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.

November 2016

People in the News

               Lətif Hüseynov
The European Court of Human Rights (ECtHR) has two new judges. Lətif Hüseynov of Azerbaijan is a professor of international law at Baku State University and previously served as an ad hoc judge on the ECtHR. Jovan Ilievski of Macedonia has long practiced criminal law and serves as the Head of the Basic Public Prosecution Office for Organised Crime and Corruption of Macedonia. Elected by the Parliamentary Assembly of the Council of Europe, the judges will each serve a nine-year term.

gAntonio Guterres, former Prime Minister of Portugal and United Nations (UN) High Commissioner for Refugees from 2005 to 2015, has been appointed the next UN Secretary-General. The UN Security Council quickly agreed on his appointment in a “rare show of unity,” and formally presented his candidacy to the General Assembly. On 1 January 2017, Guterres will succeed Ban Ki-moon, who has served as the 8th UN Secretary-General over the past 10 years. WomanSG, “a campaign to elect a woman as the next UN Secretary-General,” is outraged by the UN’s rejection of “all highly qualified women candidates.” This comes after the organization’s continuous denouncement of “the disgraceful discrimination against the female candidates” throughout this process. Many claim that the results of this election, given the choice of seven very qualified female contenders, point to the issue of sexism in the UN.

dThe Supreme Court of the United States will examine a lawsuit against former Attorney General John D. Ashcroft and other top officials from George W. Bush’s administration, by immigrants “who say they were racially profiled and illegally detained” after the terrorist attacks of 11 September 2001. The suit was initially filed against Ashcroft in 2002 and afterward was “mired in legal maneuverings in the lower courts.” The multiple plaintiffs, whose charges are grouped under Turkmen v. Ashcroft, are represented by the Center for Constitutional Rights. Justice Sonia Sotomayor and Justice Elena Kagan have recused themselves from the case, leaving the bench with only six justices to determine the outcome. 

dColombian President Juan Manuel Santos has been awarded the Nobel Peace Prize for his “resolute efforts to bring the country’s more than 50-year-long war to an end.” On 24 August 2016, the government of Colombia unveiled a peace agreement with “the country’s largest and oldest insurgent group, the Revolutionary Armed Forces of Colombia (FARC).” In an October referendum, however, Colombian citizens narrowly rejected the agreement, which sought to address the main causes of the conflict and proposed transitional justice mechanisms to reunite the country and restore peace. The Norwegian Nobel Committee emphasized that “the award should also be seen as a tribute to the Colombian people who, despite great hardships and abuses, have not given up hope of a just peace, and to all the parties who have contributed to the peace process.” It has been noted that by not also granting an award to FARC leader Rodrigo Londono, “the committee maintained the integrity of the prize and lauded the chief architect of the peace deal.” Many Colombians have demanded a revival of the peace deal, while many foreign onlookers believe the committee’s decision was meant to “spur parties to redouble their efforts to secure peace.”

Two persons already convicted by the International Criminal Court (ICC) are once again in the news. 

sJean-Pierre Bemba, who was found guilty of crimes against humanity and war crimes last March and given a sentence of 18 years, has now been convicted a second time for obstructing justice. Along with four close aides, Bemba stood accused of “coaching and bribing witnesses to give false testimonies.” This judgment marks the first ICC trial for offenses against the administration of justice. This is also the first time that an individual has undergone a second ICC trial. Judge Bertram Schmitt delivered the judgment, stating, “no legal system in the world can accept the bribing of witnesses, the inducement of witnesses to lie or the coaching of witnesses.”

dThomas Lubanga Dyilo was convicted by the ICC in 2012 for the war crimes of enlisting and conscripting child soldiers in the Ituri region of the Democratic Republic of Congo (DRC). The Court also “ruled that Lubanga is personally liable for reparations to his victims.” The court opened a reparations case shortly after the conclusion of the trial, but many “lawyers and experts have wrestled with the best way of ensuring that the victims can be helped.” The ICC recently held hearings to determine the reparations that will be offered to victims, who, experts testified, “remain stigmatized, suicidal and live in constant fear.” This fear is exacerbated by the fact that Lubanga is currently finishing out his 14-year prison sentence in the DRC.

Developments in International Justice

dThe Republic of the Marshall Islands has been disappointed in its search for justice following its use as the site of nuclear weapons testing by the United States between 1946 and 1958. The nuclear weapons test explosions have had lasting effects on the health of Marshallese citizens. In April of 2014, the Marshall Islands filed individual applications with the International Court of Justice (ICJ) against the nine states worldwide believed to have nuclear weapons: the United States, Russia, United Kingdom, France, China, India, Israel, Pakistan, and North Korea. The Marshallese government claimed that all of these states are in breach of their obligations “to engage in negotiations on nuclear disarmament.” Ultimately, only India, Pakistan, and the United Kingdom, all of which have accepted the compulsory jurisdiction of the Court, presented their preliminary objections. The ICJ upheld the jurisdictional objections presented by the three states and determined that none of the cases will proceed to the merits phase. It was, however, a close vote. According to Daily Sabah, “[i]t took a casting vote by the court's President Ronny Abraham to break an eight-eight deadlock between the court's 16 judges on the question of jurisdiction.”

dOver the last two months, the United Nations (UN) has been hard at work on two issues of critical importance: the protection of human rights defenders and the global increase in refugees and migrants. 
UN Secretary-General Ban Ki-moon has announced a new mandate whereby the Assistant Secretary-General for Human Rights, Andrew Gilmour, will “receive, consider and respond to allegations of intimidation and reprisals against human rights defenders and other civil society actors engaging with the UN.” The Secretary-General stressed that such acts “attack the credibility and the effectiveness” of the UN, which relies greatly on reports of human rights violations from these defenders.
The UN also recently held a Summit on Addressing Large Movements of Refugees and Migrants to reconfirm a commitment to refugee protection and discuss “frameworks to respond to the increasing number of people on the move.” Filippo Grandi, the UN High Commissioner for Refugees, emphasized the importance of the so-called New York Declaration, which aims “to better safeguard the rights of refugees and migrants and share responsibility on a global scale.” Speaking at the Summit, Director-General of the International Organization for Migration, William Lacy Swing, asserted that migration is inevitable given the multiple ongoing humanitarian crises around the world, but added that migration can also help societies and economies to flourish. Successful migration requires humane migration policies, however, which in turn “will require changing the toxic migration narrative and learning to manage cultural, ethnic and religious diversity.” 

fAfter Brexit comes “Rwexit.” Last February, Rwanda decided to withdraw its Article 34(6) Special Declaration from the African Court on Human and Peoples’ Rights (ACtHPR), which permits individuals and NGOs direct access to the Court. This decision marks the first time that a member state of the ACtHPR has attempted to withdraw from a special declaration, which has caused much discussion in the international justice community. After many months, the court has officially released the order surrounding this withdrawal. Rwexit will be effective starting 1 March 2017, after which no further applications from individuals and NGOs on Rwanda will be admissible. The status of African states vis-à-vis their ratification of both the African Charter on Human and Peoples’ Rights and the Special Declaration can be found at the ACtHPR Monitor’s “country tracker.” 

dIn other news from the African human rights system, the African Commission on Human and Peoples’ Rights (ACHPR) has presented a draft of its Guidelines on Freedom of Association as Pertaining to Civil Society and Guidelines on Peaceful Assembly at its 59th Ordinary Session in Banjul, The Gambia. These guidelines are meant to assist States in their fulfillment of the rights to freedom of association and of assembly as set out in the African Charter on Human and Peoples’ Rights. The draft reiterates “concerns over the arbitrary and excessive restrictions on these rights, and note that such restrictions limit the potential for a free and open society.” The major goal of this draft is to assist the 54 state parties to the Charter “in implementing legal frameworks and adopting legislation pertaining to those rights.”

dThe United States Congress overturned in September President Barack Obama’s veto on the Justice against the Sponsors of Terrorism Act (JASTA). This law permits citizens of the United States to sue the government of Saudi Arabia for the terrorist attacks of 11 September 2001, given that 15 of the hijackers were Saudi nationals. Many have openly criticized JASTA, including the European Union (EU). A spokesperson from the EU has stated, “we do not believe the approach set out in JASTA is in the interest of either the EU or US, and it would be in conflict with the fundamental principles of international law and, in particular, the principle of state sovereign immunity.” CIA Director John Brennan has come out to say, “the principle of sovereign immunity protects US officials every day, and is rooted in reciprocity. If we fail to uphold this standard for other countries, we place our own nation’s officials in danger.” Already, a number of members of Congress have begun to “contemplate the possible implications for the United States” and are considering possible “fixes” to the law.

dThe European Court of Human Rights (ECtHR) has recently issued two significant judgments. The Court determined, in a Grand Chamber judgment in Muršić v. Croatia, that the detention of the applicant in Bjelovar Prison for 27 days in a space of less than 3 square meters was in violation of Article 3 of the European Convention on Human Rights, which prohibits inhuman and degrading treatment or punishment. “The Court confirmed that 3 sq. m of surface area per detainee in a multi-occupancy cell was the prevalent norm in its case-law, being the applicable minimum standard for the purposes of Article 3.”
In Malfatto and Mieille v. France, the ECtHR found in a Chamber judgment that that no violation of Article 1 of Protocol No. 1 of the Convention, which protects property, had occurred. The case involved the prohibition of construction within 100 meters of the French coastline, which the applicants, who own land deemed buildable on the Mediterranean coast before the enactment of coastline protections, considered a violation of their rights. The Court found no evidence that earlier judgments of the French courts upholding the prohibition were unreasonable, and considered that “the balance between the applicants’ rights and the general interest of the community, which encompassed the legitimate aim of the protection of coastal areas, had not been upset.”


The International Tribunal for the Law of the Sea
(ITLOS) recently celebrated its 20th anniversary. Celebrations included an international symposium entitled “The Contribution of the Tribunal to the Rule of Law.” A ceremony was also held in the City Hall of Hamburg to commemorate this momentous occasion, which was attended by UN Secretary-General Ban Ki-moon and German President Joachim Gauck. 

The Honorable Justice Jérôme Traore
The Economic Community of West African States (ECOWAS) Court of Justice has recently initiated a collaboration with Inter-Governmental Action Group Against Money Laundering in West Africa (GIABA) “in the fight against money laundering and financing of terrorism” in the region. ECOWAS Court President Jérôme Traore said that the increasing devastation caused by the twin challenges required more vigorous collaborative efforts in this fight. He also advocated for adherence to various legal mechanisms in the region to ensure the success of this new partnership with GIABA. 

Location of the Miskito people in red
The indigenous Miskito community of Nicaragua has been the target of recent attacks by Nicaraguan settlers, who have claimed Miskito ancestral lands. These settlers, called “colonists” by the Miskito people, are enticed by “the promise of gold and the abundance of lucrative timber.” The Miskitos, who have a long history of conflict with the larger Guatemalan society, have pushed back against the settlers, which has resulted in raids on indigenous villages. One village has already burned down, at least 600 Miskitos have fled to Honduras, and the slaying of at least 30 indigenous persons has been documented. “After the native communities were granted autonomy over the lands and given preferential treatment under the law” 30 years ago, a new land grab is underway, with the Nicaraguan government failing to respond. The Inter-American Court of Human Rights has ordered the Nicaraguan government to ensure the protection of the Miskito population.

In rapid succession, three African states have declared their intention to withdraw from the Rome Statute of the International Criminal Court. The exodus began with Burundi, with many believing that withdrawal is an attempt to prevent an arrest warrant being issued against President Nkurunziza after the ICC Office of the Prosecutor opened an official investigation into mass violence in Burundi. Shortly after Burundi’s announcement, South Africa also formally began its process of withdrawal from the ICC. This decision goes back to South Africa’s refusal to execute the arrest warrant against President Omar al-Bashir of Sudan in June of 2015. Finally, Gambia joined in (despite the ICC Chief Prosecutor being a Gambian citizen and former Justice Minister), accusing the Court of the “persecution and humiliation of people of colour, especially Africans." This came after President Yahya Jammeh's rejected attempt to use the Court to punish the European Union for the death of thousands of African migrants trying to reach its shores. It should be noted that the ICC can investigate all alleged crimes that have been perpetrated to date as well as any crimes committed one year from the day that the states deposit their notices of withdrawal. The exit of these three states is raising fears about many more African states joining “the queue.” Mark Kersten, in a Justice in Conflict blogpost, identified ten states that he believes will stand by the Court. He also notes that, significantly, Gabon has referred itself to the ICC for investigation just as the other states are withdrawing. (Image credit: Justice Hub)


Publications and Resources of Interest

dWhen the international community considers the reasons for some African states’ disenchantment with the ICC, the existence of cultural and linguistic divides between the Court and its “constituents” should not be overlooked. In a recent IntLawGrrls blogpost and forthcoming article, IJIN editor Leigh Swigart explores the impact of such divides at the ICC and other international criminal tribunals and how they might be bridged. Read also a recent publication by scholar Melanie O’Brien, who has examined interview techniques used in international criminal institutions and the disconnect that often exists between the cultural and educational backgrounds of staff and the suspects and witnesses whom they interview. In contrast, a short animated video about how the ICC’s Office of the Prosecutor selects and interviews witnesses is conspicuously silent about any challenges associated with the coming together of diverse languages, cultures or worldviews that might complicate the exchange between questioners and the questioned.

dAlice Donald and Philip Leach of Middlesex University have published a new book on the linkages between national legislatives and the Strasbourg system: Parliaments and the European Court of Human Rights (Oxford University Press 2016). Based on years of research, it includes five country case studies on the extent to which parliaments contribute to (or hamper) the implementation of the judgments of the European Court of Human Rights.  The countries are Ukraine, Romania, the United Kingdom, Germany, and the Netherlands. Read more about the book from the ECHR Blog.

“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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