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The IBA’s response to the situation in Ukraine
Sternford Moyo is Senior Partner and Chairman of Scanlen & Holderness in Zimbabwe. He is former President of the Law Society of Zimbabwe and is the incoming IBA President for 2021-2022 – the first African to hold the position. In conversation with South African broadcaster Jane Dutton, he discusses the International Criminal Court, radical nationalism, human rights, extractive industries and plans for his presidency.
Jane Dutton: Congratulations on your appointment as IBA President. What are your plans for the presidency?
Sternford Moyo: I look forward to working with this strong and successful organisation. I'm going to be standing on a platform built by really competent leaders.
The IBA’s work to promote the rule of law, human rights and the effective administration of justice in many parts of the world will continue under my presidency.
The IBA is also embarking on an aggressive digitalisation programme and virtual conferences will continue after the pandemic. It will no longer be necessary for a lawyer to travel across the world to attend conferences in order to access knowledge. Lawyers at entry level in all parts of the world and lawyers from low-income jurisdictions, such as Africa, will be able to access this knowledge online. We will make sure that as many lawyers of the world as possible join international dialogue on legal matters, because the IBA holds itself out to be the global voice of the legal profession.
JD: You are very passionate about the International Criminal Court (ICC). Many Africans feel that Africa is unfairly targeted by the ICC. Is this true?
SM: I don’t think that is a fair criticism. When the Rome Statute opened for signatures, Africans heavily supported it. They did not treat it as a Western concept at that time.
If you look in particular at the first cases of the ICC, you’ll find that these went to the ICC at the invitation of the African governments themselves – only Sudan went through Chapter VII of the United Nations Charter.
The ICC was set up to benefit all countries. If we get more benefit than any other region, is that something for us to complain about? We should be celebrating.
In any event, one can render international criminal justice irrelevant to one's country by simply being willing and able to deal with violations of human rights within the country.
JD: How do you empower local justice systems so that they are able to take over, and, as you say, make the ICC irrelevant in those countries?
SM: There has to be a commitment to end impunity. If there is political will to end impunity and make offenders accountable, international criminal justice becomes irrelevant.
JD: How dangerous is radical nationalism in Africa and beyond?
SM: Nationalism can be a positive force – it is because of national pride that the people of Africa were able to achieve self-determination. But extreme nationalism can give rise to problems because nationalism has got to be tempered by commitment to international obligations. Where nationalism becomes extreme, it means that you are forced to reject concepts such as the responsibility to protect.
Extreme nationalism can also result in hate speech against those that do not belong to your nation, or those that do not belong to the same ethnic group as you.
It can end up giving rise to ethnic cleansing and to serious conflict within a country. It can give rise to failure to achieve your international obligations under international law.
The whole concept of the UN and equivalent regional treaties involves giving up some form of sovereignty in order to create a community of nations.
Governments have to be very careful when they listen to voices that preach extreme forms of nationalism and extreme forms of sovereignty. They have got to temper those.
JD: How much weight will you put behind the IBA climate justice campaign?
SM: This is an extremely important campaign by the current president of the IBA. Environmental rights are human rights.
You can see the devastation caused by climate change in many parts of the world, especially in the developing world and emerging economies.
The IBA is bringing the effects of climate change to the attention of governments and companies and trying to educate them on what they can do.
JD: What are the safeguarding mechanisms to mitigate any human rights violations in the extractive industries? And how do you also strengthen the governance landscape?
SM: While it is our duty as lawyers to protect the interests of our clients – the investors – we also have a duty to balance the interests of the investors against the interests of the communities where the investment takes place.
The IBA’s Model Mining Development Agreement project on this was very useful at the time that it was crafted in 2010. It is now time to have a new agreement, firstly to incorporate some of the ideas that have come up since and also to ensure that it is sufficiently wide so as to cover all the extractive industries.
Regarding the environment, most countries are now making it a criminal offence for directors of a company to allow the company to damage the environment and do nothing about it.
Already, the ‘polluter pays’ principle is widely applied in many jurisdictions, which is why you'll find that most mining companies are advised to incorporate provisions that, after mining, they will have to rehabilitate the environment to ensure that it is restored to its previous state as much as possible.
Before you can even start any process that breaks the ground, you really require an environmental impact assessment, identifying the possible damage to the environment and what you are going to do to address that possible damage.
JD: You're a commercial lawyer and you have got a pedigree career in human rights, fighting against abuses. How do you balance the two?
SM: I can say without any hesitation that you cannot be a good commercial lawyer unless you have an in-depth knowledge of human rights; unless you have a good understanding of the rights protected in the jurisdiction in which you operate.
You cannot be a good commercial lawyer unless you understand fully the reputational damage or the financial loss that your client may suffer as a result of violations of human rights.
JD: What lessons do we need to learn going into 2021?
SM: Unless you observe the rule of law, it is virtually impossible to grow anything. The starting point to creating stability, to creating progress, is to ensure that there is a climate of legality and to ensure that the legal profession and judiciary is robustly independent.
This is a heavily abridged version of a longer interview. The full version is available on the IBA website: ibanet.org.