Civilian Casualty Ratio : the 80-90% Claim

The civilian casualty ratio in armed conflict is the ratio of civilian casualties to combatant casualties or total casualties. The measurement can apply either to casualties inflicted by a particular belligerent or to casualties in the conflict as a whole. Generating reliable assessment of civilian casualties of war is a notoriously complex process. One problem is the attribution of the label ‘civilian’. Who is a civilian in the context of international armed conflict? And in what way can a civilian become a casualty of war? Another problem is how to find reliable statistics? Although there continues to be much professional discussion about these issues, there is a broad consensus that war has changed significantly since the early twentieth century. In particular in the assumption that overall casualties and direct participation in various modern wars tend to be lower, but the ratio of civilian to military casualties appears to have risen quite dramatically.

Several studies have made similar statements on the proposition that 80 to 90% of victims of modern war are civilians. In his article Lives and Statistics : Are 90% of War Victims Civilians?, Adam Roberts (*), analyses some of these statements. He argues and concludes that ‘certainly these publications have drawn attention to the terrible impact that war has had on civilians populations, but as a generalisation about all wars since 1990 it has been based on shaky foundations’. The indiscriminate adoption of conclusions by others is one example. The ‘80-90%’ generalisation, be it correct or not, certainly contributes to alert the world to the importance of protection civilians in war. But there’s the paradox: despite the growth of international humanitarian and human rights law, and  institutions and movements organized around the protection of civilians, civilian casualties in war are disturbingly high.

(*) President of the British Academy and Senior Research Fellow at the Centre for International Studies, Oxford University Department of Politics and International Relations. Emeritus Felow of Balliol College, Oxford.

The Judges will deliver their sentencing judgment on 30 May after a hearing on 16 May. Subsequently both Taylor and the Prosecutor have 14 days to appeal the decision of the Trial Chamber.

Charles Taylor was charged with a total of 11 counts, i.e., five counts of war crimes: terrorizing civilians, murder, outrages on personal dignity, cruel treatment, and looting; five counts of crimes against humanity: murder, rape, sexual slavery, mutilating and beating, and enslavement; and one count of other serious violations of international humanitarian law: recruiting and using child soldiers. These crimes were alleged to have been committed between 1996 and 2002 during the course of the civil war in Sierra Leone.

Taylor, the first African head of state to be brought before an international court, had pleaded not guilty to all 11 charges.

The civil war began in 1991 when the Revolutionary United Front (RUF), with support from the forces of Charles Taylor’s National Patriotic Front of Liberia (NPFL), intervened in Sierra Leone in an attempt to overthrow the government. Tens of thousands of people died during this war which lasted until 2002, and which was infamous for the brutal hacking off of limbs.

Charles Taylor was indicted in March 2003. After resigning as president of Liberia in June of the same year, he moved to Nigeria where he lived in exile until his arrest in early 2006. He was then moved to the Sierra Leonean capital, Freetown, the seat of the SCSL. Taylor was subsequently transferred to The Hague in the Netherlands in June 2006. Due to fears of instability in the region if Taylor were tried in Sierra Leone, Security Council Resolution 1688 authorized the transfer of the Taylor trial to The Hague. He has been in the custody of the SCSL for almost six years.

The Prosecution alleged that Charles Taylor was bearing individual criminal responsibility for the crimes on the basis that he allegedly took part in the crimes by planning, instigating, and ordering them; aiding and abetting them by providing military training and support to the Revolutionary United Front (RUF) rebels fighting in Sierra Leone and the Armed Forces Revolutionary Council (AFRC); and taking part in the execution of a plan to take control of Sierra Leone during which the crimes were committed. The Prosecution further alleged that Charles Taylor was a superior to perpetrators of the crimes and failed to take reasonable measures to prevent or punish the crimes while knowing or having reason to know about them.

The Trial Chamber found that Taylor’s guilt on the basis of command responsibility and joint criminal enterprise could not be proved beyond reasonable doubt. However, the Judges ruled that his financial and military support substantially contributed to the crimes. He was also said to have participated in the planning of a number of attacks, including the assault on Freetown, the capital of Sierra Leone and to have received so-called blood diamonds from the RUF rebels in Sierra Leone in exchange for weapons and ammunition.

The Charles Taylor trial has been the last of the nine trials conducted by the SCSL since the Court was established through a bilateral treaty between the UN and the government of Sierra Leone in 2002. The trial has probably been the largest and longest running of all the cases tried by the SCSL. About 115 witnesses were heard and the transcripts of testimony amounted to 49,622 pages. The trial also ran over approximately four years which amounted to 420 trial days.

The Ramsar Convention (1971)

 On 2 February 1971, the World’s first modern international convention on this issue was adopted: the Convention on Wetlands of International Importance especially as Waterfowl Habitat. The original Contracting Parties of the Ramsar Convention were driven by an anxiety that migratory waterbirds were in increasing danger because of loss of their breeding, feeding and resting habitats. And yet in their wisdom they created a convention focused on wetland ecosystems rather than just wetland birds. The Convention is an intergovernmental treaty that embodies the commitments of its Members to maintain the ecological character of their wetlands of international importance and to plan for the ‘wise use’, or sustainable use, of all of the wetlands in their territories. Unlike the other global environmental conventions, Ramsar is not affiliated with the United Nations system of Multilateral Environmental Agreements, but it works very closely with the other MEAs and is a full partner among the ‘biodiversity-related cluster’ of treaties and agreements.

 The initial call for an international convention on wetlands came in 1962. Over the next eight years, a convention text was developed through a series of international and technical meetings. Initially the envisaged convention was directed specifically at the conservation of waterfowl through the creation of a network of refuges, but as the text developed, especially with the expert advice of legal consultant Mr Cyrille de Klemm, conservation of wetland habitat (rather than species) took prominence. Finally, at an international meeting in Ramsar, Iran, the text of the Convention was agreed on 2 February 1971 and signed by the delegates of 18 nations the next day. The Convention entered into force in December 1975. Since its adoption, the Convention has been modified twice, first by the Paris Protocol of 1982, a new treaty which amends the original treaty, and subsequently by a series of amendments to the original treaty, known as the ‘Regina Amendments’ of 1987 relating to the Convention’s operation: powers of the Conference of the Parties, establishment of a Standing Committee, a budget, and a permanent Bureau or secretariat. The Convention celebrated its 40^th anniversary in 2011 with 160 Contracting Parties from all regions of the world.

Outlook on Wetlands Protection

 Forty-one years later, the Convention is looking to deal with a wider range of issues than originally intended. Nowadays, wetlands conservation plays a key role in protecting, producing and purifying water. In its mission to promote the conservation and wise use of all wetlands through local and national actions and international cooperation, the Convention contributes to achieving sustainable development throughout the World. Old concerns for the increasing loss and degradation of wetland habitat for migratory waterbirds have thus contributed to water resources protection for the benefit of humankind itself!

Suriname, a former Dutch colony, gained its independence on November 25th, 1975. Merely five years later, the new republic underwent a military coup-d’etat after which Sergeant Major Desi Bouterse, Chairman of the National Military Council, established his rule of the country. On December 8th 1982, 15 opponents of the military regime were tortured and brutally killed in Fort Zeelandia in Paramaribo. [1]

Since then Bouterse has been regarded as the mastermind of these killings and has acknowledged political responsibility for these acts in 1998. However, due to a lack of political will no criminal investigations or prosecutions ever took place until 2007, when the victims’ families finally succeeded in bringing criminal proceedings before a military court against Bouterse and 24 accomplices. In addition, the Dutch Supreme Court convicted Bouterse in absentia for cocaine trafficking and sentenced him to 11 years in prison in 1999. [2] However, he never served his sentence as Suriname like many countries does not extradite its own nationals.

In spite of his conviction in the Netherlands and the ongoing criminal proceedings, Bouterse was democratically elected President on July 19th 2010. As the trial reached its final stages last month, it appeared that after an unfavorable witness testimony, Bouterse would most likely not escape a jail sentence this time around.

On March 21, a bill was put forward by his fellow party members in the parliament that would amend Suriname’s current amnesty law and grant impunity for criminal offences committed “in the context of defence of the state” during the period of Bouterse’s former rule. [3] . The bill was passed on April 4^th and signed the same day by Vice -President Robert Ameerali.

On a national- as well as international level- the bill caused much upheaval. The separation of powers, enshrined in article 131 paragraph 3 of the Constitution determines that any interference in detection or prosecution or in cases pending in court is prohibited. Furthermore, the bill also runs counter to article 101 of the Constitution which requires that the President must act to promote the international legal order.

This bill is considered to be a flagrant violation of international law which established in numerous international court cases that amnesties are not permissible in cases that prevent the prosecution of individuals who may be criminally responsible for international crimes. One of the most well-known cases that dealt with the issue of amnesties was the Barrios Altos Case. In this case, the Inter-American Court of Human Rights ruled that amnesty laws shielding human rights violators from accountability breaches the obligations of member states to respect and ensure the rights in the American Convention of Human Rights. Furthermore, the court stated that it violates the rights of victim’s families to a legal remedy in civil as well as in criminal proceedings to find out the fate of loved ones and those that can be held accountable for this.  The Barrios Altos case has served as a legal basis all throughout the America’s for overturning amnesty laws. The amnesty laws in South-America were created after a period of dictatorial regimes in the 1970’s and 1980’s when gross human rights violations and crimes of international law were committed. In the context of transitional justice and the return of the rule of law, many politicians in power during the military dictatorships wanted to benefit from amnesty laws. In some cases, just like in Suriname, these ultimately amounted in self-amnesties. The decisions by the Inter-American Commission of Human rights and the judgments of the Inter-American Court of Human Rights have led to an erosion of amnesty laws, and in part, contributed to a change in South-American legal culture. Over the last decade, trials against Heads of State have been initiated in countries in the region: Jorge Videla in Argentina, Juan María Bordaberry and Gregorio Álvarez in Uruguay, Alberto Fujimori in Peru and José Efraín Ríos Montt in Guatemala. [4]

Up until now, current events demonstrate that Suriname remains unaffected by these changes that have taken place in legal culture on the South-American continent.  Unfortunately, Suriname does not stand alone when it comes to awarding amnesties to those that are suspected to have participated in human rights violations. Brazil too, has not brought to justice those accused of human rights violations committed during the period of military rule (1964-1985). In December 2010, the Inter-American Court of Human Rights ruled that Brazilian amnesty laws are incompatible with the American Convention of Human Rights and have as a result no legal effect and cannot stand in the way of investigating human rights violations that took place during the military regime. In spite of a lack of political will to investigate these crimes, the Brazilian Judiciary has recently, on a federal level, made serious attempts to prosecute military officials who are suspected of committing human rights violations. These attempts are by many regarded as a positive development to restore the rule of law in Brazil. [5]

On Friday April 13^th, the attention was on the military court of Suriname whose decision in light of the amnesty law was highly anticipated and brought about much speculation. The military court adjourned the case and declared that the amnesty law should be referred to the Constitutional Court for judicial review. The only problem is that a Constitutional Court has not yet come into existence.

At the moment, the justice system in Suriname is living through the most critical time in its history as its independence is being subjected to pressures by the current President’s barely disguised attempt to escape justice for his alleged participation in the murders of 15 opponents of the military regime in December 1982. [6]

The independence of the judiciary is at stake and in the coming weeks the struggle between Suriname’s judicial and political powers will continue. As was stated above, amnesty laws have one by one been ultimately declared null and void in the Americas and those who have passed them or benefited from them have been brought to justice or have been discredited in the face of their citizens.

The court will resume the trial on May 11^th.  This will allow them more time to review the amnesty law and consider other options.

 To be continued………

Footnotes

[1] http://en.wikipedia.org

[2] http://www.hogeraad.nl/  zaaknummer/casenumber LJN AB 1471, Hoge Raad

[3]  www.amnesty.nl

[4]  www.amnesty.nl

[5] Amnestiewet brengt Brazilië geen rust by Philip de Wit in de Volkskrant (6-4-2012)

[6] www.amnesty.nl

Image: Bouterse cartoon by Jos Collignon in the Volkskrant (07/04/2012)

Sources:

Radio Netherlands Worldwide  Suriname

Starnieuws

Amnesty International: Netherlands

Volkskrant

The sustainability idea emerged in a series of meetings and reports during the 1970s and 1980s. A few highlights in the sustainable development timeline:

• In 1972, the UN Stockholm Conference on the Human Environment marked the first great international meeting on how human activities were harming the environment and putting humans at risk. The conference has led to the establishment of numerous national environmental protection agencies and the United Nations Environment Programme (UNEP).
• The 1980 World Conservation Strategy, prepared by the International Union for the Conservation of Nature (IUCN) along with the UN Environment Program and the World Wildlife Fund, promoted the idea of environmental protection in the self-interest of the human species. 
• In 1987, the UN-sponsored Brundtland Commission released “Our Common Future”, a report that captured widespread concerns about the environment and poverty in many parts of the world. This report contained the most frequently quoted definition of sustainable development:

“Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. (pg 43)

The definition contains two key concepts; the concept of needs, in particular the essential needs of the world’s poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organization on the environment’s ability to meet present and future needs. The Brundtland report also mentioned that economic development cannot stop, but it must change course to fit within the planet’s ecological limits.

• In 1992, world attention on sustainability peaked at the UN Conference on Environment and Development (UNCED), in Rio de Janeiro. It brought together the heads or senior officials of 179 governments, and included the Earth Summit, the largest-ever meeting of world leaders. Rio produced two international agreements (the Convention on Biological Diversity and the Framework Convention on Climate Change), two statements of principles (the Rio Declaration on environment and development and the non-binding Statement of principles for the Sustainable Management of Forests) and a major action agenda (Agenda 21) on worldwide sustainable development.
• In 1997 the Kyoto Protocol was adopted in Kyoto, Japan and came into force on 2005. This international agreement linked to the United Nations Framework Convention on Climate Change sets binding targets for 37 industrialized countries and the European community for reducing greenhouse gas (GHG) emissions.

The interest in sustainability that flourished during that period was accelerated by a series of incidents and discoveries, including the leak of poisonous gas from a chemical plant at Bhopal, India, the explosion and radioactive release from Chernobyl, Ukraine, the hole in the Antarctic ozone layer, leaking toxic chemical dumps, such as Love Canal, general fears about chemical contamination and conflicts over decreasing natural resources such as forests and fisheries.

The objectives of UNCSD for the Rio+20 are to secure renewed political commitment to sustainable development, to assess progress towards internationally agreed goals on sustainable development and to address new and emerging challenges. The Summit will also focus on two specific themes: a green economy in the context of poverty eradication and sustainable development and an institutional framework for sustainable development.

UN Secretary-General Ban Ki-moon emphasized that Rio+20 would be a unique chance to discuss challenges and solutions to visualize and plan for “the future we want”. Rio+20 is historically important for humanity and should not be “just another UN conference.”

The World Diamond Council and all its members have agreed to provide evidence to all purchasers until the sale to consumers that the diamonds being sold are from conflict free sources. This involves a written statement on all invoices making a declaration that the diamonds are from a conflict free source which is referred to as the ‘System of Warranties’. For this purpose the Kimberley Process has been founded :  a unique joint initiative involving governments, the international diamond industry and NGOs to stem the flow of conflict diamonds.  Progress to achieve this shared objective began in May 2000 and by December 2000, all 191 members of the United Nations General Assembly voted unanimously to support the process. In 2003, the United States established the Clean Diamond Trade Act, designed to stop the trade of blood diamonds that fund violent civil conflicts in many African countries.

But unfortunately the (Antwerp) diamond industry has been confronted with a few fraude cases:

Monstrey Worldwide Services monopolizing in transporting diamonds to Antwerp provided the diamond industry with a fraude and moneylaundering circuit. The Antwerp Department of Justice is planning to prosecute 107 diamond companies.

HSBC – a branch of a British bank in Switserland offers secret bank accounts to high-ranking diamond traders. Antwerp tax authorities are investigating allegations of tax evasion.

Omega Diamonds – Belgium police are investigating an alleged multibillion-Euro fraud involving Omega Diamonds. Representatives from the company allegedly earned billions of Euros by buying diamonds cheaply on the black market in Angola and the Democratic Republic of the Congo (DRC). They then traded the stones to companies in Dubai, Tel Aviv and Geneva for profit and laundered the proceeds.

Sometimes it’s very difficult to point the origin of a particular diamond. The diamonds mined in Africa are transported to Dubai,  where they get mixed up with other diamonds. Dubai has a booming diamant centre within a free trade zone and without any taxes. The above mentioned diamant company Omega Diamonds has allegedly exploited this socalled Dubai-route many times.

The Kimberley Process is an import-export certification scheme which requires participating governments to certify the origin of rough diamonds, and put in place effective controls to prevent conflict stones from entering the supply chain. Question is, will it work? Member governments have repeatedly failed to deal effectively with problem cases such as Zimbabwe, Côte d’Ivoire and Venezuela. Despite the existence of the Kimberley Process, diamonds are still fuelling violence and human rights abuses.

In November 2011, the Kimberley Process formally agreed to allow two companies to export diamonds from Zimbabwe’s Marange diamond field. That decision came despite claims from both Human Rights Watch and Global Witness that the Zimbabwean army has been involved in human rights abuses in the mining areas. It has also been suggested that funds from diamond sales might be used to fund orchestrated violence and intimidation of voters in the run-up to elections next year. Because of this dissatisfactory situation Global Witness, one of the watchdogs in the Kimberley Process, had decided to leave the Kimberley Process. In its announcement of its withdrawal Global Witness stated, “Nearly nine years after the Kimberley Process was launched, the sad truth is that most consumers still cannot be sure where their diamonds come from, nor whether they are financing armed violence or abusive regimes.”

Will the diamond industry ever be clean?

The defense has 30 days to appeal the verdict. A separate hearing will be held by the Trial Chamber to decide on the sentence for Lubanga and in another hearing the Chamber will  establish the principles that are to be applied to reparations for victims.

Lubanga is the former leader of the Union of Congolese Patriots and its rebel militia who operated in the district of Ituri, a region rich in mineral reserves, in the northeastern part of the Democratic Republic of the Congo. His militia, which recruited children, some as young as nine, to take part in brutal ethnic fighting, carried out widespread killing, rape, and torture of many thousands of civilians throughout the district for a number of years in the early 2000s.

Although Lubanga could have been charged with several other serious crimes, the prosecutor focused exclusively on the recruitment and use of children in armed conflict, which are war crimes under Article 8 of the ICC Statute.

In its judgment which made several important findings the Trial Chamber was able to rely upon the case law of the Special Court for Sierra Leone which charged all nine of its original defendants, including former Liberian president Charles Taylor, with the crime of recruiting and using children in armed conflict and has already convicted four defendants of this crime.

The Trail Chamber concluded that the crimes of conscription and enlistment were committed as soon as the child joined an armed group, with or without compulsion. This implies that any use of children in an armed conflict, due to its coercive circumstances, is prohibited irrespective of whether parents or children themselves support the involvement of the child.

In addition, the Trial Chamber found that the crime of using children to participate actively in hostilities also included activities of the children involved in support roles to the combatants. The crucial factor under these circumstances is whether the support role exposed the child to real danger as a potential target. The combination of the child’s support and this level of consequential risk, according to the Chamber, meant that the child was actively involved in the hostilities despite its absence from the immediate scene of the hostilities.

 Another important aspect of the case was the direct involvement of victims, including former child soldiers, in the trial. The ICC Statute was the first to include provisions on the rights of victims to participate fully in the trial proceedings. During the course of the trial, a total of 129 victims participated through their legal representatives. They were authorized to make submissions to the judges, introduce evidence, and question witnesses on specific issues. The contributions of the victims played a major role in the trial. For the first time, the victims were able to express their views and concerns at various stages of the proceedings.

The trial, however, has also been severely criticized by many for its long duration, the way in which the prosecution conducted  the initial investigation, procedural  conflicts, and the limited scope of the indictment against Lubanga. Nevertheless, at the end of the day this first conviction shows that the ICC can, even in a difficult situation, bring those who commit crimes against international law to justice.

The ICC judgment firmly establishes the use of children in armed conflict as an international crime and also focuses renewed attention on the many thousands of children still used in various other conflicts in the world.

According to Human Rights Watch, children are currently recruited and used in armed conflict in at least 15 countries and territories: Afghanistan, Burma (Myanmar), Central African Republic, Chad, Colombia, Democratic Republic of Congo (DRC), India, Iraq, Occupied Palestinian Territories, Philippines, Somalia, Sri Lanka, Sudan, Thailand, and Uganda.

For birds, habitat loss is the most important factor closely followed by threats posed by materials used to build in the construction industry. The trend among architects is to use plate glass in building, purely for aesthetic reasons. This is causing many birds to collide with glass windows, often with fatal consequences. The problem with glass is that it is invisible to birds. During daytime tinted or mirrored glass reflects the sky, trees and other surrounding vegetation, giving birds an illusion of save passage or habitat. With clear glass structures birds head straight for natural features which can be clearly seen through the glass or large plants placed near windows inside a building. Extensive night lighting of buildings can cause nocturnal birds or night-migrating birds to collide with glass windows, as light attracts nocturnal insects or is mistaken for navigational signs. Artificial lighting can be even more confusing to birds under certain prevailing weather conditions, such as rain, fog or low cloud.

In a study on the collision issue, spanning more than 30 years, a noted ornithologist estimated that on average every structure with glass windows has 1–10 bird strike fatalities a year. Converted to North America this amounts to between one hundred million and one billion birds killed by flying into buildings. A solution to the problems caused by these glass panes is not that difficult; turning off lights in tall buildings at night is one solution, as many of the (smaller) birds migrate at night. Removal of trees close to reflective windows is also an option. As the majority of bird collisions occur at levels below sixteen metres, another most effective solution is to apply visual markers, or, for more aesthetic reasons, a specialized film which can be applied to windows. Specialized collision prevention netting can also be used.

According to statistics of the non-profit group FLAP (Fatal Light Awareness Program) there are over one million fatal bird collisions with glass windows each year in Toronto, which lies in the heart of one of the busiest migratory bird routes in North America. The City of Toronto’s 2005 Bird Friendly Development Guidelines specify that retrofitting windows with transparent films will solve much of the bird strike problems. The drawback with these guidelines is that they are not mandatory for owners of existing buildings. There is a high awareness among existing building owners of the hazards that windows pose for birds, but not much is done because solutions available to owners are either too costly to carry out or not particularly aesthetic. Although there is no intention of killing birds, there comes a point where building owners have to take responsibility. In a bid to force the issue two independent environmental organizations, Ecojustice and Ontario Nature, resorted to a lawsuit. The goal of the lawsuit is to send a message to owners of existing buildings that measures can be implemented to avoid killing birds.

In March 2011 private charges were filed under Section 14 of the Ontario Environmental Protection Act (EPA) and the Prevention of Cruelty to Animals Act against Toronto-based Menkes Development and its sister companies, alleging that light from the highly reflective window surfaces of its Consilium Place office complex have caused the death or injury of birds, including species already in steep decline. Section 14 (1) EPA reads “Subject to subsection (2) but despite any other provision of this Act or the regulations, a person shall not discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment, if the discharge causes or may cause an adverse effect. 2005, c. 12, s. 1 (5).” According to Section 1 (1) EPA “contaminant” means any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse effect.

FLAP statistics rank the Consilium Place as the most lethal building structures in Toronto for birds. Composed of three adjoining 17- and 19-storey office towers with glass panels that mirror the sky and surrounding trees, it is giving birds an illusion of save passage. Menkes had attempted to scare birds away by using holographic tape, but failed to do so, because birds are learning quickly that the tape does not pose a threat and fly over or underneath it. Retrofitting the three buildings appropriately will cost Menkes approximately CAN$30.000 for each building.

After several trial sessions between April 2011 and February 2012, a decision on the case is not expected until November 2012. The maximum fine under the EPA is CAN$6 million per day for a first offence. The charge under the Prevention of Cruelty to Animals Act for causing distress to birds carries a maximum fine of CAN$60,000. If successful, it would not only encourage other building owners to take action in order to avoid being targeted, but it could also have a ripple effect, as this lawsuit, being the first of its kind in North America, is closely monitored internationally. It would also add another positive development for (migratory) birds consisting of the adoption of more standards to make the building environment safer. For example, the San Francisco Standards for Bird-Safe Buildings, adopted in July 2011, following the guidelines and standards of the Cities of Toronto, New York, and Chicago and the State of Minnesota.

In 2005, Canadians were witness to a vivid demonstration of their government’s commitment to Arctic sovereignty. In July, a diplomatic row was sparked by two helicopter visits by the Canadian Forces to the island, an apparent response to the commencement of annual Danish naval visits in 2002. Besides delivering a plaque and replacing the Danish flag with a Canadian flag, the aircrew constructed an Inuit stone marker known as a Inukshuk. During the second visit, the military was accompanied even by the Minister of National Defence, the Hon. Bill Graham. The Danish government subsequently retaliated by calling in the Canadian ambassador to express its displeasure, then sending a warship to plant a Danish flag. However, by mid-August, the threat of the matter escalating to further military inspections had subsided. The two governments renewed their commitment to further negotiations over title to Hans Island. On September 19, 2005 both countries agreed to a truce in the dispute.

The 1973 Delimitation Treaty and Hans Island

The history of possession of the land in this part of the Arctic is long and interesting. Canada claims Ellesmere Island and the rest of its Arctic possessions on the basis of the British Adjacent Territories Order, which gave Canada all of British possessions on September 1, 1880. Denmark gained the Northern portions of Greenland after the United States relinquished its claims in an 1917 agreement in order to purchase the Danish West Indies. There is little subsequent history of tiny Hans Island itself until 1971 when, in the middle of discussions to determine the continental shelf boundaries between Canada and Greenland, Canada first claimed sovereignty over the island. Denmark directly disputed this claim.

 Unable to agree on ownership of the island, the two countries simply left the issue unsolved. In the culminating Delimitation Treaty of December 17, 1973¹, the borderline between Canada and Greenland is drawn by connecting the midpoints of 127 straight baselines surveyed between the coasts of both countries. At the time, it was the longest continental shelf boundary treaty ever negotiated and may have been the first ever to be developed by a computer program. The treaty does not, however, draw a line from point 122 (80° 49′ 2 – 66° 29′ 0) to point 123 (80° 49′ 8 – 66° 26′ 3), a distance of 875 m (2,871 ft). Hans Island is situated in the centre of this area. During negotiations the two countires simply decided to stop the border at low water mark on one side of the island and restart it again at low water mark on the opposite site.

Future developments and solutions

Almost 40 years after the signing of the 1973 Delimitation Treaty, global warming, and with it changes in economic and strategic interests, have now invested the simple question of ownership of tiny Hans Island with grander symbolic and legal stature. With no known natural resources on the island itself, there is now speculation that the surrounding seafloor could contain such. As Arctic waters could become more navigable throughout the year, the interest in controlling the island is growing. Future acces to the Northwest Passage might be at stake.

Territorial dispute resolution through political means and international cooperation has been the preference of most countries. On several occasions, however, countries have decided to submit their disputes to a third party for binding legal settlements. Suggestions have been made for peaceful dispute resolution of the Hans Island dispute before the International Court of Justice². Although not the only party available to countries engaged in territorial disputes, it has heard many different cases, while complicated and often lengthy. A possible outcome could be as simple as dividing the island in two by drawing a straight line between points 122 and 123 of the 1973 Delimitation Treaty. There certainly is a point there, as the Canadian Press revealed in July 2007. After reviewing the latest satellite imagery available, Canadian federal officials conceded that the international boundary line roughly runs through the middle of Hans Island, and not east of the rocky outcrop as previously believed³.

¹ Agreement between the Government of the Kingdom of Denmark and the Government of Canada relating to the Delimitation of the Continental Shelf between Greenland and Canada, December 17, 1973 950 U.N.T.S. 148

² Stevenson, Ch., “Hans Off! : the Struggle for Hans Island and the Potential Ramifications for International Border Dispute Resolution”, in: 30 Boston College International and Comparative Law Review (2007) 1, pp. 263-275

³ Satellite Imagery Moves Hans Island Boundary: Report, CBCNews,  Thursday, July 26, 2007

Case Axel Springer AG v. Germany

The applicant company, Springer published in the Bild (a national daily newspaper), a front-page article about X, a well-known television actor, being arrested in a tent at the Munich beer festival for possession of cocaine. The article was illustrated by three pictures of the actor. The German court granted the actor an injunction to prohibit the publication of the article and the photos in the newspaper. Springer did not challenge the judgment concerning the photos. The Bild published a second article in July 2005, which reported on the actor being convicted and fined for illegal possession of drugs after he had made a full confession. The German courts held that the right to protection of X.’s personality rights prevailed over the public’s interest in being informed, even if the truth of the facts related by the daily had not been disputed. Springer complained that the injunction preventing it from publishing the articles was a breach of its Article 10 of the European Convention on Human Rights. The ECHR examined whether a German actor’s right to privacy was violated when a paper published a newspaper article and photos of his arrest for illegal drug possession at a public festival. The Strasbourg Court held, by a majority, decided that there had been, a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.
The court looked at six factors in considering whether the sanctions imposed by the German court had been justified under Article 10(2): the contribution of the article to a debate of general interest, how well known the actor was, his prior conduct in relation to the media, the method of obtaining the information and its veracity, the content form and consequences of the articles and the severity of the sanctions. The Court decided that there was a degree of public interest. The actor was sufficiently well known to qualify as a public figure, which gives the public a greater interest in being informed about his arrest and the proceedings against him. The actor had a decreased expectation of privacy due to the fact that his arrest occurred at a public event and because he previously actively released details of his private life through the media. Thus the Court concluded that the publication of the article had not had serious consequences for the actor.

Case Von Hannover v. Germany (no. 2)

Princess Caroline has always been trying to prevent the publication of photos of her private life in the press.
The first Hannover case in 24 June 2004 concerned photos of the Princess in public places showing scenes from her daily life. The German courts had found that Princess Caroline was undeniably a contemporary “public figure par excellence”, and therefore had to tolerate the publication of such photographs even when they were not related to her official duties.
But the ECHR found that the photos and articles had not made a contribution to a debate of general interest, and that the means of taking the photos were harassing and involved a strong sense of intrusion into private life. Moreover, the Court concluded that the criteria that had been established by the domestic courts to distinguish a figure of contemporary society “par excellence” from “a relatively public figure” were not sufficient to ensure the effective protection of Princess private life.
The second Hannover case revolved around a photo of the Princess and her husband taking a walk on their skiing holiday in St. Moritz, the Swiss luxury ski resort, accompanied by an article discussing the poor health of her father Prince Rainier. Relying on the first Hannover case, the Princess and her husband had sought an injunction in the German courts against the publication of further photos. While providing an injunction against the publication of the further disputed photos, the German courts found the publication of this particular one, in the context of the deteriorating health of the Prince, to be of public interest.
The Princess and her husband complained that the refusal by the German courts to grant an injunction against any further publication of the photo had violated their right to respect for their private life under Article 8 of the European Convention of Human Rights. This time the ECHR agreed with the German courts and accepted the position that the publication was justified by the public interest. It reiterated the general principles and its previous case law concerning private life and freedom of expression, including its judgment in the earlier Hannover case. It also relied heavily on the decision of the German Federal Court of Justice, and emphasized member states’ broad margin of appreciation in matters like this.
In light of these factors, the ECHR derived five criteria for balancing private life and freedom of expression in its landmark decision:
1. There needs to be consideration of the degree to which the publication (be it a photo or an article) contributes to a debate of general interest, which is to be judged on a case-by-case basis.
2. The status of the person concerned as a private individual or a public figure is also determinative, since reporting on details of the lives of private individuals is less likely to contribute to “a debate in a democratic society,” and thus, the press’ role as a “public watchdog” also diminishes in this case. Even though in certain cases the public has the right to be informed of “aspects of the private life of public figures,” the reason for this must be more than mere “public curiosity.”
3. Prior conduct of the person with the press needs to be taken into account.
4. The way of publication of the photo or report as well as the manner of representation of the person concerned need to form part of the consideration.
5. Whether the photo was taken with the consent of the persons concerned or was done “without their knowledge or by subterfuge or other illicit means” is to be weighed.

As well in the Axel Springer case as the Von Hannover 2 case, the EHCR acknowledged the need to balance the right to privacy against the right of the media to freedom of expression, but also indicated that privacy rights are diminished when individuals can be considered public figures. This judgment provides some useful guidance concerning balancing Articles 8 and 10 where photographs are published but recognizes that the way in which those criteria are applied will vary between member states. Although recognizing the importance of protecting one’s image, the Court was very reluctant to impose a one-size-fits-all standard for Europe. It goes some way towards indicating what will and will not be a matter of general interest and indicates that matters related to the personal affairs of public individuals are unlikely to fall into that category.

In the Netherlands the Dutch media is bound by a 2005 “Media code” enforced by the government to leave the royals alone except during ”media moments” organized by the Government Information Service (GIS) or on official functions. This Media code was inspired on the judgment by the ECHR in the first Hannover case. In this case the ECHR made a distinction between reporting facts capable of contributing to a public or political debate of general interest, and reporting details of the private life of an individual who does not exercise official functions. This distinction was later not only used to prevent each and every publication of photographs of famous Dutch people that did not serve the public interest but also for the Dutch Royal Family.

The Media Code stipulates, amongst others:
1. The GIS takes care of the organization, announcement and possible pooling arrangements for the benefit of
media moments. (…)
3. The privacy of members of the Royal House is respected, that is to say that they may rely on being left in
peace at those moments at which they do not come forward in their official functions. Consequently, this also
applies to the under-aged members of the Royal House (…).
Not complying to this Media Code will mean exclusion from these special media moments of the Royal family.

The question is if the Von Hannover II case has any consequences for the Dutch Media code? The main difference between the two Von Hannover cases is that in the second case, the need to report of celebrities private lives for public interest purposes is stretched and therefore more acceptable. But even if the Media Code is not conform with European law, it still could have the status of a ‘gentleman agreement’ between the Government Information Service and the media. In exchange of special media moments, the media should further respect the privacy of the Dutch Royal Family.