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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.

Please note that we will take a vacation in August and bring our next issue to you on 1 September 2018.

July 2018

Featured News

Members of the Brandeis Institute for International JudgesJudges serving on the benches of 13 international courts and tribunals gathered in Oslo from 30 May to 2 June 2018 to discuss contemporary challenges to the legitimacy of their respective institutions. This was the 12th session of the Brandeis Institute for International Judges, a small and confidential event inaugurated by the International Center for Ethics, Justice, and Public Life in 2002. The 15 judges in attendance represented courts and tribunals from across the globe with criminal, human rights, and interstate dispute resolution jurisdictions. BIIJ 2018 was co-hosted with the PluriCourts Center for the Study of the Legitimate Roles of the Judiciary in the Global Order, a center of excellence of the University of Oslo Law Faculty. The aim of the institute was to examine carefully the various ways in which some international courts are currently experiencing “pushback,” be it from member states, civil society groups, or even their own parent bodies. Judges then discussed various strategies for countering their current difficulties and enhancing their institutions’ legitimacy in the eyes of diverse stakeholders. Learn more about the content and participants of BIIJ 2018 here. You can also read reflections on BIIJ 2018 by two Brandeis undergraduate students who served as interns during the institute. A list of recommendations by BIIJ participants for enhancing the legitimacy of international courts and tribunals is currently being finalized and will be disseminated in the near future.

People in the News

Jean-Pierre BembaSince 8 June 2018, the world of international criminal justice has been focused on the acquittal of Jean-Pierre Bemba, a former Congolese military commander, in a split decision by the International Criminal Court (ICC) Appeals Chamber. Originally charged with two counts of crimes against humanity (murder and rape) and three counts of war crimes (murder, rape and pillaging) – all allegedly committed on the territory of the Central African Republic in 2002-03 – Bemba’s 2016 conviction and 18-year prison sentence were overturned by a 3-2 vote. According to Alex Whiting, writing in Just Security, the Bemba conviction “established important precedents regarding the prosecution of sexual violence, as well as the ICC’s reliance on Article 28 of the Rome Statutes, which criminalizes the failure of commanders to prevent or repress crimes that they know their subordinates are committing.” These precedents, continues Whiting, have been “largely obliterated by the Appeals Chamber’s very controversial reversal.”  

Leila Sadat, in EJIL Talk!, offers one explanation of how the acquittal came about – namely, that “terrible things did indeed happen in the Central African Republic, but the Prosecutor failed to prove Bemba was responsible for them, and the acquittal – as surprising as it might be after 10 years of expensive and lengthy proceedings – was both necessary and proper given the role of the International Criminal Court in bringing the steady and dispassionate hand of justice to bloody and terrible conflicts.” But she finds this explanation unconvincing, pointing to the brevity of the majority opinion (the dissenting opinion is almost five times as long) and “its laconic discussion of difficult legal issues and de novo review of the facts of the case.” Sadat suggests that the majority opinion thus provides “little guidance for future cases, making it possible for this kind of procedural imbroglio to happen again.”

There has also been dismay on the part of those who looked to the Bemba case for some firm jurisprudence around sexual and gender-based violence. Susana SáCouto, in a piece from International Justice Monitor, notes that these crimes “often require a comprehensive analysis of context to understand how such violence is actually perpetrated in times of conflict or mass violence.” The majority opinion ruled that Bemba could not be held liable for acts committed by the troops under his command, a view which the dissenting opinion vigorously rejected, asserting that facts were selectively reviewed to arrive at such a decision.

There are, of course, those who approve of the acquittal. In an interview with Lawyers Weekly, Barrister Kate Gibson, co-counsel on Bemba’s defense team, noted that international institutions are only capable of just outcomes when judges are prepared to show courage, resist political pressure and allow fair trial rights to prevail. “You need very brave judges in [international courts], who are going to stand up and say ‘The rights of the accused should triumph over the political realities of this situation’,” Ms. Gibson said.

The long-term consequences of the Bemba acquittal, for the ICC and the evolution of international criminal law more generally, cannot be immediately known. In the meantime, to understand better the parameters of the Bemba appeals case, see this Open Society Foundations fact sheet.

Yuji IwasawaThe International Court of Justice (ICJ) has a new judge, Yuji Iwasawa of Japan. He is currently a professor of international law at the University of Tokyo graduate school, and also serves as chairperson of the UN Human Rights Committee. Iwasawa served as president of the Japanese Society of International Law, vice chair of the London-based International Law Association, and as judge and vice president of the Asian Development Bank Administrative Tribunal in Manila, Philippines. He holds an LL.B. from the University of Tokyo Faculty of Law, an LL.M. from Harvard Law School, and a S.J.D. from the University of Virginia. Iwasawa will complete the nine-year term of his compatriot Hisashi Owada, who resigned from the ICJ in June, citing advanced age and the fact that his daughter Masako, Crown Princess of Japan, will become the country’s Empress next year.

Nikki HaleyThe declaration by US Ambassador to the United Nations Nikki Haley that the Trump administration will withdraw from the Human Rights Council has created consternation in many quarters. Haley asserts that the Council has a "chronic bias" against Israel and called it a "hypocritical and self-serving organization that makes a mockery of human rights." According to The Guardian, activists claim the decision “puts the US on the wrong side of history and should be urgently reversed,” even as they concede that the Council is in need of reform. This rejection of the UN human rights body comes at a moment of vehement criticism of the US for its problematic treatment of migrants and asylum-seekers at the Mexican border, including the separation of parents and children which the UN called out as illegal under international law. President Trump’s subsequent executive order ending this practice, reports NBC News, “may put an end to the separation of migrant families, but it raises questions about where newly arriving families will stay and how the 2,300 children already separated will be reunited with their parents.”

The impact of both Haley’s declaration and the ongoing US migrant crisis are almost certainly related to the snubbing of the candidate put forward by the US to lead the UN’s International Organization of Migration. According to CBS News, this constitutes “a major blow to U.S. leadership of a body addressing one of the world's most pressing issues - and only the second time that it won't be run by an American since 1951.”

Ujal SIngh
      Ujal Singh at BIIJ 2018
While delivering an annual report in a public forum, World Trade Organization Appellate Body Chair Ujal Singh (BIIJ 2016 and 2018) recently pinpointed the difficulties currently facing his organization. These include “unprecedented challenges” arising from the increasing number and complexity of appeals that have been filed, along with the ongoing stalemate over the appointment of new Appellate Body members. Singh is urging WTO members to address these issues as a priority. Read the full text of his address here.

Boris BeckerFormer tennis champion Boris Becker recently claimed that he was immune from bankruptcy proceedings in the United Kingdom due to his status as diplomat of the Central African Republic (CAR). According to The Guardian, “[t]he German sportsman is involved in a long-running bankruptcy dispute, but last week his lawyers said that under the Vienna convention he could not be subjected to any legal proceedings without the consent of the British government and ministers in Bangui, because he is the CAR’s attaché to the European Union on sporting, cultural and humanitarian affairs.” The foreign minister of CAR asserts that the Central African passport held by Becker, who has never visited his country, is fake with a falsified signature.

Developments in International Justice

An old person's face with the words "Elder Abuse. See it. Stop it. Prevent it."On the occasion of World Elder Abuse Awareness Day, June 15, states and other stakeholders were urged to ensure the protection of the rights of older persons.  As reported in a press release of the Organization of American States, “[t]he Inter-American Commission on Human Rights has observed the situation of older persons in the region, identifying important issues such as violence against them, both in public and private care homes, as well as in the same family, through physical violence , psychological and sexual abuse and neglect. On the other hand, the Independent Expert on the enjoyment of all human rights by older persons of the United Nations has observed that abuse in old age can take many forms, including discrimination in the public sphere, language discrimination, isolation, neglect, abandonment, economic exploitation and restriction of access to basic needs.”

The rights of young people are also under scrutiny, as demonstrated by a recent decision of the African Court of Human and Peoples’ Rights (ACtHPR) on the minimum age of marriage for girls, among other issues. According to the International Justice Resource Center, the ACtHPR ruled in APDF and IHRDA v. Republic of Mali that “Mali’s Persons and Family Code violates international human rights standards on the State obligation to establish a minimum age of marriage for girl children; the right to consent to marriage; the right to inheritance; and the State obligation to eliminate harmful social and cultural practices for women, girl children, and children born out of wedlock.”

Women protesting
           credit: Love Our Girls
Perhaps surprisingly, all states in the United States allowed child marriage – in practice if not by law – until recently, when Delaware became the first state to ban all child marriages without exception. As reported in a New York Times op-ed, child marriage in the US has often taken place after sexual relations with a minor. “Statutory rape is thus sanctioned by the state as marriage, and the abuser ends up not in handcuffs but showered with wedding gifts.”

European Court of Human Rights Building: two circle buildings connected by a smaller oneThe European Court of Human Rights (ECtHR) has found two European states complicit in hosting so-called “black sites” where the US Central Intelligence Agency (CIA) detained and tortured persons suspected of acts of terrorism. According to Strasbourg Observers, “the ECtHR ruled in the cases of Al Nashiri v. Romania and Abu Zubaydah v. Lithuania that the Contracting States Romania and Lithuania violated multiple provisions of the European Convention on Human Rights (ECHR), among others the substantive and procedural limb of Art. 3 ECHR – the prohibition of torture and inhuman and degrading treatment or punishment. Neither in Al Nashiri nor in Abu Zubaydah did public authorities from Romania or Lithuania themselves inflict ill-treatment on the applicants who were under suspicion to be involved in terrorist activities. The Strasbourg Court found a substantive breach of Art. 3 ECHR on the basis of the conduct of a third party, the CIA of the USA, at secret detention sites within the jurisdictions of Romania and Lithuania.” The Open Society Foundations (OSF), which represented Al-Nishiri before the ECtHR, note that Romania remains silent about its responsibility in the wake of the ECtHR decision. OSF notes, however, that “[p]erhaps it is not surprising that Romanian government officials feel they can brush off the past in this way, given that one of the key CIA players involved in al-Nashiri’s torture—Gina Haspel—is now running the CIA.” To learn more about cases involving secret detention sites, read this ECtHR factsheet.

Radomir SusnjarFrance has extradited an ethnic Serb, Radomir Susnjar, to Bosnia where he stands accused of participating in the burning alive of more than 50 Muslim civilians in the 1990’s. Susnjar was identified as living in France by Bosnian prosecutors after being charged in 2017 by a Sarajevo court. According to Expatica, the fire in question “was one of a number of atrocities during the Bosnian war for which two Bosnian Serb former paramilitaries were sentenced by the International Criminal Tribunal for the former Yugoslavia.”

The International Court of Justice (ICJ) recently concluded its public hearings in the case of Application of the Convention on the Elimination of all Forms of Racial Discrimination (Qatar v. United Arab Emirates). Qatar filed the lawsuit a year after the UAE and three other Arab nations began a blockade of Doha as part of a diplomatic dispute. It has requested that provisional measures be implemented for an immediate remedy to the situation. UAE rejects the allegations and has announced that it is filing a separate grievance at the ICJ against Qatar. Read more about the case at the ICJ website.

Map of Qatar

European Court of Justice BuildingThe Grand Chamber of the European Court of Justice recently ruled that the term “spouse,” for the purpose of the grant of family reunification rights under European Union free movement law, includes the same-sex spouse of a Union citizen who has moved between Member States. This means that in such situations, the Union citizen can require the State of destination to admit within its territory his/her same-sex spouse, irrespective of whether that State has opened marriage to same-sex couples within its territory. This judgment in the Coman case was much anticipated and will have significant consequences, according to European Law Blog: “This is a landmark ruling of great constitutional importance which has the potential of changing the legal landscape for the recognition of same-sex relationships within the EU. It is, also, a judgment which is hugely significant at a symbolic level, as through it the EU’s supreme court made it clear that it considers same-sex marriages as equal to opposite-sex marriages, in this way reversing the discriminatory stance it had adopted in the early 00’s…”

Publications and Resources of Interest

A woman and two children holding signs that say "Homeless People"Philip Alston, the UN special rapporteur on extreme poverty and human rights, has issued a scathing report on conditions in the US. The report outlines problematic governmental policies that include the undermining of democracy, lack of basic social protections, reliance on criminalization to conceal the underlying poverty problem, persistent discrimination and poverty, confused and counterproductive drug policies, and environmental pollution. The report targets the Trump administration, stating: “For almost five decades the overall policy response has been neglectful at best, but the policies pursued over the past year seem deliberately designed to remove basic protections from the poorest, punish those who are not in employment and make even basic health care into a privilege to be earned rather than a right of citizenship.” Read the December 2017 statement by Alston upon the conclusion of his investigatory visit to the US. Conservatives in the US have responded that the report is based on data collected before Trump came into office and thus claim that the conditions outlined cannot be laid at his door. The official US response to the UN report also defends contemporary policies.

An LGBTQ rainbow flagThe Hon. Mme. Justice Désirée P. Bernard, retired judge of the Caribbean Court of Justice, has recently prepared a detailed overview of the state of the LGBT community in the Caribbean. Written at the request of the Royal Commonwealth Society, which just celebrated its 150th anniversary, Judge Bernard’s paper provides an important synthesis of both local laws concerning Lesbian, Gay, Bisexual and Transgender persons in the region and jurisprudence concerning their rights. Read her paper, entitled “Equality for the LGBT Community,” here.

Cyril Ramaphosa
                      Pres. Ramaphosa

In a recent op-ed, Richard Goldstone, former chief prosecutor of the International Criminal Tribunal for the former Yugoslavia and a member of the Africa Group for Justice and Accountability, and Mark Kersten, deputy director of the Wayamo Foundation and a fellow at the Munk School of Global Affairs, urge South African President Cyril Ramaphosa to maintain his country’s membership in the International Criminal Court. The authors write, “South Africa is at a crossroads. By working to ensure that any effort towards the withdrawal of South Africa from the ICC is defeated in Parliament by democratic and popular means, Ramaphosa and the government of South Africa would boost understanding of the ICC, identify ways to improve the court’s work and functioning, and demonstrate true global leadership. That is surely in the interest of a new government seeking to make its mark on the world stage and ensuring its election in the next polls. It is undoubtedly in the interest of all South Africans.”

Book "Handbook of Cultural Security"A new book, Handbook on Cultural Security (Elgar 2018), “aims to heighten our awareness of the unique and delicate interplay between ‘Culture’ and ‘Society’ in the age of globalization.” Edited by Yasushi Watanabe of Keio University in Japan, the Handbook examines cultural security as an emerging concept and provides a platform for future debates in both academic and policy fields.

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

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