On May 30, 2012, the Appeals Chamber (Chamber) of the International Criminal Court (ICC) voted unanimously to dismiss the appeal of the Prosecution against the decision of the Pre-Trial Chamber not to confirm the charges against the alleged Congolese warlord Callixte Mbarushimana. The Prosecution had alleged Mbarushimana was criminally responsible under Article 25(3)(d) of the Rome Statute (Statute) for crimes against humanity and war crimes committed by members of the Forces Démocratiques de Libération du Rwanda (FDLR) in the Kivu provinces of the Democratic Republic of the Congo. The Prosecution had appealed the Pre-Trial Chamber’s decision on three separate issues, all of which were rejected.

In Ahmad and Others v. United Kingdom, the European Court of Human Rights (the Court) upheld the extradition of several suspected terrorists to the United States, despite the possibility that if convicted, the suspects could face life sentences and imprisonment or both, in a “supermax” prison. This decision marks another important step in the development of the Court’s Article 3 extradition jurisprudence. It also illustrates the uneasy tension between that jurisprudence and the efforts of European states to cooperate with U.S. anti-terror initiatives.

The European Court of Human Rights (the Court) has issued a judgment in the case of Othman (Abu Qatada) v. the United Kingdom. The Court ruled that the United Kingdom would violate the Applicant’s Article 6 right to a fair trial if it were to deport him to Jordan, where he is sought on terrorism charges. The judgment is significant because it addresses the permissibility of expelling an individual to a third country to face a criminal prosecution, one in which evidence obtained through torture may be used in the case.

On December 13, 2012, the Grand Chamber of the European Court of Human Rights (the Court) issued a final judgment in the case of El-Masri v. the former Yugoslav Republic of Macedonia. It found that Macedonia, as a State party to the European Convention on Human Rights (the Convention), was responsible for torturing El-Masri while he was in the former Yugoslav Republic of Macedonia (FYRM) The El-Masri judgment is the first time in which an international court has ruled on the U.S. practice of secret forced renditions. It follows the rationale of Soering v. United Kingdom, that a State can be held responsible for facilitating a violation by a State outside the Council of Europe, and places it in a modern war on terror context.

In October 2012, the United Kingdom Supreme Court (the Court), by a 4-1 majority, signaled a sweeping return to a more traditional approach to the enforceability of foreign judgments in avoidance in Rubin v. Eurofinance SA. The Court rejected the more liberal rule previously advocated by the Court of Appeal, which gave English courts discretion to allow enforcement of in personam judgments in avoidance where they were related to insolvency and bankruptcy proceedings. The central issue in Rubin v. Eurofinance was whether an in personam judgment, entered in default but made as part of, or pursuant to, insolvency or bankruptcy proceedings abroad could be enforced at English common law. The Court held that the American default judgment at issue in Rubin was not enforceable in English courts.