The Assange saga: who does the Working Group on Arbitrary Detention represent?

It is not a normal occurrence to see the decision of one of the so called ‘special procedures’ of the United Nations receiving worldwide attention. However, the opinion of the Working Group on Arbitrary Detention categorising the situation of Julian Assange as arbitrary deprivation of liberty, on 4 December 2015, has attracted the attention of the press, social media and experts’ commentary around the globe.

Suspiciously enough coming from the founder of WikiLeaks, this response was sparked by Assange himself, when he announced, a day before the Working Groups’ opinion became public, that he would surrender to UK authorities if the Working Group concluded that the Swedish and British authorities had acted legally.

Background: The Working Group on Arbitrary Detention consideration of individual cases

The Working Group on Arbitrary Detention is one of the ‘thematic special procedures’ of the United Nations Human Rights Council. The creation of a special procedure is dependent on the approval of a resolution creating the mandate by a simple majority of a governmental body (the Human Rights Council or its precursor, the Commission on Human Rights). These resolutions are therefore result of political negotiations between states, although the mandate-holders of special procedures are independent experts. As a consequence, the scope of competence and methods of work are framed in vague terms, and mandate-holders have enjoyed great flexibility and autonomy in operationalising their activities.

While intervention in individual cases was well-established among other mandate-holders of special procedures when the Working Group on Arbitrary Detention was created in 1991, this was the first special procedure to be explicitly endowed with the power of ‘investigating cases’ falling within its mandate. The Working Group has adopted methods of work  similar to treaty-bodies dealing with individual complaints, complete with conclusions concerning the existence of a violation by the State concerned. Special procedures do not require  the exhaustion of domestic remedies to be able to access them, one of the many features making these mechanisms particularly attractive to those who need a reaction from an international body, including the possibility of ‘urgent appeals’ which can be sent in a matter of hours, if there is an imminent risk to the life or physical integrity of the victim.

Undermining human rights bodies: reactions to the opinion of the Working Group on Assange

It is not the purpose of this commentary to assess the content of the opinion of the Working Group, largely criticised for its shaky legal foundations elsewhere (see for instance: Mathew Happold here, Joshua Rozenberg here, or a more nuanced view by Liora Lazarus here). Instead, it seeks to highlight the implications of the reaction to the opinion, which risk damaging international human rights bodies, at a time when mistrust towards the international human rights regime, often voiced by countries ‘in the South’ as attempts to undermine their sovereignty, are increasingly being augmented by the voices of Western States including the UK.

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The Long Journey to Justice for Sri Lanka’s Victims (Part II)

Human Rights Council resolution 30 on “Promoting reconciliation, accountability and human rights in Sri Lanka” was adopted on 1 October 2015. It followed the formal presentation of the report of the Office of the UN High Commissioner for Human Rights Investigation on Sri Lanka (OISL) at the Human Rights Council (see previous blog post – The Long Journey to Justice for Sri Lanka’s Victims) (Part I)).

Resolution 30 is the first to be passed with the support of the Government of Sri Lanka, in a series of resolutions on promoting reconciliation and accountability in Sri Lanka (19/2 of 22 March 2012, 22/1 of 21 March 2013 and 25/1 of 27 March 2014). The resolution draws upon the recommendations of the OISL report that address the multi-faceted repercussions of Sri Lanka’s vicious civil war. The wide-ranging recommendations include: security sector reform; return of private land; ending military involvement in civilian activities; a political settlement on the devolution of political authority; accountability for attacks on journalists and human rights defenders; and the repeal of specific legislation such as the Prevention of Terrorism Act. Yet, resolution 30 falls short in respect of a key OISL recommendation – the establishment of an ad hoc hybrid special court. Instead, it calls for a “Sri Lankan judicial mechanism” – a problematic proposal due to Sri Lanka’s abject track record of domestic accountability. The OISL itself was born out of the absence of a credible national process of accountability.

Justice for Sri Lanka’s victims is tethered to the success or failure of this proposed judicial mechanism. Several factors will be key to its ability to deliver a “credible justice process”. Genuine and sustained political will is of paramount importance. The reform of domestic legislation to enable the prosecution of international crimes is a priority. In his oral statement on Sri Lanka on 30 September 2015, the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein warned of “the total failure of domestic mechanisms to conduct credible investigations, clarify the truth of past events, ensure accountability and provide redress to victims.” The resolution envisages a role for “Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators”. As the specific domestic legal processes for creating the judicial mechanism remain to be determined, a framework that harnesses these professionals’ expertise and provides a buffer from political interference will be a positive starting point. The integrity and reputation of domestic personnel selected to the mechanism will be another test.

Another critical corollary to this judicial mechanism is the proper application of robust witness protection legislation. The safety and security of victims and witnesses form the bedrock of any effective judicial process. Terrified witnesses will not speak. Those who courageously testify must have their personal safety and that of their family members guaranteed. This is particularly true in the case of Sri Lanka, where authorities have wielded the threat of reprisals as a weapon to silence victims, witnesses and activists. In the course of its work, the OISL received “persistent reports” of surveillance, threats, intimidation, harassment, and interrogation by security forces from human rights defenders and potential witnesses in Sri Lanka. Witnesses feared testifying or reporting violations. They provided consistent accounts of harassment and sometimes physical abuse by the military and police. Continue reading

The Long Journey to Justice for Sri Lanka’s Victims (Part I)

The much-anticipated report of the Office of the UN High Commissioner for Human Rights Investigation on Sri Lanka (OISL) provides a momentous opportunity for Sri Lanka to atone for the atrocities of its civil war.

The OISL was set up in March 2014 pursuant to Human Rights Council resolution 25/1 [pdf] to undertake a comprehensive investigation into alleged serious violations and human rights abuses by the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). On the basis of a “reasonable grounds to believe” standard, the OISL concluded that both parties to the conflict are likely to have committed war crimes and crimes against humanity.

The 280-page report (part 1 and part 2) documents a “horrific level of violations and abuses” that are “among the most serious crimes of concern to the international community as a whole.”  Sri Lankans must now sever ties with this violent past by embracing accountability and reconciliation. Implementing the OISL’s recommendations will be the first step in this journey.

The OISL focussed on a period of 9 years (2002-2011) but its report traces the complexities of Sri Lanka’s 26-year civil war: the post-independence government policies that favoured the Sinhalese majority disadvantaged by colonialism – ostensibly offering them redress but effectively marginalising and radicalising segments of the Tamil community. Tamil separatists’ calls for a separate state began in the 1970s. In 1983, after the LTTE killed government soldiers, the communal violence of “Black July” set the country firmly on the warpath, though hostilities waxed and waned thereafter. In 2006, at least 520,000 Sri Lankans were displaced by the conflict – one of the largest displacement crises in Asia. The LTTE’s crushing defeat by government forces officially ended the conflict in May 2009.

As the final battles raged in 2009, civilians sought refuge in “safe zones” or “No Fire Zones”. They were neither safe nor spared fire. Government forces repeatedly shelled hospitals, humanitarian facilities and food distribution centres in these zones, although these were not used for military purposes. In one incident in April 2009, at least 50 IDPs (including children) were killed during the deliberate shelling of a clinic distributing a rare commodity – milk powder. On its part, the LTTE constructed military fortifications adjacent to areas surrounding IDP concentrations, and beat and killed civilians trying to escape the fighting. Trapped and targeted, civilians were deprived of medical supplies and starved due to restrictions placed on humanitarian assistance and access. Almost 300,000 IDPs who survived the war were detained in military-guarded camps in appalling living conditions.

These rampant violations in the final battles were a culmination of the wide-ranging abuses that marked the hostilities. First, unlawful killings – LTTE suicide bombers being a notorious trope of this conflict. Sri Lankan forces and linked groups also engaged in the widespread killings of civilians, politicians, journalists and humanitarian workers. As of 2013, Sri Lanka recorded one of the highest numbers of humanitarian workers killed globally. Second, extreme levels of disappearances – the second highest worldwide [pdf]. The majority of victims were individuals perceived to have links with the LTTE. Men were the main targets but women bore its devastating brunt as the survivors in culled families, looking for their loved ones in the face of constant intimidation. Continue reading

Introducing Rosa Freedman

It’s our great plearosa freedmansure today to introduce Dr. Rosa Freedman as an IntLawGrrls contributor.  Rosa is a Law Lecturer at the University of Birmingham. She completed her undergraduate studies at Queen Mary University of London and her LLM in Public International Law at University College London. Rosa was called to the Bar at Gray’s Inn before beginning her doctoral studies, which were funded by the University of London.

Rosa started working at Birmingham Law School in 2011. She is the author of The United Nations Human Rights Council: A critique and early assessment (Routledge, 2013), which is the first monograph examining that body. The book was launched in May at the United Nations in Geneva, at an event jointly hosted by the UK Mission to Geneva and the United Nations Library. Rosa publishes academic articles on public international law, international human rights law and international institutions. Her research is interdisciplinary, focusing on law, international relations, political science and post-colonial studies. She writes comment pieces on a wide range of legal matters for The Guardian, Huffington Post and UK Human Rights Blog. Rosa also provides research and expertise to a number of national and international NGOs.

Rosa’s introductory post today discusses the troubling state of LGBT rights at the UN Human Rights Council.