International Human Rights Weekly News Roundup

by  Pauline Canham and Lauren Ng

 

This week’s stories in focus:

 

Authoritarian police tactics threaten democracy in the US

20UNREST-PORTLAND-VETERAN-videoSixteenByNineJumbo1600-v2The Mayor of Portland, Oregon, has called the strong-arm tactics of federal agents in his city as a “direct threat to democracy” and warns other officials that their cities could be next.  Mayor Ted Wheeler has asked for the agents to be removed, stressing the tactics are “abhorrent” and “are leading to more violence”, rather than quelling it.   Trump has responded by saying local leaders have lost control and he is trying to help.

Portland has seen a wave of protests since the death of George Floyd in Minneapolis in May and rallies have become increasingly violent with clashes between police and protestors escalating in recent days.  Language coming out of the White House has done little to calm the situation, with the Homeland Security Secretary calling protestors “anarchists” and Trump blaming democratic leaders for the chaos.  Federal agents have appeared to snatch people off the streets into unmarked vehicles and detained them without justification.

A video has emerged of a Navy veteran being attacked by camouflaged agents, striking him with batons, which resulted in a broken hand, and pepper spraying him at close range directly into his face, without provocation.   David Steel said he had wanted to talk to the officers about why they were “violating their oath to uphold the constitution” and he was standing still with his hands by his sides when he was attacked.  This can clearly be seen in the video that’s been viewed over 3 million times.

The Oregon Attorney General has sued the federal government for unlawfully detaining protestors, requesting a restraining order to prevent federal agents from making any more arrests.  Ms Rosenblum stated “These tactics must stop”, adding that the tactics used by The Department of Homeland Security, US Marshals Service, US Customs and Border Protection and Federal Protection Service, are preventing people exercising their First Amendment right to protest and are “out of character with the Oregon Way.”  Meanwhile, the mothers of protestors have come out onto the streets to protect their children’s right to protest but linking together to provide a barrier between protestors and federal forces.

President Trump, however, has applauded the actions of officers in Portland, saying they’ve done a “fantastic’ job and threatened to use similar tactics in more liberal democratic cities.

 

1921 Tulsa Race Massacre – a new horizon for US reparations?

Tulsa_dig2Nearly 100 years after one of the most brutal racial events in US history, a test excavation for the mass graves of the Tulsa Race Massacre victims will begin this week.

Between May 31 to June 1 in 1921, a white mob burned Tulsa’s local Greenwood community, a thriving black neighborhood, then known as the “Black Wall Street”, to ashes. Within 24 hours, thousands of Black Americans were displaced from their homes and an estimate of 300 people were killed.

For years, it has remained unknown as to where the victims of the massacre were buried. An investigation was initially initiated in 1991, yet discontinued shortly after. The Tulsa Race Riot Commission’s in 2001 made clear in their recommendations that officials should investigate the location of the graves, but Tulsa failed to comply.

However, due to the unresolved questions surrounding the massacre, Tulsan Mayor G.T. Bynum reopened the investigation in 2018. In December 2019, forensic scientists of the State of Oklahoma Archaeological Survey detected anomalies in the ground that could indicate the existence of two mass burials on city-owned property. The senior researcher of the Oklahoma Archaeological Survey, Scott Hammerstedt, felt confident that this discovery was “something associated with the massacre”. While the test excavation was initially postponed in March due to the Coronavirus pandemic, Bynum announced it will be restarting this week:

“As a city, we are committed to exploring what happened in 1921 through a collective and transparent process – filling gaps in our city’s history and providing healing and justice to our community. In the past 99 years, no other agency or government entity has moved this far into an investigation that will seek truth into what happened in Tulsa in 1921.”

Furthermore, earlier in May this year, Human Rights Watch published a detailed report highlighting how city officials have continued to obstruct rebuilding of the Greenwood area and reject offers of medical and reconstruction aid. In addition, ongoing police brutality in the area have destroyed the prosperity and livelihood of the local community. It is hoped that unearthing this truth will allow the start to an important part of restoring justice for Black Americans – that of reparations.

 

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International Human Rights Weekly News Roundup

by Pauline Canham & Amita Dhiman

 

This week’s stories in focus:

 

BREAKING: Shamima Begum wins the right to return to Britain to fight her citizenship case

The Court of Appeal has ruled that Shamima Begum, who travelled to Syria in 2015 and married a Dutch ISIS recruit, could not make her citizenship case from a Syrian refugee camp.   Human Rights Organisation, Liberty, has welcomed the ruling saying “equal access to justice must apply to everyone”.  But the UK Government hopes to appeal the decision, saying it was “very disappointing”.

US drone strike on Iranian General was unlawful, UN report concludes

CallamardA report by Agnes Callamard, the UN’s Special Rapporteur on extrajudicial and summary executions, has concluded that the US drone strike that killed a senior Iranian General violated international law.  The report states that evidence does not support any justification for the strike that killed Qasem Soleimani in January this year.  In particular, the UN expert said that the US had not provided enough proof that Soleimani’s activities constituted an “imminent threat to life”, and therefore the attack amounted to “arbitrary killing.”

The UN Special Rapporteur went further, calling for greater regulation on the military use of Unmanned Aerial Vehicles (UAVs), warning that the proliferation of UAVs (known as drones) risks destabilising global peace and security.  She also noted that the states using them to fight the ‘war on terror’ currently face no accountability for their deployment.  She proclaimed that the “targeted killing of General Soleimani….is not just a slippery slope.  It is a cliff.”; appealing for the UN Security Council to meet to debate the self-defence claim (the justification most commonly used to carry out drone strikes in counter-terrorism operations).

President Trump ordered the strike on Soleimani in early January, and shortly afterwards, the Pentagon released a statement saying “General Suleimani was actively developing plans to attack American diplomats and service members in Iraq and throughout the region….. This strike was aimed at deterring future Iranian attack plans.”  Professor of International Law at the University of Copenhagen, Kevin Jon Heller, cast doubts on the legality of the strike, commenting “the legality of an attack depends on the immediacy of the threat that it aims to avert”.

Defenders of the use of drones point to their apparent ‘precision’ which they claim reduces the numbers of civilian casualties.  However, the UN expert called this claim “illusory” and the idea of the ‘surgical strike’ a “myth”.  The lack of oversight and the secret nature of the drone program have given rise to a significant underreporting of the harm caused to civilian populations targeted by the ‘war on terror’.

Following the release of the report, the United States hit back, saying Ms Callamard was effectively “giving a pass to terrorists”.  Secretary of State, Mike Pompeo strenuously defended the strike adding that Ms Callamard “gives more cause to distrust UN human rights mechanisms.”

 

Coalition to defend freedom of expression in Lebanon announced

lebanese flag 2A “Coalition to Defend Freedom of Expression in Lebanon”  was announced this week by 14 Lebanese and international organizations . The initiative was prompted by an expanding campaign of repression by the Lebanese Government against the people.

Lebanese authorities launched a crackdown on activists and people who posted defamatory posts against the government during the ‘2015-2019 Anti- government protests’. As many as 60 activists and people were detained and questioned in regard to their social media posts concerning accusations of corruption towards high ranking officials such as the President and reporting on worsening economic and political situation in the country.

The documented cases are proof of mistreatment by prosecution and security agencies as a tool to intimidate and silence voices that were raised against the President. Before any case was transferred to the Court, there were a range of physical and psychological interrogation tactics used to coerce signed pledges that activists would not resort to writing any defamatory content against the government in future. The promises have no legal sanctity since they violate the fundamental right of free speech and expression.

On June 15th this year, the country’s top prosecutor ordered a security agency to investigate social media posts deemed offensive to the president labelling it a move to amend the old Media Laws and bring it in line with today.  “Parliament should urgently bring the media law in line with international law and prioritize the decriminalization of defamation and insults” said the coalition.

Lebanon’s constitution guarantees freedom of expression “within the limits established by law.”  The Lebanese penal code criminalizes defamation against public officials and authorizes imprisonment of up to one year in such cases.  The code also authorizes imprisonment up to two years for insulting the president and up to three years for insulting religious rituals.  These laws, many of them older than the country’s independence, are enforced by prosecutors today.  The country will see a dark future if the laws are not soon amended and implemented in line with international human rights obligations.

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Freedom of expression and sexual orientation: Textualist Singapore vs expansionist India

by Kartikeya Jaiswal and Pranay Modi 

This article was originally posted on Rightsblog.net

Introduction

‘Freedom of expression’ is a fundamental right guaranteed  by the constitutions of several democratic countries. It is an internationally recognised ‘human right’ and finds mention in Article 19 of the Universal Declaration of Human Rights (UDHR) . But while the right exists on paper, its actual extent, in different countries, depends entirely on the interpretation accorded to the words by those jurisdictions.

Sexual orientation and gender identity are pertinent examples here – whether the freedom of expression covers them or not depends entirely on the legal interpretation of ‘expression’.  In certain countries, the constitutional interpretation of this right has enabled the legal recognition of sexual orientation and gender identity as human rights. In others, it has led to the continued criminalisation of sexuality and gender identity

Issue

Recently, the Singapore High Court, while deciding the constitutionality of Section 377A of the Penal Code – having implications on the legalisation of homosexuality – was faced with the question; does freedom of expression include sexual orientation? The court, vide Ong Min Johnson v. Attorney-Generalanswered  in the negative; and its analysis was in stark contrast to the analysis of the Supreme Court of India in Navtej Singh Johar v. Union of India, where the question was answered in the affirmative.

 

Singapore

Section 377A of the Penal Code criminalises ‘acts of gross indecency’ between men in public or private. In Johnson, the question arose:  does Article 14(1)(a) of the Singapore Constitution– which protects the freedom of expression – encompass sexual orientation as well? To answer the question, the Court applied the Tan Cheng Bock framework – a three-pronged method deployed for the interpretation of statutes.

First, the court considered the context in which ‘expression’ was used within the legal code as a whole (para 245). It determined context by noting the marginal note accompanying Article 14, which reads “Freedom of speech, assembly and association:. The absence of the term ‘expression’ from the marginal note, was interpreted as a clear indication that the expression was not a stand-alone right. ‘Expression’ must be read with ‘speech’ and must “necessarily point towards some form of verbal communication”. Thus, ‘expression’ under Article 14(1)(a) protects “freedom of speech encompassing matters of verbal communication of an idea, opinion or belief and not male homosexual acts”(para 255).

Second, the court considered the legislative purpose of enacting the term ‘expression’. It noted that when the constitution was adopted, there was no reference to a free-standing right of expression and ‘expression’ was only used in furtherance of the right to free speech (para 257).

The third prong of the test – comparing purpose with ordinary meaning – only reinforced the court’s interpretation, that ‘expression’ only includes expression in the form of speech. Thus, the court concluded that Article 14(1)(a) does not confer the “right to engage in male homosexual acts as a form of ‘expression’”.

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India

The approach adopted by Justice See Kee Oon of the Singapore High Court, towards the interpretation of Article 14(1)(a), is in stark contrast to the approach adopted by the Supreme Court of India, while interpreting Article 19(1)(a) of the Indian Constitution – which is in pari materia to Article 14(1)(a) of the Singaporean Constitution.

In 2014, the Indian Supreme Court – in a judgement which conferred legal validity to the identity of transgender individuals – had held that Article 19(1)(a) guarantees not just speech, but also thenatural rights inherent in the status of the citizens of a free country”.

This expansion of Article 19(1)(a) allowed the Supreme Court to adopt a natural rights approach in Navtej as well. The court observed that “sexual orientation is one of the many biological phenomena which is natural and inherent” and any law which discriminates on the basis of such an inherent property of identity, would violate Article 19(1)(a) of the Indian Constitution.

 

Analysis

Despite being common law courts, there is a fundamental difference in the way both jurisdictions conferred meaning to the term ‘expression’. These diametrically opposite conclusions are a function of the method of interpretation adopted, rather than any normative opinion on homosexuality.

In Singapore, the court adopted a textualist approach and stuck to the core meaning of ‘expression’, refusing to consider the penumbra of meanings. At the heart of the judgement is the belief that the judicial process simply does not allow for the kind of social progress sought by the petition.

The Indian Court, on the other hand, disregards the fetters of textual limitations and expands the scope of the text. It confers meanings on ‘expression’ found beyond the core and within the penumbra. This expansionist approach – dubbed ‘transformative constitutionalism’ – enables the progression of rights. It displays the willingness of the Indian court to push the envelope and take up the mantle of social progress for itself.

 

Conclusion

Although to decide whether one of these approaches is better than the other is a matter for posterity. But for now, what is clear is that the Singapore High Court is not regressive in its normative morality, but simply that it is strict in its judicial process.

Nevertheless, the implications of this judgment on Singapore’s LGBTQI community – and their human rights – cannot be ignored. While the Singapore High Court has maintained the propriety of the judicial process and the separation of powers by leaving it to the legislature to take the final decision, it has failed to give immediate relief to LGTBQI persons. The continued denial of their human rights is predicated upon the continued persistence of Singaporean peoples’ political right to a disciplined judiciary. In this deadlock, it is incumbent upon the Singaporean Parliament to step in and protect the human rights of Singapore’s LGBTQI community, in line with the international standards of the UDHR and the Yogyakarta Principles.

Even though the Singapore High Court has given adequate reasoning by deeming it fit for the legislature to scrap Section 377A; expanding the scope of ‘freedom of expression’ would have sent a strong message, both domestically and internationally, as the LGBTQI community keep on fighting for their basic human rights.

 

ABOUT THE AUTHORS

KartikeyaKartikeya Jaiswal studied law at Jindal Global Law School in New Delhi, and graduated in August 2019.  He is now advocate practising law in new Delhi.

 

 

PranayPranay Modi studied law at Jindal Global Law School in New Delhi, and after graduating is now a Research Fellow at Vidhi Centre for Legal Policy, New Delhi