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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.

February 2017

People in the News

The International Center for Ethics, Justice and Public Life notes with sadness the passing in 2016 of two members of the Brandeis Institute for International Judges (BIIJ) network.

  Dolliver Nelson
Dolliver Nelson (Grenada, BIIJ 2002, 2006 & 2009) was a judge of the International Tribunal for the Law of the Sea from 1996 until 2014 and served as its President from 2002 to 2005. He was a participant in the 2002 inaugural session of the BIIJ and encouraged the organizers to make the institute a regular gathering.

George Gelaga King
George Gelaga King (Sierra Leone, BIIJ 2007 & 2012) was a judge of the Special Court for Sierra Leone from its opening in 2002 until its closing in 2013. He was president of the court from 2006 to 2008 and again from 2013 until it closed its doors. King served as the presiding judge when the Court's Appeals Chamber confirmed the conviction and sentence of Liberian ex-president Charles Taylor, who had been found guilty of crimes in the context of the Sierra Leonean civil war, including murder, rape, and pillage.

dFormer ICC Judge Ekaterina Trendafilova (Bulgaria) has been named president of the Kosovo Specialist Chambers, the new Hague-based court that will try former Kosovo Liberation Army fighters for crimes committed during and after the 1990s war. She will be responsible for the judicial administration of the Specialist Chambers and also serve as the presiding judge on its supreme court panel. Trendafilova, who started her four-year term in January, is the only full-time judge; others will be called off a roster when needed. Read more about Judge Trendafilova's background and the Specialist Chambers from Balkan Insight.

dFatsah Ouguergouz (Algeria, BIIJ  2007, 2010 & 2016), former Judge of the African Court on Human and Peoples' Rights, has been appointed to chair the Commission of Inquiry on Burundi. The Commission was created by the United Nations Human Rights Council to conduct a thorough investigation into human rights violations and abuses in Burundi since April 2015. The other members of the Commission are Reine Alapini Gansu (Benin, BIIJ 2006), and Françoise Hampson (UK). Read about the mandate of the Commission and the biographies of its members at Relief Web.

                Hans Corell
An open letter from the International Bar Association Human Rights Institute – signed by co-chairs Hans Corell (Sweden, former UN Under-Secretary General for Legal Affairs and former member of the Advisory Board of the International Center for Ethics, Justice and Public Life) and Baroness Helena Kennedy (UK) – was sent in December 2016 to then President-elect Donald Trump on the occasion of International Human Rights Day. The letter urged Trump to protect human rights in the US and noted that the US lags behind other countries by not being a member of the International Criminal Court, engaging in torture and rendition, and failing to ratify the Convention on the Elimination of All Forms of Discrimination Against Women and the UN Convention on the Rights of the Child. Human rights activists have not been reassured since the President took office in January 2017. As Amnesty International has noted, "if Trump implements his campaign rhetoric of fear and hate in US policies, there is a real risk that the vast power of the U.S. government could have devastating impacts on people’s human rights."

dThe early release of two Rwandans convicted of genocide by the International Criminal Tribunal for Rwanda (ICTR), among other crimes, has sparked outrage in Rwanda. President Theodor Meron (US, BIIJ 2006, 2010, 2012, 2015 & 2016) of the Mechanism for International Criminal Tribunals, which handles residual issues since the Tribunal's closing, made this statement about released prisoner Ferdinand Nahimana: "While the crimes of which Nahimana was convicted are very grave, the fact that Nahimana already completed two-thirds of his sentence as of 27 March 2016, and the fact that he has demonstrated some signs of rehabilitation weigh in favour of his early release." The New Times of Rwanda has called for Meron to be "held accountable" for what it views as unjustified clemency.

   Abdel Hakim Belhaj/credit: The Guardian
The United Kingdom's Supreme Court has ruled that the government and its agents are not immune from claims that they are responsible for human rights violations. In its long-awaited judgment in the two joined appeals in Belhaj and Another v. Jack Straw and Others and Rahmatullah v. Ministry of Defence and Another, the Court ruled that the UK Government could not rely on the legal doctrines of sovereign immunity and foreign acts of state to escape claims in the two cases alleging UK involvement in breaches of human rights by foreign governments. As reported in The Guardian, a unanimous judgment by seven justices concluded that "[c]laims that the rendition and torture of Abdel Hakim Belhaj breached rights enshrined in the Magna Carta should be put before an English court."

dThe new Secretary-General of the United Nations (UN), António Guterres, has been sworn in and is on the job. Guterres was Prime Minister of Portugal from 1995 to 2002 and served as the UN High Commissioner for Refugees from June 2005 to December 2015. He acknowledges that the UN has had both successes and failures. According to the UN News Centre,"Mr. Guterres called on the entire Organization for a collective effort to address the shortcomings and underlined the need to reform the UN development system, as well as address bureaucratic constraints that hamper its performance, saying the world body must try and get rid of its 'bureaucratic straight jacket'."

Developments in International Justice

cThe Grand Chamber of the European Court of Human Rights (ECtHR) held in a January 2017 decision that a whole life prison sentence does not necessarily violate Article 3 (the prohibition of inhuman or degrading treatment) of the European Convention on Human Rights. This decision backtracks on a 2013 Grand Chamber judgment that did consider such a sentence to violate Article 3. Both decisions involved whole life sentences handed down in the United Kingdom, as reported by the International Justice Resource Center. In the meantime, UK domestic law had been modified to meet the relevant standards for the possibility of release and review. To read about the various ECtHR cases that have addressed the question of whole life sentences, see the newly updated ECtHR's fact sheet on life imprisonment.

dIn December 2016, the International Court of Justice (ICJ) delivered its Order on the request for the indication of provisional measures in Immunities and Criminal Proceedings (Equatorial Guinea v. France). Equatorial Guinea’s claims arose from the French prosecution of Teodoro Nguema Obiang Mangue, First Vice-President of Equatorial Guinea and son of the long-standing President, on charges of corruption-related money laundering. According to EJIL:Talk!, this was "the first time that allegations related to large-scale corruption – often dubbed as ‘kleptocracy’ or ‘grand corruption’ – engender[ed] a dispute before the ICJ."  The case also involved the legal status of the building housing the Embassy of Equatorial Guinea on Paris' posh Avenue Foch – which also serves as Obiang's residence – from which French authorities had seized valuable property.  The ICJ ruled that France shall, pending a final decision in the case, take all measures at its disposal to ensure that the premises presented as housing the diplomatic mission of Equatorial Guinea enjoy treatment equivalent to that required by Article 22 of the Vienna Convention on Diplomatic Relations, in order to ensure their inviolability. The Court also unanimously rejected the request of France to remove the case from its "General List."

The ICJ ruling did not, however, prevent Obiang from going on trial in France for corruption and plundering of his country's public funds. The trial opened in early January 2017 but was quickly rescheduled to June 2017 to allow the defense more time to prepare. It is unclear whether Obiang will appear in court at that time. Read more from The New York Times. It is worth noting that the former long-standing president of Gambia Yahya Jammeh, who was voted out of office in December 2016 but only relinquished power after long negotiation and the threat of military force from neighboring countries, chose Equatorial Guinea as his place of exile. According to The Guardian, Jammeh "stole millions of dollars in his final weeks in power, plundering the state coffers and shipping out luxury vehicles by cargo plane."

dIn more late-breaking ICJ news, Ukraine has instituted proceedings against Russia, alleging violations of the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). According to an EJIL:Talk! commentary, issues pertaining to terrorism financing and racial discrimination are largely peripheral to the major issue at stake, which is the unlawful use of force. However, "[a]s Russia does not recognize the compulsory jurisdiction of the ICJ, the only avenue for bringing the action before the ICJ is to rely upon a treaty that provides for the possibility of judicial settlement in the ICJ and has been ratified by both parties. Given that both Ukraine and Russia are parties to the Terrorism Financing Convention and CERD, Ukraine invoked those two instruments as the basis for its action before the ICJ." 

dIn late 2016, the UN made its first steps toward bringing Syrian war criminals to account by establishing the "International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011.” According to the UN News Centre, "the Mechanism…will collect, consolidate, preserve and analyse evidence pertaining to violations and abuses of human rights and humanitarian law. It will also prepare files in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law." The international community must now wait to see if this "better late than never" action fulfills its stated aims.

fIn a landmark case, the Inter-American Court of Human Rights (IACtHR) has examined for the first time the issue of informed consent to medical treatment and forced sterilization. I.V. v. Bolivia involves a Peruvian refugee who was sterilized by a tubal ligation performed without her informed consent in a Bolivian public hospital in 2000, resulting in permanent loss of her ability to conceive a child. According to the International Justice Resource Center, "[t]he IACtHR’s judgment expands the Court’s jurisprudence on the principle of informed consent, the (infrequently cited) right to dignity under the American Convention on Human Rights, and a State’s obligation to ensure adequate training for medical professionals." Read the IACtHR press release (in Spanish).

dThe International Criminal Tribunal for the former Yugoslavia (ICTY) has been given its final extension by the UN Security Council and is now slated to close in late 2017. Balkan Insight reports that it has three important proceedings to complete in the coming months – two for war crimes in Bosnia and Herzegovina and one for contempt of court. The most important is one of the largest cases in the ICTY’s history, the proceeding against Bosnian Serb General Ratko Mladić. Closing arguments in the Mladić trial were delivered in December 2016. The ICTY has also signed an agreement with authorities in Sarajevo to set up an information center there that will offer public access to documents and video materials from the Tribunal. This center, the first of its kind in the former Yugoslavia, hopes furthermore to develop activities aimed at informing the public about war crime issues, with the aim of contributing to transitional justice and strengthening the rule of law in Bosnia and Herzegovina and the wider region. Read more in an ICTY press release.

dThe International Criminal Court (ICC) recently faced a tricky legal question in relation to the trial of Bosco Ntaganda. The Defence claimed that the charges against their client of the war crimes of rape and sexual slavery of child soldiers, allegedly committed in the Democratic Republic of Congo, did not fall within the subject matter jurisdiction of the Court. The Defence argued that, according to Article 3 common to the Geneva Conventions of 1949, war crimes may not be committed by members of an armed force against members of the same armed force. After examining the issue and the related submissions by all parties, Trial Chamber VI found "that limiting the scope of protection in the manner proposed by the Defence is contrary to the rationale of international humanitarian law, which aims to mitigate the suffering resulting from armed conflict. The Chamber further found that members of the same armed force are not as such excluded as potential victims of the war crimes of rape and sexual slavery, whether as a result of the way these crimes have been incorporated in the Rome Statute, or on the basis of the framework of international humanitarian law, or international law more generally." Read more in an ICC press release.

In other ICC news, the trial of Dominic Ongwen started in December 2016 and is now fully underway. This case has also raised legal, and perhaps even ethical, questions about how to prosecute someone who has been both a victim and perpetrator of war crimes and crimes against humanity. As reported by The Guardian, "The trial of is one of the most momentous in the ICC’s 14-year history, and raises difficult questions of responsibility and blame. Ongwen, who is 41, was abducted by the [Lord's Resistance Army] at the age of 10. He is the first former child soldier to face trial at the institution and the first defendant to be both alleged perpetrator and victim of the same crimes." Ongwen has been charged with 70 counts of war crimes and crimes against humanity, allegedly committed in northern Uganda, a number of which are associated with gender-based crimes such as rape, sexual slavery, and forced marriage. For an analysis of the gendered aspects of the Prosecution's opening statement in the Ongwen trial, read an IntLawGrrls post by Dieneke de Vos.

Publications and Resources of Interest

             Photo credit: UN

The United Nations Office on Drugs and Crime has issued a Handbook on the Management of Violent Extremist Prisoners and the Prevention of Radicalization to Violence in Prisons. The handbook, one in a series of UNODC resources meant to help States implement the rule of law and reform criminal justice systems, makes recommendations to ensure adherence to fundamental human rights, international standards, and good practices in the management of violent extremist prisoners. Read more from the UN News Centre.

dThe Program on Human Rights in the Global Economy, of the Northeastern University School of Law in Boston, recently convened its annual Human Rights Institute, whose focus in 2016 was "The Emergence of Human Rights Cities." The conference brought together over 150 academics, advocates and activists for urban social justice and was organized in collaboration with the national Human Rights City Network. The participants recognized the importance of human rights engagement at the local level in light of the current political transition in the United States and its threats to human rights within and outside of the country. Learn more about the conference at ESCR-Net. Read a list of recommendations to local activists, which include making their places of residence into so-called "sanctuary cities" that will protect the rights of immigrants, and evaluating their cities' human rights records.

fA new edited volume explores the practice of polygamy in North America. Edited by Janet Bennion and Lisa Fishbayn Joffe, The Polygamy Question (University Press of Colorado and Utah State University Press) includes contributions by scholars of law, anthropology, sociology, political science, economics, and religious studies. The book disentangles diverse forms of polygamy and polyamory practiced among a range of religious and national backgrounds, including Mormon and Muslim. It also considers how polygamy challenges our traditional notions of gender and marriage, and how it might be effectively regulated to comport with contemporary notions of justice.

Two new books explore fundamental issues around contemporary international criminal justice.

rThe Legitimacy of International Criminal Tribunals (Cambridge University Press, 2017) – a volume edited by Cecilia Bailliet, Nobuo Hayashi and Joanna Nicholson –  investigates key issues pertaining to legitimacy in these institutions, departing from the assertion that it cannot be taken for granted. Topics include criminal accountability, normative development, truth-discovery, complementarity, regionalism, and judicial cooperation.

xThe International Criminal Court in an Effective Global Justice System
(Elgar Publishing, 2016) explores the Court's need to interface effectively with national jurisdictions, which includes coordination with domestic judicial prosecutions as well as an appreciation for other non-judicial types of transitional justice. Authors Linda E. Carter, Mark S. Ellis and Charles Chernor Jalloh analyze the earlier international tribunals established since the 1990s and the parallel national proceedings for each. In examining the ways in which the ICC can best coordinate with national processes, this book considers the ICC’s present interactions with national jurisdictions and the statutory framework of the Rome Statute for interface with national jurisdictions.

dThe International Justice Resource Center has published a detailed manual for legal practitioners and others wishing to redress human rights violations on the African continent: Advocacy before the African Human Rights System: A Manual for Attorneys and Advocates Preventing and Remedying Human Rights Violations through the International Framework. As stated in the introduction, "This manual is intended to assist civil rights, social justice, and human rights advocates and attorneys in understanding and effectively engaging with the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights. These two bodies bear principal responsibility for promoting and protecting human rights in Africa and are primary components of the continental 'African human rights system'."

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

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