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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 articles and publications 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.

September 2010

People in the News

KibakiKenyan President Mwai Kabaki has signed his nation’s new constitution, which features the protection of rights and decentralization of power, after its overwhelming approval in a national referendum. Some have called this the most significant political event in Kenya’s history since it gained independence from Britain in 1963.

However, the elation of the thousands-strong crowd assembled to watch the constitution-signing ceremony was dulled by the presence of Sudanese President Omar al-Bashir among the official guests. Charged by the International Criminal Court (ICC) with war crimes and genocide in Darfur, al-Bashir should have been arrested, many believe, as soon as he set foot on Kenyan soil. Kenya has both ratified and domesticated the Rome Statute of the ICC and is thus legally obligated to support its work.

The ICC has accordingly informed the UN Security Council of the situation. Read more from BBC News Africa and a call for al-Bashir’s arrest by Human Rights Watch.  For more background information on the situation, download the report from Africa Legal Aid’s April 2010 seminar entitled “The Al-Bashir Arrest Warrant: The World vs. Africa or the African Union vs. the People of Africa?”

BellemareDaniel Bellemare, Prosecutor of the Special Tribunal for Lebanon (STL), has received information from the Secretary General of Hezbollah that implicates Israel in the 2005 attack in Lebanon that killed Prime Minister Rafiq Hariri and 22 others. The STL was established in 2007 to investigate these killings and prosecute those alleged to be responsible. In response to the Hezbollah communication, Bellemare has stated, “I invite anyone who has relevant information to submit it to my office. Indeed, I welcome any information that can bring us closer to the truth. I can assure those who bring this information that it will be thoroughly assessed.” Read more from Ya Libnan and Ha’aretz.

prosecutorsProsecutors of international criminal tribunals, from Nuremberg to the present day, recently concluded the 4th International Humanitarian Law Dialogs in Chautauqua, New York. This year’s dialogs centered on the topic of “Crimes against Peace – Aggression in the 21st Century.” For biographies of the prosecutors and law scholars in attendance, visit the website of the Robert H. Jackson Center. Access the text of the 4th Chautauqua Declaration, signed by all the prosecutors, at the IntLawGrrls blogspot.

Developments in International Justice

deportationThe Inter-American Commission on Human Rights has found that certain aspects of U.S. immigration law violate the American Declaration of the Rights and Duties of Man. In its decision, the Commission held that provisions requiring mandatory deportation of a non-citizen convicted of an "aggravated felony" violate the right to family life, the rights of the child, the right to a fair trial, and the right to due process. Both the European Court of Human Rights and the UN Human Rights Committee have grounded their jurisprudence in similar cases on the right to family life, so this decision may expand the scope of human rights protections for non-citizens in the Americas. Read more details from an IntLawGrrls  blog post and a Human Rights Watch press release.

marshall islandsThe Republic of the Marshall Islands, a Micronesian nation of atolls and islands in the middle of the Pacific Ocean, is asking for clarification of the legal implications of rising ocean levels on small island nations. "At the current negotiating sessions and climate change meetings, nobody is truly addressing the legal and human rights effects of climate change," said Phillip Muller, the Marshall Islands' ambassador to the United Nations. "If the Marshall Islands ceases to exist, are we still going to own the sea resources? Are we still going to be asked for permission to fish? What are the rights that we will have? And we are also mindful that we may need to relocate. We're hoping it will never happen, but we have to be ready. There are a lot of issues we need to know the answer to and be able to tell our citizens what is happening." Read more in an article from The New York Times.

sealsThe European Court of Justice (ECJ) has temporarily suspended a ban on the sale of seal products in European countries in response to an appeal by Inuit organizations and companies selling fur and other seal products in Canada, Greenland, and Norway. European Union (EU) member states and the European Parliament decided to restrict trade in seal products on the basis of environmental groups’ arguments that the hunting of seals is cruel and inhumane.  The EU measure has also been challenged by the Canadian and Norwegian governments through complaints to the World Trade Organization. Read more from EUBusiness.

clusterThe Convention on Cluster Munitions has entered into force for the 30-plus countries that have joined the treaty since it was adopted in 2008 in Dublin, Ireland. The Convention bans the use, production, stockpiling and transfer of cluster munitions and calls for the destruction of stockpiles within eight years, clearance of cluster munition-contaminated land within 10 years, and assistance to cluster munition survivors and affected communities. On 1 August, all of the Convention’s provisions became fully and legally binding for states that have joined.

“Nations that remain outside this treaty are missing out on the most significant advance in disarmament of the past decade,” said Steve Goose, director of the Arms Division at Human Rights Watch and co-chair of the Cluster Munitions Coalition (CMC). “If governments care enough about humanitarian law and protecting civilians from the deadly effects of armed conflict, they will join immediately.” See the CMC website for more information and a list of countries that have ratified the treaty.

The Caribbean nation of Saint Lucia has become the 113th State Party to ratify the Rome Statute of the International Criminal Court. Read the court press release here.

Articles and Publications of Interest

ICRCThe International Committee of the Red Cross (ICRC) has launched a new database containing a comprehensive study on customary international humanitarian law (IHL). This database is an online version of the Study on customary international humanitarian law, conducted by the ICRC and published by Cambridge University Press in 2005.

The database is divided into two parts:

  • Part 1, “Rules,” offers a comprehensive analysis of the customary rules of international humanitarian law identified by the Study and considered to be applicable in international and non-international armed conflicts. Nevertheless, the Study does not purport to offer an exhaustive assessment of all customary rules in this field.
  • Part 2, “Practice,” contains the underlying practice. For each aspect of international humanitarian law covered, it provides a summary of relevant state practice including military manuals, legislation, case-law and official statements, as well as practice of international organizations, conferences and judicial and quasi-judicial bodies.

Despite being a discrete subject of public international law, IHL also intersects with human rights law and international criminal law. As the nature of warfare and weapons change, IHL will develop stronger ties to human rights law and other branches of international law.

Access the customary IHL database here.

fact findingDr. Nancy Amoury Combs of William and Mary Law School has just published Fact-finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press 2010). The book explores international criminal fact-finding from empirical, conceptual, and normative perspectives. After reviewing thousands of pages of transcripts from various international criminal tribunals – including the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and the Special Panels for East Timor – the author reveals that their trials have encountered numerous and severe fact-finding impediments that substantially impair the tribunals’ ability to determine who did what to whom.

These impediments have received virtually no publicity, let alone scholarly treatment, and Combs asserts that they are deeply troubling not only because they raise grave concerns about the accuracy of the judgments currently being issued but because they can be expected to similarly impair the next generation of international trials that will be held at the International Criminal Court. A summary of Combs’ argument may be found in her 2009 article “Testimonial Deficiencies and Evidentiary Uncertainties in International Criminal Trials” in the UCLA Journal of International Law and Foreign Affairs (Vol. 14, Number 1, Spring 2009).

Cons CourtConstitutional Rights in Two Worlds: South Africa and the United States, authored by Mark Kende of Drake University (Cambridge University Press 2009), is now available in paperback format. The South African Constitutional Court has issued internationally prominent decisions abolishing the death penalty, enforcing socio-economic rights, allowing gay marriage and promoting equality. These decisions are striking given the country’s Apartheid past and the absence of a grand human rights tradition. By contrast, the U.S. Supreme Court has generally ruled more conservatively on similar questions.

This book examines the Constitutional Court in detail to determine how it has functioned during South Africa’s transition and compares its rulings to those of the U.S. Supreme Court on similar rights issues. The book also analyzes the scholarly debate about the Constitutional Court taking place in South Africa. It furthermore addresses the arguments of those international scholars who have suggested that constitutional courts do not generally bring about social change. In the end, the book highlights a transformative pragmatic method of constitutional interpretation – a method the U.S. Supreme Court could employ. Read some reactions to the book in a blog post by the American Constitution Society.

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