By: Asaf Lubin (JSD candidate, Yale Law School and Robert L. Bernstein International Human Rights Fellow with Privacy International) and Ira Ryk-Lakhman (PhD student and teaching fellow, UCL).    

Us and Jessup: Asaf and Ira participated in Jessup as competitors for the same team (2010/11); we coached several teams (Asaf, Yale and Hebrew University teams in 2012 and 2015 respectively; Ira, UCL for 2014-16); Asaf also served as the Israeli national administrator of the Jessup in 2014, and he is the author of the 2016 Jessup problem; we both have been judging national and international Jessup rounds for some years.

September 12, 2016 marked a long anticipated day that will forever change the law school experience for scores of students worldwide. With no exaggeration, it was a day when thousands of law students, practitioners, and academics all looked to one place: the website of the International Law Student Association (ILSA). This is because it was the day ILSA, who organizes the Philip C. Jessup International Law Moot Court Competition, released the 2016/17 Jessup problem, also known as the Compromis.

For readers who have been living under a rock, a quick recap of the competition might be in order. The Jessup Competition, often addressed by this mononym, much like Plato or Madonna, is actually named after former ICJ judge (1960-1969), diplomat, and scholar, Philip Caryl Jessup. The competition offers a simulation of a fictional dispute between countries as it unfolds in a case before the International Court of Justice (ICJ). Very few people know that Jessup actually first originated as a friendly advocacy competition between the American JD and foreign LLM students at Harvard Law School in 1960. The competition then expended to other American schools in 1963, eventually opening its doors to foreign teams in 1968. Today more than 550 law schools worldwide participate in the Jessup, representing more than 87 countries. Each team is comprised of between 2-5 participants, with flocks more faculty, practitioners, and alumni providing additional support. These tireless FoJs (Friends of the Jessup) as they are called, take the roles of coaches, advisors, judges, and administrators, and truly are the heart of what makes the Jessup a community. The authors of this post wish to clarify, at this time, that they are lucky enough to be part of this community, and while biased, consider it to be one of their most prized achievements.

Jessup has truly become a brand in and of itself, and the mere title of a “Jessup competitor” probably gleams more about a person than what may be learned from just going over his or her CV. Nonetheless, as the new academic year just welcomed thousands of new law students, many of whom have probably never heard of the Jessup, we thought it would be useful to provide a more extended explanation as to why we feel everyone should get involved with the Jessup at some point in his or her legal education or later career. This is especially important for us to share, given the concern many students have raised in the past, that Jessup involves an exorbitant commitment of time, and might be difficult to do while maintaining good standing in one’s general law school course work. We thus developed this list which we call the “25 Reasons Why All Law Students Should Participate in the Jessup Competition” and we hope that by the end of it, you too will become Jessup enthusiasts.

1. Starting from the Compromis. Each year the Jessup problem puts forth cutting edge, avant-garde and mostly unresolved legal challenges to its participants. More often than not, the legal questions presented by the Jessup case involve issues that had never been adjudicated by the ICJ. In certain scenarios, the case precedes the actual adjudication of an innovative and largely contested legal issue. In other times, it gives an opportunity to test out what such adjudication might look like, surrounding issues that due to their political volatility, might never find their way to the halls of the principal judicial organ of the United Nations.

To illustrate, recent Jessup cases addressed competing sovereignty claims over islands (2009/10), the legality of targeted killings and limitations on the right to wear religious head-scarves (2010/11), recognition of governments and the protection of cultural heritage sites in times of war (2011/2012), the legal status of climate refugees (2012/2013), use of force in the EEZ and the status of artificial islands (2013/2014), the contested annexation of territory à la the Crimean peninsula (2014/15), and the international law surrounding espionage and low level cyber-attacks (2015/16). This year is no exception as it remains as topical, focusing on such issues as illicit transfer of cultural property, transboundary aquifers, the law surrounding the right to water, and what happens when arguable violations of this right generate refugee outflows.

2. The Jessup case normally comprises several interwoven fields of international law, thus allowing participants to broaden their knowledge and research and familiarize themselves with materials that very well may not be taught in their law faculties or offered as part of their regular curriculum. Previous Jessup problems presented a complex mix of sub-fields of international law including admissibility, standing, and jurisdiction issues before international fora; the treatment of evidence and questions of burden of proof at the ICJ; the interrelationship between international human rights law and international humanitarian law; investment law; environmental law; the law of the sea; international criminal law; treaty law; state responsibility; and many, many, many more.

3. Thus, Jessup is not just a good practice for properly analyzing and applying lex lata sources and well-established principles and rules; it rather requires participants to apply public international law theories to real life fact patterns. It forces a large number of talented scholars to tackle head-on politically charged issues through legal reasoning. In that regard Jessup plays its own unique role in further developing international law, through the cultivation of a legal discourse where one was perhaps missing. Many participants and faculty rely on their experiences and research during the Jessup year to then produce notes, articles, and blog posts, that further broaden the academic literature surrounding the topics covered in the case. Indeed if you fact-check us, you would find that many doctrinal contributions originated during or developed subsequently to Jessup.

4. Jessup is all about the research, with students spending months painstakingly perfecting their written briefs, mastering old case studies, and new legal theories. There is absolutely nothing quite like the Jessup, in terms of allowing students to develop their legal research and analytical skills. The Jessup Bench Memorandum (an addendum, never shared with participants, which provides judges with a basic core “check-list” of the legal answers to the case) often reflects just a mere fraction of the knowledge and research conducted by the participants. In fact, the Bench Memorandum doesn’t begin to touch the surface of what students come up with in their independent research. Judges are often amazed at the level of in-depth analysis and archival work that certain teams produce. Accordingly, Jessup offers knowledge that no classroom experience, in any taught degree, is ever capable of guaranteeing.

5. The Competition is built so as to enable participants to dedicate a substantive amount of time for such autodidactic research. From the moment the case was released on September 12^th, until 13 January 2017, when the written memorials will be due (and thereafter until the regional and national rounds), teams and competitors will work thoroughly and mostly independently on mastering the law. You will discover by the end of the Jessup that you have learned incredibly more about the law, from researching it on your own and teaching it to your colleagues, than you would ever do from reading another textbook in a black-letter class.

6. Importantly, because Jessup is the most prestigious international law moot court competition today, it truly is the best place to study public international law. Where else will you learn how to identify a customary rule, or carefully interpret and parcel together treaty provisions? Where else will you be called to memorize entire sections of the U.N. Charter, or cite minority opinions of ICJ judges? In fact, Jessup is the only place where students are called to examine the lax lata in view of the lex feranda, to engage both the law as it stands with the law as it ought to be. Students are called to apply not only black letter law but also advocate for a position based on policy considerations and their extrinsic rationales. A Jessup competitor thus learns not only to think like a lawyer, but to think like a policy maker – taking into account the ramifications of his argument on the public world order. The student thus learns how to plead for a State, and not just a client.

 

 

7. The result is that students participating in the Jessup become some of the more well-versed scholars on the law in their respected research area. Trust us, if you compete in the Jessup this year, there will be very few people on the planet that will know the law and practice surrounding UNESCO’s List of World Heritage in Danger or the Convention on the Law of Non-Navigational Uses of International Watercourses, better than you will come April. Sounds hard to believe? Try it and see for yourself.

It often happened, in fact, that government ministries sought to reach out to Jessup students precisely due to their newfound expertise. The authors of this blog can attest to this. Following our completion of the Jessup, with the case that year involving the IHL obligation to investigate and compensate for violations, we were approached by a Commission of Inquiry which was working in Israel on drafting a report surrounding the same exact issues. Jessup fiction and real-life events intertwined once more, and we as former participants were better off for it.

8. Of course, working for the Government is not the only venue by which participants can put their Jessup research into good use. Many Jessup participants have proceeded to engage with the legal issues posed by the Compromis as LLM, PhD, and JSD students, writing their master’s thesis and dissertations on the very questions they have encountered in the long months of the Jessup. Others proceeded to practice international law in various prestigious law firms or international organizations and some became academics who research international law. And there are those who have done all the above.

9. The structure of the Competition requires each team to submit very detailed written arguments (the Memorials) for both the Applicant and Respondent. These written briefs are limited in terms of their space, given strict word count requirements, as well as in terms of their timeframe, with students being required to submit them by early January. It is the nature of the Jessup that each issue can be argued a hundred different ways, yet a written memorial only allows for so many words, and so teams debate each other in an attempt to sharpen their briefs and reach an agreed upon structure. Accordingly, law students have the opportunity to practice some of the most important lawyering skills – meeting deadlines, developing concise legal writing, and choosing between various authorities and legal arguments.

To be sure, these briefs are worth 3 round points (out of a maximum 9), and on many occasions can determine the faith of a round. Notably, technical mistakes, in terms of style and structure, can result in penalties, forcing students to be extremely diligent in their drafting and editing. Law students thus learn the importance of the written pleadings, by putting an emphasis not only on substance, but also on procedural requirements.

10. At the regional, national, and international rounds, students are required to develop a 45 minutes oral presentation of their claims. Teams are asked to argue their issues in a crisp, structured, and persuasive manner, while citing authorities for each of their points. You can wake up any past Jessup participant in the middle of the night and he will be able to read to you, out of memory, not only the opening and closing of his oral argument but also the wording of Article 38 of the ICJ Statute. And as the old saying goes – “the paper does not refuse the ink” (but an oral argument at the Jessup might). Indeed, once teams delve into their briefs and commence preparations for the oral rounds, they quickly identify the weaker points of their argumentation and come up with ways to sharpen their contentions. Thus, while many moots emphasize advocacy, debating, or writing skills, Jessup stresses all and more while teaching participants the fine arts of litigation.

11. In fact, there is no other international moot that teaches students the difficult skills of oral advocacy. Teams are required to make their legal claims under strict time restrictions (with a bailiff raising time cards and imposing the time limitations), while answering questions being fired at them by feisty benches of Jessup judges (in fact, it is a trademark of Jessup, which the authors of this post are proud to have in common). Students learn how to eloquently answer legal questions, how to roadmap their arguments, and how to properly address the Court.

12. Jessup is not only about law and legal pleadings; it is also about tactics and strategy which are very much embedded in litigation work. Competitors learn how to politely correct a Judge who got a fact wrong (and when for strategic reasons choose not to correct him). They learn when it is better to take a question and address it on the spot, or when to ask the bench to hold with you as you are “just getting there.” Students learn when to skip an issue, or concede a point, and how to quickly bounce between alternative arguments. More importantly they learn how to read a bench of judges and develop tools to get the bench to empathize with them as advocates. All in all, Jessup offers participants the opportunity to master an expanded list of priceless oratory skills, which are useful for law students both during their studies and in their later practice.

13. To win the Jessup it is not enough to just ‘know the law and facts and apply the former to the latter in an accurate way’. After all, law is not an exact science, and the work of trial attorneys is different than that of a laboratory technician or a mathematician. Indeed scientists rely on postulations and previous theories. Jessup competitors, on the contrary, often have little-to-nothing to go on. Put differently, a team may discover that no exact specific case ever touched upon the issue they’re researching, and that no particular treaty administers the remedy sought after, and that merely a handful of papers were ever written on their question (and even they don’t agree on a single point). And yet… it is in this vacuum that best legal analysis develops. The fact that there is not enough black-letter law on many of the Jessup issues, forces students to rely heavily on legal rationales and policy considerations to support their claims. Participants are pressured to learn how to derive rules from divergent cases and how to distinguish authorities by their unique particularities. Students in the process draw inspiration from historical examples, academic theories, general principles of law, the values of the international community, the writings of legal philosophers, and the memoires of international jurists and scholars. This kind of creative critical thinking is absolutely invaluable.

 

 

14. As any litigator will tell you, even more important than the legal rationales, is an overarching narrative that the advocate is trying to get across to the Judges. Jessup participants learn that in order to argue their case effectively, they must also learn how to convincingly frame the factual-matrix. Participants in the Jessup become story-tellers and truly develop the skills of weaving facts and law to form a persuading account backed by proper legal authorities. This type of skill is extremely useful for anyone who later engages in public speaking, legal or otherwise.

15. The final element of the oral rounds is the rebuttal and surrebuttal. Most teams would agree that this is the hardest piece to master. No one rebuttal is like the other, and respondent teams get between one and three minutes to figure out how to rebut the rebuttal as they are literally listening to it for the very first time. You may call it “thinking on your feet”, we consider it to be the epitome of legal advocacy; and the winner takes it all. The authors of this post have seen many rounds that were won solely on the basis of a powerful rebuttal or surrebuttal.

16. You can’t do Jessup alone. There is a reason why the Jessup rules do not permit a one-man-show whereby a single team-member comprises of the team. In fact, even teams of two members are extremely rear. Most times teams will be composed of four and five members, forcing students to work together. Whether you’re good at it or not, you are required to learn how to be “a team player”, as a successful Jessup team is as good as its weakest link. Teams eat together, sleep together, research together, argue together, strategize together, fight together, and make up together. The number of romantic relationships that were launched thanks to the Jessup is matched only by the number of romantic relationships that ended as a result of it. Whether you may like them on a given day or not, as a participant in Jessup, you will soon learn that your best friends from law school are those who have shared Jessup with you. Two examples come to mind: there is the case of the two members that literally became one (Grigory Vaypan & Aleksandra Ivlieva, who got married shortly after they won the Jessup together); and there is the case of the two Jessup authors who became three, giving birth to their child, who was born, of course, during the international rounds. Overall Jessup is a bit like Nokia, connecting people, in various aspects.

17. But to achieve success, it is not only about working with your cohort of people. Jessup also stands for continuously opening doors for new members and new interactions. First, Jessup will help you to get to know your colleagues, from your own law school. The Competition is open to law students (JD and LLB) as well as to graduate and post graduate law students (LLM, MSL, PhD, and JSD), as long as the specific competitor in question has not engaged in legal practice (see 2017 rules on eligibility). Thus, a team may well comprise a combination of JD, LLM, and PhD students who do not study together, or a team of law students from different years at the same law school. In many respects “seniority” in law school, does not play a role in Jessup; for example a first-year law student may very well do better than an LLM candidate.

18. Second, Jessup continuously expands its arms to include new teams from different parts of the world. This particularly concerns areas of the world where there might not exist sufficient opportunities for legal writing and research. Last year involved teams from such a diverse list of countries as Afghanistan, Palestine, Venezuela, Uzbekistan, Vietnam, Sri Lanka, Ghana, Macau, Kosovo, Kazakhstan, and Gambia, just to name a few.

19. The competition not only brings teams and universities from all over the world to the same place, it actually brings people together. It is in the Jessup international rounds where you may see teams from two States who do not share diplomatic relations, or even may not recognize each other, working side by side in a pleasant open and friendly all-welcoming environment. For some teams, Jessup may be the first time they left their home town, their country, or met someone who speaks a different language. Awards such as the “spirit of the Jessup” which was created in 1996 “to recognize the Team that best exemplifies the Jessup spirit of camaraderie, academic excellence, competitiveness, and appreciation of fellow competitors,” and is selected by a vote of the Teams participating at the international rounds – has been a visible way of acknowledging the competition’s commitment to these values. To learn more about the tolerance and acceptance Jessup stands for and witness the battle of some Jessup teams at the international rounds, we urge you to watch “All Rise”, an award winning documentary filmed during the 2013/14 Jessup rounds. We guarantee that the trailer alone is enough to make you want to watch the rest, let alone participate in the competition for yourself.

20. More so, as a truly international competition, the state of origin of the competitors is truly hidden from the Judges and ILSA tries to promote an equality of arms amongst teams, who obviously come from different jurisdictions and have diverging levels of access to academic resources. As Judges in the competition, both authors of this post can attest that we never really know who argues before us. We sometime attempt to guess based on accents or certain court mannerisms, but we know that we are doomed to fail. Similarly, all teams are subjected to the same rules and deadlines. All of them receive the Comprimis at the same date and submit their written memorials by exactly the same time. They are all privy to certain batches of resources provided by the compromis authors to assist researching teams, and may be further assisted by ILSA in cases where their library has limited resources available. They engage the same legal questions, are prohibited from sharing or discussing their research with other teams, and are called to abide by the same rules of anonymity (see rule 2.17 of the rules of the competition). It is thus not surprising, that non-English speaking countries hold some of the more impressive track-records in Jessup, and one can only turn to last year’s champions, the team members of the Universidad de Buenos Aires of Argentina.

 

 

21. Due to the diverse nature of the competition, Jessup also offers a unique chance to interact and network with law students, practitioners, and academics from all over the world. In other words, Jessup enables law students to meet their future colleagues and learn from them about possible career and educational paths and opportunities. The most incredible thing at the Jessup is to see a participant engaging in a conversation with the very scholars whom they have cited in their briefs. Let’s just say that a full blown international law nerdapalooza soon ensues.

22. The fact that Jessup has been sponsored by some of the biggest law firms in the world (Shearman & Sterling and White & Case to name a few) as well as by top Chambers and practices in each of the various participating jurisdictions, who seek to recruit successful participants – is highly indicative of the skills required for the competition and its perceived status.

23. If your law school days are long behind you, and you did not participate in the Jessup when you could, please don’t get disheartned – that absolutely does not mean that you can’t get involved now. Every year ILSA looks for new members to join its ranks as advisors, coaches, administrators, volunteers, memorial graders, Compromis authors, and round judges. You will grow through the process, learning the materials with the students you coach or advise and shaping the future of the international legal profession. In fact, one of the authors of this post changed her career completely after judging the DC international rounds. Careful now, Jessup makes you rethink things.

24. Combined together Jessup helps form a community of international legal scholars who share a vision for the world and an interest in its further development. This group of exceptional individuals, whom you gain the privilege of calling your colleagues, friends, mentors, and drinking buddies, all continue on to do incredible work worldwide.

25. Jessup has a history that spans nearly 60 years, which means that thousands of highly qualified lawyers and academics are amongst its alumni. It is thus not surprising that many current and former judges and justices on national and international instances have been involved in Jessup. It is also not surprising that some of the leading partners at law firms and other leading practitioners competed in Jessup at one point or another. Similarly you will find former Jessup participants as politicians and businesspeople, and in your law school at least one of your lecturers (probably your favorite one) will too hold fond memories of his or her Jessup glory days.

So please get involved with the Jessup, find out whether your school already has an established team and see what you need to do to join it ranks. If it doesn’t – start one on your own with the assistance of ILSA. If you are already a lawyer or scholar, get involved with the competition as a coach, advisor, judge, or administrator. This competition can only grow on the basis of the commitment, dedication, and hard work of those who support it and its values. It falls on all of us to do just that.

By Alexander Shea (Barrister in Training; MPhil International Relations, Oxford; BA History, LSE First Class Hons)

Last October (14 October 2015), a ‘Negligence and Damages’ Bill was introduced into Parliament. A Private Members’ Bill (PMB) sponsored by the backbench Labour MP, Andy McDonald, the Bill challenges an entrenched hierarchy in the law whereby damages for physical injury inflicted through the negligence of a third party are easier to obtain than if those injuries are psychological.

In challenging this hierarchy, the Bill reflects changing attitudes towards mental health in Britain. A 2015 survey of 1,734 adults conducted by the King’s College London Institute for Psychiatry, Psychology and Neuroscience in conjunction with the mental health charity MIND, found that ninety-one percent of Brits agree that mental illness merits increased recognition within society. British workers are also now more willing than before to disclose their own mental health conditions. As documented in The Department for Health’s annual Health Survey England report, a report that interviews ten thousand Britons each year to identify changes to their lifestyle and outlook on health, between 2003 and 2008 alone the prevailing attitude toward mental illness amongst the British populace reversed course. Whereas in 2003, respondents suggested that the overwhelming stigma attached to mental health meant they would be likely to ‘hide away’ any problems they might have, by 2008 respondents argued that they were increasingly expressing feelings attached to even low and moderate stress with friends and family. This change in attitude was seen amongst individuals from a variety of occupational sectors, from teachers to bankers, right through to the military.

Despite these changes, a historical lag exists between evolving social attitudes and case law. Whilst attitudes toward mental health are changing on a yearly basis, the referent point underpinning the law’s approach to psychological injury is still found in 1989 and the events of Hillsborough (the ‘Hillsborough Disaster’; see here for additional background). The Hillsborough Disaster refers to the event of 15 April 1989 when a human crush occurred in the Leppings Lane stand of Hillsborough Stadium in Sheffield, during an F.A. Cup  semi-final  between Liverpool and Nottingham Forest. The events resulted in 96 fatalities and over 760 injured.

Hillsborough was the worst disaster in British sporting history. It was also an event, however, that brought to a head a series of social tensions then at work within Britain- tensions that drove to the heart of mental health’s status under the law and made Hillsborough a key event in determining legal precedent. To understand this, it is important to appreciate that the aftermath of Hillsborough was played out amongst society in an acutely psychological fashion as a clash of competing media narratives and accusations. The visceral imagery, stories and trauma of the day became the subject of an acrimonious debate between the South Yorkshire Police Force, which suggested that the footage and photographs of the day indicated that drunken, ticketless fans were responsible for the crush, and the victims and their families who countered that the evidence pointed to police negligence as precipitating the crush. Hillsborough now a public scandal and with the Taylor Inquiry of 1990 broadcasting to the nation haunting stills, photographs and witness testimony of the day, the mental trauma of Hillsborough as an event rather than a mere site of physical injury became apparent to all.

As the Taylor Inquiry soon laid bare that it was police negligence that triggered the crush, and worse that the police had orchestrated a cover-up to conceal their responsibility for events and shift the blame onto football supporters, the police was encouraged to issue an apology. The Taylor Inquiry noted that the police’s position had exacerbated the mental suffering of survivors and families in both demonising Liverpool fans and denying the police’s own role in events.

Hillsborough is remembered primarily for the physical injuries it saw. Often overlooked, however, is that it also inflicted psychological damage. Family members who were seated in different sections of the stadium to their loved ones watched helplessly as the crush developed in the lower tier of the Leppings Lane stand. Broadcast live on television and radio, the trauma was transmitted directly to thousands who had family at the game. Hours after waving away family members, next of kin identified their bodies.

Many witnesses to such events developed post-traumatic stress disorder (PTSD). This PTSD was not always the result of being overwhelmed by one exceptionally traumatic event, such as identifying a loved one’s body. For many, the trauma accumulated in more gradual fashion, consequent, for example, to the daily moral attrition of coming home each night to a newly-handicapped spouse.

Hillsborough thus lay at the intersection of three developments that made the question of mental injury central to any legal analysis of it. First, the event itself was lived as a traumatic event of visceral images and sounds by those who witnessed it. Second, it was processed in a uniquely psychological manner in a clash of media narratives centred around claims of drunken, thuggish football fans. Third, it evolved at a time when mental illness was receiving increasing consideration under the law. Following Parliament’s passing of the 1974 Jurors Act and the 1983 Mental Health Act, English and Welsh common law was forced to consider mental illness as a legal category unto itself that would require its own set of case law. Hillsborough thus came at a time of ‘legal awakening’ with regard to mental illness, even if the courts’ first judgements in this area were not particularly liberal. These three developments combined, Hillsborough was to be a seminal event in legal history, the moment when case law would have to confront the question of psychiatric injury.

In the 1991 case of Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5, ten claimants sought damages for the mental injuries they incurred following Hillsborough. They made their claims as ‘secondary victims’ of that day’s event. None had been present in pens 3 and 4 of the Leppings Lane stand where the crush occurred. Their relation to the event was thus not primary, in that they were not the ones in imminent danger of being crushed. Instead they were indirect victims. Their injury was the result of processing the harm that had been inflicted on their loved ones.

Two of the claimants were at the match.  Both suffered emotional distress after seeing the crush from adjacent stands whilst knowing their brothers were in the Leppings Lower. Another claimant fell ill after identifying her son’s body just eight hours after watching him leave home. Further claimants were traumatised via television or radio, mediums that conveyed the danger their loved ones were in.

The claims of all ten were dismissed. To understand why is to understand the anachronism of today’s case law.

Providing judgement, Lord Oliver outlined four cumulative criterion that set an extremely high benchmark for any claim to succeed. Termed the ‘Alcock Principles’, to qualify for damages, a victim of mental injury sustained after witnessing harm brought upon a loved one through the negligence of a third party must:

1. Have a relationship of love and affection with the primary victim
2. Have direct perception of the event with unaided senses
3. Have proximity to the event or its immediate aftermath
4. Experience psychological injury via a single nervous shock.

“A relationship of love and affection” was presumed to exist only between parent and child and spouses.  Claimants who lost siblings, grandchildren, or others therefore were excluded.

The second clause disqualified the witnessing of events via television or radio. The UKHL judges argued that experiencing events in this mediated fashion was less traumatic as it encouraged disassociation.

‘Direct perception of the event’ meant the claimant must have actually seen their family member be injured amongst the crowd. Witnessing a crush and presuming a loved one was injured was not enough.

The third criterion reinforced the ruling’s restrictive ethos. Proximity was whether one’s injury occurred close enough in time to the event, to be determined arbitrarily by the judges. The eight hours that expired before the mother identified her son were deemed excessive.

This may appear rather odd to the layman.  When the Hillsborough Disaster is referred to as an ‘event,’ what comes to mind is a chain of developments that progressed inexorably from one to another. The massing of fans prior to kick-off, the scrambling over fencing for survival, family members arriving at mortuaries – all these constitute a single time-lapse of eight to ten hours that we consider to represent a discrete event.

In contrast, the judges interpreted the notion of an ‘event’ rather differently. Rather than accept that an event could refer to a series of interconnected developments that spun over a number of hours, the judges argued that an event could only ever refer to a single incident that occurred at a single moment in time and which must be isolated from the developments that preceded and followed it.  The judges limited police liability solely to the exact moment when the trampling of bodies occurred. Where this is the elucidation of ‘event’, damages would be awarded only to those whose psychological injuries happened at this precise time.  This excluded victims whose mental injury was sustained cumulatively. As Lord Oliver noted in his judgement, excluded was:

“psychiatric illness caused by the accumulation of gradual assaults on the nervous system.”

Often, psychological injury, its ‘flashbacks’ and symptoms only emerge cumulatively months after the event at a pace the patient can tolerate. Alcock therefore advanced a legally neat principle. But it is one that is discriminatory.

Furthermore, experiencing an event via radio or television does not safeguard from mental illness. As Amit Pinchevski notes in a 2015 article, we have known since the 1960’s that individuals develop PTSD via broadcasts. Jennifer Ahern has documented the thousands of cases of PTSD amongst those who watched 9/11 on television. Similarly, drone pilots (operators) whose active participation of the battlefield is mediated by screens nevertheless develop intense trauma (see more on this point here, here, and here).

Emphasis on direct perception of events is arbitrary. A series of cases such as Wild v Southend NHS Trust (2014) EWHC 4053 (QB) have failed due to the claimants’ trauma stemming from the mental realization of the death of a loved one rather than the direct perceiving of the death itself. In Wild, the claimant’s appeal was dismissed because it was impossible for him to have directly seen the in utero death of his stillborn child. That learning the shocking fact of the death of a loved one- as long as one does not see it- is deemed acceptable by the law is clearly unjust.

The Negligence and Damages Bill provides a corrective to Alcock. The Bill extends the relationships presumed to involve a “close tie of love and affection,” enshrines a duty of care for psychiatric wellbeing covering both sudden and gradual nervous shock and removes the requirement of proximity. However, despite having initially been scheduled to have its second reading debate in Parliament on the 22^nd of January 2016, the Bill has yet to resurface in Parliament.

This is less to do with the Bill’s inadequacies as it is to do with what the chair of the House of Commons’ Procedure Committee, Charles Walker MP, has described as a “corrupt” and “shambolic” system when it comes to hearing Private Members Bills (PMBs) in Parliament. Walker has described how ’98 percent’ of PMBs are actually “government handout bills,” outsourced to backbench MPs with full departmental support and the promise of sufficient Parliamentary time so that they reach statute. This allows the government the flexibility to make amendments to its legislative agenda, or disassociate itself from more controversial proposals that it nevertheless wishes to see discussed. The result of such practices, however, is that items such as the Negligence and Damages Bill are pushed down the agenda.  When due to reappear in Parliament on the 22^nd of January, the Bill was listed behind eight other PMBs that were accorded priority over it. The result was there was little chance that the Bill’s second reading would be heard. The identical scenario produced itself on the 16^th of April 2016 when the Bill was once again up for second reading. The 2015-2016 parliamentary year thus reached its end without the Bill receiving a ‘carry over’ motion for it to continue to receive consideration in the 2016-2017 sitting. For all intents and purposes therefore, the Bill has been shelved.

Theresa May has promised a government that will work not for the few, but for the many. Changes in public attitudes towards the mentally ill mean that the latter are no longer treated as a group apart from society, but rather as an increasingly recognised part of the body politic. If May really wishes to lay claim to the social interventionist legacy of the Victorian reformer Joseph Chamberlain, she would be well advised to address one of the law’s most entrenched injustices. It is time that the mentally injured are recognised by our courts.

 

  By Luis F. Viveros, Teaching Fellow and PhD Candidate at UCL

“They’ll be back. Shame has bad memory.” (Gabriel García Márquez, La Mala Hora)

I have chosen the general title of this series to be ‘Peace Against Humanity’. The series will consist of three deliveries, the purpose of which is to provide analysis about the on-going peace process in Colombia. The analysis will focus on issues related to transitional justice (TJ), international human rights law (IHRL), and international criminal law (ICL). This is the first in the series of forthcoming posts about Colombia’s ongoing peace process with the Revolutionary Armed Forces of Colombia (Spanish: Fuerzas Armadas Revolucionarias de Colombia). FARC, as this group is more commonly referred to, is a Marxist guerrilla organisation, and one of the main parties to Colombia’s decades-long internal armed conflict. The Council on Foreign Relations, an independent, nonpartisan membership organization and think tank, estimates that the Colombian conflict has thus far resulted in over 200,000 fatal victims, some 25,000 disappeared individuals, and nearly 5.7 million victims of internal displacement.

On 24 August 2016 it was announced that, after almost five years of negotiations, Colombia’s government and the FARC reached a deal to end their decades-old confrontation. The full text of the agreement has been released and a plebiscite on the accord will take place on 2 October 2016. This post argues that any TJ scheme needs to be justified from the definitional traits of that concept, and that the Colombian deal subverts the rationale of TJ. Concretely, it is maintained that some aspects of the deal do not conform to the logic of necessity underpinning the exceptional nature of measures undertaken in order to achieve TJ’s ends: democracy, the rule of law and respect for human rights.

The Rationale of Transitional Justice

According to Teitel TJ is defined as “the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.” The ‘need for political change’ is perhaps the central definitional trait of every TJ scheme, the very thread by which completely dissimilar processes might be characterised as such:

Either political change is thought necessarily to precede the establishment of the rule of law or, conversely, certain legal steps are deemed necessary to precede political transition. The privileging of one developmental sequence or another derives either from disciplinary bias or from the generalization of particular national experiences to universal norms. So it is that in political theory the dominant account of how liberalizing transition occurs comprises a sequence in which political change comes first (Teitel, 2000).

The underlying logic is a simple one: where the existing institutional arrangements of a state are insufficient, exceptional political reform is needed to achieve democracy, ensure the rule of law and respect for human rights.

Political reform materialises in transitional measures. Taking into account that the institutional environment in which transition takes place is always different, then those measures are bound to take very different forms. Thus, it is their characterisation as adequate means to achieve democracy, human rights and the rule of law that connects all those measures under the conceptual umbrella of TJ.

The Nuremberg Trials constituted the first time where an international adjudicative body passed judgment upon, convicted and sentenced (including to capital punishment) those responsible of war crimes and crimes against humanity. Conversely, transitional processes in the Southern Cone of South America, Eastern Europe and Central America focused on amnesties. Within that spectrum there are formulas with emphasis on truth commissions (e.g. South Africa), or watered-down judicial proceedings like the one adopted by Colombia with paramilitary groups. That TJ schemes have dissimilar, and even contradictory emphases, might convey the idea that the process of TJ is nothing but the post-rationalisation of unconnected phenomena. Political reform’s necessity (transitional measures) as means to achieve ends (TJ’s ends) provides an analytical framework capable of overcoming this conceptual challenge.

TJ as necessary political action also provides a standard against which to assess whether particular measures are justified in a given transitional process. This is important because transitional processes are built upon dilemmatic problems far more complex than the binary formulas of conflict/peace or authoritarian regimes/democracy. As Tietel explains:

The central dilemma of transition is how to transform a society that has been subjected to illiberal rule and the extent to which this shift is guided by conventional notions of the rule of law and responsibility associated with established democracies. A core tension emerges in the use of law to advance transformation, as opposed to its role in adherence to conventional legality. To what extent is transitional criminal justice conceptualized as extraordinary in the relevant societies or guided by the ordinary rule of law?

This core dilemma implies many others. Who should be held to account and for what offense? Under what legal order? International or national? Military or civilian? These are the dilemmas successor societies struggle with; ultimately […] they commonly strike a transitional compromise, the ‘limited criminal sanction,’ which is, more than anything, a symbolic form of punishment.

“Does Colombia want Peace or Justice?” – under such heading ran a piece in a Colombian news magazine in 2013. This paradoxical statement, which perfectly embodies TJ’s dilemmatic nature, reflects the greatest obstacle to Colombia’s current transitional process. In that sense, polls consistently find both that Colombians support the peace deal, but overwhelmingly reject the lack of effective punishment (imprisonment) to FARC’s leadership. A comprehensive statistical inquiry was conducted by Universidad de los Andes, USAID, and Vanderbilt University, showing in detail how these ‘contradictions’ extended to other areas of the agreement (A graphic overview of the study is available here and the full study can be consulted here.)

There is an inter-temporal dimension to the analysis that can be easily overlooked. Blanket amnesties are inconsistent with IHRL and may prevent states from fulfilling its ICL obligations. Thus, the level of injustice acceptable as a matter of TJ has narrowed over time due to the developments in ICL and IHRL. Still, TJ allows for a wide range of acceptable measures so as to permit each society to design successful transitional schemes. It is within that spectrum of acceptable political reform or action where transitional measures are deemed as necessary. Conversely, political action falling outside that spectrum is at odds with TJ’s ends.

An analysis in those terms matters for Colombia. It provides a framework of social discussion parallel to that focusing on the legality of TJ’s measures as a matter of international law. In that sense, TJ’s language and concepts enable the articulation of policy concerns that in Colombia have been framed within the broad concept of ‘peace’, an aspirational value that sits at the centre of Colombian political and legal narratives. In fact, the Constitution enshrines it as “a right and a duty of mandatory compliance” (Art. 22), and both the accord and the plebiscite establish themselves as means to achieve “stable and enduring peace.”

While international law provides for external limits to TJ, the rationale of necessity of political change constitutes TJ’s internal limits. Besides serving as vehicle for domestic political debate, necessary political reform serves an important purpose in transitional processes: it allows to understand the dilemmas at the centre of transition by explaining how much impunity is acceptable in order to achieve the rule of law.

The FARC-Government Peace Deal in light of Transitional Justice’s Rationale

The FARC is perhaps the most violent of all the groups involved in the decades-long armed conflict in Colombia. FARC resorted to systematic kidnapping of civilians and extortion, in addition to drug trafficking and environmentally-shattering mining, so as to fund its so-called revolution. To illustrate the FARC’s modus operandi and pointedly on the issue of kidnappings, according to the The National Center for Historical Memory (Centro Nacional de la Memoria Histórica), it is responsible for 33-37% of kidnappings out of a total reported of 39.058. Markedly, the US State Department formally deems FARC as a Foreign Terrorist Organization, and Forbes ranks it as the third richest terrorist group in the world (annual turnover USD600 million), trailing only Hamas (2) and Isis (1).

The negotiation with FARC has finally yielded a full accord addressing six issues: (i) integral policies for agricultural development, (ii) political participation, (iii) cease of hostilities, (iv) [eradication of] illicit drugs, (v) victims (i.e. justice), and (vi) a process to hold a plebiscite on the agreement in its entirety. The justice section provides for a sanctions regime that raises serious concerns from a TJ point of view. It is argued that, while there are transitional justice-based reasons for applying a special justice framework, (i) the sanctions regime is inconsistent with the notion of necessary political reform that defines TJ, and (ii) application of the said regime to members of the military responsible for international crimes seriously undermines the TJ goals.

 

(i)   The sanctions regime as incompatible with the rationale of TJ

The Deal establishes a ‘Special Peace Tribunal’ for the purpose of judging crimes perpetrated by all parties to the armed conflict. Subject to corroboration and substantiation, the tribunal has jurisdiction to determine sanctions to be imposed on perpetrators. According to paragraph 60 of the Deal’s justice chapter these sanctions are “effective restrictions to liberty and [other] rights such as freedom of movement and residence deemed as necessary for their execution and to ensure non-repetition.” Although it is not yet clear what these restrictions entail in practice, the same provision clarifies that:

Effective restriction means adequate mechanisms for the supervision and monitoring to ensure compliance in good faith with restrictions ordered by the tribunal […] under no circumstances these should be understood as jail, prison or any other equivalent measure. (emphasis added).

Imprisonment could only be an imposable sanction if an individual fails to fully comply with truth-telling obligations or does not recognise responsibility for all crimes committed. However, the Deal does not establish means to ensure full compliance with those duties. This makes it highly probable that the majority of individuals under the jurisdiction of the Special Peace Tribunal will be subject to mere ‘restrictions’ to liberty as described above.

This sanctions regime raises concerns regarding its consistency with the exceptional character of TJ. Leaving aside concerns from an ICL and IHRL perspective, TJ’s rationale requires that measures are adequate to achieve the rule of law, democracy and human rights. This entails the balancing of different interests at play in the overall justice scheme adopted in the Deal, particularly in terms of truth and justice. The framework, however, disincentivises both truth-telling and justice.

Firstly, truth-telling is discouraged because the Deal does not provide for mechanisms to verify and confirm whether an individual provides a full account of crimes committed. There are already signs that the FARC does not consider itself bound to full truth-telling and unconditional atonement for crimes perpetrated against civilians. In a speech delivered after the Deal was signed in Havana, FARC’s lead negotiator, a.k.a. Ivan Marquez, stated that “in all armed conflicts, especially in long-lasting ones, mistakes are made and the civilian population is involuntarily affected” (emphasis added). Nowhere in that speech did the FARC express its willingness to tell the truth and recognise responsibility for their crimes.

The issue of child soldiers forcibly recruited by FARC provides an additional good example of this point. Although in February 2016 the FARC announced that that they would stop recruiting minors, on 27 August 2016 a.k.a. Jesus Santrich twitted that minors in FARC’s ranks were being held for their own ‘protection’. The US Department of State 2015 Human Rights Report on Colombia concluded that “[t]he FARC and the ELN routinely engaged in forced recruitment of persons under age 18.” Although the report does not provide an exact number of minors in that situation, it reproduces reports “that more than 5,800 children demobilized from illegal armed groups between 1999 and July 2015.” A study by Universidad Sergio Arboleda concluded that around 47% of FARC’s members were forcibly enlisted while still underage. A March 2016 New York Times video-report shows many children in a single FARC camp in an non-designated location, most of them in uniform and heavily armed.

 

 

 

 

 

 

 

 

 

In other words, FARC systematically denies facts regarding the true scope of their responsibility in child recruitment, framing their statements in a manner inconsistent with the responsibility to recognise the crimes committed. Stronger sanctions coupled with effective means of verification of compliance with these obligations might serve as deterrent to this type of conduct. Given that the Deal does not provide for them, the risk exist that this sort of conduct becomes endemic at the implementation stage.

Secondly, justice expectations are watered-down by a sanctions regime, which in practice will put the FARC in better conditions than the current ones. The blanket exclusion of prison or similar sanctions subverts the retributive function of sanctions in the context of serious criminal offences and therefore raises serious legitimacy concerns. In that sense, in terms of sanctions within the Special Peace Jurisdiction, there is no difference as regards responsibility between serious and minor offences.

Further, this system of justice will operate alongside the ordinary Colombian judicial system for many years. This will inevitably result in a situation where the petty criminal will continue being subject to years of imprisonment, while those responsible for war crimes and crimes against humanity will face penalties which, for all practical effects, entail no significant restrictions. In sum, by eliminating imprisonment as an available sanction, the FARC Deal breaches the fundamental principle enshrined in Riggs v. Palmer that “[n]o one shall be permitted to […] take advantage of his own wrong”.

A recent poll suggests that 90% of Colombians reject the idea of FARC’s leadership not serving prison time. But even if all of the above were to be accepted, the question whether the adoption of such sanctions framework is the only means available to achieve the termination of armed confrontation remains. Colombian recent experience suggests that not to be the case. Starting in 2005 Colombia adopted a transitional scheme in a negotiation with a federation paramilitary groups (‘AUC’ for its Spanish acronym) which outmatched FARC in terms of size and influence. That framework, also known as the Justice and Peace Law, required inter alia truth-telling in judicial procedures and reparation to victims. Justice, truth and reparation were balanced in order to justify reduced prison sentences of 5 to 8 years. Non-compliance with full confession obligations resulted in exclusion from the framework. Those excluded were transferred to ordinary criminal courts where prison sentences of up to sixty years can be imposed.

The terms agreed with FARC seem particularly lenient taking into account that this group negotiated in a weaker position in relation to the Government than the AUC did a few years before. The AUC had ample links with influential politicians, had a significantly bigger membership (AUC: 34,000/FARC: 7,000-10,000 members), and the Colombian military had just started to consolidate the results of a huge US-backed military strategy dubbed ‘Plan Colombia’ (Rochlin, 2010). By 2011, when the FARC negotiations were in its preliminary phase, that group’s military capabilities were in a historic low and its morale had been heavily decimated due to successful air raids with US-provided smart bombs. Thus, the statement that the FARC Deal’s sanctions regime was the best attainable transitional measure under the circumstances appears to be unsubstantiated.

 

 

   

 

 

 

 

 

 

(ii) The applicability of benefits to the military subverts TJ’s logic

The applicability of the above described sanctions regime vis-à-vis members of the military is unjustified in the Colombian context owing to the lack of transitional grounds. In the case of FARC and AUC the transitional reason justifying the application of exceptional frameworks is that the state lacked the capabilities to bring those responsible of crimes before existing judicial institutions.

In contrast, members of the military have already been investigated, prosecuted, and tried before independent and impartial tribunals, which ensured victims’ access to justice in terms consistent with IHRL. This is due in part to a series of decisions by the Inter-American Court of Human Rights in cases involving allegations of human rights violations by members of the military. In those cases, the Court held that where allegations of human rights abuse against civilians are at stake, military tribunals lack minimum independence standards necessary to guarantee the victims access to justice.

Getting there was a hard-won victory for human rights advocates in Colombia, and one which has yielded results in terms of effective accountability. As reflected in the ICC’s Report on Preliminary Examination Activities 2015, Colombian judicial authorities have seized jurisdiction from the military justice system in over 3,000 cases, over 800 members of the military have been handed down guilty verdicts coupled with prison sentences of up to 40 years, including “since 2012, one Colonel, two Lieutenant Colonels, nine Majors, six Captains and 35 Lieutenants.”

Further, if the argument for the applicability of the sanctions regime to the military were grounded in the political need of ‘reconciliation’, that too would be unjustified from a TJ perspective. In fact, one reason why amnesties for serious human rights violations have been rejected in Latin-America is the need to strengthen the perception that members of the military do not enjoy privileges for crimes committed in their official capacity.

Historically, it was the common practice of Latin-American dictatorships to enact statutes which effectively amounted to self-amnesties. Similarly, the application of the Peace Deal sanctions regime to members of the military who are being prosecuted or have already been tried and found guilty, will have an effect akin to those of self-amnesties. Those already serving sentences will be freed on time-served grounds, and the retroactive application of the Peace Deal on the basis of the most favourable standard will preclude further action by Colombian criminal courts.

In this case, as in those of the past, society will be stripped of reasonable expectations of truth, retribution and full reparation for crimes committed by members of the military. The only difference is that in Colombia justice was already being made. Garcia Marquez was right, “shame has bad memory.”

 

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