• Energy and Climate Change Package (European Parliament, Dec. 17, 2008)

• Belize-Guatemala Border Agreement (Dec. 8, 2008)

• Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (United Nations General Assembly, Dec. 10, 2008)

• S. and Marper v. U.K. (E.C.H.R. Dec. 4, 2008)

• Omar Khadr v. Bush (D.C. Cir. Nov. 24, 2008)

• Sarei et al. v. Rio Tinto, PLC & Rio Tinto Limited (9th Cir. Dec. 16, 2008)

• Prosecutor v. Radovan Karadzic – I.C.T.Y. Dec. 17, 2008)

• Prosecutor v. Bikindi (I.C.T.R. Dec. 2, 2008)

• U.S. v. Slough et al. (Blackwater Indictment) (D.C. Cir. Dec. 4, 2008)

• U.S. Securities and Exchange Commission v. Siemens Aktiengesellschaft (D.C. Cir. Dec. 12, 2008)

Energy and Climate Change Package (European Parliament, Dec. 17, 2008)

Click here for document (approximately 298 pages)

The European Parliament approved the EU climate change package which requires EU countries to cut carbon dioxide emissions by 20 %, make 20 % in energy savings, and increase the use of renewable energy sources up to 20 % by the year 2020.

The approval has received mixed reactions. The EU claims that the package will not only serve as a model to other nations, but also, according to Commission President José Manuel Barroso, form a “part of the solution both to the climate crisis and to the current economic and financial crisis.” Furthermore, the deal will “enhance the competitiveness of EU industry in an increasingly carbon-constrained world...encourage innovation, provide new business opportunities and create new green jobs.”

Several NGOs have stated that the final text is too general and insufficient for any real environmental betterment. According to the Greenpeace EU Climate & Energy policy director, Joris den Blanken, “[t]he Parliament has marginalised itself by lacking the courage to make even small changes to the compromises negotiated by the EU summit last Friday. Europe promised leadership on climate, but so far it has led us up the garden path. The climate package doesn't even take us half way to where we should be in the fight against climate change.”

Belize-Guatemala Border Agreement (Dec. 8, 2008)

Click here for document (approximately 5 pages)

Guatemala and Belize signed an agreement to submit their border dispute to the International Court of Justice (ICJ). Before the dispute can go before the ICJ, however, both parties have agreed to hold simultaneous referenda in their respective countries giving the people the right to decide whether the case should proceed to the ICJ (Article 7). According to the Preamble, both parties desire to “finally put an end to any and all differences regarding their respective land and insular territories and their maritime areas.”

Assuming that the referenda allow for the adjudication of the dispute at the ICJ, the parties agree that they will “accept the decision of the Court as final and binding, and implement it in full and in good faith” (Article 5). Furthermore, “the Parties agree that, within three months of the date of the Judgment of the Court, they will agree on the composition and terms off reference of a Bi-national Commission to carry out the demarcation of their boundaries in accordance with the decision of the Court” (Article 5). In case the parties cannot reach agreement regarding the make up of the Commission, “Secretary General of the Organization of the American States [will] appoint members” (Article 5).

The United States Department of State issued a statement applauding this development, which the U.S. “believes could lead to new economic and political cooperation, prosperity, and development in both countries.” The U.S. Department of State provides a short summary of the border dispute between the two countries.

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (United Nations General Assembly, Dec. 10, 2008)

Click here for document (approximately 8 pages)

The General Assembly adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (Protocol) aimed at strengthening the protection of economic, social and cultural rights. The Protocol, the adoption of which coincides with the 60th anniversary of the Universal Declaration on Human Rights, will finally allow victims a venue to complain about violations of their economic, social, and cultural rights protected by the Covenant.

Similar to other existing international complaint mechanisms, individuals must exhaust domestic remedies prior to bringing their case before the Committee on Economic, Social & Cultural Rights, the chief governing body for the Covenant. The availability of a complaint mechanism is not only a symbolic development but one that carries very practical consequences. In fact, by adopting the Protocol, the General Assembly has declared that rights protected by the Covenant are finally considered to have the same legal status as other human rights, such as civil and political rights.

The Protocol is an optional instrument, which means that states are not mandated to become parties to it. Because it is a treaty, states that wish to become legally obligated to its terms can either sign or ratify it. Thereafter, victims who are nationals of the signatory states can bring individual complaints before the Committee so long as the procedural requirements have been met (for example, the requirement pertaining to the exhaustion of domestic remedies).

S. and Marper v. U.K. (E.C.H.R. Dec. 4, 2008)

Click here for document (approximately 40 pages)

The European Court of Human Rights (Court) held in the case of S. and Marper v. the United Kingdom that the U.K. had violated the Applicants’ rights under Article 8 of the European Convention on Human Rights (right to respect for private and family life) by retaining the Applicant’s fingerprints, cellular samples and DNA after the ending of criminal investigations against them. According to the facts of the case, both applicants are British nationals who at one point were subject to a criminal investigation: “Mr S.…was arrested on 19 January 2001 at the age of eleven and charged with attempted robbery. His fingerprints and DNA samples were taken. He was acquitted on 14 June 2001…Mr Michael Marper…was arrested on 13 March 2001 and charged with harassment of his partner. His fingerprints and DNA samples were taken...the case was formally discontinued.” After the criminal proceedings against them ended, the Applicants demanded that their DNA samples and fingerprints be destroyed. However, the police authorities refused such request based on a law that permitted the retention of such evidence for an unlimited time. What followed were numerous judicial actions by the Applicants asking review of the refusal. Before applying to the Court, the Applicants lodged a final appeal with the House of Lords, which dismissed the appeal.

The Applicants claimed a violation of Article 8, which provides that “1.Everyone has the right to respect for his private...life...[and] 2.There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society...for the prevention of disorder or crime.” The issue before the Court was whether the retention of the Applicants' fingerprints, DNA and cellular samples constituted an interference with their private life. According to the Applicants, there was a violation of their Article 8 right because said samples “were crucially linked to their individual identity and concerned a type of personal information that they were entitled to keep within their control.” Furthermore, Applicant Mr. S, who was a child when arrested, highlighted the “social stigma and psychological implications provoked by such retention in the case of children.” Finally, the characteristic of the information retained, which contained not only the “full genetic information” about an individual, but also of his relatives, amounted to “an even greater degree of interference with Article 8 rights.”

The Court agreed with the Applicants holding that “the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard.” The consequence of the retention practice led to a “disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.”

The Applicants asked the Court to award damages for the injury suffered but the Court held that the “finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants.” However, the Court did order that the U.K. to pay the Applicants’ trial-related costs and expenses in the amount of €42,000 plus interest.

Omar Khadr v. Bush (D.C. Cir. Nov. 24, 2008)

Click here for document (approximately 19 pages)

The United States District Court for the District of Columbia denied Omar Khadar's motion “to grant a writ of habeas corpus, permanently enjoin his trial by military commission, and order his outright release or, alternatively, order him released from adult detention and placed into an appropriate rehabilitation and reintegration program for juvenile detainees.”

Omar Khadr, a Canadian citizen, was captured in Afghanistan and taken into U.S. custody after a fight that claimed the life of [who/how many] and injured several U.S.-led coalition members. Khadr, who was at that time (2002) only fifteen years old, was then transferred to Guantanamo Bay, where he has been imprisoned ever since. Although he was only sixteen upon his arrival to Guantanamo, Khadr was placed in adult detention and “at no time during his detention has...been segregated from adult detainees or afforded special treatment because he was a juvenile when initially detained.” In 2004, Khadr was designated as an enemy combatant and charged with war crimes and referred for trial before a military commission.

In his petition Khadr argued that 1) his trial before the military commission is unlawful, because the Military Commissions Act (MCA), that authorizes such proceedings, “does not confer personal jurisdiction to try juveniles,” 2) his designation and “detention as 'enemy combatant' is unlawful because under U.S. law and the law of war a juvenile cannot be a 'member,' 'affiliate,' or 'associate' of an armed group such as al-Qaeda,” and 3) even if he is lawfully detained, his detention as a juvenile “requires that he be placed in a rehabilitation and reintegration program appropriate for former child soldiers.”

Referring to the case of Schlesinger v. Councilmen, 420 U.S. 738 (1975), the Court held that under the Councilmen Abstention principle, which states that “federal courts normally will not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted,” Khadr has not exhausted all available remedies. Furthermore, as to Khadr's request to be transferred to a rehabilitation program, the Court held that this “challenge does not implicate the core of the writ...but instead relates solely to Khadr's 'detention, transfer, treatment, trial, or conditions of confinement,' and hence is barred by 2241(e)(2)” of the MCA. Interestingly, in Boumediene v. Bush, 128 S. Ct. 2229 (2008), the Supreme Court held section 2241(e) of the MCA unconstitutional, but according to the Court here, whether section 2241(e)(2) was also invalidated remains unclear.

Sarei et al. v. Rio Tinto, PLC & Rio Tinto Limited (9th Cir. Dec. 16, 2008)

Click here for document (approximately 44 pages)

The U.S. Court of Appeals for the 9th Circuit, relying on a footnote in the Supreme Court decision Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), held that the lower court had failed to determine whether the exhaustion requirement had to be imposed on the plaintiffs bringing suit under the Alien Tort Statute (ATS) and remanded the case for further proceedings.

The Plaintiffs, a group of “current and former residents of Bougainville, Papua New Guinea (PNG), brought suit under the...(ATS), claiming that various war crimes, crimes against humanity, racial discrimination, and environmental torts arose out of Rio Tinto's mining operations on Bougainville.” As a result of its actions, so the Plaintiffs allege, Rio Tinto “is liable not only for its actions that led to civil war, but also vicariously for those actions of the PNG government as Rio Tinto's agent or partner.” The Defendant, Rio Tinto, “is part of an international mining group that operates over sixty mines and processing plants in forty countries, including the United States.”

The question presented was whether the ATS imposes the requirement that plaintiffs exhaust local remedies before they can bring their action in a foreign court. While the 9th Circuit Court of Appeals declared that “the ATS does not itself require an alien to exhaust local remedies before invoking the jurisdiction of our courts, the Supreme Court signaled in Sosa...that a prudential or judicially-imposed exhaustion requirement for ATS claims 'would certainly [be considered] in an appropriate case.'” According to the Court of Appeals, this was the “appropriate case” to litigate the issue.

After a lengthy discussion regarding the exhaustion principle in international law, and a finding that the nexus between the alleged crimes, the Plaintiffs and the venue was weak, the Court concluded that the lower court had erred in not assessing the applicability of the exhaustion doctrine.

Judges Bea and Callahan concurred in the decision but reasoned that the ATS not only “incorporates causes of action recognized by the law of nations,” but also incorporates “the whole of the law of nations: the rights it grants and the limitations it places on those rights,” in other words, the principle of exhaustion. Consequently, the lower court still had to determine whether the Plaintiffs in fact have exhausted local remedies, but according to the concurring judges, total incorporation of international law through the ATS ensured that future “decision whether an ATS plaintiff may reach American courts without exhausting his legal remedies” will not be left to the discretion of a single judge.

Judges Ikuta and Kleinfeld dissented, arguing that the case should be dismissed “on the ground that we exceed the authority granted by Congress and the limits imposed by the Constitution's separation of powers by applying the ATS to a dispute not involving United States territory or citizens.”

Prosecutor v. Radovan Karadzic – Decision on the Accused’s Second Motion for Inspection and Disclosure: Immunity Issue (I.C.T.Y. Dec. 17, 2008)

Click here for document (approximately 11 pages)

The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed on the Territory of Former Yugoslavia (ICTY or Tribunal) issued a decision on Radovan Karadzic 's second motion requesting the inspection and disclosure of certain documents relating to an alleged immunity agreement between Karadzic and Richard Holbrooke.

Karadzic requested the disclosure of several documents pursuant to Rules 66(B) (requiring the disclosure of certain material information) and 68 (requiring the disclosure of evidence that may suggest innocence or mitigate guilt). More specifically, Rule 66(B) allows the defense to review any documents in the possession of the prosecution that are “(i) material to the preparation of the defence, or (ii) are intended for use by the Prosecutor as evidence at trial, or (iii) were obtained from or belonged to the accused.” Rule 68, on the other hand, “places an independent obligation upon the Prosecution to disclose to the Defence, 'as soon as practicable...any material which in the actual knowledge of the Prosecutor may suggest the innocence or mitigate the guilt of the accused or affect the credibility of the Prosecution's evidence.'”

The Trial Chamber held that the documents requested, including the alleged immunity agreement, “could shed light on the behavior of the Accused after the fact, and, if so, would be items which may be taken into consideration in the determination of any eventual sentence.” For this reason the Chamber ordered the Prosecution to disclose to Karadzic any written agreement and related notes in its possession that were made during the meeting between Karadzic and Holbrooke. However, the Chamber also noted that the existence of an immunity agreement would be irrelevant in the determination of guilt. According to the Trial Chamber, “it [is] well established that any immunity agreement in respect of an accused indicted for genocide, war crimes and/or crimes against humanity before an international tribunal would be invalid under international law.”

Prosecutor v. Bikindi (I.C.T.R. Dec. 2, 2008)

Click here for document (approximately 128 pages)

The International Criminal Tribunal for Rwanda (Tribunal or ICTR) convicted Simon Bikindi, a once famous singer and composer, and the leader of a ballet troupe, of direct and public incitement to commit genocide. Bikindi was charged with six counts pursuant to Articles 2 and 3 of the ICTR Statute (Genocide and Crimes Against Humanity), including 1) conspiracy to commit genocide, 2) genocide or in the alternative, 3) complicity in genocide, 4) direct and public incitement to commit genocide, 5) murder and 6) persecution as crimes against humanity. He was sentenced to fifteen years imprisonment for, inter alia, encouraging individuals to exterminate Tutsi over a public-address system mounted to a vehicle.

According to the Prosecutor, Bikindi collaborated with government officials to incite and promote hatred and violence against Tutsi and encouraged genocide through songs and speeches. Bikindi was also charged with the training and supervising of military personnel and with personally participating in attacks against the Tutsi population. Bikindi was arrested in the Netherlands in the summer of 2001, transferred to the Tribunal on March 27, 2002; however, his trial did not commence until September 18, 2006.

Bikindi was acquitted of conspiracy to commit genocide, genocide, complicity in genocide, and murder and persecution as crimes against humanity. He was found guilty for direct and public incitement to commit genocide. In computing the prison sentence, the Tribunal gave Bikindi credit for time spent in prison. Interestingly, the Trial Chamber noted that “Bikindi’s stature in Rwandan society as a well-known and popular artist” coupled with “the influence he derived from his status made it likely that others would follow his exhortations.” According to the Chamber, these additional factors amounted to aggravated circumstances in the case.

U.S. v. Slough et al. (Blackwater Indictment) (D.C. Cir. Dec. 4, 2008)

Click here for document (approximately 6 pages)

The United States Department of Justice (DOJ) indicted five Blackwater Worldwide (Blackwater) employees on manslaughter charges for the killing and wounding of 34 unarmed Iraqi civilians on September 16, 2007. According to the 35-count indictment, the defendants “unlawfully and intentionally, upon sudden quarrel and heat of passion did commit voluntary manslaughter” (counts 1-14), “attempt[ed] to commit manslaughter” (counts 15-34), and “knowingly used and discharged firearms…during and in relation to a crime of violence” (count 35).

According to the DOJ press statement, if the defendants are found guilty, they “face a potential maximum sentence of ten years imprisonment for each count of manslaughter, seven years of imprisonment for each count of attempt to commit manslaughter, and a mandatory minimum imprisonment of 30 years for the firearms count.”

This is very important legal development because the indictment is the “first prosecution under the Military Extraterritorial Jurisdiction Act (MEJA) to be filed against non-Defense Department private contractors, which was not possible prior to the 2004 amendments to MEJA that specifically expanded the read of MEJA to non-Defense Department contractors who provide services ‘in support of the mission of the Department of Defense overseas.’”

Blackwater is a U.S. contractor hired by the Department of State to provide personal security services in Iraq. Click here for a public statement issued by the company on the indictment.

U.S. Securities and Exchange Commission v. Siemens Aktiengesellschaft (D.C. Cir. Dec. 12, 2008)

Click here for complaint (approximately 38 pages)

Siemens Aktiengesellschaft (Siemens AG), a self-proclaimed “global powerhouse in electronics and electrical engineering,” pleaded guilty to charges of violating the Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-1 (FCPA), “by engaging in a widespread and systematic practice of paying bribes to foreign government officials to obtain business.” According to the U.S. Securities and Exchange Commission complaint, “Siemens created elaborate payment schemes to conceal the nature of its corrupt payments, and the Company’s inadequate internal controls allowed the illicit conduct to flourish.”

The complaint gives a detailed overview of the alleged misconduct, including a list of several specific instances where money was paid to numerous government officials and “totaling approximately $1.4 billion.” According to the complaint, “Siemens earned over $1.1 billion in profits on these fourteen categories of transactions that comprised 332 individual projects or individual sales.”

Although the SEC alleged that Siemens violated the FCPA prior to 2001, it could not hold the company liable under U.S. law because only entities listed on the New York Stock Exchange fall under the SEC’s regulatory scheme. Similarly, Siemens could not be held accountable in Germany, where it is incorporated, for crimes committed prior to 1999, because Germany had not yet adopted the Organization of Economic Cooperation and Development Anti-Bribery Convention, a FCPA equivalent. However, once Germany adopted the convention and Siemens was listed on the NYSE, both countries commenced legal proceedings against Siemens.

According to press reports, the fines against Siemens are unprecedented and even more troubling, “Siemens and its employees are still facing anti-corruption cases in Argentina, Austria, Bangladesh, China, Germany, Greece, Hungary, Indonesia, Israel, Italy, Malaysia, Nigeria, Norway, Poland, Russia, Switzerland and Vietnam.”