November 1st, 2009 at 10:07pm
On Thursday (10/29), the European Court of Human Rights (ECtHR) released its ruling on three cases concerning disappearances in Chechnya. In one of the cases, the victim, Mayrudin Khantiyev, had been abducted from his home by a group of masked men. In the other two cases, the victims, Yusup Satabayev and Kazbek Vakhayev, disappeared while in Russian detention. In all three cases, the Court rejected Russia’s arguments that the men had not been under Russian control at their time of disappearance and awarded the victims’ families a combined total of 130,540 euros for Russia’s violations of the victims’ rights under the European Covenant on Human Rights.
These cases fall in a steady stream of petitions to the Court concerning events in Chechnya—by some estimates up to 400. The Court has now issued judgments in 120 of these cases and has developed evidentiary presumptions for the Chechen context, which it applied to the cases at hand.
For example, the Court has before held that it will draw a negative inference from Russia’s refusal to turn over investigative reports—despite the fact that Russia’s domestic law bans the government from doing so. The Court relied on such an inference to reject Russia’s claims that Satabayev and Vakhayev had been released from Russian detention before they disappeared. Furthermore, the Court made reference to factual presumptions arising from Russia’s “exclusive control” of the area from which Khantiyev was abducted—as well as Russian guards’ “blatant passivity” in response to the event—in rejecting Russia’s contention that Khantiyev’s abductors had not been Russian agents.
In analyzing claims relating to the victims’ right to life, the Court referred to a much stronger evidentiary presumption that it first developed in the 2006 case of Imakayeva v. Russia: “[I]n the context of the conflict in the Chechen Republic, when a person is placed in detention without any subsequent acknowledgement of the detention, this can be regarded as life-threatening.” In other words, the Court will presume someone dead when it is established that they disappeared under Russian control.
Ole Solvang, Executive Director of the Russian Justice Initiative, suggests that such victim-friendly evidentiary presumptions have developed in the Chechen disappearance context due to the fact that “[t]he frequent lack of evidence concerning the fate of the victim and the identity of the perpetrators makes it difficult for a court to hold individuals responsible for the disappearance of a person.” The problem is also widespread, with a Human Rights Watch (HRW) report from 2005 already estimating that some 5,000 people had disappeared in Chechnya at the hands of military and security forces since the outbreak of hostilities in 1999—occurrences that in the aggregate HRW calls a crime against humanity.
HRW’s allegations, based not on human rights law but rather on the laws of armed conflict or international humanitarian law (IHL), remind us that the line of Chechen cases before the ECtHR are part of a larger trend of victims of wartime atrocities turning to human rights tribunals to air their claims in the absence of effective enforcement for the laws of war. Last summer’s armed conflict in South Ossetia, for example, has given rise to a flurry of additional cases before the ECtHR as well as a claim by Georgia before the International Court of Justice (ICJ) that Russia’s actions violated the Convention on the Elimination of Racial Discrimination—a case that the ICJ accepted on the bases of the Convention even though it would not have been able to hear it without Russia’s consent had it been brought under IHL.
There are different views on the merits of translating wartime activities into claims under human rights instruments designed for peacetime, but one result of the trend is clear from the ECtHR’s treatment of the Chechnya cases. While IHL generally applies different law to different individuals based on their status as a civilian or member of an armed group, human rights courts seem generally willing to substitute their functional tests that look beyond membership to the individual characteristics of the victim. In the present three cases, for example, the Court made no distinction between Satabeyev, who had been a member of a rebel group, and the other two victims, who had not.
In other cases, the Court has further proved willing to enforce the protections provided by human rights law even when IHL would explicitly have offered lesser protection. For example, in the 1996 case of Bazorkina v. Russia, the Court found that a rebel detained while in active combat enjoyed the extensive procedural rights afforded by the Convention—as opposed to the low level of protection provided to combatants in non-international armed conflicts by Article 3 common to the 1949 Geneva Conventions.
Notwithstanding their legal victories, family members of victims in Chechnya still bemoan Russia’s continued unwillingness to help them locate the bodies of their loved ones, according to a HRW report published last month. Nevertheless, with some 300 cases still pending before the ECtHR on the Chechen conflict alone, as well as new cases from the South Ossetian conflict now on the dockets of the ECtHR and ICJ, it is unlikely we will soon see the end of war victims turning to human rights law for reparation.
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November 1st, 2009 at 03:03pm
In Case C-386/08, (1) Advocate General(2) Bot delivered his advisory opinion to the European Court of Justice (ECJ). Bot argues that the ECJ should not extend full faith and credit (3) to the Israeli customs authorities as to the authenticity of documents of origin of goods from the occupied territories. As a consequence, Bot would impose no legal duty to accept as presumptively true(4) statements of the Israeli customs authorities regarding goods originating in the Israeli settlements in the occupied territories of the West Bank.(5) Israel asserts that goods originating in the occupied territories are Israeli and entitled to the benefits of the customs union agreement between Israel and the E.U. Though the E.U. has a customs union agreement with both Israel(6) and the P.L.O.,(7) the benefits of those agreements cannot extend to goods originating in the occupied territories unless certified by the P.L.O. Essentially, the Israeli settlements in the occupied territories fall outside of Israel-EU agreements coverage – and within the Israel-PLO agreement’s coverage. Had the certificate of origin issued from the relevant Palestinian authority the goods would almost certainly have enjoyed the exemption from custom’s duties.(8)
The case arose out of a preliminary reference to the ECJ from the German tax court (Finanzgericht) for Hamburg. Brita GmBH, a German company, contested the customs duties imposed by Germany on imported goods from settlements in the occupied territories.(9) The German court specifically asked whether the goods could be granted the benefit of the the EC-Israel or the EC-PLO agreement when certified as of Israeli origin by Israel.(10) The referring court believes that the goods, whether originating in Israel or Palestine, should be subject to the exoneration of customs duties.(11) The advocate general disagrees first, on the terms of the treaty,(12) and second because to do so would not respect the sovereignty of the relevant Palestinian authorities. The Advocate General analogizes this case to early E.C. caselaw(13) (Cyprus(14)) where a result similar to the one he advocates was found.
The Opinion, which seems persuasive, will likely influence the ECJ’s impending final decision. It is not without implications for regional stability. Free trade makes war less likely by encouraging prosperity and interdependence, by breaking down isolation. To that end, the E.U. established a partnership with the countries of the Mediterranean basin to create free trade and encourage democracy and human rights’ protection(15) via bilateral agreements following a uniform model providing for free trade.(16) For the ECJ to grant the exemption of customs duties based on Israeli rather than Palestinian authority would be an act of de facto recognition of the legitimacy of the Israeli occupation as well as ignoring the plain meaning of the treaty. Hopefully the Israeli and Palestinian authorities will coordinate and resolve their differences, somehow.
Notes
(1)Brita, GmbH v Hauptzollamt Hamburg Hafen, 29/Oct./2009 Available at: http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-386/08 (Opinion) (Hereafter: Brita, A.G.)
(2)The Advocate General is a post which has no real parallel in U.S. law. The Advocate General writes advisory opinions which can be analogized to an “amicus curiae” brief. The ECJ may or may not take the Advocate General’s opinion into account and may or may not use in reaching its final verdict. The Advocate General’s opinion has no binding authority.
(3) Brita, A.G., para. 75-77. The decision does not however use the U.S. term “full faith and credit” however the conceptual shorthand analogy holds.
(4) Brita, A.G., Para. 83-84.
(5) A similar analysis would apply to goods originating in the Gaza strip.
(6) OJ 2000 L 147, p. 3, the ‘EC-Israel Agreement’.
(7) OJ 1997 L 187, p. 3, the ‘EC-PLO Agreement’. Article 73 of the agreement states that it is to apply to the territories of the West Bank and the Gaza Strip.
(8) Brita, A.G., para. 134.
(9) Brita, A.G., para. 2.
(10) Brita, A.G., para. 5.
(11) Brita, A.G., para. 106.
(12) Brita, A.G., para 108, citing Article 83 of the
EC-Israel Agreement.
(13) Anastasiou, Case C 432/92 [1994] ECR I 3087.
(14) Agreement annexed to Council Regulation (EEC) N° 1246/73 of 14 May
1973 (OJ 1973 L 133, p. 1, the ‘EEC-Cyprus Agreement’).
(15) Brita, A.G., para. 9, 10.
(16) Article 8 of the EC-Israel Agreement provides that ‘customs duties on imports and exports, and any charges having equivalent effect, shall be prohibited between the Community and Israel. This shall also apply to customs duties of a fiscal nature’.
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November 1st, 2009 at 02:54pm
Turkey is having a bad day at the European Court of Human Rights (ECtHR). The Court ruled in one decision that Turkey was liable for wrongful death of a Cypriot who in uniform but unarmed crossed the U.N. Buffer zone. Likewise, the Court ruled that Turkish censorship of Turkish newspapers was too restrictive.
In Kallis and Androulla Panayi v. Turkey (1) the Court ruled that Turkey violated Art. 2 of the European Convention on Human Rights (ECHR). The court rejected Turkey’s defences that the plaintiff ought to have first exhausted local remedies(2) as local remedies would have been ineffective(3) awarding monetary damages to plaintiffs under Art. 41 ECHR.
In Ürper and Others v. Turkey(4) the Turkish government had suspended publication of several newspapers which it regarded as publishing propaganda for the Communist party of Kurdistan (PKK), a group it regards as terrorist. The Court used the familiar general principle of proportionality (legitimate purpose, rational means, least restrictive means) test to determine whether the invasion of the fundamental right to freedom of press was legitimate. The court determined that the ban on publication was an interference in the fundamental right(5) prescribed by law,(6) that the end sought by Turkey was a legitimate aim of preventing disorder and crime,(7) but that the means used to that end were not necessary interferences.(8) That is, using the more familiar general principle of proportionality terms, the invasion of the fundamental right was not the least restrictive one possible.
As well as representing the sorts of steps which Turkey must consider taking as it seeks accession to the E.U. the case is relevant as an example of the globalization of fundamental rights as legitimators of the state and as the objective of the international legal system. Further, the Ürper case is one more example of the rise of proportionality as the method to adjudicate constitutionalized fundamental rights. The cases can thus be seen as examples of contemporary trends in the globalization of legal consciousness, the convergence of norms to a global ius commune and as of political interest too.
(1) Application no. 45388/99 (27/Oct. 2009).
(2) Kallis at para. 28.
(3) Kallis at para. 35.
(4) Applications nos. 14526/07, 14747/07, 15022/07, 15737/07, 36137/07, 47245/07, 50371/07, 50372/07 and 54637/07.
(5) Ürper, para. 24.
(6) Ürper, para. 28.
(7) Ürper, para. 32.
(8) Ürper, para. 44.
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April 27th, 2009 at 07:34am
The Obama Justice Department has released four memos detailing the harsh techniques used on some detainees during the Bush administration. The memos – three written in 2005 and another in 2002 – give legal support for various coercive techniques and conclude that the CIA’s methods were not “cruel, inhuman or degrading” under international law.
However, the memos give specific authorization for such questionable tactics pushing detainees against a wall, facial slaps, cramped confinement, stress positions and sleep deprivation.
President Obama assured CIA agents that those who used harsh interrogation techniques on terrorism suspects “relying in good faith upon legal advice from the Department of Justice” during the Bush era will not be prosecuted.
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April 20th, 2009 at 02:34pm
Spanish Attorney General Candido Conde-Pumpido has declined to open an investigation in Spain’s National Court into whether six top Bush Administration officials sanctioned torture at Guantanamo Bay. While Spain’s courts do have jurisdiction in the case of war crimes and torture under the doctrine of “universal justice.” Conde-Pumpido declared that the most proper forum for such an investigation would be in United States’ court system, not Spain’s.
The “Bush Six”, as they have come to known, have been accused of using legal opinions to advise the Bush Administration that it would be acceptable to ignore the Geneva Conventions and narrowly defining which interrogation techniques constituted torture. They are named in a complaint filed by several human rights lawyers.
Spanish Judge Baltasar Garzon, who is presiding over the case, is most well-known for indicting Chilean ruler Augusto Pinochet over the objections of prosecutors. However, Conde-Pumpido is Spain’s top law-enforcement official and would have the final say. A formal announcement is expected April 17.
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April 20th, 2009 at 07:46am
President Obama recently met as many as 34 leaders of democratically elected nations of the Western Hemisphere to consider and discuss an array of issues that directly affect them. These issues include the current economic crisis, energy issues, climate change, and personal security. This meeting was held at the Summit of the Americas from April 17–19 in the port of Spain, in Trinidad and Tobago. Recently, the frequency of violent activities along the US- Mexican border has drastically increased, forcing the various Central American nations and the US to spend as much as $1.4 billion in order to enhance law-enforcement training and military equipment, as well as to improve intelligence cooperation.
President Obama also announced that he will seek US senate ratification of an inter-American arms trafficking treaty designed to stop the flow of illegal firearms and ammunition to drug cartels and other destructive groups in the Western Hemisphere. The leaders believe that by taking these drastic steps, the illicit transnational arms market that fuels the violence associated with drug trafficking, terrorism, and international organized crime will diminish. In order to further assist this effort, Homeland Security Secretary Janet Napolitano announced the appointment of Alan Bersin, a former federal prosecutor, to coordinate efforts to reduce drug-related crime along the US-Mexican border.
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April 16th, 2009 at 01:31am
On Thursday April 9, the French National Assembly rejected an Internet piracy bill that punished repeat illegal downloaders. The bill won preliminary parliamentary approval but was eventually defeated by a vote of 21-15. Under the bill, a first time offense of downloading illegal material would be punished by a warning and a second time offense would be punished by up to a one-year ban. The bill was supported by the International Federation of the Phonographic Industry, which represents the recording industry and opposed by the UFC-Que Choisir, a French consumer interest group.
Other nations in Europe have been struggling with balancing the protection of copyright materials and privacy concerns. In January 2008, the European Court of Justice found that telecommunication companies in Spain did not have to share the identities of Internet users suspected of illegal file sharing. A Belgium court in June 2007, on the other hand, ordered a file sharing website to filter users found sharing copyrighted material.
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April 15th, 2009 at 09:57am
On Wednesdsay, current Lebanese Prime Minister Fuad Siniora’s government agreed to hand over relevant case files to the U.N.’s Special Tribunal for Lebanon. The tribunal convened last month to investigate the 2005 murder of former prime minister Rafik Hariri. The tribunal may now request the transfer of the suspects–four Lebanese generals–to U.N. custody. Initial reports released by the U.N. point to the possible involvement of the Syrian intelligence service in the assassination, but Syria has repeatedly denied this. Leaders of Hezbollah, the opposition party and militia which is supported by the Syrian government, have expressed their reservations in complying with the tribunal’s request. Their lack of cooperation could halt U.N. efforts, because Hezbollah may control the government after June’s elections. The Hague is pressing the case despite the potential roadblock caused by the uncertain political climate. The tribunal is the first U.N. court to try suspects for specific terrorist acts. The murder of Hariri and 22 others in 2005 resulted in street protests which led to the end of Syria’s military occupation of Lebanon.
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April 14th, 2009 at 09:28am
On Thursday, Iranian President Mahmoud Ahmadinejad announced advances in Iran’s nuclear power productions capabilities including two new types of centrifuges and a nuclear fuel production plant. Ahmadinejad stated that Iranian nuclear authorities “have announced that the various cycles of nuclear fuel management are in our grasp in a comprehensive and domestically produced way.” The head of Iran’s Atomic Energy Organizationlaimed c that Iran now has approximately “7,000” centrifuges in its Natanz facility. In February, the International Atomic Energy Agency reported that Iran had only 5,600 centrifuges.
Iran’s new high-speed centrifuges promise to increase Iran’s low-enriched uranium supply. Additionally, a uranium pellet factory will be able to produce a yearly total of 10 tons of fuel rods for various reactors in Iran. The United Nations Security Council has pleaded with Iran to cease its production of nuclear materials that could be used for weapons. However, the Iranian government maintains that it is merely increasing Iran’s supply of energy. In order to create a nuclear weapons program, Iran would have to take the drastic steps of expelling weapons inspectors, withdrawing from international treaties, and creating further enrichment facilities.
In response to the announcement, the White House declared that US government officials would regularly take part in nuclear talks between Iran and Europe, Russia, and China. Under George W. Bush, the United States was not part of these negotiations until last year. State Department spokesman Robert Wood explained, “Iran is entitled to have a civilian nuclear program, but with that program comes responsibilities.”
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April 13th, 2009 at 12:30pm
A court in Russia ruled in February against Telenor, a Norwegian telecom company, in favor of a Russian mobile-phone company, Vimpelcom. The court held that Telenor had caused Vimpelcom a loss of $1.7 billion when it delayed the company’s move into the Ukranian market. As a result, the court froze Telenor’s 29.9% stake in Vimpelcom and now Russian authorities are ordering Telenor to pay the $1.7 billion in damages or risk losing its stake all together. If Telenor refuses, Russian bailiffs can sell their stake to pay the damages.
Telenor believes the order is simply a legal pressure tactic from the Russian company Alfa Group which owns 44% of Vimpelcom, and states that it will not pay the damages. Instead, the company plans to appeal the order in the Moscow Arbitration Court. The Norwegian government has also sought help from Moscow since they themselves own 54% of Telenor. However, talks between the Norwegian and Russian government have had little success. Russian officials have stated that they will not intervene in a private dispute.
Many argue that the current case is not without precedent in Alfa’s track record. The company has been described as “aggressive” and a U.S. judge referred to Alfa’s “history of ‘vexatious and collusive’ litigation and failure to comply with court orders” in his ruling against the company. There is also growing fear among foreign investors that the global financial crisis has worsened Russia’s already unfavorable legal environment. Investors are concerned that powerful Russian businesses will use their local leverage to abuse the rights of their foreign partners.
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