Indian Parliament revokes the agency of transgender persons in determining their gender identity

by Aishwarya Singh

The Transgender Persons (Protection of Rights) Act, 2019 (the Act) came into effect on December 5, 2019 amidst much criticism and protests by the transgender community and activists in India.  The Act is a revised version of the Transgender Persons (Protection of Rights) Bill, 2018 (2018 Bill), which had lapsed in the Upper House of the Parliament.

One of the main provisions of the Act provides that the issuance of a certificate of identity as a transgender person is conditional upon the “procedure” prescribed by the executive, leaving transgender people vulnerable to invasive procedures, which can be introduced at the whim of the executive.   This fear is cemented by the fact that under Rule 4 of the draft rules, released by the Ministry of Social Justice and Empowerment, such a certificate will only be issued after a report of a government hospital psychologist is produced, and verified by a District Magistrate.

Furthermore, the Act requires transgender persons to undergo sex reassignment surgery, after which they would become eligible for receiving a certificate of identity as a member of the opposite sex to the one assigned at birth.  The process of legal recognition of gender identity under the Act takes away the right of self-determination of gender and makes the recognition conditional upon the bureaucratic scrutiny of the body of the trans subject, which I argue is enabled by the contradictions in the Indian Supreme Court’s judgement in the case of  NALSA v. Union of India (NALSA) on the right to self-determination of gender.

Under the Act, a transgender person has the “right to be recognised as such, in accordance with the provisions of this Act”. Since the recognition of the person as ‘transgender’ is subject to the provisions of the Act, the procedure of such recognition is of paramount importance.  The 2018 Bill contemplated the constitution of a District Screening Committee (DSC) which, inter alia, included a government officer, medical officer and a psychiatrist/psychologist.  The committee would consist of only one member from the transgender community.  Pursuant to the recommendation of the DSC, the District Magistrate would issue a certificate of identity as a transgender person.  The constitution of the DSC was one of the most criticized aspects of the 2018 Bill, since it would not only have forced transgender persons to consent to a psychological and medical examination, but would also have reinforced the notion that transgender identity is a subject of medical evaluation and not just another gender variation.

The Act does away with the constitution of a DSC.  However, Section 6 of the Act provides that the process of issuance of the above certificate of identity by the District Magistrate is subject to “such procedure and in such form and manner, within such time, as may be prescribed” by the executive.  This provides significant room to the executive to make rules in this regard that could equally violate a transgender person’s constitutional right to privacy and dignity recognised by the Supreme Court of India in the NALSA judgement (paragraph 66).  As noted above, the draft rules introduced by the Ministry of Social Justice and Empowerment provide that the right of self-determination as a transgender person is conditional upon psychological evaluation.

The draft rules were released on April 18, 2020 for the purpose of public consultation and the deadline for submitting the comments was May 18, 2020.  The release of the draft rules during the lockdown imposed due to the Covid-19 pandemic has made mobilisation against the provisions of the rules difficult.  Further, Section 7 of the Act makes the legal recognition of a person, as a member of the opposite sex to the one assigned at birth, conditional upon “surgery to change their gender“.

The above provisions are at odds with the right to self-perceived gender identity provided under Section 4 of the Act.  However, the contradictions between the bureaucratic screening and imposition of gender identity, and gender self-determination under the Act, is in continuation of the oscillatory approach towards the recognition of gender identity adopted by the NALSA judgement.  Although the judgement was celebrated for its recognition of  transgender identity and affirming the constitutional rights of the transgender persons, its interpretation and implementation by the lower judiciary, has been inconsistent, wherein the courts have used sex reassignment surgeries (SRS) or psychological evaluation as the basis of recognition of gender identity.

Under the operative part of the judgement, written by Justice K.S. Radhakrishnan and Justice A.K. Sikri, a transgender person’s right to decide their self-identified gender has been upheld and the Centre and State Governments have been directed to grant legal recognition of their gender identity, such as male, female or third gender (paragraph 129), without any mention of medical procedures as a requirement for legal recognition of the that identity.   However, the ‘grant of legal recognition’ by the government has opened the door for policing of gender identity by bureaucratic committees.

Furthermore, Justice Radhakrishnan, while advocating for self-identification of gender, suggests a psychological test to determine sex and gender (paragraph 75).   Justice Sikri’s opinion is even more restrictive and uses biological essentialism for the granting of constitutional rights.  He opines that “a person has a constitutional right to recognition as male or female after SRS, which was not only his/her gender characteristic but has become his/her physical form as well” (paragraph 106).  The observations of the judges, hence, are open to interpretation enabling the Indian Parliament to pass an Act which is antithetical to the idea of self-determination of gender.  Simply put, the process for recognition before the law and control over one’s own body should be separate from any medical interventions.  But if in case, an individual’s personal identity or transition process requires medical support, those services should be made available and be accessible.

In addition, the process of legal recognition of gender identity, conditional upon bureaucratic screening and medical procedures, violates the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (Yogyakarta Principles), which although not legally binding, are considered as the international standard in combating gender identity based discrimination.  Upholding Yogyakarta Principles as a part of Indian law by the Indian Supreme Court in the NALSA judgement and Navtej Singh Johar v. Union of India should be seen as a watershed moment for Indian Transgender Activism and the government must try to bring this Act in line with it to do justice to this community.  Meanwhile, the Act has been challenged in the Supreme Court but, it is hoped that the principles such as self-determination of gender are adhered to in letter as well as spirit and are not violated under the name of  psychological tests (which are typically based on binary frameworks e.g. “being trapped in the wrong body”) or a biological test, both of which are exclusionary and not inclusive of the varied ways in which gender is experienced.

 

ABOUT THE AUTHOR

Aishwarya Singh is qualified to practice law in India. She is interested in constitutional law, anti-discrimination law and international human rights law.

HRC’s Members Response Action to COVID-19

By Katya Alkhateeb

updated 29 June

Updated monthly, in this issue you will find most of the HRC’s members COVID-19 work across different department in the University of Essex, including various types of

• Initiatives
• Blogs
• Webinars
• Podcasts

Initiatives:

• Antonio Coco (School of Law) was involved in the drafting of the following initiative: the Oxford Statement on the International Law Protections Against Cyber Operations Targeting the Health Care Sector, a collective plea by international lawyers for the respect of international law amid the current pandemic. The statement was drafted during a 2-day virtual workshop. Dr Coco took part in the workshop and contributed to the drafting effort.The statement, which was signed by 31 original signatories including Dr Coco and which has since been signed by many other experts, was submitted for consideration to the UN Security Council. A number of countries have already manifested their intention to mention it during their statements, and some have already done so during the ongoing meeting.The statement will remain open for signature for a while. In case you are interested in joining the 80+ international lawyers who signed so far, you can do it by sending a message to oxfordcyberstatement@gmail.comA submission to the Joint Committee on Human Rights, which was referred to in their resultant report, by Professor Lorna McGregor, Professor Pete Fussey, Dr. Daragh Murray, Dr. Chris Fox, Dr. Ayman Alhelbawy, Professor Klaus McDonald-Maier, Dr. Ahmed Shaheed and Professor Geoff Gilbert is available to read on the UK parliament website. This was an inter-disciplinary contribution, with the HRC members involved based in the Schools of School of Computer Science and Electronic Engineering, Law and Sociology.

• Neli Demireva and Dr. Afia Afenah (Department of Sociology) have started a new project on discrimination against inter-ethnic couples during Covid-19. It will address how the current pandemic might influence the social fabric of our modern-day societies, and what impact it might have on relations between different ethnic groups.

• Tara Van Ho and Dr. Anil Yilmaz Vastardis, (School of Law), secured GCRF@Essex funding jointly with University of Rosario for a project looking into the experiences of the workers in the informal economy in Colombia during the pandemic with a view to provide input to the work of the Mayor of Bogota and the public health authorities of the national government on this issue. The official title for the project is: “Precarious Work and Access to Healthcare and Social Security in Colombia: Targeted Measures During the Covid-19 Global Emergency”. This is part of a larger collaboration we have with University of Kent (for more information, see here).

• The Essex Autonomy Project has been working closely with its sister project the Ethics of Powerlessness Project (EoP) to provide research support to NHS Ethics Committees and policy makers who face situations where demand for emergency medical care threatens to swamp the available supply.  The EAP and EoP teams produced a report Triage in the COVID-19 Pandemic: Bioethical and Human Rights Considerations; surveying bioethical and human rights considerations in situations of triage.

• HRC member Carla Ferstman and HRC Director Dr. Andrew Fagan (School of Law) are co-editing an online publication which examines a wide range of human rights and legal issues raised by COVID19. The project was initiated by Carla and draws upon expertise across the school and HRC. We aim to publish this important contribution in early July.

• As the global human rights community responds to the COVID-19 pandemic, the HRC and Essex Human Rights, Big Data and Technology project have partnered with the Permanent Mission of Denmark, the Permanent Mission of Netherlands and the Permanent Mission of Norway to the UN in Geneva, Universal Rights Group, Geneva Academy, Geneva Rights Platform, World Jewish Congress, The United Nations Population Fund (UNFPA), Ferney-Voltaire and Geneva Internet Platform to provide a new Webinar/Webchat discussion forum entitled RightOn. RightOn provides a regular series of publicly accessible webinars which explore an exciting range of topical human rights issues, including many of those raised by COVID-19. HRC Director, Dr Andrew Fagan contributed to the very first RightOn webinar of RIGHT ON: FIGHTING ONLINE HATE SPEECH AND FAKE NEWS IN A GLOBAL CRISIS. HRC Member, Professor Geoff Gilbert contributed to HOW TO PREVENT COVID-19 BECOMING A HUMANITARIAN DISASTER IN THE CONTEXT OF CONFLICT SITUATIONS, REFUGEE AND IDP POPULATIONS?

Blogs:

• The HRC Blog has been closely following and reporting on the COVID-19, you can find Human Rights News items and blogs in our Weekly Roundups.
• 19^th March 2020, Koldo Casla (School of Law) published Coronavirus: beyond human rights.
• 23^rd March 2020, Judith Bueno de Mesquita (School of Law) published Covid-19: Key human rights questions for the UK.
• 24^th March 2020, Tara Van Ho and Dr. Anil Yilmaz Vastardis (School of Law) co-authored with others a piece International Economic Law and Covid-19 focusing on the structural injustices inflicted by the international economic order which exacerbated during the pandemic.
• 29 March 2020, Caroline Bald (Centre for Social Work and Social Justice) published Well-being is Political…Experiencing Social Shock
• 2^nd April 2020, Tara Van Ho (School of Law) published COVID-19 Symposium: A Time to Kill ‘Business as Usual’–Centring Human Rights in a Frustrated Economy (Part 1) and COVID-19 Symposium: A Time to Kill ‘Business as Usual’–Centring Human Rights in a Frustrated Economy (Part 2).
• 14^th April 2020, Koldo Casla (School of Law) published New policies for a new crisis.
• 20^th April 2020, Martha Spurrier, Director of Liberty, contributed to the HRC’s blog A Public Health Crisis and a Crisis of Rights.
• 27^th April 2020, Andrew Fagan (School of Law) published Human rights and democracy: A relationship in trouble?
• 30^th April 2020, Professor Lorna McGregor (School of Law) published Contact-tracing Apps and Human Rights on EJIL:Talk.
• 3^rd May 2020, Eliana Cusato (School of Law) published Beyond War Talk: Laying Bare the Structural Violence of the Pandemic on COVID-19 n which using the concept of structural violence, she shed light on the socio-economic-ecologic violence that pre-exist and persist beyond the ‘crisis’ and that the ‘war’ narrative conceals.
• 6^th May 2020, Anil Yilmaz Vastardis (School of Law) co-authored a COVID-19 and the Precarity of International Investment Law on the potential risks posed by international investment protections to public health measures taken by governments in response to covid19. It was followed up with a video conversation EL Collective Conversation #7: COVID-19 & International Investment Law with M. Sornarajah
• 6^th May 2020, Judith Bueno de Mesquita (School of Law) and Benjamin Mason Meier (University of North Carolina) published Realizing the right to health must be the foundation of the COVID-19 response.
• 14^thMay 2020, In his piece Knowing all of the law, all of the time – responding to COVID-19, the Geoff Gilbert (School of Law) addresses how the pandemic presents new and pressing issues for Refugees and IDPs whose lives are already complex and challenging. He argues that existing law can address these challenges provided that we have the knowledge and will to use it.
• 26^th May 2020, Aoife Nolan (University of Nottingham) and Judith Bueno de Mesquita (School of Law) and published Of Limitations and Retrogression: Assessing COVID-19’s Impact on Children’s ESC Rights.
• 29^th May 2020, together with the UN Special Rapporteur on the right to health, Dainius Puras, Luisa Cabal (UNAIDS), Allan Maleche (KELIN, Kenya) and Benjamin Mason Meier (University of North Carolina) Judith Bueno de Mesquita (School of Law) co-authored a comment in The Lancet “The right to health must guide responses to COVID-19”. Whilst human rights have been frequently addressed in COVID-19 responses, this has been predominantly in terms of restrictions on civil liberties. By contrast, the authors call for more attention to be given to the implications of COVID-19 and governments’ responses for the right to health and other social and economic rights, as well as to transboundary obligations of international assistance and cooperation for these rights.
• 2^nd June, Ahmed Shaheed and Professor Lorna McGregor (School of Law) published The COVID-19 Pandemic: Five Urgent Principles for Leaving No One Behind through Technology.
• 12^th June, Professor Colin Samson (Department of Sociology) published Regarding the Infection of Others: Pandemics and Colonial Indifference.

Webinars:

• In cooperation with the National Mental Capacity Forum (NMCF), Essex Autonomy Project (School of Philosophy and Art History) hosted a series of three webinars for frontline professionals who are struggling with clinical, ethical and legal challenges associated with administering the Mental Capacity Act, and ensuring respect for the human rights of persons with impaired decision-making capacity, in the context of the pandemic.
• 22^nd April 2020, As Coordinator of the Economic and Social Rights Academic Network UK and Ireland, Judith Bueno de Mesquita (School of Law) organised a webinar COVID-19 and economic and social rights: domestic and global perspectives, with leading experts on economic and social rights from the UK, Ireland and beyond presenting and participating.
• 23^rd May 2020, Eliana Cusato (School of Law) participated in the ‘Reading International law in the Context of Covid 19: Narratives and Responses’
• 17^th June 2020, Andrew Fagan (School of Law) gave a talk titled The Politics of Identity in the UK: Before, During and ‘After’ COVID-19 on Essex Explore.

Podcasts:

• Before the COVID-19 Crisis there was the Refugee Crisis: Protecting Forcibly Displaced Persons in a Global Pandemic (with Geoff Gilbert (School of Law) and Dr Madeline Garlick of UNHCR on the HRC’s RightsCast)
• Human Rights In The Time of COVID-19 (with Koldo Casla, School of Law)
• Human Rights in the Time of Coronavirus (with Judith Bueno De Mesquita, Daragh Murray and Dr. Koldo Casla, all from the School of Law, on the HRC’s RightsCast)
• Judith Bueno De Mesquita (School of Law) has participated in three podcasts focused on COVID-19, three within the Better Human Series (episode16, 17 and 22).

Falling short where it matters most: The need to supplement anti-poverty measures with anti-discrimination legislation

by Viraj Ananth

Conventional understandings of socio-economic disadvantage (SED) view it as a multi-dimensional phenomenon, requiring simultaneous efforts to redistribute economic goods and eliminate status-based inequalities.  However, anti-poverty measures in numerous jurisdictions including India, Canada, the United Kingdom, and the United States of America, ignore this dichotomy and focus predominantly on redistribution of material wealth.  It is thus unsurprising that while some reports boast of significant declines in global poverty, more modest ones highlight the failures of redistribution to uplift the most vulnerable populations.

Within this context, the recent Indian Equality Bill, 2019 (and its subsequent 2020 version) were welcome developments.  In contrast to earlier attempts to draft an all-inclusive anti-discrimination legislation, the Equality Bill, 2019 includes SED as a ‘protected characteristic’.  This piece argues in favour of incorporating SED as a stand-alone ‘protected characteristic’ in anti-discrimination legislation because: first, recognition effectuates redistribution by eradicating the social restraints on upliftment; second, inclusion refocuses redistributive efforts on the specific needs of socio-economically disadvantaged groups (‘the Group’); and third, inclusion allows for more comprehensive protection of other protected groups.

 

Recognition as the means to effectuate redistribution for the group

Global efforts to uplift the Group have largely been concerned with the redistribution of material wealth. This approach ignores the profound status-based discrimination of the Group, which precludes it from effectively using material resources to elevate itself. Anti-discrimination legislations respond to such status-based discrimination through ‘recognition’ — which seeks to deconstruct hierarchical social relations and eradicate prejudices that disadvantage status groups. Accordingly, recognition must supplement redistributive measures by eradicating bias in society, to ensure meaningful upliftment.

Historically, the Group has been negatively stereotyped, both inter-personally as well as structurally, to the extent that bias pervades government policies and decisions. Stigma arises because the merits of the Group are evaluated against dominant standards, with little consideration of its specific conditions. Accordingly, in market economies, low economic value or output is commonly attributed to personal fault and entails direct status implications — resulting in the construction of ‘poorness’ as a status group. The Group is commonly identified with undesirable characteristics like low intellect, laziness and disinterest in education and elicits negative reactions such as disgust and neglect. This results in discrimination in routine interactions including school admission, job recruitment and housing, effectively denying the Group of participatory parity. Stigmatisation also causes psychological harms, including depression, low self-esteem and self-stereotyping.

 

Bias may be structural — wherein ‘neutral’ institutions and policies, developed within a context of societal inequality, subconsciously reinforce negative stereotypes. For instance, rights-claims by the Group are inherently viewed as suspect, in that individuals must first justify their claim to adjudicatory space. Cognizant of such structural biases, the Group is less likely to approach social institutions. Such structural bias may also be perpetuated through judicial decisions which ignore the cultural dimensions of poverty. For instance, both the Canadian and Indian Supreme Courts have, on occasion, ignored the social restraints on upliftment and characterised the Group as irresponsible authors of their own misfortune.

Laws may also entrench this bias by having a disproportionate impact on the Group. For example, several countries frame social security as a predominantly contributory model, which only rewards those who are ‘productive’. Similarly, zoning laws often force marginalised communities to stay far from their workplaces in urban centres. These laws underpin prejudices that the Group is less deserving of dignity. Such systemic bias against the Group negates established conceptions of justice — such as those of John Rawls and Thomas Nagel — who emphasise that individuals’ pursuit of wealth should not be restrained by arbitrary determinations like social status or biased political decisions.

Therefore, SED undeniably involves identity politics which inhibit the Group’s ability to uplift itself using material resources. The Group is not merely identified as unworthy of respect but is also denied the status of a full citizen in society. Accordingly, redistributive measures must not operate in isolation and should be supplemented by recognition of the status dimensions of SED. This will tackle stigma, affirm individual value and recognise past disadvantage arising from cyclical exclusion. In short, recognition serves as the means for effective redistribution.

 

 

Aligning redistribution with the needs of the group

The second compelling argument for including SED as a standalone ground in anti-discrimination legislation is its impact on reconciling biased redistributive measures with the needs of the Group. Redistributive policies commonly result in disparate treatment of socio-economically disadvantaged individuals due to the internalised prejudice of decision-makers.

At the highest level, this is seen through the reliance on ‘absolutist’ measures of poverty, which ignore social factors. By defining individuals in purely economic terms, and ignoring the specific circumstances that may restrict their full participation, policy-makers affirm notions of the Group as responsible for their hardships. Simultaneously, narrowly defined objectives analogous to ‘equality of treatment’ fail to address the asymmetric power structures that restrict equality of outcome or opportunity. This is best evidenced by the failures of the Jawaharlal Nehru National Urban Renewal Mission and the Rajiv Awas Yojana (Scheme) in India with respect to the relocation of slum dwellers. Dwellers were provided alternative housing arrangements far from their sources of income, in areas lacking basic infrastructure such as electricity, water and sewage disposal. No consideration was paid to providing alternate sources of employment or informal credit, which were otherwise found in slum networks. A narrow conception of redistribution inhibited the effectiveness of these programs, by disregarding the specific circumstances that obstruct slum dwellers’ betterment.

Narrow objectives are also commonly reinforced by success parameters that “validate particular world views and prioritise selected areas of knowledge”. For instance, several social security schemes in India characterise families as single units and define income in terms of the male breadwinner. This reaffirms dominant narratives by relegating issues of women poverty to the background. Further, redistributive measures are often coloured by the biases of decision-makers, who may make unfounded assumptions about the worth and needs of the Group. Such biased measures in turn reinforce the prejudices which motivate them. In the slum dwellers example, these biases materialise in the form of poor quality houses, with severe structural defects. This amounts to government-endorsed reinforcement of societal perceptions about slum dwellers as unclean and unworthy of respect.

Thus, policies which appear neutral often have cultural dimensions that serve to the detriment of the Group. Inclusion of the ground will allow the Group to challenge both SED discrimination and government policies that reinforce negative stereotypes. This will allow the Group to bypass constitutional challenges relying on the broader right to equality, which are unlikely to succeed in jurisdictions like India, Canada and South Africa due to the narrow ambits of the right as excluding socio-economic disadvantage. Concurrently, the public sector duty to promote equality will ensure that government policies pay due regard to the increasing socio-economic divide, and eradicate systemic bias through evidence-based decision making.

 

Better protection for other protected groups

The final argument for including SED as a ground deals with its widespread intersection with other forms of status-based discrimination. It is well established that protected groups are disproportionately represented among the Group. Accordingly, many such groups are defined not by status nor class alone, but by a complex intersection of oppressive forces. This intersectional disadvantage means that the lived experiences and interests of such groups are vastly different from other groups defined solely by the same status. Accordingly, in adjudicating rights-claims by such individuals, courts must not engage with the disadvantages in silos, but must consider their intersectionality — in terms of the cross-cutting nature of status-based and poverty-based discrimination.

Further, due to this disproportionate representation, numerous governmental and private policies which purportedly discriminate on socio-economic grounds — such as voter ID laws and credit history screening for job recruitment — inordinately impact other protected groups like women and ethnic minorities. Traditionally, such specially disadvantaged groups would be required to challenge these policies as discriminatory against their status. However, these policies are commonly defended as discriminating on the basis of, not status, but socio-economic grounds (which is permissible). Inclusion of SED as a standalone ground will push courts to better appreciate the linkages between forms of discrimination and deliver more comprehensive responses.

Framing rights-claims along status lines may also serve to alienate other socio-economically disadvantaged status groups from the benefits, and foster unhealthy competition for scarce resources. Including SED as a ground will allow claims along both status and SED lines. This will allow the Group to recognise shared experiences, mobilise along socio-economic lines and pose stronger challenges to discriminatory policies. Finally, inclusion will reduce socio-economic disparities within protected groups. Recruitment and housing policies, for instance, often favour socio-economically advantaged members of a protected group (rich women) to the detriment of their counter-parts (poor women). A standalone ground of SED will better protect against such outcomes.

 

Conclusion

In societies where individual worth is defined by both market and cultural values, it is superfluous to address SED through merely the redistribution of economic goods.  SED is inextricably linked to status, because social barriers restrict the Group’s ability to use material resources to uplift itself.  Once this is established, it is clear that anti-discrimination statutes — which eliminate prejudice and affirm individual worth — must supplement redistributive efforts.  Further, by granting justiciable rights and imposing an equality duty on the government, anti-discrimination legislation will reconcile redistribution measures with the specific needs of the Group.  Finally, in allowing claims to be framed as both status and SED-based, a standalone SED ground will bring intersectional considerations to the forefront and grant fuller protection to all protected groups. This will also stimulate mobilisation along socio-economic lines and reduce economic disparities within protected groups.

 

ABOUT THE AUTHOR

Viraj Ananth is a fourth-year B.A. LL.B. (Hons.) student at the National Law School of India University, Bangalore.

Spotlight on Clive Stafford Smith OBE

Part 2 of 2

Each month, the HRC Blog features a significant figure from the Human Rights community to go under the Spotlight, answering questions put by students from the University of Essex.  This month, we feature Clive Stafford Smith OBE.  Part 1 covered questions about the death penalty and COVID19.   

 

Note from the Editor: This week is a particularly poignant one for Clive as it would have been the 60th birthday of Edward Earl Johnson, who was wrongfully executed in a Mississippi gas chamber in 1987 at the age of 26.   Edward’s tragic case came to the world’s attention through the documentary, Fourteen Days in May, which captured Clive’s attempts to halt the execution and followed Edward’s last few days and very final moments.  I would urge anyone interested in human rights and justice to watch this powerful documentary and support the work of Reprieve , the organisation Clive founded to give free legal support to the most vulnerable and forgotten people in this world. 

I would like to thank Clive for spending some of his precious time in answering our questions and for his inspiration to those of us joining the growing global human rights defence team.

 

About Clive

Clive Stafford Smith is the founder of ‘Reprieve’ and a well known human rights lawyer.  He has spent his career fighting against the death penalty in America, only taking cases of those who could not afford a lawyer, assisting in the representation over 400 prisoners and preventing their execution in 98% of cases.  Clive is also known for his work in representing detainees at Guantanamo Bay, successfully suing the US government to gain access to the facility, and helping to secure the release of some 80 detainees to date, with seven clients still there.  In addition to visiting and representing the detainees, Clive tracked down the families of ‘disappeared’ prisoners across the Middle East, prompting some unwelcome ‘interest’ from US allies, including the Jordanian Secret Police, who detained him in 2004.  In 2000, Clive was awarded an OBE for ‘humanitarian services’ and has won a raft of awards in the field of human rights.

 

Students’ Questions Answered

Clive was gracious enough to allow the students at Essex an opportunity to send him  some questions about his experiences and ongoing work in the field of human rights.  Clive answered questions on a range of topics.  In this second part, we explore the topics of Guantanamo Bay,  criminal justice reform and the decolonisation of the curriculum.  Clive also has some wise words of advice for our human rights students.

 

COUNTER-TERRORISM  & GUANTANAMO BAY

Clive at the entrance to Guantanamo Bay

Q: What challenges does the use of new technologies in counter-terrorism measures create for human rights activists?

A: There is no such thing as a challenge, only an opportunity.  But certainly the Drone Age means that we kill people around with world with some degree of impunity.

And for those of you who have read I, Robot by Isaac Asimov, it is notable that his first law of robotics (coined in 1950, shortly after the first use of a nuclear bomb) states: “A robot may not injure a human being or, through inaction, allow a human being to come to harm.” Sad to say, like the Manhattan Project and nuclear weapons, the military is in charge of most AI being used in drones, and the only use is to kill people. Again, we have the world upside down.

 

Q: To what extent do you believe that removing the human element in extrajudicial executions through the use of unmanned drones in the war on terror has led to an increase in human rights violations and blow-back on western powers?

A: This is indubitably true, as it has lowered the threshold for warfare (we can kill people in Waziristan without risk of American body bags – indeed while our “drone pilots” are drinking coffee in Nevada). We have also ignored hundreds of years of the developments of the law against assassination, and are going around the world killing people.

And that is just the Americans and the British. In turn, we encourage others, like the Russians (in Salisbury) and the deranged President Duterte (in the Philippines).

 

Q: Does the Guantanamo Bay Periodic Review Board still exist and does it still operate?  And what are the prospects for those already cleared for release being allowed to return to their home countries during Trump’s tenure..…Abdul Latif Nasser being one.

A: The “review processes” in Gitmo have always been a sham – “kangaroo courts” in the words of UK Justice Steyn. Nobody has been cleared since Trump became president so it does not matter that the PRB still exists in theory.  Nobody is going to be released by Trump, based on his midnight tweets. It is back to the middle ages, when a king could just lock you up without trial based on his fiat.

 

CRIMINAL JUSTICE REFORM

Q: With the George Floyd protests and Black Lives Matter movement garnering an unforeseen amount of international pressure for racial justice, civil rights activists are championing for total criminal justice reform in the US.  If this were to occur, in what context would you see this happening? What would be your primary goals in the implementation of a ‘just’ criminal justice system?

A: By and large I would encourage people not to tinker with the machinery of death and incarceration. It is anathema. I would no more send someone I love to prison, no matter what they did, than I would thrash my 11 year old child. Prison solves nothing at all.

Yes, there are some dangerous people. Many of them are currently policemen with guns, but others are those who start wars, and there are people who commit serious offences like murder. But if you think you would never murder, you need to ask yourself why? Is it because you are somehow morally superior (like the Klan?) or is it because you had many benefits that others do not have?

There are other solutions to our societal problems, but for that you may have to wait for my next (thrilling) book…

 

DECOLONISING THE CURRICULUM

Q: Many people are calling for the de-colonisation of the educational curriculum in Europe and America.  Do you believe the same is necessary in the theory and practice of human rights in order to provide genuinely universal implementation?

A: It is not so much de-colonisation that we need, as de-mystification. What we are taught in schools and in life is just nonsense on many levels. People were not “men of their times” they were barbarians. As are we today in many ways. The more interesting issue is whether we cannot look at ourselves today and identify the way in which we, as a society, are just mad.  Obviously racism is mad.

I challenge everyone to come up with at least one practice that you see around you where the overwhelming majority of the world (or your country) thinks it is totally right and justified, but you think they are all a bit deranged. Racism is not good enough as there are lots of people who think that is insane. So you have to go much further afield. If you can’t think of any, then I fear you are a subject of indoctrination in the same way as the people were who burned the witches in Salem.

One example might be the idea that Britain should have closed borders and clutch close to our breasts all the benefits we have from pillaging other countries, just because we happened to get away with it and now say we are “British”. But in my world there are many examples. I sit watching the world around me with bemusement.

At a very simple level, human rights are about humans. They are not about British people or Americans.  It is telling in this regard that the US has not ratified one human rights convention that is enforceable in a US court; just as it is telling that the British think that “parliamentary supremacy” means that Priti Patel can tell us how nasty we should be to other people (rather than supremacy over a nasty executive, originally perhaps King Charles 1).

 

ACCOUNTABILITY

Q: With economic interests at the heart of international relations, what are the prospects for holding the states with the biggest pockets accountable for human rights violations?  And if existing mechanisms are not working to provide that accountability, what can we do as human rights advocates to make real change?

A: “Accountability” does not mean prosecuting people and putting them in prison. On one level, that makes us as unpleasant as them. Rather, it means bringing power to the powerless, and putting a stop sign up to abuses. That is remarkably easy, partly because you and I are not afraid of anyone, and politicians are afraid of everyone.

Power is not just about law, which is only one tool in our tool box. It is as much about the court of public opinion. So those of us who are privileged – which includes everyone who has the spare time to read me rambling on – just has to do what my mother told me to do, which is to get between the haters and the people who are being hated, and just say ‘No’.

 

FINDING NEW TACTICS THAT WORK

Q: As a Human Rights Lawyer, one needs to keep on transforming ways to keep the cause alive but sometimes bringing change is difficult.   How have the tactics changed over the years to today, when social media has become such an important tool for mobilizing causes?

A: You’d be bored to death if you did the same things all the time, but the rules actually remain the same. The most important rule is that we are Brer Rabbit and the when they misbehave the government plays Brer Fox (as do the other bad guys). That means that the government is very big and quite strong, but not terribly clever; whereas you are small, rather clever, and a teeny bit arrogant. So all you have to worry about is getting a bit ahead of yourself.

Our job is persuasion. Another flaw the liberals have is that they are too pious and take themselves too seriously.  Humour is a much more persuasive tool than piety.  And we have to remember that we are trying to persuade people who speak different languages.

There is good in everyone but you have to find it. An example would be a capital jury trial: the jurors can only get on the case if they promise that they can impose the death penalty so you are foolish if you preach to them that the death penalty is immoral. It also does not work to quote Shakespeare as I once did (“The Quality of Mercy is not Strain’d”). On the other hand, in the US the chances are they are Christian, which means that the death penalty is really about Matthew chapter 5, verse vii: “Blessed are the merciful for they shall obtain mercy.” Translated to a juror, this means that if you do as the prosecutor wants and show no mercy, you get eternal damnation; if you do as I suggest and show mercy, you go to heaven. Your choice.

 

HIGHS, LOWS AND SOME WISE WORDS

Q: What has been your greatest achievement and your biggest failure or regret throughout your career?

A: Hard to say here. I have learned huge amounts from people I have represented, and also been able to hand back lives to a fair number of people who were being tormented by one government or another. That is cool, but I don’t think of it as an achievement, so much as a privilege.

On the other side of the ledger, notwithstanding losing six clients to the chamber (including Edward Earl Johnson – you can watch that miserable failure online.  My greatest failure by far is the fact that I advocated life without parole as an alternative to the death penalty in the 1980s at a time when life generally meant 7 to 10 years.  Jurors would vote death because they were afraid of parole and so I wrote a fairly influential article about how we should have “truth in sentencing” so that life meant life – purely to avoid the death penalty.

Taking the fact that there are now 206,000 people serving LWOP in the US, and that they each serve at least 25 extra years each, I recently calculated that my bright idea had caused perhaps a total of 1,954 MILLION days of additional prison misery for people.

I don’t beat myself up about this too much. I think it was an astoundingly stupid thing to advocate, but the best I can do is never to allow another of my clients to suffer LWOP.

 

Q: Do you have any unfulfilled burning ambitions left?

A: I am not sure I have any “ambitions” – that is an odd word.  I do have lots and lots of things I want to do. And they change every day as there are fascinating things all around. I just wish there were 72 hours in the day.

 

Q: What advice do you have for any students embarking on a career in human rights?

A: I am afraid I have a full lecture (rant!) on this, and we will have to share it sometime. But in a word, never accept the foolish rules society (and your teachers!) foist upon you.  Do not ask yourself, for one thing, how you can ‘get’ a job – rather, think how you can create the job you want to do.  I have never had a real job in my life and I do not plan to have one. Instead, I have always created the job I want, and raised the money to fund it.  When you think how much time you waste on other things like Latin and Maths (I have never found a Roman to talk to, and while I did Further Maths A level it has no relevance to my life), it is astounding that we spend so little time working on creating a job we’d like to do.

 

 

 

International Human Rights Weekly News Roundup

by Lauren Ng and Pauline Canham

This week’s stories in focus

Protests against Israel’s plans to annex the West Bank as Coronavirus cases rise again

Thousands rallied in Jericho on 22 June to protest against the plan by Israel to annex large parts of the occupied West Bank and the Jordan Valley.  Those protesting included Nickolay Mladenov, the Middle East UN peace envoy and diplomats from several nations including Britain.  More than 1,000 European MPs, including 240 from the UK, have signed a letter opposing Israel’s plans, which would result in the extension of Israeli authority to 30% of the West Bank, including  235 Israeli settlements considered illegal under international law.  The West Bank and Gaza are those areas considered by Palestinians as a future independent state and if the annexation goes ahead, it would leave Palestinian areas significantly fragmented and some Palestinians effectively living in Israeli enclaves with no rights.

47 human rights experts have released a joint statement calling on the international community to oppose what they call “a 21st century apartheid” that “incites wars, economic devastation, political instability, systematic human rights abuses and widespread human suffering.”  Israel’s Prime Minister Netanyahu is emboldened in his plans by the support of the Trump administration and is trying to push it through before the possibility that the White House might change hands later this year.

Meanwhile, cases of coronavirus are on the rise again in the West Bank, since restrictions were lifted in May.  This week saw the number of cases double as the Palestinian Health Minister warned that a second wave could be “more dangerous than the first.”  As a result of a jump in cases and fears of a new emergence of the virus, some areas including the city of Hebron have gone back into lockdown.   Israel have so far reported 308 fatalities and 3 in the Palestinian territories.  Netanyahu is urging people to adhere to social distancing guidelines and has given the police the power to impose a fine, equivalent to $146, to anyone not wearing a mask in public

US Supreme Court bans LGBTQ employment discrimmination

On June 15 this year, the US Supreme Court made a sweeping decision prohibiting employment discrimination on the basis of sexual orientation or gender identity under federal law. The title VII of the 1964 Civil Rights Act, which bans discrimination on the basis of sex among other things, now protects LGBTQ employees in its discriminatory clause. The decision was written by Judge Neil Gorsuch, nominated by the Trump administration, and will undeniably cause tensions among the judicial conservatives and Republican nominees.

While the bill has expanded LGBTQ civil rights protection in some states, it is expected to face challenges in the Republican-controlled Senate. Although 33 states offer some form of protection against LGBTQ workers, only 22 states prohibit discrimination based on sexual orientation and gender identity. This leaves 17 states with no protection at all and thus, vulnerable to harassment and abuse in the workplace.

Nevertheless, this ruling remains significant – it is the first time the court has spoken about legal protections for transgender rights.  This issue comes shortly after Trump confirmed his administration would continue to rollback health care protections for transgender people, which is due to take effect on August 18^th and will undoubtedly become a legal battlefield in the upcoming months.  Following the court’s ruling, and as per tradition, Trump immediately went to Twitter to thunder back, avowing:

“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives. We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”

It is expected this decision will have ramifications for the health discrimination rule of the US Department of Health and Human Services (HHS).  The HHS has maintained that the implications of the court’s new ruling will likely not affect their rule as the “binary biological character of sex… takes on special importance in the health context”, which “might not be fully addressed by future [job discrimination] rulings”.  However, legal scholars have countered and stated that the HHS’s argument holds little weight as the legal opinion confirmed that sexual orientation and gender identity is included in category of ‘sex’; thus, leaving the healthcare rule on shaky ground.

 

Other stories making the headlines around the world

 

Americas

• Mexico wont send workers to Canadian farms that ignore COVID rules
• US Supreme Court Allows Dreamers ‘To Breathe Again’ (Human Rights Watch)
• ‘State-sanctioned violence’: US police fail to meet basic human rights standards (The Guardian)
• Rights groups go to court over the US challenge to human rights (Human Rights Watch)

Europe

• New UK ‘Overseas Operations’ Bill decriminalises torture (The Independent)
• Oxford college backs removal of Cecil Rhodes statue (The Guardian)
• Devon and Cornwall police officer investigated over George Floyd meme (The Guardian)
• Windrush scandal: cross-government group aims to tackle ‘terrible’ treatment (The Guardian)
• Syrian doctor arrested in Germany for ‘crimes against humanity’ (Al Jazeera)
• Britain’s big race divide (CNN)
• Marcus Rashford: Manchester United forward’s campaign to make change happen (BBC)

Middle East

• Libya: GNA calls Egypt’s military threat ‘declaration of war’ (Al Jazeera)
• Saudi Arabia condemns attacks by Yemen’s Houthis on Riyadh (Al Jazeera)
• Activist friend of Jamal Khashoggi living in Canada is warned he is a target (Deutsche Welle)
• Remains of Filipino expats working in Saudi Arabia to be flown home (Al Jazeera)

Asia

• Five things to know about the India-China border standoff (Al Jazeera)
• China revealed some details of Hong Kong’s national security law and it may be as bad as critics feared (CNN)

Africa

• ICC hears prosecutor’s appeal against Laurent Gbagbo’s acquittal (Al Jazeera)

• Unrelenting Killings in Congo’s Ituri Province(Human Rights Watch)

World

• COVID-19: New women-led UN initiative aims to save lives and protect livelihoods (UN News)
• Global ban needed on bogus ‘conversion therapy’, argues UN rights expert (UN News)
• Human Rights Council calls on top UN rights official to take action on racist violence (UN News)

Sex redefined: The US Supreme Court expands anti-discrimination laws to include LGBTQ rights

by Palak Kumar and Insaf Ahamad

A landmark decision rendered by The U.S Supreme Court on June 15, prohibits employment discrimination of gay and transgender individuals.  Expanding the scope of Title VII of the Civil Rights Act of 1964, which prohibits sexual discrimination, the court ruled that discrimination based on sex includes discrimination based on sexual orientation.

The court consolidated three cases  Bostock v. Clayton County, Altitude Express v. Donald Zarda, and Harris Funeral Homes v. EEOC, where each of them involved the termination of employees by the employers upon learning about their sexual orientation or gender identity.  Bostock, who used to work for Clayton County, Georgia, as a child welfare advocate, was terminated for conduct “unbecoming” of a county employee because of his participation in a gay recreational softball league.  In another similar incident, Donald Zarda, who was a sky diving instructor was terminated shortly after he told one of his clients that he was gay.  Finally, Amy Stephens who had joined the funeral home as a male employee was terminated after six months when she started going to work dressed in women’s clothes.  In all of the above incidents, the sexual orientation of these employees is not said to have had any bearing on the skills required for their job.

Title VII outlaws discrimination on the grounds of race, color, religion, sex and national origin. The Court was faced with the issue as to whether the term ‘sex’ would also include sexual orientation.  The employers, by referring to various contemporaneous dictionaries, emphasized that the term ‘sex’ refers only to an individual identity as a male or a female, as determined by reproductive biology.  The employees on the other hand contended that the term is not restricted to anatomy and has wide contours to include sexual orientation and gender identity within its ambit.

With a majority of 6:3 the U.S Supreme Court finally put to rest the much-debated issue of whether termination of an employee on grounds of sexual orientation and gender identity would be a violation under Title VII.  The landmark decision authored by Justice Neil Gorsuch recognized that “when an employer fires an employee for being homosexual or transgender, he fires that person for traits or actions that would not have been questioned in members of a different sex.  Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The majority relied on the ‘but-for causation test’ and held that so long as sex is one ‘but-for’ cause behind the employer terminating the employee, it involves a violation of Title VII.  The court was of the view that an employee’s sexual orientation or transgender status should not be the basis for an employer’s decision and an employer who relies on an employee’s sex as a reason for his discharge from employment will be guilty of discrimination under Title VII.

The Court by citing a plethora of precedents vindicated its stance that any discrimination ‘because of’ sex would not be justified irrespective of the objective sought to be achieved.  It relied on Phillips v. Martin Marietta Corp, wherein the employer refused to hire women with young children but hired men having young children.  The employer eschewed the discrimination by pointing out that discrimination was dependent not only on ‘sex’ but also on another criterion, which was the presence of children.  Similarly, in In Los Angeles Dept. of Water and Power v. Manhart, the employer insisted that its discrimination was mainly to promote equality of two sexes.

The court held that the lessons that the above cases hold for us would be that we are not concerned with a) the label or the reason why the discriminatory practice was undertaken, b) whether the discrimination was solely on the basis of sex or any other factor; c) whether the practice was adopted equally on both sexes as groups. It held that an adverse treatment of an individual due to his/her sexual orientation or transgender identity would inherently amount to discrimination irrespective of the above factors.

In a scathing dissent, Justice Alito along with Justice Thomas opined that ‘transgender status and ‘homosexuality’ are distinct concepts from ‘sex’ and discrimination on the basis of sexual orientation does not entail discrimination on the basis of sex and “there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted”. To supplement this, he interestingly noted how homosexuality was considered to be a mental disorder in 1964 when Title VII was enacted.  Also, he finds it difficult to understand how the cases of  Phillips v. Martin Marietta Corp (where women with young children were discriminated against vs. men with young children) and  Los Angeles Dept. of Water and Power v. Manhart  (where women were required to make larger contributions to the pension fund ), cited by the majority to buttress their decision, finds any relevance in the current case as they were cases that plainly dealt with ‘discrimination on the basis of biological sex’.

The role of the judiciary is limited to the analysis of statutory text rather than statutory interpretation.  Affirming this, Justice Kavanaugh in his dissent argued, while interpreting statutes, courts should adhere to the ordinary meaning and not the literal meaning. To explain this, he gives an example, “washing machine” could literally refer to any machine used for washing any item, but in everyday speech it means a machine for washing clothes”

The separation of power collapses when the judiciary starts to legislate, and the Rule of law and democratic accountability suffers when courts start looking at legislators’ subjective intentions instead of the ordinary meaning of the text

In his dissent, J.Alito further raised concerns about the far-reaching ramifications of the decision and how it can have implications on freedom of religion, freedom of speech, personal freedom, and safety. For instance, bringing attention to bathrooms, locker rooms and similar things he states, “For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm” and the judgment provides no reason why a transgender person’s (with a male body and identifies herself as a female) claim to access women’s locker room might not succeed.  He also raised similar concerns in women’s sports and housing.

While the victory is to be celebrated, the judgment also opens a new door for conflict between non-discrimination laws and freedom of religion.  Title VII which grants an exemption for the religious organizations allows them to hire “individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities”. It remains to be seen in the future how the judgment impacts the hiring autonomy of faith-based organizations and if the same ‘but-for causation standard’ stands when the employee claims he/ she was terminated based on religious belief or expression i.e. if the individual’s conduct flouts religious tenets, noting that major religions like Christianity, Islam and Judaism do not recognize homosexuality.  Also, the possibility of employers challenging the application of Title VII to gender identity or sexual orientation under the Religious Freedom Restoration Act 1993 is open if the employers feel such an application violates their religious convictions, a question that was not addressed by the court.

Nevertheless, the decision marks a resounding victory to the LGBTQ rights movement in the U.S and the fact that the ruling comes just days after the Trump administration reversed the non-discrimination protections for LGBTQ people in health-care and health insurance further adds to the victory.

 

ABOUT THE AUTHORS

Palak Kumar is currently an undergraduate student of B.A L.L.B (Hons) at the National Law Institute University, Bhopal.

 

 

 

Insaf Ahamad T.K  is currently an undergraduate student of B.SW L.L.B (Hons) at the Gujarat National Law University, India.

 

Spotlight on Clive Stafford Smith OBE

Part 1 of 2

Each month, the HRC Blog features a significant figure from the Human Rights community to go under the Spotlight, answering questions put by students from the University of Essex.  This month, we feature Clive Stafford Smith OBE.  This is part 1 of 2.

 

About Clive

Clive Stafford Smith is the founder of ‘Reprieve’ and a well known human rights lawyer.  He has spent his career fighting against the death penalty in America, only taking cases of those who could not afford a lawyer, assisting in the representation over 400 prisoners and preventing their execution in 98% of cases.  Clive is also known for his work in representing detainees at Guantanamo Bay, successfully suing the US government to gain access to the facility, and helping to secure the release of some 80 detainees to date, with seven clients still there.  In addition to visiting and representing the detainees, Clive tracked down the families of ‘disappeared’ prisoners across the Middle East, prompting some unwelcome ‘interest’ from US allies, including the Jordanian Secret Police, who detained him in 2004.  In 2000, Clive was awarded an OBE for ‘humanitarian services’ and has won a raft of awards in the field of human rights.

 

Students’ Questions Answered

Clive was gracious enough to allow the students at Essex an opportunity to send him  some questions about his experiences and ongoing work in the field of human rights.  Clive answered questions on a range of topics.  This first part focuses on the Death Penalty and the impact of COVID 19

DEATH PENALTY

Q: Due to the racial bias in its administration, historic links have been made comparing the death penalty in the US to lynching methods previously used in the South. From your experience working on capital punishment within the US criminal justice system, in what ways would you agree that the death penalty is a “direct descendant of lynching”, and in what ways would they differ?

A: First, it must be said that the US has a direct form of lynching today, which is the assassination programme, a simple case of “execution without trial” (which is what lynching was). The archetype of this is the case we have pending of Bilal Abdul Kareem, an African American comedian-turned-war-correspondent who is in Syria, and who the US has tried to killed five times to date. So there is more than one form of US death sentence.

But in terms of the death penalty as it is more commonly conceived, it is only a system of societal control, the same as lynching. The underpinnings of lynching involve a racism that seeks to play poor white people (the KKK and their ilk) against (primarily) poor black people to prevent them seeking common cause – a demand for equality.  Likewise, it is ludicrous to think that the death penalty solves anything.  Instead, it is a way to pretend that we are solving the manifest problems in society (crime, which is mainly rooted in poverty, the proliferation of guns, drugs, and a lack of healthcare) by blaming a small number of disproportionately black ‘criminals’ and executing them.  Of course, this does nothing to solve the problems.

At the same time as with lynching, where the ‘victim’ was generally a white woman (who might only have been the object of a cat-whistle, but might have been raped by someone), we use the death penalty to value people differently.  As Justice Brennan wrote in his dissent in the McCleskey case:

At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey’s past criminal conduct were more important than the fact that his victim was white. Petitioner’s Supplemental Exhibits (Supp. Exh.) 50. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. Petitioner’s Exhibit DB 82. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey’s victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black, Supp. Exh. 51, while, among defendants with aggravating and mitigating factors comparable to McCleskey’s, 20 of every 34 would not have been sentenced to die if their victims had been black. Id., at 54.  Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim.  Ibid. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.

I was privileged to represent Warren in his last appeal, and it is indubitably true that he died because the US could not face the fact that he was being killed due to the colour of his skin.

 

 

Q: Your decades’ long work seeking to counter the death penalty in the US will have exposed you to the depth and extent of racism in the United States. How do you think the human rights community can contribute to the struggle to denounce and overcome racism in the US?

A: First, British people should take a look in the mirror.  At least the US talks about racism and tries to confront it.  The British don’t, and the comments I have heard from British people in the past BLM-weeks have been sad. “I believe all life matters,” is a refrain you would never hear in the US, any more than you would go to the funeral of someone’s child and hear someone say, “I believe the life of my own child matters too.”

Also, the British legal system is rife with racism yet nobody talks about it.  At current rates, it would take 100 years for there to be proportional BAME parity among QCs and judges (and 50 years for women).  Almost three quarters (74%) of judges went to private schools.

That said there are real problems in the US, a country that was built on slavery (much as the wealth of Britain was made, in large part, on the same dreadful practice).  Yet at least in the US we have the tools to combat it.  We can question jurors about racism (Turner v. Murray) – there is no questioning at all in the UK.  We can challenge racism in all the stages of the legal process (Rose v. Mitchell, McCleskey v. Kemp) – it is unheard of in the UK. We can challenge the racial decision making by jurors (Tharpe v. Sellers) – it is a crime to speak to jurors about their service in the UK. And so forth.

But the real issue is that we need people who are making the effort. That means you.

 

Q: What kind of practical obstacles have you faced in your journey of bringing justice to those facing the death penalty?

A: There are many. Some of the rules of the US Supreme Court are just fatuous for their failure to take into account reality.

 

Marita and Kris Maharaj

When I started doing capital trials, I had just graduated Columbia Law School, and most of my colleagues had gone to firms on Wall Street where they were paid $1,000 an hour to waste their lives representing corporations over money. We were paid $1,000 for an entire capital case.  And when the clients were on death row, they were meant to represent themselves – they could only have lawyers if they had volunteers…

 

 

And then there is the issue of innocence – the US Supreme Court has held that “mere” innocence is not enough to release someone from death row (Herrera v. Collins).  This is why Kris Maharaj – my British client sentenced to death 33 years ago, now 81 years old – remains in prison despite the magistrate judge finding that he is innocent by “clear and convincing evidence” last September 13^th – nine months ago.

But there are many other reasons.  One is the standard of proof.  While people say they must find a person guilty “beyond a reasonable doubt”, my not very scientific studies suggest that judges think this means around 83% sure – which we may translate as saying they are aiming to convict one innocent person in every six cases, or one million of the 6 million Americans who are in prison or facing it. (As Robin Hood reminds us, if you aim that low, you always miss.)

Sad to say, similar problems permeate the British system too.

 

Q: How does the approach to working on behalf of detainees in certain black sites/ secret prisons differ from cases of prisoners facing the death penalty and is one more challenging than the other?

A: Part of the problem with black sites is that you cannot get to your client, there is no rule of law, and they have no legal rights.  So that is much more challenging.  But at the same time, we have got 740 of the 780 people out of Guantánamo largely through publicity, as generally public opinion favours those being held without trial more than it favours those being held on death row after an unfair trial.

 

 

COVID 19

Q: How has the COVID19 pandemic, considering government responses to the outbreak in particular, impacted upon detention centres like Guantánamo Bay and US death row prisons?

A: Prisons are, in the words of the Washington Post, “petri dishes of the virus.”  My clients cannot “social distance” from anyone.  The best example is Kris Maharaj: 81 years old, held now in a dormitory with 45 other old men, locked in their in “quarantine” now they have had 4 men test positive, which means you are locking him in with the virus, in beds that are 3 feet apart, 24/7.  We got him off formal death row in 2002, but now the State of Florida is intent on executing him by Covid 19, before we can get him out of prison.

 

Q: Do you think lockdown measures have caused attitudes to change towards detention or have helped to raise awareness about the conditions experienced by detainees?

A: No. I think people think they have had it like prison which is nonsense.

 

Q: How has Reprieve’s work been impacted by the COVID19 pandemic?

A: I can really only speak for myself. It is busier than ever and actually I have generally found I waste lots of time travelling when I can get much more done by staying home. The only thing I really miss is being able to go to Guantánamo and see the clients in person, but at least I can talk to them regularly on the phone.

 

Part 2 of our Spotlight with Clive Stafford Smith OBE will cover the topics of counter-terrorism, The US Criminal Justice system and the ‘de-mystification’ of the curriculum.

 

 

Violence against women: The shadow pandemic and why the Sustainable Development Goals and human rights law are as critical as ever

by Christina Beninger

The COVID-19 pandemic amplifies and exacerbates the many structural inequalities that exist across societies and the world. While the virus may not discriminate, people and societies do. Those who have the least power and rights in societies – such as minority groups, women and children – are most vulnerable to being disproportionately impacted and ‘left behind’ in the wake of the current pandemic and its many health and socio-economic consequences.

As the UN highlights in its Policy Brief on the Impact of COVID-19 on Women, the pandemic has clear gender dimensions that are deepening the impact of longstanding gender inequalities, with serious consequences for women’s human rights. Women are shouldering the weight of an unequal care burden, are disproportionately vulnerable to economic impacts, and see their health rights, especially sexual and reproductive health rights, under threat as resources are reduced and reallocated.

In particular, violence against women (VAW) has emerged as a “shadow pandemic”,  amid rising rates of domestic violence, intimate partner violence and femicide as countries lock down and critical services become more difficult to access.  However, such violence is not a new problem. VAW has long been one of the world’s most pervasive human rights violations, a brutal manifestation of gender inequality and discrimination against women. Yet, there are already global frameworks in place to prohibit gender discrimination and combat VAW through existing international human rights law (IHRL) and the Sustainable Development Goals (SDGs). As this article argues, a rights-based, gender-centered approach to combating VAW is as critical as ever and must be at the centre of responses.

Violence against women – the shadow pandemic

According to the World Health Organization, at least 1 in 3 women experience VAW worldwide. The consequences are significant, impacting women’s rights to equality, health and justice. Women are killed, and suffer physical and mental harm. In sexual violence cases such as rape, their sexual and reproductive rights are threatened. Women face a wide range of barriers to accessing justice and legal protection in such cases, especially due to discriminatory social norms.

VAW affects different groups of women in different ways. The situation is often compounded for women who may face multiple and intersecting forms of discrimination, on grounds such as ethnicity, Indigenous status, disability, or sexual orientation. In addition to the severe human rights, health, and justice consequences, there is also a huge economic cost. It is estimated that VAW costs the global economy $1.5 trillion USD.

As often happens during times of crisis, amidst the current COVID-19 pandemic countries around the world have seen a significant increase in VAW.  Factors contributing to this rising shadow pandemic include pre-existing discriminatory social norms, compounded by lockdowns trapping women with their abusers, socio-economic hardship, and reduced access to services due to restrictions.

For example, in France, there has been a 30% rise in reports of domestic violence. In South Africa, VAW complaints reported to police rose by almost 40% in the first week of an intensive lockdown (as compared to 2019 weekly averages), with more than 2,300 reported cases in the first week alone. Yet, these figures are likely a fraction of the true scale of the problem, as most cases of VAW are never formally reported.

 

Leaving no woman behind? An approach based around human rights and the Sustainable Development Goals (SDGs)

The UN Secretary-General has recently said that VAW prevention and response must be a key part of pandemic response. This article argues that a rights-based, intersectional gender-centered approach, rooted in international human rights law and the SDGs, should be at the heart of the response to the current pandemic and beyond.

The SDGs offer a rights-based global framework for inclusive development that pledges to ‘leave no one behind’. Recognising that women are too often left behind; gender equality is a cross-cutting theme and foundational principle of the SDGs.  SDG 5 pledges to achieve gender equality and combat various forms of discrimination against women. It specifically includes the elimination of VAW as one of its key targets. However, progress to date on SDG 5 has been slow, and there are serious risks of backsliding during the current global crisis.

The SDGs are not only high-level global political commitments, they are based on existing international human rights law. This includes the Universal Declaration of Human Rights and binding international human rights treaties. There is already a growing body of international human rights law that prohibit gender discrimination and VAW, including the widely-ratified UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), and ‘soft law’ developments, such as the UN Declaration on the Elimination of Violence against Women.

Governments have growing legal and normative obligations under IHRL to take action and exercise due diligence to prevent and respond to VAW. According to the CEDAW Committee of experts in its General Recommendation No. 35, this includes ensuring comprehensive legal protections and holistic response services are in place, as well as service providers adequately trained to respond to VAW.  Working to bridge the gap between these legal and normative standards and the lived reality for women who experience VAW is critical – especially during crises such as the current pandemic.

 

Key measures for a gender-centered response to VAW during the pandemic and beyond

Various actors, including the UN, governments, and women’s groups have outlined a number of key measures necessary for ensuring a rights-based gender-centered pandemic (and beyond) response to VAW. Below, five key measures are highlighted.

1. First, ensure an intersectional gender perspective that puts diverse women and women’s groups at the centre of all national and international analysis and planning. SDG 5.5 pledges women’s equal participation and opportunities for leadership. Such an inclusive response is crucial given there are such differentiated gender impacts in the current pandemic situation, many disproportionately impacting women. Further, an intersectional approach is necessary to understand the differing dimensions and impacts of VAW, the pandemic, and responses to it experienced by women of varying backgrounds and situations.
2. Second, ensure comprehensive legal protections and policies for gender equality and VAW are in place, and that they are effectively implemented by adequately trained and resourced police, prosecutors, judges, and other relevant actors. While there has been notable progress with more countries enacting VAW laws, as required by SGD 5’s targets, some are not adequately implemented or resourced. There are still 45 countries that do not have any domestic violence laws in place at all.
3. Third, ensure critical VAW services, including health care, psychosocial support such as counselling and shelters, and legal services including legal aid, are in place and properly funded to provide accessible critical services. Ensuring that service providers are trained to provide appropriate responses and that women’s groups and civil society organizations providing services are adequately supported and resourced. During crises, such as the current pandemic, such services should be designated and funded as essential services. For example, Canada’s COVID-19 response plan includes $50 million CAD for shelters and support services for women.
4. Fourth, enhance awareness campaigns about VAW and designate safe places and innovative strategies for women to report violence and seek help. For example, in countries including the United Kingdom and Colombia, pharmacies and shops are designated as safe places to report violence. There has been a rise in innovative online mechanisms, such as utilising Whataspp and specialized apps to safely report violence and seek help. In countries including Argentina, emergency court processes used to seek legal protection in VAW cases are carrying on online.
5. Finally, gather and analyze sex-disaggregated data. This data is important for monitoring progress towards SDG targets, especially as there are gaps in gender equality and VAW data globally. Such an approach is also crucial to ensuring gender-sensitive and evidence-based policy and services.

The SDGs and IHRL remain as crucial as ever, if not even more so, in the wake of the pandemic that has highlighted existing inequalities in the world on various grounds, especially gender. This shadow pandemic of violence against women is itself a major health crisis – not to mention a human rights and justice emergency.  Working to eradicate VAW, with an approach rooted in international human rights law and the promises of the SDGs, must be part of both the current pandemic response and forward planning to meaningfully create a gender equal world.

This article is based on an earlier presentation given at the 2020 Global Symposium on Human Rights, the Sustainable Development Goals (SDGs) & the Law, conducted online in May 2020.

 

ABOUT THE AUTHOR

Christina Beninger is a Canadian lawyer with expertise in international law, human rights, rule of law, access to justice, and gender equality.  Christina’s more than 10 years of international development experience includes working with the United Nations Development Program and formerly serving as the International Development Law Organization’s Country Director for Myanmar.  She holds an LL.M. in International Human Rights Law (Essex), and she is currently a PhD candidate in Law (University of Cape Town).  Her doctoral research, funded by Canada’s Social Sciences and Humanities Research Council, focuses on the rule of law and women’s access to justice in gender-based violence cases.

International Human Rights Weekly News Roundup

by Amita Dhiman and Julia Kedziorek

 

Focus on ‘Black Lives Matter’

The ongoing protests in America since the killing of George Floyd, a 36 year old black man, over the use of a fake $20 note, has brought into focus the excessive use of force against protestors by the U.S. government.   From the use of tear gas to the use of paintball guns, a variety of methods have been used to disperse the crowds. Though tear gas is known as a “non-lethal” form of crowd control, the gas used to disperse protesters is dangerous because, according to the Centres for Disease Control and Prevention, ‘‘[it contains]  chemical compounds that temporarily make people unable to function by causing irritation to the eyes, mouth, throat, lungs and skin’’.   Its use is prohibited under International Law;   the Geneva Gas Protocol of 1925 banned “the use of asphyxiating, poisonous or other gases” in warfare but did not specify which gases.  The U.S. did not ratify this agreement until 1975 and reserved the right to use it in “situations where civilian casualties can be reduced or avoided”.

Amnesty International has conducted an investigation over the excessive use of tear gas by 22 countries during any kind of protests in their country.  The militarized response to the protests in the US has reinforced the calls for change in policing approaches, a call which has finally been heard by the President, as he announced an Executive Order to curb police misconduct on 16 June.

Across the U.S., the authorities have been cracking down on and detaining protesters. One such protester was Devaughnta Williams, a New York City janitor who, due to his essential worker status, was exempt from curfew.  He was arrested along with 250 others and spent a week in jail.   Protestors are being held in cramped and unsanitary conditions in overcrowded jails, risking further the spread of COVID-19.  Human Rights Watch has urged that the prison populations must be reduced and custodial arrests must be made only if necessary during the Covid-19 pandemic.

Focus on Covid-19

This week, the UK Government announced its abandonment of its contact-tracing app, after three months of work, due to its lack of compatibility with Apple technology.  Instead it was announced on Thursday that a new app will be introduced based on the Google-Apple model being used in other countries.

Many states including Germany have recently launched a mobile phone application to trace people who have come into contact with infected patients.  The new technology raises questions around the right to privacy as in many cases the method of data storage is unknown.  The applications sometimes require people to take so-called ‘selfies’, which they then send in along with GPS information.

Amnesty International reviewed 11 mobile phone apps from various countries mapping Kuwait, Bahrain and Norway as the most dangerous for privacy reasons.  In Qatar, where the new tracking app was made mandatory, many issues relating to its accuracy and efficiency were raised.  Bahrain’s ‘Be Aware’ app enters users into a game show where they can win a monetary prize if they are found at home obeying lockdown.

This type of incentive raises questions about the monitoring of personal geometric and biometric data without safeguards. Norway stopped their mobile phone app over privacy concerns and it’s clear that governments must balance the need to trace the spread of coronavirus without intrusive data collection.

Other stories making the news around the world

International

• Human Rights Council picks up again after COVID suspension, to hold racism debate (UN News)
• COVID-19 highlights ‘life and death’ stakes for greater digital cooperation (UN News)

Africa

• Somalia: Inadequate US Airstrike Investigations (Human Rights Watch)
• Libya: Apparent War crimes in Tripoli (Human Rights Watch)

Asia

• Hong Kong: Tiananmen vigil crackdown another cynical attempt to curb peaceful dissent (Amnesty International)
• In the Philippines, Free Speech is being smothered (Human Rights Watch)
• India: End Bias in Prosecuting Delhi Violence (Human Rights watch)

Europe

• Croatia: Fresh evidence of police abuse and torture of migrants and asylum-seekers (Amnesty international)
• Poland: Activists at risk of 10-year jail term for COVID-19 poster campaign challenging government statistics (Amnesty International)
• Russia: Health Workers Face Retaliation for Speaking Out (Human Rights Watch)

Middle East

• Bahrain, Kuwait and Norway contact tracing apps among most dangerous for privacy (Amnesty International)
• Qatar: Migrant workers unpaid for months of work on FIFA World Cup stadium (Amnesty International)

North America

• US Supreme Court Ruling A Victory for LGBT Workers (Human Rights watch)

 

Might or right: The devastating impact of US sanctions on the rights of Iranian citizens amidst the Covid-19 outbreak

by Hetal Doshi & Sankalp Udgata

Much has been said about the insensitivity of the Trump administration’s approach to tackling the outbreak of COVID-19, but little compares to Trump’s unswerving decision to continue economic sanctions against Iran amidst this global pandemic. The spread of coronavirus has been nothing less than a catastrophe for the people of Iran.  As COVID-19 rips through country after country, Iran’s experience has been particularly devastating with more than 182,525 confirmed cases and 8,659 declared deaths (as of 11 June 2020).  With no end to this pandemic in sight for the foreseeable future, the Iranian government is facing the unique challenge of providing medical equipment to doctors alongside access to food, basic medical facilities, and isolation centres to patients while, at the same time, trying to uplift the already crippled economy.

It is undisputed that a great deal of the suffering of the Iranian people lies within the responsibility of their own government. Nevertheless, the re-imposition of severe economic sanctions in 2018 by the United States after it unilaterally withdrew its participation in the Joint Comprehensive Plan of Action (i.e. the nuclear deal), has had devastating impacts on the economy and has severely undermined humanitarian trade with Iran.

The damage done to Iran’s economy by US sanctions left it ill-prepared for the COVID-19 crisis. The gross domestic product of Iran shrank by 9.5 percent, oil exports were down by 80 percent, and inflation is now nearly 40 percent. Now, with the spread of coronavirus in Iran increasing at an unprecedented rate, sanctions are contributing to a shortage of testing kits, medical devices, and hygienic supplies required to prevent further spread.

Impact of ‘Inhuman’ Sanctions on the Right to Health  of Iranian Citizens’

While the United States government continues to insist that it has created exemptions for humanitarian imports into its sanctions regime, broad sanctions against Iranian banks, coupled with aggressive rhetoric from US officials and a lack of clarity on how secondary sanctions will be imposed, have drastically constrained Iran’s ability to finance such humanitarian imports. A Human Rights Watch report also states that, in practice, these exemptions have failed to offset the strong reluctance of US and European companies and banks to risk facing the legal and financial risks associated with exporting or financing exempted humanitarian goods, such as vital medicines and medical equipment.

 

The consequence of such sanctions has resulted in impairing the ability of Iranian people to secure their right to health and access to essential medicines.  Health is a fundamental human right indispensable for the exercise of other human rights and is recognized under Article 25(1) of the Universal Declaration of Human Rights and Article 12(1) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR).  In July 2019, the UN Special Rapporteur on the situation of human rights in the Islamic Republic of Iran stated that the sanctions and banking restrictions will unduly affect food security and the availability and distribution of medicines and pharmaceutical equipment. The continuance of these sanctions has resulted in nothing less than gross violations of the human rights of Iranian citizens.

Extra Territorial Application of the Right to Health

The question of the extra-territorial application of the right to health has always been debatable. The ICESCR does not contain any provision on the jurisdictional or territorial applicability of the treaty. However, CESCR General Comment No. 14 declares that all states must take steps to prevent violations of the right to health (Article 12) in other countries. Thus, under ICESCR the USA has an obligation to ensure that its actions take due account of the right to health of citizens of other countries.

The US is in direct breach of these obligations, as the brunt of the economic sanctions on Iran is being faced directly by Iranian people.   Iranian suppliers of equipment like respiratory masks and ventilators are out of stock, and the Iranian government is struggling to import the raw materials that it needs to manufacture antiviral drugs amid the raging COVID-19 pandemic. These sanctions, as discussed above, have crippled the economy of Iran and prevented the import of health care equipment required to control this pandemic. This has direct effects on the availability and quality of health care facilities which form an essential element of the right to health, thus resulting in a clear violation of this right.

It is important to note that in the case of Iran v. USA the International Court of Justice (ICJ) has held, in its order on provisional measures, that US Sanctions are detrimental to the humanitarian needs and rights of Iranian citizens, and its exemptions do not help with assurances to the contrary.  Instead of adhering to the order, the United States government decided to terminate the 1955 U.S.-Iran Treaty of Amity, which was the basis of the relief granted by the ICJ.  This was announced on the same day in which the ICJ passed the order.

The paradoxical stance of the US Administration

The contradictory stance of the US government is further evident as, despite sanctions being exempt on humanitarian goods, the US Treasury Department had previously prosecuted medical companies for selling small amounts of medical supplies to Iran. While Iran’s dire circumstances have prompted calls from around the world for the United States to roll back its deep economic sanctions on the country, the US has instead imposed new sanctions amid the increasing cases of COVID-19 which will further add to Iran’s economic and diplomatic isolation.

With hospitals overrun and Iranian doctors struggling to procure necessary equipment, the US must be part of the solution rather than part of the problem. A global pandemic requires a global response, not a piecemeal one based on local politics.

 

ABOUT THE AUTHORS

Hetal Doshi is a law student at the National University of Study and Research in Law (NUSRL), Ranchi, India.  She can be reached at hetaldoshi.hvd@gmail.com.

 

Sankalp Udgata is a law student at the National University of Study and Research in Law (NUSRL), Ranchi, India.  He can be reached at sankalp.udgata123@gmail.com.