Collection of bodies in Mosul: An act of revenge, humanity – or both?

Sroor Al-HosayniKatharine Fortin

Last week, I listened to a podcast in NPR’s Rough Translation series that wason collecting the dead in Mosul, Iraq in 2018. The podcast is about Sroor Al-Hosayni, a 23 year old Iraqi woman who heads a team of volunteers who remove dead bodies from the rubble of Mosul, eight months after the city was liberated from its occupation by the Islamic State (IS/ISIS). Fascinated, I did more digging on the internet and found that Sroor’s work as a ‘body-collector’ has also been covered by the BBC and VICE news. In this post, I use these sources to recount the main parts of Sroor’s role as a ‘body collector’ and show how her story brings to light a set of rules in international humanitarian law (IHL) on ‘the collection of the dead’ that rarely get any attention in academic writings. Sroor’s story vividly illustrates the necessity of the rule that parties to an armed conflict should search for and collect the bodies of the dead ‘without distinction’ i.e. without taking account of their affiliation. The fact that Sroor gets into trouble with the authorities for collecting IS bodies evidences wider trends of counter-terrorism legislation impeding humanitarian action. Sroor’s story also illustrates the danger that the unsupervised removal of bodies may not only pose a health and security risk, but may also interfere with the gathering of forensic evidence needed in war crimes prosecution

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Artificial intelligence in courts: A (legal) introduction to the Robot Judge

2548749Stefan PhilipsenErlis Themeli

The exercise of government power is increasingly automated. Modern technology makes it possible to reduce the direct human involvement in a great variety of government domains. Human involvement in domains like tax and social security is already limited to the most complex cases. One of the questions this development raises is whether artificial intelligence (AI) will also impact other branches of government, besides the executive. Last month the Estonian ministry of Justice ordered the design of a ‘Robot Judge’ to help the judiciary fight backlogs in the Estonian small claims procedure. And as futuristic as a ‘Robot Judge’ may sound, the Estonian efforts do not stand alone. Also in the Netherlands, the use of AI by the judiciary is on the political agenda. This makes sense since the use of AI by the judiciary holds many promises. Procedures are expected to be cheaper, faster, and less biased. However there are, as with the automation of executive government decisions, also concerns. In this blog we give a short introduction to the development of the Robot Judge.

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The Two-Way Street Between Law and Social Psychology

                                                                                         Kees van den Bos

Blog KeesInsight into social psychology is relevant for the understanding of how the law works in courtrooms, how people perceive the law as a legal system, and how officials function in several legal contexts, such as in the areas of legal decision making, law making, and law enforcement. In other words, social psychology is needed to understand how the law works (or law in action). Furthermore, in part because both social psychology and law share an emphasis on behavioural regulation, notions about how the law should work (or law in the books) can also profit from an understanding of basic principles of social psychology. Importantly, insights into the social psychology of law are not merely an application of basic social psychological principles in legal contexts. Rather, studying social psychology and the law often provides insights that may well feed into basic social psychological research. Thus, both law and social psychology can learn from each other. In this blog I reflect on the two-way street between law and social psychology.

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Egenberger and Bauer: The EU Charter as a source of rights and obligations for individuals

EU flag Individual-i.svg

Sim Haket

The Egenberger and Bauer judgments concern what has been described as probably the most important development in EU fundamental rights law in a long time (Sarmiento): establishing the horizontal direct effect of some of the provisions of the EU Charter of Fundamental Rights (Charter). The Bauer judgment also established the duty of consistent interpretation in relation to the Charter. Despite the clear terms of the judgments, the role played by individuals as either beneficiaries or addressees of the Charter is worthy of further reflection; is the Charter a direct source of rights and obligations in disputes between individuals? I first discuss in a more general way the remedies of direct effect and consistent interpretation in EU law before I turn to the Egenberger and Bauer judgments and their meaning for consistent interpretation and in particular the direct effect of the Charter in disputes between individuals. Continue reading

Protecting the rule of law by European Courts – which way to go?

blog Janneke ECHRBlog Janneke CJEUJanneke Gerards

The rule of law is under pressure in many States. In recent times, for example, Hungary and Poland have been severely criticised for changes they have made to their systems that undermine judicial impartiality and independence. Moreover, in several States, the pluriformity of the media is under pressure, the role of civil society is threatened, and the fundamental rights of minorities and asylum seekers are breached. These are all worrisome signs of the erosion of democracy and the rule of law in Europe. An important question is what can be done to stop this process of erosion and protect the values underlying the rule of law? Of course, political mechanisms can be used, but people and institutions also increasingly turn to supranational courts such as the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (ECJ). For example, in Hungary, the number of applications lodged at the ECtHR concerning rule of law issues has surged, and in Poland, both the Supreme Court and other Polish courts have brought rule of law issues to the ECJ’s attention. From a strategic perspective, the question can be asked whether it makes a difference for those who want to be involved in this type of litigation to address either the ECtHR or the ECJ with rule of law concerns?This post argues that it does, because of the differences in procedure and approach taken by the two European Courts. Continue reading

Independence and autonomy: the parallel worlds of courts and public agencies

scale blog fransFrans van Dijk

Courts and public agencies are developing in their own way under different pressures, but their paths seem to converge. For the judiciary the key issue is independence; in public agencies it is all about autonomy. These two concepts derive from different perspectives, but are very similar in their consequences for governance. This was one of the conclusions of the workshop on independence in the public sector, which was hosted by the Montaigne Centre and RENFORCE and jointly organised with ACTORE, the Jean Monnet Centre of Excellence of the University of Antwerp on Friday 16 November 2018. Comparing judicial systems with modern agencies, my conclusion is that many judiciaries are governance wise in suspended animation: judicial organisations are generally out-dated, but cannot be changed because of the fear of the other state powers of losing control over the judiciary. Continue reading

Using Guarantees of Non-Repetition to (Re)Frame Police Reforms

blog brianne

Brianne McGonigle Leyh

(The below blog is based on a draft article presented at the conference ‘Guarantees of Non-Recurrence: Transformative Police Reform’ on 5 November 2018 in Utrecht, the Netherlands)

Countries around the world grapple with how to address excessive police violence that violates human rights. For decades, scholars and practitioners have stressed the importance of establishing better relationships between police and the communities they serve and have adopted various ways to bring about real police reform that fosters relationships of trust. Community policing, democratic policing, and problem-oriented policing are some of the ways in which police have sought to make this change. At the international level, Security Sector Reform (SSR) is the umbrella term used to describe reform programmes adopted in States where the security sector (namely the military, police, gendarmes, and militias) has become a source of insecurity. The current view of SSR is that it must be a transformative process built upon human security and democratic governance. Human security demands that the interests of the individual, rather than the State, should dictate security policy (Ball 2010). Democratic governance requires respect for human rights, rule of law and adherence to principles such as inclusiveness, transparency and accountability (OECD DAC 2005). The transformation of the security system requires all of relevant actors (police, politicians and civil society) to work together. Yet, whether in Ferguson, USA, Paris, France or Nairobi, Kenya, the gaps between the idealistic rhetoric and harsh realities of police/security practice are significant. As noted by Ball and Hendrickson, much of the work concerning police reform is ‘misleadingly optimistic about the prospects for change’ (p. 104). The consensus among scholars and practitioners is that SSR, and police reform in particular, has been extremely difficult to implement in large part because of mistrust, lack of accountability, and susceptibility to corruption. Given the slow progress on police reform initiatives, it may be useful to look to distinct but relevant fields to (re)frame police reforms. Guarantees of non-repetition (or non-recurrence as it is also referred to) from the post-conflict peacebuilding field offer a normative institutional policy framework built around human rights standards and State responsibility that could potentially shift the rhetoric to focus on State obligations that are context-driven. The language of and programming falling under guarantees of non-repetition could prove useful when addressing police reform; noting, however, that the success of any reform policy is ‘directly proportional’ to the State and communities’ enthusiasm for it (p. 35). Continue reading

The mysterious appeal of the Universal Declaration of Human Rights

Barbara Oomen

Afb blog Barbara

If there is one issue that, as a human rights scholar, has puzzled me for years it is the continued popularity of the UN 1948 Universal Declaration of Human Rights (UDHR). Permanently referring back to the UDHR, it seems to me, is like continuing to use an old Nokia when the Iphone X has just come out. Legally, we have come so far since that first non-binding Declaration stating 30 rights and the underlying principles. A Declaration, not a Treaty. An act of engagement, but not the actual marriage contract – as our colleague Fried van Hoof liked to put it. Ever since 1948, we’ve carefully and painstakingly constructed a whole architecture of binding treaties, monitoring bodies, special rapporteurs, and regional courts. Why do we continue to dig beneath all of that to draw attention to the foundation of human rights instead of simply focusing on the whole shiny construction? Continue reading

Process-based fundamental rights review: what about the applicant?

L.M. (Leonie) Huijbers

Afb blog Leonie

What if you see a runaway train moving toward five people tied-up on a track. Would you pull a lever to redirect the train to another track? Yes, of course. No doubt about it. But what if there was another person tied-up on the other track? The decision whether to pull the handle or not becomes inevitably harder. This famous philosophical conundrum applies in a similar, yet – fortunately – less gruesome way, to the European Court of Human Rights. The backlog in cases, the failure of states to implement the Court’s judgments, the increasingly harsh (political) criticism on the Court, and the shortage of resources have put a strain on the proper functioning of the European Convention on Human Rights’ system. This has given rise to the question of whether the Court should continue to provide justice to each applicant, possibly at the cost of the Convention system (track one), or whether it should focus on providing general justice, by ensuring justice for as many individuals as possible, even when it may come at the cost of the applicants before the Court (track two). This dilemma between individual and general justice is also relevant for the Court’s recent procedural turn… Continue reading

The Rome Statute at 20 Years: Exploring Intersections of Law and Culture at the International Criminal Court

Julie Fraser & Brianne McGonigle Leyh

ICC logoOn 17 July 2018, the Rome Statute (RS) creating the International Criminal Court (ICC) celebrated its 20th anniversary. The ICC is a permanent court that investigates serious international crimes including genocide, crimes against humanity, and war crimes, and prosecutes individuals believed to be most responsible. In this way, the ICC promotes the rule of law internationally and seeks to end impunity for the most heinous crimes. The Statute’s agreement was a remarkable achievement many decades in the making. In the last 20 years, the ICC has grown from small beginnings into a fully-fledged court of international law. Progress has not, however, always been smooth, with many issues and obstacles arising, including in relation to culture. While international law (including international criminal law) is typically portrayed as objective and not limited or bound by a particular culture, as revealed especially in practice, law and culture cannot be so clinically separated. Culture influences our view of the law, of the facts to which it applies, and the fairness of any outcome. From the substantive charges and their defences to the scope and content of reparations and the operation of the criminal process, the impact of culture can be problematic given the nature and context of the ICC’s work. And, yet, culture and the ICC has not been comprehensively addressed in scholarship. Continue reading