October 2021

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

'Supporting two-way communication with police in Western Australia: new translation app helps to identify need for Aboriginal interpreters'

Alex BowenBy Alex Bowen, Linguist and Trainer, Aboriginal Interpreting Western Australia; PhD Student, University of Melbourne

Aboriginal Interpreting Western Australia (AIWA) recently worked with the Western Australia Police Force to develop an app which could signal a new direction in communication with Aboriginal people who are arrested. The app, which police have on their phones, delivers information about rights in custody in WA Aboriginal languages and in ‘plain English'.

AIWA provides interpreters in WA Aboriginal languages, including ‘traditional’ languages [1] and varieties of Kriol. AIWA is a self-determined organisation governed by Aboriginal people and born out of the need for meaningful two-way interactions in health and justice. [2] Interactions with police can have serious consequences for Aboriginal people. [3]

map of part of Western Australia with language names on different regions

This project was originally about producing a poster, then it became a ‘talking’ poster, and finally an app with recordings. This is an example of how intercultural translation is rarely straightforward and sometimes we completely reconsider what form will be most effective.

We also work in ‘plain English’ to unpack information for Aboriginal audiences, before translating it.

For example, the first line of the recording is ‘The Police think that maybe you broke the government law.’ [4] This might seem obvious when police arrest someone. But longstanding miscommunication about the Australian legal system means we need to make more context explicit and explain information in careful steps. We refer to ‘government law’ to distinguish it from Aboriginal laws, which are fundamental for many Aboriginal people but routinely ignored by the mainstream legal system.

screenshot of the appThis ‘plain English’ unpacking was checked with police (who retain responsibility for the message), interpreters (who know the audience) [5] and an Aboriginal mental health expert.

But even the best translation of information is not enough. Good communication is also about relationships. Playing a recording about police custody in a language someone understands [6] does not dispel the power dynamic and guarantee that everyone will be comfortable and empowered to communicate.

In the past, Aboriginal languages have often been invisible, and suppressed. Putting them front and centre in this app might show that police are working to communicate with Aboriginal people on their own terms.

Of course, the app is not a replacement for working with interpreters. It helps police to identify someone’s strongest language. It has AIWA on speed dial so police can book an interpreter in that language. This is how two-way communication can happen.

We hope the app will be used and improved, and be part of cultural change in police interactions with Aboriginal people.

People in the News

John G. Ruggie

John G. Ruggie, who was architect of the 2011 United Nations Guiding Principles on Business and Human Rights, has died. The Principles laid out in clear language that not only states but also corporations have the responsibility to safeguard human rights, using a “protect, respect and remedy” framework. In a tribute by the United Nations Office of the High Commissioner for Human Rights, Ruggie’s contributions are described like this: “As the first Special Representative of the Secretary-General on Business and Human Rights, Ruggie travelled the world, engaging stakeholders from all walks of life, researching and advocating for new ways of thinking and working to prevent and mitigate human rights risks related to business. For Ruggie, it was essential that societies were able to identify, manage and, as far as possible, prevent adverse effects of business practices on people's lives. The UN Guiding Principles on Business and Human Rights were his response; his blueprint for how things should – and could – be.” Read more about Ruggie at his Harvard University webpage.

Deb Haaland

Secretary of the Interior Deb Haaland

Demands that more attention be paid to cases of missing Indigenous women in the United States have increased in the wake of the publicity maelstrom around Gabby Petito. The disappearance of this young white woman, whose murdered body was eventually found in the state of Wyoming, was followed intensely in both conventional and social media. This strikes a stark contrast to what happens when an Indigenous person goes missing or is murdered. The Guardian reports, “researchers found that between 2011 and September 2020, 710 Indigenous people were reported missing across Wyoming, and that between 2000 and 2020, Indigenous homicide victims accounted for 21% of all homicides, though they make up only 3% of the state’s population.” The article added that the US justice department has reported that Native women, in particular, were murdered at more than 10 times the national average. Yet their cases are “overlooked or even outright ignored.” Deb Haaland, the first Indigenous US Secretary of the Interior, has already created a new unit that will pursue justice for missing and murdered American Indians and Alaska Natives. She noted that the Petito case is a reminder of hundreds of missing and murdered Native girls and women in the US.

Karim Khan

Prosecutor Khan

The International Criminal Court’s third prosecutor Karim Khan, on the job since June 2021, has already started to be evaluated on his performance. Former international prosecutor and South African judge Richard Goldstone – longtime co-director of the now concluded Brandeis Institute for International Judges – approves of his actions so far. In a recent Just Security commentary, Goldstone asserts that Khan has found a good solution to a structural problem in the Office of the Prosecutor (OTP): “The prosecution pillars will divide investigations and trials between [two] deputy prosecutors considering caseload, geographic, linguistic, and other factors where applicable.” Goldstone goes on to describe the ways in which Khan has integrated recommendations from the 2019 report of the Independent Expert Review of the ICC, which Goldstone chaired.

But not all international justice observers are so pleased. Mark Kersten notes in a tweet, for example, that Khan is “de-prioritizing well-documented allegations of war crimes by US armed forces (& Afghan forces)” in order to prioritize “new crimes committed by #ISIS-K in Afghanistan, a group never cited in opening investigation.” Khan thus seems to be bending under the pressure of geopolitics as others have before him.

On another note, Khan has appointed a star-studded group of special advisers for the OTP, including the likes of Amal Clooney, Adama Dieng, Kevin Jon Heller, Leila Sadat, Patricia Sellers and Christine Van den Wyngaert.

The European Court of Human Rights (ECtHR), which issues numerous judgments without the general public ever noticing, recently hit the media jackpot in Carter v Russia. The case concerned the 2006 murder of the applicant’s husband, Aleksandr Litvinenko, in the United Kingdom. Mr. Litvinenko had worked for the Russian security services before defecting to the UK where he was granted asylum. He subsequently became involved in exposing corruption and links to organized crime in the Russian intelligence services. In 2006 he was fatally poisoned in London with polonium 210, a radioactive substance, that was placed in his tea by two Russian men. The ECtHR found that there was a strong presumption that, in poisoning Mr. Litvinenko, the assassins had been acting as agents of the Russian State. The Court noted that the Russian Government had failed to provide any other satisfactory and convincing explanation of the events or counter the findings of the UK inquiry around Mr. Litvinenko’s death, completed in 2016. The Kremlin has rejected the Court’s findings. Read more about the case from Reuters, just one of the mainstream media outlets to report on this ECtHR judgment.

screenshot of youtube video with two women and one child standing in front of a large rock with the words "We can't solve the climate crisis without defenders"

The most recent annual report of Global Witness, which since 2012 has been gathering data on killings of land and environmental defenders, considers 2020 the most lethal year to date with an estimated 227 defenders killed. The report cites evidence suggesting that “as the climate crisis intensifies, violence against those protecting their land and our planet also increases. It has become clear that the unaccountable exploitation and greed driving the climate crisis is also driving violence against land and environmental defenders… [T]hese lethal attacks are taking place in the context of a wider range of threats against defenders including intimidation, surveillance, sexual violence, and criminalisation.” Watch a short YouTube video on the report.

Developments in International Justice

ICJ building

In a set of countervailing applications, the Republic of Armenia and the Republic of Azerbaijan are bringing one another before the International Court of Justice (ICJ), each alleging that the other has violated the Convention on the Elimination of All Forms of Racial Discrimination (CERD).

On 16 September, Armenia instituted proceedings in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan). Armenia’s application claims that “[f]or decades, Azerbaijan has subjected Armenians to racial discrimination. Anti-Armenian hate is formal State policy, taught in schools and regularly espoused at the highest levels of government, with Azerbaijan’s President Ilham Aliyev himself leading the way.”

On 23 September, Azerbaijan instituted proceedings with a converse claim in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia). Its application asserts that Armenia pursues a policy of ethnic cleansing and systematic violations of CERD, explaining such actions as “fueled by an ethno-nationalist movement to create a mono-ethnic State comprised exclusively of ethnic Armenians in Armenia and in portions of Azerbaijan’s sovereign territory.”

In EVN Report, commentator Gabriel Armas-Cardona, Esq. explains that CERD is a treaty that makes it particularly easy for states to turn to the ICJ for dispute settlement. As members of the Council of Europe, both states have also already brought cases around the 2020 Nagorno-Karabakh conflict before the European Court of Human Rights. Armas-Cardona notes that the European Court “notably releas[ed] pairs of cases simultaneously to present a perception of equality to both states (see Chiragov and Others v. Armenia and Sargsyan v. Azerbaijan).”

banner that reads "Dialogo de las Americas: Sobre Libertad de Expersion en Internet"

The Special Rapporteur for Freedom of Expression at the Inter-American Commission on Human Rights has launched a new platform - Dialogue of the Americas on Freedom of Expression. The impetus for creating the Dialogue is explained like this: “The Dialogue arises as a response to the challenges faced by freedom of expression on the internet. Recognizing that the region is at a turning point that requires greater attention to the impact of technologies and their management on human rights, the Office of the Special Rapporteur for Freedom of Expression is hosting a multisectoral dialogue on three initial topics: the deterioration of the public debate, online content moderation and digital literacy for the development of civic skills.” Each topic provides a discussion forum with changing questions, reports for monitoring and analysis, a “knowledge hub” with relevant resources, and video interviews. Users may participate in the Dialogue in Spanish, Portuguese and English.

KSC logo - scales

The first trial of the Kosovo Specialist Chambers (KSC), Prosecutor v. Salih Mustafa (KSC-BC-2020-05), is now underway. The KSC is a criminal court with a mandate to try certain crimes allegedly committed during and after the conflict in Kosovo, between 1 January 1998 and 31 December 2000, including war crimes and crimes against humanity. The court was established under Kosovo law but it is located in The Hague, and staffed by nationals of the European Union and five other contributing states.

Mustafa is indicted on the basis of individual criminal responsibility and superior criminal responsibility with crimes committed by certain Kosovo Liberation Army members against persons detained at the Zllash detention compound. He is charged on four counts of war crimes: arbitrary detention, cruel treatment, torture, and murder.

Watch the opening arguments in Mustafa’s trial, held on 15 September, on YouTube. Follow updates on Mustafa’s trial on the KSC website.

Crimes Against Humanity logo - dove, knife, graphic of person behind barbed wire, document

Should there be a global treaty on crimes against humanity? There has been substantial debate about this issue since 2010, when the proposal of such a convention was published as part of the Crimes Against Humanity Initiative, based at Washington University in St. Louis. In October 2021, the question of creating a convention on crimes against humanity, along the lines of the Geneva Conventions (on war crimes) and the Genocide Convention, will once again be taken up by the United Nations’ Sixth Committee, which considers legal issues. In preparation for this milestone, Just Security has published a series of commentaries on the proposed convention by leading legal scholars and practitioners. Topics in the series include the relation of a convention on crimes against humanity to the International Criminal Court’s Rome Treaty; why there currently exists no convention on crimes against humanity; and the challenges in defining crimes against humanity.

Who should be able to access the deep seabed and for which purposes? How can it best be protected? The agreement reached recently between the South Pacific island state of Nauru and the Canadian firm The Metals Company has foregrounded these and related questions. The risks in exploiting the deep seabed – our “global commons” – are enormous, according to The Guardian. “Oversight is almost impossible. Regulators admit humanity knows more about deep space than the deep ocean. The technology is unproven. Scientists are not even sure what lives in those profound ecosystems. State governments have yet to agree on a rulebook on how deep oceans can be exploited. No national ballot has ever included a vote on excavating the seabed.”

The need to regulate deep seabed activity is more important now than ever with manufacturers of sustainable technology eyeing this little-known terrain as a source of critical resources. Electric vehicles are one of the products, for example, that require minerals such as nickel, copper, manganese and cobalt for their batteries, all of which can be found in nodules at the bottom of the sea. The Guardian reports that although the electrification of vehicles is a pathway to carbon emission reduction, deep sea mining companies are creating a “false narrative” that the ocean must be mined in order to meet renewable energy’s demand for metals.

ISA logo Many may not be aware that an international agency charged with oversight of this vast territory has existed since 1982. The International Seabed Authority is mandated under the UN Convention on the Law of the Sea (UNCLOS) to organize, regulate and control all mineral-related activities in the international seabed area for the benefit of mankind as a whole. Not every nation has ratified UNCLOS, however, the United States being a notable outlier.

Publications and Resources of Interest

book cover Legal Fictions in International Law

Two recently published books offer unique perspectives on the international legal system.

Legal Fictions in International Law (Edward Elgar 2021), by Cardiff University scholar Reece Lewis, explores the inevitable manifestation of such fictions in the international sphere and develops a theory of their effectiveness and legitimacy. The publisher’s site notes, “[t]he book considers the implications of the phenomenon, showing that while some international legal fictions are problematic, others can assist the application of international law through maintaining a coherent, stable and peaceful international legal order. The author identifies and critically analyses a host of international legal fictions and explores, in detail, the factors that determine their effectiveness.”

book cover To the Uttermost Ends of the EarthWell-known legal scholar and former diplomat Martti Koskenniemi tells the story of how the international legal order developed over many centuries. In To the Uttermost Parts of the Earth: Legal Imagination and International Power 1300-1870 (Cambridge University Press 2021), Koskenniemi discusses “how European statehood arose during early modernity as a locally specific combination of ideas about sovereign power and property rights, and how those ideas expanded to structure the formation of European empires and consolidate modern international relations. By connecting the development of legal thinking with the history of political thought and by showing the gradual rise of economic analysis into predominance, the author argues that legal ideas from different European legal systems – Spanish, French, English and German – have played a prominent role in the history of global power.”

screenshot of Assymetrical Haircuts episode with the words "Episode 49 - Iranian Crimes, Swedish Justice with Aida Samani and Gissou Nia

A new episode of the international justice podcast series Asymmetrical Haircuts digs into the ongoing trial in a Swedish court of an Iranian national on war crimes charges. In “Iranian Crimes, Swedish Justice”, legal experts Aida Samani and Gissou Nia discuss this universal jurisdiction case and its implications for citizens of Iran and members of its diaspora.

banner that says International Day for People of African Descent 31 August

The Inter-American Commission on Human Rights (IACHR) and its Special Rapporteur on Economic, Social, Cultural and Environmental Rights recently released a thematic report on these rights in regard to persons of African descent. In an IACHR press release, the Commission acknowledges that the report is “a reparatory form of invoking the collective memory of Afro-descendants in the region, recognizing their social struggles and historical legacy, as well as bringing light to the different human rights violations as a form of reparation. This recognition allows the IACHR to fulfill its mandate to stimulate, systematize, strengthen and consolidate respect for the rights of persons of African descent in the region in accordance with its mandate, and the Decade Plan of Action for Persons of African Descent in the Americas (2016-2025) of the Organization of American States (OAS).”

Significantly, the report was published on the first ever celebration of the International Day for Persons of African Descent, 31 August 2021.

How do children view war and mass violence? A recently concluded art exhibition in Marseille, entitled "Déflagrations", highlighted the visions and understandings of children who have had the misfortune to experience these phenomena. JusticeInfo, which describes the exhibition and provides a slide show of some of its arresting works, observes that the images are "free from the filter of adult judgment" and "seem to wipe away the hierarchy of wars and of time." The exhibition catalogue can be purchased at this link.

drawing by a 15 year old refugee Eritrean boy in a migrant detention center in Libya, October 2019. "From Ethiopia where his family had fled, he set out for Europe at 12 years old, after his father ded, according to the medical team of Medecins sans Frontieres. "After arriving in Liya in 2017, he was sold to human traffickers and spent two years in secret prisons. After being freed, he tried to cross the Mediterranean in summer 2019. Their boat capsized. More than 130 people died. He saw many of them drown before his eyes, including a father holding his two children against him." Source: Medecins sans frontieres/Deflagrations. And a drawing of people sinking in their ships