Human rights news analysis - Global Insight February/March 2022

Belarus: the human cost of the crackdown on dissent

Ruth Green,IBA Multimedia Journalist

An escalating crackdown on civil society following 2020’s disputed presidential election in Belarus – which saw Alexander Lukashenko claim victory – has already provoked international sanctions. Now, the country’s continued attacks on fundamental freedoms are exacting a significant human cost, as a migrant crisis unfolds on the country’s border with Poland.

In June 2021, President Lukashenko rejected EU calls to stop the flow of illegal migrants to the country’s border with the EU. This followed global powers imposing more sanctions against Belarusian officials in response to the removal and arrest of opposition journalist Roman Protasevich, from a grounded plane in Minsk.

A stream of migrants has flooded into Belarus since August after the government relaxed visa requirements for certain countries. By November, thousands of refugees, mainly from Iraq, Syria, Yemen and Afghanistan, were stranded at the Belarus-Poland border. Many became embroiled in violent clashes with Polish police. At least nine migrants died due to freezing conditions and a lack of humanitarian aid.

The repercussions of the crisis have been felt across Europe. In August, the European Court of Human Rights, which does not have jurisdiction over Belarus, ordered Poland and Latvia to provide food, aid and temporary shelter to migrants on the border. Poland, Latvia and Lithuania each declared a state of emergency and constructed razor-wire fences along the border with Belarus. Troops have also been sent from the UK and Estonia to help Poland stop migrants illegally breaching its border.

Pavel Slunkin worked for the Belarus foreign ministry before fleeing the country in January 2021. Now a visiting fellow at the European Council on Foreign Relations, the former diplomat says Lukashenko weaponised migration in retaliation for EU sanctions. ‘Belarus has never been on the routes of these illegal migrants,’ he says. ‘They usually go from the Mediterranean in the south and if you look at the map you understand why. Lukashenko needed to artificially engineer this crisis just to show European countries the price of imposing sanctions and of fighting with him.’

But the migrant crisis prompted Canada, the EU, the UK and the US to announce a fifth package of sanctions on 2 December that targeted companies, tour operators and hotels implicated in the illegal border crossings. Josep Borrell, the Council of Europe’s High Representative for Foreign Affairs and Security Policy, says the crisis is ‘an abhorrent attempt to deflect attention from the regime’s continued disregard for international law, fundamental freedoms and human rights in Belarus.’

Slunkin says this attempt to divide the EU and distract it from Lukashenko’s repressive tactics has failed dismally. ‘While the migrant crisis was ongoing, the main issue on the agenda between the EU and Belarus was migrants – not political prisoners, not falsified elections, not his power, not repression,’ he says. ‘Now, when already thousands of migrants have been brought back to their countries, it seems the EU is coming back to the previous agenda.’

There are an estimated 907 political prisoners currently in Belarus. This includes opposition politicians, journalists and the lawyers that defend them. In December, YouTube blogger and activist Sergei Tikhanovsky received an 18-year prison sentence for his role in organising anti-government protests and inciting social hatred. The trials against Tikhanovsky and others have been criticised for taking place behind closed doors. ‘Belarus needs to re-join the community of free nations and reject autocracy and oppression of its citizens,’ says Hon Justice Michael Kirby, the former Co-Chair of the International Bar Association’s Human Rights Institute (IBAHRI).

The legal profession is particularly at risk under the current regime, says Baroness Helena Kennedy QC, Director of the IBAHRI and Chair of the Belarus International Committee. This committee called on the UN last year to establish a fact-finding mission to examine allegations of human rights violations in Belarus. ‘It's a travesty of a place that is calling itself a democracy,’ says Kennedy. ‘Judges have been captured by the state and therefore do the bidding of the regime and independent lawyers just trying to do their jobs end up being punished.’

At least 36 lawyers have faced criminal and disciplinary proceedings or disbarment since the presidential election in August 2020.

Leading Belarusian human rights lawyer Liudmila Kazak says government efforts to silence dissent are only gaining momentum. ‘The state is gradually getting rid of all those people who, to some extent and in some way, have expressed disagreement with the state’s current policies,’ she says. ‘We see that almost all social strata are currently undergoing such a “clean-up”.’

In November, the Ministry of Justice was granted even greater controls over the legal profession. It now oversees the election of heads of regional bar associations and has the power to dismiss them, while private practice lawyers and law firms are prohibited from representing clients facing criminal or administrative charges. The country’s bar association, the Belarusian Collegium of Lawyers, declined Global Insight’s request for comment on these developments.

Image: Migrants gathered at a logistics center on the Belarusian side of the border with Poland. Djordje Kostic/Shutterstock


IBA appeals to UN for denunciation of Taliban take-over of Afghanistan Independent Bar Association

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In late November the IBA wrote an open letter to United Nations Secretary-General António Guterres, expressing grave concern over the Taliban take-over of the Afghanistan Independent Bar Association (AIBA).

The IBA appealed for the ‘unparalleled voice’ of the UN to publicly denounce the violation of the independence of the legal profession; raise concern about the appropriation of the AIBA database; and condemn the seizure of the AIBA bank account and forfeiture of funds.

On 23 November 2021, the Taliban forcefully broke up a meeting being held in the AIBA office and took control of the Association. The Taliban has also announced that it will incorporate the AIBA into its Ministry of Justice (MoJ). These developments mean that the Taliban now has access to the AIBA database, which contains the personnel and professional records of Afghanistan’s estimated 2,500 lawyers, as well as AIBA staffers and committee members. The Taliban now also controls the non-governmental organisation’s bank account and funds.

IBA President Sternford Moyo, Chair of the IBA Bar Issues Commission Kimitoshi Yabuki and IBA Executive Director Dr Mark Ellis state in the letter that the incorporation of the AIBA into the Taliban’s MoJ has ‘completely compromised the independence of the legal profession in Afghanistan’, and that ‘[t]he ramifications on the Rule of Law, the administration of justice and the further contraction of the rights of women and girls cannot be overestimated.’

The letter states that the AIBA has been stripped of the ‘authority to issue Afghanistan’s lawyers with licences to practice their profession and has demanded that all lawyers that currently hold a licence reapply to the Taliban’s MoJ’, and that ‘those who do not submit applications as directed by the Taliban will be prevented from practising’.

Read the IBA’s open letter here.


Podcast series on torture

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The Human Rights Law Committee has launched a podcast series looking at both obvious and overlooked aspects of litigating and documenting torture, in an ‘A-Z’ format.

Although the obligations under the Convention against Torture are of a jus cogens nature, the scope of these obligations, and the range of physical and psychological torture/cruel, inhuman and degrading treatment, tend to be understood or construed narrowly.

Prohibited practices are regrettably ‘normalised’ through the frequent use of such conduct (eg, prolonged isolation, incommunicado detention or enhanced interrogation techniques) and too often political circumstances lead to courtrooms being infiltrated by the fruits of torture.

The podcast series aims to address these issues – and illustrate the deleterious effects of torture on individuals and society – in a clear and accessible manner.

Leading this project, and featured in the first episode, are Alka Pradhan and Melinda Taylor, Co-Vice-Chairs of the IBA Human Rights Law Committee. Alka is a US human rights lawyer who has represented Guantanamo Bay detainees, civilian drone strike victims and other torture victims. Melinda is an Australian international criminal defence lawyer who has worked on defence cases before tribunals in Rwanda and Yugoslavia and the International Criminal Court, and engaged in prominent human rights litigation concerning torture and arbitrary detention.

The first episode covers arbitrary detention, as both a form of torture and environment which renders individuals susceptible to torture; beatings – physical torture; and ‘confessions and clean teams’.

Listen to the podcast here.


IBAHRI marks Day of the Endangered Lawyer

The International Bar Association’s Human Rights Institute (IBAHRI) marked the Day of the Endangered Lawyer on 24 January 2022 with a webinar entitled ‘Discussion on the UN Guidelines for Lawyers in Support of Peaceful Assemblies’. The webinar was organised in conjunction with several organisations, including the Geneva Bar Association, UN Special Rapporteur on Freedom of Assembly and Association and the Office of the High Commissioner for Human Rights.

A key theme of the event was how legal practitioners can play a role in ensuring the rights of peaceful assembly are respected. The webinar also served as a launch event for the ‘UN Guidelines for Lawyers in Support of Peaceful Assemblies’, which were presented at the 47th session of the UN Human Rights Council.

The Day of the Endangered Lawyer was set up in 2010 to call attention to human rights lawyers who have been threatened and focuses on a different country every year.

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IBAHRI supports CoE vote to launch infringement proceedings against Turkey over failure to release activist

The International Bar Association’s Human Rights Institute (IBAHRI) has welcomed the Council of Europe (CoE)’s decision to vote in favour of launching infringement proceedings against Turkey over its failure to release Osman Kavala, a human rights defender, from arbitrary detention. The decision is in line with a 2019 ruling by the European Court of Human Rights (ECtHR), and as Turkey is a member of the CoE, its failure to abide by the ECtHR’s judgment has caused diplomatic tensions.

IBAHRI Co-Chair and immediate past Secretary-General of the Swedish Bar Association, Anne Ramberg Dr Jur hc, said that the move by Turkey is ‘a great injustice and clearly aimed at dissuading him, and other human rights defenders, from their work’ and that ‘through judicial harassment and manipulation of the justice system public dissent is being silenced’. She also added that ‘through [Turkey’s] actions of curtailing Mr Kavala’s freedom and disregarding the ECtHR ruling, the Turkish authorities are making a mockery of the rule of law’.

If the Court confirms that Turkey has failed to implement its 2019 ruling, the Committee of Ministers may then take additional measures which could include suspending Turkey’s voting rights or membership from the CoE.

Mark Stephens CBE, IBAHRI Co-Chair, has said that ‘Turkey has a legally binding obligation to comply with the ruling of the ECtHR’ and that ‘strong measures’ were required to ‘protect the rule of law which includes the release of Osman Kavala and other human rights defenders’.

Read the full IBAHRI statement here.


Hina Jilani receives 2020 Stockholm Human Rights Award

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Hina Jilani, lawyer, pro-democracy campaigner and civil rights activist, was awarded the 2020 Stockholm Human Rights Award on 6 December 2021 in an online ceremony. Due to the Covid-19 pandemic, the in-person ceremony was postponed and Hina Jilani was instead presented with the award via a livestream. The virtual event also included an interview conducted by IBA Executive Director Dr Mark Ellis.

Dr Ellis said: ‘Ms Jilani’s accomplishments are numerous and ground-breaking, inspiring people beyond her native Pakistan. I am delighted that she has been selected as the 2020 awardee.’

The Stockholm Human Rights Award is bestowed annually by the Swedish Bar Association, the IBA and the International Legal Assistance Consortium (ILAC). The award, which was established in 2009, recognises a person or an organisation’s outstanding services in the support of human rights and the rule of law.

Watch the ceremony here.


New appointments announced to the leadership of the High Level Panel of Legal Experts on Media Freedom

The Rt Hon Lord Neuberger of Abbotsbury has appointed Can Yeğinsu and Catherine Amirfar to serve as the Deputy Chairs of the High Level Panel of Legal Experts on Media Freedom (the Panel). The International Bar Association’s Human Rights Institute (IBAHRI) acts as Secretariat to the Panel, which is an independent body established in July 2019, and comprises a group of 15 leading lawyers and jurists from around the world.

Yeğinsu is a barrister at 4 New Square Chambers in London, and is recognised as one of the UK’s leading lawyers practising in civil liberties and human rights, public international law and in international arbitration and commercial litigation. He also teaches international law at Columbia Law School, Georgetown University Law Center and Koç University Law School.

Amirfar is Co-Chair of the International Dispute Resolution Group and the Public International Law Group at Debevoise & Plimpton. Her practice focuses on public international law, international commercial and treaty arbitration and complex international commercial litigation. She has argued before courts in the United States, and international courts including the International Court of Justice.

The full statement can be found here.

Independent tribunal finds China has committed genocide against Uyghur Muslims

Jennifer Venis

An independent people’s tribunal has found that China has committed genocide, torture and crimes against humanity against the Uyghur Muslims and other Turkic minorities.

The Uyghur Tribunal in London delivered its judgment in early December after 18 months of analysing reports, documents, publicly heard witness testimony and other evidence.

It found the following crimes against humanity were proved: deportation and forcible transfer of population; imprisonment or severe deprivation of liberty; rape, sterilisation and other forms of sexual violence; persecution; enforced disappearances; and inhumane acts.

On genocide, the Tribunal was satisfied beyond reasonable doubt that ‘the PRC [People’s Republic of China], by the imposition of measures to prevent births, intended to destroy a significant part of the Uyghurs in Xinjiang as such’.

To make such a determination under the UN Genocide Convention, the Tribunal had to find that the Chinese government had committed at least one of the five prohibited acts with the intent to destroy the Uyghurs, physically or biologically, in whole or in part.

Key evidence regarding intent came from the ‘Xinjiang Papers’, leaked to the Tribunal in September, which connect senior PRC government figures with policies to ‘optimize’ the ethnic population.

Many experts, the US government and several national parliaments have reached the same conclusion on genocide.

The US Holocaust Memorial Museum’s Simon-Skjodt Center for the Prevention of Genocide meanwhile found in early November that while the intervention in Uyghur births ‘raises legitimate questions about the existence of the intent to biologically destroy the group’, more information is needed. But, while acknowledging the limited availability of verifiable information regarding the treatment of Uyghurs, its report concludes that the information available ‘gives rise to serious concerns that the Chinese government may be committing genocide’.

Such differing findings may not undermine the message of the Tribunal’s judgment – that the international community must act.

The Genocide Convention obliges states to prevent genocide, as well as punish it, explains Aarif Abraham, a barrister specialising in international law and former legal adviser to the Tribunal. It’s when any state learns of a serious risk of genocide – not the occurrence of genocide – that ‘it must use all means reasonably available to bring the situation to an end’.

But, Abraham adds, the enforceability of these obligations is challenging. For example, some governments are reluctant to assume their obligations until a court makes a declaration of genocide.

[The impact] is going to depend on the courage of those who hold the judgment in their hands as to when they’re going to stand up and what they are going to do with it

Sareta Ashraph
Co-Vice Chair, IBA War Crimes Committee

Abraham emphasises this is contrary to international law. ‘It’s the foreign offices, the ministers of justice in states around the world that should be grappling with these questions, and should put in place atrocity prevention mechanisms,’ he says.

China’s position as a global power makes it politically challenging for states to intervene and its government has already blocked a UN human rights investigation in Xinjiang, although a limited assessment of the situation in the region may still be released soon.

Further, China’s position on the UN Security Council and veto power, alongside the jurisdictional limits of the International Criminal Court and International Court of Justice, ensure that the prospects for formal international justice are slim.

‘That’s the vacuum people’s tribunals fill, to test allegations of atrocities in a formal setting with credibility and integrity,’ says Abraham. When a people’s tribunal does find genocide, ‘it’s very hard for states to then avoid obligations to prohibit, prevent and punish.’

China has consistently denied the allegations of atrocities. Following the judgment, a spokesperson for China’s Ministry of Foreign Affairs claimed the Tribunal ‘hired liars to make false statements and falsify evidence, in an attempt to craft a political tool to disrupt Xinjiang and smear China.’

Despite its lack of legal standing, the Tribunal’s judgment has nevertheless been seized upon.

UK parliamentarians have called for, among other things, a full diplomatic boycott of the 2022 Winter Olympics in China, which Australia, Canada, the UK and US have already committed to.

Ultimately, the impact ‘is going to depend on the courage of those who hold the judgment in their hands as to when they’re going to stand up and what they are going to do with it,’ says barrister Sareta Ashraph, who is Co-Vice Chair of the IBA War Crimes Committee.

Ashraph says however that the judgment has legal significance in its own right, due to the unprecedented nature of its findings of genocide on the basis of the prevention of births intended to biologically destroy.

She adds that, socially, the judgment brings the public’s understanding of genocide in line with the legal definition, including by increasing the understanding of how genocidal acts target and affect different genders differently.

In doing so, she says, ‘it means that groups of victims that have been historically marginalised or not made visible in genocide analyses or prosecutions are more likely now to be included.’

The Tribunal expressed some ill-ease at making such a finding, which Aldo Zammit-Borda, Reader in Law at City University and the Tribunal’s Head of Research and Investigation, explains is likely because, ideally, another formal mechanism would have already made such a finding so the Tribunal could refer to pre-existing interpretations of the law.

What’s more, the exact meaning of intent to biologically – as opposed to physically – destroy has not been fully explored.

As Ashraph explains, genocide has primarily been understood and litigated as mass killings intended to physically destroy a group.

For Zammit-Borda, the Tribunal has provided one answer to important legal questions regarding what form the intent to biologically destroy takes and whether the perpetrator is considering the reproductive capacity of the current group or the unborn members of the group, ‘but it will be interesting to see the continued discussion of these areas.’

Baroness Helena Kennedy QC, Director of the IBA’s Human Rights Institute, hopes that IBA members will take up the challenge. ‘As an organisation of lawyers this is a judgment which should be read and debated,’ she says. ‘It is a very considered piece of work by a panel which was led by a distinguished and hugely experienced lawyer.’

Perhaps of greatest importance is the Tribunal’s significance for the victims.

‘So far, the victims have made allegations of huge atrocities, and no state has given them due process or any access to justice,’ says Zammit-Borda. The Tribunal, he says, elevated their voices and gave them access to a limited form of justice.

Speaking at the press conference following the judgment, Dolkun Isa, President of the World Uyghur Congress, said ‘We can only hope that the world takes meaningful steps to end the genocide, crimes against humanity and torture, that the Chinese Communist Party is held responsible for such an atrocity.’

Image: Muslims activists stage a protest rally demanding stop genocide of Uighur Muslims in China, after Friday prayer in Dhaka, Bangladesh, on March 12, 2021 
Mamunur Rashid/Shutterstock

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