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.

April 2016

Featured News

dHarvard University Law School Dean Martha Minow was recently awarded the Joseph B. and Toby Gittler Prize at Brandeis University, which recognizes outstanding and lasting scholarly contributions to racial, ethnic and/or religious relations. Minow’s numerous scholarly works include her 1998 book Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence, a groundbreaking work offering pathways of hope for divided societies. Her most recent publication is a co-edited volume on the International Criminal Court, The First Global Prosecutor: Promises and Constraints. Upon receiving her prize at Brandeis, Minow delivered a keynote address entitled “Bystanders, Upstanders, and Justice,” a full video of which is available here.

People in the News

Elizabeth Andersen has received the prestigious Prominent Women in International Law award from the American Society of International Law’s (ASIL) Women in International Law Interest Group (WILIG). Andersen currently serves as Director of the American Bar Association Rule of Law Initiative, a $48 million international development aid project which “promotes justice, economic opportunity, and human dignity through the rule of law” in approximately 60 countries. At the WILIG award luncheon, Andersen participated in a discussion entitled “25 Years Later: A Discussion of ‘Feminist Approaches to International Law’,” revisiting the influential 1991 American Journal of International Law article by Hilary Charlesworth, Christine Chinkin and Shelley Wright.

Three individuals connected to the International Criminal Court (ICC) have recently made the news:

dAhmad Al Faqi Al Mahdi has become the first accused before the ICC to plead guilty to the charges brought against him. Al Mahdi has been accused of targeting monuments dedicated to religion, historical heritage, and cultural heritage in Timbuktu, Mali between 30 June and 11 July 2012. This case had been the first of its kind, focusing solely on the war crime of intentionally attacking “cultural property.” In a written statement the ICC Prosecutor, Fatou Bensouda, indicated that the case will be referred to the Trial Chamber, where the judges will decide how to proceed given the accused’s intention to plead guilty.

dJean-Pierre Bemba, former rebel leader in the Democratic Republic of Congo (DRC), has been found guilty by the ICC on two counts of crimes against humanity and three counts of war crimes. This is the first time that the Court has found an accused guilty of rape as a weapon of war. BBC regional analyst Maud Jullien commented that this decision is significant for international justice because it both establishes rape as a serious crime and underscores that commanders are responsible for the actions of their subordinates, even if their crimes take place in another country. In this case, Bemba was found guilty of grave crimes committed in the Central African Republic by troops he deployed there, while he was the leader of the Movement for the Liberation of Congo in the DRC. Read the ICC press release and download the full judgment here

dSam Jichi Mohammed, known by his nickname “Sam-the-African,” caught the attention of ICC watchers when he testified in the case of Laurent Koudou Gbagbo and Charles Blé Goudé. Although a staunch supporter of Gbagbo, former president of Côte d’Ivoire, Sam-the-African was called as a prosecution witness. When the witness gave unexpected answers to questions by lead prosecutor Eric MacDonald about the nature of certain 2010 presidential campaign slogans, MacDonald indicated that he wanted to declare the witness “hostile” for refusing to cooperate and give proper responses. The situation with Sam-the-African recalls the contentious issue before the ICC of whether or not to allow “witness proofing,” where parties meet with their witnesses shortly they testify in order to review their evidence. Although the International Bar Association 2013 Programme Report described witness proofing as “[facilitating] a more accurate, complete and efficient testimony,” the practice was prohibited by the Court in the Lubanga, Katanga, Ngudjolo, and Bemba cases.

Important news about a number of persons has also emerged in recent days from the International Criminal Tribunal for the former Yugoslavia (ICTY) and its successor institution, the Mechanism for International Criminal Tribunals (MICT).

dThe ICTY announced the conviction of former President of Republika Srpska, Radovan Karadžić of genocide, crimes against humanity, and war crimes on 24 March, sentencing him to 40 years’ imprisonment. The Tribunal found that Karadžić was responsible for the massacre of 7,000 Muslim men and boys in Srebrenica during the armed conflict in Bosnia and Herzegovina between 1992 and 1995, as well as more than 5,000 civilian deaths during the siege of Sarajevo. However, the Tribunal was unable to find beyond a reasonable doubt that there was genocidal intent for crimes committed in seven other municipalities in Bosnia. Victims of the atrocities in Bosnia have waited decades for Karadžić to be brought to justice, wrote Human Rights Watch. “The Karadžić verdict sends a powerful signal that those who order atrocities cannot simply wait out justice.” But reactions to the conviction in The Balkans are not entirely uniform, reports The BBC; to some ethnic Serbs, Karadzic is still considered an important national leader.

Source: Robin Van Lonkhuijsen/
European Pressphoto Agency
There was an unexpected sideshow on the day the Karadžić verdict was announced – the arrest of French journalist Florence Hartmann outside the ICTY premises, where she awaited the historic decision along with a group of Bosnian victims. President Meron of MICT ordered her detention based on an outstanding warrant of arrest issued in 2011 by the ICTY. Hartmann served as the spokesperson of ICTY Prosecutor Carla del Ponte from 2000 to 2006, after which she published Paix et châtiment, a book in which she allegedly revealed confidential information regarding Serbia’s involvement in the 1995 Srebrenica massacre. The Tribunal convicted the former journalist of Le Monde of contempt of court, and ordered her to pay €7,000, a fine which was converted to a seven days’ imprisonment sentence after her failure to pay. After being locked up in the ICTY detention facility, Hartmann was released on 29 March after serving two-thirds of her week-long sentence. Read more from Balkan Insight.

dIn late-breaking news, the ICTY has announced its verdict in the case of  Vojislav Šešelj, President of the Serbian Radical Party and a former member of the Assembly of the Republic of Serbia. Šešelj has been acquitted on all charges of the indictment, with a majority decision on eight counts and a unanimous decision on one count. An crucial point argued in the judgment is that there was not sufficient evidence to demonstrate that Šešelj had a “hierarchical responsibility” over volunteers that he encouraged to join the Serb army. According to the presiding judge on the case, Jean-Claude Antonetti, “One of the key findings of the [court] was to note that while Vojislav Šešelj may have had a certain amount of moral authority over his party’s volunteers, they were not his subordinates when they were engaged in military operations… The...findings do not by any means presume to underestimate, and even less to conceal, the crimes committed in different localities in Croatia and [Bosnia], in which the volunteers deployed by Vojislav Šešelj or his party may have taken part or have been indirectly involved. Read more from The Guardian.

Pres. Meron at BIIJ 2015
Finally, Theodor Meron has been appointed to two more years as MICT president. According to the MICT press release, “the United Nations Secretary-General acknowledged President Meron’s ‘astute stewardship’ of the Mechanism and his leading role in ensuring that the Mechanism is small and efficient, as envisaged by the United Nations Security Council.” President Meron has been a frequent and active participant in the Brandeis Institute for International Judges.

Developments in International Justice

Over the past month, there have been two important rulings that uphold international human rights norms for members of the lesbian, gay, bisexual, and trans (LGBT) community.

The Botswana Court of Appeals declared unconstitutional the refusal of the Home Affairs Ministry to register an LGBT organization, finding it a violation of the right to freedom of association. Although the Botswana ruling demonstrates significant progress in LGBT rights in Africa, it is by no means the first court in the region to uphold them. The Kenya High Court delivered a similar judgment in 2015, and in 2014 the Zambia High Court upheld the acquittal of human rights activist Paul Kasonkomona, who has fought for many years for the rights of the LGBT community. These rulings notwithstanding, laws against homosexual conduct are still in place in many African countries, including Botswana.

Meanwhile, to the north, the European Court of Human Rights (ECtHR) has ruled that Croatia’s Aliens Act, which disqualifies same-sex couples from family reunification policies that apply to different-sex couples, discriminates on the grounds of sexual orientation. In the case of Pajić v. Croatia, Croatia denied a foreign national a residence permit to be reunited with her long-term partner. According to the Aliens Act, same-sex partners do not fall under the category of “immediate family members.” The ECtHR found that sexual orientation is a part of “private life,” and that same-sex relationships fall into the category of “family life,” and are thereby protected from interference by a public authority under Article 8 of the European Convention on Human Rights

dThe Appeals Chamber of the Special Tribunal for Lebanon (STL) has reversed the decision made by the Contempt Judge in September 2015 which convicted Karma Al Khayat of contempt of court for failing to block public access to broadcasts of interviews with allegedly confidential STL witnesses on Al-Jadeed Television. Ms. Al Khayat had been ordered to pay a €10,000 fine, which has now been overturned by the Appeals Chamber. While some herald this decision as a victory for freedom of the press, the Committee to Protect Journalists (CPJ) saw the Appeals Chamber decision as a “missed opportunity to [deliberate on how to] strike the correct balance between the right to free expression and the responsibility of courts and tribunals to safeguard judicial proceedings and the administration of justice.”

dThe Court of Justice of the European Union (CJEU) has ruled that EU law does not prohibit the restriction of freedom of movement for the purpose of integration of some foreign nationals living in Germany, because while it may limit where these individuals may settle, it does not restrict their ability to move freely within the country. The German Federal Administrative Court referred three questions to the CJEU regarding the compatibility with EU Law of the Act on the Residence, Economic Activity, and Integration of Foreigners in the Federal Territory Residence Act. This act allows for geographic limitations in the issuing of visas and residence permits in order to distribute economic burden across the country, and also to facilitate social integration. The German law is imposed on foreign nationals who are receiving subsidiary protection from the State and are not as successfully integrated into society as other third-country nationals living in Germany. However, the CJEU found that the law should be imposed equally on beneficiaries of subsidiary status and those with refugee status. The Court also held that the lack of restrictions on German nationals from living anywhere they choose in the country refutes the argument for equal distribution of fiscal burden. Read the Court’s Decision here.

Judge Fatsah Ouguergouz reads
the 18 March 2016 judgment.
The African Court on Human and Peoples’ Rights has held that Tanzania violated the rights of ten Kenyan nationals who were forcibly removed from Mozambique and imprisoned in Tanzania, where they were charged with murder and armed robbery. The African Court found that Tanzania had violated the applicants’ rights to be defended by counsel and to be tried within a reasonable time, provided for in articles 7(1)(c) and 7(1)(d) of the African Charter on Human and People’s Rights. This is the first ruling by the African Court on alleged violations of articles 7(1)(c) and 7(1)(d), and it has ordered Tanzania to provide legal aid to the applicants and take “all necessary measures…to expedite and finalize” all criminal proceedings against the applicants in domestic courts.

Source: iphone-
The lawsuit initiated by the United States government and the Federal Bureau of Investigation (FBI) against the technology company Apple Inc. has reached a conclusion. The US Justice Department recently announced that it no longer requires the assistance of Apple in creating or using existing software that would extract data from a locked iPhone. Apple Inc. had received eleven orders from US district courts ordering its cooperation in recovering information from the locked iPhone of Syed Rizwan Farook, one of the shooters in the December 2015 terrorist attacks in San Bernadino, California, which killed 14 people. In February 2016, Apple’s CEO Tim Cook issued a message to Apple’s customers, expressing the company’s opposition to the orders and commitment to preventing a dangerous precedent that would diminish protecting data security. Reports indicate that the FBI used a third-party company to hack into the iPhone, although the identity of the company has not yet been confirmed. With Apple’s iPhones being one of the most widely used mobile devices across the globe, this case raises challenging questions about the kinds of limitations governments should face regarding access to the private information of their citizens.

dThe Committee on Foreign Affairs of the United States House of Representatives recently met and passed two bills that express the Committee’s concern for alleged violations of international law committed by the Government of Syria and its allies, as well as the Islamic State. Resolution 75 declares the Committee’s view that the atrocities against Christians and other religious minority groups constitute war crimes, crimes against humanity, and genocide. Resolution 121 not only reiterates these concerns but calls on the President of the United States and the US Ambassador to the United Nations to advocate for the establishment of a war crimes tribunal to address the alleged crimes committed. This declaration by a US government body is somewhat surprising, considering the United States’ recent non-participation in international criminal justice. The resolutions will be brought before the House of Representatives and the Senate of the United States.

The International Court of Justice (ICJ) recently issued a judgment in the case of the Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia Beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia). The ICJ held that it has the jurisdiction, under Article XXXI of the Pact of Bogotá, to respond to Nicaragua’s request to establish the maritime boundary between Nicaragua and Colombia in the Caribbean Sea that pertain to each of the parties beyond the boundaries determined by the ICJ in its Judgment of 19 November 2012. The areas of the Caribbean Sea in question are the islands of San Andres y Providencia, which the Court held, in its 2012 decision, are under Colombian sovereignty up to a 12-nautical mile radius. The Court also issued a decision fixing the time-limit for Colombia to file its Counter-Memorial.

sThe Administrative Council of the Permanent Court of Arbitration (PCA) recently voted to allow the State of Palestine to become the 118th member of the Permanent Court of Arbitration. The Council found that Palestine is a contracting party to the 1907 Hague Convention for the Pacific Settlement of International Disputes and a member of other intergovernmental organizations such as the International Criminal Court, thereby qualifying the country to become a member of the PCA, according to a press release. The PCA is not a court in the traditional sense, but an internationally recognized organization for arbitration between states for the pacific settlement of disputes.

Publications and Resources of Interest

sThe recent conviction of Radovan Karadžić by the ICTY has brought international criminal justice back into the mainstream news. It has also garnered renewed attention for a book published a few months ago by journalist Julian Borger, The Butcher’s Trail: How the Search for Balkan War Criminals Became the World’s Most Successful Manhunt (Other Press 2016). The publisher notes, “Indicting the worst war criminals that Europe had known since the Nazi era, the ICTY ultimately accounted for all 161 suspects on its wanted list, a feat never before achieved in political and military history.” To hear from Borger himself about how some of the criminals were apprehended, watch his recent interview on the American Public Broadcasting Service’s NewsHour.

dThe peer-reviewed journal Law and Contemporary Problems has published a special issue around the topic of “The Variable Authority of International Courts.” The issue was co-edited by Karen J. Alter (Northwestern University), Lawrence Helfer (Duke University), and Mikael Rask Madsen (iCourts Centre of Excellence, University of Copenhagen Law Faculty). In an IntLawGrrls blogpost, Alter writes, “The special issues offers the first systematic empirical exploration of the authority of the ten most active ICs (international courts). Each article, authored by leading scholars in law, political science and sociology, analyzes how IC authority varies over time, by issue area, and within and across member countries…The key question addressed in the special issue is how to explain the wide variation in the de facto authority of ICs.”

dThe Inter-American Commission on Human Rights (IACHR) has published a report outlining the state of human rights in Mexico. According to the Commission press release, “[t]he report analyses the severe human rights crisis that Mexico faces, with particular emphasis on disappearances (particularly forced disappearances), extrajudicial executions, torture, as well as citizen insecurity, access to justice and impunity…The report observes that Mexico is one of the most dangerous countries in the world to practice journalism.”

In a subsequent press release, the IACHR expressed indignation at the “smear campaign” taking place in Mexico against the Commission’s Interdisciplinary Group of Independent Experts. This entity is responsible for a follow-up inquiry into the case of 43 students who disappeared from the town of Aytozinapa in September 2014. The teacher training college where they studied has a history of left-wing activism and the students regularly took part in protests. The parents of the missing students do not believe the results of the official government inquiry, which indicated that their sons were seized by corrupt municipal police officers who handed them over to members of a local drug gang.

dThose readers who are following the circus of the U.S. presidential campaign will appreciate a new Opinio Juris occasional series on International Law and Presidential Politics. The site notes, “Foreign policy and international law have been a central topic of discussion among the U.S. presidential candidates, and there is much fodder for discussion regarding the fidelity of their positions with the United States’ commitments under international law.” Opinio Juris is inviting academics to submit guest posts for possible publication. As to possible topics, “[a]s long as it relates to international law, any comments, debate discussion, party platform, or candidate position presented by the Republican or Democratic presidential candidates is fair game for a post.”

“International Justice in the News” is edited by Leigh Swigart, Director of Programs in International Justice and Society, with the assistance of Leonie Koch '16.

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