Comparing Police Discipline in the US and the UK: Lessons for American Law Enforcement – Part 2

Labour rights, Police and Policing, Scotland, UK, US Politics, USA

This is Part 2 of a two-part blog post by Prof. Paul Clark comparing police discipline in the US and the UK. It identifies aspects of the UK approach to police discipline that could have a positive impact on the discipline process in the US.

Paul F. Clark is Professor and former Director, School of Labor and Employment Relations at Penn State University in the United States.  His research has focused on employment relations, labor unions, and the globalization of labor markets.  His current focus is on police unions and police disciplinary processes in the UK and the US.  He has authored or edited six books and his research has appeared in the leading scholarly journals in industrial and labor relations, applied psychology, and international labor issues.  He has served as a visiting professor at universities in Scotland, Australia, and New Zealand and is currently President-elect of the U.S.-based Labor and Employment Relations Association.

 

A preliminary examination of the UK police complaint and discipline processes indicates that these processes differ significantly from, and work more effectively than, those in the US.  This suggests that there may be elements of the British system of police discipline that could be adapted and adopted by American law enforcement.

One of the key differences between police discipline processes in the UK and the US that could have a positive impact on the US process is the UK’s emphasis on learning versus punishment.  In 2020, an in-depth analysis of the police discipline and complaint process in England and Wales led to major reforms.  One of the significant changes made was to establish “a culture of learning” as a key part of the discipline process. Toward this end, police supervisors are directed to divert incidents that do not constitute misconduct into either “an unsatisfactory performance procedure” or “a reflective practice review,” both of which help police officers learn from their mistakes and remain on the force.

The emphasis on learning and correcting behavior that UK law enforcement has adopted in recent years is an approach that American police unions and police departments, should consider.  In the long run, working to create a culture of learning in US police forces would have many benefits.

Photo bt King’s Church International on Unsplash

Another mechanism that US law enforcement should consider to build public confidence is independent oversight boards.  These agencies play a much bigger role in policing in the UK than in the US.  In England and Wales, the Independent Office for Police Conduct (IOPC) oversees complaints about police misconduct.  The Police Investigations and Review Commissioner plays this role in Scotland and the Office of Ombudsmen does so in Northern Ireland.  These processes are clearly works in progress and they receive mixed reviews from police federations, and sometimes from the public, but to ensure that police do not investigate police behind closed doors, these agencies are necessary.

There has been a movement in recent years in the US to establish such bodies.  However, only about ten percent of police forces have done so and they are mostly in urban areas with large police forces.  And their performance has been mixed.  Still, independent oversight of police forces appears to be a necessity if public confidence in police is to be increased.

US law enforcement also needs to adopt a national database to identify police officers who have been fired for misconduct or incompetence, like the ones that exists in the UK.  Currently, in the US only a handful of states keep such a list.  Unfortunately, in many states officers fired by one police department are regularly hired by police forces within that state or in other states. A national list would identify officers fired for cause across the country.  Any officer appearing on this list would be banned from being hired by any other police force.

Finally, the extremely decentralized nature of the American law enforcement system means that police disciplinary systems are established by each separate police force.  In the UK, the police disciplinary processes are national in scope.  This means that there is one disciplinary process that covers all police in England and Wales, one that covers all police in Scotland, and one that covers police in Northern Ireland.  These national processes bring consistency to police discipline in each country.

With 18,000 police forces in the US (compared to only 43 in England and Wales, and one each in Scotland and Northern Ireland), there are essentially 18,000 different discipline processes.  This is highly problematic.  It means that reforms to the police discipline system in the US cannot be implemented on a national basis.  However, individual states do have the authority to order changes for the police forces in their state.  The widespread reform of police discipline processes in the US would most effectively be accomplished on a state-by-state basis.  Establishing a consistent police discipline process across all fifty states is unrealistic. Yet, it might be possible to get a significant number of states to adopt such a process.  This would be an important step towards improving the effectiveness of American police discipline processes.

, ,

Comparing Police Discipline in the US and the UK: Lessons for American Law Enforcement – Part 1

American law enforcement, Conflict, Labour rights, Police and Policing, Punishment, Security, UK, US Politics, USA

This post is the first of a two-part blog by Prof. Paul Clark comparing police discipline in the US and the UK. Part I focuses on the relevant similitudes and differences between police discipline in the two countries and highlights the connections between police trade unions and police discipline.

Paul F. Clark is Professor and former Director, School of Labor and Employment Relations at Penn State University in the United States.  His research has focused on employment relations, labor unions, and the globalization of labor markets.  His current focus is on police unions and police disciplinary processes in the UK and the US.  He has authored or edited six books and his research has appeared in the leading scholarly journals in industrial and labor relations, applied psychology, and international labor issues.  He has served as a visiting professor at universities in Scotland, Australia, and New Zealand and is currently President-elect of the U.S.-based Labor and Employment Relations Association.

 

Recent high-profile cases of police misconduct in the U.S. have heightened racial tensions and increased public awareness of systematic problems in American law enforcement.  The deaths of George Floyd and Breonna Taylor at the hands of Minneapolis and Louisville police in 2020 were met by widespread protest around the world and for calls for police reform.

Photo by Gayatari Malhotra on Unsplash

The fact that Derek Chauvin, the officer who knelt on Floyd’s neck causing his death, had 18 complaints regarding serious misconduct filed against him since 2001 and was still working as a police officer, has contributed to the impression that American police are not being held accountable for their actions.

In the wake of these concerns, the movement to reform American policing has gained momentum.  This reform movement is looking at all aspects of American law enforcement including oversight, funding, training, use of force, hiring, pay, and recruitment.  However, one important element that has received minimal consideration in discussions about reform are the processes for disciplining police officers accused of misconduct.

While the British public has concerns about police misconduct, police are viewed more favorably in the UK than in the US.  In surveys conducted in 2020, 74 percent of people aged 16 and over in England and Wales reported having confidence in their local police, while only 48 percent of Americans held that view.

A preliminary examination of the UK police complaint and discipline processes indicates that these processes differ significantly from, and work more effectively than, those in the US.  This suggests that there may be elements of the British system of police discipline that could be adapted and adopted by American law enforcement.

To learn more about the UK police complaint and discipline processes, I spent the spring of 2022 in residence at the University of Edinburgh’s Global Justice Academy and the University of Oxford Law School.  Because England and Wales, Scotland, and Northern Ireland each have their own systems of law enforcement, they each have their own police complaint and discipline processes.  In the course of my work, I gathered information about the three processes and conducted 37 interviews with parties involved in these processes—police forces, police federations representing officers, independent public oversight agencies, and neutral hearing officers.  An analysis of the data collected identified a few elements that differ significantly from the discipline processes in the US and that, in my view, have potential to improve what is now, in many cases, a problematic process in the US.

Police disciplinary processes in the UK and the US have some elements in common.  Disciplinary processes are utilized to deal with both public complaints about officer conduct and internal charges made by police colleagues or supervisors.  Public or internal charges can result in an investigation into an officer’s conduct.  The results of the investigation are considered by police administrators and the charged officer (and the officer’s representatives) are given opportunities to respond.  If the charges are not resolved, the case can go before a neutral third party who renders a decision.

Photo by King’s Church International on Unsplash

One significant difference between the US and UK systems of law enforcement is that the majority of police officers in the US belong to trade unions (57.5 percent in 2019) that have the right to collective bargaining. Some of these police unions, mostly in large cities, have used their bargaining power to negotiate contract clauses that make it harder to discipline their members. These unions also generally take a more adversarial approach when advocating for their members in the discipline process than their counterparts in the UK.  For these unions, “defending the member at all costs” is the priority, even when the officer or officers involved have engaged in problematic behavior.

A recent analysis found that in 624 police discharge cases heard by arbitrators (neutral third parties) nationwide between 2006 and 2020, police officers were reinstated to their jobs 52 percent of the time. During the same period, in Minneapolis, in six of eight cases involving the discharge of police officers, the charges were overturned, and the officers returned to their jobs.

In the UK, police are not permitted to be represented by a trade union.  Instead, officers at all ranks are represented by professional associations that advocate for the good and welfare of their members (for example, constables, sergeants, and inspectors in England and Wales are represented by the Police Federation of England and Wales), but do not engage in collective bargaining.  While these federations and associations fight for their members when they feel they have been treated unfairly, they also tend to look more broadly at what is good for the policing profession and for the community.  In some instances, they may put the interests of the profession and the community ahead of those of an individual member.  For example, they might try to counsel a problematic officer into resigning from the force, rather than fight to get their job back.  One long-serving police federation representative told me he thought “he might be responsible for getting rid of more bad cops than the police force had.”

Certainly, some police unions in the US do what they can to make sure that officers not suited to policing do not continue to serve.  But in some notable cases where unions have won reinstatement for officers accused of excess force, racism, or corruption, these officers have continued to engage in misconduct. If they want to increase the public’s confidence in their members, the more aggressive police unions need to moderate their approach to representing their members and emphasize what is good for the profession and the community.

In addition to moderating their defense of “bad cops,” some US police unions need to consider rethinking existing contract language that makes it difficult for police departments to discipline officers (while still ensuring that they receive appropriate due process).  Both changes would have a positive impact on how the public views the police.

Finally, it should be noted that an additional reason that police officers fired for misconduct in the US (and sometimes in the UK) are put back on the job is that police management sometimes does a poor job of investigating and building discipline cases against officers.  Bringing a weak case before a neutral third party greatly increases the chances that a union will win the case and enable an undeserving officer to retain their job.  Where this happens, police managers need to improve their performance.

Continue reading part 2 of this two-part blog.

 

 

,

Reflections on a Conversation with Mohamedou Ould Salahi

Africa, Enforced Disappearances, Guantanamo, Human rights, Terrorism, Torture, UNCAT, USA

On 14 March 2022, the Global Justice Academy hosted a conversation between Mohamedou Ould Salhi, author of the best-seller Guantánamo Diary, and Dr Kasey McCall-Smith, director of the Global Justice Academy. The event was part of Mohamedou’s United Kingdom tour to talk about his experiences and what happens in the aftermath of torture and arbitrary detention. In the conversation, Mohamedou and Dr McCall-Smith, together with the audience’s participation, reflected on the post-9/11 human rights legal and political landscape.

Mohamedou was born in Mauritania, and as a young man studied and worked in Germany and Canada before moving back to Mauritania in 2000. Between 2000 and 2001, he was three times detained at the behest of the United States, questioned about the so-called “Millennium Plot”, and later released. However, in November 2001, Mohamedou was arbitrarily arrested in Mauritania, later transferred to Jordan and then Guantánamo Bay. Mohamedou eventually spent 15 years arbitrarily detained and was subjected to multiple forms of torture and ill-treatment under the ‘enhanced interrogation programme’. He was ultimately released without any charge or any form of redress by the US.

In his best-selling book, Guantánamo Diary, Mohamedou tells a Mauritanian proverb about a man who was afraid of a rooster. As the story goes, a psychiatrist asks this man why he is afraid of a rooster, an animal considerably smaller than human beings. The man replies that the rooster thinks he is corn. The psychiatrist says that the man is not corn, but a man indeed, so he should not be afraid of the rooster. Then, the man answers that he knows he is not a corn, but the rooster does not, which is why he is afraid. Unfortunately, this is the allegoric story about the many US ‘War on Terror’ detainees. Mohamedou and many other detainees tried for years to convince the US government that they were not terrorists just because they filled the ‘terrorist boxes’. In other words, they tried to convince the rooster they were not corn. Without access to fundamental human rights it was an almost insumountable task.

The event’s central theme was the conflict between national security and human rights. Through the ‘War on Terror’, led by the US after the events of 9/11, many men were arbitrarily incarcerated and tortured in order to gather information with the aim of protecting national security. These arbitrarily detained men, most of them Muslim, were deprived of their basic human rights, including the prohibition of torture and access to justice. The post-9/11 era is marked by states’ overwhelming concern for national security over human rights. Consequently, people are subjected to many forms of human rights infringements. Such abuses vary significantly from the most imperceptible and sometimes even consented breaches, such as infringements to the right to privacy and or access information, to the most gruesome violations as experienced and narrated by Mohamedou, including torture and ill-treatment, arbitrary arrest, inaccessibility to justice, and presumption of guilt instead of innocence.

One of the most shocking observations Mohamedou shared was the absence of justice and the rule of law in Guantánamo Bay. After years of being incarcerated without criminal charge or prosecution, Mohamedou petitioned for habeas corpus and was granted a release order in 2010. However, Mohamedou was only released in 2016. The six-year gap between the court order and its compliance is the result of the US judicial system’s lack of power in the Guantánamo Bay detention facilities. Although judges may grant habeas corpus orders, the judicial system does not have the power to enforce them. According to Dr McCall-Smith, the unreasonable amount of time it took for Mohamedou’s release indicates the disconnect between the US justice system and the organs that wield power in the context of national security. Even after his release, Mohamedou still faces the shadows of his arbitrary detention as the US keeps him blacklisted.

Guantánamo Bay must be closed.

In closing the event, Mohamedou and McCall-Smith discussed possible ways to move forward after the horrifying human rights violations perpetrated in the ‘War on Terror’. First, McCall-Smith and Mohamedou agreed that Guantánamo Bay must be closed. Of the 780 men detained in Guantánamo Bay, 38 men are currently imprisoned there, and less than 20 men have been charged with a crime, let alone convicted. The Obama administration promised to close Guantánamo, but only the US Congress has the power to do so. Thus, in this particular situation, McCall-Smith pointed out that the US ‘checks and balances’ system worked against the rule of law. Second, Mohamedou highlighted the necessity to hold accountable those who violated international law and the prohibition on torture. Without accountability, there is no possibility of democracy as the people become powerless in the face of the government. Finally, Mohamedou stressed the importance of forgiveness and reconciliation through actions. More than a beautiful thought, this idea entails states’ responsibility to reflect and reconsider the undermining of human rights as the formula to guarantee national security. Mohamedou’s experiences and scholarly debates have both shown that the suppression and outright violation of human rights has not guaranteed the security of peoples or states.

The recording of the event can be viewed here.

This post is authored by Helena de Oliveira Augusto. Helena is currently undertaking the Human Rights LLM at the University of Edinburgh. Helena is from Brazil, where she completed a Bachelor of Laws degree at the Pontifical Catholic University of São Paulo.

, , , , , ,

Reflections on Your Human Rights: Know them. Engage them. Defend them.

Constitutional Change, Democracy, ECHR, Engagement, Freedom of Expression, Global Justice Academy, Human rights, Human Rights Act, UK

On 23 and 24 February 2022, the Global Justice Academy, together with the Strathclyde Centre for the Study of Human Rights Law and Newcastle Forum for Human Rights and Social Justice, and other partners in the Northern UK Human Rights Network, held two webinars that gathered human rights experts to provide insights to the questions set out in the Ministry of Justice Human Rights Act Reform Consultation. The idea behind the webinars was to help the public — especially those who are not experts but are interested in protecting human rights — to respond to the Consultation, which puts forward ideas contrary to the Human Rights Act and may have devastating effects on human rights.

This GJA blog post presents the common themes and shared concerns that get to the heart of why experts find the Consultation proposals problematic and regressive. The post contains four parts, each focused on a central issue raised by the expert panellists.

The mismatches between the IHRAR and the Consultation

In 2019, the Conservative Party claimed the necessity to update the Human Rights Act (HRA) to modern times. The Secretary of Justice then set the terms for the Independent Human Rights Act Review (IHRAR), which commenced in December 2020. The IHRAR examined independent expert opinions and many submissions from civil society, ultimately completing its work in October 2021. The IHRAR recommended some changes but overall concluded that the HRA led to positive outcomes to human rights protection in the UK. However, the Ministry of Justice only published the IHRAR report in December 2021 together with the Consultation document, which no longer proposed to update the HRA but rather substitute it for a ‘Modern Bill of Rights’. Human rights experts are sceptical of the government’s claims to legitimacy of the Consultation as a follow on to the expert panel. Experts understand that the Consultation does not follow the IHRAR as it ignored several IHRAR recommendations and introduced a series of new issues that will significantly diminish human rights protection.

 

Priority of freedom of expression when in conflict with the right to respect for private and family life

One of the Consultation proposals is to create a legal provision to direct courts to prioritise the right to freedom of expression when in conflict with the right to respect for private and family life. The Consultation outlines that the European Court of Human Rights (or Strasbourg Court) has shown priority to privacy over freedom of expression, which has had a negative repercussion on the protection of rights related to the press. However, human rights experts disagree with this observation. Experts concluded that both the UK Supreme Court and the Strasbourg Court treat freedom of expression and the right to privacy equally when in conflict, without generally prioritising one over the other. The current provision of article 10 of the European Convention on Human Rights (ECHR), which contains the right to freedom of expression, has been effective in protecting journalists and their sources. Although it is important to widen the protection of rights related to the press, the way to do so is to enhance the HRA provisions instead of substituting them.

 

The permission stage and access to justice

One central issue in the Consultation is the belief that ‘frivolous or spurious’ human rights claims, which do not ‘merit court time and public resources’, has undermined public confidence in human rights.[1] The Consultation aims to create a permission stage for human rights claims that requires demonstration of ‘significant disadvantage’, or, exceptionally, a matter of ‘overriding public importance’, for human rights claims to be brought before UK courts.[2] Human rights experts strongly disagree with adding a permission stage. Article 34 of the Convention, incorporated into the UK by the HRA, together with extensive legal texts, have already established who is a victim and who can be a human rights claimant. Further requirements for initiating human rights actions would restrict judicial protection of rights. The permission stage proposal closely relates to the (deeply) problematic question 10 of the Consultation, which states that courts should only focus on ‘genuine human rights abuses’, perpetuating the false perception that many human rights claims are not genuine.[3] Human rights experts fear that the vague and potentially discriminatory ‘genuine’ standard for human rights abuse and the unnecessary permission stage will diminish human rights protections, especially for those in vulnerable situations.

 

The mischaracterised relationship between the UK Supreme Court and the European Court of Human Rights

A major theme throughout the Consultation — which some experts believe is the central political motivation leading to the Consultation— is the relationship between the UK Supreme Court and the Strasbourg Court. The Consultation presumes that the Strasbourg Court has been improperly intervening in the UK jurisdiction. On the basis of this unsupported presumption, the Consultation proposals point to the government’s desire to distance UK law from the Strasbourg Court. Nevertheless, the experts highlighted that the government’s desired distance between jurisdictions, together with the regressive protection of rights, will backfire. The Consultation was clear that the UK will not withdraw from the Convention or the Strasbourg Court. Thus, if human rights claimants are unsuccessful in bringing their cases to UK courts because their claims are not considered ‘genuine’, they can still go to the Strasbourg Court for their claims to be heard. This possible scenario would weaken UK human rights protections as domestic courts would not have the first say in interpreting ECHR cases in the UK though the UK would remain bound to give effect to eventual Strasbourg’s judgments that find the UK in breach of the Convention rights.

Ultimately, the webinar offered insight and assistance to people developing their responses to the Ministry of Justice Consultation. Although embedded in a language of protection of rights, the Consultation’s proposals will produce harmful effects for human rights in reality. Therefore, the webinar highlighted that it is important that as many people as possible engage and respond to the Consultation until its deadline on 8 March 2022 in order to oppose Consultation’s proposals and fight against the undermining of human rights.

 

The Global Justice Academy’s response to the consultation can be found here:  March 2022 – GJA – Consultation Response – HRA Reform

This post is authored by Helena de Oliveira Augusto. Helena is currently undertaking the Human Rights LLM at the University of Edinburgh. Helena is from Brazil, where she completed a Bachelor of Laws degree at the Pontifical Catholic University of São Paulo.

 

 

[1] Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights – A consultation to reform the Human Rights Act 1998, available at <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1040409/human-rights-reform-consultation.pdf> accessed at 27 February 2022, p. 65

[2] Ibid p. 65

[3] Ibid p. 66

, ,

Your Human Rights: Know them. Engage them. Defend them

Constitutional Change, Constitutional Law, ECHR, Human rights, Human Rights Act, Knowledge Exchange, Law and Legal, Uncategorized, United Kingdom

On 23 and 24 February, the Global Justice Academy (GJA), Strathclyde Centre for the Study of Human Rights Law and Newcastle Forum for Human Rights and Social Justice, along with other partners in the Northern UK Human Rights Network, hosted a sandpit webinar on responding to the Ministry of Justice Human Rights Act Reform Consultation. The events brought together experts across public law, international law and human rights to offer concise insight on the key issues raised by the Ministry of Justice consultation on human rights reform.

 

 

Human rights experts’ preliminary views of the consultation paper are that the UK government aims to dismantle important human rights protections. The events were designed to assist individuals with different levels of engagement with human rights to distil the main legal tensions presented in the consultation paper and respond to the questions posed therein. The underpinning purpose is to assist those who have little time or experience responding to government consultations to develop their own responses by the consultation deadline of 8 March 2022.

 

Speakers included:

  • Ed Bates, Leicester University
  • Helen Fenwick, Durham University
  • Elisenda Casanas Adam, Univeristy of Edinburgh
  • Hélène Tyrrell ,Newcastle University
  • Conall Mallory, Newcastle University
  • Lynsey Mitchell, University of Strathclyde
  • Lewis Graham, Wadham College, Oxford University
  • Dimitrios Kagiaros, Durham University
  • Nicole Busby, University of Glasgow
  • Elizabeth O’Loughlin, Durham University
  • Douglas Jack, University of Strathclyde
  • Alison Seaman, University of Edinburgh

The recording of day 2 can be found HERE.

If you would like to develop your own response using the working document developed by the speakers and other contributing colleagues, it can be accessed here: March 2022 – Consultation Response – Mod Bill of HR – Shareable. We encourage you to build on our work and add your own thoughts. In a democratic society it is essential that we use our voices to let the government know our views.

The Human Rights Act has protected the people of the UK for two decades. Use your voice to let the Ministry of Justice know that we will not give it up without a fight.

Useful documents:

  • Ministry of Justice, Human Rights Act Reform: A Modern Bill of Human Rights, consultation paper
  • Independent Human Rights Act Review, Final Report
  • Joint statement, Amnesty International Scotland, the Human Rights Consortium Scotland, JustRight Scotland, Making Rights Real, and the Scottish Human Rights Commission
  • Scottish Government Response to consultation paper
, , , , ,

AHRI Statement on the Russian Aggression against Ukraine

Conflict, Eastern Europe, Human rights, ICCPR, International Law, Russian Federation, Security, Ukraine, UN

The Secretariat for the Association of Human Rights Institutes (AHRI), hosted by the Global Justice Academy (GJA) and Strathclyde Centre for the Study of Human Rights Law, along with the full AHRI Executive Committee, today published its statement on the Russian Federation’s violations of fundamental international law, including human rights law, and the danger it poses to the post-World War II peace and security architecture.

The Russian Federation’s invasion of sovereign Ukrainian territory is a clear violation of international law and endangers the post-World War II peace architecture that has prevailed over Europe these last seven decades.

The Russian Federation is bound by seven of the core UN human rights treaties as well as the European Convention on Human Rights. We recall the position of the Human Rights Committee that States parties of the International Covenant on Civil and Political Rights who are engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto the right to life as protected by Article 6 of the Covenant. Each step it takes in Ukraine negates its commitment to respect and protect the rights of civilians in Ukraine and those in Russia who are unable to safely voice their opposition to their government. This unprecedented use of force and blatant breach of the UN Charter, the Charter of Paris, and the Helsinki Final Act brings suffering and misery to Ukraine and its people.

As the largest global network of human rights research institutes, AHRI stands together with its colleagues, students and friends in the Ukraine and those in Russia who have been intimidated and forced to remain silent in the face of Russia’s acts of aggression.

Photo of protestors holding Ukraine flags

Photo by: Beth LaBerge

Read the full statement here: AHRI Statement on Russian Aggression against Ukraine

, , , , , ,

Interpretive Convergence at the European Court of Human Rights: Strength in numbers or a cause for concern

Case Law, ECHR, Europe, Global Justice Academy, Human rights, International Law, Law and Legal, Uncategorized


On 25 January, the Global Justice Academy hosted its first event of the new year, ‘Interpretive Convergence at the European Court of Human Rights: Strength in numbers or a cause for concern?’. In this seminar, Dr Conall Mallory, Senior Lecturer at the University of Newcastle School of Law, presented his current research on the voting patterns of the judges within the European Court of Human Rights (ECtHR). In particular, his research scrutinizes judgments of the ECtHR that seem to often be unanimous with infrequent dissents. Drawing on extensive quantitative data analysis he furthermore explores potential wide-ranging implications on the authority of the court, the cohesion of Convention rights and the credibility of the judges.

It is widely acknowledged that the provisions of the European Convention on Human Rights (ECHR) are peppered with grey language that requires the judges to interpret the Convention’s specifications. The fact that the 17 grand chamber judges, deriving from various cultural, legal, educational, professional and linguistic backgrounds unanimously agree on the interpretation of highly contentious human rights provisions, motivated Dr Mallory to further investigate the judges’ convergence. In the two ECtHR judgments Banković v Belgium and Al-Skeini v United Kingdom which were both concerned with the extraterritorial application of human rights law, the Court in both cases voted unanimously. However, the second case substantially deviated from the principles set out in its previous judgment.

Analysing approximately 400 Grand Chamber judgments between 1998 and 2021, Dr Mallory considered each judge’s individual vote on individual issues. He found that almost every time there was coherence across the judges’ votes. The judges took differing stances in only 10% of the votes on individual questions on whether a Member State had violated an article of the Convention.

Image credit: ECHR

Scholars before Dr Mallory have examined the motivation and incentives behind judges’ decision-making process in the courtroom. These previous studies revealed that judges tend to vote strategically, whether for individual benefits, to embed personal ideologies in judgments, or to pursue broader goals serving stakeholders. However, Dr Mallory’s research is focused more on the general legal culture of the Court and the implications for the Court as a whole. He suggests that by predominantly voting unanimously the judges aim to seek sociological legitimacy to remain a credible force in the European human rights adjudication. Contrary to normative and legal legitimacy, sociological legitimacy is concerned with the external perception of the court. In order to secure its authoritative and influential status the court attempts to project legitimacy in a manner that is compatible with the objectives of stakeholders.

In international law, sociological legitimacy is characterized by judicial constraint, consistency, coherence, and fair and unbiased decision making. The convergence of the judges voting pattern in Dr Mallory’s data implies that the court’s strategy is to adhere to those standards through voting in agreement. Notably, Dr Mallory was also able to identify voting patterns regarding the affected context of the violation. Namely, the Court disagrees more when voting on potential violations of the right to privacy and freedom of expression.

Dr Mallory concluded his talk by addressing the question whether this interpretative convergence is a cause for concern. In his opinion, the findings are not as alarming as one might think at the first glance. However, the voting patterns may suggest a sense of group thinking in the courtroom which may lead judges to develop a personal aversion for dissenting. This should be considered seriously, as the Court’s apparent strategy in striving for sociological legitimacy through convergent voting may create cascade conformity – meaning that judges who would normally disagree abandon their conviction and follow suit with the other judges. Returning to the initial consideration of the divergent rulings in Banković v Belgium and Al-Skeini v United Kingdom, Dr Mallory observed that the main problem is the fact that the court, depending on the composition of judges, may deviate so fundamentally in its judgments that it will fail to offer reliability and consistency.

 

 

This post was written by Juliane Müller. Juliane is currently reading the LLM in International Law at the University of Edinburgh. She is from Germany, where she completed her LLM in Law at the University of Mannheim. Juliane is also an Ambassador for the Global Justice Academy.

, , , , ,

Free Speech Protection for ‘Public Watchdogs’ in the European Court of Human Rights

Eastern Europe, ECHR, Freedom of Expression, Global Justice Academy, Human rights, Hungary, Newspost

For the second Global Justice Academy event of the current academic semester, Dr Dimitrios Kagiaros, Assistant Professor in Public Law and Human Rights at Durham Law School, presented his current research exploring the fundamental principles of freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). In particular, his work scrutinizes the meaning of the term ‘public watchdog’, which is a term applied to certain speakers (eg the press) who carry out the function of keeping the public informed on matters of public interest. The European Court of Human Rights offers such speakers added protection under the Article 10 framework.

Until recently, the courts identified only the press and NGO’s as those who would be eligible for this protected status, but after a 2016 Grand Chamber decision in Magyar Helsinki Bizottság v Hungary the status was further extended to academics, authors of public literature, bloggers and popular social media users. In this case, the claimant was an NGO who was denied official information from the state police and challenged this under Article 10 of the ECHR. Dr Kagiaros explained what this extension of watchdog status means for rights and duties attributed to not only speakers, but also to the public who benefits from access to information and the state in terms of its obligations towards these public watchdogs.

According to the Court’s case law on public watchdogs and the Magyar Helsinki Bizottság ruling, public watchdog status creates a negative obligation on the state to refrain from taking any action which would obstruct the watchdog of carrying out its function. It also includes positive obligations on the state to adopt a specific legal framework to protect public watchdogs and also to release official information to them, under circumstances, following a request . The decision also clarified that Article 10 places duties on public watchdogs to act responsibly when disseminating information which could be in the public interest. Increasingly, these duties are attributed to actors such as bloggers and popular social media users which Kagiaros argues that in today’s social media culture is too broad of a concept to understand who exactly would be eligible for public watchdog protection and also who, as rights-bearers, should be obliged to fulfil certain duties when exercising their right to free speech. Kagiaros says these legal obligations and broadly identified eligible actors must be better specified. To that end, he suggests that rather than limiting the protection offered to public watchdogs to specific groups (eg, academics, journalists, NGOs) the Court should carry out a functional test when presented with a case relating to speakers disseminating information in the public interest.

This research is particularly relevant within today’s social media climate and the frequent use of mobile phones to capture or record instances of everyday state injustice, like police brutality. Social media platforms have become an accessible space for receiving information and imparting information, which means determining who is a mere ‘ordinary speaker’ or a ‘public watchdog’ is becoming more complex. Along with this complexity is the matter of prioritising speech and how and what the courts consider information which is of public concern. Kagiaros emphasises the importance of protecting the act of imparting information which is of public interest as this is a prerequisite for a well-functioning democracy. These considerations become even more urgent in the context of transparency when dealing with matters such as climate change or interference with elections.

Kagiaros’ lecture points to the important role played by certain public and private actors to draw attention to public wrongdoings, particularly of public officials, and the need to protect those who come forward with this information that is important to enable meaningful democratic participation. As explained by the court, Article 10 of the ECHR is the bedrock of democracy. So, in order to protect the person’s right to freedom of speech and the public’s right to receive information, we must ensure an effective free speech legal framework to protect those who impart information of general concern.

 

 

Photo of Judi MartinThis news item was written by Judi Martin. Judi is currently reading the LLM in Human Rights at the University of Edinburgh. She is from Ireland where she completed her BA in History at Trinity College Dublin.

 

, , , ,

Reflections on UN Special Procedures

Asia, Blog, Global Justice Academy, Human rights, UN

On 4 November 2021, the Global Justice Academy together with the Edinburgh Centre for Global and International Law hosted their first in-person seminar for the 2021-22 academic year at Edinburgh Law School. Professor Rhona K.M. Smith, who served two three-year terms as UN Special Rapporteur on Human Rights and Cambodia, engaged the audience with her reflections on UN Special Procedures. She is a Professor of International Human Rights and was head of Newcastle Law School at Newcastle University from 2016 to 2020.

Photo of Rhona Smith

UN human rights envoy Rhona Smith holds a press conference at the conclusion of her mission to the Kingdom yesterday. KT/Khem Sovannara

To ground her reflections, she opened with an overview on the Special Procedures of the Human Rights Council, and the distinctions between country and thematic mandates. She took the audience through the procedures for appointing the mandate holders and gave insight into gender and geographical balances and imbalances. Many in the audience were shocked to hear about the amount of time a UN Special Rapporteur dedicates to their mandate and particularly in light of the fact it is an unpaid position. Prof Smith critically reflected on the reasons given by the UN Human Rights Council for maintaining the unremunerated status of these roles. The Human Rights Council asserts that this gives independence to the experts, however, Prof Smith recognized that, in reality, not all experts or potential experts could afford this privilege. Ultimately, she said ‘you need money to live’. This subject stimulated a lively discussion later in the session.

The core of Prof Smith’s discussion focused on her behind-the-scenes experiences as a Special Rapporteur. She elaborated the three main roles of UN Special Procedures: advising, monitoring and reporting. Each of these roles serves a specific purpose in relation to fulfilling the mandate and each is enabled or limited in direct relation to the resources allocated to facilitate the work.

Photo of Cambodian Child

The Office of the United Nations High Commissioner for Human Rights (OHCHR) plays a fundamental role is supporting the UN Special Procedures mandates. Prior to the Covid-19 outbreak, Prof Smith travelled on missions to Cambodia twice a year and reinforced the importance of communicating with the country through the OHCHR. Security measures were of upmost importance as every UN Special Procedure faces common death threats and other harassment. During missions, Prof Smith was able to gather information on the ground and meet with high-level government actors in order to develop a multilayered picture of human rights in Cambodia. She reflected on how she could make the most out of these visits because she knew the country already since she had lived there before being appointed to the UN mandate. During these meetings, she highlighted situations that would entail human rights violations, and suggested concrete actions that State actors could adopt to protect, respect and fulfil the human rights of people living in Cambodia.

In the end, Prof Smith reinforced that being a UN Special Procedure was both ‘a huge honour and an amazing challenge’. On the one side, she was able to deepen her knowledge of human rights in practice and steer the improvement of the human rights for Cambodians. On the other, she faced the challenge of becoming a public figure in Cambodia and the risks associated with that publicity.

In closing the event, Prof Smith narrated a day in the shoes of a UN Special Procedure during a mission and reflected on how her experience contributed to her human rights teaching. Her frankness and honesty helped the audience understand what it means to be a UN Special Rapporteur. While there are clearly challenges, the rewards in assuming such a role within the UN, she demonstrated the practical importance that UN Special Procedures play in advancing the global protection, promotion and respect for human rights.

 

 

This post was written by Valentina Rioseco Vallejos. Valentina is a Chilean lawyer who holds an LLM in Human Rights from the University of Edinburgh. She is currently studying a PhD in Law, focused on incorporating a human rights approach to irregular migration. Valentina is a Research Assistant for the Global Justice Academy.

 

, , , ,

The women left behind. Long-term effects of enforced disappearances on Tamil women in Sri Lanka

Enforced Disappearances, Gender, ICCPR, ICESCR, Sri Lanka, Tamil Women, Transitional Justice

This is the fifth blog in a series written by LLM students on the Human (In)Security course at Edinburgh Law School. This series celebrates the top five blogs selected in a class competition. This blog is by Caroline Walka. Caroline is currently reading the LLM in International Law at the University of Edinburgh. She is from Germany, where she studied law at the Freie Universität.

The women left behind: Long-term effects of enforced disappearances on Tamil women in Sri Lanka

People around the world celebrate Valentine’s Day on the 14th of February – for the Tamil population of Sri Lanka, the 14thof February has a different name and meaning. On “Missing Lovers Day”, they instead celebrate their loved ones who forcibly disappeared during the civil war or its aftermath, and whose fates remain unknown today.

Background

The civil war in Sri Lanka occurred from 1983 until 2009 between the Sinhalese dominated government and the Liberation Tigers of Tamil Eelam (LTTE). The LTTE fought for an independent state for the supressed Tamil minority in Sri Lanka. After almost 30 years of fighting with only a few periods of cease-fire, the UN estimates the conflict caused around 100.000 casualties, with around 40.000 Tamils killed in the final months of the war alone[1]. The fighting was characterised by human rights violations and potential war crimes on both sides, including unlawful killings, torture and the recruitment of child soldiers.[2] However, one violation has affected and still affects more people than any other: The former Sri Lankan government has acknowledged that about 65.000 people have been victims of enforced disappearances from the eighties until today. Amnesty International even estimates it is up to 100.000 people.[3] While some of these were participants in a Marxist uprising in the late eighties, most of the victims are Tamils that were suspected of connection to the LTTE.[4]The majority remain missing or have been declared dead.

Enforced disappearances and human rights

Enforced disappearances are “the governmental practice of eliminating political dissidents while denying any responsibility or knowledge thereof”[5]. Statistically, between 70% and 94% of victims are male. The rights of these men to liberty and security (Art. 9 ICCPR), fair trial (Art. 14 ICCPR), and more, are often violated as a short-term effect.[6]

We do not accept OMP!

Photo from https://www.instagram.com/streetsoftamileelam/

However, research in recent years has shown that it is the women left behind who are suffering the long-term consequences, on-going violations of their human rights long after their husbands disappear.

Tamil men are traditionally assigned the role of the breadwinner, while women take care of the household and children. Consequently, when a Tamil man forcibly disappears, the woman has no choice but to take over and make money, although that is frowned upon by society. For many women, this also means a descent into poverty.

Often the family’s assets – the house, bank accounts etc. – are listed under the man’s name. In order to gain access to these and potential claims to a pension, wives have to let their husband be declared dead, even though they might face backlash for “giving up” on their spouse.

In addition to that, the constant stress caused by the uncertainty about the fate of their loved one can lead these women to suffer PTSD, depression and other mental health issues.

Finally, women living without a man are statistically more often exposed to violence, especially sexual violence. In order to protect themselves and return to a more stable position, the women can remarry. However, this is frowned upon in Tamil society. Therefore, a lot of women try to avoid a second marriage and instead live with their missing husband’s family. There they might be seen as a “financial burden” and be treated unequally to the rest of the household.

When they are looking for their spouse, women often face harassment or aren’t taken seriously by authorities.

All these consequences lead to a grave deterioration of the women’s rights, including but not limited to the right to a standard of living, the right to health (Art. 11, 12 ICESCR) which in many cases still impact their lives today.[7]

Women fighting for their rights

As desperate some of their situations are, Tamil women have been fighting the violation of their rights as well as of their missing relatives’ relentlessly. With the help of the UN and NGOs, they continue to protest, seek answers and demand reparations. Both of these parties play an important role as supporters, as the UN has the means to address the issue from the top, working with or exerting pressure on the government, while NGOs can work their way up from the bottom, addressing individual cases and fighting for awareness.

#2P2

Photo from https://www.instagram.com/streetsoftamileelam/

The UN has taken several different steps to get an overview of the situation in Sri Lanka and to guide the government in restoring human rights protections, including those of the family members of the forcibly disappeared. The UN Human Rights Council (HRC) has gathered information through Universal Periodic Reviews, the UN Office of the High Commissioner for Human Rights and Special Rapporteurs. Based on these reports, the HRC has issued several resolutions, the most important being 30/1 (2015). Therein, the HRC emphasizes the importance of the transitional justice framework of justice, truth-seeking and reparations of the families of the forcibly disappeared. It welcomes the establishment of a Missing Persons Office by the Sri Lankan government and its willingness to cooperate with the HRC to resolve the ongoing issue.

Amnesty International, Human Rights Watch and other NGOs have tried to draw up lists with names of the disappeared to support the women in their search. These lists have been sent to the Sri Lankan government with an urgent appeal to provide the families of the victims with information regarding their whereabouts.

However, since the election of President Gotabaya Rajapaksa in October 2019, the process of restoring the victims’ human rights has come to a halt. Rajapaksa, who was Defence Minister during his brother’s presidency and the last years of the war, has withdrawn Sri Lanka’s support of HRC resolution 30/1. Instead,reports on new enforced disappearances and threats made towards those searching for their missing relatives and human rights activists are becoming more and more regular.

But however great the adversity they’re facing, Tamil women are not giving up. Starting on the 03rd of February, many took part in a march from the South to the North of Sri Lanka, again protesting for the restoration of their human rights and those of their missing loved ones.

 

[1] Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka, 31 March 2011, https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/POC%20Rep%20on%20Account%20in%20Sri%20Lanka.pdf, p. 41.

[2] Ibid., ps. 9 et seqq.

[3] ““Only Justice Can Heal Our Wounds” – Listening To The Demands Of Families Of The Disappeared In Sri Lanka”, Amnesty International, https://www.refworld.org/pdfid/58e200c04.pdf, p. 7.

[4] Ibid.

[5] Grossmann, C. M., “Disappearances”, Max Planck Encyclopaedias of Public International Law.

[6] Vitkauskaite-Meurice, D., Zilinskas J., “The Concept of Enforced Disappearances in International Law”, Jurisprudencija Vol. No. 2 (2010), 197, 198.

[7] An overview over the consequences for women: ““Only Justice Can Heal Our Wounds” – Listening To The Demands Of Families Of The Disappeared In Sri Lanka”, Amnesty International, https://www.refworld.org/pdfid/58e200c04.pdf, ps. 15 et seq.; Dewhirst, P., Kapur A., “The Disappeared and Invisible – Revealing the Enduring Impact of Enforced Disappearance on Women”, International Center for Transitional Justice (2015), ps. 6 et seqq.

, , , , , , ,
1 2 3 … 18