June 25, 2012 § 1 Comment
Last week I presented my paper ‘Where Blame Lies: State Responsibility and the Accountability of Non-State Actors’ at the International Studies Association (ISA) Conference. The event was held at the University of Glasgow. An abstract for the paper is provided below.
States are ultimately responsible for the abusive acts of non-State actors which violate human rights. The ability of non-State actors to threaten the enjoyment of human rights is of increasing concern, and as such there are many circumstances in which potential abuses can be said to arise from the actions of international organisations, transnational corporations, armed militias and opposition groups. As a result, legal debate has arisen concerning whether these non-State entities could, and indeed should, be held directly accountable in international law, or whether such measures would undermine the authority and responsibility of States.
This paper seeks to analyse the different legal approaches utilised in the regulation of non-State actors and the difficulties in extending direct liability, such as the inadvertent ascription of greater status to non-State entities. Moreover, it seeks to assess the argument that in the wake of globalisation, we have reached a stage where the liability of non-State actors is vital given the minimal, non-interventionist role played by States, and their diminishing economic and political capacity to protect. Would this shift in conception be a positive and necessary step forward, or undermine legal fundamentals of human rights protection?
It has been a long journey with this piece. I wrote this abstract in the second month of my PhD back in October on a whim and was somehow accepted to present. As I prepare for annual review this week it has been great to reflect on my progress over the past 10 months or so.
My experience at the conference was extremely positive in many respects. It has forced me to critically engage with some of the foundational legal and theoretical arguments around which I will centre my future doctoral research, and has provided me with a great deal of new knowledge and perspectives from the various other disciplines represented at the conference.
To be given the opportunity at such an early stage to speak alongside such established names and to learn from their research has been extremely motivational. I look forward to developing my research in new directions over the coming months.
- Lee McConnell
April 28, 2012 § 1 Comment
Earlier this year I presented my paper ‘Animals as Property: The Adequacy of Current Legal Protection ‘at the Critical Perspectives on Animals in society conference at the University of Exeter. As I mentioned in my previous post, many of the sessions at the conference were captured on video and have recently been made available online via the CPAS YouTube page.
This was the first paper that I had delivered at a conference and so naturally I was a little nervous, but everything seemed to go okay in the end. Below is an embed of the session at which I spoke. Kim Stallwood speaks first, and I’m on at around 29:50.
My thanks again to the CPAS team, especially to Chris and Jess who have put a lot of extra work into producing these excellent videos.
- Lee McConnell
April 5, 2012 § Leave a comment
This week, Sarah Mercer and I presented a paper that we had written together titled ‘Trials of Dissenters: Student and Staff Assessment of an Innovative Module’ at the ALT Conference at Lady Margret Hall, Oxford. The paper was delivered in a session on Tuesday morning, alongside Allison Bone from the University of Brighton.
Our paper served as an update and response to a presentation by Sarah and Chris Rogers at the ALT two years ago which described the early development of a module, the remit of which was to analyse instances of legal dissent demonstrable in historic trials through teaching methods which themselves departed from traditional educative practice. Having studied the first run of the module in the final year of my undergraduate degree, we both agreed that it would be interesting for me to contribute first hand, qualitative data to supplement the views that had been collected by Sarah and Chris in the form of questionnaires.
[Lady Margret Hall, University of Oxford. Photo Credit: Lee McConnell]
Below is the abstract for the paper that we presented:
“In 2010, in a paper presented at the ALT conference in Cambridge, a new module on the trials of dissenters was discussed and the research to be carried out on student perceptions of it described.
In the module various historical trials are examined by the students with an emphasis being placed on the necessity to see them within their historical, social, economic and political context and where the use of non traditional sources such as literature and art are encouraged. In this paper the first year of the module will be reviewed, particularly in relation to how qualitative data received from student feedback has informed changes that might be made to the module for future years. The paper will be co-presented by a lecturer who helped to devise and deliver the module, and by a former student who studied the module in its first year of delivery. As such, it can provide an unusually rounded analysis of the reception of an innovative course.
The paper will be situated within the current academic discourse on pedagogy and assessment and will present information regarding the structure of the module, its reception and its mode of assessment. The delivery of the module was by means of 4 workshops and 4 presentations by students, with no lectures. This mode of delivery was chosen because of the recognition of the need for innovative methods of pedagogy and delivery in innovative courses. The paper will address how effective those delivering the module perceive this to have been, and will also provide evidence of the student experience, to determine whether both lecturer and student formed similar impressions of the reception of the mode of delivery and the extent to which this could be used to inform any subsequent change in the mode of delivery.
The paper will also consider the mode of assessment as it is particularly in relation to assessment that changes have subsequently been made. Initially, it was decided the module should be assessed by the more traditional means of a 3,500 word essay although one where students chose for themselves the trials to be considered. However, during this first year, the lecturers involved in delivering the module became concerned that this mode of assessment was not the best means of assessing students’ engagement with the module outcomes. Consequently, it was decided to change the mode of assessment for the following academic year. The paper will address the reasons for doing so, and what is sought from the altered form of assessment. The paper will also consider the somewhat limited evidence of the reception of this revision.”
The PowerPoint slides that we utilised during the presentation are available here.
The paper was delivered in a ‘call and response’ manner, with Sarah describing the issues encountered from a lecturer’s perspective on the module generally, group formation, functional issues, and assessment past and future. My contribution offered a critical angle on the module from the viewpoint of a student, and attempted some suggestions on the problematic issue of assessment of a module built almost entirely on group work and presentation.
As a postgraduate student the experience has been extremely useful, though it was somewhat daunting to be the youngest person in attendance by far. That said, everyone I encountered was very welcoming and helpful. My thanks to the delegates and to the ALT organisers, particularly Richard Owen and Amanda Fancourt.
- Lee McConnell
March 13, 2012 § 1 Comment
This weekend I presented at the Critical Perspectives on Animals in Society conference at Exeter University. My paper, ‘Animals as Property: The Adequacy of Current Legal Protection’ was delivered at a panel alongside prominent independent scholar and campaigner Kim Stallwood, chaired by Mark Gold.
Below is the abstract for my paper.
“The current methods of legal protection for animals have been in development for around two hundred years, but the prevailing method of protection and all currently enforceable legislation is rooted in welfare, where animals are protected by virtue of their status as property rather than through the ascription of actual rights. This raises many questions about the validity of the legal rights movement, the capability of animals to possess such rights, and whether the current measures for protection are adequate.
By way of an introduction, the core domestic legal protections applicable to farm animals will be discussed briefly, with the intention of highlighting and critically discussing key issues for the benefit of a multidisciplinary audience. Having established these ‘black letter’ legal parameters, the central focus of the presentation will be the debate between the conflicting opinions of animal advocates – those who submit that supposed improvements to animal welfare via legislative provisions are an effective means of bettering the lives of farm animals, and those who attest that welfare campaigns orchestrated under the current legal system are trite, meaningless, bound by human/economic interests and fail to confront or provide adequate protection against the main sources of animal suffering.
Illustrative examples will be drawn from our own domestic system, as well as other world legal systems such as the United States and New Zealand in order to provide a measure of comparative analysis with systems that have made pioneering moves towards limited recognition of rights for some animals, as well as to highlight recurrent issues concerning customary husbandry practices, the economic motivations which may hinder or expedite legislative change, and the prosecutorial/sentencing systems generally.”
The handout that I distributed as part of my presentation is available here.
It was thrilling to speak before such a large and engaging audience, and I was genuinely touched that my paper was so well received. Though the subject on which I presented is entirely divorced from the subject of my doctoral research, I maintain both a strong personal and academic interest in the topic and look forward to developing my research in new directions in the future.
Many of the presentations were recorded on video and should be published online at some point. I will endeavour to update this post with the appropriate links in the future. My thanks go out to the conference organisers Jess Gröling, Nikki Shaw, Daniel Van Strien and my good friend Nathan Stephens-Griffin for assembling a thoroughly interesting programme of speakers and in creating an environment in which academics and activists could build dialogues and participate in constructive exchanges.
- Lee McConnell
January 9, 2012 § Leave a comment
In the light of more civilian casualties attributed to armed rebel group FDLR in the DRC, a look at the recent release of Callixte Mbarushimana from ICC custody and its potential impact.
In late December 2011, the ICC announced that it would release Callixte Mbarushimana following a hearing during which the Pre-trial Chamber found that there were “not substantial grounds to believe that the suspect is individually criminally responsible” for crimes committed by the Hutu rebel group Democratic Forces for the Liberation of Rwanda (FDLR). Mbarushimana, born in the Northern Province of Rwanda, has been associated with the FDLR, a group seeking to recover and defend the national sovereignty of Rwanda, since at least 2004. The group formed as a splinter group of former Forces Armées Rwandaises (FAR) leaders and other exiled Rwandans residing in the Kivu Provinces of the DRC began to organize into militias opposing the new Rwandan Government.
Mbarushimana was arrested in France in October 2010 where he had been resident as a political refugee since 2003. During this time, the suspect served as a member of the FDLR ‘steering committee’, a group responsible for general policy composed of representatives of both political and military wings, and was appointed FDLR Vice President ad interim following the arrest of FDLR President Murwanashyaka in Germany in 2009.
The prosecution alleged that in January 2009, a campaign carried out by FDLR troops was launched which involved the targeting of the civilian population in Kivu Provinces creating a ‘humanitarian catastrophe.’ It was submitted that in his capacity of Executive Secretary, the suspect was the individual responsible for the implementation of a significant strategic tactic which involved the systematic denial of responsibility and diversion of blame onto other armed parties including the DRC governmental forces ‘FARDC’ through his press releases, and engagement in international peace talks, portraying the FDLR as an actor seeking peace and stability. It was asserted that the suspect was potentially liable under article 25(3)(d) of the Rome Statute, in that he contributed “to the commission or attempted commission of such a crime by a group of persons acting with a common purpose.”
Submissions made by the defence stated that evidence failed to support that the attacks were carried out by the FDLR, with identification of perpetrators via spoken languages being unreliable to the amount of Kinyarwanda-speaking militias, some of which may deliberately seek to conceal their identities. Further, it was submitted that any damage sustained by the civilian population was collateral given the location of FARDC troops stationed amongst the population. Even if some civilians did perish at the hands of FDLR soldiers, it was argued that those killings were not authorised by the FDLR leadership. As such, the defence submitted that the prosecution had ‘failed to prove that the suspects conduct gave any causal contribution to the commission of the ‘humanitarian catastrophe’ attributed to the FDLR.
In the decision on the confirmation of charges, the chamber noted the many procedural issues which it had encountered during consideration, noting that the charges and statements of facts submitted by the prosecution had been “articulated in such vague terms that the chamber had serious difficulty in determining or could not determine at all, the factual ambit of a number of charges.” (at para 110) The chamber was unable to be satisfy the threshold of substantial grounds to believe that the FDLR pursued a policy of attacking the civilian population, with the majority taking the view that there was likewise not substantial grounds for believing that the FDLR leadership constituted a “group of persons acting with a common purpose” within the meaning of Article 25(3)(d).
It is perhaps worthwhile to note a few critical points from the dissenting opinion of Judge Sanji Mmasenono Monageng. In his judgement, he stated that he felt the majority’s finding was based on “an incorrect application of the standard of ‘substantial grounds to believe,’” attaching too much weight to evidential inconsistencies, finding that ‘most of the relevant witness statements refer quite consistently to an order issued in or around February 2009’ to create a humanitarian catastrophe, and that there is much indirect evidence which ‘confirms its existence in one way or another’. (at paras 4-6) He also notes potential reasons for witness inconsistencies such as fear of prosecution or attempts to ‘disavow the suspicion of their involvement in the commission of crimes.’(para 12).
Further, Monageng disagrees with majority’s reliance on evidence that the FDLR adhered to principles for the protection of civilians, citing evidence presented by the prosecution demonstrating that troops did not always follow these instructions and respect for the rules may have decreased throughout 2009 (para 14), adding that there are witness accounts of leaders ordering “that anyone not on the side of the FDLR should be considered an enemy, especially Congolese civilians.” (para 15). Monageng is of the opinion that there are “substantial grounds to believe that there was an organizational policy to commit an attack against a civilian population”. He concludes that in viewing the totality of evidence that there is a “clear line of reasoning in the prosecution’s case” and that he sees “triable issues deserving of more rigorous fact finding that only a Trial Chamber can provide.” The entire judgment is available online.
The prosecution’s appeals to halt the release of the Mbarushimana have been rejected, though further appeals may be brought on the grounds of new evidence. Meanwhile, FDLR President Murwanashyaka and Vice President Musoni remain in custody to be tried by the German legal system via the principle of universal jurisdiction. It is possible that this pending trial will feel repercussions – the ICC has been unable to satisfy its evidentiary thresholds on issues which are likely to be common to both trials, further confounding an already difficult procedure given the lack of speciality and access to resources of a common national court. Indeed, the future release of those currently in German custody in the light of Mbarushimana’s release is hinted at in this English translation of Eugene Shimamungu’s article. In spite of his release, already Rwanda has stated that it intends to bring further litigation against Mbarushimana for his alleged involvement in the 1994 genocide.
- Lee McConnell
December 14, 2011 § Leave a comment
An exploration of the lessons learned from Al Bashir and the Sudan concerning immunity and liability of former heads of state in the light of the pending prosecution of Laurent Gbagbo.
It was reported last month that ousted president of the Côte d’Ivoire Laurent Gbagbo was being held in custody and would be prosecuted before the international criminal court (ICC) on four counts of crimes against humanity allegedly committed between November 2010 and May of this year. The acts in question include murder, rape and other inhuman acts performed by pro-Gbagbo supporters following a contentious election in which Alassane Ouattara was eventually recognized as victor. In December of 2010 the Ivorian Constitutional Council initially named Gbagbo as president, despite the recognition by the electoral commission, the EU, US and UN of Ouattara’s victory. The refusal of Gbagbo to surrender power resulted in the extension of sanctions upon Gbagbo and his followers as well as the deployment of UN troops to aid and protect Ouattara, to whom the African Union confirmed legitimacy in March of this year. The following month Gbagbo’s palace was attacked by French helicopters under the auspices of the UN, resulting in his arrest.
Should the pre-trial chamber confirm the charges against him, Gbagbo will be the first former head of state to be tried at the ICC. The Guardian this week reported the stipulation by his arrest warrant that “there are reasonable grounds to believe that a plan existed between Mr Gbagbo and his inner circle [his co-perpetrators]” and that according to the prosecution “there is a sufficient basis to conclude that the pro-Gbagbo forces that put the policy into effect did so by almost automatic compliance with the orders they received.” (It should be noted that calls have been made by non-governmental organizations such as Human Rights Watch to investigate abuses on both sides if a just outcome is to be secured.)
In considering the arrest of Gbagbo I was reminded of the numerous concerns, many in respect of legal immunity, which arose from the issue of an arrest warrant for President Al Bashir of Sudan concerning a ‘counter-insurgency’ campaign that included an unlawful attack against a civilian population in Darfur. The ICC pre-trial chamber issued its first arrest warrant for Al Bashir in March 2009, labelling him an ‘indirect co-perpetrator’ of war crimes and crimes against humanity which raised several key questions regarding the immunity of serving state officials. There is scope under customary international law for serving heads of state to benefit from immunity from criminal jurisdiction of foreign states, as demonstrated by the ICJ in DRC v Belgium (Arrest Warrant Case). Despite indications in the jurisprudence of international tribunals such as the Special Court of Sierra Leone that heads of states may be prosecuted before international courts and tribunals where such forums have jurisdiction, in the cases considered thus far, such as those of Charles Taylor and Slobodan Milosevic, custody and trial proceedings have only been achieved after the head of state was removed from power. Article 27(1) of the Rome Statute seeks to impose jurisdiction regardless of official capacity, but while Sudan is a signatory of the Rome Statute, it has not yet provided ratification. The same is true of Côte d’Ivoire.
In the case of Gbagbo, it would appear any issues regarding the application of the Rome Statute have been avoided. In the ICC documentation authorizing an investigation in Côte d’Ivoire, it is mentioned that on April 18th 2003 the State lodged a declaration accepting the jurisdiction of the ICC in its territory since the events of 19 September 2002 “for an unspecified period of time”. In a letter received on 14th December 2010, the Prosecutor and Registrar of the ICC received a letter from Ouattara in his capacity of newly elected president confirming the continuing validity of the declaration.
In the case of the Sudan, the position is different and confounded by the fact that Al Bashir remains at large as serving head of state. Manisuli Ssenyonjo’s article on this subject provides fascinating analysis of the chamber’s attempts to demonstrate an implicit adoption of Article 27 through the Security Council’s referral of the Sudanese case to the ICC via Resolution 1593 (See in M. A. Baderin & M. Ssenyonjo, “International Human Rights Law: Six Decades after the UDHR and Beyond”, Ashgate 2010, pages 445-75). In spite of this potential justification, it is likely this issue will remain a challenge, should the case reach trial stage.
Despite this differentiation, it is likely that issues regarding indirect perpetration highlighted in the Al Bashir case – the first prosecution before an international tribunal to be based upon this concept – will be considered in respect of Gbagbo. Both indirect perpetration and indirect co-perpetration are recognised in Article 25(3)(a) of the Rome Statute, which provides that individuals may commit crimes “whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible.” The chamber in Al Bashir considered the recent cases of Lubanga and Katanga & Ngudjolo in defining these elements. In respect of indirect perpetration, it was recognized that a leader must “use his control over the apparatus to execute crimes… [mobilising] his authority and power within the organization to secure compliance with his orders.” In respect of indirect co-perpetration it was recognized that the carrying out of essential individual contributions to the common plan through another person was necessary. (Further analysis of the development of this concept has been made by Jessberger and Geneuss.)
With regard to Al Bashir, the chamber considered there to be reasonable grounds to believe that as president of the Sudan, Al Bashir played an essential role in coordinating the design and implementation of core components of a common plan which included an unlawful attack on a civilian population. As such, the chamber found there were reasonable grounds to believe that Al Bashir was criminally responsible as an indirect perpetrator or indirect co-perpetrator for offences similar to those alleged against Gbagbo.
The matters considered by the chamber in respect of Al Bashir who remains at large may find their first practical application in the case of Gbagbo. Ssenyonjo states in his analysis of the Al Bashir case that pursuing liability through indirect (co)perpetration represents the “best way to ensure accountability of such leaders” and as such, the future application in the respect of Gbagbo could prove to be an important step in securing recognition of the international criminal responsibility of senior state officials.
- Lee McConnell