International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
March 2006, Volume 1, Issue 1

cases of note

The Hague District Court (Rechtbank's-Gravenhage, The Netherlands): Case against Frans Van Anraat (December 23, 2005)

Click here for the decision (in Dutch).

The Hague District Court (the "Court") handed down its judgment in the case against Frans Van Anraat, in which it found Van Anraat guilty of complicity in war crimes committed in Iraq. The Court sentenced Van Anraat to 15 years of imprisonment.

Van Anraat, a Dutch businessman, supplied raw materials to the government of Iraq that were used for the development of mustard gas which was later used to attack the Kurdish population of Halabja in 1988. During this operation, tens of thousands of civilians are alleged to have been killed or maimed. 5000 civilians became victims of the Halabja massacre. 

Stating that the attacks against the Kurdish population of Iraq were carried out with the intent to destroy it, in whole or in part, the Court concluded that these attacks were acts of genocide. Van Anraat was acquitted of the charges of genocide, because the Court did not find sufficient evidence of Van Anraat’s knowledge of the genocidal intent of the Iraqi government.

The Court awarded fifteen Kurds from Iraq and Iran, who had joined the trial as civil parties the nominal amount of EUR 680.

The defense lawyers said that they would appeal the judgment.

U.S. Court of Appeals for the Ninth Circuit: Yahoo! Inc. v. La Ligue Contre le Racisme et L’Antisemitisme and L’Union des Etudiants Juifs de France (January 12, 2006)

The decision is available on Lexis.

An en banc panel of the 9th Circuit U.S. Court of Appeals reversed with directions to dismiss a District Court decision finding that a French Court’s orders were not enforceable against a U.S. company.

Two French entities, La Ligue Contre le Racisme et L’Antisemitisme and L’Union des Etudiants Juifs de France (“LICRA” and “UEJF”), filed suit in the French Courts against Yahoo! and Yahoo! France for the sale of Nazi objects on Yahoo!’s websites, in violation of French law.  The French Court issued an interim order requiring Yahoo! and Yahoo! France to remove these objects from the websites or alternatively to limit access of French citizens to the offensive material.  The French order assessed penalties and damages for the display of the Nazi material on the websites.  After the order was issued, Yahoo! removed some of the disputed content from its websites; however, Yahoo! claimed that it did so for its own reasons and not as a result of the French Court orders.  Yahoo! subsequently filed suit in U.S. District Court seeking a declaratory judgment that the French judgments were unenforceable. 

The en banc panel of the Appellate Court held that the district court had properly exercised personal jurisdiction over LICRA and UEJF because the two French entities had sufficient minimum contacts with California as a result of three actions on the part of LICRA, UEJF and the French government.  These actions included: sending a cease and desist letter requesting the removal of the content to Yahoo!’s headquarters in California, serving process on Yahoo! in California and because the French Court’s interim orders directed Yahoo! to act in California to remove the content.

Despite the presence of personal jurisdiction, the Court held that Yahoo!’s case was not ripe because the French Court stated that Yahoo! complied with the spirit of the Court orders and thus no further efforts would be undertaken to enforce the decision.  Further, the Appellate Court declined to evaluate whether or not the French decision chilled Yahoo!’s First Amendment freedom of speech rights, stating that to do so would have the effect of extraterritorially applying the U.S. Constitution.

U.S. Court of Appeals for the Eighth Circuit: Kimumwe v. Gonzales (December 13, 2005)

The U.S. Court of Appeals for the Eighth Circuit (“the Court”) denied the petition for review of the applicant’s asylum claim.

The applicant, a national of Zimbabwe who fled his country in March 2002, sought asylum, withholding of removal and protection under the Convention against Torture (“CAT”) on the grounds that he was a homosexual, who, if returned to Zimbabwe, would suffer persecution by the Zimbabwean government on account of his sexual orientation.

The applicant cited incidents from his youth in Zimbabwe to support his claim for past persecution, including being expelled from a secondary school that prohibited all sexual activity, and being detained in jail for two months for having engaged in sexual activity at age 15 (in 1998). The Zimbabwe police detained him for two months, but did not charge him with a criminal offense. The applicant was released from jail following a bribe from the head of the orphanage where he was raised. The police gave him a letter which stated that he had been charged with sodomy and sexual assault, but was released for lack of evidence. President Robert Mugabe declared homosexuality illegal in 1998, and following this law and further anti-homosexual statements by President Mugabe, the applicant fled to Kenya and then to the United States with the assistance of the Gay and Lesbians of Zimbabwe organization.

The applicant contended that the immigration judge wrongly concluded that, based mostly on his allegations of past persecution in Zimbabwe, the applicant had failed to satisfy the burden of showing a well-founded fear of future persecution. The immigration judge had concluded that the actions of the Zimbabwean authorities, namely expulsion from school and detention in jail, were not based on the applicant’s sexual orientation, but rather on his involvement in prohibited sexual conduct.

The Court upheld the immigration judge’s decision, finding that a reasonable adjudicator could conclude from the facts in this case that the Zimbabwean government’s action was not taken because of the applicant’s sexual orientation, but rather due to allegations of sexual misconduct. This was so, according to the Court, even assuming that the sanction was extreme enough to constitute persecution and assuming that homosexual status constitutes a “particular social group” for purposes of U.S. Immigration law (8 CFR section 208).

Federal High Court of Nigeria: Emmanuel Egbuna and David Anyaele v. Charles Taylor and Others, Ruling on Preliminary Objections (November 1, 2005)

The decision was provided to the ILM office by Open Society Justice Initiative’s office in Nigeria.

The High Court of Nigeria (the “Court”) upheld the applicants’ right to maintain a claim before the Court.

The applicants are Nigerian nationals who suffered amputation in Sierra Leone in 1999 by, as their claim alleges, the Revolutionary United Front (RUF) militia, which was allegedly supported by Former President of Liberia Charles Taylor.

Charles Taylor was indicted by the Special Court for Sierra Leone  (the “SCSL”) on March 7, 2003 on 17 counts of Crimes against Humanity, violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II and of Other Serious Violations of International Humanitarian Law. The indictment of the SCSL alleges, inter alia, that Charles Taylor “provided financial support, military training, personnel, arms, ammunition and other support and encouragement to the RUF” in order to destabilize Sierra Leone and to “obtain access to the mineral wealth.” Moreover, the indictment alleges that Charles Taylor participated in a joint criminal enterprise, the actions of which included the crimes of unlawful killings, abductions, forced labor, physical and sexual violence, use of child soldiers, and the looting and burning of civilian structures.  Taylor sought safe haven in Nigeria, which granted him asylum in August 2003.

The applicants challenged the decision of granting asylum to Charles Taylor and asked the Court in Nigeria to review this decision, bringing a suit against Charles Taylor, the Federal commission for Refugees, the National Commission for Refugees, the President of the Federal Republic of Nigeria, and the Attorney-General of the Federal Republic of Nigeria.

The government raised preliminary objections arguing that the Court did not have jurisdiction due to the applicants’ lack of locus standi, because the question at issue was a political non-justiciable question, and because the action was barred by the statute of limitations. The applicants argued, inter alia, that they challenged an administrative act of granting refugee status and that this was not a political issue. As to the statute of limitations, the applicants submitted that “a well known exception to the limitation period is where it can be shown that a public officer has breached or abused his office.”

The Court held that the statute of limitations had not run, because the granting of asylum “constitutes an ongoing damage or injury to applicants and in such a situation their statutory right of action has not yet come to an end.” Dismissing the government’s locus standi argument, the Court noted that, according to the applicants’ affidavits, which alleged that the applicants were mutilated, “there is no other conclusion to reach… than the fact that these applicants are not pursuing any public right but rights that are personal to them.”

The Court also affirmed that the applicants have a reasonable cause of action.  In conclusion the Court held that “[t]his matter is properly before the Court and it is a competent action. This Court therefore has jurisdiction to hear it.”

According to Justice Initiative’s website, the Nigerian Government has expressed its intention to appeal this decision.

Inter-American Commission on Human Rights: Extension of Precautionary Measures (N. 259) regarding Detainees in Guantanamo Bay, Cuba (October 28, 2005)

Click here for the document.

The Inter-American Commission on Human Rights (“the Commission”) requested that the United States

“1. take the immediate measures necessary to have the legal status of the detainees at Guantanamo Bay effectively determined by a competent tribunal;

  • take all measures necessary to thoroughly and impartially investigate, prosecute and punish all instances of torture and other mistreatment that may be perpetrated against the detainees at Guantanamo Bay, whether through methods of interrogation or otherwise, and to ensure respect for the prohibition against the use in any legal proceeding of statements obtained through torture, except against a person accused of torture as evidence that the statement was made;
  • take the measures necessary to ensure that any detainees who may face a risk of torture or other cruel, inhuman or degrading treatment if transferred, removed or expelled from Guantanamo Bay are provided an adequate, individualized examination of their circumstances through a fair and transparent process before a competent, independent and impartial decision-maker. Where there are substantial grounds for believing that he or she would be in danger of being subjected to torture or other mistreatment, the State should ensure that the detainee is not transferred or removed and that diplomatic assurances are not used to circumvent the State’s non-refoulement obligation.”

In its written and oral representations to the Commission, the United States reiterated its previous position regarding the admissibility of the Commission’s precautionary measures request, namely that the Commission’s jurisdiction and competence do not extend to the laws and customs of war or to issuing requests for precautionary measures against non-States Parties to the American Convention. It also contended that there was a requirement of exhaustion of domestic remedies. It further submitted, inter alia, that as of September 27, 2005, 160 habeas proceedings involving 292 detainee petitions have been filed with U.S. courts.  It noted that these proceedings include Hamdan v. Rumsfeld, 415 F. 3d 33 (DC Cir. 2005) and In re Guantanamo Detainees, 355 F. Supp. 2d 311 (D.D.C. 2005), resulting in conflicting conclusions as to whether non-resident aliens have the right to challenge their detention under the U.S. Constitution, under customary international law or under international treaties. It noted that a consolidated appeal to the U.S. District Court for the District of Columbia is said to be pending. The United States also submitted that there have been administrative proceedings at Guantanamo Bay, including proceedings before Combatant Status Review Tribunals that were initiated in July 2004 and are charged with determining whether detainees are properly classified as enemy combatants.

The United States also contended, with respect to allegations regarding the treatment of Guantanamo detainees, that the Department of Defense denies any allegations of torture and restates its commitment to treating detainees humanely. It submitted that as of December 2004, the U.S. government has documented eight instances of infractions which have resulted in different actions ranging from admonishment to court-martial. It further contended that the facility at Guantanamo is continually open to the International Committee of the Red Cross (“ICRC”) and foreign and domestic media.

In the petitioners’ submissions to the Commission, they alleged, inter alia, that there are still approximately 225 detainees who have been completely denied any right of access to counsel. Moreover, they submitted that the U.S. military has interfered with the Guantanamo detainees’ right to a confidential attorney-client relationship. In regard to the treatment of detainees, the petitioners alleged that the assurances provided by the U.S. government have proven unreliable; recent reports by the ICRC, statements by U.S. government officials, government memoranda leaked to the media and media reports indicate that the detainees have been subjected to beatings, sleep deprivation, sensory deprivation, exposure to extreme temperatures and prolonged isolation, and that such treatment has been approved at the highest levels of authority of the United States.

The petitioners further alleged that with respect to the transfer of detainees, the countries to which they have been transferred have deplorable human rights records, and that although the U.S. government has negotiated transfer agreements with some Muslim countries that seek assurances that these countries would refrain from torture, there are no means of enforcing such assurances.

In regard to jurisdiction, the Commission concluded that it has the authority to adopt precautionary measures in respect of non-State parties to the American Convention and to consider and apply international humanitarian law. It also stated that the principle of exhaustion did not apply to the precautionary measures, for such measures are “intended to reinforce and complement, rather than replace, domestic jurisdiction.” 

The Commission also observed, inter alia, that, notwithstanding the Supreme Court decision in Rasul v. Bush, the information before it indicates “that nearly half of the Guantanamo detainees have not been given effective access to counsel or otherwise provided with a fair opportunity to pursue a habeas corpus proceeding in accordance with the Supreme Court’s ruling, despite the fact that the purpose of habeas is intended to be a timely remedy aimed at guaranteeing personal liberty and humane treatment.” It concluded that the situation at Guantanamo continues to be of an urgent character, and asked that the United States provide information concerning compliance with its precautionary measures, together with the additional information requested, within 30 days.

European Court of Human Rights (Grand Chamber): Hirst v. United Kingdom (October 6, 2005)

The judgment is available on the Court’s website.

The European Court of Human Rights (the “Court”) found that the restriction of voting rights of all convicted prisoners violated Article 3 of Protocol No. 1 of the European Convention on Human Rights (the “Convention”).

The applicant pleaded guilty to manslaughter on the ground of diminished responsibility in 1980 and was sentenced to a term of discretionary life in prison. The applicant’s tariff (that part of the sentence relating to retribution and deterrence) expired in 1994, but he continued to remain in detention due to considerations relating to risk and danger to the public.

The applicant was barred from voting by section 3 of the Representation of the People Act 1983, which states that “[a] convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local election.” The law provided for exceptions for persons committed to prison for contempt of court or for default in paying fines.

The applicant initiated proceedings under section 4 of the Human Rights Act 1998 in the United Kingdom, but his claim was rejected.

The Chamber of the Court held unanimously that there had been a violation of Article 3 of Protocol No. 1, because the voting restriction was disproportionate, as it excluded every convict of from voting, irrespective of the length of the sentence and the nature of the crime committed.

Before the Grand Chamber, the applicant contested the idea uttered in Parliament that stripping a convict of his voting rights was part of his punishment and that punishment could legitimately remove fundamental rights other than the deprivation of liberty and argued that this was inconsistent with the stated rehabilitative aim of prison.

The Court noted that although the wording of Article 3 of Protocol No. 1 to the Convention is drafted in a different manner than the provision of the International Covenant on Civil and Political Rights, it still guarantees the individual’s right to vote and to stand for election. The Court also stated that, although “the right to vote is not a privilege”, it is not absolute and the member states are granted a wide margin of appreciation. Underlining “that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty”, the Court specified that restrictions with the right to vote had to comply with the principle of proportionality.  

The Court noted that the restriction “applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances,” and concluded that  [s]uch a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be.”

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.

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