International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
Jan/Feb 2007, Volume 2, Issue 1

cases of note

United States: Guevera v. Peru, (11th Cir.) (November 1, 2006)

Click here for document.

At issue before the court was whether a foreign state’s offer of a reward in exchange for information enabling it to find and apprehend a fugitive fell within the “commercial activity exception” to the Foreign Sovereign Immunities Act. The court held that it does.

In November 2000 a prosecutor in Peru issued national and international arrest warrants for Vladimiro Lenin Montesinos Torres, who served as an advisor to Peruvian President Alberto Fujimori and chef of Peru’s National Intelligence System in the 1980s. Montesinos is accused of a plethora of crimes during his tenure including arms trafficking, drug dealing, money laundering, extortion, and a number of murders. To help find and capture Montesinos, Peru established a five million dollar reward. In June 2001 FBI agents detained Jose Guevara in Miami, and informed him that he would be criminally prosecuted unless he revealed information to them about Montesinos. Guevara exposed Montesino’s whereabouts and helped the Venezuelan intelligence agency capture him. Peru then refused to pay him the promised reward. Guevara brought suit claiming breach of contract, fraudulent inducement, and fraudulent misrepresentation against the Republic of Peru, its Ministry of the Interior, and two Ministers of the Interior, Antonio Vidal, and Vidal’s successor, Fernando Rospigliosi. Peru and the Ministry of Interior moved to dismiss the suit alleging that they were immune under the Foreign Sovereign Immunities Act (FSIA) 28 U.S.C. 1602-1611. Vidal and Rospigliosi also moved to dismiss, contending that as agents of Peru they were similarly entitled to sovereign immunity. The district court granted Peru’s and the Ministry of Interior’s motion for summary judgment, holding that Peru’s actions did not fall under one of the exceptions to FSIA, and it dismissed the suits against the individual defendants for lack of subject matter jurisdiction, holding that Peru’s sovereign immunity protected them. Guevera appealed the dismissal of his complaint.

In its analysis, the Eleventh Circuit discussed FSIA’s general grant of immunity for foreign governments, which is subject to certain exceptions, including the “commercial activity” exception . 28 U.S.C. 1605 (a)(2). Peru argued that offering a reward for capturing an alleged criminal, did not comprise a commercial activity. Guevara by contrast, contended that the key issue was whether private actors could also offer such a reward, and because they can, the action is a “commercial” one. The court examined the language of FSIA at 28 U.S.C. 1603 (d) regarding the meaning of “commercial activity” and the United States Supreme Court decision Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 612 (1992). In Weltover, the Supreme Court set forth the rule for determining when an activity is “commercial”: when a foreign government acts as a private player, rather than a regulator, in a market. Further, because the FSIA provides that the commercial character of an act is to be determined by examining the nature of the act, rather than its purpose, the Court required an examination of the motive behind the action, and whether it is the sort of activity in which private parties engage in “trade, traffic, or commerce.” Applying the Weltover standard to the facts before it, the Eleventh Circuit reasoned that Peru’s offer of a reward for information was commercial in nature, and fell within the "commercial activity" exception to the FSIA, and therefore Peru was not immune from suit. Because the Eleventh Circuit held that Peru was not immune from suit, it remanded to the district court the determination whether to grant the two individual defendant's motion to dismiss for lack of personal subject matter jurisdiction.

United States:  Hamdan v. Rumsfeld, (D.D.C.)( December 13, 2006)

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 This is the first decision after the passage of the Military Commissions Act of 2006 (Pub. L. 109-366) (the Act) applying the Act to the case that led to the United States Supreme Court Hamdan v. Rumsfeld decision.  Judge James Robertson dismissed Salim Ahmed Hamdan’s petition for habeas corpus, finding that he lacks a constitutional entitlement to petition for the writ, and the “jurisdiction stripping” provisions of the Act blocked him from availing himself of it statutorily. 

After enactment and Presidential signature of the Military Commission Act of 2006, the government sought to dismiss Hamdan’s petition for a writ of habeas corpus for lack of subject matter jurisdiction.  The government based its motion on section 7 of the Act, that amended the federal habeas statute 28 U.S.C. 2241 by striking the current subsection (e) and adding a new one.  The new language prevents a “court, justice, or judge” from having jurisdiction to “hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” 

Counsel for Hamdan argued that the Act failed to provide sufficient clarity to apply its jurisdiction stripping provisions retroactively. 

In his opinion Judge Robertson traces the history of the writ of habeas corpus from its development in English Common Law, to modern history.  He notes that the “[w]rit became a favorite tool of both Parliament and the judiciary in battling the monarch’s assertion of unbridled power.”  The language in the Constitution permits suspension of the writ only in cases of “rebellion or invasion.”  U.S. Const. art. I, 9, cl. 2.

In dicta, Judge Robertson noted that because there has been neither an invasion nor a rebellion, the writ has not been suspended and survives the Act.  He states “[i]f and to the extent that the MCA operates to make the writ unavailable to a person who is constitutionally entitled to it, it must be unconstitutional.”  He did however, find Eisentrager v. Johnson, 339 U.S. 763 (1950), controlling authority on the availability of the constitutional habeas to enemy aliens.  Eisentrager involved two Germans living in China after World War II.  A military commission tried them and convicted of war crimes and sent to Germany to serve their sentences.  The United States Supreme Court held that they were not constitutionally entitled to habeas relief because they were not within territory over which the U.S. is sovereign, and their “offense” capture, trial, and punishment all occurred outside of the territorial jurisdiction of a U.S. court.  Judge Robertson thus found that the Suspension Clause does not “guarantee the right to petition for habeas corpus to non-resident enemy aliens captured and detained outside of the United States.”

Israel Supreme Court: Public Committee Against Torture in Israel v. Israel (December 16, 2006)

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The Israeli Supreme Court examined whether preventative targeted strikes in the Gaza Strip aimed at terrorists who planned to commit attacks against Israeli soldiers and civilians, but which also resulted in the deaths of civilians, were illegal. The court held that such strikes are not always illegal, but must be examined in the context of the law of armed conflict and with respect to the international law norm of proportionality.

The case arose out of the second intifada that began in February 2000. It resulted in the deaths of more than one thousand Israelis and thousands of Palestinians. In response, the State of Israel has used a “policy of targeted frustration of terrorism” in which its security forces kill representatives of terrorist organizations seeking to launch terrorist attacks against Israel. Until the end of 2005, the petitioners claim that almost three hundred members of terrorist organizations have been killed, as well as approximately 150 civilians.

Petitioners, The Public Committee Against Torture in Israel and the Palestinian Society for the Protection of Human Rights and the Environment, brought suit against the Government of Israel and its Prime Minister, the Minister of Defense, the Israel Defense Forces, the Chief of the General Staff of the Israel Defense Forces, and Shurat HaDin the Israel Law Center and others, alleging that the targeted killing policy is illegal and violative of international law, Israeli law, and basic principles of human morality. They sought to cancel the “targeted killing” policy, and order that the Government of Israel and individual defendants refrain from acting pursuant to that policy.

In his analysis, President Emeritus Barak applies the law of war distinction in the treatment of combatants and civilians. While attacks may be made against combatants, they are not to be made against civilians unless civilians “take a direct part” in hostilities. He notes that the terrorists and the organizations sending them to carry out attacks are “unlawful combatants,” who are civilians yet not protected from attack as long as they are participating in the hostilities. He notes however, that customary international law has not yet recognized a category of “unlawful combatants.” He also discusses the international law rule of proportionality that forbids legitimate strikes if they are likely to result in injury or death to civilians that is excessive in comparison to the military benefit.

Approximately 42 pages.

European Court of Human Rights: Case of Klein v. Slovakia, (October 31, 2006).

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The European Court of Human Rights (EHCR) held that Slovakia’s interference with Martin Klein’s right to freedom of expression violated Article 10 of the Convention as it was not justified by either a pressing social need or a legitimate aim pursued, and was not “necessary in a democratic society.” The court awarded Klein 6,000 Euros in non-pecuniary damages and 5,210 Euros in cost and expenses.

Martin Klein, a Slovakian journalist and film critic, brought suit in June 2001 against the Slovak Republic pursuant to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). Klein alleged that his right to freedom of expression under Article 10 of the Convention had been violated because of his conviction for publication of a satirical article entitled “The falcon is sitting in the maple tree, Larry Flynt and seven slaps to the hypocrite,” in the weekly publication Domino Efekt. In it, Klein criticized the televised remarks of Archbishop Jan Sokol calling for the Slovakian government to ban publicity posters for the Milos Forman film “The People v. Larry Flynt,” as well as not to allow the showing of the film. Klein questioned why Slovakian Catholics did not withdraw from the organization headed by “such an ogre,” and emphasized the Archbishop’s cooperation with the secret police of the former communist regime. The posters depicted the principal protagonist in the film with the American flag around his hips as he was crucified in the pubic area of a woman who was dressed in a bikini. Two associations complained that the religious sentiments of their members were offended by the article, and criminal proceedings were brought against Klein under Article 198(1)(b) of the Slovakian Criminal Code. This article prohibits public defamation of a nation, language, race, or group for their political belief or faith, and allows imprisonment for up to one year and a financial penalty. A District Court held that Klein had defamed the highest representative of the Catholic Church in Slovakia and offended members of the church in violation of Article 198(1)(b), and fined him 15,000 Slovakian korunas (about 395 Euros), to be converted into a month in prison if he did not pay. Klein and the associations appealed the District Court’s holding. A Regional Court upheld the sentence of the District Court, and the company VMV paid Klein’s fine.

The ECHR examined Article 10 of the Convention, which provides for the right of freedom of expression, subject to restrictions “[a]s are prescribed by law and are necessary in a democratic society, in the interests of national security, . . .for the protection of the reputation or rights of others.” It noted that Klein’s conviction for the publication of the article did interfere with his freedom of expression guaranteed in Article 10 of the Convention. It emphasized that the freedoms enunciated in Article 10 apply to ideas that may offend or shock sectors of society. It opined that the test whether the interference was “necessary in a democratic society” required it to ascertain whether the interference constituted a “pressing social need,” whether it was proportionate to the legitimate aim pursued, and whether the government’s rationale for imposing the interference was relevant and sufficient. The ECHR did not concur with the Slovakian courts. It accepted Klein’s argument that his article did not unduly interfere with the rights of catholic believers to express and exercise their religion, and did not justify the penalty imposed upon him.

United States: Doe v. Exxon Mobile Corporation (D.C. Cir. January 12, 2007)

Click here for document. ( Approximately 24 pages)

Exxon Mobil Corporation (“Exxon”) appealed a district court order denying its motion to dismiss, contending that the case involved a non-justiciable political question. In the alternative, Exxon sought the court of appeals to declare its appeal as a writ of mandamus compelling the district court to dismiss. The court of appeals held that it lacked jurisdiction over Exxon’s appeal under the collateral order doctrine and that the denial of a motion to dismiss based upon political question grounds is not an immediately appealable collateral order. It further denied the petition because Exxon did not establish a “clear and indisputable” right to have the plaintiffs’ claims dismissed.

Exxon operates a natural gas and processing plant in Aceh province, Indonesia. Plaintiffs, eleven Indonesian villagers from Acheh alleged that Exxon’s security forces committed murder, torture, sexual assault, battery, false imprisonment, and other torts. The plaintiffs further asserted that the security forces were comprised of members of the Indonesian military, and Exxon knew they had committed human rights abuses in the past, and the forces acted under Exxon’s “direction and control.”

In June 2001 the plaintiffs sued Exxon and PT Arun LNG Company under the Alien Tort Statute (ATC) and the Torture Victims Protection Act (TVPA), and brought claims for wrongful death, assault, battery, arbitrary arrest and detention, false imprisonment, intentional and negligent infliction of emotional distress, negligence in hiring and supervision, and conversion. They sought compensatory and punitive damages, declaratory relief, attorney’s fees, and an injunction prohibiting the defendant’s from similar conduct in the future. In October 2001, the defendants moved to dismiss on the grounds that the case involved a non-justiciable political question. The district court asked the State Department whether hearing the plaintiffs’ claims would impinge on U.S. foreign policy interests. The State Department’s Office of the Legal Advisor indicated that hearing the plaintiffs’ claims would “risk a potentially adverse impact on the significant interests of the United States,” particularly with respect to the war on terror and that it might discourage foreign investment; but that whether the case would adversely impact upon U.S. Foreign Policy interests depended upon the nature, intrusiveness, and extent of discovery. The court of appeals defined the issue before it as whether a district court’s denial of a defendant’s motion to dismiss on ground of a political question is an immediately appealable collateral order. It held that it was not because Exxon had not satisfied the third prong of the test for the collateral order doctrine: whether the order in question will be effectively unreviewable on appeal from final judgment. The court of appeals refused to grant’ Exxon’s petition for mandamus, because to do so, it would have to find that the district court “clearly and indisputably” exceeded its jurisdiction by refusing to dismiss the case under the political question grounds.

European Court of Human Rights: Chitayev v. Russia (January 18, 2007)

Click here for document. (Approximately 33 pages).

Two brothers, Arbi Chitayev and Adam Chitayev, brought suit against the Russian Federation complaining that local officers had committed unlawful arrest and detention, torture, inhuman and degrading treatment against them, and that these crimes had been insufficiently investigated. The European Court of Human Rights (EHCR) held that there had been a violation of the brothers’ right not to be tortured in violation of Article 3 of the Convention, and that the alleged abuses had not been investigated adequately. The Court found a violation of Article 5 regarding arbitrary detention for only a portion of the time the brothers were held, from June 19 and October 4, 2000, with the other portion of time that they were detained, from April 17 to June 18 lawful under Russian law. The Court ordered Russia to pay 35,000 Euros to each brother in non-pecuniary damages, and 7,629.90 Euros in costs and expenses to the brothers’ representatives.

In January 2000 officers of the Temporary Office of the Achkhoy-Martan District (VOVD) searched the brother’s home for weapons and took a cellular phone. Adam Chitayev complained to the head of the VOVD that the search was unauthorized and requested that the phone be returned. On April 12, 2000, VOVD returned to the family home and took additional electronic goods and brought the brothers to the VOVD station. While the brothers were detained, they were tied to chairs and beaten, given electric shocks, strangled, set upon by dogs, and some of their skin was torn away with pliers. At one point, they were put into a truck with other prisoners and told that they were going to be executed, but were instead taken to another detention center. They were released in October 2000.

The Russian government argued that the ECHR should declare the case inadmissible as the brothers had failed to exhaust domestic remedies, and cited their failure to challenge the lawfulness of their arrest or detention to a prosecutor or a court, and they could have sought compensatory damages for their injuries in a civil court upon their release. The brothers responded by claiming that they could not have availed themselves of Chechen courts, or the legal system there generally, as neither were functioning in 2000. They argued further that after their release, they asked the prosecutor’s office to investigate their claims, and to prosecute those involved, but the officials failed to investigate or act. The ECHR examined the requirement of exhaustion of domestic remedies pursuant to Article 35 1 and opined that the government’s bears the burden of demonstrating that the remedies were effective, and able to offer redress to the applicant’s complaints with a reasonable view of success. The court therefore dismissed the government’s argument with respect to exhaustion of remedies for the Article 3 claim regarding torture, but upheld it regarding their claims that their rights under Article 8 to respect for private and family life were violated by the searches and seizures, because the brothers could have sought judicial redress for such acts when the courts became operational.

The ECHR found that the brothers had been subjected to torture in violation of their rights under Article 3 because agents of the state intentionally, and during the course of their official duties, subjected them to “severe” pain and suffering to obtain a confession or other information from them.

The synopses are from Susan A. Notar, Managing Editor, International Legal Materials.

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