Bar Professional Training Course Qualifying Session Dinner

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On Thursday 7th June, the Bar Professional Training Course (BPTC) hosted the annual qualifying session Dinner to mark the end of the BPTC calendar.

Guests included The Hon Mr Justice Warby ( a High Court Judge), Vice Treasurer Gray’s Inn, William Clegg QC, Donna Whitehead and a number of other members of the Judiciary, Inns, Local Bar and Faculty staff.

The atmosphere was formal and yet jolly with the students pleased and relieved to have completed their intensive academic program.

Speeches were from Anna Vigars QC (Head of Guildhall Chambers, Bristol) who offered the students inspiring words of wisdom and from David Forster, BPTC student who offered his amusing and inclusive reflections on the BPTC year. Both speakers were very well received by the audience.

Students and some guests continued their celebrations at the after dinner party hosted by the students at the Square Bar.

Institute of Directors award for Bristol Law School Executive Dean

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Donna Whitehead, Executive Dean of UWE Bristol’s Bristol Business School and Bristol Law School, was named New Director of the Year at the 2018 IoD South West awards.

Leading a team of nearly 300 staff and more than 6,000 students, Donna manages a budget of £55 million. She also leads the work on enterprise across the University. In winning the inaugural New Director award, she was singled out for achieving transformational change for the organisation in an impressively short period of time.

Donna said: “I am delighted to win this award. I’m incredibly proud to lead the Faculty, and enjoy and value working with all our talented staff. This award reflects their great work.”

A total of 14 directors from across the region were shortlisted for the awards, presented yesterday at a ceremony near Exeter. The awards were sponsored by accountants Bishop Fleming, which has offices throughout the South West. Guest speaker was Roy Kinnear, COO of South West-based airline Flybe.

Nick Sturge, South West chair of the IoD, said: “The South West has a well-deserved reputation for creativity, leadership and entrepreneurship. The diversity of awards this year served to demonstrate just this. We had a record number of entries this year so to be even shortlisted was an achievement. I want to congratulate not just our winners but our runners up too.”

All the winners will now go forward for a chance to represent the South West at the IoD National Director of the Year Awards in the autumn.

Pro Bono works: Network For Creative Enterprise

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The second blog in our series on Pro Bono: 

The Business Advice Clinic, one of UWE’s Pro Bono initiative, has been providing legal assistance to the members of the Network for Creative Enterprise over the past academic year. The NFCE is a collaboration between the Watershed’s Pervasive Media Studio, Knowle West Media Centre, Spike Island, and The Guild based in Bath. UWE is also a partner in the Network. In each of the centres, residents have the opportunity to join the NFCE to receive a mixture of support to turn their ideas into economically sustainable businesses, including free work space and a package of business development support. As part of that support, residents from the hubs are able to make appointments with Business Advice Clinic students, supervised by Marcus Keppel-Palmer, Director of Pro Bono.

Marcus said: “the businesses at NFCE are those working in the creative and cultural arena, often at the very outset of their business life, and so many of the questions are around intellectual property protection, putting together terms and conditions of business, and data protection, although we have been asked about all kinds of matters, including regulations affecting drones!”. Clinics have been held at the Watershed, Spike Island and Knowle West Media Centre with plans to venture over to Bath underway. Each client has a one-hour appointment with students taking instructions, undertaking any research and providing assistance as a follow-up.

One of the students on the team, Lucie Wickens said: “these regular drop-in sessions at Spike Island, Watershed, The Guild and Knowle West Media Centre have provided students with excellent exposure of working with clients, and has assisted in the development of start-up businesses (many of which are UWE graduates) across Bristol and Bath. The work I have undertaken on the Business Advice Clinic, through the Network for Creative Enterprise has been invaluable as a discussion point in interviews, and in building my confidence of working with clients.”

Nearly 20 of the residents have so far taken advantage of the sessions. These residents have reported that the advice and the access to advice has been invaluable. One resident said: “Thank you so much for all the support and advice from you and your team. The conversations and the draft contracts you have drawn up have been an invaluable contribution to our development. Without this free service offered through the Network for Creative Enterprise we would have struggled to access let alone pay for legal advice and support of this kind.”

Rachael Burton, one of the NFCE Producers based at the Pervasive Media Studio, said: “It’s been great to work with Bristol Business and Law School at UWE through the legal advice clinics run by Marcus and his students. Having access to free legal advice in a familiar setting has been really valuable to the artists and small creative businesses we are supporting through Network for Creative Enterprise. We look forward to developing this ongoing relationship.”

 

UWE Bristol rated GOLD in Government assessment

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The University of the West of England (UWE Bristol) has been awarded gold status in the latest Government rankings for higher education providers.

UWE Bristol has been recognised with the highest possible rating in the Teaching Excellence and Student Outcomes Framework (TEF) 2018. Gold-standard institutions have provision that is consistently outstanding and of the highest quality found in the sector.

Advancing from the silver rating awarded in 2017, the University has been praised by assessors for outstanding graduate employability outcomes and successful approaches to personalised learning.

The framework led by the Office for Students (OfS) measures the performance of all UK universities and higher education providers based on a wide range of factors including graduate employability, National Student Survey (NSS) results and learning environment.

Introduced two years ago to recognise and reward excellent learning and teaching, the TEF has been designed to help students choose where to study by providing clear information about teaching provision and student outcomes.

In its 2018 assessment, UWE Bristol received recognition for:

* Outstanding performance with regard to sustained employment and graduate earnings

* Students from all backgrounds achieving consistently outstanding outcomes

* Student satisfaction with academic support, and the rate of progression to highly skilled employment or further study, being above the University’s benchmarks

* Outstanding learning resources with extensive facilities for lecture capture

* Successful approaches to personalised learning, with effective support arrangements for specific student groups, that secure the highest levels of student engagement with learning.

Overall, the TEF panel of assessors judged that the combination of UWE Bristol’s performance data and its submission met the criteria for a gold award, which is valid for up to three years.

The University is ranked in the top quartile of all higher education providers in the UK and is among only five universities in the South West to hold gold TEF status.

Professor Steve West, Vice-Chancellor at UWE Bristol, said: “We are absolutely thrilled to receive this gold award. It recognises the importance we place on the student experience and teaching, and how our practice orientated and professionally accredited courses consistently equip our students for graduate level jobs.

“A huge thank you goes to all our staff on what is a very proud day for the University. Their hard work and commitment has made a vital contribution by ensuring students receive the best possible higher education experience.”

The award of a gold rating in the TEF comes one week after UWE Bristol was named in the top 40 of the annual university league table compiled by the Guardian. The University climbed to its highest ever position of 37th out of 121 UK institutions following strong performance in the NSS and an increase in spend per student.

Bristol Law School students bring characters of award winning novel to life in mock murder trial

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On Thursday 24 May and Friday 25 May, students on our Bar Professional Training Course (BPTC) acted as counsel for the prosecution and defence in a two-day mock murder trial on Frenchay campus.

The mock trial was based on the plot of the award winning novel Infinite Sky by CJ Flood.

Infinite Sky, a story about a teenage girl trying to come to terms with the abandonment of her mother when a family of gypsies set up an illegal camp in the paddock by her house, contains a violent death. It is this violent death that was explored in the mock trial.

His Honour Judge Johnson, a Circuit Judge who sits at Isleworth Crown Court, presided over the trial and the witnesses were played by a combination of professional actors, together with amateur actors from UWE Bristol’s Drama School, Law School and a local high school.

CJ Flood, the author, also attended the trial to find out the verdict for for the characters she had created. Read her account of the trial on her blog.

The prosecution

Members of the BPTC teaching team acted as ushers, jury bailiffs and court clerks, whilst the jury was made up of students.

The mock trial was open to members of the public as well as staff and students.

After all the witnesses had been cross examined and re-examined, the two day trial culminated in closing speeches from both sides before the jury went out to make their decision. Returning after an hour or so, they found the defendant not guilty of murder.

The trial was an incredible learning experience for our students and gave them the opportunity experience first hand what a real trial would be like.

Thank you to everyone involved who helped bring Infinite Sky to life for the purpose of the trial and a massive thank you to CJ Flood for agreeing to let us host the trial.

 

UWE Bristol climbs into top 40 in latest Guardian league table

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The University of the West of England (UWE Bristol) has climbed to its highest ever position in the Guardian university league table. Moving up 15 places, the University is ranked 37th out of 121 UK institutions in the newspaper’s latest annual guide for students.

Continued strong performance in the National Student Survey (NSS) and an increase in spend per student have helped the University break into the top 40 in the 2019 guide.

Three subject areas, Education, Film Production & Photography and Philosophy, have been ranked in the top five nationally while Architecture earned a place in the top 10.

UWE Bristol has been ranked 12th in the country for its value-added score, which compares students’ degree results with their entry qualifications to show how effectively they have been taught, and 26th for satisfaction with teaching.

The Guardian league table focuses on the quality of teaching, student satisfaction and employability. Compiled by independent company Intelligent Metrix, the guide ranks universities according to: spending per student; the student/staff ratio; graduate career prospects; what grades applicants need to get a place; the value-added score; and how satisfied final-year students are with their course, based on results from the annual NSS. For the first time this year, the newspaper has included a continuation score based on the percentage of first-year students continuing to a second year. The overall Guardian league table is accompanied by subject rankings, showing how universities perform across 54 areas of study.

It is the third consecutive rise up the Guardian table for UWE Bristol, which has also performed strongly in the Complete University Guide and The Times and Sunday Times Good University Guide.

Professor Steve West, Vice-Chancellor at UWE Bristol, said:

“This represents a giant stride forwards for our University and it is immensely pleasing to receive recognition for our continued progress in this national guide. Our rise in the table is richly deserved and testament to the tremendous efforts being made by our staff to ensure the student experience is at the centre of everything we do.”

Dr Zainab Khan wins at the Bristol Diversity Awards 2018

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Dr Zainab Khan picked up the award for Positive Role Model (Race / Ethnicity) at the 2nd Bristol Diversity Awards event on Saturday 18th May at the Mercure Holland Hotel & Spa.

Zainab was nominated for her work on the UWE Bristol Equity Programme.

Equity is a positive-action talent development programme aiming to improve BAME graduate outcomes  through identity coaching, enterprise education and large networking events.

It marks a major departure from traditional diversity practice in Higher Education, and has received  positive reception from external observers and city commentators for its innovation. You can find out more about the Equity Programme here

Prior to the event Zainab was interviewed for ITV’s local news to discuss the upcoming awards

Attending the awards were Equity student committee members, Donna Whitehead (Executive Dean & Pro Vice Chancellor), Dr Harriet Shortt (Associate Professor Bristol Business School), Mena Fombo (Motivational Speaker and Equity Programme Coach) and Alex Mormoris, former colleague and key member of the Equity Programme staff.

Congratulations to Zainab and the Equity team on this impressive achievement.

Bristol Law School host mock law trial based on award winning novel

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On the 24th and 25th May the Bristol Law School will be hosting a unique mock trial based on award winning novel by C.J. Flood.

Infinite Sky, a story about a teenage girl trying to come to terms with the abandonment of her mother when a family of gypsies set up an illegal camp in the paddock by her house, contains a violent death. It is this violent death that will be explored in the mock trial.

The trial will be conducted by HHJ Johnson, a Circuit Judge from Isleworth Crown Court. The defendant will be prosecuted and defended by teams of students on the Bar Professional Training Course. The witnesses will be played largely by a mixture of professional actors and undergraduates from the Drama School and the Law School.

Author of the book C.J. Flood, will be attending the trial to see hear the verdict cast for the character she created.

The mock trial is open for all to attend. Please see below for the details:

Venue: 2X112, Bristol Business School, Frenchay Campus, UWE Bristol

Timings: 10am – 5pm and 9:30am – 2:30pm

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.