American presidency: ‘asylum ban’ just one facet of an all-out assault
Michael Goldhaber, IBA US Correspondent
At the end of November – just 11 days after the United States imposed an ‘asylum ban’ on those who cross the border from Mexico between legal ports of entry – a San Francisco federal district judge granted a temporary restraining order, halting the ban nationwide.
Judge Jon Tigar found the ban at odds with the Immigration and Nationality Act provision that those arriving in the US, ‘whether or not at a designated port of arrival’, may apply for asylum.
President Trump says that, while migrants are free to apply for asylum, he has the discretion to reject them.
The Departments of Justice and Homeland Security called the judge’s ruling ‘absurd’ and vowed to defend the ‘legitimate and well-reasoned exercise of authority to address the crisis at our southern border’.
Lawyers for the plaintiffs say the border ‘crisis’ has been artificially created to justify a sustained assault on the asylum system. ‘What we’re seeing is an attack on asylum,’ argues Judy Rabinovitz, Deputy Director of the American Civil Liberties Union Immigrants’ Rights Project. ‘Their rallying cry is: “We’re going to do what we can to keep people from coming.”’
Ghita Schwarz is Senior Staff Attorney at the Center for Constitutional Rights. ‘The attack on our asylum system is part of a large-scale attack by the Trump administration. Part of it is racial, and part of it is just cruelty,’ she says. At its current rate, the US will admit just over 20,000 refugees in 2018. The last quota of the Obama administration saw 110,000 admitted.
Last June, then-Attorney General Jeff Sessions reversed Obama-era precedents recognising a right to asylum based on private violence, either by gangs or domestic abusers. The move affected tens of thousands of refugees from El Salvador, Guatemala and Honduras.
‘Domestic violence is rampant in these countries,’ says Rabinovitz, ‘as is gang violence.’ ‘The American Civil Liberties Union has provisionally blocked this policy in the courts. In Grace v Whitaker, the trial judge held that ‘there is no legal basis for an effective categorical ban on domestic violence and gang-related claims’, pending an appeal filed in January to the DC Circuit Court of Appeals.’In April 2018, the Attorney General announced a ‘zero tolerance’ policy for the criminal prosecution of illegal border-crossers – even if accompanied by children. This led to the separation of more than 2,700 migrant children from their parents and widespread international outcry. Two months later, in June, a San Diego federal judge brought an end to family separation, a stance upheld on appeal to the Ninth Circuit. The Trump administration has since abandoned the family separation policy.
Migrant family flees tear gas at the US–Mexico border © Reuters/Kim Kyung-Hoon
Instead, the government asked to indefinitely detain children and parents together. But, in July, Los Angeles Federal District Judge Dolly Gee halted this, calling it a cynical attempt to unravel the 20-year-old consent decree that regulates child detention, known as the Flores settlement.
Flores requires minors to be detained in the least restrictive setting, and has been interpreted as capping their detention at 20 days. Undeterred, in September 2018, the Department of Homeland Security proposed a regulation to permit indefinite family detention by replacing the Flores settlement. Civil liberties groups plan to challenge the new rule after notice and comment. In December 2018, two Guatemalan children died while detained by US authorities.
Meanwhile, the Trump administration has followed a policy, practice and pattern of ‘turning back’ asylum seekers at legal ports of entry, according to the complaint filed in San Diego Federal Court last autumn in Al Otro Lado v Nielsen. US Customs and Border Protection has allegedly manufactured severe bottlenecks at legal border- crossing points by artificially restricting their capacity and adopting a waitlist or ‘metering’ policy.
The incoming Mexican government is reportedly willing to cooperate with a new US policy (though this has been denied by the Mexican government), forcing asylum seekers to stay in Mexico while their cases crawl forward. Were this to happen, vast new refugee camps would spring up. ‘It would be such an extreme radical change in how asylum works that it’s just hard to imagine the President could have the authority to do that in the absence of congressional approval,’ says Scharz.
The immigration court system, responsible for implementing asylum policy, is under pressure to prioritise speed over fairness. Last March, the Attorney General voided asylum seekers’ right to a hearing, and unveiled a raft of reforms limiting immigration judges’ discretion. As of October 2018, each immigration judge must meet an annual quota of 700 cases regardless of their caseload’s complexity.
‘What we’ve seen under the Trump administration is just a very blatant attack in different ways on the independence of immigration courts,’ says Rabinovitz. ‘Immigration courts are supposed to be just clearing out the backlog, adjudicating these cases quickly and getting rid of people. That’s the message. And so if that means dispensing with due process, dispense with due process.’
Atrocity crimes: IBA Hague Office reviews fair trials and access to justice for victims at hybrid tribunals
The rights of the accused and victim participation at hybrid tribunals for atrocity crimes are examined in a new report from the IBA Hague Office.
Produced by the International Criminal Court and International Criminal Law (ICC & ICL) Programme, the report examines the important role of defence and victims’ counsel in ensuring fair trials and access to justice for victims. It focuses on hybrid courts – purpose-built mechanisms with national and international components – and specialised chambers for atrocity crimes.
The report reviews the structures and practices that support effective legal defence for both the accused and victims, and the best practice that should be followed. It also examines the sources of support for counsel, victim participation and future considerations for legal representation at these courts.
‘This is a timely topic because, even as existing institutions, including the ICC, are limited by jurisdiction, capacity or other factors, more accountability processes are being initiated and demanded,’ it says.
Launched in December 2018, during the latest Session of the Assembly of States Parties, the ICC’s oversight body, the report draws on lessons from established hybrids, including the Special Tribunal for Lebanon and the Extraordinary Chambers in the Courts of Cambodia. It also examines mechanisms that combine domestic, regional and international components.
In producing the report, the IBA Hague Office aims to highlight the importance of fully planning for and resourcing legal representation for the accused, particularly where fair trial rights may already be fragile, and also how victims’ legal representation is now an indispensable component for trials for international crimes.
Legal Representation, Fairness and Access to Justice in Hybrid Tribunals and Specialised Chambers can be downloaded at tinyurl.com/iba-hybrid-report
Tunisian judges discuss economic, social and cultural rights at IBAHRI workshop
Judges in Tunisia attended a training workshop on economic, social and cultural rights, organised by the Office of the United Nations High Commissioner for Human Rights, the IBA’s Human Rights Institute (IBAHRI) and the International Legal Assistance Consortium.
Held in the city of Sousse on 11–12 January, the workshop examined the International Covenant on Economic, Social and Cultural Rights, how these rights interact with the 2014 Tunisian Constitution and their practical application in the national courts.
Violations of economic, social and cultural rights, case studies and the quasi-jurisdictional protection mechanisms of the UN and African Union were also explored.
IBA gender equality events support Commission on Status of Women
A range of gender equality issues will be discussed at three events organised by the IBA and partners to coincide with the latest session of the United Nations Commission on the Status of Women.
The IBA Women Lawyers’ Interest Group and the IBA Crimes Against Women Subcommittee are working with the American Bar Association, the African Women Lawyers Association and INAUSA INC to stage the parallel events in New York on 15 March.
Panel discussions will focus on: ‘Gender Mainstreaming in Infrastructure, Services, Social Protection: Global Legal Critique’; ‘The African Woman in Sustainable Development: The Journey to 2030’; and ‘Gender Parity in Sustainable Development: A Global Legal Appraisal’.
The events will be staged alongside CSW63, which takes place in New York on 11–22 March and will be attended by representatives of Member States, UN entities and UN Economic and Social Council-accredited non-governmental organisations. This UN Session will focus on social protection systems, access to public services and sustainable infrastructure for gender equality and the empowerment of women and girls.
IBAHRI contributes to UN Special Rapporteur’s breakthrough report on bar associations
A recent report by the United Nations Special Rapporteur on the Independence of Judges and Lawyers has been heralded as a breakthrough for bar associations.
Diego García-Sayán’s annual report, presented to the UN General Assembly late last year, is the first UN report to examine the role, composition and functions of bar associations in light of international standards and practices.
Building on the UN’s 1990 Basic Principles on the Role of Lawyers, the report underlines the vital role of bar associations in safeguarding the independence and integrity of the legal profession.
The IBA’s Human Rights Institute (IBAHRI), with the support of the IBA Bar Issues Commission, was instrumental in developing the questionnaire on which the report is based, and providing analysis and viewpoints in its stakeholder submission.
The UN report analyses various forms of interference with bar associations’ independence and assesses existing international and regional standards in order to define the common principles for ensuring their independence. It builds on the country visits and communications received by the mandate of the Special Rapporteur over 20 years, as well as information gathered through the questionnaire.
Highlighting good and bad practices, the report concludes with a series of recommendations guiding the establishment and functions of bar associations. In particular, it expands on the dual relationship between states and bar associations.
The Special Rapporteur’s report is available at tinyurl.com/un-bar-report. To read the IBAHRI’s stakeholder submission, go to tinyurl.com/ibahri-bar-submission
Day of the Endangered Lawyer – focus on challenges to Turkey's legal profession
The challenges facing lawyers in Turkey were highlighted by the IBA’s Human Rights Institute (IBAHRI) in an event to mark the 2019 Day of the Endangered Lawyer.
Organised in partnership with The Law Society, the seminar on 24 January discussed the emergency decree laws enacted following the failed coup in Turkey in July 2016, which stayed in place for more than two years. It also examined the lack of admissibility of Turkish cases before the European Court of Human Rights, the specifics of litigating Turkish cases and trial observation in the country.
Held each year since 2010, the Day of the Endangered Lawyer provides a time to reflect on the personal and professional safety of lawyers worldwide who face persecution, prosecution, arbitrary detention, threats, torture and even death as a consequence of carrying out their professional duties.
The IBAHRI chose to focus on Turkey this year due to the widespread arrests, detentions and dismissals of judges, prosecutors and lawyers, and significant concerns over the rule of law, judicial independence and human rights protections.
War Crimes Committee backs International Law Commission’s Articles on Crimes Against Humanity
The IBA War Crimes Committee has put its weight behind the International Law Commission’s 2017 Draft Articles on Crimes Against Humanity.
In response to a consultation by the United Nations Commission, the Committee says the Draft Articles underline the obligations on states to prosecute atrocity crimes and would help lead to a single definition of crimes against humanity. This would enable consistent prosecutions between jurisdictions and improve inter-state legal assistance and cooperation on cases.
The International Law Commission provisionally adopted the Draft Articles in 2017, with a view to developing a future international UN convention on crimes against humanity.
The IBA War Crimes Committee expresses its firm support for the initiative and focuses on strengthening and clarifying key provisions within the text to make the Draft Articles as effective as possible.
It also notes that, in light of the limited capacity of international courts and tribunals, the creation of ‘a legal framework with horizontal application’ recognises the increasingly important role of domestic prosecutions of atrocity crimes, and accords with the principle of complementarity reflected in the Rome Statute.
Download the Comments on the Draft Articles on Crimes Against Humanity at tinyurl.com/iba-war-crimes-comments
Climate justice: French ‘gilets jaunes’ protests provide lessons for countries transitioning to low-carbon economies
France has experienced months of regular clashes between the ‘gilets jaunes’ protestors and police. Since the first national day of protests on 17 November 2018, yellow-jacketed protestors have barricaded roundabouts across the country and damaged property. The protests have hit the French economy and transport system, with motorways closed and hundreds of speed cameras vandalised.
The protests were triggered by a proposed tax rise for diesel and petrol. David Desforges is an environmental lawyer based in Paris. ‘France has promoted the diesel engine for the past 40 years, with favourable tax breaks,’ he says. ‘Then, to implement its energy transition programme, the government changes gear. That was bound to lead to protests.’
The protests also followed French President Emmanuel Macron’s October 2017 reversal of the l’impot de la solidarité sur la fortune, known as the ‘fortune tax’. This was a tax levied on French citizens worth more than €1.3m. Although it affected only around 300,000 individuals, the tax was a symbolic statement of equality.
These changes come at a time when an agricultural crisis sees some French farmers living on less than €300 per month, and nine million people reportedly struggling to make ends meet.
The decision to end the fortune tax has earned Macron the title of ‘President of the rich’. ‘The fact is that there are a lot of people in France who essentially have little or no purchasing power. Macron symbolises inequality in the system,’ says Desforges.
Els Reynaers Kini, Deputy Chair of the IBA Environment, Health and Safety Law Committee and a partner at MVKini in India, agrees. ‘If you look at the tax regime, the poorest are being burdened excessively,’ she says. ‘France has had its fair share of tax scandals, and these people have had enough.’
The gilets jaunes have been supported by some climate change campaigners, who link social justice with climate policy. Meanwhile, some commentators have criticised media coverage of the French protests, suggesting that labelling the protests as a critique of fuel taxes misses the protestors’ broader concerns over inequality.
‘It’s not so much that Macron is introducing environmental goals that’s the problem, it’s that these protestors feel that Macron is asking them to take on the greater burden of those goals,’ explains Reynaers Kini.
The 'gilet jaunes' protests were triggered by fuel taxes but highlight broader inequalities
‘This is not about climate policy,’ argues Catherine Cameron, Director at research and consultancy organisation Agulhas Applied Knowledge. ‘It’s a response to France’s overdue economic restructuring that many European countries grappled with back then,’ says Cameron. ‘Also, France has different challenges when it comes to transitioning to a low-carbon economy because so much of its energy production is based on nuclear, which is already low carbon.’
In December 2018, Macron made a U-turn on the fuel tax. He also announced the minimum wage will increase in 2019 and that he’s looking at other measures to improve the purchasing power of French citizens. There’s even talk of reinstating the fortune tax.
The French are not the first to react angrily to fuel tax rises. In Mexico, the introduction of the ‘gasolinazo’ – a 20 per cent increase in gasoline prices – led to angry protests in 2017. In Australia, a carbon tax drew protests when introduced and was later repealed in 2014, when a new government came to power.
This hints at a problem with on-boarding voters to taxes that are aimed at radically changing behaviours. The gilets jaunes, then, may not be the last word on the subject.
However, the protests might provide some lessons for climate policymakers. ‘There can be no doubt that if countries are transitioning to a low-carbon economy, and they don’t get it right, they will see protest of the same magnitude and flavour as we’ve seen in France,’ says Cameron. ‘Our research found that if you include people in a stakeholder dialogue process you can transition to a low-carbon economy faster and more smoothly.’
The gilets jaunes protests continue to play out on the streets of Paris and the roundabouts of the regions, rather than in the French National Assembly or in the Senate. The dramatic scenes are not only a reflection of the strength of feeling, but could suggest a systemic failure of the democratic process in France.
As Desforges explains, Macron uses ‘legislative ordnances’, which bypass parliament, to implement his reforms more quickly. ‘He is basically viewed as dictating these policies,’ says Desforges.
There’s also an apparent failure of political parties and of trade unions to channel discontent. ‘We are witnessing a risk of wreckage of democracy in the name of referendums, the contours of which remain vague,’ says Desforges. ‘The protestors do not feel represented by Macron, nor by any elected officials, except mayors. They rely on getting their representation through social media.’
In mid-January, Macron launched the ‘great national debate’, a three-month engagement push across France.
As part of the initiative, mayors and residents will be able to organise town-hall meetings and regional citizen conferences aimed at providing more orderly outlets for concern.