ABSTRACT

Over more than two years, the territory of Hong Kong has faced a major political crisis with an unprecedented wave of public protests. In response to initially peaceful gatherings, the police deployed water cannon and fired lesslethal projectiles and huge quantities of tear gas, often indiscriminately, leaving hundreds of demonstrators and bystanders injured. Without doubt, the European Union (EU) cannot stand by idly, but has to act as a credible and potent human rights advocate beyond its own borders. In resolutions adopted in 2020 and 2021, the European Parliament called upon EU members to initiate proceedings against China before the International Court of Justice for its violations of fundamental human rights. This contribution explores the circumstances, limits and constraints under which such proceedings could be brought against China, in particular for breaches of the International Covenant on Civil and Political Rights. Most importantly, China itself has never ratified the Covenant, but its applicability on the territory of Hong Kong is guaranteed indirectly by the Joint Declaration of 1984 and the Hong Kong Basic Law. It is of utmost importance for the European Parliament to base its arguments on solid legal grounds in order to guarantee its credibility when exerting pressure on the Chinese government. Since the legal hurdles, as will be shown, are almost unsurmountable, the contribution also considers alternative avenues to accountability before the Court, such as imposing sanctions against Hong Kong and Chinese state officials under the EU Global Human Rights Sanctions Regime.

INTRODUCTION

Over the course of several years, Hong Kong faced a major political crisis with an unprecedented wave of public protests and mass demonstrations. In response to initially peaceful gatherings, police forces reacted violently, using water cannon and firing kinetic projectiles and huge quantities of tear gas, often indiscriminately, leaving hundreds if not thousands injured. The actions of the authorities have been well documented by the media, non-governmental organisations (NGOs) and states, as well as by United Nations (UN) special procedures. The nature and extent of the repression transformed peaceful protests into violent upheaval, adding to the Special Administrative Region’s political turmoil.

The Introduction discusses key terms and concepts in the protection of civilians – ‘civilian’ and ‘protection’ in particular – while illustrating their unsettled and complex character. Key moments in history in international law, policy, and practice over the last century and a half are also considered. Key actors in the protection of civilians are identified setting the scene for the more detailed assessment of their roles of responsibilities in the remainder of the book.

With respect to the protection of civilians, the African Union has largely focused on elaborating guidelines for its own peacekeeping operations. ‘Draft’ Guidelines were concluded in 2010 and published in 2012. Protection is organised into four ‘tiers’: protection through political process; physical protection; rights-based protection; and establishing a secure environment. These ‘tiers’ are broadly similar to the structure of the UN’s Operational Concept of the time. Practice in protecting civilians has been mixed.

The European Union (EU) does not have a single or comprehensive policy document on the protection of civilians. Rather, its interest and involvement in PoC are reflected across a number of standards and policy documents. Its Concept on Protection of Civilians in EU-led Military Operations was elaborated in 2015. When IHL does not apply to EU action, the Union primarily looks towards human rights law as the appropriate standard for the conduct of EU military operations.

Many commentators argue that the definition of a refugee in the 1951 Convention is too narrow insofar as it does not encompass all people fleeing acute situations of violence or danger, such as armed conflicts or natural disasters. To overcome this, some States interpret broadly the persecution grounds of the refugee definition under that Convention. Regional instruments adopting a broader refugee definition have also been adopted, such the 1969 Organisation of African Unity (OAU) Convention. This chapter explores how those seeking asylum in another State can be better protected.

Switzerland has a long humanitarian tradition and has been strongly supportive of many initiatives to protect civilians, especially in its central role in the development of international humanitarian law (IHL). It was the first State to conclude a dedicated policy document on PoC, in 2009.

International human rights law applies at all times to protect civilians, even though the status of civilian does not exist in the same way that it does under international humanitarian law (IHL). The law binds primarily States, which become party to human rights treaties; they are also bound by rules of customary human rights law. But the duty to respect fundamental human rights also applies to international organisations, including the United Nations, and arguably also to armed groups and corporate entities, as the chapter describes. The human rights duty to investigate suspicious deaths is also considered.

The role of the UN Security Council in the protection of civilians has evolved significantly over the last twenty-five years. This chapter describes how civilian protection has become not only a mandate for UN peacekeeping but also the grounds for Council authorisation of military action. The chapter also describes the difference (and overlap) between the protection of civilians and the doctrine of Responsibility to Protect (R2P). It also touches on the controversial issue of unilateral humanitarian intervention as a means to protect civilians.

Medical personnel are granted special protection under international humanitarian law (IHL). Military medics in an international armed conflict are non-combatants, not civilians, while civilian medical personnel are protected first and foremost as civilians. There is also specific protection afforded to other humanitarian personnel engaged in impartial humanitarian action. Attacking medical personnel (or medical facilities) or attacking humanitarian personnel engaged in their duties during a situation of armed conflict is a war crime, as the chapter explains.

To conclude, the protection of civilians has become a well-established concept consisting of international law, policies, and practices. The legal framework, notably the content and form of international humanitarian law (IHL), human rights law, disarmament law, and refugee law, offers protection to civilians, particularly in situations of armed conflict. At the level of jus ad bellum and the primary role of the United Nations (UN) Security Council, the last two decades have witnessed a higher priority being accorded to the protection of civilians. That violations of IHL and especially attacks against civilians or indiscriminate attacks constitute a threat to international peace and security, as that term is understood in Chapter VII of the UN Charter, is a major normative shift.

India, the world’s most populous democracy, has, like Brazil, been sceptical about international efforts to protect civilians. India does not have a formal national strategy or policy on the protection of civilians. The issue is, though, of particular concern to India owing to insurgencies within its own borders and the highly politically sensitive issue of Kashmir. India’s stated position is that the protection of civilians is the primary responsibility of national governments.

Norway has been at the forefront of several major initiatives to protect civilians. It hosted the diplomatic conference in September 1997 that adopted the Anti-Personnel Mine Ban Convention, and led the elaboration of the Convention on Cluster Munitions in 2008. The Safe Schools Declaration is a joint initiative led by Norway and Argentina and endorsed by governments at the Oslo Conference on Safe Schools in 2015.

The United States does not have a federal policy or strategy document on the protection of civilians. Instead, elements of relevant policy can be found across a range of government documents issued over the past decade. In general, the US tends to address the issue at the national level through the prism of ‘civilian harm mitigation’, which suggests a more limited and legalistic approach than the broad concept of protection of civilians.