Middlesex University School of Law
PhD Seminar
3-4 May 2018
ABSTRACTS
The self-represented accused and the right to be equal before domestic and international criminal courts: a struggle between right of defence and interests of justice?
Elena Borsacchi
Abstract to follow
Terrorism and contagion theory:examining the influence of ISIS on Boko Haram (2012-2014)
Rafael Ejime
Terrorism is not novel and has become ubiquitous in the present global dispensation. It has also become communicable and contagious in recent years. To assess this phenomenon, two very active terrorist groups operating in different geographical locations, Boko Haram (BH) and the Islamic State of Iraq and Syria (ISIS), will be used. This is to identify the influence and communicable effects of terrorism from the latter on the former. The existence of BH has largely been identified as a result of economic poverty, mass unemployment, religious ideology and marginalisation (relative deprivation). This studyaims to examine the similarities that exist between BH and ISIS with a bid to understand if the insurgency of BH in Nigeria is a result of just these socio-economic and political factors prevalent in the country or also of imitation from other terrorist groups (‘contagion’/’copycat’ terrorism). Qualitative analysis of transcripts from these terrorist groups’ public statements and online magazines with computer-aided analysis software will be undertaken. A careful comparison of both terrorist groups shows that both groups have similar aims and objectives which include the establishment of an Islamic Caliphate run by Islamic laws. Preliminary studies conclude that terrorism is communicable as though BH began may have been established as a non-violent group based on the socio-political and economic situations (internal factors) existent in Nigeria. The group later began to morph and imitate the activities, actions and rhetoric of ISIS, even growing into the deadliest terrorist group of 2014.
The right to conscientious objection to compulsory military conscription: from the Universal Declaration of Human Rights to the right to peace
Francesca Gallelli
During the drafting of the UDHR, it was suggested that the right to freedom of conscience could include a clause for protecting conscientious objectors to compulsory military service. However, the discussion remained marginal and eventually the proposal was explicitly rejected when the International Covenant on Civil and Political Rights (ICCPR) was adopted. It was only in 2012 that the ICCPR Committee (CCPR) recognised the existence of the right to conscientious objection in Atasoy and Sarkut v. Turkey. The presentation analyses the historical evolution of the right, ultimately observing that it is a highly controversial one with a very narrow scope of application.
Such analysis finds that the resistance with which the recognition of the right would be met was notably due to the concern that a similar entitlement could be claimed in other instances of legal obligations conflicting with individual beliefs. Therefore, the research highlights that, faced with the challenge of justifying the uniqueness of the right to conscientious objection to military service within freedom of conscience (Article 18), the CCPR grounded its legal reasoning in the close relationship that the right has with the right to life. Indeed, it is here concluded that, according to the CCPR’s current interpretation, the right seems to protect only those individuals that base their objection on a refusal to kill. This jurisprudence remains, however, controversial, the Committee’s minority still holding that deriving the right from Article 18 is mistaken. Finally, the paper examines the merits of the unsuccessful attempt to incorporate the right in the Declaration on the Right to Peace (2016).
The study concludes that, although the jurisprudence of the CCPR has not been unanimously accepted, the right to conscientious objection to military conscription is an outstanding example of the living character of the International Bill of Rights.
Lèse-majesté: A brief history
Aytekin Kaan Kurtul
This presentation is about the history of a crime that has been largely neglected by the scholars of freedom of expression: Lèse-majesté, or seditious libel. The question it seeks to address is the raison d’être of the crime; that is, its perceived necessity in criminal law despite the evolution of society, the public sphere and the social construct that is the State. For that reason, the presentation dwells on the origins of the crime in Western legal tradition and its progress throughout the centuries.
Therefore, the first part of the presentation contemplates the Roman roots of ‘violating majesty’: Its roots in the Tribune of the Plebs of Republican Rome, Augustus Caesar and the Lex Julia Maiestate and finally its codification in the Corpus Juris Civilis in the time of the Byzantine Empire. The Roman connection is then linked to Medieval times and to the nascent trend of constitutional monarchies after the late 17th century. The second part, on the other hand, connects historical examples to current examples from both constitutional monarchies and republics, the latter of which have heads of state who are also political figures. Finally, the third part frames the current examples within the context of international human rights law and underscores the lack of research as well as the consistent defence of political speech by the European Court of Human Rights in this particular framework.
In conclusion, the presentation provides a ‘milder’ background for a barely charted area under the topic of freedom of expression by establishing the customary elements in its application so as to establish the basis of a much needed debate on criminal law and international human rights law.
The inadmissibility of non-Indonesian citizens in judicial review before the Indonesian Constitutional Court
Bayu Mahendra
The Constitutional Court of Indonesia, in its judgment No 2-3/PUU—V/2007, ruled that non-Indonesian citizens have no legal standing to file judicial review before the Court. In determining the legal standing, the Court rejected the applicants’ constitutional loss which should actually serve as the substantial examination in judicial review, and rather addressed this question on the basis of applicants’ citizenship instead.
This inadmissibility ruling raises questions about what legal standing actually means in the context of judicial review under Indonesian law. This paper reviews the Court’s consideration in determining legal standing status and examines the future legal consequences of such inadmissibility. It concludes that the Court’s reasoning has abandoned so-called constitutional loss as the substance in determining legal standing. Consequently, non-Indonesian citizens will never be recognized in the judicial review mechanism before the Indonesian Constitutional Court.
Violence against women in Pakistan:exploring NGO and institutionalpractice
Azhar Mahmood
Statistics suggest that violence against women (VAW) has no borders and that around one third of women worldwide experience some form of violence during their lifetime. My research is seeking to understand the phenomenon of Pakistani NGOs, their services and relationships with government in the context of VAW. Government institutions are also considered in this regard. For this purpose, qualitative research methods and exploratory approaches have been used. Purposeful sampling was used to prepare a list of NGOs and government institutions from the cities of Lahore and Islamabad that work on women issues. Interviews with officials of NGOs and government institutions have been conducted using a semi-structured interview guide.
The key findings show that in terms of VAW, Pakistani NGOs cannot be categorized because they do not fall under a uniform organizational and legal framework. A few similarities are found in the methods of delivering the services and type of beneficiaries. However, significant dissimilarities are found in the types of services, roles, and links of these organizations and government institutions with other organizations as well as between themselves. Due to working with different goals and strategies, NGOs have previously had confrontational relationships with the government that has been evolved in the time-periods of different governments (post-independence to the present); however, these are now being converted into more co-operative relations in which NGOs may be better able to represent the issues of women to the government in an apt manner.
Against ‘atrocity crimes’
Stefano Marinelli
The expression Atrocity Crimes generally encompasses the international crimes of genocide, crimes against humanity and war crimes. David Scheffer[1] first proposed the definition of Atrocity Crimes, with the purpose ‘to simplify and yet render more accurate both public dialogue and legal terminology describing genocide and other atrocity crimes’. The term is now widely accepted among international law scholars. The UN Office on Genocide Prevention and the Responsibility to Protect[2] also adopted the expression in its Framework of Analysis for Atrocity Crimes: A Tool for Prevention.International Criminal Law, in contrast, maintains the traditional definitions of international crimes. The Statutes of the International Criminal Court and of the other ad hoc tribunals do not mention ‘Atrocity Crimes’, and the expression does not appear in their jurisprudence. This presentation investigates the reasons for the semantic discrepancy, and the possible legal consequences it could have on international criminal law and on ius ad bellum.
Partial compliance with European Court of Human Rights judgments: status quo in the South Caucasus member states?
Ramute Remezaite
This presentation derives from research on compliance with judgments of the European Court of Human Rights (ECtHR) in the South Caucasus states (Armenia, Azerbaijan and Georgia) as states that joined the Council of Europe (CoE) during the latter’s enlargement process after the collapse of the Soviet Union. As the states’ absolute obligation to abide by ECtHR judgments has been increasingly compromised by their selective approach to implementation measures, often resulting in slow, lengthy, delayed or even contested compliance with ECtHR judgments, the research analyses factors that explain such behaviour.
The presentation will present research findings that partial compliance is a very likely form of compliance in the South Caucasus states, and discuss the factors that explain such a status quo. The research suggests that some of the factors are particularly distinctive to states that joined the CoE after the collapse of the Soviet Union, which continue to display various vulnerabilities in the areas of human rights, the rule of law and democracy. This, in turn, has serious implications to the whole European human rights system and its ability to ensure that the states’ commitments to the CoE are effectively respected.
Domestic abuse among British-Muslims: a socio-legal examination
Dr Islam Uddin
Existing literature report that domestic abuse is a gendered crime; in the majority of cases, the victims are women, and statistics show that one in four women in England and Wales will suffer from domestic violence in their lifetimes. They also show that on average, the police receive calls for domestic abuse every 30 seconds. There are criminal and civil remedies for victims of domestic violence, and coercive and controlling behaviour is an offence under Section 76 of the Serious Crime Act 2015. Others contend that in tackling domestic abuse, women of colour may not approach outside assistance, and view services as unavailable or not culturally competent to deal with their situation; furthermore, cultural and religious norms, gendered roles and family primacy shape women’s response and avoid outside interference.
The paper draws on empirical data from a phenomenological study of marriage and divorce among British-Muslims. The research identified several ethnoreligious factors that influenced the perpetration of domestic abuse and hindered women from seeking help and assistance. It suggests solutions to the problem, rooted in an introspective evaluation of practices with the Muslim community and examination of the ‘law in context’.
1
[1]David Scheffer, ‘Genocide and Atrocity Crimes’, (2006) 1 Genocide Studies and Prevention 229.
[2] United Nations Office on Genocide Prevention and the Responsibility to Protect, Framework of Analysis for Atrocity Crimes, aTool for Prevention, NewYork:United Nations,2014.