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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.

May 2018

People in the News

Dunja Mijatovic
                 Dunja Mijatović
Two women from the Balkans region have recently assumed prominent positions in Council of Europe (COE) institutions.  On 1 April, Dunja Mijatović of Bosnia and Herzegovina – recognized for her twenty years of experience working on human rights, particularly the right to freedom of expression – took office as the first female Commissioner for Human Rights of the COE. In late April, Ivana Jelić was elected to a nine-year term as judge of the European Court of Human Rights in respect of Montenegro. Both women were selected by the COE’s Parliamentary Assembly.

Elizabeth Ibanda-Nahamya
              credit: New Vision
The United Nations Mechanism for International Criminal Tribunals (MICT), the residual mechanism for the International Criminal Tribunals for the former Yugoslavia and Rwanda, also has a new judge. Elizabeth Ibanda-Nahamya of Uganda will replace her countrywoman Solomy Balungi Bossa (Brandeis Institute for International Judges 2012 & 2016), who was recently sworn in as judge of the International Criminal Court. Ms. Ibanda-Nahamya previously served as Judge at the International Crimes Division of the High Court of Uganda, and since 2013 she has been serving on the Roster of Judges for the Residual Special Court for Sierra Leone. She also held a number of legal positions at the Special Court for Sierra Leone from 2004 to 2008 and at the International Criminal Tribunal for Rwanda from 1996 to 2004.

Vojislav SeseljIn other MICT news, its Appeals Chamber recently issued a judgment in the case of former Serbian political leader Vojislav Šešelj. According to a MICT press release, Trial Chamber III of the International Criminal Tribunal for the former Yugoslavia acquitted Mr. Šešelj in 2016 of crimes against humanity and violations of the laws or customs of war. At trial, the Prosecution alleged that Mr. Šešelj planned, ordered, instigated, committed, including through a joint criminal enterprise, or otherwise aided and abetted these crimes. The Appeals Chamber partly reversed Mr. Šešelj’s acquittal, dismissed the remainder of the Prosecution’s appeal, and entered convictions against Šešelj for various crimes against humanity. In particular, the Appeals Chamber found that the Trial Chamber erred in not holding Mr. Šešelj responsible for a speech he gave in Hrtkovci, Vojvodina (Serbia) on 6 May 1992 calling for the expulsion of the non-Serbian population. Balkan Insight provides further interesting details: “Šešelj, who is an MP in the Serbian parliament, was not present in the courtroom for the verdict. He was temporarily released for cancer treatment in November 2014 and has refused to return to The Hague since then. Serbia has also refused to extradite him, despite an Interpol ‘red notice’ for his arrest. After returning to Serbia, Šešelj resumed his political career, held a series of nationalist rallies, and repeatedly mocked the Hague Tribunal in public.”

Gonzalo Sanchez de Lozada
         Gonzalo Sánchez de Lozada,
         credit: Reuters
Former Bolivian president, Gonzalo Sánchez de Lozada, and his former defense minister, José Carlos Sánchez Berzaín, have been found responsible in a U.S. federal court in Florida for extrajudicial killings carried out by the Bolivian military. More than 50 Bolivian citizens, members of the Aymara community, were killed and hundreds more injured during a period of civil unrest in September and October 2003. According to the Center for Constitutional Rights, “The decision comes after a ten-year legal battle spearheaded by family members of eight people killed in what is known in Bolivia as the ‘Gas War.’ It marked the first time in U.S. history a former head of state has sat before his accusers in a U.S. human rights trial. The jury awarded a total of $10 million in compensatory damages to the plaintiffs.” Both former Bolivian leaders have lived in the U.S. since they fled Bolivia following the 2003 massacre.

Al Hassan
                       Al Hassan
Proceedings against the second person accused of international crimes in Mali are now underway at the International Criminal Court (ICC). Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Al Hassan) was surrendered to the ICC by the Malian authorities in late March and was transferred to the Court’s detention center. Al Hassan is suspected of war crimes and crimes against humanity, including crimes of gender-based violence, allegedly committed in 2012 and 2013 in Timbuktu, Mali. His initial appearance before the Court took place shortly after his arrival in The Hague. The first accused person in the Malian situation, Ahmad Al Faqi Al Mahdi, pled guilty to the war crime of directing attacks against religious and historical monuments in Timbuktu in 2012 and was convicted in 2016.  

The proceedings against Al Hassan will require the ICC, argues commentator Rosemary Grey, to finally rule on the meaning of the word “gender” as used in its Statute. “This is not the first time that the ICC has heard allegations of crimes which, on their face, discriminate on gender grounds. But so long as Prosecutor Bensouda doesn’t omit the charge of gender-based persecution at the confirmation stage (as her predecessor did in the only other case where gender-based persecution was initially charged), this will be the Court’s first opportunity to consider this crime.”

Samuel MoynThe human rights movement has failed. Or so argues Yale University Professor Samuel Moyn in a recent New York Times op-ed. He suggests that human rights activists have largely left aside issues of inequality, focusing on civil and political instead of economic and social rights. Indeed, the human rights movement flourished under the same neoliberal policies that have exacerbated inequality. Moyn notes that “activism can awaken people to the problems with supporting abusive governments. But if lectures about moral obligations made an enormous difference, the world would already look much better. Instead, those who care about human rights need to take seriously the forces that lead so many people to vote in majoritarian strongmen in the first place.” Moyn’s full treatment of this subject may be read in his recently published book, Not Enough: Human Rights in an Unequal World (Harvard University Press, 2018).

Developments in International Justice

A group of people standing outside the African Court on Human and Peoples' Rights
                   Credit: ACtHPR
The African Court on Human and Peoples’ Rights (ACtHPR) has issued a binding and unanimous decision on the right to nationality. Anudo v. United Republic of Tanzania involved a man who, according to the Open Society Foundations, “found himself forced to live in the no-man’s land between the borders of Tanzania and Kenya because of a citizenship dispute.” The International Justice Resource Center reports that Tanzania “violated Anudo Ochieng Anudo’s right not to be arbitrarily deprived of his nationality, right not to be arbitrarily expelled, and right to be heard by a judge; in finding these violations, the Court relied on Article 15 of the Universal Declaration of Human Rights (UDHR), Article 13 of the International Covenant on Civil and Political Rights (ICCPR), and Article 7 of the ICCPR, respectively.” The ACtHPR, which can refer not only to the African Charter on Human and Peoples’ Rights but to any other relevant human rights instrument, cited the principle that a state cannot turn a citizen into a foreigner for the sole purpose of expelling him.

The European Court of Justice buildingTwo recent rulings of the European Court of Justice (ECJ) address transport industry matters. The Court ruled that a 2016 “wildcat strike” by a significant part of the flight staff of the German airline TUlfly did not constitute “extraordinary circumstances” – as defined by EU regulation on air passenger rights – which would release the airline from its obligation to pay passenger compensation for delays and cancelled flights. Read more in an ECJ press release. The Court has also ruled on whether unlicensed ridesharing activities – such as those offered by UberPOP – can be subject to criminal law sanctions. The ECJ considers that Uber is a transport service and not, as the company argues, an e-commerce service. As noted in a post on ECJ Uber-related cases in the European Law Blog, “Member States thus remain responsible for its regulation – and potential criminalisation – in the absence of EU secondary legislation on the matter.”

A map of GuatemalaIn a recent plebiscite, the Guatemalan government asked voters to decide whether any legal claims by Guatemala against Belize relating to its territories – a dispute that goes back two centuries – "should be submitted to the International Court of Justice (ICJ) for final settlement" and boundary determination. Although voter turnout was low, those who participated overwhelmingly voted in favor of this form of resolution. The two nations agreed in 2008 to send the dispute to The Hague-based ICJ, if the people of both countries approved. Belize has not yet fixed a date for its referendum on the issue, although officials say it could take place next year. Read more from Yahoo!

The European Court of Human Right's Building, which is two circles connected by a smaller buildingThe European Court of Human Rights (ECtHR) has seen some important developments in the last month that will impact its work for years to come.

An amended version of the Copenhagen Declaration, a document outlining reforms to be made to the European Convention of Human Rights system, has been formally adopted by all 47 members of the Council of Europe (COE). A draft Declaration was highly criticized by human rights organizations, civil society actors and even COE member states. According to Strasbourg Observers, they “expressed grave concern about the harm the draft Copenhagen Declaration could do to the Court’s independence and authority, about its misconstruction of the Court’s jurisdiction and role (especially when defining the Convention system’s subsidiary nature), its potential to undermine the universality of human rights, and its objective of installing new channels of ‘dialogue’, which could have the effect of exposing the Court to undue political pressure by national governments.” The final Declaration is almost entirely rewritten and has a very different tone. It also articulates that the ECtHR must be accorded a sufficient budget to execute its work.

Following France’s recent ratification of Protocol 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms, the ECtHR’s jurisdiction will be extended as of 1 August 2018 to include advisory jurisdiction for States that have ratified Protocol 16. According to a Court press release, “[t]his treaty will enable [higher courts of these States] to transmit to the Court requests for advisory opinions on questions of principle regarding the interpretation or application of the rights and freedoms set forth in the [European] Convention. Such requests must concern cases pending before the national courts. The advisory opinions issued by the Court will be reasoned and non-binding.” Protocol 16 brings the European Court’s jurisdiction in line with that of its sister regional human rights courts, the African Court of Human and Peoples’ Rights and the Inter-American Court of Human Rights.

A rocket being shot into SyriaThe International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (IIIM), a UN quasi-prosecutorial body, has issued a report indicating that they have compiled overwhelming evidence of atrocities having been committed by all sides in the Syria war. According to Jurist, “[t]he report states that the volume of material gathered, which includes information on the role played by social media during the war, is ‘unprecedented in any other accountability process with respect to international crimes to date’ and sets forth a vision for prosecuting individuals responsible for the heinous crimes committed during the conflict.” Since the report came out, the Syrian government appears to have used chemical weapons on its own population, an act that has been met with outrage around the world but is also one that, according to Milena Sterio, “pushes the limits of international law” in terms of what kind of direct military response other nations might adopt. This did not stop the U.S. and allies from retributive airstrikes in Syria, which in turn led to finger-pointing and condemnation at the United Nations. A subsequent report by the non-partisan research service of the German parliament affirmed that "military force used against a state to punish it for infringing an international convention violates the prohibition of force under international law."

South Korea has appealed a World Trade Organization ruling against the restrictions it imposed on seafood imported from Japan following the 2011 Fukushima nuclear disaster. Seoul had vowed to fight the February 2018 ruling on the grounds that the ban aims to safeguard public health and safety. Meanwhile, Japan is applauding the ruling. A top government spokesman stated, “Japan welcomes the WTO’s panel report, which reflected our position. We request South Korea to correct swiftly and with sincerity its import restriction measures that were recognised as violating the WTO rules.”

A map of China, South Korea, North Korea, and Japan

A group of Rohingya people walking after being deportedInternational Criminal Court (ICC) Prosecutor Fatou Bensouda has asked the Court’s judges to rule on whether the ICC has jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh. Radio Free Asia reports that the Myanmar government and military have defended their crackdown against the Rohingya – which included large-scale killings, rape, and arson –  as a counter-insurgency campaign. United Nations officials, on the other hand, have called the campaign “a textbook example of ethnic cleansing” that potentially “bears the hallmarks of genocide.” One of the difficulties for the Court is that Bangladesh is an ICC member while Myanmar is not. Human Rights Watch explains Bensouda’s strategy: “The prosecutor’s legal argument – the first ever request of its kind – is an attempt to assert jurisdiction over ‘deportation,’ one of the well-documented crimes attributed to Myanmar’s armed forces against the Rohingya. It is based on the ICC’s ability to assert jurisdiction if the ‘conduct in question’ for a deportation was committed on the territory of a member state. Since crossing a border is a legally required element of the crime of deportation, Bensouda argues, victims being forced to cross into the territory of Bangladesh would be a part of that ‘conduct.’” Read an EJIL Talk! blogpost to gain a “gender perspective” on the Prosecutor’s  ruling request, which may constitute “a blessing in disguise for gender justice.”

Publications and Resources of Interest

A 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.

In 1995, Alphons Orie joined the defense team in the ICTY’s first case, Prosecutor v. Duško Tadić, which lasted for two years. After serving on the Dutch Supreme Court, he was elected as a permanent judge of the ICTY in 2001, and as a judge of the Mechanism for International Criminal Tribunals in 2011. In this excerpt, he reflects on his experience as a member of the diverse ICTY bench.

“When I served on the Dutch Supreme Court, I would say ninety-five percent was common ground. We were educated at the same universities. We were totally familiar with all of the details of the case law. We were professionals. Then, the final battle was in the last five percent: ‘Should we move in a different direction or not? Should we just consolidate our case law? Is that a new problem?’ But common ground is ninety-five percent. Of course, it's quite different [at the ICTY] because the percentage of common ground is by far less. You come from different backgrounds ⎯ one is an expert in international humanitarian law, the other one is specialized in criminal procedure. You have your own system from where you come ⎯ an Egyptian colleague, Colombian colleague. Surprisingly, it's not that you feel more familiar necessarily with the colleagues from your own continent, or from your own system. Sometimes, I had a far more direct relationship; I even worked very intensively with colleagues where you would expect there would be a huge difference or a huge distance, and there was not.”

Judge OrieAccess Judge Orie’s full transcript here. 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 set of scales on the book "Legitimacy in International Courts"A newly published volume, Legitimacy and International Courts (Cambridge University Press 2018), provides new interdisciplinary insights into this timely topic. Edited by Nienke Grossman, Harlan Grant Cohen, Andreas Føllesdal, and Geir Ulfstein, the chapters explore a number of pertinent questions.  What drives and undermines the legitimacy of these bodies? How do drivers change depending on the court concerned? What is the link between legitimacy, democracy, effectiveness and justice? Top international experts analyze legitimacy for specific international courts, as well as the links between legitimacy and cross-cutting themes.

The theme of legitimacy and international courts will receive additional scrutiny in late May during the 2018 session of the Brandeis Institute for International Judges. The Institute, which will be attended by 15 judges from 13 international courts and tribunals, is being jointly organized by Brandeis University's International Center for Ethics, Justice and Public Life and the PluriCourts Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order of the University of Oslo Faculty of Law.

The Harvard logo with the text "ATHA: Harvard Humanitarian Initiative Humanitarian Academy at Harvard"A new podcast by the program in Advanced Training in Humanitarian Action (ATHA) of the Harvard Humanitarian Initiative addresses the purposive role of sexual violence in the Syrian conflict. According to ATHA, “Whether used to instill fear, humiliate, or punish; destroy lives, families and communities; or enforce social order and power dynamics, rape and other forms of sexual violence have been widely documented in the Syrian conflict… In this podcast, we speak with leading experts and practitioners about the strategic use of sexual violence as a weapon of war in Syria. We'll discuss how sexual violence has been used against women, girls, boys and men in Syria by government forces and armed groups, and what impact it has had on survivors and their families and communities. We'll also discuss how humanitarian actors can better assist survivors inside Syria and in situations of displacement, how perpetrators can be held accountable, and the longer term implications for peace.”

A map of the Arctic OceanTwo recent books published by Elgar cover legal issues stretching across the globe.

International Polar Law (Elgar 2018), edited by Donald R. Rothwell and Alan D. Hemmings, brings together seminal articles and essays on the law of the polar regions. This single volume traces the historical development of polar law in the Arctic and Antarctic and then analyzes in detail the specific legal regimes that have developed for both regions. Common elements assist in the assessment of recent and future developments in international polar law as it has evolved from a narrow legal discourse into one that reflects a significant body of international law for regions that have increasing importance in global affairs.

The International Tribunal for the Law of the Sea: Law, Practice and Procedure (Elgar 2018) provides a thorough examination of the Tribunal’s judicial practice, and references primary sources such as treaties and statutes. Authors P. Chandrasekhara Rao, former ITLOS Judge and President, and Philippe Gautier, ITLOS Registrar, demonstrate that the Tribunal has fulfilled the role entrusted to it by the United Nations Convention on the Law of the Sea. Utilizing a practice-orientated approach, this methodical analysis reveals that the Tribunal has successfully developed its own working methods in handling cases, whilst establishing itself as a judicial institution with the ability to discharge its functions efficiently and cost-effectively, and most importantly, determines that its jurisprudence has contributed to the development of a coherent and progressive interpretation of the law of the sea.

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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