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.

October 2016

People in the News

           The Honourable Sylvain Oré
The African Court on Human and Peoples’ Rights (ACtHPR) recently selected its new leaders. Justice Sylvain Oré (Côte d’Ivoire) and Justice Ben Kioko (Kenya) were elected president and vice president, respectively. Over the past month, the ACtHPR has reaffirmed its commitment to the protection of journalists and their freedom of expression. Shortly after his election, President Oré declared, “I'm a firm believer of [the] enormous important role journalists and media houses play in the protection of human rights… The people of Africa need to be informed about their human rights enshrined in their constitutions and how to achieve these rights. This should never be misconceived as rebellious or counter-productive.” The Court also recently announced, during its joint meeting with the African Commission on Human and Peoples’ Rights, its plan to establish both a Legal Aid Fund and a Pan African Human Rights Institute.

eDavid Schwendiman (United States) has been appointed chief prosecutor of the Kosovo Specialist Prosecutor’s Office, a branch of the Kosovo justice system recently established along with the Specialist Chambers. As described in ASIL Insights, these two institutions were created through an amendment of the Kosovo Constitution to investigate, prosecute, and try international crimes committed during and in the aftermath of the 1998-99 conflict in Kosovo, including trafficking in human organs. The institutions will apply the law of Kosovo but operate with an entirely international staff.  Schwendiman, who previously served as the lead prosecutor of the European Union’s Special Investigative Task Force (SITF) on Kosovo, commented on the seamless transition of the SITF to the Kosovo Specialist Prosecutor’s Office. He further explained that “he would carry out his investigations without ‘fear or favour,’” alluding to allegations that Hashim Thaçi, the former Kosovo Liberation Army leader who is now head of state, was most responsible for these crimes. The Kosovo Specialist Chambers and Prosecutor’s Office are headquartered in The Hague.

   Nakagawa testifying before the ECCC
The defense attorneys for Khieu Samphan and Nuon Chea, the co-accused in Case 002/02 at the Extraordinary Chambers in the Courts of Cambodia (ECCC), have argued for the admissibility of additional documents relevant to the case, including the transcriptions of over 2,000 interviews. The attorneys claimed that these documents “would help to contextualize the charge of forced marriage and would support the testimony of an upcoming expert witness.”  Japanese scholar Kasumi Nakagawa also testified in the trial, providing insights from “her research on gender issues in relation to sexual violence, rape and forced marriage under [Pol Pot’s] regime.” Khieu Samphan and Nuon Chea have already been found guilty and sentenced to life in prison for crimes against humanity in Case 002/01. The ECCC decided to sever the charges against the duo, leaving the charges of genocide, sexual violence and other crimes for the second trial.

dThe International Criminal Court (ICC) recently faced an unprecedented challenge – a two week-long hunger strike and trial boycott by an accused person. Bosco Ntaganda is charged with having committed multiple war crimes and crimes against humanity. His trial commenced in September 2015, following his voluntary surrender to the Court in 2013. His refusal to eat and attend hearings was a “protest against the conditions of his detention and his accusations that the court [was] not giving him a fair trial.” He vowed to continue the strike until the court lifted the restrictions placed on his personal contacts and communication. The judges sitting on the Ntaganda trial initially continued prosecution testimony in his absence before conceding to his demands to have a family visit. Defense lawyer Stéphane Bourgon subsequently announced that Ntaganda had resumed eating and signed a waiver requesting to be excused from attending proceedings for a number of days to enable him to attend a family visit and recover from the hunger strike. He also asked that his counsel represent him during this absence.

dThe Inter-American Commission of Human Rights has filed an application with the Inter-American Court of Human Rights in a case involving human rights violations committed against 11 Mexican women. The case of Mariana Selvas Gomez et al. dates back to protests carried out in 2006 in San Salvador Atenco by flower growers and other groups. A Commission investigation found that the women were arbitrarily detained and suffered multiple abuses at the hands of state agents, including “diverse forms of physical, psychological and sexual torture.” Mexican President Enrique Peña Nieto was the governor of the state where the events in questions took place and he allegedly ordered security forces to crack down on the protesters and may even have orchestrated a cover-up. According to The New York Times, Peña Nieto’s involvement in the affair constitutes “another blow to a presidency under siege.” 

Developments in International Justice

eThe European Court of Human Rights (ECtHR) has declared inadmissible an application involving the possible criminal responsibility of UN Peacekeepers for men killed in the Srebrenica massacre of July 1995. The applicants in Mustafić-Mujić and Others v. The Netherlands, relatives of men killed in Srebrenica, claimed that the government of The Netherlands failed to properly investigate and prosecute three Dutch UN peacekeepers “for allegedly sending their relatives to their probable death by ordering them to leave the safety of the UN peacekeepers’ compound after the Bosnian Serb forces had overrun Srebrenica and its environs.” The ECtHR declared unanimously that the government of The Netherlands had “sufficiently investigated the incident,” after the conclusion of numerous national and international inquiries. 

         Jennifer Hillman
A recent post in the International Economic Law and Policy blog calls into question tactics by the United States to block the appointment of World Trade Organization Appellate Body (AB) members who may oppose its trade policies. Steve Charnovitz of George Washington University Law School writes, “By conditioning its support for a judicial reappointment on whether or not a WTO judge sides with the United States on the substance or process of WTO law, the Obama Administration strikes at the heart of the concept of judicial independence.” Charnowitz refers to US unilateral action in May 2016 to unseat Appellate Body Member Seung Wha Chang, a distinguished jurist from South Korea. In 2011, the US blocked the reappointment of the US member of the Appellate Body, Jennifer Hillman (Brandeis Institute for International Judges 2009, ’10 & ’12), “reportedly on the grounds that she had not upheld U.S. protectionist measures being challenged in WTO dispute settlement.”

        Refugees gathered in central Budapest
Hungary is being criticized for responding to the large influx of refugees into Europe with hostility and xenophobic sentiments. According to Human Rights Watch, the government has created “abysmal conditions in [refugee] camps,” extreme hurdles for asylum seekers, and “brutal pushbacks at the Hungary-Serbia border.” The Hungarian government has also, it is reported, “sponsored xenophobic anti-refugee propaganda.” This tactic is being used to gain the public’s support for an upcoming national referendum for the implementation of refugee quotas in Hungary. Prime Minister Viktor Orbán called for this referendum after his government refused “to participate in a binding [European Union] agreement requiring member states to relocate asylum seekers equitably across the Union.” Due to “its increasingly hostile approach to refugees,” Luxembourg’s foreign minister, Jean Asselborn, has argued that “Hungary should be temporarily or even permanently expelled from the EU for treating asylum seekers ‘worse than wild animals.’”

                          members of the OTP
Israel is, for the first time, entertaining the possibility of a visit from the Office of the Prosecutor (OTP) of the International Criminal Court (ICC). The visit would be in the context of “a preliminary inquiry into Palestinian complaints against Israel’s 2014 Operation Protective Edge in Gaza and settlement construction in the West Bank.” The intention of the visit would be “to engage in a dialogue about the prosecution’s work, Israel’s legal system and the preliminary inquiry process,” and not to “gather any evidence or look into the Palestinian complaints.” A preliminary investigation was launched several months ago, soon after the Palestinian Authority was approved as a member of the ICC Assembly of States Parties. According to the Centre for Research on Globalization, the ICC is ultimately “interested in examining how effective Israel’s legal mechanisms are in investigating allegations of war crimes.” The Israeli military exonerated itself late last month in 13 cases it had been investigating.

dIn other ICC news, the Court recently issued a policy paper indicating its intention to select cases that include “the illegal exploitation of natural resources, cases of environmental destruction, and ‘land grabbing’, where investors buy up vast areas of poor countries.” The expansion sends a message, according to The Washington Post, that the ICC Office of the Prosecutor intends to “pursue cases involving environmental damage or the misuse or theft of land as crimes against humanity. It also raises the question of whether international corporations and other businesses could become embroiled in cases in a court better known for cases against dictators and warlords.”

The environment, and climate change in particular, has also been a significant topic of discussion for the United Nations (UN) this past month. With the opening of the 71st session of the UN General Assembly under the theme, “The Sustainable Development Goals: a universal push to transform our world,” the urgency of combatting climate change was front and center. UN Secretary General Ban Ki-moon hosted a special event to encourage the ratification of the Paris Agreement that came out of the UN Climate Change Conference last year. Over 60 parties have ratified the agreement, which accounts for over 45% of global greenhouse gas emissions. The agreement “will enter into force 30 days after the date [in] which at least 55 countries, accounting for 55% of the total global greenhouse gas emissions, have deposited their instruments of ratification.” Ban Ki-moon has high hopes for the success of the Paris Agreement and expects it to enter into force over the next few months.

        Delegation Heads at the 2015 UN Climate Change Conference

dThe Court of Justice of the European Union (CJEU) has now weighed in on the Islamic headscarf debate through opinions issued by Advocates General Juliane Kokott (Germany) and Eleanor Sharpston (United Kingdom). As covered in a multi-part commentary series in Strasbourg Observers, Kokott and Sharpston issued contrasting opinions in “two parallel cases of alleged headscarf discrimination.” Both cases were brought to the CJEU to determine if the dismissal of an employee on the grounds of wearing a headscarf violates the European Union’s antidiscrimination laws. According to the commentary, “[u]nderlying the difference in outcomes are numerous important differences in the interpretation of the Employment Equality Directive. These differences of interpretation, in turn, betray widely divergent views on the protection of the fundamental rights of minorities in Europe.” Commentator Eva Brems notes that while such cases are normally decided by the European Court of Human Rights, “[t]he Strasbourg Court has disappointed many by failing to find violations of religious freedom in any of the numerous cases involving headscarf bans that have been brought before it, and even in the French ‘burqa ban’ case. Its reasoning, based on the ‘margin of appreciation’ doctrine, has been interpreted by some as a refusal of the Court to exercise human rights leadership in the thorny matter of the inclusion of Europe’s Muslim minorities.”

Publications and Resources of Interest

fA recent OUP blog post by legal scholar Mark Drumbl problematizes the manner in which perpetrators and victims are normally viewed in processes of international criminal justice. While it may seem logical to attach evil to the first group and innocence to the second, Drumbl notes that the situation is not so simple. “Many perpetrators are tragic. They may begin as victims. Victims, too, may victimize others. These victims are imperfect. Some victims survive – and some even thrive – because of harm they inflict.” In a London Review of International Law article entitled “Victims who Victimise” (2016), Drumbl explores these questions in depth, comparing the Kapo collaborator trials in Israel with the ICC case of Dominic Ongwen, child soldier turned Lord’s Resistance Army leader.

dA European Journal of International Law article by Karen Alter, James Gathii and Laurence Helfer, “Backlash Against International Courts in West, East and Southern Africa: Causes and Consequences” (2016) was recently the subject of an EJIL: Talk! Symposium.  The authors discuss three credible attempts by African governments to restrict the jurisdiction of three similarly situated sub-regional courts in response to politically embarrassing rulings. However, the three backlash campaigns produced divergent outcomes. In West Africa, governments rejected the Gambia’s effort to restrict the powers of the Economic Community of West African States (ECOWAS) Court to review human rights complaints. In East Africa, Kenyan officials failed to eliminate the East African Court of Justice (EACJ) or sanction its judges, but succeeded in restricting the court’s access rules and narrowing its jurisdiction. In Southern Africa, Zimbabwean President Robert Mugabe used extra-legal tactics to suspend the Southern African Developing Community (SADC) Tribunal and later pressured member states to adopt a new protocol stripping the Tribunal’s power to review complaints from private litigants.  The authors’ account of these backlashes identifies variations in the mobilization efforts of community secretariats, civil society groups and sub-regional parliaments to explain why efforts to eliminate the three courts or narrow their jurisdiction were defeated in ECOWAS, scaled back in the EACJ and largely succeeded in the SADC.

dThe Pan-African NGO devoted to promoting and protecting rights on the continent, Africa Legal Aid (AFLA), has two new publications highlighting justice in Africa. “The Seminar on Complementarity, the Hissène Habré Trial and the Evolution of Universal Jurisdiction” is a report of the proceedings of a May 2016 gathering in Dakar. In attendance were those associated with the Extraordinary African Chambers, which tried the Chadian leader, legal experts, and even the “godfather of universal jurisdiction,” Baltasar Garzón. AFLA Executive Director Evelyn Ankumah is also the editor of a new volume, The International Criminal Court and Africa: One Decade On. Many eminent legal experts and actors have contributed to the volume, including ICC judges, prosecutors and defense counsel. Read the foreword and table of contents here.

“International Justice in the News” is edited by Leigh Swigart, Director of Programs in International Justice and Society, and Lee Wilson '18.

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