Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
June 18, 2008
©2008 American Society of International Law
(Educational copying is permitted with due acknowledgment)
JUDICIAL AND SIMILAR PROCEEDINGS
United States Supreme Court: Boumediene v. Bush (Together with Al Odah v. United States) (June 12, 2008)
Click here for document. (Approximately 134 pages).
Justice Kennedy writing for the majority in a decision with which Justices Breyer, Ginsburg, Souter, and Stevens joined. Justice Souter wrote a concurring opinion with which Justices Breyer and Ginsburg joined. Chief Justice Roberts wrote a dissenting opinion with which Justices Alito, Scalia, and Thomas joined. Justice Scalia wrote a dissenting opinion with which Chief Justice Roberts, Alito, and Thomas joined.
In a long-awaited international law case of the term, the United States Supreme Court held that because the procedures Congress provided in the Detainee Treatment Act (DTA) of 2005, 119 Stat. 2739, do not provide an adequate and effective substitute for habeas corpus, § 7 of the Military Commissions Act (see 45 ILM 1246 (2006)) acts as an unconstitutional suspension of the writ. The Court further held that the Suspension Clause of the United States Constitution applies to the detainees at Guantanamo Bay, Cuba and that the detainees may petition for habeas relief directly in the District of Columbia Circuit without first having to seek review of the Combatant Status Review Tribunals' (CSRT) determinations. The Court thus reversed and remanded the decision of the Court of Appeals below.
The petitioners are aliens deemed "enemy combatants" and held by the United States at Guantanamo Bay, Cuba. They petitioned for a writ of certiorari to address the issue whether they have the constitutional privilege of habeas corpus which is not supposed to be withdrawn except pursuant to the Suspension Clause, Art. I, §9, cl. 2 of the United States Constitution.
The Court's jurisprudence with respect to the detainees at Guantanamo has evolved over the last several years. In Rasul v. Bush, 542 U.S. 466 (2004); it held that statutory habeas corpus applied to the detainees. Congress then enacted the Detainee Treatment Act (DTA) of 2005 which amended the federal habeas statute 28 U.S.C §2241 to add a new subsection (e) preventing courts from having jurisdiction to consider applications for writs of habeas corpus from Guantamo detainees. The Court responded in Hamdan v. Rumsfeld¸ 548 U.S. 557 (2006); holding that this subsection did not apply to individuals whose petitions for habeas were pending when Congress enacted the DTA. Congress subsequently passed the Military Commissions Act of 2006 (MCA) which provided in § 7 that the so-called "habeas stripping" provisions applied to "all cases, without exception, pending on or after the date of the enactment of this Act, which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001." The Courts of Appeals decision that MCA §7 stripped all federal courts from the jurisdiction to review the detainees' habeas petitions (see 476 F. 3d 981 (2007) was the subject of the Court's review for which it granted certiorari.
The Court rejected the government's argument that the detainees, as alien enemy combatants in territory outside of the U.S., lacked constitutional rights and the privilege of habeas corpus. It traced the history of the writ and noted that "[w]e know that at common law a petitioner's status as an alien was not a categorical bar to habeas corpus relief." The Court also distinguished de jure sovereignty, from the type of de facto sovereignty that the United States maintains over the base because of its lease with Cuba.
The Court examined its Johnson v. Eisentrager, 339 U.S. 763 (1950); decision and applied a three prong test to determine whether the Suspension Clause should apply to the detainees at Guantanamo Bay: 1) the citizenship and status of the detainee and the adequacy of the process through which their status was determined; 2) the nature of the site where apprehension and detention occurred; and 3) the practical obstacles in resolving the detainee's entitlement to the writ. While the detainees are aliens, in some cases they contest that they are enemy combatants. Unlike in Eisentrager, there was no adversarial process to determine the legality of the detainees' detention. The defendants in Eisentrager also had a number of procedural protections that the detainees in the Combatant Status Review Tribunal (CSRT) proceedings lacked. For example, while detainees are permitted "personal representatives" in CSRTs these individuals are not the detainees' lawyer or advocate. The government's evidence is presumed to be valid; and the detainees? ability to present "reasonably available evidence" limits their ability to rebut the government's evidence. While the both the defendants in Eisentrager and the detainees were apprehended outside of the sovereign territory of the United States, the defendants in Eisentrager were held at Landsberg prison in Germany where the U.S. had neither absolute nor indefinite control unlike the situation of the Guantanamo Bay naval base.
Nor did the Court find the third factor prohibitive here, noting that while habeas proceedings may necessitate expenditure of funds and the diversion of military personnel from other work, that is always the case with complying with judicial processes. The Court did acknowledge that until this holding it had never held that noncitizens detained by the U.S. government over which another nation holds de jure sovereignty possess any rights under the U.S. Constitution, but it emphasized the lack of an historic parallel between other cases such as Eisentrager and the ones before it. It thus held that the Suspension Clause, Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay.
The Court next examined whether Congress provided an adequate substitute for habeas corpus in the DTA. It noted that while normally it would defer to the Court of Appeals to review this question, here it would not do so because of the exceptional nature of these cases, both because of the length of time the detainees have been held without access to a "meaningful judicial forum" as well as the gravity of the separation of powers issues present. The Court opined that a remand here thus would be likely to delay "ultimate resolution" of the issue by the Court. The Court held that the petitioners had met their burden of demonstrating that the DTA review process is on its face an inadequate substitute for habeas corpus because it does not permit the Court of Appeals to consider newly discovered evidence or evidence outside of the CSRT record. This constrains the detainees by limiting the scope of collateral review to a record that may be only partial, or inaccurate. It thus held that the MCA §7 results in an unconstitutional suspension of the writ of habeas corpus.
In his concurrence, Justice Souter emphasizes two points that "one might overlook after reading the dissents." He describes the Court's decision in Rasul v. Bush, 542 U.S. 466 (2004); in which it held that statutory habeas jurisdiction extended to the detainees at Guantanamo Bay. After Congress enacted the DTA and eliminated statutory habeas jurisdiction in these cases, there would either be "constitutionally based jurisdiction, or none at all." He asserts that the Court's decision in Boumedienne could hardly be a "bolt out of the blue" for constitutional habeas matters given its reliance upon the historical background of habeas with respect to statutory matters in Rasul. Justice Souter also responds to the dissent's accusation that the majority is being precipitous by emphasizing that some of the detainees have been held for six years, and four years have elapsed since the Rasul decision. He states:
[a]fter six years of sustained executive detention in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today's decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of courts to provide it, mean something of value both to prisoners and to the Nation.
In his dissent, Chief Justice Roberts opines that the majority "strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." He criticizes the majority opinion for rejecting "out of hand" these procedures without specifying which due process rights the detainees hold and how the statute fails to vindicate them. In his view, the crucial question is whether the system that the political branches created protects the rights of the detainees, and he answers this in the affirmative. He opines that the current system safeguards any constitutional rights that aliens captured abroad and detained as enemy combatants may possess and that the Court should not have granted certiorari in these cases. He asserts that the detainees should have been required to exhaust their remedies before the Court granted certiorari. He states that the DTA provides the Guantanamo detainees with an adequate opportunity to contest the bases of their detentions and that is "all that habeas corpus need allow." Chief Justice Roberts notes that there a number of avenues for the detainees to obtain release rather than by a writ of habeas corpus including through the Court of Appeals, the CSRTs, and by order of the head of Administrative Tribunals. To him, these mechanisms meet the majority's requirement that a tribunal substituting for a habeas court have the power to release a prisoner.
In his dissent Justice Scalia opines that the majority's intervention in what he views as a military matter is ultra vires because the writ of habeas corpus has never applied to aliens abroad and thus the Suspension Clause of the Constitution is inapplicable here. He asserts that the Court's opinion will result in "disastrous consequences" including causing more Americans to be killed, and enemy combatants returned to the battlefield resulting in the deaths of innocent civilians.
United States Supreme Court: Munaf v. Geren (June 12, 2008)
Click here for document. (Approximately 35 pages).
Chief Justice Roberts wrote the opinion of a unanimous Court. Justice Souter wrote a concurring opinion with which Justices Breyer and Ginsburg joined.
In a unanimous decision the United States Supreme Court held that U.S. courts have jurisdiction to entertain the habeas petitions of American citizens challenging their detention in Iraq by the Multinational Force in Iraq (MNF-I); but that, in these circumstances, habeas corpus cannot provide the petitioners with relief.
The MNF-I is an international coalition force in Iraq that is comprised of troops representing 26 nations operating at the request of Iraq under U.S. command and pursuant to United Nations Security Council Resolutions. Under the UN mandate, MNF-I forces may detain persons who are alleged to have perpetrated hostile or warlike acts in Iraq, pending Iraqi investigation and prosecution in Iraqi courts. MNF-I forces are currently holding approximately 24,000 detainees.
The petitioners are Shawqi Omar and Mohammed Munaf, American citizens who traveled to Iraq voluntarily. U.S. military forces captured and detained Omar during a raid of a home in Baghdad in 2004, believing him to be associated with the late Al-Qaeda leader in Iraq Abu Musab al-Zarqawi, and involved in planning and orchestrating kidnappings in Iraq. A three member MNF-I tribunal held that Omar constituted a threat to the security of Iraq and found that he had committed hostile and warlike acts and was an enemy combatant. The Combined Review and Release Board (CRRB) also conducted a hearing of Omar's and held that continued detention was appropriate because he posed a threat to Iraqi security. His wife and son subsequently filed a next friend petition for habeas corpus in the District Court for the District of Columbia (see Omar v. Henry, 479 F.3d 1 (2007)). Omar's attorney then sought and obtained a preliminary injunction preventing Omar's removal from U.S. or MNF-I custody. The U.S. government appealed and the Court of Appeals affirmed the District Court's order holding that the injunction could only prevent Omar's release to Iraqi custody but that the writ of habeas could not enjoin Omar's release.
Petitioner Munaf traveled to Iraq with a group of Romanian journalists to serve as their translator and guide. The group was kidnapped and held for two months. After their release the MNF-I detained Munaf on suspicion of organizing the kidnappings. A three judge MNF-I panel held a hearing and determined that Munaf posed a serious threat to Iraqi security, and referred his case to the Central Criminal Court of Iraq (CCCI) for investigation and prosecution. During his trial, Munaf admitted that he helped to orchestrate the kidnappings. While he later recanted, The CCCI found him guilty of kidnapping. The Iraqi Court of Cassation vacated his conviction on appeal remanded the case to the CCCI for additional investigation but instructed that Munaf should remain in custody pending the outcome of additional proceedings. Munaf's sister filed a next-friend petition for habeas corpus in the District Court for the District of Columbia (see Mohammed v. Harvey, 456 F. Supp. 2d 115 (2006)). The District Court dismissed, holding that it lacked jurisdiction pursuant to Hirota v. MacArthur, 338 U.S. 197 (1948). The Court of Appeals affirmed. The Supreme Court granted certiorari and consolidated the two cases.
In its analysis the Court emphasized that its holding applied only to American citizens and the statutory scope of the writ of habeas corpus and did not address either jurisdiction with respect to aliens or the constitutional reach of the writ. It rejected the government's reliance upon Hirota, noting that Hirota involved Japanese citizens detained in Japan seeking permission to file writs of habeas corpus and the Court has held that habeas jurisdiction may depend upon citizenship. (See Rasul v. Bush, 542 U.S. 466 (2004)). The Court held that the District Court erred by granting a preliminary injunction without considering the merits of the underlying habeas petition because the District Court failed to consider whether there was a likelihood of success on the merits of the preliminary injunction; instead concluding that the issues were so difficult as to make them appropriate for more "deliberative investigation." The Court rejected the petitioners' argument that they have a "legally enforceable right" not to be transferred to Iraqi authority for criminal prosecution under both the Due Process Clause and the Foreign Affairs and Restructuring Act of 1998 and because they are innocent U.S. civilians unlawfully detained by the U.S. in violation of the Due Process Clause. The Court held that the detainees' claims fail to state grounds upon which relief may be granted; should have been promptly dismissed; and no injunction should have been entered because the petitioners' requests would interfere with Iraq's sovereign right to punish offenses within its borders. The Court stressed that habeas is governed by equitable principles and prudential concerns may require a court not to exercise its habeas authority. Here, the petitioners are not seeking merely release because that would allow the Iraqi authorities to try them. Instead, they are seeking an order mandating that the U.S. protect them from the sovereign government exercising its authority to try them for alleged crimes perpetrated in the sovereign's territory.
While Munaf contended that he would be likely to face torture were he to be released to Iraqi custody, the Court noted that this is an issue for the political branches rather than the judiciary, and it cited Bassiouni, International Extradition: United States Law and Practice 921 (2007). It highlighted that the State Department has determined that the Iraqi Justice Ministry generally meets international standards for the basic needs of prisoners.
In his concurrence Justice Souter emphasized that the specific circumstances of this case are key to the Court's holding. Notably: 1) that the petitioners voluntarily traveled to Iraq; 2) that U.S. troops are holding them in the territory of an ally of the U.S. during ongoing hostilities involving our troops; 3) that the government of Iraq has decided to prosecute them for crimes committed in its territory; and 4) that the U.S. State Department has determined that the Iraqi Justice Ministry and its prison and detention facilities generally meet the international standards for basic prisoner needs. The Court reserves judgment were key facts different such as an "extreme case" where the Executive determined that a detainee in U.S. custody was likely to be tortured but transfers him anyway; or where the probability of torture was well-documented.
International Criminal Court: Statement of the Prosecutor to the United Nations Security Council pursuant to UN Security Council Resolution 1593 (June 5, 2008)
Click here for document. (Approximately 9 pages).
Luis Moreno Ocampo, Prosecutor of the International Criminal Court, reported June 5, 2008 that he will present a second case to the ICC Judges regarding the situation in Darfur in July. Ocampo addressed the Council pursuant to Security Council Resolution 1593 in which the Security Council, acting pursuant to Chapter VII of the United Nations Charter, referred the situation in Darfur to the ICC. The resolution also requires him to report to the Council every six months on actions taken to implement the resolution.
In his statement, Ocampo recalled that it was ten years ago that countries adopted the Rome Statute creating the ICC, and in 2005 the Council referred the situation in Darfur to the Council to convey the message that there can be no impunity for perpetrators of war crimes in Darfur. Nonetheless, he described the region of Darfur as a "crime scene" with girls being raped and children dying after their schools are bombed. While Sudan originally claimed that it would investigate and prosecute the perpetrators of the crimes in Darfur, and pursuant to the principle of complementarity the ICC Prosecutor has a duty not to intervene when nations are conducting proceedings, Ocampo stated that he has seen no evidence during the past three years that Sudan is conducting proceedings, and indeed, the government of Sudan asserted that there are none even after the ICC issued arrest warrants against Ahmad Harun, former Minister of State for the Interior, and ali Kushayb, a Militia Janjaweed Leader in April 2007 for war crimes and crimes against humanity. In December 2007 Ocampo opened two new investigations, one showing a pattern of attacks by Sudanese officials against civilians, and the other on the Haskanita attack allegedly perpetrated by the rebels which resulted in 10 peacekeepers being killed. He requested that the Security Council request that Sudan comply with SCR 1593, arrest Harun and Kushayb, and stop the crimes against civilians.
Seventh Report of the Prosecutor of the International Criminal Court to the UN Security Council Pursuant to UNSCR 1593 (2005).
Click here for document. (Approximately 20 pages).
Luis Moreno Ocampo, Prosecutor of the International Criminal Court (ICC), submitted his report on the current situation of Darfur, Sudan to the UN Security Council as required by Security Council Resolution 1593. It describes in greater detail the information that Ocampo presented to the Security Council in his statement above. The Government of Sudan has failed to initiate proceedings against those responsible for the crimes perpetrated against civilians. While the ICC Pre-Trial Chamber issued arrest warrants in April 2007 against Ahmad Harun and Ali Kushayb for 51 counts of crimes against humanity and war crimes and forwarded the warrants to the government of Sudan in June 2007, it has not responded and has failed to cooperate with the court. In October 2007 the Registry of the Court sent a request to the government of Sudan inquiring about its activities to execute the arrest warrants, and Sudan has not responded. Ahmad Harun is serving as Minister of State for Humanitarian Affairs and is a member of the Sudanese monitoring group overseeing the deployment of the African Union/United Nations hybrid peacekeeping mission in Darfur. Ali Kushayb remains engaged with his military unit. Civilians, particularly the Fur, Massalit, and Zaghawa continue to be targeted for crimes including aerial bombardment of villages; and rapes torture and killing. Government of Sudan(GoS) forces and militia Janjaweed attacked the village of Abu Suruj February 8, 2008 with helicopters, troops, and burned down the majority of the village. About 28 people were killed in this attack and thousands of civilians fled. Witnesses reported that GoS troops raped girls after the attack. On February 18, 2008 GoS planes bombed the villages of Aro Sharow, Kandare and Kurlongo which resulted in the deaths of at least 115 and the displacement of more than 30,000 people. The United Nations condemned the attacks and emphasized that the GoS used disproportionate force and failed to distinguish between military and civilian targets. On May 4, GoS planes bombed a market and school, killing thirteen including 6 children.
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Briefly Noted: International Criminal Court: Trial Chamber imposes a stay on the proceedings of the case against Thomas Lubanga Dyilo (June 13, 2008)
Click here for document. (Approximately 44 pages).
The Trial Chamber of the International Criminal Court (ICC) imposed a stay on the proceedings of the trial of Thomas Lubanga Dyilo on June 13, 2008, and scheduled a hearing for June 24, 2008 to consider his release after determining that the prosecution did not disclose more than 200 potentially exculpatory documents to the defense. The trial of Lubanga Dyilo was scheduled to begin June 23, 2008 and was to be the first trial of the ICC. The Trial Chamber determined that the prosecution had used Article 54(3)(e) of the Rome Statute which permits the Prosecutor, in exceptional circumstances, to receive documents confidentially which are not used for trial but for generating other evidence. Lubanga Dyilo, the founder and leader of the Union des patriotes congolais was arrested March 17, 2006 and surrendered to the ICC. Pre-Trial Chamber I confirmed the Prosecutor's charges against Lubanga Dyilo on January 29, 2007, which include war crimes of conscripting and enlisting children under the age of 15 in violation of the Rome Statute to serve in the Forces Patriotiques pour la Liberation du Congo.
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