International Law In Brief
Developments in international law, prepared by the
Attorney Editor of International Legal Materials
The American Society of International Law
October 17, 2008
©2008 American Society of International Law
(Educational copying is permitted with due acknowledgment)
RESOLUTIONS, DECLARATIONS AND OTHER DOCUMENTS
United Nations Security Council Resolution 1837 Extends the Terms of Office of Certain Judges at the International Tribunal for the Former Yugoslavia (September 29, 2008)
Click here for document. (Approximately 4 pages).
On September 29, 2008 the Security Council unanimously adopted resolution 1837 pursuant to Chapter VII of the United Nations Charter. The resolution extended the terms of office of four Appeals Chamber judges, ten permanent and 27 ad litem judges of the International Criminal Tribunal for the Former Yugoslavia, until 31 December 2009 or until the completion of their assigned cases, whichever is sooner.
The Council also recalled resolutions 1503, adopted on August 28, 2003, and resolution 1534, adopted March 26, 2004, wherein the Security Council called on the Tribunal to “take all possible measures to complete investigations by the end of 2004, to complete all trial activities at first instance by the end of 2008, and to complete all work in 2010.” The Council expressed its hope “that the extension of the terms of office of the judges concerned will enhance the effectiveness of trial proceedings and contribute towards the implementation of the Completion Strategy.”
The resolution also amended Article 12, paragraphs 1 and 2 of the Statute of the Tribunal regarding the composition of its Chambers, changing the number of judges comprising the Chambers. According to the original language of Article 12, “The Chambers shall be composed of eleven independent judges, no two of whom may be nationals of the same State, who shall serve as follows: (a) Three judges shall serve in each of the Trial Chambers; (b) Five judges shall serve in the Appeals Chamber.”
The new Article 12 now reads:
- The Chambers shall be composed of a maximum of sixteen permanent independent judges, no two of whom may be nationals of the same State, and a maximum at any one time of twelve ad litem independent judges appointed in accordance with article 13, paragraph 2, of the Statute, no two of whom may be nationals of the same State.
- A maximum at any one time of three permanent judges and nine ad litem judges shall be members of each Trial Chamber. Each Trial Chamber to which ad litem judges are assigned may be divided into sections of three judges each, composed of both permanent and ad litem judges, except in the circumstances specified in paragraph 5 below. A section of a Trial Chamber shall have the same powers and responsibilities as a Trial Chamber under the Statute and shall render judgement in accordance with the same rules.
United Nations Security Council Resolution 1838 Piracy and Armed Robbery at Sea Against Vessels off the Coast of Somalia (October 7, 2008)
Click here for document. (Approximately 3 pages).
The Security Council, “[g]ravely concerned by the recent proliferation of acts of piracy and armed robbery at sea against vessels off the coast of Somalia, and by the serious threat it poses to the prompt, safe and effective delivery of humanitarian aid to Somalia, to international navigation and the safety of commercial maritime routes, and to fishing activities conducted in conformity with international law,” unanimously adopted Resolution 1838 authorizing a number of critical measures to combat acts of piracy and armed robbery against vessels off the coast of Somalia.
Acting under Chapter VII of the U.N. Charter, the Council condemned “all acts of piracy and armed robbery at sea against vessels off the coast of Somalia” and called “upon States interested in the security of maritime activities to take part actively in the fight against piracy on the high seas off the coast of Somalia, in particular by deploying naval vessels and military aircraft, in accordance with international law, as reflected in the U.N. Convention on the Law of the Sea.” Furthermore, the Council encouraged “States whose naval vessels and military aircraft operate on the high seas and airspace off the coast of Somalia to use on the high seas and airspace off the coast of Somalia the necessary means, in conformity with international law, as reflected in the [United Nations Convention on the Law of the Sea], for the repression of acts of piracy.”
The Security Council reaffirmed the existence of international legal framework, mainly the United Nations Convention on the Law of the Sea, which provides guidance on how to combat piracy and other conflict at sea. The Council also praised the involvement by some countries since 2007 in protecting the World Food Programme maritime convoys and the institution by the European Union of a “coordination unit” tasked with providing support to the “surveillance and protection activities carried out by some member States of the European Union off the coast of Somalia.” It also commended the parties on “the ongoing planning process towards a possible European Union naval operation, as well as other international or national initiatives taken with a view to implementing” previous resolutions.
United Nations General Assembly Draft Resolution Submitted by Serbia (September 23, 2008)
Click here for document. (Approximately 1 page).
Serbia asked the General Assembly, according to Article 96 of the Charter of the United Nations, to vote on a draft resolution requesting an advisory opinion of the International Court of Justice (ICJ), to determine whether the unilateral declaration of independence of Kosovo is in accordance with international law. Article 65 of the ICJ Statute governs the issuance of advisory opinions and in pertinent part states that “[t]he Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.”
In its request, Serbia asserts that Kosovo’s declaration of independence on February 17, 2008 “has been received with varied reactions by the Members of the United Nations as to its compatibility with the existing international legal order.”
On October 9, 2008 the General Assembly voted 77-6 to send the request to the ICJ, with 74 abstentions. The United States voted against Serbia’s request, while 22 EU countries abstained from voting. Spain, Cyprus, Greece, Romania, and Slovakia voted in favor of the demand. Serbia has persistently insisted that Kosovo is a part of Serbia.
JUDICIAL AND SIMILAR PROCEEDINGS
Duke Energy Electroquil Partners & Electroquil S.A. v. Republic of Ecuador (International Center for Settlement of Investment Disputes, August 18, 2008)
Click here for document. (Approximately 129 pages).
The dispute between Duke Energy Electroquil Partners and Electroquil S.A. (Electroquil or Complainants) against the Republic of Ecuador (Ecuador) arose out of several contracts entered into between the parties for electrical power generation in Ecuador. The arbitration culminated in an award in favor of Complainants issued on August 18, 2008 by an ICSID tribunal, which awarded them $5,578,566.00 (US) plus interest for damages incurred. The tribunal held Ecuador liable for breaches of the power purchase agreements (PPAs) and also found it in violation of the U.S.-Ecuador Bilateral Investment Treaty (BIT). However, the tribunal refused to award additional damages for Ecuador’s violation of the BIT stating that “compensation for the breach of the umbrella clause [of the BIT] is subsumed in the compensation already awarded. Indeed, Electroquil has suffered the same financial consequences from the violation of the PPAs and Ecuadorian law and the breach of the umbrella clause.”
Complainants submitted their request for arbitration to ICSID in 2004, arguing that INECEL, a power company owned by Ecuador, breached agreements entered into between INCEL and Electroquil, an Ecuadorian company in which the U.S. based Duke Energy acquired an ownership interest in 1998. According to the terms of the agreements, the parties had contracted that Electroquil would guarantee delivery of certain amounts of electricity and in return receive a guaranteed price for the amount of electricity supplied. In case Electroquil failed to meet the scheduled supply, Ecuador could penalize Electroquil, which it in fact did a short time after the agreements were reached. According to the complaint, the fines against Electroquil totaled more than $8 million.
The Complainants allege that Ecuador was in violation of the agreements and the BIT for the following actions: “(i) late and inappropriate implementation of the Payment Trusts; (ii) non-payment of interest on late payments; (iii) wrongful imposition of fines and penalties; (iv) disregard of customs duties application; and (v) failure to entertain the Claimants’ suits under local arbitration.”
Jurisdiction
The Claimants referred to an arbitration agreement as the primary basis for the Tribunal’s jurisdiction but also invoked the BIT as a “parallel basis for jurisdiction...in the event that the Tribunal were to consider that its jurisdiction does not extend to matters of Payment Trusts, interest on late payments and customs duties under the Arbitration Agreement.” Ecuador objected to the tribunal’s jurisdiction regarding the types of claims alleged, mainly the claims pertaining to payment trusts, interests on late payments and customs duties, and also to the additional BIT basis for jurisdiction. It also argued that the exclusive basis for the tribunal’s jurisdiction was the above mentioned arbitration agreement and not the BIT. The reason for this limitation, Ecuador argued, was the lack of express consent between the parties with respect to the applicability of the treaty to any dispute arising out of the parties’ contractual obligations.
The tribunal acknowledged that the dual basis for invoking its jurisdiction was a “complex issue” and proceeded to analyze the claims under both the arbitration agreement and the BIT, holding that some claims fell under the agreement while others could only be reviewed under the BIT. Interestingly, while Ecuador objected to the BIT as a basis for the tribunal’s jurisdiction, “it expressly acknowledge[d] the application of the BIT as part of the ‘substantive framework’ of the disputes covered by the arbitration agreement.” In its analysis, the tribunal relied on “applicable” interpretation principles to ascertain which conduct by the state was in fact covered by the arbitration agreement. The tribunal concluded that in order to find the “real intentions of the parties” it had to look at their “expectations...in light of the agreement seen as a whole,” accepting as real only “reasonable and legitimate expectations.” It held “that the state did not intend to consent to arbitrate disputes other than those related to fines and penalties,” but that the fines and penalties included all claims presented “except those relating to the implementation of the Payment Trusts and to the customs duties.”
After considering the claims under the arbitration agreement, the tribunal proceeded to analyze claims not covered by the agreement under the BIT. The tribunal first dismissed Ecuador’s argument that “cumulative basis for jurisdiction” was inappropriate, holding that that there are different ways of invoking the tribunal’s jurisdiction. Furthermore, the parties’ agreement to invoke the ICSID arbitration under an agreement did not “in and of itself preclude the Claimants’ from availing themselves of the Treaty for additional claims outside the scope of the Arbitration Agreement.” In fact, only an explicit waiver of the treaty would suffice to limit the application of the ICSID arbitration. The tribunal held that it had jurisdiction over the dispute arising out of the implementation of the payment trust under the BIT, but refused to extend its jurisdiction to the custom duties, which it held were a type of tax which was excluded under Article X(2).
Applicable Law
The Claimants also invoked the BIT as applicable law under the arbitration agreement. Article 42(1) leaves the decision regarding the applicable law to the parties. When parties fail to agree on applicable law, Article 42(1) directs “the Tribunal [to] apply the law of the Contracting State party to the dispute...and such rules of international law as may be applicable.” The tribunal held that the parties agreed that both Ecuadorian law and international law applies, and that international law included provisions of the BIT.
Damages
The tribunal held that Ecuador breached its obligations by: 1) failing to fulfill the payment schedule agreed upon under the PPAs, 2) improperly implementing the Payment Trust agreements, 3) owing interest to Claimants on certain late payments and 4) imposing unjust fines. Furthermore, the tribunal found that these violations “resulted in the breach of the umbrella clause [of the BIT] with regard to Electroquil and of the principle of fair and equitable treatment with regard to both Claimants.” To assess the damages due, the tribunal again invoked the applicable law (both Ecuador law and international law were found to be applicable) and held that the “method [of calculating damages] based on commercial losses...is the most appropriate method” for this dispute. Applying this method to the facts, the tribunal awarded the Complainants $5,578,566 plus interest for the breaches enumerated and also $96,980.64 for late payments.
Prosecutor v. Milan Martic (ICTY, Appeals Chamber – October 8, 2008)
Click here for document. (Approximately 6 pages).
In a decision announced on October 8, 2008, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia confirmed the 35-year prison sentence handed down in 2007 against former Serb leader in Croatia, Milan Martic. He was found guilty by the Trial Chamber of 16 counts of crimes against humanity and war crimes for his role in the events that took place between August 1991 and December 1995 in the Serbian Autonomous Region of Krajina (SAO Krajina) and the Republic of Serbian Krajina (RSK). According to the Appeal Judgment Summary, “Martic held various positions within the government of the SAO Krajina, which later evolved into the RSK. These positions included Chief of the Police in Knin, Secretary for Internal Affairs of the SAO Krajina, Deputy Commander of the Territorial Defence of the SAO Krajina, Minister of Defence of the SAO Krajina, Minister of the Interior of the SAO Krajina and of the RSK and, from 25 January 1994 onwards, President of the RSK.” According to the Trial Chamber’s findings, the accused “participated in a joint criminal enterprise, the common purpose of which was the establishment of an ethnically Serb territory through the displacement of the non-Serb population.” As a result, the Trial Chamber found Martic guilty of the following crimes:
- persecution as a crime against humanity;
- murder as a crime against humanity;
- murder as a violation of the laws or customs of war;
- imprisonment as a crime against humanity;
- torture as a crime against humanity;
- inhumane acts as a crime against humanity;
- torture as a violation of the laws or customs of war;
- cruel treatment as a violation of the laws or customs of war;
- deportation as a crime against humanity;
- forcible transfer as a crime against humanity;
- wanton destruction of villages or devastation not justified by military necessity as a violation of the laws or customs of war;
- destruction or wilful damage done to institutions dedicated to education or religion as a violation of the laws or customs of war; and
- plunder of public or private property as a violation of the laws or customs of war.
- murder as a crime against humanity;
- murder as a violation of the laws or customs of war;
- inhumane acts as a crime against humanity;
- cruel treatment as a violation of the laws or customs of war; and
- attacks on civilians as a violation of the laws or customs of war.
- alleged error of law by not providing a reasoned judgement;
- alleged violations of his right to be tried by an impartial tribunal and to be presumed innocent;
- alleged error of law regarding the evaluation of evidence;
- alleged errors of law regarding joint criminal enterprise;
- alleged errors of fact in findings concerning the joint criminal enterprise;
- alleged error of law regarding the mode of commission of ordering;
- alleged errors of fact concerning the shelling of Zagreb;
- alleged errors of fact in making erroneous and insufficient findings;
- alleged errors of fact concerning sentencing.
The Prosecution appealed the Trial Chamber’s “finding that people hors de combat could not be victims of crimes against humanity.” The Appeals Chamber agreed with the Prosecution and held that the Trial Chamber “erred in law in this respect” because “[t]here is nothing in the text of Article 5 of the Statute [crimes against humanity] or previous authorities of the Appeals Chamber that requires individual victims of crimes against humanity to be civilians.” Furthermore, had the Trial Chamber not erred on this point, the defendant could have been convicted “under Article 5 for murder, torture, inhuman acts and persecution for acts committed against victims who were hors de combat at the time of the commission of the offence.” The Appeals Chamber refused to increase the sentence, however, holding that “the material acts underlying the conviction are the same” and therefore “do not warrant an increase of sentence.” Finally, with respect to convictions that were reversed on appeal, the Appeals Chamber found that these reversals “have minimal impact on Martic’s overall culpability in light of the remaining crimes for which he was convicted and the impact they had on the victims.”
Prosecutor v. Yussuf Munyakazi (ICTR, Appeals Chamber – October 8, 2008)
Click here for document. (Approximately 21 pages).
The Appeals Chamber of the United Nations International Criminal Tribunal for Rwanda (ICTR) upheld the decision by the Trial Chamber denying the application by the Prosecution for referral of Yussuf Munyakazi’s case to Rwanda. Munyakazi, a former businessman and farmer in Cyangugu Province, was jointly indicted in 1997 with two other defendants, and was charged with genocide, or alternatively, with complicity in genocide, and extermination as a crime against humanity.
On September 7, 2007 the Prosecutor, relying on Rule 11bis of the Rules of Procedure and Evidence, requested the referral of his case to Rwanda. Munyakazi opposed the referral. Under the Rule the Trial Chamber can “refer a case to a competent national jurisdiction for trial if it is satisfied that the accused will receive a fair trial and that the death penalty will not be imposed.” In determining the competency of another state to provide a fair trial, “the Trial Chamber must first consider whether it has a legal framework which criminalizes the alleged conduct of the accused and provides an adequate penalty structure. The penalty structure within the state must provide an appropriate punishment for the offences for which the accused is charge and conditions of detention must accord with internationally recognized standards.” The Trial Chamber’s referral decisions are discretionary and the “Appeals Chamber will only intervene if the Trial Chamber’s decision was based on a discernible error.”
At issue at trial and on appeal were two laws, both dealing with the imposition of a maximum penalty for defendants in Rwanda: 1) Transfer Law and 2) the Abolition of Death Penalty Law. While “there was no inconsistency” between the two laws, “Article 3 of the Abolition of Death Penalty Law replaces the death penalty with either ‘life imprisonment’ or ‘life imprisonment with special provisions,’” where the latter is imposed for special crimes “including genocide, crimes against humanity, torture and murder,” the defense argued and the Trial Chamber agreed that this latter provision in certain circumstances amounted to a life sentence spent in total isolation. This in turn, the Trial Chamber held, was only appropriate if specific “safeguards” were imposed by the proper authorities ensuring that only particular cases would fall within this category. Since the Trial Chamber did not find such safeguards in place in Rwanda, it concluded that “the penalty structure was inadequate” and therefore denied the referral.
The Prosecution appealed this finding arguing that “life imprisonment in solitary confinement” was not against “internationally recognized standards,” and that the Trial Chamber’s reliance on the Abolition of Death Penalty Law was misplaced. The Appeals Chamber reviewed the lower Chamber’s analysis and found it “unclear how [the] two laws may be interpreted in Rwandan courts.” The Appeals Chamber held that the lower tribunal did not err in holding that “genuine ambiguity about which punishment provision would apply to transfer cases” existed. This finding warranted the conclusion that “the current penalty structure in Rwanda is not adequate for the purposes of transfer under Rule 11bis.”
The second ground on appeal was the Trial Chamber’s determination regarding Rwanda’s judicial independence. The Appeals Chamber disagreed with the lower Chamber’s determination that the defendant would not receive a fair trial if he were tried by a single judge. There was in fact no international requirement regarding the number of judges and therefore the Trial Chamber erred in its conclusion with respect to this point. The Appeals Chamber also found error in the Trial Chamber’s conclusion regarding the limited review powers of the Supreme Court, which uses the same standard of review as the tribunal itself, and therefore is sufficiently equipped to review lower court decisions. In addition, the Appeals Chamber held that the “Trial Chamber erred in considering that there was a serious risk of government interference with the judiciary in Rwanda,” especially since the basis for such conclusion was outdated. Finally, the Trial Chamber’s sole reliance on a U.S. State Department Report on the independence of the Rwandan judiciary was inappropriate since the report only addresses general problems of the judiciary and no additional sources were consulted.
With respect to availability and protection of witnesses, the Appeals Chamber held that “there was sufficient information before the Trial Chamber of harassment of witnesses testifying in Rwanda, and that witnesses who have given evidence before the Tribunal experienced threats, torture, arrests and detentions, and, in some instances, were killed.” Whether information provided to the Trial Chamber was credible or not, the Appeals Chamber held that the result would be refusal to testify. With respect to witnesses outside of Rwanda, the Appeals Chamber held that the Trial Chamber did not err in accepting defendant’s statements that most of his witnesses reside outside Rwanda. Furthermore, the Appeals Chamber also concluded that there was sufficient evidence before the Trial Chamber that warranted its conclusion that “despite the protections available under Rwandan law, many witnesses residing outside Rwanda would be afraid to testify in Rwanda.”
Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) (International Court of Justice – October 15, 2008)
Click here for document. (Approximately 43 pages).
In an eight to seven split decision concerning the application of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) by Georgia against Russia, the International Court of Justice indicated provisional measures against both Georgia and Russia, demanding that:
“[b]oth refrain from any act of racial discrimination against persons, groups of persons or institutions; (2) abstain from sponsoring, defending or supporting racial discrimination by any persons or organizations, (3) do all in their power, whenever and wherever possible, to ensure, without distinction as to national or ethnic origin, (i) security of persons; (ii) the right of persons to freedom of movement and residence within the border of the State; (iii) the protection of the property of displaced persons and of refugees; (4) do all in their power to ensure that public authorities and public institutions under their control or influence do not engage in acts of racial discrimination against persons, groups of persons or institutions.”The Court also ordered the parties to
“facilitate, and refrain from placing any impediment to, humanitarian assistance in support of the rights to which the local population are entitled under the International Convention on the Elimination of All Forms of Racial Discrimination.”Finally, the parties were ordered to
“refrain from any action which might prejudice the rights of the other Party in respect of whatever judgment the Court may render in the case, or which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”Georgia instituted the proceedings against Russia on August 12, 2008 alleging violations of the CERD. The basis of the Court’s jurisdiction was Article 22 of the CERD, which provides that “[a]ny dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.” On August 14, 2008 Georgia filed the request for the indication of provisional measures “‘as a matter of utmost urgency’ and ‘in order to prevent irreparable prejudice to the rights of Georgia and its citizens under CERD.’”
Russia contested the Court’s jurisdiction arguing that 1) there was no dispute between the parties and therefore the Article 22 requirement was not met; 2) even if CERD were applicable, Articles 2 and 5 could not be applied extraterritorially; 3) even if there were breaches of the CERD, Russia was not in control of the region or the groups mentioned in the request and as a result could not be held responsible for the breaches; and 4) the parties did not initiate any preliminary negotiations prior to commencing the action before the ICJ, as required by the CERD.
The Court first determined whether it in fact had jurisdiction to hear the case and concluded that the dispute requirement in Article 22 was met since the parties disagreed on the extraterritorial applicability of Articles 2 and 5. It went on to hold that the procedural requirements had also been met, rejecting Russia’s contention that the parties’ failure to take part in other types of negotiations before reaching the Court resulted in lack of jurisdiction: “the fact that CERD has not been specifically mentioned in a bilateral or multilateral context is not an obstacle to the seisin of the Court on the basis of Article 22 of the Convention.”
The Court stated that the indication of provisional measures under Article 41 is limited to circumstances where the Court must act immediately in order to “ensure that irreparable prejudice shall not be caused to rights which are the subject of dispute in judicial proceedings.” In addition, there must be a clear “link...between the alleged rights the protection of which is the subject of the provisional measures being sought, and the subject of the proceedings before the Court on the merits of the case.”
The Court did not rule on the existence of breaches of the CERD because such determination was neither possible nor necessary at this stage of the proceeding. However, the Court held that “the rights in question...are of such a nature that prejudice to them could be irreparable [and] that violations of the right to security of persons and of the right to protection by the State against violence or bodily harm (Article 5, paragraph (b)) could involve potential loss of life or bodily injury and could therefore cause irreparable prejudice...[T]he Court further considers that violations of the right to freedom of movement and residence within a State’s borders (Article 5, paragraph (d) (i)) could also cause irreparable prejudice in situations where the persons concerned are exposed to privation, hardship, anguish and even danger to life and health; [Finally,] the Court finds that individuals forced to leave their own place of residence and deprived of their right of return could, depending on the circumstances, be subject to a serious risk of irreparable prejudice.”
Decision Requesting Additional Supporting Materials in Relation to the Prosecution's Request for a Warrant of Arrest Against Omar Hassan Al Bashir (International Criminal Court, October 15, 2008)
Click here for document. (Approximately 4 pages).
The International Criminal Court Pre-Trial Chamber I requested on October 15, 2008 additional supporting information relating to the Prosecution’s Request for warrant of arrest against Sudanese President Omar Hassan Al Bashir. The Prosecution filed the request for warrant of arrest on July 14, 2008 charging Al Bashir with genocide, crimes against humanity and war crimes, allegedly committed by him through state actors, the army and the Militia/Janjaweed during the armed conflict against organized rebel groups.
On March 31, 2005 the United Nations Security Council, pursuant to resolution 1953, referred the situation in Darfur, Sudan, to the International Criminal Court. Thereafter, the Prosecutor began an investigation of the situation in Sudan and after three years issued the request for warrant.
According to the Chamber’s decision, the Prosuction has until November 17, 2008 to submit the request materials.
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Author: Djurdja Lazic
To comment on this publication, send an e-mail message to Djurdja Lazic, ILM Managing Editor at dlazic@asil.org