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 2017

Featured News

dThe Ad Hoc Tribunals Oral History Project, an activity of the International Center for Ethics, Justice and Public Life, now has 22 interview transcripts and 5 video clips available online. The project seeks to capture the memories, perspectives, and reflections of the individuals who participated in and observed the rapid institution building that occurred during the early years of the International Criminal Tribunals for the former Yugoslavia and Rwanda. Interviews have been conducted with prominent figures from the Tribunals – such as judges, prosecutors and registry officials – as well as "behind the scenes" actors  – such as translators, administrators, and staff working with witnesses and victims. A keyword search may be made across the entire collection through the Brandeis Institutional Repository. Look for more transcripts in the near future.

People in the News

Fausto Pocar at BIIJ 2016
Fausto Pocar, long-time judge and past president of the International Criminal Tribunal for the former Yugoslavia – as well as the most frequent participant of the Brandeis Institute for International Judges – has temporarily moved down the road in The Hague to serve as judge ad hoc at the International Court of Justice (ICJ). The case he is sitting on, Ukraine v. Russian Federation involves claims that Russia has violated both the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination. Judge Pocar was appointed by Ukraine as its judge ad hoc, while Russia chose Leonid Skotnikov, who served as a permanent ICJ judge from 2006 to 2015. The Court held public hearings on the case over several days in early March and has now begun its deliberation on the indication of provisional measures. It is widely believed that the violation of these two treaties are peripheral to Ukraine's real complaint, which is Russia's unlawful use of force in annexing Crimea.  As Global Research notes, however, the fact that both states are signatories to the treaties serves as "hooks by which to bring Moscow into the room."

dThe plight of immigrants continues to make news across the globe. It is estimated by Relief Web that more than 25,000 persons have crossed the Mediterranean since the beginning of 2017, with almost 600 dead or missing along the way. When the Americas and Asia are added in, the death toll for 2017 rises to over 1000.  In the meantime, the Hungarian Parliament recently approved the detention of asylum seekers in guarded and enclosed camps on the country’s southern border, in what, according to The New York Times, "human rights advocates called a reckless breach of international law." United Nations High Commissioner on Human Rights Prince Zeid has decried, in particular, emerging U.S. policies toward immigration under President Trump, noting, “Vilification of entire groups such as Mexicans and Muslims, and false claims that migrants commit more crimes than U.S. citizens, are harmful and fuel xenophobic abuses.”

fToumba Diakité, a Guinean military commander allegedly responsible for a massacre on 28 September 2009 in Conakry, has been extradited to Guinea following his arrest in Senegal several months ago.  Diakité is accused of being the brains behind the massacre, which resulted in 157 deaths as well as numerous disappearances, injuries and sexual assaults among citizens, activists and civil society members who had assembled at a Conakry stadium to protest the presidential candidacy of coup leader Moussa Dadis Camara. Human rights groups are applauding the fact that Diakité has now been formally charged with numerous crimes, including rape, murder, arson, pillaging and kidnapping. Read more about the incident from Human Rights Watch. The fact that Senegal positively responded to Guinea's request to extradite Diakité, who had only recently been discovered living in Dakar under a false name, strengthens Senegal's track record on ensuring that justice be served in the West African region. In 2015-16, a specially-constituted Senegalese court tried and convicted former Chadian dictator Hissène Habré for war crimes and crimes against humanity, becoming the first African country to hold accountable the leader of another for atrocities. In early 2017, the Senegalese army entered onto the territory of neighboring Gambia, poised to act unless deposed leader Yahya Jammeh agreed to leave the country that had voted him out of office after 22 years of a rule marked by widespread human rights violations.

fOn the occasion of International Women's Day 2017, Linda Carter, long-time co-director of the Brandeis Institute for International Judges, was one of ten women  profiled by the Coalition for the International Criminal Court (CICC). A Distinguished Professor Emerita at the University of the Pacific, McGeorge School of Law, Carter started her career as a civil rights and criminal defense attorney in the United States, including as a trial attorney in the honors program of the Civil Rights Division of the US Department of Justice. She then went on to spend 30 years in academia where she shaped the thinking of generations of students.  Her experiences in international justice include researching the Gacaca courts in Rwanda; serving as a Visiting Professional in the Appeals Chamber of the International Criminal Court and as a legal researcher at the International Criminal Tribunal for Rwanda; advising on international criminal law curriculum development at universities in Sierra Leone, Zimbabwe and Kenya; and directing a summer program on law and development in Uganda. Read her CICC profile and an IntLawGrrls blog post about the 2016 McGeorge symposium held in Carter's honor. 

Should non-human entities be afforded the kinds of rights usually guaranteed for humans? The New York Supreme Court is currently deciding on whether chimpanzees should be considered "legal persons" that have a right to bodily liberty. According to The Washington Post, animal rights lawyer Stephen Wise argues that "legal personhood does not require the ability to assume duties or responsibilities — children cannot do so, for example, nor can some Alzheimer’s patients." In an even more surprising pushing of conventional legal boundaries, the Whanganui River in New Zealand was recently recognized as a non-legal person and will be allowed to represent itself through human representatives. This historic first was quickly followed by an Indian court declaring the Ganges River and one of its tributaries as legal persons. According to The Guardian, "the decision, which was welcomed by environmentalists, means that polluting or damaging the rivers will be legally equivalent to harming a person."

Developments in International Justice

dColombia's senate has approved a constitutional reform allowing the establishment of a special judicial system to address incidents that occurred over its decades-long civil war with the Revolutionary Armed Forces of Colombia (FARC), a conflict which also drew in right-wing paramilitary units and drug cartels. The creation of such a system – which will comprise a truth commission, a unit to search for missing people, and a temporary, autonomous body to try crimes committed during the armed conflict – was a key component of the historic peace agreement that was brokered in November 2016. The constitutional reform still must survive a review by the constitutional court before Colombia's President Santos – whose role in the peace deal won him a Nobel Prize –  can sign it into law. Read more from JusticeInfo.

dSri Lanka is another country struggling to deal with the aftermath of prolonged civil war. However, according to the Sri Lanka Monitoring Accountability Panel (MAP), the government is not truly working on transitional justice. Indeed, it has taken no concrete steps toward establishing "a hybrid special court to try war crimes and crimes against humanity allegedly committed by all parties to the armed conflict," as indicated under the October 2015 Resolution of the Human Rights Council (HRC) on "Promoting reconciliation, accountability and human rights in Sri Lanka." According to MAP's second report, “It has become increasingly obvious in recent months that what little political will existed on the part of the current Government of Sri Lanka one year ago has now evaporated, almost entirely. Seemingly, the Sirisena administration has been acting in bad faith for some time with respect to its commitments under the HRC Resolution.” Access the full report at the Sri Lanka Guardian

fThe United States failed to appear at the recently concluded regular session of the Inter-American Commission on Human Rights, despite the three hearings scheduled to address human rights issues in the US – one on Case 12.545, Isamu Carlos Shibayama and others; another on policies that prevent access to asylum in the United States; and another on the impact of the following executive orders:  “Border Security and Immigration Enforcement Improvements,” “Protecting the Nation from Foreign Terrorist Entry into the United States,” and “Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects.” A Commission press release characterized the absence of US representatives as "troubling." The International Justice Resource Center was more forceful in its language about this incident, stating: "In a remarkable departure from recent administrations' engagement with the Commission, the United States failed to send a representative to participate in the hearing, which would have afforded the government an opportunity to defend its actions and answer the commissioners' questions." It should be noted that Cuba and Nicaragua were also absent from hearings related to their respective countries.

dThe European Court of Human Rights has issued a unanimous judgment holding that imprisoning individuals thousands of kilometers away from their families violates their right to private and family life protected under Article 8 of the European Convention on Human Rights. The applicants in Polyakova and Others v. Russia – comprising both prisoners and their family members – argued that distant incarceration made it difficult and expensive for visits to take place. According to Human Rights Europe, "The court held that the distance between the penal facilities and homes of the prisoners’ families – ranging from 2,000 to 8,000 kilometres – was so great that it had inflicted hardship on the persons concerned."

dIn a recent commentary, International Center for Transitional Justice President David Tolbert suggested some important next steps for the Independent Mechanism to assist in the investigation of serious crimes committed in Syria since March 2011. The Mechanism was established last December by the UN General Assembly with the aim of collecting and analyzing evidence about mass atrocities in Syria which could later be used by courts or tribunals and for the purposes of transitional justice processes. With his long experience working on multiple international criminal tribunals, Tolbert has a unique perspective on the Syria Mechanism. He stresses that it should first focus on understanding and analyzing the large amount of evidence already collected by Syrian civil society groups and the UN Human Rights Council Commission of Inquiry. He also stressed that witnesses to mass atrocities be protected, stating that this constitutes "a profound moral duty to those who put themselves in harm's way for the cause of justice." Finally, he underscores the importance of choosing experienced leaders for the Mechanism, individuals with "political and diplomatic acumen, and an understanding of how to manage an office focused on investigations in a very difficult terrain."

dIn two recent opinions, the European Court of Justice (ECJ) held that while an employer may prohibit a Muslim woman from wearing a headscarf at work through a rule applied consistently to all religious beliefs, an employer may not prohibit a Muslim woman from wearing religious clothing based on a customer’s preferences. Both Samira Achbita et al. v. G4S Secure Solutions NV and Asma Bougnaoui et al. v. Micropole SA concerned, with differing facts, an individual female Muslim employee who wished to wear a hijab at work. In both instances, this was not permitted by her employer and both employees were dismissed. The discrepant reasoning between Advocates General of the Court on the two cases, however, and the secondary finding that prohibiting a headscarf may constitute "indirect" if not "direct" discrimination, has led to some critical commentaries on the two ECJ opinions. Schona Jolly QC writes, for example: "What is immensely disappointing in the Achbita judgment is the lack of emphasis or weight which it places on the value of a diverse, tolerant and plural society and on the individual’s right to manifest his or her religion. It is likely to impact heavily on visible groups, and those where intersectional discrimination is already problematic." Journalist Faisal al Yafai, on the other hand, sees the two opinions as a victory for Muslim women: "The law must move in tandem with public opinion. And while public opinion is shifting, the overt wearing of political and religious symbols across the board is too big a leap. That’s why the court ruling is a victory for Muslim women: it creates a space for a conversation which will eventually shift the court of public opinion."

dThe United Nations has released a report detailing Secretary-General António Guterres' strategy to prevent and respond to sexual exploitation and abuse perpetrated by UN peacekeepers against vulnerable communities. The report summary states that the strategy "focuses on four main areas of action: putting victims first; ending impunity; engaging civil society and external partners; and improving strategic communications for education and transparency." The report comes in response to repeated allegations that soldiers serving as peacekeepers have, over the years, taken advantage of their position to abuse local populations in countries across Africa as well as in Haiti and the Balkans.

The International Labour Organization (ILO) asserted in a recent report that many Asian countries are denying the rights of indigenous peoples, the majority of whom live in that region. Relevant rights include those to participation and consultation, and to land and natural resources, as well as an array of economic, social and cultural rights. The report recommends that the States examined – Bangladesh, Cambodia, India, Indonesia, the Lao People’s Democratic Republic, Malaysia, Nepal, the Philippines, Thailand, and Viet Nam – should ensure increased coordination between indigenous communities and other domestic, regional, and international stakeholders. Read more on the topic from the International Justice Resource Center.


dThe International Criminal Court (ICC) has recently seen some notable developments.

Jean-Pierre Bemba, former vice-president of the Democratic Republic of the Congo (DRC) and a convicted ICC war criminal currently serving an 18-year sentence, has been found guilty of witness tampering at the Court. According to The Guardian, Bemba "was convicted of masterminding a network to bribe and manipulate at least 14 key witnesses, and had 'planned, authorised, and approved the illicit coaching' of the witnesses to get them to lie at his main trial." His new conviction brings with it one year of jail, to be served consecutively with his current term of imprisonment, and a fine of 300,000 euros. Four members of Bemba's defense team also received prison sentences and/or fines. This witness-tampering verdict and sentence are the first of their kind in the history of the ICC. Read more in a Court press release.

Several days after issuing the Bemba verdict, the ICC found Germain Katanga, convicted in 2014 of war crimes and crimes against humanity, to be liable for $1 million in reparations to his victims and their family members from the DRC village of Bogoro. The New York Times reports that the Court has "ordered that payments be made in small amounts of cash to individuals and used for projects benefiting the wider community… The ruling is notable for the court because it identifies the victims, estimates losses, sets amounts and directs the spending of funds." According to an ICC press release, "The judges awarded 297 victims with a symbolic compensation of USD 250 per victim as well as collective reparations in the form of support for housing, support for income‑generating activities, education aid and psychological support. Because of Mr Katanga's indigence, the Trust Fund for Victims was invited to consider using its resources for the reparations and to present an implementation plan by 27 June 2017."

Finally, the specter of South Africa's withdrawal from ICC jurisdiction seems to have been put to rest. According to the Coalition for the International Criminal Court, "On 13 March 2017, South African Minister of Justice and Correctional Services Michael Masutha withdrew the ICC Repeal Bill, intended to remove the country's Rome Statute implementing legislation, from further consideration before the South African Parliament. Last week, South Africa rescinded its official notification to the UN Secretary General of its intention to withdraw from the Rome Statute. This means that, for now, South Africa has stopped all internal and external processes regarding its withdrawal from the ICC Statute." South Africa's move to leave the ICC was met with an outcry from many quarters, including the International Commission of Jurists, which submitted a brief on the issue to the South African Parliamentary Portfolio Committee and Justice and Correctional Services.

Publications and Resources of Interest

dA newly published book by Karen J. Alter (Northwestern University) and Laurence R. Helfer (Duke University) provides a detailed assessment of the Andean Tribunal of Justice, which they characterize as the third most active international court. Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice (Oxford University Press 2017) explores the origins, practice, politics, and theoretical significance of the Andean Community legal system. It also offers a comparative analysis with the European Court of Justice, examining why the Andean Community legal order has developed differently despite being based on the European model. International Justice in the News subscribers may use the promotional code "ALAUTHC4" at the publisher's website to receive a 30% discount on the purchase price.

dThe Mechanism for International Criminal Tribunals (MICT), the residual mechanism for the International Criminal Tribunals for the former Yugoslavia and Rwanda, recently launched a new version of its Case Law Database (CLD). According to a MICT press release, the CLD is a search tool for precedent-setting case law for the ICTY, ICTR, and MICT. "The new CLD has expanded its collection to include more than 2,300 entries and covers all relevant case law from the establishment of each tribunal up until 31 December 2016. In addition, following an overhaul of its interface, the new CLD includes innovative search and access features developed to best meet the needs of researchers and legal practitioners."

dExperts on freedom of expression from the United Nations, Organization for Security and Cooperation in Europe, Inter-American Commission on Human Rights, and the African Commission on Human and Peoples' Rights recently issued a Joint Declaration on the phenomenon of disinformation, propaganda and so-called "fake news." According to Special Rapporteur Edison Lanza, "disinformation and propaganda strongly affect democracy: they erode the credibility of traditional media, interfere with the right of people to seek and receive information of all kinds, and may increase hostility and hatred against certain vulnerable groups in society. Therefore, we recognize the initiatives of civil society and the media to identify deliberately fake news, disinformation and propaganda, and raise awareness on these issues." Read more in a press release about the full text of the Joint Declaration.

sNuclear tests conducted last year by the Democratic People's Republic of Korea once again raise the question of the legality of such tests under international law. In an American Society of International Law Insight, scholar Daniel Rietiker examines the issue in light of contemporary events, including the fact that the Comprehensive Test Ban Treaty should have celebrated its 20th anniversary in 2016. He concludes, "It is in the hands of a few states, especially the United States, to save the treaty, since it is generally considered that its ratification would trigger a virtuous circle pushing China and then other states to ratify as well."

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

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