Rising populism and increasing authoritarianism are repressing civil society organizations and activists globally and eroding respect for the rule of law. Antidemocratic practices are spreading in all regions of the world. One of the tools that authoritarian governments now use with greater frequency to restrict and pressure members of civil society and opposition figures is to target the lawyers who represent them in the legal system. The rationale behind this tactic is simple – opponents of autocrats often succeed in pressing their cases in a judicial system, but once a regime manages to sideline principled attorneys – not to mention independent judges themselves — and stacks its official and private-sector legal institutions with government-controlled “pocket” lawyers instead, access to legitimate representation dwindles and rule of law becomes fundamentally compromised.
It’s not hard to find examples of authoritarian leaders using this tactic: the disbarment of dozens of lawyers in Belarus amid massive protests following the contested 2020 presidential election, the total revamp of the defense bar and the prosecution of defense attorneys in Afghanistan after the Taliban took over in August 2021, and the imprisonment of lawyers without appropriate due process for almost three decades in Tajikistan, to name just a few. The trend is clear: lawyers are under attack because of their work, and they need better legal protections to sustain the viability of justice systems. In a 2022 report, former United Nations Special Rapporteur on the independence of judges and lawyers Diego García-Sayán noted “a global increase in practices that undermine, limit, restrict and hinder the practice of law.” He also has reported that in the decade from 2010 to 2020, more than 2,500 lawyers were killed, detained or kidnapped around the world.
On Jan. 24 each year, the international legal community marks the day of the endangered lawyer. The date was chosen to commemorate the 1977 Atocha Massacre, when five labor lawyers were killed in their Madrid, Spain office. The initiative is organized by the Coalition for the Endangered Lawyer, an informal network of national and international organizations and bar associations, including the American Bar Association’s Center for Human Rights. Each year, the initiative focuses on one country where lawyers face the most challenging conditions to perform their professional duties. This year’s focus is on Afghanistan, where lawyers not only face extreme difficulties professionally, but also struggle with dire humanitarian challenges.
While is important to pause on a day like this and recognize the role lawyers play in any civilized society, the growing global trend of suppressing lawyers and the need to improve protections for lawyers are issues that must be addressed every day. Members of the legal profession fulfill a special role in democratic societies by facilitating the administration of justice and guaranteeing access to it and by upholding human rights and the rule of law. Lawyers are especially vulnerable to pressure and harassment when they are working on sensitive cases, such as fighting corruption, or when they represent political opposition figures and human rights defenders who are working on women’s rights or on the protection of marginalized groups, indigenous peoples, the LGBTQI+ community, and the environment. Additionally, lawyers in many places around the world face greater restrictions on their work after harsh government responses to the COVID-19 pandemic. Governments interested in protecting human rights, shoring up the rule of law, and advancing democracy can take a number of steps, outlined below, to support those at the center of these battles.
Current International Legal Standards to Protect Lawyers
Several international and regional legal instruments, both binding and non-binding, are relevant to the protection of lawyers’ rights. Core human rights conventions establish a number of fundamental rights for any individual, including liberty and security, an effective remedy, a fair trial, participation in public life, and freedom of expression, association, and assembly.
On top of those fundamental rights, the U.N. Basic Principles on the Role of Lawyers (the U.N. Basic Principles) provide another layer of protection specifically for lawyers. The Basic Principles encourage national governments to ensure that lawyers can perform their professional duties without intimidation, hindrance, harassment, or improper interference. Similar documents allow protections for prosecutors (the U.N. Guidelines on the Role of Prosecutors) and judges (U.N. Basic Principles on the Independence of the Judiciary).
Various regional non-binding instruments provide protection as well — for example, the Council of Europe’s Recommendation No. R (2000) 21 on the Freedom of Exercise of the Profession of Lawyer (2000) (CoE Recommendation No. R (2000) 21), and the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (AfCmHPR Guidelines on the Right to a Fair Trial) (2003). Many countries have adopted local laws that comply with international standards; however, the implementation of these norms in practice remains far from complete.
Challenges Lawyers Face Because of Their Work
In addition to the expanding repression of independent judiciaries and the global trends of weakening rule-of-law culture, one of the main obstacles for lawyers is the abuse of power by corrupt officials in authoritarian governments. In these conditions, lawyers experience various forms of harassment and threats, ranging from professional disciplinary procedures to disbarments as retaliation for their work, to arbitrary detention, civil and criminal prosecutions, physical violence, and in some cases death.
- Disbarments and Disciplinary Procedures
One of the ways governments negatively influence the independence of the legal profession is by interfering in licensing, qualification, and education requirements needed to practice law. This practice is especially rife in the absence of strong, independent bar associations, when lawyers are vulnerable to the whims of the government. Bar associations usually play a “vital” role in the independence of the profession by “protecting [bar] members from persecution and improper restrictions and infringements.” But in many countries, bar associations are unable to fulfill this role because national Ministries of Justice regulate, monitor, and often manipulate the activities of the associations. This allows the government, through the bar association, to engage in retaliatory disciplinary procedures, random qualification exams, and frivolous disbarment procedures.
For example, in Afghanistan, lawyers routinely face challenges and complications in licensing requirements. In August 2021, when the Taliban took over the government, the entire judicial and legal system collapsed almost overnight. On Nov. 22, 2021, the Taliban issued a decree declaring that the Ministry of Justice would control the Afghanistan Independent Bar Association (AIBA) . The following day, more than 50 armed Taliban gunmen took over the AIBA headquarters and ordered staff to stop working. Taliban officials announced that only Taliban-approved lawyers could work in the Islamic courts, effectively revoking the licenses of about 2,500 lawyers. The Taliban government reportedly targeted lawyers who had previously worked on “sensitive” cases such as protecting women’s rights and other human rights issues.
The AIBA has reported that seven lawyers have been killed since the dissolution of the AIBA, and 146 lawyers have been arrested or investigated. Lawyers, who held law licenses before the Taliban takeover, are now required to obtain new licenses under the procedures instituted by the Taliban Ministry of Justice. In practice, that has meant lawyers are examined on the basis of their past activities and their understanding of sharia, the religious law of Islam. So far, no women lawyers have received a license to practice their profession.
In Belarus, since the contested 2020 presidential elections, the government has been actively suppressing lawyers who work on sensitive cases of opposition members, protestors, journalists, and human rights defenders. More than 70 lawyers who worked on these cases cannot practice law due to disbarments;, disciplinary actions, and numerous “extraordinary certification” procedures, which initiated a re-evaluation of licensed lawyers and appeared to specifically target these lawyers. For example, Maksim Znak, a well-known defense lawyer, was disbarred, criminally charged and sentenced to 10 years behind bars for representing political opposition figures.
The government in Belarus also changed the laws regulating the activities of lawyers, increasing the powers of the executive over the legal profession. While such activities have been widely reported in recent years, the pattern of suppressing the legal profession through disbarments and abuse of the bar association’s functions is not new for Belarus; similar disbarments of lawyers took place in 2011, 2015, and 2017.
In Azerbaijan, lawyers have faced challenges for several years already in terms of the independence of the legal profession from the executive branch. The local bar association, the Collegium, disbarred many human rights lawyers as part of a broader intimidation campaign by the government against the members of civil society, leaving very few licensed lawyers available to take such cases. Reportedly, since 2005, more than 24 attorneys were deprived of the ability to practice law because of punitive measures by the Collegium. The U.N. Special Rapporteur on the situation of human rights defenders noted that disciplinary proceedings have been “one of the main means of retaliation for their human rights or professional activities.” Although some human rights lawyers such as Shahla Humbatova and Irada Javadova were reinstated to practice law, others were not, including Intigam Aliev, who was disbarred, prosecuted, and imprisoned.
In Tanzania, lawyer Fatma Karume was suspended from the Bar of Mainland Tanzania, in a process that failed to comply with domestic law governing the discipline of lawyers, after she brought a constitutional challenge to the appointment of an attorney general by the president of Tanzania. As a vocal critic of the government, Karume has been one of the country’s strong voices calling for good governance, accountability, and transparency.
In Iraq, lawyer Mohammed Jumaa is facing disciplinary action because of his advocacy and support for women rights. The local bar started disciplinary action against him after he represented women in court and expressed criticism on social media about unequal treatment of women in local legal systems.
- Frivolous Civil and Criminal Suits and Other Types of Harassment
Another tool governments use against lawyers is to press frivolous civil and criminal cases against them. This tactic also is employed at times by non-State actors and third parties. Such attacks frequently reflect a country’s weak legal culture and lack of accountability.
In devastating news just this weekend, in the southern African country of Eswatini (formerly Swaziland), Thulani Maseko, a well-known human rights lawyer, was murdered in front of his family in apparent retaliation for his work advocating for human rights and supporting the rule of law. Thulani Maseko dedicated his life to building democracy in Eswatini and was the chairperson of the Multi-Stakeholder Forum, a coalition of civil society organizations and political parties working for democratic reforms in the country. The government must conduct an immediate independent and impartial investigation into his death.
In Russia, the authorities arrested lawyer Mikhail Benyash in 2018 and later charged him with the criminal offense of attacking police officers when he was detained and bound in the back of the police car. Benyash is a prominent human rights lawyer representing protesters and human rights defenders. His court proceedings were replete with absurdities and fair trial violations. For example, according to the monitoring report, the prosecution witnesses testified that they had seen him inflict his injuries upon himself in the police station parking lot; however, it was proven that the witnesses were nowhere near the police station at the time. At another point, the judge coached prosecution witnesses “who could not remember their pretrial statements or were struggling to explain inconsistencies,” while harshly reprimanding defense counsel for standard lines of inquiry.
In Tajikistan, lawyer Buzurgmehr Yorov was charged with criminal offenses including fraud and extremism. Following court procedures rife with fair trial violations, he was sentenced to a combined 28 years behind bars. The Tom Lantos Human Rights Commission, a U.S. congressional body, has denounced the charges against him as politically motivated and based on his representation of opposition party figures. The international legal community has been advocating for the release of Yorov and his associates. Although his prison term was shortened to 18 years, he remains behind bars.
In Guatemala, dozens of lawyers and judges involved in efforts to investigate and prosecute grave abuses of human rights and corruption have recently faced detentions and prosecutions, and some were forced to flee into exile. It is no coincidence that this pattern of attacks is becoming evident three years after the International Commission against Impunity ( CICIG) was dismantled. The CICIG had been created to fight corruption as part of internal and international efforts to achieve high-level accountability, but its targets and their associates ultimately succeeded in undermining the initiative and now appear to be getting their revenge on those involved in the effort. For example, Virginia Laparra, a well-known anti-corruption prosecutor, was convicted and sentenced to a four-year jail term. She has been detained since February 2022 and has often been kept in dangerous conditions. Amnesty International recently adopted her case as a prisoner of conscience.
In Kyrgyzstan, there have been multiple reported cases where family and friends from opposing sides of a legal case have allegedly physically attacked lawyers in order to prevent court hearings from taking place. In one instance, the assault reportedly occurred during a hearing in the Supreme Court of Kyrgyzstan. In another recent case, a lawyer received threats after he called on authorities to investigate alleged corruption. Considering the overall low level of respect for or cultural understanding of the role of the lawyer in Kyrgyzstan, as well as the government’s refusal to condemn, investigate, and prosecute such attacks, these types of practices, based on my experience working in this region, are likely to continue.
What the International Community Can Do
The international legal community — represented in professional organizations, civil society organizations, and bar associations — has long advocated for lawyers’ rights. In 2016, then-U.N. Special Rapporteur on the independence of judges and lawyers Mónica Pinto’s presented a report to the U.N. General Assembly, urging protections for lawyers and providing with specific recommendations. In June 2017, the U.N. Human Rights Council adopted a resolution containing provisions condemning violations, intimidations and reprisals against lawyers and calling upon states to provide for the implementation of guarantees and immunities of lawyers. In 2018, U.N. Special Rapporteur García-Sayán presented a report on bar associations and other types of lawyers’ organizations and highlighted the important role these institutions play in protecting their members.
Work is ongoing to create a European convention on the role of lawyers. In 2018, the Parliamentary Assembly of the Council of Europe adopted a report with recommendations to create an instrument that would ensure respect, protection, and promotion of the “freedom of exercise of the profession of lawyer.” Many legal organizations are supporting this initiative.
It is critical to keep the fate of the lawyers who are at risk because of their work in the media spotlight. An informal coalition of several legal organizations, including the American Bar Association’s Center for Human Rights, is working to create a database to track and analyze this type of information for potential use in further accountability and abuse-prevention efforts.
Still, these initiatives are not enough. Those national governments supportive of increasing respect for rule of law should ensure implementation of existing norms, condemn attacks on lawyers, and fully investigate and prosecute every incident. National governments also should raise public awareness of a lawyer’s role in the administration of justice by conducting advocacy campaigns and training lower-level investigators, prosecutors, and court administrators.
And where authoritarian governments influence the independence of the legal profession, the international community must hold them accountable by finding appropriate leverage to protect lawyers, whether by connecting financial or economic assistance to better conditions for legal representation or by taking harsher measures, such as targeted personal sanctions. One of the most powerful tools today, of course, is the Global Magnitsky Act, first adopted by the United States in 2016 and now used by a number of other countries to penalize individuals and entities around the world for corruption and gross human rights abuses. The act is named after Russian lawyer Sergei Magnitsky, who reported a major case of tax fraud he’d uncovered involving government officials there, but was arrested on false charges and died in a Russian prison in 2009.
In the case of Afghanistan, newly appointed U.N. Special Rapporteur on the independence of judges and lawyers, Margaret Satterthwaite, issued a statement with U.N. Special Rapporteur on the situation of human rights in Afghanistan Richard Bennett to mark the Day of the Endangered Lawyer. They wrote, “The States and other actors that were long involved in efforts to improve access to justice and strengthen the rule of law [in Afghanistan] now have a special responsibility to support those individuals who face hardship, exclusion, and risks to their safety as a result of their work within and for the legal system.” They urge the international community to provide “more resources, including increased and flexible financial support;” offer “protection and safe passage to lawyers, judges, prosecutors, and other actors involved with the legal system, especially women, who are at risk of reprisal and attacks by the Taliban and others;” and support those who’ve already fled the country.
On this Day of the Endangered Lawyer, the international legal and human rights community must redouble its efforts to monitor cases against lawyers worldwide, raise awareness about this problem at the international level, and conduct more vigorous advocacy in domestic, regional, and international institutions to hold governments accountable for violations. The endangered lawyers database is among many important steps deserving support, as is the creation of a European convention that could help cultivate a rule-of-law culture, prevent abuses, and hold perpetrators accountable when they occur. Lawyers are critical to any legal system, but they need protection to support the rule of law.
(The views expressed represent the opinions of the author and not those of any institutions or organizations with which she may be affiliated. The views expressed have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities.)