May 2020

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

Lawyers Need to Know More About Language

This article was originally published on 18 July 2019 at Language on the Move, a peer-reviewed sociolinguistics research site devoted to multilingualism, language learning and intercultural communication in the contexts of globalization and migration. It was authored by Laura Smith-Khan (Chancellor's Postdoctoral Research Fellow, University of Technology, Sydney, Australia) and Alexandra Grey (Lecturer and Postdoctoral Researcher, University of Sydney Law School), both members of the Language, Culture and Justice Hub. It discusses presentations made at the most recent Biennial Conference of the International Association of Forensic Linguists in Melbourne, Australia.

Cover of IAFL Conference 2019The conference brought together a broad range of researchers from across the globe, interested in a variety of language-related issues in diverse legal contexts. However, despite this diversity, a clear issue emerged amongst the many presentations: the importance of tackling problematic beliefs about language in a format that is accessible and perceived as legitimate by those working in legal settings.

Reading from the introduction of her new book, Researching Forensic Linguistics, the immediate past president of IAFL, Georgina Heydon [Royal Melbourne Institute of Technology], noted that miscarriages of justice sometimes arise because of "misconceptions about how language works." Further, while legal professionals may be adept experts in using language, this does not make them languages experts in the same was as linguists. This not only means they are "ill-equipped to provide linguistic expertise" but "are also largely unaware that linguistic expertise even exists."

Beliefs and misconceptions about language are theorised as "language ideologies" by sociolinguists; they are the "taken-for-granted assumptions about how language works," which inform the way people like lawyers, judges and police officers conduct their work. Language ideologies help shape the expectations such people have about communication, in ways that may impact their decision-making, such as whether a speaker is proficient enough in a particular language to participate in a police interview or appear as a court witness, or requires an interpreter. Some of the conference presentations directly identified and tackled language ideologies, while many others sought to contribute evidence to correcting them.

People in the News

Counsel calls for provisional release of prisoners during pandemic

In late March 2020, the Association of Defense Counsel practicing before the International Courts and Tribunals urged the UN International Residual Mechanism for Criminal Tribunals (IRMCT) to grant the early or provisional release of persons sentenced to imprisonment by the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY & ICTR) in light of the COVID-19 pandemic. The Association referenced a statement made by the UN High Commissioner for Human Rights that authorities should “release those particularly vulnerable to COVID-19, among them older detainees and those who are sick, as well as low-risk offenders.” IRMCT President Carmel Agius declined to follow this recommendation, however, in the case of several ICTY convicts imprisoned in northern Europe as well as an elderly ICTR convict serving his sentence in Benin. His decisions contrast with that of a Senegalese judge who granted former Chadian President Hissène Habré a two-month leave from a local prison where he is serving a life sentence for crimes against humanity after a 2016 conviction and sentencing by the Extraordinary African Chambers. Habré is ordered to return to prison upon expiration of the release order. An association of victims of Habré’s regime has insisted that the COVID-19 pandemic should not be used as an excuse for the definitive early release of the former dictator.

Judge Thomas Mensah of Ghana, Felipe Michelini of Uruguay

Two prominent figures in the world of international justice have recently passed away.

  • Thomas A. Mensah (Ghana), Judge and inaugural President of the International Tribunal for the Law of the Sea (ITLOS), has died at age 87. Elected to ITLOS in 1996, Judge Mensah served as a judge until 2005, and later as an ITLOS arbitrator as well as a judge ad hoc of the International Court of Justice. An obituary from The Guardian describes Mensah as a leading arbitrator of international maritime disputes and an important contributor to the establishment of ITLOS

  • Felipe Michelini (Uruguay), Chair of the Board of Directors for the Trust Fund for Victims (TFV) at the International Criminal Court (ICC), has died at age 59. Michelini was first elected to the TFV Board of Directors in 2015 and, upon re-election in December 2018, became its Chair. According to an ICC press release, Michelini spoke of the TFV's goals in this way: "There is no justice without reparations. Justice should not only be realised by ensuring victims' voices are heard and through a conviction, but by providing comprehensive reparations."

The pandemic's other scourge: increased incidents of domestic violence

It has been documented that many women and girls are finding themselves increasingly vulnerable due to the coronavirus. During the pandemic, there has been a marked uptick in domestic violence around the world, as described in a recent IntLawGrrls blog post by Lisa Davis and Yifat Susskind. The authors note that “domestic violence increases when communities face crisis,” with stress and anxiety acting as triggers. Furthermore, the measures taken to control COVID-19 are exacerbating the vulnerability of women, who are isolated at home with their abusers and lack the usual avenues of escape. The blogpost emphasizes that women in war-torn countries are particularly at risk because “intimate partner violence increases with calamity.”

Girls around the world may suffer from the pandemic for another reason — the loss of education. Al-Farnar Media reports that many girls in the developing world whose schools have closed may never return to complete their educations if families decline to invest in their daughters due to increased economic hardship. The lockdown necessitated by the coronavirus, reports the United Nations Population Fund, will also disrupt programs that aim to decrease child marriage, genital cutting, and unintended pregnancy.

Trump's decision to cut WHO funding called 'crime against humanity'

President Donald Trump's recent decision to cut World Health Organization (WHO) funding during the pandemic has been labelled a “crime against humanity” by a leading health expert. Trump declared that the United States, the largest contributor to WHO, would pause its funding for 60-90 days pending a review to assess the organization's role in “severely mismanaging and covering up the spread of the coronavirus.” Dr. Nahid Bhadelia, an infectious disease doctor and associate professor at Boston University's school of medicine, described the cut as “an absolute disaster. WHO is a global technical partner, the platform through which sovereign countries share data/technology, our eyes on the global scope of this pandemic.” WHO recently launched two new tools to help hospitals manage surges in COVID-19 patients: 1) the Health Workforce Estimator, which will assist countries in calculating the numbers of health workers they will need during the pandemic, based on projected numbers of moderate, severe and critical patients per day; and 2) the Adaptt Surge Planning Support Tool, which is intended to help policy-makers and senior planners estimate the number of beds required for moderate, severe and critical care, the dates of predicted bed shortages and the detailed human resources needed.

Developments in International Justice

Street artists charged with violating Myanmar speech laws

Three street artists have been charged with violating Myanmar's law criminalizing speech that “insults” religion. They were arrested after Buddhist hardliners complained of the artists' mural which depicts a grim reaper figure, who resembles a Buddhist monk, spreading the COVID-19 virus. After the artists posted a photo of their completed mural on social media in early April, they were overwhelmed by hate speech online, leading them to paint over it. Human Rights Watch stated of the incident: “Myanmar’s authorities caved to outrageous demands by Buddhist ultranationalists to prosecute three street artists for expressing their views. At a time when the Myanmar government needs to be doing more to educate the populace about the coronavirus crisis, arresting those bringing attention to the issue is all the more ridiculous. The charges should immediately be dropped.” HRW points out that the United Nations special rapporteur on the right to freedom of expression has specifically cited laws that prohibit “outraging religious feelings” as an example of overly broad laws that can be abused to censor discussion on matters of legitimate public interest.

Advocates worry social media channels inadvertently removing evidence of war crimes

Algorithms used by social media platforms to flag violent content may inadvertently be removing evidence of war crimes that could later prove crucial. A recent Time article reports that Facebook and YouTube have become reliant on algorithms to remove violent photos and videos, especially those whose purpose is radicalization or the spread of propaganda. Facebook confirmed to Time, for example, that a page created by a citizen journalist to chronicle the rapid reshaping of northern Syria's political map in the wake of US troop withdrawal was flagged in late 2019 by its algorithms as containing “extremist content” and subsequently removed. Time notes, “algorithms are notoriously worse than humans at understanding one crucial thing: context. Now, as Facebook and YouTube have come to rely on them more and more, even innocent photos and videos, especially from war zones, are being swept up and removed. Such content can serve a vital purpose for both civilians on the ground — for whom it provides vital real-time information — and human rights monitors far away.” The article mentions that in 2017, for the first time, the International Criminal Court issued an arrest warrant based solely on videos from Libya posted on social media.

Peru cited for arbitrary imprisonment, rape of transgender women

Logo of the Inter-American Court of Human RightsIn a recent ruling (pdf), the Inter-American Court of Human Rights (IACtHR) has held Peru responsible for the arbitrary detention and rape of a transgender woman. The International Bar Association's Human Rights Institute, which presented an amicus curiae in the case, applauded the ruling, which is the first by the IACtHR on a complaint of discriminatory torture against a member of the LGBTQI+ community. Jurist reports that in its decision, the IACtHR “noted the long history of discrimination and abuse against LGBT people. They also reiterated that LGBT people are part of a protected class and that discrimination based on sexual orientation or gender identity will not be tolerated by the court.”

Germany levels first-ever charge of genocide in Yazidi killing

An Iraqi man, allegedly an Islamic State terrorist, is on trial for the human trafficking, torture and murder of a 5-year-old Yazidi girl in Frankfurt, Germany. Taha Al J. is alleged to have purchased a Yazidi woman and her 5-year-old daughter as slaves at an Islamic State base in Syria in 2015. They were given insufficient food and water and were subjected to constant punishment and humiliation, including beatings by Al J. He is further accused of having punished the minor by cuffing her to a window in the scorching heat, unprotected from the sun, which resulted in her death. Just Security notes that the indictment, available only in German, contains the first ever charge of genocide in relation to the Yazidis. A court spokeswoman claimed, “Taha Al-J. intended, according to the charges, to exterminate the religious minority of the Yazidi by his acquisition of the two Yazidi females and to have personal benefits from their services in his household.”

Report claims Syria has likely used chemical weapons

Logo of the Organization for the Prohibition of Chemical WeaponsThe Organization for the Prohibition of Chemical Weapons (OPCW) has released a report (pdf) through its Investigation and Identification Team (IIT) indicating that Syria has used or likely used chemical weapons. The report is based on the findings of investigations conducted between June 2019 and March 2020, which focused on the incidents in Ltamenah, Syrian Arab Republic on 24, 25, and 30 March 2017. The IIT's investigation and analysis included a comprehensive review of all of the information obtained including: interviews with persons who were present in the relevant places at the time of the incidents; analysis of samples and remnants collected at the sites of the incidents; review of the symptomatology reported by casualties and medical staff; examination of imagery, including satellite images; and extensive consultation of experts.

Caribbean Court of Justice rules on Revised Treaty of Chaguaramas

Logo of the Caribbean Court of JusticeThe Caribbean Court of Justice (CCJ) has issued its first advisory opinion (pdf) in response to a request for interpretation of the Revised Treaty of Chaguaramas. According to ASIL Insights, the Court was asked by the Heads of the Caribbean Community (CARICOM) to give its opinion on two questions relating to freedom of movement. The questions concerned a decision by the CARICOM Heads a) to enlarge the list of CARICOM workers who were entitled to seek employment in each other's country by including agricultural workers and security guards (“the enlargement decision”), and b) to agree to the requests made by the states of Antigua and Barbuda and St. Kitts and Nevis to opt out of that decision for a period of five years. Specifically, the Court was asked whether the opt-out was lawful, and whether nationals of states that have opted out can still benefit from the new worker provisions. As laid out in the CCJ judgment, the Court advised that an opt-out is lawful as long as a certain conditions are satisfied, and also that nationals of the opt-out states who fall within the new worker categories can take advantage of the enlargement decision.

Inaugural World Art Day celebrated

World Art Day was celebrated for the first time on 15 April 2020. This new day, named during the 40th session of UNESCO's General Conference in 2019, aims to promote the development, diffusion and enjoyment of art. According to UNESCO, “Art nurtures creativity, innovation and cultural diversity for all peoples across the globe and plays an important role in sharing knowledge and encouraging curiosity and dialogue. These are qualities that art has always had, and will always have if we continue to support environments where artists and artistic freedom are promoted and protected. In this way, furthering the development of art also furthers our means to achieve a free and peaceful world.” UNESCO is also affirming the resilience of art and artists during this COVID-19 pandemic — when museums, concerts and other artistic experiences are unavailable — through the ResiliArt Movement. The movement “sheds light on the current state of creative industries amidst crisis through an exclusive global discussion with key industry professionals while capturing experiences and voices of resilience from artists — both established and emerging — on social media.”

Publications and Resources of Interest

Commentaries explore human rights during the COVID-19 pandemic

A number of recent commentaries have explored the status of human rights during the COVID-19 pandemic.

  • A piece by Adina Ponta from the American Society of International Law's Insights series, “Human Rights in the Time of Coronavirus,” notes that “natural calamities and armed conflicts have demonstrated that human rights are often the first casualties of a crisis.” It goes on to explore derogations from the International Covenant on Civil and Political Rights and the International Covenant on Economic, Cultural and Social Rights which can be invoked in times of a public emergency, in particular the rights to liberty, freedom of movement and health.

  • A post by Nani Jansen Reventlow on the IntLawGrrls blog, “Why COVID-19 Is a Crisis for Digital Rights” examines another set of rights that may be compromised during the pandemic. “New measures being hurried in to curb the spread of the virus, from ‘biosurveillence’ and online tracking to censorship, are potentially as world-changing as the disease itself. These changes aren't necessarily temporary, either: once in place, many of them can't be undone.” She notes that there has been a marked lack of transparency in the roll-out of such measures, “with many falling short of international human rights standards.”

  • Cover of "The Hidden Face of Rights toward a Politcs of Responsibilities"Three faculty from Harvard University's Carr Center for Human Rights Policy — Kathryn Sikkink, Timothy McCarthy and Mathias Risse — also recently weighed in on current challenges in “Examining the Coronavirus From the Lens of Human Rights” (pdf). They discuss the importance of rights during a pandemic and also how to balance the rights of individuals and communities at such a time. Sikkink references her new book, The Hidden Face of Rights: Toward a Politics of Responsibilities" (Yale University Press, 2020), which argues “that to fully implement human rights, we need to place more emphasis on the responsibility of all actors, and not just states, to take action together to make sure rights are enjoyed.”

  • Other commentaries published over the past weeks have called attention to how the pandemic may feed corruption (“Coronavirus Presents Bonanza for Kleptocrats”), how a public health crisis can be used to legitimize dictatorial power (“Victor Orban’s Viral Authoritarianism”), and how those most affected by the coronavirus may also become victims of special measures to contain it (“Covid-19 Security Measures No Excuse for Excessive Use of Force, Say UN Special Rapporteurs”).

Symposium stresses importance of choosing next prosecutor of ICC

Fatou Bensouda sitting in front of ICC logoOutgoing ICC prosecutor Fatou Bensouda.

A recent symposium has brought forward a wide variety of perspectives on the complex but crucial task, to be carried out by the Assembly of States Parties (ASP), of choosing the next prosecutor of the International Criminal Court. As stated by Mark Kersten, editor of Justice in Conflict — a co-host of the symposium along with Opinio Juris — it would be hard to overstate the importance of this process. “Even the ICC’s most enthusiastic supporters acknowledge that the Office of the Prosecutor (OTP) has struggled to conduct effective investigations and to mount convincing prosecutions. The choice of the next Prosecutor will have a profound effect on how well — or how poorly — the Court functions for the next eight years. Simply put: the ASP has to get this right.”

Find links to two dozen commentaries from leading figures in international justice, ranging from the need to consider #MeToo issues when choosing the next prosecutor, to reflections on the region or country from which he or she should hail, to recommendations for improving the OTP's investigative outcomes and handling of sensitive political challenges.