cases of note
Extraordinary
Chambers in the Courts of
Click here for document. (Approximately 20 pages).
The Pre-Trial Chamber in the Extraordinary Chambers
in the Courts of Cambodia (ECCC) refused Nuon Chea’s (the
accused) request to preclude participation by “Civil Parties”
in provisional detention proceedings.
ECCC Internal Rule 23 permits victims to be designated
as “Civil Parties” to permit them to participate in criminal
proceedings against accused persons by supporting the
prosecutor to seek collective and moral reparations. This
must be balanced with ECCC Internal Rule 21(1)(a) which
requires the proceedings to be conducted fairly and in
an adversarial nature to preserve the rights of the parties.
Counsel for the accused contended that the scope of Internal
Rule 23 allowed Civil Parties to participate only at the
merits stage of trials but not in pre-trial proceedings.
By contrast, the international co-prosecutor asserted
that Rule 23 did not limit Civil Parties' participation
to the merits stage, and he cited evolving international
criminal law practice and the Lubanga decision
in the International Criminal Court (ICC), which permitted
a group of victims to participate in a pre-detention appeal.
Counsel for the Civil Parties claimed that they had the
right to participate in the proceedings from their commencement.
On February 12, 2008, the Pre-Trial Chamber issued an
order for the parties and amici curiae to file
briefs on the issue of balancing a fair trial for the
accused with the rights of Civil Parties to participate.
In its analysis the Pre-Trial Chamber examined ECCC internal
rules 21 and 23, Cambodian Procedure and Practice and
international standards. It discussed the United Nations
General Assembly (GA) Resolution 40/34 1985 Declaration
of Basic Principles of Justice for Victims of Crime and
Abuse of Power Principle 6 which endeavors to improve
judicial responsiveness to the needs of victims by allowing
victims’ views and concerns to be considered at “appropriate
stages of the proceedings” without prejudice to the accused.
It examined Article 68(3) of the Rome Statute which substantially
repeats the language of the GA Resolution and allows the
ICC to permit the views of victims to be presented at
“appropriate stages” and in a manner that is not prejudicial
to the rights of the accused. It further weighed Articles
80, 81, and 82 of the Provisional Criminal Procedure Code
of Kosovo which allows injured parties to propose evidence
at all stages of the proceedings. The Pre-Trial Chamber
thus found that to read Internal Rule 23(1) as encompassing
Civil Parties' participation in proceedings of appeals
against detention orders was consistent with international
guidelines and the procedural rules of international criminal
tribunals and must be regarded as generally complying
with fair trial principles.
Click here for document. (Approximately 33 pages).
The United States Court of Appeals for the Second Circuit
(Court) held that a state’s failure to notify a detained
alien of his rights to consular notification and access
pursuant to Article 36(1)(b) of the Vienna Convention
on Consular Relations (Convention) does not create the
basis for a suit under the Alien Tort Statute (ATS), 28
U.S.C. §1350, 42 U.S.C. §1983; or directly under the Convention.
It thus affirmed the District Court’s dismissal of the
complaint.
Plaintiff Ricardo A. De Los Santos Mora is a citizen of
the
In its decision the Court examined the recent United States
Supreme Court decision Medellin v. Texas, 552
U.S. ---, 128 S.Ct. 1346 (2008); in which the Supreme
Court assumed, without deciding, that Article 36 creates
judicially enforceable individual rights. The Court also
examined the split in the Federal Circuits on this issue.
See Cornejo v. County of San Diego, 504 F.3d
853 (9th Cir. 2007) (46 I.L.M. 1160 (2007) holding that
the Article 36 consular notification provision does not
create judicially enforceable rights. See also Jogi
v. Voges, 480 F.3d 822, (7th Cir. 2007) holding that
Article 36 does create individually judicially enforceable
rights.
The Court followed well-established rules of treaty interpretation
and turned to the text of the treaty for guidance on this
issue. It found the fact that the treaty is silent as
to whether individuals may seek redress in domestic court
for violations of Article 36(1)(b) compelling and interpreted
this to mean that the drafters of the Convention did not
mean for it to convey an individual right. The Court also
accorded great weight to the amicus brief that the U.S.
Departments of State and Justice submitted indicating
that they sided with the defendants’ stance not to recognize
an individual right to enforce a violation of Article
36(1)(b) of the Convention in domestic courts.
The Court also discussed the decisions of the International
Court of Justice (ICJ) in Avena and Other Mexican
Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 21);
and LaGrand (F.R.G. v. U.S.), 2001 I.C.J. 466
(June 27); and noted that the U.S. Supreme Court has indicated
that while domestic courts should give “respectful consideration”
of international court’s interpretations of treaties,
they are not bound by them. It thus found the ICJ decisions
not to be dispositive in this case on either the issue
of whether Article 36(1)(b) confers an individual right
for a violation; or whether 42 U.S.C. §1983 does. The
Court turned next to the travaux préparatoires
of the Convention but found that they do not set forth
clear guidance on this issue.
The Court also examined Mora’s claim that the alleged
violation of Article 36(1)(b) for unlawful detention without
being notified that he could contact his consulate was
a tort in violation of the ATS, 28 U.S.C. §1350. The Court
rejected this claim under the standard set forth in Sosa
v. Alvarez-Machain, 542 U.S. 692 (2004) because it
was not specific, nor universal enough. It thus affirmed
the District Court’s dismissal of the complaint.
The
High Court of
Click here for document. (Approximately 73 pages).
In a decision involving the rights to water for poor
residents of the township of Phiri, South Africa, the
High Court (Court) held that the forced installation of
a prepayment water meter system without the option of
an “all available” water supply option was unconstitutional
and unlawful. The Court ordered the City of Johannesburg
to provide each applicant and other similarly situated
residents of Phiri with free basic water supply of 50
liters per person per day, thus setting aside the City’s
decision to limit the water supply to 25 liters per person
per day. The Court required Johannesburg to pay for the
installation of a metered water supply to allow residents
of Phiri that option.
Phiri is a township in Soweto,
Residents of Phiri, Lindiwe Mazibko, Grace Munyai, Jennifer
Makoatsane, Sophia Malekutu, and Vusimuzi Paki (the Applicants),
brought suit against the City of Johannesburg, Johannesburg
Water, the South African Minister of Water Affairs and
Forestry, and the Centre on Housing Rights and Evictions
(the Respondents). The Residents alleged that the Respondent’s
policies and practices of disconnecting their unlimited
water supply at the fixed rate and installing prepayment
meters, and limiting households to 5 kiloliters per month
were unconstitutional. They asked the High Court to declare
National Regulation 3(b) setting the water supply at 6
kilolitres per household per month (25 liters per person)
unconstitutional and invalid and to order the Applicants
and other residents of Phiri 50 litres of water per person
per day with a metered water supply to be installed at
the city’s cost.
Section 27(1) of the South African Constitution guarantees
everyone the right to have access to “sufficient water.”
Section 39(1)(b) of the Constitution requires courts to
consider international law when applying the South African
Bill of Rights, and states a preference for interpreting
legislation consistently with international law.
While the Court noted that in international law there
is no express right to water it nonetheless cites a number
of international conventions providing for an adequate
standard of living such as the Universal Declaration on
Human Rights Article 25; the International Covenant on
Economic, Social, and Cultural Rights (ICESCR) Articles
11 and 12 which calls for the adequate amount of water
to be consistent with World Health Organization (WHO)
guidelines. These specify 25 liters per day per person
as the smallest amount needed to maintain life in the
short term. The Convention on the Rights of the Child
Article 24 on states’ obligation to help children attain
the highest standard of health and to combat disease through
adequate food and drinking water; and its counterpart
in the African Convention on the Rights of the Child.
The African Charter on Human and People’s Rights Article
16 guarantees the right to enjoy the best attainable standard
of mental and physical health. The African Commission
has held that a state’s failure to provide safe drinking
water violates this article. Further, General Comment
15 of the Twenty-Ninth session of the United Nation’s
Committee on Economic and Social Rights emphasizes the
importance of the availability and accessibility of water
and sufficient for personal and domestic use in a discriminatory-free
manner.
The Court held that the Applicants failed to set forth
a case sufficient to set aside Regulation 3(b) because
The
Supreme Court of
Click here for document. (Approximately 50 pages).
The Supreme Court of Israel (Court) upheld the constitutionality
of the Incarceration of Unlawful Combatants law (the Law)
5762-2002 on June 11, 2008, and denied the appellants’
appeals. It was the first constitutional challenge to
the Law to reach the Court.
The Knesset passed the Law in March 2002. It permits “unlawful
combatants” to be detained. It defines an “unlawful combatant”
as being a person who “participated either directly or
indirectly in hostile acts against the State of Israel
or is a member of a force perpetrating hostile acts against
the State of Israel,” to whom Article 4 of the Third Geneva
Conventions regarding prisoners of war status in international
law does not apply.
The case arose out of an appeal by two residents of Gaza
who were detained because of their purported association
with Hezbollah in January 2002 and January 2003. They
claimed that the Law was unconstitutional because it violated
their rights to liberty and dignity in the Israeli Basic
Law and is inconsistent with the rules of international
humanitarian law. The appellants also contested the factual
findings that they were members of Hezbollah and they
claimed that
The Court examined the background of the Law and noted
that a presumption exists to treat a piece of Israeli
legislation as being consistent with international law
norms to which
While the appellants argued that international humanitarian
law does not recognize a separate category of “unlawful
combatant,” the Court noted that it had already addressed
this issue in Public Committee Against Torture in
Israel v. Government of Israel, in which it held
that the term “civilian” subsumed the term “unlawful combatant.”
The Court discussed a number of articles of the Fourth
Geneva Convention and noted that the Convention permits
civilians to be interned but only when “absolutely necessary”
for the security of the detaining power (see
article 42); and only when approved in a judicial or administrative
proceeding and accompanied by at least biannual periodic
reviews to determine the necessity for continued detention
(see article 43). It rejected the appellants’
assertion that the Fourth Geneva Convention should not
apply to them because they were detained in the Gaza strip
rather than in
Because administrative detention is an unusual and extreme
measure and violates the constitutional right to personal
liberty, the Court required the State to demonstrate by
clear and convincing evidence that a sufficient security
threat existed to warrant its use. The Court opined that
there must be more evidence than a single piece from an
isolated event to be enough for the state to show that
even if the detainee did not take a significant direct
or indirect part of the hostilities against the State
of Israel, he nonetheless belonged to a terrorist organization
and participated in the “cycle of hostilities.”
With respect to the appellants’ contention that the Law
violated their right to personal liberty under the Basic
Law, the Court applied the limitations clause of the Basic
Law. That clause permits a law to be violated only if
it benefits the values of the State of Israel, is intended
for a proper purpose, and is not excessive. The Court
held that the Law has a proper purpose because it was
meant to prevent individuals who threaten the security
of the State of Israel from returning to the cycle of
hostilities. To determine whether the Law was proportional
to its violation of human rights the Court applied a three-prong
test whether: 1) the law corresponds to the purpose for
which it was intended; 2) the law violates the constitutional
right as little as possible while still achieving its
goal; and 3) the violation of the constitutional right
is commensurate to the social benefit it achieves. The
Court found the first test to be met because administrative
detention prevents the unlawful combatant from engaging
in hostilities against
The Court thus held that the trial court was justified
in not canceling the internment orders in these cases.
International Criminal Court: Appeals Chamber Judgment on the appeal of Mr. Lubanga Dyilo against the oral decision of Trial Chamber 1 of 18 January 2008 (July 11, 2008)
Click here for document. (Approximately 44 pages).
The Appeals Chamber of the International Criminal Court
(Court) confirmed the decision of the Trial Chamber with
respect to the Prosecution’s duty to disclose information
to the defense. It reversed the Trial Chamber’s decision
regarding the duty of the Prosecutor to disclose information
regarding the general use of child soldiers in the Democratic
Republic of Congo (DRC).
Thomas Lubanga Dyilo (the appellant), the founder and
leader of the Union des patriotes Congolais was arrested
March 17, 2006 and surrendered to the ICC. Pre-Trial Chamber
I confirmed the Prosecutor’s charges against Lubanga Dyilo
on January 29, 2007, which include war crimes of conscripting
and enlisting children under the age of 15 in violation
of the Rome Statute to serve in the Forces Patriotiques
pour la libération du Congo. Trial Chamber I issued an
oral decision January 18, 2008 (the “Impugned Decision”)
on the Prosecution’s request regarding the disclosure
of information to Mr. Lubanga Dyilo before trial. The
defense filed a motion to appeal this decision on January
28, 2008. The prosecutor responded to this motion on February
1, 2008. On March 6, 2008, the Trial Chamber issued its
decision on the defense request for leave to appeal the
oral decision on redactions and disclosure of January
18, 2008. On appeal the Court considered whether: 1) “unnecessary
and unjustified” late disclosure” by the defense of its
case can properly impact upon the prosecution’s disclosure;
2) the Trial Chamber erred when it provided protection
for witnesses for the defense over the defense right to
know the identify of those witnesses and its finding that
this would not harm the fairness of the trial; and 3)
the Trial Chamber’s decision regarding the duty of the
Prosecution to share information regarding the “general
use” of child soldiers in the DRC because it was not exculpatory
violated Rule 77 of the Court.
The appellant argued that the Trial Chamber erred when
it held that late disclosure of the defense case could
justify the prosecution’s partial or whole non-disclosure
of exculpatory material to the defense without harming
the fairness of the trial. He contended that the Prosecution’s
duty of disclosure was unrelated to any action of the
defense. He emphasized that pursuant to Article 54(1)(a)
of the Rome Statute the Prosecutor has a duty to investigate
both incriminating and exonerating evidence. With respect
to the appellant’s right to silence, he maintained that
his right was absolute and should not be read to either
limit the Prosecution’s duties or to prescribe the rights
of the accused.
The Prosecution by contrast, asserted that the defense
misconstrued the Impugned Decision, which emphasized that
the defense’s decision to disclose information to the
Prosecution at a late stage of the proceedings impacts
Prosecution’s ability to locate and reveal information
to the defense in a timely manner. The Prosecutor responded
that the Impugned Decision did not address the right to
silence but rather indicated that there may be consequences
if the defense does not disclose information.
The Appeals Chamber noted that it did not purport to address
the entire disclosure of information regime in this opinion
but that generally the Prosecutor has the duty to make
full disclosure except where the Court Statute and rules
permit otherwise. This duty is not contingent upon that
of the Defense to reveal its case in advance and applies
even when an accused remains silent or does not raise
a defense.
With respect to the third issue on appeal, the duty of
the Prosecution to provide general information regarding
the use of child soldiers in the DRC, the Appeals Chamber
held that the Trial Chamber erred when it ordered that
the Prosecutor is not under an obligation to serve material
that relates to the general use of child soldiers in the
DRC. The Appeals Chamber held that the non-disclosure
order was erroneous because it was based on an interpretation
of rule 77 on procedure and evidence that was too narrow.
Rule 77 requires the Prosecutor to permit the Defense
to inspect any books, documents, photographs, or other
tangible evidence in the possession or control of the
Prosecutor that are “material to the preparation of the
defense.” While the Trial Chamber did not explicitly cite
to Rule 77, it held that only material that related to
issues that would either directly undercut the Prosecution’s
case or support the Defense argument was “material to
the preparation of the defense.” The Appeals Chamber held
that this definition was overly narrow because it would
exclude objects which, though not tied directly to exonerating
or incriminating evidence may nonetheless be material
to the preparation of the defense case. Because rule 77
is based upon rule 66(B) of the rules of procedure and
evidence of the ICTY, the Appeals Chamber examined jurisprudence
of the ICTY and ICTR which supports the conclusion that
rule 77 must be interpreted broadly.
Click here for document. (Approximately 28 pages).
The United States Court of Appeals for the Eleventh
Circuit (Court) affirmed the decision of the District
Court denying the petition of Gareth Baran for return
of his son to
Gareth Baran is an Australian citizen. He and Susan Beaty,
A U.S. citizen from Alabama lived together and had a son,
Samuel, in March 2006. After sustaining injuries in an
automobile accident Baran was unable to work. Beaty cared
for him and Samuel. Baran became depressed and began drinking
heavily and regularly threatened and beat Beaty. On August
20, 2006, Beaty took Samuel and fled to Alabama. On September
21, 2006 Baran applied for a return of Samuel pursuant
to the Hague Convention on the Civil Aspects of International
Child Abduction (the Convention), and he filed a petition
in federal District court seeking Samuel’s return February
16, 2007. The District Court held on March 28, 2007, that
although Beaty had wrongfully removed Samuel from Australia
without Baran’s permission, Samuel risked grave harm if
he were returned to Australia to be with his father (see
Baran v. Beaty, 479 F.Supp. 2d 1257 (S.D. Ala. 2007).
Baran appealed.
The
These synopses were provided by the Managing Editors of International Legal Materials and International Law in Brief.