IBAHRI contributes to UN major forum on equal access to justice for all

Thursday 18 November 2021

UN Forum on Human Rights, Democracy and the Rule of Law key takeaways

At the conclusion of the third session of the United Nations Forum on Human Rights, Democracy and the Rule of Law, which was held from 16-17 November 2021, the International Bar Association’s Human Rights Institute (IBAHRI) reflected on the IBAHRI’s contributions, the key discussions held and outcomes of the session.

The theme of this year’s Forum was Access to justice for all: a necessary element of democracy, rule of law and human rights protection. The objective of which was to create a platform for exchanging best practices, achievements, challenges and opportunities relating to access to justice.

The Forum was built around the implementation of the UN Sustainable Development Goal 16 (SDG 16), which aims to promote peaceful and inclusive societies with an emphasis on the rule of law, providing access to justice for all and building effective and inclusive institutions. It was chaired by the Director-General of the International Development Law Organisation (IDLO), Jan Beagle.

The Forum also stemmed from the report of UN Secretary-General, António Guterres, ‘Our Common Agenda’, in which he stressed the need for a renewed social contract between governments and their people, and within societies, indicating that justice is essential for rebuilding trust and embracing a comprehensive vision of human rights.

The IBAHRI organised and hosted two side events to the Forum:

• 16 November: ‘Military jurisdiction over gross human rights violations and access to justice for victims – Perspectives from Latin America’. This session aimed to identify and share ideas, lessons learnt and areas of best practice in order to overcome military jurisdiction over alleged gross human rights violations, and to ensure the competency of the ordinary criminal justice system to investigate, prosecute and punish such cases. Speakers explored legal avenues and advocacy initiatives to protect and promote access to justice for victims in contexts including: the situation in Brazil following the introduction of Law 13,491/2017, which expands military jurisdiction by amending the Military Penal Code definition of ‘military crimes in peacetime', as well as the journey to the 2014 reforms in Mexico, and the Inter-American system of human rights case law; and
• 17 November: ‘The Erosion of the Rule of Law, Democracy and Institutional Checks and Balances – Turkey, A Case Study’. This discussion focused on the arbitrary arrest and unfair trial of activist and philanthropist Osman Kavala, detained four years ago on charges connected to the Gezi Park protests. The event aimed to stimulate dialogue around the key obstacles to justice, the chilling effect of this ruling on civil society and the broader impact of this emblematic case on the rule of law as a whole. Speakers contextualised the role of the shrinking civic space in Turkey and discussed pathways to justice for Mr Kavala. The event was moderated by IBAHRI Director, Baroness Helena Kennedy QC, who also spoke about the IBAHRI’s trial observation of this case.

During the Forum’s panel sessions, the IBAHRI made oral interventions that:

• Encouraged the UN to mainstream the protection of lawyers and legal professionals in their agenda of work by systematically and thoroughly referring to the UN Basic Principles on the Independence of the Judiciary, the UN Basic Principles on the Role of Lawyers, and the UN Guidelines on the Role of Prosecutors. The IBAHRI also recommended the UN Member States make strategic use of the UN Rule of Law Indicators as a tool that can concretely support SDG 16;
• Emphasised that access to justice can safeguard participation by protecting democratic space, including by protecting the right to freedom of expression, including media freedom and access to information; the right of peaceful assembly and association; ensuring accountability for human rights violations; and nurturing an enabling environment for civil society and the media to operate without harassment or interference;
• Highlighted the challenge that military jurisdiction over gross human rights violations poses to access to justice for victims. The IBAHRI noted that too often, military justice systems have jurisdiction to investigate, prosecute and punish military personnel who have committed such crimes. The IBAHRI called on states to ensure that ordinary criminal justice systems consider such cases, in line with international human rights standards, and to elevate this issue within the UN agenda given its impact on, and inter-connection with, protecting and promoting human rights, upholding the rule of law and achieving SDG 16; and
• Denounced sexual and gender-based violence, highlighting the fact that such crimes, whether perpetrated by state or non-state actors, continue to flourish with impunity and have been exacerbated by the ongoing COVID-19 pandemic.

Key takeaways from the third session of the UN Forum on Human Rights, Democracy and the Rule of Law include:

• States and participants agreed that equal access to justice is the foundation of governance systems based on human rights, democracy, the rule of law and that it is also crucial for sustainable development;
• That access to justice is critical in ensuring the full enjoyment of human rights by everyone and to combatting social and economic marginalisation. Conversely, the lack of access to justice limits the ability of people to have their voices heard, hold decision-makers accountable, challenge discrimination and seek remedy for crimes and human rights violations and abuses;
• Consideration should be given to measures necessary to guarantee that people are placed at the centre of justice systems, ensuring that they can equally and effectively participate, directly or indirectly, in legal proceedings;
• How the COVID-19 pandemic illustrated the ways in which public emergencies exert great pressure on human rights, democracy and the rule of law. It was stressed that justice systems must continue to perform their critical judicial oversight role, ensuring that all emergency measures adopted to face the crisis are anchored in human rights and the rule of law; and
• Exchanges on best practices, challenges, and opportunities related to effective justice systems and the ways in which human rights-oriented systems can correct, rather than perpetuate, injustices and inequalities.

IBAHRI Vice Chair, Mark Stephens CBE, moderated a panel on access to justice in times of crisis and emergencies, at the end of which he emphasised some key takeaways, including the need to identify less obvious stakeholders; to build on the pandemic experience; to plan in advance in case of future emergencies; to better prevent delays and ensure a more robust response in the administration of justice. He emphasised the need to ensure that planning takes into consideration vulnerable and marginalised sectors of society and, in line with the central promise of the 2030 Agenda for Sustainable Development to ‘leave no one behind’, is fully human rights compliant.

ENDS