Public International Law

Prohibited Force: The Meaning of ‘Use of Force’ in International Law. New book launch and in conversation with Dr Erin Pobjie 

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By Dr Erin Pobjie, Lecturer at Essex Law School

Dr Erin Pobjie has just published Prohibited Force: The Meaning of ‘Use of Force’ in International Law (CUP, 2024). Dr Pobjie made use of the University’s dedicated open access (OA) fund to ensure that her book is freely available to students, scholars, and readers everywhere. You can download your copy here.  

Dr Pobjie has kindly answered some questions about her work, her choice to go open access and future projects. 

Congratulations on the publication of your new book! How does it feel to have it published and freely available? 

Thank you! The book is the culmination of a long process, starting with my PhD at the University of Cologne and continuing through my post-doc at the Max Planck Institute in Heidelberg and then as a new lecturer at Essex University. There were many highs and lows over that period and I learnt so much along the way, so it feels emotional and very satisfying to see it finally out.  

You chose to make use of the University’s open access fund. Why is open access important to you and how do you think it will benefit your work?  

I believe in the principles of open science so it was important to me to publish my book OA. Publishing OA allows me to share my ideas more broadly and without financial barriers, so that my book can hopefully contribute to scholarship, policy and practice on this important topic. Having poured so much into the project, I’m happy that it’s freely available open access thanks to the University’s OA fund. 

How did you find the open access process?  

It was fairly straight forward once the funding became available. The Open Access team at the University liaised with my editor at Cambridge University Press and were very helpful and responsive in supporting me throughout the process.   

What advice about open access, or publishing in general, would you offer to colleagues? 

My advice would be to seek feedback early and often, to be proactive throughout the publication process and to advocate for the ideas in your book so that they can contribute to the conversation. These are things I would try to do better next time. It continues to be a learning process now that I’m in the next phase of post-publication, so it’s been very helpful to speak to other colleagues who have recently published books for advice. 

Now, about your book, which feels incredibly timely: how did the idea come up and could you explain the key ideas of the book? 

The seed for the idea was planted during my LLM at Essex, where I was inspired by the module ‘International Law of Armed Conflict’ taught by Professor Noam Lubell. The first class was about jus ad bellum – the prohibition of the use of force between States. I was captivated by the topic and thought it could be a way to contribute to a cause I feel passionate about (the prevention of war) by exploring and clarifying fundamental legal concepts. Noam introduced me to my future doctoral supervisor, Professor Claus Kreß at the University of Cologne, who encouraged me to focus on the meaning of prohibited force.  

The prohibition of the use of force between States is a cornerstone of the modern international legal system and key to international peace and security, but its meaning is unclear. This is especially problematic for uses of force in newer domains like cyber and outer space, or that use emerging technologies. My book therefore seeks to clarify the meaning of prohibited force and proposes a definitional framework that can be applied in practice to identify illegal uses of force. To do this, I analyse the sources of the prohibition (article 2(4) of the UN Charter and customary international law) and their relationship, identify the elements of a prohibited use of force and set out a framework to define a prohibited use of force.  

In a nutshell, my argument is that a ‘use of force’ under article 2(4) of the UN Charter describes a type rather than a concept. This means that rather than consisting of a checklist of necessary and sufficient elements (a concept), it consists of a basket of elements which must be weighed and balanced to determine whether the threshold of the definition is met (a type). According to this framework, not all elements must be present for an act to constitute prohibited force if they are compensated by other elements. For example, a hostile or coercive intent may turn a forcible act into a use of force even if other elements are relatively weak, such as a low gravity or if the harm is only potential but unrealised. The final part of my book applies this framework to illustrative case studies, including the use of force in outer space. 

What’s next for you? Do you have new projects lined up? 

I was recently appointed as co-Rapporteur of the International Law Association’s Committee on the Use of Force, a committee of global experts on the law on the use of force to draft a new report to bring normative clarity to the area of ‘military assistance upon request’ (a.k.a. intervention by invitation). The Committee has a mandate until 2026 to produce the report, so together with my co-Rapporteur Professor James Green I am taking the lead in carrying out the work of the Committee and drafting our report on this topic, with conclusions and commentaries to provide guidance for States. 

I’m also excited to have the opportunity to apply the framework I developed in my book to outer space security at the United Nations. I’m currently undertaking a residential fellowship at the United Nations Institute for Disarmament Research in Geneva in their Space Security Programme, where I’m producing a policy report on the use of force in outer space. Humans globally depend on the preservation of safe, secure and sustainable uses of outer space, including for communications, global navigation systems (which underpin banking, financial markets and energy grids), disaster emergency response and humanitarian relief, food production and climate science. These are all placed at risk by military uses of outer space. The policy report will raise awareness of legal restraints on space threats under international law, which must be considered when negotiating and developing new norms for the prevention of an arms race in outer space.  

I’m enjoying the mix of doctrinal research and policy engagement and am grateful to have the opportunity to further develop and apply the ideas from my book following its publication. 

Prohibited Force: The Meaning of ‘Use of Force’ in International Law is available online and open access through Cambridge University Press. In case you would also like to purchase a hardcopy of the book, you can use the code POBJIE23 on the publisher’s website for a 20% discount until 31 December 2024. DOI: https://doi.org/10.1017/9781009022897.

Do you want to publish your work Open Access? Just complete this brief form and the Open Access team will soon be in touch. More information about making your research available open access can be found on the Open Access Publishing webpage, and you can also get in touch with the OA team via oapublish@essex.ac.uk.  

Essex Law Scholars Tackle Corporate Accountability and Human Rights at the U.N. Forum on Business and Human Rights

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The UN Human Rights Council room ceiling in Geneva

From 27-29 November, the United Nations in Geneva will host its 12th annual U.N. Forum on Business and Human Rights. Essex Law School scholars Drs Jessica Lawrence and Tara Van Ho and Professors Sabine Michalowski and Clara Sandoval will attend to share their work and insights in the field.

In addition to hosting an event for our Alumni, Professors Michalowski and Sandoval and Dr Van Ho will speak at side events, focusing on issues arising from business operations in conflict-affected areas.

Professors Michalowski and Sandoval will address a side event organised by the Colombian Mission on the potential of securing accountability for business actors by that state’s Special Jurisdiction for Peace (JEP). They will join Roberto Vidal, a member of the JEP. This event, titled “Accountability of economic actors for grave human rights violations as part of transitional justice processes” will be delivered in English on Monday, 27 November from 11-12.30pm in Room VII at the Palais des Nations.

This year, Dr Van Ho will speak at a side event organised by Pax for Peace and Swedwatch on the controversial corporate merger and acquisition of Swedish company Lundin with Norwegian company Aker BP. The event is taking place on Tuesday, 28 November from 10:45-12:00 GMT (11.45-13.00 CET).

The remainder of this post will address the controversy of the Lundin-Aker case and information about our alumni gathering in Geneva.

Dr. Tara Van Ho
Professor Sabine Michalowski

Allegations of war crimes by Swedish company Lundin 

Non-governmental organisations and victims have long alleged that Lundin was complicit in war crimes committed in Sudan between 1998-2002 (the location is now located in South Sudan following the state’s 2011 independence). Allegedly, Lundin asked the Sudanese military to ensure the security of their oil field with either knowledge or indifference that this would result in the commission of war crimes.  

In 2010, Swedish prosecutors opened an investigation into the allegations. Under international law, statutes of limitations should not apply to war crimes. On 11 November 2021, Swedish prosecutors charged the company’s then-Chief Executive, Ian Lundin and its former vice president, Alex Schneiter, with complicity in those crimes. Both the company and the two men deny the allegations. After a challenge from Schneiter was denied by the Swedish Supreme Court, the case was scheduled for trial, which began earlier this year. 

As Dr. Van Ho has previously discussed on the prominent international justice podcast Asymmetrical Haircuts, transnational criminal prosecutions of corporate executives for war crimes remain rare, despite a large number of significant and well-substantiated allegations against multinational corporations. 

In 2014, Dr. Van Ho published her chapter on the rarity of successful corporate criminal prosecutions for human rights and humanitarian law violations in conflict-affected areas and oppressive regimes. Since then, the landscape of corporate criminal prosecutions has not significantly changed, making the Lundin case the most significant prosecution of corporate executives since the Nuremberg trials.  

The 2014 piece was only one in a series by Dr. Van Ho exploring the responsibility of corporations for terminating and remedying human rights violations committed in the context of conflicts. She now has a grant from Open Society Foundations for a study into the business responsibility to remediate international crimes, including war crimes, and the standards businesses should apply when exiting a conflict-affected area.   

The controversial acquisition by Aker 

On 21 December 2021—approximately five weeks after the Swedish prosecutors announced its charges—Aker announced its acquisition of Lundin, to be carried out in three stages starting in July 2022. The merger allegedly leaves just enough assets to cover any criminal fines levied as a result of the prosecutions but would deny remedies to Sudanese and South Sudanese victims.

Those victims were expected to make civil claims against the company following a successful criminal prosecution, a common practice in civil law states that both reduces the potential of conflict civil and criminal judgements as well as the costs and risks victims must otherwise undertake themselves when litigating a civil claim against a large multinational company. The arrangements for the merger and acquisitions also appear to include a clause indemnifying Aker from any further claims brought against Lundin as a result of its actions in Sudan.  

In other words: the acquisition appears to deny the South Sudanese victims of war crimes an opportunity to pursue their right to an effective remedy. 

A Panel Discussing the Effort to Secure Justice 

In response to the merger and acquisition, 8 South Sudanese and European NGOs have filed a complaint before the OECD National Contact Point in Norway alleging Aker BP failed to adequately conduct the human rights due diligence expected of the company under the OECD’s 2011 Guidelines for Multinational Enterprises.  

Dr. Van Ho has a forthcoming book chapter, co-authored with Dr Eugenio Vaccari of Royal Holloway, on the need for human rights due diligence during corporate insolvency proceedings, a topic intimately related to the denial of remedies through corporate mergers and acquisitions. She has spoken with Dr Vaccari and others about the issue of remedies in corporate insolvency proceedings as part of the INSOL International podcast. 

In Geneva, Dr. Van Ho will discuss the intricacies of this case, focusing on how the right to an effective remedy should factor into mergers and acquisitions and what both the prosecution and the OECD complaint should tell us about the state of corporate accountability in the context of conflict.  

While in-person capacity in Geneva is limited, the event will also be live-streamed and you can register to attend the event here.

From Judgment to Justice: Discussing the Implementation of International Judgments on Socio-Economic Rights in Johannesburg

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Dr. Casla’s visit to the South African Constitutional Court

By Dr Koldo Casla, Senior Lecturer in Law and Director of the Human Rights Centre Clinic

In the first week of November, I participated in a workshop on advancing the implementation of positive rulings on economic, social, cultural and environmental rights. The event took place in Johannesburg, South Africa, and it was jointly convened by Amnesty International and the International Network for Economic, Social and Cultural Rights (ESCR-Net). Taking stock of the discussion, some of us also held a meeting of the steering committee of the working group on strategic litigation of ESCR-Net.

The event gave us the opportunity to talk about specific examples of what is working and what not in strategic litigation around the world, with a particular focus on cases from Africa (South Africa, Kenya, Gambia and Malawi), but also from India (workers’ rights and the right to food), Canada (right to health of undocumented migrants), Ecuador (land rights of Sarayaku indigenous people) and Spain (evictions in the private rental sector).

The team deliberated on strategic approaches to address the challenges posed by the uncertainties associated with litigation and its enduring consequences. Emphasis was placed on the critical role of civil society in spearheading the identification of concerns and the implementation of judicial decisions.

We had the privilege of visiting the South African Constitutional Court, possibly the most important national court as regards the justiciability of socio-economic rights globally. The building is full of symbolism appealing to values of transparency, culture and accessibility of justice. It is built on top of the remains of a brutal prison of the apartheid regime. Gandhi and Mandela spent time there. The location is a powerful message about learning from the past to build a more promising future founded on the principles of the rule of law and human rights.

From the cells in the prison on Constitution Hill, where the Constitutional Court is located.

The occasion was also an opportunity to express solidarity with the Ogiek indigenous people in Kenya. Some of the community leaders were present at the workshop. Despite several rulings from the African Commission on Human and Peoples’ Rights, the Ogiek have suffered repeatedly violations of their human rights, including further evictions from their ancestral land.

An action in solidarity with the Ogiek people of Kenya, who have suffered multiple evictions and other human rights violations, as documented by the African Commission and Court of Human and Peoples’ Rights.

At the event, I talked about the UN Committee on Economic, Social and Cultural Rights (CESCR) as a venue for strategic litigation on housing rights in Spain. The Optional Protocol on Economic, Social and Cultural Rights was adopted in 2008 and entered into force in 2013. It allows individuals to lodge complaints in front of the CESCR against States Parties for violations of socio-economic rights. To this day, 26 countries have ratified this treaty. Spain was the third country to do so, the first one in Europe.

More than 90% of CESCR decisions concern Spain, and the vast majority of them are about the right to adequate housing. One of the most significant cases is Ben Djazia and Bellili v Spain (2017), where the CESCR made two big contributions to international human rights law: firstly, it established that the proportionality test applies to the private rental sector as well as the public one; and secondly, it ruled that the State had breached the principle of non-retrogression because in the background of the eviction there had been a large-scale sale of some 4,000 social housing units by regional authorities in Madrid to transnational real estate investment trusts.

Dr. Casla presented the Ben Djazia case at the workshop

Since 2019, Spain’s legislation has been amended several times, and some of those amendments have brought to life some of the recommendations of the CESCR. Not all recommendations have been taken onboard yet; in particular, the issues of progressive realisation and the adoption of a national plan have not been given due consideration.

However, judges are now given the opportunity to look at personal circumstances (while not obliged to do so), and there is an expectation of coordination between the judiciary and social services before an eviction is executed (but not a specific timeframe or duties on public authorities). Housing laws at regional as well as central/national levels have created additional duties for large landlords over small landlords, which the CESCR considers part of the proportionality test (López Albán v Spain, 2019).

The experience of strategic litigation on housing rights in Spain has taught us some valuable lessons.

Firstly, sometimes human rights progress comes from non-human rights litigation. In the case of Spain, the first major court victory was the Aziz case (2013), where the Court of Justice of the European Union ruled that foreclosure procedures must give judges the chance to look for potential unfair terms in the contract, opening the door to a kind of proportionality test. This ruling was based on consumer law (EU 1993 Directive), not human rights law.

Secondly, recent legal developments in Spain are a reminder that parliaments can play a central role in the implementation of international human rights rulings. After all, hardly anything can beat securing a majority in parliament for human rights-friendly legislation.

Thirdly, recent developments also show that in federal or quasi-federal countries, regions can indeed learn from each other in a sort of laboratory for democracy. As I show in Chapter 5 of Spain and Its Achilles Heels, I would argue that this is precisely what happened between several of Spain’s regional legislative chambers between 2013 and 2017.

Finally, we must not make perfect the enemy of the good. Not all of the CESCR recommendations have been implemented in Spain. The situation is far from perfect. Even those that have been implemented have been implemented only to some extent. However, in the spirit of joyful advocacy, it is important to celebrate victories when they occur, including partial victories, even if we do not achieve everything we may hope for.

Illegal Migration Bill: Essex Law School experts on the international system of protection against arbitrary detention express concerns in their written evidence to the JCHR

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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.

garahan_gillett_illegal-migration-bill_jchr-evidenceDownload

A Proposal for a Policy and Structural Change in the Interpretation and Application of the International Criminal Court’s Principle of Complementarity for the Achievement of Victim-oriented Justice

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Dr. Miracle Chinwenmeri Uche concluded her PhD programme under the supervision of Professor Lars Waldorf, Dr. Marina Lostal and Dr Clotilde Pegorier. Her thesis is titled ‘Victim-oriented Complementarity is the Key: A Proposal for a Policy and Structural Change in the Interpretation and Application of the International Criminal Court’s Principle of Complementarity for the Achievement of Victim-oriented Justice’.

The thesis examined the International Criminal Court (ICC) principle of complementarity through the lens of victim-oriented justice, i.e., justice that considers and accommodates victims’ needs and interests procedurally and substantively within the limits of criminal justice processes.

Complementarity, the chosen form of jurisdictional relationship between the ICC and its States Parties, is key to the Court’s existence and sustainability. It is inter alia a tool for deciding who between the ICC and states, can exercise jurisdiction over war crimes, crimes against humanity, genocide, and aggression (core international crimes).

For victims of core crimes, complementarity is much more than that; it has implications on whether justice will be served, who will investigate and where necessary prosecute — the ICC or states? Where will these proceedings take place, in The Hague or in domestic jurisdictions? Which victims can participate? How will justice be shaped?

Given the centrality of the principle of complementarity to the Rome Statute system, the thesis’ main aim was to propose ways for turning complementarity into a fulcrum for the pursuit of victim-oriented justice in the Hague and fostering the same in domestic jurisdictions.

For this purpose, the thesis asked two main research questions; firstly, how has the ICC interpreted and applied the principle of complementarity in relation to victims? Secondly, how can victims’ interests be adequately accommodated in the complementarity regime and process to aid the ICC in the fight against impunity and in achieving victim-oriented justice? To address these questions, the thesis analyzed the ICC’s complementarity, and victim jurisprudence using the doctrinal research method.

In response to the first research question, the thesis argued that victims’ needs, and interests were minimally considered in the development of the principle of complementarity; the focus was on sovereignty protection and prosecutorial issues. This is replicated in complementarity provisions within the Rome Statute, the ICC’s case law and practice. Admissibility determinations at the ICC tend to focus on issues of investigations and prosecutions of a small number of situations and cases, and the exercise of jurisdiction by the Court or states. This problem is exacerbated by the structure of the ICC’s main complementarity body — the Jurisdiction, Complementarity and Cooperation Division (JCCD) which does not include a victims’ representative. The thesis argued that sustaining a sovereignty and prosecutorial-focused approach to complementarity will circumscribe, if not eclipse the ICC’s ability to pursue victim-oriented justice and galvanize states to do the same.

Thus, in answering the second research question, the thesis argued that a re-interpretation of the principle of complementarity and the creation of an independent, inclusive ICC complementarity body are crucial to ensuring that victims’ needs, and interests are adequately considered and accommodated throughout all stages of proceedings.

The thesis’ original contribution is twofold; it outlines a reinterpretative framework for the introduction of victims’ needs and interests into admissibility determinations by the ICC. It is the first study to propose a design for an inclusive, neutral, and independent ICC complementarity division based on the existing Rome Statute regime.

The thesis also contributes to the discussions of ways in which the ICC’s relationship with African states and the African Union can be improved in the interests of victims, and the role this can play in bringing the Rome Statute closer to becoming a universal treaty.

Dr. Miracle Chinwenmeri Uche is now employed as a Lecturer at the University of Exeter. She is currently working towards publishing a monograph and journal articles from her thesis to apply her proposals to ongoing situations and cases before the ICC. She intends to further investigate the potential impact of a new and improved complementarity mechanism on victims, the ICC’s work, and workload.

Investigations in Armed Conflict

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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

Chapter full citation: Claire Simmons, ‘Investigations in Armed Conflict’, in Robert Kolb, Gloria Gaggioli, and Pavle Kilibarda (eds), Research Handbook on Human Rights and Humanitarian Law: Further Reflections and Perspectives (Elgar 2022).

Nazanin Zaghari Ratcliffe: Her Journey to Freedom and the Lessons We Can Learn

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Photo of Richard Ratcliffe at the candlelit vigil outside the Foreign Office on Friday 05 Nov. 2021, eleven days into his hunger strike, via Flickr.

Professor Carla Ferstman is a lawyer and an activist. Before joining the School of Law in 2018, she directed REDRESS, an organization dedicated to helping torture survivors in all parts of the world to seek justice for all the harm they suffered. That is where she first met Richard Ratcliffe, the husband of Nazanin Zaghari Ratcliffe who was released earlier this week on 15 March 2022 after almost six years of being kept as a hostage in Iran.

Kate Clayton, Senior Communications Officer at the University of Essex, spoke to Carla to find out more about her perspective on Nazanin’s journey to freedom and to ask her what lessons we might be able to draw from her case.

Why has the plight of Nazanin and her family resonated with so many people in the UK and beyond?

On a human level, it is hard to fathom what it must feel like to have one’s family torn apart by such an arbitrary, brutal act and to feel so powerless over so many years. So this was about compassion first of all. But also, Richard’s advocacy, his unwillingness to be quieted in the face of the injustice he and Nazanin faced helped to bring and keep people on board.

Do you think there were any turning points in the campaign?

Yes, several, and I will focus on the positive ones.

First, is the recognition by the UN Working Group on Arbitrary Detention that Nazanin’s detention was arbitrary, that she was likely to have been arrested because of her status as a dual Iranian-British national, and that she should be immediately released. This 2016 decision made it clear that this was no ordinary criminal case where the UK should sit back and wait for justice to take its course. No, Nazanin was being targeted. Removing the veneer of a criminal justice justification for her detention was really important because it helped to move the UK Government towards a position where it understood that it had to act. Passivity was not an option.

Second, was the coming together of many of the families of detainees, mainly dual nationals and Iranian nationals with foreign links. This was crucial to change the narrative about what was happening. All the stories were so similar – this was a form of hostage-taking. It was also important to counter isolation and build a sense of common solidarity. 

Third, was the 2019 decision by then Foreign Secretary Jeremy Hunt to grant Nazanin diplomatic protection, meaning that the UK Government had recognised formally that the harm caused to Nazanin was a harm to the UK Government and one for which it could intervene as a state to state claim. This was a landmark recognition.

Fourth, was the March 2022 repayment by the UK of a £400m debt that had been outstanding since the 1970s in relation to an outstanding order for military equipment.

You managed to involve Essex students in the campaign. How did this go?

Iran’s human rights record was being considered by the UN Human Rights Council in Geneva through its universal periodic review process. The students, under the auspices of the Human Rights Centre Clinic helped prepare a submission on behalf of seven families to highlight the injustice of their situation. This came at a really important time and was a start of much more robust joint advocacy by families of detainees. This was quite a unique opportunity for the students to work on such a concrete, live case involving real people undergoing serious human rights violations in real-time.

Have campaigns like this impacted your academic research?

Indeed, I just recently co-authored with my colleague Dr Marina Sharpe a journal article which considers whether the arbitrary detention of dual and foreign nationals in Iran violates the Convention on the Taking of Hostages and may constitute a crime against humanity. We hope this will be useful to ongoing scholarly debates and also assist the many organisations who are following these issues and governments whose citizens continue to be affected by the practice.

What do you think comes next for Nazanin and Richard?

One of the wonderful things about the freedom they now have is that it is absolutely for them to figure out their next steps. Something we may all take for granted, I imagine for them feels very luxurious.

What next for the other cases?

There are still so many people who remain arbitrarily detained in Iran in a hostage context, many for multiple years, under very difficult circumstances. And the practice is also happening in more and more countries. The advocacy must continue until the practice stops.

This piece was first published on the Blog of the University of Essex and is reproduced on the ELR Blog with permission and thanks.

Reparations Before The International Criminal Court: Who Are The Victims of Cultural Heritage Destructions and How Should Their Harm Be Addressed?

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Source: Wikimedia Commons

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

Whose Perception of Justice? Real and Perceived Challenges to Military Investigations in Armed Conflict

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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 here for free.

Posthuman International Law and The Rights of Nature

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Photo by David Marcu

Both posthuman theory and the rights of nature (RoN) movement have the potential to challenge the anthropocentrism of international environmental law (IEL).

Scholars have begun to document the transformative shifts that could occur through the application of posthuman legal theory to IEL, but these theories have yet to be applied to law in practice.

On the other hand, RoN have been applied in domestic law but hardly in international law, while the question of what RoN includes and excludes remains contested.

Dr. Emily Jones, Senior Lecturer in Law at the University of Essex, published a new article in the Journal of Human Rights and the Environment which brings posthuman theory and RoN together, reflecting on how posthuman legal theory can contribute to the framing of RoN, with a focus on challenging the anthropocentrism of IEL.

The article argues, first, that the next step for posthuman legal theory will be its application to existing law.

Noting convergences between posthuman legal theory and the rights of nature (RoN), the article contends that those seeking to apply posthuman legal theory might find some interesting alliances by turning to RoN.

Second, the article argues that using posthuman theory to frame RoN could help to ensure that RoN live up to their transformative potential.

Article full citation: Jones, E. (2021). Posthuman international law and the rights of nature, Journal of Human Rights and the Environment, 12(0), 76-101. DOI: https://doi.org/10.4337/jhre.2021.00.04. A copy can be accessed through the publisher’s website here or requested through the University’s research repository here.