LexisNexis

Human rights news from the IBA - Dec 2016/Jan 2017

Trump election thrusts human rights issues into the spotlight

Ruth Green

The recent election of Donald Trump as 45th President of the United States has reignited concerns over the President-elect’s inflammatory statements throughout the election campaign and the potentially damaging implications of a Trump Administration for human rights in the US and around world.

Human rights advocates across the globe, including Prince Zeid Ra’ad
al-Hussein, the UN High Commissioner for Human Rights, have already voiced fears over many of the comments made by the President-elect throughout the campaign, including advocating the use of torture, the deportation of undocumented immigrants and a ban on Muslims from entering the country.

The IBAHRI will be addressing these and other human rights concerns in an open letter to the President-elect. Baroness Helena Kennedy QC, Co-Chair of the IBAHRI, says that many of Trump’s comments to date have been deeply concerning. ‘I share the concerns of many colleagues in the law that Donald Trump seems to have a loose hold on what observance of the rule of law means,’ she told Global Insight. ‘His attack on the impartiality of a judge of Mexican heritage was a shameful display of disrespect for the separation of powers and the independence of the judiciary. He intends to appoint a judge to the Supreme Court who is opposed to women’s freedom of choice, a right which is fundamental to reproductive freedom and a woman’s autonomy. His whole discourse on women suggests a man who does not respect the human rights of women, which should be a source of alarm. His denial of climate change and its impact on the lives of the poor of the world, as well as future generations in the advanced world, is a display of wilful ignorance which should be frightening to those who understand that one of law’s purposes is to regulate human relations in just ways.’

Kennedy says Trump’s views on immigration and torture were particularly distressing. ‘His rhetoric on excluding Muslims, repatriating millions of Mexicans, restoring torture and expanding its use, as well as his endorsement of the use of Guantánamo, all point to a man who seems to have little respect for human rights at large.’

During the IBA Annual Conference in Washington, DC, Professor David Scheffer, who served as US Ambassador-at-Large for War Crimes Issues from 1997–2001, told Global Insightthat if Trump stays true to his word on torture then he would be held up to scrutiny on the world stage. ‘When a presidential candidate like Donald Trump says blatantly “Let’s start up the torture machine again, let’s keep it running through Guantánamo, let’s do worse than waterboarding”, well then I think you will need to be scrutinised if those are your instructions to the US military and others,’ he said.

‘‘One would hope that he would understand that part of the world’s reaction to the US interventionism after 9/11 was very much coloured by this issue of torture

David Scheffer
US Ambassador-at-Large for War Crimes Issues from 1997–2001

‘The United States should not be endorsing, condoning or acquiescing in the commission of atrocity crimes by US officials – I don’t know how you could rationalise that,’ he added. ‘If you follow through on that... then I’m not going to sit here and say you should be immunised from investigation – I think you should be investigated.’

During the conference Juan Méndez, who recently stepped down from his second term as UN Special Rapporteur on Torture, criticised the way the US presidential campaign had perpetuated misconceptions about the efficacy of torture. ‘The public discourse not only in the US – but in the US especially because of the presidential campaign – tends to persuade the public that perhaps torture is inevitable, that perhaps somebody has to do it and that it may be ugly but it keeps us safe,’ he said. ‘Fighting against that weakening consensus of the moral condemnation of torture is perhaps our greatest challenge.’

Méndez also warned that overlooking torture tactics ran the risk of undermining the rule of law. ‘If governments look the other way when some of their agents use torture, they create a cascade of illegality and of corruption and of the public losing trust in their institutions,’ he said. ‘The public may fear their institutions but they won’t trust them, so the lack of trust also makes the work of the law enforcement institutions and of the justice institutions harder rather than easier.’

Speaking on the morning of the election result, Scheffer told Global Insightthat he hoped Trump would take a more considered view than he had on the campaign trail. ‘I just hope that good reason prevails over his more acerbic rhetoric during the campaign,’ he said. ’We will just have to see how this bears out but I think the signal that he has to send is that he’s not radically trying to change America’s commitment to our Constitutional values and to our international legal obligations, particularly on the issue of torture. One would hope that he would understand that part of the world’s reaction to the US interventionism after 9/11 was very much coloured by this issue of torture. So to be consistent with his criticism of the George W Bush Administration I would think that he would want to take a second look at the issue of torture and whether or not we have more to gain or to lose by employing those instruments.’

Scheffer remains sceptical of how committed a Trump Administration would be towards protecting foreign populations at risk: ‘I do think that a Trump Administration would give very short attention to atrocity prevention, to the responsibility to protect – I think that’s the one thing that’s particularly at risk – a proactive view by the US to intervening, whether through military or non-military means, to protect foreign populations at severe risk of genocide, crimes against humanity and war crimes,’ he said.

Other global powers, however, could help convince the President-elect of the need for the US to strengthen relations with the international community, he said. ‘He’s a man who sees things in gains and losses and I think the argument needs to be made that there’s a tremendous amount to gain from being part of the international community and of understanding the benefits that international law accrues for the US in its relationships globally,’ said Scheffer. ‘My hope is that foreign leaders could act with some degree of unity in pressing upon Mr Trump and his administration the benefit of international cooperation, international law and how it benefits the US in particular and the interests of the US overseas.’


New report finds UN human rights mechanism the most progressive international arena for furthering LGBTI rights

Left to right: Dianela Pi Cedrés, Deputy Permanent Representative, Uruguay; Michael van Gelderen, Human Rights Officer, OHCHR; Dr Phillip Tahmindjis, IBAHRI Director; Nada Chaiyajit, LGBTI Representative, Thai CSO Coalition for the UPR; Henry Koh, Malaysia Human Rights Specialist, Fortify Rights.

A new report has found that the most progressive arena for the protection of human rights of lesbian, gay, bisexual, trans and intersex (LGBTI) persons at international level to be the Universal Periodic Review (UPR) of the United Nations Human Rights Council – a peer-review mechanism for the human rights records of all 193 UN Member States.

Launched in Geneva on 9 November by the IBAHRI in collaboration with ARC International and the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), Sexual Orientation, Gender Identity and Expression, and Sex Characteristics at the Universal Periodic Review finds, among other things, that:

  • Over eight years, 46,584 recommendations have been made at the UPR. Of these, 1,110 were specific to sexual orientation, gender identity and expression, and sex characteristics (SOGIESC) and were made to 158 states under review from all regions.
  • Of the 1,110 SOGIESC recommendations received, 413 (37 per cent) have been accepted and 697 noted. However, this rate is relatively low in comparison to the overall acceptance rate of UPR recommendations, which is 74 per cent.
  • Forty per cent of the recommendations that called for adopting anti-discrimination laws protecting LGBTI persons have been accepted.

In addition to providing an overview of the role played by the UPR and the key challenges of the process of shaping the protection of LGBTI rights, the report includes recommendations specific to the different stakeholders: states under review, recommending states, civil society, lawyers and legal associations. Examples of these recommendations include:

  • To ensure that LGBTI and SOGIESC human rights defenders are not subject to reprisals;
  • To further systematically address the need for states to monitor and collect data on discrimination and violence against LGBTI persons;
  • To ask for training of key stakeholders on SOGIESC issues, such as legal and health professionals;
  • To assist in training communities, law enforcement officers, judges and members of the government on the principles of universality, equality and non-discrimination; and
  • To foster legal debate on the legal protection of LGBTI persons, taking into account international norms and recommendations.

IBAHRI Co-Chair, Ambassador (ret.) Hans Corell commented: ‘This new report is extremely useful for analysing the protection of the rights of LGBTI persons internationally. It is now imperative that we recognise and promote the legal basis of the UPR recommendations to help them gain greater traction and credibility in the international sphere.’

The full report Sexual Orientation, Gender Identity and Expression and Sex Characteristics at the Universal Periodic Reviewcan be downloaded at tinyurl.com/SOGIESC2016.


eyeWitness wins security award and is listed as a top tech solution for Africa

The eyeWitness to Atrocities app has won the Geneva Centre for Security Policy (GCSP) Prize for Innovation in Global Security. The award was established to ‘recognise deserving individuals or organisations that have an innovative approach to addressing international security challenges’ and that demonstrate ‘excellence in new ideas.’ Only the second to be awarded, the prize was presented to eyeWitness Project Director Wendy Betts during a ceremony held in Geneva, Switzerland on 17 November 2016.

In addition, ahead of the 2017 Aid and Development Africa Summit, the eyeWitness to Atrocities app has been acclaimed as one of the top 15 technology solutions transforming the second largest continent in the world – Africa. The list, compiled by the Aid and International Development Forum (AIDF), is comprised of what it describes as ‘game-changing technological solutions supporting humanitarian relief and development aid’. The eyeWitness project was commended on its ability to tackle the challenge of verifying photos and videos to help support accountability efforts in the region.

Read more at tinyurl.com/eyeWitnessAIDF. Visit the AIDF website at tinyurl.com/AIDFtech for the full list of recognised technologies.


Refugee crisis accounts for huge spike in pro bono legal activity

Diana Bentley

The emergence of a highly active pro bono sector is among the most notable – and edifying – developments in legal practice over the last two decades. Increasing numbers of commercial lawyers, it appears, are seeking ways to apply their skills to the provision of life-changing support for those most in need. Within the last year, the international refugee crisis has provided significant additional impetus for pro bono work.

Lawyers undertaking pro bono work are generally motivated by the conviction that justice should be available to those who cannot afford their own legal representation. Now, other factors are also driving pro bono work. ‘It’s a big issue in recruitment now and with clients,’ reports Peter King, a partner of Weil, Gotshal & Manges’ London office and Chair of the IBA’s Pro Bono Committee. ‘Young lawyers want to do some work they feel especially good about and our commercial clients expect us to do pro bono work too.’

Potential recruits and clients are now likely to scrutinise the ranking reports that cover the area and pay attention to the many legal award ceremonies, which include recognition of pro bono contributions and the broader area of corporate social responsibility among commercial law firms and their fee earners.

The international expansion of American law firms has had a significant influence on the development of pro bono legal culture in the UK and elsewhere. ‘Around the early 2000s, big firms started getting skilled staff to help them establish and manage pro-bono programmes and they’re now commonplace,’ says King. ‘The pro bono culture in the UK and the US is strong and those jurisdictions have the infrastructure to support it. This is also true in places like Australia and now in more countries in South America. In Continental Europe and Asia, the profession has not been so quick to develop the practice.’

However, the area is still evolving, with marked changes in pro bono work internationally. Large increases in the pro bono hours worked in firms in Asia are now apparent and significant increases in South Africa and China are being reported.

‘‘It’s useful for firms to collaborate with other interest groups, like NGOs, working in a chosen area of work and which are close to the ground and understand the real issues

Odette Geldenhuys
Senior Associate, Pro Bono Practice, Webber Wentzel,
South Africa and IBA Pro Bono Award 2016 winner

In September 2016, Odette Geldenhuys, Senior Associate in the Pro Bono Practice of Webber Wentzel of South Africa and founder of ProBono.Org, was named the recipient of the IBA Pro Bono Award. She received the award at the Association’s Annual Conference, in Washington, DC. ‘The legal profession of a country must be established and profitable for the pro bono sector to develop,’ she says. ‘It can’t emerge when lawyers themselves are struggling to survive. Certainly now in Africa, lawyers in more countries are talking about it.’

While the range of pro bono projects is considerable, firms usually have a common aim. ‘Most firms want to make a real difference with their pro bono work in some way,‘ says King. The most recent and clear evidence of this is found in the Thomson Reuters Foundation 2016 TrustLaw Index of Pro Bono, which reported that the international refugee crisis has caused a major spur in pro bono activity over the past year. Like others, King’s own firm assesses the likely impact of possible projects carefully. ‘We provide a lot of free work to NGOs and charities so they have more funds available for their work.’

Firms also want to ensure that their lawyers have the right opportunities. ‘Every lawyer in our firm undertakes a pro bono matter each year and partners must supervise at least one project,’ says King. ‘We want lawyers to be able to follow their real interests too so we try not to be very prescriptive about projects, otherwise it’s just another job for people.’

All firms need to find the best way for them to manage pro bono projects based on their culture and resources. Geldenhuys’s firm, for example, rotates their trainee lawyers through a dedicated pro bono unit, but she points out that their more senior lawyers undertake pro bono work too.

King and Geldenhuys also warn that firms must carefully monitor their pro bono work. ‘Firms should examine their own capabilities when assessing pro bono projects,’ says King. ‘They can think that pro bono work isn’t as important as their ordinary work and may not supervise it properly. But you must give pro bono work the same degree of care as any other job. If a project involves work with which you’re not familiar, collaborate with someone who has the required expertise. Firms should also try and manage the work so that it fits in with its other work as well as possible and it’s not detached.’

Geldenhuys urges firms to align their pro bono work to their practices as well as possible. Ideally, she says, it should form part of a wider strategy for social change. ‘It’s useful for firms to collaborate with other interest groups, like NGOs, working in a chosen area of work and which are close to the ground and understand the real issues,’ she says.

Clearing houses have now emerged and provide useful services matching clients with lawyers. In England and Wales, LawWorks connects volunteer lawyers with people in need, as does ProBono.Org in South Africa. Advocates for International Development (A4ID) partners those working in development with firms around the world.

King also notes that firms are increasingly collaborating with clients on pro bono projects and with other firms. ‘On one project we’re working with the client’s in-house lawyers who want to do more pro bono work and we can help them achieve that aim so this kind of thing is a very positive development,’ he says.


Mary Robinson (left) receives the 2016 Stockholm Human Rights Award from Anne Ramberg of the Swedish Bar Association.

Mary Robinson receives 2016 Stockholm Human Rights Award

The 2016 Stockholm Human Rights Award has been presented to Mary Robinson, the United Nations High Commissioner for Human Rights from 1997 to 2002, in recognition of her work in the pursuit of advancing international justice and strengthening respect for human rights. The Award ceremony took place in Stockholm on 23 November.

A frank and wide-ranging interview with IBA Executive Director Mark Ellis followed her acceptance speech, in which Robinson commented on her core beliefs about human rights, climate change justice, the recent results of the United Kingdom referendum on whether to remain within or exit the European Union and the election of the next President of the United States.

During the interview Robinson observed and warned: 'There is a bit of fear, which has been whipped up by populism – the populist Trump, the populist Brexit... We need to get back to a reality based on facts and evidence... The EU must remember its real values, which were not argued in Brexit... We are in a bleak time of populism but we will get back to our values, and we must do it quickly.'

Mary Robinson, the seventh – and first female – President of Ireland, held office between 1990 and 1997. She is widely regarded as having been a transformative figure for Ireland and is credited with revitalising and liberalising the Presidency. Upon taking up post at the UN in 1997 she was given the mandate to set the human rights agenda within the organisation and internationally.

Presently, as President of the Mary Robinson Foundation – Climate Justice, Robinson staunchly advocates for global justice for people most vulnerable to the impacts of climate change: the poor, the disempowered and the marginalised across the world. She lectures tirelessly on the topic, travels the globe to engage with all who are concerned for global justice, and calls constantly and persuasively on world leaders for swift, far-reaching and ambitious climate action. The impact of climate change on people and their rights – to food, safe water, health, education and shelter – is what drives her work.

As UN Secretary-General’s Special Envoy for Climate Change, Mary Robinson wrote the foreword for the report of the IBA Presidential Task Force on Climate Change Justice and Human Rights. Entitled Achieving Justice and Human Rights in an Era of Climate Disruption, the report can be downloaded from the IBA website.


Update on two previous IBAHRI Human Rights Award recipients

Prominent human rights lawyers Abdolfattah Soltani and Intigam Aliyev were both political prisoners in their home countries when they were awarded the IBAHRI Human Rights Award, in 2012 and 2015 respectively.

Fortunately, Aliyev was released in March 2016. However, with a five-year suspended sentence, the charges against him, including tax avoidance and illegal entrepreneurship, remain. Despite this, Aliyev remains committed to representing individuals in the face of human rights abuses, and even while in prison has continued to file cases before the European Court of Human Rights. The IBAHRI has called on all charges against Aliyev to be dropped.

By contrast, Soltani has remained in Evin Prison since his sentence began in March 2012. As a consequence of his legal work in defence of human rights, Soltani has faced persistent persecution from the Iranian government. In prison he has endured poor conditions and insufficient medical care, prompting him to go on hunger strike. In 2014 he was allegedly beaten and placed in solitary confinement when Iranian security guards stormed the prison. Whilst he was presented with an opportunity for release, he refused to sign the file application until he received a fair and unbiased trial, as signing would have equated to admission of guilt. He continues to suffer from poor health. The IBAHRI continues its call for his immediate and unconditional release.


IBA ICC & ICL Programme publishes report on evidence

The IBA International Criminal Court (ICC) and International Criminal Law (ICL) Programme has produced a new report entitled Evidence Matters in ICC Trials. In the report, the IBA addresses the existence and relevance of new types of evidence in trials before the ICC, and looks at current issues in the development of the Court’s procedural law for hearing and ruling on evidence.

The report is part of the thematic series IBA ICL Perspectives which presents the Programme’s views on developments in international criminal law that have a particular impact on fair trial standards.

This latest report considers how evidence matters are affected by other dynamics at the Court, including the overall project of making the ICC’s proceedings more efficient, and the roles played by judges and States Parties. This report provides an in-depth review and analysis of issues relating to: digital and technologically derived evidence; the use of prior recorded testimony as evidence; and assessments of evidence within trial proceedings through ICC Regulation 55 and ‘no case to answer’ proceedings. Taking a comparative perspective, the report brings in examples from the legal frameworks and jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda and the Special Tribunal for Lebanon. Each chapter also explores some future considerations for evidence matters through the lens of fair trial and equality of arms.

The report can be downloaded from the IBA website at www.ibanet.org