Krstic was more properly expressed as ?aiding and abetting genocide? under Article 7(1) of the Tribunal?s statute, in contrast to Trial Chamber?s finding of ?complicity in genocide? under Article 4(3)(e).
The Appeals Chamber also disagreed with the Trial?s Chamber?s analysis of cumulative convictions. The court found the Trial Chamber should not have disallowed convictions for extermination and persecution on the grounds that they were impermissibly cumulative with Mr. Krstic?s conviction for genocide. The Court held that, contrary to the analysis of the trial court, the offense of genocide does not subsume that of persecution.
Finally, on the issue of sentencing, both parties appealed the Trial Chamber?s ruling on a single sentence of 46 years imprisonment. The Appeals Chamber held that the revision of Mr. Krstic?s sentence to that of ?aiding and abetting,? merited a considerable reduction in sentence. The Appeals Chamber outlined four additional factors which must be accounted for in mitigation of Mr. Krstic?s sentence, namely: (1) the nature of his provision of the Drina Corps assets and resources; (2) the fact that he had only recently assumed command of the Corps during combat operations; (3) the fact that he was present in and around Potocari for almost two hours; and (4) his written order to treat Muslims humanely. Accordingly, the Appeals Chamber reduced Mr. Krstic?s sentence to 35 years? imprisonment.
Click here for the decision.
DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS
International Institute for the Unification of Private Law (UNIDROIT): Convention on International Interests in Mobile Equipment: Preliminary Draft Protocol on Matters Specific to Space Assets (December 15-19, 2003)
The Preliminary Draft Protocol on Matters Specific to Space Assets ("Draft Space Assets Protocol") is the third protocol of the Convention on International Interests in Mobile Equipment, known as the Capetown Convention, opened for signature in Capetown on November 16, 2001. (The Capetown Convention entered into force on April 1, 2004 with respect to its first protocol, the Protocol on Matters Specific to Aircraft).
The Preamble to the Draft Space Assets Protocol states that it is "[m]indful of the continuing development of the international commercial space industry" and it recognizes "the need for a uniform and predictable regimen governing the taking of security over space assets."
According to Article I of the Draft Space Assets Protocol, ?space" means ?outer space, including the Moon and other celestial bodies." "Space assets" means: (1) any identifiable asset that is intended to be launched and placed in space that is in space; (2) any identifiable asset assembled or manufactured in space; (3) any identifiable launch vehicle that is expendable or can be reused to transport persons or goods to and from space; and (4) any separately identifiable component forming a part of an asset referred to in the preceding sub-paragraphs or attached to or contained within such asset.
The provisions of the Draft Space Assets Protocol concern the transfers of interest through contract of sales and the rights of debtors and creditors. It provides for default remedies and remedies on insolvency, and registration requirements for secured transactions.
Chapter IV of the Draft Space Assets Protocol concerns jurisdiction and the waiver of sovereign immunity. Chapter V governs the relationship between this Protocol and other Conventions, and provides that this "Convention as applied to space assets shall supercede the UNIDROIT Convention on International Financial Leasing in respect of the subject matter of this Protocol, as between States Parties to both Conventions."
Document provided to the ILM Office.
United Nations (U.N.) Security Council: Resolution 1540 (Non proliferation of Weapons of Mass Destruction), S/RES/1540 (April 22, 2004)
The Security Council reaffirmed the need for all Member States to fulfill their obligations in relation to arms control and disarmament and to prevent proliferation in all its aspects of all weapons of mass destruction. It noted its grave concern by the threat of terrorism and the risk of non-State actors as well as the threat of illicit trafficking in nuclear, chemical, or biological weapons and their means of delivery and related materials.
Acting under Chapter VII of the UN Charter, the Security Council decided that all States shall take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical or biological weapons and their means of delivery, including by establishing appropriate controls over related materials. The Security Council decided to establish for a period of no longer than two years, a Committee of the Security Council, consisting of all members of the Council, which will report to the Security Council on the implementation of this resolution. It further decided that none of the obligations set forth in this resolution shall be interpreted so as to conflict with or alter the rights and obligations of State Parties to the Nuclear Non-Proliferation Treaty, the Chemical Weapons Convention and the Biological and Toxic Weapons Convention or alter the responsibilities of the International Atomic Energy Agency or the Organization for the Prohibition of Chemical Weapons. (To access these treaties, please see http://www.eisil.org/)
Click here for a link to recent Security Council Resolutions.
United Nations (U.N.) Security Council: Resolution 1542 (The Question Concerning Haiti), S/RES/1542 (April 30, 2004)
The Security Council affirmed its strong commitment to the sovereignty, independence, territorial integrity and unity of Haiti. The Security Council decided to establish the United Nations Stabilization Mission in Haiti (MINUSTAH) for an initial period of six months, and requested that authority be transferred from the present Multinational Interim Force (MIF) on June 1, 2004. It requested the Secretary-General to appoint a Special Representative in Haiti who has overall authority on the ground for the coordination and conduct of all activities in the United Nations agencies, funds and programs in Haiti.
Acting under Chapter VII of the Charter of the United Nations, the Security Council requested the Haitian authorities to conclude a status-of-force agreement with the Secretary-General within 30 days of adoption of this resolution, and noted that, pending the conclusion of such an agreement, the model status-of-force agreement dated October 9, 1990 (A/45/594) shall apply provisionally. It further demanded that all parties in Haiti provide safe and unimpeded access to humanitarian agencies to allow them to carry out their work. The Security Council also called on Member States to provide international aid to meet the humanitarian needs in Haiti and to permit the reconstruction of the country.
Click here for a link to recent Security Council Resolutions.
International Law In Brief (ILIB) - Copyright 2004