The world is becoming increasingly authoritarian, and authoritarian leaders are increasingly using courts to consolidate their power. Although the judiciary is often the best protection against abuses of power, compliant or corrupt judges can also be a tool to stifle dissent and oppress minorities. Yet little is known about the human rights abuses unravelling in courts. While most trials are open, many proceedings are long, complex and involve a foreign language. Which means the abuses take place in the dark.
Today, journalists are one of the groups at greatest risk of spurious convictions. A growing number of governments treat journalists who criticize them as ideological enemies, and reporters are imprisoned for just doing their job. The last few years have seen the highest numbers of journalists in prison than at any time in the last three decades, particularly in countries such as Turkey, China and Egypt, while the murder of journalists often goes unpunished.
Around the world, the legal system is also being used to penalize people not for what they do but for who they are. A large number of countries allow women and girls to be prosecuted for abortion, adultery, ‘acts incompatible with chastity’ or leaving home without permission. In some places, women who report rape are then prosecuted for having extra-marital relations. And in El Salvador women have been sentenced to 30-years in prison for the ‘crime’ of abortion, even when they just had a miscarriage.
In some countries you can be imprisoned, or killed, because of who you love. Over 70 countries still criminalise same-sex relations. And in 14 countries you can get executed for it. This includes Brunei, which introduced a law earlier this month that allows a gay person who has same-sex relations to be stoned to death. In Iran, a 31-year old man was recently convicted of sodomy and publicly hanged. And mass arrests of gay men in Egypt have led to 6-year sentences for men who were simply waving a rainbow flag at a concert.
In other countries, you can be persecuted through the courts because of what you believe. Insulting religion can lead to imprisonment in more than 40 countries, and blasphemy can get you executed in at least 6 of them. In Pakistan, a Christian woman named Asia Bibi was sentenced to death by hanging and spent 8 years on death row after an unfair trial convicted her of insulting the prophet during a discussion with neighbours she was picking berries with. And although her conviction has now been reversed she still cannot leave the country.
In every region there is also a growing risk for human rights defenders – the lawyers, judges, politicians and activists who are trying to protect those at risk and so often end up paying the same price as those they are trying to defend. This includes women who were arrested after they sought to report sexual abuse in the ‘metoo’ movement in Indonesia and women who advocated for the right to drive in Saudi Arabia.
Without the fair administration of justice, it is not possible to hold the powerful to account. There can be no democracy; no freedom of speech; no safety for minorities. And yet, we measure corruption by governments, but not by courts. We monitor the fairness of elections, but not trials. And leaders accused of holding political prisoners can deflect criticism all too easily with bare denials or stock-phrases about the separation of powers. We need extensive monitoring, hard data, and committed advocacy for this to change.
That is why the Clooney Foundation for Justice is launching TrialWatch, an initiative that aims to train and deploy monitors to trials that pose a high risk of injustice. We focus on trials against those who are most vulnerable: journalists, women, the LGBT community, religious minorities and human rights defenders; and we look to any country in the world where they are at risk.
Our monitors do not need to be lawyers, as long as they have completed the training program that we have developed with the United Nations, based on international human rights standards. And in court they will use a custom app developed with Microsoft to enable them to capture all relevant data – including photographs, audio clips, notes and official documents – in one place. Once we have gathered this data, a legal expert will grade the trial, and whenever possible the report will be shared with legislators, diplomats, journalists and NGOs.
But our project isn’t just about cataloguing abuses: it is also about challenging them. Where there has been an injustice, we can conduct or fund legal advocacy in regional or international forums. And once we have enough data, we will create a global justice index that ranks states according to the fairness of their judicial process.
Ranking states’ performance on an index can help incentivise those with a low ranking to change their behaviour, and it can put pressure on governments to stop supporting those who are falling short. Grading trials and indexing the results can also help to expose the corrupt individuals who should be subjected to human-rights-sanctions under ‘Magnitsky laws’ or similar regimes. The EU has, in the past, imposed sanctions on judges and prosecutors who have presided over unfair trials in places like Belarus and Iran, and the US recently sanctioned senior Turkish officials for the unfair detention of an American. But this should be happening in many more places.
A global justice index can also force businesses to consider whether they should risk being complicit in the abuses that we will document. A technology company, for instance, may face pressure not to sell surveillance equipment to a government that falls below a certain number in the rankings, given the heightened risk that such technology could be used to target minorities and dissidents. And reduced foreign investment can eventually convince autocrats to change course.
We are just getting started, but the early results are encouraging. In our pilot phase we have observed trials all over the world, including in places like Algeria that had not seen an international trial monitor for many years. And in the last three months alone, we’ve received over 1000 submissions from around the world about upcoming trials of concern.
As a US Supreme Court justice once said, sunlight is the best disinfectant. We believe that by shining a light on what is happening in courtrooms, we can start to change it. One case at a time.