November 15th, 2009 at 12:26am
In Shabani v. Switzerland (application no. 29044/06), a 4-3 decision, the European Court of Human Rights (ECtHR) ruled last Thursday (11/5) that a lengthy pre-trial detention did not violate the right to liberty of a suspected leader of a drug trafficking organization.
The applicant, Mr. Ragip Shabani, was denied the option of posting bail and was then subject to a pre-trial detention lasting over five years. He had originally been arrested on August 2, 2003, on suspicions of taking a leading role in a drug trafficking operation believed to involve fourteen-hundred kilograms of heroin and cocaine. After losing his appeal concerning Switzerland’s decision not to allow him to post bail, he turned to the ECtHR in 2006 while investigations were still underway, claiming that his lengthy detention violated his right to liberty. Subsequently, Mr. Shabani was indicted in December 2007, and his trial was scheduled for March 2008 but was later delayed until August 2008 due to a lack of adequate security staff. He was convicted on October 30, 2008.
The ECtHR recalled its previous findings that a government’s reasonable suspicion that someone had committed an offence could only justify detention for a limited period of time; after that time had lapsed, the authorities would have to give “relevant” and “sufficient” reasons for the continued detention and show that they had displayed “special diligence” in the conduct of the proceedings. The Court found that the government’s reasons for the continued detention satisfied these additional conditions. The government’s concerns that Mr. Shabani might abscond or collude if given the chance to post bail, as well as the potentially dubious origin of the funds used, justified its denial of that opportunity. And the proceedings were understandably long, since investigating an underground international criminal organization is a complex operation; in this regard, the Court found it especially significant that there had been no periods of inactivity during the proceedings.
In a short dissent, three judges rejected the “no period of inactivity” logic, pointing out that it could potentially justify indefinite detentions. They further argued that the delay in the trial’s starting date had been insufficiently explained; after more than four years with Mr. Shabani in detention, Switzerland should have been particularly cognizant of the need to start trial immediately after the indictment was filed. In their view, Switzerland’s lack of diligence, coupled with the lengthy detention, constituted a violation of Mr. Shabani’s right to liberty.
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November 14th, 2009 at 09:19pm
The Kimberley Process (KP) held a Plenary meeting in Swakopmund, Namibia last week, where it adopted a work plan for the Marange diamond mining fields in Zimbabwe, agreed to monitor “conflict diamonds” from the Côte d’Ivoire following UNSC Resolution 1893 (2009), and made decisions on the general enforcement mechanism of the KP rules. The Democratic Republic of Congo will be the 2011 Kimberely Process Chair.
The KP initiative began after 2000 discussions between interested governments, the diamond industry, and members of civil society of how to combat “conflict diamonds,” which have been used to finance wars in Africa’s diamond-rich countries. By 2002, the KP adopted the Kimberly Process Certification Scheme (KPCS), which requires participants to rigorously control diamond exports and imports and incorporate internal controls for the production and trade of diamonds. To ensure compliance, the KP requires statistical reporting on a regular basis in addition to other verification measures. With the Support of the United Nations and the European Community, the KP now has 49 Participants, with the members of the European Community counted together as a single member. The participants include all key centers for the production, polishing, and trade of diamonds.
The KP’s review of the Marange mining fields occurred as a result of recent reports suggesting non-compliance and human rights abuses. These reports followed the Zimbabwean government’s takeover of the fields during operation “Hakudzwoki” (no return) back in November of 2008. As a result, the KP adopted a double-track approach, using scientific measures to halt the flow of conflict diamonds from the area and sending a high-level KP envoy to the area. As part of the action plan adopted at the Swakopmund Plenary meeting, Zimbabwe agreed to bring mining into compliance with the KP so that the diamonds can be used for economic development rather than war.
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November 13th, 2009 at 07:21pm
The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) reduced the sentence for former Bosnian Serb army general Dragomir Milosevic from 33 to 29 years on Thursday. The tribunal found that the trial court had erred in its 1997 ruling and that there was insufficient evidence that Milosevic had ordered three shellings of civilians during his command of the siege of Sarajevo from 1994 to 1995.
Milosevic was a commander of the Bosnian Serb Army’s Sarajevo Romanija Corps (SRK), which laid siege to Bosnia’s capital, Sarajevo, for 44 months prior to the end of the Bosnian Conflict in November 1995. During the siege, which was the longest blockade in Europe since the end of WWII, snipers from the SRK routinely shot at civilians and troops shelled the city. Estimates by human rights organizations put the number of civilians killed at 10,000, approximately 1,500 of whom were children. Milosevic assumed command of the SRK from Stanislav Galic in August 1994 and held that position for fifteen months until the conflict’s end. Galic, the only criminal convicted of war crimes to have received a sentence of life imprisonment on appeal from the ICTY, was sentenced in November 2006.
Milosevic was indicted in 1998 and surrendered to the ICTY in 2004. He was convicted in 2007 of war crimes and crimes against humanity, including murder, inhumane acts, and acts of terror. Milosevic had appealed his 2007 conviction, while the prosecution had requested that the tribunal increase his sentence to life imprisonment. His appeal was heard this July, and the Appeals Chamber’s decision was announced on Thursday, November 12.
The Appeals Chamber found that there was not sufficient evidence to draw the inference that Milosevic ordered the sniping of civilians during the siege, or that he specifically ordered three shelling attacks on certain civilian sites. The tribunal did find, however, that Milosevic was nonetheless responsible for failing to stop and punish the crimes of his troops, and that he encouraged the commission of crimes against civilians through “maintaining and intensifying the campaign directed at the civilian population in Sarajevo.” It therefore reclassified his convictions for planning and ordering the sniping of the civilian population with a conviction, under Article 7(3) of the ICTY Statute, for failing to prevent and punish the crimes of his subordinates. The Appeals Chamber held that although the reclassification of Milosevic’s sniping convictions did not itself warrant a reduction of his sentence, the reversal of his convictions for the shelling incidents did have a limited impact on his over culpability. Dismissing the prosecution’s appeal entirely, the court accordingly reduced Milosevic’s sentence to 29 years. Judge Lia Daqun issued a partial dissent regarding the crime of terror conviction and certain sentencing issues.
Milosevic, 67, is no relation to the late Yugoslav president Slobodan Milosevic
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November 12th, 2009 at 03:10pm
World Trade Organization Director-General Pascal Lamy last Monday called on the international community to reach a robust climate change agreement during Copenhagen Climate Conference next month. Director-General Lamy carefully expressed preference for an international accord coming out of Copenhagen, one which the WTO would seek to help implement. This approach, he asserted, would not only result in more effective climate change mitigation but would also relieve the WTO of the need to address the trade implications of unilateral or regional climate change efforts piecemeal.
Explicitly reinforcing his speech before a gathering of trade ministers in Bali two years ago, Lamy rejected a “trade-first, climate-second” approach for the WTO. Instead, he asserted that the WTO would welcome a clear, consensual agreement on principles and methods for mitigating climate change coming out of Copenhagen. Such an agreement would allow the WTO to take its cues from the expressed will of the international community and prevent the WTO from having to adjudicate disputes arising out of the fragmentary national or regional climate change mitigation that would inevitably take place in the absence of a clear Copenhagen accord. That clarity and statement of will is necessary, he said, to combat “the single biggest challenge to civilization as we know it.”
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November 8th, 2009 at 11:22am
The hearing on the confirmation of charges against suspected Darfur war criminal Bahr Idriss Abu Garda at the International Criminal Court (ICC) ended on October 30th.Abu Garda, 46, is a leader of the United Resistance Front (URF), a rebel group fighting against the Sudanese government. He is suspected of war crimes allegedly committed during the attack on the African Union peacekeeping mission at the Haskanita military base in North Darfur on September 29, 2007.The attack resulted in the death of twelve UN peacekeepers and serious injury to eight others. Abu Garda’s alleged crimes, which fall under article 25(3)(a) of the Rome Statute, include murder, pillaging, and directing an attack against a peacekeeping mission.
Closing statements were made on October 29th and 30th. The Legal Representatives of the Victims emphasized that the orphans, widows, and survivors of the attack could never be truly compensated for their losses. “Victims will always be victims, but to see that justice is done will give them some comfort,” said Akin Akinbote, one of the victims’ four Representatives.
Prosecutor Fatou Bensouda alleged that Abu Garda was responsible for planning and executing the attack, in which 1,000 armed URF rebels attacked a base manned by African Union peacekeeping troops. The Prosecution further argued that their evidence established Military Group Site (MSG) Haskanita’s protected status under international law at the time of the attack, and that its personnel and property were entitled to the protection accorded to civilians. They noted that the Defence had presented no evidence to contradict this assertion.
Karim Khan, Abu Garda’s Defence counsel, argued that his client was not responsible for the September 29, 2007 attack on Haskanita. He also argued that Haskanita did not enjoy protected status when the attack occurred.
The court has 60 days from October 30th to determine whether the evidence against Abu Garda is sufficient for the case to go to trial. Abu Garda is the first alleged war criminal to appear before the ICC for crimes in Sudan.
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November 7th, 2009 at 05:28am
In Case C-63/08, Virginie Pontin v T-Comalux SA (29 October 2009) the European Court of Justice (ECJ) ruled that a 15 day time bar on claims for wrongful dismissal due to pregnancy was to brief to meet the standard of the principle of effective judicial protection of an individual’s rights under Community law. Articles 10 and 12 of Council Directive 92/85/EEC of 19 October 1992 and Article 2 of Council Directive 76/207/EEC of 9 February 1976 provide the substantive basis for EU protection of women’s rights particularly with respect to the workplace. EU Directives set out binding policy goals to be implemented by the Member States leaving the means to those ends to be implemented by the Member States through national legislation. The Directives here set out goals for workplace safety, maternity leave, and prohibitions of dismissal of workers, as well as establishing redress mechanisms. In the case at bar the remedy under national law for wrongful dismissal was time barred after just 15 days from posting of notice of dismissal. The ECJ found that time bar likely too brief to meet the demands of the Pregnant Worker’s Directive, strongly implying the 15 day time limit in Luxembourgeois law failed to meet the demands of the general principle of effective judicial protection and therefore also implying that this very brief time delay was an inadequate implementation by the Member State (Luxembourg) of the EU Directives finding for plaintiff.
For more information:
Synopsis:
Full text of Case C?63/08.
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November 7th, 2009 at 03:44am
The European Court of Human Rights (ECtHR) ruled Tuesday (11/3) that Italy’s display of crucifixes in public schools was in violation of the European Convention on Human Rights’ protection of the rights to education and freedom of religion.
The applicant, Ms. Soile Lautsi, petitioned the Court after Italy had rejected her requests to take down crucifixes that were prominently displayed in her children’s classrooms in accordance with Royal Decrees dating from the 1920’s. Responding to Italy’s argument that crucifixes had become a symbol of secular Italian history and culture, the Court relied on its former holding in Buscarini et al. v. Saint-Marin that the social and historical meaning of a text used in oath-taking did not deprive the text of its religious character. The Court noted that the crucifixes could easily be interpreted as religious signs and that children could feel that their school environment was Catholic; this point was further aggravated by the fact that Catholicism was the majority religion in Italy. As students could not avoid the classrooms without undue hardship, the Court found that the presence of the crucifixes thus interfered with the right of parents to educate their children in accordance with their convictions, and the right of children to believe or not to believe.
The Court awarded the applicant 5,000 euros for moral damage, considering that a mere declaratory judgment would not be sufficient as Italy had not expressed its readiness to review the relevant Royal Decrees.
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November 6th, 2009 at 07:45pm
The interim government of Honduras has filed a complaint against Brazil in the International Court of Justice (ICJ), the Court announced on October 29. The complaint arises from events surrounding the surprise return to Honduras of Manuel Zelaya, the deposed president, who entered the country on September 21 and took refuge in the Brazilian Embassy in Tegucigalpa. Specifically, Honduras charges that Mr. Zelaya and an unknown number of other Honduran citizens have been using the Embassy as a “platform for political propaganda” with the complicity of Embassy staff and thereby “threatening the peace and internal public order of Honduras.” Honduras has requested declaratory and injunctive relief from the ICJ.
The legal bases of Honduras’s complaint are Article 2 (7) of the UN Charter, which reserves to member states matters which are “essentially within [their] domestic jurisdiction,” and the 1961 Vienna Convention on Diplomatic Relations. As a practical matter, Honduras’s complaint is only one element of a broader political and diplomatic offensive aimed at preventing Mr. Zelaya from returning to power before the upcoming presidential elections scheduled for November 29. It is unclear whether the ICJ will agree to hear the complaint, which was filed by an interim administration that many international observers consider illegitimate. Current efforts toward national reconciliation may also determine whether the case goes forward.
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November 6th, 2009 at 11:25am
Pascal Lamy, Director-General of the World Trade Organization, recently released a statement describing the progress of the Doha Round and outlining plans for the continued negotiations in Geneva. Overall, Lamy reports that while the negotiations remain committed to their ambitions, there has been little tangible progress in the past week. He also emphasizes that ambitions will be best served in the future through multilateral text-based negotiations.
In the area of Agriculture, members are discussing market access issues with regard to tariff caps and tariff-rate quotas, while also developing a template for scheduling commitments. Non-Agricultural Market Access (NAMA) deliberations are occurring in several different formats, with both text-based debate and open-ended discussion over non-tariff barriers (NTBs) to trade.
Services discussions will now focus on domestic regulation through intensified text-based negotiations. Meanwhile, the Rules Group is honing in on anti-dumping and subsidies guidelines as well as regional trade agreements (RTAs). Deliberation on geographic identifications (GIs) for wine and spirits will also be more focused as members address four specific questions posed by the chair to encourage progress.
A new trade facilitation agreement is under formulation as members work to consolidate General Agreement on Tariffs and Trade (GATT) Articles for further negotiation. Additionally, the Committee on Trade and Environment Special Session (CTESS) has allowed members to discuss environmental goods and services during a September workshop and is now encouraging members to highlight environmental goods of interest.
Small Group negotiations will continue on the Monitoring Mechanism for Special and Differential Treatment, occasionally requiring open-ended meetings for group debriefing. The Dispute Settlement Body (DSB) will now discuss post-retaliation and compliance, having addresses transparency, amicus briefs and remand earlier this year.
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November 1st, 2009 at 10:17pm
The legality of the U.S. Government’s use of unmanned Predator drones to target militants in Afghanistan and Pakistan has recently come under increasing scrutiny, as a prominent U.N. representative called the American refusal to discuss the program “untenable”. Philip Alston, the U.N. Special Rapporteur for Extrajudicial, Summary, or Arbitrary Executions, made his remarks while reiterating requests for the U.S. to provide information on the legal rationale for its use of the drones, the mechanisms it uses to review the program, and the precautions it takes to make sure its air strikes conform with international law.
The debate over the legality of remote-controlled air strikes turns largely on the question of whether the American pursuit of terrorists represents an active armed conflict analogous to a conventional war between nations. As such, the debate over the drones is one example of the broader disagreement which has resulted from the application of international humanitarian law (IHL) to the “war on terror.” IHL, which regulates armed conflict between states, requires the existence of an active conflict, and only applies within the geographic limits of that conflict. Within these limits, IHL authorizes the killing of enemy combatants, including remotely, subject to limitations meant to assure that the use of force is necessary, minimally injurious to civilians, and proportional to expected military gains. Outside a zone of active conflict, however, IHL does not apply, and the U.S. ability to kill individuals without according them due process of law is restrained by a 1976 executive order against assassinations and, arguably, by international human rights law.
While some observers would call Afghanistan a zone of active conflict, far fewer would apply that description to Pakistan, and drones operated by the C.I.A. have been active in targeting militants there, including Taliban leader Baitullah Mehsud, who was killed in August. American drones have also targeted militants in Yemen. In extending IHL to cover these strikes, supporters of the program have argued for the application of IHL wherever terrorists are found, not merely within geographically bounded zones of conflict. This is a novel argument, and as such, the use of Predators to target individuals outside the “war zones” of Afghanistan and Iraq arguably represents a violation of international law. It also represents a sharp departure from pre-9/11 U.S. policy, when C.I.A. drones were limited to conducting surveillance and the U.S. Government criticized Israel for conducting targeted killings of Palestinian militants.
Supporters of the C.I.A. program have argued that, whether or not IHL applies to the air strikes, they are lawful under both the UN Charter and the 2001 Authorization for the Use of Military Force (AUMF) as a form of “anticipatory self-defense.” But opponents point to the principles of sovereign equality and non-intervention in the affairs of other states, arguing that individuals outside active war zones should be brought to justice through domestic processes of law. The question of whether the air strikes are proportional under IHL is also debated; the New Yorker reports that the effort to kill Baitullah Mehsud involved a series of 15 air strikes killing more than 200 other people. Finally, the loosening of geographic restrictions on state-sanctioned lethal force raises the uncomfortable prospect of an amorphous, global definition of conflict, which other states or non-state actors could potentially use to target Americans.
The practical value of the C.I.A. program is also debated. While the use of Predators has been credited with eliminating numerous Al Qaeda leaders and sowing confusion within the organization, it has also led to many civilian casualties, which has rallied anti-American sentiment in the very places where the U.S. is trying hardest to win “hearts and minds.” Another criticism of the program is that electing to kill terrorists rather than capture and interrogate them reduces the intelligence the U.S. can gather on its enemies; proponents of this argument point to the potential information value of Saad bin Laden, one of Osama’s sons, who was killed by a Predator strike in Pakistan. Finally, the recent inclusion of prominent Afghan drug traffickers on the list of acceptable targets has led critics to wonder whether there is any coherent policy limiting the use of the drones to individuals who pose a direct threat to the United States.
Whatever the legal and practical arguments for or against the use of unmanned air strikes against non-state actors, they are unlikely to end in the near future. In the rugged, inaccessible areas where many militants operate, the U.S. Government often believes that it has no good alternatives to the drones. Facing resistance to its plans to increase troop levels in Afghanistan, the Obama administration may make remote-controlled warfare an ever more central part of its counterterrorism strategy.
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