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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.

June 2019

People in the News

Photo of Zeid Ra'ad Al Hussein with the UN flag behind him (map that is inside a wreath)
         credit: Reuters

Former UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein recently published a New York Times video opinion piece  where he deplores the current state of human rights around the world. Zeid declares that “most of our political leaders are morally weak, short-sighted and mediocre.” Whereas human rights violators used to have something to fear, he continues, “today the silence of those public officials is astounding, their hypocrisy sickening, and I fear they are no longer willing or able to defend the human rights of all people. And as a result, the worst human rights offenders are able to act with complete impunity.” The “transatlantic authoritarians” Victor Orban and Donald Trump, whose recent meeting in the White House was criticized in a Boston Globe op-ed by former president of the Central European University and human rights luminary John Shattuck, may exemplify the kind of leaders called out by Zeid. 

Picture of the International Criminal Court buildingZeid also recently joined his voice to that of other former presidents of the Assembly of States Parties – Bruno Stagno Ugarte, Christian Wenaweser, and Tiina Intelman – in a declaration that the International Criminal Court (ICC) needs fixing. The declaration opens with the statement, “As strong supporters of the International Criminal Court, we believe that an independent assessment of the Court’s functioning by a small group of international experts is badly needed.” The authors note with disappointment, in particular, the Court’s recent decision to forego an investigation into war crimes and crimes against humanity allegedly committed in Afghanistan. In a Jurist commentary, International Bar Association Executive Director Mark Ellis deconstructs the "interests of justice" principle used by the Pre-Trial Chamber in rejecting the investigation. Scholar Douglas Guilfoyle also weighed in on what he calls the Court’s “self-inflicted misfortunes” in a lengthy EJILTalk! blogpost entitled “Reforming the International Criminal Court: is it time for the Assembly of States Parties to be the adults in the room?” Commentator Mark Kersten takes a different tack, acknowledging the need for the ICC to pursue cases more likely to end in convictions while noting that the Court "should not have to sacrifice aspiration at the altar of practicality."

Photo of two men and one woman sitting at a table together. The man on the right is speaking while the others are watching him.

Another critical perspective on the ICC comes from scholar Phil Clark. In his recently published monograph Distant Justice: the Impact of the International Criminal Court on African Politics (Cambridge University Press), Clark describes an array of institutional failures that arise from the Court's geographic, cultural, and political distance from the situations it investigates and prosecutes, a strategy pursued in the name of impartiality. Yet a recent debate about the need for ICC reforms between Clark and Justice Richard Goldstone, first Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, suggests that ICC critiques may reflect a fundamental support for the Court's aims rather than a wish for its demise. View the full discussion between Clark and Goldstone, hosted by the Institute for Security Studies in Pretoria, at this link.

Photo of people walking and carrying supplies with a house and palm trees in the background. There is a woman pushing a wheelbarrow and a man walking with a child.
credit: Matthew Abbot, The New York Times

Should states be required to safeguard a livable environment for their citizens? Indigenous Australians in the Torres Straits Islands, north of the mainland, claim that their government, by failing to take adequate steps to reduce carbon emissions, has contributed to rising sea levels and the inundation of culturally significant lands. A group of islanders has now taken their case to the UN, claiming that the Australian government has violated their fundamental human rights, including the right to maintain their culture. According to The New York Times, the Torres Straits islanders are “the first to seek the weight of the United Nations behind such a climate claim, and it could set a precedent for how the populations most vulnerable to the effects of global warming can seek redress under international law.”

Protestors holding signs that say "Human rights defenders."
credit: Amnesty International

How does the use of social media impact the work and safety of human rights defenders? How can social media companies provide open debate without inadvertently putting vulnerable groups at risk? A new report by the American Bar Association uses the case of Guatemala to explore these questions and propose some safeguards. The report’s introduction notes that “social media companies provide a platform for human rights defenders to share information and express opinions. At the same time, they are increasingly being used to target and harass human rights defenders, including journalists, environmental activists and lawyers.” The ABA Center for Human Rights asked the International Human Rights and International Law Clinic at the University of Connecticut School of Law to examine whether the content moderation policies of social media companies are sufficient to mitigate the risk of violence from online hate speech against human rights defenders in Guatemala. This study focused on the situation in Guatemala to illustrate the need for more targeted content moderation policies and practices. 

Developments in International Justice

Photo of the Chagos Islands, with blue ocean and trees being seen, as well as clouds in the sky.
credit: CNN

Through a vote of 116 to 6, the United Nations General Assembly has told the United Kingdom in no uncertain terms that it should turn over sovereignty of the Chagos Islands to Mauritius. This was the finding of an advisory opinion by the International Court of Justice (ICJ) in February 2019 and the General Assembly resolution, although non-binding, urges Britain to end its control of the Indian Ocean archipelago as soon as possible. Mauritian officials, according to The New York Times,  considered the ICJ ruling “an affirmation of their claim that Britain, as a colonial power, had wrongfully detached the Chagos Islands from Mauritius in 1965 before granting the colony independence.” Prime Minister Pravind Jugnauth of Mauritius, who spoke to the General Assembly before the vote, said “One would have hoped that any country found to be engaged in an unlawful act by the highest court in the world would have hastened to make amends.” He added that rejection of the resolution “would be nothing less than an endorsement of colonialism.” This sovereignty debate is complicated by the fact that Britain has leased one of the Chagos Islands, Diego Garcia, to the United States where it operates a strategic military base. 

Photo of Yusuf Abdi Ali
Yusuf Abdi Ali. Credit: CBC

A US federal court has found former Somali army commander Col. Yusuf Abdi Ali, now living in the state of Virginia, responsible for the torture of a young Somali herder more than thirty years ago during Somalia’s civil war. The civil case was initiated fifteen years ago by plaintiff Farhan Warfaa – represented by the Center for Justice and Accountability (CJA) and the law firm of DLA Piper LLP – under the Torture Victim Protection Act. Warfaa claimed that in 1987 he was rounded up with other villagers and taken to a headquarters commanded by Ali, where he was repeatedly interrogated and tortured following Ali's orders, then shot at point blank range and left for dead. A CJA press release recounts that evidence presented at trial included eyewitness testimony from former officers of the Somali National Army and other survivors of Somali National Army abuses, as well as expert testimony from a former U.S. Special Envoy to Somalia and medical experts. The jury awarded Mr. Warfaa $500,000 in damages, including $100,000 in punitive damages. The BBC adds depth to this story, reporting that Ali was first identified in a 1992 documentary by the Canadian Broadcasting Corporation, which detailed allegations that Ali had tortured, killed and maimed hundreds of people while working for Somali dictator Siad Barre’s regime. This exposure led to Ali’s deportation from Canada for human rights abuses, at which time he moved to the US. Ali was until recently a rideshare driver who apparently passed the background checks for both Uber and Lyft, before which he worked as a security guard at Dulles International Airport.

There has been a flurry of activity at the International Tribunal for the Law of the Sea (ITLOS). Switzerland has requested provisional measures in a dispute with Nigeria concerning the arrest and detention of a vessel, its crew and cargo. An ITLOS press release notes that “[a]ccording to the Request of Switzerland of 21 May 2019, the San Padre Pio, a motor tanker flying the flag of Switzerland, ‘was intercepted and arrested by the Nigerian Navy on 23 January 2018’ while it was engaged in ship-to-ship transfers of gasoil in the exclusive economic zone (EEZ) of Nigeria. The vessel was then ordered to proceed to Port Harcourt (Nigeria), where it is still detained. Switzerland submits that Nigeria has ‘breached its obligations owed to Switzerland in regard to its freedom of navigation and its right to exercise exclusive jurisdiction over the “San Padre Pio’.”

ITLOS has also now delivered its Order on provisional measures in the case concerning the detention of three Ukrainian naval vessels by Russia (Ukraine v. Russian Federation).  By an overwhelming majority, with only the Russian judge dissenting, the bench ordered that Russia release both the vessels and their 24 crew members to Ukraine, pending the submission of further information and reports by the parties later this month.

Logo of the International Tribunal for the Law of the Sea. Had a scale on water inside a wreath and the title in French ("Tribunal international du droit de la mer").

Picture of ISIS fights with the Swedish flag in the background
credit: The Federalist

The government of Sweden is proposing that an international tribunal be created to prosecute ISIS fighters for the crimes they committed in Iraq and Syria. The court would be modeled on the International Criminal Tribunals for the former Yugoslavia and Rwanda, and it would ideally be headquartered in Iraq to facilitate access to witnesses, evidence, and crime scenes. Sweden hopes to convene a European summit in June to address the situation and is already expecting the UK, France, and The Netherlands to participate. According to The Local, “at least 300 Swedes travelled to Syria and Iraq between 2012 and 2017 to join extremist groups, including Isis. Roughly half of them are believed to have returned to Sweden, while around 50 are thought to have been killed and another 100 remain in the region… Few returning Isis terrorists have been arrested and prosecuted in Sweden due to current laws which require evidence of active involvement in terrorist crimes in order to prosecute suspects.”

The question of how to prosecute former ISIS fighters from Europe has become more urgent after four French citizens were sentenced to death upon conviction on terrorism charges by an Iraqi court. Although France opposes the death penalty, The Guardian reports that its government "has long insisted that its adult citizens captured in Iraq or Syria must face trial locally, refusing to repatriate them despite the risk of capital punishment."

In a somewhat surprising embrace of contemporary trends, the International Court of Justice (ICJ) has launched a mobile device app. According to an ICJ press release, “[t]he free app, called CIJ-ICJ, allows users to keep abreast of developments at the Court in its two official languages, French and English, by providing essential information on the Court and its activities, including on pending and concluded cases, decisions, press releases and the Court’s judicial calendar. It also allows users to receive real-time notifications as soon as a new decision or press release is published, and enables members of the media to register for accreditation for the Court’s public hearings and readings.” Several international justice bloggers expressed their bemusement via Twitter. 

Tweet from Dov Jacobs that reads "To think that it was only a few years ago (for the 70 years of the @CIJ_ICJ maybe?) that they invited us to send abstracts to participate in an anniversary conference... by mail! And now they have an app!" Tweet Jacobs is responding to is from Prof. Gentian Zyberi, which states: "The International Court of Justice, the principal judicial organ of the United Nations, had just launched a mobile device app. This is big and I'm not quite sure what's next (perhaps a video game on legal strategie before the ICJ?)! More information at..."

Photo of two women and two children. The front woman is holding one of the children. There is a house in the background that is destroyed.
credit: CNN

A recent blogpost by Kristin Bergtora Sandvik reminds us that women continue to be vulnerable to sexual exploitation in situations of conflict and natural disaster, often falling victim to “predatory aid workers,” both local and international. Women may be coerced into trading sexual favors for food, shelter, and even resettlement registration as they confront or flee disruptive circumstances. Sandvik writes, “[s]exual exploitation must be recognized as a real and widespread problem. There must be staff and management accountability. Transgressions must be sanctioned through disciplinary or penal measures. But there are also major dilemmas that need to be understood and tackled by governments, agencies, and, most importantly, local communities.”

Photo of Omar al Bashir with the words "Omar Al-Bashir is WANTED. 3 Counts Genocide in Darfur. 5 Counts Crimes against humanity. 2 Counts War crimes."

Now that Sudan’s longtime dictator Omar al Bashir has been toppled and imprisoned, what are his chances of facing justice at the ICC, where arrest warrants against him for genocide, war crimes and crimes against humanity have long been active? While many observers believe that the chances are slim, a recent commentary by Victor Peskin, Eric Stover and Alexa Koenig suggests that “Bashir’s fate depends to a great extent on Sudan’s uncertain political transition.” Reviewing the trajectory of various former heads of state sought after by institutions of international justice, they write, shows that shifting national circumstances may leave these individuals vulnerable, even when they have been promised a domestic trial or protection from prosecution altogether.

In the meantime, there has been an outcry from many quarters in response to the ICC’s recent appeals decision confirming Jordan’s non-cooperation in the arrest of Bashir when he visited Amman in 2017 but reversing its decision to refer Jordan to the United Nations Security Council for its inaction. Blogger Dov Jacobs was particularly incensed by the Court’s response to this widespread criticism of the decision – issuing a “Q&A regarding Appeals Chamber 6 May 2019 Judgment in the Jordan Referral re Al-Bashir appeal” without indicating which organ of the Court prepared it. After summarizing the judgment’s findings – in, it would appear, a less than clear cut fashion – the Q&A document takes the unusual tack of chiding users of social media for their commentaries and tweets which “fail to appreciate the totality and nuances of the Court’s reasoning, and may wholly misrepresent the decision or judgment.” The Q&A also berates lawyers who engage in commentary, impugning their honesty, fairness and integrity.  Jacobs concludes his own remarks with this statement: “I don’t see how this is a good communications strategy on the part of the Court. This defensiveness and aggressivity give out an impression of weakness and nobody will change their mind based on the Q&A.” 

Parade in Catalan, Spain. Flags of Catalan are being held with the word "Independencia" seen held by marchers.

The European Court of Human Rights (ECtHR) has unanimously held inadmissible the application made in the case of Forcadell i Lluis and Others v. Spain (application no. 75147/17). This case concerned the Spanish Constitutional Court’s decision to suspend the plenary sitting of the Parliament of the Autonomous Community of Catalonia on 9 October 2017, soon after the Catalan Independence Referendum of 1 October 2017 where an overwhelming number of voters opted for Catalonia to become an independent republic. The ECtHR held that the interference with the applicants’ right to freedom of assembly could reasonably be considered as meeting a “pressing social need.” The suspension of the plenary sitting of the Parliament of the Autonomous Community of Catalonia had been “necessary in a democratic society,” in particular in the interests of public safety, for the prevention of disorder and for the protection of the rights and freedoms of others, within the meaning of Article 11 § 2 of the European Convention on Human Rights. Furthermore, the Court observed that the decision by the Bureau of the Parliament to convene a plenary sitting had involved a manifest infringement of the decisions previously given by the Constitutional Court, pursuing the aim of protecting the Constitutional order. This decision of the ECtHR is final.

At almost the same time, a report of the UN Working Group on Arbitrary Detention calls for the release of three Catalan separatists, detained since last 2017 by the Spanish government and currently on trial in Madrid. According to The Guardian, the report calls their detention arbitrary and adds that "given the circumstances of the case, the correct solution would be to free [the trio] immediately and offer them the right to obtain compensation and other forms of reparation in accordance with international law.” The fugitive Catalan leader Carles Puigdemont has welcomed the UN report.

Publications and Resources of Interest

A group of five soldiers. 2 are seen clearly with their guns and they are hiding behind an army truck.A recent commentary on the ICRC’s Humanitarian Law and Policy blog examines the intimate connections between masculinity, violence and war. Graham Parsons, Associate Professor of English and Philosophy at the United States Military Academy, reflects on how “warrior masculinity” presumes not only a willingness to enact violence but also to submit to violence for a perceived greater good. These traits are not innate but instead socially constructed and imposed, and they may become core to what it means to be a man. Parsons notes that the laws of war are very lenient about the kinds of violence that can be used against enemy combatants and the numbers that can be killed, and there is sometimes spillover onto non-enemy combatants. President Trump’s stated intention of pardoning several accused or convicted war criminals has recently brought illegitimate violence into the public eye, and it has also generated much pushback by those in both legal and military spheres, such as former international prosecutor and US Army judge advocate David Crane and retired Army Gen. Martin Dempsey, who fear that condoning outlawed actions may open the doors for escalating violence and lack of discipline. Parsons writes what many people think but may hesitate to say: “Masculinity is an important factor explaining why noncombatants killed or detained in war are mostly men. It also explains why most mass shootings and terrorist atrocities are committed by men, especially young men.”

Read other ICRC commentaries about men and war by Hugo Slim, David Duriesmith, and Gilbert Holleufer.

Whanganui River in New Zealand. See the water and some trees, with the sun rising in the left corner of the picture.
Whanganui River of New Zealand,
which holds the status of legal person

A recent article in Ecology Law Quarterly by Cristy Clark, Nia Emmanouil, John Page, & Alessandro Pelizzon – “Can You Hear the Rivers Sing? Legal Personhood, Ontology, and the Nitty- Gritty of Governance” – examines the new and evolving legal status of nature as reflected by cases from Ecuador, Colombia, India, New Zealand, the United States, and Australia. As noted in the introduction, the article “explores what this emerging Ecological Jurisprudence means for the legal personhood of rivers. Nature, the environment, and even single complex ecosystems, are seldom easily quantifiable as bounded entities with geographically clear borders. Within the complex spectrum of establishing where a legal subject ends and another begins, however, rivers are more easily identifiable. A river’s very being is premised on historicized boundaries that measure its watery ambit from riverbed to riverbank. Still, rivers elude a final, clearly defined, and uncontroversial description. As a result, they inhabit a liminal space, one that is at the same time geographically bounded, yet metaphorically transcendent, physically shifting, and culturally porous.” 

Book cover of "Research Handbook on International Law and Peace." The cover shows doves flying around a scale that is inside a wreath.A new volume aims to correct the sidelining of the concept of peace in scholarship on international law. Editor Cecilia M. Baillet recently blogged about The Research Handbook on International Law and Peace. She writes, “Peace is an elusive concept, especially within the field of international law, varying according to historical era and between contextual applications within different cultures, institutions, societies and academic traditions. This Research Handbook responds to the gap created by the neglect of peace in international law scholarship. Explaining the normative evolution of peace from principles of peaceful co-existence to the UN declaration on the right to peace, this Research Handbook calls for the fortification of international institutions to facilitate the pursuit of sustainable peace as a public good.”

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

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