Embassy Law Web Log   
Washington, DC, USA      




Terror Exception in Detention Case

On November 21, 2006, the United States Court of Appeals for the District of Columbia ruled in Sandra J. Simpson et al. v. Socialist People's Libyan Arab Jamahiriya, docket number 05-7049, on the so-called terrorism exception to the Foreign Sovereign Immunities Act. Under the exception introduced by the Antiterrorism and Effective Death Penalty Act of 1996, hostage taking is defined as used in Art. I of the International Convention Against the Taking of Hostages, 28 USC §1605(e)(2). Hostage taking adds a mens rea element to the detention of persons.

The plaintiffs alleged that Libyan forces took them hostage as leverage against the United States and Egypt, among other things, to generate the Convention-defined third-party compulsion. The exception operates in this matter to remove the immunity from civil suits Libya might otherwise have enjoyed.

Libya failed in meeting its burden to disprove that the three statutory criteria of the exception in 28 USC §1605(a)(7)(A), (B) apply. The communication of the intent to force compulsion on third parties is not statutory requirement. If hostage-taking is sufficiently alleged, the court may infer the defendant nation's state of mind and the intentions pursued with the detention of the defendants, the appellate court held. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

Direct Communications

To prevent the abduction of a Ghanaian child from Ghana, Ghana police turned to the German embassy in Accra instead of communicating through the foreign ministry or bringing the matter to court, a Graphic Ghana report charges on November 20, 2006. The main thrust of the article is that the police surrendered the sovereignty of Ghana to a foreign embassy, in violation of procedures designed to channel communications with embassies. The writer detects a pattern which harms national sovereignty. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

Bush Advice Unwelcome in Texas

After the Avena ruling by the ICJ, President Bush suggested that the state courts in the United States respect the decision that reinforced the 1963 Vienna treaty requirement for consular notification of the arrest of foreign nationals. On November 15, 2006, the Court of Criminal Appeals of Texas rejected his admonition in the matter Ex Parte Jos. Ernesto Medellin, docket number AP-75,207. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

Financial Irregularities

Financial irregularities at the Washington, DC, embassy of the Federated States of Micronesia have been made transparent in an audit, SmallTownPapers News Service reports on November 14, 2006. Ambassador Marehalau has returned to Yap for a report. The ambassador is apparently not at fault. Instead, a driver assumed responsibilities for web services and appears to have overcharged the embassy. The audit summarizes the problems as lack of knowledge of procedures or an intent to cover up inappropriate expenditures. The cash journal required by law was unavailable to the auditors. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

Consular Gamble

Interesting legal issues will result from the illegal gambling facility established in the Senegal consulate in Singpore. Only recently has Singpapore changed its laws to permit casinos but an illegal gambling site is punishable by a fine of up of 50,000 Singapore dollars and three years imprisonment, The China Post reports on November 5, 2006. Up to 100 gamblers visited the consulate nightly. The facility operated a small stakes room for baccarat players and another room with stakes of 100,000 Singapore dollars. The operator is said to be Singaporean, not Senegalese. As a result, immunity rules may not protect that person. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

Honorary Appointments

On November 6, 2006, the Fiji Times Online sheds some light on the criteria applied to the appointment of honorary consuls after Fijian ambassador to Washington, Jesoni Vitusagavulu, announced the new posts.

The United States is one of the countries applying restraint in the accreditation of honorary consuls. The hurdles to overcome in some countries exist to minimize abuse of appointments and involve a strict vetting process. Some nations require honorary consuls to establish offices in state capitals unless special situations necessitate the presence of such officials in other areas, such as where many nationals of the appointing nation reside or visit.

In the case of the Fijian appointments, the ambassador explained that the new appointees will be the eyes and ears on the ground for the embassy to identify trade and investment opportunities in two American business centers, Chicago and Dallas. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

Call to Behead Near Embassy

A call to behead non-Muslims near an embassy in London is criminal under English law, a trial in England is set to determine, Life Style Extra reported on November 3, 2006. Allegedly, the defendant also suggested the killing of foreign soldiers in Muslim nations in response to depictions of his prophet in cartoons. Prosecutor Perry outlined the limits of freedom of speech under English law which the report recites, in large part, verbatim. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

Ten Years of Advice

A Georgian law firm celebrates ten years of advice to embassies and other clients in a nation that has only a 15 year history of independence. Providing legal services with a human face is the standard that the Mgaloblishvili, Kipiani, Dzidziguri law firm applies, reports The Messenger on November 2, 2006. -- Clemens Kochinke, Berliner, Corcoran & Rowe, LLP, Washington.

Embassy Hosts Weddings

The Guardian Unlimited reports on October 23, 2006 that the British embassy in Dublin hosts civil partnership ceremonies for gays in Ireland where the law does not provide for such unions. One of the parties to the union needs to be British for the embassy policy to apply.

Witness at Consulate

The illness of an expert witness in South Africa forces courts in Botswana to examine international law on how to conduct the examination of the witness, who is too sick to travel. The options being considered by the court are holding the proceedings at the Botswana High Commission in Pretoria, or examining the witness via video conference.

Botswana's Criminal Proceedings and Evidence Act, passed in 1939, fails to address the issue. Defense counsel has expressed doubts as to the legality of holding the examination Pretoria. She insists video conferencing is the correct approach.

The Director of Public Prosecutions on the other hand, stated that the court could exercise discretion in obtaining the testimony, quoting South African law reports which confirm that proceedings may be held in a foreign country. The SA International Cooperation in Criminal Matters Act, which has been adopted by Botswana, establishes the foundation for countries to cooperate in resolving criminal matters. The Act deals only with issues specific to financial crimes, however.

On October 17, 2006, the magistrate encouraged both sides to take time to research and come to a practical solution in this complex matter. -- Elizabeth Evans, Legal Assistant, Berliner, Corcoran & Rowe, LLP,Washington.