International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
September 2008 Issue

cases of note

Extraordinary Chambers in the Courts of Cambodia: Decision on Civil Party Participation in Provisional Detention Appeals (March 20, 2008)

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.

United States: Mora v. New York (2d Cir. April 24, 2008)

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 Dominican Republic. Police arrested him in 1991 for attempted robbery. He claimed that he did not speak English and the police did not speak Spanish at the time of his arrest. He alleged that the defendants interrogated him without an interpreter and never informed him that he could contact his consulate. The court appointed him an attorney who also did not speak Spanish. The court sentenced him to six months incarceration and five years of probation. Mora filed a complaint December 5, 2005 against the New York City police department and the Queens District Attorney pursuant to the ATS, alleging that they violated Article 36 of the Convention by failing to notify him that he could contact his consulate. He sought damages of $1 million. The District Court dismissed December 30, 2005, holding that Article 36 does not create individual rights enforceable in domestic courts. Mora appealed contending that the consular notification requirement of Article 36 created individual rights that could be enforced through the ATS, 42 U.S.C. §1983; and an implied private right of action under the Convention.

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 South Africa: Mazibuko and The City of Johannesburg (April 30, 2008)

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, South Africa with an antiquated water pipe system and a population of principally poor, uneducated, unemployed residents many of whom are living with HIV/AIDs. Before 2001 the City of Johannesburg provided all of its residents except those living in Phiri an unlimited supply of water on credit; while Phiri residents could obtain their water at a flat rate. After 2001 while the city of Johannesburg provided residents with 6 kiloliters of free water per month Phiri residents had to prepay for their 6 kiloliters of water. In 2004 the City installed prepayment water meters in Phiri to try to save water and renovate the infrastructure.

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 South Africa is a scare water country and the 25 liters per person per day is a minimum rather than a maximum level, which the government should increase as the nation becomes able. With respect to the prepayment meters the Court examined Article 21 of the Water Services Act which provides that every water services authority, such as the City of Johannesburg, must set forth by-laws regarding the provision of water services. After examining the by-laws for Johannesburg and finding that the by-laws do not authorize the installation of prepayment meters, the Court found that the prepayment met ers that the Respondents installed were ultra vires are thus unconstitutional and unlawful. In its analysis the Court emphasized that the residents of Phiri are treated differently and worse than white residents of other parts of the city that received notice and an opportunity to pay their arrears payments before their water supply is cut off. The Court noted that because women constitute the head of households in many homes in Phiri and perform chores such as water gathering, the prepayment meters also unlawfully discriminate against women unfairly based on their gender. In addition, because of the high incidence of HIV/AIDS in Phiri township the Court relied upon expert testimony regarding the amount of water that persons living with HIV/AIDS and their caregivers require to clean food and linens and to wash, which is more than the general population and certainly more than the 25 liters of water per day permitted by the City.

The Supreme Court of Israel: Anonymous v. The State of Israel (6659/06) (June 11, 2008)

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 Israel could not detain them because it no longer exercised military rule over the Gaza Strip. Israel by contrast, contended that the law met the requirements of the Basic Law, that it had a proper purpose, and involved a proportionate violation of personal liberty. Israel also contested the factual allegations of the appellants. The judgment addresses the issues raised on appeal from periodic reviews of the District Court.

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 Israel has committed, here international humanitarian law norms. It summarized the Law as meaning that an “unlawful combatant” is a foreign party who “belongs to a terrorist organization that operates against the security of the State of Israel.”

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 Israel because while Israeli military rule of the Gaza strip had ended when the appellants were detained, the hostilities between Hezbollah and Israel continued.

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 Israel. It found the second prong to be met because the alternatives that the appellants suggested, being treated as prisoners of war or being given criminal trials, were unsuitable alternatives as not meeting the purpose of the Law; and the way in which the Law is implemented does not violate their right to personal liberty excessively and is within the scope of the deference for the legislature. The Court found the third prong to be met here for a number of reasons including that the scope of the Law is limited as it applies only to foreign parties and not to citizens and residents of Israel; the state must show that the detainee played a real part in the hostilities; the state must show by clear and convincing evidence that the conditions of being an “unlawful combatant” are met; detention orders are subject to periodic reviews and may be appealed; and detention cannot continue indefinitely under the Law and must be weighed on a case by case basis.

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.

United States: Baran v. Beaty (11th Cir., May 2008)

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 Australia.

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 U.S. became a party to the Hague Convention on the Civil Aspects of Child Abduction in 1980 and implements it through the International Child Abduction Remedies Act of 1988 (ICARA) 42 U.S.C. §11603(b). The Convention is designed to protect children from the negative consequences of their wrongful removal or retention and to create measures to ensure their timely return to their “habitual residence.” In its discussion the Court first examined whether Beaty’s removal of Samuel was “wrongful.” If so, the Convention provides the non-abducting parent the ability to have the child returned. While Beaty admits that she wrongfully removed Samuel, she raised the defense that Samuel would risk grave harm pursuant to Article 13(b) of the Convention were he to be returned to Baran in Australia. Baran by contrast, claimed that the District Court erred by failing to show that his alleged conduct was grave enough to deny his return petition. Under ICARA, the party opposing a child’s return must demonstrate the “grave risk” exception by clear and convincing evidence. The Court rejected Baran’s argument that Beaty must not only demonstrate a grave risk of harm but also that the Australian Courts were unable or unwilling to safeguard the child. The Court likewise rejected Baran’s contention that the District Court erred by denying the return without allowing him to present evidence of possible “undertakings,” or court imposed measures, to help protect Samuel. The Court noted that Baran bore the burden of demonstrating undertakings which would help protect Samuel, but he was unable to do so at trial. It thus affirmed the decision of the District Court, holding that it fell within its discretion to deny Baran’s petition for return.

These synopses were provided by the Managing Editors of International Legal Materials and International Law in Brief.


« Back to the first page

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2008 – The American Society of International Law and International Judicial Academy.

Editors: James G. Apple, Veronica Onorevole and Andrew Solomon.
IJM welcomes comments, suggestions, and submissions.
Please contact the IJM editors at