Friday, November 13, 2009
The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia cut four years off the 33-year sentence imposed on a former Bosnian Serb army general who commanded much of the siege of Sarajevo.
Dragomir Milosevic (who is not related to the former Serbian leader Slobodan Milosevic) was convicted in 2007 by the International Criminal Tribunal for the former Yugoslavia. He was found guilty on five counts of murder, inflicting terror and committing inhumane acts during a campaign of sniping and shelling, which resulted in the injury and death of a large number of civilians in the Bosnian capital during the second half of the 1992-1995 siege.
The Appeals Chamber ruled that, “whereas the evidence cited in the Trial Judgement does not support a finding that Milosevic planned and ordered the sniping incidents, his command responsibility for having failed to prevent and punish the said crimes committed by his subordinates has been established beyond reasonable doubt.”
The Chamber upheld the majority of the Trial Chamber’s convictions for ordering the shelling of the civilian population in Sarajevo during the 15-month period, while also granting his appeal in part and reducing his sentence from 33 to 29 years’ imprisonment.
The Prosecution’s request that Mr. Milosevic, who is in his late sixties, be sentenced to life imprisonment was dismissed in its entirety.
Radovan Karadzic boycotted the first three days of his trial at the International Criminal Tribunal for the Former Yugoslavia. He claimed that he needed extra time to prepare his defense of the 11 war crimes charges against him. Karadzic is representing himself at trial, and the request for additional time (he asked for 11 months) has been seen simply as a delaying tactic. Last week the ICTY trial judges appointed legal counsel to represent Karadzic. He has now appealed that order to the Appellate Chamber of the ICTY.
Thursday, November 12, 2009
Nigeria recently became a party to the Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. Here's an update on the status of ratifications of the U.N. Convention on the Law of the Sea and its related agreements.
- There are 159 parties to the 1982 U.N. Convention on the Law of the Sea. The most recent countries to join as parties were Switzerland (May 1, 2009) and the Dominican Republic (July 10, 2009).
- There are 137 parties to the Agreement Relating to the Implementation of Part XI of UNCLOS. The most recent countries to join as parties were Switzerland (May 1, 2009) and the Dominican Republic (July 10, 2009).
- There are 77 countries to the Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. The most recent countries to join as parties are Tuvalu (February 2, 2009), Indonesia (September 28, 2009), and Nigeria (November 2, 2009).
Wednesday, November 11, 2009
The New York Times reported yesterday that top Blackwater officials approved payment of approximately $1 million in bribes to Iraqi officials to silence their criticism after Blackwater security guards were accused of fatally shooting 17 Iraqis in 2007. If the allegations are proven, the payments are likely to violate the Foreign Corrupt Practices Act (FCPA), which prohibits corruptly making payments or giving anything of value to foreign officials for the purpose of influencing an act of that foreign official. Blackwater allegedly feared that the Iraqis would refuse to renew Blackwater's operating license in Iraq and force Blackwater to leave the country, jeopardizing its contracts with the U.S. government that were worth hundreds of millions of dollars. A grand jury in North Carolina, where Blackwater's headquarters are located, is investigating. According to Transparency International, a nonprofit organization that tracks corruption worldwide, Iraq was one of top three most corrupt countries in the world in 2008.
Tuesday, November 10, 2009
Yesterday, the U.S. Supreme Court heard oral arguments in a consolidated case regarding whether it is cruel and unusual punishment within the meaning of the Eighth Amendment to the U.S. Constitution to sentence a juvenile to life in prison without the possibility of parole. The two cases are Graham v. Florida, No. 08-7412, in which Terrance Graham was sentenced to life for armed burglary at age 16 and a probation violation at age 17, and Sullivan v. Florida, No. 08-7621, in which a 13-year-old was sentenced to life in prison for the rape of an elderly woman.
As many readers of this blog will recall, the U.S. Supreme Court has frequently turned to international and foreign law to inform its Eighth Amendment jurisprudence. The Court's use of foreign and international law in this area can be traced to Trop v. Dulles (1958), where the Supreme Court said that it must look to “evolving standards of decency” in assessing whether a particular punishment is cruel and unusual within the meaning of the Eighth Amendment. In the most recent case involving cruel and unusual punishment for juveniles, Roper v. Simmons (2005), the U.S. Supreme Court held that imposition of the death penalty on juveniles violates the Eighth Amendment because offenders under 18 are less responsible for their crimes than adults, partly because they are less mature and more vulnerable to peer pressure. In coming to that conclusion, Justice Kennedy, writing for the majority, referred to the fact that the U.S. is the only country in the world that officially sanctions the death penalty for juveniles. In support of the international law ban on the death penalty for juveniles, Justice Kennedy cited to U.N. Convention on Rights of the Child (CRC), the International Covenent for Civil and Political Rights (ICCPR), the American Convention on Human Rights, and the African Charter on Rights and Welfare of the Child. Justice O'Conner dissented in Roper, but allowed for the proper use of international and foreign law: “This inquiry reflects the special character of the Eighth Amendment, which, as the Court has long held, draws its meaning directly from the values of a maturing society.” While American law is “distinctive,” “this Nation’s evolving understanding of human dignity is neither wholly isolated from nor inherently at odds with, the values prevailing in other countries.” By contrast, Justice Scalia’s dissent argued that the meaning of the Eighth Amendment should not be determined by the views of five Members of the Court and “like-minded foreigners.” He accused the majority of not listening to the views of American citizens and instead allowing the views of the international community to take center stage. While admitting that the U.S. shares a common legal heritage with the
A sentence of life imprisonment without the possibility of parole for juveniles does appear to be condemned by the international community. In a 2005 joint report issued by Amnesty International and Human Rights Watch, these human rights organizations contended that the United States stands virtually alone in the world in allowing juveniles to be sentenced to life in prison without the possibilty of parole. By 2009, a group of human rights organizations wrote in a letter to the Committee on the Elimination of Racial Discrimination that "no other country in the world has imposed this sentence on juvenile." Such a practice is probihited under article 37 of the CRC, but the U.S. has yet to ratify that treaty. Article 14 of the ICCPR, to which the U.S. is a party, requires that the age of a youth be taken into account in criminal procedures. Questioning during yesterday's oral argument suggested that some of the justices may be more willing to require the age of the offender to be taken into account in sentencing rather than imposing an across-the-board ban on life sentences without parole for juveniles.
Whether the U.S. Supreme Court will consider international law and foreign law and practice in its decision is an open question. Both Chief Justice Roberts and Justice Alito have joined the Court since Roper v. Simmons and both expressed views during their confirmation hearings that were not particularly favorable to the use of foreign and international law in constitutional interpretation. Likewise, Justice Sotomayor is new to the Court and her views are somewhat unclear. She stated during her confirmation hearings that the justices should not rely on foreign law as precedent, but has stated elsewhere that justices should be open to good ideas that come from foreign sources, suggesting that she does see a role for foreign and international law in constitutional interpretation. (And Justice O'Conner, who was favorably disposed to the use of foreign and international law in this context, has since left the bench.)
Monday, November 9, 2009
The Prosecutor of the International Criminal Court (ICC) has announced that he will ask the tribunal to open an investigation into the deadly post-election violence in Kenya in December 2007 and January 2008.
Luis Moreno-Ocampo, speaking after a meeting this week in Nairobi with President Mwai Kibaki and Prime Minister Raila Odinga, said he would make a formal request to the ICC next month.
"There is a reasonable basis to believe that the attacks against Kenyan civilians during the post-election violence constitute crimes against humanity under the ICC''s jurisdiction," he said yesterday.
Article 7 of the Rome Statute, under which the ICC operates, defines a crime against humanity as "a widespread or systematic attack directed against the civilian population."
Mr. Moreno-Ocampo said Mr. Kibaki and Mr. Odinga, who agreed to serve in a power-sharing administration following the vio
lence, had promised to cooperate with any investigation.
The ICC also announced yesterday that it has assigned three judges to a pre-trial chamber to deal with the Kenyan issue.
Ethnic violence engulfed the East African country after disputed elections at the end of 2007 and, following an inquiry, former UN Secretary-General Kofi Annan submitted sealed materials about possible crimes to Mr. Moreno-Ocampo earlier this year.
Under the ICC''s complementarity principle, the tribunal only intervenes if there are no national proceedings against those responsible for the crimes.
Once Mr. Moreno-Ocampo makes a formal request to the ICC''s pre-trial chamber, the court can agree to allow a case to go ahead, reject it or ask for more information.
In a press release yesterday the prosecution said that "ICC proceedings should go hand in hand with complementary investigations and prosecutions at the national level as well as healing and reconciliation processes.
"These three tracks would complement each other. Kenyans could provide an historic example for the world in how to address and prevent massive crimes."
The ICC is an independent, permanent court that investigates and prosecutes persons accused of genocide, crimes against humanity and war crimes. It is based in The Hague in the Netherlands.
Today marks the 20th anniversary of the fall of the Berlin Wall.
For my faculty colleagues teaching international law, this is also a reminder that we'll have to soon start telling our students that there was such a thing as the Berlin Wall, and that Germany was once divided into the Federal Republic of Germany (West Germany) and the German Democratic Republic (East Germany). I remember teaching a class recently where none of the students knew who Nelson Mandela was . . . .