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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.

May 2011

People in the News

cCherif Bassiouni, an Egyptian human rights expert and law professor at De Paul University in Chicago, has been appointed by the United Nations Human Rights Council to lead a probe into suspected crimes against humanity in Libya. He will be joined by Jordanian lawyer, Asma Khader, and Canadian Philippe Kirsch, who is a former judge and president of the International Criminal Court. Read about the initial meetings of Bassiouni and his team with Libyan officials in a Boston Globe article.

One of the crimes that Bassiouni’s team will almost certainly encounter is rape as a tool of war. Read a commentary by Kelly Askin of the Open Society Justice Initiative about sexual violence in Libya and how thinking about rape in the context of conflict has evolved with the work of international criminal tribunals since the 1990’s.

dThe case of Kaing Guek Eav (known as Duch), the first accused to be tried and convicted by the Extraordinary Chambers in the Courts of Cambodia, is currently under appeal. His defense counsel says, “We do not challenge the ECCC’s jurisdiction. The ECCC has the competence to try the senior leaders [of the Khmer Rouge]. But we question the prosecution’s method of depicting Duch as one of the most responsible for the crimes committed.” Read more in an article from KI Media.

oNow that former President of Côte d’Ivoire, Laurent Gbagbo, has been captured and forced to cede power to his political opponent, Alassane Ouattara, how will his violent attempt to retain power be viewed? In early April, International Criminal Court Prosecutor Luis Moreno Ocampo suggested that an investigation was called for. Later commentary has suggested that there may be wrongs worthy of investigation on both sides. A New York Times op-ed declares, “Allies of both Mr. Gbagbo and Mr. Ouattara are accused of committing atrocities in the fighting. All credible incidents must be investigated and perpetrators brought to justice.” The establishment of a truth and reconciliation commission in Côte d’Ivoire is also being considered, as reported by the International Justice Tribune.

kJudge Ekaterina Trendafilova of the International Criminal Court made news in Commonwealth countries across the globe by suggesting that Kenyan attorneys dispense with their traditional horsehair wigs the next time they appear in the courtroom. “This is not the dress code of this institution,” Trendafilova said. “In this quite warm weather maybe it will be more convenient to be without wigs,” she added with a smile.

Newspapers in Jamaica and India quickly picked up this story, no doubt thinking about their own associations with this British practice. A Kenyan blog declared, “Nothing screams 'legacy of colonialism' quite like a black guy in a white wig!” A Justice in Conflict blog post suggested that working at the ICC might be associated with hair loss…

Developments in International Justice

nThe Parliamentary Assembly of the Council of Europe (COE) has adopted a new resolution, Resolution 1805, that addresses the “large-scale arrival of irregular migrants, asylum seekers and refugees on Europe’s southern shores.” This resolution has been heralded as forward-looking as it calls for the development of long-term solutions to the causes of migration from North Africa, which include economic deprivation, lack of democracy, and conflict. Recent events in Tunisia, Egypt, and Libya have created an increased flow of migrants to southern Europe, not all of who are nationals of those countries. Resolution 1805 reminds member states of the Council of Europe, among many other points, that they are not permitted to refuse boats carrying migrants who might be eligible for protection under international law. Read the full text of Resolution 1805 here.

Despite the COE’s new resolution, France and Italy are pushing the European Union to temporarily reestablish border controls among member states – which were abolished by the Schengen system in 1995 – in response to what they view as an overwhelming influx of migrants from revolutionary North Africa. Read more from The Guardian.

iThe Sri Lankan government has rejected the findings of a special United Nations panel charged with advising Secretary-General Ban Ki-moon on "issues of accountability" related to the end of Sri Lanka's quarter-century war with the separatist Tamil Tigers. The panel found that Sri Lankan forces were responsible for killing tens of thousands of civilians, and said there is "credible evidence" that war crimes were committed by both sides. The UN cannot order an international probe into the matter, however, without Sri Lanka’s consent or the go-ahead from member states. Sri Lanka claims that the report will compromise peace efforts in the country. Read more from Reuters.

mDo contemporary European governments bear responsibility for illegal actions carried out by the administrative forces of their former colonies? That is the central question being asked in a proceeding before the High Court of the UK. During the 1950’s anti-colonial “Mau Mau rebellion” in Kenya, many people of the same ethnic group as the rebels, the Kikuyu, were detained in camps. President Barack Obama's grandfather, Hussein Onyango Obama, was one of these detainees. Some of those detained were subject to torture and other violations of personal integrity.

Four of these detainees, now in their 70’s and 80’s, have brought a suit against the UK government, asking for an apology and reparations for what they underwent – castration, sexual violation, and other extreme abuses. The UK government acknowledges that the abuses occurred. Many of them first came to light, in fact, through the research of Harvard University historian Caroline Elkins and the resulting 2005 publication of Imperial Reckoning: The Untold Story of Britain's Gulag in Kenya. But the UK claims that it passed on any responsibility for such acts to the new Kenyan government upon independence in 1963. Read more about the case from the Kenya London News and an editorial from The Guardian that urges the UK government to take responsibility and apologize.

gThe International Court of Justice (ICJ) has rejected a claim by the Republic of Georgia that Russia carried out ethnic cleansing in regard to ethnic Georgians in the territories of Abkhazia and South Ossetia. Tbilisi claimed that Russia had violated the Convention on the Elimination of All Forms of Racial Discrimination through interventions in Georgia’s secessionist territories during three separate phases starting from the early 1990s up until the end of hostilities between the two countries in August 2008. The ICJ ruled that it had no jurisdiction to decide the case – because Georgia had not raised these issues directly with Russia before taking the issue to the ICJ – but it made no decision on the merits of the accusation.

The ICJ was far from unanimous in its ruling. In a separate opinion, five of the Court’s members, including ICJ President Hisashi Owada, expressed their strong disagreement with the decision on two key points. These judges jointly argued that the threshold set by the Court both with regard to the timing of when a dispute emerged, as well as the need for pre-trial bilateral negotiations, was unjustifiably high. Read more about the case from the Central Asia-Caucasus Institute and Opinio Juris. Download the ICJ judgment here

sThe participation of victims is a new feature in international criminal trials. While victims have not had the opportunity to take part officially in proceedings at the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, or the Special Court for Sierra Leone, they have an officially sanctioned role at the International Criminal Court, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon. The Pre-Trial Judge of the Lebanon Tribunal, Daniel Fransen (BIIJ 2010) recently explained how victims’ participation works in his institution. View the video clip here.

Articles and Publications of Interest

bThe International Center for Ethics, Justice and Public Life of Brandeis University has just published its report on the Brandeis Institute for International Judges 2010. Organized around the theme “Toward an International Rule of Law,” BIIJ 2010 hosted 16 judges from 13 international courts and tribunals last July in Salzburg, Austria. This was the seventh Institute to be organized since 2002.

Topics under discussion included the fairness and accessibility of international judicial institutions, the impact of international justice, and the implications of diversity for an international rule of law. The Institute also continued a tradition of examining ethical issues faced by members of the international judiciary.

The BIIJ 2010 report, as well as reports of all past institutes, may be downloaded here. In future issues of International Justice in the News, individual sessions of BIIJ 2010 will be featured. To request a hard copy of the BIIJ 2010 report, please contact Leigh Swigart, Director of Programs in International Justice and Society.

sThe Open Society Institute Justice Initiative has issued a paper examining the definition of a stateless person under international law and the implications this definition has for victims of statelessness around the world. De Jure Statelessness in the Real World: Applying the Prato Summary Conclusions is based on the discussions held in Prato, Italy in May 2010 under the auspices of the United Nations High Commissioner for Refugees.

The paper demonstrates that most stateless populations that the Justice Initiative works with – including those in Côte d’Ivoire, the Dominican Republic, Kenya, and Mauritania – have links with only one state, the one where they were born and physically reside. The Justice Initiative considers these populations to be de jure stateless on the basis that the states in question do not consider these resident populations as their nationals.

Read more about the paper and download the full text here.

eThe director of the International Humanitarian Law Institute, Professor Peter Erlinder, has recently published a book-length research work through the DePaul University Law School Journal for Social Justice, "The UN Security Council Ad- Hoc Rwanda Tribunal: International Justice or Juridically-Constructed 'Victors' Impunity'?" Prof. Erlinder, who was briefly arrested last year by Rwandan President Paul Kagame for the alleged crime of “genocide denial,” claims to have evidence that the current Rwandan government became the dominant military power in the country more than a year before the Rwandan Genocide, with outside assistance from Uganda, the UK and the Pentagon. Read more about the work and download the full text from France-Rwanda Tribune. Read the transcript of an interview with Prof. Erlinder about the publication here.

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