From prisoner to paralegal: Morris Kaberia tells his story

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Lawyer and activist, Morris Kaberia, recently came to visit students at UWE Bristol to speak about his story of justice. After suffering an unwarranted 13 years, 5 of which were spent on death row, in Kamiti High prison, Morris was set free. With help from African Prisons Project, a programme that UWE Bristol Law students support through our Pro Bono unit, Morris studied for a Law degree whilst he was in prison and was able to use his newly learnt knowledge to fight his case for which he was wrongly accused.

Morris visited the University on Monday 10 February 2020 to deliver a talk to our students about his journey, experiences and advice. You can listen to the full talk recorded as a podcast.

Kathy Brown, Senior Law Lecturer, oversees the student participation in the African Prisons Project programme. She said: “Studying for a law degree has enabled the prisoners to gain a higher level of education, act as paralegals for other inmates and represent themselves in court. Many of them are given extreme sentences for relatively small crimes, such as being given death penalty for aggravated burglary, and are on remand for several years.”

In his impactful visit to UWE Bristol, Morris spoke about the importance of the project and how it inspired a new lease of life within himself and his fellow prisoners. He greeted current Law students to enforce the need for students to continue working with this project, and he also reconnected with students who helped him whilst he was in prison which was extremely powerful and emotional.

Morris was interviewed after his talk which you can watch below. Please note: Morris went to Kamiti prison, not community prison as mentioned in the subtitles.

If you would like to know more about our Pro Bono Unit please contact fblclinic@uwe.ac.uk.

Using as the Starting Point the Article ‘WTO Rules against EU “Anti-Dumping” Duties on Indonesian Biofuel’ by Natasha Burton in New Economy on 26 January 2018, Discuss the Use of Anti-dumping Measures by the EU on Biofuels

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Written by Chloe Barratt

This post (edited for publication) is published on our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. Following the blogging success over the last couple of years, 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 Noëlle Quénivet. Using innovative learning and teaching methods, Noëlle developed this module 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.

Anti-dumping duties are additional charges imposed by a state in response to the dumping of products into the ‘commerce of another country at less than the normal value of the products’ (Article VI GATT). They are a means of neutralising unfair trade practice, allowing states to protect their domestic industry if the dumping is having a negative effect on their economy. This blog will discuss how the European Union (EU) imposes anti-dumping measures on biofuels, a renewable source of energy that until recently was seen as an attractive alternative to fossil fuels. I will discuss how the issue that lies at the heart of the dispute with anti-dumping measures is, as Burton’s article highlights, how the extent of dumping is calculated. After examining the implications of anti-dumping measures, I will conclude that they are necessarily used to neutralise unfair trade practice and maintain economic and social stability within the EU.

Process of Bringing an Anti-dumping Measure

To ensure anti-dumping duties are imposed to counteract unfair trade practice, the process of imposing duties is heavily regulated. Accordingly, Article 1 of the  Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (ADA) requires all investigations to be initiated and conducted in accordance with the provisions of the ADA. Whilst the World Trade Organisation (WTO) does not regulate the initial act of dumping, it is responsible for regulating the process a state must follow when initiating an anti-dumping measure. If, for example, the EU believes products are being dumped into its market it must first be able to show that the dumping is taking place. In doing so it must be able to calculate how much lower the export price is in comparison to the home market price and show that it is causing injury or threatening to do so. The high threshold for establishing the injurious effect of the dumping accompanied by an investigation (see Article 5 ADA) seeks to ensure that anti-dumping duties are used productively.

Why Calculations of Anti-dumping Measures Have Proven Problematic

Whilst the process of imposing an anti-dumping measure is well regulated, the element of calculating the extent of dumping was highlighted as problematic in Burton’s article. As the EU explains in the Commission Implementing Regulation 2018/1570, following the rulings in Indonesia and Argentina (see para 8), the method of calculation has now been clarified in light of the ADA (for the original reports of the dispute settlement body, see Indonesia (DS480) and Argentina (DS473)). 

The dispute between the EU on the one hand and Argentina and Indonesia on the other (see history here) follows a number of WTO challenges to anti-dumping measures (see discussion in Crowley and Hillman, ‘Slamming the Door on Trade Policy Discretion? The WTO Appellate Body’s Ruling on Market Distortions and Production Costs in EU-Biodiesel (Argentina) (2018) 17 World Trade Review 195-213) where the underlying issue was how authorities adjusted the prices of exporting producers. For example, when constructing a home market price for Argentine biodiesel, that is the price of which biodiesel was sold in Argentina, the European Commission chose to alter the price of soybeans to compensate for the distortion in soybean prices, caused by an export tax imposed by the Argentine government (see Crowley and Hillman, at 2).  The price was adjusted based on the fact that soybeans, the primary input of biodiesel, were considerably below the international price and the Commission reasoned the adjustment was what ‘would have been the price paid… in the absence of the export tax system’.

The dispute with Indonesia was similar in the sense that it also involved a problem with  calculations: the EU had replaced the actual price of crude palm oil that was within the producers’ records with an international reference price. The price of the palm oil was lower than international prices, which meant the EU imposed higher duties on Indonesia in response to what they calculated the extent of dumping to be. When deciding on the trade disputes in the cases of Indonesia and Argentina, the Dispute Settlement Body for the WTO found the EU had indeed acted inconsistently with both GATT 1994 and ADA.

Therefore, whilst there has been a period of uncertainty in calculating the extent of dumping, this imperfection has now been clarified by the WTO. The clear guidance now states that countries are not legally permitted to take government manipulated price control into account.

Social and Economic Stability 

Since the WTO cannot regulate the act of dumping, the ability for a state to impose ‘remedial and not punitive’ measures in response to dumping are essential to nullify unfair trade practice. The measures imposed by the EU on biofuels have been used to counteract the great harm that dumping poses to the economic and social stability of the EU. 

Biofuels being dumped into the commerce of the EU not only disrupts the trading of the fuels but also distorts the standard value of the commodity. EU producers are faced with unfair competition and in considering the vast difference in Indonesia’s access to the raw materials used for biofuels (i.e. palm oil) in comparison to the EU’s access,  the EU could not physically be expected to meet the competitors’ low price without a substantial economic loss. The subsequent effect on the domestic economy could see a closure in business and vast unemployment, which the EU is able to avoid with anti-dumping measures.

Conclusion

In summary, anti-dumping measures by the EU have been imposed to minimise the economic disruption caused by the dumping of biofuels. Whilst the EU was found to have miscalculated the extent of dumping, this was recognised and rectified by the WTO dispute settlement mechanism which in turn acknowledged the lawfulness of anti-dumping measures as such. Overall, these measures have been used productively to counteract unfair competition. 

Law Student of the Year awarded to Sam Louwers

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Congratulations to final year UWE Bristol Law student, Sam Louwers, for recently becoming Law Student of the Year at the Bristol Law Society awards 2019. Sam was nominated by Shilan Shah-Davis, Associate Head of Department, UWE Bristol, on behalf of the Law Department.

The Law Department started working closely with Sam last year through his involvement with the UWE Law Society. Sam was ‘made-up’ by Shilan’s submission and says it has been the proudest moment of his time at UWE Bristol so far.

“Sam is a highly motivated, hardworking, forward-thinking and compassionate individual with a strong commitment to the values of inclusivity, diversity and justice. Through his work in the UWE Law Society and involvement in other projects, Sam truly stands out as a champion for inclusion and diversity and an inspirational leader. Sam is very highly thought of within the Law Department and his values and commitment emulate all that UWE Bristol is seeking to achieve for its students.

Sam winning the Bristol Law Society Student of the Year Award is absolutely fantastic and very well-deserved. His passion, drive and commitment are truly inspirational and he is a great role model and ambassador for UWE Bristol.”

Shilan Shah-Davis

Interestingly, Sam’s career started in the Armed Forces, however, that abruptly ended in 2017 when he was medically discharged due to two injuries. Sam says, “I had always had an interest in Law but I never thought that University was where I would end up and never thought that I would be good enough to take that path.”

He joined UWE Bristol after getting medically discharged and has gone from strength to strength from becoming the President of the UWE Law Society to push for a more diverse representation of students, to being awarded the Vice Chancellor’s Award for Representation at the Student Experience Awards in 2018.

In his spare time (amidst caring for his young daughter and family life), Sam also works for the Royal British Legion, running the Poppy Appeal in his local area and supporting the national media team. He says that the Royal British Legion have been instrumental in helping him deal with his injuries. Once Sam finishes his degree he hopes to do his Barrister Training here at UWE Bristol to start his career as a Criminal Barrister alongside Pro Bono work and giving back to others who need help within the Armed Forces Community.

Sam’s dedication and determination prove he was a worthy winner for Law Student of the Year and UWE Bristol are proud to have him as a student here. After the awards ceremony, Sam said “speaking to the selection committee and senior lawyers in Bristol, and hearing the kind comments that they had given me, the congratulations, and how much they admired the dedication that I had put into my degree – especially with the disturbance in my background, felt really worth-while, and I felt privileged to be recognised.”

Find out more about studying Law at UWE Bristol on our website.

On the Basis of the 17 December 2018 Request of Consultations by the EU with Korea Regarding the Implementation of the Sustainable Development Commitments under the EU-Korea Trade Agreement, Discuss how Labour Standards can Be Maintained via Free Trade Agreements

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This post (edited for publication) is published on our blog as part of a series of work produced by students for assessment within the module ‘Public International Law’. Following the blogging success over the last couple of years, 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 Noëlle Quénivet. Using innovative learning and teaching methods, Noëlle developed this module 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.

By Anita Dangova

Introduction

The social ambition of the European Union to enforce and maintain sustainable development commitments has led to a radical increase of the incorporation of the International Labour Organisation’s (ILO) labour standard conventions into European Union (EU) free trade agreements (FTAs) with third parties over the past two decades (at 265). In this blog post, I will show that labour standards can be effectively maintained via FTAs through a system of consultative measures. Although such a system can be criticised for being a ‘soft’ mechanism of dispute settlement it has proven successful to enforce labour standards agreed upon in FTAs between the EU and States.  Using the recent consultations request by the EU regarding the failure of implementation of sustainable development provisions by South Korea as a case-study, I will particularly highlight how this soft resolution mechanism works with developed and developing states.

The EU’s Approach to Resolving Disputes

The EU ensures that disputes related to maintaining the ILO’s labour standard conventions in its FTAs are resolved through a cooperative and soft dispute resolution mechanism (Postnikov & Bastiaens, ‘Does Dialogue Work? The Effectiveness of Labor Standards in EU Preferential Trade Agreements’ (2014) 21 JERR 923, 925). This stands in contrast to the direct sanctions system used by the US as, in case of a dispute between the EU and a non-member state regarding failure to apply an FTA’s labour standards provisions, consultations are usually a pre-condition (Postnikov & Bastiaens). The table below explains the EU’s idea of resolving a dispute in a fair, friendly and equal-party manner by consultations, and not sanctions. That is why, in my opinion, the FTAs’ consultations system can be effective in maintaining labour standards’ provisions.

Why consultations?
They are known as means of peaceful dispute settlement, as well as a tool towards a proactive work of both the parties (see Peters, ‘International Dispute Settlement: A Network of Cooperational Duties’ 
(2003) 14(1) EJIL 1, 2).
The consultative measures encourage a flexible resolution process, 
where parties have control over the procedure, being able to set the rules, 
manage the time and conduct in a way they deem most appropriate (at 9).
However, as stated by the International Court of Justice, consultations are to be conducted by the parties in a meaningful way with a view to agreeing in good faith (para 85).
Therefore, they are not used as a tool of showing the power of one party, for example the EU, over a weaker party, for instance South Korea. 
This method means that  the dispute is explored within its context. 
This ensures that the parties are more likely to comply with the relevant agreement in pursuing the common goals of the parties. 

© Anita Dangova

How Does that Work with Developed States? 

A good example to show how such a mechanism works is the recent discussions held in the framework of the EU-South Korea bilateral FTA. Indeed, a recent consultations request was made by the EU after establishing that Korea had failed to ratify the ILO conventions regarding the right of freedom of association and collective bargaining.  Under article 14.3(1) of the FTA, either party can commence consultations, which are to be conducted in good faith and ‘with the aim of reaching mutually agreed solution’, when there is an issue regarding the implementation of the ILO labour standards, as defined under Chapter 13. Under article 14.4, unsuccessful consultations would initiate an arbitration procedure, leading to further costs, delay of settlement and intensified pressure. These consequences, therefore, can encourage Korea to ‘change its behaviour’ at the consultations, by acting in a meaningful way and eventually ratifying the labour standards, which the State is legally bound by the agreement to do. 

Another example is the EU-Canada Comprehensive Economic and Trade Agreement (CETA) agreement under which matters, related to the implementation of labour standards, can be resolved with a recourse to consultations’ request, with the objective to reach a ‘mutually satisfactory resolution’ (article 23. 11). Therefore, we can see that the EU FTAs generally encourage maintenance of the labour standards provisions through soft dispute settlement mechanism, incorporating consultations. This additionally shows that the mechanism’s effectiveness in encouraging developed states to ratify the labour provisions, which they agreed to be bound by, is considerably recognised both in the law and in practice. 

What about Developing States?

Under article 50 of the Cotonou Agreement, the parties, i.e. the EU and African, Caribbean and Pacific countries, reaffirm their commitment to enforce the application of five core ILO labour standards conventions (Abolition of Forced LabourFreedom of AssociationCollective BargainingNo DiscriminationAbolition of Child Labour.) The first step of ensuring the effective implementation of article 50 is to conduct a political dialogue (article 8). This again reflects the EU’s idea of soft, yet effective, cooperation. When all options of dialogue are exhausted, the parties can commence diplomatic consultations (article 96(2)(a)). The provision expressly states that the consultations shall be conducted in a manner, appropriate to find a solution. In case of a failure to find a solution, ‘appropriate measures‘, such as compensation, can be taken. Aware of the subsequent pressure, which will be caused by those measures, the developing states will seek to avoid paying compensation and will thus after the consultations be incentivised to ratify the relevant labour standard conventions. That is why it can be argued that the consultations mechanism, adopted by the FTAs, is an effective way of maintaining labour standards in developing states. 

The first stage (at 25) of labour standards dispute settlement is the following:                  

Statistics Never Lie 

© Anita Dangova (based on information provided in Reich, The Effectiveness of the WTO Dispute Settlement System: A Statistical AnalysisEUI Working Papers, Law 2017/11)

To assess the effectiveness of consultations more generally we can consider the WTO’s dispute resolution system as set out in article 4 of the Dispute Settlement Understanding. In case of a dispute between two member states, either one is capable of initiating a consultations request.  Between 1 January 1995 and 31 December 2016, the system has dealt with 573 requests for consultations. Out of this number, it has issued about 350 mutually agreed dispute settlement decisions (see Reich, The Effectiveness of the WTO Dispute Settlement System: A Statistical AnalysisEUI Working Papers, Law 2017/11, at 4). Therefore, this constitutes a strong evidence that consultations are generally an effective way of settling disputes in the field of economic law.  

Conclusion

In this blog post I have argued that the FTA consultations mechanism is an effective way of ensuring the implementation of labour standard commitments, based on the EU soft consultative dispute resolution system. I have, furthermore, showed that this system works with developing and developed states, basing my analysis on examples such as the Cotonou, EU-South Korea and CETA agreements. 

Pro Bono at Bristol Law School: Video

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UWE Bristol Law students speak about the benefits of taking part in Pro Bono activities.

The Pro Bono Unit enables UWE Bristol Law School students to provide free legal advice services to members of the community. We have spoken to several students about their experiences of getting involved in Pro Bono.

Here’s what they had to say:

“For my career it has helped me get work experience. I think that being involved in Pro Bono will give you that confidence to put that on your CV and when law firms can look at you being involved, they definitely would want to take you on and give you some more experience because they trust in you.”  – Manmeet Singh, Law Student

“When I was at UWE I got involved in an organisation called Street Law which is a programme that goes to help teach younger children the basic of laws. So, we would be teaching them things like civil and criminal law, the advocacy process and just a general introduction to studying law.” – Isaac Cole, Trainee Solicitor 

“It helped me build my confidence as before I couldn’t really speak in front of a group of people and now I’m accustomed to holding events of upwards of 300 people.” – Freya Whiting, Law Student

“The Pro Bono experiences I’ve done has helped me for my career in a sense that it’s developed my confidence when being in an interview situation. It’s also helped in a sense that it’s helped me further understand why I want to pursue this career.” – Rory Jutton, LPC Student

“I would recommend students to do Pro Bono activities or get involved with Pro Bono. The main reason is employability, you can’t really put a price on that – it’s invaluable experience, it’s satisfying and it’s incredibly rewarding.” – Dominik Morton, Pupil Barrister

If you would like to know more about Pro Bono at UWE Bristol please visit our webpage.

UWE Law Society London Trip 2019

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The UWE Law Society reports on its recent trip to visit Parliament, the Supreme Court, and The Inns of Court.

Guest post by: Sam Louwers, President of  UWE Law Society
The opinions expressed by the guest writer and those providing comments are theirs alone and do not necessarily reflect the opinions of UWE Bristol.

The 18th February began very early in the morning for 50 members of UWE Law Society who had secured places to take part in our London Trip 2019. The aim of the trip was to move 50 members to London to visit Parliament, The UK Supreme Court and attend a talk delivered by Lincoln’s Inn.

It had been the intention from the offset that all society members should feel in a position to apply for a ticket, regardless of their personal circumstances, so the price should be free. Through applications to both the faculty and student’s union enough funding was secured to pay for the coach move meaning that all were in the same position to apply for a ticket.

We left UWE at 0530 to move to Westminster, for a change a very painless journey. Once arriving the trip was split down into two tranches; one detailed to Parliament and one the Supreme Court.

Those who toured Westminster had a unique opportunity to gain an understanding of the history of the building, visit both chambers and have explained the full process of how a Bill becomes an Act. With a passionate tour guide this element was enjoyed by all and was an opportunity that many had never experienced, and I am sure that many students would have left feeling they have a confident understanding of our constitution.

Tranche 2 began their day visiting the Supreme Court. A newer building in the history of the court system, but still bathed in history from its previous role. The group had the opportunity to explore the building whilst also have its purpose and history explained to them by their tour guide. With some fantastic photo opportunities, members even had the opportunity to sit in the seat of a justice and experience the true feel of the court room. Unfortunately, Parliament were holding an emergency debate in the afternoon so Tranche 2’s tour had to be cancelled.

Then a surprise to all when we were notified that Lady Hale, President of the Supreme Court, had heard that UWE students were visiting so was giving up her lunch break to meet with us and run a Q&A session, as I am sure all readers will appreciate this is a fantastic and privileged opportunity.

Meeting with Lady Hale was an experience that many students will never experience again, but you could tell that she was more than happy to give up her time to pass her knowledge and experience onto those young minds who have a passion to progress into the legal profession.

The final part of the day saw a move to Lincoln’s Inn where we were hosted by Andrew, their outreach Co-Ordinator. Unfortunately, the talk had to be held slightly down the road in their office and conference space as the Inn itself is currently undergoing major renovations, yet still a great environment to visit. Andrew gave a talk to the society members about what the purposes of the four inns of court are, their history and how they play a key part to anyone looking to progress to a career at the bar. He also took the time to discuss the vast range of scholarships available and in doing so demonstrating that there is financial support available to those who need it.

Lincoln’s Inn also paid for Sally Anne Blackmore of Ely Place Chambers to come and talk to our members. Sally is a former UWE Alumni and prominent member of the Inn, often involved in the residential and qualifying sessions that are run. As a former Alumni Sally was keen to talk to our members about her non-traditional route to the bar and her vast experiences surrounding the profession. Not only did she inspire members she was also happy to hand out her contact details should members want to seek further guidance.

The day ended with the journey back to UWE, getting in at 2230. After a long day I think I can honestly say that every attendee was able to get something special from the day and I have taken the time to thank every element of the trip personally for making it possible. If it wasn’t through keen networking and producing a positive image of UWE Law Society this trip would never have been possible. Dr Liam Fox MP was happy to support our tours, Lady Hale gave up her time and Lincoln’s Inn gladly hosting us at their location is proof that UWE Law Society have built a positive and strong reputation in the last year. We also thank UWE Law Department and the Students Union at UWE for their kind donations, as without them we would not have been able to meet our aim of making this trip open and accessible to all and by doing so we met our equality and diversity targets.

Although coming to the end of our term as a committee I am sure that now the ground work has been laid so future committees will be able to offer these fantastic opportunities to their members also.

Sam Louwers
President
UWE Law Society

Pro bono: Student reflections from the African Prisons Project

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One of the many activities the UWE Pro Bono Unit undertakes is the African Prisons Project. The project sees UWE students assisting prisoners and prison warders during their Law studies in Uganda and Kenya. Kathy Brown has previously blogged about the project here. In this post, student Kelly Eastham provides an update on an inmates sentence.

by Kelly Eastham

It has been a long time that I have been waiting to write this and awaiting this news itself, but not nearly as long as it has been for Wilson. I am completely overwhelmed to have received news today that Wilson (an inmate from Kamiti Prison, Kenya) has been released after winning his case in the Kenyan Supreme Court. Wilson was imprisoned at the age of 19 and sentenced to death, he has since served 20 years for robbery, a punishment not proportionate to his crime.

During my time in Kenya I grew close with Wilson. I was completely amazed by his beautiful perspective on life and his motivation to help other people in his situation. Prior to working in a “death row” environment, I had always thought that these people will have nothing to live for and will become the worse version of themselves as they have no reason or motivation to turn their life around. I was completely wrong and Wilson was one of the first inmates to totally shift my perspective on this. He showed me that it is never too late to make a positive change and if you keep fighting for it anything is possible. His case in the Kenyan Supreme Court (Coram: Maraga CJ & P, Mwilu DCJ &VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ) will be monumental in Kenyan history as the one which abolished the death penalty and will have a significant knock-on effect for the lives of thousands. Wilsons motivation to be a changemaker has not come from a place of selfishness but from wanting to be able to make a difference.

I was asked by Wilson to attend his trial to support him, I remember walking into the High Court and awaiting the judges decision, this decision stated that Wilson had been successful and won his case. I remember going down to the cells under the court house and spending time with him celebrating his success. I felt so emotional to have been a part of his trial and I am so blessed to have been there to support him.

Wilson and his story have inspired me so much and I am honoured to have played a small part of it. I will forever be grateful for the life lessons he has taught me and for inspiring a huge passion within me. I will be wishing him all the best in the outside world and I will be there to support him though it. 

Bristol Law School’s Thomson Reuters Legal Student Representative awarded First Place Award at the annual Thomson Reuters Conference

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2nd year Law student Anita Dangova has been named First place at the annual Thomson Reuters Conference for the work she has achieved this year as a Thomson Reuters Legal Student Representative (TRLSR).

As a TRLSR, Anita organises different Westlaw workshops and sessions to help her fellow students achieve the best results possible.

As part of her role, Anita has worked closely with the Bristol Law School librarians to produce customised workshops and sessions for our students currently involved in the African Prisons Project (APP).

The APP offers high quality, accessible legal services to the most marginalised communities in East Africa through their training and leadership programme.

They operate in partnership with those who live and work within the justice system – from prisoners, to prisons staff and the judiciary – to those in government and other agencies, with individuals and organisations, towards a common goal, ensuring that everyone has access to justice.

Anita and the School Librarians have helped the APP Research Associates conduct their research effectively, using Westlaw. The research can be exported and shared with the group leaders from the APP which may be the first steps towards an African prisoner’s freedom.

Congratulations to Anita for the award and congratulations to both Anita and the Law School Librarians for a great collaboration!

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?

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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: 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.