Social Justice – BPP Human Rights Law Blog

The Bill that was not killed – The Police, Crime, Sentencing and Courts Act 2022: Article 11 ECHR Compliant or not?

Published on 22 Jul 202314 Aug 2023 by BPP Human Rights UnitLeave a comment

Puja Patel highlights how the Police, Crime, Sentencing and Courts Act 2022 threatens the right to protest in the UK, and critically examines the Act’s incompatibility with the European Convention on Human Rights.

Right back from when the Police, Crime, Sentencing and Courts Act 2022 (the ‘Act’) was merely a developing embryo in the Parliamentary womb, the shockwaves it sent through the country were tangible. ‘Kill the Bill’ protests took place around the country but despite this, on 28^th April 2022, the Bill crystallised into a law which now wields the power to outlaw the very protests which were staged to prevent its enactment.

Protest is a powerful mechanism for accountability and has served as an essential instrument for change throughout human history; as articulated by Lord Denning, the right to protest is in the ‘public interest’ and is ‘often the only means by which grievances can be brought to the knowledge of those in authority…with such impact as to gain a remedy’^[i]. The fundamental nature of the right to protest is reflected by the inclusion of the right to peaceful protest within Article 11 of the European Convention on Human Rights (ECHR).

In clear breach of Article 11 ECHR, the Act would have outlawed the protests of the suffragettes in 1903-1918to secure the vote for women, Gandhi’s peaceful protests to liberate India from the British Empire, and the civil rights desegregation movement in the US. The consequences of this legislation are therefore dire; depriving citizens of their right to protest against the State and constituting a clear human rights violation and a bold exercise of authoritarian power.

Is the Act compliant with Article 11 ECHR?

The Act is not compatible with Article 11 ECHR. Whilst the Government claim that the Act pursues the legitimate aim of protecting the rights and freedoms of others^[ii], the Act does not comply with the legality and proportionality requirements set out in Article 11(2) ECHR.

The Act makes five key changes to existing legislation under the Public Order Act 1986 (‘POA’) which directly impact the ability of the police to interfere with protests/processions.

Change 1 – outlawing protests/processions with ‘impact’

Pre-Act, a senior police officer had the power to impose such conditions upon a procession/assembly as appear to them necessary to prevent disorder, damage, disruption or intimidation^[iii]. The Act extends this power by empowering the senior police officer to impose such conditions upon a procession/assembly as appear necessary to prevent ‘impact’.

Protest is inherently impactful. Notably, the legislation did not restrict the scope of these powers to ‘damaging’ or ‘dangerous’ impact, meaning that all and any protest is caught within the scope of this provision. Peaceful protest, non-disruptive protest, even silent protest will all create impact, and therefore police officers could lawfully interfere with any protest. This breaches the legality requirement of Article 11(2) as the unqualified scope of ‘impact’ renders this provision insufficiently clear and lacking in legal safeguards against arbitrary interferences by public authorities^[iv].

Likewise, the proportionality requirement of Article 11(2) was also breached because there were less restrictive means to achieve the government’s aim which would have struck a fairer balance between individuals and community interests^[v] such as restricting the scope of this provision to ‘damaging’ or ‘dangerous’ impact.

Change 2 – Suppressing protests/processions which may result in ‘noise’^[vi] which can cause ‘serious disruption’

The Act extends the power of a senior police officer to impose conditions to circumstances where the procession/assembly merely result in ‘noise which can seriously disrupt activities of nearby organisations’^[vii] which is defined as ‘where persons connected with the organisation not being reasonably able, for a prolonged period of time, to carry on in that vicinity the activities or any one of them’^[viii].

The legality requirement may arguably be met here; the Act provides a comprehensive, albeit non-exhaustive, definition of ‘serious disruption’^[ix]. However, there is a clear breach of the proportionality requirement. It is noteworthy that the protest need not cause actual serious disruption; the police are entitled to assess whether the protest ‘may’ cause such noise, and may therefore pre-emptively interfere. It is difficult to envision a protest which the police cannot argue ‘may’ result in noise which could theoretically meet the Act’s definition of serious disruption to the activities of nearby organisations.

Illustrative example: A small group of protestors chanting in a park, could meet this definition. The noise need only be capable of preventing someone in a nearby organisation from completing any one activity e.g. someone may not be able to hold a meeting due to the noise. Whilst this may be annoying and inconvenient, protest is a fundamental right, whereas a meeting can be rescheduled or held elsewhere. Moreover, it is not necessary that the protest create any such noise or prevent any such meeting taking place; in order to interfere, the police need only deem the protest capable creating noise which is capable of preventing such a meeting.

This clearly demonstrates why the scope of ‘serious disruption’ which entitles the police to interfere is simply too broad.

Less restrictive means were available, such as defining disruption to mean significant and prolonged harm to fundamental rights and freedoms (such as those protected by the ECHR) like access to healthcare or religion.

Change 3 – Suppressing protests/processions which may result in noise which has a ‘relevant and significant impact’^[x]

The Act also enables the same police power to be deployed if the procession/assembly may result in noisewhich has a ‘relevant’ and significant impact on the persons in the vicinity of the processions^[xi].

The legality requirement may be met, since a definition of relevant impact was provided: where it may result in intimidation/harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity or it may cause such persons to suffer alarm or distress^[xii].

The proportionality requirement is clearly breached; the definition of relevant impact brings all protests, including peaceful, non-disruptive protest, within its scope.

Illustrative example: Two people standing outside the office of an oil company chanting a slogan (‘Oil kills our planet’) can fall within the scope of ‘relevant impact’ and the police can therefore lawfully interfere. The two people chanting the slogan may cause the firm’s employees ‘reasonable firmness’ to feel ‘alarm or distress’. However, empowering the police to interfere with this protest is blatantly disproportionate; it is peaceful, it does not even obstruct the doorway and the protestors are on public pavements and not trespassing.

Less restrictive means clearly exist to regulate protest and to achieve the government’s aim, such as qualifying the scope of this provision to ‘significantly harmful or dangerous impact’.

Change 4 – lowering the threshold for sanctions; dispensing with the requirement for ‘knowledge’ in order to incur liability ^[xiii]

The Act lowers the previous threshold for protestors to commit a public order offence by stating that a person is guilty at the time the person fails to comply with a condition the person knew or ought to have known was imposed^[xiv]. This dispenses with the requirement for a person to knowingly fail to comply (subjective mens rea). Instead, the Act renders mere failure to comply with a condition (objective standard) an offence. Whilst this meets the legality criteria, it is disproportionate.

As articulated by Dr Richard Martin, Assistant Professor of Law at LSE, the Act has allowed ‘more intrusive restrictions to be placed on the right to peaceful protest’ through creating ‘lower thresholds and lesser safeguards’^[xv] against interference. Change 4 is the prime example of this.

Illustrative example: In a larger-scale protest, if a few individuals breach a condition of the protest, everyone involved is now committing an offence by participating in a protest which breaches the imposed conditions. Without the requirement for subjective intention to fail to comply, all protestors are now liable. Those merely peacefully exercising their Article 11 rights will now also be punished. This is disproportionate, particularly when one considers the increasing ease with which police can impose conditions upon protests/processions (see Changes 1-3). Whilst it is a defence for protestors to prove that failure to comply arose from circumstances beyond their control, this would only retrospectively exonerate them from liability and would not prevent the interference with their protest. Moreover, the existence of sanctions inherently constitutes an interference and restriction on the right to protest; this is explored below.

The ‘chilling effect’

Punitive measures mean restrictions on the right to protest^[xvi] since sanctions which deter and discourage people (the ‘chilling effect’) from partaking in demonstrations constitute an interference.^[xvii] The option for retrospective judicial redress is largely nullified by the legal cost barriers to judicial review, with dramatic cuts to legal aid funding resulting in a falling number of judicial review claims (Lomri, 2019). In any case, as commentator Mead correctly observes, ‘we should not have to rely on going to court to have our rights upheld’^[xviii]. Therefore, sanctions should be imposed only when strictly necessary. The lack of requirement for subjective knowledge under the Act therefore constitutes a disproportionate interference.

Change 5 – interfering with one-person protests^[xix]

For the same reasons as Changes 1 and 2, the Act’s conferral of power upon police officers to interfere with one-person protests breaches Article 11 ECHR.

Additionally, the argument that it is proportionate to deploy the same legal powers upon one-person protests as protests conducted by a thousand people is, at best, difficult to sustain.

Conclusion:

The Act is incompatible with the ECHR, breaching the legality and proportionality requirements set out in Article 11(2) ECHR. Urgent reform is needed; however, it remains to be seen how such change can be effected now that the democratic mouthpiece of protest has been effectively removed from the public voice….

^[i] Hubbard v Pitt [1976] QB 142

^[ii] Government Policy Paper, Public Order Bill: Factsheet [online] Available at: https://www.gov.uk/government/publications/public-order-bill-overarching-documents/public-order-bill-factsheet#:~:text=Sections%2012%20and%2014%20of,an%20organisation%20by%20noise%3B%20serious

^[iii] Public Order Act 1986, s12 and s14

^[iv] Lashmankin and Others v. Russia, nos. 57818/09 ECHR 2017 [410]

^[v] DPP v Ziegler [2021] UKSC 23 [16]

^[vi] Police, Crime, Sentencing and Courts Act 2022, s73 and s74

^[vii] Public Order Act 1986, s12(1)(aa) and s14(1)(aa)

^[viii] Public Order Act 1986, s12(2C) and s14(2C)

^[ix] Defined in s12(2A) Public Order Act 1986 as where the procession/assembly may result in prolonged disruption of access to any essential goods or any essential service (in particular (non-exhaustive list): money, water, energy, fuel, system of communication, place of worship, transport facility, educational institution, service relating to health, or where the procession/assembly may result in significant delay to a time-sensitive product being delivered to consumers (s12(2A) and s14(2A) Public Order Act 1986); ‘time-sensitive’ is defined as a product whose value/use to consumers may be significantly reduced by a delay in supplying that product (s12(2B) s14(2B) Public Order Act 1986).

^[x] Police, Crime, Sentencing and Courts Act 2022, s73 and s74

^[xi] Public Order Act 1986, s12(1)(ab) and s14(1)(ab)

^[xii] Public Order Act 1986, s12(2D) and s14(2D)

^[xiii] Police, Crime, Sentencing and Courts Act 2022, s75

^[xiv] Public Order Act 1986, s12(5A) and s14(5A)

^[xv] Martin, R. (2021). ‘The Protest Provisions of the Police, Crime, Sentencing and Court Bill: A Modest Reset of the Scales?’ Criminal Law Review 1008

^[xvi] Ezelin v. France, no.11800/85, ECHR 1991 [39]

^[xvii] Bączkowski and Others v. Poland, no. 1543/06, ECHR 2007 [66]-[68]

^[xviii] Joint Committee of Human Rights. (2021b). The Government response to covid-19: freedom of assembly and the right to protest, Thirteenth Report of Session 2019-21 Report, together with formal minutes relating to the report by authority of the House of Commons and the House of Lords. [online] Available at: https://committees.parliament.uk/publications/5153/documents/50935/default/

^[xix] Public Order Act 1986, s14ZA

Photo credit: Michael Mandiberg from Creative Commons

DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.

Religion, Liberty and Pakistan-The Thorn to Their Freedom

Published on 18 Jul 2022 by BPP Human Rights UnitLeave a comment

Irteza Ahmad reflects upon the current political climate of Pakistan, and how the restrictions imposed upon Ahmadi Muslims to practice their faith with liberty, are indicative of a wider issue in the country.

In April of this year Prime Minister of Pakistan Imran Khan was ousted after the Supreme Court ruled his proposal to dissolve parliament and call a snap election was unconstitutional.^[1] A short while after in light of this the former PM tweeted that the ‘freedom struggle begins again today against a foreign conspiracy of regime change’.^[2] Khan was elected on a mandate of anti-corruption and a promise to bring change and create a ‘new Pakistan’ 4 years prior to this. It was felt that Khan had a vision to establish freedom in his beloved country.

Contemporary Politics in Pakistan

Khan’s unsuccessful move to dissolve and call an election preceded a vote of no confidence against him which he was favoured to lose.^[3] The deputy speaker of the house rejected the proposal for a no-confidence vote.^[4] Opposition MPs thus pressured the Supreme Court, who ultimately ruled Khan’s actions unconstitutional leading to a vote resulting in his ousting. Khan maintains that US involvement resulted in his removal.^[5] Khan’s goals have seen Pakistan embrace relations with eastern partners in Russia and China, while moving away from the US. The opposition, now in power, condemns a failure to deliver on his mandate and poor control of the economy with the currency being a staple concern.

Pakistan is a very interesting country in terms of its current politics. Since creation in 1947 Pakistan has been under military rule for half of its lifetime.^[6] The rest of its history has seen 29 Prime Ministers of which not a single one has ever completed a full 5 year term.^[7] It is a country well accustomed to turmoil.

The Ahmadi Issue

The initial events that followed Khan’s election are a perfect example of why attaining freedom in Pakistan is a task troubled with complexity. Post appointment as PM and tasked with selecting his cabinet, Khan immediately succumbed to weakness facing backlash to a jab he poked at the Achilles of the freedom issue in Pakistan. He appointed Mian Atif a Professor of Economics at Standard University as his Minster of Finance. Following widespread backlash Khan was forced to renounce Atif’s nomination. The reason being that Atif, belonging to a minority sect of Islam, is an Ahmadi Muslim.^[8]

Under Article 260(3) of the Constitution of Pakistan Ahmadis are considered ‘non-Muslim’.^[9] Ahmadis are persecuted across the Muslim world but in my view no place more so than Pakistan. Under Ordinance XX since 1984 Ahmadis have been disallowed to publicly practice the Islamic faith and the Ordinance prohibits them from identifying as Muslim.^[10] Consequently, an uttering of the word ‘salaam’, meaning peace, is a crime when spoken from the lips of an Ahmadi punishable by imprisonment. These laws have shaped societal sensibilities and mentalities in Pakistan to the point where a man deemed by some to be a future Nobel laureate in his field is judged not according to his merits but his faith.

The restriction on freedom to practice one’s faith with liberty is not pertinent across the entire subcontinent. In the case of Shihabuddin Imbichi Koya Thangal vs K.P. Ahammed Koya the Indian Courts ruled contrary to their subcontinent counterpart declaring Ahmadis as Muslims.^[11] The Court cited that Ahmadis believe in what the Court considered the two fundamental principles of Islam, namely that there is no God but Allah and that Muhammad is his messenger.^[12] Man has long cultivated his relationship with the divine into his legal affairs, yet this instance marks a precedence where a Court has had to regulate ‘religion’ and the ’religious’.

Islamization-The Shift to Theocracy

The Ahmadi issue is one which is and has been intrinsically politicised in the country. The justification largely used for the discrimination is a difference in ideology, which is not the concern of this article. What is important to understand is that Islamisaztion under President Zia-ul-Huq in the 1980s brought about stricter ‘sharia’ law breeding a generation of conservatist thought.^[13] The biproduct of these measures led to an increased stringent culture against anything that was not in Zia’s view ‘Islamic’. Ziad led Pakistan on a trajectory of a pointed theocracy. Ahmadis with their ‘conflicting beliefs’ are a ‘threat’ hence the constraints on their freedom to practice their religion. It is also important to highlight that the country was not always as such. Zia along with Zulfikar Ali Bhutto, PM from 1973 to 1977, radically shifted the nation. Zafarullah Khan, a now forgotten treasure, a successful jurist serving as head of the International Court of Justice served as the country’s first Foreign Minister.^[14] That was before Zia and Zulfikar. Mian Atif’s appointment by Khan a few years ago for that reason demonstrates the drastic shift from Ahmadi’s serving in government to a stern theocratic condition.

Intolerance

The struggle of the balance in liberty and Islam is not novel issue. Rushdie’s publication of The Satanic Verses is one such infamous example. More recently, the murder of Mashal Khan at a University Campus in Pakistan, who was promoting Marxist propaganda and freedom of speech, is an example of discrimination not just against one’s religion but against many human rights- He was mobbed, kicked, beaten and murdered.^[15] This happened not all that long ago in 2017. In a country where education is a privilege, not a right, the unsettling actions of the intellectual elite, give an indication about the rest of the society.

In the context of this article the key issue here is the intolerance to accept difference. Given that Pakistan was created as a nation for the subcontinent’s Muslims this is the principle that has been advocated by Islamists such as Zia Ul Huq. Days before its creation though the founder Jinnah said, ‘you may belong to any religion or caste or creed – that has nothing to do with the business of the State’.^[16] Pakistan was intended to provide not solely religious but equal human rights for all not just for Muslims. Politicisation, polarisation and Islamisization has prevented that. The theocratic position that has been forged has produced an intolerance to many rights such as the freedom of speech and religion. Anytime there is an event in the country concerning the restriction of liberty, such as those mentioned in this article, this upholds and hardens the theocratic position. Hence the suppression of a right pertaining any form of liberty is key to the issue of Ahmadis. The freedom to practice religion in Pakistan is plagued and affected by the sensibilities of society relating to theocracy and liberty.

Conclusion

Ultimately, the above is what Khan was trying to rid of from his country. Credit must be given to him for embarking on his pursuit of freedom, but he ultimately attacked an issue that is extremely sensitive at an improper time.

Islamisization and politicisation invoked changes that made Pakistan into the theocratic state that it is today. The effect of these changes was not felt instantly and they required a continual development. Equally the Ahmadi issue will not be solved overnight, it requires a similar continual development of marginal gains to produce any effective progress. Upholding liberty in its many forms is part of that process.

This discussion has aimed to highlight the prevalence of theocracy that has come at the expense of, not only liberty in faith, but human rights generally. The issues against freedom of religion and the discrimination in opposition follow from a threat to the dogmatic approach. Though the purpose of this Article is to highlight the issues of freedom of religion and religious discrimination in Pakistan the use of Ahmadis in the context of religion is just one example. Irrespective of whether it is freedom of religion or speech and irrespective of the vessel against negative liberty, the fundamental issue is the deprivation of human rights with a view to ostracize thought to breed intolerance. That is what ultimately cost Mashal Khan and many others like him their lives, they did not conform to the dogma.

Malcolm X once said, ‘I believe in human rights for everyone, and none of us are qualified to judge each other and none of us should therefore have that authority’.^[17] In light of Jinnah’s ideology and the words of Malcolm an essential principle of Islam that is often forgotten is Chapter 2 verse 256 of the Quran. It is stated here that ‘there is no compulsion in religion’.^[18] It is my view that Pakistan is holding itself back from realising new heights. If Pakistan needs to resolve its human rights crisis which consists in part of the treatment of Ahmadis, and the inability to tolerate-that is the thorn to their freedom.

^[1] SUO MOTO CASE NO.1 OF [2022] SCP

^[2] Khan Imran, ‘@ImranKhanPTI’ (Twitter, 10 April 2022)

^[3] Baynes Megan , ‘Pakistan’s PM Imran Khan tipped to lose no-confidence vote’ (Sky News , 9th April 2022)

^[4] Al Jazeera And News Agencies, ‘Pakistan Parliament dismisses no-confidence motion against Khan’ (Al Jazeera, 3rd April 2022)

^[5] IBID

^[6] Al Jazeera And News Agencies, ‘Pakistan: a political timeline’ (A lJazeera, 30th April 2013)

^[7] Al Jazeera And News Agencies, ‘No Pakistani prime minister has completed a full term in office’ (A lJazeera, 9th April 2022)

^[8] Sayeed Saad, ‘Pakistan removes economist from key role following Islamist backlash’ (Reuters, 7th September 2018)

^[9] National Assembly of Pakistan, The Constitution of the Islamic Republic of Pakistan [1974] art.260(3)(b).

^[10] Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance [1984]

^[11] Mahmood Tahir, ‘Ahmadis and an unsung hero’ (The Indian Express, 17th August 2017)

^[12] Ibid

^[13] Ali Shan Shah and others, ‘Islamization in Pakistan: A Critical Analysis of Zia’s Regime’ [2016] 1(1) Global Regional Review

^[14] Mahmood Tahir, ‘Ahmadis and an unsung hero’ (The Indian Express, 17th August 2017)

^[15] BBC, ‘Mashal Khan case: Death sentence for Pakistan ‘blasphemy’ murder’ (BBC, 7th February 2018)

^[16] Secunder Kermani, ‘How Jinnah’s ideology shapes Pakistan’s identity’ (BBC, 18^th August 2017)

^[17] Zillah Eisenstein, Against Empire: Feminisms, Racism and the West (1st edn, Bloomsbury Publishing 2008) 132

^[18] The Holy Quran ch2:256

‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’

Photo Credit:”Imran Khan during his speech” by UJMi is licensed under CC BY-NC 2.0.

Legally Challenging the Government on a Piece-meal Basis is not Enough; Long Term Protection of Human Rights Requires Democratic Change

Published on 17 Jul 2022 by BPP Human Rights UnitLeave a comment

Anna Bielenberg discusses our current voting system’s role in the ‘Rights Removal Bill’ coming to fruition.

On the 14th of June, the European Court of Human Rights (ECtHR) granted an urgent interim measure to prevent the immediate removal of eight asylum-seekers from the UK to Rwanda.^[1] The ruling means that these individuals have the right to remain whilst the legality of the Secretary of State’s Rwanda Removal policy undergoes Judicial Review. Preventing the individuals from leaving that same night was a huge triumph, however any hope that this decision might offer a lasting protection for the rights of displaced people was soon crushed: less than a week later — as though in direct response to the ECtHR decision — the government announced its’ intention to replace the current Human Rights Act 1998 (HRA) with a Bill of Rights.

To understand why the new Bill of Rights Bill was quickly coined the ‘Rights Removal Bill’ it is necessary to briefly outline what protections the HRA previously afforded individuals in the UK. The HRA incorporates the European Convention of Human Rights (ECHR) into domestic law, and thereby allows the ECtHR to safeguard these same rights. As it currently stands, the HRA allows any individual to seek justice in a British court if they feel that the courts, police, local authorities, hospitals, or publicly funded schools, have denied them any right outlined in the articles.^[2] It also obliges the courts to interpret all new legislation passed by Parliament in a way that is compatible with the ECHR. The caveat however, is that many of these rights — the right to liberty and security; the right to a fair trial; the right to respect for privacy and family life; the right to freedom of thought, conscience and religion; freedom of expression; and freedom of assembly and association – are conditional and may be withdrawn if the government considers it is necessary for national security, public safety, the economic wellbeing of the country, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others. Therefore, although the HRA has always been discretionary in this sense, the ECtHR has until now offered a last-resort protection for individuals who feel their rights have been denied by a domestic court. The effect of the new Bill of Rights will be to limit the influence of the ECtHR in the UK, and the ability of the UK Courts to uphold Convention Rights.^[3]

The Bill of Rights Bill should also be considered within the context of three recent Parliamentary Acts. The Police, Crime Sentencing and Courts Act lowers the threshold for the Police’s power to restrict any sort of protest that might ‘disturb, shock or offend others’, and thereby criminalises the very purpose of legitimate protest. ^[4]The Nationality and Borders Act criminalises most asylum-seekers based on their mode of arrival into the UK, or the timing of their asylum claim. This gives the British government the legal authority to deny them access to public funds, their right to stay in the UK, or have their family members join them, which UNCHR states is directly in contravention with obligations that the UK is under as part of the Refugee Convention ^[5]. Thirdly, the Election Bill undermines several democratic principles, through allowing for parliamentary oversight of the Electoral Commission.^[6]As the purpose of this commission is to protect free and fair elections through being entirely independent, it is believed that the overall effect of the Act will be to cement Conservative Power further.^[7] What we see today therefore is a government that takes away freedoms, whilst at the same time chipping away at the ways in which it can be held legally or politically accountable for its own failures. Gina Miller – well known for R(Miller) v Secretary of State for Leaving the European Union – believes that the current government strategy is to diminish the rights in the places that have previously offered a space to hold the government to account in different ways: the courts, the media, the streets, and the ballot box^[8].

Meanwhile, the current government has also demonstrated a dangerous lack of respect for the Rule of Law, having broken the law itself no less than five times. Lord Paddick insists that this sense that the law operates with favour to the powerful threatens to undermine public trust in the police and the wider criminal justice system^[9]. Whilst this less than adequate leadership could superficially be attributed to Pandemic – and subsequent alternative emergencies (the war in Ukraine, the cost-of-living crisis) — there could also be a more deep-rooted, long-term cause for the current political landscape. In an interview with LBC, Zach Polanski – London Assembly Member and Green Party MP – argues that the irreverence, corruption, and lobbying we see by politicians today is the result of a broken voting system. More specifically, he argues that the First Past the Post System (FPTP) is the reason that those who sit in the House of Commons are so out of touch with the general population. Indeed, a growing movement in the UK demands a reformation of the voting system towards a system of Proportional Representation. One leading voice is the cross-party pressure group, Make Moves Matter.

Historically, advocates of the FPTP system have argued that it excludes radical politics, provides a strong mandate to govern and preserves the MP-Constituency link. The flip side of these benefits is that FPTP is actively biased towards major parties with a concentrated following and arguably excludes millions of minor-party supporters from democracy: indeed, 68% of votes didn’t affect the outcome of the last general election.^[10] There is also a huge discrepancy between the public support for a party, and the amount of power they are able to wield in the commons. In the 2019 General Election, the Conservatives share of the vote was 43.6%, however their share of the seats is 56.2%.^[11] Conversely, the Liberal Democrats and the Green Party won 11.5% and 2.7% of the vote respectively, while only obtaining 1.7% and 0.2% of the seats. These statistics highlight how votes for the Conservative and Labour Parties have greater relative value than their competitors.

The troubling consequence of this is highlighted by political activist and commentator Femi Oluwole: because women, ethnic minorities and working-class people are more likely to feel represented by, and therefore vote for, opposition parties, the votes of women, ethnic minorities and working-class people are more likely to count for less than those who are not members of these demographic groups^[12]. It therefore follows that the MPs who sit in Parliament are less likely to enact legislative change in the areas which are needed. Make Votes Matter insists that ‘Democracy Loves Diversity’^[13]: this reflects the belief that proportional representation will ultimately give a voice to those who have traditionally been excluded from politics, and more importantly allow for the creation of a political landscape that reflects the significant presence of these groups within UK society.

A product of the First Past the Post System, the current constitution of the House of Commons allows the Conservative government to pursue a conservative agenda which is not in the interests of these demographic groups. In a powerful article for The Guardian, Afua Hirsch reflects that ‘the most sinister, perverse consequences of [George] Floyd’s murder are the new laws that put both the actual bodies of black people and anti-racist activism at risk’^[14]. This powerful sentence highlights the pincer movement tactic, whereby the government is steaming ahead in its agenda, whilst simultaneously disarming the electorate of its tools to hold the government to account. The same stands true for progress for the rights of women, the LGBTQ+ community, the disabled, and those fleeing conflict and persecution.

Whilst the FPTP system has indeed for many years prevented minor extremist parties to gain a foothold in the Commons, the Rwanda Removal Policy is one example of what can happen when extreme right-wing ideologies manage to permeate a party which benefits from this voting system. The consequences of Parliamentary Sovereignty are that if a party holding most seats in the Commons begins to adopt policies which are usually preserved for radical parties on the margins, there is little the general population can do. The fact that Belarus is the only other country in Europe which still uses the FPTP system reveals a lot about the democratic process in the UK.

Overall therefore, it is important to remember despite the fact that the government may declare itself globally to be a flagship of ‘justice’ and ‘democracy’, this not mean that either of those things have been delivered in reality. On the contrary, we need to remain critically aware and look to the likely consequences of the legislation which has been passed: namely, a more unjust society. When I read that protests by Home Office staff were met by assurances from Patel that the Rwanda Removal Policy is entirely ‘legal’, I was reminded of the Martin Luther King quote that we should “never forget that everything that Hitler did in Nazi Germany was legal.”^[15] The authoritarian tendencies which the government is displaying is inconsistent with the ‘enduring commitment to liberty under the rule of law’ evoked in the Bill of Rights Bill.^[16] The reality is that our rights are at risk and changing the voting system is the first step in protecting them.

^[1] “European Court of Human Rights grants interim measures preventing removal of asylum seeker to Rwanda pending judicial review of Rwanda Policy”, Blackstone Chambers, 15th July 2022. Accessed 3 July 2022.

^[2] ^[2] “The UK’s (New) Bill of Rights.” Public Law For Everyone, June 22 2022. Accessed 3 July 2022.

^[3] Ibid

^[4] UNHCR Observations on the Nationality and Borders Bill, Bill 141, 2021-2022. October 2021

^[5] Ibid

^[6] The Elections Bill is about undermining democracy, not shoring it up. Alina Rocha Menocal, 18 April 2022, Open Democracy.

^[7] The Government Poisonous Elections Bill is designed to cement Tory rule. David Howarth, 6 September 2021, Open Democracy. Accessed 8 June 2022.

^[8] “The Rules on MPs’ standards are hopeless. Here’s how to clean up Parliament”. Gina Miller, The Guardian, 11 November 2021. Accessed 26 May 2022.

^[9] “The Law Must Apply Fairly to All”. The Good Law Project, 25 May 2022.

^[10] Make Votes Matter Factsheet. Accessed 3 July 2022.

^[11] House of Commons Library, 10 January 2020. Accessed 12 June 2022.

^{^[12]} How Britain Voted in the 2019 Election, Ipsos. Accessed 13 July 2022.

^{^[13]} Democracy Loves Diversity, Make Votes Matter. Accessed 24^th May 2022.

^[14] George Floyd’s murder should have been a watershed, but Britain has learned nothing. Afua Hirsch, The Guardian, 25 May 2022. Accessed 1 July 2022.

^[15] Home Office staff worry they may be asked to act illegally in a culture of fear. Diane Taylor and Amelia Gentleman, The Guardian, 25 May 2022. Accessed 26 May 2022.

^[16] Human Rights Act Reform: A Modern Bill of Rights – consultation. gov.uk. Accessed 4 June 2022.

Photo Credit:”Brexit” by Ungry Young Man is licensed under CC BY 2.0.

Should we Remove Juries from Rape Trials?

Published on 11 Jul 2022 by BPP Human Rights UnitLeave a comment

Amelia Marshall discusses a range of recent developments to arguments for, and arguments against removing juries from rape trials.

In November 2018, the Labour MP for Stockport, Ann Coffey, stood up in Parliament to call for the end of juried rape trials.^[1] In so doing, she helped sustain a debate which has been raging for several years – can juries be trusted to give a fair judgment in cases of sexual violence?

The role of juries in cases of violence against women has been under increased scrutiny in the last year. Most recently, the jarringly different outcomes between Johnny Depp’s UK and US libel claims have been claimed by some as a result of the differing forms the trials took, as the UK trial was judge-only while in the US a jury had the final say. Mark Stephens, an international media lawyer, told the BBC that the common defence tactic ‘Darvo’ (short for, ‘Deny, Attack and Reverse Victim and Offender’) is ‘very, very effective against juries’, while ‘[l]awyers and judges tend not to fall for it’, making it harder for juries to recognise cases of domestic abuse.^[2] The scrutiny is being seen further up the legal establishment too. In November 2021, Dorothy Bain, the Scottish Lord Advocate, argued that juries should be scrapped in rape trials to help ease the covid backlog.^[3] According to Bain, up to 70% of the Scottish High Court’s backlog are cases of serious sexual violence, meaning that the impacts are felt most sha0rply by vulnerable women and girls.

Much like Coffey’s appeal to Parliament, Bain’s suggestion was not met without criticism. Fears of a ‘two-tier justice system’ ^[4] or of removing an important barrier to unfair trials,^[5] continue to follow any new call for juryless trials. This article is not an attempt to solve the debate. Instead, I will lay out the most common arguments on either side so that the reader can form their own judgment.

The Case For

The case for juryless rape trials can be compelling. In her speech to Parliament, Coffey quoted the research of Dr Dominic Wilmott, a researcher at Manchester Metropolitan University, who explored the relationship between rape myths and jury outcomes through a series of simulated trials. According to the study, ‘rape attitudes’ (whether or not the juror believed rape myths, such as most rapes are committed by a stranger) ‘were the strongest and most consistent predictor of the verdict decisions that juries made across the nine mock trials’.^[6] Dr Willmott went on to say that ‘the views held by the juror when they enter the courtroom explain their verdicts – regardless of the evidence and deliberation jurors undertake’, and perhaps most damningly that ‘the judge’s direction had no effect whatsoever’.^[7] It seems then, following this study, that the independence and unbiased nature of juries must be brought into question.

This is far from the only evidence that appears to undermine the impartiality of juries. After Coffey issued a freedom of information request in 2018, the CPS revealed that in the preceding five years in England and Wales young men were significantly more likely to be acquitted for rape than older men. Two thirds of men aged 18-24 were acquitted, compared to 54% of men aged 25-59.^[8] According to the Guardian, senior CPS staff believe this disparity is due to juries being ‘particularly reluctant to punish young men at the start of their adult life for serious sexual assaults’.^[9] If this is the case, it seems an obvious undermining of women and girls’ ability to access justice.

Similar issues have been seen in Scotland. Professor Fiona Leverick, a legal academic whose research influenced Dorothy Bain’s review into the prosecution of rape cases, also found that ‘prejudicial views are preventing convictions in rape cases’.^{^[10]} Like Dr Willmott, she found a link between a juror’s belief in rape myths and their likelihood to acquit, declaring that ‘a lot of people hold views about how a rape victim will behave which are simply wrong’. ^[11] Moreover, she found a desire in jurors to be ‘absolutely 100% confident’ before convicting for rape, which is ‘very difficult, if not impossible, level to achieve in any case’. ^[12] Professor Leverick’s conclusion from the study was that ‘juries were failing rape victims’.^[13]

The Case Against

While this might be painting a bleak picture of our jury system, there is obviously another side to be heard. Ailsa McKeon, a barrister at 6KBW College Hill, points out that because of ‘mandatory secrecy’, we can never know why juries come to their particular decision, making it very difficult to determine that ‘jurors acquit rape defendants because of anti-victim bias’ in a real-world setting.^[14] Cheryl Thomas reached a similar conclusion in her wide-ranging study into jury outcomes in the 2010 Ministry of Justice Research ‘Are juries fair?’. Comparing the conviction rates of rape for complainants of different ages and genders, Thomas concluded that ‘a jury’s propensity to convict or acquit in rape cases is not necessarily due to juror attitudes to female complainants’.^[15] While her data shows that juries will only convict a defendant 47% of the time if the complainant is a woman over the age of 16, compared with 77% of the time if the complainant is a man, Thomas believes this does not show an anti-female bias because the rates for female children are higher (62% for under 16 and 58% for under 13).^[16] Whether this precludes a bias against adult women, I am personally unconvinced.

McKeon also argues that replacing a jury with a judge is not more likely to result in an unbiased outcome, as ‘judges are still human and susceptible to societal influences’.^[17] Benefits to the jury system, in her mind, are that ‘among 12 jurors, subconscious biases may be voiced and debated’ and that a jury will never know potentially prejudicial information, like a complainant’s sexual history, which a judge would have to exclude from the trial but would still be aware of.^[18] This is, of course, subject to debate. Professor Leverick, for example, argues that ‘[e]ven if judges held prejudices, they have to set out reasons for a decision, which juries do not have to do. Judges would not be able to base their decision on prejudice’.^[19]

Perhaps less controversial is Thomas’ belief that juries ‘are not primarily responsible for the low conviction rate on rape allegations’.^[20] While Professor Leverick has argued that ‘[j]udge-only trials would be one way of addressing the problem’, the significantly lower conviction in Scotland (under 50% conviction rate for rape or attempted rape compared to an almost 90% overall conviction rate) could be due to a unique feature of the Scottish courts. The Scottish Courts have the availability of a ‘not proven’ verdict, in addition to ‘not guilty’ and ‘guilty’. This allows, in Professor Leverick’s view, ‘jurors the chance to sit on the fence’.^[21] Removing the ‘not proven’ verdict for rape, which has the same effect as a ’not guilty’ verdict, might have a greater impact on rape conviction rates than replacing juries in Scotland.

It is worth noting that few regard making rape trials juryless as a silver bullet. Though Dorothy Bain was tried to justify the introduction of judge-only trials in Scotland by claiming it would help with the backlog of rape cases, this is not supported by Professor Leverick, whose research influenced Bain’s call for a review. With only a limited pool of judges, Professor Leverick believes any impact on the backlog would be minimal.^[22] Any attempt to reduce the case backlog must address the source – a lack of defence lawyers.^[23] Another major proponent of juryless trials, Julie Bindel, only advocates the move amongst other legal reforms, including a ‘panel of assessors’ to help the judge, a more rigorous approach to prosecuting from the CPS and better education on rape myths across society.^[24] Though it open to debate whether removing juries from rape trials would be a solution to low conviction rates, it seems certain that juries are not the only aspect of our criminal justice system that may be in need of reform.

Conclusion

Whatever your view on juries may be, it seems unlikely they will be removed from rape trials any time soon. Drastically reshaping our criminal courts after 800 years of trial by jury would require widespread support throughout our legal and political worlds which is evidently lacking. That such monumental change is even being proposed, however, is surely a sign of how badly our courts are failing victims of sexual violence.

^[1] See House of Commons Debates, 21 November 2018, Column 344-350WH http://bit.ly/2QfA9q7, cited in Ailsa McKeon, ‘Without Rhyme or Reason: The Removal of Juries from Rape Trials’, 2019, 6KBW College Hill Blog < https://blog.6kbw.com/posts/without-rhyme-or-reason-the-removal-of-juries-from-rape-trials#> accessed 29^th June 2022

^[2] Robin Levinson-King, ‘Depp-Heard trial: Why Johnny Depp lost in the UK but won in the US’, 2022, BBC News < https://www.bbc.com/news/world-us-canada-61673676> accessed 24^th June 2022

^[3] Constance Kampfner, ‘Removing rape trial juries would create two-tier justice, lawyers warn’, 2021, The Times, accessed 25^thJune 2022

^[4] Ronnie Renucci QC, quoted by Constance Kampfner, ‘Removing rape trial juries would create two-tier justice, lawyers warn’, 2021, The Times, accessed 25^th June 2022

^[5] Felicity Gerry, ‘Juries are essential to fair rape trials’, 2018, The Times, accessed 1^st July 2022

^[6] Ella Rhodes, ‘There is a problem with juries acting on myths rather than evidence’, 2018, The Psychologist,<https://thepsychologist.bps.org.uk/volume-31/december-2018/there-problem-juries-acting-myths-rather-evidence> accessed 3^rd July 2022

^[7] University of Huddlesfield, ‘Are the preconceptions that jurors hold about rape affecting the outcomes of trials?’, 2018, Autumn issue, <https://discover.hud.ac.uk/2018/autumn/jury-bias-affecting-rape-trials/> accessed 2^nd July 2022

^[8] Alexandra Topping and Caelainn Barr, ‘Revealed: less than a third of young men prosecuted for rape are convicted’, 2018, The Guardian, https://www.theguardian.com/society/2018/sep/23/revealed-less-than-a-third-of-young-men-prosecuted-for-are-convictedaccessed 27^th June 2022

^[9] Ibid

^[10] Craig McDonald, ‘Influential academic warns Scotland’s juries are failing rape victims and judge-only trials must be considered’, 2021, The Sunday Post, https://www.sundaypost.com/fp/judge-only-trials/ accessed 1^st July 2022

^[11] Ibid

^[12] Ibid

^[13] Ibid

^[14] Ailsa McKeon, ‘Without Rhyme or Reason: The Removal of Juries from Rape Trials’, 2019, 6KBW College Hill Blog < https://blog.6kbw.com/posts/without-rhyme-or-reason-the-removal-of-juries-from-rape-trials#> accessed 29th June 2022

^[15] Cheryl Thomas, ‘Are Juries Fair?’, 2010, Ministry of Justice Research Series 1/10 February 2010, P.31 < https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fair-research.pdf> accessed 2^ndJuly 2022

^[16] Ibid, p.32

^[17] Ailsa McKeon, ‘Without Rhyme or Reason: The Removal of Juries from Rape Trials’, 2019, 6KBW College Hill Blog < https://blog.6kbw.com/posts/without-rhyme-or-reason-the-removal-of-juries-from-rape-trials#> accessed 29th June 2022

^[18] Ailsa McKeon, ‘Without Rhyme or Reason: The Removal of Juries from Rape Trials’, 2019, 6KBW College Hill Blog < https://blog.6kbw.com/posts/without-rhyme-or-reason-the-removal-of-juries-from-rape-trials#> accessed 29th June 2022.

^[19] Craig McDonald, ‘Influential academic warns Scotland’s juries are failing rape victims and judge-only trials must be considered’, 2021, The Sunday Post, https://www.sundaypost.com/fp/judge-only-trials/ accessed 1^st July 2022

^[20] Cheryl Thomas, ‘Are Juries Fair?’, 2010, Ministry of Justice Research Series 1/10 February 2010, P.v < https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fair-research.pdf> accessed 2^ndJuly 2022

^[21] Craig McDonald, ‘Influential academic warns Scotland’s juries are failing rape victims and judge-only trials must be considered’, 2021, The Sunday Post, https://www.sundaypost.com/fp/judge-only-trials/ accessed 1^st July 2022

^[22] Ibid

^[23] Vic Rodrick, ‘Shortage of Defence Lawyers Add to Backlog in Scottish Courts’, 2021, The Times, accessed 1^st July 2021

^[24] Julie Bindel, ‘Juries have no place in rape trials. They simply can’t be trusted’, 2018, The Guaradian < https://www.theguardian.com/commentisfree/2018/nov/21/juries-rape-trials-myths-justice> accessed 21^st June 2022

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.

Photo Credit:”jury summons” by Robert Couse-Baker licensed CC BY 2.0.

Cherry-Picking Asylum Seekers: How the Nationality and Borders Act Creates a Two-Tier Asylum System.

Published on 7 Jun 2022 by BPP Human Rights UnitLeave a comment

Emily Hobhouse explores the how the Nationality and Borders Act is creating an asylum system that discriminates against asylum seekers who have arrived illegally in the UK.

What is the Nationality and Borders Act?

The Nationality and Borders Act (the “Act”) received royal assent on the 28^th April. All provisions are now law and the measures within the act will be implemented over the coming months.^[1] The Bill was first introduced in July 2021 to overhaul the asylum, immigration and trafficking provisions. It went through a lengthy ping-pong stage but on its fourth presentation to the Lords, Labour peers decided it would not be appropriate defeat the Act again, instead choosing to abstain.^[2]

Compliance with the Refugee Convention

Baroness Chakrabarti, pitched a single final amendment requiring that the act be read and given effect in a way which is compatible with the Refugee Convention. The Refugee Convention was signed by the UK in 1951 and is the first truly international agreement covering the most fundamental aspects of a refugee’s life. It sets out the most basic rights which should be afforded to refugees by signatory states^[3]. Baroness Chakrabarti’s amendment was rejected by the government. Tom Pursglove, the Minister for Justice and Tackling Illegal Migration told the commons that “it is simply, unnecessary, inappropriate and unconstitutional for the courts to have a duty to make declarations of incompatibility in circumstances where questions of compliance have already been determined by parliament”^[4]. This is the first indication that the Government is not intending to be held to account in the courts for breaches of the Refugee Convention.

Sonali Naik QC from Garden Court Chambers described the Act at a recent Young legal Aid Lawyers event as “without a doubt the biggest legal assault on international refugee law since signing the Refugee Convention”.

The Current System: Resettlement and Asylum

There are two ways to become a recognised refugee in the UK. Firstly, the resettlement route. This is the transfer of recognised refugees from one state to another that has agreed to admit them and ultimately grant them a route to permanent settlement. The UNHCR is mandated to undertake resettlement. Of the 20.7 million refugees worldwide, less than 1% are resettled each year. In 2021, only 1587 people were granted protection through the resettlement scheme in the UK.^[5] The UK government has also begun to create its own bespoke resettlement schemes like the BNO visas for Hong Kong nationals; the Afghan Resettlement Scheme; and the Family Visa Scheme and Homes for Ukraine for Ukrainian nationals.

The second route to settling in the UK as a refugee is through a successful asylum claim. There is no legal route to come to the UK specifically to claim asylum as there is no ‘asylum visa’. Asylum can consequently only be applied for once the person has reached British soil. An asylum seeker has 2 options: Enter the country legally, for example on a student or visitor visa, and make a claim within the country; or enter illegally, for example in the back of a lorry or across the channel^[6]. Many asylum seekers are forced to rely on the illegal route due to the requirements and costs of other visas, for example owning a passport. This is illustrated by the fact that, of the 16,510 people who have crossed the channel in 2021, only 317 had passports when picked up by the border office.^[7]

How the Nationality and Borders Act Creates a “Two-tier” System

The government contends that the Nationality and Borders Act seeks to “increase the fairness of the system to better protect and support those in need of asylum and to deter illegal entry into the UK, thereby breaking the business model of people smuggling networks and protecting the lives of those they endanger”.^[8]

The Act does this by creating two groups of asylum seekers. Group 1 are the ‘good’ asylum seekers who have arrived by legal means like resettlement or bespoke schemes. These asylum seekers will receive all rights and protections under the Refugee Convention, for example routes to resettlement. Group 2, are those who have arrived illegally and will not be privy to such rights. They will only receive temporary protection with limited rights to welfare benefits, family reunion and resettlement.^[9]

Family reunion is one of the safest routes to the UK and is particularly important for women and children. Limiting this route would restrict access to the safe route and leave families with the harrowing choice of being separated from their loved ones, or embarking on a treacherous journey to reach them in the UK. This penalising of refugees dependent on how they arrived in the UK, potentially discriminates against women and children who made up 90% of the 29,000 people who came safely to the UK in the last five years as part of family reunion.^[10]

Offshore Processing

In addition to restricted rights, the Nationality and Borders Act enables the British government to send asylum seekers offshore. A £120 million deal has been struck with the Rwandan government to implement the plan. Upon arrival, asylum seekers are now screened for any possible reasons why they shouldn’t be sent to Rwanda. These include unaccompanied minors, some people with special circumstances, and Rwandans fleeing the Kagame regime^[11].

At the beginning of May, fifty asylum seekers were informed of the intention to move them to Rwanda within the upcoming weeks^[12]., their asylum claims will be processed under Rwandan law and most shockingly, if granted asylum, they will not be able to return to the UK but must stay in Rwanda itself, or transferred to another safe country.

Of most concern is that the moving of asylum seekers to a different jurisdiction could lead to mistreatment of the asylum seekers out of the watchful eyes of lawyers and charitable groups in the UK. It has been compared to Australia’s now abandoned offshore processing which created unimaginable suffering, cost huge amounts of money and did not work in its strategy as a deterrent^[13]. The UNHCR have accused the government of “shifting[ing its] asylum responsibilities” and “evad[ing] international obligations”.^[14]Moreover, The Refugee Council have estimated the scheme will cost £1.4 billion a year.

Is it Legal?

Litigation will inevitably follow the implementation of the Rwanda plan. While the refugee convention has not been interpreted to prevent the removal of a refugee to a third safe country (see for example the Dublin System), such removals may be illegal if they breach the Human Rights Act. If asylum seekers are removed to a third country where they will be subject to inhumane or degrading treatment, the UK government will be in breach of Article 3. It is yet to be seen whether asylum seekers will be subject to such treatment but as there are countless LGBTQI+ and political refugees from Rwanda itself, there is significant cause for concern.

Cherry-picking Asylum Seekers

The Nationality and Borders Act is yet another piece of legislation aimed to restrict the rights of those fleeing persecution, and prevent legitimate arrivals in the UK who are claiming asylum. The draconian measures are backed up by the allegations that economic migrants are exploiting the asylum system^[15]. However, these accusations are disputed by statistics. Most of those who arrive in the UK on small boats across the channel are recognised as refugees, including 89% of Iranians, 97% of Eritreans, 99% of Syrians and 47% of Iraqis^[16].

In reality, the Nationality and Borders Act is an affront to the UKs responsibilities to refugees worldwide. It creates a two-tier system where asylum seekers are cherry picked according to the UK government’s discretion, instead of International Refugee Law. While the bespoke schemes are welcome, discrimination between those fleeing persecution is not. While it is yet to be seen whether such differential treatment is legal, it must not be forgotten that such treatment is in no way desirable.

^[1] https://www.parliament.uk/business/news/2021/december-2021/lords-debates-nationality-and-borders-act/

^[2] https://www.ein.org.uk/news/nationality-and-borders-act-become-law-labour-decides-it-would-be-inappropriate-house

^[3] https://www.unhcr.org/uk/news/stories/2001/6/3b4c06578/frequently-asked-questions-1951-refugee-convention.html#_Toc519482137

^[4] https://www.ein.org.uk/news/nationality-and-borders-act-become-law-labour-decides-it-would-be-inappropriate-house

^[5] https://www.unhcr.org/uk/asylum-in-the-uk.html

^[6] https://righttoremain.org.uk/toolkit/enter-uk-asylum

^[7] https://www.telegraph.co.uk/news/2022/02/24/almost-channel-migrants-arrive-without-passports-told-shred/

^[8] https://www.parliament.uk/business/news/2021/december-2021/lords-debates-nationality-and-borders-act

^[9] https://www.refugeecouncil.org.uk/information/refugee-asylum-facts/differential-treatment-clause-11/

^[10] https://www.refugeecouncil.org.uk/information/refugee-asylum-facts/differential-treatment-clause-11/

^[11] https://www.politico.eu/article/uk-seals-deal-with-rwanda-to-offshore-asylum-migrant-seekers/

^[12] https://www.theguardian.com/uk-news/2022/may/14/fifty-migrants-to-be-sent-from-uk-to-rwanda-in-a-fortnight-says-boris-johnson

^[13] https://www.jcwi.org.uk/unspeakably-cruel-new-plans-to-send-asylum-seekers-to-rwanda

^[14] https://www.ft.com/content/25fecf58-22c9-48d0-80c7-917a0ff81e3f

^[15] https://www.politico.eu/article/uk-seals-deal-with-rwanda-to-offshore-asylum-migrant-seekers/

^[16]https://twitter.com/mckinneytweets/status/1496797427013140484?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1496797427013140484%7Ctwgr%5E%7Ctwcon%5Es1_c10&ref_url=https%3A%2F%2Ffreemovement.org.uk%2Fis-it-legal-to-outsource-the-uks-refugee-responsibilities-to-rwanda%2F

Photo Credit: “Migrant / refugee boat on the beach at Therma” by adamansel52 is licensed under CC BY 2.0.

The Taliban’s Takeover and the Consequences for Female Judges in Afghanistan

Published on 20 May 202220 May 2022 by BPP Human Rights Unit1 Comment

Asha Kaushal discusses how the Taliban’s takeover and creation of a legal vacuum in Afghanistan has significantly undermined the rights of female judges in the country.

In August 2021 Afghanistan fell to the Taliban. After the US withdrawal, concerns arose over what exactly Afghanistan’s legal system would look like under a Taliban regime, and in particular, what role women would be allowed to play in this new system. Despite the sweeping promises made by the Taliban guaranteeing women’s rights to remain in work and education, the experiences of female judges within the country have shown an unsettling departure from this narrative. Indeed, their accounts highlight a fear of being tracked down and punished for their former work, hence many women have fled, been evacuated or are in hiding. This article presents the uncertain future that female judges face in Afghanistan as a result of the legal vacuum created by the Taliban’s takeover.

Post-2001 Legal Reconstruction:

In the framework of post-2001 Afghanistan, the judiciary was largely shaped by the influence of the US, EU, UN, Japan, and several international humanitarian organisations.^[1] A significant reconstruction of the legal system subsequently took place including the rebuilding of tribunals, training judges, and codifying laws such as the 2004 Constitution and Criminal Procedural Code.^[2]

Although the constitution suffered from institutional design flaws such as a weak system of checks and balances, it endeavoured to create a democratic political system and guaranteed equal rights and liberties for men and women. Innumerable laws and legal procedures were thus created in line with international norms. The judiciary also emerged under Article 117 of the Constitution as an independent organ of the state, with the Supreme Court as the highest judicial forum, heading the judicial power of Afghanistan (Article 116).^[3]

It was under this legal structure that the role of women became more pronounced. In fact by 2020 there were 250-300 female judges within Afghanistan (approximately 8-10%), which represented the most significant increase of female judicial participation in the country’s history.^[4] However, as stated in 2020 by Anisa Rasooli (Head of the Court of Appeal for Serious Crimes of Corruption), though ‘considerable progress is being implemented…if the current situation is interrupted because of conflict or political and social unrest, then no one knows what the future of the judicial system will be’.^[5] This statement has obviously become a reality since the Taliban’s takeover.

The Taliban Takeover:

Following the Taliban’s victory, it was made clear that the billion dollar legal and judicial system built by the US and UN in Afghanistan would be scrapped and replaced with Sharia law. What exactly constitutes Sharia in the Taliban’s eyes is currently unclear. The 2004 Constitution for example is considered as being ‘against Sharia’ despite the fact it established Islam as the state religion and the supreme source of law in the country (Article 3).^[6] There are subsequently fears that Afghanistan will simply see the return of the Taliban’s pre-2001 legislation which according to Rana Osman (a researcher at SOAS University), could lead to ‘the justice system becoming an extension of the arm of power of an authoritative state’.^[7]

Clear expressions of the above can be seen by the dissolution of the Afghanistan Independent Bar Association – which was one of the main sources of justice in the country – and the decree that female lawyers would no longer able to practice.^[8] These actions represent a sharp contrast to the regime’s initial rhetoric which ‘guaranteed’ that women would be able to remain active in society, benefit from their rights, and work ‘shoulder to shoulder’ within Sharia law.^[9] Taliban statements which emphasised that women would also be able to join the government, and that their rights would be respected ‘within the framework of Islamic law’ have equally failed to materialise.^[10]

The Reality for Female Judges:

Instead, since September 2021 over two hundred women judges have been forced to hide or flee following the Taliban takeover.^[11] Approximately 100 female judges and their families have been evacuated from Afghanistan by UK based pro-bono lawyers.^[12] Others have been evacuated and resettled in Greece, Australia, Ireland and Canada.

Though female judges represented key actors in Afghanistan’s judicial system and embodied the structural changes which were taking place in the sphere of state justice, with the fall of Kabul they have become vulnerable to reprisal. For example, Farah Altaf Atahee recounted how when the Taliban seized power, she ‘realised that thousands of recently released prisoners, including Taliban leaders and heroin traffickers, ‘wanted revenge’ on her and other judicial officers.^[13] A similar experience was shared by Judge Masooma (not her real name) who received an influx of death threats from men she had sent to prison. Prior to the Taliban takeover, Masooma was ruling over a case investigating a Taliban member murdering his wife. Upon finding him guilty, Masooma sentenced him to 20 years in prison. She recalls how after the case concluded, the criminal approached [her] and said ‘When I get out of prison, I will do to you what I did to my wife’. Masooma recounts that since the Taliban took power, the man in question has called her many times and told her that he has taken all of her information from the court offices.^[14]

The imminent threat that female judges face in Afghanistan has forced many to flee and leave their families behind. For instance ,Mahtab Fazl was able to escape with her husband and two sons, but fears for her family remaining in the country: ‘because of my job as a judge, every day they are facing risks, they’re in danger. We need to get them out of Afghanistan’.^[15] Other female judges have described taking desperate measures in attempts to avoid being tracked and punished for their former work. Mrs Justice McGowan who is working to help resettle Afghan judges recalls how one woman told her that she had burnt all of her legal books so that the Taliban ‘would not find law books in her home’.^[16]

Despite their sophisticated and extensive legal experience and knowledge, female judges have been replaced by the Taliban with fighters who lack any judicial qualifications. The consequence of this is described by Saeeq Shajjan who states ‘there are no more courtrooms, the streets are the courtrooms. Whatever a commander or an elder says is now the law’.^[17]

Conclusion:

Since the Taliban’s takeover, any steps taken to rebuild Afghanistan’s legal and judicial systems post-2001 have deteriorated. Instead, a legal vacuum has been created, judicial institutions have been dismantled and militants without qualifications have been put in power. This marks a significant setback for female judges who had become key actors in facilitating the delivery of justice in the country. Their current reality is conversely one where the threat of retaliation for their profession has forced them into fleeing and hiding.

Though great effort is being put into helping evacuate and resettle female judges abroad, the international community also has a collective responsibility to demand that the Taliban ensure the rule of law is upheld, and the appropriate judicial procedures are employed. Failure to do so will ultimately mean that the rights which women judges, lawyers, and activists spent decades fighting for are forgotten.

^[1] Antonio De Lauri. 2020. Women Judges in Afghanistan: An Interview with Anisa Rasooli. https://www.cmi.no/publications/7268-women-judges-in-afghanistan-an-interview-with-anisa-rasooli. Accessed 20 March, 2022.

^[2] Ibid.

^[3] Ibid.

^[4] Claire Press. 2021. Female Afghan judges hunted by the murderers they convicted. https://www.bbc.co.uk/news/world-asia-58709353. Accessed March 19, 2022.

^[5] Antonio De Lauri. Women Judges in Afghanistan.

^[6] Mahir Hazim. 2022. Going Back to Zero: How the Afghan Legal and Judicial System is Collapsing Under the Taliban Regime. https://www.jurist.org/commentary/2022/03/mahir-hazim-afghan-legal-judicial-system-collapsing-taliban-regime/. Accessed March 21, 2022.

^[7] Stefanie Glinski. 2021. 12 Million Angry Men. https://foreignpolicy.com/2021/10/28/afghanistan-taliban-justice-sharia/. Accessed March 20, 2022.

^[8] Mahir Hazim. Going Back to Zero.

^[9] Lyse Doucet. 2021. Afghan women to have rights within Islamic law, Taliban say. https://www.bbc.co.uk/news/world-asia-58249952. Accessed March 22, 2022.

^[10] Ibid.

^[11] Diane Taylor. 2022. The Afghan judge working to free her sisters left behind. https://www.theguardian.com/world/2022/jan/06/the-afghan-judge-working-to-free-her-sisters-left-behind. Accessed March 23, 2022.

^[12] Ashna Hurynag. 2021. Afghanistan: More than 100 female judges and their families rescued by UK lawyers after Taliban takeover. https://news.sky.com/story/afghanistan-more-than-100-female-judges-and-their-families-rescued-by-uk-lawyers-after-taliban-takeover-12503084. Accessed March 21, 2022.

^[13] Ilya Gridnef. 2022. ‘The Taliban want revenge’: Afghanistan’s female judges in exile in Australia. https://www.theguardian.com/australia-news/2022/feb/20/the-taliban-want-revenge-afghanistans-female-judges-in-exile-in-australia. Accessed March 23, 2022.

^[14] Claire Press. Female Afghan judges hunted by the murderers they convicted.

^[15] Ilya Gridnef. ‘The Taliban want revenge’.

^[16] Naga Munchetty. 2021. BBC interview – Afghan women judges. https://www.judiciary.uk/announcements/bbc-interview-afghan-women-judges/. Accessed March 20, 2022.

^[17] Ali M Latifi and Mujtaba Haris. 2021. Afghanistan’s female judges forced into hiding under Taliban rule.https://www.aljazeera.com/news/2021/10/18/afghanistan-female-judges-hiding-taliban-takeover. Accessed March 22, 2022.

Image credit: Jorono, Pixabay: https://pixabay.com/photos/international-banner-flag-2690812/

Citizenship Stripping via The Nationality and Borders Bill and the Victimisation of Ethnic Minorities – the British Saga Yet to Unfold!

Published on 20 May 2022 by BPP Human Rights UnitLeave a comment

Farzana Yasmin Khan commentates on the Nationality and Borders Bill and the injustice of the stripping of citizenship permitted under clause nine.

The Nationality and Borders bill presents a formidable array of draconian policies – one of which is citizenship stripping without any prior notice. This measure is likely to have been triggered by British woman, Shamima Begum, who was stripped of citizenship despite fulfilling the threshold of a victim of online grooming, coercion, exploitation, international trafficking, underage marriage and statutory rape.^[1] Not to mention, unlike the Rotherham (England) victims of grooming and child sexual exploitation, Begum was not deemed worthy of rehabilitation despite her expression of interest.^[2] Setting aside the inconsistencies in Begum’s case when it comes to stripping away protections against statelessness compared to Pham^[3] and Al-Jedda^{^[4]}, the British Government’s track record on citizenship stripping^[5] for the last two decades begs the normative question: Is the introduction of such policy via legislative measure is necessary or appropriate?^[6]

The Creation of a ‘Second-Class Citizenship’ and the Victimisation of Ethnic Minorities:

From the outset, this Bill clearly sets a dangerous precedent, pushing the divisive narrative that somehow some citizens are less equal than their vast counterparts by virtue of nothing but their ethnic background. The Bill allows the Government to treat minority and mixed heritage Britons differently to their white counterparts for committing the same crime, since the Government says it’s possible to strip Britons of their citizenship if they have another nationality to fall back on, for example by virtue of the country their parents come from.^{^[7]}

Consequently, it seems to create a second class citizenship like the Orwellian adoption in Animal Firm: ‘all [humans] are equal, but some are more equal than others’.^[8]

The irony is that the sole purpose of legislation should be to ensure that the rights of vulnerable groups such as minorities are well protected within its ambit, yet this Bill serves as a tool of oppression and marginalisation. If we consider the case of Begum as an example, it is clear that this bill is an insult to our much-revered rule of law.

A Tool of Marginalisation and Oppression

As a consequence of the above, an atmosphere of fear is being imposed upon ethnic minority groups in the United Kingdom. Whereas, even If White-British citizens are to commit crimes such as fraud, terrorism (including far-right terrorism and hate crimes) and actions that can be deemed contrary to ‘public good’, they are not at risk of having their citizen stripped in the same unjust way. For this reason, the ‘potentially racist’ label ,as offered by London Assembly, seems fully earned as well as justified.^[9]

Mockery of our Anti-Discrimination Law

The Equality Act 2010 makes discrimination unlawful. It sets out that indirect discrimination occurs when there’s a practice, policy or rule which applies to everyone in the same way, but has a heightened impact on some.^[10]Applying this principle, while the Borders Bill applies to everyone equally, it impacts disproportionately those from the ethnic minorities with at least one parent born abroad/outside the UK. Hence, this divisive policy can be deemed indirectly discriminatory under the Equality Act 2010.

While our Government has been stripping people of their citizenship for the last 15 years, primarily on the ground of National Security, this Bill paves the way for minority citizens to fall further victim to prejudicial biases by legalising such discriminatory practice without giving them a chance to clear their name. Hence, it will likely escalate further miscarriage of justice while heightening racial disparity. Accordingly, barristers find this Bill to be unconstitutional for its disproportionate impact on minorities.^[11]

In light of the above, one ought to ask why the Government seeks to keep certain citizens on their toes who happen to be from minority backgrounds? Is it the state’s way of questioning their (minority) allegiance to the very soil they call home, namely Britain?

Arbitrary Provision Warranting Action via Judicial Review

To add insult to this already existing injury, the stripping of citizenship under clause nine, is said to be permitted if the Government considers such as ‘conducive to the public good’. Not only does this introduce a worrying trend, where exceptions are normalised, as the Bill doesn’t define the nitty gritty of the actions that could render one susceptible to be stripped of their citizenship, the Government are left with a huge amount of discretionary power.

When left with such power, decision makers can justify any excuses as they deem fit to strip someone of their citizenship and can conveniently go down a slippery slope. This is exemplified by Trump’s Muslim ban and the extreme measures adopted in Nazi Germany. I would argue that the very arbitrary nature of this legislation should warrant an action in a judicial review at the highest court of the land, challenging the validity and lawfulness of the legislation itself. Afterall, nothing enacted can’t be overturned.

Assault on our Civil Liberties and the Right to a Fair Trial

As a final point, the right to a fair trial is also under threat as a result of this bill. Lawyer Katie Lines, from human rights organisation Liberty which intervenedin Ms Begum’s appeal, said: “The right to a fair trial is not something the Government can take away on a whim.”^{^[12]} Similarly barristers have considered such practice to be an assault on the right to fair trial. Afterall, this is a fundamental part of our justice system and equal access to justice must apply to everyone. Ms Begum’s solicitor, Daniel Furner, stated that his client “never had a fair opportunity to give her side of the story”, adding that she is “not afraid of facing British justice; she welcomes it. But the stripping of her citizenship without a chance to clear her name is not justice – it is the opposite.”^{^[13]}

Conclusion

In a post Brexit divided Britain, it is crucial to remember: the only party who gains anything from policies as such the Nationality and Borders Bill is the Government by distracting the public from its own failures, lies and liabilities post pandemic.

As a law student who has successfully challenged prejudicial biases on numerous occasions, it remains vital to emphasise that no legislation should ever be premised on prejudicial biases in ‘othering’^[14] our fellow minority citizens. It starts with shedding our imperialistic presumption of superiority, which holds the colonial saviour ideology that seeks to civilise the backward ‘others’ such as Muslim women who are branded as oppressed victims of patriarchy and lack agency.

The fact that this narrative of Muslim women lacking agency and needing to be saved was conveniently missing in the case of Begum despite her being a child victim of grooming, serves to illustrate my point. Therefore, unlike the Rotherham victims, it remains questionable why she can’t be rehabilitated.

No matter how normalised discriminatory policies are, if anything has been learned since the brutal murder of George Floyd, humanity collectively must overthrow the tyranny of systematic and structural racism which underpins such policies. It demands the sheer audacity to call out the biting inequality, often rooted in sickening racial supremacy, no matter where we see it. The responsibility falls on all of us and not just on the shoulder of minority citizens.

It starts with asking our collective human conscience the uncomfortable question: are we comfortable seeing our loved ones, friends, colleagues, helpers, and healers, to be treated as second class citizens for no other reasons but simply by virtue of their ethnic backgrounds?

If we are, then we ought to be prepared to be seen with utter disgust by the next generation that will come after us just as we look back on those who perpetuated the inhumane slavery and the decades of discrimination that subsequently followed from such abhorrent albeit normalised practices.

^[1] Human Rights and British Citizenship: The Case of Shamima Begum as Citizen to Homo Sacer
Mercedes Masters and Salvador Santino F. Regilme Jr. <https://doi.org/10.1093/jhuman/huaa029>

^[2] (n1), 353

^[3] Pham v Secretary of State or the Home Department (2015), §§38; 64; 101 <https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKSC/2015/19.html&query=(Pham)>

^[4] Secretary of State for the Home Department v Al-Jedda <https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKSC/2013/62.html&query=(Al-Jedda)+AND+(2013)>

^[5] https://freemovement.org.uk/how-many-people-have-been-stripped-of-their-british-citizenship-home-office-deprivation/

^[6] The Deeper Lesson from Terrorist Expatriation Proposals by Steve Vladeck

^[7] Nationality and Borders Bill: Why is it causing protests? By Nalini Sivathasan <https://www.bbc.co.uk/news/newsbeat-59651523>

^[8] Adapted from George Orwell’s 1945 novella Animal Farm.

^[9]Why we need to unite against the Nationality and Borders Bill by Grace Almond and Christopher Almond <https://www.greenpeace.org.uk/news/unite-against-the-nationality-and-borders-bill/#:~:text=The%20Nationality%20and%20Borders%20Bill%20puts%20barriers%20in%20the%20way,turn%20our%20backs%20on%20migrants.>

^[10] ibid

^[11] (n10)

^[12] MISUSE OF EXTREME POWERS LATEST THREAT TO RULE OF LAW, SAYS LIBERTY FOLLOWING SHAMIMA BEGUM RULING Posted on 26 Feb 2021 <https://www.libertyhumanrights.org.uk/issue/misuse-of-extreme-powers-latest-threat-to-rule-of-law-says-liberty-in-shamima-begum-case/#:~:text=Stripping%20someone’s%20citizenship%20without%20due,to%20return%20to%20the%20UK.>

^[13] Shamima Begum’s case and the assault on the right to a fair trial by barrister Ameer Ismail.<https://mlag.legal/blog/shamima-begums-case-and-the-assault-on-the-right-to-a-fair-trial>

^[14] (n1), 349-350 ‘Othering’ is the act of ‘treating people from another group as essentially different from and generally inferior to the group you belong to’ (Macmillan Dictionary 2019 (online): ‘Othering’ definition See Regilme (2016) for the politics of ‘Othering’ in migration policies.)Particularly within identity politics, generating collective and in- dividual identity through the distinction from and discrimination against others formulates the polarization of the Self and the Other, the ‘Us vs Them’ (Said 1978: 3–9; Mitchell 1988: 167–88).

Said stresses how the West historically and contemporarily exploits ‘Othering’ as a form of identity-building, especially towards Muslims. He argues that the act of ‘Othering’ in the West is augmented by polarizing rhetoric stemming from Orientalist and colonial ideologies of the Occident versus the Orient. These ideologies established the binary of ‘We’ ‘superior’ white Westerners and ‘Them’ ‘inferior’ non-white ‘Others’ (Said 1978: xvii).

Said highlights that the West consistently depicts Arabs, specifically Muslim Arabs, as lesser through multiple methods but especially through political discourse (ibid.). Throughout a long history of ‘Othering’, the West successfully juxtaposed the two socio-political cultures as binary opposites. Thus, if historical and contemporary British nationhood is rooted in imagined-and-established colonial thought embedding ‘Us vs Them’ ethno-national narratives, ‘Britishness’ can only ever be inherent to white British people.

It is firstly noticeable that UK Home Secretary Javid employs ‘Othering’ rhetoric, using the pronoun ‘they’ for British citizens who joined Islamic State, and directly compares ‘them’ to the collective ‘we’. Furthermore, he swiftly refers to ‘Britishness’ and ‘the values we stand for’ being in direct contrast to ‘them’ and ‘their’ views. He emphasizes the contrast between ‘Us’ and ‘Them’ by applying hyperbolic emotive language, such as stating that ‘they hate our country’.

Using such terminology immediately panders to populist movements and rhetoric (Greenslade 2019). Furthermore, it deepens the colonial-rooted ideology and system of the ‘superior’, ‘civilized’ ‘Us’ and the ‘back- wards’, ‘barbaric’ ‘Them’ (Said 1978), entrenching views of ‘Them’ Muslims as an active threat to ‘Us’. These notions are not only held by senior politicians but are also reflected within the British media following the Begum case.

Image credit: ‘unrecognizable person demonstrating British passport’ Ethan Wilkinson VIA PEXELS

The Case of Torture and the United States

Published on 30 Mar 202230 Mar 2022 by BPP Human Rights UnitLeave a comment

Mahrukh Qazilbash elucidates the universal prohibition against torture and other forms of brutal treatment and draws a contrast between those who subscribe to such prohibitions, particularly the United States, and their less than complimentary domestic behaviour.

There is much debate within the international arena about what exactly comes under the framework of human rights and which rights apply to whom. However, certain rights are universally acknowledged to be jus cogens norms which imply obligations erga omnes (as defined in Article 69 of the VCLT and the Barcelona Traction case, respectively). Article 4 of the ICCPR denotes some non-derogable rights such as an individual’s right to life and the prohibition of torture. This non-derogable prohibition on torture is reinforced further by Common Article 3 of the Geneva Convention and the War Crimes Act which stipulates the rights and treatment of prisoners of war (POW). Moreover, the U.N Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) defines torture as “severe pain or suffering, whether mental or physical” within its first article – an international convention that the United States has both signed and ratified. Therefore, the “systematic use of torture” in the United States over the past several years is in direct violation of this peremptory norm and showcases the failure of the human rights regime in empowering the individual rather than the state.

Although several governments in the US have skirted around the term torture, they have not shied away from using obvious euphemisms such as President Bush’s “alternative set of procedures” which included “waterboarding (or near-drowning), sleep deprivation, forced standing, stress positions, hypothermia, slapping, light and noise bombardment, and extreme isolation.” Furthermore, institutions such as the American Civil Liberties Union (ACLU) have reported that:

“[D]etainees have been beaten; forced into painful stress positions; threatened with death; sexually humiliated; subjected to racial and religious insults; stripped naked; hooded and blindfolded; exposed to extreme heat and cold; denied food and water; deprived of sleep; isolated for prolonged periods; subjected to mock drownings; and intimidated by dogs.”

This treatment has rightfully been called torture under the definitions provided in the CAT and many detainees have died in US custody after such interrogations. However, the US government maintains that this treatment does not constitute torture under the state’s own narrow definition of the term. It becomes necessary then to ask, how is it possible that the US, a self-described defender of human rights, could violate a non-derogable right such as torture without repercussions? If the international human rights legal system existed with equal empowerment of individuals and states, would such a phenomenon be allowed to occur?

While there was an observable rise in torture in a post-9/11 world, especially under the support of the Bush Administration, as Mayerfeld emphasises, “we expect the law to protect fundamental human rights against bureaucratic zeal, partisan calculations, and shifts in public sentiment.” This erosion of the protection against torture was done through the RUDs that the United States formulated against the ICCPR and the CAT at the time of ratification. This was done in two major steps, firstly “they watered down several treaty obligations, including those regarding the prohibition, prevention, and punishment of torture and other forms of ill-treatment” and secondly, “they prevented U.S. courts from enforcing the treaties’ provisions.” Under these reservations, as Luban and Shue aptly note, the U.S. Congress adopted a “cramped, convoluted, and arbitrary definition of mental pain or suffering, so narrow that few techniques of mental torment qualify as torture under the law.” This meant that unless the treatment of individuals met this narrow definition of torture according to the U.S., they could essentially claim any other treatment was ‘merely’ cruel, inhuman and degrading treatment or punishment, although those are also very much forbidden under human rights law. Luban and Shue go on to argue that these “restrictions are wrongheaded because they have nothing to do with the basic definition of torture as severe pain or suffering. They also make it nearly impossible to prosecute psychological torture, including the most egregious techniques used in the CIA’s now-shuttered secret prisons and in Guantanamo.”

None of this was done innocently, nor was it a new phenomenon in the history of the U.S. due to the events of September 11, as some would like to suggest. As Rosemann rightly points out, examples such as the “promotion of Major General Geoffrey Miller from commander of the task force in charge of the prison at Guantanamo to head of prison operations in Iraq exhibits not only political continuity but also a personal one.” Furthermore, the legislative record of the United States clearly shows “repeated concerns that unless the definition of mental torture is written narrowly, U.S. law enforcement officials might face accusations of torture.” In fact, several legal loopholes were used not only to avoid accountability but also to keep individuals from accessing courts and other legal protections of their rights. As Jennifer Correale deftly points out, “[v]ictims of human rights abuses often find themselves without remedy because their own governments refuse to provide one and because most international tribunals will not entertain the claims of individuals.”

Here it becomes necessary to take a slight detour to one of the most favoured justifications of torture proponents of the United States have made: the ticking bomb scenario. This hypothetical situation has often been employed to illustrate a set of circumstances in which its advocates believe torture is excusable. This “dreamland”, as Henry Shue calls it is “badly misleading” as the set of circumstances it requires will never come to fruition. However, Shue goes on to state, that even if “the perfect time for torture comes, and we are not prepared to prevent a terroristic catastrophe, we will at least know that we have not sold our souls and we have not brutalized the civilization.” The fact of the matter remains, that the prohibition of torture exists both in human rights treaties such as the CAT and the ICCPR but also under customary international law under the Geneva Conventions as a non-derogable right. If the international human rights regime cannot protect individuals from their most essential human rights being violated by states themselves, it is difficult to believe that human rights empower individuals at all – let alone over the state.

Photo Credit: WIKIMEDIA COMMONS

Apartheid South Africa and Israel’s Treatment of the Palestinians – Modern Parallels

Published on 25 Jun 2021 by BPP Human Rights UnitLeave a comment

Hamza Fareed Malik discusses the discriminatory treatment of Palestinians by Israeli authorities and considers comparisons drawn between apartheid in South Africa and contemporary Israel.

The 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid (“Apartheid Convention”) and the 1998 Rome Statute to the International Criminal Court (ICC) define Apartheid (from Afrikaans, literally: Apartness)^[1]as a crime against humanity consisting of three primary elements:

An intent to maintain domination by one racial group over another.
A context of systematic oppression by the dominant group over the marginalized group.
Inhumane acts.

From 1948 to 1993, South Africa was an apartheid state. Sanctioned by law, institutional racial segregation and political, economic, and social discrimination permeated through South African society, favouring white South Africans and persecuting the non-white population. Despite strong opposition both within and outside the country, segregationist legislation persisted for almost 50 years.

Although borne of the South African context, the definition of apartheid provided by the Apartheid Convention has increasingly been used in relation to Israel and the Occupied Palestinian Territory (OPT). But is that assertion accurate? International human rights groups and Israeli activists think so, as do South African leaders, the United Nations, specifically, General Assembly Resolution 3379 and 1904,^[2] and a former US President.^[3] A comparison of the policies of South Africa during apartheid with Israel’s policies towards Palestinians depict alarming similarities.

A critical 213-page report^[4] by leading rights group Human Rights Watch (HRW), in April 2021, stated that actions of the Israeli government amounted to crimes against humanity of apartheid and persecution against Palestinians. The report entitled ‘A Threshold Crossed’ is “based on an overarching Israeli government policy to maintain the domination by Jewish Israelis over Palestinians, and grave abuses committed against Palestinians living in the occupied territory.”^[5]

The report found that “Israeli authorities methodically privilege Jewish Israelis and discriminate against Palestinians. Laws, policies, and statements by leading Israeli officials make plain that the objective of maintaining Jewish Israeli control over demographics, political power, and land has long guided government policy.”^[6]A statement by former Israeli Prime Minister, Benjamin Netanyahu that “Israel is not a state of all its citizens. Israel is the nation-state of the Jewish people and them alone”,^[7] affirms the state’s commitment to one group over others, reinforcing the findings of the HRW report. Similar divisive sentiments were common in South Africa during apartheid, where “Whites Only” signs were frequently visible.^[8] The report concluded that: “In pursuit of [maintaining Jewish-Israeli control], authorities have dispossessed, confined, forcibly separated, and subjugated Palestinians by virtue of their identity to varying degrees of intensity. In certain areas, these deprivations are so severe that they amount to the crimes against humanity of apartheid and persecution.”^[9]

The detailed and telling report sheds further light into Israeli policies in the Palestinian territories and shows why comparisons to apartheid South Africa are made. Segregation in South Africa was enforced by non-whites being required to carry documents authorising their presence in restricted whites-only areas.^[10]Israel uses checkpoints and a permit system to regulate Palestinian movement between Palestinian-ruled areas to Israel.^[11]

Moreover, a series of Land Acts in South Africa allowed certain residential and business areas in cities and towns to be categorised according to race, with marginalised races not permitted to live, work, or own land there.^[12] These policies set aside more than 80 percent of South Africa’s land for the country’s white population.^[13]Israel routinely denies building permits to Palestinians while allowing construction by Israeli Jews in the same areas.^[14] The Israeli government allows Jewish settlers to take over Palestinian homes^[15] and build hundreds of new ones, while Palestinians have seen their lands taken away. Israelis living in West Bank settlements have the rights and privileges of normal citizens, while Palestinians living in the same area are subject to tight military rule,^[16]being tried in military courts^[17]for certain crimes which, for Jewish Israelis, would be heard in civil court. In short, Israel has created a two-tier system for Palestinians and Israeli settlers that provides greater freedoms to the latter than the former, a disparity that HRW states “amounts to the systematic oppression required for apartheid.”^[18]

Incredibly controversial is Israel’s 2018 “nation state” law, which provides that only Jewish people have the right of self-determination in the country, while side-lining the Arabic population.^[19]This provides a legal basis to pursue policies that favour Jewish Israelis while disenfranchising the Arab population. Similar policies existed in South Africa during apartheid where, for example, land belonging to non-white citizens was routinely taken from them and sold to white South Africans.^[20]The Israeli Law of Return states that Jews anywhere in the world may become citizens of Israel and live there, even if they have no history in the region.^[21] This same privilege is not afforded to the countless Palestinian refugees who were uprooted from their ancestral homes and still live without a permanent home. Even during the Covid-19 pandemic, the disparity was visible. Israel’s vaccination rollout has been among the most successful and advanced in the world. At the same time, the vaccine deployment in the OPT lags far behind.^[22]In light of all this one can see perhaps why HRW reached its conclusion. Any political system that directly and outrightly supports one ethnic/religious group while discriminating against another in the same area would be apartheid according to international definitions.^[23]

Israel continues to deflect criticisms of discriminatory policies in its treatment of the Palestinians, but an increasing number of reports, including the HRW, have sought to uncover the reality of the situation. In January this year, Three Israeli rights group,^[24]including B’Tselem, accused Israel of apartheid, giving credible support to claims that Palestinians have been making for almost 60 years, and which former US President Jimmy Carter made 15 years ago.^[25] In 2002, long before HRW’s report was published, Desmond Tutu, South Africa’s human rights icon, said Israel’s treatment of Palestinians reminded him “of what happened to us Black people in South Africa”,^[26] an observation he has since repeated. More recently, in May 2021, South Africa’s president Cyril Ramaphosa, echoed this observation, remarking that Israel’s actions in Gaza reminded him of apartheid in South Africa.^[27]

Israel rejected the HRW’s report and accused it of being anti-Semitic and anti-Israel, an assertion it has made against numerous findings by multiple independent, international fact-finding groups, as well as the International Criminal Court (ICC) and the United Nations. Accusations like this seek to detract from the factual findings of the report. Israel’s lack of cooperation with the ICC^[28] and strong alliance with the US mean that legal accountability for alleged war crimes remains unlikely.^[29] During efforts to end the South African apartheid, activists were accused of following a communist agenda in order to, similarly, silence any criticism of the state’s discriminatory policies.^[30]

Among prominent critics is Eugene Kontorovich, director at Kohelet, a Jerusalem-based research group, who condemns such findings as “anti-Semitic slander” adding that “once you say ‘apartheid,’ you basically call for the destruction of the regime. Critics of apartheid-era South Africa wanted to replace the regime with a fundamentally different one. So, when you get that into mainstream discourse, you have basically normalised calls for the end of the Israeli state.”^[31]

Regimes change. That is the fundamental nature of a democracy. If the Israeli regime is changed to one that grants equals rights and freedoms to Palestinians, this would simply be proof of democracy in action. Mr. Kontorovich’s assertion that calling Israel an apartheid state calls for its destruction, is not only wrong, but fails to consider that South Africa, a state that ended apartheid after overwhelming international pressure, still exists as a fully functioning state to this day. Calling South Africa an apartheid state did not lead to its destruction, quite the opposite in fact. In the last three decades since the end of apartheid, South Africa has held numerous democratic elections, enjoyed significant press freedom, and has economically flourished, evidenced by a massive growth in GDP. While certain inequalities still persist, the country is miles ahead of where it was just 30 years ago.

Sanctions and international opposition helped end the South African apartheid. The Boycott, Divestment, and Sanctions movement (BDS), inspired by the South African anti-apartheid movement, aims to do the same in Israel, but this strategy has been much less warmly received. As the name implies, this movement, led by the Palestinians, calls for non-violent pressure in the form of economic sanctions, boycotts, and divestments by the international community against Israel to ensure compliance with obligations under international law and provide equal rights to Palestinians.^[32] However, Israel’s established cultural, academic and economic ties with the West^[33] and strong military and defence links with superpowers like the US^[34] mean the BDS movement is unlikely to attain the same success as seen in South Africa.

The election of new Israeli Prime Minister Naftali Bennet, a right-wing ultranationalist with a well-known disdain for Palestinians,^[35] may mean it is now even more unlikely for a viable two-state solution, or even an integrated single-state with equal rights and privileges for Israelis and Palestinians. The former seems unachievable because a Palestinian state, it is claimed by Mr. Bennet, would be a threat to Israeli security and control,^[36]and the latter, because to do so, it is complained, would erode the idea and existence of Israel as a Jewish state, with a minority Jewish population.^[37]

Whether or not allegations that Israel is engaged in crimes against humanity of apartheid and persecution are proved remains to be seen. What is clear is that it is becoming hard to ignore how many of Israel’s policies towards the Palestinian population fit into the definition of apartheid, or their similarities to apartheid South Africa.

[1]‘Apartheid’ Encyclopaedia Britannica (23 July 2020) <https://www.britannica.com/topic/apartheid>

[2] Lori A Allen, ‘It is becoming harder to deny that Israel is an apartheid state’ Al Jazeera (London, 4 May 2021) <https://www.aljazeera.com/opinions/2021/5/4/it-is-becoming-harder-to-deny-that-israel-is-an-apartheid-state>

[3] Julie Bosman ‘Carter Book Stirs Furor With Its View of Israelis’ ‘Apartheid’’ The New York Times (14 December 2006) <https://www.nytimes.com/2006/12/14/books/14cart.html>

[4] ‘A Threshold Crossed – Israeli Authorities and the Crimes of Apartheid and Persecution’ Human Rights Watch (27 April 2021)<https://www.hrw.org/report/2021/04/27/threshold-crossed/israeli-authorities-and-crimes-apartheid-and-persecution>

[5] ibid

[6] ibid

[7] n2

[8] William Claiborne’ Whites Only’ Signs Reappearing In South Africa’ The Washington Post (10 November 1988)

[9] n4

[10] n1

[11] Patrick Kingsley ‘Rights Group Hits Israel With Explosive Charge: Apartheid’New York Times (27 April 2021) <https://www.nytimes.com/2021/04/27/world/middleeast/israel-apartheid-palestinians-hrw.html>

[12] n1

[13] ibid

[14] n4

[15] Secretary General ‘The Question of Palestine’ United Nations (31 August 2015) <https://www.un.org/unispal/document/auto-insert-188778/>

[16] n2

[17] ibid

[18] n4

[19] Peter Beaumont ‘EU leads criticism after Israel passes Jewish ‘nation state’ law’ The Guardian (19 July 2018) <https://www.theguardian.com/world/2018/jul/19/israel-adopts-controversial-jewish-nation-state-law>

[20] Apartheid’ History (3 March 2020) <https://www.history.com/topics/africa/apartheid>

[21] The Law of Return 1950

[22] Josef Federman ‘Israel to Give Some Coronavirus Vaccines to Palestinians’ Bloomberg, AP News (31 January 2021) <https://www.bloomberg.com/news/articles/2021-01-31/israel-to-give-some-coronavirus-vaccines-to-palestinians?sref=am1wYMj6>

[23] n4

[24] n8

[25] n3

[26] n2

[27] Marc Perelman ‘South African president: The situation in Gaza ‘brings back terrible memories of apartheid’’ France24 (19 May 2021) <https://www.france24.com/en/tv-shows/the-interview/20210519-south-african-president-the-situation-in-gaza-brings-back-terrible-memories-of-apartheid>

[28] ‘Israel ‘will not co-operate’ with ICC war crimes investigation’ BBC News (9 April 2021) <https://www.bbc.com/news/world-middle-east-56687437>

[29] Hatem Moussa ‘Why is accountability for alleged war crimes so hard to achieve in the Israel-Palestinian conflict?’ The Conversation (18 May 2021) <https://theconversation.com/why-is-accountability-for-alleged-war-crimes-so-hard-to-achieve-in-the-israel-palestinian-conflict-160864>

[30] Ronnie Kasrils ‘I fought South African apartheid. I see the same brutal policies in Israel’ The Guardian (3 April 2019)<https://www.theguardian.com/commentisfree/2019/apr/03/israel-treatment-palestinians-apartheid-south-africa>

[31] n8

[32] ‘What is BDS?’ BDS <https://bdsmovement.net/what-is-bds>

[33] Dr Elliott Green ‘Assessing the Israel – apartheid South Africa comparison, Part 2’ (18 November 2014) <https://blogs.lse.ac.uk/internationaldevelopment/2014/11/18/assessing-the-israel-apartheid-south-africa-comparison-part-2/>

[34] William Roberts ‘Why is the US unequivocal in its support for Israel?’ Al Jazeera (8 May 2021) <https://www.aljazeera.com/news/2021/5/18/short-answer-why-is-the-united-states-so-pro-israel>

[35] Oliver Holmes ‘Naftali Bennett: Israel’s far-right prime minister in waiting’ The Guardian (Jerusalem, 3 June 2021) <https://www.theguardian.com/world/2021/jun/03/naftali-bennett-israel-far-right-palestinians>

[36] ibid

[37] Benjamin Pogrund ‘Why Israel Is Nothing Like Apartheid South Africa’ The New York Times (31 March 2021) <https://www.nytimes.com/2017/03/31/opinion/why-israel-is-nothing-like-apartheid-south-africa.html>

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Have we failed to give them hope? Implications of the ‘New Plan for Immigration’

Published on 25 Jun 2021 by BPP Human Rights UnitLeave a comment

Paris DiPersico discusses the Home Office’s ‘New Plan for Immigration’ and considers whether proposed measures, penalising asylum seekers and introducing a “one-stop process”, remove safeguards from a system that is already punitive and antagonistic.

On March 24th 2021, the Home Office published its policy statement on a new plan for immigration. The statement puts forth three main aims:

To increase the fairness and effectiveness of the immigration system to better protect and support those genuinely seeking asylum.
To deter illegal entry into the United Kingdom (UK), to break down criminal trafficking networks and protecting those endangered.
To remove more easily those with no right to be in the UK.

In her oral statement to Parliament on 24 March 2021, the Home Secretary, The Rt Hon Priti Patel MP stated that the proposals represented “the most significant overhaul of our asylum system in decades. A new comprehensive, fair but firm, long-term plan…At the heart of our New Plan for Immigration is a simple principle: fairness…our new system will be faster and fairer and will help us better support the most vulnerable…and will fix our broken system”.^[1]

Yet, despite emphasis on this notion of ‘fairness’ almost 200 human rights, refugee, faith and legal organisations have labelled the six week consultation on the proposed changes as “vague, unworkable, cruel and potentially unlawful”.^[2]The plan seeks to introduce tougher criminal offences for those attempting to enter the UK illegally, including increased penalties for illegal entry. Although aimed at disrupting criminal networks, the proposed plan penalises vulnerable people seeking asylum if they arrive in Britain via unauthorised routes; their legal right to claim asylum will be denied, they will be held in warehouse style refugee ‘reception centres’, could be deported to third countries, and will be forced to reapply for protection every 30 months. For those who cannot be removed immediately, their benefits would be stripped, placing them in the No Recourse to Public Funds (NRPF) category. Such measures present a violation of the fundamental rights of the most underrepresented, vulnerable, and marginalised individuals in our society, including the right to private and family life, the right to liberty, and the absolute right against torture, inhuman and degrading treatment. Rights that were recognised directly by both the Court of Appeal in R (Sivasubramaniam) v Wandsworth County Court^[3] and the Supreme Court in R (Cart) v Upper Tribunal.^[4]

The UK is also a party to the 1951 Convention relating to the Status of Refugees (Refugee Convention) and to its 1967 Protocol. Article 31 of the 1951 Convention provides as follows:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
The Contracting States shall not apply to the movements of such refugees’ restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

Of the Refugee Convention, Lord Bingham in the House of Lords observed “three broad humanitarian aims.” First, that contracting states would “afford a safe refuge to those genuinely fleeing their home countries to escape persercution” ensuring such refugees were not returned. Second, “to ensure reasonable treatment of refugees” within the country where refuge is sought and, finally, to prevent imposition of penalties for criminal acts “reasonably or necessarily committed in the course of flight from persecution or threatened persecution.”^[5]

By any reading there seems little, if any, compatibility between the core aims of the Refugee Convention and the new Home Office proposals. The government’s precarious and unfair proposal denies automatic right to asylum, poses risk of removal and increases penalties for refugees arriving in Britain via unauthorised routes. These measures not only amount to a blatant violation of Article 31 but fail, in all respects, to align with the spirit of the Convention.

The Home Office’s proposal further introduces “a new ‘one-stop’ process which will require people to raise all protection related issues upfront and have these considered together and ahead of an appeal hearing where applicable.”^[6]The Home Office will also introduce “new powers that will mean decision makers, including judges, should give minimal weight to evidence that a person brings after they have been through the ‘one-stop’ process, unless there is good reason.”^[7]

Immigration and asylum cases are often highly complex and require emotionally strenuous work. Claimants face many difficulties that include, but are not limited to, language barriers, understanding the legal process and navigating the legal system. Individuals at risk, those who have experienced violence, discrimination and hatred and individuals with mental health issues and/or physical disabilities may find it extremely challenging and difficult to disclose all protection-related issues up front during the ‘one-stop process’. This could result in violation of their right to a fair trial which is protected under Article 6 of the European Convention on Human Rights (ECHR). Moreover, the consultation itself has been branded as “poorly designed” and “inaccessible”, giving no opportunity for people to share their experiences of fleeing persecution or seeking refuge in the UK and is only available in English and Welsh, arguably excluding those who will be most affected by the proposed changes from responding.^[8]

The Home Office states that the new plan aims to “tackle the practice of making multiple and sequential claims and appeals which frequently frustrate removal from the UK”. The fast-track system is proposed to make quicker decisions and tackle meritless claims “which clog up the courts with last minute claims and appeals” but fails to persuade or convince us how this new system “will be faster and fairer and will help us better support the most vulnerable”.^[9] In Lord Chancellor v Detention Action, the court emphasised that “speed and efficiency must not trump justice and fairness.” ^[10]

Chai Patel, legal policy director at the Joint Council for the welfare of immigrants brands the proposals as “radical and dangerous changes to the UK’s refugee protection system, which needs serious considerations” labelling the new plan as “a sham intended to mislead parliament into believing there is merit to plans which will deny safety to people feeling war and persecution.”^[11] In order to address immigration and asylum policy in a way which genuinely protects those at risk, in the words of Tim Noar Hilton, chief executive at Refugee Action: “the government must scrap its proposed changes to refugee policy and work properly with stakeholders to create a system that is fair, effective and compassionate.”^[12]

[1] Home Office, ‘Home Secretary’s statement on the New Plan for Immigration’(Parliament, 24 March 2021) <https://www.gov.uk/government/speeches/home-secretarys-statement-on-the-new-plan-for-immigration>

[2] ‘Sham’: 200 groups criticise UK government consultation on refugee policy <https://www.theguardian.com/world/2021/apr/30/sham-200-groups-criticise-uk-government-consultation-on-refugee-policy> accessed 22 June 2021

[3] (2003) 1 WLR 475.

[4] (2011) UKSC 28.

[5] R v Asfaw [2008] UKHL 31, 9.

[6] Home Office, ‘New Plan for Immigration: policy statement (updated 18 April 2021) <https://www.gov.uk/government/consultations/new-plan-for-immigration/new-plan-for-immigration-policy-statement-accessible>

[7] Ibid.

[8] n2.

[9] Home Office, ‘Home Secretary’s statement on the New Plan for Immigration’(Parliament, 24 March 2021) <https://www.gov.uk/government/speeches/home-secretarys-statement-on-the-new-plan-for-immigration>

[10] (2015) EWCA Civ 840.

[11] n2.

[12] Ibid.

Image credit: Yarl’s Wood Protest (EYE DJ/CC BY-NC-ND 2.0 via Flickr)