Programs in International Justice and Society

This commentary was contributed by Hub member Toni Shapiro-Phim, associate professor of Creativity, the Arts, and Social Transformation, Brandeis University.

Toni Shapiro-Phim

A "moral and collective reparation" project associated with the Extraordinary Chambers in the Courts of Cambodia (ECCC) — also known as the Khmer Rouge Tribunal — offers an example of the potency of expressive culture in truth-telling. It also demonstrates how innovation within time-honored tradition might nurture empathy for survivors of mass violence and contribute to the expansion and preservation of the historical record, while also encouraging discussion and strategizing about ways to address contemporary (in this case, gender-based) violence. Phka Sla Kraom Angkar, an initiative involving the commission and performance of a dance-drama based on testimonies of survivors of the Khmer Rouge's practice of "forced marriage" — along with a mobile exhibition, multigenerational dialogues, documentaries, oral histories, psychological support and research — premiered in 2017.

The ECCC was specially constituted to try Khmer Rouge leaders for crimes against humanity and genocide, and it brings together judges and law from both Cambodian and international spheres. Becoming fully operational in 2007, this hybrid court's jurisdiction has covered only senior leaders and those deemed to have been most responsible for the crimes perpetrated during the time of Khmer Rouge rule (when the country was known as Democratic Kampuchea), from mid-April 1975 to early January 1979. A groundbreaking element of the ECCC is its inclusion of "civil parties," granting victims the status of a legal party to the proceedings. As such, civil parties have had the right to request "moral and collective reparation," reparation that acknowledges the harm suffered and contributes to the mitigation of that harm, restores some sense of survivors' dignity and maintains collective memory.

In April 2014, Khieu Samphan (former head of state) and Nuon Chea (former deputy secretary of the Communist Party of Kampuchea and chairman of Democratic Kampuchea’s People's Assembly) were charged with, among other things, genocide against the Cham and Vietnamese and crimes against humanity, including a forced marriage practice (one that amounted to institutionalized rape) inflicted on the population. (Both men had earlier been convicted of additional crimes against humanity.) The trial ended in 2017 and, in November 2018, the Court announced its findings: both men were found guilty and, again, sentenced to life imprisonment.

Although reparations are only awarded following a conviction of the accused, reparations requests are developed and submitted prior to the conclusion of the case trial. The Victim Support Service, an official section of the ECCC, has a mandate to "identify, design, and implement reparation projects; and to seek external funding and support." Phka Sla Kraom Ankgar, a project of multiple nongovernmental organizations in collaboration with survivors of "forced marriage," was initially proposed in 2016.

Phka Sla. Photo: Nobuyuki Arai.

I introduce the dance-drama, Phka Sla, in the March 2020 special issue of the International Journal of Transitional Justice, which is devoted to creative approaches to transitional justice. Believing it essential to include the experiences and perspectives of those who interpret victim stories/testimonies when exploring the aftermath of mass violence, my focus during this initial research phase has been on the choreographer, dancers and musicians who took on the agony and brutality of others, not only as they were creating the dance-drama but also each time they performed it.

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COVID-19 could have a disastrous impact on populations in the world's least-developed countries, which lack the economic resources and medical infrastructure of their more developed counterparts. So reports the World Economic Forum, noting that "the ongoing death toll from the COVID-19 pandemic in developed countries such as Italy and the U.S. portends a looming disaster in the world's most impoverished countries." The forum lays out six crucial measures that the global community can implement to support LDCs in the coronavirus pandemic, which include equitable access to vaccines and medications, and connection of frontline health care workers to the technology, equipment and protocols they need.

King Willem-Alexander of The Netherlands recently apologized to Indonesia, during a state visit to that country, for what he called “excessive violence” on the part of the Dutch during the independence struggle of the former Dutch East Indies from 1945 to 1949. In 2011, the Dutch ambassador to Indonesia made the first formal apology for the 1947 massacre in West Java of hundreds of men and boys. This was followed two years later by an apology for summary executions on the island of Sulawesi during the same time period. In October 2019, a Dutch appeals court lifted the statute of limitations on a lawsuit by five Indonesians claiming compensation for the 1947 execution of their fathers by Dutch soldiers. Reactions to The Netherland’s conciliatory gestures are mixed; at least one legal commentator is skeptical of how mass atrocities have been rebranded by the King as excessive violence. 

The 43rd International Women's Day was celebrated on 8 March 2020 with widespread acknowledgements of women’s accomplishments and increased empowerment. This day also acts as a platform for women to fight for greater rights and justice all over the world. In Mexico City, women marched against gender violence and inequality, with the mothers of murdered girls leading the protest. In Turkey, thousands of mostly female demonstrators, defying a government ban, tried to break through police barricades in order to march along Istanbul's main pedestrian street in support of International Women's Day. Turkish police responded by firing tear gas to disperse the crowd. Events in Brazil took a political turn when tens of thousands of protesters in Sao Paulo, Rio de Janeiro and Brasilia denounced the administration of far-right President Jair Bolsonaro, who has made comments seen by many as offensive to women. Read more about these and other gatherings from The Press Democrat.

The International Criminal Court marked International Women's Days by honoring its female members. "Every day, the ICC counts on the invaluable contributions of remarkable women, be they judges, lawyers or staff in any number of demanding roles ranging from investigations to witness protection and IT support," said ICC President Judge Chile Eboe-Osuji. "But more work needs to be done, and everyone in the ICC — women as well as men — share the aim of strengthening gender balance and awareness in the international justice system." 

Antoine Ollivier has been elected deputy registrar (pdf) of the International Tribunal for the Law of the Sea. Succeeding Hinrichs Oyarce, Ollivier will serve as deputy registrar for a term of five years. Ollivier worked previously as a special assistant to the registrar of the International Court of Justice and at the Directorate for Legal Affairs of the Ministry of Foreign Affairs in Paris. He currently serves as an ICJ legal officer. Pursuant to the Rules of the Tribunal, the deputy registrar of the tribunal is elected from among candidates nominated by ITLOS judges. 

Millions of girls have been able to avoid "an unwanted marriage and an unwelcome end to their childhood" under a joint U.N. agency program, announced the head of the U.N. Children's Fund.  In 2016, the Global Programme to End Child Marriage, a multicountry initiative to protect the rights of millions of girls, was launched with the help of families, educators, health providers, governments, religious and community leaders. Its ambitious aim is to end the practice by 2030. The initiative will be renewed for three additional years with the hope of reaching more than 14 million adolescent girls across 12 countries in Africa, the Middle East and South Asia. 

United Nations Secretary-General António Guterres has congratulated Uzbekistan on passing legislation to end statelessness for approximately 50,000 people in the Central Asian country. "In granting nationality to those who previously had none, Uzbekistan is profoundly bettering the lives of a too-often invisible and vulnerable population," said the Secretary-General's spokesperson. Statelessness in the country and across the region is largely a result of the dissolution of the Soviet Union in 1991 and the formation of new states, which left hundreds of thousands throughout Central Asia stateless. As of 1 April 2020, citizenship will be granted to persons who were permanent residents in Uzbekistan prior to 1 January 1995. Their children will also be eligible for citizenship. According to the United Nations High Commissioner for Refugees, the new law also includes provisions to prevent statelessness and, for the first time, introduces simplified naturalization procedures, which will come into effect in September 2020. 

Farmers who gather flowers from the Espinhaço Mountain Range in Brazil have been placed on the list of Globally Important Agricultural Heritage Systems of the UN's Food and Agricultural Organization for their crucial role in enhancing biodiversity and preserving traditional knowledge. The farmers do so by gathering, processing and conserving native flowers in the highlands, herding livestock along centuries-old migration routes and collecting fruits and medicinal plants at lower altitudes to maintain traditional home gardens and larger crop fields along the foothills. "Thanks to their profound understanding of natural cycles and ecosystems, and their vast knowledge of native flora, the local communities manage all kinds of agricultural activities well adapted to each soil type, geographic and climatic characteristics to sustain their lives," said the FAO's heritage list coordinator, Yoshihide Endo. "These activities also contribute to preserving valuable crop varieties, native vegetation and landscapes in the area." 

The Irish Medical Council has acknowledged that refugees and asylum seekers with a medical background may be able to provide essential support during the COVID-19 pandemic. Doctors from outside the European Union and European Economic Area, who are not currently on the Irish medical register, are not entitled to practice in Ireland. However, the need for more doctors, nurses and other healthcare staff, as cases of COVID-19 increase, could be eased by streamlining the process by which non-Europeans can be registered. "Each application is assessed individually and there may be a requirement for a doctor applying to sit exams in addition to a language exam," reported the The Irish Times. "In light of the ongoing crisis, professional and clinical regulators [for the Health Service Executive] have waived their registration fees and applications are being fast-tracked to support health services during this time."

In response to the coronavirus pandemic, the International Federation of Red Cross and Red Crescent Societies, UNICEF and the World Health Organization have issued guidance for safe operations in schools and other educational facilities through the prevention, early detection and control of COVID-19. The guidance consists of critical considerations and practical checklists to keep schools safe, and it advises national and local authorities on how to adapt and implement emergency plans for educational facilities. According to the WHO website, "The guidance includes recommendations to mitigate against the possible negative impacts on children’s learning and well-being" in the event of school closures. "This means having solid plans in place to ensure the continuity of learning, including remote learning options such as online education strategies and radio broadcasts of academic content, and access to essential services for all children. These plans should also include necessary steps for the eventual safe reopening of schools."

The United Kingdom's Court of Appeal has ruled that plans to construct a third runway at Heathrow Airport are inconsistent with the Paris Agreement. According to The Guardian, "[t]he ruling is a major blow to the project at a time when public concern about the climate emergency is rising fast and the government has set a target in law of net zero emissions by 2050." It notes that Heathrow is already one of the busiest airports in the worlds, with 80 million passengers a year. A third runway could bring in 700 more planes a day and increase carbon emissions significantly. This Court of Appeal decision is the first major ruling in the world to be based on the Paris climate agreement and it is anticipated that it may inspire more legal challenges against high-carbon projects.

A recent judgment by an ICC Appeals Chamber has authorized the Office of the Prosecutor to open an investigation into alleged war crimes committed by the Taliban, Afghan and U.S. forces in Afghanistan since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and were committed on the territory of other States Parties to the Rome Statute. This judgment amended the 2019 decision of a Pre-Trial Chamber that rejected the prosecutor's 2017 request for an authorization, finding that the commencement of such an investigation in Afghanistan would not be in "the interests of justice."

The prosecutor has indicated that there is sufficient evidence to show that US troops "committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence" in Afghanistan in 2003 and 2004 and later in clandestine CIA facilities in Poland, Romania and Lithuania. While the US is not a party to the Court, the other four countries are, which means that crimes committed upon their territories may fall under ICC jurisdiction if those states are unwilling or unable to prosecute.

U.S. Secretary of State Mike Pompeo reacted to the judgment with anger, calling the judgment a "truly breathtaking action by an unaccountable, political institution masquerading as a legal body." Pompeo also threatened two individuals who work for the ICC's Office of the Prosecutor with punitive sanctions, along with their families. A statement by leading U.S. figures in the field of international justice, published by Just Security, calls Pompeo's response "an act of raw intimidation" and "shocking in its display of fear rather than strength." They add that it "can only undermine the confidence of those around the world who look to the United States for leadership and inspiration to protect the victims of the world's worst atrocities." 

In other ICC news, closing statements in the case of Prosecutor v. Dominic Ongwen have now been completed. The statements from both parties underscored the complex decision to be undertaken by the judges sitting on the case. Ongwen is a former Lord's Resistance Army commander, originally abducted as a child to serve with the LRA, who stands charged with 70 counts of war crimes and crimes against humanity allegedly committed between July 2002 and December 2005 in northern Uganda. ICC prosecutors asked the judges to convict Ongwen on all 70 counts, noting that his abduction does not make him immune from criminal responsibility. The defense argued that the prosecution's case had not been proven beyond a reasonable doubt, that the proceedings were rife with fair trial shortcomings, and that leniency should be shown because of Ongwen's dual victim/perpetrator status and untreated mental state. Ongwen's lead defense counsel proposed that, if found guilty and sentenced, Ongwen should be released from detention and allowed to serve his sentence under the supervision of traditional leaders in his home community. The International Justice Monitor reports, "this is the first time at the ICC that a defense team who have argued their client is not guilty have also made a closing statement in anticipation of a possible guilty verdict."

The Committee on Consumer Protection of the Association of Southeast Asian Nations has developed a Code of Conduct for online businesses in the region so that they will act responsibly and fairly towards consumers. The code corresponds to initiatives under the ASEAN Strategic Action Plan for Consumer Protection 2025 and the ASEAN E-Commerce Work Programme. It is also consistent with the ASEAN High-Level Principles on Consumer Protection (pdf), which calls for ASEAN Member States to provide effective protection to consumers on e-commerce. 

During a European Union-led donors' conference in Brussels in late February, the international community pledged over $1.25 billion to help Albania recover from a devastating earthquake. The funds will cover the country's reconstruction needs in the aftermath of the November 2019 earthquake, which was the strongest to hit Albania in more than 30 years and killed 51 people. The U.N. reports that the disaster increased Albania's poverty rate by 2.3% and has affected 10% of the country’s population. "U.N. agencies have joined forces in developing and implementing the recovery measures based on the sectoral needs as identified by the Government," said the Director of the UN Development Programme Regional Bureau for Europe and the Commonwealth of Independent States.

In mid-March, Israel's transitional government headed by Prime Minister Binyamin Netanyahu approved two separate emergency regulations that allow, among other things, the use of digital surveillance by the country's General Security Service and expanded search authority to the Israel Police to combat the spread of the coronavirus. In response to this move, civil rights activists and Arab lawmakers petitioned Israel's Supreme Court for a freeze on cell phone monitoring of potential virus carriers. Although Netanyahu's critics see the emergency regulations as a way of side-stepping democratic procedures in the battle against the pandemic, the Court declined to halt the monitoring, instead moving to ensure legislative oversight of the practice.

The Israeli government also approved emergency measures to limit movement of citizens and trade, shuttering cultural and recreational establishments as well as schools and universities and banning gatherings. Despite these restrictions, there has been a significant spike in infections in the Ultra-Orthodox community, and hundreds of people recently attended the funeral of a rabbi in violation of social distancing regulations. The government has now decided that asylum seekers from Sudan and Eritrea will receive the same treatment for the coronavirus as Israelis as asylum seekers must be considered "an inseparable part of the same epidemiological region."

There is also growing concern about the impacts of coronavirus on the West Bank and, in particular, Gaza. UN human rights expert Michael Lynk claims, "I am particularly worried about the potential impact of COVID-19 on Gaza. Its health care system was collapsing even before the pandemic. Its stocks of essential drugs are chronically low. Its natural sources of drinkable water are largely contaminated. Its electrical system provides sporadic power. Deep poverty amid appalling socio-economic conditions is prevalent throughout the Strip." He further explains how vulnerable Gaza is and how all responsible authorities — Israel, the Palestinian Authority and Hamas — have a duty to provide health services to this area. 

The connections of law and human rights to a global pandemic have been explored by diverse commentators in the past few weeks.

• In a recent video blog, Michael O’Flaherty of the European Union’s Fundamental Rights Agency talks about human rights concerns brought up by the coronavirus. He stresses that targeting certain national or ethnic groups as “responsible” for transmission of the disease is never appropriate and that limitations placed on rights usually enjoyed — such as freedom of movement and association — “must be proportionate to the good that they are seeking to achieve.” Read more about the EU’s work on rights during the COVID-19 outbreak. Visit the coronavirus page on the Human Rights Watch website to learn about how the pandemic is affecting vulnerable populations and creating opportunities for the restriction of rights in diverse countries.
• In an IntLawGrrls blogpost, Kristin Bergtora Sandvik discusses “the apparent frequency of criminalization strategies in early government responses to the Corona virus.” She maps out the types of criminalization that may occur during health pandemics and summarizes that they can hinder global health interventions in three ways: 1) criminalization might be so repressive that it has severe health-related impacts on the populations concerned; 2) criminalization may undermine and exacerbate challenges already faced by the public health infrastructure during an emergency; and 3) the repercussions of criminalization are most impactful in situations when the disease itself is the humanitarian crisis and where criminalization directly hampers efforts to contain and mitigate epidemics.
• A recent article by Anastasia Teletsky, published in the American Society of International Law’s Insights series, provides a historical overview of “International Governance of Global Pandemics.” For almost two centuries, states have struggled to develop controls and standardized quarantine procedures for epidemics as diverse as cholera, plague, yellow fever, smallpox and influenza. When the World Health Organization began operation in 1948, it “introduced better practices in international coordination around pandemics that are still being developed today as we react to novel health threats.” There is much experience to draw upon as states around the world confront COVID-19, including the successful containment of another coronavirus in 2003, SARS. Teletsky poses a question and puts forward a caution: “Will the COVID-19 situation be more like SARS where technical cooperation and aggressive national public health actions eventually achieved containment, or will the situation generate conflict between states? As COVID-19 continues to spread to far more countries than SARS spread to, cooperative prevention and preparation in the context of international public health law becomes essential to prevent the pandemic from becoming a borderless disaster.”

A new volume edited by Andrea Boggio, Cesare P.R. Romano and Jessica Almquist explores the regulatory structures around an important new genetic technology. Human Germline Genome Modification and the Right to Science: A Comparative Study of National Laws and Policy (Cambridge University Press, 2020) explores how the advent of the CRISPR/Cas9 class of genome editing tools is transforming not just science and medicine, but also law. When the genome of germline cells is modified, the modifications could be inherited, with far-reaching effects in time and scale. Legal systems are struggling to keep up with the CRISPR revolution and both lawyers and scientists are often confused about existing regulations. This book contains an analysis of the national regulatory framework in 18 selected countries around the world.

A recent report by Physicians for Human Rights characterizes the Trump administration’s policy of separating children and parents at the Mexican border as a form of torture. “You Will Never See Your Child Again” is based on the experience of 17 adults and nine children, most of whom have since been reunited after a forced separation. They have all exhibited symptoms and behaviors consistent with  trauma and its effects: being confused and upset, constantly worried, crying a lot, having sleeping difficulties, not eating well, having nightmares, being preoccupied, having severely depressed moods, overwhelming symptoms of anxiety, and physiological manifestations of panic and despair.

PHR experts have concluded that the U.S. government’s policy of family separation constitutes cruel, inhuman and degrading treatment and, in the cases evaluated, constitutes torture.