Covid-19: emergency travel bans raise immigration concerns
JENNIFER SADLER-VENIS, IBA MULTIMEDIA JOURNALIST
Several countries have closed their borders to contain and delay the spread of Covid-19, the coronavirus that has affected more than 1,019,000 people worldwide so far. What began as a series of restrictions focusing on travel to and from outbreak zones has morphed into a global trend towards rapid isolationism that has left foreign workers stranded and violated international human rights norms.
Baroness Helena Kennedy QC, Director of the IBA’s Human Rights Institute, told Global Insight that ‘some authoritarian leaders are using this opportunity to introduce laws that are oppressive, under the guise of the public interest’.
The World Health Organization (WHO) ‘continues to advise against the application of travel or trade restrictions to countries experiencing Covid-19 outbreaks’, as it says they are not usually effective but can have signficant economic impact. By 27 February, however, 38 countries had reported measures that interfere with international trafic, including visa restrictions, denial of entry and quarantines.
Many countries initially focused on testing travellers from China and nearby countries on arrival, or placing them in two-week quarantine. This was quickly replaced by outright bans on travel from outbreak zones, with the only exception being citizens who needed to get home. As of 24 March, several countries, including Spain and the US, have closed their borders to non-essential travel, limiting the movements of citizens as well as non-nationals.
The WHO states travel restrictions are only justfiable at the beginning of an outbreak, to give countries a few days to implement preparedness measures, and must be ‘proportionate to public health risk and short in duration’. But many of the restrictions brought in so far do not have a limited duration and have been implemented when the country already has a signficant number of national cases.
On 11 March, US President Donald Trump announced 30-day travel restrictions from the European Schengen area, which soon extended to the UK and other areas. The restrictions were brought in despite the US having, by that point, almost as many cases of Covid-19 as Europe. When European leaders criticised the Trump administration for bringing in the ban without consulting them, President Trump blamed their inaction in closing their own borders for the spread of Covid-19 throughout Europe and into the US. He defended the ban as the ‘most aggressive and comprehensive effort to confront a foreign virus in modern history’.
Highlighting the US President’s repeated positioning of the virus as ‘foreign’ or ‘Chinese’, Baroness Kennedy raises concerns about the plight of foreign workers and ethnic minorities. ‘It’s very easy for populist leaders to present this virus as something that is foreign, that the indigenous homogenous population has been contaminated by the introduction of outsiders, and that therefore the borders have to be made tighter and stronger,’ she says. ‘They call for more isolationism and it also means that the people who are already in the country become suspect’.
For Anne Frances O’Donoghue, Co-Chair of the IBA Immigration and Nationality Law Committee, ‘the US administration can be seen to have used concerns of public health surrounding the coronavirus to fuel President Trump’s agenda for travel bans and stricter border security.’
O’Donoghue suggests that, while restriction of movement between countries and areas where many people have been infected may reduce the spread of the coronavirus, severe and unnecessary restrictions can also have the adverse consequence of escalating fear and stigma.
In late February, Matteo Salvini, leader of the League party in Italy, decried the Italian government for allowing a boatload of African migrants to dock in Sicily, stating: ‘Allowing the migrants to land from Africa, where the presence of the virus was confirmed, is irresponsible’. At the time, the only African country with a confirmed case was Egypt, with just one case, while Italy at that point had over 200.
Ahead of mutually closing the US borders with Canada and Mexico, the US government brought in strict measures at the Mexican border. Asylum seekers are to be turned away without due process, in violation of basic international norms.
‘This strict new border control will put asylum seekers in even more danger than before,’ says O’Donoghue, who is also Managing Director and Principal Lawyer at Immigration Solutions Lawyers in Sydney. ‘Given that the Trump administration has previously tried to push through a policy that would deny asylum to migrants who have crossed the southern border outside of legal entry points, these new policies implemented on the basis of the coronavirus threat may be perceived as achieving the President’s own immigration agenda.’
Baroness Kennedy agrees that the US ‘is tearing up international commitments and the protections that we provide people who are fleeing persecution,’ and highlights the vulnerability this creates for society as a whole. ‘President Trump has been vitriolic about “illegals”. And so those “illegals” are going to be even more fearful about doing anything about getting medical help,’ she says. ‘The whole of society becomes more vulnerable with policies like that’.
IBAHRI calls on the Integrated Bar of the Philippines to address extrajudicial killings of 50 lawyers
The International Bar Association’s Human Rights Institute (IBAHRI) sent an open letter to the Integrated Bar of the Philippines on 27 February, calling on the body to take action against the continued persecution of lawyers, prosecutors and judges, as well as in respect of extrajudicial killings, committed as part of the ‘war on drugs’ under Philippines’ President Rodrigo Duterte.
The letter follows reports that as of 10 June 2019, 27,000 people have been extrajudicially killed with impunity. The number includes 50 Filipino lawyers and judges, together with court workers and paralegals. Reports further state that eight lawyers have survived fatal attacks and that one lawyer has been abducted and/or disappeared. Few suspects have been identified by investigations or held accountable through prosecution and trial. It is estimated that in only five of these cases are suspects in custody or have charges pending against them.
The phrase ‘war on drugs’ refers to a crackdown initiated since President Duterte came into power in June 2016. It has included the persecution of lawyers representing those accused of drug crimes, including by publicly naming and vilifying them.
The IBAHRI’s letter asks the Integrated Bar of the Philippines to urgently detail the steps taken in response to the alleged 50 extrajudicial killings of lawyers that have been reported under President Duterte’s period in office.
To read the letter, go to tinyurl.com/PhilippinesBar
IBAHRI highlights plight of lawyers in Kazakhstan
On 5 March, the International Bar Association’s Human Rights Institute (IBAHRI) delivered a statement at the 43rd Session of the UN Human Rights Council addressing their concerns about the intimidation experienced by some independent human rights lawyers in Kazakhstan.
The statement follows a report on Kazakhstan by the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, which raised serious concerns about the climate of fear that affects independent human rights lawyers in the country.
Separately, on 4 March, the IBAHRI condemned the decision of the Supreme Court of the Republic of Kazakhstan on 26 February 2020 to disbar two lawyers – Amanzhol Mukhamedyarov and Erlan Gazumzhanov – from practising law.
After posting an archive video on a social network of a court hearing session from 29 April 2019, the lawyers were accused of violating the Supreme Court rule prohibiting online publication of trial recordings. The video revealed a judge making inappropriate comments about the two lawyers specifically, and the legal profession in general. Following the posting of the video, the Ministry of Justice of the Republic of Kazakhstan initiated disbarment proceedings.
‘The disbarment of Amanzhol Mukhamedyarov and Erlan Gazumzhanov is a disproportionate sanction and can be rightly viewed as a method of intimidation,’ said IBAHRI Co-Chair, the Hon Michael Kirby AC CMG. ‘The IBAHRI strongly condemns this action and urges the Kazakhstani authorities to overturn the decision.’
‘The ban on filming and online publication of courtroom proceedings in Kazakhstan was aimed at preventing distraction and interruption of proceedings,’ added Kirby. ‘It was not intended as a cover for seriously improper conduct and comments that should be known and seen by those whom the law protects: the citizens and litigants of the country.’
To read the statement to the UN, visit tinyurl.com/IBAHRI43rd. To see the full statement on the Supreme Court decision, go to tinyurl.com/IBAHRIdisbar
IBAHRI continues training on economic, social and cultural rights in Tunisia
On 2–5 March, the International Bar Association’s Human Rights Institute (IBAHRI) conducted training for lawyers in Tunisia to ‘train the trainers’ on economic, social and cultural rights (ESCR). The training forms part of a project established in 2018 in partnership with the International Legal Assistance Consortium, the Office of the United Nations High Commissioner for Human Rights in Tunisia and the Tunisian Administrative Tribunal. The project’s overall aim is to increase the ability of administrative judges, lawyers and civil society actors to adjudicate, litigate and report violations of ESCR.
An earlier training session, which took place in February, focused on training for judges on judicial enforcement of ESCR within the national context. The training aimed at developing the capacity of Tunisian judges to adjudicate violations of ESCR in line with international human rights law standards.
To find out more about the project, go to tinyurl.com/HRITunisia
IBAHRI issues calls over Gezi Park judges and case against Ramazan Demir
In late February, the International Bar Association’s Human Rights Institute (IBAHRI) and the International Commission of Jurists (ICJ) urged the Turkish Council of Judges and Prosecutors – Turkey’s legal disciplinary body responsible for judicial appointments – to stop their investigation into three judges of the Istanbul 30th Heavy Penal Court who, on 18 February 2020, acquitted the 16 defendants in the Gezi Park trial due to a lack of evidence. Having observed all hearings of the trial, the IBAHRI and ICJ welcomed the acquittals.
The Gezi Park trial related to protests that began in May 2013 and centred around a park in Istanbul. The protests later spread nationwide and were quelled by police.
Following the acquittal, one defendant – Turkish businessman and philanthropist Osman Kavala – was re-arrested on a charge related to the failed attempted coup in Turkey of 2016.
‘We condemn the re-arrest of Mr Kavala, continue to stand with the defendants and call for Mr Kavala’s immediate release,’ said the Hon Michael Kirby AC CMG, Co-Chair of the IBAHRI. ‘We implore the CJP to reconsider the hugely damaging impact their inspection of the judges will have on the principles of judicial independence and the rights of lawyers, and to cease all action in this respect.’
Separately the IBAHRI issued a call in late February for the Turkish authorities and the Istanbul Bar Association to uphold the rule of law, and to respect the integrity and independence of the country’s legal profession, in the context of the longstanding criminal case against human rights lawyer Ramazan Demir and 11 other lawyers. Demir – recipient of the 2017 IBA Human Rights Award – and other human rights lawyers face charges stemming from their work representing 46 other lawyers who were arrested in 2011 for allegedly working for, or belonging to, a terrorist organisation. Demir was set to attend Turkey’s Heavy Criminal Court on 28 February.
To read more, please visit tinyurl.com/GeziParkHRI and tinyurl.com/RamazanCase respectively.
IBAHRI condemns alleged treatment of Julian Assange in US extradition trial
The International Bar Association’s Human Rights Institute (IBAHRI) condemns the alleged mistreatment of Julian Assange – the founder of WikiLeaks – during his US extradition trial in London in February, and urges the UK government to take action to protect him. According to his lawyers, Assange was handcuffed 11 times; stripped naked twice and searched; had his case files confiscated after the first day of the hearing; and had his request to sit with his lawyers during the trial, rather than in a dock surrounded by bulletproof glass, denied.
The UK hearing began on 24 February and will decide whether Assange will be extradited to the US, where he is wanted on 18 charges of attempted hacking and breaches of the US Espionage Act 1917. He faces allegations of collaborating with former US army intelligence analyst Chelsea Manning to leak classified documents. The hearing was adjourned after four days, with proceedings set to resume on 18 May.
Anne Ramberg Dr jur hc, IBAHRI Co-Chair, said that Assange ‘must be afforded equality in access to effective legal representation. With this extradition trial we are witnessing the serious undermining of due process and the rule of law.’
To read the full statement visit tinyurl.com/HRIAssange
IBAHRI Director discusses freedom of thought on BBC Radio 4
Baroness Helena Kennedy QC, Director of the IBA’s Human Rights Institute, has appeared as a presenter on the BBC Radio 4 programme Forum Internum, where she discusses our right to freedom of thought and its protection in the digital age.
The three-part series, first released on 28 February 2020, analyses the vulnerability of the right to freedom of thought and the need to safeguard it. Baroness Kennedy discusses social media technology, advances in artificial intelligence, new kinds of surveillance and manipulation through data mining, among other things, and their impact on the forum internum – a term referring to our own private mental space.
The series concludes with Baroness Kennedy looking at the role the law can play in the protection of the forum internum from the misuse of new technologies by corporations and the state.
The series is available on the BBC website at tinyurl.com/BBCHelena
Review aims to strengthen ICC’s ability to deliver justice
RUTH GREEN, IBA MULTIMEDIA JOURNALIST
Justice Richard Goldstone, the former Chief Prosecutor of the United Nations International Criminal Tribunal for the former Yugoslavia and Honorary President of the IBA’s Human Rights Institute, has been appointed to chair an independent review of the International Criminal Court (ICC or the ‘Court’) two decades after the Court was created.
The independent review chaired by Justice Goldstone forms part of a broader review being carried out by the ICC’s States Parties and will make ‘concrete, achievable and actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole,’ according to the ICC.
Justice Goldstone and eight other experts on international criminal justice will focus their attention on three distinct areas: governance; judiciary and the judicial process; and investigations and prosecutions at the Court. Following consultations with States Parties, Court officials and civil society, the expert group is due to submit a final report, including recommendations, to the Bureau of the Assembly, the Assembly of States Parties (ASP) and the Court by the end of September 2020.
The review comes at an ‘auspicious’ time as the ICC continues to face substantial criticism, says Sternford Moyo, former President of the Law Society of Zimbabwe and a member of the IBA African Regional Forum Advisory Board. ‘It is our hope and expectation that the panel of experts will identify those areas in the ICC’s work that require attention and the ways in which the ICC’s work and credibility can be strengthened,’ says Moyo. ‘As is the case with any project after running for some time, it is important to review operations and benefit from practical implementation of the project in order to strengthen it.’
The Rome Statute was adopted in 1998 and entered into force in 2002, formally establishing the ICC as a permanent, autonomous court in The Hague. The Court has received ten referrals from States Parties since its inception, but has issued only nine convictions and four acquittals over this period and faced continual criticism for alleged ‘bias’ against Africa. It ended 2019 on a high with the sentencing of former Congolese General Bosco Ntaganda, who was given 30 years for war crimes and crimes against humanity in the Democratic Republic of the Congo.
Dr Simon Adams, Executive Director at the Global Centre for the Responsibility to Protect, believes the time is right for an independent body to take stock of the Court’s role and function, and identify ways to address any concerns. ‘Those who want to return to a global climate of total impunity for atrocities would like nothing better than for the ICC to fail,’ he says. ‘But despite its past shortcomings and mistakes, the ICC is still the only truly internationally legitimate place where those who commit war crimes, genocide and crimes against humanity can be brought to justice. My hope is that this review process will strengthen and reinvigorate the Court.’
Seven of the ten referrals received by the Prosecutor’s Office since 2002 have related to African territories, but the ICC is also conducting investigations in Georgia and Myanmar, as well as preliminary examinations in Colombia, Iraq/UK, the Philippines, Ukraine and Venezuela. In December 2019, the Court heard oral arguments for its investigation into alleged war crimes related to the armed conflict in Afghanistan.
That same month ICC Prosecutor Fatou Bensouda took the unprecedented step of announcing that she was ‘satisfied’ there was ‘a reasonable basis to proceed’ with investigations into alleged war crimes in the West Bank, including East Jerusalem, and the Gaza Strip. Bensouda, who has been in the role since June 2012, is due to step down in June 2021. The Prosecutor’s Office cofirmed to Global Insight that her successor will be elected at the 19th Session of the ASP, which will take place at the UN’s headquarters in New York in December this year.
The expert group undertaking the review process will act in an independent capacity and will not take instructions from States Parties or the Court itself. In addition to Justice Goldstone, the group includes Nicolas Guillou, a French judge who currently sits at the Kosovo Specialist Chambers; Argentine judge Mónica Pinto, the incumbent UN Special Rapporteur on the independence of judges and lawyers; and Australia’s Mike Smith, the former Assistant Secretary-General at the UN and former Chair of the UN Commission on Human Rights.
Moyo believes the review will help strengthen the Court’s mandate to bring justice to victims worldwide. ‘As lawyers, we naturally look forward to assisting wherever we can to ensure that when crimes against humanity are committed, there should be no impunity,’ he says. ‘We see the appointment of the Expert Review Group by the ASP as a measure whose spirit and objective is to strengthen the role of international criminal justice.’