The IBA interview: Diego García-Sayán

Tuesday 9 May 2023

In this discussion, Diego García-Sayán tells the IBA’s Director of Content, James Lewis, about his remarkable life, high-level diplomacy and what he learnt during six years in his role as UN Special Rapporteur on the independence of judges and lawyers.

James Lewis (JL): You've held a lot of senior positions in governments as a judge and with the United Nations. I wonder if you could talk about any highlights or things that stand out for you through that period?

Diego García-Sayán (DGS): I had the opportunity in the early nineties to act as an advisor with a UN team that was handling the peace negotiations to end civil wars in Guatemala and El Salvador. I had begun to participate in this process, thinking that many of the things that were being discussed were impossible to finally resolve because you were speaking with people that were on different sides in wars, in battles in which people were being killed, so when one is wording how to reform the army, how to transform the judiciary or build a new police [force], that sounds kind of utopian.

But finally, a fantastic peace agreement was built in El Salvador [and] signed in 1992. That was while Javier Pérez de Cuéllar was Secretary-General of the UN. But after that, when Boutros Boutros-Ghali was the Secretary-General, he appointed me as his representative to monitor the peace agreements in El Salvador. So I moved there with my family and 1500 people – civilians, police and military – and a big transformation took place, not because of me or the UN, [but] because there was an agreement to finish a war in a tiny country like El Salvador, in which 100,000 people were killed. That has to do with politics, with diplomacy. The process of political negotiation as a means for peace, for democracy and for human rights is something [in] which I really strongly believe.

We should protect and defend the UN because it's the only world forum that exists, with of course a lot of limitations

When we suffered an authoritarian government in Peru with Fujimori in the nineties, there was a possibility to open the door to political transition. There was a kind of dialogue proposed by the Organization of American States in which I was one of the people that promoted that action. In a way, it was a fantastic step, to open the possibility of a political transition in Peru. At the end of the nineties, in the year 2000, when that transition occurred, the president that appeared in that crisis, Valentín Paniagua, called me to be the Minister of Justice to handle that transition.

JL: Do you feel the UN is as effective as it can be, given we're seeing situations like Ukraine, Syria and Yemen? Does it need to be reformed?

DGS: Well, the UN is what we have. We should protect and defend the UN because it's the only world forum that exists, with of course a lot of limitations that have to do first with other sources of power that are competing: governments, states that are very, very important, that didn't exist when the UN was created more than 70 years ago. A world in which, when new critical situations appeared, like what is happening now in Ukraine, the rules the Security Council signed after the Second World War at this stage impede a concrete, effective action by the UN, and in which it seems that many of the matters of the world agenda are not being handled strongly by the UN, not because they are weakly conducted, but because of the power of the media. The power of fake news. But in any case, of course, I would say the UN needs some reform – the composition of the permanent members of the Security Council, that perhaps is very difficult. But I think that the UN should focus more clearly on these areas. One area is human rights, in which the main things are already [being addressed] in the agreements, the Universal Declaration [of Human Rights], several things that have to do with my mandate that is already finishing. But, for instance, in the case of human rights, you have more than 50 thematic mandates that have very weak, substantial administrative and logistical support because there is not enough money in the UN. That's a fact. Nobody can change that dramatically. But it seems that each time a group of countries creates a new mandate – and with all due respect, if there is a mandate to deal with torture, to deal with summary executions, at the same level is a mandate to deal with leprosy or other things that are very important – that could, in a way, distract from the limited resources.

JL: Do you think 50 is too many? What should it be refined to?

I think that the role of the UN in dealing with human rights is absolutely crucial

DGS: Not more than ten. And secondly, improve the administrative logistical support which is very, very weak and poor. It will require some sort of feedback from the rapporteurs when they are leaving – you have some recommendations to improve the situation. I think there is a question of management that can be severely improved. The UN was founded several decades ago. It continues to deserve more support. I think that the role of the UN in dealing with human rights is absolutely crucial. There are very complex cases because of the political composition of the UN, so it’s not always possible to act efficiently. I think that many countries that criticise the UN should analyse their own role, their own function and to what extent they could do things better. I admit that with the tensions in the world after what is occurring in Ukraine, it is not the best time to have this discussion expecting positive results. But it is a matter of insisting on this so that this possibility can open up in a moment.

JL: There's definitely a need to refocus on the initial intentions of the UN. Do you rule out reconstituting the Security Council? Because it seems to me that it's a widely held view that the current permanent members are not the right permanent members and that there should be perhaps two or three additional countries added.

DGS: That's a long debate. I agree with many other people who say there should be more permanent members from Latin America. Besides that, I am not sure it is viable, but I think eventually we should rethink what the role of the Security Council is. I think the Security Council is not in a position to stop all wars, let's be realistic. What are the conditions in which a peacemaking or a peacekeeping operation should be designed? I would say certain areas, perhaps to be realistic, maintaining the veto power, which is very difficult to change. I think that we could establish certain rules in which more power [is] given to the Secretary-General regarding peacekeeping and peacemaking operations with a kind of budget and allocation of troops that can eventually have more flexibility for the UN as an institution. What is happening right now? There’s no possibility to build a peacekeeping operation because governments won’t give their troops, won’t give the money. You solve that in a context in which there is money. The responsibility is mainly with the member states and especially with the five permanent members of the Security Council.

JL: Focusing on your mandate, which is coming to an end after six years, you’ve been the UN Special Rapporteur on the independence of judges and lawyers. Perhaps you can just start by reminding us why independence of judges and lawyers is so important.

DGS: For justice to be effective, it has to be legitimate. It needs to be independent. From political power, from economic power, from the criminal or de facto. Not because of a kind of theological belief of independence of the judiciary, but because of its own legitimacy as a requirement so that the decisions are stable, the decisions can be duly implemented and followed up after that. If justice is not independent, then justice can be bribed, and justice can be irrelevant for the rule of law. So, it’s an essential thing.

JL: How influential has the UN’s 2030 Sustainable Development Agenda been during your six years holding this mandate?

DGS: For me, as rapporteur, that has been the crucial way to handle different matters. It has one main value and concept that is its basis: access to justice. Access to justice just doesn't exist for many, many people and many others have no access to an independent justice.

If justice is not independent, then justice can be bribed, and justice can be irrelevant for the rule of law

So, with the [2030 Agenda] you can speak about a lot of details around justice, but the first is access. And this has to do with the goals, the specific goals connected to budget, access to technology, private investment, of course. [The need for internet access] exploded during the pandemic, which was more obvious when the courts were closed and access was only through the internet. There were two worlds: the world in which people and lawyers got access to the internet, and now the situation in rural areas in Bolivia, Nigeria, Peru and elsewhere. And not even lawyers had access to the internet, or even judges. It turned out to be dramatic, the [relationship between] exclusion and the law. I think at this stage with the 2030 Sustainable Development Goals, its access and participation of society, the legitimacy of society, the credibility of a transparent procedure of appointment, transparent procedure of evaluation. Of course, there will always be complaints, procedures will always be long. People that lose will always accuse others of bribery. I am confident that if concrete goals are established, some results will come. But we need much more pressure on that.

JL: In your report to the Human Rights Council in 2022, you noted with concern a global increase in practices that hinder and restrict legal practice. I'm just interested in what you're seeing in this growing trend.

DGS: When the independence of judges is attacked, simultaneously the freedom of movement of lawyers is attacked as well. The independence of bar associations is absolutely crucial, because they represent lawyers, and they should be of course held accountable if they are supporting some things that could be considered illegal. The bar association should be seen not as a trade union of the lawyers, but [as] a component of democratic society in which they can be part of solutions and become part of better ways to guarantee rule of law. But because in the cases in which judges are attacked and lawyers are attacked, the reaction of the public has not always been strong.

JL: Are there particular areas of practice that make certain lawyers particularly vulnerable?

DGS: Of course. You have lawyers connected to cases of human rights, Indigenous peoples, LGBTQI+, which is a major matter of disruption in certain countries. I would [also] say in the case of corruption, because many situations are to do with the interaction with somebody in political power. These are cases in which lawyers are being increasingly attacked.

JL: You were appointed to the role towards the end of 2016. And since then, we've seen a specific moment, really, with populist nationalism sweeping across the globe. How influential do you feel that's been, in terms of independence or lack of independence of lawyers and judges?

DGS: Absolutely crucial, because that has been a major source of new threats and not because those kind of policies were so completely new, but they are much more consistent, much more widespread in some countries that began to go in reverse, like democratic Poland, for instance, [and] what we've seen in Latin America. President Duda has dismissed [Poland’s] constitutional court and appointed another one without any minimal idea of transparency. Nobody cares. There has been no reaction at all. Why? Because there is some political support for these measures, considering that these are part of a process to reduce crime. I think that this kind of authoritarian populism is one of the major actual threats in different parts of the world. These kinds of messianic leaders are not new in politics, but what is in a way new, is this combination of authoritarianism and populism that unfortunately has in some countries certain internal social support. So, the world should pay attention to that.

JL: What can states do to protect the independence of lawyers and judges?

DGS: I think there are a lot of ways, beginning with strong budgetary support to give the judiciary the role it deserves as one of the key components of democratic society, allocating the power they deserve in their decisions, the respect of the rules of judges and the function of lawyers. I think that access to justice is part of the solution. You need that, in a way, to promote the strengthening of the legitimacy of the judicial process and the legal system to show that [it] works. I would say there is a need to have a major discussion on how to improve the selection and appointment process [of the judiciary], not only in authoritarian countries but also in democratic countries. We should rethink to what extent governments, parliaments [and] senates should be involved in the decision and selection processes of high courts. I personally have my doubts; I don’t think that would be the best process. I don’t have a model. I made the report on the Judicial Council to bring together all different institutions of society and make a selection process more objective without political involvement.

JL: Where states aren’t meeting their obligations, are there mechanisms or legal instruments that can hold them to account to ensure that they do?

DGS: I think that the existing international rules are quite appropriate. The basic principles on the independence of judges and lawyers are more than 35 years old without any change or complaint and eventually through some very specific additional instruments it can be strengthened. The Council of Europe has begun a discussion in which I was participating as an observer to the draft Convention for the Protection of Lawyers, [which is] open to countries that are not members of the Council of Europe. It is a good idea to have a convention and to open it to other countries but this is to send the message that this is important, this is a priority in Europe. In several European countries lawyers have sent me messages that they are still not sufficiently protected.

This is an abridged version of the interview with Diego García-Sayán at the IBA Annual Conference in Miami. The filmed interview can be viewed in full here.