May 2022

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

Shawna Shapiro

"Linguistic Refoulement: Exploring the Intersection Between Language and Asylum" 

This month’s feature is a blogpost about the work of Language, Culture and Justice Hub member Katie Becker, who volunteers with Respond Crisis Translation. Becker recently graduated with a Master of Arts in Global Security and Borders from Queen’s University Belfast. Her master’s dissertation, (In)credible Fear: Linguistic Refoulement and Indigenous-Language Speakers at the U.S.-Mexico Border, was inspired by her work as a volunteer Spanish translator and interpreter with Respond. Becker also drew from her volunteer work with Respond’s partner organizations Al Otro Lado and Sanctuary for Families. Thanks to Respond Crisis Translation for permitting us to reprint this blogpost.

In her dissertation, Becker theorizes about the intersection between language and asylum, arguing that the United States asylum system is compromised by what she calls “linguistic refoulement.” She defines linguistic refoulement as returning someone to a dangerous situation when the return is attributable to a lack of language-access protections. “With this term,” Becker said, “I make reference to the principle of non-refoulement enshrined in international and U.S. law. In brief, non-refoulement forbids countries from returning refugees and asylum seekers to places where they are likely to face certain grave dangers. When the government sends someone back because of a language barrier, I call that linguistic refoulement.”

Becker investigated one group of people whom she identified as especially vulnerable to this type of refoulement in the United States asylum system: speakers of languages like Mam, K’iche’, and the hundreds of other Indigenous languages spoken in the Western Hemisphere. She concluded that the U.S. government disproportionately causes Indigenous people to return to dangerous situations because the government fails to meet their language needs.

The vast majority of Indigenous-language speakers seeking asylum are from Guatemala. Others come from Mexico (especially the southern states of Oaxaca and Chiapas), El Salvador, Honduras, Peru, Ecuador, and other countries in Central and South America. They are fleeing a variety of harms, including gangs, gender violence, religious persecution, anti-Indigenous discrimination, violence related to nonpayment of debts, retaliation for political activism, and expropriation of their lands by multinational corporations.

To better understand these asylum seekers’ experiences, Becker reviewed government language-access plans, analyzed official data, and interviewed language advocates and legal service providers.

“Taken together, these sources painted a very clear picture,” she said. “Many Indigenous-language speakers seeking asylum in the United States are not getting meaningful chances to present their claims.”
Becker explained, “Through MPP (Remain in Mexico) and Title 42 expulsions, the government forces people to wait in Mexico, even though Indigenous-language speakers face elevated threats there. Officials relentlessly pressure people to move forward with their cases in Spanish, perhaps erroneously thinking that Indigenous languages are ‘dialects’ of Spanish. Officials even accuse Indigenous people of ‘faking’ not speaking Spanish. Even when an asylum seeker insists on an interpreter, they may not get one. The government may give them an interpreter who speaks the wrong variant of their language. Indeed, the interpreter may speak the wrong language altogether. Asylum seekers sometimes lose their cases because translation issues cause adjudicators to find them ‘not credible.’ But anyone will look like they are lying if they receive only shoddy translation.

“And so the U.S. sends people back to situations where they face real harm. To add insult to injury, official records classify Indigenous-language speakers as ‘Hispanic/Latino’ throughout the process. Many Indigenous people would describe this as an inappropriate characterization. The data never really capture the fact that people are Indigenous and that they are entitled to distinct language-access services. It’s a travesty."

Becker continued, “It is critical to understand that this is a systemic failure. Indigenous migration is neither new nor surprising. But the United States has failed to invest in a pipeline of competent and appropriate interpreters. Incredible advocacy groups — including CIELO, the International Mayan League, and Vida Digna, among others — have stepped up to fill this gap and promote access to justice. Even so, the lack of real government support means that many, many Indigenous-language speakers never get to make their cases."

Read the remainder of the blogpost here.

People in the News

Beth van Schaack

Dr. Beth Van Schaack was recently sworn in as Ambassador-at-Large for Global Justice in the United States Office of Global Criminal Justice. Her role is to advise the Secretary of State and other State Department leaders on issues related to the prevention of and response to atrocity crimes, including war crimes, crimes against humanity, and genocide. Dr. Van Schaack is a scholar of human rights and international law and held a position at Stanford University before joining public service. She also served as the Academic Adviser to the United States interagency delegation to the International Criminal Court Review Conference in Kampala, Uganda. As the sixth Ambassador-at-Large, Dr. Van Schaack succeeds a number of prominent figures in the international legal field, including David Scheffer, Pierre-Richard Prosper, and Stephen Rapp.

ICC accused Ali Abd-Al Rahman

Photo Credit: ©ICC-CPI

After a delay of many years, the trial in The Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman ("Ali Kushayb") case has opened before the International Criminal Court. He stands accused of 31 counts of war crimes and crimes against humanity, allegedly committed during his leadership of the “Janjaweed” militia group that killed more than 200,000 people and displaced more than two million in Darfur, Sudan almost 20 years ago. Ali Kushayb’s lawyer claims that the Court has arrested the wrong man.

Watch a New York Times video in which the accused is presented with and then denies the charges against him. Listen to an Asymmetrical Haircut podcast where hosts Janet Anderson and Stephanie van den Berg discuss this historic trial, and their guest Emma DiNapoli explains the ongoing nature of the political dynamics in Darfur that gave rise to the violence. Indeed, in recent days violence has again erupted in the region, with Janjaweed militiamen apparently responsible for the attacks.
two blind Africans in a street

Photo Credit: ICRC

The war in Ukraine has brought renewed attention to the challenges experienced by the most vulnerable populations during hostilities.

A Lieber Institute commentary on war crimes against children notes that for the 1 in 6 children globally who live in conflict zones, “the effects of conflict are multiple, wide-ranging, and devastating. With an increase in asymmetric warfare globally, children are targets of horrific acts of violence, including killing, conscription, rape, sexual slavery, unlawful detention, abduction, disappearance, and torture. Millions of children every year are also killed and maimed in indiscriminate onslaughts against civilian populations and civilian objects. Schools and hospitals are too often illegitimately targeted.” Despite this reality, crimes against children are infrequently investigated and prosecuted.

Civilians with disabilities constitute another group which suffers particular hardship during armed conflict but too often remains invisible. A recent Humanitarian Law and Policy blogpost explores “how the complementarity between IHL and the UN Convention on the Rights of Persons with Disabilities can be used to increase the visibility of persons with disabilities within [international humanitarian law], and analyze[s] particular measures that can be taken in the conduct of hostilities to enable a more disability-inclusive implementation of the law of armed conflict.”

The United Kingdom’s plan to “outsource” to Rwanda the processing of refugees and asylum seekers wishing to reach its shores - and perhaps to relocate them there permanently - has created a tremendous backlash, as described in this Voice of America video (3.5 minutes). Archbishop of Canterbury Justin Wellby condemned this “subcontracting out of our responsibilities” in his Easter sermon, where he called the new policy “the opposite of the nature of God.” But Britain’s Home Secretary Priti Patel claims that sending refugees and asylum seekers 4,000 miles away to Rwanda will thwart the evils of people smuggling and circumvention of UK migration rules. A Guardian op-ed by Fiyaz Mughal contrasts this treatment of refugees with that of Ugandans of Asian descent in the 1970s who were quickly resettled in the UK when banished by dictator Idi Amin. Mugha's, as well as Patel’s, relatives were among this group. “In 50 years, our country has gone from resettling Ugandan Asian refugees within weeks and getting them into employment, to planning to send refugees 4,000 miles away to a Rwandan government that has a very questionable human rights record.”

Many British civil servants in the Home Office are against the policy on ethical and legal grounds, and it has been suggested that Patel may have a mutiny on her hands.
cans of Myanmar beer

Photo Credit:

Can beer drinkers make a political statement through their choice of beverage? The ruling military junta in Burma with links to Myanmar Beer is finding its brand shunned as a statement of protest against the government. As reported by Yahoo! News, “For years, Myanmar Beer dominated bars and supermarket shelves, its Japanese backing a sign of the economic liberalisation washing into the Southeast Asian country after the military relaxed its iron grip on power in 2011. But after the generals ousted Aung San Suu Kyi's civilian government in February last year, many turned their backs on the brew, along with a host of other goods made by companies linked to the armed forces, from soap to coffee.” Learn more about the boycott and views of Burmese beer drinkers in a video piece by Deutsche Welle. 

Developments in International Justice

Prosecutor Kharim Khan

Prosecutor Karim Khan announces the ICC will participate in the Joint Investigation Team

Should the “G-word” be used when referring to hostile acts committed by Russia in Ukraine? What does it mean when Russian actions are termed “genocide,” as asserted by US President Biden and the Estonian Parliament? International lawyers like Helen Duffy and Philippe Sands have found themselves in the position of presenting the technical parameters of the term to the larger public. They emphasize that there is a difference between the general understanding of genocide and its legal definition. As Sands notes, “[i]t is understandable that Mr. Biden spoke as he did; his use of the term ‘genocide’ was, at base, an expression of outrage and revulsion. And yet it is unclear whether he recognized the gap between popular conceptions of the word’s meaning — used as it often is as a synonym for mass murder — and its more limited legal definition.” Only a serious investigation will reveal whether alleged international crimes committed in Ukraine meet the legal threshold for genocide, the kind of inquiry that the International Criminal Court has now agreed to pursue in collaboration with Lithuania, Poland and Ukraine through a “Joint Investigation Team.”

bench of itlos

ITLOS bench

Photo Credit: ITLOS Photo

This year marks the 40th anniversary of the adoption of the United Nations Convention on the Law of the Sea (UNCLOS). This agreement is the constitutive document of the International Tribunal for the Law of the Sea (ITLOS), which was inaugurated in 1996. In celebratory remarks made before the UN General Assembly, it was noted that "UNCLOS continues to play a fundamental role in the development of international law, and in the promotion of peace, security, cooperation, friendly relations among all nations, and sustainable development of the ocean and sea." To mark the anniversary, the Netherlands Institute for the Law of the Sea and the Utrecht University Centre for Water, Oceans and Sustainability Law are organizing a workshop on 4-5 May 2022 around the theme “The United Nations Convention on the law of the sea at forty: the contribution of the judiciary and judicial jurisdiction.” Learn more about the event and register to attend remotely at this link.
map of territorial line in sea between Nicaragua and Colombia

Photo Credit: ICJ

The International Court of Justice (ICJ) has ruled that Colombia breached Nicaragua's rights in waters of the Caribbean Sea, including by hindering Nicaraguan fishing vessels and granting fishing permits for Colombian and other boats. The case, Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), was initiated in 2013. ICJ judges voted 10-5 to establish that Colombia infringed Nicaragua's rights “by interfering with fishing and marine scientific research activities” of Nicaraguan or Nicaraguan-licensed vessels and with naval activities “and by purporting to enforce conservation measures” in Nicaragua's waters. The Court ruled that Colombia should immediately cease its conduct.

This case is a follow-up to the Territorial and Maritime Dispute (Nicaragua v. Colombia) case, initiated in 2002 and ending with a 2012 ICJ judgment. A Reuters article explains that the earlier judgment reduced the expanse of sea belonging to Colombia. “The new sea borders increased Nicaragua's continental shelf and economic exclusion zone in the Caribbean, giving it access to underwater oil and gas deposits, as well as fishing rights in those waters.” However, sovereignty over the San Andrés Islands remained with Colombia and the recent ICJ judgment has recognized the fishing rights of those islands’ residents, a great concern for that community of Afro-Caribbean descent.

Logo Raoul Wallenberg Institute
Recent news and commentary highlight the interrelation of climate change and environmental concerns with human rights.

Dr. Matthew Scott of the University of Lund’s Raoul Wallenberg Institute (RWI) contributed a post to the RWI’s blog, Human Righter. Entitled “How the New IPCC Report Addresses Migration and Human Rights”, Scott provides a helpful analysis of how the report serves to raise awareness of the connection between human mobility and climate change, and to support calls for increased policy attention at international, regional, and national levels. A short video from the United Nations High Commission on Refugees about human rights and forced displacement shows some powerful images of the kinds of climate disasters that exacerbate the existing vulnerabilities of populations around the world.

The Grantham Research Institute on Climate Change and the Environment (London School of Economics and Political Science) recently published a commentary on climate-related litigation using human rights principles. Authors Annalisa Savaresi and Joana Setzer have identified more than 100 climate cases that rely on human rights arguments to promote action on climate change. These lawsuits argue that states or corporations have substantive obligations of either a positive or negative nature. Less frequently, lawsuits are based on procedural rights. Savaresi and Setzer have also explored what they call “just transition cases,” which they define as “cases that rely in whole or in part on human rights arguments to question the distribution of the benefits and burdens of the transition away from fossil fuels and towards net-zero emissions.” They refer to this analysis as “mapping the whole of the moon.” Their commentary concludes: “As both climate legislation and litigation mature, an increasing number of rights-based litigation cases will focus on the enforcement of extant climate legislation and on the protection of procedural rights. Future human rights law and remedies will continue to be used to propel the energy transition away from fossil fuels, while also protecting those most affected by it. There is a need to explore the new frontier of just transition litigation to better understand how governments and corporations can address climate change and deliver net-zero emissions, and enact an energy transition that is inclusive and in line with human rights.”

A recent article from Inside Climate News sheds light on the phenomenon of “fortress conservation” and what may be its unintended impacts on human rights. The piece describes abuses carried out against the Indigenous Batwa population in the Democratic Republic of the Congo in the name of preserving the habitat for gorillas (and the tourist income it brings). The Kahuzi-Biega National Park, a UNESCO world heritage site, is located in the ancestral territory of the Batwa people. In an investigative report, the organization Minority Rights Group International describes how some conservation parks have become “militarized” as governments around the world seek to increase protected areas to fight climate change and biodiversity loss. “Many of the areas targeted for conservation are inhabited by Indigenous and other local communities who have been forced off their land, and even killed, in connection with conservation efforts in the parks.”

Indigenous Maasai pastoralists in Tanzania are facing a similar threat, and they have appealed to the governments of the UK, US and EU for help in stopping their removal from ancestral land. The Guardian reports, “[m]ore than 150,000 Maasai people face eviction by the Tanzanian government due to moves by the UN cultural agency UNESCO and a safari company to use the land for conservation and commercial hunting.”

In contrast to these actions, the most effective way to improve conservation outcomes is to respect the rights of Indigenous peoples, claims former UN special rapporteur on human rights and the environment John Knox.
logo for Inter-American Commission on Human Rights
On the recent occasion of Earth Day, the Inter-American Commission on Human Rights (IACHR) and the UN Office of the High Commissioner for Human Rights (OHCHR) called on States to respect and protect defenders of the environment, land, and territory, and called on businesses to respect human rights in all their activities. In a press release, the Commission noted that “[d]efenders play a crucial role in the protection of human rights and the environment. However, they—particularly women and peasant, indigenous, and Afro-descendant leaders and their communities—continue to face persistent violations of their rights. The IACHR, the OHCHR, and the Special Rapporteurship on Economic, Social, Cultural, and Environmental Rights note that these risks are particularly high when defenders express their concern about the impact of certain business activities on land and territory.”

Publications and Resources of Interest

The Kalshoven-Gieskes Forum on International Humanitarian Law, in collaboration with the Grotius Centre for International Legal Studies at Leiden University, recently issued the "Leiden Guidelines on Digitally Derived Evidence" after three years of research and analysis. The Introduction lays out the need for such guidance. “Digitally Derived Evidence (DDE) is increasingly used in international criminal courts and tribunals to prosecute perpetrators of international crimes. Advanced digital tools, including aerial photography, mobile devices, video, intercepted communications, amongst others, capture new and vast quantities of data, which can add supplementary and supporting data to existing evidence… Given the proliferation of digitally derived evidence and increasing reliance upon it for prosecutions, there is every possibility that digital evidence may become the primary evidence upon which some convictions are based. The use of DDE raises numerous challenges and legal questions and as such these Guidelines have been created to address the legal lacuna by examining the different evidentiary standards relating to DDE before the international criminal courts and tribunals.” Access the full "Leiden Guidelines" at this link.logo for digitally derived evidence

book cover for Language of Conflict

How is the conflict between Russia and Ukraine expressed through language? What kinds of metaphors, neologisms and creative language have commentators used when they write about the conflict, which began in 2014? Read an interview (from CaMP Anthropology) with language scholar Natalia Knoblock, editor of the collection Language of Conflict: Discourses of the Ukrainian Conflict (Bloomsbury 2020). Knoblock notes that the inspiration for this study “came from speakers of the Russian and Ukrainian languages as they were destroying each other on social networks.” Among the challenges associated with editing the disparate chapters – whose contributors hail from Ukraine, Russia and beyond – was the need to maintain a neutral tone. “Because the topic is so painful, it is not easy to write about. People should never take it lightly when they write about a country torn by war. And I feel that it was important to keep politics as far away as possible. We couldn’t leave it out completely, but my goal was to keep the volume professional and language-focused as much as possible. Linguists are people, and they have opinions, obviously.”

In recent days, it has been reported that Ukraine's "linguistic landscape" is being transformed, with Russian street names replaced by Ukrainian ones in a move to shake off Ukraine's "colonial heritage."

woman holding passport with Ukrainian language

Photo Credit: Enrico Mattia Del Punta/NurPhoto via Getty Images

And what's up with saying "Ukraine" vs. "The Ukraine" in English? Linguistic anthropologist Kathryn E Graber explains in The Conversation that this distinction is based in Russian grammar and that one's choice conveys "[n]othing less than the political sovereignty of Ukraine."
cover of Goodale's book
A recently published book by anthropologist Mark Goodale makes the case for a new vision of human rights as a basis for collective action and moral renewal. Reinventing Human Rights (Stanford University Press 2022) proposes “that only a radically reformulated approach to human rights will prove adequate to confront and overcome the most consequential global problems.” The publisher describes Goodale’s approach like this: “Rather than a priori claims to universality, he calls for a working theory of human rights defined by 'translocality,' a conceptual and ethical grounding that invites people to form alliances beyond established boundaries of community, nation, race, or religious identity.”