Brexit: referenda a ‘double-edged sword’ for democracy and rule of law
RUTH GREEN, IBA MULTIMEDIA JOURNALIST
As the European Commission in Brussels has taken down the Union Jack for the final time and the UK faces up to negotiating its future relationship with the remaining 27 EU Member States, an assessment of the role of the 2016 referendum is in order.
Leading figures, such as Nils Muižnieks, former Commissioner for Human Rights at the Council of Europe, are clear on the dangers of referenda undermining democracy and the rule of law, not just in the UK, but worldwide.
Research by the University of Cambridge indicates the proportion of people dissatisfied with democracy in developed countries worldwide rose to 58 per cent in 2019 and, in the UK, public satisfaction in democracy ‘plunged during the political stalemate following the EU Referendum’.
Referenda have become an increasingly popular way of deciding issues of national importance. Some countries, like Switzerland, regularly turn to this form of popular vote, with ten referenda held in 2018 alone.
In 2018, 66.2 per cent of Swiss voters rejected a proposal to give the country’s laws priority over international law. ‘This was done without explaining what it really means and what the implications really were of the vote,’ says Muižnieks. ‘If it had succeeded, Switzerland’s continued membership in the Council of Europe would have been problematic because they would have proclaimed the priority of their judges over the European Court of Human Rights.’
Muižnieks points to a 2009 Swiss referendum that led to a nationwide ban on constructing new minarets on mosques, raising concerns about religious tolerance and the ability for referenda to target vulnerable groups in society. ‘[A referendum] does tap into this desire for public participation,’ says Muižnieks. ‘But it’s a double-edged sword and needs to be done in such a way that it doesn’t target vulnerable minorities or lead to misleading political outcomes.’
Caroline de Gruyter is a member of the European Council on Foreign Relations. She agrees that the UK’s 2016 referendum exposed problems associated with using direct democracy to decide on divisive issues. ‘Look at Brexit: everybody got hyper-emotional,’ she says. ‘When there’s a lot of social, economic and political friction, the last thing you need is a debate. There’s a need now to unblock completely this type of polarised situation.’
“Majoritarianism is not democracy... The rule of law and fundamental human rights should always be protected, especially from the majority
Justice Richard Goldstone
Honorary President, IBA Human Rights Institute
The fallout from that vote and the continued push from some for a second referendum on EU membership has raised questions about whether democracy is being undermined. De Gruyter says the use of citizens’ assemblies – a body of members of the public that convene to discuss an issue before drawing conclusions – could be one way to ensure democracy evolves with the times. Both France and the UK are convening citizens’ assemblies in 2020 to debate their governments’ approach to tackling the climate crisis.
Ireland has successfully used this mechanism for several significant social issues, including the country’s long-standing abortion ban, which was overturned following a referendum in 2018. ‘The Citizens’ Assembly was shown the law as it was,’ says de Gruyter. ‘They studied it and were asked if there was a way to change the law so that most Irish people could live with it. This is a wonderful example of how citizens’ assemblies can work to make sure that the law [works] for the vast majority of Irish situations.’
There has been a surge of support for using these assemblies to resolve political impasses. A 2017 trial run in Manchester involved a sample of 50 people. Twenty-five leave voters, 22 remain voters and three abstainers debated the UK’s future trade and immigration relationship with the EU. De Gruyter says these sorts of trials are promising: ‘All these experiments with citizens’ assemblies acknowledge that there is a problem with democracy and seek a solution not in direct democracy, but representative democracy.’
Independent oversight could be one way to ensure that referenda are conducted properly and the electorate are fully informed of any implications. ‘Ideally you’d have some kind of institution, like a constitutional court, which would vet the constitutionality of a referendum and the question being posed,’ suggests Muižnieks.
In practice, this may not be so straightforward, as Catalonia’s ongoing battle for independence has shown. In 2017, the Catalan government pushed ahead with an independence referendum despite a ruling by Spain’s Constitutional Court that such a move would be illegal. In October 2019, the country’s Supreme Court sentenced nine Catalan separatist leaders over their roles in the failed secession bid, sparking further outcry and protests.
Referenda have posed constitutional dilemmas in other countries, including South Africa, says Justice Richard Goldstone, Honorary President of the IBA’s Human Rights Institute. On 6 June 1995, the country’s Constitutional Court ruled that the death penalty was inconsistent with the country’s Bill of Rights. The then Deputy President FW de Klerk suggested that most South Africans supported the death penalty and he proposed to then President Nelson Mandela that the issue should be decided in a referendum.
Goldstone says Mandela’s response – that any referendum on the death penalty should be accompanied by a referendum on whether white South Africans should be allowed to retain the property they had acquired over the previous 300 years – quickly stopped de Klerk in his tracks. ‘The point that Mandela instinctively recognised was that in a constitutional democracy the constitution is supreme and that 100 per cent of the electorate is bound by it,’ says Goldstone. ‘Majoritarianism is not democracy. Indeed, the Bill of Rights is there to protect minorities and marginalised groups. The majority hardly needs protection. The rule of law and fundamental human rights should always be protected, especially from the majority.’
Expert panel on media freedom launches sanctions report
The High Level Panel of Legal Experts on Media Freedom has launched a report on the use of targeted sanctions to punish human rights abuses against journalists.
The Panel, appointed by Lord Neuberger at the request of the governments of Canada and the UK, is an independent body created to provide advice and recommendations to governments regarding abuses of media freedom. The Panel’s Secretariat is the IBA’s Human Rights Institute and Amal Clooney, the UK’s Special Envoy on Media Freedom, is Deputy Chair.
Acknowledging an alarming trend towards stifling and harming journalists globally, the Panel prioritised the sanctions-focused report because ‘Targeted sanctions are one of the most effective tools to enforce governments’ international human rights obligations, including their obligation to respect free speech and protect the media.’
The report focuses on three key issues within sanctions regimes: what should be included – ie, the appropriate scope of human rights abuses that should trigger the imposition of sanctions – as well as who should be included and how a sanctions regime should be activated.
In preparing the report, the Panel assessed best practices regarding targeted sanctions and has issued recommendations for governments and multinational institutions.
The report calls for sanctions to be applicable to non-state actors, including companies, and for states to ‘provide a role for an expert committee that is not part of the executive branch of government in the triggering of sanctions’.
As part of the Global Media Freedom Initiative, the Panel will also report on issues including asylum and visas, consular assistance, investigations and transparency. Alongside these enforcement topics, the Panel will work with leading academic institutions around the world to write international standards reports that provide advice on the drafting and interpretation of legislation in line with international human rights standards.
The report can be downloaded at tinyurl.com/MediaFreeHRI
To learn more about the Global Media Freedom Project, visit tinyurl.com/MediaProjectHRI
Toolkit on Lawyers at Risk launches on Day of the Endangered Lawyer
On 24 January, to mark the Day of the Endangered Lawyer, the IBA’s Human Rights Institute (IBAHRI) launched a toolkit to facilitate the protection of lawyers at risk of persecution for carrying out their professional duties.
The Toolkit on Lawyers at Risk is the result of a collaborative project between the IBAHRI, the Bar Human Rights Committee, Human Rights House Foundation, Lawyers for Lawyers and Lawyers Rights Watch Canada.
The launch event, which took place in Geneva, also marked the start of the commemorative year of the 30th Anniversary of the United Nations Basic Principles on the Role of Lawyers and the IBA Standards for the Independence of the Legal Profession.
Anne Ramberg Dr jur hc, IBAHRI Co-Chair, said: ‘Thirty years have passed since the adoption of the IBA Standards for the Independence of the Legal Profession, and the launch of this Toolkit is a fitting way to honour this and renew our commitment to human rights lawyers across the world.’
In addition to strengthening the protection of lawyers and providing practical guidance for those seeking to protect lawyers who may come under attack during the course of their work, the Toolkit aims more specifically to:
- enhance the capacity of lawyers’ to use international human rights norms and recommendations;
- raise lawyers’ awareness about risks attached to the practice of law and the need to develop a security plan;
- provide information for lawyers, and those exercising lawyer’s functions, on how to engage with relevant human rights mechanisms to ensure their professional independence and personal and professional safety; and
- support joint actions among organisations that support lawyers.
A directory of organisations and a Legal Digest will also be published alongside the Toolkit.
Access the Toolkit on Lawyers at Risk at tinyurl.com/LawyersatRiskToolkit
IBAHRI report on Judge Afiuni trial observation
An IBAHRI Spanish-language report presents the results of nine years of observation of the trial against Judge María Lourdes Afiuni in Venezuela.
Judge Afiuni was arbitrarily arrested without a warrant in 2009 following her decision to release an alleged ‘political prisoner’.
Legal Guarantees and Due Process: 10 Years of the Afiuni Case points to the liability of the state for the treatment of Judge Afiuni. According to the report, proceedings against her lacked proper safeguards and experienced unjustified delays. Further, the final decision was based on an offence not recognised in national criminal legislation, nor did the Court rule on the merits of applications for restrictions on Afiuni to be lifted or a declaration that the maximum term of any potential sentence had elapsed.
The IBAHRI argues the proceedings against Judge Afiuni violate human rights standards enshrined in international instruments, and have caused irreparable harm to Judge Afiuni’s life plans.
Read the report (in Spanish) at tinyurl.com/10YearsAfiunicase
David Miliband discusses climate change migration and populism in new podcast
A new IBA podcast features David Miliband, Chief Executive of humanitarian aid organisation the International Rescue Committee (IRC), in conversation with IBA Executive Director Mark Ellis at the 2019 Stockholm Human Rights Award ceremony.
At the event, which took place last November, Miliband discussed climate change migration, the importance of practical measures to assist refugees, and the need for passion, as well as reason, in confronting populism.
The Stockholm Human Rights Award is bestowed annually by the Swedish Bar Association, the IBA and the International Legal Assistance Consortium. Miliband and the IRC were the 2019 recipients of the Award, given for outstanding contribution to human rights and the rule of law.
Over the course of 2018, the IRC assisted in the cases of 2,175 children and parents seeking asylum in the United States and resettled 5,374 refugees and Special Immigrant Visa recipients across 25 cities. It is also involved in providing humanitarian aid in countries such as Syria and Yemen.
Listen to the podcast at tinyurl.com/MilibandPodcast
Rome Statute amended to cover crime of starvation in internal armed conflict following IBA report
The Assembly of States Parties to the International Criminal Court (ICC) amended the Rome Statute on 6 December to cover the crime of starving civilians during non-international armed conflict. The move follows the publication of an IBA War Crimes Committee report supporting the 2018 Swiss proposal on the amendment. Previously, the prohibition only applied to international armed conflicts.
The report, authored by the IBA War Crimes Committee, was published on 3 December and reviews the basis in international humanitarian law for the Swiss proposal.
The report highlights that the prohibition of intentionally starving civilians during non-international armed conflict is established as a substantive matter in Article 14 of Additional Protocol II to the Geneva Conventions, which has been ratified by 168 states. It notes that many states have enacted legislation or provisions in their military manuals prohibiting starvation in all types of armed conflict.
Federica D’Alessandra, Former Co-Chair of the IBA War Crimes Committee, commented: ‘The absence of a provision criminalising the starvation of civilians in internal armed conflict, while criminalising in international armed conflict, was conspicuous.’
‘From now on, those who withhold humanitarian aid and other basic goods consignments from civilians trapped in hostilities are put on notice that, where the Court has jurisdiction, they will be punished for this conduct,’ added D’Alessandra.
Intentionally starving civilians as a method of warfare is already prohibited under international humanitarian law. The practice has been condemned on numerous occasions, including by the United Nations Security Council in Resolution 2417 of May 2017. The amendment to the Rome Statute, first proposed by Switzerland in 2018, provides the international community with a tool to prosecute those who resort to starvation tactics during internal armed conflicts.
Read the Committee’s report at tinyurl.com/StarvationReport and view a report on the Eighteenth session of the Assembly of States Parties of the ICC at tinyurl.com/18ICC
IBAHRI issues letter on rights of lawyers in China and condemns US’ use of force in Iraq
The IBA’s Human Rights Institute (IBAHRI) issued a joint letter to the Ministry of Justice of the People’s Republic of China and the All China Lawyers Association on 6 December 2019, in which it urged these bodies to address important human rights issues pertaining to lawyers in China.
The letter – signed by more than 20 international human rights organisations – raises issues regarding the rule of law, the treatment of lawyers in detention, enforced disappearances and other serious breaches of international human rights standards.
Separately, the IBAHRI has issued a statement condemning the United States’ use of force in Iraq on 3 January, which resulted in the killing of Qasem Soleimani, Commander of the Quds Force.
Baroness Helena Kennedy QC, Director of the IBAHRI, commented: ‘Under international law, a breach of Soleimani’s right to life could have only occurred if he was imminently carrying out an attack. It is crucial that such actions are first authorised by the United Nations Security Council, which possesses the highest authority under Chapter VII of the UN Charter to commission the use of force. Ignoring such procedures and a consistent lack of legitimate justifications will set a very dangerous precedent for the future which we cannot afford.’
Read the letter regarding lawyers in China at tinyurl.com/HRIChinaLetter
Read the full statement on the US’ use of force at tinyurl.com/USForceHRI
30-year sentence for Congolese warlord marks turning point for ICC
RUTH GREEN, IBA MULTIMEDIA JOURNALIST
The 30-year sentence handed down to former Congolese general Bosco Ntaganda in November marked a significant triumph for the International Criminal Court (ICC) following a period of increasingly strong criticism.
The ICC judges found the warlord guilty on 18 counts of war crimes and crimes against humanity in the Democratic Republic of the Congo. It is the longest sentence in the Court’s history and follows the sentencing of Thomas Lubanga in 2012 and Germain Katanga in 2014, who were also charged with carrying out war crimes in Ituri Province in the northeast of the country.
Ntaganda’s sentence is a long time coming. He was first indicted by the ICC in 2006 for his alleged role in recruiting child soldiers in Ituri between 2002 and 2003. A second arrest warrant was issued in July 2012. After years of evading the Court, Ntaganda surrendered himself to the United States embassy in Rwanda in 2013. The time he spent in ICC detention – from 22 March 2013 to 7 November 2019 – will be deducted from his final sentence.
Anneke Van Woudenberg, Executive Director of Rights and Accountability in Development (RAID), has interviewed Ntaganda and testified against him at the ICC. She says the ‘hefty sentence’ was in keeping with the gravity of the crimes, which included murder, rape and sexual slavery. ‘It’s hugely significant in terms of showing to such individuals – and there are many in Africa and elsewhere – that think that impunity reigns. The message here is that the Court has a long range: it will wait and it will come for you.’
More than 2,000 victims participated in the proceedings and Ntaganda testified in his own defence. Throughout the trial the defence’s legal team put forward a number of mitigating factors but, as Van Woudenberg stresses, the judges ‘utterly debunked’ each and every one. ‘The fact that those were all rejected and with good reasoning was an important factor in this decision,’ she says. The verdict is subject to appeal.
ICC Prosecutor Fatou Bensouda, said in a statement: ‘I seriously hope that the conviction and the sentence imposed on Bosco Ntaganda will bring [the victims] the justice they so rightly deserve and send a clear signal to would-be perpetrators that justice ultimately prevails.’
The Court’s conviction rate has come in for criticism in recent years. Since its inception in 1998, the ICC has issued nine convictions and four acquittals. However, Ntaganda’s sentence highlights its commitment to delivering justice, says Mark Ellis, Executive Director of the IBA. ‘The ICC has suffered a number of setbacks over the last several years, bringing to doubt its own standing in the international community,’ he says. ‘The Ntaganda sentencing is a welcome counter to these criticisms. For the first time the Court convicted an accused for sexual slavery as a war crime and a crime against humanity. Not only does Ntaganda’s conviction and sentencing bring a sense of justice and accountability for Congolese victims, but it sets an important legal precedence for future atrocity crimes.’
The 30-year sentence against Bosco Ntaganda is the longest in ICC history
One of the most recent high-profile acquittals came in June 2018, when the Court’s Appeals Chamber reversed the original 18-year sentence issued against Jean-Pierre Bemba, a Congolese warlord who had been charged with war crimes and crimes against humanity in the Central African Republic between 2002 and 2003. ‘It’s important for the international community, even under these frustrating moments, to maintain full support for this court,’ Ellis told Global Insight shortly after Bemba’s acquittal in 2016.
The case was reviewed and in September 2019 the Court fined Bemba €300,000 and issued him with a 12-month sentence for witness tampering. Despite an appeal, the sentence was upheld on 27 November.
These rulings come as the ICC seeks to rebut accusations that it is biased towards Africa as it launches significant investigations in other jurisdictions. In November, for example, the Court authorised the opening of an official investigation into alleged crimes committed against the Rohingya in Myanmar since the onset of the country’s military-led crackdown in August 2017.
Van Woudenberg hopes Ntaganda’s sentence will help quell concerns about the ICC’s commitment to delivering justice to victims of atrocities worldwide. ‘There has been an uphill struggle for the Court to adequately tackle the backlash that has been seen by African governments against the institution,’ concedes Van Woudenberg. ‘This marks a huge lesson learned that clearly more is required to make these arrest warrants meaningful and to enact them. Ntaganda’s ability to evade arrest for as long as he did weakened the Court. This judgment is a step in the right direction to strengthening it again.’
Ntaganda’s sentence also ‘boosts the ICC’s prestige in Africa,’ according to Pieter Steyn, Co-Chair of the IBA African Regional Forum and a director at Werksmans Attorneys in Johannesburg. He believes the verdict strongly endorses the Court’s mandate to support the rule of law across Africa and provide ‘a forum to punish war crimes and crimes against humanity where domestic mechanisms are unable to do so’.