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Human rights news analysis - June/July 2019

Human rights news analysis - June/July 2019

UN investigators point to brazen cover-up in Khashoggi case


Members of the United Nations team investigating the murder of Saudi journalist Jamal Khashoggi are speaking of a highly sophisticated cover-up operation by agents of the Saudi government, undertaken with the approval of the Kingdom’s Crown Prince Mohammed bin Salman.

‘This wasn’t just taking a scrubbing brush and a bottle of cleaning fluid. This was a very different level of cleaning and the destruction of particles and of DNA and of other material,’ says Baroness Helena Kennedy QC, a member of the UN team who visited Turkey in February and Director of the IBA’s Human Rights Institute (IBAHRI), as she spoke of Saudi efforts to eradicate evidence at the scene of the Khashoggi murder. ‘This is about the destruction of evidence.’

The investigation’s findings will be released to the UN Human Rights Council in June. Agnes Callamard, UN Rapporteur on extrajudicial summary or arbitrary executions, who headed the investigation team, is expected to make a range of recommendations, including ‘for the purpose of a wider formal criminal accountability’.

Kennedy says the UN investigation team witnessed first-hand evidence shared by the Turkish police and intelligence agency. They spoke to journalists who followed the case, met with the Turkish foreign minister, chief prosecutor and justice minister and interviewed Khashoggi’s social contacts, friends and his fiancée, who was waiting for him outside the Saudi consulate where he was killed.

‘We also heard the tapes of the key moments in the consulate and of other communications which added to the evidence, all of which points towards this having been a matter that was certainly orchestrated at a high level,’ Kennedy tells Global Insight. ‘How high is to be resolved but a very high level within the Kingdom of Saudi Arabia.’

Prominent Saudi journalist Jamal Khashoggi had criticised his government and new policies of its then new Crown Prince in a series of articles and social media posts that drew the ire of the ruling regime. After international outcry, Riyadh said that rogue elements within its intelligence agencies carried out the killing and promised full cooperation with the investigation. But both international and Turkish investigators have said the Saudis were stonewalling.

Baroness Kennedy tells Global Insight that Saudi endeavours to wipe out evidence that raises questions about the involvement of Saudi officials potentially at a much more senior level than suggested by Riyadh. ‘[T]he Turkish forensic teams of very high level investigative police were not allowed into that consulate for 13 days,’ she says. ‘In those 13 days serious cleaning operations took place... So there was an interference with the scene of crime for the destruction of evidence and that was after the Prince himself had certainly been contacted. The question is why was that allowed to happen?’

Baroness Kennedy says that top Saudi officers were involved in the operation. ‘We do know that in the cleaning operation, two persons were involved… who were highly qualified scientific officers from Saudi Arabia.’

Baroness Kennedy’s statements come after news broke that the Saudi Crown Prince had sought to hunt and bring back or eliminate Saudi dissidents opposed to his new policies, including Khashoggi.

In response to the Khashoggi murder and international condemnation, the Saudi government sought to keep UN investigators at bay while adopting an aggressive approach.

At a meeting of the UN Human Rights Council in March, Bandar bin Mohammed al-Aiban, head of the Saudi Human Rights Commission, described the international probe as an interference in domestic policy and said that 11 individuals were already facing trial in the Kingdom in connection with the murder. When Interpol issued a red notice to locate and arrest 20 people believed to have been involved in the Khashoggi killing, Riyadh rejected the call.

Saudi Arabia also unleashed media attacks on Callamard, saying, for example, the UN Rapporteur had supported the Arab Spring, which saw public protests against entrenched ruling regimes, and was therefore ‘biased’.

The CIA and a number of Western countries have already publicly said Crown Prince Mohammed bin Salman was behind the killing. His top aid, Saud al-Qahtani, is believed by Turkish authorities to have been in touch with the killers during the operation. Despite the request for his arrest, Qahtani has been spotted in the UAE attending events.

‘The recent news that Saud al-Qahtani is not among the 11 facing trial also raises questions for the international legal community,’ says Sara Elizabeth Dill, Arab Regional Forum Liaison Officer with the IBA War Crimes Committee. ‘From a legal perspective, this case certainly highlights a number of difficulties the world faces when crimes are committed across multiple borders, and when government officials are involved. The nuances of diplomatic immunity should be revisited, as well as means of conducting multinational investigations.’

Callamard has not minced words about what she saw in Turkey either. ‘The murder of Mr Khashoggi was the result of an extrajudicial killing committed in a consulate office on foreign territory. The rights of the victim and his family are at stake, but so too are the rights of other states under international treaties and law,’ says Callamard. ‘Evidence collected during my mission to Turkey shows prima facie that Mr Khashoggi was the victim of a brutal and premeditated killing, planned and perpetrated by officials of the State of Saudi Arabia.’

Baroness Kennedy tells Global Insight that an expanded international investigation would be preferred for real justice in the case. ‘I personally think that you really do need to have a high-level judicial inquiry with very senior judges from around the world who can take this to another level.’

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Sudan, Brunei and Turkey urged to uphold the rule of law

The IBA’s Human Rights Institute (IBAHRI) has issued a series of calls for Sudan, Brunei and Turkey to uphold the rule of law.

Following the ousting of Sudan’s President Omar Al Bashir in April, the IBAHRI called on the army and transitional government in the country to ensure respect for human rights and the rule of law. Sudan’s interim leader, Defence Minister Ahmed Awad Ibn Auf, announced that the army will oversee a two-year transition period until elections take place.

The Institute urged Ibn Auf to release protestors who had been arbitrarily detained immediately prior to the fall of Bashir, and to ensure Sudan guarantees the independence of lawyers and access to justice.

Brunei has been another focus of the IBAHRI, which has condemned the implementation of the Syariah Penal Code in the country. The law permits the stoning and whipping to death of those convicted of consensual same-sex sexual activity, the use of capital punishment for rape and adultery, as well as amputation for robbery.

Many protestors were detained in street rallies against Sudan's President Al Bashir / Image by Lana H Haroun on Twitter

Finally, in an open letter to Turkey’s President, Recep Tayyip Erdogan, the IBAHRI and the Anti-Torture Initiative denounced the conviction of 11 members of the Turkish Medical Association (TMA) Central Council on charges of terrorism and inciting hatred and hostility. It relates to two declarations the TMA published in 2016 and 2018 that were critical of the Turkish authorities.

The IBAHRI’s letter says the prosecutions indicate a worrying tendency by the Turkish government to use terrorist legislation as a means of limiting dissenting speech. It also highlights the adverse impact on the impartiality of the medical profession and the human right to health.

For more information, go to tinyurl.com/ibahri-home

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Film: Is the US Congress protecting rule of law?

The responsibilities of the US Congress to maintain the rule of law were explored in the latest panel discussion in the IBA’s ‘Preserving a free society’ series in Washington, DC. It was held ahead of the release of the long-awaited Mueller Report into Russian interference in the 2016 US presidential election.

Two former members of the US House of Representatives – the Honourable David Skaggs and Secretary Ray LaHood – along with acclaimed scholar Norman Ornstein, considered whether today’s polarised Congress is falling short in protecting the rule of law, and what can be done to reverse its decline.

Presented by the IBA in cooperation with the Woodrow Wilson International Center for Scholars, with support from the IBA Foundation, the series of bipartisan discussions features current and former senior government officials and other distinguished figures.

To watch the event, go to tinyurl.com/iba-preserving

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Business remedies for human rights harms – roundtable discussion

The role of the legal profession in supporting business mechanisms to protect human rights was examined at a roundtable in May.

Organised by the IBA Legal Policy and Research Unit, with participation from the IBA Business Human Rights Committee and Corporate Counsel Forum, the event was held at Clifford Chance in London.

An expert panel comprising corporate counsel and other legal practitioners examined the legal implications of operational-level grievance mechanisms. These voluntary mechanisms enable individuals and groups to raise concerns about adverse human rights impacts that an organisation’s activities may have, and to seek remedy.

The roundtable also provided input to the United Nations Accountability and Remedy Project. The initiative aims to enhance the effectiveness of non-state-based grievance mechanisms in cases of business-related human rights harms.

Email LPRU@int-bar.org for more details

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IBA opens dialogue with the Vatican on decriminalising homosexuality

Representatives of the IBA and its Human Rights Institute met with the Vatican’s Secretary of State in April to seek Pope Francis’ support in decriminalising homosexuality.

At the conclusion of the historic dialogue, Cardinal Parolin said there was ‘much common ground’ between the matters advanced by the delegation and the position of the Holy See, including the need to uphold the essential dignity of human beings and to avoid violence and discrimination.

The 50-strong delegation included senior members of the IBA and IBAHRI, as well as lawyers, politicians, members of the judiciary, academics and representatives of civil society. They highlighted the need for global law reform to address the challenges of violence and discrimination against LGBTI+ people, and for laws that criminalise adult consensual sex to be repealed.

In an address at the meeting, IBAHRI Co-Chair Michael Kirby said: ‘A clear statement from the Holy See would expedite the process of law reform. It would help to overcome the logjam of inertia and timidity of those with the power to effect change.’

Cardinal Parolin agreed to pass on to the Pope what was discussed at the meeting, and also to further the dialogue. The Vatican also reiterated the position of the Catholic Church in defending the ‘dignity of every human person and against every form of violence’.

The IBA stands ready to advance that dialogue, as criminal laws remain in place across approximately 70 countries, negatively impacting civic perceptions of justice and human rights.

For more information, go to tinyurl.com/iba-vatican

In Memoriam: Professor Talbot D’Alemberte

The IBA was deeply saddened to hear that Professor Talbot ‘Sandy’ D’Alemberte passed away on 20 May, aged 85. He was widely respected for his work on international human rights and social justice.

D’Alemberte was honoured with the IBA’s Rule of Law Award in 2006 and was highly influential in the development of the IBA’s distance learning programmes.

As President of the American Bar Association in 1991–1992, after the fall of the Soviet Union, he co-founded a groundbreaking pro bono initiative to enable emerging democracies to create national legal frameworks to protect citizens’ rights. It led to the creation of the Central and East European Law Initiative (CEELI).

‘The audacity of Sandy’s vision was quite extraordinary,’ said IBA Executive Director Mark Ellis, a longtime friend. ‘During its first ten years, this initiative sent over 5,000 volunteer lawyers and judges to countries worldwide. It’s now one of the largest pro bono legal assistance programmes the US has ever undertaken.’

D’Alemberte worked closely with the IBA to set up an international human rights law e-learning course, run by Florida State University and open to IBA student members worldwide. He was also influential in the creation of the IBA’s distance learning certificate with the then College of Law in England and Wales, which has now evolved into the Executive LLM course the IBA runs with King’s College London.

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The Next Big Questions for International Criminal Justice – view film

Some of the major challenges facing international criminal law were explored at the IBA War Crimes Committee’s annual conference, held on 13 April at the Peace Palace in The Hague.

The keynote address was given by Baroness Arminka Helic, a former foreign policy advisor to the UK government, who was a key figure behind the UK’s Preventing Sexual Violence in Conflict Initiative. She underlined the need to continue strengthening international mechanisms to prevent and respond to conflict.

Panel discussions at the event focused on four main subjects:

  • the extent to which corporations can be held accountable for atrocity crimes;
  • whether private actors and investigations are an aid or hindrance to international criminal justice;
  • novel models to fight impunity, with a focus on independent mechanisms set up to deliver justice for Iraq, Myanmar and Syria; and
  • the challenges of prosecuting sexual and gender-based crimes.

Watch recordings of the panel discussions at tinyurl.com/iba-wcc-2019

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Senior judges raise alarm bells over bullying


In early April, the Lord Chief Justice of England and Wales told the House of Lords Constitution Committee that judges should ‘not display behaviour which is unreasonably putting pressure on people’.

This followed earlier warnings he gave in February that ‘little tolerance’ would be shown towards judges who did not ‘behave with courtesy and respect for all who appear in our courts and tribunals’.

Lord Burnett of Maldon is not alone. In January, Justice James Allsop, Chief Justice of the Federal Court of Australia, said judges should be mindful that ‘courts are also workplaces’ and they could face bullying claims under Australia’s Fair Work Act 2009.

‘Whilst, of course, practitioners are not workers of the Court, the reality is that judges influence significantly the working environment in which practitioners spend their time,’ he said. ‘Whether we like it or not, many of us have been guilty at some point of being hurtful or rude or intimidating.’

In February 2018, Lord David Neuberger, former President of the Supreme Court of England and Wales, said there should be greater awareness of bullying across the legal profession. ‘There are a number of people who actually don’t realise they’re behaving wrongly and unless it’s drawn to their attention, they will go on behaving as they are,’ he said during an event hosted by the IBA’s Human Rights Institute (IBAHRI). He added that the involvement of regulators, appropriate complaints mechanisms and ‘training at all levels’ would be necessary to change the ‘culture’ of bullying that permeates the profession.

Justice Michael Kirby AC CMG is Co-Chair of IBAHRI and a former Justice of the High Court of Australia. He says judges must always be wary of overstepping the line. ‘With the type of personality that will show courage in the face of significant public or private power sometimes comes a personality that is not always polite and courteous,’ he says. ‘We need our judges to be strong and to stand up against very powerful interests in our society,’ but this ‘does not condone bullying or excessive unpleasantness.’

Fiona McLeod is Co-Chair of the IBA Diversity and Inclusion Council and former President of the Law Council of Australia and the Australian Bar Association. Each jurisdiction should adopt ‘judicial commissions [that are] under the control of the Courts,’ she says. ‘Referrals to investigation by an outside source might [also] be needed in extreme cases where guidance, coaching and clear guidelines have failed.’

Judges should take the lead in addressing the culture of bullying across the legal profession

In England and Wales, the Judicial Conduct Investigations Office (JCIO) investigates complaints about judges’ conduct. There were 2,147 complaints made against judicial office holders between 1 April 2017 and 31 March 2018, according to the JCIO’s Annual Report 2017–2018. Some 498 of these related to ‘inappropriate behaviour and comments’.

However, the JCIO was unable to confirm to Global Insight how many of these complaints related specifically to bullying. Neither the Bar Standards Board nor the Solicitors Regulation Authority, which also cover England and Wales, routinely record allegations of bullying as a standalone category of complaint. The lack of data and general under-reporting of incidents in many jurisdictions makes it difficult to form a reliable global picture of the impact of bullying on the judiciary or other legal workplaces.

Recent surveys on the issue could help change that. In October 2018, research by the Victorian Bar in Australia revealed that 59 per cent of barristers in the state said they had experienced judicial bullying. Throughout 2018, the IBA conducted a comprehensive global survey on the prevalence, nature and impact of bullying and sexual harassment across the profession.

An upcoming hearing at the Supreme Court of England and Wales will highlight another aspect of the issue: whether judges themselves can fall victim to bullying. In 2015, Judge Claire Gilham brought proceedings in the Employment Tribunal against the Ministry of Justice claiming detriment after exposing excessive workloads and unsafe working conditions at Warrington County Court. She says she was also asked to tolerate bullying behaviour by a more senior judge.

However, her claim was dismissed on the grounds that, as an office holder rather than an employee, she is not afforded whistleblower protection under the Employment Rights Act 1996. Gilham has, nevertheless, succeeded in getting leave to appeal the case at the Supreme Court, which will hear her arguments in June, including whether she is eligible to bring her claim as an employee of the Crown. When approached by Global Insight, the Ministry of Justice and the JCIO declined to comment as the case is ongoing.

Although Gilham’s case is principally about employee rights, she’s determined it will shed light on the pervasiveness of bullying within the judicial system. ‘Stories of judges bullying lawyers and other judges are related internally – and it’s not a gendered issue – but there is great reluctance to examine or even preserve evidence or to acknowledge current problems of this nature,’ she says.

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