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The IBA’s response to the situation in Ukraine
On 7 October, the UN Human Rights Council passed a historic resolution to appoint a Special Rapporteur on the situation of human rights in the Russian Federation. The move marks the first time the UN body will examine the rights record of one of the so-called P5 members that hold permanent seats on the UN Security Council.
The resolution outlined grave concerns over the marked increase in the mass arbitrary arrest, detention and harassment of Russian civilians, including peaceful protesters, political opponents, civil society representatives, human rights defenders, journalists and minority groups.
Seventeen Council members voted in favour of appointing a special rapporteur. A spokesperson for the UN High Commissioner for Human Rights (OHCHR) told Global Insight that the resolution sent ‘a strong message from the international community not only to people in the Russian Federation but to those around the world whose human rights have been suppressed and violated.’
Six members – Bolivia, China, Cuba, Eritrea, Kazakhstan and Venezuela – voted against the resolution and 24 states abstained. Among the abstentions were Brazil, India and Mexico, as well as 12 African states. The OHCHR said despite the ‘differing views during the negotiations and voting on the resolution’, that the mandate had been approved by the Council and deserved the ‘full respect and cooperation of all stakeholders.’
Mark Stephens CBE, Co-Chair of the IBA’s Human Rights Institute Council and a partner at Howard Kennedy, believes appointing a special rapporteur to monitor human rights in Russia marks a significant ‘inflection point’ in international relations. ‘There have been unrelenting domestic attacks on human rights in Russia,’ he says. ‘Some of the diminishing human rights protections have aided Russia's war on Ukraine and ongoing violations of the UN Charter. We must ensure that human rights work in Russia can continue. It's vital that victims have a place to turn, and that those who help those victims are part of a world community with irreducible minimum standards and norms.’
Professor Rosa Freedman
Chair of Law, Conflict and Global Development, University of Reading
In April, the UN Human Rights Council suspended Russia’s membership following its continued aggression in Ukraine. On 18 October, the UN published the findings of the Independent International Commission of Inquiry on Ukraine, which concluded that ‘an array of war crimes, violations of human rights and international humanitarian law have been committed in Ukraine.’
The move to appoint a country-specific rapporteur to examine human rights in Russia is hugely significant at this time, says Professor Rosa Freedman, Chair of Law, Conflict and Global Development at the University of Reading and an expert in human rights bodies and the special procedures of the UN Human Rights Council.
‘It’s making a very strong statement that even though the focus is on the war in Ukraine, that there are grave human rights violations going on in Russia itself,’ she says. ‘That statement is very different to suspending Russia from the Human Rights Council. That was a statement being made about Russia's human rights abuses in Ukraine. This is making a statement about the domestic side.’
Sternford Moyo, IBA President and senior partner of Scanlen & Holderness in Zimbabwe, says the creation of this new mandate denotes the severity of Russia’s actions in Ukraine and the willingness of the international community to challenge this aggression. ‘Russia, a permanent member of the Security Council, has seriously abused its power to commit crimes against humanity and to defy the dictates of international law and the rule of law,’ he says. ‘Russia enjoys special powers and privileges including veto power. Unless special measures are taken against it, a lasting impression that those with veto power enjoy impunity will be created.’
Freedman says the resolution also shows the country’s waning influence at the UN. ‘Russia now doesn't have any way of doing what it previously would have done – and what lots of powerful countries do – which is leaning on its allies to make sure that resolutions don't get tabled or don't get passed. This is why we’ve seen the special rapporteur role being created.’
There are significant doubts over whether the mandate holder will be given access to Russia in the current geopolitical climate. Following a rigorous selection and appointment process, a candidate is expected to be approved at the next Council session in late March 2023, meaning they are unlikely to be in office much before early April. In the meantime, Freedman says the OHCHR will be doing everything in its power to ensure the appointed candidate can ‘hit the ground running’.
Freedman believes the new mandate to examine the human rights of a P5 member also marks a significant shift in UN dynamics. ‘What's happened is the Security Council clearly is impotent right now to do anything,’ she says. ‘The General Assembly has really stepped up and the Human Rights Council recognises its role as an intergovernmental body.’
The resolution has also cast a spotlight on the human rights track records of other P5 members, namely China. The day before the vote on the Russian special rapporteur mandate, a resolution to debate China’s mass human rights violations against the Uyghurs and other Muslim groups in the Xinjiang region failed as the country employed its political muscle to have the resolution defeated. Although 17 members voted in favour, 19 voted against the resolution and 11 abstained.
However, Freedman says the debate itself already indicates progress in holding China to account. ‘What China doesn’t want is a debate on the report in the Human Rights Council being live webcast around the world,’ she says. ‘But the fact that this report – which has been many years in the making and many years in the blocking by China – got produced this summer is, again, another step forward in terms of P5 countries receiving scrutiny.’
Image credit: Police officers in riot gear block street during an opposition protest rally in Moscow. Young men hold a flag of Russia. AdobeStock.com
The IBA and the Prosecutor General’s Office (PGO) of Ukraine have signed a Memorandum of Understanding (MOU) on cooperation to ensure accountability for war crimes and other international crimes including those of aggression, genocide and conflict-related sexual violence.
Signed by IBA President Sternford Moyo, IBA Executive Director Dr Mark Ellis and the Prosecutor General of Ukraine, Andriy Kostin, the MOU came into effect on 20 October 2022 and outlines a number of areas for cooperation, such as the access and use of photo and video files as potential evidence of international crimes committed in Ukraine, collected through the mobile application eyeWitness to Atrocities; expert support on international crimes, including the development and implementation of effective investigative strategies (ie, on conflict-related sexual violence); and efforts in collaboration with international partners towards the establishment of an international compensation mechanism aimed at securing full and effective reparations for the harm suffered by Ukraine and the Ukrainian people.
The PGO is a leading institution investigating international crimes and coordinating efforts for the effective documentation of human rights and humanitarian law violations committed during the ongoing armed conflict in Ukraine.
‘Reports of alleged war crimes, and related human rights violations, during the ongoing Russian invasion are on the increase, while investigating and prosecuting such crimes is incredibly challenging’, said Kostin. ‘The Prosecutor General’s Office welcomes the specialised knowledge and wealth of experience the IBA can bring, particularly in the fields of international humanitarian and criminal law.’
The MOU follows a visit by Dr Ellis to Ukraine in September. ‘Both the IBA and the PGO share the aim of investigating and prosecuting crimes of aggression, war crimes and conflict-related sexual violence wherever they may have occurred over the course of this war instigated by Russia’, said Dr Ellis. ‘Sustained collaboration and support are vital for holding the perpetrators of such crimes accountable.’
The International Bar Association’s Human Rights Institute (IBAHRI) participated in a number of events at the 2022 IBA Annual Conference in Miami.
On 31 October, IBAHRI held their Showcase session entitled ‘An attack on human rights globally’. Chaired by Baroness Helena Kennedy KC, IBAHRI Director, the session covered what needs to be done with regard to governments and refugee protection, freedom of expression, the right to protest and many other areas of law fundamental to peace and justice. Panel members included Evgenia Kara-Murza, Project Manager, Free Russia Foundation and Stephen Rapp, US Holocaust Memorial Museum and IBAHRI Council Member.
At the Conference, the IBAHRI co-hosted three panels – ‘Universal jurisdiction and the move of national courts to the forefront of international criminal justice’; ‘Protecting judges in conflicts, revolutions and times of political oppression’; and ‘Judicial mistakes and accountability: can the judiciary breach the rule of law and, if so, what are the consequences?’.
On 2 November, the IBAHRI led a session entitled ‘The safety of journalists and the problem of arbitrary detention: a conversation hosted by the High Level Panel of Legal Experts on Media Freedom’. The event discussed the work carried out by the High Level Panel and discussed the existing state approaches respecting consular assistance for journalists at risk abroad, and proposes a new paradigm of justice and accountability.
The International Bar Association’s Human Rights Institute (IBAHRI) took part in this year’s 8th World Congress against the Death Penalty on 17 November. The IBAHRI co-organised a side event with the Paris Bar and the German Bar Association called ‘Roadmap to abolition: What role for bar associations?’.
The open discussion covered wide-ranging topics including how bar associations in both retentionist and abolitionist countries play a vital role in moving towards and achieving universal abolition. The panel explored how, through lawyers’ first-hand insights into issues and limitations in criminal justice systems that undermine access to justice and the right to a fair trial, bar associations can provide an authoritative and persuasive voice in calling on governments to abolish the death penalty in both law and practice. This can include by adopting an institutional policy position against the death penalty, taking an active role in national abolition campaigns and/or supporting access to justice for capital punishment cases.
The 2022 IBA Award for Outstanding Contribution to Human Rights has been bestowed upon lawyer Jiang Tianyong for his extraordinary dedication to defending human rights in the People’s Republic of China. For over a decade he has represented Chinese dissidents and activists; victims of HIV contamination through blood transfusions; Falun Gong religious practitioners; those affected by illegal land misappropriation and those facing discrimination due to health status, gender or age.
The award was announced during the SPPI Awards breakfast on 3 November, part of the IBA Annual Conference in Miami. In a video address, Tianyong said he was ‘honoured and grateful’ to become the first recipient of the award from mainland China. ‘This is a moment when colleagues around the world get to see the hard work and sacrifice of so many Chinese human rights lawyers’, he said. ‘I believe that defending human rights is part of a lawyer’s duty […] But in China, when a lawyer takes the law seriously, defends clients according to the law and practices human rights enshrined in the law, he or she is regarded as opposing the [country’s ruling] Communist Party and subverting the state power. Such lawyers and their families face constant persecution by the state.’
Tianyong recounted that, in his own case, he has endured years of harassment and punishment – including house arrest, arbitrary detention, torture and prison – by the authorities for refusing to give up on defending human rights in China. Even now, his freedom of movement is limited, with such restrictions preventing Tianyong from reuniting with his wife and daughter in the US. ‘Unfortunately, I’m only one of the many Chinese human rights lawyers who have had similar experiences’, he said. ‘Over the past ten years, human rights in China have further deteriorated [and] more human rights lawyers face arrest.’
Find out more here.
The International Bar Association (IBA), American Bar Association (ABA), Law Society of England and Wales (Law Society) and the Brazilian Bar Association (OAB) jointly held two well-attended events on 10 and 12 November 2022 at the 27th United Nations Climate Change Conference (COP27) in Sharm el-Sheikh, Egypt. The focus of the two sessions was on the role that legal professionals and organisations play in addressing key international challenges posed by the climate crisis. With professional organisations – representing thousands of lawyers – advising companies and governments who sponsor major projects and set climate policy, the panellists discussed the duty of care of legal professionals to advise clients on climate risk and unveil new initiatives. COP27 was the first time that the IBA achieved observer status – a privilege granted to non-members by some UN organisations to enable them to participate in UN activities.
The side events were co-moderated by Lara Douvartzidis, Project Lawyer at the IBA Legal Policy & Research Unit, and speakers included Roger Martella, Chief Sustainability Officer at General Electric and Education Officer of the IBA Section on Energy, Environment, Natural Resources and Infrastructure Law.
The IBA, ABA, Law Society and OAB are planning to hold similar events at COP28, which is due to take place in Dubai, UAE, in 2023.
Watch the recording here.
The second Anti-SLAPP Conference took place in London and online on 28 and 29 November, focusing on the theme of ‘spotlighting solutions’. SLAPPs – strategic lawsuits against public participation – are a type of spurious legal action intended to censor and intimidate journalists and other critics and put huge financial burdens on them in defending themselves.
Organised by the Foreign Policy Centre and Justice for Journalists Foundation, in partnership with the International Bar Association’s Human Rights Institute, the event explored how stronger regulatory action, direct support for those subject to SLAPPs, as well as wider cultural shifts could help make SLAPPs an unattractive choice for those seeking to avoid public scrutiny.
Find out more here.
Whether it’s human trafficking for online scams in Cambodia or the forced labour of the Uyghur population for garment production in the Xinjiang region of China, modern slavery continues globally. Data from the International Labour Organization (ILO), published in September, shows it’s getting worse. More robust legislative measures could help, experts say.
‘The law can do something positive in terms of introducing the tools to increase deterrents but also to eliminate or mitigate root causes,’ says Maria Pia Sacco, Special Projects Officer of the IBA Business Human Rights Committee and a senior legal advisor at RP Legal & Tax in Bologna, Italy.
Under the Sustainable Development Agenda, the UN’s member states have committed to ending modern slavery by 2030. Modern slavery, according to human rights organisation Anti-Slavery International, is ‘when an individual is exploited by others, for personal or commercial gain’. It can include forced labour, debt bondage, forced marriage and human trafficking. In 2021, over 50 million people were thought to be enduring modern slavery, according to the ILO – an increase from 40 million in 2016.
Covid-19, the climate crisis and conflicts are to blame, says Katharine Bryant, Head of Policy and Programs at the human rights group Walk Free. ‘These compounding crises have led to increased vulnerabilities – employment and poverty – and those who are most vulnerable are at risk of being exploited’, she says.
The World Bank estimates that there are between 75 million and 95 million additional people living in extreme poverty in 2022 than there were pre-Covid-19. Legislation that addresses the root causes of modern slavery could make a difference in combatting it, says Sacco, who adds that, thus far, ‘the traditional criminal law approach has proven to be inefficient and ineffective’.
As of 2018, 96 out of 183 countries hadn’t criminalised forced labour as a standalone offence, 133 hadn’t criminalised forced marriage and only 31 had ratified the ILO’s 2014 Forced Labour Protocol, which calls on states to make forced labour a penal offence with adequate penalties. Hong Kong, for example, has no dedicated law against human trafficking while Vietnam has no specific legislation against slavery. The Asia Pacific region has the highest number of people in modern slavery, according to ILO data.
Maria Pia Sacco
Special Projects Officer, IBA Business Human Rights Committee
Even when laws have been put in place, the World Economic Forum highlights that they can be ignored. For instance, in Albania the legal minimum age for marriage is 18 but there are reports of much younger people entering into wedlock.
More positively, international conventions in this area have long been in existence. For example, the Voluntary Principles Initiative’s principles on security and human rights date back to 2000; the ILO’s Declaration on Fundamental Principles and Rights at Work was adopted in 1998; and a resolution for a UN treaty on business and human rights was first adopted in 2014 and is now on its third draft.
The elimination of modern slavery remains far off, however, says Sacco. She calls for policymakers to consider adopting labour, migration and transparency and due diligence legislation that would apply to corporations, given that so much modern slavery takes place within value chains.
Rocío Domingo Ramos, Business and Human Rights Policy and Research Officer at Anti-Slavery International, says that more governments are starting to think about mandatory human rights and environmental due diligence legislation. For example, in October, the UK introduced a national standard to help organisations eradicate modern slavery.
The EU, meanwhile, adopted in February a proposal for a directive on corporate sustainability due diligence, which will ensure businesses prevent human rights violations and environmental harm in their operations. And in 2019, Thailand became the first country in Southeast Asia to ratify the ILO Work in Fishing Convention, which ensures fishermen have formal terms and conditions of employment – a response to reports of enslaved migrants being trapped aboard Thai fishing vessels.
Some governments are also introducing import bans for goods made or delivered with forced labour. The US Uyghur Forced Labor Prevention Act – which would stop the importation of any products from the Xinjiang Uyghur Autonomous Region unless there’s clear evidence that they’re not connected to forced labour – became law in late 2021, for instance.
Legislation such as the modern slavery acts in both the UK and Australia also place some emphasis on the role of corporations. Section 54 of the UK’s law, for example, stipulates that any commercial organisation earning over a certain amount and providing goods or services in the country must produce a statement outlining steps taken during the financial year to prevent slavery and human trafficking from occurring in its supply chains and operations. The focus here is on transparency rather than due diligence though, says Sacco.
Proper due diligence, says Ramos, should consider the risks of a company’s operations in terms of human rights and environmental damage. ‘The objective of this […] is to make sure that companies take all steps that are in their hands to prevent these harms from happening and then, if these harms do happen, mitigate the impact and remediate workers’, she says. Ramos adds that there should also be a legally aligned instrument globally so that there are standardised processes and policies for multinational businesses.
Lawyers can ensure ‘this is not just another tick box exercise for companies’, says Ramos. ‘It's something [that] can really trigger some meaningful change on the ground and in the lives of the people that we’re trying to protect.’ Bryant adds that ‘investors also have an important role here’ and they need to be asking questions around what companies are doing to tackle modern slavery. ‘If we’re talking about where money comes from, that’s another lever we can apply’, she says.
At a practical level, there also needs to be greater access to legal advice for those who have experienced modern slavery, says Kate Roberts, Head of Policy at the non-governmental organisation Focus on Labour Exploitation. In the UK, research from the Anti Trafficking and Labour Exploitation Unit (Atleu), published in October, revealed that 90 per cent of support workers helping survivors struggled to find legal advisers for their clients in the past year. As a result, Atleu is calling for legal aid to automatically be made available for victims, with immigration legal advisers working on trafficking and modern slavery cases to be paid on an hourly basis.
Image credit: EKKAPON/AdobeStock.com