European Court of Justice: Commission of the European Communities v. Ireland (May 30, 2006)

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The European Court of Justice (the “Court”) found that Ireland had violated the Treaty Establishing the European Community (the “EC Treaty”) by instituting proceedings against the United Kingdom (the “UK”) before an arbitral tribunal under the United Nations Convention on the Law of the Sea (the “Convention”).

The dispute initiated by Ireland under Annex VII of the Convention related to the operation of a MOX plant located in the UK on the coast of the Irish Sea, and to international movements of radioactive materials and the protection of the marine environment of the Irish Sea. The MOX plant is designed to recycle plutonium from spent nuclear fuel by mixing plutonium dioxide with depleted uranium dioxide, thereby producing MOX (mixed oxide fuel), which is used in nuclear power stations as an energy source. The Convention was approved on behalf of the European Community in 1998. The Community declaration relating to Community competence stipulates that the Community has exclusive competence with regard to the prevention of marine pollution only to the extend to which those provisions affect existing Community rules.

Before the Tribunal Ireland inter alia claimed that the UK failed to take the necessary steps to prevent, reduce, and control pollution of the marine environment. Subsequent to the European Commission’s (the “Commission”) decision to bring this case before the European Court of Justice, the tribunal suspended hearings in November 2004 in order to have the issue of jurisdiction and the Community law competence resolved.

The Commission claimed that Ireland violated Article 292 of the EC Treaty by bringing proceedings against the UK because it failed to respect the exclusive jurisdiction of the ECJ. Article 292 of the EC Treaty stipulates that member states shall not submit a dispute concerning the interpretation or application of the Community law to any method of settlement other than those provided for in the Treaty. The Commission further argued that issues raised in this case by Ireland fell within the jurisdiction of the Community, by virtue of it becoming a party to the Convention and owing to the Declaration of Community competence. Ireland submitted that the issues raised were not covered by Community competence, because no community law provision was affected by the provisions of the Convention.

The Court found that the provisions relied on by Ireland before the arbitral tribunal were rules that formed part of the Community legal order, and that the Court therefore had jurisdiction over the dispute. It also found this jurisdiction to be exclusive and therefore held that Ireland acted in violation of Articles 220 and 229 of the EC Treaty. The Court also found that by submitting instruments of Community law for interpretation and application by the arbitral tribunal amounted to a violation of Article 292 of the EC Treaty and also, in so far as the challenged measures fell within the scope of the Treaty Establishing The European Atomic Energy Community (the “EACE”), a violation of Article 193 of the EAEC.

Supreme Court of the United States: Hamdan v. Rumsfeld, Secretary of Defense et al. (June 29, 2006)

The decision is available on Lexis.

The Supreme Court (“the Court”) of the United States held that the military commission cannot be used to try Hamdan.

The petitioner Hamdan, a Yemeni citizen, was captured in Afghanistan in 2001 and transferred to prison in Guantanamo Bay, Cuba. About a year later, President Bush held that Hamdan was eligible for trial by military commission. Yet a year later, Hamdan was charged with conspiracy to “commit …offenses triable by military commission.” Hamdan challenged his detention and prosecution in habeas corpus and mandamus proceedings. The District Court granted habeas relief and the commission proceedings were suspended, because the President’s authority to establish military commissions extends only to the offenders or offenses triable by such a commission under the law of war. Because such law included the Third Geneva Convention, and because Hamdan was entitled to its full protections until adjudged under it, that he was not a prisoner of war, the District Court granted the relief sought. The DC Circuit reversed the judgment holding that the Geneva Convention was not judicially enforceable.

The Supreme Court reversed the judgment and remanded the case. Justice Stevens delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer joined. The majority opinion concludes that the military commission convened to try Hamdan violated in structure and procedure both the Uniform Code of Military Justice (“UCMJ”) and the Geneva Conventions.

Justices Stevens, Souter, Ginsburg, and Breyer also found that the offense with which Hamdan has been charged is not an “offense that by the law of war may be tried by military commissions.

The Government filed a motion to dismiss the writ of certiorari, basing its arguments on the Detainee Treatment Act of 2005 (the “DTA”). It argued that the Supreme Court lacked jurisdiction to review the Court of Appeals decision, because the DTA stripped the Court of its jurisdiction. The Court did not find the DTA to apply to this case and dismissed the Government’s motion.

In terms of the military commissions, the Court first noted that these are not expressly authorized by any congressional Act. Citing its decision in Quirin, the Court reiterated that Congress had, through Article of War 15, which is in substance identical to Art. 21 of the UCMJ, sanctioned the use of military commissions to try offenders and offenses against the law of war. That authorization, however, is in view of the Court not an unlimited one. Rather, the military commissions have to abide by the law of war. Also, neither the AUMF nor the DTA override this authorization regarding the established commission.

The majority opinion, finding that at a minimum Common Article 3 of the Geneva Conventions was applicable to the armed conflict during which Hamdan was captured, stipulated that “Common Article 3 obviously tolerates a great degree of flexibility in trying individuals captured during armed conflict; its requirements are general ones, crafted to accommodate a wide variety of legal systems. But requirements they are nonetheless. The commission that the President has convened to try Hamdan does not meet those requirements.”

Justices Scalia, Alito and Thomas dissented in their respective opinions.

Chief Justice Roberts took no part in the consideration or decision of this case as he sat on the bench that delivered the judgment under review.

International Court of Justice: Pulp Mills on the River Uruguay (Argentina v. Uruguay)
(Rejection of request for provisional measures) (July 13, 2006)

The document is available on the Court’s website.

The International Court of Justice (the “Court) rejected Argentina’s request for provisional measures. Argentina’s case against Uruguay relates to the authorization and construction of two pulp mills on the River Uruguay (the “River”) which borders both states. A treaty signed by the two countries in 1975, which provides for disputes under it to be resolved by the Court, establishes a joint regime for the use of the River.

Argentina requested the Court to issue provisional measures in order to have the authorization and construction of the mills suspended. Second Argentina sought to compel Uruguay to cooperate with it to protect the aquatic environment around the River. Argentina contended that Uruguay had acted unilaterally in granting authorization for the construction of the mills in violation of the treaty.

In terms of the construction of the mills, the Court noted that Argentina did not submit evidence proving that irreparable damage would be caused by the construction of the mills. Subsequent to Uruguay’s offer to have the facilities monitored jointly, the Court also rejected the second part of the request.

The decision was issued by 14 votes to 1.

Court of Justice of the European Communities: European Parliament v. Council of the European Union and European Parliament v. Commission of the European Communities (May 30, 2006)

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The European Court of Justice (the “Court”) annulled the Council decision relating to the conclusion of an agreement between the European Community and the United States of America on the processing and transfer of personal data, and also annulled the Commission decision on the adequate protection of those data.

After the terrorist attacks of September 11, 2001, the United States passed legislation according to which air carriers operating flights to, from or across United States territory have to provide the United States authorities with electronic access to the data contained in their reservation and departure control systems. Subsequent to negotiations of the Commission with the United States, the Commission adopted a decision according to which the United States Bureau of Customs and Border Protection (USCBP) ensured adequate data protection. The Council then adopted a decision approving the conclusion of an agreement between the European Community and the United States on the processing and transfer of data by air carriers to the USCBP. The agreement with the United States was signed on May 28, 2004.

The European Parliament, submitting that the decision of the Council was ultra vires, challenged that decision before the Court. The European Parliament also challenged the decision in which the Commission decided on the adequacy of protection, because there was no legal basis for the decision approving the conclusion of the agreement.

The Court held that the transfer of data related to public security, which was not covered by the Directive 95/46 EC. Processing of personal data in the course of an activity that falls outside the scope of Community law and processing operations concerning public security, defense, and State security are not covered by that Directive. The Court concluded that the Council decision concerned data processing relating to safeguarding public security and law-enforcement and therefore annulled the decision.

For the same reasons, the Court annulled the Council decision, which approved the conclusion of the agreement. The agreement provides that it can be terminated by either party through notification, which will take effect after a 90 day period.

European Court of Human Rights (ECHR) (Grand Chamber): Jalloh v. Germany (July 11, 2006)

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The Grand Chamber of the European Court of Human Rights held by ten votes to seven that there had been a violation of Article 3 (inhuman and degrading treatment) of the European Convention on Human Rights and by eleven votes to six that there had been a violation of Article 6 (right to a fair trial).

Abu Bakah Jalloh (the “applicant”), a national of Sierra Leone, was arrested in Germany when police officers observed him taking two tiny plastic bags out of his mouth in order to exchange them for money. During his arrest, the applicant swallowed another tiny plastic bag. Pursuant to the prosecutor’s order, the applicant was administered an emetic which would cause him to regurgitate the plastic bag. As the applicant refused to take the drug, it was forcibly induced through the nose. As a result, the applicant regurgitated the tiny bag, which contained 0.2182 grams of cocaine. He was convicted of drug trafficking and sentenced to a one year suspended prison sentence. On appeal, his sentence was diminished to six months. Otherwise his appeal against the conviction was unsuccessful.

The applicant submitted that the administration of the substances that induced the vomiting as well as the evidence used against him in the court proceedings violated his rights under the Convention, Articles 3, 6, and 8 in particular.

The Court reiterated that, although not prohibited, forcible medical interventions had to pass a strict scrutiny. The Court found that the German authorities had subjected the applicant to a grave interference with his physical and mental integrity against his will. They had forced him to regurgitate in order to retrieve evidence they could equally have obtained by less intrusive methods. Also, the measure had been “liable to arouse in the applicant feelings of fear, anguish and inferiority that were capable of humiliating and debasing him.” Moreover, the Court found that “the measure was implemented in a way which had caused the applicant both physical pain and mental suffering.” The applicant had therefore been subjected to inhuman and degrading treatment contrary to Article 3.

The Court then considered whether the applicant’s right to a fair trial had also been violated by the use of the evidence in trial obtained in violation of Article 3 of the Convention. According to the Court, the issue of whether admission of evidence obtained in violation of Article 3 but short of torture would also automatically result in a violation of Article 3 could be left open in this case, because “the public interest in securing the applicant’s conviction cannot be considered to have been of such weight as to warrant allowing that evidence to be used at the trial.” In that respect, the Court noted that the “measure targeted a street dealer selling drugs on a relatively small scale who was finally given a six months’ suspended prison sentence and probation.” In view of the above, the Court concluded that the applicant’s rights under Article 6 of the Convention were violated. Furthermore, the Court found that the principle against self-incrimination was also violated.

Supreme Court of the United States: Moises Sanchez-Llamas, Petitioner v. Oregon; Mario A. Bustillo, Petitioner V. Gene M. Johnson, Director, Virginia (June 28, 2006)

The document is available on Lexis.

The Supreme Court of the United States of America (the “Court”) held that the Vienna Convention on Consular Relations (the “Convention”) did not require the evidence obtained against the petitioners to be suppressed subsequent to the failure of the state officials to notify the consular authorities of the petitioners during interrogation.

Sanchez-Llamas, a Mexican national, was arrested after an exchange of gunfire with the police. During the interrogation, he made incriminating statements.

Bustillo, a Honduran national, was arrested and charged with murder. In both cases the police did not inform the consular authorities of the detention. Both petitioners were sentenced to prison.

The Court held that, even assuming that the Convention created judicially enforceable rights (an issue it did not decide), the suppression of evidence is not a proper remedy for a violation.

In March 2005 the United States withdrew from the Optional Protocol concerning the Compulsory Settlement of Disputes, which provides for disputes to be settled by the International Court of Justice.

See the related ASIL Insight on this case for a more detailed analysis.

International Criminal Tribunal for Rwanda (ICTR) (Trial Chamber I), Prosecutor v. Joseph Serugendo, Case No. ICTR-2005-84-I (June 12, 2006)

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Joseph Serugendo was indicted by the ICTR prosecutor with conspiracy to commit genocide, genocide, complicity to commit genocide, direct and public incitement to commit genocide and persecution as a crime against humanity. Serugendo was a member of the Comité d’Initiative, the governing board of Radio Television Libre des Mille Collines; the advisor on technical matters to the RTLM radio station; Chief of the Maintenance Section of Radio Rwanda in the Office Rwandais d’Information {“ORINFOR”] and a member of the enlarged National Committee of the Interahamwe za MRND. He accepted that between 1992-1994 he planned with other leaders of the MRND political meetings and rallies aimed at inciting members of the Interahamwe to kill or cause serious harm to members of the Tutsi population, and that during 1993-94 he planned to establish, use and fund the RTLM as a radio station which disseminated an anti-Tutsi message intended to foment racial hatred and in fact that such broadcasts were made and resulted in the incitement of others to kill hundreds of thousands of Tutsis throughout Rwanda.

Based on the facts the Chamber found that Serugendo possessed the actus reus and mens rea of the crimes he faced.

On 12 January 2006 a joint motion for consideration of a plea agreement was filed and on 16 January a plea agreement was filed. The Chamber concurred with the Trial Chamber decision that some form of consideration should be given to one who confesses their crime and other mitigating circumstances should be considered in sentencing.

The Chamber held that Serugendo’s change of plea to guilty was a mitigating circumstance. In addition, the Chamber held that Serugendo’s cooperation with the Prosecution and other factors were mitigating circumstances. For example, Serugendo’s public expression of remorse and regret for his crimes, his good character prior to 1994, the fact that he is married and 53 years old, assistance given to certain victims by Serugendo, and Serugendo’s ill health since he has been diagnosed with a terminal illness.

The Chamber took into account the sentencing practices in the courts of Rwanda and the sentencing recommendations of the parties, although stating that the Chamber was not automatically bound by these. Therefore, despite the severity of Serugendo’s crimes the Chamber accepted the mitigating circumstances, especially his medical condition, and sentenced Serugendo to a single term of six years imprisonment with an order that he receive adequate medical treatment including hospitalization if needed.

Cases of Note is compiled with the assistance of the International Legal Materials and International Law in Brief editorial staff. ILIB is a free-of-charge electronic resource published by the American Society of International Law. To sign up for ILIB, click here.