01 May, 2012

Foreign and Commonwealth Office - 2011 Report - Human Rights and Democracy

A 392 page report - Human Rights and Democracy - has been published by the Foreign and Commonwealth Office (FCO).  The report deals with the year 2011 and divides into 9 principal sections dealing with (1) The Arab Spring; (2) the FCO's Human Rights priorities; (3) Promoting British values of democracy, criminal justice and the rule of law, equality and non-discrimination; (4) Human Rights in securing Britain's national security; (5) Human Rights in securing Britain's prosperity; (6) Human Rights for British nationals overseas; (7) Working through a rules-based international system; (8) Promoting Human Rights in Overseas Territories; (9) Human Rights in countries of concern.

The full report is required reading for those with serious interest in human rights globally.   The following is a summary of the section dealing with Criminal Justice and the Rule of Law - (part of Section 3).  This commences at page 42 of the report.

Human rights and the rule of law are
inextricably linked. The rule of law encompasses representative government, an independent judiciary, laws that are consistent with human rights standards and proper systems of accountability. These elements are crucial to the safeguarding of human rights, to ensuring that individuals are treated equally before the law, and to prevent those in power from acting in an unfettered or arbitrary way.  The FCO judges human rights in other countries against the standards of the Universal Declaration of Human Rights and instruments such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights and the report states that - "We are committed to ensuring that our own actions accord with our values and match those enshrined in international human rights law."  

In 2011 guidance for staff was issued on reporting information or concerns about torture or mistreatment overseas, as well as guidance for UK Government officials on ensuring that the human rights implications of our security and justice assistance work overseas are fully considered – the Overseas Security and Justice Assistance (OSJA) Human RightsGuidance

The Strategy for Abolition of the Death Penalty was updated in October 2011 and a Strategy for the Prevention of Torture has been developed.

The death penalty 

It is the long-standing policy of the UK to oppose the death penalty in all circumstances as a matter of principle. It undermines human dignity.  There is no conclusive evidence that it has any value as a deterrent.  Any miscarriage of justice is irreversible and irreparable. Global abolition of the death penalty continues to be a priority for the UK Government. 

The government seeks to increase the number of abolitionist countries, or countries with a moratorium on the use of the death penalty. Secondly, the government seeks further restrictions on the use of the death penalty in retentionist countries and reductions in the numbers of executions. Thirdly, there is an aim to ensure that EU minimum standards on the death penalty, such as fair trial rights and non-execution of juveniles, are met in countries which retain the death penalty.  Priority countries are China, the US, Belarus, Commonwealth Caribbean and Iran.  

Countering the death penalty in the Commonwealth

The Commonwealth is a key channel for furthering the government's objectives on the death penalty. Out of the 58 retentionist countries in the world, 36 are in the Commonwealth. Of those, 15 states are abolitionist in practice and only 11 have carried out executions since 2000. 

In the last two years, only four Commonwealth member states executed prisoners: Bangladesh, Botswana, Malaysia and Singapore. However, with more than 11,000 people still on death row in the Commonwealth, much work remains to be done. 

The government keeps the subject on the agenda and hopes to foster further debate on the use of the death penalty within the Commonwealth and, to that end, there are various projects such as the Death Penalty Project to conduct work in Trinidad and Tobago and Barbados.  The report claims that, as a result of this project work, the privy council ruled that the mandatory death sentence for felony murder in Trinidad and Tobago was unconstitutional. 

Note: see Nimrod Miguel v The State [2011] UKPC 14. Whatever the arguments relating to the death penalty, the government in Trinidad and Tobago are moving to abolish appeals to the Privy Council.
Prime Minister Kamla Persad-Bissessar announced that legislation will be brought to the Parliament to remove the British Privy Council as this country's final appellate court and replaced with the Caribbean Court of Justice (CCJ)—with respect to criminal matters. Civil matters will still go before the Privy Council.

Torture prevention 

There is an absolute prohibition on torture in international law, which is contained in various treaties and is a rule of customary international law, binding on all states. The UK Government consistently and unreservedly condemns torture. Preventing torture and tackling impunity for those who torture are essential components of safeguarding Britain’s security; and they are integral to fair legal systems and the rule of law. 

In March 2011, the FCO updated and reissued guidance for staff on reporting information or concerns about torture and mistreatment overseas. The guidance reiterates the long-standing policy that staff must report any abuses they learn about so that, when appropriate, we can take action.   Furthermore, the Foreign Secretary’s Advisory Group on Human Rights created a Sub Group on Torture Prevention.  The group will meet twice per year and comprises members of the Foreign Secretary’s advisory group as well as academics, UN and Council of Europe experts and representatives from Amnesty International, the Association for the Prevention of Torture, Freedom from Torture, Human Rights Watch, the International Centre for Prison Studies, Penal Reform International, REDRESS and the World Organisation Against Torture. 

The sub-group discussed in detail the draft of the FCO’s first torture prevention strategy, which went on to be published in October as the FCO Strategy for the Prevention of Torture 2011–2015

The strategy outlines three main goals: ensuring that there are legal frameworks in place which are enforced to prevent and prohibit torture; developing states’ political will and capacity to prevent and prohibit torture; and helping organisations on the ground, including government and non-government actors, to get the expertise and training they need to prevent and prohibit torture. 

The government's torture prevention activity continues to be to encourage states to sign, ratify and implement the UN Convention against Torture (CAT) and its Optional Protocol (OPCAT). 

A particularly interesting part of the report looks at the  International justice system.

The Government is committed to the principle that there should be no impunity for the most serious international crimes. The United Kingdom is unique in being actively engaged with all six existing international criminal tribunals: as a State Party to the Rome Statute of the International Criminal Court; as a member of the Security Council, which oversees the International Criminal Tribunals for the former Yugoslavia and Rwanda; and as a major donor and member of the management bodies of the voluntary-funded tribunals for Sierra Leone, Cambodia and Lebanon. 

International Criminal Court

Since the International Criminal Court (ICC) was set up in 2002, it has established itself as a cornerstone of international justice. The report notes that the UN Security Council referred the situation in Libya to the the court.  In October, an investigation was opened into events in Côte d’Ivoire

Both these investigations moved swiftly, with the court issuing arrest warrants in June on charges of crimes against humanity for Colonel Qadhafi, Saif Qadhafi and Abdullah al-Senussi, and the transfer in November to ICC custody of the former Ivorian President Laurent Gbagbo.

Note: It remains to be seen whether the ICC actually tries Saif Qadhafi.   The Guardian 1st May "Saif Gaddafi should go on trial in Libya, war crimes tribunal told"  Here, it is reported that the ICC has been requested by Libya to relinquish its claim to try Gaddafi.  Libyan criminal law retains a death penalty.

Sir Adrian Fulford, the UK’s judge at the ICC, will come to the end of his term in 2012 and will step down when he completes his current work on the Thomas Lubanga Dyilo trial. He will be replaced by Howard Morrison QC, who was elected during judicial elections at the Assembly of States Parties in December. 

International Criminal Tribunals for the former Yugoslavia and Rwanda

In 2011, the UK continued its leading role in promoting and assisting the work of the UN’s International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). 

2011 was a landmark year for the ICTY. The last two remaining fugitives (Ratko Mladić and Goran Hadžić) were both apprehended by the Serbian authorities and transferred to the tribunal to stand trial. This was a seminal moment for international justice and an important step for regional reconciliation. 

The UK also supports the work of the ICTR in tackling impunity and bringing justice to the Rwandan people and also the the development of an International Residual Mechanism for CriminalTribunals (IRMCT). The IRMCT plans to safeguard the legacy of both the ICTY and ICTR, as they complete their trials and appeals. 

This process includes work to ensure that remaining fugitives face justice, that witnesses remain protected, and that appropriate arrangements are made for the management of each tribunal’s archives. As evidence of our support, a UK candidate (Ben Emmerson QC) was put forward and successfully elected to serve as a judge on the IRMCT. 

Extraordinary Chambers of the Court of Cambodia 
Case two commenced in November 2011 amid huge public interest. On trial are three of the four remaining senior leaders of the Khmer Rouge regime (the fourth was declared medically unfit to stand trial). The case has been split into three segments: crimes against humanity (in relation to the forced movement of people out of cities in 1975–6); genocide (of Cham Muslims and Vietnamese); and war crimes (including prison camps). 

The first segment of the case (crimes against humanity) is expected to last two years. Following the resignation of the court’s lead co-investigating judge in October 2011, a review is under way into his decision not to carry out any further investigations in respect of case three. 

The outcome of a court investigation into a possible 4th case is awaited. Both cases three and four concern alleged senior officials of the Khmer Rouge regime. In February 2012, an appeal upheld the conviction of Kaing Guek Eav, also known as Duch, who was sentenced to 35 years’ imprisonment in case one of crimes against humanity. 

Special Court for Sierra Leone 
The remaining trial - Charles Taylor - has been completed though an appeal is possible.  Taylor serve his sentence in the UK under a 2007 sentence enforcement agreement. 

Agreeing funding for the Special Court for Sierra Leone, also pledged on a voluntary basis, has grown increasingly difficult in recent years. However, we helped to mitigate the problem in 2011 through securing emergency funding from the UN and led efforts to secure further UN funding for 2012. 

Special Tribunal for Lebanon 
The past year saw the Special Tribunal for Lebanon (STL) issue its first four arrest warrants for persons suspected to be involved in the assassination of former Lebanese Prime Minister Rafiq Hariri and the death of 22 others in February 2005. No arrests have so far been made. As a strong supporter of the STL, the UK announced a £1 million funding contribution for the tribunal, which brought our total contribution to £2.3 million. 

International humanitarian law (IHL)

A strong UK delegation actively participated in the 31st International Conference of the Red Cross and Red Crescent which took place from 28 November to 1 December in Geneva. This was an important opportunity to further UK IHL and humanitarian policy objectives, and we made a number of focused pledges on actions that we intend to take in the coming years. In December, Professor Charles Garraway was re-elected to the International Humanitarian Fact-Finding Commission (IHFFC), an international institution which seeks to ensure the respect for, and faithful implementation of, IHL. Out of the 73 high-contracting parties to the IHFFC, only 15 have members on the commission. 

Human rights offenders and entry to the UK 

Britain welcomes visitors from around the world – this year even more than ever. But not those who have perpetrated human rights abuses. Foreign nationals from outside the European Economic Area may only come to the United Kingdom if they satisfy the requirements of the Immigration Rules. Where there is independent, reliable and credible evidence that an individual has committed human rights abuses, the individual will not normally be permitted to enter the United Kingdom.

----- 1st May 2012 -----

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