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.

July 2017

Dear subscribers,

International Justice in the News will take a break next month and resume in September 2017. Look for our next issue at that time with news items covering the intervening period. In the meantime, let's hope nothing too dramatic occurs in our shared global community.

Featured News

fWe are pleased to announce that the report of the 2016 session of the Brandeis Institute for International Judges (BIIJ) is now available.

The aim of BIIJ 2016 was to explore the nature of the authority of international courts and tribunals, the various challenges this authority may face in different types of jurisdictions, and the ways in which judicial institutions might enhance their authority, in the eyes of constituents, parties and the broader public. The theme took its inspiration in part from research currently being conducted by scholars of the iCourts Centre of Excellence for International Courts, Brandeis’ organizing partner in BIIJ 2016.

The 2016 report can be downloaded here. Summaries and reports from all past institutes are available at the BIIJ website.

People in the News

    Judge Elsa Kelly
The International Tribunal for the Law of the Sea (ITLOS) has five new judges. Mr. Oscar Cabello Sarubbi (Paraguay), Ms. Neeru Chadha (India), Mr. Kriangsak Kittichaisaree (Thailand), Mr. Roman Kolodkin (Russian Federation), and Ms. Liesbeth Lijnzaad (The Netherlands) were elected in June 2017 and will begin their nine-year terms on 1 October 2017. Two sitting judges were also re-elected: Judge Boualem Bouguetaia (Algeria) and Judge José Luís Jesus (Cabo Verde). For biographical information and details about the geographic distribution of ITLOS judges, see a Tribunal press release. It is notable that two women are among the newly elected judges. Since its establishment in 1996, the Tribunal has only had one woman on its expansive 21-member bench, Judge Elsa Kelly (Argentina), who was elected in 2011.  

    credit: Abdelhak Senna/AFP/Getty
For the first time, a senior political leader still in power is being tried on corruption charges. Vice President Teodorin Nguema Obiang of Equatorial Guinea is currently on trial in Paris for theft of public funds, money laundering, and other charges that together amount to kleptocracy. According to the Open Society Initiative, this criminal procedure "is due entirely to the dogged efforts of the French public interest law groups and nongovernmental organizations who for nearly a decade battled to push French prosecutors to launch what has become known as the biens mal acquis—or ill-gotten gains—investigation." The trial of Obiang can be followed through the Global Anti-Corruption Blog.

    Ujal Bhatia at BIIJ 2016
Ujal Singh Bhatia (BIIJ 2016), chairman of the Appellate Body of the World Trade Organization, has publicly observed that his institution is dealing with large and complex cases that are creating a slow-down in the global trade dispute resolution system. According to Reuters, the largest WTO cases include a dispute between the European Union and the United States over funding for aircraft giants Boeing and Airbus, and a four-country attempt to stop Australia's stringent anti-tobacco laws. According to Bhatia, recent appeals have covered diverse areas of trade law, including environmental protection, renewable energy subsidies, tax evasion, money laundering, patent protection, food safety, animal welfare, consumer information and more. Furthermore, as the WTO is run by its 164 members, any changes to its rules or working practices that might alleviate the system overload need to be agreed unanimously. Such reforms, however, can be very contentious.

fAydin Sefa Akay, Judge of the United Nations Mechanism for International Criminal Tribunals (MICT), has been convicted of being a member of a designated terrorist group in his native country, Turkey. He was arrested last year in a post-coup crackdown along with more than 40,000 people - including teachers, public officials and journalists - who were arrested, dismissed or sacked.  Judge Akay was detained for nine months and, if the appeal of his conviction fails, he faces more than seven years in prison. The MICT and the UN Security Council had both been vocal in calling for the release of Judge Akay, who should have enjoyed the diplomatic immunity associated with his UN position. Now that Judge Akay has been provisionally released pending appeal of his conviction, he has returned to his international judicial work. The MICT Appeals Chamber on which he serves recently issued a decision granting a request for review of the judgment in the case of Prosecutor v. Augustin Ngirabatware, which had its first instance proceeding at the International Criminal Tribunal for Rwanda. Read more in a MICT press release

fInternational Criminal Court (ICC) Prosecutor Fatou Bensouda has recently made public announcements regarding what some see as stalled justice processes. In an address before the UN Security Council, Bensouda announced that her office is renewing its investigatory efforts in the Darfur situation, where it is alleged that war crimes, crimes against humanity and genocide have been committed.  She called on the Security Council to fully support its own referral of the Darfur situation to the Court and ended her remarks by saying, "Should this Council invest in accountability by adequately supporting my Office's work in Darfur, it will surely reap its peace dividends." Bensouda has also recently called for the immediate arrest and transfer of two suspects in the Libya situation, also referred to the ICC by the Security Council. Saif Al-Islam Gaddafi, son of former Libyan dictator Muammar Gaddafi, had been held in custody in a Libyan prison until recently and his whereabouts are now unknown. An arrest warrant was unsealed more recently for Al-Tuhamy Mohamed Khaled. Both men are accused of crimes against humanity. Read more in an ICC press release.

                  current IACHR members
Joel Hernández García (Mexico), Antonia Urrejola Noguera (Chile), and Flávia Cristina Piovesan (Brazil) are the newly elected members of the Inter-American Commission on Human Rights (IACHR). According to the International Justice Resource Center, "The three new Commissioners were among a group of six candidates competing for the three vacant positions. Following criticism over lack of transparency and civil society involvement in the selection and election of new Commissioners to the IACHR, this election involved an independent panel organized by civil society to assess the qualifications of each of the candidates." Latin America Goes Global remarks that when the new commissioners begin their terms in January 2018, "it will comprise four women and three men and will be without an American for the first time since 2005. In retrospect, the decision not to send Secretary of State Rex Tillerson and for the U.S. not to attend the Commission’s 161 hearings on U.S. cases may likely have hurt U.S. candidate Doug Cassel’s chances."

dPresident Milorad Dodik of Bosnia's Serb Republic, Republika Srpska, has banned any teaching about the siege of Sarajevo and genocide in Srebrenica, denying for the first time that Bosnian Serb forces besieged and attacked people in the capital for years during the 1990s war. Balkan Insight quotes the following remark by President Dodik: “Here it is impossible to use schoolbooks from the Federation [Bosnia’s other, Bosniak and Croat-dominated entity] in which it is written that the Serbs committed genocide and held Sarajevo under siege. It’s not true and it will not be studied here.” According to Reuters, "More than 20 years since the war between Bosnian Serbs, Bosniaks and Croats, the Balkan country remains divided along ethnic lines, and students learn different versions of history." The failure of the International Criminal Tribunal for the former Yugoslavia to establish a shared narrative about events in the Balkans has been often noted, recently in a Justice Hub piece underscoring that local politics determines perceptions in the region rather than judgments rendered in The Hague.

Developments in International Justice

fHappy 40th birthday to the Additional Geneva Protocols! Adopted in June 1977, these important legal instruments reaffirmed and developed the rules of international humanitarian law (IHL) as articulated by the four Geneva Conventions of 1949. The Protocols strengthened the protection of victims of both international and non-international armed conflicts, and placed limits on the way wars must be fought. According to the website of the International Committee of the Red Cross, "Today, the Additional Protocols are among the most broadly ratified instruments in the world. Together with the Geneva Conventions of 1949, the Protocols form the foundations of IHL and are the cornerstone for the protection and respect of human dignity in armed conflicts. The Protocols were born out of the experience of war. The Additional Protocols still stand at the front line of contemporary conflicts, protecting civilians from the worst excesses of war and guiding parties to armed conflicts as they navigate new realities."

gFor the first time, the African Court of Human and Peoples' Rights (ACtHPR) has heard a case that does not allege a violation of its own principal legal instrument, the African Charter on Human and Peoples' Rights. While the Court has jurisdiction to hear applications concerning not only the African Charter but also “any other relevant human rights instrument ratified by the States concerned,” it has not done so up to now. In the case of APDH and IHRDA v. Mali, however, applicants allege that a recently enacted Malian law violates the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women, the Convention on the Elimination of All Forms of Discrimination Against Women, and the African Charter on the Rights and Welfare of the Child. The ACtHPR Monitor wonders whether, through its expansiveness, the Court might find itself embroiled in questions of overlapping jurisdiction. It concludes, "These issues will likely become more prescient depending on whether APDH and IHRDA v. Mali will be a one-off or whether it is indicative of a trend that will see the African Court consistently take on non-African Charter cases. Whatever the outcome, this case serves as another first in the African Court’s continued growth."

vIn a dramatic decision that has far-reaching implications for the company, the European Union has fined Google €2.42 billion ($2.7 billion) for abusing its dominance of the search engine market in building its online shopping service.  By artificially and illegally promoting its own price comparison service in searches, Google denied both its consumers real choice and rival firms the ability to compete on a level playing field, European regulators said. The New York Times reports that the move "highlights the aggressive stance that European officials have taken in regulating many of the world’s largest technology companies, going significantly further than their American counterparts." The Silicon Valley giant has 90 days to stop its illegal activities and explain how it will reform its ways or face fines of up to €10.6 million a day. Google has responded that it "respectfully disagrees with the conclusions" of the European Union and is considering an appeal.

fIndia and Thailand both recently ratified important International Labour Organization (ILO) Conventions. India deposited the instruments of ratification for two conventions concerning child labor: the Minimum Age Convention, 1973 (No. 138) and the Worst Forms of Child Labour Convention, 1999 (No. 182). Thailand ratified the Discrimination (Employment and Occupation) Convention, 1958, (No.111),  which is among the most widely ratified ILO Conventions. All three conventions are included in the ILO’s eight fundamental conventions which the ILO believes provide a framework for protecting rights at work.

dThe European Court of Human Rights (ECtHR) has ruled that Russia's prohibition of what it calls "the promotion of homosexuality," codified into national law in 2013, is discriminatory and violates freedom of expression. The judgment in Bayev and Others v. Russia found that “the very purpose of the laws and the way they were formulated and applied” was “discriminatory and, over all, served no legitimate public interest.” The Court ordered Russia to pay the three gay activists who brought the case a total of 43,000 euros in damages. Read more from Human Rights Europe.

credit: Irish Human Rights and Equality Commission
The fight against gender-based violence has seen two advances in the past month.

The newly appointed UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Agnes Callamard, presented a report in which she addressed the key elements of a gender-sensitive approach to the right to life. She concluded that gender-based killings may constitute arbitrary execution and that systemic discrimination based on sex, gender identity, or sexual orientation that denies basic conditions guaranteeing life – like access to food, water, health care, and housing – may violate the right to life.

The European Union has officially signed the Council of Europe (CoE) Convention on Preventing and Combating Violence against Women and Domestic Violence, the so-called "Istanbul Convention." According to the CoE, the convention "is based on the understanding that violence against women is a form of gender-based violence that is committed against women because they are women. It is the obligation of the state to address it fully in all its forms and to take measures to prevent violence against women, protect its victims and prosecute the perpetrators… The convention leaves no doubt: there can be no real equality between women and men if women experience gender-based violence on a large-scale and state agencies and institutions turn a blind eye."

vThe Special Tribunal for Lebanon (STL) has been dealing with a new and challenging type of evidence in the Ayyash et al. case – cellular data that can supposedly be used to track the movements of accused persons at key moments in relation to the bombing of former Lebanese Prime Minister Rafik Hariri in 2005. According to Lebanon's Daily Star, "prosecutors have used the movement and coordination between various cell phones attributed to individuals and color-coded cell networks to track the alleged conspiracy leading up to the attack as well as to identify the defendants in the case." Telecommunications experts have testified for the prosecution and their expertise has been questioned by the defense. The STL recently made available its own Primer on Telecommunications Evidence. The STL explains in the primer, "This document provides an overview of some of the technical terms and concepts at issue in the Ayyash et al. case before the Special Tribunal for Lebanon. The information is presented to aid members of the public, journalists, and other interested parties in understanding the very complex evidence described in other public information documents produced by the Tribunal, such as the monthly STL Bulletin." Hearings in the Ayyash trial are just being completed.

              Bosco Ntganda at the ICC
The Appeals Chamber of the ICC, presided by Judge Sanji Monageng, recently ruled in the Ntganda case on an issue never before addressed by an international criminal tribunal – whether the definition of "war crime" extends to a situation where perpetrators and victims are members of the same armed force or group. The case involves instances of rape and sexual slavery that occurred within Les Forces Patriotiques pour la Libération du Congo, commanded by Bosco Ntganda. According to an ICC press release, the judgment holds that "international humanitarian law not only governs actions of parties to the conflict in relation to each other but also concerns itself with protecting vulnerable persons during armed conflict and assuring fundamental guarantees to persons not taking active part in the hostilities. As such, international humanitarian law does not contain a general rule that categorically excludes members of an armed group from protection against crimes committed by members of the same armed group."

This judgment has engendered a flurry of commentary. Rosemary Grey explains in an IntLawGrrls blogpost that the judgment "acknowledged the Defence's concerns of 'judicial activism', and its protests against an overly broad interpretation of the crimes. However, the Chambers pointed out that the ICC's definition of war crimes requires that the sexual abuse 'took place in the context of and was associated with' an armed conflict. In the Chamber's view, this definitional requirement is enough to prevent an unduly broad interpretation of the war crimes of rape and sexual slavery."

International criminal law scholar Kevin Jon Heller rejects, however, the reasoning of the Appeals Chamber. He writes that "an act cannot be a war crime unless it violates a rule of international humanitarian law," and that the circumstances in the Ntganda case do not, in fact, represent a violation of the relevant Geneva Conventions and Additional Protocols. Scholar Luigi Prosperi is less harsh in his commentary, which sheds light on a fundamental step in the Appeals Chamber's reasoning which he refers to as the "systematic argument." But while he contends that the Chamber was "not wrong," he notes that it "could have been more right."

Publications and Resources of Interest

fA forthcoming book chapter by Jenia Iontcheva Turner, "Defense Perspectives on Fairness and Efficiency at the International Criminal Court," explores the tension between striving for efficiency and speedy trials on the one hand, and safeguarding fundamental aspects of the criminal process, such as the protection of individual rights and the search for truth, on the other. By analyzing a survey of international criminal defense attorneys at the ICC, Turner describes how the sharper focus on expediting proceedings at the ICC has affected defense rights and interests, and how members of defense teams view various pressures emanating from judges, the Registry, and the Assembly of States Parties.

dA new book by Thomas Antkowiak and Alejandra Gonza offers a thorough, critical and accessible analysis of the American Convention on Human Rights, the main human rights treaty of the Americas. The American Convention on Human Rights: Essential Rights (Oxford University Press, 2017) closely reviews the jurisprudence of the two institutions charged with interpreting the Convention—the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights—with emphasis on the Court’s binding judgments.  It focuses on the rights most developed by the Court and Commission: the rights to equality, life, humane treatment, personal liberty, property, due process and judicial protection, as well as the freedom of expression and reparations.  Throughout the book, case law is examined with a victim-centered lens—identifying key jurisprudential developments, discussing critical areas that lack consistency and rigor, and proposing alternative conceptual approaches. The book's Table of Contents, Introduction and more can be read here.

cHow much has war changed over the centuries? Two recent commentaries from the International Committee of the Red Cross (ICRC) offer interesting historical perspectives.

An e-briefing examines humanitarian perspectives on the changing face of war. Enriched with various multimedia resources, it looks at the evolution of warfare from the eighteenth century until today, by reflecting on some momentous historical events and various developments and innovations in the field of humanitarian action and law.

An ICRC blogpost goes even farther back, drawing lessons for today from the Thirty Years War, which ended in 1648. "There are many parallels between this early protracted conflict and its present-day equivalents – in Yemen, South Sudan, Nigeria and Somalia, for example – where lasting political solutions have been difficult to achieve. The Thirty Years’ War profoundly altered Europe’s political landscape and social fabric. And it was this upheaval – not military conflict per se – that took the heaviest human toll. Almost four centuries on, the Thirty Years’ War teaches us how protracted conflict can bring about famine and spell disaster for civilians."

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

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