| | | International Court of Justice
Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening) (Feb. 3, 2012)
Click here for document (approximately 54 pages)
The International Court of Justice ("ICJ") has issued a landmark decision in Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), holding, twelve votes to three, that Italy violated its obligation to respect Germany's immunity under international law by allowing civil claims to be brought against Germany based on violations of international humanitarian law committed by the German Reich between 1943 and 1945. The Court also found that Italy's measures of constraint against German state property located in Italy, along with Italy's judicial declaration that Greek judgments against Germany are enforceable in Italy, violated Italy's obligation to respect Germany's immunity under international law. The Court ordered Italy to ensure that decisions issued by Italian courts, and decision issued by other judicial authorities, not infringe on Germany's immunity.
In 2008, Germany filed an application instituting proceedings against Italy, alleging 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 the war. Neither party disputed the Court's jurisdiction under the European Convention for the Peaceful Settlement of Disputes, which provides that contracting parties should submit their international legal disputes to the ICJ. The parties also agreed that states "are generally entitled to immunity in respect of acta jure imperii," i.e., activities of a governmental or public nature carried out by states. They disagreed, however, how narrowly or broadly state immunity should be interpreted under customary international law. Thus, while Germany argued that acts committed by armed forces during WWII, irrespective of their legality, are covered by state immunity under customary international law, Italy argued that state immunity does not extend to serious violations of international law. The Court first explained the scope of its decision: The Court considers that it is not called upon in the present proceedings to resolve the question whether there is in customary international law a "tort exception" to State immunity applicable to acta jure imperii in general. The issue before the Court is confined to acts committed on the territory of the forum State by the armed forces of a foreign State, and other organs of State working in co-operation with those armed forces, in the course of conducting an armed conflict. Applying various interpretative tools under Article 38(1)(b) of the ICJ Statute to determine the customary international law of state immunity, the Court then concluded that "customary international law continues to require that a State be accorded immunity in proceedings for torts allegedly committed on the territory of another State by its armed forces and other organs of State in the course of conducting an armed conflict." Significantly, the Court added in paragraph 91: [U]nder customary international law as it presently stands, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law or the international law of armed conflict. In reaching that conclusion, the Court must emphasize that it is addressing only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State is not in issue in the present case. Italy also argued that Germany violated rules that have obtained jus cogens status in international law (jus cogens rules are principles of international law that are universal and non-derogable). And since jus cogens rules "always prevail over any inconsistent rule of international law, whether contained in a treaty or in customary international law," state immunity (a customary international law rule) could not prevail. The Court disagreed, concluding that the customary international law on state immunity is of "procedural character" and only determines "whether or not the courts of one State may exercise jurisdiction in respect of another State," without implicating the issue of whether particular conduct is lawful or unlawful. Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization Upon a Complaint Filed Against the International Fund for Agricultural Development, Advisory Opinion (Feb. 1, 2012)
Click here for document (approximately 40 pages)
The International Court of Justice ("ICJ") has delivered an advisory opinion in Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization Upon a Complaint Filed Against the International Fund for Agricultural Development. The Court ruled that it had jurisdiction to issue the advisory opinion and that the Administrative Tribunal ("Tribunal") of the International Labour Organization ("ILO") had jurisdiction to hear an employment claim against the International Fund for Agricultural Development ("IFAD"), a special UN agency, by an employee working for an organization hosted by the IFAD. The request for an advisory opinion was made by IFAD and concerns the validity of a judgment issued in 2010 by the Tribunal and relating to an employment contract between Ms. Saez García and the IFAD. Allegedly, Ms. Garcia accepted a two-year fixed-term contract with IFAD to serve as a Programme Officer in the Global Mechanism--an organization created under the auspices of the United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification and hosted by the IFAD. Ms. Garcia's contract was extended twice; however, in 2005, she was informed that her contract would not be renewed because her position was eliminated. She challenged that decision by filing an appeal with the Joint Appeals Board of the IFAD, which recommended her reinstatement. However, that recommendation was rejected by IFAD's President. She then filed a complaint with the ILO Tribunal, which set aside the President's decision to not reinstate Ms. Garcia and ordered that costs and damages be paid to Ms. Garcia. In April 2010, the Executive Board of the IFAD requested an advisory opinion from the ICJ regarding the validity of the Tribunal's judgment. The Court first observed that its mandate to issue an advisory opinion is rooted in the UN Charter, the Statute of the Court, and Article XII of the Annex to the Statute of the ILO Tribunal. The Court also relied on the Relationship Agreement between the UN and IFAD, which addressed the issue of jurisdiction: "[T]he Court concludes that, in terms of the relevant provisions of the Charter, the Statute of the Court and the authorization given under the Relationship Agreement, the Fund [IFAD] has the power to submit for an advisory opinion the question of the validity of the decision given by the ILOAT [ILO Administrative Tribunal] in its Judgment No. 2867 and that the Court has jurisdiction to consider the request for an advisory opinion." The real issue, according to the Court, was not whether it had jurisdiction to review the request to issue an advisory opinion, but the scope of that jurisdiction. The Court concluded that its power to review a judgment of the ILO Tribunal was limited to two situations: 1) when the Tribunal wrongly confirmed its own jurisdiction, or 2) when there is fundamental fault in the procedure followed by the Tribunal. Relying on the Statute of the ILO Tribunal, which was authorized to hear IFAD employee-related complaints, the Court had to determine whether Ms. Garcia was in fact employed by IFAD. The Court concluded that she was an IFAD employee because, inter alia, she was subject to IFAD staff regulations and rules. Thus, she could bring her employment claim before the Tribunal, and her claims were "within the scope of allegations of non-observance of her terms of appointment and of the provisions of the staff regulations and rules of the Fund, as prescribed by . . . the Statute of the Tribunal." Finally, having also found that the ILO Administrative Tribunal "was entirely justified in confirming its jurisdiction," and failing to find "any fundamental fault in the procedure committed by the Tribunal," the Court concluded that the Tribunal's decision was valid. International Criminal Court Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the
Rome Statute--Case 1 (William Samoei Ruto, Henry Kiprono Kosgey, and Joshua Arap Sang) and Case 2 (Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali) (Jan. 23, 2012) Click here for Case 1 (approximately 173 pages); click here for Case 2 (approximately 193 pages); click here for summary (approximately 3 pages) The Pre-Trial Chamber II of the International Criminal Court ("ICC") has confirmed charges against four of the six suspects in two separate cases (Case 1 and Case 2) stemming from the post-election violence in Kenya. The Chamber concluded that there are "substantial grounds to believe" that the crimes charged by the prosecutor were committed in Kenya and that the four suspects were responsible for them.
The situation in Kenya has occupied the Chamber's attention for months. At the end of 2011, the Chamber issued two decisions on Kenya's challenges to the admissibility of the cases before the ICC. The Chamber rejected Kenya's arguments that the ICC should relinquish its jurisdiction over crimes in Kenya to Kenyan domestic courts under the principle of complementarity. This decision was recently upheld by the Appeals Chamber.
In Case 1, Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, the Chamber considered allegations that suspects committed crimes against humanity--including murder, deportation or forcible transfer, and persecution--in Kenya between December 2007 until the end of January 2008. Ruto and Kosgey were charged as indirect co-perpetrators, while Sang was charged as having contributed to the crimes against humanity.
Reviewing the evidence presented, the Chamber found that the prosecutor had met the evidentiary threshold under the Rome Statute to confirm charges against Ruto and Sang, but not against Kosgey. The Chamber concluded that substantial grounds existed that Ruto and Sang committed crimes against individuals belonging to a particular political party and that these crimes resulted in the death of hundreds and the displacement of thousands of civilians. With respect to Kosgey, the Chamber ruled that the evidence presented was insufficient to demonstrate his alleged role in the perpetration of the crimes.
In Case 2, Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, the Chamber considered evidence on crimes against humanity, including murder, deportation or forcible transfer, rape and other forms of sexual violence, other inhumane acts, and persecution. Muthaura and Kenyatta were charged as indirect co-perpetrators, while Ali was charged as having contributed to the alleged crimes.
The Chamber was satisfied that the prosecutor's evidence substantiated that both Muthaura and Kenyatta are criminally responsible for the alleged crimes. Relying on the evidence presented, the Chamber concluded that there were "substantial grounds to believe" that suspects attacked civilians considered to be supporters of a specific political party in Kenya. Like Case 1, these attacks resulted in a large number of killings, displacement of thousands of people, rape, severe physical injuries, and mental suffering. With respect to Ali, however, the Chamber found the evidence presented insufficient to confirm the charges.
The four suspects against whom charges were confirmed will be committed to trial.
In the Court's supplemental press release, the Chamber expressed its "utmost desire that the decisions issued by this Chamber today, bring peace to the people of the Republic of Kenya and prevent any sort of hostility. The decisions are the result of intensive and committed judicial work of the Chamber, conducted impartially, independently and conscientiously in the interests and in the service of justice." Special Tribunal for Lebanon Decision to Hold Trial In Absentia (Feb. 1, 2012) Click here for document (approximately 43 pages) The Trial Chamber of the Special Tribunal for Lebanon has ruled that it will commence the trial against four men accused of the 2005 assassination of former Lebanese Prime Minister Rafiq Hariri in their absence. According to the press release, the STL "is the only international Tribunal that can prosecute accused in their absence" to ensure that justice is not unduly delayed. In its decision to try the accused in absentia, the Trial Chamber reviewed efforts by the Lebanese government to inform the accused of the charges against them and/or to serve them with the indictment, along with the Tribunal's own decision to lift the confidentiality of the original indictment to ensure that the case was widely publicized. According to the Chamber, these measures to inform the accused of the pending charges against them sufficiently satisfy the requirements to commence the trial in absentia. In June 2011, a partially redacted version of the indictment was made public in order to broadcast the case against the four suspects. The indictment alleges a complex and well-planned operation commencing sometime in November 2004 and ending on February 14, 2011. The prosecution asserts that it can link the four suspects, through documentary evidence and call data records, not only to specific locations within Lebanon, but also to a larger cell of operatives. All four indictees are charged--under Articles 2 and 3 of the Statute for the Special Tribunal for Lebanon, Lebanese Criminal Code, and Lebanese Law of 1958--with conspiracy aimed at committing a terrorist act. Two of the indictees are charged with committing a terrorist act by means of an explosive device, international homicide of Hariri and twenty-one others, and attempted international homicide of 231 others. Two others, who were in charge of distributing a false confessional video to major TV networks in order to divert the investigation, were also charged with being accomplices to the crimes listed above U.S. Court of Appeals for the Second Circuit Chevron Litigation: Naranjo et al. v. Mendoza et al. (Jan. 26, 2012) Click here for document (approximately 30 pages) The U.S. Court of Appeals for the Second Circuit has ruled that the district court erred in finding that a putative judgment-debtor (Chevron) had a cause of action under the New York Uniform Foreign Country Money-Judgments Recognition Act ("Recognition Act") to challenge a foreign judgment before a party actually sought to enforce that judgment. According to the Court of Appeals, Chevron "can challenge a foreign judgment's validity under the Recognition Act only defensively, in response to an attempted enforcement." Since the Ecuadorian plaintiffs have not attempted to enforce their multi-billion judgment in New York, Chevron could not benefit from a global injunction limiting the enforcement of the award. This decision is the latest chapter in the ongoing litigation between Chevron and the Ecuadorian plaintiffs, who won an eighteen billion dollar judgment in Ecuadorian courts against Chevron for pollution caused by Texaco (Chevron inherited the case after taking over Texaco) to the Lago Agrio region of the Ecuadorian Amazon. Texaco had settled the case before Chevron took over, but the plaintiffs commenced a new suit in Ecuador and New York. In anticipation that plaintiffs will enforce their award in the United States, Chevron brought the present action in New York, seeking a global anti-enforcement injunction against the plaintiffs in order to prevent them from enforcing the "allegedly fraudulent" judgment, recently affirmed by courts in Ecuador. Chevron successfully argued before the New York district court that the Ecuadorian award was "fundamentally tainted by fraud." "Specifically, the court concluded that Chevron was likely to show that the Ecuadorian court system is incapable of producing a judgment that New York courts can respect, under the Recognition Act, as 'the Ecuadorian judicial system no longer acts impartially, with integrity and firmness in applying the law and administering justice.'" The district court also found that there was "'ample evidence of fraud in the Ecuadorian proceedings,'" and "that such evidence was sufficiently serious to warrant a preliminary injunction." The Ecuadorian plaintiffs appealed. The Court of Appeals ruled in favor of the plaintiffs, concluding that "[w]hatever the merits of Chevron's complaints about the Ecuadorian courts, . . . the procedural device it has chosen to present those claims is simply unavailable: The Recognition Act nowhere authorizes a court to declare a foreign judgment unenforceable on the preemptive suit of a putative judgment-debtor."
Chevron has also appealed Ecuador's lower court decision in Ecuador, arguing that the lower court's decision violated Ecuador's Constitution. In addition to the Ecuadorian and U.S. proceedings, Chevron has commenced arbitral proceedings in The Hague under the US-Ecuador Bilateral Investment Treaty. In February 2011, the arbitration tribunal ordered that Ecuador suspend enforcement of the lower court's judgment against Chevron until further notice. |
