International Law In Brief

Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
April 21, 2008

©2008 American Society of International Law
(Educational copying is permitted with due acknowledgment)

RESOLUTIONS, DECLARATIONS AND OTHER DOCUMENTS·
	United Nations International Independent Investigation Commission Report of the Investigation Committee Examining the Assassination of Former Lebanese Prime Minister Rafik Hariri (March 28, 2008)
	International Covenant on Civil and Political Rights United Nations Human Rights Committee concluding observations and Responses of the U.S. Government (November 1, 2007)
	United Nations Office of the High Commissioner for Human Rights Commissioned Report: Project on a Mechanism to Address Laws that Discriminate Against Women (March 8, 2008)

JUDICIAL AND SIMILAR PROCEEDINGS·
	European Court of Human Rights Grand Chamber: Saadi v. Italy (February 28, 2008)
	United States: Harbury v. Hayden (D.C. Cir. April 15, 2008)

TREATIES, AGREEMENTS, AND RELATED DOCUMENTS·
	Draft Model Norwegian Bilateral Investment Treaty (December 19, 2007)

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RESOLUTIONS, DECLARATIONS, AND OTHER DOCUMENTS

United Nations International Independent Investigation Commission Report of the Investigation Committee Examining the Assassination of Former Lebanese Prime Minister Rafik Hariri (March 28, 2008)

Click here for document. (Approximately 10 pages).

In resolution 1595 the United Nations Security Council established an International Independent Investigation Commission (IIIC or Commission) to help the Lebanese authorities investigate the February 14, 2005 assassination of former Lebanese Prime Minister Rafik Hariri and others. In this document, United Nations Secretary-General Ban Ki Moon presents the Security Council with the tenth report of the IIIC since its inception. The report highlights that the IIIC has assisted in 20 investigations involving the deaths of 61 persons, and injuries to at least 494 others. It presents the political and security environment in which the IIIC functions, its progress, challenges that it faces, as well as next steps to prepare for the Special Tribunal for Lebanon.

The report describes a worsening security situation in Lebanon. On December 12, 2007, Brigadier General Francois Al-Hajj, Head of Operations of the Lebanese Security Forces and his driver, were killed in a bombing. The following month, Captain Wissam Eid of the Internal Security Forces, was also killed in an attack. United Nations Interim Forces in Lebanon (UNIFIL) were attacked on January 8, 2008 for the third time in three-quarters of a year. The IIIC has developed a witness protection system based upon international "best practices."

The IIIC notes that on the basis of evidence accessible to it, a network of people "the Hariri Network" acted to assassinate former Prime Minister Hariri and this network is connected to other cases within the purview of the IIIC. The IIIC plans to gather more evidence about the network, including its participants and scope, as well as its links with other attacks.

In addition to the troubled security environment, the report cites a number of other challenges facing the Commission. Cases have been added to its mandate without a correlated increase in its resources. The number of investigators and analysts remains lower than similar investigations.

The IIIC is taking a number of steps to prepare for the Special Tribunal for Lebanon. It has taken custody of physical items seized that are relevant to the Hariri investigation and is taking an inventory of them. In addition, it is cooperating with the Prosecutor General and the investigative judge in that case to eventually transfer documents and exhibits from the Lebanese officials to the Special Tribunal.

International Covenant on Civil and Political Rights United Nations Human Rights Committee concluding observations and Responses of the U.S. Government (November 1, 2007)

Click here for document. (Approximately 15 pages).

The ICCPR Human Rights Committee (Committee) requested on December 18, 2006 that the U.S. provide it with information relating to a number of specific recommendations within one year. This document contains the recommendations and the U.S. responses to them.

The Committee asked the U.S. to address issues outside of the territory of the United States with respect to secret detention, interrogation techniques, allegations of abuse, transfer, rendition, extradition, expulsion, refoulement of detainees, and the applicability of Article 3 of Common Article 3 of the Geneva Conventions. The U.S. responded by reaffirming its position that the ICCPR does not apply extraterritorially. It nonetheless provides as a "courtesy" additional information on issues about which the Committee inquired.

The Committee requested the U.S. to stop its practice of secret detention, close secret detention facilities, and permit the International Committee of the Red Cross immediate access to any person detained in connection with an armed conflict. It also requested the U.S. to provide detainees with full protection of the law regardless of their place of detention. The U.S. responded that it is engaged in an armed conflict with al Qaida, the Taliban and their supporters, and it is the law of armed conflict, rather than the ICCPR that is the applicable legal framework governing such detentions. The U.S. asserted that pursuant to the law of war, it does not have a legal obligation to notify the ICRC or provide it with access to enemy combatants held during the ongoing armed conflict.

The Committee asked the U.S. to ensure that persons will not be sent to another country if there are substantial reasons to believe that they would be at risk of being subjected to torture, or cruel, inhuman, or degrading treatment or punishment, and to investigate allegations where this has occurred. It urges the U.S. to modify its legislation and policies to ensure that this does not happen in the future, as well as provide appropriate remedies to victims. The U.S. responded that consistent with its obligations under Article 3 of the Convention Against Torture (CAT) it does not transfer or return individuals to nations where it is more likely than not that the person will be tortured. It specified however, that the U.S. was in disagreement with the Committee that Article 7 of the ICCPR should apply to non-refoulement.

The Committee inquired how the U.S. was implementing the Supreme Court's decision in Hamdan v. Rumsfeld. The U.S. responded that President Bush signed the Military Commissions Act (MCA) of 2006 into law on October 17, 2006, the purpose of which is to create procedures that are consistent with Hamdan and that would apply to military commission trials of alien unlawful enemy combatants and ensure that military commissions are consistent with Common Article 3's mandate that persons be tried by "a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples." In addition, the Secretary of Defense submitted a Manual for Military Commissions to Congress on January 18, 2007 that is designed to ensure that alien unlawful enemy combatants are prosecuted before "regularly constituted courts, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

United Nations Office of the High Commissioner for Human Rights Commissioned Report: Project on a Mechanism to Address Laws that Discriminate Against Women (March 8, 2008)

Click here for document. (Approximately 167 pages).

The United Nations (UN) Office of the High Commissioner for Human Rights Women's Rights and Gender Unit commissioned Dr. Fareda Banda to prepare a report examining the current UN treaty framework and how it addresses discriminatory laws and obtain national data on laws discriminating against women. Dr. Banda is a Reader in the laws of Africa at the University of London, School of Oriental and African Studies. She is also the author of Women, Law & Human Rights: An African Perspective (2005). The report arose out of governments' commitment at the 1995 Fourth World Conference on Women in Beijing to "revoke any laws that discriminate on the basis of sex."

To obtain her data Dr. Banda conducted interviews of UN human rights and agency officers in New York and Geneva as well as representatives of the Center for Reproductive Rights, Equality Now, and Human Rights Watch. She also developed a questionnaire that she disseminated to states in which she asks them about their constitution and laws, which international and regional human rights instruments they have ratified as well as whether they think a "special mechanism" should be created to address laws that discriminate against women.

The report begins by citing the international treaty framework providing for equality for women contained in the UN Charter preamble, the Universal Declaration of Human Rights (UDHR) articles 1 and 2, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic Social and Cultural Rights (ICSECR). The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Article 2 requires states parties to take all appropriate steps, including legislation, to amend or eliminate laws, regulations, customs, and practices that discriminate against women. The report notes that while most states have ratified at least one of these treaties demonstrating an acceptance of at least the notion of "equality," in practice many states still practice de jure or de facto discrimination against women. It notes that many states have adopted reservations to CEDAW provisions in Articles 9 (nationality), 15 (equality before the law), and 16 (marriage and family relations) and that a number of states have laws that discriminate against women in these areas. While Article 27 of the Vienna Convention on the Law of Treaties provides that states may not invoke domestic law as justification for their failure to meet treaty obligations, many states nonetheless cite national law, custom, and religion as the basis for their reservations to CEDAW.

In response to the question whether a special mechanism should be created to address laws that discriminate against women, Dr. Banda reported that the majority of responders favored the creation of a Special Rapporteur in this area. Dr. Banda noted that if the Rapporteur were to have a broader mandate than discriminatory laws she could also examine implementation of laws, access to justice, and enforcement. The Rapporteur could include examples of good state practices among both geographical regions and legal systems. Dr. Banda further recommended that the Rapporteur be given the same authority and resources as do other rapporteurs and could liaise with the Special Rapporteurs on the Rights of Women in the African Union and the Organization of American States.

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JUDICIAL AND SIMILAR PROCEEDINGS

European Court of Human Rights Grand Chamber: Saadi v. Italy (February 28, 2008)

Click here for document. (Approximately 48 pages).

The European Court of Human Rights Grand Chamber (Court) held unanimously that enforcing the decision to deport the applicant to Tunisia would breach Article 3 (prohibition of torture) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). The Court decided that the finding of a violation constituted sufficient satisfaction for the non-pecuniary damage suffered by the applicant under Article 41 of the Convention.

The case concerned a Tunisian national, Mr Saadi, a resident of Italy. The Italian government decided to deport him to Tunisia for national security reasons on suspicion of being a terrorist. Italy placed Mr Saadi in pre-trial detention for these charges in October 2002. Three years later on May 9, 2005, the Milan Assize Court found him guilty of the reclassified offence of international terrorism and sentenced him to a prison term of four years and six months. Mr Saadi was subsequently released on August 4, 2006. Shortly thereafter the Minister of the Interior issued another deportation order against him applying provisions of the Law of July 25, 2005 on "urgent measures to combat international terrorism" on August 8, 2006. Mr Saadi's subsequent requests for political asylum, a residence permit, and refugee status were rejected.

Mr Saadi submitted his case to the European Court of Human Rights on September 14, 2006. He argued that enforcement of his deportation to Tunisia would expose him to the risk of being subjected to torture or inhumane and degrading treatment in contravention of Article 3 of the Convention. He also asserted that his Article 6 right to fair trial had been violated by a military court in Tunisia when it convicted him in absentia to 20 years of imprisonment for terrorism-related offences on May 11, 2005. Furthermore, he claimed that his deportation would deprive his Italian partner and his son of his presence and support and thus violated his Article 8 right (respect for private and family life). Mr Saadi also argued that because his expulsion was not grounded on reasons to protect the public order or national security, it would violate his Article 1 of Protocol No. 7 rights (procedural safeguards relating to expulsion of aliens).

In its decision the Court expressed an understanding of states' need to protect their citizens from the threat of terrorism. At the same time, it dismissed the United Kingdom's (a "third-party intervener" pursuant to Article 36(2) of the Convention) argument that the possible prospect of a person posing a serious threat to the community as a whole should outweigh the risk that this person might be subject to ill-treatment or suffer harm once deported. By taking this position, the Court underlined states' obligation not to question the "absolute nature of Article 3" where there are substantial grounds to believe that the person in question was at a real risk of being subjected to such treatment in his home country. As the Court had repeatedly held, this obligation was not subject to any exceptions (see for example Chahal v United Kingdom, November 15, 1999). The Court likewise rejected the United Kingdom's argument that stronger evidence was needed to prove that a person, who presented a threat to national security, was more likely than not at risk of ill-treatment in the receiving country not to be deported in protection of national security.

The Court relied on reports of Amnesty International, Human Rights Watch and the U.S. State Department which described numerous and widespread incidents of torture and ill-treatment inflicted on persons accused of violating the 2003 Prevention of Terrorism Act. The reports explained that Tunisian authorities neither investigated nor pursued these allegations of torture, often inflicted on persons in police custody, but that instead Tunisia regularly used confessions obtained under such practices to secure convictions. The Court concluded that because Mr Saadi had been accused and convicted of international terrorism in Tunisia, he belonged to the group at risk of ill-treatment. The fact that the Tunisian authorities had not provided the Italian government with diplomatic assurances promising that Mr Saadi would not be subject to treatment contrary to Article 3 further led the Court to believe that he was at risk of ill-treatment. The Tunisian authorities submitted notes verbales which stated that Tunisian law guaranteed a fair trial and prisoners' rights and that Mr Saadi would be treated in strict conformity with these national laws and relevant international treaties and conventions to which Tunisia had acceded (if the proceedings against him would be were reopened) in July 2007. Nevertheless, the Court stated that even if the Tunisian authorities had provided diplomatic assurances to the degree requested by the Italian government, these assurances would not automatically be understood to provide a sufficient guarantee that Mr Saadi was in fact protected against the risk of ill-treatment and thus that Italy had complied with its Article 3 obligations.

Consequently, the Court held that the decision to deport Mr Saadi to Tunisia was in breach of Article 3. The Court did not find it necessary to decide whether in the event of Mr Saadi's expulsion to Tunisia, the Italian Government would also be in violation of Article 6, Article 8, and Article 1 of Protocol 7 because the Court had no reason to doubt that the Italian Government would not comply with its judgment.

United States: Harbury v. Hayden (D.C. Cir. April 15, 2008)

Click here for document. (Approximately 18 pages).

The United States Court of Appeals for the District of Columbia Circuit (Court) dismissed Jennifer Harbury's Federal Tort Claims Act (FTCA) and Westfall Act claims against Michael Hayden, Director of the Central Intelligence Agency (CIA), and other defendants pursuant to the political question doctrine. In the alternative, the Court affirmed the District Court's dismissal of the case because the FTCA bars suits based on injuries sustained in a foreign country.

Jennifer Harbury is a U.S. citizen and the widow of Efrain Bamaca-Velasquez, a Guatemalan citizen and officer in the rebel forces during Guatemala's civil war. Harbury maintained that the CIA hired and trained Guatemalan army officers to obtain information from the rebel forces through torture and convey this intelligence to the White House and State Department during the 1990s. She claimed that in 1992 Guatemalan army officers associated with the CIA captured, detained, tortured, and killed Bamaca to obtain information from him. Harbury initially sued numerous high-ranking U.S. officials in their personal capacities including the Director and Deputy Directors of the CIA, the Secretary of State, and the U.S. Ambassador to Guatemala. The District Court dismissed most of these claims in Harbury v. Hayden, 444 F.Supp. 2d 19, 24 (D.D.C. 2006); and Christopher v. Harbury, 536 U.S. 403, 405 (2002). The District Court dismissed Harbury's remaining common law tort claims against the individual defendants for conspiring to imprison, torture, and execute her husband, and causing her emotional distress and death, pursuant to Federal Rule of Civil Procedure 12(b)(1). Harbury appealed pursuant to the FTCA and the Westfall Act.

In its opinion, the Court discussed the FTCA, 28 U.S.C. §§ 1346(b), which provides a circumscribed waiver of the Government's Sovereign Immunity and permits plaintiffs to sue the U.S. in Federal Court for state law torts that government employees commit in the scope of their employment, but not in their individual capacities. When a plaintiff brings a state law tort case against a government employee, the Westfall Act, 28 U.S.C. § 2679(d)(1), permits the Attorney General to certify that the government employee acted within the scope of employment at the time the incident arose. After the Attorney General so certifies, the case becomes a FTCA claim against the U.S. government. There are a number of exceptions to the FTCA including that it does not apply when the claims arose in other countries. When one of the FTCA exceptions apply federal courts lack subject-matter jurisdiction over the case. Harbury claimed that because acts of torture can never come within an individual's scope of employment, the FTCA did not apply. The U.S. Government contended that this case presented a "political question" that the court should not hear. The Court concurred and followed its precedent in three cases, Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005); Gonzalez-Vera v. Kissinger, 449 F.3d 1260 (D.C. Cir. 2006); and Bancoult v. McNamara, 445 F.3d 427 (D.C. Cir. 2006); holding that this type of claim presented a nonjusticiable political question which would have required the Court to examine the soundness of underlying foreign policy decisions.

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TREATIES, AGREEMENTS, AND RELATED DOCUMENTS

Draft Model Norwegian Bilateral Investment Treaty (December 19, 2007)

Click here for document. (Approximately 25 pages).

Norway issued a draft model bilateral investment treaty (BIT) for public comment December 19, 2007. The draft model BIT is notable in a number of respects. Its preambular language underscores Norway's desire to promote transparency in economic cooperation between the parties as well as to protect health, safety, the environment, and international labor rights. It emphasizes the importance of corporate social responsibility and reaffirms the parties' commitment to democracy, the rule of law, human rights and fundamental freedoms in accordance with their duties under the United Nations Charter and the Universal Declaration of Human Rights. It notes the determination of the parties to prevent and fight corruption, including bribery in international trade and investment.

Articles 19, 21, and 31 address transparency. Article 19 requires the tribunal to make publicly available all documents either submitted to it or that it issues. Parties to the dispute may designate certain information as confidential if it is not generally known or accessible to the public; or, if it were it to be released it would cause prejudice to an "essential interest" of the parties or an individual or entity. Article 19 also requires the tribunal to hold hearings open to the public; but Article 21 permits it to close hearings wholly or in part. Article 21 gives the tribunal the authority to allow and consider submissions by amici if it determines that such submissions are both factually and legally directly relevant. Article 31 requires the parties to publish or otherwise make available their laws, regulations, and international agreements that may affect the agreement. Article 32 requires the parties to encourage investors to manage their investments in compliance with OECD guidelines for corporate social responsibility for multinational enterprises and take part in the United Nations Global Compact.

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