George Floyd killing: discriminatory, disproportionate use of force by police undermines rule of law
JENNIFER VENIS, IBA MULTIMEDIA JOURNALIST
The death of George Floyd is the most recent incident to highlight the disproportionate use of force against black people in police custody.
Floyd died on 25 May in Minneapolis, Minnesota, after a police officer, Derek Chauvin, knelt on the back of his neck for eight minutes and 46 seconds. Floyd was motionless after almost six minutes, according to the criminal complaint against Chauvin, and had repeatedly told Chauvin and three assisting officers: ‘I can’t breathe.’ An independent coroner’s report later classified the death as a homicide.
Chauvin was charged in early June with second-degree murder, with the three assisting officers charged with aiding and abetting second-degree murder. All have been fired.
The incident – captured on video – has galvanised major protests, both in the US and internationally.
Nawi Ukabiala, a public international law practitioner and associate at Debevoise & Plimpton, who speaks in a personal capacity, highlights that only fatal incidents of police brutality, if captured on video, typically receive media coverage. ‘However, extensive evidence indicates that brutal acts of torture perpetrated against blacks by law enforcement officers are occurring in the US on a regular basis.’ He notes that even recorded incidents rarely generate accountability.
‘What we can see on the publicly available video recording of George Floyd’s killing clearly amounts to torture and arbitrary killing; two of the most serious violations of international human rights law,’ Nils Melzer, UN Special Rapporteur on Torture, tells Global Insight.
Sarah Cleveland, Co-Vice Chair of the IBA Human Rights Committee and Louis B Henkin Professor of Human and Constitutional Rights at Columbia Law School, notes that under international human rights law, force ‘cannot be used on a suspected criminal who does not pose a serious and imminent threat to the lives or bodily integrity of others.’
According to the US National Institute of Justice, the US has no universal set of rules governing when police officers can or should use force and to what extent.
Minnesota statute justifies deadly force to protect officers or others from ‘great bodily harm,’ to capture someone suspected of a felony involving or threatening deadly force, or a suspect whom the officer ‘believes will cause death or great bodily harm if the apprehension is delayed.’
But the technique Chauvin used isn’t classed as ‘deadly.’ Neck restraints such as those used in the incident in which Floyd died are a ‘non-deadly force option,’ according to the Minneapolis police manual.
And like many before him, Floyd wasn’t accused of a violent crime. For Ukabiala, ‘systematised, targeted enforcement of criminal laws against blacks, often for non-existent or petty offenses, and often with lethal force, succeeds Jim Crow racial segregation laws as a system of social control. The characterisation of blacks as criminals, or as criminally inclined, is fundamental to that system’.
In 2019, a US study using verified data on police killings from 2013–2018 found that roughly one in 1,000 black boys and men are destined to be killed by police, whereas only 39 out of 100,000 white males will suffer the same fate.
Ukabiala says ‘the discriminatory effect of police brutality in the US is sufficient to constitute a violation of the International Convention on the Elimination of All Forms of Racial Discrimination.’
Campaign Zero is a data-informed platform that presents solutions to US police violence. It argues that decades of ‘broken windows policing,’ which involves ‘focus on policing minor crimes and activities... has led to the criminalisation and over-policing of communities of colour and excessive force in otherwise harmless situations.’
In 2015, President Barack Obama’s Task Force on 21st Century Policing published recommendations on reducing violence against black people and improving public safety. But policies like community-orientated policing were abandoned after the 2016 presidential election.
Minneapolis pursued reforms in 2015 and implemented training on implicit bias, de-escalation and crisis intervention. The State adopted tighter use-of-force standards and body cameras. But these measures didn’t prevent Floyd’s death.
According to Mapping Police Violence, in the US 99 per cent of killings by police from 2013–2019 have not resulted in officers being charged with a crime. Further, the doctrine of qualified immunity protects officers from civil suits, unless they violated ‘clearly established’ constitutional rights or Federal law.
For Melzer, ‘any form of impunity for, or leniency towards, such serious misconduct, especially when committed for reasons related to discrimination of any kind, makes a mockery of justice, equality and the rule of law.’
Highlighting failures of reform, groups, including international human rights movement Black Lives Matter call for defunding of the police, with funds redirected to community-led public safety.
Such radical change would be controversial. However, in late May, the US House Judiciary Committee asked the Justice Department to investigate systemic police misconduct and determine whether this amounts to a ‘pattern or practice of unconstitutional conduct.’
The US Justice Department and National Association of Police Organizations both condemned Floyd’s killing but had not at the time of publication responded to Global Insight's requests for comment.
IBAHRI monitors Covid-19 human rights violations with latest e-bulletins
The International Bar Association’s Human Rights Institute (IBAHRI) has launched two new regular e-bulletins, the Covid-19 Human Rights Monitor and the Freedom of Expression Bulletin, in order to monitor the effect the Covid-19 pandemic is having on human rights around the globe. During the Covid-19 crisis, the IBAHRI is ‘committed to continued defence of the rule of law and exposing human rights violations wherever in the world they may occur.’
The Covid-19 Human Rights Monitor is a weekly summary of human rights violations taking place around the world. It is ‘designed to be a key resource for legal professionals and all those interested in defending human rights.’ Each edition covers six topics: gender-based violence and women’s health; LGBTQI+ rights; refugee camps; prisoners and detainees; asylum procedures; and disability rights. The Monitor highlights how measures to stop the spread of Covid-19 have been misused by authorities in order to disregard the citizens' fundamental rights and liberties.
The fortnightly Freedom of Expression Bulletin highlights global trends and current threats to the fundamental right to freedom of expression. The Bulletin monitors cases and situations where this right is violated and provides insight into issues during the current pandemic.
The IBAHRI reinforces that ‘in the climate of responding to the Covid-19 crisis, now more than ever, access to information and the freedom to scrutinise government actions should be permitted.’ Topics covered include: national security and emergency measures; privacy and surveillance; safety of journalists; free speech; and digital rights and internet shutdowns. Each issue provides updates on cases from previous Bulletins, as the IBAHRI strives to emphasise the special importance of freedom of expression during the pandemic and beyond.
To read the latest editions of the Covid-19 Monitor, visit tinyurl.com/HRICovid19Monitor
For the Freedom of Expression Bulletin, visit tinyurl.com/HRIFoEBulletin
Covid-19’s implications for rule of law and media freedom
The IBA’s Human Rights Institute (IBAHRI) has drawn attention to threats posed to the rule of law and media freedom in the context of the Covid-19 pandemic.
In a recent podcast, Rule of law in the time of Covid-19, IBAHRI Director Baroness Helena Kennedy QC, assesses the potential for a detrimental impact on the rule of law, as has already been seen in various countries, given the drastic action states are taking in responding to Covid-19.
Separately, a statement by the High Level Panel of Legal Experts on Media Freedom, to which the IBAHRI acts as Secretariat, recognises the challenges that states face in responding to the pandemic. It urges governments to ensure that if encroachments on press freedom or other human rights are needed, they are limited to what is strictly necessary in the present crisis and revoked afterwards.
The High Level Panel is an independent body convened to advise governments on ways to prevent and reverse abuses of media freedom. It comprises leading lawyers from around the world.
To listen to the podcast, visit tinyurl.com/ROL-cov19
To download the Panel’s statement, visit tinyurl.com/PressStatementCovid
International legal community condemns arrests of pro-democracy figures in Hong Kong
On 20 April, prominent members of the international legal community issued a joint statement denouncing the arrest of 15 pro-democracy figures in Hong Kong. Co-signed by IBA President Horacio Bernardes Neto, IBAHRI Director Baroness Helena Kennedy QC, leaders of the Bar Council of England and Wales, the Bar Human Rights Committee of England and Wales and the International Commission of Jurists, the statement urged Hong Kong authorities to immediately release those arrested and drop all charges. The statement condemned the actions of the authorities as an assault on the freedom of expression and right to assembly in Hong Kong.
The arrests, which took place on 18 April, included lawmakers, party leaders and lawyers who had previously protested the controversial 2019 Extradition Bill. Last year, two of those arrested, Dr Margaret Ng and Martin Lee QC, were jointly awarded the IBA’s Human Rights Award for their lifelong defence of freedom, democracy and the rule of law.
To read the full statement, visit tinyurl.com/HKStatement
IBAHRI writes to Sri Lankan and Samoan governments on rule of law
The IBA’s Human Rights Institute (IBAHRI) has called upon Sri Lanka’s government to abide by due process and uphold the rule of law in the case of Sri Lanka lawyer Hejaaz Hizbullah.
Former state counsel Mr Hizbullah was arbitrarily detained on 14 April for alleged involvement in the 2019 Easter Sunday terrorist attack.
In its open letter, the IBAHRI urges the Sri Lankan government to respect the independence of lawyers and their right to exercise freedom of expression as part of their vital role in holding the government to account.
Separately, the IBAHRI has urged the Samoan Government to reconsider proposed legislation that would alter the court system and subsequently undermine the rule of law and judicial independence in the country.
The draft legislation – in the form of three bills currently before the Samoan Parliament – proposes that the Land and Titles Court be established as a separate court outside the constitutional and legal supervision of the Supreme Court.
If approved, the separation would remove the primacy of the Supreme Court, allowing legal decisions to be made without necessary scrutiny. The proposed bills would also grant the Judicial Services Commission, an unelected executive body, the power to dismiss judges.
To download the letters, visit tinyurl.com/SriLankaHRI and tinyurl.com/SamoaHRI respectively
IBAHRI makes recommendations on ending detention of migrant children to UN Special Rapporteur
The International Bar Association’s Human Rights Institute (IBAHRI) has submitted a report to the United Nations Special Rapporteur on the human rights of migrants, Mr Felipe González Morales, with a view to informing his next report on ending immigration detention of children and seeking adequate reception and care for them. The IBAHRI’s submission was put forward on 30 April 2020 and Mr Gonzáles Morales’ report will be submitted to the UN General Assembly in September. The IBAHRI submission makes 13 main recommendations to UN Member States, addressing different challenges in ending the detention of migrant children.
Globally, the number of accompanied, unaccompanied and separated child migrants has been increasing and accounts for between 40 to 50 per cent of the world refugee population each year. For the vast majority of these children, detention is still a reality and conditions are far from being child-rights compliant.
The IBAHRI submission calls for a clear prohibition of child detention across the world and discrimination among children at a domestic level. A number of good practices are exemplified in the submission that reflect the significant role of civil society, sometimes acting in partnerships with states. However, the IBAHRI report also highlights the numerous challenges preventing migrant children from reaching safe accommodation. Political inaction, insufficient data availability at borders, lack of trained staff to identify children and a dearth of suitable accommodation, all pose problems for children attempting to migrate safely.
Regarding responses to crises that could foreseeably lead to an increase in child migration or cause migrants to be at greater risk, the IBAHRI submission calls upon states to take a number of actions including upholding special protections afforded to child migrants under international law; expanding safe and legal pathways to migration; and ensuring the pretext of a situation of emergency, such as a pandemic, is not used to apply forced return or refoulement in violation of international law.
Read the press release at tinyurl.com/childimmigrationdetention
IBA announces £180k fund to support international frontline legal aid providers
The IBA and its US-based charitable arm, the IBA Foundation, have announced a new funding programme to support frontline legal aid providers across the world that are struggling during the Covid-19 crisis. The two entities have allocated £100,000 and $100,000 respectively.
The IBA’s Group Member firms – which include most of the world’s leading law firms – will work with the IBA to identify frontline legal aid entities in their respective jurisdictions that are assisting victims of domestic violence, child abuse, civil rights violations and employment and housing discrimination to be awarded a portion of the funding.
IBA President Horacio Bernardes Neto commented: ‘The worldwide economic downturn caused by the ongoing pandemic is sadly having a negative impact on charitable contributions.
Our new outreach programme aims to address this potentially catastrophic financial gap and help legal aid entities to continue providing their vital services to those in need.’
‘We are pleased to be partnering with the IBA to provide assistance to frontline legal aid groups at this most critical time,’ said Hansel T Pham, President of the IBA Foundation. ‘The IBA Foundation looks forward to working with IBA Group Member firms to identify and support these worthy legal aid providers.’
To read more, visit tinyurl.com/IBALegalAid
Covid-19: response to pandemic wreaks havoc with rights across Middle East
EMAD MEKAY, IBA MIDDLE EAST CORRESPONDENT, CAIRO
When Roya TV in Jordan aired a report highlighting workers' concerns over the economic impact of the country’s Covid-19 curfew, the channel was expecting peak viewership as the public stayed home. Just hours later, two of its top executives were arrested. This is part of an emerging trend across the Middle East whereby those questioning the official response to the pandemic are penalised and, on occasion, thrown behind bars. The broadcaster had to issue an apologetic statement. The two executives were later released by the country’s military.
A tally of legal measures resulting from Covid-19 produced by the International Center for Not-for-Profit Law and the European Center for Not-for-Profit Law found that most Middle Eastern countries made emergency declarations and took steps that undermine rights and freedoms of expression and assembly. Most governments justify the crackdown on the grounds of avoiding public panic.
In April, Iraq suspended Reuters’ licence for three months over a report that put the number of cases at a higher rate than announced by the authorities. The authorities accused Reuters of endangering public safety and hindering efforts to prevent the spread of the virus.
In the United Arab Emirates, the local press reported that authorities enacted penalties, including imprisoning someone for several years for posting ‘false information’ on social media about the virus for fear of spreading ‘rumours’ or ‘panic among society.’
In Egypt, unfavourable social media posts about Cairo’s crisis management have been criminalised as sedition and authorities encourage Egyptians to refer posts deemed anti-government to police. In early May, Amnesty International documented the arrest of at least 12 individuals, including one journalist, who questioned official statistics in relation to Covid-19 on Facebook.
Authorities in Morocco, Oman and Yemen issued decrees suspending newspaper printing and distribution. Oman later added prohibitions on importing publications from overseas. The measures were promoted as preventing the spread of the virus. Free speech advocates faulted the measure as it aims at limiting the flow of accurate data and debate.
Iran limited social media and expanded censorship over an already restricted media. The New York-based Committee to Protect Journalists (CPJ) reported that the Iranian judiciary ordered local journalists not to report on the Covid-19 death toll.
Several international experts have warned that the pandemic has fuelled the muzzling of free flowing information, energising widespread scepticism over the accuracy of virus data and, in turn, creating more fear and confusion.
‘In some ways the originators or the casus belli of the virus’ global reach has been precisely the lack of openness, transparency and accountability by government,’ says Fionnuala D Ní Aoláin, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. Ní Aoláin told Global Insight that the crackdown on Covid-19 criticism or independent reporting is part of a shrinking space globally for information, rights and for alternative views. ‘We are facing a global health pandemic, but also an epidemic of exceptional powers. We see expansive powers given to the police and military authorities. We see an enormous use of surveillance technology, previously used in counter-terrorism, and we see security situations switched over to the health context.’
Sara Elizabeth Dill, Arab Regional Forum Liaison Officer of the IBA War Crimes Committee, says Jordan has arrested hundreds for violating lockdown restrictions. ‘This does pose a greater risk for spread of the virus when you are putting that many people in closed crowded conditions, where there is likely to be a lack of protective equipment,’ says Dill. ‘We have concerns about due process and human rights because you have the inability of lawyers to meet with their clients face-to-face. Courts are mostly closed or on very restricted procedures during this time. So there’s a question of how long these people are going to be held.’
Dill says that governments are in a difficult position. ‘You have governments, and legislators and rulers making decisions on things that are constantly changing.’
‘You have concerns that with something that’s so easily spread as Covid-19, you’re trying to protect the masses from the few that would seek to disobey the government orders. And so governments are caught in a bind as to what do we enact in terms of legislation? What type of restrictions do we place? How much do we enforce them? And what does that enforcement look like? This is where deterrence and punishment, the age-old criminal justice factors, come into play. You have to protect your citizen while still being mindful of other concerns. This is where human rights almost becomes a hierarchy as we examine how to effectively respond to a pandemic such as this one.’
Ní Aoláin acknowledges the rights of states to adopt some emergency measures. ‘The key point is that it’s not a blank cheque. There are limits to the powers and the exceptions a state can invoke,’ she says. ‘The bottom line is that any measure taken has to be clearly linked to the health challenge.’