International Justice in the News

The International Center for Ethics, Justice and Public Life brings you a monthly selection of news about the people involved in the work of international courts and tribunals, significant developments in international justice, and publications and resources of interest. We hope that this brief selection will help you keep abreast of the field and lead you to sites where you can inform yourself further.

September 2019


Featured News

book coverA newly published book, Legitimacy of Unseen Actors in International Adjudication (Cambridge University Press), sheds light on the important contribution made by diverse individuals, beyond the very visible judicial decision-makers themselves, to the work of international courts and tribunals. Such “unseen actors” may take the form of registrars and legal officers, but also non-lawyers such as translators and scientific experts. Unseen actors are vital to the functioning of international adjudication, exerting varying levels of influence on judicial processes and outcomes. The opaqueness of their roles, combined with the significance of judicial decisions for the parties involved as well as a wider range of stakeholders, raises questions about unseen actors’ impact on the legitimacy of international dispute settlement. This volume, edited by Prof. Freya Baetens of the University of Oslo, aims to answer such legitimacy questions and identify “best practices” through a multifaceted enquiry into common connections and patterns in the institutional composition and daily practice of international courts and tribunals. The volume includes a chapter by IJIN editor Leigh Swigart entitled “Unseen and Unsung: Language Services at the International Criminal Court and their Impact on Institutional Legitimacy.” Read a blogpost about her contribution here.



People in the News

 

Chea
credit: ECCC


Nuon Chea, one of five senior leaders of the Khmer Rouge tried by the Extraordinary Chambers in the Courts of Cambodia (ECCC), has died. Although he was found guilty of various war crimes, crimes against humanity and even genocide – once in 2014 and again in 2018 – his latter conviction was under appeal when he died. The question to answer now is whether the conviction of the dead appellant will stand, following the precedent of the International Criminal Tribunal for the former Yugoslavia and various domestic jurisdictions, or whether internal ECCC regulations will be interpreted such that a continuance of his appeal in the interests of justice is not precluded. Whatever the outcome, writes Rachel Killean, “the death of Nuon Chea prior to his appeal being completed draws attention to the risks for the rights of both defendants and victims in delaying the delivery of justice. The ECCC has continued to be subjected to sustained critiques for the time it had taken to complete its cases, resulting in many victims, as well as defendants, dying before judgments were delivered.”



woman drivingWomen in Saudi Arabia recently saw their rights expanded through a royal decree that permits them to travel abroad without a legal male guardian. The New York Times reports that the new regulations “allow adult women to obtain passports, travel and work without securing the permission of a male relative, dealing significant blows to the kingdom’s so-called ‘guardianship’ system that has long been criticized by rights campaigners as oppressive to women.” This relaxation of constraints on Saudi women’s movements comes a year after they were granted the right to obtain licenses and drive motor vehicles. Despite these developments, however, The BBC reports that Crown Prince Mohammed bin Salman has also cracked down on women's rights activists, putting a number of them on trial in recent months.


Agius
Carmel Agius

President Carmel Agius of the Mechanism for International Criminal Tribunals, in an address before the United Nations Security Council, recently called attention to the plight of persons acquitted of crimes before the International Criminal Tribunal for Rwanda (ICTR) as well as those who have served their sentences. “I am compelled to raise a challenging and most unfortunate situation under the Mechanism’s purview. I am referring to the fate of the nine acquitted and released persons that remain in Arusha, one since 2004, in an unacceptable legal limbo. These persons should be free to start a new life, having served their sentences or never been convicted in the first place, and yet they cannot. While the Mechanism is doing all it can to find a long-term solution, the fate of these nine individuals is a responsibility it shares with the Member States of the United Nations, as was noted in Resolution 2422 (2018). More can, and must, be done to resolve this situation.” Defence lawyer Peter Robinson, who acted as counsel for ICTR acquitted person Major François Xavier Nzuwonemeye, approved of Agius’ remarks while noting that France refused to allow Nzuwonemeye on its territory after his acquittal, despite being a proponent of international justice.

Hlaing
Min Aung Hlaing/Credit: AFP

The United States has imposed sanctions on Myanmar’s top general Min Aung Hlaing and three other senior officers in response to their involvement in human rights abuses during the 2017 crackdown against the Rohingya minority. Secretary of State Mike Pompeo said the sanctions were prompted by the release of soldiers involved in a massacre in the village of Inn Din after several months of jail time, while the Reuters journalists who investigated the same massacre were held for 16 months in prison on charges of obtaining state secrets. Pompeo characterized this action as “one egregious example of the continued and severe lack of accountability for the military and its senior leadership.” The targeted leaders have been barred from entering the United States.


Bensouda
Prosecutor Bensouda

The much anticipated call for applications for a new prosecutor of the International Criminal Court (ICC) was recently issued. The person to replace Fatou Bensouda, whose nine-year term expires in June 2021, will need to satisfy many requirements and demonstrate a number of qualities, including professionalism, integrity, leadership, strategic awareness, and a knowledge of digital technology. In many ways, however, the post represents a “poisoned chalice”; as noted in an Irish Times piece, the Court is looking for an “experienced lawyer to face down Donald Trump, restore the writ of international justice by pursuing Syria’s mass murderers despite the politics of the UN Security Council, and reform a hugely slow and expensive court, many of whose most vocal member states hypocritically refuse to fund it.”

In a recent article, the International Justice Monitor suggests that international standards should serve as a source of inspiration during the election of the next ICC prosecutor. A critical standard is that of independence, because [i]ndependent prosecutors, who are willing to investigate and take legal action regardless of the status or power suspects may have in society, play a key role in strengthening the rule of law.” Interestingly, it is ICC judges who have been accused of lacking independence after they declined to approve an investigation by the Office of the Prosecutor into the possible commission of war crimes by the United States forces in Afghanistan, following interference and threats by the Trump administration.

The Committee on the Election of the Prosecutor, established by the Bureau of the Assembly of States Parties and assisted by a panel of experts, will determine the eventual candidates to be interviewed for this important legal post.


Developments in International Justice

A number of interesting legal matters related to the environment have recently been in the news.

fire
Kuwaiti oil well fires/credit: Rudaw

A group of prominent scientists from around the world have made a call in the journal Nature for a 5th Geneva Convention to protect nature and wildlife in war zones. According to The Guardian, “[t]he legal instrument should incorporate wildlife safeguards in conflict regions, including protections for nature reserves, controls on the spread of guns used for hunting and measures to hold military forces to account for damage to the environment.” Discussions around accountability for war-related environmental damage have emerged in the wake of various modern conflicts, including the Vietnam War where the harmful Agent Orange was used by the US military to clear land, and the invasion of Kuwait by the Iraqi military who set fire to 600 oil wells during a scorched-earth retreat.

islands
Tuvalu/Credit: Der Spiegel

Leaders of Pacific island nations gathered in August in Tuvalu for the Pacific Islands Forum, where a group of students from the region called on their governments to bring the issue of climate justice to the International Court of Justice (ICJ). Climate Liability News reports that an ICJ advisory opinion “would have many benefits despite not being legally binding. It would integrate separate areas of international law such as human rights and environmental law; provide impetus and authority for more ambitious action under the Paris Agreement to fulfill existing human rights obligations; cement consensus on the scientific evidence of climate change; and help inform international and domestic climate litigation.” The Pacific Islands Forum showcased the culture and also the vulnerability of Tuvalu, whose territory is rapidly decreasing due to sea level rise. The gathering also became contentious due to the reluctance of Australia to take responsibility for the impact of its large fossil fuel industry on climate change.


farmThe United Nations Human Rights Committee has ruled that Paraguay must undertake an effective and thorough investigation into fumigations with agrochemicals and the subsequent poisoning of people, including children, and contamination of water, soil and food. The Committee found that violations of the right to life and the right to private life, family and home had occurred, and it urged the government to prosecute those responsible, to make full reparation to the victims, and to publish the decision in a daily newspaper with a large circulation.


Issues such as those above are likely to be discussed at the upcoming Peoples' Summit on Climate, Rights and Human Survival. To be hosted by leading civil society groups and the UN Human Rights Office in New York on 18-19 September 2019, this summit will be the first ever focused on human rights and climate change. There will also be a UN Climate Action Summit in New York on 23 September, which Swedish activist Greta Thunberg famously traveled to by sailboat in order to minimize her carbon footprint.

woman with hand over mouth, police
credit: New Eastern Europe

The European Court of Human Rights (ECtHR) recently issued its first ruling on domestic violence in Russia. In Volodina v. Russia, the Court found that Russian authorities are “reluctant to acknowledge the gravity” of the problem of domestic violence and its “discriminatory effect on women.” The case revolved around the claimant, Valeriya Volodina, who repeatedly sought protection from the police from her ex-boyfriend who had beaten her, kidnapped her, and threatened to kill her.  But the authorities refused to pursue the case. The New York Times reports that the ruling has “cast a harsh light on the Russian judicial and law enforcement systems, and their longstanding blind spot when it comes to domestic violence. A report last year by Human Rights Watch described the problem as ‘pervasive’ in Russia but rarely addressed because of legal hurdles, social stigma and a general unwillingness by law enforcement officers to take it seriously.” The ECtHR currently has ten more domestic violence cases from Russia on its docket.

mountain with face
credit: Free Press Journal


In July, the International Court of Justice (ICJ) issued its judgment in the Jadhav case (India v. Pakistan). The case involves Pakistan’s arrest in March 2016 of an Indian national, Kulbhushan Jadhav, on charges of spying. He was sentenced to death by a Pakistani military court a year later. The central question addressed by the ICJ was the legality of Pakistan’s failure to provide consular access to Jadhav as spelled out in the Vienna Convention on Consular Access (VCCR), a treaty which both countries have ratified. Pakistan argued that Jadhav was not entitled to consular access because he was a spy who had entered the country to foment unrest. The ICJ found that Pakistan acted in breach of its VCCR obligations and consequently directed it to provide, by the means of its own choosing, effective review and reconsideration of Jadhav’s conviction and sentence. A BBC analyst commented that “both sides seem to be claiming this ruling as a victory. India will now be allowed consular access to Jadhav, while Pakistan can point to the fact the judges declined to order Jadhav be freed.” Tensions between the two countries have only accelerated since the judgment due to their ongoing dispute over the region of Kashmir. Pakistan's foreign minister now indicates that his government would like to bring this territorial dispute before the ICJ "after considering all legal aspects."



IACHR logoThe Inter-American Commission on Human Rights (IACHR) has taken issue with a number of recent events in the United States. It strongly condemns the mass shootings and associated racism and intolerance that occurred in El Paso, Texas; Dayton, Ohio; Chicago, Illinois; and Memphis, Tennessee, which resulted in at least 34 fatal victims and more than 50 injured persons. The Commission also expresses its profound concern for the reinstatement of the death penalty at the federal level in the US and reiterates its recommendations made in a 2011 report, “The Death Penalty and the Inter-American Human Rights System: From Restrictions to Abolition.” Finally, the IACHR expresses its concern about the situation of migrants and refugees in the United States, Mexico, and Central America. The Commission recently completed a work visit to the southern border of the US to monitor the human rights situation in relation to reception conditions at the border, access to asylum and international protection procedures, conditions of immigration detention and the practices associated with it, asylum and immigration proceedings, as well as procedural guarantees and judicial protection, with a special emphasis on the principles of family unity and the best interest of the child.

ICC logoOn 8 July 2019, Trial Chamber VI of the International Criminal Court (ICC) found Bosco Ntaganda guilty, beyond reasonable doubt, of 18 counts of war crimes and crimes against humanity committed in Ituri, Democratic Republic of the Congo in 2002-03.  He is the fourth person to be tried by the ICC for grave international crimes in that country. While Ntaganda’s crimes were diverse – including murder and attempted murder, persecution, forcible transfer and deportation, enlisting child soldiers, and intentionally directing attacks against protected objects – it is his conviction for sexual and gender-based violence (SGBV) that some observers feel is most ground-breaking. Particularly notable, write Rosemary Grey and Indira Rosenthal, is the finding that rape and sexual enslavement of child soldiers by their own commanders – and not just enemy forces –  may constitute war crimes under the Rome Statute. Parisa Zangeneh comments on another aspect of SVBV in the Ntaganda judgment, that of acts committed against men and boys. She points out the Trial Chamber labels these acts as rape in the judgment, “the severest criminal label that can be affixed to sexual crimes.” For a more global perspective on the Ntaganda judgment, read an insightful analysis by Douglas Guilfoyle in EJIL Talk!.

An appeals court in the state of New York recently ruled that two highly valued early 20th century paintings looted by the Nazis belong to the heirs of the Austrian Jewish entertainer, Fritz Grünbaum, who first collected them. Legal observers consider that the judgment “could embolden legal efforts by Jewish heirs to reclaim Nazi-stolen art worldwide.” This case, Reif v. Nagy,  has been closely watched in art world legal circles, from the United States to Austria and Germany and beyond, since it was launched in 2015. The ruling is bound to provide guidance on how to decide cases concerning Nazi-looted art that typically assess evidence and history from decades earlier.

painting
“Woman Hiding Her Face” by Egon Schiele,
one of the paintings to be returned to
Grünbaum’s heirs


Publications and Resources of Interest

podcast logoA new podcast series, with the intriguing title of “Asymmetrical Haircuts,” describes itself as offering “a different view on international justice.” Journalists and podcast creators Janet Anderson and Stephanie van den Berg illuminate various critical topics in international justice through interviewing diverse actors, mostly women who are not the usual commentators but provide a valuable angle on the field. Past episode themes include “Perp Talk,” “Only Human: Judges at the ICC,” and “Justice on the Cheap.” Access all episodes at the podcast website.



logoIn an important and timely new article, scholar Cecilia Bailliet of the University of Oslo analyzes the rise of nativism and authoritarianism around the globe and the impact of the resultant xenophobia on immigrants. The article, entitled “Protection of Refugees, Returnees, Migrants, and Internally Displaced Persons against Racism, Xenophobia, and Discriminatory Practices” (starting p. 75), stresses the need for concerted effort by the international community to counteract contemporary tendencies and practices. In an IntLawGrrls blogpost, Bailliet provides a sketch of her argument: “There are currently three scenarios faced by refugees and IDPs: protracted camps/warehousing, urbanization, and detention. This article outlines the range of human rights violations and accountability gaps in each of the three scenarios faced by refugees, arguing that these are examples of structural xenophobia. It discusses normative gaps within international law and analyzes the role of compliance mechanisms in the UN Human Rights Treaty Body Regime and regional human rights bodies. The article underscores the risk of inaction by the international community in the face of discrimination against refugees, using the case study of Norway.”


coverA new document issued by the Hybrid Justice Project aims to provide guidance on the establishment of future hybrid courts, that is, criminal justice mechanisms combining national and international elements. The lead authors of the Dakar Guidelines on the Establishment of Hybrid Tribunals are Kirsten Ainley and Mark Kersten. In a blogpost, Kersten explains the goal of the document: “…the Guidelines offer national, regional, and international actors involved in the establishment of hybrid tribunals a set of key decision points and design options that should be considered when establishing and running a hybrid court. The Guidelines are particularly tailored to two purposes: (1) to highlight issues that have proven complicated or had long-term implications for past hybrid courts and so should be given special consideration in the design phase, and (2) to suggest design components that may increase the resilience of the court (i.e., the court’s own capacity to act independently and to resist political, financial, and other pressures), and the resilience of affected communities through engagement with the court.”



logoThe potential challenges facing hybrid courts are well illustrated by the Special Criminal Court in the Central African Republic. Established  by law in 2015 to try grave crimes committed during the country’s armed conflicts since 2005, the court has met with many obstacles, as documented by the Institute for Security Studies and Human Rights Watch. It is also problematic that, following the provisions of a recent peace accord, the leaders of three of the armed groups active in the country act as special military advisers in the prime minister’s office. In recent days, the Special Criminal Court’s prosecutor has brought his first case, involving the massacre of 46 civilians by one of these armed groups. It remains to be seen, however, whether the leader will himself be implicated in the case. As reported by JusticeInfo, “[c]ritics have cast doubt over whether the court will target high-profile militia leaders and political figures amid concern that arrests could destablise the security situation.”



International Justice in the News
is edited by Leigh Swigart, Director of Programs in International Justice and Society.

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