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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.
People in the News
There was a lack of consensus among SCSL judges about the decision to refuse the brief, however. Justice Julia Sebutinde dissented from the majority opinion in this matter, noting “To ultimately strike out on a procedural basis [Taylor’s] final trial brief that essentially contains his defense to the charges in the indictment is to deny him his fundamental right to defend himself.” The Defense’s request to appeal this decision has been granted and now lies with the SCSL Appeals Chamber. Mr. Taylor’s trial is adjourned indefinitely until the Appeals Chamber delivers its verdict.
If the United States government does not take the initiative to investigate former President George W. Bush and other senior officials for authorizing the torture of suspected terrorists, then other parties will. This is the lesson to be drawn from recent criminal complaints filed with a Swiss prosecutor prior to a visit by Bush to Geneva. The New York-based Center for Constitutional Rights and the European Center for Constitutional and Human Rights issued what they called a preliminary "indictment" to prosecute Bush abroad for the alleged torture of two torture victims held in Guantánamo. As Swiss law requires an alleged torturer to be on Swiss soil before a preliminary investigation can be opened, the complaint was dropped when Bush cancelled his trip due to “security concerns.” The Paris-based International Federation for Human Rights (FIDH) stated, "This is our way of putting him on notice." Read more from Harpers.
The return of Jean-Claude “Baby Doc” Duvalier to Haiti, after 25 years of exile, has led to calls for his prosecution. During his tenure as Haiti’s leader from 1971 to 1986, Duvalier commanded a network of security forces that committed serious human rights violations, including arbitrary detentions, torture, "disappearances," rape, and summary executions. Thousands of Haitians were victims of extrajudicial killings or otherwise died from torture or inhuman detention conditions. The Office of the UN High Commission for Human Rights has already offered to assist in his prosecution. Read more here. For background and updates on the case, see the website of the Institute for Justice and Democracy in Haiti.
Developments in International Justice
Requests have come from diverse quarters to hold Libyan leaders accountable for violence during the anti-government demonstrations and to take measures to ensure peace on Libyan territory. The Egyptian Initiative for Personal Rights, Human Rights Watch, and INTERIGHTS have asked the African Commission for Human and Peoples’ Rights to take immediate measures to end the massive human rights abuses. Read their appeal here. Meanwhile, Amnesty International and the Arab Center for the Independence of the Judiciary and the Legal Profession have called upon the UN Security Council (SC) to maintain peace and security in compliance with Chapter VII of the UN Charter, and to investigate crimes that have left hundreds of protesters dead.
The SC has responded swiftly and unhesitatingly. Deploring what it called “the gross and systematic violation of human rights” in strife-torn Libya, the Council has demanded an end to the violence and decided to refer the situation to the International Criminal Court while imposing an arms embargo on the country and a travel ban and assets freeze on the family of Muammar Al-Qadhafi and certain Government officials. Read the details in a UN press release.
Also, in an unprecedented move, the UN Human Rights Council acted to suspend Libya’s membership from the council because of gross human rights violations. Read more from Relief Web.
Military intervention in Libya has not yet been proposed. Such an action brings with it special considerations, according to former UN Under-Secretary-General for Legal Affairs Hans Corell. Download his op-ed from Expressen, in which he addresses this topic.
The Inter-American Commission on Human Rights has granted a stay on the deportation of Haitians from the United States under current circumstances of cholera, social unrest, political chaos, and general post-earthquake disorder. The order, which applies only to Haitians who are sick or have family ties in the U.S., was requested by a coalition of human rights organizations, immigrant advocacy groups, and law schools. Read more about the coalition’s efforts from the University of Miami School of Law.
In 2004, the Avena decision of the International Court of Justice (Mexico v. United States of America, 31 March 2004) found that the U.S. was in violation of the Vienna Convention on Consular Relations (VCCR) for its failure to notify detained foreign nationals of their right to contact their consulate. The ICJ further found that, in order to be in compliance with the treaty, the United States had to “allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the VCCR.”
Most observers would agree that U.S. compliance with the Avena decision has been slow and uneven. Progress has been made, however, through the recent Gautreaux decision of the Massachusetts Supreme Judicial Court, incidentally the oldest continuously functioning appellate court in the Western Hemisphere. The judgment (Commonwealth v. Gautreaux, 458 Mass. 741, 20 January 2011) notes:
“Although a decision of the ICJ is not binding on this court, it is entitled to respectful consideration … The ICJ is the judicial organ designated to resolve disputes regarding implementation of the Vienna Convention, and as signatory to the Optional Protocol, the United States agreed to be bound by its decisions. We acknowledge and accept the conclusion of the ICJ regarding the obligation that Art. 36 creates when clear violations of its notice protocols have been established, that is, to provide some process by which the soundness of a subsequent conviction can be reviewed in light of the violation.”
The Botswana Court of Appeal has overturned an earlier High Court decision allowing the government to deny an indigenous population access to water on its ancestral lands. Botwana’s treatment of the so-called Bushmen, who live in the harsh Kalahari Desert, has been widely condemned by the African Commission on Human and Peoples’ Rights and the UN Special Rapporteur in Indigenous Peoples. Learn more about the case and the long lead up to this legal victory in a San Francisco Bay View article.
In two separate cases – Jularić v. Croatia and Skendžić and Krznarić v. Croatia – the European Court of Human Rights has unanimously found that Croatia did not make adequate investigations into the disappearance and deaths of war crimes victims in 1991. The Court established that although the authorities cannot be held legally accountable before the ECHR for deaths and enforced disappearances – as they occurred before Croatia joined the European Convention on Human Rights – they still had the obligation to investigate those crimes, which they failed to fulfil. These judgments create “a significant precedent, allowing victims of war crimes committed during the wars in the former Yugoslavia to seek justice before the ECHR if states do not carry out adequate investigations into those crimes.” said Marek Marczynski, Amnesty International’s expert on Croatia. Read full details of the cases from Human Rights Europe.
Judges in eastern Democratic Republic of the Congo (DRC) have found a high-ranking commander guilty of conflict-related sexual violence. The court in Baraka has sentenced Lt. Col. Kibibi Mutware to 20 years in jail. He was found guilty of crimes against humanity for sending his troops to rape, beat and loot from the population of Fizi on New Year's Day. Judges also sentenced three officers serving under the commander to 20 years and five soldiers to between 10 and 15 years.
“The sentences send a strong signal to all perpetrators in the DRC and beyond that conflict-related sexual violence is not acceptable and will not be tolerated. It also shows that accountability for sexual violence is possible,” said the UN Secretary-General's Special Representative on Sexual Violence in Conflict, Margot Wallström.
Kelly Askin of the Open Society Justice Initiative argues that a domestic trial like this one in the DRC is proof that the International Criminal Court’s principle of “complementarity” is working. “It is the primary responsibility of national jurisdictions to enforce the law and punish those who break local and international laws, and only when states are truly unable or unwilling to investigate or prosecute should internationalized courts step in,” Askin writes in the IntLawGrrls blog.
She notes that “Kibibi reportedly assured his troops before the orchestrated attack on New Years Day that they wouldn't go to The Hague for this.” They must have been stunned to find themselves on trial instead in a local court, she continues. “If word about the court is spread around the country, it could have an enormous impact on deterring future crimes, now that the rule of law is finally being enforced domestically, to at least some extent, in parts of eastern DRC.” Read the entire blogpost here.
Articles and Publications of Interest
A recently published volume, edited by Adam Horowitz, Lizzy Ratner, and Philip Weiss, brings into new focus the results of the UN Human Rights Council’s investigation of the 2008-09 Israeli attacks on Gaza. The Goldstone Report: the Legacy of the Landmark Investigation of the Gaza Conflict (Nation Books 2010) provides an edited version of the original report as well as essays from a wide range of leading experts, activists, and journalists. According to the publication’s website, “The Goldstone Report is a corrective to the relentless attacks the original received and a strenuous and informed effort to put that report in its proper context.” Learn more at the publication’s website. Read Naomi Klein’s introduction to the book, as adapted for an article in The Nation, here.
The United States has officially endorsed the Declaration on the Rights of Indigenous Peoples, joining three other powerful countries with significant indigenous populations that initially denied their support – Canada, Australia, and New Zealand.
This important instrument is analyzed in depth in a new publication, Reflections on the UN Declaration on the Rights of Indigenous Peoples, edited by Stephen Allen and Alexandra Xanthaki of Brunel University (Hart Publishing 2011). This volume offers a comprehensive institutional, thematic and regional analysis of the Declaration. In particular, it explores the Declaration's normative resonance for international law and considers the ways in which this international instrument could catalyze institutional action and influence the development of national laws and policies on indigenous issues. Read more about the publication here.
A recent publication – edited by Rosalind Shaw, Lars Waldorf, and Pierre Hazan - raises questions about the ability of transitional justice mechanisms, formulated according to international norms, to bring about reconciliation, closure, and the end of violence. Localizing Transitional Justice: Interventions and Priorities after Mass Violence (Stanford University Press 2010) “traces how ordinary people respond to—and sometimes transform—transitional justice mechanisms, laying a foundation for more locally responsive approaches to social reconstruction after mass violence and egregious human rights violations.” Read more about the volume here.
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