UN SG proceeding with Sri Lanka rights panel

[JURIST] UN Secretary-General Ban Ki-moon said on 16 March that he would not delay his plan to set up a UN panel to investigate allegations of human rights violations during the Sri Lankan civil war. Ban made the statement during a press conference in response to a question about a letter from the Non-Aligned Movement (NAM) to the Secretary-General last week. Ban responded that the letter, which challenged the UN’s authority to form the panel, was a misunderstanding, and he made clear his intention to form the panel:

This panel will report to me directly and not to any other body. It is well within my power, I believe. I am convinced that it is well within my power as Secretary-General of the United Nations to ask such a body to furnish me with their advice of this nature. This does not in any way infringe on the sovereignty of Sri Lanka.

Ban added that there would be, “no delay in the establishment of the panel.”

Earlier this month, Sri Lankan President Mahinda Rajapaksa rejected Ban’s plan to appoint a panel of experts to look into alleged rights abuses in the island nation’s civil war, saying it “is totally uncalled for and unwarranted.” Just prior to Rajapaksa’s statement, UN High Commissioner for Human Rights Navi Pillay criticized the state of human rights in Sri Lanka, while presenting her annual report to the 13th Session of the Human Rights Council. Sri Lanka has faced numerous allegations of human rights violations originating from incidents that took place during the final months of the civil war by both the government and the rebel Liberation Tigers of Tamil Eelam (LTTE).

Venezuela asks for details of charges against ETA suspects

Venezuela has asked authorities in Spain to detail their accusations against an alleged ETA operative accused of helping the Basque separatist group arrange explosives training with Colombian rebels in Venezuela.

Venezuela asked Interpol in Madrid for details of the indictment naming Arturo Cubillas Fontan, who is among a group of ETA suspects wanted by Spanish authorities, Venezuelan Justice Minister Tareck El Aissami said Thursday 18 March.

El Aissami expressed willingness to investigate but also skepticism about possible political motives behind the case. He echoed President Hugo Chavez in dismissing as “pure lies” the claims by a Spanish judge that Venezuela has facilitated collaboration between ETA and Colombian rebels.

El Aissami mentioned the case as Venezuela turned over 18 Spanish citizens imprisoned on drug convictions to Spanish authorities to finish their sentences in their homeland. The prisoners boarded a Spanish air force jet at Caracas’ airport along with two children belonging to one of the prisoners.

The handover seemed aimed at demonstrating Venezuela’s willingness to cooperate amid tensions over the Spanish judge’s order for the arrest of six alleged members of ETA and six members of the FARC – some of whom are thought to be in Venezuela.

Federal appeals court will not rehear Ashcroft lawsuit

A federal appellate court said Thursday 18 March it would not reconsider its ruling that former Attorney General John Ashcroft can be held personally responsible for misuse of the material witness statute after the Sept. 11 attacks. The ruling came after a majority of the full 9th US Circuit Court of Appeals voted to deny Ashcroft’s request amid bitter dissent by eight of its judges.

Abdullah al-Kidd, a US citizen, sued Ashcroft and other federal officials after he was arrested and jailed as a material witness in a terrorism case against another man. He said his arrest and detention were just a ruse to give the government time to investigate him for any potential wrongdoing.

Al-Kidd was on his way to Saudi Arabia to study when he was unlawfully detained and arrested in Washington’s Dulles Airport on March 16, 2003 as a material witness in the trial of Sami Omar Al-Hussayen. For 16 days, al-Kidd was held in heightened-security units of various jails and shackled whenever moved. He was eventually released under onerous conditions that included confining his travel to four states, surrendering his passport and reporting to probation officers. Al-Kidd was held for more than 13 months under these conditions without ever being charged with any crime or asked to testify.

At the time of his arrest, al-Kidd had already shown that he was not a flight risk and would cooperate as a witness. He had voluntarily met with the FBI repeatedly, never missing a scheduled appointment. For six months prior to his arrest, al-Kidd had not been contacted by the FBI, and he had never been told that he was prohibited from traveling abroad to pursue his studies.

Thursday’s ruling affirms the court’s September 2009 ruling that found that the material witness law may only be used when an individual is genuinely sought as a witness and where there is a real risk of flight. The court ruled that the law does not allow an end-run around the constitutional requirements for arresting someone suspected of a crime.

The dissenting judges, led by Diarmuid O’Scannlain, said ruling was contrary to logic and law, and would frighten people from being willing to serve as attorney general in the future.

“Because of the gratuitous damage this decision inflicts upon orderly federal law enforcement, I must respectfully dissent from our refusal to rehear this case en banc,” O’Scannlain wrote in his dissent, joined by Chief Judge Alex Kozinski and Judges Andrew Kleinfeld, Ronald Gould, Richard Tallman, Consuelo Callahan, Carlos Bea and Sandra Ikuta.

Ashcroft’s request for a rehearing came after a three-judge panel ruled Sept. 4 that he can be sued by people who claim he created an illegal policy of using the material witness statute to arrest suspects whom he wished to preventively detain and investigate.

In that ruling, Judge Milan D. Smith Jr. had said the practice was “repugnant to the Constitution.”

Prior to 9/11, the federal material witness law was used sparingly – especially with U.S. citizens – to ensure that witnesses would be available to testify in criminal cases. Arrests under the statute took place in rare cases to secure testimony where there was hard evidence that an individual had material information but would not testify voluntarily. After 9/11, Ashcroft retooled the law into an investigative detention statute, allowing the government to arrest and detain individuals for whom the government lacked probable cause to charge with criminal violations.

Ashcroft had asked the panel to dismiss the lawsuit, saying he was entitled to absolute immunity because his position at the Department of Justice was prosecutorial. After the ruling, he asked for the full 9th Circuit court to reconsider the matter, but a majority of the judges voted against his request.

That sparked strong words from O’Scannlain, who said the panel’s decision essentially declared the 200-year-old material witness statute unconstitutional and “distorts the bedrock Fourth Amendment principle that an official’s subjective reasons for making an arrest are constitutionally irrelevant.”

“One shudders at the thought that this decision might deter the incumbent and future Attorneys General from exercising the full range of their lawful authority to protect the security of the United States,” O’Scannlain wrote.

Smith responded to the judges’ dissent, saying his earlier ruling did not declare the material witness statute unconstitutional. Instead, Smith said, the panel found that the statute does not authorize arrests like the one used to detain al-Kidd.

Al-Kidd’s claim is not based on allegations that Ashcroft knew or should have known what his agents were doing, Smith wrote — his claim is based on allegations that Ashcroft himself committed misconduct by creating a national policy that systematically authorized the misuse of the statute.

Smith also rebuffed the dissenting judges’ concerns that future attorneys general would be too scared to serve.

“The truth is that there are legions of highly qualified attorneys who would gladly abandon almost any other position for the opportunity to serve as attorney general of the United States,” Smith wrote. “But it is critically important that whoever serves in that position be dedicated to the rule of law, and to upholding and defending the constitution of the United States.

Al-Kidd’s attorney, Lee Gelernt with the American Civil Liberties Union, said they were “extremely pleased and hope that we can now resolve this case expeditiously.”

“In this country, we don’t believe in arresting and imprisoning people who haven’t been charged with any crime,” said ACLU Immigrants’ Rights Project Deputy Director Lee Gelernt. “Former Attorney General Ashcroft deliberately distorted the federal material witness law to allow the detention of innocent people. As the primary architect and overseer of this policy that so clearly circumvented the Constitution, he should be held personally liable.”

Charles Miller, spokesman for the U.S. Department of Justice, said the department was reviewing the court’s decision.

The Department of Justice may now appeal to the U.S. Supreme Court or allow the lawsuit to revert back to Boise’s U.S. District Court. If the case goes back to the lower court, the government will likely have to comply with al-Kidd’s discovery requests, releasing documents and files that it has previously maintained were highly confidential and that could pose a threat to national security.

Azerbaijan detains extremists plotting attacks

Azerbaijani authorities detained eight members of a radical Islamic group who had been preparing to carry out major attacks in the ex-Soviet republic.

Citing law-enforcement sources, the Azeri Press Agency, or APA, and Interfax-Azerbaijan reported Wednesday 17 March that the group, which included citizens of the volatile Russian regions of Chechnya and Dagestan, were detained while planning “mass terrorist attacks.”

APA reported one member of the radical Islamic group was detained on 16 March while trying to smuggle weapons into the country from neighboring Georgia. There was no immediate confirmation from Azerbaijani officials after reports.

Azerbaijan has warned of a rising threat from Islamic militants. In recent years the country has jailed dozens of alleged extremists, including two Lebanese and four Azerbaijani citizens convicted last year of plotting terrorist attacks on the Israeli and U.S. embassies in Baku.

Critics, however, allege that Azerbaijani authorities have also used the specter of extremism as a cover for persecuting political opponents

GAO: Whole Body Scanners Raise Questions About Effectiveness

Placing whole body scanners in airports around the world will cost U.S. taxpayers roughly $3 billion over eight years.

A U.S. Government Accountability Office (GAO) written testimony to the House Homeland Security Committee states that the Transportation Security Administration (TSA) says each whole body image machine would cost $170,000 and requires 3 people to operate.

The cost of covering 60 percent of all security checkpoints at the busiest commercial airports is about $300 million with an addition 3,550 TSA personnel.

TSA spokeswoman Kristin Lee said the agency has conducted a cost analysis and determined that scanners are better than existing alternatives, including metal detectors and machines that check swabs of people’s hands or belongings for traces of explosives. The TSA said the machines boost the odds that security officials will detect anomalies in a fraction of the time and inconvenience that pat-down searches take.

Beyond the issue of costs, the GAO report also raised questions regarding the effectiveness of whole body imaging technology in detecting low density materials such as powder or gel explosives as well as items that may be designed to allude detection.

“While officials said [the scanners] performed as well as physical pat downs in operational tests, it remains unclear whether the AIT would have detected the weapon used in the December 2009 incident,” the Government Accountability Office said.

Swiss parliament wants opt-out of 1267 sanctions regime

Earlier this month the Swiss Parliament’s foreign-relations committee approved a proposal to create a mechanism under which the Swiss government would have to stop enforcing international financial sanctions against people on the U.N. 1267 terrorist list in circumstances where little had been proved against them.

The Parliament calls on the Federal Council to communicate to the Security Council that Switzerland won’t apply the sanctions anymore to suspect who

  • hasn’t been brought to justice after three years of being listed,
  • was not in a position to appeal his/her listing in front of a judicial body
  • and to whom no new elements ‘a charge’ haven’t been made public since the date of listing.

    “The Federal Council “should make clear that it is not possible for a democratic country based on the rule of law that sanctions imposed by the Sanctions Committee, without any due process guarantee, result in the suspension, for years and without any democratic legitimacy,  the most basic human rights that are proclaimed and propagated by the United Nations.

    The House of Representatives approved the motion despite opposition from Foreign Minister Micheline Calmy-Rey. She argued sanctions were binding for all UN members, adding that the UN had introduced reforms last year for the delisting procedures.

HPCR Manual on International Law Applicable to Air and Missile Warfare

Recent hostilities (in Kosovo, Afghanistan, Iraq, etc.) have amply demonstrated that there are currently bones of contention regarding the scope and content of the rules regulating the use of aircraft and missiles in warfare. Although, since the drafting of the 1923 Rules of Air Warfare, a number of international treaties have been adopted in response to developments in modern warfare (in particular, the four 1949 Geneva Conventions for the Protection of War Victims and the two Additional Protocols of 1977, as well as diverse conventions regarding cultural property, biological weapons, chemical weapons, etc.), it must be taken into account that (i) these instruments, although containing rules relevant to air and missile warfare, do not address a number of important aspects of air and missile operations; and (ii) while the Geneva Conventions are universal in their scope of application, other instruments (especially AP/I) are not binding on all States: non-Contracting States (primarily the United States) explicitly contest some of their rules. It is for that reason that the Commentary on the HPCR Manual has endeavoured to identify US practices and positions which are consistent with the rules of AP/I.

It is important to bear in mind that the current daunting challenges to the law of air and missile warfare are not derived merely from the rapid pace of development of new technologies. There is also an urgent need to confront new methods of warfare (however gruesome), introduced by international terrorism. At least since 11 September 2001, the law of armed conflict has been forced to consider, e.g., the use of a hijacked civilian airliner as a weapon (cf. Rule 63 (b) of this Manual).

The HPCR Manual must not be confused with a draft treaty, prepared as the ground-work for a future diplomatic conference. The goal is  rather to present a methodical restatement of existing international law on air and missile warfare, based on the general practice of States  accepted as law (opinio juris) and treaties in force. No attempt  has been made to be innovative or to come up with a lex ferenda  (however desirable this may appear to be): the sole aim has been to  systematically capture in the text the lex lata as it is. Since  the authors of the HPCR Manual have no power to legislate, it is  freely acknowledged that the emerging restatement must be evaluated not  on the basis of logic, expediency or policy considerations. The only  test is whether the text of the HPCR Manual is an accurate  mirror-image of existing international law. For its part, existing  international law is presented with no attempt to conceal any blemishes  or inadequacies.

Read the manual here; commentary here.