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 2017

People in the News

        Ratko Mladić
The International Criminal Tribunal for the Former Yugoslavia (ICTY) recently issued its final trial judgment in the high-profile case of Prosecutor v. Ratko Mladić. Mladić, who served as a Commander of the Bosnian Serb Army from 1992 to 1996, was convicted “of genocide and persecution, extermination, murder, and the inhumane act of forcible transfer in the area of Srebrenica in 1995; of persecution, extermination, murder, deportation and inhumane act of forcible transfer in municipalities throughout Bosnia-Herzegovina; of murder, terror and unlawful attacks on civilians in Sarajevo; and of hostage-taking of UN personnel.” He was ultimately acquitted of the charge of genocide in several municipalities in Bosnia-Herzegovina in 1992, although international legal expert Dov Jacobs raises questions about this finding. Mladić was sentenced to life imprisonment for his crimes. For commentary on the significance of the Mladić trial, read Daniel Terris’ Op-Ed in The Boston Globe.

Praljak caught on video taking poison.
Observers of international justice have quickly turned their attention, however, to the courtroom suicide of Slobodan Prajlak, whose conviction for a wide range of crimes in Prosecutor v. Jadranko Prlić et al. was upheld by the ICTY Appeals Chamber a week after the Mladić Trial Chamber judgment was issued. The New York Times reports, "Mr. Praljak’s suicide is the third by a defendant facing the tribunal, but the previous two had taken their lives in the court’s detention cells." This tragic event may leave a less-than-celebratory image in the public's mind as the ICTY officially closes its doors and transitions into the United Nations Mechanism for International Criminal Tribunals.

Sir Christopher Greenwood
Last month, the United Nations General Assembly and Security Council convened to elect five judges to the International Court of Justice (ICJ). After five rounds of simultaneous voting, only four received the necessary absolute majority in both bodies: Ronny Abraham (France), Abdulqawi Ahmed Yusuf (Somalia), and Antônio Augusto Cançado Trindade (Brazil) were re-elected, and Nawaf Salam (Lebanon) was elected for the first time. In a subsequent run-off election, sitting judges Christopher Greenwood (UK) and Dalveer Bhandari (India) battled to retain their respective seats on the bench. Anticipating defeat given Bhandari's overwhelming support in the General Assembly, the UK ultimately withdrew its candidate, leaving Bhandari to take the fifth seat. Many legal scholars view the upcoming absence of a British national from the ICJ bench – which will be a first since the Court's establishment in 1946 – as a blow to the UK’s international standing, one that will compound the impact of Brexit. It also seems to mark a growing decrease in the power of the Security Council on the international stage. With a growing consensus for a need to reform the Security Council, some scholars see this election as sowing the seeds for change.

         Credit: Human Rights Watch

The African Court of Human and Peoples' Rights (ACtHPR) has ruled that Rwandan opposition leader Victoire Ingabire Umuhoza did not receive a fair trial in her home country, that she had not denied or minimized the Tutsi genocide, and that her criticism of the government should have been allowed as part of her freedom of expression within Rwandan law. In 2010, Ingabire returned from a long exile in The Netherlands and attempted to run for president against incumbent President Paul Kagame, who has been in power since April 2000. She was arrested by Rwandan authorities, and subsequently tried and sentenced to 15 years of imprisonment for denial of the 1994 genocide against the Tutsi and “inciting Rwandans to rise up against the government.” During her presidential campaign, Ingabire had strongly promoted “dialogue, debate and democracy,” believing it necessary for Hutus and Tutsis to establish an open dialogue about what each suffered during the genocide and that both groups should be able to remember their dead. However, Rwandan law prevents Hutus from publically mourning Hutu victims of the genocide. Ultimately, Ingabire’s case was brought before the ACtHPR, whose recent judgment in favor of the plaintiff calls on the Rwandan government to take all necessary measures to restore Ingabire’s rights. It is not yet clear how the Rwandan government will respond.

Eduardo Ferrer
Mac-Gregor Poisot

The Inter-American Court of Human Rights (IACtHR) unanimously elected a new President and Vice-President of the court last month. Current Vice-President and Judge Eduardo Ferrer Mac-Gregor Poisot (Mexico) will begin his term as President on 1 January 2018. Judge Eduardo Vio Grossi (Chile) will commence his term as Vice-President at the same time. The President-elect has pledged to “reaffirm [the court] as a jurisdictional institution … for the defense of fundamental rights and the protection of human dignity.”

dThe trial of Eshetu Alemu, a Dutch-Ethiopian national accused of war crimes, has caught the world's attention. Alemu, who served under the former dictator Mengistu Haile Mariam, was charged by a Dutch court with ordering the execution of 75 people and the inhumane treatment of hundreds more. Alemu, who has resided in the Netherlands since the 1990s, had already been convicted of war crimes in absentia by an Ethiopian court and sentenced to life imprisonment. Given that the Ethiopian conviction could not be enforced in The Netherlands, the Dutch judicial system undertook its own prosecution. The Prosecutor on the case has demanded life imprisonment, even though Alemu asserts that they have the wrong man in custody. Alemu told the four judges on the case, “I was really shocked when I heard what prosecutors are accusing me of doing, that I could behave like that as a human being. I deny the charges against me.” The verdict on the Alemu case is expected within the next couple of weeks.

                   Credit: BBC

The UNESCO Courier (pp. 18-24) recently published an interview with Ahmad Al Faqi Al Mahdi, sentenced by the International Criminal Court (ICC) in September 2016 to nine years’ imprisonment for the destruction of cultural and historic monuments in Timbuktu, Mali. Al Mahdi was the first person charged at the ICC for this category of war crime, and also the first accused person to plead guilty. Earlier this year, the ICC ordered Al Mahdi to pay €2.7 million in compensation to the victims of his crimes. In this exclusive interview, Al Mahdi "describes the complex social and cultural situation in Northern Mali" and the factors that caused him to order the destruction of nine historic mausoleums, part of a UNESCO World Heritage Site.

Developments in International Justice

Adrian Coman in front of the
Constitutional Court of Romania
last year (The New York Times)
In late November, the Court of Justice of the European Union (CJEU) began proceedings in Coman and Others, a case involving Adrian Coman, a Romanian rights activist, and his American husband, Claibourn Robert Hamilton. Shortly after marrying in Belgium in 2010, where same-sex marriage has been legalized, Coman and Hamilton intended to move to Romania. However, Romanian authorities refused to recognize their relationship for residency purposes as it is one of six member states of the European Union (EU) with no legal recognition of same-sex couples. After the case was heard in various domestic courts for over three years, the Constitutional Court of Romania referred the case to the CJEU in November 2016. According to legal experts, this case could establish the same benefits and rights for same-sex and heterosexual spouses across the 28 EU member states, irrespective of an individual country’s stance on same-sex marriage.

                  OAS Session on Venezuela
Over the past two months, the Organization of American States (OAS) has convened unprecedented hearings in order to assemble witness testimonies on the situation in Venezuela. The objective of these hearings is to decide if the situation should be referred to the ICC for investigation. If the Organization takes this action, it would be the first regional body to make such a referral to the global court.

Haisam Omar Sakhanh, standing at far left
(The New York Times)
Even though the Syrian Civil War has ravaged the Middle Eastern country since March 2011, Syrians have only recently begun to see some accountability for the atrocities committed. Earlier in 2017, a former Syrian rebel, Haisam Omar Sakhanh, was tried for his role in the execution of seven Syrian soldiers in 2012. After fleeing Syria during the war, Sakhanh traveled to Sweden and applied for asylum before being arrested in March 2016. A video taken of the killings (see still image to right) was used as evidence in the case against Sakhanh and ultimately led to his conviction and sentence of life imprisonment in Sweden.

On another front, thirteen Syrian refugees in Germany, backed by human rights groups, have identified seventeen suspects whom they consider “most responsible for Assad’s brutal policies of repression.” A request for arrest warrants was filed under the principle of universal jurisdiction, which allows German courts to handle cases where neither the victims nor the perpetrators are German citizens. Some of the accused persons include top officials of Syria's National Security Bureau, Air Force Intelligence Directorate, defense ministry and military police.

With more than 330,000 people killed and millions displaced since the start of the conflict, the hope is that justice will soon prevail for victims of the Syrian conflict. Radio Sweden has reported that, according to Human Rights Watch, Sweden and Germany are at the forefront of prosecuting Syrian war crimes, and they also have access to many witnesses to the alleged crimes.

dThe European Court of Human Rights (ECtHR) recently ruled on criminal proceedings against prominent political leaders in two member states of the Council of Europe (CoE).

In the case of Haarde v. Iceland, the ECtHR held that there was no violation of either Article 6 (right to a fair trial) or Article 7 (no punishment without law) of the European Convention on Human Rights. Geir Haarde, the applicant and former Prime Minister of Iceland, was impeached for negligence in his management of Iceland’s banking crisis in 2008 and was found criminally liable. He asserted that his trial was not fair and that the legal provisions for his conviction were vague and unclear. However, the ECtHR concluded that both the collection of evidence and the proceedings of his trial were fair and that Haarde had incurred no violations of his rights. The court also found that the offense for which he was convicted was clearly defined by the law.

The case of Ilgar Mammadov v. Azerbaijan (No. 2) dealt with the criminal proceedings brought against opposition leader Ilgar Eldar oglu Mammadov. After protests in 2013 in the city of Ismayilli, he was convicted of mass disorder and has been imprisoned since that time. According to Human Rights Watch, the recent ruling finds that "Mammadov’s right to a fair trial had been violated due to 'serious shortcomings in the manner in which the evidence used to convict [him] had been admitted, examined and/or assessed'." In 2014, a first ECtHR case involving Mammadov resulted in a ruling that his pretrial detention was unlawful and aimed at silencing and punishing him for criticizing the government. The CoE's Committee of Ministers has issued more than a dozen resolutions requiring the Azerbaijani government to release Mammadov, and its ongoing refusal to do so may have ramifications for Azerbaijan's membership in the CoE.

xThe ICC finds itself in a moment of significant challenges.

Just weeks after Burundi officially withdrew from the Rome Statute, the ICC announced that the Office of the Prosecutor will open a full investigation into alleged crimes against humanity committed there. The investigation surrounds unrest that broke out in 2015 after President Pierre Nkurunziza announced he would run for a third term. Since the outbreak of violence, it is alleged that thousands have disappeared, been illegally detained, or tortured, and thousands more have been displaced. The actual authorization for the investigation was made shortly before the Court was to lose jurisdiction over Burundi but was kept under seal until after its official withdrawal, a timing that raises various procedural questions and which the government of Burundi claims is illegitimate. According to the ICC, this strategy was adopted to help victims and potential witnesses. Read more from TRTWorld. ICC Prosecutor Fatou Bensouda has also requested authorization to begin an investigation in Afghanistan into whether several actors committed crimes against humanity and other war crimes during the armed conflict that started in May 2003. However, given that both investigations will be opened proprio motu, or upon the authority of the Prosecutor, some legal scholars anticipate significant complications. Even if the court is successful in gathering evidence, arresting alleged perpetrators will be difficult without the support of relevant governments.

The Court is facing quite a different challenge after numerous documents were released in October 2017 by members of the European Investigative Collaboratives. The documents suggest that Luis Moreno Ocampo, the first Prosecutor of the ICC, made money after leaving the Court by assisting those suspected of committing crimes in Libya and other situation countries. Also, according to Der Spiegel, one of the media outlets involved in the investigation, "The documents paint a picture of a chief prosecutor who is compliant, craves attention, accepts conflicts of interest and apparently has a problem with money." These revelations have caused many observers to question whether the ICC can be trusted. A group of legal experts with deep experience in international criminal justice institutions, including Morten Bergsmo and Sam Muller, recently published an account of the rise and fall of Moreno Ocampo, with details about his autocratic practices. The authors argue that it is essential that the ICC responds appropriately in order to restore trust, especially among states that to date have declined to join the Rome Statute. "We should recognize that an international court will not be better than the integrity of its leaders," they note, and go on to suggest that the most effective solutions for rebuilding confidence in the ICC are more effective oversight and improved transparency.

Publications and Resources of Interest

dBelow is this month's featured excerpt from the Ad Hoc Tribunals Oral History Project. The Project aims to preserve the voices of individuals who worked to bring justice to the former Yugoslavia and Rwanda, and who contributed to the development and “institutionalization” of international criminal law during the early years of the ICTY and ICTR.

"No matter how much [SENSE has] done — and nobody has done more because nobody else was doing this — my feeling is that we have told maybe 10% of the [ICTY] story. We have a remaining 90% in our archive, in our heads, in our TV programs, in our tens of thousands of articles written. So the question is how to preserve all this stuff for the future, and how to continue explaining what happened during those twenty years. How to wait for the time when this will become relevant, when people will start to be interested in asking the questions and to have some confidence in the facts which —  Because the most important thing that happened here is not who was convicted and for how many years. It's what are the facts that have been established beyond reasonable doubt about the events which happened in the former Yugoslavia between 1991 and 1995. What we have now is a project for local documentation centers."

dAccess the full oral history transcript of SENSE journalist and ICTY documentarian Mirko Klarin here. Read about Klarin's continuing work with the SENSE Documentation Centre in Pula. Visit the interview collection page of the Ad Hoc Tribunals Oral History Project to explore the full range of available transcripts, and the Brandeis Institutional Repository to conduct a keyword search across the collection.

We invite educators to use the collection in teaching their students about the Ad Hoc Tribunals and the critical role they played in the development of international criminal justice.

dA recent CNN report about sub-Saharan African migrants being sold in "slave auctions" in Libya has prompted UN Secretary General Antonio Guterres to call for an immediate investigation into possible crimes against humanity. Several high-profile personalities have subsequently called attention to events in Libya. French soccer star Paul Pogba, of Guinean descent, put his wrists together as if handcuffed after scoring a goal for Manchester United. Ivorian reggae legend, Alpha Blondy, called on both the African Union and the Economic Community of West African States to take action. His remarks were also posted in a YouTube video clip (in French). Some Libyan citizens, appalled by local treatment of African migrants, quickly responded with a Twitter campaign called #LibyansAgainstSlavery

dNortheastern University scholar Karen J. Alter, a guest lecturer at the American Academy in Berlin during fall 2017, recently published an opinion piece entitled "The Future of International Law in an Age of Trump." Alter asks the following question: Can the international liberal order survive if America turns its back on its political commitment to multilateralism, human rights, and the rule of law? She notes that "President Trump seems unwilling to fully embrace the first two values and possibly the third as well." After providing some historical background on how US foreign policy and engagement have ebbed and flowed over the 20th century, Alter suggests that the world finds itself at a critical moment when populism –in the US and elsewhere – may pose a real threat to the international liberal order.

dIn a recent IntLawGrrls blogpost, Nani Jansen Reventlow, a human rights lawyer, calls attention to the online harassment of female journalists and the threat it poses to democracy. Reventlow asserts that "online harassment of women journalists hinders the free press from operating as it should, which negatively affects the democratic process." She cites a recent case in Finland, where the journalist covering the case of a 14-year-old rape victim herself became the target of both rape and death threats. When the journalist reported the threats to local authorities, the regional prosecutor refused to investigate them, claiming that journalists need "to be able to endure more criticism than others." Reventlow argues that states must actively address harassment and establish legal systems to combat attacks of this nature. Ultimately, Reventlow stresses the need for society to view such attacks both “as a freedom of expression issue and as an issue of gender-based violence against women.”

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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