Winter Publications from CCJHR members

The winter saw a number of publications in criminal justice/human rights and other areas of law from staff and research student members of the CCJHR.

PhD candidate Liam Thornton (UCC profile) published “Subsidiary Protection for Asylum Seekers Within Ireland” (2008) Irish Law Times 6. Liam also published a review of Olga Ferguson Sidorenko, The Common European Asylum System: Background, Current State of Affairs, Future Directions in [2007] 44(6) Common Market Law Review 1830 (access online).

PhD candidate, Judge David Riordan published “Immigrants in the Criminal Courts” (2007) Judicial Studies Institute Journal 95 (online).

PhD candidate Olufemi Amao (bepress; SSRN)published “Controlling Corporate Cowboys: Extraterritorial Application of Home Countries Jurisdiction to EU Corporations Abroad” (2007) University College Dublin Law Review (Symposium Edition) 67-79 (UCDLR Home) and “Corporate Social Responsibility, Multinational Corporations and the Law in Nigeria” (2008) 52 (1) Journal of African Law 89-113 (JAL Home).

Dr. Shane Kilcommins (UCC profile), with Barry Vaughan, published his new book entitled Terrorism, Rights and the Rule of Law (Willan Publishing)(buy online). Here’s the blurb:

The rule of law is becoming a victim of the struggle against terrorism. Many countries are reviewing their security procedures and questioning whether due process rights hinder them in the ‘war on terror’. There is increasing emphasis on preventive detention or strategies of disablement that cut into the liberties of suspects who may not have committed a crime.The focus of this book is the Republic of Ireland, where the risk of political violence has constantly threatened the Irish state. To ensure its survival, the state has resorted to emergency laws that weaken due process rights. The effects of counter-terrorism campaigns upon the rule of law governing criminal justice in Ireland are a central feature of this book. Globalization has supported this crossover, as organized crime seems immune to conventional policing tactics. But globalization fragments the authority of the state by introducing a new justice network. New regulatory agencies are entrusted with powers to control novel risks and social movements adopt a human rights discourse to contest state power and emergency laws. The result of this conflux of actors and risks is negotiation of the model of justice that citizens can expect. Terrorism, Rights and the Rule of Law contributes to current debates about civil liberties in the ‘war on terror’, how counter-terrorism can contaminate criminal justice, and how globalization challenges a state-centred view of criminal justice. It will be of key interest to students of criminology, law, human rights and sociology, as well as legal and other practitioners and policy-makers.

Dr. Conor O’Mahony (UCC profile) published “Constitutionalism and Legislation in Special Educational Needs Law: An Anglo-Irish Perspective” [2008] Public Law 125 (available on Westlaw UK).

Dr. Darius Whelan (UCC profile SSRN) published “Fitness for Trial in the District Court: the Legal Perspective” (2007) Judicial Studies Institute Journal 124 (online).

Dr. Mary Donnelly (UCC profile) published “Assessing Legal Capacity: Process and the Operation of the Functional Test” (2007) Judicial Studies Institute Journal 141 (online).

Fiona de Londras (UCC profile SSRN) published “Guantanamo Bay: Towards Legality?” (2008) 71(1) Modern Law Review 36 (online) and “Hamdan v Rumsfeld” (2007) 54(3) Netherlands International Law Review 539 (online)

Reactions to the Immigration, Residence and Protection Bill 2008

Yesterday, the Minister for Justice, Equality and Law Reform, Mr. Brian Lenihan T.D., introduced the Immigration, Residence and Protection Bill 2008. This Bill aims to consolidate Irish immigration and asylum legislation. In a press release explaining the rationale behind the Bill, Minister Lenihan stated that the aims of the Bill are inter alia to streamline the consideration of refugee and subsidiary protection applications; to prevent the abuse of the protection system by limiting appeal opportunities and restricting the right to judicial review. The Minister further noted that the Bill aims to regulate ‘regular migration’ into the State and to provide for a long term residence status to certain categories of migrants. Further to this, the Bill contains provisions on the removal of those who are not lawfully present in the State.

The 2008 Bill may be broken into nine Parts. Part 1 of the 2008 Bill deals with preliminary issues of commencement, interpretation and enforcement. Part 2 gives a definition of those who can be considered lawfully and unlawfully present, and prohibits those unlawfully within the State from accessing state services, unless there are exceptional circumstances. Part 3 of the Bill deals with issues relating to visas. Provisions dealing with entry into the State (Part 4), residence (Part 5) and removal from the State (Part 6) are also present in this Bill. Part 7 outlines the new procedures in place for the assessment of refugee and subsidiary protection applications are also in place. Further matters relating to the grant of refugee, subsidiary or other discretionary protection status are also outlined in the Bill. Part 7 further provides for the detention of certain protection applications, the issuing of protection permits and allows the Minister, after certain considerations are taken into account, to classify a country of origin or any other third country as ‘safe’. Part 8 makes further provisions, including allowing victims of trafficking a period of ‘reflection and recovery’, the extent of the powers of An Garda Siochána and Immigration Officers. The Bill also seeks to place restrictions on marriage for those who are foreign nationals. In addition, there are special and strict limits on judicial review including making legal representatives liable for costs where claims are regarded as ‘frivolous or vexatious’ by the High Court. Part 9 of the Bill deals with transitional provisions.

The reaction of political parties to the Bill is somewhat mixed. Coalition government partners, the Green Party welcomed the Bill. Fine Gael welcomed proposals to speed up the asylum process but were concerned with the continuing discriminatory effect the Bill would have in making it harder for Irish citizens to reside in Ireland with their non EU spouses. The Labour Party has criticised the large degree of discretion which the Bill places in the hands of the Minister for Justice. Sinn Fein raised concerns regarding the broad ministerial discretion within the Bill, family reunification and lack of regard to victims of trafficking.

The reaction of a number of relevant NGOs has been reported in the Irish Times [subscription required]. Denise Charlton of the Immigrant Council of Ireland has stated that the Bill fails to deal with the “delays in decision-making, inconsistent decisions [and] lack of clarity.” Such concerns were also raised by the Migrant Rights Centre Ireland. Both the ICI and MRCI also criticised the Bill for failing to provide a clear right of family reunion for migrants. Ken Murphy, Director General of the Law Society of Ireland has voiced concern over the provisions regarding the possible financial liability of legal representatives who bring immigration cases before the courts. Mr. Murphy noted how “Such a provision already exists in the rules of court. Its inclusion here is unnecessary and unjustified. It seems designed to discourage vulnerable people from fully exercising their right to the protection of the law.” Noeline Blackwell, Director of the Free Legal Advice Centres (FLAC), has criticised the emphasis on speed within the Bill and has stated that “[w]hile the Minister quite naturally wants to set up a fast, efficient immigration system, our concern is that a fair balance must be maintained between efficiency and rights”. FLAC further expressed concern for the restriction of access to the Courts and have highlighted the danger that “lawyers will be discouraged by the sheer weight of obstacles that impede access to the courts for immigrants.”

This post was submitted by PhD candidate, Liam Thornton.

What happens the detainees when the War on Terrorism ends?

University of Pittsburgh’s excellent JURIST blog today reports on a draft bill before the Iraqi parliament which would allow for the release of approximately 5,000 current detainees in Iraq and provide those released with an amnesty. Although there are some quite severe difficulties with the Bill – not least the fact that excludes from its provisions all those in US custody and those imprisoned for, inter alia, adultery and homosexuality – and the fact that it is not targeted as a response to terrorism-related detentions, the Bill’s presentation does raise an important question: what will ‘we’ do with those detained on suspicion of terrorist activities when the ‘War on Terrorism’ ends?

To take Guantanamo Bay as an example, the United States has repeatedly asserted its desire to close the detention facility there but cites concerns about the destination and future conduct of detainees, including reluctance by ‘home states’ to have their citizens repatriated, as one of the major obstacles to closure. In addition, any detainees who may have been subjected to unlawful treatment in detention including torture clearly pose a litigation risk to the United States. To this end, some insurance policies may cover people against mistreatment claims (see NYT piece here). In addition, national security and separation of powers arguments may be successfully used to prevent litigation in US courts by those who claim to be the victims of such ill-treatment. For example, the DC Circuit court last week decided Rasul v Myers in which the court , finding that the claimant could not succeed in a damages claim against the government, held:

The present case involves the method of detaining and interrogating alleged enemy combatants during a war–a matter with grave national security implications. Permitting damages suits by detainees may allow our enemies to “obstruct the foreign policy of our government.” Moreover, dealing with foreign relations is primarily delegated to the executive and legislative branches, see…and creating a damages action could produce “multifarious pronouncements by various departments.” Nor does our government’s unanimous condemnation of torture answer this concern, since where to draw that line is the subject of acrimonious debate between the executive and legislative branches. Treatment of detainees is inexorably linked to our effort to prevail in the terrorists’ war against us, including our ability to work with foreign governments in capturing and detaining known and potential terrorists. Judicial involvement in this delicate area could undermine these military and diplomatic efforts and lead to “embarrassment of our government abroad.”

Notwithstanding these potential protections from liability, per se, the release of prisoners who claim torture or serious ill-treatment might well have a masive reputational impact on the United States. Writing about this issue in a piece entitled “United States Policy Towards Enemy Detainees in the ‘War on Terrorism’” published in the Human Rights Quarterly, the formidable scholar David Forsyth recently evoked the French-strategy following the Algerian war (i.e. of mass killings to prevent torture victims from speaking out) and wrote:

Accordingly, the democratic French, who had greatly contributed to the theory and practice of human rights, committed torture. And because the French had tortured, they could not put their enemies on trial; instead, they summarily executed them. Their efforts to sweep these atrocities under the rug for many years led to the loss of their self-respect, as well as the respect of many others, starting with the Arab-Islamic world. Torture may have helped the French win the battle of Algiers, but their policy of abuse led to many negatives, including increased domestic criticism and loss of reputation in the world; meanwhile their enemies failed to lessen their struggle. The Bush policy toward enemy detainees replicates much of this French experience.

….

US nationalism after 11 September 2001 has been less intolerant than some periods in US history; the Wilson and McCarthy eras quickly come to mind. But perhaps that is due to the lack of open, vigorous debate and dissent about Bush’s security policies. Given this lack of serious domestic debate, the Bush Administration has been able to sustain its policy of abusive interrogation, even if it has had to clean up detention practices in military facilities. International criticism has been much less important than domestic factors, although the role of the ICRC is not without importance.

The situation is not totally new, not only by comparison to France in Algeria. During the Cold War, the United States then too spoke of freedom and human rights and the rule of law but acted in the shadows to overthrow elected governments and back murderous allies, as in Chile and Guatemala. But to paraphrase Satre in the earlier quote, why should Americans go to such trouble to be patriots if their country in reality stands for torture and other serious violations of fundamental human rights? The French have much to say on the subject.

A law such as that proposed in Iraq is unlikely to solve the problems to be faced by the United States at the ‘cessation of hostilities’ when even its (shaky) IHL grounds for detention are gone, but it may well become time to start thinking about strategy. Although the candidates for presidential nominations from both the GOP and the Democratic party have address Guantanamo and the ‘War on Terrorism’ (for a useful summary of GOP hopefuls’ approaches see here), none appear to have come up with a sustained strategy to avoid a repetition of what Forsyth might call ‘the French lesson’.

New International Law Blog: Invisible College Blog

The Invisible College – a new international law blog set in Europe – has just launched. An extract from the site description is below, and the blog promises to be an excellent addition to the daily reading of anyone interested in international law and politics. Welcome to the blogosphere!

The Invisible College is the result of the joining of forces of two earlier weblogs, the 1948 blog started in January 2007 by Otto, Richard and Nicholas, and The Core, started in February 2006 by Nicki, Tobias and Björn

The blog’s title refers to an 1977 article by Oscar Schachter (“The Invisible College of International Lawyers”, 72 Northwestern University Law Review (1977) 217-226), in which he speaks of the “professional community of international lawyers” forming an “invisible college dedicated to a common intellectual enterprise”. While Schachter mostly concerns himself with international lawyers who are government officials and/or career acedemics, it seems that the “invisible college” he speaks of has grown substantially in the 30 years since then; it now includes undergraduate and graduate students, interns with various international organisations, University researchers, attorneys working in international practice areas, NGO lawyers and many more.

It is our hope that our blog can become not only an interesting read, but an actual community resource for this diverse group. We plan to publish, besides commentaries on international developments, posts on Master and Doctoral programs, summer schools, job opportunities in the field, web ressources for scientific research, etc. etc.

Andrew Ashworth: The Pernicious Side of Proportionality

On Thursday the 24th of January, the CCJHR will host a seminar by Professor Andrew Ashworth (Oxford profile) entitled “The Pernicious Side of Proportionality: Two Studies in the Hollowing out of Human Rights”. The seminar will be chaired by Justice Liam McKechnie of the High Court

The seminar will take place from 5.30 – 7.30 pm in the Council Room, North Wing, UCC.

In this seminar, Professor Ashworth will discuss recent developments in the case-law of the European Court of Human Rights, with particular reference to the privilege against self-incrimination and the concept of inhuman and degrading treatment. Professor Ashworth will argue that these recent developments threaten to undermine the protection of human rights in domestic legal systems.

Full details are available here.

Michelle Diskin to address Criminal Justice students

Michelle Diskin will speak to the LL.M. (Criminal Justice) students at UCC about the trial and appeal of her brother Barry George. In 2001 Barry George was convicted of the murder of the well know television presenter Jill Dando. In 2007 the Court of Appeal in London quashed Barry George’s conviction and ordered a trial of the case. This talk will take place at in the Law Department UCC.

This lecture is being organised as part of the Advanced Criminal Process (Clinical Programme) which aims to encourage students to reflect on the realities of the criminal justice system in practice. The LLM (Criminal Justice) (Clinical) is a unique programme which is designed to bridge the gap between the theory and practice of criminal justice.

Please contact gerard.murphy[at]ucc.ie for more information on this event or the LLM (Criminal Justice) (Clinical) programme in general.

Judge James McNulty – “Sentencing in General and Section 3 of the Misuse of Drugs Act in Particular”

District Court Judge James McNulty will address the LLM (Criminal Justice) students on the above topic at a lecture to be given at UCC today. This lecture is being organised as part of the Advanced Criminal Process (Clinical Programme) which aims to encourage students to reflect on the realities of the criminal justice system in practice.

The LLM (Criminal Justice) (Clinical) is a unique programme which is designed to bridge the gap between the theory and practice of criminal justice. More details of the programme, including admission criteria, are available here.

For more information on this event or the LLM (Criminal Justice) (Clinical) programme in general, please contact Gerard Murphy.

UPDATE For media coverage of Judge McNulty’s lecture see here

Call for Papers: CCJHR Post-Graduate Conference on Criminal Justice and Human Rights

The Centre for Criminal Justice and Human Rights is pleased to announce the second postgraduate conference on criminal justice and human rights to be held on Thursday 1 May 2008.

This one-day international conference will attract postgraduate research scholars whose work pertains to criminal justice and human rights. In addition to exploring topics specific to the scholarship of criminal justice or human rights, the conference aims to consider the intersections of both fields. The conference will serve as a forum for discussion and debate among researchers within both fields and between the two fields of study themselves.

The keynote address will be delivered by Michael O’Flaherty, Professor of Applied Human Rights and Co-Director of the Human Rights Law Centre in the School of Law, Faculty of Social Sciences, Law and Education at the University of Nottingham. Professor O’Flaherty is also an elected member of the United Human Rights Committee.

The organisers invite abstracts from postgraduate students working in these areas. The presentation of ongoing work is especially welcome.

The conference will be organised into streams, including but not limited to the following topics:

* Discourses of rights and crime.
* New directions in human rights enforcement.
* Human Rights, Criminal Justice and the War on Terror.
* Transitional justice.
* ECHR and domestic law.
* Asylum and immigration.
* Multiculturalism, minority rights and human rights.
* New trends in International criminal justice.
* Gender and Human Rights.
* Policing.
* Victimology.
* Juvenile justice.
* Punishment and penal policy.

Please submit an abstract (max. 300 words) to the organising committee by February 15th 2008. Successful conference submissions will be notified by February 29th 2008. Submissions and further enquires should be directed to a.d.odonovan[AT]student.ucc.ie

US Court: NGOs enjoy privilege in relation to sources

The US District Court for Eastern New York has held that human rights organisations have an equivalent right to protect their sources to that enjoyed by journalists. The case concerned an Amnesty International report in which lawyers – quoted anonymously – expressed concerns that their meetings with clients at a federal jail were being secretly videotaped. The Court held that Amnesty was not obliged to reveal its sources.

The decision is an important one – important enough to perhaps be litigated further and to higher federal courts – because human rights organisations such as Amnesty, Human Rights First and Human Rights Watch (for example) frequently rely on victims and others for their reports, while those from whom testimonials are taken rely on anonymity for their safety.