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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.

October 2018

People in the News

Ivan Velasquez
                  Iván Velásquez
Guatemalan authorities have notified the United Nations (UN) that Iván Velásquez, head of the International Commission against Impunity in Guatemala (CICIG), has been banned from re-entering the country. The Guatemalan government alleged that Velásquez was a threat to order and public security.  After clashes between Velásquez and President Jimmy Morales, some of which concerned corruption investigations against the president and his family, Morales announced that he was revoking the CICIG mandate, which is due to expire next year. Over Velásquez’s five-year tenure as head commissioner, CICIG was successful in bringing down a number of corrupt officials, judges and lawyers. Human rights officials and anti-corruption activists have condemned the government’s decision and fear that the CICIG is now at risk. Read more from The Guardian

Dominic OngwenThe defense phase of the Dominic Ongwen trial at the International Criminal Court (ICC) recently began, with Ongwen’s legal team representing the accused in its opening statement as a victim of the Lord’s Resistance Army (LRA) who was himself abducted as a child and integrated into the rebel group’s ranks. Ongwen is charged with 70 counts of war crimes and crimes against humanity, including murder, torture, sexual slavery, rape, enslavement, and the conscription of child soldiers, allegedly committed when he served as a high-ranking commander of the LRA in northern Uganda in the early 2000s. This defense strategy conflicts with statements made by ICC Prosecutor Fatou Bensouda at the opening of the Ongwen trial in December 2016. As reported by The New York Times, Bensouda asserted that while Ongwen's traumatic past could constitute a mitigating factor in deciding a sentence post-conviction, it "cannot begin to amount to a defense or a reason not to hold him to account for the choice that he made: The choice to embrace the murderous violence used by the LRA and make it a hallmark of the attacks carried out by his soldiers." The question facing ICC judges, according to Associated Press, is “whether a boy snatched on his way to primary school and raised in a cult-like group renowned for its brutality can also be considered a perpetrator of crimes.”


   Judges delivering Bemba re-sentencing decision

The ICC has now delivered its re-sentencing decision in the case of the former Congolese vice president Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, and Jean-Jacques Mangenda Kabongo. They were accused of committing offenses against the administration of justice in 2016, which included intentionally corrupting and influencing witnesses, and soliciting false testimonies of defense witnesses in Bemba’s main case. This re-sentencing followed an ICC Appeals Chamber judgment that had reversed the initial sentences against the accused and remanded the matter to Trial Chamber VII for a new determination. Bemba was sentenced to one-year imprisonment and fined EUR 300,000. Both Kilolo and Mangenda were sentenced to eleven months imprisonment and Kilolo was fined EUR 30,000. The fines were ordered to be paid to the Court within three months of its decision and will be given to the Trust Fund for Victims. In June 2018, Appeals judges at the ICC acquitted Bemba of his 2016 convictions and 18-year imprisonment sentence for crimes he committed in the Central African Republic in 2002-2003.

George Soros
                George Soros

The organization started by billionaire philanthropist George Soros, the Open Society Foundations, is taking a case against Hungary to the European Court of Human Rights over its so-called “Stop Soros” legislation. These are recently enacted laws “which criminalize and tax the work of independent civil society groups, under the pretext of controlling migration… and breach the guarantees of freedom of expression and association enshrined in the European Convention of Human Rights.” The Open Society Foundations are closing down their regional office in Budapest in the face of such measures, citing the hostile political and legal environment, which includes a two-year “hate campaign” against the Foundations and their partners.


Jack Smith has become the new Specialist Prosecutor of the Kosovo Specialist Chambers (KSC). He recently signed the solemn declaration of office stating that he will carry out the position independently, impartially, and conscientiously. Smith, a U.S. prosecutor with experience in high-level political investigations and international criminal investigations, was selected through a process facilitated by the European Union. KSC President Ekaterina Trendafilova (Brandeis Institute for International Judges (BIIJ) 2018) stated, “I look forward to good institutional relations with the Specialist Prosecutor in the interests of effective, fair and secure proceedings, justice and accountability.”

Developments in International Justice

Ecuador citizens protesting
    Ecuadorean citizens protest against Chevron
The Hague’s Permanent Court of Arbitration (PCA) has ruled in favor of US oil giant Chevron in its dispute with Ecuador over responsibility for the dumping of toxic waste in the waters of the Lago Agrio region over decades. Chevron had earlier been ordered by the Supreme Court of Ecuador to pay $9.5 billion for polluting indigenous communities in Ecuador’s Amazon region, but the PCA has now ruled that this decision violated international treaties, investment agreements, and international law, and it will instead award compensation to Chevron. The amount is yet to be determined. Texaco, which was later acquired by Chevron, was originally accused of committing environmental damage between 1964 and 1992. Chevron argued that Texaco spent $40 million to clean up the affected areas during the 1990s and signed an agreement with Ecuador freeing it of further responsibilities.  

A lawyer for the indigenous communities criticized the Ecuadorean government for allowing the case to go to an arbitration court. “That is playing Chevron's game and leaving the crime unpunished forever."

UN tank in Palestine
                     credit: Baz Ratner
The US government has stated that it intends to withdraw all funding from major United Nations (UN) human rights bodies, including the Human Rights Council and Office of the High Commissioner for Human Rights (OHCHR), as well as from the UN Relief and Works Agency for Palestinians in the Near East (UNRWA). According to the International Justice Resource Center, the US is currently the largest contributor to the UN budget and also makes substantial donations to OHCHR and UNRWA, donating $350 million to the latter in 2017. Outgoing UN High Commissioner for Human Rights Zeid Ra’ad al-Hussein noted that the withdrawal of US funding would not be “fatal” to the OHCHR, but that any decrease affects the UN’s human rights work. A spokesman for the UN Secretary General stated, more generally, that the US withdrawing large amounts of funding would “simply make it impossible for the UN to continue all of its essential work advancing peace, development, human rights and humanitarian assistance.”

LBGT flag wrapped around an Indian man as he holds hands with another man
                             credit: AFP
India’s Supreme Court has unanimously ruled that gay sex is no longer considered a criminal offence. The ruling struck down section 377, a colonial-era law that considered gay sex an “unnatural offence.” Chief Justice Dipak Misra stated, “criminalizing carnal intercourse is irrational, arbitrary and manifestly unconstitutional.” Justice Indu Malhotra said that “homosexuality is a natural variant of human sexuality” and that “history owes an apology to the members of this community and their families.” A statement by the UN office in Delhi stated, “the focus must now be on ensuring access to justice, including remedy; effective investigations of acts of violence and discrimination; and effective access to economic, social and cultural rights.”

Although there has been an outpouring of support for Supreme Court’s ruling, not all reactions have been positive. A prominent lawmaker from Prime Minister Narendra Modi’s party claimed that homosexuality is unnatural and against Hindu nationalism.

Rohingya behind barbed wire
   Rohingya refugees. credit: Adam Dean

Judges at the ICC have ruled that the Court may exercise jurisdiction over the alleged mass deportation of the Rohingya people from Myanmar to Bangladesh as a crime against humanity. As explained in an ICC press release, “although the coercive acts underlying the alleged deportation of members of the Rohingya people occurred on the territory of Myanmar (which is a State not party to the Statute), the Court may nonetheless exercise its jurisdiction, since an element of this crime (the crossing of a border) occurred on the territory of Bangladesh (which is a State party to the Statute).”

In a recent article, The New York Timesreported the findings of an independent UN fact-finding mission, which concluded that Myanmar military forces carried out atrocities amounting to “genocidal intent.” The UN report also named six military officials who should be tried for genocide. UN rights chief Michelle Bachelet welcomed the ICC’s decision to exercise its jurisdiction, after stating that genocide remains a “threat and reality” in the 21st century. Although the ICC ruling did not specifically mention the crime of genocide, Bachelet insisted that it was time to “take stock” of recent violations in Myanmar, claiming that the ICC’s decision “offers real hope” for justice and accountability. 

Omar Al-Bashir
         Omar al-Bashir. credit: AFP

In other ICC news, in September the Court held five days of hearings in response to Jordan’s appeal regarding a previous ICC decision about its non-compliance with the Court’s request for the arrest and surrender of Sudanese President Omar al-Bashir. Al-Bashir is wanted for genocide, war crimes, and crimes against humanity allegedly committed in Darfur, Sudan. Al-Bashir flew to Jordan last year to attend an annual Arab League summit, despite two ICC warrants out for his arrest. As a signatory of the Rome Statute, the document that established the ICC, Jordan has the obligation to turn over any alleged criminals requested by the Court. During the hearings, the representative from Amman played the “head-of-state immunity” card in his statement to the Court, while adding that “Jordan fully subscribes to the importance of the fight against impunity and the need to punish those responsible for crimes within the jurisdiction of the court.” But this cannot be accomplished, he added, at the expense of fundamental tenants of international law that maintain peace among states. The prosecution questioned Jordan’s position, declaring that the immunity of a head of state is not clearly established under customary international law.

The United States is once again showing itself to be at odds with institutions of international justice.

John Bolton
                 John Bolton

John Bolton, President Trump’s national security advisor, recently attacked the ICC’s authority in a speech delivered to the Federalist Society, threatening to impose sanctions if it opened an investigation into alleged crimes committed by American troops in Afghanistan.  In November 2017, ICC Prosecutor Fatou Bensouda asked the Court’s judges to authorize an investigation into alleged war crimes and crimes against humanity committed in Afghanistan in 2003, including crimes committed by American armed forces and agents of the Central Intelligence Agency in secret detention facilities in Afghanistan. Bolton declared in his speech, “The United States will use any means necessary to protect our citizens and those of our allies from unjust prosecution by this illegitimate court. We will not cooperate with the ICC. We will provide no assistance to the ICC. And, certainly, we will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.” 

Scholar Milena Sterio provides a detailed analysis of Bolton’s points, concluding thus: “John Bolton’s speech is both factually inaccurate as well as misguided, and a new American policy vis-à-vis the ICC, built on Bolton’s remarks, will be detrimental to our own interests and our position in the global community.” More recently, the American Civil Liberties Union (ACLU) has submitted a Freedom of Information Act request to the Department of State and Department of Justice regarding the Trump administration’s newly declared policy that would sanction the ICC and its staff if the Court investigates allegations of torture committed by U.S. forces in Afghanistan. The ACLU wishes to provide the American public with information about the Trump administration’s positions concerning the United States’ working relationships with international justice and human rights bodies.

Chagos Island Panorama shot
         An island in the Chagos archipelago
                          credit: Reuters

The US also disapproves of an ongoing process at another institution in The Hague, the International Court of Justice (ICJ). Public hearings in an ICJ advisory opinion case initiated by the United Nations, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, recently concluded after hearing submissions from 22 countries and the African Union. The case revolves around the status of the British-ruled Chagos Islands, separated from Mauritius by the United Kingdom just three years before the island territory became independent, and which has been the site of an important joint UK-US military base for more than five decades. According to The Mail and Guardian, ICJ judges are “tasked to give an opinion whether the ‘process of decolonisation of Mauritius was lawfully completed’ after Chagos was split off. They are also to give their view on the consequences of Britain’s continued administration of the islands — including the inability of thousands of Chagossians, who were evicted in the 1970s, to return to their homes.”

While most African countries support Mauritius in this debate, the view of the US is that the ICJ should not provide an advisory opinion at all, claiming that it is “the duty” of the Court to refrain from taking a position on a bilateral sovereignty dispute. This is in line with the UK’s view, which is also supported by Australia and Israel, a country that has not commented on an international dispute in decades. Israeli officials described this action “as an effort to get the Jewish state more involved in matters of international law that have nothing to do with the Israeli-Palestinian conflict.” 

Shree Baboo Chekitan Servansing
   Shree Baboo Chekitan Servansing at BIIJ 2018

Finally, the US government has refused to reappoint one of the four remaining judges at the World Trade Organization Appellate Body, which is currently presiding over a record number of disputes. The Appellate Body normally has seven judges - formally known as "members" - but after a US campaign to block appointments and reappointments, only four remained. The term of Shree Baboo Chekitan Servansing of Mauritius (BIIJ 2018) ended on 30 September 2018. Even after offers to amend the members' procedures and other reforms, and repeated petitions by 70 countries, the US blocked his reappointment. As three members are needed for each case before the Appellate Body, and two of the remaining members have terms expiring in 2019, the future of the Body is very much in question.

A pole with an arrow pointing to "Brexit" and an arrow pointing to "EU"European leaders, including European Council President Donald Tusk, have denounced British Prime Minister Theresa May’s “Chequers” plan for facilitating Brexit. At a meeting in Salzburg, European leaders made it clear that May’s proposal was unacceptable. Although they have denounced the “Chequers” plan, European leaders would prefer to facilitate a deal with Britain rather than have none at all, hoping to avoid a Brexit trainwreck. “Better a bad deal than no deal and a crash,” stated a senior adviser on Europe at the Bertelsmann Foundation. Leaders are pushing for an agreement to be reached by October, one that will include giving ground on trade and the Irish border issue.  Internal UK politics is now further complicating the Brexit negotiations and some fear that changes in domestic political leadership could result in a “cliff-edge Brexit.”

                         ACERWC hearing

The African Committee of Experts on the Rights and Welfare of the Child (ACERWC) recently issued its first decision involving sexual violence against a minor. The decision found that Cameroon had failed to adequately investigate and punish a rape of a ten-year-old girl. The ACERWC concluded that Cameroon’s lack of due diligence resulted in gender discrimination and allowed the minor to be tortured and degraded. The girl’s representatives called the decision “ground-breaking.” Significantly, it diverges from a 2016 African Commission on Human and People’s Rights decision in which Ethiopia’s failure to look into the rape of a minor was not considered to constitute gender-based discrimination. The ACERWC use of the due diligence standard thus demonstrates a break from previous rulings of similar sexual violence cases within the African human rights system.  

Publications and Resources of Interest

International Commission of Jurists sitting behind a deskA recent event organized by the International Commission of Jurists, and captured on video, addressed the challenge of preserving evidence of mass crimes in situations of crisis so that it is available for use in eventual criminal proceedings. The panel of experts featured persons associated with justice processes in Syria and South Sudan, as well as high-profile figures in the world of international criminal justice, including former international judge and human rights commissioner Sanji Monageng (BIIJ 2004, ’10, & ’13), and former international prosecutor and ambassador Stephen Rapp (Ad Hoc Tribunal Oral History Project interviewee).

Book "International Protocol on the Documentation and Investigation of Sexual Violence in Conflict"In line with the event mentioned above, there is currently an initiative underway to help with the investigation and documentation of conflict-related sexual violence. As reported in an IntLawGrrls post, the Institute for International Criminal Investigations and the international anti-torture organization REDRESS have launched a series of country-specific guides to assist those investigating and documenting such violence in Myanmar, Sri Lanka, and Iraq. The guides, available in languages relevant to those three countries, serve as supplements to the second edition of the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict, published in March 2017 by the UK Foreign and Commonwealth Office. The International Protocol is designed to help strengthen the evidence base for bringing perpetrators of sexual violence in conflict to justice.

Piece of paper from South AfricaA recent op-ed  –  by former international prosecutor and retired Justice of the South African Constitutional Court Richard Goldstone (BIIJ co-director), former international judge and UN High Commissioner for Human Rights Navi Pillay (BIIJ 2002, ‘03, ‘06, & ’07), and scholar/blog editor Mark Kersten – questions the wisdom of South Africa carrying out its threat to leave the ICC. The authors note that South Africa feels a conflict “between, on the one hand, fulfilling its duties under the Rome Statute and surrendering the likes of [Omar al-] Bashir to the ICC, and on the other, meeting its obligations to fellow governments and international organizations such as the African Union to protect head of state immunity.” Since the publication of the op-ed, a chief South African diplomat, Lindiwe Sisulu, has announced that her government will be reviewing its stance on the ICC: “We are discussing our own situation and reviewing our own position because we have opted out of the ICC, perhaps in a pique of anger, and we felt that we are actually better off in the ICC to transform it from inside rather than standing outside and hurling a whole lot of expletives from outside.”

Special Opportunity

Flyer for The International Journal of Transitional JusticeThe International Journal of Transitional Justice invites submissions for its 2020 Special Issue, “Creative Approaches to Transitional Justice: Contributions of Arts and Culture.” The Special Issue will be guest edited by Cynthia Cohen, director of the Program in Peacebuilding and the Arts, based in the International Center for Ethics, Justice and Public Life of Brandeis University. The Special Issue invites works that document, critically engage with, and imagine new forms of artistic and cultural research and practice in/with transitional justice processes. Works should describe creative approaches crafted to address the legacy of human rights abuses and to effect social reconstruction and transformation through transitional justice in the wake of widespread violence and oppression. A variety of forms are welcome, including scholarship, practitioners’ reflections and creative works suitable for presentation in print format and on the journal’s website. 

Find more information and submission guidelines 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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