International Law Cases: Summarized Notes

Pinochet Fights Extradition

• Facts:
  • Augusto Pinochet (1915-) was the military dictator of Chile from 1973 to 1990.
  • His government arrested thousands of people to destroy leftist political forces in Chile.
  • Many were tortured, executed, or made to disappear, allegedly on Pinochet's orders.
  • Among the victims were 79 Spanish nationals.
  • After surviving an assassination attempt in 1986, Pinochet dealt more harshly with dissidents.
  • In 1988, Chileans rejected a referendum that would have allowed Pinochet a second eight-year term beginning in 1989.
  • In 1990, he stepped down from the presidency.
  • Pinochet retired from the army in 1998 and assumed a lifetime seat in the Chilean senate.
  • As a senator, Pinochet was immune from prosecution for crimes carried out during his dictatorship within Chile.
  • Thousands of Chileans protested when he assumed his senate seat.
  • The Chilean constitution shielded Pinochet from prosecution in Chile, but did not protect him from judicial proceedings overseas.
  • In 1998, while Pinochet was seeking medical treatment in the United Kingdom, a Spanish judge requested his extradition to Spain.
  • The charges included murder, terrorism, torture, genocide, and other human rights violations committed during his regime.
  • British Prime Minister Tony Blair agreed to detain Pinochet.
  • The United Kingdom had signed the 1984 UN Convention against Torture, which Pinochet had violated.
  • Pinochet was arrested under the UK Extradition Act, leading to a case that was ultimately appealed to the House of Lords.
  • The Chilean government demanded Pinochet's release, arguing that, as a senator, he had diplomatic immunity.

Issues and Arguments

• An initial decision by the House of Lords in November 1998 held that the "act of state" doctrine, which gave immunity to heads of state for acts required to govern, cannot make acts of torture and murder official government functions.
• Nuremburg Trials:
  • This position was stated in the International Military Tribunal of Nuremburg (the Nuremburg Trials), which prosecuted Nazi war criminals at the end of World War II.
  • Crimes against international law are committed by men, not by abstract entities; only by punishing individuals who commit such crimes can the provisions of international law be enforced.
  • The principle of international law, which under certain circumstances, protects the representative of a state, cannot be applied to acts that are condemned as criminal by international law.
  • The authors of these acts cannot shelter themselves behind their official position to be freed from punishment in appropriate proceedings.
  • Pinochet's position as government leader therefore did not protect him against liability for acts of torture and murder, and this liability paved the way for his extradition.
  • However, the decision was tainted by a successful allegation of bias (because of the involvement on the part of the wife of one of the lords in Amnesty International, which was an intervenor in the case), and a new hearing was required.
  • The second decision in the House of Lords featured lengthy and complicated multiple reasons (separate reasons by individual lords).
  • The majority position, put forward by Lord Browne-Wilkinson, was the same as in the first decision: that the "act of state" defense is not available to justify immunity when the crimes alleged are torture and murder.
  • While the decision provided for extradition in this situation, the majority placed limits on the general right to extradite by finding that the United Kingdom could extradite only for crimes committed after 1988, the year in which torture became a crime in that country (by the implementation of the UN Convention against Torture through UK domestic legislation).
  • Concurring in part, Lord Millett expressed the broader view that international law allows for extradition for crimes committed earlier than 1988, because a prohibition against torture is a longstanding norm of customary international law.
• Decision:
  • On March 24, 1999, Pinochet was found not to be immune to prosecution for his alleged crimes, and in October of the same year, a British magistrate ordered that the extradition could proceed.
  • However, because of Pinochet's poor health, his prosecution was not pursued in either Britain or Spain.
  • Pinochet returned to Chile, where half-hearted attempts to prosecute him also were not pursued.

Lockerbie Bombing

• Facts:
  • In 1988, Pan Am flight 103, flying from Frankfurt to New York, exploded over Lockerbie, Scotland.
  • The crew and all 259 passengers were killed, as were 11 persons on the ground.
  • The dead were nationals of 21 states; almost two-thirds were American and a quarter were British.
  • On November 14, 1991, arrest warrants were issued in Scotland for two Libyans accused of conspiracy, murder, and an offence under the Aviation Security Act, 1982, in connection with the explosion.
  • It was believed they were officers of the Libyan Intelligence Service.
  • A similar warrant was issued in the United States.
  • France issued warrants against Libyan officials accused of involvement in a 1989 explosion of UTA flight 772, which killed 192 people.
  • In a joint declaration in November 1991, the United Kingdom, the United States, and France called upon Libya to hand over the two Libyans for trial in Scotland or the United States and to satisfy the requirements of French justice and renounce international terrorism.
  • Libya did not comply and instead, acting in accordance with the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (the Montreal Convention), to which it and the other three states were parties.
  • Libya took the steps required of it to establish its own jurisdiction in the cases.
  • It ensured the presence of the accused in Libya and initiated an inquiry into the facts.
  • Libya submitted the cases to competent authorities for prosecution and sought the assistance of the United Kingdom in the proceedings.
  • The United Kingdom refused, insisting on extradition even though the two countries had no extradition treaty.
  • Libyan law did not permit extradition of its nationals.
  • In early 1992, the United Kingdom, the United States, and France took the case to the UN Security Council, which passed resolutions urging Libya to "provide a full and effective response” to their requests.
  • On March 3, 1993, Libya instituted proceedings against the United States and the United Kingdom before the International Court of Justice under article 14 of the Montreal Convention.
  • Libya asked the Court to declare that it had complied with its obligations under the Montreal Convention and that the United Kingdom had breached the Convention by seeking to force Libya to return the alleged offenders and by not providing for the Libyan proceedings.
  • After the oral hearing of this application, the Security Council, at the request of the United States, the United Kingdom, and France, adopted Resolution 748 under Chapter VII of the UN Charter.
  • It required Libya to hand over the alleged offenders and then imposed sanctions against it for not doing so.
  • The Council acted on the basis that Libya was engaged in international terrorism, which was a threat to the peace under article 39 of the UN Charter.

The Law

• From the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 1971:
  • Any dispute between two or more Contracting States concerning the interpretation or application of this Convention that cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration.
  • If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.
  • Each State may at the time of signature or ratification of this Convention or accession [later agreement] thereto, declare that it does not consider itself bound by the preceding paragraph.
  • The other Contracting States shall not be bound by the preceding paragraph with respect to any Contracting State having made such a reservation.
  • Any Contracting State having made a reservation in accordance with the preceding paragraph may at any time withdraw this reservation by notification to the Depositary Governments [states where treaty documents are held and where notifications are received].

From UN Security Council Resolution 731 (January 21, 1992):

• The Security Council, Determined to eliminate international terrorism.
• Condemns the destruction of Pan Am flight 103 and the resultant loss of hundreds of lives.
• Strongly deplores the fact that the Libyan Government has not yet responded effectively to requests to cooperate fully in establishing responsibility for the terrorist acts.
• Urges the Libyan Government immediately to provide a full and effective response to those requests so as to contribute to the elimination of international terrorism.

From UN Security Council Resolution 748 (March 31, 1992):

• The Security Council.
• Decides that the Libyan Government must now comply without any further delay with paragraph 3 of resolution 731 (1992) regarding the requests addressed to the Libyan authorities by France, the United Kingdom of Great Britain and Northern Ireland, and the United States of America.
• Decides also that the Libyan Government must commit itself definitely to cease all forms of terrorist action and all assistance to terrorist groups and that it must promptly, by concrete actions, demonstrate its renunciation of terrorism

Issue

• Did the United Kingdom breach its obligations under the Montreal Convention in trying to force Libya to extradite the alleged terrorists after Libya had tried them under its own jurisdiction?

Guantanamo Bay: Prisoners of War or Not?

• Facts:
  • The September 11, 2001, terrorist attacks on the World Trade Center in New York and the Pentagon in Washington, DC, prompted the United States to take a more aggressive approach to national security.
  • Evidence suggested that the terrorists who targeted the United States belonged to al-Qaeda and had received support and protection from the Taliban government of Afghanistan.
  • In October 2001, the United States led a coalition of nations including Canada in a military campaign against Afghanistan and quickly defeated the Taliban forces.
  • Captured al-Qaeda members and Taliban officials suspected of supporting terrorism were rounded up and detained.
  • Elsewhere in the world, people believed to be al-Qaeda or Taliban members were also arrested.
  • In early 2002, the prisoners were shipped to the US military base at Guantanamo Bay, Cuba.
  • Over 600 prisoners from 43 different countries were transferred to Guantanamo Bay.
  • While being moved, they were handcuffed, blindfolded, made to wear earmuffs, and clamped in leg irons.
  • At the base they were housed in 1.8 m by 2.4 m cages made out of chain-link fencing, with corrugated metal roofs.
  • They were interrogated by military officials.
  • The prisoners were not charged with crimes, nor were they represented by legal counsel.
  • A military commission determined their guilt or innocence.
  • Details of the evidence against each prisoner were not published, nor was the verdict of the tribunal.
  • There was no right to appeal the verdict of the commission.
  • An execution chamber was built on the base soon after the prisoners arrived.
  • US officials announced that the prisoners were to be held at Guantanamo Bay "until the end of the war against terrorism."

Arguments by the US Administration

• The US government claimed that the Taliban and al-Qaeda prisoners were "unlawful enemy combatants" therefore, the Third Geneva Convention did not apply because they were not prisoners of war.
• They were also not protected by US human rights guarantees for criminals because they were not US citizens and they were not in the United States.
• (The Guantanamo Bay base is on Cuban soil under a lease that has existed for over 90 years.)
• The stringent use of force and restraint was necessary because of the prisoners' threat to the United States.
• According to US officials, the prisoners were sheltered from the weather, given culturally appropriate food, had access to medical treatment, and were given copies of the Quran.
• US officials argued that a high degree of secrecy was necessary in order to combat the threat of terrorism.
• Information gained through interrogation led to further arrests.
• Allowing outside observers or participants in the prosecution process might have undermined American efforts to strengthen their own security.

Arguments Offered by Critics

• Numerous organizations and governments condemned the United States' treatment of the prisoners.
• Conditions in the prison were not up to a level expected for prisoners of war, and even US prison officials agreed that the conditions did not meet standards for prisoners in the US justice system.
• The NGO Human Rights Watch argued: "As a party to the Geneva Conventions, the United States is required to treat every detained combatant humanely, including unlawful combatants. The United States may not pick and choose among them to decide who is entitled to decent treatment."
• Amnesty International wrote: "The USA has variously used hooding, blindfolding, handcuffing, and shackling of detainees in Afghanistan, Guantanamo Bay (Cuba), and Iraq. … The administration has sought to insulate its actions … from the eyes of the international community. The USA is undermining the rule of law, and setting a dangerous example in so doing."
• Critics decried the legal limbo in which the prisoners existed, a situation for which there was no provision under international law.
• According to international and human rights law, legal status as a prisoner of war or criminal should be determined by a competent, independent tribunal, not by the US captors.
• This lack of status meant that the prisoners could be held indefinitely without being charged or brought to trial.
• Critics were outraged by the lack of prisoners' rights to a fair trial and representation by counsel.
• Under article 10 of the Universal Declaration of Human Rights and subsequent conventions, every person has the right to a fair and public trial.
• At Guantanamo Bay, the fate of the prisoners was determined in secret by military commissions with the power to convict based on hearsay, with no opportunity for appeal.