human rights

Hong Kong since handover

This summer will mark 20 years since the handover of Hong Kong from the United Kingdom to China. The handover marked the end of 156 years of British rule. In that time, Hong Kong was transformed from a small town into one of the most prosperous cities in the world. Under British rule, Hong Kongers also enjoyed significantly greater human rights protections than their counterparts in mainland China.

Earlier this week, as part of its Conservatism and human rights project, Bright Blue met a delegation from Demosisto, a political party in Hong Kong, which has one MP in the Legislative Council of Hong Kong and includes Joshua Wong, a high-profile activist who has been detained in Thailand at the request of the Chinese Government. They talked at length about their views and experiences of human rights abuses in Hong Kong, which includes disqualifying pro-democracy MPs from the Legislative Council of Hong Kong, and restrictions on press, academic and religious freedom.

British officials were deeply concerned that the Chinese government, after the handover in 1997, would seek to erode many of the protections that Hong Kongers enjoyed. In an attempt to mitigate this risk, the UK and China signed the Sino-British Joint Declaration. The declaration established the ‘One Country, Two Systems’ principle, which required the Chinese government not to practise the socialism which existed on the mainland. Instead, Hong Kong would continue its capitalist system and way of life for 50 years after 1997. To ensure this was the case, the Chinese Government created the Hong Kong Basic Law - a series of constitutional protections.

However, in the past three years there have been two significant accusations that the Chinese Government is failing to abide by the conditions held in the Sino-British Joint Declaration: rendition, where Hong Kong citizens have been taken from the city and other locations without the permission of the Hong Kong government; and a Chinese Government white paper which seems to suggest reneging on the One Country, Two Systems principle.

Rendition

Between October and December 2015, five staff members of a bookstore in Hong Kong disappeared. The bookstore in question sells a number of political books that banned in mainland China. The store’s right to sell these books in Hong Kong is protected under Basic Law Article 27. The store is one of 100 independent bookstores in Hong Kong which cater predominantly for people interested in the political issues of Chinese mainland politics.

At the time of their disappearances, one of the staff members, Gui Minhai - a Swedish national - was believed to be writing a book about the personal history of Xi Jinping, the current General Secretary of the Communist Party of China. The book was named Xi and His Six Women. One of the bookstore workers disappeared while in Hong Kong. Minhai was taken from his home in Thailand, and the other three workers disappeared while in mainland China.

There was initially no information on the location of the workers. Chinese Government involvement was suspected since disappearances are commonplace in mainland China. Following significant international focus on the missing bookstore workers, two of the missing men appeared through letters and in a confessional video broadcast on national television. During the broadcast, they insisted that their return to mainland China was voluntary. These confessions were widely considered to be carefully stage-managed.

Chinese officials later confirmed that the five workers had been arrested in relation illegal book trading.. Article 22 states of Hong Kong Basic Law states that no department of the central, provincial, or municipal governments in mainland China can interfere in the affairs which the Hong Kong government is responsible for administering.  So this case was considered a significant violation of Hong Kong basic law. Hong Kong's Chief Executive, CY Leung, stated in a press conference - prior to Chinese confirmation that they had detained the staff - that if mainland Chinese law officials were operating in Hong Kong, it would be "unacceptable" and a breach of the Basic Law.

Four of the Hong Kong bookstore workers have been released. However, Gui Minhai remains in custody. The Chinese government has faced no sanctions for its violation of Hong Kong Basic Law.

One Country, Two Systems?

Under the Sino-British Joint Declaration, Beijing is committed to permitting Hong Kong “a high degree of autonomy except in foreign and defence affairs.” This has commonly been referred to as the One Country, Two Systems policy. However, in 2014, the Chinese Government published a white paper which appears to significantly compromise this principle.

The white paper asserts the Chinese Government’s "comprehensive jurisdiction" over Hong Kong. The paper argues that Hong Kong legislators must “love their country” (China), and warns against possible threats to Chinese rule in the city.

The publication of the white paper caused what the New York Times described as a “firestorm of criticism from many people in Hong Kong”. Critics argued that the Chinese Government was reneging on its pledges to abide by the One Country, Two Systems policy. In response, there was a significant demonstration in Hong Kong to protest against the publication of the white paper.

While the media in mainland China was supportive of the white paper, Hong Kong newspapers struck a different tone. The South China Morning Post pointed out that the white paper was published only two weeks before pro-democracy Occupy Central activists were due to hold an unofficial referendum on who should be the Chief Executive in the upcoming elections. The organiser of Occupy Central argued that the Chinese government was using the paper to "try to scare Hong Kongers into silence". The Ming Pao argued that the One Country, Two Systems concept has become an "empty shell" and Hong Kong is likely to turn into an "ordinary Chinese city".

Despite these criticisms, the Chinese government has not withdrawn any of the assertions held in the white paper.

Conclusion

Two cases over the last three years suggest that China is violating the Sino-British Joint Declaration and infringing on the Basic Law of Hong Kong. The Foreign and Commonwealth Office’s response to these accusations has been muted. Since the handover, the British Foreign Secretary has reported to Parliament at 6-monthly intervals on the implementation of the Sino-British Joint Declaration in Hong Kong. The latest report, in February this year, argued that Hong Kong’s rule of law remains “robust”. However, the report also did admit that there are some challenges to the One Country, Two Systems policy.

In truth, the British Government only has limited power with which to enforce the Joint Declaration. Prior to handover, it was able to exact compromises from the Chinese government by slowing the handover process. Now few levers remain. And, as described to us by the delegation from Hong Kong earlier this week, the human rights situation in the city seems to be deteriorating.

James Dobson is a researcher at Bright Blue

Human rights and the armed forces

The Rt Hon Liz Truss MP, Britain’s first female Lord Chancellor, faces difficulty in her other role as Secretary of State for Justice. At the top of her list is likely to be the proposed British Bill of Rights and prison reform.

But she is also likely in her ‘red box’ to have the apparent ‘juridification’ of the armed forces. The Government is increasingly concerned that human rights legislation, particularly the European Convention on Human RIghts (ECHR), is being applied to the armed forces overseas. This issue continues to trouble the Ministry of Defence (MoD) which, since the start of the Iraq War, has received over 2,000 public and private legal claims relating to British military action. To date, the Government has found no way of preventing this juridification.

Legal history

The Political Scientist and former British Army Officer, Professor Anthony Forster, states that “for over 200 years wars have been governed by the laws of war and national legislation”. Specifically, laws have been applied to military personnel through both international humanitarian law (IHL) and domestic law.

IHL is commonly referred to as the ‘law of armed conflict’, or the ‘law of war’. IHL comprises of a number of international treaties which attempt to restrict the effects of armed conflict for humanitarian reasons. The rules and regulations of IHL are founded in a vast number of treaties, in particular the Geneva Conventions of 1949 and their Additional Protocols which were ratified during the 1970s.

Military behaviour has also long been restricted by domestic rules and laws. In 1731, the British Royal Navy introduced the first version of what is now known as the Queen’s Regulations. Since than, there have been a number of Acts which set out disciplinary frameworks for each of the services, with a single, harmonised disciplinary system governing all members of the armed forces introduced in 2005.

Since at least World War Two, it has been accepted in the UK that the special circumstances in which service personnel find themselves compared to civilians requires unique legal protections. This consensus resulted in principles such as ‘combat immunity’ and ‘Crown immunity’. The concept of ‘combat immunity’ has been defined as ”a common law doctrine that operates to exclude civil liability for negligence and deliberate damage to property or person committed by the armed forces during certain combat operations”. In practise, this meant that soldiers enjoyed immunity from prosecution in many forms of activity, including in the planning and preparation of attacks. Crown immunity prevented forces’ personnel injured while on duty from seeking compensation from the MoD.

The ‘juridification’ of the armed forces

Juridification is the process of increasing legal intervention in an area which had previously been based on trust. Tom Tugendhat MP, a former soldier, and Laura Croft, a barrister, published a paper last year with Policy Exchange. In the report they claimed that “recent legal developments have undermined the armed forces’ ability to operate effectively on the battlefield”. Professor Forster has agreed with these claims and argues that there “appears to be a strong case” that a process of ‘juridification’ of the British armed forces has occurred.

Forster, and Tugendhat and Croft, conclude that the ECHR has been the main mechanism through which cases have been brought against the MoD. Cases brought against the MoD usually fall into two categories; cases which relate to the armed forces’ treatment of civilians, and cases which relate to the armed forces’ treatment of their own personnel.

Armed forces’ treatment of civilians

There is one key case in the armed forces’ treatment of civilians; Al Skeini. In this case, the families of six Iraqis who died in Basra in 2003 brought a case against the MoD. They claimed that the British government had failed to carry out an investigation into the deaths of their relatives. Four of the relatives had been shot when British troops were conducting a patrol; one was an apparently innocent bystander who had caught in the crossfire between British troops and Iraqi gunmen; and the sixth died at a British base in the custody of British troops. The Rt Hon Geoff Hoon, the then Defence Secretary, decided not to order an independent inquiry into the deaths.

The British High Court, Court of Appeal and Law Lords all found that the Iraq War did not fall within the regional sphere of the ECHR. In order for the protections of the ECHR to apply, the actions of the state must occur within the state’s jurisdiction except in exceptional circumstances.

However, the European Court of Human Rights found that one of the exceptional circumstances in which the ECHR could apply extraterritorially was when a signatory exercised ‘public powers’ on the territory of another state. The Strasbourg Court found that the UK “assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government”, in particular “responsibility for the maintenance of security in south-east Iraq”. Thus, during the period in question, the UK “exercised authority and control over individuals killed in the course of such security operations” and, as a result, a jurisdictional link existed between the UK and the Iraqis who had been killed. The MoD was thus ordered to pay compensation to the 6 victims’ families.

Armed forces’ treatment of their own personnel

There have also been a number of cases relating to the armed forces’ treatment of their own personnel. The main set of these types of claim arose from an apparent friendly fire incident, called the ‘Challenger claims’. During the incident one soldier was killed and a further two were injured. The soldiers claimed that the MoD had failed to equip the Challenger tanks involved and had not offered soldiers adequate tank-recognition training.

The MoD argued that the claims should be struck out because at the time of their deaths and injuries, the British soldiers were not within the jurisdiction of the UK for the purposes of the ECHR. The UK Supreme Court followed the previous Strasbourg verdict and held unanimously that the claimants were in the UK’s jurisdiction for the purposes of the ECHR at the time of their deaths. The MoD thus lost the case and compensation was awarded to the soldiers involved.

Conclusion

There has been an explosion in claims against the MoD which has angered subsequent governments. The current Conservative Government believes these judgments have the potential to significantly limit the capabilities of British troops and is determined to find a remedy to them.

To date, no such remedy has been found. Appearing before the Justice Select Committee earlier this year, the Rt Hon Michael Gove MP - the then Justice Secretary - argued that “there might be a derogation when British troops are engaged in conflict in the same way that France has derogated [from some human rights obligations] in the aftermath of the Bataclan atrocity.” Gove was referring to the November 2015 Paris attacks where terrorists launched coordinated attacks in cafes, restaurants, theatres and outside the Stade de France. Following the attacks, France temporarily suspended some elements of the ECHR This may been one mechanism of preventing claims, but the responsibility for resolving the problem now falls to the new Justice Secretary, the Rt Hon Liz Truss MP.

James Dobson is a researcher at Bright Blue

We are failing to protect children in Yemen

During my time at Save the Children, I’ve worked with parliamentarians across a number of different humanitarian crises and conflicts, including the Nepal earthquake, the refugee crisis and the ongoing civil war in Syria.In this context, I am struck by just how far down the priority list the crisis in Yemen continues to be. It is the largest humanitarian caseload in the world right now, thanks to a persistent and systematic abuse of the rights of its people, including the death of children.

Save the Children has been working in Yemen for over 50 years. Life for children and their families was already very difficult, and the military operation launched last year by the Saudi Arabia-led coalition (in support of the Government of Yemen against Houthi opposition forces) has made things even worse. Over half of Yemen’s population urgently need food, don’t have access to clean water and are without adequate healthcare. And thanks to bullets and bombs, the death toll keeps rising: on average six children have been killed or injured everyday since March 2015. Children have also been recruited by armed groups, abducted, and raped. Hospitals and schools – which should be safe places even in war – have been attacked and humanitarian assistance denied.

Against this backdrop, there have been regular and credible allegations that violations of international humanitarian and human rights law have been committed by all parties to the conflict. A recent UN report documented 119 incidents by Saudi-led coalition forces, including attacks on weddings, mosques, ports and markets. In two recent incidents, coalition airstrikes on marketplaces are reported to have resulted in dozens of civilian casualties, including children.

The UK government has a long and proud history of supporting Yemen. In response to the current crisis, they have used their diplomatic clout to pave the way for peace negotiations – and offered relief by intervening to ease a de-facto blockade and by providing £85 million in humanitarian aid. But the impact of UK aid on the humanitarian crisis cannot be fully realised without equal attention to the protection of civilians.

As the fourth largest donor to the crisis and with a close relationship to Saudi Arabia, the UK is in a position of influence. The Government should use this influence to push all parties to the conflict to do more to protect children and their families, and to comply with their obligations under international law.

Not only will this help to protect the children of Yemen, it will reassert the UK’s commitment to “strengthen the rules-based international order”.

As Jan Eliasson, Deputy Secretary General of the UN, has already warned: a growing disregard and lack of respect for international humanitarian law is “causing enormous damage in the world”. Leaders are hoping to address this at the World Humanitarian Summit which took place in Istanbul this week; the UK can play its part by ensuring that all abuses of rights are investigated, regardless of our economic and strategic interests around a particular conflict.

Echoing the recommendations in the International Development Select Committee’s recent report, given the credible evidence of disregard for civilian life and for the rules of war, the Government should support an immediate international, independent inquiry into violations of international humanitarian law in Yemen.

This move will set a positive precedent for other conflicts, and most importantly help children like Wahiha*, a 13 year old girl living in Yemen, feel safe: “I feel scared when I see weapons and especially when I hear the sound of planes up in the sky. When you hear that sound it means a big explosion will follow and that people will be killed… Hospitals and schools are damaged too.”

Denisa Delic is parliamentary and advocacy officer at Save the Children