The International Nuremburg Principles Academy announced open registration forthe launch and panel discussion of the 3rd volume of the Nuremberg Academy Series, The Tokyo Tribunal: Perspectives on Law, History, and Memory edited by Viviane E. Dittrich, Kerstin von Lingen, Philipp Osten and Jolana Makraiová.
The launch event is on October 30, 2020 at 10:00AM-11:30AM CET. The panel discussion will focus on contemporary perspectives of law and history, and the ongoing significance of the Nuremberg and Tokyo Tribunals. Click here for detailson how to access the book and for the registration link!
Pinar Gültekin a 27-year-old University student was brutally beaten and burned to a crisp by her ex-boyfriend on 21stJuly 2020 in Turkey adding to the country’s long list of femicides. The victim was reported missing for six days before being found dumped in a bin strangled to death by her former partner for disagreeing to reconcile with him.
While the news of Gültekin’s death ignited demonstrations all across the country and women and men alike took to the street’s, the death of Pinar and similar atrocities against women in Turkey inevitably raises a few questions. What should happen when a 27-year-old girl is strangled to death and burned to a crisp by her ex-partner? What are the repercussions of a mother being stabbed to death by her husband in a café in front of her child? What happens when a girl is stabbed and burned to her death because she resists rape? What happens when the mysterious death of an eleven-year-old girl is deemed “suicide” by the judiciary. Maybe the answer to the above-mentioned questions lies not in what happens but how it happened or who/what perpetrated the incidents. While the atrocities may be perceived by some as interpersonal their prevalence only against a particular section of the community indicates towards an institutionalisation of violence abetted by a chauvinist patriarchal society.
Violence against women existed long before the expression “femicide” was devised in 1976 by Diana E. Russell at the first “International Tribunal on Crimes Against Women in Brussels, Belgium”. While the term is defined by the “United Nations Office in Drugs and Crime”as the gender-based homicide of women it not just refers to the killing of women but condones an entire system of Judicial administration that fails to safeguard the women and prosecute the perpetrators. The concept is similar to “rape culture” except applying only in cases of murder concerning a women’s sexual orientation, indigenous identity, dowry-related issues. However, contrary to majority perception the acts under no circumstances are unrelated and spasmodic but is abetted by a chauvinistic society exhibiting unequal power structures and conventionally defined gender roles where women often find themselves pushed to the margins. Encouraged by Right-Wing Populist Parties the above-mentioned manifestations of violence against women in Turkey has increased exponentially over the decades.
The misogynistic heteronormative dogmas embedded in the social fabric of Turkey gets exemplified by the Global Study on Homicide, 2018 conducted by the “United Nations Office on Drugs and Crime” which reportedly delineated the death of 89,000 women in Turkey in 2017. Turkey has been ranked114 of 167 countries in the “Women, Peace and Security Index, 2019” and 130thof 149 countriesin “WEF’s the Global Gender Gap Index, 2020”. The data is at face value enough to glean the status and treatment of women in the country.
It is our great pleasure to introduce our new IntLawGrrls contributor Indrasish Majumder. Indrasish is pursuing his B. A L.L. B (Hons.) from National Law University Odisha. He has a special interest in Human Rights, Humanitarian Law, Public International Law and Criminal Law. Accordingly, he has presented and published articles and papers in National/International seminars namely: Indian Law Institute (New Delhi) ‘International Conference on Human Rights and Person with Disabilities’, Amity University ‘International Conference on Human Rights of women, children and sex workers’, MNLU‘National Conference on Gender Justice and Media’ edited books and blogs e.g. Opinio Juris, Jurist Commentary (University of Pittsburgh), International Policy Digest. In pursuance to his interest in policy research, Criminal Law and Human Rights he has interned at the NLUD Centre for Criminology and Victimology and volunteered at the Amnesty International Troll Decoders Project.
Indrasish exhibits a keen interest in working for the underprivileged and has been involved in various volunteering programs in his college and outside. The Robin Hood Army ( involved in accumulating leftover food from restraint across Calcutta and distributing them among the underprivileged), Increasing Diversity by Increasing Access (IDIA) (A pan India initiative by students from National Law Universities to help the underprivileged overcome their monetary constraints and pursue a legal education), Parichay (working in tribunals on behalf of the people left out from the final list of National Register for Citizens in India), IAYP (International Award for Young People), Child Rights and You and Help Age India, to name a few.
Internment is a frequent occurrence in armed conflicts. Particularly in the aftermath of the litigation surrounding the Guantanamo Bay detention facility and the US’s justification for the displacement of human rights norms, questions about its authority to detain individuals in non-international armed conflicts (“NIACs”) received increased attention. This post will take a closer look at these questions – in particular, the legal basis for detention in NIACs under international humanitarian law (“IHL”) and human rights law (“IHRL”).
In international armed conflicts (“IACs”), the detention regime is sufficiently grounded in the Geneva Conventions. Articles 21 and 4A of the third Geneva Convention confer on states a right to detain prisoners of war, only so long as the circumstances that made internment necessary continue.
In comparison, in NIACs, the IHL basis itself is debatable. For one, the Geneva Conventions do not authorise detention or even prescribe procedures to challenge detention in NIACs. At most, Common Article 3 regulates the treatment of persons deprived of their liberty and Articles 5 and 6 of Additional Protocol II contemplate that internment occurs in an NIAC. This is not to say that contrary views don’t exist. Goodman constructed a case for why IAC rules on detention can be extended by analogy. Goodman reasoned that IHL itself permits States to a fortiori undertake those practices in an NIAC that they can implement in an IAC. However, this argument is not completely reasonable since some NIAC rules are arguably more restrictive, in that they divest ‘fighters’ of privileges that they would otherwise enjoy in IACs – whether it is combatant immunity or rules of targeting.
This question came up before the British High Court in the Serdar Mohammed case. The claimant alleged that his capture and detention by Her Majesty’s armed forces in Afghanistan, from 7 April 2010 till 25 July 2010, was unlawful because it exceeded the authorized period of detention as per the arrangement between Her Majesty’s armed forces and the State of Afghanistan. This amounted to a breach of his right to liberty under Article 5 of the European Convention of Human Rights (“ECHR”). In response, the Secretary of State argued that Article 5 of the ECHR was not the correct legal basis here, since IHL rules on detention in NIACs displace or modify the ECHR. To establish that IHL permits detention in NIACs, the Secretary of State theorized that the implicit power to kill those participating in hostilities in an NIACSs would have to logically encompass the power to detain. However, the Court rejected this argument noting that it was not convinced that the regulation of restrictions of right to life under IHL could be read as an ‘authorization’ to kill. Even if it is, the power to kill does not go further than justifying the capture of a person who may lawfully be killed.
The Secretary of State also suggested that the norms of IACs under the Geneva Conventions and Additional Protocols could be transposed to NIACs by analogy. However, the Court was not sympathetic to this proposition either. Mainly because the drafting history of the Geneva Conventions reflected a clear intent not to authorise detention in Common Article 3. The drafters feared that such a power would enable insurgents to claim that they would also be entitled to detain captured members of the government’s army by operation of the principle of equality of belligerency.
Upon appeal, the British Supreme Court employed alternative reasoning to authorize detention. Instead of IHL, the Court grounded its ruling in IHRL. The Court essentially followed the Hassancase, where the applicant’s brother was detained in Iraq by British forces for over 6 months in 2003. The applicant’s primary contention was that the Geneva Conventions, in so far as they applied to the NIAC in Iraq at the time, did not permit the British forces to act in violation of Article 5(1) of the ECHR. There the European Court of Human Rights (“ECtHR”) found that Article 5(1) of the ECHR, which permits detention on six permitted grounds, can also invoked to authorize detention during international armed conflicts. The only caveat the Court added was for such detention to not be unduly broad, opaque or discretionary. The Court in Serdar Mohammad went one step further, to extend Article 5(1) to NIACs.
Fortunately, in so doing, the British Supreme Court did not displace IHL completely (an erstwhile view that met with much censure). It chose instead to marry IHRL with IHL. Nonetheless, the decision must still be viewed with caution. For one, it offers little justification for why State parties should not invoke the ECHR’s derogation clause under Article 15.
Moreover, the Court in Serdar Mohammed did not engage with the past jurisprudence of the ECtHR on detention in NIACs where the only condition on which detention was allowed was if there was a clearly worded Security Council resolution to support such detention. Even if the requirement of a resolution is seen as dispensable, it is callous to ignore the requirement of explicitness – either in the IHRL/IHL treaty or in State support (in case the position attains customary status).
With treaty language such as that in the ICCPR (illustratively, Article 9 only proscribes arbitrary arrest or detention), it is easier to cull out an IHRL basis for detention. However, this task is far more onerous when it comes to the ECHR – which does not contain harmonizing language per se. Till such time as explicit authorization is missing, States should strive to comply with the rule of derogation. To ensure effective compliance, international courts should also work towards setting a baseline below which rights cannot be derogated from, thereby protecting the integrity of the IHRL/IHL treaty and identifying the minimum rights that States are bound to afford to those within their jurisdiction.
It is our great pleasure to introduce our new IntLawGrrls contributor Raghavi Viswanath. Raghavi is a PhD researcher at the European University Institute in Florence. Her doctoral project investigates ways to improve State accountability for violations of cultural rights in Asia, with specific focus on India, China, and Myanmar. Raghavi obtained her primary degree in law from the National Law Institute University, Bhopal (India). During this course, Raghavi served as the Convener of the Centre for Research in International Law and the Editor-in-chief of the Law Review. She was also associated with Columbia University’s Global Freedom of Expression project as a legal researcher. Raghavi read for the Bachelor of Civil Law at the University of Oxford, where she studied international criminal law, law of armed conflict, and criminal justice. At Oxford, Raghavi worked on criminal law projects housed at the Oxford Pro Bono Publico and the Bonavero Institute for Human Rights.
Raghavi then secured the Oxford-Meron IRMCT Internship Fund to intern at the United Nations International Residual Mechanism for Criminal Tribunals in the Hague. Thereafter, she pursued an advanced masters in international criminal law at the Leiden Law School. Raghavi wrote her thesis under the supervision of Prof. William Schabas and graduated summa cum laude. Alongside her PhD at the European University Institute, Raghavi works as a research associate at the Public International Law and Policy Group where she studies trends in domestic prosecutions of international crimes. More recently, she contributed to PILPG’s amicus curiae intervention in the Bosco Ntaganda case at the International Criminal Court. Raghavi’s primary interests lie in international criminal law, human rights law, and third world approaches to international law.
Guatemalan justice sector actors known for being independent and impartial are facing a new slew of threats to their careers and professional integrity.
Increasing efforts to rid the justice sector of the dwindling number of rule of law defenders that remain is part of what appears to be a larger, systematic plan to return Guatemala to a state of impunity. These attempts are spurring on the rule of law backsliding which began with the attack against the International Commission against Impunity in Guatemala (CICIG) and have created an exigent situation. Corruption and impunity will prevail again if something is not done soon to protect Guatemala’s independent and impartial justice sector actors.
The full policy brief outlining the ongoing attacks against the independence of the justice sector in Guatemala is available here.
The policy brief was co-authored by Jaime Chávez Alor, Latin America Policy Director at the Cyrus R. Vance Center for International Justice of the New York City Bar Association, and Lauren McIntosh, Legal Advisor at the International Legal Assistance Consortium (ILAC).
This installment of Write On!, our periodic compilation of calls for papers, includes a call for submissions to the upcoming Human Rights Essay Award Competition, as follows:
► The Academy on Human Rights and Humanitarian Law at American University Washington College of Law is currently accepting submissions for the 2021 Human Rights Essay Award Competition. The topic of the 2021 competition is as follows: Human Rights and States of Emergency: Unexpected Crisis and New Challenges. Participants have the flexibility to choose any subject that directly relates to this topic, including international human rights law topics related to international humanitarian law and international criminal law. The deadline to enter your submission to the Human Rights Essay Award competition is February 1, 2021. Please note that ONLY participants with a law degree are eligible to enter this competition.
The Human Rights Essay Award will be awarded to two winners—one for a submission in English and one for a submission in Spanish—with a full scholarship (including lodging and transportation to and from Washington, D.C.) to complete the Certificate of Attendance or Diploma in the 2021 Program of Advanced Studies on Human Rights and Humanitarian Law which will take place from May 31 to June 18, 2021.
This installment of Write On!, our periodic compilation of calls for papers, includes a call to submit papers to the Transnational Legal Theory Journal as follows:
► The Transnational Legal Theory Journal is publishing a special issue of articles on transnational legal feminism. They invite you to submit an abstract (due 15 December 2020) for consideration for the journal. Selected authors will be invited to submit papers (subject to peer review) that will be published in the Transnational Legal Theory Journal and presented in a virtual conference to be held on March 25th and 26th, 2021 in collaboration with the London South Bank University and the Cornell Law School.
Please submit an abstract of no more than 500 words, a short bio (max. 200 words), and your institutional affiliation to email@example.com by 15 December 2020. Draft papers will be due to at the end of February 2021 with the final papers having to be submitted by the end of April 2021, after the Symposium.
► The virtual Transnational Legal Feminism Symposium, organized by London South Bank University and Cornell Law School’s India Law Center, will be held on March 25th and 26th, 2021, with Professor Chandra Talpade Mohanty (Syracuse University) as the keynote speaker.
The Symposium aims at bringing together scholars and activists working on the intersection of international law, particularly those working on Third World Approaches to International Law (TWAIL), transnational law, and feminist legal theories to exchange notes from both research and practice.In this context, the Symposium will particularly focus on the following themes:
Power struggles between the Global South and Global North regarding gender equality issue and international law, including critiques of dominant perspectives
Non-hegemonic feminist theories and activism
Contextualised approaches to cross-border feminist praxis that challenge notions of universality
The effects of increased transnational neoliberal policies on gender-related and feminist issues
The potential (risks) of transnational feminist solidarity movement
How does transnational legal feminism intersect with the body of literature called “transnational law”?
What could a new transnational legal feminist approach entail?
Contributions are invited from scholars and activists in the field of law, gender studies, feminist theory, international relations and other disciplines that consider the kinds of questions listed above.
How can the ICC exercise jurisdiction over the matter?
If the International Criminal Court decides to launch an investigation against Beijing over Uighur genocide and prosecute the Chinese Communist Party, it would be the first attempt to hold Beijing accountable for its crimes against Uighur Muslims before the International law community. However, it will not be easy for ICC to investigate the Uighur genocide directly as China does not accept the jurisdiction of International Criminal Court.
Article 12 titled ‘Preconditions to the exercise of jurisdiction’ of the Rome Statute is relevant in this context. As per Article 12(2) (a) of the Rome Statute, the court’s exercise of jurisdiction as contained in Article 13 is limited to those states that are party to the statute or have accepted the state’s jurisdiction in accordance with paragraph 3 of Article 12. As China is not a party to the Rome Statute, this provision safeguards it against being brought before the International Criminal Court. Apart from that, Article 13(2) provides that the ICC can exercise jurisdiction over the crimes if UNSC refers the same to Prosecutor under Chapter VII of the United Nations Charter. However, this seems unlikely as China is a permanent UNSC member that possesses veto power and therefore won’t allow a prosecution against itself. However, this does not mean that the ICC cannot exercise jurisdiction over the alleged crimes at all.
In order to investigate the Uighur genocide, the ICC will need to take an indirect approach and find a way to establish jurisdiction over the matter. In furtherance of the same, the International law community has proposed exploring the possibility of using the precedent set by the ICC in the Myanmar case over Rohingya genocide. In 2018, a request had been submitted by prosecutor Fatou Bensouda to the ICC to exercise its jurisdiction over the crimes committed against the Rohingya Muslims during the course of their deportation from Myanmar to Bangladesh. It was put forward by the prosecutor that even though the crimes against Rohingya Muslims occurred in Myanmar’s territory, a state that does not accept the jurisdiction of ICC, the fact that crimes were committed against Rohingya Muslims when they were forced to move across border into Bangladesh, a territory that accepts the jurisdiction of ICC is enough to justify ICC’s jurisdiction over the matter. Her arguments were accepted by the Pre-Trial Chamber I of the court and it was decided the case fell within the jurisdiction of the court. In other words, crimes with regards to the ethnic Muslim minority community were partly committed in a nation state that is bound by the Rome State and this allowed the ICC to exercise jurisdiction over the matter.
Subsequently, in 2019, a request was submitted by the OTP to the Pre-Trial Chamber III with regards to authorizing an investigation into the Rohingya genocide. This request was accepted by the court as it was based on the grounds that there was a reasonable evidence to believe that alleged crimes took place against the Rohingya Muslim community .The chamber clarified that “the Court may exercise jurisdiction over crimes when part of the criminal conduct takes place on the territory of a State Party”.
The complaint against Beijing over Uighur Genocide has been filed on similar grounds. It has been put forward that since the deportation of Uighur Muslims to Xinjiang took place from Tajikistan and Cambodia, two nations that accept the jurisdiction of the ICC, an investigation into Uighur genocide is legally valid. According to Rodney Dixon, who is heading the legal team representing the Uighur Activist groups- “There is now a clear legal pathway to justice for the millions of Uighurs who are allegedly being persecuted on mass by the Chinese authorities”. Indeed, the ICC has been presented with the unique opportunity of putting China on trial by utilizing the precedent set by the Myanmar case.
Though the Office of prosecutor has accepted the petition seeking an end to China’s impunity over Uighur genocide, it remains to be seen whether it will green-light an investigation into the matter. As of now, prosecutor Fatou Bensouda is in the process of collecting and analysing evidence to launch a formal investigation into the alleged crimes.
One thing has become clear- if the International Criminal Court decides to prosecute People’s Republic of China for its alleged crimes against the Uighur Muslims; it will prove to be a turning point for the Uighur justice movement. In the past, China has consistently showed its aversion to international adjudication and refused to abide by international law. Owing to its economic, political and diplomatic prowess, it has been able to garner the support of several countries across the world. As a result, these countries have refrained from raising their voice against the plight of Uighur Muslims. However, in the current political scenario, the international community has come forward and criticised the state sponsored persecution of Uighur Muslims.
In the past few months, there has been an increased focus on China’s treatment of Uighur Muslims in the north-western city of Xinjiang. Beijing has employed an elaborate policy that seeks to prevent Uighur Muslims from practicing their religion as well as their culture. Under the pretence of re-educating the community, the Chinese authoritarian regime has detained Uighur Muslims in internment camps where they are being subjected to physical and mental torture on a regular basis. During the course of their detention, Uighur Muslims are being forced to commit acts that are in violation of their religious beliefs. Moreover, Beijing has been using its influence and economic power to bring back Uighur Muslims who have been living abroad or fled from Xinjiang so as to ensure that they are unable to practice their religion as well as raise their voice against the mass detention of their community. Once they are forcefully brought back, they are subjected to widespread torture that amounts to human rights violations. This systematic oppression of the Uighur Muslim community has been termed by many as ‘cultural genocide’.
For a long time, the deplorable situation of Uighur Muslims was ignored by the international community. However, due to changing political considerations and rising anti-Beijing sentiment due to the Covid-19 pandemic, several countries including the US have called out Beijing over its treatment of the Uighur Muslim Community. Moreover, in an effort to seek justice for the Uighur Muslim Community, two Uighur activists groups known as the East Turkistan Government in Exile and East Turkistan National Awakening Movement have filed a complaint against People’s Republic of China before the International Criminal Court.
The complaint has been filed against top leaders of the Chinese Communist Party officials on the grounds that China’s detention of Uighur Muslims amounts to genocide and crimes against humanity. It is worth noting here that the Uighur exiles are being represented by a group of leading international lawyers based in London. According to Anne Coulon, one of the lawyers working on the case, the team is “in possession of overwhelming and very serious evidence that can support charges of crimes against humanity and genocide against Chinese Officials”. She further noted that “The seriousness of the alleged acts is such that the prosecutor should open an investigation”.
The purpose of this article is twofold: firstly, it shall discuss whether there are sufficient grounds to hold China accountable for genocide as well as crimes against humanity under public international law, and secondly, it shall attempt to establish whether China can be brought before the ICC.
China’s Obligations under International law
Even though religious freedom is guaranteed under Article 36 of the Chinese constitution, it is impossible for Uighur Muslims to seek constitutional relief under the authoritarian regime of the Chinese Communist Party. In such a scenario, international law seems to be the only legal recourse available to the Uighur Muslim Community.
Under the Rome Statute, China can be held liable for its treatment of Uighur Muslims as per Article 6 and Article 7. Article 6 of the Rome Statute defines genocide by listing several acts such as killing, sterilization etc that are “committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group”. Similarly, China can be held liable for Crimes Against Humanity under several provisions of Article 7 of the Rome Statute. However, China is not state party to the Rome Statute and that prevents ICC from exercising jurisdiction over the crimes. The next part will analyse whether there is a way through which the international criminal court can exercise jurisdiction over the crimes or not.