Human rights news analysis - Global Insight June/July 2022
Ukraine: First war crime conviction against Russian soldier
A court in Ukraine has convicted a Russian soldier of killing an unarmed Ukrainian civilian in the country’s first war crimes trial since the invasion began.
The 21-year-old Russian tank commander stood trial on 13 May, accused of shooting an unarmed civilian in the Sumy region in late February. He pled guilty, but his defence lawyer argued that the soldier was following an order and shouldn't be held accountable.
On 23 May, the court ruled the killing was premeditated and that the soldier had knowingly committed a war crime. He was sentenced to life in prison and has 30 days to appeal the sentence.
Prosecutor General Iryna Venediktova says her team is preparing to file more cases, but nobody expected to see a Russian soldier in the dock at such an early stage, let alone a conviction. It comes less than 100 days into the conflict with still no prospect of a ceasefire in sight.
The availability of evidence will have been crucial to getting the case to trial so quickly, says Wendy Betts, director of eyeWitness to Atrocities. ‘It is rare to see a trial taking place in the territory where the conflict is occurring, which highlights the dramatic narrowing of the investigation gap in this conflict compared to previous ones,’ she says.
The trial – which consisted of Ukrainian prosecution and defence counsel and a panel of three Ukrainian judges – had to be relocated to a larger building to accommodate the huge amount of international media interest.
‘It’s important to show that there is a robust system of justice if Russian soldiers are arrested, that they will be treated well and if they have committed crimes, they will be held accountable
Toby Cadman
Co-Head, Guernica 37 International Justice Chambers, London
It’s also cast a spotlight on the challenges of prosecuting war crimes in a country still actively engaged in armed conflict. Sara Elizabeth Dill, a partner at Anethum Global and Treasurer of the IBA War Crimes Committee, welcomes efforts to hold Russia to account. However, she says the speed with which prosecutors brought the case to trial raises significant questions. ‘Swift justice is not necessarily legitimate justice,’ she says. ‘We’re in a situation where things are still developing and information is still coming out. I do have concerns as to what is actually happening in those procedures, what level of due process is being afforded and has there been a legitimate right to the effective assistance of counsel.’
Following the sentencing, Ukraine’s Prosecutor General’s Office released a statement saying the pre-trial investigation was carried out by the Ukrainian security services and that prosecutors presented evidence at trial that included the accused’s machine gun and other forensic findings.
It’s unclear whether the defendant was offered the opportunity to instruct Russian counsel. Viktor Ovsyannikov – a Ukrainian lawyer appointed by the State – has been criticised domestically for representing the soldier. He’s no stranger to controversial trials, having defended former president Viktor Yanukovych, who was eventually convicted of high treason and sentenced in absentia to 13 years in prison.
Ovsyannikov’s appointment reflects favourably on Ukraine’s commitment to ensuring the soldier receives a fair trial, says Toby Cadman, Co-Head of Guernica 37 International Justice Chambers and Communications Officer on the IBA War Crimes Committee. ‘He's obviously a very professional lawyer and it's important that the process has integrity and that you have both sides being represented,’ he says.
Dill says the politically charged environment makes it even more imperative that Ukraine provides robust trial proceedings for all defendants. ‘Every conflict has war crimes and atrocities committed by both sides and we, unfortunately, frequently have victor's justice, where there’s popular opinion as to who should be prosecuted,’ she says. ‘That’s even more reason why we need to ensure that the international community engages in trial monitoring and investigations and overseeing what is happening to make sure that all defendants are afforded all the rights due to them under the law, whether we like them or not.’
While it’s hoped the International Criminal Court could eventually hold senior Russian officials to account, Cadman says this first domestic prosecution of a junior soldier is a key test for Ukraine’s judicial system. ‘It may well have a deterrent effect on soldiers lower down the chain of command,’ he says. ‘That’s not insignificant, but more than anything it’s important to show that there is a robust system of justice if Russian soldiers are arrested, that they will be treated well and if they have committed crimes, they will be held accountable.’
Cadman has been part of an international advisory council guiding the Prosecutor General on structural legal issues since before the recent conflict. He says there’s growing recognition that Ukraine’s judicial system needs special investigation units with enhanced research and analysis capacity, specific knowledge of sensitive areas like sexual and gender-based violence and the necessary resources to handle multiple ‘paper-heavy cases’ at once.
Oleksandra Matviychuk, Chair of the Board of the Center for Civil Liberties in Kyiv, says Ukraine still needs more assistance on the ground. ‘Ukraine needs help,’ she says. ‘We speak about a time of war. Even the best, well-functioning state bodies couldn't provide an effective response to the huge scope and number of atrocities.’
She points to Ukraine’s recent experience of working with international partners on the joint investigation into the downing of flight MH17 in Ukraine in July 2014. In December 2021, Dutch Prosecutors requested life sentences for three Russians and one Ukrainian on trial in absentia on charges of playing a role in the crash which killed 298 people.
There’s been an outpouring of global pledges to secure accountability for Ukraine. This is welcome, says Cadman, but he warns Venediktova will need to make tough decisions. ‘Unlike international tribunals, resources are finite,’ he says. ‘She is not going to be able to prosecute everything and setting realistic expectations is critical to her office.'
Beyond convictions, Dill says Ukrainian society will also need support to heal the mental scars left by the war: ‘I hope that as swiftly as we are pursuing prosecutions that we are also putting time, energy and resources into the very important mental health needs of the population.’
Image credit: Дэн Едрышов/AdobeStock.com
Podcast: The Ukraine refugee crisis
Russia’s invasion of Ukraine, which began on 24 February, has resulted in the displacement of millions of Ukrainians. The responses taken by governments around the world – such as the activation of the Temporary Protection Directive by the EU – and the challenges being faced have prompted questions around how best to assist displaced people, while the situation has also highlighted the continuing plight of refugees from Afghanistan and other crisis zones.
This Global Insight podcast explores the unprecedented reaction to the plight of Ukrainian refugees and the need for a coordinated, compassionate international response, and assesses the situation for displaced people from other conflict zones, such as Afghanistan. Discussing these issues are:
- Matt Saltmarsh, Head of News and Media for the UN’s refugee agency, UNHCR;
- Greg Siskind, Vice-Chair of the IBA Immigration and Nationality Law Committee and a founding partner at Siskind Susser in Memphis; and
- Alex Stojicevic, Refugee Officer of the IBA Immigration and Nationality Law Committee and founding and managing partner of MKS Lawyers in Vancouver.
Accountability for mass atrocities report launched
The IBA has collaborated with the University of Oxford’s Institute for Ethics, Law and Armed Conflict and the Simon-Skjodt Center for the Prevention of Genocide of the United States Holocaust Memorial Museum to launch a new report: Anchoring Accountability for Mass Atrocities: The Permanent Support Needed to Fulfil UN Investigative Mandates.
From Syria to South Sudan, and most recently Ukraine, UN investigative mandates both establish the truth by gathering evidence of potential international atrocity crimes, and help lay the foundations for future accountability. The report is the result of a two-year study and presents two potential models that could be used to both build and better support the UN’s investigative capacity. The study reveals that much can be learned from the three UN independent investigative mechanisms, and that effectively and efficiently supporting accountability moving forward requires seizing on the lessons learned and investment made to build permanent investigative support capacity.
The report was launched on 19 May at the United Nations Office in Geneva, Switzerland. Speakers included Stephen Rapp, Council Member, IBA's Human Rights Institute (IBAHRI); Federica D'Alessandra, Section on Public and Professional Interest Representative to the IBAHRI; and Sareta Ashraph, Co-Chair, IBA War Crimes Committee.
Threats to human rights in Sri Lanka
The International Bar Association’s Human Rights Institute (IBAHRI) and the Bar Human Rights Committee of England & Wales (BHRC) have issued an open letter to UK Foreign Secretary, Liz Truss, in support of the Bar Association of Sri Lanka urging Sri Lankan authorities to commence ‘an open and genuine dialogue with peaceful protesters, human rights defenders and civil society’ to promote the rule of law as economic crisis and unrest deepens in Sri Lanka.
Reports indicate that to date, nine people have been killed and more than 200 people have been injured in Sri Lanka during anti-government protests.
The letter was signed by BHRC Chair Stephen Cragg QC and IBAHRI Director Helena Kennedy QC.
IBA holds ICC Moot Court Competition across May
The three-week IBA International Criminal Court (ICC) Moot Court Competition ran across May, with the final round taking place on 27 May and being streamed live via the ICC’s website. The competition, organised by the Grotius Centre for International Legal Studies of Leiden Law School, saw 76 student teams from 42 countries take part in a simulation of ICC proceedings, acting as counsel for the prosecution, defendant or victims. Almost 500 legal experts volunteered their time either scoring memorials or judging the oral rounds.
The competition is designed to enhance law students’ knowledge of the Rome Statute – the treaty that established the ICC in 2002 – and the proceedings of the Court. Each year, the competition aims to create a moot problem that illustrates relevant and pending issues before the ICC. Students are assessed on their pleading structure, knowledge and use of rules and principles of law, persuasiveness and rebuttals.
During the competition’s online opening ceremony on 8 May, Judge Silvia Fernández de Gurmendi, President of the ICC’s Assembly of States Parties, spoke of the need for the ICC to ‘demonstrate its worth’. Her speech touched on issues related to the contemporary relevance of the Court, its governance and gender equality.
Hailing the importance of the competition, Judge de Gurmendi said that the ‘interest and participation of the younger generation is exactly what we need to promote the rule of law and the course of justice’.
The opening ceremony also featured remarks from IBA President Sternford Moyo; IBA Executive Director Dr Mark Ellis; Dr Carsten Stahn, Professor of International Criminal Law and Global Justice at Leiden University; and Professor Michael P Scharf, Dean of Case Western Reserve University School of Law and Chair of the IBA ICC Moot Court Competition Board of Advisors.
View the opening ceremony here and the full press release here.
Human Rights Law Committee podcast series: Torture A–Z
This Human Rights Law Committee podcast series on torture looks 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.
Two episodes are currently available to stream:
- A–C: This 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’; and
- D–F: Deprivation; the exclusionary rule; and forensics. This episode includes an interview with the distinguished Argentinian jurist and activist, Professor Juan Méndez.
High Level Panel of Legal Experts on Media Freedom marks World Press Freedom Day 2022
On 3 May – World Press Freedom Day – the High Level Panel of Legal Experts on Media Freedom (the ‘Panel’) participated in a number of activities to highlight the grave challenges facing the press globally and to showcase its recommendations to the Media Freedom Coalition.
The Panel, the independent advisory body of the Coalition and to which the IBA’s Human Rights Institute serves as Secretariat, released a short film to mark the occasion, which can be viewed here. Two members of the Panel, Justice Manuel José Cepeda Espinosa and Dario Milo, published a thought piece on the recent landmark El Universo judgment from the Inter-American Court regarding criminal defamation.
At a UNESCO conference in Uruguay on 3 May, the Panel hosted the session ‘SILENCED – Democracy, Journalism and Censorship in the Digital Age’. Members of the Panel spoke at both this session and others at the Conference, and recordings are available to view online.
See the full press release on the Panel’s activities here.
Abortion rights: Leaked opinion suggests US Supreme Court will overturn 50 years of precedent
On 2 May, a draft majority opinion showing that the US Supreme Court intends to overturn 49 years of a constitutional right to abortion was leaked to the public.
The opinion on the case before the Court, Dobbs v Jackson Women’s Health Organization, reads: ‘The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision’.
It denies that abortion is protected by the right to privacy or by the Due Process Clause of the 14th Amendment, because ‘any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty”’.
With the intention of returning the decision on the right to abortion to state legislatures, the opinion dismisses arguments highlighting the importance of this right to women’s health and participation in democracy. ‘The effect of the abortion right on society and in particular on the lives of women’ is ‘hard for anyone – and in particular, for a court – to assess […]’, it claims.
But human rights law is clear on the answer. ‘A woman’s bodily autonomy is an inalienable right in international human rights law,’ says Mark Stephens CBE, Co-Chair of the IBA’s Human Rights Institute. ‘Denying access to health services that only women require, including abortion, is an example of gender-based discrimination, and can constitute gender-based violence, torture and/or cruel, inhuman and degrading treatment.’
‘If the legal right of millions of women in the US to have a safe abortion is reversed, that would be contrary to settled law and result in a direct assault on the legal rights, dignity and lives of women’, he adds.
The Court’s Chief Justice John Roberts confirmed the document’s authenticity the day after the leak but emphasised that the draft ‘does not represent a decision by the Court or the final position of any member’ on the case, in which Mississippi has asked the Court to allow it to ban abortion after 15 weeks’ pregnancy.
The final verdict in Dobbs is expected in June, and although justices’ votes could change, this opinion is reportedly backed by a 5-4 majority.
The 98-page draft opinion written by Justice Samuel Alito argues the two Supreme Court rulings underpinning the right to abortion pre-viability – before a foetus could survive outside the womb, around 24–26 weeks – must be ‘overruled’.
The 1973 ruling in Roe v Wade found that right through the constitutional right to privacy and created a trimester-based framework to block most restrictions on pre-viability abortion. Later, in Planned Parenthood v Casey in 1992, the Court partly affirmed Roe but reduced its limit on regulations to only require that they not impose ‘undue burden’ on pre-viability abortion access. The draft Dobbs opinion determines Roe to be ‘egregiously wrong from the start’, ‘exceptionally weak’ and ‘unfocused’, derides Casey’s ‘implausible’ claims and deems its ‘arbitrary’ test ‘unworkable’.
Akila Radhakrishnan is President of the Global Justice Center, which works globally to further reproductive rights and justice. She says the opinion ‘fervently’ rejects any recognition of gender-based rights, and ‘if a notion wasn’t deeply entrenched in the Constitution and in the minds of those who wrote it, there’s the idea that those are not legitimate rights anymore’.
Although the draft opinion denies that it could ‘be understood to cast doubt on precedents that do not concern abortion’, rights advocates fear it threatens a swathe of rights.
David Janovsky, Program Manager and an analyst for the Constitution Project of the Project on Government Oversight, says ‘there’s a notion that rights that have not been explicitly mentioned in the Constitution and Bill of Rights and that are not deeply rooted in the nation’s history are perhaps now up for grabs because of the reasoning articulated in this draft’.
He adds, ‘to the extent that the draft opinion indicates that those kinds of rollbacks are now on the table, that is very troubling’.
The draft’s final section creates a new standard for abortion regulation, enabling restrictions for ‘legitimate reasons’ and claiming courts cannot ‘substitute their social and economic beliefs for the judgment of legislative bodies’.
Laws regulating abortion would be entitled to a ‘strong presumption of validity’, sustained ‘if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests’, which include ‘respect for and preservation of prenatal life at all stages of development’.
If this opinion becomes the Court’s verdict, 26 states are certain or likely to ban abortion, according to Guttmacher Institute analysis. Twenty-one of these have ‘trigger’ laws or constitutional amendments enabling them to ban abortion almost immediately if Roe falls.
Even while Roe and Casey stand, state legislatures have introduced targeted regulations of abortion providers that force their closure, banned certain abortion procedures and required that providers and patients follow processes not backed by science. States like Texas and Oklahoma have avoided judicial scrutiny by introducing pre-viability bans enforced by civilians.
‘On thing to watch if Roe is overturned is the criminalization of abortion and where states go with that,’ says Matt Kaiser, Vice-Chair of the IBA Criminal Law Committee and a partner at KaiserDillon. ‘Broadly speaking there are two things to watch: whether states criminalize providing or facilitating an abortion and, separately, whether states criminalize receiving an abortion and what exceptions or defenses are available to a person who is being prosecuted for receiving an abortion.’
For Kaiser, it would be remarkable if a state were to make it a crime to receive any abortion, including to save the life of the mother or in cases of incest, ‘but we’ll have to see how aggressive states want to be,’ he says.