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
By Dr. Marie-Hélène Girard, Assistant Professor and Academic Coordinator, School of Continuing Studies, Graduate Diploma in Legal Translation, McGill University
Located in Montreal, one of the world's most bilingual cities, McGill University not only has a long tradition of building bridges between Canada's two official languages of English and French, but its law programs also proudly embrace the coexistence of the two legal systems — common and civil law — practised within the country. This bilingual, bijural environment is the ideal backdrop for a graduate-level legal translation program, which was recently expanded from 15 to 30 credits and converted to an entirely online format, thanks in part to funding from the federal justice department.
Noticing a glaring lack of data about the professions that are at the crossroads of language and the law in Canada, and as the newly minted assistant professor and academic coordinator of the program, I immediately set out to address this gap in knowledge. In July 2020, I launched a nationwide survey to find out more about the individuals currently working in legal translation, court interpreting, jurilinguistics and other related fields.
The 28-question survey was sent to jurists, translators, researchers, managers and others to document the occupational status, working realities and education/training activities of this diverse group of professionals. Response to the initiative has been very enthusiastic, with more than 300 surveys returned thus far.
Once compiled, the results of the survey will help provide a clearer profile of existing and future needs in this high-demand and growing sector. This information will be critical in helping to continuously improve the program under my remit. The ultimate goal is to prepare the next generation of legal translators and jurilinguists to play a key role in ensuring that Canadians in every jurisdiction can access justice in the official language of their choice.
For more information about the survey or the Graduate Diploma in Legal Translation at McGill's School of Continuing Studies, please contact me at email@example.com.
People in the News
The Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) has terminated the case against Ao An. The Cambodian News Service explains that Ao An was a Deputy Secretary in the Central Zone of Democratic Kampuchea during the Pol Pot dictatorship (1975-1979) and was allegedly involved in the death of thousands of civilians, including Cham Muslims. The ECCC International Co-Prosecutor requested an investigation of Ao An in 2009. The Supreme Court Chamber ruled (pdf), however, that "[n]otwithstanding agreement in relation to the great number of victims in the central zone ..., there was no agreement after 13 years of investigation that An was within the jurisdiction of the (ECCC)."
The Kenyan Forest Service (KFS) recently engaged in a large-scale eviction of Ogiek families from their homes in the Mau Forest, defying a 2017 judgment of the African Court on Human and Peoples' Rights that upheld the rights of this Indigenous group to their ancestral lands. According to Minority Rights, "KFS' increasingly brazen conduct flouts the landmark judgment in the Ogiek case, where the African Court ruled that by routinely subjecting the Ogiek to arbitrary forced evictions from their ancestral lands, Kenya had violated seven separate articles of the African Charter, including the Ogiek's right to property and natural resources. Crucially, the Court recognized that the Ogiek are indigenous peoples and have a critical role to play in safeguarding their local ecosystems and in conserving their ancestral territories and resources." The Nation, a Kenyan newspaper, reports that KFS authorities claim that critical forest land is being cleared for farming and grazing by the Ogiek themselves.
The International Residual Mechanism for Criminal Tribunals (MICT) has a new Registrar since 1 July 2020, Mr. Abubacarr Marie Tambadou of the Republic of The Gambia. MICT is the body responsible for residual tasks of the International Criminal Tribunals for the former Yugoslavia and Rwanda, whose formal mandates have ended. In accepting this new position, Tambadou left his role as the Attorney General and Minister of Justice of the Republic of The Gambia. Since this country's emergence from a decades-long dictatorship, Tambadou has been a leading voice on the rule of law and accountability, and he has driven The Gambia's transitional justice policy, which includes an ongoing Truth, Reconciliation and Reparations Commission. According to JusticeInfoNet, there is concern that Tambadou's departure may affect forward progress in this sphere.
UN High Commissioner for Human Rights Michelle Bachelet has condemned the violent response of Belarusian authorities to protests following the reelection of long-time President Aleksandr G. Lukashenko. "I remind the Belarusian authorities that the use of force during protests should always be exceptional and a measure of last resort," Bachelet stated, adding that there is an obligation to clearly differentiate "between any violent individuals and peaceful protesters, against whom force should not be used." Lukashenko has claimed 80% of the vote in what many Western governments consider to be a sham election. The New York Times reported that tens of thousands of protesters have filled the center of the capital, Minsk, to pressure Lukashenko to step down. They have been met with tear gas, arrests, and police brutality. In recent days, women protesters staged what they called a march of solidarity, waving flags, flowers and balloons and shouting to police that they should be protected. The accreditation of many foreign journalists covering the protests has also been revoked, as reported in Euronews.
On 29 and 30 July 2020, online hearings took place with the finalists in the selection process for the next International Criminal Court (ICC) Prosecutor (full recordings are available for both Day 1 and Day 2). The four finalists are Morris A. Anyah of Nigeria; Fergul Gaynor of Ireland; Susan Okalany of Uganda; and Richard Roy of Canada. They were asked a number of important questions about their background and expertise, and how they would handle various situations and challenges as head of the Office of the Prosecutor. The hearings were livestreamed and followed closely by the public.
Some observers have expressed concern about various aspects of the selection process, questioning the choice of these four candidates out of a longer list of 14. An Opinio Juris commentary, for example, points out that only one of the candidates is really electable according to established ICC practice: "the main problem with the shortlist may not relate to the qualifications and experience of the candidates. Rather, three of the four cannot be elected without violating either the custom of regional rotation (Mr. Morris A. Anyah and Mrs. Susan Okalany are both African as is the current ICC Prosecutor) or ICC Statute Article 42(2) which provides that the Prosecutor and the Deputy Prosecutor cannot have the same nationality, which excludes Mr. Richard Roy who is Canadian. That leaves Mr. Fergal Gaynor as the only electable candidate. …"
Other commentators were disturbed by the "digital divide" that became obvious during the hearings, with the only candidate participating from Africa losing her internet connection repeatedly. A Justice in Conflict blog post notes, "Okalany is the only woman short-listed for the job. She is also only candidate based in Africa (the Nigerian candidate is based in the United States). Some might note that internet connections are notoriously poor in countries like Uganda. And sure, that is true. We know that. The Assembly of States Parties of the ICC, which organized this event, knows that. The ICC knows that. The international community, however one might define it, knows that. That widespread, collective knowledge didn't stop Okalany from being put at a distinct disadvantage during the proceedings."
The part of the hearings that has received perhaps the most commentary has to do with a remark made to candidate Okalany on the second day. After she rejoined the interviews following an internet failure, Assembly of States Parties Vice-President Michal Mlynár asked Okalany, "Give me a smile" (at 1:32:33 on the Day 2 recording). The incident has since been dubbed #smilegate. Commentator Basak Etkin writes that although Mlynár's intention was probably to make Okalany more comfortable after numerous tech failures, it was widely perceived as patronizing and sexist — he would have been unlikely to ask the same of a male candidate. Etkin also notes that sexism is found at many levels at the ICC, a phenomenon that is captured well by the December 2019 Report of the Bureau on equitable geographical representation and gender balance in the recruitment of staff of the ICC. The report finds that 76% of P-1 positions are occupied by women, with descending percentages as the job classification rises. Only 33% of P-5 positions are held by women, and a mere 11% of top D-1 posts.
Seven Members of the International Tribunal for the Law of the Sea (ITLOS) were recently elected (pdf) by the States Parties to the United Nations Convention on the Law of the Sea, during the first in-person meeting to be held in the General Assembly Hall at United Nations Headquarters in New York since the pandemic lockdown in March 2020. The States Parties re-elected Judge David Attard (Malta) and Judge Markyan Kulyk (Ukraine), and elected Ms. Kathy-Ann Brown (Jamaica), Ms. Ida Caracciolo (Italy), Mr. Jielong Duan (China), Ms. María Teresa Infante Caffi (Chile), and Mr. Maurice Kamga (Cameroon). The judges were elected for a term of nine years commencing on 1 October 2020. The ITLOS bench has 21 judges and one-third of them are elected every three years. The ITLOS Statute requires that equitable geographical distribution be assured among the Members and that the principal legal systems of the world be represented. The Times of Malta proudly reported that Judge Attard, one of the world's foremost experts concerning international maritime law, was reelected unanimously by all 160 Member States.
Developments in International Justice
In the wake of the recent port explosion in Beirut, the World Food Programme (WFP) quickly set up a program to prevent food shortages in Lebanon. In addition to the enormous blast of 4 August, the country is suffering from an economic turndown along with the impacts of the COVID-19 pandemic. WFP Executive Director David Beasley announced that the organization is bringing 17,500 metric tons of wheat flour and a three-month supply of wheat into Lebanon "to help replenish the country's food reserves as part of a rapid logistics operation that will also involve setting up warehouses and mobile grain storage units." Lebanon imports nearly 85 percent of its food and most of it came through the Beirut Port prior to the explosion. WFP is bringing in equipment to render the port operational enough so that wheat and other bulk grains can be imported. Furthermore, the WFP produced 150,000 food parcels for households, which were distributed to two local communal kitchens that provide meals to victims and volunteers. In total, WFP will require $235 million to cover this emergency assistance, as well as logistics and supply chain support.
In other news concerning Lebanon, the Trial Chamber of the Special Tribunal for Lebanon (STL), based in The Hague, has pronounced its judgment in the Ayyash et al. case. The Chamber unanimously found the accused, Salim Jamil Ayyash, guilty (pdf) beyond reasonable doubt of all counts against him in the indictment. It further found the co-accused — Hassan Habib Merhi, Hussein Hassan Oneissi and Assad Hassan Sabra — not guilty (pdf) of all counts charged in the amended consolidated indictment. The STL trial concerned the 2005 assassination of former Lebanese Prime Minister Rafik Hariri. It occurred through an explosion in downtown Beirut, Lebanon, which killed more than 20 other persons and injured several hundred. The four accused tried over this attack were charged with conspiracy to commit a terrorist act, intentional homicide, attempted intentional homicide, and other related charges. They were tried in absentia.
UN Secretary-General António Guterres recently delivered a video message during a Peace Memorial Ceremony in Japan, paying tribute to the victims of the devastating atomic bombing of Hiroshima in 1945. As "unmatched advocates for nuclear disarmament," the survivors, known as "hibakusha," have turned their tragedy into "a rallying voice for the safety and well-being of all humanity." Mr. Guterres also observed that "[t]he birth of the United Nations in that same fateful year of 1945 is forever intertwined with the death rained down on Hiroshima and Nagasaki." Although the UN has recognized the need to totally eliminate nuclear weapons since its early days, that goal remains elusive.
The International Court of Justice (ICJ) will hold public hearings via video link from 31 August to 7 September 2020 on preliminary objections raised by the United Arab Emirates (UAE) in a case concerning the application of the Convention on the Elimination of All Forms of Racial Discrimination. The case, initiated by Qatar in June 2018, alleges that the UAE had implemented discriminatory measures directed at Qataris based on their national origin. These measures included expelling all Qataris within its borders and prohibiting them from entering or passing through the UAE; interfering with the rights of property-owning Qataris in the UAE; and blocking the transmission of Qatari media outlets in the UAE.
In the ICJ's case of The Gambia v Myanmar, which alleges genocide against Myanmar's Rohingya Muslim minority, Facebook has objected to a request that it turn over posts and communications by members of Myanmar's military and police. According to Reuters, Facebook claims that the request, made in June, for the release of "all documents and communications" by key military officials and police forces was "extraordinarily broad" and would constitute "special and unbounded access" to accounts. The social media giant has urged the US District Court for the District of Columbia to reject the demand, which it said would violate a US law that bars electronic communication services from disclosing users' communications. A Facebook spokesperson stated that Facebook "stands against hate and violence, including in Myanmar. ... We support action against international crimes and are working with the appropriate authorities as they investigate these issues."
In a rare move, the European Union (EU) has withdrawn funding from six Polish towns that have declared themselves "L.G.B.T.-free zones." According to The New York Times, the demonization of gay men and lesbians in Poland has been "ferocious," even by "the brutal standards of Polish politics." The leader of Poland's governing party claimed that he will not "stand under the rainbow flag," declaring that homosexuality represents a "threat to Polish identity, to our nation, to its existence and thus to the Polish state." In July 2019, marchers in Bialystok's gay pride parade were attacked with bricks, fireworks and stones. As the violent clashes escalated, with dozens wounded, the police had to deploy tear gas. In December 2019, the European Parliament condemned the discrimination against the L.G.B.T.Q. community and called on the government to take action to revoke the declarations by made local authorities. The Polish government did not respond. Helena Dalli, the European Union commissioner for equality, has defended the bold symbolism of the EU's financial sanctions by tweeting, "E.U. values and fundamental rights must be respected by Member States and state authorities."
Namibia has rejected Germany's offer of compensation for the 1904-1908 massacres in which tens of thousands of Indigenous Herero and Nama people were murdered during an uprising against German imperial troops. Historians call this the 20th century's first genocide. In 2015, the two countries began negotiating an agreement that would combine an official apology by Germany as well as development aid. Namibian President Hage Geingob claimed that recent reparations offered by Germany were "not acceptable" and that they would "continue with negotiations for a revised offer." The German government has so far refused to apologize for the killings nor has it accepted to use the term "reparations" for its offer. The terminology is subject to further debate, according to Geingob's statement.
Fifteen human rights and digital rights organizations have communicated with the new executive director of the Global Internet Forum to Counter Terrorism (GIFCT), warning that the moderation of online content by major technology companies is a violation of free expression and other fundamental rights. GIFCT is an industry-led and funded initiative whose members include Facebook, Microsoft, Twitter, YouTube, Pinterest, Dropbox, Amazon, LinkedIn, Mega.nz, Instagram, and WhatsApp. It was founded in 2017 to "[p]revent terrorists and violent extremists from exploiting digital platforms." Forum members use machine-learning algorithms as a means of blocking and limiting online dissemination of "terrorist and violent extremist" material. The algorithms have resulted in the removal of content opposing terrorism, in addition to satire, media reports, and other content that is considered legitimate free speech under international law. The organizations in opposition also noted that blocked or moderated content may include documentation of human rights abuses, which has been quickly disappearing from social media sites, especially in predominantly Arabic-speaking and Muslim countries. Removal of such content could obstruct victims' rights to obtain justice.
The UN Children's Fund, UNICEF, has appealed to European Governments to stop EU-bound refugees from being trapped on the Mediterranean Sea, particularly children. UNICEF stated, "Reception and identification facilities for refugee and migrant children must ensure safe and adequate shelter as well as rapid access to health care, psychosocial support and asylum procedures. More resettlement pledges that prioritize children and speed-up family reunification procedures from EU Member States are urgently needed." In recent days, the UN High Commission on Refugees (UNHCR) and the International Organization of Migration (IOM) have also called for the immediate disembarkation of more than 400 rescued migrants and refugees currently on board three vessels in the Central Mediterranean. Increased migration across the Mediterranean has led some European governments to criminalize or otherwise stigmatize the rescue of migrants. UNHRC and IOM declare, however, that "[t]he lack of agreement on a regional disembarkation mechanism … is not an excuse to deny vulnerable people a port of safety and the assistance they need, as required under international law."
Publications and Resources of Interest
Recent events and the resulting foregrounding of systemic racism in the United States have led to reflections on how race plays out both under international law and within its institutions.
A July 2020 webinar, entitled "Black Lives Matter: Reviewing US Racism Under CERD and CAT," explored the international human rights implications and possibilities of redress of conditions in the US under the UN Conventions against Torture (CAT) and against the elimination of all forms of racial discrimination (CERD). Co-hosted by the American Bar Association, International Bar Association, and American Society of International Law, the webinar lineup included Tendayi Achiume, United Nations special rapporteur on Racism, Racial Discrimination, Xenophobia and Related Intolerance.
Notwithstanding the possibility of invoking international conventions to combat racism, some observers feel that racial inequity is rife in the sphere of international justice itself. In a recent commentary from Just Security, "Negotiating Racial Injustice: How International Criminal Law Helps Entrench Structural Inequality," Kamari Maxine Clarke highlights "underlying structures of racial injustice and white supremacist logics upon which international criminal law has been constructed." An example is the focus of international criminal justice on crimes of mass death and widespread killing — to date, usually committed in Africa — and the sidelining of other serious crimes whose perpetrators would typically hail from white communities: "colonial domination and other forms of alien domination; apartheid; recruitment, use, financing and training of mercenaries; willful and severe damage to the environment; international terrorism; and illicit traffic in narcotic drugs." Furthermore, Clarke argues, the principle of non-retroactivity ensures that some of humanity's worst crimes will never be prosecuted.
Another kind of racial bias is demonstrated in the system of unpaid internships that open up future international careers, including those in criminal justice. Writing for Journalists for Justice, Thomas Verfuss notes that "[u]nder-representation of Africans at international courts has been a problem for decades. Today's interns may be judges in 20 or 30 years. But there are few African interns at the ICC because interns are not paid." A similar observation is made by Parisa Zanganeh in Opinio Juris: "Internship schemes in place defeat the purported goal of the United Nations and other international institutions: to recruit and retain a diverse and representative staff. In effect, the internship schemes in place are structured to favor people from wealthy countries and/or backgrounds, which undermines this objective and weakens institutions' claims to political and legal moral authority and legitimacy."
The recent creation of a French-language website is testament to a different type of bias in international criminal justice — that which places the English language above others in this sphere. The site, droitpenalinternational.com, serves as a clearinghouse for French language databases, practical guides and manuals, and jurisprudence, all of which will be useful for those who practice international criminal law in that language, especially in francophone countries on the African continent.
The Secretariat of the World Trade Organization (WTO) has issued a new report that warns of possible increases to trade costs due to COVID-19 disruptions. According to a press release, "[t]he note examines the pandemic's impact on key components of trade costs, particularly those relating to travel and transport, trade policy, uncertainty, and identifies areas where higher costs may persist even after the pandemic is contained." Read the full 10-page report (pdf).
A new book by New York University scholar Jennifer Trahan examines the legality of the use by a permanent member of the UN Security Council of its veto while there are ongoing acts of genocide, crimes against humanity, or war crimes. Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (Cambridge University Press 2020), features a history of the veto and its use, exploration of initiatives to restrain use of the veto, and case studies.