The Added Benefit of Incorporating ICERD in Scotland

The global events occurring in the spring and summer of 2020 have ushered issues of racial discrimination and inequity into the foreground of social discourse. The COVID-19 pandemic has disproportionately impacted historically marginalised populations and highlighted pre-existing inequalities, Scotland is no exception. The subsequent murder of George Floyd by police in the United States ignited a Black Lives Matter movement around the world. If Scotland wishes to be a global leader in human rights, they must start by ensuring that any future rights incorporation will benefit everyone equally, regardless of race, colour, descent or national or ethnic origin. An effective incorporation of the rights and obligations the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) would be a firm step in this direction. This blog examines why a thorough incorporation of ICERD into domestic law is a necessary next step for Scotland in eliminating racial discrimination.

Access to Remedy:

ICERD demands effective remedies for Convention breaches. While the Equality Act 2010 is meant to provide this access to remedy, there are a number of factors which inhibit its effectiveness in addressing racial discrimination. To begin, the Act and its related Public Sector Equality Duties (PSEDs) in Scotland have a heavy bend towards gender-based discrimination. This focus is then reflected in the respective success rates of gender-based discrimination claims in comparison to racial-discrimination claims.

There are also a number of barriers which might prevent historically marginalised demographics from accessing justice. Such barriers might be economic, meaning not only that they cannot afford litigation, but also that they might not be able to get the time off of work to attend hearings. Depending on the demographic, these barriers might also include language and literacy. Additionally, those who have experienced an intersectional form of discrimination must choose to file under one category or both. This is problematic as intersectional discrimination is not merely additive. Instead, the forms of discrimination endured are distinct from those experienced by an individual who has only one such identity. For example, a woman of colour will experience discrimination that is distinct from the discrimination experienced by white women or by men of colour.

The underlying objective of ICERD is that access to, and quality of rights protections must be equal for everyone regardless of race, colour, descent, or national or ethnic origin. ICERD and the corresponding work of the Committee on the Elimination of Racial Discrimination (CERD) together address many of the aforementioned barriers. Due to the broad nature of the Convention’s articles there is likely to be debate surrounding enforceability, particularly with relation to economic, social and cultural rights. But much work has been done on the ways in which a balance might be struck which acknowledges resource realities while also reaping the many benefits of adequately protecting these rights. Further concerns about an unmanageable number of cases has been addressed through the suggestion of using test cases to manage consistent or common rights violations.

Mandated Adherence by Public Actors: While access to remedy has a key role in effective human rights protection, in an ideal world litigation would not be necessary as public and private actors would not be engaging in discriminatory behaviour. By incorporating human rights into domestic law, the government would signal to public and private actors that Scotland is moving towards increased accountability for actions which directly, or indirectly amount to racial discrimination.

Incorporation as a Public Commitment:

Committing to the incorporation of a human rights treaty, particularly an incorporation which is both full and direct, demonstrates a firm commitment to the rights and obligations contained in that treaty. The Scottish commitment to incorporate the United Nations Convention on the Rights of the Child (UNCRC) has demonstrated the potential for such a commitment. It has generated widespread engagement with civil society, academics, public officials, and even the private sector.This demonstrates substantial potential for incorporation to be utilised as an awareness raising tool which might initiate the decisive societal shift that the Scottish government has acknowledged as necessary to achieve racial equity. Such commitment to incorporating human rights treaties through various methods also substantiates the Scottish Government’s asserted objective to be a global leader in human rights.

Taking a Holistic Approach to Tackling Racial Discrimination:

Although the Scottish Race and Equality Framework and Action Plan also acknowledge the need for these actions, as policy the Framework is subject to changes in politics. Alternatively, incorporation would cement these rights and obligations into law which contributes to sustainable change by mandating adherence. For example, in Colombia which has incorporated human rights through its constitution, the compliance mechanism for human rights violations enables courts to order public authorities to uphold their obligations. Yet, even changes to the law cannot achieve sustainable change on their own.

Scotland’s Public Sector Equality Duties (PSEDs) demonstrate the potential to use legislation to ensure that public institutions are considering the potential discriminatory effects of their actions. But these duties also provide an excellent example of the fact that effectively addressing inequity requires the combined efforts of law, policy, and practice. For example, understanding racial discrimination requires gathering accurate, up to date and disaggregated data to inform solutions. Ensuring the sustainability of rights protections requires training public officials and law enforcement agencies. Effective engagement with historically marginalised communities requires establishing a relationship of trust, for which a key component is acknowledgement of the wrongs committed against that group in the past. Although an incorporation of ICERD would focus on the legal aspect, it has the potential to also serve as a catalyst which ignites the needed corresponding changes to both policy and practice.

Incorporating ICERD would require a thorough re-examination of racial discrimination and inequality in all areas of Scottish life. Through a societal review with such depth and breadth as would be required by a genuine incorporation of ICERD, Scotland might begin to identify and eradicate an issue as deeply entrenched and systemic as racial discrimination.

 

This post is by Emma Sullivan who is currently reading the LLM in Human Rights at Edinburgh Law School. She is a US qualified lawyer.

 

Lessons on the Law and Politics of US Impeachments

In this guest post, LLM in International Law student and GJA Ambassador, Felix Mayr, reflects on a recent Edinburgh Centre for International and Global Law event on the military occupation of the Palestinian Territories and other occupied lands.

 

On 15 January 2020, the Edinburgh Centre for Constitutional Law and the Edinburgh Centre for Private Law hosted Saamir Nizam’s presentation of ‘The Law and History of Impeachment under the US Constitution’. Now practicing law in Scotland, Nizam worked as a lawyer, legislative assistant and investigator for the US congress in the 1990s including during the Clinton impeachment process. He further participated in several national and international investigative efforts including, inter alia, the International Criminal Tribunal for the Former Yugoslavia. In an in-depth presentation, he managed to not only explain the relevant US law to those who are not familiar with it but further invited the audience to think about the greater political process involved.

Mr Nizam began by outlining the two main functions of the US Constitution, the first being the constitution of the government and the second being the restriction of its power. He then illuminated the methodology of how to analyse these provisions to give them their proper legal

US Constitution, US National Archives

meaning. Looking at the history of the Constitution, he noted that in 1787 James Wilson articulated the meaning and the process of impeachment in 1787 with the idea that no president would become a monarch such as in England. In other words, the president must be strong enough to fulfil the position as commander and chief but not so powerful as to be able to set aside the legislature and the Supreme Court. The four impeachment cases across US history each revealed different lessons that could be instructive for the future.

(I) In the 1868 case of Andrew Johnson, who tried to dismiss Secretary of War Edwin Stanton after Congress limited his ability to fire Cabinet officials, the Senate voted him guilty with a majority of 35 to 19.. Despite the majority finding of guilt, the constitutional threshold for an impeachment conviction is two-thirds so Johnson remained in office. Thus, even with an overwhelming majority opposed to a President, conviction and removal from office can fail by just one vote. This account demonstrates that while the process of impeachment is legal, it can and must also be viewed as a political process. However, aside from the relevant articles found in the constitution, at that time, there were no detailed laws or regulations relating to impeachment.

(II) The near-impeachment of President Richard Nixon following the Watergate scandal proved, again, the power of the spectre of impeachment. Not only did it lead to his resignation on 9 August 1974, it also demonstrated that even a popularly elected president can lose his political support and be subjected to impeachment when crimes are committed. In this regard, the Special Prosecutor and especially the Supreme Court were pivotal players in the effort against President Nixon. However, the process demonstrated that the process had become too political. A need for a law dealing with the investigation and prosecution leading to impeachment was needed. This led the Office of Legal Counsel, Department of Justice, to adopt guidance on the Legal Aspects of Impeachment: An Overview in 1974.

(III) With the impeachment of William (Bill) Clinton in 1998 in the aftermath of his affair with Monica Lewinsky, Kenneth Starr was authorised to investigate in the matter. However, Starr’s performance revealed that the Independent Counsel, who serves as a prosecutor, was too powerful and open to abuse. Though Clinton was not convicted, once again, the process was shown to have become too political – more detailed rules and additional controls on the Independent Counsel’s investigative and prosecutorial powers were needed. This led to the Office of Special Counsel replacing the Office of Independent Counsel in 1999, defined by regulation 28 CFR 600.

(IV) In the most recent case, Donald Trump was conveyed for impeachment by the House of Representatives in December 2019 after a whistle-blower revealed information regarding a call with Ukrainian President Zelensky. In the call, Trump coerced the Ukraine to provide damaging stories about Democratic candidate Joe Biden and his son. The Ukraine’s failure to cooperate would have resulted in Trump reneging on a $400 million (USD) military aid package to the country. With the Speaker of the House Nancy Pelosi naming the impeachment managers to conduct the prosecution on the exact day of the event, Nizam illustrated the subsequent process which is currently proceeding in the Senate. A vote in the Senate will ultimately decide on whether President Trump will be acquitted or convicted and removed from office.

History shows that the law of impeachment can be very powerful, as in the Clinton era, or rather weak, as in the case of Johnson. However, the outcome of such a proceeding always remains uncertain. The process of impeachment in American law is ‘a political body wearing legal clothes’ – ultimately, politics will decide the outcome. The power to remove a democratically elected president should not be underestimated – not least with regard to the possible consequences an impeachment might have on the voting public. Overall, Mr Nizam offered a captivating and engaging presentation covering over 200 years of legal history, moving effortlessly between the theory behind the process and its use in practice. Ending the evening with an optimistic outlook, he concluded that it is in challenging times such as the present when the US Constitution can demonstrate its real value and legal power. Looking at the US Constitution as an ‘evolving’ document, the Trump impeachment experience will also have its lessons for future generations.

Human Rights in Scots Law: Building Bridges Between Civil Society, Government and the Academy

In this post, Veronica Luhtanen and Sofie Quist, recent graduates from the LLM Human Rights programme and research assistants at the University of Edinburgh School of Law, introduce the Incorporating Human Rights in Scotland project led by Dr Kasey McCall-Smith in collaboration with Amnesty International Scotland, Together, and Human Rights Consortium Scotland. Here they reflect on a recent workshop that brought together representatives from civil society, the Scottish Government and academia to discuss incorporation of international human rights standards into Scots law.

The Scottish Initiative on Human Rights Leadership

In the past years Scotland has expressed a growing ambition in developing an advanced human rights framework, evidenced both by growing political will and tangible efforts being made in legislation and policy. One step in the process is envisaged to be the incorporation of human rights derived from UN human rights treaties into the domestic legal system, in order to guarantee their enforceability in Scottish courts and beyond.

The First Minister’s Advisory Group on Human Rights Leadership report published in December 2018 sets out a process to incorporate international human rights standards in the form of a Scottish Bill of Rights. It aims to prepare for further devolution and guarantee non-regression of human rights after Brexit, as well as ensuring Scotland remains a leader in human rights protection in the UK. A National Taskforce for Human Rights Leadership was announced in June 2019 and has since begun taking steps to bring new legislation forward. At the same time, as a result of over a decade of work by the children’s sector, the UN Convention on the Rights of the Child is already in the process of being incorporated into Scots law in a separate, yet related effort.

The Incorporation Project

Civil society organisations play a key role in the incorporation process in both influencing decision makers at the public consultation stage during the legislative process, as well as in their overall advocacy work and communication with right-holders.

The Incorporating Human Rights in Scotland project was created in response to a need to assist civil society in fully understanding the importance and concept of legal incorporation, and how to utilise this in their advocacy work. Developed in conjunction with Human Rights Consortium Scotland, Amnesty International Scotland and Together, the project firstly aimed to identify gaps in civil society’s knowledge of the legal process of incorporation. To aid in this task, an initial scoping exercise was held at the University of Edinburgh.

Impressions from our first scoping workshop with civil society

On the 19th of November we met with representatives from civil society, government and academia to scope out knowledge gaps around legal incorporation of international human rights treaties and discuss how our research can be relevant to different civil society organisations.

Those participating in the workshop were particularly motivated to learn more about incorporation of international human rights law, and to gain knowledge that could help them take part in shaping a new Scottish bill of rights. Most were already confident using the language of human rights in their advocacy work across different sectors but were interested in learning what further legal tools are available at the international level and how to make them relevant for people’s everyday lives.

We started the session with three presentations. Kasey McCall-Smith delivered a succinct introduction to the different models of incorporation, distinguishing between direct, indirect and piecemeal incorporation while demystifying terminology that sometimes appear both complex and ambiguous. In our presentations, we aimed to place these models in context through incorporation case studies.

The first case study presented by Sofie demonstrated the judicial avenues and regulatory tools for remedying human rights violations achieved by the Human Rights Act 1998, which incorporates the European Convention on Human Rights. Veronica presented a second case study detailing South Africa’s experience with partially incorporating the UN Convention on Elimination of all Forms of Discrimination Against Women.

Finally, Juliet Harris, director Together Scotland (Scottish Alliance for Children’s Rights) shared her lessons from the campaign to incorporate the UN Convention on the Rights of Children (UNCRC) into Scots law. Children’s advocacy groups in Scotland have the benefit of being organised more collectively than other areas of rights. They have been pushing for incorporation of the UNCRC for over 10 years and therefore have a great deal of insight to offer in terms of engaging with government and parliamentarians.

Following the presentations, we heard from participants about how they use human rights in their advocacy work and discussed their thoughts on legal incorporation. Universally, the participants were looking for tools to use human rights in their advocacy. Our ongoing research will have a two-fold purpose. First, we will develop guidance and training tools about how to advocate for incorporation of human rights using the variable methods of incorporation and related terminology. Second, we will demonstrate how incorporating human rights can create tools for effective human rights advocacy more generally.

We will be delivering the outcomes of our research in the form of case studies of incorporation from around the world, jargon busting guides and training tools clarifying of the legal concepts and processes relevant to incorporation – and the sometimes-blurry lines between them.

Legal incorporation in focus at the annual Rights of the Child UK (ROCK) conference

We heard more about the processes taking place to campaign for incorporation on the UNCRC across the UK’s devolved nations at the annual ROCK conference on 3 December. Speakers from government, academia and civil society presented their plans, research and experience.

The conference also looked further afield. Gudridur Bolladottir, senior legal advisor to the Icelandic ombudsman for children, gave an insightful and uplifting account of how the remarkable decision of the members of Iceland’s parliament to ‘go for it’ and incorporate the UNCRC by consensus, has ‘forced the hand’ of the government. Her experience from the ombudsman office is that once human rights are incorporated into national law, they provide a powerful tool for independent bodies, civil society and parliament to hold government accountable. Incorporation provides an ability to say: ‘this is the law and you have to follow it’.

Several interesting points about legal incorporation were raised across the presentations and discussions, such as how legal incorporation can induce cultural change and how a human rights culture in turn is crucial to ensure that legal incorporation leads to effective implementation of human rights. We were also prompted to think about the role of independent oversight bodies and support for human rights defenders in legislation that incorporates human rights treaties.

What’s next?

Over the next months we will consolidate our research and finalise training materials that will be made available to at international experiences of legal incorporation of human rights treaties into national law in order to identify best practice models to be used by Scottish civil society groups.

The material will be delivered as online training material and through training workshops, the first of which will take place in the last week of February 2020. In the meantime, stay updated on our project website where you will find the scoping workshop presentations, a video from the workshop and more.

 

The Chilean Crisis

This blog, by Valentina Rioseco Vallejos, concerns the current Chilean crisis. It aims to provide the context under which the crisis is occurring, while making reference to human rights violations committed by Chilean State actors. It also discusses the latest developments in the crisis.

Valentina is a first year PhD student at Edinburgh Law School. She is a Chilean licensed lawyer and holds an LLM in Human Rights from the University of Edinburgh.

 

The context

The Chilean crisis began three weeks ago, with students jumping metro turnstiles in Santiago in protest against a price rise of the metro. The government responded to the protests with violent repression which, in turn, led to riots. Rapidly, the protests where reproduced in other cities and they continue to occur today. Protesters argue that the problem is not only the metro fare, but the structural inequalities that do not allow people to afford their basic living costs. Scholars and politicians argue that protests are based on the need for a new constitution and this idea is now gaining force.

Chile is still ruled by the Political Constitution adopted during the dictatorship of General Pinochet, which creates the rules for maintaining a neoliberal economic system. The Constitution was highly influenced by the Chicago Boys, a group of Chilean economists who studied with Milton Friedman. The Chilean constitution does not guarantee effective access to fundamental rights, such as the right to education, the right to health and decent pensions. It also restrains the will of the majority. For example, it demands a legislative supermajority to approve organic laws. Furthermore, workers live with a very low minimum wage (£217.00 per month), which is not enough to cover basic needs.

On 19 October, the Chilean president Sebastián Piñera gave a public speech regarding the social protests. He began his speech declaring “we are at war against a very dangerous enemy”. The rest of his speech continued in the same line, framing protests as acts of delinquency and solely focussing on the riots. He barely mentioned that the majority of the protests were peaceful throughout the country and he did not refer directly to the substantive claims raised by protesters. Consequently, he declared a State of Emergency in several cities of the country, which lasted until 27 October. The Chilean State of Emergency allows the President to delegate security tasks to the military. It also allows for the restriction to freedom of movement within the country. According to the declarations of the President, the State of Emergency would allow protecting both, the security and the property of the Chilean citizens, against criminals and rioters. Protesters responded with massive peaceful demonstrations bearing signs with the phrase “we are not at war”. The protests are also characterised by “Cacerolazos”, which means people beating their pots with wooden spoons.

Human rights violations

During the State of Emergency both, the military and the police committed grave violations to human rights and riots where not properly controlled. These violations included the right to life, the prohibition of torture, the right to peaceful assembly, freedom of expression and the right to liberty and security. As the State of Emergency is now finished, military personnel are no longer in the streets. However, the police continue to commit human rights violations and use disproportionate force against protesters. By 30 October 2019, 22 deaths had occurred in the context of the social protests. Five of these deaths were committed by state agents. The Chilean National Institute of Human Rights (INDH) has filed complaints in respect of these deaths. One of the deaths was caused by gunshots of military personnel in Curicó, a city where no State of Emergency was declared. There are also victims being run over by state vehicles, killed by rubber bullet wounds and by beatings. By 4 November, the INDH had filed 181 complaints against state agents, of which 152 allege torture, maltreatment and sexual abuse. The INDH also reported 4364 detentions with 479 of these detainees are identified as children and adolescents. In addition, it stated that 1659 people have been injured, of which 160 suffered eye wounds caused by gas pepper bombs and shootings. Journalists and photographers have also been beaten, shot and detained. On 29 October, a human rights observer from the INDH was shot by the police six times in his leg. In other contexts, human rights treaty bodies have already reproached the violent and repressive responses by the Chilean police in contravention of Chile’s international human rights obligations (CRC, para. 36 and CAT, para.22). The human rights violations committed during these events demonstrate that the protocols of the Chilean police and military personal have not improved.

International and regional organisations, together with non-governmental organisations are watching the Chilean crisis. The High Commissioner of Human Rights (HCHR) declared, “there are disturbing allegations of excessive use of force by security and armed forces” and expressed alarmed at reports stating that “some detainees have been denied access to lawyers, which is their right, and that others have been mistreated while in detention”. A team of the HCHR is currently being deployed to the country. They are examining the human rights allegations, meeting with various actors and gathering information on measures taken by the Government to address the situation. The Inter American Commission on Human Rights (IACHR) condemned the excessive use of force applied by police and military forces and rejected all forms of violence in the context of the ongoing situation in Chile. In addition, it declared to have received complaints regarding detentions where state agents acted with a disproportionate use of force, harassed children, sexual abused protestors, and subjected still more to torture or other ill-treatment. Thus, it called a public hearing concerning the human rights situation in Chile. Human Rights Watch and Amnesty International also condemned the excessive use of force. The latter announced a research mission to document grave human rights violations.

Latest developments

As of time of writing, the political situation seems to have moderately improved. However, the numbers of human rights violation victims reported by the INDH continue to increase every day. President Piñera changed his cabinet and affirmed that would implement some new social measures. However, he is currently governing as a leader of the right, thus the economic and political structure that maintains inequalities remains the same.

The political debate is now focussed on whether the Constitution should be modified and if so, how. Chileans are currently organising citizens assemblies (cabildos ciudadanos) in which they are discussing how to change the Constitution and the pension system. The government has not yet delivered any proposal concerning these demands.

Chilean civil society has, for years, anticipated this type of social and political confrontation. Inequalities and abuse are too evident across Chile. It is encouraging that the country finally woke up and demanded change. As Chileans watching from Scotland, however, we remain deeply concerned about the wellbeing of our fellow citizens, our families and our friends.

 

This Blogspot is the result of conversations and information shared between Chilean citizens living both in Edinburgh and in Chile. To all of them, thank you.

Military Occupation of the Palestinian Territories and Beyond

In this guest post, LLM in International Law student and GJA Ambassador, Felix Mayr, reflects on a recent Edinburgh Centre for International and Global Law event on the military occupation of the Palestinian Territories and other occupied lands.

On Thursday 17 October 2019, the University of Edinburgh held an event presenting new scholarly work on the law of occupied territory, a field which has experienced a renaissance since the US-UK invasion and occupation of Iraq. The relationship between the law of occupation and other areas of international law, such as human rights and environmental law, has become a pressing legal problem in a range of contexts. The relationship between the law of military occupation and long-term military, political, and economic, domination – a scenario which the law of occupation was not intended to regulate – is raised by the 52 year occupation of the Palestinian territories by Israel, which has developed its own intricate legal architecture to manage the occupation. The panel was followed by a lively discussion among scholars including Professor Orna Ben-Naftali (Emile Zola Chair of Human Rights, Striks School of Law, Tel Aviv), Dr Marco Longobardo (Lecturer in Public International Law, Westminster Law School, London), and Stavros-Evdokimos Pantazopoulos (Legal and Policy Analyst, Conflict and Environment Observatory).

The ABC of the OPT: A Legal lexicon of the Israeli Control over the Occupied Palestinian Territory (CUP 2018), presented by Professor Ben-Naftal, questions what role law has played in structuring and sustaining the ongoing regime of “control” of Israel over the Occupied Palestinian Territory (OPT). She argues that Israel’s occupation is far from acting in a space of lawlessness; by contrast, it is “filled to the brim” with legalism. This law, while seeming to be arbitrary, is in reality carefully crafted to create a precise order: this order, however, is designed to create uncertainty among those affected by it, rather than offering certainty – a core tenant of the rule of law. She argues that the control of the Palestinian territories is probably “the most legalized such regime in world history”. It is therefore a “legal laboratory”, and “careful scrutiny of the experiments carried out in Israel’s legal laboratory may well generate lessons that are relevant to other situations, and indeed to the course of the development of international law itself”.

Dr Longobardo’s The Use of Armed Force in Occupied Territory (CUP 2018) can be seen as an attempt to identify and clearly delineate the legal framework relating to the legality of the use of force in occupied territories. The author takes a broad approach to its topic by contextualizing it within three different bodies of international law: jus ad bellum, international humanitarian law and international human rights law. While occupations have become a subject receiving more and more scholarly attention, Longobardo suggests that the law pertaining to those occupations has been relatively under-studied. He asserts that the very existence of an occupation means that an armed conflict is already ongoing, rendering jus ad bellum irrelevant in the occupation context. Further, as jus ad bellum is only operative before a conflict starts, it cannot necessarily act as a justification for armed force used during an occupation.

Stavros-Evdokimos Pantazopoulos discussed his work on protecting the environment in times of occupation, with a focus on the obligations of an occupying power in relation to environmental law. Firstly, he considered the applicable law in the situation where the occupying power has established its control over an occupied territory, focusing on the conservationist principle or the “no harm” (or Trail Smelter) principle. He then further investigated the specific obligations of an occupying power when parts of the environment are classified as ‘property’, while also attempting to shed light on the requirements imposed on an occupying power regarding the use and management of natural resources situated on occupied territory. He concluded by explaining the role of international human rights law in protecting the environment in times of occupation, arguing that the current trend in environmental law to apply human rights approaches – for example, by using the formula of human rights language – should not be followed, since this might conceal the emancipatory prospects of other discourses. He argued that this approach can also be justified due to the incompatibilities between human rights and environmental law, such as the anthropocentric and instrumental approach to environmental protection or the failure of human rights to capture the collective nature of environmental law.

This event offered a rich discussion of the various legal constructs that are, and could be, applied to occupied territories. Ultimately, the unique insights offered by the speakers illuminated the legal discourse surrounding military occupation in many unexpected ways.

 

 

The Distinction Principle and the Guantánamo Military Commissions

In this guest post, LLM in International Law student and GJA Ambassador, Felix Mayr, reflects on a recent Edinburgh Centre for International and Global Law event on the principle of distinction and the application of contemporary international law.

 

On 15 October 2019, The Edinburgh Centre for International and Global Law held a panel discussion exploring the principle of distinction as defined in international humanitarian law. The primary aim of the panel was to Illuminate some of the legal questions concerning the evolving notion of distinction, focusing on the current US point of view. The panel featured both experts from academia and practice, including James Connell and Benjamin R. Farley, two of the defence lawyers in the 9/11 military commission case taking place in Guantánamo Bay, as well as Dylan Craig, senior professorial lecturer of International Relations at American University’s School of International Studies (SIS) in Washington, DC, and Katharine Fortin, Assistant Professor at Utrecht University.

The notion of distinction has proven to impact a variety of issues, including: the obligations of non-state actors in armed conflict; the prosecution of different actors through military commissions; how the distinction principle has been shaped by the US War on Terror; as well as human rights breaches linked to the unlawful detention of individuals inappropriately categorised under international humanitarian law (IHL).

Dylan Craig argued that there are grey zones of formalized war, more aptly framed as interstices where state power and jurisdiction are mismatched. These “sovereign interstices” can be imagined as a black and white chess board. They can be deemed inextricable from the negative spaces of the great war-regulating sovereign orders, but they are, on the other hand, also characterized by recurring characteristics among the fighters who are recruited to fight proxy wars within them. States and the notion of sovereignty have changed greatly in the last four hundred years since the Westphalian Peace, but interstitial fighters have changed far less in comparison, and the same can be said of the recurring styles in which they are employed by their patrons. He argued that there has never been a “static” concept of sovereignty, but one that changes slightly a few times over the course of a hundred years. Hence, he concluded that we might be on the verge of establishing a new concept of sovereignty, reminding the audience that it is up to us, not only as academics but also citizens and human beings, to determine what this concept should look like. Closing on an optimistic note, he argued that events such as Guantánamo Bay give us a chance to productively respond to these incidents.

Katharine Fortin explained that the title of the panel captures the somewhat chaotic state of the legal approaches that have developed to deal with armed groups in the area of IHL, especially with regards to the US. She argued that through a system of judicial self-referencing the US have taken an exclusive stand point in explicit contradiction to the stand point of the International Committee of the Red Cross (ICRC). The US’s own definitions of legal terms such as “hostility” or “membership” (regarding armed groups) has led further and further away from internationally acknowledged rules into an exclusive US approach to the notion of distinction.

According to James Connell, the US has turned its own system on its head since the war on terror began after the events of 9/11. This is due to the fact that military commissions were seeking a way to hold terrorists to account, by twisting existing legal terms and principles to then reach the desired outcome. This has led to a problematic situation in which “pure” civilians can be (and are) subject to military commissions. The blurring concept of the notion of distinction has proved to be particularly problematic against the background of the authority of military commissions to decide upon executions.

Benjamin Farley similarly observed that the US is struggling with the principle of distinction, dividing the law of war into two concepts: the liability to detain and the notion of being targetable. Anyone not falling into either one of these categories can be deemed as a civilian and remains protected by general law. However, civilians who pose a security threat have also become liable to detention for (at least) a restricted period of time, often without a chance for legal review of their detention. Through a system of picking-and-choosing from legal categories by analogy, the US has created a confusing concept regarding the categorization of civilians as members of an armed group. He argues that these conflicts have now become transnational, surpassing the former concept of non-international conflicts, and the application of the distinction principle has not developed coherently.

Overall, the panel presented a vital discussion, building not only on the presentations by the speakers but also from stimulating questions and ideas raised among students, lawyers and other members of the audience. Most importantly, the speakers were able to make the work of military commissions come alive, explaining the dilemma of navigating legal rules adopted in response to narrow and often ill-conceived political agendas.

Incorporation of the UNCRC into Scots Law: What, How and Why?

This post by Dr Kasey McCall-Smith looks at the  recent Scottish Government consultation on incorporation of the UN Convention on the Rights of the Child (UNCRC) into Scots law. It introduces basic incorporation concepts and the draft Children’s Rights (Scotland) Bill submitted to the Government by the Expert Advisory Committee on UNCRC Incorporation convened by the CYCPS and Together, of which Dr McCall-Smith is a member. This discussion is a starting point to an ESRC Impact Acceleration grant project entitled ‘Incorporating Human Rights in Scotland’ which runs September 2019 – March 2020. 

Incorporation of the UNCRC into Scots Law: What, How and Why?

For many years, Scotland has worked to secure a strong law and policy foundation for the protection of children’s rights. These efforts, while commendable, have created a patchwork system of protections for children and equally inconsistent opportunities for children in Scotland to exercise rights that the majority of adults hold most dear, such as the freedom of expression, freedom from assault and participation in decision-making processes. International children’s rights practice confirms that the first step in securing the broad range of rights for children is through the incorporation of the UN Convention on the Rights of the Child (UNCRC). Across 54 articles the UNCRC protects civil, political, economic, social and cultural rights, encourages a holistic approach to addressing issues that affect children and seeks to offer balance when children’s rights at odds with other rights holders, such as parents or guardians.

As a party to the UNCRC since 1991 the UK has a legal obligation to ensure that all domestic legislation is compatible with the international agreement yet the UK has done little to collectively make children’s rights a priority through legislation. Thus, devolved UK nations, including Scotland and Wales, have individually made political and legal commitments to further entrench children’s rights in line with the UNCRC. To this end, earlier this year, the First Minister pledged to incorporate the UNCRC into Scots law. This pledge set in motion variable activities across government, Scottish Parliament and civil society to determine what this means and how best this is to be achieved in Scotland. A key problem is that very few law and policy makers have ever had the opportunity to go through the technicalities of incorporating a piece of international law – a human rights treaty – into national law.

Consultation Paper seeking comment by the public was released by the Scottish Government in May 2019 as a prelude to UNCRC incorporation. The following examines some of the consultation’s subject matter.

What is incorporation?

A simple explanation of incorporation in the context of a human rights treaty such as the UNCRC is that it is a narrow conception of human rights implementation, which ensures direct application and enforceability of the rights in national law. ‘Direct application’ means that the UNCRC provisions are capable of being invoked in national courts and must be applied by government institutions. ‘Enforceability’ generally refers to the availability of institutions, such as courts or other administrative agencies, and procedures to provide a remedy for the breach of a right.

The consultation paper correctly notes that there is no single method of implementation, however implementation and incorporation are two different legal concepts that should be clarified. The Committee on the Rights of the Child (CRC Committee) has often reiterated that direct incorporation is the first step toward effective implementation while implementation represents the collective legal, policy and social initiatives that support the realisation of a right. Incorporation is effectively the entry point to realising children’s rights.

How do we achieve incorporation?

Incorporation can be achieved through a variety of methods. The options include direct incorporation, indirect incorporation (what the Government has incorrectly termed ‘transposition’) and piecemeal/sectoral incorporation as well as a host of options in between. Scotland has followed a piecemeal/sectoral approach thus far.

Direct incorporation is a term that has long been used in the UK and internationally to identify legislative practice of taking a piece of international law – in this case the UNCRC – and transposing it, or embedding it, directly into UK law using the verbatim language of the treaty, much like the Human Rights Act 1998 model did with the European Convention on Human Rights. It has many advantages as it ensures the rights remain comparable to those in the UNCRC rather than an alternative version, such as the option suggested in the Scottish Government’s consultation.

Indirect incorporation means that the treaty is either incorporated by another constitutional convention or that it is incorporated in some way that does not equate to direct incorporation. There are many variables in this option and the Scottish Government has identified this as ‘transposition’, which demonstrates the confusion around incorporation as it uses the word ‘transposition’ incorrectly. Transposition is not an appropriate word if talking about ‘redefining’ an international convention. This takes away an anchor to the language of the UNCRC that has been interpreted by the CRC Committee as well as across the 196 countries that are party to the treaty.

Piecemeal or Sectoral incorporation is the practice where different rights of the convention are incorporated into legislation that is sector specific, such as disabilities or criminal justice legislation. While effective in many instances, this approach results in large gaps in children’s rights protection.

The draft Children’s Rights (Scotland) Bill follows a direct incorporation model much like the HRA 1998 but going further to expand on important aspects that are necessary to fully protect children’s rights. The three part draft bill was developed by an advisory committee of experts on both children’s rights, constitutional law and international law. The advisory committee was convened by the Children and Young People’s Commissioner Scotland (CYCPS) and Together (Scottish Alliance for Children’s Rights).

Part I clarifies that the bill is about wholesale, direct incorporation. It sets out a clear framework of rights against which the relevant government authorities and the Scottish Parliament can check themselves to ensure that they have considered the wide range of children’s rights that could be impacted by government action, law or policy. It ensures that children’s rights are considered at the earliest stage of law and policy development.

It includes all articles of the UNCRC and the articles of the Optional Protocols to which the UK is party. Notably, if the UK ratifies further optional protocols, these could be added by order of the Scottish Ministers. The draft bill clarifies the relevant duty-bearing authorities, including Scottish Parliament, Scottish Ministers, any authority exercising functions in areas of law or policy devolved to Scotland and all Scottish public authorities.

Part I fulfils the Scottish Government’s political commitment to incorporate the UNCRC in Scotland in a proactive manner, rather than ad hoc or ill-defined rights that have no resonance with well-established jurisprudence. Notably, it highlights the many sources of interpretation sources available to interpret the UNCRC that already exist.

Part II delivers the real teeth of the bill, which makes it unlawful for relevant authorities to act incompatibly with the Convention or optional protocols. This is the reactive section of the bill, which complements the proactive approach described below and follows the Human Rights Act model. It requires all bills to include a statement of compatibility with the UNCRC, building on the existing CRWIA system, which while a strong commitment under the 2014 Children and Young Persons (Scotland) Act, has proven inconsistent in practice. It also includes enforcement through the legal system, including redress and remedies, and strike down powers for inconsistent legislation. Crucially, it recognises the standing of children and a range of further stakeholders in terms of judicial review, which is important in terms of public interest litigation that could aid in pre-empting harm. There is widespread acknowledgement that unless there is a remedy, there is no right. International practice has confirmed that simply because remedies exist, litigation floodgates will not be opened. In line with the proactive and reactive strategy behind the draft bill, litigation is a last resort but is absolutely necessary to make rights real for children and young people. Simply because rights will be reinforced by the bill and remedies will now be clearly available, it does not mean that children will be lining up to litigate. The point of the combined proactive and reactive strategy is that all relevant government authorities will think through the impact on children before missteps are taken.

Part III is the proactive section of the draft bill. It places a due regard duty on all relevant authorities providing the opportunity to ensure children’s rights are protected from the birth of a new law or policy. But as Welsh practice has demonstrated, due regard alone is not enough. It is simply one piece of the puzzle. Thus the draft bill enhances the due regard duty by requiring a Children’s Rights Scheme that requires child involvement in the development of new law and policy and requires consultation with the CYCPS – why would government and parliament ignore advice from the expert on children’s rights? The draft bill reflects international practice in some of the strongest children’s rights forward jurisdictions.

The draft bill also requires reports on compliance with the due regard duty to be laid before the Scottish Parliament every three years and that reporting is delivered in an accessible, child-friendly version. Without self-reflection and children’s participation, Scotland cannot be the best place for children to grow up.

Why incorporate the UNCRC?

As has been consistently advocated by the CYCPS, Together and the expert advisory group that has been working with the them for many months, full and direct incorporation is the preferred model for fully realising children’s rights in Scotland. The UNCRC framework is a trusted reference point, it has an established, identifiable body of interpretive jurisprudence not only in the UK but across the world, and gives extensive consideration to the basic needs of children across mainstream rights platforms as well as those children’s rights that are marginalised for any number of reasons. To be clear, the UNCRC is a floor, not a ceiling, and the language used in the Convention confirms that governments must do more than pay lip-service to the Convention if they are to fully deliver a legal landscape that promotes, protects and fulfils children’s rights and an environment where ALL children thrive.

The First Minister has claimed she would like Scotland to meet ‘the UN’s gold standard on children’s rights.’ Full and direct incorporation of the UNCRC is the most appropriate way to ensure that Scotland achieves this goal.

‘We Need to Talk About an Injustice’: Bryan Stevenson delivers Ruth Adler Lecture at University of Edinburgh

Law PhD Candidate, Vivek Bhatt

In this guest post, Law PhD Candidate, Vivek Bhatt, reflects on Bryan Stevenson’s visit to Edinburgh Law School to give the 2019 Ruth Adler Memorial Lecture, and to receive an honorary doctorate as part of the School’s summer graduation ceremony.

Bryan Stevenson (c) Nick Frontiero Photography 2019

 

 

 

On 8 July 2019, the Global Justice Academy hosted a lecture by Bryan Stevenson, recipient of an honorary doctorate at the Edinburgh Law School.  Stevenson is founder of the Equal Justice Institute (EJI) in Montgomery, Alabama, and a clinical professor at the NYU School of Law. Stevenson works as a legal representative for disadvantaged and marginalised individuals, particularly young and poor people who are on death row or serving life sentences. He and his colleagues at the EJI have achieved the exoneration or release of over 125 individuals on death row. Stevenson is also the author of Just Mercy: A Story of Justice and Redemption,[1]  which was a New York Times bestseller and won the Carnegie Medal for the best nonfiction book of 2014.

Stevenson’s lecture circulated around a question that is as succinct as it is complex: how do we, as human rights advocates, address injustice? Firstly, he said, we must create justice by becoming proximate to those suffering inequality and injustice. Recounting his relationship with his grandmother, who wished that Stevenson would always be able to feel her embracing him, the skilful orator argued that we must know and seek to understand those who suffer injustice in order to affirm their humanity and dignity. Thus, human rights practice is not about the deployment of legal arguments from afar, but rather about stepping away from one’s legal expertise and embracing those who suffer violations of dignity.

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Off the Record: Medical Records in the 9/11 Military Commission

This post continues the blog series by Dr Kasey McCall-Smith which examines some of the contentious legal issues raised in the US v. Khalid Shaikh Mohammad, et. al. military commission proceedings against the five men charged with various war crimes and terrorism in relation to the 11 September 2001 attacks on the US. The series is a continuation of her project ‘Torture on Trial’ which was funded by a grant from the Royal Society of Edinburgh and is supported by the Edinburgh Law School.

Personal Data and National Security: Medical Records in the 9/11 Military Commission

Almost since the inception of the 9/11 military commissions, defense lawyers have fought to obtain the full medical records of their clients. In any normal court, a client’s ownership and access to their personal medical records would go unchallenged. The right to privacy is fairly clear on this. Whether relying on the Fifth and Fourteenth Amendments of the US Constitution or article 17 of the ICCPR, individuals have the right to control their personal medical information with some exceptions (notably those outlined in HIPAA in the US). However, in the largest criminal justice trial in US history, access to medical records is shrouded in secrecy and national security privilege is reinforced through redactions to files covering even the simplest of medical treatment, such as providing ibuprofen for pain relief.

Joint Task Force Guantánamo, the cross-branch military force created by the US Department of Defense to run detention operations in Guantánamo, is responsible for assessing and delivering care for the medical needs of all detainees. As a result, it maintains full medical records on the 40 men still held in the detention facility. Government prosecutors also have copies of the full records. However, neither the defendants, nor their attorneys, are able to gather a full account of their medical information because full access is consistently rejected by the Government in the name of national security.

The complete medical records sought begin with those documenting the intake of the defendants in 2006 when they arrived in Guantánamo following years on CIA black sites. The records covering the medical treatment of the five 9/11 defendants is crucial to the case due to the systematic torture they endured at the hands of the CIA and the statements of guilt some are alleged to have given to the FBI shortly after arriving in Guantánamo. The physical and psychological impact of the enhanced interrogation techniques on the men, as documented in the Senate Intelligence Committee Study on CIA Detention and Interrogation Program (SSCI Summary Report) further speaks to a range of issues that are highly relevant to the trial, not the least their ability to participate in their own defence and their competence to even be in the dock.

A primary point of contention comes in response to the public availability of the record of torture, inhuman and degrading treatment the defendants suffered on black sites. The SSCI Summary Report is very clear on the issue of the defendants’ treatment. The CIA shredded all pretence in terms of legality with regard to the treatment of these five men and many others. Constructing an understanding of their physical and mental states in the lead up to the FBI interrogations in January 2007 will shed light on whether those statements may be excluded as torture evidence, an issue that remains unclear at the close of the 35th round of pre-trial hearings.

Redacted medical records

While there is a great amount of writing and authority on the issues of confidentiality, privacy and security of medical records, those discussions are predominantly focused on keeping personal records closed for the benefit of the patient. In the 9/11 case, the reverse is true. Defense teams have spent years trying to gain full access to their clients’ personal medical files. In many instances it is not only about their variable litigation strategies but also about helping explain their client’s individual health issues to them more fully. As has often been raised in court, a number of the defendants suffer conditions akin to post-traumatic stress disorder and there have been suggestions of brain damage following MRI scans, all indicia of the ill-treatment they endured in CIA captivity.

Trial counsel for the government has turned over 47.000 pages of medical history to the defendants relating to medical, psychological, dental or therapist visits since their arrival in Guantánamo. The problem is that all of the documents are redacted to some extent and predominantly it is medical personnel identifiers that are removed. With the exception of seven real name examples Government counsel acknowledged as ones he had ‘missed’ in error, all names have been replaced by unique medical identifiers (UMIs) or redacted to obscure the identification. The UMIs include designators such as Dr Shrek, SMO (Senior Medical Officer) and Dr 10. More vexing for defense counsel is the fact that several of the UMIs are not unique at all. As counsel argued before the commission, in the course of their examination of the records provided by the Government, it has become clear that the same UMI was used by different medical professionals in some cases and in others individuals had used different UMIs in a haphazard way. This inconsistency frustrates defense efforts to piece together a clear picture of their clients’ physical and mental states when they arrived fresh from their years on black sites as they are unable to corroborate the information derived from the incomplete reports.

Persistent threats to medical personnel?

The Government contends that these men pose a direct threat to the safety of medical personnel and their families. It is an interesting argument considering the defendants’ long-term address in the top-secret, maximum security Camp 7 where the very limited communication they have with the outside world is subjected to extensive security and classification reviews. Government counsel went as far as to claim that threats against medical personnel are made ‘practically every day, certainly at least once a month’, suggesting that they were made by the men for whom the military medical corps has provided care for roughly 11 years. It is unlikely that evidence of these ‘threats’ will ever be seen by the public. Such evidence, if it exists, may be proffered through ex parte submissions to the judge anytime prosecution invokes the national security privilege. Defense efforts to substantiate claims of the threats have been fruitless and, according to counsel, none of the few medical personnel that have been tracked down have suggested that they were ever threatened in the course of their treatment.

In-court exchanges suggest that all government explanations of medical records are to be taken at face value despite multiple proffers of error by defense counsel. The more bizarre fact is the Government admission in previous commission exchanges that medical records including the names of medical professionals, is not classified material. Even if classified, or marked as sensitive, the legal team members all have the clearance to view the full documents. In a case heavily dependent on classified material, it is not uncommon for the cleared lawyers to access materials for investigation purposes without sharing the information with their clients. It, therefore, boggles the mind that the Government continues to deny defense counsel information necessary to fully investigate each defendant’s case. It seems solely obstructive that defense counsel is forced to argue for access to full medical records bit by bit as the responsive records provided after each successful motion provides only a bit more information than before. Very simply, the Government should provide unclassified information when requested through discovery.

The tussle over complete medical records appears to be a circular exercise. No logic can explain the stalemate in relation to complete medical records for the 9/11 defendants. And with a third judge due to assume control of the case at the 36th round of hearings in June 2019, the issue is likely far from over.

Off the Record: 9/11 Military Commission in its 7th Year

This is the third post in a blog series by Dr Kasey McCall-Smith which examines some of the contentious legal issues raised in the US v. Khalid Shaikh Mohammad, et. al. military commission proceedings against the five men charged with various war crimes and terrorism in relation to the 11 September 2001 attacks on the US. The series is a continuation of her project ‘Torture on Trial’ which was funded by a grant from the Royal Society of Edinburgh and is supported by the Edinburgh Law School.

Whatever Happened to the Alleged 9/11 Terror Plotters? 9/11 Military Commission in its 7th Year

The largest criminal justice trial in US history is currently taking place on Naval Station Guantánamo Bay. For the most part, the general public has no idea. Apart from consistent media coverage by a small handful of journalists, including Carol Rosenberg (formally of The Miami Herald and now with the New York Times) and John Ryan of Lawdragon, the US public and the formerly vocal academy have forgotten that five men, Khalid Shaikh Mohammad, Khallad bin Attash, Ammar al-Baluchi, Ramzi Bin Al-Shibh and Mustafa al-Hawsawi, are charged with conspiracy to commit various war crimes and terrorism in relation to the September 11th attacks under the Military Commissions Act 2009 (MCA) in United States v. Khalid Shaikh Mohammad, et al. (9/11 case). In previous blogs I have explained the choice of venue for the detention facility, law of war detention, details on some of the detainees, and addressed issues relating to torture. This series looks in more detail at specific issues in the trial and why controversial legal stand-offs may not go away.

The first incarnation of the military commissions were replaced by the MCA following the US Supreme Court decisions in Hamdan v. Rumsfeld and Boumediene v. Bush. The MCA applies to alien terrorist suspects and members of al Qaida, defined as alien ‘unprivileged enemy belligerents’, rounded up from 2002-2008, though recently there has been talk of the potential use of the statute to detained ISIS fighters.

 

The MCA sets out its applicability to offences before, on and after 11 September 2001 and raises questions about the long-standing principle of no ex post facto laws and the creative addition of ‘conspiracy’ to accepted war crimes definitions. The statute combines different and overlapping issues of military law, constitutional law and international law. Observing the 9/11 hearings, the failure to thoroughly evaluate the relationship between these different legal systems is proving problematic in every aspect of the trial’s slow progress. The only clarity lies in the fact that legislative responses to 9/11 were walled off from the realities of the outrageous conduct of the CIA during its Rendition, Detention and Interrogation programme.

According to the Senate Intelligence Committee Study on CIA Detention and Interrogation Program (SSCI Report), it is well documented that Khalid Shaikh Mohammad was subjected to combinations of ‘enhanced interrogation techniques’, so-called EITs, equating to torture designed to exercise total control over the victim. Notably, he suffered periods of sleep deprivation lasting up to 180 hours and was ultimately waterboarded 183 times. The other four defendants were similarly treated. Bin Al-Shibh was subjected to EITs for approximately 34 days and kept in social isolation for almost 2.5 years. Bin Attash and al-Baluchi were subjected to EITs over a period of months. The CIA waterboarded al-Hawsawi and further subjected him to such brutal bodily treatment that he suffers irreparable physical damage. In short, US agents subjected each of them to a sustained and systematic programme of torture in direct violation of US and international law.

The illegal actions by the US were defended by the then Bush Administration as necessary to national security. When rumours and then evidence of ill-treatment began to leak out of US military bases abroad, international civil society and US civil rights groups called for the US, as well States working in concert with the US, to maintain detention and treatment standards demanded by the law. In particular, the customary Law of War and standards outlined in the Geneva Conventions as well as the Convention Against Torture were frequently invoked. Yet as the first detainees arrived in Guantánamo on 11 January 2002 these well-established rules appeared to be the furthest thing from the US government’s mind. For anyone watching as the first goggled and shackled jumpsuit-clad men dropped to their knees in the Cuban heat it was clear that this would be a long game. Of the approximately 780 men that were detained in Guantánamo since it opened the doors to the now defunct Camp X-Ray (pictured below), only 40 remain. One man (Balhul) is serving his sentence following conviction by military commission, 26 are known as ‘forever prisoners’ and eight are currently under charge, including the 9/11 defendants. The 9/11 charge sheet alleges that the defendants committed conspiracy, attacked civilians, and committed murder in violation of the Law of War, intentionally caused serious bodily harm, hijacked an aircraft, and committed acts of terrorism resulting in the deaths of 2.976 along with countless injuries. Following their arraignment on 5 May 2012, intentionally causing serious bodily injury was struck from the charges in the early months of the case. From the outset, issues regarding public access to the trial were raised. Limited public access to close circuit broadcast sites was offered to families soon after the litigation commenced. Though now only a trickle of viewers attend the 40 second delayed live-streams at Fort Meade, Fort Devens and Fort Hamilton. The roster of media and civil society observers at Camp Justice, too, can only be described as small when compared to the original outpouring of attention on the detention activities in Guantánamo.

In its 7th year of pre-trial proceedings, the 9/11 case is bogged down in a range of issues (see subsequent posts) that challenge the rule of law to its very core. How to reconcile the defendants’ status as both alleged terrorist war criminals and torture victims? Does US ‘reinterpretation’ of war crimes definitions square with the law of war? Can an appropriate balance between the alleged crimes and victimhood be achieved? Will the victims of 9/11 ever get the justice they deserve and, if so, at what cost? Seventeen years after the horrendous acts that markedly shifted western governments into a new era of aggressive national security pursuits, it seems that only time will tell. At the conclusion of the 35th round of hearings, we are left only with questions.