June 22, 2017Impunity International Security and Rule of Law Accountability and Access to Justice
Last month the United Kingdom was under the microscope at the Universal Periodic Review – a peer review mechanism that sees each UN Member State’s record scrutinised for its compliance with their international obligations every four years. During the interactive dialogue, 94 States made statements on the UK’s record. Concerns arising from the UK’s counter terrorism measures featured prominently, with Minister Sir Oliver Heald, who led the UK’s delegation, acknowledging that this was a key concern for other States.
Rights Watch (UK) welcomes this focus and shares many of the concerns raised. While the UK has made progress since the last UPR cycle in 2012 on the human rights compliance of some of their counter terrorism measures, the UPR illuminated areas where the UK had regressed. Regrettably, the UK did not take this opportunity to directly address these concerns, sidestepping issues with pressing human rights implications.
Here, we chart three national security and human rights issues raised during the UPR: the UK’s counter extremism strategy, Prevent; the use of lethal force in counter terrorism; and transitional justice mechanisms in Northern Ireland.
Prevent: The UK’s counter extremism strategy
In advance of the interactive dialogue between the UK and UN Member States, Norway, Mexico and the Netherlands submitted questions on the UK’s counter extremism strategy, Prevent, and the UK’s definition of extremism, which sits at the heart of the strategy. Norway explicitly asked the UK whether they were considering revisiting the legislation which gave rise to the ‘Prevent duty’ in light of the human rights concerns that attach to it, while Mexico asked what steps were being taken to address these concerns.
Prevent is one of four prongs of the UK’s counter terrorism strategy. Prevent seeks to pre-empt terrorist attacks by identifying those at risk of being drawn into terrorism, including by ‘intervening to stop people moving…from extremism into terrorist-related activity’. To this end, and as of 2015, ‘specified authorities’ (which includes universities, schools, nurseries and the health sector) are required to identify ‘support for extremist ideas that are part of terrorist ideology’.
While countering violent extremism (CVE) initiatives may give rise to a host of human rights concerns (some of which were raised by a coalition of 58 leading NGOs at the Human Rights Council in response to the UN Secretary General’s ‘Plan of Action to Prevent Violent Extremism’), the UK goes further still; something which elicited concern from other States during the UPR.
First, the UK’s Strategy explicitly targets non-violent extremism. The policy’s very premise – the assumption that extreme views and terrorism sit as two points on a continuum, such that support for extremism is a reliable indicator of future participation in terrorism – has been roundly criticised as theoretically unsound. Moreover, Prevent’s statutory guidance offers little clarity as to what conduct the Government actually seeks to target, defining extremism as ‘active or vocal opposition to fundamental British values’. This broad and ambiguous definition risks capturing a wide spectrum legitimate expression and bringing those who may hold unpalatable or offensive political or religious views, but are not otherwise breaking the law, within the scope of counter terrorism policy. To be clear, while the task set for ‘specified authorities’ under Prevent is to consider vulnerability to becoming a terrorist, actual support for, or association with, ISIS, or any other terrorist group, is a matter for criminal law (under s 13 the Terrorism Act 2000), not Prevent.
A second distinctive, and concerning, feature of the UK’s strategy is the ‘Prevent duty’, referred to by the Norwegian delegation. Established under Section 26 of the Counter-Terrorism and Security Act 2015, the Prevent duty obliges public sector workers, such as teachers, doctors, nurses, to report signs of extremism. This, in the words of the UN Special Rapporteur on promoting human rights while countering terrorism, requires educators to ‘act as watchdogs or intelligence officers’. In this pursuit, public sector works are directed to a list of ‘indictors of vulnerability’, which range from ‘feelings of grievance and injustice’ to ‘being at a transitional time of life’.
The concerns of States are justified. Last year, Rights Watch (UK) published a report ‘Preventing Education: Human Rights and UK Counter-Terrorism Policy in Schools’ which documented the far-reaching human rights implications of the Strategy as applied in education, concluding that it is leaving a generation of young Britons fearful of exercising their rights to freedom of expression, freedom of thought, conscience, and religion, and also implicates their right to education, freedom from discrimination and specific protections afforded under the Convention on the Rights of the Child.
Moreover, Prevent is failing on its own terms. Our report revealed the very many concerns of professionals tasked with implementing the Strategy and the fact that the strategy is alienating the very communities the Government is seeking to engage. Our research was reflected in the conclusion of the recent country report of the UN Special Rapporteur on freedom of association and peaceful assembly, who concluded that Prevent ‘is having the opposite of its intended effect: by dividing, stigmatising and alienating segments of the population, Prevent could end up promoting extremism, rather than countering it.’
Since the introduction of the Prevent duty, the Government have studiously avoided directly engaging with human rights concerns the Strategy gives rise to, though criticism gathers steam. The UPR was no different: the Government avoided answering the specific question on the definition of extremism, simply stating that:
‘..Mexico, Norway and the Netherlands asked questions on the compatibility of our counter-terrorism measures with our human rights obligations. I can be clear that the UK Government continues to believe that its terrorism legislation and measures comply with our international human rights obligations. Legislation is closely scrutinised by the UK Parliament during its passage, and once in force can be kept under scrutiny by Parliament, through Committees such as the Joint Committee on Human Rights.’
As regards the compliance of Prevent with the UK’s international obligations, this response offers little comfort. First, as the Counter-Terrorism and Security Act 2015 travelled through parliament although some consideration was given to the impact of the Prevent duty on free expression in universities (leading to the inclusion of an additional provision in the Act to the effect that, when carrying out its Prevent duty, a provider of higher or further education must have ‘particular regard’ for free speech and academic freedom) the relevance of the strategy to nursery, primary, and secondary education, and the particular impact on children’s rights, went entirely unremarked on. Secondly, the Joint Committee on Human Rights did raise concerns about the Government’s definition of extremism in July of last year, noting, during the course of their ‘Counter Extremism’ Inquiry, that ‘the Government gave (the JCHR) no impression of having a coherent or sufficiently precise definition of either ‘non-violent extremism’ or ‘British values’.
An Independent Review of Prevent
Mexico followed up its question on the definition of extremism with a recommendation calling on the UK to establish ‘an evaluation mechanism of the anti-terrorist strategy that takes into account the observations made by Special Procedures and Treaty Bodies, and that evaluates its human rights implications’. In response, the UK pointed to the Independent Reviewer of terrorism as fulfilling this function.
Of course, a permanent statutory reviewer of terrorism legislation is an indispensible and valuable oversight mechanism. However, the Prevent Strategy falls outside the Independent Reviewer’s statutory mandate. In fact both the former and current Independent Reviewer have drawn attention to this gap, and the ensuing absence of any independent review mechanism for Prevent.
A month previously, and on home soil, the Government made a more implausible claim during a House of Lords debate on the Higher Education and Research Bill. In response to an amendment tabled for debate by Lord Dubs, that would have instituted an independent review of Prevent in Higher Education (Read Rights Watch (UK) and Liberty’s briefing here), the Government stated that HECFE, the statutory body narrowly charged with implementing Prevent and monitoring compliance with the Prevent duty, also fulfilled an independent review function. This response is patently unsatisfactory: a body responsible for enforcing a policy cannot properly be considered its ‘independent’ reviewer, and any broader scrutiny of the strategy and its rights implications fall far outside HECFE’s mandate.
The UPR process, and the Government’s Response, drew attention to a lacuna in independent oversight of the UK’s counter terrorism strategy, which the Government has yet to address. It is clear there is an acute need to establish an Independent Review of Prevent, which examines, amongst other things, the human rights implications of the Strategy, a need emphasised since the UK’s UPR by the UN Special Rapporteur on freedom of association and peaceful assembly, who has become the latest in a long line of commentators to call for an independent review of the Strategy.
The use of lethal force in counter terrorism
A second issue raised during the UK’s UPR was the lawfulness of the UK’s extraterritorial use of lethal force for counter terrorism purposes.
Previously at the Human Rights Council the UK justified its decision not to vote in favour of a 2014 resolution on drones in part on the basis that ‘when (drones) are used in the context of armed conflict the appropriate law is international humanitarian law and the Human Rights Council does not have a mandate to consider this’. This position was rejected by both the UN Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, who emphasised, during the Panel Discussion on drones that the resolution mandated, that the discussion fell ‘squarely within’ the Council’s jurisdiction and, while there would need to be consideration of the applicable legal regime to determine whether international human rights law operated alone or together with international humanitarian law, international human rights law applies both inside and outside armed conflict. In any event, the UPR, which operates under the auspices of the Human Rights Council, has an explicit mandate to address States’ compliance with international humanitarian law and, importantly, the UN Charter – such that it is a valuable (and rare) opportunity for States to raise concerns about another State’s compliance with the international obligations derived from these regimes.
During the UK’s review, Peru recommended that the UK ensure that ‘in the context of the fight against terrorism, that the use of force be in line with the United Nations Charter and international human rights law and with due respect of the necessity and proportionality criteria’.
This recommendation took its cue from the shift in the UK’s interpretation of when it is permissible under international law to use force abroad since their last UPR in 2012. In 2015 the UK carried out a lethal drone strike in Syria, killing British citizen Reyaad Khan, and two others. In the wake of the strike, the Government made a number of statements that indicate there has been a fundamental, and extremely troubling, reinterpretation of the law on the use of lethal force on the part of the UK.
These statements have prompted concerns on a number of grounds. First, they throw into question the UK’s compliance with the UN Charter and customary international law on when it is lawful to resort to force, and suggest that the UK Government may be attempting to reinterpret the limits these regimes impose in order to broaden the circumstances under which unilateral force can be used. While it is generally accepted that a State can lawfully use force against an imminent armed attack, the UK government recently stated that imminence could not be assessed ‘solely on temporal factors’. This was expanded on by the UK Attorney General, who explicitly stated than an attack could be considered ‘imminent’ even if it is not known where or when an attack will take place, or the nature of the attack – mirroring the expansive, and highly controversial, approach of the United States. While the UK Attorney General was at pains to distinguish this interpretation from the discredited Bush era doctrine of pre-emptive self defence (whereby force may be used to pre-empt attacks from materialising), the line appears thin and porous: without knowledge of where, when or what kind of attack will take place, it is difficult to understand how a state can assess and determine that an attack that has moved from being a theoretical possibility to an operational reality.
Secondly, the UK stated that they would not hesitate to execute targeting killings outside of armed conflict, but intimated that, in such circumstances, the law of armed conflict would be viewed to be an ‘important source’ governing the legality of such acts. Yet the law of armed conflict only applies if, as an objective matter, an armed conflict exists. Where an armed conflict does not exist, the UK is bound by international human rights law, as enshrined in treaty and customary international law. The UK has previously been clear on this, stating during the 2014 Panel Discussion on drones at the UN Human Rights Council that:
‘The UK expects other States to act lawfully in accordance with the applicable legal framework including when using RPAS [Remotely Piloted Aircraft Systems] against terrorist targets. If armed RPAS were to be used outside the scope of an armed conflict, their use must be in accordance with international human rights law’.
As the former UN Special Rapporteur on extrajudicial, summary or arbitrary executions noted, the appeal of claiming that the law of war applies is ‘obvious’, as States seek to exploit its more permissive rules for killing than those deriving from human rights law. Attempts to broaden the scope of applicability of the law of armed conflict beyond what international law permits, and to avoid applicable international human rights protections, undermines the rule of law and sets a dangerous precedent, whereby States choose which law they apply, thereby avoiding legal obligations and accountability.
Taking a bird’s eye view, the implications are particularly stark. Eroding long standing constraints on the use of force allows all States to lay claim to a right to use force in significantly expanded circumstances. This risks undermining the central impulse of the UN collective security system, built in the shadow of the Second World War – to maintain international peace and security and limit the unilateral use of force. Steps by the UK to join the US and Israel in reinterpreting these constraints should be a matter of immense concern for all States (whether or not they are allied with the US, Israel and UK) who seek to preserve a system which construes unilateral force as an exception, rather than the norm.
Transitional justice mechanisms in Northern Ireland
Finally, the UPR also saw States question the UK on transitional justice mechanisms in Northern Ireland. As the UN Special Rapporteur on the promotion of truth, justice, reparation recently emphasised ‘it is well understood that the legacy of the past continues to cast a very dark shadow over the present and future’ in Northern Ireland. At the UPR, States emphasised the importance of addressing the past, and the UK faced questions on two issues: i) implementation of the Stormont House Agreement; and ii) the funding of the coronial system.
Turning to the first issue, in December 2014 the UK Government committed, in the form of the Stormont House Agreement, to establishing an overarching transitional justice mechanism to address the legacy of the conflict in Northern Ireland. The Agreement explicitly provides that any approach to dealing with the past must be human rights compliant, uphold the rule of law, acknowledge and address the suffering of victims and survivors, and facilitate the pursuit of justice and information recovery.
During the UPR the United States asked what the status is of plans to establish a Historical Investigations Unit, as provided for by the Stormont House Agreement, and Australia recommended that the UK take measures to implement the Stormont House Agreement. The UK again responded in general terms, stating that they ‘will continue to work with Northern Ireland parties, victims’ groups and other stakeholders to seek a resolution that will allow the Stormont House Agreement bodies to be established’.
In order to implement the Stormont House Agreement, the UK Government must introduce legislation in Westminster. Draft legislation leaked in October 2015 provoked concerns that the government were on course to repeat mistakes of the past, and prompted serious concerns that the mechanisms would not be human rights compliant. This draft bill vested the Secretary of State with a blanket veto on passing information to the independent body conducting investigations into conflict related deaths, and to families and their legal representatives, where they considered information to be ‘sensitive’ or ‘prejudicial’. The draft legislation neglects to define these terms.
This blanket veto designates the Secretary of States as sole arbiter of what information the Government does, or does not, disclose to investigative bodies, jeopardising the independence of these investigations, frustrating their progress and potentially undermining the right of victims’ families to truth and to a remedy. Last year, the UN Special Rapporteur on the promotion of truth, justice, reparation urged the UK government to avoid invoking national security as a blanket term to prevent disclosure of ‘sensitive information’ and to shield individuals or practices from public scrutiny. This, he said, would fuel mistrust and suspicion.
In the 20 years since the Good Friday Agreement, numerous ad-hoc legacy mechanisms have been established, the success of which has been thwarted by a lack of independence and access to information. In order to avoid replicating the failures of these mechanisms, and in the interests of fulfilling the UK’s international obligations, it is imperative that the Stormont House mechanisms mediate the disclosure of information in a manner which ensures disclosure practices are human rights (and constitutionally) compliant.
To this end, Rights Watch (UK), in coalition with civil society and academics in Northern Ireland, developed a model for adjudicating disclosure that draws on mechanisms used elsewhere in the United Kingdom in national security litigation. We welcome the commitment the UK expressed during the UPR to working with civil society and victims, and hope that the legislation introduced reflects this commitment. Specifically, any exemptions to disclosure must be clearly and narrowly defined and shown to be necessary. In the interests of full implementation of the Stormont House Agreement and to responding to concerns raised by the Special Rapporteur, we invite the Government to work with civil society to develop a model that is human rights compliant.
A second issue raised during the UPR was the funding of the coronial system, with Switzerland directly recommending that the UK ‘increase the necessary resources to the service of the Coroner to allow him to carry out impartial, swift and effective investigations on all the deaths linked to the conflict in Northern Ireland’.
The completion of legacy inquests is staggeringly overdue and places the UK in direct breach of its obligations under Article 2 of the European Convention on Human Rights. There are currently 54 outstanding legacy inquest cases in Northern Ireland, 22 of which are now over 40 years old. Cases have now all but ground to a halt, given that the UK has failed to adequately resource the coronial system. This is despite the Chief Justice of Northern Ireland proposing a comprehensive system to deal with these cases within five years in the form of a Legacy Inquest Unit, and despite the Chief Justice having pleaded with the government to provide him with the necessary resources. It is imperative that the Government heed Switzerland’s recommendation, and provide the necessary funding to establish the Legacy Inquest Unit.
The UK’s Universal Periodic Review saw a number of States raise concerns about the human rights compliance of the UK’s counter terrorism measures. While we welcome the UK’s statement that their strong commitment to human rights is unchanged since the inception of the UN, and Minister Heald’s confidence that ‘whatever the outcome of the Election…it will not change in the future’ (an assurance sharply needed given the Prime Minister’s promise, just days before the election, to ‘change’ any human rights laws which might limit her ability to institute new counter terrorism measures), it is disappointing that the UK failed to substantively engage with a number of timely and well-founded questions and recommendations.
The UK has until September session of the Human Rights Council to examine and respond to their UPR recommendations, and identify which they have decided to accept, or reject. We urge the UK to take this time to reflect thoroughly, and directly, on the concerns raised in Geneva. This will, in part, be the litmus test of the Government’s stated ‘deep commitment to the success of the Universal Periodic Review as it…promotes the continual improvement of human rights on the ground’. If this is merely an empty platitude the credibility of process as a whole, and the UK’s stake in it, is diminished.
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