Spain’s Tribunal Constitucional: Guatemalan Genocide Case (September 26, 2005)

Click here for the decision.

Spain’s Tribunal Constitucional ("the Court") overturned the decision of Spain’s Tribunal Supremo, finding that the jurisdiction provision for crimes against humanity, incorporated in Spain’s criminal code, was not limited, either by the language of the code or by other principles of international law, to cases involving Spanish nationals who were victims of genocide. 

The Court delivered its opinion based on three appeals granted to Rigoberta Menchu Tum and others. The Tribunal Supremo had decided in 2003 that its jurisdiction was limited to acts of genocide in which Spanish nationals were victims, and in doing so relied on recent decisions by both German and Belgian courts in support of its conclusion.

The Court observed that the limitations on jurisdiction imposed by the Tribunal Supremo do not appear either in the Spanish criminal code or in the Convention on the Prevention and Punishment of the Crime of Genocide ("Genocide Convention"). The Court found that the lower court misread Article 23.4g of Spain’s Ley Orgánica del Poder Judicial (LOPJ), for the only restriction on jurisdiction is that the accused must not have already been brought before another court for the crimes in question. In particular, the Court held that Article VI of the Genocide Convention, which provides that "Persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction" does not create any limitation on the exercise of universal jurisdiction; moreover, any such restriction imposed by the courts would deprive the Genocide Convention of its meaning and purpose.

For further analysis of the lower court’s decisions, see the Introductory Note by Luis Benavides, 42 ILM 683 (2003), also available in Lexis and Westlaw.

European Court of Human Rights (ECHR) Grand Chamber: Leyla Sahin v. Turkey (November 10, 2005)

The decision is available on the Court’s website.

The Grand Chamber held by sixteen votes to one that the prohibition of the headscarf at the University did not violate the applicant’s rights under the European Convention on Human Rights (the "Convention").

The applicant, Leyla Sahin, is a Turkish national who comes from a family of practicing Muslims and considers it her duty to wear the headscarf. When she was a fifth year student of medicine at Istanbul University, the Vice Chancellor of the university issued a circular, according to which "students whose heads are covered (who wear the Islamic headscarf)…must not be admitted to lectures, courses or tutorials." Sahin was subsequently denied access to lectures and examinations on various occasions due to the fact that she wore the headscarf. Sahin claimed that the ban of the Islamic headscarf at the university violated her right to freedom of religion and right to manifest her religion as set out in Article 9 of the Convention.

The Court found that there had been an interference which had been "prescribed by law." The Court then had to consider whether this restriction was also necessary in a democratic society. The Court stated that the notion of secularism, a fundamental principle of the Turkish State, was "consistent with the values underpinning the Convention" and that "upholding that principle may be considered necessary to protect the democratic system in Turkey." The Court noted that there was "no good reason to depart from the approach taken by the Chamber", which had held: "[W]hen examining the headscarf in the Turkish context, there must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it. …[T]he issues at stake include the protection of the rights and freedoms of others and the maintenance of public order in a country in which the majority of the population, while professing a strong attachment to the rights of women and a secular way of life, adhere to the Islamic faith. Imposing limitations on freedom in this sphere may, therefore, be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims…. The Court does not lose sight of the fact that there are extremist political movements in Turkey which seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts. … It has previously said that each Contracting State may, in accordance with the Convention provisions, take a stance against such political movements, based on its historical experience… The regulations concerned have to be viewed in that context and constitute a measure intended to achieve the legitimate aims referred to above and thereby to preserve pluralism in the university." The Court added: "[W]here the value of pluralism, respect for the rights of others and, in particular, equality before the law of men and women are being taught and applied in practice, it is understandable that the relevant authorities should wish to preserve the secular nature of the institution concerned and so consider it contrary to such values to allow religious attire."

The Court concluded that the interference was justified in principle and proportionate to the aim pursued.

The applicant also asserted a violation of Article 2 of Protocol I to the Convention (right to education). As to this issue, the Court found that although that provision applied to institutions of higher education, "the restriction in question did not impair the very essence of the applicant’s right to education."

European Court of Human Rights (ECHR): Xenides-Arestis v. Turkey (December 22, 2005)

The European Court of Human Rights (the "Court") held by six votes to one that there has been a violation of Article 8 (right to respect for the applicant’s home) and Article 1 of Protocol No. 1 (protection of property) of the European Convention on Human Rights.

The applicant is a Cypriot national of Greek-Cypriot origin who owns land in Famagusta. There are three houses on the plot that belongs to her, and one of them was her home in which she lived with her husband and her children. She also owns part of a plot of land with an orchard. The applicant has been denied access to her home since the Turkish invasion of Cyprus in July and August 1974.

The Court reiterated its previous jurisprudence in Cyprus v. Turkey, in which it found that the "complete denial of the right of Greek-Cypriot displaced persons to respect for their homes in northern Cyprus since 1974 constituted a continuing violation of Article 8 of the Convention."

The applicant also submitted that the "continuous denial of access to her property in northern Cyprus and the ensuing loss of all control over it and all possibilities to use and enjoy it, constituted a violation of her right to peaceful enjoyment of property under Protocol No. 1". In this respect the Court reiterated its findings in Loizidou v. Turkey, in which it stated that "as a consequence of the fact that the applicant has been refused access to the land since 1974, she has effectively lost all control over, as well as possibilities to use and enjoy her property. The continuous denial of access must therefore be regarded as an interference with her rights under Article 1 of Protocol 1. … In such circumstances, the Court concludes that there has been and continues to be a breach of Article 1 of Protocol No. 1." The Court declared that it saw no reason to depart from this approach and held that the applicant’s property rights had been violated. Moreover, the Court stated that it "cannot ignore the fact that there are already approximately 1,400 property cases pending before the Court brought primarily by Greek-Cypriots against Turkey." The Court then stated that "a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects…. The Court considers that the respondent State must introduce a remedy, which secures genuinely effective redress for the Convention violations identified in the instant judgment in relation to the present applicant as well as in respect of all similar applications pending before the Court."

The Court adjourned the issue of damages, stating that this was being done in view of the "relevant general measures" Turkey should adopt as provided in the judgment.

Document available at: http://cmiskp.echr.coe.int/tkp197/view.asp?
action=html&documentId=791226&portal=hbkm&source=externalby
docnumber&table=1132746FF1FE2A468ACCBCD1763D4D8149

NAFTA Chapter 11 Arbitral Tribunal: International Thunderbird Gaming Corporation v. the United Mexican States (January 26, 2006)

The Arbitral Tribunal found no violation of the National Treatment principles by the Mexican government on the basis of Chapter 11 of the North American Free Trade Agreement.

Various entities of the Canadian company, International Thunderbird Gaming Corporation (Thunderbird), opened gaming facilities in several Mexican cities. Prior to the commencement of operations, Thunderbird requested an opinion letter from the Director Gobierno de la Secretaria de Gobernacion (SEGOB) as to the Mexican government’s stance on the legality of the type of facility of a proposed gaming facility. The Opinion Letter stated that the venture would be legal. One year later, after a change in government regimes and after Thunderbird had started developing and opening gaming sites, SEGOB issued another letter stating the company’s activities were illegal and subsequently SEGOB began shutting down the various enterprises. Thunderbird filed a claim under NAFTA’s Chapter 11 Dispute Settlement provision claiming that the Mexican government had violated the principles of National Treatment.

Despite a finding that International Thunderbird Gaming Corporation could make a claim on behalf of the various entities established to undertake this venture, the Tribunal found that the Opinion Letter did not create a "legitimate expectation" for Thunderbird to act, in part because the facts submitted to SEGOB in pursuance of the letter were contradictory to the nature of Thunderbird’s business. The Tribunal further found no violation of National Treatment because the Mexican government actively pursued both non-Mexican and Mexican companies for violation of the gambling laws. The Tribunal also determined that there was no violation of Minimum Standards of Treatment under NAFTA. As a result of these findings, Thunderbird was not entitled to damages and costs were awarded to Mexico.

The dissenting arbitrator, Thomas Wälde, agreed with many components of the majority including jurisdiction, admissibility, and general conditions for a "legitimate expectation" claim. However, the dissent disagreed with how the majority applied the legitimate expectation criteria to this case. Further, the dissent disagreed with the majority’s rejection of the National Treatment claim. The dissent stated that this disagreement was "based on a different weight which needs to be accorded to this principle in the particular context of an investment promotion and protection treaty which protects interests different from those involved in an ordinary commercial relationship involving two equal private parties."

Approximately  74 pages (but appended dissenting opinion of Prof. Wälde 135 pages)

Available at
http://www.naftaclaims.com/Disputes/Mexico/Thunderbird/Thunderbird_Award.pdf

Federal Constitutional Court of Germany: Execution of El Motassadeq’s arrest warrant to be reconsidered by the Higher Regional Court (February 1, 2006)

Click here for the Court’s decision (in German).

The Federal Constitutional Court of Germany (the "Court") remanded the case of El Motassadeq regarding the immediate execution of the arrest warrant to the Higher Regional Court.

In February 2003, the Higher Regional Court of Hamburg ("Higher Regional Court") convicted El Motassadeq of aiding and abetting the murder of over 3,000 people, the victims of the September 11 2001 attacks, and of "membership in a terrorist organization" (Al Quaeda) and sentenced El Motassadeq to 15 years’ imprisonment. After the Federal Court of Justice struck down that judgment and remanded the case, the Higher Regional Court, on several conditions, halted the execution of the arrest warrant in April 2004 and released El Motassadeq from custody. In August 2005, the Higher Regional Court convicted El Motassadeq of membership in a terrorist organization only and accordingly reduced the sentence to seven years of imprisonment, while executing the arrest warrant immediately. El Motassadeq, who has appealed the judgment, also challenged the immediate execution of the warrant. The Federal Constitutional Court held that the reinstatement of the arrest warrant did not stand legal examination under the German Constitution, as it violated the accused’s right to liberty and due process. The Court stipulated that the reinstatement of the arrest warrant during a pending appeal was not permissible, because the sentence pronounced by the Higher Regional Court in August 2005 did not significantly deviate from the expectation of the sentence at the time the warrant was suspended. For this reason, and because El Motassadeq abided by all the conditions imposed, the Court remanded the case, ordering the execution of the arrest warrant to be reconsidered by the Higher Regional Court according to the constitutional standards defined by the Court.

United Kingdom House of Lords: R v. Jones et al (March 29, 2006)

Click here for the decision.

The issue before the House of Lords was "whether the crime of aggression, if established in customary international law, is a crime recognized by or forming part of the domestic criminal law of England and Wales."

Shortly before the US-led invasion of Iraq, people in the United Kingdom protested against that planned invasion. During these protests, some of the demonstrators entered military facilities in order to obstruct military operations. For example, one group of demonstrators trespassed on a military port, where the individuals chained themselves to tanks or reconnaissance vehicles in order to halt the loading of vessels bound for the Middle East. The demonstrators were charged with aggravated trespass or criminal damage. The appeals of 20 individuals were consolidated, as they raised common issues.

In support of their defense, the appellants argued that their conduct was legally justified because they acted in order to "impede, obstruct or disrupt the commission of that crime" of aggression, which they believed the United Kingdom to be committing by participating the invasion of Iraq in March 2003.

In terms of their defense the appellants relied on section 3 of the 1967 Act, which reads:

"(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected

offenders or of persons unlawfully at large.

(2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose."

The appellants therefore submitted that:

• customary international law is part of the domestic law of England and Wales
  
• crimes in customary international law are – without need for any domestic statute or judicial decision - recognized and enforced by the domestic law of England and Wales
  

The Court of Appeal had ruled that the crime of aggression was not a crime in the sense of that provision and therefore excluded that provision as a possible defense.

Lord Bingham of Cornhill dismissed the argument of the Crown that the crime of aggression lacked "the certainty of definition required of any criminal offence", stating that it would be "unhistorical to suppose that the elements of the crime were clear in 1945 but have since become in any way obscure." However, Lord Bingham of Cornhill disagreed with the appellants on the issue of how crimes recognized in customary international law are recognized and enforced by the domestic law of England and Wales in the case where there is no domestic implementation. Lord Bingham of Cornhill also rejected the appellants’ contention that "crime" in section 3 of the 1967 Act covered crimes recognized under customary international law.

Lord Hoffmann stated in his opinion that "[t]here is no doubt that this [the crime of aggression] is a recognised crime in international law." In that respect, he mentioned the decisions of the International Military Tribunal at Nuremberg, and Article 5 of the Rome Statute of the International Criminal Court. However, Lord Hoffmann also concluded that the crime of aggression was not a crime in English domestic law, inter alia because this would contravene the democratic principle, according to which Parliament has to prescribe the conduct which will be regarded as an offence. Lord Hoffmann also stated that, in his view, the conduct of the appellants could not have been justified, even if the crime of aggression were incorporated in domestic law and if the United Kingdom had in fact committed that crime by participating in the invasion of Iraq, because the state holds the monopoly on the use of force.

The appeals were dismissed by a unanimous decision.

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. Sign up for ILIB.