First PROTAX project focus group works to counter tax crimes in the UK and EU

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Prof Nicholas Ryder (UWE Bristol), Sam Burton (UWE Bristol), Prof Umut Turksen (Coventry University) and Dr Fanou Rasmouki (TRILATERAL) hosted the first focus group as part of an EU funded project, PROTAX , in Bristol on 31 January 2019. PROTAX project is focused on the human factors surrounding tax crimes. As such, it seeks to understand ground-level problems that hamper the application of law, investigation, collaboration and ultimately the conviction of tax crimes. By integrating stakeholder knowledge and expertise, PROTAX will generate law enforcement tools and guidelines to help counter tax crimes and reach harmonised levels of organisation and networking across the EU.

Protax logo

At the focus group, we welcomed tax experts, law enforcement agencies, relevant industry representatives. It has been an excellent opportunity to discuss how to counter tax crimes in the UK and EU.

The following themes were discussed during the focus group:

  • Exploring tax crimes
  • LEA requirements and organisational aspects
  • Inter-agency co-operation
  • International collaboration
  • Dual role of the financial sector: Prevention and facilitation of tax crimes
  • Benchmarks and best practices
  • Ideas to advance the fight against tax crime

Once the remaining 10 focus groups in 10 different EU countries are completed, we will convene a conference in Brussels at the EU Commission where we will invite all focus group participants and other stakeholders involved in the prevention, investigation and prosecution of tax crimes. The conference will provide a platform for professionals specialised in tax and tax crime matters to learn about the findings of the focus groups and contribute to the formulation of recommendations to the European Commission and stakeholders to enhance capabilities in the fight against tax crimes.

For more information on Protax see the project website: https://protax-project.eu/

SLSA Seminar Series: The Perennial Problem of Disclosure – A way forward?

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By Ed Johnston

Ed Johnston has recently been award £1,500 from the annual Socio-Legal Scholars Association’s Annual Seminar Series. Ed is currently organising a one-day conference at UWE Bristol Law School on the topic “The Perennial Problem of Disclosure – A way forward?” This one day event will take place on Wednesday 3 July 2019.

Prior to the mid-1960s, there was no requirement for defence disclosure. Between 1967 and 1996 the defence only had to disclose alibi and expert evidence. The prosecution would disclose elements of their case to ensure ‘equality of arms’. The issue of balance between both parties is long-running, since the prosecution have historically commanded significant resources to investigate and prosecute crimes (in comparison to the defence). The system of disclosure is a fundamental element of fair trial procedure as it helps to compensate for this natural imbalance. However, with the advent of the defence case statement under the Criminal Procedure and Investigations Act (CPIA) 1996, both the underlying culture and systemic purpose of disclosure experienced a seismic shift.

In the following two decades, the general focus of criminal justice policy has been toward prosecuting cases in an efficient manner; the defence case statement forms a pivotal aspect of this. The disclosure regime was extended by the Criminal Procedure Rules (CrimPR) which now mean that disclosure, albeit operating under the guise of ‘case management,’ is essentially mandatory in summary trials. In contrast, under the CPIA 1996, summary trials were only the subject of a voluntary disclosure regime. Despite the insistence (via both judicial guidance and executive policy making) on the need for a culture of early disclosure and co-operative working to permeate modern criminal procedure, the post-CPIA 1996 regime is marked by practical failings and (arguably) ideological contradictions. This has generated significant and sustained criticism, and led to miscarriage of justices as a result of an inadequate disclosure system and culture.

In late 2017 and early 2018, a series of criminal cases collapsed after significant police failures in managing disclosure of key evidence. The first and most widely reported of these was the case of Liam Allan, who was accused of rape and released on bail for two years, before vital undisclosed evidence emerged days into his trial. In the wake of this, the CPS, Metropolitan Police, a Parliamentary Select Committee, and the Government have engaged in reviews of the effectiveness and fairness of the current disclosure regime in criminal proceedings. As mentioned above, this is not new; the modern system of disclosure has been lamented almost since its inception in 1996. There have been a number of critical examinations, including by academics Plotikoff and Woolfson (A Fair Balance in 2001); by Lord Justice Gross (A Review of disclosure in criminal proceedings in 2011); and by HMCPSI and HMIC jointly (Making It Fair in 2017) and the Mouncher Review (also in 2017).

Liam Allan speaking at the First Annual Criminal Justice Research Unit lecture at UWE Bristol in December 2018.

In 2018, two further reviews followed in the wake of the Allan case and others (including those of Samson Makele and Oliver Mears): the Justice Committee published Disclosure of evidence in criminal cases inquiry in July, and finally the Attorney General published a Review of the efficiency and effectiveness of disclosure in the criminal justice system in November. The latter review concluded that the ‘system is not working effectively or efficiently as it should’ and identified above all the need for a change in culture (rather than law) was needed. There is an obvious appetite for improving the function of the disclosure regime; yet, despite the numerous reviews and investigation, it remains fundamentally flawed and this represents a risk of causing further miscarriages of justice (which may or may not be detected). Speaking in June 2018, the former DPP, Lord Macdonald, suggested that it was ‘inevitable’ that innocent defendants had been imprisoned as a result of disclosure not being readily available to defence lawyers (a claim the then DPP, Alison Saunders, was hesitant to echo). Arguably, the current crisis in disclosure represents one of the most significant and impactful problems in 21st Century criminal justice.

This one day conference in July 2019 seeks to bring together academic and practitioner perspectives to examine potential avenues for reform and improvement. If you would like to attend this event, please register online here.

The confirmed speakers for the conference are: 

Anthony Edwards: “Contemporary issues with disclosure in the police station.”

Anthony is a criminal defence solicitor who specialises in Corruption, Fraud and Major Crime. He is widely acknowledged as one of the leading authorities on Police Station law and he has published widely in the areas of criminal procedure.

Dr. Abenaa Owusu-Bempah: “Reconsidering defence disclosure.”

Dr. Owusu-Bempah is an Assistant Professor of Law at the London School of Economics. Her research interests focus on criminal procedure and fair trial rights. Her recent book, Defendant Participation in the Criminal Process, examines how the disclosure provisions of the CrimPR compel the defendant to actively participate in their own criminal trial. The book examines how the adversarial criminal process can be effected by essentially non-adversarial provisions.

Dr. Hannah Quirk: “ Uncovering disclosure errors: Appeals and the CCRC.”

Dr. Quirk is a reader in Criminal Law at Kings College London. Her research interests lie in wrongful convictions and sentences. She has published extensively on the erosion of the Right to Silence and wrongful convictions.

Please see our event page for further details or click here to sign up now.

Catherine Easton (editor of the European Journal of Current Legal Issues) has been commissioned a Special Edition of the journal, which will focus on the papers presented at the seminar. This proposal has been accepted and the edition will be published in the winter of 2019.

The Knife ASBO: The Incorrect Response

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By Ed Johnston

Last week, the Home Secretary suggested a new measure to tackle the ever-growing problem of knife crime in England and Wales. He suggested that children as young as 12 could be sanctioned with ASBO-style order, should the offender breach the order, they could be imprisoned for up to two years. There is undoubtedly a major problem with knife crime in London and this requires a solution. In November 2018, the House of Commons Briefing Paper Knife Crime in England and Walesindicated that the period 2017/2018 had the highest rate of number of knife or sharp instrument crimes in over a decade with nearly 15,000 incidents. However, whilst this crime increased year on year, the Sanction Detection Rate for crimes that involved knives was under 30%. It is clear that something needs to be done to tackle this very dangerous problem. Furthermore, the Briefing Paper highlighted the findings of the Crime Survey of England and Wales that suggested 6.2% of 10-15 year olds knew someone who carried a knife and 0.3% of that sample self-reported that they carried a knife. The Government has previously attempted to ‘get tough’ on knife crime, The Criminal Justice and Courts Act 2015 introduced a minimum custodial sentence of six months for repeat offenders of knife crimes. Nevertheless, this has not provided an answer to the reoccurring problem and knife crime is perpetually in the news.

Knife Crime in England and Wales briefing paper
House of Commons Briefing Paper Knife Crime in England and Wales 

The Knife and Offensive Weapon Sentencing statistics published in December 2018 states that at the end of September 2018, there were 21,381 cases of knife crime formally dealt with by the criminal justice system. Of those cases, 36% of cases resulted in an immediate custodial sentence. A mere 11% of cases resulted in a caution, which is a 13% drop from September 2009. For almost 3/4s (73%) of offenders, this was their first knife or offensive weapon offence. So, whilst the courts are treating the problem with severity, the average custodial sentence exceeded 6.5 months in 2016 for the very first time; there appears to be no effective deterrent currently available. According to the House of Commons Briefing Paper, there were 5,053 admissions to English hospitals as a result of an assault by a sharp object in 2017/18. This is a rise of 14% on the previous year and when compared to 2014/15 it has increased by 39%. The problem is real, the courts have attempted to deter offenders by using harsher sentences which has driven up the average custodial sentence, however, nothing seems to be working. In fact, in the dawning hours of 2019, two people were killed in London before 6am.

It is clear that something needs to be done to tackle this problem. However, questions remain about Sajid Javid’s Knife Crime Prevention Orders (KCPO). The Home Secretary wants to amend the Offensive Weapons Bill in order to bring in these orders. Amendment 73A of the Bill suggests that the court can make an order if, on the balance of probabilities, on at least two prior occasions (within two years), the defendant was in possession of a bladed article without good reason, in a public place, school or further education premises. The good reason could be for work, educational purposes, religious reasons or as any part of a national costume. Whilst this is clearly aimed at deterring young people from carrying a knife, which is to be commended, the standard of proof is far lower than establishing if a defendant has committed a crime. All that needs to be established is the fact it is more likely than not the person has previously carried a knife twice. Should a defendant be subjected to a KCPO, there are a number of prohibitions that the court can impose. The court can prohibit the defendant from:

  • Being in a particular place
  • Being with particular people
  • Participating in regular activities
  • Using particular articles or having particular articles on them, or
  • Using the internet to facilitate or encourage crime involving bladed articles.

This is a civil injunction, hence the lower the standard of proof. However, any breach of the order will render the conduct criminal, and the defendant could be imprisoned. These types of injunctions are nothing new to the courts. They have had the power to stop defendants associating with certain people or entering certain spaces for years. The Anti-social Crime and Policing Act 2014, allows the court to ‘prohibit the respondent from doing anything described in the injunction’ or ‘require the respondent to do anything described in the injunction.’ Both sanctions would allow the court the bar an individual from being in a particular place, being with particular people, participating in regular activities or using the internet to encourage knife crime. This could mean a person subjected to an order could be banned from using social media.

 A new provision, is not required. Perhaps, the Home Secretary is looking to polish his ‘tough on crime’ mantra for when Teresa May steps down ahead of the next general election (with some suggesting that may be as early as this summer). Perhaps Mr. Javid should not look to widen the net of criminal justice by snaring more young people into its grasp, as the stigma of being involved or subjected to criminal sanctions is hard to shift for young people. Employment opportunities are only going to be hampered by being subjected to KCPO and it begs the question, how can this be effectively policed? If the aforementioned rise in custodial sentences does not deter young people from these offenses, will a bar on using WhatsApp or other social media platforms? Whilst the provisions, on paper, have some bite, the reality means that they are almost impossible to enforce. It is suggested that the orders will be reviewed periodically, although the police are already underfunded and struggling to tackle crime; it is unrealistic to suggest the police would have the resources to see if a KCPO is being complied with. Ultimately, the proposals are another example of an order which is enforced by a low standard of proof but carries consequences that could give rise to criminal sanction and could blight the offender’s future.

Perhaps the Home Secretary would be better served looking at alternatives to divert young people from knife crime, rather than creating new provisions, that replicate sanctions that are already on the statute book. The courts have tried using more serve sentencing powers and yet that has failed to remedy this ever-growing problem, it is hard to believe a regime that mimics existing legislation would fix this problem. Nevertheless, it will help Mr. Javid’s leadership bid as the Home Secretary looks like he is doing something, rather than actually doing something to tackle the growing epidemic of knife crime.

Professor Anthony Arnull’s Distinguished Professorial Address – UWE, 24 October 2017

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‘Should we trust the EU?’ was the controversial title of Professor Anthony Arnull’s Distinguished Professorial Address held on 24 October 2018 at the Bristol Law School, UWE. Prof Arnull who holds the Chair of European Union Law at the University of Birmingham and is the author and editor of a wide range of well-known scholarly works in the field (eg The European Union and its Court of Justice (OUP, 2nd ed, 2006), European Union Law: A Very Short Introduction (OUP, 2017), The Oxford Handbook of European Union Law (OUP, 2015)) started his Address by asking the question ‘What does trust have to do with the EU?’. He pointed out that the concept of trust is increasingly invoked by the CJEU in its jurisprudence. The view of the CJEU is that because Member States share the same values they should trust each other to respect them and thus cannot insist on evidence to show that they are being complied with.

Prof Arnull’s first task was to define the notion of ‘trust’. First, he noted that in an article published in 2004 Lenaerts identified a number of principles that should enhance the trust of individuals in the EU: transparency, equality of arms, legal certainty and predictability, and sound administration. (‘In the Union We Trust’: Trust-Enhancing Principles of Community Law’ (2004) 41 CMLRev 317-343). Writing on the same issue in 2017 Lenaerts explained that the CJEU was expecting the constitutional courts of all Member States to monitor the lower courts. (‘La vie après l’avis: Exploring the Principle of Mutual (yet not Blind) Trust’ (2017) 54 CMLRev 805-840).

Looking at the concept in a more general way Prof Arnull explained that Baier understands trust as ‘reliance on others’ competence and willingness to look after, rather than harm, things one cares about which are entrusted to their care’ but that it might be possible to add another dimension to trust, that of risk, a notion introduced by Niklas Luhmann in his extensive writings on the subject. In this context, both parties expect things to go smoothly for the benefit of both (eg hiring a babysitter). So, the question boils down to asking how can someone draw the conclusion that another person is trustworthy? After all, it is about good judgment and usually one relies on evidence to establish such trustworthiness. In other words, the question is: ‘does the person have a good track record?’ Sometimes as it is not easy to gather evidence one needs to use proxy indicators. This is particularly the case in decentralised systems when it is often difficult to find whether trust is met. Trust can indeed be misplaced and so there might be a lack of trust.

Going back to the European Union Prof Arnull asked whether it is rational to trust the EU. He observed that a high degree of trust had been displayed by the European States between the 1950 Schuman declaration and the 1957 Treaty of Rome that established the European Economic Community. Yet, the States also seemed not to trust each other, considering the possibility that a State might not live up to its treaty commitments. The Commission was tasked with ensuring that the treaty be applied, and an enforcement procedure was established under Article 169. Prof Arnull also went back to the enforcement procedure under the European Coal and Steel Community to prove his point. After all, the idea of policing States tends to show a lack of trust. Such an argument is supported by the introduction in the Treaty of Maastricht of the possibility for the Commission to start a second set of proceedings against States with a view to obliging them to pay financial penalties if they did not comply with the initial CJEU judgment. The Lisbon Treaty went a step further allowing the Commission to ask for financial penalties to be applied without having to seise the CJEU again, though that is only allowed in limited circumstances (Article 260(3) TFEU). Prof Arnull argued that there is trust in the Commission to enforce EU law but it was much higher in the past, especially under the European Coal and Steel Community. The Amsterdam Treaty also introduced in Article 7 TEU the possibility to check on States failing to comply with the key values of the European Union. Now such a procedure is being used against Poland and Hungary.

Prof Arnull then provided a myriad of examples of trust and lack thereof towards both Member States and the institutions of the European Union. As he pointed out in the Q&A session the permutation of trust relations in the EU does not permit a structured analysis of how trust works in the EU. He also explained that mutual trust is the basis of EU law as well as an assumption. That being said, if there is a lack of trust it does not mean that there will be no trust anymore; rather, it means that trust must be re-established at a later stage.

The application of the European Arrest Warrant is an example of the trust or lack thereof between EU Member States as the recent preliminary reference to the CJEU on a case brought by an Irish court shows (Case C-216/18 PPU). Indeed, the Irish court questioned whether the right to fair trial would be guaranteed should Ireland extradite the individual to Poland.

With regard to individuals and how much they can trust the EU, Prof Arnull highlighted that originally, under the ECSC treaty, legal and natural persons had a relatively easy access to judicial review but the Treaty of Rome severely curtailed that right. The reason for this was that such judicial review was viewed as detrimental to the good functioning of the then European Economic Community.

To ensure though that individuals benefitted from EU law, the Court established the principles of direct effect and supremacy. If it had thought the Member States could be trusted to comply with EU law it would have probably not created these principles. The CJEU also works on the basis of trust in the sense that it assumes that the highest national courts comply with EU law as well as monitor lower courts. Unfortunately, this was recently put to the test as the Danish Supreme Court refused to follow a preliminary reference in 2016 (Ajos Case). So, if a constitutional court does not comply with EU law such monitoring disappears or, at least, becomes more difficult. Some academics claim that the Danish court’s reaction was because it views the CJEU as too activist and this does not work well with the Danish legal culture. The question however is why such an issue is raised after Denmark has been for so many years in the European Union.

The European Commission is viewed as one of the most powerful institutions and so trust in it is paramount. Unfortunately, a number of events have permitted us to doubt the trust we put in it. For example, in 1999 the Santer Commission resigned. In 2006 Edith Cresson, a Commissioner, was found guilty of misconduct (Case C-432/04). More recently in 2018 the Ombudsman has had to deal with two cases of maladministration against the Commission, the first one relating to Barroso, the former President of the EU Commission taking up a job as advisor with Goldmans Sachs and, the second one relating to the appointment of Selmayr as Secretary-General. It should however be noted that in the latter case the Ombudsman did not attack the individual, rather it was the process that led to his appointment that was put in question. This all does not look good when the Commission is, according to the treaties, the guardian of the treaties and yet seems to contain a number of individuals who cannot be trusted.

The history of the European Monetary Union (EMU) is another point in case. Italy wanted to play a strong role in the EU and thus had to show that it fulfilled the convergence requirements to be part of the EMU. The criteria were flexibly interpreted in 1998 and so Italy became part of it. Later, Italy and Greece became the victims of the 2008 financial crisis. This led to asking the question why Greece had been accepted in the Eurozone in the first place. The criteria, so it seemed, did not appear to have been rightly applied or, possibly, there was a deliberate attempt by Greece to mislead other EU Member States. In any case the issue of trust was raised in this context. The problem was that the Council is the only body that can oblige a State to correct the deficit within a certain timeframe. Yet, the Council, notably due to its composition is unwilling to do so. As a result we end up in a situation whereby commitments are made but not upheld and then the breach is not rectified because of collusion between Member States. All this reveals that the actors at stake cannot be deemed trustworthy, at least in the field of monetary policies.

Another good illustration of the issue of trust in the EU is the enlargement process. At the Copenhagen European Council it was agreed that Cyprus could become a Member of the EU and that accession by a united Cyprus was encouraged. Consequently, the process launched by Kofi Annan, then Secretary-General of the United Nations, was supported by the EU. Yet, the EU did not attach any conditionality and so, despite the rejection by the Greek Cypriots of the unification of the island in a referendum organised by the United Nations, the EU allowed Cyprus to join the EU but on the understanding that the acquis was suspended in the northern part.

In conclusion, Prof Arnull explained that first the EU treaties have express provisions showing the lack of trust in the Member States. Second, practice also reveals that at times neither the Member States nor the EU institutions can be trusted. In other words, there are many reasons for not trusting the EU and the Member States. Does that mean that there is a crisis? No, according to Prof Arnull. Rather, all institutions must show that they are trustworthy and this can be done by setting practical guidelines and examples of good governance.

Student blog post: Can the events that happened during the Maydan protests in Ukraine be qualified as crimes against humanity?

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This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. Following from last year’s blogging success, we decided to publish our students’ excellent work in this area again in this way. The module is an option in the second year of Bristol Law School’s LLB programme. It continues to be led by Associate Professor Dr Noelle Quenivet. Learning and teaching on the module was developed by Noelle to include the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication

Guest Author: Susanna Lando 

November 2013: President Yanukovych announces that Ukraine will not be signing the European Association Agreement. Within a couple of days the situation gets out of hand. The question however is: are the acts committed enough to qualify as crimes against humanity under the International Criminal Court (ICC) Statute? In my opinion, they are.

After President Yanukovych’s decision went public, peaceful protests started in the capital Kiev. The facts are briefly outlined in the diagram I have made below (Euromaidan Press for details).

© Susanna Lando

Source: here

Although not a party to the Rome Statute, Ukraine accepted the jurisdiction of the ICC by a declaration under Article 12(3).The prosecutor however chose  not to continue the investigations on the basis that neither the widespread nor the systematic requirements were present (see I Marchuk, ‘No Crimes Against Humanity During the Maydan Protests in Ukraine? Or the ICC’s Prosecutor Flawed interpretation of Crimes Against Humanity?’ (2017) 35 Boston U Int’l LJ 50-55). The concept of crimes against humanity is outlined in Article 7 of the Rome Statute. Its chapeau contains two elements: the acts must be widespread or systematic and directed against a civilian population (see video for details). In addition, both an actus reus and a mens rea must be identified. The actus reus consists of acts of serious violence listed under Article 7(1)(a)-(k). The mens rea requires knowledge of the attacks on the civilian population, and the awareness that the acts constitute part of the attacks (ICTY, Prosecutor v Kunarac, para 99)

Let’s first look at the chapeau and whether it is fulfilled in relation to the events that took place during the Maydan protests. A civilian population comprises any person who is not a member of the armed forces (Article 50(1) of Additional Protocol I to the Geneva Conventions). A person ceases to be a civilian when he/she takes a direct part in the hostilities which is defined as the ‘(collective) resort by the parties to the conflict to means and methods of injuring the enemy’ (Interpretative Guidance on the Notion of Direct Participation in the Hostilities 43). In this case, however, the Maydan protests were performed peacefully and without weapons, therefore the individuals can be classed as civilians.

As the test for widespread or systematic is a disjunctive test (ICC, Situation in the Republic of Kenya, ICC, para 94), I will therefore only examine the requirement for systematic attacks. This concept was defined in Prosecutor v Katanga (ICC, para 394) and Prosecutor v Gbagbo (ICC, para 223) which referred to ‘the organised nature of the acts of violence and the improbability of their random occurrence’. The acts were frequent between December 2013 and February 2014 and they followed a clear scheme; there was an escalation in the choice of the different methods of violence: the beatings, the kidnappings, restrictive anti-protest laws, and finally the use of snipers and grenades. The pattern is, I believe, clear, and the acts were premeditated and planned as mentioned in Prosecutor v Akayesu (ICTR, para 580), which shows that the mens rea for the act was also present. Furthermore, it should be noted that the fact that they might have been committed for the President’s personal ends is irrelevant (ICTY, Prosecutor v Kunarac, para 103).

The specific crime concerned in this case in my opinion is persecution (Article 7(1)(h) Rome Statute). This entails three further requirements to the ‘chapeau’ of crimes against humanity. These include: ‘severe deprivation of fundamental rights contrary to international law (Commentary Rome Statute), on the basis of political, […] religious grounds or gender, and in connection with any act referred to in article 7(1)’.

With regards to fundamental rights being violated on the basis of discriminatory grounds, I believe there was a breach of Articles 7 and 10 of the ECHR in conjunction with article 14. Article 7 states that there shall be ‘no punishment without the law’. In this case the Maydan protesters were unlawfully arrested for charges with a higher penalty than the one applicable before the anti-protest laws. Article 10 refers to people’s freedom of expression which was clearly violated as the anti-protest laws cannot be viewed as falling within any of the lawful grounds for restrictions listed in the Convention (such as territorial integrity and prevention of crime). Finally, Article 14 regards discrimination on the basis of any ground such as ‘ethnicity, religion, political or other opinions […]’. The facts clearly suggest that the Ukrainian protesters were discriminated against because of their political ideas. Therefore both the first and second requirement for persecution are satisfied.

Finally, the acts must have been committed in connection to other acts enumerated in Article 7(1) of the ICC Statute. As Zimmermann explains, ‘[e]ven isolated acts […] will, if committed in connection with widespread or systematic acts of persecution, render those acts […] crimes against humanity’ (A Zimmermann, ‘Implementing the Statute of the International Criminal Court: The German Example’ in LC Vohrah et al (eds), Man’s Inhumanity to Man: Essays on International law in Honour of Antonio Cassese (Kluwer 2003) 977, 984). In my opinion it is therefore quite evident, based on the facts, that the beatings, kidnappings, shootings and anti-protest laws were aimed at intimidating and mistreating the population in order to force them to stop the protests.

Therefore, I argue that there are no doubts as to the nature of the crimes committed during the Maydan protests: they were crimes against humanity. Unfortunately, there has been a lack of interest in the application of international criminal law in this matter.

Student blog post: To which extent is it possible to include cultural genocide in the definition of genocide as stated in the ICC Statute?

Posted on

This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. Following from last year’s blogging success, we decided to publish our students’ excellent work in this area again in this way. The module is an option in the second year of Bristol Law School’s LLB programme. It continues to be led by Associate Professor Dr Noelle Quenivet. Learning and teaching on the module was developed by Noelle to include the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication.

Guest author: Nikita Isaac

In this blog post I am addressing the highly topical issue of ‘cultural genocide’ and its potential inclusion in the definition of genocide. Whilst there is no legal definition of cultural genocide, we can still consider it as falling within the definition of genocide as stated in Article 6 of the ICC Statute. Several definitions of cultural genocide have been propounded by academics, one being a ‘purposeful weakening and ultimate destruction of cultural values and practices of feared out groups’ (pp 18-19). I believe that cultural genocide is present in many situations such as Darfur. This blog post argues that it is possible to include cultural genocide in the definition of genocide.

Signature of the Genocide Convention (Source: here.)

The work of Lemkin who coined the term genocide supports my view as in his broad definition he included cultural genocide alongside physical and biological genocide. He believed that physical genocide and cultural genocide were ‘one process that could be accomplished through a variety of means(D Short, ‘Cultural Genocide and Indigenous Peoples: A Sociological Approach’ (2010) 14 IJHR 833, 835), whether through mass killings or coordinated actions aimed at destroying essential foundations of group life.

The resulting definition in the ICC Statute is far from what Lemkin envisioned as still today cultural genocide is unrecognised legally. The travaux préparatoires of the Genocide Convention included a section on cultural genocide which was then excluded from the final version even though it had been deemed a serious human rights violation and thought to be a stand-alone crime. It is this version, that of the Genocide Convention, that was adopted in the ICC Statute. Political factors had played a part in the exclusion of cultural genocide as the United States were against formulating criteria relating to cultural genocide given their historical relationships with indigenous peoples (L Kingston, ‘The Destruction of Identity: Cultural Genocide and Indigenous Peoples’ (2015) 14 Journal of Human Rights 63, 65). So, ‘[t]he wording of the Convention was shaped … not to criminalize their own behaviour’ (C Powell, ‘What do Genocides Kill? A Relational Conception of Genocide’ (2007) 9 Journal of Genocide Research 527, 532).

The ICC Statute preamble states that parties to the statute are ‘[c]conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time’. Thus, if culture is a protected interest by the states that are parties to the ICC Statute why is cultural genocide not recognised?​​​​​​​

This picture shows how indigenous children were stripped of their cultural identity when forced into westernised schools. (Source: here.)

The example of what has happened to some indigenous groups in North America such as the Winnemem Wintu (see article by Kingston) substantiates my view that cultural genocide should fit within the definition of genocide. Cultural genocide affects these tribes as their culture and identity are stripped away over time and destroyed, though they may not suffer physical harm. The Winnemem Wintu are federally unrecognized (Kingston, p 70) by the US government and so are unprotected. Of the 14,000 Winnemem Wintu people only 123 remain (Kingston, p 70). They have continually lost land from the 1800s onwards (Kingston, p 70) and their cultural life as they know it is being decimated in front of their eyes. Their very means of life have been restricted through fishing bans, using plants for medicine and loss of ceremonial grounds (Kingston, p 70). The definition of genocide clearly does not safeguard indigenous people even though the loss of culture to them is just as devastating as loss of life (Kingston, p 72; see also this video). The UN Declaration of Rights for Indigenous People offers protection now, but it has taken over 60 years to reach this point and in that time indigenous people suffered detrimentally. I argue that culture can be seen as a fundamental human right. Yet, although this shows progress with regard to cultural issues, in no way does it criminalize the behaviour against indigenous people which means that there is still no international platform to criminalize cultural genocide.

This picture displays the shocking difference before and after a child was forced into school (Source: here.)

A case which reaffirms my opinion is Prosecutor v Krstic as it dealt with the genocide of Muslim men and boys in the safe area of Srebrenica (see video). It is interesting to note that the ICTY opened the discussion of cultural genocide stating that ‘[t]he destruction of culture may serve evidentially to confirm an intent, to be gathered from other circumstances, to destroy the group, as such (para 53). So, it is taken that cultural destruction satisfies the test of dolus specialis needed to fulfil the mens rea of genocide. Judge Shahabuddeen dissenting acknowledged, ‘it is not convincing to say that the destruction, though effectively obliterating the group, is not genocide because the obliteration was not physical or biological’ (para 50). So, referring back to the Winnemem Wintu, although they have not physically or biologically suffered, it does not mean that they have not suffered through other means. The Winnemem Wintu have suffered through losing their culture due to the construction of a dam on their historic and sacred land. This undoubtedly reinforces the claim that cultural genocide can be recognised via case-law despite not being expressly included in the statute of an international criminal tribunal.

(Source: here.)

Overall, I truly support the idea that it is possible for cultural genocide to be included in the definition of genocide as stipulated in the ICC Statute. As discussed, originally, a much broader definition of genocide was drawn up that included cultural genocide; however, this was excluded, thereby leaving indigenous people unprotected for decades. This has had a knock-on effect in the case law which, although making obvious references to cultural issues in relation to genocide, does not recognise ‘cultural genocide’ as a crime as such.

Student blog post: In light of the article by Melissa Bellitto, ‘The World Bank, Capabilities, and Human Rights: A New Vision for Girls’ Education beyond’ (2015) Florida Journal of International Law 91 discuss the role of the World Bank as a funder of education.  

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 This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. Following from last year’s blogging success, we decided to publish our students’ excellent work in this area again in this way. The module is an option in the second year of Bristol Law School’s LLB programme. It continues to be led by Associate Professor Dr Noelle Quenivet. Learning and teaching on the module was developed by Noelle to include the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication.

Guest blog post: Daniele Tatoryte

Introduction

This blog post examines the role of the World Bank as a funder of education. Defined as an international organisation that helps emerging market countries to reduce poverty and promote prosperity, the World Bank is part of the World Bank Group, which is a family of five international organisations, and is composed of the International Bank for Reconstruction and Development and the International Development Association. The World Bank funds a variety of projects notably relating to education by providing loans in developing countries. It has been involved in education since 1962, thus being the largest international funder of education for development in low-income countries and supporting them with $3 billion a year. Overall, the World Bank has funded 2512 education projects. In this blog post I will first discuss the issue of gender inequality and then discuss education in the broader framework of human rights as I believe that the World Bank’s important role in supporting education should be more human rights focused.

 Gender Inequality

The Convention on the Elimination of Discrimination Against Women is the key international legal instrument that seeks to eliminate all forms of discrimination against women. In spite of its existence, girls (M Bellitto, ‘The World Bank, Capabilities, and Human Rights: A New Vision for Girls’ Education Beyond 2015’ (2015) 27 Florida Journal of International Law 91) are the most affected by education inequality as a large majority does not have access to education owing to cultural and social barriers (M Nussbaum, ‘Women’s Education: A Global Challenge’ (2004) 29 Signs: Journal of Women in Culture and Society 332). It is submitted that if girls could access education, they would better tackle issues such as medical care and contribute to the economy of the State, which is the aim of the World Bank (Bellitto at 101). Scholars such as Nussbaum and Sen have criticised the fact that women are treated as economic commodities and that their worth is based on their ability to contribute to the formal economy (see discussion in Bellitto at 95). The best way to deal with this problem is to implement anti-discriminatory laws that eradicate discrimination, a good illustration being India that has adopted a rights based approach in primary education. The World Bank, UNESCO and the Global Partnership for Education are focused on improving gender equality and empowering girls and women through quality education. To attain these goals, projects such as The Education 2030 Framework for Action (FFA) aims to achieve greater results by 2030. Some of their goals are to train more teachers, to support gender equality and improve the quality of teaching. In this light it is argued that educational planning could be a good approach to take into account and tackle all factors affecting education.

(The first UNESCO chart below shows the number of children (according to education level and gender) who were not enrolled in education between 2000 and 2015 whilst the second   indicates that the number of children without access to education varies depending on the continent.)

 

 Human Rights and Education

So, how can this problem be tackled? First, one may argue that the World Bank is bound by human rights law. After all, it has international legal personality as it fulfils three requirements: (1) it is independent from its member states in its functioning; (2) it possesses the capacity to create international rights and obligations; (3) and it possesses the capacity to bring or defend international claims (see here at 364-365). Unfortunately many courts do not have jurisdiction over international organisations and so there is no international judicial remedy against the World Bank. That being said, the Inspection Panel of the World Bank plays an important role as a control mechanism. If the funding provided by the World Bank is not used correctly, a claim can be brought by a minimum of two individuals so that the Inspection Panel can start an investigation. For example, in Nepal a claim, later dismissed, was made that discrimination on the basis of sexual orientation applied to vocational education. Another solution could be to direct the funds of the World Bank to local NGOs, rather than to central governments and education ministries (see here at 61-62), with a view to making education more effective and compliant with human rights law.        ​​​​​​​

Conclusion             

From my point of view, the World Bank and the State should work together to overcome social and cultural barriers affecting gender inequality in education. Undoubtedly, there has been a marked improvement in providing education and achieve gender equality. That being said, I could also argue that the approach the World Bank is adopting towards education is more economic than human rights based as primary education is supposed to be free and accessible to everyone. If access to education depends on one’s ability to pay for it then the human rights to education is violated. Moreover, it should be stressed that education is a necessity for the economic growth and development of these countries. On the one hand the World Bank provides these developing countries with funding to improve their economy but on the other, it takes away their financial independence and obliges them to violate human rights law by complying with conditions such as the privatisation of schools. Consequently, the implementation of a monitoring body independent from the World Bank is essential to improve its functioning and ensure that all its actions comply with human rights law.

A summary of this blog post in the form of a Prezi presentation is available here.

 

 

Student blog post: With Reference to the Case-Law of the European Convention on Human Rights Do Prisoners Have the Right to Vote and, if yes, to which Extent?

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This post (edited for publication) is contributed to our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. Following from last year’s blogging success, we decided to publish our students’ excellent work in this area again in this way. The module is an option in the second year of Bristol Law School’s LLB programme. It continues to be led by Associate Professor Dr Noelle Quenivet. Learning and teaching on the module was developed by Noelle to include the use of online portfolios within a partly student led curriculum. The posts in this series show the outstanding research and analytical abilities of students on our programmes. Views expressed in this blog post are those of the author only who consents to the publication

Guest author: Magdalena Vakulova

Introduction

The right to vote has always been a hot topic. In fact, fights to achieve universal suffrage have been here for centuries, and still continue today. Even though the right to vote is one of the basic principles of democratic society and the strongest ‘say’ the citizen can have as well as one of the fundamental human rights encapsulated in Article 25 of the International Covenant on Civil and Political Rights (ICCPR) there are still many ambiguities over potential restrictions to this right.

The current law in the United Kingdom denies the right to vote to prisoners while incarcerated (People Act 1983, part 1 section 3). However, according to Hirst, a case decided by the European Court of Human Rights, the denial of right to vote for prisoners falls outside the given margin of appreciation as the automatic ‘blanket ban‘ contradicts the very essence of this right.

Referring to the relevant case law I will examine the right to vote for prisoners in the UK. I decided to focus on the UK because the judgment (Hirst v UK) was not only the first one in a long series of cases relating to universal suffrage for prisoners but was also applied in different jurisdictions across Europe. I will be arguing that even though the States were given a wide margin of appreciation to exclude prisoners from the voting process, this can only be done if it does not violate the whole essence of the right. In my opinion reasonable restrictions of this right should be allowed and approved as compatible with Article 3, 10 and 14 of the European Convention on Human Rights (ECHR)

Mr Hirst’s Argument

In this video Mr Hirst, convicted of murder, argues in favour of prisoners’ right to vote as a basic human right. 

The Right to Vote as the Basis of Democract

First, we must understand that the right to vote is not only a basic aspect of citizenship but also viewed as the ‘core principle’ (L Beckman ‘The Right to Democracy and the Human Right to Vote: The Instrumental Argument Rejected’ (2014) 13 Journal of Human Rights 381) of the democratic system (Watch this video which explains why a voting right for everyone is so important in a democratic society.) In order to ensure effective democracy within the State the basic human rights of every citizen (Scoppola v Italy, para 51) must be preserved and this without discrimination or unreasonable restrictions incompatible with the terms of the ECHR (Hirst v UK (paras 27 and 41)). Moreover, everyone’s right to participate in voting is implied in Article 21 of the 1948 Universal Declaration of Human Rights and more explicitly outlined in Article 25 of the ICCPR where the right to vote is established as a binding norm of international law. Further Article 3 of Protocol 1 to the ECHR states that the right to vote is not only the key aspect of effective political democracy but also an important element of the Convention system (Mathieu-Mohin and Clerfayt v Belgium, para 47). Therefore the exclusion of prisoners from the right to vote must be reconcilable with the purposes of Article 3 of Protocol 1 (Hirst v UK (No. 2), para 62). However, in my opinion, the UK has departed from this fundamental norm as it has prevented prisoners from exercising this basic right and so has fully blocked their access to the democratic system.

The Margin of Appreciation and UK Arguments 

In the case of Hirst v UK it was held that a blanket ban on prisoners’ right to vote under s. 3(1) of the 1983 Act is not compatible with Article 3 of Protocol 1. Even though the States are endowed with a wide margin of appreciation and the rights under Article 3 are not absolute, the automatic ban falls outside these margins (Hirst No 2, para 82) as it is not proportionate (Scoppola, paras 93-102; Hirst No 2, paras 76-85) (see also Sauvé v Canada (Supreme Court of Canada), paras 37 and 54-62).

The first  argument that the UK submitted to the European Court of Human Rights was that as prisoners had breached a social contract, they lacked moral virtue and therefore did not deserve this right. The second ground of the government’s reasoning was that this restriction was a punishment which helped enhancing civic responsibility (Hirst No 2, para 50).

The Response of the ECtHR to the UK Arguments 

The ECHR rejected the UK arguments. Firstly, it argued that the lack of moral virtue is contradictory to the fact that the State requires prisoners to fulfill other civic duties. Moreover the ECHR emphasized that the right to vote is a right and not a privilege (see also Sauvé, paras 14, 19-24 and 37; Hirst No 2, paras 59 and 75) which you deserve through a good moral virtue.

Secondly, it was held that incarceration per se is not a reasonable justification for violating fundamental rights. Whilst the ECHR to some extent approved the idea of a voting ban being understood as a punishment (Hirst No 2, paras 74-75, see also Dikson v United Kingdom) it however stressed that any such restriction  needed to have a clear link between the punishment and the restriction (see Hirst No 2, Joint Dissenting Opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens, para 8 and Dissenting Opinion of Judge Costa, para 3). Yet, there was no such evidence that the UK had even thought about the link to the offense (see discussion by Weston) or any other justification of the punishment. In contrast the UK applied the automatic ban to every prisoner. The UK reasoning was not objective at any point and therefore I agree that the ban contradicts the very essence of the universal suffrage (see Mathieu-Mohin, para 52).

Conclusion 

In my opinion the reasoning of the European Court of Human Rights in Hirst was correct as the UK’s justification for the ban was discriminatory and not legally tenable. In this light I think that the UK should carry out debates and amend the current legislation so that the restriction of the right to vote is possible to some extent at least. Furthermore I believe that enfranchisement will help prisoners in their rehabilitation.

Visiting Scholar Dr Philippe Karpe at the Bristol Law School

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Written by Dr Noelle Quenivet

Between 10 February and 10 March 2018 the Centre for Applied Legal Research hosted Dr Philippe Karpe as Visiting Scholar. Dr Philippe Karpe is a senior legal researcher and international expert working for CIRAD, a French agricultural research and international cooperation state organization working for the sustainable development of tropical and Mediterranean regions. Worldwide there are 850 CIRAD researchers assigned in 40 countries involved in an array of projects. Dr Karpe is currently posted in Nairobi, Kenya.

Invited by the International Law and Human Rights Unit and the Environmental Law Research Unit it was a pleasure to have Dr Karpe with us as he took part in a wide range of teaching and scholarly activities offered by the Bristol Law School whilst also pursuing his own research on indigenous people and the management of natural resources. By education Dr Karpe is a public international lawyer who studied at the universities of Nancy, Paris 10 and Strasbourg in France and holds a ‘habilitation à la direction de recherche’ (Accreditation to supervise research,) a French post-doctoral degree allowing him to supervise PhD students. Besides supervising PhD candidates at CIRAD he also teaches at the universities of Strasbourg (France) and Hokkaido (Japan). The bulk of his work however consists in planning and running projects with and for international organisations (eg United Nations Development Programme-UNDP, World Bank), NGOs (eg Rainforest Foundation Norway, Organisation des Nations Autochtones de Guyane-ONAG) and other stakeholders applying his expertise on governance and rule of law, including indigenous peoples’ rights (general and particular rights, especially land rights, forest’s and carbon’s rights, forest users’ rights, women’s rights), socio-environmental safeguards, sustainable forest management, rural and forest land tenure (including for the implementation of the Voluntary Guidelines on the Responsible Governance on Tenure of Land, Fisheries and Forests in the Context of National Food Security-VGGT), participative management of lands (including the use of artificial intelligence), participative mapping, institutional arrangements and stakeholder commitments (civil society, forest communities, etc.).

Dr Karpe led workshops on three modules (‘Natural Resources’, ‘Corporate Governance and Corporate Social Responsibility’ and ‘European Environmental Law and Policy’) offered on our LLM programmes. In each of these modules he shared with the students his extensive knowledge and practical expertise in the relevant fields. In particular he brought law to life by using concrete legal problems he had been confronted with in his own field work. For example in the module ‘Natural Resources’ led by Prof Jona Razzaque Dr Karpe produced real forest legal texts that were enacted by regional, national and local public authorities. The students could thus see how forests are protected (or not). This undoubtedly allowed the students to understand better the practical applicability and application of the law as well as its (sometimes unintended) consequences on local populations. In the module ‘Corporate Governance and Corporate Social Responsibility’ the students were asked to engage in a discussion on ethical aspects of activities carried out by multinational enterprises using real contracts that were agreed upon between indigenous people and organisations. Passionate discussions in this workshop run by Dr Karpe and Dr Sabine Hassler on for example the protection of traditional knowledge in India and the protection of the intellectual property rights of the indigenous peoples ensued. This inquisitive and practice-oriented type of engaging with the students was again displayed in the workshop on the EU Common Agricultural Policy (CAP) in the module ‘European Environmental Law and Policy’. Together with the module leader, Christian Dadomo, Dr Karpe challenged the students to analyse the current CAP reform and its interface with the environment and, more largely, the future shape of the society. He notably discussed with the students the negative and positive connections between agriculture, the society and the environment (eg pollution, deforestation, drying up of rivers, etc) and how the reform of the CAP deals with these issues. Dr Karpe’s visit to UWE was no doubt an asset to further nurture our practice-led and student-centred teaching culture on the LLM programme at UWE.

Throughout his stay at UWE Dr Karpe also took the opportunity to attend a number of external engagement events organised by the units of the CALR such as the Brexit and Corruption talk by Dr Lorenzo Pasculli and the Brexit and Trade Relations panel discussion. As a scholar working often far away from European legal issues he particularly enjoyed this insight into one of the most commonly debated issue in the UK: the withdrawal of the UK from the European Union. In this context, he sincerely enjoyed the great variety and quality of the different UWE’s opportunities to develop and enrich the knowledge on many scientific and political vital present concerns.

Dr Karpe had the opportunity to deepen his present academic research especially on Harmony with Nature, the Commons, the indigenous peoples and the farmers by collecting many references and academic articles on the UWE’s virtual library and by daily discussions with colleagues on a variety of topics, some of them relating to research methods and methodology (eg epistemology, social-legal studies and critical legal studies). Furthermore his stay at UWE gave him the opportunity to consider some new academic concerns such as conflict, war and the humanitarian legal framework.

On two occasions Dr Karpe presented his work to UWE staff and students. At a first event he shared with us his practice-based research and at a second reflected upon his work as a lawyer in the field. A roundtable on ‘The Future of the Commons’ was organised on 28 February 2018 to discuss the definition of the concept of the ‘Commons’ and develop the ‘Commons Thinking’. Dr Karpe’s intervention focused on his own experience of the commons in the African context. For example he was once confronted with what appeared to be an odd situation in a village. The local population did not seem to be related or linked, the concept of society did not seem to apply either and it appeared that each person was working for him/herself. A positive, classic lawyer would have undoubtedly failed to realise that there was something beyond that and that in fact these individuals were connected by a common, shared ‘space’. Dr Karpe then questioned whether the concept of the commons was an answer to this practical/technical problem which could be turned into a political concern. He posited that current values do not conform to aspirations of justice and that contemporary laws do not help support, protect and promote the life of individuals who live in such a situation. Yet, as a lawyer, his job is to establish justice between people and to find solutions to concrete technical as well as political problems. Thus in his view the concept of the Commons appear to be the most suitable tool. However, when trying to write the law of the Commons the lawyer faces the harsh reality of having to acknowledge that law simply is not the most appropriate tool. For example, law is usually split in different areas such as contract law, family law, property law, etc and yet the Commons transcend these separations. Also the Commons are a ‘space for development’ as they create opportunities for changes and evolution. This all makes it difficult to freeze the Commons into law. Dr Karpe then argued that for him it was crucial that human rights be at the centre of all these activities. Law should be created around human rights. He also challenged the vertical relationship of law whereby constitutional law sits at the top of the hierarchy of any national legal system. Whilst he admitted that this might sound revolutionary as lawyers struggle to understand law in anything but hierarchical terms and categories he emphasised that only a horizontal understanding of the law could avoid corrupting the Commons. As he explained his support for the Commons he however warned that the concept of the Commons might in specific contexts be used as a new form of colonialism enabling State and organisations, for example to deny rights to indigenous people on the basis that under the principle of non-discrimination and shared access to resources no special rights should be given to them.

Last but certainly not least Dr Karpe gave a talk entitled ‘Has the Wandering Lawyer Reached his Destination? – The Adventures of a Lawyer Working in the Field’ which gave him the opportunity to reflect on his work. It was an enlightening talk as Dr Karpe shared with us over 25 years of research in Cameroon, the Central Republic of Africa, Madagascar, Democratic Republic in Congo, Gabon, etc. He kicked off this presentation by asking ‘What am I? What is my purpose as a lawyer?’. Looking at the type of jobs he usually carries out he acknowledged that his work tends to touch upon a range of topics (eg weddings, contracts, etc) though it does focus on forestry. Yet, as a human being he questions what his real role is. For him, he should be promoting justice and more specifically social justice. As a result he does not question the abstract internal coherence of the texts, the content of texts or their effectiveness and efficiency as such. Rather, these are only steps in this research work. The basic research question is ‘under which conditions may the lawyer contribute to improving the living conditions of the local population?’. The objective is thus to understand how law can contribute to improving the living conditions and ensure the protection of a certain idea of a community of life. For this, four assumptions – in the meantime, he challenged them –  must be made: 1) laws and rules may contribute to social change and lawyers are thus useful; 2) laws and rules have a political function; 3) there is a community of life and 4) the function of laws and rules is to guarantee social peace. Likewise Dr Karpe conceded that there were a number of challenges: 1) working with disadvantageous groups such as indigenous people, rural women, etc; 2) the status of users’ rights in developing countries and 3) the status of peasants. All these challenges relate to various aspects of vulnerability and deprivation of rights. With this in mind the lawyer must think about how he can have a positive impact on society. In Dr Karpe’s eyes the most suitable way to understand societies and to then be in a position to support them is to conduct extensive research in the field. For example this means using involved, immersed and applied research techniques so that a concrete and continuous contact with the relevant people can be established. Closer to the problem one can feel it. Dr Karpe also stressed that the nature of the field obliges all actors to adopt an interdisciplinary approach and so he works with economists, anthropologists, biologists, pharmacologists, etc, bearing in mind that each person brings his/her own views and perceptions of the situation and that all these views as well as methodologies need to be integrated into one’s work. Does that mean that the lawyer disappears? As Dr Karpe stressed he remains a positive lawyer (one that is trying to find the best solution to a problem that affects people), a humanist (there is no doubt a need for empathy and humility in these circumstances) and a ‘questionnaire’ (a person who asks questions) and thus a ‘wandering lawyer’. In his opinion this ‘wandering lawyer’ has a fundamental political and moral obligation to remember, think, defend and realise the key destiny of a lawyer: social justice. As a result he/she must revise his/her vision of the law, its essence, substance and form. Four main research themes derive from this stance towards law and the role of the lawyer: 1) the commons, the harmony between nature, humanity and values (justice); 2) the nature and the content of the law (juridicity); 3) the tools for implementing the law and 4) the methodologies of knowledge of law. Dr Karpe presented some of the results of his reflection, explaining that the law should not be in the form of specific provisions, that the new ‘Common Law’ should correspond to a right of communion, a transcendental right and that the new Common Law must correspond to an idea, that of a community of life. Under the Common Law individuals enjoy the same rights and there is no hierarchy of rights. That being established, Dr Karpe questioned the way law is created, articulating the idea that law is often crafted by a certain type of persons for a certain type of person and for a specific objective and that consequently law may not be really that ‘common’ in fact.

As Dr Karpe left UWE he had made contact with many colleagues in the Bristol Law School and hoped to be able to involve these colleagues in his work. He proposed to establish an opened think-thank on the Commons, the Wandering Lawyer, Law and the Juridicity, named: “the Rainbow Team”. Discussions were also had about future collaboration notably in the form of common projects relating to the protection of the environment, biodiversity and conflict. It was with regret that we had to let Dr Karpe go back to his work as it was such a pleasure to talk to him on a variety of topics.

Guest Lecture: Dr Jane Rooney: Article 2 of the European Convention on Human Rights in Armed Conflict

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By Noelle Quenivet

On 14 March 2018 the Centre for Applied Legal Research welcomed Dr Jane Rooney, Lecturer at the University of Bristol, to present a paper on ‘Article 2 of the European Convention on Human Rights in Armed Conflict’. Dr Rooney began by explaining that she was challenging the commonly held view that human rights law and the European Convention on Human Rights more particularly subject States to a higher threshold than international humanitarian law.

To support her key argument Dr Rooney took the example of internal disturbances that are not covered by international humanitarian law as they do not reach the required levels of violence and organisation of non-State actors. In such instances Article 2 ECHR becomes of paramount importance. Under this provision force may not be used unless absolutely necessary and so the European Court of Human Rights will examine whether force has been used in a proportionate manner as well as how the operation was planned and controlled. As she explained, Article 2 ECHR contains two types of positive obligations (substantive and procedural) and negative obligations. With regard to negative obligations, Dr Rooney observed that they are never looked at in an extra-territorial context. She added that even in an internal context they are only examined in cases relating to terrorism, high levels of violence and internal disturbances but not armed conflicts. As a result a human rights paradigm is applied because the situation at hands is not one that falls within the remit of international humanitarian law. A law-enforcement perspective is thereby espoused.

Dr Rooney focused her attention on three cases against Russia: Isayeva (2005), Finogenov et al (2011) and Tagayeva et al (2017) as they provided good examples of high levels of violence yet not necessarily falling within the scope of international humanitarian law. The first case relates to the bombardment of civilians leaving the siege of Grozny, the second examines the hostage crisis in a Moscow theatre and the third looks at the hostage take-over of school in Beslan.

In McCann et al the European Court of Human Rights scrutinised the planning of the operation as and applied an honest belief test to establish whether the principle of proportionality had been complied with. Yet, in Armani da Silva (2016) the Court applied a subjective test of proportionality. Dr Rooney argued that it seemed that increasingly the European Court of Human Rights was adopting a rather deferential attitude towards the State. For example in Finogenov it used the margin of appreciation doctrine to allow the State a certain degree of discretion. Usually, the Court sets out the test and applies it. Another exampled used by Dr Rooney was the use of poisonous gas. In Finogenov the Court deemed it proportionate whereas under international humanitarian law such weapons (ie riot control agents) are banned. Dr Rooney pinpointed that whilst political considerations were embodied in international humanitarian law this was not the case of human rights law. Was it however possible that the Court was building political considerations into its jurisprudence?

In an armed conflict paradigm, force will be used and individuals will be killed but the principles of distinction, discrimination and proportionality will set the limits to the use of force. In other words the use of force is intimately related to the designation of people in an armed conflict.  The reason for this is that international humanitarian aims to protect those who are not taking part in hostilities. The principle of proportionality under this legal regime allows for incidental loss of civilian life but only on the basis that it is proportionate to the military advantage. Thus international humanitarian law is more permissive in relation to the lethal use of force.
In Tagayeva the Court appeared to use international humanitarian law to decide on the legality of the attack carried out by the Russian forces with a view to freeing the hostages in the school. After all it did refer to Article 51(4) of Additional Protocol I to the Geneva Conventions and Articles 1 and 2 of the Protocol III to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (Incendiary Weapons) in describing the relevant legal framework. However, it turns out that although the Court mentioned international humanitarian law it did not use it. In fact the Court examined whether the basic principles on the use of force and firearms by law enforcement officials had been complied with. Here the Court examined whether a legal framework was in place on the national level, concluding that it had failed to set the key principles of the use of force as required by the Convention. In fact the Court seemed to focus its attention on the negative obligation of Article 2 ECHR, investigating the planning and control as well as the investigation after the attack. It observed that Russia had failed to take precautionary measures although it was aware that the individuals had travelled to North Ossetia, similar attacks had been carried out and no warning was issued to the school administration. As for the investigation since no inventory of the weapons used was made, the evidence was disposed of summarily, etc it failed to comply with the principles of Article 2 ECHR. Interestingly, as the Court concentrates on issues prior and after the attack it seems that it is using these tools to deter States from using force, stressing the importance of working on prevention and investigation and the need for States to put in place appropriate measures to avoid the recurrence of such unlawful uses of force.

The European Court of Human Rights defers to the state on proportionality of use of force on the grounds that the judiciary is not equipped with the expertise or democratic legitimacy for making such a decision that is vital to national security. An evaluation of the jurisprudence indicates that adopting a human rights/law enforcement paradigm can result in a more permissive regime of use of force than under the armed conflict paradigm.  International humanitarian law should serve as a point of reference for the European Court of Human Rights in ‘internal’ disturbances, especially where the alternative is a more permissive regime of use of force on the part of the state; where politics dictates the characterisation of the violence as a domestic disturbance rather than an armed conflict; as well as its characterisation as internal or transboundary. Dr Rooney concluded by stating that there needs to be further assessment of the cross-section between counter-terrorism and armed conflict regimes in order to clarify our expectations of state behaviour in these difficult circumstances.