JURIST - Paper Chase: Saturday, February 20, 2010

[JURIST] The UK Equality and Human Rights Commission (EHRC) [official website] on Saturday called for an independent investigation [press release] into allegations that the government had knowledge of and was complicit in the torture of Binyam Mohamed [BBC profile; JURIST news archive] and 24 other British residents and citizens while they were held abroad as terror suspects. The EHRC's statement cites a letter from the organization's chair, Trevor Phillips [official profile], sent to Secretary of State Jack Straw [parliamentary profile] calling for the government to address concerns that the case of Mohamed was not an isolated instance. The EHRC called for an open and independent review, saying:

The Government has stated unequivocally that the allegations are unsubstantiated and that it does not condone or support torture carried out by foreign agencies. However, the Commission does not believe the Government's response to these allegations is sufficient and that not enough has been done to reassure the Commission and the public that these allegations are unfounded.

The EHRC's appeal coincides with the recent Court of Appeals disclosure of evidence [JURIST report] that Mohamed received "deliberate ill-treatment" by the US.

The former attorney general for England and Wales Lord Peter Goldsmith [JURIST news archive] earlier this month called for an investigation [JURIST report] into whether British intelligence agencies were complicit in the torture of terror suspects abroad. Days earlier, MI5 [official website] Director General Jonathan Evans [official profile] had denied [JURIST report] accusations that MI5 had collaborated with the US over the alleged torture of Mohammed in response to criticisms that the organization did not respect human rights, that it misled parliament, and that it supported a culture of suppression.

[JURIST] The US Department of Justice (DOJ) [official website] has overruled the findings of a report [text, PDF] released Friday concluding that two Bush administration lawyers committed professional misconduct when they wrote memos [JURIST news archive] authorizing the use of certain interrogation techniques that critics have called torture. Instead, the DOJ said that John Yoo [academic profile; JURIST news archive], and Jay Bybee [official profile; JURIST news archive] were only guilty of "poor judgment" in writing the memos. An internal ethics investigation by the Office of Professional Responsibility (OPR) concluded that Yoo had committed "intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice." The report also found that Bybee had committed professional misconduct when he acted in "reckless disregard" of his duty to exercise independent legal advice. However, David Margolis, an associate deputy attorney general, released a separate memo [text, PDF] overruling the OPR's report, finding its analysis was flawed because it did not have a clear definition of what constitutes professional misconduct. Margolis said:

This decision should not be viewed as an endorsement of the legal work that underlies those memoranda. However, OPR's own analytical framework defines "professional misconduct" such that a finding of misconduct depends on application of an known or unambiguous obligation or standard to the attorney's conduct. I am unpersuaded that OPR has identified such a standard.

While Margolis said that the memos contained "significant flaws," he said not all flaws constitute professional misconduct. He also criticized OPR for failing to identify a violation of a specific bar rule, but instead cobbling together standards of conduct from the DC Rules of Professional Conduct, an Office of Legal Counsel (OLC) [official website] memo issued in 2005, and other sources that do not directly apply. The American Civil Liberties Union (ACLU) and the Constitution Project [press releases] both called for a thorough investigation into the memos that targeted more senior Bush administration officials.

In July, Yoo appealed a district court ruling [JURIST reports] that allows a lawsuit alleging his complicity in torture to proceed. Meanwhile, former US attorney general John Ashcroft has defended the advice the DOJ gave the Bush administration on the use of certain interrogation techniques, saying that all guidelines issued by his office were legal. A coalition of organizations has filed complaints [JURIST report] with bar associations attempting to get Bybee, Yoo, and other Bush administration lawyers disbarred. Last March, a Spanish judge asked prosecutors to consider [JURIST report] investigating Bush administration lawyers, including Yoo and Bybee, for human rights violations under the principle of universal jurisdiction.

[JURIST] International Criminal Court (ICC) [official website] deputy prosecutor Fatou Bensouda [official profile] said Friday that Guinean authorities likely committed crimes against humanity when more than 150 pro-democracy protesters killed in Conarky [BBC backgrounder] in September 2009. At the conclusion of her three day visit [JURIST report], Bensouda, a Gambian lawyer, said that the ICC would work with the Guinean legal system [AFP report] to prosecute the offenders. Meanwhile, Guinean Prime Minister Jean Marie Dore [NYT profile] said that his country's legal system would have great difficulty [BBC report] prosecuting the crimes due to the lack of an impartial judicial system.

Earlier this month, a commission created by Guinea's junta announced [JURIST report] that former Guinean junta aide Lieutenant Aboubacar Cherif "Toumba" Diakite is the sole government official to blame for the massacre. The commission's conclusion contradicts a UN report [JURIST report] that blamed junta leader Moussa Dadis Camara [BBC profile], Minister for Special Services Moussa Tiegboro Camara, and Toumba for the September 28 slayings. In October, the ICC placed the Guinean military under preliminary investigation for human rights violations related to the Conakry incident, and the UN and Guinea both announced they were creating commissions to investigate [JURIST reports] the killings. The Conakry incident stemmed from a pro-democracy demonstration against Camara, who intended to push elections forward three months and stand for re-election.

[JURIST] The Council of Europe (COE) [official website] reached a joint declaration [text, PDF; press release] Friday to undertake reforms of the European Court of Human Rights (ECHR) [official website] by the end of 2011 in order to address the increasing number of complaints. The ECHR currently has a backlog of approximately 120,000 cases, of which an estimated 90 percent are inadmissible or lack a legal basis. At the Interlaken Conference [official website; fact sheet, PDF], all 47 member states recognized that reform is "indispensable and urgently required" in order to"reduce the backlog of cases and to adjudicate new cases within a reasonable time," as well as to "ensure the full and rapid execution of judgments of the Court and the effectiveness of its supervision by the Committee of Ministers." COE Commissioner of Human Rights Thomas Hammarberg remarked [text, PDF]:

[T]here is a serious gap of systematic implementation by member states of the Court judgments. Behind these figures one cannot but see the necessity to improve human rights protection at national level.

Any discussion about the difficulties of the European Court must focus on the need for prevention. The main question is not why the Court has difficulties to cope, but why so many individuals feel the need to go there with their complaints.

The declaration's Action Plan recognizes the need to preserve the right of individual petition, but considers changes to procedures that will reduce repetitive cases and filter admissible cases. Some of the measures proposed aim to increase efficiency [BBC report] by reducing the number of judges required to carry out some of these procedures.

The Swiss Chairmanship of the European Council of Ministers called the conference [SwissInfo report] amid concerns that the additional protocol on human rights recently ratified by all COE members would be insufficient to address the problems the ECHR currently faces. In January, Russia became the last COE member to ratify [JURIST report] Protocol 14 [text], which includes reforms to increase efficiency of the ECHR with measures such as filtering out inadmissible and repetitive cases. Russia was initially opposed to ratifying the protocol, which it claimed was politically motivated since an estimated 27,000 of the pending cases originated in Russia and reforms would enable them to be heard much sooner.