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Eritrea-Ethiopia Claims Commission issues partial awards against both parties, citing violations of customary international law and the 1949 Geneva Conventions
The Eritrea-Ethiopia Claims Commission at the Permanent Court of Arbitration in The Hague, The Netherlands, has issued six partial war-related awards. The 1998-2000 border war between Eritrea and Ethiopia claimed the lives of an estimated 70,000 people. The Commission was established by Eritrea and Ethiopia through an agreement signed on December 12, 2000, in Algiers. The purpose is to decide any damage claims that the two countries have against each other. The Commission issued its first decisions in August 2001.
The applicable law of the following awards is customary international law, including customary international humanitarian law as exemplified by relevant parts of the four Geneva Conventions of 1949. Eritrea and Ethiopia acceded to the 1949 Geneva Conventions on August 14, 2000. The awards of December 19, 2005 are:
- Partial Award – Prisoners of War – Eritrea’s Claim 17: Ethiopia held approximately 2,600 Eritrean Prisoners of War (POWs). Ethiopia is liable for failing to prevent abuse of Eritrean POWs, for frequently depriving Eritrean POWs of footwear during long walks, for forced indoctrination of Eritrean POWs, for deficient nutrition and medical care of Eritrean POWs, and for delaying their repatriation in 2002.
- Partial Award – Prisoners of War – Ethiopia’s Claim 4: Eritrea held approximately 1,100 Eritrean POWs. For example, Eritrea is liable for denying the Red Cross access to Ethiopian POWs, for failing to protect the lives of Ethiopian POWs at and after capture, for permitting physical abuse of Ethiopian POWs, for depriving Ethiopian POWs of footwear during long walks, for the confiscation of personal property of the Ethiopian POWs, and for failing to provide for the bare necessities of the Ethiopian POWs.
- Partial Award – Central Front – Eritrea’s Claims 2, 4, 6, 7, 8 & 22: Ethiopia is liable, for example, for the actions of its military personnel, including the looting and stripping of buildings in Tserona Town and its cemetery during occupation, for the destruction of several buildings, and for failing to prevent rapes committed by its soldiers.
- Partial Award – Central Front – Ethiopia’s Claim 2: For instance, Eritrea is liable, for example, for the physical abuse of civilians, for allowing the looting and stripping of Zalambessa Town, for the unlawful destruction of 75 percent of the structures of the same town, for failing to prevent the rapes committed by its soldiers, and for not taking precautions to prevent two of its aircraft from dropping cluster bombs near a school and its residential neighborhood.
- Partial Award – Civilians Claims – Eritrea’s Claims 15, 16, 23 & 27-32: Ethiopian nationals who acquired Eritrean nationality through qualifying to participate in the 1993 referendum on Eritrean self-determination acquired dual nationality of both countries. Ethiopia is liable, for example, for erroneously depriving some Ethiopians who were not dual nationals of their Ethiopian nationality, and for permitting local farmers, militia or police to forcibly expel rural people who were mostly Ethiopian from rural areas near the border.
- Partial Award – Civilians Claims – Ethiopia’s Claim 5: Eritrea is liable, for example, for failing to protect Ethiopian in Eritrea who were not in detention from violence by police and the civilian population, for detaining Ethiopians without a legal basis, and for failing to ensure the safe and humane repatriation of departing Ethiopians.
Nine claims remain pending with the Commission.
Citation: Permanent Court of Arbitration, Eritrea-Ethiopia Claims Commission, Partial Awards issued on December 19, 2005. The written decisions are available on the website of the Court at www.pca-cpa.org; see Reuters press release of December 21, 2005, published on www.cnn.com.
Filed in: 2005 International Law Update, Issue 12
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In twenty-eight actions by former World War II slave laborers for Germany and Japan, Ninth Circuit concludes that 1999 California statute providing for cause of action for such claims unconstitutionally interferes with federal government’s foreign affairs powers
German forces abducted one plaintiff, Josef Tibor Deutsch, a Jew of Hungarian origin, in 1944 to work 14-hour days for private corporations, including the large German construction company Hochtief AG. Deutsch’s brother died of injuries suffered at the hands of a Hochtief supervisor.
A 1999 California statute, Cal.Code Civ. Proc. Section 354.6, creates a cause of action for World War II slave laborers. Such claims are timely if filed on or before December 31, 2010. Deutsch based his claims on this statute. Defendants were the allegedly responsible corporations (or their successors). The district court dismissed the action, however, as presenting a non-justiciable “political question.” Deutsch noted his appeal.
The Court consolidated Deutsch’s action with 27 other similar suits by victims of Japanese slave labor during World War II. The plaintiffs in the majority of the other cases were U.S. nationals or from Allied nations whom the Japanese had taken as prisoners of war. The district court dismissed those cases as barred by the Treaty of Peace with Japan [September 8, 1951, 3 U.S.T. 3169, T.I.A.S. No. 2490]. Article 14(b) of the Treaty states that: “Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war …”
The district court dismissed the remaining cases brought by Korean and Chinese nationals on the grounds that the California statute is an unconstitutional intrusion into the foreign affairs powers of the federal government. The U.S. Court of Appeals for the Ninth Circuit affirms, agreeing with the plaintiffs that Section 354.6 exceeded California’s power to engage in foreign affairs.
“While neither the Constitution nor the courts have defined the precise scope of the foreign relations power that is denied to the states, it is clear that matters concerning war are part of the inner core of this power. Of the eleven clauses of the Constitution granting foreign affairs powers to the President and Congress, … seven concern preparing for war, declaring war, waging war, or settling war. Most of the Constitution’s express limitations on states’ foreign affairs powers also concern war.”
“Even those foreign affairs powers in the Constitution that do not expressly concern war and its resolution may be understood, in part, as a design to prevent war. Indeed, … supporters of the new Constitution believed that disunity in international affairs risked unnecessary war. See, e.g., The Federalist Papers, No. 3 at 13 … Matters related to war are for the federal government alone to address.”
“Among the six district court decisions we review here, the only one to reach the foreign affairs challenge to section 354.6 held that the provision was unconstitutional under that doctrine for six reasons: … Although we agree that section 354.6 violates the foreign affairs power, we base our holding on a narrower consideration. We hold that section 354.6 is impermissible because it intrudes on the federal government’s exclusive power to make and resolve war, including the procedure for resolving war claims.” [Slip op. 30-33]
In Germany’s case, Washington has already exercised its own exclusive authority to end the war and to settle claims related to it. Beginning with the 1945 agreements at Yalta and Potsdam, the World War II treaties did not provide for a private right of action for injured individuals. With the Foundation Agreement of July 17, 2000, victims of German slave labor can receive compensation of up to $7,500. Though such an amount is less than adequate, it does constitute the political resolution of such claims.
Finally, the Treaty of Peace of 1951 with Japan has no private right of action provision. Without such authorization, U.S. states are powerless to alter the federal government’s resolution of disputes resulting from the war with Japan. Section 354.6 is, therefore, unconstitutional. All the remaining claims are time-barred.
Citation: Deutsch v. Turner Corp., 317 F.3d 1005 (9th Cir. 2003).
Filed in: 2003 International Law Update, Issue 2
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Based on law of nations, International Court of Justice rules that Congolese Minister of Foreign Affairs was immune from criminal prosecution for war crimes and crimes against humanity in Belgian courts
In April 2000, a Belgian investigating judge issued an “international arrest warrant in absentia” against Mr. Abdulaye Yerodia, the Minister for Foreign Affairs in office of the Democratic Republic of the Congo (“the Congo”).
It charged Mr. Yerodia as having been a perpetrator or co perpetrator of offenses constituting grave breaches of the Geneva Conventions of 1949 and of the Additional Protocols thereto, and with crimes against humanity. Interpol circulated the arrest warrant internationally.
The extraterritorial crimes with which Mr. Yerodia was charged were punishable in Belgium under the Law of 16 June 1993 “concerning the Punishment of Grave Breaches of the International Geneva Conventions of 12 August 1949 [6 U.S.T 3114, 3217, 3316, 3516] and of Protocols I and II of 8 June 1977 Additional Thereto,” as amended by the Law of 19 February 1999 “concerning the Punishment of Serious Violations of International Humanitarian Law” (the “Belgian Law”). Five months later, the Congo began proceedings in the International Court of Justice to challenge the issuance and circulation of that warrant. Soon afterwards, the Minister left his post.
The pleadings alleged that Belgium (under the general rubric of “universal jurisdiction”) was improperly trying to extend its authority to the territory of another sovereign state, that it had violated the principle of the sovereign equality among all Members of the United Nations set forth in Article 2, para. 1 of the Charter, and finally that it had infringed the diplomatic immunity of a Minister of a foreign state recognized in Article 41 of the Vienna Convention of 18 April 1961 on Diplomatic Relations, 23 U.S.T. 3227, T.I.A.S. 7502, 500 U.N.T.S. 95.
Since the Congo devoted its arguments solely to the immunity issue, the ICJ takes up that question. None of the conventions dealing with immunities specifically addresses those that Ministers for Foreign Affairs may enjoy, hence the Court has to decide the question as a matter of customary international law.
The law of nations accords immunities to Ministers of Foreign Affairs not for their personal benefit but to advance the effective performance of their official functions. After analyzing the functions of this office, the Court concludes that, while in office, a Minister for Foreign Affairs enjoys full immunity from criminal jurisdiction and inviolability against any attempt by a foreign nation to exercise power over the Minister that would hinder him in the performance of his or her duties.
The Court also finds no basis to distinguish between acts done in an “official capacity” and those allegedly done in a “private capacity” or, for that matter, between actions taken before, and those taken during, the Minister’s tenure of office. The mere risk of foreign arrest could deter the Minister from traveling internationally when required to do so to carry out his official functions.
The Court rejects Belgium’s contention that there is an exception to the immunity for war crimes or crimes against humanity. State practice, national legislation and higher national court rulings fail to support the existence of the exception claimed by Belgium. Likewise, neither the Nuremberg nor the Tokyo Charters of 1945 nor those setting up international criminal tribunals for the former Yugoslavia and for Rwanda recognize any such exception in regard to prosecution in the national courts. The rulings of these tribunals also fail to buttress such an exception. Nor will the Statute of the International Criminal Court [Ed.-- to be set up in 2003] recognize it.
The Court stresses that the lack of an exception does not imply an impunity from prosecution, much less exoneration from all heinous crimes. For example, the courts of his or her own country may put a Minister to trial. Or country A may waive its Minister’s immunity, thus allowing trial in country B. Finally, if an international criminal court does have jurisdiction, a Minister may be subject to criminal proceedings in that tribunal.
Finally, the Court concludes that the issuance of the Belgian warrant breached that nation’s obligation toward the Congo by failing to respect that Minister’s immunity from criminal prosecution under international law. Belgium admits that it was trying to establish a legal basis either for the Minister’s arrest in Belgium or for his arrest elsewhere and extradition to Belgium for trial.
By 15 votes to 1, the Court sees no merit in the objections of the Kingdom of Belgium with respect to jurisdiction, mootness and admissibility. By 13 votes to 3, the Court “[f]inds that the issue against Mr. Abdulaye Yerodia Ndombasi of the arrest warrant of 11 April 2000, and its international circulation, constituted violations of a legal obligation of the Kingdom of Belgium towards the Democratic Republic of the Congo, in that they failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Democratic Republic of the Congo enjoyed under international law.”
As to remedy, the Court, by 10 votes to 6, “[f]inds that the Kingdom of Belgium must, by means of its own choosing, cancel the arrest warrant of 11 April 2000 and so inform the authorities to whom that warrant was circulated.”
Citation: International Court of Justice (ICJ), Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium); Press Release 2002/04bis, 14 February 2002.
Filed in: 2002 International Law Update, Issue 4
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Second Circuit grants unconditional, voluntary dismissal of case against German banks over their role in supporting slave labor during World War II so that compensation funds can begin payments
Several Holocaust victims and their heirs filed a U.S. lawsuit in 1998 — 1999 against German and Austrian banks seeking compensation. The plaintiffs settled with the Austrian defendants. The plaintiffs later sought voluntary dismissal of their case so that compensation payments from a particular fund of $4.5 billion could begin. The U.S. government filed a Statement of Interest, declaring that the foreign policy interests of the U.S. require that the organizations set up to furnishing compensation for Holocaust victims should resolve claims like this.
On July 17, 2000, Germany and the U.S. signed an agreement for the “Remembrance, Responsibility and the Future Foundation.” This is a joint organization of the German government and German companies to compensate former forced laborers or those who were harmed by German companies during the Nazi dictatorship (see Sovereign Immunity case, above). The German government and German companies have committed approximately $4.5 billion to the compensation fund. The Agreement, however, does not allow compensation payments unless the U.S. courts have dismissed all Holocaust litigation against German companies thus bringing about “legal peace” (Rechtssicherheit). The German Bundestag (Lower House of Germany’s Parliament) has to determine that “legal peace” has come to pass before it will allow the payment of funds. Accordingly, the plaintiffs (except one) moved for voluntary dismissal of their case.
The district court refused to dismiss. It expressed concerns for some plaintiffs who had settled their claims with Austrian banks in exchange for an assignment of the Austrian banks’ claims against German banks for misappropriation of bank assets. On May 11, 2001, the district court issued a written order that would grant only a conditional dismissal.
Both plaintiffs and defendants sought a writ of mandamus from the appellate court to have the court unconditionally dismiss the case. The U.S. Court of Appeals for the Second Circuit, in a per curiam opinion, issues the writ, remanding the case to the district court with directions to delete the conditions from the dismissal order. With this decision, a compensation fund for slave laborers can finally begin paying out $4.5 billion.
The Second Circuit succinctly explains its reasoning. First, the district court cannot require the legislature of a foreign sovereign such as the Bundestag to make a finding of “legal peace” before its summer recess. Second, the district court had demanded the fulfillment of certain assumptions in light of U.S. law showing that the plaintiffs will actually receive compensation. According to the Foundation’s rules, however, German law governs eligibility for compensation. The district court’s orders seemingly attempt to require Germany to change its laws. The refusal of a foreign legislature to enact or change a law, however, cannot be the basis for vacating a final judgment.
[Editorial Note: The number of entitled World War II slave laborers is estimated at one million persons, most of them in Central and Eastern Europe. Many of these, however, are elderly, and as stated during the above litigation, are dying at an estimated rate of 1,000 a day.]
Citation: In re: Austrian and German Holocaust Litigation, Duveen v. United States District Court for the Southern District of New York, 250 F.3d 156 (2d Cir. 2001). [See also The Washington Post, May 18, 2001, page A20; U.S. Department of State press statements, May 10 & May 18, 2001; The Week in Germany, May 25 & June 1, 2001.]
Filed in: 2001 International Law Update, Issue6
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After longest trial in its history, Hague War Crimes Tribunal has convicted and sentenced five Bosnian Croats for their role in killing 100 Bosnian Muslim civilians in April 1993
On January 14, 2000, the International Criminal Tribunal for the Former Yugoslavia in The Hague convicted and sentenced five Bosnian Croats for crimes against humanity. The convictions were for taking part in the massacre of 100 Muslim civilians, including 33 women and children, on April 16, 1993 in the Bosnian village of Ahmici in central Bosnia.
Judge Antonio Cassese handed down the guilty verdicts. At the sentencing, he declared that Ahmici “must be added to the long list of previously unknown hamlets and towns that recall abhorrent misdeeds and make all of us shudder with horror and shame.”
After a fifteen-month trial, the Tribunal gave the heaviest sentence of twenty-five years to Vladimir Santic, the leader of a Bosnian Croat militia in an area dubbed the Jokers. Drago Jusipovic, one of Santic’s lieutenants, received a sentence of fifteen years. The killings were allegedly carried out under their general supervision.
The Tribunal also found that the Kupreskic brothers, Zoran and Mirjan, and their cousin Vlatko Kupreskic took part in the killings by machine-gunning victims and by burning houses and mosques on the day in question. The Tribunal sentenced Zoran to ten years in prison and Mirjan to eight. Vlatko received a six-year sentence.
The Tribunal acquitted and released Dragan Papic for lack of evidence. During its longest trial so far, the Tribunal heard 158 witnesses and wrote a judgment 340 pages in length. Counsel for the convicted defendants declared that they intended to appeal.
Citation: International Criminal Tribunal for the Former Yugoslavia, Kupreskic & Others Case, Trial Chamber II – Judges Cassese (Presiding), May and Mumba. [The judgment, along with related information such as transcripts and a press release, is available on the Tribunal's website at www.un.org/icty.] The Washington Post, January 15, 2000, Section A, page 19 under byline of Mr. Charles Trueheart.
Filed in: 2000 International Law Update, Issue 1
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U.S. Department of State issues preliminary report on Nazi theft of gold and other assets
On May 7, 1997, the U.S. Department of State issued a “Preliminary Study on U.S. and Allied Efforts to Recover and Restore Gold and Other Assets Stolen or Hidden by Germany During World War II.” The study was prepared by William Slany, Historian, Dept. of State, and coordinated by Stuart E. Eizenstat, Under Secretary of Commerce for International Trade.
The study attempts to document what it calls “one of the greatest thefts by a government in history: the confiscation by Nazi Germany of an estimated $580 million of central bank gold — around $5.6 billion in today’s values — along with indeterminate amounts of other assets during World War II.” These assets were stolen from governments and civilians in the countries occupied by Germany. The study describes U.S. and Allied efforts to recover those assets for the reconstruction of Europe after the war. Switzerland figures prominently as one of the countries that accepted the stolen assets and thereby helped sustain the Nazi dictatorship.
As part of the study, 15 million pages of documents were reviewed. Between 800,000 and 1 million pages of documents were declassified and made available to researchers. Among the conclusions of the study are:
- The massive and systematic plundering of gold and other assets from conquered nations was essential to the financing of the German war machine.
- Neutral countries such as Argentina, Portugal, Spain, Sweden, Switzerland and Turkey continued trade with Nazi Germany, which supported and prolonged World War II.
Citation: The study is available via the www homepage of the International Trade Administration http://www.ita.doc.gov/media, from the press office of the U.S. Department of State, Phone: (202) 647-6925, or at the Department’s www site http://www.state.gov.
Filed in: 1997 International Law Update, Issue 6
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U.S. enacts law to enlarge U.S. jurisdiction over punishment of war crimes
On August 21, 1996, President Clinton signed into law the “War Crimes Act of 1996.” The law amends Title 18 of the U.S. Code, and carries out the obligations under Geneva Conventions to provide criminal penalties for certain war crimes.
The law provides that American courts may fine and/or imprison anyone who, inside or outside the U.S., violates the Geneva Conventions under any of the specified circumstances. An American court may impose the death penalty if the offense resulted in the death of the victim.
The law broadens U.S. criminal jurisdiction over war crimes, permitting prosecution in the U.S. if the war criminals are found in, or extradited to, the U.S. Upon signing the bill, President Clinton announced plans to further expand jurisdiction over these offenses, encompassing war crimes committed by any person who comes within U.S. jurisdiction, as well as other war crimes not covered by the Geneva Conventions.
[Editors' Note: The international conventions relating to the laws of warfare signed at Geneva on August 12, 1949 are the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. The additional protocols are the Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, 16 I.L.M. 1391; Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non International Armed Conflicts, 16 I.L.M. 1442 (1977)].
Citation: War Crimes Act of 1996, Pub.L. 104-192 (H.R. 3680); Statement of President Clinton on Signing War Crimes Act of 1996, The White House, Office of the Press Secretary (August 21, 1996).
Filed in: 1996 International Law Update, Issue 11
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Appeals Chamber of International Criminal Tribunal for Former Yugoslavia finds no merit in objections by Duško Tadi_ to jurisdiction of Tribunal over his alleged crimes
In August of 1995, the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia rejected the challenges of Dusko Tadi_ to the jurisdiction of the Tribunal. Tadi_ then sought review by the Appeals Chamber. There he argued (1) that the U.N. Security Council lacked power to establish such a Tribunal; (2) that the Tribunal lacked primacy over competent domestic courts, and (3) that the Tribunal has subject matter jurisdiction only over the prosecution of crimes committed in the course of an armed conflict.
On October 2, 1995, the Appeals Chamber rejected all of these objections. On issue (1), it concluded that it has power to determine the validity of its own establishment. This does not involve a political question or an otherwise nonjusticiable matter.
In the Chamber’s view on issue (2), the Security Council had validly set up the tribunal. Though the Council is not a judicial body and Article 41 of the UNC does not expressly mention the setting up of judicial organs, the Article does empower the Council to maintain international peace and security by “measures not involving the use of force.” Moreover, the Tribunal qualifies as one “established by law” under Article 14(1) of the International Covenant on Civil and Political Rights. This applies to “a body which, though not a Parliament, has a limited power to take binding decisions. In our view, one such body is the Security council when, acting under Chapter VII of the [UNC], it makes decisions binding by virtue of Article 25 of the Charter.” [22]
Nor does the Tribunal have to yield jurisdiction to competent domestic courts. While it is not disputed that the courts of Bosnia-Herzegovina would have prosecutorial jurisdiction, the Chamber notes that German authorities had done only investigative work on the Tadi_ case. Additionally, the crimes charged are of universal concern, in the Chamber’s view, and Tadi_’s nation has surrendered enough sovereignty by its membership in the U.N. to eliminate any primary right Tadi_ might otherwise have to trial under the laws, and in the courts, of his own nation.
As to issue (3), the Chamber concludes that the Tribunal has subject matter jurisdiction over violations of international norms whether committed in an internal or in an international armed conflict. Finally, though the prosecutor has not charged Tadi_ with violating any particular international agreement, the Tribunal has the authority to apply customary international law as well as any binding treaties that might have been operative at the time Tadi_ carried out his alleged offenses.
Citation: Prosecutor v. Duško Tadi_, 35 Int. Leg. Mat. 35-74 (1996).
Filed in: 1996 International Law Update, Issue 6