EnCana v. Republic of Ecuador, London Court of International Arbitration (3 February 2006)

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The arbitration panel determined that Ecuador had not breached the provisions of the Bilateral Investment Treaty (BIT) with Canada in failing to refund value-added taxes (“VAT”) to EnCana, a Canadian company. 

Pursuant to the laws of Ecuador, manufacturers could seek a VAT refund paid on goods produced in Ecuador for export. Two Canadian subsidiary oil companies, who had contracts with the Ecuadorian state oil agency for the exploration and exploitation of oil and gas within the territory of Ecuador, initiated arbitration proceedings pursuant to the UNCITRAL rules for a refund of the VAT. The two companies argued that prior to a change in the laws, they had been entitled to the VAT.  The Ecuadorian government argued, however, that the VAT only applied to manufacturing companies and that oil companies did not qualify as manufacturers.  The Ecuadorian government further argued that the oil companies were already receiving the equivalent of a VAT refund because the contracts the oil companies negotiated with Ecuador were supposed to include all costs.

The arbitration panel held that EnCana’s claims, except for those made under Article VIII (expropriation) of the BIT, were outside of the jurisdiction of the tribunal.  The panel rejected the claim regarding indirect expropriation unanimously. On the claim of direct expropriation, the panel was split. The majority held that Ecuador had not breached its obligations under the BIT. In that respect, Mr. Horacio Grigera Naón appended a dissenting opinion. Ecuador was responsible for reimbursing EnCana for the deposit in the amount of $330,267.44. Otherwise, each party was required to bear its own costs. 

Members of the Tribunal:
Professor James Crawford, President
Mr. Horacio Grigera Naón
Mr. Christopher Thomas

European Court of Human Rights (ECHR): Evans v. The United Kingdom (March 7, 2005)

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The European Court of Human Rights (the “Court”) held that there had been no violation of Article 2 (right to life), Article 8 (right to respect for private and family life), or Article 14 (prohibition of discrimination) of the European Convention on Human Rights (“the Convention”).

Ms. Evans (the “applicant”) and her partner J started fertility treatment at the Bath Assisted Conception Clinic, when the applicant was diagnosed with a pre-cancerous condition of her ovaries. She was offered one cycle of in vitro fertilization treatment prior to the surgical removal of her ovaries. The applicant and her partner J were informed that they would each need to sign a form consenting to the treatment and that, in accordance with the provisions of the Human Fertilisation and Embryology Act 1990, it would be possible for either of them to withdraw his or her consent at any time before the embryos were implanted in the applicant’s uterus. The applicant considered whether she should explore other means of having her remaining eggs fertilized, to guard against the possibility of her relationship with J ending. J reassured her that that would not happen. After the creation of six embryos the applicant had her ovaries removed. The relationship between the applicant and her partner ended two years later, and he withdrew his consent to the continued storage or implantation of the embryo. The applicant then brought proceedings in the UK courts against J in order to have his consent restored. The courts, however, finding that he had acted in good faith, refused to grant the applicant’s request. Before the Court the applicant asserted that requiring the father’s consent to the implantation of the embryo was a violation of her rights under Articles 8 and 14 of the Convention, inter alia because the embryos created with her eggs and J’s sperm represented her only chance to have a child to whom she was biologically related. She also claimed that the rights of the embryos under Article 2 of the Convention were violated.

Reiterating “that, in the absence of any European consensus on the scientific and legal definition of the beginning of life, the issue of when the right to life begins comes within the margin of appreciation” of each signatory state, the Court held that there had been no violation of the right to life, as an embryo did not have independent rights or interests under UK law and could therefore not claim a right to life under Article 2 of the Convention. In terms of a violation of Article 8 of the Convention, the Court accepted “that a different balance might have been struck by Parliament, by, for instance, making the consent of the male donor irrevocable or by drawing the “bright-line” at the point of creation of the embryo.” The Court then pointed out that the issue was whether the UK Parliament had “exceeded the margin of appreciation afforded to it under that Article.” In determining that question, the Court noted that the UK was not the only state to allow the revocation of consent at any stage up until the point of implantation of the embryo, and it also noted that “a similar emphasis on the primacy of consent [is] reflected in the relevant international instruments concerned with medical interventions.” The Court therefore concluded that “the United Kingdom did not exceed the margin of appreciation afforded to it or upset the fair balance required under Article 8 of the Convention.” With respect to a violation of Article 14 of the Convention the Court held that “the reasons given for finding that there was no violation of Article 8 also afford a reasonable and objective justification under Article 14.”

International Criminal Tribunal for Rwanda (ICTR): Prosecutor v. Bisengimana (April 13, 2006)

The decision is available here.

The International Criminal Tribunal for Rwanda (the “Tribunal”) found Paul Bisengimana guilty of murder, extermination, and crimes against humanity for his complicity in attacks on individuals at Ruhanga Protestant Church and School.

The Tribunal found that his involvement was not necessarily direct in nature, but that his presence during the attacks combined with his failure to stop them and his stature in the area as the bourgmestre were enough to encourage others to take part in the attacks. Bisengimana entered into a plea agreement whereby he plead guilty to the above crimes.  The Tribunal still endeavored, however, to undertake a description of the elements of the crimes and the facts of the events to demonstrate why Bisengimana is guilty.  The Chamber found that the attack at Musha Church was extermination because it was “launched against Tutsi civilians on discriminatory grounds, was widespread and resulted in a large number of victims…”  The Chamber further found that Mr. Bisengimana was responsible for another set of attacks at Ruhanga Protestant Church even though he was not present because he had reason to know of the attacks and he did not takes steps required of him to protect the people.  The Tribunal considered several mitigating circumstances including Bisengimana’s guilty plea, good conduct in detention, genuine desire to apologize and assist in the process, and his family situation.  The Chamber sentenced him to 15 years imprisonment with credit for time already served.

International Criminal Tribunal for the Former Yugoslavia (ICTY) (Appeals Chamber): Prosecutor v. Mladen Naletilic, a.k.a.  “Tuta” and Vinko Martinovic, a.k.a. “Stela” (May 3. 2006)

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Naletilic and Martinovic lodged individual Notices of Appeal on 29 April 2003 and the Prosecution on 2 May 2003 based on Case No. IT-98-34-T (31 March 2003) [hereinafter “Trial Judgment”], where Naletilic was convicted of 8 of 17 counts and sentenced to 20 years and Martinovic was convicted of 9 of 17 counts and sentenced to 18 years.  They appealed their convictions and sentences on the basis that the Trial Chamber committed errors of both law and fact.  The Appeals Chamber identified common issues of the appeals and addressed these under: “Errors Alleged by Naletilic and Martinovic Concerning Denial of Due Process of Law”, “Error Alleged by Naletilic and Martinovic Concerning the International Character of the Armed Conflict”, and “Appeals from Sentence”.

The first ground of appeal is that the Indictments were too vague.  According to the Appeals Chamber “Whether an indictment is pleaded with sufficient particularity depends on whether it sets out the material facts of the case with enough detail to inform an accused clearly of the charges against them so that they may prepare a defence”.  The Appeals Chamber found that although the Indictment failed to plead “material facts” in relation to the charges for most of the incidents, the Prosecution cured these defects by providing timely, clear and consistent information, except in three incidents.  Therefore, the Trial Chamber erred in finding Martinovic responsible for three incidents.  The Appeals Chamber dismissed Naletilic’s appeal.

The second ground of appeal is that the Trial Chamber erred by holding that an international armed conflict existed during the period in the area relevant to the Indictment, and therefore, erred in finding them guilty of violating the Geneva Conventions.  Specifically, they argued that the evidence presented was unreliable and that they could not be held responsible for the character of the armed conflict.  The Appeals Chamber found that the claims concerning the unreliability of the evidence were limited to a mere assertion and insufficiently precise.  The Appeals Chamber also addressed whether the Trial Chamber erred in failing to require the Prosecution to prove, as an element of the crimes under Article 2, that they were aware of the international character of the conflict.  The Appeals Chamber found that the existence and international character of an armed conflict are jurisdictional pre-requisites, as established in Tadic, and substantive elements of crimes under Article 2.  The Appeals Chamber held that their argument mischaracterized the Trial Chamber’s findings in that they were not found responsible for the fact that the conflict was international, but rather for the crimes committed in the context of the international armed conflict.  The Appeals Chamber also held that “the principle of individual guilt requires that the accused’s awareness of factual circumstances establishing the armed conflict’s international character must be proven by the Prosecution”.  The Trial Chamber erred in law in failing to so find explicitly.  However, a reasonable trier of fact could only have found that they were aware of the factual circumstances on which the Trial Chamber relied.

The third ground of appeal related to alleged errors in the Trial Judgment.  Naletilic challenged the finding that during the period of the Indictment he was the overall commander of the KB and attached ATG units, thus making him responsible under the superior-subordinate relationship provision of Article 7(3).  The Appeals Chamber found that with the exception of two instances the Trial Chamber’s reliance on exhibits to show that Naletilic was the overall commander was not an error.  Martinovic submitted that the Trial Chamber erred in finding him responsible for unlawful labor under Article 7(3) for using detainees to assist in looting of property.  The Appeals Chamber found that although testimony by one witness was insufficient to hold Martinovic responsible, reliance on other witnesses negated any miscarriage of justice.  Martinovic also challenged the cumulative convictions imposed for the same acts, because they caused him prejudice.  The Appeals Chamber upheld the jurisprudence of the ICTY that “multiple convictions serve to describe the full culpability of a particular accused or provide a complete picture of his criminal conduct”.

Martinovic and Naletilic also appealed the sentencing determination.  The Appeals Chamber found that the Trial Chamber erred in failing to consider, as a mitigating factor, that Martinovic facilitated his transfer to the Hague and waived his right to an appeal to speed extradition, and in not considering Martinovic’s treatment and help of BH Muslims as a mitigating circumstance.  The Appeals Chamber found that under Article 7(1) the Trial Chamber has the discretion to find that a position of authority can be an aggravating circumstance.  However, based on the facts, the Appeals Chamber set aside a few of the convictions, but found the sentences for the other convictions were “within the range that a reasonable Trial Chamber could have ordered”.

International Criminal Tribunal for the Former Yugoslavia (ICTY): Prosecutor v. Ivica Rajic, a.k.a Viktor Andric (May 8, 2006)

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 The Trial Chamber of the ICTY (the “Trial Chamber”) sentenced Ivica Rajic, a.k.a Viktor Andric to 12 (twelve) years of imprisonment with 1130 days credit for time spent in custody.

Ivica Rajic, the Defendant, was a Captain (first class) in the former Yugoslav People’s Army and Commander of the Second Operational Group of the HVO, based in Kiseljak in northern Bosnia and Herzegovina (BiH).  Rajic was indicted on 10 counts for actions against Bosnian Muslims during the war in violation of the Geneva Conventions of 1949.  Under a plea agreement, Rajic pleaded guilty to 4 of 10 original counts from the indictment.  The counts he plead guilty to were: Count 1: Willful Killing (Article 2(a) of the Statute of the ICTY, Count 3: Inhuman Treatment (Article 2(b) of the Statute of the ICTY), Count 7: Appropriation of Property (Article 2 (d) of the Statute of the ICTY), and Count 9: Extensive destruction not justified by military necessity and carried out unlawfully and wantonly (Article 2 (d) of the Statute of the ICTY).

The issue before the Trial Chamber was what sentence to impose upon Rajic based on his admission of guilt under the Plea Agreement.  In determining the appropriate penalty, the Trial Chamber relied upon Articles 24 (Penalties), Article 27 (Enforcement of Sentences), Article 100 (Sentencing Procedure on a Guilty Plea), and Article 101 (Penalties) of the Statute of the ICTY.  As such, in determining the sentence, the Trial Chamber had to take into account the following factors: “the gravity of the crime; the individual circumstances of the convicted person; any aggravating circumstances; any mitigating circumstances; and the general practice regarding prison sentences in the courts of the former Yugoslavia”.  The trial Chamber held that although the gravity of the crimes was high and Rajic was in a supervisory role, these had to be tempered in determining an appropriate sentence with the mitigating circumstances.  These include: the plea agreement entered into by Rajic; his remorse, which the prosecution did not refute; his cooperation with the prosecution; and Rajic’s personal circumstances and fact that he had been an exemplary soldier and respected member of the community prior to the war.  In setting the punishment, the Trial Chamber was also guided by the general practice regarding prison sentences in the courts of the former Yugoslavia under Article 24 of the Statute of the ICTY and Rule 101(b) of the Rules.  The Trial Chamber determined that the punishment prescribed ranged from 5-20 years imprisonment or the death penalty.  However, as Yugoslavia had abolished the death penalty 20 years ago and replaced it with a prison term of 20-40 years the Trial Chamber had a range of 5-40 years within which to work.  This was narrowed to 12-15 years which the Defense and Prosecutor sought respectively.  After weighing all of the factors the Trial Chamber came to a sentence of 12 (twelve) years for his crimes.

United States Court of Appeals for the District of Columbia Circuit: Gonzales-Vera et al. v. Kissinger (June 9, 2006)

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The plaintiffs allege to have been the victims of human rights violations perpetrated by the Chilean military junta which came to power through a coup d’etat in September of 1973. They claim that the Chilean Directorate of National Intelligence, which was responsible for the violations, was “funded, assisted…aided and abetted” by the United States and/ or Henry A. Kissinger. For this reason they brought suit in the US courts against Henry A. Kissinger, former National Security Advisor and Secretary of State. Suing under the Alien Tort Claims Act and the Torture Victim Protection Act, the appellants sought relief for, inter alia, torture, false imprisonment, wrongful death, and intentional infliction of emotional distress.

The Court of Appeals affirmed the decision of the District Court, albeit for different reasons. The District Court held that the claims did not fall under the political question doctrine, but dismissed the suit because of, inter alia, sovereign immunity. The Court of Appeals dismissed the claim on grounds of the political question doctrine. Rejecting the plaintiffs’ claim that Kissinger acted ultra vires, the Court of Appeals held that the plaintiffs called “into question foreign policy decisions textually committed to the political branches.”

United Kingdom House of Lords: Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) and others (June 14, 2006)

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The issue before the House of Lords was whether the Courts of the United Kingdom had jurisdiction to entertain claims of alleged torture against the Kingdom of Saudi Arabia (the “Kingdom”) and its officials. The claimants allege to have suffered systematic torture in Saudi Arabia and brought suit in the courts of the United Kingdom against the Ministry of Interior of Saudi Arabia and various state officials.

Lord Bingham of Cornhill noted that on a plain reading of the United Kingdom State Immunity Act 1978 (the “Act”), the Kingdom would be able to plead immunity and the plaintiffs’ claims would therefore have to be dismissed, as no exception of the Act applied. The plaintiffs argued that this “plain reading” would contravene their well-established right under Article 6 I of the European Convention on Human Rights (right to a fair trial). Also, they submitted that granting the Kingdom immunity would violate a jus cogens norm, according to which “the practice of torture should be suppressed and the victims of torture compensated.” Lord Bingham of Cornhill discussed the decision of the Grand Chamber of the European Court of Human Rights in Al-Adsani, in which the Grand Chamber ruled by a slim majority that it was not contrary to the Convention to grant sovereign immunity to a state and its officials where damages are sought in civil proceedings for torture. Granting sovereign immunity was justified by the legitimate aim of pursuing “comity and good relations between states.” Lord Bingham of Cornhill then reiterated the four main arguments advanced by the Kingdom, with which he agreed. The Kingdom claimed that the appeals had to be dismissed because:

• a serving foreign minister is immune from suit rationae personae,
• the Torture Convention does not grant universal civil jurisdiction,
• the UN Immunity Convention of 2004 does not provide for an exception of immunity in cases of civil claims for torture, and
• there is no evidence that states have agreed to pursue violations of peremptory norms of international law.

The Lords dismissed the claimants’ appeals by a unanimous decision.

Briefly Noted
European Court of Justice: European Parliament v. Council of the European Union (May 30, 2006)

The decision is available here.

The European Court of Justice ruled that the European Union had gone too far in agreeing to provide airline passenger data to the U.S. Government on U.S.-bound flights.

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.