In the Matter of an Independent Review Process: ICM Registry, LLC v. Internet Corp. for Assigned Names and Numbers ("ICANN") (Feb. 19, 2010)

http://www.asil.org/ilib100305.cfm#j2

Click here for document (approximately 79 pages)

An independent review panel, composed of Judge Stephen Schwebel, Jan Paulsson, and Judge Dickran Tevrizian, recently issued its declaration in a dispute between ICM Registry LLC (ICM) and the Internet Corporation for Assigned Names and Numbers (ICANN), holding that the panel's declarations are advisory in nature and not binding on the parties; decisions of the ICANN Board are to be reviewed objectively; ICANN's articles of incorporation required it conform to international law norms and instruments and the laws of California; ICM's application to register .XXX as a top-level domain was approved by ICANN; and ICANN's subsequent reconsideration of the approved application was inconsistent with ICANN's policy. ICANN, originally a group of American computer scientists controlling the management of Internet identifiers, is a nonprofit public benefit corporation incorporated in 1998 in California and has full operational responsibility over protocol and domain name systems of the Internet. ICANN's corporate governance is set out in its bylaws and articles of incorporation, according to which ICANN's powers are exercised and controlled by its Board. The dispute between ICANN and ICM involves the registering of a top-level domain (TLD), specifically a generic TLD (gTLD). TLDs, internet address such as .com, .org, .net, can be either sponsored (one entity oversees a narrower community, such as .museum) or unsponsored (gTLDs managed and overseen by ICANN) … Then panel went on to declare ICANN's review of ICM's application for registration inconsistent with ICANN's policy. Since ICM prevailed on all other grounds, the panel ordered ICANN to pay all administrative fees, along with the compensation and fees of the review panel, a sum of almost $242,000.

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Binyam Mohamed v. Sec'y of State for Foreign and Commonwealth Affairs (Feb. 10, 2010)

http://www.asil.org/ilib100219.cfm#j4

Click here for document (approximately 85 pages)

The Court of Appeal of England and Wales issued a decision rejecting the appeal by the Secretary of State for Foreign and Commonwealth Affairs (Foreign Secretary) to redact several short paragraphs of a lower court's judgment evidencing knowledge and complicity by U.K. authorities in the torture by U.S. authorities of a British resident held at Guantanamo Bay. The Foreign Secretary, as well as U.S. authorities, have strongly urged the British courts from making the paragraphs public, warning that "publication would lead to a real risk of serious harm to the national security of the UK." The Court found these appeals unpersuasive, instead emphasizing that most of the information in question had been made available by U.S. courts. Binyam, originally from Ethiopia, fled to the U.K. in 1994 to seek political asylum. In 2001, he traveled from the U.K. to Pakistan and then to Afghanistan. The U.S. disputes Binyam's claim that he left London for Pakistan and Afghanistan to get away from drugs, instead claiming that he received firearms and explosives training. In April 2002, on his way back to the U.K. through Pakistan, Binyam was arrested and was allegedly tortured for two years. After the alleged appearance of a British agent, the torture stopped. However, shortly thereafter, Binyam alleges that he was taken to Morocco, where the alleged torture continued. In 2004, Binyam was transferred to Guantanamo. He was released from Guantanamo in February 2009. During his detention in Guantanamo, Binyam continued to plead his innocence, alleging that any admission of guilt was obtained through torture. To prove the torture charges, his legal team requested that confidential information held by the British authorities proving torture be released. However, the British government continuously rejected the allegations that such documents existed or that it was complicit in torture. The Foreign Secretary argued that disclosure would destroy the so-called control principle, pursuant to which "[t]he working relationships between the intelligence services of different countries (in this case, the United Kingdom (UK) and the United States of America (USA)) are subject to an understanding of confidentiality.” … [T]he arguments in favour of publication of the redacted paragraphs are compelling. Inevitably if they contained genuinely secret material, the disclosure of which would of itself damage the national interest, my conclusion might be different. However dealing with this appeal as a matter of practical reality rather than abstract legal theory, unless the control principle is to be treated as if it were absolute, it is hard to conceive of a clearer case for its disapplication than a judgment in which its application would partially conceal the full reasons why the court concluded that those for whom the executive in this country is ultimately responsible were involved in or facilitated wrongdoing in the context of the abhorrent practice of torture.

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Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya (Feb. 4, 2010)

http://www.asil.org/ilib100305.cfm#j5

Click here for document (approximately 80 pages)

The African Commission on Human and Peoples' Rights has issued a ruling against Kenya, finding it in violation of Articles 1 (obligation of states parties), 8 (right to practice religion), 14 (right to property), 17 (right to culture), 21 (right to free disposition of natural resources), and 22 (right to development) of the African Charter on Human and Peoples' Rights and has ordered Kenya to return the ancestral land originally belonging to the Endorois, an indigenous community living in Kenya. Kenya was also ordered to pay the Endorois compensation for losses suffered due to unlawful eviction by the Kenyan government. The complaint, which was filed by two nongovernmental organizations on behalf of the Endorois, alleged numerous violations resulting from the unlawful displacement of the Endorois from their ancestral lands, failure to properly compensate them for their property, interference with their religious and cultural rights and the "overall process of development of the Endorois people." Allegedly, in 1973, after hundreds years of having "customary" rights to the lands—the Endorois did not have actual title to the land, but always considered themselves to be the rightful and bona fide owners of it—the Endorois were evicted by the Kenyan government without compensation. The Commission determined that the Endorois had property rights over their land, even though Kenyan authorities had denied them a legal title. The Commission ordered that Kenya take steps to return the disputed land to the Endorois and compensate them within three months for the damages. According to a press release by the Human Rights Watch, this ruling is the first time an international tribunal found "a violation of the right to development" and also "determine[d] who are indigenous peoples in Africa, and what are their rights to land."

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Noriega v. Pastrana (Jan. 26, 2010)

http://www.asil.org/ilib100129.cfm#j1

Click here for the dissenting opinion (approximately 14 pages)

Recently, the U.S. Supreme Court denied a petition for writ of certiorari in Noriega v. Pastrana, thus rejecting the invitation to determine the validity of the Military Commissions Act (MCA) §5(a), which precludes the invoking of the Geneva Conventions and its Protocols as a source of right in habeas corpus or other civil proceedings. The petition was filed by Manuel Antonio Noriega, a former head of the Panamanian Defense Forces, who invoked the Geneva Conventions to prevent his extradition to France. In 1988, Noriega, who was captured upon the U.S.’s invasion of Panama, was indicted by a grand jury and convicted for numerous federal narcotics offenses; he was sentenced to thirty years imprisonment. He was also designated a prisoner of war (POW) entitled to Geneva Convention protections. In 2007, a federal court approved France’s extradition request of Noriega for money laundering charges. Noriega filed a habeas corpus petition alleging that the U.S. violated the Geneva Conventions and its Protocols when it approved France’s request. As a POW, Noriega claimed, he was entitled to repatriation after release from U.S. custody. The district court stayed his extradition pending an appeal on the issue of whether Noriega could invoke the Geneva Convention protections. The 11th Circuit agreed with the lower court’s designation of Noriega as a POW, but it interpreted MCA §5(a) as precluding Noriega from invoking the Geneva Conventions. Noriega filed a petition for certiorari, asking the Supreme Court to determine whether the MCA provision was constitutional.

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United States v. Slough (Dec. 31, 2009)

http://www.asil.org/ilib100106.cfm#j3

Click here for document (approximately 90 pages)

The United States District Court for the District of Columbia dismissed the indictment against five former Blackwater security guards. These defendants had been charged with voluntary manslaughter and firearms violations stemming from a 2007 shooting incident in Iraq in which the defendants allegedly shot and killed fourteen civilians and wounded twenty others. The defendants argued that U.S. government had violated their constitutional rights by using statements made immediately after the incident and compelled by threat of job loss. The government acknowledged that the U.S. Supreme Court decision Garrity v. New Jersey—holding that the government is barred by the Fifth Amendment privilege against self-incrimination from using statements made under a threat of job loss—applied; it also conceded that the prosecution, investigators, and key witnesses “were exposed” to the compelled statements. However, the government argued that such exposure was harmless beyond a reasonable doubt and thus admissible in court against the defendants. Judge Ricardo M. Urbina disagreed, citing to evidence presented by the defense demonstrating that the key witnesses, the prosecution team, and those investigating the incident had been tainted by statements made by the five defendants. Judge Urbina added that the government was in a position to take “certain common sense precautions before presenting its case,” especially since “[t]he prosecutors and investigators were . . . aware from the very moment they were assigned to this case . . . that there was a significant taint problem.” Failure to properly take the necessary precautions, Judge Urbina concluded, amounted to “reckless violation of the defendants’ constitutional rights.” As a result, he granted the defendants’ motion to dismiss the indictment.

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Michelot Yogogombaye v. Republic of Senegal (Dec. 15, 2009)

http://www.asil.org/ilib100120.cfm#j4

Click here for document (approximately 11 pages)

The African Court on Human and Peoples’ Rights issued its first decision this past December dismissing an individual’s application against the Republic of Senegal for lack of jurisdiction. The applicant, Michelot Yogogombaye, filed an application requesting the Court to prevent the government of Senegal from trying the former Chadian head of state, Hissene Habre, for “crimes against humanity, war crimes and acts of torture in the exercise of his duties as Head of State.” Yogogombaye alleged that the proceedings would violate both the principle against nonretroactivity of laws and the principle of universal jurisdiction. The Court, relying on Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights establishing the African Court on Human and Peoples’ Rights, concluded that it had jurisdiction to review applications against states that made a declaration accepting individual applications. However, because Senegal had not made the necessary declaration required by Article 34(6), the Court lacked jurisdiction to hear this case.

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Sacirbey v. Guccione (Dec. 9, 2009)

http://www.asil.org/ilib091217.cfm#j4

Click here for document (approximately 27 pages)

The United States Court of Appeals for the Second Circuit issued a decision granting Muhamed Sacirbey’s petition for writ of habeas corpus and ordering that he not be extradited pursuant to a request by Bosnia and Herzegovina (Bosnia). The Court found that the arrest warrant against Sacirbey was issued by a Bosnian court that had no jurisdiction over the subject matter nor the authority to enforce the warrant since that authority was stripped by 2003 justice system reforms in Bosnia; thus, the Court concluded, the extradition treaty requirement that an individual be “charged” was not met. In 2001, a cantonal court in Bosnia, pursuant to allegations that Sacirbey had embezzled $610,982.46 from the Bosnian government’s funds while he was in charge of the country’s Permanent Mission to the United Nations in New York, issued an international warrant for his arrest. A year later, Bosnia sought Sacirbey’s extradition pursuant to an extradition treaty between the U.S. and the Kingdom of Serbia to which Bosnia had succeeded. The U.S. Department of State, while it had discretion under the treaty to decide otherwise, chose to comply with the extradition request. In 2003, the U.S. Department of Justice filed a complaint for arrest in the U.S. District Court for the Southern District of New York. Sacirbey, who was placed into custody, opposed his extradition on several grounds, most notably arguing that Bosnia had failed to formally charge him with an actual crime. The district court concluded that a formal criminal charge was not required by the treaty and granted the extradition request. A few months later, Sacirbey filed a petition for a writ of habeas corpus. The district court again emphasized that there was no need to formally charge a defendant so long as evidence showed that Bosnia has the intent to prosecute him. The court relied on several letters filed on behalf of the Bosnian government that tended to demonstrate that Bosnia wanted to investigate and prosecute Sacirbey. Sacirbey, on the other hand, argued that this “possible” investigation was politically motivated, and that no Bosnian court had jurisdiction over the matter. The Court of Appeals first noted that the standard of review for habeas cases was “narrow in scope.” The Court also noted that this case was one of first impression in the Second Circuit but that other courts had entertained similar issues.

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Order on the Application of the ECCC of the Form of Liability Known as Joint Criminal Enterprise

http://www.asil.org/ilib091217.cfm#j2

Click here for document (approximately 10 pages)

The Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) have issued a decision ruling that joint criminal enterprise as a mode of liability before the ECCC does not apply to national crimes but does apply to international crimes. Ieng Sary, a former Khmer Rouge official charged with war crimes and crimes against humanity, requested that the judges declare this type of liability as “inapplicable” before the tribunal and as in violation of the principle nullum crimen sine lege (no crime without a law). Sary argued that no customary international law provided for joint criminal enterprise liability either during the time he allegedly committed the offense (1975-1979) or at the present time.Article 29 of the Law on the Establishment of the ECCC, relating to individual types of liability, provides that “[a]ny Suspect who planned, instigated, ordered, aided and abetted, or committed the crimes referred to in article 3 new, 4, 5, 6, 7 and 8 of this law shall be individually responsible for the crime.” While the judges acknowledged that joint criminal liability is not expressly mentioned in Article 29, it was previously “articulated as a form of commission in the Tadic Appeals Judgment at the ICTY [International Criminal Tribunal for the former Yugoslavia].” Once the judges concluded that a definition for this type of criminal liability existed, they had to determine whether it could be invoked in the present proceedings. In other words, would the inclusion of this joint criminal enterprise satisfy the principle of legality? The judges, applying the foreseeability and accessibility test, which requires that the criminal liability is sufficiently foreseeable and the law providing for such liability is sufficiently accessible at the relevant time, held that in fact joint criminal enterprise was both foreseeable and accessible in Cambodia in 1975.

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Al-Bihani v. Obama (Jan. 5, 2009)

http://www.asil.org/ilib100106.cfm#j2

Click here for document (approximately 34 pages)

The United States Court of Appeals for the District of Columbia Circuit has issued a decision upholding the district court’s order denying Ghaleb Nassar Al-Bihani’s (Al-Bihani) petition for writ of habeas corpus. Al-Bihani, a Yemeni citizen who served in a Taliban affiliated group, was captured in Afghanistan by the Northern Alliance and transferred to U.S. authorities in early 2002. He was then sent to Guantánamo Bay for detention and interrogation. Al-Bihani filed a habeas corpus petition challenging his detention. In part, he argued that the basis of his current detention—his alleged support of al Qaeda—was in violation of laws of war. According to Al-Bihani, he was not a member of an official state military and thus was a civilian to be afforded proper rights. The district court denied his petition and held that the government was authorized to detain anyone that had been a part of or supported Taliban or al Qaeda forces “or associated forces that are engaged in hostilities against the United States or its coalition partners.” The district court primarily relied on Al-Bihani’s own admissions and refused to rely on admissions that he later recanted. Al-Bihani appealed the district court’s order “alleging numerous substantive and procedural defects.” The Court of Appeals unequivocally stated that the government is authorized to detain individuals and that international laws of war “have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts.” As a result, the court found the petitioner's reliance on international law "both inapposite and inadvisable." For the court, “international laws of war are helpful to courts when identifying the general set of war powers” but were not binding or authoritative. The court concluded that Al-Bihani’s detention was legitimate and that the government, not international law, should determine “a workable legal standard to identify individuals it can detain.” Reviewing the evidence presented by the government, including Al-Bihami’s own admissions, the appellate court concluded that the lower court had not erred in denying his petition. The court also discussed at length the proper habeas corpus procedures to be afforded to individuals currently detained at Guantánamo Bay. Al-Bihani had argued that the lower court’s habeas process had not met the Suspension Clause requirements and that he deserved a new hearing with additional protections. Analyzing the history and the development of habeas protections, the court concluded that “[h]abeas review for Guantánamo detainees need not match the procedures developed by Congress and the courts specifically for habeas challenges to criminal convictions.”