International Human Rights Weekly News Roundup

by Pauline Canham

In Focus

5 years on from the crisis of 2015, migrants continue to die

The International Organisation for Migration (IOM) estimates that 554 migrants have died this year in attempts to cross the Mediterranean to Europe.  During the migration crisis in 2015, 3030 people are believed to have drowned between January and August.  In one incident in the last few days, a boat carrying dozens of migrants burst into flames as it was approached by the Italian Navy.  Red Cross commissioner, Francesco Pascuzzo confirmed that up to seven migrants were feared missing and four were in hospital with serious burns.  The remaining survivors were transferred to a “welcome centre”.  The Mayor of Lampedusa has expressed his frustration as hundreds of migrants have arrived there in recent weeks, and has called for the whole island  to go on “strike”.  “We can’t manage the emergency and the situation is now really unsustainable” he said. 

A vessel funded by Banksy, which rescued 200 people, over its safe capacity, was struggling to find a port to allow the migrants to disembark but was finally supported by the Italian Navy and a German charity rescue ship, after the UN Refugee Agency and IOM both called for European co-operation in allowing the migrants to be brought to shore.  Five years after the peak of the migrant crisis in 2015, there is still no agreement on a mechanism for managing the hundreds rescued at sea.

Meanwhile more migrants are making the perilous journey across the English Channel, with 1450 making the crossing in August from France to Britain’s beaches.  In a concerning development, the UK is planning to use hi-tech military drones, more used to operations in Afghanistan and Iraq, to provide an eye-in-the-sky over the channel.  A spokesman for the MoD said: “The deployment of Watchkeeper provides further defence support to the Home Office in tackling the increasing number of small boats crossing the English Channel.”  

The plight of African migrants is not confined to Europe.  Mobile phone footage emerged this week showing conditions inside a coronavirus detention centre in Saudi Arabia.  The detention centres are said to be an effort to control COVID19, known to spread among migrant workers who are housed in cramped conditions.  The footage exposes tightly packed rows of emaciated men, scarred by signs of torture and detainees claim they are beaten with electrical wires and tell stories of those who have committed suicide after losing hope.  Adam Coogle, deputy director of Human Rights Watch in the Middle East said the men are being held in “squalid, crowded, and dehumanising conditions, with no regard for their safety or dignity.”  

Other stories making the headlines around the world

Africa

Americas

Asia

Europe

Middle East

Spotlight on Clive Stafford Smith OBE

Part 1 of 2

Each month, the HRC Blog features a significant figure from the Human Rights community to go under the Spotlight, answering questions put by students from the University of Essex.  This month, we feature Clive Stafford Smith OBE.  This is part 1 of 2.

 

About Clive

Clive Stafford SMithClive Stafford Smith is the founder of ‘Reprieve’ and a well known human rights lawyer.  He has spent his career fighting against the death penalty in America, only taking cases of those who could not afford a lawyer, assisting in the representation over 400 prisoners and preventing their execution in 98% of cases.  Clive is also known for his work in representing detainees at Guantanamo Bay, successfully suing the US government to gain access to the facility, and helping to secure the release of some 80 detainees to date, with seven clients still there.  In addition to visiting and representing the detainees, Clive tracked down the families of ‘disappeared’ prisoners across the Middle East, prompting some unwelcome ‘interest’ from US allies, including the Jordanian Secret Police, who detained him in 2004.  In 2000, Clive was awarded an OBE for ‘humanitarian services’ and has won a raft of awards in the field of human rights.

 

Students’ Questions Answered

Clive was gracious enough to allow the students at Essex an opportunity to send him  some questions about his experiences and ongoing work in the field of human rights.  Clive answered questions on a range of topics.  This first part focuses on the Death Penalty and the impact of COVID 19

DEATH PENALTY

HangingQ: Due to the racial bias in its administration, historic links have been made comparing the death penalty in the US to lynching methods previously used in the South. From your experience working on capital punishment within the US criminal justice system, in what ways would you agree that the death penalty is a “direct descendant of lynching”, and in what ways would they differ?

A: First, it must be said that the US has a direct form of lynching today, which is the assassination programme, a simple case of “execution without trial” (which is what lynching was). The archetype of this is the case we have pending of Bilal Abdul Kareem, an African American comedian-turned-war-correspondent who is in Syria, and who the US has tried to killed five times to date. So there is more than one form of US death sentence.

But in terms of the death penalty as it is more commonly conceived, it is only a system of societal control, the same as lynching. The underpinnings of lynching involve a racism that seeks to play poor white people (the KKK and their ilk) against (primarily) poor black people to prevent them seeking common cause – a demand for equality.  Likewise, it is ludicrous to think that the death penalty solves anything.  Instead, it is a way to pretend that we are solving the manifest problems in society (crime, which is mainly rooted in poverty, the proliferation of guns, drugs, and a lack of healthcare) by blaming a small number of disproportionately black ‘criminals’ and executing them.  Of course, this does nothing to solve the problems.

At the same time as with lynching, where the ‘victim’ was generally a white woman (who might only have been the object of a cat-whistle, but might have been raped by someone), we use the death penalty to value people differently.  As Justice Brennan wrote in his dissent in the McCleskey case:

At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey’s past criminal conduct were more important than the fact that his victim was white. Petitioner’s Supplemental Exhibits (Supp. Exh.) 50. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. Petitioner’s Exhibit DB 82. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey’s victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black, Supp. Exh. 51, while, among defendants with aggravating and mitigating factors comparable to McCleskey’s, 20 of every 34 would not have been sentenced to die if their victims had been black. Id., at 54.  Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim.  Ibid. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.

I was privileged to represent Warren in his last appeal, and it is indubitably true that he died because the US could not face the fact that he was being killed due to the colour of his skin.

 

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Q: Your decades’ long work seeking to counter the death penalty in the US will have exposed you to the depth and extent of racism in the United States. How do you think the human rights community can contribute to the struggle to denounce and overcome racism in the US?

A: First, British people should take a look in the mirror.  At least the US talks about racism and tries to confront it.  The British don’t, and the comments I have heard from British people in the past BLM-weeks have been sad. “I believe all life matters,” is a refrain you would never hear in the US, any more than you would go to the funeral of someone’s child and hear someone say, “I believe the life of my own child matters too.”

Also, the British legal system is rife with racism yet nobody talks about it.  At current rates, it would take 100 years for there to be proportional BAME parity among QCs and judges (and 50 years for women).  Almost three quarters (74%) of judges went to private schools.

That said there are real problems in the US, a country that was built on slavery (much as the wealth of Britain was made, in large part, on the same dreadful practice).  Yet at least in the US we have the tools to combat it.  We can question jurors about racism (Turner v. Murray) – there is no questioning at all in the UK.  We can challenge racism in all the stages of the legal process (Rose v. Mitchell, McCleskey v. Kemp) – it is unheard of in the UK. We can challenge the racial decision making by jurors (Tharpe v. Sellers) – it is a crime to speak to jurors about their service in the UK. And so forth.

But the real issue is that we need people who are making the effort. That means you.

 

Q: What kind of practical obstacles have you faced in your journey of bringing justice to those facing the death penalty?

A: There are many. Some of the rules of the US Supreme Court are just fatuous for their failure to take into account reality.

 

2012 Kris&Marita

Marita and Kris Maharaj

When I started doing capital trials, I had just graduated Columbia Law School, and most of my colleagues had gone to firms on Wall Street where they were paid $1,000 an hour to waste their lives representing corporations over money. We were paid $1,000 for an entire capital case.  And when the clients were on death row, they were meant to represent themselves – they could only have lawyers if they had volunteers…

 

 

And then there is the issue of innocence – the US Supreme Court has held that “mere” innocence is not enough to release someone from death row (Herrera v. Collins).  This is why Kris Maharaj – my British client sentenced to death 33 years ago, now 81 years old – remains in prison despite the magistrate judge finding that he is innocent by “clear and convincing evidence” last September 13th – nine months ago.

But there are many other reasons.  One is the standard of proof.  While people say they must find a person guilty “beyond a reasonable doubt”, my not very scientific studies suggest that judges think this means around 83% sure – which we may translate as saying they are aiming to convict one innocent person in every six cases, or one million of the 6 million Americans who are in prison or facing it. (As Robin Hood reminds us, if you aim that low, you always miss.)

Sad to say, similar problems permeate the British system too.

 

Q: How does the approach to working on behalf of detainees in certain black sites/ secret prisons differ from cases of prisoners facing the death penalty and is one more challenging than the other?

A: Part of the problem with black sites is that you cannot get to your client, there is no rule of law, and they have no legal rights.  So that is much more challenging.  But at the same time, we have got 740 of the 780 people out of Guantánamo largely through publicity, as generally public opinion favours those being held without trial more than it favours those being held on death row after an unfair trial.

 

 

COVID 19

Coronavirus_greenQ: How has the COVID19 pandemic, considering government responses to the outbreak in particular, impacted upon detention centres like Guantánamo Bay and US death row prisons?

A: Prisons are, in the words of the Washington Post, “petri dishes of the virus.”  My clients cannot “social distance” from anyone.  The best example is Kris Maharaj: 81 years old, held now in a dormitory with 45 other old men, locked in their in “quarantine” now they have had 4 men test positive, which means you are locking him in with the virus, in beds that are 3 feet apart, 24/7.  We got him off formal death row in 2002, but now the State of Florida is intent on executing him by Covid 19, before we can get him out of prison.

 

Q: Do you think lockdown measures have caused attitudes to change towards detention or have helped to raise awareness about the conditions experienced by detainees?

A: No. I think people think they have had it like prison which is nonsense.

 

Q: How has Reprieve’s work been impacted by the COVID19 pandemic?

A: I can really only speak for myself. It is busier than ever and actually I have generally found I waste lots of time travelling when I can get much more done by staying home. The only thing I really miss is being able to go to Guantánamo and see the clients in person, but at least I can talk to them regularly on the phone.

 

Part 2 of our Spotlight with Clive Stafford Smith OBE will cover the topics of counter-terrorism, The US Criminal Justice system and the ‘de-mystification’ of the curriculum.

 

 

Spotlight on Sami Al Haj

By Pauline Canham

Each month, the HRC Blog will feature a significant figure, or team from the Human Rights community to go under the Spotlight, answering questions put by students from Essex University.  This month, we feature Sami Al Haj.

Sami_al_haj

Image courtesy of Al Jazeera Media Network

About Sami

Sami Al Haj is the Director of the Centre for Public Liberties & Human Rights at the Al Jazeera Media Network (AJMN) in Doha, Qatar.  He was born in Sudan and started working for Al Jazeera as a cameraman in 2001.  Shortly after the events of 9/11, he was sent to cover the US invasion of Afghanistan in October 2001, an assignment that would change his life forever.  After two months, while crossing from Kandahar across the border into Pakistan, Sami was arrested and detained by Pakistani Intelligence on 15th December 2001 and subsequently handed over to the Americans.  Nothing could have prepared Sami for the horrors that were to come and the course that his life would take as a result.  After some time at the infamous Bagram detention facility, where he experienced harsh and humiliating treatment, he was transferred to a facility in Kandahar and then on to Guantanamo Bay, where he remained as Prisoner 345 for 6 years, without charge.

Guantanamo_captives_in_January_2002

 

While there, according to Sami’s lawyer and founder of Reprieve, Clive Stafford Smith, “Sami endured horrendous cruelty – sexual abuse and religious persecution”. He was beaten, deprived of sleep and force-fed after going on hunger strike.

On 1st May 2008, Sami was released without charge.  He said that he was glad to be free but sad that his ‘brothers’ remained in the hands of “people that claim to be champions of peace and protectors of rights and freedoms.  But a true just peace doesn’t come from military force or threats to use…bombs or economic sanctions.  Justice comes from lifting oppression and guaranteeing rights and freedoms and respecting the will of the people…”

Shortly after his release, and his long awaited reunion with his wife and son, Sami returned to Al Jazeera, where he created a new team dedicated to the field of human rights and civil liberties.

IMG_6213

 

Students’ Questions Answered

Sami_al_haj_smSami was gracious enough to allow the students at Essex an opportunity to send him and his team some questions about his experiences and ongoing work in the field of human rights:

 

Q: It is almost 20 years since 9/11 – What are the biggest changes faced by journalists and humanitarian aid workers operating on the ground in war zones, and have the policies of the war on terror had a ‘chilling effect’ on journalists’ ability to hold truth to power?

A: Regrettably,  journalists are now facing a far worse reality with regard to field coverage. Authorities, militias, and armed groups all endeavour to suppress the voice of truth.   Counter- terrorism policies went to the extent to limit the range of ethical journalism and criminalize journalists.  Press freedom has been compromised all over the world.

 

Q: To what extent do you believe that the CIA Enhance Interrogation Program at Abu Ghraib and other so called ‘black sites’ emboldened repressive regimes in their own torture practices?

A: Tyrants and dictators felt at ease seeing the free world legitimizing water-boarding and torture, we can see that in the Middle East and elsewhere.

 

Q: After your experiences at Guantanamo, do you believe in the universality of human rights both as a concept and in practice?

A: Indeed. My personal experience has provided me with a more humane universal vision and understanding.   I believe human rights should be granted to all individuals regardless of their race, religion or nationality.   Human Rights mechanisms and intentions are good.   However, unfortunately, in practice, things are quite different.

 

Q: Were you told why you were being detained in Guantanamo?   And what gave you the strength to endure your detention?

A: My guards told me that I was being brought to Guantanamo and I would never leave alive.   No information was given except that YOU ARE GUILTY, YOU ARE A TERRORIST!!   I endured due to my strong belief in Allah, the Most Gracious, the Most Merciful.  Throughout my tormenting experience, I believed that I would go out and support my family.

 

Q: To what extent do we see a repetition of the policies of exceptionalism that we saw immediately after 9/11 playing out now in Syria, and how can we ensure a fair judicial process to those accused of involvement with ISIL?

A: Unfortunately, all Middle Eastern regimes  do not believe in an independent judiciary system, and the British and Americans do not want the defendants to stand trial in London nor in Washington DC.

 

Q: How can journalists, humanitarian workers and human rights practitioners maintain their safety in hostile environments?

A: They should adhere to safety guidelines, and subject themselves to strict professional training.   At our Centre at Al Jazeera, for example, we have a Safety Section, and we provide journalists in the Middle East and elsewhere with workshops on the necessity of safety.

IMG_9620

 

Q: Can you tell us more about your team and objectives at Al Jazeera?

A: The Public Liberties and Human Rights Centre first started as a specialised desk within the Al Jazeera Arabic newsroom in 2008 and expanded to become a Centre in 2015.  The Centre now has a team of 14, all based at Al Jazeera’s headquarters in Doha, spread between the Arabic and English newsrooms and online, writing articles and doing research.  Our aim is to ensure human rights content across all AJMN platforms, to raise awareness and competence of international humanitarian law with journalists in the field,  and inform the public about human rights issues and legislation.  In addition, we endeavour to build and develop strategic partnerships with international, regional and local organisations to identify human rights violations and contribute to the promotion of freedom of expression and the press.

 

Q: How does Human Rights fit with Al Jazeera’s core business?

A: Human Rights issues are no longer fleeting news, but at the core of what the Al Jazeera Media Network does.  Al Jazeera’s interest in human rights has clearly emerged as a key element during analysis and discussion both in general and more particularly in the area of press freedom and the detention of journalists.

 

Q: What achievements you are most proud of in the work that you have done over the last 12 years?

A: I believe, over the last 12 years, we have done very well with regard to spreading the culture of human rights in the Middle East and North Africa.  We are now an effective partner of UNESCO, specifically with respect to Press Freedom and we work closely with the International Press Institution.   Our editorial section has contributed over 5,000 pieces and 6 full length documentaries and our partnership section has held more than 60 workshops with international experts from the UN and other global institutions benefitting over 1000 journalists from Al Jazeera and other media organisations.  We are also very proud of our Global Solidarity Initiatives, working in partnership with other media organisations in the areas of press freedom, anti-hate speech, protection of journalists and humanitarian workers, safeguarding displaced persons, rights of prisoners and detainees, and consolidation of transitional justice and the rule of law.

 

Q: What do you see as the biggest challenges and the top 3 priorities for human rights advocates around the world?

A: The biggest challenge right now is the rise of the far right all over the globe.  The top 3 priorities are Right to Religion, Right to Health and Press Freedom.

 

Q: What one piece of advice would you give to a human rights student just starting out on their career?

A: Never compromise.

 

My thanks to Sami and his team for engaging so generously with the questions from our students.  The HRC Blog Editorial team will be publishing further Spotlights in the coming weeks and months and welcome suggestions from students, staff and alumni for subjects they’d like to see featured.

 

 

International Human Rights News: Focus on the impact of Coronavirus on vulnerable groups

by Pauline Canham, Lauren Ng, Bethany Webb-Strong,  Julia Kedziorek, Alana Meier, Amita Dhiman

As the world goes into lockdown to tackle COVID-19, some sectors of society are particularly at risk, not only to contracting the virus but to the very measures being put in place to protect us all.  This week we look at how the most vulnerable are being impacted by this unprecedented crisis.

The Homeless in the UK

Homeless“Stay at home.”

This plea, now an instruction, permeates through the coronavirus crisis and echoes around the United Kingdom.  But where does it leave those who do not have a home, or at least a safe home, to go back to?

The United Nations Special Rapporteur on extreme poverty and human rights, Philip Alston, published a report in 2019 outlining that despite being the world’s fifth largest economy, 14 million people in the UK live in poverty, with the number of rough sleepers and homeless persons having increased throughout the period of austerity.

This group is particularly vulnerable in the face of the Coronavirus pandemic.  They are more likely to suffer from poor nutrition, have unaddressed health complications and no safe place to self-isolate from other people.  With the hoarding of toilet paper, food, sanitary gels and essential medicines, they are unlikely to be able to access these essential items to protect them from the virus.  Furthermore, the closure of stores, and organisations such as gyms and public bathrooms, has led to significant disruption in support systems, and the ability to maintain hygiene standards.

The Ministry of Housing, Communities and Local Government has written to local councils advising that housing must be found for all rough sleepers in order to prevent further spread of the virus.  However, the lack of clarity has resulted in many remaining without a home.  Hotels and offices are also being used to house rough sleepers, although figures of how many have been accommodated across the country have yet to emerge.

 

Those in detention

DetentionLife has ground to a global halt as many countries subject their nations to strict lockdown.  Prison settings are particularly vulnerable to the spread of the coronavirus and preventative measures are inadequate in overcrowded prisons without adequate handwashing facilities.  The World Health Organisation (WHO) has warned that prisons are unprepared and must act immediately to avoid ‘huge mortality rates’.

Without increased testing, the virus is likely to spread rapidly amongst inmates.  Those deprived of their liberty are more vulnerable to the psychological impact of severe isolation measures.  Lockdown in prisons in England and Wales bans family visits leaving inmates confined to cells for 23 hours a day.

In the United Kingdom, immigration detainees with underlying health conditions face the prospect of 3 months in solitary confinement. Detention may only be imposed where there is a realistic prospect of removal from the UK, yet many individuals cannot be returned because their countries have been devastated by the pandemic.  Legal action in the UK which argued that the Home Office has failed to protect immigration detainees led to the release of almost 300 people from detention centres earlier in March.

The psychological impact of quarantine upon children is raising concerns in the United States. Judge Dolly M Gee of the US District Court has called for the release of detained migrant children after four children tested positive in a shelter in New York.

Dr Hans Kluge, the WHO’s regional director in Europe, has called for ‘the boldest of actions’ in response: ‘we must not leave anyone behind in this fight’.

 

Indigenous people around the world

IndigenousThe CODIV-19 pandemic has proved the inadequacy of delivering equity to indigenous people, denying them access to health care.  Indigenous people are one of the most vulnerable groups because of their natural immunological vulnerability caused by civilisation diseases and poor access to clean water, suitable housing and healthcare.  Many communities in Australia receive additional soap and sanitisers supplies, but sadly this is a drop in the ocean.  The healthcare system in aboriginal communities is not equipped to cope with the pandemic and suspending non-essential medical treatments only exacerbates the situation.

In Brazil, since one medical worker from the Kokoma tribe tested positive for coronavirus, doctors became increasingly concerned about indigenous communities, because respiratory infections tend to spread quickly through tribes.  Many children suffer from anaemia, malnutrition and have lung conditions because of constant forest fires, which makes them particularly vulnerable.

Older generations also face a greater risk of death from COVID-19.  Therefore, if village elders pass away, their wisdom and social organisation will not be passed onto younger generations which may lead to the disappearance of their culture.

Many indigenous people have decided to isolate themselves either within their communities, or out in nature.  Once again, this vulnerable group cannot expect any sufficient external support because as Marlene Poitras, Assembly of First Nations Regional Chief for Alberta, states; they have never been a priority.

 

Women

female_nurseAs the COVID-19 pandemic continues, both highlighting and deepening pre-existing social and economic inequalities, it is important to acknowledge the disproportionate burdens that are being placed upon women.  As Maria Holsberg, humanitarian and disaster risk advisor at the UN Women Asia and Pacific stated, “Crisis always exacerbates gender inequality.”

Foremost, women are a large majority of those working on the front lines of the COVID response. According to the World Health Organization, 70% of workers in the health and social sector are women.  Women also comprise the majority in sectors being hit the hardest economically including precarious work and jobs within the service sector.  For example, a quarter of women across the EU fill roles that go unpaid if they don’t work.

women_health_workers

Boniol et al. (2019)

Additionally, with school closures impacting 91% of the world’s students, childcare is moving from the paid economy of schools and nurseries to the unpaid one.  Older relatives ‘social-distancing’ also are now in need of additional care and support.  This shines light on the ‘care crisis’ as these types of unpaid care will fall most heavily on women, thus limiting their work and economic opportunities.  Some countries like Australia are compensating for this by making childcare services ‘fee-free’ for families, despite potentially disastrous impacts for care centres.

Policies and public health responses must account for the sex and gendered effects and experiences of the outbreak.  A gender analysis approach is needed to address coronavirus concerns – an approach that includes sex-disaggregated data, recognising the crucial role that woman must play in the decision-making process.

Finally, the toll of the lockdown on women suffering from domestic abuse came to light this week after a survey of organisations that help domestic abuse victims revealed a dramatic increase in cases.  The UN Chief, Antonio Guterres is calling for urgent action to address the surge.

https://news.un.org/en/story/2020/04/1061052

 

Children

ChildrenThe WHO has established that only a very small proportion of children have contracted coronavirus but the crisis is impacting children in a variety of other ways.  In an effort to ‘flatten the curve’, some states have imposed severe restrictions on some vulnerable groups, including children.

In the Philippines, authorities have resorted to barbaric acts such as confining children inside coffins and cages if found in violation of the covid-19 regulations. In some cases, mothers have been arrested for violating the regulations.  Human Rights Watch officials said the locking up of children would increase the transmission of the disease and the government must prioritize the right to health, while respecting the human rights of all their citizens.

In Bosnia and Herzegovina, the government imposed a blanket ban on children and the elderly from leaving their houses, issuing fines for violations.  An exception was made only for children with disabilities, who are allowed to take a walk with their parents within 50 to 100 metres of the house. Activists said that though restrictions on some rights during the Covid-19 pandemic are justified, they need to be backed with proper evidence and be non-discriminatory in nature.

Due to the closure of schools, UNESCO has recommended that states  ‘adopt a variety of hi-tech, low-tech and no tech solutions to assure the continuity of learning’. Governments must adopt measures for the challenges faced due to this sudden loss of schooling.

 

 

Other stories making the news around the world

International

Africa

Asia

South and South-east Asia

Australasia

Europe

Middle East

North America

Latin America

The dramatic escape of Nissan’s former CEO tests Japanese Criminal Justice System

by Teppei Ono, Secretary-General, Center for Prisoners’ Rights Japan

With the world wondering if the Olympics will go ahead in Tokyo this summer, due to the impact of Coronavirus, Japan has found itself in the spotlight for a very different reason in recent months.  The country’s criminal justice system hit the headlines towards the end of 2019 when the former boss of Nissan, Carlos Ghosn, was indicted for falsifying financial reports and subsequently fled the country to Lebanon.  He immediately went on the offensive, alleging draconian criminal justice procedures, lengthy pre-charge detention periods and repeated interrogations.

Ghosn had been released on bail, on 25 April 2019 after a total detention of 129 days and total bail bond of 1.5 billion yen ($13.6 million).  His escape from Japan was a clear breach of his bail conditions which included a prohibition on overseas travel.  Ghosn held a press conference in Beirut on 8 January 2020, in which he stated that Japan’s legal system violates ‘the most basic principles of humanity’.  In response, Justice Minister Ms. Masako Mori held a press conference at midnight on the same day, commenting, “[H]e has been propagating both within Japan and internationally false information about Japan’s legal system and its practice.  That is absolutely intolerable”.  Much of the Japanese media criticised his escape as a ‘cowardly act’. Some have attacked his defence counsel and the court, which applied for and permitted bail.

Carlos_Ghosn

Carlos Ghosn’s escape tests the Japanese Government’s approach towards criminal justice, which has long avoided any dialogue with the international community.  This article looks back at how the Japanese Government has responded to advice from the international community and how the former Nissan chief’s case proceeded.

The coming years will be significant for Japanese criminal justice, as the United Nations Crime Congress, the largest UN conference in the field of crime prevention and criminal justice, will be held in Kyoto, Japan.  The conference was initially scheduled for April 2020 but has been reportedly postponed at the time of writing, due to the outbreak of Coronavirus.  In recent months, the Japanese criminal justice system has been attracting unprecedented attention from the international community.

 

Being proud of a ‘medieval’ legal system?

Japan’s ‘Hostage Justice’ system, in which suspects can be held for a long period of time (a maximum of 23 days) in harsh conditions, without the presence of defence counsel, has been internationally criticised.  The UN Human Rights Committee (HRC) and the Committee against Torture (CAT) have repeatedly expressed their concerns over the excessive reliance on custodial interrogations.  Their recommendations include that Japan guarantee the right to have a lawyer present during interrogations, and introduce legislative measures setting strict limits on the duration and methods of interrogation.  Nevertheless, investigating authorities have not implemented the recommendations, still relying heavily on interrogations and confessions, despite recent criminal justice reform.

Ministry of Justice Japan

Ministry of Justice Japan

The clinging of the authorities to established practices brings to mind a scene at the CAT panel review of Japan on 21 May 2013 in Geneva.  The video footage of the incident went viral.  The Committee members had raised a number of issues, such as suspects’ access to defence counsel and time limits on detention, which the Japanese delegation continued to brush off.  This then led a committee member to describe Japan’s legal system as ‘medieval’.  In rebuttal, Mr Hideaki Ueda, Japan’s Human Rights Envoy to the UN said, “Certainly Japan is not in the middle age. We are one of the most advanced countries in this field”.  His comment provoked laughter among the committee members, which prompted a furious response from the ambassador in which he shouted “Why are you laughing? Shut up! Shut up!”, surprising both the committee members and the audience. He asserted his pride in a legal system that relies heavily on interrogations and coerced confessions, and in a series of statements published on the Ministry of Justice website after Ghosn’s escape, it appears that little has changed.

 

How did Ghosn’s case play out in Japan?

Carlos Ghosn was arrested for the first time on 19 November 2018. He was then interrogated until his indictment on 11 January 2019.  According to his former defence counsel, with the exception of one day, he was interrogated every day from 19 November to 11 January, with each interrogation lasting anything up to 11 hours.  During this period, he was arrested three times and his detention was repeatedly extended.

After three requests, the court finally granted bail and set the bond at one billion yen with 10 bail conditions.  These bail conditions included, but were not limited to setting surveillance cameras at the entrances to his residence, staying at one of his defence counsel’s offices from 9:00 am till 5:00 pm on weekdays, reporting all phone calls and visitors to the court, and a prohibition of contact with related persons.  The former CEO was then released after 106 days of confinement at Tokyo Detention House on 6 March 2019.

The investigating authority, however, re-arrested him one month later for aggravated breach of trust.  Once again, the investigating authority began harsh interrogations.  From the 5th until the 21st April, the prosecutors interrogated Ghosn, his defence counsel keeping a record of all events on his blog.  His counsel expressed strong opposition to the daily interrogations but was ignored. Following an indictment for breach of trust on 22nd April, the defence counsel filed a petition for bail.

The court granted bail on conditions similar to those of the previous bail but this time with a prohibition of contact with his wife, because the judge considered her to be related to the charge.  The former Nissan CEO was released again after posting another 500 million yen on the 25th of April. The defence team filed an appeal to the bail condition prohibiting the defendant’s contact with his wife, as a violation of article 17 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees that no one shall be subject to arbitrary interference with family.  The Tokyo District Court and the Supreme Court, however, turned down the appeal without any mention of the ICCPR.

After fleeing Japan, Carlos Ghosn issued the following statement: “I am now in Lebanon and will no longer be held hostage by a rigged Japanese justice system where guilt is presumed, discrimination is rampant and basic human rights are denied in a flagrant disregard of Japan’s legal obligations under international law and treaties it is bound to uphold”.

 

Japanese Government’s response to the escape

In a series of statements made by the Justice Minister in the immediate aftermath of Ghosn’s escape, she said, “Japan’s criminal justice system sets out appropriate procedures and is administered properly to clarify the truth in cases, while guaranteeing basic individual human rights. Each nation’s criminal justice system has its roots in its history and culture, being formulated and developed over a long period of time. Therefore, there is no superiority or inferiority among legal systems of different countries”. Her comments reflect the Government’s stance in dismissing the recommendations of international bodies such as the UNHRC.

Masako Mori press conf

A history of wrongful convictions in Japan tells us that prolonged interrogations have the effect of mentally exhausting suspects and forcing their confessions.  Protracted interrogations, such as those used against Carlos Ghosn, potentially threaten the right to remain silent, which is why UN treaty bodies recommend the Government guarantee a right to have a lawyer present during interrogations and set strict time limits.  Despite the framework laid out in International Law, the Government has remained deaf to advice from the international community.  The Justice Minister was also forced to back-track on comments she made at a press conference that Carlos Ghosn should come to Japan to “prove his innocence”, turning the ‘presumption of innocence’ on its head.  She later clarified the statement by saying she meant to say he should ‘assert’ rather than ‘prove’ his innocence.

The Justice Minister has since promised to deal with his escape and is working closely with the relevant countries, International Organisations and other stakeholders in order to fulfil this promise.  If the Government is sincere in asking for cooperation from the international community, they surely need to be sincere in following up on international recommendations.   Japan’s human rights status will be reviewed at the UNHRC’s reporting procedure in October.  Let’s hope that the Japanese Government have learned from their rather undiplomatic outburst in 2013, to listen carefully to any recommendations and consider them seriously.

ABOUT THE AUTHOR

Teppei_Ono_photo

Teppei Ono is a staff lawyer at the Japan Legal Support Center.  His main area of practice is prison law, criminal defence, immigration/refugee law and legal aid.  He has served as Secretary General of the Center for Prisoners’ Rights Japan since 2019.

An Independent Investigative Mechanism: Identifying Ways To Combat Impunity In Georgia

By Mariam Uberi

According to a number of civil society and human rights commentators, Georgia requires an effective independent body to deal with the investigation of torture perpetrated by law enforcement officials.

Between 2013 and 2015, the Public Defender’s office made 58 referrals to the General Prosecutor’s office to investigate alleged ill treatment of prisoners either by the police or prison staff. Some reports indicate that the Prosecution office has either dropped some investigations or did not provide any information during the course of the investigation.

In 2016, the number of alleged acts of ill treatment committed by the police was higher than that perpetrated by prison staff. The number of referrals for investigations into ill treatment in prisons dropped by one third. Reportedly, only two of 173 allegations of ill treatment perpetrated by police were brought to the court.

These statistics raise serious questions around whether the investigative powers vested to the State security services, the Ministry of Corrections and the Ministry of Internal Affairs lack adequate guarantees of independence and impartiality to address legal wrongs by its public authorities. Further, the Public Defender’s office and various UN human rights bodies have highlighted trends of either dismissing allegations of ill treatment against state agents or instigating charges that carry lesser sentences.

This post will review the national legislative framework on torture and ill treatment and how it is implemented. It will then provide an overview of pertinent human rights obligations and will review a draft law on independent investigative mechanisms aimed at ending impunity by law enforcement agents.

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Pulling Back the Curtain: Drugs, Human Rights and the Death Penalty

By Dr Rick Lines

The death penalty for drug offences is one of the most significant and politically charged issues within the current global drug policy debate.  This week at the meeting of the United Nations Commission on Narcotic Drugs, Harm Reduction International will release its annual report on the death penalty, monitoring global trends and developments in this important area.  That report shows that 33 countries have the death penalty for drugs offences in domestic law. While the majority of these States do not actually execute people under these laws, the report finds that seven countries – China, Iran, Saudi Arabia, Malaysia, Singapore, Vietnam and Indonesia – are actively executing people for drug crimes. Between January 2015 and December 2017, at least 1,320 people were executed for non-violent drug-related offences, a figure that does not include China, where such information is guarded as a State secret.

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Supreme court rulings open door to future ‘war on terror’ litigation in Britain

By Daragh Murray

The UK Supreme Court has handed down three landmark judgements relating to the activities of UK authorities and officials in the fight against terrorism. The court ruled on January 17 that cases could now proceed against UK officials accused of involvement in detention and rendition operations – even if foreign states and their officials were the “prime actors” of alleged human rights violations. This means that cases can now proceed against, among others, the former foreign secretary Jack Straw.

Another key element of the rulings relates to the authority to detain people in armed conflict, and the interplay between the law of armed conflict and international human rights law.

The Supreme Court’s rulings will have a significant impact on future litigation in relation to the activity of UK authorities and officials abroad. As a number of the claims relate to the extraterritorial application of the Human Rights Act and its application to UK armed forces, these cases are particularly sensitive in the current political climate.

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The revised standard minimum rules for the treatment of prisoners: Interview with Taghreed Jaber

By Munira Ali

On the 7th of April 2016, experts on prison reform and management were convened for a two-day meeting by the University of Essex Human Rights Centre and Penal Reform International (PRI) to discuss the recently revised standard minimum rules for the treatment of prisoners (also known as the Mandela rules- a name designed to honour the legacy of the late Nelson Mandela). The aim of the meeting was to come up with practical guidance for implementation, which struck a fine balance between making sure that the revised rules are not unreasonably burdensome on prison administrations and guaranteeing tangible improvement of prisoners’ treatment.

One of the experts, Taghreed Jaber, regional director of the Middle East and North Africa (MENA) region for PRI, shared her insight into the revisions. Taghreed, who is also an alumni of the University of Essex, contributed to the drafting of the revisions and views the process itself as a success. Continue reading