International Law In Brief
Developments in international law, prepared by the
Attorney Editor of International Legal Materials
The American Society of International Law
July 18, 2008
©2008 American Society of International Law
(Educational copying is permitted with due acknowledgment)
JUDICIAL AND SIMILAR PROCEEDINGS
International Court of Justice: Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) Request for the Indication of Provisional Measures (July 16, 2008)
Click here for document. (Approximately 20 pages).
By a vote of seven to five, the International Court of Justice (ICJ) issued an order for provisional measures on July 16. 2008 pursuant to Article 41 of the Courts statute for the United States to take all measures necessary to ensure that five Mexican nationals including José Ernesto Medellin Rojas, are not executed pending judgment on Mexicos request unless and until they receive review and reconsideration of the ICJ judgment in the landmark Avena decision (March 31, 2004). The ICJ thus rejected by a vote of seven to five the United States request to dismiss Mexicos application. The provisional orders determination is the latest development regarding the Mexican nationals at issue in the United States Supreme Court Medellin v. Texas (March 25, 2008) decision of this term. Texas had scheduled Medellins execution for August 5, 2008.
International Criminal Court: Prosecutors Application for Warrant of Arrest under Article 58 Against Omar Hassan Ahmad Al Bashir (July 14, 2008)
Click here for document. (Approximately 10 pages).
Luis Moreno-Ocampo, International Criminal Court (ICC or Court) Prosecutor, applied to the trial chamber July 14, 2008, pursuant to Article 58 of the Rome Statute for an arrest warrant against Omar Hassan Ahmad Al-Bashir, President of Sudan.
The Prosecution has conducted an investigation of crimes allegedly committed in the Darfur region of Sudan from March 2003 to the present, within the temporal jurisdiction of the Court, and concluded that there are reasonable grounds to believe that Al Bashir bears criminal responsibility for genocide under Article 6(a) of the Rome Statute; crimes against humanity under Article 7(1) of the Statute; and war crimes under Article 8(2)(e)(i) of the Statute. The Prosecution alleges that Al Bashir committed these crimes indirectly through the army and the Militia/Janjaweed pursuant to Article 25(3)(a) of the Statute. The Prosecutor emphasized that under the principle of complementarity, under which it would defer to the national jurisdiction if it was able and actively investigating and prosecuting the crimes, here the government of Sudan is neither investigating nor prosecuting these alleged crimes.
The Prosecution asserts that Al Bashir intends to destroy in substantial part the Fur, Masalit, and Zaghawa ethic groups. Forces that Al-Bashir controlled attacked civilians and killed, raped, tortured, forced the displacement of a large segment of the population, and deliberately inflicted on a substantial part of those groups conditions designed to bring about their physical destruction. The Prosecutor emphasizes that thousands of women and children as young as five have been gang-raped and that the crime of rape is a key part of the Government of Sudans pattern of destruction of targeted groups.
The Prosecution avers that Al Bashir has manipulated a variety of governmental sectors to support the perpetration of crimes including intelligence, armed services, diplomatic corps, public information, and justice system. In particular, he has shielded Ahmed Harun, Minister of State for Humanitarian Affairs, from ICC prosecution after the Court indicted him on April 27, 2007.
International Criminal Court: Appeals Chamber Judgment on the appeal of Mr. Lubanga Dyilo against the oral decision of Trial Chamber 1 of 18 January 2008 (July 11, 2008)
Click here for document. (Approximately 44 pages).
The Appeals Chamber of the International Criminal Court (Court) confirmed the decision of the Trial Chamber with respect to the Prosecutions duty to disclose information to the defense. It reversed the Trial Chambers decision regarding the duty of the Prosecutor to disclose information regarding the general use of child soldiers in the Democratic Republic of Congo (DRC).
Thomas Lubanga Dyilo (the appellant), 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 Prosecutors 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 libération du Congo. Trial Chamber I issued an oral decision January 18, 2008 (the Impugned Decision) on the Prosecutions request regarding the disclosure of information to Mr. Lubanga Dyilo before trial. The defense filed a motion to appeal this decision on January 28, 2008. The prosecutor responded to this motion on February 1, 2008. On March 6, 2008, the Trial Chamber issued its decision on the defense request for leave to appeal the oral decision on redactions and disclosure of January 18, 2008. On appeal the Court considered whether: 1) unnecessary and unjustified" late disclosure by the defense of its case can properly impact upon the prosecutions disclosure; 2) the Trial Chamber erred when it provided protection for witnesses for the defense over the defense right to know the identify of those witnesses and its finding that this would not harm the fairness of the trial; and 3) the Trial Chambers decision regarding the duty of the Prosecution to share information regarding the general use of child soldiers in the DRC because it was not exculpatory violated Rule 77 of the Court.
The appellant argued that the Trial Chamber erred when it held that late disclosure of the defense case could justify the prosecutions partial or whole non-disclosure of exculpatory material to the defense without harming the fairness of the trial. He contended that the Prosecutions duty of disclosure was unrelated to any action of the defense. He emphasized that pursuant to Article 54(1)(a) of the Rome Statute the Prosecutor has a duty to investigate both incriminating and exonerating evidence. With respect to the appellants right to silence, he maintained that his right was absolute and should not be read to either limit the Prosecutions duties or to prescribe the rights of the accused.
The Prosecution by contrast, asserted that the defense misconstrued the Impugned Decision, which emphasized that the defenses decision to disclose information to the Prosecution at a late stage of the proceedings impacts Prosecutions ability to locate and reveal information to the defense in a timely manner. The Prosecutor responded that the Impugned Decision did not address the right to silence but rather indicated that there may be consequences if the defense does not disclose information.
The Appeals Chamber noted that it did not purport to address the entire disclosure of information regime in this opinion but that generally the Prosecutor has the duty to make full disclosure except where the Court Statute and rules permit otherwise. This duty is not contingent upon that of the Defense to reveal its case in advance and applies even when an accused remains silent or does not raise a defense.
With respect to the third issue on appeal, the duty of the Prosecution to provide general information regarding the use of child soldiers in the DRC, the Appeals Chamber held that the Trial Chamber erred when it ordered that the Prosecutor is not under an obligation to serve material that relates to the general use of child soldiers in the DRC. The Appeals Chamber held that the non-disclosure order was erroneous because it was based on an interpretation of rule 77 on procedure and evidence that was too narrow. Rule 77 requires the Prosecutor to permit the Defense to inspect any books, documents, photographs, or other tangible evidence in the possession or control of the Prosecutor that are material to the preparation of the defense. While the Trial Chamber did not explicitly cite to Rule 77, it held that only material that related to issues that would either directly undercut the Prosecutions case or support the Defense argument was material to the preparation of the defense. The Appeals Chamber held that this definition was overly narrow because it would exclude objects which, though not tied directly to exonerating or incriminating evidence may nonetheless be material to the preparation of the defense case. Because rule 77 is based upon rule 66(B) of the rules of procedure and evidence of the ICTY, the Appeals Chamber examined jurisprudence of the ICTY and ICTR which supports the conclusion that rule 77 must be interpreted broadly.
The Supreme Court of Israel: Anonymous v. The State of Israel (6659/06) (June 11, 2008)
Click here for document. (Approximately 50 pages).
The Supreme Court of Israel (Court) upheld the constitutionality of the Incarceration of Unlawful Combatants law (the Law) 5762-2002 on June 11, 2008, and denied the appellants appeals. It was the first constitutional challenge to the Law to reach the Court.
The Knesset passed the Law in March 2002. It permits unlawful combatants to be detained. It defines an unlawful combatant as being a person who participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel, to whom Article 4 of the Third Geneva Conventions regarding prisoners of war status in international law does not apply.
The case arose out of an appeal by two residents of Gaza who were detained because of their purported association with Hezbollah in January 2002 and January 2003. They claimed that the Law was unconstitutional because it violated their rights to liberty and dignity in the Israeli Basic Law and is inconsistent with the rules of international humanitarian law. The appellants also contested the factual findings that they were members of Hezbollah and they claimed that Israel could not detain them because it no longer exercised military rule over the Gaza Strip. Israel by contrast, contended that the law met the requirements of the Basic Law, that it had a proper purpose, and involved a proportionate violation of personal liberty. Israel also contested the factual allegations of the appellants. The judgment addresses the issues raised on appeal from periodic reviews of the District Court.
The Court examined the background of the Law and noted that a presumption exists to treat a piece of Israeli legislation as being consistent with international law norms to which Israel has committed, here international humanitarian law norms. It summarized the Law as meaning that an unlawful combatant is a foreign party who belongs to a terrorist organization that operates against the security of the State of Israel.
While the appellants argued that international humanitarian law does not recognize a separate category of unlawful combatant, the Court noted that it had already addressed this issue in Public Committee Against Torture in Israel v. Government of Israel, in which it held that the term civilian subsumed the term unlawful combatant.
The Court discussed a number of articles of the Fourth Geneva Convention and noted that the Convention permits civilians to be interned but only when absolutely necessary for the security of the detaining power (see article 42); and only when approved in a judicial or administrative proceeding and accompanied by at least biannual periodic reviews to determine the necessity for continued detention (see article 43). It rejected the appellants assertion that the Fourth Geneva Convention should not apply to them because they were detained in the Gaza strip rather than in Israel because while Israeli military rule of the Gaza strip had ended when the appellants were detained, the hostilities between Hezbollah and Israel continued.
Because administrative detention is an unusual and extreme measure and violates the constitutional right to personal liberty, the Court required the State to demonstrate by clear and convincing evidence that a sufficient security threat existed to warrant its use. The Court opined that there must be more evidence than a single piece from an isolated event to be enough for the state to show that even if the detainee did not take a significant direct or indirect part of the hostilities against the State of Israel, he nonetheless belonged to a terrorist organization and participated in the cycle of hostilities.
With respect to the appellants contention that the Law violated their right to personal liberty under the Basic Law, the Court applied the limitations clause of the Basic Law. That clause permits a law to be violated only if it benefits the values of the State of Israel, is intended for a proper purpose, and is not excessive. The Court held that the Law has a proper purpose because it was meant to prevent individuals who threaten the security of the State of Israel from returning to the cycle of hostilities. To determine whether the Law was proportional to its violation of human rights the Court applied a three-prong test whether: 1) the law corresponds to the purpose for which it was intended; 2) the law violates the constitutional right as little as possible while still achieving its goal; and 3) the violation of the constitutional right is commensurate to the social benefit it achieves. The Court found the first test to be met because administrative detention prevents the unlawful combatant from engaging in hostilities against Israel. It found the second prong to be met because the alternatives that the appellants suggested, being treated as prisoners of war or being given criminal trials, were unsuitable alternatives as not meeting the purpose of the Law; and the way in which the Law is implemented does not violate their right to personal liberty excessively and is within the scope of the deference for the legislature. The Court found the third prong to be met here for a number of reasons including that the scope of the Law is limited as it applies only to foreign parties and not to citizens and residents of Israel; the state must show that the detainee played a real part in the hostilities; the state must show by clear and convincing evidence that the conditions of being an unlawful combatant are met; detention orders are subject to periodic reviews and may be appealed; and detention cannot continue indefinitely under the Law and must be weighed on a case by case basis.
The Court thus held that the trial court was justified in not canceling the internment orders in these cases.
RESOLUTIONS, DECLARATIONS AND OTHER DOCUMENTS
United Nations Security Council Resolution 1822 Threats to International Peace and Security by Terrorist Acts (June 30, 2008)
Click here for document. (Approximately 10 pages).
Acting pursuant to Chapter VII of the United Nations (UN) Charter, the Security Council reaffirmed on June 30, 2008 that acts of terrorism are criminal and unjustifiable and reiterated its condemnation of Al-Qaida, Usama bin Laden, the Taliban, and other groups associated with them. It called upon all states to take the measures it specified in Security Council resolutions 1297 (1999), 1333 (2000); and 1390 (2002); with respect to Al-Qaida, Usama bin Laden, the Taliban, and other associated groups to freeze their funds and other financial assets; prohibit the entrance or travel through their territories of these individuals, and prevent the sale of arms and related material to them. It noted that the funding and support of terrorist organizations included sums derived from illegal production and trafficking of narcotics from Afghanistan and elsewhere. It called for continued cooperation between the Al-Qaida and Taliban Sanctions Committee (the Committee) that the Security Council created in resolution 1297, the government of Afghanistan, and the United Nations Mission in Afghanistan (UNAMA), including in the identification of individuals and entities helping to fund or support the acts of Al-Qaida and the Taliban. It further called upon greater cooperation between the Committee, the 1540 Committee addressing the non-proliferation of weapons of mass destruction and their groups of experts to improve information-sharing and coordination on country site visits, as well as technical assistance, and relations with international and regional organizations. The Security Council indicates that it will provide guidance to the committees to help them to better synchronize their work.
United Nations Security Council Resolution 1810 (April 25, 2008)
Click here for document. (Approximately 4 pages).
The United Nations Security Council called upon member states to fully implement resolution 1540 (2004), to refrain from supporting non-state actors from creating, obtaining, shipping, or using nuclear, chemical, or biological weapons and delivery systems. It urged all member states that have not yet submitted their 1540 report on steps that they have taken or will take to comply with the resolution to the 1540 Committee. It encouraged states that have already submitted their reports to provide the 1540 Committee with additional information on their implementation plans. It encouraged states that have made requests for technical assistance to convey them to the 1540 Committee, and advised states and international, regional, and subregional organizations to inform the 1540 Committee by June 25, 2008 on areas in which they can offer assistance. The Security Council extended the mandate of the 1540 Committee until April 25, 2011; and urged it to use to its best advantage voluntary financial contributions to help states implement resolution 1540.
International Law In Brief (ILIB) - Copyright 2008 - The American Society of International Law (ASIL)
Author: Susan A. Notar, Esq.
ILIB is a free-of-charge electronic resource. To sign up for ILIB or ASIL Insights, click here.
To comment on this publication, send an e-mail message to Susan Notar, ILM Managing Editor at snotar@asil.org