International Human Rights Law Update
Spring 1996
Katherine Hall Martinez, Editor
I. U.S. Court Cases:

(a) Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996). The plaintiffs, former prisoners in
Ethiopia, brought suit under the Alien Tort Claim Act ("ATCA") alleging that the defendant
had been an Ethiopian government official who personally supervised their torture during the "Red Terror" in the 1970s. Following a two-day bench trial, the district court entered judgment for the plaintiffs and awarded each plaintiff $200,000 in compensatory damages and $300,000 in punitive damages. Negewo argued on appeal that (i) the court lacked subject matter jurisdiction because the ATCA itself does not provide a private right of action, nor does it incorporate a right of action by reference to a treaty or federal law, and (ii) the issue raised was a non-justiciable "political question." The Court of Appeals held that the ATCA requires only an allegation of a violation of the law of nations and that the court's own precedent precluded reliance on the political question doctrine merely because foreign relations were implicated. See Linder v. Portocarrero, 963 F.2d 332, 337 (11th Cir. 1992) (political question doctrine did not bar a tort action instituted against Nicaraguan contra leaders).

(b) Kadic v. Karadzic, 74 F.3d 377 (2d Cir. 1996) (reh'g denied). [See Internat'l Human Rights Law Update, Fall 1995] Karadzic moved for a rehearing arguing that the ATCA was intended to grant federal jurisdiction only for violations of the law of nations by crews of vessels stopping and boarding ships believed to be aiding the enemy in time of war. The court denied the motion, noting that a broad reading of the ATCA was established by the Second Circuit in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), and codified by Congress in the Torture Victim Protection Act of 1991 ("TVPA"). Defendant's counsel subsequently filed a petition for certiorari to the Supreme Court regarding the Court of Appeals' original ruling; certiorari was denied on June 17, 1996. See 70 F.3d 232 (2d Cir. 1995), petition for cert. denied, 64 U.S.L.W. 3837 (U.S. 1996).

(c) Mushikiwabo v. Barayagwiza, No. 94 Civ. 3627 (S.D.N.Y. April 8, 1996). The plaintiffs, whose families were massacred during the Rwandan genocide, sued Barayagwiza, a leading Rwandan political figure, under the ATCA, the TVPA, and the Rwandan Civil Code. Judge Martin accepted plaintiffs' declarations regarding the massacre of their relatives and awarded compensatory and punitive damages totalling $110 million. The court followed the Second Circuit's opinion in Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), finding jurisdiction under both the ATCA and the TVPA. The court also found that the TVPA requirement that local remedies be exhausted was met in view of the virtually inoperative Rwandan judicial system. Defendant sent a letter to the court claiming immunity, stating that he was served while attending a U.N. session. The court rejected the argument based on the subsequent waiver of immunity issued by the Government of Rwanda and the rejection of a similar argument by the Court of Appeals in Kadic. Id. at 246-48.

(d) In re Cincinnati Radiation Litigation, 874 F. Supp. 796 (S.D. Ohio 1995). A group of low income and African American cancer patients who were subjected to medical experiments between 1960 and 1972 without their knowledge brought suit under 42 U.S.C. §§ 1983 and 1985(3). The court denied defendants' motion to dismiss. In a lengthy discussion of the judgment of the post-WWII Nuremberg Tribunal, the court held that based on the principles articulated in that judgment and by the time of the experiments, the prevailing law required voluntary consent to bodily invasion, and a reasonable official should have known that the victims' due process rights were being violated. The court said: "The Nuremberg Code is part of the law of humanity. It may be applied in both civil and criminal cases by the federal courts in the United States." Id. at 821.

(e) Moore v. Ganim, 660 A.2d 742 (Conn. 1995). The Connecticut Supreme Court held that a state statute terminating general assistance after nine months was constitutional and that the Connecticut Constitution does not oblige the state to provide minimum subsistence to the poor. Peters, C.J., however, concurring in the decision, said that the Connecticut Constitution includes the notion of "a qualified right to some limited form of governmental assistance" to support the poor. Referring to the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights, Justice Peters noted that although no right to subsistence may yet apply to the U.S. as part of customary international law and that the U.S. is not a party to the Covenant, "the wide international agreement on at least the hortatory goals identified in the human rights documents strongly supports the plaintiffs' claim." She concluded, nevertheless, that the plaintiffs did not prove that the statute was an improper exercise of the legislature's broad discretion to implement its obligation to provide minimum subsistence.

II. Refugee Issues:

In re Fauziya Kasinga, Bd. of Immig. Appeals, File A73 476 695 (June 13, 1996). The Board of Immigration Appeals (the "Board") held, for the first time, that a well-founded fear of female genital mutilation ("FGM") can be the basis for a grant of asylum under section 208 of the Immigration and Nationality Act (the "Act"), 8 U.S.C. §1158 (1994). The Board declined to determine the standards for granting asylum in future FGM cases. Confining its holdings to the facts of Kasinga's case, the Board held that FGM as practiced by the tribe in Togo of which Kasinga was a member, constituted a level of harm sufficient to constitute "persecution" under the Act. The Board granted her asylum, holding that Kasinga was a member of a "particular social group" consisting of young women of her tribe who have not been subjected to FGM and who oppose the practice, and that she therefore had a well-founded fear of country-wide persecution.

III. United Nations:

(a) Human Rights Committee Conclusions on U.S. Report, U.N. Doc. CCPR/C/79/Add.50 (1995). [See Internat'l Human Rights Law Update, Spring 1995, and Fall 1995.] In its comments on the Report of the U.S. pursuant to the International Covenant on Civil and Political Rights ("ICCPR"), the Human Rights Committee expressed regret that members of the federal, state and local judiciary have not been adequately informed of the obligations undertaken by the U.S. under the ICCPR and that continuing education programs for the judiciary have not covered the ICCPR and its implementation. The Committee recommended that measures be taken to ensure that the legal profession and judicial and administrative authorities be made aware of the ICCPR's provisions and of U.S. obligations under that Covenant.

(b) Human Rights Aspects of the General Framework Agreement for Peace in Bosnia and
Herzegovina ("GFA") [as envisioned by the Dayton peace accord], 35 I.L.M. 75 (1996) (Done at Paris, December 14, 1995). Two annexes to the GFA deal directly with human rights. Annex 6, "Agreement on Human Rights," 35 I.L.M. 130 (1996), provides for implementation of Article II of the Constitution of Bosnia and Herzegovina concerning human rights and fundamental freedoms. That Annex establishes a "Commission on Human Rights" consisting of the "Office of Ombudsman," which is to receive and investigate allegations of human rights violations, and a "Human Rights Chamber" to hear referrals from the Ombudsman, from parties to the treaty, or directly from victims. Annex 7, the "Agreement on Refugees and Displaced Persons," 35 I.L.M. 136 (1996), provides for the implementation of the constitutional provisions on the reversal of ethnic cleansing, principally by establishing an independent "Commission for Displaced Persons and Refugees" to oversee the voluntary return of people to their homes and the restoration of their property.

(c) International Criminal Tribunal for the Former Yugoslavia (the "Tribunal").

(i) Decision in Prosecutor v. Tadic (October 2, 1995), 35 I.L.M. 32 (1996). Tadic appealed the Trial Chamber's August 10, 1995 judgment [See Internat'l Human Rights Law Update, Fall 1995, p. 2], contending that the Tribunal was illegally founded, denying the primacy of the Tribunal over national courts, and asserting that the Tribunal lacked subject matter jurisdiction because the alleged crimes did not occur in the context of an armed conflict. On the issue of the legality of the establishment of the Tribunal, the Appeals Chamber, contrary to the Trial Chamber, held 4-1 that the Security Council's authority to establish the Tribunal was a justiciable question. It concluded that Chapter VII of the UN Charter (and, in particular, Art. 41) gives the Security Council broad discretion in determining measures to secure and maintain peace including the creation of an international tribunal. The Appeals Chamber also rejected Tadic's challenge to the primacy of the Tribunal's jurisdiction as declared by the Security Council. That Bosnia-Herzegovina is a state and could exercise jurisdiction over an alleged offense does not preclude the establishment of an international tribunal with jurisdiction over the same offense. The jurisdiction of a state to try offenses committed in the state's territory may be an aspect of its sovereignty and within its domestic jurisdiction, but both are subject to the authority of the Security Council to which member states submitted by adhering to the UN Charter. Similarly, Tadic's claim of a right to be tried by his nation's courts cannot stand as an obstacle to the jurisdiction of an impartial international tribunal to try cases of universal interest. The Appeals Chamber also ruled that Tadic's alleged crimes were committed in the context of an armed conflict and that the Tribunal has jurisdiction whether such conflict is deemed internal or international.

(ii) Indictment of Gagovic & Others, Case no. IT-96-23-I (June 26, 1996). The Tribunal indicted 8 Serbs, members of the military, paramilitary and police, charging them with the rape of 14 Muslim women. This marks the first time that rape has been considered as a separate indictable war crime. The indictment details acts of sexual assault and, principally on the basis of such acts, charges the perpetrators with crimes against humanity, grave breaches of the Geneva Conventions and violations of the laws or customs of war.

IV. European Human Rights Law:

(a) Lopez Ostra v. Spain, 303-C Eur. Ct. H.R. (ser. A) (December 9, 1994). A Spanish national filed an application with the European Commission of Human Rights (the "Commission"), asserting that she was unable to obtain relief under Spanish law from the noxious emission of a water purification and waste treatment station located near her home. The Commission found that the annoyances constituted a breach of Article 8 of the European Convention on Human Rights, protecting the right to private and family life, but did not constitute degrading treatment under Article 3. The European Court of Human Rights unanimously affirmed the findings of the Commission, holding that serious consequences of environmental degradation may affect an individual's well-being so as to deprive her of the enjoyment of private and family life; and public authorities must take necessary measures to protect these rights. See International Decisions, 89 A.J.I.L. 788 (1995).

(b) Kalanke v. Freie Hansestadt Bremen. European Court of Justice, case C-450/93 [1996] 1 CEC 208 (October 17, 1995), 35 I.L.M. 265 (1995). The European Court of Justice* ruled that a German federal law (the "Bremen Law") violated European Community Law, specifically Council Directive 76/207/EEC (February 9, 1976) relating to the principle of equal treatment in the work place for men and women. The Bremen Law provided that a female applicant who has the same qualifications as a male applying for the same post should be given priority in sectors where women make up less than half of the relevant personnel category. The court declared that the exemption in the Directive allows automatic preferences to women for appointment and promotion only to remedy real, existing inequalities that affect women's access to occupation. In a press release of the European Commission (IP (96) 257 (March 27, 1996)), the Commission took a narrow view of the court's ruling, stating that only rigid quota systems are illegal and that employers are free to use other forms of positive action, including flexible quotas. (c) Loizidou v. Turkey, 310 Eur. Ct. H.R. (ser. A) (March 23, 1995). The case involved a Greek Cypriot woman who alleged that she had been prevented by Turkish troops from returning to land she owned in Northern Cyprus, and that her human rights were further violated when she was arrested and detained by Turkish Cypriot policemen while participating in a march of Greek Cypriot refugee women. The Grand Chamber of the European Court of Human Rights held that the applicant was a person "within [the] jurisdiction" of Turkey under the European Convention, because Turkish troops in Northern Cyprus could exercise effective control there. The court held that the term "jurisdiction" in Article 1 of the Convention is not restricted to the territory of a party, but covers any acts by national authorities, wherever originated and performed, and wherever the effects of such acts are felt. The court reserved determination of responsibility for the impugned acts to the merits stage. See International Decisions, 90 A.J.I.L. 98 (1996).

* This is a decision of the European Court of Justice sitting in Luxembourg, and a press
release of the European Commission sitting in Brussels--both organs of the European Union. To be distinguished are the European Court of Human Rights and the European Commission of Human Rights, established by the European Convention on Human Rights, and sitting in Strasbourg.

V. The Inter-American Human Rights Law:

Case of Caballero Delgado y Santana, No. 10.319 (December 8, 1995). The Inter-American Court of Human Rights (the "Court") held that the Republic of Colombia had violated Article 4 (the right to life) and Article 7 (the right to personal liberty) of the Inter-American Convention regarding the disappearance of Isidro Caballero Delgado and Maria del Carmen Santana in February 1989. Caballero Delgado was a union leader and both victims allegedly had ties to the Movimiento 19 de Abril (M-19). The court concluded on the basis of eyewitness testimony, that members of the Colombian armed forces were responsible for their detention and disappearance and, therefore, the government was liable. The court refused to find a violation of Article 5 (right to humane treatment) or Article 8 (right to a fair trial) in light of the short period of detention prior to their death. Furthermore, because a Colombian judge did attempt, albeit unsuccessfully, to resolve a habeas corpus petition brought on behalf of Caballero Delgado, the court did not find a violation of Article 25 (right to judicial protection). The court ordered Colombia to continue the judicial inquiry, to sanction those responsible, and to compensate the family members for their loss and expenses, the amount and form of such compensation to be determined in a future proceeding.

VI. Foreign Court Cases:

(a) Argentina: ESMA Case, Case No. 761 (Fed. Ct. of Appeals, Buenos Aires, July 18, 1995). Petitioners sought special measures to obtain additional information from the executive branch regarding the disappearance of individuals during the military dictatorship from 1974-1983. The court rejected the petition, finding jurisdiction to be lacking because no case or controversy existed upon which it could fashion a remedy. The court stated that the Undersecretary of Human Rights in the Ministry of Interior had all the information and that it was available for examination. The court, however, permitted Human Rights Watch and the Center for Justice and International Law to submit an amicus curiae brief. This was the first time a submission by international human rights organizations is known to have been accepted and cited in an opinion by a Latin American appeals court.

(b) Ethiopia: Trials of Former Ethiopian Government Officials (ongoing). In the first of several trials some 70 former Dergue members have been brought to trial. (Colonel Mengistu Haile Meriam, along with 21 others, are being tried in absentia.) They have been charged by the Special Prosecutor's Office ("SPO") with genocide and crimes against humanity in violation of the Ethiopian Penal Code of 1957 (the "Penal Code"), and, alternatively, with aggravated homicide and homicide in the first degree, on account of numerous killings, incidents of bodily harm, and enforced disappearances, allegedly committed from 1974-1991. The defendants face the death penalty if convicted. Counsel for the defendants argued that the charges should be dropped on various grounds. Counsel claimed head of state immunity for one of the defendants and asserted, as to all the defendants, that only an international tribunal should try allegations of genocide. Counsel argued that the definition of genocide in the Amharic version of the Ethiopian law (as well as in the Convention on the Prevention and Punishment of the Crime of Genocide) does not include politically motivated killings. Counsel also urged that the charges be dropped because of the need for national reconciliation. The court rejected all of the objections. It held that Ethiopian courts had jurisdiction to try the crime of genocide, a crime under Ethiopian law, and that the original French-language version of the Penal Code from which the Amharic version was translated includes politically motivated killings in the definition of genocide. It ruled that the crimes alleged did not permit invocation of head of state immunity and it rejected the plea for national reconciliation as not being a legal defense that could be considered by the court. On November 28, 1995, the trial commenced with the presentation by the SPO of amended charges. See Trial Update (Trial Observation and Information Project, February 1996).