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	When autocrats undermine justice systems, democratizing the courts can help build back trust by Meg Satterthwaite, Katarina Sydow Special rapporteur on the independence of judges and lawyers, agencies   More than 30 years have passed since the fall of the Berlin Wall. In 1989, some scholars heralded the collapse of the Soviet Union as a conclusive victory for capitalism and democracy. But in 2023, only one of these ideologies has remained ascendant.   In an era of increasing authoritarian attacks on democracy worldwide, court innovations provide a powerful tool for cultivating democratic relationships—and therefore trust—between communities and the state.   Authoritarian threats to independent judicial systems   Around the world, elected leaders are converting populist support into authoritarian power, governments are using anti-terrorism and national security laws to impose increasingly intrusive forms of governance, and militaries are consolidating coups and states of emergency into long-term autocratic rule.   Although there is some evidence that global declines in democracy are slowing, by 2022 the state of democracy enjoyed by the average global citizen had already deteriorated to 1986 levels.   Yet not everyone is rushing to defend systems that would check powerful politicians. In 2021, 52% of respondents to the World Values Survey agreed that it was fairly good or very good to have a strong leader who does not have to bother with parliament or elections (an increase from 38% in 2009).   Although the specifics vary, would-be autocrats use similar techniques worldwide to destabilize democratic institutions. So much so that commentators refer to the existence of an “authoritarian playbook.”   Attacking the independence of judicial systems is a key feature. This is not surprising, as the legal system is one of the most important obstacles to a despot’s rise. In particular, the highest courts in many countries can declare government action to be unconstitutional, ultra vires, or otherwise against the law.   The impact of attacks on judicial systems on human rights is catastrophic: without an independent legal system, governments can clamp down on opposition, impose regressive policies, and run roughshod over rights.   Independent and impartial judges who act with integrity are key to the rule of law, which ensures that everyone is governed by predictable rules and not the will of an autocrat.   Democratic decline and populist ascent are not restricted to certain countries or regions. The World Justice Project reports that 2022 was the fifth year in a row that the rule of law declined in most countries, with checks on government power falling in 58% of countries and respect for core human rights and freedoms falling in two-thirds of countries.   Since November, the UN special rapporteur on the independence of judges and lawyers has expressed concern about judicial independence in countries as diverse as Afghanistan, China, Guatemala, Iran, Israel, Lebanon, and Tunisia.   The approaches leaders use to undermine judicial institutions are strikingly similar. Some chip away at the guardrails that ensure the separation of powers. They may take increased control of judicial selection, promotion, or discipline. Or they may change judicial term lengths, retirement age, or the size or composition of courts to ensure a majority of judges align with them.   Finally, and most brazenly, leaders may simply introduce limits on the power of courts to review the legality of their actions. These steps are intended to bring independent institutions to heel, so that they won’t restrict or challenge the exercise of a leader’s authority.   In tandem with attacks on systems, leaders may discredit, harass, and attack judges and other legal officers. They may fail to prevent—or even incite—harassment or threats by the public. Leaders often justify these kinds of abuses with the narrative that judges are out of touch and unresponsive to the will of the people.   As a result, judges may fear making decisions that will attract the ire of a powerful leader, such as upholding the rights of an unpopular minority or the political opposition. These attacks also subvert the status and credibility of judges in society, as they seek to drive a wedge between everyday people and the justice system meant to serve them.   Authoritarian regimes often succeed in claiming to be with “the people” and against “elite” judges. In part, this narrative is persuasive because it reflects some truth: conventional legal systems can be remote, alienating, and inaccessible. And, in some countries, judges come only from the highest rungs of the socioeconomic order.   To protect the courts, democratize them   To fight democratic decline and defend rights, people must believe that justice systems are worth protecting. To get there, we must reimagine justice to bring it closer to people’s lives.   Concerted energy should be channeled to dismantling systemic discrimination within the judiciary. A representative cadre of independent judges demonstrates that the system is legitimate and can offer fair outcomes for all people. This is not just cosmetic.   Diversity in judges’ life experience impacts the range of approaches to legal problems and enriches jurisprudence. And for courts to play a nuanced role in dismantling societal discrimination, the cadre of decision makers should include the expertise born of being on the subordinated end of such harms.   But diversity is not enough. We also need to open the courthouse doors and invite communities into the system. Grassroots advocates working to expand access to justice should be recognized and given a place at the table. And we should encourage the adoption of legal empowerment practices designed to make sure ordinary people can know, use, and shape the law to achieve justice, applying approaches ranging from legal education to community organizing to community-led litigation.   These practices can have a radically democratizing effect. When communities know the law and understand how to use legal processes, they are often pulled into a more deeply democratic relationship with the state.   Enhancing the extent to which courts reflect—and engage—the communities they serve can make these systems more valuable to everyday people and therefore more resilient to authoritarian attack.   In a lecture delivered in 2010, the then chief justice of South Africa, Sandile Ngcobo, stated that judicial diversity “promotes confidence because it facilitates the taking into account of different perspectives. In short,” he said, invoking the image of the blindfolded bearer of the scales, “‘diversity allows justice to see.’”   When citizens feel seen by justice systems, those systems are in turn recognized as central to democracy and human rights—worth protecting in troubled times, when judges are under attack.   * Meg Satterthwaite is the United Nations special rapporteur on the independence of judges and lawyers. Katarina Sydow is the senior advisor to the United Nations special rapporteur on the independence of judges and lawyers and an adjunct professor of clinical law at New York University School of Law.   http://www.openglobalrights.org/democratizing-justice-in-populist-era/ http://www.ohchr.org/en/special-procedures/sr-independence-of-judges-and-lawyers http://www.ohchr.org/en/documents/thematic-reports/ahrc5036-protection-lawyers-against-undue-interference-free-and http://www.ohchr.org/en/documents/thematic-reports/ahrc4447-independence-judges-and-lawyers-report-special-rapporteur http://www.ibanet.org/The-global-assault-on-rule-of-law http://worldjusticeproject.org/rule-of-law-index/insights http://namati.org/ Visit the related web page
	The national duty to investigate torture is alarmingly, universally, under-implemented by Alice Edwards Special Rapporteur on torture   June 2023   Torture and other grave human rights violations continue to be widely reported across many armed conflicts. Today, more than 100 armed conflicts are ongoing worldwide, devastating communities, winding back development, and posing severe obstacles to the protection and enjoyment of human rights.   On this International Day in Support of Victims of Torture, the UN anti-torture mechanisms call on States to uphold the absolute prohibition of torture. The UN human rights experts remind all participants in conflict that the protections of international human rights law do not cease to be applicable in situations of conflict.   The prohibition against torture is a jus cogens norm of international law, a fundamental principle that applies at all times and in all circumstances. This applies to all parties to a conflict.   The pervasive character of this norm is illustrated by the explicit prohibition of torture, not only as referenced in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and established in other international and regional human rights treaties, but also under international humanitarian law and international criminal law.   “The Committee regularly reminds States of their obligations under the Convention to ensure that education and information regarding the prohibition against torture are fully included in the training of military personnel, especially those charged with duties related to detention. States must take a zero-tolerance approach in investigating and prosecuting acts of torture committed by their regular armed forces, and those forces under their effective control,” said Claude Heller, Chairperson of the Committee against Torture. “A vital first step in this is the explicit criminalisation of torture at the domestic level.”   States who have ratified the Optional Protocol to the Convention against Torture (OPCAT) are required to establish National Preventive Mechanisms (NPMs), which are mandated to conduct visits to places of deprivation of liberty to prevent practices and procedures that present a risk of acts of torture being committed. In countries that have not ratified the OPCAT and have no NPMs, national human rights institutions or other monitoring bodies can frequently take on this role.   Suzanne Jabbour, Chairperson of the Subcommittee on Prevention of Torture, urged States to “ensure that, also in situations of armed conflict, all possible measures are taken to allow NPMs and other detention monitoring bodies continued access and monitoring to all places of deprivation of liberty.” Jabbour also called on non-State actors to facilitate similar access, stressing that “the prevention of torture is a must in all circumstances and in the interest of all parties to a conflict.”   Armed conflict poses significant challenges to the rule of law and the functioning of State institutions. Continued monitoring and documentation of acts of torture during armed conflict is essential to ensure effective investigations and prosecutions.   “War and civil conflicts can provide cover for torturers to behave with impunity”, said Alice Jill Edwards, the Special Rapporteur on Torture. “Today I am cautioning States and individuals that the use of torture is completely unacceptable and prohibited. Perpetrators must be held to account. Soldiers have a special duty to disobey orders to carry out torture or other ill-treatment and States must establish laws to protect them against prosecution for doing so. Everyone must stand up to torturers and those who condone it.”   The United Nations Voluntary Fund for Victims of Torture, which gives direct help to victims of torture and their families, underlined the disastrous effects of war on civilians, and the impact that torture has on the lives of victims. Lawrence Mute, Chairperson of the Board of Trustees of the UN Voluntary Fund for Victims of Torture, expressed his concerns that the needs of survivors are often overlooked during armed conflict and transitional justice processes.   “States must do their utmost to ensure speedy access to rehabilitative services for victims of torture, including medical, psychological, legal, social and humanitarian assistances. During armed conflict, State services are prone to deteriorate, at a time when victims need them most. This is especially the case for specialised services for victims of torture subjected to discrimination or in more vulnerable situations, such as people with disabilities and members of minority communities, including national or ethnic, racial, indigenous, religious, sexual and gender minorities,” he said.   http://www.ohchr.org/en/statements/2023/06/un-experts-call-states-uphold-absolute-prohibition-torture-armed-conflict http://www.ohchr.org/en/topic/torture   Mar. 2023   States must pursue justice “at home” for crimes of torture, to achieve meaningful accountability, healing and reconciliation, the UN independent expert on torture said today.   In a report to the 52nd session of the Human Rights Council, the Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, Alice Edwards, urged national authorities to take ownership of justice processes and operate as primary responders in cases of torture and other inhuman treatment.   “Despite the growth in international criminal courts and tribunals and our collective commitment to those entities, their capacity to deal with the scale and scope of torture crimes being perpetrated today will never be enough,” Edwards said, emphasising the importance of national proceedings.   In her report, the Special Rapporteur pointed at a “glaring gap” between the promise and reality of the international prohibition of torture and recalled that every State has a duty to criminalise and investigate crimes of torture in national law, prosecute or extradite suspects, and sentence offenders with penalties that reflect the gravity of the offence.   “The national duty to investigate torture is alarmingly, universally, under-implemented,” she said.   The report highlighted the main obstacles hindering full and prompt investigations into allegations of torture, including institutional, regulatory, political, and practical challenges. The report also shared promising State practices to implement the duty to investigate torture, including documenting that at least 105 countries have adopted an explicit criminal offence of torture.   Despite this progress, Edwards said too few incidents of torture and other ill-treatment are officially reported, and – of those that are reported – cases regularly collapse or are withdrawn before a satisfactory conclusion.   “The difference between a crime of torture and an ordinary crime is that torture is first and foremost a crime committed or enabled by public officials. This power asymmetry between the accuser and the accused puts the alleged victim in a situation of particular precarity,” the Special Rapporteur said.   Edwards’ report documented how victims were often threatened and intimidated into withdrawing their allegations, risking vexatious counter-allegations and associated reputational damage, or distrusting the wheels of justice.   "Complainants may still be in custody or under the control of the very authorities they are making allegations against," she said. "The risks of retaliation and violence - including further torture or 'disappearance' - are real. The stakes are high.”   The expert called on States to establish independent investigative bodies that ensure that victims and survivors were ‘given voice’, fully empowered and could actively participate in any legal proceedings involving torture.   She urged States to treat complainants with due respect, compassion and dignity and to offer appropriate rehabilitation and protection measures.   “Early access to trauma counselling and other forms of rehabilitation are not only in the interests of complainant’s mental health, but they also help them become more reliable witnesses in court proceedings,” she said.   "National torture trials are not a threat to state authority. On the contrary, what threatens a government’s legitimacy is torturing persons, refusing to investigate and try the perpetrators, and allowing the torturers to go unpunished," Edwards said.   “A state’s legitimacy will be enhanced if they indeed defend truth and justice, rather than be seen as accomplices in the crime of torture.”   http://www.ohchr.org/en/press-releases/2023/03/national-prosecutions-key-breaking-cycle-impunity-torture-un-expert http://www.omct.org/en/resources/news-releases/global-consortium-fuels-civil-societys-fight-against-torture http://www.cvt.org/statements/cvt-applauds-new-un-study-on-global-trade-in-goods-used-for-torture/   Mar. 2023   Libya: Crimes against humanity committed since 2016. (United Nations News)   UN-appointed independent human rights investigators on Monday said there are grounds to believe that Libyan authorities and armed militia groups have been responsible for “a wide array” of war crimes, and crimes against humanity in recent years.   In the case of State security forces, human rights violations were committed to quash dissent and exploit vulnerable migrants, with no justice in sight, according to the latest report, from the Independent Fact-Finding Mission (FFM) on Libya.   It documents the “widespread practice” of arbitrary detention, murder, torture, rape, enslavement and enforced disappearance in the country. In addition, the Mission states for the first time that sexual slavery was committed against migrants.   “There is an urgent need for accountability to end this pervasive impunity,” said Mohamed Auajjar, the Mission’s chair. “We call on Libyan authorities to develop a human rights plan of action and a comprehensive, victim-centred roadmap on transitional justice without delay, and hold all those responsible for human rights violations accountable.”   Libya has been in turmoil since the ouster of former long-time leader Muammar Gaddafi, with the country divided between rival administrations and warring militias, with a UN-recognized Government of National Accord based in the capital Tripoli and the forces of General Khalifa Haftar’s so-called Libyan National Army holding sway in the east and southern areas of the oil-rich nation.   No accountability   The Mission which has reported since 2016, noted that accountability for the violations was severely lacking, as most survivors were too afraid and mistrustful of the justice system to officially report the abuse. As a result, the violations continue “unabated”, the Mission said.   As its mandate comes to an end next week, the Mission called for the creation of new rights monitoring and investigation mechanisms, to “support Libyan reconciliation efforts” and help the authorities achieve “transitional justice and accountability.”   Widescale exploitation of migrants   The report notes that more than 670,000 migrants from over 41 countries were present in Libya in the period since July 2022, when the Mission’s mandate was last extended, until March of this year.   The Mission interviewed more than 100 migrants over the course of its investigations and its report points to “overwhelming” evidence of systematic torture and sexual slavery, among other violations.   Detention centres in which migrants were enslaved were “under the actual or nominal control” of the authorities, including the Directorate for Combating Illegal Migration and the Libyan Coast Guard.   The “widescale” exploitation of migrants is a lucrative business, the Mission said, noting that “trafficking, enslavement, forced labour, imprisonment, extortion and smuggling generated significant revenue for individuals, groups and State institutions.”   Abuses in detention   Detention-related violations were also found to affect Libyans on a large scale, and the Mission points to the responsibility of State authorities and their leadership.   The report notes that victims “came from every segment of Libyan society and included children, adult men and women, human rights defenders, political participants, civil society representatives, members of military or security forces, legal professionals and persons of perceived or actual diverse sexual orientations and gender identities.”   Most of those interviewed by the Mission were held without charge in horrific conditions, “subjected regularly to torture, solitary confinement, held incommunicado” and denied access to water, food and other essentials.   According to the Mission, the situation of women in Libya has only worsened over the past three years, in a context of a “weakening of State institutions” amid the rising power of armed groups.   The report documents “systematic” discrimination against women, a rise in domestic violence, which is not punished by any comprehensive law, and a lack of accountability for crimes against prominent women leaders, such as the enforced disappearance of member of parliament Sihem Sergiwa nearly four years ago, and the killing of Hannan Barassi in 2020.   The Mission reiterated its call on the authorities in Benghazi, where the two high-profile crimes took place, to “adequately investigate” them and bring the perpetrators to justice.   Investigation mechanism still needed   Established by the Human Rights Council in 2020 to investigate human rights violations by all parties since the beginning of 2016, the Mission’s mandate ends on 4 April, at a time when “the human rights situation in Libya is deteriorating, parallel State authorities are emerging and the legislative, executive and security sector reforms needed to uphold the rule of law and unify the country are far from being realized,” says the report.   In this context, the Mission calls on the Human Rights Council to establish a “sufficiently resourced, independent international investigation mechanism,” and on the Office of the United Nations High Commissioner for Human Rights to create another mechanism “with an ongoing mandate to monitor and report on gross human rights violations in Libya.”   Violators should be ostracized   Among other recommendations, the report calls on the international community to “cease all direct and indirect support to Libyan actors involved in crimes against humanity and gross human rights violations against migrants, such as the Directorate for Combating Illegal Migration, the Stability Support Apparatus and the Libyan Coast Guard.”   The Mission also says it will share its findings with the International Criminal Court, including a list of “possible perpetrators” of international crimes.   Political deadlock   Following a UN-brokered ceasefire in October 2020, elections were due to take place in December 2021, but were postponed. Last month, Abdoulaye Bathily, Special Representative for Libya and head of the UN’s political mission in the country (UNSMIL) announced to the Security Council a new initiative aiming to facilitate the holding of presidential and legislative elections before the end of the year.   Speaking about the need for reconciliation in Libya, Mr. Bathily said at the time, “Reconciliation is a long-term process that should be inclusive, victim-centred, rights-based and grounded on transitional justice principles.”   http://news.un.org/en/story/2023/03/1135052 Visit the related web page
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