Developments in international law, prepared by the
Attorney Editor of International Legal Materials
The American Society of International Law
September 29, 2008
©2008 American Society of International Law
(Educational copying is permitted with due acknowledgment)
RESOLUTIONS, DECLARATIONS AND OTHER DOCUMENTS
United Nations Security Council Resolution Extends Mandate of UN Interim Force in Lebanon (August 27, 2008)
Click here for document. (Approximately 2 pages).
Resolution 1832, which extends the mandate of UNIFIL for an additional 12 months, was adopted after the Security Council (SC) determined that the situation in Lebanon continued to pose a threat to international peace and security. Through the resolution the SC reaffirmed its “commitment to the full implementation of all provisions of resolution 1701 (2006)” and emphasized its understanding regarding the “responsibilities to secure a permanent ceasefire and a long-term solution” for the region.
The SC commanded the cooperation between the UNIFIL and the Lebanese armed forces, which “has helped to establish a new strategic environment in southern Lebanon” and encourages further improvement and broadening of such coordination. Finally, the SC asked all parties to continue their efforts in achieving a “permanent ceasefire and a long-term solution as envisioned in resolution 1701.”
Resolution 1701 came as a response to the hostilities between Israel and Hezbollah, which resulted in over “hundreds of deaths and injuries on both sides…extensive damage to civilian infrastructure and massive internal displacement” of civilians. The resolution created a buffer zone that could only be occupied by the U.N. and Lebanese armed forces.
The International Guidelines for the Management of Deep-sea Fisheries in the High Seas (September 3, 2008)
Click here for document. (Approximately 29 pages).
United Nations Food and Agriculture Organization (FAO) has announced that after two years of negotiations new international guidelines to limit the impact of fishing on fragile deep sea fish species and habitats have been adopted. The guidelines were developed at the request of the FAO Committee on Fisheries in order to aid States and regional fisheries organizations in managing deep-sea fisheries and in applying the United Nations General Assembly Resolution 61/105 (Chapter 10), which deals with responsible fisheries in the marine ecosystem.
There are virtually no other similar instruments that deal with this specific issue, and consequently the guidelines have been hailed by experts as being a “breakthrough” move aimed at ‘“address[ing] both environmental and fisheries management concerns in an integrated manner’” (Statement by Ichiro Nomura, Assistant Director General of FAO’s Department of Fisheries and Aquaculture).
One of the reasons why the guidelines took two years to complete is the fact that deep sea fisheries are located “in high seas areas outside of countries’ exclusive economic zones,” and any discussion and agreement on the matter “requires multilateral solutions involving not only nations whose vessels are engaged in deep sea fisheries but other interested countries as well” (United Nations Press Release).
According to the guidelines, all deep sea fishing activity must be “rigorously managed.” Furthermore, a number of measures must be taken in order to ensure that vulnerable ecosystems are identified and protected. Finally, nations are encouraged to review their own deep sea fishing activity and ascertain whether such activity adversely impacts the ecosystems. If a nation establishes that negative impact in fact results from their fishing activity, the guidelines recommend that such activity be halted.
The guidelines are an important step in the protection of vulnerable ecosystems and only few countries have been financially able to invest resources and develop policies that ensure that fishing activities do not damage the ecosystems.
JUDICIAL AND SIMILAR PROCEEDINGS
Binyan Mohamed v. Secretary for Foreign and Commonwealth Affairs (In the High Court of Justice Queen's Bench Division, August 21, 2008)
Click here for document. (Approximately 75 pages).
Binyan Mohamed (Binyan), an Ethiopian national formerly a resident of the United Kingdom, was arrested in Pakistan in 2002, and has been held by the United States at Guantanamo Bay since September 2004. Binyan was charged on May 28, 2008 with offences that may carry the death penalty under the U.S. Military Commissions Act of 2006. According to Binyan, the evidence against him consists of confessions he made at Bagram, Afghanistan, between May and September 2004, and at Guantanamo Bay prior to November 2004. Binyan alleges that this evidence is inadmissible because it was obtained as a result of a two year incommunicado detention, during which he was subjected to torture and cruel, inhuman or degrading treatment by Pakistani and Moroccan authorities (with United States’ involvement), and to similar treatment by the United States government itself.
Binyan asked the court to order the U.K. Secretary of State for Foreign and Commonwealth Affairs (Foreign Secretary) to disclose confidential information to lawyers representing him before the military commissions at Guantanamo, on the basis that it may support his allegation that his confessions were obtained by torture and by cruel, inhuman or degrading treatment. The Foreign Secretary has declined to disclose any information to Binyan's lawyers because no such obligation exists and because disclosure of confidential information would harm national security.
The issue in this case is whether the Foreign Secretary should be ordered to disclose confidential information and documents to Binyan’s lawyers. The Foreign Secretary has admitted that upon review of said documents, some have been found to be “exculpatory or might otherwise be relevant in the context of proceedings before the Military Commissions.” According to Binyan, the U.S. government has continuously refused to disclose any information pertaining to his detention, and ordering the Foreign Secretary to do so is the only way Binyan can obtain a fair trial. The Foreign Secretary disagrees with the allegation that U.S. will not allow Binyan to review evidence against him and contends that the U.S. government, pursuant to its rules of procedure, will make relevant evidence available to the detainee during his trial.
The court held that the Foreign Secretary is under a duty to disclose the information requested under the Norwich Pharmacal principle but not on the other grounds brought forward by the claimant, namely, public international law. According to the Norwich Pharmacal principle, a individual “[i]f through no fault of his own…gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoer.” Applying this principle, the court had to find 1) that there was wrongdoing, 2) that the UK government was involved (even if innocently) in the wrongdoing, and 3) that the information requested was “necessary.”
Ultimately, the court found that the U.K. authorities, through their cooperation and information exchange with the U.S., “was in fact far beyond that of a bystander or witness to the alleged wrongdoing.” The court did note that it only referred to “alleged wrongdoing” and in no way meant to express its position on the U.S. conduct.
This decision is interesting for several reasons. First, it gives detainees in foreign custody the ability to order the disclosure of “necessary” confidential information so long as they can allege wrongdoing and show a viable relationship between U.K. authorities and a third party (even if such relationship is innocent). Secondly, in its analysis, the court gives a very comprehensive review of the military commissions, expressing its criticism regarding the disclosure of evidence. Finally, the court dismisses the claimant’s legal argument that disclosure of evidence, even if of exculpatory nature, is a right protected under public international law.
Kadi v. Council of the European Union and Commission of the European Communities (E.C.J., September 3, 2008)
Click here for document. (Approximately 22 pages).
The European Court of Justice (ECJ), in an unprecedented move, set aside the judgment by the Court of First Instance, holding that the court has jurisdiction to review measures adopted by the Community giving effect to resolutions of the Security Council of the United Nations (SC) dealing with the international terrorism sanctions regime. The ECJ found that the freezing of assets imposed on the claimants’ accounts infringed on their fundamental rights under Community law.
According to the facts of the case, Yassin Abdullah Kadi, a resident of Saudi Arabia, and Al Barakaat International Foundation, established in Sweden, (Claimants) were both designated by the Sanctions Committee of the United Nations (Committee) as being associated with Osama bin Laden, Al-Qaeda or the Taliban. As a result of being placed on the list of suspects developed by the Committee, their accounts had been ordered frozen in 2001.
In response to a number of SC resolutions, the Council of the European Union (Council) had adopted a regulation that ordered the freezing of the funds and other economic resources of the persons and entities whose names appear in a list annexed to the regulation. The claimants brought an action before the Court of First Instance demanding that the regulation be annulled, claiming that the Council lacked competence to adopt such a measure, and that the measure in question infringed several of their fundamental rights, including the right to property and the right to have a hearing. The Court of First Instance (CFI) rejected the claimants’ arguments and found the regulation in question valid. In its holding, the CFI held that Community courts lacked jurisdiction to review the validity of the regulation because all Member States are bound to comply with the resolutions of the Security Council according to the terms of the Charter of the United Nations, which as an international treaty prevails over Community law. The CFI also added that one exception to this general rule exists with respect to jus cogens rights.
The claimants appealed the judgment. The ECJ agreed with the CFI with respect to the competency of the Council to adopt a regulation on the basis of the EC Treaty. But the ECJ disagreed with the finding of the lower court that Community courts lacked jurisdiction to review such regulations. The ECJ reasoned that “[t]he review by the Court of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which may not be prejudiced by an international agreement.” This authority to review extended to the measures by the Community, even if the “Community act intended to give effect to the international agreement at issue.” The Court added that “[a] judgment given by the Community courts deciding that a Community measure intended to give effect to a resolution of the Security Council is contrary to a higher rule of law in the Community legal order would not entail any challenge to the primacy of that resolution in international law.”
In conclusion, the ECJ held that Community courts’ are obligated to review the “lawfulness” of all measures by the Community, even if such measures give effect to UN SC resolutions. The ECJ found in favor of the claimants, in particular, the court held that the regulation violated their 1) “rights of the defence” and 2) the “right to property.”
What is exceptional about this judgment are the potential consequences that go beyond the rights of the claimants. What the ECJ does, some will argue, is to subordinate the international obligations under the UN Charter, especially SC resolutions, to Community law. It will be interesting to see how other countries and the UN will react to this judgment.
Prosecutor v. Lubanga: Decision on Participation of Victims, Appeals Chamber (I.C.C., August 6, 2008)
Click here for document. (Approximately 9 pages).
The Appeals Chamber of the International Criminal Court (ICC) decided to grant three victims the right to participate in the appeal by the prosecutor, who is appealing the Trial Chamber’s decision to stay the prosecution of the accused Thomas Lubanga Dylio (Lubanga). The Trial Chamber held on the June 13, 2008, that prosecution’s inability to produce more than 200 documents containing potentially “exculpatory” information rendered the trial in violation of the accused’s right to a fair trial and ordered the stay of the proceedings.
The Appeals Chamber based its decision allowing participation on the possibility that Lubanga’s trial might not take place and as a result “the victims will not have an opportunity to present their views and concerns in the course of that trial and will be unable to present a claim for reparations against him should he be convicted.” However, the court “limited [the victims’ involvement] to the presentation of their views and concerns respecting their personal interests solely relating to the issues raised by the parties in the appeal.” This limitation, the court held, would ensure that both the victims’ right to participate and be heard, and the rights of the accused pertaining to a fair and impartial trial, were equally satisfied.
The defense objected to the victims’ application to partake in the appeals process stating that their participation would be inappropriate and “inconsistent with or prejudicial to the rights of the accused.” In particular, the defense pointed to the nature of the appeal, which it termed procedural rather than substantive. It argued that an order allowing the victims to partake in this appeal would broaden the scope of Article 68(3) of the Statute, which “does not grant victims an unlimited right to participate.”
In its analysis, the appeals chamber pointed to four criteria that must be present in a victim’s application to participate in appeals brought under Article 82(1): “(i) whether the individuals seeking participation are victims in the case (ii) whether they have personal interests which are affected by the issues on appeal, (iii) whether their participation is appropriate and lastly (iv) that the manner of participation is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” The court held that the victims in this case satisfied all the conditions on the following grounds: 1) they were victims in the case, 2) “the personal issues of the victims are affected by the principal issue on appeal” since a possibility exists that the victims’ opportunity to be heard will be eliminated, 3) their participation is for the same reason appropriate and 4) their participation will not impede on the accused’s right to a fair trial because the scope of the their involvement is limited to the issues on appeal.
Judge Sang Hyun Song with filed a separate opinion agreeing with the final result but disagreeing with the legal principle used to arrive at the final decision. According to him, instead of basing their right to participate on Article 82(1)(d) of the Rome Statute, the victims should have made use of regulations 64(4) and 65(5) of the Regulations of the Court, “as they were participants in the proceeding that gave rise to the present appeal.” Article 82(1)(d) states that either party is allowed to appeal “[A] decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.” While Article 82 is very broad, regulations 64 and 65 give a detailed description on how appeals before the ICC should be effectuated.
Prosecutor v. Lubanga: Decision on Prosecution's Application to Lift the Stay of Proceedings, Trial Chamber I (I.C.C., September 3, 2008)
Click here for document. (Approximately 25 pages).
On September 3, 2008, the Trial Chamber of the International Criminal Court (ICC) rejected the prosecution’s application to lift the stay of proceedings in the trial of Thomas Lubanga Dyilo (Lubanga) imposed on June 13, 2008. The initial decision to stay the trial came “as a result of the prosecution’s failure to disclose to the defence or make available to the Chamber certain potentially exculpatory materials which had been obtained pursuant to confidentiality agreements made under Article 54(3)(e) of the Rome Statute.” The court’s holding caught immediate attention since Lubanga is the first trial before the ICC. After the decision to stay the proceedings was issued, the prosecution filed an appeal with the Appeals Chamber (appeal is still pending) and at the same appealed to the trial chamber to lift the stay due to the disclosure of new evidence that would address the exculpatory evidence issue. This decision pertains to this latter appeal.
At heart of this litigation is Article 54(3)(e), which allows the prosecution to agree to obtain documents and other materials on a confidential basis “solely for the purpose of generating evidence.” If the prosecutor wishes to use any of the information obtained pursuant to Article 54(3)(e) he must do so without violating Article 67 of the Rome Statute. Article 67, outlining the rights of the accused, requires that “the Prosecutor…disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence.”
According to the prosecution’s Application for Supplementary Information, “there are currently 204 items that appear to be potentially exculpatory and are subject to the 54(3)(e) agreements.” The majority of these (152 documents) were acquired from the United Nations, the rest coming from six different Non-Governmental Organizations (NGOs). The prosecution claimed that the trial chamber will have immediate access to 152 U.N. documents that were previously undisclosed in a manner that would “accommodate the concerns of the Chamber.”
The chamber first noted that there were “some inconsistencies in the figures provided by the prosecution.” It also added that under the new process “only 3 [NGO] documents” would be disclosed and even they would be in a redacted version. As far as U.N. documents are concerned, the chamber noted it would not be able to keep the reviewed evidence throughout the trial nor would be able to keep any of the notes made during review. Inability to keep evidence for appellate review, the “ambiguity” surrounding the disclosure of summaries of U.N. documents to the defense and the limited disclosure of NGO documents, continues to “infringe fundamental aspects of the accused’s right to a fair trial.” Therefore, the trial chamber was “unable to lift the stay of proceedings.”
This ruling does not mean that Lubanga is free and will be released. The prosecution is still awaiting the decision by the Appeals Chamber and any decision regarding the future of Lubanga depends on the outcome of that appeal.
Tharcisse Muvunyi v. Prosecutor (I.C.T.R., August 29, 2008)
Click here for document. (Approximately 81 pages).
The Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) delivered its judgment in the case against Tharcisse Muvunyi. Muvunyi, an interim Commander at one of Rwanda’s Armed Forces stations, was indicted on counts of genocide, complicity in genocide, direct and public incitement to commit genocide, and crimes against humanity (rape and other inhumane acts) for allegedly participating in and assisting attacks and massacres on thousands of civilians, mostly Tutsis, in the Butare prefecture. On September 12, 2006, pursuant to Article 6(1) and 6(3) of the Statute of the Tribunal, the Trial Chamber found Muvunyi guilty of genocide, direct and public incitement to commit genocide, and crimes against humanity (other inhumane acts) and sentenced him to twenty-five years imprisonment.
In his appeal requesting the Appeals Chamber to overturn his convictions or, in the alternative, to reduce his sentence, Muvunyi presented fourteen grounds challenging the trial Chambers decisions, including: 1) alleged errors relating to an attack at the Butare University Hospital; 2) B. alleged errors relating to an attack at the Beneberika Convent; 3) alleged errors relating to attacks at the University of Butare; 4) alleged errors relating to an attack at the Groupe Scolaire; 5) alleged errors relating to an attack at the Mukura Forest; 6) alleged errors relating to events at various roadblocks; 7) alleged errors relating to a meeting in Gikonko, Mugusa Commune; 8) alleged errors relating to a meeting at the Gikore Trade Center; 9) alleged errors relating to the conviction for other inhumane acts as a crime against humanity (grounds 9, 10, 11, 13) and 10) alleged errors relating to Muvunyi’s authority.
The Appeals Chamber first reviewed the applicable standards of appellate review found in Article 24 of the Statute. According to Article 24, the Appeals Chamber will review “only errors of law which invalidate the decision of the Trial Chamber and errors of fact which have occasioned a miscarriage of justice.” The burden of proof lies with the party alleging the error. With respect to errors of fact, the Appeals Chamber noted that deference is given to the trial Chamber and the Appeals Chamber will only “interfere in those findings where no reasonable trier of fact could have reached the same finding or where the finding is wholly erroneous. Furthermore, the erroneous finding will be revoked or revised only if the error occasioned a miscarriage of justice.”
The Appeals Chamber reiterated the familiar notion that “charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused.” Furthermore, the “Prosecution is expected to know its case before proceeding to trial and cannot mold the case against the accused in the course of the trial depending on how the evidence unfolds.” If during the trial it comes to light that there are inconsistencies between the indictment and the evidence presented, then it is up to the trial Chamber to determine “whether a fair trial requires an amendment of the indictment, an adjournment of proceedings, or the exclusion of evidence outside the scope of the indictment.”
In its analysis, the Appeals Chamber gave a detailed four-point description of what an indictment charging a defendant under Article 6(3) should entail. According to the Appeals Chamber, an indictment lacking the elements enumerated can only be cured “if the Prosecution provides the accused with timely, clear, and consistent information detailing the factual basis underpinning the charge.”
In way of example, Muvunyi was convicted of genocide for an attack at a hospital that claimed the life of 20 to 30 refugees. There were several inconsistencies regarding dates and generally the language of the indictment was very vague. The Chamber held that inconsistencies regarding dates and the nature of the alleged attack were not “minor” defects and “did not properly inform Muvunyi of the material facts for the crime for which he was ultimately convicted.” Prosecutor’s attempt to persuade the Appeals Chamber that Muvunyi had waived his right to now complain about the indictment because he failed to bring the inconsistencies to light during the initial trial were also found unconvincing. As a result, the prosecution had to prove that the inconsistencies did not “materially impair” Muvunyi’s defense. Since the prosecution failed to meet its burden, the Appeals Chamber held that the conviction for genocide for the crimes alleged in the indictment was an error in law and Muvunyi’s conviction with respect to this event was reversed.
In sum, the Appeals Chamber reversed Muvunyi’s 1) conviction for genocide under Count 1 of the Indictment; 2) conviction for direct and public incitement to commit genocide under Count 3 of the Indictment based on a speech; 3) conviction for other inhumane acts as a crime against humanity under Count 5 of the Indictment. The Chamber also quashed Muvunyi’s conviction for direct and public incitement to commit genocide under Count 3 of the Indictment based on a speech he gave and ordered a retrial pursuant to Rule 118(C) of the Rules, limited to the allegations considered under this ground of appeal.
International Law In Brief (ILIB) - Copyright 2008 - The American Society of International Law (ASIL) ILIB is a free-of-charge electronic resource. To sign up for ILIB, click here.
Author : Djurdja Lazic
To comment on this publication, send an e-mail message to Djurdja Lazic, ILM Managing Editor at dlazic@asil.org