General
Court of the European Union
Poland v. Commission (March
7, 2013)
Click here for press release (approximately 2
pages); click here for judgment (approximately 25 pages)
The General Court of the European
Union dismissed an action brought by Poland challenging the European
Commission's decision concerning the allocation of free greenhouse gas emission
allowances, set to begin this year. The dispute stems from a 2003 EU
Directive establishing a scheme for the trading within the EU of greenhouse gas
emission allowances. Under the Directive, the Commission must "take
measures to implement the harmonised free allocation of emission
allowances." In 2011, the Commission did so, issuing a decision allocating
emission allowances free of charge to fixed industrial installations or
factories, and setting emission benchmarks for each sector based on average
performance from 2007 and 2008. The decision went into effect in 2013,
allocating allowances free of charge calculated on the basis of those
benchmarks.
Poland argued that the Commission
decision infringed the Treaty on the Functioning of the European Union (TFEU)
and the 2003 Directive. It claimed that the 2011 decision requirements
were more restrictive than the 2003 Directive and that the Commission was not
competent to adopt the contested decision. It also asserted that the Commission
breached the principles of specificity and equal treatment by failing to take
into consideration the different industrial and economic situations across the
EU.
The General Court dismissed Poland's
action in its entirety. It found that the decision is a measure
implementing the Directive, which was in turn adopted on the basis of the TFEU
provisions on environmental policy. Accordingly, it dismissed Poland's
actions "in so far as [Poland] challenge[d] the legality of the decision
under the TFEU rules on energy policy." It also ruled that the
decision does not conflict with the Directive because it "leaves the Member
States a margin of manoeuvre to adopt financial measures" that favor some
industry sectors, and to allocate free allowances to installations in those
sectors.
The General Court also held that the
Commission did not breach the principle of equal treatment "when it
decided to treat uniformly installations that are in different situations, due
to the use of different fuels, when determining the benchmarks to calculate the
number of emission allowances to be allocated." The court reasoned
that setting benchmarks according to the fuel used (e.g. natural gas or coal)
would not cause industrial installations to seek to reduce their emissions.
Similarly, the decision's use of natural gas, which is low in CO2
emissions, to calculate the benchmark standards is permissible because the
standards are intended to reduce the emission of greenhouse gasses.
Finally, the General Court found that the decision "gives
appropriate consideration to the economic and social consequences of the
measures to reduce CO2 emissions." The Court noted that the rules
will be phased in slowly, and coal-burning plants like those operated by Poland
will initially obtain a greater number of free allowances. At the same
time, EU programs will support Member States with relatively low income per
capita and relatively high growth prospects to reduce the carbon intensity of
their economies by 2020.
Poland has two months to appeal points
of law to the Court of Justice.
High
Court of Australia finds International Arbitration Act constitutional (March
13, 2013)
Click here for press release (approximately 1
page); click here for judgment (approximately 30 pages).
The
High Court of Australia has upheld the constitutionality of the International
Arbitration Act of 1974, which implements the United Nations Commission on
International Trade Law Model Law on International Commercial Arbitration in
Australia. In the case of TCL
Air Conditioner (Zhongshan) Co LTD v. The Judges of the Federal Court of
Australia & ANOR, the dispute arose out of a suit to enforce an
arbitral award against TCL. TCL instituted separate proceedings requesting
an order restraining the Federal Court from enforcing the award, arguing that
"the Model Law provided for an exercise of judicial power of the
Commonwealth in a manner contrary to Ch III of the Constitution."
The High Court unanimously dismissed the application.
Dutch
Court sentenced Rwandan-born woman to prison for genocide (March 1, 2013)
Click here for news story (approximately 2 pages)
A Dutch court sentenced a Rwandan-born
Dutch citizen to six years and eight months in jail for inciting
genocide. The court held that defendant Yvonne Besabya, the Hutu wife of
a Rwandan lawmaker, "embraced and propagated this extreme racist ideology
and used her influence to contribute to an atmosphere of violence" during
the 1994 Rwandan genocide. Besabya fled Rwanda in 1994 and settled in the
Netherlands. The court acquitted her of other charges, including perpetrating
genocide, murder, and war crimes.
International Criminal Tribunal for the former
Yugoslavia terminates appellate proceedings in relation to Milan Gvero (March
8, 2013)
Click here for press release (approximately 1
page)
The
International Criminal Tribunal for the former Yugoslavia reports that Milan
Gvero died on February 17, 2013. He was the Assistant Commander for
Moral, Legal and Religious Affairs of the Bosnian Serb Army Main Staff, and one
of six defense appellants in the Popovic
et al. case. In 2010, the
Trial Chamber found Gvero guilty of committing persecution and other inhumane
acts as crimes against humanity in the Srebrenica and Zepa enclaves and
sentenced him to five years' imprisonment. Following Gvero's death, the
Appeals Chamber terminated appellate proceedings related to him and pronounced
the Trial Judgment findings and sentence against him final.
International
Criminal Court
The Prosecutor v. Germain Katanga (March 27, 2013)
Click here for press release (approximately 2
pages); click here for judgment (approximately 51 pages)
The Appeals Chamber of the
International Criminal Court dismissed the appeal of Germain Katanga to Trial
Chamber II's "Decision on the implementation of regulation 55 of the
Regulations of the Court and severing the charges against the accused
persons" which gave notice of a "possible change in the legal
characterization of the form of responsibility with which Mr Katanga is
charged." The majority of the Chamber, with Judge Tarfusser dissenting,
held that the change in the legal characterization of the facts is in
conformity with regulation 55(2) of the Regulations of the Court and that it
does not violate Katanga's right to a fair trial.
Katanga, a Congolese national, is
charged with crimes against humanity and war crimes jointly through another
person. These crimes were allegedly committed during the attack against the
military camp and civilian population of the Bogoro village. In November 2012,
the Trial Chamber gave notice to the parties of "a possible
re-characterisation of the form of responsibility to . . . contributing in any
other way to the commission of the crimes by a group of persons acting with a
common purpose."
According to the Press Release, the
Appeals Chamber emphasized that "considering the advanced stage of the
proceedings, the Trial Chamber will need to be particularly vigilant in
ensuring Mr Katanga's right to be tried without undue delay." The
proceedings in the Trial Chamber will continue as outlined by that Chamber in
its notice of the potential change in the legal characterization of the facts.
Special
Court for Sierra Leone
Independent Counsel v. Bangura, Kargbo, Kanu and Kamara (Judgment in
Contempt Proceedings) (March
21, 2013)
Click here for press release (approximately 2
pages); click here for judgment (approximately 26 pages)
The Appeals Chamber of the Special
Court for Sierra Leone upheld the convictions and sentences of three former
Armed Forces Revolutionary Council (AFRC) leaders. The three-judge panel
rejected the appeals of contempt for interference with prosecution witnesses.
Ibrahim Bazzy Kamara and Santigie
Borbor Kanu appealed their September 2012 convictions for "knowingly and
willfully interfering with the administration of justice" by interfering
with prosecution witnesses who had testified against them in their trial for
war crimes and crimes against humanity. Samuel Kargbo, who entered into a plea
agreement and resultantly pled guilty to the charges in July of 2011,
"appealed what he alleged was the trial judge's failure to order protective
measures for him."
According to the Court's Press
Release, Kamara's appeal was dismissed as incompetent on the grounds that he
failed "to stipulate 'the grounds on which the appeal was made'."
Kanu's appeal was dismissed because "several, if not all, of his grounds
of appeal suffer from . . . deficiencies." Finally, Kargbo's appeal was
also dismissed as incompetent because "it was not an appeal either against
conviction or against sentence, and thus did not fall with the appellate jurisdiction
of Appeals Chamber." The Court thus affirmed the sentences imposed by the
Trial Chamber.
International
Criminal Tribunal for the former Yugoslavia
Prosecutor v. Mico Stanisic and Stojan Zupljanin (March 27, 2013)
Click here for press release (approximately 2
pages); click here, here, and here for
the three-volume judgment (approximately 1474 pages in total)
The Trial Chamber of the International
Criminal Tribunal for the former Yugoslavia sentenced Mico Stanisic and Stojan
Zupljanin to twenty-two years imprisonment for crimes against humanity and war
crimes committed in Bosnia and Herzegovina. The Chamber found that Stanisic and
Zupljanin participated in a joint criminal enterprise to "permanently
remove non-Serbs from the territory of a planned Serbian state and that many of
the crimes committed in the municipalities were foreseeable to the
Accused."
Mico Stanisic was the Minister of the
Interior of the Republika Srpska. Stojan Zupljanin was the Chief of the
Regional Security Services Centre of Banja Luka, and also a member of the
Crisis Staff of the Autonomous Region of Krajina. Both had pled not guilty to
all charges in 2008. The trial lasted from September 14, 2009 to June 1, 2012.
During the course of the trial, the Trial Chamber heard 199 witnesses and
entered 4,377 exhibits into evidence.
According to the Press Release, both
were convicted of crimes against humanity, including: "persecution . . .
through the underlying acts of killings; torture, cruel treatment, and inhumane
acts; unlawful detention; establishment and perpetuation of inhumane living
conditions; forcible transfer and deportation; plunder of property; wanton
destruction of towns and villages, including destruction or wilful damage done
to institutions dedicated to religion and other cultural buildings; and the
imposition and maintenance of restrictive and discriminatory measures."
They were also convicted of murder and torture as violations of the laws or
customs of war. Stanisic was found not guilty of extermination as a crime
against humanity.
The
International Tribunal for the Law of the Sea Receives a Request for an
Advisory Opinion from the Sub-Regional Fisheries Commission (March 28, 2013)
Click here for press release (approximately 2
pages)
The
International Tribunal for the Law of the Sea received a request from the
Sub-Regional Fisheries Commission (SRFC) to render an advisory opinion. The
SRFC is located in Dakar, Senegal and comprises seven member states: Cape
Verde, the Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and Sierra Leone.
The request for an advisory opinion was made by resolution pursuant to article
33 of the 2012 Convention on the Determination of the Maritime Areas under
Jurisdiction of the Member States of the Sub-Regional Fisheries Commission.