Programs in International Justice and Society

This month's Spotlight is contributed by Language, Culture and Justice Hub members Julie Fraser and Brianne McGonigle Leyh of Utrecht University.

We are pleased to present our new edited volume Intersections of Law and Culture at the International Criminal Court, published in October by Edward Elgar Press. This book takes as a premise that notions of culture affect the legal foundations, daily functioning, and perceived legitimacy of the International Criminal Court (ICC). Culture is sometimes explicitly raised at the Court, for example when prosecuting the destruction of cultural property as a war crime or when the accused seeks to raise a "cultural defence." However, we had identified myriad ways in which "culture" goes unobserved in the work of the ICC, ways which had, to date, escaped thorough academic attention. We have both worked at the Court and addressed international criminal law in our scholarship. In our book, we endeavored to expose and analyse the cultural complexities inherent in international criminal law.

Gladly, we were able to gather together a range of leading scholars and legal practitioners to contribute to the volume. The chapter authors all take a multidisciplinary approach to challenge the view that international law is not limited or bound by a particular culture, arguing instead that law and culture are intertwined. Analysing how culture influences views of the law, the facts to which it applies, and the fairness of the outcome, the contributors consider the implications of culture and law for the ICC and its international reach. McGonigle notes that "Each of the chapters touches on different issues that arise when scholars begin to unpack the crucial ways in which law and culture are so intimately intertwined, from questions about language to interviewing witnesses in court as well as broader issues of legitimacy." For example, the important empirical chapter contributed by Hub member and IJIN editor Leigh Swigart highlights the inherent but often overlooked role of “culture” as manifested in language at the ICC.

The first section of the book looks at culture in relation to the Court's core crimes, while the second section focuses on its role in the courtroom. Here authors analyse how specific cultural beliefs of the accused and witnesses are addressed in court, and the influence of culture in the judges' decision-making processes. The third section focuses on intersections of culture vis-à-vis defences, sentencing, and victim participation. The final section tackles the Court's (lack of) cultural legitimacy around the world, including across Asia, Africa, the Islamic world, and the USA. In the book we put forward recommendations to aid the Court's future considerations, ideally making it beneficial for legal practitioners and civil society organisations.

The introduction to the book is freely available.

The International Tribunal for the Law of the Sea has elected Judge Albert J. Hoffmann (South Africa) as President and Judge Tomas Heidar (Iceland) as Vice President for the 2020-2023 term. President Hoffmann has been a Tribunal member since 2005 and Vice President Heidar since 2014. According to an ITLOS press release (pdf), the election took place during the hybrid-formatted fiftieth administrative session. Fifteen judges were present in the courtroom and six attended remotely via video link. All voted using a secure electronic voting system.

The United States Immigration and Custom Enforcement (ICE) has been accused of forcing Cameroonian asylum seekers out of America with torture tactics. ICE officials have allegedly coerced the detainees to sign their own deportation orders, despite their fear of experiencing harm if returned to their home country. Many of these asylum seekers are from Cameroon's Anglophone minority, which has been targeted for abuse and extra-judicial execution by the Francophone government due to its separatist stance. According to The Guardian, the detained Cameroonians were threatened, choked, beaten, pepper-sprayed and threatened with more violence so as to force them to sign the documentation. ICE officers forcibly handcuffed and fingerprinted migrants who refused, using their prints in place of a signature on orders of removal that indicated they had waived their rights to further immigration hearings and accepted deportation. Human rights advocates note there had been a significant acceleration of deportations of Black immigrants in recent weeks, linking this to the upcoming US presidential election and the possibility that ICE could soon be under a new administration.

The recent premier of a documentary about the life and ministry of Pope Francis uncovered some controversial views about the LGBT community. In "Francesco," the Catholic News Agency reports, "Pope Francis called for the passage of civil union laws for same-sex couples, departing from the position of the Vatican's doctrinal office and the pope's predecessors on the issue." He furthermore emphasized that "[h]omosexuals have a right to be a part of the family. They're children of God and have a right to a family. Nobody should be thrown out, or be made miserable because of it." This progressive stance on same-sex unions has stirred some opposition from more conservative Church members who believe the Pope to be diluting church doctrine. "The pope's statement clearly contradicts what has been the longstanding teaching of the church about same-sex unions. … The church cannot support the acceptance of objectively immoral relationships," claims Bishop Thomas Tobin of Providence, Rhode Island. While there will be continued resistance to the Pope's acceptance of same-sex unions, it is undeniable that the Pope "sets the tone for the church and what he is doing is signaling to bishops and church leaders that a welcome for gay and lesbian couples has to go forward," stated Francis DeBernard, executive director of New Ways Ministry, an organization of LGBT Catholics.

Human Rights Watch (HRW) is advocating against the reelection of Rosario Manalo (The Philippines) to the United Nations Committee on the Elimination of Discrimination against Women (CEDAW). HRW claims she is unfit because of her work against the interests of women. The organizations cites, among other acts, her unwillingness to hold the Myanmar authorities accountable for documented mass sexual violence against its Rohingya minority, as well as her support of the Human Rights Declaration of the Association of Southeast Asian Nations, a document that undermines human rights, including those promoted by CEDAW. Although Manalo's past roles portray her to be an advocate for the protection of women, notes HRW, her recent actions suggest otherwise. The HRW website states, "The CEDAW committee should be comprised of human rights advocates who fight for women's rights without fail, and promote transparency and accountability. Manalo is not that person. She should have no place on the CEDAW Committee. Instead, CEDAW member countries should cast their votes for candidates with strong and unimpeachable records who will bolster the committee's ability and credibility to support and defend women's rights around the world."

The United Nation's Food and Agriculture Organization (FAO) recently touted the success of a program created for the benefit of Somali farmers. The integrated cash and livelihood assistance program, known as "Cash+," is a response to increasingly unpredictable weather patterns, such as the 2019 drought that resulted in poor harvests in Somalia. Funded by the European Union, Cash+ is designed to provide immediate relief to farmers who cannot buy the food or the agricultural inputs they need. It is run through mobile money transfers and electronic vouchers that allow farming families to purchase the goods and services they need most in community markets, thereby supporting local economies. Since March 2020, the FAO has provided e-vouchers for quality seeds, farm tools, irrigation services and other cropping essentials to approximately 40,000 farming households in Somalia. Aside from providing immediate economic assistance, the program also aims to improve the resilience of farming households through training in climate-smart farming practices.

Can rivers hold rights just as human persons do? A new report (pdf) by the Cyrus R. Vance Center for International Justice notes that there is a movement to grant basic legal rights to rivers across the globe, from Colombia to New Zealand. The Vance report outlines a number of cases focused on such "rights of nature": "In some of the surveyed cases, Rights of Nature are grounded in Indigenous jurisprudence and treaty rights. In others, they are enacted as constitutional rights, encoded within national laws, or passed as executive actions. The cases also encompass local ordinances, often developed in situations where communities are fighting against federal inaction — as in the examples of the United States and Brazil." The Green Times writes that momentum for the rights of rivers is growing as global threats to rivers and freshwater ecosystems increase. It warns the reader, "One million animal and plant species are at risk of extinction. A majority of the world's longest rivers have been dammed, fragmented, and/or polluted with alarming consequences for human rights, local economies, and the environment. And the world is reaching a 'critical point of no return' on climate change."

Due to the unprecedented impacts of the COVID-19 pandemic, the UN's Sustainable Development Goals (SDGs) have been derailed from their original timeline. The United Nations Industrial Development Organization and the United Nations Sustainable Development Solutions Network recently organized a virtual panel to discuss the impacts of COVID-19 on the 2030 Agenda and SDGs, particularly SDG9 — industry, innovation and infrastructure. All panellists agreed that global collaboration is imperative to take the world through the recovery from COVID-19. Once out of recovery, panelists stressed how the focus should be on embracing the new, digital world to further three key initiatives: to bring access to education for all, to build sustainable industrialization, and to reach net-zero emissions.

The Ivory Coast has ignored the guidance of the African Court on Human and Peoples' Rights (AFCtHPR) in the matter of its late October presidential election. The controversy surrounds former President Laurent Gbagbo's inability to stand as a candidate or even vote in the election. Since being acquitted in January 2019 of crimes against humanity in the wake of Ivory Coast's contested 2010 presidential election by the International Criminal Court, Gbagbo has been freed conditionally and is living in Brussels pending an appeal of the ruling. Gbagbo's candidacy in the presidential election and his right to vote were rejected by the Ivory Coast's Constitutional Council due to a 20-year prison term imposed on him last November in absentia for looting the Central Bank of West African States in 2010. Gbagbo is not the only person who is barred from involvement in the presidential election — the candidacy of former rebel leader Guillaume Soro, currently living in France, has been rejected as well. He was also convicted in absentia of embezzlement of public funds. Current president Alassane Ouattara justifies the rejection of both their candidacies due to their "criminal record." Meanwhile, Ouattara is standing for his third term as president, thereby sidestepping the Ivorian constitution, with the blessing of the country's top court, which limits a presidency to two terms. The Ivory Coast withdrew its recognition of the ACtHPR's jurisdiction earlier in 2020, saying that the Court undermined the country's sovereignty.

Switzerland and the Association of Southeast Asian Nations (ASEAN) recently held their 5th Meeting of the ASEAN-Switzerland Joint Sectoral Cooperation Committee by videoconference. They discussed various projects of their ASEAN-Switzerland Sectoral Dialogue Partnership of 2017-2021, including those related to connectivity: smart cities; digital innovation; disaster management and humanitarian assistance; and biodiversity, conservation and management. The parties also deliberated on support for the ASEAN COVID-19 Response Fund, with both parties stressing "the importance of cooperation on health and vaccine resilience, joint research, provision of medical supply and equipment, as well as programmes on exchanges of experience, lessons learnt and expertise on dealing with the pandemic."

Human rights advocates assert that an Argentinian public database containing details, often erroneous, pertinent to children with open arrest warrants violates their right to privacy. According to a recent report by Human Rights Watch, the National Register of Fugitives and Arrests (Consulta Nacional de Rebeldías y Capturas, or CONARC), created in 2009, contains suspects' names, ages, national ID numbers, and alleged offenses. This includes a number of children, most of them 16 and 17 years of age, but some much younger. HRW reports, "The Buenos Aires city government has then been loading the images and identities of these children into a facial recognition system used at the city's train stations, despite significant errors in the national government's database and the technology's higher risk of false matches for children." Already in May 2019, the United Nations special rapporteur on the right to privacy found that CONARC was violating children's rights to privacy. The online database contained personally identifiable information of 61 children at the time. After actively reviewing the database, Human Rights Watch discovered that at least 25 more children have been added since the special rapporteur's 2019 warning. José Miguel Vivanco, Americas director at Human Rights Watch, stated: "Authorities from the national and Buenos Aires city governments should coordinate efforts to shield children from harm caused by unreliable surveillance technologies and practices that violate their right to privacy." Read more about challenges to the ethical use of biometric surveillance from BiometricUpdate.

The International Maritime Organization (IMO) has announced the extension of a 3-year old project promoting technologies and operations that improve energy efficiency in the maritime sector. The Global Maritime Technology Cooperation Centres (MTCC) Network Project, funded by the European Union, aims in particular to reduce the emission of greenhouse gases from shipping in developing countries. The IOM reports that "MTCCS in Africa, Asia, the Caribbean and the Pacific have established strong regional networks and are becoming important regional players, with technical expertise in the field of maritime energy efficiency and greenhouse gas emissions knowledge." The centres have held numerous capacity building activities and completed a number of port energy audits. The MTCC Project has been extended for six months so that MTCCS can continue these and other important efforts.

A group of prominent American international legal scholars is suing the US government for what it claims are unwarranted sanctions imposed on persons associated with the International Criminal Court (ICC). The sanctions, announced in June 2020 via Executive Order 13,928, were a response to the Court opening an investigation into possible war crimes committed in Afghanistan by all parties. It calls for blocking the property of persons who are "determined to have engaged in or assisted efforts by the [Court] to investigate or prosecute international crimes allegedly committed by Americans or personnel of certain United States allies, or to have assisted, supported, or provided services to or in support of designated persons." The Open Society Justice Initiative — along with Diane Marie Amman, Milena Sterio, Margaret deGuzman, and Gabor Rona — filed their suit on the 1st of October in the US District Court for the Southern District of New York. The plaintiffs challenge the lawfulness of Executive Order 13,928, noting that they have engaged with the ICC in the past, including in its investigations and prosecutions, and had intended to engage with it in the future. The Guardian reports, "the lawyers say they have had to cancel speeches and presentations, end research, abandon writing ICC-related articles and dispensing advice and assistance to victims of atrocities. The effect, according to the plaintiffs, has been an unprecedented infringement of their constitutional right to free speech and a chill that has pervaded the world of international humanitarian law." While the US District Court considers the constitutionality of the order, the plaintiffs ask that its enforcement be suspended.

The European Court of Human Rights has received a request from Azerbaijan for interim measures against Armenia in the ongoing conflict in Nagorno-Karabakh. Azerbaijan asks for the following:

• To stop shell and missile attacks, from its territory and the occupied territories of the Republic of Azerbaijan, on residential areas, public premises, cemeteries and other civil infrastructure in the territory of Azerbaijan.

• To stop military, political, financial and other support to criminal "authorities" on the occupied territories of the Republic of Azerbaijan.

• To stop sending its armed forces, military equipment and so-called "volunteers" — in fact mercenaries — to the sovereign territory of the Republic of Azerbaijan, and refrain from inviting its and foreign nationals on the territory of Azerbaijan.

• To withdraw its armed forces and militants illegally stationed on the territory of the Republic of Azerbaijan.

• To refrain from pursuing the policy of hatred towards the Republic of Azerbaijan and its nationals.

The Court notes that on 29 September 2020, in the case of Armenia v. Azerbaijan (no. 42521/20), it called upon both Azerbaijan and Armenia to refrain from taking any measures, in particular military actions, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk. It also called upon both parties to comply with their engagements under the Convention, notably in respect of Article 2 (right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment or punishment) of the Convention.

A new book delves into the topics of translation and cross-cultural communication in times of war and conflict. Edited by Amanda Laugesen and Richard Gehrmann, Communication, Interpreting and Language in Wartime: Historical and Contemporary Perspectives (2020) was published as part of the Palgrave Studies in Language at War series. The publisher's website notes, "[this volume] examines the historical and contemporary experiences of interpreters in war and in war crimes trials, as well as consider[s] policy issues in communication difficulties in war-related contexts. The range of perspectives incorporated in this volume will appeal to scholars, practitioners and policy-makers, particularly in the fields of translating and interpreting, conflict and war studies, and military history."

Another recent publication, "Trial and Error in the Interpreting System and Procedures at the Tokyo Trial," offers insights into how communication challenges were addressed at that historic tribunal. Author Kayoko Takeda writes, "That these interpreters and translators played an indispensable role in enabling this multilingual discourse does not usually constitute a major topic in discussions of the Tokyo Trial by historians and legal scholars. However, an inquiry into the trial-and-error nature of the interpreting system and procedures not only reveals the impact of language issues on the proceedings but also adds to the discussion on the ad hoc aspects and power dynamics of the tribunal." Takeda's contribution is a chapter (pages 131-152) in The Tokyo Tribunal: Perspectives on Law, Memory and History, recently published by Torkel Opsahl Academic EPublisher. It is available free of charge as part of the open access Nuremberg Academy Series.

To what extent is environmental damage allowable in the course of war? The International Committee of the Red Cross (ICRC) addresses this question in its recently published Guidelines on Protection of Environment in Armed Conflict. The ICRC explains the importance of the new guidelines like this: "The natural environment has frequently remained a silent casualty of war. The consequences of environmental damage for conflict-affected populations are severe and complex, affecting their well-being, health and survival. When environmental degradation collides with climate risks, it compounds the challenges for people trying to survive in contemporary armed conflicts. While a certain amount of environmental damage may be inherent to war, it cannot be unlimited; international humanitarian law (IHL) contains rules that protect the natural environment and that seek to limit the damage caused to it by armed conflict." The Guidelines may be downloaded at the ICRC website.

A recent issue of the Elgar Journal of Human Rights and the Environment (Vol. 11, Issue 2) examines a different aspect of law and the natural world — animal rights. In the introductory article, "Animal rights: Interconnections with Human Rights and the Environment," authors Tom Sparks, Visa Kurki and Saskia Stucki write: "Legal animal rights are on the horizon. Not too long ago, the notion of animals as holders of legal rights still seemed utopian to most. However, the idea of animal rights is not novel; it finds its early roots in the works of philosophers and social reformers such as Jeremy Bentham and Karl Christian Friedrich Krause. ... There is now a lively scholarly debate dedicated to establishing, elaborating, and advancing the theoretical foundations and practicability of legal animal rights. Moreover, animal rights are gradually beginning to emerge and solidify in case law." Other articles in this issue examine notions such as animal interests, legal personhood, and veganism.