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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.

November 2018

People in the News

Christine Van den WyngaertChristine Van den Wyngaert (Belgium, Brandeis Institute for International Judges 2015 & ’16), Judge on the Roster of International Judges of the Kosovo Specialist Chambers, recently received the “World Peace Through Law Award” for 2018, which was conferred by the Whitney R. Harris World Law Institute in the School of Law of the Washington University in St. Louis, Missouri, USA. The prize has been awarded since 2006 to distinguished legal experts who, through their academic scholarship and judicial practice, have advanced the rule of law, thereby contributing to global peace. Judge Van den Wyngaert received the Award by virtue of her exceptional service at the International Criminal Court since 2009, as well as her work for the International Criminal Tribunal for the former Yugoslavia and the International Court of Justice. Learn more about her award here. Read an extended interview with Judge Van den Wyngaert, where she discusses in particular her work with the ICC, from the most recent newsletter of the International Criminal Court Bar Association.

P. Chandrasekhara RaoP. Chandrasekhara Rao (India) of the International Tribunal for the Law of the Sea (ITLOS) has died. Judge Chandrasekhara Rao sat on the ITLOS bench from 1996 until 2017 and served as its President from 1999 until 2002. Between 2000 and 2009, he served as President of the Special Chamber formed to deal with the Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean. Read more in an ITLOS press release.

Koen LenaertsKoen Lenaerts (Belgium) has been re-elected by his peers to serve as President of the Court of Justice of the European Union for the period from 9 October 2018 to 6 October 2021. Lenaerts has been a judge of the Court since 2003, served as Vice-President from 2012-15, and was first elected as President in 2015.

Alberto Fujimori
           Credit: Reuters

The Supreme Court of Peru has overturned the pardon of former President Alberto Fujimori for crimes against humanity he committed while in office. 

President of Peru from 1990 to 2000, Fujimori was sentenced to 25 years in prison in 2009 for murder, kidnapping, and other human rights abuses. Former President Pedro Pablo Kuczynski pardoned Fujimori in 2017 on humanitarian grounds, which angered many victims. The Supreme Tribunal of Pretrial Investigations of the Peruvian Supreme Court has now stated that Fujimori’s pardon can be annulled because it was incompatible with the Inter-American Convention on Human Rights. In a press release, the Inter-American Commission stated that the Supreme Court’s ruling is a “major step forward for the victims of grave human rights violations who are fighting to defend their rights to memory, truth, and justice.”

Thomas Kwoyelo sitting next to other men
        Credit: The Daily Monitor

The African Commission on Human and People’s Rights has ordered the Ugandan Government to pay compensation to Thomas Kwoyelo, a former Lord's Resistance Army commander, for violating his rights to a fair trial and equality before the law. Kwoyelo is facing charges of war crimes and crimes against humanity committed in Uganda. Mr. Kwoyelo’s trial has been in the pretrial phase for almost ten years due to, among other issues, the Ugandan Supreme Court’s lack of funds. The Commission has ordered the Ugandan government to report back its progress within 180 days.

Radovan Karadzic
             Radovan Karadžić
             Credit: Balkan Insight

Former Bosnian Serb leader Radovan Karadžić has requested that Judge William Sekule (Tanzania) be removed from the appeals process of his trial at the Mechanism for International Criminal Tribunals (MICT). In 2016, Karadžić was found guilty and sentenced to 40 years in prison for genocide, crimes against humanity, and violations of the laws or customs of war. Karadžić’s defense team has accused Judge Sekule of bias because he was involved in convicting several other Bosnian Serb officials for their involvement in the Srebrenica genocide. MICT President Theodor Meron (US) has already removed himself from the Karadžić appeal after also being accused of bias by the Karadžić defense team. Although President Meron announced himself able to be impartial, he noted that “it is in the interest of justice that I withdraw from this case.”

A latebreaking commentary from suggests that these motions by the defense are the sign of deeper problems at the MICT, which include bitter conflict among judges and now a request by the prosecution to dismiss a member of the bench as well. According to the commentary, the MICT has "become embroiled in a very public power struggle which is already impacting the MICT’s main cases and could taint the legacy of the Yugoslav tribunal by fueling opponents' claims the court is biased."

Dr. Denis MukwegeDr. Denis Mukwege was recently awarded, along with activist Nadia Murad, the 2018 Nobel Peace Prize. Mukwege is a gynecologist and surgeon in the Democratic Republic of Congo who has treated thousands of women and girls affected by rape and sexual violence. He is known as "the man who mends women" for the work he and his colleagues at Panzi Hospital have done since he founded the Bukavu clinic twenty years ago. Mukwege was a participant in the 2013 Judicial Colloquium on Adjudicating Sexual Violence under International and Domestic Law, co-organized by Brandeis University, the Institute for Historical Justice and Reconciliation, and Physicians for Human Rights. This event convened domestic and international judges to engage in dialogue about how sexual violence can be effectively addressed through courts.

Developments in International Justice

ECtHR logo, with the facade of their building (two circles connected)The European Court of Human Rights (ECtHR) has rejected Romania’s request to challenge the court’s ruling that Romania illegally hosted a secret CIA prison in Bucharest between 2003 and 2005. In May 2018, the ECtHR unanimously ruled that Romania broke the European Convention on Human rights by detaining and abusing Saudi national Abd-al-Rahim al-Nashiri in a secret CIA prison in 2004-05. Al-Nashiri’s lead lawyer stated, “The court’s decision means that it is time for Romania to acknowledge the truth about this shameful episode. It must now properly implement the court’s judgment, including by conducting an effective investigation into what happened.”
Despite an abundance of evidence of the CIA prison, the Romanian government has never acknowledged its existence. Al-Nashiri was handed over to the CIA in 2002 and was tortured in black sites in Thailand, Poland, and Romania. He is currently held in Guantanamo Bay where he faces death penalty charges before a U.S. military tribunal for alleged involvement in the October 2000 attack on the USS Cole in Aden harbor.

Sudanese President Salva Kiir and Riek Machar
 South Sudan’s President Salva Kiir
 and rebel leader Riek Machar (l-r) (AP)

South Sudanese leadership says that it rejects the creation of a hybrid war crimes court, a major element in a peace deal reached by the government and its opposition group. The court, to be composed of South Sudanese judges and international war crimes experts, would prosecute crimes committed during the South Sudanese civil war. Information Minister Michael Makuei says that the South Sudanese government welcomes peace, but he claims that countries like the United States, Norway, and Britain are trying to use the courts to indict individuals whenever they please. Makuei has also said that bringing peace to the country should come first and accountability for crimes later. However, civil society activists have rejected this notion, indicating that the South Sudanese population needs accountability now and that it goes hand in hand with peace.

Sudanese people standing outside of a buildingPeace negotiations in South Sudan have apparently not changed the situation of citizens who were abducted by the government’s opposition party and are still being held captive. United Nations (UN) High Commissioner for Human Rights, Michelle Bachelet, has called for the immediate release of those captured, especially the children. Many young girls were taken to be commander’s “wives,” while young boys were forced to fight as soldiers. Multiple villages were also attacked, where people became victims of murder, rape, sexual slavery, forced recruitment, and destruction of property. Bachelet has echoed many calls for the South Sudanese government to hold human rights violators accountable for their abuses. 

A person's hand holding a sign saying "Brexit: is it worth it?"The Court of Session in Scotland has asked the Court of Justice of the European Union (CJEU) for clarification regarding the United Kingdom’s unilateral revocation of its notification to withdraw from the European Union. According to European Law Blog, the purpose of the CJEU request is “to clarify for Members of Parliament whether it would be a legally valid option under Section 13 of the European Union (Withdrawal) Act to withhold a resolution approving any negotiated withdrawal agreement, or lack thereof, and instead vote to revoke notification under Article 50(2).” The Scottish Court’s request comes after the UK and the EU hit an impasse in their negotiations over the conditions of Brexit. The blog commentary generated a biting response from a reader: “Leaving [the EU] is a political act, changing your mind about leaving is a political act, being allowed to rejoin is a political act…[The text of Article 50] does not include giving the departing member a unilateral right to cause great upheaval in the Union only to change their mind if they don’t like the outcome of the negotiations, or if they have managed to gain more advantageous terms of membership through threatening to leave.”

Saudi Crown Prince Mohammed bin Salman
                      Credit: Getty Images

What sanctions might Saudi Crown Prince Mohammed bin Salman and others involved in the murder of journalist Jamal Khashoggi face for their acts? In a Lawfare commentary, legal scholar Steven Ratner suggests that Saudi Arabia  could be prosecuted for breaking two international laws in the killing of Khashoggi — the ban on extraterritorial enforcement of a state’s laws or policies, and the requirements for lawful uses of diplomatic missions. Other routes to prosecution may also exist, reports The Washington Post. It cites Stephen Rapp, former U.S. State Department ambassador-at-large for war crimes issues, who notes that “[i]f the reports are accurate, the acts against Mr. Khashoggi are serious violations of international human rights law, including the law to protect the individual from torture and forced disappearance.” Using the principle of universal jurisdiction, any country that is a party to the Convention against Torture could potentially seek an order for Saudi Arabia to either prosecute Mohammed bin Salman and the other suspects, or extradite them elsewhere to face justice. Khashoggi’s family could also bring a civil case to a US court and sue under the Torture Victim Protection Act of 1991 or the Alien Tort Claims Act of 1789.

Nicolas Maduro
      Nicolas Maduro (Miraflores Palace)

France recently joined six other countries in calling on the International Criminal Court (ICC) to investigate potential crimes against humanity committed by Venezuelan President Nicolas Maduro. France’s President Emmanuel Macron says that he believes the ICC can find a solution to the crisis. In September, the governments of Chile, Canada, Argentina, Colombia, Peru, and Paraguay asked ICC Prosecutor Fatou Bensouda to open an investigation into the situation in Venezuela. This is the first time that states parties to the ICC have come together to ask for an investigation into alleged crimes on the territory of another country. The Office of the Prosecutor at the ICC opened a preliminary examination of Venezuela last February, the aim of which is to determine whether the ICC should proceed with a full investigation.

ICJ logo that has some plants and the words "Cour Internationale De Justice: International Court of Justice"The United States has recently found itself in the sights of the International Court of Justice (ICJ). The Court has ordered the US to lift its sanctions on Iran, which have affected trade, food, medicine, and aviation. ICJ judges unanimously ruled in favor of Iran after it accused the US sanctions of violating the 1955 Treaty of Amity between the two countries. US Secretary of State Mike Pompeo said that the US was ending the treaty and that Iran had been ignoring it for a long time. Pompeo also stated that the ICJ lacks jurisdiction over the case and that the US would ignore the court’s ruling.   

Palestine has also initiated a case at the ICJ against the United States, accusing it of violating the Vienna Convention on Diplomatic Relations by moving the American embassy in Israel from Tel Aviv to Jerusalem. Palestine argues that the Convention requires that the sending State must establish its embassies on the receiving State's territory, and since Jerusalem is not in Israel due to its special status, "[t]he relocation of the United States Embassy in Israel to...Jerusalem constitutes a breach of the Vienna Convention." An EJIL Talk! commentary notes a number of difficulties that might arise through this case, including the fact that Palestine's claim "runs headlong into the ICJ's longstanding Monetary Gold jurisprudence – that it will not adjudicate on claims that involve the legal interests of third parties without the consent of these parties." In this case, this would be Israel. The commentator concludes, "this case – whatever its merits – will just not go anywhere. The only question is how quickly the Court shoots it down, and what exactly it says in doing so."

People in Gambia standing behind a sign that says "Never Again"The Gambia has launched a Truth, Reconciliation and Reparations Commission (TRRC) to shed light on the abuses committed by former dictator Yahya Jammeh. Time reports that the 11-member commission will investigate human rights abuses committed between July 1994 and January 2017 and will have the power to subpoena alleged perpetrators. The Commission’s findings could lead to the eventual prosecution of Jammeh, who fled to Equatorial Guinea in 2017. Current Gambian President Adama Barrow stated that “there is a crucial need to put the victims at the center of the process.”  International Criminal Court Prosecutor Fatou Bensouda, a Gambian national, praised the commission and stated that in order for The Gambia to move forward, it must “engage in a good faith effort to uncover past wrongs” as well as “identify and hold those most responsible accountable.”

Publications and Resources of Interest

Physicians for Human Rights logoPhysicians for Human Rights (PHR) have won an award from the Massachusetts Institute of Technology for its groundbreaking “MediCapt” app. This is a digital medical form with photo-capture capacity, allowing the secure storing of forensic evidence in the cloud, and the ability to safely transmit it to those in the justice and law enforcement sectors. Karen Naimer, director of PHR’s Program on Sexual Violence in Conflict zones, described the technology this way: “MediCapt has the potential to document sexual violence cases anywhere, anytime. It can be used with any language, any form, and within any legal jurisdiction. We see the opportunity for growth and to scale this new technology to allow for more convictions and greater justice for all sexual violence survivors.” PHR was awarded $10,000 in the “Frontlines of Health” solver category, which will go toward further developing and expanding MediCapt. Read more in a PHR press release

book cover of "Children and Adolescents in the Unites States Adult Criminal Justice System"A new report by the Inter-American Commission on Human Rights (IACHR) examines the current juvenile justice system in the United States and describes reforms needed in order to ensure that children do not come into contact with the adult criminal system. The report also urges the US to create a federal definition of a child, which would include anyone under the age of 18. According to the International Justice Resource Center, the US has attempted to prevent children from going through the adult criminal justice system, but many states still have laws that allow children to be incarcerated in adult prisons. “A very high number of children are being tried as adults in the U.S. criminal justice system, and are being arrested and deprived of their liberty at adult penitentiaries, often in the same areas as adults, which is in violation of their basic rights to special protection and to be tried in a specialized juvenile system,” stated the IACHR report.

Koh book entitled "The Trump Administration and International Law"“International law is bigger than Donald Trump.” That is the conclusion drawn by Harold Hongju Koh, eminent legal scholar and former legal advisor to the US Department of State, in his recently published book, The Trump Administration and International Law (Oxford University Press 2018). In an Opinio Juris commentary, Koh summarizes the book in this way: “the anatomy of a struggle, a counter-strategy of resistance, a recognition of what is at stake, and a call to action.” He claims to remain optimistic despite contemporary challenges to the international regime. Read diverse responses to and commentaries on Koh’s book at the Opinio Juris on-line symposium

Cherif BassiouniInternational criminal law giant Cherif Bassiouni may have passed in 2017, but his legacy lives on. His friends have assembled a volume of memories about the man and his work, presented on the occasion of the September 2018 dedication of the Cherif Bassiouni Centre at the headquarters of the Siracusa International Institute for Criminal Justice and Human Rights. Read the numerous contributions to the volume here.

International Justice in the News
is edited by Leigh Swigart, Director of Programs in International Justice and Society, and Samantha Lauring '19.

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