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Timbul Silaen worked as police chief in East Timor in 1999. As such, he was responsible for the security during the independence referendum held in the country on 30 August 1999. Before and after the referendum deadly incidents took place between people in favour of East Timor’s secession from the Republic of Indonesia and the pro-Indonesian supporters. Approximately 1000 people died, 80% of the territory was destroyed, and 250,000 people were forcibly evacuated to Indonesia.

Silaen was prosecuted because as a commander he allegedly failed to stop his subordinates from committing crimes and also failed to bring them to court in order to be prosecuted. In 2002, the Indonesian Ad Hoc Tribunal for East Timor did not found Silaen guilty as a commander because it could not be proven beyond a reasonable doubt that his subordinates had committed the crimes.

Who can be held responsible in a Court of law for human rights violations? In this case, victims and relatives of victims of the South African apartheid regime sued several corporations for their involvement in South Africa in the period between 1948 and 1994. They were liable, the plaintiffs reasoned, because the police shot demonstrators “from cars driven by Daimler-Benz engines”, “the regime tracked the whereabouts of African individuals on IBM computers”, “the military kept its machines in working order with oil supplied by Shell”, and so forth. The main legal issue to be solved by the District Court was whether it had jurisdiction over this case under the Alien Tort Claims Act (ATCA), which allows non-Americans to sue in federal Court for a violation of a small group of international norms. The District Court ruled that this case did not fall within the scope of the ATCA for several reasons. They could not be qualified as state agents carrying out illegal state actions, business activities in South Africa during the apartheid era could not be defined as a breach of the ‘law of nations’ under the ATCA and neither could aiding and abetting to an international norm violation. 

In October 2001, six men were arrested in Bosnia and Herzegovina for their alleged involvement in the bombing of the US Embassy in Sarajevo (Bosnia and Herzegovina). Later, they were handed over to the US and transferred to the US Naval Base at Guantanamo Bay (Cuba).

In 2004, the men filed a petition for a writ of habeas corpus (a legal action in which the petitioners challenge the legality of their detention). In 2005, the US District Court ruled that Guantanamo detainees do not have habeas corpus rights. The detainees appealed the decision. In the aftermath of the adoption of the Military Commissions Act in 2006, the US Government requested the dismissal of the case, arguing that the federal court no longer had jurisdiction to hear the case.

The Court of Appeals found that the Military Commissions Act indeed removed the jurisdiction of federal courts to hear habeas corpus petitions from Guantanamo detainees. Accordingly, the Court of Appeals dismissed the detainee’s petitions on the grounds of lack of jurisdiction.

What happened after a makeshift bomb ended the life of a US Navy Marines Corporal near the village of Haditha on 19 November 2005? After increasing media attention, the US army launched an investigation and charged eight marines, as raids against the population of Haditha allegedly resulted in the death of 24 civilians. Proceedings were initiated against Jeffrey Chessani, a commander who had not been present during the explosion and its aftermath, but had allegedly failed to adequately report and investigate the incident.

However, by the time the Navy-Marine Corps Court Trial Judiciary rendered a judgment, the legal question did not revolve around Chessani’s role during the incidents, but around the question whether there was an appearance of unacceptable influence on the case by Colonel Ewers, an important figure in military legal circles. The NMCTJ ruled that the US government had failed in refuting the appearance of “unlawful command influence”. According to the NMCTJ, the presence of someone with Ewers’ reputation, who had strong views regarding Chessani’s guilt, could have influenced the prosecutor and legal advisers. Therefore, charges against him were dismissed.

In August 1998, the US embassies in Kenya and Tanzania were bombed by terrorists loyal to Osama bin Laden. In retaliation, President Clinton ordered a missile strike on the El-Shifa pharmaceutical plant in Khartoum, Sudan, arguing that it was a base for terrorism. Later, it was proven that the plant had no ties to terrorists. Therefore, El-Shifa Pharmaceutical Industries brought complaints against the United States in the US Court of Federal Claims.

In November 2005, the District Court found that El-Shifa Pharmaceutical Industries raised a non-justiciable political question (which foresees that courts have no authority to hear or adjudge on matters that raise political, rather than legal, questions) in asking the Court to adjudge on the President’s powers to designate as enemy property the private property of the chemical plant in Sudan.

In March 2009, the Court of Appeals affirmed the decision of the District Court, holding that the case raised a political question, and therefore barring the court from hearing the matter. El-Shifa Pharmaceutical Industries attempted to exclude from its appeal the political question doctrine, however, the Court of Appeals found that the other raised claims were ‘inextricably intertwined’ with the political  question doctrine and therefore, must be considered together. The Court of Appeal affirmed the District Court’s earlier finding that the raised issues are political questions and hence, non-justiciable.