Examiners’ reports 2021

Examiners’ reports 2021

LA2029 International protection of human rights –

Zone A

Introduction
On the whole, the best scripts were those that had two key qualities. First, those
that ensured each answer focused on the question being asked and the specific
issues it raised. Answering the question alone is not enough. Many candidates
reproduced almost verbatim the same pre-learnt answer – they did not do as well
as they might have. Better answers demonstrated that the candidate had read
around the subject and was able to apply this wider reading to the issues raised by
the questions. The second key quality was answering the correct number of
questions. There were two variations of this. First, there were a number of rubric
violations, where candidates answered four questions seeking to take advantage of
the fact that the best three marks will be recorded. This is unwise. Second, was
where a significant number of candidates were able to answer two questions well
but either ran out of time for the third question or had revised too narrowly and were
unable to write a third answer that had any real substance to it. More generally,
candidates should also refer to the Assessment Criteria to familiarise themselves
with the criteria that are applied to mark the examinations.
When the examination starts, it is essential to read very carefully the whole paper
question by question and then decide which questions you are potentially able to
attempt. It is then important to try to evaluate which questions you can answer best.
Only identify the correct number of questions. When you have decided which
questions to do, it is always best draw up a brief plan of how you will answer each
question. Then, once you have done this, you should begin answering the first
question you have identified. Some examiners think it is best to start with the
question candidates can answer best. Others feel it is better to get the weaker ones
out of the way and then write your stronger questions toward the end. This is
deemed to give ‘exit velocity’. Others have no views. There is no one approach that
works for all candidates and it is better to answer questions in the order you feel
suits you best. The questions are set out to allow you to demonstrate your
knowledge and understanding in relation to specific issues. Although there may be
some marginal overlap, there are no two questions on the same topic. There are no
trick questions, so ask yourself ‘why have the examiners asked me this?’
As noted above, in sitting an examination, timing is very important. As noted above,
there were many papers where candidates answered two out of three questions
well but had clearly run out of time for the third and final answer. By spending less
time on each of the other questions and more on the final question, their overall
mark would have improved significantly.
To return to the other key issue noted above, it cannot be overstated but your
primary aim in the examination is to answer the question. You are told this
constantly both because it is true and because failing to abide by this simple rule is

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the number one cause of failure or underperformance in examinations. At every
point in the examination, you should ask yourself whether you are answering the
question. Essay questions can cause difficulty for candidates as they provide scope
for a general discussion that fails to answer the question. Many candidates read an
examination question, identified it as a particular area and then simply wrote an
essay covering all they knew about it, they did not do well on those questions.
There was also clear evidence of candidates having pre-learnt an answer and then
interpreted a question so as to be able to use the pre-learnt answer. Again, they did
poorly on those questions. Read the question, identify the area it is actually about
(not what you hope it is about) and analyse the question. Break it down into its
constituent parts, and really think – ‘what am I being asked here?’ and ‘how can I
best answer it?’ If many candidates did this for all questions answered, their final
mark would have improved significantly.
It should be noted, however, there were some very good, indeed outstanding,
individual answers as well as overall papers in this examination. Under the
circumstances of the last year and a half that was very pleasing. Some other
candidates had a good grasp of the relevant issues, cases, treaties and national
legislation but were not always able to write an answer that reflected their
knowledge. But there were also certain common errors, errors that occur in most
examination sittings. Some candidates answered two questions on the same topic.
As noted above, it is highly unlikely that this is ever the case on any law exam
paper, and it was certainly not the case on this paper. If you discuss exactly the
same material twice in the same exam paper, you have misunderstood the scope of
at least one of the questions.

Comments on specific questions

Question 1
‘Populism is now the greatest challenge to a universal understanding of
human rights.’
Discuss.
General remarks
A popular question that many candidates addressed.
Law cases, reports and other references the examiners would expect you to use
None specifically.
Common errors
Some candidates only discussed what populism is. That does not answer the
question posed. Others only talked of only cultural relativism and universalism,
which again did not answer the question.
A good answer to this question would…
consider the challenges posed by populism and if indeed it is the greatest challenge
to a universal understanding of human rights. The relevant materials are in
Chapters 2 and 3 of the module guide but candidates may seek to pull together
other material they have studied. Populism is a challenge but whether it is the
greatest challenge and further whether that is so on a universal level is a different
matter. Culture, religion, relativity are all challenges to universal understandings of
human rights. Candidates may wish to agree or disagree with the proposition but on
balance it would be better to disagree.

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Poor answers to this question…

talked only of populism or only of the drawbacks of universalism.
Student extract
The question in hand req[uires] us to discuss what was the effect of individual
rights on the understandings of universal HR. and whether it presents a
challenge to the international HR law or a support in its development and
further we will discuss the cultural relativist conception in relation to universal
nature of HR. Before answering the question it is of crucial importance to
understand international law and the challenges it faces in relation to it being
universal or not.
International law which actually has started developing with the first states,
has been a subject to great changes especially during the period of world war
1. However shortly after the atrocities of world war 2 the first step was taken
to establish and recognise the universality of HR in international law. It was in
the purposes of UN charter that HR are for all without distinction as to race,
sex, language, or religion. However the adoption and proclamation of the
universal declaration of HR was another major progress in the procedure of
universalizing the HR. the UDHR preamble was clearly defining that the
General Assembly proclaims this universal declaration of HR as a common
standard of achievement for all peoples and all nations . as a result a
universal system of rules was established for the protection of HR.
Universalism refers to the notion that HR are universal and should apply to
every human being. Universal HR are based on Western ideology, it has
been argued that universalism on HR merely referred to Western imperialism
which put forward some challenges in accordance with the main priorities and
prospects of universal HR.
Moreover in 1993 the Vienna conference reaffirmed the universality of HR,
characterizing such rights as universal, indivisible and interdependent and
sought to give them a more effective legal reality. However the problem came
after the Vienna conference about the disagreement over the nature of HR,
the problem was cultural relativism which is the assertion that human values
far from being universal vary a great deal according to different cultural
perspectives. The relativist argue that understanding of right and wrong vary
along cultural lines and thus definition of HR should vary accordingly. Islamic
states have argued for a Muslim conception of women’s rights. countries who
rejects universal set of standards as policy of Western countries for some
basic values and ethical values based on cultural relativism, according to
some analysts CR sees nothing naturally wrong with any culture appearance,
as a consequence, the primordial Mayan practice of self-mutilation and
human sacrifices are neither good nor bad.
Furthermore it can be argued that universality of HR refers to Western
culture, the implementation of universal HR from the Western perspective to
relativist non-Western countries cannot achieve any kind of success in terms
of providing HR because of the fact that these merely concern on the
Western cultural sets of norms. Moreover Islamic accounts of HR can make a
claim to universalism that is different from that of Western accounts. The
UDHR is expressly based on sources of Quran and Sunnah. This [is] different
from UDHR but UDHR is heavily influenced by natural law which is often
although not always argued to be derived from the law of God.
Comments on extract
This answer started reasonably well but quickly meandered into a discussion that
was not as pertinent as it could have been to the question. While it pulled back this

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time, the tendency to go off on tangents was apparent throughout the paper. With a
word limit and limited time, it is important to always advance your arguments. In
substantive terms, this answer did not have much more to add to the above and
then discussed populism in broad terms but did not relate populism back to the
question – i.e. does it pose a challenge to universal understandings of human
rights? It was awarded a third-class mark.
Question 2
‘The United Nations through its Charter-based organs has systematically
failed to protect individual rights around the world.’
Discuss.
General remarks
Again a very popular question with some exceptional answers.
Law cases, reports and other references the examiners would expect you to use
ECOSOC Resolutions, 1503, 1235, UPR, Human Rights Council.
Common errors
Some candidates discussed treaty bodies in depth. They are not Charter bodies
and sole focus on treaty bodies was not what the question required.
A good answer to this question would…
set out what are the relevant Charter-based organisations. Candidates could
examine the Commission on Human Rights, UPR, work of the General Assembly as
well as matters such as the Special Procedures. All are valid and important but key
is the alleged politicisation of the Charter bodies and how candidates address that
and the role politics play in defining and enforcing the law. Candidates would ideally
consider that there is a distinction between protection and promotion and that the
Charter-based organs have both functions and that is important. Moreover, that
there are various methods of protection and promotion and that these activities
need to be considered holistically while bearing the politics in mind.
Poor answers to this question…
tended to examine what Charter bodies were and list a litany of abuses as to where
the UN did not act.
Student extract
The United Nations, through its Charter-based organs has played an
instrumental role in developing human rights around the world. This is
applauded as a major departure from what was previously the status quo –
individuals were not recognized in the eyes of international law. However,
over the years the role of the Charter-based organs became very political –
thus diluting the protection of individual rights around the world. At the same
time, some efforts have been made to deal with the problems. This essay
argues that the development of the Charter-based organs and systems
(Commission on Human Rights; Human Rights Council; Universal Periodic
Review; Special Rapporteurs and Working Groups) was an important step;
however, their ability to provide protection has remained to be questionable,
although it would not be right to say that the organs have systematically failed
to protect individual rights.
To begin with, it is important to first provide a brief background. The United
Nations was created with the aim to reconstruct international community after
the horrors of World War 2, and the UN Charter proved to be a fundamental
document at that time. However, the Charter itself contained some lukewarm
references to human rights with Articles 55 and 56 providing the UN with the
equipment to make policies pertaining to human rights. In 1946, the

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Commission on Human Rights was established, two years later after which,
the Universal Declaration of Human Rights was promulgated. This was
regarded as the first breakthrough in the protection of individual rights. Later
the UDHR was ‘given teeth’ by two treaties– the ICCPR and the ICESCR.
Initially requiring there to be one, indivisible document, it was later believed
that the division into two documents became a political necessity during Cold
War. This showed how quickly the Charter bodies gave into the political
pressures, leading to a weakening of their ability to protect individual rights.
In addition, the Commission on Human Rights also adopted a number of
other important treaties and declarations, such as CAT, CRC, Declaration on
the Right of Minorities, etc. These were lauded as welcome developments in
the identification and creation of individual rights; however, in terms of
protection and enforcement, this was highly political. First, there was
divergence amongst the States about the importance and significance of
these very important documents. While the UDHR was seen to stimulate
States to guarantee human rights in their constitutions and legislation, the
other two instruments seemed to be looked at differently by States. Hence,
the two did not enjoy the same status in each State. For example, Western
countries focused on the relevance of civil and political rights such as
prohibition of torture, freedom of expression; however, the communist bloc
and parts of the developing world were more tilted towards economic, social
and cultural rights, focusing on food, water, shelter.
Moreover, the Commission on Human Rights has been deemed as a very
political body. As a sub-organ of ECOSOC, it constituted of representatives
from Member States who were to be elected. The led to the inevitable politics
and ‘horse-trading’ where States voted to gain support in return. Resultantly,
the Commission was formed from States whose own reputations were tainted
with human rights violations. This considerably undermined the
Commission’s authority. In addition, States got to pick and choose other
States who they would criticize for human rights violations. For example, the
Arab States systematically used their allies to point fingers at Israel for their
human rights violation in Palestine. At the same time, those very States
would engage in acts of human rights violence themselves – however, they
were guarded from these criticisms. Powerful States, such as China, with
powerful friends were also shielded. This lent proof for the view that by
selective efforts due to its highly politicised nature, the Commission lacked
credibility, as well as systematically failed to protect individual rights around
the world.
Comments on extract
This was a competent and considered answer, which went on to develop the issues
well. It recognised the context and drew clear distinctions between protection,
development and promotion. It was well structured, thought through and
comprehensive. It was awarded a good upper second mark.
Question 3
‘Those norms which are considered by international law to be obligations
erga omnes or jus cogens (peremptory norms) are not economic, social and
cultural rights, rather civil and political rights. This fact reflects that civil and
political rights are the only important rights.’
Discuss.

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General remarks
A question that challenged the apparent incongruity of the view that all rights are
interdependent, indivisible and interrelated, while it is clear that some are erga
omnes and thus normatively superior. Some candidates relished the question and
attacked it with vigour. Some excellent answers.
Law cases, reports and other references the examiners would expect you to use
Articles 4 and 7 of the ICCPR, Articles 3, 4 and 15 ECHR, UNCAT and Articles 53
and 64 of the Vienna Convention of the Law of Treaties.
Common errors
None as such although some candidates had a tendency to discuss only what jus
cogens is.
A good answer to this question would…
consider what erga omnes and jus cogens are and then consider them in light of all
rights. This question pulled out materials from Chapters 3 and 4 of the module
guide. Here, however, the issue is the nature of rights. A key issue is the normative
hierarchy of rights and how some are deemed more essential than others. These
rights cannot be limited or derogated from, for example. Economic and social rights
are not among such rights. The question challenges candidates to consider which
rights are important, the relationships between them and further whether the
categorisation is indeed sustainable in light of how rights have evolved over time.
Poor answers to this question…
tended to focus only on the relationship between rights and not the question.
Student extract
International human rights law is complex and admits of wide variety of rights
which are protected through it. It is traditionally understood that states are
free to make law on any subject matter through conclusion of treaties or
formation of custom. However, after the two world wars and the destruction
they caused, the focus shifted on rights which need to be protected in order
to build lasting peace. In this respect Universal Declaration of Human Rights
was passed which paved way for the two major international human right
treaties namely International Covenant on Civil and Political Rights (ICCPR)
and International Covenant on Economic, Social and Cultural Rights
(ICESCR). There is a constant debate and tension between the nature of the
rights enshrined in these two treaties. ICCPR incorporates what we can call
Western idea of civil liberties and political rights. It includes rights like right to
fair trial, right to enjoyment of life, freedom from torture and discrimination,
among other things. ICESCR gives expression to social welfare rights like
right to housing, right to employment, right to education, right to free health
among other things. The civil and political rights are often termed as first-
generation rights while the social welfare rights are termed as second-
generation rights. We shall evaluate the debate in the light of the concept of
erga omnes and jus cogens.
Traditionally it is thought that only an aggrieved party can bring a claim
against the other party and in that way obligations are owed bilateral and not
to everyone even in a multilateral treaty. This is the self-interested
decentralized view of international law and is the prevalent view. The notion
of erga omnes, however, presents a community-oriented view of international
law or what we can call a shift from Grotian model to Kantian one. The idea is
that a state owes obligations to even those who are not directly aggrieved,
and this is seen most common in the context of important human right
treaties. But this should not be over exaggerated because theoretically
having such a right is not synonymous to practically having it. As Cassese

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explains when it comes down to it the claim will be brought by the party who
is injured because normally that is the jurisdictional hurdle which needs to be
crossed. International law is consent based and normally it is given when the
other party is injured. We will see whether ICCPR and ICESCR allows
enforcement erga omnes or at least theoretical admit of such concept.
Jus cogens are peremptory norms of international law and the idea is that the
values they protect are indispensable to international order that no derogation
from them is possible or desirable. The concept was introduced in Vienna
Convention on Law of treaties and any attempt to enact contrary law to jus
cogens is prohibited ( Art 53, 64 and 65 VCLT 1969). There are no separate
enforcement mechanisms for ICCPR and ICESCR as originally planned. Both
conventions have been signed and duly ratified by a vast majority of states
and are applicable in their domestic law depending on the monist or dualist
nature of their constitutional set up. The enforcement mechanism lacks any
judicial enforcement. There is a committee which works under the rubric of
the convention and state parties have to submit periodic reports of their
implementation of rights within ICCPR in their respective jurisdictions (Art
28). The review of the committee under Article 40 of ICCPR is not binding per
se on the parties but holds significant weight (Dixon). However, the public
nature of calling out the violators have significant impact, and the committee
has developed the method of allowing reports from relevant NGOs and it
question states on the basis of these reports as well.
Comments on extract
This started well and had much promise but then spent much of the rest of the
answer discussing treaty bodies and how they work and the differences between
them. While it did allude to types of rights, it did not tackle the question with the
clear focus that it needed. A lower second answer.
Question 4
‘International human rights law allows States to define the rights that they
then decide how they wish to protect. It is no wonder that the human rights of
many individuals around the globe are simply not effectively protected.’
Discuss.
General remarks
A question that surprisingly few candidates tackled. The approaches adopted reflect
that candidates understood the question had some flexibility to it. Equally, the
answers highlighted that the perceived uncertain scope of the question caused
problems for some.
Law cases, reports and other references the examiners would expect you to use
Nothing specific.
Common errors
Some candidates took it to be a ‘free question’ where they could write anything on
any topic they wished. It was not that at all.
A good answer to this question would…
consider what it is that the question was getting at. The question provided scope for
the use of examples from across your learning to consider the role of States in
protecting rights. It comes back to the fact that States violate rights and then seek to
find ways to define, protect and promote rights for themselves and others. So, there
was no one way to answer this and numerous approaches were justified. It was not
a ‘free for all’.

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Poor answers to this question…
See above.
Student extract
The statement raises two important points that lie at the heart of the
international system for protecting human rights. The first point asserts that
States have the ability to define their rights, resulting in limited protection of
human rights. The second point suggests that States also have the ability to
determine how they protect those rights once they have been determined,
further diminishing the effectiveness of the international protection of human
rights. In this essay, I will agree with both of these points by demonstrating,
firstly, the leeway states have in determining their own rights, and secondly,
the ability states have to circumvent protection of those rights.
Firstly, in addressing the ability of States to determine their own rights, it is
important to note that any convention or treaty requires a state to ratify it
before they can be held accountable to it. In monistic states, such as the
Netherlands, once ratified, international treaties automatically become part of
the domestic legal order. In contrast, in dualistic states, international law
operates in a different sphere from domestic law. Notwithstanding the major
differences between the two systems, they are similar in the fact that without
ratifying a treaty, the treaty can have no legal effect at all on the State. This
[is] based on the understanding that the State itself is the only one with
jurisdiction over its own affairs. Therefore, by simply refusing to ratify a treaty,
a state can simply limit the rights which it has to protect. This can be strongly
seen with respect to the ACHR. Despite being two of the most dominant
States in the region, both the USA and Canada have not ratified the treaty.
This means that they have no legal obligations towards it and allows them to
determine their own rights. Similarly, Venezuela and Trinidad and Tobago
have gone even further and denounced the whole Convention, further
demonstrating the ability of States to determine their own law. A similar
argument can be seen by the ability of States to make reservations within the
International treaties. The Women’s Convention contains numerous
reservations which have served to allow States to determine their own law
with regards to the Articles they disagree with. Thus, the above discussion
attests to the ability of states to determine their own law by simply deciding
not to ratify a treaty or convention and make a reservation against provisions
they do not agree with.
Another way in which States have the ability to define the rights they wish to
protect is the often deliberately imprecise and unclear nature of the rights that
are defined in the relevant treaties and conventions. This can clearly be seen
within the protection for refugees where there has been much disparity at
State level as to who is considered an asylum seeker and who is a refugee.
This can in part be seen as a result of there not being a treaty body which
protects the rights within the refugee convention and has resulted in an
application for protection being accepted in one State but not in another. The
issue of imprecise provisions leaving discretion to the state to determine the
rights they protect is also reflected in the 1981 Declaration on Religion or
Belief. Article 1 is deliberately vague concerning the right of an individual to
change his belief, thus allowing the States themselves to determine whether
they consider changing of belief a right or not. This can also be seen in the
development of the 1989 Children’s Convention. S. Detrick describes the lack
of consensus that surrounded the issues concerning start of a child’s
protections (from birth or conception) and how it has resulted in States having
the ability to determine the law surrounding abortions. Furthermore,

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disagreement surrounding the precise age for prohibiting child soldiers has
meant that the Convention does not give clarity over the ability of 15–17-
year-olds to be soldiers, leaving this to the discretion of states. This lack of
clarity is often the result of a lack of consensus among states in the drafting
process in determining rights. This is often due to different political
(refugee/asylum) and religious (right to change belief) tendencies and clearly
results in an ability for states to determine their own law.
Comments on extract
This was an excellent answer using knowledge from across the syllabus to highlight
examples of the issues that legitimately came within the scope of the question. The
candidate continued in this vein pulling in numerous examples and highlighting an
understanding of the broader dynamics of international human rights law. Awarded
a high upper second.
Question 5
‘The African regional system for the protection of human rights is often
lamented for its ineffectiveness but that ignores the ambition of the relevant
treaties and the context in which they operate. It would be more appropriate
to focus on what the system has actually achieved over time rather than what
it has not.’
Discuss with reference to the African Union system and any one other
regional human rights system with which you are familiar.
General remarks
A very popular question and one that was generally well answered.
Law cases, reports and other references the examiners would expect you to use
Relevant treaties.
Common errors
Discussion of only one system – either the African system or another – and not
drawing comparisons.
A good answer to this question would…
examine the African system in context and consider its successes and failures
comparatively to another regional system. The question takes the standard
assumption about the African system being a failed one and turns it on its head,
asking candidates to consider what it has achieved in the socio/political/ economic
context in which it operates. Candidates can compare this to one of the other
regional systems studied in the module. Chapters 5, 6 and 7 of the module guide
are relevant here. Good answers recognised that the African system has a varied
record and equally that the European system is hardly the beacon of success that it
is often considered. In the alternative, if comparison is drawn with the OAS system,
then again that system can be seen as more successful than often regarded.
Poor answers to this question…
tended to write only on one system.
Student extract
The statement can be broken up into three parts. Firstly, it suggests that the
African system for protecting human rights suffers from being ineffective.
Secondly, it suggests that this must be put into perspective considering the
context that the system operates in and the ambition it has actually shown.
Finally, the statement argues that the second point should outweigh the first
point and, hence, the focus of those analysing the African system should be
shifted from its failures to an acknowledgement of its achievements. In this
essay, I will agree with both of the initial points raised but argue that,

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 although the African system has made many achievements which must be
appreciated, a balance must be struck in also acknowledging much room for
improvement. In order to facilitate this analysis of the African system, I will
employ a discussion of the European system for comparative purposes.
It is first necessary to outline the main aspects of the African system before
moving on to a more detailed analysis. The OAU was established in 1963 but
initially, human rights were not a major part of its agenda. It was only in 1986
that the African Charter on Human and Peoples’ Rights came into force.
Underlying its creation and its content is the emergence of Africa from a
colonial system and thus there is a strong emphasis on people’s rights.
Article 19 of the Charter determines that ‘all peoples should be equal’.
Furthermore, as will be further discussed, the Charter differs from the
Western principles of human rights in its focus on duties as well as rights.
Articles 27, 28 and 29 all focus on the duties of the individual towards their
community. Once again, this is inexplicably [sic] linked with the liberation
struggle that provides for the context of the Charter. Article 30 of the treaty
established an African Commission on Human and People’s Rights giving it
power to undertake studies and research into human rights issues.
Additionally, Article 45(2) details the communication procedure and the
recommendations which the Committee may give. It is important to note that
up until 2004 there was no court supervising the African system. This will be
further discussed later. It is also of importance to note that in 1999 the African
Union replaced the OAU effectively replacing the Charter with the act itself.
Finally two important additions have come into force further developing the
African system of rights: the Women’s protocol in 2003 and the African
Charter on the Rights and Welfare of the Child in 1990.
In assessing the ineffectiveness of the African system, it is impossible to
ignore the significant enforcement problems that are inherent in the system.
In particular, the Commission suffers from a lack of resources, significantly
effecting the impact of its work. This has resulted in deficiencies in the
efficiency and quality of its work. In response, the Commission has attempted
to add restrictions to the admissibility of communications, however, Bantekes
and Oette argue that this has only resulted in further uncertainty and lack of
effectiveness. Furthermore, the Commission has failed to provide clearly
articulated doctrines in its interpretation of the Charter. This has resulted in a
further lack of coherence and consistency and can be seen as a failure of the
African system.
Additionally, Viljoen and Louw note that there has been a distinct lack of state
compliance with the Commission due to the weak enforcement mechanisms
that it contains.
Comments on extract
This was an excellent answer. It developed numerous themes and did so very well
indeed and was nuanced and intelligent in its approach. It was very well written and
informed and focused on the question. The structure was coherent and justified. It
was awarded a first.
Question 6
‘The #metoo movement has highlighted that women’s rights are still simply
not adequately protected.’
Discuss.
General remarks
Probably the most answered question on the paper. Some superb answers.

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Law cases, reports and other references the examiners would expect you to use
Women’s Convention 1979.
Common errors
To reference only the #metoo movement and not the issues in the Women’s
Convention. Equally only to consider the Women’s Convention in the abstract.
A good answer to this question would…
consider the question and balance the aspects of the question. The #metoo
movement, which has been all over the global press for the last 2 or 3 years, relates
to the ‘shame’ of women who are subjected to sexual harassment, assault, violence
and so forth by private actors. #metoo is a liberating movement that empowers
women to speak about their experiences and often involves naming and shaming
the perpetrators. This approach is well known in international human rights with
regard to States. The need for such a movement has highlighted the failure of laws
– domestic and international – to police the ‘private sphere’ where women are
concerned. Good candidates referred to such matters but also how these are
related to cultural ones and this plays a role but is not the only explanation. Good
answers highlighted what has been achieved but also what cannot be so easily
tackled through the law and highlighted how cultural issues are some of the most
entrenched as far as women’s rights are concerned.
Poor answers to this question…
See above as to what was not done.
Student extract
The statement in the question above is true: the #metoo movement has
brought to the surface many of the hundreds and thousands of instances
where women’s rights are not adequately protected. This essay shall argue
that despite the development of women rights as a welcome and necessary
development within the international human rights framework, women rights
are often ignored and disregarded; deemed as unnecessary and as a
distraction from the main idea of international human rights protection. The
central focus of the discussion with reference to these views will be the
#metoo movement. Based on the discussion, it will be concluded that the
#metoo movement covers cases of sexual violence and harassment, and
since women were given a platform through which they could share their
experiences, they were able to bring to the limelight how their right of life,
dignity and protection against violence is infringed. There are still many
instances of women’s rights protection that are not echoed as loud as the
#metoo movement. However, this brings proof for the fact that women’s
rights, even today, are not adequately protected.
To begin with, women constitute almost half of the global population, and
hence the development of their rights is both necessary and welcome.
Charlotte Bunch is of the view that women’s rights not being deemed as
human rights poses both theoretical, as well as practical problems as it has
dire consequences for how the society views and treats fundamental issues
of women’s lives. The notion of women’s rights has always been inherent in
the major human rights instruments including the ICCPR and ICESCR. In
addition, instruments like CEDAW have been focused on the development
and protection of women’s rights. In 1993, the UN World Conference on
Human Rights in Vienna also confirmed that women’s rights were human
rights. The recognition was regarded as significant as it removed any doubt
on whether women rights are part of human rights at the highest level.

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Comments on extract
This answer started well and then straight after the above extract almost solely
gave examples of #metoo-related incidents. It needed to consider the question
holistically and develop the whole and not just list examples. The extract given is
helpful as it is an exemplar of a very frequent approach adopted by many
candidates. The answer was awarded a middling lower second.
Question 7
‘Justice is the term used in the aftermath of conflict to legitimise processes
that are primarily driven by retribution and revenge. Such processes do not
serve any useful legal purpose.’
Discuss.
General remarks
A question that was popular but where the question was the most often misread.
Law cases, reports and other references the examiners would expect you to use
The ICC, ICTY, ICTR and Nuremburg trials among others.
Common errors
To consider the question was about the prohibition on torture, only.
A good answer to this question would…
answer the question and consider how post-conflict trials and processes often do
display bias and selectivity but equally how they have developed the law positively.
The legalisation of post-conflict processes can be seen as biased but equally those
same processes have been hugely influential in the development of the law. The
accusation of retribution comes from the Nuremburg and Tokyo trials and the notion
of victors’ justice. Attempts to move away from this and create ad hoc international
systems or permanent ones have not been entirely successful, although progress
has been made in the development of the law. Domestic courts or ‘internationalised’
domestic processes can be more legitimate but equally more open to accusations
of bias. There was no right answer here but good answers considered the issues
and took a reasoned approach to them; there are no easy solutions in the aftermath
of any conflict or other atrocity.
Poor answers to this question…
tended to talk almost exclusively of torture.
Student extract
The question asks of a detailed discussion on the role and history of victor’s
justice an ex post facto law and how such practice is smoke screened to
duplicate the principle of justice. This answer will be attempted by explaining
what smokescreen actually is and examples where it can be seen used by
world powers for the sole purpose of retribution and revenge. The answer will
entail of the discussion of the Nuremberg trials along with ICTY, ICTR and an
explanation of the trial of Saddam Hussein by the Iraqi tribunal. The main
thesis would agree with the statement that such malice-oriented proceeding
counter justice and prove to have no legal basis. The answer will encounter a
more history focused approach, than current.
A breach in international crimes requires states/individuals involved to take
responsibility and reperate [sic] against the barbaric acts they have
committed. The right to reparation is central to the idea of justice. This right is
indemnification to restore the order that was disturbed by the violations and,
unfortunately, is not fully feasible as can be seen by violations that have
taken place that a complete restitution financially, mentally and physically is
not possible. This is a principle established by the permanent Court of

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 Examiners’ reports 2021

International Justice in the Chorzow Factory case as ‘wiping out all

consequences of illegal act’. The ICJ affirmed the right to reparation for
violations of human rights in its Israeli wall advisory opinion.
Responsibility and accountability is of utmost importance. War crimes/crimes
against humanity concern individual’s criminal responsibility as post UN
(1945) individuals were included as the subject of law. This was established
through the Nuremberg (against German Nazis) and Tokyo (against the
Japanese) trials. Hence, individuals have international legal personality.
Many argue that the international military tribunal on Nuremberg (IMT) was
victors’ justice. Those who had power were not liable for their crime and in
turn targeted the weak. For example: USA was not held responsible for the
Hiroshima/Nagasaki bombs. Same goes to Britain, it was not made liable for
the atrocities it committed. Russia was not held responsible for the Dresden
bombs. Victor’s justice is when the defeated parties conduct is punished
under international law, by the victorious party. This usually involves
excessive or unjustified punishment of defeated parties and light punishment
for offenses committed by victors. The IMT was organised and held under the
umbrella of USA as one of the war's victors, the trials were seen by many as
simple acts of vengeance, hidden behind a smokescreen of legality.
Therefore, especially in post-war Germany, the trials were often described as
victor's justice. An example of victor’s justice can be seen through the
Pelloponesian [sic] war where all allys [sic] of Athens were trialled, even
those who were blatantly innocent. Thucydides clearly considered that this
was an unfair judicial procedure.
Both ICTY (1993) and ICTR (1994) were established to prosecute those who
violated IHL. Both tribunals have now been wound up and replaced with the
MICT. It was hoped that these tribunals assist with the ‘reconciliation’ and
‘reconstruction’ after the armed conflict. Even though confusion whether the
UNSC has the jurisdiction to form tribunals under Chapter VII UN Charter, the
case of Prosecutor v Tadic challenges otherwise. Contrary to the statement,
are the several issues that came along with the work of these tribunals. The
legitimacy of the entire process has been questioned, individuals like
Slobodan Milosevic did not cooperate with the tribunal whatsoever and
hence, died in custody in 2006. Serbia, in spite of handing over Milosevic to
the UN authority, did not hand over Karadzic despite knowing his
whereabouts. The struggle of the tribunals can be seen from the trial and
hearings of Milosevic. Fact-finding in the context of a conflict, preparing of
dossiers and gathering attestation is a meticulous and laborious process that
cannot be undertaken on the basis of probability. The logistics involved in
such high-profile cases of international nature, involving heinous crimes like
that of genocide is justifiable in giving leniency to the functioning of such
mechanisms. However, that does not mean inaction and inefficiency on [the]
part of these institutions. It demonstrates that even more effort needs to be
made in strengthening the application and implementation of these bodies
from the grass root.
ICTY has been criticized of being a result victors’ justice and a mode of
‘revenge’ as it solely prosecuted people from the Balkan states. Most
defendants have been Serb politicians, soldiers and paramilitaries but Croats,
Bosnians and ethnic Albanian Kosovo Liberation Army guerrillas have also
been tried. However, the Tribunal has declined to investigate allegations
made by Western academics and Serb politicians, who accused NATO
officials of war crimes during the 1999 bombing of Serbia (the Kosovo War),
including the deliberate bombing of a Serb TV station killing journalists, and

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 the lethal bombing of a railway bridge whilst a civilian train was passing over.
This demonstrates the hypocrisy of the retributive justice system.
Comments on extract
This was a good answer and argued from a particular perspective. It is important to
stress that you can argue what you wish but you need to be able to evidence your
point of view and also be balanced in your analysis. The answer did have some
errors but developed a decent overview and was more or less able to argue the
thesis being proffered. It was awarded a low upper second.

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