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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.

April 2018

People in the News

Zeid Ra'ad Al-Hussein
             Zeid Ra’ad Al-Hussein

Zeid Ra’ad Al-Hussein, the UN High Commissioner for Human Rights, recently presented a report to the Human Rights Council, describing the growth of Israeli settlements in Palestinian territory as war crimes. The report claims that “the transfer of the population by an occupying State into an occupied territory is a grave breach of article 147 of the Fourth Geneva Convention and therefore a war crime.” An Israeli press outlet notes, "The Human Rights Council has been criticized for issuing a significantly disproportionate number of reports against Israel. Syria and Iran by contrast only have single reports issued against them." US Ambassador to the UN Nikki Haley similarly accuses the Council of bias against Israel and is threatening US withdrawal from the UN. But Zeid does appear to have other countries in his sights, with the Council passing resolutions against Syria as well. Zeid stated that the Syrian government's five-year siege of the Damascus suburbs of eastern Ghouta has involved "pervasive war crimes," use of chemical weapons and starvation as a weapon of war. "When you are capable of torturing and indiscriminately killing your own people, you have long forfeited your own credibility," Zeid declared. The Human Rights Council also passed resolutions against North Korea, Iran, South Sudan and Myanmar in its recent session.

Judge Ivana Hrdlickova
Judge Ivana

The Judges of the Appeals Chamber at the Special Tribunal for Lebanon (STL) have unanimously reelected Judge Ivana Hrdličková (Czech Republic) as President of the Tribunal and Judge Ralph Riachi (Lebanon) as Vice-President. Their 18-month terms began in March 2018 Read the STL press release here.

Justice Adrian Dudley SaundersThe Honourable Mr. Justice Adrian Dudley Saunders (St. Vincent and the Grenadines), a participant at the 2010 Brandeis Institute of International Judges (BIIJ), was recently appointed next President of the Caribbean Court of Justice (CCJ). He will begin his term later this year. The Heads of Government of the Caribbean Community made the appointment at their meeting last month, based on the nomination of the Regional Judicial and Legal Services Commission. Read more in a CCJ press release.

Jennifer Hillman
         Jennifer Hillman

Some economic experts speculate that US President Donald Trump’s tariffs on foreign steel and aluminum may eventually give the administration an excuse to leave the World Trade Organization (WTO). According to Jennifer Hillman (BIIJ 2009 and 2010), formerly a member of the WTO Appellate Body, "it is not difficult to sketch out a scenario where the Trump administration would just say 'that’s it, we are leaving'.” She predicts that Trump is planning to justify the sweeping tariffs on the grounds that the foreign imports threaten national security, citing Article 21 of the General Agreement on Tariffs and Trade, which indicates that some binding tariff agreements can be broken during wartime. Grant Aldonas, who served as undersecretary for international trade in the Commerce Department during the George Bush administration from 2001 to 2005, considers that taking such an action on national security grounds is "pretty clearly unjustifiable” and “challengeable” in U.S. courts.

Aung San Suu Kyi
                   Aung San Suu Kyi
                 (Credit: The Diplomat)

Last month, five Australian lawyers filed a private prosecution application to bring charges of crimes against humanity against Aung San Suu Kyi, the State Counsellor of Myanmar, who was visiting Australia to attend a summit of the Association of Southeast Asian Nations. These charges were inspired by the flight of more than 650,000 ethnic Rohingya from Myanmar into neighboring Bangladesh since August 2017. It is alleged that the Rohingya have endured systematic violence –  including rape, murder, and deliberate torching of villages – which has gone unanswered by Suu Kyi, who is de facto head of state in Myanmar. Shortly after the application was filed, Australian Attorney General Christian Porter claimed that Suu Kyi could not be prosecuted because she has immunity. Porter explained, “Aung San Suu Kyi has complete immunity, including from being served with court documents because under customary international law, heads of state, heads of government and ministers of foreign affairs are immune from foreign criminal proceedings and are inviolable – they cannot be arrested, detained, or served with court proceedings.” However, Australian Prime Minister Malcolm Turnbull indicated that he would discuss the persecution of the Rohingya when he met with Suu Ky.

The International Criminal Court hit a milestone in 2018 – the 20th anniversary of the adoption of the Rome Statute, the treaty establishing and regulating the Court and defining the crimes under its jurisdiction. This event was celebrated in February with a festive gathering of eminent figures in the world of international justice. Some prepared commemorative remarks about the significance of the ICC, including Richard Goldstone, first Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, and Hans Corell, who as UN Under-Secretary for Legal Affairs organized the 1998 Rome Conference where the treaty was debated and finalized. Since that time, six new judges have been sworn into the ICC and a new Presidency has been elected: Chile Eboe-Osuji (Nigeria) will serve as President, Robert Fremr (Czech Republic) as 1st Vice President, and Marc Perrin de Brichambaut (France) as 2nd Vice President, each for a term of three years. In late March, a new registrar, Peter Lewis (United Kingdom), was elected for a period of five years.

Robert Fremr, Chile Eboe-Osuji and Marc Perrin de Brichambaut
            ICC Presidency: Fremr, Eboe-Osuji, and
                 Perrin de Brichambaut (l to r)

Not all observers of the ICC see a rosy picture, however. Amnesty International declares that this is not a time to celebrate international justice since the ICC is at a crisis point: "its core goal of ‘ending impunity’ is still so far out of reach that, in marking the anniversary, many supporters of international justice no doubt wonder where to go from here." A recent open letter from the Norwegian Helsinki Committee to ICC Prosecutor Fatou Bensouda calls for an external investigation of alleged wrongdoing and corruption in her office during the tenure of her predecessor  Luis Moreno Ocampo. The Committee urges Bensouda to use her authority "to conduct credible and transparent reviews of the legacy of the first Prosecutor in order to establish relevant facts of professional and ethical misconduct." The ICC would seem to be at a critical juncture as it strives both to carry out its important work and strengthen its legitimacy in the eyes of the world.

Developments in International Justice

A sculpture of a gun
            credit: Harris Institute
In response to recent events in the United States, the Inter-American Commission on Human Rights (IACHR) held a hearing in Bogotá, Colombia on “The Regulation of Gun Sales and Social Violence in the United States.” This hearing took place less than two weeks after the mass shooting at a high school in Parkland, Florida. The commission invited the US government, along with the Whitney R. Harris World Law Institute, the Center for American Progress, Amnesty International, and the Igarapé Institute, to present testimony. The hearing called attention to proven, effective measures that the US government might establish to reduce deaths from gun violence. The Harris Institute has also launched a new initiative examining US government responses to gun violence in light of US obligations under international human rights law.

Members of the WTO Appellate body standing together. There is a woman and two men in the front and three men in the back
   Members of the WTO Appellate Body
The Appellate Body of the World Trade Organization (WTO) recently dismissed an appeal presented by Russia regarding duties on vehicle imports from Germany and Italy, upholding the arguments presented by the European Union that anti-dumping duties imposed by Russia in 2013 on imports of European light commercial vehicles were illegal. Cecilia Malmström, the European Commissioner for Trade, responded to the decision: “I am glad to see that the WTO Appellate Body confirms the 2017 WTO ruling. It’s important that every member of the WTO plays by the rules. That’s what the EU is doing and we are expecting our partners to do the same. I’m looking forward to those measures being removed, so that our exports of commercial vehicles can benefit from a level-playing field on the Russian market.”

The European Court of Justice (ECJ) recently released a decision regarding the provisions of the Agreement on the Free Movement of Persons (AFMP) between Switzerland and the European Union. The Court found that a French national moving to Switzerland could not use the AFMP’s freedom of establishment provision to circumvent French exit taxation. As it has previously done, the ECJ chose a narrow solution by literally interpreting the agreement, and this decision furthermore illustrates the Court’s shift back to a stricter interpretation of the agreement. On the European Law Blog, Benedikt Pirker discusses the implications of the court’s interpretation of the agreement and what it might mean for Brexit.

A map of Europe
                         credit: European Commission

The logo of the Transnational Government of Tamil Eelam with the map of Sri LankaNearly nine years after the end of Sri Lanka’s 25-year civil war, serious efforts at justice may finally be materializing. President Maithripala Sirisena, who was elected three years ago on the promise of justice for victims of the bloody ethnic conflict, has announced the creation of an Office of Missing Persons that will investigate disappearances during the war. This move only came after Sirisena faced international censure for delays in implementing such investigations, and the announcement came ahead of a UN Human Rights Council session where Sri Lanka's rights record was to be discussed. The Transnational Government of Tamil Eelam (TGTE), an exiled political organization that represents Tamils in Sri Lanka and aspires to create an independent country in the north and east provinces, has recently reiterated that the Sri Lanka situation should be referred to the ICC. The TGTE claims that the Sri Lankan government committed war crimes and crimes against humanity against Tamil civilians in 2009. The UN Human Rights Council called on Sri Lanka to establish an accountability mechanism in the wake of the civil war, but a recent UN report claims that Sri Lankan authorities have not shown a capacity or willingness to address impunity. This has sparked a renewed movement for ICC referral.

The International Criminal Court has recently seen challenges to its authority from high-profile political figures.

Saif Al-Islam Gaddafi
Saif al-Islam Gaddafi (credit: Reuters)
Saif al-Islam Gaddafi, the son of the late Libyan dictator Muammar Gaddafi, will run for President of Libya later this year, according to the Libyan Popular Front party. Gaddafi was sentenced by a Tripoli court to death in absentia but later released in June of 2017 after passage of an amnesty law. However, Gaddafi is still wanted by the ICC for crimes against humanity, allegedly committed during his father’s rule when violent efforts were made to quell a 2011 rebellion. Although his whereabouts have been unknown since his release last year, Saif al-Islam Gaddafi is expected to address the Libyan public directly in the near future.

President of the Philippines Rodrigo Duterte also flouted the ICC's authority when his government deposited a notification of withdrawal from the Court's jurisdiction with the United Nations in March. Even though the withdrawal does not take effect for a year after submission, the ICC released a statement – using decidedly non-legal phrasing – in which it stated, “The Court regrets this development and encourages the Philippines to remain part of the ICC family.” The brutal “war on drugs” campaign, which Duterte’s administration launched in 2016, is currently under preliminary examination by the ICC. Chief Justice Maria Lourdes Sereno, one of Duterte’s biggest domestic adversaries, spoke out against this campaign and now faces impeachment.

A group of indigenous people from BrazilThe Inter-American Court of Human Rights (IACtHR) recently made a significant judgment concerning the rights of indigenous peoples. In Xucuru Indigenous People and its members v. Brazil, the Court found that the government of Brazil violated the right to collective property, the right of access to justice in a reasonable period, and the right to protection of the Xucuru indigenous people. In response to these violations, the IACtHR ordered Brazil to ensure the immediate right to property for the Xucuru, to complete sanitation projects in the Xucuru indigenous territory, and to pay reparations to the Xucuru.

The European Court of Human Rights (ECtHR) delivered two notable judgments last month.

A picture burning with a glad that is yellow with a red star and stripes being waved in the background
            credit: Toni Vilches
Stern Taulats and Roura Capellera v. Spain concerned the conviction of two Spanish nationals who set fire to a photo of the Spanish royal couple at a public demonstration in September 2007 during the King’s official visit to Girona. The Court unanimously held that there was a violation of Article 10 of the European Convention on Human Rights, which protects the freedom of expression.

The ECtHR also issued a landmark ruling in the case of Naït-Liman v. Switzerland. The case regarded Abdennacer Naït-Liman, a Tunisian national who gained asylum and citizenship in Switzerland after being tortured in Tunisia. Upon learning that his torturer was receiving medical treatment in Switzerland, Naït-Liman filed a complaint against him in a Swiss court, requesting compensation. That court dismissed the case because the act of torture took place outside of Switzerland and the defendant was furthermore not a Swiss national or resident. The ECtHR ruling upheld the domestic one, finding that states are not required to allow victims of torture to sue perpetrators in civil proceedings, in the absence of criminal proceedings, for compensation when the act of torture occurred outside of the territory of the State and the perpetrators are not nationals and are domiciled abroad.

A building that has two round ends with a center in the middle.In other ECtHR news, the Committee of Ministers of the Council of Europe – the main decision-making body for the Council of Europe – circulated earlier this year a draft of the Copenhagen Declaration, which proposes various ECtHR reforms. The Declaration will take center stage at the next round of reform talks to take place soon in Copenhagen. Although the ECtHR has responded positively to the draft, civil society and academics have expressed more negative views. Researcher and law clerk Sarah Lembrecht asserts that the Declaration will strengthen the power of the States Parties, while detracting from the independence of the court and the protection of victims. Róisín Pillay, Director of the International Commission of Jurists Europe Program, echoes this view, writing that the Declaration "contains proposals that carry significant risks for the independence and role of the Court, and for the consistent protection of [European] Convention rights across the Council of Europe region."

Ghana and Côte d’Ivoire recently agreed to implement the decision of the International Tribunal for the Law of the Sea (ITLOS), which will delimit the territorial sea, exclusive economic zone, and continental shelf boundaries beyond 200 nautical miles. President Akufo-Addo of Ghana and President Ouattara of Côte d’Ivoire issued a joint statement, where they “acknowledged the spirit of brotherliness with which the maritime dispute between the two countries was handled from the beginning” and “expressed their commitment to ensure the smooth implementation of the ruling by the Special Chamber of ITLOS on the delimitation of the maritime boundaries between the two countries.” In the statement, the leaders announced that a joint committee for the implementation of the judgment will be established.
A map of the Cote D'Ivoire

Economic Community of West African States logo, which has a map of Africa in the centerThe Court of Justice of the Economic Community of West African States (ECOWAS) and the African Court of Human and Peoples’ Rights (ACtHPR) have signed a memorandum of understanding, which establishes a framework of cooperation to strengthen the protection of human rights in Africa. It also includes an agreement between the courts to share information and research, to cooperate on joint projects, and to create a joint committee to ensure the effectiveness of cooperation between the courts. This agreement comes days after Judge Sylvain Oré, President of the ACtHPR, tasked his Court with providing more judicial decisions this year.

A logo with a scale that says "African Court on Human and Peoples' Rights

Khieu Samphan and Nuon Chea
Khieu Samphan and Nuon Chea
(L to R) (credit: Reuters)
The Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) recently found that accused persons Khieu Samphan and Nuon Chea are both fit to stand trial in Case No. 002/02. Earlier this year, the Court assigned two medical experts to assess the fitness of Khieu and Nuon to determine whether or not they remain competent and healthy enough to handle the proceedings. The experts concluded that Khieu and Nuon have no mental, cognitive, or physical ailments that would affect their ability to stand trial.

Publications and Resources of Interest

Screenshot of the AdHoc websiteBelow is this month's featured excerpt from the Ad Hoc Tribunals Oral History Project. This project aims to preserve the voices of individuals who worked to bring justice to the former Yugoslavia and Rwanda, and who contributed to the development and “institutionalization” of international criminal law during the early years of the ICTY and ICTR.

“I was basically — everything that you could plug in somewhere [laughter] was the IT guy’s job. It's a joke saying that the electric pencil sharpener sort of fell in my ambit as well. I was supposed to figure out a strategic approach to setting up the data systems, and making sure there was a reliable infrastructure deployed, and that people had the resources they needed and the training and so on and so forth. But I was also helping people with formatting tables in Microsoft Word, and that sort of thing... I didn't do it alone, for sure. It was a group of interesting individuals, a lot of cooks, actually. I'm not saying we actually got it right in the very beginning; probably [laughs] there were too many cooks. We actually had a number of people in-house, and their initial focus was more on the investigations and prosecutions side of things; how to get evidence in, how to catalogue it, how to have it available for people to review and analyze and see whether or not it actually was pertinent to their cases and their other investigations. That was quite an undertaking.”

David FalcesAccess the full oral history transcript of David Falces, ICTY Chief of Information Technology from 1994 to 2010, and ICTY Chief of Administration from 2010 to 2017. Visit the interview collection page to explore the full range of available transcripts and the Brandeis Institutional Repository to conduct a keyword search across the collection. We hope that educators will use the collection to teach their students about the Ad Hoc Tribunals and the critical role they played in the development of international criminal justice.

Book cover that says "Fighting and Victimhood in International Criminal Law"A recent book explores how international law treats both those who engage in war and those who suffer its harms. In Fighting and Victimhood in International Criminal Law (Routledge 2018), author Joanna Nicholson addresses questions like the following: How have international criminal courts and tribunals untangled lawful casualties of war from victims of war crimes? How have they determined who is a member of an organised armed group and who is not? What crimes can those who fight be victims of during hostilities? When does it become relevant in international criminal law that an alleged victim of a crime was a person hors de combat rather than a civilian? Can war crimes be committed against members of non-opposing forces? Can persons hors de combat be victims of crimes against humanity and genocide? What special considerations surround peacekeepers and child soldiers as victims of international crimes? The author carries out an in-depth exploration of case law from international criminal courts and tribunals to assess how they have dealt with such questions.

A statue of Lady Liberty holding scales and a sworTwo recent on-line symposia have addressed critical issues in contemporary international law:

Justice in Conflict hosted a symposium focused on hybrid justice, that is, justice as dispensed by the hybrid model of international criminal tribunals. A team of scholars explore the pitfalls and promises of hybrid institutions, analyzing issues such as the apparent "come-back" of this model, the independence and resilience of hybrid tribunals, their advantages, and lessons learned from earlier hybrid tribunals.

An Opinio Juris symposium explored the work, challenges and accomplishments of the Andean Tribunal of Justice (ATJ), as described in Transplanting International Courts: the Law and Politics of the Andean Tribunal of Justice (OUP 2017). Authors Karen J. Alter and Laurence R. Helfer introduced the symposium and subsequent posts by legal experts delved into their analysis of this somewhat obscure institution which nonetheless sheds light on the very nature of international courts. Commentators include former ATJ Judge and President Luis José Diez Canseco Núñez (BIIJ 2015).

International Justice in the News
is edited by Leigh Swigart, Director of Programs in International Justice and Society, and Lee Wilson '18.

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