Offender Supervision in Europe - Perspectives from the COST Conference

I've been in Liverpool all week at the first annual conference of COST Action IS1106 on Offender Supervision in Europe. Over the course of a long three days, we've discussed various aspects of offender supervision regimes - pre-sentence (here in England, bail), as a sentence (community orders, suspended sentence orders, and their youth justice equivalents), and post-sentence (release on license from prisons). The conference has detailed exciting developments in the Action, which aims to collect and meta-analyse data from across the EU/Council of Europe, in order to provide a comprehensive picture of the phenomenon of non-custodial supervision across European criminal justice.

I'll spare you my notes on the subject. If you find any of that interesting, the speeches will soon go up on the Action's website, so you can listen to the presentations and read the slides as if you'd been there!

This is one of the most exciting developments in my field at the moment, and there's plenty more to come. Watch this space!

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P.S. - Ahead of the COST conference I also attended the annual meeting of the European Society of Criminology's Working Group on Community Sanctions and Measures, many of whose members are involved in the COST Action. Their presentations will also be going up when the Working Group's own blog gets up and running - and when it does, I'll provide a link to that as well.

Prisons, Ivory Towers, and Social Research

Ed Wright, one of our colleagues in the PG research community here in Nottingham, has written a short but rather interesting piece on the important contextual role of researching beyond the library. You can read it here.

New Media - To Cite or Not to Cite?

A couple of weeks ago, I was presenting a paper based on my submission for the PhD Seminar Series (which I mention here) to the European Society of Criminology in Bilbao. But I did something naughty, in referencing this book:

The Influencing Machine is a potentially very useful example of good polemic journalism: it's a study of (US) journalism's developments up to the current day, the potential effect it has upon (American) politics and public opinion, and the possible future that new developments in media technology could have on society.

It's also a comic book. Not that I mentioned that at the ESC. But should I have?

This is a debate that's been raging around a lot of 'new media' (particularly things like this very blog). Academic traditionalists dismiss sources like Gladstone as superficial, aimed at the mass market, and untested by peer review. Certainly there's an element of truth to all of these claims, and comic narrative lends itself to providing ease of understanding at the expense of sacrificing the spatial economy of simple text (see Will Eisner, Comics and Sequential Art (1985). If Gladstone had published her written text as simple prose, then it would probably have been no longer than a journal article, because you can say much less with six-to-twelve panels than with a page of text.

But does that mean we can write off what Gladstone has to say about the state of the media? After all, she herself is a radio journalist, and her book is at least partially an insider's view on the state of news media in her country. If we wrote off all comics as hokey popcorn entertainment for the young (and primarily young male) market, then we'd miss out on a lot of really insightful, thought-provoking non-fiction, such as the deeply personal and methodically observed opinion journalism of Darryl Cunningham (Psychiatric Tales 2011; Science Tales 2012); biting cultural observations of the sort popularised by Marjane Satrapi's Persepolis (complete edition compiled 2007); and the art history of Scott McCloud, whose seminal opus Understanding Comics (1994) advocates a reappraisal of the whole medium.

All this is well and good in the abstract, but what does it mean for researchers? It seems to me that the answer is to use new media when - and only when - they have some definite and important relevance to the point you're trying to make. Some thoughts to consider include:

• Is there any respected academic alternative? - More time ago than I'd like to admit I was writing a dissertation about tobacco and cannabis regulation in England and Wales. There are very few academic sources that give an insight into the political history of cannabis, and so I was forced to fall back on a polemical piece of journalism, Martin Booth's strongly pro-legalisation Cannabis: A History (2003). So long as one recognises the faults with this kind of source, then there's nothing wrong with it.
• Does it say anything that academia doesn't? - This is a matter of perspective: anyone writing a Ph. D. will tell you how hard it is to find something that hasn't already been said somewhere in academia. But potential new ways of looking at phenomena are turning up time and again, and new media offer good angles. For instance, one thing that the inherent simplicity of the comic book lends itself to in The Influencing Machine is that it lays out various types of potential journalistic bias very effectively. Adopting that taxonomy for oneself can be a good way of incorporating the material in a way that doesn't undercut the perceived 'academicalness' of your research.
• Can you treat it as an empirical source? - Running a discourse analysis or case study allows one to quote and critically appraise a source at the same time. But this only works if that's what your research is actually meant to be doing. Sticking in a qualitative case study for the heck of it is unlikely to improve your research any.

Ultimately, I think snobbishness over new media is on the way out, and rightly so. Whilst we can't ignore the rigors of the academic process - peer review means that you can be sure of the content of an article in a way you can't of one in a newspaper - that doesn't mean that nothing outside the ivory tower has any use. And the only way that hesitancy can ever be broken down is if we stand up and jeopardise our careers by quoting a comic book to the finest minds in Europe.

But then, what do I know? This is only a blog post, after all...

New UK judge elected

The Parliamentary Assembly at the Council of Europe has elected a new judge for the UK. Paul Mahoney, a former registrar at the Court, will replace the UK's current long-standing and distinguished judge Sir Nicholas Bratza.

Bratza has been a UK representative in Strasbourg for an extra-ordinarily long time. He served as a member of the former European Commission on Human Rights from 1993 to its abolition in 1998 and then became the UK's judge at the permanent court. He was recently elected President of the Court after Jean Paul Costa's term of office came to an end in November last year. Mahoney will take office when Bratza's  second term of office expires at the end of October 2012. Bratza's extensive experience will undoubtedly be missed at the Court.  Although Mahoney himself also has extensive experience at the ECHR and the Council of Europe. In sharp contrast with the length of Bratza's tenure at the Court, Mahoney will only serve 5 years of his 9 year term of office as he is currently 65 years old and the Convention requires judges to retire at the age of 70. 


There are some interesting political dimensions to this appointment. It had been thought that eminent human rights barrister Ben Emmerson QC, founder of Matrix Chambers, was the front-runner for the position, with Mahoney's age supposedly counting against him. However, Emmerson's prospective appointment was apparently the cause of some alarm among the Tories who perceived him to be too liberal and feared that he would not respect the will of parliament, even though the Tories shortlisted him as a candidate for the position. The election of the peerless and fearless human rights advocate Emmerson would have raised a few eyebrows at Westminster. Emmerson represented Abu Qatada in his recent case against deportation and doubtlessly had a role to play in the ensuing "omni-shambles" related to that case, which was the cause of much embarrassment for the UK government and in particular Teresa May. While was almost certainly Paul Mahoney's last opportunity to sit as a judge in Strasbourg, the 48 year old Emmerson may at least have another bite of the cherry in 5 years.

Acts II and III of the PhD Seminar Series

On Friday 9th March 2012, Kelly Stathopoulou (Ph.D Candidate, School of Law) delivered a seminar on an international lawyer’s perspective on Africa’s Peace, mainly the trends from the first decade of the African Union (2002-2012).
An emphasis was especially placed on the role of the researcher as an “interested spectator” (Ian Brownlie, 1985) towards the research object; as well as on the concept of peace in the field of international law.

David Hayes (Ph.D Candidate, School of Law) took the stage on Monday 19^th 2012 and talked the audience through news media approaches to community punishment and their influence on the formation of public opinion on this topic.
The dominant trends presented by David are based on empirical work which was conducted by him and covered a sample of 2,000 newspaper articles published between Jan. 2003 and Jul. 2011.

Kelly's presentation and David's slides are available on the School of Law's website at:
http://www.nottingham.ac.uk/law/news/acts-ii.aspx

Community Punishment in the News

Recently I gave a paper entitled "Community Punishment in the News" as part of the PhD Seminar Series. It detailed research I had undertaken last summer into newspaper representations about community punishment, and what their implications were for how public opinion forms around this group of sentences.

I thought it would also be a good idea to post some of the information from the presentation here on the blog (especially since a lot of people have told me that they couldn't make it). So here goes!

According to an orthodox account, community punishment (those sentences set for adults by ss. 177-205 of the Criminal Justice Act 2003) have had a long history of being overlooked by news media, which tend instead to focus upon imprisonment when they deign to highlight criminal issues. When community sanctions do attract the limelight, they usually meet with hostility from virtually all sides, together with the ubiquitous complaint that they are 'soft on crime' in comparison with their custodial alternatives. I set out last summer to unpick some of these arguments and find out how frequently and with what intent newspapers refer to these dispositions.

What I discovered was the community punishment was a much discussed topic, although I suspect that the number of articles referring to the phenomenon is significantly less than those discussing other sentences. In the period between January 2003 and July 2011, some 23,125 articles mentioned community punishment in some way, according to the Nexis UK database. That figure isn't the most reliable in the world, as the database included some articles multiple times, but it's still several orders of magnitude above what I expected to find on the basis of the orthodox account that I outlined above. In particular, local newspapers voraciously include articles on community punishment, perhaps attracted by the opportunity it creates for the community to get involved in criminal justice processes.

Of those 23,000-odd articles I used stratified random sampling to pick out a sample of 2,000, submitting them to a thematic analysis. In other words, I picked out themes in the arguments made by the newspapers under study that were common to at least two articles and then counted their incidence, as well as analysing their discussion of community punishment in relation to the rest of the sample.

Using this methodology I identified 12 themes in news media discourse:

• that community punishment is ineffective or inadequate (either in certain cases or as a punishment entirely);
  
• that it was effective;
  
• that it was a normal and unremarkable state of affairs;
  
• that reforms involving community punishment were either positive or negative;
• where community punishment was discussed in extremely emotive terms;
• that the crime involved extraordinarily violent or sexual elements;
• that anti-social behaviour surrounded the crime that led to community punishment;
• where the offender was young (under 18);
• where community punishment involved an element of restorative, reparative, or victim-centred justice; and
• where the offender was described using what I call the "Spared Jail" rhetoric.

It's worth noting that initially, this sample seemed extremely negative about the use of community punishment. Negative themes (ineffectiveness, inadequacy, negative approaches to reform) outweighed positive ones (effectiveness, positive approaches to reform) by a ratio of about 3:2. However, by far the most dominant theme was the normalisation of community punishment: that it was fine in most circumstances in which it was used.

Moreover, negative and positive attitudes were highly situated in individual newspapers, with some (notably tabloids) publishing far more frequently than others (notably broadsheets). The question of how these articles affected peoples' opinions of community punishment and the criminal justice system was therefore far much more about which paper one reads, rather than how many articles one was exposed to.

The sample confirmed that news media coverage of criminal justice news tends to act out two major roles: namely, the provision of moral guidance and exciting human drama. This is illustrated by the use of the "Spared Jail" rhetoric, which appeared in about 10% of articles (191/2000).

Since there is no easy buzzword to describe community punishment, unlike imprisonment (which can be shortened to "jail") or fines (which have a short enough name to fit into headlines as they are), newspapers have had to come up with a short, snappy way of describing it for when newsprint is at a premium (for example, in headlines or short articles). In these cases, one tends to see community punishment referred to as being 'spared jail', or some derivative thereof.

What's interesting is that the use of this term is morally loaded. Where the newspaper believes the offender is 'deserving' of moral support, they describe the offender as having been 'spared jail' or 'granted mercy' by the judge. On the other hand, where the offender deserves moral condemnation she is usually described as 'avoiding', 'cheating', or even 'escaping' jail. In other words the description of the offender changes to fit the newspaper's moral approach to the story: if the offender is 'good' then she is meek and passive in the trial process, throwing herself on the mercy of the court, and therefore of society. By contrast, if she is 'bad', then she is a shrewd manipulator of the criminal justice process who has hoodwinked the judge and gotten off with an overly lenient sentence. Given what we know about the role of defendants in criminal trials in England and Wales, both of these positions are significant departures from empirical reality.

All this evidence suggests that what might appear as intransigent newspaper opposition to community punishment is far more complex the closer one gets to news discourse. It might be better to say that news media are (as a rule) more reactionary than outrightly hostile towards penal reform, accepting that community punishment is normal and acceptable for certain crimes but vociferously opposed to its use elsewhere. This being the case, it may be that today's travesty of justice will be tomorrow's business as usual to the same editor. There is therefore reason to be somewhat optimistic about the public legitimacy of community punishment and sentnecing reforms.

However, at the same time, it is clear that newspapers (and news media in general) have a profound effect upon public discourse, and therefore upon public opinion. They have an almost unmatched capacity to shape the way in which certain concepts (such as community punishment) are formed in the public imagination, because many people rely more or less exclusively on news media for information about the criminal justice system. This may mean that latent hostility towards community sentencing becomes extremely entrenched, which may dissuade politicians eager to be re-elected from pursuing reforms that expand their use. In other words, whilst there are reasons to be optimistic about news media representations of community punishment, there are also reasons for pessimism.

The final conclusion is that any such problem with the acceptability of community punishment to the public is not an immutable fact of public life. News media dominate public discourse, but they are not the only channel by which that discourse may be had. Public institutions, government bodies, academic publications and entertainment media all provide opportunities for other voices to be heard, and it is to them that we should turn if we find fault in the description of community punishment in the news.

Hopefully there will soon be a news item on the University website that has a link to my PowerPoint presentation, which contains a full Bibliography for further reading.

'Empirisicm made easy' (PhD seminar series -Act I)

As mentioned in the previous post, the opening act of the PhD Seminar series was delivered by Prof. Sandra Frisby. Prof. Sandra Frisby delivered a fascinating presentation based on her experience doing empirical work in the context of legal research.
She talked the audience through the opportunity/necessity to embark upon empirical research, finding data, stumbling upon a 'methodology', what kind of data analysis can be produced (no rocket science involved!), quantitative and qualitative options, tips on interviews, and much more.

It was clear from Sandra's presentation that legal researchers can add to 'knowledge' by including empirical work in their projects, and that they should not fear taking on that enterprise. In fact, the community is (almost!) invariably willing to help, and it is... tremendous fun!

Sandra's presentation slides are available for download at the School website

And stay tuned for Act II of the series!

PhD Seminar Series Kicks off!

We’re happy to announce that the PhD seminar series, taking place during the second semester of 2011-2012, is already up and running ; the first session took place this week, with prof. Sandra Frisby delivering a lecture titled ‘Empiricism made easy’, followed by a stirring discussion amongst members of the staff, LL.M and research students; a more detailed post on this session will follow soon.

In the meantime two more sessions have been scheduled for March

· Seminar 2: Africa’s Peace, by Kelly Stathopoulou (PhD Candidate, School of Law)
This session will take place on Friday, 9th March 2012, at 1-1.50pm in Room B55.

About the session:
What is the African understanding of peace? How have African states and institutions responded to recent conflicts and crises in Africa? And how does an international lawyer engage with the ‘thorny’ subject of Africa? The lecture will present trends from the first decade of the African Union (2002-2012).


· Seminar 3: Community Punishment in the News, by David Hayes (PhD Student, School of Law)
This session will take place on Monday, 19th March 2012, at 1-1.50pm in Room B55.

About the session:
Where does ‘public opinion’ come from? Who decides what constitutes it and why is it so powerful in government decision-making? This seminar will address these questions in the context of what news media have to say about community punishment in England and Wales. Drawing upon research undertaken in the last academic year it highlights the most common types of approach to community punishment in the press and addresses why media sources are so important to a study of public opinions.

Ahead of the session it would be useful for you to read Maruna and King, ‘Public Opinion and Community Penalties’, in Bottoms, Rex and Robinson, Alternatives to Prison: Options for an Insecure Society (2004, Cullompton: Willan)

Tea/Coffee and Biscuits will be provided

All welcome!

URN - The Big Picture

Hello blog followers!

Kelly has asked me to put up links to a radio show and podcast that I'm involved with for the University of Nottingham's student radio station, which is called The Big Picture. If you're interested in hearing me and other students ranting about topical issues then by all means head to the podcast archive, and listen in every Wednesday during university term times from 6pm to listen in and contribute over the internet!

D. H.

On Ned Kelly and terrorism

In the last of a series of Australian-themed posts, I'd like to comment on this display I saw at the Melbourne Gaol which sparked my interest:

The text underneath reads as follows: "If the Kelly uprising had occurred in the 21st century then Ned would have escaped execution for murder as Victoria outlawed this punishment in 1975. But would it have been as simple as that? With his barely concealed political agenda and his push for a breakaway republic in the north-east, Ned could have been tried under Australia's ant-terrorism laws. His attacks upon the police, his threats towards people in high office and his possession of a bomb at Glenrowan would have given the prosecution much useful ammunition. How much imagination does it take to see Ned in the dock, shackled and dressed in an orange boiler-suit?"

Anyone familiar with the tale will be aware that Ned found himself to be largely a victim of circumstances, fighting on behalf of an oppressed Irish Catholic underclass, whilst his boldness and character has made him something of an Australian folk hero over the years.  But of course the same could be said of many terrorists, as it's really a matter of perspective. That said, could we really brand Ned a terrorist?  The Australian Criminal Code defines a terrorist act as an action or threat "made with the intention of advancing a political, religious or ideological cause" done with the intention of "coercing, or influencing by intimidation, the government" or "the public".  The act needs to fulfill one of a list of requirements of violence or sabotage, such as physical harm to a person or disrupting transport systems. The act seems remarkably broad and would capture, for instance, insurgency where only military personnel are targeted (it is somewhat broader than the draft of the international "Comprehensive Convention on Terrorism" which requires that the act be designed to intimidate a population). 

In his "Jerilderie" letter to the police, Ned Kelly demands that the rich donate money to widows, orphans and the poor if they want to stay alive. A political demand? Perhaps.  Probably more weighty are the Kelly gang's plans to create an independent "republic of north east Victoria" and related attempts to ambush a train-load of police at Glenrowan (the failed ambush leading to Ned Kelly's apprehension).  In an odd way, it seems that Ned probably could have been caught out by the present legislation despite never harming or intending to harm any civilians (unless we include the "hostage-taking" at Glenrowan, where the gang organised games and events to keep the hostages entertained!).

If anything this tale provides an interesting insight into the ambiguity over "terrorism" and the pervasive problems we have with defining it today.

Recomended song: Bernard Fanning - Shelter for my Soul

RIP Judge Antonio Cassese

Few have done so much to influence the development of international criminal law, in his work at the ICTY, the UN and the Lebanon Tribunal, as well in his role as a distinguished scholar.

The Lebanon Tribunal has a press release on the topic here.

A Buried Question

That's the title of a poem I found on display at the Mebourne Gaol. It's about the trial of a serial killer Frederick Deeming and a rebuke to claims that he was insane.  It offers an interesting perspective on the law; see what you make of it.

Was Deeming mad, and could his Brain
Be reckoned rotten?
What odds if he were mad or sane?
Unopened let his skull remain
Whilst all the doctors rage in vain
Till he's forgotten.

He'll perish quickly in the lime
No human hand'll
Discover why, committing crime
He roamed about from clime to clime.
They don't want Science wasting time
To raise a scandal.

The Law is built on musty creeds
Which custom hallows.
Its duty is to choke the seeds
Which wisdom sows: it little heeds
The constant Kindly Light that leads
Beyond the gallows.

Shall Shiels, the lawyer, let our trust
In wigs be shaken?
Shall Justice prove itself unjust
By seeking in its victim's dust
The truth to which all bigots must
At last awaken?

Plant Deeming in the prison-ground
Beside the others.
Each judge in blood-red garment gourned
Knows well what principles are "sound,"
And law is law the wide world round,
Beloved brothers.

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I don't think this is intended to be ironic in any way; instead it is an absolute, blind corroboration of the righteousness of judges (bear in mind that it was in response to some of the most shocking crimes ever to occur in Australia). I tend to agree with the general vibe of the poem, but would like to think we have progressed somewhat in our view on legal principle since then. In any case it is fascinating. What do you think of it/how would you interpret it?

Incidentally the Gaol is also the place where Ned Kelly was imprisoned and hanged, but more on that in a separate post later!

With Gadaffi dead, where now for international criminal justice?

Col. Gadaffi's death, after apparently having been captured alive, sets the course for a disturbing swing away from the administration of courtroom justice towards extra-judicial execution, doubtless influenced by the US decision to execute, rather than attempt to capture and try, Osama bin-Laden. 

I couldn't possibly write a better post on this topic than Mark Kersten has over at Justice in Conflict; here's the link.

The Eichmann Trial at Fifty

Last week I was invited to present a paper at Melbourne Law School on the topic of the trial of Adolf Eichmann in Jerusalem fifty years ago and the legacy it has left behind.  The case seems almost unique in the lasting effect it has had; it is certainly probably the most famous domestic trial in history, but why?

For those who need a little background, Adolf Eichmann was a high ranking Nazi and facilitator of the holocaust; he organised the deportations of Jews from all over Europe to the death camps where 6 million are thought to have died.  Following the war Adolf Eichmann escaped to Argentina where he lived incognito for some years until being tracked down by the Mossad and smuggled to Israel in 1960 to stand trial. The 4 month long trial commenced the next year, at the end of which the defendant was found guilty.  An appeal was rejected and Adolf Eichmann was hanged in 1962.

Each paper at the conference dealt with a different aspect of this.  The keynote speech came from legal historian and Boston College professor Devin Pendas, who examined the historical legacy of the Eichmann trial.  From a legal perspective, he argued, the trial was not that important; it set no real legal precedents. Its real legacy lies, instead, in universalising the holocaust, in shifting the emphasis from the genocide being a crime against the Jews to being a crime against humanity.  Were it not for the trial, he suggested, we would probably not have memorial museums the world over today, and would not use the word "holocaust" to refer generally to terrible events.  This is largely down to the inventiveness of the judges in the case in defining the crime as a universal one, and indeed invoking universal jurisdiction as one method of approaching it.

The next speaker, DePaul Law Professor Stephan Landsman, studied the connection of the Eichmann case with the "witness-driven" atrocity trial.  In the case, the prosecution called an excess of witnesses many of whom testified about things completely unrelated to the case in hand. The prosecution was keen to tell the complete story of the holocaust rather than just to establish the guilt of Adolf Eichmann, something for which chief prosecutor Gideon Hauser was frequently admonished by the judges.  In so doing the Eichmann case set the standard for ridiculously long international trials such as that of Slobodan Milosevic, and influenced, for instance, the US decision to execute rather than attempt to capture Osama bin-Laden.

I spoke next, my talk dealing with the inventive use of universal jurisdiction by the judges. Establishing jurisdiction would have been straightforward enough applying simply Israeli law, as the judges themselves recognised. Yet they were presented with a number of challenges which they felt inclined to explain their way around - such as the ex post facto nature of the legislation under which Adolf Eichmann was charged, the extraterritorial nature of the jurisdiction asserted, and the fact that Israel did not exist at the time of the offences charged. These issues were combined with complaints from other countries and distinguished individuals such as Telford Taylor and Hannah Arendt, who argued for the establishment of an international tribunal along the lines of Nuremberg.  This combination of circumstances influenced the judges' decision to invoke universal jurisdiction and apply international law, claiming that they were agents of the international community and doing what any other State could do by putting Adolf Eichmann on trial. The judgement also generated persuasive argumentation regarding the application of universal jurisdiction to genocide, in apparent contravention of the Genocide Convention.  This represented something of a leap for universal jurisdiction; but I warned against interpreting it too generously given the muddling of jurisdiction in the case (the court equally appeared to invoke protective and passive personality types of jurisdiction as well) and the unique circumstance of the Nazis, an organisation that received universal condemnation with the result that their trials, under universal jurisdiction or otherwise, receive little criticism - compare this with the controversial universal jurisdiction trials that have been attempted by Belgium or Spain in more recent years. As Louis Henkin, I think, put it, the Eichmann trial happened at the edge of international criminal law.  It was, in many ways, too unique to set a sound precedent.  Kevin Heller responded to my presentation by emphasising the importance of the Control Council Law Number 10 trials (of Nazis tried in occupied Germany in Allied-convened courts) in developing universal jurisdiction.

The final presentation came from Cardozo Law Professor Kyron Huigens, who spoke about Eichmann's "defence of conscience", examining his defence of superior orders and asking whether he had the proper mental capacity to be answerable to the crimes charged.  The presentation unravelled some of what Hannah Arendt meant by referring to the "banality of evil" - the idea that Adolf Eichmann was not an evil person, but instead became caught up in the machinery of evil, a thoughtless "cog" in a machine, operating in an inverse moral universe where killing had become the norm.

All in all, a great event, and in a most beautiful corner of the world.

Nottingham: What's ON

As the new academic season is getting started, and the School is busier than ever- including our PhD room- the school has announced a series of events starting from next week.
The Human Rights Law Centre Film Series kicks off on Thursday, October 20, at 6.15 (LASS B63) with a film that needs no introduction-The Sea Inside. Looking forward to discussions after the screening. For more information on the student film series see here.

Also, the School of Law Annual Seminar Series starts on Wednesday, October 19, at 1.00 (LASS B55) with Dr Estelle Derclaye presenting the main findings of her book 'Intellectual Property Overlaps: a European Perspective'.

In addition, for another year, professors Dino Kritsiotis and Mary Footer have put up a series of promising lectures, as part of the ILA British Branch Regional Seminar Series; the full programme is available here.

And many more to come, including the Annual Student Conference hosted by the Human Rights Law Centre; more info to follow.

So, stay tuned!

Lawyers, Poetry & Sarcasm

'I think that whatever sense of humor I had, would have been suffocated to extinction in the numbing, obscure, and far too serious world that has my law school education.'
Charles M Sevilla, Intro, Disorder in the Court

Nothing new; one of the top 3 stereotypes about lawyers: no sense of humour - (the remaining two, deserve an entire new post, though Woody Allen might have said everyting about one in Love & Death); but it is hard to hear from an insider and not your friends, especially when it comes as an introduction to a witty compilation, such as the 'Disorder in the Court'.

In this blog, one of our recurring themes seems to be the issue of what kind of lawyers we are; on more serious or more sarcastic notes, agonies about the role of a lawyer (with a particular emphasis on international lawyers, blame it on our strong contingent at the university) seem to come and go. (see here and here to name but a few). Self-sarcasm is highly recommended, not least for taking stock of our shortcomings and moving forward.

It is thus with great pleasure that in the recent festschrift, dedicated to Judge Bruno Simma, Hugh Thirlway poses some thought-provoking questions and observations, by revealing another of his talents, the poet's side: he opens the festschrift with a set of verses written in response and during (?...) three leading ICJ cases with Bruno Simma on the bench.

I quote one of these, not only for summarising a favourite (case), but also for its underpinning sarcasm on counsel representation; and without further thoughts, as good poems need not any explanations or commentary, I will let the verses speak for themselves.

Diminution and Accretion

[…]One legal counsel told Tehran what to do; More advice was needed, so then there were two/ Two legal counsel-‘What if they don’t agree? Another view is needed’-so then there were three/ Three legal counsel: ‘For international law We’d better call in Crawford!’-so then there were four. Four legal counsel: ’The Court is also franc-ophone!’-lors, à présent nous sommes cinq!’/Five legal counsel :’Just to complete the mix, We need a NY lawyer’-so then there were six/Six legal counsel (a sort of lawyers’ heaven, in fact a Sellers’ market); so then there were seven.

Recommended song: The devil and midnight (feat. Yolanda Quartey) by Nitin Sawhney

Anders Behring Breivik and Crimes Against Humanity

I have been wanting to write about today's news that Norwegian prosecutors are pondering a crimes against humanity charge against spree killer Anders Behring Breivik, only to find that William Schabas has already done a fine job of it.  Look out for me in the comments!

On another note, I found the press conference with Breivik's lawyer earlier somewhat fascinating, partly because of the remarkable nature of the situation, partly because of the ridiculous questioning ("Is he a cold person?" "Does he know you are a Labour Party member?" "Is he able to sleep?"), but primarily because of the unenviable situation that he finds himself in.  What would your response be on being asked to represent a self-confessed mass murderer who is totally open about what he has done, and unrepentant for his crimes? Geir Lippestad accepted the assignment because he believes in democracy and in his legal system, some of the very things which his clients finds so objectionable. It's hard not to feel a tinge of admiration towards somebody who believes in his system enough to be able to represent a monster and work to obtain for him the fair trial that he doubtless should have.

Full House

Hidden under last week's phone hacking news-storm was the news that Goran Hadzic was apprehended in Serbia and later transferred to The Hague to stand trial at the ICTY.  Hadzic was the sole remaining fugitive from the ICTY's list of arrest warrants.  A Croatian Serb leader, Hadzic is charged with 14 counts of war crimes and crimes against humanity, primarily linked with the 1991 Vukovar massacre in which around 250 people were killed.

Hadzic's arrest, along with that of Ratko Mladic, closes a vital chapter for the ICTY, critics of which had until recently criticised it for failing to bring the key actors of the Yugoslav wars to justice (arise Messrs Milosevic, Karadzic, Mladic). Moreover it bolsters the reputation of the tribunal, and of international criminal law in general.

Ding dong Bankovic is dead, well sort of…

“I believe that those who export war ought to see to the parallel export of guarantees against the atrocities of war.” – Giovanni Bonello

The Court issued its much anticipated Al-Skeini and Ors v UK judgment today. The Court found the UK in violation of its procedural obligation to investigate the deaths of a number of Iraqi civilians killed while the UK was an occupying power in the country (see my previous post). Thankfully it was not the jurisprudential bag of coal I had worried about receiving but was instead a vaguely satisfying answer to my letter to Santa. Akin to asking for an xbox 360 but receiving a wii, not exactly what you asked for but close enough. 

I'm still mulling over the finer points of the judgment but there are a few noteworthy aspects of it that i thought I'd share here.

Firstly, the court had 3 deliberation sessions over this judgment which is quite unusual even for contentious judgments. Normally, the court would meet immediately after a Grand Chamber hearing to deliberate. The majority’s decision would usually be reached after the first session with a follow up session a few months later to thrash out the finer details. This Grand Chamber judgment had 3 separate deliberation sessions, 1 on the day of the hearing, another a few days later and then a further session a year later. This indicates that there was extensive debate between the judges of the Grand Chamber, most likely about the appropriate scope of the judgment. It’s likely that there were quite a few compromises on this issue given that the final judgment was unanimous. A unanimous judgment was arguably necessary to give full force to the ECtHR’s interpretation of extra-territorial jurisdiction. The difference in weight of judgments (admissibility decision, chamber judgment and grand chamber judgment) has meant that apparent changes in the court’s approach to extra-territorial effect could be discounted by commentators as “just an admissibility decision” or chamber judgment. This is one of the reasons why the court’s chamber judgment in Issa v Turkey which contradicted Bankovic and Ors v Belgium and Ors in many ways was discounted in some quarters, as Bankovic was a Grand Chamber judgment while Issa was a simple chamber judgment.

Secondly, the Court engaged in a small amount of sleight of hand in this decision and neatly dodged the issue of attribution raised by the fact that the UK was part of a multi-national UN mandated force when some of the killings occurred. The Court had previously absolved states from responsibility under the Convention where they have been acting in such missions, the court had held that the conduct was attributable to the UN rather than the individual State (see inter alia Behrami and Saramati v France,  Bosphorus v Ireland) and it has been the source of much academic vitriol (see in particular Milanovic and Papic, ‘As Bad as it gets: the European Court of Human Rights's Behrami and Saramati Decision and General International Law’ (2009) International & Comparative Law Quarterly 267). The court dodged the issue by stating that as the UK had not raised the argument regarding attribution in the domestic cases they were estopped from doing so in the case at Strasbourg. - Al- Skeini at [100]

This judgment is a welcome one as it has buried quite a few of the court’s extra-territorial jurisdiction bloopers from Bankovic and other cases. Three in particular jump out from my preliminary look at the judgment. First, the idea that control over premises as distinct from control and authority over people gave rise to jurisdiction. Second, the idea that unless you can guarantee all the rights in the Convention you don’t have to guarantee any. Third, the idea of the ‘espace juridique’ which caused much academic bafflement post-Bankovic.

Control over premises

The European Court of Human Rights had begun to draw analogies between the jurisdiction held to arise in the context of embassies and consulates, and other situations where States and their agents exercise a high degree of autonomy within premises on foreign territory, specifically prisons and detention centres.  This shift was accompanied by a focus on control over premises as the source of jurisdiction, rather than on the acts of State agents and authorities. The court had held in Al-Saadoon and Mufdhi v UK that the jurisdiction arose in that case (following on from the Hess v UK judgment in 1975) because of the control that the contracting state exercised over the premises in which the victim of the human rights abuse was situated, as distinct from the control and authority the state exercised over the individual. Control and authority over the individual had been the benchmark in cases such as W.M v Denmark and Ocalan v Turkey.  In Al-Saadoon the court stated -

The Court considers that, given the total and exclusive de facto, and subsequently also de jure, control exercised by the UK authorities over the premises in question, the individuals detained there, including the applicants, were within the United Kingdom's jurisdiction [citing Hess v UK]. This conclusion is, moreover, consistent with the dicta of the House of Lords [citing R. (on the application of Al-Skeini) v Secretary of State for Defence [2007] 3 W.L.R.] - Al-Saadoon and Mufdhi v UK at [88] 

The ECtHR buried this developing and diverging ‘control over premises’ line of authority, which reared its ugly, unwanted and ultimately confusing head in the domestic case in Al-Saadoon. The court stated today in Al-Skeini and Ors v UK -

The Court does not consider that jurisdiction in the above cases (referring to Al-Saadoon and other cases) arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question. – Al-Skeini and Ors v UK  at [136]

Accepted tailoring rights to circumstances

The Court had previously held that the application of the Convention was an all-or-nothing exercise in Bankovic. The court would not countenance any tailoring of obligations inherent in the Convention stating - 

'the wording of Art.1 does not provide any support for the applicants' suggestion that the positive obligation in Art.1 (to secure rights to all within the State’s jurisdiction) [...]  can be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question'. Bankovic at [71]

This absolute statement was undermined in various ways in the court’s own jurisprudence and the Convention. Firstly, the Convention contains rights which by their nature cannot be secured outside the home territory, such as the right to move freely within the territory of a State as the court acknowledged in W.M. v Denmark. Secondly, the Court has tailored the obligations of the Convention where contracting States have lost control over a part of their home territory as the Court did in Ilascu and Ors v Moldova and Russia where states were only held to have to guarantee positive obligations. Thirdly, there is scope for cause and effect jurisdiction under the Convention (Andreou v Turkey, Pad v Turkey). The Court finally explicitly accepted that rights could be tailored and divided in certain circumstances in today's judgment stating -

It is clear that, whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be “divided and tailored”.  – [137]

Espace juridique 

The Court had held in Bankovic that jurisdiction arising from effective territorial control could only arise within the espace juridique/legal space of Contracting States stating

'the Convention is a multi-lateral treaty operating [...] in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States'.- Bankovic at [80]. 

Thus, jurisdiction could only arise through effective territorial control where the forces were on the territory of another contracting State to the Convention. The notion that the Convention has such a geographical limitation has prompted plenty of critical academic commentary. See for example Wilde, “The "legal space" or "espace juridique" of the European Convention on Human Rights: is it relevant to extraterritorial state action?” (2005) European Human Rights Law Review 116; Leach, “The British Military in Iraq - the Applicability of the Espace Juridique Doctrine under the European Convention on Human Rights” (2005) Public Law 448;

The court in Al-Skeini finally buried the idea of espace juridique in a paragraph which seemed  to wonder at what all the “espace juridique" fuss was all about. The court stated -

The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a “vacuum” of protection within the “Convention legal space” (see Loizidou (merits), cited above, §78; Banković, cited above, § 80). However, the importance of establishing the occupying State’s jurisdiction in such cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe Member States. The Court has not in its case-law applied any such restriction (see amongst other examples Öcalan, Issa, Al-Saadoon and Mufdhi, Medvedyev, all cited above). - Al- Skeini at [142]

A final comment is reserved for the now retired justice Giovanni Bonello’s extraordinary concurring opinion. Justice Bonello was one of the most senior and highly respected judges of the Court and what was perhaps his final concurring opinion at the Court is perhaps the most eloquent I have had the pleasure of reading. Judge Bonello couldn’t resist taking a pop at the UK and indeed a swipe at the UKSC to boot. The judge was particularly scathing in his assessment of the so called “human rights imperialism” argument championed by the late Lord Rodger in the House of Lords decision on Al-Skeini.  Lord Rodger had argued that -

“the idea that the United Kingdom was obliged to secure observance of all the rights and freedoms as interpreted by the European Court in the utterly different society of southern Iraq is manifestly absurd.”

While there was certainly some merit in Lord Rodger’s argument, the real problem lay in the context i.e. Lord Rodger had ignored the fact that the UK had illegally invaded Iraq in the first place and as a result the human rights imperialism argument reeked of hypocrisy. Judge Bonello stated - 

It ill behoves a State that imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy. It is like wearing with conceit your badge of international law banditry, but then recoiling in shock at being suspected of human rights promotion.

Amen to that.

Al's well that ends well?

The European Court of Human Rights announced on Thursday that its long awaited Al-Skeini and Others v UK Grand Chamber judgment will be released on the 7th of July. 

The applicants in this case had sought judicial review in the UK of the Secretary of State's failure or refusal to conduct independent inquiries into the deaths of six Iraqi civilians during the period when the UK was an occupying power in Iraq. In the domestic case the death of one of the civilians, Baha Mousa, who was apparently subjected to severe ill treatment while detained on a British base, is now the subject of an independent public inquiry. The remaining five claimants were killed in separate armed incidents involving British troops in Iraq but were unsuccessful in their search for independent inquiries at the domestic level. The full facts of the case are outlined here.

The case has a huge potential to impact the conduct of hostilities by contracting States on foreign soil. The Court's jurisprudence on the subject of extra-territorial jurisdiction has been at best convoluted at worst downright contradictory. Much of the problems can be traced to the Court's (in)famous Bankovic et al. v Belgium and Ors judgment in the aftermath of September 11. You may recall this case involved NATO aircraft bombing a television and radio station in Belgrade which resulted in the deaths of multiple civilians. The relatives of those killed and some of the injured brought claims against European participants in NATO for breaching, inter alia, the right to life of the victims. The Court found that there was no jurisdictional link between the victims and respondent States and they did not come within the jurisdiction ratione loci of the States. The Court stated: 

In sum, the case law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.

This case with its focus on effective territorial control remains good law at Strasbourg. The problem is that the Court has recognised jurisdiction to arise in multiple different circumstances outside the effective territorial control model, including within buildings controlled by States on foreign soil (Al-Saadoon and Mufdhi v UK), where State agents exercise control or authority over individuals on foreign soil (W.M. v Denmark, Ocalan v Turkey), and even jurisdictional links of a cause and effect nature, which appear completely at odds with Bankovic, where military forces have fired across international borders and jurisdiction has been found to exist as a result of this (Pad and Ors. v Turkey, Andreou v Turkey). The sources of jurisdiction held to exist in these cases make the blinkered focus on territorial control in Bankovic unsustainable and this conflict is brought into sharp focus in the Al-Skeini and Ors cases, which call on the court to determine whether jurisdiction has arisen in multiple circumstances. The most interesting of the Al-Skeini cases is that of the killing of Muhammad Abdul Ridha Salim. Mr. Salim's house was surrounded by UK forces who were engaged in a search and arrest operation when he was shot. There is a case to be made that the soldiers in this case were exercising effective control over the premises in which he was located, that they as State agents were exercising effective control over him as an individual at the time and obviously also a case to be made for cause and effect type jurisdiction to arise in this particular case. So the ECHR must determine the point at which persons begin to fall under the jurisdiction of a contracting State when they come in contact with the State's military forces acting extra-territorially. The implications of this judgment for the involvement of States in military operations abroad and for the conduct of hostilities are potentially massive. 

And so I await the Court's judgment on Wednesday with the nerdy, earnest anticipation of a child attempting to sleep on Christmas eve. Will Santa answer my letter and bring me a well reasoned, explanation of the Court's jurisprudence casting Bankovic into the fiery depths of legal hell and leaving me with a warm fuzzy feeling that all the doubts and confusion about the Court's extra-territorial jurisprudence have been resolved? Or will I get the jurisprudential equivalent of a bag of coal? Tune in to the Court's webcast on Wednesday to find out.

Further reading -

Here's a link to some much more erudite and comprehensible analysis on the EJIL blog from our own Marko Milanovic, whose new book deals with many issues related to this subject. 

You may also want to have a look at Rick Lawson's chapter in this recent book and this oldie but goodie article from former judge at the ECHR Loukis Loucaides, “Determining the extra-territorial effect of the European Convention: facts, jurisprudence and the Bankovic case” (2006) European Human Rights Law Review 391.