Justice and Society Program

Spring 1995

International Human Rights Law Update
Volume 2, No. 1 -- Spring 1995
Katherine C. Hall, Editor
I. U.S. Court Cases involving Human Rights:

(a) Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir 1994), cert. denied, 1995 U.S. LEXIS 681 (Jan. 17, 1995). A Holocaust survivor who had been denied reparations by Germany because its compensation program applied only to German citizens and to "refugees," not to U.S. citizens, brought suit in the district court to recover money damages for the injuries he suffered and the slave labor he performed while a prisoner in Nazi concentration camps. Reversing the district court, the Court of Appeals held that the district court lacked jurisdiction because Germany enjoyed sovereign immunity to suit. Even assuming that the Foreign Sovereign Immunities Act of 1976 ("FSIA") applies retroactively to events occurring in 1942-45, the court found that this suit was not within any of the exceptions to immunity established by the Act. Even if the Nazis' leasing of human labor was a "commercial activity" within the meaning of the FSIA, that activity had no "direct effect" in the United States. And Germany did not implicitly waive its sovereign immunity under the FSIA by violating jus cogens principles of international law. (Wald, J., dissented, id. at 1179.)

(b) Xuncax v. Gramajo, Nos. CIV. A. 91-11564-DPW, CIV.A. 91-11612-DPW, 1995 WL
254818 (D. Mass., Apr. 12, 1995). The court entered default judgments for $47.5 million
dollars against former Guatemalan general and defense minister Hector Gramajo in suits charging him with responsibility for atrocities committed by soldiers under his command in the 1980s. Complaints by nine Guatemalan nationals and one U.S. citizen had been served on Gramajo while he was attending the Kennedy School of Government at Harvard University. As regards the Guatemalan plaintiffs, the court found it had subject matter jurisdiction under the Alien Tort Claims Act, U.S.C. Sec. 1350, following the Filartiga case in the Second Circuit. As regards Sister Ortiz, the plaintiff who was a U.S. citizen, the court held she was entitled to invoke retroactively the Torture Victim Protection Act, so that the case was one "arising under" the laws of the United States for purposes of federal question jurisdiction. The court concluded that plaintiffs had "demonstrated that, at a minimum, Gramajo was aware of and supported widespread acts of brutality committed by personnel under his command resulting in thousands of civilian deaths."

(c) Doe v. Karadzic, 866 F. Supp. 734 (S.D.N.Y. 1994). The court dismissed suit against the defendant, leader of the Bosnian Serbs and self-proclaimed president of a Bosnian Serb entity, by plaintiffs seeking compensatory and punitive damages for acts of rape and other human rights violations. The court found it had no jurisdiction pursuant to the Alien Tort Claims Act because the statute applies only to acts in violation of international law, and therefore extends only to acts of torture engaged in by public officials, not by private individuals. The defendant's alleged acts were not official acts or state-initiated, because the Bosnian Serb entity had no recognized international status as a state. The court also held that it had no jurisdiction under the Torture Victim Protection Act because that Act was intended to apply to actions carried out under the authority or color of law of an entity recognized by the U.S. as a foreign nation, a status which a Bosnian-Serb entity had yet to achieve. The case is on appeal to the Second Circuit.

(d) Lafontant v. Aristide, 844 F. Supp. 128 (E.D.N.Y. 1994). The court dismissed claims for money damages sought by the widow of a political opponent of then-exiled President Jean-Bertrand Aristide of Haiti, who allegedly had ordered the opponent's execution. The court held that while it had subject matter jurisdiction, it lacked in personam jurisdiction because Aristide had head-of-state immunity, supported by the State Department's "suggestion of immunity."

II. Refugee Issues:

Final Rule on Asylum Adjudication

The Immigration and Naturalization Service ("INS") published a final rule designed to streamline the adjudication process for asylum applicants. 59 Fed. Reg. 62284 (1994) (to be codified at 8 C.F.R. pts. 208, 236, 242, 274a and 299) (effective January 4, 1995). The final rule provides that the INS will conduct interviews for all asylum applicants who have filed applications. Under that rule, asylum officers will no longer deny any applications for asylum: they will grant meritorious applications and refer those they do not grant to immigration judges for adjudication in either exclusion or deportation proceedings. Employment authorization will be granted only to asylum applicants whose claims have been approved or that remain pending 150 days after filing. Claims denied within 150 days of filing are not eligible for employment authorization. The final rule also eliminates the filing fee for applicants for asylum or for first-time employment authorization.

III. Ratifications of Human Rights Treaties and Related Issues:

(a) Convention on the Elimination of All Forms of Discrimination Against Women

On September 27, 1994, the Senate Foreign Relations Committee held a hearing to consider Senate consent to ratification of the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW"). See CEDAW, Sen. Exec. Rep. No. 38, 103d Cong., 2d Sess. (1994). The Clinton Administration's ratification package proposed four reservations: the U.S. does not accept any obligation to regulate private conduct except as mandated by federal law; the U.S. will not be obligated to put women into combat positions; the U.S. does not accept what appears to be the Convention's broad doctrine of "comparable worth"; the U.S. is not obligated to introduce maternity leave with pay or comparable benefits without loss of employment. The United States also appended three understandings: the U.S. will carry out its obligations in a manner consistent with the federal nature of its government; the U.S. will not permit any restriction on freedom of speech, expression or association inconsistent with the U.S. Constitution; and the U.S. does not agree to provide free services in connection with pregnancy. The U.S. also appended two declarations; the Convention shall be non-self-executing, and U.S. consent to the jurisdiction of the International Court of Justice is required on a case-by-case basis. The Committee approved CEDAW by a vote of 13 to 5 but it will be reconsidered by the Committee in the 104th Congress. It appears unlikely that CEDAW will be acted upon by the Senate in the near term.

(b) Status of Ratification of Other Conventions

To date, there has been no action with respect to U.S. ratification of the International Covenant on Economic, Social and Cultural Rights; the American Convention on Human Rights; and the Convention on the Rights of the Child. No action is expected in the near future.

(c) First U.S. Report under the International Covenant on Civil and Political Rights (ICCPR)

In July 1994, the U.S. submitted its Initial Report to the Human Rights Committee as required of new parties to the Covenant. See UN Doc. CCPR/C/81/Add.4 (August 24, 1994). The Report consists of a summary of U.S. constitutional and case law with respect to each of the ICCPR's 27 articles. In March 1995, U.S. representatives appeared before the Committee to discuss the report, following which the Committee adopted and published a comment. See Human Rights Committee, CCPR/C/79/Add50, 6 April 1995, fifty-third session.

IV. United Nations:

(a) Yugoslavia War Crimes Tribunal

On February 13, 1995, the Yugoslavia War Crimes Tribunal brought its first indictments against 20 commanders, guards, and visitors at the Serbian-run Omarska camp in northwestern Bosnia where, between May and August 1992, at least 10,000 people, primarily Muslim, were imprisoned and a number of persons were executed. In the first genocide indictment handed down by an international tribunal since Nuremberg, the Tribunal charged Zeljko Meakic, the camp's overall commander, with genocide, defined as the killing of members of a group or the causing of serious bodily or mental harm to members of a group with intent to destroy a national, ethnic, racial or religious group, in whole or in part.

The Security Council established the Tribunal by Resolution 827 in May 1993, 32 I.L.M. 1203 (1993), and the Tribunal adopted Rules of Procedure and Evidence in March 1994, 33 I.L.M. 484 (1994). (See International Human Rights Law Update, Fall 1994.) On May 5, 1994, the Tribunal issued Rules Governing the Detention of Persons Awaiting Trial or Appeal. See UN Doc. IT/38/Rev.3 (May 10, 1994), 33 I.L.M. 1590 (1994). The Rules provide for management of the detention unit, the rights of detainees (including rights to visitation, legal assistance, work and recreation programs and complaints), and the removal and transport of detainees. A Tribunal Directive provides that every defendant is entitled to the assistance of counsel and that counsel will be provided to indigents. The President of the Tribunal, Antonio Cassese, submitted its First Annual Report to the UN Security Council and General Assembly, describing the Tribunal's progress from November
17, 1993 to July 28, 1994. See UN Doc. A/49/342 S/1994/1007 (August 29, 1994); 33 I.L.M. 1619 (1994) (summary of Report). The Report provides for the election of judges for the two chambers, and sets forth the rules of procedure and evidence, the rules governing the detention of persons awaiting trial or appeal, and staffing of the Tribunal's Registry. It explains the slow progress in the initiation and conduct of investigations and prosecutions as due to delays in the appointment of a prosecutor and to inadequate funding.

(b) Rwandan War Crimes Tribunal

On November 8, 1994, the United Nations Security Council, by its Resolution 955, established the Statute of the International Tribunal for Rwanda by vote of 13 in favor to 1 against (Rwanda), with 1 abstention (China). See UN Doc. S/RES/955 (1994), 33 I.L.M. 1598 (1994).

The Tribunal will prosecute and punish persons responsible for genocide (Article 2), crimes against humanity (Article 3), and violations of the Geneva Conventions for the Protection of War Victims (Article 4), committed during 1994 in Rwanda or in neighboring states by Rwandans. The Tribunal's chief prosecutor will be Richard Goldstone, who is also Chief Prosecutor for the International Tribunal for Yugoslavia. The Statute provides for investigation, and for preparation and review of indictments (Articles 17 and 18); trial proceedings (Article 19); the rights of the accused, and for the protection of victims and witnesses (Articles 20 and 21); and for judgment, penalties, and appellate review (Articles 22-25).

(c) The Proposed International Criminal Court

In November 1994, the International Law Commission submitted to the UN General Assembly a draft statute for a proposed permanent International Criminal Court. See UN Doc. A/49/10 at 29 and UN Doc. A/49/738. The Assembly established an ad hoc intersessional committee to consider issues relating to the establishment of such a court. Following a review of comments by states, the Committee will present its findings to the General Assembly at the start of its 50th session, at which time the General Assembly will decide whether to convene an international conference to consider the establishment of the court.

The draft statute would establish a court as a permanent institution open to states parties to the statute. The court would have jurisdiction over the crimes of genocide, aggression, serious violations of the laws and customs applicable in armed conflict, and crimes against humanity. The court would have jurisdiction also of "crimes, established under or pursuant to the treaty provisions listed in the annex." The Annex list includes the Geneva Conventions (on humanitarian law), conventions on crimes against aircraft, on the crime of hostage taking, on crimes against diplomats, on torture, and others. A state party to the statute may accept the jurisdiction of the court with respect to such of the crimes indicated in the Annex as it specifies by a declaration lodged either at the time it becomes party, or thereafter. The court would have jurisdiction over a person with respect to the crime of genocide if a complaint is lodged with the Prosecutor by a state party to the statute that is also party to the Genocide Convention. The court would have jurisdiction as to any of the other crimes covered by the statute if a complaint is lodged by a state having custody of the accused, or by the state on whose territory the alleged crime took place, and that state has itself agreed to accept the jurisdiction of the court in respect of that crime. The court would also have jurisdiction of any of the crimes listed if a matter is referred to it by the UN Security Council acting under Chapter VII of the UN Charter.

The U.S. has indicated its support for a court with jurisdiction to try only war crimes, crimes against humanity, and the crime of genocide, but not crimes related to drug-trafficking, terrorism or "aggression". Moreover, the U.S. believes that the Security Council should have the sole authority to refer cases of war crimes and violations of humanitarian law to the court. See Statement by the Honorable Conrad K. Harper, Legal Adviser, U.S. Dept. of State, Agenda Item 137: Report of the International Law Commission on the Work of its Forty-Sixth Session International Criminal Court, UN Gen. Assembly, 49th Sess., Sixth Comm., USUN Press Release #149-(94) (October 25, 1994).

(d) Draft Declaration of Principles on Human Rights and the Environment

On August 17, 1994, the UN Special Rapporteur issued her Final Report on Human Rights and the Environment to the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. A Draft Declaration of Principles on Human Rights and the Environment, is annexed to the Final Report. See UN Doc. E/CN.4/Sub.2/1994/9. The Declaration elaborates "the right to a secure, healthy and ecologically sound environment" (Principle 2), setting forth substantive and procedural environmental rights and explaining the duties of individuals, states, international organizations, and transnational corporations respectively. The Final Report expresses the hope that the Draft Declaration will support UN efforts to develop norms consolidating the right to live in a healthy environment.

V. The European Human Rights System:

(a) Protocol to the European Convention Establishing a Permanent European Court of Human Rights On May 11, 1994, 27 of the 28 states parties to the European Convention on Human Rights signed Protocol No. 11 to the Convention, 33 I.L.M. 943 (1994). The Protocol establishes a single, permanent European Court of Human Rights to replace the existing part-time Court and the Commission on Human Rights. Protocol No. 11 will enter into force upon ratification by Italy, the remaining state party.

The Court will combine the functions of the old court and the Commission, decide on the admissibility of complaints and, if a case is held to be admissible and no friendly settlement is achieved, decide whether there has been a violation of the Convention. Like its predecessor, the Court will have power to afford "just satisfaction" to the injured party. The Court will consist of full-time judges equal in number to the states parties to the Convention and will sit in "Committees" of three judges, "Chambers" of seven judges or, in cases of exceptional seriousness or importance, in a Grand Chamber of 17 judges.

(b) Recent Cases

(i) Open Door Counselling and Dublin Well Woman v. Ireland, Eur. Ct. H.R. (ser. A),
no. 246 (Oct. 21, 1992). By a vote of 15-8 the Court held that the injunction imposed on the applicant companies by the Supreme Court of Ireland, prohibiting them from assisting pregnant women in travelling abroad to obtain abortions, was disproportionate to the legitimate aim to be served and violated the applicants' freedom to impart information. (Article 10 of the European Convention on Human Rights.) The Court acknowledged that the restriction served a legitimate aim, the "protection of morals," which in Ireland includes the protection of the right to life of the unborn. But the Court found the absolute character of the injunction excessive, since it imposed a "perpetual" restraint, regardless of the age or health of the woman or her reasons for seeking counselling. The Court did not examine whether the right to abortion was guaranteed under the Convention, or whether a fetus enjoyed the right to life. (Article 2)

(ii) Otto Preminger Institute v. Austria, 19 Eur. Hum. Rts. Rep. 34 (1994), to be published in Eur. Ct. H.R. (ser. A), no. 295-A (Sept. 20, 1994). The applicant institute complained that following a criminal prosecution of the Institute for the offense of "disparaging religious precepts," the authorities had seized and forfeited a film it attempted to run at its cinema, in violation of its right to freedom of expression under Article 10. The film contained satirical portrayals of God, Jesus Christ, and other religious figures. The Court held that the seizure and forfeiture served the legitimate aim of "protection of the rights of others," particularly the right to respect for one's religious feelings, that the seizure and forfeiture struck a fair balance between conflicting freedoms, and that no violation of Article 10 had occurred.

(iii) Jersild v. Denmark, 19 Eur. Hum. Rts. Rep. 1 (1994), to be published in Eur. Ct. H.R. (ser. A), no. 298 (Sept. 23, 1994). The applicant, a television journalist, interviewed persons who made racist and xenophobic statements in a feature which addressed the issue of racism and was intended to counter such statements through exposure. The applicant complained that his conviction for aiding and abetting the dissemination of
racist statements violated his right to freedom of expression under Article 10 of the Convention. The Court by vote of 12 to 7 found there had been a violation and stated that news reporting based on interviews constituted an important means whereby the press could play a vital "public watchdog" role, and that the punishment of a journalist for disseminating statements of others in an interview would hamper press contribution to matters of public interest.