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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 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.

March 2014

People in the News

hGoran Hadžić, currently on trial at the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Netherlands, filed a motion for acquittal that was recently rejected by the Trial Chamber. Mr. Hadžic is the former President of the self-proclaimed Republic of Serbian Krajina, and is charged with crimes against humanity and war crimes committed in Croatia between June 1991 and December 1993. While the Chamber decided that there was sufficient evidence to pursue a case, it stressed that the presence of evidence capable of sustaining a conviction does not mean that the Trial Chamber will necessarily enter a conviction at the end of the case. Thus far, the Court has concluded 141 proceedings out of 161 indictees, with all proceedings expected to come to a close in the near future. Read the ICTY press release.

dUnited Kingdom Supreme Court President Lord Neuberger recently weighed in on the controversy surrounding Britain’s relationships with the European Court of Justice and the European Court of Human Rights.  He is quoted as saying that the idea that European courts can overrule decisions by Parliament is “little short of offensive to our notions of constitutional propriety” and that the British are “peculiarly averse to, and particularly suspicious of, being told what they can and can’t do by pan-European bodies.” He suggested historical reasons for this sentiment, including England’s 950 years without foreign occupation. Visit The Guardian for more on the debate.

dAt the Special Tribunal for Lebanon (STL), the Trial Chamber has issued an oral ruling to join the case against Hassan Habib Merhi with the case against the four current defendants in the Ayyash et al. case. All five accused have been indicted (although none are currently in custody) for their alleged roles in the 14 February 2005 attack that killed former Lebanese Prime Minister Rafiq Hariiri and 21 others. Read the STL press release regarding the joint trial. Learn about the “trials and tribulations” of the STL, including its ground-breaking experience with in absentia trials and charges of terrorism, from STL blogger Karlijn van der Voort.

dA Haitian appeals court has decided to reinstate political violence charges against former dictator Jean-Claude “Baby Doc” Duvalier because, under international law, the statute of limitations does not apply to crimes against humanity. Criminal charges for political violence, embezzlement and corruption were filed against Duvalier in January 2011, just before he returned to Haiti from France after 25 years in exile. In January 2012, a magistrate judge upheld the financial crimes, but dismissed the political violence crimes upon the recommendation of the government prosecutor, who argued they were past Haiti’s 10-year statute of limitations. Both sides appealed.

The recent ruling by the higher court is “a significant step towards combating impunity in Haiti’s justice system,” said Mario Joseph, director of the Bureau des Avocats Internationaux. While the Haitian Constitution grants the court the power to use international law to protect victims of human rights violations, “this is the first time that a court has invoked international law to protect the poor,” Joseph said. Read more from the Institute for Justice and Democracy in Haiti.

The Presidency of the International Criminal Court (ICC) has decided to reconstitute Trial Chamber V(b) in the case The Prosecutor v. Uhuru Muigai Kenyatta, following the request of Judge Chile Eboe-Osuji (Nigeria). Judge Geoffrey A. Henderson (Trinidad and Tobago), just sworn in last December, will replace Eboe-Osuji on the bench. Trial Chamber V(b) will henceforth be composed of Judge Kuniko Ozaki (Japan), Judge Robert Fremr (Czech Republic) and Judge Henderson. As to the Kenyatta case itself, the ICC Prosecution continues to face challenges in accessing information and witnesses it believes to be pertinent to the accused’s alleged role in the post-election violence that occurred in 2007-08 in Kenya. Read more from Reuters.

dIn other ICC news, President Obama has declared that U.S. forces deployed in a UN peacekeeping mission in Mali will be protected from ICC jurisdiction, based on an agreement between the two countries as per Article 98 of the Rome Statute. This statement surprised some, since relations between the ICC and the U.S. (which is not a member of the ICC), had appeared to be improving with the extradition of Bosco Ntaganda to the ICC after he surrendered to a U.S. embassy in Kigali, as well as the U.S.’s positive vote to refer Libya to the ICC. Read more about the impact of the U.S.’s stance at Justice in Conflict.

Developments in International Justice

dThe International Court of Justice (ICJ) recently issued its judgment in the maritime dispute Peru v. Chile. Peru filed the claim at the ICJ in 2008, alleging that marine boundaries had never formally been determined by the two countries. Chile’s position was that the line had been defined in agreements signed in 1952 and 1954, which Peru argued were strictly fishing accords. In its judgment, the ICJ awarded Peru a triangle of Pacific Ocean territory covering thousands of square miles rich in fishing and other natural resources. Read the ICJ press release and a detailed analysis, complete with maps of the disputed area, in ASIL Insights.

sThe sea also featured prominently in a recent case at the World Trade Organization (WTO), European Communities –Measures Prohibiting the Importation and Marketing of Seal Products. The WTO’s ruling is particularly interesting because, as explained in ASIL Insights, “While other provisions of the WTO agreements refer to the protection of animal life and health as a legitimate objective that may justify trade restrictions, this ruling confirms that animal welfare may also be a matter of right and wrong within a particular WTO member and therefore may also fall under the rubric of public morals.” Canada and Norway have appealed the ruling, claiming that the WTO has established unnecessary restrictions that will harm their trade in seal products. The case has now been referred to the WTO Appellate Body for its determination.

fThe United States is implicated in a case currently pending before the European Court of Human Rights (ECtHR). In December 2013, hearings were held at the ECtHR in the case of two Guantánamo detainees, Abu Zubaydah and Abd al-Rahim al-Nashiri, who claim to have been tortured in Poland after an extraordinary rendition by the CIA. More recently, evidence has surfaced that the CIA paid $15 million in cash to the intelligence service of Poland in order to make use of a secret detention site there. According to The Washington Post,

“The CIA prison in Poland was arguably the most important of all the black sites created by the agency after the Sept. 11, 2001 attacks. It was the first of a trio in Europe that housed the initial wave of accused Sept. 11 conspirators, and it was where Khalid Sheik Mohammed, the self-declared mastermind of the attacks, was waterboarded 183 times after his capture. Much about the creation and operation of the CIA’s prison at a base in one of the young democracies of Central Europe remains cloaked in mystery, matters that the U.S. government has classified as state secrets. But what happened in Poland more than a decade ago continues to reverberate, and the bitter debate about the CIA’s interrogation program is about to be revisited.”

Read more about the situation in a post from Amrit Singh of the Open Society Justice Initiative.

dThe Court of Justice of the European Union (ECJ) has ruled that goods imported to the EU from online channels based outside the EU can be destroyed. The situation involved a dispute between Rolex and a Danish individual, who had bought a watch described as a Rolex from a Chinese website. In 2010 Danish customs detained the watch, believing it was a counterfeit and that it infringed the model’s copyright. After verifying that it was fake, Rolex asked the Dane to consent to the watch’s destruction. He refused to consent, arguing that he had purchased the watch legally. The case came before several Danish courts before being referred to the ECJ. Access the ruling here and read more details about the case from the World Intellectual Property Review.

dThe United Nations is calling for an inquiry into war crimes allegedly committed in Sri Lanka in 2009 during the final stages of its civil war. It is estimated that 40,000 people died during this time, most of them civilians. A report just issued by the Office of the UN High Commissioner for Human Rights describes various atrocities that took place, including sexual violence against women, as well as curtailment of fundamental freedoms continuing to this day. The government of Sri Lanka has responded in anger, claiming that the High Commissioner’s call for an international independent investigation “reflects the preconceived, politicized and prejudicial agenda which she has relentlessly pursued with regard to Sri Lanka.” Read more in a New York Times article.

dThe UN Committee on the Rights of the Child (CRC) recently met for its 65th session in Geneva. The session’s main goal was to assess States Parties’ adherence to their obligations deriving from the 1989 Convention on the Rights of the Child and its two optional protocols, including the involvement of children in conflict and child prostitution and pornography. Currently, 193 States have ratified the Convention and one or more of its optional protocols. Beginning in April 2014, individuals will have the ability to file complaints directly with the CRC concerning alleged violations of children's human rights by participating States. Read more about this development and see which States have agreed to take individual complaints here.

dThe Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) recently acquitted two high-ranking defendants, Augustin Ndindiliyimana, the former Chief of Staff of the Rwandan gendarmerie, and François-Xavier Nzuwonemeye, the former Commander of the Reconnaissance Battalion. The grounds for the acquittals included findings that the Trial Chamber erred in respect to its convictions for command responsibility.  The third defendant in the so-called “Military II” case, Innocent Sagahutu, had certain of his convictions reversed and his sentence reduced. For more details, read the ICTR press release and a summary of the judgment.

The acquittals have provoked a range of reactions. Survivors of the genocide are outraged at the acquittals, and many in Rwanda feel that the ICTR has let them down. In the legal community, some observers question the basis of the recent acquittals by the Appeals Chamber that serves both the ICTR and its sister Yugoslav tribunal. Beth Lyons, who was a defense counsel, with Chief Charles A. Taku, for Mr. Nzuwonemeye, has praised the acquittals, saying that they “demonstrate that the Prosecution's (and Kigali’s) theory of a pre-planned genocide by top military and governmental leaders is being dismantled legally– acquittal by acquittal – in the ICTR” (personal communication with IJIN editor).

While trials and appeals at the ICTR are winding down, judicial proceedings against those suspected of genocide are being pursued in other parts of the world. The former mayor of a Rwandan municipality was recently convicted in Germany for inciting genocide, and the trial of a suspected génocidaire is currently taking place in France.

Publications and Resources of Interest

dHow much is international human rights law cited in state courts in the United States? The Opportunity Agenda and the Program on Human Rights and the Global Economy of Northeastern University School of Law have just issued a comprehensive review of state court decisions and Attorneys General opinions interpreting human rights treaties, laws, and standards. The report, entitled Human Rights in State Courts 2014 argues that litigants are citing international human rights law in reference to an increasing range of topics, including environmental claims, tort cases and guardianship matters. Read more about the report here.

dA newly published article by Prof. Thomas Antkowiak (Seattle University School of Law) considers how the Sarayaku v. Ecuador judgment of the Inter-American Court of Human Rights (2012) impacts its case law on indigenous lands and resources, and then evaluates the Court’s indigenous rights jurisprudence as a whole. In “Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court” (University of Pennsylvania Journal of International Law, Vol. 35, No. 1, 2014) Antkowiak argues that when traditional lands are involved, the right to property has become the Court’s structural basis for indigenous rights.

Find details about the IACtHR’s latest case on indigenous lands, Kaliña and Lokono Peoples v. Suriname, in a press release from the Organization of American States.

dA recent op-ed by former South African president Thabo Mbeki and Ugandan scholar Mahmood Mamdani calls into question the ability of courts to end civil wars in Africa. They write:

“Since the end of the Cold War, the world has looked to the Nuremberg Trials as a model for closure in the wake of extreme violence; international criminal trials are the preferred response. This common sense should have come under scrutiny in recent months after a growing number of countries in the African Union advocated withdrawal from the International Criminal Court. Instead, the debate has focused on the motives of African leaders, not on the inadequacy of court trials as a response to politically driven mass violence … Just as the violence in South Africa in the early 1990s was a symptom of deep divisions, the same is true of extreme violence in today’s Kenya, Congo, Sudan and South Sudan. Nuremberg-style trials cannot heal these divisions. What we need is a political process driven by a firm conviction that there can be no winners and no losers, only survivors.”

Find the whole text of the op-ed here.

Special Opportunity

The Centre of Excellence for International Courts (iCourts) and the Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order (PluriCourts) are hosting a high-level summer school for PhD students and junior scholars working on international law and with a special interest in interdisciplinary studies of international law and its social and political context. They particularly welcome students and scholars who are writing up a PhD thesis or a post-doctoral project that involves an interdisciplinary study of one or more international courts. The summer school will take place from 23 to 27 June 2014 in the center of Copenhagen and is offered free of charge (excluding expenses related to travel and accommodation). Applicants will be considered on a rolling basis until 1 May 2014. For further information, click here.

International Justice in the News is edited by Leigh Swigart, Director of Programs in International Justice and Society and Kochava Ayoun '14.

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