International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
July 3, 2008
©2008 American Society of International Law
(Educational copying is permitted with due acknowledgment)
JUDICIAL AND SIMILAR PROCEEDINGS
International Criminal Court: Trial Chamber I Orders the Interim Release of Thomas Lubanga Dyilo (July 2, 2008)
Click here for document. (Approximately 15 pages).
Trial Chamber I of the International Criminal Court ordered the interim release of Thomas Lubanga Dyilo on July 2, 2008 because a fair trial of the accused is "impossible." The order of release will not be enforced until the five day time limit to file an appeal has expired. If an appeal is filed within the 5 day time limit that also requests the motion for release to be suspended, Dyilo will not leave detention until the Appeals Chamber decides whether to suspend the order granting release.
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.
International Criminal Tribunal for Rwanda: Prosecutor v. Kanyarukiga: Decision on Prosecutor's Request for Referral to the Republic of Rwanda (June 6, 2008)
Click here for document. (Approximately 30 pages).
The Trial Chamber (Court) designated under Rule 11 bis of the International Criminal Tribunal for Rwanda (ICTR) denied the Prosecution's request to transfer Gaspard Kanyarukiga to Rwanda on June 6, 2008. It held that that despite the notable progress Rwanda has made to improve its judicial system, the Court remains concerned about Kanyarukiga's ability to obtain a fair trial in Rwanda both because witnesses in and outside of Rwanda will be reluctant to testify; and because if Kanyarukiga is sentenced to life imprisonment in Rwanda he may face substantial periods of solitary confinement in violation of Article 7 of the International Covenant on Civil and Political Rights (ICCPR). To date the ICTR has not transferred any defendants to stand trial in Rwandan national courts.
Kanyarukiga was a businessman in the Kigali and Kibuye prefectures in 1994. He was indicted on March 4, 2002 with genocide or in the alternative complicity to genocide, conspiracy to commit genocide, and extermination as a crime against humanity. He was arrested in South Africa in July 2004. At his initial appearance before the ICTR on July 22, 2004, he pled not guilty to all counts. On September 7, 2007 the Prosecutor requested that Kanyarukiga's case be transferred to trial in Rwanda. The Defense opposed this referral on November 16, 2007. The President of the ICTR designated a Chamber under Rule 11 bis of the Rules of Procedure and Evidence to consider the issue. The Chamber granted amicus curiae status to Rwanda, Human Rights Watch, the International Criminal Defense Attorney's Association (ICDDA) and the Kigali Bar Association, which provided written submissions on Rwanda's ability to satisfy the Rule 11 bis requirements. Rule 11 bis permits a designated Trial Chamber to refer a case to a competent national jurisdiction if the accused will receive a fair trial and the death penalty will not be imposed or implemented.
Rwanda and the Kigali Bar Association supported the Prosecutor's request, asserting that Kanyarukiga would receive a fair trial in Rwanda. By contrast, the Defense, Human Rights Watch, and the ICDDA opposed the request on a number of grounds, the majority of which the Court rejected. The Court concurred however, that Kanyarukiga might not be able to obtain a fair trial because the Defense will have difficulty obtaining witnesses to come to Rwanda because they will be afraid to testify on behalf of an alleged génocidaire. Further, while witnesses outside of Rwanda could testify via video-link, the Court stated that it would be an "unprecedented situation" if most or all of the witnesses for one side were to be heard via video-link. Another factor that led the Court to reject the Prosecution's request to transfer the case to Rwanda was the lengthy solitary confinement to which Kanuyarukiga might be subjected in Rwanda. While the Court noted that Rwanda abolished capital punishment in 2007, the potential for Rwanda to impose lengthy periods of solitary confinement in violation of Article 7 of the ICCPR remained a possibility.
Simon v. Iraq (D.C. Cir. June 24, 2008)
Click here for document. (Approximately 20 pages).
The Federal Court of Appeals for the District of Columbia (Court) held that the plaintiffs may bring suit pursuant to 28 U.S.C.§ 1605(a)(7), the exception in the Foreign Sovereign Immunities Act (FSIA) permitting lawsuits against state sponsors of terrorism. It thus remanded to the District Court for further proceedings.
The plaintiffs in two consolidated cases brought suit against Iraq, the Iraqi Intelligence Service, and Saddam Hussein, claiming that they had been taken hostage and tortured during the first Gulf War in 1990-91 in violation of local, federal, and international law. The District Court dismissed the suits, concurring with Iraq and the Iraqi Intelligence Service that the suits were untimely and violated the ten year statute of limitations set forth in §1605(f). The plaintiffs appealed. On appeal, Iraq claimed that the enactment of the National Defense Authorization Act (NDAA)(Pub. L. 110-181) and the political question doctrine required dismissal of the suits.
The Court disagreed. After Congress passed the NDAA in 2008 (the Act) the president waived the application of §1083 of the Act to Iraq and its agencies and instrumentalities because it would have exposed Iraq to liability of millions of dollars and potentially interfered with its reconstruction efforts. Iraq contended that the Court should dismiss the suits for lack of jurisdiction because §1083(b)(1) of the Act repealed FSIA §1605(a)(7) upon which the plaintiffs relied to bring their suits. Because §1083 specifically mentioned pending cases however, the Court refused to accept Iraq's argument, noting that it did not have to apply either the presumption against the retroactive application of newly enacted legislation that changes the existing rights of the parties or the presumption in favor of applying a federal statute removing jurisdiction with respect to pending cases. The Court thus held that courts retain jurisdiction pursuant to §1605(a)(7) over cases that were pending under that section when Congress enacted the NDAA even though Iraq has not been designated to be a "state sponsor of terrorism" since 2004 (see 69 Fed. Reg. 61,702 (Oct. 20, 2004).
The Court applied the equitable tolling principles in 28 U.S.C. §1605(f) to reject Iraq's argument that the cases should be dismissed for violating the ten year statute of limitation in §1605(f) because while the alleged torts against the plaintiffs occurred in 1990 and 1991 the plaintiffs did not bring their lawsuits until 2003. The Court explained that the statute permits the tolling of the statute to include the time period during which the foreign state was immune from suit. Congress amended the FSIA to include the terrorism exception in 1996, before that time Iraq was immune from suit. Thus, cases filed in 2003 were still timely because the statutory time period would not toll until 2006.
The Court likewise rejected Iraq's argument that the political question doctrine compelled it to dismiss the case noting that Iraq failed to show how adjudicating the issue whether Iraq committed acts of torture and hostage-taking in 1990-1991 required the Court to answer questions that the Constitution refers to the political branches.
Parhat v. Gates (D.C. Cir. June 30, 2008)
Click here for document. (Approximately 39 pages).
The United States Court of Appeals for the District of Columbia (Court) held June 20, 2008 that the determination of a Combatant Status Review Tribunal (CSRT) that Huzaifa Parhat is an "enemy combatant," is not valid and that the record upon which the determination was based was insufficient and not able to support the "preponderance of the evidence" standard that the Detainee Treatment Act of 2005 (DTA) required.
The Court stated "[t]o affirm the Tribunal's determination under such circumstances would be to place a judicial imprimatur on an act of essentially unreviewable executive discretion. That is not what Congress directed us to do when it authorized judicial review of enemy combatant determinations under the Act." It thus ordered the government to release Parhat, transfer him, or expeditiously convene a new CSRT to weigh evidence in a way that is consistent with the Court's opinion. The Court emphasized that its decision was without prejudice to Parhat's ability to seek release through a writ of habeas corpus pursuant to the Supreme Court's decision Boumedienne v. Bush¸ slip. op. at 65-66 (U.S. June 12, 2008). The Court further denied without prejudice, the government's motion to protect from public disclosure all of the nonclassified information titled "law enforcement sensitive" and the names and identifying information of all U.S. government personnel in the record because the Court was not satisfied with the generic rationale that the government provided for its request.
Parhat is an ethnic Uighur who fled the People's Republic of China to a camp in Afghanistan in June 2001. U.S. airstrikes destroyed the camp in mid-October 2001. Parhat and seventeen other Uighurs left the camp and crossed into Pakistan where local villagers turned them over to Pakistani officials who in turn released them to the U.S. military. In June 2002 the U.S. sent Parhat to the naval base at Guantanamo Bay, Cuba. A military officer from the Department of Defense Criminal Investigation Task Force recommended that Parhat be released in 2003.
The Deputy Secretary of Department of Defense created the Combatant Status Review Tribunals (CSRTs) through an order in a memorandum to the Secretary of the Navy in July 2004. Upon order of the Secretary of Defense to oversee and operate the CSRTs, the Secretary of the Navy subsequently developed standards and procedures set forth in an order for the operation of the CSRTs to ascertain whether detainees meet the criteria to be designated "enemy combatants." The memorandum and order define "enemy combatant" as someone who was part of or supported the Taliban or al Qaida forces, or associated forces engaged in hostilities against the United States or its coalition partners. It included someone who has committed a belligerent act or directly supported hostilities in aid of enemy forces.
A CSRT held a hearing for Parhat on December 6, 2004 at which he denied any association with al Qaida or the Taliban and stated that he viewed China, and not the U.S. as his enemy. Nonetheless, the CSRT found Parhat to be an "enemy combatant" because he was affiliated with a Uighur independence movement, the East Turkistan Islamic Movement (ETIM) which is associated with al Qaida and the Taliban because an ETIM leader ran the camp at which Parhat stayed and while there trained him how to use a rifle and a pistol. The CSRT nevertheless described Parhat as an "attractive candidate for release," and urged that he not be released to China because he ?"almost certainly" would face harsh treatment there.
Parhat filed a petition for a writ of habeas corpus in July 2005, but the District Court stayed the case pending the resolution of appeals of other Guantanamo detainees including Boumedienne v. Bush. Congress passed the Detainee Treatment Act of 2005 (DTA) in December 2005, Pub. L. 109-148, 119 Stat. 2680 (2005), (reprinted at 10 U.S.C. §801 note). The DTA granted the Court exclusive jurisdiction to determine the validity of any final determination of a CSRT that an alien is properly detained as an "enemy combatant." On November 1, 2007 Parhat filed a motion requesting the Court to review the CSRT's determination based solely upon its record and asserted that the materials before the CSRT were sufficient to show that he was not an enemy combatant. He contended that the CSRT record fails to support the finding that he is an "enemy combatant" and thus was not consistent with the Secretary of Defense procedures for CSRTs. The government moved the Court to designate certain unclassified information as "protected."
In its analysis the Court reviewed the definition of "enemy combatant" as applicable to Parhat. The Court was particularly troubled by the government's reliance upon the assertions of unidentified individuals to designate Parhat as an enemy combatant. The Court thus concluded that it could not test the reliability of those assertions and they cannot sustain the determination that Parhat is an enemy combatant. The Court noted that § 1005()e(2)(A) of the DTA limited its review to whether the CSRT status determination was consistent with the standards and procedures that the Secretary of Defense created including the requirement that the CSRT conclusion be supported by a preponderance of the evidence; and it created a rebuttable presumption in favor of the government's evidence. The Court opined that when it could not assess the reliability of the government's evidence, a rebuttable presumption becomes an irrebuttable and invalid one. While the Court emphasized that it is not suggesting that hearsay evidence is never reliable, only that it must be used in a form that permits the CSRT and the Court to be able to test its reliablility. The Court thus held that the evidence before the CSRT was insufficient to sustain the conclusion that Parhat is an enemy combatant.
With respect to the government's motion to protect from public disclosure all of the nonclassified information titled "law enforcement sensitive" and the names and identifying information of all U.S. government personnel in the record, the Court held that the government failed to provide sufficient specific reasons to support the need to protect the information. Rather, the government provided the Court with "spare, generic assertions." The Court therefore denied the government's motion without prejudice and ordered it to file a new motion within 30 days with a marked copy of Parhat's CSRT record, showing which portions it seeks protected status.
United States. v. Tsui (9th Cir. June 25, 2008)
Click here for document. (Approximately 10 pages).
The Federal Court of Appeals for the Ninth Circuit (Court) held that Frank Tsui is a naturalized United States citizen whom police arrested in Los Angeles on December 4, 2003 and extradited to South Korea. A South Korean court convicted him of conspiracy to traffic in narcotics and sentenced him to a five year prison sentence with labor. The U.S. and South Korea subsequently approved Tsui's request to be transferred to the U.S. to serve the remainder of his sentence.
The U.S. and South Korea are states parties to the Council of Europe Convention on the Transfer of Sentenced Persons (Convention), 35 U.S.T. 2867, T.I.A.S. No. 10824 (July 1, 1985). Article 10 of the Convention provides that the nation that receives a prisoner shall be bound by the transferring state's nature and duration of the sentence.
The U.S. Probation Office for the Central District of California prepared a "treaty transfer report" indicating that the South Korean crime of "conspiracy to traffic narcotics was most analogous to the U.S. federal crime at 21 U.S.C. §841 of "conspiracy to possess with intent to distribute a controlled substance." It set forth a range of imprisonment time from 87 to 108 months but emphasized that the joined period of imprisonment and supervised release could not exceed the 60 months of the foreign sentence. Tsui objected to the report and claimed that he should be released immediately arguing that if the Parole Commission sentenced him to the full five year sentence it would lack authority to impose a term of supervised release. The Parole Commission subsequently issued a Transfer Treaty Determination (TTD) on October 19, 2007, ordering a release date "after service of 52 months," or December 28, 2008. The Commission also ordered Tsui to serve a 36 month period of supervised release after his prison term, or until he served the full term of the foreign sentence, whichever was sooner. After being released from custody on October 23, 2007, and beginning his supervised release, he petitioned the Ninth Circuit for review pursuant to 18 U.S.C. §4106A(b)(2)(A).
The Court applied a de novo standard of review to the Commission's legal interpretation, and reviewed its factual findings for clear error. Tsui claimed that his supervised release should end in June 2008 rather than December 2008. He claimed that pursuant to 18 U.S.C. § 4106A(b)(1)(C), the combined prison and supervised release periods may not be greater than the 60 month sentence that the Korean court imposed; and because the Parole Commission imposed a prison sentence of 52 months, his supervised release could not exceed 8 months.
The Court did not concur. It examined the language of Article 10 of the Convention and noted that it does not differentiate between imprisonment and supervised release. The federal statute at §4106A(b)(1) provides that the combined terms of imprisonment and supervised release may not exceed the term of imprisonment that the foreign nation imposed. The Court concluded that it did not read the Treaty or statute as requiring the Parole Commission to divide the remaining prison sentence and supervised visitation. Because the Parole Commission has been delegated responsibility for calculating the sentence and neither the Convention nor the statute instruct the Parole Commission to calculate the sentence in a certain way, the Commission's approach is entitled to deference under the standard set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Court is thus required to defer to the Commission unless its approach is "arbitrary, capricious, or manifestly contrary to the statute," which the Court did not find to be the case.
RESOLUTIONS, DECLARATIONS AND OTHER DOCUMENTS
United Nations Security Council Resolution 1820 Women, Peace, and Security (June 19, 2008)
Click here for document. (Approximately 5 pages).
Recalling its previous landmark resolution 1325 (2000), and the Beijing Declaration and Platform for Action (A/52/231), on June 19, 2008 the United Nations (UN) Security Council recognized that rape and other sexual violence can constitute a war crime, a crime against humanity, and demanded that all parties to armed immediately take steps to protect civilians from all types of sexual violence. It called for crimes of sexual violence to be excluded from amnesty provisions in peace talks, and called upon member states to prosecute those responsible for such crimes.
It requested the Secretary-General to take a number of specific steps including encouraging discussions on this issue to take place in the larger context of talks regarding conflict resolution among UN officials and parties to conflicts, while taking account of the perspectives of women in communities affected by the violence. It further asked the Secretary-General, working in concert with the Security Council and the Special Committee on Peacekeeping Operations, to create and implement training programs for peacekeepers and other humanitarian staff to better prevent, identify, and react to violence against civilians, and to improve efforts to implement the "zero tolerance" policy regarding sexual abuse and exploitation in UN peacekeeping operations.
The Security Council encouraged troop and police contributing nations, in consultation with the Secretary-General, to examine measures to improve the responsiveness of their troops in UN peacekeeping operations and prevent sexual abuse and exploitation against women and children, including deploying higher percentages of women peacekeepers and police.
World Health Assembly Global Strategy and Plan of Action on Public Health, Innovation, and Intellectual Property (May 24, 2008)
Click here for document. (Approximately 50 pages).
The World Health Assembly (WHA) is the principal decision-making entity of the World Health Organization (WHO). Delegations from its 193 member states generally meet in May in Geneva annually to promulgate the organization's policies. At its fifty-ninth meeting the WHA created an Intergovernmental Working Group on Public Health, Innovation and Intellectual Property to prepare a global strategy on these issues. At its sixty-first meeting this May the WHA adopted the global strategy and parts of the action plan. The WHA urged member states to implement the actions recommended in the global strategy and plan of action and to "consider providing" sufficient resources to implement it. It requested the Director-General to work with other appropriate international intergovernmental organizations including WIPO, the WTO, and UNCTAD to implement the strategy. The WHA further requested the Director-General to monitor progress in implementing the strategy and report to the WHA at its sixty-third annual meeting.
The stated goal of the global strategy is to encourage new ideas on innovation and access to medicine as well as creating a framework for an improved and sustainable basis for research and development which disproportionately affects developing countries, as well as recommending goals for research and development and funding needs.
Its principles include that intellectual property rights do not and should not preclude member states from taking steps to safeguard the public health needs of their populaces; and that the research and development of developed nations should better mirror the health needs of developing countries. It emphasizes that the global strategy and action plan should encourage the creation of health products and medical devices that are created in an ethical way; available in sufficient quantities; effective and safe; affordable and accessible; and used in rational ways.
The global strategy and plan of action focuses upon eight elements: 1) prioritizing research and development needs; 2) promoting research and development; 3) building and improving innovative capacity; 4) technology transfer; 5) the application and management of intellectual property to public health; 6) improving delivery and access of medicines; 7) promoting sustainable financing mechanisms; and 8) establishing monitoring and reporting systems. The plan encourages the ability of developing nations to improve their research and development capacity with respect to traditional medicine; support South-South collaboration in sharing data and research; and encourage early-stage drug research and development in traditional medicine systems in developing nations.
John B. Bellinger III, Legal Advisor, U.S. Department of State, Testimony Before the House Foreign Affairs Subcommittee on International Organizations, Human Rights, and Oversight (June 10, 2008)
Click here for document. (Approximately 10 pages).
In testimony before the House Foreign Affairs Subcommittee on International Organizations, Human Rights, and Oversight on June 10, 2008, John Bellinger, Legal Advisor for the U.S. State Department, discussed the United States' use of diplomatic assurances to protect persons against torture in other nations. He focused upon three areas: 1) surrender of fugitives by extradition from the U.S.; 2) immigration "removal" proceedings; and 3) the transfer of combatants from the detention facility at Guantanamo Bay, Cuba.
Mr. Bellinger emphasized that the U.S. is bound by Article 3 of the Convention Against Torture (CAT) not to expel, return "refouler", or extradite an individual from the U.S. to a nation where there are substantial grounds to believe he might be subjected to torture. The U.S. interprets this to mean where an individual would be "more likely than not" to be tortured. Mr. Bellinger highlighted that the non-refoulement provisions of Article 3 apply only to persons in the territory of the United States. Nonetheless, he described it as being the policy of the U.S. not to send any person, wherever he is located, to a nation where it is more likely than not that he would be tortured, and that this commitment is absolute and is not qualified by the potential threat such a person may pose to the safety and security of the American people. He described diplomatic assurances as a way to allow the United States to honor our international legal obligations not to send individuals to countries where they face torture while simultaneously protecting U.S. national security and public safety interests. The receiving state may provide the U.S. with credible diplomatic assurances that may reduce the danger that an individual will face torture. He noted that diplomatic assurances are not appropriate in all circumstances, and must be based upon a case-by-case analysis. In the extradition context, federal regulations at 22 C.F.R. Part 95 govern. The U.S. may seek assurances that the fugitive will have regular access to a lawyer and the protections under the nation's constitution or laws. Before entering into an extradition treaty he noted that the U.S. reviews the human rights record of the possible treaty partner to ascertain whether they will follow the rule of law and the human rights of someone who is extradited.
In the immigration context, federal regulations at 8 C.F.R. 208.18(c) and 8 C.F.R. 1208.18(c) permit the U.S. Secretary of State to notify the Secretary of Homeland Security that the former has obtained assurances from a government that an alien will not be tortured if removed there.
With respect to the detainees at Guantanamo Bay, Cuba, while Mr. Bellinger opined that "Article 3 of the CAT does not as a matter of treaty law apply to Guantanamo transfers," the U.S. nonetheless follows a policy that these individuals are not to be transferred to nations where they are more likely than not to be tortured.
Mr. Bellinger stressed the need for confidentiality and discretion in the negotiation of assurances with other nations. He highlighted a number of factors that State Department officials may consider in the negotiation of assurances including political and legal developments; the country's history of compliance, judicial and penal conditions, and the possible incentives and ability of another nation to meet its assurances.
Briefly Noted: Legislation: African National Congress no longer deemed "Terrorist Organization" Pub. L. 110-257
On July 1, 2008 President Bush signed into law a measure to remove the African National Congress from treatment as a terrorist organization. The former apartheid regime in South Africa banned the ANC in 1960 and the United States used to deny Visas to ANC members. The new law would lift this restriction. Click here for document.
Briefly Noted: Legislation: Italian Law No. 244 Consumer Protection Law (December 24, 2007)
Click here for document.
Thank you to Richard H. Dreyfuss, New York Bar, for providing and translating this document.
Italy enacted a law on December 24, 2007 in accord with European Union principles to increase consumer protection. It will allow collective actions for money damages to protect consumers in suits arising from contracts of adhesion, tortuous acts, unlawful commercial practices, or anticompetitive behavior. The statute of limitations begins to run by either the beginning of the collective action or a later notice of participation in the action.
International Law In Brief (ILIB) - Copyright 2008 - The American Society of International Law (ASIL)
Authors: Susan A. Notar, Esq.
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