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Home Posts tagged "Torture"

Look before you leap: the 2019 extradition bill amendments in light of Hong Kong’s international human rights obligations

Published on July 25, 2019        Author: 

On the first day of July, Hong Kong celebrates Establishment Day, which commemorates the 1997 transfer of sovereignty over Hong Kong from the United Kingdom to the People’s Republic of China. Establishment Day for Hongkongers is customarily accompanied by political protests. The widely reported 2019 protests are the direct result of a proposed amendment to the Fugitive Offenders Ordinance (‘FOO’). The proposed amendment, if passed, would open up the possibility of extradition to mainland China.  Although the proposed amendment was declared “dead” by Hong Kong’s Chief Executive, Carrie Lam, there is real possibility that, at one point or another, the bill will be reincarnated since under Hong Kong law a bill can be suspended or withdrawn and it is not clear that the declaration declaring it dead does either of these. As a result, people have kept pouring into the streets calling for Carrie Lam to step down, making the issue of continuing relevance.

One major point of contention of the proposal concerns the protection of human rights of those subject to transfer to China. NGOs such as Amnesty International and Human Rights Watch point out China’s deplorable human rights protection. While the PRC’s poor human rights track record has been documented extensively, in this contribution I wish to clarify how the amendment bill could result in a situation in which Hong Kong incurs responsibility under international human rights law – in particular article 7 ICCPR – when extraditing persons to the PRC. I do so by first discussing the proposed amendments to the FOO. Second, by explaining the international human rights standards that govern extradition and by which Hong Kong is bound (mainly the torture prohibition), I show how the proposal lacks the safeguards necessary to ensure adequate protection against torture and inhuman and degrading treatment.

Proposed amendments to the Fugitive Offenders Ordinance

The government’s justification for tabling the FOO amendment proposal lies in a brutal 2018 murder case in which a Hong Kong man killed his girlfriend while vacationing in Taiwan and fled back to Hong Kong. The Taiwanese authorities, quick to connect the dots, issued an extradition request to Hong Kong, but received no reply. The absence of action on the part Hong Kong can be explained by two alleged loopholes in the FOO: Read the rest of this entry…

 

Liability of an Assisting Army for Detainee Abuse by Local Forces: The Danish High Court Judgment in Green Desert

Published on January 24, 2019        Author:  and

This comment sets out to discuss the judgment of the Danish High Court (Eastern Division) in what is known as the Iraq or Green Desert Case (B344808J – HBJ). The judgment, delivered in June 2018 and available in Danish only, has received limited attention outside Denmark. It is significant in that it establishes liability for Danish forces for ill-treatment of Iraqi detainees by Iraqi security forces, in circumstances in which Danish forces were found not to have taken part in the arrests and subsequent abuse of detainees, nor to have exercised command over Iraqi forces. Danish forces had only ‘coordinating authority’ which did not permit the issuing of orders to Iraqi forces. Liability was nonetheless established on the basis that, at the time of the decision to take part in this joint military operation (‘Operation Green Desert’) in November 2004, the Ministry of Defence (MoD), the Defence Command or the Danish Battalion should have known that there was ‘a real risk that persons detained during the operation would be subject to inhuman treatment in Iraqi custody during the further investigation’ (810-11). The MoD has appealed the decision, but at the time of writing the Supreme Court was yet to schedule a hearing date.

The claimants had submitted that, in light of Article 3 ECHR, the MoD was obliged to conduct a new independent investigation, but the Court rejected the applicant’s request, arguing that such an investigation was not likely to bring about relevant new information.

Taking into account the nature of the abuses and the fact that these were not perpetrated by Danish forces, the Court found that the compensation should be set at 30,000 DKK (appr. 4,000 EUR) each for 18 of the 23 claimants (5 claimants were not awarded compensation).

Having set out key aspects of the judgment, we examine if the judgment is likely to have ramifications for how Denmark will approach joint military operations in Iraq and elsewhere in the future. We also highlight some parallels with civil proceedings in the UK arising from the Iraq War. Read the rest of this entry…

 

Right of Access to a Court in Civil Claims for Torture Committed Abroad: The European Court Grand Chamber Decision in Naït-Liman

Published on April 3, 2018        Author: 

The Grand Chamber of the European Court of Human Rights has announced its judgment in the case of Naït-Liman v Switzerland, confirming that the refusal of the Swiss courts to examine a refugee’s civil claim for torture in Tunisia was not a violation of Article 6 § 1 of the European Convention on Human Rights. The decision addresses the concepts of forum of necessity and universal civil jurisdiction, and has important implications for civil claims arising out of wrongful acts that have taken place abroad.

Initial Proceedings

In April 1992, Tunisian national and political activist Abdennacer Naït-Liman was arrested in Italy and flown to Tunis, where he was handed over to members of the Tunisian authorities. Naït-Liman subsequently alleged that on the orders of the then Minister of the Interior, Abdallah Kallel, he was detained for 40 days and brutally tortured with bats, electric shocks, and suspension. He escaped Tunisia in 1993 and travelled to Switzerland with his wife and children, where he was granted refugee status in 1995 and Swiss nationality in 2007.

Naït-Liman learned on 14 February 2001 that Abdallah Kallel was in Switzerland receiving treatment at a hospital, and filed a criminal complaint against him. Kallel was, however, able to leave Switzerland before he was apprehended by the Swiss authorities. Read the rest of this entry…

 

Torture in Libya and Questions of EU Member State Complicity

Published on January 11, 2018        Author: 

Amnesty International has reported that ‘tens of thousands’ of refugees and migrants are being subject to torture and other human rights abuses at the hands of Libyan state officials and non-state actors operating in, and out of, Libya (the full report can be accessed here). The publication of the report has led to allegations that the European Union (EU) is complicit in torture. One finding of the report is that ‘EU member states are and have been well aware of the widespread human rights violations and abuses suffered by refugees and migrants in Libya’ (p. 56). Amnesty International has claimed that EU states ‘are complicit’ in torture. Whether the complicity spoken of can trigger the responsibility of these states under international law is implied, but far from clear.

There are many tangents to questions of ‘European complicity’ in the torture of Libyan refugees and migrants. For example, issues regarding the obligation of non-refoulement (p. 53 of report), or the extraterritorial application of human rights obligations (pp. 54-56) (for insights on these particular matters see Gauci and Jackson respectively). The following post will briefly analyse the applicable secondary rules relating to how EU states could be held responsible for complicity in torture under general international law in light of the facts contained in the Amnesty report. Read the rest of this entry…

 

Comment on Paposhvili v Belgium and the Temporal Scope of Risk Assessment

Published on February 21, 2017        Author: 

On 13 December 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered a significant ruling in Paposhvili v Belgium, App. No. 41738/10, correcting the narrow approach to Article 3 medical removal cases taken in D v United Kingdom, App. No. 30240/96 (2 May 1997) and extended in cases such as N v United Kingdom, App. No. 26565/05 (27 May 2008). These cases established that a breach of Article 3 (sending an applicant to a real risk of torture or inhuman and degrading treatment) would only be found in the most exceptional circumstances, namely where there were compelling humanitarian considerations such as an applicant being critically ill and facing mental and physical suffering and hastened death upon removal. The Paposhvili judgment expands the application of Article 3 in medical cases and raises interesting issues about our broader understanding of prospective risk assessments in other types of subsidiary protection/complementary protection and refugee cases.

The applicant, a Georgian national facing removal due to criminal activity in Belgium, suffered from leukaemia and recurrent tuberculosis which had caused lung disease. He claimed that he would be unable to access adequate medical treatment in Georgia and was therefore at risk of ill-treatment and accelerated death if he were expelled. Indeed, medical evidence accepted by the Court indicated that he would die within 6 months of his treatment being discontinued ([195]).

Although Mr Paposhvili died while his Grand Chamber hearing was pending, the ECtHR examined his complaint due to its wider impact on cases involving aliens who are seriously ill and facing removal. The ECtHR “clarified” its jurisprudence in relation to that group of people, noting that the case law since N v United Kingdom had been impermissibly narrow and “deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of [Article 3]” ([181]–[182]). While maintaining the language of “exceptional cases” from D, the ECtHR expanded that category to encompass:

situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. ([183], emphasis added)

Dr Lourdes Peroni and Steve Peers have noted that the significance of this case is the ruling that access to “sufficient and appropriate” medical care must be available in reality, not merely in theory. The submissions of the Ghent University Human Rights Centre as intervening party provided the ECtHR with an excellent platform from which to set out procedural obligations and evidentiary factors to guide the assessment of risk. The ECtHR held at [190]–[191] that the “authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State” and :

“where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned…the returning State must obtain individual and sufficient assurances from the receiving State…”. Read the rest of this entry…

 
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