International Justice in the News is a monthly e-newsletter about the people involved in the work of international courts and tribunals, significant developments in international justice, and publications and resources of interest. This issue is edited by Leigh Swigart, director of Programs in International Justice and Society, and Renee Nakkab ’22.
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Spotlight on Language, Culture and Justice
This month's feature comes from Sara de Jong, lecturer at the Department of Politics, University of York. She currently researches the claims to protection and rights by former Locally Engaged Civilians in Western military campaigns and their advocates. She provided written and oral evidence for the UK's Defence Select Committee's 2018 report "Lost in Translation: Afghan Interpreters and other Locally Employed Citizens."
Recognising migrants as political actors is one important way to work against the representation of migrants as voiceless victims. Whereas institutional asylum frameworks create a circumscribed space for migrants' voices, in which 'asylum seekers are charged with narrating themselves in a condition of sanctuary' (Farrier 2012: 1), migrants have entered and created various other platforms to share their stories and demands. In these political spaces, migrants do not merely articulate personal grievances, but have added to a chorus of protest against undignified treatment. Former military interpreters from Afghanistan and Iraq, who had to leave their countries because their employment with Western forces left them exposed to threats, constitute a distinct and vocal subgroup of migrants who demand protection and rights.
Check out the call for papers for Jurilinguistics III, a conference whose aim is to enhance interdisciplinary reflection among researchers and practitioners in the intertwined areas of language and the law. The first two Jurilinguistics conferences, held in Seville in 2016 and 2018, brought together practitioners and scholars from a wide range of professions and fields for dialogue and a cross-fertilization of ideas. Deadline for abstract submission is March 1, 2020.
People in the News
The Sudanese government has announced that it will investigate atrocities committed against civilians in Darfur as early as 2002. This is the first indication that deposed President Omar Hassan al-Bashir and some of his allies could face charges related to alleged international crimes in Sudan.
Bashir ruled Sudan for almost three decades and was responsible for human rights abuses, economic decline and entrenched corruption. Warrants for the ex-dictator’s arrest were issued by the International Criminal Court in 2009 and 2010 on charges of genocide, war crimes and crimes against humanity but Bashir has never been arrested and extradited to The Hague. The 75-year-old former leader was convicted in late 2019 of money laundering and corruption by a Sudanese court, which resulted in only a two-year sentence.
Given that a number of Bashir’s former confidants are serving in the current transitional government, some observers feel that the new investigations may prove challenging. The director of the Africa regional program of the International Commission of Jurists stated, “[t]he transitional government of Sudan must demonstrate that the ongoing transition will not obscure past crimes and will take into account the demands of all populations in the different regions of the country, including Darfur, for long-lasting peace and justice.”
Sudan's attorney general recently declared that Bashir's transfer to the ICC is contingent on the outcome of peace negotiations in his country.
Justices Eldred Taylor-Camara and Miatta Maria Samba were sworn into the Residual Special Court for Sierra Leone at the end of 2019. The court was established by an agreement between the United Nations (UN) and the Government of Sierra Leone to carry on the continuing legal obligations of the initial court which concluded its mandate in December 2013. Under the RSCSL statute (pdf), 10 of the judges are appointed by the UN Secretary-General, and six by the Government of Sierra Leone. December 2019 also saw the launch of the Special Court’s Public Archives and Refurbished Peace Museum (pdf), a legacy project of the Court. An independent national institution dedicated to preserving the history of the country’s decade-long conflict and the story of the peace process, the museum and archives aim to break the culture of silence surrounding this chapter of Sierra Leone’s history.
An active-duty South Korean soldier was recently discharged due to her gender-reassignment surgery. According to NBC News, “South Korea prohibits transgender people from joining the military but has no specific laws on what to do with those who have sex reassignment operations during their time in service.” Byeon Hee-su, who was a staff sergeant in an army tank unit, enlisted in South Korea’s army as a man, then wished to continue serving as a woman after her surgery. Staff Sgt. Byun Hee-soo held a tearful news conference after hearing the decision on her discharge: “Regardless of my sexual identity, I’d like to show everyone that I can become one of the great soldiers who protect this country. … Please give me that chance.” Both the Seoul-based Center for Military Human Rights and Korea’s National Human Rights Commission consider the soldier’s discharge an act of discrimination.
Due to rising HIV and teen pregnancy rates, Brazil’s minister for women and families and evangelical pastor, Damares Alves, has formulated a new abstinence campaign for her country’s adolescents. To formulate her policy, Ms. Damares consulted with evangelical pastors who created the “I Chose to Wait” campaign. There is, however, clear opposition to Alves’ abstinence campaign. “We have 20 years of public health studies all around the world that show not only that abstinence policies are ineffective but that they have nefarious consequences when it comes to teen pregnancy and sexually transmitted diseases,” said Debora Diniz, a Brazilian law professor and reproductive rights activist. “We’re making public policy based on religious beliefs.”
Aside from blurring the line between church and state, Brazil is also pulling back from UN recommendations that urge a more comprehensive sexual education, as reflected in the organization’s International Technical Guidance on Sexuality Education. The Technical Guidance is designed to help education policy makers in all countries design accurate and age-appropriate curricula for children and young people aged 5 to 18-plus. The guide specifically mentions that sex education does not increase sexual activity, sexual risk-taking behavior, or STI/HIV infection rates. It also presents evidence showing that abstinence-only programs fail to prevent early sexual initiation or reduce the frequency of sex and number of partners among the young.
Charles Blé Goudé, an ally of former Ivory Coast president Laurent Gbagbo, has been sentenced in absentia to 20 years in prison by a court in Abidjan for his role in the civil war that followed the 2010 presidential election. During Gbagbo’s presidency, Blé Goudé led the Young Patriots street militia. Gbagbo and Blé Goudé were acquitted in January 2019 by the ICC on charges of crimes against humanity during the violence, in which some 3,000 people were killed. However, Ivorian prosecutors this month brought charges against Blé Goudé — who has remained in Europe while ICC prosecutors appeal the acquittals — for rape, torture and other crimes related to his role in the conflict. His defense lawyer at the ICC, Geert-Jan Knoops, stated his surprise at these developments: “I am quite astonished that a country that is supposed to cooperate with the ICC is not respecting the system. … Once a case is before the ICC, the domestic courts should abstain from prosecution for the same facts.”
Developments in International Justice
The international legal world has been sharply focused of late on the International Court of Justice (ICJ) and its case concerning charges brought by The Gambia against Myanmar for the latter's alleged genocide of its minority Rohingya population. A number of high-profile figures are involved in the case: former UN High Commissioner for Human Rights Navi Pillay was appointed by The Gambia as its ad hoc judge; international lawyer William Schabas is representing Myanmar; and Nobel Laureate Aung San Suu Kyi is leading Myanmar’s legal team, further eroding her already tarnished reputation. Read a summary of last December’s ICJ hearings and the arguments presented from EJIL:Talk!
In the meantime, the ICJ bench has quickly and unanimously ruled that provisional measures to protect the Rohingya from further violence are indicated. According to The Economist, this “was the first international court ruling against Myanmar, which stands accused of genocide, and a stark rebuke to Aung San Suu Kyi, the country's de facto leader. She visited the court in person last month to deny allegations that in 2017 the army systematically burned Rohingya villages, murdering and raping thousands and prompting more than 730,000 of the terrified victims to flee to neighbouring Bangladesh.” The ICJ has also fixed time limits for the filing of initial pleadings in the case. Myanmar’s response to the ICJ ruling was to deny that genocide has taken place and accuse human rights organizations of presenting a distorted picture of events.
The Executive Secretary of UN Climate Change announced at the UN COP25 climate change conference in Madrid last December that she hopes more nations will follow Italy and Mexico’s commitment to increase climate and environmental education. Italy’s Minister of Education, Innovation and Research stated that “[y]oung people are demanding that governments take climate change far more seriously. There are many areas of society where we must act, and act with increased ambition: compulsory education on these topics needs to be a key part of this national and international response to the big issues of our time.” The two countries propose that other nations use the celebration of Earth Day in April as the occasion to announce their plans for climate and environmental education, especially since this year is the 50th anniversary of Earth Day.
Mexico is particularly aware of climate change at the moment as its tourist beaches are being taken over by an invasive species of seaweed. Scientists note that the warming effects of climate change have allowed the Sargassum weed to spread, filling coastal waters and blocking sunlight essential to the growth of indigenous sea grasses and other plants. It is also estimated that nearly 40 million cubic tons of Sargassum is washing up on shores each year, releasing harmful methane gas which absorbs the sun’s heat and adds to the warming of the atmosphere. The UN Development Programme is making efforts to support the scientific community in Mexico so that it can manage invasive species and protect biodiversity.
The Sámi population, numbering around 100,000 and considered to be the last great indigenous people of Europe, has historically been the victim of violent assimilation campaigns, much like native populations in the Americas and Australia. Now, in parallel efforts across Scandinavia, truth commissions are being established to recognize this minority group and shed light on its often dark past. According to JusticeInfo, Norway set an example for this movement, establishing a Truth and Reconciliation Commission in 2017; its work is ongoing. In December 2019, it was reported that the Finnish plan was significantly advanced, with the Sami Parliament voting on and accepting the government’s plan for a truth and reconciliation commission. The Swedes were close behind, announcing — upon the repatriation of Sami remains that were collected as part of a 1950s archaeological dig — that their government intended to start a dialogue with Sami representatives on establishing a truth commission to investigate the Swedish state’s historical relationship with and abuses of the Sami people. Amnesty International in Sweden welcomed the announcement while noting that Sweden has not recognized the International Labor Organization’s Convention No. 169 on Indigenous Rights, the international legal framework that protects these rights. Russia would seem to be lagging behind its circumpolar neighbors, despite having its own small Sami population. Tuomas Aslak Juuso, Vice-President of the Sami Parliament of Finland, participated in the negotiations for the establishment of his country’s commission. He noted: “I think the Canadian example has triggered political will among Sami representatives. It was the crucial factor for us to take the leap and believe in this kind of process. The South African model is not very relevant for us, in a country that is quite peaceful.”
Two of Africa’s regional courts have recently been in the news. The Economic Community of West African States’ (ECOWAS) Community Court of Justice rejected a ban imposed by Sierra Leone’s government that bans pregnant girls from sitting exams and attending mainstream school. Amnesty International’s Marta Colomer noted that the “ruling is a landmark moment for the thousands of girls who have been excluded from school, and whose right to access education without discrimination has been violated for the past four years because of this inherently discriminatory ban.”
The Government of Tanzania has withdrawn the right of individual citizens and NGOs to directly seek justice before the African Court on Human and Peoples’ Rights, a continental court based in the northern Tanzanian city of Arusha. Human rights organizations have increasingly expressed grave concerns over growing repression by the government of President John Magufuli. In the words of Amnesty International’s Africa Advocacy Coordinator, “[t]his is yet more evidence of the government of Tanzania’s growing hostility towards human rights and human rights defenders… [This move] undermines the authority and legitimacy of the African Court and is an outright betrayal of efforts in Africa to establish strong and credible regional human rights bodies that can deliver justice and accountability.”
The U.N. health agency (WHO) reports that, each year, at least 55 million children in Europe suffer some form of physical, sexual, emotional or psychological violence. Accounting for underreporting, WHO estimated that of the 204 million children under the age of 18 across the region, 9.6% experience sexual exploitation, 22.9% physical abuse and 29.1% emotional harm. Moreover, 700 are murdered every year. WHO Europe has encouraged use of the INSPIRE package, “an evidence-based resource that supports countries committed to preventing and addressing assaults against children by identifying seven successful strategies to reduce levels of violence.” Ending “abuse, exploitation, trafficking and all forms of violence and torture against children” is also part of the U.N. Sustainable Development Goal No. 16.
The Assembly of State Parties (ASP) saw a number of critical items on its meeting agenda this past December. The Pacific island nation of Vanuatu called on the International Criminal Court (ICC) to expand its remit to include the crime of ecocide, the destruction of the natural environment. The ASP unanimously amended the Rome Statute to include, as a war crime, the intentional starvation of civilians in civil wars. An ASP “side event” explored the expansion of ICC jurisdiction to cover the prosecution of economic and financial crimes. Another focused on how cyberattacks might be covered by the ICC’s crime of aggression, particularly if launched by a state actor, and how such attacks by a non-state actor could potentially be covered by Article 8 of the Rome Statute (war crimes) and Article 7 (crimes against humanity). A significant outcome of the 2019 ASP was the creation of a review process for the work of the Court and the Rome Statute system, a process deemed necessary given the increase of what some consider politically-motivated attacks against the Court. It was determined that the review would focus on three areas: 1) governance; 2) judiciary; and 3) prosecution and investigation. A number of high-profile experts were chosen to sit on the review committee, including Richard Goldstone, Hassan Jallow, and Iain Bonomy. There was some commentary in the Twittersphere that the list was low on individuals with a background in international criminal defense.
Publications and Resources of Interest
In a recent article entitled “Legitimacy, Authority, and Performance: Contemporary Anxieties of International Courts and Tribunals,” legal scholar Cesare P.R. Romano reviews four volumes, all published in 2018, that explore the foundations upon which international courts (ICs) rest. Legitimacy and International Courts (CUP 2018), The Legitimacy of International Trade Courts and Tribunals (CUP 2018), and The Performance of International Courts and Tribunals (CUP 2018) are all products of the Norwegian think tank PluriCourts. International Court Authority (OUP 2018) is a creation of what is in many ways PluriCourts’ Danish counterpart, iCourts. Brandeis University is proud to have partnered with these research institutions on the 2016 (iCourts) and 2018 (PluriCourts) sessions of the Brandeis Institute for International Judges.
Romano writes that his “review essay does not aim to untangle the four books, or, more modestly, identify gaps and overlaps… Instead, it will try to understand the extent to which they are related to each other, identify the context in which they were conceived and written and the perceived problems that pushed scholarship in this specific direction.” He manages this difficult task in a skillful and thought-provoking way. In his conclusion, the reviewer notes that in recent years, there has been a “full-frontal assault on the very idea that underpins ICs: that international relations can and should be governed by the rule of law (with ICs being its trustees) instead of the rule of might.” It is thus a time of high anxiety for these institutions, and the attention paid to their underpinnings by the scholars who contributed to these four volumes is a reflection of this mood. Romano ends by exhorting his fellow scholars to link their debates to the real world. “We need to start taking stock of what has been done and what still needs to be done if we are to ensure that ICs will not go down in history as a temporary anomaly of the age between the end of the Cold War and the beginning of the Crisis of Democracies.”
The Open Society Foundation has created a powerful if whimsical animated short film titled "The Sad Little Fact." The piece is described this way: "In just over two minutes, the animated short … asks tough questions about the future of truth itself. Do facts matter in a world where some politicians and pundits lie so regularly and without any accountability? The answer is — and must be — yes, but restoring a public debate grounded in truth is going to take time. And it's going to require some challenging conversations." OSF also notes that one person, unnamed in the short, nonetheless looms large off screen — U.S. President Donald Trump, notorious for his regular disregard for the truth.
The International Review of the Red Cross recently launched a new online edition of "Memory and War." The ICRC website describes the publication like this: "From the long-term impact of hostilities on civilians and members of armed forces to missing persons and prospects for transitional justice and reconciliation, this edition unpacks the ways individual and collective memory of armed conflict impacts the lives of those who had to live through it." Chapters address a wide range of topics, including how the Rwandan Genocide is seen through the eyes of children, neuroscience and the eradication of war memories, and the legacy of memory and its impact on reconciliation in countries as diverse as Argentina, Cambodia, Sri Lanka, Liberia and Bosnia-Herzegovina.
A recent publication by Hans Corell, former Under-Secretary-General for Legal Affairs and Legal Counsel of the United Nations, outlines what he considers vital changes to be undertaken by the international organization. In "U.N. Security Council Reform: The Council Must Lead by Example" (Max Planck Yearbook of United Nations Law, Vol. 22 (2018). Eds. Frauke Lachenmann and Rüdiger Wolfrum. Brill Nijhoff Leiden/Boston. (p. 3-33), Corell does not suggest that Security Council permanent membership be extended, an often-proposed reform given the contemporary power and status of a number of states that were not world leaders when the U.N. was created. Instead, Corell advocates for a change in behavior by longstanding Security Council members.
"[T]he reform should focus on resolving the real problem with the Council, namely the manner in which permanent members sometimes behave. The exercise of the veto power must be in conformity with the U.N. Charter, which now must be viewed against the background of the development of international law since the U.N. was established more than seventy years ago. … [I]t is absolutely necessary that the five permanent members engage in a profound discussion about their performance and the way in which the veto power is exercised. Here there is a need for statesmanship. The members of the Security Council, and in particular the permanent members, must lead by example."