The Weekly Round-up: Offensive weapons sent to Ukraine, war crimes, gay conversion therapy and Afghan immigrants
4 April 2022
In the news:
The United Kingdom and other NATO allies have begun ramping up arms deliveries to Ukraine to assist them in the ongoing conflict against Russia. Deliveries of hitherto purely ‘defensive’ weapons systems will now be bolstered by armoured vehicles and long-range artillery. The UK has also provided cutting edge portable Starstreak air defence systems to Ukraine, with a verified report on Saturday confirming that a Russian helicopter had already been destroyed by the system. The Starstreak system is developed by Belfast-based Thales Air Defence Limited, which specialises in short-range air defence weapons. Starstreak launchers can be shoulder-mounted, attached to a vehicle, or fired from a ground launcher, but the UK has only sent units of the shoulder-mounted version to aid rapid deployment. These weapons follow lethal aid already sent to Ukraine by the UK, including over 4,000 Swedish made NLAWs and some US produced Javelin missiles, both powerful anti-tank weapons capable of destroying heavily armoured Russian main battle tanks.
The Ukrainian military has been using these weapons as soon as they arrive, with part-time weapons trackers using a strict verification methodology and only open-source data able to document over 2,000 Russian vehicles destroyed, including 331 tanks and 235 armoured fighting vehicles. If Russian soldiers were inside vehicles hit by any of the aforementioned weapons systems, they died instantly.
Interviewing with the Guardian on Thursday, Philippe Sands, a senior barrister at Matrix Chambers and author of the successful East West Street on the origins of the legal definitions of genocide and crimes against humanity stated that a prosecution against Russian leaders for the crime of aggression, a less well-known war crime, could be easily evidenced if a tribunal is successfully created. The benefit of prosecuting for aggression, rather than solely genocide and crimes against humanity, is that the latter crimes are harder to pin on more senior leadership, with the buck often only (provably) stopping at ‘mid-level folk’. The day before, Michelle Bachelet, the UN High Commissioner for Human Rights and ex-president of Chile stated that Russian actions in Ukraine, including airstrikes and shelling on civilian targets and hospitals and the use of cluster munitions in civilian-populated areas may amount to war crimes.
“The massive destruction of civilian objects and the high number of civilian casualties strongly indicate that the fundamental principles of distinction, proportionality and precaution have not been sufficiently adhered to,”
“In the besieged city of Mariupol, people are living in sheer terror.”
On Sunday, Ukraine accused Russia of a massacre in the town of Bucha in the Kyiv region during their retreat from the successful Ukrainian counteroffensive, with images of bound dead bodies emerging on the internet.
In other news:
- A Metropolitan police officer has been charged with GBH after using a tazer on a fleeing black British man, Jordan Walker-Brown, who was left paralysed from the chest down.
- The government has backtracked from its abandonment of plans to outlaw conversion therapy, a form of ‘therapy’ whereby individuals are subjected to psychological techniques to change their sexuality or gender. The announcement of plans to abandon the legislation was met with massive backlash, prompting the government to U-turn a second time, but only in relation to the proposed ban on gay conversion therapy and not transgender conversion therapy.
- There has been a ‘steady exodus’ of lawyers and organisations from the legal aid sector in the last ten years, with the number of organisations holding civil or criminal legal aid contracts almost halving. While the remaining lawyers are a motivated workforce who are happy in their career choice, the lack of investment in the sector has created barriers for those seeking to enter the profession, difficulties retaining staff and low fees and rates, poorly reflecting the complexity or quantity of the work done. This ultimately limits the types and quantity of cases that can be taken on timeously for those without enough money of their own to afford justice, according to the recent findings of the legal aid census.
In the courts:
- In B (A Child), Re (Adequacy of Reasons)  EWCA Civ 407, the Court of Appeal overturned a decision to make a placement order for an 18-month-old boy when it found that judicial analysis at first instance had fallen significantly short. Both Sir Andrew McFarlane, President of the Family Division, and Peter Jackson LJ noted a lacking structure in the judgment and a failure to consider the evidence given by the child’s parents on their changed capacity to care for the child. Furthermore, the available options for the child’s care, including both adoption and placement with parents were not weighed against one another to discover the child’s best interests in a clear and balanced way.
- In JZ, R (On the Application Of) v Secretary of State for Foreign, Commonwealth and Development Affairs & Ors  EWHC 771, the High Court granted interim relief to an Afghan ex-judge (‘JZ’), who is currently in hiding in Afghanistan after he and his family failed to escape the country in Operation Pitting. JZ was accepted to have assisted the US/UK mission in Afghanistan and to have convicted Taliban members. The Home Secretary had rejected JZ’s application to waive the requirements for biometric data on the basis that he could cross Afghanistan to provide biometric data in Pakistan, despite the FCDO’s own advice that ‘crossing Afghanistan is extremely dangerous’, and that JZ is being actively pursued by the Taliban.
- In Director of Public Prosecutions v Cuciurean  EWHC 736, the High Court allowed an appeal by the DPP against the acquittal of the Respondent for aggravated trespass, after he dug and remained in a tunnel in land being used to construct HS2. The Supreme Court decision in DPP v. Ziegler  UKSC 23;  3 WLR 179 had raised questions about the requirement for the prosecution to prove whether a particular prosecution was a proportionate interference with the Article 10 and 11 rights of a defendant. The Court determined that it was not required for the prosecution to consider article 10 and 11 rights in all cases, and that this was not the requirement laid down in Ziegler. It was questionable whether article 10 and 11 rights were in fact engaged by the case, considering that it was not public land and it was not well-established that articles 10 and 11 were engaged where a defendant acted as in the instant case.
- The case of QH (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 421 also details proceedings that engaged Convention rights, surrounding the unlawful removal of a mentally ill Afghan child from the United Kingdom, after months of confusion surrounding the Appellant’s true age and severe mismanagement by all parties. The court awarded costs to the Appellant alongside both Francovich damages (for breach of Article 27 of the Dublin III Regulation that requires a ‘reasonable time’ for an applicant to exercise a right to an effective remedy against a decision to remove him, when the Appellant was given only a single weekday’s notice before he was removed to Germany), and damages under the Human Rights Act for breach of his Article 8 right to family life. The Appellant was removed from the United Kingdom after moving in with his uncle who had been a citizen here for 14 years. The case was sent to the County Court and settlement was encouraged.
On the UKHRB:
- 1COR’s Rosalind English considers the decision of the Administrative Court in R. (on the application of Friends of the Earth Ltd) v Secretary of State for International Trade/Export Credits Guarantee Department (UK Export Finance)  EWHC 568 (Admin)