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.

December 2016

People in the News

    Judge Aydin Sefa Akay
In his fourth Annual Report of the Mechanism for International Criminal Tribunals (MICT) to the United Nations (UN), President Theodor Menon informed the General Assembly of the ongoing detention of MICT Judge Aydin Sefa Akay of Turkey. Judge Akay was arrested in September, despite having diplomatic immunity, for his alleged connection with the failed coup in Turkey this past July. He has been assigned to a MICT panel charged with reviewing the judgment by the International Criminal Tribunal for Rwanda of former Rwandan planning minister Augustin Ngirabatware, but Akay’s detention means that the proceedings are at a standstill. President Meron has demanded that Turkey “immediately release Judge Akay from detention and enable him to resume his lawfully-assigned judicial functions,” a demand reiterated by the UN.

The European Court of Human Rights (ECtHR) has already addressed a situation similar to Judge Akay’s. In Mercan v. Turkey, Judge Zeynep Mercan, also detained for alleged links to Turkey’s attempted coup, claimed that “her arrest and detention had breached European Convention on Human Rights articles on the prohibition of torture, the right to liberty and security, and the right to a fair trial.” Ultimately, the ECtHR rejected her application “for failure to exhaust domestic remedies” prior to coming to the regional court.

dSince the election of Donald J. Trump as the next United States President, many have expressed concern about what his presidency might mean for international legal institutions. Opinio Juris has responded with a series of articles about U.S. relations with international legal structures and institutions. One of the potential problems posed by a Trump presidency is the “ordering [of] illegal action[s] by the U.S. military.” During his campaign, Trump suggested the reinstitution of waterboarding for terrorism suspects, despite its illegality under both U.S. and international law. Another campaign promise worrying a number of commanders and troops is “the notion of bombing with little regard for civilian casualties or taking Iraq's oil supplies,” even though both potentially violate international law. Peter Cook, a Press Secretary for the Pentagon, explained “that all U.S. troops have an obligation not to follow illegal orders.” Kathryn Sikkink, a Harvard University professor of Human Rights Policy, underscores the need, under a Trump presidency, for “stronger domestic movements to protect vulnerable populations from hate and discrimination and to mobilize groups harmed by globalization.” Furthermore, in order to repel an administration adamant on the use of torture and cruelty, “broad international collaboration between human rights movements and institutions” will be needed.

For a different and somewhat lighter response to recent events, read Mohamed El Dahshan’s write-up of Trump’s rise to power using descriptive terms usually reserved for African countries known for their instability, over-the-top leaders, and ethnic factionalism.

         Khieu Samphan (l) and Nuon Chea

The Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) has affirmed in its appeals judgment the life sentences of Nuon Chea, former Deputy Secretary of the Communist Party of Kampuchea, and Khieu Samphan, former Head of State of Democratic Kampuchea. At the same time, the Chamber reversed convictions for the crimes against humanity of extermination, murder, and persecution on political grounds, asserting that the evidence presented before the ECCC did not establish, beyond a reasonable doubt, that these crimes had been committed. Learn about some of the unique challenges in the Samphan and Chea case, including the advanced age of the accused persons, in Dr. Rachel Killean’s article at Beyond The Hague.

Silvia Fernández de Gurmendi and Ban Ki moon

Important international figures are speaking out against the planned withdrawal of three African countries from the International Criminal Court (ICC). Richard Goldstone, former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda and former Justice of the South African Constitutional Court, stated that the notification of withdrawal by his country is “unfortunate on legal, moral, and political grounds.” ICC President Silvia Fernández de Gurmendi addressed the United Nations (UN) General Assembly, underscoring that “the role of the Court is to provide justice only when states fail to do so.” She emphasized that “since its creation, the Court has made significant achievements in addressing crimes of concern to the international community as a whole such as the use of child soldiers, sexual violence in conflict, attacks on civilians and the destruction of cultural property,” and that state participation is necessary to further the ICC’s efforts. Former UN Secretary-General Kofi Annan asserted that the “ICC remains the continent’s most credible court of last resort for the most serious crimes.” Current UN Secretary-General Ban Ki moon also weighed in, opening a Security Council meeting with the statement that “deterring future atrocities, delivering justice for victims, and defending the rules of war across the globe are far too important priorities to risk a retreat from the age of accountability that we have worked so hard to build and solidify.” Over the past month, the ICC has also garnered a reaffirmation of support from a number of African states, despite the announced withdrawals of South Africa, Burundi, and Gambia.

Developments in International Justice

dThe International Day on the Elimination of Violence Against Women, observed on November 25th, provided an opportunity for diverse United Nations and regional bodies to join forces in calling attention to the persistent and widespread occurrence of gender-based violence across the globe.  According to a press release of the Inter-American Commission on Human Rights, “[v]iolence against women, as a form of discrimination against women and a human rights violation, is prohibited both by the global human rights instruments – such as the Convention on the Elimination of All Forms of Discrimination against Women and the Declaration on the Elimination of Violence against Women – and by the regional treaties, such as the Belém do Pará Convention, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of women in Africa (Maputo protocol), and the Istanbul Convention.” In the lead-up to this International Day, controversy raged over a proposed law in Turkey that would allow men who have sexually assaulted minors to be absolved of guilt if they marry their victims. Ultimately, the government of Turkey withdrew the bill in response to public protests, with the Turkish Justice Minister stating that a revised proposal would not be brought forth. Read more about the law and the protests it sparked from The Guardian.  

dThe Ross Sea in Antarctica, which covers more than 1.5 million square kilometers and is the last extensive intact marine ecosystem in the world, has become the world’s largest marine protected area. This international decision was the result of “the dogged efforts of hundreds of scientists, thousands of conservationists, and millions of global citizens over the course of more than a decade,” as well as the will of the more than two dozen nations comprising the Commission for the Conservation of Antarctic Marine Living Resources. A New Zealand Navy ship will be sent to the Ross Sea this month to monitor illegal fishing during the annual season, now that the Sea is protected from human activity. Foreign Minister Murray McCully stated, “New Zealand played a leading role in bringing the protected area into force and our work to patrol the Southern Ocean demonstrates our commitment to protecting this pristine natural environment.”

gThe African Court of Human and Peoples’ Rights (ACtHPR) recently celebrated its 10th anniversary with an International Symposium, bringing together over 150 delegates from academia, civil society, the African Union, and judiciary representatives of regional and sub-regional human rights institutions. The symposium was followed by the Fifth Annual African Union Dialogue on Democracy, Human Rights, and Governance. According to Ghana Business News, ACtHPR President Justice Sylvain Oré explained that the dialogue would adopt a ten-year action plan on the promotion and protection of human rights in Africa. He noted, “we are guided in that quest by the African Union’s vision for an integrated, prosperous, and peaceful Africa, driven by its own citizens and having a strong voice in the international arena. Human rights must be adhered to as civic and socio-economic aspirations are pursued, which will ensure we have a continent that is peaceful, people centered and plays a dynamic role in the world.”

dShould women be able to decide where to give birth and who will assist them during the delivery? In a recent Grand Chamber decision, the European Court of Human Rights upheld a Czech law prohibiting women from using the services of a midwife during home births. They are instead required to give birth in a hospital in order to be assisted by a midwife. The applicants in Dubská and Krejzová v. Czech Republic charged that the prohibition constituted a violation of the right to respect for private and family life under Article 8 of the European Convention on Human Rights. However, the Court held that the law strikes a fair balance between upholding Article 8 and protecting mothers and children. Read more about the case from the International Justice Resource Center.

dIn the wake of a new cholera outbreak in Haiti, UN Secretary-General Ban Ki moon has announced a plan to raise $400 million “to treat and eradicate [the] disease and to provide financial assistance to affected communities and individuals, including victims of the 2010 outbreak that killed over 9,500 people and infected 800,000 others.” This funding announcement follows the UN’s recent acceptance of “moral responsibility” for the 2010 outbreak, widely thought to have been carried to Haiti by UN peacekeepers. While many welcome the UN’s increased effort to resolve the situation in Haiti, a number of critics are dissatisfied with “the [UN’s] lack of acknowledgement of responsibility in creating the epidemic and the absence of a public apology.” Ban Ki moon specified that half of the money will be directed to “assisting families and communities most affected by the outbreak since 2010,” while the other half will be for the treatment and elimination of “cholera in Haiti and [to improve] sanitation and access to clean water in the region.”

    President Golitsyn
The International Tribunal for the Law of the Sea (ITLOS) recently delivered its judgment on the preliminary objections in the M/V “Norstar” Case (Panama v. Italy). This case relates to “the interpretation and application of the United Nations Convention on the Law of the Sea in connection to the arrest and detention by Italy of MV Norstar, an oil tanker registered under the flag of Panama.” The judgment, presented by the President of the Tribunal, Judge Vladimir Golitsyn, found that “it has jurisdiction to adjudicate the dispute and decides that Panama’s application is admissible.” Read more about the M/V “Norstar” Case in an ITLOS press release.

dChina has filed an appeal against a ruling of the World Trade Organization in the United States anti-dumping case. In its original complaint against the U.S., China challenged the “methodologies used by the United States to calculate anti-dumping tariffs targeting Chinese imports.” Despite winning a bulk of the grievances brought before the dispute panel, a number of China’s points were rejected, “including a claim that the U.S. Commerce Department systematically punishes Chinese state enterprise by assigning them high anti-dumping rates.” The delegation of China submitted the appeal for circulation in mid-November and awaits the report of the WTO’s Appellate Body.

The Eiffel Tower goes green in response to the
Paris Agreement entering into force.
On 4 November 2016, the Paris Agreement entered into force, a month after its ratification by 72 state parties to the UN Framework Convention on Climate Change, representing          56.75% of total global greenhouse gas emissions. For an international agreement to be ratified so quickly “is record-breaking; unparalleled in multilateral treaty making – environmental or not.” However, according to The New York Times, many have begun to uncover flaws in the treaty. “Top energy policy makers and corporate leaders caution that it will be challenging to meet even the deal’s modest goals to reduce planet-warming emissions of greenhouse gases.” The main goal of the agreement was to fend off the largest “effects of climate change by limiting the increase in global temperatures to two degrees Celsius.” Even if each country fulfills their initial pledges, “the increase would be closer to 2.7 degrees.”

Furthermore, the election of Donald J. Trump as U.S. President throws into question “many aspects of the deal that previously seemed settled, including who will lead the industrialized nations of the world in reducing greenhouse gas emissions.” In a Business Insider interview, former Obama advisor Kelly Sims Gallagher predicted that President-Elect Trump “will soon realize that the climate issue during the Obama administration became one of the sole bright spots in the U.S.-China relationship.” She added that it was unprecedented for the United States and China to come together to form their leadership role and that pulling out of the agreement would be a shortsighted setback for the Trump administration. Furthermore, according to a recent University of Chicago poll, over 70% of Americans and a majority of Republicans want the U.S. to remain in the Paris Agreement. However, “if Trump opted to let the United States stay in the Paris Agreement, it would represent a major shift of his views from” his campaign. The question now is: will Trump stand by his campaign promises or act in the interest of the constituents he now represents?

              credit: The New York Times
The United Nations’ Permanent Forum on Indigenous Issues is currently investigating allegations of human rights abuses by law enforcement officers at the Dakota Access pipeline protests. UN observers will examine “the Water Protectors’ claims of human rights abuses, including the right to water, protection of sacred sites, the right to free prior and informed consent before development affecting their territories, the protection of Indigenous human and environmental rights defenders, unlawful arrests, excessive force and mistreatment in custody.” Demonstrations began to protect water and to defend tribal lands. However, pipeline protests have grown increasingly intense over the last few months with construction moving closer to the Missouri river and with amplified police aggression towards protestors. Indigenous leaders have testified about “acts of war” during mass arrests in which many were temporarily kept in small cages. Read more about UN’s investigation from The Guardian.

The International Criminal Court (ICC) has been busy the last few weeks. In addition to dealing with the fallout of African state withdrawals and engaging with the Assembly of States Parties at its annual meeting, here are some highlights:

For the first time, the Court has approved and ordered the implementation of a plan for victim reparations. Submitted by the Trust Fund for Victims, the plan entails symbolic collective reparations for victims in the case of Thomas Lubanga Dyilo, who was found guilty in March 2012 for the war crimes of enlisting and conscripting children under the age of 15 and using them as child soldiers. Read Marissa Brodney’s Implementing International Criminal Court-Ordered Collective Reparations: Unpacking Present Debates to learn about the difficulties surrounding the implementation of collective reparations.

dDuring the recent Assembly of States Parties meeting, ICC Prosecutor Fatou Bensouda launched the Office of the Prosecutor’s (OTP) new Policy on Children. She stressed the need to “strengthen our resolve to end impunity for atrocity crimes against and affecting children” and to “send a firm and consistent message that humanity stands united in its resolve that such crimes will not be tolerated and that their perpetrators will not go unpunished.”

At the request of the Gabonese government, the OTP will conduct a preliminary examination in Gabon in order to establish whether the criteria for opening a full investigation are met. The request was triggered by deadly violence around the recent presidential election in Gabon.  The ICC’s Office of the Prosecutor is also considering opening investigations in Afghanistan, asserting that “members of the U.S. armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014.” Read about these and other situations in the recent OTP “Report on Preliminary Investigation Activities 2016.”

Finally, Russia has removed its signature from the Rome Statute, the treaty that established the ICC. Russia’s decision came just “a day after the court published its activity report classifying the Russian annexation of Crimea as an occupation.” According to a Forbes article, this report “demolishes Putin’s narrative of the Ukrainian conflict, which paints Russia as an innocent bystander.”

Publications and Resources of Interest

dThe International Nuremberg Principles Academy has just published, and made available free of charge, an electronic edited volume focused on the issue of deterrence in international criminal justice. Edited by Jennifer Schense and Linda Carter (longtime co-director of the Brandeis Institute for International Judges), Two Steps Forward, One Step Back: The Deterrence Effect of International Criminal Tribunals is the first book to offer a close examination of how and to what extent the activities of such institutions prevent the commission of future crimes. As described in an IntLawGrrls blogpost by Schense, “This volume comprises ten country studies (Serbia, Kosovo, Rwanda, Sierra Leone, DRC, Uganda, Darfur, Kenya, Cote d’Ivoire and Mali), as well as a chapter on methodology, and conclusions drawing from all the country studies, with recommendations for further action.”

dRichard Ashby Wilson, the Gladstein Distinguished Chair of Human Rights and Professor of Law and Anthropology at the University of Connecticut Law School, has a new publication that explores a critical but rarely examined mainstay of international criminal trials: the expert witness. In “Expert Evidence on Trial: Social Researchers in the International Criminal Courtroom” (American Ethnologist, Vol. 43, No. 4), Wilson looks at the testimony given by experts in the social sciences and compares the impact of those using qualitative versus quantitative methods in two speech crimes trials. He contends that international judges are more receptive to the input of qualitative researchers as they do not challenge the sovereignty of judges or the status hierarchy of the courtroom. 

dThe Inter-American Commission on Human Rights (IACHR) has published a report on human mobility, which lays out legal standards for states in regard to “policies concerning migrants, asylum seekers, refugees, persons in need of complimentary protection, stateless persons, victims of human trafficking, and internally displaced persons.” According to the Commission, 63 million international migrants, a figure that accounts for about 25% of all international migrants, live in the Americas. In addition, more than 8 million people in North and South America have been displaced within their own country due to violence and armed conflict. According to a Commission press release, “this report will…serve as a useful resource for judges, public authorities, national human rights agencies, lawyers, human rights defenders, and nongovernmental organizations, as well as for migrants themselves, on the scope and content of their rights and how to make them justiciable before the courts, as defined by the inter-American human rights system.”

Special Opportunity

The National Law School of India, Bangalore, in collaboration with the Nelson Mandela Metropolitan University of South Africa, have issued a call for papers on the topic of “The Interface of Law and Public Policy.” Selected papers will be presented during a panel at the 3rd Conference of the International Public Policy Association, to be held at Lee Kuan Yew School of Public Policy, National University of Singapore, from 28-30 June 2017.  The deadline for submission of papers is 15 January 2017. Access the full call for papers here.

“International Justice in the News” is edited by Leigh Swigart, Director of Programs in International Justice and Society, and Lee Wilson '18.

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