Student Features – Page 13 – Harvard International Law Journal

In Shabani v. Switzerland (application no. 29044/06), a 4-3 decision, the European Court of Human Rights (ECtHR) ruled last Thursday (11/5) that a lengthy pre-trial detention did not violate the right to liberty of a suspected leader of a drug trafficking organization.

The applicant, Mr. Ragip Shabani, was denied the option of posting bail and was then subject to a pre-trial detention lasting over five years. He had originally been arrested on August 2, 2003, on suspicions of taking a leading role in a drug trafficking operation believed to involve fourteen-hundred kilograms of heroin and cocaine. After losing his appeal concerning Switzerland’s decision not to allow him to post bail, he turned to the ECtHR in 2006 while investigations were still underway, claiming that his lengthy detention violated his right to liberty. Subsequently, Mr. Shabani was indicted in December 2007, and his trial was scheduled for March 2008 but was later delayed until August 2008 due to a lack of adequate security staff. He was convicted on October 30, 2008.

The ECtHR recalled its previous findings that a government’s reasonable suspicion that someone had committed an offence could only justify detention for a limited period of time; after that time had lapsed, the authorities would have to give “relevant” and “sufficient” reasons for the continued detention and show that they had displayed “special diligence” in the conduct of the proceedings. The Court found that the government’s reasons for the continued detention satisfied these additional conditions. The government’s concerns that Mr. Shabani might abscond or collude if given the chance to post bail, as well as the potentially dubious origin of the funds used, justified its denial of that opportunity. And the proceedings were understandably long, since investigating an underground international criminal organization is a complex operation; in this regard, the Court found it especially significant that there had been no periods of inactivity during the proceedings.

In a short dissent, three judges rejected the “no period of inactivity” logic, pointing out that it could potentially justify indefinite detentions. They further argued that the delay in the trial’s starting date had been insufficiently explained; after more than four years with Mr. Shabani in detention, Switzerland should have been particularly cognizant of the need to start trial immediately after the indictment was filed. In their view, Switzerland’s lack of diligence, coupled with the lengthy detention, constituted a violation of Mr. Shabani’s right to liberty.

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Article Responses

Evaluating the Civilian-Use Model of Wartime Property Damage

July 17, 2009

Responding to Lea Brilmayer & Geoffrey Chepiga, Ownership or Use? Civilian Property Interests in International Humanitarian Law, 49 Harv. Int’l L.J. 413 (2008).

I. INTRODUCTION

That civilians suffer in war is a historic, global phenomenon; that they deserve more respect during the fighting and more help after the smoke clears is obvious to anyone who has visited Afghanistan, the Democratic Republic of Congo, or Sri Lanka in the past year. The extent of civilian suffering seldom corresponds to the compensation that individuals or communities receive, or when it does, the calculus for such compensation does not take into account the far-reaching implications of the harm done to ordinary people who now must try to pick up the pieces of their lives. Brilmayer and Chepiga argue that deliberate damages to property should be compensated according to “use value” rather than ownership, such that the damages represent the social costs to the entire community. Under this theory, a hospital turned to rubble, a distinct violation of International Humanitarian Law (IHL), would be valued for its far-reaching utility as a community asset for health care and peace of mind, not just for its bricks and mortar. The authors justify this calculus on the grounds that the loss inflicted on potential users of that hospital is greater than its
market value.

For practitioners, both advocates and humanitarians, there are two underlying imperatives that must remain at the fore of efforts to fill known gaps or inadequacies in IHL; to neglect the full realization of either imperative is to inadvertently undermine the interests of civilians. First, practitioners are concerned about improving the welfare of civilians during war, as follows from IHL’s baseline assumption that civilians should be spared to the best extent possible the atrocities that war inevitably brings. Our second priority is to add to or strengthen incentives that deter warring parties from harming civilians. The authors argue that a model for damages recognizing the “civilian-use” value of community property would better reflect the real harm done and, consistent with existing IHL provisions, provide additional deterrence against targeting civilian property that is “indispensable to the survival of the civilian population.”1 To understand the value and utility of Brilmayer and Chepiga’s “civilian-use” model, we therefore apply this two-part test: (1) Will the “civilian-use” model meet the most critical needs of civilians suffering from armed conflict? (2) Will it change the behavior of warring parties? The answer to both of these questions is a solid maybe.

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