Centre for Legal Research

Inter-active seminar event on 17th March 2017, Friday 

Posted by Lauren Rees | 0 comments
28Mar2017

A one day inter-active seminar on ‘The Impact of Armed Conflict on the Environment and Natural Resources: A Sustainable Development Goal (SDG) 16 Perspective’ was held on 17th March 2017 at the University of the West of England (UWE), Bristol. The event was organised by Dr Onita Das, Professor Jona Razzaque, Evadne Grant and Elena Blanco from the Department of Law at UWE, Bristol. The seminar co-funded by the Society of Legal Scholars (SLS) and the UWE Centre for Applied Legal Research (CALR),

The event consisted of four speakers drawn from academia and the voluntary sector presenting papers on a number of topics relevant to the overarching theme of event. Doug Weir (Toxic Remnants of War Project, Manchester) delivered a presentation on ‘Can the SDGs provide a framework for mainstreaming the environmental dimensions of armed conflict?’; Dr Sascha-Dominik Bachmann (University of Bournemouth) presenting on ‘Hybrid Warfare: Eco threats as security threats and the protection of the environment during hostilities’; Professor Karen Hulme (University of Essex) presenting on ‘Achieving SDG 16: Natural resources, good environmental governance and environmental human rights’ and finally, Professor Jona Razzaque (University of the West of England, Bristol) presented on ‘Sustainable investment and natural resources’.

Discussants from the law, politics and business faculties at UWE, Bristol, responded to each paper. Both discussants and the other attending participants (ranging from undergraduate to postgraduate students, UWE academics and law practitioners) provided excellent commentary and raised thought provoking questions, facilitating in depth discussion on the sub-topics presented. The seminar was well received by the speakers, discussants and participants.

Inter-University Environmental Law Student Conference on 22nd March 2017, Wednesday at Cardiff University

                 
Students from UWE Law School participate in the 3rd Annual Inter-University Environmental Law Student Conference at Cardiff Law School on Wednesday 22nd March 2017.

The Conference gives students from Cardiff, Swansea, Bristol and the University of the West of England (UWE), Bristol the chance to present about various topics.
Second and final year law students Sofia Anne John, Siddique Pathan, and Kayla Creque presented on topics ranging from ‘sustainable development in post armed conflict’ to ‘the relevance of sustainable development to climate change’.
The students found it an enjoyable experience and an exciting opportunity to showcase and listen to various perspectives on environmental law.

 

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CALR Forum: Does and Should International Law Prohibit the Prosecution of Children for War Crimes? 

Posted by Lauren Rees | 0 comments
08Mar2017

The picture of a young African boy holding a Kalashnikov in his hands has come to represent the archetypal child soldier drawn into a conflict he does not understand. It is thus claimed that children are not culpable for crimes they might commit during the conflict and, consequently, should not be prosecuted. On 1 March 2017 Noëlle Quénivet, Associate Professor in International Law at UWE, Bristol, challenged this view at a Centre for Applied Legal Research Forum. Alison Bisset, Associate Professor in Human Rights Law at the School of Law of University of Reading, responded to her paper. Noëlle Quénivet’s presentation, based on a paper that has been accepted for publication in the European Journal of International Law, argued that first, international law does not prohibit the prosecution of children for war crimes and second, in certain, narrow circumstances children having committed such crimes should be prosecuted.

The international community has for more than two decades pushed towards the prohibition of the prosecution of children for war crimes on the basis that children should be primarily viewed and treated as victims by virtue of their age and forced nature of their association with armed forces/groups. This lex desiderata created by the global civil society and UN agencies remains a wish, for the relevant lex lata, ie international humanitarian law and international human rights law allow States to prosecute children and even regulates such instances. States are encouraged to ‘[c]onsider excluding children under 18 from criminal responsibility for crimes committed when associated with armed forces or armed groups.’ (page 36) Has this permissive rule become a prohibitive rule? Or, phrased differently, have States made use of the permissive rule and thus prevented the creation of a customary norm prohibiting the prosecution of children for war crimes? After examining the practice and opinio juris relating to the prosecution at national level Noëlle Quénivet concluded that because post-conflict restorative mechanisms overshadow rehabilitative models of juvenile justice no clear answer can be given as to why States are not carrying out prosecutions. However, the fact that the US prosecuted (though not without controversy) children held in Guantanamo Bay for war crimes it was possible to draw the conclusion that States wished to keep permissive rule though in the very specific context of African post-conflict situations there seemed to be a trend towards the prohibition of prosecution. States practice at the international level is even less clear, for, while a few instances of state practice on the prohibition of the prosecution of children for war crimes can be discerned with regard to statutes of international tribunals and courts, the opinio juris seems lacking. States’ decision not to prosecute children is based on policy rather than law. In other words, States have kept the permissive rule alive.

The next question Noëlle Quénivet asked was whether the permissive rule should be retained. To answer such a difficult question she explained that the analysis of State practice and opinio juris reveal that the key element in States’ decision not to prosecute children for war crimes relates to the post-conflict context rather than to the age of the alleged offender. Put differently, the post-conflict restorative model of justice supersedes the rehabilitative model of juvenile justice. Rehabilitation of the child soldier happens within a wider restorative justice mechanism in which reconciliation among the offender, the victim and the wider community is essential. Yet, can reconciliation be achieved without justice or at least a sense of justice? Prosecution could be used as a tool to achieve this. Also, what happens to children caught in situations where there are or where is no need to create such reconciliation mechanisms and the veil of post-conflict restorative justice has been removed? This prompted Noëlle Quénivet to contend that the permissive rule should be retained but harmonised, ie applicable to a variety of situations, as well as limited in view of the fact that the prosecution of children for war crimes mainly rests on a deterrent approach towards punishment and the best interests of the child must stay the focus of any proposal. Noëlle Quénivet then proposed an elaborate system of triage and thresholds as she explained that any solution needed to work for the community by restoring a sense of justice as well as for the children in sending a message that the behaviour they have embraced is reprehensible. Further, she contended that the age of criminal responsibility should be set at 16.

Alison Bisset then shared her views on the subject. She pointed out that Noëlle Quénivet’s assessment of the international legal regimes and analysis of state practice demonstrated convincingly that in response to her first question - does international law prohibit prosecution? - the answer was no. The prosecution of child soldiers is neither prohibited by treaty, nor under customary international law. Yet, there is indeed a movement towards rehabilitation and reintegration as the favoured response and this movement finds some support in international law if child soldiers are viewed as being victims of exploitation and abuse. Treaties such as the UN Convention on the Rights of the Child as well as soft law instruments such as the Cape Town and Paris Principles view restoration and rehabilitation as in the best interests of children associated with armed groups and armed forces. Coupled with the fact that the ICC has jurisdiction over only those aged 18 and over at the time of the alleged offence and that children have not been prosecuted before international or internationalized courts, Alison Bisset argued that there is a belief at the international level that children should not be prosecuted for war crimes even if international law does not prohibit it.

Answering the second question - should international law prohibit the prosecution of children for war crimes? – was more difficult especially as recent studies point out that first, children are able to make fully reasoned choices on whether or not to join armed forces/groups and second, the affected society may seek the prosecution of lower level perpetrators such as children. Thus although Alison Bisset stated that there was no principled justification for why child soldiers should not be prosecuted, she maintained that if States were to stand the best chance of restoration and long-term peace and security, they must rehabilitate their children so that they can play a constructive role in building the future.

Alison Bisset then offered an insightful critique of Noëlle Quénivet’s restorative model of justice focused on rehabilitation and reintegration with prosecution acting as a last resort in a limited number of specific cases. First, she stressed that the creation and resourcing of programmes implementing Noëlle Quénivet’s proposal would pose a number of challenges. Necessary systems and safeguards would need to be put in place to protect children’s vulnerability and provide them with adequate support. Also where rehabilitation programmes become linked, even tentatively, to formal judicial proceedings a whole host of questions around procedural rights and protections also arise. The financial cost of these programmes cannot be overlooked. Sadly, Alison Bisset noted that even current initiatives, which are generally less complex than what was proposed, are not working well, thus questioning what chance there was of successfully introducing something even more complicated.

Alisson Bisset finished her response by sharing her views on wider issues. She, for example, noted that there was such a preoccupation with prosecution in the aftermath of mass atrocity that there was notable decline in the attention paid to and the quality of post-conflict transitional processes. This impacted on the effective rehabilitation and reintegration of child soldiers. Furthermore, the preoccupation with child soldiers deflected attention from other severe and far-reaching consequences of armed conflicts on all children.

The CALR Forum was attended by about 15 students and staff members from UWE. After Alisson Bisset’s response questions were taken from the floor. The audience was particularly interested in the nature of the charges brought against children (ie terrorism or war crimes), prosecutorial discretion in charging those fighting on the ‘good’ side, the definition of ‘voluntary recruitment’ and its application on the African continent, the effectiveness of the work of the United Nations Special Representative for Children and Armed Conflict, etc. The complexity of the issue of child soldiers and, more generally, children in armed conflict was no doubt stressed in this sober-minded exchange of views. 

 

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CALR Forum: Brexit, Article 50 TEU and the British Constitution 

Posted by Phil Rumney | 1 comment
03Mar2017

Brexit: A word that one cannot escape reading newspapers, watching the TV or listening to the radio. It is literally everywhere. Yet, what it means in legal terms is often misunderstood and its repercussions on the legal, and notably constitutional, framework in the United Kingdom overseen. Therefore, on 22 February 2017 the Centre for Applied Legal Research organised its first Forum of the academic year 2016/2017 on the subject. Three staff members of the Bristol Law School, Christian Dadomo, Martina Gillen and Noëlle Quénivet, shared their views about Brexit, Article 50 TEU and the British Constitution, whilst offering an international, European and national legal perspective on the Brexit debate. 

By way of introduction Noëlle Quénivet explained the legal bases of the European Union, ie treaties, stressing the concept of State sovereignty and the importance of understanding that both the ratification of and the withdrawal from a treaty are to be viewed as acts of sovereignty. She then explained that it was the Treaty of Lisbon that for the first time proscribed a withdrawal procedure in Article 50 of the Treaty on European Union. Noëlle Quénivet described the process from the notification of withdrawal to the ratification of the withdrawal agreement by the UK, highlighting the various stages at which the European institutions are and will be involved and underlining the difference between the legal requirements in national and European Union law. Reference was also made to the potential content of a withdrawal agreement (eg budgetary matters, institutional issues, the situation of non-UK EU citizens in the UK and of UK nationals in EU States, etc). 

Following on the idea of sovereignty that has so much been reiterated in the campaign leading to the referendum, Christian Dadomo delved into the multitude of types of sovereignty: parliamentary sovereignty, popular sovereignty and external or otherwise known as State sovereignty. After stressing that parliamentary sovereignty should be better understood as the primacy of Parliament in respect of statutes he showed the interaction and tensions between parliamentary and popular sovereignty, especially in light of the Brexit referendum. Furthermore, the relationship between the devolved authorities and the central government will be affected, as some of them after voting to remain in the EU would like a space at the negotiations table but have been denied so legally (with the Miller judgment before the UK Supreme Court) and politically. Christian Dadomo concluded by stating that Brexit will undoubtedly shake the constitutional legal edifice of the UK. 

Martina Gillen opined that Brexit will have serious repercussions on the UK Constitution and more specifically on the relationship between Westminster and the devolved regions. As she explained Northern Ireland is a case-example of how poorly thought the referendum was. Brexit will affect both the relationship between Northern Ireland and Westminster as well as between Northern Ireland and Eire and has already had the effect of reigniting nationalist Irish feelings, especially in regions that voted to remain in the EU. She then examined in details the McCord decision before the High Court of Justice in Northern Ireland, highlighting that the ruling was not a surprise as the claimants had not asked the right 

question (they asked whether Northern Ireland as a devolved authority could take part in the Brexit negotiations) and should have focused on the fact that persons born in Northern Ireland can take either British or Irish nationality and that Brexit would in fact deny equality of treatment for those who choose Irish nationality. 

The CALR Forum was attended by over 20 students and staff members from the UWE Bristol Law School. After each presentation questions were taken from the floor and a lively and insightful debate often beyond the narrower scope of the speakers’ presentation ensued. There were thus discussions on the withdrawal from the European Economic Area Agreement, the impact of the Dublin regulation on EU border States, the nature (and fate) of EU law in English law, the potential continued jurisdiction of the Court of Justice of the European Union, etc. The next CALR Forum which will be held on Wednesday 1 March, 14:00-16:00 in Room 2B065. Noëlle Quénivet will be presenting a paper on the prosecution of child soldiers for war crimes that has recently been accepted for publication in the European Journal of International Law. Dr Alison Bisset, Associate Professor at the School of Law of the University of Reading, will respond to the paper.

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Amendment of the Criminal Procedure Rules 

Posted by Lauren Rees | 0 comments
01Mar2017

Professor Ed Cape and Dr Tom Smith recently saw their research achieve significant impact, namely contributing to the amendment of the Criminal Procedure Rules (CrimPR).

In 2014/2015, Ed and Tom undertook research into the practice of pre-trial detention (PTD) in England and Wales. This important area – which deals with bail and detention in custody prior to trial or conviction - was part of a 10 country, EU-funded study led by NGO Fair Trials International. The objective of the project was to assess the practice of PTD across the EU, find examples of good and bad practice, and make policy recommendations to EU and domestic institutions. Ed and Tom conducted a desk-based review of PTD practice and procedure, surveyed criminal defence practitioners, observed PTD hearings, reviewed prosecution case files, and interviewed judges, magistrates and prosecutors. The findings of the research were published on the UWE research repository in early 2016 and incorporated into FTI’s regional report, which was presented to the European Parliament in May 2016.

One of the significant findings of the research was that courts, on average, took very little time to consider these vital decisions about the liberty of unconvicted individuals – particularly at an early stage where evidence and disclosure might be incomplete. Additionally, the research also suggested that adequate time may not be available for the defence to consider information supplied to it about the prosecution case prior to a PTD hearing. As such, the final research report recommended that the CrimPR be amended to compel courts to ensure adequate time is given to making decisions regarding PTD and that more be done to allow the defence to fully consider relevant materials prior to hearings.

In March 2016, the CrimPR Committee were sent the report and responded positively to its findings and expressed interest in incorporating its recommendations into the Rules. Over the course of the last year, Ed and Tom have been engaged with the Committee, including through submission of a position paper, attendance at a Committee meeting, and ongoing dialogue and consultation with the Secretariat. In February 2017, the Committee amended Parts 8 (Initial Details of the Prosecution Case) and 14 (Bail and Custody Time Limits) of the CrimPR to:

“impose on the court a duty to ensure that if information about the prosecution case is supplied later than usually is required then the defendant, and any defence representative, is allowed sufficient time to consider it; (ii) explicitly to require that information provided for the court in bail proceedings must be provided for the defendant, too; and (iii) to require the court itself in bail proceedings to take sufficient time to consider the parties’ representations and reach its decision.”

In their guidance for the amended rules, the Committee acknowledged the contribution of the Ed and Tom’s report (alongside the input of other interested people). This is successful outcome demonstrates the practical impact research can have, particularly through constructive dialogue with policymakers.

 

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Understanding Sexual Violence and Abuse: Causes, Consequences and Prevention, 9 March 2017 

Posted by Lauren Rees | 0 comments
01Mar2017

This is the fourth Understanding Sexual Violence and Abuse event as part of an open discussion about sexual violence, exploitation and abuse, along with the various ways of responding to these problems. This event will feature short talks given by experts, with an extended period for questions and discussion.

The event is intended to promote dialogue and understanding on topics of importance to the community. Anyone is welcome to attend - from those working in the area, to those with no prior knowledge who are simply interested in the topics under discussion and want to know more.

http://info.uwe.ac.uk/events/event.aspx?id=21036

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