On 5 April 2023, Dr. Sabina Garahan (Lecturer, Essex Law School) and Dr. Matthew Gillett (Senior Lecturer, Essex Law School submitted evidence to the Joint Committee on Human Rights (the “JCHR”) as part of its legislative scrutiny of the Illegal Migration Bill. Their submission focused on detention-related questions posed by the JCHR.
Dr. Garahan recently completed her AHRC-funded research on the right to liberty under European human rights law. Dr. Gillett is the Vice-Chair of the UN Human Rights Council’s Working Group on Arbitrary Detention (the “Working Group”). The submission expresses shared concerns that the proposed legislation conflicts with fundamental protections against arbitrary detention set out in the European Convention on Human Rights (the “ECHR”) and the International Covenant on Civil and Political Rights (the “ICCPR”).
The authors’ submission identifies several areas in which the Bill conflicts with the right to liberty as enshrined in Article 5 of the ECHR. Importantly, it raises the possibility that the UK Government may be the first Council of Europe Contracting State in history to be found in breach of Article 17, which prohibits the destruction and excessive limitation of ECHR rights.
Dr. Garahan’s and Dr. Gillett’s written evidence equally highlights the potential breach of Article 18 in conjunction with Article 5, on account of the likelihood that the legislation was introduced in bad faith under the ECHR – namely, on the basis of aims not listed under Article 5. Immigration detention that is predominantly imposed on grounds other than those permitted by Article 5 will be found to violate Article 18. The Government’s documented anti-migrant rhetoric, which has sparked significant concerns among international expert bodies, and the expedited passage of the Bill through Parliament strongly indicate the existence of bad faith.
Finally, the submission addresses likely violations of Article 9 of the ICCPR, which protects against arbitrary detention in a range of contexts including immigration-related processes, as held by the Working Group. In introducing discretionary powers to detain anyone suspected of entering the UK unlawfully, for such period as is “in the opinion of the Secretary of State” reasonably necessary (namely, without any time limit), the Bill undermines the exceptionality and necessity limitations of immigration detention.
Dr. Garahan and Dr. Gillett are members of Essex Law School/Human Rights Centre and the Essex Constitutional and Administrative Justice Institute. Their full submission can be accessed on the JCHR website here and a copy can be downloaded from our ELR Blog below.
What is ‘modern slavery’ and who is responsible for it?
What is the relevance of human rights law, which primarily regulates state conduct, for practices predominantly committed by private actors?
Where can victims seek justice and redress when national authorities fail to protect them?
In her new book State Responsibility for Modern Slavery in Human Rights Law: A Right Not to Be Trafficked, Dr. Marija Jovanovic analyses the role and responsibility of states for addressing ‘modern slavery’ – a diverse set of practices usually perpetrated by non-state actors – against the backdrop of international human rights law. Her work explores the dynamic between criminal law and human rights law and reveals the different ways these legal domains work to secure justice for victims.
In particular, the book considers the ‘absolute’ nature of the prohibition of modern slavery in human rights law, the range of practices covered by this umbrella term and their mutual relationships, the positive obligations of states established by international human rights tribunals owed to individuals subject to modern slavery, and the standards for assessing state responsibility in these situations.
By engaging with the concept of exploitation in human rights law, Dr. Jovanovic glues together diverse practices of modern slavery, including servitude, forced labour, and human trafficking, into a coherent concept.
State Responsibility for Modern Slavery in Human Rights Law: A Right Not to Be Trafficked elucidates the theoretical foundations of this fundamental human right and explains why human trafficking has an independent place within it.
In addition to providing a comprehensive critique of the existing human rights jurisprudence, the book offers a roadmap for the future development of law on this subject, emphasising the limits of human rights law as a tool for addressing modern slavery.
Dr. Jovanovic’s book will be published by Oxford University Press in January 2023.
I have recently had the honour to be part of the panel of judges of the Aban Tribunal – a People’s Tribunal established by civil society to review evidence of atrocities allegedly perpetrated by the Islamic Republic of Iran as part of its crackdown on the mass protests that had engulfed Iran in November 2019, sparked by massive rises in fuel prices but fundamentally were about social and economic rights and governance in the country. Our judgment, in which we found that acts of extrajudicial killings, torture, sexual violence, arbitrary detentions, enforced disappearances and persecution amounted to crimes against humanity, was released on 1 November 2022.
This was my first foray into the world of People’s Tribunals, a concept which originated with the Russell Tribunal, named after Bertand Russell. That was a process he initiated together with Jean Paul Sartre, Simone de Beauvoir and other luminaries of the day to consider the American role in Vietnam. Since then, the People’s Tribunal concept has developed and evolved and many other tribunals have been established to consider a wide array of issues ranging from the coalition-led invasion into Iraq, the situation in Palestine, the situation in Kashmir, Japanese wartime practices related to sexual slavery, the treatment of refugees and migrants, the treatment of Uyghurs, climate change and the murder of journalists. And the list goes on.
People’s Tribunals tend to come into play when more traditional justice avenues are completely blocked or when the official narrative about what happened denies the space for other voices or perspectives. Either a regime has no interest in any kind of justice and will not be cajoled into a justice process. Or, there is a particular issue that is completely taboo in a country or which cannot be solved by bringing a case to court.
In the case of the Aban Tribunal, the Islamic Republic had authorised the violent crackdowns on protesters and in the aftermath of those events, had instituted a devastating campaign of intimidation against family members who had sought out information about how their loved ones had died or were calling out for justice. Authorities had also interrupted families’ burial rituals in order to deflect attention away from the many killings, preventing families from grieving their loved ones. Thus, there was no realistic prospect of domestic investigations or prosecutions of those responsible or any likelihood of an official acknowledgment of the wrongs done and the harms caused. Victims and witnesses, who faced significant risks of reprisals for their participation, testified, often by video link – with faces covered and voices distorted, from inside Iran. The opportunity to tell their stories to the world was one they could not pass up lightly.
People’s Tribunals are about drawing attention to problems that are not being solved by traditional courts, governments or others. These tribunals are intended to bring public attention to issues not sufficiently in the public domain; to build solidarity with victims; to provide some kind of ritualised forum in which evidence is evaluated and the moral weight of a conclusion is given; to serve as a catalyst either for later formal justice processes or for changing public opinion or inspiring political debate.
What makes “justice” justice? This is perhaps a philosophical or sociological question, it can also be considered anthropologically – what do we turn to a justice system to do for us? And when do we see that it has the power to deliver?
Do we do a disservice to victims if justice is not sanctioned by a government; if the results of this “contrived” justice process cannot result in “real” sanctions?
In some cases, a People’s Tribunal might make it more difficult to have a formal justice process afterwards (but sometimes the opposite with be the case). But often “real justice” is symbolic – victims will take cases to human rights courts that they know will not get enforced; but often the reason why victims bring cases to court is for an official body to acknowledge that they were wronged and that they suffered. It is important that there is official recognition that what was done to them was wrong and that they – the victims, are not to blame.
As such, it becomes a question of whether the People’s Tribunal is imbued through the rituals it cloaks itself with, with enough internal legitimacy that victims and communities see it as having the power to do justice in the form of acknowledgement.
In some cases, it will be important for the judges of People’s Tribunals to don robes, to use gavels, and to seem otherworldly, and to speak the language of the courtroom for the victims to believe that the justice ritual they are part of is “real” and “meaningful”. This was the case with the Aban Tribunal – it was our determined belief, based on our understanding of the situation and speaking with civil society that there was this overwhelming sense of impunity – the total and absolute absence of justice. Donning the rituals of the courtroom was therefore an important part of our process.
In other cases, it is the formal justice system that is alienating and has failed victims in the past; the People’s Tribunal will be embraced and seen as legitimate only if it gets stuck in with the community in a more visceral way.
Can justice exist without a government legitimising it?
In most societies, justice is like a social contract – the justice process helps reinforce the rules by which the society lives by. Justice that is fair makes communities feel comfortable to abide by the rules. Everyone knows their place. In this sense, justice is something a government uses to reinforce the rule of law within the society. When state actors commit crimes, subjecting them to the same scrutiny, to the same justice, reinforces the sense that everyone plays by the same rules. When the state exempts itself from the rules, this undermines the rule of law in society.
Before embarking on this People’s Tribunal journey, I was convinced that for justice to be meaningful it had to be done by the decision-makers. As someone who has worked a lot on the issue of reparations or remedies to victims, – reparations were always something the government or the direct perpetrators should provide – indeed, this was part of their social contract, their role in reinforcing the rule of law. When civil society groups or development agencies started getting involved in reparations, my sense was always that they were just muddying the waters; reparations means something specific; it is special – it is about the wrongdoers acknowledging the wrongs and harms that they caused. So similarly, a justice process needed to be set up by governments because of the role governments play, or should play, in society, in reinforcing the rule of law.
But with People’s Tribunals, I realised, the idea that victims and civil society create their own framework of justice when justice is not otherwise going to happen, recognises that a government does not have the power to deny justice – this itself is really powerful. When the government does nothing, the victims, the civil society, the international community say no – that is not alright; we deserve justice; if you won’t provide it, we will not allow you to block it for us; we will take matters into our own hands and create our own justice.
It recognises that justice as acknowledgement is a ritualised project, and it is not owned by governments.
The result can be very creative; participatory; and if done well, a really positive experience for victims that they wouldn’t get in a traditional courtroom.
How to avoid the accusation of Kangaroo Justice?
There will always be arguments that Peoples’ Tribunals are one-sided; that they are just a politically motivated tirade against a government. For any People’s Tribunal to have a positive effect, it must guard against this. It is the judges of the People’s Tribunal who need to control the process. They must give space for nuance, hear all possible arguments even if not all sides are participating, recognise that there are defence rights even if there are no accused. This is difficult, and not always as obvious as it should be.
The truth is never simple, the organisers of tribunals are advocates, with advocacy positions – it is important for judges/deciders of fact to be independent of that, to be as neutral as possible.
Another line of argument is that a Peoples’ Tribunal should not seek to resemble a court – the more they don the rituals of a court, but do not have the necessary checks and balances of a court, the more they veer towards kangaroo justice. However, one needs to consider the purpose of the People’s Tribunal – in some cases, it is set up precisely because the community has a real need for justice – and there is no accountability in the society – so becoming as “court-like” as possible is really important, for the victims and the ritual of the process.
For the Aban Tribunal, it was really important that we were a court – we wore robes, the witnesses were sworn in, the judges spoke in legalese and the judgment is a judicial ruling – but this obviously raises other challenges – we had to take special care about process, about fairness, about our own accountability.
Conclusions
People’s Tribunals play a really interesting part of the mix of justice processes. They are particularly important to adjudicate situations or issues which would not otherwise have benefited from adjudication. They also play an important role in expressing solidarity with victims and affected communities who often feel isolated in authoritative regimes.
The idea that justice comes only in one shape, or size, is evolving. This evolution is necessary in light of the many instances of absolute impunity around the world. But also, it can be very empowering and freeing to develop conceptions of justice that are centred on the needs of victims and communities.
In October 2021, Arne Vermeerbergen, Ayşe Uzun Demir, Charlotte Dickson and Parkhi Saxena took on this project. They came with varying degrees of prior knowledge, but for all of them, the scope and complexity of the project was a steep learning curve which they all took on with great enthusiasm. This was one of the six projects of the HRC Clinic of the University of Essex in 2021-22 (the annual report of the Clinic’s activities can be found here).
To give a brief overview of the scope of the project, there are 45 Thematic Mandate and 13 Country Mandate Holders, variously titled Special Rapporteurs, Independent Experts or members of a Working Group. They are supported by the Office of the High Commissioner for Human Rights (OHCHR). They are a Charter mechanism and so are not tied to any particular human rights treaty, but they all have their own separate mandates.
Clearly, the Country Mandate Holders focus on human rights in that country, but the thematic SPMHs focus on their mandate globally; they may issue thematic reports, communications, statements and undertake country visits on their mandate followed by a country report. SPMHs change regularly and a new one may have more or less knowledge of persons within the mandate of UNHCR.
Initially limited to refugees, UNHCR’s mandate has expanded over the past eight decades to include stateless persons and conflict-driven internally displaced persons (IDPs) within the Global Protection Cluster. And UNHCR staff move in and out of headquarters and between countries and regional offices in the field.
Maintaining links in such circumstances is not straightforward and the Clinic Project was about improving communication along with expanding interaction. The Team needed to learn all about the Mandates, but also about UNHCR’s mandate and its operations, as well as the interaction between different parts of the UN: UNHCR, OHCHR, and the independent Mandate Holders.
The desk-based research showed that there was a wide variation in engagement by SPMHs with persons in UNHCR’s mandate, and sometimes there was no carry-over when the SPMH changed. While there is an obvious link between the Special Rapporteurs on the human rights of internally displaced persons and on the human rights of migrants, nearly every thematic SPMH has some relevance to refugees, IDPs and stateless persons – violence and discrimination against women might spark flight and be a constant threat during protracted displacement, minorities are often persecuted and have to flee, the threat to freedom of religion and belief is often the reason for seeking refugee status abroad, transitional justice may be essential for refugees and IDPs to feel it is secure to return. To substantiate the desk-based research, the Team also interviewed SPMHs, their OHCHR support teams and relevant sections in UNHCR HQ and the regions.
Their report made clear the need for greater training for SPMHs regarding UNHCR’s protection mandate, but also for improving awareness of the usefulness of SPMHs to UNHCR’s field operations – UNHCR achieves most of its successes through quiet diplomacy from its in-country missions to 137 countries. Over 80% of the 100 million forcibly displaced persons within UNHCR’s mandate are living in low- or middle-income countries, many that are not party to any refugee convention or even international human rights law treaty. A lot of what UNHCR does has to remain confidential, in much the same ways as the ICRC. However, SPMHs can and should speak out about rights violations and while SPMHs are there for every victim, they are also there for refugees, IDPs and stateless persons.
What the Team also highlighted was UNHCR’s cross-border perspective compared to SPMHs that either are mandated for one country or are carrying out country visits. While the independence of all parties needs to be maintained, the potential for coherent and coordinated intervention cannot be doubted.
In recognition of their continued association with the project, the Team received the Essex Law School Bursary of the 2021-22 academic year. Furthermore, to promote their findings, the Team were invited by Peter Swiniarski of the HRLU, who hard worked with them all year, to speak at the UNHCR HQ in Geneva on 29 September 2022. They prepared over the Summer and then, with a little specific planning on the night before and in the morning, three of them in person, Arne, Ayşe, and Charlie, with Parkhi joining online from India as she prepared to take up her new position as Assistant Lecturer at Jindal Global Law School, presented in Lecture Room 4 in UNHCR to members of the HRLU and to about 40 field officers around the world.
A picture of the online presentation (inset: ongoing session in UNHCR HQ, Parkhi Saxena presenting online)
It was a fantastic success and the following day, a former Essex student, now based in Mogadishu for UNHCR, Sebastian Herwig, contacted Prof. Geoff Gilbert (who supervised the project) to congratulate them. This was insightful, beyond Masters-level, impactful research that will affect UNHCR, OHCHR and SPMHs as they all seek to enhance the human rights of persons within their mandates.
The Team summed up their year-long experience in a few words:
We were fortunate to work on a project that was incredibly interesting yet very challenging. We hope that the outcomes of our research can make a difference to UNHCR’s and SPMH’s work in building better lives for those forced from their homes.
Nature and conservation are inevitably harmed during armed conflict. The laws of armed conflict do provide some measure of legal protection for nature, but these rules are limited and vague. The recent adoption by the International Law Commission (a legal body within the United Nations) of a set of Draft Principles for environmental protection in relation to armed conflict is to be lauded. This post will briefly examine some of the main additions to the law in this area.
Armed conflict pollutes and destroys the environment, often leaving a permanent scar on the landscape and biodiversity of affected states. The Russian conflict in Ukraine, for example, demonstrates the devastation caused to fauna and flora when states engage in warfare on a massive scale in areas rich in biodiversity. It also witnessed a horrifying few weeks as the world saw what happens when warfare takes place in a nuclear-powered state. Thus, from the destruction of targets in forests or protected areas, to collateral harm caused by oil spills in the marine or desert environment, toxic chemical pollution from abandoned munitions, destruction of agricultural lands, and destruction of wildlife – armed conflict inflicts a multitude of harms on the natural world.
The WCEL Specialist Group on Peace, Security and Conflict has, therefore, been following closely the work of the International Law Commission (ILC) on its programme of work on the Protection of the Environment in relation to Armed Conflict. In May 2022 the ILC adopted the final version of its recommended 27 Draft Principles, sending them to the General Assembly for final consideration before adoption. Many of the Draft Principles are already rooted in international law, while some provide best practice guidance.
The culmination of over ten years work, there is no doubt that the Draft Principles represent a significant moment in the advancement of legal protection of the wartime environment. Before the creation of the Draft Principles, the current ILC Special Rapporteur, Ambassador Marja Lehto, opined that there was no “coherent legal framework for the protection of the environment in relation to armed conflict”. The approval of the ILC mandate by states, therefore, reflected an acceptance that the law in this area was inadequate, ill-defined and outdated. Certainly, there are limited treaty rules protecting the war-torn environment, particularly in civil wars – the most prevalent type of conflict. Thus, the Draft Principles draw together an extensive body of rules covering both international armed conflicts as well as civil wars (non-international armed conflicts) and are addressed to a wide range of non-state actors.
Two key dimensions of the ILC’s analysis warrant fanfare. Innovative was the decision to take a holistic approach, ensuring analysis of the legal protections afforded not just during conflict, but prior to the outbreak of conflict and post-conflict. Methodologically unique, this temporal approach allowed for the second innovative approach, namely a focus beyond the laws of armed conflict. Any area of law today is a complex web of interactions between hitherto distinct areas of law. Throwing off the shackles of a pure laws of armed conflict analysis, the ILC undertook a comprehensive analysis of the issues, drawing from areas such as environmental law, human rights law, arms control and business and human rights obligations. Having said that, it is still less than clear how these other legal regimes apply during the combat phase of conflict.
The Draft Principles are, thus, a blend of treaty law, including the laws of armed conflict, and novel guidance or best practice (known as ‘progressive development’) – which states and other actors are encouraged to follow. For example, Draft Principle 16 reiterates the clearly established treaty rule that pillage of natural resources is prohibited (effectively theft during conflict), and Draft Principle 14 the equally clear application of the foundational laws of armed conflict to the environment, such as the principles of distinction, proportionality and precautions. Novel rules are included on cooperation for post-conflict environmental assessments and remedial measures (DP 24) for example. A key one of which is the obligation for removal of toxic or other hazardous remnants of war (DP 26).
The novel structure has certainly helped the Special Rapporteurs to approach the issues from new angles, highlighting novel issues for consideration. One example being the post-conflict part, which analysed obligations of environmental remediation, liability and cooperation – issues which are generally omitted from legal instruments and are proving rather elusive in the current Russia-Ukraine conflict.
The recent humanitarian crisis created by the Russian invasion of Ukraine, when added to the plethora of other events causing people to flee their homes and lands, such as climate-related events, has pushed the number of IDP’s and Refugees above an estimated 100 million people globally according to UNHCR. Thus, displaced people must be considered during armed conflict, as must the environment that they are inhabiting. Environmental protection of lands housing displaced persons is, therefore, a welcome addition to the Draft Principles, particularly in a world where displacement is increasing at a dramatic pace. Draft Principle 8 on Human Displacement takes a novel look at the issue, recommending that states not only ‘protect the environment where they are located’, but also provide ‘relief and assistance for such persons and local communities’. Importantly, environmental protection also extends to areas of transit.
Draft Principles 10 and 11 on Corporate Due Diligence and Corporate Liability respectively require that states ensure business enterprises ‘exercise due diligence and protect the environment and human health’ in conflict-affected areas. These two provisions are an important addition to the field to deter corporate actors from preying on local populations and natural resources during such turbulent times, and preventing conflict financing through the exploitation and trade in such commodities.
Implementation of the Draft Principles will be the final step with states expected to implement them through domestic law and military manuals. They present a concise statement of law in one document, undoubtedly expanding the law on certain issues. Thus, the Draft Principles will undoubtedly serve as a point of dialogue for states to further the discussion of how to protect the environment during the conflict cycle.
Fernando Bordin wrote “Codification conventions and draft articles completed by the International Law Commission are often – and increasingly – invoked by courts, tribunals, governments and international organizations as ‘reflections of customary international law’.”
The Draft Principles, therefore, represent, an important opportunity to make a tangible, meaningful difference in the lives and environment of people caught in the crosshairs of conflict.
This article was first published on the website of the International Union for Conservation of Nature (IUCN) and is reproduced on the ELR Blog with permission and thanks. You can read the original piece here.
More about the authors:
Professor Karen Hulme, School of Law, University of Essex, UK, specializes in the legal protection of the environment during armed conflict. She has published on environmental human rights, environmental security, post-conflict obligations, the legality of specific weapons, as well as climate change, biodiversity/nature protection, oceans and protected areas. Karen is Chair of the IUCN WCEL Specialist Group on Environmental Security and Conflict Law.
Elizabeth B. Hessami, J.D., LL.M. (Environmental Law), is a licensed attorney and Faculty Lecturer of International Environmental Policy and Environmental and Natural Resources Security for Johns Hopkins University. She has also served as a Visiting Attorney for the Environmental Law Institute (remote) for several years.
Professor Carla Ferstman is a member of the Justice Rapid Response (JRR) Sexual and Gender-Based Violence Justice Experts Roster. She recently wrote a research paper for JRR on the investigation of sexual exploitation and abuse (SEA) allegations involving children.
Prof. Ferstman and Fabian Ilg recently conducted an interview with JRR about the research paper. Their responses are reproduced on the ELR Blog below with permission and thanks.
Carla, As the author of the report, could you summarize the key findings and its recommendations?
The purpose of the report is to explain the key challenges to investigate allegations of sexual exploitation and abuse involving child victims. It is not a “how to” guide, but there are several clear messages to the report.
First, allegations of SEA involving child victims are likely to happen in settings that present unequal power dynamics. This will include fragile settings whether impacted by conflict, insecurity, weak governance, poverty, disease, or natural disasters. Because of this likelihood, all humanitarian agencies and organizations working in these environments need to actively prepare for such eventualities. Hoping that it won’t happen is simply not a good enough strategy. Active preparation includes having clear child-friendly policies in place, being proactive about uncovering child SEA, having specialist staff on hand, and taking effective steps to mitigate the risk of SEA involving child victims.
Second, agencies and organizations should ensure that their policies and practices maximize the rights of child victims. Ensuring the best interests of the child in relation to SEA investigations is not only about protecting children from psychological and other forms of harm during investigations; it also requires that children’s rights to information, to participate in investigation processes, to justice and to reparations are all maximized to the greatest possible extent. How child victims are consulted during SEA investigations should reflect their evolving capacities and their maturity. Third, agencies and organizations should recognize and address the conflicts of interest they often have when conducting SEA investigations. This includes ensuring children have access to independent advice and support about how best their interests, needs and rights can be respected during a SEA investigation and subsequently.
Being the first report of its kind, dedicated to exploring the issue of SEA investigations through a child-centered perspective, what do you hope it will achieve?
It is hoped that the report will raise awareness about a really complex issue that arises all too often in humanitarian settings.
Hopefully, it will spur agencies and organizations to action, so that the needs and rights of child victims can be met and so that accountability for this horrific crime can prevail.
Fabian, why do you feel that this project and paper are important and needed?
First, I am very proud and glad to have had the opportunity to participate in this very important project and to bring in some of my own experience from the field while investigating different SEA cases involving children (CSEA) over many years, both as a JRR expert and as a professional in law enforcement.
This report is one of the most complete documents created about this topic and fills a large void. Over the past years, the focus to improve protection of CSEA victims has increased a lot. As a result, organizations working in the humanitarian sector have needed guidance and specific standards to prevent CSEA, as many CSEA cases still occur regularly all over the world. Now more than ever, it is very important to do the utmost to protect children, the most vulnerable human beings, to treat them with respect during this process, and to start helping survivors to make their future life as bearable as possible. This report provides the needed guidance in a comprehensive manner, and is therefore a perfect tool for all who may be involved with CSEA during their work.
As someone who has conducted SEA investigations, how do you have to adapt your approach to investigate SEA against children?
SEA investigations are very complex on different levels. CSEA investigations are an even greater challenge. In many cases, material evidence is missing and the victims’ voice is the only proof. Relationships of dependency and abuse of power are some of the usual modus operandi used by perpetrators, to make victims appear to have wanted the sexual contact. In court, judges follow the strong voice of the lawyers of the perpetrators and the statements of adults often have a much higher weight than that of children. Children are very vulnerable and can often not distinguish between right and wrong, and as such their judgement is viewed as limited. Furthermore, the chances of their re-victimization at a later point in time are sadly quite high.
This makes CSEA very different from SEA. We, as CSEA investigators, have a grave responsibility to protect these young victims, and must do so by putting them in the centre of the investigation. This starts with ensuring all their rights are protected during the investigation process. Among other things, to be interviewed is a very traumatic experience for a child. The victim-centred approach is in many ways the most critical step to support a child and provides them with the chance of having a bearable life in the future.
Investigations into alleged violations of international humanitarian law and international human rights law in armed conflict are crucial to the implementation of these bodies of law.
There are, however, numerous legal and practical challenges that arise when considering a State’s obligations under international law with regard to such investigations.
These include establishing the bases and scope of the duty to investigate under both bodies of law, and determining the way in which these investigations must be carried out.
Furthermore, addressing the framework for investigations in armed conflict necessarily requires an examination of the interplay of international humanitarian law and international human rights law.
In her new chapter in the latest edition of the Research Handbook on Human Rights and Humanitarian Law, Dr. Claire Simmons, a researcher at the Essex Armed Conflict and Crisis Hub (under Essex’s Human Rights Centre), focuses on the concept of effectiveness of investigations under international law.
Dr. Simmons addresses, in particular, the legal and practical challenges surrounding the conduct of investigations in armed conflict, taking into account the complementary way in which both bodies of law interact.
Research Handbook on Human Rights and Humanitarian Law, edited by Robert Kolb, Gloria Gaggioli, and Pavle Kilibarda
Ahmad al-Faqi al-Mahdi (Mr. Al Mahdi) was brought to the International Criminal Court to stand trial for his involvement in the destruction of several historical and religious sites in Timbuktu (Mali) during an armed conflict in 2012. This was the first time in the history of international criminal justice that an individual was prosecuted for the destruction of cultural heritage alone.
Following his guilty plea and conviction in 2016, the case moved on to the reparations phase where the focus was that of redressing the harm caused to victims. Therein, the unprecedented nature of the Al Mahdi case led to an equally unprecedented question: who are the victims of cultural heritage destruction?
Drawing upon her personal involvement in the case as a Court-appointed expert, Dr. Marina Lostal, Senior Lecturer at the University of Essex, has published an article explaining how this question was resolved and the practical challenges it posed during the implementation phase.
The challenges encountered are labeled as ‘monumental’ because they had one thing in common: the amount of theoretical thinking and reflection that they deserved was inversely proportionate to the urgency with which they had to be addressed and the precedent they would establish. To surmount this, drawing from the author’s background, the Trust Fund for Victims turned to academia and consulted with scholars.
The article focuses on three of such challenges:
(i) whether ‘unborn children’ should be included in the pool of victims given that cultural heritage is meant to be preserved for the benefit of future generations;
(ii) what place women ought to occupy in the implementation of reparations, despite the customary practices of side-lining them; and
(iii) the decision of whether to memorialize events surrounding the crime.
On the latter point, the article introduces the concept of ‘restorative agency’, a working principle that was adopted in the context of memorialization measures to ensure that victims are given a platform to decide, not a decision.
Lastly, Dr. Lostal’s article provides a framework to demonstrate the level of complexity involved in the implementation of any Court-ordered reparations and reveals some of the work of the Trust Fund for Victims, one of the Court’s least comprehended creations.
Article full citation: Marina Lostal, Implementing Reparations in the Al Mahdi Case: A Story of Monumental Challenges in Timbuktu, Journal of International Criminal Justice, Volume 19, Issue 4, September 2021, pp. 831–853, https://doi.org/10.1093/jicj/mqab064
States must investigate possible violations of international humanitarian law in armed conflict, and many of them use military procedures for all or part of the investigation process.
Particular tensions can arise with regard to the perception of justice in the context of military judicial procedures, especially surrounding questions of independence and impartiality.
In her new article, Claire Simmons, Senior Research Officer at the University of Essex School of Law and Human Rights Centre lays out the international legal framework which should be used to solve these challenges.
The article argues that a State must address both the specificities of military institutions and the need for a perception of justice by the affected communities in considering the proper administration of justice in armed conflict.
Here is a 30-second video summary of Claire’s article:
The article is published in a special edition of the International Review of the Red Cross on Emerging Voices of International Humanitarian Law, Policy and Action, and can be accessed herefor free.
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.
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