• Hague Conference on Private International Law - Information Note on Haiti Earthquake and Intercountry Adoption of Children (Jan. 20, 2010)

• The Parliamentary Assembly of the Council of Europe – Resolution 1708 on Solving Property Issues of Refugees and Displaced Persons (Jan. 28, 2010) and Recommendation 1901 (Jan. 28, 2010)

• Meeting on International Cooperation on Migratory Sharks under the Convention on Migratory Species - Agreement on Migratory Sharks (Feb. 10-12, 2010)

International Criminal Court

• Prosecutor v. Omar Hassan Ahmad Al Bashir, Judgment on the appeal of the Prosecutor against the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir" (Feb. 3, 2010)

• Prosecutor v. Bahar Idriss Abu Garda, Decision on the Confirmation of Charges (Feb. 8, 2010)

Supreme Court of Canada

• Canada (Prime Minister) v. Khadr (Jan. 29, 2010)

Court of Appeal of England and Wales

• Binyam Mohamed v. Sec'y of State for Foreign and Commonwealth Affairs (Feb. 10, 2010)

• The United Nations-backed Convention Banning Cluster Munitions Will Enter Into Force on August 1, 2010

Hague Conference on Private International Law - Information Note: Haiti Earthquake and Intercountry Adoption of Children (Jan. 20, 2010)

Click here for document (approximately 2 pages)

The Secretariat of the Hague Conference on Private International Law has issued an Information Note dealing with the adoption of children in the aftermath of the Haiti earthquake. The Note is meant to inform and caution all potential parties, including governments, international organizations, and the public, about the possible irreparable harm that can be caused if adoption procedures are not followed and the children's best interest is not protected.

Most notably, the Note warns that even if Haiti is not party to the 1993 Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, which provides for the protection of children and their families against unlawful and premature adoptions to third countries, most of the receiving states are bound by the standards and provisions of that Convention.

The Note stresses that the children's best interest must remain the primary focus. To this end, if possible, children should be reunited with their families. In cases where an adoption has already been cleared by a court in Haiti, entities involved can expedite certain administrative procedures. However, even in these situations, the "identity of the child [must] be verified before departure."

Reports of illegal adoptions began surfacing in the aftermath of the earthquake that left more than 200,000 dead. In early February, ten members of a U.S. missionary group were arrested when they allegedly attempted to kidnap thirty-three Haitian children. While a court in Haiti freed eight of the ten Americans, two remain in custody for additional questioning.

The Parliamentary Assembly of the Council of Europe – Resolution 1708 on Solving Property Issues of Refugees and Displaced Persons (Jan. 28, 2010) and Recommendation 1901 (Jan. 28, 2010)

Click here for resolution (approximately 2 pages); click here for recommendation (approximately 1 page)

The Council of Europe Parliamentary Assembly adopted Resolution 1708 on the widespread challenges of solving property issues of refugees and displaced persons. The Resolution, which contains a number of recommendations for Council of Europe member states, stresses that dispossession of property is a human rights violation, the perpetuation of which leads to instability and impedes peace-building; and the "optimal response" to a displacement measure is restitution, which not only provides a remedy to the individual but also ensures the respect for rule of law.

According to the Resolution, there are currently about 2.5 million refugees and internally displaced persons in Council of Europe member states, a reality that requires specific countermeasures by governments. To this end, the Resolution calls upon all member states to halt the arbitrary displacement and dispossession, and remedy instances of such wrongdoing. Specifically, member states are invited to ensure that property is returned to refugees and internally displaced persons "without regard to pending negotiations concerning the resolution of armed conflicts or the status of particular territory." Furthermore, where restitution is not available, governments must ensure that individuals are properly compensated, even if property rights in question were not formally recognized but were treated as de facto valid. The Resolution specifically invites members to honor the occupancy and tenancy rights of the former communist regimes as such ownership is protected under both Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol to the Convention. Finally, the process of reclaiming property rights should be "rapid, accessible and effective."

Meeting on International Cooperation on Migratory Sharks under the Convention on Migratory Species - Agreement on Migratory Sharks (revised draft) (Feb. 10-12, 2010)

Click here for revised draft of the agreement (approximately 15 pages); click here for press release (approximately 3 pages); click here for Convention (approximately 7 pages)

At a recent meeting in Manila, Philippines, under the auspices of the Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention), government representatives agreed on the text of a Memorandum of Understanding on the conservation of migratory sharks. Pursuant to the MoU, all seven shark species will be included in the Bonn Convention appendices, a necessary step to ensure that they will be protected from illegal fishing and trade. The purpose of the agreement is "the restoration and long term viability of populations of migratory sharks," and the signing of the agreement demonstrates a wide-spread readiness to conserve the endangered species.

Sharks have been overexploited "as both target and non target catch." According to a report by the International Union for Conservation of Nature, a global environmental network comprised of public and private interests, "14 shark species are ‘critically endangered' and face extremely high risk of extinction in the wild."

The Bonn Convention, which "works for the conservation of a wide array of endangered migratory animals worldwide through negotiation and implementation of agreements and species action plans," currently has 113 member countries.

International Criminal Court

Prosecutor v. Omar Hassan Ahmad Al Bashir, Judgment on the appeal of the Prosecutor against the "Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir" (Feb. 3, 2010)

Click here for document (approximately 18 pages)

The International Criminal Court (ICC) Appeals Chamber reversed the Pre-Trial Chamber's decision not to issue a warrant of arrest against Omar Hassan Ahmad Al Bashir, the president of Sudan, for the crime of genocide. The Appeals Chamber held that the Pre-Trial Chamber had applied the wrong standard of proof and, in remanding the case, directed the Pre-Trial Chamber to determine whether under the correct standard of proof a warrant of arrest for the crime of genocide should be issued.

In June 2008, the ICC Prosecutor filed an application requesting the issuance of a warrant for the arrest of Al Bashir under Article 58 of the Rome Statute, alleging that Al Bashir was criminally responsible for committing genocide, crimes against humanity, and war crimes against members of the Fur, Masalit, and Zaghawa groups in Darfur from March 2003 to July 2008. In March 2009, the Pre-Trial Chamber decided to issue a warrant for Al Bashir's arrest for war crimes and crimes against humanity, but declined to issue a warrant for genocide. The Prosecutor then filed an application for leave to appeal the decision, and the Pre-Trial Chamber granted it on the issue of "[w]hether the correct standard of proof in the context of Article 58 requires that the only reasonable conclusion to be drawn from the evidence is the existence of reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court."

The Appeals Chamber held that the Pre-Trial Chamber's standard of proof— "reasonable grounds to believe that the GoS [Government of Sudan] acted with dolus specialis/specific intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups"—was erroneous. According to the Appeals Chamber, "the evidentiary threshold of ‘reasonable grounds to believe' for the issuance of a warrant of arrest must be distinguished from the threshold required for the confirmation of charges (‘substantial grounds to believe', article 61 (7) of the Statute) and the threshold for a conviction (‘beyond reasonable doubt', article 66 (3) of the Statute)."

For more information on this decision, see Saira Mohamed, The ICC Appeals Chamber Decision on the Warrant of Arrest in Prosecutor v. Bashir, ASIL INSIGHTS, Feb. 17, 2010, at http://www.asil.org/insights100217.cfm.

Prosecutor v. Bahar Idriss Abu Garda, Decision on the Confirmation of Charges (Feb. 8, 2010)

Click here for document (approximately 103 pages)

The Pre-Trial Chamber I of the International Criminal Court (ICC) has declined to confirm the charges against Bahar Idriss Abu Garda. According to the Chamber, the evidence presented by the prosecution was insufficient to establish substantial grounds to believe that Abu Garda could be held responsible for the commission of the crimes with which he was charged.

Abu Garda was charged with three war crimes, including violence to life; pillaging; and intentionally directing attacks against personnel, installations, material, units, and vehicles involved in a peacekeeping mission, allegedly committed during an attack against the African Union Mission in Sudan, a peace-keeping mission stationed in North Darfur.

The prosecution can either request leave to appeal the Chamber's decision to decline confirmation of the charges, or request the confirmation of charges supported by additional evidence.

Supreme Court of Canada

Canada (Prime Minister) v. Khadr (Jan. 29, 2010)

Click here for document (approximately 30 pages)

The Supreme Court of Canada reversed an order by the Federal Court of Appeal ordering Canada to request Omar Ahmed Khadr's repatriation. While the Court found that Khadr's rights under Canada's Charter of Rights and Freedoms were violated, it held that separation of powers prohibited the courts from intervening in foreign relation matters.

Khadr, a Canadian citizen captured in Afghanistan in 2002 for allegedly throwing a grenade that killed a U.S. soldier, has been held in Guantanamo Bay and is awaiting trial on war crime charges. Since his capture, Khadr has expressed his wish to return to Canada; however, Canada has refused to repatriate him. Alleging that complicity and assistance by Canadian intelligence service have led and extended his continued mistreatment and detention, Khadr unsuccessfully argued that Canada had to remedy its abuse by repatriating him.

Notably, the Court recognized that the executive power "is not exempt from constitutional scrutiny." However, judicial authority to review executive acts is narrow in scope. The Court had to decide whether the Prime Minister's decision to refuse to repatriate Khadr was in accordance with "the record and legal principle." The Court concluded that in the instant case, the lack of Canadian authority over Khadr, the ongoing diplomatic negotiations between the U.S. and Canada, and the need to respect the powers of the executive required noninterference on the part of the judiciary.

Court of Appeal of England and Wales

Binyam Mohamed v. Sec'y of State for Foreign and Commonwealth Affairs (Feb. 10, 2010)

Click here for document (approximately 85 pages)

The Court of Appeal of England and Wales issued a decision rejecting the appeal by the Secretary of State for Foreign and Commonwealth Affairs (Foreign Secretary) to redact several short paragraphs of a lower court's judgment evidencing knowledge and complicity by U.K. authorities in the torture by U.S. authorities of a British resident held at Guantanamo Bay. The Foreign Secretary, as well as U.S. authorities, have strongly urged the British courts from making the paragraphs public, warning that "publication would lead to a real risk of serious harm to the national security of the UK." The Court found these appeals unpersuasive, instead emphasizing that most of the information in question had been made available by U.S. courts.

Binyam, originally from Ethiopia, fled to the U.K. in 1994 to seek political asylum. In 2001, he traveled from the U.K. to Pakistan and then to Afghanistan. The U.S. disputes Binyam's claim that he left London for Pakistan and Afghanistan to get away from drugs, instead claiming that he received firearms and explosives training. In April 2002, on his way back to the U.K. through Pakistan, Binyam was arrested and was allegedly tortured for two years. After the alleged appearance of a British agent, the torture stopped. However, shortly thereafter, Binyam alleges that he was taken to Morocco, where the alleged torture continued. In 2004, Binyam was transferred to Guantanamo. He was released from Guantanamo in February 2009. During his detention in Guantanamo, Binyam continued to plead his innocence, alleging that any admission of guilt was obtained through torture. To prove the torture charges, his legal team requested that confidential information held by the British authorities proving torture be released. However, the British government continuously rejected the allegations that such documents existed or that it was complicit in torture.

The Foreign Secretary argued that disclosure would destroy the so-called control principle, pursuant to which "[t]he working relationships between the intelligence services of different countries (in this case, the United Kingdom (UK) and the United States of America (USA)) are subject to an understanding of confidentiality." The control principle presupposes that the "confidentiality is vested in the country of the services which provides the information: it never vests in the country which receives the information." In other words, if the U.K. were to publish the text, the U.S. might decide to review and limit its intelligence sharing arrangements with the U.K., and this in turn could harm the U.K.'s fight against terrorism.

The Court disagreed with this assessment and ruled against the appeal:

[T]he arguments in favour of publication of the redacted paragraphs are compelling. Inevitably if they contained genuinely secret material, the disclosure of which would of itself damage the national interest, my conclusion might be different. However dealing with this appeal as a matter of practical reality rather than abstract legal theory, unless the control principle is to be treated as if it were absolute, it is hard to conceive of a clearer case for its disapplication than a judgment in which its application would partially conceal the full reasons why the court concluded that those for whom the executive in this country is ultimately responsible were involved in or facilitated wrongdoing in the context of the abhorrent practice of torture.

The Convention Banning Cluster Munitions Will Enter Into Force on August 1, 2010

Click here for UN press release (approximately1 page); click here for Convention (approximately 18 pages)

According to United Nations press release, the Convention on Cluster Munitions will enter into force on August 1, 2010, after the 30th country submitted its instrument of ratification. Burkina Faso and Moldova both ratified the Convention, a move Secretary General Ban Ki-moon says "demonstrates the world's collective revulsion at the impact of these terrible weapons."

For additional background information, see Priya Pillai, Adoption of the Convention on Cluster Munitions, ASIL INSIGHTS, Oct. 1, 2008, at http://www.asil.org/insights081001.cfm.