Haiti Cholera Battle Against UN Moves to US Court

Haiti Cholera Battle Against UN Moves to US Court

by Kristen Boon

http://opiniojuris.org/2013/10/09/haiti-cholera-battle-un-moves-us-courts/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+opiniojurisfeed+%28Opinio+Juris%29

After receiving a staunch “no” from the UN earlier this year, lawyers for Haiti Cholera victims filed a class action lawsuit in the Southern District of New York today.  The complaint is available here.   The complaint seeks certification of a class that is composed of cholera victims who are Haitian and US citizens. The basis of the class action is that the plaintiffs have a right to a remedy under Haitian tort law, and includes a request for relief on the basis of wrongful death, and infliction of emotional harm.  Moreover, in reference to international law, the plaintiffs assert:

Defendants UN and MINUSTAH have well-established legal obligations to provide redress to victims of harm caused by acts or omissions attributable to the Defendants, which includes the members of the proposed Class. The Convention on the Privileges and Immunities of the UN of 1946 (“CPIUN”) expressly requires Defendant UN to provide appropriate modes of settlement for third-party private law claims. The Status of Forces Agreement (“SOFA”) signed between Defendant UN and the Government of Haiti expressly requires the UN to establish a standing claims.

To date, the UN has denied legal responsibility on the basis of Article 29 of the Convention on Privileges and Immunities stating that the claim is not receivable.  Presumably, the justification is that this is a public rather than a private law claim, although the UN’s response did not spell this out, as I discussed in an earlier blog here.  What the UN has focussed on instead is a fund for improved sanitation and water infrastructure.

Pressure on the UN has mounted.  On Tuesday, the UN High Commission for Human Rights, Navi Pillay, urged the UN to compensate the victims, although she did not state where that money should come from. An important report produced this summer by students and professors at the Yale Law School Transnational Clinic has also called for compensation.   In addition, the UN Independent Panel of Experts convened in 2011 to investigate the source of cholera in Haiti published a new academic article this summer that concluded that MINUSTAH was the most likely source of cholera in Haiti.  The precise language they use is:

“The preponderance of the evidence and the weight of the circumstantial evidence does lead to the conclusion that personnel associated with the Mirebalais MINUSTAH facility were the most likely source of introduction of cholera into Haiti.”

Even Haiti, conspicuously silent about the potential responsibility of the UN for this outbreak, changed its tune at the recent General Assembly meetings and where its Prime Minister argued that the UN has moral responsibility for the outbreak.

The complaint deals only briefly with the question of privileges and immunities, which is likely to be the UN’s first defense.  As I noted in this blog, this will be an obstacle the plaintiffs are unlikely to surmount.  Nonetheless, I suspect the lawyers are seeking a different kind of victory here.  They are exposing the limits of the UN’s internal justice system, forcing the public to focus on the disastrous health consequences of the cholera epidemic in Haiti, and highlighting the accountability gap that has emerged in light of the refusal to establish a claims commission.

Haiti Cholera Update: The UN Doesn’t Budge

Haiti Cholera Update: The UN Doesn’t Budge

by Kristen Boon

Following the UN’s rejection of a demand for compensation for Haiti Cholera victims earlier this spring, the Institute for Justice and Democracy in Haiti challenged the interpretation and application of Article 29 of the Agreement on Privileges and Immunities, and formally requested a meeting with UN officials to discuss Petitioners’ claims.

The Plaintiffs asked for the UN to respond within 60 days.  That period ended on July 6, and sadly but perhaps unsurprisingly, the UN has not budged.  The UN responded to claimants, reiterating that the claims would involve a review of political and policy matters.  The other communication forthcoming during this period was a July 5 letter under the signature of Ban Ki-Moon to Maxine Waters, a Member of Congress.  This letter responds to a separate letter by Congresswoman Waters about the cholera epidemic, and reiterates that the UN has determined the claims are not receivable under Section 29 of the Agreement on Privileges and Immunities.

Criticism of the UN’s response to the Cholera claims has been widespread. As I noted in an earlierpost, the reliance on Article 29, which distinguishes between public and private claims, is questionable.   In a recent paper on the topic, Professor Frederic Megret notes that one of the problems of the public / private distinction is that due to the “internal, confidential and unilateral” character of the review boards’ procedure the UN has never provided a clear definition of public or private.  A guide to UN practice is available here.

The lawyers for the plaintiffs state that they will now file a case against the UN in a domestic court.   I predict this will be an uphill battle.  Although the UN could and sometimes does waive its immunity under Section 2 of the Agreement on Privileges and Immunities, its posture thus far suggests it will not do so here.  Assuming the UN asserts its privileges and immunities as an affirmative defense before a domestic court, it will probably be successful   There are some decisions in which courts are amenable to limiting the immunities of IOs where there is no available forum, employment cases such as Waite and Kennedy are an example.   If a court were to follow the “no reasonable alternative” reasoning in the Haiti case, the plaintiffs might have a shot.

A recent case against the UN in the Netherlands involving the massacre at Srebrenica illustrates the strength of the UN’s privileges and immunities. In the Mothers of Srebrenica judgement, the Hague Court of Appeals affirmed the UN’s absolute immunity, but found the Dutch state responsible under international law.  This was a compelling set of facts to safeguard IO immunities to be sure:  a peacekeeping mission, the use of force, and an alternative respondent:  the Dutch state.

The takeaway, I believe, is that domestic courts will not provide a satisfactory alternative either. One mechanism that is available – at least in theory –  to the plaintiffs is a request for an ICJ advisory opinion under Article 30 of the Agreement, if someone else takes up the cause:

SECTION 30. All differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of settlement. If a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the parties.

Under this provision, a UN organ could make the request, although again, this seems unlikely

ICC Decides on Immunities and Privileges of Defence Counsel and ICC Staff

ICC Decides on Immunities and Privileges of Defence Counsel and ICC Staff

Published on March 6, 2013        Author: Dapo Akande

http://www.ejiltalk.org/icc-decides-on-immunities-and-privileges-of-defence-counsel-and-icc-staff/

Last week, the Pre-Trial Chamber of the International Criminal Court issued a decision with important implications for the privileges and immunities of counsel acting at the ICC, and also of ICC staff. In its decision, the Pre-Trial Chamber confirmed that the immunities provided for in Article 48 of the ICC Statute apply to defence counsel and to staff of the ICC involved in the ICC proceedings against Saif Gaddafi. It also held “that the inviolability of documents and materials related to the exercise of the functions of the Defence constitutes an integral part of the treatment that shall be accorded to the Defence pursuant to article 48(4).” This means that these documents may not be seized by States, and in this particular case, the ICC held that Libya is under an obligation to return such seized documents.

The decision arose out of the detention in Libya, last June, of four members of staff of the ICC, including Melinda Taylor a lawyer at the Office of the Public Counsel for Defence (OPCD). The ICC staff were detained by the militia holding Saif Gaddafi (who is represented by the OPCD) when they were in Libya to meet with Saif. At time of the detention, I and others argued that these detained persons were entitled to immunity from criminal process in Libya (see previous post).

There are three interesting points that arise out of this decision. The first relates to the applicability of the Statute (and in particular Art. 48) to Libya. The second relates to which part of Art. 48 applies to defence counsel employed by OPCD. The third, and perhaps most important, point is that the decision  implies the applicability of the 2002 Agreement on the Privileges and Immunities of the International Criminal Court to States that have not ratified it.

First, in relying on Article 48, the Pre-Trial Chamber has confirmed the argument that I made at the time that this provision of the Statute is binding on Libya, though Libya is not a party to the Statute and though the Security Council did not say explicitly that the whole Statute is binding on Libya. The explanation for this is that Libya’s obligation, under UN Security Council Resolution 1970, is an obligation to cooperate in accordance with the Statute (see previous post).

The second point is that Pre-Trial Chamber relied only on Art. 48(4) which refers to the immunities of “counsel, experts, witnesses or any other person required to be present at the seat of the Court” but did not refer to Art. 48(3) which refers, inter alia, to the immunities of the “staff of the Registry.” In my previous post, I had argued that both are applicable to defence counsel provided by the OPCD. This argument is based on the fact that the OPCD is a part of the ICC Registry, though it is independent. The Pre-Trial Chamber decision may be seen as an implicit rejection of the argument I put forward but the Chamber did not elaborate on this. I would like to see an argument that says OPCD lawyers are not part of the registry staff though OPCD is a part of the Registry. The failure to refer to Art. 48(3) is especially curious given that not all of the four detained personnel were part of OPCD. Some were clearly Registry staff. So why not refer to the provision that best fits them?

The third point, and perhaps ultimately the most important, is the fact that the Pre-Trial Chamber not only “noted” 2002 Agreement on the Privileges and Immunities of the International Criminal Courtbut seemed to apply it. Art. 48 provides that the privileges and immunities it provides for exist “in accordance with the agreement on privileges and immunities of the Court”. In its decision, the Pre-Trial Chamber held that:

“in accordance with article 26 of the Agreement on Privileges and Immunities of the International Criminal Court, it is not for this Chamber to determine whether there are grounds for waiving the privileged nature of the Defence documents seized in Zintan.”

This suggests that the Chamber took the view that the provisions of the Agreement was determinative. Libya is not a party to this agreement and  it seems to me that the only way to argue that the Agreement is determinative is that Art. 48 suggests that it is. But if Art. 48 makes the Agreement on Privileges and Immunities binding on Libya, this suggests that the agreement is also binding for those States party to the Rome Statute, even if they have not ratified the Agreement. Such an argument would be far reaching as it would mean that States are bound by a treaty that they have not ratified. However, it is not easy to see what else Art. 48 of the Rome Statute means when it refers to immunities “in accordance with” the Agreement on Privileges and Immunities.

Section 502 of the Iran Threat Reduction and Syria Human Rights Act of 2012 lifts the Central Bank of Iran’s immunity under the Foreign Sovereign Immunity Act of 1976

http://www.reuters.com/article/2012/08/27/usa-iran-idUSL2E8JO8W920120827

RPT-INSIGHT-Tweak to US bill on Iran sanctions opens door to damages

Mon Aug 27, 2012     By Basil Katz

 Section 502 of the Iran Threat Reduction and Syria Human Rights Act of 2012 lifts the Central Bank of Iran’s immunity under the Foreign Sovereign Immunity Act of 1976 and effectively neuters the Bank’s defences in a case pending before the US District Court for the Southern District of New York in which plaintiffs are seeking to seize $1.75bn or Iranian assets to enforce an earlier judgment against Iran awarding $2.65bn in damages for its involvement, via Hezbollah, in the Lebanese civil war.

* Bill could unfreeze $1.75 billion for 1983 bomb victims

* Washington suspects Iran role in US Marine barracks attack

* Iran says sovereign immunity doctrine protects from payout

NEW YORK, Aug 24 (Reuters) - One way to win a court case is to get the United States Congress to change the rules of the game midstream.

A little-noticed provision tucked into the latest Iran sanctions bill may have done just that for American victims of a 1983 bombing of the U.S. Marine Corps barracks in Beirut.

The sanctions bill, signed by President Barack Obama on Aug. 10, set out additional penalties against Tehran to curb the country's nuclear ambitions.

The bill also specifically disarms claims the Central Bank of Iran has made in a legal battle in federal court in Manhattan over $1.75 billion in securities frozen in a New York bank account that the central bank says it owns.

The plaintiffs in that case are trying to get Tehran, through the Central Bank of Iran, to pay damages for Iran's suspected role in helping Hezbollah carry out the barracks attack during the civil war in Lebanon.

The $1.75 billion was uncovered by the U.S. Treasury Department in 2008 and sits in a New York branch of Citibank, part of Citigroup. Treasury says the money is effectively Iranian funds.

The Beirut plaintiffs' lawsuit, filed in 2010, argues that the funds should go toward paying a $2.65 billion damages award they obtained against Iran in 2007 and have so far been unable to collect.

In court papers, the Central Bank of Iran has argued that the funds are off limits from seizure under the doctrine of sovereign immunity, which holds that foreign states or their agents are not subject to another nation's laws.

But Section 502 of the sanctions law, officially known as the Iran Threat Reduction and Syria Human Rights Act of 2012, takes direct aim at that defense.

The section specifically declares that the Central Bank of Iran "is not immune" under the Foreign Sovereign Immunities Act of 1976, the U.S. law that Iran's central bank claims protects its funds from seizure.

It also states that the "financial assets that are identified" in the Manhattan case "shall be subject to execution or attachment ... to satisfy any judgment to the extent of any compensatory damages awarded against Iran."

Over the years, there have been billions of dollars in default judgments against Iran levied by U.S. courts in favor of Americans, but never collected. Language in the latest sanctions bill, which could be subject to legal challenge, appears to have brought the plaintiffs in the Manhattan case closer to seizing actual funds than in any other case.

David Lindsey, a New York-based lawyer for the Central Bank of Iran, also known as Bank Markazi, acknowledged that the new sanctions law could affect the Manhattan case.

"The purpose of this 10th inning change in the law was to do away with our defenses," Lindsey said. "No allegations have ever been made that the Central Bank of Iran was involved in the 1983 attack," he said.

Steven Perles, a lawyer for the Beirut plaintiffs, declined comment. The case was brought on behalf of Deborah Peterson, the personal representative of one of the deceased servicemen, and encompasses hundreds of individual plaintiffs.

"If this section stands, it does seem to overcome any defenses Iran might have," said Julian Ku, a professor at Hofstra University's School of Law.

Ku, who called the statute modification "unusual," said that "if the payment is made, I think it would be the first such payment, and certainly the largest ever paid out in a U.S. court against Iran."

To be sure, the plaintiffs must file supplemental briefs in light of the new legislation, and the judge must eventually decide whether to order that the funds be turned over - a process that could still take years.

A BIG ASSIST FROM CONGRESS

While Congress has previously intervened to help terrorism victims obtain compensation from foreign states,  it is rare for a law to directly address an active case, legal experts said.

"There is precedent for massive payouts, but this is a little bit unusual because it changes a law about Iranian sovereign immunity in just one case," said Roger Alford, a professor at the University of Notre Dame Law School. "How did the lawyers get Congress to do that?"

The amendment was introduced last winter by Senator Robert Menendez, a New Jersey Democrat. A senior aide to Menendez said the lawmaker's efforts were spurred on by a visit from a victim's family from his home state.

The aide, who spoke on condition of anonymity, said the purpose of the legislation was to ensure that claims against Iran were in fact actionable.

"The amendment sends a message not just to Iran but to the other states that support terrorism that the U.S. will allow the seizure and attachment of assets to satisfy judgments against those countries," the aide said.

Experts and lawyers involved in such cases said the defendants in the Manhattan case may seek to challenge the constitutionality of Congress changing the statute, but that this would likely be a losing battle. One way would be to argue that the legislative branch had improperly interfered with judicial matters.

'INNOCENT THIRD PARTY'

There is another wrinkle in the claims over the $1.75 billion held in a Citibank account. The money was deposited there by Luxembourg-based bank Clearstream, which holds Iranian funds in accounts in Luxembourg.

Clearstream said in court papers in July that if it is forced to turn over the $1.75 billion in New York, it may be barred from docking an equivalent sum from a Bank Markazi account in Europe because of European sanctions against Iran.

Clearstream has argued that since the Iranian assets were booked in Europe, they could not be considered to be in the United States.

The sanctions law, however, said that a sum held in the United States that was "equal in value" to Iranian assets held abroad could be attached.

A spokesman for Clearstream's law firm, White & Case, declined comment.

FEEDING FRENZY

Ever since the Menendez amendment was introduced, other groups of plaintiffs who have won judgments against Iran have expressed interest in getting a piece of any possible payout.

Lawyers close to the case in New York say the $1.75 billion would currently be shared among about 1,350 people, which includes families of victims of a 1996 truck bomb attack at a U.S. military complex in Khobar near the Saudi Arabian oil city of Dhahran. The attack killed 19 soldiers and injured nearly 400.

Five days after Obama signed the sanctions bill, the Peterson plaintiffs sued London-based bank Standard Chartered seeking compensation over its concealment of Iran-linked transactions, citing the Beirut bombing, which killed 241 U.S. servicemen.

Experts say the U.S. State Department has been reluctant to push for enforcement of existing money judgments against Iran because they could serve as a potential lever in negotiations with Tehran, while levying the $1.75 billion would have only a minimal impact.

"While the assets involved are substantial," said Suzanne Maloney, a former State Department adviser who now works at the Brookings Institution's Saban Center for Middle East Policy, "I don't believe they are perceived as a meaningful bargaining chip with Tehran on the nuclear issue or other elements of concern with respect to Iranian policy."

The case is Peterson v. Islamic Republic of Iran, U.S. District Court for the Southern District of New York, No. 10-cv-04518.

Swiss Court Finds No Immunity for the Former Algerian Minister of Defence Accused of War Crimes

http://www.ejiltalk.org/swiss-court-finds-no-immunity-for-the-former-algerian-minister-of-defence-accused-of-war-crimes-another-brick-in-the-wall-of-the-fight-against-impunity/

Swiss Court Finds No Immunity for the Former Algerian Minister of Defence Accused of War Crimes: Another Brick in the Wall of the Fight Against Impunity

Aug 15,2012    Gabriella Citroni

Gabriella Citroni is Senior Researcher in International Law and Lecturer in International Human Rights Law at the University of Milano-Bicocca. Although she is Senior Legal Adviser for TRIAL, a Switzerland based NGO that filed the criminal complaint in the case discussed below, she has not been involved in this case.

On 25 July 2012 the Swiss Federal Criminal Court issued a decision (which is available, in French, here) whereby it denied the existence of immunity ratione materiae for a former Algerian Minister of Defence accused of war crimes. This decision revives the ongoing debate on the sensitive issue of immunity of State officials from foreign criminal jurisdiction and opens up for new perspectives for the application of the principle of universal jurisdiction. It also deals with other relevant matters related to the struggle against impunity.

On 19 October 2011, TRIAL, a non-governmental organization active in the field of human rights headquartered in Switzerland filed a criminal complaint against Mr. Khaled Nezzar, accusing him of war crimes committed during the Algerian civil war (1992-2000). On 19 and 20 October 2011, two individuals of Algerian origin enjoying the status of refugees in Switzerland (one of whom acquired Swiss nationality), also filed criminal complaints against Mr. Nezzar, alleging that they were subjected to torture in 1993.

Mr. Khaled Nezzar, a former general, was Chief of the Algerian Army in 1988, later promoted to Chief of Staff and subsequently appointed as Minister of Defence. During the same period he also was a member of the “High Council of State” (Haut Comité d’Etat, hereinafter “HCE”), which was a collegial body established on 14 January 1992 to replace the President. The HCE functioned until January 1994 and during this period it was entrusted with “all the powers attributed by the Constitution to the President of the Republic”.

When the criminal complaints were filed, Mr. Nezzar was staying in a hotel in Switzland while in transit through that country. After his arrest, he appeared before the prosecutor (Ministère public de la Confédération, hereinafter “MPC”) in proceedings lasting for two days. As a result of a promise to participate in subsequent proceedings, the prosecutor withdrew the measures restricting Mr Nezzar’s liberty and he returned to Algeria, where he is currently residing.

In December 2011 the lawyers representing Mr. Nezzar filed an appeal challenging the proceedings. The criminal investigation was accordingly suspended and the Federal Criminal Court in Bellinzona was seized of the matter. Mr. Nezzar’s counsel argued, among other things, that there was a violation of the principle of non-retroactivity of criminal law; that the exercise of criminal jurisdiction by Swiss authorities would require the existence of a strict link between the accused and Switzerland which, in the specific case, did not exist; that the exercise of criminal jurisdiction by Swiss authorities would be conditional on a refusal of an extradition request by the State concerned; and that Mr. Nezzar would enjoy immunity ratione personae and ratione materiaefor the period between 14 January 1992 and 30 January 1994, as Minister of Defence and member of the HCE.

Some Challenging Precedents concerning Immunity of State Officials from Foreign Criminal Jurisdiction

When dealing with cases as the one at stake, the much debated obiter dictum in para. 61 of the International Court of Justice’s Judgment in the Arrest Warrant case (Democratic Republic of the Congo v. Belgium) (2002) can be seen as a stumbling block. In that paragraph, the Court stated that:

“[…] provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity […]” (para. 61, emphasis is added).

Furthermore, in the 2011 Report of the International Law Commission on immunity of State officials from foreign criminal jurisdiction, the Special Rapporteur (M. Roman A. Kolodkin) “while acknowledging the ongoing debate and the diverse opinions that exist in relation to the topic, emphasized the importance of looking at the actual state of affairs as the starting point for the Commission’s consideration of the topic and explained that it was from the perspective of the lex lata, that he had proceeded to prepare his report”. According to the Special Rapporteur, “immunity of a State official from foreign criminal jurisdiction was the norm and any exceptions thereto would need to be proven” (UN Doc. A/66/10, para. 108). The Special Rapporteur observed that State officials enjoy immunity ratione materiae in respect of acts performed in an official capacity since these acts are considered acts of the State and this includes unlawful acts and acts ultra vires.

When it comes to former State officials, the Special Rapporteur stated that they “continue to enjoy immunity ratione materiae with respect to acts undertaken by them in an official capacity during their term in office” but such immunity “did not extend to acts which were performed by an official prior to his taking up office and after leaving it” (para. 109). The Special Rapporteur further observed that arguments had been advanced regarding exceptions to immunity ratione materiae where State officials are accused of crimes under international law. Nevertheless, referring to various rationales put forward in the doctrine and in certain judicial decisions justifying such exceptions, the Special Rapporteur “remained unconvinced as to their legal soundness. He further expressed doubt that any justification for exceptions could be considered having emerged as a norm under international law. Upon careful scrutiny, none of the cases referred to by various advocates for exceptions to immunity gave evidence against immunity” (para. 113).

The rigid approach undertaken by the Special Rapporteur was subjected to criticism within the Commission. Some members stated that the “principle of non-impunity for grave crimes under international law constituted a core value of the international community which needed to be considered while examining the question of immunity. The topic would thus be more appropriately addressed from the perspective of hierarchy of norms; or norms between which there existed some tension” (A/66/10, para. 124). Hopefully international law will progressively develop in this direction in the near future.

The Decision of the Federal Criminal Court – Jurisdiction

On 1 January 2011 the Swiss Criminal Code was amended and sections 12bis, 12ter and 12quarter were introduced, respectively codifying crimes against humanity, war crimes and genocide (the latter already existed in the Swiss criminal legislation, although in more restrictive terms, while war crimes were codified in the Military Criminal Code in slightly different terms as well). On this occasion, Art. 264m of the Criminal Code entered into force, establishing that “whoever commits abroad one of the crimes codified in sections 12bis and 12ter or in Art. 264k can be judged and sanctioned if he or she is in Switzerland and is not extradited or surrendered to an international criminal tribunal whose competence is recognized by Switzerland. […]”. In the opinion of Mr. Nezzar’s counsel these provisions would not be applicable to him, as they entered into force in 2011, while the crimes for which he was accused took place in 1992 and 1993. In their view, application of Art. 264m to Mr. Nezzar would violate the principle of non-retroactivity of criminal law.

The Federal Criminal Court rejected this argument, holding that non-retroactivity is not applicable to procedural rules and in particular to provisions regulating the competence of domestic authorities. Thus, Art. 264m of the Criminal Code is applicable to Mr. Nezzar’s case and the Swiss prosecutor is competent to conduct a criminal investigation (para. 2.3 of the decision).

With regard to the requirement of the presence of the accused on the Swiss soil for the exercise of criminal jurisdiction by Swiss authorities, the Federal Criminal Court recalled that the “presence on the territory of the accused” when a criminal investigation is opened is indeed required. However, the fact that the accused, as in the specific case, subsequently leaves the country, does not automatically extinguish the competence of Swiss authorities to judge and sanction the person concerned. The prosecutor is left with the options to suspend, close or continue the investigation. According to the Federal Criminal Court:

“the effectiveness of criminal investigation of particularly serious crimes that, for their own nature, are committed abroad by foreigners who occasionally visit, or transit through, Switzerland would be hindered. In this light, a too narrow interpretation of the requirement that the accused is present on the Swiss territory would basically leave it to the perpetrator of the crime to decide about the potential investigation. […] Consequently, the presence of the accused in Switzerland at the moment of the convocation and interrogation by the prosecutor is enough. The mere fact that at present he is no longer in the country, is not enough to hinder the proceedings opened by the MPC” (para. 3.1 of the decision, unofficial translation by the author).

The counsel of Mr. Nezzar argued that customary international law required a “strict link” between the accused and the country concerned. This argument was firmly rejected by the Federal Criminal Court (para. 3.3.2 of the decision).

In the appeal filed by Mr. Nezzar’s counsel it was further alleged that Swiss authorities could exercise their jurisdiction only if extradition of the accused to Algeria was impossible. The Federal Criminal Court also rejected this argument. According to the tribunal, it is true that prosecution in the country where the crime has been committed or in the country of origin of the accused is to be preferred in principle. If extradition can be realistically envisaged, then Swiss authorities are competent only if the other State expressly or implicitly renounces criminal investigation. In previous decisions, the Federal Criminal Court had already held that “the phrase ‘if he or she is not extradited’ must be interpreted as the simple fact that the accused is not transferred, notwithstanding the reasons for this” (para. 3.4 of the decision, unofficial translation by the author).

In the case of Mr. Nezzar, Algeria did not request his extradition. After having been heard by the MPC, Mr. Nezzar spontaneously returned to Algeria, where he is currently living. No criminal investigation has ever been launched against Mr. Nezzar in Algeria, nor could it. In fact, the Federal Criminal Court recalled the existence of an amnesty law in Algeria (order No. 06-01 of 27 February 2006 to implement the Charte pour la paix et la reconciliation nationale “Charter for Peace and National Reconciliation”), according to which “no proceedings may be instituted individually or collectively against any of the components of the defence and security forces of the Republic for actions taken to protect persons and property, safeguard the nation and preserve the institutions of the Republic of Algeria” (Art. 45). No exception for international crimes is envisaged. Furthermore, Art. 46 of the same law prescribes a penalty of imprisonment from 3 to 5 years and a fine for anyone who “attacks the institutions of the State party, impugns the honour of its officials or tarnishes the image of the State abroad”.

In the opinion of the Federal Criminal Court, the mere existence of these provisions makes the prosecution of Mr. Nezzar in Algeria impossible and therefore, when the MPC decided to launch the criminal investigation in Switzerland he had enough concrete elements to consider that Algeria would not submit any request to extradite the accused. It follows, applying the principle aut dedere aut judicare, that Swiss authorities are competent. Further, surrender to the International Criminal Court would not have been an option either, as Algeria has not ratified the Rome Statute.

The Decision of the Federal Criminal Court – Immunity and International Crimes

Turning to the core argument of Nezzar’s counsel, that is the alleged immunity of Mr. Nezzar in view of his position at the time of the events (Minister of Defence and member of the HCE exercising presidential functions), it is interesting to recall that on 21 November 2011, the Directorate of Public International Law within the Federal Department of Foreign Affairs (Direction du droit international public du Département federal des affairs étrangères), upon the request of the MPC, expressed the opinion that the accused “in his capacity as former Minister of Defence of the Algerian Republic, continues to enjoy immunity from the jurisdiction of Swiss authorities for all the acts committed in the exercise of his official functions, but not for those committed in a private capacity during his term of office or for the acts committed prior or after such period” (para. E of the decision of the Federal Criminal Court, unofficial translation by the author).

This, coupled with the obiter dictum of the International Court of Justice in theArrest Warrant case and the rigid and narrow approach to the issue of exceptions to the immunity ratione materiae of former State officials expressed by the Special Rapporteur within the International Law Commission, cast serious shadows on the chances of success of criminal prosecution of Mr. Nezzar by Swiss authorities.

Nevertheless, the Federal Criminal Court undertook a different approach, following the path set forth by the House of Lords in the Pinochet case and by the Gerechtshof of Amsterdam in the Bouterse case and thus adding another brick in the wall of the fight against impunity. In this regard, the Federal Criminal Court held that it is “undeniable that there is an explicit trend at the international level to restrict the immunity of (former) Heads of State vis-à-vis crimes contrary to rules of jus cogens” (para. 5.3.5 of the decision, unofficial translation by the author).

With regard to the alleged immunity ratione personae of Mr. Nezzar, the Federal Criminal Court held that the fact that when the events took place he was the Minister of Defence – besides being a member of the HCE – was per se enough to guarantee him immunity ratione personae during his official term. Nevertheless, such immunity did not exist anymore.

With regard to immunity ratione materiae the Federal Criminal Court stated that:

“[…] it would be contradictory and futile to, on the one hand, affirm the intention to combat against these grave violations of the most fundamental human values and, on the other, to accept a wide interpretation of the rules governing functional or organic immunity (ratione materiae), which would benefit former State officials with the concrete result to hinder, ab initio, any investigation. In such case, it would be difficult to admit that conduct contrary to fundamental values of the international legal order can be protected by rules of that very same legal order. Such situation would be paradoxical and the criminal policy adopted by the legislator would be condemned to remain a dead letter in almost all cases. This is not what the legislator wanted. It follows that, in the present case, the accused cannot claim any immunity ratione materiae” (para. 5.4.3 of the decision, unofficial translation by the author).

Mr. Nezzar can therefore be tried in Switzerland for war crimes. The rather simple, but very neat and logical reasoning of the Swiss Federal Criminal Court is fully convincing where international crimes and gross violations of human rights are at stake. Core human values leave no room for hypocrisy or subtle but potentially misleading considerations concerning impacts on international relations and political ramifications. The fight against impunity for serious crimes under international law imposes on all States the obligation to place justice above other considerations, especially immunity of State officials.

Immunity Deal in Yemen - President Ali Abdullah Saleh

Immunity Deal in Yemen

http://blog.amnestyusa.org/middle-east/immunity-deal-in-yemen/

BY ALIREZA AZIZI , November 28, 2011 

After many months of back and forth negotiations, last week President Ali Abdullah Saleh, finally singed the Gulf Cooperation Council (GCC) agreement for a power-transfer. Even though the details of the full agreement have not been made public, it is widely believed that the agreement offers the president and some others government officials immunity from criminal investigation and prosecution.

Under the GCC agreement, president Saleh will retain the title of president until the new presidential election takes place within 90 days. But he will hand over some of the presidential powers to Vice-president Abd Rabbu Mansour Hadi, to implement the agreement. A member of the opposition will head a government of national reconciliation for the next two years. President Saleh, who has been in power for 33 years and has hinted at stepping down several times in the past several months, only to change course later.

Unarmed protesters have marched in different cities in Yemen opposing the deal, calling for Saleh and other officials to stand trial for their role in abuses. Over the past 10 months, more than 200 people have been killed and thousands injured as security forces and armed supporters of the president Saleh attempted to quell mostly peaceful pro-reform demonstrators.

Amnesty International and the UN Office of the High Commissioner for Human Rights have called for an independent, international investigation into Yemen’s ongoing human rights violations.

There cannot be a true reform and justice without accountability, and the only way to ensure accountability is to carry out an independent, international investigation into the allegations of serious crimes under international law.

As Amnesty International has said “immunity leads to impunity” 

US court (D.D.C.) dismisses lawsuit under TVPA against Sri Lanka president based on personal immunity

http://www.lawfareblog.com/2012/03/tvpa-lawsuit-against-sri-lanka-president-dismissed-after-administration-submits-delayed-suggestion-of-immunity/

TVPA Lawsuit Against Sri Lanka President Dismissed, after Administration Submits Delayed Suggestion of Immunity

by John Bellinger

On February 29, Judge Kollar-Kotelly of the District Court for the District of Columbia dismissed a lawsuit brought under the Torture Victim Protection Act against President Rajapaksa of Sri Lanka, based on a Suggestion of Immunity filed on January 13 by the Obama Administration. 

The suit against Rajipaksa was filed in January 2011 by families of individuals allegedly killed during the civil war in Sri Lanka by Sri Lankan security services under his command responsibility. 

the Administration’s delay in recognizing the immunity of a sitting head of state

The Administration delayed filing its Suggestion of Immunity for more than nine months after receiving a request for immunity from the Sri Lankan Government.  The Administration did not file until after Judge Kollar-Kotelly formally requested the views of the U.S. Government.

On January 13, 2012, the Department of Justice filed a Suggestion of Immunity (DO- not State Dept) asserting that “President Rajapaksa, as the sitting head of a foreign state, enjoys head of state immunity from the jurisdiction of U.S. courts in light of his current status.

President Rajapaksa is entitled to immunity from the jurisdiction of this Court over this suit.”  The Justice Department’s filing attached a letter from State Department Legal Adviser Harold Koh stating that the “Department of State recognizes and allows the immunity of President Rajapaksa as a sitting head of state from the jurisdiction of the United States District Court in this suit.”  Judge Kollar-Kotelly held that the Suggestion of Immunity was binding on the Court.

The Administration’s Suggestion of Immunity for Rajapaksa is consistent with longstanding State Department practice.  However, the Administration’s delay in recognizing the immunity of a sitting head of state is unusual and may be another indication that Obama Administration officials want to appear to be more supportive of human rights litigation in U.S. courts against foreign government officials. 

This is the second time the Administration has delayed in asserting immunity for a sitting head of a foreign state.  Last year, in an Alien Tort Statute case, the Administration waited for more than a year after receiving a formal request for immunity from the Rwandan government before filing a Suggestion of Immunity for Rwandan President Paul Kagame. 

A policy of delaying recognition of the immunities of foreign government officials in U.S. courts is likely to be viewed by other countries as inconsistent with international law norms and could have adverse reciprocal implications for U.S. government officials (including Obama Administration officials) who may be sued in foreign courts (for example, for drone strikes). 

(Disclosure: The Sri Lankan government consulted me for advice in this matter.)

http://www.bbc.co.uk/news/world-asia-17218697

US court dismisses lawsuit against Sri Lanka president

1 March 2012  

in her ruling she said that the dismissal was in "no way a reflection of the merits of plaintiffs' claims or defendant's defences"

The plaintiffs included families of students shot dead in the town of Trincomalee six years ago, and relatives of aid workers for a French organisation killed near there in August 2006.

No-one has been prosecuted over the two sets of killings.

The plaintiffs say they were killed by the security forces under Mr Rajapaksa's control but the government has sought to implicate the Tamil Tigers.

Also taking part in the lawsuit were relatives of a family killed as the military crushed the Tamil Tigers in 2009.

They allege the four people died in naval firing on displaced civilians in the government-declared no-fire zone.

ICJ Decision in Jurisdictional Immunities of the State (Germany v. Italy)

http://www.lawfareblog.com/2012/02/paul-stephan-on-icj-decision-in-jurisdictional-immunities-of-the-state-germany-v-italy-2/

Paul Stephan on ICJ Decision in Jurisdictional Immunities of the State (Germany v. Italy)

by Benjamin Wittes

Paul Stephan, the John C. Jeffries, Jr. Distinguished Professor of Law at the University of Virginia and a former counselor on international law in the U.S. Department of State, has the following analysis of the International Court of Justice’s decision Friday in Jurisdictional Immunities of the State (Germany v. Italy):

On Friday, the International Court of Justice (ICJ) handed a victory to traditional conceptions of international law and a setback to an effort to privilege international human rights over other aspects of the international legal system. Its decision in Jurisdictional Immunities of the State rejected Italy’s attempt to create an exception to sovereign immunity in civil cases based on claims of grave human rights abuses. The decision not only rebukes Italian and Greek courts, which earlier in this decade had opened themselves to claims based on Germany’s World War II atrocities, but also may cast a shadow over some aspects of human rights litigation in the United States. One can find in the decision, and particularly in the concurring opinion of Judge Keith (New Zealand), support for the argument that the exercise of universal civil jurisdiction, which most U.S. human rights litigation does, violates international law.

A Greek court first opened the door to war crimes civil suits, although a special constitutional court there later repudiated the notion that an exception to sovereign immunity exists for human rights cases. Italy’s courts, including its Supreme Court, later embraced this exception to sovereign immunity. After successful plaintiffs attached a villa in Italy belonging to Germany to enforce their judgment, and the Italian courts also recognized a Greek judgment as enforceable by their courts, Germany invoked the ICJ’s jurisdiction. Italy has neither a statute nor any treaty obligation regarding sovereign immunity, but its courts purport to apply customary international law in this area. Italy consented to the ICJ’s jurisdiction but sought to add a counterclaim for reparations, in spite of a peace treaty that waived all such claims against Germany. In 2010 the ICJ determined that it lacked jurisdiction to decide the counterclaim, over a dissent by Judge Cançado Trindade (Brazil). On Friday the court issued a decision in favor of Germany. President Owada wrote the opinion, in which eleven other judges joined. Judges Cançado Trindade, Yusuf (Somalia) and Gaja (an ad hoc judge from Italy) dissented, although only Cançado Trindade asserted that international law generally privileges human rights claims over rules based on the underlying state structure of international law.

For the majority, sovereign immunity from civil suits rests firmly on the concept of sovereign equality of states, which it described as “one of the fundamental principles of the international legal order.” Another fundamental principle, however, is that “each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory.” Vindication of sovereign equality through immunity thus impairs a sovereign’s jurisdiction over events on its territory, such as the war crimes that Germany committed on Greek and Italian soil. The court depicted the evolving law of sovereign immunity as balancing these principles, with the norm one of immunity and the exceptions reflecting circumstances where a state’s sovereign character was not seriously impaired. (DO- seems to refer to restrictive theory)  Although many states and a few treaties have recognized such an exception for torts occurring on the territory of the state seeking to assert jurisdiction, none had extended this exception to military acts occurring during an armed conflict. The majority regarded military operations as being at the core of sovereign character, and violations of the laws of war as subject to punishment by the international system, not by national courts imposing tort liability on foreign states. (DO-  Foreign Sovereign Immunities Act (FSIA))

The majority also rejected the argument that violations of the so-called peremptory norms (jus cogens) of international law demanded a different result. First, it observed that the assertion of jurisdiction, and hence the infringement of foreign sovereignty, occurs at the outset of a proceeding, before any attempt to assess the merits of the claim. Recognition of a jus cogens exception would mean that immunity could “in effect be negated simply by skillful construction of the claim.” Moreover, the question of wrongfulness under international law, even as to severe breaches of fundamental human rights, is independent of the question of how to redress that wrong. A rule of sovereign immunity, it asserted, does “not derogate from those substantive rules which possess jus cogens status.” After a careful survey of existing treaties, domestic legislation, and judicial practice, the ICJ determined that Italy stood alone in claiming a judicial power to vindicate core human rights against a foreign state through civil litigation, and in doing so it violated the customary international law of sovereign immunity.

Judge Cançado Trindade’s dissent is interesting for its methodology as much as its conclusion. He defended a jus cogens exception to sovereign immunity not on the basis of any official acts of governmental authorities that might be seen as indicating the acceptance of such an exception. Rather, he asserted that the advancing progressive nature of international law, as expressed by reputable scholars and other jurists, demanded such a rule, regardless of state consent. His argument in effect removes nations, or at least the governments that represent them, from international law.  (DO- Judge Cancado seemed to fail provide evidence of state practice)

Because the case concerned sovereign immunity and not the right of a sovereign to entertain civil suits for misconduct by aliens on foreign territory, the principle of universal civil jurisdiction was not at issue. But some have argued (including amici filing briefs in the pending Supreme Court case, Kiobel v. Royal DutchPetroleum Co.), and Judge Keith in his concurrence agreed, that sovereign immunity and a general prohibition of extraterritorial jurisdiction both rest on the fundamental principle of sovereign equality. Purporting to prescribe rules for conduct in a foreign country that neither involves the regulating sovereign’s subjects nor produces a significant impact on its economy, the argument goes, intrudes on the sovereignty of a territorial state every bit as much as subjecting that sovereign to judicial jurisdiction.  Absent the territorial sovereign’s consent, such regulation violates international law. By indicating that there exists no jus cogens exception to immunity from judicial jurisdiction, the Jurisdictional Immunities judgment may imply that there also exists no such exception to immunity from prescriptive jurisdiction. If so, much of what U.S. human rights litigation does violates international law.

(DO –

“the regulating subject” – territorial, nationality, and passive; a significant impact – protective

The author argues much of US human rights litigation violates international law because there exists no jus cogens exception to immunity from judicial jurisdiction.

What about the Grave Breaches regime or genocide that is widely believed to constitute CIL? The alleged perpetrator who is not a national of a state party cannot be brought to court? criminal v. civil suit ; arm of government or non-state actor)

 The Supreme Court granted certiorari in Kiobel to consider a separate question, namely the liability of corporations under the federal common law that derives from the so-called Alien Tort Statute. But the extraterritoriality issue lurks in the case, as the dispute involves conduct in Nigeria harming Nigerians by the Nigerian subsidiary of an Anglo-Dutch family of companies. Other cases coming out of the lower courts and awaiting the resolution of Kiobel, including Sarei v. Rio Tinto in the Ninth Circuit, also raise the issue. At some point the Court will have decide whether, as the Jurisdictional Immunities judgment indicates, vindication of human rights must give way to the core principles of sovereign equality, or whether the United States, like Italy, should go its own way in spite of the international system.

= == = = =  == = = = = = == = = =

http://opiniojuris.org/2012/02/07/icj-issues-jurisdictional-immunities-judgment/

ICJ Issues Jurisdictional Immunities Judgment

by Ingrid Wuerth

[Ingrid Wuerth is Professor of Law at Vanderbilt Law School and Director of Vanderbilt's International Legal Studies Program.]

The International Court of Justice has issued its judgment in Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). Germany won, as most observers had predicted. The dispute arose out of a series of decisions by Italian national courts denying immunity to Germany for conduct that took place at the end of World War II. They include the well-known Ferrinicase as well as cases brought in Italy to enforce judgments from Greek courts that similarly denied immunity to Germany for events related to the 1944 Distomo massacre. Italy argued for an exception to immunity on the grounds that (1) some of the conduct took place on the territory of the forum state and because (2) the conduct constituted serious violations international law including jus cogens norms.

The Court rejected the first argument, concluding that State immunity protects acta jure imperii by organs of a State in the conduct of armed conflict, even if the relevant acts take place on the territory of the forum State. The Court also rejected the second argument, relying on conventions (¶ 89) and domestic legislation, judgments of national courts (including Greek cases after the initial Distomodecision) (¶¶ 83-85, 96) and the ECHR (¶ 91), distinguishing Pinochet as relating to criminal cases against individuals (¶ 87), and noting Italy’s own statements in domestic litigation that this area of law is unsettled and undergoing change (¶ 86). Over at Lawfare, Professor Paul Stephan provides an excellent summary of the judgment, including Judge Trindade’s dissent, and a discussion of the possible impact of this judgment on U.S. human rights litigation.

Germany was widely expected to win this case because state practice generally supports the immunity of states (even for violations of international humanitarian law and jus cogens norms), as the judgment details. Rather than further describing the Court’s reasoning, I want to consider the effect of judgment on two other issues.

First, to what extent does the Court leave the door open to progressive development of immunity law by national courts? One might accept the Court’s conclusions about the law today, but still hope to see national courts developing new exceptions to the state law of immunity, as they did in the commercial activity context. The Court’s reasoning has made that somewhat more difficult by rejecting a case-by-case balancing approach to immunity that might encourage courts to deny immunity based on the underlying conduct or the failure of the state to make adequate reparations. (¶¶ 106, 56, 82). This aspect of the Court’s reasoning was criticized in the separate opinion of Judge Bennouna and the dissenting opinion of Judge Yusuf. On the other hand, the costs that this Judgment will ultimately impose on Italy are unclear. The Court does require Italy to reverse the effects produced by the opinions of its national courts (¶ 137), but it also indicates its surprise and “regret” that Germany has denied compensation to the Italian victims bringing these claims (¶ 99). Further negotiations on both fronts seem likely. If the costs of denying state immunity do not appear very high, perhaps in the future national courts will again deny state immunity under different factual circumstances, especially where their own executive branches do not clearly support the immunity of the state that has been sued.

A second question is what effect this judgment will have on the much more controversial question of the functional immunity (ratione materiae) of individual government officials who are not entitled to status-based immunity (ratione personae).  

(DO- this is on the same setting of Filartiga case)

Some commentators argue that some individuals accused of international crimes are not entitled to (DO- functional) immunity ratione materiae before foreign national courts, as in the Pinochet case.  This issue was the subject of controversial dicta in the Arrest Warrant case; the Italy v. Germany Judgment is very explicit that it does not address this question (¶ 91).

A few aspects of the Court’s reasoning might bear on the question of individual immunityratione materiae, however.

First, the Court is clear that immunity is not a matter of mere comity but instead is a principle of international law that reflects the sovereign equality of states (¶¶ 53-57). If individual immunity is a function of state immunity, this makes it more difficult to argue that such immunity is a matter of comity, not law.

Second, the court characterizes immunity as “essentially procedural in nature” and as “entirely distinct from the substantive law which determines whether that conduct is lawful or unlawful (¶ ¶ 58, 93). Some have argued that individual immunity is an aspect of substantive law, a conclusion that is arguably in tension with the Court’s reasoning here.

Third, the Court relies very heavily on the judgments of national courts, (¶¶ 73-76, 85, 96) concluding in effect that Italian national courts were virtually alone in denying immunity to German for the reasons that they did (¶¶ 77, 96). This may bode well for claims that individuals are not entitled to functional immunity for international crimes, as the practice is at least somewhat more mixed.  (DO- Pinochet and ATS cases)  On the other hand, the Court notes in one context that national courts gave the state immunity question “careful consideration;” some national court decisions that are referred to show the erosion of immunity for individuals do not explicitly consider immunity at all. As well, the Judgment leaves open entirely the question of how much state practice/how many national court decision it would take to show that international law recognizes an exception to immunity.