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Death row cases – my experience and how to get involved

Competition for training contracts and pupillages has never been so fierce. Aspiring solicitors and barristers face cut-throat rivalry, not just from fellow vocational course graduates, but from graduates in previous years, whose qualifications remain valid for up to five years. Hence, with demand for positions at an all-time high, becoming a lawyer for a living requires a demonstrated commitment to the law in practice, as well as in theory.

Legal work experience is the key. In the UK, however, opportunities open to students are, for the most part, restricted to passively observing. Such opportunities are undoubtedly valuable, but can hardly be described as work experience. Therefore, aspirants need to get ‘hands-on’ with real cases. For those who can afford to go, there are opportunities for assisting over-burdened lawyers in the United States.

Death penalty cases

Richard Murtagh and Alex Davey protest the execution of Joseph Burns outside Mississippi State Penitentiary in July 2010.

Richard Murtagh and Alex Davey protest the execution of Joseph Burns outside Mississippi State Penitentiary in July 2010.

Richard Murtagh and Alex Davey protest the execution of Joseph Burns outside Mississippi State Penitentiary in July 2010.

One might assume that capital defence work pays handsomely — after all, what could be more demanding than fighting to save the lives of one’s clients?

In reality, though, capital defence lawyers are the poorest paid in the business, earning less, on average, than the UK minimum wage, while resourced by a tiny fraction of the budget that is available to prosecutors. As a result, capital cases tend to attract sub-standard defence lawyers, who know they can get away with shoddy work because society takes the view that their clients are lucky to be represented at all.

There are, however, a small number of dedicated defenders who believe that the law should be faithfully applied, even in cases involving the worst atrocities. These lawyers are the most noble in the US, but with the best will in the world, one lawyer can only be in one place at any one time. Hence, two charities, Amicus and Reprieve, were set up to assist by sending dedicated law students to help. In 2009, I was fortunate to be one of those students.

After attending two training weekends in London, I was sent by Amicus to assist Glenn Swartzfager at the Mississippi Office of Capital Defence Counsel.

Boarding the plane at Heathrow, I expected to be home in three months — the minimum commitment required. Little did I know that, in fact, I had tasted my last cup of Tetley for the next ten months! I funded this time abroad with personal savings and credit. And being a part-time Open University student, I was able to take my legal studies “on the road.”

In a moment, I will discuss three cases that I assisted with. But first, I think it’s important to say a few words about managing expectations.

As a budding practitioner, you may be wondering what an internship would entail for you. The best answer I can give is: it depends. A lot of ground may be skipped by assuming you are a diligent, reliable individual with a knack for legal research and writing. If so, you can improve your odds of getting away from the photocopier occasionally by taking the following three factors into account.

The time of year is important. If you go during the holidays, you may find yourself working alongside other interns — who, like you, will be trying hard to get a taste of real lawyering. As an Open University student, my holiday occurred when most law students are back in class. This made a big difference. Therefore, if possible, I advise going when other students are unable to. A gap year is probably the best way to achieve this.

Execution dates may be relevant. The lawyer I worked for handled post-conviction appeals. I saw how life at an appellate office is quiet until just before a client’s scheduled death… then things become manic. This is when you could be sent to find last-minute witnesses, or asked to conduct research into possible new legal arguments. Texas kills the largest number of inmates per year, but, for this reason, it attracts the largest number of intern applications. Therefore, you may wish to consider a state other than Texas. Of course, if you are placed with a trial lawyer, execution dates will have no bearing on the work you do.

Building trust is essential. The onus is on you to prove that you are reliable. Many prospective interns say the right things to get the placement, but after arriving, a few find their motivation waning unless the lawyer is constantly patting them on the back. Work hard and have faith that your diligence will be noticed.

Lastly, it is worth remembering that even if your whole internship were to be spent at a photocopier, that would still count as ‘paralegal’ work for your CV, not to mention the glowing reference you could expect from a lawyer who had more time to fight for clients because of you.

I was involved in three cases — those of Gerald Holland and Joseph Burns, in which I helped to write clemency petitions (presented to the State Governor after all legal appeals have failed), and the case of Jeffrey Davis, in which I was sent to find mitigation witnesses.

Gerald Holland

Gerald Holland

Gerald Holland

A combination of violent temper, alcoholism and brain damage led Gerald to murder a young girl who stayed at his home. With his execution just weeks away, I was given two issues to investigate.

Firstly, Gerald was pronounced clinically dead at age 13 after falling asleep next to a leaking gas fire. His brain was starved of oxygen for a number of minutes. Tests later found indications of brain dysfunction. The jury was not informed. While brain damage could not excuse what Gerald did, it might have helped the jury to understand why he did it.

Secondly, jurors were overheard making comments which cast a doubt on their ability to decide impartially.

It took two weeks for me and another intern to track-down and interview former jurors, and to research mental deficiency grounds for the clemency petition. The Governor denied it within two hours. Gerald was executed by lethal injection in May 2010.

Joseph Burns

Joseph Burns

Joseph Burns

Joseph was known for being a gentle, compassionate person. Then one day, he was dragged into a bad situation without warning, and his fate was sealed forever.

Joseph stopped at a motel with a friend. The friend proceeded to attack the manager and rob the cash stored in the motel’s money box. The pair fled. Unfortunately, agreeing to accept half of the cash would make Joseph “death eligible” when the manager died from violent injuries, which included stab wounds inflicted by a screwdriver.

Everyone, including the prosecution, accepted that it was the friend’s idea to steal the cash, and everyone agreed that it was the friend who struck the first blow. However, the friend gave evidence against Joseph in return for leniency. After blaming Joseph for most of the violence used, the friend is now enjoying freedom. Joseph was not so fortunate.

The jury that sentenced Joseph to die was given no information about his benevolent past, including that he had three loving daughters who suddenly faced growing up without a dad.

It took two weeks for me and another intern to track-down and interview Joseph’s friends, former lovers and other persons to whom he still mattered greatly (including his three children), and to research/write grounds for the clemency petition. The Governor denied it within two hours. Joseph was executed by lethal injection in July 2010.

Jeffrey Davis

Jeffrey Davis

Jeffrey Davis

When painful events shook his life, Jeffrey resorted to binge drinking and drugs. This tragically culminated in Jeffrey shooting his girlfriend one night, during a drink/drug fuelled argument. Jeffrey fled the scene in her car. The prosecution later argued that this made Jeffrey’s crime a combined murder and robbery, thus making him “death eligible” — even though the car was stolen after the shooting, so the victim’s trauma was made no worse by the theft element.

Within hours, Jeffrey had turned himself in to police. He confessed, claiming to have acted in an altered mental state after injecting cocaine. Jeffrey’s crime shocked the small-town community, who, until then, knew him to be a man of good character.

Twenty years later, I visited his town and was able to gather sworn affidavits from many people who remembered him. A number recalled Jeffrey doing odd jobs for them without pay. Best of all, I found a lady who had worked at the jailhouse where Jeffrey was kept until trial. The lady recalled Jeffrey being allowed out of his cell to wash police cars (which often had guns inside), as well as being trusted to accompany her to the supermarket to help fetch supplies. This proved that Jeffrey could be trusted to serve life in prison, where he would pose no threat to guards or other inmates.

Jeffrey’s death sentence was quashed by the Supreme Court in 2012. He has since accepted an offer of life in prison without possibility of parole.

Want to get involved?

There is information about becoming an intern on the Amicus and Reprieve websites.

Richard Murtagh is an LLM student at the University of Birmingham, he studied his LLB at the Open University.

This article originally appeared in Lawyer2B on 19th August 2014. Available at http://l2b.thelawyer.com/careers/pro-bono/death-row-cases-my-experience-and-how-to-get-involved/3024582.article. It is reproduced with the permission of The Lawyer2B. We are grateful for their support in this.

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Peter Savory’s impressive advocacy style wins OU Law Society second annual moot

Law students from Birmingham, Sussex, Nottingham and beyond met at the University of Law in London on Saturday 16 August to compete in the Open University Law Society’s second annual novice moot.

The students faced a panel of judges including Suzanne Rab, a barrister at Serle Court Chambers, and Open University graduate Rebecca Penfold who is a pupil barrister at Dyers Chambers.

The moot problem concerned the application of s.76 Sexual Offences Act 2003, which states that there is a conclusive presumption of rape where the defendant has impersonated a ‘person known personally’ to the complainant in order to gain their consent.  Students had to argue whether this provision should include a situation where the defendant gains the complainant’s consent by impersonating a celebrity who the complainant is a fan of but does not have a personal relationship with.

After three rounds, Peter Savory, a W200 student from East Sussex, emerged victorious. Peter wowed the judges not just with his legal argument but also his impressive advocacy style.  He wins £25 of Amazon vouchers.

OU Law Society Moot winner 2014 Peter Savoury (centre) with judges Suzanne Rab (left) and Rebecca Penfold (right).

OU Law Society Moot winner 2014 Peter Savoury (centre) with judges Suzanne Rab (left) and Rebecca Penfold (right).

Commenting on his win, Peter said: “Saturday’s competition provided a terrific opportunity to put our legal learning to the test.  I’d like to thank the OU Law Society for organising the event and the judges for their insights and guidance as we progressed through the competition.”

Peter commenced his OU legal studies in 2013, following a long career in the classical music industry.  He has found the structure and flexibility of the course – with its programme of regular tutorials – ideal for someone returning to formal study after such a long break and hopes eventually to make a second career in the law.

The Open University Law Society  run a series of events for OU students throughout the year, including careers talks, mooting workshops and socials.  They also enter teams into external mooting competitions.  In 2013 OULS teams won the ICLR national moot as well as the Lexis Nexis Welsh National mooting competition.  Membership is £5 per year.

OU Law Student of the Year 2013

Southampton law student, Adam Paine, has been named as The Open University Law Student of the Year 2013 at a special event in Westminster.

OU Visiting Professor Cherie Booth (on right) presents OU Law Student of the Year 2013 award to Adam Paine (on left).

OU Visiting Professor Cherie Booth (on right) presents OU Law Student of the Year 2013 award to Adam Paine (on left).

30 year-old Adam Paine was presented with his award for being the highest achieving student of the year. The award was presented by leading barrister, human rights activist and Visiting OU Professor, Cherie Blair CBE QC and Head of The Open University Law School (OULS), Emeritus Professor Geoff Peters.

Adam started studying with The Open University (OU) in 2008, initially with the intention of finishing a degree in Politics, Philosophy and Economics. Adam was working full-time so he valued the ability to study law part-time. As he explains, “It wasn’t an option to study full-time, but I was keen to work towards qualifying as a lawyer as soon as possible as I am always conscious of the fact that I’m starting a career in law quite late compared to many. The OU has a reputation of being the best place for part-time study and the flexibility of the courses meant that I could study two at once during my Bachelor of Laws and finished it about a year earlier than anticipated. This ultimately brings me a year closer to starting work as a lawyer.”

Adam achieved a First Class (Hons) Bachelor of Laws and has now successfully secured a training contract with the Government Legal Service, starting in September 2014. “It’s a fantastic opportunity as it showed me that my route to qualifying as a solicitor is assured – assuming that I don’t mess anything up along the way! The Government Legal Service does a wide variety of unique work so it’s difficult to know what my role will end up being there. Ultimately, I am hoping to use the experience to pursue a judicial appointment, but that’s a long way off.”

Like many OU Law students Adam required dedication and discipline to complete his law degree, often working into the small hours to complete his studies. Adam found that “having regular tutorials was a great way to meet fellow students. It was an enormous help to know that others were in the same position as me, and to commiserate with them about the demands of the course and the dread of the next set of exams!”

Adam doesn’t consider himself a “typical” law student and attributes his academic and professional development to studying with the OULS. “I grew up on council estates, and my parents are not themselves professionals. I am enormously proud and privileged to have had the opportunity to follow my ambition of qualifying as a lawyer. I don’t think it would have been possible without the access to further education that the OULS provides to students.”

Commenting on his award Adam said:

“I’m genuinely surprised to have received the award for Law Student of the Year 2013 because I’ve never considered myself to be an exceptional student. I scraped by in my GCSEs and dropped out of my A-Levels in the second year. Back then, I didn’t consider myself as particularly academic and it was only after enrolling on the Bachelor of Laws that I realised how much I enjoy studying. It’s wonderful to receive an award for working towards something you are so passionate about.”

Reflecting on the evening and when asked what advice she would offer those who are considering and those who are new to the legal profession, Professor Blair said:

“The most important thing for all law students is to focus on achieving an excellent qualification and evidencing your dedication to academic studies and passion for law. I think that The Open University Law School students face a unique challenge: managing the demands of studying law with the pressures of their professional and personal lives in an amazing achievement.

“I would like to congratulate Adam for achieving The Open University Law Student of the Year 2013 and wish him every success in his career in the legal profession.”

Travels with a paper friend

SLSA 2014 at Robert Gordon University, Aberdeen, provided the next leg in the development and the travels of my paper, “Feel your dark way as I lead you, Father”: (re)imagining equity with law using Sophocles’ Theban Plays.  In short: it has come a long way.  The following section lifted from the paper’s abstract tells the story so far:

Using as illustrative Sophocles’ Theban Plays, primarily Oedipus at Colonus, and a psychoanalytic methodology, the following paper will aim to examine aspects of the familial dynamic between equity and law, with the aim of rendering problematic the maxim and embedded perception that “Equity follows the Law”.  Foundational to understanding this dynamic is how the two tenets traverse and negotiate both with one another, with third parties, as well as with the topography in which they operate and perform.

By a long way I’m not merely referring to the refinement of the paper’s core ideas and the structure of its arguments that have been meticulously developed over various iterations, although of course I hope this is the case.  Rather, a long way refers literally and somewhat apologetically to distance.  A short explanation is required…

Having started life on the outskirts of Milton Keynes in the autumn of 2013 the paper’s next stop took it (along with me) to Melbourne, Australia, for a doctoral forum hosted by the generous folk of Melbourne law school.  To be honest the attendees at Melbourne experienced the paper in a very raw state and it became abundantly clear to me following the forum that significant work was required to tighten-up the theory and its application to questions of the law of equity’s relationship to the common law, which I set against the background of (in the main) Sophocles’ Oedipus at Colonus.

Next stop, March 2014 and the neo-classical surroundings of the University of Virginia in Charlottesville, where my dulcet tones echoed through the corridors of power that line that institutions magnificent law school, as I delivered to the keen ears of the audience the paper’s conflation of law, classical drama and psychoanalysis.  After a few months in which I was able to address the concerns Australia had raised, the presentation in Virginia felt on track and the audience response was both encouraging and engaged – equity it seems, at least for some legal scholars, holds a significant place in their psyche, although not always for positive reasons!

And most recently to Aberdeen…for the day.

I thus attach a degree of personal guilt to a paper which I have otherwise enjoyed watching evolve during the last six months, because it has accrued such a substantial carbon footprint.  By my calculation at least 14,726 miles.  It has become imperative therefore to make this paper count, and reactions, albeit to a limited audience in Aberdeen, would suggest it may be reaching a conclusion.

The aim of the paper was neither to invent a new course of dealings between equity and the common law, nor to rewrite history as such – there is no academic validity in either of those.  Rather, by mobilizing the legal imagination via, in this instance literary drama, I want this paper to provide an alternative, critical avenue for those interested in the continuing development of equity, and legal scholars more broadly, to explore.  One which does not accept with any degree of complacency even the most seemingly settled concepts in law such as the equitable maxims.  To that end I am confident this paper has achieved a semblance of this modest task.

The possibility of publication may now be on the horizon.  But I’m not convinced this will signal the end of the line entirely for a paper which has equally become a favoured travel companion.  There are always more devils in the detail to be teased out.  Avanti!

Robert Herian

Lecturer in Law

School of Law, Open University

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2013: The legal year in review

2013 was a seminal year for legal education with the publication of the Legal Education and Training Review. It also saw the unprecedented step of lawyers across the UK refusing to attend court in protest against Government policy, and some ground-breaking new laws.

The Legal Education and Training Review (LETR) was a joint project between the Bar Standards Board, Solicitors Regulation Authority and the Institute of Legal Executives Professional Standards. Its purpose was to review legal education in relation to regulated and non-regulated legal services in England and Wales. The long-awaited LETR report was published in June 2013. Key messages of the report focused on quality and competitiveness, flexibility (including new pathways to qualification), talent management, ethics, new ways of working (including increased focus on workplace learning and the use of technology to delivery education), and the challenges of legal regulation. Three key recommendations were that further research was needed into how the Foundations of Legal Knowledge (the core part of the LLB) should be balanced, that there should be consideration of whether any amendment to those subjects is needed, and that assessment of legal writing, research and reasoning skills should be an integral part of the LLB. As these are important changes it will take time for Law Schools (including the OU Law School) to implement them so there will be no immediate impact on current students.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force in April 2013 introducing substantial changes to the legal aid system in England and Wales, whilst in Scotland the Scottish Civil Justice Council and Criminal Legal Assistance (Scotland) Act 2013 introduced changes to criminal legal aid in Scotland. These changes to legal aid raised substantive concerns about access to justice and led to Scottish lawyers going on strike in 2013 followed by their counterparts in England and Wales in early January 2014.

The UK Parliament had a busy year passing 33 Acts, the most since 2010. Notable Acts include the Marriage (Same Sex Couples) Act 2013 which provides for same sex couples to get married, the Succession to the Crown Act 2013 which provides that succession to the Crown does not depend on gender, the High Speed Rail (Preparation) Act 2013 which gives the Secretary of State extensive spending power in relation to the preparation for HS2 and the Crime and Courts Act 2013 which includes changes to make the recruitment and operation of the judiciary more flexible and open to diversity. There was also extensive discussion surrounding the Draft Voting Eligibility (Prisoners) Bill which is the UK Government response to the ECtHR judgment on prisoner voting.

The legislatures in the devolved nations were also busy. The Scottish Parliament passed 14 Acts, most notably those relating to the 2014 Scottish Independence Referendum and the Land and Buildings Transaction Tax (Scotland) Act 2013 which will replace Stamp Duty Land Tax in Scotland. The National Assembly for Wales made good use of its power to legislate (introduced by the Government of Wales Act 2006) by passing 7 Acts, including the landmark Active Travel (Wales) Act 2013 which will make is easier for people to walk or cycle in Wales. The Northern Ireland Assembly passed 10 Acts, most notably the Criminal Justice (Northern Ireland) Act 2013. Also on constitutional note the date of Scottish Independence referendum was announced as 18th September 2014 and the Scottish Government published Scotland’s Future, its guide to what will happen if Scotland votes ‘Yes’ in the referendum. The Scottish Constitutional Futures Forum has provided extensive academic discussion on the issue of further devolution or independence for Scotland.

There were also some very interesting speeches by judges including Lady Hale on ‘What’s the point of human rights’, Lord Sumption on ‘The Limits of Law’, Lord Mance on ‘The Interface between National and European Law’ and Lord Neuberger on ‘Justice in an Age of Austerity’ as well as many high-profile cases, some setting important precedents or raising issues for further consideration. Also of interest was Prof. Alan Paterson’s lecture on the workings of the Supreme Court.

2013 set the foundations for what we will see in 2014 including potential change not only to the way legal education and training is delivered, but to how legal representation is provided and even potential change to the constitutional make-up of the UK. It will certainly be an interesting year.

Sources of further information / updates
Guardian Law http://www.theguardian.com/law
Times Law http://www.thetimes.co.uk/tto/law/
Law Society of England and Wales http://www.lawsociety.org.uk/
Law Society of Northern Ireland http://www.lawsoc-ni.org/
Law Society of Scotland http://www.lawscot.org.uk/
UK Court and Tribunal Service http://www.justice.gov.uk/about/hmcts
Northern Ireland Court and Tribunal Service http://www.courtsni.gov.uk/en-GB/pages/default.aspx
Scottish Court Service http://www.scotcourts.gov.uk/
UK Supreme Court http://supremecourt.uk/
Judicial Committee of the Privy Council http://www.jcpc.uk/
UK Human Rights Blog http://ukhumanrightsblog.com/

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The (Il)legality of the Use of Force in Syria

The past week has seen a major turn in relation to the ongoing civil war in Syria. Following an attack on civilian population near Damascus, which resulted in over 1400 deaths, allegations have arisen regarding purported use of chemical weapons in the attacks. The alleged use of chemical weapons (in particular sarin) in Syria, triggered off the strong reaction amongst various Western States, led by the US, who called for an urgent need for military intervention in Syria.

Whilst the results of an attack are tragically marked by high levels of human suffering and certainly invite moral considerations of intervention, the legality of a proposed military intervention is questionable.

The use of chemical weapons is prohibited in international law by the Chemical Weapons Convention    1992 (http://www.opcw.org/chemical-weapons-convention/), to which Syria is not a party. This however, does not mean that Syria may ‘get away’ with the use of chemical weapons. The prohibition is well-established under customary international law, especially under customary International Humanitarian Law which absolutely prohibits the use of chemical weapons in armed conflict, both of international and non-international character (see Rule 74, CIHL Study: http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule74, confirmed by the ICTY in Tadic (Jurisdiction) at para.499.). Given that Syria has been involved in non-international armed conflict when the use of chemical weapons took place, such conduct amounts to a breach of IHL. Furthermore, the attack in Damascus amounts to a war crime and crime against humanity, both falling under the jurisdiction of the ICC, and the situation in Syria may be referred to the ICC.

However, what may not be forgotten in the debate on intervention in Syria is that the use of force is prohibited in international law, bar two exceptions: when the use of force is in self-defence or when it is authorised by the UN Security Council under Chapter 7 of the UN Chapter. In context of the current situation in Syria, neither of the exceptions is applicable. The option of humanitarian intervention, alike one in Kosovo in 1999, has also been considered, despite being highly problematic, especially in terms of its compliance with international law.

At the moment of writing (2 September 2013), the military intervention in Syria appears to be illegal under international law, despite convincing political or moral arguments in favour of military action. Finally, what appears to be intriguing is the timing of intervention. The civil war in Syria has been continuing for over 2 years, with reports of killings, inhumane treatment of civilians and multiple human rights abuses (committed by both sides to armed conflict) being featured nearly daily in the world news. However, it appears to be the alleged use of chemical weapons that, once again (cf. intervention in Iraq in 2003) has grasped the attention of international community and motivated its (re)action- results of which are yet to be seen. 

Olga Jurasz

Lecturer in Law

School of Law, Open University

Preventing sexual violence in armed conflict – the role of International Humanitarian Law

War is neither pretty nor fair. It generates human suffering, which is borne primarily by the civilian population, as seen in Syria which, over two years after protests erupted against President Bashar al-Assad, continues to be torn apart by armed conflict.

With rising levels of indiscriminate violence and a death toll of more than 70,000 there is little to distinguish it from a full-scale internal armed conflict. Summary executions, torture, the unlawful targeting of hospitals and medical personnel, and the alleged chemical attack in March are just some of the tragic features of this conflict. But war does not happen in a ‘lawless vacuum’. There is a body of rules designed to regulate conduct in armed conflict and, vitally, to reduce the human cost of war.

International Humanitarian Law (IHL) governs the conduct of armed conflict. It provides protection to civilians and those no longer taking part in hostilities (the wounded and POWs) and strictly prohibits the targeting of civilians. Furthermore, all sides in armed conflict must choose appropriate means and methods of waging war that spare civilian lives. That is what IHL demands of them.

However, applying the principles of IHL has become increasingly difficult on the modern field of battle which today can be in the street, a market place and homes – all far removed from the understanding of conventional warfare as waged when the four Geneva Conventions were adopted in 1949 (followed by two additional protocols in 1977).

As of 2011, 194 States have ratified the four Geneva Conventions making them universally applicable. Although Syria is not a party to Additional Protocol II, it remains bound by the Common Article 3 to all four Geneva Conventions 1949 which specifically regulates protection of victims in non-international armed conflict. Article 3 sets out fundamental rules applicable to situations of non-international armed conflict which prohibit the vast majority of acts happening in Syria today.

While how war is waged has dramatically changed over the past 50 years, one of the oldest and most brutal weapons of war, rape and other forms of sexual violence continues to be employed in conflict. IHL specifically prohibits rape and other forms of sexual violence both in international and internal armed conflicts. Following its use during the Arab Spring, reports from Syria, including the Report of the independent international commission of inquiry on the Syrian Arab Republic confirm the widespread use of sexual violence. However, incidents of sexual violence often go under-reported by victims because of the social stigma and a culture of silence in relation to rape and other forms of sexual violence which still persist in many societies.

Preventing sexual violence in armed conflict was a key topic during the G8 Foreign Ministers’ Meeting earlier in April 2013. UK Foreign Secretary William Hague, who launched an initiative on Preventing Sexual Violence in Conflict in May 2012, said: “Our goal must be a world in which it is inconceivable, that thousands of women, children and men can be raped in the course of a conflict because international framework of deterrence and accountability makes it impossible”.

Notwithstanding the Foreign Secretary’s view, IHL remains clear about the prohibition on rape and other forms of sexual violence in international and internal armed conflicts. Indeed, for the past few decades nothing has changed in terms of the core rules of IHL. These rules applied during conflicts in the Former Yugoslavia, Rwanda and the DRC, all marked by exceptionally high levels of sexual violence. The only thing that has changed is a curious shift in political agendas, which has once again refreshed the long-running debate about the need to eradicate the use of sexual violence as a weapon of war, and not the international legal framework surrounding armed conflict.

Nonetheless, more than 60 years since the four Geneva Conventions were created, 15 years since the first successful prosecution by an international criminal tribunal of rape and a few UN Security Council Resolutions later, sexual violence in armed conflicts, including in Syria, continues to occur.

Does this mean that IHL is out of date and unfit to protect the victims of modern armed conflict? I do not think so. The rules of IHL are simple and clear, they prohibit the killing of civilians, torture as well as outrages upon personal dignity and rape. However, these violations continue as many of the perpetrators think they will go unpunished. This is despite the two decades of major developments in the field of international criminal law, which resulted in successful prosecution of perpetrators of war crimes, crimes against humanity and genocide at international level. During that time, rape and other forms of sexual violence were also successfully prosecuted by international criminal tribunals.

What is the way forward? The challenge lies in implementing and enforcing these rules by all parties involved in armed conflict. In the context of modern, asymmetrical warfare engaging in a dialogue with States as well as non-state participants seems the best way forward. But how and where does one begin to engage with these active participants in modern armed conflict, especially with non-state actors? And, more crucially, how does one convince them to obey the rules of IHL?

It is complex question and, to an extent, a political hot potato which requires resources, specialist staff, commitment and time. Lack of political will to comply with the principles of IHL is not an uncommon challenge. Furthermore, the practical difficulties involved in such a project should not be underestimated. After all, guerrilla fighters or other armed groups do not have offices in New York or Geneva and may not be easily convinced to engage in dialogue about the respect for IHL.

More than 60 years ago, the renowned international legal scholar Sir Hersch Lauterpacht, noted: “If international law is at the vanishing point of law, the law of war is at the vanishing point of international law”. Looking at the situation in Syria today, Lauterpacht’s observation might still appear valid. However, it is difficult to picture what modern warfare would look like without IHL – presumably even more gruesome, violent and destructive than it currently is.

Instead of demeaning the value of IHL, perhaps it is more important to focus the discussion on how to improve its enforcement in the 21st century. More effort and willpower is certainly needed to nurture respect for IHL amongst all parties to modern armed conflict. IHL is far from being outdated as some people may suggest.

Olga Jurasz
Lecturer in Law
School of Law, The Open University

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Death Penalty USA – News by Mike Farrell-Deveau

 

Interesting developments from theUSAin the campaign to abolish the death penalty.

 

Sunshine in Connecticut?

Yesterday on Thursday 5th April Connecticut state Senate voted to repeal the death penalty throughout the state, a welcome development in the continuing campaign against capital punishment in the USA, although the proposed repeal must still be passed by the democrat controlled state House of Representatives who are widely expected to approve. Interestingly and the only questionable issue with Connecticut’s actions here is the decision to retain the death penalty for 11 inmates on death row in the state rendering abolition non retrospective and for future cases only. This is questionable as it sidesteps the reasons for abolishing the penalty in the first place. None the less,Connecticut has taken a positive and widely publicised step forward.

 

As such should the Connecticut House of Representatives approve abolition, this will to 17 the number of states (plus the District of Columbia) that will have repealed capital punishment, a grouping which includes Alaska (1957), Hawaii (1957), Illinois (2011), Iowa (1965), Maine (1887), Massachusetts (1984), Michigan (1846), Minnesota (1911), New Jersey (2007), New Mexico (2009), New York (2007), North Dakota (1973), Rhode Island (1984), Vermont (1964), West Virginia (1965) & Wisconsin (1853) (Although new Mexico holds the dubious distinction of maintaining a death row despite having abolished the death penalty due to not having made abolition retrospective).

 

This is however tempered by the fact that 33 states currently retain capital punishment and an associated death row including Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon (Note that Oregon Governor John Kitzhaber has admirably issued a moratorium on executions in Oregon, but this is only to the extent of his office and has not yet been legally repealed), Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, Wyoming, and out of order, last but certainly not least, the main capital state Texas.

 

Texas remains however the jewel in the crown of abolitionist ambition, the staunchest capital state, the one least likely to budge on executing, and possibly one of the states with more scandal in the name of capital punishment than any other, including the tragic case of Cameron Todd Willingham, executed in 2004 for allegedly killing his three children by arson, but for whom this conviction has been found since to be highly unsafe due to the fact that evidence of arson used was flawed and not suggestive of arson at all. This is bad enough in itself however there is evidence to suggest that an enquiry set up in Texas to investigate the possibility of a miscarriage of justice was derailed on purpose by the state Governor Rick Perry (Famously failed homophobic presidential candidate).

 

Of course the worst aspect of the Willingham case is that he is no longer alive to argue his own case, and no amount of debate, discussion, hiding of facts, curtailing of investigations etc can ever bring him back highlighting one of the fundamental flaws in the capital punishment system, among the many flaws it carries.

 

Other states currently debating repeal of capital punishment includeKentucky,KansasandCalifornia. It can only be hoped that the movement for abolition can gain positive momentum through these states.

The ongoing case of Linda Carty is continuing to attract attention. You may remember from my earlier post in November last year or if you watched the Channel 4 documentary last year ‘The British Woman on death Row‘ that Linda is British Grandmother with dual British / US citizenship currently on Texas’ death row following a highly questioned murder trial which can be read about in great detail on the Reprieve website here the upshot of which is that the conviction of Linda appears highly flawed due to a lack of proper representation, numerous glaring evidential errors, and the reliance on a highly questionable witness, one of the actual killers who in order to avoid the death penalty themselves gave unreliable testimony against Linda in court. Death penalty aside, on the face of such facts bringing the conviction into disrepute, a retrial at the very least is due in Linda’s case.

 

That is not to be the case however, and it is now being reported that Linda has lost a final appeal against sentence and that a date for execution by lethal injection could now be set at any time. This is a highly unacceptable situation, even more so in light of the Cameron Todd Willingham case mentioned above, which proves that not only is execution an unacceptable form of punishment, it is also one from which there can be no comeback should it emerge later that the conviction was unsafe as may well be the case here.

 

A number of things can be done should you wish to take action to assist in the campaign to stop the execution of Linda, all as published on the Reprieve website here, you can sign the petition for clemency, write a letter through Reprieve to the authorities in charge, write directly to Linda offering support, and follow numerous social media sites on the case.

I urge you to do so if you have not, and also to continue to support the many other organisations campaigning for the repeal of capital punishment in the USAand worldwide, a number of which can be found on the LawBlogOne Facebook page, and for which I provide a few links below, there are of course many others.

 

Mike Farrell-Deveau,

April 7th 2012

 

Campaign group links:

Reprieve

Amnesty International

Virginians for alternatives to the death penalty

The National Coalition to Abolish the Death Penalty (NCADP)

Execution Watch (Texas)

 

 

This is an edit of a post that appears on the authors blog which can be reached by clicking below:

 http://lawblogone.wordpress.com/

                         

Death penalty USA – News from Texas; the Rodrigo Hernandez case

Written by Mike Farrell in collaboration with Juliette Frangos.

This week on Thursday 26th January after 6 p.m. the state of Texas is scheduled to execute Rodrigo Hernandez by lethal injection, the first execution in Texas this year that looks likely to go ahead pending last minute appeal.

Case Background
Hernandez was convicted in 2004 of the 1994 kidnap, rape and murder of Susan Verstegen, an act following which he attempted to conceal the victims body in a 50 gallon drum.

Unfortunately during the original investigation a lack of evidence meant that the case went cold, remaining in limbo for 8 years. However when Hernandez was later imprisoned in Michigan for an unconnected offence, and on release in 2002 legally compelled to give a DNA sample for the national DNA database, his sample was matched with unidentified DNA samples recovered from the Verstegen case also on the database. Hernandez was then arrested and charged with murder.
On questioning he gave a detailed confession to the murder claiming to have been under the influence of drugs and alcohol at the time. He was subsequently found guilty on trial in Bexar County, Texas, and sentenced to death in April 2004, allegedly showing no remorse. He has been on death row since.

In light of the confession, DNA and the absence of any evidence that the trial was flawed, there is nothing suggesting the conviction was unsafe, and it is therefore not in question, Hernandez deserves to be punished. Only the capital sentence is in question here.

Since conviction, Hernandez has made numerous appeals against sentence, including applying for a writ of habeus corpus to the Texas State Criminal Appeals Court and the Supreme Court, all of which have been rejected. Appeals continued this month up until the 23rd January, again without success (A full procedural history is here).

Therefore pending any further appeals or last minute stays between now and Thursday night, sentence is on course to be carried out..

Capital punishment – Texas
Texas is far and away the most prolific proponent of capital punishment in the USA (see also here), averaging more than one execution per month, more than twice the rate of any other state. Texas has also conducted 477 executions since 1976, more than 4 times that of the next most prolific states, Virginia and Oklahoma.

These are extraordinary figures, especially considered against other states such as California which has a much larger death row population, and yet has undertaken only 13 executions since 1976.

The high number of executions in Texas may of course largely be explained by the republican / conservative background of that state, a political outlook which traditionally leans to capital punishment. There may be other reasons some of which can be considered here which relate to the history and constitutional makeup of the state with regard to elected appellate judicial office. Whatever the reason, the figures appear excessive, and regardless of public or political support capital punishment is rightly becoming more unacceptable as indicated by the recent positive moratorium on capital punishment issued by the Governor of The state of Oregon. In addition, Texas is not the only republican state in the USA, so something or someone else may be responsible.

The Governor
In the ten years that he has held office, Rick Perry as Governor of Texas has authorised and overseen the largest number of executions in the history of the USA for a single Governor, more than 230 executions in the last decade, almost half the number of executions that have occurred over the last 35 years in Texas, indicating a marked and certainly questionable acceleration of capital punishment over a decade. He is known for radical views on capital punishment, gun ownership, same sex relationships and religion and has in the past vetoed a ban on the death penalty for mentally retarded inmates.

He recently launched a presidential campaign, but withdrew in January 2012 following widespread criticism of a homophobic video that he released to ‘support’ his campaign.

With regards to capital punishment, Mr Perry claims not to lose much sleep over it, has stated that he has no problem authorising capital sentences to be carried out, and has never worried that Texas may ever have executed any innocent persons. This in itself is quite disturbing given the reported case of Cameron Todd Willingham, executed in 2004 for the alleged murder of his three daughters in what was claimed at the time to have been an act of arson on his own home. Following Willingham’s execution however it was discovered and reported that in fact there was no evidence of arson at all, bringing the entire trial, conviction and sentence sharply into question.

An investigation was carried out, but just prior to it reporting, the chair of the committee undertaking it was replaced by Perry, an act which effectively cancelled the inquest, and swept the entire affair under the carpet.

The question however remains; was an innocent man executed, and if so, wouldn’t this case have raised an irrefutable argument against continuing capital punishment in Texas? The possibility that it may well have been is argument enough to support an end to capital punishment in Texas and elsewhere. Instead however it appears that the Governor would rather bury the case in favour of his own personal political stance.

The Texan method
Texas like many other capital states of the USA currently advocates lethal injection as its preferred method of supposed humane executions of death row inmates. Please see link above for the full procedure, which in brief involves the following:

* Hernandez will be transported from his death row facility to the execution unit at Huntsville.
* He will undergo a strip and cavity search, before being confined in a holding cell.
* He may be allowed family visits during the morning.
* He will be offered a last meal but will have no choice in what is offered.
* After 6 p.m. he will be led to the execution chamber, prepared and secured to a gurney.
* Intravenous catheters shall be inserted into a suitable vein in his arm or elsewhere in his body.
* Witnesses will be brought in including victim witnesses, his own family if attending, and select
media representatives.
* The execution will be authorised to proceed.
* Hernandez will be allowed a brief final statement.
* The drug team will be instructed then to administer the sentence, with drugs being administered in sequence.
* The condemned would be expected to be confirmed as medically dead in about 7 minutes from the beginning of the injections.

This method of execution has long been considered humane by some, however it has generated much controversy, including:

– A scandal throughout the European Union where it was found that capital states having exhausted their own supplies of the death drugs used for capital sentences were illicitly importing large quantities from Europe, a practice the EU is now apparently seeking to prevent. Some companies took it upon themselves not to supply their products while they were being used for capital purposes.

– The fact that medical practitioners are barred from administering the drugs under the Hippocratic oath as well as showing a true hypocrisy regarding the ‘justice’ of the procedure, means that administering the sentence falls into the hands of prison employees. There have been alleged stories of incorrect dosages being used, and other instances where the convict has suffered greatly during the procedure. Consider for example the botched34 minute torture ofAngel Nieves Diaz in Florida, 2006.

– The ongoing search for a more humane form of execution in itself proves that deep down inside, we all know that killing another person is wrong. Someone will always have to have blood on their hands regardless of the method or justification, legal or otherwise.

Written by Mike Farrell in collaboration with Juliette Frango and reproduced here by kind permission of both authors.

Passive Smoking and the European Convention

In recent times, smoking has become an issue for the European Court of Human Rights when prisoners complained that being subjected to passive tobacco smoke infringed on their basic human rights. Although there is no automatic right to health under the European Convention of Human Rights, applicants can avail of the protections under Article 3 which prohibits torture and other inhuman and degrading treatment. In the two cases below, the applicants sought to challenge the legality of prison policy which permitted prisoners to be subjected to tobacco smoke.

In Florea v. Romania 1, the applicant was detained in prison from March 2002 and February 2005. He spent three days in a hospital whilst under custody during this time. At the time of the applicant’s imprisonment he suffered from chronic hepatitis and arterial hypertension. In prison he had to share a cell for approximately eight or nine months with between 110 and 120 other prisoners. According to the applicant, 90% of his cellmates were smokers. He was also in the company of smokers whilst in hospital. In April 2004, the applicant lodged a claim for compensation on account of the deterioration of his health. Relying on Article 3, the applicant complained in particular of overcrowding and poor hygiene conditions, including having been detained with smokers. His claim was dismissed by a County Court in 2006 on the grounds that no causal link had been established between the passive smoking and the applicant’s ill-health.

The applicant then took his case to the European Court of Human Rights. The Court distinguished the case from the earlier European case of Aparicio Benito v. Spain2 where the Court had not found a violation of Article 3 as the applicant in Aparicio Benito could use an individual cell to get respite from passive smoking. However, the Court was unwilling to say with certainty whether passive smoking on its own would constitute a violation – the Court considered that the applicant had been held in cramped conditions, with personal space falling below the European standard, and additionally based their decision on this.

In the 2011 case of Elefteriadis v Romaniasup>3, the applicant, a Romanian national, was serving life imprisonment for murder. When the applicant entered prison in 1992, he was declared clinically fit. During his time in prison, the applicant made various requests to be transferred to cells where he would not be subjected to smoke. These failed to produce results until 1999 where he was placed in a smoke free cell. In the same year the applicant was diagnosed with pulmonary fibrosis4. In February 2005, the applicant was placed in a cell with two prisoners who smoked for nine months but was transferred after requests. The applicant was also transported on several occasions between the prisons and court where he was held in cramped conditions, with little ventilation, where he alleged he was also subjected to passive smoking. In 2008, the applicant was diagnosed with grade two chronic obstructive bronchopneumopathy5. The applicant took proceedings against the prison on the basis that the respiratory diseases that he suffered from were caused by subjection to passive smoking. The prison disputed the applicant’s claims and argued that it was impossible to separate smokers from non-smokers in prison. The domestic court accepted the prison’s argument and rejected the applicant’s complaint, further finding that the applicant had not provided proof of the alleged damage.

The European Court in this case held that, because the applicant suffered from chronic pulmonary fibrosis, the authorities were under an obligation to take measures to safeguard his health by separating him from prisoners who smoked. The European Court highlighted that the conditions of transportation to and from the domestic court had been contrary to the doctors’ advice to avoid exposure to tobacco smoke. The Court further held that the onus was not on the applicant to prove that passive smoking had led to the deterioration of his health, and stated that the prison had not proven beyond a reasonable doubt that the applicant’s ill-health was not caused by passive smoking. As such, the Court held that there had been a violation of Article 3.

What is clear is that the European Court now views serious forced exposure to passive smoking which results in medical problems to constitute a violation of Article 3, at least when the passive smoking takes place in prisons. The cases do raise some interesting questions concerning the potential that subjection to passive smoking could lead to findings of violations of Article 3 outside of prisons6. Could the decisions in Florea and Elefteriadis be the starting point of for the European Court to develop jurisprudence which might lead to the banning of passive smoking in other public places?

For the mean time, it appears that the jurisprudence is confined to prisons and to have a successful claim applicants will have to demonstrate that adequate precautions were not taken to protect them from passive smoking, and subsequent ill-health. It should also be pointed out that, in prison, detainees are held by the state and therefore entitled to more interventionist state action to protect their health. As well as this, as claims are taken and dealt with by the European Court under Article 3 the level of suffering endured by the applicant must be proven to be severe to be considered to be ‘inhuman or degrading’ and fall within the ambit of the substantive provision. However, it might be suggested, in light of the above, that individuals who have not been adequately safeguarded from the effects of passive smoking by other public authorities could potentially challenge the state on the issue if they demonstrate that their health has deteriorated due to subjection to passive smoking. If they were to do so, the onus will be on the member state to prove that there was no causal link between the passive smoking and the applicant’s ill-health. Potentially, therefore, there is a possibility that it may not be long before an applicant takes a case to the European Court, and is successful in challenging a state for not enforcing a smoking ban in public places. This could have wide ranging implications across Europe for those who are subjected to passive smoking on a regular basis. In Russia, for example, a full smoking ban is not in force and smoking is permitted in bars and restaurants7. This is similar in other European states including Slovakia8 and the Czech Republic9. In Albania, a smoking ban is in place, but is largely ignored10.

Neil Graffin
PhD Candidate
Queen’s University of Belfast

References:

1 Florea v. Romania, (Application no. 37186/03), Judgment of 14 September 2010 (2010); This case is only available in French, however, a summary can be found on the page below, or through the press release on HUDOC. http://sim.law.uu.nl/sim/caselaw/Hof.nsf/1d4d0dd240bfee7ec12568490035df05/83ff6f5c75014d78c1257797002d1151?OpenDocument
2 Aparicio Benito v. Spain, (Application no. 36150/03), Judgment of 13 November 2006, (2006)
3 Elefteriadis v Romania, (Application no. 38427/05), Judgment of 25th January 2011, (2011); this Judgment is in French only, but a summary of the case can be found in the press release through HUDOC or at the link below:
http://sim.law.uu.nl/sim/caselaw/Hof.nsf/1d4d0dd240bfee7ec12568490035df05/98bd79380a81192fc125782200522e97?OpenDocument
4 Pulmonary fibrosis means scarring (thickening) of the tissue of the lung.
Scarring is part of the body’s repair process and can help to heal injured areas. However, scar tissue that forms in the lungs can stop them working properly, making them less efficient at transporting oxygen into the blood and removing carbon dioxide. This often leads to breathing difficulties, which can be brought on by simple activities such as walking and talking. (See: http://www.nhs.uk/conditions/pulmonary-fibrosis/Pages/Introduction.aspx)
5 Disease of the bronchi and lung tissue. (See, http://medical-dictionary.thefreedictionary.com/bronchopneumopathy, accessed 14/09/2011)
6 For discussion concerning this, see: Eva Brems, ‘Forced exposure to passive smoking violates human rights’ Available at:
http://strasbourgobservers.com/2010/09/24/forced-exposure-to-passive-smoking-violates-human-rights/
7 http://www.usatoday.com/news/world/2007-05-25-smoking_N.htm (Accessed 14/09/2011)
8 http://spectator.sme.sk/articles/view/20568 (Accessed 14/09/2011)
9 http://www.praguepost.com/opinion/7561-petition-pushes-for-czech-smoking-ban.html (Accessed 14/09/2011)
10 http://www.balkaninsight.com/en/article/albania-urged-to-enforce-smoking-ban (Accessed 14/09/2011)

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