Programs in International Justice and Society

Freya Baetens

This month's Spotlight feature was contributed by Professor Freya Baetens (University of Oslo, Leiden University), editor of the newly published volume, Identity and Diversity on the International Bench: Who Is the Judge? (Oxford University Press).

International courts and tribunals hold the power to decide on questions involving sovereignty over territory, grave human rights violations, international crimes, or millions of euros' worth of economic interests. Judges and arbitrators are the "faces" and arguably the drivers of international adjudication — yet certain groups tend to be overrepresented on international benches, while others remain underrepresented. Although international courts and tribunals differ in their institutional make-up and functions, they all rely in essence on the judgment of a group of individuals, each with their own background and experience. Even if adjudicators' identity is not the only, and may not be the decisive, influence on their decision-making, the relative lack of diversity among them has an effect on the judicial process and its outcomes, which in turn entails broader implications for the legitimacy of international law. Against this backdrop, the book aims to analyse the implications of identity and diversity across numerous international adjudicatory bodies, focusing on a wide range of factors. Lack of diversity within the judiciary has been identified as a legitimacy concern in domestic settings, and the last few years have seen increasing attention to this question at the international level as well, making the book both timely and topical.

This book examines, first, the (s)election of adjudicators, examining the paths taken by (potential) judges and arbitrators leading to nomination or (s)election, as well as the considerations of those — States, parties, appointing authorities — who have the power to decide whether to nominate or (s)elect a particular person. Second, the book analyses the experiences and impact of judges and arbitrators from underrepresented groups during their time spent on courts and tribunals, examining whether being a judge from such a group affects adjudicatory "style" or the behaviour of others on the bench, as well as counsel before it. Finally, this book scrutinises the legacy of adjudicators following their time on the bench, how their work on the bench is regarded by the parties and other actors outside the court or tribunal, and how this may influence developments at the domestic level.

Overall, this book focuses on a wide variety of identity features, including gender, nationality, ethnicity, religion, legal culture, education and professional background. Language as a mark of identity is also referenced in various chapters. Contributors include scholars in a variety of disciplines (law, political science, philosophy and linguistics) as well as practitioners: international judges, arbitrators and (former) State officials tasked with nominating and appointing adjudicators.

Read the book's introduction (pdf)

The United States is still reeling from the recent insurrection carried out by far-right extremists who stormed the Capitol building while lawmakers were gathered to tally the 2020 presidential election results. Among the myriad commentators who have written about the January 6th events are two who are eminently qualified to place the incident in international perspective.

Human rights lawyer Brian Concannon, founding director of the Institute for Justice and Democracy in Haiti, reminds us in a Responsible Statecraft article that the US has repeatedly intervened and helped to overrule the electoral choices made in other countries when the winner is not to Washington's liking. Concannon writes, "Last week's attack on the Capitol gave us a disconcerting glimpse of what is at stake with democracy's overthrow. People all over the world …  hope that that glimpse can help us reconsider our practice of destabilizing our global neighbors."

Legal scholar and anthropologist Richard Ashby Wilson, who has closely studied legal responses to speech inciting violence, contributed an insightful op-ed (subscription required) to the Los Angeles Times. Wilson lays out the elements of incitement law, argues that then President Trump's actions before the Capitol attack satisfy all of them, and suggests that prosecutors should be able to make a solid argument that the former president incited insurrection. "I have studied war crimes tribunals for three decades and we must acknowledge the end of American exceptionalism and learn from the history of societies that lurch from civil unrest into full-blown civil war," writes Wilson. "A failure to respond to incitement of insurrection will only embolden those who wish to destroy our democratic system."

Among the numerous irregularities marking the final weeks of Trump's administration, the former president's pardon of four private security contractors of Blackwater Worldwide is notable. In 2015, the four men were found guilty by US courts of multiple criminal acts committed during a 2007 shooting rampage at Nisour Square in Baghdad, which left 14 unarmed civilians dead and at least 17 wounded. A United Nations expert called the pardon "an affront to justice," adding that the pardons violate US obligations under international law and more generally undermine global humanitarian law and human rights. Military Times reports that at least one of the pardoned criminals defiantly insists that he acted correctly. "Historically, presidential pardons have been reserved for nonviolent crimes, not manslaughter or murder, and the traditional process led by the Justice Department values acceptance of responsibility and remorse from those convicted of crimes. The Blackwater contractors meet none of that (sic) criteria."

The International Criminal Court (ICC) has six new judges. According to an ICC press release, the following individuals were elected for a nine-year term during the 19th session of the Assembly of States Parties: Ms. Althea Violet Alexis-Windsor (Trinidad and Tobago), Ms. María del Socorro Flores Liera (Mexico), Ms. Joanna Korner (United Kingdom), Mr. Gocha Lordkipanidze (Georgia), Ms. Miatta Maria Samba (Sierra Leone), and Mr. Sergio Gerardo Ugalde Godinez (Costa Rica). They will be sworn into their new positions in March 2021 and thereafter join the other 12 members of the bench. The terms of ICC judges are staggered so that only one third of the bench is replaced every three years. The judicial nomination and election process of the Court has received criticism from many quarters, a common observation being that it is not necessarily the most qualified individuals who are successful but rather those who have the most effective and well-resourced campaigns. Read about the most recent elections from International Justice Monitor, which argues that while progress has been made in the election process, there is still much room for improvement.

Will the Chagos islanders forcibly removed to the Seychelles from Diego Garcia, the large island used by the US since the 1970s as a military base, receive compensation for the hardships they have experienced? The Guardian reports that they are hoping that President Biden will finally bring them justice. In 1970, 1,500 people were relocated by the US and British militaries after the UK leased Diego Garcia to the US to build a military base. In 2019, the International Court of Justice (ICJ) stated in an advisory ruling that the continued British occupation of the Chagos Islands was illegal and that they must be rapidly "decolonized." The ruling also delegitimized the presence of the US there. The only judge dissenting from the main ICJ opinion was an American. The exiles in the Seychelles seek acknowledgment of their removal by filing a petition through the US Foreign Claims Act, which awards compensation for noncombatants' injury, death or property damage by US military personnel overseas.

Saudi Arabian women's rights activist Loujain al-Hathloul was recently sentenced to six years in prison by a Saudi judge, a sentence she vows to appeal. Well-known for her social media efforts to end male guardianship and secure the right for Saudi women to drive, she had already spent more than 900 days in detention, where she is alleged to have suffered torture, sexual harassment and other forms of ill-treatment. According to a state-linked news source, she was convicted in late 2020 of agitating for change in Saudi Arabia while serving a foreign agenda, using the internet to harm public order and cooperating with individuals and institutions that were involved in crimes under anti-terror laws. Amnesty International claims that the charges leveled against Loujain Al-Hathloul were entirely related to her human rights work and has called for her immediate and unconditional release, as well as that of other Saudi human rights defenders currently in detention.

In recent weeks, South Korea and Japan have had some fraught exchanges about the issue of "comfort women," those who were sexually enslaved by the Japanese military before and during the Second World War. According to The Guardian, "as many as 200,000 women — mostly Koreans, but also Chinese, Southeast Asians and a small number of Japanese and Europeans — were coerced or tricked into working in military brothels between 1932 and Japan's defeat in 1945." A Seoul court ruled in early January that Japan should compensate 12 women who were subjected to this experience, to which Japan responded, as reported in The Japan Times, that the two countries resolved to end this issue "finally and irreversibly" in 2015, and that Japan furthermore enjoys "sovereign immunity" in the matter. The South Korean court considered, however, that this principle does not apply to a crime against humanity committed in the Korean Peninsula under Japanese rule. The two governments have since toned down their rhetoric, with South Korea vowing to seek an "amicable solution" to the situation.

Read more from Kyodo News

The African Court of Human and Peoples' Rights has found that vagrancy laws in some African countries are incompatible with human rights as guaranteed by three separate regional human rights charters, including those relevant to the rights of children and women. Vagrancy laws are defined as those which criminalize the status of individuals as being poor, homeless or unemployed as opposed to specific reprehensible acts. A commentary in Jurist explains the ruling. "The court held that the laws violate the charters' provisions on nondiscrimination as most of the people arrested are of low income status. Arrests and forced relocations are also inconsistent with the right to dignity and freedom of movement under the charter. Forced relocations also interfere with the right to the sanctity of the family. The arrests are also inconsistent with the right to presumption of innocence. Vagrancy laws were also held to violate children's rights under the children's rights charter."

In a ruling believed to be the first of its kind in France, the appeals court of Bordeaux has overturned the deportation of a Bangladeshi with asthma because of the danger he would face in his home country due to its poor air quality. According to The Guardian, the man's lawyer argued that his client "risked a severe deterioration in his condition, and possibly premature death, due to the dangerous levels of pollution in his homeland." Barely a week after this ruling, a report in The Lancet Planetary Health Journal estimated that the premature death burden due to two particular air pollutants in nearly 1,000 cities across Europe is over 50,000 per year. The World Health Organization, which provides guidelines on acceptable levels of pollutants, estimates that air pollution kills more than 7 million people each year and is one of the leading causes of sickness and absence from work globally.

United Nations human rights experts are calling on the government of Sri Lanka to discontinue the compulsory cremation of persons who have died of COVID-19, saying that it discriminates against Muslims and other minority populations. The regulation was established in the belief that burying infected bodies could lead to increased spread of the disease. Medical experts in Sri Lanka have challenged this belief, noting that it is not supported by scientific evidence. UN experts stated, "While we must be alert to the serious public health challenges posed by the pandemic, COVID-19 measures must respect and protect the dignity of the dead, their cultural and religious traditions or beliefs, and their families throughout." They also fear that the cremation policy may deter some citizens from accessing public health care.

The European Court of Justice (ECJ) recently ruled that a Belgian regulation requiring that animals be stunned before slaughter does not infringe on the freedom of religion as guaranteed by the European Union's Charter of Fundamental Rights. The regulation was challenged by observant Jewish and Muslim groups claiming that this method of slaughter contravenes their religious practices. The ECJ acknowledged that while the Belgian regulation does limit certain aspects of religious slaughter, "[t]his limitation is permissible … because it is restricted to only one aspect of the specific ritual act of slaughter, and it promotes animal welfare, which is an objective of general interest recognized by the European Union." The ECJ also noted that the Belgian decree does not prohibit the importation of meat products from animals that have undergone ritual slaughter in another country. Read more about animal welfare in slaughterhouses — which aims to minimize the pain, distress or suffering of farmed animals at the time of killing — from the European Food Safety Authority.

In a blow against the practice of kleptocracy, the International Court of Justice (ICJ) has ruled that diplomatic immunity does not extend to Equatorial Guinea's vice-president Teodoro Nguema Obiang Mangue — son to the country’s head of state since 1979 – who is accused by France of acquiring a luxury mansion in Paris through misappropriation of his nation’s public funds. The mansion was later claimed to be used for diplomatic functions, allegedly to cover Obiang's corruption. Equatorial Guinea v. France is a convoluted case, according to an analysis by Anton Moisienko, who notes that the ICJ's recent judgment demonstrates a retreat into legal formalism. "In 2018, the ICJ declined to consider the alleged interference with Equatoguinean internal affairs and breaches of Obiang's personal immunities as a high-ranking state official, since there was no agreement between Equatorial Guinea and France that would provide the ICJ with jurisdiction over such issues. France could not, therefore, be made to answer any such case brought by Equatorial Guinea. However, the Vienna Convention enabled the ICJ to examine the status of the building at 42 Avenue Foch because both France and Equatorial Guinea had signed up to the ICJ's jurisdiction over matters covered by the Convention, such as the extent and application of diplomatic immunities." As described in an ASIL International Law in Brief, members of the ICJ bench issued a number of separate and dissenting opinions in this case.

In early January, a piece in The Guardian declared that a critical task of the incoming U.S. president would be to repair the damage wrought by the Trump administration's cruel and destructive immigration policies, particularly the one that forcibly separated parents from their children at the U.S.-Mexico border. Human Rights Watch also urged the new administration "to provide a fair asylum system and humane treatment of all migrants at the U.S. border." It seems that the Biden administration received the message. As CNN reports, "President Joe Biden's administration has begun taking steps to shift the tone — from restricting immigration to welcoming immigrants — in its first few days. Shortly after taking office, Biden released a slew of immigration executive actions and orders, including reversing the travel ban on predominantly Muslim countries, halting border wall construction and placing a 100-day pause on deportations." While many Americans are elated by these positive steps, a Boston University immigration law professor reminds us that the hard work is just beginning.

Between 18 January and 6 February 2021, a series of hearings is being held by the International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States to explore the killing and maiming of unarmed Black people. Organized by the International Association of Democratic Lawyers, the National Conference of Black Lawyers, and the National Lawyers Guild, these hearings build on the work of the UN Human Rights Council (HRC). During an urgent debate on these issues in June 2020, the HRC condemned "the continuing racially discriminatory and violent practices perpetrated by law enforcement agencies against Africans and people of African descent." The Commission of Inquiry is collecting testimony on numerous cases of police violence in the U.S., including both high-profile and lesser known incidents. The Commission of Inquiry will issue a Final Report of its findings for submission to the UN High Commissioner on Human Rights, relevant officials, and the public.

Interested parties can register to follow the remaining hearings live and access both the video and transcripts of past hearings at the Commission of Inquiry website.

Early in 2020, the British Institute of International and Comparative Law (BIICL) invited academics, former judges, practitioners and commentators to suggest ways in which some aspect of the law or our justice system might be reimagined. The challenge? They had to do it in just 50 words. Topics for consideration in the Reimagining the Law series included international courts and tribunals, treaty bodies, regional human rights courts, and environmental law. BIICL has now created videos that revisit the wide range of ideas contributed to the series and provide more detail from selected contributors about how their ideas might be put into practice. Explore the entire Reimagining the Law series and these videos at the series webpage.

The most recent issue of the Cross-Cultural Human Rights Review, an open access journal, focuses on a critical and timely topic: Human Rights Protection in Epidemic Situations. The issue includes articles addressing the systemic subjugation revealed by COVID-19 and the need for new human rights approaches, how culture is a crucial component of public health measures, and the human rights challenges that arise when holding elections during a pandemic. This issue also features a review of Oumar Ba's new book, States of Justice: The Politics of the International Criminal Court (Cambridge University Press, 2020). The contents of the entire issue may be downloaded at the journal's website.

A recent open-source publication, Advancing the Impact of Victim Participation at the International Criminal Court: Bridging the Gap between Theory and Practice (pdf), explores one of the ICC's signature features. Edited by Rudina Jasina and Gregory Townsend, this collection of essays offers insights into the jurisprudential and normative developments of victim participation, especially regarding implications of such participation for the functionality of court proceedings, the rights of the accused, and the rights of victims themselves. According to the introduction, the collection "is designed to spell out the problems faced by the ICC, examine critically how ICC jurisprudence and rule-making have defined the scope and impact of participation, and assess whether the current reality on the ground lives up to the normative framework that victim participation seeks to espouse. Legal practitioners, and particularly legal representatives of victims at the ICC, will benefit greatly from a publication that offers up-to-date analysis of the theoretical and jurisprudential developments of victim participation."