CCJHR 5th Annual Criminal Law Conference

Unfortunately we are not in a position to proceed with the CCJHR Annual Conference entitled “Different Approaches, Same Justice?: Lessons to be Learned Across the White/Blue Collar Divide” this Friday due to circumstances beyond our control.  We hope that the Conference will proceed at a later date.

Further details will be posted on this site once available

The CCJHR is pleased to announce the programme for its 5th Annual Criminal Law Conference entitled Different Approaches, Same Justice? Lessons to be learned across the White/Blue Collar Divide.

The aim of the conference is to review current debates on how those convicted of crime are treated.  Traditionally criminal justice responses have differed depending on the nature of the crime, with imprisonment being the preferred form of deterrence/punishment for ordinary crime and self-governance for white collar crime.

More recently, there have been calls for white collar crime to be treated more punitively.  It is hoped that the various perspectives offered in this conference will contribute to this debate.

The Conference will take place in the Brookfield Health Sciences Complex, Room G_02 on Friday 17th June, 2011 and will run from 10.00 a.m. to 5.00 p.m.

Contributors include:

  • Dr.Fiona Donson, Faculty of Law, University College Cork
  • Dr. Niamh Hourigan, Sociology Department, University College Cork
  • Dr. Deirdre Healy, School of Law, University College Dublin
  • Jane Mulcahy, Research and Policy Officer, Irish Penal Reform Trust
  • Professor Sandeep Gopalan, Head of the Department of Law, National University of Ireland, Maynooth.
  • Joe McGrath, PhD Candidate, Faculty of Law, University College Cork

The full program is now available and can be accessed online here.

Bookings can be made online by clicking here

More information can be obtained from Noreen Delea – Tel: (021)   490 2728 Email: ccjhr@ucc.ie Web: http://www.ucc.ie/en/ccjhr

European Prisoners’ Children Week

Fiona Donson

This week is European Prisoners’ Children Week and is being marked by Eurochips and its partners. the families of prisoners are an oft  forgotten group. Children in particular often suffer serious ill effects as a result of losing a parent to prison.

This issue was recently explored at an excellent conference hosted by St. Nicholas Trust in Cork entitled Doing Time – Outside. Speakers from a variety of organisations from the Irish Prison Service, to Bedford Row, St.Nicholas Trust and Partners of Prisoners UK, all made important and often moving contributions to an event which laid bare the challenges that arise in this area.

Organisations working with prisoners families provide invaluable support, counselling and services to this forgotten group often on very little money. And their cause if given little publicity or sympathy with the view taken by most, including those in the criminal justice system, that the prisoner has brought it on themselves, and therefore by connection on their own family too. However, the impact of imprisonment goes far beyone the offender. Eurochips notes in their literature that:

Each year, more than 800,000 children within the European Union are affected by the incarceration of a parent. These children frequently experience trauma stemming from a violent separation from their parent, social stigmas, and prejudices associated with having imprisoned parents, and violations of their rights.

For the children of prisoners the issue is one of fundamental rights including their right to family life and right to health as enshrined in the Convention on the Rights of the Child.

Eurochips is currently running a campaign including a petition calling for the right of children of prisoners to have their right to family life respected. Their desire to

-improve prison visiting conditions for children including longer hours, awareness raising and training for prison staff, and permission to maintain regular contact with a parent in prison

and

-create national monitoring groups to obtain more information on this vulnerable group of children and maintain quality visits

are essential and realistic goals which should be realised in any modern prison system.

The Applicability of Common Article 3 to the Geneva Conventions to Armed Attacks by Transnational Armed Groups

Anna Marie Brennan

This post examines whether armed attacks by Transnational Armed Groups come within the meaning of Common Article 3 to the Geneva Conventions as supplemented by Addition Protocol II (CA3).

A Transnational Armed Group can be described as a non-state armed actor which operates beyond the territorial borders of a single state and carries out serious and violent acts intended to cause fear, death, serious bodily injury and property damage to a person, group or general population in order to force a government or international organisation to perform or refrain from performing a particular act. The best example of a Transnational Armed Group is Al-Qaeda. Other examples of Transnational Armed Groups include Jemaah Islamiyah and the Palestine Liberation Organisation. However, these particular Transnational Armed Groups are more limited in geographical scope and vary in organisation and objectives. At present, Al Qaeda is the only Transnational Armed Group operating on such a wide geographical basis with training grounds in Pakistan, Afghanistan and Uganda. Al-Qaeda has also proven itself to be global in outlook by carrying out attacks in locations such as Madrid, London, Bali, Karachi and New York.

Two requirements define the scope of application of CA3: (1) the existence of an armed conflict; and (2) that it is a non-international armed conflict. However, characterising attacks by Transnational Armed Groups as an armed conflict within the meaning of CA3 raises major policy questions. First of all, ascribing ‘belligerent’ or ‘combatant’ status to members of Transnational Armed Groups might invest members of such groups with rights and privileges under International Humanitarian Law (IHL). Secondly, the classification of attacks by Transnational Armed Groups as an armed conflict may also symbolically aggrandise the Transnational Armed Group by suggesting that states consider them much more than a sinister criminal organisation. Lastly, categorising attacks by Transnational Armed Groups as an armed conflict could also immunise members of such armed groups from prosecution for proportional attacks directed against military targets. As a result of these issues, it is difficult to categorise attacks by Transnational Armed Groups under either traditional perceptions of war or contemporary ideas of armed conflict. Nevertheless, the attacks do exhibit several characteristics of armed conflict including their purpose, coordination and intensity.

Nevertheless, the question whether CA3 regulates armed attacks by Transnational Armed Groups still remains. The text of CA3 provides very little guidance on the issue. In reality, the text of CA3 is only helpful in determining the type of armed conflicts it does not regulate by identifying its field of application as ‘armed conflict not of an international character.’ Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) has arguably clarified the definition of armed conflict in IHL. In particular, the Appeals Chamber in Prosecutor v. Tadic (Tadic) concluded that:

[A]rmed conflict exists whenever there is a resort to armed force between States and protracted armed violence between … such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal armed conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole of the territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place.

Two features of this definition clarify the definition of ‘armed conflict.’ First of all, the definition suggests that an armed conflict exists only if the armed group controls a segment of the state’s territory. Secondly, the definition categorises internal hostilities as an armed conflict only if the violence is protracted. Jinks notes that both requirements would limit the conditions under which CA3 applies. Even though the definition laid down by the ICTY is persuasive, a careful reading of the Tribunal’s reasoning makes clear that it does not restrict the scope of application of CA3 to Transnational Armed Groups.

The Tribunal’s definition does not necessitate that armed groups have control over territory within the state. The Tribunal defines the circumstances in which IHL applies by carefully analysing its general scope of application, the temporal scope of application and the territorial scope of application. Jinks notes that by defining the territorial field of application for non-international armed conflict the ICTY confirms that IHL is applicable in territory that is no longer under the control of the state and in the whole of that territory.

In addition, the ‘protracted’ armed violence prerequisite does not limit the application of IHL in any considerable way. The conclusion reached by the ICTY Appeals Chamber in Tadic indicates that most instances of internal violence would satisfy this requirement. Whether the internal violence is protracted is determined by reference to the entire time period of the armed hostilities from the initiation to the cessation of the hostilities. Moreover, IHL applies to all acts committed during an armed conflict even if the act was committed before the point at which the ‘protracted’ threshold was crossed. To be precise, the ‘protracted’ requirement does not exclude acts committed in the early stages of a non-international armed conflict. The ‘protracted’ armed violence requirement can be best appreciated as little more than a reiteration of the rule excluding isolated and sporadic acts of violence from the scope of IHL. Furthermore, the jurisprudence of the ICTR established that armed violence over a period of a few months meets the ‘protracted’ requirement and, because of the level and intensity of the armed violence, it constituted an armed conflict within the meaning of CA3.

In conclusion, the intensity, coordination, and pattern of attacks by Transnational Armed Groups against the United States and other states make clear that attacks by Transnational Armed Groups are not simply isolated and sporadic acts of violence and constitute an armed conflict within the meaning of CA3. Attacks by Transnational Armed Groups have involved the coordinated use of force and have demonstrated their capability to operate globally even against military and diplomatic targets. It is undoubtedly clear that the organisational capacity of Transnational Armed Groups such as the Palestine Liberation Front and Al Qaeda distinguishes them from ‘mere bandits’ in that they indisputably possess the de facto capability to carry out sustained armed attacks against states.