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REPORTS ARCHIVE FOR THE YEAR 2003
The following is a complete collection of InternationalLawHelp.com Reports for the year 2003.
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2003 Reports |
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Second Circuit Rules American Citizen Terror Suspect Jose Padilla Entitled to Lawyer
On December 18, a 3-judge panel of the Second Circuit Court of Appeals ruled 2-1 in Padilla v. Rumsfeld that Al Qaeda terrorist suspect Jose Padilla could not be detained indefinitely as an "enemy combatant" and denied access to a lawyer under the joint resolution conferring upon President Bush the authority to engage in military operations against Al Qaeda. Padilla was detained in May 2002 at Chicago's O'Hare Airport when he tried to re-enter the US. He is suspected of having been involved in a plot to build and deploy a "dirty-bomb" in the US. The Second Circuit relied upon the "Non-Detention Act" (18 U.S.C. § 4001(a) (2000)) as authority to conclude the indefinite detention of a US citizen on US soil was not lawful to the extent the Congressional joint resolution did not specifically confer upon the President this wartime power. Click here for a link to the Second Circuit's ruling in Padilla v. Rumsfeld on the Findlaw website (pdf file). Click here for a link to Judge Wesley's dissenting opinion in Padilla v. Rumsfeld on the Findlaw website (pdf file).
Saddam Hussein Captured, How Will He Be Tried?
Saddam Hussein's capture on Sunday, December 14 raises important questions about how he will be called to account for his crimes. As the dictator of Iraq for almost 30 years his international crimes can hardly be chronicled. The most likely possibility for his trial is a special tribunal made up of Iraqi and US officials. It is highly unlikely the US, as the occupying power in Iraq, will permit European countries other than the UK to have a say in how the trial will be conducted. First, many European countries failed to assist the US-UK military effort to overthrow the Baathist regime. Second, many European countries oppose the death penalty and both president Bush and the interim Iraqi authorities have expressed interest in seeking the death penalty against Saddam. The charges against him will likely include war crimes, crimes against humanity, genocide and aggression. As the legal framework for his trial unfolds, developments will be reported and analyzed here on the Reports Page.
InternationalLawHelp Salutes Professor Oscar Schachter at his Death at Age 88
On Saturday December 13, Columbia Professor Oscar Schachter passed away at age 88. He had a long and distinguished career as an international lawyer, professor and UN legal advisor. He leaves a wonderful legacy of scholarship having written numerous books and articles on the subject. Generations of international law students know him for his widely-used casebook, International Law: Cases and Materials which he co-authored with Louis Henkin, Richard Pugh and Hans Smit. His contributions to the field of international law will be missed.
Rwanda Tribunal Convicts Three Media Executives for Genocide Incitement
On Dec. 3, the International Criminal Tribunal for Rwanda (ICTR) convicted three Rwandan media executives of genocide for inciting numerous massacres through their newspaper and radio. The radio station would direct killers to specific locations and victims to make the ethnic cleansing more efficient. In the Rwandan genocide of the mid-1990's an estimated 800,000 Tutsis were killed at the hands of the Hutus. Two of the men received life sentences while a third was sentenced to 27 years. This case highlights the power of media in ethnic conflicts as an instrument of ethnic hatred and violence and potential accountability for those acts. At the Nuremberg trials, Nazi publisher Julius Streicher was similarly convicted for his aggressive use of media against the Jews and Jewish interest during the Nazi Holocaust. Today, media outlets in the Islamic world, some officially sponsored by governments, spew hatred and vitriol against Jews, Christians, Israel, the United States and Western interests in general.
Russia Rejects Kyoto Protocol
On Dec. 1st Russia indicated it would not ratify the Kyoto Protocol to the Framework Convention on Climate Change. Russia's ratification was necessary if Kyoto was to enter into force. The treaty calls for ratification by a sufficient number of states to equal 55% of the world's greenhouse gas emissions in the year 1990. Like the US, Russia expressed concerns about the economic impact of the greenhouse gas reductions called for under the Protocol. The Bush administration indicated in 2002 that it would reject Kyoto because of its potential impact on the US economy.
US Supreme Court Refuses to Hear Death Penalty Appeal on VCCR Violation
On Nov. 17, the US Supreme Court declined to hear an appeal in the case of Osbaldo Torres who is a Mexican national on death row in Oklahoma. Torres claims he was not advised of his rights to contact Mexican consular authorities at the time of his arrest. This right is guaranteed by Article 36 of the Vienna Convention on Consular Relations (VCCR) and follows a patter of cases where the US has been called to account for its failure to advise foreign nationals of their rights under the VCCR. Torres' case is one of several that comprise the subject matter of the Aveno case (Mexico v. USA) that is presently before the ICJ. Click on the names for dissents by Justices Breyer and Stevens maintaining the Court should have heard the appeal. Sponsors Note: For two articles authored by Howard S. Schiffman concerning the major VCCR cases where the US was a party see "Publications by Howard S. Schiffman" on his biography page.
US Supreme Court to Decide Whether Guantanamo Bay Detentions Appealable
On Nov. 10 the U.S. Supreme Court granted certiorari in Rasul v. Bush to determine whether or not the detentions of suspected terrorists at Guantanamo Bay may be appealed to the US federal courts. At present, approximately 700 suspected Al Qaeda and Taliban are being held pursuant to executive orders issued by president Bush since Sept. 11. While the Court will only consider the narrow issue of appealability, review by the Supreme Court of this case is a major victory for those concerned about the War on Terrorism's impact on constitutional rights. In March 2003, the DC Circuit upheld the provision of the executive order denying appellate review in federal court.
ICJ Decides Oil Platforms Case (Iran v. USA)
On November 6 the ICJ issued its decision in the Oil Platforms Case (Iran v. USA) that tested the legality of US military action taken against certain Iranian oil platforms during the Iran-Iraq war. The other key issue was the extent to which the damage to those platforms interfered with commerce between those two states as provided for in the US-Iran Treaty of Amity. The Treaty of Amity formed the basis of the Court's jurisdiction in the case. To summarize, the majority of judges did not find the US military action against those platforms to be a justified use of force under the "inherent right of self-defense" as recognized in Article 51 of the UN Charter. At the same time, the Court found that those actions did not constitute a violation of the treaty. A US counterclaim against Iran was also not upheld. Click here for a Press Release of the Decision on the ICJ website (full decision also available).
ICJ Announces it will Issue its Decision in the Oil Platforms Case (Iran v. USA)
On October 22 the ICJ announced it would release its decision in the Oil Platforms case (Iran v. USA) on Nov. 6th at 3pm at a public sitting. The case was filed by Iran in 1992 and arose from action taken by the US Navy during the Iran-Iraq war in 1987 and 1988 that damaged three Iranian oil platforms in the Persian Gulf. Iran claimed the actions were unjustified force while the US maintained it was a necessary and proportionate defensive measure to protect re-flagged Kuwaiti oil tankers. The jurisdiction for the ICJ in this case was predicated upon the compromissory clause of the 1955 Treaty of Amity between the US and Iran which neither state has officially abrogated since the 1979 Islamic Revolution in Iran. Click here for a Press Release on the ICJ website.
UN Lifts Sanctions on Libya
On September 12, following recent delays, the UN Security Council finally lifted sanctions imposed on Libya following the Pan Am 103 Lockerbie terrorist bombing. The lifting of sanctions comes after Libya agreed to accept responsibility for the terrorist act and pay compensation of up to $10 million for each of the 270 victims' families. Part of the delay was uncertainty over the French vote. France's vote to lift the sanctions, however, was secured when Libya approved a new settlement of $34 million for its role in a 1989 terrorist bombing of a French UTA plane in Niger in which 170 were killed. Click here for a link to a press release about the lifting of sanctions on the UN website.
Libya Agrees to Increase Amount Paid to France for 1989 Terrorism
Libya agreed in principle to increase the amount of compensation paid to France for the downing of a UTA plane over Niger in 1989 which killed 170. In 1999 Libya paid a total of $34 million after a French court convicted six Libyans in absentia for complicity in the attack. The 1999 settlement averaged less than $200,000 per victim. Most recently France sought a renegotiation of the amount after Libya agreed to pay $10 million to each of the surviving families of the 1988 Lockerbie bombing. The renegotiation of the amount paid to France is likely critical to secure France's vote on the Security Council to approve the Lockerbie settlement and the ultimate lifting of UN sanctions against Libya arising from the Lockerbie settlement.
Libya Accepts Responsibility for Pan Am 103 Lockerbie Bombing
In a carefully worded and hedged statement delivered to the President of the UN Security Council, Libya has formally accepted responsibility for the December 1988 Pan Am 103 terrorist bombing over Lockerbie, Scotland. In accepting responsibility, Libya has agreed to pay approximately $10 million to the families of each one of the 270 victims of the terrorist act. This is considered to be a prelude to a formal lifting of sanctions against Libya which were imposed against it by the Security Council in 1993. Litigation between Libya, the US and UK arising from the Lockerbie incident is still pending before the ICJ. UN Secretary General Kofi Annan has expressed his wishes that Security Council sanctions against Libya now be lifted. France, a permanent member of the Security Council, is reportedly opposing the lifting of sanctions unless and until the compensation it received from Libya for the downing of a French UTA jet over Niger in 1989 is renegotiated to a level commensurate with the proposed Lockerbie settlement. For that incident France received slightly more than $30 million where 170 people were killed. Click here for a link to Secretary General Kofi Annan's statement on the UN website.
New Montreal Convention Increases Liability of Airlines in Air Disasters; Will Replace Warsaw Convention
On August 1, the US Senate approved the new Montreal Convention which increases the amount families of airline disasters may sue for. Once it enters into force, the Montreal Convention will allow recovery of up to $141,000 regardless of the airlines fault. This increases the amount of the old Warsaw Convention which was $75,000. This will mainly affect air disasters outside of the US and non-US carriers. In 1996, US airlines and many major carriers doing business in the US waived the $75,000 limit under the Warsaw Convention after pressure from victims' families and the US Department of Transportation.
UN Security Council Approves Multilateral Force in Liberia to be Followed by Peacekeepers
On August 1, the UN Security Council, acting under Chapter VII of the UN Charter approved a multinational force to stem the violence in Liberia. Security Council resolution 1497 mandates the force to help implement the June 17, ceasefire agreement. In addition, following the implementation of the ceasefire, the resolution contemplates the force being replaced by a UN peacekeeping force no later than October 1, 2003. An additional feature of the resolution is it shields from criminal jurisdiction soldiers from states that are not parties to the Rome Statute of the ICC. Click here for a link to Resolution 1497 on the UN website.
Belgium Scales Back its Universal Jurisdiction Law
On August 1, responding to criticism, principally from the US, Belgium limited the scope of its universal jurisdiction law. The controversial law permitted Belgium to try those accused of war crimes and other serious international crimes from anywhere in the world even if there was no connection between Belgium and the accused or the victims of the crime. The new law will apply only if Belgium is the state of nationality of the accused or the victim. It also confers immunity on heads of state and other government officials visiting Belgium. Under the old version of the law politically motivated prosecutions against US President George W. Bush, UK Prime Minister Tony Blair and Israeli Prime Minister Ariel Sharon had been filed. US Secretary of Defense Donald Rumsfeld had recently indicated that the US would support moving NATO headquarters from Brussels unless the law was changed.
Congressional 9/11 Report Indicates Intelligence Lapses
On July 24, the long-awaited report on the 9/11 terrorist attacks was released by the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence. The Report indicated important intelligence and law enforcement failures; most notably, the failure of intelligence services and law enforcement agencies to communicate with each other and share information about the growing threat presented by Osama bin Laden and al Qaeda. Click here to read the Report on the GPO website.
OSCE Hosts International Conference on Anti-Semitism in Vienna
On June 19 and 20, Vienna hosted a conference addressing the rise of anti-Semitism, especially in Europe, in recent years. The conference was sponsored by the Organization for Security and Cooperation in Europe (OSCE) and was attended by 55 countries. The US was represented by former-New York mayor Rudolph Giuliani who spoke passionately about the legacy of anti-Semitism in Europe. The conference participants affirmed their commitments to combat anti-Semitism. Click here for a link to a report of the conference on the OSCE website.
ICJ Rejects Congo's Request for Provisional Measure Against France in "Certain Criminal Proceedings" Case
On June 17, the ICJ ruled to deny Congo its request for provisional measures against France which would have ordered France to cease its criminal investigation into the alleged international criminal activities of several Congolese officials. The case was brought by the Congo against France when France initiated investigations of crimes against humanity of Congo lese officials at the behest of various human rights groups. The Court indicated it did not find sufficient urgency to grant the request. Click here for a link to the Press Release on the Court's ruling on the ICJ website.
International Whaling Commission (IWC) Establishes New "Conservation" Committee
At the 55th annual meeting of the International Whaling Commission (IWC), held this year in Berlin, Germany, the delegates voted by a narrow margin to establish a new so-called "conservation" committee to streamline and oversee cetacean management practices. The establishment of the committee specifically designates whale conservation as a key objective of the IWC. This is a major victory for anti-whaling forces which for decades have battled the few remaining pro-whaling states seeking to resume commercial whaling. The formation of the new committee is particularly significant given the recent "growth spurt" of the IWC in the last two years where developing states have joined at the behest of the pro-whaling advocates. The closeness of the vote reflects the rejuvenated position of the whalers. The new committee will even include within its purview dolphins and porpoises, that is, small cetaceans, that have traditionally fallen outside the jurisdiction of IWC actions. The pro-whaling states of Norway, Iceland and Japan have decried the new committee and there is speculation among IWC observers as to whether or not these pro-whaling states will remain in the IWC or withdraw and form new organizations more sympathetic to whaling. The IWC is the product of the 1946 International Convention for the Regulation of Whaling (ICRW) (available on the Documents Page). A key reason for the discontent of whaling advocates is that the ICRW highlights the goal of stewardship of the whaling industry. In recent years, however, the IWC has acted aggressively to limit commercial whaling and conserve whale stocks. Click here for a link to the IWC website.
New Study Indicates Extent of Over-fishing and Ocean Crisis
A recent study reported in the journal Nature highlights the crisis in world commercial fisheries. This crisis is precipitated in large part by the growth of commercial fishing fleets the world over. Professors Ransome A. Myers and Boris Worm of Dalhousie University observed that 15 years of commercial fishing tended to reduce stocks by 80%. These biologists noted that fish stocks are presently 10% of what they were at pre-industrial levels. The conservation of commercial fish stocks has been a focus of law of the sea and international environmental law for decades. Numerous treaties and regional fishery organizations are tasked with the conservation and management of dwindling stocks. The study can be located in Volume 423 of Nature, pages 280-283 (May 2003).
WHO Approves Anti-Tobacco Treaty
On May 21, the 192 members of the World Health Organization (WHO) unanimously approved the first ever treaty aimed at limiting tobacco related deaths. The treaty which will be known as the Framework Convention on Tobacco Control (FCTC) was finally approved after the US dropped its demand for a reservations provision to be part of the agreement. Such a provision would have allowed the US to opt-out of key treaty provisions. The treaty requires members, among other things, to impose restrictions on tobacco advertising, sponsorship and promotion, establish new labeling and clean indoor air controls and strengthen legislation to address tobacco smuggling. Forty countries must ratify the treaty before it enters into force. The FCTC will be open for signature in Geneva from June 16-22, 2003 and then from June 30, 2003 through June 29, 2004 at UN headquarters in NY. Click here for a press release about the FCTC on the WHO website.
US Seeks Reservations to Anti-Tobacco Treaty
Under the auspices of the World Health Organization (WHO), for the past three years,171 countries have been negotiating an anti-smoking treaty. The treaty is known as the Framework Convention on Tobacco Control (FCTC) and would limit advertising for, and access to, tobacco products globally. The US is seeking the introduction of a reservations clause, very common in international law, that would allow the US, or any other member, to opt-out of specific treaty commitments. Anti-smoking advocates object to the inclusion of a reservations clause claiming it would eviscerate the operation of the treaty. The US has already successfully negotiated for the inclusion of a treaty provision obligating only those treaty commitments which are "in accordance with constitutional principles." The US claims this provision, as well as a reservations clause, is necessary because of the possibility that some commitments may violate the US Constitution. Specifically, the US is concerned that limitations on tobacco advertising may violate the rights of commercial speech protected by the First Amendment. Click here for further information on the FCTC on the "Framework Convention Alliance" website.
Process Forwarding International (PFI) Receives US Contract to Handle Service of Process Abroad
On April 15, the US Justice Department
announced that a private contract has been awarded to Process Forwarding
International (PFI), a Seattle, Washington based corporation to handle
service of process for US nationals under the Hague Convention of 15 November
1965 on the Service Abroad
US State Dept. Releases 2002 Human Rights Report
The State Department released its 2002 report on international human rights practices with a country-by-country analysis. Important US allies that have provide support and assistance in the war on terrorism, such as Saudi Arabia, Kuwait, Turkey and Uzbekistan, were sharply criticized in the report. In the past, many countries have complained of unfair treatment by the State Department in its annual review. Click here for a link to the 2002 Human Rights Report on the State Dept. website.
Judges of ICC Sworn In
On March 11, eighteen (18) judges were sworn in to preside over the new International Criminal Court (ICC). The 11 men and 7 women representing a variety of nationalities were sworn in in the Hague, Netherlands, where the court will have its seat. Notably absent from the ceremony was any official representation of the US government which adamantly opposes the court and is seeking arrangement to exempt its nationals from the reach of prosecution of the ICC. Click here for a link to the ICC website.
ICJ Orders US to Halt Executions of Three (3) Mexicans on Death Row
On February 5th in the case of Aveno and other Mexican Nationals (Mexico v. United States) the ICJ issued an order of provisional measures against the US indicating the US must take "all measures necessary" to halt the execution of three (3) Mexican nationals on death row in the US who were not informed of their right to contact their consulates at the time of their arrests. This right is codified in the Vienna Convention on Consular Relations (VCCR) and has been the subject of two other prior cases (LaGrand and Breard) against the US in the ICJ. The ICJ found that the three Mexicans on whose behalf the order was issued, are "at risk of execution in the coming months, or possibly even weeks." In the case, Mexico initially named 54 Mexican nationals on death row but 3 had their sentences commuted by Gov. Ryan of Illinois before he left office. In addition, the ICJ found that the remaining 48 Mexicans named were not in the same position (i.e., immediate risk of execution) as the three individuals on whose behalf the order was issued. Click here for a link to a Press Release about the ICJ's Order on the ICJ website. *Sponsor's Note: For two articles I've written on the VCCR issue focusing specifically on Breard and LaGrand, see: Howard S. Schiffman, Breard and Beyond: Consular Notification and Access Under the Vienna Convention, 8 Cardozo Journal of International & Comparative Law 27 (2000); Howard S. Schiffman, The LaGrand Decision, The Evolving Legal Landscape of the Vienna Convention on Consular Relations in US Death Penalty Cases, 42 Santa Clara Law Review 1091 (2002).
UN Begins Process of Selecting Judges of International Criminal Court (ICC)
The UN Security Council has begun the process of selecting the eighteen (18) judges that will serve on the new ICC. The ICC is scheduled to open and be ready to receive cases on March 11. As of the first week in February, eight (8) judges have been selected thus far. The judges include six women and two men form Brazil, Costa Rica, Ghana, Ireland, Mali, South Africa, South Korea and Trinidad and Tobago. Judges from European countries will likely be offered the remaining positions. For further information on the election of ICC judges click here for a link to the ICC website.
Mexico Files a Case in the ICJ Against the US alleging Multiple and On-going Violations of the Vienna Convention on Consular Relations; Seeks Provisional Measures to Delay Executions in 54 Cases
On January 9, the government of Mexico filed a case in the International Court of Justice (ICJ) against the US indicating that the US has violated, and continues to violate, its obligations of consular notification and access with respect to Mexican nationals. Article 36 of the Vienna Convention on Consular Relations (VCCR) requires a member state to notify detained foreign nationals "without undue delay" of their right to contact local consular officials to assist them. The US has an admittedly poor record of compliance with this treaty and has twice been the respondent in ICJ cases alleging similar violations. Specifically, the Breard case of 1998 and the LaGrand case of 2001 (see June 2001 Reports) alleged US violations of the VCCR in regard to Paraguayan and German nationals, respectively. In the instant case, Mexico is seeking an order of provisional measures requiring the US to delay executions in 54 cases of Mexican nationals on death row pending the ICJ's determination of the legal merits of those cases. Similar orders of provisional measures were issued in Breard and LaGrand. In LaGrand, the ICJ ruled that such provisional measures establish binding obligations in international law. Click here for a link to the Press Release announcing the filing of the case on the ICJ website. *Sponsor's Note: For two articles I've written on the VCCR issue focusing specifically on Breard and LaGrand, see: Howard S. Schiffman, Breard and Beyond: Consular Notification and Access Under the Vienna Convention, 8 Cardozo Journal of International & Comparative Law 27 (2000); Howard S. Schiffman, The LaGrand Decision, The Evolving Legal Landscape of the Vienna Convention on Consular Relations in US Death Penalty Cases, 42 Santa Clara Law Review 1091 (2002).
Fourth Circuit Court of Appeals Upholds "Enemy Combatant" Designation of US National Captured in Afghanistan
On January 8, a unanimous 3-judge panel of the Court of Appeals for the Fourth Circuit overturned a district court ruling that held an American citizen could not be detained as an "enemy combatant." Enemy combatants are denied access to a lawyer and other protections afforded in civilian criminal cases. This ruling allowing Americans to be tried as enemy combatants is a major legal victory for the Bush administration in the war on terrorism. Other legal matters will likely be decided by the federal courts in due course. The instant case was brought by relatives of Yaser Esam Hamdi, a Saudi born in Louisiana, who was arrested in Afghanistan fighting for the Taliban. While most detained in terrorist related cases are not American, the few there have been have been high-profile. In finding against Hamdi the court relied heavily on the traditional deference coordinate branches of government show to the executive in times of war. Although the court observed that constitutional protections should not be interfered with easily, the brief statement filed by the Department of Defense invoking national security considerations was sufficient to invoke deference to the executive branch in a time of war. The Fourth Circuit was careful not to rule on the question of whether or not the writ of habeas corpus is available to challenge such detentions. It will be interesting to see whether or not the US Supreme Court agrees to hear the appeal. Click here for a link to the 4th Circuit's opinion in Hamdi v. Rumsfeld in pdf format.