Human rights news from the IBA - October/November 2017


Former US Secretary of Defense Robert Gates on President Trump, North Korea and Kim Jong-un

The first time Former Secretary of Defense Robert (Bob) Gates critiqued President Donald Trump, the President tweeted that Gates’s tenure under his two predecessors – Barack Obama and George W Bush – was a ‘disaster’. Since more objective observers have described Gates as ‘perhaps the most successful defense secretary in United States history,’ readers may be keen to hear Gates’s take on this President’s brinkmanship in Asia.

Speaking exclusively to Global Insight, Gates didn’t pull any punches. While calling on Trump to show more caution in his rhetoric, and more loyalty to his allies, the Secretary also praised the President’s advisors and welcomed America’s new approach towards China.

‘When you have a very delicate situation like we have with North Korea,’ warned Gates, ‘people need to be very careful about the rhetoric that they use, because we don’t understand them very well, and they don’t understand us very well. So the potential for misunderstanding is very real… You certainly don’t want to send any spontaneous messages that have not been carefully thought through.’

In particular, Gates said, ‘I think walking away from the Trans-Pacific Partnership (TPP) was a huge mistake, and a huge gift to the Chinese. I think the rhetoric going after our allies in South Korea and Japan and initially in the North Atlantic Treaty Organization (NATO), the initial reluctance to reaffirm the Article V commitment of the NATO charter, I think all of those things were problematic.’

Regarding President Trump’s incendiary vow to meet North Korea with fire and fury, like the President’s advisors, Gates does his best to downplay it. ‘He was basically saying that, if North Korea attacked the US or one of our allies, there would be a military retaliation,’ Gates suggested, ‘which is essentially the same thing in different words that Secretary [of Defense James] Mattis has said, as well as Secretary [of State Rex] Tillerson.’

That fire and fury would only follow from an attack is a debatable interpretation of Trump’s full comment: ‘North Korea best not make any more threats to the United States. They will be met with fire and fury’. Interestingly, though, it is consistent with the President’s more vetted remarks at the United Nations, which was made after Global Insight's interview with Secretary Gates: ‘[I]f it is forced to defend itself or its allies, we will have no choice but to totally destroy North Korea.’

With North Korea, people need to be very careful about the rhetoric that they use, because we don’t understand them very well, and they don’t understand us very well

Bob Gates
Former US Secretary of Defense under Bush and Obama

Either way, it’s hard to spin the President’s tweet that ‘Talking is not the answer!’ Gates’ view is that talking ‘is the only alternative to conflict,’ and so ‘it’s central to the solution’. Unfortunately, the President has named neither an ambassador to Seoul, nor an Assistant Secretary of State for East Asian and Pacific Affairs. Gates went out of his way to defend President Trump’s top diplomat from the chatter that he has too little power. While conceding that ‘having different messages come out between the Secretaries and the President obviously complicates things,’ Gates insisted that ‘Secretary Tillerson has a very good relationship with the President, they see each other regularly, they talk to each other regularly.’ In North Korea, as elsewhere, this ‘is a Secretary of State who’s not cut from the usual pattern and prefers to do a lot of what he does behind the scenes’.

At the same time, Gates defended Mattis from the suggestion that he has too much power. ‘I obviously believe very strongly in civilian control of the military and I would tell you this,’ said Gates. ‘I’ve known a lot of senior officers. And if we were going to make an exception to that rule and have the first former general as Secretary of Defense since George Marshall in the late 1940s, then Jim Mattis is the guy I would choose.’

As a matter of strategy, Gates welcomes the idea of pushing China to press North Korea economically. ‘We’re dealing with the reality that a quarter-century of US policy toward North Korea has failed,’ he said. ‘So maybe some stronger language that is intended to communicate’ to China that we won’t let the status quo continue is ‘the right way to go’.

China finds itself in a vexing position. It’s ‘trying to walk a very fine line between putting additional pressure on the North without bringing about collapse,’ Gates explained. ‘The one thing that worries China more than a nuclear-armed North Korea is a North Korean regime that collapses -- sending millions of refugees across the border into China but also potentially lead[ing] to a reunified Korean peninsula under the auspices of a US ally,’ and sparking a nuclear proliferation crisis. ‘We underestimate how difficult the relationship between China and North Korea is right now. Kim Jong-un has never been to Beijing. [Xi Jinping] has never been to Pyongyang. I think that, in some ways, the nuclear test was as much a gesture of scorn and an attempt to embarrass President Xi as it was to send a message to the West.’ And yet, despite all of these concerns, Gates noted, China has adopted new sanctions – and, perhaps more importantly, instructed its banks to close North Korean accounts.

Gates credited President Trump for being in touch with President Xi on a regular basis and managing America’s vital relationship with China ‘pretty well’. But he hastened to add that ‘walking away from the TPP was a huge mistake, and a huge gift to the Chinese.’ ‘I think it’s a mixed record,’ Gates said of President Trump’s performance, in both Chinese policy and foreign policy generally.

IBA Discussion Paper on protecting the integrity of ICC trials

In accordance with its mandate to monitor issues of fairness and equality of arms at international criminal courts and tribunals, the IBA’s International Criminal Court & International Criminal Law (ICC & ICL) Programme has been closely monitoring developments of the interpretation and application of Article 70 at the ICC.

‘Offences against the administration of justice and fair trial considerations before the International Criminal Court’ is the latest Discussion Paper from the IBA’s ICC & ICL Programme. This Discussion Paper seeks to provide the basis for a policy-level discussion on how the International Criminal Court (ICC) implements its jurisdiction over ‘offences against the administration of justice’, as defined in Article 70 of the Rome Statute.

Based on a review of the public record of relevant cases, consultations with ICC practitioners and comparative analysis of practices at other international criminal tribunals, the IBA offers this Discussion Paper as an opportunity to review and encourage discussion on some of the jurisprudence and procedures that have developed for Article 70. Article 70 criminalises behaviour that seriously undermines proceedings, including witness interference in the form of intimidation, corruption and threats. As such, the ability to investigate and prosecute offences against the administration of justice is an important provision to protect the integrity of ICC trials.

Taking a comparative perspective, the Discussion Paper examines the legal framework for Article 70 proceedings at the ICC, and highlights procedural issues that have an impact on the fairness of proceedings. It examines in detail two Article 70 investigations arising out of ICC trial proceedings, in the Bemba and Ntaganda cases, with attention to the role of the prosecution in the Article 70 investigation, and the management of Article 70 investigations by the pre-trial and trial chambers.

The Discussion Paper also looks at how the use of ex parte proceedings and access to the communications of the accused impact the rights of the accused. The Discussion Paper explores future considerations for Article 70 proceedings through the lens of fair trials, and provides recommendations for strengthening current practices.

Read the full report

The refugee crisis in Greece – new IBA film

The IBA has released a new film focusing on the refugee crisis in Greece, particularly on the island of Lesvos. IBA Global Insight hears from some of the people involved in assisting refugees, representing legal, humanitarian and media organisations including: Advocates Abroad, Médicins san Frontières and the Office of the United Nations High Commissioner for Refugees.

As the film outlines, the main challenges for the refugee population currently stranded on Lesvos are that the living conditions are poor, and those trying to navigate asylum procedures face serious problems. Hurdles include a lack of access to legal aid, inconsistencies in the laws regulating the situation, language barriers and impossible deadlines for appeal.

Experts from the region comment on the constantly changing legal framework, and how it is lowering the trust refugees place in the system when there is no clear vision of how long they will remain in the camps. ‘They’ve gone through war, they’ve seen their families being killed, they’ve run away, they’ve walked for days and months sometimes, they’ve gone through the sea and almost died there... They’re not going to stop in Greece.’

Watch the film

CJEU rules against challenge to European quota system for refugees


The Court of Justice of the European Union (CJEU) has dismissed appeals by Slovakia and Hungary for an annulment of the EU Council’s relocation quotas, introduced in September 2015. The ruling ‘reinforces the legitimacy of relocating [refugees] within the European Union,’ argues Karl Waheed, an immigration lawyer at Karl Waheed Avocats and Vice-Chair of the IBA Immigration and Nationality Law Committee.

Slovakia and Hungary had appealed against the controversial relocation quota system, which was brought in to respond to the unprecedented levels of refugees arriving in Greece and Italy that year following an escalation of the civil war in Syria, as well as ongoing instability in Libya. The mechanism aimed to impose the relocation of tens of thousands of refugees across all EU member states, spreading the burden.

The CJEU decision gives support to the Council’s policy because relocation was found to be ‘not a measure manifestly inappropriate for contributing to achieving its objective’ (the objective being to assist Greece and Italy following the huge wave of migration at the time).

Through the quota system, Hungary had been allocated 1,294 refugees but so far has accepted none; Slovakia was allocated 902 and has taken in 16. The European Commission (EC) now has both court backing and good reason to force these two countries to ‘live up to their obligations,’ says Ska Keller, the European Parliament’s Rapporteur for Relocation Decisions. There is, however, a lack of certainty about whether the EC will actually choose to enforce relocation quotas in the light of ongoing tensions across the EU.

If the rule of law still has any currency in Europe at all, then Slovakia and Hungary are bound to follow the ruling

Karl Waheed
Immigration lawyer, Karl Waheed Avocats; Vice-Chair, IBA Immigration and Nationality Law Committee

As Susan Fratzke of the Migration Policy Institute explains, ‘there may well be a desire to take a stand against member states not following Council decisions. But how easy is it, in practical terms, to get them to actually take in the refugees? And, politically, does the EC want to pick a fight with two member states at a time of fragility within the EU? The EC may just want to quietly let the issue drop.’

Slovakia and Hungary were among four countries that voted against the quota system (the other two were the Czech Republic and Poland), arguing it was unfair. Waheed says the vote against the relocation quotas was more as a result of these states’ own internal political dynamics: ‘Hungary sees itself as defending European and Christian civilisation. Prime Minister Orbán is facing a re-election this autumn, which may be encouraging him to double down on his refusal.’

Fratzke agrees: ‘immigration is a very contentious issue, and there is this rising dynamic of populism in these countries, which the leaders are appealing to’. However, the stance of Slovakia and Hungary is also a sign of increasing tensions within the EU. ‘The refugee crisis is really a foil for asserting Hungary or Slovakia’s independence over the EU,’ adds Fratzke.

As Hungary’s Foreign Minister Péter Szijjartó put it when he commented to the press, ‘[the CJEU decision] practically legitimises the power of the EU above the member states. This is unacceptable in all terms.’ On the one hand, therefore, the CJEU decision on relocating refugees appears to back the EU Council’s authority and, as Waheed puts it, ‘reinforces their decision-making authority, even in the face of a lack of unanimity’.

On the other, it shows how fractured member states’ allegiances are becoming. Waheed concludes: ‘if the rule of law still has any currency in Europe at all, then Slovakia and Hungary are bound to follow the ruling of the CJEU. If they do not, then we have a deeper political crisis of the EU on our hands.’

EU refugee relocation – is the system delivering?

The relocation system is a radical mechanism for tackling migration because it tries to share responsibility for asylum-seekers among all EU countries. The number of refugees apportioned to each country is decided in accordance with a formula based on the country’s gross domestic product, population, number of previous asylum applications and unemployment rates.

But, the system does not appear to be delivering on its promises: originally, the EU Council proposed that the quotas would relocate 160,000 refugees by a two-year deadline. However, statistics show that only around 8,000 have been relocated from Italy, with 28,000 anticipated to be relocated, according to the EC. The numbers for Greece are 20,000 already relocated, with another 40,000 anticipated. There are, of course, any number of other outcomes at play. For instance, asylum-seekers may find that they do not have legal refugee status and so their applications are refused, others may have found asylum in Italy. There is also ongoing smuggling to different countries.

In addition, there appears to be considerable secondary movement of refugees, which undermines the usefulness of introducing a relocation system. Secondary movement occurs where refugees move of their own accord from countries into which they have been relocated to countries where they believe they will be more welcome, and find better job prospects and established social networks.

IBAHRI at 36th Session of the UN Human Rights Council

In September, the IBAHRI delivered a series of statements at the 36th Session the United Nations Human Rights Council. The statements were made as part of the IBAHRI’s United Nations programme, which aims to inform and foster lawyers’ engagement in UN mechanisms and strengthen the dialogue between states and the legal community on human rights through these mechanisms.

In a statement delivered with Lawyers’ Rights Watch Canada (LRWC) as part of an interactive dialogue with the Fact-Finding Mission on Myanmar, the IBAHRI called upon all states ‘to use their full diplomatic capabilities to urge the government of Myanmar to immediately stop the violence, allow access for all necessary humanitarian aid, and cooperate fully with the Mission’.

During the Universal Periodic Review (UPR) on South Africa, the IBAHRI, the Southern Africa Litigation Centre and the Law Society of South Africa reminded South Africa that its involvement in the demise of the Southern African Development Community (SADC) Tribunal and proposals for an African criminal court which exempts heads of state and senior officials from prosecution, run counter to the country’s duty to guarantee equal access to justice and fair trial for all. Further, the statement made a series of recommendations on how South Africa should counter xenophobic tensions in the country.

Finally, in a statement as part of Poland’s UPR, the IBAHRI highlighted threats which proposed justice system reform in Poland pose to the rule of law in the country. The IBAHRI urged the Polish parliament not to adopt the National Judicial Council Act nor the Supreme Court Act which would result in members of the National Judicial Council being appointed by the Parliament and would end the tenure of all judges sitting currently in the Supreme Court, except for those indicated by the President of Poland. The IBAHRI further urged Poland to refrain from justice system reforms that threaten the essential democratic principles of judicial independence, the separation of power and the rule of law.

Find out more about the IBAHRI’s UN Programme

ICC winner of 2017 Stockholm Award

The International Criminal Court is the recipient of the 2017 Stockholm Human Rights Award for its work to advance international justice and strengthen respect for human rights, its commitment to the fight against impunity for atrocity crimes that threaten the peace, security and wellbeing of the world and for the critical role it plays in fostering the international rule of law.

The Award is bestowed annually by the Swedish Bar Association, the IBA and the International Legal Assistance Consortium. ICC President, Judge Silvia Fernández de Gurmendi, the Prosecutor, Fatou Bensouda, and Registrar, Herman von Hebel, will receive the Award on behalf of the Court in November.

Read more

Focus on Philippines and Cameroon

Amid reports of threatening remarks by the President to shoot human rights officials and kill judges and lawyers whom he perceives to be conspiring with drug offenders, the IBAHRI has called on President Rodrigo Duterte of the Philippines to respect and uphold the independence of the legal profession. President Duterte has been vociferous in his criticism of judges and lawyers, and recently has publicly displayed an updated ‘narco-list’ that includes lawmakers, judges and uniformed personnel suspected of being involved in the drug trade in the country.

Further, the IBAHRI has condemned the extrajudicial killings associated with the President Duterte’s ‘war on drugs’, and urged him to ensure due process of law and protect the human rights of all in the Philippines.

Read more on the Philippines

Also, the IBAHRI welcomes the order by President Paul Biya of Cameroon to end court proceedings against Barrister Felix Agbor-Balla, announced by Cameroon’s authorities in a recent statement, and continues to denounce the use of military courts to try any civilians. Barrister Agbor-Balla was arrested in January for his involvement in protests and strikes by anglophone lawyers and teachers in West Cameroon. His trial was due to be held before a military tribunal, in breach of international standards for due process.

Read more on Cameroon