The Weekly Round-Up: Georgia Protests, Military Whistleblower Jailed, & Travellers Rights

20 May 2024 by Catherine Churchill

In the News

A bill in Georgia demanding that all foreign entities and NGOs which receive more than a fifth of their funding from international sources must be labelled as ‘bearing the interests of a foreign state’ passed its third and final reading in the Tbilisi Parliament. Such organisations would be subjected to increased scrutiny by the Georgian Justice Ministry and could be subjected to fines if they fail to disclose sensitive information that is requested of them. There are fears that the bill may be used to silence dissidents and will harm Georgia’s chances of joining the EU. The High Representative of the European Commission has confirmed that “the adoption of this law negatively impacts Georgia’s progress on the EU path. The choice on the way forward is in Georgia’s hands”. The US State Department has also said it is “gravely disappointed” by the advance of the bill, which it has called “Kremlin-inspired”. Major protests against the bill have been ongoing for nearly a month, and there is little indication they will die down. The protestors have been met with riot police, leading to violent altercations. The British Embassy in Tbilisi has called for an end to the “unlawful intimidation” of protestors, suggesting tactics such as “threatening phone calls, unlawful detention, beatings and personalised posters portraying civil society members as traitors” have been deployed by police. Georgia President Salome Zourabichvili – an opponent of the Prime Minister, Irakli Kobakhidze who supports the bill – told the BBC she would veto the law. However, the Prime Minister’s party Georgian Dream has sufficient numbers to overrule her, having just backed the bill in its final reading by 84 votes to 30.

The New Yorker is in hot water following the publication of a story on the upcoming retrial of Lucy Letby, who was convicted in August 2023 of the murder of seven babies and attempted murder of a further six. The jury failed to return a verdict on a further six counts of attempted murder, one of which will be the subject of the retrial in June. The Court has ordered reporting restrictions in the lead up to the retrial in order to prevent the trial being prejudiced and to protect the integrity of the jury. The New Yorker article was in contravention of these restrictions – which could amount to contempt of court. The article has now been blocked online and is inaccessible to UK readers, but print editions featuring the story on the cover were circulated last week. While the New Yorker does not have an incorporated entity in the UK against whom contempt orders can be enforced, its parent company Condé Nast does. It remains to be seen whether action will be taken. Conservative MP David Davis queried the blocking of the article in the UK, stating it seems “in defiance of open justice”. Other commentators have suggested the opposite, that the purpose is to ensure Letby receives the fair trial to which she is entitled.

In the Courts

The High Court has declared that parts of the Police, Crime, Sentencing and Courts Act 2022 are incompatible with the human rights of travellers. The Act provided for an increase in the duration for which police can ban travellers from an area from 3 to 12 months, as well as conferring powers upon police to seize homes and fine, arrest, or imprison those living in unauthorised encampments. Gypsies, Roma, and travellers are considered a distinct racial group and are thus protected from discrimination on grounds of their identity. The Court found that the increase in the no-return period constituted a disproportionate interference on the travellers’ Article 14 ECHR rights (freedom from discrimination) when read with Article 8 (the right to respect for private and family life) as a result of the unavailability of transit sites where travellers can stay without fear of a criminal penalty. The Court issued a rare declaration of incompatibility, which prompts Parliament to examine the offending legislation and consider amending it in order to achieve compatibility with the ECHR. Marc Willers KC, lead counsel for the Claimant, said: “This is hugely significant judgment. In granting the declaration of incompatibility, the court recognised that there is a lack of lawful stopping places for Gypsies and Travellers and that unless the government increases provision, the law as currently drafted will amount to unjustified race discrimination.” The charity Friends, Families, & Travellers who acted as intervenors in the case have called the judgment a “serious” blow to the Police Act 2022.

The High Court in Northern Ireland has upheld a previous ruling that parts of the Illegal Migration Act 2023 are incompatible with Article 2 of the Windsor Framework, and further declared that the offending sections of the Illegal Migration Act are incompatible with the ECHR. Article 2 WF provides that there must be no diminution of rights conferred under the Good Friday Agreement as a result of the UK’s withdrawal from the EU. The Windsor Framework is legally ‘supreme’, meaning any legislation with which it conflicts must be disapplied. Every provision challenged before the Court was found to cause a diminution in rights and has therefore been disapplied in Northern Ireland. This includes a number of significant provisions, including on detention and removal. A declaration of incompatibility was also issued in respect of various provisions of the IMA, declaring the provisions to be incompatible with ECHR Articles 3 (prohibition of torture), 4 (prohibition of slavery), & 8 (right to respect for private and family life). Although Humphreys J acknowledged the status of declarations of incompatibility as “a measure of last resort”, the making of one was justified on account of the “significant nature of the violations identified”. DUP leader Gavin Robinson told Good Morning Ulster that he believes “if the government do not assert the sovereignty of Parliament and ensure a UK-wide immigration system”, Northern Ireland risks becoming a “magnet” for migrants. Lord Sharpe, Parliamentary Under-Secretary of State, stated to the House of Lords that “the Government will take all steps to defend their position, including through an appeal”. PM Rishi Sunak has suggested that the ruling will not affect the Government’s efforts to remove migrants to Rwanda.

A whistleblower who leaked documents revealing war crimes committed by the Australian military in Afghanistan has been sentenced to prison. David McBride pled guilty to the charges after the evidence supporting his whistleblowing defence was struck out on grounds of national security. McBride had been a military lawyer who did two tours of Afghanistan, including one with the Australian special forces where he became concerned with the conduct of commanders towards their officers. Having tried internal procedures and reporting to the defence and police minister, McBride eventually leaked documents he had covertly copied to the Australian Broadcasting Corporation believing they would prove that Australian commanders were scapegoating their officers in an attempt to escape allegations of unlawful killings. Instead, the dossier included The Afghan Files, a series of reports which revealed the commission of war crimes Australian forces in Afghanistan. The Brereton Report has since found credible evidence of the war crimes revealed within the documents. Despite this, calls to drop the charges against McBride were refused. Mossop J during sentencing emphasised the severity of the offences charged – stealing Commonwealth property, breaching the Defence Act and disclosing confidential information – and placed weight upon the fact that McBride’s actions constituted a “gross breach of trust” for which he shows “no contrition”. He has been sentenced to 5 years and 8 months. The sentence has led to calls for increased whistleblower protection in Australia. The Asia Director at Human Rights Watch has called it “a stain on Australia’s reputation that some of its soldiers have been accused of war crimes in Afghanistan, and yet the first person convicted in relation to these crimes is a whistleblower not the abusers”.