Horsehair Wigs

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.

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.

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.

On the show this month, we talk to Ray Murphy, a human rights lawyer and professor at the Irish Centre for Human Rights in Galway. Ray talks about the current situation in Gaza and the legality of the Israel-Hamas war.

Ray says he believes the only way the current humanitarian crisis in Gaza will be truly tackled is through international law and the framework of international law. But he, too, stresses the importance of political will - an aspect of international law a previous guest, Kate Gibson has also talked about.

Ray discusses the South Africa genocide legal challenge against Israel before the International Court of Justice and how he believes there is a good case for genocide because, he says, innocent civilians have been targeted. He describes the Israeli military’s response to the 2023 Hamas October 7th attacks as “totally disproportionate” and the consequences “quite horrific.”

As the primary judicial organ of the United Nations, the International Court of Justice is, in Ray’s view, the most prestigious and authoritative international court, describing the court as “a very effective mechanism for adjudicating disputes or seeking clarification on legal issues.” He says its rulings are not binding, but carry political weight.

Ray Murphy questions Germany’s staunch support of Israel, in light of the humanitarian crisis in Gaza, asking, “What is it about Germany and its support for Israel that makes it somewhat blind towards the horrific, catastrophic, awful human situation that is currently being inflicted on the Palestinian civilian population of Gaza?”

Ray also discusses the constitution of war crimes, crimes against humanity and genocide as a backdrop to the various legal explorations underway related to the war, and indeed to Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory.

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.

We sit down with some of Irish Rule of Law International’s (IRLI) Malawi team this month to discuss how Malawi's poverty is affecting its justice institutions. IRLI’s programme in the country is strategically designed, in collaboration with its partners on the ground, to provide access to justice to people accused of crimes in Malawi. Malawi is a country with a prison population of seventeen thousand and only 700 lawyers.

We hear from Susie Kiely IRLI’s Malawi Director, Macdara O Droisecoil IRLI’s Programme Lawyer seconded to the Legal Aid Bureau and Immaculate Maluza IRLI’s programme lawyer seconded to the office of the Director of Public Prosecutions.

They talk about democracy in the resource-poor country, the overcapacity of Malawi’s prisons, prison conditions for inmates, the new Prisons Bill they’re trying to see enacted and the huge delays in bringing people to court.

IRLI’s holistic approach to access to justice in Malawi enables its programme to target each component of the justice system and ensures the cooperation and coordination between key institutions.

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.

On Horsehair Wigs this month, we speak with Sarai Chisala-Templehoff, a human rights and social justice lawyer. Sarai is the Founder of the Gender and Justice Unit in Malawi – an organisation educating women on their legal rights, in a hugely patriarchal society.

Much of the work that the Gender and Justice Unit does centers around women’s access to justice in the country – through working with partners, including Irish rule of Law International, providing support and responding to legal gaps.

Sarai talks about the social and cultural landscape in Malawi, where many young girls are married very young, some before their 15th birthday, despite child marriage being illegal in the country. The NGO, Girls Not Brides, has said that Malawi has the 12th highest child marriage rate in the world. In 2020, this equated to 46% of girls married before turning 18. Sarai talks about child marriage being viewed as a means to improving economic status. She also talks about the non-rights of women being systematic, given that many young pregnant girls drop out of school early, and that's when the cycle of injustice starts, she says.

In Malawi, 34% of women aged between 15 and 49 have reported experiencing physical violence, 14% sexual violence, and 23% emotional violence. During the course of the conversation, we discuss this with Sarai in the broader context of the discrimination that women and girls face in the country.

Malawi ranks 9th globally in terms of aids prevalence. There are an estimated 1.1 million Malawians living with HIV and over 771,000 orphaned children, many due to AIDS. Sarai talks about her work in this field.

How is climate change impacting the rights of women and girls in Malawi? Sarai believes that the Gender and Justice Unit will need to become better equipped in climate issues to continue to serve its community needs.

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.

On the show this month, we’re talking to international human rights lawyer, Doreen Chen. She talks about the situation for human rights defenders globally and she also discusses her human rights centric input in the drawing up for various global authorities of counter-terrorism responses.

Doreen is the co-founder of a non-profit, Destination Justice, which she also runs. The organisation advances human rights and the rule of law. It works primarily with human rights defenders – people who work peacefully to promote and protect human rights. Doreen links the killing and crackdown of human rights defenders globally with a worldwide decline in the rule of law.

Most of the human rights defenders being killed are those working to protect the land, environment or indigenous people’ rights. Doreen discusses this in the context of Asia, where she has her focus, and she also discusses the precarious human rights conditions for people exercising their basic freedoms in Thailand.

As a lawyer and litigator, she believes that the right to a fair-trial is a corner-stone to respecting the rule of law and democracy, and in that context works with various actors in centering human rights in counter-terrorism responses. She says there is a rich tapestry of different actors working to counter the threat of terrorism, especially since 9/11 and she works with various authorities globally. She says, “we need to be level-headed, especially in cases like terrorism, when the circumstances are triggering us to behave otherwise.” She says the underlying theme of the rule of law and democratic resilience is why she does this work.

Doreen says her invitation to participate in these different policy spaces, as an international human rights lawyer, is evidence of the approaches that are being taken now, twenty years after the terrorist attacks against New York City and Washington D.C. while mentioning widely publicised shortcomings in prior processes adhering to human rights law, namely extensive detention, extraordinary rendition and torture of suspects.

According to the latest statistics in the Global Terrorism Index, from ReliefWeb – a UN service - Afghanistan is the country most impacted by terrorism for the fourth consecutive year, but it’s the Sahel region in sub-Saharan Africa which is now the epicenter of terrorism. Doreen discusses the known drivers of terrorism, saying people who live within weak legal systems are at particular risk of terrorist activity. For Doreen, she believes human rights standards need to be lifted across the board to eliminate the potential for terrorists to exploit weaknesses.

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.

On Horsehair Wigs this month, we’re in conversation with international criminal and human rights lawyer, Kate Gibson, who talks about the effectiveness of the International Criminal Court (ICC) in delivering justice.

The ICC is made up of 123-member states, but many governments are not ICC parties, having not signed up to the Rome Statute, which governs it. These countries include the United States, China, Israel, Russia and India. Kate talks about the importance of all states signing up the court, cooperating and believing in it, in order for there to be more widespread enforceability of international criminal justice and accountability for grave crimes.

In its 21-year history, the International Criminal Court has publicly indicted 52 people. With the exception of 5 Russians indicted during the current conflict in Ukraine, all other ICC indictees have been African or Arab. Kate believes it’s because international criminal justice is a very politicised environment and questions why some states are willing to subject themselves to the jurisdictional reach of the court and others aren’t. She says this is why international justice, “doesn’t yet have this universal reach” and “why we only see certain types of defendants in the dock”.

Among others, Kate has represented former Bosnian Serb leader Radovan Karadzic who is serving a life sentence after being convicted of genocide for the July 1995 Srebrenica massacre of more than 8,000 Muslim men and boys by Bosnian Serb forces. And she’s also acted as co-counsel to the former Liberian President Charlies Taylor – who is serving a life sentence for his role in the conflict in Sierra Leone.

Kate talks about her career of nearly 20 years representing those accused of serious international crimes and the impact the delivery life sentences have, and her view of the defence being crucial to the workings of justice.

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.

On the programme this month, we discuss the psychosocial impact of the civil war in Sierra Leone with human rights activist, Binta Mansaray.

Binta, a Sierra Leonean, talks about the double victimisation of child soldiers, who are now adults, many homeless, and involved in criminality. She also talks about the legacy the conflict has had – a conflict which had been fuelled and funded by the country’s natural resources, diamonds. We hear about the absence within schools’ teachings of the history of the war. And Binta describes many adults in the country now, “not wanting to hear anything about the war because of what they have gone through.”

What has become of the perpetrators of the violence and its survivors? We discuss this, within the narrow mandate the Special Court for Sierra Leone (SCSL) had, in holding those who bore “the greatest responsibility” and within a specific timeframe.

Binta is Registrar of the SCSL, now in residual status. Prior to that, she worked as its Outreach Coordinator, having direct contact with the people and communities in the country. Much of her work surrounded liaising with women and children, and still, to this day, she is involved in the processes surrounding transitional justice.

The SCSL was the first to rule on the use of child soldiers in conflict. Previous podcast guests, Shireen Fisher and Teresa Doherty have also contributed significantly to the court. Indeed, while a member of the court, it was Justice Doherty’s opinion that led to the recognition in international law of forced marriage as a crime against humanity.

This episode contains some graphic details of killings and atrocities committed during the war, which have been described as “the worst we have seen anywhere in the world”.

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.

Our guest on Horsehair Wigs this month is Maud Sarliève, a Human Rights and International Criminal Lawyer advocating for creative legal thinking to mitigate climate change and protect the environment. Maud has travelled and worked internationally, on UN backed tribunals, for the United Nations office on Drugs and Crime and for the UN High Commissioner for Refugees, among others.

In this interview with Maud, we discuss what the proposed international crime of Ecocide is all about. And we talk to Maud about her current role advising the Office of the Prosecutor General in Ukraine on the investigation and prosecution of war crimes impacting the environment.

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.