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Michael Schwartz on M.B.Z. v. Clinton (Zivotofsky case), investigation of Gaddafi death, and more
Friday, October 28, 2011

Michael Schwartz in SCOTUSblog on MBZ v. Clinton, SCOTUSblog, October 25, 2011

LP Advisory Board member Michael Schwartz (Of Counsel, Wachtell, Lipton, Rosen & Katz) was invited to submit a comment on SCOTUSblog’s recently launched online community regarding the soon-to-be-argued Zivotofsky case. This past summer, Mr. Schwartz assisted The Lawfare Project in preparing its amicus brief in support of the Petitioner and ultimately submitted the brief to the U.S. Supreme Court. Mr. Schwartz’s comment regarding separation of powers can be found here. [Scroll down page.]

Security Council Votes Unanimously to End NATO Civilian Protection Mandate in Libya

Yesterday, the UN Security Council passed a resolution terminating authorized military intervention in Libya and well as a no-fly zone over the country. Under the authorization, UN Member States could take “all necessary measures” to protect civilians in the midst of fighting between rebels and forces supporting the Gaddafi regime. Among the measures taken were air strikes conducted by NATO and other countries. The resolution acknowledged positive developments in Libya, which the Security Council asserted would “improve the prospects for a democratic, peaceful and prosperous future there.” Read more.

Gaddafi family to file war crimes complaint against NATO

The family of former Libyan leader Muammar Gaddafi announced that it will file a war crimes complaint against NATO with the International Criminal Court (ICC) for its conduct that allegedly led to Gaddafi’s death. The ICC has jurisdiction over war crimes occurring in Libya since February 2011, when the UN Security Counsel unanimously voted to refer Libya to the court. This was the first unanimous referral to the ICC in UN history. NATO responded that it “conducts its operation in strict conformity with the relevant U.N. Security Council resolutions” and denied targeting specific individuals.

Gaddafi’s family is not alone in demanding answers. The UN Office of the High Commissioner on Human Rights and Amnesty International also called for a full investigation into Gaddafi’s death, noting the importance of determining whether the killing occurred during fighting with rebels or as an execution after Gaddafi was taken into custody. Under the 1949 Geneva Conventions, the killing of a combatant after he has been disarmed and taken into custody is a war crime, unless the combatant has first received a fair trial. Read more.

Court to rule on suing corporations and PLO

The Supreme Court accepted two cases that will require the Court to decide whether corporations or political organizations can be sued in U.S. courts for foreign acts of torture, murder, or other international law violations, under two U.S. laws: the Alien Tort Statute (ATS) of 1789 and the Torture Victim Protection Act (TVPA) of 1991.

Kiobel v. Royal Dutch Petroleum involves ATS-based claims against three oil companies by twelve Nigerians alleging that the defendants enlisted the Nigerian government to suppress resistance to oil exploration in the country’s Ogoni Region. Plaintiffs claim that the government’s armed forces attacked and killed Ogoni residents and destroyed their property.

The TVPA suit, Mohamad v. Rajoub, involves torture claims against the Palestinian Authority and the Palestine Liberation Organization by the family of Azzam Rahim, a U.S. citizen who allegedly died from injuries sustained during acts of torture at the hands of PA and PLO officers.

The common question before the Court is whether the respective human rights law applies to non-natural persons. That is, to corporations (Kiobel) and political or non-political organizations (Mohamad).

It is worth noting that the Court’s decision in Kiobel will determine the outcome of suits brought by Israeli terror victims under the ATS against the Arab Bank. See Almog v. Arab Bank, PLC.

Read more.

UN human rights expert questions targeted killings and use of lethal force

A UN human rights expert stated that Member States, in pursuing their “legitimate security interests,” must respect international standards on the use of lethal force during arrests. Specifically, he opined that whether the use of deadly force against a fleeing suspect is permissible should depend on “the potential harm that the person in question holds for society at large,” rather than solely on the severity of the crime committed. Addressing targeted killings, the expert warned that the use of drones and raids into countries where no armed conflict is recognized are “highly problematic” because these methods may lead to civilian casualties. He added that such tactics are used on too large a scale to be described as “targeted.” Read more.

For the position in defense of using lethal force and targeted killings with drones, see U.S. State Department Legal Adviser Harold Koh’s March 2010 speech to the American Society of International Law.

ICC asks Malawi to explain failure to arrest Sudan’s President on visit

Following reports of a recent visit to Malawi by Sudanese President Omar Hassan al-Bashir, who is wanted on charges of war crimes, genocide, and crimes against humanity, the International Criminal Court (ICC) asked the nation to explain why it failed to arrest and surrender Bashir. The ICC had already issued two arrest warrants for Bashir for alleged crimes committed in Darfur. As a State Party to the Rome Statute (the treaty that established the ICC), Malawi was legally obligated to arrest and surrender Bashi when he entered its territory. If Malawi fails to comply with the ICC’s request to cooperate, the Rome Statute provides that the nation may be referred to the Assembly of States Parties or to the Security Council. Read more.

Iran: UN human rights expert concerned over judicial abuses

Ahmed Shaheed, UN Special Rapporteur on human rights in Iran, identified alleged violations in Iran’s legal system, including torture, cruel or degrading treatment of detainees, the imposition of the death penalty without proper safeguards, and denial of access to legal counsel. The list goes on. In some instances, said Shaheed, “elements of Iran’s penal code and legal practices amount to contravention of those international laws it acceded to.” He also noted that he had been informed of at least 42 instances where lawyers were arrested and prosecuted for trying to provide legal counsel based on charges such as “acting against national security” and “insulting the Supreme Leader.” Read more.

Guatemala, Morocco, Pakistan and Togo elected to Security Council

Guatemala, Morocco, Pakistan, and Togo have been elected by UN Member States in the General Assembly to serve as non-permanent members of the Security Council for 2012–2013. The seats are divided into geographic groupings, with three from Africa and the Asia-Pacific region, one from Eastern Europe, and one from Latin America and the Caribbean. The seat allocated to Eastern Europe is vacant; no country received the requisite two-thirds majority of countries present and voting. Read more.

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