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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.

May 2019

People in the News

         credit: Reuters

The world has been following events in Sudan closely since the fall in mid-April of Sudan’s president Omar al Bashir, who ruled his country with an iron fist for 30 years. The situation since then has been fluid, as reported in Just Security, with continuing protests by pro-democracy groups and, more recently, the resignation of core members of Bashir’s regime under pressure. In an open letter, Sudanese and other African civil society organizations urge the African Union "to take a strong stand with the people of Sudan, demanding an expeditious transfer of governmental authority from the current Transitional Military Council and setting up comprehensive mediation and support mechanisms that will support a sustainable transition to democratic rule." A commentary in OpenCanada reminds us that “[p]roponents of international criminal justice often believe that getting rid of a political leader will invariably lead to peace. But that is not enough. Getting rid of Bashir will rid Sudan of its figurehead, but not of a system that is replete with perpetrators of atrocities.” A question was immediately posed by members of the international community: will Omar al Bashir finally be turned over to the International Criminal Court? For over 10 years, he has been the subject of ICC arrest warrants for alleged crimes against humanity and genocide in the Darfur region of Sudan. He has also, since then, traveled repeatedly to ICC member countries without being arrested. The likelihood of seeing Bashir extradited seems small as he is currently being held in a Sudanese prison. It is perhaps appropriate that he is locked up, as reported by the BBC “in the very place where so many of his victims were held, tortured and killed.” 

higginsTribute is being paid to Polly Higgins, a British barrister and activist who committed her life to the establishment of ecocide as an international crime. As explained by The Guardian’s George Monbiot, “[t]his means serious damage to, or destruction of, the natural world and the Earth’s systems. It would make the people who commission it – such as chief executives and government ministers – criminally liable for the harm they do to others, while creating a legal duty of care for life on Earth.” Higgins just died, tragically, at the age of fifty. Read more about her life, and her quest to reinstate the crime of ecocide in the global consciousness after it was eliminated from early drafts of the ICC’s Rome Statute, in The Guardian’s obituary

DRC President Tshisekedi

The leader of a widely-feared militia in the Democratic Republic of Congo (DRC), Masudi Alimasi Kokodiko, has been captured in South Kivu. Reuters reports that Kokodiko is accused of orchestrating mass rapes and other atrocities, as well as the use of child soldiers. Felix Tshisekedi, Congo’s president since early 2019, has pledged to address the militia violence that plagues the eastern part of DRC. Another infamous warlord is currently on trial for similar crimes. 

koumjianNicholas Koumjian of the United States has been appointed as Head of the Independent Investigative Mechanism for Myanmar, established by the United Nations (UN) Human Rights Council in September 2018 in response to alleged crimes against the Rohingya Muslim population. As reported by the UN, Koumjian has a long experience as both a prosecutor and legal counsel, most recently in the international sphere where he served in the Extraordinary Chambers in the Courts of Cambodia, International Tribunal for the former Yugoslavia, War Crimes Section of the Prosecutor’s Office for Bosnia and Herzegovina, and Special Court for Sierra Leone. The role of the Independent Investigative Mechanism for Myanmar is (i) to collect, consolidate, preserve and analyze evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011, and (ii) to prepare files in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law.   

african descentThe European Parliament recently passed a historic resolution that calls on European Union member states, for the first time, to protect and promote the equal enjoyment of rights for people of African descent. The document, titled the Resolution on Fundamental Rights of People of African Descent in Europe, is being welcomed as a “watershed moment” as it sends a signal to EU Member States to tackle structural racism that prevents Black people from being included in European society. Read more from the Raoul Wallenberg Institute. 

ozakiThere is controversy swirling around Judge Kuniko Ozaki of the ICC, who recently asked permission to be redesignated as a non-full-time judge as she completes a judgment, along with two colleagues, in the trial of Bosco Ntaganda. After the majority of the 18-member ICC bench approved the request, with three dissents, it became clear that Ozaki was in reality about to be appointed to the post of Japan’s ambassador to Estonia. It also turns out that Ozaki had threatened to quit the bench entirely if her colleagues did not approve her request, a situation that would slow down the completion of Ntaganda’s proceeding considerably. Full details are provided in an Opinio Juris commentary, which characterizes the situation as “truly scandalous — even by the ICC’s standards;” it suggests that Ozaki’s behavior clearly constitutes an ethical violation and that she should either resign or be removed by the Assembly of States Parties. The situation has also had cascading consequences for the case itself.  Ntaganda’s defence has requested a temporary stay of deliberations until the matter can be litigated, the Office of the Prosecutor and the Office of Public Counsel for the Victims have protested this move, and the trial chamber, Judge Ozaki abstaining, has issued several decisions on various aspects of this complicated matter. The drama continues. 

Developments in International Justice

iccIn another controversy surrounding the ICC, a Pre-Trial Chamber has rejected the Prosecutor’s request to open a full investigation into war crimes and crimes against humanity allegedly committed in Afghanistan, including possible acts of torture carried out by US forces and the CIA. The judges argued that such an investigation would not be in “the interests of justice.” International lawyer and commentator Alex Whiting acknowledges the perception that the ICC gave in to US pressure, especially after authorities recently revoked Prosecutor Bensouda’s visa for travel to the US. But Whiting thinks this view is simplistic, arguing that “this decision will likely come to be seen as the beginning of a broader effort by the judges and the Prosecutor to orient the Court’s very limited resources toward those investigations where there exists some meaningful prospect of success.”  

But not everyone agrees with this point of view. An Afghan human rights organization declares that the decision “shatters hopes for justice.” Another commentator assessed the Court’s arguments around the interests of justice as “astounding in their shallowness,” especially as no prior jurisprudence was referenced. Some are hoping that the ICC will reverse its decision upon appeal by the Prosecution and that an investigation will be opened in the end. Even if no US official ends up before the Court, writes justice blogger Mark Kersten, an investigation into events in Afghanistan could bolster the ICC’s legitimacy. The global community, he argues, will judge the ICC “as an international organisation going where none has gone before: putting major powers on notice for their abuses. The inevitable tantrums that would follow any arrest warrants for US officials would only boost the perceived legitimacy of the court, especially among those who never expected that an international tribunal would ever confront American power.”

Amal Clooney at the UN
credit: Seth Wenig, AP

The United Nations has passed a resolution against rape used as a weapon of war, but only after members conceded to the demands of the United States to remove all language regarding sexual and reproductive health for rape victims. Otherwise, the US threatened to veto the entire resolution, indicating that such language was at odds with the anti-abortion stance of the Trump administration. There was much opposition to watering down the resolution in this manner, as heard in these filmed remarks by human rights lawyer Amal Clooney - who called the adoption of the resolution a "Nuremberg moment" - and French Ambassador to the UN François Delattre. According to The Guardian, a draft resolution had “already been stripped of one of its most important elements, the establishment of a formal mechanism to monitor and report atrocities, because of opposition from the US, Russia and China, which opposed creating a new monitoring body.”

logoThe East African Court of Justice (EACJ) has ruled that the 2016 Tanzanian Media Services Act is in violation of the treaty establishing the East African Community, which stipulates the enjoyment of fundamental rights. The case, which resulted in a landmark victory, was brought before the EACJ by several civil society media organizations. According to ASIL International Law in Brief, the claimants “argued that several provisions of the Act create ‘an unjustified restriction on the freedom of expression.’ In particular, they argued that the Act violates freedom of expression by restricting certain content without a reasonable justification; criminalizing defamation, the publication of false news and rumors, and seditious statements; and granting the Minister for Information the power to prohibit the import of publications and to sanction media content.” 

ecthrThe European Court of Human Rights (ECtHR) has ruled that Turkey denied a Turkish Constitutional Court judge his rights to liberty and security and ordered that he be paid compensation. Alparslan Altan was jailed immediately after the 2016 coup attempt in Turkey, along with thousands of other judges, prosecutors, and civil servants who were accused of participating in the Gülen movement. Altan applied to the Constitutional Court, claiming unjust confinement in pretrial detention, but the Court found his incarceration justified. The Turkish government has defended the detention of Altan, citing emergency measures. The ECtHR observed that "the measures taken against the applicant could not be said to have been strictly required by the exigencies of the situation for the purposes of Article 15 (derogation in time of emergency) of the convention.” 

shipThe International Tribunal for the Law of the Sea (ITLOS) has delivered its judgment in The M/V “Norstar” Case (Panama v. Italy) case. The M/V Norstar is a Panamanian Vessel which was responsible for delivering gasoil to mega yachts in international waters beyond the territorial sea of Italy, France, and Spain between 1994 and 1998. The ship was arrested by Spanish officials on 24 September 1998 due to the supplying of oil in contravention of Italian legislation. On 17 December 2015, Panama submitted an application to the Tribunal which requested compensation from Italy for damage caused by the illegal arrest of the M/V Norstar in 1998. Panama contended that Italy had violated several provisions of the United Nations Convention on the Law of the Sea (UNCLOS), in particular the right of freedom of navigation. In its judgment, ITLOS found that Italy did not breach Articles 87(2) and 300 of the UNCLOS. It found (by 15 votes to 7) that Italy breached Article 87(1), but reduced damages to less than 1% of the amount sought by Panama.

In other ITLOS news, Ukraine seeks provisional measures in a dispute with Russia concerning the detention of three naval vessels and their crews. Hearings on the matter will take place on 10 and 11 May 2019. For more details, see an ITLOS press release.

Sultan of Brunei. AFP/Getty Images

A recently-enacted criminal law in Brunei, based on Islamic law, has engendered harsh criticism against this small monarchy in Southeast Asia. The law calls for death by stoning for sex between men or for adultery, and amputation of limbs for theft. Human Rights Watch Deputy Asia director Phil Robertson stated, “Brunei’s new penal code is barbaric to the core, imposing archaic punishments for acts that shouldn’t even be crimes.” Brunei may increasingly feel the effects of being an outlier nation as a growing list of multinational banks ban employees from staying at hotels owned by the sultan of Brunei, which include luxury names such as Los Angeles’ Beverly Hills Hotel and Hotel Bel-Air, and London’s Dorchester and 45 Park Lane. Deutsche Bank had earlier announced its boycott of Brunei-owned properties in early April as a sign of support for LGBTQ rights. Read more from CNBC

Publications and Resources of Interest

trialHow were the sounds of the Nuremberg Trials saved for posterity? A recent article in The Verge recounts how Philip C. Erhorn, the chief technician at Nuremberg, cobbled together an innovative sound system that relayed and recorded the voices in the courtroom and their interpretation into multiple languages. “The system fed the translation audio into a now-antique recorder called a recordgraph, which looks more like an old movie projector than an audio device. Meanwhile, the prosecutor, witnesses, and defendants were recorded in whichever language they spoke, verbatim. The words of their native tongues were relayed to a hi-fidelity gramophone recorder, and a stylus etched the sound waves into the surface of circular black disc records. The grooves the stylus traced contained the voices of the Nuremberg trials.” Read the full details of how the system, still used by the United Nations today, was pioneered in this high stakes judicial context.

bookA recently published volume, edited by retired Judge of the New Hampshire Supreme Court Joseph Nadeau, collects the reflections of judges and practitioners who have engaged in transnational judicial exchange and rule-of-law training. The various essays in At Home Abroad: Friendship First – a Look at Rule of Law Projects and Other International Insights is a testament to the effect that such interactions can have on legal practice and network building. Judge Nadeau writes, “I had the good fortune to work with hundreds of judges, government leaders and in-country specialists; conducting training programs for judges, staff, prosecutors, and defenders in the former Russian Republics, Central and Eastern Europe, the Middle East, and Southeast Asia. The experiences of the authors set out in this book demonstrate the impact of international cooperation.”

Authors include judges and practitioners from Algeria, Egypt, Iraq and Poland, as well as the US. Among the chapters is an account of the first fifteen years of the Brandeis Institute for International Judges, written by International Justice in the News editor Leigh Swigart. Read an excerpt from Nadeau’s book here and order the volume at this link.

wavesA radio piece from The World explores Japan’s resumption of commercial whaling after its withdrawal in late 2018 from the International Whaling Commission, an organization charged with the conservation of whales and the management of whaling. The reportage notes that the appetite for whale meat has declined significantly among the Japanese in recent decades and there are currently hundreds of tons of surplus whale meat under deep freeze. So, why is Japan so committed to the reboot of whaling, and how might this action paradoxically result in fewer killed whales? Find out by listening to the full reportage (5 minutes). 

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

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