Human rights news from the IBA - April/May 2017

Call for nominations: IBA Human Rights Award 2017

The IBA Award for an outstanding contribution by a legal practitioner to human rights recognises personal endeavour in the field of law that made a remarkable impact to the promotion, protection and advancement of human rights, administration of justice and the rule of law. This award is presented to a legal practitioner who is deemed to have made an exceptional contribution to human rights, either in their own jurisdiction or internationally, particularly with respect to the right to live in a fair and just society under the rule of law.

The 2016 honouree was Galina Arapova, a human rights lawyer from Russia who works in the field of media rights protection, seeking to promote the right to freedom of expression in Russia. Her clients, in over 400 court cases, have included small local and regional news outlets, TV companies, national and international newspapers and online media.

Other previous winners include: Intigam Aliyev (2015), a lawyer from Azerbaijan, for his dedicated fight to protect human rights and uphold the rule of law in Azerbaijan. His achievements include bringing over 100 petitions of alleged human rights abuses before the European Court of Human Rights.

As well as: Bangladeshi human rights lawyer and defender Adilur Rahman Khan, for his campaigning against human rights abuses such as torture, extrajudicial killings and enforced disappearances (2014); and Somalian Constitutional Law Professor Abukar Hassan Ahmed, for his dedication to the fight for human rights and the rule of law in Somalia and defending people arrested for their political beliefs (2013).

For more information on how to nominate someone for the IBA Human Rights Award, visit tinyurl.com/IBAHumanRightsAward2017.

Nominations for this year’s Award will close on Friday 9 June.

IBAHRI Annual Review 2016 highlights another year of achievements

The latest IBAHRI Annual Review provides a comprehensive summary of the Institute’s activities in promoting human rights and an independent legal profession around the world during the course of 2016. These include capacity-building projects to prevent torture, fact-finding missions and trial observations.

2016 highlights:

Sexual orientation and human rights

Launch of Sexual Orientation, Gender Identity and Expression, and Sex Characteristics at the Universal Periodic Review. In partnership with ILGA and ARC International, the report analyses the impact of the Universal Periodic Review on rights relating to sexual orientation, gender identity and expression, and sex characteristics.

Mexico

In partnership with Mexican federal justice institutions, the Office of the United Nations High Commissioner for Human Rights and national and international experts, the IBAHRI organised multiple training sessions on torture prevention.

Tunisia

Capacity-building programme on international criminal law and international humanitarian law. The three-year training programmes on torture prevention, rebuilding public confidence in the judiciary and international criminal law came to a close this year.

Azerbaijan

Promoting human rights litigation. A new generation of Azerbaijani lawyers were trained in human rights law, creating a growing network.

Tajikistan

The IBAHRI and a specialist legal consultant have worked closely with the Union of Lawyers to increase its national effectiveness and engagement with the international legal community.

Myanmar

The IBAHRI has sought to strengthen the Myanmar legal profession through the establishment of the country’s first independent national bar association.

Abolition of the death penalty

Forced to Kill: The Mandatory Death Penalty and its Incompatibility with Fair Trial Standards. The IBAHRI report on the mandatory imposition of the death penalty under international law argues that any procedure that obliges a court to impose the death penalty is inherently flawed.

Download the Annual Review 2016 from the IBA website. To order a printed copy, contact hri@int-bar.org.

Torture prevention in Mexico: building the capacity of the legal profession

Impunity, enforced disappearances, and torture continue to threaten the rule of law in Mexico. Working with Mexico’s legal profession, the IBAHRI has sought to build the capacity of judges, lawyers, public defenders and prosecutors to achieve a better understanding of their role and responsibilities in the prevention and prosecution of torture.

The IBAHRI has produced a short video explaining the challenges facing Mexico and how the IBAHRI has been working with the country’s legal profession to break the cycle of impunity and support Mexicans to ensure justice for torture victims.

To watch the video, visit tinyurl.com/IBAHRI-Mexico-torture.

Trump's new travel ban further tests image and rule of law

Emad Mekay, IBA Middle East Correspondent, Cairo

When United States President Donald Trump signed his second travel ban executive order, people in the Middle East, the majority of whom are Muslim, saw the move as the US not living up to its own image and reputation as a bastion of law and democracy. In the US, lawyers and activists saw it as another timely test of the country's much-cherished system of checks and balances.

The new order, signed early in March, blocks travel to the US by citizens from six Muslim-majority countries – Iran, Libya, Somalia, Sudan, Syria and Yemen – on national security grounds. Iraq, which was on the original list, signed in January, was removed. The new order maintains a 120-day suspension on the processing of refugees into the country.

The second order was met by similar scepticism to that which followed the first. It didn't help that it was accompanied by reports of what many rights and immigration lawyers said was ‘unconstitutional and systematic ideological’ questioning of American-Muslim citizens and foreign travellers about their religious values and political views.

It was reported extensively in the Middle East that Muhammad Ali Jr, son of the legendary US boxer, was detained while travelling with his mother, and asked at least twice about his religion at US airports.

Such incidents may be welcome for white supremacists and the small minority of anti-Muslim fringe groups that appear to have become aligned with the Trump administration. But they do not pass a legal litmus test.

From a legal prospective, there is a near consensus that the latest scaled-back version of the travel ban shares the same flaws as the original Muslim ban that created so much uproar around the world.

‘The genesis of the travel ban was Mr Trump’s oft-expressed intention to bar Muslims from the United States,’ said Philip Berkowitz, New York-based Co-Chair of the IBA’s Discrimination and Equality Law Committee and Co-Chair of Littler’s international practice. ‘While the Administration has tried to soften the current version’s language in some respects, nevertheless the President's prior statements, and the courts that have considered the travel ban thus far are declining to pretend that these statements were never made, and therefore concluded that it suffers from precisely the same flaws as the initial one.’

There are many, including in the US, who believe that what the US President is doing is both illegal and unconstitutional. Worse, the ban actually opens the door for discrimination based on faith and religion and could easily be rehashed to fit people of other faiths.

‘To the extent that the travel ban was implemented in order to discriminate on the basis of faith or religion, it is unlawful and unconstitutional,’ Berkowitz says. ‘While the President's right to oversee the immigration laws is broad, it is not unfettered. He cannot act in an arbitrary manner. Nor can he act in a manner that is contrary to the Constitution or the laws of the US.’

This is now a significant matter for the US image in the Middle East and across the globe. The US helped pioneer international bodies and human rights charters that forbid religious discrimination in any form. But, the Trump administration risks being viewed as violating America’s own laws prohibiting religious discrimination.

Omar Jadwat, Director of the American Civil Liberties Union's Immigrants’ Rights Project, says it was clear that the White House was searching for reasons to permit religious discrimination. ‘The changes the Trump administration has made, and everything we've learned since the original ban rolled out, completely undermine the bogus national security justifications the President has tried to hide behind and only strengthen the case against his unconstitutional executive orders,’ he says. ‘The only way to actually fix the Muslim ban is not to have a Muslim ban. Instead, President Trump has recommitted himself to religious discrimination, and he can expect continued disapproval from both the courts and the people.’

Berkowitz says the US is a country of laws, and that the executive orders are a case where the people and the courts can indeed monitor the President's power using a plethora of existing anti-discrimination US laws. The Establishment Clause of the First Amendment, for example, prohibits the federal government from officially preferring one religion over another while the Due Process Clause of the Fifth Amendment bars the federal government from depriving individuals of their liberty interests without due process of law, Berkowitz notes.

Furthermore, the Immigration and Nationality Act permits any alien who is physically present in the US to apply for asylum regardless of their nationality. The US has ratified the United Nations Convention Against Torture that prevents the government from involuntarily returning any person to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture.

‘Imposing a religious test on immigration is contrary to US and international law,’ says Berkowitz. ‘And arbitrarily excluding individuals from certain countries where there is no evidence that doing so will reduce a terrorist threat is an arbitrary act that is contrary to law as well.

‘If the President acts in a way that is an abuse of discretion and in violation of the Constitution and the laws of the US, then the courts must step in and take action. This has been part of our tradition and it is ingrained in our Constitution. We are seeing a proper response to the president's actions, and I think that everyone can be confident that the rule of law is alive and well in the US.’

Situation in Myanmar raised at Human Rights Council following murder of Aung San Suu Kyi’s legal advisor

On 29 January 2017, the Myanmar legal profession was shocked by the assassination of U Ko Ni. A well-respected Muslim lawyer, Ko Ni was known for supporting constitutional reform and promoting religious harmony in Myanmar. The assassination took place in a context of increasing religious tensions, as the persecution of Rohingya and other minorities has worsened in Rakhine State.

The plight of Myanmar’s religious minorities, in particular that of the Muslim Rohingya, was recently addressed at the United Nation’s 34th Session of the Human Rights Council. During an Interactive Dialogue with the UN Special Rapporteur on the situation of human rights in Myanmar, Special Rapporteur Yanghee Lee called for a ‘prompt, thorough, independent and impartial’ investigation into human rights abuses and the maltreatment of human rights defenders in Myanmar.

Together with the International Commission of Jurists and Lawyers’ Rights Watch Canada, the IBAHRI issued a joint statement that supported the Special Rapporteur’s recommendation for an international Commission of Inquiry. The joint statement agreed that an international commission was justified because prior investigations were neither impartial or independent. It also stated that Myanmar’s authorities ‘appear to have been unwilling or unable’ to investigate and prosecute those responsible for extrajudicial killings, destruction of property, torture and arbitrary arrests.

The IBAHRI contributed two other statements during the course of the 34th Session of the Human Rights Council. The first, delivered by IBAHRI Director Philip Tahmindjis, outlined the IBAHRI’s total opposition to the death penalty. The other addressed the necessary steps to better protect persons with albinism in Malawi and Mozambique.

All statements can be found on the IBA website at www.ibanet.org/IBAHRI.

Anglophone barrister faces military tribunal in Cameroon

The IBAHRI repeats its call to the Government of the Republic of Cameroon to conduct the trial of Barrister Nkongho Felix Agbor-Balla in a civilian court, without interference, and in adherence with international norms of legal and transparent due process. The trial, postponed on 1 and 13 February 2017, took place before a military tribunal on 23 March but was again adjourned until 7 April.

Barrister Agbor-Balla was arrested on 17 January 2017 and held incommunicado as a result of his involvement in protests and strikes by anglophone lawyers and teachers in West Cameroon against what they perceive as the marginalisation of the anglophone minority. The barrister was charged with a number of offences, including incitement to secession, civil war and revolution, and ‘Hostilities against the Fatherland’ – some of which carry the death penalty on conviction.

On the same day, the Cameroon Anglophone Civil Society Consortium over which Barrister Agbor-Balla presided was outlawed.

South African High Court rules against ICC withdrawal

On 22 February 2017, the North Gauteng High Court in South Africa ruled that the government’s intention to withdraw from the International Criminal Court (ICC) was unconstitutional. The High Court ordered South Africa’s government to revoke their withdrawal because the National Assembly had not been consulted on the matter.

South Africa’s government notified the United Nations of its intention to withdraw from the ICC in October 2016. The decision followed a disagreement between the government and the ICC in 2015 when the government failed to arrest President of Sudan Omar al-Bashir, when the Southern Africa Litigation Centre (SALC) sought the implementation of the ICC arrest warrant against him.

On 7 March 2017, the government duly complied with the High Court’s ruling and revoked their withdrawal from the ICC.

The IBAHRI has welcomed the ruling as a sign that South Africa’s judiciary continues to act as an effective check against the power of the executive.

American presidency: Trump draft budget proposes huge funding cut for civil legal aid

Michael D Goldhaber, IBA US correspondent, new york

President Donald Trump’s draft budget reportedly reduces federal funding for civil legal aid from $375m to $0. The idea of eliminating the Legal Services Corporation (LSC), whose funding is already low by global and historical standards, had drawn swift condemnation from legal aid leaders of both parties, as well as from leading non-partisan lawyers’ groups.

‘I think you’d be talking about a devastating blow to the orderly functioning of our justice system,’ says LSC Chair John Levi, who was appointed by President Barack Obama.

The Conference of Chief Justices sent a letter to the White House warning of ‘tragic consequences’ if LSC is eliminated – or even reduced. ‘What they’re seeing in their courts across the country is people trying to go it alone,’ says Levi. ‘Our system was not set up to be a go-it-alone system.’

Frank Strickland served as LSC Chair under President George W Bush, and voted for Trump. ‘If you want equal justice for all, then you should believe in the cause of civil legal services,’ he says. ‘This is the storefront lawyer for the poor.’

The LSC began life in 1974 with a budget, in today’s dollars, of $880m, serving fewer than 30 million poor Americans. In 1982, the LSC suffered a 25 per cent cut. In 1996, its budget plunged 30 per cent, courtesy of Newt Gingrich’s Contract with America. Now the budget is $375m for more than 60 million poor Americans.

In international terms, only 12 of 113 nations rank below the US on the accessibility and affordability of civil justice in the World Justice Project’s Rule of Law Index. America currently ranks between Afghanistan and Zimbabwe. Based on the reported budget, President Trump seems intent on dropping the US to last place, alongside Cambodia.

The slow withdrawal of federal funding has long put pressure on state and local budgets and private donors to fill the gap. The bar responded to the Reagan-era cuts by earmarking the interest on lawyer trust accounts (never anticipating how much that pot would shrink in a climate of prolonged low interest rates). Non-federal sources now fund 60 per cent of US civil legal aid. The value of law firm pro bono rose sharply over two generations to partly meet the need.

Strickland believes that Members of Congress who think states will plug the hole are fooling themselves, and extends an open invitation to them. ‘Come with me and let’s see if we can get the same amount of money from the Georgia Assembly that is going to be deleted as a result of the zeroing out of the LSC budget,’ he says. ‘Join me and let’s go down to the General Assembly. It’s in session right now as we speak at the State Capitol. Let’s go down there and see if we can get that done. My bet is we can’t.’

A 1996 law already bars LSC grantees from helping most illegal immigrants or taking class actions of any kind. Their docket is therefore dominated by individual housing or family law cases. About a sixth flow from domestic abuse.

The White House is reportedly adapting a Heritage Foundation plan that would also scrap the $400m Office on Violence Against Women. Levi notes that abusive partners can often afford lawyers because they control the family finances. But if both offices are axed, he worries, poor women seeking court protection will be ‘pretty much on their own… You just think about an individual who’s been abused having to show up in court, and there you are facing your abuser.’

The new attack on LSC arrives soon after Harvard sociologist Matthew Desmond revealed in his powerfully-original book, Evicted,‘how deeply housing is implicated in the creation of poverty’. Some 2.7 million Americans per year face eviction, and Desmond describes housing court as where the only people in suits work for landlords. In many cities, he estimates 90 per cent of tenants are unrepresented, while 90 per cent of landlords are represented. Often preventable, eviction creates a cycle of lost jobs, disrupted schooling and homelessness.

As it happens, New York City announced the nation’s first plan to guarantee low-income tenants the right to counsel five days before news leaked of the White House plan to defund legal services. New York aims to spend $155m each year on tenant legal services by 2022. A cost-benefit analysis last year by the financial advisory firm Stout Risius Ross calculated that the policy will more than pay for itself by reducing the cost of homelessness.

There are approximately 900 offices funded by the LSC  – and disproportionately in under-lawyered rural areas. Most LSC clients are white. About 45,000 each year are veterans or their families, often contesting the wrongful denial of military benefits. ‘In rural America, in small-town America, we are often the only game in town,’ says Levi.

Strickland suggests rural grantees would be hit hardest, because they’re more dependent on federal funds, and less likely to find private funds. Others may differ, Strickland says respectfully, but in his view, cutting legal services is inconsistent with the President’s pledges to honour the safety net, and to champion those who have been left behind by the global economy.

Civil legal aid has an illustrious Republican pedigree, and not only because the LSC was incorporated by Richard Nixon. Levi’s father Edward, who later served as Attorney General under Gerald Ford, founded the nation’s first law school legal services clinic at the University of Chicago in 1957. ‘My dad always believed that every generation has a responsibility, to itself and to those that come after it, to leave the country in as good if not better shape than they found it,’ says Levi. ‘I think he would be very troubled.’

Perhaps the most eloquent paean to legal services was delivered by the late Justice Antonin Scalia, who is widely revered in conservative circles. As Scalia would walk up the Supreme Court’s front steps, he’d sometimes ponder the engraved words on the pediment, ‘EQUAL JUSTICE UNDER LAW’.

‘I’ve always thought that’s somewhat redundant,’ he remarked on the LSC’s 40th anniversary in 2014. ‘Can there be justice if it is not equal? Can there be a just society when some do not have justice?’