• Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse

• Revised UNCITRAL Arbitration Rules

U.S. District Court for the District of Arizona

• United States v. Arizona, Order (July 28, 2010)

African Commission on Human and Peoples’ Rights

• Sudan Human Rights Organisation & The Sudan, Communication No. 279/03; Centre for Housing Rights and Evictions- The Sudan, Communication No. 296/05 (May 2009)

International Criminal Tribunal for the former Yugoslavia

• Prosecutor v. Haradinaj et al. (July 19, 2010)

International Criminal Court

• Prosecutor v. Thomas Lubanga Dyilo (July 23, 2010)

International Court of Justice

• Jurisdictional Immunities (Germany v. Italy), Order Summary (July 6, 2010)

• Convention on Cluster Munitions Enters Into Force (August 1, 2010)

Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse

Click here for document (approximately 17 pages)

The Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse came into force on July 1, 2010, after five Council of Europe Member States (Albania, Denmark, Greece, the Netherlands, and San Marino) ratified it.

The Convention was adopted in 2007 with the purpose of creating a “comprehensive international instrument focusing on the preventive, protective and criminal law aspects of the fight against all forms of sexual exploitation and sexual abuse of children” (Preamble). To this end, the Convention aims at 1) preventing and combating sexual exploitation and sexual abuse of children; 2) protecting the rights of child victims of exploitation and abuse; and 3) promoting national and international co-operation (Article 1). To enforce the far-reaching provisions, the Convention sets up a specific monitoring mechanism—the Committee of the Parties (Articles 39-41).

The Committee of the Parties is composed of representatives of the parties to the Convention. The monitoring authority includes the “collection, analysis and exchange of information, experience and good practice between the States” in order to “improve their capacity to prevent and combat sexual exploitation and sexual abuse of children” (Article 41). Article 41 also provides the Committee with the authority to “express an opinion regarding the application of th[e] Convention and facilitate the exchange of information on significant legal, policy or technological developments.”

According to a Council of Europe press release, the Convention is the “first” instrument of its kind “to establish the various forms of sexual abuse of children as criminal offences, including such abuse committed in the home or the family. The convention fills the gaps in European legislation and harmonises the legal framework to fight against this plague.”

Revised United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules (June 2010)

Click here for document (approximately 22 pages)

The United Nations Commission on International Trade Law (UNCITRAL) has adopted the revised UNCITRAL Arbitration Rules, amending the original UNCITRAL Arbitration Rules, which have been in place since 1976. The Rules, a set of procedural rules that govern the settlement of disputes between various commercial entities, are, according to UNCITRAL, “recognized as of one of the most successful international instruments of a contractual nature in the field of arbitration.”

Some of the changes include: a list of required documents that must accompany both the “notice to arbitrate” (Article 3(3)(a)-(g)) and the “response” thereto (Article 4(2)(a)-(f)); provision on multiple parties and joinder of third parties (Article 17(5)); more comprehensive rules regarding the appointment and replacement of arbitrators (Articles 7-15); a new provision dealing with the waiver of liability of arbitrators and other appointed individuals (Article 16); and more comprehensive rules regarding interim measures (Article 26).

One modernizing revision is found in Article 2, which allows that documents between the parties, including the notice to arbitrate, may be “transmitted by any means of communication that provides or allows for a record of its transmission.” Moreover, Article 2(1) provides that in certain circumstances “[d]elivery by electronic means such as facsimile or email” is acceptable. This language demonstrates the drafters’ intent to respond to the current trend promoting e-communication.

U.S. District Court for the District of Arizona

United States v. Arizona, Order (July 28, 2010)

Click here for document (approximately 36 pages)

U.S. District Court Judge Susan R. Bolton has partially granted a motion by the U.S. government asking for preliminary injunction to enjoin Arizona from enforcing a recently enacted Arizona law authorizing certain anti-immigration measures (S.B. 1070). The law has led to heated debates regarding the role of the U.S. government vis-à-vis the states in controlling illegal immigration.

To obtain a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest” (quoting Winter v. Natural. Res. Def. Council, Inc., 129 S. Ct. 365, 374(2008)). Thus, the Court had to determine whether the U.S. government was likely to succeed in proving that the law as a whole was unconstitutional, or whether the U.S. would likely succeed only with respect to specific sections of the law.

The Court, reviewing the language of the law, and specifically its severability clause, ruled in favor of the latter (severability clauses provide that if certain parts of a law are invalid, that invalidity will not affect the remainder of the law, i.e., the invalid section will be “severed”). According to the Court, “whether potentially unconstitutional provisions of S.B. 1070 may be severed from the remainder of the enactment” will depend on the “legislative intent.” And since the law “contains a severability provision, Arizona courts generally attempt to give effect to the severability clause.”

The U.S. government filed a complaint against the State of Arizona on July 6, 2010, challenging the constitutionality of the law. The government’s main argument is that the authority “to regulate immigration is vested exclusively with the federal government” and that Arizona’s anti-immigration law was thus “preempted by federal law.” Besides the constitutionality issue, in its memorandum in support of the injunction, the government reaffirmed its view that the federal immigration policy of the United States reflects a balance of national law enforcement, foreign relations, and international humanitarian concerns. The memorandum also emphasized that the enforcement of S.B. 1070 would hinder U.S. interests in international trade, security, tourism, and, more importantly, the advancement and protection of human rights. Furthermore, it would gravely undermine U.S. humanitarian concerns by allowing Arizona authorities to arrest and detain aliens seeking asylum or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

African Commission on Human and Peoples’ Rights

Sudan Human Rights Organisation & The Sudan, Communication No. 279/03; Centre for Housing Rights and Evictions & The Sudan, Communication No. 296/05 (May 2009)

Click here for document (approximately 38 pages)

In anticipation of the upcoming referenda on Sudan’s future—the referenda are part of the 2005 Comprehensive Peace Agreement (CPA) ending the long-running civil war in Sudan—the United Nations and several other international observers have expressed the “need to accelerate efforts to resolve key issues, including citizenship and border demarcation” ahead of time. The war-torn country, whose president has been indicated by the International Criminal Court, has been in a constant state of disorder for several decades. Rampant human rights violations, violence against civilians, and millions of internally displaced persons (IDPs) are the status quo.

A little publicized decision by the African Commission on Human and Peoples’ Rights is, however, a positive reminder that victims of human rights atrocities are not forgotten and that their voices continue to be heard.

In May 2009, the African Commission found that Sudan had violated several Articles of the African Charter, a human rights instrument meant to protect and guarantee basic human rights on the African continent, and recommended that Sudan “take all necessary and urgent measures to ensure protection of victims of human rights violations in the Darfur Region.” To this end, Sudan should

a. conduct effective official investigations into the abuses, committed by members of military forces . . .

b. undertake major reforms of its legislative and judicial framework in order to handle cases of serious and massive human rights violations;

c. take steps to prosecute those responsible for the human rights violations, including murder, rape, arson and destruction of property;

d. take measures to ensure that the victims of human rights abuses are given effective remedies, including restitution and compensation;

e. rehabilitate economic and social infrastructure, such as education, health, water, and agricultural services, in the Darfur provinces in order to provide conditions for return in safety and dignity for the IDPs and Refugees;

f. establish a National Reconciliation Forum to address the long-term sources of conflict, equitable allocation of national resources to the various provinces, including affirmative action for Darfur, resolve issues of land, grazing and water rights, including destocking of livestock;

g. desist from adopting amnesty laws for perpetrators of human rights abuses; and

h. consolidate and finalise pending Peace Agreements.

International Criminal Tribunal for the former Yugoslavia

Prosecutor v. Haradinaj et al. (July 19, 2010)

Click here for document (approximately 148 pages)

The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) has quashed the Trial Chamber’s acquittal of Ramush Haradinaj, Idriz Balaj, and Lahi Brahimaj, three former Kosovo Liberation Army (KLA) members, and ordered a partial retrial. This is the first order of retrial in the history of the ICTY.

All three defendants were indicted in 2005 and charged as participants in a joint criminal enterprise in relation to the commission of crimes against humanity and violations of the laws or customs of war for their alleged participation in the persecution and abduction of pro-Serb civilians in Kosovo.

In 2008, the Trial Chamber acquitted two of the defendants, Haradinaj and Balaj, of all charges. However, the Trial Chamber found Brahimaj guilty of cruel treatment and torture of two persons and sentenced him to six years imprisonment. Both the prosecution and Brahimaj filed an appeal against the judgment. The prosecution argued that the Trial Chamber erred when it rejected the prosecutions’ request for additional time to secure the testimony of two crucial witnesses. Brahimaj, on the other hand, appealed his conviction and length of sentence.

The Appeals Chamber reviewed the prosecutions’ grounds of appeal and concluded that the Trial Chamber in fact “seriously erred in failing to take adequate measures to secure the testimony” of key witnesses. While the Appeals Chamber acknowledged that decisions regarding testimony of witnesses are within the Trial Chamber’s discretion, because “serious witness intimidation . . . formed the context of the Trial,” the Trial Chamber’s “error undermined the fairness of the proceedings as guaranteed by the Statute and Rules and resulted in a miscarriage of justice.” The Appeals Chamber also criticized the Trial Chamber for placing “undue emphasis” on the Trial Chamber’s deadlines for presenting evidence, regardless of the need to ensure the testimony of two key witnesses. This “misplaced priority,” the Appeals Chamber continued, “demonstrates that the Trial Chamber failed to appreciate the gravity of the threat that witness intimidation posed to the trial’s integrity.”

The Appeals Chamber partially granted one of Brahimaj’s grounds of appeal regarding burden of proof, but ultimately held that the error neither impacted his conviction nor sentencing.

International Criminal Court

Prosecutor v. Thomas Lubanga Dyilo (July 23, 2010)

Click here for document (approximately 7 pages)

The Appeals Chamber of the International Criminal Court (ICC) has granted the prosecutor’s request to suspend the Trial Chamber’s order to release Thomas Lubanga Dyilo. This means that Lubanga will continue to be detained.

On July 8, 2010, the Trial Chamber ordered that the criminal proceedings against Lubanga be suspended because the prosecution, by refusing to comply with an earlier order to disclose the identity of an individual who helped it in assembling its witnesses, created a situation where “the fair trial of the accused is no longer possible, and justice cannot be done.” According to the Trial Chamber, “the judges . . . lost control of a significant aspect of the trial proceedings as provided under the Rome Statute.” On July 14, the Trial judges ordered that Lubanga be released.

The Appeals Chamber ruled that releasing Lubanga pending the final determination on the stay of the proceedings would jeopardize the future of the trial.

Lubanga, founder and leader of the Union des Patriotes Congolais (UPC), has been charged with war crimes under Article 25(3)(a), including the conscripting and enlisting of children under the age of fifteen into the military and using them in armed conflicts from September 2002 to August 2003.

International Court of Justice

Jurisdictional Immunities of the State (Germany v. Italy), Order Summary (July 6, 2010)

Click here for judgment summary (approximately 7 pages)

The International Court of Justice recently held that the counter-claim presented by Italy in this case does not meet the requirements under Article 80 of the Rules of the Court, which provides that it must come within the jurisdiction of the Court and directly relate to the subject matter of the original claim.

Germany alleged that Italy violated its obligations under international law by failing to respect the jurisdictional immunity of Germany regarding claims based on violations of international humanitarian law during World War II. Italy responded by submitting that Germany violated its obligation under international law by denying reparation to Italian victims of crimes against humanity committed by Nazi Germany during this war.

The Court held that the real cause of Italy’s counter-claim relates to facts that occurred before the European Convention for the Peaceful Settlement of Disputes entered into force as between Germany and Italy; thus, according to Article 27(a) of the Convention, the counter-claim does not fall within the jurisdiction of the Court.

The Court consequently held that it need not determine whether the counter-claim directly relates to the subject matter of the original claim, concluded that the counter-claim is inadmissible, and fixed time-limits for the two parties to file additional pleadings.

Convention on Cluster Munitions Enters Into Force (August 1, 2010)

Click here for Convention (approximately 18 pages); click here for press release (approximately 1 page)

The Convention on Cluster Munitions, prohibiting all use, stockpiling, production, and transfer of cluster munitions, has entered into force on August 1, 2010. Article 17 of the Convention provides that the “Convention shall enter into force on the first day of the sixth month after the month in which the thirtieth instrument of ratification, acceptance, approval or accession has been deposited.” So far, 107 countries have signed and thirty-seven have ratified the treaty.