International Law In Brief
Developments in international law, prepared by the
Attorney Editor of International Legal Materials
The American Society of International Law
September 9, 2008
©2008 American Society of International Law
(Educational copying is permitted with due acknowledgment)
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| Annual Report - The Special Court for Sierra Leone (August, 2008) | |
RESOLUTIONS, DECLARATIONS AND OTHER DOCUMENTS
United Nations Security Council Resolution 1830 Extends the Mandate of the United Nations Assistance Mission for Iraq (UNAMI) (August 7, 2008)
Click here for document. (Approximately 3 pages).
The United Nations Security Council (SC) decided to extend the mandate of the United Nations Assistance Mission for Iraq (UNAMI) for an additional period of twelve months, in order to support the efforts of the Iraqi people and their government with respect to democratic and institutional progress. According to the SC, the political progress will be strengthened through both "political dialogue and national reconciliation" and the cooperation with neighboring states.
The SC expressed "concern" about "human rights challenges" and emphasized the significance of dealing with these issues on a timely basis. The resolution stressed that special attention should be given to vulnerable groups, such as refugees and internally displaced persons. The SC urged that "all parties should continue to take all feasible steps and develop modalities to ensure the protection of affected civilians, including children, and should create conditions" that allow refugees and internally displaced persons a "voluntary, safe, dignified, and sustainable return" to their homes. Here, the SC noted the "important role of the Office of the United Nations High Commissioner for Refugees...in providing advice and support to the Government of Iraq, in coordination with UNAMI."
Finally, the SC urged all parties involved to pay due regard to their international humanitarian law obligations, including the Geneva Conventions and the Hague Regulations, and "to allow full unimpeded access by humanitarian personnel to all people needed of assistance." In paragraph 3, the SC highlighted the importance of UN personnel and called upon the Iraqi government and other member states "to continue to provide security and logistical support to the UN presence in Iraq."
United Nations Security Council Resolution 1831 Renews the Authorization of Member States of the African Union to Maintain a Mission in Somalia (August 19, 2008)
Click here for document. (Approximately 2 pages).
The United Nations Security Council (SC), acting under Chapter VII of the Charter of the UN, decided "to renew the authorization of Member States of the African Union to maintain a mission in Somalia [AMISOM] for a further period of six months." The SC determined that the situation in Somalia "continues to constitute a threat to international peace and security" and that as a result the SC must take action. According to the SC, the continued deployment of AMISON will assist in the "withdrawal of foreign forces from Somalia" and this in turn will create the necessary "conditions for lasting peace and stability" and remove the threat to international peace.
The mission has the authority to "take all necessary measures as appropriate to provide security to key infrastructure and to contribute...to the creation of the necessary security conditions for the provision of humanitarian assistance." Furthermore, AMISON is authorized to "take all necessary measures as appropriate to carry out the mandate set out in...resolution 1772." The SC also commended the Transitional Federal Government of Somalia and the Alliance for the Re-Liberation of Somalia on their agreement to authorize and set up "an international stabilization force from countries that are friends of Somalia," not including neighboring states.
Finally, the SC urged member states of the African Union (AU) to assist the mission in its aim of removing all foreign forces from Somalia and establishing conditions for a lasting peace. Other member states are urged to "provide financial resources, personnel, equipment and services for the full deployment of AMISON."
Agreement Concerning the Deployment of Ground-Based Ballistic Missiles Defense Interceptors in the Territory of the Republic of Poland and the Declaration on Strategic Cooperation Between the United States of America and the Republic of Poland (August 20, 2008)
Click here for the Agreement document. (Approximately 13 pages); click here for the Declaration document (Approximately 2 pages)
On August 20, 2008, the Republic of Poland and the United States signed the long anticipated and highly controversial Agreement Concerning the Deployment of Ground-Based Ballistic Missile Defense Interceptors in the Territory of the Republic of Poland (Agreement). The Agreement consists of sixteen articles that establish the framework "with respect to the use by the United States of the Closed Area on the territory of Poland...for the purpose of deployment...and use of non-nuclear ground-based ballistic missile defense interceptors." The following are the most notable terms of the Agreement:
1. While Poland is the owner of the property whereon the base is located, and the United States promises to "use the Base without prejudice to the sovereignty and laws of the Republic of Poland, any claims that arise between the parties should be settled "in accordance with U.S. law" (Article III and XV, respectively). Article XV gives a short summary of the settlement dispute procedure.
2. The Agreement will "enter into force in accordance with the internal laws of each Party and upon the date of the later of the written notification" (Article XVI). Once in force, the Agreement will remain binding for a period of twenty years (with automatic renewal in five-year increments), "unless either Party notifies the other in writing at least two years prior to the expiration" of the original agreement.
3. In regards to financial responsibility, the parties agreed that "[e]ach Party shall be responsible for the costs of carrying out its obligations under this Agreement."
4. Article X focuses on the environment, health and safety aspects of the agreement, where "[t]he Parties agree to implement this Agreement in a manner consistent with the protection of the national environment and human health and safety."
5. The command of the base will be divided between the "Polish" and the "U.S. Commander," who will have authority over their respective groups (Article IV). Similarly, while the base is built in Poland, the U.S. will "have exclusive use of, and unrestricted access to" the base (Article V). The parties also agreed that in cases where construction must be done on the base, "local Polish physical persons and legal entities" will be used in order to "serve...to the extent feasible for the performance of a contract" (Article V).
Upon signing of the Agreement, the parties issued a Declaration on Strategic Cooperation. According to the Declaration, U.S. and Poland have agreed to "enhance their security" through active cooperation in three areas: 1) Political-Military Cooperation; 2) Information Sharing; 3) Defense Industrial and Research and Technology Cooperation. To this end, the parties "plan to conclude a number of bilateral agreements that are intended to enhance defense and security cooperation." The development of a missile defense system on Polish territory will "provide the necessary and critical capability that can be used to defend both nations, and other NATO allies." They declared that Article 5 of the North Atlantic Treaty, "which provides that an armed attack against one NATO country shall be considered an armed attack against them all," was the basis for "the U.S.-Poland security relationship." The parties added that their cooperation will be in accord with the "United Nations Charter and international law."
The declaration specifies that the primary implementation mechanism that will further the aim of the agreement will be the Strategic Cooperation Consultative Group (SCCG). According to the declaration, "SCCG will be composed of senior representatives from the Department of State and Department of Defense in the United States, and the Ministry of Foreign Affairs and Ministry of National Defense in Poland." The parties go on to specify the different tasks with which the SCCG will be charged and emphasize that all the work done will be "within the framework of Article 3 of the North Atlantic Treaty." In sum, the agreement is an exchange of benefits, where the U.S. agrees to assist Poland "with the modernization of its Armed forces," while Poland agrees to "provide an appropriate site, infrastructure, and facilities" for the planned garrison to be built by 2012.
The agreement provoked much criticism and possible backlash by the Russian Federation. On August 21, 2008, Russia Today reported that "Syria says it's ready to put a Russian missile system on its soil as a counterweight to U.S. plans to deploy a missile shield in Poland and the Czech Republic. The offer was made during a meeting between Syrian leader Bashar Al-Assad and President Dmitry Medvedev in the Black Sea resort of Sochi." In addition, according to another article in Russia Today, Russian President Medvedev is reported to have said that Russia "is ready to break off relations with NATO if necessary."
House of Lords - Select Committee on the Constitution Report: Counter-Terrorism Bill - The Role of Ministers, Parliament and the Judiciary (August 5, 2008)
Click here for document. (Approximately 31 pages).
The Constitution Committee, appointed by the House of Lords, with the mandate of examining "constitutional implications of all public bills coming before the House," published its Report on the Counter-Terrorism Bill (currently in the Committee Stage of the legislative process).
The report "considers the respective roles of ministers, Parliament and the judiciary" within the proposed framework. The Committee centered its concerns on Part 2 (proposal to extend pre-charge detention for terror suspects to 42 days) and Part 6 (proposals to permit the Secretary of State to issue certificates requiring an inquest to be held without a jury and allowing for the appointment/removal of coroners).
With respect to the pre-charge detention period, which is to be extended to 42 days, the Committee emphasized that the "purpose of placing time limits on the detention and questioning of suspects in an investigation is to guard against arbitrary detention." Furthermore, requiring the police and the prosecutor to either charge or release a suspect within a specified time, "ensures compliance with the rule of law by placing the accused under the control of the court." Finally, according to the report, restricted detention decreases the possibility of false confessions. The Committee noted that while there is no universally agreed upon time limit for police detentions, "[t]he European Convention on Human Rights requires that those arrested shall be informed "promptly" of the reasons for their arrest and of any charge against them, and then be brought "promptly" before a judge (Article 5(2) and 5(3))." Whether the 42 day pre-charge detention is in violation of the Convention will probably be "ultimately determined by the courts." Currently, under the Terrorism Act 2000 (2006 amendments), the pre-charge detention period is 28 days.
The second concern expressed by the Committee dealt with the proposed sharing of authority between the judiciary and the Parliament. The Committee noted that under the planned bill, there is a risk of muddling "the roles of Parliament and the judiciary" by setting up a system where the "Parliament and the judiciary ... ask and answer similar questions." According to the proposed legislation, in cases where the pre-charge detention period is to exceed 28 days, a report is made to the Home Secretary (HS) "stating that there are reasonable grounds" that suspects should be detained for more than 28 days to allow the police "to obtain or preserve evidence relating to a serious terrorist offence carrying a life sentence." Upon receipt of such report, the HS "obtains independent legal advice" on whether there in fact is a "'grave exceptional terrorist threat' justifying the reserve power. The HS then makes an order extending the detention period from 28 to a maximum of 42 days. Thereafter, the Parliament debates the order and if satisfied with the claims made, passes "a resolution approving it." The Committee is concerned that the proposed mechanism obscures the role of the Parliament with that of the judiciary by authorizing the Parliament with debating "potentially prejudicial matters" and making "decisions that in the circumstances it is institutionally ill-equipped to determine."
The Bill has been highly criticized by Human Rights Watch as being in violation of international human rights law, including the European Convention on Human Rights and the International Covenant on Civil and Political Rights.
JUDICIAL AND SIMILAR PROCEEDINGS
European Court of Human Rights: Case of Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria (July 31, 2008)
Click here for document. (Approximately 34 pages).
The European Court of Human Rights held that Austria violated Article 9 of the European Convention on Human Rights (ECHR), guaranteeing the freedom of thought, conscience and religion, by failing to grant the Jehovah's Witnesses religious community legal personality for twenty years, and Article 14 of the ECHR, prohibiting discrimination, by treating the group differently than other religious communities. It also found that Austria violated Article 6 of the Convention, guaranteeing a fair trial, by unduly delaying the applicants' request for religious status.
The applicants, individuals belonging to the Jehovah's Witnesses religious community, complained that the Austrian government violated their right to freedom of religion and assembly and association under the ECHR by refusing to recognize them as "a religious society" and thereby denying them "legal personality." In addition, they alleged that the eventual legal recognition of their application in the form of religious "community" was "limited and insufficient for the purposes of Article 9 of the ECHR. The applicants claimed that the continuous refusal by the Austrian government to grant them religious society status was an unjustified interference with their right and that as a result they should be compensated for the injuries suffered. The government, on the other hand, argued that the right to freedom of religion was not limited because since 1919 "all Austrian inhabitants had been allowed to practise publicly and privately their thought, religion and beliefs, irrespective of whether their religious society, community or church was recognized or had legal status."
Article 9 of the Convention guarantees the freedom of thought, conscience and religion. Article 11 guarantees "everyone...the right to freedom of peaceful assembly and to freedom of association with others." Both Article 9 and 11 justify government interference but only if such interference was "'prescribed by law," pursued a legitimate aim for the purposes of that provision and [is] 'necessary in a democratic society.'" The court emphasized the importance of the Article 9 guarantees, expressing that "freedom of thought, conscience and religion is one of the foundations of a 'democratic society.'" Since the right is both individual and communal, the court held that it "must be interpreted in light of Article 11 of the Convention, which safeguards associative life against unjustified State interference."
At the heart of the litigation was the government's application of an Austrian law which differentiates religious "society" from religious "community" and guarantees certain kinds of privileges to the former while it refuses such privileges to the latter. As summarized by the Court, under the law, "religious societies enjoy privileged treatment in many areas. These areas include exemption from military service and civilian service, reduced tax liability or exemption from specific taxes, facilitation of the founding of schools, and membership of various boards." Due to the privileges conferred, "the advantage obtained by religious societies is substantial and this special treatment undoubtedly facilitates a religious society's pursuance of its religious aims." As a consequence, the court held that the state is obliged under Article 9 of the Convention to remain neutral in the exercise of its powers, and afford "all religious groups ... a fair opportunity to apply for this status." The court concluded that the different treatment afforded to societies as opposed to communities amounted to a violation of Article 14 of the Convention and that the undue delay in issuing a legal status to the group was a violation of Article 6 (right to a fair trial).The court awarded both pecuniary and non-pecuniary damages for the breach of Articles 6, 9 and 14 of the ECHR.
The dissent did not agree with the majority's analysis and stated that there was no violation of Article 9 because none of the applicants "were at any stage of the proceedings prevented from manifesting their beliefs in worship, teaching, practice and observance and they did not complain of any measures of interference with the first applicant's internal organization by State authorities, such as dissolution of the first applicant, removal of its ministers or other leading personalities or deprivation of property owned by it or premises used for religious offices or ceremonies." The dissent concluded that since the applicants had other ways of organizing their religious membership, there was no interference by the state that would amount to violation of Article 9.
International Court of Justice: Republic of Georgia Application against Russia (August 12, 2008)
Click here for document. (Approximately 33 pages).
The Republic of Georgia, pursuant to Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), brought an action against the Russian Federation. Article 22 confers upon the International Court of Justice (ICJ) jurisdiction to hear "[a]ny dispute between two or more State Parties with respect to the interpretation or application of [the] Convention" not settled in any other manner. In its application, the Republic of Georgia stated that because both Russia and Georgia are Member States of the United Nations and also parties to the CERD and "[n]either party has deposited any reservation" to the court's jurisdiction, disputes between them invoking the CERD "are subject to the compulsory jurisdiction of the Court." Georgia also reserved " its right to invoke Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide [Genocide Convention] as an additional basis for the jurisdiction of the Court," asserting that as parties to the Genocide Convention, both Russia and Georgia are required to submit all disputes between them, "relating to the interpretation, application or fulfillment" of the Convention, to the ICJ.
According to the application, Russia, "acting through its organs, agents, persons and entities exercising elements of governmental authority," and through separatist organizations in South Ossetia and Abkhazia, has violated its obligations under CERD, including Articles 2, 3, 4, 5, and 6. According to Georgia, Russia breaches its duties under the CERD through: 1) "the widespread and systematic discrimination" of ethnic Georgians living in South Ossetia and Abkhazia ; 2) "the widespread and systematic denial on discriminatory grounds of right of ... refugees and IDPs [internally displaced persons] to return to their homes;" 3) "the widespread and systematic unlawful appropriation and sale of home and other property ... of ethnic Georgians and other groups forcibly displaced;" 4) "the continuing discriminatory treatment of ethnic Georgians in South Ossetia and in the Gali District of Abkhazia;" 5) "the sponsoring, defending, and supporting of ethnic discrimination by the de facto South Ossetian and Abkhaz separatist authorities" leading to "ethnic cleansing." Georgia also alleged that Russia's presence and logistical support of the separatist movements has prevented Georgia "from exercising jurisdiction over its territory" thus leading to its inability to "implement its obligations under CERD." Finally, according to Georgia, Russia's war of aggression amounted to a permanent denial of "the right of displaced Georgian's to return to their homes" and "their right to self-determination in accordance to CERD."
Georgia asked the ICJ to declare Russia in violation of its obligations under CERD and requested that the court order Russia "to take all steps necessary to comply with its obligations under CERD" by 1) "immediately ceasing all military activities," 2) "taking all necessary and appropriate measures to ensure the prompt and effective return" of refugees and IDPs, 3) ceasing the "unlawful appropriation of homes and property" and 4) ensuring that the ethnic Georgian population in South Ossetia and Abkhazia "are not subject to discriminatory treatment." It also urged the ICJ to order Russia not to recognize separatist authorities formed through ethnic cleansing and cease all discriminatory conduct against legal and natural persons "having Georgian nationality or ethnicity." Georgia requested that Russia withdraw its forces from the two regions in order to ensure that Georgia can discharge its duties under CERD. Finally, in terms of damages, Georgia asked the court to award due compensation for harm caused through ethnic cleansing and demands "full compensation ... for all injuries resulting from [the] internationally wrongful act."
International Court of Justice: Republic of Georgia Request for the Indication of Provisional Measures (August 13, 2008) and Amendment (August 25, 2008)
Click here for Request document. (Approximately 9 pages); Click here for Amendment document (Approximately 11 pages).
After submitting its application to the International Court of Justice (ICJ) instituting proceedings against the Russian Federation, the Republic of Georgia submitted an "urgent Request that the Court indicate provisional measures to preserve the rights of the Republic of Georgia under the International Convention on the Elimination of the All Forms of Racial Discrimination ("CERD") to protect its citizens against violent discriminatory acts by Russian armed forces, acting in concert with separatist militia and foreign mercenaries." In its request Georgia invoked Article 41 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of the Court.
Article 41 authorizes the court to "to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party." According to Georgia, Article 41 "pre-supposes that irreparable prejudice must not be caused to rights which are the subject to the dispute in judicial proceedings." Articles 73, 74 and 75 define the procedural requirements for requesting the indication of provisional measures. The request "shall specify the reasons" for the application and "possible consequences if it is not granted, and the measures requested" (Article 73, para. 2). According to Article 74, "[a] request for the indication of provisional measures shall have priority over all other cases."
Georgia alleges that the "ongoing elimination of the remaining Georgian civilians and villages demonstrates an attempt to expand the boundary territories under the control of separatist authorities by changing ethnic demography" and the continuing violations amount to "an extremely urgent threat of irreparable harm to Georgia's rights under the CERD in dispute in this case." According to the request, the ICJ should order the following measures to ensure that no irreparable prejudice to the rights under CERD results: 1) Russia should fulfill its obligations under CERD; 2) Russia must "immediately cease and desist" from discriminatory conduct by its individuals and entities under its authority and 3) Russia must "in particular immediately cease and desist from discriminatory violations of the human rights of ethnic Georgians." In its amended request, Georgia further asks that Russia "take all necessary measures to ensure that no ethnic Georgians or any other persons are subject to violent or coercive acts of racial discrimination" by "groups or individuals" in the "areas of Georgian territory under the effective control of the Russian Federation." Russia should also "refrain from adopting any measures that would prejudice the right of ethnic Georgians to participate fully and equally in the public affairs" of the two regions.
By way of an "urgent communication," Judge Rosalyn Higgins, President of the ICJ, urged the parties on August 15, 2008, "to act in such a way as will enable any order the Court may take on the request for provisional measure to have its appropriate effect." Judge Higgins also stated that the hearing on the request for indication of provisional measures "should be dealt with as a matter of urgency," however, each party will be given enough time to prepare its case. The public hearing will take place on September 8 to 9, 2008.
United States Court of Appeals for the Second Circuit: In Re Terrorist Attacks on September 11, 2001 (August 14, 2008)
Click here for document. (Approximately 67 pages).
The plaintiffs appeal the judgment in the U.S. District Court for the Southern District of New York, dismissing their claims against seven of the twelve dismissed defendants: "the Kingdom of Saudi Arabia ("the Kingdom"), four Saudi princes ("Four Princes"), a Saudi banker ("Mohamed"), and the Saudi High Commission for Relief to Bosnia and Herzegovina ("SHC")." The plaintiffs allege they have suffered injuries, ranging from personal to property losses, in the September 11, 2001 terrorist attacks. According to plaintiffs" claim, defendants are "foreign governments, charitable entities, and individuals alleged to have provided financial and logistical support to al Qaeda in the runup to the attacks" and therefore should be held liable for the harm suffered.
The Court of Appeals affirmed the district court's dismissal, holding that the court lacked subject matter jurisdiction with respect to claims against the Kingdom, the Four Princes (acting in their official capacities) and SHC, because under Foreign Sovereign Immunities Act of 1976 (28 U.S.C. §§ 1330, 1602-1611) (FSIA) foreign states are presumptively immune from federal and state jurisdiction unless an exception to the FSIA immunity applies. The court held that "FSIA protects ... most obviously, the Kingdom itself" and, contrary to the plaintiffs' insistence, also "applies to individual official of foreign governments in their official capacity, and therefore to the Four Princes." Similarly, the SHC, which is an "agency or instrumentality of the Kingdom," is also protected under the FSIA. In deciding that individual officials of a foreign government fall within the scope of the FSIA, the court sided with the majority of the circuits, where individuals acting in official capacity are considered an "agency or instrumentality of the state." However, the court noted that even this broad reading of the FSIA does not grant immunity for acts that are committed outside an official capacity (e.g. traffic accidents).
Under the FSIA there is a presumption of immunity for foreign states and their agencies unless a specific exception applies. Three exceptions are "[p]otentially relevant" in this case: 1) Terrorism Exception; 2) Torts Exception; and 3) Commercial Activities Exception. For the terrorism exception to apply the state in question must be designated by the State Department as a state sponsor of terrorism. However, as the court pointed out, "[t]he State Department ... never designated the Kingdom a state sponsor of terrorism" and therefore the terrorism exception was inapplicable. The plaintiffs asked the court to extend the definition of the torts exception and include in it terrorist acts that do not fall within the terrorism exception. The court refused and stated that "[i]If acts of terrorism are considered torts for the purposes of the Torts Exception, then any claim that could be brought under the Terrorism Exception could also be brought under the Torts Exception ... [and] the Terrorism exception would be drained of all force."
The plaintiffs also argued that the defendants' charitable contributions fall within the commercial activity exception. According to their claim, the sham charitable contributions were a type of money laundering; since money laundering "is commercial in nature" the FSIA immunity should not attach to these activities. The court disagreed and held that "giving away money - is not a commercial activity." In fact, the court explained, "the inquiry under the Commercial Activities Exception is not just whether the act was public ...or private... [but] "whether the particular actions that the foreign state performs (whatever motive behind them) are the type of actions by which a private party engages in 'trade and traffic or commerce'" (citing Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614). The court concluded that the charitable donations by the Four Princes "are not part of the trade and commerce."
The Court of Appeals also affirmed the district court's dismissal for lack of personal jurisdiction with respect to claims against the Four Princes and Mohamed, acting in their personal capacities. The court held that the plaintiffs, who "have the burden of showing that these individuals have 'certain minimum contacts with the [United States] such that maintenance of the suit does not offend traditional notions of fair play and substantial justice,'" did not meet their burden (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 316). The defendants were not "primary participants in terrorist acts" and the mere "foreseeability [that their donations will lead to possible injury] is not the standard for recognizing personal jurisdiction." The court concluded that "[p]roviding indirect funding to an organization that was openly hostile to the United States does not constitute...intentional conduct" amounting to "intentional tortious acts" against U.S. residents.
United States Court of Appeals for the Ninth Circuit: In re Dynamic Random Access Memory (DRAM) Antitrust Litigation (August 14, 2008)
Click here for document. (Approximately 18 pages).
British computer manufacturer Centerprise International, Ltd., (Centerprise) appeals the district court's dismissal of its complaint for lack of subject matter jurisdiction under the Foreign Trade Antitrust Improvement Act (15 U.S.C. § 1-7) (FTAIA). The Court of Appeals affirms the district court's holding that Centerprise failed to meet jurisdictional prerequisites under the FTAIA, by failing to show how "its foreign injury was directly linked to the domestic effect" of price fixing.
FTAIA was Congress' response to the expansive jurisdictional scope created under the Sherman Act. It limits the application of the Sherman Act, making it inapplicable to foreign commercial activity, unless such activity "(1) has a 'direct, substantial, and reasonably foreseeable effect on domestic commerce and (2) "such effect gives rise to a [Sherman Act] claim'" (citing F. Hoffmann-La Roche Ltd. V. Empagram S.A., 542 U.S. 155 (2004)). According to the court, this limitation emphasizes the main purpose of the Sherman Act, which is the "protection" of American interests and U.S. commerce. The impact on U.S. commercial activity must "not [be] minor."
The court agreed with the lower court that, while Centerprise satisfied the first prong of the two part test ("defendants conduct had a direct, substantial, and reasonably foreseeable effect on U.S. domestic commerce"), it failed to show that the domestic effect was the cause for Centerprise's foreign injury. The issue on appeal was the interpretation of the "gives rise to" language of FTAIA, which reads: "Sections 1 to 7 of the [Sherman Act] shall not apply to conduct involving trade or commerce...with foreign nations unless ... (2) such [domestic] effect gives rise to a claim under the provision." The plaintiff claimed that the less strict "but for" causation standard be applied in finding a causal link between domestic effect and foreign injury. However, the court disagreed, stating that such standard "cannot suffice for the FTAIA domestic injury exception" and decided to "adopt a proximate causation standard." The court reasoned that the proximate cause standard was "consistent with principles of comity" because it ensures that domestic courts did not interfere with foreign antitrust practices. Furthermore, the court added that "general antitrust principles...typically require a direct causal link between the anticompetitive practice and plaintiff's damages."
Applying the proximate cause standard to the facts, the court held that although the "defendants" conspiracy may have fixed prices in the United States and abroad, and maintaining higher U.S. prices might have been necessary to sustain the higher prices globally," there is no proof that such price fixing was the proximate cause that led to plaintiff's injury. In summary, plaintiff failed to offer "any comprehensible theory alleging direct causal link between the domestic effect and the foreign injury."
The concurring opinion found the "proximate" and "but for" causation discussion unnecessary, stating that the Sherman Act is meant to protect domestic consumers and that "[l]ocation, not logic, keeps Centerprise's claim out of court."
Extraordinary Chambers in the Courts of Cambodia: Closing Order Indicting Kaing Guek Eav alias Duch (August 8, 2008)
Click here for document. (Approximately 45 pages).
On August 8, 2008, the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (ECCC) issued a closing order pursuant to rule 67 of the Internal Rules, indicting Kaing Guek Eav "alias Duch" on charges of crimes against humanity and grave breaches of the Geneva Conventions. This is an important step for the ECCC because Duch is the first suspect to be charged since the court was created in 2006 by the government of Cambodia and the United Nations.
The special tribunal is an independent institution that is tasked with prosecuting senior leaders of the Khmer Rouge. The Khmer Rouge regime was in power between 1975 an 1979, and is alleged to be responsible for the death and disappearance of up to three million people. According to the court's website "[t]he government of Cambodia insisted that, for the sake of the Cambodian people, the trial must be held in Cambodia using Cambodian staff and judges together with foreign personnel." However, because of the "weakness of the Cambodian legal system and the international nature of the crimes," Cambodia asked for and received the help of the international community "to help in meeting international standards of justice."
According to the indictment, the initial investigation against Duch started on July 10, 2006, when the Co-Prosecutors filed an Introductory Submission pursuant to ECCC Internal Rule 53, detailing the allegations for crimes allegedly committed by Duch and five other suspects. Thereafter, the case was transferred to the office of the Co-Investigating Judges (OCIJ), who under Internal Rule 55 undertook their independent analysis of the evidence presented. The OCIJ decided to order Duch detained and transferred to the ECCC detention center. During this investigation, Duch was charged with crimes against humanity and grave breaches of the Geneva Convention of 1949. On May 15, 2008, the OCIJ informed the parties that their part of the investigation was concluded and the case was forwarded to the Office of the Co-Prosecutors (OCP) who "filed their Final Submission requesting the Co-investigating Judges to indict Duch and send him to trial." According to indictment, the investigation of Duch showed that although he was not a "senior leader" of the Democratic Kampuchea regime (DK), his "formal and effective hierarchical authority and his personal participation as Deputy Secretary then Secretary of S21, a security center which was directly controlled by the Central Committee," made him "most responsible for crimes and serious violations" that took place there between 1975 and 1979. The indictment lists several types of personal involvement that allegedly amount to responsibility: 1) "Duch personally tortured and mistreated detainees;" 2) Duch issued orders "with the intent and awareness that they would be achieved;" and 3) "Duch exercised effective de jure and de facto command and control over the entire staff." In sum, "Duch either knew, should have known, or consciously disregarded information that demonstrated that his subordinates committed, or were about to commit the acts described" in the indictment.
Regarding the charges for the crimes against humanity, the indictment alleges that the special prison S21 was known to be "specifically designed and authorized to detain and either reform or eliminate real or perceived political opponents" and that because of "his position of authority at S21," Duch "knew of the purpose that S21 served and intended his actions to contribute to that purpose." According to the indictment, the evidence presented to the OCIJ showed that the following criminal acts were committed "as part of a widespread or systematic attack at S21 directed against a civilian population on political grounds, and with knowledge of the attack, under the customary definition of Crimes Against Humanity:" 1) Imprisonment; 2) Enslavement; 3) Torture; 4) Rape; 5) Murder; 6) Extermination; 7) Persecution; and 8) other inhumane acts. The acts enumerated allegedly led to "the unlawful deaths of over 12,380 detainees."
The indictment also charges that Duch, who was in a position of authority and "acutely aware that crimes committed at S21 took place both in context of the international armed conflict" and against "protected persons," with grave breaches of the Geneva Conventions, namely: 1) Unlawful Confinement of Civilians; 2) Willfully Depriving Rights to Fair Trial; 3) Willfully Causing Great Suffering; 4) Torture and Inhuman Treatment; and 5) Willful Killing.
Briefly Noted: Fifth Annual Report - The Special Court for Sierra Leone (August, 2008)
Click here for document. (Approximately 64 pages).
This is the fifth annual comprehensive report of the Special Court for Sierra Leone, covering the period between June 2007 and May 2008, summarizing the activities of "all Sections of the Court, including Chambers, the Registry...and the office of the Prosecutor." The report is prepared pursuant to Article 25 of the Statute of the Special Court, which reads: "The President of the Special Court shall submit an annual report on the operation and activities of the Court to the Secretary-General and the Government of Sierra Leone."
The purpose of the report is to evaluate the most important developments that took place within the stated period as they relate to the creation, definition and implantation of policies that serve to ensure "a sustainable legacy" of the tribunal. In addition to giving a historical and legal background to each of the separate sections of the court, the report also focuses on the most important cases and judgments, highlighting significant legal developments. As such, the report is a great supplement for scholars and students interested in the court's jurisprudence.
International Law In Brief (ILIB) - Copyright 2008 - The American Society of International Law (ASIL)
Author: Djurdja Lazic
ILIB is a free-of-charge electronic resource. To sign up for ILIB, click here.
To comment on this publication, send an e-mail message to Djurdja Lazic, ILM Managing Editor at dlazic@asil.org