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.
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Spotlight on Language, Culture and Justice
The world of international criminal justice was recently rocked by the arrest of longtime fugitive-from-justice Félicien Kabuga, charged by the International Criminal Tribunal for Rwanda (ICTR) with multiple counts of genocide and crimes against humanity allegedly committed during the 1994 Rwandan genocide. Kabuga was a prominent Rwandan businessman whose financial contributions bankrolled the genocide. He was also founder of Radio Télévision Libre des Mille Collines, a station which the ICTR determined through its famous “Media case” (The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze) to have directly and publicly incited the commission of genocide through broadcasts that identified persons as Tutsis, provided their locations, described them as the enemy, and called for their elimination.
The Media case, along with The Prosecutor v. Tharcisse Muvunyi and The Prosecutor v. Simon Bikindi (pdf), grappled directly with complex linguistic and cultural phenomena, including the use of metaphorical terminology in the Kinyarwanda language to reference the Tutsi population and the act of killing, and the strategic “deployment” of Kinyarwanda proverbs and poetics to encourage violence. IJIN readers can explore how such phenomena manifested themselves at the ICTR and other tribunals by consulting the international criminal justice theme page of the Language, Culture and Justice Hub. The theme page features an extensive list of book-length publications, articles, oral histories and films that explore how issues of language and culture play out in situations of conflict, and then impact the transitional justice mechanisms created in their aftermath.
What comes next for Kabuga is not yet clear. The Africa Director of Human Rights Watch characterizes his arrest as “a major victory for victims and survivors of the genocide in Rwanda who have waited more than two decades to see this leading figure face justice.” Legal commentator Rashmi Raman explores what Kabuga's arrest and ensuing trial may signal for international criminal justice generally — it could not only invite a renewed scrutiny of the mainstream Rwandan genocide narrative created by international institutions since 1994 but also test the capacities and resources of the ICTR's successor mechanism. The Africa Report notes that Rwandans are sure to want Kabuga tried in a national court but that this is unlikely to happen for both legal and diplomatic reasons.
In a strange coincidence, the death of another ICTR fugitive, Augustin Bizimana, was confirmed just days after Kabuga's arrest.
People in the News
The European Court of Human Rights (ECtHR) has a new president. Robert Spano of Iceland was elected in April 2020 and took office in May 2020. He has been an ECtHR judge since 2013 and was serving as the Court's vice-president when elected. President Spano studied law in Iceland and the United Kingdom and has worked in a range of judicial, academic and expert positions at both the national and international level. At 47, Judge Spano is the youngest president in the 61-year history of the European Court.
International Criminal Court (ICC) Prosecutor Benjamin Gumpert QC was recently appointed to the position of circuit judge in the United Kingdom. Gumpert was called to the Bar of England and Wales in 1987. He joined the Crown Prosecution Service in 2010 as a Principle Crown Advocate before moving to the ICC in 2013 as a Senior Trial Lawyer. He was appointed Queen's Counsel in 2014. From 2003 to 2008 at the International Criminal Tribunal for Rwanda, Gumpert defended Justin Mugenzi, one of the Rwandan government ministers who were ultimately acquitted of planning and organizing genocide in Rwanda in 1994. Gumpert served as the senior trial lawyer in the ICC’s Dominic Ongwen case, and earlier the Uhuru Kenyatta case.
On 22 April 2020, the Secretary-General of the United Nations reinstated Michael Bohlander of Germany as the International Co-Investigating Judge of the Extraordinary Chambers in the Courts of Cambodia (ECCC), due to unexpected residual litigation before the Office of the Co-Investigating Judges in Case 004/2. Judge Bohlander had resigned with effect on 31 July 2019. Although there were media reports that his departure was due to internal ECCC conflicts, his resignation was, in fact, filed well before July 2019 and had nothing to do with a disagreement around the Closing Orders in Case 004. A recent press release by the ECCC International and National Co-Prosecutors provides an update on the Court’s continuing judicial activity.
Outgoing UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, has submitted the final report of his mandate. The topic of the report, “Disease Pandemics and the Freedom of Opinion and Expression,” reflects a growing concern about the impact of COVID-19 on human rights. In his report, the Special Rapporteur registers alarm that some efforts to combat the coronavirus disease may be failing to meet the standards of legality, necessity and proportionality. Kaye highlights five areas of concern: access to information, access to the internet, protection and promotion of the media, public health disinformation, and public health surveillance.
Climate activist Greta Thunberg and a group of other petitioners, aged 8 to 17, have pushed forward their legal complaint at the UN against countries they accuse of endangering children’s wellbeing through the climate crisis. They filed their initial landmark complaint — against Argentina, Brazil, France, Germany and Turkey — before the UN Committee on the Rights of the Child in September 2019. According to The Guardian, Brazil, France and Germany have claimed that the complaint should not be admissible by the Committee, but the children claim that the three countries are all failing to cut their emissions in line with the Paris Agreement.
Developments in International Justice
The African Court of Human and Peoples' Rights has recently seen the withdrawal of two member states — Benin and Côte d’Ivoire — from the optional declaration allowing individuals to submit cases directly to the court. This follows the withdrawal of Rwanda from the same declaration in 2016 and Tanzania in 2019. As explained in an Opinio Juris piece by Nicole De Silva and Misha Plagis, "[t]hese latest withdrawals not only undermine the Court’s role on the continent, but can also be situated within African states' broader practices of resistance to supranational adjudication, particularly when African regional courts uphold human rights, democracy, and the rule of law." Only six states currently hold to the declaration of individual petition, the authors note, so "the African Court is already falling short of its supposed status as a pan-African, continental human rights court." Learn more about resistance to the African Court in an Asymmetrical Haircuts podcast, "The Incredible Shrinking Court," with Misha Plagis and Alice Banens.
How should the international community respond to China's refusal to comply with the terms of the 2016 arbitral ruling around its island-building activities in the South China Sea, found to be in contravention of the UN Convention on the Law of the Sea (UNCLOS)? One commentator presents a simple remedy — make sure that China does not have a judge on the next bench of the International Tribunal on the Law of the Sea (ITLOS). Jonathan G. Odom, in a Lawfare blog post, notes that China has disregarded and disparaged the ruling over the past four years, and is even "taking more assertive actions in the South China Sea to intimidate other claimant states, some of which directly undercut elements of the [arbitral] tribunal's decision." Odom calls on the 167 states parties to UNCLOS, which will meet in June and elect seven new judges to serve on the 21-member ITLOS bench, to reject the Chinese nominee. This would be a legal and rules-based manner in which to register disapproval of China's behavior. "When casting their votes for which state parties should have the privilege of their nominee serving on ITLOS, the only question is this: Will those 160-plus national governments have the courage to seize that opportunity and vote with their conscience?"
Amazon is reopening its distribution centers in France after they were shut down in April due to a dispute with a labor union over the health and safety of workers in the context of the COVID-19 pandemic. The Tribunal Judiciaire (Trial Court) of Nanterre had ordered the French subsidiary of Amazon to limit the activities of its warehouses to processing only orders for items that were essential in coping with the COVID-19 pandemic: food, hygiene and medical products. The court gave Amazon France 24 hours to comply, after which it would incur fines of one million euros (about US$.1 million) per day and per infraction. Amazon appealed the decision but it was upheld by a higher court. After weeks of discussions with Amazon, the French labor union said it had "obtained health and security guarantees" for employees, along with a pay bump of €2 ($2.19) an hour for those returning voluntarily and schedule adjustments to help increase physical distancing. See the website of the International Labour Organisation for much more about COVID-19 and the world of work.
Those who suffered at the hands of former Chadian dictator Hissène Habré are protesting that they have yet to receive reparations four years after his historic atrocity conviction by an African Union-backed court in Senegal. Habré's trial marked the first time that the courts of one country prosecuted the former ruler of another for alleged human rights crimes. The Extraordinary African Chambers were also heralded by many as "an African solution to an African problem." Reed Brody of Human Rights Watch, who has worked with Habré's victims since 1999, noted that they "fought relentlessly for 25 years to bring the dictator and his henchmen to justice, and were awarded millions of euros, but they haven't seen one cent in reparations. … Many of the victims who scored these historic victories are in dire straits and in desperate need." An African Union Trust Fund has been mandated to raise the 125 million Euros needed for reparations, but it has yet to become operational.
The Inter-American Court of Human Rights (IACtHR) will hold its 135th Regular Period of Sessions from June 1st to July 31, 2020. The previous date for this session was changed, in accordance with the pandemic situation caused by COVID-19. According to Article 11 of the Rules of Procedure of the Inter-American Court, "in exceptional circumstances, the Presidency may, in consultation with the other Judges, change the dates of the sessions." Recently, the President of the Inter-American Court, Judge Elizabeth Odio Benito, said that "adapting our work to the current circumstances, the Inter-American Court will continue its work using information and communications technologies to achieve its functions." The upcoming Sessions will thus use virtual platforms to deliberate contentious cases, hold public hearings about advisory opinions, deliberate about monitoring compliance with judgments and review provisional measures and different administrative issues. Read more in this IACtHR press release (pdf).
The defense team of Bosco Ntaganda has warned the International Criminal Court that measures need to be taken in order to satisfy fair trial rights if the Court decides to use an online platform for their client's appeals hearing, currently scheduled for late June in The Hague. According to International Justice Monitor, the defense has outlined the following conditions: "any virtual hearing must allow for simultaneous display of multiple images; real-time French to English interpretation and transcription; privileged consultations between Ntaganda and his lawyers; closed sessions for reference to confidential evidence; and the ability for Ntaganda to be held in a location where he can participate in open and closed sessions and to potentially address the Appeals Chamber directly." Ntaganda's lawyers also specified that the public would need to have access to the hearings.
Publications and Resources of Interest
Although travel is currently out of the question for most of us, we can still virtually visit and learn about significant sites of international law. The Legal Sightseeing project looks at international law, considers how it presents itself to "the public," and seeks to explore its images, stories and audiences. The project is coordinated by Sofia Stolk and Renske Vos, who also recently published an article in the Leiden Journal of International Law, where they describe four examples of legal sightseeing sites and practices: the UN Headquarters' Visitor Centre in New York; the Just Peace festival in The Hague; the Memorium Nuremberg Trials Nuremberg Palace of Justice; and the exhibition "Hybrid Peace" in the Stroom art centre in The Hague, curated by Vasyl Cherepanyn. Read more about this project from the Asser Institute.
An article recently published in the Journal of International Criminal Justice examines how judges approach a critical aspect of their function in international criminal trials. "Judicial Witness Assessments at the ICTY, ICTR and ICC: Is There 'Standard Practice' in International Criminal Justice?" — authored by Gabrielė Chlevickaitė, Barbora Holà and Catrien Bijleveld — is based on all the trial judgments issued by the International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda and International Criminal Court between 1996 and 2019. The authors write, "To assess the truthfulness and accuracy of a witness, the judges at international criminal courts and tribunals must traverse cultural and linguistic barriers, time gaps, conflict-inspired biases, and traumatic circumstances, to name but a few. These special burdens, coupled with the complexity and scope of international crimes cases, beg careful scrutiny of the ways the judges approach the determination of the facts." The authors reflect upon the scientific validity of the criteria used and identify the areas that would most benefit from standardized procedures.
A recent online symposium, hosted by the Justice in Conflict blog, addresses the topic "Rethinking Peace and Justice." The six contributions to the symposium respond to a report of the same name issued by the Institute for Integrated Transitions. The report examines contemporary challenges around transitional justice and aims, according to Justice in Conflict, "to provoke an overdue discussion in the mediation and human rights fields on the benefits of adopting a less ideological approach to balancing peace and justice."