Already an IBA member? Sign in for a better website experience
Human rights news analysis - December 2021/January 2022
Climate crisis: claim at ICC to end impunity for destruction of the Amazon
COP26 has refocused the world’s attention on climate action. And the continuing flurry of litigation suggests citizens are now more serious than ever about pressing those in positions of power to address the climate crisis.
On 12 October, Austrian non-governmental organisation AllRise filed a complaint at the International Criminal Court (ICC), accusing Brazilian President Jair Bolsonaro and his administration of committing crimes against humanity for their role in fuelling ‘the mass destruction of the Amazon with eyes wide open and in full knowledge of the consequences’. Bolsonaro denies all wrongdoing.
‘Crimes against nature are crimes against humanity’, says Johannes Wesemann, AllRise’s Founder. ‘AllRise’s submission complements previous complaints against Bolsonaro and hopes it will give the ICC the necessary information to proceed with a preliminary examination. ‘One of the major distinctions is this climatology aspect’, he says. ‘Now, for the first time, we are really able to show scientifically proven data of what impact Bolsonaro and his administration has had on a global scale.’ An ICC spokesperson confirmed it was reviewing the submission and would respond to the complainant.
The latest complaint received the backing of Brazilian advocacy group Observatório do Clima and Dr Friederike Otto, a renowned climatologist. In November, Brazil’s National Institute of Space revealed that deforestation in the Amazon rose to a 15-year high in 2021, making the government’s COP26 pledge to end illegal deforestation by 2028 appear increasingly unattainable.
The ICC prosecutes four crimes – genocide, crimes against humanity, crimes of aggression and war crimes. However, in 2016, the Court indicated in a policy paper that it would expand its focus to prosecuting serious environmental crimes, such as ‘illegal exploitation of natural resources, arms trafficking, human trafficking, terrorism, financial crimes, land grabbing or the destruction of the environment’.
Kate Mackintosh, Executive Director of the Promise Institute for Human Rights at UCLA School of Law, says AllRise’s submission now creates a crucial opportunity for the new Prosecutor, Karim Khan QC, to demonstrate how seriously the ICC views environmental crimes. ‘I hope it means that he sees this as an opportunity to make the Court look relevant and address the concerns of millions of people across the globe’, she says. Mackintosh is an Advisory Board Member of the Stop Ecocide Foundation, which wants to make ecocide the fifth internationally recognised crime under the Rome Statute. In June, she was part of an international panel of legal experts that published a legal definition of ecocide as the ‘unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts’.
Nine countries already have ecocide laws. However, all countries should incorporate ecocide into national legislation, says Leopoldo Burguete-Stanek, Programme Officer of the IBA Environment, Health and Safety Law Committee and a partner at Gonzalez Calvillo in Mexico City. He believes making ecocide an internationally recognised crime would impose an additional ‘legal duty of care’ on states. ‘A universal prosecution of these types of events would allow that, even if a country has a very tolerant environmental legislation, crimes committed in its territory could be prosecuted at the international level’, he says.
AllRise Co-Founder and lawyer Wolfram Proksch welcomes these efforts to prosecute ecocide at the ICC, but says the latest complaint against Bolsonaro highlights the need for courts to act now. ‘We don’t have time to wait for another 10–12 years until the Member States of the ICC would be willing to amend the Rome Statute’, he says. The Office of the Prosecutor was unable to comment on any proposed amendments to the Rome Statute, stating that this ‘falls squarely within the ambit of States Parties under the Court’s founding treaty’.
Proksch believes we must continue to use and test existing laws and legal frameworks to seek justice. ‘We cannot wait for further COP26 agreements that are not enough, where there are no real means to change the situation’, he says. ‘This should be a major signal to the world that we are at the stage where we have to use the last things we have, which is the law at the moment that we have.’
Guillermo Tejeiro Gutiérrez is the Communications Officer of the IBA Environment, Health and Safety Law Committee and a partner at Brigard & Urrutia in Bogotá. He believes we must use all tools at our disposal ‘including those from international criminal law – to fight against all activities that destroy the environment and cause all types of damages’.
In lieu of ecocide being incorporated into the Rome Statute, environmental lawyer Stephen Hockman QC says there’s still a strong argument for establishing a separate international court for the environment. While the Court’s rulings would not be enforceable, Hockman says it would succeed in empowering people to have a say in protecting their environments. ‘It would represent a very significant progress to have rulings by a respected body of judges’, he says. ‘And it’s very likely that they would be a significant weapon in the hands of people within the country in question.’
Header image: Burning of the Amazon rainforest at dusk to increase livestock grazing area and agriculture activities. Area already deforested in the foreground. PARALAXIS/ Shutterstock.com
IBAHRI appeals for legal assistance for Afghan women at risk
Over the past two months, the IBA and the International Bar Association’s Human Rights Institute (IBAHRI) have been working closely with international and domestic partners to provide members of the legal profession with safe passage from Afghanistan.
The IBA played a key role in the evolution of Afghanistan’s legal system. In 2008, in conjunction with local lawyers, the Association helped establish the Afghanistan Independent Bar Association (AIBA) as the country’s first bar association. Following alarming reports of the Taliban’s takeover of AIBA on 23 November, the IBA has been working with international partners to assist the leadership of the now-defunct AIBA in leaving Kabul. The IBA is now working with this leadership on plans to create an AIBA in exile.
These efforts follow a campaign by the IBAHRI to evacuate female judges, lawyers and other vulnerable individuals at risk, including journalists and human rights defenders. Between 30 September and 24 October, the IBAHRI, together with other non-governmental organisations and international and domestic civil society groups, evacuated close to 500 people, including 103 women and their families.
The majority of the evacuees are now in Greece where they have been granted temporary visas to remain in the country for a short period. Many of the women at risk have destinations for their onward travel. However, 70 families have not yet been allocated a permanent residence. The IBAHRI continues to work to identify medium- and long-term safe housing and transport options and ensure that these families find, and are transferred to, a suitable destination. The IBAHRI is also looking to secure fellowships for the judges and lawyers, both in the UK and abroad.
The IBAHRI is seeking lawyers who are willing to assist these families by giving pro bono time to advocate for them in securing passage to their final location.
If you can offer assistance, please contact Afghan.Appeal@int-bar.org
IBAHRI contributes to UN major forum on equal access to justice for all
At the conclusion of the third session of the United Nations Forum on Human Rights, Democracy and the Rule of Law, which was held from 16–17 November 2021, the International Bar Association’s Human Rights Institute (IBAHRI) reflected on its contributions, the key discussions held and the outcomes of the session.
The IBAHRI organised and hosted two side events to the Forum – one on Latin American perspectives on jurisdiction over gross human rights violations and access to justice for victims, and the other on the erosion of the rule of law, democracy and institutional checks and balances in Turkey.
The theme of this year’s Forum was ‘access to justice for all: a necessary element of democracy, rule of law and human rights protection’. The objective of which was to create a platform for exchanging best practices, achievements, challenges and opportunities relating to access to justice.
The Forum was built around the implementation of the UN Sustainable Development Goal 16 (SDG 16), which aims to promote peaceful and inclusive societies with an emphasis on the rule of law, providing access to justice for all and building effective and inclusive institutions.
IBAHRI condemns Israel’s designation of Palestinian civil society groups as terrorist organisations
The International Bar Association’s Human Rights Institute (IBAHRI) has called on the Israeli Government to reverse the Israeli Defense Ministry’s military order, which designated six Palestinian civil society organisations as terrorist organisations. Israel’s Defence Minister Benny Gantz signed the order on 19 October 2021.
In addition, the IBAHRI has strongly condemned reports that mobile phones belonging to Palestianian human rights defenders have been hacked. The reports allege that these hacks have been carried out using Israeli technology company NSO Group’s Pegasus spyware.
IBAHRI Director, Baroness Helena Kennedy QC, said: ‘Palestinian civil society organisations have played a fundamental role in exposing, documenting and investigating human rights violations, allegedly committed by both Israeli forces and/or the Palestinian Authority. The recent alarming events by the Israeli authorities undermine the right to freedom of expression and association, protected under Articles 19 and 22 of the International Covenant on Civil and Political Rights.’
IBAHRI calls for UN action following opening of people’s tribunal on Iran atrocities
In mid-November, the International Bar Association’s Human Rights Institute (IBAHRI) called for the establishment of a UN Human Rights Council (UNHRC) independent mechanism to further investigate the alleged commission of atrocity crimes by Iranian authorities during and following the November 2019 crackdown in the country. The call followed the opening of the International People’s Tribunal on Iran’s Atrocities of November 2019.
Created by a mandate given to a group of renowned international lawyers and human rights advocates by three civil society organisations – Justice for Iran, the Center for Human Rights in Iran and Together against the Death Penalty – the hearings of the International People’s Tribunal ran across four days in London. The Tribunal heard from 45 witnesses, while the roles of 133 government officials were investigated. IBAHRI Co-Chair and Immediate Past Secretary-General of the Swedish Bar Association, Anne Ramberg Dr Jur hc, commented: ‘It is too often the case that a lack of political will to investigate alleged atrocities committed by state actors gives rise to grassroots initiatives to provide a semblance of justice to victims and their loved ones and associates. The IBAHRI welcomes and applauds the International People’s Tribunal […] for stepping into the obvious breach.’
Ramberg added that the IBAHRI urges ‘Member States to call for an end to impunity where it is found that power is being abused and the legitimate rights of a nations’ citizens to peaceful protest have been, and continue to be, attacked’ and that ‘The creation of an UNHRC independent mechanism in relation to Iran appears as such an instance and would be welcome by the IBAHRI’.
The International People’s Tribunal was established as a response by civil society, international lawyers, experts and civilians to circumvent the lack of intention of Iran’s authorities to investigate the widely reported crimes in Iran following anti-government demonstrations.
IBAHRI calls on Turkey to release Osman Kavala
In late October, the International Bar Association’s Human Rights Institute (IBAHRI) called on Turkey’s authorities to release the philanthropist, civil society leader and human rights activist Osman Kavala unconditionally and immediately as per the legally binding decision of the European Court of Human Rights (ECtHR) of over two years ago.
Kavala has been arbitrarily detained for almost four years. On 26 November 2021, a Turkish court further extended his detention. Kavala was initially arrested in October 2017 on charges of ‘attempting to overthrow the government or to prevent it from exercising its functions’. In February 2020, after more than two years in pre-trial detention, he was cleared of the charges levelled against him. He was immediately re-arrested for allegedly supporting the 2016 coup attempt on the grounds of ‘attempting to overthrow the constitutional order through force and violence’. An appeals court later overturned the 2020 acquittals.
The ECtHR has ruled that there was no evidence to raise reasonable suspicion for the charge of overthrowing the government and other charges related to the attempted 2016 coup; that the detention constituted abuse of power for political reasons; and that Kavala should be released immediately. In Kavala v Turkey the ECtHR found that his trial was unfair and that lengthy pre-trial detention violated his right to liberty and security under the European Convention on Human Rights.
IBAHRI commends abolition of the death penalty in Sierra Leone
On 15 October 2021, Sierra Leone’s President Julius Maada Bio signed the Abolition of the Death Penalty Act 2021 into law. The Bill removes capital punishment for all crimes and removes the threat of execution for prisoners who are currently on death row. When signing the law, President Julius Maada Bio said: ‘We today affirm our belief in the sanctity of life.’
IBAHRI Co-Chair and Immediate Past Secretary General of the Swedish Bar Association, Anne Ramberg Dr Jur hc, said: ‘The death penalty will never be a proportionate punishment for any crime that is committed. It is an abhorrent practice that amplifies human rights violations as opposed to deterring crime. The growing number of States joining the abolitionist movement is a testament to this reality.’
European governments under pressure to fully address severity of violence against women
Governments across Europe are being called upon to take gender-based violence as seriously as terrorism.
In the UK, both Her Majesty’s Inspectorates Constabulary and Fire and Rescue Services and the Crown Prosecution Service investigated police responses to violence against women and girls, releasing their final report in September. The report calls for the higher prioritisation of such crimes by forces nationwide, suggesting that ‘ways of working should be informed by other areas of policing, including serious and organised crime and counter-terrorism, in terms of both prioritisation and resource’.
The report lambasts ‘indefensible’ record low conviction rates for sexual violence, as only 1.4 per cent of rapes reported in 2019/2020 resulted in a suspect being charged as of April 2020.
The report was commissioned by the Home Secretary after the murder of a woman by a serving Metropolitan police officer in March 2021. On 30 September, Wayne Couzens was given a rare whole-life sentence for the abduction, rape and murder of Sarah Everard in London in March, for which he used his official police ID to falsely arrest Everard. The judge, Lord Justice Fulford, deemed the abuse of a police officer’s role to be as serious as a terrorist killing, arguing ‘all of these situations attack different aspects of the fundamental underpinnings of our democratic way of life’.
The Court of Appeal confirmed in late October that Couzens has launched an appeal seeking to reduce his sentence.
In early October, the Home Office commissioned an inquiry into Couzens’ conduct and any ‘missed opportunities’ that may have implications for wider policing, and has also sought to tackle the prevalence of gender-based violence in the UK more broadly.
In June, the government released the findings of its two-year end-to-end rape review, which blames the decline in charges and prosecutions on a range of factors, from increased digital data requests to ‘strained relationships between different parts of the criminal justice system’. The government followed up with its 2021 Tackling Violence Against Women and Girls Strategy, which promises increased support for survivors, increased prosecutions and the prioritisation of prevention. But women’s groups have expressed concern about some measures being underfunded, and the strategy being limited in scope.
In September, the European Parliament passed a legislative initiative demanding targeted policies to address all forms of gender-based discrimination using the standards of the Council of Europe’s Convention on preventing and combating violence against women and domestic violence (the ‘Istanbul Convention’).
It calls for online and offline gender-based violence to be treated as a new area of crime under Article 83(1) of the Treaty on the Functioning of the European Union, alongside trafficking and terrorism.
‘Gender-based violence is really normalised. So of course, it would make a difference to give gender-based violence the same priority level as terrorism’, says Charlotte Gunka, speaking in her personal capacity as former Co-Chair of the IBA Crimes Against Women Subcommittee. But she stresses that should the initiative be taken up and implemented, policy announcements must be accompanied by dedicated funding to ensure they can be enforced.
However, support for the Convention is waning in some parts of Europe. In June, Turkey became the first country to formally withdraw. Anne Ramberg, Co-Chair of the IBA’s Human Rights Institute, laments this development, noting that the Convention ‘is the most comprehensive convention in its field’ and the first legally binding instrument on violence against women in Europe.
In July 2020, Poland also announced its intention to withdraw, with the Minister of Justice Zbigniew Ziobro calling the Convention ‘a feminist creation justifying gay ideology’. In Turkey, ministers have made similar claims to justify withdrawing, and have argued that the country’s remaining national laws are sufficient to protect women.
Ramberg tells Global Insight that international and regional protections have a stronger impact on governments and civil society. She says that ‘the issue of violence should not be seen as [a] private or national matter but has clear public or international dimensions. Violence is a structural problem and should be treated as such also in the political and public discourses’.
This summer, the Generation Equality Forum, convened by UN Women, sought to address issues of funding and political will by bringing together governments, corporations and civil society to create a five-year roadmap towards gender equality, which has been backed by $40bn of investments. This Global Acceleration Plan covers a variety of aspects of gender inequality, including gender-based violence, and is due to culminate in 2026.
Its goals include progressively increasing international funding by 50 per cent to women’s rights organisations, activists and movements, and scaling up both survivor-led services those who survived gender-based violence and the implementation of prevention strategies by institutions and organisations.
But while Gunka believes the measures are important and the synergy between civil society, government, the public sector and the private sector is essential, she worries that in the current context of Covid-19, these promises may fall away, as countries prioritise economic recovery, for example.