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.
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Spotlight on Language, Culture and Justice
By Julie Fraser, Assistant Professor of Law, Utrecht University
The large-scale Black Lives Matter protests in the middle of 2020 made it impossible to look away from structural biases and inequalities around the world. As an international lawyer, I reflected further on how the norms and institutions of international law also privilege and silence certain perspectives and practices. This dove-tailed with the ongoing movement to decolonise international law and the university more broadly. In an effort to both expose and address this issue in relation to one branch of international law, I wrote the paper: "A Seat at the Table: Islamic Law’s Neglected Potential in Universalising International Humanitarian Law.”
This paper borrows from Third World Approaches to International Law (TWAIL) scholarship to demonstrate the gaps in international humanitarian law’s claim to universality and its skew towards Eurocentrism. While TWAIL scholars have analysed numerous branches of international law, international humanitarian law remained under-studied. I am particularly attracted to TWAIL scholarship given its inherent creativity and underlying commitment to realising the emancipatory potential of international law for all people. As an international lawyer, but primarily a human rights lawyer, I am driven by the goals of dignity and equality for all.
My paper argues that Islamic laws of war are historically and normatively highly relevant for international humanitarian law – as scholarship has shown – but that they have been largely neglected to date. Such oversight can be observed in older bodies like the International Committee of the Red Cross (ICRC) as well as newer institutions like the International Criminal Court that prosecutes war crimes. I argue that making epistemic space for Islamic law within the body of international humanitarian law can contribute to making international law more genuinely universal. While the ICRC has begun to engage with Islamic law and jurists, notably Dr Al-Dawoody who is the Legal Adviser for Islamic Law and Jurisprudence at the ICRC, there is still room to improve.
Another practical reason for urging attention to the Islamic laws of war is the fact that contemporary conflicts occur disproportionately in Islamic contexts. Sadly familiar examples here include Syria, Yemen, Sudan, Iraq, and Afghanistan. I argue that in addition to remedying some of international law’s ‘international’ deficit, drawing from Islamic law may be important to addressing armed conflicts in these contexts.
The paper is now available on SSRN.
People in the News
On the occasion of the 75th anniversary of the International Court of Justice (ICJ), President Joan Donoghue (USA) reflected on the history and accomplishments of the Court but did not hold back from commenting on where it falls short. Donoghue referenced, in particular, the mismatch between the current number of sovereign states that are United Nations members, 193, and the representativeness of those who appear before the ICJ’s bench. Donoghue wrote, “Each time that I gaze out at the delegations representing parties…, I am struck that their composition bears too much resemblance to the groups of persons who gathered in 1945 to draft the Charter of the United Nations and the Statute of the Court. Very few of the counsel are from developing countries and almost all, regardless of nationality, are men.” She spoke very favorably of the Court’s Judicial Fellowship Programme, which brings a select group of international law students to the ICJ for 10 months, where they are assigned to work with a judge, attend public hearings of the Court, and research and write memoranda on legal questions and factual aspects of pending cases. Donoghue wrote enthusiastically of the Trust Fund that now supports participation in the Programme of law students from developing countries. “It will enhance the geographic and linguistic diversity of the participants in the Programme and will provide a training opportunity that would not otherwise be available to these young jurists.”
International lawyer and author Philippe Sands recently published an op-ed in The New York Times where he took both the United Kingdom and the United States to task for their hypocrisy concerning the law of the sea. Both countries are adamant that China should comply with the 2016 legally binding arbitral award issued by the Permanent Court of Arbitration, ruling that China’s expansionist activities in the South China Sea violated the UN Convention on the Law of the Sea (UNCLOS). But this position is undermined by Britain’s refusal to accept a recent advisory opinion of the ICJ and a subsequent case before the International Tribunal for the Law of the Sea (ITLOS) concerning its own activities in the Chagos Archipelago in the Indian Ocean. These proceedings confirm the assertions of Mauritius that Britain illegally separated the Archipelago from Mauritius when the latter gained its independence from Britain in 1965, and that the former imperial power has thus continued to engage in colonialism. One of the islands in the Archipelago, Diego Garcia, was granted to the US where it has had a strategic military base since 1966. The UK has refused to acknowledge the rulings of both the ICJ and ITLOS, supported by the US which wishes to retain its military presence in the region. Sands writes, “Britain’s brazen double standard is grotesque, and damaging. Among other things, considering the U.S. military base on Diego Garcia, it undermines the Biden administration’s effort to use UNCLOS to hold China to account for its expansionism.”
International lawyer and former International Criminal Court judge Sir Howard Morrison has joined the Guernica 37 International Justice Chambers, which takes its name from a deadly bombing perpetrated by the Nazis in the Basque region during the Spanish Civil War. On the Chambers’ website, Guernica 37 describes itself as “specialist Barristers’ Chambers experienced in advising and assisting States as they commence a process of structural reform and transformation following periods of political instability, post-conflict, post-authoritarian regimes or prolonged periods of state institutions controlled by systemic and structural corrupt practices.” Morrison has extensive experience in international criminal as well as humanitarian law, and has served as both a judge and defence counsel in several international criminal institutions. Learn more about Morrison through a 2015 interview conducted as part of Brandeis University’s Ad Hoc Tribunal Oral History Project.
Advocates of gay marriage may have a mixed reaction to a recent advisory opinion from the European Court of Justice (ECJ). An advocate general of the Court has indicated that Bulgaria should provide a travel document to a child naming both her mothers – a Bulgarian-British married couple – in order to conform to the European Union-wide right to free movement. But the Bulgarian government may also decline to name the two women as parents on its national birth certificate, even though Spain, where the couple resides, listed both mothers on the child’s original birth certificate. As reported in Thomson Reuters Foundation News, the opinion read: "If the child is a Bulgarian national ... Bulgaria must issue her with an identity document or a travel document referring to (the Bulgarian woman) V.M.A. and her wife as the parents, in order to allow the child to travel with each of her parents individually. By contrast, Bulgaria may ... justify the refusal to recognise the parentage of the child… within the meaning of domestic family law." The news report notes that this contradiction “highlights the conundrums faced by gay couples in the 27-nation EU where some countries allow for same-sex marriage and parenting, while others do not.”
Meanwhile, in southern Africa, a Namibian national and his Mexican husband have been fighting for the right to bring their twin daughters, born through surrogacy in South Africa, back to their home in Namibia. Authorities have indicated that citizenship papers for the babies will not be issued unless a genetic link to the Namibian father is proven, a decision upheld by the High Court of Namibia. The couple was surprised by the judgment, according to a Reuters report: “Namibia's legal system does not recognise same-sex marriages and criminalises sexual contact between men, though the law is seldom, if ever, enforced.” The couple, who contend that requiring evidence of a genetic link to obtain citizenship has no basis in law and is discriminatory, also has a two-year old son who has not yet received Namibian citizenship.
Developments in International Justice
The Inter-American Commission on Human Rights (IACHR) and its Office of the Special Rapporteur on Economic, Social, Cultural and Environmental Rights recently celebrated the entry into force of the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters, also known as the Escazú Agreement. According to an IACHR press release, the Agreement “reinforces principles and obligations established in inter-American legislation and jurisprudence on the right to a healthy environment, highlighting the need to guarantee the so-called ‘access rights’ to ensure its validity, such as the effective protection of the right for people to defend the environment.” The entry to force was triggered upon 11 ratifications by countries in Latin America and the Caribbean, and it significantly occurred on April 22, which since 1970 has been observed as Earth Day.
In its recently released World Press Freedom Index, Reporters without Borders (RSF) finds that journalism is totally or seriously impeded in three-quarters of the countries evaluated. RSF contends that the Index data “reflect a dramatic deterioration in people's access to information and an increase in obstacles to news coverage. The coronavirus pandemic has been used as grounds to block journalists’ access to information sources and reporting in the field… The data shows that journalists are finding it increasingly hard to investigate and report sensitive stories, especially in Asia, the Middle East and Europe.” RSF also notes increasing violence against journalists and accusations that they circulate “fake news.” RSF secretary-general Christophe Deloire characterizes journalism as “the best vaccine against disinformation.” Investigate where your country ranks in the Index.
Impatient with the lack of action on the part of the Malian government to outlaw female genital mutilation (FGM), a number of women’s rights organizations have brought a claim against Mali at the Court of Justice of the Economic Community of West African States (ECOWAS). Mali is a party to the UN Convention on the Elimination of Discrimination against Women, the African Charter on Human and Peoples’ Rights, and the Charter’s Protocol on the Rights of Women in Africa. The latter specifically includes articles against the elimination of harmful practices such as FGM. According to RFI, “[t]he case… could set a legal precedent and establish case law in West Africa and the African continent as a whole, using a regional court to hold a state accountable for its obligations to protect women. Such legal action has previously been taken against the Malian state in relation to child marriage, but using similar legal avenues for stopping FGM would be a first.” While the ECOWAS Court primarily addresses issues of regional integration, it has increasingly taken on human rights cases in recent years, as explored in the 2013 publication A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice.
The recent removal of financial sanctions imposed by the US government in 2020 against high-ranking African officials in the ICC’s Office of the Prosecutor, as well as Americans who work with the Court, has been met with a sigh of relief in the international justice community. In a Just Security commentary, Andrew Boyle calls the use of sanctions “to bully a 123-member international judicial institution was an egregious abuse of sanctions powers by the Trump administration.” He furthermore writes that the sanctions alienated allies and damaged the US’ image as a country that supports accountability for mass atrocities and exercises responsible stewardship over the financial banking system. Boyle urges the US Congress to reform the International Emergency Economic Powers Act so that similar sanctions cannot be re-imposed on the future. Diverse aspects of the US sanctions against the ICC were explored in a recent Opinio Juris ICC Sanctions Symposium, including the apparent racism in targeting only African officials, the need to see these sanctions as having deeper roots than the Trump administration, and the relation of the sanctions to US notions of exceptionalism.
As COVID-19 infection rates reach new heights in many countries, questions are being raised about “the new colonialism” – that is, the hoarding of vaccines by western countries. An op-ed by Akin Olla in The Guardian reports that 130 countries, as of mid-February 2021, had not administered a single dose of COVID-19 vaccine. This stands in contrast to resource-rich countries that are rolling out mass vaccination campaigns. Countries in North America and the European Union are also sitting on large supplies of unused vaccines as they prioritize the health of their own citizens over those of resource-poor countries. Olla notes, “We are dangerously close to an era in which vaccinated and unvaccinated countries become a new layer of the have and have-nots, the colonizer and the colonized, the wealthy and the poor. We must resist this new apartheid and instead invest in a global vaccine solution that breaks from the last few centuries of exploitative power dynamics.” This view was echoed by the President of the African Development Bank, who called for “global vaccine solidarity”. According to Relief Web, the bank leader “underlined the stark disparities between vaccine acquisitions by several rich countries that have acquired sufficient vaccines to inoculate their populations twice over, and African countries, that remain primarily dependent on the World Health Organization’s COVAX initiative for the minuscule quantities of vaccines acquired so far.” In response to intense pressure and the ongoing COVID crisis in India, the Biden administration has now vowed to make available to other countries up to 60 million doses of the Astra Zeneca vaccine. Significantly, this vaccine has not been authorized for use in the US.
The onset of Ramadan, the holy month during which communal prayer and social gatherings by Muslims around the world are traditional, raises further risks for increased infection rates. The World Health Organization has issued safety guidelines for Ramadan, while authorities in Saudi Arabia, Egypt and Kuwait have imposed preventive measures to combat the spread of COVID during Ramadan.
The Association of Southeast Asian Nations (ASEAN) has called a summit to discuss responses to Myanmar’s brutal crackdown on persons protesting the military overthrow of Aung San Suu Kyi's elected government in February 2021. Reuters reports, however, that ASEAN’s “principles of consensus and non-interference have restricted its ability to overcome members' divergent views on how to respond to the army's killing of hundreds of civilians.” The European Union has now announced sanctions against top military leaders in Myanmar, hoping to curb serious human rights violations. UN Secretary Antonio Guterres has highlighted the important role of ASEAN in resolving the conflict in Myanmar. According to a UN news story, Mr. Guterres has also noted that “his Special Envoy for Myanmar… is in the region and stands ready to resume dialogue with the military and others, ‘and to contribute to a return of Myanmar to the democratic path, and to peace and stability.’”
Publications and Resources of Interest
The International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), an intergovernmental organization promoting the conservation of all forms of cultural heritage across the world, has created a tool to help it achieve its goal. According to the ICCROM website, the Peacebuilding Assessment Tool for Heritage Recovery and Rehabilitation (PATH) was designed to provide insights into the cultural drivers of conflict “that have the potential to prolong it or make it reoccur due to unresolved grievances.” ICCROM emphasizes that while cultural heritage can be a factor of division in conflicts characterized by complex incompatibilities of power, resources, religion, ethnicity and identity, it can also be a component for peace, reconciliation and development. Download the PATH Toolkit, which provides a description of core principles as well as examples from diverse conflict settings where the tool was tested, including Syria, Mali, the US, and Bosnia and Herzogovina.
In a recent contribution to the iCourts Working Paper Series, author Gregor Maucec challenges the way in which the ICC has “tended to consider atrocities motivated by discrimination on isolated discriminatory grounds and independently from each other.” “Law Development by the International Criminal Court as a Way to Enhance the Protection of Minorities - The Case for Intersectional Consideration of Mass Atrocities” takes as its point of departure the reality that most mass atrocity crimes target racial, ethnic, religious and/or political groups, and that many victims represent an intersection of several identities. Maucec writes, “Both experience and international case law demonstrate that atrocity crimes have mostly been inflicted on minorities within minorities. With individuals being targeted on several personal grounds or due to overlapping identities (for example, women and girls belonging to ethnic or religious minorities) there is a strong case for both scholarship and international criminal judiciary to develop an expertise on intersectional discrimination in the context of international crimes that implicate discriminatory intent of a perpetrator.”
How does genocide affect societies in the era following genocidal killing? A new volume edited by University of Exeter scholar Klejda Mulaj, Postgenocide: Interdisciplinary Reflections on the Effects of Genocide (Oxford University Press), deepens and broadens considerations of genocide’s aftermath. Postgenocide suggests that in order to understand the impacts of genocidal killing, one must examine how the experience moulds social realities afterward. This volume offers insights into various permutations of genocide harms, and legal recourse, after the fact; scrutiny of the efficacy of genocide law and prospects for its enforcement; socio-political responses to genocide—including efforts toward recovery and reconciliation; and genocide’s impacts on victims’ communities and their efforts to bring about recognition and redress. Moreover, the contributing chapters pay attention to genocide’s effect on the communities of perpetrators and their attempts at denial and revisionism, as well as to the (re)construction of genocide narratives via the display of victims’ objects in museums, galleries, and archives. Very important, Postgenocide demonstrates what diverse disciplines – including law, political science, sociology, and ethnography – can bring to bear on genocide scholarship and assumptions in the field.