International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
Jul/Aug 2007, Volume 2, Issue 2

cases of note

United States Supreme Court:  Permanent Mission of India to the United Nations v. New York (14 June 2007)

Click here for document.  (Approximately 10 pages) Justice Thomas delivered the opinion of the Court in which Chief Justice Roberts, and Justices Scalia, Kennedy Souter, Ginsburg, and Alito, joined.  Justice Stevens filed a dissenting opinion in which Justice Breyer joined.

The Supreme Court held that the Foreign Sovereign Immunities Act (FSIA) 28 U.S.C. §1602 et seq., does not immunize a foreign sovereign from suit to determine the legitimacy of tax liens on property it owns to house its employees.

The Permanent Mission of India to the United Nations (UN) contains diplomatic office space and approximately twenty floors of rent-free housing for employees and their families in New York City. Likewise, the Ministry for Foreign Affairs of the People’s Republic of Mongolia is located in a six-story building in New York with a portion of the building providing housing for Ministry staff and their families.  New York law exempts property from taxation if it is used “exclusively” for diplomatic offices or for the residence of ambassadors or plenipotentiaries to the United Nations.  See N.Y. Real Prop. Tax Law Ann. §418.  In other circumstances, only the portion of the property used for offices or ambassadorial residences will be considered to have tax-exempt status.  India and Mongolia refused to pay taxes on the portions of its mission housing lower level employees.  New York converted the unpaid taxes into tax liens worth about $16.4 million unpaid property taxes and interest for India, and $2.1 million for Mongolia.  On April 2, 2003, New York brought suit in state court seeking declaratory judgments to establish the validity of the tax liens.  India and Mongolia (the Petitioners) removed the case to federal court and contended that they were immune from suit pursuant to 28 U.S.C. §1604, FSIA’s general immunity provision for foreign governments.  The district court disagreed, holding that 28 U.S.C. §1605(a)(4), FSIA’s “immovable property” exception, which pierces a foreign state’s immunity where rights in immovable property located in the U.S. are at issue, applied to the case.  A unanimous panel of the Court of Appeals for the Second Circuit affirmed, holding that the district court possessed jurisdiction to hear New York’s case.  The Supreme Court affirmed.

Petitioners argued that the immovable property exception in §1605(a)(4) limited suits to those involving property ownership or possession.  By contrast, New York contended that the exception also applied to other rights including tax liens. In its reasoning the Supreme Court examined the plain language of the immovable property exception and noted that it is not specifically limited to cases involving title, ownership, or possession of property, but rather also includes “rights in” property.  It next examined whether an action to declare the validity of a tax lien places rights in immovable property at issue.  Reasoning that a tax lien restricts one of the fundamental rights of property ownership, the ability to convey, the Court held that a suit to establish the validity of a tax lien implicates “rights in immovable property.”

In his dissent, Justice Stevens stated that because none of the seven exceptions to FSIA addresses suits to establish the tax liability of a foreign sovereign, in his view, the FSIA general rule of immunity should bar this suit.  Moreover, he opined, it is very unlikely that the drafters of the FSIA meant to pierce the sovereign immunity to provide a remedy against delinquent taxpayers.

United States Fourth Circuit:  Al-Marri v. Wright, (11 June 2007)

Click here for document.  (Majority decision approximately 76 pages, dissent approximately 10).

The Fourth Circuit Court of Appeals held that the Military Commissions Act of 2006 (MCA) does not apply to Ali Saleh Kahlah al-Marri (al-Marri).  It reversed the decision of the district court below it dismissing al-Marri’s habeas corpus petition, and remanded the case with instructions for the district court to issue a writ of habeas corpus directing the Secretary of Defense to release al-Marri from military custody within a “reasonable period of time.”  The court stated “[t]he Government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with grand jury proceedings, or detain him for a limited time pursuant to the Patriot Act.  But Military detention of al-Marri must cease.”

Al-Marri entered the U.S. with his family lawfully on September 10, 2001 to begin master’s degree studies at Bradley University in Peoria, Illinois.  FBI agents arrested him there on December 12, 2001, as a material witness to the September 11 attacks.  The case has a convoluted procedural history.  On June 23, 2003, President George W. Bush issued an order stating that he “determined” that al-Marri was an enemy combatant, closely allied with al-Qaeda, and engaged in conduct that constituted hostile and war-like acts, including international terrorism; and represented a continuing grave national security threat to the U.S.  The President ordered al-Marri to be transferred to the Secretary of Defense for detention as an “enemy combatant.”  The military moved al-Marri to a Naval Brig in South Carolina where it held him for sixteen months without access to counsel or contact with his family.

In July 2004, al-Marri’s counsel filed a habeas corpus petition on his behalf.  In reply, the government cited the declaration of Jeffrey N. Rapp (Rapp declaration), Director of the Joint Intelligence Task Force for Combating Terrorism, stating that al-Marri was closely affiliated with al Qaeda and trained at an al Qaeda training camp and was preparing for international terrorism designed “to cause injury or adverse effects in the U.S.”  Al-Marri replied that he was not an enemy combatant and moved for summary judgment.  A district court judge denied the motion and referred the case to a magistrate for consideration in light of Hamdi v. Rumsfeld, 542 U.S. 507 (2004).  The magistrate held that the Rapp declaration provided al-Marri with sufficient notice of the grounds for his detention and ordered him to file rebuttal evidence.  Al-Marri replied by denying the government’s allegation.  He did not submit rebuttal evidence however, because he claimed that the government bore the burden of showing that he was an enemy combatant and the Rapp declaration was insufficient to demonstrate this.  The magistrate judge held, and the district court concurred, that al-Marri failed to rebut the allegations in the Rapp declaration, and dismissed al-Mari’s habeas petition.  Al Marri appealed to the Fourth circuit, which reversed.

In its analysis the Fourth Circuit concluded that the language and legislative history of the MCA make clear that Congress did not intend for people such as al-Marri, who the government captured and detained within the U.S., to fall within the ambit of the habeas stripping provisions of the MCA.  Moreover, the court was not swayed by the government’s argument that the Authorization for Use of Military Force (AUMF), Pub. L.107-40, 115 Stat. 224 (2001), permitted the President to order the military to seize and detain al-Marri as an enemy combatant.  It examined Hamdi v. Rumseld, 542 U.S. 507 (200)(plurality); and Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005), and opined that neither case compelled the conclusion that the AUMF authorized the President to detain al-Marri as an enemy combatant.  The Fourth Circuit also refuted the Government’s argument that the President possesses “inherent constitutional authority” to order the military to seize and detain al-Marri.  While the Patriot Act provides the President with broad authority to handle “terrorist aliens,” §412 it permits only their short-term detention by civilian authorities.   In addition, the court noted, al-Marri is a citizen of Qatar, a nation with which the U.S. is not at war, and he entered the U.S. legally.

International Criminal Court: Prosecutor Opens Investigation in Central African Republic (22 May 2007)

Click here for more information.

Luis Moreno-Ocampo, Prosecutor of the International Criminal Court (Prosecutor), announced the decision to open an investigation into alleged crimes in the Central African Republic (CAR).  The decision was made based on the gravity of the alleged crimes, which include “killings and large-scale sexual crimes.”  The investigation—the Court’s fourth—was opened in accordance with Article 53 of the Rome Statute of the International Criminal Court.   

The CAR Government referred the situation to the Office of the Prosecutor (OTP) on 22 December 2004.  The Central African authorities provided information regarding proceedings held by the national judiciary and allegations of crimes, which were also reported by NGOs and international organizations.  The OTP also conducted its own mission to Bangui in November 2005.  Based on the information available, the Prosecutor concluded that the jurisdiction, admissibility, and interests of justice requirements of the Rome Statute were satisfied such that an investigation is appropriate.

The Prosecutor’s investigation will focus on the most serious crimes, including killing, looting and rape, which mainly occurred “during a peak of violence in 2002-03.”  The numerous allegations of rape and other acts of sexual violence are particularly notable and, according to the Prosecutor’s statement, these alleged crimes will be a focus of the investigation.

The Prosecutor’s investigation will cover crimes committed after July 1, 2002, when the ICC Statute entered into force.  Additionally, the Prosecutor will focus on “individuals bearing the greatest responsibility for the most serious crimes.”  Currently, “the investigation is not directed at a particular suspect.”  The OTP will also continue to closely monitor allegations of crimes committed since the end of 2005 when violence again erupted in parts of CAR’s territory.

High Court of Malawi:  Kafantayeni v. Attorney General (27 April 2007)

Click here for document (Approximately 11 pages).

In a unanimous decision, the High Court of Malawi held that the mandatory death penalty for murder is unconstitutional and amounts to inhuman treatment; and the imposition of the mandatory death penalty denies an accused the right to have his sentence reviewed by a higher court and thus violates the right to a fair trial.

Francis Kafantayeni was tried and convicted on August 11, 2002, of  killing his two-year old stepson by tying him up and setting him on fire.  Kafantayeni admitted that he committed the act, but claimed that he had been rendered temporarily insane by smoking hemp.  The court sentenced him to death pursuant to section 210 of the Malawi Penal Code, which requires the imposition of the death penalty for murder convictions.  In September 2005 Kafantayeni brought suit seeking to have the High Court of Malawi declare the mandatory death penalty for murder unconstitutional.  In 2006, several others sentenced pursuant to the mandatory death penalty for murder joined his suit (“the plaintiffs”).  During the hearing 30 October 2006, the state declined to advocate any position but “took a neutral stance.”  The plaintiffs argued that the mandatory death penalty was unconstitutional for four reasons:  1) it violates section 16 of the Constitution on the right to life and is arbitrary because it is imposed without consideration of the circumstances of the crime; 2) it violates section 19(3) of the Constitution prohibiting torture or cruel, inhuman and degrading treatment; 3) it violates section 42(2)(f) of the Constitution on the right to a fair trial because it prohibits judicial discretion in sentencing; and 4) it violates the Constitutional principle of separation of powers.

In its analysis, the High Court emphasized that the issue before it concerned only the mandatory imposition of the death penalty for murder, and not the death penalty generally.  The court cited the case of Reyes v. The Queen [2002], a Belizean case, as the leading authority on the issue of the constitutionality of the mandatory death penalty.  The court noted that the constitutional language at issue in Reyes was similar to that in Article 19 of the Malawi Constitution.  The court reached a unanimous decision on two of the grounds articulated by the plaintiffs:  1) right of every person not to be subjected to inhuman and degrading treatment in section 19; and 2) the right to a fair trial pursuant to section 42(2).  The court did not address the other two grounds that plaintiffs urged it to consider.  The court highlighted the importance of proportionality in sentencing in considering whether a sentence is inhuman.  With respect to the plaintiffs’ argument that the mandatory sentencing violated the Constitutional guarantee of a fair trial, the court noted that such notions of fairness also apply to the sentencing phase of a trial.  Malawi is a state party to the International Covenant on Civil and Political Rights (ICCPR), which provides the right to a fair trial in Article 14(5).  The court stated that Malawi courts must “have regard” to the provisions of the ICCPR in interpreting the Malawi Constitution.  The court set aside the death sentences imposed upon each of the plaintiffs and ordered that they be brought before the High Court for a judge to impose a sentence without the mandatory sentencing rule.

International Court of Justice (ICJ):  Bosnia and Herzegovina v. Serbia and Montenegro (February 26, 2007).

Click here for document.  (Approximately 160 pages).

The International Court of Justice (ICJ) by a vote of ten to five held that it has jurisdiction to hear the dispute based upon Article IX of the Convention on the Prevention of the Crime of Genocide.  By a vote of thirteen to two, it found that Serbia has not committed genocide in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, and it held that Serbia neither conspired to commit genocide nor incited the commission of genocide.  By a vote of twelve votes to three, the ICJ found that Serbia has violated its obligation to prevent genocide pursuant to Article I of the Genocide Convention, with respect to the genocide that occurred in Srebrenica in July 1995.  The court further found that Serbia has violated its obligations under the Genocide Convention for failing to transfer Ratko Mladic for trial at the International Criminal Tribunal for the Former Yugoslavia (ICTY).  By a vote of thirteen votes to two, the court found that Serbia had failed to comply with the court’s order for provisional measures of 8 April and 13 September 1993 to take all actions within its power to prevent genocide in Srebrenica in July 1995.

In its reasoning, the court emphasized that allegations of the crime of genocide must be proved by conclusive evidence.  While the court does find that there were considerable numbers of people killed in Bosnia and Herzegovina, it nevertheless remains unconvinced that the a critical element of the Genocide Convention, Article II, specific intent to destroy, in whole or in part, the group of Bosnian Muslims, was present. 

The court examines the specific circumstances of the massacre at Srebrenica, including the fact that the International Criminal Tribunal for the former Yugoslavia found in the Krstic and Blagojevic cases that Bosnian Serbs soldiers killed over 7,000 men there in July 1995.  The court finds that acts of genocide occurred at Srebrenica and that the army of the Republic Srpska possessed the specific intent to destroy in whole or in part the Bosnian Muslims of Srebrenica, but that those acts cannot be legally attributed to Serbia under international principles of state responsibility.  Further, the court finds that the massacre did not take place at the direction of Serbia.  The court does find however, that Serbia did exercise influence over the Bosnian Serbs who carried out the genocide at Srebrenica, and must have been aware of the risk of genocide there.  For that reason, the court finds that Serbia failed to prevent the Srebrenica massacres, thus violating its responsibility under the Genocide Convention Article I.  While Bosnia and Herzegovina requested reparations, the court finds that that this was not the appropriate remedy.  It recommends that a declaration be made that Serbia failed to comply with the Genocide Convention and must cooperate with the ICTY by sending those accused of accused of genocide to the tribunal.

European Court of Human Rights:  Ivanova v. Bulgaria (12 April 2007)

Click here for document.   (Approximately 15  pages).

The European Court of Human Rights (ECHR) held unanimously that there had been a violation of Article 9 of the European Convention “right to religion”, that there was no reason to examine the complaint under Article 14 of the Convention separately, and ordered Bulgaria to pay the applicant 589.23 Euros in pecuniary damage; 4,000 Euros in non-pecuniary damage; 2,500 Euros in costs and expenses, tax (all of which is to be converted into Bulgarian levs).

Bulgaria’s Persons and Family Act of 1994 required non-profit organizations with religious affiliations to register with the Council of Ministers.  Of the over one-hundred organizations that requested to register, twenty-three were denied.  The organizations that were not permitted to register were prohibited from signing contracts in the name of the entity, opening bank accounts, and denied tax benefits.  One such group was “Word of Life”, a Christian Evangelical group.  Word of Life adherents began meeting secretly and the Bulgarian police disrupted the meetings.  Kalinka Todorova Ivanova was a mechanical engineer and a follower of Word of Life who was employed on a temporary basis at the River Shipbuilding and Navigation School in Ruse.  The School had received public and media criticism for employing members of Word of Life, as a result of which the Bulgarian Regional Prosecutor’s Office and National Security Service began investigating the religious activities of the School’s employees.  In November 1995 the Educational Inspector asked Ivanova to resign.  She refused, and on 28 December 1995 she was dismissed, ostensibly for failing to meet the necessary educational and professional qualifications for her post as “swimming pool manager.”  Ivanova exhausted domestic remedies in Bulgaria, by bringing suit and appealing to the Ruse District Court, the Ruse Regional Court in June 1997, and finally the Supreme Court of Cassation, all of which also dismissed her claims.  Ivanova then applied to the ECHR alleging that she had been fired from her job because of her religious beliefs and this violated her Article 9 right to freedom of religion.  Bulgaria asserted that her complaint was unfounded and that her dismissal was not because of her religious beliefs.

In its analysis the ECHR emphasized that the freedom of thought, conscience, and religion is one of the foundations of a democratic society.  After examining the facts, it found that Ivanova was fired because of her religious beliefs and affiliation with Word of Life, and this constituted a violation of her right to freedom of religion.  It discussed that there was a general intolerance by the Bulgarian authorities for Word of Life during the applicable time period.  While Ivanova had also brought suit pursuant to Article 14 of the Convention for discrimination, the court stated that her complaint repeats her complaints under Article 9 and thus did not need to review it separately.

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

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