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Human rights news analysis - April/May 2019

Human rights news analysis - April/May 2019

Venezuela: Latin America’s migration crisis ‘on the scale of Syria’

RUTH GREEN, IBA MULTIMEDIA JOURNALIST

More than 3.3 million people have fled Venezuela since 2015. The United Nations says this figure could rise to 5 million by the end of 2019 as ongoing economic and political turmoil pushes the country to breaking point. Matthew Reynolds, the UN Refugee Agency’s regional representative for the United States and the Caribbean, describes it as a crisis ‘on the scale of Syria’.

The situation continues to worsen, with inflation reaching 80,000 per cent in 2018. In early March, a nationwide blackout crippled Venezuela’s power supply, plunging much of the country into darkness for several days. The situation exacerbated already chronic shortages of water, food and medical supplies, with difficulties getting international aid into the country.

Fernando Peláez-Pier, a founding partner of Hoet Peláez Castillo & Duque in Caracas and former IBA President, says the blackout, which is still affecting some areas, has paralysed the country. ‘Public hospitals only had 30 per cent of their electricity supply, while many private hospitals closed their emergency services, weren’t able to receive new patients, and some were even forced to evict in-patients.’

More than a million Venezuelans have fled to Colombia, over 500,000 to Peru and 200,000 to Ecuador. A further 300,000 have fled to Argentina, Chile and Brazil.

Fourteen countries have joined forces to form the Lima Group, which supports democratic transition in Venezuela and has donated considerable humanitarian aid to the country. Peláez-Pier says the support in the region and internationally has been ‘overwhelming’. However, he feels more should be done to help the migrants. ‘The countries that have been most affected have been making efforts, but it is definitely a serious social problem,’ he says.


International organisations are under mounting pressure to intervene in the crisis


Several Latin American countries tightened their entry requirements in August 2018 after struggling to cope with the influx of migrants. But, in September, when renewing documentation in Venezuela became increasingly costly and time-consuming, 11 Lima Group countries agreed to allow Venezuelans to enter with out-of-date passports. Some Lima Group countries, like Colombia, have only recently honoured their declaration. ‘The decision by Colombia is a good sign and hopefully it leads to other countries taking the same steps,’ says Michael Camilleri, Director of the Rule of Law Program at the Inter-American Dialogue think tank.

The US, Canada and many European countries have taken the remarkable step of recognising Venezuela’s opposition leader, Juan Guaidó, as President, after allegations that Nicolás Maduro’s re-election was a sham, and attempted to deliver aid to the country. Maduro continues to receive support from a handful of countries in the region – namely Bolivia and Nicaragua – as well as further afield, such as Cuba, China, Russia and Turkey.

Barbara Wegelin is Refugee Officer on the IBA Immigration and Nationality Law Committee. ‘The 2015 refugee crisis was synonymous with Syria,’ she says. ‘If you look at Venezuela, people say it’s an economic issue rather than an armed conflict and people are staying in the region, and so it’s not a crisis – but I think that’s wrong. When several million people feel they have no choice but to leave everything behind to find safety, I think you should call it a crisis.’

As many as 15,000 Venezuelans, many of them undocumented, have fled to the small Dutch-owned island of Curaçao, swelling the island’s population by ten per cent.

Last October, Amnesty International reported immigration raids, indefinite detention and illegal deportation of Venezuelans seeking asylum there and called upon the Netherlands to address these concerns. In February, the Dutch government said it would provide technical assistance with asylum procedures and agreed to make Curaçao a humanitarian hub for Venezuelan aid.

‘The Netherlands is legally responsible for migration issues in its overseas territories. It needs to step up now and support Curaçao and the other islands, but most of all support the refugees in that region, rather than consider this a faraway issue that has nothing to do with Europe,’ says Wegelin. ‘Europe was also ill-equipped in 2015 and most countries are not prepared for massive movements of people who need help.’

Pressure is mounting on international organisations to act. The International Criminal Court has been monitoring events in Venezuela since uprisings in April 2017 and has opened preliminary examinations in the country. The UN sent a human rights team to Venezuela in March and the UN Human Rights Commissioner may visit the country in the coming months.

In 2007, Venezuela severed its ties with the International Monetary Fund (IMF) and the World Bank after clearing its debts in happier economic times. Now all the IMF’s 189 member countries must recognise Guaidó’s leadership before it can consider establishing any kind of financing programme for the country. This will be crucial, as IMF approval could also prompt the World Bank to offer a much-needed financial helping hand.

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Where are they? – new IBAHRI study addresses crime of enforced disappearances



Gaps in international law to address the crime of enforced disappearance, and states’ failings in the search for victims, are highlighted in a new Spanish-language report from the IBA’s Human Rights Institute.

Where are they? International standards for the search for forcibly disappeared persons explains that, although it is a state’s responsibility to investigate until the fate of the victim is known, the focus tends to be on identifying perpetrators. As a result, victims’ relatives often face the huge burden of leading the search for the disappeared.

From over 56,000 cases of enforced disappearances between 1980 and 2017, reported across 112 states, the whereabouts of 45,000 victims is still unknown today.

The study responds to the growing demand for a clear set of international guidelines to support states in the search for victims of enforced disappearances, arguing that existing frameworks are not systematic or detailed. ‘It is crucial that the search for victims goes hand-in-hand with the identification of those responsible, and that there is mutual feedback between the two elements of the investigation,’ it says.

The study also puts forward recommendations to the three specialised bodies that have developed principles and specific obligations for investigating enforced disappearances: the Inter-American Court, the United Nations Committee on Enforced Disappearances, and the UN Working Group on Enforced or Involuntary Disappearances.

The report has been written in Spanish, given the contribution of Latin America to developments on enforced disappearances, as well as the current challenges facing many countries in the region in bringing accountability for the crime. An executive summary is available to read in English, giving an overview of the report and its key findings.

Where are they? International standards for the search for forcibly disappeared persons is available at tinyurl.com/iba-hri-disappear

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Iran: deep concerns for safety of defence lawyers

The crackdown on human rights and defence lawyers in Iran – including the high-profile case of Nasrin Sotoudeh – has been condemned by the IBA’s Human Rights Institute.

In an open letter to the Supreme Leader of the Islamic Republic of Iran, the IBAHRI expresses its concern over the treatment of lawyers and the mounting threats to their professional right to practise.

The letter highlights the cases of two lawyers in the country, Nasrin Sotoudeh and Amirsalar Davoodi.

Nasrin Sotoudeh

Sotoudeh is an outspoken opponent of the death penalty and has also represented women arrested for peacefully protesting against the compulsory hijab law. In March, she was sentenced in absentia to 33 years’ imprisonment and 148 lashes. This is in addition to a five-year sentence received in 2016, bringing her total prison time to 38 years – the highest punishment recorded against a lawyer or human rights defender in recent years.

The IBAHRI’s letter calls the sentence ‘shocking and grossly disproportionate’ and demands her immediate release.

It also condemns the continued detention of Davoodi on arbitrary charges. A lawyer who regularly used his online platform to speak out about human rights concerns in Iran, Davoodi was arrested in December 2018 and charged with crimes against national security. He’s been denied access to legal representation and to his relatives.

The IBAHRI urges Iran’s Supreme Leader to ensure adherence to international human rights laws and principles, particularly the international legal instruments that safeguard the independence of legal professionals.

Read the open letter at tinyurl.com/iba-hri-iran

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UN initiative highlights IBA access to justice report on disabilities

The United Nations Zero Project highlighted the IBA report, Access to justice for persons with disabilities: From international principles to practice, during its annual event in February.

Held in Vienna, the UN event considered innovative models to improve the lives and legal rights of people who experience some form of disability – estimated to encompass 15 per cent of the global population.

The project commended the IBA’s 2017 report, which explores solutions to the justice barriers facing disabled people.

Published in 2017 by the IBA Access to Justice and Legal Aid Committee, the report considers how a rights-based approach can help ensure that justice policy, planning and implementation take appropriate account of the input and needs of persons with disabilities, in line with the UN Sustainable Development Agenda.

Among its recommendations are encouraging better reporting of crimes against people with disabilities, advocating against discriminatory laws and incorporating specialist training within education.

To IBA report is available at tinyurl.com/iba-access-to-justice-projects. For more information on the UN Zero Project, go to tinyurl.com/zerocon

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War Crimes Committee calls for boost to national courts to support international justice

Improving the ability of national courts to investigate and try serious international crimes is the focus of a new report by the IBA War Crimes Committee.

Based on a mapping exercise of the work of 20 organisations, the report examines the capacity building and resources needed to bolster domestic prosecutions.

In particular, it outlines the views on complementarity held by non-governmental organisations, in order to provide useful insight on ways to maximise efficiency when supporting domestic justice efforts.

The need for effective prosecutions by national courts is especially pertinent, says the report, given that the International Criminal Court and other international tribunals continue to be seized of cases, as well as threats by some states to withdraw from the Rome Statute. It argues that the absence of national justice frameworks is a significant driver of impunity for atrocity crimes, such as those committed in Syria and Myanmar.

The report also makes the case for a centralised platform to improve coordination and communication, and avoid duplication or unidentified gaps. Organisations agreed that the platform should be available to a global audience, including states that might find it politically challenging to ask for help.

In the coming months, the War Crimes Committee will proceed with discussions about the proposed platform’s infrastructure, intentions and functionalities.

The report is available at tinyurl.com/iba-war-crimes-committee


America’s border crisis and asylum ban – podcast



President Trump’s controversial ‘asylum ban’ and his relentless push to build a wall are part of an increasingly hostile policy towards immigration. In Global Insight’s latest podcast, leading US legal practitioners consider whether fundamental rights are being threatened and examine the current state of the asylum system.

The ban was imposed last November on those illegally crossing the border from Mexico, but has been blocked for now after a legal challenge. The US Supreme Court also ruled against the ban. While some fear the Trump administration aims to dismantle the asylum system, others argue it needs a radical overhaul.

Assessing the issues are:

  • Chris Hajec, Director of Litigation at the Immigration Reform Law Institute, which filed a Supreme Court amicus brief in defence of the asylum ban;
  • Judy Rabinovitz, Deputy Director of the American Civil Liberties Union Immigrants’ Rights Project, which issued the legal challenge to the asylum ban; and
  • Ghita Schwarz, Senior Staff Attorney at the Center for Constitutional Rights.

Listen to IBA podcasts at tinyurl.com/iba-podcasts-2019

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Digital justice: investment needed as drive for online reform grows

JOANNE HARRIS

At the end of 2018, London hosted the inaugural International Forum on Online Courts. The event was attended by around 200 legal professionals and other stakeholders from over 20 countries, with discussions focusing on the development of online courts.

The launch of the Forum is indicative of how, globally, justice is moving online. Both civil and common law jurisdictions are now experimenting with a variety of tools aimed at speeding up litigation while making courts cheaper and easier to access.

The potential benefits of getting online justice right are huge, cutting cost and time from the dispute resolution process. Getting it right, though, requires substantial investment and stable technology as well as buy-in from the profession.

Many of the reforms being carried out globally are designed to take away some of the fear of using the justice system. Electronic filing (‘e-filing’) for divorce and other small claims is now widespread.

Richard Goodman, Change Director for the UK’s HM Courts & Tribunals Service, reveals that in the days of paper filing, 40 per cent of divorce applications were initially rejected. Since the introduction of the ‘Divorce Online’ system in April 2018, Goodman says the failure rate has plummeted to just 0.4 per cent.

Goodman says the reforms currently under way in the English and Welsh courts began with a focus on litigants in person, with the online offerings to date being predominantly e-filing for divorce, probate and civil money claims.

Tom Price, Co-Chair of the IBA Litigation Committee and a litigation partner at Gowling WLG, acknowledges this focus.

‘The benefits of online justice are perhaps more noticeable for unrepresented litigants, who most reforms are intended to assist. Bringing those processes online into a form consistent with other familiar tasks like paying vehicle tax makes them more familiar and less intimidating,’ says Price.

Andrew Mackenzie, Co-Chair of the IBA Access to Justice and Legal Aid Committee, suggests that technology could increase access to justice, particularly for people in remote areas and those with disabilities. Avoiding a courtroom with challenging physical access, or a journey to court, could benefit many.

Many of the reforms aim to take away fear of using the justice system

‘Online dispute resolution also offers to persons with motor or cognitive impairments the advantage of taking the necessary time to participate effectively,’ he says. ‘Documents can be submitted online, and negotiations between the parties can similarly be conducted via text-based communication, making participation in the resolution process much more convenient and efficient.’

Mark Woods, also a Co-Chair of the IBA Access to Justice and Legal Aid Committee, adds that in his view, online justice is a good thing, although he notes not everyone agrees. But, he says, digital courts could be a step too far.

‘If the factual situation is so simple that artificial intelligence can readily apply the law to it, the reality is that the case will settle with two experienced lawyers negotiating,’ Woods points out.

Some jurisdictions have gone further than offering practitioners digital filing and bundles. In British Columbia, Canada, the recently established Civil Resolution Tribunal resolves small claims valued at less than CAD $5,000, some property disputes and, as of April 2019, motor vehicle accident and injury claims of up to CAD $50,000.

Australia’s Federal Court also has an online court, called eCourtroom, which handles issues such as ex parte applications for substituted service in bankruptcy proceedings and applications for examination summonses, although it has not been used for trials.

Meanwhile, the New South Wales (NSW) government is investing AUD $7m over four years to establish a fully online court, with the Local Court Small Claims Division and the Possession List of the NSW Supreme Court set to be the first to test the system.

Mike Hales, a litigation partner at Minter Ellison, says: ‘In a country the size of Australia, the main benefits of any electronic improvement in the courts is accessibility and costs savings, particularly for those living in remote locations.’

Hales adds that teething problems, especially with e-filing and the variety of systems used by different courts, are diminishing over time.

In the UK, the failure of the Ministry of Justice’s information technology systems hit the headlines in January 2019. Goodman says none of the online services offered to litigants in person stopped working.

‘Courts continued to run up and down the country and hearings continued to progress because of good continuity business planning.’ Though he acknowledges the failure was ‘unacceptable and deeply frustrating for our staff and people who use and work across the justice system’.

‘It is understood these issues related to the existing, aged infrastructure, rather than the modernised systems the court is introducing, but it highlights that the infrastructure can be a weak point and needs continued investment if digitisation is to be a benefit,’ Price says of the IT outages.

Richard Atkins QC, Chair of the Bar Council of England and Wales, backs the general thrust of reforms, but says they need to be supported in the right way. ‘We’ve moved a long way in a relatively short space of time. We need to make sure we don’t run before we can walk,’ he concludes.

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