JURIST - Paper Chase: Saturday, March 3, 2012

[JURIST] The UN International Commission of Inquiry on Libya submitted its findings [report, PDF] on Friday, reporting that war crimes and crimes against humanity were committed by both sides of the recent Libyan conflict [JURIST backgrounder]. Established in February 2011 by an emergency session of the UN Human Rights Council [official website], the Commission was mandated to investigate all alleged violations of international human rights law in Libya, and to establish the facts and circumstances of such violations and of the crimes perpetrated. With respect to the national Libyan forces of former leader Muammar Gaddafi [BBC backgrounder; JURIST news archive], the Commission "concluded that international crimes, specifically crimes against humanity and war crimes, were committed ... Acts of murder, enforced disappearance, and torture were perpetrated within the context of a widespread or systematic attack against a civilian population." Regarding the opposing side of the conflict, the Commission reported that the anti-Gaddafi thuwar rebels "committed serious violations, including war crimes and breaches of international human rights law, the latter continuing at the time of the present report. The Commission found these violations to include unlawful killing, arbitrary arrest, torture, enforced disappearance, indiscriminate attacks, and pillage." The Commission further concluded that NATO "conducted a highly precise campaign with a demonstrable determination to avoid civilian casualties" but that further investigations are recommended to evaluate its effectiveness. The report concludes that the Libyan interim government must equally investigate all abuses regardless of the perpetrator, and that Libya will need continued support from the UN and the international community at large to overcome "a legacy of more than 40 years of serious human rights violations and deterioration of the legislative framework, judicial and national institutions."

Allegations of war crimes and human rights violations during the Libya conflict have been widespread. Last month Amnesty International (AI) [advocacy website] released a report accusing the ruling National Transitional Council (NTC) [official website; JURIST news archive] in Libya of allowing the abuse and torture of Gaddafi supporters [JURIST report] by unofficial militias. In October AI alleged that Libyan forces arrested nearly 2,500 people who face ongoing torture and detainment [JURIST report] without formal charges. In September the NTC vowed to investigate allegations of human rights abuses after AI published a report [JURIST report] alleging that both sides of the Libya conflict are responsible for human rights abuses and warning the NTC to act quickly to investigate these allegations. That same month the NTC assured world leaders that Libya will be a society of tolerance and respect [JURIST report] for the rule of law. During a meeting [BBC report] in Paris chaired by French President Nicolas Sarkozy, NTC leader Mustafa Abdel Jalil [BBC profiles] vowed to administer elections and draft a new constitution for Libya within 18 months.

[JURIST] British Petroleum (BP) [corporate website] on Friday announced an estimated $7.8 billion class action settlement [press release] to resolve the majority of claims [materials] filed by individual and business plaintiffs after the 2010 Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive]. The proposed settlement comprises two separate agreements between BP and plaintiffs, one to resolve economic loss claims and another to resolve medical claims, and each is expected to be paid out of the $20 billion compensation trust established by BP in the wake of the disaster. However, the settlement includes neither claims against BP made by the US Department of Justice and other federal agencies, nor by states and local governments. The deal also excludes certain other claims against BP, such as various pending securities and shareholder claims, and claims based solely on the deepwater drilling moratorium or the related permitting process. Additionally the proposed settlement provides that class members would release and dismiss their claims against BP, and that BP will assign to the plaintiffs certain of its claims, rights and recoveries against Transocean and Halliburton for damages not recoverable from BP. The proposal will next be submitted to Judge Carl Barbier of the US District Court for the Eastern District of Louisiana [official website] for final approval. The settlement does not constitute an admission of liability by BP.

Earlier this week Barbier postponed the multi-billion dollar trial [JURIST report] over the Deepwater Horizon oil spill, hours before the trial was set to begin, in order to give BP more time to reach an agreement with plaintiffs. Last month Barbier issued an order that BP will be held liable for a portion of the damages owed by Transocean [JURIST report] as a result of the disaster. Transocean is the company that owned the Deepwater Horizon oil rig that was contracted by BP and subsequently caused the oil spill. BP will be required to indemnify Transocean against damages created by the pollution itself that are awarded throughout the litigation pending against it. BP will not be required to pay an punitive damages or civil fines as a result of these suits. The court did not rule as to whether BP or Transocean would be held strictly liable, negligent or grossly negligent for the equipment failure and subsequent oil spill that created the pollution. The ruling is separate from an August ruling by Barbier permitting punitive damages against BP [JURIST report], but that ruling pertained to claims brought against BP directly.

[JURIST] Egypt has appointed new judges to hear the trial of 43 non-governmental organization (NGO) workers just days after six Americans among those charged left the country after a nearly $5 million bail was paid by the US government. The suspects, including 16 Americans and 27 other foreigners and Egyptians, were charged with promoting democracy in Egypt [JURIST report] without proper documentation and through the use of illegal funds. All but one of the 16 Americans charged in the alleged crimes left the country on Thursday. State Department spokeswoman Victoria Nuland [official profile] said [Reuters report] that it would be up to the US citizens who left to decide whether to return to Egypt to face the charges, but also that she ultimately hopes the case will be dismissed.

The three judges originally responsible for adjudicating the workers' criminal prosecution withdrew from the case [JURIST report] last week. Though unclear as to what caused their withdrawal [AP report], Egyptian lawyer and rights activist Ahmen Seif-al-Islam suggested that political pressure could be the source, noting that the case has strained Egypt's relationship with the US. Specifically, in February, US Ambassador to the UN Susan Rice [official profile] urged Egypt to release the suspects, and US Secretary of State Hillary Clinton [official profile] threatened to reconsider the $1.3 billion in annual aid given to Egypt [Reuters report]. In January, the Egyptian government denied cracking down [JURIST report] on NGOs amid criticism from various human rights groups. Earlier, in December, the Egyptian government agreed to cease its raids of NGOs [JURIST report] after the US expressed concern about Egypt's approach toward NGO activity.

[JURIST] The US Court of Appeals for the Fifth Circuit [official website] on Friday affirmed [opinion, PDF] that the US Army Corps of Engineers (USACE) [official website] is liable to a number of Louisiana property owners for its inadequate work on a shipping channel that caused billions of dollars in damage as a result of Hurricane Katrina [JURIST news archive]. While USACE argued that it should be entitled to immunity from such lawsuits under the Flood Control Act of 1928 [text], the court disagreed, finding that the Corps had not properly maintained the Mississippi River-Gulf Outlet (MRGO) [USACE backgrounder], a New Orleans navigation channel that suffered tremendous flood damages. In upholding a 2009 decision [JURIST report] by the US District Court for the Eastern District of Louisiana [official website], the Fifth Circuit found that USACE had made "negligent decisions" that "rested on applications of objective scientific principles and were not susceptible to policy consideration." Reasoned the court:

At points where it could have mattered, the Corps did not identify MRGO's ability to aggravate the effect of a major hurricane. This is not a situation in which the Corps recognized a risk and chose not to mitigate it out of concern for some other public policy (e.g., navigation or commerce); it flatly failed to gauge the risk.

In upholding the district court's ruling, the Fifth Circuit allowed five plaintiffs to recover approximately $720,000.

Since Katrina, USACE has received about 500,000 other similar administrative claims, and attempted to dismiss this case on several occasions. In March 2009, federal judge Stanwood R. Duval Jr. found [JURIST report] that material questions of fact existed as to a potential violation of USACE's mandate that, if proven, would preclude it from protection under the Federal Tort Claims Act [text]. In May 2009, Duval ruled [JURIST report] that the MRGO is a shipping channel rather than a flood control outlet, which would have given USACE immunity in tort actions. In a similar instance in February 2007, Duval denied USACE's motion to dismiss, which argued that the MRGO was part of a larger flood control system in New Orleans rather than strictly a shipping channel. Three months before Hurricane Katrina struck New Orleans, an expert at the LSU Hurricane Center [official website] predicted that the MRGO could amplify storm surges by 20-40 percent. After Katrina, the center determined through computer modeling that the presence of the MRGO also increased the speed of the surge, causing an even greater detrimental effect [WP report].