tag:theconversation.com,2011:/fr/topics/tribunals-23728/articlesTribunals – The Conversation2022-09-23T01:45:18Ztag:theconversation.com,2011:article/1910602022-09-23T01:45:18Z2022-09-23T01:45:18ZA UN-backed tribunal on Khmer Rouge crimes just confirmed the conviction of key leader Khieu Samphan. What now?<figure><img src="https://images.theconversation.com/files/486202/original/file-20220922-8022-3dfuxy.jpg?ixlib=rb-1.1.0&rect=0%2C2%2C2000%2C1323&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Nhet Sok Heng/Extraordinary Chambers in the Courts of Cambodia via AP</span></span></figcaption></figure><p>A United Nations-backed tribunal in Cambodia has just concluded its largest trial, concerning crimes committed during the Khmer Rouge regime. The tribunal’s appeal judges yesterday confirmed the conviction against 91-year-old <a href="https://www.eccc.gov.kh/en/indicted-person/khieu-samphan">Khieu Samphan</a>, the former head of state, for his role in these crimes.</p>
<p>Yesterday’s decision was a turning point. After this, there will be no further trials in the Extraordinary Chambers in the Courts of Cambodia. But what will the lasting impacts of these trials be?</p>
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<a href="https://theconversation.com/khmer-rouge-genocide-nuon-cheas-death-has-major-implications-for-justice-in-cambodia-121582">Khmer Rouge genocide: Nuon Chea's death has major implications for justice in Cambodia</a>
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<h2>What was the Khmer Rouge regime?</h2>
<p>The <a href="https://www.bbc.com/news/world-asia-pacific-10684399">Khmer Rouge</a>, otherwise known as Communist Party of Kampuchea, held power in Cambodia from 1975 to 1979. Their ascent to power followed a period of violent authoritarianism, conflict and the loss of half a million lives during US <a href="https://gsp.yale.edu/sites/default/files/walrus_cambodiabombing_oct06.pdf">bombing</a> in the Vietnam war. </p>
<p>While many Cambodians initially welcomed the Khmer Rouge’s victory, this popular support was short-lived. Life under Khmer Rouge rule meant forced labour, starvation, and the constant threat of torture, imprisonment and death. </p>
<h2>Prosecuting the crimes of the Khmer Rouge</h2>
<p>In 1979, the Vietnamese defeated the Khmer Rouge and installed a tribunal to prosecuted Communist Party of Kampuchea Prime Minister Pol Pot and Deputy Prime Minister Ieng Sary in absentia.</p>
<p>After that largely symbolic effort, there was no accountability for the crimes of the Khmer Rouge for several decades.</p>
<p>However, following negotiations between the Cambodian People’s Party (still in power) and the UN, in 2003 a tribunal was established to prosecute senior Khmer Rouge leaders and “those most responsible” for the crimes.</p>
<p>Known officially as the <a href="https://www.eccc.gov.kh/">Extraordinary Chambers in the Courts of Cambodia</a>, this UN-backed tribunal started work in 2006. Its jurisdiction covers crimes defined in Cambodian law and international law, including war crimes, crimes against humanity, and genocide. </p>
<p>There is now a permanent court to prosecute these kinds of crimes: the <a href="https://www.icc-cpi.int/">International Criminal Court</a> in The Hague. But it can only address crimes committed after 2002, whereas the UN-backed tribunal in Cambodia’s mandate reaches back to the 1970s.</p>
<h2>The trials</h2>
<p>In its 16 years of operation, the UN-backed tribunal in Cambodia has completed just three trials. </p>
<p>In the <a href="https://www.eccc.gov.kh/en/case/topic/90">first trial</a>, it found Kaing Guek Eav (alias “Duch”), former head of the S-21 prison, guilty of crimes against humanity and war crimes. </p>
<p>S-21 was used to torture suspected enemies of the regime. An estimated 12,000 men, women and children were detained there; only 12 are known to have survived. Duch’s conviction was upheld on appeal, and he died in prison in 2020.</p>
<p>The next case concerned four Communist Party of Kampuchea senior leaders: Nuon Chea, Khieu Samphan, Ieng Sary and Ieng Thirith.</p>
<p>But <a href="https://www.eccc.gov.kh/en/indicted-person/ieng-thirith-former-accused">Ieng Thirith</a> was found unfit to stand trial in 2012 and <a href="https://www.eccc.gov.kh/en/indicted-person/ieng-sary-fomer-accused">Ieng Sary</a> died in 2013, leaving only two defendants in the case.</p>
<p>Due to the complexity of the case, the tribunal split it into two phases. </p>
<p>In <a href="https://www.eccc.gov.kh/en/document/court/case-00201-judgement">2014</a>, the tribunal convicted Nuon Chea and Khieu Samphan of crimes connected to the expulsion of Cambodia’s urban population into rural worksites. This conviction was mostly upheld in <a href="https://www.eccc.gov.kh/en/document/court/appeal-judgement-case-00201">2016</a>, with both defendants receiving a life sentence. </p>
<p>In <a href="https://www.eccc.gov.kh/en/document/court/case-00202-judgement">2018</a>, it convicted both men of further crimes against humanity, war crimes and genocide.</p>
<p>This conviction covered forced labour, the torture and execution of suspected dissidents, crimes targeting ethnic, political and religious groups, and orchestrating forced marriages with a view to incentivising population growth.</p>
<p>The judgement also recognised many rapes by Khmer Rouge cadre in worksites and prison sites, although these crimes were not formally charged. </p>
<p>Both men appealed the 2018 judgement, but Nuon Chea <a href="https://theconversation.com/khmer-rouge-genocide-nuon-cheas-death-has-major-implications-for-justice-in-cambodia-121582">died</a> shortly after at age 93, leaving Khieu Samphan as the sole appellant.</p>
<h2>Genocide</h2>
<p>The case that ended yesterday was the Cambodia tribunal’s only case to include charges of genocide.</p>
<p>Nuon Chea was convicted of genocide against the ethnic Vietnamese and Cham groups; Khieu Samphan was convicted of genocide against the ethnic Vietnamese only.</p>
<p>These legal findings do not necessarily square with popular conceptions of genocide in Cambodia, where “genocide” has come to mean the atrocity crimes against the entire population. </p>
<p>But in <a href="https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf">international law</a>, “genocide” is defined more narrowly – it only captures crimes committed with an intent to destroy a national, ethnic, racial or religious group. </p>
<p>Nor do the tribunal’s genocide findings necessarily accord with the perspectives of the targeted groups. Our research suggests the <a href="https://reparations.qub.ac.uk/assets/uploads/Cham-Culture_Book_LV06.pdf">Cham</a> and <a href="https://search.informit.org/doi/abs/10.3316/agispt.20190322008162?casa_token=mQfkRaa8F5oAAAAA%3A4Eh93XegG0k6CSEhBIAOgvsc5iYmIB4SKVjbMmnKYr6rfDg9EmjS6POkXPKD8Ha-kZw0MEKlQyQ0kg">ethnic Vietnamese</a> communities do not always draw clear distinctions between their experience, and that of the broader Cambodian population. While they wanted the tribunal to recognise their suffering, this did not have to include a conviction of genocide targeting them exclusively. </p>
<p>But ultimately, these legal details may not matter. It seems the 2018 genocide conviction was meaningful for many Cambodians, who viewed it as affirming their experience of “genocide”.</p>
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<h2>What next?</h2>
<p>Many Khmer Rouge leaders died before they could be indicted, and attempts to prosecute other suspects were <a href="https://www.justiceinitiative.org/publications/political-interference-extraordinary-chambers-courts-cambodia">blocked</a> by the Cambodian government.</p>
<p>Now, attention is turning to the tribunal’s <a href="https://www.eccc.gov.kh/en/articles/co-rapporteurs-residual-functions-related-victims-deliver-their-report">legacy</a>.</p>
<p>Already, there are signs it affected the historical record. For example, the pattern of forced marriage and sexual violence recorded in its judgements was not widely acknowledged by Cambodian or Western historians prior to these trials.</p>
<p>But the full extent of the tribunal’s impact will take decades to assess.</p>
<p>It is yet to be seen whether it effected the rule of law in Cambodia, whether its judgements and reparations brought a meaningful sense of justice to survivors, and how the judgements will influence understandings of the regime and its crimes. </p>
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Read more:
<a href="https://theconversation.com/cambodians-await-crucial-tribunal-finding-into-1970s-brutal-khmer-rouge-regime-106078">Cambodians await crucial tribunal finding into 1970s brutal Khmer Rouge regime</a>
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<p class="fine-print"><em><span>Rosemary Grey receives funding from the Australian Research Council and University of Sydney, and has previously received funding from the Sydney Southeast Asia Centre.</span></em></p><p class="fine-print"><em><span>Rachel Killean does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many Khmer Rouge leaders died before they could be indicted, and attempts to prosecute other suspects were blocked by the Cambodian government. Now, attention is turning to the tribunal’s legacy.Rosemary Grey, Lecturer in Law, University of SydneyRachel Killean, Senior Lecturer in Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1868162022-07-17T12:06:13Z2022-07-17T12:06:13ZHere’s a simple way to stop governments giving jobs to mates<figure><img src="https://images.theconversation.com/files/473552/original/file-20220712-13-3urf1g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Handing out a cushy job to a political mate might seem harmless – after all, everyone does it, right? – but the politicisation of public appointments has real, pervasive consequences for Australian democracy. Increasingly, many government boards, tribunals and independent agencies are stacked with people who have worked in politics. </p>
<p>A new Grattan Institute <a href="https://grattan.edu.au/report/new-politics-public-appointments">report</a>, released today, shows that political appointments are common at state and federal levels. It reveals the costs all Australians bear when governments choose mates over merit. </p>
<h2>Political appointments are widespread</h2>
<p>About 7% of federal government–appointed jobs in public bodies are filled by people who have worked as a politician, political adviser, candidate or party employee. </p>
<p>But this is just the baseline. Political appointments triple to 21% for jobs on well-paid, powerful and/or prestigious boards. That’s one in five of these top public roles. Individually, many of those people may have the right qualifications, but collectively their presence undermines these important positions.</p>
<p>On the boards of Australia Post and other federal government businesses – companies employing thousands of people and managing income in the billions – more than 20% of members have a political connection. In most states, the figure is above 10%. This is in stark contrast to ASX100 boards with very similar responsibilities, where fewer than 2% of board members have a direct political connection.</p>
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<p>The boards of powerful independent government bodies, including regulators and commissions, are also filled with political appointments. Half of the members of the Productivity Commission board, for example, have a connection to the Coalition. </p>
<p>While skills established in a political career might be valuable, most political appointees are from the same side of politics as the government that appointed them. The signs are that mateship is prevailing over merit. </p>
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<p>Political stacking is especially evident on the Administrative Appeals Tribunal (AAT), an independent expert body that reviews government decisions on everything from child support to migration status. </p>
<p>The AAT has become an attractive destination for political appointments, offering the full trifecta of powerful, prestigious and well-paid (AAT member salaries range from nearly $200,000 to nearly $500,000). A staggering 20% of the AAT’s 320 tribunal members have a direct political connection to the government that appointed them. </p>
<p>And the problem seems to be getting worse. Political appointments to the AAT have grown substantially in the past five years. Many of these appointments were made in the lead-up to the 2019 and 2022 federal elections.</p>
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<h2>Political appointments damage institutions and trust</h2>
<p>Public appointments shouldn’t be regarded as “nice things to give to mates”. People in these roles make important decisions that should be kept at arm’s length from government. In some cases, political appointees have significant influence over public policy. </p>
<p>Politicising public appointments can compromise government regulation and oversight, promote a corrupt culture and undermine public trust in the institutions of government. </p>
<p>“Captain’s picks” don’t always have the skills and experience needed to carry out their responsibilities effectively. A Grattan Institute <a href="https://grattan.edu.au/report/new-politics-public-appointments">analysis</a> of performance data shows AAT members with political affiliations perform worse on average than those without. Almost a quarter (24%) of political appointees fall well short of their performance targets, compared to 17% of non-political appointees. </p>
<p>Even if the person appointed is fully capable of doing the job, their presence can compromise the perceived or actual independence of the institution. These appointments promote a culture of patronage in which loyalty is assumed to be more important than merit. A culture of this kind can have a chilling effect on non-political candidates and appointees too – they may fear that rocking the boat or providing frank and fearless advice will be career-limiting.</p>
<h2>A better way</h2>
<p>If Australia had a better process for making public appointments, we could be confident appointees were there on merit, whether they are politically affiliated or not. </p>
<p>This problem has an easy fix. Federal and state governments should establish a transparent, merit-based process for all public appointments. As the chart below shows, the new process should be legislated and overseen by a dedicated public appointments commissioner. The commissioner’s work would restore public confidence in appointees and lift the performance of public sector boards and tribunals.</p>
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<p>This process could help change the culture: seeking the best person for the job would become the only consideration ministers bring to bear on their decisions. If the new federal government is serious about doing politics differently, this is an easy change that would make a real difference.</p><img src="https://counter.theconversation.com/content/186816/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The Grattan Institute began with contributions to its endowment of $15 million from each of the Federal and Victorian Governments, $4 million from BHP Billiton, and $1 million from NAB. In order to safeguard its independence, Grattan Institute’s board controls this endowment. The funds are invested and contribute to funding Grattan Institute's activities. Grattan Institute also receives funding from corporates, foundations, and individuals to support its general activities as disclosed on its website.</span></em></p><p class="fine-print"><em><span>Anika Stobart and Danielle Wood do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The federal government needs a transparent, merit-based process for all public appointmentsKate Griffiths, Deputy Program Director, Grattan InstituteAnika Stobart, Associate, Grattan InstituteDanielle Wood, Chief executive officer, Grattan InstituteLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1405972020-06-24T16:49:10Z2020-06-24T16:49:10ZThe ICC’s rejection of Bemba’s compensation claim points to need for reform<figure><img src="https://images.theconversation.com/files/342759/original/file-20200618-41230-1bzo5yq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Jean-Pierre Bemba during his trial at the International Criminal Court in The Hague, The Netherlands.
</span> <span class="attribution"><span class="source">EPA-EFE/Michael Kooren</span></span></figcaption></figure><p>The International Criminal Court (ICC) recently rejected a <a href="https://www.icc-cpi.int/Pages/item.aspx?name=pr1523">claim for financial compensation</a> by former Democratic Republic of Congo (DRC) vice president Jean Pierre Bemba after he was acquitted of war crimes and crimes against humanity <a href="https://www.icc-cpi.int/Pages/item.aspx?name=pr1390">on appeal in 2018</a>. </p>
<p>The court’s decision has wider implications for international criminal law.</p>
<p>In 2016, the ICC convicted Bemba of the charges against him, and <a href="https://www.icc-cpi.int/Pages/item.aspx?name=PR1223">sentenced him to 18 years’ imprisonment</a> for the crimes committed by his militia in the neighbouring Central African Republic in 2002 and 2003.</p>
<p>But, on 8 June 2018, the <a href="https://www.icc-cpi.int/Pages/item.aspx?name=pr1390">ICC Appeals Chamber acquitted him</a> of all charges. According to some observers, his acquittal <a href="https://theconversation.com/bemba-acquittal-overturns-important-victory-for-sexual-violence-victims-99948">overturned an important victory for victims of sexual violence</a> under international criminal law, thanks largely to evidentiary ambiguities and inconsistencies. </p>
<p>Bemba then filed a claim seeking over €69 million in damages he claimed he had suffered due to having had his assets frozen for a decade by the court. He also wanted to be compensated for legal expenses.</p>
<p>His claim consisted of two components. First, was a request for compensation pursuant to article 85 of the Rome Statute, on account of a grave and manifest miscarriage of justice during the hearing of the main case against him. The <a href="https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf">Rome Statue </a> is the treaty that established the International Criminal Court in July 1998. </p>
<p>Second, was a request for compensation for the damage suffered by his property and assets, as a result of the court’s orders. He alleged that the court failed to properly manage and preserve his property.</p>
<p>The decision is a unique interpretation of the court’s powers and jurisdiction regarding compensation to those that are acquitted. The principal element relates to the cooperation of states with the International Criminal Court.</p>
<p>For the first time, the court restricted its responsibility under <a href="https://www.icc-cpi.int/resourcelibrary/official-journal/rome-statute.aspx">Article 93(1)(k) of the Rome Statute.</a> Basically, its responsibility stops at requesting state parties to seize and freeze assets. It is then up to the states to preserve such assets and they cannot be held to account by the court for any mismanagement.</p>
<h2>Narrow interpretation of Rome Statute</h2>
<p>The court exercises a great degree of discretion when it comes to compensation. This is due to the ambiguity in the language of <a href="https://www.icc-cpi.int/resourcelibrary/official-journal/rome-statute.aspx#article85">Article 85 of the Rome Statute</a>, which gives the victim of unlawful arrest or detention, an enforceable right to compensation. Exceptional circumstances are provided for by Article 85(3) which states that;</p>
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<p>…in exceptional circumstances, where the court finds conclusive facts showing that there has been a grave and manifest miscarriage of justice, it may in its discretion award compensation, according to the criteria provided in the Rules of Procedure and Evidence, to a person who has been released from detention following a final decision of acquittal or a termination of the proceedings for that reason.</p>
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<p>But this is ambiguous because the terms “grave and manifest miscarriage of justice” are not defined in the statute, and so can lead to divergent interpretations.</p>
<p>This is the third claim for compensation to be rejected by the court. In 2015, the court rejected a claim by <a href="https://www.icc-cpi.int/CourtRecords/CR2016_01994.PDF">Mathieu Ngudjolo</a>. The militia leader was accused of having committed war crimes and crimes against humanity in the DRC in 2003. He was acquitted in 2012.</p>
<p>Similarly, in 2016, the court rejected <a href="https://www.icc-cpi.int/CourtRecords/CR2016_01563.PDF">Jean-Jacques Mangenda-Kabongo’s request</a> for compensation claim. Mangenda was a member of Bemba’s defence team and case manager. He had been convicted by the court of tampering with witnesses in Bemba’s initial trial. </p>
<p>Due to the legal ambiguity in the Rome Statute, the court has set a very high threshold for term the “grave and manifest miscarriage of justice”. In other words, the violations must be serious and exceptional. </p>
<p>A liberal interpretation of Article 21(3) could have allowed an expansive understanding of this problematic term. Such an interpretation would recognise internationally recognised human rights, like the right to compensation, within the courts decisions.</p>
<p>The narrow interpretation relates to the maintenance of seized property. In response to the claim for financial loss arising from destruction and damage to Bemba’s property in the DRC, Portugal and Belgium, the court indicated that it did not have the mandate to adjudicate on damage to assets resulting from the conduct of member states. </p>
<p>This line of argument isn’t convincing. State signatories to the Rome Stature are considered to be agents of the court. As such, their conduct relating to cases before the court would be subject to review by the court. </p>
<h2>Potential impact of judgment</h2>
<p>The court’s decision points to a need to amend the wording relating to the meaning of “grave and manifest miscarriage of justice” under the Rome Statute. It also has implications for international criminal law. </p>
<p>The practice of providing compensation for an acquitted accused is considered important in some domestic statutes. For example, in the <a href="https://blogs.kent.ac.uk/criminaljusticenotes/2019/03/04/compensating-miscarriages-of-justice/">UK</a>, compensation for “miscarriage of justice” is possible, depending on the punishment and its consequences on the person’s life. </p>
<p><a href="https://www.bbc.com/news/uk-northern-ireland-47973826">In Northern Ireland, more than £9m was paid in compensation</a> between 2010 and 2019, to 16 people whose criminal convictions were overturned.</p>
<p>There is also no provision for compensation after acquittal under the statutory frameworks of the <a href="https://www.refworld.org/docid/3dda28414.html">International Criminal Tribunal for the former Yugoslavia</a>, <a href="https://www.refworld.org/docid/3ae6b3952c.html">International Criminal Tribunal for Rwanda</a>, or the<a href="https://legal.un.org/avl/ha/scsl/scsl.html"> Special Court for Sierra Leone</a>. </p>
<p>Nonetheless, the Rome Statute is an inspirational legal source to other tribunals. For example, Article 85 of the Rome Statute was adopted by the <a href="https://www.icc-cpi.int/CourtRecords/CR2020_01979.PDF">International Criminal Tribunal for Rwanda</a> in its determination of the term “grave and manifest miscarriage of justice”. </p>
<p>The International criminal law court cannot practically lead the way in fixing this anomaly, since it is a member driven court. However, special international tribunals must evolve to reflect contemporary realities of people who are acquitted after long trials, and the need for compensation. </p>
<p>Regarding the responsibility to maintain property seized from an accused person, we observe a complex role of the court’s registry, with regard to support and follow up duties.</p>
<p>Nonetheless, there is clearly a need for administrative reforms. This decision suggests that the International Criminal Court might be reluctant to seize or freeze assets in the future. This needs to be considered, in light of the looming war crimes trials of former <a href="https://www.bbc.com/news/world-africa-51462613">Sudanese President Omar al-Bashir</a>, and warlord <a href="https://www.icc-cpi.int/Pages/item.aspx?name=ma252">Ali Muhammad Ali Abd–Al-Rahman (Ali Kushayb)</a>.</p><img src="https://counter.theconversation.com/content/140597/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tonny Raymond Kirabira receives funding from Erasmus+ Programme for his current Research Visit at the International Criminal Court,that will end on 31 August 2020.
The views expressed therein are those of the author alone and do not reflect the views of the International Criminal Court.</span></em></p><p class="fine-print"><em><span>Leïla Choukroune does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The court’s decision has wider implications for international criminal law.Tonny Raymond Kirabira, PhD Researcher, University of PortsmouthLeïla Choukroune, Professor of International Law and Director of the University Research and Innovation Theme in Democratic Citizenship, University of PortsmouthLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1322772020-03-02T14:18:52Z2020-03-02T14:18:52ZBringing al-Bashir to justice: the pros and cons of various options<figure><img src="https://images.theconversation.com/files/317543/original/file-20200227-24664-1r1nwgm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sudanese protestors celebrate a deal with the ruling generals on a new governing body, in the capital Khartoum, recently. </span> <span class="attribution"><span class="source"> Ashraf Shazly/AFP via Getty Images)</span></span></figcaption></figure><p>After coming into power in a military coup in 1989, Omar al-Bashir, former president of Sudan, targeted the civilian populations in the Fur, Masalit and Zaghawo regions of Darfur, whom he regarded as opposing his rule. According to the International Criminal Court, he played an active role in the <a href="https://www.icc-cpi.int/CaseInformationSheets/AlBashirEng.pdf">design and coordination of the atrocities</a> against them. </p>
<p>This is why the court indicted him on numerous charges of crimes against humanity – including murder, torture, rape, war crimes and genocide – in 2009 and again in 2010.</p>
<p>Yet al-Bashir never faced trial. For over a decade he travelled throughout Africa managing to evade arrest. This was despite the fact that 33 <a href="https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx">African countries</a> have signed the Rome Statute establishing the International Criminal Court. </p>
<p>But the tide turned in early 2019 when peaceful protests by Sudanese led to al-Bashir <a href="https://theconversation.com/how-sudans-protesters-upped-the-ante-and-forced-al-bashir-from-power-115306">being ousted</a>. This led to the new ruling Sovereign Council of Sudan announcing earlier this year that it would hand al-Bashir over, together with four of his aides, to the International Criminal Court. It used <a href="https://edition.cnn.com/2020/02/11/africa/sudan-omar-bashir-icc-intl/index.html">the emotive words that</a></p>
<blockquote>
<p>We cannot achieve justice unless we heal wounds with justice. </p>
</blockquote>
<p>An International Criminal Court delegation has since visited Khartoum to discuss cooperation with the Sovereign Council. But it’s unclear what will happen <a href="https://www.middleeastmonitor.com/20200218-icc-mulls-extradition-of-sudans-bashir/">next</a>.</p>
<p>The Sovereign Council’s <a href="https://www.reuters.com/article/us-sudan-darfur/icc-trial-in-the-hague-one-option-for-sudans-bashir-minister-idUSKBN20B1PC">initial announcement</a> stated that al-Bashir would be surrendered to the International Criminal Court. But other possibilities have subsequently been floated, including <a href="https://allafrica.com/stories/202002240022.html">a hybrid court</a>. These remain under discussion.</p>
<p>Al-Bashir’s legal counsel will also be strongly opposed to sending him for trial in The Hague on legal and political grounds. They <a href="https://www.aa.com.tr/en/africa/al-bashirs-handover-decision-to-icc-divides-sudanese/1744653">assert</a> that the International Criminal Court lacks jurisdiction because Sudan is not a signatory to the Rome Statute. And they argue that the interim government is merely attempting to placate world leaders. </p>
<p>This legal argument’s weakness is that the Rome Statute gives the United Nations Security Council <a href="https://www.accord.org.za/conflict-trends/politicisation-international-criminal-court-united-nations-security-council-referrals/">the mandate</a> to refer non-signatory countries to the International Criminal Court.</p>
<p>Whatever the reason – true justice or placating other countries – some form of accountability is required. But prosecution by the International Criminal Court is not the only way for victims to obtain justice. Various options are available for his prosecution and with the ICC dependent on the cooperation of the Sudanese government, the new Sudanese government will ultimately hold his fate in their hands.</p>
<h2>The options</h2>
<p>Al-Bashir can be handed over to the International Criminal Court for prosecution. This option should receive due consideration since his arrest and handing over was one of the <a href="https://www.news24.com/Africa/News/darfuris-rejoice-as-sudan-agrees-to-hand-bashir-to-icc-20200217">primary demands</a> of those who rose up against his rule. </p>
<p>It would also be seen as a reflection of the new Sudanese government’s commitment to justice and international law. </p>
<p>But handing al-Bashir over to the International Criminal Court need not mean prosecution in The Hague. One argument is that consideration should be given to the need for the victims and survivors to have access to his trial. The International Criminal Court could therefore opt for an ICC trial away from The Hague, conducted in Sudan. </p>
<p>This would create its own challenges. For example, there may be jurisdictional issues as Sudan is not a signatory of the Rome Statute. Another potential hurdle is that <a href="https://allafrica.com/stories/202002240022.html">factions of the military</a> that still support al-Bashir will stop the prosecution from interviewing witnesses and conducting the trial in Sudan. </p>
<p>A third possible route would be for al-Bashir to stand trial in a Sudanese court. But some argue that the Sudanese courts aren’t fit to prosecute <a href="https://www.aa.com.tr/en/africa/al-bashirs-handover-decision-to-icc-divides-sudanese/1744653">war crimes</a> and crimes against humanity . There is also <a href="https://www.aa.com.tr/en/africa/al-bashirs-handover-decision-to-icc-divides-sudanese/1744653">little trust</a> in the courts, since the <a href="https://www.nyulawglobal.org/globalex/Sudan.html">rule of law has been compromised</a>. </p>
<p>Yet another option would be a hybrid court consisting of Sudanese and other international judges as <a href="https://allafrica.com/stories/202002240022.html">originally mooted by the African Union</a>. This would be to counter the mistrust, particularly if the judges were from African countries. </p>
<p>This model was used successfully in the prosecution of former Chadian president Hissène Habré by the <a href="https://theconversation.com/african-trial-of-chadian-dictator-habre-is-a-landmark-against-impunity-60469">Extraordinary African Chambers in Senegal</a>. The hybrid court in that instance was hailed as the <a href="https://africanarguments.org/2017/05/02/habre-trial-future-african-justice/">future of African tribunals</a>. </p>
<p>But the use of “universal jurisdiction” to justify the prosecution of Habré in a foreign country was controversial. The AU has been critical of this legal concept since a Rwandan general’s arrest in London on a Spanish warrant. Al-Bashir’s supporters might echo this and once again claim a lack of jurisdiction. And whether this option could work in the prosecution of al-Bashir may ultimately depend on the political will of the heads of states with whom al-Bashir had strong political ties, especially those in neighbouring countries.</p>
<p>The final option would be to see The Hague as only a last resort should the Sudanese justice system fail. This would fit into the idea of complimentarity – that the ICC is authorised to take cases only where states cannot or will not prosecute. Considering the African Union’s stance on the court, and its desire for the continent to solve its own problems, a trial in Sudan, with The Hague as only a last resort should the Sudanese justice system fail, may be the most appropriate option. </p>
<h2>Will justice be done?</h2>
<p>Considering the AU’s vehement criticism of the International Criminal Court, it has been strangely quiet in response to al-Bashir’s arrest and the likelihood of his being handed over to the court. </p>
<p>With the narrative already changing from the definite handing over of al-Bashir to the International Criminal Court, to one of options being considered, it remains to be seen whether justice will indeed be done – and seen to be done – for his victims.</p><img src="https://counter.theconversation.com/content/132277/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Nel does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The African Union’s staunch support for al-Bashir, cloaked in criticism of the International Criminal Court, denied justice to the millions affected by the conflict in Sudan.Michelle Nel, Lecturer in Criminal and Military law and the Law of Armed Conflict at the Faculty of Military Science, Stellenbosch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/893872018-01-14T08:33:08Z2018-01-14T08:33:08ZZimbabwe urgently needs a new land administration system<figure><img src="https://images.theconversation.com/files/200900/original/file-20180105-26160-1vwdvct.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">REUTERS/Siphiwe Sibeko</span></span></figcaption></figure><p>Zimbabwe urgently needs a new system of land administration to harness development in the agricultural sector. The country’s land use and ownership have been significantly reconfigured by the <a href="http://www.tandfonline.com/doi/full/10.1080/03066150.2011.583642">fast-track land reform programme</a> undertaken during Robert Mugabe’s rule. </p>
<p>Today, <a href="http://www.zimbabweland.net/Books.html">following the land reform</a> of the 2000s, Zimbabwe has an agrarian structure that’s made up of small, medium and large farms, all under different forms of land ownership. A landscape that used to be dominated by 4,500 large-scale commercial farmers is now populated by about 145,000 smallholder households, occupying 4.1 million hectares, and around 23,000 medium-scale farmers on 3.5 million hectares. </p>
<p>Knowing exactly who has land and where is difficult. Illegal multiple allocations combine with unclear boundary demarcations and an incomplete recording system. Many new land owners don’t have formal documentation and lack leases or permits confirming ownership. There is a great deal of uncertainty given the often haphazard, sometimes corrupt, approach to land reallocation that took place under the land reform programme.</p>
<p>Given that the landscape is very different to what went before, a new system of land administration is urgently needed.</p>
<h2>Promise of change</h2>
<p>In his <a href="http://allafrica.com/stories/201711250043.html">inaugural speech</a>, Zimbabwe’s new president, Emmerson Mnangagwa, declared that land reform was both necessary and irreversible, and acknowledged some big, outstanding challenges.</p>
<p>A new land administration system for the post-land reform era is long overdue. <a href="https://theconversation.com/settling-the-land-compensation-issue-is-vital-for-zimbabwes-economy-89384">Paying compensation to former owners</a> is a vital first step. This has to be combined with a comprehensive land <a href="https://zimbabweland.wordpress.com/2017/03/13/land-audits-a-tricky-technical-and-political-challenge/">audit</a> to weed out those failing to produce, or those illegally holding more than one plot, alongside allocating leases and permits to those in land reform areas, and attracting investment into agriculture as the mainstay of an ailing economy.</p>
<p>Both compensation and audit processes will inevitably throw up <a href="https://zimbabweland.wordpress.com/2017/06/19/land-dispute-resolution-in-zimbabwe/">disputes</a>. A fair and transparent system for rapid resolution is required, including the establishment of an independent Land Tribunal. Alternative dispute resolution processes at a local level will hopefully avoid the dangers of the courts getting clogged with numerous cases.</p>
<p>An audit also has to be linked to land registration, and an effective, but low-cost, land information management system. Following registration, legal recognition and formal documentation of land ownership is essential, as <a href="https://zimbabweland.wordpress.com/2017/07/03/beyond-the-freehold-title-obsession-generating-land-tenure-security/">land tenure security</a> is vital for future investment.</p>
<h2>Many forms of tenure</h2>
<p>Some believe that the only solution is individual freehold titling, as land is otherwise seen as <a href="https://zimbabweland.wordpress.com/2012/02/10/dead-capital-de-sotos-fallacies-in-zimbabwe-3/">“dead capital”</a>. But this is mistaken, as <a href="https://zimbabweland.wordpress.com/2017/07/03/beyond-the-freehold-title-obsession-generating-land-tenure-security/">other forms of land tenure</a> can offer security, spurring investment, if the institutional, legal and political context is right. </p>
<p>As argued in 1994 by the Rukuni Commission, a major review of tenure policy in Zimbabwe, a <a href="http://www.swradioafrica.com/Documents/Sokwanele%20Why%20Zim%20needs%20to%20maintain%20a%20multi-form%20land%20tenure%20system.pdf">multi-form tenure</a> arrangement makes most sense. In some settings, communal tenure regimes are best, allowing flexibility and broad access. In others, a simple permit system can allow registration. In others, a leasehold arrangement can offer security and collateral, while regulations can offset land concentration and assure access for certain people. </p>
<p>Occasionally freehold title may be appropriate if a completely free market in land is required. However, <a href="https://theconversation.com/why-title-deeds-arent-the-solution-to-south-africas-land-tenure-problem-82098">titling schemes</a> are notoriously expensive to deliver, open up multiple disputes and are difficult to regulate to ensure more equitable ownership structures, including land ownership by women.</p>
<h2>Financing is essential</h2>
<p>To pay land taxes, mortgages or compensation payments, the land must be productive, and this requires finance. <a href="https://zimbabweland.wordpress.com/2017/07/10/getting-agriculture-moving-finance-and-credit/">Finance for agriculture</a> has been missing in recent years.</p>
<p>Great efforts have been made to ensure that the <a href="http://www.cfuzim.org/%7Ecfuzimb/images/99yearleasepam.pdf">99-year lease</a> for medium-scale commercial farm land (known as A2) is bankable, and cannot be withdrawn arbitrarily. It seems that, at last, the <a href="http://source.co.zw/2017/12/banks-say-agreement-in-place-to-accept-99-year-leases-as-collateral/">Zimbabwe Banking Association</a> is in agreement. This will allow the release of private bank finance, as land can be used as collateral.</p>
<p>For those without land leases, other types of collateral can also be used, including assets such as livestock, vehicles or buildings. Alternative sources of farm finance include commercial crop contracting, partnerships and joint ventures or government backed loans.</p>
<p>All these financing models have shown some promise in Zimbabwe in recent years, with <a href="https://zimbabweland.wordpress.com/2017/05/01/tobacco-and-contract-farming-in-zimbabwe/">crop contracting</a> at the core of the smallholder tobacco production success story. Contracting arrangements are also extending to <a href="https://zimbabweland.wordpress.com/2015/02/23/a-hot-commercial-success-growing-chili-in-the-eastern-highlands/">other crops</a>. Joint ventures, including partnerships with <a href="http://news.xinhuanet.com/english/2017-03/16/c_136134217.htm">Chinese investors</a> and <a href="https://frontera.net/news/africa/what-mnangagwa-needs-to-deliver-inauguration-promise-to-resurrect-zimbabwes-economy/">former commercial farmers</a>, have also been emerging in a number of under-capitalised medium-scale farms. </p>
<p>“Command agriculture” - a public-private input supply scheme - has been a flagship project led by the new president and the military. It has helped to revitalise maize and wheat production, especially on larger farms with irrigation infrastructure. Questions are however raised about <a href="https://zimbabweland.wordpress.com/2017/09/25/command-agriculture-and-the-politics-of-subsidies/">longer-term sustainability</a> of such subsidised financing.</p>
<h2>Sustainability is key</h2>
<p>Getting a new land administration system working is a huge task. <a href="https://zimbabweland.wordpress.com/2017/07/17/a-new-land-administration-system-for-zimbabwe/">All the elements have to work together</a> – from audit to valuation to compensation to dispute resolution to issuing land tenure documentation to financing – and back again. </p>
<p>And this is not just a one-off task to resolve the current mess. Land disputes will continue, audits will need to be repeated, and new leases and permits and sources of finance secured. For this reason any new system must be sustainable, both administratively and financially, and not reliant on external donor finance. Taxes, rents and compensation repayments need to be paid back into a land fund, which in turn supports the system for the long-term. </p>
<p>Testing this all out at a district level before rapidly rolling it out across the country is an urgent task for Zimbabwe’s new <a href="http://www.herald.co.zw/president-appoints-state-land-commission/">Land Commission</a>. Elaborating a new land administration system is long overdue. Such a system will help the country get over the post-land reform impasse, resolving outstanding land issues and getting much-needed investment flowing into the agriculture sector.</p>
<p>Only with this working well – as countries in <a href="https://zimbabweland.wordpress.com/2017/11/27/the-path-to-prosperity-starts-with-land-reform-says-the-economist/">East Asia</a> recognised when they undertook land reforms decades ago - will the full benefits of Zimbabwe’s land reform be realised.</p><img src="https://counter.theconversation.com/content/89387/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ian Scoones receives funding from the UK Economic and Social Research Council through the ESRC STEPS Centre at Sussex.</span></em></p>A new land administration system that responds to changed ownership patterns of Zimbabwe’s agricultural land is needed if the country is to harness its farming potential.Ian Scoones, Professorial Fellow, Institute of Development Studies, University of SussexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/680102016-11-04T14:15:53Z2016-11-04T14:15:53ZIs Uber ruling the beginning of the end for bogus self-employment?<figure><img src="https://images.theconversation.com/files/144561/original/image-20161104-25343-bfn69h.jpg?ixlib=rb-1.1.0&rect=5%2C0%2C1895%2C1141&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-268598132/stock-vector-revolution-poster-workers-raising-fists-with-text-its-time-to-make-a-change-vector.html?src=rEKfa0Vtl0fZUwfqL0r2hg-1-17">Seita/Shutterstock</a></span></figcaption></figure><p>When the much anticipated <a href="https://www.judiciary.gov.uk/wp-content/uploads/2016/10/aslam-and-farrar-v-uber-reasons-20161028.pdf">Uber judgment</a> on the self-employed status of two drivers came in, the victory was described by their union, the GMB, as “<a href="http://www.gmb.org.uk/newsroom/GMB-wins-uber-case">monumental</a>”. Respected commentators including the lawyers, Leigh Day, and the Guardian newspaper described the judgement as “<a href="http://www.lexology.com/library/detail.aspx?g=3ddede8f-4497-4acb-b99a-37da5509229f">historic</a>” and “<a href="https://www.theguardian.com/technology/2016/oct/28/uber-uk-tribunal-self-employed-status">a landmark</a>”. </p>
<p>There is no doubt that the judgement delivered by the London Central Employment Tribunal on October 28 was an advance in the campaign to provide workers’ rights to the hundreds of thousands that are wrongly classified by their de facto employers as “independent contractors” or “self-employed”. But this is no triumph. It is only a small victory in one battle that is part of a much larger and more protracted war. There are five principal reasons for this.</p>
<p>First, Uber will appeal to the Employment Appeal Tribunal, and if unsuccessful there, go to the Court of Appeal and maybe all the way to the Supreme Court. As its business model and, thus, profits, are fundamentally based upon using what the Employment Tribunal regarded as a “bogus” form of self-employment, it will expend a huge amount of energy and resources to overturn the ruling.</p>
<h2>Campaign plans</h2>
<p>There is a second, more quintessential reason. The nature of the Employment Tribunal decisions means that if many more Uber drivers wish to be availed of workers’ rights – minimum wage, sick pay, holidays, pension enrolment and so on – then they will have to take Employment Tribunal cases as well. Therefore, it was wrong for various commentators such as <a href="http://www.lexology.com/library/detail.aspx?g=37149b7d-3fec-47e6-85c9-b165e82e8ee3">lawyers</a> and <a href="http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2016/10/28/tribunal-rules-in-favour-of-uber-drivers-in-landmark-case.aspx">personnel professionals</a> to imply that the rest of Uber’s 40,000 drivers in Britain will be now suddenly be entitled to workers’ rights. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/144557/original/image-20161104-25343-k34e1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/144557/original/image-20161104-25343-k34e1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/144557/original/image-20161104-25343-k34e1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/144557/original/image-20161104-25343-k34e1q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/144557/original/image-20161104-25343-k34e1q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/144557/original/image-20161104-25343-k34e1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/144557/original/image-20161104-25343-k34e1q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/144557/original/image-20161104-25343-k34e1q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Shoot for the moon. Finding justice.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/stevec77/107868154/in/photolist-awRrL-egseeD-gHSY7g-ahY38n-asiq1f-h13vDR-6N9E3e-fvHbD4-CRCDz-5ej6LS-a8obRR-ruvWPt-nGE6fY-87gsKr-ot7y2w-afTasu-eFqRqz-bVX5dF-df4vu5-byYC6j-df4Dik-afaBTj-fvH5Yk-4xBsjc-49HGS-gHSfgW-eFwZ3Q-afaCFj-4bFztC-ajjxMq-4dELvS-4dAJu4-etjK2-4dMprK-pij2jm-pS9WnQ-5QY9bH-61qvMQ-bFEffX-5yvatZ-cdZyKj-bAKFRm-hoo6q1-afaC1J-egy1by-4dENKy-5uXSRH-7LxCKN-4xFCqN-qhxgxG">Steve Calcott/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span>
</figcaption>
</figure>
<p>Sure, the Tribunal’s finding does intimate that idea but it is no more than that. The ruling is not binding upon how Uber treats its other drivers – something Uber itself is <a href="http://www.standard.co.uk/news/uk/uber-tells-drivers-tribunal-ruling-on-workers-rights-doesnt-apply-to-them-a3382686.html">clearly aware of</a>. The other drivers were not joint plaintiffs in the case. The only way the GMB union can make Uber cave in on all of its drivers is not only to take many, many more ultimately successful cases (<a href="https://www.theguardian.com/technology/2016/nov/04/uber-facing-hundreds-more-claims-from-drivers-for-back-pay">as it seem intent upon doing</a>), but also to use various non-legal avenues to pressurise Uber into changing its ways.</p>
<p>Organising consumer boycotts, investor strikes, industrial action <a href="https://www.theguardian.com/business/2016/aug/15/deliveroo-workers-strike-again-over-new-pay-structure">of the Deliveroo sort</a> are all viable options. This would be most effective if deployed, along with the legal means, against Uber in a form of pincer movement.</p>
<p>Another important tool available to the GMB at the moment is to use the statements of the prime minister, Theresa May, concerning <a href="https://www.ft.com/content/ffb25e84-8af2-11e6-8aa5-f79f5696c731">an economy that “works for all”</a>. If it can get other Employment Tribunals to see which way the political wind is now blowing, this will increase its chances of success. </p>
<h2>One case at a time</h2>
<p>A third reason to avoid jubilation is that even a final victory after appeal in the Uber case would not automatically mean success for the host of other self-employed workers <a href="https://www.theguardian.com/technology/2016/jul/19/uber-drivers-court-tribunal-self-employed-uk-employment-law">bringing similar claims</a> against the likes of Addison Lee, Excel, City Sprint and eCourier and backed by their GMB and IWGB unions – or any others that might come in the future elsewhere. This is because each is treated in law as an individual case. Even where there are class actions of multiple plaintiffs in a coordinated series of cases, the judgements only apply in law to them. </p>
<p>So the <a href="https://www.theguardian.com/money/2016/jul/30/job-pay-workers-gig-economy">plaintiffs’ cases</a> against Addison Lee, Excel, City Sprint and eCourier will have to pass the same stringent tests that were applied in the Uber case and show that in different settings that their work – and the organisation of it – was effectively controlled in a conventional managerial method. Moreover, cases take time. The process of gaining the Uber ruling started in the summer of 2015.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/144559/original/image-20161104-25339-1nr5eo1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/144559/original/image-20161104-25339-1nr5eo1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/144559/original/image-20161104-25339-1nr5eo1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/144559/original/image-20161104-25339-1nr5eo1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/144559/original/image-20161104-25339-1nr5eo1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/144559/original/image-20161104-25339-1nr5eo1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/144559/original/image-20161104-25339-1nr5eo1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/144559/original/image-20161104-25339-1nr5eo1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Next cab off the rank?</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/everydaylifemodern/456816708/in/photolist-JZEEF-GnocP-GniG9-96jMS-jaECL-33gPS-i85qW-i8586-uhAVX-4Dnusw">observista/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span>
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</figure>
<p>Fourth, even if those other cases are successful, Employment Tribunal rulings are no substitute for a legislative solution. Ultimately, case law precedents can be undermined, overturned and superseded by other case law precedents. Legislation – along with robust enforcement – is the only way to outlaw the bogus use of self-employment. Anything else means that the war to do so means fighting on a piecemeal, incomplete basis. </p>
<p>Fifth, and crucially, employers will undoubtedly find new ways to introduce and embed self-employment. We have seen it already in the construction industry. New rules in 2014 sought to stop employment agencies falsely providing workers on a self-employed basis, but all that happened was that workers were shifted over to so-called “umbrella” companies where workers can be employed legally on a temporary basis and many on zero hours contracts. The practice is <a href="https://www.theguardian.com/money/2016/oct/21/temporary-workers-umbrella-companies-extra-costs-dodging-ni-cutting-rights-supply-teachers">now spreading elsewhere</a>. As employers have both the means and the motivation, they will develop new methods to get around any legal challenges. Again, this flags up the need for legislation to provide a blanket ban on bogus self-employment.</p>
<p>The two Uber plaintiffs, James Farrar and Yaseen Aslam, along with their union, the GMB, are to be congratulated on pushing open the door to the legal possibility that self-employed workers might gain worker rights. But it will take much more than this to turn the possibility into a probability, let alone an actuality. Political and legislative change is needed to make sure that their victory is neither Pyrrhic nor temporary. Unless that happens, the Uber ruling will not even be the end of the beginning for bogus self-employment.</p><img src="https://counter.theconversation.com/content/68010/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gregor Gall is the editor of Scottish Left Review and the director of the Jimmy Reid Foundation.</span></em></p>Ride-sharing app Uber is facing a new wave of legal claims after a landmark ruling on work conditions. But any triumphalism is deeply premature.Gregor Gall, Professor of Industrial Relations, University of BradfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/506242016-01-11T15:45:44Z2016-01-11T15:45:44ZSecret evidence: coming to an employment tribunal near you<figure><img src="https://images.theconversation.com/files/107173/original/image-20160104-28997-swd7vh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Secret evidence can leave employees in the dark.</span> <span class="attribution"><a class="source" href="https://www.flickr.com/photos/salowphotography/5641137120/in/photolist-8kPZNN-65RLba-72TyzV-5ajPtW-9tr9r-7rcGLA-2Ey8Ck-Rka7X-9GZYt6-4Yd72x-8JU33R-5ypVap-3X2xXU-46W6WL-9AuiwQ-7DCXSg-98YWb-nUj1u-6X6Lif-6X2JGF-6X6L71-6X2L6z-6X2LfK-6X2JxB-6X6KRu-6X2KUi-6X6KzA-6X2KKB-aVAtG-7vuaGQ-ptarz3-cg2m3C-dDiAXU-4eEupy-7cuuLS-7mFGFF-kmm34w-kmjrMX-cHp6z-5Bw4dq-2Ks7bv-25Efu-oU4KD-d6pbr-5wy2ew-6dBkZr-7pKsHf-4Fhork-bQZinc-idZkJ">Nicole Salow</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span></figcaption></figure><p>Imagine being dismissed from your job without being told of the reasons why and without being provided with any evidence of wrongdoing. This Kafka-esque scenario feels like a tale from decades ago and deep behind the iron curtain – but it is happening in Britain, right now. In fact, it is happening more and more. </p>
<p>One recent claim for discrimination and unfair dismissal helps illuminate the story. <a href="https://www.judiciary.gov.uk/judgments/kiani-v-the-secretary-of-state-for-the-home-department">It failed after a seven year legal action</a>.</p>
<p>Afzaal Ahmad Kiani, was suspended from duty as an immigration officer at the Home Office in 2008 pending a review of his security vetting status. He was later dismissed on the basis that he no longer met the requirements set out in government vetting policy. However, no substantial explanation for this has ever been revealed. </p>
<p>Because national security implications were raised, evidence can lawfully be withheld and proceedings can be held in secret, that is, without the presence of the person or their legal representatives. This is known as “closed material procedure”. This is a mechanism for dealing with cases where a government body asserts that information is too sensitive to disclose. Rather than a rarity, this aspect of the British legal system is becoming a recurring theme. </p>
<h2>The legal framework</h2>
<p>Since 1997, more than 15 pieces of legislation have been passed <a href="http://www.justice.gov.uk/courts/procedure-rules/civil/">which enable this to happen</a> covering areas including parole board hearings, bail hearings, inquests, asset freezing cases and cases heard before The Special Immigration Appeals Commission. The <a href="http://www.legislation.gov.uk/ukpga/2013/18/contents/enacted">Justice and Security Act 2013</a> extended this practice to general civil proceedings. </p>
<p>And amendments to the <a href="http://www.legislation.gov.uk/uksi/2013/1237/schedule/1/made">Employment Tribunals Act 1996</a> have provided a statutory framework for “secret” employment tribunals. So this would apply to you if you were working in a passport office in Portsmouth, a job centre in Slough, or indeed any civil service role.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/107174/original/image-20160104-28969-lxi0t5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The judiciary had been leaning towards leniency.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/stvphotos/9011398158/in/photolist-hMsTab-hMsnyB-Mab43-rUVAAh-Mahq8-ex5gu-9XmTk-9XmTs-ex4Np-9Xn4h-9XmTu-9XmTw-9XmTp-ex5sk-ex53C-ex4B5-ex4pb-ex4fc-MaEKe-MaE66-Maijn-Mazdu-74KxRe-9oi2Ey-8NvxCd-eJiLHL-p1WdHN-2eFC6-86khpe-5wYtoX-6bN59-fPpgtY-bEiVmu-2eQ2c-biZkKX-2fcKw9-2f8haK-2f7M4H-2fcLZj-6L3w1v-89zb7A-2Dd5pm">STV Photos</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
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</figure>
<p>The concession to a worker who might find themselves facing such a tribunal comes with the special advocate, a government appointed lawyer who represents the person’s interests in relation to material that is kept secret from that person. However, the special advocate cannot communicate to that person or their legal representatives any details of that material, nor can they take instructions with regard to the nature of the material. Hence there is no opportunity to question the validity of any of the information or offer a defence against any allegations of wrongdoing.</p>
<p>Clearly, these procedures raise issues of principles of fundamental concerns such as the right to a fair hearing provided <a href="http://www.equalityhumanrights.com/sites/default/files/documents/humanrights/hrr_article_6.pdf">under the European Convention of Human Rights</a>, and <a href="http://www.eurofound.europa.eu/observatories/eurwork/comparative-information/overview-of-the-implementation-of-the-framework-equal">equal treatment directives under EU law</a>. Numerous legal challenges have been raised. </p>
<h2>Getting the gist</h2>
<p><a href="http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090610/af-1.htm">In a 2009 case</a> it was held that the right to a fair hearing under the Convention would not be violated providing that at least a minimum amount of information regarding allegations was made available. This has become known as “gisting” in legal circles and although <a href="http://www.employmentcasesupdate.co.uk/site.aspx?i=ed8773">a 2011 case</a> deemed that this protection was not an absolute requirement, it appeared that the judiciary favoured at least a modicum of fairness. </p>
<p><a href="http://curia.europa.eu/jcms/upload/docs/application/pdf/2013-06/cp130070en.pdf">In a case from 2013</a> it was ruled by the European Court of Justice that in the interest of procedural fairness, the essence of the allegations should be provided. Further, national courts should strike a balance between the right to effective judicial protection guaranteed by the Charter of Fundamental Rights under EU law and the requirements of state security. Hence some inroads in the interests of fundamental fairness, albeit marginal, were achieved.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=407&fit=crop&dpr=1 600w, https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=407&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=407&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=512&fit=crop&dpr=1 754w, https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=512&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/107175/original/image-20160104-28997-n0zf7o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=512&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Not at liberty to say…</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/81952353@N08/7501604936/in/photolist-cqTFN9-46pNk8-apYuGP-6reqf2-8FKJg2-fL3HGq-4DgrrU-7HfPF-7HfPG-9z5Fp5-ykFr8i-6PEME5-6MtL5q-c57o9b-dcknz7-6xSvnA-c3Ktch-7prkJu-c3KAXq-y7uKQ2-3HvQHS-fqVcrv-4iqpA7-6hCMDg-CYoQc-5BBJF8-e7WR73-dvdGDt-dvjkej-dvdc1p-dvdbUT-dvdKn6-dviLQS-dvdbNF-dvdGNv-o9HnYk-nY5gDG-ohkFbZ-hu9Bja-dvjhHQ-dvdbJ6-dviM5o-dviLMW-dv4s7Q-dvjhFd-dviM2G-dvdbX6-dvdKr8-dviLQG-dvjkbE">Mr.Kitsadakron Pongha</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>A deeply concerning issue of the Kiani case is that he was not allowed even the “gist” of the case against him. The court of appeal ruled that there is a distinction between interference with free movement or deprivation of liberty cases, and employment rights. Thus in the context of employment tribunals, even a minimum amount of information does not need to be provided and the court’s duty to balance competing interests of state security and a fair hearing is satisfied by the special advocate system.</p>
<p>In other words, if you’re up before an employment tribunal and it is decided the information may be sensitive, then you might not even get the “gist” of allegations if your liberty is not at stake. </p>
<h2>Desperately seeking fairness</h2>
<p>This case denotes a disturbing twist in the tale. It seems that judicial inclination (as evidenced in the 2009 case above) to reason and interpret in favour of softening the sledgehammer effect of “closed material” procedures has taken a U-turn. </p>
<p>What’s more, faith in the special advocate system may be misplaced. The role of the special advocate is limited. Communication with the individual or their representative with regard to undisclosed material is forbidden. Therefore the truth of any allegations cannot be questioned.</p>
<p>It is noteworthy that in the same year as the closed material procedure was extended to include employment tribunals, a significant number of special advocates <a href="http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/157/15709.htm">resigned in protest</a> at the prohibition of communication with the person in question. This inherently interferes with their function of protecting their interests and highlights the unfairness of the system. The implications for the future of the fairness of such employment tribunals are ominous. </p>
<p>Shazia Khan of Bindmans LLP who represented Kiani condemned the practice as discriminatory and <a href="http://www.bindmans.com/news-and-events/news-article/Court-of-appeal-refused-to-order-gisting-of-evidence">emphasised the devastating effect</a> that this seven-year battle has had on her client. She has also warned against the possibility of an increase in the frequency of invoking the “closed material procedures” given the acute lack of transparency or fairness.</p>
<p>It is disquieting to reflect that this may denote an increased propensity to invoke “secret” procedures in the name of expediency. Where once the judiciary expressed a willingness to defy the most draconian aspects and guarantee at least a kernel of hope, in this case that prospect has been abandoned.</p><img src="https://counter.theconversation.com/content/50624/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gilliane Williams does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Sacked from your job and never told why. Is this the new normal for some workers in Britain?Gilliane Williams, Senior Lecturer in Law, University of BrightonLicensed as Creative Commons – attribution, no derivatives.