West Law Report

US ruling may delay compensation for Marcos victims

Posted in Ferdinand Marcos by mrkooenglish on June 13, 2008

By OLIVER TEVES Associated Press Writer

MANILA, Philippines (AP) – Lawyers for Philippine victims of human rights abuses under late dictator Ferdinand Marcos said Friday they regretted a U.S. Supreme Court decision overturning lower court rulings that gave the victims the right to money stashed by Marcos in the United States.

“We are disappointed that there will be another delay in distribution of the money to the Filipino victims,” their American lawyer, Robert Swift, said Friday.

A group of more than 9,500 victims is claiming $35 million in a Marcos shell company as part of a $2 billion judgment by a Hawaii court in 1995 against the Marcos estate as compensation for summary executions, disappearances and torture during his 20-year rule. With interest, the award has almost doubled, but no payment has been made to any plaintiffs.

The victims, all opponents of Marcos’ rule, and the Philippine government are fighting over $2 million Marcos funneled out of the country in 1972 to Arelma S.A., a Panamanian shell corporation that invested the money with Merrill Lynch, Pierce, Fenner & Smith Inc. in New York. By 2000, it had grown to $35 million.

When Merrill Lynch filed a case with U.S. courts to sort out the dispute, the Philippine government invoked sovereign immunity, the doctrine that bars a legal proceeding against a government without its consent.

Ordinarily, that would have shut down the case in U.S. courts, based on the absent Philippine government being an indispensable party to the case.

But a federal judge in Hawaii decided the matter could proceed and ruled in the victims’ favor, as did the 9th U.S. Circuit Court of Appeals in San Francisco, despite the fact that the Philippine government was not a participant.

In their 7-2 decision Thursday, the Supreme Court justices upheld the doctrine and dismissed the earlier rulings.

The Philippine government, which is claiming the money as part of its efforts to recover vast amounts of money Marcos allegedly stole while president, wants a Philippine court to rule on the matter before U.S. courts decide the issue.

Former Rep. Etta Rosales, one of the victims, said she was “extremely disappointed and sad” over the Supreme Court’s decision.

“The Philippine government succeeded in blocking the release of money to the human rights victims,” she said.

2008-06-13 15:27:36 GMT

Human Rights Plaintiffs May Plead Aiding and Abetting Theory of Liability

Posted in Alien Tort Claims Act, apartheid, Harvard Law Review (case) by mrkooenglish on May 24, 2008

A case summary of Harvard Law Review (May 2008): Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007) (.pdf) (8 pages):


Some of the most interesting and unsettled questions in human rights litigation after Sosa v. Alvarez-Machain concern the status of secondary liability theories, prominently including aiding and abetting. Although several courts have held that aiding and abetting liability is available in Alien Tort Statute (ATS) cases, there is continuing debate over whether it should be available at all, how it should be defined, and what sources of law courts should consult for answers to these questions. Recently, in Khulumani v. Barclay National Bank Ltd. (2007), a Second Circuit panel held that ATS plaintiffs “may plead a theory of aiding and abetting liability,”5 but split on whether courts should look to customary international law or federal common law to determine the availability and scope of this liability theory. Although the three separate opinions in Khulumani indicate the difficulty of the issue, the best reading of the key U.S. cases and of customary international law is that courts should look primarily to federal common law to decide questions about aiding and abetting liability in ATS cases.

The Extraterritorial Constitution and the Interpretive Relevance of International Law

A note in Harvard Law Review (May 2008) (.pdf) (22 pages):

For over a century, courts have wrestled with the question of whether, and to what extent, the Constitution applies outside of the United States. While this question first surged to prominence when the enterprise of American expansionism went to the Supreme Court in the Insular Cases, it has begun to receive renewed attention in recent years as the post-9/11 war on terrorism has brought extraterritoriality issues to the fore. Though the precise legal framework that will govern this question is unclear at the moment, there are indications the Constitution may apply when the result would not be “impracticable and anomalous.” Given the significance of this matter, it is striking that the “impracticable and anomalous” standard “has not yet acquired an academic theorist who would elaborate and defend it as the best interpretation of U.S. constitutionalism.” Indeed, the standard has been criticized for giving courts too much discretion on sensitive matters.

Part I discusses the state of the law following United States v. Verdugo-Urquidez (1990) and the contemporary significance of the question of extraterritorial application of the Constitution. Part II situates the “impracticable and anomalous” standard in historical context, drawing on the nineteenth-century use of international law to identify “powers inherent in sovereignty,” and lays out a justification for the contemporary use of international law in fleshing out the Constitution’s extraterritorial applicability.

Part III argues that in the context of the war on terrorism, it is sensible to look to IHL to guide the inquiry into when certain rights apply extraterritorially. By reference to the differences between battlefield targeting law and detention law — vestiges of the traditional “Hague Law”-“Geneva Law” distinction in IHL — this Note demonstrates how, under the “impracticable and anomalous”standard, Fourth Amendment protections do not apply to house-tohouse counterterrorist sweeps abroad, but Fifth Amendment procedural due process protections apply to war on terrorism detainees held extraterritorially. These examples prove nothing conclusively, but they do illustrate the promise the international law–based approach offers in clarifying this murky area of the law. Finally, Part IV concludes with some discussion — and some potential caveats — regarding the broader usefulness of this framework beyond IHL and the war on terrorism.

Justices’ Conflicts Halt Apartheid Appeal

Posted in Alien Tort Claims Act, apartheid, US Supreme Court by mrkooenglish on May 19, 2008

NY Times reported that recusal of four justices in the case of South Africa Apartheid:

Financial and personal conflicts of interest affecting four Supreme Court justices left the court without a quorum last week and unable to decide whether to hear an appeal brought by more than 50 companies that did business in apartheid-era South Africa.

Is it usual for every such case?

And a brief:

The Alien Tort Statute, sometimes called the Alien Tort Claims Act, lay dormant for most of two centuries until it was rediscovered as a way to seek redress in United States courts for human rights violations committed overseas.

The Supreme Court, while not foreclosing the use of the statute for that purpose, has been notably skeptical. A footnote in a 2004 Supreme Court decision on an unrelated Alien Tort Statute case referred specifically to the South African lawsuit, noting that there was “a strong argument that federal courts should give serious weight to the executive branch’s view of the case’s impact on foreign policy.”

In its ruling last October allowing the case to proceed, the United States Court of Appeals for the Second Circuit, in New York, ordered the district court to consider defenses it had not previously addressed. These include whether the suit presents a “political question” that is beyond the institutional capacity of a federal court to resolve.

“A footnote in a 2004 Supreme Court decision”?

What case is it? Rasul v Bush (2004)? Sosa v Alvarez-Machain (2004)?

Antislavery Courts

Posted in slavery by mrkooenglish on May 17, 2008

Yes, Jenny Martinez is right. In her 92-page paper Antislavery Courts and the Dawn of International Human Rights Law (Yale Law Journal):

Between 1817 and 1871, bilateral treaties between Britain and several other countries (eventually including the United States) led to the establishment of international courts for the suppression of the slave trade. Though all but forgotten today, these antislavery courts were the first international human rights courts. Over the lifespan of the treaties, the courts heard more than 600 cases and freed almost 80,000 slaves found aboard illegal slave trading vessels. During their peak years of operation, the courts heard cases that may have involved as many as one out of every five or six ships involved in the transatlantic slave trade.

Historians have given these international antislavery courts scant attention, and legal scholars have almost completely ignored the courts. Most legal scholars view international courts and international human rights law as largely a post-World War II phenomenon, with the Nuremberg trials of the Nazi war criminals as the seminal moment in the turn to international law as a mechanism for protecting individual rights. But in fact, contrary to the conventional wisdom, the nineteenth-century slavery abolition movement was the first successful international human rights campaign, and international treaties and courts were its central features. The history of the antislavery courts also reveals a more complex interrelationship between state power, moral ideas, and domestic and international legal institutions than many contemporary theories of international law and relations acknowledge. Moreover, the antislavery movement’s use of international law and legal institutions as part of a broader social, political, and military strategy can help us better understand the potential role of international law today in bringing about improvements in human rights.

I really forget.

Philippe Sands: use of torture undermines international law

The barrister answers readers’ question on Times:

Q: What consequences would the use of controlled “legislative” violence in the interrogation of suspects have for our present understanding of Human Rights?

A: In my view, the move to abusive interrogation has deeply undermined the United States’ ability to promote respect for international human rights law. For that reason I deeply regret what has happened and sincerely hope that the United States will take corrective measure and bring its own house in order before inaction compels prosecutors and judges in other jurisdictions feel the need to intervene.

Q: Are European countries that allowed rendition-flights to Guantanamo complicit in violating the absolute prohibition on torture under international law? If so, how can these countries be held accountable?

A: Article 4 of the Convention prohibiting torture, criminalises “an act by any person which constitutes complicity or participation in torture”. What constitutes complicity or participation will turn on the facts of a particular case. Knowing support for rendition flights, or turning a blind eye in circumstances in which torture is seen as likely or reasonably foreseeable, could constitute complicity or participation. Again, it turns on the facts, which are to be established.

Q: Why doesn’t the international committee put more pressure on the US to resolve this situation?

A: History shows that it can take time for countries to call to account abuses of international law. Senator Pinochet was arrested in London eight years after he had left office. But countries do seem to have turned a blind eye. On April 17, 2008 British Prime Minister Gordon Brown stood next to President Bush in the Rose Garden at the White House and said: “The world owes President George Bush a huge debt of gratitude for leading the world in our determination to root out terrorism, and to ensure that there is no safe haven for terrorism and no hiding place for terrorists.” (Read the transcript.)

President Bush has taken responsibility for approving techniques of interrogation that, in my view, have amounted to torture. Just a few weeks earlier President Bush vetoed legislation prohibiting the CIA from using the very same techniques of interrogation I describe in my book. “The bill Congress sent me,” President Bush said, “would take away one of the most valuable tools in the war on terror — the CIA program to detain and question key terrorist leaders and operatives”. (Click here for the transcript.)

Victims of apartheid can sue multinationals

Posted in Alien Tort Claims Act, apartheid by mrkooenglish on May 13, 2008

The Times reported today “Thousands of South Africans who suffered under apartheid won the right yesterday to sue a number of companies, including BP, Citigroup and Ford, for allegedly helping to perpetrate human rights abuses.”

What they have to establish:

Lawyers representing the victims within the three class actions will have to establish that the companies knowingly helped the South African government to perpetrate human rights abuses. That could include, for example, proving that a motor company knew that lorries that it sold in South Africa would be used as armoured vehicles to destroy townships. It could also include establishing that a technology company sold computer equipment and software that would be used to operate a racial identification system.

But why can they sue in US?

The lawsuits were filed in 2002 and were thrown out by a federal judge on the ground that the United States’s courts did not have jurisdiction.

This case is the latest test of an 18th-century law, called the Alien Tort Claims Act. It allows foreigners to use the US legal system to right international law violations. The legislation was drawn up to help foreigners seek redress for issues such as piracy, but it has been used increasingly to sue corporations for their alleged involvement in human rights abuses overseas.

Last year, Yahoo! was sued for its decision to give China access to a political dissident’s e-mail account. The online search engine settled.

Gen. Vang Pao’s Last War

Posted in Anti-terrorism law (US), war crime by mrkooenglish on May 11, 2008

Tim Weiner, a reporter and the writer of C.I.A., Legacy of Ashes, wrote in NY Times Magazine today:

The U.S. government relied on Vang Pao and his Hmong soldiers to battle Communism in the jungles of Laos. Why is the Justice Department now calling him a terrorist?

Philippe Sands: Bush Administration Torture Policies

Posted in Guantánamo, Philippe Sands QC, war crime by mrkooenglish on May 10, 2008

6 May 2008

(8 min)

He speaks before the House of Representatives Committee on the Judiciary Constitution, Civil Rights & Civil Liberties:

Philippe Sands without reservation, states that war crimes were committed by the most senior members of the Bush administration. He is a professor of law at the University College London and recently wrote a book “Torture Team”.

Read his testimony [*.pdf] and his article The Green Light on Vanity Fair (May 2008).

Sands: “Don’t call it a War on Terror”

(4 min)

Philippe Sands: Lawless World

Posted in Guantánamo, International Human Rights Law, Philippe Sands QC by mrkooenglish on May 10, 2008

Mar 2006

(2 hr)

Philippe Sands, a British international lawyer and law professor, discusses the current U.S. and British adminstrations’ international law.

Philippe Sands: Follows the Bush Torture Trail

Posted in Guantánamo, International Human Rights Law, John Yoo, Philippe Sands QC, Torture by mrkooenglish on May 10, 2008

8 May 2008

(10 min)

(10 min)

In the interview:

Attorney Philippe Sands Follows the Bush Administration Torture Trail A new exposé in Vanity Fair by British attorney Philippe Sands reveals new details about how attorney John Yoo and other high-ranking administration lawyers helped design and implement the interrogation policies seen at Guantanamo, Abu Ghraib and secret CIA prisons. According to Vanity Fair, then-White House counsel Alberto Gonzales and other top officials personally visited Guantanamo in 2002, discussed interrogation techniques and witnessed interrogations. Sands joins us in our firehouse studio.

Rush transcript in Decomcracynow.org

Ask Philippe Sands

Posted in Guantánamo, International Human Rights Law, Philippe Sands QC, Torture by mrkooenglish on May 10, 2008

Philippe Sands, the writer of Lawless World, published his 2nd book Torture Team. The QC will answer readers’ question on Times Online on May 15. I’m thinking about question.

But first, I should get a copy of his 1st book (can’t find the new one yet) and re-read it. Read the interview in Times (4 May) and the book review of the new book on Times (4 May).

Read also his article in Guardian (19 Apr) about a Guantanamo officials’ interrogation tech inspired by the TV series, 24.