September 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

"Interpretation at the Asylum Office"

hillary mellingerThis month’s feature is contributed by LCJ Hub member Hillary Mellinger, an Assistant Professorof Criminal Justice and Criminology at Washington State University. Hillary’s research focuses on language access within the U.S. immigration and criminal justice systems, the challenges that asylum applicants and attorneys encounter at the U.S. Asylum Office, and the criminalization of migration.  Prior to earning her doctorate, she worked as a Board of Immigration Appeals (BIA) Accredited Representative at the Tahirih Justice Center, a national nonprofit organization that supports immigrant women and girls fleeing gender-based violence through a combination of legal representation, social services and public policy. 

In a recently published, open-access article, I describe the challenges that asylum applicants and attorneys encounter regarding interpretation at the Asylum Office.  Whereas U.S. immigration courts are required to provide interpreters pursuant to the Court Interpreters Act of 1978 (28 U.S.C. § 1827), the Asylum Office is beholden to a different legal statute, one that requires asylum applicants to procure their own interpreters at no expense to the government (8 C.R.F. § 208.9(g), barring exceptions for sign language, unaccompanied children, or other exceptional circumstances (see, e.g., the Affirmative Asylum Procedures Manual of 2016 and the 2019 Language Access Plan of the U.S. Department of Homeland Security).  In 2000, President Bill Clinton signed Executive Order 13166, which required federal agencies to provide language services to individuals with limited English proficiency. 

In my article, I describe how the Asylum Office balances the competing mandates of federal regulations (which require asylum applicants to provide their own interpreters, with only a few exceptions) with EO 13166 (which requires the Asylum Office to provide language services).  I focus on three research questions: When do asylum officers exercise their discretion to provide interpreters? Is this discretion exercised in a uniform way? Does the presence of an interpreter affect the dynamics of the asylum interview, and if so, how?

logo of us immigrationTo answer these questions, I analyzed empirical, qualitative data that I collected from 28 interviews with U.S. immigration attorneys who represented asylum applicants before two of the eight regional U.S. Asylum Offices: the Arlington Asylum Office and the Houston Asylum Office.  I selected these offices because they were associated with relatively high asylum grants rates and comparatively low asylum grant rates, respectively.  As I explain in my article, the U.S. Asylum Office does not collect data on its provision of language services, thereby rendering it impossible to conduct a mixed-methods or solely quantitative study.

My research had four findings. First, interviewees stated that unaccompanied children were more likely than adults to be provided with interpreters. Second, interviewees reported that adults were only provided with interpreters in rare, “extraordinary circumstances.” Third, interviewees related that bilingual asylum officers would sometimes offer to conduct asylum interviews in a language other than English, although asylum applicants were not provided with advance notice of this possibility.  Fourth, 17 interviewees expressed concern that interpreters negatively affected the dynamics of asylum interviews by exacerbating language barriers.

I situate these findings within sociolegal literature on the “law-on-the-books” versus the “law-in-action”, which refers to the disparate ways in which the written, black-and-white text of the law is implemented in everyday life.  I also place my findings within the broader scholarship on intersectionality, language access within the U.S. immigration system, and the possible unintended consequences of interpretation on asylum case outcomes.

Importantly, my study was conducted prior to the COVID-19 pandemic.  However, since September 23, 2020, the Asylum Office has operated under a temporary rule in which it provides telephonic interpreters for 47 languages. Asylum applicants who do not speak one of these 47 languages, or who prefer to speak another language, must provide their own interpreters.  This temporary rule is set to expire on March 16, 2023. Since my study analyzes data collected prior to this temporary rule, my findings cannot speak to how the pandemic has changed the nature of language access at the Asylum Office.

People in the News

English heritage plaque

A towering figure in international law, Hersch Lauterpacht, is soon to be recognized by English Heritage, a charitable organization that manages over 400 historic monuments, buildings and places in England. Born in 1897 near Lviv, in western Ukraine. Sir Hersch Lauterpacht QC devised the concept of crimes against humanity. In 1945, while a professor of international law at Cambridge University, he played a key role in the first trial of Nazi war criminals at Nuremberg. From 1955 to 1960, the year Lauterpacht died, he served as a judge at the International Court of Justice. English Heritage will soon place one of their iconic blue historical plaques at Lauterpacht’s longtime residence in northwest London. 

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The International Bar Association (IBA) and Ukrainian Bar Association recently collaborated on a seminar aimed at Ukrainian lawyers tasked with defending Russian war crime defendants. According to the IBA, the online event provided “an overview of the basic tenets of international criminal defence work in Ukrainian courts, notably relating to the representation of individuals accused of war crimes and other international criminal law violations.” The seminar further covered “the key differences between the prosecution of domestic and international crimes; the role of the defence lawyer; advocating for a client’s innocence in the face of national opposition; ensuring a fair trial; and grounds for excluding criminal responsibility.” High profile international lawyers Peter Robinson and David Hooper were among the participants. Watch the online event on YouTube.

pride flag

Photo Credit: Angela Weiss/AFP/Getty Images

A recent ruling of the High Court of Justice of the Eastern Caribbean Supreme Court has held that colonial-era laws in Antigua and Barbuda criminalizing sexual activity among LGBTI persons are unconstitutional. The Inter-American Commission of Human Rights notes that this historic decision – which used a human rights approach analyzing international jurisprudence, including Inter-American standards – finds that offences known as “buggery” and “serious indecency” are unconstitutional as they violate the rights of persons with legal capacity to consent to sexual activity. In particular, “the Court found violations to the rights to liberty, protection of the law, freedom of expression, protection of personal privacy and protection for discrimination on the basis of sex.” A number of Caribbean nations still retain these outdated laws although the list of those abolishing them is growing. Read more about the decision from Global Voices

Prof. Adjei
Professor Dennis Dominic Adjei, a national of Ghana, has been sworn in as a new Judge of the African Court on Human and Peoples’ Rights for a term of six years.  Hon. Justice Ntyam Ondo Mengue from Cameroon has been re-elected for a second and final term of six years. The Court is composed of eleven Judges, nationals of Member States of the African Union elected in their individual capacity. The Court meets four times a year in Ordinary Sessions and may hold Extra-Ordinary Sessions.
African immigrants on raft

Photo Credit: Frontex

The well-being of children will be enhanced by two recent legal developments in Europe. 

The European Court of Human Rights (ECtHR) determined, in Darboe and Camara v. Italy , that the rights of unaccompanied minors seeking asylum in Italy had been violated by their being placed in an adult migrant center and subjected to an age-assessment procedure. The applicants, Ousainou Darboe (Gambia) and Moussa Camara (Guinea), arrived on a makeshift vessel to the shores of Italy in 2016. The Court found that Italy subsequently breached their rights, as guaranteed under the European Convention of Human Rights, to private and family life (Article 8), to an effective remedy (Article 13), and to the prohibition of inhuman or degrading treatment (Article 3). According to an ECtHR press release, “[t]he Court pointed out in particular its well-established case-law that the difficulties deriving from the increased inflow of migrants and asylum-seekers, in particular for States which form the external borders of the European Union, did not exonerate member States of the Council of Europe from their obligations under Article 3.”

As for children already living in Europe, the European Commission reports  that there are 140,000 international divorces per year in the European Union and around 1,800 cases of parental child abduction within the EU every year. The Brussels IIb regulation , which recently came into effect, aims to provide more efficient rules and expedite procedures to further the best interests of children in such situations. In particular, the new rules shorten the length of court proceedings, reduce costs, introduce a right for children to be heard, and improve cooperation between member states’ authorities and enforcement of decisions in other member states. It provides only jurisdictional rules; substantive law matters are subject to other EU and international law instruments.

Developments in International Justice

Youth holding Healthy Environment banner in front of Int Court of Justice

Photo Credit: © Marten van Dijl / Greenpeace

The United Nations General Assembly has declared that access to a clean, healthy and sustainable environment is a universal human right. An overwhelming majority of member states voted in favor of this resolution, which was first put forward by the UN Human Rights Council in 2021. No states countered the resolution, although eight countries abstained from voting , arguing that such a right can only be recognized as legally enforceable through international treaties. UN Secretary-General, António Guterres noted that the historic decision is critical in “the collective fight against the triple planetary crisis of climate change, biodiversity loss and pollution.” The global organization Greenpeace also welcomed the resolution but observed that it was a long time in coming, following “more than a decade of activism and advocacy by professionals, communities and environmental justice movements all over the world.” Greenpeace believes ongoing environmental litigation in diverse regions of the world may benefit from this new resolution.

logo of Council of Europe

A convention that recently entered into force strengthens the protections surrounding cultural property. The Council of Europe Convention on Offences relating to Cultural Property, otherwise known as the “Nicosia Convention”, is the only international treaty specifically dealing with the criminalization of the illicit trafficking of cultural property. As explained in an ASIL Insight, “[w]hile there are numerous international instruments for the protection of cultural property, the Nicosia Convention is the first treaty open to any country that specifically treats common cultural heritage of humanity through a criminal law perspective, bridging the gaps in the existing international legal framework. The protection of cultural property is accomplished through criminalization of the unauthorized taking and sale of cultural property (Articles 3-11), the identification of proportionate, effective, and dissuasive sanctions when criminal offenses are committed (Article 14), as well as cooperation between national authorities to facilitate the consultation and exchange of information pertaining to cultural property that has been subject to an offence (Articles 19 and 21).” Read the full convention, which includes a description of what counts as cultural property.

Group of Ogiek in front of African Court

After years of struggles, successes and subsequent setbacks, the Ogiek people of Kenya have been granted a decisive victory – a ruling that the Kenyan government must compensate them for being evicted from their ancestral Mau Forest. In 2017, the African Court of Human and Peoples’ Rights (ACtHPR) issued a judgment detailing how the Kenyan government had violated Ogiek rights to life, property, natural resources, development, religion and culture, and calling on the authorities to recognize Ogiek access to and control over their forest. After failing to comply meaningfully with this ruling, the Kenyan government has now been directed by the ACtHPR, in a June 2022 judgment, to pay reparations to the Ogiek population of 157,850,000 Kenyan shillings, the equivalent of $1.33 million U.S. dollars, as compensation for material and moral losses. While many feel that this sum is not nearly enough, others believe that it represents an important step toward justice. Read more from the American Jewish World Service, an organization that has assisted the Ogiek people in their fight for recognition and justice.

interior of ICJ

The International Court of Justice (ICJ) recently rejected Myanmar’s preliminary objections to the case brought against it by The Gambia under the international Genocide Convention. The Gambia v. Myanmar case concerns Myanmar’s alleged genocide against the ethnic Rohingya population in Rakhine State, with a focus on military operations launched in October 2016 and August 2017. Since that time, further crimes against humanity against the Rohingya have been documented and the country has also undergone a coup d’etat with a subsequent return to military rule

In the preliminary objections phase of the case, Myanmar argued that The Gambia lacked standing to bring the case and that the ICJ lacked jurisdiction over the matter for several different reasons. ICJ judges rejected three of the preliminary objections raised by Myanmar unanimously and the remaining one garnered only a single dissent. The case can now proceed to the merits phase. Read more about the judgment in a commentary by international lawyer Priya Pillai in Opinio Juris.

premises of the ICJ

Photo Credit: ICJ

In another ICJ case involving the Genocide Convention, the United Kingdom has applied to intervene in the Ukraine v Russian Federation case (Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide). A Court press release notes that the UK relies on its status as a party to the Genocide Convention and emphasizes that “[t]he Court has found that the provisions of the Convention impose erga omnes partes obligations on Contracting Parties . . . and that the prohibition against genocide is a jus cogens norm in international law”. In accordance with Article 83 of the Rules of the Court, Ukraine and the Russian Federation have been invited to furnish written observations on the United Kingdom’s declaration of intervention. Read more abut the intervention from The Jurist.
cover to draft legislation
Alongside the ICJ case, other judicial responses to the war in Ukraine are underway. The International Criminal Court (ICC) has opened an investigation and will likely prosecute a handful of high-level perpetrators of atrocity crimes committed in Ukraine. But what will happen to the other perpetrators of crimes in Ukraine, who will more than likely need to be prosecuted at the domestic level? The Public International Law Policy Group (PILPG) has taken steps to fill this gap. “To facilitate fair and effective accountability for the atrocity crimes committed in Ukraine, PILPG, together with Weil Gotshal & Manges and jurists and legal experts from Ukraine, prepared draft legislation for a High War Crimes Court for Ukraine to prosecute atrocity crimes. Drawn from the Law on the High Anti-Corruption Court of Ukraine of 2019 and best practices of internationalized domestic war crimes courts around the globe, this draft Law provides the template for a Ukrainian High War Crimes Court to prosecute atrocity crimes committed in Ukraine since November 2013.” Watch an expert roundtable with a presentation of the draft legislation at this link
20th anniversary logoThe 20th anniversary of the ICC, celebrated in July 2022, proved an occasion for the expression of a wide range of views on its successes, failures and opportunities. Amnesty International declared that double standards have no place in international justice, noting that several recent ICC decisions and practices appear to demonstrate “selective justice” and a willingness to be influenced by powerful states. James Goldston of the Open Society Initiative observes that the Russian invasion of Ukraine has refocused the international community’s attention on the possibilities of international criminal justice. He warns, however, that “[i]f the pursuit of international justice for grave crimes is to succeed, the core elements of the world’s response to Ukraine — an enhanced ICC, a new tribunal to prosecute Russia’s crime of aggression and stronger and more coordinated national investigations — must mark the beginning of a reinvigorated, and more even-handed, international justice system.” A Justice in Conflict commentary urged the ICC not to give up on justice in Africa by being distracted by Ukraine. “Victims and survivors of atrocities in Africa should also benefit from the advances and lessons learned in pursuing accountability in Ukraine. That includes the novel use of digital forensic investigations to catalogue and trace atrocities, the speedy domestic prosecution of international crimes by national authorities, and efforts aimed at avoiding the duplication of investigation efforts.” On another front, Inside Climate News wondered whether the 20th anniversary of the ICC might be an opportune moment to add ecocide to the list of crimes under its jurisdiction. Journalist Katie Surma observed that “[t]he momentum behind the movement to add an ecocide crime to the court’s jurisdiction has grown louder in recent years with support from Pope Francis, Dr. Jane Goodall, and U.N Secretary General Antonio Guterres, among others.” Read more about the Stop Ecocide movement here

What does the ICC itself think about its first 20 years of operation? View filmed statements from the Court’s President, Prosecutor and Registrar at the Court’s website.

Publications and Resources of Interest

cover of Sands' book

Islands and their status under international law are the focus of a new book-length study. In Islands and International Law (Bloomsbury 2022), scholar Donald R. Rothwell (Australian National University, Canberra) explores in depth issues such as artificial islands, archipelagos, sovereignty, territorial rights, maritime entitlements, and governance. 

Another recent book – Philippe Sands’ The Last Colony: A Tale of Exile, Justice and Britain’s Colonial Legacy  (Weidenfeld 2022) – delves into how international legal institutions have dealt with a particular island locality. The Scotsman notes that the book “tells the story of the last six decades of British rule in the Chagos Islands of the Indian Ocean, and of the long legal struggle to free the islands from British rule, after they were summarily separated from the rest of Mauritius, and kept under direct British control, on the eve of Mauritian independence in 1968. It is a tale of lingering colonial attitudes not only to the territory of the Chagos – including the island of Diego Garcia, leased to the United States since 1966 as their principal Indian Ocean air base – but, most shockingly, to the people of the islands, who were forcibly deported between 1967 and 1973…” Read a review of Sands’ book from The Guardian
screen shot of podcast
A recent Asymmetrical Haircuts podcast explores the movement to establish an International Anti-Corruption Court (IACC). Former international prosecutor and Brandeis Institute for International Judges co-director Richard Goldstone, who is active in the IACC campaign, was a special podcast guest. Integrity Initiatives International, the international non-profit coordinating the IACC campaign, announced in April that a total of 32 Nobel laureates have now endorsed the IACC initiative. Find the declaration of support and its signatories list here.
cover of commission report
The final report of Colombia’s Truth Commission, representing the culmination of exhaustive research and interviews with nearly 24,000 people across the country and in exile abroad, was issued this summer.  The Truth Commission was established through a 2016 peace accord with the Fuerzas Armadas Revolucionarias de Colombia (FARC). According to the UN Office of the High Commission on Human Rights, “[t]he Truth Commission is one of the three institutions that make up the Colombian Comprehensive System of Truth, Justice, Reparation and Non-Repetition created under the 2016 peace agreement. Since it started functioning in 2018, it has worked, at times in difficult circumstances, to shed light on five decades of atrocities and human rights violations committed during the country’s armed conflict.”  Watch a panel discussion on the report (with English interpretation) with members of the Truth Commission, organized by the United States Institute for Peace.