International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Winter 2013 Issue

CASES of note

Chafin v. Chafin (February 19, 2013)

Click here for document (approximately 23 pages)

The Supreme Court of the United States decided in Chafin v. Chafin that the return of a child to his or her habitual place of residence under the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") and the corresponding domestic implementing legislation, the International Child Abduction Remedies Act ("ICARA"), does not render an appeal of the return order moot.

The Convention seeks "to secure the prompt return of children wrongfully removed to or retained in any Contracting State" and "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." ICARA grants both federal and state courts jurisdiction over actions arising under the Convention, and directs them to decide cases according to the Convention. If courts find that children are wrongfully removed or retained, the children "are to be promptly returned."

The petitioner in the case, Jeffrey Lee Chafin, is a U.S. citizen and serves in the U.S. Army. While stationed in Germany in 2006, he married Lynne Hales Chafin, a citizen of the United Kingdom. In 2007, they had a daughter, E. C.. During the same year, Mr. Chafin was deployed to Afghanistan, and Ms. Chafin took E. C. to Scotland. Mr. Chafin was "eventually transferred" to Huntsville, Alabama. In 2010, Ms. Chafin and E. C. joined him there, and shortly after, Mr. Chafin filed for divorce and child custody in an Alabama state court. Later that year, Ms. Chafin was arrested for domestic violence, which triggered her deportation in February 2011 because she had overstayed her visa. The child stayed with Mr. Chafin for several months. In May 2011, Ms. Chafin filed a petition in the U.S. District Court for the Northern District of Alabama under the Convention and ICARA seeking an order for E. C.'s return to Scotland. At the conclusion of a bench trial, the District Court concluded that E. C.'s country of habitual residence was Scotland and granted Ms. Chafin's petition and order of return. "Within hours," Ms. Chafin departed with the child for Scotland, where she initiated custody proceedings that resulted in a grant of interim custody and a preliminary injunction prohibiting Mr. Chafin from removing E. C. from Scotland.

Mr. Chafin appealed the District Court order to the Court of Appeals for the Eleventh Circuit. The Circuit Court dismissed Mr. Chafin's appeal as moot because "an appeal of a Convention return order was moot when the child had been returned to the foreign country, because the court 'became powerless' to grant relief." The case was remanded to the District Court "with instructions to dismiss the suit as moot and vacate its order." The District Court complied and also ordered Mr. Chafin to pay Ms. Chafin over $94,000 in fees associated with the dispute. Mr. Chafin's original child custody proceeding in state court was dismissed for lack of jurisdiction, and the Alabama Court of Civil Appeals affirmed, relying on the U.S. District Court's finding that the child's habitual residence was in Scotland.

The United States Supreme Court granted certiorari. The Court, in an opinion by Chief Justice Roberts, concluded that "this dispute is still very much alive" because the parties continue to contest the location of the habitual residence of the child, both parties seek custody of the child, and Mr. Chafin wants the order to pay Ms. Chafin over $94,000 vacated. The Supreme Court noted that "Mr. Chafin is asking for typical appellate relief: that the Court of Appeals reverse the District Court and that the District Court undo what it has done. . . . The question is whether such relief would be effectual in this case." The Court found that the uncertainty of enforcement does not render the case moot, writing that "[a] re-return order may not result in the return of E. C. to the United States, just as an order that an insolvent defendant pay $100 million may not make the plaintiff rich. But it cannot be said that the parties here have no 'concrete interest' in whether Mr. Chafin secures a re-return order."

The Supreme Court also considered Ms. Chafin's policy arguments that the Convention and ICARA stress the importance of the prompt return of children wrongfully removed or retained, and the possible detriment to children repeatedly transported across international borders. It found that the "familiar judicial tools" of expedited proceedings and the grant of stays would be sufficient. In the Court's analysis, if it found that after a child's return a case becomes moot, lower courts would be more likely to grant stays, which would conflict with the Convention's mandate of prompt return to a child's country of habitual residence. Such routine stays might also increase the number of appeals, which would have the same effect. Finally, a mootness holding in the case might also encourage flight in future Hague Convention cases, in an attempt by prevailing parents to moot the case.

The Supreme Court announced that in the future, courts should apply the four traditional stay factors of Nken v. Holder, 556 U.S. 418, 434 (2009) in considering stays of return orders. It also directed district and appellate courts to "take steps to decide these cases as expeditiously as possible."

Justice Ginsburg, joined by Justices Scalia and Breyer, wrote a concurring opinion stressing the temporal problem posed by this case. The concurring opinion also discusses the procedures followed in England and Wales to prevent delay in deciding these types of cases and encourages "rulemakers and legislators" to "pay sustained attention to the means by which the United States can best serve the Convention’s aims."

Judge Grants Defense Lawyers Access to Guantanamo Camp (February 21, 2013)

Click here for news story (approximately 1 page)

NPR reports that Army Colonel James Pohl, the judge presiding over the September 11 military commissions, for the first time granted the defense teams access to the secret section of the Guantanamo Bay detention center, Camp 7, where the accused are held. Pohl ruled that "three members of each team can visit once, for no more than 12 continuous hours," but that they are prohibited from interviewing guards. This is less than what was requested by defense counsel, who reportedly requested multiple visits and wanted to spend forty-eight hours inside the camp. The order, when declassified, will be available on the Military Commissions website.

Executive Order - Improving Critical Infrastructure Cybersecurity (Feb. 12, 2013)

Click here for document (approximately 4 pages)

On February 12, 2013, President Barack Obama signed an Executive Order on cybersecurity.  According to a White House Press Release, the Order will "strengthen the cybersecurity of critical infrastructure by increasing information sharing and by jointly developing and implementing a framework of cybersecurity practices with [U.S.] industry partners." In particular, the Order expands the voluntary Enhanced Cybersecurity Services program, allowing for better information sharing on cyber threat information and protection efforts. It also charges the National Institute of Standards and Technology with developing a framework of cybersecurity practices to reduce cyber risks to critical infrastructure.

U.S. Files WTO Dispute Against India on Solar Panel Products (Feb. 12, 2013)

Click here for press release (approximately 1 pages)

On February 12, 2013, the United States initiated a World Trade Organization dispute with India over solar panel products.  According to a WTO press release, "the United States claims that India requires solar power developers to buy and use domestic solar cells and solar modules" in order to benefit from certain government programs or to enter into contracts with the National Power Company.  The U.S. claims this discriminates against foreign solar equipment manufacturers.

U.S. Supreme Court Grants Certiorari in Bond v. United States (Jan. 18, 2013)

Click here for cert. order (approximately 1 page)

The U.S. Supreme Court granted certiorari in Bond v. United States. The appeal was brought by a Pennsylvania woman prosecuted for attempting to poison her husband's lover.  Bond argues that her prosecution—brought pursuant to the federal law implementing the Chemical Weapons Convention—is unconstitutional because, so applied, that law exceeds Congress' authority under the Constitution.  The Third Circuit Court of Appeals dismissed Bond's claim, concluding it was obliged to do so because the prosecution was undertaken pursuant to a statute enacted by Congress implementing a valid treaty, and the Supreme Court, in its 1920 decision in Missouri v. Holland, held that "if [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8 [of the Constitution], as a necessary and proper means to execute the powers of the Government." 

The Supreme Court has framed two questions to be argued on appeal:

Do the Constitution's structural limits on federal authority impose any constraints on the scope of Congress' authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government's treaty obligations?

Can the provisions of the Chemical Weapons Convention Implementation Act . . . be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court's decision in Missouri v. Holland?

AgudasChasideiChabad of the United States v. Russian Federation (Jan. 16, 2013)

Click here for decision (approximately 10 pages)

The U.S. District Court for the District of Colombia has ordered the Russian government to pay $50,000 each day to plaintiff AgudasChasideiChabad of the United States ("Chabad") for refusing to comply with a previous court order to return Jewish religious books, artifacts, and other materials seized in the early twentieth century in Russia.

Chabad sued the Russian government in 2004 under the Foreign Sovereign Immunities Act ("FSIA"), seeking return of the materials. After the Russian government lost on jurisdictional arguments, it informed the court that it would no longer be participating in the case as it believed the court lacked "authority to adjudicate rights in property that in most cases always has been located in the Russian Federation . . . ." In 2010, the court entered a default judgment in favor of Chabad and ordered the Russian government to "surrender to the United States Embassy in Moscow or to the duly appointed representatives of . . . Chabad . . . the complete collection." When the Russian government failed to comply, Chabad moved for civil contempt sanctions, seeking "the entry of a monetary penalty for every day that the defendants continue to disobey this Court's Order." Before ordering the sanctions, the court solicited U.S. government comment because of "the serious impact such an order could have on the foreign policy interests of the United States."

The U.S. government, like the Russian government, objected to the "requested sanctions on both legal and pragmatic grounds." According to the U.S. government, "civil contempt sanctions are unavailable to enforce judgments issued against foreign states under the FSIA," and "sanctions would damage the United States' foreign policy interests, including its diplomatic efforts to reach a settlement with defendants on Chabad's behalf."

The court rejected both objections and ordered the sanctions requested by Chabad. Relying on a 2011 decision by the D.C. Court of Appeals, FG Hemisphere Associates LLC v. Democratic Republic of the Congo, the district court concluded that it can issue civil contempt sanctions against foreign states under the FSIA. In FG Hemisphere, the Court of Appeals affirmed a district court's order imposing civil contempt sanctions against the Democratic Republic of the Congo for failing to comply with discovery orders.

U.S. President Obama Signs Legislation Expanding Rewards Program to Target Transnational Organized Criminals and Most Serious Human Rights Abusers (Jan. 15, 2013)

Click here for White House statement (approximately 1 page); click here for legislation (approximately 4 pages)

President Obama has signed legislation to authorize the Secretary of State to pay rewards to combat transnational organized crime and for information concerning foreign nationals wanted by international criminal tribunals, including the International Criminal Court. The law will thus expand the State Department's Rewards for Justice Program, established by the 1984 Act to Combat International Terrorism and thus far used to fight against international terrorism. According to a White House statement, the legislation is a "powerful new tool . . . to help bring to justice perpetrators of the worst crimes known to human kind. This includes individuals such as Joseph Kony and other leaders of the Lord's Resistance Army (LRA), as well as certain commanders of M23 and the Democratic Forces for the Liberation of Rwanda (FDLR)."

United States Files Dispute in the WTO Against Indonesia on Import Licensing and Quotas (Jan. 10, 2013)

Click here for press release (approximately 1 page); click here for the Request for Consultation (approximately 2 pages)

On January 10, 2013, the United States filed a request for consultations with Indonesia concerning measures imposed by Indonesia on the importation of horticultural products, animals, and animal products. Specifically, the Request alleges that "Indonesia subjects the importation of horticultural products, animals and animal products into Indonesia to non automatic import licenses and quotas, thereby restricting imports of goods," and that "[t]hese licensing regimes have significant trade restrictive effects on imports and are used to implement what appear to be WTO-inconsistent measures."

Department of Justice White Paper (Nov. 8, 2011)

Click here for document (approximately 16 pages)

On February 4, 2013, a U.S. Department of Justice paper prepared in late 2011 entitled "Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa'ida or An Associated Force" was made public by NBC.  The White Paper outlines the Department of Justice's analysis of "the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa'ida or an associated force of al-Qa'ida - that is, an al-Qa'ida leader actively engaged in planning operations to kill Americans." Analyzing primarily domestic law, and to a lesser extent international law, the paper concludes that such an operation could be lawful if: an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and the operation would be conducted in a manner consistent with applicable law of war principles.

For more information, see the related ASIL Insight on this topic.

U.S. Senate Fails to Ratify the Convention on the Rights of Persons with Disabilities (Dec. 4, 2012)

On December 4, 2012, the U.S. Senate voted against the ratification of the Convention on the Rights of Persons with Disabilities.

The Convention, already ratified by 126 countries, was adopted on December 13, 2006, and entered into force on May 3, 2008. According to the UN, the Convention "is intended as a human rights instrument with an explicit, social development dimension. It adopts a broad categorization of persons with disabilities and reaffirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms."

Hamdan v. United States (Oct. 16, 2012)

Click here for document (approximately 37 pages)

The U.S. Court of Appeals for the District of Columbia Circuit has vacated the military commission conviction of Salim Ahmed Hamdan, an al Qaeda member and Osama bin Laden's former driver, for material support of terrorism.

Hamdan was captured in Afghanistan in 2001 and was later transferred to the U.S. Naval Base at Guantanamo Bay, Cuba, where he was detained as an enemy combatant and tried and convicted by a military commission for "material support for terrorism," a war crime specified by the Military Commissions Act of 2006. Hamdan was sentenced by the military commission to sixty-six months' imprisonment, and then transferred in late 2008 to Yemen, where he was eventually released. Hamdan has continued to appeal his U.S. war crimes conviction from Yemen.

The Court of Appeals concluded that the Military Commissions Act of 2006 does "not to authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred." In other words, "only if the relevant statute that was on the books at the time of his conduct . . . encompassed material support for terrorism" could Hamdan's conviction stand.

According to the Court, when Hamdan committed the relevant conduct from 1996 to 2001, the applicable law provided that military commissions may try violations of the "law of war" (i.e., the international law of war). The Court stated that when Hamdan committed the wrongful acts, the international law of war proscribed a variety of war crimes, but it "did not proscribe material support for terrorism as a war crime." Because the Court read "the Military Commissions Act not to retroactively punish new crimes, and because material support for terrorism was not a pre-existing war crime under 10 U.S.C. § 821, Hamdan's conviction for material support for terrorism cannot stand." The Court consequently ordered that Hamdan's conviction for material support for terrorism be vacated.

Habyarimana et al. v. Kagame (Oct. 10, 2012)

Click here for document (approximately 6 pages)

The U.S. Court of Appeals for the Tenth Circuit has dismissed the claims filed by the widows of the former presidents of Rwanda and Burundi, seeking to hold current Rwandan President Kagame liable under, inter alia, the Alien Tort Claims Act for their husbands' deaths. Affirming the District Court, the Appeals Court concluded that the request by the U.S. government to recognize President Kagame's immunity from suit as sitting head-of-state was decisive: "We must accept the United States' suggestion that a foreign head of state is immune from suit—even for acts committed prior to assuming office—'as a conclusive determination by the political arm of the Government that the continued [exercise of jurisdiction] interferes with the proper conduct of our foreign relations.'"

The plaintiffs' husbands were killed when two surface-to-air missiles brought down their aircraft. The plaintiffs allege that the final order to shoot down the plane was given by now President Kagame. After the plaintiffs filed suit in Oklahoma federal court, the U.S. government submitted, at the request of the Rwandan government, a "suggestion of immunity" on behalf of President Kagame. In its submission, the U.S. government emphasized that "[t]he United States has an interest in this action because the . . . Defendant, President Kagame, is the sitting head of state of a foreign state, thus raising the question of President Kagame's immunity from the court's jurisdiction while in office." In its submission, the U.S. government also noted that "[t]he interest of the United States in this matter arises from a determination by the Executive Branch of the Government of the United States, in consideration of relevant principles of customary international law, and in the implementation of its foreign policy and in the conduct of its international relations, to recognize President Kagame's immunity from this suit while in office."

The Court of Appeals agreed with the District Court that '"[f]or more than 160 years American courts have consistently applied the doctrine of sovereign immunity when requested to do so by the executive branch. Moreover, they have done so with no further review of the executive's determination.'"

Gutierrez v. State of Nevada (Sept. 19, 2012)

Click here for document (approximately 14 pages)

The Supreme Court of the State of Nevada has ruled in Gutierrez v. State of Nevada that Carlos Gutierrez, a Mexican national sentenced to death for the killing of his three-year-old stepdaughter, is entitled to an evidentiary hearing to determine whether he suffered actual prejudice due to the lack of consular assistance during his sentencing hearing. The Court specifically referred to the 2004 decision of the International Court of Justice ("ICJ"), Avena and Other Mexican Nationals, wherein the ICJ found that the United States violated Article 36 of the 1963 Vienna Convention on Consular Relations when it failed to notify fifty-one Mexican nationals on death row, one of whom was Gutierrez, of their consular notification and access rights. While the U.S. Supreme Court subsequently held in Medellin v. Texas that neither Avena nor the accompanying President's Memorandum purporting to implement Avena "constituted directly enforceable federal law," the Supreme Court of Nevada ruled that in cases where actual prejudice can be shown, state procedural default rules "may yield" to Avena.

According to the Supreme Court of Nevada, "[u]nlike Medellin and Leal Garcia but like Torres, Gutierrez arguably suffered actual prejudice due to the lack of consular assistance." Furthermore, the Court noted that "[i]t is apparent that Gutierrez needed help navigating the American criminal system. At the time of his arrest, Gutierrez was 26 years old, had the Mexican equivalent of a sixth-grade education, and spoke little English." The Court concluded that "[r]easonable minds can differ on whether these errors were prejudicial and that is precisely the reason an evidentiary hearing is necessary."

Memorandum of Understanding Between the Government of the Russian Federation and the Government of the United States of America on Cooperation in Antarctica (Sept. 8, 2012)

Click here for document (approximately 1 page); click here for U.S. Department of State Fact Sheet (approximately 1 page)

The United States and Russia have signed a Memorandum of Understanding for Cooperation in Antarctica ("MOU") and issued Joint Statements on Pursuing a Transboundary Area of Shared Beringian Heritage and on Enhancing Interregional Cooperation.

According to the accompanying U.S. Department of State Fact Sheet, the MOU will "[s]trengthen cooperation and significantly improve coordination of bilateral policies, science, logistics, search and rescue, training, and public outreach in Antarctica" and "reinforce cooperative activities already taking place."

The parties, guided by the Antarctic Treaty of December 1, 1959, have agreed "to consult regularly through their respective Foreign Ministries on issues of common interest concerning implementation of the Treaty and other elements of the Antarctic Treaty system," "to cooperate in the organization and conduct of joint inspections in the Treaty area under Article VII of the Treaty and Article 14 of the Protocol on Environmental Protection to the Antarctic Treaty," "to encourage organization and implementation of joint projects and programs for research and exploration of Antarctica," "to promote collaboration in scientific research and logistical and support activities between their respective national Antarctic program managers," and "to facilitate scientific cooperation in the Treaty area and the exchange of associated data in important areas of scientific research."

The MOU is a non-binding instrument that "does not constitute an international agreement or give rise to any rights and obligations for the Parties under international law.


In Re People's Mojahedin Org. of Iran (June 1, 2012)

Click here for document (approximately 12 pages)

The U.S. Court of Appeals for the District of Columbia has ordered the U.S. Secretary of State to make a decision within four months on the petition filed by the People's Mojahedin Organization of Iran ("PMOI") to be removed from the Foreign Terrorist Organization ("FTO") list. If the Secretary fails to either deny or grant the petition, then the Court will grant the PMOI's writ of mandamus to set aside the FTO designation.

A writ of mandamus is a common law writ "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly" (see Black's Law Dictionary). Courts rarely issue the writ, which the Court here also acknowledged: "The 'issuance of the writ is an extraordinary remedy, reserved only for the most transparent violations of a clear duty to act.'"

At the heart of this case is the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which authorizes the Secretary of State to designate an entity an FTO if specific conditions are fulfilled. Once an entity is designated, its assets are frozen, its members are barred from entering the United States, and those who knowingly provide "material support or resources" to the FTO can be fined and/or imprisoned for up to fifteen years. Before 2004, the FTO designation lasted for two years; thereafter, the Secretary could either renew it or allow it to lapse. In 2004, the two-year limitation was removed, meaning that now designations do not lapse; instead, an FTO can file a petition for revocation with the Secretary to challenge the listing. The petition must include evidence showing that the relevant circumstances that led to the designation have sufficiently changed. The Secretary has 180 days to review the petition and approve or deny it on the basis of both classified and declassified information. If the petition is denied, the FTO can seek judicial review within thirty days of the denial.

In this case, the PMOI filed a petition for revocation in 2008 of its 2003 designation, including in its petition the necessary evidence to demonstrate that the circumstances within the organization that led to the original designation had dramatically changed. PMOI's petition was denied in 2009, and PMOI timely petitioned the Court for review. The Court held that the procedures did not provide PMOI due process, and it directed the Secretary to provide PMOI access to unclassified documents on which she relied in her decision. However, since the July 2010 order, the Secretary has failed to provide PMOI with the additional documents. PMOI then petitioned the Court for the issuance of a writ of mandamus.

While the Court refused to immediately revoke the FTO designation "in light of the national security and foreign policy concerns," it openly criticized the government's slow progress in this case, finding "the Secretary's delay in acting on PMOI's petition for revocation . . . egregious." The Court ordered the Secretary to either deny or grant PMOI's petition not later than four months from the date of the opinion; and "if she fails to take action within that period, the petition for writ of mandamus setting aside the FTO designation will be granted."

Foreign Claims Settlement Commission of the United States 2011 Annual Report (June 2012)

Click here for document (approximately 64 pages)

The U.S. Foreign Claims Settlement Commission, an independent, quasi-judicial federal agency within the U.S. Department of Justice, has issued its 2011 report, detailing the work of the numerous claims programs that have been administered by the Commission. Authorized to "receive, examine, adjudicate, and render final decision with respect to claims of U.S. nationals against foreign governments," the Commission and its predecessor, the International Claims Commission, have administered numerous programs involving claims by U.S. nationals against several foreign countries. The 2011 Report provides detailed information about country-specific claims and the resulting decisions.

U.S. Trafficking in Persons Report (June 2012)

Click here for document (approximately 61 pages)

The U.S. Department of State has issued the 2012 Report on Trafficking in Persons. Noting that the U.S. commitment to fight "modern slavery" commenced long before the passage of the Trafficking Victims Protection Act ("TVPA") and the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), the report stresses that despite much improvement, "slavery persists in the United States and around the globe." According to the report, it is estimated that twenty-seven million individuals around the world are victims of human trafficking.

As mandated by the TVPA, the report places each country onto one of three tiers reflecting a government's efforts to come in compliance with the TVPA's minimum standards for the elimination of human trafficking. The TVPA's minimum standards require that 1) governments prohibit severe forms of trafficking in persons and punish acts of trafficking; 2) in especially grave circumstances involving force, rape, death, and children, governments prescribe punishment commensurate with the level of severity; 3) governments prescribe punishment that is adequate to reflect the heinous nature of the offense and is sufficiently stringent to deter the conduct; and 4) governments make serious and sustained efforts to eliminate severe forms of trafficking in persons.

Tier 1 represents the highest ranking, meaning that a country in this tier "has acknowledged the existence of human trafficking, has made efforts to address the problem, and meets the TVPA's minimum standards." Tier 2 countries comprise countries that do not fully comply with the TVPA's minimum standards, "but are making significant efforts to bring themselves into compliance." Finally, Tier 3 countries are countries whose governments do not fully comply with the minimum standards and have failed to make significant efforts to comply. The TVPA directs the U.S. government to penalize the Tier 3 countries by, inter alia, subjecting them to certain sanctions. For a complete listing of the countries and their current tier, refer to pages 52-58 of the Report.

United States v. Dire (May 23, 2012)

Click here for document (approximately 57)

In a May 23, 2012 ruling, the U.S. Court of Appeals for the Fourth Circuit ruled that Somali pirates apprehended before boarding a ship they had intended to seize could still be lawfully convicted of piracy. The case concerned 18 U.S.C. § 1651, which provides that "[w]hoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life." The defendants, who were all found guilty of the crime, challenged the district court's broad reading of the statute, which did not require the robbery element. Instead, the defendants argued that the crime of piracy "has been narrowly defined for purposes of § 1651 as robbery at sea, i.e., seizing or otherwise robbing a vessel," an argument that had been upheld in United States v. Said, 757 F. Supp. 2d 554 (E.D. Va. 2010) (the Said decision was vacated and remanded on the same day thatDire was issued). Since they only boarded the vessel involuntarily after being seized and never took possession of property, they challenged their convictions and the mandatory life sentence. The Court of Appeals upheld the district court's ruling that customary international law is both evolving and a definite, knowable standard. The Court assessed this standard by reviewing international consensus, based in large part on foreign sources of law and widely accepted treaties regardless of their ratification by the United States (including a reference to the United Nations Convention on the Law of the Sea ("UNCLOS")).

On April 1, 2010, the USS Nicholas, a U.S. battleship disguised as a merchant ship, was attacked by Somali pirates on the high seas in the Indian Ocean. The attack began when defendants opened fire with AK-47 machine guns, while rocket-propelled grenade launchers and a ladder for their planned attempt to board the ship were also present in their skiffs. When their initial shots were returned, the pirates attempted to flee but were apprehended. Defendants were indicted on several counts, most notably for piracy, which carries a mandatory life sentence.

The District Court denied defendants' motion to dismiss the piracy charge, ruling instead that based on precedent in United States v. Hasan, 747 F. Supp. 2d 599, 602 (E.D. Va. 2010), the law of nations now recognizes that the crime of piracy encompasses "inter alia, acts of violence committed on the high seas for private ends." At the conclusion of trial, the jury found the defendants guilty on all counts. Defendants were sentenced to life plus eighty years. They appealed, contending that their attack on the USS Nicholas did not constitute piracy.

The Fourth Circuit upheld the lower court's finding that the relevant provision recognized an evolving standard of customary international law. The Court expressly rejected conflicting precedent in Said, where the opposite conclusion was reached. The Saidcourt had dismissed the piracy count where no taking of property was alleged, based on the premise that when § 1651 was enacted, the law of nations then defined piracy to require the element of robbery. The Court of Appeals acknowledged that at that time the law of nations limited the crime of piracy to require the element of robbery. However, it added that interpretation of our law would render it incongruous with the modern law of nations and prevent us from exercising universal jurisdiction in piracy cases . . . . At bottom, then, the defendants' position is irreconcilable with the noncontroversial notion that Congress intended in § 1651 to define piracy as a universal jurisdiction crime. In these circumstances, we are constrained to agree with the district court that § 1651 incorporates a definition of piracy that changes with advancements in the law of nations.

The Court also conducted a thorough analysis to arrive at the conclusion that the modern evolution of the definition of piracy under customary international law no longer specifically required robbery, stating, "We also agree with the district court that the definition of piracy under the law of nations . . . ha[s] for decades encompassed their violent conduct. That definition, spelled out in the UNCLOS, as well as the High Seas Convention before it, has only been reaffirmed in recent years as nations around the world have banded together to combat the escalating scourge of piracy."

Mohamad v. Palestinian Authority (Apr. 18, 2012)

Click here for decision (approximately 12 pages)

Relying on the plain meaning of the term “individual” provided in the Torture Victim Protection Act (“TVPA), the U.S. Supreme Court ruled that the statute imposes liability on natural persons only and does not impose liability on organizations.

The petitioners sued the Palestinian Authority under the TVPA for the death of their relative, a naturalized U.S. citizen who was arrested, tortured, and killed by Palestinian Authority intelligence officers on his visit to the West Bank. The district court dismissed the case relying on the language of the TVPA, which provides a cause of action against “[a]n individual” for acts of torture and extrajudicial killing committed under authority or color of law of any foreign nation. The Court of Appeals for the District of Columbia affirmed the district court’s findings. The petitioners then filed a petition for a writ of certiorari.

The Supreme Court declined the petitioners’ invitation to read the term “individual” broadly, concluding instead: “The text of the TVPA convinces us that Congress did not extend liability to organizations, sovereign or not. There are no doubt valid arguments for such an extension. But Congress has seen fit to proceed in more modest steps in the Act, and it is not the province of this Branch to do otherwise.”

U.S. Supreme Court Denies Cert in Bowoto et al. v. Chevron et al. (Apr. 23, 2012)

Click here for Court’s Order List (approximately 10 pages)

The U.S. Supreme Court denied the petition for certiorari in Bowoto et al. v. Chevron Corp. et al., a class action lawsuit charging Chevron/Texaco with gross violations of human rights in the Niger Delta region under the Torture Victim Protection Act (“TVPA”). The cert denial was expected since the Supreme Court ruled just a week earlier inMohamad v. Palestinian Authority (see summary above) that only human beings, and not organizations and corporations, can be sued under the TVPA.

Zivotofsky v. Clinton, Secretary of State (Mar. 26, 2012)

Click here for decision (approximately 35 pages)

The U.S. Supreme Court has vacated and remanded to the lower court a case dealing with a provision of the Foreign Relations Authorization Act ("FRAA"), which allows an individual born in Jerusalem to list his or her place of birth as Israel on a consular report of birth abroad and on her passport. The Supreme Court ruled that the lower courts erred in dismissing this action on the basis of the political question doctrine, which allows federal courts to refuse to hear a case if they find it presents a political question. According to the Court, the actual issue here was whether the challenged FRAA provision should be given effect, or whether it should be struck down because it intrudes upon Presidential powers under the U.S. Constitution.

The plaintiffs, parents of a child born in Jerusalem, filed suit on his behalf against the U.S. Secretary of State because U.S. State Department officials refused the parents' request to add "Israel" after Jerusalem in the child's relevant documents. In rejecting the request, the U.S. State Department cited its policy that prohibits recording either "Israel" or "Jordan" as the place of birth for those born in Jerusalem.

At the heart of this case is a 2002 amendment to the FRAA that sought to override this State Department policy. In relevant part, the FRAA provision states: "For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen's legal guardian, record the place of birth as Israel."

The District Court dismissed the case, ruling that it presented a nonjusticiable political question on the political status of Jerusalem. The D.C. Circuit affirmed, elaborating that the U.S. Constitution gives the Executive "the exclusive power to recognize foreign sovereigns, and that the exercise of that power cannot be reviewed by the courts." 

According to the Supreme Court, the lower courts misunderstood the issue presented by the plaintiffs. All that was asked, the Court stated, was whether the plaintiffs' "interpretation of the statute is correct, and whether the statute is constitutional." This determination will require a "careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers." 

Justice Breyer dissented, noting that the case should be dismissed under the political question doctrine: "The upshot is that this case is unusual both in its minimal need for judicial intervention and in its more serious risk that intervention will bring about 'embarrassment,' show lack of 'respect' for the other branches, and potentially disrupt sound foreign policy decisionmaking."

All Party Parliamentary Group on Extraordinary Rendition et al. v. U.S. Department of Defense et al. (Apr. 2, 2012)

Click here for document (approximately 16 pages); click here for UN Counter-Terrorism Expert Statement (approximately 1 page)

The U.S. District Court for the District of Columbia has dismissed a case brought by an elected member of the U.K. Parliament, a U.K. parliamentary group, and an American attorney challenging the refusal by the U.S. government to disclose certain documents to them pursuant to the Freedom of Information Act ("FOIA"). The Court ruled that because the plaintiffs are representatives or subdivisions of a foreign government entity, they were barred from obtaining U.S. government documents under FOIA, which exempts members of the intelligence community from disclosing information to foreign government entities.

The plaintiffs are Andrew Tyrie, a U.K. parliament member, the All Party Parliamentary Group on Extraordinary Renditions ("APPG") (chaired by Mr. Tyrie), and Joe Cyr, their U.S. legal representative. They requested, under FOIA, materials from several U.S. government agencies regarding the U.S. government's extraordinary rendition program and the United Kingdom's involvement in extraordinary renditions, secret detentions, and coercive interrogation of suspected terrorists. The U.S. government agencies--the Central Intelligence Agency, the Departments of Homeland Security, Justice, State, and Defense, the Federal Bureau of Investigation, and the National Security Agency--all rejected the request, basing their decision on the exception to FOIA. The plaintiffs brought this action to challenge their denial.

The Court first acknowledged FOIA's purpose to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Before 2002, this broad aim was restricted by the nature of documents requested, rather than the identity of those seeking disclosure. In 2002, however, FOIA was amended to include the "foreign government entity exemption," which is at the heart of this case. Acknowledging that the challenge was a matter of first impression, the Court went on to apply rules of statutory interpretation to determine the meaning of the statute.

The Court agreed with the U.S. government that Mr. Tyrie was a representative of the U.K. government, that APPG was a subdivision of a foreign government entity, and that Mr. Cyr was their U.S. representative. While the Court admitted that the "public at large" could have requested and obtained the documents in question without being subject to the FOIA exemption, it nonetheless concluded that it "is not authorized to follow the logic of the policy it would enact if it could rewrite the law from scratch." Instead, the Court had "to follow the logic of the statute as it is written."

The UN Special Rapporteur on human rights and counter-terrorism, Ben Emmerson, issued a statement critical of the U.S. decision. He said, according the Office of the High Commissioner for Human Rights press release, that "[t]he decision is disappointing because it flies in the face of the principles of best practice for the oversight of intelligence services compiled by the former Special Rapporteur on counter-terrorism and human rights at the express request of the UN Human Rights Council."

Inter-American Commission on Human Rights Admits First Guantanamo Case (March 30, 2012)

Click here for press release (approximately 1 page)

According to the Center for Constitutional Rights press release, the Inter-American Commission on Human Rights ("IACHR") has approved at its 144th regular session meeting the admissibility report in the case of DjamelAmeziane. Ameziane is an Algerian detainee who has been imprisoned at the U.S. Naval Station at Guantanamo Bay, Cuba, for ten years without charges or a trial. This is the first time the IACHR has decided to hear a Guantanamo detainee case.

U.S. - Korea Free Trade Agreement Enters Into Force (Mar. 15, 2012)

Click here for press release (approximately 1 page)

On March 15, 2012, the U.S.-Korea Free Trade Agreement entered into force. According to a U.S. Department of State press release, this marks “an historic milestone that will lead to even more trade and investment between our two countries.” The Agreement is meant to improve market access for U.S. products in Korea while increasing opportunities for Korean companies in the United States. 

While the Agreement was originally signed on June 30, 2007, the governments approved the Agreement only last year (U.S. Congress on October 12, 2011, and Korea’s National Assembly on November 22, 2011).

Judge Theodore Meron and Hassan BubacarJallow Appointed as President and Prosecutor of the International Residual Mechanism for Criminal Tribunals (Mar. 1, 2012)

Click here for document (approximately 1 page)

According to a press release provided by the International Criminal Tribunal for Rwanda ("ICTR"), UN Secretary-General Ban Ki-moon has appointed Judge Theodore Meron as President of the International Residual Mechanism for Criminal Tribunals ("Mechanism"), and the UN Security Council has appointed Hassan BubacarJallow as Prosecutor of the Mechanism.

The Mechanism was created by the UN Security Council in 2010 to complete several essential functions of two UN criminal tribunals--the International Criminal Tribunal for the former Yugoslavia ("ICTY") and the ICTR--after their closure. The Mechanism is scheduled to commence operations in July 2012 (ICTR branch) and July 2013 (ICTY branch).

U.S. President Obama Executive Order -- Blocking Property of the Government of Iran and Iranian Financial Institutions (Feb. 6, 2012)

Clickhere for document (approximately 2 pages)

President Obama has issued an Executive Order blocking additional property belonging to the Iranian government and its financial institutions. According to a White House press release, the President has concluded that Iran's conduct and policies are a threat to U.S. national security, foreign policy, and economy.

According to President Obama, additional sanctions are justified for several reasons, including "the deceptive practices of the Central Bank of Iran and other Iranian banks to conceal transactions of sanctioned parties, the deficiencies in Iran's anti-money laundering regime and the weaknesses in its implementation, and the continuing and unacceptable risk posed to the international financial system by Iran's activities."

World Court Elects President and Vice President (Feb. 6, 2012)

Click here for press release (approximately 1 page)

According to the International Court of Justice ("ICJ") press release, the ICJ has elected two ASIL members to serve as the Court's President and Vice-President. Judge Peter Tomka (Slovakia) was chosen as the President and Judge Bernardo Sepulveda-Amor (Mexico) as the Vice-President of the Court. They will each serve for a term of three years.

In November and December 2011, the UN General Assembly and the UN Security Council voted to fill five seats that became vacant on February 6, 2012.

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