The Universal Declaration of Human Rights: An “International Magna Carta”

(Photo credit: Fanack)

On 14 November 2008, a copy of the Universal Declaration of Human Rights (‘UDHR’) burst through Earth’s atmosphere aboard the space shuttle Endeavour. It was delivered to the International Space Station where it now sits in orbit above our planet. That was an event which I described in a separate blog post as “[a]n explosive celebration of two parallel projects which were to some degree successful in uniting the international community: human rights and space exploration.”

It is fitting, then, that the same week that the UDHR turns 70 years old, NASA’s Voyager 2 space probe departed our solar system en route to other worlds: two more monumental events which deserve to be celebrated. In this post I focus on the former and explain how it is that the UDHR, decried by some as a non-binding declaration of little relevance, continues to resonate today.

To begin with a little history. The United Nations was established in 1945, immediately after the end of the Second World War. That body was concerned primarily with securing and maintaining international peace and security; however, human rights was placed on the agenda and the UN Human Rights Commission was set up in order to establish an international framework. The UDHR was drafted between February 1947 and December 1948. Its original purpose was to serve as an initial declaration on human rights, to be followed by two legally binding covenants – the International Covenant on Civil and Political Rights (‘ICCPR’) and the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). Once drafted, the Declaration passed without a single dissenting vote on the floor of the UN General Assembly.

One of the most striking features of the process which led to its creation was the role played by delegates from states, both large and small, from across the entire globe. In an excellent article in the Human Rights Quarterly, Susan Waltz explains that 250 delegates and advisors from 56 different countries participated in its creation.

There were also – perhaps for the first time on such a global scale – a large number of powerful female voices which contributed to shaping the UDHR. Eleanor Roosevelt was Chair of the Human Rights Commission, responsible for overseeing the process. However, it was arguably the individual female delegates who left the biggest mark. Waltz notes in particular that the Indian delegate, Hansa Mehta, took issue with the gendered phrase “all men are created equal.” Despite acquiescence on the part of Eleanor Roosevelt in relation to the wording, Mehta and the UN Commission on the Status of Women refused to relent. In Waltz’s words “it is thanks to Mehta’s persistence that the text of the UDHR reads: ‘All human beings are born free and equal.’”

The involvement of such a diverse array of individuals led to the creation of a rich and varied text. It contains 30 substantive articles, enshrining everything from our basic rights not to be discriminated against, tortured, killed or enslaved; to more forward thinking protections such as one’s right to social security, rest and leisure and to an adequate standard of living. It is a magisterial document, with a simple aim: to establish a “common standard of achievement for all peoples and all nations.”

There has, nevertheless, been some historic disquiet about the fact that the UDHR remained for some time a technically ‘non-binding’ document. Today it is arguable that the unenforceability of the UDHR has, at least in part, been remedied by its inclusion as one of the bases for the Universal Periodic Review – a process by which the UN Human Rights Council periodically monitors the human rights compliance of its member states. It now sits alongside binding treaties such as the ICCPR and the ICESCR and the Working Group of the UN Human Rights Council can make recommendations for states to adopt which are based on its provisions.

Putting the above aside, however, prominent human rights commentators such as William Schabas have long been critical of the binding/non-binding dichotomy. They argue that to dismiss the UDHR as a non-binding instrument is to drastically downplay the impact it has had since its inception. I would go further and suggest that it is perhaps precisely because of its original status that the document was drafted in such broad terms and has since come to shape the global dialogue about human rights, both within and outwith the courtroom.

To begin with the legal sphere, despite its ‘non-binding’ status, the UDHR has been relied on by judges sitting in courtrooms across the globe – from the International Court of Justice (‘ICJ’) to our own Supreme Court.

The ICJ described the principles enshrined under the UDHR as “fundamental” in the 1980 case of United States Diplomatic and Consular Staff in Tehran (USA v Iran), concerning the US personnel held hostage in an Iranian embassy. Providing a separate ruling in an Advisory Opinion about the unlawful presence of South Africa in the territory of Namibia, Judge Ammoun took the matter further when he said that certain provisions of the UDHR are binding as they constitute a codification of customary international law, or have since “acquired the force of custom through a general practice accepted as law.” More recently, in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), when explaining the critical importance of the prohibition on torture, the ICJ relied on the provisions of a number of “universally applicable” international instruments and “in particular the [UDHR].”

Turning to the position in our own domestic courts, the Supreme Court has referenced the provisions of the UDHR in a large number of important cases. Its provisions on equality and non-discrimination were noted in Lord Bingham’s landmark ruling in A v Secretary of State for the Home Department, that the government’s policy of indefinitely detaining foreign nationals pursuant to terrorism legislation was incompatible with their human rights. Another case, in 2013, saw the Supreme Court dismiss a contrived argument by the government that the appellant, Mr Al Jedda’s, statelessness was a result of his failure to re-apply for his Iraqi nationality rather than the government’s deliberate revocation of his British citizenship. Lord Wilson, giving the leading judgment, explained his reasoning by reference to the UDHR:

The evil of statelessness became better understood following the re-drawing of national boundaries at the end of the two world wars of the twentieth century and following, for example, the Reigh Citizenship Law dated 15 September 1935 which provided that all Jewish people should be stripped of their citizenship of the German Reich. The [UDHR] adopted by the United Nations on 10 December 1948, provided in article 15:

(1) Everyone has the right to a nationality

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to    change his nationality.

Just this year, in Lee v Ashers Baking Company Ltd, the Supreme Court found that a refusal by a Christian bakery to produce a cake with the message ‘Support Gay Marriage’ was not unlawful. This was because the bakers would have refused to supply such a cake to anybody, not just the gay man who sought to purchase it. Nevertheless, Baroness Hale referenced the provisions of the UDHR when explaining that she did not seek to “minimise or disparage” the problem of discrimination against gay people:

Everyone, as article 1 of the [UDHR] put it 70 years ago is “born free and equal in dignity and rights”. Experience has shown that the providers of employment, education, accommodation, goods, facilities and services do not always treat people with equal dignity and respect, especially if they have certain personal characteristics which are now protected by the law. It is deeply humiliating, and an affront to human dignity to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope

The historic reliance placed on the UDHR by both the highest court in our land and the principal legal institution of the UN belies any suggestion that it is no more than a non-binding declaration.

Perhaps more important than any citation by lawyers or judges, however, is the use of the UDHR by ordinary people. I explained above that its provisions were shaped by delegates from around the world. It has also since been translated into more languages than any other existing text. Because of this the UDHR has come to operate as a yardstick against which victims of human rights abuses everywhere have been able to measure and express their own grievances.

In the words of Professor David Kennedy in his excellent book ‘The Dark Sides of Virtue’:

[The UDHR] is used by individuals and civil society groups in order to protest against forced evictions of slum dwellers from an informal settlement in Nairobi, by Chinese workers protesting against repressive exploitation of their workforce as well as by Western civil society groups protesting against torture in Guantanamo.

In these situations, he says, the UDHR does not act merely as an ‘inspiration’, but “as a last desperate attempt to formulate experiences of pain, deprivation, and distress in a politically more powerful language.” It is in its ubiquitous use by grass roots human rights movements – rather than in the footnotes of legal judgments – that its impact can be most keenly felt.

This modern application of the UDHR – rather than the original intention of its drafters – is what lends credence to Eleanor Roosevelt’s description of the document as an “international Magna Carta.” It is well known that the Magna Carta was drafted into law in 1215, but famously fell into obsolescence for centuries until great 17th and 18th century legal thinkers, such as Sir Edward Coke and Sir William Blackstone, began again to reference it in their legal commentaries. Since then it has become both a key statement of our basic rights and freedoms and a part of our common law.

It is precisely because Magna Carta was obtained at the point of a sword that its proponents were able to extract such sweeping concessions from King John. Similarly, the fact that the UDHR was originally considered to constitute no more than a non-binding declaration is what enabled its proponents to garner almost unanimous support for its wide-ranging and varied provisions. Whatever may have been the drafters’ original intention, however, the UDHR has since blossomed into one of the most important human rights documents in existence. Its provisions have played on the lips of human rights advocates across the globe and many now have the force of law.

This shift over the course of 70 years, from what many considered to be a symbolic gesture to a battle cry for the aggrieved and a legal instrument in its own right, is where Eleanor Roosevelt’s words truly come into their own.

 

 

 

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Taking “Play Money” Seriously: Re-Considering our Definition of Gambling

(Image credit: UK Gambling Commission)

“The laws of California and Maryland do not trifle with play money.” Those were the words of Justice Bredar as he dismissed a claim by Mia Mason against Machine Zone Inc., the creator of Game of War: Fire Age.

Players of the game were able to purchase virtual currency which could be used to spin an in-game wheel for a chance to win virtual prizes. Mason had attempted to argue, in the US Fourth Circuit Court of Appeals, that this mini-game violated state gambling laws. The judge rejected her claim. He was moved by the fact that, save through a secondary market which Machine Zone expressly disavowed in its Terms of Service, the game operated a ‘closed loop’ system meaning in-game currency and prizes could not subsequently be converted back into ‘real money.’ A number of judges and gambling regulators around the world have taken the same view.

In what follows I argue that it is perhaps time for us to start taking ‘play money’ a little more seriously.

The position in the United Kingdom

While gambling in some form or another is as old as civilisation itself, our perception of what falls to be defined as such has shifted dramatically over time. In the recent Supreme Court case of Ivey v Genting Casinos, Lord Hughes set out a brief history of the regulation of gambling in this country. His whistle-stop tour highlighted a softening in society’s stance, from the rigidity of the early legislation, such as the Gaming Acts 1664 and 1710, to the more permissive, codified statutory scheme introduced with the Gambling Act 2005.

The 2005 Act, among other things, established the Gambling Commission to act as a watchdog over the new legislation. Section 3 stipulates that gaming, betting and participating in a lottery are all forms of gambling which fall to be regulated. The focus of this post will be on the definition of ‘gaming’ or ‘games of chance’ found under section 6 of the Act. In short, the definition covers games which involve an element of chance and which, when played, offer the opportunity to win a prize. Importantly, ‘prize’ is defined as:

  • Money or money’s worth, and
  • Including both a prize provided by a person organising gaming and winnings of money staked.

This definition encompasses most forms of traditional gambling. It is also wide enough to cover some – but not all – iterations of the games of chance which are deployed by companies operating in the modern video games industry.

‘Skins trading’ – a paradigm case

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One example of a practice which falls within the definition is ‘skins trading’. In February 2017, the Gambling Commission prosecuted Craig Douglas and Dylan Rigby for being officers of an unlicensed gambling facility. The two pleaded guilty and were ordered to pay £91,000 and £174,000 respectively. Douglas and Rigby were directors of a company called Game Gold Trading Ltd which operated and advertised a website called FUT Galaxy through which people could use FUT coins – a virtual currency found within the FIFA football video games – to partake in activities such as placing bets on real-life sporting events. Crucially, the funds could be withdrawn and sold for real money on an unregulated secondary market. The in-game currency therefore became money or money’s worth.

District Judge McGarva, sentencing the defendants, was shown footage of a 12-year-old boy gambling on the website which she said “hit home … how serious” the matter was. She described the effect of online gambling on children as “horrific”.

Following the prosecution of Douglas and Rigby, the Gambling Commission issued a position paper on ‘Virtual Currencies, eSports and Social Casino Gambling’. It reiterated that:

Where in-game items can be traded or exchanged for money or money’s worth outside a video game, they acquire a monetary value and are themselves considered money or money’s worth.

According to the paper, when invited for responses, representatives of the video game industry explained that “in-game items are … not intended to be exchanged for cash, either with the games providers, with other players or with third parties”. They argued that individuals such as Douglas and Rigby were taking advantage of the open nature of their games and the opportunities they offered to players to customise in-game avatars.

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Craig Douglas and Dylan Rigby

That, however, has not always been the case. In a lengthy report, journalists at Bloomberg investigated ‘skins trading’ within the game Counter Strike: Global Offensive (CS:GO). While the initial reception to the game was lukewarm, Valve Corporation, the developer, introduced the ability for players to customise their weaponry – guns, knives etc – with cosmetic ‘skins’. Following this, the article explains, CS:GO’s player-base grew by 1,500%.

The ‘skins’ in CS:GO were capable of being acquired, transferred to third-party websites akin to FUT Galaxy and used as currency to place bets on professional CS:GO matches. There was also a “liquid market to convert each gun or knife back into cash.” Bloomberg revealed that the largest third-party website, CS:GO Lounge, was actively supported by Valve – the company’s logo displayed clearly on its website and its moderators present in the forums, offering to provide advice through Valve’s official channels.

Given the extraordinary size of the industry, it is no wonder Valve wanted a slice of the profits. In an article in The Lines, a researcher behind a study conducted by Eilers & Krejcik Gaming explained that the “total handle across all skin betting sites was on pace to exceed $7bn” in 2016. Importantly, it is also clear that a large proportion of those betting with skins were young people. Indeed, research carried out by the Gambling Commission and published in its March 2017 position paper suggests that a fifth of those betting on e-sports matches are between 18 and 24, while 42% are 25 to 34. Notably, 90% had placed bets using in-game items thereby highlighting the prominence of virtual currencies. While there was no figure relating to those below the age of 18, investigative reports by Bloomberg and Polygon are replete with references to interviews with teenagers about their gambling habits. One boy from the US explained how his 13-year-old sibling resorted to using their grandparents’ credit card to acquire more skins, only to lose thousands of dollars. Another, pertinently, added that while he understood the skins had value, squandering them did not feel like losing “real money.”

In June 2016, Valve was sued by a player of CS:GO for violating gambling laws in the US. One month later it issued cease and desist letters to a number of gambling sites asserting that they were in violation of the non-commercial use clause in the Steam Subscriber Agreement.

While this disavowal by Valve was welcome, there remains a gap in the regulatory framework which enables companies to design activities which look like gambling, cost real money to play, but which remain entirely unregulated.

The rise of ‘loot boxes’

In November last year, major publisher Electronic Arts released Star Wars Battlefront II. The game – and a number of others released around the same time – was met with almost universal resentment for its inclusion of ‘loot boxes’: virtual containers which could be purchased for real money and offered players the chance to win randomly generated virtual prizes.

The UK Gambling Commission – predictably, given its earlier position paper – asserted that ‘loot boxes’ did not fall foul of the Gambling Act 2005 because the virtual items could not be converted back into cash. They therefore did not constitute money or money’s worth.

A legal challenge to that decision would have given rise to some interesting arguments about the definition of ‘money’s worth’. The phrase was considered in 1998 by the Judicial Committee of the House of Lords – now the Supreme Court – in R v Burt and Adams Ltd. The majority of the court dismissed the appeal, finding that no offence under the Gaming Act 1968 had been committed when a company allowed ‘plaques’ and ‘teddy bears’ to be accumulated and ‘spent’ to acquire prizes with value exceeding the statutory limit on winnings which then existed. Lord Hope stated that the term ‘money’s worth’ was not broad enough to encompass teddy bears which had an intrinsic value as toys. However, dissenting, Lord Hoffman described the phrase ‘money’s worth’ as a legal “term of art”, adding that it encompassed anything “capable of being turned into money.”

This could be interpreted as including anything capable of being traded, potentially encompassing virtual items which pass hands on thriving secondary markets. However, in my view, a court would likely view the Gambling Commission’s assessment of the current law as correct, particularly where developers expressly disavow secondary markets within their terms of service.

The position elsewhere

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The rigid approach taken by the UK regulator contrasts sharply with the stance taken by its Belgian counterpart.

In a detailed report on ‘loot boxes’ the Belgian Gaming Commission set out that, under the country’s Gaming and Betting Act 1999, a game of chance is defined as consisting of the following ingredients:

  1. A game;
  2. Involving the making of a wager or bet of any kind;
  3. Providing players with a chance to either win or lose; and
  4. Incorporating an element of chance

Elements 1 and 4 largely match up with those found under our own legislation.

However, the Report explains that in relation to a wager or bet:

Use of money is not necessary. Just because virtual currency is used in a game does not mean that there is no wager. It must be possible to attribute a value to this wager, however. Value can be defined as the degree of usability. Specifically, items that the player finds useful or nice and for which he pays money.

The purchase of a ‘loot box’ using in-game currency which one cannot acquire with real money is not in violation of Belgian law. However, where a player can acquire virtual currency and then use it to purchase ‘loot boxes’ – or simply use real money to buy a ‘loot box’ outright – the player is engaging in a wager for the purpose of the Belgian legislation. Critically, the Report goes further and adds that for an activity to be considered gambling a player must simply be provided with a chance at a “win of any type.” In other words, winning something of purely aesthetic value is covered: “[w]hat is important is that players attach value to [the item] and that this value is also emphasised by the game developers themselves.”

The position in Belgium, therefore, is that playing a game of chance is a regulated activity even where virtual currency cannot be converted back into ‘real money.’ Based on this conclusion the Report found that the ‘loot boxes’ deployed in Star Wars Battlefront 2, CS:GO, Overwatch and FIFA 18 were all unlawful games of chance.

The argument for reform

The principal issue with the approach taken in the UK, and elsewhere, is that it fails to factor in the importance of the increasing number of social interactions which take place online.

It is abundantly clear, as the Belgian report explains, that people who play online games value the items they acquire through both in-game and real currency. It is difficult to see why there should be an arbitrary fetter on the regulator where a developer cuts out the function which allows for prizes to be converted back into ‘real money.’ This is particularly so given that the effect on players – and young people especially – is the same. While many online games cannot function properly without virtual economies, the issue is not with ‘play money’ per se. The problem is with systems which encourage the expenditure of ‘real money’ on lotteries to acquire a chance to win valuable virtual items. These activities are likely to ingrain addictive cycles of behaviour at a young age, or accentuate existing habits – conclusions supported by a recent study conducted in Australia.

One could perhaps argue that responsibility should fall, in the first instance, on the Pan-European Game Information (‘PEGI’) rating system which informs consumers which age-ranges a particular game is suitable for. When the WCCFTech website reached out to PEGI, however, it had the following to say:

[O]ur approach is similar to that of ESRB … The main reason for this is that we cannot define what constitutes gambling. That is the responsibility of a national gambling commission. Our gambling content descriptor is given to games that simulate or teach gambling as it’s done in real life in casinos, racetracks, etc. If a gambling commission would state that loot boxes are a form of gambling, then we would have to adjust our criteria to that.

This reasoning is frustrating, particularly when one considers the UK Gambling Commission’s position on the matter:

The definition of what is legally classed as gambling is set by Parliament rather than by us. Our role is to apply that definition to activities that we see and any changes to that definition need to be made by Parliament. 

While that is clearly correct, these statements simply serve to highlight that as the law currently stands nobody is willing to grasp the nettle.

The way forward

It is, in my view, imperative for all of the reasons given that a change in the law is brought about to ensure that in-game gambling facilities, which cost real money to play, are subject to some form of regulation.

While the usual way in which to effect such a change is by way of primary legislation, in this case a better route is provided by the Gambling Act itself.

Section 6(6) reads as follows:

The Secretary of State may by regulations provide that a specified activity, or an activity carried on in specified circumstances, is or is not to be treated for the purposes of this Act as—

(a) a game;

(b) a game of chance;

(c) a sport

The purpose of this provision is made clear in the Explanatory Note to the Act:

The purpose of subsection (6) is to cater for circumstances, which might arise in the future, where either a new product or activity is introduced and there is doubt as to its treatment under this section, or where the interpretation being given to this section means it would be prudent to put beyond doubt the proper classification of a particular activity in relation to the definition of gaming.

This section was designed for precisely the situation we now find ourselves in. A new product has been released which could pose a danger to young people – a group which the Gambling Act was specifically designed to protect – and which does not fall neatly within the parameters of the substantive provision. Section 6 offers an elegant solution by allowing the Secretary of State to designate ‘loot boxes’ as ‘games of chance’ without disturbing the core provisions of the Gambling Act.

Vigilante Groups and the Law of Entrapment

In the Court of Appeal last month, the Lord Chief Justice, Lord Burnett, gave judgment in R v TL. The case concerned the question of when a non-state actor’s behaviour might found an abuse of process argument resulting in a criminal trial being halted.

The facts can be stated simply. A man known as Mr L was put on trial at Nottingham Crown Court after he allegedly used an app called ‘Say Hi’ to invite a 14-year-old girl to his home to engage in sexual activities with him and his wife. Unbeknownst to him, the person he was communicating with was in fact Mr U, a member of the vigilante group ‘Predator Hunters’. The group tipped off the police and a prosecution was mounted. However, prior to the start of the trial, Mr L’s barrister argued that the prosecution was an abuse of the court’s process because the actions of Mr U’s organisation amounted to entrapment. Although the judge initially rejected the application, it was re-opened and successfully argued halfway through the trial.

Despite the accused’s victory at first instance, the prosecutor subsequently appealed the ruling and won.

Entrapment – Generally

It is worth saying a little about entrapment before discussing the judgment itself. The first thing to note is that entrapment, per se, provides no defence under English law. Nevertheless, where a person is tricked into committing a crime which he or she would not otherwise have carried out, certain remedies are available.

The leading case is R v Looseley which was decided by the House of Lords – now the Supreme Court – in 2001. Lord Hutton explained that the court must consider:

[W]hether a person has been persuaded or pressured by a law enforcement officer into committing a crime which he would not otherwise have committed, or whether the officer did not go beyond giving the person an opportunity to break the law…

While courts have the power to exclude evidence from trials, the principal remedy where entrapment is found to have taken place is its inherent jurisdiction to stay proceedings.

A court has the power to do this in two situations:

  1. Where it is no longer possible to provide the defendant with a fair trial; or
  2. Where it would not be fair to try the defendant because it would amount to an abuse of the court’s process.

The latter is what the Court of Appeal was concerned with in R v TL. What makes the case interesting is that the law of abuse of process generally centres around the actions of state officials. In R v Horseferry Road Magistrates (ex parte Bennett), for example, the House of Lords held that a court must “jealously protect [its] own process from misuse by the executive” (emphasis in the original). Lord Nicholls also explained in Looseley that the abuse of process jurisdiction enables “courts [to] ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress the citizens of the state”.

Mr L submitted that the same principles should apply equally in cases involving entrapment by private groups such as Predator Hunters. He was not the first to make such an argument.

Entrapment and non-state entities

There have been a string of cases considering the application of the abuse of process jurisdiction to non-state entities – in particular, to undercover journalists.

In two important judgments the Court of Appeal dealt with alleged entrapment by the notorious Investigations Editor of News of the World, Mazher Mahmood. In both instances he had disguised himself as a wealthy sheikh before persuading unsuspecting celebrities to secure Class A drugs on his behalf. The first case, R v Hardwicke and Thwaites, concerned an appeal by the Earl of Hardwicke and his colleague, Thwaites, against their convictions for supplying cocaine to the fake sheikh and another “wealthy Arab”. Lord Justice Kennedy, dismissing the appeals, explained that it would be wrong “to … accept that commercial lawlessness [i.e., the actions of undercover journalists] and executive lawlessness should be treated in the same way”.

The facts in the second case, R v Shannon, were very similar. John Shannon – star of Grange Hill and London’s Burning – unsuccessfully appealed his conviction on the basis that evidence from another of the fake sheikh’s operations should have been excluded at trial. Lord Justice Potter honed in even more closely on the requirement of malpractice by the state when he explained:

[I]n so far as abuse of process considerations might be relevant, there was no suggestion of criticism of the part played by the police or Crown Prosecution Service, the organs of the state responsible for gathering and presenting the evidence and of instituting proceedings.

A few years later the matter resurfaced in a very different case. Saluja concerned a doctor who had supplied an undercover journalist for the Sunday Times with a sickness certificate despite the fact that she was not, in fact, ill. The resulting disciplinary proceedings were stayed for abuse of process. However, Mr Justice Goldring overturned that decision, asserting that where non-state actors are involved a trial should only be stayed where the conduct is “so serious … that reliance on it in the court’s proceedings would compromise the court’s integrity”.

Following these judgments, the door was certainly kept ajar for such arguments to succeed. However, the space left was narrow and the courts consistently made clear that the actions of non-state entities would rarely be sufficiently egregious to sustain a submission of abuse of process.

Criticism

This reticence has been the subject of criticism.

In an article centred around the ‘fake sheikh’ saga of cases, David Sleight opined that “[i]t appears perverse that, while the law protects against the state causing citizens to commit illegal acts, it does not protect against private parties doing the same things”. Andrew Dyer has also argued forcefully that by failing to prosecute the “media’s outrageous lawlessness” the Crown Prosecution Service (‘CPS’) risks rendering itself complicit.

They collectively suggest that more needs to be done by public authorities to both protect individuals from the actions of agents provocateur and to avoid relying on tainted evidence. Where Dyer primarily urges courts to be less averse to staying proceedings in cases of media entrapment, Sleight adds that the CPS has a duty to exercise its discretion not to prosecute individuals where to do so would represent an “affront to the public conscience”.

Although the focus of both papers was on ‘media’ or ‘commercial entrapment’ rather than the actions of vigilante groups, these remain legitimate criticisms. Bearing them and the previous case-law in mind, I now turn back to the ruling in R v TL.

The judgment in R v TL

In R v TL the trial judge found that Mr U and his group did not have sufficient intelligence – i.e., information on which to found a suspicion – to suggest that the ‘Say Hi’ app was being used to groom children. Ergo, he reasoned, the use of the site to contact Mr L went beyond creating an “unexceptional opportunity to commit a crime” and amounted to impermissible entrapment.

The Court of Appeal rejected this approach. Having considered the leading authorities, it found that nothing about Mr U’s conduct compromised the integrity of the prosecution. In doing so, it reiterated that, absent impropriety by the state, it will be a rare case in which the actions of a non-state actor will sustain an application for abuse.

This is in line with the case-law considered above. However, a close reading of the reasoning provided by the judges reveals some guidance as to where the limits of permissible behaviour for groups such as Predator Hunters are likely to lie. To start with, they were moved by the lack of any illegal activity by Mr U and the fact that he actively avoided instigating the sexual advances made by Mr L – instead feigning the innocence of a 14-year-old girl and allowing the accused to initiate those advances of his own accord. The judges also, interestingly, explained that a starting point was to consider whether the same conduct by the police would result in a stay in proceedings. Although it was accepted that a precise comparison would be difficult because investigators and prosecutors are bound by “codes of conduct and strict hierarchical oversight”. This last point indicates one of the reasons why emphasis is placed on the need for misconduct by public officials. It is because they are bound by codified ethical standards and we expect them to act accordingly, with knowledge that, if they transgress, they risk the collapse of any future trial. However, the judges’ analysis makes clear that this result may arise where non-state actors fall short of the same standards to which we hold the executive.

While it could be said that groups like Predator Hunters pursue more laudable aims than journalists concerned principally with profit, the judges were also clearly alive to the excesses of vigilantism. At the close of its judgment the Court of Appeal issued a warning to such groups – particularly those whose zeal might lead them into error – to report suspicious activity to the authorities instead of pursuing suspects themselves. Drawing on the approach taken by the police (and the CPS) it acknowledged that such groups may risk compromising the state’s own investigation or putting those involved in danger.

These warnings, coupled with the judges’ analysis, help to slightly firm up the porous borders of the law on entrapment. However, the Court of Appeal is bound both by precedent and the facts which come before it. Meanwhile, reliance on evidence procured by vigilantes is becoming increasingly commonplace. This, coupled their evolving methods and a complete lack of regulation, magnifies the risk of error and zealotry. Now more than ever, therefore, we require our lawmakers to take the reigns and debate the role we wish such groups to play in our society.

A REJOINDER TO ROB RINDER: YOUTUBE CONTENT – A FORCE FOR GOOD

As a regular viewer of YouTube content, I feel compelled to issue a strong – albeit fairly belated – rejoinder in respect of Rob Rinder’s commentary in the Evening Standard dated 16th February 2018. The crux of his argument was that YouTube consists of almost nothing but “illiterate click bait” and “drivel” which pales in comparison to wholesome TV broadcasting such a Grange Hill and Blue Peter.

The issue with Rob Rinder’s article is that it is, put plainly, knee-jerk nonsense. I should begin by saying that he cannot have looked very hard during his “week [spent] trying to find something half decent”. There can be no denying that there are numerous videos which could rightly be classified as drivel. However, YouTube is a platform which simultaneously hosts a plethora of beautifully rendered, well-researched and inspiring content. Crucially, these videos are also mainstream, with each of the channels I discuss below clocking in thousands, if not millions, of views per video.

A favourite of mine is VSauce: a long running show written and produced by Michael Stevens. The title of his videos frequently posit ambitious and often existential questions such as: ‘what will we miss?’ ‘who owns the moon?’ ‘is your red the same as my red?’ He does not necessarily answer the questions themselves, many of which are arguably unanswerable. Instead, he piques the viewer’s interest before leaping off on a variety of tangents – taking the audience on a voyage of discovery as they learn about philosophy, science, law, politics and more. His talent, energy and eccentricity are a wonderfully eclectic cocktail of attributes which, alongside the high production value of his videos, keep the viewer engaged.

Another channel which garners millions of views per video is Kursgesagt. Its stated aim is “to make science look beautiful. Because it is beautiful”. The content creators do not miss a beat thanks to their gorgeously rendered animations – which appeal to adults and children alike – excellent music, professional voice acting and spellbinding content. The channel plays host to videos on topics as disparate the origins of humanity and the potential efficacy of the ‘universal basic income’.

There are countless outlets which beam educational content out to millions of viewers. Among the most prominent are: TED, Vox, Crash Course History, Geography Now, ASAP Science, CPG Grey, The School of Life and the Great Big Story. In fact, YouTube’s own ‘Education’ section – where many of the above shows coalesce – itself has over 10 million subscribers.

I would add that none of this is to devalue content based around video games which, if done right, much like the underlying games themselves, can be educational, engrossing and important. Venturing off on a slight tangent, I would add that Rob Rinder wrote another article on 25th May 2018 in which he sung the praises of classical music and lamented the fact that young people were being denied “one of life’s great pleasures”. However, thanks to video games, young people are turning to contemporary classical music in droves. They are often spurred on by compilations from the orchestral soundtracks on YouTube, which frequently garner millions of views. In addition, there have been a number of fresh developments by Classic FM, including an entire show based around video game music and the epic ‘Playstation in Concert‘ which was performed in May by the Royal Philharmonic Orchestra at the Royal Albert Hall. Combined, these initiatives are bringing the “transformative” effect of classical music to masses of young people.

The full potential of many of YouTube creators is slowly being recognised. Earlier this year, Vox began producing content for Netflix. Furthermore, while Blue Peter undoubtedly did admirable charitable work, many channels on YouTube have been doing their own for some time. A multitude of content creators over the past few years have raised vast sums of money for notable causes. Popular duo John and Hank Green have an annual fundraising event and have, since 2012, raised over £2 million for various organisations, including the UN Refugee Agency and Save the Children. Even the most successful peddler of what many would label ‘drivel’, PewDiePie, has used his 65 million strong fan base to raise over £1 million for charities including Water for which he accrued sufficient donations to provide 5,111 people with access to clean water.

I do not have children myself and I am sure that YouTube has some work to do in terms of its parental controls and the exclusion of users who violate its terms of service. However, progress is being made. Indeed, this week Alex Jones, a notorious creator of videos filled to the brim with hatred, conspiracy and defamation, was banned from the platform. In any event, however, when it comes to children watching videos about “how best to commit acts of violent robbery on Grand Theft Auto” there must surely be an onus on parents to prevent their offspring viewing content about a game with an age rating of 18+.

To draw this blog to a close, the beauty of YouTube is that it refuses to restrict the ability to publish content to those wielding editorial authority in corporations such as the BBC, ITV or Channel 4. Instead, its business model incentivises grassroots creators to educate and inspire in a bid to take home a slice of advertising revenue.  In short, while there is inevitably plenty of drivel, it is outweighed and outgunned by the mountain of spectacular content which exists on the platform. I suggest that Rob Rinder should be slower to disregard an entire medium based on the work of its worst producers.

Access to Justice and The Rule of Law: UNISON v Lord Chancellor

The Supreme Court today handed down a landmark judgment. The decision concerns employment tribunals which are designed to provide employees with an inexpensive and accessible method of bringing claims against employers who have acted unlawfully.

In 2013, Chris Grayling, then Lord Chancellor, introduced the Employment Appeal Tribunal Fees Order (Fees Order). Ostensibly, it was designed to accomplish three goals:

  1. Transfer the costs burden of the tribunal system from taxpayers onto its users;
  2. Deter people from bringing unmeritorious or vexatious claims; and
  3. Encourage parties to settle their disputes earlier.

The fees ranged from £390 to £1,200, based on the complexity of the case rather than its value. Their introduction resulted in a “dramatic and persistent” fall, of around 70%, in the number of claims being pursued.

In March 2017, UNISON and the Lord Chancellor appeared before seven judges in the Supreme Court. The former argued that the Fees Order unlawfully interfered with the right of access to justice of those using tribunals and that the fees discriminated unlawfully against women and other protected groups. In two unanimous judgments, delivered by Lord Reed and Lady Hale respectively, the court found for UNISON on both counts and quashed the Order with immediate effect. This blog focuses on the first judgment.

The decision is strongly worded. On more than one occasion, the court notes that the Lord Chancellor was unable to explain how the figures making up the fees were even reached. It is also made clear that the system by which claimants could apply to have all or part of their fees remitted was inadequate. In short, the court found that there was a real risk that the Fees Order effectively prevented access to justice; first, by making the service unaffordable to many and second by rendering it futile or irrational to pursue certain claims:

[M]any claims which can be brought in ETs do not seek any financial award: for example, claims to enforce the right to regular work breaks or to written particulars of employment. Many claims which do seek a financial award are for modest amounts, as explained earlier. If, for example, fees of £390 have to be paid in order to pursue a claim worth £500 (such as the median award in claims for unlawful deductions from wages), no sensible person will pursue the claim unless he can be virtually certain that he will succeed in his claim, that the award will include the reimbursement of the fees, and that the award will be satisfied in full.

Twitter has since been awash with statements like the following by Michael Reed of the Free Representation Unit:

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They are right to celebrate. In a decisive and unanimous decision, the Fees Order has been relegated, at least in its current form, to the burgeoning scrapheap of failed policies imposed by Chris Grayling during his tenure as Lord Chancellor. Crucially, aside from the immediate relief provided by the court, the judgment also stands as one of the clearest and most impressive statements about the importance of access to justice as an aspect of the rule of law.

The notion of ‘the rule of law’ can be found in the preambles of the Universal Declaration of Human Rights, the European Convention on Human Rights and has pride of place in various other constitutional documents around the world. Despite its apparent importance, the phrase is often left unencumbered and perched alongside similarly vague references to lofty principles such as “liberty” and “freedom”.

In a bid to lend greater granularity to the principle, Tom Bingham, previously a Law Lord himself, rendered the following definition in his seminal book on the subject:

[T]hat all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered by the courts.

Like Tom Bingham’s book, Lord Reed’s judgment begins with a brief excursion through several centuries of common law jurisprudence. He begins in 1215 with the oft quoted clause 40 of Magna Carta: “[t]o no one will we sell, to no one will we deny, or delay right or justice”. Therein he identifies an early statement of the notion of access to justice which is “inherent in the rule of law” and constitutes a thread which runs through our common law history.

The history lesson and defence of the principle are also coupled with a sharp riposte. It is directed at those identified as labouring under the misapprehension that the administration of justice is a “service” like any other – only impacting those directly involved.

Lord Reed explains:

Every day in the courts and tribunals of this country, the names of people who brought cases in the past live on as shorthand for the legal rules and principles which their cases established […] The written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved, and each of which is relied on as establishing a legal proposition. The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people.

He adds that the mere knowledge that we have the ability to place our grievances before a court, to be determined based on a set of publicised legal principles is what “underpins everyday economic and social relations”. His words, buttressed by the unanimity of the decision, stand as an erudite and powerful defence of one of the central principles undergirding our democracy. The judgment, which serves as an injunction to the executive not to overstep the mark, is also liable to have far-reaching implications.

Importantly, in this connection, the ruling sits alongside a string of similar cases. In 2013, Barbara Gordon-Jones won her judicial review as the High Court declared Chris Grayling’s restriction on books being sent into prisons to be unlawful. Earlier this year, the Court of Appeal ruled that the removal of legal aid for prisoners at particular hearings produced a regime which was “systematic[ally] unfair”. Most recently, the legal aid cuts introduced on Chris Grayling’s watch came under fire by Mr Justice Francis in the Charlie Gard litigation.

Incredibly, it therefore appears that despite making every attempt to constrain judicial review proceedings and to devastate the legal system, Chris Grayling, and the Conservative Party of which he forms a part, have inadvertently achieved the opposite. By backing lazy and unlawful policies, they have handed our judges every possible opportunity to assert their constitutional role and push back against overreaches by the Executive. They have also managed, somehow, to inspire bipartisan sympathy in the media over the denial of legal aid to Charlie Gard’s parents.

 

The Saudi Arms Export Case

Yesterday, the High Court delivered judgment in a case brought by the Campaign Against Arms Trade against the Secretary of State for International Trade.

Over the last two years, Saudi Arabia has spearheaded an international military coalition in Yemen. The band of nine nations responded to a call for military aid by President Hati of Yemen after Houthi rebels occupied the capital city of Sana’a and its surrounding territory in early 2015. At the heart of the case before the High Court lay the decision of the Secretary of State not to suspend arms export licenses to Saudi Arabia in light of the violations of the laws of war which were alleged to have been perpetrated by the Coalition during the conflict.

If a company wishes to export arms from the UK it must first obtain a license to do so from the Export Control Organisation (ECO). Today, the ECO is an arm of the Department for International Trade, headed by the Secretary of State. This framework was developed after the 1997 Labour Manifesto pledged:

[N]ot [to] permit the sale of arms to regimes that might use them for internal repression or international aggression [and to] increase the transparency and accountability of decisions on export licenses for arms. And … support an EU code of conduct governing arms sales.

In October 2000, the Government adopted the Consolidated Criteria – a policy echoing the EU Code of Conduct on Arms Exports. It contained eight criteria for the ECO to consider before granting licenses.

The Applicant relied, specifically, on Criterion 2c which stipulates:

[An official will not] grant a license if there is a clear risk that the items might be used in the commission of a serious violation of international humanitarian law.

In addition, the Applicant drew attention to the ‘suspension mechanism’. The mechanism is designed to allow the Government “quickly to suspend the processing of pending license applications to countries experiencing a sharp deterioration in security or stability”.

Drawing on the above, the Applicant contended that the Secretary of State:

  1. Failed to ask the correct questions and make sufficient enquiries when conducting its Criterion 2c assessment;
  2. Failed to apply the ‘suspension mechanism’ when it should have done; and
  3. Could not rationally have concluded that Criterion 2c was not satisfied in the instant case.

Lord Justice Burnett and Mr Justice Haddon-Cave note fairly early on that the “evidence presented [was] voluminous”. It is also fair to say that the evidence, at times, makes for harrowing reading. The decision is replete with reports by the United Nations, the European Parliament, Amnesty International and numerous other organisations, detailing “systematic indiscriminate attacks … on hospitals, schools and mosques” and the wanton destruction of people “going about their daily activities”. Many of the reports also detail allegedly deliberate attacks on “warehouses, fishing boats and other civilian infrastructure”.

The United Nations overall casualty figure for the period from March 2015 to September 2016 includes 10,963 civilians, 4,014 of whom perished.

Perhaps the most compelling evidence provided by the Applicant emanated from our own legislature. In September 2016, the House of Commons Business Innovation and Skills and International Trade Committees published a joint report which concluded:

In the case of Yemen, it is clear to us that the arms export licensing regime has not worked. We recommend that the UK suspend licenses for arms exports to Saudi Arabia, capable of being used in Yemen.

The report was based on the same evidence which fuelled the Applicant’s case, including information – later confirmed by Saudi Arabia – that UK-made cluster munitions had been used during the conflict.

The Secretary of State, conversely, relied heavily on evidence of process rather than substance.

The Court accepted early on that the Criterion 2c assessment involved the Secretary of State drawing on advice from an array of sources and expertise. As a result, his assessment was entitled to “great weight” and the Applicant was restricted to making an ‘irrationality’ argument. The question for the Court, therefore, was whether the decisions under challenge were so unreasonable that no reasonable Secretary of State could have made them.

Tellingly, Lord Bingham once characterised those pursuing irrationality arguments as having “a mountain to climb”.

In evidence, the Secretary of State drew attention to the close liaison between various departments and arms-length organs which regularly produced international humanitarian law updates on the Yemeni conflict. The Court made clear that this system bore “all the hallmarks of a rigorous and robust, multi-layered process of analysis”. It was also moved by evidence that Saudi officials hoped to improve their own procedures. This included, importantly, the creation of JIAT – a permanent body made up of civilian and military experts and designed to investigate alleged violations of the laws of war.

Based on the above evidence, the Court ruled against the Applicant on all three grounds.

The decision has already generated an abundance of media commentary. In The Brief this morning, the headline reads as follows:

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The statement is more than a little misleading.

While the judgment does indeed include the phrase “the Coalition were not deliberately targeting civilians”, it is prefaced, crucially, by the words “the open and closed evidence demonstrates that the Secretary of State was rationally entitled to conclude as follows …” (my emphasis). Indeed, the Judges made clear early on that their role was not to determine whether or not Saudi Arabia was operating contrary to international law. Rather, they were examining the process by which the Secretary of State came to his decision and whether or not it was reasonable for him to do so.

In the Court’s own words:

[I]n an area where the Court is not possessed of the institutional expertise to make the judgments in question, it should be especially cautious before interfering with a finely balanced decision reached after careful and anxious consideration by those who do have the relevant expertise to make the necessary judgments.

The decision will nonetheless come as a blow to those pushing against the arming of Saudi Arabia. But it is not all bad news for the campaigners. As Rachel Sylvester notes in The Times today, the Judges did conclude that there was a “substantial body of evidence suggesting that the Coalition committed serious breaches of international humanitarian law”. The Campaign Against the Arms Trade has also indicated that it intends to appeal the decision.

Much like the war in Yemen, it appears that neither the legal battle nor the campaigns against Saudi Arabia’s military endeavours are over.

 

“Hell on Earth”: Nuclear Weapons and the Law

The late Christopher Hitchens once referred to nuclear bombs as ‘apocalyptic weapons’. His words were far from hyperbole. In an interview in the Guardian, Sunao Tsubi, described how he was convinced that he had “entered a living hell on earth” after witnessing the ruination of Hiroshima by “Little Boy” – an atomic bomb loosed by an American plane on 6 August 1945. It erased more than 140,000 lives.

In spite of the horrors of Hiroshima and Nagasaki, more than 16,000 nuclear weapons are still in existence. The United Kingdom lays claim to just over 200 warheads. During the course of the general election the question of whether we should ever put our arsenal to use was the subject of fierce debate. In one particularly striking interview, Piers Morgan asked the following question to Dianne Abbott:

What if ISIS … get a nuclear weapon and are about to use it and you know where they are and you know where they are going to fire it from?

He proceeded to berate Abbott for not stating, conclusively, that her party would order a pre-emptive, nuclear strike on a terrorist group situated within another state.

In my view, she was perfectly correct not to do so. His hypothetical question failed to account for a huge number of variables, including the fallibility of human intelligence and the levels of collateral damage involved. To press the nuclear button on Piers Morgan’s terms, however, would not only be morally vacuous, but illegal.

When it comes to warfare, international law consists of three distinct components:

1. The legal principles states must consult before using force (jus ad bellum);

2. International humanitarian law, or the legal principles states must consult during a war (jus in bello); and

3. The largely theoretical principles governing what happens after war (jus post bellum).

In terms of the first set of rules, while it is clear that states have the right to defend themselves, since the 18th century it has only been permissible to carry out a pre-emptive strike in the face of an imminent threat. While some have sought to widen the rule, there is scant support for such a move. It seems, therefore, that without flawless intelligence indicating an immediate nuclear attack Morgan would be advocating a pretty serious violation of international law.

Assuming that we did receive such perfect intelligence, what do the laws governing our conduct during war have to say? In 2005, Jean-Marie Henckaerts and others produced the most comprehensive study of international humanitarian law to date. The first volume, which runs to some 600 pages, contains just a single leaf on nuclear weapons. Indeed, while treaties exist banning all manner of weapons deemed likely to cause superfluous suffering, there is no comprehensive ban on nuclear weapons.

Despite the lack of any specific ban, the use of nuclear weapons would still be illegal in most circumstances. This is because the use of such an indiscriminate weapon will usually violate the principle of distinction, which requires armed forced to distinguish between legitimate (military) and illegitimate (civilian) targets.

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International Court of Justice

In what circumstances, though, might it be legitimate to make use of nuclear weapons? That was the question posed by the United Nations General Assembly to the International Court of Justice in 1994. The resulting advisory opinion makes for a fascinating read.

To the dismay of many, the majority opinion refused to rule out the use of nuclear weapons per se. Rather, it found that a state may still have the right to use such a weapon in an “extreme circumstance of self-defence, in which its very survival would be at stake”. The said state would nonetheless be bound by the legal principles detailed above.

In his dissenting opinion, Judge Schwebel suggested that the majority view was too restrictive. He proposed two situations in which the use of a nuclear weapon might not violate the above principles. First, the use of a small, tactical nuclear weapon against a submarine. Second, against a battalion situated in a remote desert.

The use of nuclear weapons in the above situations could potentially satisfy the principles of distinction and military necessity. However, it is difficult to see how using such a weapon would be proportionate. Importantly, the majority opinion dealt with this point by making clear that a proportionality assessment must factor in environmental considerations:

[T]he environment is not an abstraction but represents a living space [and] the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States … is now part of the corpus of international law … States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives.

Thus, even if a legitimate target is discerned, it is unlikely to be lawful to use a nuclear warhead which could incinerate an area the size of a city, rendering it uninhabitable.

It is pertinent to say a little something, at this juncture, about the jus post bellum. The importance of developing legal principles which govern our activity after a war has taken place has gained traction in recent years, particularly as a result of the West’s misadventures in the Middle East.

In this respect, some theorists have attempted to establish an obligation on participants in war to restore any environmental damage which they cause. If such a principle were to crystallise, while it would not render the use of nuclear weapons illegal per se, it would make their use vastly more expensive, to the point of being untenable. Douglas Lackey also suggests that placing such constraints within the body of the laws of war would incentivise military commanders to take them seriously.

As it stands, international law appears to render the use of nuclear weaponry illegal in all but the most exceptional circumstances. However, the potency of nuclear deterrent theory, coupled with a judicial reticence to pronounce on controversial questions, is likely to preclude an explicit ban for at least the foreseeable future.

 

The Trial of Dominic Ongwen

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It was the LRA who abducted and killed people in northern Uganda, and I am one of the people against whom the LRA committed atrocities.

On a crisp morning, in early December 2016, Dominic Ongwen rose to his feet at the International Criminal Court (ICC) in the Hague. He spoke the above words before pleading not guilty to 70 counts of war crimes and crimes against humanity.

The laundry list of accusations levelled against him include murder, enslavement, cruel treatment of civilians and the use of children under the age of 15 to participate actively in hostilities. It is this final charge which makes Dominic Ongwen unique. As Kasande and Ladisch explain:

Ongwen … is the first person facing trial at the ICC for crimes of which he was also a victim.

Background

Born in Acholiland, northern Uganda, Ongwen entered a country riven with deep ethnic and sectarian divides. In 1985, a coup d’êtat, the fourth since Ongwen’s birth, resulted in the overthrow of the first president also to hail from Acholiland. His demise was at the hands of Yoweri Musevini, who took up the mantle of President of Uganda.

This coup acted as a catalyst, galvanising Joseph Kony along with thousands of rebel fighters across the region. In 1988 they established the Lord’s Resistance Army (LRA). Its purpose was to wage an armed rebellion against the Musevini administration. The LRA became notorious for its brutality: from the “deliberate targeting of civilians” to the plundering of villages they passed through as they swept across 5 African nations. It was perhaps most well-known for the abduction of some 30,000 children over the last 30-years. Male abductees were taught to fight as soldiers in their LRA: their initiation a brutal cocktail of military training and indoctrination.

At the tender age of 10 years old, Ongwen was abducted by the LRA. His destiny, he was told, was to fight for the rights of the Acholi people. A witness explained to Erin K. Baines, Professor at the Liu Institute for Global Issues, that when he was taken Ongwen was “so small he had to be carried for the first few days by other captives”.

He soon found his feet, however. Ascending through the ranks of the organisation, Dominic Ongwen ultimately became a high-ranking commander. The testimony of survivors and other LRA fighters indicates that he was directly involved in some of the worst atrocities to hit the region, including the Makombo massacre which left 340 civilians dead. In 2005, a warrant for his arrest was sealed by judges at the ICC.

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Trial

Dominic Ongwen eventually fled the regime in 2014, as Kony began demoting and executing his own troops. He entered the Central African Republic (CAR) where he ultimately handed himself over to Séléka rebels. They transferred him to the United States who passed him on to the Hague.

At an early hearing, and drawing the Pre-Trial Chamber’s attention to their client’s tumultuous past, the defence team attempted to argue that the case should be dismissed on the basis that the accused should benefit from “international legal protection” as a child soldier himself.  The Chamber stated, tersely, that the argument was “entirely without legal basis“.

Alternatively, the accused argued that the case should be dismissed by virtue of the fact that, as a child soldier, he was under duress when he committed the crimes with which he was charged. The Pre-Trial Chamber gave this argument short shrift because, crucially, to succeed on a defence of duress the accused must not cause greater harm than the harm that they seek to avoid. This was clearly not made out on the evidence before the Chamber.

His status as a former-child soldier, therefore, does not exonerate him. However, it will be open to the defence team to rely on it as a significant mitigating factor, if he is ultimately convicted.

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Trust Fund for Victims – Uganda

Looking Forward

While some might argue that putting him on trial is an exercise in selective justice, the buck must stop somewhere. Dominic Ongwen was a child when he was abducted, but he soon became an adult and made choices which others did not. He ascended into the ranks of the LRA High Command, instead of fleeing the organisation. He allegedly ordered the rape and pillage of hundreds of villages across Africa and despite – or perhaps because of – his past he is charged with recruiting thousands of child soldiers. It is right that he be tried for those crimes.

It should be born in mind, however, that if he is convicted punitive measures are just one aspect of international criminal justice – an aspect which is arguably of marginal importance to those affected by crimes on such a massive scale. More crucial is Article 79 of the Rome Statute. It establishes an arm of the Court known as the Trust Fund for Victims (TFV).

The TFV is funded by a mixture of forfeitures of property post-conviction, fines and voluntary contributions. It has a dual mandate which enables it to provide:

1. ‘assistance’ to individuals in countries blighted by war, but without the need for an individual to have been convicted; and

2. ‘reparations’ which embellish the assistance provided with a symbolic element as these are ordered only once an individual has been convicted of a crime.

Combining the two mandates, the TFV has so far benefitted over 56,000 victims of crime. It is thanks, in part, to this mechanism that the ICC stands, today, at the forefront of transitional justice.

To take the case of Thomas Lubanga as an example: he too was convicted, in 2012, of enlisting and conscripting children under the age of 15. After his trial, the TFV set to work devising a reparations plan. The process, which took several years, involved consulting with various stakeholders. Around 40% of those consulted were children, including former child soldiers. This victim-centric approach resulted in a plan involving the rehabilitation of former child soldiers and their families in the Democratic Republic of the Congo (DRC). The ICC approved the plan last year.

If Dominic Ongwen is guilty as charged, his conviction would offer Uganda, for the first time, a comprehensive reparations programme. It is for this reason that for many victims, whose lives were torn asunder by the actions of the LRA, reparations alone will be the “sign of a successful trial”. A reparations package focused principally on the rehabilitation of former child soldiers would also resonate far more deeply in light of the accused’s tragic past – symbolising the end of a vicious cycle which has seen countless children turned into perpetrators of the very crimes which cost them their innocence.

Explainer: The Cryogenic Freezing Case

(Photo credit: Detroit Metro Times)

Mr Justice Peter Jackson was praised earlier this year for being the first judge to use an emoji in a judgement. In what has been lauded as an “exemplary instance of plain English”, Peter Jackson J explained in simple terms why two children, aged 10 and 12, could only have limited contact with their mother. She was a Muslim convert who had intended to spirit them away to Syria.

Just yesterday Peter Jackson J managed to cut a mass of complex issues down to size yet again in the case of JS v M and F. The case concerned the dying wish of a young girl known only as JS. For our purposes, I will give her the name Julie. Julie was 14 years old and had an aggressive form of cancer. Her wish was to be cryogenically frozen upon death. In her own words:

I have been asked to explain why I want this unusual thing done. I’m only 14 years old and I don’t want to die, but I know I am going to. I think being cryo-preserved gives me a chance to be cured and woken up, even in hundreds of years’ time. I don’t want to be buried underground. I want to live and live longer and I think that in the future they might find a cure for my cancer and wake me up. I want to have this chance. This is my wish.

Her solicitors described her as bright and intelligent and her mother and maternal grandparents supported her decision – having cobbled together the sum of £37,000 to allow Julie to have her body frozen.

The process involves the body being injected with a number of chemicals designed to preserve vital organs. The body is ultimately lowered into a tank of liquid nitrogen and kept at -196C. The merits of the process are, according to many in the scientific community, questionable.

Julie’s father, with whom she had an acrimonious relationship for reasons unexplained, was hesitant about her desire to have her body frozen. In what makes for upsetting reading, the father explains that if she were to be brought back in “say 200 years, she may not find any relative [sic] and she might not remember things and she may be left in a desperate situation given that she is only 14 years old and will be in the United States.”

Despite the father’s misgivings, the judge decided the case in Julie’s favour. He made four rulings:

  1. Granting the mother permission to make arrangements for the preservation of Julie’s body;

  2. Prohibiting the father from interfering in any way;

  3. Appointing the mother – upon death – as the sole administrator of her daughter’s estate; and

  4. Ordering the disclosure of the papers to the Human Tissue Authority.

In giving judgement for Julie, Peter Jackson J made it abundantly clear that his rationale for allowing the application and adjudicating on issues which would arise after death was because they would have a very real impact on the welfare – under English law and Article 8 of the European Convention on Human Rights (the right to a private and family life) – of Julie while she was still alive. 

He made clear that the decision was not about the merits of cryogenic preservation, nor did it set a precedent for future cases of this kind. Quite the contrary. The judge highlights that the NHS Trust was uneasy about the way in which the American company dealt with the process. This was perhaps why he made the fourth ruling: that the papers be disclosed to the Human Tissue Authority. He adds at the close of his judgement that “the events in this case suggest the need for proper regulation of cryonic preservation in this country”.

It is clear from the above that this decision was about nothing more than the right of a child to die in the knowledge that her one remaining wish would be fulfilled. No precedents were set and the ethics and merits of cryogenic freezing were left well alone. The judgement itself stands as yet another exemplary instance of plain English and it demonstrates, clearly, the paramount importance of the welfare of children under English law.   

Opinion: The Grave Human Cost of the Financial War on Terror

Photo Credit: Telegraph

[P]roscribed groups in those areas … are the gatekeepers. How can we go through the gatekeepers to reach the neediest people in Syria [or] Somalia?

Above are the words of Dr Hany El-Banna, Chairman of the Muslim Charities Forum, giving evidence to a Parliamentary Joint Committee. Dr El-Banna’s concern lies with the UK’s “monstrously” broad Terrorism Act 2000, sections 16 and 17 of which criminalise the making of “money or other property” available to a group when the provider “knows or has reasonable cause to suspect that it will or may be used for the purposes of terrorism”. In other words, recklessly or unintentionally providing money or property to terrorists can result in you being labelled a supporter of terrorism. The label comes packaged with a potential 14 years behind bars.

The UK is not alone. As the rubble of the World Trade Centre smouldered, the United Nations Security Council was drafting Resolution 1373 (2001). Once enacted, it required all member states to criminalise, among other things, the financing of terrorism. There have since been numerous resolutions which have galvanised states around the issue and the hawkish gaze of the Financial Action Task Force continues to put pressure on nations to indict the financiers of terror.

As a result, the vast majority of states have now updated their criminal codes and/or ratified the UN Terrorist Financing Convention.

The Problem

While the rationale underpinning these provisions is to starve terrorist groups of financial resources, the unfortunate side-effect of casting the net so widely is that we risk literally starving the civilians under the control of terrorist groups.

Take the Islamic State as an example. We are continually disgusted by their senseless campaign of violence against people both within and outwith the territories of Iraq and Syria. As such, we rightly label them a terrorist organisation. However, the Islamic State is simultaneously a party to an armed conflict. The large swathes of territory which it controls still contain civilians like you and I. Recently, the UN Secretary General estimated that around 13.5 million of those civilians are in need of humanitarian aid.

Unfortunately, aid workers are growing increasingly wary of working in areas under the control of groups like the Islamic State due to stringent counterterrorism laws which are often coupled with extraterritorial jurisdiction – meaning that one state can prosecute you for crimes committed abroad. Similarly, the European Union is currently finalising a Directive which, if implemented, will oblige all member states to couple their terrorism financing provisions with extraterritorial jurisdiction.

One of the key problems, identified by Dr El Banna (above), is that aid workers may have to pay fees to armed terrorists at checkpoints to access civilians. In so doing, they risk being prosecuted. In fact, Lord Ashton recently confirmed the UK Government’s position that paying gate-keepers is criminal.

Tip of the Iceberg

Many countries, like the United States, go much further. They criminalise the provision of ‘material support’ to terrorists. This is defined extremely broadly and the US Supreme Court made clear that even advising members of such groups about how to negotiate peaceful agreements or engage in political advocacy could constitute a criminal offence.

What this means is that actively trying to prevent terrorist violence by talking to fighters and negotiating peacefully might just land you in jail.  In a study I worked on I found that a number of European nations already have ‘material support’ provisions. Perhaps even more worryingly, the EU Draft Directive mentioned above also seeks to oblige all member states to criminalise providing ‘material support’ to terrorist groups.  

As a result of decisions and provisions like these, Ben Emmerson QC recently found that many charitable organisations have started to self-censor and avoid areas under the control of armed groups. In his words, ‘material support’ provisions are having a “chilling effect on NGO operations”.

What makes this something of a catch-22 situation is that the criminalisation of real terrorist financing is an obvious necessity. This was clearly demonstrated, in 2013, when a Birmingham-based terror cell sought to use money raised under the guise of charity to design an attack based on the 2005 London bus bombings. Again, in the UK this year, an individual was convicted for raising money for terrorists via Twitter.

However, these cases have resulted in a global push to tighten the noose around the neck of legitimate charities looking to inject aid into crisis zones – charities now at risk of being unfairly labelled supporters of terrorism.

Balancing Act

From the above it should have become clear that a careful balance needs to be struck between suppressing actual terrorist financing and permitting principled humanitarianism. When money and other forms of aid are being injected into areas under the control of an armed group, lawmakers must accept that the accrual of some benefit to the association is inevitable. Equally, humanitarian workers must accept that the rules governing charities are often flouted by terrorist groups looking to covertly raise money for malicious organisations.

In seeking to reach an acceptable compromise between security and humanitarianism there are a number of options open to legislators. They could create a provision allowing for a judge to assess the status of a group before criminality can arise; or mimic the criminal codes of Australia, New Zealand and Sweden, all of which provide an exemption for humanitarian action. Additionally, proof of specific intention – rather than negligence or recklessness – to participate in a criminal act could be required to support a conviction. Finally, a requirement that use actually be made of the ‘material support’ to commit an offence would prevent peaceful political advocacy and nominal fees being considered criminal.

All of the above are viable and states which criminalise the financing of terrorism should reform their laws swiftly, before more civilians – involuntarily placed under the tyranny of criminals – are left to starve.