Programs in International Justice and Society

This month’s Spotlight was contributed by Annabelle Lukin, Associate Professor of Linguistics at Macquarie University. For many years, she has studied language ideologies around war and violence. She comments here on her recently published article analyzing the International Criminal Court’s Rome Statute.

The standard narrative about the history of international war law is that it has had a civilizing effect on the violent impulses of nation states. But this “standard Western-European-centric view” is so contested that some suggest international war law verges on being a protection racket.

A 1994 critical history of the laws of war titled “The Legitimation of Violence” (Jochnick and Normand, 1994) and published in the Harvard International Law Journal, for instance, drew attention to the paradoxical fact that “a more elaborate legal regime has proceeded apace with the increasing savagery and destructiveness of modern war.” The laws of war, Jochnick and Normand argue, have been deliberately formulated “to privilege military necessity at the cost of humanitarian values.”

McGill University Professor of Law Frédéric Mégret argues that treaties, statutes and customary war law sources “enable, constitute and perpetuate” war and have produced “the basic building blocks of the international grammar of violence,” such that the right to life is “sacrificed on the altar of inter-group violence.”

These different interpretations of the meaning of international war laws are no surprise: legal language, despite the best efforts of great legal minds, is still subject to all the same principles as other acts of meaning. And in the hands of powerful nation states wanting to protect their own ways of war, it is not difficult even within the stretch of a single clause to purport to be criminalising political violence, while creating the semiotic space for some forms of such violence to be given the legitimacy evoked by being seen as legal.

In my recent article, I explored some linguistic features in the definition of “war crimes” in the Rome Statute, the treaty establishing the International Criminal Court. This document clearly condemns and criminalises various forms of violence. Article 8 devotes considerable semiotic energy to listing, in apparent exhaustive detail, the many acts that fall under the term “war crimes.” So, is there still space and scope here to legitimise violence?

But deep inside the grammatically intricate structures of this text, the text has a loophole so big you could drop a very large so-called “smart” bomb through it.

Thanks to clause 8.2 (b) (iv), even if you intentionally launch an attack on unprotected civilians and you know full well your attack will cause deaths to innocent people, you only have to say you anticipated that your action would produce “military advantage” without an “excessive” cost. That's all it takes to put a government's acts of violence on the right side of “war crimes.”

A pervasive motif runs through Article 8. Crimes are not measured by the consequences of the violence, but by whether or not the actions were “wilful,” and how one might argue about the purported “purpose” of their acts of violence.

It's hard not to agree with the critical analysis. A whole host of linguistic choices which are busy condemning some violence as “war crimes” provides the perfect semiotic ecosystem for giving legal cover to standard practices of powerful nations.

Judge Joan E. Donoghue (USA) was elected President of the International Court of Justice (ICJ) by her peers last month, and Judge Kirill Gevorgian (Russian Federation) was elected Vice-President, each for a term of three years. Donoghue has been on the ICJ bench since 2010. Prior to that time, she served as Acting Legal Adviser in the US Department of State and also advised both Presidents Clinton and Obama on all aspects of international law. Read her full bio at the ICJ website. Donoghue is only the second American to lead the principal judicial organ of the United Nations, which was established in 1946. The first was Stephen Schwebel, who served as President from 1997 to 2000. Donoghue is also the second woman to serve as President, the first being Rosalyn Higgins (UK), who held the position from 2006 to 2009.

The World Trade Organization (WTO) has a new leader, Dr. Ngozi Okonjo-Iweala (Nigeria). She is not only the first woman to serve as the WTO Director-General but also the first from the African continent. Okonjo-Iweala, an economist and former finance minister of Nigeria, has her work cut out for her. The WTO has suffered from a lack of US support over a number of years and has been unable to replace members of its Appellate Body due to stonewalling by both the Obama and Trump administrations. Read more about the Appellate Body crisis in a 2020 commentary from Jurist. Dr Okonjo-Iweala has indicated that a key priority for her will be to work with the 164 member states of the WTO to quickly address the economic and health consequences brought about by the COVID-19 pandemic. Read more from The New York Times.

Two new judges have been elected for a term of six years to the African Court of Human and Peoples’ Rights (ACtHPR) – Dumisa Buhle Ntsebeza (Republic of South Africa) and Sacko Modibo (Republic of Mali). Rafaâ Ben Achour (Republic of Tunisia) and Imani Daud Aboud (United Republic of Tanzania) have been re-elected for their second and final term. The ACtHPR, headquartered in Arusha, Tanzania, has a bench of eleven judges who are nationals of member states of the African Union. The outgoing president of the Court, Sylvain Oré (Republic of Côte d’Ivoire) applauded the recent elections, noting that the Court is fully convinced that these judges will further the protection of human rights in Africa. Learn more about the Court and its work at the ACtHPR website.

At long last, the International Criminal Court (ICC) can put a name to its new Prosecutor. The nomination and election process took longer than expected, with a lack of consensus around the first short list of candidates leading to an extension of the nomination period. In the final rounds of voting by members of the Assembly of States Parties (ASP) – the ICC’s governing body – British barrister Karim Khan emerged victorious over candidates from Ireland, Italy and Spain. This is the first time that the ICC will have a prosecutor from the global North, which international justice commentator Kevin Jon Heller urged as an outcome in early 2020, believing such leadership would encourage countries such as France, the UK and the US, along with the UN Security Council, to more fully support the Court’s work. Khan currently heads a United Nations investigation into war crimes committed by the Islamic State group in Iraq. He is best known for his work as a defense counsel in high-profile international criminal trials and his impressive oratorical style. For a range of views on Khan and his election, listen to an Asymmetrical Haircuts podcast.

The ASP has also elected its own new leader. Former ICC Judge Silvia Fernandez de Gurmendi, who served as the Court’s President from 2015 to 2018, took over this role in February 2021.

Last month’s trial judgment by the ICC in the case of The Prosecutor v. Dominic Ongwen attracted global attention. Ongwen was found guilty of a total of 61 crimes against humanity and war crimes, committed in Northern Uganda between 1 July 2002 and 31 December 2005 while a commander in the Lord’s Resistance Army (LRA). These crimes included torture, enslavement, outrages upon personal dignity, pillaging, various sexual and gender-based crimes, and the crime of conscripting children under the age of 15. This last crime has been one of particular interest to those following the trial, including victims of Ongwen’s actions. Kidnapped and recruited as a child soldier himself, Ongwen’s dual status as victim and perpetrator has raised controversy and engendered much commentary. In the end, the trial judges rejected the defense team’s assertion that Ongwen suffered ongoing psychological damage due to his own child soldiering experience, accepting the prosecution’s argument that he was fully responsible for the crimes he ordered as an LRA commander. Mark Drumbl, a specialist on the phenomenon of child soldiering, pointed out the inconsistency between the trial chamber’s conclusions in Ongwen and those from the ICC’s first trial, The Prosecutor v. Thomas Lubanga Dyilo. “There, in Lubanga, we were solemnly told that child soldiering forever leaves scars, it mars indelibly; those children, there as witnesses, were desecrated, could never function properly, regardless of their age always remained child soldiers, and their childhood defined their adulthood. But not Ongwen. He is an exception to all that.”

A recent judgment by the European Court of Human Rights (ECtHR) in the Case of Georgia v. Russia (II) has been hailed as historically significant but unclear. Dealing with the past conflict between the two states, the Court found Russia responsible for several violations of the European Convention on Human Rights, including unlawful killing, torture, arbitrary detentions, lootings and destruction of villages during the invasion of Abkhazia and South Ossetia in August 2008, as well as the ensuing armed conflict and occupation. It thus contributes to the historical record about this conflict. It is furthermore only the fourth interstate complaint ever to be resolved by the ECtHR. At the same time, according to Helen Duffy in Just Security, “the judgment will also go down in history for less inspiring reasons: namely, its contribution to the chaos and confusion in the Court’s already troubled jurisprudence on the ‘extra-territorial scope’ of the Convention.” Marko Milanovic in EJIL Talk! writes, “This is a very important judgment – a substantial, but far from total win for Georgia – but also a very disappointing one. Regardless of the final outcome, the Court’s reasoning on the key points of jurisdiction and the applicability of the European Convention in armed conflict is exemplary only in its arbitrariness. It is a retrograde step, putting the Court firmly against the overarching trend in international jurisprudence and underscoring its position as an outlier when compared to other human rights bodies.”

Register for an upcoming online event by the British Institute on International and Comparative Law that further explores the extraterritorial application of human rights law.

A late January 2021 ruling by a Dutch appeals court found that a subsidiary of the British-Dutch multinational Royal Dutch Shell was liable for oil spills in Nigeria’s Niger River Delta dating back to 2006 and 2007. It ordered the company to compensate a small group of residents in the region and to start purifying contaminated waters within weeks. The New York Times called this a great environmental victory in a “David and Goliath” legal battle, the culmination of a years-long judicial saga between four Nigerian farmers and a powerful multinational corporation that could pave the way for more cases against the oil company in the region. The environmental group Friends of the Earth, which supported the farmers’ claims before the Dutch courts, said that the ruling “exceeds all expectations.” Less than two weeks later, Britain’s Supreme Court ruled “that a group of about 50,000 Nigerian farmers and fishermen could bring a case in London’s High Court against Royal Dutch Shell over years of oil spills in the Niger Delta that have polluted their land, wells and waterways.”

To read about another business and human rights lawsuit involving an extreme power differential, see The Guardian’s report on the claims brought in a US court by children in Ivory Coast against the world’s biggest chocolate companies, including Nestlé, Hershey, Mars, and Cargill. The young people accuse the corporations of “aiding and abetting the illegal enslavement of thousands of children on cocoa farms in their supply chains.” It is the first time that this kind of class action suit has been filed in the US against the cocoa industry.

Does the future of international criminal justice lie in domestic courts that apply the principle of universal jurisdiction? Some recent judicial activity would seem to point in that direction.

A German court has sentenced a former Syrian secret service agent to four-and-a-half years in prison on charges of aiding and abetting crimes against humanity. The Syrian national had obtained asylum in Germany in 2018 but was arrested in 2019 after being recognized by torture victims. Deutche Welle reports, “[t]he verdict in the western German city of Koblenz marks the first time a court outside Syria has ruled on state-sponsored torture by the regime of Syrian President Bashar Assad. Human rights campaigners hope the decision will set a precedent for other cases.” The trial of this Syrian national followed a ruling in late January by the German Federal Court of Justice that foreign soldiers are not protected from prosecution for war crimes in Germany. That decision stemmed from the earlier trial of a former Afghan officer who had been given a suspended sentence for dangerous bodily harm and a war crime at a higher regional court in Munich.

Meanwhile, the trial of a Liberian national for war crimes committed between 1993 and 1995 in the context of the Liberian Civil War has resumed in Switzerland, where he has been living since 1999. Human Rights Watch reports that the Swiss Federal Criminal Court, in the city of Bellinzona, began the trial of this former commander of the United Liberation Movement of Liberia for Democracy armed group in December 2020. Swiss prosecutors accuse him of various crimes, including ordering the murder and cruel treatment of civilians, rape, and pillage. The trial had been paused in order to bring Liberian witnesses and victims to Switzerland to testify.

Finally, the trial of a Sierra Leonean accused of war crimes has begun in Finland. Finnish prosecutors believe that the accused, who has been living in Finland for ten years, held a leading position in the Revolutionary United Front, a rebel army in Sierra Leone that was involved in the Liberian civil war. Charges include the alleged direct or indirect participation in rapes, murders, cannibalism and using child soldiers during the conflict in Liberia between 1999 and 2003. In a rare move, the trial will temporarily relocate to Liberia and neighboring Sierra Leone to hear testimony from dozens of witnesses on the alleged atrocities carried out by the accused or by others on his orders. This proceeding has been called the “Finnish revolution in universal jurisdiction” by international criminal justice specialist Thierry Cruvellier.

ICL Media Review reports that an Argentinian Court has convicted eight former members of Argentina’s security forces for crimes against humanity. The Court held that the group participated in torture and other crimes committed in La Escuela Superior de Mecánica de la Armada (ESMA), which served as a clandestine detention center in Buenos Aires during the country’s 1976-1983 dictatorship. The trial, which is the fourth concerning crimes committed in ESMA, lasted two years and examined the cases of 816 victims. Together all the cases have resulted in 59 convictions, concerning more than 800 victims. ESMA is now a memorial museum to protect and promote human rights.

The United Nations Human Rights Committee recently issued a decision indicating that Italy failed to protect the right to life of more than 200 migrants who were on board a vessel that sank in the Mediterranean Sea in 2013. When the sinking boat, carrying more than 400 adults and children, put out various distress calls, Italian authorities failed to respond promptly even though an Italian navy ship was only an hour away from the scene. The investigation shows, reports The Guardian, that Italian authorities instead referred the situation to the Maltese coastguard, which arrived almost five hours later when the boat had already capsized. The Committee’s decision responds to a joint complaint lodged by three Syrians and a Palestine national, who survived the accident but lost their families. The entire decision may be read here.

In other UN human rights news, the Biden administration has decided that the United States will rejoin the Human Rights Council as an observer. The US left the UN’s intergovernmental human rights body in 2018, with former President Donald Trump’s administration claiming it was biased against Israel, needed a number of reforms, and had among its members countries that have been accused of human rights abuses such as China, Cuba and Venezuela. Although the current Secretary of State, Antony Blinken, cited similar concerns, he noted that the US withdrawal created a vacuum in leadership which “countries with authoritarian agendas have used to their advantage.” The UN, American Civil Liberties Union (ACLU), and other organizations have applauded the Biden administration's decision. But director of the ACLU’s Human Rights Program added, “The administration’s credibility on international human rights will be judged by how close it will match its rhetoric with concrete actions to advance human rights at home and abroad.” Read more about the aims and workings of the Human Rights Council at its website.

A new e-publication, Contested Histories in Public Spaces: Principles, Processes, Best Practices, offers guidance for decision-makers who seek to settle disputes over statues, street names, monuments, and other historical markers surrounded by controversy. This publication is the first volume of case studies to be produced through a multi-year joint initiative by the Institute for Historical Justice and Reconciliation, the International Bar Association and Salzburg Global Seminar. The volume features 10 case studies, “drawn from a survey of more than 230 controversies over legacies of slavery, colonialism, fascism, communism, and mass atrocity or human rights abuses. The cases explore the range of possible remedies: from status quo to placarding, resignification and repurposing, to relocation, removal, or destruction.” Disputes include those over the legacies of Christopher Columbus, Robert E Lee, and Cecil Rhodes. Visit the publication webpage for purchase options and to view a recording of the 11 February 2021 book launch.

A recent blogpost from the International Committee of the Red Cross (ICRC) offers an Islamic perspective on the treatment of prisoners of war (POWs), as laid out in the Third Geneva Convention. ICRC Legal Advisor Ahmed Al-Dawoody notes that two-thirds of contemporary armed conflicts are occurring in Muslim contexts wherein certain persons carrying arms cite Islamic law as a reference. Al-Dawoody writes, “In juxtaposing and examining these two bodies of law – Islamic law and international humanitarian law – there are two key issues relevant to the protection of POWs that clearly stand out: humane treatment, where the two bodies align, and the killing of POWs, where interpretations risk diverging.” Read the entire blogpost at the ICRC’s Humanitarian Law and Policy blog.

How do United Nations treaty bodies ensure a proper balance between safeguarding the universality of human rights on the one hand and respecting cultural particularities on the other? A recent publication by Intersentia, Culture in the State Reporting Procedure of the UN Human Rights Treaty Bodies examines this challenge in the work of the Human Rights Committee; the Committee on Economic, Social and Cultural Rights; and the Committee on the Elimination of Discrimination against Women. As the subtitle of the volume indicates, this balancing act is purportedly achieved by using human rights as “a sword to protect and safeguard culture” and as “a shield to protect against harmful culture.”