• United Nations Security Council Resolution 1888 (September 30, 2009)

• United Nations Security Council Resolution 1889 (October 5, 2009)

• United Nations Security Council Resolution 1890 (October 8, 2009)

• United Nations Security Council Resolution 1891 (October 13, 2009)

• United Nations Security Council Resolution 1892 (October 13, 2009)

• Independent Fact-Finding Mission on the Conflict in Georgia (September 2009)

European Court of Justice

• Intercontainer Interfrigo (ICF) v. Balkenende Oosthuizen BV & Mic Operations BV (October 6, 2009)

Court of Bosnia and Herzegovina

• In the Case of Milorad Trbi?, Case Number:X-KR-07/386 (October 16, 2009)

United Nations Security Council Resolution 1888 (September 30, 2009)

Click here for document (approximately 7 pages)

The United Nations Security Council has unanimously adopted a resolution that provides measures and mechanisms to address violence against women and children during armed conflict. In particular, the Council “decid[ed] to include specific provisions . . . for the protection of women and children from rape and other sexual violence in the mandates of United Nations peacekeeping operations.” The Security Council also expressed the intent to identify “women’s protection advisers” (WPAs), to be chosen from gender and human rights experts, and has asked the Secretary General to assess “the need for, and the number and roles of WPAs” in United Nations peacekeeping operations.

The Council asked the Secretary General “to appoint a Special Representative to provide coherent and strategic leadership, to work effectively to strengthen existing United Nations coordination mechanisms, and to engage in advocacy efforts . . . to address . . . sexual violence in armed conflict.” In addition, the Council requested that the Secretary General “identify and take the appropriate measures to deploy rapidly a team of experts to situations of particular concern with respect to sexual violence in armed conflict.” Furthermore, the Council affirmed its aim to consider acts of sexual violence against children and women “when adopting or renewing targeting sanctions in situations of armed conflict.” Consequently, the Security Council requested that the Secretary General “present specific proposals on ways to ensure monitoring and reporting in a more effective and efficient way within the existing United Nations system on the protection of women and children from rape and other sexual violence in armed conflict and post-conflict situations.”

United Nations Security Council Resolution 1889 (October 5, 2009)

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The United Nations Security Council has unanimously adopted a resolution requesting “Member States, international and regional organisations to take further measures to improve women’s participation during all stages of peace processes, particularly in conflict resolution, post-conflict planning and peacebuilding, including by enhancing their engagement in political and economic decision-making at early stages of recovery processes.” The Council reaffirmed the importance of resolution 1325 (2000) on “women and peace and security,” requesting the Secretary General to provide periodic reports on its implementation.

The Council also condemned sexual violence against women during armed conflict, calling upon all parties to conflicts to stop such violations and set up mechanisms for the prosecution and investigations of these actions. Furthermore, the Council urged Member States and the international community to develop plans and strategies to address women’s needs in post-conflict situations. Finally, the Council asked the “Secretary General to report to the Security Council within 12 months on addressing women’s participation and inclusion in peacebuilding and planning in the aftermath of conflict.”

United Nations Security Council Resolution 1890 (October 8, 2009)

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The United Nations Security Council has decided to extend the mandate of the International Security Assistance Force in Afghanistan for a period of twelve months, having “determine[ed] that the situation in Afghanistan still constitutes to pose a threat to international peace and security.” The Council noted its disappointment with the increase in violence and condemned terrorist attacks targeting civilians and causing casualties.

The Council urged “all Afghan parties and groups to engage constructively in peaceful political dialogue within the framework of the Afghan Constitution and to work together with international donors for the socio-economic development.” The Council also stressed the importance of cooperation in the whole region as an important factor to achieve stability in Afghanistan.

United Nations Security Council Resolution 1891 (October 13, 2009)

Click here for document (approximately 3 pages)

The United Nations Security Council, having “determine[ed] that situation in Sudan still constitutes a threat to international peace and security,” has “decid[ed] to extend until October 2010 the mandate of the Panel of Experts with the task to supervise sanctions and embargo on those who interfere with the peace in the region.” The Council also “request[ed] the Panel of Experts to provide . . . a midterm briefing on its work and . . . an interim report to the Committee established pursuant to paragraph 3(a) of resolution 1591 (2005) . . . and a final report . . . with its findings and recommendations.”

The Council also urged the Panel of Experts “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.” Furthermore, the Council requested “all States, relevant United Nations bodies, the African Union and other interested parties, to cooperate fully with the Committee and the Panel of Experts.”

United Nations Security Council Resolution 1892 (October 13, 2009)

Click here for document (approximately 6 pages)

The United Nations Security Council has adopted a resolution “extend[ing] the mandate of MINUSTAH [United Nations Stabilization Mission in Haiti] until 15 October 2010, with the intention of further renewal.” The Council has also decided to adjust the configuration of the forces on the ground to meet the new requirements. As a result, “MINUSTAH will consist of a military component of up to 6,940 troops of all ranks and of a police component of up to 2,211 police.”

The Council urged that “MINUSTAH continue its support of the HNP [Haitian National Police] as deemed necessary to ensure security in Haiti, and encourages MINUSTAH and the Government of Haiti to continue to undertake coordinated deterrent actions to further decrease the level of crime and violence.” Finally the Council requested the Secretary General to submit reports every six months to the Security Council assessing the implementation of MINUSTAH, including an evaluation of threats to security in Haiti.

Independent Fact-Finding Mission on the Conflict in Georgia (September 2009)

Click here for document (approximately 500 pages)

The Independent Fact-Finding Mission on the Conflict in Georgia, established by a decision of the Council of the European Union on December 2, 2008, has issued its final report concluding that the 2008 conflict between Russia and Georgia was in violation of international humanitarian and human rights law. The report, which is meant to “[i]nvestigate the origins and the course of the conflict in Georgia,” gives a brief but telling overview of the internal and international elements that led to the shelling of the South Ossetian capital Tskhinvali by Georgian armed forces during the night of August 7 –8, 2008, and concludes that all parties involved had failed to fulfill their international obligations in the aftermath of the attack.

The report analyzes military actions by Russia and Georgia separately. It begins by considering whether Georgia’s initial shelling of Tskhinvali was in accordance with international law. The report concludes that the attack was not justifiable under international law, even if Georgia’s claim of Russia’s imminent attack was correct, because an “armed response would have to be both necessary and proportional.” The report then explains that since the initial attack against South Ossetian forces was illegal under international law, the subsequent counterattack against Georgian forces “did conform to international law in terms of legitimate self-defence.” But, applying the same principle of necessity and proportionality, the report adds that “any operations of South Ossetian forces outside of the purpose of repelling the Georgian armed attack, in particular acts perpetrated against ethnic Georgians inside and outside South Ossetia, must be considered as having violated International Humanitarian Law and in many cases also Human Rights Law.” The report indicates that the lack of “an ongoing armed attack by Russia before the start of the Georgian operation” meant that Georgia’s initial attack —using force against Russian peacekeeping forces on Georgian territory—was not justified.

In considering Russia’s military actions, the report uses a different analysis. It notes that Russia’s “immediate reaction in order to defend Russian peacekeepers” was legal so long as it was proportionate. However, with respect to Russia’s subsequent “military campaign deeper into Georgia,” the report concludes “that much of the Russian military action went far beyond the reasonable limits of defence.”

It follows . . . that insofar as such extended Russian military action reaching out into Georgia was conducted in violation of international law, Georgian military forces were acting in legitimate self-defence under Article 51 of the UN Charter. In a matter of a very few days, the pattern of legitimate and illegitimate military action had thus turned around between the two main actors Georgia and Russia.

The remainder of the report deals with the questions of whether the use of force by Russia was justified as a “humanitarian intervention” and whether Russia was obligated to use military action to protect its citizens living in South Ossetia. (The report concludes that neither justification could be recognized.)

The report also briefly discusses allegations of genocide and ethnic cleansing. With respect to claims of genocide, the report states that “allegations of genocide committed by the Georgian side in the context of the August 2008 conflict and its aftermath are neither founded in law nor substantiated by factual evidence.” As to the allegations of ethnic cleansing by South Ossetian forces or irregular armed groups, the report concludes that “several elements suggest the conclusion that ethnic cleansing was indeed practised against ethnic Georgians in South Ossetia both during and after the August 2008 conflict.”

For more on the Mission’s report, please refer to the above document.

European Court of Justice

Intercontainer Interfrigo (ICF) v. Balkenende Oosthuizen BV & Mic Operations BV (October 6, 2009)

Click here for decision (approximately xx pages); click here for press release (approximately xx pages)

The European Court of Justice (ECJ) has for the first time interpreted the European Convention on the Law Applicable to Contractual Obligations (Convention) in a case referred to it by the Supreme Court of the Netherlands, where the case is currently pending.

The dispute arose out of a project for a train connection for freight traffic between the Netherlands and Germany, pursuant to which a Belgian company (ICF) entered into a charter party with two Netherlands companies (together MIC). According to the oral agreement among the parties, ICF would “make train wagons available to MIC and would ensure their transport via the rail network. MIC . . . was responsible for all operational aspects of the transport of the goods concerned.” MIC failed to pay one of the invoices sent by ICF. ICF, after failing to settle the dispute, sued MIC almost three years later. The suit was time barred under the law of Netherlands but not under Belgian law. Neither party disputed that the Convention was applicable, but the parties disagreed as to which country’s law applied with respect to the statute of limitations.

In its analysis, the ECJ first noted that the purpose of the Convention is to “establish uniform rules concerning the law applicable to contractual obligations, no matter where the judgment is delivered.” Thus, Article 4 of the Convention, which sets out rules in situations where parties have failed to choose the law applicable, must be interpreted harmoniously with the Convention’s general purpose.

Article 4 provides “connecting criteria” that are applied to ascertain the country with which the contract is “most closely connected.” However,

the flexibility of that general principle is modified by the “presumptions” in Article 4(2) to (4) of the Convention. In particular, Article 4(2) sets out a presumption of a general nature, which consists in applying as the connecting criterion the place of residence of the party to the contract who effects the performance characteristic of that contract, whereas Article 4(3) and (4) establish special connecting criteria as regards contracts the subject matter of which is a right in immoveable property and contracts of carriage respectively. Article 4(5) of the Convention contains an exception clause which makes it possible to disregard those presumptions.

In a carriage of goods contract, therefore, the law of the country in which the carrier has his principal place of business—if the place of loading or the place of discharge or the principal place of business of the consignor is situated in that country—applies. As a result, the Court held that “the law of the country in which the carrier has his principal place of business applies to a charter-party only when the main purpose of the contract is not merely to make available a means of transport, but the actual carriage of goods.”

The Court concluded that the presumptions in Article 4 should be the first step in analyzing the applicable law. However, in cases where the surrounding circumstances demonstrate that the contract as a whole is more closely connected with a country other than that determined by applying the presumptions, the court may disregard the presumptions in favor of the law of the country with which the contract is most closely connected.

Court of Bosnia and Herzegovina

In the Case of Milorad Trbi?, Case Number X-KR-07/386 (October 16, 2009)

Click here for press release (approximately 2 pages); click here for original indictment (approximately 30 pages)

The Court of Bosnia and Herzegovina, a court of the State of Bosnia and Herzegovina (BiH), has found Milorad Trbi?, a captain in the army of the Republika Srpska, guilty of genocide for his participation in a joint criminal enterprise between July 12 and November 30, 1995, with the common purpose and plan to capture, detain, summarily execute, and bury thousands of Bosniak (Muslim) males from the Srebrenica enclave. The Court sentenced Trbi? for his participation in the crimes to thirty years’ imprisonment.

According to the Court’s press release (as of this writing, the final judgment has not been made public), Trbi? was “a significant contributor to the common plan to capture, detain, summarily execute and bury all able bodied Bonsniak males from Srebrenica enclave . . . with genocide intent.” In addition, he was found guilty of “select[ing] detention sites” and the “exhumation and reburial of the victims of mass executions.” The press release further notes that “[t]he Court, when considering mitigating circumstances, found that Milorad Trbi? did not take part in the overall planning of these crimes and the sentence reflects his level of responsibility in the overall crime.”

According to the indictment, Trbi? was initially indicted by the International Criminal Tribunal for the former Yugoslavia (ICTY), but, pursuant to Rule 11 bis of Rules of Evidence and Procedure (Referral of the Indictment to Another Court), he was transferred to the BiH authorities in 2007. He was charged with the forcible transfer of Bosniak population from Srebrenica (Count 1) and summary execution and burial of able-bodied Bosniak men from Srebrenica (Count 2). Trbi? was also charged with having “the aim to destroy in part, the Bosniak people . . . in co-operation with others, and as a knowing participant in a joint criminal enterprise . . . planned, perpetrated, instigated, ordered and aided and abetted the perpetration of the criminal acts described in the Indictment.” As a result, “he is individually criminally responsible for his own acts and omissions.”

The Court of BiH, which includes international judges and prosecutors, was established on July 3, 2002 by the Parliament of BiH with the Law on the Court of BiH and promulgated on November 12, 2000 by the High Representative for BiH. According to the Court’s own web site, the establishment of the Court “was necessary to provide for judicial protection in the matters that under the BiH Constitution fall under the jurisdiction of the Court of BiH, such as fight against terrorism, war crimes, human trafficking, organized and economic crimes.”