Police and Crime Commissioners: A Dislocated Expectation?

Image by James Eades

New research, based on exclusive interviews with high-ranking figures from across UK policing – including Chief Constables, PCCs, one of the most senior persons in policing and one of the persons involved with introducing PCCs – suggests a postcode lottery in police accountability. The calibre of individual PCCs is seen as the key factor in ensuring adequate oversight, with stark differences exposed between forces.

Dr. Simon Cooper, from the Essex Law School, gained unprecedented access to key figures from all sides, on the condition of their anonymity.

Dr. Cooper’s findings, which were published in Policing: A Journal of Policy and Practice and subsequently cited in the House of Commons Police and Crime Commissioners 2021 Report as well as House of Lords 2022 Report Police and Crime Commissioners: Powers and Functions, support the argument that the current system can work.

However, Dr. Cooper identifies a “significant anomaly”, with accountability dependent on the relative strengths of PCCs and Chief Constables and the relationship between the two. Success, in this respect, can be seen to “hinge on luck”.

Dr. Cooper said:

“These findings suggest a significant variation in how police accountability is administered around the country. While one Chief Constable described being regularly ‘grilled’ by their PCC, some Commissioners are seen as ill-equipped, ill-prepared and potentially ego-driven. The importance placed by the system on these single individuals suggests there is a real possibility that some Chief Constables are being held to account more effectively than others.”

One Chief Constable, identified as Chief Constable D, outlined the issues that exist when dealing with their elected PCC, contrasting it with the previous ‘tripartite’ structure, where Chief Constables would report to the Home Secretary and their local Police Authority:

“…there is a significant risk that the relationship (between PCC and CC) either becomes excessively hostile, excessively friendly or… there isn’t the balance, additional questioning or informing of the debate that a wider group would give. (…) Because of poor safeguards and governance arrangements it too quickly descends into personalities and subjectivity in which accountability becomes likeability, becomes re-electability. Accountability becomes all of those things it shouldn’t.”

Another Chief Constable, Chief Constable C, underlined the importance of the PCC-Chief Constable relationship, noting the impact of individual experience and characters:

I have seen evidence of PCCs who are ill-equipped and ill-prepared and actually don’t have the skills to understand big organisations making sweeping statements and making assumptions about individuals without any basis whatsoever. I have also seen Chief Constables that do not want to adapt to a new way of working and will be very obstructive towards PCCs.”

Summarising the impact on oversight, Police and Crime Commissioner D asked:

“The question is can a PCC be played by a Chief Constable? They clearly could be and some I suspect are. I am quite sure that there are some Chief Constables who just pay lip service to their PCC.”

The current system was seen by some as placing an impractical burden on one individual. The lack of a ‘pool of different views’ limits opportunities for the PCC to moderate their thoughts and has the potential to leave the PCC either exposed or guided by advice from others, with no formal oversight role. PCC A commented:

Presumably if it’s something they (the PCC) didn’t know a lot about they talk to a lot of people about it but you don’t see any of those conversations played out.”

In reality, one senior figure, Person Z, was left questioning the original design of the PCC system:

“For one person, even though they are elected, to replace the wisdom and contribution of 19 [Police Authority members] is a tall ask. There’s only one person [the PCC] providing scrutiny [of Chief Constables] and that’s a heavy responsibility, so in terms of scrutiny of course it’s a lot less. Palpably has it worked? No… I suspect PCCs might, in hindsight, be regarded as a blunder.”

Dr. Cooper’s findings suggest a need for the Home Secretary to review the Policing Protocol and for an Accountability Code of Practice to be issued. He said:

“This research encourages the Home Secretary to exercise their power and urgently review The Policing Protocol Order. In its current form, the PPO is overly broad, presumption-based, loosely-worded and generic, with a resulting impact on accountability.”

Dr. Cooper’s research is published at a time of a continuing debate on police accountability. The Police Foundation found a “crisis of confidence”, recommending “root and branch reform”, and Her Majesty’s Inspector of Constabulary and Fire & Rescue Services recommended a “profound and far-reaching police reform” and there have been calls for a Royal Commission.

Dr. Cooper’s research also found that in some instances the PCC model is viewed favourably when contrasted with its forerunner, with the previous bureaucracy and resulting backlog replaced by a “single point of decision-making” and a greater “visibility” of the decision-making process at a local level.

Other interviewees, however, suggested such appearances could be deceptive. PCC E commented:

“We have gained in terms of visibility but lost in terms of detailed scrutiny that the Police Authority was capable of.”


Dr. Simon Cooper’s article titled ‘Police and Crime Commissioners: A Dislocated Expectation?’ was published in Vol. 15, Issue 3 of Policing: A Journal of Policy and Practice and can be accessed via the publisher’s website here. The House of Commons report on PCCs, citing Dr. Cooper’s research (pp. 10-11), can be read here. The House of Lords report also citing his research (para. 1.3) can be read here.

This ELR post was updated on 10 November 2022 to reflect recent developments in the impact of Dr. Cooper’s research.

The Use of Digital Reconstruction Technology in International Law

Photo by Sajad Nori

Digital reconstructions of crime scenes have been used more frequently in both domestic and international courts as technology becomes more developed and accessible to courtroom actors.

Though digital reconstructions can be beneficial, especially in the context of international criminal law, as they allow judges to visit crime scenes that would otherwise be too expensive or dangerous to travel to in person, there are inherent risks that come with the use of this novel type of evidence in a court of law.

Sarah Zarmsky, a doctoral candidate with the Human Rights Centre at the University of Essex, published an article titled ‘Why Seeing Should Not Always Be Believing: Considerations Regarding the Use of Digital Reconstruction Technology in International Law‘ in the Journal of International Criminal Justice (JICJ).

Sarah’s article explores some key considerations which arise if digital reconstructions are to be used in international criminal courts and tribunals, with an emphasis on the rights of the accused and effects on victims and witnesses.

The article argues that in order for fair trial standards to be upheld and for international courts to fulfil their roles not just as prosecutors of crimes, but as seekers of truth and reconciliation, digital reconstructions need to be approached with caution and analysed through a critical eye.

Sarah will present her paper as part of the Launch Event for the JICJ Special Issue on New Technologies and the Investigation of International Crimes, which will be held virtually on 9 November 2021 at 15:30-17:00 GMT.

This event will bring the authors of articles in the special issue together, including Essex Law School’s Dr. Daragh Murray who also contributed to the same issue and served as one of its co-editors, for a discussion of their key insights on the future role of technology in accountability processes. Those interested in attending can register here.

Basque Separatist Group ETA Lowered Its Weapons 10 Years Ago. Has Reconciliation Truly Happened?

For too long, Basque society remained petrified and silent

Screenshot of YouTube/BBC video depicting footage of ETA members putting ‘arms beyond use’ in October 2011.

Ten years ago, on October 20, 2011, the Basque armed group ETA (Euskadi Ta Askatasuna, “Basque Country and Freedom”) finally declared “a definitive cessation of its armed activity.” This was what Basque and Spanish societies had long been waiting for.

It would take them until 2018 to formalise their dissolution, but October 20 is marked in the calendar as a day of liberation, especially for those whose lives were at risk. The Basque Country was finally going to have the chance to become a free and “normal” society like any other.

Jesús Eguiguren, one of the tallest figures in Basque politics in recent decades, was also relieved. Days after ETA’s much-awaited declaration, when asked what normality would mean to him, he said: “For me, it means the freedom to eat pintxos in the Old Town” of Donostia-San Sebastian, my hometown. Because of being directly threatened by ETA for his political opposition to Basque independence, the old town had been a no-go area for Eguiguren, but also for thousands more.

ETA was formed in 1959, during the Franco era, with the goal of seeking self-determination and independence for the Basque Country. Since the late 1960s, ETA was responsible for more than 850 deaths in the Basque Country and other parts of Spain. This figure underestimates the pervasive sense of fear caused by ETA and its supporters. In the last 15 years of their existence, ETA, through extortion and threats, specifically targeted politicians, academics, police officers, journalists, and civil servants who disagreed with their totalitarian agenda. Approximately 3,300 men and women were forced to live with police escorts.

The Basque Country is a region with a strong national identity divided between the north of Spain and the southwest of France. With fewer than three million inhabitants, it’s hard not to have known someone who paid a high price for being who they were, sometimes the highest of all prices—their life. In my case, this included a primary schoolmate, whose father—a police officer—was killed by the armed group; a teacher in the same primary school whose husband, a journalist, was murdered; a sport’s teammate’s father, who reluctantly moved to Madrid after receiving serious threats; one of my university professors, and my friend and former boss, the Basque parliament’s high commissioner for human rights between 2004 and 2014, Iñigo Lamarca, whose name appeared in one of ETA’s hit lists.

A lot has changed in the Basque Country in the past 10 years. Nobody’s life is at risk as a result of their politics, and that is no mean feat. My nephew and nieces, who are 11 years old, are blissfully unaware of the environment of low-intensity violence that permeated society up to a decade ago.

Basque society is still working out a public memory about that time. Victims of ETA’s violence have received recognition from public institutions, but social recognition has been much slower, and more timid. In towns and communities where Basque independence was the preferred political choice, ETA suspects were often treated like heroes. At the same time, credible reports of police torture were systematically dismissed by the Spanish government, tarnishing the public image of the State and its institutions. Despite multiple reports from independent investigators and international human rights bodies, the official line was, and largely remains, that the torture allegations against the police were simply lies spread by terrorists—ETA members.

Spanish public authorities and a sizeable majority in Spanish society have a long way to go to recognise that torture and ill-treatment were an obnoxious part of the anti-terrorist strategy in the 1980s, 90s and 2000s. As I explain in my new book Spain and its Achilles’ Heels: The Strong Foundations of a Country’s Weaknesses, these practices harmed the credibility of the police as a fully democratic institution and made life even more difficult for the officers who respected the rule of law.

In the 2000s, ETA was being cornered by the police, but the decline in popular support was a key reason why the group stopped their violence for good in 2011. In previous decades, ETA benefited from long periods of silence of large parts of Basque society who believed their discretion would keep them away from the attention of ETA and their informers. Outstanding exceptions must be noted, including the case of “Gesto Por la Paz” (“Gesture for Peace”), an organisation that convened silent rallies the day after each murder and on a weekly basis for 25 years, starting in 1986. It was a modest gesture that, nonetheless, required a large dose of bravery.

Over time, Basque society empowered itself to make it clear that ETA did not represent them. The sociological statistical survey of the Basque Country shows that fewer than 25 per cent of people totally rejected ETA in 1981, but that number went up to 60 per cent by 2000 and remained at that level for 10 more years, while ideological support for ETA was minimal in the 2000s (around 1-3 per cent).

The Basque Country has changed substantially for the better in a new spirit of calm, peace and rediscovered freedom. More time will be needed, however, to strengthen bridges and walk decisively towards reconciliation. Police officers, bodyguards, journalists and politicians were unjustly killed, and for too long the Basque society remained petrified.

In shifting public perception in Spain, a new film can potentially make a difference: Maixabel dramatizes the true story of Maixabel Lasa, a brave activist for peace, memory and reconciliation, whose husband was killed by ETA in 2000. A few years ago, Maixabel met face-to-face with the man who killed her husband. The killer had distanced himself from ETA in a difficult process of atonement.

Maixabel Lasa’s testimony is one of a handful of conversations during the last decade between ETA victims and repentant ETA members. Most of these meetings were held in private, but some of the participants are talking about their experience in schools, and conveying their emotions at other public events.

Other events have brought together victims of ETA, victims of GAL (state-sponsored terrorism of the 1980s), as well as victims of police torture. Also, pro-independence politicians have apologised for the damage they caused through their decades-long complicit silence.

Working out the past in a plural, inclusive and respectful way will take time, and the Basque Country only recently got rid of ETA’s yoke. Historical memory is a powerful reminder that freedom should not be taken for granted.

As my mum once said to me when talking about Basque peace and reconciliation, it’s shocking how quickly one gets used to normality, when people are not killed for their ideas.


This piece first appeared on Global Voices and is reproduced on our ELR blog under a Creative Commons Licence. The original post can be accessed here.

The Ecology of War and Peace: Marginalising Slow and Structural Violence in International Law

Photo by Sergio Torres

Dr. Eliana Cusato, who is currently appointed as a Marie Skłodowska-Curie postdoctoral fellow at the Amsterdam Center for International Law, authored a new book titled The Ecology of War and Peace: Marginalising Slow and Structural Violence in International Law. Her book was published by Cambridge University Press in September 2021.

The interrelation of ecology and conflict has been the object of extensive study by political scientists and economists. From the contribution of natural resource ‘scarcity’ to violent unrest and possibly armed conflict; to resource ‘abundance’ as an incentive for initiating and prolonging armed struggles; to dysfunctional resource management and environmental degradation as an obstacle to peacebuilding, this literature has exerted a huge influence upon academic discussions and legal/policy developments.

While international law is often invoked as the solution to the socio-environmental challenges faced by conflict-affected countries, its relationship with the ecology of war and peace remains undertheorized. Drawing upon environmental justice perspectives and other theoretical traditions, the book unpacks and problematizes some of the assumptions that underlie the legal field.

Through an analysis of the practice of international courts, the United Nations Security Council, and truth commissions, the book shows how international law silences and even normalizes forms of structural and slow environmental violence (notably, uneven access and distribution of natural resources; less visible forms of violence associated with the environmental aftermath of wars).

This, in turn, jeopardizes the prospects of creating more peaceful societies, while perpetuating deeply rooted inequalities. Ultimately, the book urges us to imagine entirely different legal notions of justice, peace, and security in times of ecological disruption.

By drawing upon extra-legal fields of inquiry (e.g., the literature on environmental security, the political economy of civil wars, the resource curse, and environmental peacebuilding), the book strives to refine extant understandings of how international law conceptualizes and regulates the ‘environment’ before, during, and after armed conflict.

By engaging with some of the international legal order’s most pressing concerns – rising intra-state violence, environmental degradation, resource depletion, and their interaction – the book opens intellectual spaces for rethinking current approaches to the ecological challenges of our hyperconnected world and their adverse impact on the most marginalized peoples. As such, it offers a critical companion work to related titles and, at the same time, pushes the research envelope further and in new directions.

E Cusato, The Ecology of War and Peace: Marginalising Slow and Structural Violence in International Law (CUP 2021)

The book will be of interest to academics and students across different disciplines, primarily international law, but also peace and conflict studies, political theory, and international relations. It will also prove useful as a reference for policymakers and practitioners working at the intersection of environmental issues, human rights, and peace and security within international organisations/tribunals, governmental departments, think thanks, and NGOs.


Dr. Eliana Cusato is currently on academic leave from the Essex Law School.

Impact on Victims’ Law Policy Paper

Photo by Edward Howell

In a report published in November 2020 (Constitutional Powers of the Victims’ Commissioner for England and Wales), co-written by the Essex Law School’s Professor Maurice Sunkin together with Professor Pam Cox and Dr Ruth Lamont, these experts argued that the role of the Victims’ Commissioner for England and Wales – set up in 2004 to promote the interests of the victims of crime – needs to be strengthened if it is to be effective.

This report has been influential in recent developments in this area. In particular, a new paper (titled Victims Law Policy Paper: The Victims’ Commissioner’s proposals for a Victims Law) by the current Victims’ Commissioner, Dame Vera Baird, appears to have been closely informed by eight of the recommendations made by Sunkin, Cox and Lamont.

These included Recommendation 2 to develop a set of core statutory rights, with a statutory duty on those  agencies listed in the Victims’ Code to ensure all their policies and practice are compliant; and Recommendation 25 to establish a single cross-criminal justice system complaints body for all victim complaints in respect of non-compliance with the Victims’ Code, which is responsible for the oversight of the handling and response to the complaint.

It is great to see how the November 2020 report has produced some very concrete impact and helped develop thinking around what The Victims’ Commissioner for England and Wales wants to see from a Victims Law.

‘Old-fashioned alpha males’ against ‘professional homosexuals’: media justice and discriminatory reporting in the wake of the Greek #MeToo movement

Dr. Dimitris Akrivos, Lecturer in Media Law, University of Essex

From the exposure of Hollywood producer Harvey Weinstein’s crimes to the Westminster sexual harassment scandal, the #MeToo movement has in recent years spread around the world, empowering survivors of sexual violence to share their traumatic experiences on social and news media. It was not until January 2021, however, that the impact of the movement became apparent in Greece.

Talking in an online event about the protection of children in sports on the 14 January 2021, Greek Olympic medallist Sofia Bekatorou publicly accused the vice president of the Hellenic Sailing Federation of sexually assaulting her in 1998. Bekatorou’s allegations led to the emergence of the hashtag #metinSofia (i.e. with Sofia) on Twitter with many other athletes but also actresses, singers and influencers following her example and reporting their own experiences of physical and/or psychological victimisation by powerful men (including famous actor Giorgos Kimoulis as well as actor and former Deputy Minister of Social Security Pavlos Haikalis). It was no surprise that, due to the celebrity status of many of the alleged victims and perpetrators, such claims dominated the Greek news agenda during these past two months alongside stories about the COVID-19 pandemic.

In February 2020, the Greek #MeToo movement acquired even greater momentum with clear political ramifications when former director of Greece’s National Theatre Dimitris Lignadis was remanded over allegations of serial rape – some of which involved underage victims. Responding to criticisms for appointing Lignadis, culture minister Lina Mendoni stated that he is a ‘dangerous man’ who ‘deceived her’ and ‘with deep acting talent tried to convince her that he had nothing to do with all this’. At the same time, Lignadis’ defence attorney Alexis Kougias dismissed the allegations against his client as a ‘crude fabrication’ made by ‘professional homosexuals’.

The news media’s involvement in Lignadis’ and all the other cases forming part of the Greek #MeToo movement constitutes an indicative example of what Greer and McLaughlin (2010: 27) define as a trial-by-media: ‘a dynamic, impact-driven, news media-led process by which individuals – who may or may not be publicly known – are tried and sentenced in the “court of public opinion”.’ In the era of 24/7 news, media seek to perform an alternative function of ‘justice’ which runs parallel to that administered by formal institutional authorities. There is an undeniable benefit in shedding light to such historic cases of sexual violence and thereby encouraging an honest, free-from-stigma discussion around the issue. Despite its belated emergence (or possibly because of it) the Greek #MeToo appears to extend the boundaries of the movement even further by also placing emphasis on cases of gender-based workplace bullying as well as male victimisation.

The shortcomings of this ‘trial-by-media’, however, including its impact on the defendant’s right to a fair trial, the consequent reputational damage and the risk of vigilantism also need to be taken into consideration. In the context of the ongoing discussion on the allegations made, journalistic objectivity and due process can easily give way to moralising, sensationalist speculation about the motives and actions of the accused who are assumed to be ‘guilty until proven innocent’ and therefore deserving to be ‘named and shamed’.

In addition, the homophobic dimension of some of the relevant mediated discourse also need to be highlighted. From the Greek state television censoring a gay kiss from an episode of Downton Abbey to bishop Amvrosios publicly urging people to ‘spit on gays’ because they are ‘freaks of nature’ and the killing of LGBT+ activist Zak Kostopoulos by the police, there is still a lot of progress to be made in order for LGBT+ people to achieve equal rights in Greek society. This is something that became even more apparent with the recent rise of the Greek #MeToo.

Apart from Kougias building Lignadis’ defence around claims (in Greek) of ‘crude lies’ told by ‘professional homosexuals’ who are ‘untrustworthy personalities’, the language used in some relevant news stories in the Greek press has been salacious, offensive and discriminatory: indicatively, tabloid newspapers ran controversial front-page stories with headlines like ‘Fa—[anti-gay slur] and paedophile bathhouse brings down the government’ (Makeleio, 20 February 2021), ‘Dirty nights with Ali and Saleem: dark-skinned boys at Lignadis’ disposal’ (Espresso, 25 February 2021) and ‘Homosexuals, perverts and paedophiles run the country with Mitsotakis [the incumbent Greek PM] in charge’ (Makeleio, 27 February 2021).

Such stories clearly associate homosexuality with paedophilia, creating a ‘signification spiral’ (Hall et al., Policing the Crisis, 1978) in the context of which both behaviours are constructed as sexual ‘perversions’. Such an association is intrinsically linked to and largely legitimised by the patriarchal discourse used by some of the accused to explain their actions – for example, Haikalis’ claim that he is an ‘old-fashioned alpha male’ – which also favours a view of non-heterosexual masculinities as deviant and socially reprehensible (Buchbinder, Studying Men and Masculinities, 2013).

There is extensive research on moral panics and the media’s role in marginalising social groups, portraying them as ‘folk devils’ who allegedly behave in ways that pose a risk towards society’s dominant moral values (Cohen, Folk Devils and Moral Panics, 2002[1972]). The aforementioned homophobic reporting can largely be made sense of within this framework. What is disconcerting, however, in the case of Greek media is not merely the exposure but most importantly the limited protection offered to LGBT+ people against such prejudicial and sensational media coverage on a regulatory level.

On the one hand, ESIEA, which is main trade union of Greek journalists based in Athens, provides in its Ethical Guidelines for Journalists (in Greek) that news reporting should be free from ‘discrimination based on nationality, sex, ethnicity, religion, political beliefs, financial situation and social status’ [Article 2(a)]. Although discrimination on the basis of gender identity or sexual orientation could in principle fall under the broad category of ‘social status’, it could be argued that the Code’s failure to refer explicitly to this particular form of discrimination creates an ambiguity which allows cases of homophobic reporting like those mentioned earlier to emerge without any threat of serious sanctions.

On the other hand, the National Council for Radio and Television (NCRT), which is the main regulator for public and private broadcast Greek media, seemingly adopts a more inclusive approach in its Code of Ethics for News and other Current Affairs and Political Programmes (in Greek): Article 4.1 of the Code specifically states that discriminatory reporting based on sexual orientation is not allowed while Article 4.2, which prohibits demeaning comments towards ‘ethnic and religious minorities and other vulnerable or powerless social groups’ (emphasis added), potentially covers sexual minorities too even if these are not explicitly mentioned.

This prima facie protection from discriminatory reporting offered by the NCRT Code to LGBT+ people is contradicted by the Council’s regulatory practice which has on several occasions led LGBT+ supporters to accuse NCRT of institutional homophobia and transphobia. For instance, in 2013, NCRT rejected (in Greek) the request of the Athens Pride organisers to air the event’s TV spot on all major Greek TV stations free of charge on the grounds that the spot ‘could not be described as one with a social message’.

Similarly, in 2010, NCRT imposed a fine of €20,000 on the Star Channel afternoon show Fotis and Maria Live for interviewing trans actress and author Betty Vakalidou based on the following rationale (emphasis added):

‘the issue of homosexuality (the sexual preference for individuals of the same sex) and of sex change with or without surgical intervention that was presented in the show constitutes a social issue and a reality that concerns only a small minority of people. It constitutes a condition that goes beyond the normal and, for that reason, it largely sounds strange to the underage viewer… The presentation of information about the sex life of homosexuals or transsexuals, about the sex change procedure and the feelings and experiences of the woman being interviewed, could possibly have a negative impact on underage viewers.’

Such discourse not only fails to protect LGBT+ people from discrimination but has the potential to add to their vulnerability and marginalisation even further by portraying them as ‘others’ who live outside the boundaries of the normal, heterosexual society. By prioritising a moralistic argument about how a discussion on LGBT+ issues might affect underage viewers, it also neglects the impact that prejudicial media portrayals or the lack of media representation can have on LGBT+ people’s mental well-being, self-image and aspirations. Positive LGBT+ representation in the news and entertainment media can play a key role in promoting social acceptance and tackling homophobic and transphobic violence. In a country like Greece where, according to a 2020 survey by the EU Agency for Fundamental Rights, 73% of LGBTI individuals avoid holding hands in public out of fear of being assaulted, threatened or harassed (one of the highest percentages among the 28 EU member states), it is profoundly disappointing and alarming that regulatory bodies like the NCRT fail to see the importance of responsible media reporting in creating a more inclusive Greek society and thereby improving LGBT+ individuals’ quality of life.

Finally, it is worth noting that, in our multi-mediated world, those identified as ‘folk devils’ and their advocates can use different outlets to challenge their demonisation in mainstream media instead of being completely defenceless against it. Following Kougias’ statement about his client’s reputation being tarnished by ‘professional homosexuals’, several well-known public figures hastened to criticise the lawyer’s language on news and social media: songwriter Foivos Delivorias condemned (in Greek) Kougias’ attempt to associate homosexuality with paedophilia and rape while, in a sarcastic move, both he and journalist Elena Akrita changed their employment statuses on Facebook to ‘Employed at Professional Homosexuals’.

The power to resist the conservative ideology of traditional media, however, does not change the fact that more work is required by media professionals and the relevant authorities in order to approach and report on the complex issues raised by the #MeToo movement sensitively. The Greek #MeToo movement can be seen as a tipping point which has the potential to effect societal change by eliminating the stigma attached to those issues and encouraging an open dialogue around them. But, as shown by some of the news coverage in former National Theatre director Dimitris Lignadis’ case, more responsible reporting is needed for this potential to be materialised.

In an attempt to show it is taking these allegations seriously (and perhaps also to divert attention away from its own unforeseen implication in Lignadis’ scandal), the Greek government set up the website metoogreece.gr to provide victims with the contact details of relevant support services. Allegations of rape, sexual assault, paedophilia and bullying against Lignadis and other powerful men of the Greek show business still dominate the Greek media at the time of writing. The exact number of victims and perpetrators, the actual impact of the ongoing ‘trial-by-media’ on due process and ultimately the extent to which the Greek #MeToo movement will succeed in rocking the hetero-patriarchal foundations of the Greek society remain to be seen.

This piece was originally published on The International Forum for Responsible Media and is reproduced here with permission and thanks.

The Scope of Military Jurisdiction for Violations of International Humanitarian Law

The Drumhead Court Martial John Pettie (1839–1893) | Photo credit: Museums Sheffield

Claire Simmons, PhD Candidate in Law at the University of Essex, published a new article in the Israel Law Review, titled ‘The Scope of Military Jurisdiction for Violations of International Humanitarian Law’.

With the adequacy of military jurisdiction over violations of international law being questioned in certain spheres, the article explores the role and limits of military jurisdiction in combating impunity for violations of International Humanitarian Law (IHL), the body of law which regulates situations of armed conflict.

The article demonstrates that that the unique context of armed conflict and military operations can provide important reasons to retain and strengthen military justice systems to combat impunity for certain violations of IHL, especially to suppress non-criminal or administrative violations.

For jurisdiction over criminal offences (including war crimes), the adequacy of military or civilian systems will depend on domestic, regional, and international factors which are difficult to generalise. Increased scrutiny under international human rights law into the impact of these justice systems on the rights of individuals has led to restrictions on the format and scope of military jurisdiction, yet States have implemented these obligations in different ways at a domestic level. What is clear in all cases is that the systems of justice used must respect international standards of fair trial and general principles of justice.

There is a need to continue the discussion on the adequacy of military justice in combating impunity for violations of international law. Claire Simmons’ article highlights the importance for such debates to address State obligations in a holistic manner, including by recognising the applicability of different bodies of international law, differences in domestic legal systems, and applicable legislation in times of both peace and war. Such a holistic approach is crucial to promoting accountability under international law while protecting the rights of both those accused of offences as well as those affected by violations in armed conflict.

Galindo: COVID-19 Unearths Ghosts of Spain’s ‘Dirty War’

The death of a former General convicted for murder divides Spain

Enrique Rodríguez Galindo. Screen capture of TV channel LaSexta’s video on YouTube

Dr. Koldo Casla, Lecturer in Law, University of Essex

Enrique Rodríguez Galindo died on February 13, 2021, with COVID-19, at 82 years of age.

The former general of Spain’s gendarmerie force, the Guardia Civil, Rodríguez Galindo headed the garrison of Intxaurrondo in the Basque city of Donostia-San Sebastián in the 1980s and 90s. At that time, police officers were frequently targeted by ETA, the Basque pro-independence armed group that extorted and threatened thousands of people, killing 850 over half a century until it was forced to put an end to its violence in 2011. Lack of popular support and effective police action were important factors for why ETA came to an end.

Rodríguez Galindo was in charge of anti-terrorism action in very difficult circumstances. Yet, he was also a kidnapper and a murderer himself.

This is what Spain’s High Court concluded in 2000, and it was confirmed a year later by the Supreme Court. Rodríguez Galindo was sentenced to 75 years in prison for ordering the kidnapping and killing of José Antonio Lasa and José Ignacio Zabala. They were tortured and executed in 1983 by death squads known as GAL, the “Antiterrorist Liberation Groups.” They were buried with quicklime in the mistaken expectation that the chemistry would make the remains disappear for good. The bodies were found in 1985, and medical examiners could identify them only in 1995.

Out of 75 years, Rodríguez Galindo only spent five in prison. He was granted a partial release in 2005 and parole in 2013.

In 2021, Rodríguez Galindo’s death awoke Spain’s ghosts of the past.

Secretly funded by the Spanish Government, GAL was responsible for no fewer than 27 extrajudicial executions between 1983 and 1987 in what is known as the “dirty war”.Some victims were alleged ETA members, such as Lasa and Zabala, others simply bystanders in the wrong place at the wrong time. In 1998, Spain’s Home Secretary José Barrionuevo and his deputy Rafael Vera were imprisoned for their responsibility in GAL; Felipe González, Prime Minister at the time, was photographed hugging them goodbye at the jail’s gate. In an interview in 2010, González declared cryptically: “I had to decide whether to blow up the leaders of ETA. I said no. And I don’t know if I made a mistake.” Much has been speculated about González’s involvement in GAL, but so far nothing sufficiently definitive has been proven.

As pointed out by the scholar Omar Encarnación, GAL was “a continuation rather than a departure of the State’s counter-terrorism strategies” after Franco’s dictatorship, which ended in 1975. GAL was the result of a less than perfect transition to democracy, where institutions were not cleaned up, resulting in the lack of democratic control over the police, the militarized Guardia Civil, and the military intelligence. GAL’s existence also emboldened ETA, giving them discursive ammunition to dispute the democratic character of Spain, and offering them the chance to present themselves as victims of state-sponsored repression.

Some of the reactions to Rodríguez Galindo’s death are proof that segments of Spanish society have a lot of work to do to face their demons.

In its obituary, the widely sold newspaper El País spoke of the General’s “dazzling record of service,” tainted only by the “shadow” of “supposedly being part of the so-called dirty war.” One would think that the word “supposedly would no longer be necessary considering Galindo’s court sentence.

Macarena Olona, Member of Parliament of the far-right Vox, the third-largest party in Spain, wrote on Twitter: “May the earth rest lightly on you, my general.”

“May the earth rest lightly on you, my General. Today, more than ever, Intxaurrondo is in our hearts. Rest in Peace.”

On the same social platform, her fellow party member sitting in the European Parliament, Jorge Buxadé, wished that “perpetual light shine upon him.”

The death of General Rodríguez Galindo is another opportunity given to us by social media to block, denounce and identify the accounts of those who live and promote hatred of Spain and its laws.

May he rest in peace. And may the perpetual light shine upon him.

The sister of one of Rodríguez Galindo’s confirmed victims, Pili Zabala said on television on February 14 that she had tried to get in touch with Rodríguez Galindo to urge him to take responsibility for the pain he had caused her family. She wanted him to admit what he did had been wrong, but she never heard back from him. Now, Zabala is seeking full accountability: Galindo “was an army man, he was obeying orders, and it is clear to me that he received orders from his superiors, who were politicians.” Zabala is hoping that former Prime Minister Felipe González will eventually sit in the dock.

In 2000, Provincial Governor in Donostia-San Sebastián, Juan María Jauregi, had given evidence in court about Rodríguez Galindo’s involvement in the killing of Lasa and Zabala. Twenty years later, in light of a Twitterstorm of eulogies for the general hours after the announcement of his death, Jauregi’s daughter, Maria Jauregi, shared:

These words by my father come to mind, which I will never forget: “I don’t know who will kill me, ETA or Galindo himself”

It was ETA in the end, and it happened in 2000. His widow, Maixabel Lasa, and their daughter, Maria, became two of the most powerful voices against hatred and for justice and reparations for all victims of human rights abuses in the Basque Country.

Today, it is worth recalling these words by Pablo de Greiff, the former UN Special Rapporteur on Truth, Justice and Reparations, after his mission to Spain in 2014:

“The strength of democratic institutions must be measured not by their ability to ignore certain issues, especially those that refer to fundamental rights, but rather by their ability to manage them effectively, however complex and awkward they may be”.

This piece was first published on Global Voices and is reproduced here under a Creative Commons Licence.

Enhancing Cross-Border Access to Electronic Information in Criminal Proceedings: Towards a new E-Evidence legal framework in the EU

Photo by Christian Lue on Unsplash

Dr Oriola Sallavaci, Senior Lecturer in Law, University of Essex

In recent years cross-border exchange of electronic information has become increasingly important to enable criminal investigations and prosecutions. As I have discussed in depth in my study “Rethinking Criminal Justice in Cyberspace: The EU E-evidence framework as a new model of cross-border cooperation in criminal matters” the use of technology has transformed the nature of crime and evidence leading to ‘crime without borders’ and ‘globalisation of evidence’. An increasing number of criminal investigations rely on e-evidence and this goes beyond cyber-dependent and cyber-enabled crimes. From an evidential point of view, today almost every crime could have an e-evidence element as often offenders use technology, such as personal computers, notepads, and camera phones, where they leave traces of their criminal activity, communications or other pieces of information that can be used to determine their whereabouts, plans or connection to a particular criminal activity. 

Crime today often has a cyber component and with it an increasingly prominent cross border dimension because electronic information to be used for investigative or evidentiary purposes is frequently stored outside of the investigating State. The borderless nature of cyberspace, the sophistication of the technologies and offenders’ modii operandi pose specific and novel challenges for crime investigation and prosecution that, in practice, may lead to impunity.  In 2018 the European Commission found that in the EU “more than half of all investigations involve a cross-border request to access [electronic] evidence.” Yet, alarmingly, “almost two thirds of crimes involving cross-border access to e-evidence cannot be effectively investigated or prosecuted”. Challenges to accessibility relate inter alia to the volatility of e-information, availability and the location of data, as well as the legislative barriers and shortcomings that must be overcome to enhance cross-border access to electronic evidence and the effectiveness of public-private cooperation through facilitated information exchange.

Cross border access to e-information is currently conducted through traditional judicial cooperation channels and requests are often addressed to specific states which are hosts to many service providers (SP). In the EU these include Mutual Legal Assistance requests and European Investigation Orders according to Directive 2014/41/EU which provides for the acquisition, access and production of evidence in one Member State (MS) for criminal investigations and proceedings in another Member State.  The nature of the existing judicial cooperation instruments, actors and procedures involved, and the ever-increasing number of requests have resulted in delays and inefficiencies, posing specific problems for investigations and prosecutions that are exacerbated by the volatility of electronic information.

In the EU, there is no harmonised framework for law enforcement cooperation with service providers. In recent years, Member States have increasingly relied on voluntary direct cooperation channels with service providers, applying different national tools, conditions and procedures. Service providers may accept direct requests from LEAs for non-content data as permitted by their applicable domestic law. However, the fragmented legal framework creates challenges for law enforcement, judicial authorities and service providers seeking to comply with legal requests, as they are increasingly faced with legal uncertainty and, potentially, conflicts of law.

Cross border access to electronic information requires legal instruments that are capable of efficiently supporting criminal investigations and prosecutions and that, at the same time, have in place adequate conditions and safeguards that ensure full compliance with fundamental rights and principles recognised in Article 6 of the Treaty on European Union, the EU Charter of Fundamental Rights and the European Convention on Human Rights, in particular the principles of necessity, legality and proportionality, due process, protection of privacy and personal data, confidentiality of communications, the right to an effective remedy and to a fair trial, the presumption of innocence and procedural rights of defence, as well as the right not to be tried or punished twice in criminal proceedings for the same criminal offence.

In order to achieve these objectives and overcome difficulties present in the existing mechanisms of cross-border cooperation, in April 2018 the EU Commission proposed an important legislative package referred to as “E-evidence”, aimed at facilitating the access to e- evidence by European law enforcement agencies (LEAs). The framework contains two legislative measures: a Regulation which provides two new mechanisms for LEA’s cross border access to e-evidence: European Production Order and European Preservation Order which are to be addressed directly by LEAs of the issuing MS to a service provider, and a  Directive which requires every online service provider “established” in or that has “substantial connection” to at least one EU Member State to appoint a legal representative in the territory of an EU MS of choice as an addressee for the execution of the above Orders.

On 7 December 2018 the Council adopted its own draft (known as Council’s “general approach”) and after two years of delays caused partially from the EU parliamentary elections and the Covid-19 pandemic, on 11 December 2020 The EU Parliament adopted its position. On 10 February 2021 the ‘trilogue’ procedures amid the EU Parliament, the Council, and the Commission started in order to agree to a common text. In the study cited above, I have analysed in depth the key legal provisions contained in the Commission’s proposal, the Council’s draft and the report of the LIBE’s rapporteur Birgit Sippel, presented to the EU Parliament in 2020. Considering that the E-evidence framework is currently being negotiated, the study’s analysis and findings aim to contribute to achieving the best version of the forthcoming instruments.

The EU E-evidence framework is of particular importance in shaping the future of similar instruments and the terms of cooperation between countries all over the world. To a certain extent, it follows the US CLOUD Act 2018 that in itself marks a major change in how cross-border access to e-evidence may develop in the rest of the world. The EU E-evidence framework shall influence and at the same time needs to conform to a number of new agreements currently being negotiated. In 2019 the EU Commission received a negotiating mandate to achieve an agreement between the EU and US, as well as to shape the second amending protocol of the Cybercrime Convention (CCC). Both these instruments need be negotiated from the perspective of the forthcoming E-evidence framework, therefore it is important that the latter offers provisions that increase the efficiency of investigations and prosecutions by surpassing challenges in cross-border cooperation, while maintaining safeguards to fundamental rights of individuals.

The E-Evidence legislative package lays down the rules under which, in a criminal proceeding, a competent judicial authority in the European Union may directly order a service provider offering services in the Union to produce or preserve electronic information that may serve as evidence through a European Production or Preservation Order. This framework will be applicable in all cross-border cases where the service provider has its main establishment or is legally represented in another Member State. The framework aims to complement the existing EU law and to clarify the rules of the cooperation between law enforcement, judicial authorities and service providers in the field of electronic information.  The new measures for cross border access to e-evidence will not supersede European Investigation Orders under Directive 2014/41/EU or Mutual Legal Assistance procedures to obtain electronic information. Member States’ authorities are expected to choose the tool most adapted to their situation. However, authorities of the Member States will be allowed to issue domestic orders with extraterritorial effects for the production or preservation of electronic information that could be requested on the basis of the e -evidence Framework.

Despite expected improvements in the efficiency of investigations and prosecutions by simplifying and speeding up the procedures, the necessity of having a new legal framework to organize cross-border access to electronic evidence has been questioned.  The proposed e-evidence framework is perceived as adding another layer to the already complex tableau of existing, multiple channels for data access and transnational cooperation.   While alternative approaches have been considered and could have been taken by the Commission, as I have argued in depth elsewhere, a specific framework dedicated to improving access to e-evidence is more suitable to help achieve that goal than amendments to existing procedures and instruments that are general in scope and do not provide for the specific e-information  related challenges. Procedural improvements to existing cross border cooperation instruments are necessary, but not by themselves sufficient to overcome the present difficulties and inefficiencies. It is not possible to adequately respond to novel challenges with old mechanisms embedded in lengthy procedures and bureaucratic complexities. The answer is to provide adequate safeguards that protect fundamental rights and the interests of all stakeholders, suited to the new type of instruments created by the e-evidence framework, albeit not identical to the ones found in existing mechanisms of transnational cooperation.

The E-evidence model builds upon the existing models of cooperation yet is fundamentally different. The extraterritorial dimension of the framework affects the traditional concept of territorial sovereignty and jurisdiction. It departs from the traditional rule of international cooperation that cross-border access to electronic information requires consent of the state where the data is stored.  Most importantly, jurisdiction is no longer linked to the location of data. According to the new approach, the jurisdiction of the EU and its MSs can be established over SPs offering their services in the Union and this requirement is met if the SP enables other persons in (at least) one MS to use its services and has a substantial connection to this MS.  In this way the framework avoids the difficulties in establishing the place where the data is stored and the “loss of location” problem. E-evidence framework is a clear example of the development of the concept of territorial jurisdiction in criminal law and the evolvement of connecting factors that establish it, in line with the requirements of legal certainty.

The extraterritorial reach of judicial and state authorities’ decisions in the E-evidence framework introduces a new dimension in mutual recognition, beyond the traditional judicial cooperation in the EU in criminal matters, so far based on procedures involving two judicial authorities in the issuing and executing State respectively. This important aspect of the e-evidence framework entails a fundamentally different approach that demonstrates the (need for) development of the EU law traditional concepts in order to respond to the new challenges with adequate mechanisms. From the perspective of the proposed e-evidence framework, the scope of article 82 (1) TFEU requires further clarification from CJEU or an amendment (albeit difficult). Reliant on the principle of mutual trust, the debates surrounding the e-evidence framework reveal that in today’s European reality this principle is still an objective to be achieved. For as long as disparities in the standards and protections provided by MSs still exist, the way forward should include innovative mechanisms that allow for the control, improvement and maintenance of those standards within each MS as opposed to fostering lack of trust, prejudicial treatment and unjustifiable differentiation between MSs within the EU.

The e-evidence framework generally achieves what it sets out to do: i.e. to increase the effectiveness of cross-border access to e-evidence. The application of the same rules and procedures for access to all SPs will improve legal certainty and clarity both for SPs and LEAs which is currently lacking under the existing mechanisms of cooperation. In several aspects the framework serves as a model to be followed in the international arena. However, further improvements can be recommended:

  • There should be only an exceptional involvement of the enforcing MS as proposed by the Council, so that the framework does not replicate the existing judicial cooperation models.
  • The wording of Article 7a in the Council draft could be amended to allow for the enforcing MS to raise objections on behalf of any affected state.
  • Service Providers should maintain their reviewing powers of production and preservation orders, given the unique position they are in to understand the data. A productive dialogue and close cooperation between SPs and the issuing authorities should be promoted in the earliest stages.
  • The framework should specify the definition of e-evidence and should provide for its inadmissibility in cases of breaches of the requirements specified therein.
  • The data categories need to be better defined and brought in line with other EU and international legal instruments, as well as the jurisprudence of CJEU and ECtHR. The draft presented by EU Parliament is a positive step in that direction.
  • Judicial validation of orders issued by non-judicial authorities should be imperative for all types of data as a form of control and safeguard against abuse or overuse.
  • A classification of investigating authorities by means of a schedule in the proposed framework would help to better define the permitted activities within the scope of the Regulation.
  • A provision that clearly prohibits the production or use of e-evidence in cases contrary to the ne bis in idem principle should be included in the final draft.
  • The final instrument should adopt the approach proposed by the Commission regarding confidentiality and subject notification with an obligation for the issuing authority to inform the person whose content or transactional data are sought in all cases (even though delays should be permitted).
  • The right to exercise legal remedies should be extended to the enforcing MS and/or the MS of residence of the suspect.
  • There should be provisions that enable defendants or other parties in the criminal proceedings to access or request e-evidence. The accessibility of electronic data to the suspects / defendant’s lawyer should be ensured in order to assert their rights effectively.

If implemented, these recommendations would improve the e-evidence framework by ensuring a balance between effective criminal investigations/prosecutions and respect for fundamental rights. A balanced and principled approach should be at the core of any existing or forthcoming instruments concerning cross-border access to electronic information.

International Law and Regional Norm Smuggling

Photo by Janko Ferlič

Dr. Marija Jovanovic, Lecturer in Law at the University of Essex, had a new article published in The American Journal of Comparative Law titled ‘International Law and Regional Norm Smuggling: How the EU and ASEAN Redefined the Global Regime on Human Trafficking’.

The article examines how the regional organizations in Europe and Southeast Asia have redesigned the global regime on human trafficking established by the United Nations Palermo Protocol to suit the dominant regional agendas in the European Union (EU) and the Association of Southeast Asian Nations (ASEAN).

Map indicating locations of European Union and ASEAN | Source: Wikimedia Commons

In seeking to consolidate and coordinate the implementation of the global anti-trafficking action across their respective member states, these regional actors have shaped and promoted fundamentally different understanding of the phenomenon of human trafficking and the actions needed to address it.

These findings challenge general assumptions about the universality and coherence of the growing international legal framework on human trafficking and show the capacity of regional actors to redefine international treaties in line with their specific mandates, pressing concerns and dominant agendas.

Dr. Jovanovic’s article can be accessed through the publisher’s website here.