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The ECHR and the 'living instrument' doctrine

In Bright Blue’s new report ‘Fighting for freedom?’, former High Court Judge and QC Sir Michael Tugendhat assesses the historic and future relationship between conservatism and human rights. In opposition to previous Conservative Party commitments to repeal the Human Rights Act (HRA) and the Prime Minister's’ scepticism of the European Convention on Human Rights (ECHR), Sir Michael defends the UK’s current human rights framework, arguing that the Conservatives should not pursue either of these changes.

The report also addresses the seven main Conservative critiques of the UK’s current human rights framework that Sir Michael identifies. These include:

  • International courts instructing the UK

  • A higher body of law than UK law (the ECHR)

  • Mission creep and judicial activism of European judges

  • The undermining of UK courts

  • The undermining of the UK Parliament

  • Giving prisoners the right to vote

  • The undermining of British security

Sir Michael responds to each of these criticisms methodically, demonstrating the mistakes and bad faith that often motivate them, while also conceding the need for reform in various specific areas.

Perhaps the most contentious of these criticisms is the idea that the ECHR has been guilty of ‘mission creep’ over the past 70 years at the hands of activist European and British judges.

This claim was made most prominently in ‘Protecting human rights in the UK’, a report by the Conservative party proposing changes to Britain’s human rights laws. The report argues that the European Court of Human Rights (ECtHR) has developed ‘mission creep’ by adopting “a principle of interpretation that regards the Convention as a ‘living instrument’.” This principle allows the court “to expand Convention rights into new areas, and certainly beyond what the framers of the Convention had in mind when they signed up to it.”

This criticism of the ECHR as a ‘living instrument’ is misplaced and shows little understanding of how laws are made and interpreted. Treating the ECHR as a ‘living instrument’ means conferring to the words of the convention the meaning they bear at the time the ECtHR is making a decision, rather than the meaning the words might have borne at the time the ECHR was entered into by the framers in the early 1950s, or the original intent of the framers (where that is discoverable).

The judicial activism that the ‘living instrument’ doctrine requires should not be regarded a fault, as it is essential if laws are to remain relevant. UK common law is itself a body of law that has developed through judicial activism, and necessarily so. First, because there is no foundational document setting out the common law which was framed at a particular date. Second, because much of common law was formed during the middle ages, when standards were very different from today. If judges had not been as activist as they were in the sixteenth to eighteenth centuries, we would not have the common law protection of human rights which was the source for the ECHR.

Bearing the above in mind, the criticism that the ECHR has expanded “beyond what the framers of the Convention had in mind when they signed up to it” starts to look distinctly unconvincing. The framers of the ECHR would have understood that it would need to be applied in circumstances that were unforeseeable at the time, and that it would therefore have to be treated as a ‘living instrument’. Since the UK signed the ECHR in 1950 there have been significant changes in attitude to matters such as capital punishment and discrimination on grounds of gender or sexual orientation. The ECHR must also now be applied in relation to things which did not exist in 1950, such as CCTV, IVF, the internet, various medical advances, and much more besides. Treating the ECHR as a ‘living instrument’ is essential if the law is to adapt to these changes.

It is difficult to find fault with the ‘living instrument’ doctrine in principle, and upon closer examination, most of the objections towards the ECHR by Conservatives involves criticism of individual cases, rather than the ‘living instrument’ doctrine itself. Conservatives seem to object not so much to judicial activism, but to instances of judicial activism on issues where they disagree with the judgement of the ECtHR. For instance, the ECtHR has been activist in its interpretation of article 10 with little objection by Conservatives, as it has resulted in increased press freedom in relation to matters of public interest.

However, there has been widespread criticism of the ECtHR’s decision that the UK’s blanket ban on voting for prisoners is in violation of Protocol 1 of the ECHR. This decision has been used as an example of a case in which the ECHR has been interpreted too broadly, and resulted in undue judicial meddling in politics. In Hirst v UK (No 2), the ECtHR accepted that depriving prisoners of the right to vote can be justified in serious cases. But it held that the prohibition in the UK violated the rights of some prisoners because the disqualification was “irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances”.

Whilst a reasonable person could object to this decision by the ECtHR, the principle that the ECHR should be regarded as a ‘living instrument’ is not the problem here, rather it is the application of this principle to a particular case. Therefore, the claim by the Conservative Party that the ‘living instrument’ doctrine is a powerful objection to the ECHR is unfounded. Furthermore, whilst the ECtHR may have applied the doctrine too liberally in some cases, in the vast majority of instances the ECtHR is simply updating the law to maintain its relevance in the face of changing attitudes and circumstances.

Freddie Lloyd is a research assistant at Bright Blue

Bacha bazi: Afghanistan’s darkest secret

Bacha bazi, or ‘boy play’, is an Afghan custom that involves boys as young as nine being forced to dress as women and to dance seductively for an audience of older men. These young boys are typically owned by wealthy patrons, and are regularly the victims of sexual assault and abuse. Bacha bazi was common, particularly in rural parts of Afghanistan, for hundreds of years, before being outlawed by the Taliban government in the 1990s. The practice underwent a resurgence after the overthrow of the Taliban by US forces in 2001, and whilst efforts have been made over subsequent years to stamp out the practice, they have been largely unsuccessful due to government corruption and the reluctance of the US to involve themselves in domestic Afghan affairs. In January 2017, the Afghan government belatedly moved to criminalise bacha bazi, and is finally beginning to act to prevent abuse and protect victims, with mixed success thus far.

History of the practice

Bacha bazi has antecedents in ancient cultures throughout central Asia. However, the practice appeared in its modern form in the 19th century. It typically involves wealthy Afghans, often Pashtuns, who acquire young men or boys for the purposes of sexual entertainment and exploitation. Women are prohibited from working as dancers or entertainers in many parts of Afghanistan, and young boys are used instead. These boys, known as bacha bareesh, or ‘beardless boys’, are generally between ten and eighteen years old, and tend to come from poor backgrounds. Parents are persuaded to hand over their sons for financial reimbursement, with the promise that they will be given work and an education. Ostensibly, the young men work as dancers at private parties, however many are coerced into having sexual relationships with their masters. Boys who refuse to do so are often raped, and, in some reported cases, murdered if they manage to escape. The boys are also generally deprived of education, ruining their life prospects when they are eventually discarded after having become too old.

According to the Afghanistan Independent Human Rights Commission (AIHRC), victims are often beaten, with injuries including internal haemorrhaging, protrusion of intestines, throat injuries, heavy internal bleeding, broken limbs, fractures, broken teeth, strangulation, and in some cases, death. Unsurprisingly, the AIHRC found that 81% of victims want to leave the so-called ‘profession’, which is reality constitutes human trafficking.

During the Afghan civil war, the Taliban made bacha bazi illegal as it was regarded as un-Islamic and incompatible with Sharia law. From 1993, until the US invasion of 2001, the practice was punishable by death.

Whilst the 2001 invasion of Afghanistan by the US improved the prospects of certain oppressed groups in Afghanistan, for example women, it actually increased the prevalence of bacha bazi. The Taliban’s harsh punishments for those accused of participating in the practice were no longer enforced due to the vacuum of power left by the war.

Although child abuse remained illegal, the practice of bacha bazi itself did not, which provided cover for sexual abuse. Government complicity in the practice also quickly became a problem. Many high-ranking officials reportedly engage in bacha bazi and are rarely prosecuted by their peers.  A 2014 report by the AIHRC assessed that most people who engage in bacha bazi paid bribes to, or had relationships with, law enforcement, prosecutors, or judges that effectively exempted them from prosecution.

Throughout the period of US occupation, US commanders also made little effort to stamp out the practice. Lance Corporal Buckley was reportedly told to “look the other way because it’s their culture”. The US armed forces had a policy of ignoring child abuse committed by allied Afghan militias in order keep them on side during the fight against the Taliban. Special forces commander Dan Quinn was relieved of his command and withdrawn from Afghanistan after he beat up an American-backed militia commander for keeping a boy chained to his bed as a sex slave.

The spokesman for American command in Afghanistan defended this policy, arguing that “allegations of child sexual abuse…would be a matter of domestic Afghan criminal law… There would be no express requirement that US military personnel in Afghanistan report it.” However incidents such as the Dan Quinn case placed new scrutiny on the policy of ordering soldiers to ignore child sexual abuse by their Afghan allies, with NGOs such as Human Right’s Watch arguing that the US government’s bankrolling of the Afghan government gives it both the responsibility and the leverage to stop the continuation of this abuse.

Recent developments

International condemnation regarding the lack of action on bacha bazi has grown in recent years. In 2014, the UN Special Representative for Children and Armed Conflict, Radhika Coomaraswamy, told the General Assembly that “laws should be passed, campaigns must be waged and perpetrators should be held accountable and punished”.

A recent report by the US Special Inspector General for Afghanistan Reconstruction (SIGAR) also strongly criticised Afghan government officials for active complicity in “the sexual exploitation and recruitment of children by Afghan security forces”.

However, it is generally accepted that the problem is not getting any better. Suraya Subhrang, the child rights commissioner at the AIHRC stated this year that "before, bacha bazi existed in some special areas, but now it is everywhere. It is happening in Takhar [province] and the rest of the north".

These abuses continue despite President Ashraf Ghani’s June 2016 pledge to organise “thorough investigation and immediate action” concerning bacha bazi abuse by military personnel. Ghani promised this January that bacha bazi would be criminalised, with punishments including up to seven years in jail for sexual assault and capital punishment for cases that involve more than one boy being violated. The penalties and guidelines, according to the President’s senior adviser, would be listed in an entire chapter focusing on criminalising bacha bazi in Afghanistan’s new penal code. However, this promise has yet to result in any concrete action thus far.

If it does occur, criminalisation would be a positive step, however experts argue that it would not in itself be sufficient, as the government does not have the capacity to enforce the criminalisation of the practice. Professor Jasteena Dhillon, an academic expert on Afghanistan, recently argued that reform can only come through a change in culture, and that this will necessarily involve in-person negotiations with locals, and condemnation by religious leaders.

Conclusion

Bacha bazi is an under-reported human rights problem that is causing huge, and increasing, suffering to the most vulnerable children in Afghanistan. The lack of action by the US and Afghan governments constitutes a dark stain on their record as they attempt to create a more free and safe society after the war. Whilst the rhetoric of both governments signifies an increased engagement with the problem, swift action must now follow to protect the young boys of Afghanistan from further abuse.

Jesutofunmi E. Somade is on work experience at Bright Blue, organised by the Social Mobility Foundation

The new ‘war on drugs’ in the Philippines

During his campaign for the presidency of the Philippines last year, Rodrigo Duterte made the chilling promise that if elected he would kill 100,000 drug dealers as part of his plan to end the supply of illegal drugs. At the time, these statements were dismissed by many commentators as populist sloganeering against a hated criminal class. However, since taking office in May last year, Duterte has gone about implementing his election pledge, instigating a campaign of police and extra-judicial killings of those associated with the drug trade that has left over 7,000 Filipinos dead. But there is strong evidence that the justification for this crackdown is much weaker than Duterte suggests, and that he is using it as a pretext for consolidating his own political position.

Duterte’s ‘law and order’ campaign

Duterte describes himself as a radical socialist, however his electoral appeal came in a large part from his vociferous defence of traditional law and order values in a country that remains staunchly socially conservative. During his tenure as the mayor of Davao, a city on the southern island of Mindanao, he claimed to have created “one of the safest cities in the world” through his violent policies, which included the use of ‘death squads’ to kill those suspected of involvement in the illegal drug trade.

An important element of Duterte’s presidential campaign was his pledge to apply these policies to the entire country, insisting that they were required to combat the country’s apparent drug crisis. “In three to six months,” he said, “I will stop drugs and criminality”. This narrative proved extremely popular with the electorate, and in the June 2016 presidential elections Duterte received almost twice as many votes as his nearest rival.

Despite this popular endorsement, the narrative created by Duterte bears little resemblance to reality. Firstly, Duterte’s claim to have created “one of the safest cities in the world” in Davao is a fabrication. Duterte first became mayor in 1988, and was in charge for the majority of the next 30 years. According to official data released by the Philippines National Police, Davao had the highest rates of murder, and the second highest rates of rape, of any city in the country between 2010 to 2015. High crime rates are likely a result of Duterte’s decision to tolerate, and often encourage, vigilante attacks on criminals, with human rights groups estimating that 1,400 extra-judicial killings of street children and alleged criminals have taken place since 1998.

Secondly, Duterte’s justification of his policies as a means of saving a country riddled by addiction and drug-related violence is also questionable. He claims that there are currently 4 million drug users in the Philippines, and projects that there could be as many as 10 million by 2020. However, the country’s own drug authorities put the figure much lower. Furthermore, the United Nations Office on Drugs and Crime estimates the prevalence rate for drug use by Filipinos at 2.3%, which is roughly half the global average. Duterte’s policies therefore appear to be an extreme response to an exaggerated problem.

Duterte’s presidency

Since becoming President last May, Duterte has fulfilled his campaign promises by expanding his ‘war on drugs’ from Davao to the rest of the Philippines. It is estimated that between 7,000 and 10,000 Filipinos have been killed by police or vigilantes so far. The government argue that police only kill in self-defence during anti-drugs operations, and claim that they do not condone extra-judicial killings by vigilantes. However human rights groups claim that the majority of police killings are executions, which the police justify by planting drugs or weapons on the victims, and that the vigilante killings are incited by the authorities. During speeches, Duterte has regularly encouraged Filipinos to carry out extra-judicial killings. His disavowal of any association with the vigilantes is, therefore, unconvincing.

Amnesty International investigated 33 incidents of drug-related killings in 20 cities across the country. They found that the vast majority of the killings were “unlawful and deliberate killings carried out by government order or with its complicity or acquiescence”. They also found that police officers routinely “kill in cold blood unarmed people suspected of using or selling drugs”, and then plant evidence to suggest they acted in self-defence. Amnesty concludes that the government is guilty of widespread breaches of human rights, such as the right to life and the right to a fair trial.

As part of his ‘war on drugs’, Duterte has also reinstated the death penalty for drug offences, lowered the age of criminal responsibility to ten, and introduced mandatory drug tests at schools and workplaces.

Finally, the drug war has provided a pretext for Duterte to crush political opposition. The opposition mayors of three cities have been killed during anti-drug operations, and Duterte moved last week to abolish the Philippine Commission on Human Rights, an independent government agency that has been the harshest critic of Duterte’s policies.

Despite the chaos and growing authoritarianism Duterte’s drug policies have led to, they remain popular with the public. According to an April 2017 poll, 78% of Filipinos are satisfied by the government’s crackdown on illegal drugs, only slightly down from 85% last December.

International reaction

Condemnation from human rights groups has been immediate and sustained, with much of the information we have only becoming available thanks to the work of NGOs that monitor the number of killings.

There has also been widespread international censure: for example, the EU delivered a resolution in March 2017 that condemned Duterte’s crackdown on political opponents and human rights groups.

However, criticism from the US and UK has been less forthcoming. President Trump praised Duterte for doing “an unbelievable job on the drug problem” in a leaked phone call, while Liam Fox recently referred to the “shared values and shared interests” of the UK and the Philippines during a trade visit to the country. Neither Trump nor Theresa May has officially condemned any aspect of Duterte’s policies, and the Philippines continue to be considered a key ally in the region.

The Philippines has a rapidly expanding economy and has recently discovered natural gas reserves. It is therefore considered a valuable future trade partner. These factors suggest that an increase in international pressure on Duterte to halt his bloody ‘war on drugs’ is unlikely.

Freddie Lloyd is a research assistant at Bright Blue

The consequences of Trump’s ‘global gag rule’

President Trump has caught the headlines again today after his failed attempts to repeal the Affordable Care Act, or ‘Obamacare’. This was not the first controversial Trump policy to dominate the headlines. Previously, his travel ban on citizens from seven Muslim majority countries had faced numerous legal challenges. However, Trump’s reintroduction and extension of the so-called ‘Mexico City policy’, which bars international non-governmental organisations (NGOs) from receiving US government funding if they perform or promote abortions, has demanded fewer column inches. This is despite the likelihood that it will have far reaching and potentially damaging consequences. Millions of women around the world rely on NGOs for family planning and abortion advice, the loss of US government funding for these NGOs will severely curtail their ability to offer these services. 

The Mexico City policy

Restrictions on foreign aid to NGO’s involved in abortion were first introduced by President Reagan in 1984, and were announced at a United Nations International Conference in Mexico City. The policy was then named for the city where it was announced. It stipulates that in order to receive US government global family planning aid, NGOs must certify that they will not “perform or actively promote abortion as a method of family planning”.

The policy is also known as the ‘global gag rule’ since it prevents NGOs that receive US funding from discussing abortion. If these NGOs use funds from any source for this purpose (including funds from outside the US), they become ineligible for US global family planning aid.

The policy prohibits NGO’s that receive this aid from providing abortions, from providing advice or information about abortions, or from conducting public information campaigns about abortion as a method of family planning. However, the policy does allow NGOs to give information about abortions in cases where a woman has already decided to have an abortion, and in cases where a pregnancy was the result of rape or puts a woman’s life at risk.

Since its introduction, the policy has proved to be extremely partisan. It was rescinded by President Clinton in 1993, then reinstated by President Bush in 2001, before being rescinded a second time by President Obama in 2009.

However, Trump has not just reinstated the policy but has also dramatically expanded its scope and application. It had in the past only applied to US global family planning funds, which make up about $607.5 million of the aid budget. Trump has expanded the policy to cover the entire $8.8 billion US aid budget for global health assistance. The policy will now therefore apply to HIV/AIDS programmes, malaria programmes and even to water, sanitation, and hygiene programs.

The impact of this change is likely be dramatic since many organisations that provide services in the above areas also provide advice on abortion as a method of family planning. For the first time, the policy will affect not just family planning organisations but global NGOs such as Save the Children, WaterAid and the International HIV/Aids Alliance

Consequences of the policy

Many NGOs have stated that they will continue to talk about abortion, and therefore lose US government funding. Examples include Marie Stopes International (MSI) and the International Planned Parenthood Federation (IPPF), who have both already announced that they will not comply with the ‘global gag rule’, and will therefore lose their US government funding. MSI estimates that the resulting loss in its services will cause more than six million unintended pregnancies globally during Trump’s first term.

Many of the organisations that will lose this funding also have important roles in the provision advice on all areas of sexual health and family planning. For example, this April the Trump administration announced that it would strip US funding for the United Nations Populations Fund (UNFPA) due to unsubstantiated reports of UNFPA involvement with coercive abortion in China. The UNFPA is the world’s largest provider of contraceptives. It provides reproductive health services to 12.5 million women in more than 46 countries, and is at the forefront of the battle against HIV/AIDS in Africa. The US was previously the third largest donor to the organisation, and the loss of this funding will necessitate a reduction in its programmes.

Other NGO’s will cut abortion counselling to continue receiving US aid. Such NGOs will no longer be able to provide a service that has proved extremely effective in helping women throughout the world. A large and growing body of evidence shows that one of the most effective ways to reduce poverty and improve education is by giving women control over their reproductive cycle through the provision of contraceptives and the availability abortion. In parts of Africa, girls who become pregnant are often required to leave school which makes them significantly more likely to be in poverty in later life.

The Mexico City policy is unlikely to succeed in its stated aim of reducing the number of abortions, instead it will force women into unsafe abortions outside of the official medical system. A Stanford University study examining the policy during the Bush years found that countries most affected by the policy had significantly increased rates of abortions whereas the rates remained relatively stable in countries less affected by the policy. Thirteen percent of maternal deaths in developing countries are caused by unsafe abortions.

Conclusion

Evidence suggests that the cumulative effect of the Mexico City policy will be to reduce access to contraception, safe abortions, and programmes that combat HIV/AIDS. Whilst various countries and organisations have stepped forward to help fill the funding gap left by the policy, such as Sweden and the Gates Foundation, they will be unable to match the levels of funding previously offered by the US. Furthermore, Trump’s May budget included a proposal to completely eliminate funding for all US global family planning aid. Whilst this proposal is expected to be weakened during Congressional budget negotiations, any cuts to family planning will hamstring global efforts to fight poverty and HIV.

Freddie Lloyd is a research assistant at Bright Blue

An Italian Problem

Every summer, from June until September, Italy serves as the front line in Europe’s efforts to deal with the ongoing refugee crisis. Long from the front pages of major newspapers, this humanitarian crisis has rumbled on in the background, a steady stream of thousands fleeing across the Mediterranean, mostly from Libya, with 2,030 having died so far this year. This is a burden that Italy views as unfair, and a burden they feel is exacerbated by the actions of their European partners, which has led to divisions within the bloc over how to react to the crisis. While Europe seeks an agreement, the busiest period in the trafficking of refugees across the Mediterranean continues unabated, and with a huge humanitarian toll.  

The Current Situation

Over 500,000 people have landed in Italian ports as refugees since 2014, the largest portion of these people arriving in the summer months, putting significant annual strain on Italian asylum policy. This comes after France, Switzerland, Hungary, Croatia, and Slovenia have all either partially implemented or wholesale adopted border closures in order to stymie the flow of refugees from Greece and Italy into their countries. The situation between Italy and its neighbours has deteriorated sharply in the last couple of years. The Mediterranean country got into a spat with Switzerland following the country’s decision to clamp down on the number of refugees crossing the Swiss-Italian border in the summer of 2016. In the last few weeks however, Italy’s relations with its neighbours have worsened sharply, after seeing a 20% rise in the number of refugees crossing the Mediterranean compared to this time last year.

In response to the on-going situation, and the lack of any concrete action taken by the EU to alleviate it, Austria announced it was preparing to send 750 soldiers to secure border crossings with Italy. The soldiers, and armoured vehicles, are stationed near the Brenner Pass, and would be ready for deployment within 72 hours should a ‘migration emergency’ trigger Vienna’s decision to block the crossing. While Austria pursued a similar strategy with Slovenia in 2015, the fact that an EU foreign minister openly condemns the lack of control over the crisis, and threatens to contravene the continent’s commitment to free movement and open borders, has caused concern. Italy summoned the Austrian ambassador, who stood by the country’s position, which many claim has been partially affected by Austrian elections in the autumn of 2016, where the Freedom Party of Austria, a right-wing populist party, came close to securing the Austrian Presidency.  

Response

In the face of division amongst its members, the EU is set to meet several times in the coming weeks to try and reach some sort of agreement on how to diffuse the situation and avoid a situation as bad as previous summers, which led to thousands of deaths and strained services in Mediterranean countries. While a previous EU agreement committed to resettling 160,000 refugees, only 12,000 have so far been settled. Italian Prime Minister Gentiloni accused other European nations of “looking the other way”, including prominent members such as France. In response, the EU has launched legal action against the Czech Republic, Hungary, and Poland; all of whom have failed to meet their refugee target.

The pace of EU action has not proved sufficient in Italy though, and the country has touted some radical policies to try and deal with the crisis on its own. One such policy that was floated was a parallel of Australia’s refugee system, where they would turn away any boats from their shores that were not affiliated with their own coastguard, which many assume would lead to similar offshore detention centres to  the Manus Island detention centre in Papua New Guinea. Human rights groups have reacted angrily to such suggestions, claiming that aid is the obligation of the country most immediate to the crisis, which in this case would be Italy. The rise of Silvio Berlusconi’s political career from the ashes of his resignation amid scandal, on a platform that promised to put an end to this series of humiliating and debilitating crises, has injected some urgency into Italy’s politicians to address the situation.

In response to these political developments and condemnation from human rights groups, Italy announced plans to subject non-governmental organisations (NGOs) operating in the Mediterranean to a code of conduct drawn up by the Italian Government, similar to the one used by its own coastguard. This will essentially cede control of the humanitarian situation in the region to the Italian Government. This move comes after accusations from Libya however that these NGOs create a pull factor for refugees, and are helping destabilise Libya, and drive the large number of deaths in the region. Furthermore, NGOs have been accused of violating international law and operating in Libyan territory without oversight or permission. This is another bone of contention Italy has with its European neighbours, whose NGOs are often the ones disembarking refugees on its southern shores, helping to create and refusing to help solve the problem.

The situation in Italy is at risk once again of boiling over into a broader crisis, as tensions rise between European partners, and the country’s electorate signals an appetite for decisive action. It is against this backdrop, that the EU will meet to decide future refugee policy.

Neil Reilly is a research assistant at Bright Blue

The persecution of Rohingya muslims in Myanmar

Myanmar recently entered the 69th year of what is considered to be the world’s longest running civil war. There are at least 15 armies involved in the conflict against Myanmar’s government, each representing a different ethnic group or region, and each involved in a series of fragile alliances and ceasefires. One aspect of this conflict that has received particular international attention in recent years concerns alleged human rights abuses by Myanmar’s armed forces against the Rohingya Muslim minority in the eastern state of Rakhine. This month the State Counsellor, and de facto leader, of Myanmar Aung San Suu Kyi announced that she would refuse to allow a proposed UN fact-finding mission permission to enter Myanmar to investigate these allegations, further increasing suspicion concerning the severity of the offences taking place in the region.

A troubled history

The Rohingya are a Muslim minority group in Myanmar, a country in which roughly 90% of the population identify as Buddhist. They have lived on the western coast of Myanmar in the state of Rakhine since the 15th century, with their numbers increasing dramatically through immigration from neighbouring Bengal during British rule. Throughout this time there has been tension and sporadic violence between the Rohingya and native Burmese groups, such as the Rakhine Buddhists.

This ethnic tension increased throughout the 20th century. During the Second World War, the Rohingya sided with, and were armed by, the British; whilst the Rakhine Buddhists generally fought on the side of Japan, as they believed the Japanese would offer them independence if victorious. After the British reclaimed Myanmar, the Rohingya unsuccessfully demanded that Rakhine be annexed to Pakistan; the legacy of these events served to divide the groups even further.

Since the Second World War, the situation of the Rohingya in Myanmar has steadily worsened against a background of almost continuous ethnic warfare throughout the country. The civil war began in 1948, immediately after Burma gained independence from Britain. Initially the conflict involved a fight for power between the newly formed nationalist government and communist rebels; there was also a second conflict between the government and the separatist Christian Karen minority. Over the decades these conflicts have multiplied, and now involve upwards of 15 armies and separatist groups.

Fighting in Rakhine state has been sporadic, with most of the conflict in the civil war involving separatist groups in the east of Myanmar. However armed Rohingya insurgency movements have existed in various iterations throughout this time, although they have never numbered more than a few hundred soldiers, and have offered little threat to the nation’s military. 
In spite of this limited threat, the actions of these small resistance forces have often been used by the military as a pretext for repressive measures against Rohingya civilians. For example, in 1977-78, 200,000 Rohingya fled into Bangladesh due to brutality and repression by Myanmar’s army, before eventually being repatriated back to Rakhine state. Since this period, neither Bangladesh nor Myanmar have been willing to accept the Rohingya as citizens, so the process of refugees fleeing and then being forcibly repatriated has been repeated several times, most notably in 1992, and again over the last few years.

Recent developments

The latest phase of the conflict in Rakhine began in 2012 with a series of anti-Muslim riots in the north of the state, encouraged by some local political and Buddhist groups. Conservative estimates suggest that hundreds of Rohingya were killed (including 70 in one day in the village of Yan Thei) and 140,000 were displaced. The role of the Burmese army in the riots is unclear, however Human Rights Watch suggests that “all of the state security forces…are implicated in failing to prevent atrocities or directly participating in them, including…the army and navy”. Furthermore, the authorities did not prosecute anyone for the human rights violations carried out during the riots, feeding the idea that Rohingya Muslims could be attacked with impunity.
In April 2016, Nobel peace prize winner and democracy campaigner Aung San Suu Kyi was elected as State Counsellor for Myanmar with the promise that she would transition Myanmar away from military rule, and work to end the civil war. Suu Kyi initially made concerted attempts at a rapprochement between the various parties in the conflict, for example by creating a government advisory committee on Rakhine chaired by Kofi Annan and by organising a series of peace conferences involving all sides in the conflict, the most recent of which took place in May 2017. 

However in general her response to the violence against Rohingya Muslims has been strongly criticised by human rights groups. She did not condemn the 2012 riots and repeatedly refused to acknowledge the evidence of state-organised violence against the Rohingya. This refusal is most likely an attempt to keep the still powerful generals on side, and to maintain support amongst Myanmar’s Buddhist majority, who largely support the army’s actions in Rakhine.
Her inaction on this issue became particularly obvious during the most recent escalation of the conflict, which began in October 2016 after nine Myanmarese border officers were killed by Rohingya militants during an attack on a military outpost. The response by Myanmar’s military forces was swift and brutal. It has been estimated that since November 2016 over a thousand Rohingya have been killed and over 168,000 have fled abroad. A report by the UN special rapporteur on human rights in Myanmar, based on interviews with displaced Rohingya, contains multiple accounts of child killing, gang rape and other human rights violations. These estimates are necessarily uncertain as a clear picture of the extent of the violence is not possible because journalists and aid workers have been prohibited from entering the state since the conflict began, despite the fact that the military claims the conflict ended in February 2017. 

Very recently in May 2017, the UN belatedly led a fact-finding mission to investigate these allegations against Myanmar’s military forces. However this week, Aung San Suu Kyi has rejected this mission, saying that it would create “greater hostility between different communities”. The situation therefore shows little sign of improving, with a report by the International State Crime Initiative even suggesting that an escalation into genocide against the Rohingya is possible. 

Conclusion

Violence against the Rohingya appears to be on the increase, with elements of the government and military in Myanmar seemingly set on driving the group out of the country. The initial hope of many that Aung San Suu Kyi would prevent further ethnic violence has proved naïve, as internal politics in Myanmar militates against defending an unpopular minority. Whilst this issue is receiving increased media coverage in the West, there appears to be little prospect of action by the international community against Myanmar. Currently the best hope for the Rohingya is that the UN develops a tougher stance against Myanmar, or that other regional powers become more amenable to accepting refugees.
 

Comrade wolf: Russia’s manipulation of Eastern European

In 2006, President Putin compared America’s apparent insatiable hunger for expanding its influence in the world to “comrade wolf”, an allusion to America dominating smaller nations in an apparently friendly way. Now however, as former Warsaw-Pact states face an incredible assault on their fundamental rights to a free media and fair elections, all under the guise of defending ethnic Russians, it is Putin who is accused as acting as the wolf in sheep’s clothing. While the West worries about its ability to defend its own democratic institutions from Russian interference, Eastern European countries are facing the real and present danger that Russian meddling could entirely destabilise their often fragile political order.

Origins

Vladimir Putin’s defining foreign policy objective can be described simply as restoring Russian prestige abroad, and for him this means consolidating the country’s influence in its former territories in Eastern Europe and the caucuses. In 2007, the Kremlin made early use of its foreign subversion infrastructure in a coordinated attack on Estonia. The cyber attack took down critical pieces of government infrastructure, including banking and media services, and was intended to spread misinformation and drive a policy change towards the relocation of a Soviet memorial.

However, a large, singular attack was not deemed effective, and the Kremlin honed its subversion infrastructure over the last decade, coming up against tests in Georgia and Ukraine. Georgia’s success in persuading key policymakers around the world of their victimhood was a sharp wake up call to Russia that they would need sustained subversion in order to establish influence and control over its neighbours, and there was subsequently a surge in funding for the programme and the number of people involved.

Actions in Europe

Leaked documents from Russia’s security services allege that the Kremlin has - since at least 2008 - had a strategic goal of undermining former Warsaw-Pact nations through media manipulation and political interference, with a focus on the nations of former Yugoslavia.

In Macedonia and Montenegro, two nations seeking to join NATO (the latter of whom was admitted last week), Russia’s presence has been particularly pronounced, as it attempts to keep the two countries neutral. While the post-Cold War consensus allowed the establishment of functional political systems in these countries, less attention was paid to the structure of the media, a loophole Russia has been able to exploit.

In Macedonia, following the collapse of the Russian-backed Government, a centre-left coalition with two Albanian parties has been sworn in, and Russia is beginning to step up its interference in the country. Following the investment in cultural ‘friendship’ centres in the country, leaked papers show Russian spies in the Embassy bribing media officials, and attacking the new Government for allegedly wanting to create a ‘Greater Albania’. This has stoked deep ethnic tensions in Macedonia, which boiled over in April 2017 when the then opposition leader, now Prime Minister, was beaten up by a mob of nationalists in the Parliament. Russia has also used its influence to peddle stories of EU and US meddling in the election of the new Government, helping to delegitimise an already unstable coalition.

Scandinavia has seen extensive media subversion too, with the Russian press in Finland perpetuating entirely fictitious stories of ethnic-Russian mothers having their children seized by Finnish authorities. As Sweden mulled joining NATO, Russia spread stories online in the country about the potential negative ramifications of such an action, an indirect way of lobbying the government, by stoking public fear.

All of these tactics have been used to their full destructive force in Ukraine, where a joint military and subversion strategy has successfully destabilised the entire country. State-run news in Russia invented a story about Ukrainian people crucifying a young child, helping commit the wavering Russian public to the state’s actions in Ukraine. Russian TV channels were in overdrive in the country spreading absurd fake stories of NATO mobilising in the country, the barbarism of ethnic Ukrainians, all to legitimise Russian intervention and undermine the Ukrainian Government.

The European response

Eastern European countries are faced with an enormous task in attempting to respond to and defend themselves from Russian subversion of their media and politics. However, they have already made some early attempts.

Following Putin’s crippling attack on Estonia, the country introduced a national education programme to counter Russian subversion, and in partnership with NATO allies, they are distributing their national strategy to similarly affected countries. These nations stress the importance of a unified, national message to counter Russian propaganda – however this comes at the cost of a free, impartial and critical press to hold government to account.

The European level response has thus far been quite weak. While the EU has launched Russian-language media channel East Stratcom to counter propaganda, it is already coming under pressure from a lack of funding and a lack of cohesive messaging from all European nations, who disagree about the exact measures and strategy that should be used.

With Emmanuel Macron’s ascendancy to the French Presidency, and the hard line he has taken on Russia, it is hoped that further actions will be taken to counter Russian media and political subversion in Eastern Europe. In the aftermath of Russia expanding its subversion apparatus to Western countries in the last couple of years, it is imperative that all European countries realise the implications of allowing such subversion to continue: an empowered Russia, at the cost of stability, prosperity, and human rights in Eastern Europe.

Neil Reilly is a research assistant a Bright Blue

Human rights abuses by the Ugandan People's Defence Force

Introduction

The Ugandan People’s Defence Force (UPDF), the government armed forces of Uganda, face accusations of significant human rights violations. As one of the larger militaries in its region, the UPDF plays an important role in conflict resolution and peacekeeping in both Uganda, and the wider East African region. In recent years, the UPDF has been engaged in operations in Uganda, Somalia, and the Central African Republic.

Operations in Uganda

The UPDF has a long history of alleged human rights violations in its own country.

Since 1987, the UPDF has been engaged in active warfare with rebel political organisation, the Lord’s Resistance Army (LRA), who, the UN reports, have been responsible for more than 100,000 deaths across East Africa since 1987. This war has left many Ugandan citizens displaced and has forced them into displaced person camps.

In 2003 a report from Human Rights Watch detailed human rights abuses committed against the civilian population during the conflict against the LRA. These included child soldiers being recruited into the army against their will and sometimes subjected to torture. Samuel Tindifa, the then director of Human Rights Watch, reported that girls as young as 12 had been raped and had subsequently tested positive for HIV, most likely as a result of the sexual abuse.

In 2005, Human Rights Watch reported that the Ugandan military were continuing to kill, rape, and uproot citizens in Northern Uganda. They have also alleged that a particular battalion committed numerous deliberate killings and beatings of civilians during early 2005 when it was assigned to the displaced person camps.

In 2007, Save The Children reported further abuses committed by the UPDF: they stated that the UPDF was responsible for the deaths of 66 children in an incident in the Karamoja region. These allegations were confirmed by a report from the UN which urged the Ugandan government to curb human rights abuses against civilians and condemned “indiscriminate and excessive use of force” by the Ugandan military.

African Union Mission in Somalia

In 2007, UPDF soldiers were sent to nearby Somalia to participate in the UN-supported African Union Mission in Somalia (AMISOM), whose purpose was  to provide peacekeeping services during the Somali Civil War. But in 2014, soldiers from AMISOM, including soldiers from the UPDF, reportedly sexually abused and exploited vulnerable Somali women and children at their bases in Mogadishu.

Further to this, a Human Rights Watch report found soldiers raped or assaulted women who came to the army bases and paid vulnerable women for sex. This directly contravenes the UN Secretary-General’s rules which prohibit peacekeepers from exchanging any money, goods, or services for sex. Some women were found to have contracted sexually transmitted infections after the assaults, with several also describing being slapped and beaten by the soldiers.

An investigation also uncovered evidence of sexual exploitation of women seeking medicine for sick babies at AMISOM military bases and reports that soldiers gave some women food or money after they had been raped in an apparent attempt to frame the assault as transactional sex.

Only one rape case was ever brought to Ugandan military court, although a number of soldiers were suspended for misconduct. In an official response, AMISOM said that the alleged rapes were ‘isolated incidents’.

Operations in the Central African Republic

In 2009, members of the UPDF were sent to the Central African Republic to suppress the LRA’s activity in the Republic. The UPDF presence was further increased in 2011 and 2012 in an attempt by the African Union to eliminate the LRA.

In 2016, the UN reported 14 cases of rape by the UPDF in the Central African Republic including cases involving children. The UN High Commissioner stated that he was deeply concerned by these “credible” and “deeply worrying” allegations of human rights violations.  Most recently, Human Rights Watch - in findings released this week - found accounts of rape and sexual exploitation by the UPDF in interviews that they conducted with women in the country. Similar accounts were revealed in a BBC report which detailed how a 12 year old girl was raped by a UPDF soldier on the way to the market.

There have been a number of accounts of women being left pregnant by Ugandan soldiers. Reports suggest that women have had sex with UPDF soldiers in military bases despite strict rules from the African Union explicitly prohibiting this practice. In each incident the soldier who had fathered the child subsequently left the country and provided no support to the mother. Ugandan military investigators have claimed to have engaged with some of those affected, but this has been widely denied by survivors. One young woman told Human Rights Watch that she was warned not to speak with Ugandan investigators. A military spokesperson quashed the allegations stating “our soldiers did not get involved in such unprofessional behaviour”, and that the investigations were completed.

Conclusion

Uganda is now withdrawing its troops from the Central African Republic and many soldiers have already returned home. However, the Ugandan government has still failed to address the serious, credible, and consistent accounts of sexual abuse and violence committed by Ugandan soldiers in Uganda, Somalia and the Central African Republic. Critics argue that investigations by the Ugandan military have been wholly inadequate and have not held alleged perpetrators to account. Some human rights organisations have now called on the African Union and the UN to undertake independent inquiries into the actions of the soldiers and to require the Ugandan government to take action if the allegations are corroborated.

Michael Hough is a research assistant at Bright Blue

Human rights and the Brazilian justice system

Introduction

In 2012 and 2014, Brazil enjoyed being under the international spotlight as it hosted both the FIFA World Cup and the Olympic Games. However, more recently, Brazil has attracted more unfavourable attention from human rights organisations, who have frequently accused Brazil of violating basic human rights laws, particularly in relation to its justice system. Thousands of people have allegedly been killed by police since 2015 while conditions in Brazil’s jails have been castigated for being inhumane and prison officers have been accused of conducting torture.

A history of police misconduct

Brutality and violence within the Brazilian police force has been evident for much of the last decade. The Brazilian Forum on Public Security - a body comprised of security officials, research centres and NGOs - counted over 11,000 citizen deaths perpetrated by the police in the country between 2009 and 2013. The Economist reported that since 2000, three on-duty police officers had been responsible for at least 69 killings as well.  

A number of human rights organisations have expressed concern regarding the Brazilian police force’s conduct. Human Rights Watch have found “clear evidence” of police cover-ups. One report found officers involved in these killings have taken the corpses of their victims to hospitals to destroy crime scene evidence under the false pretext of rescuing them, and, in some cases, police officers have planted evidence on their victims before forensic investigators arrive.

In response to these abuses, the Brazilian government introduced a number of measures in the early 2010s to curb the violence, including: higher levels of community police training; cameras installed in police cars; and a new law to prohibit police from taking victims to the hospital.

Ongoing problems

But continuing police killings in the country suggest these reforms have not been effective. Human Rights Watch report  ongoing misconduct by police: for example, in 2015, 3,345 people were killed by police forces in Brazil. Similarly Amnesty International found that, in 2015, police were responsible for one in every five deaths in São Paulo.  Human rights organisations have also raised concerns about a worrying culture of cover-ups among police officers. In 64 recent cases that Human Rights Watch have examined, the police officers’ accounts of the shootings appeared incompatible with the autopsies or other forensic reports and showed disregard to international standards, Brazilian law, and internal police regulations governing the use of lethal force.

Problems in prisons

Police misconduct is only one of the human rights issues affecting Brazil’s justice system. Reports suggest that Brazil prisoners are subjected to inhumane detention conditions and possible torture.

Prisons are significantly overcrowded in Brazil with the number of prisoners far exceeding total capacity. Official estimates in Brazil place the number of prisoners in detention close to 660,000 with official capacity closer to 394,000. In a landmark case, the Brazilian Supreme Court ruled that inmates in the country’s heavily overcrowded prisons are entitled to compensation from the state.

Reports suggest that the poor conditions inside these jails are having a significant impact on the health and wellbeing of prisoners. The New York Times reports that incarcerated Brazilians are around 30 times more likely to contract tuberculosis and almost ten times more likely to be infected with HIV than the general population. Human Rights Watch have said that overcrowding and understaffing make it impossible for prison authorities to maintain control and that in many prisons the required ratio of one prison guard for every five detainees ratio is not being met, thereby breaking the National Council of Criminal and Prison Policy. An inmate at one of the prisons summarised the conditions by saying that “no one deserves to be here.”

Conditions for female prisoners have also been criticised. Brazilian law states that women should be held in prisons exclusively for women, but this does not appear to be the case in reality. Female prisoners have reported being harassed and groped by male prison guards who legally should not have been present at the prisons. Female prisoners are also forcibly separated from their babies after six months and pregnant women are reported to be given an inadequate diet, contravening human rights guidelines.

International human rights organisations have also reported that torture is widely used in Brazilian jails. In its January 2016 report, the UN Special Rapporteur on torture and cruel, inhuman, or degrading treatment or punishment found that torture and ill-treatment by police and prison staff are “frighteningly regular occurrences” in Brazil. This is an account supported by an official report into Brazil from Amnesty International. In response to these allegations, the Brazilian government established the National Mechanism for the Prevention and Combating of Torture. This body visited six states in Brazil and found cruel, inhuman, or degrading treatment in “most, if not all” of the 17 jails and prisons it inspected.

Conclusion

Police brutality, killings and inhumane treatment of prisoners appear to be endemic across Brazil. Despite reforms aimed to alleviate the problem, the issue seems to have remained. Brazil is at present undergoing its third universal periodic review, a process which involves a peer review of human rights in every country within the United Nations by other member states, who  then make recommendations on the problems in that state. International human rights organisations are hopeful that the Brazilian government will act on and accept the recommendations which will come from this report. Without significant change and reform, there is a danger that the alleged human rights violations in the Brazilian justice system may continue or even worsen.
 

Michael Hough is a research assistant at Bright Blue

 

Human rights in Hungary

In 2010, Viktor Orbán was elected to the office of Prime Minister in Hungary. Orbán’s campaign has been viewed as one of the first ‘populist’ victories of the 2010s. He stood on a manifesto of social conservatism and what he called "illiberal democracy". Since his election, the Hungarian government has received significant criticism for its approach to human rights. In particular, the government has been criticised for limiting press freedom, attempting to silence political opponents, and for mistreating refugees who have arrived in the country as part of the European refugee crisis.

Freedom of the press

Reports suggest there has been a significant decline in press freedom over the past few years. These reports often focus on two laws which have been introduced by Orbán. First, in 2011, Orbán introduced legislation which created a new “media control body”. The body is staffed wholly by individuals appointed by the ruling party and all media outlets in Hungary are required to join it. It is alleged that this body is being used by the Hungarian government to control the press.  

Second, recent amendments to Hungary’s Freedom of Information Act have significantly increased the price charged for the fulfilment of freedom of information requests and have created greater restrictions on gaining copyrighted documents. Freedom House have reported that these changes have limited the scope and the power of the law.

In addition to these new laws, there has also been a newspaper closure. Last year, the largest independent newspaper in Hungary Nepszabadsag suddenly closed down. This was officially attributed to financial losses and plummeting circulation, but this has been questioned by former employees. They referred to the shutting of the newspaper as a “coup”. The co-chairman of the ruling party was reported to have said “it was high time Nepszabadsag shut down unexpectedly” before the closure which came just days after the newspaper had published a series of critiques of the Hungarian Government.

This current climate has resulted in significant public distrust. A poll last year found that nearly two-thirds of adults living in Hungary believe that the freedom of the press is limited.

Political opponents

In addition to these crackdowns on press freedoms, there have also been reports that the Government has attempted to silence political opponents. For instance, in 2017, the Hungarian Parliament passed a new law which requires foreign-based universities to have their operations approved by the Hungarian Government. This was widely viewed as an attack on the Central European University - one of the country’s top universities - which was founded by George Soros and which is registered in New York. Allies of Orbán have been extremely critical of Soros - a Hungarian-born liberal campaigner - in the past. For example, officials from the ruling political party and pro-Government media have accused Soros of representing an unelected, meddling, liberal elite whose time has passed.

Similarly, the Open Society Foundation (OSF) - an international NGO founded by Soros to advance justice, education, public health and independent media - has faced new crackdowns. Amendments to a law which are presently being debated require all foreign-funded NGOs with foreign donations of at least 7.2 million forints (just over £19,500) to register with authorities. This has been viewed as an attempt to impede the OSF in Hungary. The Council of Europe’s Parliamentary Assembly has called on Hungary to suspend this debate. OSF has been criticised by government officials for funding civil rights organisations in the country and for allegedly promoting illegal migration and serving foreign interests. The Vice-Chairman of the ruling political party has stated that the OSF places “political correctness over national government” and that there is now a new opportunity to crackdown on it.

Refugee community

The Hungarian Government has also been criticised for its approach to the European refugee crisis. Due to its geographical position, Hungary has received some of the highest number of refugees per capita in Europe. In response, the Hungarian Government has introduced a number of laws and policies which critics have argued infringe on the rights of refugees and asylum-seekers.

The Government has repeatedly extended a nationwide state of emergency due to “mass immigration”, despite seeing a decrease in asylum applications in 2016.  The initial state of emergency which was called in two southern regions of Hungary in 2015 allowed the Government to shut down roads and speed up asylum court cases. This was then extended nationwide in 2016 where the state of emergency increased the number of border control officers, increased the number of army officers on the border and intensified border checks by allowing the army to assume control of registering asylum seekers. Human Rights Watch stated that “militarising its borders and denying access to protection is sadly consistent with Hungary’s repressive approach to asylum seekers and migrants.”

The Hungarian Parliament has also approved plans which require all asylum seekers over the age of 14 to be placed in detention camps. The United Nations Human Rights Council have argued that “this new law violates Hungary’s obligations under international and EU laws and will have a terrible physical and psychological impact on women, children and men who have already greatly suffered.” UNICEF have also expressed concern that unaccompanied minors older than 14 will detained in these camps. Orbán has stated that at any time the refugees are free to go if they choose to return back to Serbia and that his country is under siege from immigration.

The conditions within detention camps have also received significant censure. The European Committee for the Prevention of Torture has reported that torture occurs within these camps. While, in 2016, the European Court on Human Rights ruled that the asylum detention of a gay asylum-seeker was in violation of his right to liberty and safety.

Conclusion

The deterioration of human rights in Hungary has caused concern across the world. To date, Orbán and the Hungarian Government have shown no intention of changing their policies. As a member of the European Union, the EU is able to exert some pressure on Hungary. The European Commission has threatened Hungary with legal action however organisations such as Human Rights Watch have called for it to be more vocal. Furthermore, the foreign minister of Luxembourg has called for Hungary to be thrown out of the European Union over its treatment of refugees and the state of its media. Other than pressure from the EU, there is little possibility of Hungary reversing its current policies. That is, until the next Hungarian general election is held, which will occur in or before the spring of 2018. Current polls, however, suggest that Orbán will secure an increased majority in that election.

Michael Hough is a research assistant at Bright Blue