Search results

Post-apartheid South Africa continues to be faced with the difficult question on how to deal with past human rights violations. From 1999 until 2005, the South Africa Prosecution Authority attempted to have Wouter Basson convicted. Basson was head of the secret chemical and biological warfare project during the apartheid era. He was charged with a variety of crimes, including murder, fraud and dealing drugs. After several charges were dismissed and Basson was acquitted of all other charges, the prosecutor sought permission to appeal. The prosecutor argued that the trial judge should have stepped back from the case, as the prosecutor had accused him of being biased. Also, the prosecutor held that several charges should not have been dismissed and that the bail records should have been admitted during the trial proceedings. The Supreme Court of Appeal had denied this request, after which the prosecutor turned to the Constitutional Court.

In the preliminary ruling under review here, the Court refused to grant permission to appeal, although it did held that the issues raised by the prosecution were constitutional matters. Therefore, the Court ruled, these issues fell within the jurisdiction of the Constitutional Court. 

The Chagos Archipelagos are a collection of small islands in the middle of the Indian Ocean. Under British administration since 1814, they were home to approximately 1000 inhabitants by the 1960s who lived on and cultivated the land, educated their children and raised their families.

In 1964, the British and the United States governments entered into secret negotiations the outcome of which was the establishment of a military base on Diego Garcia, the Chagos Archipelagos largest islands. In order to do so, from 1965 until 1971, the population of Chagos was forcibly relocated: those who had left on trips abroad were denied re-entry, an embargo was put in place preventing the delivery of crucial food supplies, and the remaining population was forcibly loaded onto ships and relocated to Mauritius and the Seychelles.

The present civil suit is brought by the indigenous peoples of Chagos, their survivors and their descendants against the United States and a number of high-ranking individuals within the US Government whom the plaintiffs consider responsible for their forcible relocation. By its memorandum opinion of 21 December 2004, the United States District Court for the District of Columbia dismissed the plaintiffs’ motion on the ground that the named individual defendants were all federal employees at the time (e.g. former Secretaries of Defense, Admirals) and therefore benefited from immunity from prosecution under US law. Alleged violations of the Alien Tort Claims Act do not fall within the accepted exception to immunity because the Act itself does not create substantive rights and obligations that can be violated. 

Eleven Guantanamo detainees petitioned for habeas corpus, claiming that their continued detention without a right to judicial review was unlawful.

The Court partly agreed with the detainees. While they are not US citizens, they are being held under control of the US government. The fact that Guantanamo Bay is conveniently placed outside US sovereign territory does not change this. Hence, Guantanamo detainees have the right not to be deprived of liberty without due process of law, a fundamental constitutional right. This right had been violated, and the Combatant Status Review Tribunal (CSRT) procedures were found unconstitutional. And regarding alleged Taliban fighters, the Court held that they are state forces - regular soldiers or combatants - and should therefore receive prisoner of war-status and -protection under the Third Geneva Convention. Where they had not received such protection without proper reasons, their detention was illegal.

All other claims (based on the Sixth, Eighth and Fourteenth Amendment and the Alien Tort Claims Act) were rejected, they were inapplicable on the current cases.

After the Chilean military staged a coup d’état in September 1973, elected President Salvador Allende was replaced with a military junta, chaired by Augusto Pinochet. During his time in office, widespread human rights violations were reported. In this case, the plaintiffs sought to establish the responsibility of the United States, more particularly former National Security Adviser and former Secretary of State Henry Kissinger, for these human rights violations. According to several victims and family of victims, the United States played an important role in the military coup, for example by funding and assisting the military.

The District Court had dismissed the claim on its merits, but the Court of Appeals held that the Court did not even have jurisdiction. Under US law, claims regarding strictly political questions, for example regarding foreign policy and defense, are barred. The Court held that this claim regarded measures taken to implement foreign policy and that a judge should not rule on this. Questions regarding foreign policy, the Court reasoned, should remain strictly within the domain of politics.