‘Shadow of justice’ is hanging over Syria, says UN legal chief
‘The shadow of justice is hanging over the perpetrators of crimes in Syria,’ UN legal counsel Patricia O’Brien has declared, while admitting that the global legal system is currently ‘in a paralysis’.
Despite the lack of action by the UN Security Council while civil war continues to escalate, Ms O’Brien said the role of the Council ‘should not be underestimated’. Speaking at the IBA Annual Conference, she stressed that there was far more to the UN’s ‘responsibility to protect’ (RTP) principle than military action alone.
Established in 2005, RTP states that if a state fails to protect its population from mass atrocities, the international community has a responsibility to assist the state to do so – or, as a last resort, to intervene militarily. In Syria, however, permanent Security Council members China and Russia have used their veto power to prevent intervention.
‘There is much more to RTP than the controversial question of the use of force,’ O’Brien told over 100 lawyers at the Convention Centre Dublin (CCD) on 1 October. ‘This issue is very, very important to bear in mind. Moral and political pressure is being relentlessly placed on Syria.’
The 1982 massacre of around 20,000 Hama residents carried out by President Bashir al-Assad’s father, Hafez al-Assad, was never brought before the UN, O’Brien pointed out, and never discussed ‘even momentarily’ by the UN General Assembly. ‘Now,’ she said, ‘the world’s attention is focused on Syria.’
Even the most passionate interventionists admit that military action may no longer be an option. former French Foreign Minister Bernard Kouchner, who founded Médecins Sans Frontières (MSF) in 1971, has long been an advocate of humanitarian intervention and was a seminal influence in the UN’s adoption of RTP. Yet regional tensions would make war hugely dangerous, he told IBA Global Insight, as Hezbollah, Iran, Israel, Turkey, Saudi Arabia and other nations would almost certainly be forced into the conflict.
‘At first it was possible, now it is impossible,’ he said in an interview on 5 October. But this did not dampen his criticism of the UN, which he believes is in desperate need of structural and procedural reform. ‘We cannot stay inert facing such a bloodbath in such a bloody war because of the veto power. We need to introduce other countries [to the Security Council], representing Africa and the Arab world […] We are stopping the real progress of human rights and the rule of law by this stepping back in Syria.’
Without a green light from the Security Council, no humanitarian intervention is currently legal under international law. For Kouchner, however, the law should not pose an insurmountable obstacle. His influence was central to the NATO intervention in Kosovo in 1999, which did not have a Security Council mandate. Likewise, when he set up MSF in 1971, it was illegal for doctors to cross national borders to treat patients.
‘Sometimes you have to be illegal to change the law,’ he told a roomful of lawyers at the CCD on 5 October. ‘And after the change, lawyers will follow.’
O’Brien admits the ethics of the issue are not completely clear-cut. ‘For years, and particularly since the NATO intervention in Kosovo, there has been a significant body of thought that humanitarian intervention, even if it doesn’t obtain the support of the Security Council, is a legal option,’ she said. ‘However, from our perspective, while this may be a legitimate use of force, it is not a legal use of force.’
Frustration among the international lawyers present at the conference was palpable. For O’Brien, the lack of action was ‘egregious, intolerable’, while Juan Mendez, UN Special Rapporteur on Torture and former Co-Chair of the IBA Human Rights Institute, told a crowd of delegates that he felt ‘very strongly’ that the Security Council’s RTP doctrine should apply to Syria. However, he stopped short of advocating humanitarian intervention beyond that sanctioned by the Council.
‘I don’t see how a coalition of willing or individual states can act,’ he said. ‘It is not legally possible. But even if it was, the examples we have suggest it would not give the best results anyway.’
Mendez, O’Brien and Kouchner all expressed hope that Syria would one day be hauled in front of the International Criminal Court to answer for the atrocities. Yet Syria has not ratified the Rome Statute, which legislation that brought the court into being, and currently only the Security Council has the power to refer states that are not members to its jurisdiction.
Jailed Iranian lawyer, Abdolfattah Soltani, wins 2012 IBA Human Rights Award
Leading lawyers persecuted by the Islamic Republic of Iran have highlighted the gross human rights abuses perpetrated by the regime and called on the international community to help.
Abdolfattah Soltani was awarded the 2012 International Bar Association Human Rights Award at the IBA Annual Conference in Dublin. He is currently imprisoned in Iran’s notorious Evin Prison and has spoken out about the lack of judicial independence, the discrimination against minorities and women, the use of physical and psychological torture, the denial of due process rights for the accused, and the increasing number of executions.
Soltani’s concerns were outlined in a letter written for the award ceremony on 5 October, read out by fellow lawyer Mahnaz Parakand. ‘The ugly truth is that the political establishment in Iran, in many cases by using a few non-independent judges, has turned the whole judicial system into a tool for implementing their own wishes. They are using these courts as a heavy hammer to suppress the legitimate and legal demands of the population.’
Soltani received the award for his work providing pro bono legal counsel to those in need, and for his courage in the face of persistent persecution. He was sentenced to 13 years’ imprisonment on 4 March for spreading anti-government propaganda, endangering national security and co-founding the Center for the Defenders of Human Rights (DHRC), alongside Nobel Peace Prize-winner Shirin Ebadi.
According to Ebadi, who has been living in exile since 2009, the regime has imprisoned or harassed over 40 lawyers since June 2009. Prominent lawyers currently behind bars include Nasrin Sotoudeh, Khalil Bahramian, Mohammad Ali Dadkhah and Narges Mohammadi. All are serving sentences of between 18 months and 11 years for ‘acting against the national security’ or ‘propaganda against the regime’.
Speaking to IBA Global Insight in a recent filmed interview, Ebadi explained how all human rights activists were forced underground after the failed 2009 uprising. There are now around 1,000 political prisoners in the country, she estimated, and opposition is growing daily. Outlining the violations of due process committed by the authorities, she called on the international community to use its resources to raise awareness of the situation and help those whose voices had been silenced.
In accepting the Human Rights award, Soltani’s daughter, Maede, described how the Iranian establishment had prevented her father joining the board of the Iranian Central Bar Association and subjected him to frequent ‘threats, pressure and intimidation’, including placing him in solitary confinement for six months. Her mother had also been held in solitary confinement for six days, she said, to convince her to testify against her husband.
‘Prison life itself brings with it illness and my father, in addition to his previous health conditions, has to endure more illnesses arising from malnutrition and the appalling prison conditions,’ she said. ‘Up to now, he has not been provided with any medical care.’
Despite his damning indictment of Iran’s human rights record, Soltani echoed Ebadi’s hopes for a better future. Despite the majority of judges and lawyers having become effective employees of the state, he emphasised that many lawyers continue to respect their pledge to protect the rights of ordinary citizens. ‘There is great sadness and regret that the Iranian Bar Association stands aside and is unable to confront the abuse of these lawyers,’ he said. ‘But I hope that access to a just judicial process and civil rights, a guarantor of the establishment and expansion of democracy, advances day by day.’
Read the full story at tinyurl.com/IBAHRIAwardSoltani
MENA Regional Congress on abolition of the death penalty
The first Regional Congress on the death penalty took place in Rabat, Morocco, in October 2012, with participants from MENA states, including Egypt, Iraq, Jordan, Lebanon, Libya, Morocco, Syria, and Tunisia. The Congress comprised three days of seminars, workshops and roundtables with the aim of establishing a clearly-defined approach to abolition. The IBAHRI hosted two seminars, working with the Moroccan legal profession, with presentations from international speakers, including William Schabas, Professor of international law; Alan Gogbashia, from the British Embassy Rabat; Emilio Gines, Member of the Subcommittee on Prevention of Torture of United Nations; and Dr Mohammed Ayat, former Senior Legal Advisor, Office of the Prosecutor, ICTR.
The IBA captured exclusive film footage of the event, including interviews with a former Moroccan death row inmate and other speakers. For more information and to view the film go to tinyurl.com/IBAHRI-deathpenalty
Dramatic cut in Amazon deforestation secures 2012 IBAHRI/Instituto Innovare Award
Brazilian prosecutor Daniel César Azeredo Avelino has been awarded the 2012 IBAHRI/Instituto Innovare Special Category prize for ‘Justice and Sustainability’, for his ambitious ‘Green Municipalities’ project.
Avelino’s innovative project aims to stop deforestation in the northern Brazilian state of Pará completely by 2020. The objective is to be reached through a series of incentive agreements between the Federal Public Prosecutor’s Office, state municipalities, banks and rural producers that facilitate access to credit and tax benefits to programmes that reduce deforestation for livestock and stimulate sustainable agriculture practices. Since its inception in 2009, more than 50,000 landholdings and 90 state municipalities have registered with the scheme resulting in a dramatic 40 per cent reduction of deforestation in the region.
The Award was presented to Mr Avelino on 7 November 2012 by Gabriela Knaul, UN Special Rapporteur on the Independence of Judges and Lawyers, during the 9th Annual Instituto Innovare Award ceremony in the Supreme Federal Tribunal in Brasília, Brazil.
The Instituto Innovare is a Brazilian non-profit organisation that aims to encourage the improvement of the Brazilian justice system through a prestigious annual award scheme. Since 2010, the IBAHRI has teamed up with Instituto Innovare to award a special category prize based on a particular theme.
Sri Lankan government must end intimidation of judges
The IBAHRI has expressed its grave concern about recent threats to the independence of the judiciary and called for the rule of law to be adhered to in Sri Lanka. The call follows disturbing reports of a physical attack on the Secretary of the Judicial Service Commission (JSC), Manjula Tilakaratne, on 7 October at a time of reported heightened tension between the JSC – an independent body made up members of the judiciary that deal with all judicial promotions and appointments – and the Sri Lankan government. The attack is widely perceived as an attempt to intimidate the judiciary and interfere with the independence of the profession.
For more information go to tinyurl.com/IBAHRI-SriLanka2012
IBAHRI Co-Chair Baroness Kennedy conducted an interview with BBC Asia on the issue, which, along with media response, can be viewed at tinyurl.com/IBAHRI-SriLankaKennedy