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 institutions, 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.

November 2019


Spotlight shining down on left cornerSpotlight on Language, Culture and Justice

"A Look at Language and Culture Issues in Mass Violence Trials"

What kinds of misunderstandings emerge in the context of criminal trials dealing with war crimes, crimes against humanity and genocide? What are the impacts of different linguistic and cultural practices on both the proceedings and the ways in which these proceedings are understood? While various scholars and observers have mapped parts of this vast terrain over the past two decades (see the work, among others, of Nancy Combs, Nigel Eltringham, Joshua Karton, Tim Kelsall, Jonneke Koomen and Catherine Namakula), several new commentaries featuring language and culture deserve a mention.

A recent article by anthropologist María Luz García highlights the difficulties that can arise when different discursive styles meet in the context of a courtroom. García carried out an in-depth study of how language was used during the 2013 domestic trial of former Guatemalan leader José Efraín Ríos Montt, who was charged with genocide of the Mayan Ixil indigenous population. García found that “the language ideologies governing discourse in Western courtrooms seek to divorce language use from cultural context through the proposition that content can be transferred from one language to another without loss of meaning.” In particular, she observed that the court was unable to recognize Ixil ways of speaking and therefore Ixil subjectivities. García notes that as a growing number of Mayan language speakers migrate to the United States, they increasingly find themselves enmeshed in legal processes where they continue to experience communication problems. 

Ixil people on steps outside trial
Members of the Ixil community
attending the Ríos Montt trial


Questions around language issues were also part of the recent visit by journalists from the Central African Republic (CAR) to the International Criminal Court (ICC), where they attended the confirmation of charges hearing for two Central African defendants, Alfred Yekatom and Patrice-Edouard Ngaïssona. Inès Laure Ngopot, special envoy to the ICC for Radio Ndeke Luka, described her experience in an interview with JusticeInfo. She and her colleagues were surprised to find that few documents relating to the case were available in French, despite CAR being a francophone country and French being an ICC working language. “We Central African journalists were very disappointed when some important documents for our articles were only in English,” Ngopot noted. “This has made our work very difficult.” She was also surprised when defense counsel objected to the journalists making a reportage in Sango because they did not understand what the journalists were saying. According to Ngopot, they seemed “unaware that this hearing concerns the Central African population, some of whom do not understand either English or French.” 

Yekatom and Ngaissona
Yekatom and Ngaïssona


A disconnect also emerged between the language of retributive justice and that of reconciliation. Ngopot explained, "We Central African journalists are aware of our role in relation to the public. As the country is in the post-conflict stage, we must avoid fueling hatred among our listeners or readers. During this hearing, the judges, the prosecutor's office and the defence used a lot of harsh language, which could have a negative impact on the public. For example, they talked of ‘throat slitting’, of a ‘Muslim population that was massacred by Anti-Balaka’, a ‘religious’ conflict, etc. These are words that we Central African journalists cannot convey as such. We try to say it in a different way while keeping the idea.” In a recent Opinio Juris symposium devoted to Phil Clark’s Distant Justice: The Impact of the International Criminal Court on African Politics, the author makes a similar observation about the Court’s “negative impact on African societies in terms of jeopardising elections, peace negotiations, truth commissions, demobilisation programmes and community-based rituals.”  Symposium participants Mark Drumbl and Kamari Clarke also offered thought-provoking comments about how the ICC is distant both emotionally and affectively from African societies, perspectives that do not align with the generally rational and Western-oriented culture of international criminal law.

members of CAR
CAR journalists at ICC


Readers may learn more about the interrelation of language and culture at the ICC, including various effects of English-language dominance within the institution, in a soon-to-be published article by IJIN editor Leigh Swigart: “Now You See It, Now You Don’t: Culture at the International Criminal Court”. This nexus of issues in legal settings is the focus of Brandeis University’s Project on Language, Culture and Justice, currently under development.



People in the News

 

Brenda HollisMs. Brenda J. Hollis was recently appointed as International Co-Prosecutor of the Extraordinary Chambers in the Courts of Cambodia (ECCC). Hollis has a long experience in international criminal justice. She was appointed as the ECCC Reserve International Co-Prosecutor in 2015 and also served as the Prosecutor of the Special Court for Sierra Leone (SCSL) and then its residual mechanism from 2010 to 2019. She was the Principal Trial Attorney in the SCSL prosecution of former Liberian President Charles Taylor. From 1994 to 2001, Hollis held various positions in the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, including that of lead counsel in the preparation of the case against former Serbian President Slobodan Milošević and that of co-counsel in the Tadić case, the first litigated case in an international tribunal since the Nuremberg trials. 

Photo of Ben Ferencz
Ben Ferencz,  the last surviving Nuremberg prosecutor

A group of former international criminal prosecutors has also been in the news for requesting leave to file an amicus brief in the International Criminal Court (ICC) Afghanistan situation. The group includes David Crane, Benjamin Ferencz, Richard Goldstone, Carla Del Ponte, and Stephen Rapp. As their application notes, “[t]heir combined experience covers the Subsequent Proceedings at Nuremberg, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone.” In April 2019, the ICC’s Pre-Trial Chamber II rejected the opening of an investigation into alleged war crimes and crimes against humanity committed on the territory of Afghanistan on the grounds that it “would not serve the interests of justice.” If granted leave, the amicus brief of these eminent prosecutors will contain observations on “the merits of the appeals filed by the Prosecutor and the victims.” The Appeals Chamber is also expecting input from Afghan NGOs as it reviews the decision of the Pre-Trial Chamber, one which has been widely criticized. A legal officer of the Coalition for the International Criminal Court asked pointedly, for example, “Is it ever in the interests of justice for the ICC to refuse permission to open investigations into grave crimes on the basis that the OTP has a limited budget, speculation that member’ states will not cooperate with the Prosecutor and other political considerations?”


Photo of Al HassanIn other ICC news, Pre-Trial Chamber I has issued a unanimous decision confirming the Prosecutor's charges against Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (“Al Hassan”) for war crimes and crimes against humanity. This decision commits him to trial before a Trial Chamber. Al Hassan is allegedly responsible for widespread and systematic attacks on the civilian population of the Timbuktu, Mali region between April 2012 and January 2013, during which torture, rape, sexual slavery, other inhumane acts were committed. During the same time period, Al Hassan also allegedly committed war crimes in Timbuktu not of an international nature, including passing sentences in the absence of a judgment pronounced by a regularly constituted court that affords all judicial guarantees, and intentionally directing attacks against buildings dedicated to religion and historic monuments. In a recent Asymmetrical Haircuts podcast, defence lawyers working on ICC confirmation of charges proceedings commented on what they view as various unfair practices of the Court vis-à-vis defence teams, including that of Al Hassan. The decision confirming the charges can be appealed only with the authorization of Pre-Trial Chamber I.


Photo of Dag Hammarskjold
Dag Hammarskjöld

The United Nations (UN) has released the report of Mohamed Chande Othman, former Chief Justice of Tanzania, who has been investigating the mysterious circumstances surrounding the death of Dag Hammarskjöld for several years. UN Secretary General from 1953 to 1961 and an advocate for decolonization, Hammarskjöld is the sole statesman to have been awarded a Nobel Peace Prize posthumously. In September 1961, Hammarskjöld and fourteen others were killed when his aircraft crashed moments before landing in Ndola, a town in modern-day Zambia. According to a New York Times article, Othman’s report concludes that the aircraft may have been attacked, and that “four countries – Britain, Russia, South Africa and the United States – may be withholding information that could solve the puzzle.” The article notes that some theories concerning the crash “hold that colonial-era mining interests, perhaps backed by Western intelligence agencies, had plotted to assassinate Mr. Hammarskjöld, who was an avid promoter of African independence from colonial powers during a pivotal period of the Cold War.” According to Foreign Policy, the testimony of African witnesses may also have been ignored in the investigations that took place immediately after the incident. In his report, Othman called on the UN to appoint an independent investigator to try to extract critical documents from key countries that may help prove who was responsible. 


Achiume
Tendayi Achiume

In 2018, the Dutch Upper House of Parliament passed a law banning face coverings, including burqas and niqabs, in public spaces such as schools, hospitals, public transport and government buildings. In a recent visit to The Hague, UN special rapporteur on racism, racial discrimination, xenophobia and related intolerance, Tendayi Achiume, claimed that “[t]he political debate surrounding the adoption of this law makes plain its intended targeting of Muslim women, and even if this targeting was not the intent, it has certainly been the effect.” Achiume also questioned the perception that Dutch society is inherently inclusive and tolerant, saying this belief masks the reality of a national identity and national belonging that treats racial and ethnic minorities as perpetually foreign. “The paradox in the Netherlands is that insistence that equality and tolerance already exist actually operates as a barrier to achieving this equality and tolerance in fact,” Achiume said in a statement at the end of her visit. “This insistence makes it difficult to mobilize the resources and action necessary to ensure equality, non-discrimination and inclusion for all.” 

Photo of former President Jammeh at tableThe Gambian Truth, Reconciliation and Reparations Commission (TRRC) has seized the personal wealth of the country’s former dictator to pay reparations to those harmed by the actions of his regime. The TRRC, whose mandate is to investigate human rights violations committed under the presidency of Yahya Jammeh (1996-2017) and prevent their recurrence, began its public hearings in January 2109. It has so far heard from over 120 witnesses, both victims and perpetrators, among them former senior members of the military junta. JusticeInfo reports that Gambia’s Justice minister, Abubacarr Tambadou, made this announcement in early October: “It has become increasingly apparent to the Government, based on revelations at the TRRC over the past one year, that former President Yahya Jammeh was a central pillar in the infrastructure of terror and human rights abuses that were unleashed on ordinary Gambians and others under his leadership. Consequently, the Government deems it most fitting, and just, that reparations for his victims should be granted directly from his wealth and assets.” Jammeh was forced to step down in 2017 after he refused to concede defeat in a presidential election and is now living in exile in Equatorial Guinea. The TRRC Trust Fund has so far received $1 million in funds from the sale of Jammeh’s various holdings and property.


Developments in International Justice

Antonio Gutteres at podium
António Guterres

UN Secretary-General António Guterres announced a “severe financial crisis” when presenting his organization’s budget in October 2019. Guterres continued, “To be more specific, a severe liquidity crisis. The equation is simple: without cash, the budget cannot be properly implemented.” A UN spokesperson indicated that by the end of September, only 70 per cent of the total assessment for the year had been paid, compared to 78 per cent at the same time in 2018. Furthermore, according to The New York Times, seven nations — Argentina, Brazil, Iran, Israel, Mexico, the United States and Venezuela — are responsible for 97 percent of the unpaid budget. The US alone owes $674 million for the current year and $381 million for prior years. Guterres warned that the UN would be unable to cover its payroll and other critical expenses unless the unpaid money started flowing in soon. 


Boeing and Airbus political cartoon with Donald Trump and Angela Merkel riding the planesThe World Trade Organization (WTO) recently awarded the United States the largest arbitration award in its history, $7.5 billion, in a dispute with the European Union over illegal subsidies made to the aerospace company Airbus. After four previous panel and appellate reports between 2011 and 2018, WTO arbitrators found that the EU’s subsidies to Airbus broke WTO rules. U.S. Trade Representative Robert Lighthizer explained what happens next: “For years, Europe has been providing massive subsidies to Airbus that have seriously injured the U.S. aerospace industry and our workers. Finally, after 15 years of litigation, the WTO has confirmed that the United States is entitled to impose countermeasures in response to the EU’s illegal subsidies… The tariffs will be applied to a range of imports from EU Member States, with the bulk of the tariffs being applied to imports from France, Germany, Spain and the United Kingdom – the four countries responsible for the illegal subsidies.” The New York Times notes that this is not, however, a clear-cut victory for Boeing. Some of the customers affected by the grounding of its 737 Max airplanes, a model which has been involved in recent deadly accidents, also buy Airbus planes; they now face the prospect of higher costs as a result of the tariffs, adding to their frustrations with Boeing. Furthermore, the WTO is also expected to decide on an “inverse” case next year in which Europe accuses the United States of providing illegal subsidies to Boeing.

Udo Pastors yelling
Udo Pastörs
credit: alchetron.com

The European Court of Human Rights (ECtHR) has unanimously ruled in Pastörs v. Germany that Holocaust denial is not protected under the European Convention of Human Rights. The applicant, Udo Pastörs, argued before the Court that a ban on Holocaust denial was a violation of his right to freedom of expression (Article 10). Pastörs was a Member of Parliament and chairperson of the far-right National Democratic Party of Germany in the Land Parliament of Mecklenburg-Western Pomerania. After Holocaust Remembrance Day in 2010, the applicant delivered a speech in Parliament in which he denied the reality of the Holocaust and criticized its remembrance, stating that “the so-called Holocaust is being used for political and commercial purposes” and that “[s]ince the end of the Second World War, Germans have been exposed to an endless barrage of criticism and propagandistic lies – cultivated in a dishonest manner primarily by representatives of the so-called democratic parties.” The ECtHR ruled unambiguously that to deliver this type of speech is not a protected right. The Court also found that Pastörs’ claim that he had been the subject of judicial bias in an earlier ruling by a German court was unfounded. Read more in an ECtHR press release.



Permanent Court of Arbitration logoThe Permanent Court of Arbitration (PCA) will soon have a new office in Buenos Aires. This institution, established in 1899, provides services to States, international organizations and private parties involving arbitration and other forms of peaceful resolution of international disputes. According to a PCA press release, “[t]he new office will provide a base from which the PCA can administer the growing number of PCA cases related to Latin American parties. The new office will allow the PCA to better serve the dispute resolution needs of States and private parties in Latin America and to meet demand in coming years.” This office will be the PCA’s first in Latin America and the third outside its headquarters in The Hague. The other remote offices are located in Singapore and Mauritius. 

coast lined with houses
credit: NDRC

In its most recent session, the UN International Law Commission (ILC) adopted the topic of “Sea-Level Rise in Relation to International Law” for its program of work. The Commission also decided to establish an open-ended Study Group on the topic. The ILC’s approach to the topic will be based on three papers related to the law of the sea, statehood, and protection of persons affected by sea-level rise. The ILC understands that a large number of states will be directly and indirectly affected by sea-level rise, either by displacement of peoples or lack of resources. The International Law Association (ILA) has also recently expressed its concerns about the impacts of sea-level rise and its implications for human rights by developing the Sydney Declaration of Principles on the Protection of Persons Displaced in the Context of Sea Level Rise. The Declaration is designed to “provide guidance to States in averting, mitigating, and addressing displacement of persons occurring in the context of sea level rise, based on and derived from relevant legal provisions, principles, and frameworks.” 

facebook logoThe Court of Justice of the European Union (CJEU) has held that the consent which website users must provide on their equipment in regard to cookies is not validly constituted by way of a prechecked checkbox that users must deselect in order to refuse their consent. The case revolved around the German Federation of Consumer Organisations, which challenged the consent practices of the German company Planet49. The Bundesgerichtshof (Federal Court of Justice, Germany) subsequently asked the Court of Justice to interpret EU law on the protection of electronic communications privacy. According to a CJEU press release, “EU law aims to protect the user from any interference with his or her private life, in particular, from the risk that hidden identifiers and other similar devices enter those users’ terminal equipment without their knowledge.”

In another internet-related case, the CJEU recently held that individual countries can order a host provider, like Facebook, to take down posts, photographs and videos not only in their own countries but elsewhere, a ruling that extends the reach of the region’s internet-related laws beyond its own borders. According to The New York Times the decision “stemmed from a case involving an Austrian politician, Eva Glawischnig-Piesczek, who sued the social network to expunge online comments that called her a ‘lousy traitor,’ ‘corrupt oaf’ and member of a ‘fascist party.’ After an Austrian court found the comments violated defamation laws, she demanded Facebook erase the original comments worldwide, not just within the country, as well as posts with ‘equivalent’ remarks.” Slate offered a scathing review of this ruling: “[T]he top European court dealt a major blow to free speech, paving the way for a single nation to act as a global censor and require that online platforms act as its minions in doing so… [T]he court demonstrated a shocking ignorance of the technology involved and set the stage for the most censor-prone country to set global speech rules.”

Publications and Resources of Interest

book coverThe Judges of the Residual Special Court for Sierra Leone  (RSCSL) recently issued Bearing the Greatest Responsibility: Select Jurisprudence of the Special Court for Sierra Leone, a digitized volume of the consolidated judgments of the Special Court for Sierra Leone (SCSL). The SCSL wrapped up its work in December 2013 after the completion of its mandate and was succeeded by the RSCSL, which ensures its legacy. In announcing the availability of this new compilation, RSCSL judges stated, “It is our firm belief that it will be a very good resource material to you in furtherance of your research in support of International Criminal Law, the rule of law and international criminal accountability. We count on your support in ensuring the continued dissemination of this exemplary work with your library and colleagues around the world.”


Two recently published books offer new insights into the practice of international justice.

book cover of "Comparative Reasoning in International Courts and Tribunals"Daniel Peat’s Comparative Reasoning in International Courts and Tribunals (Cambridge University Press 2019) examines the ways in which domestic law is invoked to interpret international law, reversing the direction of influence usually assumed to exist between these two spheres. It assesses the appropriateness of such recourse to domestic law and situates the practice within broader debates regarding interpretation and the interaction between domestic and international legal systems.

book cover of "The Concept of Race in International Criminal Law"Carola Lingaas’ The Concept of Race in International Criminal Law (Routledge 2019) is the first comprehensive study of the notion of race in this field. It explores the theoretical underpinnings for the crimes of genocide, apartheid, and persecution, and analyzes all the relevant legal instruments, case law, and scholarship. The book exposes how international criminal tribunals have largely circumvented the topic of race, and how incoherent jurisprudence has resulted in inconsistent protection. She argues instead that race in international criminal law should be constructed according to the perpetrator's perception of the victims’ ostensible racial otherness. 



How has your country voted on important issues at the United Nations? A new interactive tool from Al Jazeera can help you to “[e]xplore the biggest issues facing the planet and see how they have evolved.”  The news outlet analyzed 6,112 roll-call votes from the UN General Assembly from 1946 to 2018 on six major issues: colonialism, economic development, arms control, human rights, nuclear weapons and the Israeli-Palestinian conflict. Click here to access the tool and begin your own exploration.

chart showing votes by country



International Justice in the News
is edited by Leigh Swigart, Director of Programs in International Justice and Society, and Renee Nakkab '22.

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