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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.

March 2018

Featured News

Report Cover that says "Trump's First Year: How Resilient is Liberal Democracy in the US?"What is the current state of democracy in the United States? A new report from the Carr Center for Human Rights Policy at the Harvard Kennedy School, "Trump's First Year: How Resilient is Liberal Democracy in the US?", attempts to answer this question. As the report notes, "Declining levels of political participation and public confidence in government in the US are not new, but the populist forces that propelled the election of Donald Trump in 2016 signaled a new level of public disillusionment with democratic politics as usual." While the US situation differs from illiberal democracies such as those found in Hungary, Poland or Turkey, the report asserts that the relative strength of liberal democracy in the US is in question.

John ShattuckThe principal co-author of the report is John Shattuck, President of Central European University from 2009 to 2016, Assistant Secretary of State for Democracy, Human Rights and Labor under US President Clinton, and currently Professor at the Fletcher School of Law and Diplomacy at Tufts University and Senior Fellow at the Harvard Kennedy School of Government. In his capacity as Chair of the Advisory Board of Brandeis' International Center for Ethics, Justice and Public Life, Ambassador Shattuck will open a symposium on 12 March 2018 on the Brandeis campus entitled "Democracies in Peril: The Role of the University." The public is warmly welcomed to attend this event, the details of which are available here.

People in the News

Persons associated with the International Court of Justice (ICJ) have lately been much in the news.

Five judges recently began their new nine-year terms at the ICJ, with the sole first-time judge, Nawaf Salam (Lebanon), being officially sworn in. The newly constituted bench then chose its new leaders. An ICJ press release reports that Judge Abdulqawi Ahmed Yusuf (Somalia) was elected President and Judge Xue Hanqin (China) was elected Vice President, both for a period of three years.

Judge Hisashi Owada
        Judge Hisashi Owada
The Court will also lose one of its long-standing members, Judge Hisashi Owada (Japan) – a frequent participant of the Brandeis Institute for International Judges – when he steps down in June. According to the Japan Times, Judge Owada’s decision is at least partially linked to the fact that his daughter, wife of the Crown Prince of Japan, will shortly become Empress when her husband succeeds the soon-to-abdicate Emperor Akihito. The Japanese government intends to present Professor Yuji Iwasawa as a candidate to finish out Judge Owada’s ICJ term.

Judge Mohamed ShahbuddeenFinally, Judge Mohamed Shahabuddeen (Guyana) recently passed away. He sat on the ICJ bench from 1988 to 1997, and then joined the International Criminal Tribunal for the former Yugoslavia (ICTY) from 1997 to 2005, during which time he served twice as Vice President. In recent days, Guyanese President David Granger and ICJ/former ICTY Judge Patrick Robinson (Jamaica) have expressed their condolences and paid tribute to the accomplishments of their departed colleague.

Silvia Fernandez and David Scheffer holding an award together
Silvia Fernández and
David Scheffer
In the last few weeks of her term as President and Judge of the International Criminal Court (ICC), Judge Silvia Fernández de Gurmendi (BIIJ 2016) was awarded the Global Jurist of the Year 2017 Award. This award was presented to her by Northwestern University Pritzker School of Law’s Center for International Human Rights. Ambassador David Scheffer, the center’s Director, stated in his presentation of the award that “Judge Fernández has played a critical role in speeding up the proceedings while still protecting the rights of the accused. Under her leadership as president, the Court has significantly improved the efficiency and timelines of its trial work. That is critical in garnering political support for the ICC today and in the future.”

David Schwendiman
        Credit: Balkan Insight
Special Prosecutor David Schwendiman will step down at the end of this month from his position at the Kosovo Specialist Chambers and Specialist Prosecutor’s Office. His departure is prompted by the expiration of his fixed three-year term as Senior Foreign Service Officer in the US State Department. Schwendiman asserts that this news does not “signal a change in policy or commitment to the work of the Specialist Prosecutor’s Office on the part of the US or the European Union or the international community as a whole.” However, legal experts surmise that indictments will be delayed and that Schwendiman’s expertise will be difficult to replace. In the interim, Kwai Hong Ip, Schwendiman’s deputy, will assume the responsibilities of Special Prosecutor. Read more about Schwendiman’s departure here.

Tomislav Kovac
            Credit: YouTube
The Bosnian domestic war crimes tribunal recently indicted Tomislav Kovač, the former Bosnian Serb police chief and former Interior Minister of the Serb Republic of Bosnia. Kovač is accused of committing acts of genocide for his role in the 1995 Srebrenica massacre, in which an estimated 8,000 Muslim men and boys were killed. It is alleged that the Bosnian Serb police, under the supervision of Kovač, hid evidence of the massacre “by exhuming the bodily remains of the victims from primary mass graves and reburying them in unmarked secondary mass graves.” Kovač denied these claims in a 2016 trial against five former Bosnian Serb fighters. Even though Kovač currently resides in Serbia, with dual citizenship in Bosnia-Herzegovina, a cooperation protocol for war crime cases between the two countries permits Kovač to be prosecuted.

Peruvian President Alberto Fujimori
            Credit: Getty Images
Former Peruvian President Alberto Fujimori, who was recently granted a medical pardon after serving less than half of his 25-year sentence following a 2009 conviction for crimes against humanity, has now been ordered to stand trial for the killing of six farmers in 1992. This case comes just a month after his humanitarian release, which raised an outcry in human rights circles. Indeed, an application to the Inter-American Court of Human Rights (IACtHR) seeks to annul his release, calling it arbitrary and illegal, and families of human rights abuse victims, along with Amnesty International, recently had the opportunity to testify in an IACtHR hearing about the impact of Fujimori's crimes. But even though there is a vocal minority against his pardon, a poll has revealed that around 65% of Peruvians support Fujimori’s release. The new charges against him are not, however, affected by the pardon.

Developments in International Justice

Logo of the European Court of Human Rights. Two buildings in white in the background with "European Court of Human Rights Cour Europeenne Des Droits De L'Homme" written underneathTurkey and France have featured prominently in recent decisions of the European Court of Human Rights (ECtHR).

The case of Mehmet Günay et Güllü Günay v. Turkey dealt with allegations of medical negligence in the death of the plaintiffs’ daughter just ten days after a medical operation. The Court found a violation of Article 6 § 1, the right to a fair trial within a reasonable time – it had taken more than seven years for the case to reach the domestic courts – but rejected the applicants’ claim that Article 2, the right to life, had been violated. In another case dealing with medical issues, S.A. v. Turkey, the Court found that the applicant's claim that his son was physically harmed by an allegedly botched circumcision was inadmissible given that there was no medical evidence supporting this view.

The case of Ben Faiza v. France concerned the surveillance measures used on the vehicle and telephone records of the plaintiff during a criminal investigation into his involvement in drug-trafficking offences. The ECtHR found a violation of Article 8, the right to respect for private and family life, in the geolocation of Ben Faiza’s vehicle, but found no violation of the same article in the order that authorized surveillance of his telephone activity. In the case of Charron and Merle-Montet v. France, a lesbian couple applied for medically assisted artificial insemination, but their application was rejected on the grounds that it was not available to same-sex couples. The plaintiffs claimed that the rejection of their application was a violation of Article 8, the right to respect for private and family life, and Article 10, the prohibition of discrimination. The Court declared the application inadmissible due to failure by the plaintiffs to have first exhausted domestic remedies.

ICC Prosecutor Fatou Bensouda recently announced the opening of preliminary examinations in both Venezuela and the Philippines. The former examination centers around violent state repression in the context of demonstrations and related political unrest, while the latter involves crimes allegedly committed in the context of the "war on drugs" campaign launched by the Government of the Philippines.

Shortly after the announcement, the Inter-American Commission on Human Rights (IACHR) presented its report on the human rights situation in Venezuela in 2016 and 2017. A group of independent UN experts released a statement on different problems in Venezuela, calling on the government to resolve the issues causing “starvation, deprivation of necessary medicine, lack of necessary hygiene products, and deterioration of living conditions for a large number
President Rodrigo Duterte
President Rodrigo Duterte (Credit: Reuters)
of Venezuelans.” Just a day after Bensouda’s statement, President Rodrigo Duterte of the Philippines declared that he was beyond the jurisdiction of the ICC and threatened to withdraw from the Rome Statute.

In other ICC news, following instructions of the General Commander of the Libyan National Army early last month, General Mahmoud al-Werfalli, who is wanted by the ICC since last August, surrendered himself to the military police in order that ICC investigations might be completed. Just a day later, after demonstrations in Benghazi supporting al-Werfalli, he was released on bail and the military police assured the public that they will not hand him over to the ICC.

The Prosecution at the Special Tribunal for Lebanon (STL) has concluded its presentation of evidence in Ayyash et al., the Tribunal's central case, which included evidence from over 260 individual witnesses and almost 2500 exhibits in documentary form. The lawyer of Hussein Hassan Oneissi’s lawyer, one of the accused, has since called on STL judges to acquit his client due to insufficient evidence. Oneissi is charged with being an accomplice and co-conspirator in the 2005 assassination of former Lebanese Prime Minister Rafik Hariri. The lawyers of the other accused in the case have not yet called for acquittals. None of the four accused persons are in custody.

Francois Roux
    François Roux
It is perhaps an inopportune moment for the departure of François Roux, Head of the STL Defense Office, who has been with the Tribunal since it opened nine years ago. He has not been reappointed since he has passed the retirement age set at 65 by the STL Staff Rules and Regulations. Judge Ivana Hrdličková, President of the STL, praised her colleague, saying, “Francois Roux went to an enormous effort to make the Defence Office at the STL – a novelty amongst international criminal tribunals upon its creation – a fully independent, highly professional organ, dedicated to promoting the equality of arms in judicial proceedings and to ensure that it became a landmark institution for international criminal justice.”

Photo of a court room with a scale in the center of the photo
             Credit: Channels TV
The Court of Justice of the Economic Community of West African States (ECOWAS) has delivered a landmark judgment in the case of FAJ and Others v. The Gambia. The court found that the rights of four exiled Gambian journalists were violated by Gambian authorities in the enforcement of laws that prevent free speech. The Court called on The Gambia to immediately repeal and amend criminal laws on libel, sedition, and false news that interfere with journalistic practices. These laws were instituted during the long rule of former President Yahya Jammeh, who has now himself been forced into exile.

The significant nature of the judgment does not reside solely, however, in the Court’s protection of free speech. The Court has also clarified that there is no time limit on filing complaints for human rights violations. The Court has recognized that there is a possibility of “continuous harm,” as in this case where exile is a violation of an ongoing nature. According to an IntLawGrrls blogpost, this ruling regarding time limits for filing complaints makes the ECOWAS Court the most progressive human rights court in Africa. It also is more progressive than the Inter-American Court of Human Rights and the European Court of Human Rights, which currently impose time limits of six months to receive applications concerning alleged violations.

An outside picture of the building of the Court of Justice of the European UnionThe Court of Justice of the European Union (CJEU) recently released a judgement in Case C-359/16 mer Altun and Others, which rules that national courts can disregard social security certificates that are issued to workers within the European Union fraudulently. The judgment also determined that no circumstances should “lead to individuals being able to rely on EU law for abusive or fraudulent ends, that being a general principle of EU law.” The case was presented to the Court after the Belgian government found that a Belgian company contracted Bulgarian workers and illegally issued social security certificates.

A photo that has the word "Brexit" in the middle. The left half is the European Union flag (blue with yellow stars) and the right half is the United Kingdom flag (blue with red and white cross and stripes)In other CJEU news, the impending withdrawal of the United Kingdom from the European Union (EU) has led a district court in Amsterdam to ask the Court for clarification about whether EU citizenship will be immediately lost when a state leaves the EU. Early last month, the Dutch court found that “there is reason to doubt the correctness of the interpretation of Article 20 TFEU that the loss of the status of [a national] of an EU Member State leads to loss of EU citizenship as well.”  For more information about the future of EU citizenship for British nationals, read a European Law blogpost.

The African Union has established a trust fund for the victims of former Chadian dictator Hissène Habré, who have gone decades without compensation for their suffering. In 2016, a specially constituted hybrid international court located in Senegal convicted Habré, who ruled Chad from 1982 to 1990, of crimes against humanity for killing over 40,000 people, imprisoning another 54,000, and emptying Chad’s treasury of $150 million before fleeing the country. Upon his conviction, Habré was ordered to pay $153 million in compensation, but failure to locate all of his assets has delayed reparations to his victims. According to The
Hissene Habre shaking hands with President Ronal Reagan in front of the White House
Habré and US President Reagan at the White
House in 1987 (Credit: Foreign Policy)
 Guardian, the trust fund "will also take voluntary contributions from any country, individual or body that wishes to make them. France and the US, in particular, are expected to contribute, as they were pivotal in bringing Habré to power".  

The International Court of Justice (ICJ) has recently been focused on border disputes in Latin America.

Early last month, the ICJ released its judgement in the case of Costa Rica v. Nicaragua with regard to the maritime delimitation in the Caribbean Sea and the Pacific Ocean and the land boundary in the northern part of Isla Portillos. The ICJ established a course for the maritime boundaries between the two countries. The Court also found that Costa Rica has sovereignty over the northern part of Isla Portillos and asserted that Nicaragua must remove its military camp from Costa Rica’s territory.
A map of Costa Rica and Nicaragua
           Costa Rica v. Nicaragua Maritime Delimitation

A map of Venezuela and GuyanaUN Secretary-General Antonio Guterres has also announced his referral of the border dispute between Venezuela and Guyana to the ICJ. This decision comes after decades of United Nations-led mediation. In the original 1966 Geneva Agreement between Venezuela and the United Kingdom, which was then sovereign over Guyana, both countries would appeal to UN institutions to aid in resolving future border disputes. However, given that the agreement was not between the two current governments, some scholars believe that an ICJ decision may be rejected by one or even both parties.

Publications and Resources of Interest

A screenshot of the Ad Hoc Tribunals Oral History Project website Below 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.

“You know, we have the Ad Hoc Tribunals basically closing, if not already closed, but with some residual work to complete. And the ICC in permanent premises, and now on the scene but having had difficulty with several cases. You have the challenges of financing and establishing mixed courts or hybrid courts, institutions that I strongly support and can be valuable. And then, of course, there are situations where no independent court has jurisdiction at all, like a Syria. So with all of the difficulties, many people find that the environment, and certainly the prognosis, for international justice today is much bleaker than one might have predicted even a decade ago. However, I think that the expectations for justice have been firmly established, and it is being demanded in situation after situation, even where there are active peace processes. If you're in Colombia, it's impossible to sell a peace process to the public, and to ratify an agreement, let alone avoid the ICC, if you don’t have justice as part of it. Maybe there are alternative sentences and other approaches, but still you couldn't sell peace without justice.”

Stephen RappAccess the full oral history transcript of Stephen Rapp: Senior Trial Attorney at the ICTR from 2001 to 2005; Chief of Prosecutions at the ICTR from 2005 to 2007; Chief Prosecutor of the Special Court for Sierra Leone from 2007 to 2009; and U.S. Ambassador-at-Large for War Crimes from 2009 to 2015. 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.

A diagram of the ICC statute. It has 7 circles on the outside with these phrases: CLICC, Preparatory Works, Case Law, Elements Digest, ICC Elements of Crime, Means of Proof Digest, and Lectures
                         credit: CICC
A new online resource, centered around the Rome Statute of the International Criminal Court, is now available to the public: Lexsitus. This new tool, described by the Coalition for the International Criminal Court as "a new open access, global commons," integrates, both visually and functionally, access to lectures, commentary, case law, preparatory works, and digests. Lexsitus was developed by the Centre for International Law Research and Policy (CILRAP), in partnership with Norway, the International Nuremberg Principles Academy, HELM Studio and Mithya Labs.

A book cover with the title "Is International Law International" and a map of the worldA recent online symposium, co-hosted by Opinio Juris and EJIL Talk!, discussed a new work by Anthea Roberts, Is International Law International? (Oxford University Press, 2017). According to the ASIL Book Awards Committee that granted the book a prize, “Professor Roberts takes us along as she chases the title’s question down an international law rabbit-hole to reveal a topsy-turvy world in which international law is parochial and the invisible college is rendered visible. Roberts turns a beguilingly simple question into a globe-trotting, multi-method quest for a map of international law’s players and meanings. Simultaneously irreverent and serious-minded, Roberts develops an original research agenda that takes her and the reader through the migratory flows of international lawyers around the world, the divergent methods through which they are educated, and the different professional tracks through which they are socialized.” In the symposium, six international lawyers weigh in on Roberts’ interpretation of their unique professional sphere.

Book cover of "The Founders"A new book, The Founders: Four Pioneering Individuals Who Launched the First Modern-Era International Criminal Tribunals (Cambridge University Press, 2018), chronicles the experiences of Richard Goldstone (ICTY and ICTR), Stephen Crane (Special Court for Sierra Leone), Robert Petit (Extraordinary Chambers in the Courts of Cambodia), and Luis Moreno Ocampo (ICC). The publisher notes, “With no blueprint and little precedent, each prosecutor became a pathfinder. The Founders offers behind-the-scenes, first-hand stories of these historic journeys, the challenges the prosecutors faced, the obstacles they overcame, and the successes they achieved.”

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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