HK Police Human Rights Failure
Updated: May 12, 2020
This opinion piece was originally published in SCMP on 14 March, 2020 under the title:
Hong Kong protesters are human rights defenders, not rioters.
The writer, Caitlin E. Schultz is a writer and human rights advocate in Hong Kong. A U.S. lawyer with an LL.M. in international legal studies from NYU School of Law, she has experience teaching comparative law in China, conducting research for a Chinese legal services provider, and performing international advocacy on a range of human rights issues.
On Monday (9 March, 2020), at the 43rd session of the United Nations Human Rights Council in Geneva, Hong Kong’s Deputy Police Commissioner Oscar Kwok defended the force against credible allegations of widespread human rights abuses.
In his highly-selective rendering of events, Kwok failed to acknowledge that police are obligated to uphold human rights in the execution of their duties, and he further accused Hong Kong (HK) citizens of using violence to “extort” their demands from the government.
The five demands are not extortion nor a pipedream for a HK utopia, but a baseline test of government legitimacy. They are the basic and expected responsibility of a government, and the fact that only one was (reluctantly) met demonstrates the illegitimacy of the HK authorities’ claim to govern the region and uphold their legal responsibilities to citizens.
In fact, the Human Rights Committee – in its concluding observations to the HKSAR’s periodic reviews in 1999, 2006, and 2013 under the International Covenant on Civil and Political Rights (ICCPR) – has repeatedly called for the reforms echoed in protesters’ demands.
With HK’s next ICCPR review imminent, authorities have no leg to stand on when they use police as their primary weapon to criminalise the exercise of guaranteed human rights and arrest those asking for what the [UN] Committee has consistently requested of the HKSAR authorities for over a decade.
The first demand, withdrawal of the now-axed extradition bill, is rooted in a defence of human rights, including freedom from arbitrary detention and torture; freedom of political speech, expression, and opinion, and upholding international treaties including the Joint Declaration. And that is precisely what defence of human rights entails: taking broad, universal standards and meaningfully applying them in a specific, local context.
The demand for amnesty for arrested protesters is a concept deeply rooted in fundamental notions of justice, fairness, rule of law, and public participation in governance. As the University of Hong Kong Centre for Comparative and Public Law wrote in its preliminary discussion paper on the subject, amnesty is not contrary to the rule of law and may be warranted in these extraordinary times.
Contrary to Kwok’s baffling characterisation on Monday of the fundamental role of police to prosecute all crimes regardless of circumstances, police are responsible for making political and social judgment calls on which allegations of crime to investigate. Prosecutors, likewise, only move forward with cases in which prosecution is deemed to be in the best interest of society.
In HK, with more than 7,000 arrested and mass arrests continuing even after a pause in street clashes, the situation is out of control such that an extraordinary solution like amnesty may be warranted to uphold fundamental human rights principles.
The other three demands are not only calling for internationally guaranteed human rights to be upheld but also directly echo the Human Rights Committee’s prior reviews of the human rights situation in HK.
Specifically, the Committee has called on the HKSAR government, under the ICCPR, to reform the Public Order Ordinance (POO), to implement a fully independent mechanism for complaints against the police, and to institute dual universal suffrage.
Withdrawing the designation of “riot” is directly related to freedom of assembly and judicial independence in Hong Kong. In 1999, the Committee called out the POO for not properly ensuring freedom of assembly in line with the guarantees of the ICCPR. The HKSAR government attempted to dodge this requirement back then by stating that the POO had never been used to deny a demonstration.
But the Committee did not buy that excuse; the fact that the POO could be applied to restrict peaceful assembly was enough to call for reform of the POO in 1999.
In 2013, the legal framework had not changed, and this time there were restrictions in practice: “disorder in public places” and “unlawful assembly” under the prior permission scheme had been used to restrict protected rights, and authorities had used to the law as a basis to arrest political protesters.
The Committee again called for the POO to be reformed in 2013. It is notable that these reviews were conducted prior to the 2014 Umbrella Movement and the 2016 Fishball Revolution, and therefore prior to the 2018 judicial ruling in activist Edward Leung’s case on what constitutes a riot.
In this way, the second demand not only calls for HK’s ICCPR obligations to be fulfilled, but it also advances this goal in a locally-specific context.
The calls for an independent investigation into police use of force are firmly backed by international law and by the Human Rights Committee. In 1999, the Committee found that the Independent Police Complaints Council (IPCC) was not structured for “proper and effective” investigations against the police.
The [UN] Committee pointed out that the investigations are “still in the hands of the police themselves, which undermines the credibility of these investigations.” In 2006, the Committee was likewise not impressed with IPCC and Complaints Against Police Office (CAPO), repeating that the investigations are not independent and calling for a mechanism that produces decisions which are binding on relevant authorities.
By 2013, the [UN] Committee was evidently alarmed by reports of excessive use of force. The Committee referenced a set of international guidelines, the United Nations Principles on the Use of Force and Firearms by Law Enforcement Officials, and it expressed concern about the use of pepper spray against political demonstrators.
But the [UN] Committee’s criticism did not end there. It pointed out that the IPCC members are appointed by the Chief Executive (CE), and that a “fully independent mechanism” for police complaints against inappropriate use force “or other abuse of power” is necessary.
Universal suffrage is a fundamental international human right. In 1999, the Committee noted that the electoral system for HK’s Legislative Council (LegCo) does not comply with article 25 of the Covenant, which states that every citizen must have the right and opportunity “to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage…”.
In 2006, the call was repeated with the additional suggestion that the Basic Law on elections should be amended to comply with the ICCPR. This is notable because the HKSAR authorities like to focus on compliance with the Basic Law, but often the Basic Law does not conform with international standards.
In 2013, the [UN] Committee wrote at length about “universal and equal suffrage” for the 2017 CE elections and the 2020 LegCo elections. The Committee noted that authorities had indicated these voting rights may be granted, but that no “clear plan” had been presented to ensure citizens would have both this right to vote and to stand for election. Further, the Committee stated that this matter should be a “priority for all future elections.”
Hongkongers as rights defenders
In 2020, the Human Rights Committee will continue to play this broken record to the HKSAR government, certainly with added calls for change backed by evidence amassed during not only the current wave of demonstrations but also the numerous other significant violations that occurred in the intervening period.
In fact, HK authorities recently submitted their official report for the upcoming ICCPR review, and it glosses over each of the [UN] Committee’s concerns in a gaslighting manner intimately familiar to HKers, not even mentioning the ongoing protests.
In his speech on Monday at the Human Rights Council, Kwok failed to speak to the issue of human rights at all. Instead, he pointed to isolated acts of violence by protesters as a reason members of the resistance cannot be considered human rights defenders.
This line, too, echoes Beijing’s mind-bending logic repeated at the UN, publicly objecting to the term “human rights defenders” by arguing that individuals cannot hide behind that label to escape the consequences of breaking the law. HK authorities likewise showcase their belief that defending human rights is illegal.
For those who insist on addressing the violent acts of some, understand that the entire legal system is designed to assess the culpability and reasonable punishment for these actors, and the HK government is using that system to its fullest extent.
Yet who is the HK government accountable to, as it ignores its ICCPR obligations for 20 years and counting? Systemic violence is also violence, just the same.
Caitlin E. Schultz
Further reading: See our blog about systemic violence against HK people.
Kwok's statement: https://youtu.be/yuSRq9i9Ay4
Update: 28 April 2020, RFA, Rights group details litany of Police violence, abuses during Hong Kong protests
UPDATE: Here's an interview with Alan Leong, lawmaker and Chairman of Hong Kong's Civic Party about how HK has become CHINA'S newest POLICE STATE
UPDATE: 12 May 2020, HK's Police chief has acknowledged that the treatment of reporters during protests on Sunday (10 May) was “undesirable” and that officers “should have been more professional".