International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
July 9, 2004
JUDICIAL AND SIMILAR PROCEEDINGS
o U.S. Supreme Court: Hamdi et al. v. Rumsfeld, Secretary of Defense, et al. (June 28, 2004)
DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS
o Council of Europe: Protocol No. 14 amending the European Convention on Human Rights (May 13, 2004)
- EU: Council adopted the Qualification Directive and the Asylum Procedures Directive (April 30, 2004)
- International Maritime Organization (IMO): Global Program on Maritime and Port Security
JUDICIAL AND RELATED DOCUMENTS
International Court of Justice (ICJ) Advisory Opinion: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (No. 131) (July 9, 2004)
The ICJ concluded that "... from the material available to it, is not convinced that the specific course Israel has chosen for the wall was necessary to attain its security objectives. The wall, along the route chosen, and its associated régime gravely infringe a number of rights of Palestinians residing in the territory occupied by Israel, and the infringements resulting from that route cannot be justified by military exigencies or by the requirements of national security or public order. The construction of such a wall accordingly constitutes breaches by Israel of various of its obligations under the applicable international humanitarian law and human rights instruments.?
The ICJ was asked to render an advisory opinion pursuant to Resolution ES -10/14 adopted by the General Assembly of the United Nations on December 8, 2003 at its Tenth Emergency Special Session.
Israel contended that due to Palestine's responsibility for acts of violence against Israel and its population, it could not seek a remedy for a situation resulting from its own wrongdoing, namely attacks on Israeli civilians. Israel invoked the maxim nullus commodum capere potest de sua injuria propria, and urged that the principle of ?clean hands? should have made the ICJ decline the request for an advisory opinion.
The ICJ considered the above argument to be irrelevant, noting that "[i]t was the General Assembly which requested the advisory opinion, and the opinion is to be given to the General Assembly, and not to a specific State or entity."
In terms of applicable law, the ICJ noted that the U.N. Security Council, in Resolution 681 (1990), urged ?the Government of Israel to accept the de jure applicability of the Fourth Geneva Convention . . . to all the territories occupied by Israel since 1967 and to abide scrupulously by the provisions of the Convention? and it called upon ?the high contracting parties to the said Fourth Geneva Convention to ensure respect by Israel, the occupying Power, for its obligations under the Convention in accordance with article 1 thereof.? The ICJ concluded that the Fourth Geneva Convention was applicable to any occupied territory in the event of an armed conflict arising between two or more High Contracting Parties. It noted that since Israel and Jordan were parties to that Convention when the 1967 armed conflict broke out, the Convention is therefore applicable in the Palestinian territories.
The ICJ also found that contrary to Israel's view, the territories occupied by Israel have for over 37 years been subject to Israel's territorial jurisdiction as the occupying Power. It therefore concluded that in the exercise of the powers, Israel is bound by the provisions of the International Covenant on Economic, Social and Cultural Rights. It further held that "Israel is under an obligation not to raise any obstacle to the exercise of such rights in those fields where competence has been transferred to Palestinian authorities."
In terms of the merits, the ICJ found that "[w]hilst the Court notes the assurance given by Israel that the construction of the wall does not amount to annexation and that the wall is of a temporary nature (see paragraph 116 above), it nevertheless cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access. The Court considers that the construction of the wall and its associated régime create a ?fait accompli? on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation."
Judge Buergenthal dissented, noting that although he agreed with parts of the opinion, he found that the Court made sweeping legal findings without having before it sufficient evidence regarding Israel's security concerns and therefore was not in a position to render an advisory opinion.
Click here for the decision.
Supreme Court of Israel: Beit Sourik Village Council v. The Government of Israel (HCJ 2056/04) (June 30, 2004)
The Supreme Court of Israel ordered that the route of sections of a wall in the area of Judea and Samaria ("the West Bank") be changed in order to avoid unnecessary hardship to the local Palestinian population. President A. Barak delivered the opinion of the Court.
Israel, as noted by the Court, has been holding the West Bank in belligerent occupation since 1967. Israel began a political process with the PLO in 1993 at which time it signed agreements to transfer control of parts of the area to the Palestinian Authority. Negotiations continued, talks were held at Camp David in the United States, and these talks failed in July 2000. According to the numbers presented by Israel to the Court, more than 8200 attacks on Israeli civilians were carried out in the West Bank area following the failure of the Camp David talks (from September 2000 to April 2004). In response to these attacks, Israel carried out several military operations and began plans for erecting a wall to prevent terrorist infiltration.
The location of this wall that now passes through areas west of Jerusalem is the subject of the dispute between the parties, and is approximately 40 kilometers long. Parts of the wall are being erected on land that is privately owned. Once this private land is seized, an order of compensation is in principle to be made to the landowners.
The petitioners in this case are landowners and the village councils affected by the land seizure orders. The petitioners challenged the legality of the seizure orders in relation to lands located west and northwest of Jerusalem. The claimed that such orders violated both Israeli administrative law and international law. They challenged both the authority of the Israeli military to erect such a wall and the manner in which it has been erected. In particular, the petitioners claimed that the wall passes over many miles of agricultural lands that have been cultivated for generations, that the wall disrupts the lives of 35,000 village residents, blocking access to roads, schools and emergency hospital services.
Members of the Council for Peace and Security joined as amici curiae and proposed a route for the wall that would result in less disruption to villages such as those of the petitioners'.
The Court noted that the authority of Israel's military commander is established in the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 ("the Hague Regulations") It also noted that the Geneva (IV) Convention Relative to the Protection of Civilian Persons in Time of War 1949 ("Geneva Convention IV") provides sets forth the legal framework for the question of the military commander's authority to build this wall.
The petitioners argued that the construction of the wall was motivated by political rather than security concerns, and therefore in violation of the principle that occupation of land should only take place out of military necessity. The Court disagreed with the petitioners, finding that the wall was being built out of military necessity due to security concerns. The Court observed that it could not substitute its judgment for that of the military, and that "[a]ll we can determine is whether a reasonable military commander would have set out the route as this military commander did."
However, the Court noted that even when done out of military necessity, the wall must take into account the needs of the local population. The Court found that the "relationship between the injury to the local inhabitants and the security benefit from the construction of the separation fence along the route, as determined by the military commander, is not proportionate. The route undermines the delicate balance between the obligation of the military commander to preserve security and his obligation to provide for the needs of the local inhabitants. ... Here are the facts: more than 13,000 farmers (falahin) are cut off from thousands of dunams of their land and from tens of thousands of trees which are their livelihood, and which are located on the other side of the separation fence. No attempt was made to seek out and provide them with substitute land, despite our oft repeated proposals on that matter. ... The route of the separation fence severely violates their right of property and their freedom of movement. Their livelihood is severely impaired. The difficult reality of life from which they have suffered (due, for example, to high unemployment in that area) will only become more severe."
The Court found that the injuries were not proportionate, and that they could be substantially decreased by an alternate route, either the route proposed by the experts of the Council for Peace and Security, or another route designed by the military commander.
In sum, the Court upheld all petitions except for one, and found that 30 km of the 40 km wall in question resulted in disproportionate injury to the local population.
Click here for the decision.
Special Court for Sierra Leone: Prosecutor v. Charles Ghankay Taylor: Charles Taylor subject to criminal proceeding before the Special Court (May 31, 2004)
The Appeals Chamber of the Special Court for Sierra Leone (?the Special Court?) ruled that former Liberian President Charles Taylor was subject to criminal proceedings before the Special Court.
The applicant, Charles Taylor, was an incumbent head of State in March 2003 at the time of his indictment and of its communication to the authorities in Ghana. The applicant therefore claimed that the arrest warrant was unlawful because he was immune from prosecution under customary international law. Furthermore, the applicant claimed that the Special Court did not have jurisdiction over him because it was a national and not an international court.
The Special Court reaffirmed a decision delivered on March 16, 2004 which found that the Special Court was a truly international court properly constituted under international law. The Special Court is not a national court of Sierra Leone and is not part of the judicial system of Sierra Leone exercising national judicial powers. The Special Court is a hybrid court with jurisdiction over national and international crimes. The Special Court noted that although it was created by treaty, unlike the ICTY and the ICTR which were established by resolution of the Security Council, it was clear that the power of the Security Council to enter into the agreement establishing the Special Court was derived from the Charter of the United Nations. The Special Court further observed that the agreement between the United Nations and Sierra Leone was an agreement between all members of the United Nations and Sierra Leone and thus the expression of the international community.
The Special Court also held that the applicant did not enjoy an immunity from criminal prosecution. The Special Court noted that the Special Court Agreement or Statute applied equally to all persons without any distinction based on official capacity. The Special Court cited the International Court of Justice Yerodia case which held that unlike national courts, certain international criminal courts have jurisdiction over incumbent or former foreign officials. Thus, the Special Court concluded that the Statute did not conflict with any international norm.
Click here for the decision.
European Court of Human Rights (ECHR): Broniowski v. Poland, Application No. 31443/96 (June 22, 2004)
The ECHR Grand Chamber held unanimously that Poland violated Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights (?the Convention?). The Court also found that many similar so-called Bug River Claims were likely to arise and, therefore, called upon the Polish authorities to take the necessary measures to secure the property rights at issue.
The applicant, Jerzy Broniowski, alleged that Poland failed to satisfy his entitlement to compensation for property which belonged to his grandmother when the area was still part of Poland before the Second World War. At the Yalta and Potsdam conferences the Soviet Union and Poland agreed on a new border along the Bug River. Many people living in the Eastern Provinces of Poland, including the applicant?s grandmother, had to be repatriated. Since 1946, Polish law had entitled them to compensation in kind, i.e. they could buy land from the State for a ?perpetual use? fee offset against the compensation for the abandoned property. In 1981, the applicant?s grandmother received approximately 2% of the value of her abandoned land in the form of the right of perpetual use of a small building plot. In 1989, her entitlement to compensation for the abandoned property and the right of perpetual use were bequeathed to the applicant. On December 19, 2002, the Polish Constitutional Court declared the provisions of the 1990 Local Government Act excluding the enforcement of the Bug River Claims unconstitutional. However, on December 12, 2003, Poland passed a law discharging the claim of those who had obtained any compensation property and awarding 15% of their original entitlement, subject to a ceiling of 50, 000 Polish Zlotys, to those who had never received such compensation.
The Court recognized that Poland had to deal with an exceptionally difficult situation, given the historical and political background of the case and the social, legal and economic considerations at stake. In deciding that a fair balance had not been struck by the Polish authorities, the Court took into account the number of people involved and the substantial value of their claims. The Court also emphasized that Poland chose to reaffirm its commitment to compensate the claimants in the 1985 and 1997 Land Administration Acts. Furthermore, the Court stressed that, even in a very difficult context, a State cannot exercise its discretion against the Convention.
The Court found that Poland did not fulfill its obligation under Article 1 Protocol 1 to secure the peaceful enjoyment of possessions in an appropriate and consistent manner. The Court further found that Poland was entitled to expropriate property but was required to grant compensation ?reasonably related? to its value under Article 1 Protocol 1. The Court concluded that the applicant had had to bear a disproportionate and excessive burden not justified by a legitimate community interest.
The Court found that the decision was not limited to this particular applicant?s case but that a whole class of individuals was affected by it. Therefore, the Court observed that under Article 46 of the Convention, Poland was required to adopt measures to put an end to the violation and redress its effects under the supervision of the Committee of Ministers of the Council of Europe. The Court could no assess whether the December 2003 Act was an adequate measure because no practice of its implementation had been established. However, the Court concluded that for the group of Bug River claimants, like the applicant, who had already received partial compensation in kind, the Act was not a measure putting an end to the situation. The Court considered that Poland had to secure the effective and expeditious realization of the remaining Bug River claimants? entitlement or to provide equivalent redress.
Click here for the decision.
United States (U.S.) Supreme Court: Rasul et al. v. Bush, President of the United States (No. 03-334) (June 28, 2004)
The U.S. Supreme Court held that U.S. District Courts have jurisdiction to hear petitions challenging the legality of detention of foreign nationals captured abroad in connection with armed conflict and incarcerated at Guantanamo Bay, Cuba. The U.S. Supreme Court also held that U.S. District Courts have jurisdiction to receive the complaint in Al Odah et al. v. USA, (Summary available on ILIB) in which the petitioner invoked 28 U.S.C. §1350, the Alien Tort Statute.
Justice Stevens delivered the opinion of the Court. The petitioners in this case were two Australian citizens and twelve Kuwaiti citizens who were captured by U.S. armed forces in Afghanistan. The petitioners have been held on Guantanamo Bay since early 2002. The United States occupies the Guantanamo Bay Base pursuant to a 1903 Lease Agreement (Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903 U.S. Cuba, Art. III, T.S. No. 418) that was executed between the United States and the newly independent Republic of Cuba following the Spanish-American War. In accordance with the Lease Agreement, "the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over [the leased areas]" while "the Republic of Cuba consents that during the period of occupation by the United States...the United States shall exercise complete jurisdiction and control over and within said areas."
In their complaint, the petitioners alleged that they were being detained unlawfully as they had never been combatants against the United States nor had ever engaged in any terrorist acts. The Court of Appeals had dismissed the petitioners' cases in reliance on the Supreme Court case of Johnson v. Eisentrager, 339 U.S 763 (1950), in which German ?enemy aliens,? detained by American military authorities in Japan and later transferred to a U.S. military prison in Germany filed more than 200 habeas corpus petitions invoking the jurisdiction of the Supreme Court. The Eisentrager court denied the habeas petitions, finding that ?the privilege of litigation? did not extend to German prisoners in military custody who have no presence in "any territory over which the United States is sovereign."
Before reviewing Eisentrager, the Court first examined the history of habeas corpus federal jurisdiction contained in 28 U.S.C. §§2241(a), (c)(3) and noted that section 14 of the 1789 Judiciary Act authorized federal courts to issue the writ of habeas corpus to prisoners "in custody, under or by colour of the authority of the United States, or committed for trial before some court the same." It further cited INS v. St. Cyr, 533 U.S. 289, 301 (2001) noting that [a]t its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and in that context its protections have been strongest."
In regard to Eisentrager, the Court noted that "[n]ot only are petitioners differently situated from the Eisentrager detainees, but the Court in Einsentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners' constitutional entitlement to habeas corpus. ... The Court had far less to say on the question of the petitioners' statutory entitlement to habeas review." The Court found that its subsequent decisions have filled "the statutory gap that had occasioned Eisentrager's resort to 'fundamentals,' persons detained outside the territorial jurisdiction of any federal district court no longer need to rely on the Constitution as the source of their right to federal habeas review." The Court cited the case of Braden v. 30th Judicial Circuit Court of Ky, 410 U.S. 484, 495 (1973) in which it held that "the prisoner's presence within the territorial jurisdiction of the district court is not an 'invariable prerequisite' to the exercise of district court jurisdiction under the federal habeas statute." The Court held that Braden "overruled the statutory predicate to Eisentrager's holding" and therefore, Eisentrager could not preclude the exercise of §2241 jurisdiction over the petitioners' claims.
In regard to the petitioners' invocation of the Alien Tort Statute, 28 U.S.C. §1350, the Court held that this provision "explicitly confers the privilege of suing for an actionable "tort...committed in violation of the law of nations or a treaty of the United States" on aliens alone. The fact that petitioners in these cases are being held in military custody is immaterial to the question of the District Court's jurisdiction over their nonhabeas statutory claims."
Justice Kennedy, concurring in the judgment as far as it concluded that federal courts have jurisdiction, found that the Eisentrager framework was applicable, but that the circumstances of the Guantanamo detainees were distinguishable from the German detainees in Eisentrager. He noted that Guantanamo Bay "is in every practical respect a United States territory, and it is one far removed from any hostilities." The second critical distinguishable fact noted by Justice Kennedy was that unlike the detainees in Eisentrager, the Guantanamo detainees are subject to indefinite detention.
Justice Scalia and Justice Thomas dissented, finding that Eisentrager limited the scope of 28 U.S.C. §2241 to those within the territorial borders of the United States, and that Congress would have to enact an amendment to the statute in order for the Court to expand the scope of jurisdiction beyond U.S. territory.
Click here for the decision.
United States (U.S.) Supreme Court: Hamdi et al. v. Rumsfeld, Secretary of Defense, et al. (June 28, 2004)
On June 28, 2004, the U.S. Supreme Court vacated the judgment the Court of Appeals for the Fourth Circuit (?the Fourth Circuit?) and remanded the case for further proceedings. Justice O?Connor, delivering the opinion of the Court joined by the Chief Justice, Justice Kennedy and Justice Breyer, concluded that under due process a citizen detained by the U.S. government in the U.S. as an ?enemy combatant? had to be given a meaningful opportunity to challenge that detention before a neutral decisionmaker, even though Congress authorized such a detention in the circumstances alleged in this case.
Yasser Esam Hamdi, a U.S. citizen, was arrested in a combat zone in Afghanistan in 2001, transferred to the U.S. Naval Base in Guantanamo Bay in January 2002 and has been detained in the U.S. since April 2002. The government asserted he was an ?enemy combatant? and therefore could be detained in the U.S. until the end of the war without formal charges or proceedings under the Authorization for Use of Military Force (?the AUMF?) passed by Congress in September 2001. For a year and a half the government denied him the right to send or receive any communication beyond the prison where he was held and denied him access to counsel. In June 2002, Hamdi?s father filed a petition for a writ of habeas corpus naming as petitioners his son and himself as next friend, and alleging that his son?s detention violates the Fifth and Fourteenth Amendments. Hamdi?s father asserted that his son went to Afghanistan to do ?relief work? and could not have received any military training since he had been in that country for only two months before September 11, 2001. The district court found for the petitioners and ordered that counsel be given to Hamdi. However, the Fourth Circuit reversed and held that he was constitutionally detained. The Fourth Circuit found that ?because it was ?undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict,? no factual inquiry or evidentiary hearing allowing Hamdi to be heard or to rebut the government?s assertions was necessary or proper.?
After concluding Hamdi?s detention was lawful because authorized by an Act of Congress, the Court balanced the substantial competing interests to determine what process was due to the detainee. The Court weighed the private interest affected by the official action against the government?s asserted interest, including the function involved and the burdens the government would face in providing greater process. The Court acknowledged the importance of the government?s interest in ensuring that those who have fought with the enemy during a war do not return to battle against the U.S. but also emphasized the Court?s role as a check on the government?s discretion in such difficult times to protect substantial individual rights. The Court concluded that ?a citizen-detainee seeking to challenge his classification as an ?enemy combatant? must receive fair notice of the factual basis for his classification, and a fair opportunity to rebut the government?s factual assertions before a neutral decisiononmaker.?
Justice Souter joined by Justice Ginsburg concurred in the judgment but dissented with regard to the legality of Hamdi?s detention. Contrary to the plurality, which concluded that Hamdi?s detention was authorized by the AUMF, an Act of Congress, and thus met the requirements of §4001(a) if this statute applied to this case, Justice Souter found that the government did not prove the detention was legally authorized and thus concluded that Hamdi was unlawfully detained.
Justice Scalia joined by Justice Stevens dissented. He concluded that the Constitution?s Suspension Clause, Art. I, §9, cl. 2, allowed Congress to temporarily relax the usual protections and thus that the government?s actions authorized by an Act of Congress were an implementation and not a violation of the Constitution. However, Scalia held that Hamdi was entitled to a habeas corpus decree requiring his release unless criminal proceedings are brought or Congress had suspended the writ of habeas corpus.
Justice Thomas dissented and concluded that the Court did not have the ability to review the government?s decision to detain Hamdi and to balance the competing interests at stake.
Click here for the decision.
DECLARATIONS, RESOLUTIONS AND OTHER DOCUMENTS
Council of Europe: Protocol No. 14 amending the European Convention on Human Rights (May 13, 2004)
On May 13, 2004, the Council of Europe adopted Protocol No. 14 (?the Protocol?), which aims to improve the implementation at the national level and operation of the European Court of Human Rights (ECHR).
For a more effective implementation of the ECHR at the national level, the Protocol proposes that the Committee of Ministers of the Council adopt three Recommendations on training and university education, on the verification of compatibility with the Convention of legislation and practice and on the improvement of domestic remedies.
For a more effective operation of the ECHR, the Protocol makes different main changes to the European Convention on Human Rights (?the Convention?). First, the Protocol aims at increasing the Court?s capacity to filter out the ?hopeless? cases. A single judge, instead of a committee of three judges will declare inadmissible an application. Second, when the case is part of a series arising from the same defect at national level, the Protocol provides that a committee of three judges, instead of seven, may declare it admissible and decide it under a simplified procedure. Third, the Protocol proposes a new admissibility criterion. The Court could declare inadmissible an application when the applicant has not suffered a significant disadvantage provided that ?respect for human rights? does not require the Court to go fully into the case and examine its merits. However, the Court will not be able to reject a case if there is no judicial remedy in the country of the applicant concerned.
The Protocol also provides measures to assist the Committee of Ministers (?the Committee?) in its task of supervising the execution of judgments. The Committee will be able to decide by a two-thirds majority to bring proceedings before the Court if a State refuses to comply with the judgment. Furthermore, the Committee will be able to ask the Court to interpret a judgment.
The Protocol further provides that the judges will be elected for a period of nine years instead of six and includes a provision in view of the possible accession by the European Union to the Convention.
Click here for the document.
BRIEFLY NOTED
EU: Council adopted the Qualification Directive and the Asylum Procedures Directive (April 30, 2004)
The Council established the first phase of the Common European Asylum System with the agreement reached on the Qualification and the Asylum Procedures Directives on April 30, 2004. The purpose is to provide a framework for a common protection regime, based on existing international and Community obligations and current Member States practice. The directives are binding on current and new member States of the EU except for Denmark.
The Qualification Directive establishes the standards determining who is a refugee or requires international protection and which rights and benefits attach to each status. In order to reduce the differences in the Member States practice, the Directive clarifies that the actor of the persecution is irrelevant and can be a non-state actor such as a militia. The Directive also provides that those who have a well-founded fear of being persecuted because of their sexual orientation or gender can be recognized as refugees. The Directive contains measures to prevent the abuse of asylum systems by those who could be a threat to the security of the EU or who have committed serious crimes.
The Asylum Procedures Directive?s purpose is to ensure that all procedures at first instance in the EU are subject to the same minimum standards and to maintain consistency with international obligations. The Directive guarantees the right for prompt examination of the claims and the right to judicial review of negative decisions. The European Court of Justice will ultimately review the interpretation of the Directive by the Member States.
Click here for more information.
International Maritime Organization (?IMO?): Global Program on Maritime and Port Security
July 1, 2004 was the official deadline for implementation of the maritime security measures, adopted by the IMO in December 2002. The IMO launched its global technical co-operation program maritime security in January 2002, 11 months before the IMO Diplomatic Conference on Maritime Security adopted amendments to the International Convention for the Safety of Life at Sea (SOLAS) and the related International Ship and Port Facility Security Code (ISPS) in December 2002.
International Law In Brief (ILIB) - Copyright 2004