UN report: Soleimani drone killing a ‘watershed’ for rule of law
EMAD MEKAY, IBA MIDDLE EAST CORRESPONDENT
A United Nations report has found that the killing of a top Iranian general by a United States drone in January violated international law. It calls for greater legal oversight of armed drones. However, the US said the report justifies acts of terrorism and has also announced that it intends to sell more drones globally.
The report’s focus was the controversial killing of Iranian Major General Qasem Soleimani. His car was hit on 3 January in a targeted US strike near Baghdad International Airport.
‘For the first time, in January 2020, a state armed drone targeted a high-level official of a foreign state on the territory of a third one – a significant development and an escalation,’ says the report, authored by Agnes Callamard, UN Special Rapporteur on extrajudicial, summary or arbitrary executions.
The report describes the killing as a breakpoint in international law. The attack was different from previous cases because they were launched against non-state actors, not on state officials.
‘This is the primary reason the Soleimani strike is considered a watershed change in the conduct of extraterritorially targeted strikes and killing. It is hard to imagine that a similar strike against a Western military leader would not be considered as an act of war against the state launching the strike,’ Callamard argued.
Soleimani was also known for his role in building and maintaining a network of Iranian-backed anti-American militias inside members of the Shiite communities in the Middle East.
Callamard concluded, however, that Soleimani’s killing didn’t meet ‘the legal requirements under all applicable international legal regimes’ – jus ad bellum, international humanitarian law and international human rights law.
At the time, Washington justified Soleimani's killing on intelligence that he was plotting imminent attacks on several US interests across the Middle East. Callamard, however, said that Washington’s report to the UN Security Council about the strike made no reference to Soleimani himself, speaking only of leadership elements of the Iranian Revolutionary Guard Corps, inside which Soleimani headed the elite Quds Force.
In correspondence with US Congress, the administration said that regardless of the threat of further attacks, the ‘series of attacks that preceded the 3 January strike’ sufficiently justified the conduct of self-defence. Callamard saw this as shaky legal grounds for such an operation.
“The targeting of General Soleimani, and the deaths of those accompanying him, constitute an arbitrary killing for which, under international human rights law, the US is responsible
Agnes Callamard
UN Special Rapporteur on extrajudicial, summary or arbitrary executions
‘No evidence has been provided that General Soleimani specifically was planning an imminent attack against US interests, particularly in Iraq, for which immediate action was necessary and would have been justified. No evidence has been provided that a drone strike in a third country was necessary or that the harm caused to that country was proportionate to the harm allegedly averted,’ she said in the report.
‘In light of the evidence that the US has provided to date, the targeting of General Soleimani, and the deaths of those accompanying him, constitute an arbitrary killing for which, under international human rights law, the US is responsible,’ Callamard said.
Federica D’Alessandra is Executive Director of the Oxford Programme on International Peace and Security, and Co-Chair of the IBA Human Rights Law Committee. ‘Pre-emptive self-defence, which has been adopted since 9/11, and that the Obama Administration often evoked to justify lethal drone strikes, has many critics,’ D’Alessandra says. ‘Even if accepted, however, the US has not put forward evidence of Soleimani’s plans that justified such lethal action.’
Meg Strickler is North American Regional Forum Liaison Officer of the IBA War Crimes Committee. ‘I believe that there is much more to the story and that the details of an imminent attack just have not been divulged due to security concerns,’ she says. ‘Callamard acknowledged that international humanitarian and human rights law can provide “diverging answers” on the legal validity of drone strikes, and the one against Soleimani raised “genuine uncertainty as to how to interpret its lawfulness”.’
Strickler says the killing’s legality was clearer under US law, and agrees with the legal argument that it was a targeted killing and a proportional pre-emptive military action against a combatant enemy who had killed, and was planning to kill, Americans. ‘Domestically, President Trump has wide constitutional authority to use military force overseas so long as it is in the nation’s interest or if there is an imminent threat,’ says Strickler.
Officials from the US Department of State's Bureau of Near Eastern Affairs declined to be interviewed by Global Insight. US Secretary of State Mike Pompeo had earlier rejected the findings of the report.
US Department of State spokesperson Morgan Ortagus meanwhile said of the report: ‘It takes a special kind of intellectual dishonesty to issue a report condemning the US for acting in self-defense while whitewashing General Soleimani’s notorious past as one of the world’s deadliest terrorists.’
Callamard’s report highlighted mounting legal challenges posed by the growing use of military drones. Callamard urged governments and the UN to call out any use of force not in compliance with the UN Charter and reject their legal underpinnings. She warned against drone proliferation and said export and multilateral arms control regimes should be placed on their sale.
But, a few days after the report’s release, the Trump administration said it was relaxing arms export restrictions on combat drones in an apparent bid to compete with Chinese and Israeli companies that dominate the drones market.
IBA and IBAHRI condemn US police brutality in wake of George Floyd killing
The IBA and the IBA’s Human Rights Institute (IBAHRI) issued a joint statement on 9 June condemning the police brutality that led to the death of George Floyd and the attacks against peaceful protestors and journalists in the United States. The killing of George Floyd sparked protests in the US and around the world, which called for societal change, improved rights and justice for victims.
Co-signed by IBA President Horacio Bernardes Neto, IBA Executive Director Dr Mark Ellis, IBAHRI Director Baroness Helena Kennedy QC, and IBAHRI Co-Chairs Hon Michael Kirby AC CMG and Anne Ramberg Jur dr hc, the statement called on the US government to address systemic structural inequality and institutional racism. Both entities want to ensure justice for the family of George Floyd, an unarmed Black man who was killed while in police custody, and to provide legal protections for peaceful protestors and journalists. The IBA and IBAHRI support the rights of all citizens to engage in peaceful protest, as protected by the First Amendment of the Constitution of the US.
This statement suggests the following changes to address issues of systemic racism in law enforcement: improved training in citizen constitutional and universal human rights in police academies; increased recruitment of women and people from racial minorities and other communities; and larger communal engagement with police colleges, educators and industrial unions, as potential avenues of internal reform.
The IBA and IBAHRI reassert the statement heard around the globe: Black Lives Matter.
IBAHRI issues statements on latest restrictions in China
On 1 July, the IBA and the IBA’s Human Rights Institute (IBAHRI) condemned the action of the Chinese Mainland legislature as fundamentally objectionable in enacting the new National Security Law in Hong Kong Special Administrative Region (SAR), without sufficient consultation with Hong Kong SAR peoples and institutions.
The statement declared that the new law is: contrary to the norms of international law; incompatible with the rule of law and fundamental human rights; and inconsistent with the Basic Law of the Hong Kong SAR. In addition, the statement raised concerns about the non-existent ability of legal professionals to review the compatibility of the law with Hong Kong SAR’s constitutional framework, the opaqueness of the criteria set out in the law, as well as its lack of safeguards and the purported imposition of retrospective legislation.
The IBA and IBAHRI emphasised that the law is being used to curtail the democratic freedoms of the semi-autonomous territory and raised concerns over the speed at which the sweeping law has been enacted and that it has been implemented without full and uninhibited consultation with the people who are affected by it.
The IBAHRI also joined several non-governmental organisations on 14 July in signing a statement that condemned restrictions on freedom of expression in China, in particular for citizen journalists, human rights advocates and lawyers. The statement called for the upholding of free media, destigmatisation of lawyers in media and encouragement of free speech in journalism in China, including Uighur and Tibetan regions and Hong Kong.
The International Service for Human Rights delivered the statement at the 44th session of the United Nations Human Rights Council, on behalf of the non-governmental organisations, including the IBAHRI, the Committee to Protect Journalists, the Law Council of Australia and Lawyers’ Rights Watch Canada.
Read the full statement on the National Security Law
Read the freedom of expression statement
IBAHRI celebrates 30th anniversary of UN Basic Principles on the Role of Lawyers
The IBA’s Human Rights Institute (IBAHRI) is celebrating the 30th anniversary of the United Nations Basic Principles on the Role of Lawyers (UN Basic Principles) and the IBA Standards for the Independence of the Legal Profession (IBA Standards), which are landmark instruments recognising the significance of the independence of the legal profession as an essential component of a democratic society.
IBAHRI Co-Chair Michael Kirby AC CMG said that the UN Basic Principles and IBA Standards ‘emphasise the obligations of states to protect lawyers from any form of attack, harassment or pressure,’ and that the anniversary was the perfect opportunity to ‘think more fully on the importance of lawyers, with respect to protection of human rights, maintaining the rule of law and functioning of democracy in general.’
The IBAHRI has launched a series of initiatives to mark the occasion, which highlight the pivotal role that lawyers play in access to justice. The initiatives include an oral statement made at the 44th UN Human Rights Council session, a call for action statement urging UN Member States to recognise, uphold and protect the role of lawyers and the publishing of several collaborative resources that seek to support lawyers worldwide.
In memoriam: John Lewis
The IBA was saddened to learn of the death of key civil rights leader and US congressional representative John Lewis on 17 July. Lewis was one of the ‘Big Six’ leaders of groups who organised the 1963 March on Washington for Jobs and Freedom. He served in the US House of Representatives for Georgia’s 5th congressional district from 1987 until his death, and in 2011, he was awarded the Presidential Medal of Freedom.
Fondly recalling Lewis’ speech at the annual dinner of the IBA Law Firm Management Committee during the Annual Conference in 2016 in Washington, DC, the Committee’s former Co-Chair, Abe Schear, said: ‘We were privileged to hear from Congressman John Lewis. Just before the national election, when he campaigned for Hillary Clinton, Congressman Lewis thanked the 90 attendees for their attention and encouraged all of them to go home and use the law to the advantage of their societies, to better each country. Congressman Lewis reminded us that lawyers had so often helped him get out of jail and that what we did was important. The standing ovation, replete with tears, made this a very memorable evening.’
John Lewis, US House of Representatives, Washington, DC. February, 2006.
eyeWitness to Atrocities marks fifth anniversary combatting impunity
eyeWitness to Atrocities, the mobile camera app supporting human rights defenders around the world in seeking justice for the worst international crimes, has marked its five year anniversary.
The app was launched by the IBA with support from LexisNexis Legal & Professional in June 2015. Since then, the app, with technical support from the eyeWitness team, has enabled courageous human rights defenders, including activists, journalists and lawyers, to capture more than 10,000 photos and videos of human rights violations. Over 70 human rights organisations across 25 countries have also received training as part of this project.
To date, the work of the eyeWitness team includes: aiding the conviction of militia leaders of crimes against humanity in the Democratic Republic of Congo; supporting allegations of war crimes in The Gambia; and denouncing atrocities in the Middle East.
‘eyeWitness has empowered many to hold perpetrators of horrific human rights violations accountable in their own communities,’ said Wendy Betts, Director of eyeWitness.
The eyeWitness app is free and simple to download on a smartphone. The app automatically captures verifiable metadata (location, date and time) when images are taken. After capturing images, the user presses a button on the phone to send the items to a centralised secure location. Through the combination of the app and secure storage, eyeWitness creates a chain of custody for the images that demonstrates the original information has not been changed in any way. Footage received via the app is reviewed by lawyers who tag, process and catalogue it.
This curation ensures the footage meets the needs and requirements of those actors who can use the information, including international investigators and lawyers.
‘Putting information and technology in the hands of citizens worldwide has a powerful role to play in advancing the rule of law,’ said Ian McDougall, Executive Vice President and General Counsel of LexisNexis Legal & Professional.
IBAHRI reaffirms its commitment to LGBTQI+ equality
The IBA’s Human Rights Institute (IBAHRI) issued a statement during Pride Month on the status of LGBTQI+ rights around the world. The statement acknowledged the progress that has already been made, as well as the work that still needs to be done, in order to protect LGBTQI+ rights worldwide.
This statement follows the IBAHRI’s Resolution on Sexual Orientation and Human Rights, which was passed in May 2010. A main tenet of the Resolution is the recognition that discriminating against anybody on the basis of their gender identity or sexual orientation opposes the fundamental principles of human rights.
The Resolution confirmed the IBAHRI’s commitment to advocate for the following causes: the decriminalisation of same sex relations; the end of discriminatory practices; marriage equality; a universal ban on conversion therapies; and legal recognition of transgender identities and equality in gender identity.
Covid-19: pandemic enables violations of sexual and reproductive healthcare rights
JENNIFER VENIS, IBA MULTIMEDIA JOURNALIST
Access to sexual and reproductive healthcare (SRH) has been severely restricted around the world during the Covid-19 pandemic, with dire consequences.
Katrine Thomasen, Senior Legal Adviser for Europe at the Center for Reproductive Rights, says ‘during the pandemic some European countries have not categorised SRH as essential, which has led to new barriers in access to care.’
‘The pandemic has also highlighted existing barriers and medically unnecessary requirements for access to care, which were already human rights concerns and have become even more problematic during the pandemic,’ she adds.
Even where SRH has been classed as essential, very few countries have taken measures to facilitate access to this care, explains Thomasen. She notes that France, Ireland and parts of the United Kingdom have enacted temporary measures to deliver care through telemedicine and other means, and believes such measures should be maintained and replicated.
Akila Radhakrishnan, President of the Global Justice Center, says one reason countries may not have prioritised SRH is because ‘we still don’t have widespread understanding that denied abortion is a matter of life and death.’
In June, the World Health Organization reported that: ‘Reductions in the availability of essential sexual reproductive health and maternal and newborn health services will result in many thousands of maternal and newborn deaths due to millions of additional unintended pregnancies, unsafe abortions andcomplicated deliveries without access to essential and emergency care.’
According to the Covid-19 impact projections of Marie Stopes, a SRH provider, between four and nine and a half million vulnerable women and girls risk losing access to their services alone.
Radhakrishnan says ‘this is a dangerous area where women’s bodies and lives get left behind.’ She says that problems with access to SRH around the world are compounded by restrictions on movement, the impact of supply chain issues on the manufacture and distribution of contraception and healthcare resources, and patients suffering pandemic-related rises in unemployment and financial distress.
Radhakrishnan also highlights that low-income and Black, Hispanic and minority ethnic women are – as with many aspects of healthcare – worst affected globally. In countries like the United States, where maternal and infant mortality rates are exceedingly high, women are also contending with anti-choice political agendas.
Major medical organisations such as the American Medical Association named SRH, including pregnancy, abortion and contraception care, as essential services that must be prioritised throughout the pandemic.
Although most states have worked to guarantee access to SRH at this time, some ignored this guidance.
In Louisiana, for example, the Attorney General called for state clinics to close, arguing ‘elective abortions are not essential procedures.’ Other states’ restrictions came under the guise of prioritising healthcare resources, like personal protective equipment for the fight against Covid-19. Many of these states have so many other restrictions on abortion care that access to all family planning services was already limited.
Stephen Weiner, former Co-Chair of the IBA Healthcare and Life Sciences Committee, says ‘the difficulty is that decisions about how to ration and prioritise healthcare resources are being made on political grounds and not healthcare grounds.’
Molly Duane, Staff Attorney at the Center for Reproductive Rights, says ‘in the US there’s a coordinated strategy to ban abortion or push it out of reach altogether. So, as the pandemic hit the US in earnest in March, the handful of states that are always attempting to ban abortion used the pandemic as a pre-textual excuse to once again try to shut down abortion access.’
Last year, 25 abortion bans in 12 states were enacted, but blocked from going into effect by legal action from rights groups. Nine of those states have sought to ban abortion during the pandemic, according to the Center.
In Tennessee, when a Covid-19-related ban was blocked by rights groups, the state legislature sought to ban abortion outright at nearly every stage of pregnancy. In mid-July, a lawsuit filed by the Center for Reproductive Rights led to a federal district court issuing a temporary restraining order blocking portions of the ban.
Although the courts have restored access to SRH in all states so far, the impact has still been severe. Duane says, ‘the patients who needed abortions in Texas when it wasn’t available didn’t just disappear.’ Blocked access ‘forced unnecessary health risks upon women, many of whom will either be forced to carry to term against their will or have had to travel across state lines for access to care, and the risks there are multi-variable.’
And the battle for SRH will continue post-pandemic. In late June, the US Supreme Court blocked Louisiana’s excessive restrictions on SRH services, based on a previous judgment that blocked an almost identical attempt to place undue burden on abortion access in Texas. But Weiner – who is also Founding Chair of the Health Law Practice at Mintz – believes the Louisiana judgment is not the SRH rights victory it seems. ‘Chief Justice Roberts wrote an opinion that many will read as “when you come back with a better crafted legislative prohibition, we will support you”.’