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.

March 2017

People in the News

The first two months of 2017 have seen some important news about judges who serve on the benches of international courts and tribunals.

dThe African Court on Human and Peoples' Rights (ACtHPR) has two new judges, both of them women. They are Hon. Justice Bensaoula Chafika of Algeria and Hon. Justice Chizumila Rose Tujilane of Malawi. As reported by the African Union, "For the first time in the history of the Court, there will be five female judges sitting on the 11-member court. The increased number of female Judges is the fulfilment of the adequate representation provided for in Article 12(2) and Article 14(3) of the Protocol establishing the court." Read more about this historic first at the ACtHPR in an IntLawGrrls post and visit the website of GQual to learn about a campaign promoting gender parity in international tribunals and monitoring bodies.

Kosovo Specialist Chambers,
The Hague
Nineteen persons have been appointed to the Roster of International Judges of the Kosovo Specialist Chambers, a body established to conduct trials pertaining to alleged violations of both international and domestic law in Kosovo from 1998 to 2000. The roster reads like a "Who's Who" of international justice, clearly demonstrating how judges and legal experts "recirculate" from one international court to another. The judges and their current or former affiliations include: Anne Power-Forde (Ireland), European Court of Human Rights; Thomas Laker (Germany), United Nations Dispute Tribunal; Michael Bohlander (Germany) and Keith Raynor (UK), Extraordinary Chambers in the Courts of Cambodia; Michèle Picard (France), International Criminal Tribunal for the former Yugoslavia (ICTY); Christine Van den Wyngaert (Belgium), International Criminal Court (ICC) and the ICTY; and Guénaël Mettraux (Switzerland), Defense counsel before many international courts and tribunals. Only the President of the Kosovo Specialist Chambers, Ekaterina Trendafilova – a former ICC judge –  will serve full-time in The Hague at the Chambers' headquarters. Read more about the Chambers, its judges, and its mandate from Balkan Insight.

fOpposition to the reappointment of Judge Per Christiansen (Norway) to the bench of the European Free Trade Agreement (EFTA) Court has resulted in accusations against the Norwegian government of political meddling. According to Politico, "Senior judges and academics in Norway have accused the government of undermining the court, saying it sets a bad example to authoritarian regimes across Europe. Critics suspect the move is intended as a way of replacing the judge with someone more explicitly pro-Norwegian, after local press reports that the government is upset after a string of court losses." In the end, Christiansen was reappointed for a half-mandate of three years. Liechtenstein, which is a member of EFTA along with Norway and Iceland, has now asked the EFTA Court to "clarify whether the abnormal mandate [of Judge Christiansen] could result in its rulings being declared invalid." 

eThe Mechanism for International Criminal Tribunals (MICT) has ordered the government of Turkey to release MICT Judge Aydin Sefa Akay from detention so that he can resume his judicial functions in Prosecutor v. Augustin Ngirabatware, a case dealing with the Rwandan genocide. Judge Akay was scooped up in Turkey's post-coup crackdown last fall, accused of sympathizing with the opposition with minimal evidence. According to a MICT press release, "the judges of the Mechanism enjoy privileges and immunities accorded to diplomatic envoys under international law when engaged on the business of the Mechanism, even while exercising their functions in their home country. The United Nations Secretary-General has formally asserted the diplomatic immunity of Judge Akay to the Turkish authorities and requested his immediate release and the cessation of all legal proceedings against him." In a blogpost, Michael G. Karnavas praises MICT President Theodor Meron for resisting pressure by the MICT Prosecution to replace Judge Akay so that the Ngirabatware case could proceed. Even the accused's defense counsel, Peter Robinson, has taken the moral high ground: "Robinson pressed for maintaining Judge Akay on the case, upholding the independence of the judiciary, and ensuring Judge Akay’s immunity remains intact and unendangered."

dIn other news, the international legal community is mourning the loss of one of its most eminent figures, Sir Elihu Lauterpacht. The son of renowned international lawyer Hersch Lauterpacht, "Sir Eli" played many roles over his lifetime, including those of public international lawyer, professor and scholar, judge, legal counsel and advisor. Perhaps his most enduring legacy will be the creation of the Research Centre for International Law in Cambridge, later renamed the Lauterpacht Centre for International Law and incorporated into the Cambridge University Faculty of Law. Read more about his life and accomplishments in an obituary in The Independent.

Developments in International Justice

gWhat the World Trade Organization (WTO) calls "a major milestone for the global trading system" entered into force on 22 February 2017.  The Trade Facilitation Agreement – which aims to streamline, simplify and standardize customs procedures – has now been ratified by two thirds of the WTO's 164 members. WTO Director General Roberto Azevêdo claims that by 2030, "the Agreement could add 2.7 percentage points per year to world trade growth and more than half a percentage point per year to world GDP growth. This impact would be greater than the elimination of all existing tariffs around the world." Read his full remarks at the WTO website

sWhat does regulation limiting the use of "conflict minerals" – those that fund war and human rights abuses in the Congo region – mean to the industries that have largely depended on them? According to a recent Washington Post article, companies like Apple, Intel, and Tiffany & Co. are against the Trump administration's proposed roll back of the United States "conflict minerals law," passed in 2010. The law pertains to the trade in tin, tungsten, tantalum and gold from mines in and around the Democratic Republic of Congo, which have historically been run by militias. "Companies say the conflict minerals law has created an expectation both inside their corporate headquarters and among consumers that their products will be 'conflict-free'."  This view is not universal however; it is clear that some industries that use these minerals would welcome changing or repealing the current law.

The ongoing conflict in Syria has given rise to a number of recent legal proceedings, both in domestic and international fora. 

                           Credit: BBC
The German Federal Prosecutor's Office has obtained an international arrest warrant for a high-ranking ISIS commander who is allegedly responsible for the abduction and sexual enslavement of Yazidi women women and girls.  The commander, whose name has not been released, is charged with genocide and war crimes perpetrated against the Yazidi minority in Syria and Iraq. Read more from Ara News.

A Swedish court has sentenced a former Syrian rebel fighter to life imprisonment for his participation in a 2012 mass execution. The defendant, who is a permanent Swedish resident, claimed that the killing of Syrian regime soldiers was ordered by a non-governmental court created in the context of the armed conflict. According to Jurist Paper Chase, the Stockholm District Court considered the rapidity of the execution order and concluded that "the defendant had committed serious crimes in violation of international law because the soldiers could not have received a fair trial in a matter of days."

The European Court of Human Rights (ECtHR) has ruled unanimously that Russia may not remove a Syrian national to his home country because the security and humanitarian situation there threatens his rights to life and prohibition of torture and inhuman or degrading treatment. Such removal would violate, among others, Article 5 of the European Convention on Human Rights, which guarantees the right to liberty. According to an ECtHR press release, "[d]etention with a view to expulsion will only be compatible with Article 5 § 1 of the Convention if the proceedings relating to expulsion are in process and pursued with due diligence, and if the detention is lawful and is not arbitrary."

xIn another ruling pertaining to the movement of persons in and out of Europe, the European Court of Justice (ECJ) has held that member states can reject asylum seekers involved in terrorist networks, even if they have not explicitly committed acts of terror. The ECJ upheld a decision by Belgium to deny an asylum claim by Mostafa Lounani, a Moroccan national sentenced to six years in prison in 2006 for being part of the “Moroccan Islamic Combatant Group.” Lounani applied for asylum in 2010 to escape deportation upon his release, arguing he would be persecuted if returned to Morocco. According to Politico, "The case was referred to the ECJ, which found Louhani's involvement in passport forgery and his assistance to jihadists traveling to Iraq constituted 'logistical support to the activities' of an terrorist organization and thus justified his 'exclusion from refugee status'."

dThe International Court of Justice (ICJ) has ruled that it may proceed with its case concerning the maritime delimitation between Somalia and Kenya in the Indian Ocean (Somalia v Kenya). According to an ICJ press release, Somalia instituted proceedings against Kenya in 2014 before the Court, requesting the latter to determine, on the basis of international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including the continental shelf beyond 200 nautical miles. Kenya, however, raised two preliminary objections, one concerning the jurisdiction of the Court, the other the admissibility of the Application. The ICJ has rejected both these objections and will now proceed with the delimitation.

Michael Bohlander (right) with fellow
co-investigating judge You Bunleng
The Extraordinary Chambers in the Courts of Cambodia (ECCC) – the so-called "Khmer Rouge Tribunal" – is the first court ever to have addressed a tricky legal question: can an attack against a state's or regime's own armed forces be considered an attack against a civilian population under the law relating to crimes against humanity applicable between 1975 and 1979? A year ago, ECCC international co-investigating judge Michael Bohlander invited scholars, academic organizations and any other organization operating in the field of international criminal law to submit written amicus curiae briefs on the issue. Bohlander recently ruled that such attacks could indeed be considered a crime against humanity "unless the armed forces were allied with or otherwise providing militarily relevant support to an opposing side in an armed conflict." Read the press release and access the full decision at the ECCC website.

dIn a landmark decision, the European Community of West African States (ECOWAS) Court of Justice has ruled admissible a case of domestic violence brought by two NGOs against the Nigerian government. The case involves severe domestic violence perpetrated by a Nigerian policeman against his fiancée and the alleged failure of the authorities to carry out an independent and impartial investigation of the incident. According to a blogpost by legal scholar Siobhán Airey, the NGOs "argued that the Nigerian government had violated several rights of the African Charter on Human and Peoples' Rights, the Protocol to the African Charter on the Rights of Women in Africa, and other international human rights agreements. These rights included the right to dignity, to freedom from torture and other forms of cruel, inhuman or degrading punishment, and the right to a remedy." Airey also notes that although this decision pertains only to the matter of the ECOWAS Court's jurisdiction, "it is certainly noteworthy for the clear signal communicated by the Court to continue to hear cases relating to women's human rights." The willingness of the ECOWAS Court to hear cases involving human rights, despite it being primarily a court of regional integration, has been noted by other commentators and scholars, including Alter et al (2013).

dIs there a sincere movement on the part of African states to leave the International Criminal Court (ICC)? Reporting and commentary on this question have abounded following a rapid succession of events over the past few weeks. In late January, the African Union (AU) released a statement from its Summit declaring a continent-wide withdrawal from the Court. This declaration followed the move by Burundi, Gambia and South Africa last fall to withdraw from the jurisdiction of the Court. The AU's decision is non-binding, however, and, as reported in Justice in Conflict, several African states immediately either signaled their support of the ICC or indicated that they needed time to think about the AU's "Withdrawal Strategy."

Significantly, since the release of the AU's strategy, no new African country has declared its intention to leave the ICC. Au contraire. In early February, the newly installed president of Gambia back-tracked on the withdrawal decision of his predecessor, who was widely known for his poor human rights record. And even more recently, as reported by Human Rights Watch, the South African High Court has ruled that "the government’s attempt to withdraw from the International Criminal Court was unconstitutional and invalid, as the government issued its withdrawal notice without consulting parliament." Allan Ngari of the Institute for Security Studies notes that the AU strategy actually pronounces itself on the need for African states to strengthen national criminal justice systems. He adds, "[a] strong recognition that the continent needs national laws, legal capacity and judicial mechanisms in place will only support the fight against impunity for international crimes, and help to provide access to justice for victims. This would be a true demonstration of the oft-repeated mantra, ‘African solutions to African problems’."

Despite the unsettled relationship between the ICC and Africa, the Court's work involving various situations on the continent continues. The Trust Fund for Victims (TFV) has released details of how it will spend the €1 million earmarked for collective reparations for victims in the Lubanga case. Judges have been asked by the defense team of Bosco Ntganda to make a site visit to the Democratic Republic of Congo to see locations where the accused and his troops allegedly committed crimes in 2002-03. And ICC President Silvia Fernádez has made her first trip to Uganda, along with TFV staff, to underscore the importance of victims in ICC procedures, and to conduct an outreach session with local communities and engage in dialogue with them and listen to their views and concerns.

Publications and Resources of Interest

sThe American Society of International Law (ASIL) is hosting a webcast series on "International Law and the Trump Administration." The ASIL website explains the series thus: "The policy choices made by the U.S. government over the coming months will have major implications for a range of vital international legal issues. This webcast series will take place over the course of the first 100 days of the Trump administration. It will bring together international law experts to provide concise, nonpartisan background and perspectives on these issues, and the content will be geared to the general public." To date, the series has addressed "The Future of International Agreements" and "U.S. Engagement with the United Nations." The third in the series, scheduled for 15 March 2017, will tackle "U.S. Participation in Global Trade Agreements."

dIn a provocative blog post, legal scholar Marko Milanovic evokes our contemporary experience with "post-truth" and "alternative facts" to enlighten how the work of international criminal courts and tribunals is viewed by the populations most affected by the crimes they were created to address. He writes, "Post-truth and alternative facts have historically been perfectly standard when it comes to inter-group conflicts, especially in societies which are not genuinely pluralist. Pick any random group conflict in the world, and you are likely to find that each group lives and breathes its own particular truth. In our international legal community, many have thought that it is the role of international criminal courts and tribunals to generate the ‘real’ truths that will eventually garner acceptance in societies riven by conflict. Unfortunately, however, there is little evidence that such truth-generating potential is anything but theoretical." Milanovic asserts that acceptance depends rather "on whether the tribunal's outputs – decisions on whom to prosecute, convict, or acquit – align with what these populations want to hear in their particular context and at that particular time." Read the whole blog post from EJIL: Talk!.

dIn response to the ongoing global refugee crisis, the Robert F. Kennedy Human Rights Center has recently made available a curriculum designed to help secondary school students learn about refugees and appreciate the challenges they face. The downloadable lesson plans, grounded in a human rights framework, provide "a gateway to understanding these topics through stories of youth refugees, photos, and videos, enabling students to make a tangible connection to what it is like to be a refugee." Download the full curriculum here.

dA recently published book by David H. Hoffman and Juliet S. Sorensen, Public Corruption and the Law: Cases and Materials, looks at the range of activities that might constitute public corruption, from bribery and embezzlement to corrupt forms of governance such as patronage and nepotism. The casebook addresses public corruption in both the United States and the international context, and "includes not only significant and illustrative appellate opinions, but also other writings on policy and contemporary debates about reform."

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

To comment, or to receive our monthly “International Justice in the News” e-letter, send a message here.