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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.

February 2019

People in the News

WaldThe international justice community is mourning the loss of Patricia McGowan Wald, former judge of the US Court of Appeals and the International Criminal Tribunal for the former Yugoslavia (ICTY). International lawyer Diane Amman, in an IntLawGrrls tribute, reminds us that, at the ICTY, Wald “took part in noted judgments, among them a genocide conviction in Prosecutor v. Kristić and a ‘turning point’ appellate ruling in Prosecutor v. Kupreškić.” Amman goes on to note that even after her retirement from the ICTY, “Judge Wald championed international criminal justice, placing particular emphasis on women.” Brandeis University was fortunate to have Wald among the subjects of its Ad Hoc Tribunals Oral History Project. Read her profile page and access the full oral history here.

          MICT President Carmel Agius
In related news, the International Residual Mechanism for Criminal Tribunals, the successor body of the ICTY and the International Criminal Tribunal for Rwanda, has a new president. Carmel Agius took over MICT leadership from Theodor Meron, who led the institution during its first seven years of operation. Both Agius and Meron were long-time ICTY judges, and each also served as ICTY president. The two were frequent and active participants of the Brandeis Institute for International Judges. In counterpoint, another ICTY/MICT judge, Christoph Flügge, has just resigned his position, citing political pressure placed on judges in The Hague by Turkey and the US and the need for an independent judiciary. The MICT was also recently criticized in Opinio Juris, along with other international courts, for the overrepresentation of men on their benches.

  Patrice Edouard Ngaissona  credit: AFP
Patrice-Edouard Ngaïssona, the senior leader of the anti-Balaka group in the Central African Republic (CAR) – and well-known football official –  was arrested and surrendered by French authorities in December 2018 under a warrant issued by the International Criminal Court (ICC). He has now made his first appearance before the ICC Pre-Trial Chamber.  Ngaïssona is suspected of committing war crimes and crimes against humanity against the Seleka, a predominantly Muslim rebel group that overthrew the CAR government in 2013. Ngaïssona is the self-proclaimed political coordinator of the anti-Balaka, a majority Christian militia group that rose to fight against the Seleka. In November 2018, Alfred Yekatom, another former anti-Balaka leader, was surrendered to the ICC by CAR authorities, also for allegedly committing war crimes and crimes against humanity against the Seleka. The ICC will now consider whether to join these two cases.

      credit: Markus Schreiber/AP
The German government has announced that it will compensate survivors of the Kindertransport, a program that evacuated children, mostly of Jewish background, to Britain and other locations while Germany was under Nazi rule in the lead-up to WWII. The Conference on Jewish Material Claims Against Germany stated that each survivor will receive a one-time payment of €2,500 from the German government. Around 10,000 children were separated from their parents in Nazi-occupied countries and relocated through Kindertransport. There are an estimated 1,000 Kindertransport survivors with about half of them living in Britain. Chairman of the Association of Jewish Refugees Sir Erich Reich stated, “While no amount of money can ever compensate for our emotional or material losses, this award recognises our experience of being separated as children from our parents and having to live in an alien country with a foreign language and culture, and the unique story and act of rescue of the Kindertransport.”

Rrustem Mustafa credit: EPA/ VALDRIN XHEMAJ
Rrustem Mustafa and Sami Lushtaku, two former Kosovo Liberation Army (KLA) commanders, have been brought to the Kosovo Specialist Chambers (KSC) in The Hague to face questioning about their involvement in Kosovo’s war for independence against Serbia. A Pristina court previously jailed Mustafa for four years for torturing prisoners of war in a KLA detention center in 1998-99. Both Mustafa and Lushtaku have been politically active in Kosovo for many years. Ramush Haradinaj, the current Prime Minister of Kosovo who was acquitted twice for war crimes and crimes against humanity by the International Criminal Tribunal for the former Yugoslavia, expressed his support for Mustafa, Lushtaku, and the KLA. A spokesperson for the Specialist Prosecutor’s Office at the KSC, stated that his office does not provide information on investigations, but all allegations against KLA officials are being investigated.

                             credit: Reuters
The United States recently joined 13 other nations, members of the so-called “Lima Group,” in denouncing the legitimacy of Nicolás Maduro’s new presidential term in Venezuela and asking him to step aside in order to bring stability to the nation. For the last several years, Venezuela has been faced with a humanitarian, political, and economic crisis, characterized by widespread government corruption, food and medicine shortages, inflation, and human rights abuses. Some countries have even urged the International Criminal Court to investigate human rights violations in the country. More recently, opposition leader Juan Guaidó has declared himself interim president of Venezuela and is supported by thousands of citizens. After recognizing Guaidó as Venezuela’s president, the US was accused by Maduro of staging a coup against his government and its diplomats were ordered to leave the country, a decision which Maduro later rescinded. The Trump administration has now imposed sanctions against Venezuela’s state-owned oil company, which The New York Times describes as a punitive step intended “to cripple the government of embattled President Nicolás Maduro by cutting off its main source of cash.” The situation continues to evolve.

Developments in International Justice

On 15 January 2019, Trial Chamber I of the International Criminal Court (ICC), in a 2-to-1 decision, acquitted Mr. Laurent Gbagbo and Mr. Charles Blé Goudé from all charges of crimes against humanity allegedly committed in Côte d'Ivoire in 2010 and 2011. The majority declared that “the Prosecutor has failed to submit sufficient evidence to demonstrate the responsibility of Mr Gbagbo and Mr Blé Goudé for the incidents under the Chamber's scrutiny.” Although the same chamber ordered the two men’s release, following their acquittal, the Appeals Chamber subsequently decided that Mr. Gbagbo and Mr. Blé Goudé should remain in ICC custody pending its decision on the Prosecution’s appeal against Trial Chamber’s release order.  

ICC Prosecutor Fatou Bensouda is expected to appeal the majority’s decision to acquit, indicating that her office will carefully analyze the written judgment when it is released. An usual aspect of the acquittal is that it came via oral pronouncement, unaccompanied by a written judgment. This is problematic, notes a commentary in The Conversation, as “[w]ritten judgments are centrepieces of international criminal law, and legitimise the lengthy trials, long delays and high cost of international justice.”

Recent events have also sparked debate about the effectiveness of the ICC and international criminal justice more generally. The acquittal of Gbagbo and Blé Goudé follows that of former Democratic Republic of the Congo Vice President Jean Pierre Bemba in June 2018.  “Whenever a case involving mass atrocities essentially collapses at the ICC," said Mark Kersten, author of the Justice in Conflict blog, " it does damage to the perception of the court as a credible and effective institution of international justice.”  The acquittals also demonstrate how difficult it is for the ICC, Kersten notes, to prosecute state actors. “Not a single arrest warrant for international crimes has been issued for government actors since 2011. Many are thus concerned that the Court is emerging as an institution where only rebels can be and will be successfully prosecuted.”  International justice expert Morten Bergsmo contests this analysis; writing in Le Monde (in French), he declares that the failures of ICC proceedings are without discrimination.

Many human rights organizations have expressed their disapproval of the Gbagbo/Blé  Goudé acquittal. Amnesty International stated that it is a “crushing disappointment to victims of post-election violence” in Côte d’Ivoire who have yet to receive justice. The International Federation of Human Rights said the majority’s decision was disastrous for victims and signaled another step towards impunity for the crimes committed in Côte d'Ivoire.

Not everyone disapproves of the acquittal, however. Former Ad Hoc Tribunals Prosecutor Richard Goldstone has opined that “the fairness of any criminal justice system must be judged by acquittals and not by convictions.” The majority’s decision was also met with praise from supporters of the two acquitted men, in attendance at the ICC as well as back home in Côte d'Ivoire. Mr. Bemba promptly took to social media to express his approval and solidarity. 

Bemba tweet

IACHRThe Inter-American Commission on Human Rights (IACHR) has expressed deep concern over the death of two Guatemalan migrant children, Jakelin Caal Maquin and Felipe Gómez Alonso, while in the custody of the United States Border Patrol. Commission President Margarette May (Brandeis Institute for International Judges 2009 & 2012) stated that the US must carry out an independent investigation into both deaths as well as provide reparations to the parents and families of the two children. The IACHR reminded the US that it is responsible for upholding human rights standards and must consider individual circumstances of migrants, paying close attention to vulnerable groups such as young children, teenagers, elderly, and pregnant women. In response to the two deaths, the US Customs and Border Protection stated that medical staff would examine all children under the age of ten who are in custody and the Center for Disease Control would look into how Border Patrol and hospitals can better help sick children at the border.

          credit: Lukas Coch/EPA, via Shutterstock
Australia also finds itself under scrutiny for its treatment of migrants. Two class action lawsuits have been filed against the government by asylum seekers who attempted to reach Australia by boat but were instead detained in detention camps on the islands of Manus and Nauru, where they claim to have been subjected to crimes against humanity. The National Justice Project, which is representing the detainees, stated that the Australian government violated international law by not providing the asylum seekers with adequate food and water or proper shelter and medical care. Detainees have also described the high rates of mental health issues, self-harm, and suicide in the camps. The Australian government has not commented on the lawsuits and the Department of Home Affairs previously deemed the camp conditions adequate. 

                         credit: Reuters
The African Court of Human and Peoples’ Rights (ACtHPR) has ordered the Rwandan government to pay 65 million Rwandan francs (approximately USD 75,000) to Victoire Umuhoza Ingabire as compensation for moral and material prejudice she suffered while in prison. Ingabire planned to run for president of Rwanda in 2010 against incumbent President Paul Kagame but she was instead arrested for making comments about the Rwandan genocide that were considered controversial by the government. She was subsequently sentenced to a 15-year prison term for propagating the idea of genocide, terrorism, and attempts to sabotage the security of the State. Ingabire claims, however, that she was jailed simply because she wanted to run for president and had opposing views to those of Kagame. Ingabire was granted a surprise release from prison in September 2018 along with 2100 other Rwandan prisoners. Her successful case before the ACtHPR was begun in 2014 while Ingabire was in prison.

           credit: JEPA-EFE/Youssef Badawi
Lawyers in The Netherlands, applying the doctrine of universal jurisdiction, are preparing to bring cases before Dutch courts concerning the pain and suffering caused by the Syrian Civil War. The conflict in Syria, which began as an uprising against Syrian President Bashar al-Assad in 2011, has killed about 500,000 persons and brought about many human rights abuses, including the use of chemical weapons. Efforts to bring justice have proven challenging as powerful states have varying views on the conflict. The International Criminal Court (ICC) does not have jurisdiction over the situation because Syria is not a member of the Court. The UN Security Council could refer a case about Syria to the ICC, but members of the P-5 sympathetic to Syria, namely China and Russia, would likely thwart that decision. Lawyers are consequently attempting to bring individual cases before European courts to obtain reparations for victims.  In November 2018, French prosecutors issued arrest warrants for three Syrian officials for alleged war crimes.

                credit: Seyllou-AFP
Two national peace-finding processes have begun their work after years of strife and alleged human rights abuses. 

Gambia has started hearings for its Truth, Reconciliation and Reparations Commission (TRRC), which was created to shed light on human right abuses committed by former dictator Yahya Jammeh between 1994 and 2017. Amnesty International stated, “The start of the TRRC hearings is an important initial step towards securing justice, truth and reparations in Gambia and shows a strong commitment by the government to break with a past of systematic human rights violations.” 
Colombia has also committed to bringing justice to victims of past crimes through its Special Peace Tribunal. The tribunal was established as part of the peace deal between the Colombian government and the Revolutionary Armed Forces of Colombia to address injustices that occurred during the more than 50-year civil war. In addition to the tribunal, an independent truth commission will look into the roots of the conflict and a unit will investigate the disappearances of around 83,000 people. The tribunal’s future remains uncertain, however, given continued opposition to the peace process and renewed violence in rural areas by other armed groups.

   credit: Campaign Wale
Japan recently announced that it would pull out of the International Whaling Commission and resume commercial whaling.  While a member of the Commission, which bans the hunting of whales, Japan was still allowed to kill whales for scientific research. However, many opponents of the practice claimed that Japan was using research as a cover for commercial whaling. This matter came before the International Court of Justice (ICJ) in Australia v. Japan: New Zealand intervening. The ICJ ruled in 2014 that Japan was not performing enough scientific research to justify killing whales and ordered Japan to stop whaling activity in the Southern Ocean. One positive aspect to Japan’s recent declaration is that its commercial intentions are now out in the open. The leader of the environmentalist group Sea Shepherd stated, “This means that Japan is now openly declaring their illegal whaling activities. No more pretense of research whaling. With this announcement, Japan has declared themselves as a pirate whaling nation.”

Biljana Plavsic, credit: EPA/Drago Vejnovic
While the perpetrators of war crimes and atrocities during the 1990s Balkan conflict are usually pictured as men, a recent ruling by the Belgrade Higher Court countered this image. The court sentenced Ranka Tomic, a former Bosnian Serb soldier, to five years in prison for participating in the torture and murder of another woman, an 18-year-old Bosnian Army nurse. According to Balkan Insight, “Most of the accounts of the 1990s wars in the Balkans only mention women as victims, mostly civilian ones. However, many women did join military units. The exact numbers are not known, but the Army of Bosnia and Herzegovina, the Bosniak-led wartime force, had 5,360 women in its ranks; some were engaged in logistics and some were fighters.” The most famous woman charged with crimes in the Balkans, who was indicted and ultimately convicted by the ICTY, was Biljana Plavsic, the former president of Bosnia’s Serb-dominated entity Republika Srpska.

Publications and Resources of Interest

bookIn June 2009, Richard Goldstone was a global hero, honored by the MacArthur Foundation with its prize in international justice. Four months later, he was called a “quisling” and compared to some of the worst traitors in human history. The Trials of Richard Goldstone (Rutgers University Press, December 2018), written by Daniel Terris – Director Emeritus of Brandeis’ International Center for Ethics, Justice and Public Life – tells the story of this extraordinary individual and the price he paid for his commitments to fairness and the truth. Goldstone’s dramatic life story – which includes prominent roles in pre- and post-Apartheid South Africa, the development of international criminal justice, and investigations into Israeli action in Palestine – reveals that even in a world rife with prejudice, nationalism, and contempt for human rights, one courageous man can advance the cause of justice.

If you are in the Boston area, please join us at 5pm on 18 March 2019 at Brandeis University for a book launch and discussion. The event will feature both the author and his subject, and be moderated by John Shattuck, former US Assistant Secretary of State for Democracy, Human Rights and Labor. Read more about the event here.

ILOA new report by the International Labor Organization (ILO), “Work for a Brighter Future”, proposes a “human-centred agenda for the future of work,” advocating bold action to reduce inequalities and uncertainties in employment by increasing education, training, and support programs; solidifying workers’ rights and protections; and, expanding investment in decent and sustainable work. According to the International Justice Resource Center, the ILO report “urges governments to seize opportunities presented by technology, the green economy, and demographic changes. Its key recommendations include instituting: a ‘universal labour guarantee’ that includes a right to an adequate living wage regardless of employment situation; lifelong social protection; lifelong educational and training opportunities; gender equality initiatives; and new private investment incentives to benefit historically excluded or under protected workers.”

AJILA new issue of AJIL Unbound, The Next Frontier in International Investment Law, features a symposium on investor responsibility. The symposium introduction notes that “investors enjoy a suite of rights and privileges without corresponding responsibilities in international investment law. The international investment regime is designed to redress the mistreatment of foreign investors, not foreign investor wrongdoing …Despite some progress, imposing responsibility on corporations for human rights abuses in foreign courts also remains elusive.” The full introduction and six articles may be accessed free of charge here.

StahnAnother exciting open-access title now available is A Critical Introduction to International Criminal Law (Cambridge University Press, December 2018) by well-known scholar Carsten Stahn. The book is organized around five themes that are at the heart of contemporary dilemmas in the field: the shifting contours of criminality and international crimes; the tension between individual and collective responsibility; the challenges of domestic, international, hybrid and regional justice institutions; the foundations of justice procedures; and approaches towards punishment and reparation. The publisher deems the work suitable for students, academics and professionals from multiple fields wishing to understand contemporary theories, practices and critiques of international criminal law.

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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