• United Nations Security Council Report of the Secretary General: Women and Peace and Security (September 25, 2008)

• United Nations Security Council Resolution 1841 Extends the Mandate of the Panel of Experts for Sudan (October 15, 2008)

• United Nations General Assembly Draft Resolution Relating to the 2007 Report of the International Atomic Energy Agency (October 23, 2008)

• U.S. v. Al Moayad and Zayed (2d Cir. Oct. 2, 2008)

• U.S. – Continued Suspension of Obligations in the EC – Hormones Dispute (WTO Dispute Settlement Body, Appellate Body Report– Oct. 16, 2008)

• Boumediene v. Bush (D.C. Cir. Oct. 27, 2008)

• Prosecutor v. Lubanga – Decision on the Release of Thomas Lubanga Dyilo (International Criminal Court – Oct. 21, 2008)

• The Queen v. Khawaja, (Ontario Superior Court of Justice – Oct. 29, 2008)

• Limited Liability Company AMTO v. Ukraine (Arbitration Institute of the Stockholm Chamber of Commerce March 26, 2008)

• WTO Dispute Settlement One Page Case Summaries 1995 – 2007

United Nations Security Council Report of the Secretary General: Women and Peace and Security (September 25, 2008)

Click here for document. (Approximately 20 pages)

The report on women and peace and security was submitted by the Secretary General pursuant to the request by the Council to write a “follow-up report on the full and effective implementation of its resolution 1325 (2000), incorporating information on the impact of armed conflicts on women and girls in situations that are on the agenda of the Council, and also information on their protection and on the enhancement of their role in peace processes.” The Council also demanded that the report contain information on actions taken by the Member States so far to implement the provisions of resolution 1325 and whether such measures where successful.

The report is divided into four sections, each dealing with one specific aspect of the mandate: Sections I and II provide background information on issues that relate to “the impact of armed conflict on women,” including information on the most “critical areas and concerns;” Section III deals with the improvements made so far and also highlights the challenges of implementing resolution 1325; and Section IV contains a list of conclusions and recommendations from the Secretary General with respect to the role of women in armed conflict. The information used to draw up the report was provided by the Member States, numerous United Nations entities and independent groups and NGOs.

The report states that “[d]espite the Security Council’s repeated appeals to respect the equal rights of women and their role in peace processes and in peacebuilding, millions of women and children continue to account for the majority of casualties in hostilities, often in flagrant violation of human rights and humanitarian law.” However, in its concluding marks, the Secretary General notes that “Member States, the United Nations system and civil society have made some important progress towards developing and pursuing more comprehensive approaches towards the full implementation of resolution 1325 (2000), including through a better defined role of the Security Council.” The end result of these improvements “has made the overall peace and security architecture of the United Nations more sensitive to women’s needs in situations of armed conflict and post-conflict societies.”

The report notes the persistent “gap” between Member State policies and the requirements of resolution 1325. According to the report, still “[m]ore needs to be done at the country level to mainstream gender perspectives at every stage of conflict prevention, resolution and management as well as peacebuilding, including security sector reform; prevent and end sexual and gender-based violence; increase women’s representation in decisionmaking bodies and security institutions; increase resources and technical support for women’s organizations; and ensure stronger United Nations capacity to support Member States in implementing resolution 1325 (2000).”

United Nations Security Council Resolution 1841 Extends the Mandate of the Panel of Experts for Sudan (October 15, 2008)

Click here for document. (Approximately 2 pages)

On October 15, 2008 the Security Council, noting that the situation in Sudan continues to constitute a threat to international peace and security in the region, unanimously adopted resolution 1841 pursuant to Chapter VII of the United Nations Charter. The resolution extended for one year the mandate of the Panel of Experts, originally appointed pursuant to Resolution 1591 (2005) to monitor the arms embargo in Sudan.

According to the resolution, the Panel is mandated to provide the Security Council with three different reports: 1) a midterm briefing of the Panel’s work, due within 90 days after the adoption of the resolution; 2) an interim report and 3) a final report, due 30 days prior to the termination of the mandate, listing the Panel’s “findings and recommendations.” The Panel is also requested to “coordinate its activities as appropriate with the operations of the African Union-United Nations Hybrid Operation in Darfur (UNAMID), and with international efforts to promote the political process in Darfur, and to assess in its interim and final reports progress towards reducing violations by all parties of the measures imposed by ... resolution 1556 (2004) and...resolution 1591 (2005), and progress towards reducing impediments to the political process, threats to stability in Darfur and the region and other violations of the above-mentioned resolutions.”

The Security Council press release noted that “200,000 people have been killed and some 2 million displaced since fighting broke out in early 2003, pitting rebels against the Sudanese Government and its allied militias, [and that] [i]n its recent reports, the Panel noted violations of resolutions by rebels, militias and the Government, and said that the Government had used white aircraft in offensive overflights in Darfur, including in at least one instance a plane with ‘UN’ markings.” Aware of such illegal military action by the Government, the Security Council demanded that there “be no aerial bombings nor the use in Darfur, by any party to the conflict, of white aircraft or aircraft with markings resembling those on United Nations aircraft, and demanding that the parties to the conflict exercise restraint and cease military action.”

United Nations General Assembly Draft Resolution Relating to the 2007 Report of the International Atomic Energy Agency (October 23, 2008)

Click here for General Assembly document. (Approximately 2 pages); Click here for the 2007 Report. (Approximately 112 pages)

On October 23, 2008 the United Nations General Assembly took note of the International Atomic Energy Agency (IAEA) 2007 report and through a draft resolution reaffirmed “its strong support for the indispensable role of the IAEA in encouraging and assisting the development and practical application of atomic energy for peaceful uses, in technology transfer to developing countries and in nuclear safety, verification and security.” According to the official General Assembly press release, delegates’ adoption of the resolution comes as a result to the numerous demands by states “to increase awareness of the potential for nuclear material to fall into the hands of terrorists, and to recognize the central importance of development for achieving energy security.” The draft resolution also notes previous instruments that have dealt with the issue of nuclear and radiological proliferation and calls upon the Member States “to continue to support the activities of the IAEA.” The IAEA 2007 report is also noteworthy because it was issued on the 50th anniversary of the founding of the IAEA.

The International Atomic Energy Agency is an independent body that, pursuant to an “Agreement governing the relationship between the United Nations and the IAEA as approved by the General Conference of the IATA” in 1956, works closely with the United Nations. Its general function is to oversee cooperation among the member states in the nuclear field, by "promot[ing] safe, secure and peaceful nuclear technologies." In order to achieve this objective, the IAEA reports annually to the UN General Assembly and, in case of non-compliance by States with their safeguards obligations, to the Security Council.

The IAEA 2007 Report is divided into four chapters, each dealing with a particular aspect of the Agency’s activities, such as Technology, Safety and Security, Verification and Management of Technical Cooperation.

U.S. v. Al Moayad and Zayed (2d Cir. October 2, 2008)

Click here for document. (Approximately 68 pages)

While this Court of Appeals case centers on United States Federal Rules of Evidence and might therefore be regarded by some readers as not international in nature, the case exposes the issues U.S. courts are facing with respect to terrorist-related cases.

In this case, two Yemeni citizens were convicted of conspiring and attempting to provide material support to terrorist organizations (Hamas and Al-Qaeda). Defendants Al Moayad and Zayed were each sentenced to 75 and 45 years imprisonment respectively. Both defendants appealed their convictions on several grounds, including the alleged erroneous inclusion of evidence under Rule 403 of the Federal Rules of Evidence. The Court of Appeals vacated the convictions and remanded the case for further proceedings before a new district court judge.

The Court of Appeals summarized the requirements under Rule 403, which allows the court to exclude relevant evidence ‘“if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’” To ensure that relevant evidence otherwise includable is nonetheless excluded for the reasons stated, the court reviewing the evidence must balance the ‘“the preferred evidence’s probative value with the risk of prejudice’” (citing United States v. Awadallah, 436 F.33d 125, 131 (2d Cir. 2006)).

At issue before the Court of Appeals were several types of evidence, such as the testimony of two individuals, notes taken by an informant, video tape of a wedding and documents submitted to the FBI through various channels. The Court held that individually and taken together the inclusion of the evidence was not harmless error and that the judge’s decision to include such evidence “deprived the defendants of a fair trial.”

This case highlights some of the issues law enforcement agencies are facing when attempting to build a case against terrorist suspects or individuals suspected of aiding and abetting terrorist organizations. Most of such cases rely on information obtained from informants, who themselves have a lot to gain or lose, speculative documents and other audio/visual evidence that is conflicting.

U.S. – Continued Suspension of Obligations in the EC – Hormones Dispute (World Trade Organization Dispute Settlement Body, Appellate Body Report– October 16, 2008)

Click here for document. (Approximately 333 pages)

On October 16, 2008 the Appellate Body published the report in the Hormones Dispute between the European Communities (EC) and U.S. The EC had appealed certain issues of law covered in the Panel Report issued on March 31, 2008 wherein the EC alleged that continued U.S. use of retaliatory measures was in violation of Articles I and II of the GATT 1994, and Articles 21.5, 22.8, 23.1, 23.2(a) and (c) of the Dispute Settlement Understanding (DSU). More specifically, the EC wanted the Panel to review whether the following acts by the U.S. constituted a violation of the above rules: 1) continued failure by the U.S. to remove retaliatory measures despite the EC’s removal of the WTO-inconsistent measures; 2) the U.S. determination that new EC legislations continued to violate WTO rules and 3) the U.S. failure to disregard DSU Article 21.5, 22.8, 23. 1 and 23.2(a) and (c) pertaining to the WTO dispute settlement procedures.

The Panel Report concluded that U.S. in fact did violate Articles 23.1 and 23.2(a) of the DSU. However, the Panel held that U.S. had not violated Article 22.8 and that this finding resulted in the EC’s failure to establish a violation of Articles 21.3 and 3.7 of the DSU. The Panel Report then recommended that the Dispute Settlement Body request the U.S. to bring its measures into conformity with its obligations under the DSU.

In its lengthy review of the Panel Report, the Appellate Body agreed with the Panel that the EC had failed to establish a violation of Articles 23.1 and 3.7 of the DSU as a result of a breach of Article 22.8. The Appellate Body reversed the Panel’s finding that the U.S., ‘“by maintaining its suspension of concessions even after the notifications of [Directive 2003/74/EC]’” sought to rectify a violation with respect to EC Directive, within the meaning of Article 23.1 of the DSU. It also reversed the Panel’s conclusion that the United States “‘made a determination within the meaning of Article 23.2(a) in relation to Directive 2003/74/EC’ on the basis of statements made at DSB [Dispute Settlement Body] meetings and the fact that the suspension of concessions continued subsequent to the notification of Directive 2003/74/EC, and that the United States ‘failed to make any such determination consistent with the findings contained in the panel or Appellate Body report adopted by the DSB or an arbitration award rendered under the DSU,’ in breach of Article 23.2(a).”

The Appellate Body also found that the Panel applied the wrong standard of review in determining whether the EC’s risk assessment was according to the requirements of Article 5.1 of Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). Furthermore, it reversed the Panel’s finding that “there must be a critical mass of new evidence and/or information that calls into question the fundamental precepts of previous knowledge and evidence so as to make relevant, previously sufficient, evidence now insufficient.” The Appellate Body concluded that since they did not analyze the consistency of the EC Directive with Article 22.8 of the DSU, the first EC-Hormones ruling will “remain operative.”

Boumediene v. Bush (D.C. Cir. October 27, 2008)

Click here for document. (Approximately 6 pages)

In a preliminary order in the pending habeas corpus case brought by a detainee held by the U.S. government at its Guantanamo Bay detention facility, the Court considered which definition to employ for the term “enemy combatant.” Judge Richard Leon held that because there is no clear definition of the term “enemy combatant” by either the Supreme Court or the D.C. Circuit Court of Appeals, he would “adopt the same definition that was employed in the [Combatant Status Review Tribunal] CSRT hearings” with respect to the defendants in this case. The definition adopted by the District Court reads as follows: “An ‘enemy combatant’ is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

According to the ruling, the role of the judiciary is “to determine whether definitions crafted by either the Executive or the Legislative branch, or both, are consistent with the President’s authority under the Authorization for Use of Military Force [AUMF]...and his war powers under Article II of the Constitution.” After determining that the definitions in question are consistent with the Constitution and the AUMF, the court is limited to “interpreting the meaning of the definition as it applies to the facts of any given case.” In the process of determining the proper interpretation of a term, the court will “review and evaluate various iterations of the definitions drafted by the Executive and/or Congress...and determine whether there is one version consistent with both the AUMF and Article II.” Since the definition used by the CSRT was drafted by the President and approved by Congress it passes the above muster.

Both the prosecution and the defense had recommended different definitions for the term enemy combatant: “The Government proposes a revised, and somewhat expanded, version of earlier definition crafted by the Department of Defense...Detainees’ counsel, not surprisingly, have proposed a much narrower version, requiring that ‘civilians,’ such as the detainees here, ‘directly participat[e] in hostilities as part of an organized armed conflict against the United States.’” However, Judge Richard Leon found both definitions “were going to far” and that in the end he “was likely to end up somewhere in the middle.”

Prosecutor v. Lubanga – Decision on the Release of Thomas Lubanga Dyilo (International Criminal Court - October 21, 2008)

Click here for document. (Approximately 26 pages)

In its most recent decision in the case Prosecutor v. Lubanga, the Appeals Chamber of the International Criminal Court (ICC) held that the imposition of a conditional stay of the proceedings does not mean that the accused will automatically be released from custody nor is this ‘“the only correct course’ to take. Instead, the Chamber will have to consider all relevant circumstances and base its decision on release or detention” based on specific criteria found in Articles 60 and 58(1) of the Rome Statute.

According to the procedural history, the Trial Chamber issued a decision on July 2, 2008 ordering the release of Lubanga after it rendered a decision to stay the proceedings against the defendant on the basis that certain exculpatory documents were not disclosed to the defense. According to the Trial Chamber, the decision to stay the proceedings and the decision to release the defendant were “linked” and the continued custody of the defendant could not be justified even if the warrant of arrest was valid. It further stated that “the logical-indeed inevitable consequence of the [Decision to Stay the Proceedings] is that the only correct course is to order the release of the accused, because, consistent with the [Decision to Stay the Proceedings] and on the basis of available information, a fair trial of the accused is impossible, and the entire justification for his detention has been removed.”

The Prosecutor appealed this finding on two grounds: First, the Trial Chamber committed a procedural error when it decided to release the defendant pending an appeal before the Appeals Chamber. Secondly, the Prosecutor argued that “the release of Mr. Lubanga Dyilo was disproportionate and premature.” While the Appeals Chamber did not uphold the first ground of the appeal, it did find that the decision to release the defendant “was erroneous because...when ordering the unconditional release of Mr. Lubanga Dyilo, [the Trial Chamber] failed to take the conditional character of the stay it had imposed properly into account.” This in turn resulted in the failure by the Trial Chamber “to consider all the options that were at its disposal and to assume erroneously that the unconditional release of Mr. Lubanga Dyilo was ‘inevitable.’”

The Appeals Chamber based its reversal of the Trial Chamber’s decision on Articles 60 and 58(1) of the Rome Statute, governing the pre-conviction detention of defendants. It held that although under regular circumstances, where “a permanent and irreversible stay of the proceedings is imposed,” the defendant should be released, in the case at hand, where the “proceedings have only been stayed conditionally...the Court is not necessarily permanently barred from exercising jurisdiction in respect of the person concerned.” Thus, it appears that the conditional character of the stay gave the Trial Chamber other alternatives besides automatic release of the defendant.

The Queen v. Khawaja, (Ontario Superior Court of Justice - October 29, 2008)

Click here for document. (Approximately 63 pages)

Mohammad Momin Khawaja is the first person charged and convicted under Canada's terrorism provisions. He was convicted for participating in a plot to bomb targets in Britain. According to the decision issued on October 29, 2008 the indictment against Khawaja alleged seven separate offences under the Terrorism Section of the Criminal Code, including the making of a device to activate a detonator that would cause an explosion likely to harm civilians and property in the U.K. The judge found Khawaja guilty of 1) working on the development of the detonator, 2) enabling another to use the device to harm human life or cause serious damage to property, 3) participating in a terrorist group by assisting its members through logistical and financial means and 4) participating in terrorist type training that took place in Pakistan with the intent to assist the terrorist group in the U.K. The group’s aims were never realized and several of its members were found guilty and sentenced last year by a U.K. court for their terrorist activities. One of the members is currently awaiting trial in the U.S.

The most significant aspect of this decision is the fact that it is the first time a Canadian court applied the terrorist provisions of the criminal code to convict a defendant charged with terrorism. The decision highlights several challenges the courts are facing in applying general criminal law rules, such as rules on hearsay and the appropriate mens rea for a criminal acts, to the facts of a terrorism charge. For example, in Canada, like in most countries, under the criminal code some statements and declarations made by a co-conspirator can be use against another if such declarations and statements “are in furtherance of the common plan,” even if such evidence is hearsay and therefore generally excluded. The question during trial arose whether a “common plan” in fact existed, and what this “common plan” entailed. While prosecutors attempted to describe the “common plan” very broadly, arguing that “the overall common design is violent Jihad wheresoever it might ultimately be committed,” the defense argued that the Jihad was not a “common plan” but an idea, and therefore not specific enough under the criminal code.

Justice Rutherford turned to the “mechanism introduced into the terrorism offence provisions, qualifiers or clauses” to determine which proposition was correct and held that instead of using the “common plan” rule he would “look at the evidence admissible against [Khawaja] directly, in the context of the provisions of the Code.” He added that he would look at the actions of others if necessary “as background that may give meaning to Khawaja’s own actions.” He proceeded to analyze the activities of other group members to determine “whether and to what degree Momin Khawaja was a knowledgeable participant in this terrorist activity.” In the end, Rutherford concluded that the review of evidence supporting the charge against Khawaja left “no reasonable doubt” that Khawaja “was knowingly participating in and supporting a terrorist group.”

Finally, Justice Rutherford’s definition of terrorist activity was seen as very controversial. He held that “[i]n my view, combatants, lawful or otherwise, who actually engage in armed conflict in a manner that otherwise meets the definition of ‘terrorist activity’ are protected from prosecution under Canada’s terrorism provisions if their actions are in accordance with the conventional and customary principles governing warfare. If their actions are not so governed, they may possibly be dealt with as war criminals or under the domestic law they may have contravened.”

Limited Liability Company AMTO v. Ukraine (Arbitration Institute of the Stockholm Chamber of Commerce - March 26, 2008)

Click here for document. (Approximately 67 pages)

This arbitration proceeding before the Arbitration Institute of the Stockholm Chamber of Commerce was commenced by AMTO, a Latvian LLC, pursuant to Article 26 of the Energy Charter Treaty (ECT), alleging that Ukraine had breached various provisions of the ECT According to the allegations, Articles 10(1) (Promotion, Protection and Treatment of Investments), 10(12) (Effective Enforcement of Rights under Domestic Law), and 22(1) (ECT Umbrella Clause) of the ECT were breached and as a result AMTO suffered injuries for which it sought compensation. Ukraine, on the other hand, claimed that the Arbitral Tribunal lacked jurisdiction over the dispute and denied any wrongdoing. In addition, Ukraine denied the claims for compensation, and counterclaimed seeking damages for cost of the arbitration.

The facts of the case extend over a period of years and include numerous agreements and issues. In sum, however, the root of the dispute is the debt owned to AMTO by the largest nuclear power plant in Ukraine (ZAES), which in turn was a division of the National Nuclear Power Generating Company Energoatom. At some point, ZAES owed money to AMTO and AMTO obtained several judgments against ZAES in Ukrainian courts. The execution of these judgments, however, was stayed because of an ongoing bankruptcy action against ZAES. In 2006, Energoatom (acting on behalf of ZAES) entered into an “Agreement on Substitution of Primary Obligation by the New Obligation Between the Same Parties,” wherein the judgments were acknowledged and a new debt obligation repayment was agreed upon. AMTO requested arbitration alleging inter alia unfair and inequitable treatment, discrimination and interference with contractual obligations.

While the Tribunal found that it had jurisdiction over claims submitted by AMTO, it still dismissed the case holding that there was “no breach of the ECT by or attributable to the Respondent has been established.” The Tribunal went on to say that “[t]he arbitration of foreign investment disputes raises difficult questions of responsibility, both in the factual sense of establishing the operative causes of the loss, and in terms of legal responsibility. In the present case, the Claimant [AMTO] established the contractual responsibility of Energoatom in Ukrainian law in the Ukrainian domestic courts. It has failed to establish any liability under the ECT for Ukraine.” In conclusion, the non-payment of debt alleged by AMTO could not be attributed to Ukraine and “the responsibility for the non-payment of EYUM-10's debts for so long, in fact and in law, lies with Energoatom.”

World Trade Organization Dispute Settlement One Page Case Summaries 1995 – 2007

Click here for document. (Approximately 172 pages)

Readers interested in and following the developments of the World Trade Organization, should note that the second edition of WTO Dispute Settlement One-Page Case Summaries, covering all panel and Appellate Body reports adopted by the Dispute Settlement Body (DSB) up to December 31, 2007 was published this past summer. The publication is available for free and is “a simple, straightforward explanation of the key points emanating from the continually expanding body of WTO jurisprudence.” According to its editors, “the publication attempts to summarize on a single page the core facts and substantive findings contained in the adopted panel and, where applicable, Appellate Body reports for each decided case [and] key findings on significant procedural matters.” For further information about the publication, please consult the WTO Online bookshop.