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
The Language, Culture and Justice Hub invites you to participate in an asynchronous and written online "learning exchange" exploring diverse language challenges facing migrants as they navigate legal and other critical contexts, work in academic / professional settings, and respond to rhetoric that (mis)(re)presents them. Participation is simple: over the course of 17 and 18 November (starting 16 November in North America), attendees will log on at their convenience to the learning exchange platform to review comments and contribute their own thoughts to the developing group conversation. A minimum of two hours of participation is expected, and there are no registration fees.
Titled Rights, Rules and Rhetoric: Exploring Language for and about Migrants in Australia, Europe and North America, this virtual exchange seeks to examine and compare diverse language-related facets of the migration experience across Australia, Europe and North America. These facets can be grouped along three axes:
- The rights enacted through laws or directives ensuring procedural fairness for migrants, including their ability to access critical information in their languages through translated documents or interpretation.
- The everyday rules, written and unwritten, of language provision and practice in situations involving migrants, which may fall short of formally guaranteed rights and reflect various "language ideologies," that is, common if sometimes misguided understandings of how language works.
- The problematic or demonizing rhetoric about migrants and their communities of origin, and the obstacles such rhetoric may create for people on the move.
The exchange will also examine the impact of the current pandemic both on the availability and adequacy of language services, and on public narratives about migrants from regions that have been described, often inaccurately, as sources of the coronavirus.
Rights, Rules and Rhetoric seeks participation by a broad range of actors: migrants, international students, asylum seekers/refugees, scholars, researchers, activists, and practitioners and policymakers from diverse fields. The working language of the exchange will be English, but contributions can also be offered and read in Spanish, French, and Arabic with the help of computer-generated translation.
People in the News
Pedro José Vaca Villarreal has been selected as Special Rapporteur for Freedom of Expression for the Inter-American Commission on Human Rights (IACHR). The Commission made its decision based on the professional qualities and experience of the candidate, taking into special consideration his technical capacity, leadership, and ability to work effectively with States, civil society organizations, and other actors of the Inter-American Human Rights System. Vaca is a lawyer from the National University of Colombia with a specialization in Constitutional Law and a Masters' degree in Law. He has more than 12 years of relevant professional experience working in human rights and freedom of expression, including litigation of serious violations of freedom of the press. Vaca will be appointed for a period of three years, renewable once, and will assume office on 6 October 2020. Read more in this IACHR press release.
Kaing Guek Eav, the former schoolteacher known as "Duch" who ran a notorious security prison under Cambodia's Khmer Rouge regime, recently died at age 77. Duch was the commandant of Tuol Sleng, a former Phnom Penh high school that served as the central security prison of Democratic Kampuchea, where he presided over the death of at least 14,000 Cambodians, most of whom confessed to often imaginary crimes under torture. It is believed that 1.7 million Cambodians died between 1975 and 1979 in "the Khmer Rouge's uncompromising attempt to forge a pure agrarian utopia" — from execution, torture, starvation, untreated disease or overwork. In 2010, the Extraordinary Chambers in the Courts of Cambodia — a joint United Nations / Cambodian tribunal — found Duch guilty of crimes against humanity and war crimes. He was given a 35-year prison sentence, which was increased to a life sentence when the conviction was uphold upon appeal in 2012.
In June 2020, US President Donald Trump issued an executive order calling for sanctions to be imposed against officials of the International Criminal Court (ICC) involved in investigating US citizens, a move triggered by the Court's decision to open an inquiry into war crimes committed by all sides in Afghanistan. The order claims that the Court threatens US officials without legitimate jurisdiction, infringes on US sovereignty and puts at risk critical national security and foreign policy. In a follow-up action in September 2020, two ICC officials — Chief Prosecutor Fatou Bensouda and Director of the Jurisdiction, Complementary and Cooperation Division Phakiso Mochochoko — have been specially designated for such sanctions. Their assets have been blocked by the US government, an action normally imposed on the likes of terrorists and narcotics traffickers, and US citizens have been prohibited from having any dealings with the officials. Prosecutor Bensouda had already had her US visa revoked by the State Department in a 2019 retaliation against her attempts to open an investigation into possible war crimes committed in Afghanistan.
An IntLawGrrls blogpost by Prof. Jennifer Trahan characterizes the Trump administration actions as "bully tactics" that attempt to ensure impunity for any wrongdoing by US citizens. A commentary by the European Council on Foreign Relations analyzes the "face-off" between the US and the ICC like this: "… the Trump administration, in keeping with its hyper-aggressive approach to multilateral organisations, has seized the opportunity to strike a potentially sweeping blow against the court. The US action should also be understood as a response to the court's current examination of Israeli actions in Palestine, an examination that the Trump administration has strongly opposed. A crucial question now is how aggressively the US will try to enforce its sanctions."
In other ICC news, the Office of the Prosecutor's investigations into crimes allegedly committed by the Myanmar military against Rohingya Muslims recently received a boost. Video testimony from two soldiers supports widespread accusations that Myanmar's military tried to eradicate the ethnic minority in a genocidal campaign. The New York Times reports that the testimony, recorded by a rebel militia, is the first in which members of the Tatmadaw, as Myanmar's military is known, have openly confessed to taking part in what United Nations officials characterize as a genocidal campaign against the country's Rohingya Muslim minority. The article goes on to note that the soldiers' accounts will also add weight to the separate case at the International Court of Justice, where Myanmar is accused by The Gambia of trying to "destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages." Canada and The Netherlands recently applied to the ICJ to become "intervening parties" in this case in order to support The Gambia "with the complex legal issues that are expected to arise, [paying] special attention to crimes related to sexual and gender based violence, including rape."
Following the three-year #WhereIsMyName campaign waged by women's rights activists, Afghan President Ashraf Ghani has signed an amendment allowing mothers' names to be included on their children's identification cards. According to an Australian Broadcast Association article, the campaigners have fought against an ingrained Afghan belief that using a woman's name in public brings shame on the family. This means that women's names are excluded from official documents, their wedding invitations, and even their own grave markers. One of the supporters of this campaign noted the significance of the amendment: "By printing her name, we give the mother power, and the law gives her certain authorities to be a mother who can, without the presence of a man, get documents for her children, enroll her children in school, travel."
The arrest in late August of Paul Rusesabagina has raised speculation about his activities while living abroad and the measures that the Rwandan government took to trap him. The story of Rusesabagina was made famous in the 2004 Oscar-nominated film "Hotel Rwanda" — he sheltered 1200 Rwandans during the 1994 genocide in the hotel he managed and protected them from the ongoing massacre of ethnic Tutsis. He left Rwanda soon thereafter, reports The New York Times, acquiring Belgian citizenship and later becoming a resident of the United States where he openly criticized the increasingly repressive regime of Rwandan President Paul Kagame. Rusesabagina appears to have been transported to Rwanda under false pretenses, which Human Rights Watch claims is a violation of international law. The Rwanda Investigation Bureau declared that Rusesabagina is suspected of being "the founder, leader, sponsor and member of violent, armed, extremist terror outfits." Rusesabagina insists that his group is not a terrorist organization, even if its components include an armed group. Rusesabagina's supporters, both in Hollywood and in the Rwandan opposition, assert that he cannot receive a fair trial in his home country.
Developments in International Justice
Salih Mustafa, former commander of the Kosovo Liberation Army, has been arrested by the Kosovo Specialist Chambers (KSC), based in The Hague. Mustafa is the first suspect to be arrested by this entity, which has jurisdiction over crimes against humanity, war crimes and other crimes under Kosovo law in relation to allegations reported in the Council of Europe Parliamentary Assembly Report of 7 January 2011. Mustafa was detained pursuant to an arrest warrant, a transfer order, and a confirmed indictment issued by a Pre-Trial Judge of the KSC in June 2020. He is charged with individual criminal responsibility for arbitrary detention, cruel treatment, torture and murder, and war crimes under international law.
The Australian government has failed to meet important commitments to protect the rights of refugees, asylum seekers, and Indigenous peoples over the past five years. So states a submission by Human Rights Watch to the UN Human Rights Council in advance of Australia's January 2021 Universal Periodic Review (UPR). The UPR is a mechanism whereby the Geneva-based Human Rights Council reviews the human rights record of each UN member state every five years. During the previous cycle in 2015, Australia accepted numerous recommendations, agreeing to take steps to protect the rights of asylum seekers and refugees, reduce incarceration rates of Aboriginal and Torres Strait Islander peoples, and ensure that national security and counterterrorism legislation is subject to strict safeguards so as to prevent a chilling effect on free expression and overreach. Human Rights Watch asserts, however, that the Australian government has failed to show progress on these key issues.
Farouq Omar, a 13-year-old Nigerian boy sentenced to 10 years imprisonment for blasphemy, has appealed the judgment that convicted him at the Kano State High Court. A court document, seen by SaharaReporters, reveals that the teenager's counsel pleaded the judgment be set aside because the law used to convict him was unconstitutional and conflicts with the Nigerian constitution, the African Charter on Human and Peoples Rights, and the Universal Declaration of Human Rights. He added that Sharia law is only applicable and permissible in Islamic theocracies or countries whose constitution allows for such laws and not in Nigeria, which is a secular state with a constitutional democracy. "The sentencing of this child … to 10 years in prison with menial labour is wrong," said a UNICEF representative in Nigeria. "It also negates all core underlying principles of child rights and child justice that Nigeria — and by implication, Kano State — has signed on to. This case further underlines the urgent need to accelerate the enactment of the Kano State Child Protection Bill so as to ensure that all children under 18, including Omar Farouq, are protected."
Amnesty International has criticized the Canadian government for failing to prosecute individuals under its federal law of universal jurisdiction for genocide, crimes against humanity and war crimes. The example of Liberian national Bill Horace is a case in point. He lived freely in Canada starting in 2002 despite extensive evidence that he had committed mass murder, rape and torture in Liberia in the 1990s. Horace was recently murdered in London, Ontario. In a recent report, "No Safe Haven," Amnesty asserts that Canada's Crimes Against Humanity and War Crimes Act (CAHWCA) is grossly underfunded and underused. In principle, the Act means that such crimes are criminalized in Canada even when committed abroad. But over the two decades since it was enacted, only two individuals have been prosecuted under the CAHWCA, both linked to the 1994 Rwandan genocide.
A transitional justice plan for the Republic of Maldives appears to be at risk. In October 2019, a government-endorsed transitional justice bill, designed to redress systematic rights violations and torture in the Maldives, was tabled in the parliament. Observers feel that the bill does not meet international standards and may deprive hundreds of Maldivians of their right to reparations for severe human rights abuses involving state security forces. The UN Human Rights Committee called on the Maldivian government in July 2012 to investigate and resolve severe human rights violations meted out both in prisons during the regime of President Maumoon Abdul Gayoom (1978-2008) and during the disputed transfer of power in February 2012, when his successor was forced to resign following protests led by the then opposition and religious hardliners.
In recent months and years, a number of countries have donated funds to the World Trade Organization (WTO) to assist developing countries and least-developed countries to participate more fully in international trade and enhance their trading capacities. The donations — from Austria, Canada, Estonia, the European Union, Korea, and Japan, among others — will be used to finance training workshops and seminars for government officials, with the aim of deepening their understanding of current trade issues and challenges, and of improving their negotiating skill set. Canada, Germany and the US have also provided funding to the WTO designated specifically to help developing countries and least-developed countries comply with international food safety, animal and plant health standards, with the aim of increasing their access to agricultural markets.
Publications and Resources of Interest
A recent series in The New York Times, written by Abrahm Lustgarten and illustrated with the photographs of Meridith Kohut, examines "the great climate migration" — the massive movement of people across the globe triggered by drought, floods, rising sea levels, wildfires, hurricanes and more. A July 2020 interactive piece (login may be required) explores this phenomenon in a number of regions, finding a predictable trend. "Around the world, as people run short of food and abandon farms, they gravitate toward cities, which quickly grow overcrowded. It's in these cities, where waves of new people stretch infrastructure, resources and services to their limits, that migration researchers warn that the most severe strains on society will unfold." A September 2020 interactive article (login may be required) focuses on what climate migration looks like in the United States. According to one projection, at least 13 million people in the US will be forced to move by the year 2100 due to climate change. Lustgarten writes, "The Great Migration — of 6 million Black Americans out of the South from 1916 to 1970 — transformed almost everything we know about America, from the fate of its labor movement to the shape of its cities to the sound of its music. What would it look like when twice that many people moved? What might change?" He emphasizes that in order to mitigate the most destabilizing aspects of mass migration, we have to engage in a sharper imagining of where and when people are likely to move.
To mark the 70th anniversary of the European Convention on Human Rights, the European Court of Human Rights (ECtHR) has published four new case-law factsheets on the following themes: independence of the justice system; restrictions on the right to liberty and security for reasons other than those prescribed by the European Convention on Human Rights; right to respect for family life of prisoners in remote penal facilities; and use of force in the policing of demonstrations. The ECtHR now has available on its website about 60 factsheets providing a rapid overview of the most relevant cases concerning a particular topic, regularly updated to reflect developments in its case-law. Many are available in multiple languages. View and download the full factsheet series.
In a new article, legal scholars Leila N. Sadat and Madaline George (Washington University School of Law) analyze the reaction of States to work done by the International Law Commission (ILC) on developing a convention on crimes against humanity. Between 2013, when this project began, and 2019, 86 States — along with several entities and subregional groups — made comments on the ILC's work, either during meetings of the United Nations Sixth Committee or through written comments to the ILC. This article analyses "the development of States' reactions to the IL's work over time, as well as specific issues that frequently arose, observing that there is a pattern of growing support from States to use the ILC's Draft Articles on Prevention and Punishment of Crimes Against Humanity as the basis for a new convention." Prof. Sadat has a long commitment to this topic, having edited a 2011 volume (reprinted in 2014) titled Forging a Convention for Crimes Against Humanity (Cambridge University Press).
The Group of Independent Experts charged with reviewing the International Criminal Court and the Rome Statute system, as requested by the Assembly of States Parties in December 2019, has now made public its lengthy Final Report (pdf). Only the Introduction (pdf) and Summary of Recommendations Advised to be Prioritized (pdf) are currently available in French. A full translation of the Report is now underway. State representatives, Court officials, civil society representatives and all relevant stakeholders may submit questions about the Report to the Experts by Monday, 5 October 2020, no later than 17:00 (Central European Time) to the following address: IER-Assistants@icc-cpi.int. A meeting to clarify issues in the Report will take place on 7 October 2020.