• The Committee Against Torture – 41st Session Final Observations and Recommendation (November 21, 2008)

• Report of the United Nations Secretary General on the United Nations Interim Mission to Kosovo (November 24, 2008)

• Protocol on the Statute of the African Court of Justice and Human Rights (July 1, 2008)

• External Audit Quality and Banking Supervision (Basel Committee on Banking Supervision, December 2008)

• Application of the Convention on the Prevention and Punishment of the Crime of Genocide – Preliminary Objections (Croatia v. Serbia) (I.C.J. November 18, 2008)

• Dispute Concerning the Implementation of Article 11, paragraph 1 of the Interim Accord of 13 September 1995 (Macedonia v. Greece) (I.C.J. November 13, 2008)

• Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber Decision to Lift the Stay of the Proceedings (I.C.C. November 18, 2008)

• Situation in Darfur, the Sudan – Summary of the Prosecutor's Application under Article 58 (I.C.C. November 20, 2008)

The Committee Against Torture - 41st Session Final Observations and Recommendation (November 21, 2008)

Click here for Committee's official website.

The Committee Against Torture (Committee) concluded its 41st session on November 21, 2008. The following state reports were considered during the session: Belgium, China, Kazakhstan, Kenya, Lithuania, Montenegro and Serbia.

According to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) Article 19(1), “States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of the Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken and such other reports as the Committee may request.” Once a report is received, the Committee is tasked with reviewing it and, at its discretion, allowed to “make such general comments on the report as it may consider appropriate.” After consideration by the Committee, the comments are forwarded to the state in question, which in turn has the ability to “respond with any observations it chooses to the Committee.” The reporting state must follow the Form and Content Guidelines provided by the Committee, which require the state to give detailed information regarding its implementation of the CAT.

The Committee considered for the first time reports by Kenya, Montenegro and Serbia. Although different in substance, the Committee noted in response to all three reports that the countries had made efforts to “strengthen [their] legal framework[s] and safeguard universal human rights protection.” However, the Committee insisted that still more work needed to be done regarding the independence of the judiciary and access to justice generally. In the case of Montenegro and Serbia, the Committee noted that the consequences of the civil war were still plaguing the states' ability to implement the CAT. For example, Montenegro was criticized for not addressing a “climate of impunity surrounding war crimes” and, while Serbia was applauded for its cooperation with the International Criminal Tribunal for the Former Yugoslavia, it was also cautioned that it must continue to bring individuals suspected of war crimes to justice.

The most noteworthy report was the one issued on China. According to the report, while China has addressed “the practice of torture and related problems in the criminal justice system, the Committee remains deeply concerned about the continued allegations, corroborated by numerous Chinese legal sources, of routine and widespread use of torture and ill-treatment of suspects in police custody, especially to extract confessions or information to be used in criminal proceedings. Furthermore, the Committee notes with concern the lack of legal safeguards for detainees.” The Chinese government did not agree with the Committee's observations and issued a public statement (statement made by Foreign Ministry Spokesperson Qin Gang) chiding the Committee’s observations: “China respects and protects human rights, and always opposes torture. China has earnestly fulfilled its obligations set out in the UN Convention against Torture and made great achievements through persistent efforts in this regard....To our regret, some biased committee members, in drafting the observations, chose to ignore the substantial materials provided by the Chinese Government, quote [sic] and even fabricated some unverified information. Running counter to the ethics of justice and objectiveness, they attempted to politicize the review by squeezing some unreal and stigmatized comments into the concluding observations, which China firmly opposes.”

Report of the United Nations Secretary General on the United Nations Interim Mission to Kosovo (November 24, 2008)

Click here for document. (Approximately 24 pages)

Pursuant to Security Council Resolution 1244 (1999), which established the United States Interim Administration Mission in Kosovo (UNMIK), the Secretary General submitted a report on the implementation of the mandate. The reporting period extends from June 26 to October 31, 2008.

The report noted the political developments, including the steps taken by the Kosovo authorities to exert their sovereignty in the region, and also the response by Serbia, in the form of a General Assembly resolution, requesting that the International Court of Justice issue an advisory opinion on the legality of Kosovo's “unilateral declaration of independence,” and the subsequent statement of regret by Kosovo's authorities with respect to the passing of the resolution. According to the report, Kosovo considers the declaration “irreversible” and according to Kosovo the proceeding before the ICJ “would not prevent other countries from appreciating the constant progress in Kosovo or recognizing it as an independent state.”

The report made note of the conflicting views among Kosovo's inhabitants regarding the final authority within the region. According to the report, “[a] majority of Kosovo Serbs strongly reject any authority or symbol of Kosovo institutions” and “continue to recognize UNMIK as their sole and legitimate civilian international interlocutor.” The disagreement about the final authority in Kosovo has led to “increasing difficulties [for the Special Representative] in exercising his mandate,” and while the Special Representative is still technically in charge and “formally vested with executive authority under Resolution 1244..., he is unable to enforce his authority.” The situation is exacerbated by the fact that while the mission continues its presence in the region, “Kosovo authorities frequently question” its authority.

As a result of the changed realities in Kosovo, UNMIK has started a “reconfiguration” process. What exactly this reconfiguration process will entail is not clear from the report. What the report does mention is that the process is “transparent” and respects the views of “all stakeholders” and “is consistent with the United Nations position of strict neutrality on the question of Kosovo's status.”

Protocol on the Statute of the African Court of Justice and Human Rights (July 1, 2008)

Click here for document. (Approximately 27 pages)

During the African Union Summit in the summer of 2008, the Protocol on the Statute of the African Court of Justice and Human Rights (Protocol) creating an African Court of Justice and Human Rights (Court) was adopted. The Protocol merges the African Court on Human and Peoples' Rights and the Court of Justice of the African Union into one single court (Article 2). The Protocol thus replaces the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (adopted in 1998) and the Protocol of the Court of Justice of the African Union (adopted in 2003) (Article 1). The Protocol and the Statute annexed “shall enter into force thirty (30) days after the deposit of the instruments of ratification by fifteen (15) Member States” (Article 9).

The Court's Statute gives a detailed summary regarding the organization and the procedure of the Court. As the name suggests, the Court will be divided into two sections, a General Affairs Section and a Human Rights Section, where the former will “be competent to hear all cases submitted under Article 28 of the Statute” unless they are considered to belong to the Human Rights Section (Article 17).

Articles 3 to15 govern the selection, election and replacement of judges. According to Article 3, the Court will be composed of sixteen judges, nationals of states that are parties to the Protocol and appointed for a term of six years, with the ability to be “re-elected only once” (Article 8). A State Party can only have one judge at a time and all judges must be “impartial and independent” and “with high moral character” (Article 4). Article 7, which states that the Executive Council will elect the judges and the Assembly will then appoint them, also mentions that “equitable gender representation” should be ensured. During their term, the judges shall enjoy “full privileges and immunities [like] diplomatic agents in accordance with international law” (Article 15). The compensation received for their service should be “free from all taxation” and not subject to change during a term (Article 23).

Chapter III governs the competence of the Court. Article 28 lists the types of cases the Court can hear and Article 29 enumerates the types of entities that can submit a case to the Court. The absence of a provision allowing individuals to bring claims before the Court - unless the Member State being sued made a “declaration accepting the competence of the Court to receive [such] cases”- is to be noted. Also interesting is Article 31 governing the applicable law, which enumerates all types of law to be considered by the Court, such as the Constitutive Act, international treaties, international customary law, general principles of law universally recognized by the African states, any other law relevant to the case, and other “judicial decisions and writings of the most highly qualified publicists...[as] subsidiary means” of interpretation. The decisions of the Court are binding (Article 45).

Finally, the Court is authorized to issue advisory opinions “on any legal question at the request of the Assembly, the Parliament, the Executive Council, the Peace and Security Council, the Economic, Social and Cultural Council (ECOSOC), the Financial Institutions or any other organ of the Union as may be authorized by the Assembly” (Article 53).

External Audit Quality and Banking Supervision (Basel Committee on Banking Supervision, December 2008)

Click here for document. (Approximately 17 pages)

The Basel Committee on Banking Supervision, established in 1974 by the central bank Governors of the Group of Ten countries, is made up of 13 states, including Belgium, Canada, France, Germany, Italy, Japan, Luxembourg, the Netherlands, Spain, Sweden, Switzerland, United Kingdom and United States. Its purpose is to draft and disseminate supervisory standards pertaining to a range of financial issues to be implemented by governments and banking institutions. While the Committee has no “formal supranational supervisory authority, and its conclusions do not, and were never intended to, have legal force,” the financial guidelines and recommendations regarding best practices and lessons learned are meant to “encourage[] convergence towards common approaches and common standards without attempting detailed harmonisation of member countries' supervisory techniques.” The Committee aims to “to close gaps in international supervisory coverage in pursuit of two basic principles: that no foreign banking establishment should escape supervision; and that supervision should be adequate.”

The Committee published this month a paper focusing on the quality of bank audits, more specifically the increased “risk of audit failures and a need for greater transparency” among big audit firms. According to the Committee the following “key areas” should be considered in decreasing the risk associated with bank audits: 1) “the [increased] reliance on external auditors’ expertise and judgments;” 2) the enhancement of market confidence achieved through “[h]igh quality audits;” 3) the increased reliance on “high-quality audits to complement supervisory processes;” and 4) growing lack of transparency among “major external audit firms” that have become more international.

To address the issues raised above, the Committee proposed these steps: 1) the existing supervisory standards should be improved and catered to suit the unique character of the financial institutions’ supervisory organs; 2) the supervisory organs should encourage “clarification of accounting principles in areas of specific interest;” 3) audit firms, as well as “other relevant bodies” should strive to cooperate and exchange ideas relating to potential market failures; 4) an increased “independent audit oversight” should be promoted; 5) audit transparency should be enhanced; 6) hands-on participation, including dialogue among interested parties to improve audit standards, should be encouraged.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide – Preliminary Objections (Croatia v. Serbia) (I.C.J. November 18, 2008)

Click here for Court's decision (approximately 53 pages); click here for Croatia's application (approximately 24 pages); click here for Federal Republic of Yugoslavia (Serbia is the legal successor of FRY) preliminary objections (approximately 122 pages)

The International Court of Justice held on November 18, 2008 that it had jurisdiction over the application by Croatia against Serbia regarding the applicability of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) pertaining to the conflict arising out of the dissolution of former Yugoslavia in 1992. The Court based its jurisdiction on Article IX of the Genocide Convention rejecting the preliminary objections raised by Serbia, which included a claim that Serbia lacked the ability to partake in the proceedings initiated by Croatia and a claim that the Court lacked ratione materiae jurisdiction to hear the case under Article IX of the Genocide Convention. Serbia also objected to other aspects of the application pertaining to the “trial of certain persons within the jurisdiction of Serbia, providing information regarding the whereabouts of missing Croatian citizens and return of cultural property.”

The Court addressed each of the objections raised by Serbia. As to the first objection regarding the capacity of Serbia to participate in the proceedings, the Court reject the argument by Serbia that it was not a member of the United Nations (UN) at the crucial time, i.e. when Croatia filed the application, and therefore not a party to the Statute of the Court. The Court reviewed the history of Serbia and that of its legal predecessors, namely the Socialist Federal Republic of Yugoslavia (SFRY) and the Federal Republic of Yugoslavia (FRY), and held that due to Serbia's conduct in the years prior to the filing of the application and the issuance of a declaration and an official note transmitted by the Permanent Mission of Yugoslavia to the UN in 1992, in which the FRY declared that it would assume the responsibilities of the SFRY conferred upon it by international instruments, Serbia was bound by the Genocide Convention, including Article IX.

Serbia's second objection was to the Court's jurisdiction ratione temporis. According to Serbia, “claims based on acts and omissions which took place prior to 27 April 1992,” the date on which Serbia became a state and the date on which the above mentioned declaration and note were transmitted to the UN, were beyond the Court's jurisdiction and therefore inadmissible. The Court refused to address this objection because it was not of a “preliminary character” and would require the Court to review facts that were beyond this stage of the proceedings.

The last objection brought by Serbia pertained to the location of missing Croatian citizens, the bringing to trial of certain Serbian nationals and the return of cultural property. The Court found these objections also to be beyond the Court's review of preliminary objections and held that the facts relating to them would have to be argued on the merits.

Croatia filed the application with the ICJ on July 2, 1999 alleging that “[b]etween 1991 and 1995, the Federal Republic of Yugoslavia repeatedly violated the Genocide Convention. By directly controlling the activity of its armed forces, intelligence agents, and various paramilitary detachments, on the territory of the Republic of Croatia, in the Knin region, eastern and western Slavonia, and Dalmatia, the Federal Republic of Yugoslavia is liable for the 'ethnic cleansing' of Croatian citizens from these areas - a form of genocide which resulted in large numbers of Croatian citizens being displaced, killed, tortured, or illegally detained, as well as extensive property destruction - and is required to provide reparation for the resulting damages.” Croatia also claimed that FRY, by “directing, encouraging, and urging Croatian citizens of Serb ethnicity in the Knin region to evacuate the area in 1995, as the Republic of Croatia reasserted its legitimate governmental authority, [it] engaged in conduct amounting to a second round of 'ethnic cleansing', in violation of the Genocide Convention.”

Dispute Concerning the Implementation of Article 11, paragraph 1 of the Interim Accord of 13 September 1995 (Macedonia v. Greece) (I.C.J. November 13, 2008)

Click here for document. (Approximately 14 pages)

The former Yugoslav Republic of Macedonia (Macedonia) initiated an application before the International Court of Justice (ICJ or Court) against Greece under the United Nations Interim Accord of 13 September 1995 (1995 Accord), seeking to establish that Greece violated its legal obligations under Article 11, paragraph 1, of the Interim Accord, and asking the Court to order Greece to abide to Article 11 of the Interim Accord pertaining to Macedonia's future invitations or applications for membership in international organizations. Macedonia invoked Article 21, paragraph 2, of the 1995 Accord, as the basis for the Court's jurisdiction. Article 21 states that “[a]ny difference or dispute that arises between the Parties concerning the interpretation of implementation of this Interim Accord may be submitted by either of them to the International Court of Justice, except for the differences referred to in Article 5, paragraph 1.”

The 1995 Accord was the result of a 17-year long dispute between the two countries over the use of the name Macedonia. Under the 1995 Accord, Greece recognized Macedonia “as an independent and sovereign state” (Article 1) and promised to “respect the sovereignty, the territorial integrity and the political independence” of Macedonia (Article 3). In addition, under Article 11, Greece agreed not to object to future applications by Macedonia to join “international, multilateral and regional organizations and institutions” so long as Macedonia was referred to in accordance to the United Nations Security Council resolution 817 (1993), which recommended that Macedonia be known as “the former Yugoslav Republic of Macedonia.”

In April of 2008 Greece blocked Macedonia's application to join the NATO and has allegedly also threatened that it will block Macedonia's bid to join the European Union. According to Macedonia, this move was in direct violation of Article 11 of the 1995 Accord and the Court is the proper venue to determine the legality of Greece's action.

Interestingly, Macedonia has affirmed that “the subject of this dispute does not concern - either directly or indirectly - the difference [that has arisen between Greece and itself over its name]” (see I.C.J. Press Release).

Prosecutor v. Thomas Lubanga Dyilo, Trial Chamber Decision to Lift the Stay of the Proceedings (I.C.C. November 18, 2008)

Click here for document. (Approximately 2 pages)

The International Criminal Court (ICC) Trial Chamber I decided on November 18, 2008 to lift the stay of the proceedings in the case of Prosecutor v. Thomas Lubanga Dyilo (Lubanga), imposed on June 13, 2008. Since the full reasoning of the order will be explained in a written decision to follow, the following summary pertaining to the lifting of the stay will be based on the official ICC press release. According to the press statement, the Chamber made the decision to set a provisional “date of Monday, 26 January 2009, for the commencement of the trial.” The reported reason to lift the stay “is based on the conviction that the reasons for imposing a halt 'have fallen away.'”

The ILIB has been following this case for a while, but for those readers who are just now getting familiar with the proceedings some background may be in order. Lubanga was the founder and leader of the Union des Patriotes Congolais (UPC). According to the Warrant of Arrest, Lubanga allegedly committed war crimes under Article 25(3)(a), including the conscripting and enlisting of children under the age of 15 into the military arm of the UPC and using them in armed conflicts from September 2002 to August 2003.

Initially, Trial Chamber I imposed a stay of the proceedings holding that the Prosecution improperly applied Article 54(3)(e) of the Rome Statute when obtaining evidence from sources such as the United Nations and other NGOs, thus violating the rights of the defendant Lubanga. Article 54(3)(e) allows the Prosecution to obtain confidential information and/or documents without requiring the disclosure to the defense of the confidential sources, so long as the only reason for using such information is to generate new evidence. The defense argued, and the Chamber agreed, that the extensive use of Article 54(3)(e) led to a nondisclosure of a vast amount of exculpatory evidence, which in turn resulted in Lubanga's inability to defend himself.

Once the trial was stayed, the defense argued that Lubanga should be released, a motion that was initially accepted by the Trial Chamber I but eventually lost on appeal. Since then Lubanga has been in custody awaiting the final decision by the Trial Chamber I on the motion to lift the stay of the proceedings.

Situation in Darfur, the Sudan – Summary of the Prosecutor's Application under Article 58 (I.C.C. November 20, 2008)

Click here for document. (Approximately 6 pages)

The International Criminal Court Office of the Prosecutor (Prosecution) has requested the issuance of warrants of arrest against several commanders of rebel groups in Darfur, who allegedly “carried out the [unlawful] attack charged in this Application.” According to the Application, the named Defendants have committed war crimes under Article 8(2)(c)(i) (murder and causing of severe injury to peacekeepers), Article 8(2)(e)(iii) (intentional attacks against personnel, installations, material, units or vehicles part of a peacekeeping mission), and Article 8(2)(e)(v) (pillaging) of the Rome Statute.

The Application charges the Defendants with planning and directing of the attack, which killed “twelve (12) peacekeepers and severely wounded eight (8) others.” The Application also alleges that the named Defendants “destroyed communications installations, dormitories, vehicles and other materials belonging to the AIMS [African Union Mission in Sudan].”

The Prosecution also made note of the Appeals Chamber ruling that “[a]n initial determination of the admissibility of a case cannot be made an integral part of the decision on an application for a warrant of arrest for the reason that Article 58(1) of the Statute lists the substantive prerequisites for the issuance of a warrant of arrest exhaustively.” However, according to the Application, notwithstanding the Appeals Chamber ruling, the “gravity and the complementarity” requirements were met and the Application therefore should be approved.