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.
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).
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 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
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.
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.
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.
By Dr. Erin Pobjie (@EPobjie), Lecturer in Law, University of Essex
Russia’s unannounced direct-ascent anti-satellite (DA-ASAT) missile test earlier this month raises important legal and policy questions about the prohibition on the use of force in outer space. The highly destructive weapons test – which forced astronauts aboard the International Space Station to seek shelter and created a long-lasting field of space debris – underscores the need to urgently develop international standards for responsible behavior in space.
The timing of the test is provocative, as the United Nations (UN) General Assembly’s First Committee (Disarmament and International Security) passed several draft resolutions at the start of this month aimed at preventing an arms race in outer space, which are expected to be adopted at the next General Assembly session in early December. China and Russia were among only a handful of states to vote against the key draft resolution on “Reducing space threats through norms, rules and principles of responsible behaviours,” reflecting a deep rift on this issue between the major space powers.
Passing these reforms is crucial given the long-term consequences of resorting to force in space. Russia’s missile strike against its own defunct satellite, Tselina-D, created a field of space debris of nearly 1,500 trackable pieces (i.e., pieces greater than about 10 cm in diameter). Given high orbital velocities, even tiny pieces of space debris place astronauts and satellites at risk and, in the worst case, could lead to Kessler Syndrome – a cascading cloud of orbital debris – preventing access to outer space from Earth for generations.
This is not the first kinetic DA-ASAT test creating a long-lasting debris field: notoriously, China conducted such a test in 2007, blowing up its own weather satellite and creating 2,300 pieces of debris. The United States also conducted a kinetic DA-ASAT test in 2008, creating 400 pieces of debris, as did India in 2019, creating similar levels of debris. (The United States at the time justified the low-altitude strike against its malfunctioning spy satellite as necessary to prevent its re-entry into the atmosphere and the release of toxic fuel.)
The Russian defense minister, Sergei Shoigu, hailed its test as “promising” and denied that the fragments posed any threat to space activity. The United States retorted with a statement by Secretary of State Anthony Blinken: “The long-lived debris created by this dangerous and irresponsible test will now threaten satellites and other space objects that are vital to all nations’ security, economic, and scientific interests for decades to come.” The United Kingdom and France also condemned the weapons test, with the French Ministers for Europe and Foreign Affairs and for the Armed Forces labelling it “a destabilizing, irresponsible action which could cause very long-term consequences for the space environment and all space players.”
The Russian DA-ASAT test takes place against the background of ongoing and urgent efforts by the international community to prevent an arms race in outer space, known as “PAROS.” PAROS seeks to preserve outer space as a peaceful domain for the benefit of all, by preventing the weaponization of outer space, reducing threats to space systems, and avoiding escalated tensions and conflict caused by misunderstanding and miscommunication. Efforts towards PAROS began in earnest shortly after the conclusion of the last space treaty, the Moon Agreement, in 1979, with negotiations taking place in various multilateral fora, including the Conference on Disarmament, the UN Committee on the Peaceful Uses of Outer Space, and the UN General Assembly First Committee.
However, efforts to negotiate PAROS have been long stymied due to a deep divide in the international community on the best approach to ensuring space neutrality. The approach favored by Russia and China is a binding treaty, namely, the “Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects” (PPWT) proposed in 2008 and revised in 2014. An alternative approach would be to adopt soft law guidelines aimed at transparency and confidence building measures (TCBMs), such as the European Union’s Draft International Code of Conduct for Outer Space Activities. Key substantive issues at stake include effective verifiability, legal gaps in definitions and framing of rules which could be exploited by adversaries (for example, Russia’s DA-ASAT test would not violate the Russia-China draft treaty, which does not ban ground-based weapons), and the desire for flexibility.
A breakthrough finally was reached on Nov. 1 this year, when the UN General Assembly First Committee adopted a UK-proposed draft resolution to establish an Open-Ended Working Group (OEWG) to identify threatening and irresponsible space behaviors. This resolution is likely to be approved by the UN General Assembly next month, given the voting patterns in the First Committee, in which 163 States voted in favor, with nine abstaining and only eight against (including China and Russia). The OEWG will meet in 2022 and 2023 to:
(a) Take stock of the existing international legal and other normative frameworks concerning threats arising from State behaviors with respect to outer space;
(b) Consider current and future threats by States to space systems, and actions, activities and omissions that could be considered irresponsible; [and]
(c) Make recommendations on possible norms, rules and principles of responsible behaviours relating to threats by States to space systems, including, as appropriate, how they would contribute to the negotiation of legally binding instruments, including on the prevention of an arms race in outer space.
In parallel with these multilateral initiatives, private efforts to codify the applicability of international law to military uses of outer space such as the Manual on the International Law Applicable to Military Uses of Outer Space (MILAMOS) and the Woomera Manual are also underway. In the face of relatively slow progress in confronting these urgent threats through UN channels, the Outer Space Institute (a global network of space experts) recently launched an International Open Letter on Kinetic Anti-Satellite Testing that has already gathered hundreds of prominent signatories, calling for a new international treaty banning kinetic DA-ASAT weapons testing of the type we have just witnessed by Russia. (The letter is open for further signatures here.)
Needless to say, there is already an international legal framework that applies to military activities in outer space, including the Outer Space Treaty, the UN Charter (especially its article 2(4) prohibiting the use of force between States), international humanitarian law, and international human rights law. But there are major areas of ambiguity that will need to be addressed, including the controversial questions of what counts as a “space weapon” and “use of force” in outer space. The unique environment in outer space gives rise to special challenges of identifying prohibited “uses of force,” including issues of attribution, dual-use objects of a military and civilian nature, difficulties with identifying hostile intent (for instance, when a satellite conducts rendezvous and proximity operations), and whether attacks with temporary and reversible effects (such as dazzling satellites through directed energy attacks, i.e., temporarily blinding an imaging satellite by using a laser to interfere with its sensor) would meet the threshold of prohibited force under jus ad bellum. Of particular relevance to Russia’s weapons test, a DA-ASAT strike against a state’s own satellite could in certain circumstances fall within the scope of prohibited force under article 2(4) of the UN Charter, since the space debris generated could cause foreseeable damage to another State’s space object. Yet none of the international efforts to define “use of force” in outer space have achieved consensus so far. And importantly, under current international law, kinetic DA-ASAT tests are not explicitly banned.
The use of force in space would also have significant non-military implications. Critical civilian infrastructure increasingly relies on space systems, including infrastructure essential for food production, health care, disaster relief, transport, communication, energy and trade, and the global navigation satellite systems such as GPS, which themselves underpin global communication networks, banking and financial markets, and energy grids. Disabling, damaging, or destroying such satellites, including through missile attacks, could have “wide-reaching consequences for civilians on earth.”
Russia’s missile test and the long-lasting space debris field it created should give policymakers increased impetus to clarify the international legal rules and norms applicable to military uses of outer space in order to prevent conflict and preserve this domain for peaceful purposes.
This piece was first published on Just Security and is reproduced on the ELR Blog with permission and thanks. The original post can be accessed here.
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’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.
The meeting, which will be held on 11-12 November 2021, encompasses several events, including the Research Forum, which features cutting-edge international law scholarship by more than 70 authors and is open to the public. Registration details are available here.
Marija’s presentation is titled ‘Redesigning Slavery Through Law: A Play in Four Acts’ and will be hosted by the Reimagining International Law panel, chaired by Professor Noah B. Novogrodsky of the University of Wyoming College of Law.
Marija’s paper investigates, in particular, the relationship between the law and slavery including ‘modern slavery’. It argues that just as states in the Global North have maintained ‘traditional’ slavery using law as a primary tool, so have they substituted the old with ‘modern slavery’ to accommodate and fulfil the needs of the present-day global economic order and political reality. This contradicts their projected image of the champions of the abolitionist movement and the recent global action against ‘modern slavery’.
This work is situated within Marija’s broader research on modern slavery and human trafficking, which explores how various aspects of law both contribute to and work to suppress these practices. It builds on her doctoral work, which is further developed in the book on State Responsibility for ‘Modern Slavery’ in Human Rights Law: A Right Not to be Trafficked forthcoming with the Oxford University Press in 2022.
Essex Law Research Blog 