Corporations and the Alien Tort Statute

Fascinating developments concerning litigation in the United States under the Alien Tort Statute were described at the International Humanitarian Law Dialogs by Prof. David Scheffer, former United States ambassador at large for war crimes issues. David is now a professor at Northwestern University in Chicago.

The Alien Tort Statute is an ancient piece of legislation that gives American courts jurisdiction over violations of the laws of nations committed abroad. It sat dormant for almost 200 years, then was revived in the 1980s by creative human rights lawyers who successfully argued that it could be used to address human rights violations.

The United States Supreme Court is expected to rule in the coming weeks on an application for leave to appeal (known in the United States as an application for writ of certiorari) with respect to a suit filed against a corporation. As David Scheffer explained, there have been several cases involving corporations, and there is a ‘circuit split’. Courts of appeal in the United States have reached very different conclusions about legal issues. When there is such divergence, this opens the door to the Supreme Court.

There are two main issues.

The first is whether corporations can be sued at all under the Statute. With rather withering irony, David described how the conservatives on the United States Supreme Court recently upheld the freedom of expression rights of corporations in striking down electoral financing legislation (the Citizens United case). Yet conservative judges in the United States have also given corporations immunity from the Alien Tort Statute. Here they cite international law in support, noting that corporations cannot be prosecuted at the International Criminal Court. David recalled how the same judges regularly refuse to consider international law when it is being invoked in order to strengthen human rights and constitutional guarantees.

The second issue concerns aiding and abetting liability. Some judges have taken the view that aiding and abetting in violations of international human rights law requires both knowledge of the intentions of the actual perpetrator and an intent to commit the crime. Here, reliance is placed upon a rather perverse interpretation of article 25 of the Rome Statute. David, who was the US negotiator at the Rome Conference, knows better than anyone how to apply and interpret article 25. If the intent requirement is upheld, it makes suits against corporations immensely more difficult.

The idea that United States-based corporations can be held accountable in American courts for human rights violations that are related to their foreign activities – torture, child labour, modern forms of slavery, etc. – has huge implications. The debate before the Supreme Court is therefore more than a merely technical one about interpretation of an old piece of legislation.

Progress Report on the International Criminal Tribunals

Every year in late August, prosecutors from the various international criminal tribunals meet in Chautuaqua, New York, for the International Humanitarian Law Dialogs. These are organized by the Robert H. Jackson Center, which is located in nearby Jamestown, with many other co-sponsors, and take place under the leadership of Prof. David Crane (formerly, prosecutor of the Special Court for Sierra Leone) and Greg Peterson, who directs the Jackson Center. Yesterday’s session had a fabulous briefing on the state of play at the different tribunals, and I thought readers of the blog would appreciate it if I shared my notes of the session.

Serge Brammertz, who is Prosecutor of the International Criminal Tribunal for the former Yugoslavia, was delayed in New York because of travel disruptions related to the hurricane. I expect we’ll get a report from him today.

International Criminal Court. Deputy Prosecutor Fatou Bensouda reported on the ongoing trials, noting that the final arguments in the Lubanga case were made only a few days ago. Ben Ferencz, who prosecuted the Einsatzgruppen case at Nuremberg, made the closing submission for the Prosecutor. Apparently the transcript of the session is already available on the Court’s website.

She reported on the ongoing investigations, noting that there are three additional cases currently being prepared with respect to the Democratic Republic of the Congo (DRC 3, DRC 4 and DRC 5), and that there is also a Darfur 4 case being prepared. She said that investigations are also continuing in the Kenya situation. I note that she said nothing of anything further with respect to Uganda. On various occasions, the Office of the Prosecutor has suggested that their would be cases dealing with the flip side in the Uganda situation – that is, the atrocities perpetrated by the government forces – but that idea seems to have been dropped.

She briefly listed the other situations where some sort of assessment or investigation is underway: Palestine, Korea, Nigeria, Honduras, Afghanistan, Colombia, Guinea and Georgia. The Palestine situation is one about which there has been particular interest. Probably the Office of the Prosecutor is awaiting the results of the General Assembly debate on Palestinian statehood, likely to take place in the coming weeks.

International Criminal Tribunal for the former Yugoslavia. Serge Brammertz, Prosecutor of the International Criminal Tribunal for the former Yugoslavia, spoke of the importance of the recent arrests of Mladic and Hadzic. With that, the Tribunal has ticked off all the boxes on its most wanted list. Now it has to finish the trials and the appeals. Serge said that there was enough work for four to five years. He spoke of the importance of the Residual Mechanism. The real challenge for the future, he said, was to ensure that national trials continue in the region of the former Yugoslavia.

International Criminal Tribunal for Rwanda. Late last year, James Arguin took on the position of chief of appeals at the Rwanda Tribunal. He said that judgment in ten cases now underway should be delivered by the end of 2011, but that there would probably be some ‘spillover’. He said the current plan is to complete the appeals process by 2013, with final judgments in the appeals delivered in 2014. That will, effectively, shut down the tribunal.

There are nine fugitives who have been indicted but not apprehended. Jim said that they are now beginning the process of preparing evidence for eventual trials of these people. This involves taking depositions from witnesses. He said ‘some of the kinks are being worked out’ in the process and that it is ‘going very well’. He also spoke of the recent referral decision, in which a Chamber agreed to send a case back to Rwanda for trial. This is now on appeal, with a decision expected from the Appeals Chamber in October.

He spent a few minutes speaking about employment opportunities at the Tribunal. Because the activities are winding down, many of the current staff are leaving as they find more permanent jobs. But that opens up a number of vacancies. Young graduates, and also many more seasoned professionals, often ask me how to break into the system. It seems to me there is a great opportunity to do this now, given the staffing difficulties that the Rwanda Tribunal – and the others, too – are likely to encounter as they complete their work. Of course, the job won’t last that long, but it will provide a great chance to get one’s foot in the door.

Special Court for Sierra Leone. Jim Johnson, who is chief of prosecutions with the Special Court, said that judgment in the Charles Taylor case is expected in the ‘near future’. He said the Trial Chamber will probably announce the date of the judgment very soon. There will be an appeal, of course, but the final ruling ought to be issued by April 2012.

Jim explained that the ‘Residual Special Court’ will take over, pursuant to an agreement between the UN and the Government of Sierra Leone that is still awaiting ratification by the latter. It will be located in The Hague, with a small operation in Freetown. The Residual Special Court will be funded by voluntary contributions, which may not be a simple matter, given that it will last for many, many years.

He also spoke of the ongoing contempt prosecutions.

Extraordinary Chambers of the Courts of Cambodia. The international prosecutor, Andrew Cayley, spoke of the appeal of the decision in the first prosecution, where the Prosecutor is seeking a life sentence. Last year, Duch was sentenced to 35 years, minus 5 years because of irregular pre-trial detention, and then many years to take into account his lengthy pre-trial detention.

The second trial, now being prepared, involves four senior leaders of the Khmer Rouge. Only yesterday, it became clear that proceedings against one of them, Ying Tarit, are likely to be stayed because she is unfit to stand trial as a result of Altzheimer’s disease.

Two other trials, 3 and 4, are being planned. Andrew had little to say about them, aside from a rather ominous comment: ‘I have learned to cherish my own legal system’. The implication was that political factors within Cambodia are preventing any progress on these two trials.

Special Tribunal for Lebanon. Daryl Mundis represented the Prosecutor of the Special Tribunal for Lebanon. He reported on the indictment of the four Hezbollah members. He explained how two of them are being charged for organizing a bogus story attempting to pin the blame on a fictional terrorist group. I was intrigued by this, because covering up a crime might be considered a kind of ‘complicity after the fact’. While punishable in a general sense, it is not obvious that this falls within the jurisdiction of the Tribunal.

Daryl described the current proceedings, which involve a declaration by Lebanon that it is unable to arrest the suspects, and then a public announcement informing the accused of the charges and inviting them to appear. These steps are preparatory to an in absentia trial. The Prosecutor is proceeding on this basis, and an application to hold such a trial is to be expected soon. Defence teams will be appointed, so the trial itself may be quite long, with evidence called on both sides.

The Prosecutor is investigating related terrorist attacks that took place in late 2004 and 2005. These need to be linked with the February 2005 bombing. A recent ruling suggests that the Prosecutor can satisfy the Tribunal of such a connection. The idea would be to prepare charges in these related cases, and then link them to the main trial.

Human Rights Council Resolution on Syria

Yesterday, the Human Rights Council voted  to establish a commission of inquiry into human rights violations in Syria. Here is the press release issued by the Office of the High Commissioner for Human Rights:

The Human Rights Council concluded its seventeenth Special Session, which was convened yesterday and was devoted to “the situation of human rights in the Syrian Arab Republic”. The Council adopted a resolution that requires an independent international commission of inquiry to be dispatched to the country to investigate all allegations of violations of international human rights law committed by the Syrian Arab Republic since March 2011, to establish the facts and circumstances of these crimes and violations, and if possible to identify those responsible and ensure that perpetrators are held accountable for their actions.In the resolution, the Council expressed deep concern at the findings of the fact-finding mission established by the Office of the High Commissioner pursuant to resolution S-16/1, adopted in April after the last Special Session on Syria. These findings included violations of human rights that could constitute crimes against humanity. The Council strongly condemned the serious, systematic and continuing human rights violations by Syrian authorities, including arbitrary executions, excessive use of force and deadly violence against protesters and human rights defenders, enforced disappearances, arbitrary detention, and torture and ill-treatment of detainees, including children.At the opening of the Special Session yesterday afternoon, Navi Pillay, the High Commissioner for Human Rights, presented the report of the fact-finding mission established by the High Commissioner at the request of the Council to investigate allegations of violations of human rights in Syria, including systematic and widespread human rights violations by military and security forces. The Office of the High Commissioner believed that these actions, by their nature and scope, could constitute crimes against humanity. Juan Mendez, the Special Rapporteur on torture, in a video message delivered on behalf of all Special Procedures mandate holders, said that they feared the threshold of widespread and systematic violence had been reached.Speaking as a concerned country, Syria said that the government had responded accurately to information requests from the High Commissioner and expressed regret that these responses were not included in the report, which lacked credibility. The delegation said that nonetheless, Syria would allow the mission from the Office of the High Commissioner to visit the country as soon as the Syrian independent commission had completed its own investigation.

The vote was 33 in favour, with four against (China, Russia, Ecuador and Cuba), and nine abstentions. Arab member states in the Council voted in favour of the resolution (Jordan, Kuwait, Qatar and Saudi Arabia). For the speeches in the Council, click here.

Joseph Rikhof Successfully Defends Doctoral Thesis on Exclusion of Refugees

From left, myself, Joe Rikhof, Prof. Guy Goodwin-Gill and Dr. Shane Darcy

Joseph Rikhof yesterday defended his doctoral thesis entitled 'The Relationship between Refugee Exclusion Law and International Law: Convergence or Divergence?' at the Irish Centre for Human Rights. The thesis deals with the exclusion clauses in the 1951 Refugee Convention, and particularly emphasises the relationship with international criminal law. The research was supervised by Dr Shane Darcy, who is himself a graduate of our doctoral programme, a first for the Irish Centre for Human Rights. The examiners were Professor Guy Goodwin-Gill of All Souls College, University of Oxford, who is one of the pre-eminent academics in the field of refugee law, and myself. Joseph has worked in the area of immigration law and war crimes within the Canadian government for many years and has many important publications. I note with some pride that he is the fourth Canadian to complete a doctoral thesis at the Irish Centre for Human Rights this year.

Congratulations, Joe, on this achievement.

Syria Report of High Commissioner Documents Crimes Against Humanity

The Report of the Office of the High Commissioner for Human Rights on Syria was issued yesterday. In paragraph 72, it states: ‘The Mission found a pattern of human rights violations that  constitutes widespread or systematic attacks against the civilian population, which may amount to crimes against humanity as provided for in article 7  of  the Rome Statute of the International Criminal Court.’ The Report was made at the request of the Human Rights Council. It recommends that the Council:

‘Urge the Security Council to remain seized of, and address in the strongest  terms the killing of peaceful protestors and other civilians in Syria through  the use of excessive force and other grave human right violations; to call  for an immediate cessation of attacks against the civilian population; and to consider referring the situation in Syria to the International Criminal Court.’

The Report notes that Syria signed the Rome Statute, although it has not ratified the instrument.

Prosecutor Seeks to Hold Trials of Mladic

The Prosecutor of the International Criminal Tribunal for the former Yugoslavia has applied to hold two separate trials on Ratko Mladic, based upon the two distinct indictments. Mladic and Karadzic were initially charged in 1995 with responsibility for a range of offences committed during the war in Bosnia and Herzegovina. They were subsequently charged in a separate indictment for the Srebrenica massacre of July 1995. According to a newspaper account, the Prosecutor hopes to proceed with the Srebrenica count alone and obtain a conviction our of concern that Mladic may die during a lengthy trial.
Dov Jacobs has made some very thoughtful analysis of this on his blog.
I have always felt that the narrative that has emerged from the Yugoslavia Tribunal about genocide charges suffered from a degree of incoherence. In effect, the judges have held that the conflict was not, in a general sense, 'genocidal'. This was confirmed in the judgment of the International Court of Justice in the case of Bosnia v. Serbia. But with respect to the Srebrenica massacre, there have been convictions for genocide, and Mladic himself has been blamed for the crime in some of the rulings although he has yet to be tried or convicted. I was always troubled by the idea that this was a war that was not genocidal in nature but in which there was a brief genocidal episode. It would have been better either to conclude that the war was genocidal in a general sense, or rule that it was not and then extend the logic to Srebrenica too.
By severing the two indictments for the purpose of the trial, the Prosecutor is adding an interesting twist to this. In a sense, it confirms the view that the Srebrenica massacre was somewhat of an anomaly rather than an event that was emblematic of the conduct of one side in the war.

Ruling on Maternal Health Care by Committee on the Elimination of Discrimination Against Women

The United Nations Committee for the Elimination of Discrimination Against Women issued an important decision last week confirming the right of all women, regardless of income or racial background, to timely, non-discriminatory and appropriate maternal health services. The case was filed against Brazil on behalf of Alyne da Silva Pimentel in accordance with the Protocol to the Convention. Alyne da Silva Pimentel was a 28-year-old Afro-Brazilian woman who died in 2002 after being denied basic medical care to address complications in her pregnancy.

The litigation was undertaken by the Center for Reproductive Rights. For more information, click here.

Thanks to Janna Chan.

London Riots: Were they Crimes Against Humanity?

Readers of this blog will know that I am not an enthusiast for expansive approaches to crimes against humanity. I have written on several occasions criticising the very broad interpretation given to crimes against humanity by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia when it said that no plan or policy was required as an element of the crime. The concern was that without such an element, a range of acts committed by gangsters, motorcycle gangs, serial killers and the like would be encompassed within the definition. Proponents of a broad interpretation want to use it to include terrorists. And recently, I wrote about the attempts to label the recent terrorist killings by an insane individual as crimes against humanity.
Certainly, according to the definition adopted by judges at the International Criminal Tribunal for the former Yugoslavia, the recent riots in London would meet the terms of crimes against humanity.
At the International Criminal Court, things are slightly different. There, article 7(2)(a) of the Rome Statute requires that crimes against humanity be perpetrated as part of a 'state or organizational policy'. Academics such as Cherif Bassiouni have argued - correctly, to my mind - that the word 'organizational' must be read in its context. It is not a general invitation to include any form of organized criminal activity. Rather, the organization in question must be either part of the state or 'state-like', in the sense of association with an entity that behaves like a state, that controls territory, etc.  But fans of the broad approach argue that the term 'organizational' means that the Statute is not confined to acts perpetrated by a State or state-like entity. They want the Rome Statute to be as extensive as the case law of the Yugoslavia Tribunal.
The first serious interpretation of this provision by the International Criminal Court has arisen in the Kenya situation. It deals with post-electoral violence. In the initial decision authorising the investigation, Judge Hans-Peter Kaul wrote a very compelling dissenting opinion in which he insisted that such acts did not belong within the scope of crimes against humanity. He referred to the historical origins of the term crimes against humanity, and the need for the term to be focussed on the state.
But Judge Kaul was overruled by the majority, which leaned towards the more expansive view. At the extreme, this takes crimes against humanity to mean all organized acts that are not random. Ultimately, the gangs and serial killers fall within the net.
And that would mean that those involved in the London riots are also perpetrators of crimes against humanity. There may be some distinctions between the post-electoral violence in Kenya and the London riots, but they are nuances, matters of degree. One cannot draw a bright line between them.
It will be argued that in any event the British justice system is dealing very aggressively with the London violence, and that as a result the crimes would not be subject to prosecution on the basis of complementarity. The British justice system is 'willing and able' to bring those responsible to justice.
But here we encounter another problem with the way the Rome Statute is being applied. The judges at the International Criminal Court have tended to an analysis whereby it is not adequate that perpetrators be tried for any crime in order for complementarity to be addressed. The theory is that they must be tried for the precise crimes under the Rome Statute. Otherwise, the terms of the Statute are not respected and the case is admissible. In the first case, Lubanga, the accused was being prosecuted for serious crimes in the Congo, but he was not being prosecuted for recruiting child soldiers. As a result, the Court said the case was admissible.
Are any of the teenage hoodlums in London being prosecuted for crimes against humanity? Is Britain failing in its duty to adequately describe the nature of the crimes - and thereby deprive victims of the justice they are entitled to - by labeling the acts using ordinary criminal classifications, such as assault, mischief, theft, arson, vandalism and so on?
And what about the gravity threshold? Again, the analysis of the Prosecutor is so nebulous as to make it a flexible tool capable of describing virtually anything as sufficiently serious (or not). No doubt he will answer that the London riots are nut sufficiently serious to meet the gravity threshold.
This would make a good exam question. 'Explain why, in light of the case law of the International Criminal Court, the teenage (over 18) perpetrators involved in the August 2011 riots in London, should not be charged by the Court for crimes against humanity.'
Of course we all know that riots in Nairobi and riots in London are not the same thing. Should anyone be surprised that so many Africans think the Court is focusing its attention unfairly on their continent.

How the Americans Murdered Bin Laden

The current issue of the New Yorker contains an article explaining how Osama Bin Laden was murdered. Here is the heart of the account:

The Americans hurried toward the bedroom door. The first SEAL pushed it open. Two of bin Laden’s wives had placed themselves in front of him. Amal al-Fatah, bin Laden’s fifth wife, was screaming in Arabic. She motioned as if she were going to charge; the SEAL lowered his sights and shot her once, in the calf. Fearing that one or both women were wearing suicide jackets, he stepped forward, wrapped them in a bear hug, and drove them aside. He would almost certainly have been killed had they blown themselves up, but by blanketing them he would have absorbed some of the blast and potentially saved the two SEALs behind him. In the end, neither woman was wearing an explosive vest.
A second SEAL stepped into the room and trained the infrared laser of his M4 on bin Laden’s chest. The Al Qaeda chief, who was wearing a tan shalwar kameez and a prayer cap on his head, froze; he was unarmed. “There was never any question of detaining or capturing him—it wasn’t a split-second decision. No one wanted detainees,” the special-operations officer told me. (The Administration maintains that had bin Laden immediately surrendered he could have been taken alive.) Nine years, seven months, and twenty days after September 11th, an American was a trigger pull from ending bin Laden’s life. The first round, a 5.56-mm. bullet, struck bin Laden in the chest. As he fell backward, the SEAL fired a second round into his head, just above his left eye. On his radio, he reported, “For God and country—Geronimo, Geronimo, Geronimo.” After a pause, he added, “Geronimo E.K.I.A.”—“enemy killed in action.”

Read the full account here. International human rights law, American law, the American constitution, and Pakistani law all required that he be arrested and brought to justice. Nuremberg's great achievement was to move humanity beyond this barbarism. 

African Union and the International Criminal Court

James Nyawo has published a fine article on the African Union and its attitude to the International Criminal Court on Juris.

New General Comment on Freedom of Expression Deals with Denial Laws

The long-awaited General Comment 34 of the Human Rights Committee on freedom of expression was adopted at its recent session. It replaces the very laconic General Comment 10, which was adopted back in 1983, and consisted of four paragraphs.
There is much of interest in the new Comment, reported drafted by the Irish member, Michael O'Flaherty. there is a short explanation of it by Michael on YouTube.
It deals rather briefly with legislation that has been adopted in many countries dealing with denial of historical events like the Holocaust and the Armenian genocide. Paragraph 49 of the General Comments says: 'Laws that penalise the expression of opinions about historical facts (fn 166) are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression.' Footnote 116 says 'So called “memory-laws”, see Faurisson v. France, No. 550/93.'.
Faurisson v. France is the case examined by the Committee in 1996 in which it upheld the conviction of a French pseudo-historian who was convicted of an offence of denying the Holocaust.
Does this mean the views of the Committee have shifted, and that the opinion it earlier expressed that seemed to accept the validity of such legislation has been reversed?
The General Comment also considers blasphemy legislation. At paragraph 48, it says: 'Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant.' Article 20(2) of the Covenant states: 'Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.' This means that one can show disrespect for a religion or other belief system' as long as it does not constitute incitement to discrimination or hostility. It looks like a hard line to draw in practice.