The Italian Constitutional Court’s Challenge to the Implementation of the ICJ’s Germany v Italy Judgment

by Dr Filippo Fontanelli

International Court of Justice

The International Court of Justice

With the decision no. 238 of 22 October 2014, the Italian Constitutional Court (the CC) produced the most spectacular display of dualism this side of Medellin. The CC declared the unconstitutionality of Italy’s compliance with the International Court of Justice (ICJ)’s judgment Germany v. Italy (Greece intervening). The CC’s ruling – briefly reported – invites speculation on two fronts: 1) What does it say about the application of international law in domestic courts? 2) Is the judgment reasonable by any relevant standards other than Italian constitutional law?

On the practical matters of the follow-up scenario before Italian ordinary courts, I take the liberty to refer to my discussion here (spoiler: Germany will not pay anyway).

In February 2012, the ICJ found that Italy breached its international obligations vis-à-vis Germany. Italian courts had exercised jurisdiction in tort proceedings against Germany, instituted by Italian plaintiffs for World War II war crimes of the Nazi occupation forces in Italy. These proceedings, resulting in Germany being ordered to compensate the victims, constituted internationally wrongful acts, since they disregarded the international custom whereby sovereign states are immune from civil suit in foreign courts, for acts jure imperii. The ICJ reached the same conclusion with respect to the ensuing enforcement proceedings and the exequatur granted by Italian judges to authorise execution of Greek judgments in similar disputes. Continue reading

ICC Releases Suspects to Avoid Unreasonably Lengthy Pre-Trial Detention

by Léa Kulinowski

Aimé Kilolo, Jean-Jacques Mangenda and Jean-Pierre Bemba

Aimé Kilolo, Jean-Jacques Mangenda and Jean-Pierre Bemba

On 21 October 2014, Pre-Trial Chamber II of the International Criminal Court ordered the immediate release of four out of the five suspects in the case of Prosecutor v. Bemba, Kilolo, Mangenda, Babala and Arido. Mr. Bemba, who has been held in detention since July 2008 as a result of charges of war crimes and crimes against humanity, remains detained.

The suspects are charged with offences against the administration of justice under Article 70 of the Statute – the first of its kind before the ICC – including giving false testimony, knowingly presenting false/forged evidence and corruptly influencing witnesses. The penalty for these offences goes from a fine to a maximum of five years of imprisonment.

When granting the interim release, the Single Judge emphasised the protection against unreasonable detention as per Article 60 (4) of the Statute and noted the advanced stage of the proceedings as well as the various delays, holding that “the reasonableness of the duration of the detention has to be balanced inter alia against the statutory penalties applicable to the offences at stake in these proceedings and that, accordingly, the further extension of the period of the pre-trial detention would result in making its duration disproportionate”. Even though the duration of the suspects’ detention was not due to the Prosecutor’s inexcusable delay, the Single Judge found that the Pre-Trial Chamber was under an independent obligation to ensure that that a person is not unreasonably detained prior to trial under Article 60 (4) of the Statute. Continue reading

Rights-Compliant Investment Needed to Keep SEZs Fair for All

by Vani Sathisan*

resident-thanlyin-township

A resident of Thanlyin township sits inside her home after officials posted an eviction notice in February 2013.

The village elder from Mutu, a small village near Dawei, in southern Myanmar, held out the 30 complaint letters residents had sent to Tanintharyi Region Chief Minister U Myat Ko.

The letters sought to highlight alleged human rights violations related to the development of the Dawei Special Economic Zone (SEZ) and requested that adequate compensation be paid to those affected.

In Mutu and neighbouring villages, farmers and fishermen lamented the displacement of communities, loss of livelihoods and culture, and forced relocations due to the development of the Dawei SEZ and related infrastructure. Some told us they were being charged with trespassing on government land because they had refused to leave their homes after their land had been confiscated.

While the Dawei SEZ has been stalled for some time, Thai Prime Minister Prayut Chan-o-cha will visit Myanmar – his first official overseas trip – and is expected to hold talks aimed at reviving the project.

But the complaints emanating from Dawei are not isolated incidents. Amid the euphoria of the investment gold rush, Myanmar faces an epidemic of land disputes exacerbated by the development of SEZs. Continue reading

A (New) New Regional International Criminal Court For Africa?

by Max du Plessis

Advocate of the High Court, Durban and Sandton; Associate Tenant, Doughty Street Chambers, London; Associate Professor, University of KwaZulu-Natal

and

Nicole Fritz

Executive Director, Southern Africa Litigation Centre

I.       INTRODUCTION

Malabo Summit 2014

African Heads of State at the Malabo Summit last June

On June 2014, African Heads of State and Governments meeting in Malabo, Equatorial Guinea, adopted a Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the ACJHPR Amendment). The ACJHPR Amendment revises the (not yet in force) Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR Protocol) – which was adopted in 2008 to merge the African Court on Human and Peoples’ Rights with the proposed African Court of Justice. The aim of the 2014 ACJHPR Amendment is to grant the resultant Court ‘International Criminal Law’ jurisdiction, adding to the ‘Human Rights’ jurisdiction it presently exercises and the ‘General International Law’ jurisdiction it is expected to exercise when the 2008 ACJHR Protocol comes into effect (whenever that may be). To make matters worse (or better), the ACJHPR Amendment also introduces a change in nomenclature: the new amended, revised African Court will be called the ‘African Court of Justice and Human and Peoples Rights’ (the ACJHPR) (article 8, ACJHPR Amendment).

To give effect to its aims, the 2014 ACJHPR Amendment contains a number of revisions to both the 2008 ACJHR Protocol and the Statute of the Court attached thereto. However, if matters were not already confusing and time-warped, the 2014 ACJHPR Amendment is itself a revised version of an earlier draft, approved by African Ministers of Justice and Attorney General and recommended to the AU Assembly in May 2012 (the ‘2012 Draft Amendment’). The 2012 Draft Amendment was the subject of considerable criticism, including a Comment in this journal by the author (du Plessis, ‘A new regional International Criminal Court for Africa?’, 2 SACJ (2012) 286). In short, general concerns were raised regarding the rushed drafting process and the lack of consultation, and specific concerns were raised as to difficulties surrounding jurisdiction, the definition of crimes, immunities, institutional design and the practicality of administration and enforcement of an expanded jurisdiction, amongst others. Continue reading

The Future of International Criminal Justice is Domestic

by Max du Plessis*

INTRODUCTION

International Criminal Court

The International Criminal Court

Complementarity is certainly posited as a driving feature of the ICC regime. The ICC is expected to act in what is described as a ‘complementary’ relationship with domestic states that are party to the Rome Statute. The Preamble to the Rome Statute says that the ICC’s jurisdiction will be complementary to that of national jurisdictions, and article 17 of the Statute embodies the complementarity principle. At the heart of this principle is the ability to prosecute international criminals in one’s national courts, on behalf of the international community, or to have in place mechanisms to arrest and surrender to the ICC persons that the court seeks to prosecute and who happen to be in one’s jurisdiction.

Linked to the principle of complementarity is the practice of universal jurisdiction.  The ICC does not exercise universal jurisdiction.  But states do, and it is here that the real potential lies for states to act as impunity gap fillers – acting where the ICC is unable or unwilling to do so.

Various developments in Africa suggest a broader understanding of complementarity that is unfolding in practice and which is worthy of further exploration. This broader understanding in certain respects falls within the notion of ‘positive complementarity’, or perhaps better phrased, ‘proactive complementarity’ – a term meaning that the ICC and states should actively encourage genuine national proceedings where possible, and that national and international networks should be relied upon as part of a system of international cooperation. Continue reading

A Wrong Turn for Human Rights

by David Tolbert*

A Palestinian woman reacts upon seeing her destroyed house in Beit Hanoun town

Gaza, August 2014

The world has plunged into a period of brutality, with impunity for the perpetrators of violence. Syria is suffering untold civilian casualties as a divided United Nations Security Council sits on the sidelines. Gaza was pummeled to dust yet again with the world watching on. Iraq is in flames, with no end in sight. Atrocities are mounting in South Sudan and the Central African Republic, which are also being swept by an epidemic of sexual violence. Even Europe is not immune: a civilian aircraft was shot down over a conflict zone in eastern Ukraine, and officials were prevented from investigating.

Twenty-five years after the fall of the Berlin Wall, and more than a decade after the establishment of the International Criminal Court (ICC), shockingly little is being done to stop these abuses, and the prospects of the victims ever getting justice, let alone bringing the perpetrators to account, seem ever more remote.

For many years, the world seemed to be progressing toward greater recognition of human rights and demands for justice. As democracies emerged in Latin America and Central and Eastern Europe in the 1980s and 1990s, these issues assumed increasing importance. Although wars, conflicts, and atrocities continued, the global powers tried, and occasionally managed – albeit chaotically and usually late – to stop the killing. Continue reading

Corporate Criminal Liability for International Crimes & the Alien Tort Statute

James G. Stewart, an assistant professor of law at the University of British Columbia and a former war crimes prosecutor, has published an article entitled “The turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute” in the New York University Journal of International Law and Politics. The full article is available here.

Protesters Seeking to Hold Royal Dutch Shell Liable for Human Rights Abuses ©Minn. J. Int’l L.

Protesters Seeking to Hold Royal Dutch Shell Liable for Human Rights Abuses ©Minn. J. Int’l L.

Abstract: In November 2013, Swiss authorities announced a criminal investigation into one of the world’s largest gold refineries, on the basis that the company committed a war crime. The Swiss investigation comes a matter of months after the US Supreme Court decided in Kiobel that allegations such as these could not give rise to civil liability under the aegis of the Alien Tort Statute (“ATS”). Intriguingly, however, the Swiss case is founded on a much earlier American precedent. In 1909, the U.S. Supreme Court approved the novel practice of prosecuting companies. Unlike the Court’s position in Kiobel a century later, the arguments that ultimately led to the open-armed embrace of corporate criminal liability were unambiguously concerned with impunity. For the U.S. Supreme Court, doing without corporate criminal responsibility would create a significant and highly undesirable regulatory gap. After that, the American fiction that corporations are people for the purposes of criminal law took hold, such that the concept is now relatively ubiquitous globally. Even jurisdictions that bravely held out for decades on philosophical grounds have recently adopted corporate criminal liability. Switzerland is one such case. Continue reading

The Day AU Leaders Justified the Existence of the ICC!

by Arnold Tsunga and Wayne Jordash QC

African leaders

African Union Summit, July 2014

There is a general notion that the law is like a spider’s web. It only catches the weak.

The decision adopted by the AU heads in Malabo, Equatorial Guinea, to grant immunity from prosecution for serious human rights violations to heads of state and senior government officials at the African Court of Justice and Human and Peoples Rights only serves to reinforce this perception.

Heads who faced justice

Few African heads of state have been tried for serious human rights violations of their own people. Those that come to mind are Charles Taylor (Liberia) and Hosni Mubarak (Egypt). Charles Taylor was tried by a hybrid tribunal set up under the auspices of the UN in Sierra Leone (sitting in The Hague, a city that has become the seat of international justice). After being overthrown in a revolution, Mubarak was tried by domestic courts in what some view as flawed victor’s justice. The AU was not involved in either of these proceedings.

Others await or are going through trial. These are Laurent Gbagbo (Cote D’Ivoire), Omar Hassan Ahmad Al-Bashir (Sudan), Uhuru Kenyatta and his deputy, William Ruto (Kenya) at the ICC, and Hissène Habré (Chad) at an AU sponsored tribunal in Senegal. The Hissène Habré case has been awaiting trial since shortly after the millennium. Legitimate concerns have been raised about the willingness of the AU leaders to see Hissène Habré face justice and the completion of the trial. Omar Hassan Ahmad Al-Bashir has been largely protected by the AU heads that have refused to cooperate with the ICC to effect his warrant of arrest. Continue reading

Immunity under Pressure: The Case of Hugo Carvajal

by Philippa Webb

Hugo Carvajal

Hugo Carvajal © Reuters

A recent legal flurry on the island of Aruba (population: 100,000) has raised interesting questions about the nature and scope of diplomatic/consular immunity.

Hugo Carvajal, the former chief of Venezuelan military intelligence and retired General whose nickname is ‘el Pollo’ (the Chicken), was detained in Aruba on 23 July. He had been admitted to the island on a diplomatic passport and had been named Consul-General to Aruba by Venezuela earlier in the year.

According to news reports, he was detained at Aruba’s international airport pursuant to a request from the United States. He is accused of conspiring with Colombian drug traffickers to export cocaine to the US. In 2008, the US Treasury Department put him on a blacklist, alleging he had protected drug shipments from FARC and provided them with weapons and logistical assistance.

Venezuela’s Ministry for Foreign Affairs rejected the ‘illegal and arbitrary detention of [a] Venezuelan diplomat’ and invoked the 1961 Vienna Convention on Diplomatic Relations. A local judge in Aruba, however, rejected the claim of diplomatic immunity on 25 July. The judge pointed out that Carvajal’s nomination of Consul General had not yet been accepted by the Dutch authorities, which was required since Aruba is part of the Kingdom of The Netherlands. The judge ordered Carvajal to be held pending extradition proceedings. Continue reading

The Net is Closing in on Guatemalan Criminals

by Sander Wirken

Former Guatemalan national police chief Sperisen sentenced to life in Switzerland

Erwin Sperisen

Erwin Sperisen

An accused standing trial for the murder of ten people is not a common occurrence in Swiss criminal courts. Erwin Sperisen, a former Guatemalan police chief (2004-2007) and dual Guatemalan-Swiss national, stood trial for just that this year. On 6 June 2014, he was sentenced to life imprisonment for the extrajudicial execution of seven prisoners in a campaign of ‘social cleansing’ directed by the national police leadership. The ruling marks an important victory for justice and signals that fleeing to another country is no longer a guarantee of impunity for Guatemalan criminals.

During the Oscar Berger government (2004-2008), a parallel structure emerged in Guatemala within the Ministry of the Interior and the National Civilian Police, led by the police top leadership and the Minister of the Interior. Amongst other activities, the structure dedicated itself to ‘social cleansing’, i.e., ridding Guatemalan society of what those involved in that process regarded as ‘undesired elements’.

The charges against Sperisen revolved around two incidents. First there was the case of three inmates that had escaped from the El Infiernito prison in October 2005. The escapees allegedly resisted their arrest and died in an armed confrontation with police officers. The bullet impacts, witness testimonies and other evidence were inconsistent with that scenario however and pointed rather at the escapees having been executed, after which the crime scene had been altered to resemble an armed confrontation. The Swiss court was convinced that the three escapees had indeed been extra-judicially executed. However, the court was not convinced beyond any reasonable doubt of Sperisen’s personal involvement in the killings, as Sperisen had not been present at the scene of the crime and no clear evidence linking him to the material authors of the executions was provided. Continue reading