By Toby M. Cadman and Carl Buckley
On 5 February 2016 the UN Working Group on Arbitrary Detention ruled on a Communication filed on behalf of the exiled Editor-in-Chief of Wikileaks. It ruled that since his arrest on 7 December 2010 he had been held arbitrarily. The Working Group recommended that the UK immediately release him and that he should be afforded the right to compensation.
The decision is controversial for a number of reasons and has been highly criticised by the UK and Swedish Governments and a number of independent legal commentators. The UK Foreign Secretary has even gone so far to say that the decision is 'ridiculous' and has attacked the Working Group as lacking any real legitimacy. The position of the Government is that it is not legally binding and the members of the Working Group and not jurists, but academics.
The response of the UK is intriguing, particularly if one looks back to just a few months ago when the same Working Group, with the same members, ruled that former President Mohamed Nasheed was being held in the Maldives arbitrarily and in breach of international law. The Working Group made similiar recommendations in that case.
The UK Government heavily criticised the Maldives for not immediately implementing the UN ruling. On 5 October 2015, Hugo Swire, Foreign Office Minister, stated on Twitter that the "UN opinion that detention of former #Maldives President #Nasheed was arbitrary reinforces UK calls for release of all political prisoners." This has been followed by the UK Government calling for sanctions following, amongst other things, the UN opinion. There was no suggestion that the members lacked legitimacy or the decision reached failed to take into account the submissions put forward by the Government.
It is disconcerting that it would appear to be 'personalities' rather than the 'issues' that is the driving force here. Both cases concern 'celebrity' politicians and in both cases there is an equal measure of criticism of the decision reached and the State's response. In Maldives, the threat of sanctions has been repeatedly raised, but the UK is less likely to waive from its current position of bloody-mindedness.
The hypocrisy is clear for all to see.
In dealing with human rights accountability over the past decade, I have become accustomed to feelings of frustration, of annoyance, and on occasion (restrained) outrage at the level of antipathy and hypocrisy.
During this past year however, my feelings of frustration has evolved; I am now deeply despondent. Despondent, as the United Nations, supposedly the custodian and warden of international law has fallen foul of the quote of Dutch philosopher, Baruch Spinoza, who opines "The greatest pride, or the greatest despondency, is the greatest ignorance of one's self".
I have written in the past that one such organ of the United Nations, the Human Rights Council, has become the 'Eurovision Song Contest' of international justice. States are grouped by trade relations or ideological ties. This is evidenced most recently by the UK support of Saudi Arabia on the basis of 'intelligence sharing'. Human rights light States such as China, Russia, Iran, Egypt, Syria and Cuba frequently support each other and ensure there is little or no accountability in their own back yard.
The Human Rights Council, as part of its core function is to highlight, draw attention to, and take action against those States that commit human rights violations. This ought to be done without fear or favour. There ought not to any bias or double standard, and yet these two flaws are demonstrably highlighted in the abject lack of action taken in respect of a number of States.
One issue that has been consistently avoided by the international community, and importantly United Nations, is the situation in Bangladesh. I have been involved in Bangladesh since late 2010, principally advising on the war crimes trials, but more recently documenting mass human rights violations that have occurred under the current administration since 2012. This has involved filing numerous communications with the UN Special Procedures and the Prosecutor at the International Criminal Court, briefing Governments, non-governmental organisations and the media.
It is no secret that I am instructed to represent a number of individuals on charges of crimes against humanity and genocide before the Bangladesh International Crimes Tribunal (ICT) and therefore I will continue to act in the best interests of my clients - that includes ensuring they have a fair trial. However, the issues that I have been raising over the years are not subjective, are not tainted with bias, nor are they simply a 'legal tactic'.
The international community has consistently spoken with unity, in that the ICT in principle should be applauded as there can be no justification for impunity; a position that I have agreed with since the inception of the ICT. However, as much as it is to be applauded as a principle, the practice of the ICT is something quite different. It has been, and should continue to be universally condemned for the manner in which it ignores fair trial rights and is simply a tool of political oppression and revenge.
It is no coincidence that the rise in civil unrest and the wholesale fracturing of an entire society has arisen in conjunction with the ICT.
What is of surprise, and thus gives rise to my own despondency is that the custodian of international justice continues to remain silent.
The Human Rights Council prides itself on the position it commands, and rightly so. It has highlighted many areas of concern, and has been instrumental in the pursuit of international justice and the observance of human rights. Why then has it remained largely silent in the face of summary execution, enforced disappearance, political oppression, and arguably crimes against humanity in Bangladesh.
I simply cannot fathom why there are wholesale demands for action, and threats of sanctions against states such as the Maldives, whom I also represent, when the subject of this ire is one individual, a former President who has been shown to be a skilled manipulator, strong on rhetoric but weak on action, and above all, an individual who has publically admitted the conduct for which he was convicted. Yet, States such as Bangladesh where hundreds have been executed and forcibly disappeared have not be similarly condemned.
Similarly, States such as Egypt, Saudi Arabia and Bahrain, all of whom have an appalling human rights record barely receive a mention.
One must question the position adopted, and further, one must question why there is such a selective approach to accountability.
Individual states adopting a selective approach to human rights observance, is one thing, such as the UK's hypocritical (and indefensible) position towards Egypt and Bahrain. The position cannot be justified, and the UK is wholly wrong in its position, yet it is balancing its economic and political need against its obligations towards human rights. It is a deplorable position to take, again, to echo the comment above, why condemn the Maldives and demand action and threaten sanctions, yet welcome President Sisi, mastermind of a military coup that has seen thousands murdered and tens of thousands imprisoned, and further, ignore completely Bangladesh.
It is a wholly different issue however when the independent institution of the UN demonstrates similar bias, and similar double standards. The Human Rights Council ought not to be politicised, it was designed to be free from such influence, and yet, what is the explanation for its inaction towards certain states.
Human rights violations are to be addressed wherever they may arise, without fear or favour. Pride and ignorance are words that should never be uttered. The evidence of gross and massive human rights abuses is evident throughout Bangladesh; the evidence is there for all to see. Without action, such abuses will continue to be perpetrated by the government as they are effectively being given tacit approval.
Without condemnation and action, further individuals are likely to be executed imminently by the Government of Bangladesh, executed following a trial that only the most ardent supporters of the Awami League have the arrogance to suggest are appropriate, and following trials that have been universally condemned outside of Bangladesh.
Those that have been unfairly convicted and some of whom have been executed in Bangladesh do not make the headlines. They are not labelled as 'environmental activists' or 'pro-democracy whistleblowers' as Julian Assange and Mohamed Nasheed have been. They do not have celebrity lawyers. They are mostly members of an Islamist political movement. The question is however why should that matter. A democracy is not measured by how it treats its most treasured subjects, but how it treats those accused of the most heinous crimes and its commitment to the rule of law.
I truly hope that my despondency is ill-founded and that it is merely a passing cloud that will be followed with the rays of hope of justice, of accountability, and the end of impunity. Only time will tell.