Human rights news from the IBA - June/July 2017

Terrorism and the law: tech companies central to government response

Yola Verbruggen

Following the recent terror attacks in London and Manchester, British Prime Minister Theresa May has called for increased pressure on tech companies to tackle online extremism.

Attending the G7 summit in Italy just days after the suicide bombing of Manchester Arena on 22 May, the Prime Minister said the fight against ISIS is ‘moving from the battlefield to the internet’. In a joint statement, G7 leaders committed to fighting extremism online, including through technology that would automatically remove messages that incite violence.

May called it tech companies’ ‘social responsibility’ to do more to stop the spread of extremist propaganda online. ‘In the UK, we are already working with social media companies to halt the spread of extremist material and hateful propaganda that is warping young minds. I am clear that corporations can do more,’ she said.

She reiterated the call for greater online regulation following the London Bridge attack on 3 June, when three men drove a van into pedestrians and then leapt out to stab others, saying the internet and tech companies are providing extremists with a ‘safe space’ to breed. She added there is a need ‘to reach international agreements that regulate cyberspace to prevent the spread of extremist and terrorism planning’.

Pressure has been mounting on tech companies since early this year, after what police believe was a lone man’s killing of four people near Westminster in London on 22 March. The attack stirred the debate on the boundaries of the law and the remit of government bodies to prevent terror attacks.

At the centre of the debate was messenger service WhatsApp, which the attacker was thought to have used minutes before driving a car onto the busy pedestrian lane on Westminster Bridge. The police investigation found the attacker may have used the Facebook-owned app, but it is uncertain whether he used it to send a message or simply opened the app.

In a statement, WhatsApp said it is ‘cooperating with law enforcement as they continue their investigations’. Home Secretary Amber Rudd said the event called for government access to encrypted messages, saying, ‘WhatsApp cannot be a “secret place for terrorists to communicate”’.

Industry experts are questioning the benefits that could be gained from such access and caution against a weakening of security.

‘The Home Secretary's campaign to seek access to encrypted messages – which reflects a long-standing ambition of intelligence and security services in the United Kingdom and elsewhere – is profoundly misguided,’ says Nicholas Bohm, a member of the Open Rights Group Advisory Council and General Counsel for the Foundation for Information Policy Research.

Such access can only be achieved through the introduction of ‘secret backdoors’, which harm security and privacy, according to Bohm. ‘The harm caused will be hugely disproportionate to the possible gains,’ he adds.

Anthony Walker, Deputy Chief Executive Officer of London-based techUK, emphasises that, under the Investigatory Powers Act, the UK already has far-reaching powers related to interception warrants, equipment interference warrants, and bulk communication data acquisition warrants.

‘It’s essential to consider the full range of security threats faced by the UK when discussing the use of end-to-end encryption,’ says Walker. ‘Encryption technologies are a fundamental tool for ensuring the UK remains cyber secure. End-to-end encryption is the best defence we have available to keep the data and services we all rely on safe from misuse.’

Other tech companies have come under increased pressure to stop the spread of extremist propaganda. HSBC, Lloyds and the Royal Bank of Scotland withdrew their adverts from Google after these appeared alongside extremist videos. The makers of YouTube videos earn money from the companies whose banners are shown alongside their footage, once their posts receive a certain number of clicks.

On 30 March, Rudd met with leading tech companies to discuss further cooperation, but a statement released after the meeting made no mention of encryption.

‘Our companies are committed to making our platforms a hostile space for those who seek to do harm and we have been working on this issue for several years. We share the government’s commitment to ensuring terrorists do not have a voice online,’ Facebook, Microsoft, Twitter and Google said after the meeting.

Following the more recent attack at London Bridge, Twitter said that ‘terrorist content has no place’ on the network, while Facebook and Google released statements in which they have emphasised the work they are doing to fight extremism online.

Speaking after the Westminster attack, Richard Goldstone, Chair of the IBA Task Force on International Terrorism and former Chief Prosecutor of the United Nations International Criminal Tribunal for the former Yugoslavia, urged a measured response. ‘I am not aware of any laws that require to be made stricter. No laws can assure safety from terrorist acts and especially those of “lone wolves” abusing everyday activities such as driving a motor vehicle in a crowded pedestrian area. We have to accept that we have to live with that threat,’ he says.

Juan Mendez, former UN Special Rapporteur on Torture, who also served on the IBA Task Force on International Terrorism, warns that an overreaction could lead to more violence: ‘I think the law protects us not so much from terror attacks but from excesses and unwarranted encroachments of governments on our civil liberties under the guise of protecting us from attack. The balance has to be carefully drawn. If we act irrationally or we overreach, we attack our own civil liberties, we betray our own principles and we recreate conditions for more violence in the future.’

IBA partners with UN for global anti-torture initiative

Ahead of the International Day in Support of Victims of Torture on 26 June, the IBA and the United Nations Office of the High Commissioner for Human Rights have joined forces to advance the shared ambition for the absolute prohibition of torture.

The initiative also aims to raise awareness about the damaging repercussions of torture on the rule of law, and the active role of the legal profession in preventing its use and recurrence.

To mark the start of the partnership, a high-profile panel discussion will take place on 26 June at King’s College London, featuring:

• Zeid Ra’ad Al Hussein, UN High Commissioner for Human Rights;
• Baroness Helena Kennedy QC, Co-Chair of the IBA Human Rights Institute;
• Juan Mendez, former UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment;
• Zimbabwean human rights lawyer, Beatrice Mtetwa; and
• Dr Mark Ellis, IBA Executive Director.

More information on the initiative and the event can be found at: tinyurl.com/IBA-Anti-Torture

IBAHRI signs GQual Declaration for gender parity

The IBA Human Rights Institute (IBAHRI) has underlined its support for gender equality at international institutions by signing the GQual Declaration for Gender Parity in International Representation.

IBAHRI Co-Chair Baroness Helena Kennedy QC is the latest high-profile signatory of the Declaration, joining prime ministers, presidents, judges, lawyers, academics and activists in endorsing GQual’s campaign for gender parity.

Women continue to be highly under-represented at international tribunals, and adjudicatory and international bodies responsible for monitoring and developing international law and human rights. Currently, the overall average representation of women at the major international courts is only 17 per cent. This gender disparity is also apparent in the United Nations system, where until 2016, 19 out of 52 Special Procedures positions had never been held by a woman.

GQual’s campaign calls for:

• the establishment of national and international guidelines, measures and mechanisms that guarantee gender parity in positions involving international responsibility; and
• the executive branch and foreign ministry in every country to publicly pledge to guarantee parity when presenting and voting for candidates for international tribunals, bodies and organisations.

To read the GQual Declaration in full, visit www.gqualcampaign.org

Groundbreaking IBAHRI mentorship programme for Azerbaijani lawyers

The IBA Human Rights Institute recently launched a mentorship programme to develop professional relationships between senior and junior lawyers in Azerbaijan and create an enthusiastic new generation of human rights lawyers. An initial meeting in the Georgian capital, Tbilisi, was attended by lawyers of varying levels of experience.

The initiative comes after the European Court of Human Rights found that, of the 535 cases brought against Azerbaijan over the past five years, Azerbaijani authorities had violated its people’s human rights in 92 per cent of them.

Part of the problem is a scarcity of practising Azerbaijani lawyers to defend rights. In a population of 9.7 million, there are only 950 registered lawyers. By comparison, Sweden has 6,000 practitioners out of a population of 10 million.

During the initial meeting, the attending lawyers jointly developed rules and guidelines for their future work together. Going forward, the mentorship programme will enable junior and senior lawyers to continue exchanging ideas about human rights work in Azerbaijan, and establish cooperative mentoring partnerships that will facilitate better practice going forward.

The initiative aims to bring senior and junior Azerbaijani lawyers together, to work on human rights cases, as well as teach and benefit from each other's ideas and experiences. The objective is to ensure that legal assistance is effective and accessible to everyone who needs it, and to advance the overall promotion and protection of human rights in the country.

‘Vigilant’ French law introduces duty of care for large companies

Polly Botsford

The French National Assembly has passed a new law making it mandatory to carry out ‘vigilance’ and monitoring of human rights and environmental concerns within companies and, crucially, within their supply chains. The legislation is set to ‘force companies to change their mindset’, says Els Reynaers Kini, Senior Vice-Chair of the IBA Environment, Health and Safety Law Committee.

Translated as ‘On the Duty of Care of Parent and Ordering Companies’, the law goes further than similar legislation in other jurisdictions, such as the Modern Slavery Act in the United Kingdom or the European Non-Financial Reporting Directive, by establishing not only a reporting obligation but also a monitoring obligation. ‘In-house counsel will have to apply their minds to it,’ says Reynaers Kini.

There are concerns over the restrictive definition of which organisations are covered by it: they have to have at least 5,000 employees. It has been estimated that, in France, only 100 to 200 companies will fall within that definition and so will be caught by the law.

‘This definition is outdated because it measures companies by the number of staff they have, which reflects traditional manufacturing notions of size,’ explains Reynaers Kini. ‘These days, there are successful companies in industries which don’t have so many employees. Other jurisdictions use a broader definition which means their laws have more effect.’

Those companies covered by the legislation must investigate, report on and monitor their own operations and those in their supply chain to assess the potential human rights and environmental implications of their activities.

In addition, it is not yet clear how far companies will have to go to ensure there are no violations of human rights or the environment, and to what extent they will be implicated in any violations. ‘What is expected of a company in each individual case will depend on the circumstances, including the operating context,’ says Lise Smit, Research Fellow in Business and Human Rights at the British Institute of International Comparative Law.

The legal test of whether or not a company should be liable for a specific violation by, for instance, a subcontractor is a tortious one. ‘The test used may be similar to the “reasonable person” test as to what a company should have done,’ explains Smit.

This means that knowledge, or what a company ought to have known and taken actual steps to find out, may be an important consideration.

‘Companies may be able to show that they have done all that could be expected of them,’ Smit says, ‘by putting in place and implementing a comprehensive “vigilance plan”, tracking its effectiveness, reporting on it, and so on. It remains to be seen whether having taken these steps helps a company with its defence or as mitigating factors. We will know more clearly once courts start to apply the new law.’

The French law has been pushed along by Member of Parliament Dominique Potier, who was prompted to act by a major disaster in a garment factory in Bangladesh, which was believed to have supplied a number of Western companies with clothing for Western markets. The factory, the Savar in Rana Plaza, dramatically collapsed in 2013, resulting in over 1,000 deaths.

Despite the high death toll, compensation was a complex issue. French non-governmental organisations brought claims against a French chain, arguing its clothing range had been made in Rana Plaza, but these were unsuccessful.

The tragedy highlighted the poor conditions and lack of legal protections for workers in a sector which forms part of the supply chain of well-known Western brands, and thus pushed business and human rights principles up the legislative agenda.

Those principles, that businesses have an obligation to be aware of and work to protect human rights, were first put on the map by John Ruggie, former United Nations Special Representative on business and human rights, in his 'Guiding Principles' published by the UN in 2011. Last year, the IBA produced its 'Practical Guide on Business and Human Rights for Business Lawyers' as a handbook for the Ruggie principles.

But, the new law has had its opponents – and was subject to challenge in the French Constitutional Court only weeks after it was brought in. Some 120 legislators from both the National Assembly and the French Senate raised various constitutional questions about the law. The Constitutional Court, however, only invalidated one element of the law: the civil fine.

The constitutional challenge was a symptom of opposition to legislation of this kind. Reynaers Kini, however, argues that companies do adapt and she has seen this in India where, in 2013, a similar law was brought in. ‘Each company has to adopt a corporate social responsibility action plan. Companies have to allocate two per cent of their profit wherever they have a presence to a project which enhances human rights. Indian businesses were really against it but, in only four years, they have really changed – and the law has had a very positive response,’ she says.

Smit says that, though it might appear that the French law is onerous on French businesses, the law should provide much-needed clarity on what a company’s obligations are: ‘There is a misconception that businesses want less regulation. In reality, companies are creations of statute and operate within the confines of regulation daily. What they want is legal certainty – where is the law going and how can we make sure we comply and avoid future legal risks? A clear law is welcome.’

New IBAHRI report calls for better protection for persons with albinism

The IBAHRI Task Force on the Enjoyment of Rights by Persons with Albinism has issued a report on the human rights violations faced by those with the congenital disorder and how to tackle the problem at international, regional and national levels.

‘“Waiting to disappear”  International and Regional Standards for the Protection and Promotion of the Human Rights of Persons with Albinism’ highlights the obligation that states and the international community have to promote and protect the human rights of persons with albinism – characterised by the complete or partial absence of pigment in the skin, hair and eyes.

Although it affects all gender and ethnic groups around the world, severe misunderstanding about the condition can lead to human rights violations, ranging from unequal access to education and work, to violent physical attacks.

Myths surrounding those with albinism are also common – with some people believing their body parts can cure disease, or bring wealth and good luck. Witchcraft practitioners in Sub-Saharan Africa use the body parts in rituals, and will pay a high price to obtain them, leading to the mutilation and murder of persons with albinism.

The Task Force’s report also sets out a series of recommendations, including:

• Legislation that does not comply with international and regional human rights standards should be amended or abolished, and necessary laws criminalising and punishing any acts of violence or discrimination against persons with albinism introduced.
• Any allegations of human rights violations against people with albinism should be investigated promptly, thoroughly and independently, and the rights of victims to adequate, fair and effective remedy and reparation guaranteed.
• Measures to ensure equal access to the highest standard of mental and physical health, education and work should be available to those with albinism.
• The lack of data regarding people with albinism, specifically their regional and national numbers, should be addressed, and their situational needs monitored and met.
• Those with albinism, and their regional, national and local organisations, should be meaningfully consulted and involved in the creation and implementation of effective measures.

Ikponwosa Ero, United Nations Independent Expert on the Enjoyment of Human Rights by Persons with Albinism and a member of the Task Force, comments: ‘The use of the standards laid out in this paper, particularly the implementation of its recommendations, promises to contribute to the eradication of the real and palpable fear that has crippled persons with albinism and their families in the wake of attacks.’

To download the report, go to tinyurl.com/yavjenzc

Podcast: refugees struggle to access legal advice

Following the March 2016 agreement between the European Union and Turkey to control the influx of migrants entering Europe, thousands of refugees are now confined to Lesvos and other Greek islands. A new IBA podcast focuses on lawyers and aid workers as they attempt to gain access to those in greatest need of legal advice.

Struggling to access legal support and information on filing asylum applications, many refugees are interned in pre-removal detention camps where they face poor living conditions, or potential deportation back to an unsafe home environment.

In this exclusive report from Lesvos, Global Insight speaks to Achilleas Tzemos, Lesvos Field Coordinator with Médecins Sans Frontières; Ariel Ricker, Executive Director of legal NGO Advocates Abroad; and Anahi Ayala, Humanitarian Director at information NGO Internews.

This and other IBA podcasts are available at www.ibanet.org/Podcasts/Home