International Justice in the News
The International Center for Ethics, Justice and Public Life brings you a monthly selection of news about the people involved in the work of international courts and tribunals, significant developments in international justice, and publications and resources of interest. We hope that this brief selection will help you keep abreast of the field and lead you to sites where you can inform yourself further.
The International Center for Ethics, Justice and Public Life of Brandeis University recently concluded the tenth session of the Brandeis Institute for International Judges (BIIJ). The Institute was organized in collaboration with the University of Malta, which hosted the group of 14 judges on its historic Valletta campus. Judges serving on the benches of 11 international courts and tribunals across the globe engaged in discussions around the theme “International Courts, Local Actors,” contributing a wide range of views about diverse aspects of this important relationship. Learn more about the event and participants, and read the reflections of two Brandeis interns about the BIIJ discussions.
People in the News
| Rowan Downing
at BIIJ 2015 in Malta
Judge Rowan Downing QC (BIIJ 2013 and 2015) was recently appointed as an ad litem judge of the United Nations Dispute Tribunal (UNDT) in Geneva, Switzerland. Judge Downing has served in the Extraordinary Chambers in the Courts of Cambodia (ECCC) since 2006. The ECCC is a hybrid court comprised of international judges and Cambodian judges that is tasked with prosecuting perpetrators of crimes under international law and other serious crimes that occurred during the reign of the Khmer Rouge. The UNDT is an appeals court that hears cases against administrative decisions issued by a variety of UN organs and agencies. To find out more about the UNDT visit its website. Learn more about the career of Rowan Downing here.
Mary Robinson, who formerly served both as President of Ireland and UN High Commissioner for Human Rights, recently published an editorial in The Guardian where she asserts the need for “climate justice.” President Robinson noted that climate change will disproportionately impact developing states and populations that are not primarily responsible for global warming. She argues that in order to fully protect human rights, particularly those of “the victims of climate change,” international law must be applied and reformed in such a way that it places the proper burden on industrialized nations to assist those not responsible for climate change in adapting to it, while taking all necessary measures to mitigate the future harms of this environmental trend.
King of Belgium and
International Criminal Court (ICC) Judge Christine Van den Wyngaert (BIIJ 2015) was recently granted the title of Baroness by the King of Belgium for her achievements as both an academic and an international judge. Judge Van den Wyngaert was a Professor of Law at the University of Antwerp for 20 years, served as a visiting fellow at the University of Cambridge, has received several honorary doctorates, and has published numerous articles and texts on human rights and international criminal law. Prior to her election to the ICC, she served as an ad hoc judge in the landmark Arrest Warrant Case (Democratic Republic of Congo v. Belgium) at the International Court of Justice. She also served as judge of the International Criminal Tribunal for the former Yugoslavia (ICTY) from 2003 to 2009. Read her full bio here.
In other ICC news, six new judges were elected to its bench during the December 2014 session of the Assembly of States Parties. They are: Chang-ho Chung (Republic of Korea), Piotr Hofmanski (Poland), Péter Kovács (Hungary), Antoine Kesia-Mbe Mindua (Democratic Republic of the Congo), Marc Pierre Perrin de Brichambaut (France), and Bertram Schmitt (Germany). During the same session, a general debate was held on “cooperation in the field of sexual and gender based crimes.” Observers and NGOs have repeatedly criticized the ICC for not prioritizing sexual and gender-based crimes and for the OTP’s failure to effectively prosecute such crimes. At least one of the new judges, Antoine Mindua, already has expertise in this domain, having served previously at the ICTY. He shared his knowledge of crimes of sexual violence at a 2013 judicial colloquium organized collaboratively by Brandeis University, Physicians for Human Rights, and the Institute for Historical Justice and Reconciliation: “Adjudicating Sexual Violence Under International and Domestic Law: the Case of the Democratic Republic of the Congo.”
The Government of Sri Lanka has appointed Mr. Motoo Noguchi (Japan, BIIJ 2010), former International Judge of the ECCC and the Chair of the Board of Directors of the Trust Fund for Victims of the ICC, as an expert to the Advisory Council of the Presidential Commission to Investigate Complaints Regarding Missing Persons in Sri Lanka. In the wake of Sri Lanka’s brutal civil war, the government has established this commission to provide answers to families reporting missing persons as well as to contribute to national reconciliation efforts. Read more in this press release from the Japanese Ministry of Foreign Affairs. The Presidential Commission includes other eminent figures in international justice, namely Sir Desmond de Silva QC (UK), former Chief Prosecutor of the Special Court for Sierra Leone, and Geoffrey Nice QC (UK), who led the prosecution of Slobodan Milošević at the ICTY.
Developments in International Justice
The United Nations Arms Trade Treaty (ATT) entered into force on 24 December 2014. The treaty prohibits States from exporting conventional weapons to nations where those arms will be used in the commission of war crimes, crimes against humanity, or genocide. A group of independent UN human rights experts have found some gaps in the treaty, however. For example, the ATT does not address the issue of terrorists, as the treaty does not prohibit the transfer of arms to non-state entities. Also, as one human rights expert commented, “the world needs to stop not only the trade in, but also the profit-driven production of all arms.” The ATT will be influential in limiting the global arms trade but a more comprehensive regime needs to be put in place to counteract the strong incentives for states and corporations to sell arms to those who would use them, in order to fuel more production and profit. Although the ATT is now legally in force, several major states have not yet signed or ratified it. The United States have signed but not ratified, while China and Russia have not yet moved to the signature phase. The ATT requires global compliance to most effectively accomplish its aims of reducing weapons transfers and protecting innocent lives. Read more about the ATT’s entry into force and the comments of human rights experts in a UN press release. Read the full text of the historic treaty and see which states have signed and ratified it here.
A Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) has been convened to adjudicate a maritime boundary dispute between the Republic of Ghana and the Republic of Côte d'Ivoire. Three members of the Tribunal, along with two ad hoc judges, will decide the case. Although ITLOS has been in operation for almost 20 years, it has only adjudicated 23 cases. Each case is thus important in terms of precedent for international maritime law as well as significant to the future of the Tribunal. Read an ITLOS press release on the convening of the Special Chamber and its constitution.
The recently transferred ICC suspect Dominic Ongwen has made his first appearance before the court in The Hague. The Pre-Trial judge verified his identity, determined in which language he would follow proceedings, and informed him of the charges against him. Ongwen is an alleged senior commander of the Lord’s Resistance Army, the rebel force led by Joseph Kony that terrorized northern Uganda for years, killing thousands and abducting countless boys and girls for use as child soldiers and sex slaves. The ICC’s first ever arrest warrants were issued against Kony, Ongwen, and several other LRA leaders. The recent surrender of Ongwen to United States forces in Uganda, his handover to the Ugandan government, and its subsequent decision to transfer him to the ICC is a major accomplishment for the Court after its recent termination of proceedings against Kenyan President Uhuru Kenyatta for lack of evidence. The Prosecutor also decided to drop the investigation of crimes allegedly committed by Sudanese President Omar al Bashir. The Court claimed that both moves were necessary due to lack of cooperation by African States Parties as well as assistance from the UN. Read more about Ongwen and the case against him in an ICC press release.
UN Secretary General Ban-Ki moon has extended the mandate of the Special Tribunal for Lebanon (STL) for an additional three years beginning on 15 March 2015. The STL was established to prosecute the terrorists responsible for the assassination of Lebanese Prime Minister Rafiq Hariri on 14 February 2005 and the deaths of individuals in associated attacks. One notable aspect of the STL is that it is the first international criminal tribunal empowered to prosecute terrorism. The STL is also permitted to prosecute accused individual in absentia. The five persons currently accused by the STL are all still at-large, but proceedings against them have been initiated. Read more in a press release.
1 January 2015 marked the start of the International Decade for People of African Descent. The United Nations General Assembly (UNGA) adopted a resolution proclaiming the decade as such, along with numerous policy initiatives and programs which member states should implement to protect the human rights of people of African descent. The rationale for the decade, according to the UN, is the fact that numerous persons of African descent “continue to be victims of racism, racial discrimination, xenophobia and related intolerance, including their contemporary manifestations, some of which take violent forms.” In the UNGA Proclamation of the Decade, notice is made of the intersection of discrimination against people of African descent with factors such as their gender, age, and religion. The Decade grew out of the 2001 World Conference Against Racism that occurred in Durban, South Africa. The resulting document, the Durban Plan of Action, recognized that people of African descent “were victims of slavery, the slave trade and colonialism, and continue to be victims of their consequences.” Read more about the Decade and its aims at the special UN website.
The Court of Justice of the European Union (CJEU) has issued a major ruling in the case of A, B, C v Staatssecretaris van Veiligheid en Justitie, concerning whether or not EU law restricts any of the methods used by states in determining the sexual orientation of an asylum seeker. The Court ruled that such methods are subject to EU law and set down four guiding principles that national agencies should use when assessing asylum claims. In a blog post, international legal expert Paul Johnson specifically focused on the fourth, and perhaps broadest, principle. It states that, given the “sensitive nature of questions relating to a person’s personal identity and, in particular, their sexuality, it cannot be concluded that a declared sexuality lacks credibility simply because…the person did not declare his or her homosexuality at the outset.” These principles address a growing issue in asylum application procedures, which seek to determine if the applicant truly has the sexual orientation he/she claims. This CJEU judgment is highly significant and useful, Johnson asserts, because it adopts a much more progressive view than that promulgated by the European Court of Human Rights (ECtHR) in its own rulings.
In another decision highlighting differences in the European human rights regime, the CJEU has ruled that a draft agreement for the accession of the EU to the European Convention on Human Rights is incompatible with EU law. The EU has been working for decades to accede to the European Convention so as to homogenize member state policy and more effectively protect the rights enumerated in the Convention. If the EU accedes it would establish a “single, comprehensive and coherent” human rights regime for all EU member states. The Court cited ten issues with EU law that prevent the organization from acceding to the Convention. These involve the primacy of EU law over the Convention, problems that could result from the European Court of Human Rights (which interprets and applies the ECHR) having an impact on EU/member state relations, and the primacy of the CJEU over any other Court in certain matters. Read more about the case here.
The Inter-American Court of Human Rights (IACtHR) has recently issued two major decisions, one regarding the length of proceedings and the other forced disappearances.
In Tarazona Arrieta and Others v. Peru, the Court unanimously decided that Peru had violated its international obligations by allowing criminal proceedings against a soldier responsible for killing two civilians and injuring a third to continue for an unreasonable period of time. The soldier in question, Evangelista Pinedo, was initially indicted for the crimes in 1994, but a 1995 Amnesty Law led to his case being archived. It was not until the IACtHR declared that Amnesty Law incompatible with the American Convention on Human Rights, in 2003, that the National Criminal Court of Peru convicted Pinedo. In its recent judgment, the IACtHR ruled that the delays in the trial of Pinedo were in violation of the IACtHR and were to the detriment of the victims’ parents.
In Rochac Hernández and Others v. El Salvador, the Court unanimously found that the forced disappearance during the nation’s civil war of five children, aged nine months to 13 years, violated and continued to violate the human rights of the children and their families. The Court further ordered the government of El Salvador to continue the search for the children to determine their whereabouts, facilitate the research of citizens into human rights abuses through the release of archival information from the armed conflict, and to construct a memorial to the child victims of forced disappearances during the war.
Learn more about these decisions here.
The African Commission on Human and Peoples’ Rights (ACHPR) has ruled that a complaint brought against Djibouti regarding the capture and transfer of a Yemeni national from Tanzania to Djibouti, as part of the United States’ controversial extraordinary rendition program, failed to meet its rigorous criteria for admissibility. The Commission ruled that the petitioner, Mohammed Abdullah Saleh Al-Asad, failed to meet the “territorial jurisdiction” standard. It required Mr. Al-Asad to prove that he was located within the territorial borders of Djibouti when the alleged violation occurred or that he demonstrate that Djibouti had “assume[d] effective control of part of a territory of another state [or] exercise[d] control or authority over an individual.” The Commission ruled that the evidence presented by Mr. Al-Asad was ultimately circumstantial and not compelling enough to meet the standard. The NYU Global Justice Clinic has filed a request for review of the decision, submitting several new pieces of evidence to prove Mr. Al-Asad’s claim that he was in Djibouti during his extraordinary rendition. To read more about this case, the appeal, and the ACHPR, read a summary at the International Justice Resource Center.
|Palestinian President Mahmoud Abbas|
Kenneth Roth, executive director of Human Rights Watch, has published an LA Times editorial in support of the Palestinian Authority’s (PA) decision to join the International Criminal Court (ICC). The article argues that the inclusion of the PA in the ICC can only contribute, rather than hinder, the peace process, and that the prospect of accountability will act as a deterrent for future war crimes. He further states that the ICC will not be a political actor in the conflict but a neutral judicial force seeking to uphold international law, protect civilians from harm, and deliver global justice. Read the full editorial here.
The popular Israeli online news source Ynet offers an alternative view. A recent article presents the difficulties that would face the PA in its attempts to bring Israelis to account for crimes against the Palestinian population, including the fact that the ICC normally does not investigate crimes alleged to have occurred before a member’s ratification of the Rome Statute. This would preclude an investigation of last summer's military action in Gaza. On the other hand, the Ynet article notes, Jewish settlements in the West Bank are ongoing and have already been deemed illegal under international law through a 2004 advisory opinion of the ICJ. They thus could be investigated by the ICC. Click here to read the full and detailed article.
Publications and Resources of Interest
Michael Bohlander (Durham University Law School) tackles a controversial topic in a recent article, “Murder by YouTube – Anti-Islamic Speech and Homicide Liability” (Journal of Islamic State Practices in International Law, Volume 10 (2) 2014). His introduction explains his point of departure: “Usually, hate-speech and its criminalisation are looked at from the angle of a separate hate-speech offence, and often in the context of human rights law, especially freedom of speech and religion. In the Islamic world, such issues are treated under blasphemy laws and the availability of severe sanctions for that offence, not infrequently the death penalty, may make a separate recourse to homicide offences unnecessary. Yet, recent events in the Islamic world suggest that it would not be unimaginable to entertain the idea of a liability for the deaths of those killed in unrests caused by hate-speech, in Western legal systems: Can it be acceptable any longer, in the age of YouTube and other (social) networks of instantaneous and easy-access worldwide information traffic, that people intentionally put out inflammatory messages which they know will lead to unrests with the risk of lethal outcomes, without having to bear any legal consequences? Is freedom of speech a panacea which allows them to wash their hands of these obvious effects of their actions? Can the criminal law accommodate liability in such circumstances or are we asking the system to do something that it should not and maybe even cannot do? Is that kind of thinking the first step on a slippery slope towards religious censorship and thought-crime?” Access the full text here.
The American Journal of International Law and European Journal of International Law have joined forces on a symposium examining international environmental laws designed to protect elephants, or “elephant law.” The articles of the symposium highlight the limit of international treaties to protect the elephant, such as the Convention on International Trade in Endangered Species of Flora and Fauna. New threats to elephants are discussed as well, particularly the emergence of organized criminal organizations that are illegally poaching and trafficking in ivory to fuel armed conflict. The rates of elephant poaching have increased so dramatically that the extinction of the elephant has become a real possibility. Read more about the various articles here (subscription may be necessary to access the full text).
A cornerstone of international justice is the independence of the judicial institutions that deliver it. Dominik Zimmerman, a legal officer at the International Atomic Energy Agency, has recently published a book on this critical topic: The Independence of International Courts: the Adherence of the International Judiciary to a Fundamental Value of the Administration of Justice (Hart Publishing 2014). The volume combines a theoretical framework for judicial independence with a thorough analysis of several major international courts, including the ICJ, ICC, ITLOS, and ECtHR. Zimmerman’s conclusions cover general normative points about judicial independence, specific requirements for individual courts to be independent, and guidance for future permanent judicial bodies.
The People for Change Foundation (PfC) has released Malta’s first human rights report. It focuses on the issues raised by transnational migration of asylum seekers from Africa and the Middle East to Malta. The report explores thematic issues such as maritime migration, migrant detention, racism, integration, access to citizenship, trafficking, and children’s rights, among others. Two decisions by the Constitutional Court of Malta are profiled, decisions which affirmed the rights of refugees to be protected from degrading or inhuman treatment (i.e. torture) and the extent of the legal obligation on Malta to enforce that right. The report also discusses the rights of children, and the vulnerability of children to human trafficking. The PfC was founded by Jean-Pierre Gauci, a co-covener of the 2015 session of the Brandeis Institute for International Judges. To read the full report, visit the PfC’s website here.
International Justice in the News is edited by Leigh Swigart, Director of Programs in International Justice and Society, and Michael Abrams '15.
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