Human Rights News - April/May 2013

Nominations open for the IBA Human Rights Award 2013

Nominations are now open for the annual IBA Human Rights Award. Each year the IBA presents an award to an outstanding lawyer in the world of human rights law.

We are seeking high-calibre nominations for 2013 and the deadline for applications is 1 May 2013. The award will be presented to the winner during the Rule of Law Symposium at the IBA Annual Conference, in Boston, October 2013.

Last year’s winner was jailed Iranian lawyer, Abdolfattah Soltani. Soltani is co-founder of the Defenders of Human Rights Center (DHRC) with Nobel laureate Shirin Ebadi. He was presented with the title for his outstanding contribution as a legal practitioner to human rights. His daughter, Maede Soltani, accepted the award on her father’s behalf at the IBA Annual Conference in Dublin.

For full details of how to nominate a candidate and to read information on former Award winners, see tinyurl.com/IBAHRAward2013.

IBAHRI delegation denied visas for Sri Lanka mission

The International Bar Association’s Human Rights Institute (IBAHRI) has expressed serious concern at the Sri Lankan government’s decision to deny entry to Sri Lanka to senior international figures, including a former Chief Justice of the Supreme Court of India, Justice J S Verma.

Mark Ellis, Executive Director of the International Bar Association, stated: ‘It is disappointing that the Sri Lankan authorities have missed the opportunity to cooperate on a visit by respected foreign members of the legal system. It will suggest to the international community that the Sri Lankan authorities are fearful of having independent eyes on the issues of interest to the legal profession.’

A visa had been issued to one member of the delegation, facilitated through the relevant national diplomatic channels on 18 January 2013, but was revoked on 29 January. Approval to enter the country was suspended on 29 and 30 January in the cases of the other delegates, who had applied and been approved for entry to Sri Lanka through the online application process on 21 January 2013.

The visit was planned to take place 1–10 February 2013 to meet members of the legal profession, and representatives of government, media and civil society.
Following the suspension and revocation of the visas the IBAHRI was assured that the Sri Lankan High Commission in London would cooperate in the investigation and resolution of the matter. To date, no further information has been forthcoming. However, we remain hopeful that the Sri Lankan government will wish to remain open to international engagement and will reinstate the visits accordingly.

Read further details at tinyurl.com/IBAHRISriLankamission2013.

Lebanon: parliamentary strengthening 2013 

In February 2013 the IBAHRI undertook a two-day training programme for parliamentary staff in Lebanon. The training took place at the Arab Institute for Parliamentary Training and Legislative Studies (AIPTLS), in the Lebanese Parliament. It aimed to improve the participants’ knowledge of the role of parliament in upholding the rule of law and strengthening the implementation of human rights obligations in Arab Inter-Parliamentary Union (AIPU) states.

It also examined how the Lebanese and other AIPU parliaments already incorporate human rights scrutiny into their legislative process and considered how existing procedures and tools may be further strengthened. Examples of best practice and case studies from the region and from the UK Parliament’s Joint Committee on Human Rights (JCHR) were discussed.

The training also marked the launch of the Arabic version of the TWC/IBAHRI handbook Human Rights and Parliaments: Handbook for Members and Staff. The Handbook aims to give practical guidance to members of parliament and their staff in ensuring parliaments fulfil their critical role in ensuring the legislature upholds the rule of law. It describes the content of specific rights and their limits, gives case studies and provides checklists to prompt action.

Russia: historic Magnitsky trial brings corruption and rule of law into focus

Ruth Green

Russia is set to make history as the country’s first modern-day posthumous trial gets underway in Moscow’s Tverskoi District Court. The case, involving deceased defendant Russian lawyer Sergei Magnitsky, who died in pre-trial detention in a Moscow prison cell in 2009, has brought the issue of corruption in Russia and problems with the country’s judicial and penitentiary systems all firmly under the international media spotlight.

Another quirk of the trial will see the other defendant, Bill Browder, the founder of investment fund Hermitage Capital and Magnitsky’s client at the time of his arrest, examined in absentia, making him one of the few foreigners ever to stand trial in absentia in Russia.

After several months of delayed proceedings, a judge ruled on 4 March that the trial should go ahead despite the tense political backdrop between Russia and the United States. Browder, who has been instrumental in leading an international campaign to investigate Magnitsky’s death and bring those guilty to account, succeeded in bringing his campaign to the US last year and in December President Obama signed into law the Sergei Magnitsky Law of Accountability Act. Russia reacted strongly by enforcing a ban on Americans from adopting Russian citizens.

In spite of the huge amount of international attention that the case has attracted, a recent study by the All-Russian Center for the Study of Public Opinion (VTsIOM) suggests that the Russian public are not as aware of the Magnitsky case as might be expected, notes Alexander Nadmitov, managing partner of Nadmitov Ivanov & Partners. ‘According to the poll, on 15–16 December 2012, 35 per cent of Russians knew nothing about Sergei Magnitsky,’ he says. ‘Fifty-three per cent had only heard of his surname and knew nothing else about Sergei Magnitsky, six per cent said that he died in the preliminary detention jail, two per cent said that he was a fighter against corruption who exposed financial fraud, one per cent of respondents had heard about him in the connection with the Magnitsky List, two per cent said that he was a lawyer and an advocate of a foreign company and one per cent said that he was a public politician.’

Although the ordeal may have caused a relatively small stir among the Russian public, undoubtedly the court case will prove an important milestone in the local legal market. The preliminary hearing for the trial was initially postponed on 28 January after Magnitsky’s family and lawyers refused to take part, but on 18 February it was revealed that the state had appointed two lawyers to represent Magnitsky and Browder.

The lawyers in question, Nikolai Gerasimov for Magnitsky and Kirill Goncharov for Browder, practise at Law Office No5, which is located in the same district as the trial is taking place. The appointments have been made despite an urgent plea in January by Magnitsky’s mother Natalya Magnitskaya, to the Chairman of the Moscow Bar Association Henri Reznik, to ask its members not to take part in the trial.

However, as Nadmitov explains, under Russian law lawyers can be appointed to a trial at the court’s discretion. ‘While I don’t know the circumstances of a criminal case against Sergei Magnitsky and Bill Browder, nor am I acquainted with the case materials, as regards procedural matters, under Articles 49–51 of Russia’s Criminal Procedure Code, investigators or the court have a right to appoint lawyers for defendants in certain circumstances,’ he says. Moreover, according to the rules of the Moscow Bar Association, any lawyers appointed to the case face disbarment if they refuse to take part in the trial.

Meanwhile, Jana Kobzova, a policy fellow and wider Europe programme coordinator at the European Council on Foreign Relations, sees the Magnitsky trial as just the latest indication that rule of law is severely lacking in Russia. ‘The posthumous trial is sadly only the more visible example of the current reality of Russia which is that there’s no rule of law and the law is twisted, tweaked and mended as needed and required by the ruling elite,’ she says. ‘Strangely, the more absurd the trial is, the more they’ll press ahead with it.’

While Kobzova is hesitant to draw parallels with the Magnitsky trial and Stalin’s show trials, the general purpose behind the trial is all too similar, she says. ‘It’s of course not comparable at all, but as Ivan Krastev argues when one looks back in history, the show trials in the 1930s in Russia took place not to fool people into believing that the defendants admit their mistakes and wrongs, but to show to everyone that the state has capacity to break down each individual and force them into admitting things they never did, despite everyone knowing that what they confessed doing they’ve never actually done.’
In December 2012, in the only court case related to Magnitsky that has taken place to date, a Russian court cleared prison doctor Dmitry Kratov of negligence while Magnitksy was in his care. As for the verdict for Magnitsky’s own trial, it doesn’t bode well when you consider that the conviction rate for criminal trials in Russia is over 99 per cent.

Read a further article about Sergei Magnitsky’s pre-trial detention at tinyurl.com/Magnitsky-pre-trial.

IBAHRI publishes its 2012 Annual Report

The IBAHRI has released its latest annual report, providing an overview of the Institute’s activities and achievements in 2012. The IBAHRI works to promote and protect human rights and the independence of the legal profession worldwide, the 52-page publication includes details of the IBAHRI’s capacity building programmes, fact-finding missions, trial observations, advocacy initiatives and training programmes held across the globe.

IBAHRI Co-Chair, Sternford Moyo said, ‘Strengthening both national and international institutions interested and involved in the administration of justice, human rights, and freedoms of many people across the world has never been more important. In recent years there has been a global awakening to the ideals enshrined in the Universal Declaration of Human Rights, which the IBAHRI works to promote and protect.’

He added, ‘The 2012 IBAHRI Annual Report shows that there were more IBAHRI capacity building initiatives to strengthen the skills and competencies of human rights lawyers in many nascent democracies than in
previous times. The Annual Report illustrates how much has been achieved during the last year, but also acts as a reminder of the vast amount of work to still be done.’

The Report can be downloaded from tinyurl.com/IBAHRI-Annual-Report-2012.

IBAHRI confronts unrelenting challenges facing legal profession in China

The IBAHRI has issued a thematic paper on China’s diverging legal profession. Author Chen Youxi argues that, while commercial lawyers are afforded high financial gains and relative freedoms, those practising criminal or administrative law face unrelenting challenges and severe restrictions to freedoms.

The paper, entitled ‘A tale of two cities – The legal profession in China’, provides a succinct background to legal practice in China – from the 1930s to the most recent reforms, including the development of private firms and the 2008 revised Lawyers Law – followed by a detailed analysis of the challenges facing lawyers today, and a view to the future of the legal profession in China.

Venezuela: IBAHRI continues to monitor Judge Afiuni trial 

The IBAHRI continues to monitor the trial of Venezuelan Judge María Lourdes Afiuni, whose case has become emblematic of the lack of independence and politicisation of the judiciary in Venezuela. The IBAHRI’s expert trial observers have attended all eight hearings, since the trial began in March 2013. The trial is in the evidentiary stages and is likely to continue throughout 2013. The first three scheduled hearings in 2012, attended by the IBAHRI were postponed at the last minute. It has been speculated in Venezuelan media reports that this was, in part, an attempt to discourage the presence of international observers. The IBAHRI continues to observe scheduled hearings and to hold meetings with key stakeholders.

Judge Afiuni was arrested and imprisoned in 2010 after she released on bail a political prisoner, in compliance with the Venezuelan penal code and applying a decision of the UN Working Group on Arbitrary detention. Read more at tinyurl.com/JudgeAfiuniTrial.

Mali: successful and legal intervention, but questions remain

Rebecca Lowe

France’s intervention in Mali to assist the government in its fight against Islamist terrorist groups has garnered widespread global support while raising serious questions, notably regarding continued inaction on Syria.
African nations neighbouring Mali have provided troops and resources, while the United Kingdom recently bolstered efforts by supplying two aircraft and 240 troops to help train soldiers.

But why was France’s intervention so straightforward, while Syria remains unassisted and in turmoil? Was France acting wholly within international law – and if so, what lessons can be learnt concerning global inaction in Syria and elsewhere?

Hans Corell, former Legal Counsel of the United Nations, suggests that the situation in Mali is an example of what can be done when the international system works effectively. He has long called for an overhaul of the structure and procedures of the UN Security Council (UNSC), including the use of the veto by permanent members.

‘Looking at Syria and Mali, the lesson is that the Security Council must act when international peace and security is threatened and then make use of the same yardstick,’ he says. ‘Determined and consistent action by the Council would send a resounding signal around the globe, in particular to oppressive regimes and presumptive warlords – in other words, those who cause the conflicts – that the Council will be faced with unless they are prevented.’

International law experts seem to agree that the intervention of 4,000 French troops in Mali on 11 January was legal, though they differ in their reasoning.
France gave three justifications: Article 51 of the United Nations Charter, which allows for ‘collective self-defence’; the fact that Mali itself appealed for help; and the backing of the UNSC.

While each argument is convincing, say experts, the overall case is not quite as straightforward. Article 51 allows for ‘individual or collective self-defence if an armed attack occurs against a member of the UN’. While this justification seems sound, the Article has traditionally been interpreted to mean an attack of one state against another. In two International Court of Justice decisions, in 2004 and 2005, the Court ruled that the Article does not extend to self-defence against private groups such as terrorists.

France’s second justification, the invitation from Mali, is similarly ambiguous. Throughout France’s colonial history in the region, such appeals were often made by undemocratic regimes as a way to suppress their people. States therefore do not have an unlimited right to respond to intervention requests. While there is no question that Mali’s terrorist threat is real, it is unclear whether the government’s consent alone is sufficient legal basis to give France the all-clear.

The final justification, UNSC Resolution 2085, seems the most convincing. Yet the Resolution only authorised the use of force by an African-led support mission, while urging other member states to provide ‘necessary assistance’. While the call to arms was later ramped up in a press release, a further Resolution clarifying the terms was not forthcoming.

Yves Doutriaux, Member of the French Council of State and former Deputy Permanent Representative of France to the UN, believes all three reasons are sound. He admits that former ‘Françafrique’ interventions were unjust, but points out that ‘this is clearly not the case in Mali’, where a large portion of the population are in support of the action.

Richard Goldstone, former Chief Prosecutor for the International Criminal Tribunal for the former Yugoslavia and Rwanda, agrees. ‘In my view the intervention is consistent with international law. I believe the strongest basis for justification for the intervention is the UNSC Resolution, but I also believe that foreign military intervention at the request of the lawful government to repel an internal threat does not contravene international law.’

However, a leading international barrister and judge, who declined to be named, confesses he ‘doesn’t see the immediate relevance of Resolution 2085’ as it is too restricted in scope. ‘UNSC authorisation of use of force must be explicit, it cannot be presumed,’ he explains. ‘The UNSC seems to have changed its mind later, but a press release is no way of expanding the terms of a Resolution.’

Yet the lawyer finds Mali’s entreaty for help a ‘sufficient legal basis in the circumstances’. While such assistance is not an unlimited right, he stresses that assessments depend on individual circumstances. ‘In this case I think it works,’ he says.

As the differing responses to France’s operation show, international law is far from unequivocal. Still in its infancy, it remains malleable and subjective – as well as highly political, according to David Michael Crane, former Chief Prosecutor of the Special Court for Sierra Leone, who was responsible for indicting former Liberian President Charles Taylor. The decision to do something is not a legal one, or even a moral one, but a political one.’