Month: February 2024

Spotlight Feature: Engage with the UN Special Mandate Holder on Arbitrary Detention Dr. Matthew Gillett

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By Dr. Katya Alkhateeb

This is a post originally published by the Essex Human Rights Centre Blog on February 12th, 2024.

Mexico Country Visit of the Working Group in September 2023

Spotlight regularly features a significant individual or team from the Human Rights Community to answer questions put by students and colleagues from the University of Essex. This time we feature Dr. Matthew Gillett.

Dr. Gillett was appointed as a United Nations Special Mandate Holder in 2022. Specifically, he is the Expert Member from the Western Europe and Others Group in the Human Rights Council’s Working Group on Arbitrary Detention. In 2023, he was elected Vice-Chair for Communications of the Working Group. In this role, he cooperates with other Special Mandate Holders (typically the Special Rapporteurs on Torture, on Extra-judicial Killings, and on Counterterrorism, plus the Working Groups on Forced Disappearance and on the Elimination of Discrimination against Women and Girls); to issue communications to Governments and other entities (such as corporations) regarding potential human rights violations. As a member of the Working Group on Arbitrary Detention, he deliberates around 80-90 judgments (called opinions) a year and also conducts country visits to scrutinize detention practices around the World.

Previously, Dr. Gillett has around 15 years of experience working in international organisations in The Hague (particularly as a prosecution attorney at the International Criminal Court (“ICC”) and the International Criminal Tribunal for the former Yugoslavia (“ICTY”)). He has conducted investigations in various conflict zones, including for six months as a Human Rights Officer with the United Nations Assistance Mission in Afghanistan (“UNAMA”). 

Academically, his work encompasses: International Criminal Law; Human Rights; Terrorism and Counterterrorism; Procedure and Evidence; Open-Source investigations; the Environment; International Humanitarian Law; Mediation (as a qualified mediator); Speech Crimes; and Aggression. His publications have been cited before international and hybrid courts, including in filings and Decisions of the Colombia Special Jurisdiction for Peace (“Pre-Report on Charging Environmental Damage before the Jurisdicción Especial para la Paz”); the International Criminal Court (e.g. “Collective dislocation; crimes of displacement, property depravation and discrimination under international criminal law”, Routledge; “The Call of Justice: Obligations under the Genocide Convention to Cooperate with the International Criminal Court”, CLF) and the Special Tribunal for Lebanon (e.g. “Fast-Track Justice”, JICJ; “The Special Tribunal for Lebanon Swiftly Adopts Its Rules of Procedure and Evidence”, JICJ).

Students’ and colleagues’ questions answered

We are honoured that Dr. Gillett agreed to answer questions put by the human rights students and community at Essex.

Q: What initially drew you towards human rights?

A: Working at the High Court of New Zealand exposed me to various human rights cases, from freedom of expression claims to complaints of ill-treatment in detention. Learning about the substance of human rights, and the effect of international conventions on the application of domestic law was fascinating. 

Q: How do you believe the efforts of the Working Group on Arbitrary Detention can help address criticisms of the UN’s human rights work?

A: The Working Group on Arbitrary Detention strives for fair conclusions and innovative ways to enhance human rights compliance. One of the important ways we can reduce criticism is through robust fact-finding. We have five expert members, with a range of experiences and backgrounds. Our individual cases are subjected to rigorous review, while also ensuring that we address a high volume each year. We also travel to countries to assess their detention systems and meet with detainees, officials, and NGO representatives, all of which helps us to reach well-grounded findings. 

Q: What advice would you offer aspiring human rights workers?

A: Gain field experience early, explore alternative avenues for redress, and follow up on cases to understand their outcomes comprehensively. In more detail: (i) Get field experience at an early stage – it will open your eyes to the situation on the ground and whether you are well suited to that type of work. (ii) Think about your options in any situation, such as new avenues or fora to redress a human rights violation, and don’t simply accept binary choices that are presented to you. (iii) Follow-up on situations you have been involved in – if you assisted a victim with a human rights claim, then get back in contact periodically afterwards to find out how it panned out. 

Q: How can we assess the effectiveness of human rights measures such as issuing communications?

A: Tracking responses and subsequent actions by governments is essential. Effective engagement with international bodies like the UN can amplify pressure for change. An obvious case is if the Government or entity in question explicitly changes their conduct as a result of the communication. However, in many cases that won’t happen, at least not instantly. So the first step is keeping a track of communications and responses, the second is assessing to what extent the response engaged with the issues, and the third is considering follow-up measures such as public statements or bringing pressure through international fora like the United Nations Human Rights Council or General Assembly. 

Q: Considering the allegations against the US and UK regarding torture in Iraq and Afghanistan, and their reluctance to allow ICC investigation or hold themselves accountable, what message do the actions of powerful states convey regarding accountability for human rights violations?

A: Reluctance to engage with international institutions sends a discouraging message globally, undermining the universality of human rights principles. Just like international human rights law, international criminal law is designed to apply universally. The lack of commitment to institutions like the International Criminal Court by powerful States including Russia, China and the USA sends a dispiriting message to the people of the world – especially given that the crimes listed in the Rome Statute, such as aggression, genocide, crimes against humanity and war crimes are lowest common denominators, which all States should agree to prohibit.

Q: What are your concerns regarding the existing framework of the working group, and how can it be improved?

A: Balancing increasing caseloads with broader advocacy efforts poses challenges. For the future, it would be ideal to have increased resources for the OHCHR team which supports the expert members of the Working Group. 

Q: In your role as Vice-Chair for Communications of the Working Group, what strategies do you employ to foster collaboration among Special Mandate Holders and issue effective communications to address potential human rights violations? 

A: Collaborating with other Special Mandate Holders is a highlight of the work, but of course can present its own challenges in terms of coordination. Typically, a strategy is to have a lead mandate in charge of a particular communication, and then others to review and sign onto it. We have also started having more regular meetings and exchanges on particular hot-spots which raise issues for multiple mandates, so that we are communicating with each other and exchanging information and views in order to enhance our understanding of the situation.

Q: Having worked as a prosecution attorney at the ICC and the ICTY, how do you draw on your experiences in conflict zones to contribute to the Working Group on Arbitrary Detention? 

A: As a former prosecutor, I am used to looking through statements, documents and other sources to reach factual conclusions. Having worked in multiple situations of armed conflict, I am aware of security requirements but also know the importance of seeing situations and speaking to people first-hand to establish events. Additionally, there is considerable overlap between arbitrary detention and the crimes I prosecuted, which helps for legal assessments. 

Q: Can you share insights from your academic work and its relevance to human rights advocacy?

A: My research has recently focused on fact-finding. This has spurred me to look at the procedures employed at various human rights bodies, and what types of materials they base their findings on. Legally, the context of armed conflict or terrorism type scenarios helps to understand when there may be different considerations to bear in mind when assessing the application of international human rights law.

Q: Given that your work exposes you to stressful and harrowing experiences and stories, how do you cope with these challenges? 

A: When I am interviewing a victim or visiting a crime scene, my focus is usually on forensic details and ensuring an accurate record, as well as the safety of everyone involved. However, I realised after many years of working long hours that you have to look out for your own well-being as well. Now I exercise reasonably often and enjoy catching up with friends and colleagues from around the world when the opportunity arises. I also have two young children to keep me on my toes.

Russian Bans on ‘FakeNews’ about the war in Ukraine: Conditional truth and unconditional loyalty

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Dr Elena Sherstoboeva, Lecturer at the Essex Law School

This week marks the second anniversary of the full-scale Russian invasion, which began on the 24th February 2022, and coincides with the death of Russian opposition leader Alexei Navalny. This war is a terrible tragedy for all Ukrainians and poses a serious challenge to European and global security and stability. However, it is also a disaster for Russians and Russia’s democracy and freedom of expression. In my research article, Russian Bans on ‘Fake News’ about the war in Ukraine: Conditional truth and unconditional loyalty, I explore the role of the Russian judiciary in framing the public debate and public ‘truth’ on the war against Ukraine within Russia. Published in one of the globally leading academic journals in communication studies, International Communication Gazette, the paper presents the analysis of over 500 Russian court decisions against the so-called ‘fake news,’ or ‘lies’ about the invasion.

Although according to public survey polls, most of Russia’s population support Putin’s decisions on Ukraine and the actions of the Russian army in Ukraine, it is not entirely clear whether they support the actual war in Ukraine or the myth about it constructed and amplified by the Russian courts, as can be seen from my article. The paper shows how the courts ‘condition’ the accuracy of any information on matters of public interest, including the war, on the official position of the Russian government. The Russian courts use the so-called fake news law adopted in Russia mainly to counteract COVID-19 to establish a state-run monopoly over the pubic debate within Russia, to amplify state misinformation on the war and to punish dissenting Russians.

Through discourse analysis, I was able to uncover the prevailing narrative surrounding the war. The dominant theme emerged in judicial interpretations of conditional truth. My paper details how courts construct a misleading narrative about an imaginary war, presenting it as a peacekeeping special military operation that causes minimal harm to both Russians and Ukrainians. According to this storyline, Putin leads the operation only to protect ethnic Russians and de-Nazify Ukraine. The courts manipulate international legal standards to make it create an illusion that the operation is fully aligned with them. Additionally, my analysis exposes how Russian courts twist the notion of “national hatred” to label Russian dissenters as haters of Russia and all Russians. The courts weaponise foreign news media outlets and discourage the spread of fake news, warning the public of the dangers it poses.

A historical perspective allowed me to demonstrate that the modern Russian approach is not new and reflects the Marxist-Leninist principles of ‘partyness’, ‘objectivity’, and ‘scientificalness’ that were used in Soviet Communist Russia to guide mass media practitioners. In the article, I explain the meaning of these principles and highlight the significant differences between them and the universal standards for professional journalism. The Soviet concept of ‘objectivity’ implied biased and unconditional loyalty to the Communist Party, whose decisions conditioned the ‘truth’ in the entire USSR. My article also explores how this approach was used in the Soviet era for myth construction and was integrated into laws that were used to restrict ‘anti-Soviet lies’ until the USSR’s collapse.

The paper presents a collection of empirical data on contemporary factual statements, opinions, and posters that oppose the war in Ukraine. Regrettably, these materials have been discredited and deemed ‘harmful lies’ in Russian public discourse. I express my sincere gratitude to my brave young colleagues from the Higher School of Economics in Moscow, who took significant risks to obtain access to the court decisions that became the foundation of my study. These decisions are solely available in Russian and can only be found in legal databases located in Russia. I am also grateful to my former supervisor at Moscow State University’s School of Journalism, Professor Andrei Richter, who is currently a Professor at the Comenius University of Bratislava, and Professor Lorna Woods from Essex Law School for their meticulous review, sagacious guidance, and unwavering support throughout the entire process. Furthermore, I would like to thank my colleagues Professor Geoff Gilbert, Professor Sabine Michalowski, Dr. Tara Van Ho, Dr. Konstantinos Kalliris, Dr. Alexandros Antoniou from Essex Law School and Dr. Ilya Kiriya from the University of Grenoble, without whom this study would not have been possible.

Proving online incitement of international crimes: expert evidence in the digital era

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By Dr. Matthew Gillett, Senior Lecturer, Essex Law School, Head of the Digital Verification Unit.

Image via shutterstock

Throughout history, grave crimes have been fueled by incitement and inflammatory rhetoric. From the Holocaust to Rwanda, influential leaders have established the psychological and rhetorical antecedents for mass violence. However, in the digital age, a far wider range of potential inciters have access to platforms with instantaneous global reach. Already this new era has seen online incitement to atrocities in Myanmar, Ukraine, and Sudan. These events demand accountability and, as investigations and prosecutions get underway, inflammatory statements are increasingly becoming a critical form of evidence.

Speech acts, whether oral or written are forensically significant in multiple ways. They can demonstrate criminal intent, they can demonstrate instigation, and they can amount to crimes in and of themselves, such as persecution or direct and public incitement to genocide. The relevance of speech acts was evident in the International Court of Justice’s provisional measures order in the Israel-South Africa genocide case. Statements made online by high-level Israeli officials through Twitter/X and other platforms were key evidentiary items cited by the Court in granting provisional measures. And that relevance will continue to grow in future litigation. Whereas the Court’s provisional order did not require a detailed evidentiary assessment, the statements will be subjected to far more exacting scrutiny during the merits phase. Equally, if genocide is charged at the ICC or other courts, incendiary statements will constitute a central focal point for the litigation. This begs the question of how such statements can be entered into evidence and contextualized in the context of international legal proceedings.   

In an article I recently co-authored with Wallace Fan, former student manager at the University of Essex Digital Verification Unit, we explore how online materials can be submitted as evidence before international courts. Published in the Journal of International Criminal Justice in December 2023, the article notes that digital open-source information has become a significant means of proving atrocity crimes charges. It argues that digital materials will typically need to be authenticated and contextualized via expert evidence. Highlighting the challenges that DOSI presents, including the risks of misinterpretation and biases leading to erroneous conclusions, the article proposes a six-factor test to identify digital specialists to serve as expert witnesses. It also encourages the digital open-source community to utilize transparent, accessible and replicable methodologies when conducting online investigations. On a complementary track, I am working with PhD candidate Vanessa Topp on a new version of The Hartford Guidelines on Speech Crimes in International Criminal Law, which I co-authored with Professor Richard Wilson of the University of Connecticut in 2017. The new guidelines will address international speech crimes on social media platforms, disinformation, and other linked topics arising in the digital age.   Building on the analyses in those publications, a key facet of the research is to examine how to analyse and tender online speech acts as evidence. For these purposes, it is clear that expert evidence will be required from a range of specialists. Forensic questions include the authenticity of the statement (excluding deepfakes and identifying alterations to the item), attributing it to the suspect, preserving the native files, measuring the reach of the statement, identifying the influence of the statement maker, and, perhaps most significantly, interpreting the statement’s contents in light of its sociological, temporal and cultural context. Underlying conceptual questions include how to categorize online materials as evidence, how digital materials can shift the truth-discerning moment outside of the courtroom, and how the democratization of access to technology tests the distinction between experts and laypersons for legal purposes. As court proceedings heat up, providing conceptual clarity on these issues will help facilitate the submission, contextualization and interpretation of online materials which may constitute or instigate atrocity crimes including genocide and persecution.

Rwanda Treaty and Bill and UK’s legal obligations towards victims of modern slavery

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By Dr Marija Jovanovic, Senior Lecturer at Essex Law School

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This legal analysis of the Rwanda Treaty and Bill and the UK’s legal obligations towards victims of modern slavery and human trafficking (MSHT) has been conducted by Dr Marija Jovanovic from the University of Essex. She is the author of State Responsibility for ‘Modern Slavery’ in Human Rights Law (Oxford University Press, 2023).

The analysis has been commissioned by the Modern Slavery and Human Rights Policy and Evidence Centre (Modern Slavery PEC), which in turn is funded and supported by the UK Arts and Humanities Research Council (AHRC).

The Modern Slavery PEC has actively supported the production of this legal analysis. However, the views expressed in this document are those of the author. The author is grateful to James Robottom, Barrister at Matrix, for detailed comments on a draft of this analysis.

Executive Summary

This report analyses the provisions of the UK – Rwanda Treaty 2023 and the Safety of Rwanda (Asylum and Immigration) Bill in light of the UK’s international obligations towards victims of modern slavery and human trafficking (MSHT) contained in Article 4 of the European Convention on Human Rights 1950 (ECHR) (prohibition of slavery and forced labour) and the Council of Europe Convention on Action Against Trafficking in Human Beings 2005 (ECAT).

It is important to specify that this analysis focuses solely on the requirements under the ECAT and Article 4 ECHR and does not consider the conditions under which International Refugee Law would permit removing people seeking asylum to a third country when the issue of modern slavery and human trafficking was not at stake. Unlike international treaties designed to protect victims of modern slavery and human trafficking, International Refugee Law does not impose an express obligation on States not to remove individuals before their refugee status is determined, nor the obligation to investigate, prosecute, and punish individual perpetrators. Drafted half a century later, the anti-trafficking instruments are much more explicit, concrete, and demanding when it comes to protection requirements.

Accordingly, this analysis emphasises the need to distinguish between obligations arising from international anti-trafficking instruments (the majority of which have been integrated in the ECHR) and those established under International Refugee Law, and emphasises the need for decoupling the issue of modern slavery and human trafficking from migration control.

Section 1 of the analysis focuses on the international law obligation to identify and protect every victim of modern slavery and human trafficking. Article 13 of the Rwanda Treaty expressly envisages the UK not completing the victim identification process in relation to individuals who are deemed to have arrived in the UK illegally. This is a breach of an explicit international obligation to identify and assist every victim of modern slavery and human trafficking, including those who entered or are present illegally, contained in both Article 4 ECHR and Article 10 ECAT.

Section 2 of the analysis explains international law obligations pertaining to the removal of victims of modern slavery and human trafficking. It finds that by providing for removal to Rwanda of suspected victims of modern slavery or human trafficking (individuals who there are reasonable grounds to believe are victims of modern slavery or human trafficking), Article 13 of the Rwanda Treaty and the Safety of Rwanda Bill contravene the express international obligation in Article 10(2) ECAT not to remove such individuals (including to third countries) until the identification process is complete. Removing confirmed victims of modern slavery or human trafficking to Rwanda without an assessment of the risk of re-trafficking they may face, also gives rise to the risk of breaches of Article 4 ECHR by analogy with Article 16 of ECAT. The latter sets out conditions under which an identified victim of modern slavery and human trafficking can be returned to the country of their nationality/permanent residence, which is permitted only after conducting an assessment of the impact of such return on ‘the rights, safety and dignity of that person’, including the risk of re-trafficking. While the ECAT does not expressly govern the removal of identified victims to third countries, by analogy the same conditions ought to apply in such cases.

Section 3 of the analysis discusses the operational duty to protect victims of modern slavery or human trafficking contained in Article 4 ECHR, which includes the protection of those at risk of being subject to modern slavery or human trafficking and prevent re-trafficking. This obligation requires states to consider the risk of re-trafficking when making decisions to remove a suspected or confirmed victim of modern slavery and human trafficking from their territory to a third country. The Rwanda Treaty and the Human Rights Memorandum accompanying the Safety of Rwanda Bill fail to acknowledge the risk of violating this obligation and the need to instruct decision-makers to assess the risk of re-trafficking of presumed or confirmed victims of modern slavery or human trafficking.

Section 4 of the analysis considers the international law obligation to prosecute and punish the perpetrators of modern slavery and human trafficking. It finds that in addition to the obligation to identify every victim of modern slavery and human trafficking, the removal of individuals with a reasonable grounds decision envisaged by Article 13 of the Rwanda Treaty risks breaching a duty to investigate and punish the perpetrators of this crime contained in Article 4 ECHR and Article 27 ECAT. Victims of modern slavery and human trafficking are often the only witnesses of this crime and without their assistance the perpetrators are likely to remain at large.

Overall, removing to Rwanda individuals with a positive reasonable grounds decision (suspected victims), as envisaged by Article 13 of the Rwanda Treaty, will automatically and in all cases put the UK in breach of Article 4 ECHR as well as Article 10 ECAT. In addition, removing identified victims of modern slavery and human trafficking without conducting an individualised assessment of the risk of re-trafficking would breach the operational duty under Article 4 ECHR. Lastly, removing suspected or confirmed victims of modern slavery and human trafficking risks interfering with an obligation to investigate and prosecute the perpetrators of modern slavery and human trafficking contained in Article 4 ECHR and Article 27 ECAT.

Importantly, the conclusions in relation to the incompatibility of the Rwanda Treaty and Bill with the UK’s obligations under Article 4 ECHR and ECAT are not restricted to Rwanda alone, but would apply to removing individuals to third countries without specific safeguards prescribed by these international instruments.

Finally, the conclusion notes that while the present analysis found the provisions of both the Treaty and the Bill incompatible with protective obligations enshrined in Article 4 ECHR and ECAT, the Rwanda Bill prevents victims of modern slavery and human trafficking from raising those incompatibilities before UK courts. Clause 3 of the Rwanda Bill provides for disapplication of sections 2 and 3 of the Human Rights Act 1998 (HRA), which would enable domestic courts to interpret this legislation in line with the ECHR in relation to Rwanda claims. Furthermore, clauses 1 (4) and (6) of the Rwanda Bill specify that its validity is unaffected by international law, including the ECHR and ECAT and clause 2(5) provides that the conclusive deeming of Rwanda as a ‘safe country’ applies notwithstanding any interpretation of international law.

You can read the full analysis here.