De-Mystifying The G-Word: Enforcement and Success of the Genocide Convention

 UN Photo/Evan Schneider - 70th Anniversary of the Convention on the Prevention and Punishment of the Crime of Genocide.

UN Photo/Evan Schneider – 70th Anniversary of the Convention on the Prevention and Punishment of the Crime of Genocide.

This post by is by Oskar Granskogen Kjorstad, Alexandra Haider and Tess Gallagher. They are students enrolled in PLIT10063 ‘Human Rights in International Relations’, an honours-level course in the School of Social and Political Sciences that explores the political and legal issues surrounding the international enforcement of human rights. As part of their online tutorial activities, students were asked to prepare a blog post about the enforcement of the Genocide Convention. This piece was selected as the standout among the many excellent submissions, chosen for its incisive commentary on the Darfur crisis and its excellent discussion of the Convention’s broader application.

 

 

There is no shortage of forgotten conflicts in history that briefly capture the world’s attention on their way through the news cycle before the next noteworthy event promptly takes their place in the spotlight. Darfur is an especially painful example of such a conflict. State-supported and ethnically motivated violence against the civilian population of Darfur has caused enormous suffering. Yet despite calls from civil society for states to intervene on the grounds that they are obligated to under the Genocide Convention, the international community took no meaningful action to stop the violence. What explains the apathy of the international community and the difficulty of enforcing the Genocide Convention in relation to Darfur?

One of the most basic problems with the enforcement of the Genocide Convention is the difficulty of consistently and accurately applying the legal definition of genocide to cases of mass violence. The Genocide Convention defines genocide as “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. Different international courts have variously understood this definition. In Srebrenica, the ICTY ruled that the murder of 7-8000 Bosnian Muslim men and boys met the legal definition of genocide, though this case was less obviously a genocide than the Holocaust, which led to the Convention. In spite of the wide span in cases identified as genocides, the ICC determined that the violence in Darfur did not amount to “the crime of crimes”- not because the violence was less horrific than expected, but because the particular nature of the violence was deemed not to meet the legal definition of genocide. The U.S., as well as many NGOs and scholars, reached the opposite conclusion. This lack of legal clarity makes it harder to effectively identify cases of genocide, which is a problem in the enforcement of the Genocide Convention. Confusion caused by these legal debates can be used as an excuse by states not to use the word “genocide”, and so avoid pressure to act and subsequent legal obligations to end mass-atrocities.

If the definitional issue is overcome, another obstacle as to why the Genocide Convention is so rarely invoked lies in the semantic power of the word. Sardonically labelled ‘The G Word’, there is often a reluctance to utilise the word for fear of its connotations. Many argue that the term denotes absolute, totemic evil and thus should be treated with caution when used in political discourse. As a result, it is often replaced with other, more (supposedly) palatable alternatives, such as ‘ethnic-cleansing’. Examples of this were seen in the US’ refusal to condemn and recognise the Armenian Genocide; choosing instead to refer to it by the Armenian language phrase ‘Meds Yeghern’, or ‘Great Catastrophe’. This was not without external pressure- such power does the word have that US officials were threatened with losing access to military bases in Turkey if they were to vocalise it. Of course, strategic imperatives often trump moral ones; and evasive terminology in this case appeared the only way to conciliate all sides.

Once the word is invoked however, the game appears to change. If word is weapon, does saying it signify battle? In cases such as Darfur, it appears not. Despite internationalcondemnation and adducing of the Genocide Convention, the violence in Sudan still continues. Numerous resolutions have passed all with limited, if not weak, success. This leads many scholars and critics to question the legitimacy of the Genocide Convention; does it exist to appease, rather than to act?

Given the poor track record of the state system in preventing genocides, there’s a good case to be made for the former. A key explanation for this is that states put their self-interest above their obligation to prevent and punish genocide. States may circumscribe their response in ways that falls short of stopping the atrocities because they don’t see total involvement as self-serving. Upon examination of the crisis in Darfur, this fundamental challenge to the enforcement of the Convention is evident. While the U.S. publicly recognised the crisis as a genocide, Secretary of State Colin Powell asserted that,

UN Photo/Evan Schneider - 70th Anniversary of the Convention on the Prevention and Punishment of the Crime of Genocide.

UN Photo/Evan Schneider

since the U.S. was already putting political pressure on authorities in Khartoum to halt the violence and was providing humanitarian aid to civilians, nothing more was required of it; the U.S. did not have to act to the extent that the Convention required because it was already pursuing narrow unilateral action. Similarly, although it is not formally labeled a genocide, Kurds are being killed en masse in Syria. While the U.S. has supported Kurdish rebels in the past, President Trump pulled American troops out of Syria in October 2019 on the basis that the conflict had “nothing to do with [the U.S.]”, effectively leaving the Kurds without means to protect themselves. A problem that feeds into this is the absence of a clear enforcement mechanism to make states comply with their obligation to prevent genocide. All states are equally obliged to prevent genocide, which leads to a bystander effect by which no one feels obliged to make the first move.

These are some of the reasons why Darfur stands as a painful reminder of the difficulty and political unwillingness of keeping the promise of “never again”.

Strengthening the UNCRC (Incorporation) (Scotland) Bill

This post is 2 of 2 by Dr Kasey McCall-Smith examining the UNCRC (Incorporation) (Scotland) Bill. This post highlights how stronger interpretive tools could strengthen the Bill and deliver a brighter future for children in Scotland. Dr McCall-Smith serves on the Expert Advisory Group on UNCRC Incorporation convened by the Children and Young People’s Commissioner Scotland and the Scottish Alliance for Children’s Rights (Together). @KMSonIntlLaw

 

In a previous post I presented some of the key triumphs of the UN Convention on the Rights of the Child (Incorporation) (Scotland) Bill (Incorporation Bill) that is currently before Scottish Parliament. This post suggests some ways in which the current Bill could be strengthened in terms of the interpretation of the UN Convention on the Rights of the Child (UNCRC) rights incorporated through Schedule 1 of the Bill. Expanding the interpretive scope further would better support the progressive realisation of children’s rights, shore up protection for children with intersectional vulnerabilities and ensure that Scotland becomes ‘the best place in the world to grow up’.

Match the Interpretive Tools Available to the Courts With Those of Scottish Ministers

One of the clearest ways in which the Scottish Parliament could strengthen the Incorporation Bill is to further enhance the interpretive tools available to courts when determining a question in connection with the UNCRC. At present, section 4 of the Bill outlines the ‘things’ that courts or tribunals ‘may take into account’ as: (1) the preamble of the UNCRC; (2) the articles directly incorporated through Schedule 1 of the Bill; and (3) provisions of the UNCRC and the articles that are not included in Schedule 1. The glaring gap is the failure to include the interpretive opinions or instruments of the Committee on the Rights of the Child (CRC) that oversees the international implementation of the Convention. These opinions/instruments include Concluding Observations on UK periodic reports, Final Views (on individual communications), General Comments and reports on general discussion days – in which the UK and Scotland have actively participated in both government and civil society capacities. Including these as interpretive reference tools is important in order to keep on top of international developments in children’s rights, progressively realise UNCRC rights and to ensure that interpretations in Scotland track the specific advice of the CRC in terms of its engagement with the collective UK and broader international community. Notably, if the UK were to ratify the Third Optional Protocol on an Individual Communications Procedure (addressed in s5), that process would generate further instructive opinions on the implementation of children’s rights in the UK that should, arguably, be a strong push factor for the UK.

The omission in section 4 of the Bill is intentional considering that Part 3 of the Bill brings these instruments in for the purposes of Scottish Ministers making, amending and remaking a Children’s Rights Scheme that will document the arrangements put in place to fulfil their duties outlined in the Bill. Section 12(2)(a) details that

(2)  In preparing the proposal, the Scottish Ministers—

 

(a) must have regard to

 

(i)  any report of the United Nations Committee on the Rights of the Child under paragraph 5 of article 44 of the Convention that the Scottish Ministers consider to be relevant, and

 

(ii)  any other reports, suggestions, general recommendations or other documents issued by the United Nations Committee on the Rights of the Child relating to the implementation of the Convention, the first optional protocol or the second optional protocol by the United Kingdom that the Scottish Ministers consider to be relevant, …

Though UNCRC Article 44(5) only make specific reference to the periodic reporting process, further practices, such as issuing general comments and holding days of discussion, has become a regular practice of the CRC and a key way in which the Committee can assess the most current information on children’s rights implementation. Section 12(2)(a)(ii) appears to accommodate the variable modalities of interpretation generated by the Committee but the granular reference to suggestions or general recommendations under UNCRC Article 45(d) implies that the same tools of interpretation are not available to the courts. The variable reference to the use of treaty body jurisprudence as an interpretive tool is further complicated in that General Comments are specified as a tool when reviewing a Children’s Rights Scheme in section 13(2) of the Bill but not expressly included when developing the Scheme under section 12.

While not viewed as binding by most States, the products of the treaty bodies are extremely important resources for interpreting children’s rights and UK courts have increasingly made reference to them when determining legal questions relating to children. Furthermore, general international law recognizes the role of the treaty bodies as the ultimate interpreters of their respective treaties. Clarifying that the treaty body jurisprudence should be included in the judiciary’s interpretation toolkit would help encourage culture change and reinforce the value of international human rights interpretation. Even if under Scots law the judiciary has the power to take anything it deems appropriate into account, if we are going to entrench the UNCRC in Scotland, there must be a tether to the jurisprudence of the CRC Committee.

Maximizing the Availability of Interpretive Tools

To be even more effective, the interpretive tools should be expanded to include relevant resources from other treaty bodies, such as the Committee on the Rights of Persons with Disabilities that oversees the Convention on the Rights of Persons with Disabilities. In cases where interference with children’s rights involves the intersection of various identities, cross-referencing across the treaties is the best way to ensure the highest attention to the individual’s needs. The recent experience of the right to education during the Covid-19 pandemic illustrates the value in maximizing the sources available in the interpretive toolkit.

During the UK lockdown one of the most common complaints was the breach of the right to education for children. Children with disabilities or socio-economic vulnerabilities or both were particularly impacted by the closure of the schools. While the Committee on the Rights of the Child has issued guidance on implementing the right to education (now rather dated), both the Committee on the Rights of Persons with Disabilities and the Committee on Racial Discrimination have provided far greater guidance in how to address the right to education for children that often suffer inequality due to their intersectional identities. To construct a minimum core to the right to education and offer guidance on how to deliver that under normal and extraordinary circumstances, such as those created during the pandemic, it is incumbent on decision makers to canvass the wide range of materials that are available. This does not mean that they must follow the treaty body interpretations to the letter. However, opening up the possible tools to which decision-makers may avail themselves is a clear step forward toward a holistic, human rights based approach to interpreting children’s rights.

Make it Stronger to Make Rights Real

The consistent political rhetoric about adopting the ‘gold standard’ children’s rights through incorporation of the UNCRC is not just about putting the static articles of a 30 year-old treaty into Scots law. It is about recognizing the dynamism and evolution in children’s rights and their capacity to exercise them in the pursuit of creating a stronger, more inclusive society. Effective implementation will require the synthesis of a broad range of law and policy that responds to lived experience. The interpretive tools offered by the UN human rights treaty bodies provides an easy starting point for decision-makers. Explicit reference to these tools across all interpreters of children’s rights under the proposed UNCRC Incorporation Bill would go a long way in ensuring that we make children’s rights real in Scotland.

Scotland Poised to Deliver Maximal Protection of Children’s Rights

This post is 1 of 2 by Dr Kasey McCall-Smith examining the UNCRC (Incorporation) (Scotland) Bill. The first highlights some of the key features of the Bill that will push for a better future for the children of Scotland. Dr McCall-Smith serves on the Expert Advisory Group on UNCRC Incorporation convened by the Children and Young People’s Commissioner Scotland and the Scottish Alliance for Children’s Rights (Together). @KMSonIntlLaw

 

Key Features of the UNCRC (Incorporation) (Scotland) Bill

After a decade of advocating for incorporation of the UN Convention on the Rights of the Child (UNCRC) in Scotland, there is much to celebrate following Deputy First Minister John Swinney’s introduction of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (‘Incorporation Bill’ or ‘Bill’) in Scottish Parliament on 1 September 2020. The Bill proposes direct, maximalist incorporation through transposition of the UNCRC to the extent possible under Scotland’s current devolution settlement. It makes good on the 2019 pledge by the First Minister to incorporate the UNCRC into Scots law before the 2021 elections. The Bill signals a massive forward step by Scotland to deliver UNCRC Article 4, which requires States Parties to ‘undertake all appropriate legislative, administrative, and other measures for the implementation’ of the UNCRC. If the Bill passes through Scottish Parliament relatively unchanged, Scotland will become the leader among the devolved nations of the UK in terms of children’s rights protections and also provide a strong signal to the rest of the world about its commitment to promote and protect children’s rights. This post examines some key features of the Incorporation Bill while the next post highlights where further improvements would be welcomed.

The ‘Maximalist’ Approach

For those who have worked many years to realise the potential of the UNCRC to stimulate law and culture change in Scotland, the Incorporation Bill delivers and remains true to the Government’s commitment to take a ‘maximalist’ approach. The Bill directly incorporates the UNCRC by reference and in Schedule 1 lists the relevant articles with some notable redactions from the original treaty text seen necessary to accommodate devolved competences. Not only does it directly transpose the bulk of the UNCRC articles, it further includes two of the optional protocols to the Convention (Optional Protocols on Children in Armed Conflict and on the Sale of Children, Child Prostitution and Child Pornography), it keeps open the possibility to easily add further articles of the Convention and protocols in the event of further devolution or ratification by the UK of the Third Optional Protocol on an individual communications procedure (s5).

Clarifying who is a child

Of the almost 5.5 million people in Scotland, just over 1 million meet the UNCRC Article 1 definition of a child as individuals aged 0 to 17 according to the Mid-2019 Population Estimates. Scotland has long struggled to maintain a clear definition of who is ‘a child’ qualifying for enhanced legal consideration in terms of both participation rights and protection due to its mixed approach of referring to ‘children’ as those under 16 and 16-17 year-olds as ‘young people’ depending on the subject-matter of a particular law. The Incorporation Bill adopts the UNCRC definition and confirms that all under-18s will have recourse to the UNCRC as incorporated. The Bill therefore excludes any room for modifying the definition under other Scots laws.

Respect and Protect

The UNCRC Incorporation Bill introduces a more comprehensive range of duties with which the variable arms of the Scottish Government will be required to comply. Firstly, the Bill requires all public authorities – including Scottish Ministers, courts, local authorities, health authorities, Children’s Hearings panels, etc (see s16) – to act compatibly with the UNCRC (s6). Secondly, section 11 of the Bill requires Scottish Ministers to develop, publish and review a ‘Children’s Rights Scheme’ detailing the arrangements they are putting in place to ensure they comply with their duties under section 6. The Bill further subsumes the Children and Young People (Scotland) Act 2014 duty on Scottish public authorities to publish reports on how they are ensuring compliance with the UNCRC. The change of language from ‘respecting’ under the 2014 Act to ‘ensuring’ is significant and should guarantee greater attention to implementation than ever before.

Enforcement

Under section 7 of the Incorporation Bill failure of a public authority to act or acting incompatibly with the UNCRC will give rise to a legal claim and enable the UNCRC to be raised in any legal proceeding (s7). Legalising the justiciability of children’s rights under the UNCRC is arguably the crowning achievement of the Bill. However, justiciability will only matter if the rights are promoted and reinforced through education, resources and culture change. Simplifying the understanding of the role of the UNCRC in law and how to access these rights will be essential to ensuring access to justice.

Following incorporation, all under-18s will be able to raise claims alleging that a public authority has contravened the incorporated UNCRC articles (s7) and all legislation raised before the courts will require interpretation in line with the treaty. This significant change in the protection of children’s rights will guard against the inconsistent interpretive references to the UNCRC that currently permeate Scottish jurisprudence.

As introduced, not only will Scottish courts have an obligation to determine breaches of the UNCRC, under section 20 courts may make a ‘strike down declarator’ against laws predating the commencement of the act. This will aid in rectifying existing laws that directly or indirectly run contrary to the UNCRC. Additionally, section 21 enables courts to deliver a ‘declarator of incompatibility’ for proposed legislation, thus protecting children’s rights before a conflicting law is adopted. If the Incorporation Bill passes through Scottish Parliament with these judicial capacities intact it will represent a new era in the protection and fulfilment of children’s rights in Scotland, with enforcement potential unparalleled in the rest of the UK.

An Unprecedented Opportunity for Scotland’s Children

The proposed UNCRC Incorporation Bill is poised to reshape the way in which government actors and courts use the UNCRC as a tool to respect, protect and fulfil children’s rights in Scotland. The only way for the Bill to deliver comprehensive, enforceable rights protections for children is through a multi-layered implementation approach with a long-term vision. When passed, the final Bill will set in motion further audits of existing law and the development of comprehensive policy guidance. Incorporation will not magically deliver the tripartite respect, protect and fulfil approach to children’s rights overnight, however, incorporation of the UNCRC can, and eventually will, be the touchstone for securing a better life for children in Scotland.

To read the second post on the Bill, click here.

‘Cybertorture’ – A New Frontier in Human Rights Application?

This blog is by Daniel Erhardt Nielsen, LLM Candidate in Human Rights at Edinburgh Law School. It presents some of the issues he examined during his work-based placement with DIGNITY (Danish Institute against Torture) over summer 2020.

 

New technologies and the online space are a double-edged sword for human rights. On the occasion of the UN’s 75th anniversary this year, the UN Secretary-General remarked that, while digital technologies help us advocate, defend, and exercise our rights, they are too often used to violate them. Such pronouncements invite us all – not least human rights scholars and practitioners – to explore these “new frontiers” and critically interrogate the meaning of terms like “cyber” within our fields of work and expertise.

Serious gaps remain in our understanding of what may be at stake in our increasingly digital world. This blog seeks to tease out some preliminary thoughts on what can be considered one such gap: How does the prohibition of torture and ill-treatment relate to violence committed using cyber-technologies?

Calls for Attention on Malicious Uses of New Technologies.

The idea that cyber-technologies could be used to violate human rights is nothing new. The problem has been deliberated among international political and judicial bodies for over a decade, and there is an ongoing effort by human rights practitioners and scholars to understand how international human rights law (IHRL) may protect against such violations.

Much of this work, however, has focused on how cyber technologies relate to the right to information, and freedom of opinion, expression, association, privacy, speech, and thought. Thus, only a narrow slice of the full spectrum of our rights and freedoms potentially affected by cyber-technologies has thoroughly been considered.

What is new is the idea that cyber-technologies may be used to inflict harm – commit acts of violence – severe enough to be inconsistent with instruments of IHRL. Only recently has the cyber-area been explicitly discussed in relation to the prohibition against torture under a UN mandate. In March, the Special Rapporteur on Torture (SRT) Nils Melzer highlighted “cybertorture” in the final section of his annual report to the Human Rights Council (HRC). He used the term to refer to the use of cybertechnology for the purposes of torture. As of today, this specific problem has been considered by remarkably few scholars.

What is Meant by the “Cyber-dimension?”

Inconsistent terminology is one of the major challenges to assessing how cyber-technologies can be used to commit harmful or violent acts. It is unsurprisingly difficult to try and comprehend any definite legal distinctions between terms like cyber-abuse, cyber-harassment, cyber-harm, cyber-ill-treatment, cyber-bullying, cyber-violence, cyber-crime, and cyber-torture.

UN Photo/Jean-Marc Ferre

First and foremost, we should distinguish between violence that is committed through cyber-technologies and violence that is enabled by cyber-technologies. It is the difference between sending death threats on social media, versus locating a person via a mobile application only to then verbally deliver the threats in person. In the latter instance, it seems as though technology is not inherent to the act itself. Hence, what is of interest here is the former – acts of violence through cyber-technologies. Could the orchestration of a continuous, targeted, personal defamation campaign across the internet resulting in social exclusion and mental suffering for the victim be considered torture or ill-treatment?

Torture is among the gravest of crimes, and the process of determining whether a specific act or pattern of violence is inconsistent with the prohibition of torture is a careful case-by-case assessment. As such, “cyber-violence” seems more appropriate for describing the phenomenon at hand than “cyber-crime” or “cyber-torture,” since it avoids prematurely qualifying a specific instance of online activity as a criminal act or as an act of torture or ill-treatment. It also seems more helpful to talk about a “cyber-dimension” to torture as opposed to “cyber-torture,” as the latter seems to indicate the existence of a new separate form of torture rather than a new means of committing torture.

Several areas of violence can in this way be said to have a strong cyber-dimension – violence against women and girls (VAWG), child sexual exploitation (CSE), racism and xenophobia, homophobia, harassment and bullying, shaming and defamation, etc.

The UN on Human Rights & Cyber Technologies

Both the HRC and General Assembly (GA) have repeatedly stated that “the same rights that people have offline must also be protected online.” Over the years, the GA has convened six Groups of Governmental Experts and an Open-ended Working Group, which have only made general statements on IHRL regarding cyber-technologies. Beyond the SRT, the Special Rapporteurs on the Sale of Children and Child Pornography and Violence against Women have also addressed acts of severe violence committed through the internet.

Legal Standards & Jurisprudence

There are no legal standards nor any case law directly addressing acts of torture or ill-treatment through cyber-technologies. The question of how the prohibition of torture and ill-treatment may apply in relation to cyber technologies is an entirely new area of IHRL application. Any attempt to provide and answer will therefore necessitate a great deal of fact-finding and legal interpretation.

A few tentative statements can be made about the phenomenon to focus the scope of future jurisprudential analyses. First, instances of cyber-violence are likely to be perpetrated by non-state actors. Second, they are committed remotely and non-physically. Third, they seem to disproportionately affect women and minorities. Therefore, relevant jurisprudence should especially address the positive State obligations related to torture and ill-treatment, acts of violence committed through non-physical means, and areas of violence associated with specific vulnerable groups, such as VAWG, CSE, racism and xenophobia, homophobia, etc.

The Way Forward

Explorations into cyber-violence as a new area of IHRL application must engage in comparative legal interpretation – mapping exercises that take established rules and principles and lets them inform us about this largely unaddressed phenomenon. Judicial bodies qualify an act as torture through case-by-case assessment in accordance with definitional criteria set out in the UN Convention against Torture or other applicable national legislation. A specific instance of cyber-violence should be treated similarly.

As scholars and courts have begun recognizing non-physical forms of torture and ill-treatment, have cyber-technologies facilitated yet another adaptation in the techniques of torture? Is it the latest in a long line of so-called “stealth torture techniques?”

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.

 

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.

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.

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