Human rights news analysis - Global Insight August/September 2021

Immigration: deterrence measures against asylum seekers threaten refugee protection regime

Jennifer Venis

In early July, the UK’s Home Secretary, Priti Patel, introduced new post-Brexit immigration reforms into Parliament. The Nationality and Borders Bill would enable officers to treat asylum seekers differently based on factors including their route of arrival, potentially criminalising those crossing the English Channel, and have asylum seekers processed offshore, among other changes.

But similar reforms elsewhere have been condemned by human rights advocates, who are concerned about the threat to the rights and protections of asylum seekers and refugees globally as governments push back against territorial asylum systems.

In June, Denmark passed a law enabling the government to outsource asylum claims processing to a country outside the EU. Those in need of protection as refugees will not return to Denmark, but receive their protection in that third country.

It’s not so much how do governments fulfil the rights and obligations in the Refugee Convention, it’s rather, how much can they push the boundaries of these different conventions

Eva Singer
Director, Asylum Department at the Danish Refugee Council

Eva Singer, Director of the Asylum Department at the Danish Refugee Council, fears the policy could lead to rights violations within Denmark due to an increased use of force and detention. Her biggest concern, however, is how Denmark will be able to guarantee rights in a non-EU third country.

‘Not to compare it with the hotspots [in] Greece because it’s very different being on European soil, but there’s this remoteness of the asylum procedure, and the difficulty of having qualified legal and medical assistance, for people to make assessments about vulnerability and so on’, she says. ‘If we see that on EU territory, as we do in Lesbos and Samos, we can imagine how much more difficult that will be in a country outside Europe.’

The Danish Immigration Service shared with Global Insight a letter to the UN Refugee Agency (UNHCR), in which ministers state that Denmark is in talks with potential processing countries and has ‘been very clear about the fact that a possible arrangement regarding the transfer of asylum seekers must be in line with our international obligations.’

But European countries ‘are absolutely not in a position to guarantee anything outside of the EU,’ according to Barbara Wegelin, Website and Communications Officer of the IBA Immigration and Nationality Law Committee and member of the Meijers Committee, the standing committee of experts on international immigration, refugee and criminal law in Europe.

She highlights how migrants attempting to reach the EU via the Mediterranean are instead being driven into the hands of the Libyan coastguard and taken into detention, where ‘we can’t guarantee what type of treatment people are subjected to’.

Wegelin, who’s also a partner at Van der Woude de Graaf in Amsterdam, believes there is a trend towards externalising the asylum system. She points to the EU’s Dublin Regulation, under which the EU Member State that asylum seekers first arrive at is responsible for claims processing. This trend may threaten not only individual rights, but the territorial system of refugee protection itself. The UNHCR has warned that ‘national, unilateral measures which, in effect, deny access to territory to claim asylum at a country’s borders and abdicate responsibility to others, threaten the long-respected refugee protection regime.’

Singer explains ‘there’s a risk that [the regime] will be undermined in terms of lowering the level of what you can do. You will see this quite often, that it’s not so much how do governments fulfil the rights and obligations in the Refugee Convention, it’s rather, how much can they push the boundaries of these different conventions?’

In the UK, the courts have been holding ministers accountable to their obligations, preventing deportations and ordering greater protections for vulnerable asylum seekers in the government’s care after finding violations of human rights in housing and claims processing.  But in Australia, considered the birthplace of many externalisation approaches, the country’s parliament passed a law in May that undermines the judiciary’s oversight of refugee protections.

Part of the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 grants Australia’s immigration minister unchallengeable powers to revoke a refugee’s protection status. It has drawn concern from Australia’s own joint parliamentary committee on human rights. The Bill was drafted after Australia’s Federal Court ruled in September 2020 that indefinite detention without a purpose was unlawful. The government appealed and won, but not before passing the Bill, which critics argue enables indefinite detention when a refugee who cannot be deported has their protection status removed.

A spokesperson for Australia’s Department of Home Affairs told Global Insight that ‘the Amendment Act does not create a system that permits indefinite detention. Rather, it is a safeguard to clarify that detainees are not required to be removed in breach of Australia’s international protection obligations.’ 

But Wajiha Ahmed, Secretary of the IBA Human Rights Law Committee and partner at Buttar, Caldwell & Co Solicitors in Sydney, believes the Bill ‘is working in the absolute opposite direction of the purpose of domestic laws, let alone the international obligations, which are designed to protect people from persecution.’

‘The power that the Minister now has to cancel refugee status undermines the purpose of the adoption of the Refugee Convention into our domestic law in the first place’, she says. ‘This is nothing short of an abuse of power and very worrying times for Australia.’

Ahmed tells Global Insight about a client of hers, who came to Australia as a child, and was recognised as stateless and in need of protection. As an adult, he served a seven-year jail sentence, and due to Australia’s policy of mandatory visa cancellation, instead of returning to his community like a natural citizen upon release, he lost his protection status and was detained – first in Sydney, then Perth, and now on Christmas Island, an offshore detention site. But, as a stateless person, he can never be deported.

Ahmed says the Bill may mean he faces indefinite detention. ‘That’s a 30-year-old man who spent seven years in jail, and it is very difficult for me to know that as of right now, the current state of the law says he cannot ever be released from detention.’

The client told her that on Christmas Island, every night, fellow detainees will reach a state of heightened emotion, and he will be able to hear their distress. ‘He says it has a real impact on your own headspace. […] How can you keep someone locked up with no end in sight?’ 

Wegelin emphasises that ‘the 1951 Refugee Convention is based on the idea that the refugee becomes part of the country that protects them. […] If we’re no longer willing to provide refuge to people in need then it says something about who we’ve become, as a society.’

Image: Ajdin Kamber / Shutterstock


IBAHRI reflects on 47th UN Human Rights Council session

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The International Bar Association’s Human Rights Institute (IBAHRI) has published its reflections on the key outcomes of the 47th Session of the United Nations Human Rights Council (HRC47), which was held from 21 June–13 July 2021. The IBAHRI took part in a number of activities during the Session, including hosting side events and delivering oral statements.

Four civil society organisations partnered with IBAHRI to deliver an oral statement at the Interactive Dialogue with the UN Special Rapporteur on the Independence of Judges and Lawyers on the increased global subversion of judicial independence during the Covid-19 pandemic. The IBAHRI also held a side-event titled ‘Defending human rights lawyers in authoritarian times’, which addressed the most effective strategies in the protection of human rights lawyers and the role the UN has to play in guaranteeing this.

The IBAHRI, alongside six other organisations, also delivered an oral statement during the Interactive Dialogue with the UN Special Adviser on the Prevention of Genocide expressing grave concern about the reports of human rights violations and persecution of Uighur Muslims in Xinjiang, China. The statement called for remote monitoring and an independent investigation into atrocity crimes in the region. The IBAHRI also delivered further oral statements calling for an end to police violence in Colombia and the spread of disinformation during the Covid-19 pandemic.

During the Session, the IBAHRI jointly hosted a report launch side event titled ‘Access to justice as an integral element of the protection of the right to freedom of peaceful assembly’ in support of the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association. Additionally, the IBAHRI co-hosted a side event entitled ‘International media freedom, Impunity and Journalists’ Deaths: the case of Anton Hammerl’ on the continuing impunity for crimes against journalists in Libya.

Read the full summary


IBAHRI announces Clooney Foundation for Justice’s TrialWatch to monitor Pavlov trial

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TrialWatch, an initiative of the Clooney Foundation for Justice (CFJ), will monitor the trial of Russian human rights lawyer Ivan Pavlov (pictured), known for his defence of Russian opposition leader Alexei Navalny’s Anti-Corruption Foundation. Pavlov has been charged with leaking information to the local press about a former journalist he was also defending. He was detained days after the prosecutor’s office announced they wanted to outlaw groups linked to Alexei Navalny, and now faces potential imprisonment and disbarment.

TrialWatch is working in partnership with the International Bar Association’s Human Rights Institute (IBAHRI) on this case – IBAHRI Director Baroness Helena Kennedy QC has been appointed TrialWatch Expert and will assess the fairness of the trial in line with international and regional human rights standards.

The IBAHRI and CFJ call on the Russian authorities to respect Pavlov’s right to a fair trial and to ensure that the prosecution is not an effort to suppress his human rights work.

Over the past decade, Russia has enacted a significant number of laws and regulations to repress freedom of expression and peaceful assembly, with the apparent justification of targeting ‘extremism’. Pavlov is well known for his defence of high-profile clients who have been charged under such laws.

Read more here

Read the article ‘Elections, extremism and extraordinary measures’ on suppression of dissent in Russia in this issue of Global Insight


Statement on China: sixth anniversary of the ‘709 Crackdown’

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The International Bar Association’s Human Rights Institute (IBAHRI), in conjunction with the International Service for Human Rights, Judicial Reform Foundation and Lawyers for Lawyers, has published a statement commemorating the sixth anniversary of the ‘709 Crackdown’ in China.

The 709 Crackdown took place on 9 July 2015, where roughly 300 lawyers and human rights defenders were arrested, summoned or briefly detained. Since then, more lawyers and activists have been detained, arrested, convicted or restricted in their freedom in some form. The statement refers to the ‘vague and overbroad crimes’ such as ‘subversion of state power’, ‘picking quarrels’ or ‘stirring up troubles’ that are resulting in the prosecution or detainment of these lawyers and activists.

The statement urges the government of the People’s Republic of China to uphold the rule of law, respect the UN Basic Principles on the Role of Lawyers and bring an end to the persecution, and has requested for the immediate release of all those who have been unduly detained for carrying out their professional activities and the cessation of the judicial and/or economic harassment of lawyers.

Read the full statement


IBAHRI announces High Level Panel to review trials of political leaders in Myanmar

The International Bar Association’s Human Rights Institute (IBAHRI) announced on 1 July the formation of a High Level Panel of internationally renowned lawyers to review the trials of the political leaders State Counsellor Daw Aung San Suu Kyi and President U Win Myint (pictured) in Myanmar. Through reliable sources in Myanmar, the High Level Panel will conduct a paper review to determine adherence to due process and the rule of law.

The Panel has not been granted access to the court proceedings, following a letter to the Union Supreme Court of Myanmar, which requested either a livestream or a recording of proceedings. The Panel will therefore conduct a review in this unconventional way.

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The Panel of distinguished lawyers includes Dr Mark Ellis, the IBA’s Executive Director, and Baroness Helena Kennedy QC, the IBAHRI’s Director. The Panel will conduct an independent assessment of the trials and be signatory to periodic written reports detailing how the trials conform to due process requirements and internationally accepted norms and principles of natural justice.

Charges against President U Win Myint include breach of the constitution. Charges against State Counsellor Aung San Suu Kyi include breaking state secrecy law, sedition, the illegal import and use of walkie-talkies with her bodyguards and the breaking of Covid-19 regulations. Reports already suggest that their full pre-trial rights have not been granted. Both have made several appearances in court and all cases were adjourned to 5 July. Journalists were not allowed into the courtroom.

The IBAHRI is in a unique position to conduct such work in Myanmar, having facilitated the establishment of the Independent Lawyers’ Association of Myanmar, from 2014 to 2016. The IBAHRI has also released a report on a trial observation conducted in Myanmar into the proceedings taken against four accused who were charged with the murder of U Ko Ni, a prominent lawyer and legal adviser to Aung San Suu Kyi.

Read the full press release


History of eyeWitness to Atrocities app published

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The eyeWitness to Atrocities app has been featured in new article detailing the app’s journey from conception to release in 2015, as well as its current impact on international justice. The article, ‘Bringing war criminals to justice: The story behind the eyeWitness to Atrocities app’ reveals how footage captured through the app has been used in investigations by the International Criminal Court and the United Nations. The eyeWitness app is the first tool to collect, verify, catalogue and protect images to aid efforts in bringing perpetrators of atrocious crimes to justice and was developed following a request from the UK’s Channel 4 News.

IBA President, Sternford Moyo, says, ‘It is always an excellent sign when a project receives unanimous Board consent, as was the case with the eyeWitness project. Everyone recognised the long-term impact this innovative tool could have in aiding victims of atrocities in their quest for justice in a court of law’.

Wendy Betts, Director of eyeWitness, says, ‘We are empowering the actors on the ground who are taking these risks and helping them transform information into something that has greater reach. It is very rewarding to be able to provide a service that’s expanding the potential for affected communities to obtain justice’.

Read the article


IBAHRI condemns forced closure of Hong Kong’s pro-democracy newspaper

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On 25 June, the International Bar Association’s Human Rights Institute (IBAHRI) expressed its deep concern that crippling asset freezes, imposed by Hong Kong authorities, have forced the closure of the pro-democracy newspaper Apple Daily.

On 17 June, Hong Kong authorities raided the newspaper’s offices, arresting five employees and freezing HK$18m (US$2.3m) in assets. It was subsequently confirmed that accounts holding more than HK$500m (US$64m) had also been locked.

IBAHRI Co-Chair and former Justice of the High Court of Australia (1996–2006), the Hon Michael Kirby AC CMG, commented that the freezing of assets ‘has produced for the authorities the desired outcome of muzzling journalists. Freedom of expression […] has been wholly trampled’.

The newspaper’s closure followed the arrest – under Hong Kong’s National Security Law – of Apple Daily’s lead opinion writer, who published under the name Li Ping. Police said that some of Li’s articles, deemed to be acts of foreign collusion, dated back to 2019, before the Law was introduced in June 2020.

Hong Kong’s Chief Executive, Carrie Lam, denied the government’s actions are an attack on press freedom.

Read the press release

Egypt increases use of capital punishment to crush dissent

Karim Ghassan, Cairo

Image: Activists in Brussels protest against executions in Egypt, March 2019. Shutterstock / Alexandros Michailidis 

During the 2011 Egyptian uprising against the rule of former dictator Hosni Mubarak, Mohammed el-Beltagy, an activist who helped organise the protests, recounted an encounter with a then obscure military general named Abdelfatah al-Sisi. The general threatened Beltagy to disband protestors away from Tahrir Square or face the consequences. Beltagy refused.

Now, ten years later, the general is the president of Egypt. Beltagy’s daughter killed during an anti-military sit-in. His only son has been imprisoned and he himself is subject to a Cairo court ruling of capital punishment that cannot be appealed.

The development in Egypt is indeed appalling… it is vital to put strong and long-lasting pressure on all governments that behave likewise

Anne Ramberg
Co-Chair, IBA's Human Rights Institute

Beltagy’s name appeared in a June sentence with 11 others, mostly political dissidents, in the latest in a series of mass trials leading to death sentences that have become all too common in this country. The sentence, which was upheld by the country’s highest court, was part of a mass trial of 739 people who had participated in a sit-in at Cairo’s Rabaa Square in July and August 2013 to protest the military armed removal of the country’s only elected president, Mohammed Morsi, who later died in prison in 2019.

Rights groups say this unabated trend of mass executions has pushed Egypt, which briefly had a brush with democracy and rule of law during the Arab Spring, into a record of human rights violations that are turning the country into the world’s third largest executioner after China and Iran.

‘The development in Egypt is indeed appalling,’ says Anne Ramberg, Co-Chair of the IBA’s Human Rights Institute (IBAHRI) and former Secretary-General of the Swedish Bar Association. Ramberg had warned in an interview with Global Insight late last year that Egypt’s use of executions without much attention from the international community was alarming.

Under current local rules, these 12 men will face imminent execution, often carried out by hanging, within 14 days of confirmation of the sentences. Only the Egyptian president can grant a pardon or commute the sentences.

‘These ruthless death sentences, which were handed down in 2018 after a grossly unfair mass trial, are a stain on the reputation of Egypt’s highest appeals court and cast a dark shadow over the country’s entire justice system,’ said Philip Luther, Amnesty International’s Research and Advocacy Director for the Middle East and North Africa.

The sentence, which cannot be reversed by court, came right after a shocking escalation in the use of the death penalty in April when the Sisi government executed 17 people, including an 82-year-old man, during the holy month of Ramadan all in one day without informing their families beforehand, contradicting Egyptian law which bars executions during religious holidays or celebrations. 

Last year, Egypt executed at least 152 people, the highest number of annual executions on record.  So far this year, at least 71 men and women have been executed. The numbers don’t include those who die under torture or due to harsh prison conditions. The country has at least 60,000 political prisoners.

According to several rights advocates, most of those prisoners are harshly treated behind bars where they are routinely denied clean water, food, blankets in winter, outdoor breaks, physical exercise, and provisions such as books and copies of the Quran. Many have been denied access to their lawyers or even family visits for years.

London-based campaigning legal NGO Reprieve, which acts for those facing death sentences, said in a May report that there have been at least 53 mass trials since 2011, in which a total of at least 2,182 people were sentenced to death including children. ‘Egypt continues to sentence children to death in contravention of both domestic and international law,’ wrote Jeed Basyouni, head of Death Penalty for Middle East and North Africa at Reprieve. ‘At least 17 children have received preliminary death sentences since 2011.’

Opposition and politicians have attempted, but so far in vain, to press governments in Europe and the US to make human rights a crucial part of their relations with the Egyptian government.

In May, the Egyptian National Action Group (ENAG), created by opposition figures in exile, sent written submissions to the EU Commission, asking for human rights to be the centerpiece of EU–Egypt July trade talks. The group requested that new trade agreements included what they called a ‘Canada–style Human Rights and Non-Execution Clauses’ to allow the EU to end trade if Egypt fails to meet international human rights obligations.

In June, some 30 rights groups, including International Commission of Jurists, Death Penalty Focus, Capital Punishment Justice Project, Human Rights Watch and Reprieve, wrote a letter urging the international community to intervene with urgent life-saving measures and convince the Sisi government to freeze the penalty. ‘International intervention can be life-saving,’ the letter said. ‘We are urging the international community to make immediate interventions to publicly condemn the death penalty crisis in Egypt.’

Philip Luther of Amnesty International says that instead of continuing to escalate the use of the death penalty by upholding death sentences ‘following convictions in grossly unfair mass trials Egyptian authorities must immediately establish an official moratorium on executions.’

Ramberg says the international community needs to speak out more forcefully against such abuses. ‘In my view, it is vital to put strong and long-lasting pressure on all governments that behave likewise,’ she told Global Insight. ‘Media has a vital role to play as well as civil society and international community including politicians. All good forces need to act as watchdogs for the rule of law in the protection of human rights wherever these democratic values are threatened. It is necessary [to uphold] the criticism and not permit the atrocities to continue and be forgotten.’