Human Rights News - June 2011

  UN human rights worker killed in Afghanistan

The death of UN human rights officer Joakim Dungel, 33, has highlighted the challenges still facing soldiers and aid workers in Afghanistan ten years after the conflict began.

Joakim, an IBA Fellow for the International Criminal Tribunal for the Former Yugoslavia, was killed in an attack on the UN Assistance Mission in Afghanistan (UNAMA) on 1 April. Afghan demonstrators enraged by the burning of the Koran by a pastor in Florida, USA, led the assault, which also killed two other UN staff and four Nepalese guards.

The deaths were the tragic consequence of a bloody war that has claimed the lives of nearly 5,500 soldiers and civilians since it began in 2001. Whether the conflict has been worth such a momentous sacrifice is an extremely difficult question to answer. Yet beyond the battleground it is important to remember some of the valuable progress that has been made to strengthen the democratic process and rule of law.

The Afghan Independent Bar Association (AIBA), established in 2008 with the assistance of the IBA’s Human Rights Institute (IBAHRI), has played a central part in this process. The AIBA took over duties from the Ministry of Justice, including registering lawyers, setting entry requirements for the profession, providing continuing legal education and enforcing the professional code of conduct. In 2008, there were only 400 registered lawyers in Afghanistan; now there are 1,100, and the number is growing.

The AIBA’s focus is now on revising the bar exam, developing legal aid initiatives and tackling problems faced by women in the legal system. It is currently one of the few bar associations in the world that has a minimum quota for female representation, and it requires all lawyers to conduct three cases pro bono every year. Via funding from the British Embassy in Kabul, the AIBA is now running training specifically directed to women lawyers and newly qualified lawyers. AIBA also produces a bi-weekly newsletter, quarterly magazine and monthly radio programme devoted to rule of law issues, helping to raise the profile of the legal profession in Afghanistan.

With a small membership, AIBA funding is a challenge, and grants from the Swedish Government, the Open Society Institute and United States Agency for International Development have been necessary to keep the Association afloat. Currently, the IBAHRI is investigating the possibility of setting up a trust fund to pay for an AIBA building, to avoid escalating rental costs.

Visit the AIBA website at www.aiba.af.

Thirty-three-year-old Joakim Dungel, a human rights officer for the UN Assistance Mission in Afghanistan (UNAMA), was among those killed on 1 April 2011 in an attack on the UN Assistance Mission in Afghanistan (UNAMA) Operations Centre in Mazar i Sharif, Afghanistan. The attack claimed the lives of two other UN staff and four Nepalese guards.

Before joining UNAMA, Joakim worked for the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL) and the Temporary International Presence in Hebron (TIPH). He was also an IBA Fellow for the International Criminal Tribunal for the Former Yugoslavia (ICTY). In online tributes to Joakim, colleagues at UNAMA describe him as ‘generous and good humoured, with the ability to connect with colleagues, as well as those who could not speak for themselves’ and as having ‘a passion for justice’.

Joakim’s death is a great loss to the international human rights community and he will be deeply missed by those who knew him.


Portuguese human rights training manual launched

The IBAHRI has published a Portuguese translation of its human rights training manual for lawyers.

‘Human Rights in the Administration of Justice: A Manual for Judges, Prosecutors and Lawyers’ was launched at a training workshop at the Brazilian Bar Association (Ordem dos Advogados do Brasil – OAB) in Brazil on 26 April.

The trainers included Joelson Dias, of OAB’s Committee for International Relations; Percílio de Sousa Lima Neto, vice-president of the Secretariat for Human Rights; Professor Carlos Ayala Corao, IBAHRI council member and ex-president of the Inter-American Commission on Human Rights; and Judge Erivaldo Ribeiro Santos, of the National Justice Council and winner of the IBAHRI/ Innovare Access to Justice Prize.

The manual was translated pro bono by the Brazilian Bar Associations’ Centre for Studies (Centro de Estudos das Sociedades de Advogados – CESA). It will facilitate future training in the field of human rights for judges, prosecutors and lawyers in Portuguese-speaking states. To download the manual in Portuguese, English, Spanish or Arabic, visit: tinyurl.com/ibahri-portugaltraining


Japan earthquake two months on: disaster could prompt a revision of energy policies

Tokyo lawyers have spoken of their concerns about nuclear energy and the economy as Japan struggles to come to terms with the aftermath of the worst natural disaster ever to hit the country.

As recovery efforts gather momentum, hopes are high that the severe damage caused to the Fukushima Daiichi nuclear power plant – rated 5 on the 7-step International Atomic Energy Agency scale – could prompt a revision of energy policies in Japan and elsewhere.

‘The failure in the nuclear plants in Fukushima has posed fundamental questions to us about energy, ecology and the economy,’ says Akira Kawamura, President of the International Bar Association. ‘It is said the amount of liability of the power company, Tepco, could be as much as US$200bn.

‘It will force the governments in other parts of world to change their energy policies, which may affect the global economy considerably.’

The Tohoku earthquake and tsunami on 11 March, which left over 27,000 people missing or dead and destroyed thousands of buildings, was described by Japanese Prime Minister Naoto Kan as ‘the toughest and most difficult crisis’ Japan has faced since the Second World War.

The construction of nuclear power stations has now been frozen by the government, and several other countries, including China, have temporarily suspended approval for new plants.

‘People expect that Japan will have to put more emphasis on natural power, including solar energy, but the government has not decided anything concrete yet,’ says Futoshi Toyama, Director of the Office of International Affairs at the Japan Federation of Bar Associations. ‘People in the Tokyo area will have to make historical efforts for electricity saving for this summer and winter.’

For Toyama and others, impending power shortages and a prolonged economic slump remain a pressing concern. Recovery efforts from the tsunami could cost up to US$235 billion, according to the World Bank, and in its April fiscal report the government admitted that economic recovery had stalled.

‘I am not anxious about the recovery so much in terms of the reconstruction of the devastated areas,’ says Toyama. ‘I am more worried about the economic downturn caused by the natural disaster and the consequent electronic power shortages, which are expected this summer.’

Read the full article here: tinyurl.com/iba-tsunami


IBA Human Rights Institute Venezuela report

The IBAHRI has published the report of its fact-finding mission to Venezuela, which investigated the independence of the judiciary and the alleged human rights abuse of Judge Maria Lourdes Afiuni, currently under house arrest. The report, called ‘Distrust in Justice: the Afiuni case and the independence of the judiciary in Venezuela’, highlights the many challenges facing the administration of justice in Venezuela. It recommends the separation of powers to strengthen the rule of law.

The report was launched on 25 April with a panel discussion at the Brazilian Bar Association (Ordem dos Advogados do Brasil – OAB) in Brazil. The IBAHRI had previously visited several stakeholders in Caracas in February, when it was the first international delegation to secure a meeting with Judge Afiuni, who is suffering from cancer.

Afiuni was arrested in December 2009 after President Hugo Chavez accused her of corruption for freeing a banker accused of breaking currency controls. He says her detention is legitimate given suspicions surrounding the man she freed, banker Eligio Cedeño, who jumped bail and fled to the US.

Afiuni, however, insists she released Cedeno in accordance with the law, because he had been in jail for three years without trial, exceeding legal limits.

The IBAHRI panel included the president of the Brazilian Bar Association, Ophir Cavalcante; Belisário dos Santos Junior, former secretary of the Ministry of Justice for São Paulo and IBAHRI delegate on the Venezuela mission; Professor Carlos Ayala Corao, IBAHRI council member and ex-president of the Inter- American Commission on Human Rights; and Alex Wilks, IBAHRI senior programme lawyer.

Read the report here: ibanet.org/IBAHRI.aspx.


Bin Laden killing: justice or revenge?
Rebecca Lowe

For the thousands of people who have lost friends and family members in al-Qaeda-sponsored terrorist attacks, it was difficult to greet the killing of Osama bin Laden with anything other than relief – and even, perhaps, triumph.

Yet, since his death on 2 May, bin Laden has continued to be a controversial and divisive figure. Far from being an open and shut case, the killing has prompted a fierce debate over the scope of America’s jurisdiction in this matter. Even a figure like bin Laden cannot be subjected to extrajudicial acts of revenge, after all, or the term ‘justice’ itself becomes meaningless. So, was the killing legal, and, if so, under which law?

According to US officials, bin Laden’s death should be judged according to the law of war. He was an enemy commander leading an armed conflict against their country, they argue, and Congress long ago approved the use of military force as a means of defence against the perpetrators of 9/11 – the Authorization for Use of Military Force Against Terrorists statute was enacted on 18 September 2001. Bin Laden, for his part, has hardly been reticent about his violent desire to destroy Americans and their allies.

Others, such as Christof Heyns, UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, and Hans Corell, former Legal Counsel of the United Nations (UN), are less convinced. They argue that the killing should be judged under international law. If any member of al-Qaeda can legally be targeted as a means of self-defence, they point out, it sets a dangerous precedent and amounts to little more than a global assassination policy.

Justice Richard Goldstone, former Chief Prosecutor of the UN International Criminal Tribunal for the former Yugoslavia, chaired the IBA Task Force on International Terrorism. Speaking at the launch of the IBA report, ‘Terrorism and International Law: Accountability, Remedies, and Reform’ in March, he said: ‘The rhetoric of the George Bush administration’s “war on terror” has stood in sharp contrast to the belief of many that terrorist threats are the proper purview of policing and criminal justice, rather than military intervention and the law of war.

‘Some, nevertheless, have questioned whether contemporary international law is equipped to meet the challenges of modern terrorism.’

Speaking to the International Bar Association (IBA), Hans Corell, a member of the IBA War Crimes Committee Advisory Board, said he did not believe the law of war argument was ‘justifiable’, as Pakistan, unlike Afghanistan, is not a war zone. ‘The point of departure must be that terrorism constitutes criminal acts that should be dealt with through law enforcement. Such enforcement must be conducted in conformity with certain legal standards. This point of departure is fundamental and has been emphatically stressed by many, including by two organisations of former heads of state and government: the Madrid Club and the InterAction Council.’

He added: ‘It is important to stress that the term “war on terror” is a very dangerous misnomer that has created much confusion and which has led to violations both of human rights law and humanitarian law. Therefore, if members of al-Qaeda are found not in a zone of combat, they should be subjected to law enforcement.’

Yet, David Crane, founding Chief Prosecutor of the Special Court for Sierra Leone and member of the IBA War Crimes Committee Advisory Board, believes the attack was sanctioned by both the US and international community. He told the IBA: ‘I only support the use of force if it is properly authorised under domestic and international law and follows the laws of armed conflict.’

In Crane’s view the President is empowered under US law to direct the use of armed force against al-Qaeda, including bin Laden and others. He also refers to additional international authorisations via the UN and NATO that followed soon after 9/11, and cites the basic international principle of the inherent right of a nation to selfdefence, found in Article 51 of the UN Charter. On this basis, Crane said: ‘The targeting of Osama bin Laden was a legal action.’

For many, it is impossible to make a definitive legal judgment on the matter until the US has released more information. Doubts have been raised as a result of the inaccurate information given out by US security staff in the days following the killing. David Tolbert, President of the International Center for Transitional Justice, believes the US has an ‘obligation’ to provide further details, while Justice Richard Goldstone said he was unwilling to speculate as the question ‘depends on facts we do not know’.

For Corell, the matter has wider ethical considerations beyond the killing itself, as the actions of the US could set a precedent across the world.

‘If these states are seen to act as they please when it suits their interests, it will have a devastating effect on the possibility of establishing two fundamental preconditions for international peace and security: democracy and the rule of law,’ he said. ‘To describe what happened as “justice has been done” is simply not acceptable – not even in relation to a person like Osama bin Laden. That justice has been done presupposes that the suspect has been tried and found guilty by a court of law.’


Ugandans drop Anti-Homosexuality Bill

The Ugandan Parliament adjourned last month without debating a bill that would have imposed the death penalty for some homosexual acts. Gay rights groups celebrated the move, but fears remain that the Anti- Homosexuality Bill, first introduced in 2009, could re-emerge when the new parliament meets later this year.

Homosexual acts are already illegal in Uganda, but the bill would increase the penalty for those convicted to life in prison. Those found guilty of ‘aggravated homosexuality’ – when one of the participants is a minor, HIV-positive, disabled or a ‘serial offender’ – would face the death penalty. Anyone accused of failing to report a person they knew to be homosexual could also be prosecuted under the legislation.

On 17 May, the International Day Against Homophobia, the IBAHRI called on lawyers and bar associations around the world to work towards eliminating discrimination against people on the basis of their sexual orientation. Phillip Tahmindjis, Co-Director of IBAHRI, said: ‘The prevalence of anti-homosexual legislation is clearly at odds with international human rights law. International and regional instruments, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Africa Charter on Human and Peoples’ Rights, enshrine the protection of human dignity, privacy and equality for everyone’.

There are still many parts of the world where homosexuality is a criminal offence and discrimination on the basis of sexual orientation is commonplace. In 42 out of 54 Commonwealth countries, homosexuality remains a criminal offence.

In 2010, the IBAHRI Council passed a resolution opposing discrimination, violence and other breaches of human rights directed against people on the grounds of their sexual orientation.


Phone-hacking scandal prompts ‘public interest’ debate

The on-going phone-hacking scandal at News of the World, owned by Rupert Murdoch’s News International, looks set to be one of the most expensive to hit a British media group, with legal costs predicted to rise into the tens of millions of pounds.

Last week, Britain’s largest circulation Sunday newspaper issued an unprecedented apology for tapping into the mobile phone voicemail messages of eight public figures between 2004 and 2006. Currently, 24 public figures are seeking compensation from News International, but law firm Mishcon de Reya, acting for several of the claimants, estimates there could be more than 6,000.

Clive Goodman, the News of the World’s royal editor, and Glenn Mulcaire, a private investigator, have both already been jailed for intercepting messages. Assistant editor Ian Edmondson, chief reporter Neville Thurlbeck and journalist James Weatherup were all arrested last month.

Nevertheless, phone hacking and other illegal activities may be appropriate for news gathering in circumstances where there is a strong public interest defence, according to Gillian Phillips, Director of Editorial Legal Services at Guardian News & Media Ltd, based in London.

Under UK law, it is illegal to gain access to another person’s telephone under the Regulation of Investigatory Powers Act 2000 (RIPA), regardless of whether the material uncovered is in the public interest.

‘I would always be an advocate of including some sort of public interest defence in any legislation of this sort,’ Phillips said. ‘For example, this is the case under section 32 of the Data Protection Act 1998, where civil liability on the part of the media for breaching the data protection principles depends upon whether the defendant in question can establish a reasonable belief that publication would be in the public interest.

‘It seems to me that this acknowledges the important role the press have to play in uncovering corruption and crime, and leaves it to a court to decide if that was acceptable.’ Read the full article, and further Global Insight web content at: tinyurl.com/iba-phonehacking

 

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