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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.

July 2010

People in the News

ICJ benchJudges Thomas Buergenthal (US) and Shi Jiuyong (China) of the International Court of Justice (ICJ) are both retiring prior to the end of their judicial terms, 2015 and 2012 respectively. Buergenthal has served on the ICJ bench since 2000 and Shi since 1994. According to the court’s statute, the United Nations General Assembly and Security Council will elect two judges of the same nationality to serve out the remainder of the departing judges’ terms. These special elections will take place later this year.  See an American Society of International Law Insight for details on election procedures at the ICJ.Two women have been nominated to replace Buergenthal and Shi – Joan Donaghue, Principal Deputy Legal Adviser at the US Department of State, and Xue Hanqin, Chinese Ambassador to the Association of Southeast Asian Nations.  If elected, they would be only the 2nd and 3rd women to serve on the ICJ bench since the court’s establishment in 1948.


ErlinderPeter Erlinder, defense lawyer at the International Criminal Tribunal for Rwanda (ICTR), has been released from jail in Kigali after being arrested on 28 May by Rwandan authorities. Erlinder is currently defending opposition leader Victoire Ingabire against the same charge he himself now faces - a law prohibiting "Genocide Ideology," speech critical of the official version of the 1994 Rwandan Genocide. The Republic of Rwanda issued a statement claiming that Erlinder "continually engaged in conspiracy theories and denial surrounding the circumstances of the genocide [and] has promulgated this dangerous and distorted fiction over many years." Calls for his release came from many quarters, including the US government, the American Bar Association, the International Criminal Defence Attorneys Association, as well as the ICTR itself. It was only after Erlinder was found unconscious in his cell, however, that he was granted bail on medical grounds. Read more about Erlinder’s experience from the Associated Press and the Minneapolis-St. Paul Star Tribune.


kamandaJustice Jon Kamanda (Sierra Leone, BIIJ 2009 & 2010) has been reelected as President of the Special Court for Sierra Leone for a term of one year. Justice Emmanuel Ayoola (Nigeria, BIIJ 2004) has been re-elected as Vice President. Justice Ayoola previously served as President of the Special Court from 2004-2005. Read the press release, and watch the trial of former Liberian President Charles Taylor, at the website of the Special Court. 


suspectsAbdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, both suspected of having committed war crimes in Darfur, Sudan, have arrived voluntarily at the International Criminal Court (ICC). The two suspects were charged with three counts of war crimes allegedly committed during a September 2007 attack that killed 12 African Union peacekeepers in northern Darfur. The two Sudan rebel leaders urged other war crimes suspects to come forward and face justice. For more details on their case, see the ICC press release.


Developments in International Justice

whaleAustralia will ask the International Court of Justice (ICJ) to mediate its dispute with Japan over whaling in the Antarctic. The countries allegedly disagree about the practice, Australia calling it a “violation of an international ban on commercial whaling,” and Japan arguing that “the hunt is carried out for scientific research purposes.” Learn more about the case from Environment News Service. Link to the ICJ press release here.


Delegates to the Review Conference of the Rome Statute of the International Criminal Court (ICC), held recently in Kampala, Uganda, decided that individual leaders who plan and launch military aggression will in the future be held accountable before an international court of law. Most of the 111 States Parties, and many non-party States attending as observers, including the United States, joined the deliberations in Kampala, which also included a series of stocktaking discussions in which delegations considered key areas of international justice. Read more about the new crime of aggression, and view the remarks of members of the US delegation to the conference, from the American Society of International Law. Click here for an op-ed by Kenyan Nobel Laureate Wangari Mathai on the importance of the ICC for Africa. 


photosThe International Criminal Tribunal for the former Yugoslavia has issued a major judgment, in Prosecutor v. Popović et al., against seven former Bosnian Serb Army members for their involvement in the Srebrenica massacre in July 1995. The Tribunal found them guilty of several crimes, including genocide, extermination and persecution (as crimes against humanity), murder (as violation of the laws or customs of war and as crimes against humanity), and inhuman acts (forcible transfer). The long judgment details the gruesome and horrific crimes committed by the defendants in July 1995. While the Tribunal acknowledged that the relocation of mass graves made the body count imprecise, it estimated that between 5,336 and 7,826 Bosnian Muslim men were killed in the “murder operation” by the Bosnian Serb Army, under the orders of Radovan Karadžić (now himself on trial). Click here for a summary of the judgment (approximately 15 pages). To read the ICTY press release and to download the full judgment, click here.  


flotillaTwo Belgian lawyers intend to charge 14 Israeli politicians - including Ehud Olmert, Ehud Barak, Tzipi Livni and Matan Vilnai - for crimes against humanity and war crimes allegedly committed during the Israeli bombardment of Gaza in January 2009. The lawyers say they are acting on behalf of 13 Palestinian victims from Gaza, and an additional man - Anouar El Okka, a Belgian doctor of Palestinian origin. The current charges would be brought against the Israeli leaders using the principle of universal jurisdiction. Belgian law states that there must be a connection between the crimes and a Belgian citizen in order to successfully prosecute under universal jurisdiction, something supplied by El Okka. Read more from Haaretz.


Ecuador is the first country in the world to ratify the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights which allows individuals and groups within the country to seek justice from the United Nations should these rights – which include the rights to adequate housing, food, water, health, work, social security and education - be violated by their government. The Optional Protocol was adopted by the UN General Assembly by consensus on December 10 2008 and was opened for ratification in September 2009. The complaint mechanism will become operational after 10 countries ratify the Optional Protocol. Read more from Amnesty International.


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The United States and the European Union (including its Member States) have issued a declaration detailing several measures necessary in “forging a durable framework to combat terrorism within the rule of law.” 
The declaration emphasizes the need to ensure that all measures taken by the two parties are “in accord with . . . fundamental values and with full respect for the sovereignty of nations and the rule of law.” Notably, both parties reaffirmed their commitment “to implement prohibitions on torture, as well as on cruel, inhuman and degrading treatment and punishment.” Also significant is the parties’ commitment to ensure that terrorist suspects receive a fair and effective trial, “within a legal framework that provides for meaningful due process rights.” Finally, the declaration stresses the need to avoid racial, ethnic, and/or religious discrimination in combating terrorism. Click here for the document (approximately 3 pages).


ECHRThe European Court of Human Rights (ECHR) has ruled in Schalk & Kopf v. Austria that there is no requirement under the European Convention on Human Rights to grant same-sex couples access to marriage. 

When a male Austrian couple was denied the right to marry, they asked the ECHR to declare that the Austrian law and jurisprudence on the issue were in violation of the applicants’ Article 12 (right to marry) and Article 14 (nondiscrimination) Convention guarantees. 
The Court acknowledged that the Convention is a “living instrument which had to be interpreted in present-day conditions;” however, it stopped short of recognizing a right to marry for same-sex couples. In particular, the Court concluded that while “the institution of marriage has undergone major social changes since the adoption of the Convention . . . there is no European consensus regarding same-sex marriage. At present no more than six out of forty-seven Convention States allow same-sex marriage.” Read the ECHR press release and watch a webcast of the hearing. 


Articles and Publications of Interest

badNew York University Professor Philip Alston, the United Nations Special Rapporteur on extrajudicial, summary, or arbitrary executions, presented ten reports in early June during his annual presentation to the United Nations Human Rights Council in Geneva.  Alston is mandated by the UN to investigate allegations of unlawful killings in all countries around the world. The reports included his annual report, which assesses the key activities over the six years of his mandate, proposes wide-ranging reforms, and reviews the law and policy of unlawful killings. He also presented a report of all the communications he engaged in with Governments over the last year, and three in-depth reports on targeted killings, election-related killings, and police accountability. 

In his statement to the Council, Alston began by referring to his many years of work promoting the importance of independent investigations into unlawful killings, and asserted the “compelling need for an objective and impartial international investigation” into the attack on the humanitarian flotilla off Gaza, as well as into “allegations that as many as 30,000 persons were killed in Sri Lanka in the closing months of the conflict.”

In his report on targeted killings, Alston acknowledged that they may be lawful in the limited context of armed conflict, but he strongly criticized the use of such killings “far from the battle zone”, and the lack of transparency and accountability in targeted killings operations.  He especially questioned the use of CIA-operated drones, because the US does not disclose “when and where the CIA is authorized to kill, the criteria for individuals who may be killed, how it ensures killings are legal, and what follow-up there is when civilians are illegally killed who is killed, why the attacks were launched.” 

All of these reports, and the accompanying press statements and extensive media coverage, are available at www.extrajudicialexecutions.org.


wclThe War Crimes Research Office of American University’s Washington School of Law has published its latest report in the series, Early Issues before the International Criminal Court. Titled “The Case-Based Reparations Scheme at the International Criminal Court,” the report aims first to highlight the need for the Court to establish principles relating to the operation of this scheme outside of the context of any single case, as envisioned under the Rome Statute. Second, the report contains a number of proposals for the Court to consider when drafting its principles on case-based reparations, including those relating to issues of timing, the definition of "victim" for purposes of reparations, forms of reparations, the use of experts in processing claims and determining the substance of reparations awards, and the role of the Trust Fund for Victims in relation to case-based reparations. Download all reports in the series here.
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Read two new articles on the legal doctrine of “joint criminal enterprise,” the extended form of which (JCE III), was recently rejected in a ruling by the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC). JCE III was established in the famous Tadić case at the International Criminal Tribunal for the former Yugoslavia (ICTY).

Professor Michael Scharf of Case Western Reserve University, in “Seizing the ‘Grotian Moment’: Accelerated Formation of Customary International Law in Times of Fundamental Change,” examines the notion of a paradigm-shifting development in which new rules and doctrines of customary international law emerge with unusual rapidity and acceptance. The article makes the case that the universal and unqualified endorsement of the Nuremberg Principles by the U.N. General Assembly in 1946 resulted in accelerated formation of customary international law – a “Grotian Moment” – including the mode of international criminal responsibility now known as Joint Criminal Enterprise (JCE) liability. As such, the ECCC may properly apply JCE to crimes that occurred in 1975-1979, twenty years before the modern international tribunals recognized JCE as customary international law.

Wolfgang Schomburg, a former ICTY judge, advances a different view of the doctrine in “Jurisprudence on JCE – Revisiting a Never-ending Story.” He notes that “in the recent past, hardly another topic in international criminal law has divided the minds of academics and practitioners alike as heavily as this dogmatic figure created for the purposes of imposing individual criminal responsibility in situations of mass atrocities and collective criminal activity. This holds true especially in regard to the third category of the doctrine, the so-called extended JCE (JCE III).” Judge Schomburg believes that the entire doctrine of JCE is an unnecessary and even dangerous attempt to describe a mode of liability not foreseen in the Statutes of today’s international tribunals.

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