International Organizations

World Bank Inspection Panel applies gender-sensitive analysis in report on Nachtigal Power Project in Cameroon

/ Tequila J. Brooks / Leave a comment

My recent commentary in the International Labor Rights Case Law Journal focuses on the September 2022 report issued by the World Bank Inspection Panel in response to complaints made by local community groups about harm caused by the Nachtigal Power Project and Sanaga River Technical Assistance Project. The commentary is accompanied by text excerpted for the Inspection Panel’s report.

The case arose out of the damming of the Sanaga River to create a hydroelectric power plant. The Inspection Panel’s report stands out because of the Panel’s holistic review of the harms caused by the Nachtigal Power Project, its application of a gender sensitive analysis to the facts outlined in the complaint and uncovered during the Panel’s on-site visit, and the Panel’s validation of the harms alleged by the community members. On November 4, 2022, the parties agreed to dispute resolution under the auspices of the World Bank accountability mechanism. The collaborative dispute resolution process commenced in December 2022. If the parties are unable to come to an acceptable resolution, the case will proceed to the formal investigatory process.

The report in the Nachtigal Power Project case is one of a new generation of reports issued by the World Bank Inspection Panel after the World Bank reformed its accountability mechanism in 2020. The reforms strengthened rules governing the social effects of World Bank-funded projects. In December 2022, the World Bank Accountability Mechanism Secretary issued updated operating procedures for the accountability mechanism.

In its report on the Nachtigal Power Project, the Inspection Panel drew a complex picture of intertwining environmental, social, and workplace harms affecting the local community. Short- and long-term impacts of damming the river affected fish populations, which in turn affecting the ability of fisherfolk to earn a living, which in turn affected the resources available to families to keep children and young people in school and university, which in turn had a deleterious effect on the local community in the form of increased crime, domestic violence, and prostitution.

By applying a gender sensitive analysis to the facts detailed in the complaint and uncovered during its on-site review, the Inspection Panel was able to shed light on how the project had affected women – and how women were excluded from livelihood restoration and other plans adopted to mitigate the harms of the project. Women in the community tended to earn their livelihoods from informal tasks like fish mongering and operating restaurants that catered to fishermen and sand miners. The informality of their means of making a living served as a barrier to women’s participation in livelihood programs. A gendered focus highlighting informal businesses is also beneficial to men who operate informal businesses in agriculture and sand mining. The Inspection Panel also noted that sexual harassment of women seeking work at the power plant was another barrier to the restoration of livelihoods lost as a result of the Nachtigal Power Project.

Importantly, the Inspection Panel affirmed the credibility of the complainants and community members – and uncovered additional facts showing that project mitigation plans had not been effective in restoring livelihoods and mitigating against the harms caused by the hydropower project.

As a financier of the project with the ability to withdraw or stop funding, the World Bank has a considerable amount of leverage at its disposal to persuade project management to effectively address issues raised by complainants. It remains to be seen whether community members, project representatives, financiers, and policy makers at the national and international levels will be able to develop solutions that match the complex and intertwining harms caused by the project. Regardless of the outcome, the report in the Nachtigal Power Project case is an example of how international institutions can effectively apply a gender sensitive analysis to reveal and hopefully address adverse impacts of globalization and development not only on women, but on men as well.

Please reach out to me privately to request a copy of my commentary.

Launching a Global Campaign Against Gender Apartheid in Afghanistan

/ Stephanie Farrior / Leave a comment

Three items to share on this, the one-year anniversary of the Taliban takeover of Afghanistan:

Register and attend what promises to be a riveting discussion on Global Strategies for Countering Gender Apartheid in Afghanistan on Friday 19 August 2022, with courageous Afghan women human rights defenders like Shaharzad Akbar and Zarqa Yaftali and international partners like the University of Michigan’s Professor Karima Bennoune and Human Rights Watch’s Heather Barr. Register here.

View filmmaker Ramita Navai’s documentary Afghanistan Undercover, about which noted interviewer Terry Gross of the program Fresh Air remarked in her interview with Navai: “I feel like the world isn’t watching as carefully anymore. And your documentary was a wake-up call to me. . . . things have gotten so dire for women there.”

Read Professor Bennoune’s powerful analysis The Best Way to Mark the Anniversary of Taliban Takeover? Launch a Global Campaign Against Gender Apartheid in Afghanistan, which explains why “it is critical to commit to a more effective and principled global response, and to do so by recognizing this grave set of abuses for exactly what it is: gender apartheid.”

Time to act, UN Human Rights Committee

/ Stephanie Farrior / 1 Comment

Afghanistan, which ratified the ICCPR in 1983, was last reviewed by the UN Human Rights Committee in 1995 – and it was a truncated review at that. The Afghan head of delegation was unable to be present due to delays en route, so the Chair suspended the review that had barely begun, saying that consideration of the report would be resumed at a subsequent meeting.

No subsequent review has ever taken place. Instead, there has been one postponement after another, as shown by the timeline below.  Why the neglect by the premier human rights treaty body authorized to monitor compliance with civil and political rights?  

Prompted by concerns we heard from Afghan women human rights defenders and Afghan human rights defenders more broadly, three of us wrote to the Human Rights Committee last week urging them to schedule a review of Afghanistan without further delay: Felice Gaer, Former Vice Chairperson and member, Committee against Torture, and Director, Jacob Blaustein Institute for the Advancement of Human Rights; Karima Bennoune, Professor of Law, University of Michigan, and immediate past UN Special Rapporteur in the field of cultural rights; and yours truly, Stephanie Farrior, professor of international law for 30 years and past Legal Director of Amnesty International. We await a response. The Committee has reportedly already set its calendar of reviews for the next several years. If a review of Afghanistan is not already scheduled, it should be, and without yet more delay.  

Afghanistan has seen significant political turmoil in the years since that partial Committee review held in 1995 – from the Taliban, to the Karzai government after the US invasion and now, back to the Taliban, which is not recognized by the United Nations as the official representative of Afghanistan. This has not prevented other UN human rights treaty bodies from holding a review of the implementation of their treaty in Afghanistan (see below).

The Human Rights Committee did schedule review of Afghanistan for March 2000, but the government requested and received a postponement.  

The review was next scheduled to take place in October 2001, and in the preceding session in May, the Committee developed its “List of issues prior to reporting.” However, the events of 9/11 intervened, and the Committee decided “to postpone review of implementation of the Covenant in Afghanistan to a later and more favorable date.” A concern expressed in that meeting by the late Sir Nigel Rodley and shared by other Committee members at the time was that their statement postponing the review “should not be interpreted in such a way as to suggest that the Committee will henceforth no longer consider the reports of States Parties in which an armed conflict is taking place.” Christine Chanet added that the presence of armed conflict does not only not prevent consideration of a state party, but it actually “adds to the concerns of the Committee.”

It was not until a decade later, in July 2011, that a review of Afghanistan was once again on the table, when the Human Rights Committee announced it would develop a “List of issues prior to reporting” at its July 2012 session.  It did indeed adopt a list of issues at that 2012 session, but in the ensuing ten years, no review of implementation of the Covenant in Afghanistan was ever scheduled or held.

Today, the human rights situation in Afghanistan is dire. For women and girls, as a journalist quoted in Amnesty International’s recent report has stated, “it’s death in slow motion.” For some, it’s more than one can bear. According to UN News: “The situation for women is so desperate in Afghanistan that they are committing suicide at a rate of one or two every day, the Human Rights Council has heard.”

In light of the dire situation in Afghanistan, the Human Rights Committee could take action and schedule a long overdue review of the civil and political rights situation there. The Committee’s Rule of Procedure 70 allows for review of a state party in the absence of a report. In this case, the last report submitted by Afghanistan could be updated with the significant body of information documented by UNAMA, the UN Special Rapporteur on Afghanistan, and human rights NGOs.  In addition, Afghan human rights defenders are keen to submit shadow reports. They are also keen to see every human rights mechanism engaged to the extent possible, to keep up international attention and pressure.

In a situation where the de facto entity in control of a state’s territory is not a recognized government, the Committee could nonetheless follow normal procedures and send an invitation to participate in a review to the office of the Permanent Mission of Afghanistan in New York. The UN-recognized (former) government officials could attend, present an oral (or written) report – or not. It should be noted that Rule of Procedure 68.2 allows for consideration of a report if the state party does not send a representative.   

The timeline below shows year after year after year of postponements of a review of Afghanistan by the Human Rights Committee. Other treaty bodies have engaged in periodic reviews of Afghanistan in the years when the Human Rights Committee was not scheduling a review, most recently the Committee against Torture in 2017-2018, and CEDAW in both 2016 and 2020.

It is time for the UN Human Rights Committee to re-engage, and schedule a review as soon as possible, given the critical situation there and the importance of continued international scrutiny. The record of neglect by the Human Rights Committee means that there has been no authoritative analysis of the implementation of the Covenant on Civil and Political Rights in Afghanistan for 27 years. The Committee should correct this situation promptly.  

October 1991: Afghanistan submitted 2nd periodic report to the UN Human Rights Committee. 

October 1995: Committee began review of the 2nd report, but soon suspended the review due to the absence of the head of delegation caused by travel delays. “The Chairman said that consideration of the report of Afghanistan would be resumed at a subsequent meeting,” and the Committee requested the Government of Afghanistan to submit information updating the report before 31 May 1996 for consideration at” its session in July 1996.  No additional information was received.

The next mention of Afghanistan in Summary Records after October 1995:

October 1999: The Committee invited Afghanistan to present its report at its March 2000 session. The State party asked for a postponement.

November 1999:  The Committee discussed and adopted a list of issues to be taken up in connection with the consideration of the second periodic report of Afghanistan.  Materials used in the preparation of the list included the report of the Special Rapporteur on the situation of human rights in Afghanistan and a report by Amnesty International on the situation of women in Afghanistan.

May 2001: The Committee decided to consider the situation of Afghanistan during its session in October/November 2001, applying Rule of Procedure 68.2, which allows for consideration of a report if the state does not send a representative.

October 2001: The Committee decided to postpone consideration of Afghanistan to a later date, “pending consolidation of the new Government.” “The Committee has very serious concerns regarding the implementation of the provisions of the Covenant in Afghanistan, particularly with regard to the situation of women in Afghanistan, public and extrajudicial executions, and religious intolerance. . . . Despite the fact that, with the current situation of armed conflict in Afghanistan, other serious concerns concerning the protection of the rights guaranteed by the Covenant have been added, the Committee considers that reviewing the report would not be productive in the current situation. [The Chairman] has therefore decided to postpone consideration of the report to a later and more favorable date for the purposes of article 40 of the Covenant.”

Continued postponements: In succeeding annual reports, the Committee duly recorded the previous postponements, but never scheduled a review:

A/58/40(Vol.I)    2002-2003

A/59/40(Vol.I)    2003-2004

A/60/40(Vol.I)    2004-2005

A/61/40(Vol.I)    2005-2006

A/62/40(Vol.I)    2006-2007

A/63/40(Vol.I)    2007-2008

A/64/40(Vol.I)    2008-2009

A/65/40(Vol.I)    2009-2010

A/66/40(Vol.I)    2010-2011

May 2011: “Afghanistan accepted the new optional procedure on focused reports based on replies to the list of issues prior to reporting. It is thus waiting for the Committee to adopt a list of issues prior to reporting.”

July 2011:  The Committee report notes: “The timetable for consideration of reports posted on the Committee website would . . . take account of the States parties for which a list of issues prior to reporting was to be adopted in July 2012, namely Afghanistan, Croatia, Israel, San Marino and New Zealand.”

July 2012:  The Committee adopted a list of issues prior to reporting on Afghanistan with a deadline of 31 October 2013 for its response. In the Committee’s July 2012 LOIPR includes the following  “Please provide any other information on measures taken to disseminate and implement the Committee’s previous recommendations (CCPR/C/AFG/CO/2), including any necessary statistical data.”

For those interested in seeing what those previous recommendations were: Per the UN Library Services, “despite the fact that document CCPR/C/AFG/Q/3 clearly mentions CCPR/C/AFG/CO/2, this document symbol is not recorded in any other source or index and according to the historical research above, the second report issued in 1992 was never fully considered – so no formal documented outcome must have been issued.”

Over the ten years that have passed since it adopted the list of issues, the Human Rights Committee has never reviewed implementation of the Covenant in Afghanistan.

2013-2014: The Annual Report notes the Committee’s adoption of a list of issues prior to reporting on Afghanistan with a deadline of 31 October 2013 for its response. “This report has still not been received.”

Note: The Human Rights Committee’s Rule of Procedure 70 allows for consideration of a State Party in the absence of a report.

2014-2019: The next five Annual Reports of the Human Rights Committee stop giving the prior history of postponed reviews, and only mention Afghanistan in the list of states that are 10 or more years overdue in submitting a report.

There is no further mention of Afghanistan in Annual Reports or Summary Records.

UN Special Rapporteurship on Afghanistan

/ Stephanie Farrior / Leave a comment

On Friday 1 April, the UN Human Rights Council relinquished an opportunity to put talk into action and send an important message to the Taliban by appointing what would have been the first woman UN Special Rapporteur on the human rights situation in Afghanistan.   (All those who held the position during its previous existence from 1984-2005 were men.)  

The UN Consultative Group, the body that screens Special Rapporteur applications (made up this year of three men and a woman, representing El Salvador, Malaysia, South Africa and Canada), had short-listed five candidates: four women — three of whom are Muslim or of Muslim heritage — and a man.  As the candidates’ applications show, all five short-listed candidates were well-qualified, all five had relevant experience, and several had considerable direct experience in Afghanistan and other conflict zones.   

CONSULTATIVE GROUP REPORT TO HUMAN RIGHTS COUNCIL PRESIDENT
Short-listed Candidates for the Position of
Special Rapporteur on the situation of human rights in Afghanistan

First nameLast nameNationalityGender
LeilaALIKARAMIIslamic Republic of IranF
RichardBENNETTNew ZealandM
KarimaBENNOUNEUnited States of AmericaF
KamalaCHANDRAKIRANAIndonesiaF
Kimberley Cy.MOTLEYUnited States of AmericaF

Despite having such highly qualified women candidates for the position . . . the Human Rights Council appointed the only man on the shortlist.  Curiously, in sending its recommendations of candidates to the Council president, the Consultative Group significantly understated relevant experience in its bios of the two women finalists among the final three (Leila Alikarami and Karima Bennoune), even omitting any mention of one candidate’s direct experience in Afghanistan.

Moreover, there was virtually no mention of women’s human rights in the Consultative Group’s entire report on this mandate (except for a brief reference in Alikarami’s bio) — including no mention of any experience at all that the candidate they ranked first might have in this area.   This despite the fact that the Council resolution creating the mandate emphasizes women’s rights and calls on the use of a gender perspective throughout the work of the mandate.    

The new mandate-holder, Richard Bennett, does have considerable experience on and commitment to human rights in Afghanistan, and deserves support in his critically important work.  The statement in his application that if appointed he would give priority to the human rights of women and girls is welcome indeed.  One wonders about the message the Human Rights Council sends, though, as it joins a long list of countries and organizations that are sending all-male delegations to Kabul.  The timing is especially unfortunate coming a week after the Taliban refused to reopen secondary schools for girls, reneging on an earlier pledge to do so.     

Hilary Charlesworth elected to International Court of Justice

/ Stephanie Farrior / Leave a comment

Delighted to report that the UN General Assembly and UN Security Council today elected Hilary Charlesworth to the International Court of Justice, to fill the seat prematurely vacated due to the untimely death of James Crawford (see previous IntLawGrrls post here). The appointment, which takes immediate effect, brings to four the number of women sitting on the 15-judge court.

>> Heartfelt congratulations, Hilary! <<

The next step for the International Criminal Court: Mandatory trainings on sexual and gender-based crimes for all judges

/ Dorine Nauleau & Julia Tétrault-Provencher / Leave a comment

In a report published on September 30, 2020, the Independent Expert Review (IER) raised their concern “about the possible lack of experience, knowledge and interest in international criminal law of some judges”. The same day, the Advisory Committee on the Nomination of Judges (ACN) also released its report, evaluating the suitability of the nominees for the position. A few days later, candidates’ answers to a questionnaire prepared by States Parties were shared. In analysing those different documents, we noticed that several judicial nominees generally lacked experience and/or understanding of what sexual and gender-based crime (SGBC) entailed.

We therefore welcome the IER’s recommendation R174 that the “Presidency should design and organise a compulsory, intensive and comprehensive Induction Programme of sufficient duration for new Judges” that would be tailored to each judge and cover SGBC. The same holds true for the Continuing Professional Development Programme, also proposed in the report. It is now for the Assembly of States Parties (ASP) to make these written recommendations a concrete reality that will be beneficial not only for the Court, but also first and foremost for SGBC victims and affected communities.

This post explains the reasons why we need to have a Bench that has experience in and knowledge of SGBC. It supports the call for mandatory training of judges on this subject.

1. The Imperative: Rights of the victims and Quality of the decisions

The Rome Statute is a progressive instrument offering the necessary tools to put an end to the impunity of SGBC. What we now need are judges who know how to use this tool effectively.

However, this year’s list of candidates speaks for itself: out of the twenty candidates, twelve claimed to have experience handling SGBC cases. From those twelve, five seemed to understand SGBC from the limited prism of domestic violence against women and/or children, or that sexual violence occurs against women; their answers utterly failed to explicitly acknowledge that men and boys could also be victims of SGBC. Only four candidates demonstrated experience in dealing with gender-based violence.   

This is problematic. Judges should hold a basic knowledge of SGBC for, at least, two reasons: to uphold victims’ rights and maintain the quality of the decisions.

The Rome Statute is unequivocal: victims should be put at the centre of ICC proceedings. However, when victims of SGBC face a Bench that has no prior experience or knowledge of SGBC, their right to participate is affected. First, judges play an essential role in ensuring that victims do not suffer from secondary victimisation during the proceedings. Second, as shown in the ICC’s first reparation case (Lubanga), a Bench that lacks a gender perspective and understanding of SGBC is more at risk of making reparation orders that will fail to be effective for and inclusive of SGBC victims.

The lack of knowledge regarding SGBC may also undermine the legitimacy of the Court and the quality of its rulings. The ICC has already been criticised for its decisions that lacked a sensitisation to SGBC (see here and here). While the onus for including SGBC in criminal charges  is on the Office of the Prosecutor (OTP), a Bench that does not have a knowledge of SGBC or is tainted by stereotypes will certainly not contribute to the successful prosecution of these crimes. This affects the entire proceedings, from the confirmation of the charges (see Bemba, Katanga and Ngudjolo cases where charges of SGBC were not confirmed due to the judges’ misunderstanding) to the sentencing  (see Judge Odio Benito dissenting opinion  on her colleagues’ failure to consider sexual violence).

2. The solution: Providing mandatory training for judges on SGBC

The candidates’ lack of knowledge and expertise related to SGBC is deeply problematic considering that, if elected, they are likely to rule over cases of SGBC during their nine-year mandate. In its 2019 report on preliminary examination activities, out of the nine situations that were under examination by the OTP, eight were situations where the OTP had a reasonable basis to believe SGBC had been committed.

We support the call for mandatory judicial training on SGBC at the ICC. Its importance cannot be overstated. The International Organisation for Judicial Training emphasised that judicial training is “essential to ensure high standards of competence and performance”. Even the ICC Code of Judicial Ethics calls on judges to take “reasonable steps to maintain and enhance the knowledge, skills and personal qualities necessary for judicial office”. And, although mandatory training was not a topic addressed by the ACN, it still formed part of the many issues addressed by the IER report (see para.417 of the report).

As explained by the Justice Initiative in June 2020, “the ICC presents a new, unfamiliar legal framework for most incoming judges”. The IER also reported that the ICC “has many distinctive features not repeated elsewhere”. Newly elected judges may not be familiar with the Rome Statute system, as it is one of a kind—the possibility to adjudicate gender-based crimes being an example of its peculiarity.

The Paris Declaration of 2017 advocates for the training of international judges. In several countries (e.g., Canada, the US, Malawi and the UK), judicial trainings are attended by judges. Belgium’s awareness of the lack of its judiciary’s knowledge on sexual violence even led to the adoption of a law making it mandatory for judges to partake in training on sexual violence.  The ICC must follow this practice and organise mandatory trainings on SGBC for its judiciary.

***

We understand that some judges may be resistant to the idea of receiving judicial training. Some of them might “find continuing professional development an anathema to the standing of a judge of an international criminal court” as noted by the IER. However, in an era where SGBC is a clear component of armed conflicts, the poor record of successful prosecution of SGBC before the ICC is no longer acceptable—especially when part of the solution could come simply from a better understanding from the Bench. This is a fair and necessary requirement for those who want to serve on the criminal court that the whole world has its eye on (for better or worse).

Guatemala and Covid-19: Justice Postponed

/ Lauren McIntosh / Leave a comment
Photo courtesy of Alexey Hulsov

This blog piece was co-authored by Jaime Chávez Alor, Latin America Policy Manager at the Cyrus R. Vance Center for International Justice of the New York City Bar, and was originally posted on the website of the International Legal Assistance Consortium (ILAC).

Guatemala is just one of the slew of countries like Brazil, Nicaragua and Hungary that was already experiencing rule of law backsliding long before Covid-19. However, as highlighted in ILAC’s most recent rule of law assessment report, there was a window of opportunity to return to combating corruption and strengthening the rule of law in Guatemala with the ushering in of a new executive in January 2020. Guatemala’s new president, Alejandro Giammattei, even took early steps to show he was serious about fighting corruption by signing an inter-institutional cooperation agreement and establishing a presidential commission against corruption. Even though there were initial signs of hope, there are already unfortunately several reasons to fear that the rule of law will continue to backslide and that the chance for justice will be postponed during the pandemic.

Further rule of law backsliding during Covid-19 is already happening

We have already seen Guatemala’s Congress use a Covid-19 discussion to pass a bill that amends the NGO law. The amendment restricts development NGOs and has been heavily criticized since it was first introduced in March 2017 as being inconsistent with the right of association and freedom of expression. Yet, on February 11, it was “surreptitiously approved after being introduced by three congressmen during a discussion of emergency measures to confront the coronavirus, thus deceiving all transparency and debate in the parliamentary process”.[1] Guatemala’s Constitutional Court provisionally suspended enactment of the law, but its final ruling is on hold as the Court is not in session due to Covid-19.

Added challenges to judicial nominations

More than six months have passed since Congress should have elected judges to Guatemala’s highest benches, including the Supreme Court and Court of Appeals. What was already a nominations process plagued by technical failures and corruption scandals has been further delayed and is likely to become even less transparent due to the pandemic. In the midst of the national quarantine, Guatemala’s Congress met on March 17, and elected judges to the Supreme Electoral Tribunal. The Congressional session to elect the judges was closed to the media as a measure to apparently prevent spreading of the virus. In response, many sectors within Guatemala expressed concern over the lack of transparency in the election process. Despite these concerns, the nine newly elected judges took the bench on March 27. 

Almost as worrying is the fact that the first order issued by the new judges suspended the annulment of six different political parties, economic sanctions against former political candidates, advertising companies and political organisations, several of whom had allegedly illicitly financed past elections. The judges justified their order by stating that the affected parties were unable to appear in their defense due to the public health crisis. This begs the question of whether the judges used Covid-19 as a pretext to justify their ruling after being influenced to suspend the annulments and sanctions. If the answer is yes, this is not a good start for the legitimacy of the newly formed Tribunal which is meant to administer justice and root out corruption in electoral matters.

Covid-19 as a pretext for limiting civil liberties

Not only was the media excluded from the Congressional session to elect new judges to the Supreme Electoral Tribunal, but the government has placed further restrictions on journalists seeking to access and cover other Congressional sessions. On April 4, in response to the limitations, the Human Rights Ombudsman filed an amparo[2] with the Constitutional Court claiming that the restrictions violated Guatemala’s constitution. Similarly, about a week later, more than a hundred journalists, columnists, activists and civil society organizations demanded that President Giammattei and his government stop threatening their freedom of expression and independent journalism. The demand arises from the fact that the government has attempted to silence media outlets critical of the government’s response to the pandemic by using intimidation tactics and excluding journalists from official WhatsApp groups where the government disseminates Covid-19 information.

Can the Constitutional Court continue to resist?

The Constitutional Court has remained a pocket of resistance throughout the attacks on the justice sector and the rule of law in Guatemala, and hopefully this will remain true in spite of the pandemic. In addition to the amparos pending before the Constitutional Court regarding the NGO law and the restrictions placed on journalists, the Court continues to receive amparos during the pandemic. This includes amparos filed by the Human Rights Ombudsman to decentralise Covid-19 testing and for President Giammattei’s failure to appoint a head of the Presidential Secretariat for Women which works to protect the rights of women and children, an amparo requiring President Giammattei to guarantee water and electricity services throughout the health emergency and an amparo to guarantee that the conditions of employees are not modified during the pandemic. It is unclear how these pressing constitutional questions will be resolved while the Court is not in session and how much of a backlog the institution can manage once it is up and running again. How long can justice be postponed during a public health crisis?

Sources

[1] WOLA, “Guatemala: National and International Organizations Condemn Approval of NGO Law,” https://www.wola.org/2020/02/organizations-condemn-approval-of-ngo-law/ (18 Feb. 2020).

[2] An amparo is a remedy to protect constitutional rights and is common to many legal systems in Latin America.

Rule of Law Backsliding and a Rapidly Closing Space for the Justice System in Guatemala

/ Lauren McIntosh / Leave a comment
© Wikimedia Commons

The rule of law has rapidly continued to backslide in Guatemala since my last post on ILAC’s report on the Guatemalan judiciary and our call for support to the United Nations-backed International Commission Against Impunity in Guatemala (CICIG). I had originally planned to discuss in this post how the current situation in Guatemala reflects the challenges and opportunities for promoting justice globally in the context of the United Nations 2030 Agenda for Sustainable Development. But, with such significant rule of law backsliding, the more pressing question is if it is possible to push back against this rapidly closing space for the justice system in Guatemala without CICIG?

Rule of law backsliding

In 2018, Guatemala’s Constitutional Court ruled against President Morales’s attempts to bar CICIG’s Commissioner from reentering the country, and since the beginning of the new year President Morales has retaliated against the Guatemalan justice system.

On January 7, President Morales declared that he was unilaterally and immediately terminating the agreement establishing CICIG even though its mandate does not expire until September. He also demanded that all CICIG officials leave the country within 24 hours. In his declaration he stated that CICIG had severely violated national and international laws and that it put the security, public order, governance, human rights, and above all the sovereignty of Guatemala at risk. This type of authoritarian overreaching to attack and dismantle the rule of law follows the pattern of authoritarian trends globally, as evidenced by V-Dem Institute’s 2018 Annual Democracy Report.

Two days after President Morales’s declaration, Guatemala’s Constitutional Court ruled that his unilateral decision was unconstitutional. This was a step forward for the rule of law in Guatemala and it appeared that the justice system was pushing back against a closing space. Nevertheless, this positive momentum was short lived. Later that same day, Guatemala’s Supreme Court accepted a request from Congress to begin impeachment hearings against three Constitutional Court magistrates and to lift their immunity. The magistrates subject to that request are those who have consistently ruled in favor of CICIG. The impeachment proceedings are currently pending before Congress, and the ultimate decision on whether to lift the magistrates’ immunity and possibly remove them from the bench now lies with a Congress which is heavily aligned with President Morales.

In addition to President Morales’s unconstitutional unilateral decision to terminate CICIG’s mandate, another recent alarming indicator of rule of law backsliding is that Guatemala’s Congress is considering an amendment to its National Reconciliation Law which would grant amnesty to those convicted of serious human rights violations within 24 hours of the amendment’s ratification. This would result in the freeing of more than 30 convicts, most of whom are former military officers, and end any ongoing or future trials for crimes which occurred during Guatemala’s 30-year internal conflict.

Rule of law without CICIG?

CICIG, as a hybrid of international experts and authorities working with national criminal investigative institutions, has provided a mechanism for “accomplished and courageous leaders and prosecutors to emerge” in Guatemala’s attorney general’s office. The result was the prosecution of high-level government officials, including former presidents, ministers, and army officers, the breakup of over 60 criminal networks and 310 related convictions, fighting corruption throughout the judiciary and government, and strengthening the rule of law through programs, projects, and legislation. It is estimated that CICIG has contributed to a net reduction of more than 4,500 homicides from 2007 to 2017. CICIG thus brought Guatemala closer to achieving the targets of Sustainable Development Goal 16 (SDG 16) of the United Nations 2030 Agenda by: significantly reducing all forms of violence and related death rates (Target 16.1); promoting the rule of law at the national level and ensuring equal access to justice for all (Target 16.3); significantly reducing illicit financial and arms flows, strengthening the recovery and return of stolen assets, and combating all forms of organized crime (Target 16.4); and substantially reducing corruption and bribery (Target 16.5).

In ILAC’s recent report on the Guatemalan judiciary, we recommended to the government of Guatemala that in order to guarantee the rule of law for all persons (relating to SDG 16, Target 16.3) it must: support the independence of justice operators, including ensuring adequate resources are made available to the justice sector to ensure that it can perform its vital function, and guaranteeing the safety of justice operators, in particular judges in jurisdictions such as the High Risk Courts; confirm state support for the rule of law and the independence of the judiciary; and ensure that the state complies with court judgements and provides adequate resources for the enforcement of judgements, such as those by the Constitutional Court.

The continuance of Guatemala’s rule of law achievements and the support and oversight for implementing our recommendations, however, relied on CICIG’s existence.

Pushing back

Given the significant rule of law backsliding, is it possible to push back against the rapidly closing space for the justice system in Guatemala? First, it is important to note that Guatemala will hold presidential and congressional elections this summer. The elections, if conducted in a free and fair way, could bring about significant change to the current political climate. And, although the international community could not prevent an abrupt end to CICIG’s mandate, there is resistance to the closing space on the national level. Guatemalans have openly protested against the rule of law backsliding, and just last week Guatemala’s Attorney General opened an investigation into first lady Patricia Marroquin de Morales’s alleged cashing of unreported campaign checks made out to President Morales during his election bid.

This push back by civil society and justice sector actors on the national level against the closing space is hopefully a signal that the change brought about by CICIG’s work will have a lasting effect on the Guatemalan justice system. The international networks of judges, lawyers, and human rights organizations must support and encourage civil society and legal professionals in Guatemala and raise awareness of the dangers of the current rule of law backsliding. With such support, Guatemala’s civil society and the justice system’s actors and institutions can hopefully withstand the executive and legislature’s attacks on the rule of law.

ILAC was established in 2002, to facilitate cooperation by international and regional actors involved in rebuilding justice systems and the rule of law in conflict-affected countries. In 2017, ILAC selected a delegation of experts from candidates put forward by its 50+ member organisations to carry out an assessment of the justice sector in Guatemala. The delegation traveled to Guatemala in October 2017, meeting with over 150 Guatemalans, including judges, prosecutors, lawyers, human rights defenders and business leaders. Follow the latest ILAC news at www.ilacnet.org and on Twitter @ILAC_Rebuild.

Carrots, Sticks, and the ICC: Prospects for Cooperation? Part 2

/ Sarah P Nimigan / Leave a comment

The contributions discussed in part one may be used to frame an analysis of the Court’s recent request to Belarus to cooperate in the arrest and surrender of al-Bashir. The ICC has issued two arrest warrants for al-Bashir, one in 2009 and one in 2010, for alleged war crimes, crimes against humanity, and genocide. Since the arrest warrants were issued, al-Bashir typically travels to non-states parties, who are under no obligation to arrest him. Indeed, Belarus has neither signed nor ratified the Rome Statute. However, he has also visited states partieswho do have an obligation to arrest, including (but not limited to) Chad, Kenya, Djibouti, Malawi, the Democratic Republic of Congo, Jordan, Uganda, and South Africa. Despite the Court’s request to these states parties for cooperationin the arrest of al-Bashir, national governments such as those of Chad, Jordan, and South Africa have refused to comply, using the justification that al-Bashir’s status as head of state provides him with immunity from arrest. This opinion is also promoted by the African Union, which has asked for an advisory opinion from the International Court of Justice on the issue of immunities of heads of state and government within the Rome Statute system.  

The relations between Belarus and Sudan are strengthening in several key areas. Al-Bashir and Belarus’ President, Alexander Lukashenko, signed agreements on ‘friendly relations and cooperation’in 2017 emphasizing dynamic trade and joint projects in the industrial and agricultural sectors. Al-Bashir’s speculated travel to Belarus is for the purpose of finalizing trade deals and enhancing bilateral relations. However, the link between the two countries is long(er)standing. Belarus is a Sudanese armament provider. In 2006, a military cooperation protocolwas signed by the two countries covering training, exchange of experiences, and military science. Belarus has a reputation as an arms exporter to rogue states. Since Belarus is under no legal obligation to cooperate with the ICC, the arrest and surrender of al-Bashir highly unlikely. The high probability that Belarus will ignore the Prosecutor’s request contributes to a culture of impunity and staunch criticism of the Court.  

Inasmuch as states pursue political and economic (self) interests, the UNSC expressed a need for accountability for the atrocious crimes committed in Darfur under the leadership of President Omar al-Bashir at the ICC. The majority of states agree that the gravity of the crimes covered by the Rome Statute are so abhorrent that they are an offence to humankind and should not go unpunished. It is necessary to question the elusiveness of state cooperation in the situation concerning al-Bashir and consider what can be done to facilitate a different, more just outcome. Relying on Belarus is insufficient without the political backing of the UNSC to oblige all member states to enforce their referral and facilitate cooperation by all states to this end.   

Political strategizing for the majority of states requires a balance of hard and soft power; this includes the promotion of international criminal justice and the use of international institutions, which creates a sense of solidarity among Member States. Expectations of behaviour establish trust. The rules-based order in the Rome Statute system contributes to a shared commitment to these goals. The referral of the situation in Sudan to the ICC by the UNSC signals that the perpetration of atrocious crimes is unacceptable, even for states who have neither signed nor ratified the Rome Statute. Appeals to sovereign power, interests, or status as a head of state are irrelevant. This could be a significant moment for the international criminal justice project, but the transfer of political power (UNSC) to legal action (ICC) has been weak and haphazard. The lack of organizational support and state cooperation to see justice done devalues international criminal law and subjects the ICC to a serious legitimacy crisis.  

The lack of credible commitment on the part of the UNSC to enforce this referral, or to provide the necessary political support has undermined (and continues to undermine) the ICC’s ability to see justice done. The UNSC has failed to take measures against states who choose not to execute the arrest warrant, which ought to be an obligation that emanates from the referral itself. The need for the UNSC to take a bigger role in the enforcement of its own resolutions remains an important focal point in the discussion on cooperation more broadly.  

The obsequious attention paid to al-Bashir and his disregard for the indictment by the ICC has led to increasing frustration on the part of those who oppose impunity and demand justice and accountability for the victims in Sudan. The role of civil society is particularly important in this regard. Depending on states such as Belarus to cooperate with the execution of an arrest warrant in the absence of political or legal obligations is fundamentally flawed. How persuasive is a sharp carrot when the states involved have the stick? 

This blogpost and my attendance to the 17thAssembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

Despite UN inaction Haiti’s cholera victims fight for justice

/ Sandra C. Wisner / Leave a comment

Two years after the UN promised to do better, the victims of the UN cholera epidemic in Haiti are still fighting to make the organization keep its promises. On December 1 2016, UN Secretary-General Ban Ki-moon publicly apologized to the Haitian people for the UN’s role in causing a devastating cholera epidemic that has claimed more than 10,000 lives and infected more than 800,000 people since 2010. Promising to right the UN’s wrongs in Haiti, Ban Ki-moon rolled out a $400 million plan to control cholera and provide assistance to victims.

Yet eight years into the epidemic and two years since this grand promise the UN is still refusing to keep its promises or honour its legal obligations. The UN’s response to cholera has always been one of charity, never a program of the justice that it is tasked with promoting globally. Ban Ki-moon, choosing his lawyers’ advice over the UN Charter’s directives, carefully avoided any admission of legal responsibility. None of the plan’s promises were enforceable by the victims. Two years later, in a textbook demonstration of the importance of accountability and the rule of law, none of the promises have been kept.

The UN had promised to place “victims at the centre of the work” of its $200 million victim assistance plan, and to consult with them in developing the package. It promised to consider not only community-based assistance but also “payment of money to the families of those individuals who died of cholera.”

Victims took the UN at its word, and prepared for the consultations. They met in groups to study and discuss the pros and cons of different approaches. They participated in victim committees and consultation training sessions, and brought the nuanced discussions home to their villages for more discussion.

In the meantime, the UN’s limited fundraising efforts yielded limited results, so the promised material assistance project was replaced with a “pilot consultation” in a single municipality, Mirebalais. The UN’s public comments on victim assistance discussed only community projects, with individual compensation apparently off the table.

The UN declined to include the victims who had prepared for the process in the Mirebalais pilot. Instead, a few selected cholera victims were included in larger focus groups of local political, religious and community leaders. The consultation process went ahead without transparency as to how it was being conducted and without clarity as to how these victims were selected. Reports from those meetings indicate that individual compensation was not presented as an option, and that the voices of the cholera victims – who contracted the disease in the first place because they were too poor to afford clean water – were predictably marginalized among the discussions of the leaders, who arrived with their own agendas for community development.

This obviously flawed process produced the conclusion it was designed to produce: that Haitians wanted community projects, not individual compensation. The UN now intends to expand on this “success” in other heavily affected communities. So the victims need to keep fighting for justice. As many of these victims often state, “it is not for the wrongdoer to decide what is justice for the victim.”

On the anniversary of the introduction of cholera, cholera victims in the town of Mirebalais—where the epidemic started–commemorated the day by organizing a requiem Mass to memorialize those who died from the disease. Victims then marched to the former UN base that recklessly discharged cholera-laden waste into Haiti’s largest river system, to lay flowers near the river.

To this day, the UN cholera continues to kill and sicken Haitians. Beyond the ongoing threat, the long-term consequences persist for those who have already been sick or lost loved ones. Crushing burial costs, loss of livelihoods, death of breadwinners, and ensuing accrual of debts has devastated those who already struggled to meet their basic needs.

This latest commemoration of cholera victims, so many years since the outbreak, is the utmost demonstration of victim perseverance. Despite the devastating economic impacts and struggles that victims face, they have continued to mobilize for justice. Together with organizations like the Bureau des Avocats Internationaux (BAI) and MOLEGHAF, they come out to protest month after month to remind the UN of its obligations to provide justice and reparations to those who have suffered so much from cholera. Victims have also filed claims through the UN’s legal process as well as a class action lawsuit in New York through their legal representatives the BAI and the Institute for Justice & Democracy in Haiti (IJDH). On Human Rights Day in 2015, they delivered over 2,000 handwritten letters to the UN’s peacekeeping headquarters in Port-Au-Prince. In 2017, victims told their individual stories in a powerful video message to the UN.

Victims are not alone in rejecting this effort at replacing justice with charity. In June, over 100 US Congressional leaders called on the Secretary-General to ensure a just response to Haiti cholera victims. The following month an open letter signed by 60 human rights organizations worldwide to the UN Secretary-General, including Amnesty International and the International Service for Human Rights, opposed what they saw as problematic consultations of victims. It criticized the UN’s adoption of a charity-based as opposed to rights-based model that appeared to abandon the individual payment approach.

Charitable community projects are not a substitute for the remedies that cholera victims are entitled to by law, and victims are not giving up the fight. The UN’s grand promises to cholera victims two years ago will only be effective if it actually listens to victims, respects their perspectives and allows them to influence the development of policy. As the UN undertakes to review its efforts in Mirebalais, it is not too late to recognize that justice will only be served when victims are truly placed at the centre.