radiofree.asia

Category: Law

  • Britain risks creating new Guantánamo in Syria, says rights group

    Charity Reprieve criticises government’s ‘abdication of responsibility’ over Shamima Begum

    Britain risks creating “a new Guantánamo” in Syria by leaving Shamima Begum and others like her stranded in Syrian detention camps, it has been claimed, after the supreme court rejected Begum’s appeal against a decision to revoke her UK citizenship.

    A key figure who has been involved with Begum’s case said the judgment left the 21-year-old in a legal limbo, unable to return to the UK or mount an effective challenge to the deprivation decision remotely.

    Related: Shamima Begum is a victim of trafficking – and the UK should treat her as such | Maya Foa

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • The Guardian view on Shamima Begum: she ought to have her day in court | Editorial

    The supreme court’s decision to allow this formerly British woman to be exiled does more harm to the public interest than bringing her back

    Shamima Begum was born and brought up in London, as a British citizen. Six years ago, when she was 15, she and two other girls, Amira Abase and Kadiza Sultana, left the UK to join Islamic State. Today, Ms Begum is the widowed mother of three dead children, imprisoned in the al-Roj camp in territory controlled by Syrian Kurds. On Friday, the UK supreme court reversed a decision by the court of appeal, judged that she is not entitled to have her British citizenship restored, and that she should not be allowed to return to the UK to fight her case in person.

    These are wrong rulings. The UK is the correct place for an examination of this British-born woman’s mistakes or crimes, however horrific. By exiling her, as the court decided that the then home secretary, Sajid Javid, was entitled to do, the UK is ducking its international responsibilities. Ms Begum cannot properly instruct lawyers. The court held out the faint hope that a “fair hearing” could possibly take place at some future date. In the meantime, it is hard to see why other countries, or non-state actors such as the Syrian Kurds, should have to detain British fighters or their families (around 60 British adults and children remain in detention in Syria). For Britain to offload Ms Begum, on grounds that this would not make her stateless because her heritage entitles her to apply for citizenship of Bangladesh (where she has never been), is an abuse of position and of history.

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • Stifling The Voices Of Dissent: The Tale Of The Farmers’ Protests In India

    Public protests are a hallmark of a free, democratic society and an important tool for people to show their dissatisfaction towards the actions of a government. India, primarily an agrarian economy, has 70% of the population depending extensively on the success of the agriculture sector for their basic subsistence. Even during the ongoing global pandemic, this sector has been a major contributor to the economic stability of the country.

    The agriculture reforms (Farm Bills) were pushed by the government in the wake of the pandemic, which were believed to raise the standard of productivity of the agriculture sector as well as bolster private investment. The first amendment to the Essential Commodities Act deregulates the cap on the storage of food, thus threatening national food security. The second amendment to the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 restricts the government role in the agricultural market leaving it susceptible to the market forces. The third amendment to the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, introduces the provisions for contract farming in the country, thereby allowing the entry of corporate houses in the agriculture sector. The ‘Farm Bills’ are said to weaken the farmers’ negotiating powers as well as open up the market to corporate companies, thus giving them the power to dictate terms to the farmers.

    However, the said reforms were devised without any prior consultation to the farming states or farming groups of the country. The bills were introduced as ordinances in June 2020 and passed by the Parliament in September 2020, during the monsoon session without debate or discussion on the same.

    Therefore, the world today is witnessing one of the largest organized strikes in human history with over 250 million farmers in India sitting on the borders of the national capital, New Delhi in a bone-chilling winter for more than two months. The protest centers around the demand for repealing the three agriculture reform bills and introducing legal provisions for an assured minimum support price.

    Restricting a Peaceful Protest

    The initial stages of the protest from June to November 2020 were characterized by various peaceful sit-ins and railway blockages in the states of Punjab and Haryana. With no response or redressal from the central government in the meetings held on October 14 and November 13, the farmers decided to stage a peaceful protest in the national capital on November 26.

    The actions of the state to stifle the peaceful protest by using various means go against the spirit of democracy and are violative of the right to assemble peacefully and freedom of movement within the country enshrined in the Article 19 of the Constitution of India and Article 20 of The Universal Declaration of Human Rights, Article 21 and 22 of the International Covenant on Civil and Political Rights which are signed and ratified by India.

    The use of Police Force 

    Initially, the government tried to thwart these peaceful protests by barricading the highways, digging trenches in the roads and parking heavy trucks filled with sand on the roads leading to the Capital. The police even used water cannons and tear gas shells on unarmed farmers without considering their safety, to stop them from entering the capital.

    Thereafter, on January 26, 2021, the peaceful tractor rally organized by farmers turned violent as the police used tear gas and excessive force to dispel the protesters, injuring many. In consequence, the authorities imposed legal restrictions on the assembly of people. Enforcing the same, many protesters have been detained and cases have been filed against the farmer union leaders. The authorities have ‘fortified the borders’ of the national capital by the use of spikes, concrete barricades and trenches to prohibit the entry of protestors.

    Threats and Coercion 

    Apart from the direct use of force against the protesting farmers, the government even adopted indirect means by using the state’s machinery to weaken the protest by sending investigation agencies after the farmers and organizations aiding the protest. This can be seen through the use of the National Investigation Agency, to summon farmer leaders and even NGO organisers for cases registered against them under the provisions of the Indian Penal Code (IPC) and the Unlawful Activities Prevention Act (UAPA). There have been Income Tax raids and inquiries against the farmer agents of Punjab for adding pressure on the ongoing agitation and  attempt to dissuade the movement.

    The government has also tried to silence journalists and politicians speaking in favour of the protest by either arresting them or charging them with sedition for causing disharmony via their tweets and by misreporting facts. A journalist Mandeep Punia was brutally assaulted, arrested and later detained in judicial custody for allegedly obstructing the policemen in the discharge of their duties as an attempt to clampdown journalist activities. The Twitter accounts of individuals, organizations supporting farmers protest and several news agencies were also suspended to restrict live reporting from the protest sites.

    Additionally, the internet services were suspended on the sites of the protest and in several districts of Haryana under the lieu of maintaining public order which led to a complete information blackout for the protesting farmers and limited their access to the developments around the border area.

    The Role of Judiciary 

    The government approached the Supreme Court of the country to call off the protest, wherein the Apex Court refusing to call for the dispersal of the protest, recognised the right to peaceful protest as a constitutional right of the people. In addition to this, the Supreme Court also stayed the execution of the enacted laws. Subsequently, an expert committee has been set up to review the reforms, which is to present a detailed report after conducting a stakeholder analysis.

    In contradiction, the Supreme Court and Delhi High Court have respectively refused to conduct an independent investigation into the incident occurring on January 26 and denied an application filed to release the illegally detained farmers by the police. Thus, making the stance of the judiciary inconsistent on the matter.

    Sustaining the Protest 

    In a democracy dissent and dialogue should ideally continue simultaneously. But the state remains duty-bound to ensure the wellbeing of the people at all times. With the protesting farmers being denied entry into the capital, the protest has continued unconventionally for over two months on the national highways at seven different locations in harsh winter. The authorities have taken on a nonchalant approach towards efforts ensuring the accessibility of basic provisions like food, water, warm clothing, shelter, waste disposal, health and sanitation facilities. The excessive barricading at the protest sites have cut access for the people to sanitation and water provisions, thus causing many hardships. The government violates its obligations to ensure the right to health and human dignity by not providing for provisions to the protesting farmers.

    A survey of the basic amenities available at the protest sites highlights the troubles faced by the protesters, especially the women due to lack of accessible toilet and sanitation facilities. The protest has been solely sustained by the efforts of various NGOs and volunteer organizations working tirelessly to make ends meet by trying to provide basic necessities like food, medicines and tents to brave the weather for all the people sitting at the borders.

    International Support

    The farmers’ agitation started as a local movement and drew global support, with leaders of various countries and organizations around the world being vocal about their support. Even the Secretary-General of the United Nations has commented on the Right of the people to demonstrate peacefully without interference by the authorities.

    Additionally, global media houses have given extensive coverage of the various developments of the agitation. Even international personalities have banded together to show their solidarity with the movement. The farmers’ protest also gained international impetus with people of the Indian diaspora as well as farmers of various countries voicing their support for the farmers’ agitation against the laws.

    The way Forward

    Despite the agriculture sector being the backbone of the Indian economy, it remains the most overlooked and neglected till date with a mere 2% of the total budget allocated to it. According to records farmer suicides account for an estimated 7.4% of the total suicides committed in the country due to numerous reasons like crop failure, land inequality, excessive debt burdens and minimum social security provided by the government.

    Hence, the agitating farmers have faced grave violations of their freedoms and liberties guaranteed under law. There is an urgent need for reforms in the agricultural sector. However, the present reforms harbour many grievances for the farmers who are the primary stakeholders in the same.

    Peacefully protesting and voicing dissent are important rights of the citizens in a democracy. The continuous use of disproportionate and excessive force on these protesters by the state is unjustified and is in breach of internationally and constitutionally guaranteed human rights.

    Thus, instead of discrediting and silencing the dissent, there needs to be a constructive dialogue that includes farmers in consultations on the provisions of the agricultural reform proposals. This will ensure that the new reforms are not merely imposed on the majority of the population, but rather understood and willfully welcomed.

    This post was originally published on LSE Human Rights.

  • A new Guantánamo film reminds us of the ongoing denial of human rights | Shami Chakrabarti

    The Mauritanian tells the true story of Mohamedou Ould Slahi, whose plight has left a stain on ideas of Anglo-American justice

    I started work at Liberty, the civil rights advocacy group, the day before the September 11 attacks. I recall the feeling of doom: it is important to remember the devastating loss of life on that day – 3,000 people from all over the world – in an event that is now often subject to denialist conspiracy theories. Soon after, British ministers were contemplating far-reaching “security measures” against the background of fear that the same could happen in London. Surveying the entire population was a price worth paying, they said.

    Having worked at the Home Office before joining Liberty, I knew the that way Britain treated migrants – who are subject to fewer protections than citizens – might well become the framework for the UK’s draconian approach to anyone suspected of terrorism. But I never predicted how long the post-9/11 legacy would linger. And with my Hollywood ideals of Anglo-American constitutional norms, reflected in movies such as A Few Good Men, I never imagined that the use of torture would become a systematic technique of interrogation.

    Related: The UK government is attempting to bend the rules on torture | Nicholas Mercer

    Lady Shami Chakrabarti was shadow attorney general for England and Wales from 2016 to 2020 and director of Liberty from 2003 to 2016

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • Grand Chamber judgment in the case of Selahattin Demirtaş v. Turkey (no. 2)

    The European Court of Human Rights (ECtHR) delivered its Grand Chamber judgment in Selahattin Demirtaş v Turkey (No. 2) (application no. 14305/17) on 22nd December 2020. The applicant, Mr Demirtaş, (who is still detained in Turkey, at the time of writing this blog article) was one of the co-chairs of the Peoples’ Democratic Party (HDP). Between 2007 and 2018, he was a member of the Turkish Grand National Assembly and stood in the 2014 and 2018 presidential elections (§15, 16).

    Beginning on 2 October 2014, protests against the Daesh attacks on Kobani took place in Turkey (§18). On 6 October, these protests turned violent as different groups clashed and the security forces intervened (§23). The President of Turkey gave a statement to the press blaming the HDP leaders (§35).

    On 4 November 2016 twelve HDP members of parliament, including Mr Demirtaş, were detained by the Diyarbakır 2nd Magistrate’s Court based on the accusation of being a member of an armed terrorist organisation and incitement to commit an offence (§70). On 7 December 2018 Mr Demirtaş began a prison sentence of four years and eight months (§291).

    On 9 June 2020 the Constitutional Court, the highest court in Turkey, issued a judgment, finding unanimously that a violation of Article 19 § 7 of the Turkish Constitution (corresponding to Article 5 § 3 of the Convention) had occurred due to the period of time Mr Demirtaş had been in pre-trial detention (§121). The Constitutional Court declared that there had not been relevant or sufficient grounds to extend his detention (§128).

    In addition, the ECtHR Chamber judgment was delivered on 20 November 2018. After this judgment, the case was referred to the Grand Chamber.

    Judgment of the Grand Chamber

    Article 10

    The Court concluded that Mr Demirtaş’s right to freedom of expression enshrined in Article 10 had been violated by the lifting of his parliamentary immunity, his first and continuing pre-trial detention, and the prosecution for terrorism-related offences on the basis of political speeches he had made (§270,281 and 282).

    Article 5 § 1 and 3

    As regards Article 5, the domestic courts had not presented any specific facts or information that could have led to a suspicion necessitating the detention of the applicant before trial, nor at any time during his detention. Hence, there was no reasonable suspicion that he had committed the offences in question. As a result, the Court found that Article 5 was violated (§340, 354).

    Article 3 of Protocol No. 1

    The Court concluded that the domestic courts had been in contravention of their procedural obligation under Article 3 of Protocol No. 1 because they had not established whether or not Mr Demirtaş had been entitled to parliamentary immunity for the statements on the basis of which the prosecution had been commenced (§397, 398).

    Article 18 in conjunction with Article 5

    The Court declared that the grounds submitted by the authorities for the detention of the applicant was intended to mask an ulterior political purpose, a very serious matter for democracy (§436). Therefore, a violation of Article 18 of the Convention in conjunction with Article 5 (§438) had occurred.

    Article 46

    The Court declared that the respondent State must take all necessary measures to ensure the immediate release of the applicant (§442).

    Comment

    In this judgment, there are several important points as follows:

    Firstly, the Court concluded that in Turkey arrests and trials take place on political grounds and that at the present time the political conditions in Turkey are not conducive to the implementation of the Convention or the establishing of democracy. This judgment clearly differs from earlier case-law, where the Court seemed reluctant to properly criticise the state of democracy in Turkey. Here, however, it indicates that the continuation of Demirtaş’ detention is emblematic of the current undemocratic nature of the Turkish political landscape. It gives as an example the fact that Demirtaş was unable to participate and campaign in two elections. The judgment also shares concerns that the judicial system in Turkey is not independent and impartial. Consequently, the Court found that the applicant is being held in detention for political reasons, being a violation of Article 18 in combination with Article 5, the first time the Court has handed down such a judgment.

    Secondly, this judgment of a violation of Article 18 also rules out the possibility that Demirtaş could be released and then re-arrested for political reasons. The judgment also encapsulates all the other HDP MPs who were detained on politically motivated charges. Hence, the Court’s reliance on Article 18 was a smart decision inasmuch as it ensures that the Demirtaş judgement has a broader effect.

    Thirdly, what makes this judgment interesting is that the Court reminds contracting states of their obligations contained in Article 46. The reason for this stance of the Court is the attitude of Turkish government officials to Court judgments. For instance, following the judgment handed down in 2018, President Recep Tayyip Erdoğan said: “The decisions delivered by the ECHR do not bind us”. In this judgment, the Court is sending a clear message to the politicians in Turkey regarding their obligations arising from the Convention, stressing once again the significance of Article 46.

    Finally, this judgment is also a serious test for the Council of Europe. Given the statements made by Turkish leaders that they would not abide by the judgment, people are curious as to what steps the Council of Europe will take in order to safeguard the reputation of the Court. In other words, this judgment is important as it has reignited the long-running debate as to whether the Committee of Ministers and the Parliamentary Assembly take judgments of the Court seriously and to what degree they protect the prestige of the Court.

    This post was originally published on LSE Human Rights.

  • Francis Deutsch obituary

    My foster brother, Francis Deutsch, has died aged 94 from Covid-19, following a short illness. He was an outstanding radical lawyer and a pioneer of legal policy, whose life was driven by a sense of justice, belief in democracy and commitment to support the most vulnerable in society.

    Francis came to the UK from Austria on the Kindertransport at the age of 13, arriving in Harwich, Essex, speaking no English. He was fostered by my father, Leslie Wollen, a Methodist minister, and his wife, Hilda (nee Young); he settled happily, remaining in close contact with the family. At the age of 21, he went back to wartorn Europe for two years to help with the resettlement of German refugees in the International Voluntary Service, using his native German language in working towards peace and reconciliation.

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • UK’s anti-terror chief fears rights group boycott threatens Prevent review

    Neil Basu says move to protest appointment of William Shawcross could harm process

    Britain’s best chance of reducing terrorist violence risks being damaged amid a huge backlash to the government’s choice of William Shawcross to lead a review of Prevent, the country’s top counter-terrorism officer has told the Guardian.

    Assistant commissioner Neil Basu’s comments came after key human rights and Muslim groups announced a boycott of the official review of Prevent, which aims to stop Britons being radicalised into violent extremism.

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • Hidden dangers in the proposed free speech law | Letters

    Readers respond to planned legislation that will allow students, academics or visiting speakers to sue English universities

    I read with alarm about the proposed free speech law and the government’s plans for a university “free speech champion” (Proposed free speech law will make English universities liable for breaches, 16 February).

    I want to highlight the significant work of students to promote free speech, including hosting speakers drawn from a broad political spectrum and facilitating debates about the most controversial issues of the day, such as interpretations of feminism, Islam, and gender identity.

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • Celine McNicholas and Joanne Doroshow on Forced Arbitration, Kate Bronfrenbrenner on NLRB

    This week on CounterSpin: One of the more hopeful things you might not have heard about is the revival in the House of Representatives of the Forced Arbitration Injustice Repeal, or FAIR, Act, that would ban those ubiquitous small-print “agreements” that annul critical worker and consumer rights, like the ability to bring class action lawsuits. Prominent proponents include Google employees and former Fox News anchor Gretchen Carlson; but as bill sponsor Hank Johnson of Georgia explained, it’s really about narrowing the “massive power differential between soulless corporations and individuals just trying to get by.” We get some background on forced arbitration and why it matters from previous CounterSpin conversations with Celine McNicholas from the Economic Policy Institute and Joanne Doroshow from the Center for Justice and Democracy.

    Labor picket line

    (cc photo: USW Local 8599)

    An important if often hidden engine of the corporate corrosion of worker/consumer rights has been the National Labor Relations Board, the federal enforcer of labor law. It seems like change is afoot: Biden apparently called for the resignation of the Board’s general counsel, famously anti-union Peter Robb, 23 minutes after becoming president, fired him when he refused to resign, and then fired the next Trump appointee who took the job. We talked about the Trump-era NLRB while it was happening with Cornell University’s Kate Bronfrenbrenner. We hear part of that conversation this week.

     

    This post was originally published on FAIR.

  • ECHR tells Russia to free Alexei Navalny on safety grounds

    Russia says it will ignore ruling, which it calls a ‘blatant and gross interference’ in its affairs

    The European court of human rights has told Russia to free Alexei Navalny, prompting a new standoff between Europe and Moscow over the fate of Vladimir Putin’s staunchest critic.

    Russia has said it will ignore the ruling despite a requirement to comply as a member of the Council of Europe, calling the court’s decision “blatant and gross interference in the judicial affairs of a sovereign state”.

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • Jamaica should repeal homophobic laws, rights tribunal rules

    Commission finds Jamaican government responsible for violating the rights of two gay people

    The Jamaican government is responsible for violating the rights of two gay people and the country’s homophobic laws should be repealed immediately, according to a ruling by an international human rights tribunal.

    The decision by the Inter-American Commission on Human Rights sets a precedent for LGBT rights across the Caribbean and is the commission’s first finding that laws that criminalise LGBT people violate international law.

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • Key pro-democracy figures go on trial over Hong Kong protests

    Veteran activist Lee Cheuk-yan accuses police and government of depriving Hongkongers of constitutional rights

    A veteran champion of democracy in Hong Kong has described its legal system as an instrument of political suppression, after he and eight other high-profile figures went on trial in one of the biggest court cases linked to the protest movement that paralysed the city for more than a year.

    “It’s the department of justice, the police department and the Hong Kong government who should be on trial because they have deprived us of our constitutional rights,” said Lee Cheuk-yan after the day’s proceedings. “This year is the year of the ox so we should be stubborn as an ox.”

    Related: Hong Kong: 1.7m people defy police to march in pouring rain

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • Proposed free speech law will make English universities liable for breaches

    No-platformed speakers could get compensation under plans unveiled by Gavin Williamson

    The government is to introduce legislation that will enable academics, students or visiting speakers who are no-platformed to sue universities for compensation where they feel they have suffered because of free speech infringements.

    The proposal is one of a range of legal measures put forward by the education secretary, Gavin Williamson, as part of the government’s manifesto commitment to protect free speech and academic freedom in universities in England.

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • UK government accused of ‘dragging heels’ on racism

    Rejection of select committee’s recommendations on Black people and human rights prompts criticism

    The government is still “dragging its heels” on racism, according to MPs and race equality campaigners critical of its response to a damning parliamentary report on Black people and human rights.

    The government’s official response to the human rights select committee’s report was published on Thursday and rejected the majority of the parliamentarians’ 22 recommendations.

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • Saudi Arabia’s release of Loujain al-Hathloul an overture to Biden

    Analysis: Mohammed bin Salman views the move as an attempt to engage the new US administration

    As Loujain al-Hathloul marked her first day outside prison in nearly three years, Saudi Arabia’s de facto leader, Mohammed bin Salman, was bracing for a reaction from Washington to what amounts to a peace offering on his part.

    Prince Mohammed views the decision to release the women’s rights activist as an attempt to belatedly engage the new administration, whose strident tone on human rights issues in its early weeks of office has all but conditioned a working relationship with Riyadh on righting the wrongs of the Trump years.

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • Human Trafficking in India: How the Colonial Legacy of the Anti-Human Trafficking Regime Undermines Migrant and Worker Agency

    Since the beginning of COVID-19 pandemic, concerns about migrant workers’ rights and conditions in India have been very much in the news and have been escalated, yet the response from the Indian government is feeble (Janwalkar, 2020; Rukmini, 2020; Francis and Uniyal, 2021). Subir Sinha recently notes that Covid-19 has deepened existing inequalities, which blur the lines between waged, coerced and trafficked labour in India (Sinha, 2020). There are also reports showing a rise in trafficking cases in India because of this current pandemic situation (News18 Networks, 2020). In response to these concerns, the Women Safety Division  of the Indian Ministry of Home Affairs issued an advisory, since July 2020, advising all states and Union Territories (UTs) for the urgent establishment of new Anti-Human Trafficking Units (AHTUs), and/or upgrade infrastructure in existing ones (Janyala, 2021). AHTUs in India are special police units, devoted to tackle human trafficking. Following MHA advisory, a recent report of 16 states and UTs suggest that 225 AHTUs existed only on paper, and only 27 percent of the AHTUs were operational (Janyala, 2021). While the MHA advisory has triggered more attention among anti-trafficking activists, increasing demands for quickly setting up AHTUs in all districts (Janyala, 2021), yet the highlighted claim of the report (that shows incompetence of AHTUs) indicates that MHA advisory, and demand for establishing AHTUs, is not enough. The proposed intervention is distorted by its failure to account for the colonial legacy and present contestations in policies that conflates the conception of human trafficking with the social control of consenting adult sex work and migration (e.g. see Bhattacherya, 2018; Giammarinaro and Boola, 2018). Successive attempts to reform the legal definition of human trafficking and interventions have resulted in the application of excessive and arbitrary state power and bureaucratic control (Tandon, 2015). These efforts reflect a misplaced focus on law enforcement rather than holistic human-rights based solutions that promote the agency of workers and migrants.

    Current policies regarding human trafficking in India carries colonial legacy and resulting harms. For instance, being a colonial construct, established by British Raj that aimed to serve their military, racial and colonial interests (Chang, 2007; Tambe, 2009), the conception of human trafficking was defined  by colonial regimes as the act of abduction and transport of women for prostitution (Irwin, 1996). This definition conflates human trafficking with prostitution, dispossessing  consenting adult sex worker’s concerns and rights (Tambe, 2009). Besides conflation with consenting adult sex work, the colonial prostitution governance created a regulatory system that vested unimpeded authorities to the institutions like Police or its regime, resulting criminalization and incarcerations of sex workers. For instance, Indian Contagious Disease Act of 1868 provided for compulsory registration of sex workers, and entailed being forced to stay back (without work) for an indefinite period, and subjected to incarceration (Banerjee, 2000; Tambe, 2009). The focus of human trafficking interventions on criminalisation of sex work continued and also got support from Indian nationalists, who later favoured laws reflecting a similar conflation of human trafficking and sex work and/or related professions in legislation such as the Madras Hindu Religious Endowments (Amendment) Act of 1929 (Sreenivas, 2011) and/or The Suppression of Immoral Traffic Acts (SITA) during the 1920s and 1930s (Legg, 2014). SITA was reintroduced after India’s independence, and later replaced by the Immoral Traffic (Prevention) Act, 1986 (ITPA). ITPA carries a parallel colonial legacy and design of SITA, conflating consenting adult sex work with trafficking, except for some minor changes (Cunha, 1987). Along with ITPA, India has also got additional provisions regarding human trafficking, with an amendment in section 370 of Indian Penal Code, which defines human trafficking as:

    Whoever, for the purpose of exploitation, recruits, transports, harbors, transfers, or receives, a person or persons, by using threats, or using force, or any other form of coercion, or by abduction, or by practising fraud, or deception, or by abuse of power, or by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harbored, transferred or received, commits the offence of trafficking. The expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude. The consent of the victim is immaterial in determination of the offence of trafficking” (Govt. of India, 2013: 5).

    This definition in section 370 not only continues conflation of human trafficking with sex work, but introduces its own difficulties: the broad definition captures many persons displaced by forced migration, denies targeted person’s agency, and gives unrestricted power to the state and bureaucratic regime and its institutions, including police. It also encourages a criminalisation approach to tackle trafficking. Indian Government’s National Crime Record Bureau (NCRB) collects data and present number of trafficking cases on the basis of this definition of 370. According to data, 95% of trafficked persons in India are forced into prostitution (Divya, 2020). The recent NCRB lists a total of 6,616 human trafficking cases as registered in India, out of which trafficking for the sex trade are highest in numbers (Munshi, 2020). Since these number of cases get registered as per the definition of trafficking in section 370 that conflates with sex work, the reliability of these number thus remains contested. It is because these numbers could include cases of adult sex workers who consented but their consent got denied during anti-trafficking interventions as both ITPA and section 370 allows it. But these figures and legislations do bring workers in sex trade into a situation of selective targeting from anti-trafficking actors and interventions (see GAATW, 2007; The Telegraph, 2017; Chandra, 2018).

    The amendment in section 370 made modest but insufficient changes to the definition of trafficking as a response to the recommendation of Verma Committee (Khan, 2015). These changes were also precipitated by India’s commitment to the international actors, after India ratified United Nations’ Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (UN Protocol) in 2011 (UNODC, 2004). Once again, akin to colonial policies, despite resulting in some improvements in India’s human trafficking or workers’ harsh labour conditions, these changes produced more harm than help. For instance, documented narratives (Sangram, 2018), experiences (Walters, 2018) of the targeted groups, and research (GAATW, 2007; Pai, Seshu and Murthy, 2018; Sangram, 2018; Walters and Ramachandran, 2018) even now showed (re)production of violence and harms in targeted person’s lives because of these contemporary anti-trafficking interventions, of which AHTUs mainly acts central implementing agency.

    The intention of settling AHTUs appears to maintain a law enforcement anti-crime structure, as the definitions in ITPA and Section 370 understand trafficking through a criminalisation approach. However, practically, narratives of targeted persons at the local level indicates that this intervention does not promote the goal of human rights and protection of targeted persons.

    Narratives from my current ethnographic research that gives epistemic priority to those adult migrant workers who experienced anti-trafficking interventions or are seen as trafficked ‘victims’ in the law (see Najar, 2020, 2021), in construction and sex sector of India, shows that the officials of anti-trafficking units were viewed by such workers as being corrupt and partial to the interests of the perpetrators. For instance, sitting inside her brothel room, Priya (name changed), a migrant cis female adult sexworker, said that “[…] Police is culprit here”. She shared an incidence of previous day that two policemen were harassing a customer and then the customer gave 1000 Indian Rupees to these Policemen. The police then allowed these customers to enter the brothel. She said the Police is a party in the business in that red light area. She also shared that usually work should be upto midnight or 1:00 am. But since the Police take rounds till midnight, there are very few customers who come before that midnight, due to the fear of harrashment from Police. Priya said that here the system is reverse as the market opens after 12, once the police gather their money and leave the place (D4:FW3).  This narrative reflects how a system that gives more power and authority to institutions like police could be appropriated and misused, resulting more harm to the livelihood and rights of workers like Priya, rather ensuring and protecting their  human rights.

    Furthermore, state officials were viewed as holding unchecked authority over the targeted person’s decision, choices and trajectory. For example, Reshma, a non-brothel based adult migrant sex worker in Kolkata, who introduced herself as ‘flying sex worker’ while sharing her experiences in my research said that “[…] who knows when they (Police) will start harassing you. Sometime, they stop their vehicle in front of me, ask if I carry Ganja (Marijuana), daaru (alcohol) and talk with me a little and go ahead. But all power is in their hand. If they want, they can take me to the jail by saying that I am 15 years old or I am Bangladeshi (undocumented migrant). No one will come to help me then. They (Police) have the powers. So it’s better to not mess up with them and pay or do the work that they want”. (DW 12: FW11). This narrative indicates the fear and consequences among marginalized migrant workers, because of extra and unaccountable institutionalized authority to agents like police and conflation of policies with consenting adult sex work in India.

    Total dependence on AHTUs hence has potential to reproduce situation of harms, resulting in diminished relief to the targeted person (see Sangram, 2018; Walters, 2018; Sen, 2021). Also, authority to and dependence on AHTUs may encourage further corruption, surveillance and control by police, reproducing problematic raid-rescue models and targeting of suspected migrants, especially sex workers, undocumented/informal workers, etc ( for example, see Sen, 2021 that highlights a very recent incident and explains how Police Raid to Rescue interventions Criminalised an Entire Neighbourhood). This situation is possible because the law conflates trafficking with sex work and forced migration, and has disproportionate focus on law enforcement strategies.

    The disproportionate focus on law enforcement strategies prevents more structural efforts to grapple with these intersecting issues in a way that recognises the agency of targeted persons. The United Nations special rapporteur on trafficking in persons amplified in her report for a shift in focus away from law enforcement and towards human rights and the protection of victims (Okyere, 2020). United Nations special rapporteur on trafficking in persons in her report also pointed that a new international instrument may be required, because the current international instruments like Palermo protocol may not be sufficient or effective when it comes to considering such human rights goals. Analysing the Special Rapporteur’s argument, Sam Okyere argues “the Palermo protocol is irredeemably compromised and must be dismantled, rather than reformed. We instead need to strengthen existing international instruments focusing upon workers’ and migrants’ rights and protections. Any new instrument which is developed needs to avoid the trap of making crime fighting a primary goal” (Okyere, 2020). It thus reflects that current demand to tackle human trafficking and protect migrant’s rights signifies a shift from law enforcement focused intervention to human rights and protection of worker’s rights.

    Given the colonial legacy and the continuing concerns arising from successive attempts at law reform, it appears that the current intervention to tackle human trafficking in India by only establishing AHTUs is not enough. India’s strategy to tackle human trafficking and migrant workers’ crisis should not completely and only depends on law enforcement institutions like AHTUs, instead, it also requires a rights based reform that dismantles the colonial legacy of the law which conflates human trafficking and sex work and migration. If Modi government in India fails to reform the policies, and simply promotes an intervention by only setting up law enforcement structures like AHTUs, it would mere be a token response to tackle trafficking and protect migrant worker’s rights, rather than a genuine effort.   

     

    References

    Banerjee, S. (2000) Under the Raj: Prostitution in Colonial Bengal. New York: Monthly Review Press.

    Bhattacherya, U. (2018) Why Is the Anti-Trafficking Bill Bothering India’s Sex Workers?, The Quint. Available at: https://www.thequint.com/voices/women/anti-trafficking-bill-india-2018-sex-workers-problems (Accessed: 12 September 2020).

    Chandra, J. (2018) Activists oppose draft anti-trafficking Bill – The Hindu, The Hindu. Available at: https://www.thehindu.com/news/national/activists-oppose-draft-anti-trafficking-bill/article24445893.ece (Accessed: 18 January 2019).

    Chang, S. (2007) A Colonial Haunting : Prostitution and the Politics of Sex Trafficking in by British India, 1917-1939.

    Cunha, J. D. (1987) ‘Prostitution in a Patriarchal Society-A Critical Review of the SIT Act’, Economic and Political Weekly, 22(45), pp. 7–8. Available at: https://www.epw.in/journal/1987/45/special-articles/prostitution-patriarchal-society-critical-review-sit-act.html (Accessed: 16 October 2018).

    Divya, A. (2020) Sex workers in India on the verge of debt bondage and slavery, says a study | Lifestyle News,The Indian Express, The Indian Express. Available at: https://indianexpress.com/article/lifestyle/life-style/sex-workers-in-india-on-the-verge-of-debt-bondage-and-slavery-says-a-study-7117938/ (Accessed: 10 January 2021).

    Francis, A. and Uniyal, M. (2021) Migrant workers have returned to India’s cities – but they are even more vulnerable now, Scroll.in. Available at: https://scroll.in/article/981358/migrant-workers-have-returned-to-indias-cities-but-they-are-even-more-vulnerable-now (Accessed: 27 January 2021).

    GAATW (2007) ‘Collateral Damage. The Impact of Anti-Trafficking Measures on Human Rights Around the World’. Bangkok: Global Alliance Against Traffic in Women, p. 277. doi: 10.1017/CBO9781107415324.004.

    Giammarinaro, M. G. and Boola, U. (2018) India must bring its new anti-trafficking Bill in line with human rights law, urge UN experts, OHCHR. Available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23392&LangID=E (Accessed: 18 January 2019).

    Govt. of India (2013) The Criminal Law (Amendment) Act, 2013. New Delhi: PRS India. Available at: http://www.prsindia.org/uploads/media/Criminal Law, 2013/Criminal Law Amendment Bill as passed by LS.pdf (Accessed: 18 January 2019).

    Irwin, M. A. (1996) ‘White Slavery’ As Metaphor Anatomy of a Moral Panic, Ex Post Facto: The History Journal. Available at: https://walnet.org/csis/papers/irwin-wslavery.html (Accessed: 19 August 2018).

    Janwalkar, M. (2020) UN expert mentions Indian migrant crisis in report | India News,The Indian Express, Indian Express. Available at: https://indianexpress.com/article/india/un-expert-mentions-indian-migrant-crisis-in-report-6601819/ (Accessed: 27 January 2021).

    Janyala, S. (2021) Activists seek anti-human trafficking units in Andhra | Cities News,The Indian Express, Indian Express. Available at: https://indianexpress.com/article/cities/hyderabad/activists-demand-anti-human-trafficking-units-in-andhra-pradesh-7139519/https://indianexpress.com/article/cities/hyderabad/activists-demand-anti-human-trafficking-units-in-andhra-pradesh-7139519/ (Accessed: 27 January 2021).

    Khan, S. A. (2015) ‘Human Trafficking, Justice Verma Committee Report and Legal Reform: A Unaccomplish Agenda’, Ssrn, 9(1). doi: 10.2139/ssrn.2614393.

    Legg, S. (2014) Prostitution and the ends of empire : scale, governmentalities, and interwar India. Durham: Duke University Press.

    Munshi, S. (2020) Human Trafficking Hit Three-year High in 2019 as Maha Tops List of Cases Followed by Delhi, Shows NCRB Data, News18 Networks. Available at: https://www.news18.com/news/india/human-trafficking-hit-three-year-high-in-2019-as-maha-tops-list-of-cases-followed-by-delhi-shows-ncrb-data-2944085.html (Accessed: 10 January 2021).

    Najar, J. L. (2020) Anti-Trafficking Bill: What Meenakshi Lekhi’s Suggestions Got Wrong, The Wire. Available at: https://thewire.in/rights/anti-trafficking-bill-meenakshi-lekhi (Accessed: 12 September 2020).

    Najar, J. L. (2021) (Jaffer) JL Najar | Erasmus University Rotterdam. Available at: https://www.eur.nl/en/people/j-l-najar (Accessed: 27 January 2021).

    News18 Networks (2020) ‘Covid-19 Pandemic Has Created a Second Crisis in India — the Rise of Child Trafficking’. Available at: https://www.news18.com/news/india/covid-19-pandemic-has-created-a-second-crisis-in-india-the-rise-of-child-trafficking-3004136.html (Accessed: 27 January 2021).

    Okyere, S. (2020) The master’s tools will never dismantle the master’s house: time to rethink the Palermo protocol | openDemocracy, Open Democracy. Available at: https://www.opendemocracy.net/en/beyond-trafficking-and-slavery/the-masters-tools-will-never-dismantle-the-masters-house-time-to-rethink-the-palermo-protocol/ (Accessed: 27 January 2021).

    Pai, A., Seshu, M. and Murthy, L. (2018) ‘In Its Haste to Rescue Sex Workers, “Anti-Trafficking” Is Increasing Their Vulnerability’, Economic & Political Weekly, 53(28). Available at: https://www.epw.in/engage/article/raid-and-rescue-how-anti-trafficking-strategies-increase-sex-workers-vulnerability-to-exploitative-practices (Accessed: 12 September 2020).

    Rukmini, S. (2020) Why India’s ‘migrants’ walked back home, Mint. Available at: https://www.livemint.com/news/india/why-india-migrants-walked-back-home-11590564390171.html (Accessed: 27 January 2021).

    Sangram (2018) Raided: How Anti-Trafficking Strategies Increase Sex Workers’ Vulnerability to Exploitative Practices. Available at: http://sangram.org/resources/RAIDED-E-Book.pdf (Accessed: 9 February 2019).

    Sen, J. (2021) How a Nagpur Police Raid to ‘Rescue Underage Sex Workers’ Criminalised an Entire Neighbourhood, The Wire. Available at: https://m.thewire.in/article/rights/nagpur-sex-workers-police-raid/amp (Accessed: 20 January 2021).

    Sinha, S. (2020) COVID has blurred the lines between waged, coerced and trafficked labour in India | openDemocracy, Open Democracy. Available at: https://www.opendemocracy.net/en/beyond-trafficking-and-slavery/covid-has-blurred-lines-between-waged-coerced-and-trafficked-labour-india/ (Accessed: 27 January 2021).

    Sreenivas, M. (2011) ‘Creating Conjugal Subjects : Devadasis and the Politics of Marriage in Colonial Madras Presidency’, Feminist Studies, 37(1), pp. 63–92.

    Tambe, A. (2009) Codes of Misconduct Regulating Prostitution in Late Colonial Bombay, Society. london: University of Minnesota.

    Tandon, T. (2015) ‘India’s Trafficking Bill 2018 is Neither Clear Nor Comprehensive’, Economic and Political Weekly, 50(23), pp. 7–8. Available at: https://www.epw.in/engage/article/trafficking-of-persons-prevention-protection-and-rehabilitation-bill-2018-is-neither-clear-nor-comprehensive (Accessed: 18 January 2019).

    The Telegraph (2017) Sex workers oppose anti-trafficking bill, The Telegraph. Available at: https://www.telegraphindia.com/india/sex-workers-oppose-anti-trafficking-bill/cid/1518222 (Accessed: 29 May 2019).

    UNODC (2004) UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND THE PROTOCOLS THERETO UNITED NATIONS. Available at: www.unodc.org (Accessed: 2 September 2018).

    Walters, K. (2018) Scandals in sex worker rescue shelters: is ‘awful’ distracting from ‘lawful’? | openDemocracy, openDemocracy. Available at: https://www.opendemocracy.net/beyondslavery/kimberly-walters/scandals-in-indias-raid-and-rescue-shelters-is-awful-distracting-from (Accessed: 17 January 2019).

    Walters, K. and Ramachandran, V. (2018) A recipe for injustice: India’s new trafficking bill expands a troubled rescue, rehabilitation, and repatriation framework, Open Democracy. Available at: https://www.opendemocracy.net/beyondslavery/kimberly-walters-vibhuti-ramachandran/recipe-for-injustice-india-s-new-trafficking-bil (Accessed: 18 February 2019).

    This post was originally published on LSE Human Rights.

  • HSBC urged to unfreeze accounts of Hong Kong activist

    International politicians say the bank, already under fire for backing China’s security law, could ‘gravely tarnish’ its reputation

    An international group of senior politicians have written to the chairman of HSBC, Mark Tucker, urging him unfreeze bank accounts linked to a high-profile pro-democracy activist from Hong Kong.

    More than 50 members of the Inter-Parliamentary Alliance on China – including representatives from the UK, Canada, Australia, France, Germany and Switzerland – are calling for the immediate release of funds belonging to Ted Hui and his family, and a formal explanation of HSBC’s decision to freeze their accounts.

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • Asylum seekers deserve far better | Letters

    Thousands of refugees in the UK live in rundown conditions with the bare minimum of provisions, writes Enver Solomon of the Refugee Council

    If you or your family had to uproot yourselves to flee war, persecution and torture, and you managed to make it to a safe country, only to be put in a former army barracks or rundown hotel room with little access to support beyond the bare minimum of provisions, how would you feel (‘We felt like we were animals’: asylum seekers describe life in UK barracks, 2 February)? Distressed? Terrified? Anxious? Traumatised? Probably all of those things.

    That’s the reality for thousands of people in the UK. They are forced to live in limbo due to delays in their asylum claims, while living in accommodation where they struggle to access basics such as clothing, healthcare and education. Our government presents people seeking asylum as a threat, rather than humans with great potential to offer our communities. We must do better. Global Britain should be a beacon of compassion and humanity. There are Conservative MPs who believe this (Former immigration minister criticises use of barracks to house asylum seekers, 2 Feb). The prime minister should speak out and move quickly to house people seeking asylum in decent living conditions.
    Enver Solomon
    Chief executive, Refugee Council

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • New claims of migrant abuse as Ice defies Biden to continue deportations

    Ice condemned as ‘rogue agency’ after rights groups allege torture by agents and man deported to Haiti who had never been there

    US Immigration and Customs Enforcement (Ice) has been denounced as a “rogue agency” after new allegations of assaults on asylum seekers emerged, and deportations of African and Caribbean migrants continued in defiance of the Biden administration’s orders.

    Joe Biden unveiled his immigration agenda on Tuesday, and his homeland security secretary Alejandro Mayorkas was confirmed by the Senate, but the continued deportations suggested the Biden White House still does not have full control of Ice, which faces multiple allegations of human rights abuses and allegations that it has disproportionately targeted black migrants.

    Related: Trump administration to deport man to Haiti who has never been there

    This is unacceptable. Ice must halt these flights at once

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • Lords defeats government over UK courts’ role in genocide rulings

    Peers vote for second time to amend trade bill and take a tougher stance on China’s human rights record

    Peers have inflicted a crushing defeat on the government over its approach to China’s human rights record by voting for a second time to amend a trade bill and give British courts a role in determining whether a country is committing genocide.

    Any such judicial determination would require the UK to review any bilateral trade agreement with Beijing, because of its abuses against Uighur Muslims in Xinjiang, and other regimes accused of genocide.

    Related: Ministers move to stop backbench revolt over UK courts’ role in genocide rulings

    Related: UK free to make trade deals with genocidal regimes after Commons vote

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • Worker at H&M supply factory was killed after months of harassment, claims family

    Fashion brand to investigate the death of 20-year-old Jeyasre Kathiravel, reportedly killed by supervisor at Natchi Apparels

    The family of a young garment worker at an H&M supplier factory in Tamil Nadu who was allegedly murdered by her supervisor said she had suffered months of sexual harassment and intimidation on the factory floor in the months before her death, but felt powerless to prevent the abuse from continuing.

    H&M said it is launching an independent investigation into the killing of Jeyasre Kathiravel, a 20-year-old Dalit garment worker at an H&M supplier Natchi Apparels in Kaithian Kottai, Tamil Nadu, who was found dead on 5 January in farmland near her home.

    Related: Racism is at the heart of fast fashion – it’s time for change | Kalkidan Legesse

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • Why Australia Should Drop Charges Against David McBride for Whistleblowing Afghan War Crimes

    Between 2014 and 2016, former Australian Defence Force lawyer, David McBride leaked material alleging war crimes by members of the Australia’s Special Operations Task Group in Afghanistan to two journalists at the Australian Broadcasting Corporation (ABC), Dan Oakes and Sam Clark. McBride’s lawyer maintains he did this after reporting his concerns through the chain of command. In 2017, Oakes and Clark reported in the Afghan Files multiple incidents of special forces troops killing unarmed civilians including children and raised wider concerns around the “warrior culture” of Australia’s special forces.

    David McBride was charged with multiple counts of unlawfully communicating military information contrary to s73A(1) of the Defence Act 1903, theft of Commonwealth property and unlawfully disclosing a Commonwealth document contrary to s70(1) of the Crimes Act 1914.

    In May 2019, McBride pleaded not guilty to each charge on the grounds that his disclosures were in the public interest. He is presently awaiting trial.

    In November 2020, the Australian Chief of Defence Force released the findings of the Inspector General of the Australian Defence Force Afghanistan Inquiry Report by Major General Paul Brereton, a judge of the Supreme Court of New South Wales (the Brereton Report). The Brereton Report found evidence for 23 incidents committed by 19 individuals resulting in the deaths of 39 civilians and the cruel treatment of 2 others.

    The Australian Government has since established a new Office of the Special Investigator to investigate criminal charges arising from the Brereton Report and an Oversight Panel to investigate broader cultural and organisational issues.

    Discontinuing prosecution of McBride, while expediting the continuing efforts to investigate prosecution of potential perpetrators of war crimes, would send a signal to the world that Australia takes these allegations seriously, respects the laws of war and is committed to making reform to prevent future misconduct.

     

    Dropping Prosecution of the ABC Journalist

    On 5 June 2019, the Australian Federal Police executed an extensive search warrant on the ABC’s premises lasting eight hours investigating potential criminal conduct by the ABC reporters. By October 2020, the Australian Federal Police indicated that they would not press  charges on the ABC Journalist Dan Oakes, after the Commonwealth Director of Prosecutions indicated prosecution would not be in the public interest given the role of journalism in Australian democracy.

     

    Article One of the Geneva Convention and Cultural Change

    As a state party to the Rome Statute establishing the International Criminal Court, Australia is bound by the norms of International Humanitarian Law and has a duty to investigate potential breaches.

    Eve Massingham argues that under the first article of the Geneva Convention Australia has an obligation beyond wartime to ensure compliance with the laws of war, which includes, a duty to take preventative measures. Massingham emphasises that prosecutions of criminal wrongdoers cannot be the end of the story, training on laws of war must be increased, and command structures must instil a culture of transparency and accountability with a central focus on compliance with the law of war. Massingham concludes that:

    “It will not be possible for Australia to ensure respect for the law of war if investigations are hampered by a culture of secrecy and knowing that coming forward will be detrimental. Military personnel at all levels must have it ingrained in them that speaking up is not career ending (Massingham, 2020).”

    Brereton reasoned that cultural change should be driven by members of the Defence Force who cooperated with the inquiry and assisted in the exposure of wrongdoing being protected from retaliation and adverse consequences:

    “Perhaps the single most effective indication that there is a commitment to cultural reform is the demonstration that those who have been instrumental in the exposure of misconduct, or are known to have acted with propriety and probity, are regarded as role models. It is crucial that their careers be seen to prosper. There are others whose conduct is such that they cannot be rewarded by promotion, but who, having made disclosures to the Inquiry in protected circumstances when they reasonably believed they would not be used against them, and whose evidence was ultimately of considerable assistance to the Inquiry, ought not fairly be the subject of adverse administrative action (Brereton, 326)”

    The Brereton Report accordingly recommended that soldiers who played minor roles in alleged war crimes but provided useful information should be given immunity from prosecution.

    Clearly, McBride does not fall within the first category of internal role models who waited for the Inspector General’s inquiry to provide an honest account of these incidents. McBride took matters into his own hands and disobeyed military rules, National Security laws and other Commonwealth laws in order to call attention to wrongdoing and spark reform. But, in light of the seriousness of the allegations, and the likelihood that the prevailing culture would have prevented action on internal review, there is a compelling public interest in McBride’s revelations. McBride’s lawyer, Nick Xenophon persuasively argues in an open letter to the Australian Defence Force Chief:

    “It was whistleblowers like McBride and a handful of others who made the Brereton report possible by refusing to be intimidated into silence. In my view, they have redeemed the reputation of our nation. They do not deserve jail cells.”

     

    Whistleblowing, Reporting and National Security

    The McBride case sparks wider concerns around both inadequate protections for whistle-blowers, particularly in the context of national security information, and journalists reporting on such information.

    Prosecuting whistle-blowers and journalists based on the wide scope of National Security legislation has a chilling effect on discussion of corruption and wrongdoing. As a result of diminished advertising streams of revenue and time-poor and understaffed newsrooms, news organisations are likely to avoid reporting on sensitive National Security information if there is a real risk of prosecution. In addition, the wide scope of these offences criminalises the actions of journalists who are found to be in possession of National Security information, even if they decide not to publish.

    In the case of ABC journalist Dan Oakes, Australian Federal Police executed extensive search warrants over the course of eight hours for the search of ABC premises as part of the criminal investigation. This seems to be intended to intimidate future whistle-blowers by showing the confidentiality of a journalist’s source will be easily divulged in the course of the extensive kind of investigation permitted under these laws.

    The submission of the Australian Human Rights Law Centre to the Senate Environment and Communications References Committee Inquiry on Press Freedom in 2019 identifies five key areas for reform in Australia:

    1. Strengthening whistleblower protections under the Public Interest Disclosure Act 2013 (Cth) and creating pathways for disclosing intelligence information;
    2. Decriminalising journalism and whistleblowing;
    3. Improving warrant processes for journalists and whistleblowers;
    4. Reining in surveillance over all Australians;
    5. Improving the culture within Government through a Charter of Human Rights (Howie et all, 2019, p. 3).

    In “A Best Practice Guide for Whistleblowing Legislation,” Transparency International persuasively argue that concerns around disclosure of national security information should be managed by robust procedures that allow for internal disclosure to autonomous oversight agencies and safeguards for the disclosure of national security information externally in exceptional circumstances:

    External disclosure (i.e. to the media, civil society organisations) would be justified in demonstrable cases of urgent or grave threats to public health, safety or the environment; if an internal disclosure could lead to personal harm or the destruction of evidence; and if the disclosure was not intended or likely to significantly harm national security or individuals (Terracol 2018, p. 42)

    In conclusion, the prosecution of McBride should be dropped because it would promote cultural change and compliance with Australia’s obligations under international law. The Brereton Report findings show that protecting whistle-blowers and personnel who assisted the inquiry from retaliation and criminal prosecution is integral to instilling a culture of accountability. McBride’s courageous disclosures, against a culture of silence, of misconduct and alleged war crimes sparked media discussion and formal investigations that led to the Brereton Report. Given the substantial degree to which McBride’s disclosures have subsequently been substantiated by the Brereton Report, McBride’s actions should be viewed as an attempt to spark reform in a difficult situation. We should recognise that McBride did not have an internal alternative at the time of his disclosures because of the prevailing culture of silence. Dropping McBride’s prosecution, while also introducing new processes for internal whistleblowing to an independent Australian Defence Force watchdog, is required to instil a new culture of transparency and accountability.

     

    References

    Gaynor, J. 2020 “Inspector General of The Australian Defence Force Afghanistan Inquiry Report” Available at IGADF-Afghanistan-Inquiry-Public-Release-Version.pdf (defence.gov.au)

    Howie, E; Drury, A; Lane, A. (2019) “Safeguarding our democracy: Submission to the Senate Environment and Communications References Committee inquiry on press freedom,” Human Rights Law Centre, 27 August. Available at Submissions – Parliament of Australia (aph.gov.au)

    Massingham, E. (2020), “Australian Special Forces War Crimes Prosecutions: Crucial but Just One Aspect When It Comes to Respect for the Laws of War,” OpinioJuris, 20 November. Available at Australian Special Forces War Crimes Prosecutions: Crucial but Just One Aspect When It Comes to Respect for the Laws of War – Opinio Juris

    Oakes, D & Clark S. 2017 “The Afghan Files” ABC News, 11 July. Available at The Afghan Files: Defence leak exposes deadly secrets of Australia’s special forces – ABC News (Australian Broadcasting Corporation)

    Terracol, M. (2018) “A Best Practice Guide for Whistleblowing Legislation” Transparency International, Available at pdf (transparencycdn.org)

    Xenephon, N. 2020 “If moral courage matters, this whistleblower needs defending,” The Age, 18 November. Available at SAS war crimes inquiry: David McBride needs defending, General Angus Campbell (theage.com.au)

    This post was originally published on LSE Human Rights.

  • Ministers move to stop backbench revolt over UK courts’ role in genocide rulings

    Government offers alternative to amendment that could force UK to reconsider trade deals with countries such as China

    The government is seeking to fend off a backbench revolt over China by giving the foreign affairs select committee new powers to investigate whether a country is so clearly breaching human rights that the UK should not agree to a free trade deal with it.

    The proposal is being canvassed as an alternative to a measure which would give the high court the power to make a preliminary determination that a country with which the UK is negotiating a trade deal is committing genocide. Such a determination would require the government to consider pulling out of any free trade agreement.

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • Family wins lawsuit against NHS trust over woman’s decomposed body

    Emily Whelan was feared to have been killed but investigation was hampered by state of corpse

    The family of a woman whom they suspect was killed has won a lawsuit against a health trust that allowed her body to decompose to the point that experts were unable to rule out third-party involvement in the death in a first-of-its kind ruling.

    In a judgment handed down on Friday, Judge Andrew Saffman concluded that Leeds Teaching Hospitals NHS trust had breached human rights laws by failing to preserve Emily Whelan’s body, and awarded the family damages.

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • UN court rejects UK claim to Chagos Islands in favour of Mauritius

    UK urged to end ‘unlawful occupation’ of major strategic asset in Indian Ocean

    The UK has been urged to end its “unlawful occupation” of the Chagos Islands by the prime minister of Mauritius, after Britain’s claim to sovereignty over the strategically important islands in the Indian Ocean was comprehensively rejected by the United Nation’s special international maritime court in Hamburg.

    The court ruling provides a major headache as the islands represent the UK’s main strategic asset in the Indian Ocean, but a refusal to comply with the judgment will damage Britain’s international reputation for compliance with the law.

    Related: ‘What about justice?’: Chagos Islanders pin their hopes on Biden

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • Bryan Kramer: How many PNG police chiefs have had a degree? None

    COMMENT: By Bryan Kramer, PNG’s Minister of Police who has defended Commissioner Manning’s appointment today in The National

    My last article, announcing that I intend to make a submission to the National Executive Council (NEC) to amend the Public Service regulation to no longer require the Commissioner of Police to hold a tertiary degree, prompted a number of readers to suggest this would be an act nepotism, corruption and self-interest.

    While I found these claims rather amusing, they are also disturbing as it shows some people are either genuinely ignorant of the issues, or just plain stupid.

    What is the regulation that stipulates a person must obtain a tertiary degree to qualify for the appointment of Departmental Head (Secretary of Department)?

    In 2003, the NEC approved a regulation called the Public Service (Management) Minimum Person Specification and Competence & Regulations for Selection and Appointment of Departmental Heads and Provincial Administrators.

    This regulation provided that any person applying for a position of Departmental Head or Provincial Administrator must meet a number of minimum requirements to be considered for the appointment. These requirements number more than 18 and include everything from minimim tertiary education, over age of 35, management experience and skills to health and fitness.

    So there is no confusion, this regulation was proposed by the Department of Personnel Management as the agency responsible for Public Service through the Minister of Public Service for NEC’s approval.

    While Acts of Parliament (laws) are subject to approval by Parliament, regulations are approved by NEC.

    Regulations like bylaws
    Regulations are like bylaws to an Act of Parliament and are intended to provide more detailed processes and procedures when implementing provisions or sections of an Act (law).

    When NEC introduced the regulation specifying the minimum requirements for persons to be appointed to be Departmental Head and Provincial Administrators, did it intend the regulation to apply to the Commissioner of Police?

    The National 250120
    Yesterday’s The National front page reporting on the reformist police chief’s post being “in limbo”. Image: APR screenshot of The National

    Short answer, in my respectful view, is No.

    My evidence to support this view is that NEC appoints the Commissioner of Police and, if it intended the Commissioner of Police to be subject to the regulation, then it would have applied it to every Commissioner of Police appointed since 2003.

    The same can be said about the Department of Personnel Management which proposed the regulation in the first place and would have otherwise applied it in the shortlisting of candidates for the position.

    Since the introduction of the regulation, how many Commissioners of Police have had a tertiary qualification?

    Short answer is none.

    PNG police chiefs
    Papua New Guinea’s police commissioners since 1976. Graphic: The National

    Six post-regulation appointments
    Since the introduction of the regulation by NEC there have been six appointments to Commissioner of Police. Not one has possessed a tertiary degree.

    In fact, since 1945 more than 23 people have served as Commissioner of Police and only one of them possessed a tertiary education – Peter Aigolo, 1997-1999.

    It is the role of Members of Parliament to pass legislation, NEC to pass regulation and the court to interpret and uphold law consistent with its intended meaning, purpose and Constitutional law.

    The Supreme Court has held in numerous of its judgements over the years that, when interpreting laws passed by Parliament, it is important to understand and consider the intent of the legislature when they introduced the law.

    In this case, the question is did the NEC intend the regulation to be applied to the appointment of Commissioner of Police?

    Based on the above evidence, my respectful view is No.

    I don’t believe this evidence or argument was raised before the National Court to assist the Court in arriving at its decision. Perhaps it was the case of those drafting the regulation failing to make it clear.

    The decision of the National Court is not final, as the Commissioner of Police may exercise his right to appeal the decision to the Supreme Court for a three-man bench to review the decision.

    NEC may also exercise its Constitutional powers to correct any confusion in the application of the regulation to make it consistent with its intended purpose.

    The decision to introduce regulation, rescind, amend or correct it, including in the appointment of the Commissioner of Police, lies with NEC.

    Republished from Police Minister Bryan Kramer’s personal blog. The original headline on this article was: “Where did minimum requirements for Chief of Police come from?” Asia Pacific Report often republishes Minister Kramer’s articles.

    This post was originally published on Radio Free.

  • Bryan Kramer: How many PNG police chiefs have had a degree? None

    COMMENT: By Bryan Kramer, PNG’s Minister of Police who has defended Commissioner Manning’s appointment today in The National

    My last article, announcing that I intend to make a submission to the National Executive Council (NEC) to amend the Public Service regulation to no longer require the Commissioner of Police to hold a tertiary degree, prompted a number of readers to suggest this would be an act nepotism, corruption and self-interest.

    While I found these claims rather amusing, they are also disturbing as it shows some people are either genuinely ignorant of the issues, or just plain stupid.

    What is the regulation that stipulates a person must obtain a tertiary degree to qualify for the appointment of Departmental Head (Secretary of Department)?

    In 2003, the NEC approved a regulation called the Public Service (Management) Minimum Person Specification and Competence & Regulations for Selection and Appointment of Departmental Heads and Provincial Administrators.

    This regulation provided that any person applying for a position of Departmental Head or Provincial Administrator must meet a number of minimum requirements to be considered for the appointment. These requirements number more than 18 and include everything from minimim tertiary education, over age of 35, management experience and skills to health and fitness.

    So there is no confusion, this regulation was proposed by the Department of Personnel Management as the agency responsible for Public Service through the Minister of Public Service for NEC’s approval.

    While Acts of Parliament (laws) are subject to approval by Parliament, regulations are approved by NEC.

    Regulations like bylaws
    Regulations are like bylaws to an Act of Parliament and are intended to provide more detailed processes and procedures when implementing provisions or sections of an Act (law).

    When NEC introduced the regulation specifying the minimum requirements for persons to be appointed to be Departmental Head and Provincial Administrators, did it intend the regulation to apply to the Commissioner of Police?

    The National 250120
    Yesterday’s The National front page reporting on the reformist police chief’s post being “in limbo”. Image: APR screenshot of The National

    Short answer, in my respectful view, is No.

    My evidence to support this view is that NEC appoints the Commissioner of Police and, if it intended the Commissioner of Police to be subject to the regulation, then it would have applied it to every Commissioner of Police appointed since 2003.

    The same can be said about the Department of Personnel Management which proposed the regulation in the first place and would have otherwise applied it in the shortlisting of candidates for the position.

    Since the introduction of the regulation, how many Commissioners of Police have had a tertiary qualification?

    Short answer is none.

    PNG police chiefs
    Papua New Guinea’s police commissioners since 1976. Graphic: The National

    Six post-regulation appointments
    Since the introduction of the regulation by NEC there have been six appointments to Commissioner of Police. Not one has possessed a tertiary degree.

    In fact, since 1945 more than 23 people have served as Commissioner of Police and only one of them possessed a tertiary education – Peter Aigolo, 1997-1999.

    It is the role of Members of Parliament to pass legislation, NEC to pass regulation and the court to interpret and uphold law consistent with its intended meaning, purpose and Constitutional law.

    The Supreme Court has held in numerous of its judgements over the years that, when interpreting laws passed by Parliament, it is important to understand and consider the intent of the legislature when they introduced the law.

    In this case, the question is did the NEC intend the regulation to be applied to the appointment of Commissioner of Police?

    Based on the above evidence, my respectful view is No.

    I don’t believe this evidence or argument was raised before the National Court to assist the Court in arriving at its decision. Perhaps it was the case of those drafting the regulation failing to make it clear.

    The decision of the National Court is not final, as the Commissioner of Police may exercise his right to appeal the decision to the Supreme Court for a three-man bench to review the decision.

    NEC may also exercise its Constitutional powers to correct any confusion in the application of the regulation to make it consistent with its intended purpose.

    The decision to introduce regulation, rescind, amend or correct it, including in the appointment of the Commissioner of Police, lies with NEC.

    Republished from Police Minister Bryan Kramer’s personal blog. The original headline on this article was: “Where did minimum requirements for Chief of Police come from?” Asia Pacific Report often republishes Minister Kramer’s articles.

    This post was originally published on Asia Pacific Report.

  • Grief, anger and a curfew as Pakistani activist Karima Baloch buried

    Family of women’s rights advocate, found dead in Canadian lake, call for police to reopen investigation

    It was the homecoming they never wanted. Five years ago, Karima Baloch fled Pakistan after her work as a prominent human rights activist put her life in danger. On Sunday morning, on the tarmac of Karachi airport, she was returned to her family at last.

    But though she lay lifeless in a wooden coffin, her body was confiscated by Pakistani security officials for hours. Then her home town in Balochistan was placed under the control of paramilitary forces, a curfew was imposed on the region and mobile services were suspended, all to prevent thousands turning out for her funeral on Monday. It was clear that, even in death, Pakistan viewed Baloch as a threat to national security.

    Related: Pakistan: where the daily slaughter of women barely makes the news | Mohammed Hanif

    Video: Relatives & close family friends were allowed to participate in the last funeral prayers of #KarimaBaloch. The huge participation of local women can also be seen in this video. People across the Balochistan were not allowed to farewell their leader.@Gulalai_Ismail pic.twitter.com/mTw6iP3rJG

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • UK asylum seekers told claims at risk if they ‘misbehave’

    Call for Home Office to act after private contractors tell people their applications will be jeopardised for speaking out, going on hunger strikes or complaining about food

    People held at temporary Home Office refugee camps are being threatened that their asylum claims will be harmed if they “misbehave”, according to testimony from site residents.

    A series of statements from asylum seekers inside the camps, anonymised to protect them from possible reprisals, allege they have been told by staff employed by private contractors that their asylum application will be jeopardised for speaking out about conditions or going on hunger strike.

    Related: Home Office wrong to stop asylum seekers working in UK, court rules

    Continue reading…

    This post was originally published on Human rights | The Guardian.

  • Jair Bolsonaro could face charges in The Hague over Amazon rainforest

    Indigenous leaders and human rights groups urge ICC to investigate Brazil’s president

    Jair Bolsonaro, Brazil’s president, could face charges in the International Criminal Court after being accused of crimes against humanity.

    Indigenous leaders in Brazil and human rights groups are urging the court to investigate Bolsonaro over his dismantling of environmental policies and violations of indigenous rights, which they say amount to ecocide.

    Related: Amazonian chief Raoni Metuktire: ‘Bolsonaro has been the worst for us’

    Continue reading…

    This post was originally published on Human rights | The Guardian.