The law

Background

At its meeting on 8th January 2020, members of the All-Party Parliamentary Group on Hong Kong agreed that the Group should conduct an inquiry into the extent to which police tactics in relation to those providing humanitarian aid to protesters in Hong Kong might constitute breaches of fundamental principles of human rights law.

Scope

The central question this inquiry has been set up to answer is whether the Hong Kong police in their treatment of humanitarian aid workers and by extension equipment associated with the provision of aid, have broken international human rights law and conventions.

In examining this question, Members of the inquiry will pay particular regard to the actions of the police force in relation to international humanitarian principles and law, international and domestic human rights law, and the Sino-British Joint Declaration.

 

i. Humanitarian Principles

International humanitarian law enshrines several fundamental principles that should be considered in the scope of this inquiry when assessing the response of the Hong Kong police force in dealing with humanitarian aid workers. This includes: the principle of humanity, the principle of proportionality, the principle of necessity, and the principle of distinction.[1]
 

In this light, Members of the inquiry will consider whether the police officers treated humanitarian aid workers humanely; whether the actions of the police officers were proportional; whether the police officers made a distinction between those they considered ‘combatants’ and of a threat to public order and humanitarian aid workers; and whether the use of force by the police officers was necessary.
 

Care for the wounded and the sick and the avoidance of targeting humanitarian workers in conflict zones is well established in the Geneva Conventions relating to the protection of the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. Although Hong Kong is not a warzone, the APPG will be considering whether the actions of the Hong Kong Police Force breached the spirit, or the letter of humanitarian law enshrined within the protocol.
 

Of particular relevance is Article 11 of the Geneva Accords (Protocol II) on the protection of medical units and transports which states that:
 

Medical units and transports must at all times:

1) be respected,
 

2) be protected,

3) not be the object of attack.’[2]

Members of the inquiry will consider whether the treatment of humanitarian aid workers by the Hong Kong police violated either the spirit or the letter of Article 11 of the Geneva Convention (Protocol II) which guarantees the protection and respect of medical units.

 

[1] https://gsdrc.org/topic-guides/international-legal-frameworks-for-humanitarian-action/concepts/overview-of-international-humanitarian-law/

[2]  https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/475

ii. International Human Rights law

International human rights law is laid out most clearly in the Universal Declaration on Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The ICCPR and ICESCR have both been ratified by the Hong Kong government, and are protected through Hong Kong’s Basic Law which states that:

The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong  shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.’[3]

The Hong Kong Bill of Rights Ordinance (BORO) (Cap. 383) incorporates these constitutional commitments into domestic legislation.

In the specific scope of the inquiry, Members hope to consider whether the Hong Kong Police Force violated the ICCPR, ICESCR, and Hong Kong’s own Bill of Rights in their treatment of humanitarian aid workers.

In particular, the rights which will be the focus of the inquiry are:

ICCPR

Article 9 of the ICCPR is clear that no state should subject individuals to arbitrary detention:

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.’[4]

This right is incorporated as well into Hong Kong’s own Bill of Rights; Article 5 guarantees the liberty and security of person stating that:

'(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.’[5]

Similarly, Article 10 of the ICCPR outlines that those detained should be treated with dignity and respect:

'1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.’[6]

Articles 21 and 22 of the ICCPR outline the rights to freedom of peaceful assembly and association. Article 21 states that:

'The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.’

Article 22 states that:

'1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

 

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.’

Articles 5, 6, 17, 18 of the BORO incorporate these rights into domestic legislation.

ICESCR

The UDHR guarantees a right to medical care under Article 25:

'(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.’[7]

Article 12 of ICESCR not only recognises the right of everyone to the highest standard of mental and physical health but to conditions which assures medical attention in the event of sickness and injury:

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.’[8]

With regard to the scope of this inquiry, Members will examine whether the Hong Kong police in detaining humanitarian aid workers infringed on the rights of the protesters and others in need of medical assistance under Article 12 of ICESCR and Article 25 of the UDHR to receive the highest possible standard of physical and mental health. They will also assess whether the police hindered access to medical attention by their words and conduct, including any practices of intimidation and surveillance that exacerbated the breakdown in trust in public institutions.

 

[3] https://www.basiclaw.gov.hk/en/basiclawtext/images/basiclaw_full_text_en.pdf

[4] https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

[5] https://www.elegislation.gov.hk/hk/cap383

[6] https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

[7] https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf

[8] https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx

 

iii. The Sino-British Joint Declaration

The Sino-British Joint Declaration, which remains an international treaty lodged at the United Nations, not only guarantees that Hong Kong continues to enjoy long-established freedoms and the rule of law but includes a commitment to follow the ICCPR and ICESCR:

'The provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall remain in force.’[9]

Furthermore, it states that:

'The current social and economic systems in Hong Kong will remain unchanged, and so will the life-style. Rights and freedoms, including those of the person, of speech, of the press, of assembly, of association, of travel, of movement, of correspondence, of strike, of choice of occupation, of academic research and of religious belief will be ensured by law in the Hong Kong Special Administrative Region. Private property, ownership of enterprises, legitimate right of inheritance and foreign investment will be protected by law.’

A key question that Members will consider is whether the actions of the Hong Kong police in dealing with humanitarian aid workers that infringed any of the civil, political, economic, social, or cultural rights of Hongkongers should be considered a breach of the rights in the Joint Declaration, and, if so, how the British Government ought to respond.

[9] https://www.refworld.org/docid/3ae6b525c.html

 

Summary

In the context of the above principles, the questions about which we invite evidence include, but are not limited to, the following:

In relation to humanitarian principles:
 

  1. Did the police officers treat humanitarian aid workers humanely?

  2. Were the actions of the police officers proportional to the threat posed by medical and humanitarian workers?

  3. Did Hong Kong police officers make a distinction between those they considered ‘combatants’ and of a threat to public order and humanitarian aid workers?

  4. Was the use of any force by the police officers necessary?

  5. Did the actions of the Hong Kong police violate the spirit or letter of Article 11 of the Geneva Convention (Protocol II) which guarantees the protection and respect of medical units?
     

In relation to international human rights law:

  1. Did the actions of the Hong Kong police in dealing with humanitarian aid workers infringe on any of the civil, political, economic, social, or cultural rights of Hongkongers as outlined in the international covenants and committed to in both Hong Kong Basic Law and the Joint Declaration? 

  2. Did the Hong Kong police violate the International Covenant on Civil and Political Rights and Hong Kong’s own Bill of Rights when they arrested humanitarian aid workers?

  3. Did the Hong Kong police violate the International Covenant on Civil and Political Rights and Hong Kong’s own Bill of Rights by violating the rights of the humanitarian aid workers when they detained them arbitrarily?

  4. Did Hong Kong police deny protesters and other Hongkongers vital medical treatment and in the process, did they violate the right of protesters to humane treatment?
     

In relation to the Sino-British Joint Declaration and Hong Kong’s Basic Law:
 

  1. Do the actions of the Hong Kong Police Force constitute a breach of the Sino-British Joint Declaration?

Please find our evidence submission page here.

CONTACT 

ADDRESS

Hong Kong Inquiry

c/o The Whitehouse Consultancy Ltd

10 Polperro Mews,

London SE11 4TY

 

www.whitehouseconsulting.co.uk

+44 (0)20 7463 0690