Human rights news from the IBA - August/September 2017
Yola Verbruggen, IBA senior reporter
With tensions over North Korea’s nuclear threat escalating, international law and diplomacy is now at a critical juncture, Michael Kirby, Vice Chair of the IBA Human Rights Institute Council, has warned.
Speaking exclusively to Global Insight, Kirby says the international community has a legal obligation to address ‘two apparently inconsistent necessities’: human rights violations and the development of nuclear weapons under the rule of North Korea’s supreme leader Kim Jong-un.
‘We have to address the danger of not focusing on the problem that confronts us. That is what the Charter of the United Nations requires and therefore we don’t make our situation better by lamenting the difficulty of the challenge and hoping it will go away. It won’t,’ says Kirby.
Concern over North Korea’s nuclear programme has increased in the last few months, after a missile test in May signalled its advancing technology, followed by the country launching its first intercontinental ballistic missile in July.
In response to the recent tests, the United Nations Security Council expanded its sanctions against North Korea with approval from China as well as the United States – the two most powerful players in the Korean Peninsula. Jim Mattis, US Defence Secretary, has called North Korea the ‘most urgent and dangerous threat to peace and security’.
Commenting on discussions between the US and Russia during the recent G8 summit in Hamburg, Kirby says: ‘It may be that the discussions between President Putin and President Trump will reveal suggestions for a more peaceful approach that will yield greater dividends and take fewer risks.’
He adds that a military response is not the solution. ‘The one course which is not really available in the current state of the weaponry and of the vulnerability of populations in the region is the use of a military option. What has to be done is to consider what options short of military are available. The protection of people in South Korea but also in North Korea and Japan make it imperative that military talk should be avoided.
‘I believe that the wise and experienced diplomats in the US will be so warning the President, and that the President will follow that warning.
‘I think if the objective is to encourage North Korea to take steps to improve its human rights record and to reduce the temperature of the security risk then the path to that objective lies along the route of conversation, discussion and compromise.’
Kirby also sees a glimmer of hope in the strategy pursued by the new President of South Korea, Moon
Jae-in. The former human rights lawyer assumed his post in May and he has taken a different approach to North Korea than his predecessor, calling for engagement with their neighbours rather than isolation.
It would be a tragedy if the world went down the path of sleepwalking into a serious military conflict on the Korean Peninsula
Vice Chair, IBA Human Rights Institute Council
‘It is a good thing that he is aware of the desirability of reaching out. It would be a tragedy if the world went down the path of sleepwalking into a serious military conflict on the Korean Peninsula,’ says Kirby.
He holds back in assigning to China the leverage it is said to have over North Korea through its trade with the country. Earlier this year, North Korea’s state media lashed out at China after that government’s mouthpiece called for harsher sanctions in the event of another nuclear test.
‘At least potentially and theoretically, China could turn off the electricity supply in most of North Korea. What that would do and how that country would respond is a matter of uncertainty,’ adds Kirby.
Kirby – who chaired the UN Commission of Inquiry (COI) that found clear evidence of ongoing crimes against humanity in North Korea when it reported in 2014 – also outlines the extreme difficulties of demanding accountability for grave human rights violations in the country at a time of heightened nuclear tensions.
‘If we are to get accountability for the crimes against humanity found by the COI, that will demand accountability on the part of the leaders, including Kim Jong-un and the elite around him.’
In its 2014 report, the COI found many instances of human rights violations in North Korea, some of them crimes against humanity, for which the perpetrators should be held responsible. ‘If accountability is not given by the country concerned, the UN has adopted the principle that the international community must give accountability for crimes against humanity,’ say Kirby.
‘If it is to comply with international law, the international community must achieve at the one moment the surrender of nuclear capability and the defence of universal human rights of the citizens of [North Korea]. This is effectively requiring the international community to square the circle. This is difficult but it must be attempted. It is not admissible in international law, if there have been crimes against humanity, simply to turn away and to forget them or overlook them in the hope of getting a deal that will end the extremely dangerous situation presented by its nuclear capabilities.’
IBAHRI adopts Resolution on armed drone strikes
The proliferation of the use of drones by states and armed groups to deliver lethal force, and the complications this new development poses to the application of international law, has prompted the Council of the IBA Human Rights Institute (IBAHRI) to adopt a new Resolution on armed drones.
Lethal drone strikes are being used increasingly as a weapon of war and the legality of their use is commonly unknown. In the Resolution, adopted on 25 May 2017, the IBAHRI expresses concern about the:
- availability of drones that may spread armed conflict and encourage states to resort to lethal force and violate human rights;
- lack of clarity and transparency on the applicable legal framework governing drone strikes;
- undermining of effective legal oversight and accountability;
- secrecy surrounding the use of drones leading to the preclusion of appropriate investigations;
- psychological harm reported to be suffered by those living within the regions in which drones regularly operate; and
- lack of required infrastructure and/or access to the judicial system for victims of drone strikes to realise effective remedies.
The Resolution also states that the use of drones must adhere to current law governing the use of force, and that whether or not a drone strike occurs in the context of an armed conflict is crucial to assessing its lawfulness.
‘Drones provide a simple recourse to force that would otherwise have been impossible, and this gives them a uniquely destabilising capacity. As the practical barriers to the use of force fall down, it is vital that the legal barriers are reinforced and reasserted,’ states the Resolution.
For deeper understanding and analysis, an accompanying Background Paper to the Resolution sets out the legal framework applicable to the use of armed drones, inside and outside of armed conflict, by both state and non-state actors. It details the legal context in which the Resolution was adopted and highlights the importance of adhering to all applicable international legal rules governing the use of drones.
Resolutions adopted by the IBAHRI Council serve as a declaration of the Institute’s values and positioning regarding certain human rights matters. The Resolutions commit the IBAHRI to promoting and protecting these values through work and outreach.
‘The Resolution on the Use of Drones for the Delivery of Lethal Weapons’ and the accompanying Background Paper, are available at tinyurl.com/IBA-drones.
IBA-UN panel reaffirms torture as human rights violation
The damaging repercussions of torture and the fight against impunity were explored in a wide-ranging panel discussion co-hosted by the IBA and the United Nations Human Rights Office on 26 June. State responsibility, the role of the legal profession, moral and ethical considerations, reporting issues and rehabilitation of victims were among the issues examined at the event at King’s College London.
Held to mark the International Day in Support of Victims of Torture, the panel discussion featured Zeid Ra’ad Al Hussein, UN High Commissioner for Human Rights; Baroness Helena Kennedy QC, Co-Chair of the IBA Human Rights Institute; Juan Méndez, former UN Special Rapporteur on torture; Zimbabwean human rights lawyer, Beatrice Mtetwa; and Dr Mark Ellis, IBA Executive Director.
In a wide-ranging discussion, the panellists underlined, for example, the failure of many countries to abide by the UN Convention against Torture, the unreliability of torture practices, how it can damage the efforts of well-meaning and democratic institutions, and how fears in society can be used to persuade people that torture is justifiable.
To watch the panel discussion and find out more about the IBA-UN partnership that has been established, go to tinyurl.com/iba-un-torture.
Yemen: ‘Relentless violations’ of international humanitarian law continue as famine looms
Yola Verbruggen, IBA senior reporter
Just days before the United Nations Human Rights Council (UNHRC) convened in September last year, at least 31 civilians were killed in a Saudi-led coalition attack on a water drilling site in Yemen. Less than two weeks later, another 28 civilians died after an airstrike by the United States and United Kingdom-backed coalition on a densely populated residential neighbourhood in Hodeida. Damaged infrastructure continues to contribute to the severity of the cholera outbreak that, in less than three months, has infected over 350,000 people – a figure expected to double by the end of the year.
As air raids continued, High Commissioner for Human Rights Zeid Ra’ad Al Hussein addressed the UNHRC, calling for an international, independent investigation into violations of international humanitarian law committed by the warring parties. On one side, there are the Houthi forces that joined with those of Ali Abdullah Saleh, the ousted president who ruled Yemen for more than two decades, and on the other, the Saudi-led coalition that supports Saleh’s successor and former Vice-President, Abdrabbuh Mansur Hadi.
Initially, a resolution drafted by the Netherlands endorsed the High Commissioner’s request. But, it was withdrawn when it became clear the proposal enjoyed little support. Instead, Saudi Arabia would draft the resolution for investigations into its own conduct. The resolution authorised only a national investigation by the Yemeni government, which Saudi Arabia supports. The High Commissioner’s Office is now monitoring the investigation and will report its findings to the UNHRC in September.
‘Twice the UNHRC has not created a human rights independent investigative commission and instead has asked us to support the Yemeni efforts. Clearly, the support that I was hoping for in the context of the UNHRC at earlier stages wasn’t there. I hope it will be there this time,’ says Zeid.
Speaking to Global Insight, the High Commissioner called the ongoing ‘relentless violations’ of human rights by all parties to the conflict in Yemen ‘frightful’. ‘My office has long called for an international investigation into human rights violations and violations of international humanitarian law, committed by whomsoever. It’s the various governments concerned that took issue with us when we were citing the civilian casualties. An independent commission perhaps could convince them to change the course of the military operations and spare civilian life and protected sites from any further attack,’ says Zeid.
A Panel of Experts on Yemen, appointed in 2014, presented its findings to the Security Council early this year. The report says the coalition’s air campaign is ‘devastating to Yemeni infrastructure and civilians’ and it accuses all parties to the conflict of ‘widespread violations of international humanitarian law’ as well as obstruction of the distribution of humanitarian assistance. The report was referenced by advocacy group Campaign Against Arms Trade (CAAT) when it made the case for judicial review into the UK government’s decision to continue selling weapons to Saudi Arabia, despite what it said was a ‘clear risk that the arms might be used in the commission of a serious violation of international humanitarian law’.
My office has long called for an international investigation into human rights violations and violations of international humanitarian law [in Yemen]
Zeid Ra’ad Al Hussein
UN High Commissioner for Human Rights
The High Court ruled the sale of arms is lawful. Lord Justice Burnett and Mr Justice Haddon-Cave said they had, in part, based their decision on material that has not been made public for national security reasons. CAAT has filed an appeal. Further, the Trump administration continues to supply weapons to Saudi Arabia and, after a recent trip to Riyadh, the President said he had closed an arms deal worth $110bn.
Since the war went ‘awry’, as Zeid describes it, there have been over 13,000 casualties and over 5,021 deaths, according to the High Commissioner’s Office. Though the overall number is probably much higher, the Office adds, with estimates reported of more than 11,000 civilian deaths.
Some international observers foresaw the disintegration of Yemeni society as the county’s oil reserves dwindled... In 2005, prominent economist Jeffrey Sachs described the situation in Yemen as ‘one of the most difficult challenges in the world’, according to a confidential diplomatic cable released by WikiLeaks. He was then Special Advisor to UN Secretary-General Kofi Annan and currently acts as Special Advisor on the Sustainable Development Goals to UN Secretary-General António Guterres. ‘When I got back to Washington, I tried to make this point but nobody cared. The country was closer to disaster than just about any peacetime situation I had ever seen,’ Sachs says.
Over ten years later, famine looms, with 7 million Yemenis on the brink of starvation, according to the World Bank. Whether it’s officially a famine isn’t the issue, ‘it’s already a disaster, no matter what it’s called,’ Sachs tells Global Insight.
The report presented by the High Commissioner at the 33rd session of the UNHRC in September 2016 lists civilian casualties caused by drone strikes ‘allegedly carried out by the United States Air Force in cooperation with the Government of Yemen as part of their campaign against suspected Al-Qaida affiliates’. Under President Obama, the US started what has been dubbed a ‘shadow war’ in Yemen, targeting suspected terrorist sites.
The International Bar Association’s Human Rights Institute recently adopted a resolution in which it expresses concern about the use of drones, or Unmanned Aerial Vehicles. The use of drones ‘is no stranger to fierce controversy’, according to Federica D’Alessandra, Co-Chair of the IBA War Crimes Committee. ‘The secrecy that has surrounded and still surrounds the use of drones in counterterrorism raises a number of important tactical, ethical, and legal questions. From a human rights law perspective, the extra-judicial context of most targeted drone strikes is hard to reconcile with the inviolability of the right to life and the right to due process of all suspects. From the perspective of international humanitarian law and the law of armed conflict, there are many questions concerning the legal and tactical aspects of their use that we are not fully able to scrutinize,’ says D’Alessandra.
Handbook for lawyers on business and human rights – new online resource
The IBA Legal Policy & Research Unit has launched a new handbook on business and human rights. This online self-learning tool aims to help lawyers to integrate business and human rights considerations into the advice they provide to clients in relation to mergers and acquisitions and commercial transactions.
Bringing together a diverse collection of educational resources relating to the roles and responsibilities of legal practitioners, the handbook includes background context and explanation, case scenarios, discussion exercises, frequently asked questions, sample checklists, and further reading and resources.
It is designed to assist legal practitioners to develop, improve and supplement their legal services to their clients by encouraging reflection and discussion about:
- the various ways in which human rights risks can be relevant to different areas of legal practice; and
- how lawyers can respond to those risks, in the context of a lawyer-client relationship, through the provision of legal advice and services that are aligned with broader risk management and human rights perspectives.
Access the handbook on the IBA website at tinyurl.com/LPRU-Business-HR-handbook.
Istanbul Protocol and torture prevention in Mexico – IBAHRI films
New films focusing on the issue of torture, legal redress for victims and underpinning United Nations standards have been produced by the IBA Human Rights Institute (IBAHRI).
In two videos, the IBAHRI and the Anti-Torture Initiative of the Washington College of Law present conversations with key global experts on the Istanbul Protocol – a set of UN standards for the investigation and documentation of torture and other degrading treatment, and reporting it to the judiciary and investigators.
The discussion covers how the Protocol can be used effectively, some of the challenges that medical and legal professionals face in implementing it, and reflections on the future of these international standards.
The IBAHRI has also produced a short video on its torture prevention work in Mexico, where enforced disappearances and cases of torture continue to be a concern and impunity for these crimes persists.
Over the past four years, the Institute has worked with national and international bodies to train judges, prosecutors and public defenders to increase their awareness of enforced disappearances and strengthen their capacity to prevent and prosecute torture.
The video outlines the challenges that Mexico faces and how the IBAHRI has been working with the country’s legal profession to break the cycle of impunity and support justice in the country.
eyeWitness to Atrocities marks achievements two years on
The eyeWitness to Atrocities app – set up by the IBA to help human rights defenders, journalists and others to collect photos and videos of atrocity crimes for use in investigations or trials – has reached its two-year anniversary.
It was initiated in June 2015 to document and report human rights atrocities in a secure and verifiable way, providing a solution to the evidentiary challenges surrounding mobile phone footage.
During this time, the app has reached all five continents, with regular downloads now a daily occurrence. eyeWitness has also built trusted relationships with 15 organisations that already document atrocities for the purpose of justice. More than 450 people have been trained in how to use the app in 12 hotspot regions around the world.
Today, a pro bono roster, comprised of young lawyers from three highly respected international law firms, analyse all footage received by eyeWitness on a weekly basis. The group of 11 lawyers have donated over 100 hours to the project so far.
Having made significant progress in building a database and supporting end users on the ground, eyeWitness this year looks to develop version 2 of its app, with a focus on maintaining its all-important security features.
For more information and to download the app, go to www.eyewitnessproject.org.