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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.

September 2018

Featured News

Brandeis Institute for International Judges membersFifteen judges from thirteen international courts recently drafted and finalized a set of recommendations aimed at reinforcing the legitimacy of institutions of international justice. These were the participants of the 2018 session of the Brandeis Institute for International Judges (BIIJ), organized collaboratively in June 2018 by the International Center for Ethics, Justice and Public Life of Brandeis University, and 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 Faculty of Law.

The Oslo Recommendations for Enhancing the Legitimacy of International Courts, which BIIJ participants drafted and endorsed in their personal capacities, articulate relevant policies and activities in five arenas: nomination and selection of international judges; ethics and judicial integrity; efficiency of proceedings; transparency and proceedings and access to judicial output; and the role of judges in outreach and interactions with the public. Read more details about the Oslo Recommendations in an IntLawGrrls blogpost.

People in the News

Kofi AnnanThe world is mourning the passing of Kofi Annan, the seventh Secretary-General of the United Nations (UN) who served two consecutive terms from January 1997 till December 2006. A Ghanaian diplomat, Annan is remembered as a gentle spirit devoted to the UN’s mission. Current UN Secretary-General Antonio Guterres described him thus: “Kofi Annan’s years in office were an exciting time. He put forward new ideas. He brought new people into the United Nations family. He spoke passionately about our mission and role. He created a renewed sense of possibility both inside and outside our organization about what the UN could do and be for the world’s people. His most defining features were his humanity and solidarity with those in need. He put people at the centre of the work of the United Nations, and was able to turn compassion into action across the UN system.’’

Michelle BacheletIn other UN news, the General Assembly has approved the nomination of Michelle Bachelet for the position of UN High Commissioner for Human Rights. The High Commissioner is the principal official who speaks out for human rights across the whole UN system, strengthening human rights mechanisms; enhancing equality; fighting discrimination in all its forms; strengthening accountability and the rule of law; widening the democratic space; and protecting the most vulnerable from all forms of human rights abuse. Bachelet is a Chilean national who has both suffered at the hands of her own government, when it was led by dictator Augusto Pinochet, and served as its president, from 2006 to 2010 and again from 2014 until this year. She was also head of UN Women from 2010 to 2013. Bachelet will serve a four-year term as High Commissioner, beginning on 1 September 2018, with a possibility of renewal for a second four-year term.

Bachelet is replacing Zeid Ra’ad al-Hussein, who began his term as UN High Commissioner in September 2014 and chose not to seek a second term. The New York Times describes Zeid as a “Jordanian prince and longtime diplomat who became one of the most forthright critics of abuses by governments in many countries, including the United States, during his four years as the high commissioner for human rights.” Zeid recently declared, as reported in The Guardian, that Donald Trump’s anti-press rhetoric is “very close to incitement to violence” and that his language “aimed at minorities and at the press was redolent of two of the worst eras of the 20th century, the run-up to the two world wars.”

Aydin Sefa AkayIn July, the UN Secretary-General declined to reappoint a Turkish judge, Aydin Sefa Akay, to the roster of the Mechanism for International Criminal Tribunals (MICT). Judge Akay was arrested in September 2016 by Turkish authorities on a single charge of being a member of a terrorist organization, convicted in June 2017 by a Turkish court, and subsequently released provisionally pending appeal of his conviction, during which time he continued his MICT work. It is widely believed that the charge against Akay, like those against numerous other Turkish judges following a coup attempt in 2016, are unfounded. According to EJIL Talk!,  “It is understood that the decision not to reappoint Judge Akay was based on information provided by the Government of Turkey to the UN Secretariat that Judge Akay no longer satisfies the qualifications for Judges identified in Article 9 of the Mechanism’s Statute by virtue of his conviction.”  MICT President Theodor Meron has been a tireless advocate for Judge Akay since his initial arrest, claiming that the actions taken against his colleague are inconsistent with the assertion of Akay’s diplomatic immunity by the United Nations in October 2016. Meron has also noted that “the situation has raised serious questions as to whether the immunities to which Judges are entitled and the judicial independence that these immunities serve to protect can be effectively guaranteed for institutions such as the Mechanism, where Judges typically work in the countries of their nationality.” Commentator Marko Milanovic asserts that the Secretary-General’s apparent acquiescence to the Turkish government “is not only a manifest act of political cowardice on the part of the Sec-Gen, but is a direct assault on the independence and integrity of the international judiciary.”

Recent elections have brought both new and returning judges to the benches of regional human rights courts.

Logo with the Americas in the centerThe Organization of American States elected three judges to the Inter-American Court of Human Rights, which has a seven-person bench. Judge Humberto Sierra Porto (Colombia) and Eduardo Ferrer Mac-Gregor (Mexico) were reelected after serving their first terms, and Ricardo Pérez Manrique (Uruguay) was elected to fill the seat of Judge Roberto de Figueiredo Caldas (Brazil) – whose term was to expire in January 2019 – following accusations that Caldas had committed acts of domestic violence.

Scale with the words "African Court of Human and Peoples Rights"The Assembly of Heads of State and Government of the African Union elected four judges to fill vacancies on the eleven-person bench of the African Court of Human and Peoples’ Rights. Imani Aboud (Tanzania), Stella Isibhakhomen Anukam (Nigeria), and Blaise Tchikaya (Congo) will assume their positions for the first time, while Vice-President Ben Kioko (Kenya) was reelected to a second term. Read more in an African Court press release.

The current challenges facing the World Trade Organization (WTO) are no longer discussed only in specialist circles but are increasingly appearing in more popular fora. In a recent article, The New York Timesdescribes how the WTO has become arbiter in a fight among the WTO’s most powerful members: “At the center of the battle is whether the United States’ claim that its sweeping steel and aluminum tariffs are necessary to protect national security or whether they are simply a ruse to protect American metal manufacturers from global competition.”

James Crawford
                  James Crawford

International judges are now also joining the fray over the WTO. International Court of Justice Judge James Crawford (BIIJ 2018) recently aired his views on the current state of the WTO’s Appellate Body (AB) in the Australian Financial Review: "It's the most successful appellate mechanism in international history. It's associated with the considerable success of the WTO as a trade regulator. If that breaks down, we're really back to square one." A National Public Radio interview with former American AB member Jennifer Hillman (BIIJ 2009 & 2010) provides important background and commentary on the institution’s ongoing difficulties and describes in clear terms how the United States has tried to undermine the independence of the AB.

With more of the normally seven-member AB set to end their terms in late 2018, and with the US refusing to confirm the appointment of any new members, the problems of the WTO will not end anytime soon.

Developments in International Justice

CCJ logo with a scale in the centerThe Caribbean Court of Justice (CCJ) has issued an important judgment in which it has declared unconstitutional the mandatory death sentence in Barbados. According to the World Coalition against the Death Penalty, the CCJ judgment “accepted that not everyone convicted of murder deserves to be executed and the courts should be allowed to consider each case separately. It ruled that the mandatory death sentence breached the appellants’ right to life, their right to a fair trial and amounted to inhuman and degrading treatment because the appellants were not allowed to persuade a judge to impose a sentence other than death.” The Inter-American Court of Human Rights has twice found Barbados in violation of the American Convention on Human Rights and ordered it to change its law on the same matter, but no reforms were made. Saul Lehrfreund, co-executive director of The Death Penalty Project, declared that the judgment “is the latest in a series of progressive decisions by the Caribbean Court of Justice, which has marked itself out to be one of the leading domestic human rights tribunals within the Commonwealth.” Trinidad and Tobago is now the last country in the Caribbean region which imposes the mandatory death penalty.

In other human rights news from the Americas, the Costa Rican Supreme Court has struck down its ban on same-sex marriage as unconstitutional and discriminatory. This decision, which has been welcomed by the Inter-American Commission of Human Rights, follows an early 2018 opinion by the Inter-American Court of Human Rights that same-sex couples have the same rights to marry as heterosexual couples.

A parent hugging a childThe Inter-American Commission is less pleased by another country within its purview, the United States. In a press release, the Commission announced that it “granted precautionary measures on August 16, 2018, in favor of migrant children who were separated from their families as a result of the implementation of the ‘Policy of Zero Tolerance’ in the United States.” The US has been asked to adopt measures, among others, to protect the rights to family life, personal integrity and identity of the affected children, to ensure communication between children and their families, and to guarantee their reunification.

Three children playing on phones and computers
                     credit: karenharrisblog
The Council of Europe (CoE) recently took action to protect the rights of children in the digital age. As reported by the International Justice Resource Center, the CoE adopted Recommendation CM/Rec(2018) 7 of the Committee of Ministers to member States on Guidelines to respect, protect, and fulfil the rights of the child in the digital environment in recognition that children need consideration in the following areas: non-discrimination; freedom of expression and access to information; freedom of association; privacy; education; protection and safety; as well as remedies in the case of violated rights. These recommendations are non-binding, but they join several binding conventions on related protections, including the Convention on Cybercrime, the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse, and the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.

Al-Bashir standing with other men
Sudan’s al-Bashir attended an African Union
summit in South Africa in 2015 despite an
outstanding arrest warrant.

In a rare tripling up of international organizations, the African Union (AU) is seeking an advisory opinion from the International Court of Justice (ICJ) that will have a significant impact upon the work of the International Criminal Court (ICC). The matter relates to the immunities of sitting heads of state and other high governmental officials before the ICC, an issue that has arisen in the cases against Sudanese President Omar al-Bashir of Sudan and Kenyan President Uhuru Kenyatta. To further complicate matters, the case against al-Bashir was referred to the ICC by the United Nations (UN) Security Council. In an explanatory memo submitted by Kenya’s UN ambassador asking that the General Assembly put the AU request on the agenda of its upcoming session, it was stated that there are “competing obligations” vis-à-vis head-of-state immunity from the UN Charter, the Rome Statute that established the ICC, customary law, “or even internal legislation with respect to immunities of heads of state, a member of a government or parliament, an elected representative or a government official.”

A recent ASIL Insight lays out the issue to be addressed clearly. “There are two fundamental—and related—questions at the heart of the dispute: whether immunities granted as a matter of customary international law to a head of state may be waived by a treaty, in this case the Rome Statute; and the impact of a referral by the UNSC as it pertains to the relationship between Articles 27 and 98(1) of the Rome Statute.” The former article states that “[the Rome] Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.” The latter article declares that a State cannot be made “to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.” The Insight commentary ends thus: “The course of action contemplated by the AU in requesting an advisory opinion from the ICJ is an inflection point in the relationship between all these institutions. It may have wider implications on international law and international institutions, beyond the scope of the legal question in dispute.”

Protesters with a sign "Journalism Is Not A Crime"The Turkish government is being taken to the World Bank’s International Centre for Settlement of Investment Disputes (ICSID) in Washington in two different cases involving the seizure of independent media companies in Turkey. According to The Guardian, more than 1,100 companies… have been transferred to Turkey’s Savings Deposit Insurance Fund, most of them following the failed 2016 coup against the regime of President Recep Tayyip Erdoğan. Furthermore, journalists on confiscated newspapers and TV stations have been arrested, replaced and jailed. One of the plaintiffs before ICSID, a Turkish businessman heading a British company, “believes he is unable to obtain justice inside Turkey and has therefore initiated action in a forum where Erdoğan’s controversial regime will be subject to international judicial scrutiny.”

Physicians for Human Rights logoThe landmark Kavumu trial, in which 11 Congolese militia members were convicted in late 2017 of crimes against humanity for murder and the rape of 37 young children, has been upheld on appeal. According to Physicians for Human Rights (PHR), The High Military Court of the Congo followed closely to the reasoning of the trial judgment and upheld the waiving of immunity for a local lawmaker who led an armed group that carried out the rapes. It also upheld life sentences for those convicted. Karen Naimer, Director of PHR’s Program on Sexual Violence in Conflict Zones, had this to say about the appeal judgment: “The Kavumu case captured the world’s attention because of the young age of the survivors, the brutal injuries they endured, and the terror that gripped the families and community for more than three years. This landmark victory – at both the trial and appeal levels – has set a crucial precedent for Congolese justice: even a formidable lawmaker who abused power, and members of a powerful militia that abducted, raped, and instilled fear, are no longer be able to do so with impunity. With solid and compelling medical and legal evidence, the perpetrators of these grotesque crimes are finally being held to account and the survivors and their families will finally obtain a measure of justice.” Learn more about the incidents at the heart of this trial, and the innovations used to collect evidence, from a PHR video.

GavelThe European Court of Justice (ECJ) has ruled that extraditions from other European Union (EU) members to Poland can be blocked due to deficiencies in the Polish justice system. The case involves Polish national LM, subject of three European arrest warrants on charges of narcotics trafficking, who was arrested in Ireland in May. He refused to surrender to Polish authorities, claiming that he could not receive a fair trial in his home country. According to an ECJ press release, “[a] judicial authority called upon to execute a European arrest warrant must refrain from giving effect to it if it considers that there is a real risk that the individual concerned would suffer a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial on account of deficiencies liable to affect the independence of the judiciary in the issuing Member State.” According to Human Rights Watch, “In normal circumstances, extradition warrants between EU states are almost automatically executed due to agreement that EU states can trust each other’s justice systems. This type of cooperation between EU countries helps keep people in the EU safe. The new ruling indicates that Poland’s ruling Law and Justice (PiS) party has undermined this cooperation by decimating its judicial system.”

ICC buildingThe recently celebrated 20th anniversary of the founding of the ICC’s Rome Statute sees the institution facing unique challenges while also moving into new territory.

Human Rights Watch notes, for example, that the ICC “is on the brink of unprecedented moves, including a possible investigation in Afghanistan, while operating on a dangerously lean budget.”

The Court was found in June to be at fault by the International Labour Organisation (ILO) in the Libyan government’s detention of four ICC officials in June 2012 during a trip on Court business, and it was ordered to pay 340,000 euros in moral damages to two of the individuals. In determining these damages, an ASIL Insight reports, the ILO found the detention “was a direct result of the ICC’s failure to prepare for the mission and the damage the individuals suffered while in detention in Libya.”

The ICC opened a preliminary investigation in January 2015 into possible international crimes in Palestine, formally designated the matter as a "situation" in May 2018, and recently issued a Decision on Information and Outreach for the Victims of the Situation. This move prompted Israel to lodge a formal protest with Court, claiming that such an outreach campaign to victims of the situation in Palestine “is an unusual step which Jerusalem officials charge casts doubt on the court’s ability to treat the Jewish state fairly.”

In more recent days, in response to the findings of an investigation into crimes committed against the Rohingya population in Burma, the UN has called for Burmese military leaders to be investigated and prosecuted by the ICC or another credible mechanism. According to The Guardian, [m]uch now depends on the willingness of the UK and other veto-wielding UN security council members to forcefully pursue the allegations of genocide and crimes against humanity.”

Publications and Resources of Interest

Book cover of "Environmental Protection"A new title from Oxford University Press investigates environmental challenges in the aftermath of armed conflict. Environmental Protection and Transitions from Conflict to Peace: Clarifying Norms, Principles, and Practices is edited by Carsten Stahn, Jens Iverson and Jennifer S. Easterday. This comprehensive volume, which   systematically examines a new area of scholarship through theoretical inquiry, insights from different bodies of law, case-studies, theory, and practice, is an open access title through a Creative Commons license.

A photo of 12 skulls
Credit: Human Rights Watch. 12 skulls uncovered at
the site of the peacekeeping base in CAR

Two recent articles explore reactions to short sentences and early releases for persons convicted of egregious crimes.

A piece in The New Yorker, “Betraying Justice for Rwanda’s Genocide Survivors,” recounts how several of those who masterminded the mass killing of Tutsis are soon to find themselves out of prison. The author attributes the granting of early releases to the failure of the UN international criminal tribunals to “establish clear standards for sentence reductions.”

A commentary by Human Rights Watch deplores the inadequate sentences handed down to three African Union peacekeepers from Congo-Brazzaville who were posted in the Central African Republic to protect the local population. They instead detained and killed 12 individuals and then attempted to cover up their actions. While the peacekeepers were tried in their home country, they were treated lightly by the domestic judicial system. “It could have been a chance for Congolese authorities to set an example and show that international peacekeepers found guilty of serious crimes would be held accountable and punished appropriately. Instead, they shared little information with the public, their Central African counterparts, and the victims’ families. The three men were found guilty of war crimes but given sentences of just three years. They are now free.”

Special Opportunity

The Netherlands Institute of Human Rights and the Montaigne Centre for Rule of Law and Administration of Justice at the University of Utrecht School of Law have issued a call for papers on the intersections of law and culture at the International Criminal Court. The purpose of the project is to delve into the convergence and tensions between the cultural underpinnings and legal foundations of the ICC as a global institution. The project aims to bring together insights on the development and articulation of ideas regarding the multifaceted ways in which culture relates to the work of the ICC. Abstracts from both practitioners and academics working in the field of international criminal law and other relevant disciplines are welcome. For more information, read a Montaigne Centre blogpost by organizers Julie Fraser & Brianne McGonigle Leyh that provides background to the project.

Utrecht logo Montaigne Centre logo

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

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