Archive for category Human Rights Violations
Confirmation hearing delayed for Ntaganda: On 18 June 2013, an ICC judge announced that the confirmation hearing for DRC warlord Bosco Ntaganda is delayed until 10 February 2014. Under the Rome Statute, the confirmation hearing determines if there is enough evidence to proceed to trial. Ntaganda, who is charged with crimes against humanity, was a fugitive from the ICC for 7-years, so the judge wants to give the prosecution adequate time to prepare the case.
ICC decides that Kenya’s Ruto is partially exempt from attending trial: On 18 June 2013, ICC judges partially granted Kenyan Deputy-President William Ruto’s request to participate via video link at his trial, set to start in September. Ruto is charged with crimes against humanity relating to Kenya’s 2007-2008 post-election violence. The ICC ruled that Ruto needs to be physically present at key sessions of trial including the opening and closing of the trial, the judgment, when victims present their testimony in person, and the sentencing if necessary. ICC judges also recommended that parts of the trial should be held in Kenya or Tanzania. This ruling has no legal impact on the trial of Kenyan President Uhuru Kenyatta, who is also charged with crimes against humanity.
Hundreds protest delay of ex-Ivory Coast president’s ICC trial: On 17 June 2013, about 300 people protested the ICC’s decision to delay former Ivory Coast President Laurent Gbago’s case. Gbago is charged with crimes against humanity relating to the Ivory Coast’s 2010 post-election violence. On 3 June, ICC judges gave prosecutors more time to gather evidence against Gbago because they ruled that there was not currently enough evidence to take the case to trial. Alphonse Soro, the organizer of the protest, said he wanted to show “indignation and incomprehension” and that “no sustainable peace [is] possible without a trial.”
Gaddafi and al-Senussi to be tried in Libya in August: On 17 June 2013, Libya’s prosecutor’s office announced that Col. Muammar Gaddafi son, Saif al-Islam Gaddafi, Col. Gaddafi’s intelligence chief Abdullah al-Senussi, and other senior regime members will be tried domestically in August. The men will be charged with forming criminal gangs, inciting rape, and illegal detention. The ICC has warrants out for Gaddafi and al-Senussi for war crimes, but Libya has resisted the ICC’s extradition requests. The Libyan Prime Minister Ali Zeidan said the men would receive a fair trial. Related to this announcement, on 17 June, two former senior associates of Col. Gaddafi were acquitted of wasting public money. However, the two continue to be detained as a part of the investigation for Gaddafi and al-Senussi’s trial. (For more on this topic click here.)
Court/Tribunal: International Criminal Court
Decision Title: Decision on the admissibility of the case against Saif al-Islam Gaddafi
Chamber: Pre-Trial Chamber 1
Case Name: Prosecutor v. Saif al-Islam Gaddafi and Abdullah al-Senussi
Date: 31 May 2013
Decision Background: The case arises from a dispute between the International Criminal Court and the country of Libya regarding the admissibility of the ICC case against Gaddafi. On 26 February 2011, the United Nations Security Council referred the situation in then-revolution Libya to the Prosecutor’s Office. On 27 June 27, the Court issued an arrest warrant for Saif al-Islam Gaddafi, son of former Libyan leader Moammar Gaddafi, for his alleged role in promulgating human rights abuses against anti-government protestors during the February 2011 uprising that ultimately toppled the Gaddafi regime.
At the same time, the new government of Libya sought to try Gaddafi domestically, under Libyan national law, for actions taken against protestors during roughly the same time period as that covered by the ICC’s mandate. Conflict arose between the two jurisdictions primarily due to the obligation under an ICC arrest warrant for a country to render an ICC defendant to the custody of the court. Saif al-Islam Gaddafi is currently in Libya, which has been reluctant to hand over custody due to its desire to try him nationally.
Pursuant to this conflict, on 1 May 2012, Libya filed a challenge to the case against the defendant at the ICC, and requested that the Court postpone Libya’s extradition obligations. On 21 January 2012, the defense to Mr. Gaddafi filed an urgent request with the Court, informing the Chamber that national trial proceedings against Gaddafi had begun in Libya on 17 January 2013. The defense requested an immediate decision by the Court regarding admissibility, and that the Court request that Libya immediately surrender the defendant to the Court. The defense renewed its request on 26 April, and also asked the Court to immediately revoke the temporary postponement granted to Libya regarding Gaddafi’s surrender. In May, Libya filed a response to the defense.
The offices of the defense, Prosecutor, and OPCV all submitted filings supporting the admissibility of Gaddafi’s case at the ICC. Libya, however, contends that as a national court system that is actively investigation and trying the same activity as that covered by the ICC case, under roughly comparable similar charges and modes of liability, under the principle of complementarity, its proceedings should be privileged against those at an international court. The parties filing in favor of admissibility argued several different (and sometimes overlapping) reasons in support of admissibility, mostly questioning whether or not an investigation into the February 2011 actions was earnestly being conducted by Libya, and whether or not Libya, as a practical matter, has the capacity and willingness to conduct the proceedings against Gaddafi. A threshold question of whether the conduct charged by Libya was essentially equivalent to the charges brought up to the ICC was also raised. Finally, the defense raised numerous concerns regarding his client’s ability to receive an impartial, fair trial at the national level, given the still-charged political situation in Libya post-Revolution.
Libya maintained that the conduct charged at the national level is essentially that covered by the ICC charges, maintained that it has been conducting an ongoing investigation of Gaddafi’s case, has the ability to conduct the case against Gaddafi, and can assure a fair trial for the defendant at the national level.
Decision Review: The Chamber first re-iterated Court precedent that the state (in this case Libya) challenging the admissibility of a case in front of the ICC bears the burden of proof to show that the case is inadmissible, while also validating Libya’s claim that generally, complementarity favors national proceedings. In order to hold a case inadmissible, the Court must find that a state is able and willing to forward a national prosecution, which relates to the question of the genuineness of the state’s domestic investigations and prosecutions. When there is a question about that genuineness, the Court will evaluate petitioning state’s ability and willingness to prosecute the case nationally.
The Court found that Libya was indeed taking genuine steps to prosecute and investigate Gaddafi’s case. Under Court jurisprudence, evidence adduced under an admissibility challenge must demonstrate that the country in question is taking progressive and concrete steps to investigate, gather evidence in, and further a domestic case. Importantly, however, in response to challenges made by the defense, the Court noted that the substantive quality or merits of that evidence (in terms of proving a defendants guilt or innocence) does not have to be proven. The question is whether or not the state in question can show that it is taking steps to gather evidence at put together a case. Evidence of genuine pursuit of a case can include, but will not be limited to, a showing that the state in question has interviewed witnesses or suspects, has collected documentary evidence, or has carried out forensic analysis.
The Court found issue with a number of the evidence submitted by Libya in support of its claim. Specifically, the Court found that many of the submissions were vague or inconclusive insofar as they addressed or demonstrated whether or not Libya is carrying out a genuine investigation of Gaddafi’s case. The Court found that many submitted documents did not contain information relevant to making that determination. In particular, many documents submitted by Libya did not include specific information regarding the specific criminal conduct that the state is investigating. The Court found other summaries prepared by domestic authorities, however, more complete in their presenting the alleged conduct subject to the national investigation. Taken as a whole, given that the emphasis at the admissibility stage is not on the strength of the evidence gathered, but whether evidence exists that evidence related to the case is being genuinely pursued by the national authorities, the Court found that Libya is genuinely investigating Gaddafi’s case.
The Court also addressed the issue of whether the case against the defendant pursued by the state in question is the same case pursued at the ICC. To meet this test, the national investigation must cover the same person and “conduct” by that person. Essentially, for a case to be inadmissible at the ICC, the conduct covered in the national case must be substantively the same as that covered in the ICC indictment. As this is a fact-specific question, the Court decides this question on a case-by-case basis. However, the Court noted that given the specifics of the Gaddafi case, it is not necessary that the charges, modes of liability and indicted conduct be exactly the same between the national and ICC case. Instead, the Court looks at whether the domestic case is investigating and charging the same underlying acts that comprise the basis for the case at the ICC level. The legal characterization of the underlying acts does not have to be the same to meet the “same case” test.
Following its reasoning, the Court held that the fact that the domestic case would prosecute “ordinary” criminal charges, versus criminal charges of an “international” level, in and of itself render the case admissible before the court, as the specific charges enumerated go to the legal characterization, and not the underlying acts. In looking at the specifics of the Gaddafi case, the Court noted that the temporal time period of conduct being investigated by Libya basically parallels that time period analyzed by the ICC – namely, 15 through at least 28 February 2011, an important consideration when determining if the conduct being investigated relates to the same case. The Court noted too the even though some of the conduct investigated by Libya extends beyond the time frame used by the ICC, this is not necessarily fatal to its admissibility challenge.
Taken overall, the Court was not convinced that the evidence presented by Libya adequately demonstrated that they are investigating the same case. While a number of the evidence presented by Libya suggests investigated conduct sufficiently similar to that being investigated by the ICC, the Court found that the evidence did not sufficiently demonstrate the “nuances” of the national case such that the Court could determine whether or not the two cases are essentially the same case. Libya’s failure, essentially, was evidentiary: the evidence given to the Court was not sufficiently probative or specific for rendering a determination. The evidence basically failed its sufficiency requirement.
While the Court noted that the evidentiary sufficiency issues could theoretically be remedied through additional submission by Libya, ultimately the Court found that serious – and largely insurmountable—issues remained with the nation’s ability to prosecute the case, which additional information would not remedy. The Court found that while Libya, contrary to arguments made by the defense (particularly regarding its perception that Libya is not committed to ensuring a fair trial for Gaddafi), has adequately demonstrated a commitment to prosecute fairly (evidenced by its use of outside international aid in setting up its judicial system, the country’s accession to several international right treaties, and its progressing investigation), practical obstacles exist that will render an expeditious and function trial of Gaddafi essentially impossible. Due to internal conditions still extant in Libya, the Court determined that essentially the judicial system there is in practice “unavailable” to prosecute the defendant. Because it found practically inability as dispositive in the case, the Court did not address the question of “willingness” beyond countering some defense arguments.
With respect to practical ability to prosecute, the Court found several areas of serious deficiency. First, the designated national authorities in Libya have been unable to physically obtain Gaddafi into their custody. The Court found that the situation in Libya post-Revolution is still not unified, such that the official authorities do not have control over all areas and factions within the Country. Gaddafi is currently in custody of a group and in an area that is not fully under Libyan control; as such, the Court found that, despite repeated efforts, Libya has not been able to secure Gaddafi. The Court found that nothing in the evidence suggests that this situation will change any time soon; additionally, the Court expressed reservations that, even if the Libyan government could secure Gaddafi’s transfer, they do not have the requisite control to ensure that he would not be aided in escape (or, alternatively, tortured and/or killed) during the transfer process. Because Libyan law prohibits in absentia trials for individuals still physically within the country, this inability to secure Gaddafi’s custody is a fundamental barrier to prosecuting the case.
Additionally, the Court found that the Libyan judicial system would be unable to adequately secure necessary testimony. Given the still-volatile and factional situation in Libya, and the fact the Libya does not really have a system fully in place for witness protection during trial, the Court found that the government’s ability to obtain testimony and evidence would be seriously hampered. Of particular concern to the Court in this regard, was its finding that Libya still does not retain full institutional control over its detention facilities. Furthermore, due to the political situation currently in Libya, the government has had an extremely difficult time finding domestic defense counsel willing to fairly represent Gaddafi, whether due to the attorneys’ own personal feelings, or fear of serious backlash from political factions for aiding a member of the former regime. As of yet, despite months of searching, defense counsel has not been appointed, and Libya has had to begin seeking potential counsel from neighboring countries. The Court found, however, that the evidence failed to show that this issue would or could be remedied in the foreseeable future. The Court viewed this problem in securing counsel as a fundamental obstacle to Libya’s ability to continue its case against the defendant.
As such, the Court found that the Libyan government, although not for want of trying, is practically unable to proceed with its case against Gaddafi at the domestic level. As such, the Court found that the case is admissible at the ICC. In reaching this finding, the Court reminded Libya of its now-continuing duty to surrender Gaddafi to the custody of the ICC as soon as possible.
To access the full Decision, click here.
Court/Tribunal: International Crimes Tribunal for Bangladesh
Decision Title: Judgment
Chamber: International Crimes Tribunal-2
Case Name: The Chief Prosecutor v. Muhammad Kamaruzzaman
Date: 09 May 2013
Decision Background: The accused, Muhammad Kamaruzzaman, was indicted on seven different counts of specific criminal activity, all of which were alleged to have constituted crimes against humanity. Additionally, for counts relating to murder and sexual violence, the Prosecution in the case charged the defendant with engaging in genocidal activities against unarmed Bengali citizens who supported Bangladesh’s independence drive during the 1971 breakaway war.
The accused, as a member of a pro-Pakistani paramilitary group known as Al-Badar Bahini, was charged with the following: Count one charged the accused with the killing of a Bengali citizen by the name of Badiuzzaman, Count two accused the defendant of inhumane acts against a Syed Abdul Hannan, Count three charged the defendant with involvement in a mass killing and rape of civilians at Sohagpur, Court four accused Kamaruzzaman with participating in the killing of a civilian prisoner named Golam Mostafa, Count five charged the accused with killing several individuals at the Ahammednagar detention camp, Court six accused the defendant of being involved in the murder of a civilian named Tunu, and Count seven charged the defendant with killing six civilians at an Al-Badar camp.
Tribunal-2 was created on 22 March 2012 to address crimes against humanity committed during Bangladesh’s war of independence from Pakistan during 1971. Kamaruzzaman’s is the third case heard and judged by the tribunal. The defendant was formally charged on 18 December 2011. The prosecution re-submitted the formal charge to the tribunal on 15 January 2012. The case was initially filed in tribunal-1, but on 29 March 2012, the defendant’s case was transferred to tribunal-2. The defendant’s trial commenced on 02 August 2012 with the prosecution’s opening statements.
Decision Review: The defendant was found guilty on five of the seven charges. Specifically, the Court found the defendant guilty on counts one through four, and count seven. The defendant was found not guilty on counts five and six.
It is worth noting from the outset that, throughout the decision, in supporting its legal findings the Court made many references to the jurisprudence of cases in other international war crimes and criminal courts, particularly to the International Criminal Tribunal for the former Yugoslavia and to the International Criminal Tribunal for Rwanda.
The mode of defendant’s liability rested on two foundations, namely aiding and abetting liability, and superior civilian liability. The defendant was a part of, and as stated by the Court, a potential leader of the paramilitary group Al-Badar Bahini. In the majority of cases, the prosecution did not allege that the defendant personally carried out the acts and crimes visited upon the victims. Rather, they found that his actions before and after the actual crimes encouraged and supported their commission. Likewise, as someone who was determined to have effective control over the Al-Badar forces, he had the power to command and stop the crimes, which he did not do. As a commander, the Court found that he engaged in other like behavior (in addition to not punishing the crimes) that suggested his approval and support of the crimes. As such, he was connected to and liable for their commission. While it was Al-Badar troops that actually engaged in the killings, torture, and rape, the Court found that the defendant could be found liable based on the “advice,” “orders,” and “encouragement” that he gave to the individuals actually carrying out the crimes. His support, usually verbal or through tacit approval of actions already carried out, enabled the crimes to be committed.
The Court found that, while both aiding and abetting (individual) liability and superior liability could be established, it would be duplicitous to convict him under both forms, which amount to separate crimes under the relevant 1973 statute and penal code governing the tribunals. Thus, the Court found that the defendant’s principal mode of liability arose under aiding and abetting – namely the encouragement, advice and assistance he gave those actually carrying out the crimes. But, due to his superior position and superior liability, where it is assumed both from the mode of liability and from the particular facts of the case that he had knowledge of the crimes being committed, the Court found that his sentencing could be impacted. Thus, superior liability operated as an aggravating factor for the Court when rendering sentencing in the case.
The Court also found that the crimes committed fit within the category of “crimes against humanity,” although rejected the prosecution’s genocide argument. The Court noted that the crimes committed were committed against unarmed civilians in the context of a civil war, where those who supported the country staying with Pakistan attacked and decimated those who supported independence. Because the individual crimes of murder, torture, and rape occurred within the context of an overall, continual systematic “attack,” or “plan” or “objective” to weaken and decimate the opposition populations that lasted through the course of the conflict, the Court deemed the actions rose to the level of “crimes against humanity” as covered by the tribunal, rather than individual instances of rape, murder, etc. The Court did not find, however, that the overall, systematic attack amounted to genocide. Noting that the genocide carried with it the explicit goal to wipe out or destroy (“cleanse”) an entire ethnic, national, or religious community such that it no longer exists, or that its existence is place in jeopardy, the Court found that the systematic attack was more aimed at decimating and scattering, and thus weakening the political and military opposition, rather than any “cleansing” motivation. While the Court noted that the acts engaged in by the perpetrators – namely, widespread rape and killing of civilians—are hallmarks of genocide, given the context in which the crimes were occurring, they were not genocidal crimes.
Regarding counts one through four and seven, the Court found liability largely through oral testimony that corroborated other oral testimony. The bulk of the evidence mentioned in the decision came as testimony either from eyewitnesses to the crimes, or as hearsay evidence from those in the relevant areas at the time who heard about the crimes committed. The defense raised several claims about the overall reliability of the oral testimony of the witnesses and hearsay witnesses. The Court determined, however, that the hearsay nature of evidence, or a lack of corroboration of other evidence with eyewitness testimony, in and of itself does not render the evidence unreliable and inadmissible. The Court noted that while corroboration was preferred and in some instances required, it is ultimately up to the trier of fact (the tribunal judges) to determine the reliability of a given piece of oral testimony.
Several factors might influence the reliability, such as any inconsistencies between testimonies, the lapse of time between the event and the testimony, and the number of individuals asserting a certain claim. The Court found, however, that certain defects in consistency or a large time lapse do not inherently render testimony defective; rather, the Court looked at whether inconsistent details were significant or not, whether the lapse of time was large, and whether many people said substantively the same story, even if specific details were different. The Court noted the forty-year lapse between the war and the tribunal, plus the trauma suffered by the victims, as a suitable reason for minor inconsistencies. Likewise, even relatively large inconsistencies (such as several months’ differences in dates) could be remedied if enough other corroborating testimony and evidence existed to show that the substance of the testimony as it relates to the elements of the charged crime actually occurred. The Court further noted that even if a witnesses’ testimony was partially unreliable, that does not mean that the entire testimony need by thrown out, and the Court was free to use the parts of testimony that it did seem reliable. It also noted that an element of the crime charged could be proven through oral testimony solely, and from the case, it does seem like a large amount of the defendant’s guilt was found through the supporting testimony of several witnesses saying the same (or basically the same) thing.
In relying on the hearsay evidence, the Court noted that hearsay evidence does not per se mean it is unreliable. Again, the ultimate decision on that front was the Court’s assessment of the witnesses’ credibility and reliability. While corroboration with eyewitness testimony was often included and implicitly required, it was not necessarily required. Rather, the Court looked at several contextual factors in determining whether hearsay evidence could be used as positive evidence against the defendant. A large part of the analysis looked at the witness his or herself: was the witness a relative of the victim, was the witness part of Al-Badar and around when the crimes were being committed, was the witness another victim of crimes in the relevant place and time, but not of the one being charged, was the witness a former prisoner of Al-Badar. Basically, they looked to whether the hearsay witness would be someone who was around at the time of the crime or shortly thereafter, and would have reason to hear from someone with first-hand knowledge of the crime shortly after the crime was committed.
The Court also looked at the “context” of the testimony; namely, whether the hearsay witness was testifying to information relevant to the crimes that had become “common knowledge” to the relevant community around the time of their commission. The Court looked essentially at whether the hearsay evidence was consistent with facts as they were known to be (both about the crimes, those involved, and the situation on the ground) at the time. In a related manner, the Court looked to whether the hearsay testified to was consistent with information provided by eyewitness testimony.
For the most part, the Court found the defendant’s liability through a combination of oral eyewitness and hearsay testimony that the Court found painted a consistent and reliable picture that placed the defendant “at the scene of the crimes,” that showed that the defendant was in positions to support and control those who were actually physically committing the crimes. Very little use of physical evidence was mentioned in the decision in finding liability.
While the Court stressed that corroboration of testimony was not a per se requirement for reliability and using it to find liability, consistency and corroboration played a large part in the Court’s analysis. The two counts (five and six) from which the defendant was acquitted were essentially deemed defective in those ways: there were few witnesses to the alleged crime, who could not specifically testify to what exactly it was the defendant was to have done in support of the killings and torture. Without specific information as to what the defendant did to aid and abet the crimes, the Court could not make a finding of guilt. But it also did not help that there were few corroborating and consistent details between the witnesses’ testimony placing responsibility for the crimes on the defendant; without a lot of consistent details, the Court ultimately found that a six-month difference in placing the time of the crimes was an inherent fault that rendered the testimony unreliable and did not establish guilt. The importance of consistency and corroboration of many different testimonies to the analysis, however, is evidence when, in another court, a six-month discrepancy in placing a crime was not deemed a fatal flaw due to enough other corroboration and consistency among major details.
The Court sentenced the defendant to death by hanging. Specifically, his conviction on counts three and four, taking the superior responsibility into account as an aggravating factor, carried the death penalty. On counts one and seven, the Court sentenced the defendant to terms of life in prison. On count two, the defendant was sentenced to ten years in prison. The Court noted, however, that the life in prison sentences and the ten-year sentence would necessarily be merged with and subsumed by the death sentence.
The judgment, including sentencing, was unanimous.
To access the full Decision, click here.
ICTY convicts six Bosnian Croats: Six accused on trial for forcibly displacing and murdering Muslims and other non-Croats during the Bosnian conflict in the early 1990s, were found guilty today for war crimes and crimes against humanity. The ICTY judges held the leaders engaged in a joint criminal enterprise in an effort to create a “Greater Croatia.” The tribunal handed down prison sentences ranging from 10 to 25 years, with former prime minister Jadranko Prlic receiving the longest. The five other convicted wartime leaders are former defence minister Bruno Stojic, former militia heads Slobodan Praljak and Milivoj Petkovic, former military policy commander Valentin Coric, and former head of prisoner facilities Berislav Pusic. All six are expected to appeal. (For additional information on this topic, please click here.)
Bensouda fires back at claims ICC targeting Africa because of race: ICC Prosecutor Fatou Bensouda responded sharply to accusations the court’s investigations were discriminately targeting African states at a 28 May UN meeting in New York. Bensouda argued that the AU’s charges that the ICC choose cases on the basis of race wrongly shifted the focus of the ICC indictments and the protection of the Court from victims to the perpetrators. Bensouda said the AU’s stance insulted the thousands of African victims subject to war crimes, crimes against humanity and genocide. She vowed the ICC would remain politically independent and impartial. The Prosecutor’s statements came one day after the AU adopted a resolution urging the ICC to refer back to Kenya the cases of President Uhuru Kenyatta and Deputy President William Ruto. (For additional information on this topic, please 1. click here, and 2. click here).
Witness testifies Mladic “directly involved” in Srebrenica attacks: Bosnian Serb commander Ratko Mladic’s trial continued at the ICTY with testimony from lieutenant colonel Mirko Trivic. Trivic claimed he met with Mladic in Srebrenica in July 1995, and that Mladic gave him orders to prepare for an offensive on the UN protected co-operative. A witness testified the previous week that he personally watched the murder of five Muslims and observed piles of bodies around Srebrenica that same month. Mladic is on trial for genocide, crimes against humanity, and taking international peacekeepers hostage.
UN Human Rights Council plans urgent debate on Syria: The Council’s three-week session opened on Monday with a recommendation that the Syrian government’s human rights violations be referred to the ICC for prosecution. UN High Commissioner for Human Rights, Navi Pillay, voiced her concern for the safety of civilians, citing reports of aerial attacks in residential areas and the targeting of schools and hospitals. Present Syrian Ambassador Faysal Khabbaz Hamoui called these charges unfounded and challenged the Council to provide proof of such violations. Ambassador Hamoui claimed the focus on his country was the result of bias and impartiality to rebel troops. U.S., Turkey, and Qatar diplomats nonetheless persuaded the Council to hold a second urgent debate to focus on the Syria civil war. The debate is scheduled for today, 29 May 2013.
Death penalty for ICT criminals to be carried out by August: The execution of three war criminals in Bangladesh is expected by July or August of this year, according to Minister of Information Hasanul Haq Inu. Two top leaders and a former Jamaat activist were found guilty by the ICT for crimes committed during the 1971 Liberation War. The criminal appeals should conclude by June.
STL’s investigation of 2005 bombing to move quickly and carefully: On 14 May 14 2013, STL officials and the NGO Justice Without Frontiers met to discuss the on-going investigation into the 2005 bombing that killed 23 people, including former Lebanese prime minister Rafik Hariri. The STL vowed to move the investigation along quickly to help the victims. The NGO stated this would be done in a “careful” manner to avoid leaks of confidential information.
Post by: Anna Mumford
Alleged Ouattara supporter apprehended in Ivory Coast: On Saturday, authorities in Cote d’Ivoire announced that they had a former member of Alassane Ouattara’s military regime in custody. Amade Oueremi allegedly ordered attacks against supporters of Laurent Gbagbo during violent post-election protests in 2011. Then-outgoing President Gbagbo refused to leave office after national elections declared Ouattara the victor. Authorities suggest Oueremi will be transferred to Abidjan, where he will face charges. Gbagbo was arrested shortly after the riots and transferred to The Hague, where he is awaiting trial at the International Criminal Court.
UN Human Rights Office indicates CAH may have been committed in Nigeria: A spokesperson for the UN Office of the High Commissioner for Human Rights said this weekend that Boko Haram’s recent violent attacks could constitute crimes against humanity. Rupert Colville said Friday that the hundreds of civilian deaths in Nigeria, largely accredited to the militant group Boko Haram, were of great concern to the international community. Anything amounting to widespread and systematic attacks or ethnic cleansing against the population could be prosecuted. Secretary General Ban Ki-moon echoed these sentiments.
LRA casualties surpass 100,000 according to UN: On Monday the Office of the High Commissioner for Human Rights released a key figure from its report on the impact of the Lord’s Resistance Army and civilian welfare in Central Africa. It concluded that over 100,000 individuals had been killed since 1987, during which time the LRA had also committed atrocities including child abduction and forced displacement. The LRA’s current leader, Joseph Kony, reportedly led the group in attacks against civilians in Uganda, and is thought to be on the run in neighboring Democratic Republic of Congo, Central African Republic, or other speculated locations. He is wanted by the International Criminal Court for these crimes.
Court/Tribunal: International Criminal Court
Decision Title: Decision on defense application pursuant to Article 64(4) and related requests
Chamber: Trial Chamber V
Case Name: The Prosecutor v. Uhuru Muigai Kenyatta
Date: 26 April 2013
Decision Background: On 23 January 2012, the Pre-Trial Chamber II for the Court confirmed charges of crimes against humanity against Uhuru Kenyatta. On 9 July 2012, the Trial Chamber set the trial commencement date at 11 April 2013. On 5 February 2013, the defense for Mr. Kenyatta filed an application with the Chamber, challenging the validity of the confirmation of the charges against Kenyatta, and asked that the confirmation decision be referred back to the Pre-Trial Chamber for reconsideration. On 20 February 2013, the defense again submitted a request to the court, asking that the 11 April trial date be vacated. At a status hearing on 7 March 2013, in response to several claims raised by the defense, the court vacated the 11 April trial date, and provisionally re-set the date for trial at 9 July 2013. On 11 March 2013, the Prosecution announced that it was withdrawing charges against Francis Kirimi Muthaura, who had been charged as a co-conspirator with Kenyatta.
Pursuant to the latest developments regarding the dismissal of the charges against Muthaura, on 28 March 2013, Kenyatta petitioned the court, asking that the Chamber terminate the proceedings against him, stay the proceedings, or remit the case back to the Pre-trial Chamber for reconsideration, pursuant to Article 64(4) of the Statute.
The Kenyatta defense advanced four grounds upon which he petitioned for the requested relief.
The defense first argued that the Prosecution committed grave error, and potentially acted in bad faith, when it neglected to disclose to the defense potentially exculpatory information. Namely, the defense pointed to the recant of Witness 4’s testimony, which had been used as evidence in the confirmation hearing. Witness 4 withdrew testimony regarding his presence at a meeting in 2007, at which he testified that Kenyatta had been in attendance. This meeting was important to the Prosecution case, as they argued that part of the conspiracy or plan to engage in post-election violence had been formulated at this meeting. The recantation of this testimony, however, was not disclosed to the defense until after the confirmation hearing. Likewise, the Prosecution failed to notice the inconsistencies in the testimony until late in the proceedings.
The defense argued that the non-disclosure constituted a serious “clear and systematic failure” by the Prosecution’s investigation, that fundamentally called into question the credibility and strength of the evidence used to confirm the charges against Kenyatta. The defense noted that the Pre-trial Chamber, in confirming the charges, relied heavily upon Witness 4’s testimony. The defense argued that the defects in the Prosecution’s investigatory practices and failure to turn over the relevant material to the defense, will have far-reaching and negative effects on the proceedings against Kenyatta and on the credibility of the court generally.
The second issue also related to the problems with Witness 4’s testimony. Namely, the defense pointed to the inconsistencies given by Witness 4, who first testified to the 2007 meeting, then recanted his testimony. The defense argues that the evidence given by Witness 4 was thus not substantial enough to hold up at the confirmation hearing, and that without the evidence of Witness 4’s testimony, the evidence against Kenyatta was insufficient such that the Pre-trial Chamber would not have confirmed the charges against him.
For the third alleged defect in the Prosecution’s case, the defense took issue with the Prosecution’s “protracted” investigation. Namely the defense argued that the even after the confirmation hearing, the Prosecution continued to engage in significant investigatory action, which resulted in the nature of the case against Kenyatta “fundamentally changing,” and thus leaving the defense with inadequate time to prepare in response to the Prosecution’s “shifting” case. The defense argued that the Prosecution had ample time to collect evidence and engage in investigation before the confirmation hearing, and the fact that it did not so do “with reasonable diligence” undermines the confirmation process. The defense argued that the Prosecution’s failures in this area violated the defendant’s rights under Article 67(2) of the Statute, and failed to comply with Court jurisprudence on the Prosecution’s investigative duties.
Finally, the defense argued that the dismissal of charges against Muthaura fundamentally changes or calls into question the case against Kenyatta. Namely, the defense argues that the dismissal of charges against Muthaura acts as an admission by the Prosecution of insufficient evidence of wrongdoing by Muthaura. Since Muthaura and Kenyatta were initially charged as co-conspirators to the same crimes, the admittance of insufficient evidence in Muthaura’s case necessarily also reveals an insufficiency of evidence to sustain the charges against Kenyatta, who was said to have acted in concert with Muthaura. In support of this argument, the defense again highlighted the problems with Witness 4’s testimony in establishing the factuality of the meeting at which the common plan was said to have formed.
In addition to the reliefs requested in the 28 March application to the court, the defense also asked in its most recent 64(4) Application that the Prosecution be reprimanded for its non-disclosure of Witness 4’s affidavit, in which the recantation was present, to the defense until significantly after the confirmation hearing. Although the Chamber reprimanded the defense for failing to formally list reprimand as a relief in its document, given the seriousness of the Prosecution’s alleged misconduct, the Chamber noted that it will entertain the arguments relating to reprimand.
Decision Review: The Chamber first reviewed the defense’s request for termination or an unconditional “stay” of the proceedings against him, in light of the issues raised. The Chamber first noted that, however the relief was characterized, it would result in a permanent cessation of the case against Kenyatta. As such, the Chamber decided to address termination or “unconditional stay” as one and the same.
A termination is usually argued for when the defense believes that for various reasons, a fair trial for the accused is impossible, at the present time or any time in the future. While the Chamber stated that the defense failed to specifically lay out the reasons for this relief (why the proceedings would be unfair), it gathered that it was based on the defense’s arguments of insufficient evidence. The Chamber noted that under Article 85(3), it has the power to terminate or stay proceedings where continuing with the case would cause a “grave and manifest miscarriage of justice” due to serious violations of the accused’s rights. Likewise, a Chamber need not find that the Prosecution acted in bad faith, only that the effects of certain actions violate the defense’s rights to such an extent that the essential conditions for a fair trial are permanently absent.
On the other hand, the Chamber noted that a conditional, rather than permanent, stay of proceedings is also an option, and most appropriate in situations where current defects to the defense’s rights exist, but may be remedied in the future. The court noted that not every violation of a defendant’s rights warrant a permanent stay or termination of the case: termination is an exceptional remedy of last resort, and often less severe remedies are sufficiently available to counteract the unfairness to a defendant, without cancelling the entire case.
The Chamber found that the Prosecution’s conduct in failing to disclose the information regarding Witness 4’s testimony to the defense until much after the confirmation hearing, created a “cause for serious concern,” and implicated both the integrity of the court proceedings, and Kenyatta’s rights as a defendant. However, the Chamber found that the problems caused by the Prosecution’s failures could be remedied at trial. Namely, the Prosecution would no longer be calling Witness 4, and the defense, in making its case, would be free to challenge the credibility and strength of the Prosecution’s evidence, particularly in light of the lack of Witness 4’s testimony. Furthermore, the Chamber did not find evidence of deliberate bad faith on the Prosecution’s part. The Chamber thus found that a stay or termination of proceedings, in this instance, would be disproportionate to the harm done, especially in light of the opportunities the defense will have to address the problems with the Prosecution’s case at trial.
Regarding the defense’s request to have the case referred back to the Pre-trial Chamber, the court noted that the Statute gives the Pre-trial Chamber jurisdiction over “preliminary issues” in a case. To refer an issue back to the Pre-trial Chamber, the Trial Chamber must be satisfied that the issue is a preliminary issue, and that referral is “necessary” for the “effective and fair functioning” of the Chamber. The validity of the confirmation hearing as a “preliminary issue” was not contested by the parties. The Chamber thus had to consider whether referral was necessary for the fair functioning of the trial, which necessitated looking at the merit’s of the defense’s arguments. The Chamber noted, however, that it would not go beyond a prima facie analysis of the defense’s claims. It will only refer the issue back to the Pre-trial Chamber if it is clearly self-evident that no reasonable Pre-trial Chamber could have come to the same conclusion it originally did, in light of the new or changed evidence.
The Chamber found that it is not necessary to remand the case back to the Pre-trial Chamber. The Trial Chamber found that issues with the case came to a head while the case was under the Trial Chamber’s competence; as such, the Trial Chamber found that it would be competent to review and resolve any issues with the proceedings. The Chamber found, however, that it is not within its competence to reconsider the evidence presented at the confirmation hearing, and redo the credibility assessments made by the Pre-trial Chamber. The Chamber reprimanded the defense for essentially attempting to use the Chamber, through a referral to the Pre-trial Chamber, as a defacto appeals court, to appeal the confirmation hearing decision, which it had previously attempted to do through the regular channels, and had failed. The Chamber did not agree with the defense that the issues with Witness 4 materially impacted the confirmation hearings.
In regards to the defense’ request for a reprimand, the Chamber noted that while not explicitly granted to it in the Statute, the Chamber does generally retain the right to issue a reprimand and a warning to the Prosecution for a failure to identify and disclose potentially exculpatory information, or information that affects the credibility of the Prosecution’s evidence. The Chamber also noted that the disclosure of potentially exculpatory information to the defense is a “fundamental aspect of the accused’s right to a fair trial.” The Chamber noted that it is clearly appropriate to issue such reprimands and warnings in cases where the Prosecution has clearly violated these obligations. Likewise, in certain situations, it can also be appropriate for the Chamber to order additional, more stringent sanctions, along with the reprimand.
The Chamber found that the most prudent remedy was a reprimand to the Prosecution. In reaching its decision, the Chamber took particular issue with the amount of evidence that the Prosecution gathered after the confirmation hearing, a point at which the vast majority of the investigation is supposed to be completed. Although the Prosecution is allowed to do some investigating after the hearing, if circumstances prior to the hearing made investigation in a given area difficult or impossible, this exception is not unlimited. The majority of the court found that the Prosecution should have and could have been more thorough in its pre-confirmation-hearing investigation, and the decision spent a significant amount of time chastising the Prosecution for its failure to act with reasonable diligence. The Chamber did, however, acknowledge the special difficulties presented to the Prosecution in conducting its investigation – namely, the unstable security situation in Kenya—and seemed to discount the Prosecution’s failure to act more quickly.
Along with the reprimand, the Chamber ordered the Prosecution to conduct a complete review of its case file, and certify to the court that it had done so, to ensure that no further violations of its disclosure obligations occur. It also ordered the Prosecution to make any necessary changes to its internal review system, as the Chamber found that it was deficiencies in the review system that lead to the oversights and non-disclosure of important information. Finally, due to the marge amount of investigation that the Prosecution engaged in after the confirmation hearing, the Chamber found that an appropriate remedy would be to allow the defense more time to conduct its own investigation and prepare for trial in light of the new evidence that was gathered after the confirmation hearing. While the Chamber typically finds three months as sufficient for additional time to prepare for trial, given the circumstances of the case, the Chamber will consult the defense regarding its needs to prepare for trial, before setting the new date, which tentatively remains at 9 July 2013.
To access the full Decision, click here
Posted by iclmediareview in Admissibility / Primacy, Crimes against Humanity, Fair trial/Accused's rights, Fatuo Bensouda, Gaddafi, Human Rights Violations, ICC, ICT of Bangladesh, Investigations, Kenya, News about the Courts, North Korea, Torture, UN Human Rights Council, UN Security Council, Victims, War Crimes, Witnesses on May 9, 2013
Bensouda addresses UNSC on Libya trials as Al-Senussi’s family pleads for access: On 8 May 2013, ICC Prosecutor Fatou Bensouda addressed the UN Security Council on Libya proceedings before the ICC. Bensouda referred to the current cases against Saif Al-Islam Gaddafi and Abdullah Al-Senussi as Libya’s “Nuremberg moment”; stating that “By conducting fair, just, and transparent judicial proceedings for all alleged perpetrators, while also continuing to respect the ICC judicial process, Libya can set a lasting example for other States.” Bensouda also told the Security Council that the ICC Prosecutor’s Office is conducting on-going investigation into other crimes in Libya and against other Gaddafi officials who are outside of Libya. Bensouda said that her office would decide whether to lodge a new case in the “near future.” Bensouda highlighted Libya’s close cooperation with the Prosecution by citing to a recent visit to the ICC by Libya’s new Prosecutor General and Libya’s ICC focal point, and noting that she will be travelling to Libya soon. Bensouda’s address was followed on 9 May 2013, by a statement from the family of Abdullah Al-Senussi which urged Libya to allow Al-Senussi access to his lawyers and family. The statement emphasised that Al-Senussi has not been granted any access to legal representation during his detention and likened his detention to “passive torture.” (For additional information on this topic, please 1. click here, and 2. click here).
Kenya’s UN representatives ask for ICC trials to be terminated: On 2 May 2013 Kenyan Permanent Representative to the UN Macharia Kamau wrote UNSC President Menan Kodjo a confidential letter which asked the UN Security Council to terminate the cases against Uhuru Kenyatta, William Ruto and Josua arap Sang. Kamau asked that his petition be presented to ICC Prosecutor Fatou Besounda during her visit to the UN Security Council this week. The letter is reported to say: “What this delegation is asking for is not deferral. What this delegation is asking for is the immediate termination of the case at the Hague without much further ado.” Kamau’s letter is followed by a statement to the UN General Assembly last month by Kenya’s deputy Permanent representative Koki Muli Grignon who questioned the Court’s performance. In response to the letter, lawyers for accused William Ruto distanced Ruto from the plea, saying that “I have spoken to my client, His Excellency the Deputy President of the Republic of Kenya, Mr William Ruto, and I can confirm and he has made clear that he was not consulted on anything to do with New York. A letter being circulated is not government policy … His Excellency the Deputy President believes in the rule of law and he believes in Kenya observing its international obligations.” Bensouda dismissed the letter stating that: “The letter referred to by the Permanent Representative of Rwanda has not been transmitted to us. We therefore reserve our right to respond to it in detail in due course and we hope that will be given that opportunity once it has been transmitted to us.” (For additional information on this topic, please click here).
ICT of Bangladesh sentences Kamaruzzaman to death: On Thursday 9 May 2013, the ICT of Bangladesh handed down its fourth death sentence. In a packed courtroom in Dhaka, Muhammad Kamaruzzaman was convicted of five counts of mass killings, rape, torture and kidnapping and sentenced to death. Kamaruzzaman’s charges related to the death of at least 183 persons in Sherpur in northern Bangladesh during the 1971 independence war. As the fourth death sentence to be handed down since January, it is feared that today’s verdict will prompt another wave of violence in Bangladesh. Defence lawyer Ehsan Siddiky said that his client would pursue an appeal in what he claimed was a politically motivated trial. Kamaruzzaman will have one month to lodge his appeal.
Charges against Kenyatta amended: The ICC Prosecution has filed a new document containing charges (DCC) and pre-trial brief in the case against Kenyan President Uhuru Kenyatta which add charges of gun killings in Naivasha and Nakuru. In March 2013, the ICC Pre-Trial Chamber granted the Prosecution the opportunity to amend the charges to include gunshot crimes. The charges now allege that the Mungiki and PNU youth were deployed to areas near Nakuru where guns, machetes, knives, broken bottles and petrol bombs were used to kill and mutilate victims.
UN HR Council names North Korea crimes probe team: The UN Human Rights Council has named a three member team to investigate alleged abuses in North Korea. Following a mandate set by the UN Human Rights Council during its March session, the Council named former Australian judge Michael Kirby, Serbian human rights campaigner Sonja Biserko and an Indonesian Marzuki Darusman who has been monitoring abuses in North Korea for the UN HR Council since 2010. The team has been mandated to investigate “systematic, widespread and grave violations” and ensure “full accountability, in particular for violations which may amount to crimes against humanity.”
Guatemalan CAH trial enters into closing arguments: The trial against José Efraín Ríos Montt and José Mauricio Rodriguez Sanchez has entered its 26th session and proceeded to closing arguments after beginning in March and hearing the testimony of 90 Ixil Maya victims. The trial has heard testimony from victims who have recounted evidence of rape, assassination, torture, and infanticide relating to the charges. Since beginning proceedings, the trial has had several delays at the defence’s request.
Chad allows investigation into alleged war crimes: On 4 May 2013, it was announced Senegal and Chad have signed an agreement allowing Senegal to carry out an investigation into alleged war crimes committed by former Chadian dictator Hissene Habre in the 1980s. Habre was in power from 1982 until a 1990 military coup. He is accused being responsible for more than 40,000 political killings, torture and other human rights violations. The former dictator has been living under house arrest in Dakar, Senegal, since 1994.
(For additional information on this topic, please click here)
Bemba trial stalls: On 3 May 2013, it was announced once again that the Jean-Pierre Bemba trial at the ICC has stalled, as the defense continues to experience difficulties in getting witnesses to appear before the court. The latest witness failed to appear by video link did as a result of a fear for his security in the country he was based. An ex parte status conference to be attended by the defense, the Registry and the VWU has been scheduled to hear further discussions on the scheduling and the appearance of witnesses.
Kenyatta plans official visit to London: On 5 May 2013, it was confirmed that Kenyan President Uhuru Kenyatta will be making a three-day official visit to London for a conference on Somalia. Kenyatta is currently facing trial in front of the ICC for allegedly participating in crimes against humanity which occurred during the 2007-2008 Kenyan elections. London has a policy of only essential contact with anyone charged by the ICC.
Saif al-Islam appears in court: On 3 May 2013, it was reported that the son of deposed Libyan leader Muammar Gaddafi appeared in court in the town of Zintan last Thursday. Saif al-Islam is wanted by the ICC for war crimes charges but the trial in Zintan relates to a matter of national security according to the armed group in Zintan. The ICC lawyer, Australian Melinda Taylor, was herself detained for three weeks after a meeting in which Saif al-Islam is accused of handing over sensitive papers and information. ICC lawyers are skeptical of whether a fair trial can be achieved and consider likely that if convicted, Saif al-Islam will receive the death penalty.
Kenya truth commission: On 3 May 2013, it was announced that a report investigating violence and human rights abuses in Kenya will recommend prosecutions but will retain its primary focus of truth and healing. The Truth Reconciliation and Justice Commission has looked at past injustices going as far back as 1963. Ahmed Sheikh Farah, a member of the commission, says that the mandate of the commission has been to investigate and appropriate action on human rights abuses, politically motivated violence, assassinations, and corruption and land disputes.
EU lifts Myanmar sanctions: On 22 April 2013, the EU agreed to lift all sanctions against Myanmar except for an arms embargo. The move by the EU may pressure the United States, which suspended most sanctions against Myanmar last year, to permanently lift sanctions. However, Human Rights Watch and other human rights activists have expressed concern over ongoing human rights abuses. An HRW report accuses the Myanmar government of crimes against humanity relating to the “ethnic cleansing” of Muslims last year.
Kenyan Deputy-President William Ruto selects lead counsel for ICC trial: On 23 April 2013, Kenyan Deputy-President William Ruto, whose ICC trial begins next month, selected Kamir Khan to be his lead counsel. Khan successfully represented Kenyan Francis Muthaura, whose charges were recently dropped by the ICC. Ruto also filed an application to waive his right to be present at all trial hearings; Khan argued the Rome Statute does not require a suspect to be present during court proceedings.
ICC President of Assembly of States Parties participates in events in Ethiopia and The Hague: On 19 April 2013, ICC President of the Assembly of States Parties Tiina Intelmann returned to The Hague after a four-day tour through Ethiopia. Upon her return, Intelmann participated in a meeting to assure that top judiciary candidates are appointed to the ICC. In Ethiopia Intelmann met with the Chairperson of the AU Commission to discuss the capabilities of the ICC to address gender based crimes and she meet with representatives of African state parties to the ICC. Intelmann also participated in a seminar focused on the ICC and complementarity; she said the long-term focus of the ICC is to prevent crimes and strengthening the rule of law.
Ntaganda’s trial raises DRC nationality question: On 26 March 2013, Bosco Ntaganda, a DRC warlord currently facing charges before the ICC, addressed the charges against him at the ICC. Ntaganda stated that he was born in Rwanda, but is a Congolese citizen; Ntaganda, however, stated that he prefers to speak in Kinyarwanda, a language connected to ethnic Tutsis and foreign to the DRC. This statement in front of the ICC began a debate in the DRC on what it takes to be “Congolese.” There is some controversy if Ntaganda is considered to be a Rwandan citizen as Rwanda is not a state party to the ICC. The ICC, however, released a statement that Ntaganda confirms he is a DRC citizen and the crimes he is accused of committing were in the DRC, which is a state party—so there is no issue of jurisdiction.
24 April 2013 – DECISION REVIEW
Court/Tribunal: Supreme Court of the United States
Case Name: ESTHER KIOBEL, INDIVIDUALLY AND ON BEHALF OF HER LATE HUSBAND, DR. BARINEM KIOBEL, ET AL., PETITIONERS v. ROYAL DUTCH PETROLEUM CO. ET AL.
Decision on “whether and under what circumstances courts may recognize a cause of action under the Alien Tort Statute, for violations of the law of nations occurring within the territory of a sovereign other than the United States.”
Date: 24 April 2013
Decision Background: In the 1990s, in response to protests by the Ogoni people about the environmental harm caused by oil extraction, the Nigerian government destroyed villages, arrested dissidents, and, in November 1995, executed nine Ogoni leaders, including Dr. Barinem Kiobel, Esther Kiobel’s late husband. Petitioners, Esther Kiobel and eleven other Nigerian nationals alleged that they, or their relatives, were killed, tortured, unlawfully detained, deprived of their property, and forced into exile by the Nigerian government. The petitioners maintain that the respondents, including the Shell Petroleum Development Company, Ltd., were complicit with the Nigerian government’s human rights abuses.
The issue in Kiobel v. Royal Dutch Petroleum, Co., was whether corporations can be held liable under the Alien Tort Statute (“ATS”), a provision that permits aliens to file lawsuits in U.S. federal courts for violations of customary international law. 621 F.3d 111 (2d Cir. 2010), cert. granted, 80 U.S.L.W. 3237 (U.S. Oct. 17, 2011) (No. 10-1491). In 2002, petitioners filed suit in federal court against certain Dutch, British, and Nigerian corporations. Petitioners sued under the Alien Tort Statute, 28 U. S. C. §1350, alleging that the corporations aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria.
In March 2003, Royal Dutch Petroleum filed a motion to dismiss for failure to state a claim upon which relief can be granted. On May 17, 2004, plaintiffs filed an amended complaint adding Shell Petroleum Development Company of Nigeria Ltd (SPDC) as a defendant, which defendants sought to strike or to dismiss. On 29 September 2006, the U.S. District Court for the Southern District of New York granted in part and denied in part the motion to dismiss, and certified the order for interlocutory appeal. The only claims to survive against the corporate defendants were those sufficiently defined under international law to be actionable under the ATS.
On September 17, 2010, a majority of the appeals panel issued an opinion affirming the lower court’s dismissal of the lawsuit, and it found that the ATS could not be used to sue corporations for violations of international law. On June 6, 2011, plaintiffs filed a petition of certiorari with the Supreme Court. On October 17, 2011 the Supreme Court announced that it would hear the plaintiffs’ petition in this case. On December 14, 2012, Plaintiffs filed their brief with the Supreme Court. On January 27, 2012 Respondents filed their opposition brief.
Oral arguments took place on February 28, 2012. On March 5, 2012, the Supreme Court ordered that the case be reargued and directed both parties to file supplemental briefs addressing “[w]hether and under what circumstances the Alien Tort Statute . . . allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” On June 6, 2012, Petitioners filed their Supplemental Opening Brief. On August 1, 2012, Respondents filed their Supplemental brief. On October 1, 2012, the case was reargued before the Supreme Court.
Decision Review: The Court decided to set new limitations on ATS claims by addressing the question of whether and under what circumstances U.S. courts may recognize an ATS cause of action for violations occurring within another sovereign territory. The Court held that the presumption against extraterritoriality applies to claims under ATS, and nothing in the statute rebuts that presumption. The Court looked to Sosa v. Alvarez Machain, 542 U.S. 692, 732, to support this presumption by stating that the ATS is a jurisdictional statute that does not create a cause of action on its own.
The Court went on to say that the extraterritorial presumption “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” EEOC v. Arabian American Oil Co., 499 U.S. 244, 248. More specifically, the Court again relied on Sosa to support the fact that federal courts are limited to recognizing causes of action only for alleged violations of international law norms that are “specific, universal, and obligatory.”
In addition, the Court indicated that the presumption against extraterritoriality guarded against United States’ courts from making foreign policy decisions instead of deferring to the appropriate political branches. The fact that corporations are present in many countries and it would make it implausible if mere corporate presence sufficed as reason enough to displace the presumption against extraterritoriality. Furthermore, the Court stated that the ATS was not originally passed to make the United States a uniquely hospitable forum for the reinforcement of international norms. If Congress felt that such presence would suffice, “a statute more specific than the ATS would be required,” according to the Court.
Justice Kennedy wrote a one paragraph concurrence in which he suggested that “further elaboration and explanation” into cases of this nature may be necessary, as the present decision left several unanswered questions. Justice Alito, with whom Justice Thomas joined, concurred that if ATS “claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” Morrison v. National Australia Bank Ltd., 561 U.S., 2010.
Justice Breyer, joined by Justice Ginsburg, Justice Sotomayor and Justice Kagan, rejected the Court’s reasoning, while concurring with its decision. The justices agreed that they would not invoke the presumption against extraterritoriality, rather, they would have invoked jurisdiction according to (1) where the alleged tort occurred on American soil, (2) whether the defendant is an American national, and (3) if the defendant’s conduct substantially and adversely affected an important American national interest, specifically, preventing the United States from becoming a safe harbor for a torturer or other common enemy of mankind.
To access the full Decision, click here.