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Home Archive for category "EJIL Reports" (Page 23)

Belgium brings case against Senegal in the ICJ over Failure to Prosecute Hissene Habre

Published on February 20, 2009        Author: 

Belgium has filed a case in the ICJ against Senegal (see press release) with regard to Senegal’s failure to prosecute former Chadian Head of State, Hissene Habre. This is the latest episode in the long running saga regarding the possible prosecution of Habre. Habre is accused of torture and crimes against humanity committed in the 1980s against dissidents and political opponents during his period in office in Chad. Habre has been resident in Senegal since he was overthrown in 1990. Following the Pinochet precedent, attempts were first made in 2000 to institute criminal proceedings in Senegal against Habre. These attempts failed when the Senegalese courts held that Senegal lacked extraterritorial jurisdiction over the crimes because it had not passed the necessary legislation. Thereafter, proceedings against Habre were commenced in Belgium and, in 2005, a Beglian magistrate issued an international arrest warrant for Habre. After the African Union recommended prosecution in Senegal, that country amended its domestic law in order to provide jurisdiction for crimes against humanity, war crimes and genocide. However, no proceedings against Habre have been commenced in Senegal though he is said to be under house arrest.

 In its Application to the ICJ Belgium, requests the Court to adjudge and declare that:

” –  the Republic of Senegal is obliged to bring criminal proceedings against Mr. H. Habré for acts including crimes of torture and crimes against humanity which are alleged against him as author, co-author or accomplice;
– failing the prosecution of Mr. H. Habré, the Republic of Senegal is obliged to extradite him to the Kingdom of Belgium so that he can answer for his crimes before the Belgian courts”.

Belgium has also requested provisional measures as the Senegalese President has suggested that Habre may be released from house arrest. Read the rest of this entry…

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European Court decides A and others v. United Kingdom

Published on February 19, 2009        Author: 

Today the Grand Chamber of the European Court of Human Rights delivered its judgment in A and others v. United Kingdom, App. No. 3455/05, the sequel to the Belmarsh case, [2005] UKHL 71, decided by the House of Lords several years ago. The applicants were detained preventatively as suspected terrorists by UK authorities pursuant to legislation passed by Parliament and a derogation from Article 5 ECHR made by the UK after the 9/11 attacks under Article 15 ECHR. The House of Lords declared the derogation incompatible with the ECHR, on the grounds that it discriminated between nationals and non-nationals, as it allowed the preventative detention only of the latter. Today it was the European Court’s turn to deal with numerous issues arising out of the applicants’ preventative detention.
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Judge Owada Elected as New ICJ President

Published on February 12, 2009        Author: 

Last week, the judges of the International Court of Justice elected Judge Hisashi Owada as the Court’s new President, and Judge Peter Tomka as its new Vice-President, each for a term of three years. The ICJ press release is here. Three new judges have also now assumed their seats on the bench, namely judges Greenwood, Cancado Trinidade and Yusuf, while three judges have departed the Court, namely former President Higgins, and judges Ranjeva and Parra Aranguren.

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ICTY Trial Chamber Suspends Seselj Trial

Published on February 11, 2009        Author: 

The most poorly run trial ever before the ICTY – the high profile proceedings against the ultra-nationalist Serbian leader Vojislav Seselj – has entered into what I can only call its metastasis. AP reports that today the Trial Chamber, by 2 votes to 1 (presiding Judge Antonetti dissenting), decided to adjourn the trial indefinitely, for fears that the integrity of the proceedings has been compromised. The most serious allegations involve witness intimidation by Seselj’s associates – indeed, Seselj himself has recently been charged with contempt of Tribunal for disclosed the identity of a witness in the most recent, 1000 page instalment in his endless, Mein Kampf-like book series that he (supposedly) writes while in detention.

The trial itself has truly devolved into a travesty, with the presiding judge in particular showing an incredible lack of ability to manage the self-representing Seselj. In short, Seselj was basically allowed to run his own trial. That Seselj himself is probably one of the most obnoxious and irritating human beings in all of creation is really not an excuse for the amount of incompetence that has been displayed at the ICTY (see generally A. Zahar, ‘Legal Aid, Self-Representation and the Crisis at The Hague Tribunal’, (2008) 19 Criminal Law Forum 241; G. Sluiter, ‘Compromising the Authority of International Criminal Justice–How Vojislav Šešelj Runs His Trial’, (2007) 5 Journal of International Criminal Justice 529)

There is for now no indication how the trial might find its way out of limbo. I won’t even try to explain what kind of impact these developments can have on the already abysmally poor public perception of the ICTY in the Balkans, Serbia in particular. (Not to mention the fact that poor Serbia (i.e. me; self-pity is the best kind of pity) is going to have to suffer through Seselj’s return to the country, probably sooner rather than later, and through his boasting that he actually managed to defeat the Tribunal.)  What is fairly certain is that no-one working in the ICTY – least of all the judges – will actually bear any consequences for this fiasco.

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A Lucky Child, by Thomas Buergenthal

Published on February 1, 2009        Author: 

I wanted to bring to our readers’ attention a wonderful new book that is not about international law, but is about a great international lawyer. Judge Thomas Buergenthal’s memoir, A Lucky Child, has just been published in the United Kingdom and the United States. It had previously been published in Germany, where it has been a bestseller, and in several other European languages.

In the book, Buergenthal tells the story of his survival as a young boy of the horrors of Holocaust. In that, of course, his story is one shared by so many millions – from the flight of his family from Slovakia to Poland, to their life in the ghetto of Kielce, up to their transport to Auschwitz. What is unique about his story is not just his telling of it, which is formidable, and of course that he lived to tell it, but the very number of occasions where the young boy’s survival was determined not only by his wits and the people who were there to help him, but by sheer luck.

Photo Credit: US Holocaust Museum

Photo Credit: US Holocaust Museum

It is hard to describe a person who found himself in Auschwitz as ‘lucky’, but Buergenthal himself has no better word for it. From the fact that there were none of the infamous selections on the day he arrived in Auschwitz, to his survival of the death march when the camp was being evacuated, to an almost fantastic episode when the 11-year old was adopted as a mascot by the advancing Polish soldiers who took him with them to the Battle of Berlin (giving him his first taste of vodka in the process), up to him being discovered by his mother in a Polish orphanage after the war — there can be no doubt that otherwise fickle Fortune was constantly at his side. Though the narrative is often depressing and will bring you to tears, it is a message of hope that will stay with you once you put the book down.

One can only be grateful that such a man now sits in the Peace Palace in The Hague. Buy the book and read it, and be wiser for it. (Amazon UK, Amazon US).

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Sayadi: The Human Rights Committee’s Kadi (or a pretty poor excuse for one…)

Published on January 29, 2009        Author: 

In October 2008, the Human Rights Committee decided the Sayadi case (CCPR/C/94/D/1472/2006) regarding UN Security Council terrorist blacklists, and the decision has now been made public (h/t to Bill Schabas, who made available the text of the views). As I will now explain, the Committee regrettably failed to do justice to the many complex issues of international law that were raised in the case.

The facts of the case were these: the applicants, a married couple of Belgian nationality living in Belgium, ran the European branch of an American NGO that was put on a Security Council blacklist pursuant to the sanctions regime established in Resolution 1267 (1999) and its progeny. In 2003, after the initiation of a criminal investigation against the applicants in Belgium, the applicants’ names were put on a list drafted by the Sanctions Committee and appended to a UNSC resolution. Pursuant to EU and Belgian implementing legislation, the applicants’ financial assets were frozen, and they were banned from travelling internationally. The applicants were not given the reasons and the relevant information for their listing. In 2005, the applicants asked a Belgian court to order the Belgian government to initiate delisting procedures before the UNSC Sanctions Committee, and obtained such an order. Additionally, the criminal proceedings against them were dismissed. The Belgian government did initiate a delisting procedure, as ordered, but the UNSC Sanctions Committee refused to delist the applicants.

Before the Committee, the applicants raised the violations of several articles of the ICCPR, basically claiming that they were denied any due process in the UNSC sanctions procedure, and that Belgium implemented the outcome of this procedure, with a considerable impact on their life and without providing them with any remedy. As is apparent even from the mere recitation of the facts of the case, the applicants’ claims were certainly warranted on the substance of their complaint (I will not review here the growing literature on the impact of UNSC listing on human rights, and the many different proposals that were made to improve the process).

However justified the applicants’ claim on the merits, the examination of the claim on the merits faced a great impediment, a consequence of the nature of state obligations under the UNSC listing process. Under Article 25 and Chapter VII of the UN Charter, the UNSC can pass resolutions that have binding force on UN member states. Article 103 of the Charter further provides that ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ These obligations under the Charter include binding UNSC decisions made under the Charter, as confirmed by the ICJ in the Lockerbie case.

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Yet More on Immunity: Germany brings case against Italy before the ICJ

Published on December 26, 2008        Author: 

For those of you who are not particularly interested in the law relating to immunity, I apologise for three consecutive posts on the topic. However, this is a week in which there just happen to have been many developments on this topic. This week Germany has insituted proceedings in the International Court of Justice against Italy (see here) alleging that through its judicial practice Italy has in recently years repeatedly disregarded the jurisdictional immunity due to Germany as a Sovereign State. The Press Release from the ICJ states that, according to the German Application:

“The critical stage of that development was reached by the judgment of the Corte di Cassazione of 11 March 2004 in the Ferrini case, where [that court] declared that Italy held jurisdiction with regard to a claim . . . brought by a person who during World War II had been deported to Germany to perform forced labour in the armaments industry. After this judgment had been rendered, numerous other proceedings were instituted against Germany before Italian courts by persons who had also suffered injury as a consequence of the armed conflict.” The Ferrini judgment having been recently confirmed “in a series of decisions delivered on 29 May 2008 and in a further judgment of 21 October 2008”, Germany “is concerned that hundreds of additional cases may be brought against it”.

The Applicant recalls that enforcement measures have already been taken against German assets in Italy: a “judicial mortgage” on Villa Vigoni, the German-Italian centre of cultural exchange, has been recorded in the land register. In addition to the claims brought against it by Italian nationals, Germany also cites “attempts by Greek nationals to enforce in Italy a judgment obtained in Greece on account of a . . . massacre committed by German military units during their withdrawal in 1944”.

The case clearly raises the question whether foreign States are immune in civil proceedings concerning violations of human rights and international humanitarian law. The case law on this question has, in recent years, been divided Read the rest of this entry…

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