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
A new book by Language, Culture and Justice Hub member Alexandra Grey has just been published (Contributions to the Sociology of Language #113, De Gruyter Mouton 2021).
Language Rights in a Changing China is the culmination of eight years of research, including fieldwork in four provinces across the People’s Republic of China. The book examines the constitutional minority language rights that China has had since the mid 20th century, and what they mean, both legally and socially, today. Over eleven chapters, this book offers an innovative combination of legal and sociolinguistic research methods, including ethnographic and linguistic landscape data, and a detailed case study of Zhuang, the language of China’s largest official minority group.
The case study traces minority language rights and policy from the Constitution to local government rules and practices, investigating how Zhuang language rights are experienced as opening or restricting socioeconomic opportunity. It compares Zhuang language rights to the language rights relating to the national language, which have been enshrined in legislation since 2000. Amongst other findings, the study finds that language rights do not empower Zhuang speakers, nor challenge ascendant marketised and mobility-focused language ideologies which ascribe low value to Zhuang. However, people still value a Zhuang identity validated by government policy and practice.
Part One sets China’s language rights and minority languages in a context of contemporary change and offers a profile of Zhuang language.
Part Two analyzes China’s legislation about language and formal decision-making framework within which this legislation operates. It identifies the competing ideologies within these laws and critiques the distribution of authority to govern Zhuang. Overall, Part Two argues that the language governance framework neither empowers Zhuang speakers nor the institutions tasked with governing Zhuang, despite the existence of a nominally autonomous Zhuangzu region. Furthermore, the Zhuang language governance framework entrenches the normative position of a developmentalist ideology under which Zhuang is constructed as under-developed and of low value.
Part Two stands alone but also provides a foundation for Part Three’s empiric exploration of the Zhuang language governance framework in its situated practice and social reception.
Part Four sets out where Grey thinks 21st century Chinese minority language policy is headed, and in which respects she would like to alter its course. Finally, Grey engages in wider discussions of linguistic justice and reflects on the study’s general implications for theory, methodology and policy-making in relation to minority/language rights.
This is a thought-provoking work on minority rights and language politics, relevant well beyond China.
Read the contents page and selected excerpts at Google Books.You (or your library) can order a hard copy or digital copy.
You can also download the Preface and Chapter Ten - Conclusions in Mandarin, for free. On that same webpage, you can read an overview of the book in Zhuang.
People in the News
The world of international law is mourning the loss of Australian-born James Crawford, a luminary in the field. Described in a Guardian obituary by human rights lawyer and author Philippe Sands as “the outstanding public international lawyer of our age,” Crawford was involved in the most important developments in this area over the past several decades. He was very active in the International Law Commission, helped negotiate the Rome Statute of the International Criminal Court, and was serving on the bench of the International Court of Justice (ICJ) at the time of his death. Sands writes, “[a]s expert, counsel, arbitrator and judge he served in a vast number of international cases that developed various areas of the law, from arcane territorial and maritime boundary disputes to the creation of modern environmental law, from racial discrimination to genocide, from war to human dignity.” Read more about Judge Crawford in an ICJ press release. Brandeis University was honored to have him as a participant and presenter at the final session of the Brandeis Institute for International Judges in 2018.
James Crawford at BIIJ 2018, second row on the far right
Two new judges have been sworn onto the bench of the African Court of Human and Peoples’ Rights. They are Justice Dumisa Buhle Ntsebeza from the Republic of South Africa and Justice Sacko Modibo from the Republic of Mali. In a recent session, the Court also elected new leaders. Justice Imani Daud Aboud from the United Republic of Tanzania will serve as President for a term of two years, and Justice Blaise Tchikaya from the Republic of Congo will take on the role of Vice-President. June 2021 marks the 40th anniversary of the adoption of the African Charter on Human and Peoples’ Rights, which serves as the basis for both the African Court and Commission of Human and Peoples’ Rights.
The United Nations International Residual Mechanism for Criminal Tribunals (Mechanism) has brought to a close the proceedings against Bosnian Serb military commander Ratko Mladić in its recent judgment, with the Appeals Chamber upholding his original guilty verdict and sentence of life imprisonment. Reuters reports that Mladić was “convicted in 2017 on charges of genocide, crimes against humanity and war crimes including terrorising the civilian population of the Bosnian capital Sarajevo during a 43-month siege, and the killing of more than 8,000 Muslim men and boys taken prisoner in the eastern town of Srebrenica in 1995.” Amnesty International applauded the decision, considering it “a historic moment which concludes a decades-long search for justice for the tens of thousands of victims of the armed conflict in Bosnia and Herzegovina.” Balkan Insight is less definitive about the long-term achievements of the Mechanism, and the International Criminal Tribunal for the former Yugoslavia which it succeeded. In a long review of the tribunals’ landmark judgments, controversies, successes and failures, this investigative reporting network suggests that the institutions have left an unclear legacy in the region that experienced such extreme conflict and violence in the 1990’s.
In a historic ruling, a judge in a Saõ Paulo court sentenced a dictatorship-era state agent to almost three years imprisonment for the 1971 kidnapping of a naval officer who subsequently disappeared. According to Human Rights Watch, the National Truth Commission found that more than 400 people were killed or forcibly disappeared during Brazil’s dictatorship, which lasted from 1964 to 1985. In 2010, the Brazilian Supreme Court upheld an amnesty law which shielded those responsible for such crimes, although the Inter-American Court of Human Rights later found that the ruling violates Brazil’s obligations under international law. Human Rights Watch notes, “[t]he conviction is a testament to the persistence of federal prosecutors, who have filed charges in more than 50 cases of dictatorship crimes. International law requires that states provide effective remedies for violations of human rights, including thoroughly investigating, prosecuting, and proportionately punishing those responsible.”
Developments in International Justice
What does the term “ecocide” mean exactly? A legal definition has now been articulated by an expert drafting panel working with the global foundation Stop Ecocide: “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.” The aim of Stop Ecocide is to add an amendment to the Rome Statute that would make ecocide a prosecutable crime before the International Criminal Court, the details of which can be found in this 12-page core text and commentary. If two-thirds of the ICC’s member states voted to adopt the amendment, ecocide would join genocide, crimes against humanity, war crimes and the crime of aggression as the so-called “fifth crime” that could be prosecuted at the ICC. Each member could then ratify and enforce it in their own national jurisdiction.
At least one international legal commentator, Kevin Jon Heller, finds some basic problems with the way in which ecocide has been defined, including the idea of “knowledge” of the likelihood of causing environmental damage and how it might be determined. He also notes that those states most likely to commit ecocide would simply decline to accept this new Rome Statute amendment. At the same time, Heller acknowledges “the symbolic importance of affirming individual criminal responsibility for knowing environmental destruction.” Read about the history of the move to criminalize ecocide and a discussion of the need to establish it as a crime before the ICC in an IntLawGrrls post by Rachel Killean.
A recent ruling by the European Court of Human Rights (ECtHR) found that the Lithuanian Parliament had violated several articles of the European Convention on Human Rights by not granting the status of State-recognized religious association to a pagan group. In Ancient Baltic Religious Association Romuva v. Lithuania the Court found a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 9 (freedom of thought, conscience and religion) of the Convention, as well as a violation of Article 13 (right to an effective remedy). The Ancient Baltic Religious Association comprises several religious communities following the old Baltic pagan faith, one of which was officially registered in Lithuania in 1992. In 2017 the applicant association asked to be granted the status of a State-recognized religious association. That status would entitle it to certain additional privileges, such as the right to provide religious education in schools, and the right to perform religious marriages that have the effect of civil marriages. The ECtHR judgment asserted that the State authorities of Lithuania did not respect the obligation to remain neutral and impartial when exercising their regulatory powers in the field of religion.
Coinciding with the 10th anniversary of the adoption of the Domestic Workers Convention, the International Labour Organization (ILO) has issued a sobering report on the status of this critical labor group. The report finds that for many domestic workers – a female-dominated sector employing 57.7 million women worldwide – employment conditions have not improved over the past decade, and they have been worsened in many cases by the COVID-19 pandemic. “The crisis has highlighted the urgent need to formalize domestic work to ensure their access to decent work, starting with the extension and implementation of labour and social security laws to all domestic workers,” said ILO Director-General, Guy Ryder. Read more at the ILO newsroom.
The Special Tribunal for Lebanon (STL), an institution which has pursued only a single case over twelve years – resulting in one conviction and three acquittals – is now in such dire financial straits that it may have to suspend operations. According to Reuters, “the U.N. tribunal, set up to prosecute those behind the 2005 assassination of Lebanese Prime Minister Rafik Hariri had run out of funding amid Lebanon's economic and political crisis, threatening plans for future trials.” Lebanon provides 49% of the STL budget, with 51% coming from voluntary contributions. The STL announced the cancellation of the opening of its second trial in early June 2021. It also suspended all decisions on filings presently before it, and on any future filings, until further notice. The Tribunal has asked the UN to assist in securing more funding for its work, and in recent days, it appears that some donors may be willing to come forward. However, according to the STL Registrar, certain conditions will have to be met. “In particular, some donors have requested the Tribunal to produce a detailed drawdown plan, detailing staffing and other costs, as well as a clear timeline for completion.”
The recent discovery of unmarked graves with thousands of remains next to former residential schools for Indigenous children in Canada has shone a light on what many already knew to be the truth: the students who were forced into institutions seeking to strip them of their traditional cultures and languages were often abused, and many disappeared without a trace. The New York Times reports that the remains found in the Kamloops Residential School in British Columbia, and in the Muskowekwan and Marieval Residential Schools in Saskatchewan, suggest that a national reckoning is coming. In a 2015 report by the national Truth and Reconciliation Commission, which gathered testimony over six years from former residents of Indian schools and their families, details of the sexual, physical and emotional abuse commonly experienced by these children – as well as their disappearance by the thousands – were documented. These schools were mostly run by the Catholic Church. The Commission characterized what the indigenous children underwent as “cultural genocide” and it issued recommendations for further reconciliation between Canadians and Indigenous peoples.
Legal scholar Fanny Lafontaine, who has been active in investigating crimes committed against Indigenous peoples in Canada, writes that it is difficult for many of her fellow citizens to admit the gravity of what took place. But, she notes, “Canadians are beginning to be able to contemplate what for many Indigenous people is a given: Canada committed genocide.” Some in the legal community also believe it is time for the next move – that the discovery of children’s remains on the sites of residential schools be investigated as a crime against humanity.
Canada’s neighbor to the south has taken inspiration from all these happenings. US Secretary of the Interior Deb Haaland (pictured), the first Native American to hold this important post, is now calling for a search into her own country’s residential school system. Haaland recently announced that “the United States will search federal boarding schools for possible burial sites of Native American children, hundreds of thousands of whom were forcibly taken from their communities to be culturally assimilated in the schools for more than a century.”
Tensions are high in Nigeria where the Twitter platform has been shut down by the government. This action followed removal of a tweet from President Muhammadu Buhari that threatened to punish regional secessionists, which Twitter said violated its rules. The ban has been challenged by Nigerian rights groups and journalists, who have launched a legal action before the Court of Justice of the Economic Community of West African States. Al Jazeera reports that the Court has restrained the Nigerian government from “unlawfully” prosecuting people who circumvent the Twitter ban while it considers the legal action. In the meantime, the Nigerian government proposes to negotiate the ban with Twitter, and it has also started to use the Indian microblogging platform Koo, which, according to Rest of World, has “positioned itself as the government-friendly alternative to Twitter.”
Adoption by the Hungarian parliament of a bill that bans discussion of sexual and gender diversity in schools, media, advertising, and other public spaces was protested by many groups in that country, including members of opposition parties. Human Rights Watch described the bill as a “homophobic and transphobic law, which conflates pedophilia with lesbian, gay, bisexual and transgender (LGBT) people. The law further stigmatizes LGBT people and facilitates the government’s ongoing trampling of their rights.” Hungary’s fellow members of the European Union (EU) have taken notice as well. When Hungarian Prime Minister Viktor Orban arrived at an EU summit after the bill was passed into law, his fellow leaders stressed their commitment to gay rights and indicated that the Orban government had gone too far. According to Reuters, this disagreement is “the latest in a long series of Orban clashes with the [EU] bloc on issues ranging from his treatment of refugees and migrants to pressure on academics, judges and media.” European Commission chief Ursula von der Leyen said that the EU would not compromise on principles such as human dignity, equality and the respect for human rights.
Publications and Resources of Interest
What kinds of reparations should former colonial powers provide the societies that suffered from their aggression, exploitation and a wide range of inhumane acts? JusticeInfo.Net now has a site collecting articles, maps and other resources around the topic Hour of Reckoning for Colonial Crimes. Readers can find information about calls for the return of cultural property, the creation of truth commissions to face colonial legacies, and the ways in which various countries are – and are not – considering reparations for the descendants of enslaved persons. JusticeInfo.Net asks, “[w]ill the tools of transitional justice be able to deal with these colonial crimes?
Approaches to overcoming more contemporary conflicts through peace processes are examined in a new report by the Global Initiative for Justice, Truth and Reconciliation. Peace Processes as Vehicles for Transitional Justice presents lessons and recommendations as to how peace processes can best nurture and promote transitional justice. It discusses strategies that stakeholders might adopt in order to motivate genuine discussion of transitional justice and break deadlocks, design robust and responsive programs, and boost compliance. It also provides specific guidance on the five core elements of transitional justice: accountability, truth-telling, reparations, institutional reform, and memorialization. Read more about the project which led to the report at the publication website. The report is also available in Spanish and Arabic.
Can waiving the intellectual property rights of manufacturers of COVID-19 vaccines until the majority of the world’s population has been inoculated rebalance the huge disparity in vaccination access between wealthy and lower and middle-income countries (LMICs)? In a recent ASIL Insight, commentators Mark Eccleston-Turner and Michelle Rourke suggest that the situation is more complicated than that. Members of the World Trade Organization must accede to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which provides for the waiving of such rights in exceptional circumstances. Article 66.2 of TRIPS also states that "developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base.” Eccleston-Turner and Rourke suggest that developed country Members of the WTO need to go beyond simply allowing the temporary waiving of IP rights. They also “need to provide a strong commitment to share know-how and/or provide economic incentives to pharmaceutical companies based within their territories to actively engage in transfer of technology for COVID-19 vaccines. Doing so would satisfy their Article 66 TRIPS obligations and demonstrate a clear commitment to fair and equitable vaccine access for LMICs.”
International law scholar René Provost has a new book that examines the engagement of non-state groups in justice processes. Rebel Courts: The Administration of Justice by Armed Groups (Oxford University Press 2021) came out of a research project that explored the possibility of convincing armed, non-state groups to apply justice by respecting minimum standards of international humanitarian law in conflict zones. According to Provost’s McGill University faculty page, "Warzones are sometimes described as lawless, but this is rarely the case. Armed insurgents often replace the state as the provider of law and justice in areas under their authority. Based on extensive fieldwork, Rebel Courts offers a compelling and unique insight into the judicial governance of armed groups, a phenomenon never studied comprehensively until now."