Foreign Courts

The Role of the European Convention on Human Rights in the Wake of Kiobel

Kiobel v. Royal Dutch Petroleum Co. has generated concerns that a governance gap will emerge for corporations that propagate human rights violations abroad. In Kiobel, the U.S. Supreme Court barred most “case[s] seeking relief for violations of the law of nations occurring outside the United States.”[1] The U.S. had previously offered victims straightforward access to justice in its courts.[2] As American courts grow less open to extraterritorial claims, recognition of the global context gains importance. The current climate presents opportunities for other judicial systems to step forward. Specifically, Kiobel has provided the European Court of Human Rights with the occasion to interpret the European Convention on Human Rights [3] to require the right to an extraterritorial forum and counterbalance the shift in the U.S. that Kiobel represents.

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[1] Kiobel v Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669 (2013).

[2] See 28 U.S.C. § 1350 (amended 2012) and its interpretation in, for example, Abdullahi v. Pfizer, Inc., 562 F.3d 163, 172–74 (2d Cir. 2009); Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 128 (E.D.N.Y. 2000).

[3] European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, [hereinafter ECHR] (entered into force Sept. 3, 1953) (as amended by Protocols Nos. 11 and 14, which entered into force on Nov. 1, 1998 and June 1, 2010, respectively).

The Countermajoritarian Opportunity?: Courts, Rights, and the Accommodation of Difference

Filed Under: Op-Ed

Over the past two decades, and in several regions of the world, there has been an expansion of judicial power. In this same time period, there has also been a growing interest in, and rather heated debate concerning, the relationship between democracy and nationalism. Scholars in all regions of the world, not least of all Europe, are searching for institutional arrangements that might effectively, and democratically, help polities best accommodate difference.

This article brings together separate bodies of literature on these two global developments: the expansion of judicial power, and the challenges of accommodating difference in democracies. The article proceeds in four steps. The first section presents claims from an important body of literature concerning the U.S. Supreme Court and American democracy and suggests why this literature is useful for understanding current trends in Europe. The second section shifts focus and discusses several “toleration regimes”—or ways of organizing difference—in the world, and their role in diverse societies. The third section then argues that there is a direct relationship between these specific toleration types, and the strength of judicial activism. Drawing these arguments together, the final section concludes that in Europe, for better or for worse, several activist constitutional courts are shaping democracy with adjudication, by moving countries toward specific toleration regimes and away from others.

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Spanish AG: No Torture Investigation of US Officials

Filed Under: Digest

Spanish Attorney General Candido Conde-Pumpido has declined to open an investigation in Spain’s National Court into whether six top Bush Administration officials sanctioned torture at Guantanamo Bay. While Spain’s courts do have jurisdiction in the case of war crimes and torture under the doctrine of “universal justice.” Conde-Pumpido declared that the most proper forum for such an investigation would be in United States’ court system, not Spain’s.

The “Bush Six”, as they have come to known, have been accused of using legal opinions to advise the Bush Administration that it would be acceptable to ignore the Geneva Conventions and narrowly defining which interrogation techniques constituted torture. They are named in a complaint filed by several human rights lawyers.

Spanish Judge Baltasar Garzon, who is presiding over the case, is most well-known for indicting Chilean ruler Augusto Pinochet over the objections of prosecutors. However, Conde-Pumpido is Spain’s top law-enforcement official and would have the final say. A formal announcement is expected April 17.

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Spanish Prosecutors Try to Shelve Israel Case

Filed Under: Digest

In January, a Spanish judge agreed to pursue a complaint against military officials in Israel, including former defense minister Benjamin Ben-Eliezer. The complaint arose from a 2002 air attack on Gaza City that killed 15 Palestinians, mainly children, and wounded 150. The public prosecutors have now asked that judge to shelve that complaint; the judge must issue a ruling on whether or not he will honor that request.

Spain claims universal jurisdiction over genocide, terrorism, and crimes against humanity, no matter where the crime occurs. However, this jurisdiction only applies if the crime is not the subject of a legal proceeding in the country in which it occurred. Spanish public prosecutors justified the decision to drop the case based on information that Israel had initiated its own proceedings. However, the case could be reopened if contradicting evidence about Israeli action emerges.

Israeli’s leaders criticized Spain’s decision to prosecute as politically motivated from the beginning. The decision to charge came after the most recent Israeli offensive in Gaza early this year that killed 1,300 Palestinians. Spain has recognized the political fallout of the legal action and Spanish officials have announced an intention to alter the “universal justice” rule to avoid similar political controversy in the future.

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Peru's Fujimori Claims Innocence

Filed Under: Digest

On Wednesday, former Peruvian President Alberto Fujimori defended his innocence with regards to human rights abuse claims in a Rio De Janeiro court. Taking the stand in his own defense, Fujimori vehemently denied responsibility for the murders of 25 people and the kidnappings of 2 others.

These charges stem from alleged actions taken by the Peruvian government under Fujimori in response to a series of bloody guerrilla attacks in Peru in the early 1990s. Defending his policies and actions, Fujimori declared, “I did nothing wrong . . . The Peru that I inherited was a disaster. It was a Peru that had to be rescued.”

Concerns over Fujimori’s health have lengthened the trial, now in its fifteenth month. Fujimori is believed to be the world’s first democratically elected former president to be tried for human rights violations in his own country.

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Joseph Mpambara Convicted in the Hague

Filed Under: Digest

Last week, the Hague District Court ruled on the case of Joseph Mpambara, a Rwandan Hutu allegedly associated with the 1994 Rwandan genocide. The court found Mpambara guilty for the deaths of two Tutsi mothers and their children as well as for the torture of a German doctor, his Tutsi wife and their 2 month-old son. Mpambara was acquitted of charges that he was involved in the massacre of hundreds of Tutsis who had fled to a church, for the rape of four women, and for the subsequent murder of one of them.

The court found sufficient evidence that Mpambara had called for two Tutsi women and at least four of their children to be dragged from an ambulance and brutally slaughtered as they were fleeing violence. However, the court was not able to find sufficient evidence in the testimony of five witnesses that linked Mpambara to the massacre of hundreds of Tutsis seeking refuge in a Seventh-Day Adventist church in April 1994. Only one witness linked Mpambara to the rapes, which is insufficient under Dutch law.

Mpambara was not convicted of war crimes because the court reasoned that the killings of the Tutsis and the torture of the German-Tutsi family was not part of the war between Rwanda and Tutsi rebels. The war, which took place between April and July 1994, led to the killing of nearly 500,000 people by Hutu militias.

Mpambara had sought asylum in the Netherlands, giving rise to the criminal investigation against him. Dutch law holds residents liable for war crimes and torture committed in other countries. Mpambara was sentenced to 20 years, but the court stated that this sentence did not “do justice to the seriousness of [his] crimes.”

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