Human Rights News from the IBA - Feb 2014

IBAHRI: looking forward to the year ahead

2013 was a tremendous year for the IBAHRI and 2014 promises to be just as busy, as the Institute continues to strengthen the reach of its activities, working to promote and protect human rights and the independence of the legal profession.

‘This year, the IBAHRI will be launching an exciting new programme supporting the Myanmar legal profession’ says Baroness Helena Kennedy QC, IBAHRI Co-chair. ‘The IBAHRI has recruited a legal specialist to provide technical assistance to the Myanmar Bar on compliance with international standards relating to the independence of the legal profession. The IBAHRI is hosting a legal seminar in Myanmar, in February 2014, providing a platform for information sharing and discussion on the role and future of Myanmar’s Bar Association.’

Among other things to expect from the IBAHRI this year are: the launch of IBAHRI fact-finding reports on Egypt and Azerbaijan – scheduled for February and April respectively; the expansion of activity in central Asia, as the IBAHRI seek funds to implement a long-term capacity building programme with the newly established Bar in Tajikistan, following significant engagement with the Tajik legal profession in 2013; and follow-up activity on the IBAHRI’s Task Force report Tax Abuses, Poverty and Human Rights.

Speaking on the IBAHRI’s work in 2014 so far, IBAHRI Co-Chair Sternford Moyo says:  ‘Already this year we have published a thematic paper on the rule of law and democracy in Afghanistan and facilitated the first in a series of trainings for judges in Tunisia on human rights in the administration of justice’. He added ‘The IBAHRI thematic paper provides fascinating insight on the rule of law in the Afghan context, authored by IBAHRI Director Dr Phillip Tahmindjis AM, who has worked with the Afghani legal profession since 2004.’

The IBAHRI judicial training in Tunisia is part of a major IBAHRI programme, implemented under the auspices of the International Legal Assistance Consortium, which aims to train all judges in Tunisia by the end of 2015.

‘We look forward to joining IBA members in Tokyo for the 2014 IBA Annual Conference,’ says Kennedy. ‘The IBAHRI will, as ever, be hosting a range of sessions on timely and contentious human rights issues relating to the legal profession.’

‘Our showcase session will look at human rights in North Korea,’ added Moyo. ‘The Hon Michael Kirby, Chairman of the UN Commission of Inquiry on human rights violations in North Korea will be joining us for what promises to be a lively and hard-hitting session! ’

Look out for our Annual Report, which will be available shortly. In the meantime, should you have any questions relating to the IBAHRI’s current and future projects, or on how to become a member, please do contact the IBAHRI at hri@int-bar.org.

IBA remembers Nelson Mandela, Founding Honorary President of the IBAHRI

In December, the IBA joined the international community in expressing sadness at the announcement of the death of Mr Rolihlahla Dalibhunga ‘Nelson’ Mandela, Founding Honorary President of the International Bar Association’s Human Rights Institute (IBAHRI) and international ambassador for democracy and freedom.

A qualified lawyer, Mr Mandela became the first Honorary President of the IBAHRI, established in 1995 to promote and protect human rights under a just rule of law and the right and ability of judges and lawyers to practise freely and without undue interference. After an IBA-arranged conference of African Bar leaders in South Africa where they met with President Mandela ‘in splendid gardens, where the great man was in astounding form... greeting leaders from all over Africa’, as Ross Harper, present at the meeting and President of the IBA at that time, said, Mr Mandela agreed to become Honorary President of the newly established entity.

To read the IBA’s tribute to Nelson Mandela, see tinyurl.com/IBA-Mandela.

India: women, violence and the law – a move to end impunity

Hannah Caddick

6 December 2013 marked the anniversary of the fatal gang rape and assault on a female medical student on a bus in New Delhi, sparking public outcry throughout India and around the world.

The crime and severity of the injuries are not unusual in Delhi, India, or elsewhere in the world. Sexual violence affects one third of women globally and ‘is definitely not,’ as former UK Attorney General Baroness Scotland QC said at Chatham House in London in December, ‘an issue peculiar to India’.

But such was the public furore, the Indian government amended the Indian Penal Code to tackle the violence against women, passing the new law just 14 weeks after the attack.

There is concern, however, that the Criminal Law (Amendment) Act 2013 has made little difference. A recent report from the United Nations and International Center for Research on Women revealed that 95 per cent of Delhi women feel unsafe in public.

Chair of the IBA Human Rights Law Working Group Ross Ashcroft is clear that ‘changes in the law are insufficient to end violence against women, unless they are backed up by adequate long-term permanent institutional and social changes.’ And, he says, lawyers ‘need to be a part of these changes.’

Vrinda Grover, a lawyer in the Delhi High Court, independent expert for the Working Group on Human Rights in India and the UN, and women’s rights advocate, agrees with many commentators that the new law has its limitations but does believe that, ‘this time round, we made a major inroad into... impunity.’

‘If any public servant is charged with sexual violence no permission from the executive will be required,’ explains Grover, ‘they will be charged and tried in the courts.’ The Amendment stipulates that rapes committed by police officers or public servants against women in their custody shall constitute a form of aggravated rape, the punishment for which increases from a minimum of seven years’ imprisonment to ten (with a maximum of life).

Grover does have concerns about the gender-specific codification of sexual crimes, which means such crimes can only be committed by a man against a woman. This is due primarily to section 377 of the Indian Penal Code, dating back to 1860 and reinstated on 11 December by the Supreme Court of India, which criminalises consensual homosexual acts. According to UK charity Mankind three in 20 men in Britain experience sexual violence. International reports reveal a far higher figure – up to 80 per cent – for men in conflict zones, prisons and the armed forces. India’s Penal Code leaves such male victims with no means of redress and, worse, at risk of being criminalised themselves.

Nonetheless, the Amendment’s broader definitions of rape and sexual assault, and codification of new crimes including acid attacks, voyeurism and forced disrobing, are seen by campaigners such as Grover to be a vital step forward for female victims.

Procedure, police and addressing impunity

Changes have also been made to the judicial process with the establishment of fast track courts. ‘The fact that they set up fast track courts in Delhi is good,’ says Aparna Viswanathan, who practises in India and is former Chair of the IBA Corporate Information Governance Subcommittee. ‘But these need to be a permanent mechanism; India has set up fast track courts in the past but they didn’t have the proper financing and, in the end, disappeared.’

But before a case of rape or sexual assault even reaches the court, police have to collect evidence and build a case – and this, for Viswanathan, is central to ending the culture of impunity. ‘This issue begins and ends with the police. The police have to get forensic evidence – otherwise you will never convict anyone.’

Ashcroft agrees, pointing to the need for psychological services, rape crisis centres and specially trained police to deal with sexual crimes against women, all of which support and strengthen the criminal legislation.

Grover has reservations about the will of the administration to change. ‘The change in law happened because the people of the country, led by the women’s movement, sought that change; the change did not come because of parliamentarians.’

The public scrutiny in the Delhi gang rape case meant that proper evidence collection and investigation was undertaken. The acid test will be in other, less high-profile cases. ‘The police in India are ill-trained, ill-equipped and abusive. There has to be some oversight of how the police are investigating, how they are collecting and saving evidence,’ said one source.

Cultural paradigm-shift

According to the National Crime Records Bureau, the first eight months of 2013 saw a rise in the number of reports of sexual violence, suggesting that women have been galvanised by the new law and events surrounding the fatal attack on 16 December 2012.

Rape in India has been viewed as a fate worse than death such is the shame and culture of blame associated with the victim – victims are described as zinda laash(Hindu for ‘a living corpse’) – but the victim of the December 2012 assault said, ‘I want to live’. ‘This was a paradigm shift for us culturally,’ says Grover. ‘She wanted to live because she knew she had done nothing wrong.’

Human rights judicial training in Tunisia 2014

The first of ten planned judicial training sessions with Tunisian judges in 2014 took place 20–23 January in Tunis.
The training is part of an ambitious IBAHRI programme, run under the auspices of the International Legal Assistance Consortium, to train all Tunisian judges in human rights and the function of judges in a democratic society by 2015. In 2013, a total of 800 judges were trained by the IBAHRI and its partner organisation CEELI Institute. Training sessions are delivered by a team of three or four international judges, providing a platform for the exchange of professional experience between Tunisian and international justices.

Rule of law and democracy in Afghanistan

The push for democracy is often seen as coming from the West, being exploited by fundamentalists who brand democratisation itself as anti-Islamist’ says a new thematic paper published by the IBAHRI.

The paper, written by Dr Phillip Tahmindjis AM, IBAHRI Director, focuses on the challenges and opportunities for democracy and the rule of law in Afghanistan, as well as the role of the legal profession in mediating these challenges. The paper addresses the complexities and fragility in a nation transitioning from conflict.

Entitled Rule of Law, Democracy and the Legal Profession in the Afghan Context: Challenges and Opportunities, the paper concludes that the country’s fledgling democratic institutions and an under-resourced legal system must be improved. It argues that tradition is outweighing the fragility of new legislation in Afghanistan and customary legal systems still predominate in the provinces. As such, the Afghan Independent Bar Association (AIBA), which represents an increasingly organised legal profession, is playing a crucial role in progressing attitudes to the rule of law and a functioning democracy.

Dr Tahmindjis has worked with the Afghani legal profession since 2004 leading an ambitious project to establish the first AIBA. ‘When the IBAHRI first arrived in Afghanistan in 2004, there wasn’t even a word for “Bar Association” in the country’s two main languages. The IBAHRI ran a large seminar in Kabul to discuss key issues with Afghani lawyers, such as: should a bar association exist? Who should be members? What powers would it have? We wanted the Afghani lawyers to build their own consensus on what was needed and how the bar would operate. It was essential that this process came from them, in order to be successful,’ says the IBAHRI Director.

‘The rule of law is ultimately a political ideal and in Afghanistan the concepts of “law” and “democracy” are unclear and highly contested. The push for democracy is often seen as coming from the West, being exploited by fundamentalists who brand democratisation itself as anti-Islamist,’ says Dr Tahmindjis. ‘What we can learn from this is the necessity for international intervention in Afghanistan to take a nuanced and sophisticated approach, encouraging the building of concepts that are accepted by the populace, rather than only the “peace-builders”.’

‘Since [its establishment], the AIBA has made tremendous strides: it has a democratically elected executive committee, membership numbers have increased dramatically and it has started to speak out as an independent voice in Afghanistan on controversial cases. But still, issues of consensus, communication, education and resources, together with traditional values, present real challenges to the Bar.’

Over the past decade the IBAHRI has been working in Afghanistan, supporting the establishment of the AIBA, funded by the Swedish Foreign Ministry and under the auspices of the International Legal Assistance Consortium. The IBAHRI continues to support AIBA with the placement of a legal specialist in Kabul, funded by the UK’s Foreign and Commonwealth Office. As well as continuing with capacity building for the Bar, there will now be a focus on revising the Bar exam, developing legal aid initiatives and supporting a women’s group to look at the particular problems faced by women in the Afghan legal system.

To read more about the AIBA see tinyurl.com/IBAHRI-AIBA.