• Parliamentary Assembly of the Council of Europe – Resolution on Piracy (Apr. 28, 2010)

Special Tribunal for Lebanon

• Order by the President Assigning the Matter to Pre-Trial Judge (Apr. 15, 2010)

Appeal Court in The Hague (“Gerechtshof”)

• Mothers of Srebrenica v. The Netherlands & United Nations (Mar. 30, 2010)

United States Court of Appeals for the Second Circuit

• Brzak v. United Nations (Mar. 2, 2010)

U.S. Supreme Court

• Graham v. Florida (May 17, 2010)

United States Court of Appeals for the Ninth Circuit

• Khatib v. County of Orange (May 3, 2010)

• U.S. President Obama Signs Daniel Pearl Freedom of the Press Act (May 17, 2010)

Parliamentary Assembly of the Council of Europe – Resolution on Piracy (Apr. 28, 2010)

Click here for document (approximately 2 pages)

The Parliamentary Assembly of the Council of Europe has adopted a resolution on practical and legal aspects surrounding the widespread occurrence of piracy off the coast of Somalia.

The resolution spells out some of the issues commonly noted in connection with efforts to combat piracy. For example, the resolution warns that the release of suspected pirates without formally charging them with a crime “is a matter of concern” because it breeds impunity and discourages the rule of law. The resolution also stresses the need to understand all the potential legal problems raised by the very nature of the crime—“the majority of pirate attacks take place in a state’s territorial waters: in such cases, according to international law, the sole responsibility for apprehension and prosecution lies with the coastal state, as the principle of universal jurisdiction does not apply, with the exception of Somalia by virtue of [UN Security Council] Resolution 1851.”

The resolution appeals to member states to respect human rights when dealing with suspected pirates, especially when they are transferred to another country’s authorities.

Special Tribunal for Lebanon

Order by the President Assigning the Matter to Pre-Trial Judge (Apr. 15, 2010)

Click here for document (approximately 18 pages)

The President of the Special Tribunal for Lebanon, Judge Antonio Cassese, has issued an order assigning a case dealing with disclosure of confidential evidence and court documents to the pre-trial judge of the tribunal.

The petitioner, Jamil El Sayed, asked that the he be allowed access to certain confidential evidence kept by the tribunal and dealing with the initial charges against him for his alleged participation in the killing of former Lebanese Prime Minister Rafiq Hariri. According to El Sayed, his illegal detention of almost four years, first by the Lebanese authorities and then briefly by the tribunal itself, was based on false and libelous statements, punishable under Lebanese law. At this time, he wishes to commence a libel suit in Lebanon; however, to proceed with this civil claim, he alleges that information only available to the tribunal has to be disclosed. El Sayed further argues that the continued inability to obtain the evidence is in violation of the right to access to justice protected by the European Convention on Human Rights and the International Covenant on Civil and Political Rights.

President Cassese agreed, holding that the right to access to justice is fundamental and must be protected. He ordered the case assigned to the pre-trial judge to determine whether the tribunal had jurisdiction over the issue and El Sayed’s standing; and if so, whether the information in question could be disclosed.

Appeal Court in The Hague (“Gerechtshof”)

Mothers of Srebrenica v. The Netherlands & United Nations (Mar. 30, 2010)

Click here for document (approximately 10 pages)

The Appeals Court in The Hague, one of the five appeals courts in the Netherlands, issued a landmark decision in a case against the United Nations brought by an organization representing surviving relatives of individuals killed in the Srebrenica genocide (Mothers of Srebrenica). The Court, relying on the United Nations Charter and the Convention on Privileges and Immunities of the United Nations, affirmed the lower court’s dismissal for lack of jurisdiction.

The claimants alleged that the 1995 Srebrenica genocide—the infamous massacre of more than 8,000 Bosniak men and boys at the hands of the Republika Srpska Army led by General Ratko Mladic—could have been prevented had the UN and the Netherlands acted in accordance with their “legal obligations” and “promises.” Before the massacre occurred, the UN had declared Srebrenica a “safe area,” protected by 400 armed Dutch peacekeepers as part of the UN Protection Force (UNPROFOR).

According to the Court, “the UN has been granted the most far-reaching immunity, in the sense that the UN cannot be brought before any national court of law in the countries that are party to the Convention.” Thus, the claimants’ suit could not go forward.

The claimants also argued that their right to be guaranteed access to a court of law—a right promulgated in numerous international legal instruments, including the European Convention on Human Rights and the International Covenant on Civil and Political Rights—surpassed UN’s immunity. After a lengthy discussion on the importance of protecting this basic right, the Court concluded that the claimants had other venues of redress, including filing suits against the actual perpetrators of the genocide and the Netherlands, which “cannot invoke immunity from prosecution before a Netherlands court of law, so that a Netherlands court will have to give a substantive assessment of the claim against the State anyway.”

United States Court of Appeals for the Second Circuit

Brzak v. United Nations (Mar. 2, 2010)

Click here for document (approximately 11 pages)

In Brzak v. United Nations, the U.S. Court of Appeal for the Second Circuit was asked to review a lower court’s dismissal of a case against the United Nations and its staff. The Second Circuit affirmed the dismissal for lack of subject-matter jurisdiction, holding that the UN and its officials “enjoy[ed] absolute and functional immunity.”

The plaintiffs, two former UN staff, sued the UN and several of its officials, alleging sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 for alleged misconduct that occurred at a 2003 meeting in Geneva. The lower court, applying the Convention on Privileges and Immunities of the United Nations (CPIUN), ruled that the UN and its officials enjoyed absolute immunity, and, unless this immunity was waived, the court lacked jurisdiction. Since the UN never waived its immunity, the judge concluded, the suit had to be dismissed. The plaintiffs appealed the dismissal to the Second Circuit.

The question before the Second Circuit was whether the CPIUN was self-executing, i.e., whether the protections found therein had domestic legal effect. Reviewing the language of the CPIUN, the ratification history, and the statements made by the executive branch, the Second Circuit held that it had “little difficulty concluding that the CPIUN is self-executing.” It went on to affirm the lower court’s holding.

U.S. Supreme Court

Graham v. Florida (May 17, 2010)

Click here for document (approximately 84 pages)

In Graham v. Florida, the U.S. Supreme Court held that the imposition of a life in prison sentence without the possibility of parole on juvenile offenders who have not committed murder was unconstitutional.

The petitioner originally pleaded guilty at the age of sixteen in Florida to armed burglary. Pursuant to a plea agreement, petitioner was put on probation, with no formal adjudication of guilt. A few months later, the petitioner was arrested and charged with other crimes thus violating the terms of his probation. This time, the trial court sentenced him to life in prison without the possibility of release for the earlier crime and the additional charges. After the state appellate court affirmed the lower court’s sentence, the petitioner appealed to the U.S. Supreme Court alleging violation of the Eighth Amendment’s cruel and unusual punishment clause.

Relying on its own precedent, the Court held that to “determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to ‘the evolving standards of decency that mark the progress of a maturing society.’” To ascertain the changing “standards of decency,” the Court reviewed current state practice in the United States, global practice, and international instruments.

However, the Court also acknowledged that while the “community consensus” played an important role, it was the Court’s own “exercise of independent judgment” that mattered. Here, the Court took note of scientific studies that supported the assumption that the maturity level of juveniles is different than that of adults: “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.” It also noted the different types of crimes: “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.”

Notably, the Court acknowledged that while other countries have not outlawed life in prison without parole sentences for juvenile offenders, data clearly showed that the United States was the only country where this type of sentence could be imposed on “juvenile nonhomicide offenders.” The Court concluded that “[t]oday we continue that longstanding practice in noting the global consensus against the sentencing practice in question.”

Justice Thomas, with whom Justice Scalia and Justice Alito joined (Justice Alito joined in Parts I and III), dissented. He criticized the majority’s reasoning as overbroad, “intrud[ing] upon areas that the Constitution reserves to other (state and federal) organs of government.” The dissenting justices particularly disliked the majority’s reliance on “community consensus”: “the Framers did not provide for the constitutionality of a particular type of punishment to turn on a ‘snapshot of American public opinion’ taken at the moment a case is decided.”

United States Court of Appeals for the Ninth Circuit

Khatib v. County of Orange (May 3, 2010)

Click here for document (approximately 9 pages)

Recently, the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of a claim by a Muslim woman alleging that her rights were violated when she was ordered to remove her “hijab” (headscarf) while she was held in a California Superior Court holding cell awaiting her probation hearing. The Court concluded that the plaintiff did not meet the statutory requirements of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which protects “the religious exercise of institutionalized persons.”

The main disagreement between the majority and the dissent (Chief Judge Alex Kozinski vehemently dissented) centered on the interpretation of the RLUIPA. The majority held that the holding cell was not within the statute’s enumerated types of institutions; Chief Judge Kozinski, meanwhile, declared that “[t]he statute here clearly covers courthouse holding facilities like the one where [plaintiff] was confined and forced to uncover her head in the presence of men who were not her husband . . . . I can see no plausible reason why a facility which has a permanent staff of 20 deputies and handles thousands of inmates” should be exempted from RLUIPA.

U.S. President Obama Signs Daniel Pearl Freedom of the Press Act (May 17, 2010)

Click here for Act (approximately 2 pages)

President Obama has signed the Daniel Pearl Freedom of the Press Act meant to promote press freedom around the world. According to NY Times, the Act is “a bipartisan measure inspired by the murder in Pakistan of Daniel Pearl, the Wall Street Journal reporter, shortly after the attacks of Sept. 11, 2001.” The Act amends the Foreign Assistance Act of 1961 to include in the Annual Country Reports on Human Rights Practices information on freedom of the press in foreign countries.