Is British Constitution Hurting the Country: Potential and Real Fallout from an unfortunate Election?

What a relief! That was my first reaction the other day while sipping the first morning coffee and looking at my plasma TV and the inescapable Sky News (the reference to “plasma” TV does not indicate my personal wealth but a higher degree of shock with a huge display of figures demonstrating the government’s miscalculation!):  a new hung parliament! A relief because the episode provided me with a good coursework topic for my students this academic year! And that was all; in all other respects the outcome of the elections I perceived as pretty catastrophic, not only for the party whose leader called the elections but for the country and the character of our democracy.

And then just when I thought I started enjoying my well-deserved summer break a student asked to meet to discuss the snap general election!

OK, I said; “Let’s meet today.”

The student introduced the topic:

“How could she call a general election when the Fixed Term Parliament Act 2011 does not allow for that convenience?”

“Wow”, I thought; my teaching strategy is working!

“Yes”, I said, “she could”.

And then this: “You told us that the very essence of a constitution is to implement the Rule of Law and prevent discretion; as you put it on a slide: ‘A society in which government officers have a great deal of discretion has a low degree of “rule of law”, whereas a society in which government officers have little discretion has a high degree of “rule of law (M. Stephenson, ‘Rule of Law as a Goal of Development Policy’). At this stage I regretted meeting the student!

“Yeah” I said, “A constitution is all about implementing the Rule of Law, preventing abuse of power and making sure that the main functions of the main institutions are safely separated and properly checked and balanced. That is the whole point of having a law and reference to standards higher and nobler than political convenience or personal gains.”

Then I tried to be as concise as possible referring to the 2011 Act: “The conditions for when a snap election can be called were significantly restricted by the Fixed-term Parliaments Act of 2011. Prior to the Act, the Prime Minister had the de facto power to call an election at will by requesting a dissolution of Parliament from the Monarch. Under the provisions of the Act, parliamentary elections must be held every five years, beginning on the first Thursday in May 2015, then, 2020, 2025 and so on. However, Parliament has the power to call for an early general election, on one of two conditions:

  1. a) Via a motion of no-confidence in the current government. But which prime minister would in their right mind resort to this option, as it would effectively end their career I said to my student; so, forget this one.
  2. b) Via a vote that carries the agreement of two thirds of MPs. So, this one you are focusing on in the current situation” I said.

Then my trouble continued; the student said:

“Let us now examine the Prime Minister’s claim that calling a snap general election was to do with “strengthening Prime Minister’s hand in Brexit negotiations.” (http://www.bbc.co.uk/news/election-2017-40210957) .

The Prime Minister also claimed: “Labour, the SNP and the Lib Dems would try to destabilise and frustrate the process in Parliament.” ( So, the whole idea, we were asked to believe was to provide a stronger and more stable government, allegedly in order to implement what the British people clearly wanted and to prevent other political partners from frustrating that noble goal!”

But then my student said: “Are you aware that our Prime Minister said that she did not want to call a snap election before 2020 because she believed the UK needs stability.”?

“Wow” I said; I wasn’t aware; “where did you get that one please?”

Check this the student said: http://www.bbc.co.uk/news/av/uk-37266627/theresa-may-i-won-t-call-a-snap-election.

“All she wanted was to rely on UK constitutional convention for a personal gain”!

“Watch your language” (for a moment I contemplated to suggest to my student – I didn’t of course!).

Then I tried to suggest that the country needed a strong and stable government for Brexit negotiations.

“Brexit”! The student snapped at me.

“What are your concerns about the Brexit”? I asked.

“My main concern is a real prospect of taking away, what in the civilised world are deemed constitutional and fundamental rights by administrative action; Henry WIII Clause; repealing the European Communities Act 1972, which is according to many commentators a proper constitutional act, requiring more that executive action to amend it”.

“Do you know who and why voted for all this”? The student then asked. “Yes” I said; “the British people”. “Have you checked Lord Ashcroft Report”? http://lordashcroftpolls.com/2016/06/how-the-united-kingdom-voted-and-why/ . “Nearly three quarters (73%) of 18-24 year olds voted to remain while more than 60% of 65 year olds voted to leave! “A majority of those working full-time or part-time voted to remain in the EU; most of those not working voted to leave. More than half of those retired on a private pension voted to leave, as did two thirds of those retired on a state pension. A majority (57%) of those with a university degree voted to remain, as did 64% of those with a higher degree and more than four in five (81%) of those still in full time education. Among those whose formal education ended at secondary school or earlier, a large majority voted to leave. Don’t tell me it was what the British people wanted. Why would we pay for their mistake”? My student asked. This outcome may actually harm our negotiations with the EU without “strong and stable government” since a hard Brexit, meaning no free trade deal is going to be more likely as time goes by. What happens if the EU prefers a hard Brexit, but our new Prime Minister doesn’t have sufficient support for that option from Parliament? “. I scratched my head at that stage for a second or third time during the conversation!

“It’s not only Brexit that the British people are concerned about, but the threat of terrorism, austerity, protection of basic human rights and freedoms”. What about Article 2 ECHR and a positive duty to protect the right to life?  What about the protection of human rights of minorities based on sexual orientation?” What about the devolution and the government’s ability to remain impartial if it gets support from one side only as the situation seems to be developing? Don’t you think those issues require wider discussion within a more representative setting than a party dominated parliament or by a coalition of dubious legitimacy?” my student started elevating the discussion further!

And then the last straw: “She should have apologised to the country for hurting it by using the constitution for pursuing a personal gain, not to her party only”!

“Have a good summer” I was only able to mutter to my student!

 

Living with Addiction and Recovery

Catrin Andersson and David Best

Helena Kennedy Centre, Department of Law and Criminology, Sheffield Hallam University

There is now clear and consistent evidence that recovery is a process or a journey that lasts around five years before people can sustain their own recovery without help. There is also a growing body of evidence that recovery is intrinsically social and that key individuals in the person’s life are critical to supporting and encouraging and facilitating change. And we know much of how this happens through a survey of recovery experiences conducted by Faces and Voices of Recovery in 2013 in the US which showed the extent of the recovery journey.

Critical to the recovery process is the family and loved ones- not only may they be witnesses to the descent into substance addiction, they may also bear the brunt of much of the chaos that addiction brings. This may take the form of financial loss, disruption to the family home and the heartache of uncertainty of whether their loved one is safe, in control or even alive. In addition to these various burdens, they will also often experience the exclusion, the stigma, the shame and the isolation that addiction can visit on families.

Yet the family journey has not been well documented in research. Similarly, their experiences have not been served as well by an advocacy movement that has focused primarily (although not exclusively) on the experiences of the person in recovery.

From what we do know, the family also have their own recovery road to travel and this may not match, in chronology or in context, that of the person overcoming their own addiction. This journey may involve a complete reconciliation with the addict in recovery or may necessitate that they move on in their lives independently from the person they love.

But we know very little about this process and there has been a limited opportunity to give a voice to this hidden group. From the perspective of society, families will often bear the costs of addiction and buffer the effects on society by picking up the pieces every time the addict falls over. Yet our research endeavours have not attempted to quantify how this happens and what recovery means for family members.

In the UK, a partnership between the Desistance and Recovery Research Group at Sheffield Hallam University and Adfam, the national UK charity for families of addicts, has been funded by Alcohol Research UK to create an amended version of the Life in Recovery survey that specifically targets the family experience. It has been pilot tested in the UK with a range of family support groups and is now available online until the ends of July at

Families Living with Addiction and Recovery survey

If you want to have your say, and have your story told, and at the same time to contribute to a new body of research on family experiences please complete the survey. This will allow the research team to communicate to families not only that they are not alone on the journey, but also to show that there is light at the end of the tunnel and that there is hope – hope for the addict and hope for the family. We will also summarise the findings and let you know what the study finds.

Recovery – strategy and policy: The need for clear pathways to recovery for alcohol and drug users

As we await the new drug strategy for England, it is perhaps a good time to review what went right and what has gone wrong with the last one in terms of building a model of supporting long-term change and reintegration.

When the previous strategy was published in 2010, the then Home Secretary Theresa May announced in the preface, “A fundamental difference between this strategy and those that have gone before is that instead of focusing primarily on reducing the harms caused by drug misuse, our approach will be to go much further and offer every support for people to choose recovery as an achievable way out of dependency” (UK Government, 2010, p.2).

However, this was wrapped in a changing world of the Global Financial Crisis and the Coalition drive to localism; more parochially it was also characterised by the demise of the National Treatment Agency for Substance Misuse and the embedding of alcohol and drug interventions in Public Health England. There was an air of excitement about a recovery strategy that was based on hope and in communities and that was meant to offer something much more innovative and exciting than substitute prescriptions of methadone, disability and sickness benefit and long-term unemployment.

To some extent, and in some parts of the country, that promise has been delivered – the focus on moving out of treatment has brought a raft of innovation and local community successes, and a fundamental transition in the delivery of services and treatment – at much lower cost but at a cost of far fewer safety checks.

One consequence has been a recent growth in drug-related deaths both from overdose and from the chronic diseases that characterise addictive lifestyles. There has also been a huge impact on the consistency and quality of treatment that is available to people needing and seeking help. The decentralising of commissioning has led to a reduction in specialist services in many areas along with localised decision-making which has meant that there is little centralised control over treatment delivery and limited quality assurance.

This has had two fundamental implications that are the core of this piece: a reduction in the accessibility of effective residential treatment, and the implementation of a model that fails to meet most of the key requirements of a recovery-oriented system of care.

  1. The gradual erosion of effective residential treatment

As we will demonstrate at an event in Sheffield on the 16th of January in partnership with Phoenix Futures, there is a clear and consistent evidence base that shows the effectiveness of residential treatment. When compared to community treatment, key outcomes – particularly around substance use and offending – are consistently better for residential treatment in a range of treatment cohort studies from the UK and from other countries.

While definitions of recovery vary, there are common characteristics – abstinence, high quality of life, active participation in society and community, meaningful activities and connection and belonging. These things are most likely to be served by a recovery journey that includes the opportunity for residential treatment – treatment of sufficient duration and with sufficient continuity of care (aftercare) that the benefits persist through reintegration into the community. It is also clear from the evidence base (summarised in guidance from the Substance Abuse and Mental Health Services Administration in the US) that an effective and evidence-based recovery system has to include the most intensive and effective treatments such as residential care.

For most people with entrenched addiction issues, substance dependence is enmeshed in wider life issues around mental and physical health, relationship problems, criminal justice issues and life direction. These are complex, intertwined issues and the research shows clearly that recovery requires major changes in social networks and in identity, fundamental changes in self-esteem and lifestyle. Residential treatment affords the space and time to embed and cement these changes, as shown in outcome studies in Scotland, England, Australia and America.

People have to learn to recover and residential treatment provides the opportunity and the guidance to make the most of it. For a drug and alcohol treatment system to call itself recovery focused, there must be a visible, accessible and high quality range of residential treatment options, with adequate support and continuity of care.

  1. What is a recovery oriented system of care?

While we know that recovery is not a linear process and for many it is a journey that will have diversions and misfortunes, most people will eventually get there. However, high quality US evidence suggests that the average duration of an addiction career is 27 years including around 8 years in and out of treatment.

So a recovery system has to have safety nets that recognise the likelihood of slips and integrated approaches that support people way beyond the point that abstinence is achieved. However, the UK system has rewarded rapid exit from treatment with penalties for providers when clients re-present to treatment or re-offend. This just does not make sense and may well have contributed to the recent spike in deaths.

We need a system that is integrated and populated with both peers and professionals and that supports people to reach the forms of treatment that best support long-term recovery (residential treatments including Therapeutic Communities) and that support ongoing engagement in communities – through linkages to housing, jobs and supportive social networks. The recent Department for Work and Pensions campaign “See Potential” is a great way to challenge stigma and exclusion but this must be linked to a treatment system that reaches far into communities and supports change.

Will the new strategy provide this? Only if it goes way beyond the facsimile of recovery that was delivered in the 2010 strategy and that promotes not only meaningful change but sustainable reintegration.

 

Anders Breivik and Universality of Human Rights

“The rights of every man are diminished when the rights of one man are threatened.”

John F. Kennedy

The above statement, a simplistic but powerful expression reminds us of the most fundamental characteristic of human rights. As unpalatable and undesirable as it may sound on occasion, the concept applies to all human beings at all times and under all circumstances. And the author of this brief article has a rather unenviable task to remind the Norwegian government of this fundamental characteristic in the present case.

In 2011 Anders Breivik killed eight people with a car bomb in the centre of Oslo and then shot 69 political activists at a summer camp on the island of Utoya. He was sentenced to 21 years imprisonment, although he could be detained longer on preventive grounds.

He successfully challenged the conditions of his solitary confinement on human rights grounds in April 2016. Article 3 of the European Convention on Human Rights (ECHR) postulates that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Breivik’s lawyers argued that being held in solitary confinement for up to 23 hours a day and denied any contact with other prisoners, or with staff (other than through a glass barrier) constituted inhuman and degrading treatment. The lawyers also argued that being kept in solitary confinement was worse than the death penalty and that their client’s prolonged isolation was having a damaging effect on the claimant’s mental health. Breivik also complained of being woken up several times during the night, of female officers being present during searches of his person, and of being subject to excessive security when moving around the prison.

The District Court judge, deciding the case said that the right not to be subject to inhuman treatment was a fundamental value in democratic societies which applied to all, including terrorists. The Court found that these deprivations did constitute inhuman and degrading treatment and ordered the state to pay his legal costs.

Under Article 3 ECHR a person has the absolute right not to be torture or subjected to inhuman or degrading treatment or punishment.  An absolute right is one that cannot be infringed under any circumstances. The distinction between “absolute” and non-absolute rights is also visible in the procedures for determination of violation. The more fundamental nature of the right the easier to prove that a violation occurred: if an “absolute” right is claimed the applicant must prove on the balance of probabilities that a violation took place; if it is about non-“absolute” right then the violator has to prove on the balance of probabilities that the violation was justified.

The ECHR also stipulates that no derogation (withdrawal) from Article 3 can be made. The ECtHR reiterated this fundamental point in A v United Kingdom in 1998.

Article 3 ECHR therefore represents one of the most fundamental human rights of all, and the European Court of Human Rights (ECtHR), which interprets the ECHR has, on a number of occasions emphasised that the protective nature of the right may override, what state authorities and people may see as legitimate limitations on individual freedoms in particular circumstances. For example, the ECtHR has stressed that the right not to be subject to torture, inhuman and degrading treatment is of an absolute nature, meaning that it cannot be infringed under any circumstances.  The Grand Chamber of the ECtHR made this reference in relation to articles 2 and 3 ECHR in Ilascu v Moldova and Russia in 2004. The Court also referred to “the absolute character of Article 3” in Chahal v United Kingdom in 1996 and in Al-Adsani v United Kingdom in 2001.

Secondly, the prohibition of torture and inhuman or degrading treatment or punishment applies irrespective of the victim’s conduct; this means that whether the victim or potential victim is an innocent child or a cold-blooded murderer or terrorist, they enjoy the protection of Article 3 in the same way. ln Gaffgen v Germany in 2010 the ECtHR ruled that police cannot torture a suspect even if a life could be saved!

The Norwegian government is arguing that the applicant’s isolation was justified on security grounds, to prevent him influencing other prisoners and from harm from other inmates.

It should be born in mind that isolation, as a method of prevention is extremely difficult to justify. The UN Rapporteur on Torture stressed that isolation should be used only in exceptional circumstances and for not more than two weeks. Therefore, it is highly likely that the duration of the applicant’s isolation and especially its impact on his physical and mental health exceeded what was necessary in order to pursue the legitimate aim and that was to prevent influencing others.

This is another major principle the ECtHR developed. In order for a measure to be “necessary in a democratic society” as required by ECHR, it must respond to a “pressing social need” (The Sunday Times v United Kingdom, 1979). This means that the measure impacting on human rights must be proportionate to the aim pursued; in the present case a less intrusive and devastating means could have been employed by the Norwegian government.

According to psychiatric evaluations the applicant is not an ordinary criminal or terrorist; his crimes were motivated by a delusional perception of the world and his surroundings and he suffered from personality disorder, which implies that his actions were in pursuance of personal fantasies. It is difficult to see how such an individual may “influence” others to commit the same kind of crimes; they just would not have anything in common.

My message to the government is very simple: you are perfectly entitled to pursue a legitimate aim that your society may need, a one that may even compromise human rights; your people may feel revulsion towards the crimes committed in the present case; you may pass legislation potentially violating human rights, but the measure must be proportionate and rationally connected to the aim pursued.

The UK’s response to the Syrian Refugee Crisis: a comparative discussion

Introductory Facts

As of the 20th of June 2016 three countries made up more than half of all refugees worldwide: Syria (4.9 million), Afghanistan (2.7 million), and Somalia (1.1 million).[1] The question is where can they settle? Focusing on the displacement due to the conflict in Syria, the countries surrounding the country have housed significant numbers of refugees, with Turkey and Lebanon resettling nearly 4 million between them.[2]

It has been pointed out by Gina Clayton that those fleeing Syria are generally fearful of being killed because of the religious or political agenda of the attacker,[3] making them refugees under the terms of Article 1(2) of the Refugee Convention.[4]

What I am looking to delve into is whether the UK has provided the most effective and legitimate support to refugees of the Syrian Crisis, how refugees are treated when they arrive, and factors, especially the media, contributing to the treatment and perception of refugees in the UK. The support I mention is, I feel, divided into two categories: humanitarian aid (the UK’s preference) and physical aid (resettling refugees in the UK).

Comparison to other EU Countries

To shine the spotlight on the EU, as is the trend nowadays, in terms of the number of Syrian refugees seeking refuge, Germany is fourth only behind Jordan, Lebanon and Turkey[5] at just under 400,000. Fewer than 10,000 Syrians have sought refuge in the UK – and I will not refer to promises made by politicians, including a former Prime Minister. Does this affirm that the right balance has been struck between financial aid and resettlement? Do Syrians see the UK has an ideal place to resettle? The answers perhaps lie with the now dismantled Calais ‘Jungle’ – as branded by the media. The number of migrants differ from official statistics and those published by local charities.[6] However, the fact remains that a high proportion of the population of the camp wanted to settle in the UK.

A way to view the UK’s response is that due to our natural barrier to mainland Europe, we have chosen to ignore an issue that is naturally separated from us and decided instead to ‘throw money’ at the problem. The Calais Jungle, though not fully consisting of Syrian refugees, perhaps epitomises this view. Having said that, we should not forget other countries these people have passed through, are they not as much to blame – for example why have vulnerable children not been identified and protected by other governments? In terms of the French government, their laws on asylum are strict, with, by the 20th of October 2015, 74% of asylum applications being rejected.[7] This view is, I feel, compacted into a quote, along with the view of the majority in the UK currently, from an article in the Independent:

“Take Brexit as an example: it cannot have helped dampen anti-European, anti-immigration and anti-establishment sentiments in this country when a large, chaotic refugee camp just across the water was plainly visible as an image of European incompetence.”

The situation in Calais was a representation of European incompetence, but also one of the UK’s rejection of European values – that issues should be collectively dealt with as one big nation.

Furthermore, could the situation in Calais have constituted an infringement of Article 3 of the ECHR, “no one shall be subjected to…inhuman or degrading treatment”[8]? Article 1 of the Convention creates a positive obligation to ensure that everyone within French jurisdiction has their rights and freedoms secured – Article 3 included. The scenes at the refugee camp in Calais could display a failure to secure the Article 3 right, for which the French government would be liable.

The UK Home Secretary launched the ‘Syrian Vulnerable Person Resettlement Programme’ in 2014, which followed the government’s refusal to participate in the UNHCR’s Syrian refugee resettlement programme. David Cameron’s promise of resettling 20,000 refugees by 2020 came after criticism of the Programme in its September 2015 extension. However, “the scheme would offer resettlement to Syrian refugees in Turkey, Jordan and Lebanon, rather than to those who had already travelled to Europe”.[9] Was the UK government blind to the fact that there were thousands of refugees on its doorstep? Surely the effectiveness of the UK’s response could have been provided by not only committing financial, humanitarian aid to those in Syria, Turkey, Jordan, and Lebanon as well as surrounding countries, but also physical (resettlement) aid/response to those who have travelled and risked their lives to come to us?

There is no doubt that the UK’s contribution in terms of humanitarian aid has been significant, however, with the sheer numbers who are displaced within Syria and in the surrounding countries – is this response the most legitimate and effective one? The financial aid provided, as of November 2016, by the Department for International Development was £1.8 billion to Syria, Jordan, Lebanon, Turkey, Iraq, Egypt and regional countries – £1.2 billion of which has been spent.[10]

The question that should be posed is whether funnelling this money into a resettlement scheme, and better integration policies, would better protect refugees? The point should be raised that the UK’s integration policies are neither substantial nor effective – this was highlighted in the European Commission against Racism and Intolerance (ECRI) report. The ECRI stated that refugees often live in situations of poverty and social exclusion; the sole state service for integration, the Refugee Integration and Employment Service that tackled key issues for resettled refugees, including housing, welfare and employment, was closed down in 2011.[11] Could this be the answer as to why the government is intent on basing its support for refugees on financial aid? It potentially shows self-awareness of a weakness that the ECRI has clearly picked up on.

Brexit does not affect UK’s legal obligations

Article 14 of the Universal Declaration of Human Rights recognizes the right of persons to seek and enjoy asylum from persecution in other countries[12]; which actually suggests a clear right to ‘enjoy’ asylum. However, the clue is in the title… this is merely a declaration and has no binding effect on the UK – perhaps an ideal picture that was painted but never hung on the wall. Should there be a right to asylum? In light of the devastating scenes of drowning refugees that have occurred because of their desperation to reach safety[13], a right to asylum for refugees defined under the Convention would seem the humane position.

When it comes to the depiction of refugees in the media, commentators have noted that “media coverage was seen as largely negative, with little sympathy for refugees’ lives and problems”.[14] This has been somewhat amplified by Brexit, where immigration was seen as the key issue above all others in the media, and in live debates. Refugees have been deliberately confused with migrants in the media – an example is a piece on the Mail Online: “Another all-male coachload of ‘child’ migrants arrives in Britain”.[15] Brexit is being used as an excuse to cut down immigration; however, this is affecting those genuinely in need of asylum due to the fear of persecution and violence in their home state. This is a potential violation of Article 33 of the Refugee Convention – a contracting state shall not expel a refugee to territories where their life or freedom would be threatened.[16] This was incorporated into UK law by the 1996 Asylum and Immigration Act, much like the ECHR was brought in under the Human Rights Act 1998, Therefore the UK’s obligations towards refugees will not necessarily change following Brexit, as for one the HRA will still be law (unless it is repealed), and the Refugee Convention will still be a part of our system.

Event running at SHU on this topic

I hope this blogpost has highlighted some issues that have arisen in relation to the UK and how it has responded to the refugee crisis, as well as current trends within our region and how they have influenced this response. Whether the UK’s response has been both legitimate and effective or not is something that everyone is entitled to an opinion on – mine is one of thinking we could have done, and should do, more.

If you found this article interesting then an event is running set up by me and a fellow student with the support of the law school at SHU on this topic. The details of date and time will appear at the end of this post. It is a part of the Human Rights Project running at SHU, which involves students independently studying an area of human rights law, and creating an event or promotion relating to the area.

Our event is a mini-conference on the effectiveness of the UK’s response to the refugee crisis. We have 3 confirmed guest speakers, with one more to be confirmed. We have Miroslav Baros, Senior Lecturer at SHU and an author on this blog; Daria Davitti, an Assistant Professor from the University of Nottingham, who has a background in professional human rights work and teaches Refugee Law at Nottingham; and a representative from the British Red Cross Project in Britain which is working to reunite families who have been separated due to conflict.

The conference will have an interactive element with a question and answer session with our guest speakers. We hope to have refreshments subject to budget restrictions – we are students!

The event is on the 8th of March 2017 between 3 and 5 pm in the Peak Lecture Theatre at the City Campus of SHU; just up from Sheffield Station.

 

Footnotes

[1] UNHCR, ‘Global Trends: Forced Displacement in 2015’ (UNHCR 2016) pg 3 https://s3.amazonaws.com/unhcrsharedmedia/2016/2016-06-20-global-trends/2016-06-14-Global-Trends-2015.pdf. Accessed 28/11/16

[2]Jeffrey H. Cohen, ‘Where have 4.8 million Syrian refugees gone?’, The Conversation (Ohio, 18 April 2016) http://theconversation.com/where-have-4-8-million-syrian-refugees-gone-57968

[3] Gina Clayton, ‘Immigration and Asylum Law’ (7th edn, OUP, 2016) pg 439

[4] Convention and Protocol Relating to the Status of Refugees 1951, art 1(2)

[5] National Audit Office, ‘The Syrian Vulnerable Persons Resettlement programme’ (Home Office, 13 September 2016) https://www.nao.org.uk/wp-content/uploads/2016/09/The-Syrian-Vulnerable-Persons-Resettlement-programme.pdf accessed 3 December 2016

[6] Claire Milne, ‘Counting the number of migrants in the Calais ‘jungle”, Full Fact (31 August 2016) https://fullfact.org/immigration/counting-number-migrants-calais-jungle/ accessed 3 December 2016

[7] Cour des Comptes, ‘The reception and accommodation of asylum seekers’ (French Court of Audit, 20 October 2016)  http://www.ccomptes.fr/Actualites/Archives/L-accueil-et-l-hebergement-des-demandeurs-d-asile accessed 3 December 2016

[8] European Convention for the Protection of Human Right and Fundamental Freedoms 1950 art 3

[9] Melanie Gower, Syrian Refugees and the UK response, House of Commons Briefing Paper, Number 06805, 10 June 2016

[10] Department for International Development, ‘Syria Crisis Response Summary’ (DFID, 1 November 2016) https://www.gov.uk/government/publications/factsheet-the-uks-humanitarian-aid-response-to-the-syria-crisis accessed 3rd December 2016

[11] Council of Europe: European Commission Against Racism and Intolerance (ECRI), ECRI Report on the United Kingdom (fifth monitering cycle), 4 October 2016, http://www.refworld.org/docid/5836d07c7.html [accessed 1 December 2016]

[12] The Universal Declaration of Human Rights 1948, art 14(1)

[13] Al Jazeera, ‘UNHCR: 2,500 refugees drowned on way to Europe in 2016’ (Al Jazeera, 31 May 2016) http://www.aljazeera.com/news/2016/05/unhcr-2500-refugees-drowned-europe-2016-160531104504090.html accessed 30/11/16

[14] Greg Philo, ‘Bad News for Refugees’ (Pluto Press, 2013) pg 153

[15] Sam Tonkin, ‘Another all-male coachload of ‘child’ migrants arrives in Britain – but officials won’t say how many people there are and won’t do dental checks to prove they’re really children’ (Mail Online, 19 October 2016) http://www.dailymail.co.uk/news/article-3850840/Third-batch-child-migrants-begin-journey-Calais-Jungle-UK-Home-Office-admit-two-thirds-past-children-lied-age-officials.html accessed 4 December 2016

[16] Ibid, art 33(1)

Clive Stafford Smith

Clive Stafford Smith, the director of the legal action charity Reprieve (www.reprieve.org.uk) who received an honorary doctorate from Sheffield Hallam University for his outstanding contribution to human rights law and opposing the death penalty delivered a lecture at Sheffield Hallam University on Wednesday, 23 November 2016.

Collective Security and Human Rights in the time of Trump: a New Opportunity?

Collective Security and Human Rights in the time of Trump: a New Opportunity?

I was listening to Manic Street Preachers lyrics the other night and I ruefully thought of eighties. Time is flying; doesn’t it? I love eighties. What a lovely song and verses I thought: “If you tolerate this, your children will be next…” powerful stuff and somehow very much applicable in the context of this provocative post! You see, I admit this is going to be a bit provocative with just one objective in mind and that is to spark a proper and meaningful debate.

In spite of my plea I proceed with great deal of trepidation and anticipation in the prevailing hostile atmosphere towards US President-elect after the presidential elections and before I even start writing this brief post I have to clarify that the focus will be on a single issue and that is the area of collective security, primarily frequent recourse to use of force outside UN Charter to “prevent” violations of human rights. The concept was therefore designed to circumvent the UN as the main global security organisation and which developed in the atmosphere of mistrust and hostility among the most powerful members of the UN Security Council. Yes, I am talking about the so-called “right of humanitarian intervention” and a more recent version and sophistication described as “Responsibility to Protect” and their role in protection of human rights.[1] Therefore, other relevant and highly controversial developments such as the use of drone strikes and the failure to close the Guantanamo, conceptually speaking do not fall under this particular category and remain outside the remit of the present contribution. So, the “New Chance” bit in the title of this post is exclusively meant for human rights aspect only – that bombing can lead to protection and promotion of human rights essentially, for which reason other prominent aspects, which respectfully but disproportionally attracted public and media attention during and after the elections, such as the character of US democracy, misogyny, racial and other types of equality, tolerance, erecting walls between countries etc, will not feature in this brief post . But I am of course open to discuss those relevant aspects as well and I invite audience to participate in that respect.

Human Rights in the context of Collective Security since the end of the Cold War

Appealing to humanitarianism and protection of dignity and human rights has a magical power. In fact, to the extent that population may be convinced that 500.000 child deaths and bombing a country to smithereens is “price worth paying” and very good for pursuing human rights![2] When NATO bombed Serbia in the “name of humanity” in 1999 and destroyed the country’s infrastructure and killed hundreds of civilians in the parts of the country totally unrelated to the province it wanted to liberate (!) Western media and establishment enthusiastically applauded the bombing campaign and even demanded more raids[3]

This rather awkward and grotesque (if I may?) appeal to a legal entitlement to bomb in the name of humanity was, for the time in the modern times made by the UK delegation during the United Nations Security Council’s (UNSC)  debates after the Gulf War in 1991when it argued that, in spite of SC’s refusal to authorise intervention inside Iraq itself, the coalition, as a matter of right, was entitled to expand the military intervention to the country in order to protect the population at risk from Saddam, which resulted in UNSC Resolution 688 in 1991[4]. This twisted argument was mainly rejected by the international community, but was occasionally invoked since its inception, prominently during the bombing campaign against Serbia in 1999. More recently, reference to “humanitarian protection” of a population was made in 2011 when the UN SC authorised the use of force to protect the population in the Libyan city of Benghazi[5], but Russia has subsequently regretted its stance (it abstained actually rather than supporting the intervention) and said that they felt “cheated” because the force was used for regime change, not in order to protect the population.[6]

Assessment

Ever since the very first invocation of the right to bomb in the name of humanity relations between the two most powerful nations within the UN SC have suffered a serious setback. About 30 SC resolutions have been vetoed with 35 no votes cast by the US, Russia and China. The US is now the most frequent user of the veto having resorted to it 16 times between January 1990 with the overwhelming majority of which (14) pertain to the Israel/Palestine situation. The Russian Federation comes in second with 11 vetoes – six of which have been issued jointly with China,[7] adding to the dangerous and increasing division among the UNSC permanent membership.[8]

The UK delegation’s invocation of a right to militarily intervene outside the UN as stated above was conveniently and expeditiously made as soon as the very first occasion arose: how to deal with the “evil” Saddam’s regime in 1991. Not only governments’ officials but even some academics enthusiastically applauded the newly emerging concept and wanted to extend the claim even further.[9] Symptomatic of the phenomenon was the political tension developed during the crisis regarding the legality of proposed NATO action against Serbia. During an intense diplomatic push and a series of strained phone calls between US Secretary of State and UK Foreign Secretary the latter cited problems ‘with our lawyers’ over using force in the absence of UN endorsement, to which US Secretary simply replied: ‘Get new lawyers’[10].

But in spite of this appeal to “humanitarianism” people in the affected regions and elsewhere (Bosnia, Rwanda) continue to suffer. This was explicitly recognised even by the UN itself.[11]

With the 9/11 terrorist attacks it became evident that that the concept had very little to do with humanity, but much more with political convenience. Concerns about humanity were quickly replaced with concerns about security and emphasis shifted from humanitarianism to preventing terrorist attacks, which in itself brought further tension with human rights.[12] So, the concept expectedly collapsed so to speak but the question of overriding the principles of national sovereignty and equality among nations, as enshrined in the UN Charter (Article 2 (4) and 2 (7) did not relent and, mainly due to a personal engagement in the issue by the then UN Secretary General a new idea was born, titled “responsibility to protect” this time rather than infamous reference to “bombing in the name of humanity” in the previous concept. The new concept does envisage the UN SC approval it has to be said, but in many other ways it is pretty reminiscent of the “right of humanitarian intervention” because it does allow for the use of force and violation of the territorial integrity and political independence of a country that did not attack any other country. It has to be emphasised that the invocation of the concept kind of coincided with the aggression against Iraq in 2003, which had devastating impact on its own development and legitimacy because the Iraqi war was, in part premised on “responsibility to protect”, after the infamous claim of the Iraqi regime possessing the weapons of mass destruction and the fragile legal basis of “pre-emptive self-defence” collapsed (what do you think about this one my dear reader? Seriously, “I am using force today because I feel you are going to use force against me tomorrow” Wow! I am really struggling at this stage to contain myself. You know what, I am not going to say anything about the “45 minute dossier”; I’d better shut up at this stage! The subsequent developments demonstrated that the vast majority of nations were not willing to approve this concept either[13]. The common feature in both concepts is the use of military force against a state for a reason not stated in UN Charter; it falls neither under Article 39 nor Article 51: neither that a situation represents a threat to the international peace and security nor the exercise of the inherent right of self-defence, but solely on the basis that a regime has violated its people’s human rights or failed to protect its population from genocide and crimes against humanity. This common feature inevitably pins both concepts against the principle of national sovereignty and the whole UN system.

The next in a series of attempts to inject international relations with more humanity and responsibility was the establishment of a permanent international criminal court to deal with individual criminal responsibility culminating with the Rome Statute in 2000. Although established outside the UN, the big players were careful not to commit themselves genuinely to the idea; the US signed the Statute but the very first action by the then newly elected president in 2000 was to state that the US would not have anything to do with the Court.[14] Recently, several African nations withdrew and finally in November 2016 the Russian Federation also expressed its position that it would not ratify the Rome Statute.[15] Up to date, the ICC has prosecuted 39 officials from eight African countries but has failed to indict a single person who is not African![16] Not that I glee over now but I predicted this kind of outcome in 2003[17].

In the light of the above, it is pretty safe to conclude that human rights suffered a serious setback during the “hot peace” due to a total lack of cooperation and meaningful debate within the UN SC and even among other UN bodies and increased hostility among the two most powerful nations. The newly created institutions were essentially used to shield the most powerful players rather than to extend the protection of human rights as cynical attitude towards the ICC has clearly demonstrated. It is in this context that I wish to express hope that things can only get better with the US President-elect, who argued throughout the election campaign that hostility should be replaced by cooperation and fairness. Additionally, the most likely candidate for the President-elect Security Adviser, Mr Flynn in his recent public comments at the Republican National Convention, has expressed his belief that Washington should work more closely with Moscow. Or for those who prefer and pursue a negative tone (as many do after the US presidential elections) may I rephrase: human rights have suffered enough during the “hot peace” and things could not get any worse!

[1] For introductory reading see: R. Wedgwood, ‘Kosovo and the Law of “Humanitarian Intervention”‘ (1999) 93 A.J.I.L. p. 832; V. Nanda, ‘Tragedies in Somalia, Yugoslavia, Haiti, Rwanda and Liberia – Revisiting the Validity of Humanitarian Intervention under International Law’ Part II (1998) 26 Denv. J.I.L. & Pols. p. 827.

[2] M. Albright’s statement, please see, but not for fainthearted: https://www.youtube.com/watch?v=omnskeu-puE . I draw your attention my dear reader to the fact that the former Secretary of State tried to withdraw the statement, but you know YouTube! It’s still there!.

[3] The Sun, ‘Bomb, Bomb, Bomb’, 28 March, 1999; see also: P. Benvenuti, ‘The ICTY’s Prosecutor and the Review of the NATO Bombing Campaign against the Federal Republic of Yugoslavia’ SYMPOSIUM: The International Legal Fallout from Kosovo, supra 1, p. 503; M. Bothe, ‘The Protection of the Civilian Population and NATO Bombing on Yugoslavia: Comments on a Report to the Prosecutor of the ICTY’ ibid., p. 531.

[4] See J. A. Gallant, ‘Humanitarian Intervention and Security Council Resolution 688: A Reappraisal in Light of a Changing World Order’ American University International Law Review, 1992, vol. 7, issue 4.

[5] UN Doc, SC Res 1973, 2011.

[6] http://www.globalresearch.ca/the-war-on-libya-nato-uses-and-abuses-the-united-nations-the-role-of-russia/26294.

[7] http://theconversation.com/hard-evidence-who-uses-veto-in-the-un-security-council-most-often-and-for-what-29907 accessed 25/11/2016.

[8] The power of veto is not explicitly envisaged in the UN Charter, but the fact that substantive decisions by the UNSC require “the concurring votes of the permanent members”, means that any of those permanent members can prevent the adoption, by the SC, of any draft resolutions on substantive matters. For this reason, the power of veto is also referred to as the principle of “great power unanimity”.

[9] F.R. Tesón, Humanitarian Intervention: An Inquiry into Law and Morality, New York, 1997 Transnational Publishers, 2nd ed; T. Franck,  ‘The Emerging Right to Democratic Governance’ The American Journal of International Law, Vol. 86, No. 1, 1992, pp. 46-91; arguing for a new legal basis for using external force to inforce the results of elections. How does the latter one sound to the reader?

[10] James Rubin, ‘Countdown to a Very Personal War’, Financial Times, 30 September 2000.

[11] UNICEF — Results of the 1999 Iraq Child and Maternal Mortality Surveys”. Federation of American Scientists; United Nations Humanitarian Coordinator in Baghdad, Iraq, who resigned in October 1998 after a 34-year career said:  “I don’t want to administer a programme that satisfies the definition of genocide”!

[12] A. Cottey, ‘Beyond Humanitarian Intervention: the New Politics of Peacekeeping and Intervention’ Contemporary Politics, 2008, p. 429.

[13] Between 2009 and 2011 there were attempts within the UN General Assembly to develop the concept further, essentially to gain more legitimacy. Those were titled: General Assembly debates on Responsibility to Protect and General Assembly Interactive Dialogue on Early Warning, Assessment and Responsibility to Protect; General Assembly Informal Interactive Dialogue on the Role of Regional and Sub-Regional Arrangements in Implementing the Responsibility to Protect. At those only 42 states took part in the discussion. See: http://www.globalr2p.org/resources/341.

[14] The Government of the United States of America informed the Secretary-General of the following: “This is to inform, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000”

– see http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXVIII/treaty10.asp. accessed 25/11/2016.

[15] https://www.theguardian.com/world/2016/nov/16/russia-withdraws-signature-from-international-criminal-court-statute accessed 25/11/2016.

[16] http://www.globalresearch.ca/us-impunity-erodes-world-justice-african-countries-to-withdraw-from-international-criminal-court-icc/5552968 accessed 25/11/2016.

[17] M. Baros, The Establishment of the International Criminal Court: Institutionalising Expedience? Hertfordshire Law Journal, 1(1), 58-72; https://www.herts.ac.uk/__data/assets/pdf_file/0007/38626/HLJ_V1I1_Baros.pdf).