International Human Rights Law Update
Volume 2, No. 2 -- Fall 1995
Katherine C. Hall, Editor

I. U.S. Court Cases: Human Rights

Kadic v. Karadzic, Nos. 94-9069, 1544; 94-9035, 1541, 1995 WL 604585 (2d Cir. Oct. 13, 1995). The Court of Appeals reversed the district court's dismissal of the complaints for lack of subject matter jurisdiction. The plaintiffs, alleging that they were victims of torture, summary execution, rape, forced prostitution and forced impregnation carried out by Bosnian-Serb military forces, brought a civil suit against Karadzic, president of the self-proclaimed Bosnian-Serb Republic. The Court of Appeals held that federal subject matter jurisdiction exists under both the Alien Tort Claims Act ("ATC Act") and the Torture Victim Protection Act ("TVP Act"). The court found that genocide, war crimes, torture, and summary execution, violate the law of nations whether undertaken by those acting under the auspices of a state or as private individuals. Moreover, the court recognized that allegations of "a campaign of murder, rape, forced impregnation, and other forms of torture designed to destroy the religious and ethnic groups" in Bosnia constitute a violation of the international law norm proscribing genocide. If plaintiffs can show that Karadzic had state authority a claim would also lie under the TVP Act. The court declined to rule on the availability of general federal question jurisdiction. The Court of Appeals also determined that service of process upon Karadzic in New York City, but outside of the "headquarters district" of the United Nations, was effective. Finally, the court concluded that the political question and act of state doctrines were inapplicable, particularly in light of the Statement of Interest by the Solicitor General and the State Department's Legal Adviser supporting a finding of jurisdiction in this case.
II. Refugee Cases:

(a) Yang v. Maugans, Nos. 95-7316--7321 and Nos. 94-435, 94-560, 94-601, 1995 U.S. App. LEXIS 30649 (3d Cir. October 24, 1995). Six passengers from the "Golden Venture," an alien ship carrying over 300 smuggled Chinese passengers which ran aground off of New York City in June 1993, were apprehended and detained within thirty minutes of swimming ashore. They filed habeas corpus petitions after they were denied asylum in exclusion proceedings. They sought partial summary judgment on whether they effected "entry" under Section 101 of the Immigration and Nationality Act of 1952, entitling them to full deportation hearings with due process, rather than the summary exclusion proceedings which they were accorded. The majority held that the three-prong test to determine "entry"--(i) a crossing into the territorial limits of the U.S.; (ii) inspection and admission by an immigration officer or actual and intentional evasion of inspection at the nearest entry point; and (iii) freedom from official restraint--could only be satisfied by reaching dry land, not by arriving in territorial waters undetected. During the brief time petitioners were on the beach (which had been cordoned off by the authorities), prior to being physically detained, they were never free from official restraint.

(b) Zhang v. Slattery, 55 F.3d 732 (2d Cir. 1995). The Court of Appeals, reversing the district court, dismissed the habeas corpus petition of a smuggled Chinese passenger on the "Golden Venture." The court upheld the Board of Immigration Appeal's ("BIA") policy that China's "one child" program cannot in itself serve as a basis for the granting of refugee status, and therefore Zhang's fear of forced sterilization was not sufficient to entitle him to asylum or withholding of deportation.

(c) Singh v. Ilchert, 63 F.3d 1501 (9th Cir. 1995). Petitioner, a Sikh citizen of India, filed a writ of habeas corpus after the BIA denied his application for asylum and withholding of deportation. After concluding that the petitioner had established statutory eligibility for political asylum, the district court remanded to BIA for additional evidence on the situation in other parts of India. The Court of Appeals held that once petitioner established persecution due to his political views, he was not required to demonstrate country-wide persecution. The court noted Congress' intent in passing the Refugee Act of 1980, establishing statutory requirements for asylum and withholding of deportation, was to bring the U.S. into conformity with the U.N. Convention Relating to the Status of Refugees. The court, referring to the United Nations High Commissioner for Refugees, Handbook on Criteria and Procedures for Determining Refugee Status, observed that a country-wide threat of persecution is not a necessary prerequisite to a successful asylum claim. Because the INS introduced no evidence to rebut the presumption of India's ability to act on a nationwide basis, there was no need for the district court to order BIA to conduct further proceedings. See also Singh v. Moschorak, 53 F.3d 1031 (9th Cir. 1995) (reversing lower court view that asylum is not available if persecution is confined to one region in India).

(d) Kofa v. U.S. I.N.S., 60 F.3d 1084 (4th Cir. 1995) (en banc). In a 7-5 decision, the Court of Appeals interpreted Section 1253(h)(2)(B) of the Immigration and Nationality Act to mean that an alien is a "danger to the community" once he has been convicted of a particularly serious crime and is therefore ineligible for withholding of deportation. There is no need for a separate determination of whether the alien is a danger to the community. Six other circuit courts of appeal have reached the same conclusion by also finding that the statute states a cause and effect relationship between conviction and community danger, or by concluding that the statute's language is ambiguous and adopting BIA's interpretation as reasonable. The court rejected petitioners reliance on Article 33 of the U.N. Refugee Convention (prohibiting return or refoulement of refugees), finding the provision to be identical to the U.S. statute.

III. United Nations:

(a) International Criminal Tribunal for the Former Yugoslavia (the "Tribunal")

As of mid-December 1995, the Tribunal had indicted 52 Bosnian Serbs and Croatians. (See LEXIS Counsel Connect, Menu: Library--Briefs, Memos and Forms by Practice Area--International Law--International Law Briefs and Other Materials.) The Tribunal twice indicted Radovan Karadzic, the president of the Bosnian-Serb Administration, and Ratko Mladic, military commander of the Bosnian-Serb army, on counts of genocide, crimes against humanity and violations of the customs of war. The sole defendant in the custody of the Tribunal, Dusko Tadic, a Bosnian Serb, was indicted on February 13, 1995, 34 I.L.M. 1011. He, with others, is charged with genocide, grave breaches of the Fourth Geneva Convention, crimes against humanity, violations of the laws or customs of war, and other violations included in the Tribunal's statute. Tadic is charged with participating in the collection, mistreatment and killing of Bosnian Muslims and Croats within and outside Omarska camp in Bosnia-Herzegovina. The indictments were confirmed by a judge of the Tribunal, and arrest warrants were directed to the authorities of the Bosnian-Serb Administration in Pale, and to the Federal Republic of Germany where Tadic had been found and detained. On April 24, 1995, Tadic was transferred from Germany to the Tribunal's seat in The Hague, where he was formally charged. He pleaded not guilty. In Prosecutor v. Tadic, Decision on the Defense Motion on Jurisdiction, Case No. IT-94-1-T (August 10, 1995) the Trial Chamber of the Tribunal rejected the defense motions challenging the legality of the establishment of the Tribunal; the grant of primacy to the Tribunal over national courts; and the subject matter jurisdiction of the Tribunal. Noting the broad discretion of the Security Council under Chapter VII of the UN Charter, the Trial Chamber held that it was not empowered to review the Security Council's authority. The Tribunal rejected the defense argument that the national courts of Bosnia-Herzegovina or of the entity known as the Bosnian-Serb Republic, have primary jurisdiction to try the accused. The Trial Chamber noted that the alleged crimes are subject to universal jurisdiction and that the only two states in a position to exercise jurisdiction, Germany and Bosnia-Herzegovina, support the Tribunal's jurisdiction. Finally, the Tribunal rejected the argument that because there was no international armed conflict at the time of the alleged violations the charges do not fall within the subject matter jurisdiction of the Tribunal. The Trial Chamber concluded that it has jurisdiction over the alleged crimes regardless of the character of the hostilities since the crimes constitute violations of customary international law.

(b) Reservations to the International Covenant on Civil and Political Rights (the "ICCPR"
or the "Covenant")

Pursuant to Article 40 of the ICCPR, the Human Rights Committee adopted a General Comment on Issues Relating to Reservations made Upon Ratification or Accession to the Covenant or the Optional Protocols, or in Relation to Declarations under Article 41 of the Covenant, 34 I.L.M. 839 (1995), U.N. Doc. CCPR/C/21/Rev.1/Add.6 (November 2, 1994). The Committee noted that 46 of the 127 States Parties to the Covenant have entered 150 reservations of varying significance. Some reservations exclude the duty to provide and guarantee particular rights; other reservations seek to ensure that the Convention would not supercede some domestic laws; still other reservations are directed at the competence of the Committee. The Committee declared inter alia: "The number of reservations, their content and their scope may undermine the effective implementation of the Covenant and tend to weaken respect for the obligations of States Parties." The Committee's General Comment declares that reservations are incompatible with the object and purpose of the Covenant if they offend peremptory norms, or customary international law, or if they release a State from guarantees to provide remedies for violations. Furthermore, a State has a heavy onus to justify reservations to the non-derogable provisions of the Covenant. Reservations that purport to evade the monitoring role of the Committee are also incompatible with the object and purpose of the Covenant. "Accordingly, a reservation that rejects the Committee competence to interpret the requirements of any provision of the Covenant would also be contrary to the object and purpose of that treaty."

On March 28, 1995, the U.S. submitted observations on the Committee's General Comment. The State Department Legal Adviser took issue with several points in the General Comment and questioned the competence of the Committee to determine whether a reservation violates the object and purpose of the Covenant. In response, the Chairman of the Committee clarified a few matters in the Comment but reiterated the authority of the Committee to determine the compatibility of reservations with the object and purpose of the Covenant.

IV. The European Human Rights System:

(a) McCann and Others v. the United Kingdom, European Court of Human Rights,
September 27, 1995 (to be published in Eur. Ct. H.R. (Ser. A)). By ten votes to nine, a Grand Chamber of the European Court held that in an operation to apprehend three Irish Republican Army terrorists in Gibraltar, the United Kingdom violated Article 2 of the European Convention on Human Rights, which protects the right to life. The majority was "not persuaded that the killing of the three terrorists constituted the use of force which was no more than absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2. . . ." The combination of the authorities' decision not to prevent the suspects from traveling to Gibraltar when they knew the suspects were planning a bombing; the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might be erroneous; and the automatic recourse to lethal force when the soldiers opened fire, were factors in the majority's decision. In light of the terrorist suspects' intent to plant a bomb the Court did not consider it appropriate to award damages and awarded only costs and legal fees.

V. The Inter-American Human Rights System:

(a) Inter-American Commission (the "Commission") Finds "Contempt Laws" Incompatible
With American Convention on Human Rights

An Argentinian journalist who was convicted under that government's ley de desacato (law against insulting, threatening or defaming a public functionary), appealed to the Inter-American Court of Human Rights. In a friendly settlement of the case Argentina repealed the law and both parties requested the Commission to examine the various leyes de desacato of the member countries of the Organization of American States. The Commission concluded that laws criminalizing speech that does not incite to violence are incompatible with the right of freedom of speech and thought set forth in Article IV of the American Declaration of the Rights and Duties of Man, and expanded upon in Article 13 of the American Convention on Human Rights (the "Convention"). Annual Report of The Inter-American Commission on Human Rights 1994, OEA/Ser. L/V/II.88 Doc. 9 rev (February 17, 1995). Furthermore, the Commission found that the leyes de desacato were contrary to the Convention's fundamental purpose of allowing and protecting a pluralistic, democratic way of life. The Commission therefore recommended that the 14 member countries of the Organization of American States with leyes de desacato repeal or amend them to comply with human rights treaties.

(b) Case of Neira Alegria and Others, No. 10.078 (Sentence of January 19, 1995). The case involved three Peruvian men detained and charged with terrorist acts. Riots erupted simultaneously at three prisons and the Navy was called in to take control of the facility where they were held. Approximately 300 inmates died or were killed in the aftermath of the riots. The three men have not been seen since. The petitioners alleged that most of the deaths were due to the Navy's use of excessive force and, in particular, to the decision to blow up the facility while most of the inmates were still incarcerated. Peruvian civilian courts refused to grant a remedy on the ground that a state of emergency had been declared. Subsequently, closed military court proceedings exonerated all of the Naval participants of any responsibility for the deaths of the inmates. The Inter-American Court of Human Rights (the "Court") rendered a decision on the merits, finding Peru in violation of several provisions of the Convention, including the right to life and the right to petition for habeas corpus. The Court ordered Peru to compensate the victims' families and to reimburse them for expenses incurred in bringing actions before Peruvian authorities.

(c) Case of Colotenango, No. 11.212 (Decision of December 1, 1994). The Court issued
provisional measures to protect certain victims, their families and lawyers, and witnesses of human rights violations in a matter against Guatemala before the Commission. Petitioners argued that their lives were being threatened by the failure to enforce arrest warrants against 13 patrol members charged in a case before a Second Trial Court with criminal acts in Colotenango. The Court went beyond previous grants of protection that had simply called on the government concerned to adopt measures to protect the rights to life and integrity. The Court here required the Government of Guatemala specifically to use all means at its disposal to enforce the arrest warrants. . . ."

VI. Foreign Court Cases:

(a) South Africa: The State v. T. Makwanyane and M. Mchunu, Case No. CCT/3/94,
(Constitutional Court of the Republic of South Africa, June 6, 1995). (Internet citation:
http://www.law.wits.ac.za/judgements/deathsn.html). The Court held that a provision of the criminal procedure act prescribing the death penalty as a competent sentence for murder was unconstitutional under the new 1993 Constitution, thereby prohibiting the state or any of its organs from executing anyone from the date of judgment forward, regardless of when the crime was committed or the sentence determined. The Constitution does not deal specifically with the death penalty, but prohibits "cruel, inhuman or degrading treatment or punishment," as well as granting to every person "the right to live" and "the right to respect for and protection of his or her dignity." The Court exhaustively canvassed the death penalty jurisprudence of several countries and in particular U.S. case law, including Furman v. Georgia and Gregg v. Georgia. The Court noted that while the U.S. Supreme Court has declined to find capital punishment unconstitutional per se, in certain circumstances the sentence has been arbitrary and thereby unconstitutional. The Court balanced the destruction of life and dignity, the possibility of arbitrariness and of error, and the existence of a severe alternative punishment (life imprisonment), against claims that the death penalty is a deterrent to murder and the public demand for retributive justice. The Court concluded that it was required to value the rights of life and dignity above all others and that this could not be achieved by objectifying murderers and putting them to death.

(b) Australia: Theophanous v. The Herald & Weekly Times, 124 A.L.R. 1 (1994). (Internet
citation: http://www.austlii.edu.au/au/cases/cth/high_ct/182clr104.html). In a 4-3 decision arising out of a common law suit for defamation, the High Court of Australia ruled that the Australian constitution implied a freedom to publish material of political interest, including comment on the suitability for office of a member of parliament. After considering the U.S. Supreme Court case, New York Times v. Sullivan, a majority of the Court held that the existing defamation laws were inapplicable when the speech fell within the constitutionally protected zone. Three of the judges in the majority ruled that Sullivan did not provide adequate protection for reputation and offered the following test: when a defendant publishes defamatory matter it should be liable in damages unless it can establish that it was unaware of the falsity, that it did not publish recklessly and that the publication was reasonable under the circumstances either because the defendant took steps to check the accuracy of the impugned material or because it was justified in publishing without taking such steps. The fourth member of the majority found the Sullivan test too restrictive and that the guarantee of free communication precluded the application of defamation laws to impose liability in damages upon a citizen for publication of statements about official conduct or an individual's suitability for office. The case at hand was remanded to the lower court for further proceedings.