Interview with Sternford Moyo - Global Insight Apr/May 2021

Wednesday 24 March 2021

Sternford Moyo – Senior Partner and Chairman of Zimbabwean law firm Scanlen and Holderness – began his term as IBA President in January 2021. In this wide-ranging conversation with the IBA’s Multimedia Journalist, Jennifer Venis, Moyo gives his views on subjects including the challenges facing the International Criminal Court and tackling corruption.

Jennifer Venis: Some have suggested that the International Criminal Court (ICC) and the United Nations Security Council are perhaps failing in some ways in their remit to tackle issues such as atrocity crimes like genocide effectively, in particular that the veto power is undermining the ICC’s ability to reach certain crimes. How can the ICC and the UN Security Council be restored as trusted justice mechanisms for the international community? Is there any need for reform, for the abandonment of the veto power for permanent states for example?

Sternford Moyo: The basic problem is that a number of influential states are not members of the Rome Statute. They are not member states of the ICC. It seriously undermines the ICC that a powerful nation like the United States quickly unsigned their own treaty.

Without the participation of powerful nations it becomes very difficult to get other states – not necessarily powerful states – to comply with their obligations, particularly where they are not members of the Rome Statute themselves. Chapter VII [of the UN Charter] mechanisms rely entirely on a UN Security Council resolution to authorise an investigation or to direct an investigation into a situation, such as we saw in Sudan for instance, which was I think the very first case of a Chapter VII resolution. Now where the powerful states themselves are not members of the Rome Statute and they are not members of the ICC, their commitment to international criminal justice immediately becomes questionable. And secondly, there is something fundamentally wrong about one [nation] not subscribing to a system and then purporting to use that system against other nations. It really undermines the credibility of international criminal justice.

The ideal situation for all these countries, particularly powerful countries, is to be members of the ICC, to have signed and ratified the Rome Statute.

JV: You have previously said that you cannot be a good commercial lawyer unless you have an in-depth knowledge of human rights, and unless you have a good understanding of the rights protected in the jurisdiction in which you operate. Can you speak more about that notion?

SM: The world is changing. What we face today is that if you are complicit with human rights violations, you immediately find yourself in difficulties. For instance, it may be difficult for you to distribute your products as a business, because there are purchasers or customers who will not purchase products produced in circumstances which violate human rights. If you’re complicit with human rights violations, there is also a danger that you will find yourself civilly liable in respect of those violations: there have been many instances where corporates have been sued as a result of their activities in countries where human rights were not observed, and they were found to have been complicit in human rights violations. So, it’s no longer safe to run a business in circumstances where human rights are not observed or in circumstances where it may be alleged that you were complicit with a regime that violated human rights or in circumstances where it may be at least that you as a culprit were guilty of a violation of human rights.

The ideal situation for all these countries, particularly powerful countries, is to be members of the ICC, to have signed and ratified the Rome Statute

JV: It’s really important for all lawyers to have an awareness.

SM: Yes, it is a fundamental risk that ought to be taken into account in the organisation of any business or in the operations of any business, or in deciding on an acquisition or the expansion of any business. You can’t ignore the human rights factors surrounding the operations of the business, because if you do, you do it at your own peril because there are risks involved, including risk of liability. There’s reputational risk involved as well, because you may find that your reputation as a business is seriously damaged by operating under those circumstances. And even worse, you may lose your assets as a result of civil liability arising from operating under those circumstances.

JV: Anti-corruption is one of the key pillars for your tenure as the IBA President. The IBA Legal Policy and Research Unit’s report on whistleblower protections found that whistleblower rights on paper and the legislation are not actually amounting to real protection for whistleblowers. What are the key challenges in tackling corruption at this time and to what extent do a lack of whistleblower protections make those challenges more difficult?

SM: At the heart of the weaknesses in efforts to combat corruption is the lack of political will to eliminate corruption in the first place. Invariably, corruption is a crime that involves people with some form of power. It is an offence associated with abuse of power, so it involves people with power in the first place. Without that political will to eliminate corruption, it becomes extremely difficult to put in place measures that ensure that it’s eliminated. And [one of] those measures is the protection of whistleblowers, ensuring that information aimed at exposing corruption flows freely. Journalists who expose corruption often run into difficulties, especially when they are dealing with autocratic regimes, because there is no political will to eliminate corruption.

JV: The Covid-19 pandemic is exacerbating all issues around poverty and the inequity between richer and poorer nations in terms of access to effective healthcare. Could you speak to any concerns you might have about areas where the pandemic is significantly exacerbating issues of poverty, or about the issue of ‘vaccine nationalism’ and the lack of access to healthcare that some nations might experience?

At the heart of the weaknesses in efforts to combat corruption is the lack of political will to eliminate corruption in the first place

SM: At the heart of the weaknesses in combatting the Covid-19 pandemic is indeed poverty. Because of poverty, it is extremely difficult to implement social distancing, for instance, in overcrowded communities. It is extremely difficult for informal traders, relying on open marketplaces, to implement measures to eliminate or to control the pandemic.

It is difficult for them to access sanitisers, it is often difficult for them to access even the water that they need to clean themselves. It is difficult to access the vaccine because even governments are struggling to access [the vaccine].

The informal traders are struggling for survival. They are caught between a rock and a hard place because they live from day-to-day, they live from hand-to-mouth. It’s extremely difficult for them to isolate or stay indoors to avoid contracting the disease. Poverty is at the heart of it. Even after catching the infection, it becomes very difficult for them to access the healthcare they need to get treated or to implement any preventive measures they may require avoiding further infection.

JV: Is there anything that richer countries should be doing to help with this issue, to ensure that there is a more equitable distribution? Or, is political will in the way?

SM: There’s a lot that can be done. Firstly, there’s a need to avoid hoarding the vaccines, and secondly, there’s a need to deal with the issue of illicit financial flows from poorer nations. Poorer nations are mainly the victims of illicit financial flows. So, stopping that is key to ensuring that the developing nations are able to deal with issues of poverty. It has been established that without illicit financial flows, the developing world would probably not need any aid at all.

In other words, what they receive in aid is smaller than the amount that they lose in illicit finance. There’s also the exploitive practices by corporates, overseas corporates, international corporations, who avoid paying taxes when they operate in developing nations, or which put in place structures that ensure a transfer of tax liability from developing nations to safe havens, to tax havens, outside the developing world. All those practices, if they’re controlled, would go a long way in assisting the developing world in dealing with challenges such as the Covid pandemic.

JV: What can a civil organisation – such as the IBA – and the legal profession as a whole be doing to help the world overcome challenges with political will and put pressure on governments to address these issues?

SM: These issues, such as corruption, and health emergencies, such as the Covid pandemic, are issues that have serious implications on the observance of human rights or the realisation of social or economic rights.

So civic organisations are required to be active in highlighting the negative impact of some of these activities on the observance of human rights or on the realisation of socio-economic rights. Obviously, without resources, it becomes very difficult to realise socio-economic rights. That is why we speak of progressive realisation [in recognition] of the fact that resources are not always available to enable governments to ensure that socio-economic rights are observed.

Human rights activism by organisations, such as the IBA through entities such as the Human Rights Institute, is critical to ensuring that we ameliorate the fate of those suffering as a result of these activities.

JV: Was there anything further you wanted to highlight relating to any of the topics you’ve discussed?

SM: As far as international criminal justice is concerned, the bigger disappointment has been the lack of state commitment to accountability. For instance, several African countries signed and ratified their own treaty. There was a huge amount of enthusiasm in welcoming international criminal justice.

As far as international criminal justice is concerned, the bigger disappointment has been the lack of state commitment to accountability

But soon after the first four cases, we started seeing problems because, for instance, in Uganda, there was a feeling that international criminal justice could be used as a tool to suppress opposition politicians in that country. So, when it became clear that an investigation by the ICC involved an investigation of all – including state soldiers, and including actors supportive of government – the government immediately started crying foul, despite the fact that it was the one that invited the ICC for an investigation. Another situation arose in the Democratic Republic of the Congo, where President Kabila thought that you could use international criminal justice as a tool to control or to eliminate opposition. But he soon discovered that [this] involved an investigation into the activities of all involved.

It is at that stage that a complaint arose that the ICC was targeting African states. The complaint was totally meaningless because, firstly, they had invited the ICC themselves. And secondly, because of the operation of the complementarity principle, the ICC was never going to get involved if the [countries] could deal with these offences at the domestic level. In other words, given a willingness and ability to deal with those offences, there would be no need for the involvement of the ICC.

Also, you may look at it from the point of view that this is a system that was set up to benefit many countries of the world. If [Africa] turned out to be the main beneficiary of the system, is that really a basis for complaint or should we have been celebrating that we are receiving a disproportionate share of the resources?

If you look at all these complaints, you’ll find that there really wasn’t a sufficient commitment to accountability. There wasn’t a sufficient commitment to international criminal justice in the first place. There wasn’t a commitment to eliminating impunity. They saw international criminal justice as something they could use to consolidate their power. When they discovered that was not possible, they immediately became hostile toward the ICC.

In an environment where lawyers are not respected, where lawyers are not allowed to carry out their work, then the observance of human rights becomes problematic

JV: The IBA has recently published a news analysis piece which focused on UK government ministers verbally attacking lawyers and the work of the legal profession, especially those representing asylum seekers. It seems like a lot of governments – even those that have always said that they believe in international justice, that they believe in accountability – actually see the law, and accountability in some ways, as the enemy when it is, in fact, their friend.

SM: Absolutely. It’s the same as the Trump administration taking measures against the prosecutor of the ICC.

Lawyers are a part of the mechanism for accountability. A lawyer’s office is the first stopping point in trying to ensure that rights are enforced. So, in an environment where lawyers are not respected, where lawyers are not allowed to carry out their work, then the observance of human rights becomes problematic. That is why the UN came up with principles regarding the rule of law, and those require that lawyers be free to execute their duties without interference from national governments. It was in recognition of the very fact that powerful people get tempted to try to find ways of making it difficult for lawyers to operate or making it impossible for lawyers to operate.

IBA President Sternford Moyo spoke to Jane Dutton at the IBA 2020 – Virtually Together Conference and a video of that interview is available here.