Our latest report – on the protection of lawyers in conflict and crisis – has just been published and is available to download here.
This paper is guided by three fundamental principles:
- Lawyers are particularly vulnerable to intimidation and threats to professional and personal wellbeing in jurisdictions experiencing crisis or upheaval.
- Where widespread violence and political upheaval occurs, it is more important than ever that lawyers take on the challenging work of upholding basic human rights and fundamental freedoms.
- In order to do such work, lawyers much enjoy the full protection afforded to them under the terms of international human rights law and standards on the independence of the legal profession.
To test the extent to which lawyers are adequately protected in times of crisis and conflict we firstly examine the relevant international legal framework. This includes reference to human rights law as well as international law and standards specific to the protection of members of the legal profession. The UN Basic Principles and Special Procedures, as well as other international standards and norms, clearly establish obligations to ensure that lawyers are able to: perform their functions without intimidation, harassment or interference; consult with their clients; and fulfil their professional duties without fear of sanction or intimidation. It is equally clear that there is an obligation on states to safeguard the independence of the legal profession as a whole.
In the second part of this paper we focus on the specific responsibilities of states. This is framed in terms of both the negative obligation to refrain from interfering with the independence of the legal profession, as well as the positive obligation to establish a domestic legislative framework that creates an environment in which the legal profession can flourish. The latter includes a responsibility to investigate and prosecute threats made against lawyers, regardless of the source. The right to a fair investigation is of course well-established in international human rights law but states also have an obligation to adhere to the supplementary and specific provisions relating to the legal profession and individual lawyers. This includes adopting all reasonable measures to guarantee the right to life, personal liberty and personal integrity of human rights defenders. Fulfilling these various obligations depends upon the state being aware of the nature and extent of intimidation faced by lawyers. It is thus suggested that particular attention must be paid to events, modes of practice and institutions that are particularly threatening for lawyers. It is also clear that, alongside the state, professional associations have a central role to play in safeguarding the legal profession and individual lawyers at times of crisis.
In the final section we review some of the most relevant international jurisprudence to clarify the type of actions and activities that constitute either undue interference by the state or a failure adequately to protect lawyers and the legal profession. Case law consistently suggests that, where a state’s actions directly intimidates or harasses lawyers, or where their rights are infringed as a result of their professional activities, this constitutes interference in the legal profession. Sanctions have included demands for compensation and steps to guarantee non-recurrence. In addition to freedom of expression, the rights of lawyers to peaceful assembly and to freedom of association (including the formation of legal collectives) have each been addressed in international jurisprudence. Where states interfere directly with these rights, or where states attempt to direct or control the actions of professional legal associations, they have been found guilty of improper interference.