Dear Donald…

As lawyers around the world watch with apprehension to see how President-Elect Trump will handle policy engaging the rule of law and human rights, Katherine Duncan reports on the IBA Human Rights Institute’s open letter to the incoming commander-in-chief

In September, just a short distance away from The White House and as we watched the events of the US Presidential Campaign unfold, the International Bar Association’s Human Rights Institute (IBAHRI) held an open forum at the IBA Conference in Washington, DC.

It discussed the draft of a letter which would make its way to the Oval Office to sit on the desk of either President Clinton or President Trump.

The forum was constituted of lawyers predominantly from outside the US, conscious that the most powerful country in the world did not always bow to the rule of law. The international legal community, through the letter, sought to remind the President-Elect that when terror strikes, the President must still uphold the rule of law or terror ultimately wins. Participants at the session were provided with a template letter and invited to make suggestions on what to include, which would then be completed by the staff at the IBAHRI, and presented as an open letter to the new incumbent.

Expert panel

A panel of experts opened the session. Baroness Kennedy chaired the panel which comprised Hans Corell, former Under-Secretary-General for Legal Affairs and the Legal Counsel for the United Nations; Cori Crider, Reprieve; Ryan Goodman, New York University School of Law; and D’Arcy Kemnitz, National LGBT Bar Association. The forum discussed and debated both international and domestic scenarios which engage the rule of law, with which the next American President would have to grapple.

Corell opened the discussion by reminding the forum on the importance of the law in the wellbeing of a nation and the world. The IBAHRI does not write a letter to every incoming head of state, but because the US is considered to be one of the leading lights of democracy, and the concept of rights and civil liberties is so fundamentally embedded in their constitution, it is often looked to by other countries to see how their legal system should run.

Goodman spoke of US support for foreign partners in counter-terrorism, eg for Syrian rebels fighting Islamic State. The next President would need to consider how, and to what extent, it can support foreign partners in its international agenda, if those partners violate international law and international human rights law. A pre-existing framework for the relationship would need to be clear and transparent.

The President-Elect will also need to consider what legitimate targets are under international law. Goodman suggested, for example, that parts of the so-called Islamic State (IS) act more like a state than they do a terrorist group, therefore there may be people who work in governance within that organisation which would not be legitimate targets. Or, is everyone who works for IS a legitimate target? Thought will also need to be given to what objects are targetable. IS’s hold on oil and gas provides revenue; so is it lawful to target facilities and what are the limits on that?

Question of timing

There was much debate on whether the IBAHRI should send the letter to the candidates, rather than waiting until after the election. Some felt, given Donald Trump’s obvious scourging of human rights, it would be more appropriate to draft the letter immediately and release it to the media. The IBAHRI had intended to send it to the newly elected President, so as to prevent any claim of interference in another sovereign state’s electoral process. With the power the US President holds globally, and the extent to which the Presidential campaign is televised around the world, it can sometimes feel as though this is not just a domestic election but an international election. Nevertheless, it was concluded that the international legal community could not, and should not, be seeking to interfere in a country’s democratic process.

Although a number of issues were suggested, all of which were of great importance, such as climate change, nuclear disarmament and corruption, it was determined that a concise letter would hopefully have the greatest impact, rather than a long list (see summary, below).

The final draft has yet to be finalised. While some felt that the exercise was completely pointless with Donald Trump as commander-in-chief, the consensus was that the international legal community should use its voice to keep these issues on the agenda and to inform the next President that lawyers around the world will be watching to see how the new administration handles policy which affects human rights, and will be seeking to promote the rule of law and the furtherance of those rights.

Contributor Katherine Duncan, 5 St Andrews Hill

Further information

A link to a video of the session can be found here

A letter to (Donald Trump’s) America

Use of torture in the war against terror and treatment of prisoners

  • Trial is absolutely essential to the rule of law. Crider put it to the forum that the next President would have to deal with issues of torture, targeted killings and transparency in response to creeping secrecy in the name of the war on terror (eg the force-feeding of prisoners in Guantanamo). Corell spoke of Guantanamo and Abu Ghraib as ‘blotches on the star spangled banner’.
  • The letter will also feature a note on treatment of its own prisoners at home. The high standards that we have come to expect of the US cannot be met when there is mass incarceration.

Ratification of international human rights treaties

  • Ratification of human rights treaties, including the United Nations Convention on the Rights of the Child: it is hard for the global community to convince developing nations to sign international treaties on human rights when the US refuses to do so.
  • The forum did not go so far as to take a stance on whether the US should join the International Criminal Court, but did express a desire for the positive engagement shown under the Obama administration to continue.

Decriminalisation of homosexuality across the globe

  • The US needs to take the lead in the decriminalisation of homosexuality around the world. This is persecution of people, and if it took a greater stand on the matter, other countries may listen.
  • That does not mean that it has a perfect record on civil liberties for the LGBTI community. Kemnitz got the forum thinking about the ‘transgender panic defence’ and ‘gay panic defence’, which are currently being examining by the American Bar Association. The panic defence has recently been used in a case where a man discovered the woman he was being intimate with was transgender, so he ‘panicked’ and bludgeoned her to death with a fire extinguisher. There also needs to be a discussion about how to tackle violence against transgender women.

Respect for the rule of law and international influence

  • Above all, the President-Elect will be urged by the international legal community to respect the rule of law – even in the face of the war on terror.
  • It was agreed that the letter should be forward thinking and focus on matters of international influence – encouraging the new President never to fall back on conduct used in the name of the war on terror.
Category: 
Author details: 
Katherine Duncan

Katherine is a junior barrister at 5 St Andrew’s Hill with a mixed practice of family, criminal and civil work.