JURIST Guest Columnist Mark Ellis, Executive Director of the International Bar Association, writes about the populist assault on the rule of law and civil society ...
Since its founding in 1959, the European Court of Human Rights — a court of last resort for disenfranchised people battling the power of often repressive regimes — has safeguarded rights and freedoms in its member states, now some 50 countries strong. Over the years, the court has forced reforms in Russian prisons, come to the aid of families of the disappeared in Chechnya, and pushed Cyprus to take steps to combat sex trafficking. The judges’ track record has made the court the venue of choice for human rights advocates.
Now, the court is facing fire from a little-known organization with ties to some prominent figures on the American far-right—including Jay Sekulow, who served as lead lawyer for U.S. President Donald Trump in his recent impeachment trial.
In February, a group called the European Center for Law and Justice (ECLJ) published a report accusing several prominent non-governmental organizations (NGOs) of having undue influence on the court. While the ECLJ itself is somewhat obscure, its handiwork was widely circulated by conspiracy theorists and conservative outlets such as the right-wing French magazine Valeurs.
The ECLJ tries to paint a picture of a left-leaning, biased court dominated by civil society actors. Among the report’s foremost targets: George Soros – an American investor, philanthropist and human rights champion – and his Open Society Foundations (OSF), an international grant-making network supporting press freedom, democracy, and civil society throughout the world.
Since 1997, OSF has spent over $15 billion on these endeavors. But in these times of populist hysteria, George Soros has become a figure that authoritarian governments love to hate. He’s maligned by the far-right, accused of being the puppet master behind an array of socialist movements. More often than not, attacks on him are shot through with falsehoods and propaganda, and the anti-Semitic undertones are hard to miss.
In the latest attacks, the ECLJ accuses Soros, OSF and other influential organizations such as Amnesty International and Human Rights Watch of being part of a larger conspiracy to manipulate the decisions of the Court and corrupting the selection of its judges.
The ECLJ happens to be the European arm of the American Center for Law and Justice, founded by the American televangelist Pat Robertson, who himself has pushed theories of Jewish world domination. Its director, Gregor Puppinck, is known for his impulsive conspiracy theories, and its chief counsel, Jay Sekulow, was a longtime advocate for the evangelical Christian right before signing on as Trump’s counsel.
The ECLJ report is littered with inconsistencies and peddles outlandish fallacies and fabrications. It eagerly asserts the anti-liberal narrative that Soros, and the human rights community in general, is corrupting the selection process of ECHR judges. In doing so, the report resorts to tabloid-style speculation and ignores facts:
Fact one: Article 21 of the court’s mandate provides that “the judges shall be of high moral character and must either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognized competence.”
Fact two: The judicial election process starts at the national level where three potential candidates are identified. The candidates must generally demonstrate “professional reputation of the field of human rights and fundamental freedoms” and “high moral character, impartiality and integrity.”
Fact three: Once candidates pass through the national nomination stage they face a number of other checks. Thus, before the vote, candidates must undergo a series of interviews before the Subcommittee on the Election of Judges to the European Court of Human Rights of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly.
Fact four: The Parliamentary Assembly can reject a proposed national election list altogether and, in fact, does so quite frequently. For example, through the election process between 2013 and 2018, the Assembly rejected lists from Albania, Azerbaijan, Georgia, Slovakia and Turkey.
Fact Five: Although the judges who are ultimately elected tend to show a degree of activism, they also represent an exceptional diversity in political affiliations, ethnicity and cultural backgrounds. The only main area for improvement is gender diversity.
The ECLJ report also sets out a very dubious assertion of judicial bias because of the alleged “affiliations” of the judges, either as plaintiffs, through amicus curiae, or as third parties. According to their logic, these judges should be blacklisted and prevented from serving on the Court, even if these affiliations were terminated 10, 20 or more years ago.
The notion that a distant past association renders a judge incapable of impartial justice is absurd. There are, of course, circumstances in which judges are required to recuse themselves. However, while international standards remain vague, across Europe grounds for recusal are really quite limited.
The accusations about George Soros are more outlandish still. The ECLJ report suggests the reason Soros’ Central European University is relocating from Budapest to Vienna is heavy taxation by the Hungarian authorities. This claim conveniently overlooks the fact that Hungary has undertaken unparalleled attacks on the rule of law, civil society and political participation, in a concerted effort to drive NGOs out of the country. And Hungary’s leader, Prime Minister Viktor Orbán, has sought to demonize Soros, passing a so-called “Stop Soros” law that criminalizes activities supporting asylum applicants and blaming him for what Orbán calls the “Muslim invasion into Christian Europe.” Such attacks, part of Orbán’s drive to “make Hungary an illiberal state,” have shrunk the space for civil society in Hungary, diminishing the power of NGOs to defend themselves against this trend.
No system is perfect, and this certainly applies to the European Court of Human Rights. However, this biased and distorted report offers no constructive suggestions for reform. Instead, the ECLJ’s partisan, political bias leads it to distort the realities of civil society organizations and, in keeping with the agendas pursued by autocratic governments, attempt to undermine the Court and the international community at large. The group’s report is also sadly another example of the vilification of George Soros, who personifies the liberal values of civil society, freedom and democratic governance – values that are anathema to autocrats.
Mark Ellis is the Executive Director of the International Bar Association (IBA). Before joining the IBA, Ellis spent ten years as the first Executive Director of the Central European and Eurasian Law Initiative, a project of the American Bar Association.
Suggested citation: Mark Ellis, The Populist Assault on the Rule of Law, Civil Society and George Soros, JURIST – Professional Commentary, April 8, 2020, https://www.jurist.org/commentary/2020/04/mark-ellis-populist-assault-on-the-rule-of-law
This article was prepared for publication by Megan McKee, JURIST’s Executive Director. Please direct any questions or comments to her at firstname.lastname@example.org
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