Horsehair Wigs

John Reynolds

On the programme this month, we talk to Dr. John Reynolds of Maynooth University, who discusses the reaction of states to the International Criminal Court (ICC) arrest warrants issued for Israeli Prime Minister Benjamin Netanyahu and the country’s former defence minister Yoav Gallant over suspected war crimes in Gaza.

There’s been a mixed reaction to the move by the ICC. States signed up to the court are obliged to arrest both men on their territory, however there’ve been statements to suggest otherwise. John says that’s because law and the legal system isn’t insulated from geopolitics, imperialism or war economies: “The ICC, to take that as example, is not a panacea and we shouldn’t expect it to be. We are talking about major entrenched imperial power relations here… it’s one of many political battlegrounds and arenas of struggle.”

The US, which is not a member of the ICC, has a contentious relationship with the court. John talks about these historical difficulties and the move by the US to sanction ICC officials in protest over the latest arrest warrants: “Because there’s a question of the west’s own internal self-reflection; What does this mean for us if Israeli leaders can be put on trial?’ And this speaks most directly and explicitly to the US position,” says John.

After accusations going back some time by African states that the ICC is guilty of selective prosecutions of cases originating in Africa, this is the first time that the court has issued a warrant for a leader of a Western ally, in Netanyahu, which John reflects on. He says there is still a narrative, among the states who oppose the arrest warrants that, “… this is wrong from the perspective of the legitimacy of the court because we can’t create an equivalent between elected leaders of a democratic state, like Israel… we can’t equate them with these African warlords or non-state terror groups that we see as threats to our world view.”

John says that Palestinian groups are pushing for an extension of the crimes being prosecuted, which currently include the war crime of starvation, as a method of warfare, and the crimes against humanity of murder, persecution and other inhumane acts.

IRLI, as a supporter of national and international courts and judicial independence, believes strongly in the authority of the ICC and the responsibility of states signed up to the court to abide by its principles.

Presented and produced by Evelyn McClafferty

With thanks to our donors: Irish Aid.

Note: The views and opinions expressed in this episode do not necessarily represent those of IRLI or Irish Aid.

 

Nikki Reisch

The Director of the Climate and Energy Program at the Center for International Environmental Law, Nikki Reisch is our guest on the show this month. Niki talks about the advisory opinion expected this year from the International Court of Justice (ICJ) on the legal consequences for governments concerning climate change.

The pending opinion comes on the back of two weeks of climate hearings in The Hague in December. In the largest case in its history, the ICJ heard from almost 100 countries and communities who delivered their testimonies on climate change. Nikki was there and described the atmosphere in the court as hugely moving: “The countries that are literally losing ground to the ravages of climate change showed time and again, through this process, that they not only have the moral high-ground, but the legal high-ground.”

The case at the ICJ was led by the Pacific Island of Vanuatu and brought about as a result of the efforts of twenty-seven law students from the University of the South Pacific. Pacific island communities are among those on the frontline of climate change, once living in harmony with the ocean, now threatened by rising sea levels caused largely by warming global temperatures, caused largely as a result of the burning of fossil fuels. Kicking off proceedings, Vanuatu’s special envoy for climate change and environment, Mr. Ralph Regenvanu said responsibility for the climate crisis lay squarely with, “a handful of readily identifiable states,” that had produced the vast majority of greenhouse gas emissions but stood to lose the least from the impacts. Nikki says there was a very clarion call from countries around the world to reject efforts to give polluters a free pass and to instead carve out their conduct from long-standing fundamental principles of international law, saying the push, “was really resounding.” According to Nikki: “The whole world knows what caused this crisis and which countries bear the most responsibility and they’re simply asking for the court to affirm that, yes indeed, that conduct was in violation of legal obligations then and now, and that there is a duty to remedy and repair that harm.”

A stark division emerged during the two weeks at the ICJ, during which countries like the US, Britain, Germany and France were heavily criticised for their stance and accused of talking down ambitious climate action. For example - the world’s largest historic greenhouse gas emitter, the US, its representative at the talks Margaret Taylor - its then legal adviser at the state department - said the current UN climate change regime, “embodies the clearest, most specific, and the most current expression of states’ consent to be bound by international law in respect of climate change,” adding, “any other legal obligations relating to climate change mitigation identified by the court should be interpreted consistently with the obligations states have under this treaty regime.” She was talking about treaties agreed at UN climate change talks, known as the Conference of the Parties (COP), and the historic agreement reached by states in 2015, known as the Paris Agreement. That’s when states pledged to keep the warming of the planet below 1.5°C degrees. And although, since coming into his second term in office, in January 2025, US President Donald Trump has signed an executive order to withdraw the US from the Paris Agreement, Nikki argues that the issue at stake at the ICJ goes well beyond the Paris Agreement: “It’s important to clarify that countries’ legal obligations to prevent, minimise and remedy that impacts of climate change neither starts nor ends with the Paris Agreement. Those agreements (COP agreements), they were adopted under the backdrop of human rights law and long-standing international law. One of the fundamental tenants of inter-state relations in respect of sovereignty is that one country can’t undertake activities or allow activities on its territory that would harm another. And that it was, in fact, in response to those long-standing principles, not in spite of them or to replace or displace them, that the climate treaties were agreed. But in fact, nothing in those treaties cuts off the application of those laws or suggests that they replace or supplant existing obligations.”

Ultimately, Nikki believes that what was heard at the ICJ hearings will offer huge hope: “The knowledge that people can unite together, to not only stand up against big polluters and powers with vested interest, but actually influence the course of history and use the law for justice, not for advantage and self-interest. And I think that’s really part of what makes this a watershed moment for human rights, climate justice and accountability.”

Presented and produced by Evelyn McClafferty

With thanks to our donors: Irish Aid.

Note: The views and opinions expressed in this episode do not necessarily represent those of IRLI or Irish Aid.

Pat de Brún

Our podcast this month is a personal and professional tribute to a dear former Irish Rule of Law International colleague – international criminal and human rights lawyer James Douglas, who sadly died earlier this year. One of his best friends and fellow human rights lawyer, Pat de Brún reflects on his life and work. Pat is Head of Big Tech Accountability & Deputy Director of Amnesty Tech at Amnesty International.

James, from Dublin in Ireland, started his career with an internship at the Khmer Rouge Tribunal, where he spent almost five years working as a lawyer and an investigator. He then joined an organisation, called Equitable Cambodia, a land rights organisation, with a heavy focus on community engagement. Afterwards, and a brief period working with the UN Office of the High Commissioner of Human Rights in South Korea, he began working with Victim Advocates International, which enabled him to merge his two primary interests: community engagement and international criminal law. He mainly worked with Rohingya survivors of the 2017 clearance operations, assisting them with devising advocacy and legal strategies. James joined IRLI during Covid-19 in October 2020 and worked as Director of Programmes and also served as Executive Director.

We miss him deeply.

Presented and produced by Evelyn McClafferty.

With thanks to our donors: Irish Aid.

Note: The views and opinions expressed in this episode do not necessarily represent those of IRLI or Irish Aid.

Deborah Ruiz Verduzco

The Executive Director of the Trust Fund for Victims (TFV) at the International Criminal Court (ICC), Deborah Ruiz Verduzco is our guest on the show this month.

The Trust Fund for Victims at the ICC is a central part of the court’s mandate: the reparative justice pillar of the court, giving effect to victims’ right to redress. But the court faces multiple challenges: “The principle is that convicted persons will be paying for these reparations and the practice has been that in the five cases to date, none of the convicted persons have had the resources for this,” says Verduzco. This has meant that states that have signed up to the court, founded by the Rome Statute, are now, unexpectedly, being asked to contribute to the fund, says Verduzco, “States have established the court and believe that this (fund) is important but they never expected themselves to be paying for this. So now that they need to pay for this, we need to create policy and logics to access those resources. We, of course, need to also work with the private sector… but ultimately this is a matter of the rule of law and, ultimately, a matter for states.”

In July of this year, the Trust Fund for Victims issued its first urgent funding appeal of €5 million, to launch a reparation programme for victims of Dominic Ongwen, a former child soldier-turned-Ugandan rebel commander, sentenced to 25 years in prison for crimes, including murder, rapes and forced pregnancy. ICC judges awarded 50,000 of his victims more than €52 million in reparations, an order rivalling the entire budget of the Office of the ICC Prosecutor in 2023 (€59,340,000). Ongwen, himself, has no money and cannot pay any of it. Deborah talks about the appeal and the substantial ICC order, “How much of that money have we received? At the moment the pledge has not been fulfilled. We are in the process of dialogue with states; they are interested, they want to understand – we are speaking of a new era of giving money for different purposes, so we are really at the beginning of that process. But I am confident, I am hopeful that this will be fulfilled,” she says.

But the fund doesn’t deal exclusively in cash. “We are not talking about, necessarily, always or if at all money. But we are looking at what the harm is and what measures can be taken to repair that harm, always in a symbolic manner,” Deborah outlines.

In this episode, we get great insight into the workings of the fund, a hugely multifaceted arm of the ICC. It’s a fund heavily criticised for failing to deliver on its mandate, criticisms Verduzco addresses.

Presented and produced by Evelyn McClafferty.

With thanks to our donors: Irish Aid.

Note: The views and opinions expressed in this episode do not necessarily represent those of IRLI or Irish Aid.

Seán Columb

Our guest this month is Dr Seán Columb, who for over 10 years has been investigating the illegal organ trade.

Dr Columb is a legal academic - a senior lecturer in law at the School of Law and Social Justice at the University of Liverpool. Since 2014, he has spoken to over 40 people from countries including Sudan, South Sudan and Eritrea, who were fleeing conflict or the legacy of conflict, and who sold a kidney out of economic necessity.

Selling or buying an organ is illegal anywhere in the world, except for Iran. It’s estimated that 10% of organs for transplantation come from illegal sources. The true number is likely higher, according to Seán, who says most cases go unreported because of the precarious legal status of the donors. Most of Seán’s research took place in Egypt, where he says people were targeted by criminal groups because of their vulnerable status as asylum seekers, refugees or undocumented migrants. Seán explains that most were not paid what they had been promised. He believes that these people have been doubly victimised, as illegal migrants and organ sellers.

The black market for organs includes kidneys, corneas and liver lobes. Seán’s research relates to the buying and selling of kidneys. He believes there is a rising demand for kidneys partly because of the spread of so-called diseases of affluence – diabetes, hypertension, obesity – and the subsequent rise in kidney failure. He also attributes the increase to the privatisation of healthcare.

From his research, Seán wanted to learn about how the trade in organs is organised, and how brokers rationalise what they are doing. Seán says some of the brokers are, indeed, former donors themselves. While doctors who carry out the transplants turn a blind eye to what is happening, according to Seán.

From a legal perspective, Seán is interested in how law under certain circumstances can actually generate violence. He says, in many circumstances, this is an unintended consequence of laws and policies that are not really thought out, or understood from a human perspective. He says the focus of criminal investigations should be on the brokers, the personnel in the hospital chains performing the surgeries, including the doctors. Seán says to get good intel on the trade, it should be decriminalised, but by this he does not mean a regulated industry, rather Seán believes that it should be made clear that donors and recipients should not be prosecuted.

Presented and produced by Evelyn McClafferty.

With thanks to our donors: Irish Aid.

Note: The views and opinions expressed in this episode do not necessarily represent those of IRLI or Irish Aid.

Raphael Heffron

Governments and energy companies will be held legally responsible for past decisions when it comes to the energy sector, as justice takes centre stage. That’s the argument from this month’s guest - Irish Professor, Raphael Heffron.

Professor Heffron is a Professor in Energy Law, Energy Justice and the Social Contract at the Université de Pau et des Pays de l’Adour, Pau, France. He’s also a qualified Barrister-at-Law. His work focuses on achieving a sustainable and just transition to a low-carbon energy economy, and combines a mix of governance, policy and economics. He has published over 200 publications of different types and is one of the most cited scholars in his field worldwide for energy law, energy justice and the just energy transition.

The just energy transition is an approach to the energy sector, moving away from a sector that has had economic principles at heart, and arguably a cosy relationship with fossil fuel companies. The just transition is rooted in economic and societal fairness, using eco-friendly technologies, limiting pollution and the further warming of our planet. Professor Heffron says, “In this huge sector in our economy, we are trying to ensure that we have a level of justice, via the rule of law, which we haven’t had before… With the knowledge that is out there today, you have to have a far greater basis for your decision-making, if you’re involved in the energy sector and that’s whether you are a policy maker, working in an energy company or a leader of a civil society organisation.”

Professor Heffron and his colleagues have published an article in the journal Nature Energy. In it, they say that the role of justice is set to shift accountability and responsibility in the energy sector to governments and energy companies. Both governments and energy companies have traditionally evaded responsibility and according to one study from the International Monetary Fund, the fossil fuel industry gets subsidies of 11 million dollars a minute, and yet is responsible for three-quarters of greenhouse gas emissions globally. Mr. Heffron argues that energy decision-makers today will be held legally accountable for past decisions and that this will influence how decisions are now made. He makes a case for “milestone reports” in which stakeholders can mark their progress towards climate goals and believes this will ensure that justice is ensured, tracked and climate pledges are achieved, with fairness at the heart of them.

He discusses the recent case at the European Court of Human Rights in which 2,000 Swiss seniors won a significant ruling on holding their government accountable for addressing climate change. It ruled that that Switzerland failed to implement sufficient climate policies – violating the women’s human rights. However, now, the Swiss parliament has rejected the ruling saying it has a climate change strategy and with right-wing politicians criticising what they see as an overreach by “foreign judges”. Heffron responds by saying: “Maybe the fossil fuel industry has overreached into our economy for too long…” He also discusses ISDS – a controversial legal investment protection mechanism, which we have discussed with a previous guest on the podcast, believing the area is ripe for reform.

Presented and produced by Evelyn McClafferty.

With thanks to our donors: Irish Aid.

Note: The views and opinions expressed in this episode do not necessarily represent those of IRLI or Irish Aid.

Stéphanie Caligara

It’s been dubbed litigation terrorism – an investor protection regime that’s stalling climate action and instead paying polluters. On this episode of Horsehair Wigs, we’re talking about investor state dispute settlement clauses or ISDS mechanisms with Stéphanie Caligara, a French qualified lawyer and consultant with the Global Legal Action Network. Stéphanie focuses on environmental and climate litigation, human rights and corporate accountability. She also has experience in investment treaty arbitration.

Stephanie has been watching carefully a situation unfold in Colombia where Glencore, the Swiss multinational mining company, is using the Switzerland-Colombia bilateral investment treaty – and the ISDS mechanism contained within it - to demand compensation money from the Colombian government for not being able to carry out all its mining activities at the largest coal mine in Latin America. The El Cerrejón mine has been marred by alleged human and environmental abuses, with multiple indigenous groups and people in the region affected. The mine accounts for .7% of Colombia’s GDP, and thousands of direct and indirect jobs.

Stephanie explains what ISDS is and talks about the various claims by Glencore against Colombia. She speaks about people in the region of the mine feeling like they’re being hostage by Glencore, while the Colombian government has signalled its intention to move away from fossil fuels.

Globally, the fossil fuel and mining industries have already been awarded over 100 billion dollars as a result of ISDS mechanisms, leaving a trail of destruction in their wake. Stephanie talks about how the investment protections are having a “chilling effect” on states and often lead to a dilution or a stalling of climate policy. ISDS was originally designed to protect investors in countries where the judiciary of a country was not independent of state. But Stephanie says she doesn’t believe there is merit for such a clause when it comes to fossil fuel extraction and efforts by government to incorporate greener policies.

One country that has recently been successful in facing down the ISDS mechanism is Romania. It defeated a closely watched investor state dispute settlement case worth US$4.4 billion plus interest brought by a Canadian mining company over the denial of an environmental permit for a gold and silver project in an area, now recognised as a UNESCO world heritage site. Stephanie talks about the case and how it can serve as a beacon of hope for other states beholden to ISDS cases.

Presented and produced by Evelyn McClafferty.

With thanks to our donors: Irish Aid.

Note: The views and opinions expressed in this episode do not necessarily represent those of IRLI or Irish Aid.

Rhea Kneifati

We speak with Rhea Kneifati on this month’s show – a legal expert, specialising in sexual and gender-based investigations. She talks about the significant problem of the disappearance of women in Mexico, where there are currently 27,000 missing women.

Rhea was deployed by Justice Rapid Response - an NGO with a roster of experts investigating international crimes and serious human rights violations – to work with a Mexican strategic human rights litigation organisation, Idheas to investigate the disappearance of women in the Mexican state of Guerrero. The state is one of the central points of violence by organised crime and human rights violations in the context of the so-called “war on drugs”.

712 women have disappeared and are missing in the state, to date, however in more than 60 years, not a single arrest warrant has been issued by the Attorney General’s Office of the State of Guerrero nor has a single sentence been handed down for the disappearance of a woman.  

In 2022, the UN Committee on the elimination of Discrimination against Women (CEDAW) considered that the phenomenon of enforced disappearances taking place in Mexico was one of the most violent forms of gender-based violence committed against women, and that it amounts to discrimination against women. The first time it took such a stance, linking disappearances to gender-based violence (GBV) and to how state authorities tolerated, or even supported it. Rhea describes the move as significant and says it puts international pressure on the state of Mexico.

Multiple state justice actors have been heavily criticised for failing to investigate cases of the disappearance of women in Mexico. The authorities in charge of investigations, particularly in Guerrero, have been accused of stigmatising women victims of disappearance when any of the lines of investigation identify members of organised crime as suspects. They’ve also been criticised for failing to conduct gender-responsive investigations, express gender stereotypes when communicating with relatives, and for blaming women for their own disappearance. This is said to be observed at all levels, including in legislative and judicial branches. Rhea says that crimes against women are not punished in Mexico and there’s a general climate of impunity.

Presented and produced by Evelyn McClafferty.

With thanks to our donors: Irish Aid.

Note: The views and opinions expressed in this episode do not necessarily represent those of IRLI or Irish Aid.