Dominic Ongwen on trial at the ICC

This guest blog is written by LLM graduate, Claire Raissian.

The trial of Ugandan former child soldier, Dominic Ongwen commenced before the International Criminal Court (ICC) on December 6, 2016. In light of significant evidence of state-sponsored violence and governmental negligence which contributed to the destruction of communities in Acholi-land, the Ongwen case has sparked international debate on various issues, including the politics involved in the ICC’s intervention in Uganda, and the one-sided nature of this particular fight against impunity.

The Office of the Prosecutor successfully expanded the charges against Ongwen in early 2016 and he now stands accused of seventy counts of war crimes and crimes against humanity before the ICC. The charges detail grave and extraordinary levels of violence, which he allegedly led as an adult and directed against his own people including inter alia, a series of attacks on Internally Displaced Persons (IDP) camps in Lukodi, Odek, Pajule and Abok between 2003 and 2004. He is the first known person to stand trial in an international court or tribunal, accused of crimes of which he is also a victim, specifically the war crimes of cruel treatment and conscription and use of a child soldier, and the crime of humanity of enslavement. The accused has pleaded not guilty to all of the charges and claims that he is a victim of the LRA, and does not personify the group.

The Ongwen case has not only prompted a questioning as to the effectiveness or otherwise of measures of international protection available to child soldiers, but has also led international legal actors to revisit the debate regarding the propriety of a prosecutorial response to perpetrators of mass atrocity in the context of transitional justice.  Revisiting this now requires a reframing of the debate in the context of child soldiers, specifically young abductees who were forcibly recruited into an armed group and used to participate in hostilities. Although Ongwen may be a unique defendant, he represents thousands of children in this respect. 

The significance of the international criminal law response to Ongwen’s case is further underlined in that it will contribute to what is known as a “paradigm of transitional jurisprudence”  and additionally set a sort of precedent in international law,  the implications of which may resonate in post-conflict  northern Uganda and beyond for many generations to come. The peace that exists in northern Uganda may be termed a ‘negative peace’ where the root causes of the conflict have not yet been addressed and no formal agreement has been signed to establish it. In fact, Joseph Kony remains at large today and the LRA continues to abduct children.

Whether the prosecution of Dominic Ongwen could factor in the establishment of positive peace in the region is unknown, however it is improbable that the law can play a constructivist role in rebuilding this particular rural society, where the legal response takes the form of an international criminal trial of a former child soldier, who many in the community consider to be a victim due to the fact of his abduction at a young age.

According to the facts of the case, Dominic Ongwen was approximately nine years old when he was abducted by the Lord’s Resistance Army (LRA), as he walked to school.  After a period of induction during which time he was tortured, enslaved and trained to fight, he was initiated into the group and afterwards rose through the ranks, eventually becoming a commander of the Sinia Brigade. His rapid ascension was due to the fact that he was an efficient killer, a loyal fighter, and because he survived when his superiors did not.  These promotions guaranteed him material advantages and personal security, while simultaneously diminishing the likelihood that he would ever return home. The LRA employed a mixture of cruelty and brainwashing to break down their abductees, at once subjecting them to slave labour, beatings and threats, while instilling their political ideology and convincing them that they were fighting, with their allies, to overthrow the Government and to improve the lives of the Acholi people.

Loyalty, Michael Wessells asserts, was used by the LRA as an incentive for rewards that would be received once the fighting was over. Kony was exceptionally skilled in his employment of tactics when breaking down the children, also drawing on the strong belief in the world of spirits that is inherent to the Acholi culture. For child abductees often, “the sense of survival does not necessarily dissipate and that dependence on the organisation never abates even when a commander moves up the ranks.”

Much later on, in 2007 Kony would order the murder of Vincent Otti, his second in command and Ongwen’s former teacher, or lapwony. Ongwen would not defect until 2015, when he surrendered to US forces in the Central African Republic (CAR) and was then taken into the custody of the ICC in The Hague.

Fatou Bensouda, in her opening statement as Chief Prosecutor, stated that the purpose of the Ongwen trial is to establish the ‘whole truth’ in relation to the crimes of which he stands accused. The binary nature of international criminal law cannot, however accommodate the nuances intrinsic to establishing the whole truth in this case. Ongwen is regarded by many to occupy a grey area in law by virtue of the fact of his abduction and initiation at a young age however, the need for the prosecution to establish his guilt as a perpetrator must mean that his more ambiguous status as a victim-perpetrator is thereby voided.

Erin Baines, who co-founded the Justice and Reconciliation Project (JRP) said that; “In Ongwen’s case, the morally superior concept of ‘child soldier as a victim’ collapses. But so too does the personification of evil into the image of a perpetrator.”

In a JRP Report it was noted that a failure by international legal interventions to formally address the truth and reality of the complex political victim in a post-conflict situation, and the consequent denial of their access to justice, may fuel the social exclusion and construction of “the other” which is the initial step in the creation of a dehumanised subgroup, and may lead back to violence. Neither the ICC, nor the government amnesty in Uganda make provision for such individuals, treating victims and perpetrators as “homogenous groups” and distinct from one another.

With this in mind, Baines expanded on Erica Bouris’ theory of victim agency when she wrote about Ongwen a year later, introducing the concept of a “complex political perpetrator” as someone who is forced to act within the parameters of an extremely violent rebel group, where they have grown up in such extreme devastation that their everyday life and surroundings are in a state of “chronic crisis.”

The exoneration of Dominic Ongwen is not however countenanced by the JRP, nor anywhere here. However, I concur with the observation that was made by them upon his indictment by the ICC, that in issuing the warrant for his arrest as one of the architects responsible for orchestrating the LRAs operations, the ICC cannot simply gloss over the fact that he was “[…] once a child who was unprotected, abducted, indoctrinated, brutalized and forced to commit heinous acts.” The temporal jurisdiction, limited as it is to crimes committed after 2002 probably means that, “[T]he culpability of Ongwen in the wider context of mass, collective victimisation of children in northern Uganda was likely not factored into the decision to issue warrants for his arrest.”

It is now for the Trial Chamber IX to decide whether Ongwen is guilty of his alleged crimes and whether he acted by his own volition as an adult, or whether he was subjected to such deeply entrenched duress, that as his defence team asserts, his “so-called rank was demonstrative of one thing: that he was surviving better than others while under duress.”

 

 

Racial Stereotypes in Family Reunification Law: the case of Biao v. Denmark before the European Court of Human Rights

Dr Fulvia Staiano, former Irish Research Council Post-Doctoral fellow, CCJHR, School of Law, University College Cork

On 24 May 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) identified an instance of indirect discrimination in the case of Biao v. Denmark. The case concerned the exclusion from family reunification of the applicants – a Danish citizen of Togolese origin and his Ghanaian citizen wife – on the grounds that they satisfied neither the so-called “attachment requirement” nor they fell within the scope of the “28-year rule”. As to the first, pursuant the 2000 Dutch Aliens Act only couples whose aggregate ties with Denmark are stronger than those with any other country may obtain a residence permit for the purpose of family reunification. The 28-year rule, however, exempts from such a requirement couples where one of the partners has been a Danish national for at least 28 years, or is a non-Danish citizen who was born and/or raised in Denmark and has lawfully resided there for at least 28 years.

Before the ECtHR, the applicants argued that the Danish family reunification regime generated indirect discrimination on the grounds of race and ethnic origin. They submitted that the majority of people who have been Danish citizens since birth are ethnically Danish, while those who acquire Danish citizenship later in life are more likely to be of other ethnic origin. Therefore, in their view the 28-year rule did not pursue a legitimate aim, and in any case it lacked a legitimate justification. The second section of the Chamber had not been receptive to this line of argumentation, choosing to frame the case merely as one of differential treatment between persons who had been Danish nationals for more than 28 years and persons who had been so for less than 28 years. The Grand Chamber, on the other hand, established that the core question posed by Biao was whether the 28-years rule amounted to indirect discrimination on the grounds of race and ethnic origin.

The ECtHR first assessed the existence of a disparate impact of the rules at issue on Danish citizens of non-Danish ethnic origin. Despite the unavailability of statistics on the allegedly disproportional prejudicial effect of the 28-year rule on this group, it established that it could be reasonably assumed that Danish citizens born and raised in Denmark would be of Danish ethnic origin – while those who acquired citizenship later in life would be of foreign ethnic origin. Thus, the 28-year rule indirectly favoured the former.

The ECtHR then moved on to consider the existence of a legitimate aim, considering that the burden of proof had shifted to the Government and that very weighty reasons would have to be put forward to justify the identified indirect discrimination. The ECtHR observed that the aim of the 28-year rule – as emerging from its preparatory works – was to allow Danish expatriates to return to Denmark and obtain family reunification there. Moreover, the extension of the attachment requirement to Danish citizens was justified in the preparatory works as a way to foster the integration of those among them who were originally of foreign extraction. In the Government’s view, indeed, the latter showed a tendency to marry persons from their country of origin, and this in turn allegedly hampered their integration. Recalling its landmark judgment of Konstantin Markin v. Russia, the ECtHR rejected such justifications as stereotypical. These biased assumptions therefore could not justify the difference in treatment at the disadvantaged of naturalised Danish citizens. Since it was not possible to identify other very weighty reasons unrelated to race and ethnic origin, the ECtHR recognised a breach of Art. 14 in conjunction with Art. 8 ECHR.

The Biao judgment constitutes an important deviation from the traditional reticence of the ECtHR to identify and reject stereotypical justification on the grounds of race and ethnicity within migration law. This feature was already observable in Abdulaziz, Cabales and Balkandali v. the United Kingdom, where the imposition of stricter conditions to obtain leave to remain in the United Kingdom exclusively to non-patrials was considered not “racist in character”. In the ECtHR’s view, the disparate impact of such norms on certain ethnic groups was simply due to the fact that “among those wishing to immigrate, some ethnic groups outnumbered others”.

In the case at issue, on the other hand, the ECtHR recognised the discriminatory character of racial stereotypes, arguing that the latter may not justify differential treatment. This type of reasoning is well established in the ECtHR jurisprudence in respect to gender stereotypes and sex discrimination (Marckx v. Belgium, the abovementioned Konstantin Markin, Vrountou v. Cyprus), but its application to race discrimination is a welcome novelty.

The effects of the Biao judgment on the Danish 28-years rule remain to be seen. Both concurring and dissenting opinions accompanying the decision highlighted the risk that the exemption from the general attachment requirement will be eliminated altogether. The possibility of further restrictions to the right to family reunification in Danish law in response to this judgment appears plausible. However, the principles established in Biao constitute an important limitation to the discretionary power of Council of Europe State Parties to grant preferential treatment to those born on their territory (as outlined from Abdulaziz onwards). The newly found awareness of the ECtHR that such differentiations can produce a disparate impact on the grounds of race and ethnic origin is a significant dent to this tenet.

Dr Fulvia Staiano’s recent book is now available: The Human Rights of Migrant Women in International and European Law (2016)

 

On World Refugee Day: a crisis of protection in Europe

REFUGEES: A CRISIS OF PROTECTION IN EUROPE  (Siobhán Mullally)

UNHCRThe crisis in Europe is more properly understood as a crisis of protection and of policy. It is fundamentally a crisis of human rights. Core protections provided to refugees and migrants by European and international law, including the right to seek and to enjoy asylum from persecution and protection against refoulement, have come under threat. Faced with forced displacement of almost five million Syrian refugees, the focus of responses has continued to be on deterrence, deflection and return. As Wendy Brown has noted, at a time when neoliberals, cosmopolitans and humanitarians fantasize a world without borders, nation-states continue to exhibit a passion for wall building. In the European Union, the ‘stark physicalism’ of walls and fences have been supplemented by the launching of a military operation, EUNAVFOR-Med, which includes among its stated aims, the prevention of loss of life at sea, preventing ‘illegal migration flows’ and disruption of the ‘business model of smugglers’.

The business model of smugglers, however, is closely linked to the limited accessibility of pathways to regular migration, and the absence of a comprehensive resettlement response to the humanitarian crisis triggered by millions of people forcibly displaced by conflict.  The reluctance to issue humanitarian visas, or to expand the scope of family reunification, combined with continued use of carrier sanctions underpins the very business model that the EUNAVFOR-Med operation seeks to disrupt. Within the context of the EU’s Common European Asylum System, the uneven sharing of responsibility for protection among Member States, and divergence in the protection afforded to refugees and asylum seekers, remain to be addressed. Against this background, core principles underpinning the EU’s foundational treaties – fair sharing of responsibility and solidarity – are not being met.

This crisis raises questions as to the limits and potential of human rights norms, when invoked by migrants and refugees. As such, it also raise questions as to the current state of play of both the theory and practice of international law, and the conflicting interests that underpin its shifting frontiers. These conflicts include legal reforms that reflect, as Brown notes, simultaneous opening and blocking, ‘universalization combined with exclusion and stratification’ – an apt description of the politics of the 2016 EU-Turkey agreement.   

Protection against refoulement

The Agreement – including its very legal status as an ‘Agreement’ – is now the subject of several challenges that raise questions as to its compatibility with the prohibition of refoulement. Recent judgments of the European Court of Human Rights have highlighted the positive procedural obligations on states arising from Article 4, Protocol no.4 to the Convention. In Klaifia and Others v Italy – (a case now pending before the Grand Chamber) – the Court held, by five votes to two, that the applicants had been subjected to a collective expulsion. The ‘mere introduction of an identification procedure’ was not considered sufficient in itself to rule out the existence of a collective expulsion. A number of factors led the Court to the conclusion that the impugned expulsion was collective in nature: There was no reference to the personal situation of applicants in the refusal-of-entry orders; there was no evidence that individual interviews concerning the specific situation of each applicant had taken place prior to the issuance of the orders; and perhaps, most tellingly, a large number of Tunisian nationals – the same nationality as the applicants – received the refusal-of-entry orders around the same time. Khalifia followed on from earlier judgments by the Court on collective expulsions, Hirsi Jamaa and Others v. Italy and Sharifi and Others v. Italy and Greecein which the absence of ‘sufficient guarantees’  demonstrating that the personal circumstances of each of the migrants concerned had been ‘genuinely and individually taken into account’ was critical.

These judgments of the Court weigh heavily on the legal issues arising under the implementation of the EU-Turkey agreement. The judgment of the Court in Khalifia is particularly instructive, given its references to ‘exceptional waves of immigration’, and its acknowledgment of the many duties assumed by the Italian authorities, including rescue at sea, and provision for the health and accommodation of migrants on arrival on the island of Lampedusa. In a particularly important statement, the Court noted, however, that those factors cannot exempt the State from its obligation to guarantee conditions that are ‘compatible with respect for human dignity to all individuals’.

The collective expulsion cases reveal a willingness on the part of states to test the limits of legality, including of the safe third country concept. In Khlaifia, Judge Keller, noted that the preliminary investigations judge of Palermo had invoked the state of necessity (stato di necessità) to justify the ‘immediate transfers’ of migrants. This argument, and related arguments concerning international law and state responsibility in times of ‘distress’, were rejected by Judge Keller.

The rush to conclude the Agreement is likely to come under continuing scrutiny, particularly given the trust placed in the Greek asylum determination procedures and capacity for reception. At the time its conclusion, the Committee of Ministers of the Council of Europe had not yet closed its supervision of execution of the judgment in M.S.S. v. Belgium and Greece.  Of particular note in the Court’s judgment, is the Concurring Opinion of Judge Rozakis, in which he took the opportunity to highlight the deficiencies of EU immigration policy, including the Dublin II Regulation (as it then was). The Regulation, he noted, did not reflect the present realities, or ‘do justice to the disproportionate burden that falls to the Greek immigration authorities.’ His comments were prescient, and have only increased in relevance subsequently. There was, he said, ‘an urgent need for a comprehensive reconsideration of the existing European legal regime.’ Despite this urgency, however, this comprehensive reconsideration has yet to be realised. Proposals for a fairer process of allocation of responsibility continue to be contested. Against the background of a ‘crisis situation in the Mediterranean’, even the limited ‘temporary and exceptional’ relocation decision adopted by the European Council in 2015 is facing legal challenges by Hungary and Slovakia.

In a carefully worded assessment of the legal considerations of returning asylum seekers and refugees from Greece to Turkey, UNHCR cautions that ‘sufficient protection’ must be ensured before the safe third country and first country of asylum concepts can be applied. The requirement of ‘sufficient protection’ is stated in Article 35 of the Recast Asylum Procedures Directive, and is considered by UNHCR to require more than a guarantee against refoulement.

The legislative reforms and the legal underpinning of the Agreement itself, however, was challenged by a decision of a Greek appeals tribunal, sitting in Lesbos, refusing to recognise Turkey as a safe third country. The tribunal decision found that the temporary protection afforded by Turkey to the appellant, as a Syrian citizen, ‘does not offer him rights equivalent to those required by the Geneva convention.’ The decision echoes concerns expressed with regard to the level of protection afforded in Turkey, and brings into question the EU’s presumptions as to the legality of its return and resettlement trade-off.

The position of children on the move, and in particular, unaccompanied minors, in Europe has attracted particular concern. In March 2016, the Council of Europe Secretary General wrote to all 47 Member States of the Council of Europe setting out a list of proposals for immediate action to ensure better protection of migrant and asylum seeking children. The GRETAletter cites the findings of the Council of Europe Group of Experts on Action against Trafficking (GRETA) that significant gaps in the protection of unaccompanied minors persist in most Council of Europe Member States, with often tragic consequences.[1]

The phenomenon of ‘missing migrant children’ is not new. However, the conceptual and practical challenges posed by increasing numbers of migrant children in Europe has brought the limits of state responses into sharp focus. Against this background, the question of how child and adolescent migrants can translate the principles of international law into meaningful human rights protections’ remains open.

Core norms of the Law of the Sea – obligations of search and rescue, of assisting persons in distress at sea and delivering survivors to a place of safety – have gained prominence in Europe’s crisis of protection. There have been significant failures of the maritime legal framework, including disputes as to the proper demarcation of Search and Rescue zones, and significant loss of life – tragically captured in Dutch MEP, Tineke Strike’s report on the ‘left-to-die’ boat incident. While the technical norms of the Law of the Sea have sometimes provided a comforting tool to allay fears of further dereliction of duty, moving beyond rescue has proven more difficult.

The EU-Turkey agreement marks a process of de-juridification, an enactment of limits. While legal challenges and the claiming of rights will persist, the fundamental reforms required to ensure safe passage to those seeking protection, and the expansion of pathways to lawful migration, remain elusive.

[1] Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA), Fifth General Report on GRETA’s Activities, (2016)

Mellet v Ireland: Legal Status of the UN Human Rights Committee’s ‘Views’

MellettFollowing the UN Human Rights Committee’s decision in Mellet v Ireland, handed down on June 9th 2016, a number of questions have been raised as to the legal status of the Committee’s views. The Taoiseach Enda Kenny has noted that the Committee is not like the ‘European Court’. On this, he is, of course, correct. On his comment that the Committee’s views are ‘non-binding’ – it’s a bit more complicated.

This short post focuses on the questions raised as to the legal status of the Committee’s views, and the obligations that they give rise to for the State. While this may seem to be a point of limited interest to international lawyers, it is in fact a critical issue for the enforcement and implementation of international human rights law. Challenges to the competence of UN bodies, and the status of their findings in the human rights domain, are not infrequent. This challenge, and the consequent enforcement gap, is one that has been recognised by the UN Human Rights Committee.

Its General Comment no.33 “The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights” specifically addresses this challenge. As the Committee notes, its functions in considering individual communications are “not that of a judicial body,” However, they go on to point out that the views issued by the Committee under the Optional Protocol exhibit some important characteristics of a judicial decision, and are ‘arrived at in a judicial spirit’. That ‘judicial spirit’ includes, ‘the impartiality and independence of Committee members, the considered interpretation of the language of the Covenant, and the determinative character of the decisions.’ (para.11)

The legal basis for the Committee’s competence to issue ‘views’ on individual communications and State’s compliance, or lack thereof, with the Covenant, derive from the Covenant and the Optional Protocol themselves. On this, it is of interest to note that the Protocol is an optional extra. Ireland, has chosen not only to ratify the Covenant itself, but also the Optional Protocol, thereby specifically recognising the competence of the UN Human Rights Committee to give an authoritative interpretation of the State’s obligations under the ICCPR. Specifically, as noted by the Irish Supreme Court in Kavanagh v Governor of Mountjoy Prison,  [2002] IESC 13 (01 March 2002),the Optional Protocol enables the Human Rights Committee “to receive and consider …communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant …..” Article 1 of the Protocol provides that a “State Party that becomes a party to the …. Protocol recognises the competence of the Committee…” in respect of such individual claims.

The status of the Committee’s views and the competence of the Committee are linked to wider principles of international law, including those stated in the Vienna Convention on the Law of Treaties. The principle of pacta sunt servanda is enshrined in Article 26 of the VCLT: ‘Every treaty in force is binding upon the parties to it and must be performed in good faith.’

Linked to this general principle is a core norm of customary international law and one that is particularly relevant to the current debate in Ireland: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. (Article 27 VCLT). This is without prejudice to the provisions of Article 46 of the VCLT, concerning the competence of states to conclude treaties. And, in the Irish context, the precise legal meaning of the reference to a provision of internal law regarding competence to conclude treaties has generated both litigation and debate, particularly with regard to Ireland’s relationship with the European Union, and to Anglo-Irish relations (See Crottey and McGimpseyin particular). (See Clive Symmons comments on this potential clash here).

Of relevance also to this debate is the characterization of an act as a ‘wrongful act’ under international law, and the International Law of State Responsibility. As noted by the International Law Commission, affirmed by the General Assembly, the characterization of an act as ‘internationally wrongful’ is not affected by the characterization of the same act as lawful by internal law.  It is of significance also that Article 1 of the ILC’s Articles on Responsibility of States for Internationally Wrongful Act, does not confine their scope to the responsibility of states towards other states, which, as James Crawford has noted,  would have significantly curtailed the scope of the obligations covered by the Articles and ‘could have stifled the development of international law.’

In the text of the ICCPR itself, it is important to remember the treaty obligation on all States Parties to provide an ‘effective remedy’ for a violation of the Covenant (article 2(3)(a)). This obligation is re-stated in the final paragraphs of the Committee’s views in Mellet v Ireland, and forms part of the consistent wording of its views. (See also General Comment no.33 para.14)

And so, although the Committee’s views are not those of a judicial body, and do not have a status equivalent to that of a judgment of an international court, they do have legal consequences and do give rise to legal obligations for the State. Indeed in Kavanagh v Governor of Mountjoy Prison, Justice Fennelly, speaking for the Supreme Court, commented that he was ‘prepared to assume that the State may, by entering into an international agreement, create a legitimate expectation that its agencies will respect its terms.’ (para.43)

The Irish Government has been slow in the past to give effect to views of the UN Human Rights Committee. This failure was the subject of the proceedings before the Supreme Court in the Kavanagh case, in which the appellant sought inter alia, a declaration that section 47(2) of the Offences against the State Act, 1939 was incompatible with the  Covenant on Civil and Political Rights and was repugnant to the Constitution ,in particular, Articles 29(2) and (3). The case followed on from the finding of a violation by Ireland of Article 26 ICCPR (guarantee of equality before the law) by the UN Human Rights Committee in Kavanagh v Ireland  concerning the role and scope of jurisdiction of the Special Criminal Court. The Committee upheld Kavanagh’s complaint of a violation of article 26 observing that:

“No reasons are required to be given for the decisions that the Special Criminal Court would be “proper”, or that the ordinary courts are “inadequate,” and no reasons for the decision in the particular case has been provided to the Committee. Moreover, judicial Review of the DPP’s decisions is effectively restricted to the most exceptional and virtually undemonstrable circumstances.”

The Committee went on to note that “the State Party [had] failed to demonstrate that the decision to try the author before the Special Criminal Court was based on reasonable and objective grounds.” It continued: “Accordingly, the Committee concludes that the author’s right under article 26 to equality before the law and to the equal protection of the law has been violated.”

Before the Supreme Court, Kavanagh argued that Article 29(3) of the Irish Constitution, effectively constitutionalises the general principles of international law, including the principles of equal treatment. Given the UN Human Rights Committee’s findings of a violation of Article 26 also in Mellett v Ireland, this argument takes on particular significance. In support of this argument, counsel for Kavanagh, Dr Forde, invoked the dissenting judgment of Judge Tanaka in the South West Africa Cases (1966) on “the essence and nature of fundamental rights ..[in the context of the United Nations Charter] … in which the principle of equality before the law occupies the most important part ….”

His argument, however, was not accepted by the Supreme Court. Invoking again its findings in In Re O Láighleis [1960] IR 93, the Court concluded that article 29 (3) confers no rights on individuals. While accepting that O’Láighleis  was ‘probably correct in its time’, Dr Forde had argued that the substance of the principles of international law had ‘changed so radically’ that the case would no longer be decided in the same way. Given, he argued, that these principles take effect in Irish law by virtue of article 29(3), there is thus no need for their enactment into Irish law pursuant to art 29 (6).

It was a nuanced argument, recognising the diverse sources of international law and seeking to move beyond the limits imposed by a strict dualist approach to the relationship between domestic and international law.  The Supreme Court was not to be persuaded. The O’Láighleis case, Fennelly J concluded, remains the law, having been followed in other cases: see, for example State (Sumers Jennings) v Furlong [1966] IR 183; State (Gilliland) v Governor of Mountjoy Prison [1987] 201. O Laighleis,  in his view, had ‘stood the test of time’,  because the words that it interpreted were, ‘clear beyond argument and do not admit of any other construction.’

Of interest is the somewhat different approach taken by the High Court and Supreme Court in cases concerning Ireland’s obligations under the 1951 Convention relating to the Status of Refugees. In Fakih & Ors v. Minister for Justice,[1]  the High Court held that a letter sent by the Minister for Justice to the UNHCR representative in London, Mr von Arnim, had given rise to a legitimate expectation on the part of the applicant that his asylum claim would be assessed in accordance with the procedures laid down in the 1951 Convention. In Gutrani v. Minister for Justice,[2]  the Supreme Court, speaking through McCarthy J, held that the same result followed, not because of any legitimate expectation that the letter may have given rise to, but simply because of the binding undertaking given by the Minister. Thus, the 1951 Convention, not yet incorporated into domestic law, was given indirect effect, circumventing the strict requirements of Article 29.6 of the Constitution.

(I have discussed these cases in the context of transnational judicial dialogue in asylum law in Goodwin Gill and Lambert eds. The Limits of Transnational Law (CUP: 2010) It may, of course, be of some relevance, that at the time of these judgments, giving effect to the requirements of the 1951 Refugee Convention, would have been considerably less controversial than questioning the role of the Special Criminal Court, or the interpretation of Article 40.3.3 of the Irish Constitution.)

Beyond and within the law, there is of course politics. And as the now President of the UN Committee on the Elimination of Racial Discrimination (CERD), Dr Anastasia Crickley, commented earlier this year, it is important to remember that the Irish Government in an exercise of its sovereign authority, has chosen to ratify the ICCPR and other UN human rights treaties. It has, simply by this act of ratification, incurred an obligation to ‘all those subject to its jurisdiction’ to give effect to the rights protected by the Covenant. Those rights include the right to be free from cruel, inhuman or degrading treatment, the right to be free from arbitrary interference with one’s privacy, and to equality before the law and equal protection of the law.

[1] Fakih & Ors v. Minister for Justice [1993] ILRM 274.

[2]Gutrani v. Minister for Justice [1993] 2 IR 427.

 

Human Rights and Making Change: Looking Backwards and Moving Forwards from the Northern Ireland High Court Decision on Abortion

We are delighted to welcome this guest post from Dr Catherine O’Rourke, Ulster University Transitional Justice Institute.

Catherine O'RourkeDr Catherine O’Rourke is Senior Lecturer in Human Rights and International Law at Ulster University Transitional Justice Institute. She is currently also co-coordinator of the Gender Stream of the DFID-funded Political Settlements Research Programme, where she is investigating how international law norms for gender equality influence domestic power-brokering.

In the aftermath of last week’s High Court judgment declaring Northern Ireland’s prohibition of abortion to be incompatible with UK human rights legislation in specific instances, there has been much valuable consideration of the judgment’s legal and political implications, for this jurisdiction and others.  In this contribution, I reflect on what the litigation and judgment say about human rights advocacy in Northern Ireland.

In summer 2013, in response to the Department of Health, Social Services, and Public Safety consultation on the draft ‘Guidance on the Limited Circumstances of Termination of Pregnancy’, I blogged on the need for local human rights organisations to ‘step-up’ to defend the human rights under threat by the failure of successive governments to bring clarity to abortion law in the jurisdiction, as well as the (then) urgent threat posed by the manifold potential civil and political rights violations raised by the 2013 Draft Guidance. The context for the call to local human rights organisations, including the Northern Ireland Human Rights Commission, to begin to advocate on the access to abortion as a human rights issue reflected several years of silence and inaction in the face of clear human rights concerns presented by the legal status quo. Specifically, the call reflected the failure of any local human rights organisation to support the request for an inquiry to be conducted by the CEDAW Committee under the Convention’s Optional Protocol into access to abortion in Northern Ireland.

Since summer 2013, much has changed. While I was writing my call for the local human rights community to ‘step up’ on abortion and human rights in Northern Ireland, the Committee on the Administration of Justice, Amnesty International and the Northern Ireland Human Rights Commission were all preparing responses to the consultation on the 2013 draft Guidance, emphasizing the manifold human rights compliance concerns raised therein. NI Abortion AmnestyAmnesty International has made reform to abortion law in Northern Ireland one of its priorities in its ‘My Body, My Rights’ campaign, involving inter alia the excellent report ‘Northern Ireland: Barriers to Accessing Abortion Services’. The Committee on the Administration of Justice has started to include access to abortion as a human rights concern in its 2015 shadow reporting to CESCR and to the Human Rights Committee. This marked an important new departure for a human rights organisation that had not previously raised the issue of abortion even in its shadow reporting to the CEDAW Committee.

NIHRCThe transformation of the approach of the Northern Ireland Human Rights Commission to abortion is arguably the most notable of all. In its 2008 Guidance to the Secretary of State on the proposed content for a Bill of Rights for Northern Ireland, the Human Rights Commission included only one reference to abortion:

The issue of women’s rights in respect of reproduction, and especially the issue of termination of pregnancy, has been one of the most controversial in the Commission’s consultations on a Bill of Rights for Northern Ireland. Forceful and deeply felt submissions have been made, in respect of a right to life for unborn children and in respect of a right of choice for women. There is no clear widely accepted international standard in respect of the underlying issues. (emphasis added)

In 2015, the Commission initiated the judicial review proceedings that were to ultimately prove successful in last week’s High Court decision, determining that Northern Ireland’s prohibition of abortion in cases of fatal foetal abnormality and in cases of sexual crime, up to the date when the foetus can exist independently, is incompatible with UK human rights legislation. The proceedings included also a third party written intervention from the Amnesty International Belfast office, in addition to Alliance for Choice, the Family Planning Association, Sarah Ewart and a number of anti-choice organisations.

Why the change and where to from here? When considered within the broader context of human rights advocacy in Northern Ireland, the significance of the litigation and its outcome is even more apparent. Local developments in human rights advocacy in Northern Ireland reflect – and were no doubt reinforced by – important legal developments in the European Court of Human Rights jurisprudence on access to abortion since Tysiac v Poland, and developed most notably through A,B,C v Ireland, RR v Poland and P and S v Poland. For rights issues that are locally contentious, such as abortion, the clear articulation of regional human rights obligations can be helpful in emboldening and providing cover for local human rights organisations to take on such issues. (There are inevitably limitations, however, in a human rights approach that articulates right of access to abortion in limited circumstances as a matter of private and family life, but not as a matter of gender equality.) The importance of the international is also evident from the central role of Amnesty International’s Belfast office to the litigation and surrounding press and public affairs activity. Amnesty International adopted the ‘My Body, My Rights’ campaign at a global level and, since then, has pursued a very active local campaign on abortion and human rights, in coordination with local pro-choice groups and constituencies. Arguably important also has been the diversification of human rights advocacy more broadly in the jurisdiction. From the traditional almost exclusive focus on conflict and post-conflict accountability issues (which I document in chapter 3 of my book, Gender Politics in Transitional Justice), contemporary human rights advocacy in Northern Ireland now takes in a broad swathe of issues from marriage equality to mental health and many others.

Taken together, these international, regional and locally-led developments have created a very changed context for pro-choice advocacy in Northern Ireland. Whereas human rights and pro-choice organisations traditionally maintained separate spheres of activity, with little cooperation or interface, last week’s High Court judgment evidences the potential effectiveness of coordinated strategies across human rights and pro-choice groups. Looking forward, as we consider strategies for translating the High Court judgment into progressive legal change, the particular skills of the human rights community in activating international scrutiny, combined with the critical role of pro-choice groups in continuing the articulate the essential equality arguments in working for social change, offer reasons for optimism.

 

 

Recognition, Equality and Marriage

MarriageThe expansion of equality laws and the adoption in Ireland of a ‘modern equality code’ (to borrow from former Minister for Justice, Mr Dermot Ahern T.D.), has addressed many of the inequalities that perpetuated discrimination and prejudice in Ireland – but not all.  The introduction of civil partnership in Ireland was an important step towards a more equal regime of relationship recognition, but it did not secure either formal or substantive equality in law for gay and lesbian communities in Ireland.

Extending and opening up civil marriage to same sex couples seeks to bring an end to legally sanctioned discrimination, by providing constitutional recognition to same sex relationships. As the campaign posters note, it does nothing more, and nothing less.

EquinetAs Ireland’s National Human Rights Institution, and National Equality Body, the Irish Human Rights and Equality Commission has expressed its view that ‘the opening out of civil marriage to two persons without distinction as to their sex is a matter of equality and human rights.’ Recognising that marriage is celebrated in Ireland as ‘a key part of an individual’s and a family’s participation in the social and cultural life of the State’, the Commission concludes that the current constitutional position relating to marriage does ‘not provide full recognition and equality of status for same-sex couples’.

Fundamentally, this referendum is about equal recognition, and about the normative, symbolic and practical value of constitutional texts and equality guarantees. The significance of such recognition has been recognized by many constitutional courts worldwide. The Canadian Supreme Court, in Egan v Canada, has held that ending discrimination is fundamentally about ‘recognition’. Excluding same sex couples from marriage, they held, perpetuates the view that same sex relationships are less worthy of recognition than different sex relationships.

In the United States v Windsor, the U.S. Supreme Court pointed out that in providing legal recognition to the Canadian marriage of Ms Windsor and her spouse, the State of New York had ‘enhanced the recognition, dignity, and protection’ of same sex couples.

These statements were echoed in the Irish High Court in Zappone and Galligan, where Dunne J noted  – in a comment that remains very relevant today:

‘…there are two individuals at the heart of this case who have spoken eloquently of the sense of social exclusion they feel by virtue of being denied entry to the institution of marriage.’

The words of Marshall C.J. in the Massachusetts case, Goodridge, were also extensively cited by the High Court:

Recognising the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite sex marriage,…. If anything, extending civil marriage to same sex couples reinforces the importance of marriage to individuals and communities.

In Minister of Home Affairs and Another v Fourie and Another, the South African Constitutional Court stated that denying same sex couples the right to marry, negated their right to self-definition ‘in a most profound way’.

These are not abstract judicial statements. They recognise the everyday injuries and harms, caused by legally sanctioned exclusions from the institutions that function as markers of equality and recognition in Irish society.

The words of CJ Warren in Loving v Virginia are often cited in debates on marriage equality, and rightly so:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma,316 U. S. 535, 316 U. S. 541 (1942).

The ‘unsupportable’ racial classifications impugned in the proceedings before the Court were he said, ‘directly subversive of the principle of equality’.  There can be, he said, ‘no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification’. In the forthcoming referendum, we are being asked to rewrite the text, and to dismiss the invidious and subversive distinctions that limit recognition of the equal worth of same sex relationships.

Gender, and the regulation of gender roles within the family remains at the heart of the referendum debate, though less attention has been paid to this aspect of the campaigns to date. In the 1873 Supreme Court case of Bradwell v. Illinois, Justice Bradley stated clearly the link between women’s societal roles and the institution of marriage:

“The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman …[]..The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.”

As Judge Bradley’s quote indicates, the marital family was defined by distinct and hierarchical roles across gender. The ideology of separate spheres that underlies Judge Bradley’s statement continues to be reflected in the Irish Constitution – in the gendered reference to “women’s duties in the home” and in legislative exclusions of same sex couples from the institution of civil marriage. Such gendered divisions are appealed to yet again, in this referendum, as they have frequently been in Submissions to UN human rights treaty bodies, and in resistance to constitutional and legislative change.

The Child and Family Relationships Act 2015 is a significant step towards securing the best interests and rights of all children and families in this State. The (much delayed) coming into force of the 31st Amdt to the Constitution gives constitutional recognition to the best interests of the child. These constitutional and legislative protections for children will not be diminished if marriage equality is introduced into Irish law, contrary to the views expressed in several confusing and confused statements about the forthcoming marriage referendum. If anything, the rights of children and the constitutional protections of family life will only be strengthened by a move towards a more inclusive and equal society, and by the constitutional recognition of an equal right to marry for same sex couples.

Generating traditional values: on the Marriage Referendum

Aengus UNAengus Carroll is a PhD candidate in international human rights law at UCC and author of State Sponsored Homophobia: A World Survey of Laws: criminalisation, protection and recognition of same-sex love, 2015, launched by the UN Office of the High Commissioner of Human Rights in Geneva on 13 May 2015.

Generating traditional values: Tradition is a powerful political force in all cultures around the world. Indeed many would identify that culture itself is largely defined by the traditions of a place. Increasingly, the demands of implementing human rights law in national settings conflict with states’ traditions regarding issues of female genital mutilation, child brides, women driving cars and the imprisonment, or execution of gays and lesbians, as examples.

ILGALegislation in every country in the world discriminates against LGBT people in penal or civil codes to some degree: 76 criminalise, 10 have the death penalty, and only eight have constitutional bans on discrimination based on sexual orientation. They generally discriminate by exclusions from, or non-inclusions in, legal protections provided to others. Enacting law, or indeed codifying the constitution, that differentiates a class of people based on a particular characteristic is discrimination whether in Ireland, Uganda or Russia. It just is. And the more the public discusses the issues, the more clearly that fact is realized.

Claiming that treating difference differently is not inequality when there are direct and known burdens being carried by the excluded class of person is a false paradigm worthy of Brave New World. Lately, in the print edition of the Irish Times of 16 May 2013 but curiously not headlined as such online, Breda O’Brien’s offering was “New Thought Police Push Dogmatism and Intolerance”. In it she expressed dismay about how the Irish National Teacher’s Organisation “intend to normalize same sex marriage” to children “as young as four”.  Her observation about normalizing, reveals her true position that same sex relations are not normal, and we should not teach kids it is.

This is exactly the logic that has informed laws in Russia, Nigeria, Lithuania and Algeria of the last two years about the ‘propaganda of homosexuality to minors’ resulting in the repression on privacy, freedom of expression, association and other core human rights. These attitudes share themes: fear of a gay-friendly education, and fear of the commodification of reproductive technologies. Since earlier this year, 220 million US citizens now live under equal marriage laws. Children across 37 states are being taught that its okay to be gay, that some people have same sex parents and others don’t. This has been the case in Massachusetts since 2004 where there are a lot of respectful young people around.

The No campaign state there is no human right to same sex marriage (while accepting that there is an equivalent right to different sex marriage). What the European Court of Human Rights actually said is that it was not prepared to compel States to recognize marriage regardless of ‘sex’ at this time. The wriggle room the Court affords to states to figure out weighty social issues, known as the margin of appreciation, tends to run out. This happened in the transgender legal recognition case in Goodwin in 2002 after 20 years of ‘grace’ and prior cases at the Court. The Court did not say that marriage between people of the same sex is not a human right – that is blatant misinformation by the No campaign – the Court just has not affirmed it is. Yet.

Tradition is something that has always evolved, and this is how it is ‘owned’ and passed on by the generations. Marriage, as so many have pointed out already, has changed utterly since women were the vehicles for property and progeny (much like livestock). As Professor Lee Badgett (who writes about the economic cost of homophobia globally) in her extensive research found, in today’s world attitudes to marriage are primarily about human companionship. This then means it is less about the gendered historical, marital roles on which traditional marriage is predicated. Where there are children, the privilege vested to parenthood is given legal shape by a society that supports all familial forms equally.

It beggars belief to accept that this somehow means it’s all about selfish adults with their commodified children modeled as accessories, who put themselves and not their children first. The No posters that elevate a mother’s love as ‘irreplaceable’ sneakily mislead: the person who brings you up and holds you close and gives you the love and protection that all babies and children flourish within is irreplaceable, and these bonds need to be supported, with whoever that is.

The inference being made by the No campaign is that same sex partners are intrinsically ‘unnatural’ in their familial construction, because they may need assistance in the reproductive process. Just extend that to other people that need medical assistance and you see its rather twisted logic. This line of argument posits that rights claims are actually the ‘promotion of homosexuality’ in a new liberalized human reproduction industry. In effect, this position actually attacks the core and intrinsic identity of gays and lesbians. If followed through it in fact seems to suggest a mal-intent on behalf of same sex partners, and it may be very interesting after the referendum is over to examine the nature of such speech. It might be that the cautionary tendencies of many mild ‘Don’t Know’ voters are being triggered by fear stoked all in the name of tradition.

 

Launch of World Report on State Sponsored Homophobia

ILGAWe are delighted to welcome this guest post from Aengus Carroll, PhD researcher at University College Cork, School of Law. Aengus has a long track record of research and advocacy in the field of sexuality rights, and this year, is the co-author of the landmark ILGA publication State-Sponsored Homophobia: A World Survey of Laws: criminalisation, protection and recognition of same-sex love.

ILGA : World Survey of Laws  On 13 May 2015, the 10th edition of State-Sponsored Homophobia: A World Survey of Laws: criminalisation, protection and recognition of same-sex love will be launched by ILGA (the International Lesbian, Gay, Bisexual, Trans and Intersex Association), in Geneva. The Report will be launched by UN High Commissioner, Mr. Zeid Ra’ad Al Hussein, in Geneva.

Alongside an in-depth report, ILGA produces the World Map, which is very widely disseminated across the globe, and referred to as an authoritative source on the nature and numbers of existing criminalising States. The 9th edition from 2014 version of the report can be found at: http://old.ilga.org/Statehomophobia/ILGA_SSHR_2014_Eng.pdf, and the map can be downloaded from: http://old.ilga.org/Statehomophobia/ILGA_Map_2014_ENG.pdf. Both of these are translated into the six official UN languages, and are disseminated directly to ILGA’s 1,100 member organisations, a very wide range of ally organisations in various sectors, as well as to all UN country and regional desks and targeted individuals at the United Nations in Geneva and New York.

The only global document of its kind produced on an annual basis, as its name suggests it includes a listing of, information on and links to laws under a series of headings: same-sex sexual behavior legal or illegal, non-discrimination in the workplace, (un)equal age of consent, marriage and partnership rights, and so on. Further, it lays out the texts of the laws in criminalising states – specifying what exactly is being outlawed (for example, “sodomy”, “buggery”, “acts against nature”, “homosexuality”), and provides links to the Gazettes or legal instruments in which these legal provisions are found. In the entries on these states, the authors have researched state responses to recent recommendations at the Universal Periodic Review, Treaty Bodies and other UN mechanisms.

The final section of the publication is a series of essays on developments in sexual orientation activism in legal and policy spheres from legal experts worldwide. In this year’s edition, there will be an essay on intersectionality in LGBTI activism from the international NGO, Sexual Rights Initiative, as well as an essay on sexual orientation and gender identity developments at the UN.

ILGA moved their offices from Brussels to Geneva in 2014, having achieved ECOSOC status in 2013. Last year the publication was launched by outgoing UN High Commissioner for Human Rights, Navanethem Pillay, and this year it will be launched by the new High Commissioner, Mr. Zeid Ra’ad Al Hussein. High-level interest in the publication is growing and it is being increasingly cited in UN fora. The authors of State-Sponsored Homophobia are Aengus Carroll (Ireland) and Lucas Paoli Itaborahy (Brazil).

 

Migration and responsibility for deaths in the Mediterranean

UNHCRThe tragic deaths of an estimated 700 people in the Mediterranean this week have again highlighted the limits of Europe’s responses to migration, including forced migration and human trafficking. It has taken the deaths, the avoidable deaths of hundreds of desperate people, including several hundred children, to jolt Europe into action. These tragic events were avoidable, and following the policy choices made by the European Union and its Member States in 2014, they were, sadly, all too predictable.

Following Italy’s decision to end the successful Mare Nostrum search and rescue mission, because of a lack of financial support, the EU launched the much more limited Triton mission, the priority of which was  ‘border management’.

The Mare Nostrum mission itself was launched by Italy in response to another tragic event, the drowning of 366 Eritrean and Somali men, women and children off the coast of Lampedusa. This event is now almost forgotten. At that time, the European Council met and expressed its deep sadness at this tragedy which, it said, “shocked all Europeans”. Sadly these words have become all too familiar. Commissioner Malström called for a more open approach to migration, to define a common European policy based on the rights of the migrants and of the asylum seekers and on solidarity to both the migrants and the Member States.

In 2011, we heard similar expressions of outrage following the ‘boat left-to-die’ tragedy, when more than 60 people lost their lives amid confusion and dispute as to who bore the legal responsibility to launch a rescue mission. Rapporteur for the Parliamentary Assembly of the Council of Europe (PACE), Dutch Parliamentarian Tineke Strik, concluded following her investigation that this was a tragedy that should not have happened – in the busy Canal of Sicily.

The Council of Europe Group of Experts on Action against Trafficking (GRETA), commended Italy’s Mare Nostrum operation, as an example of best practice in protecting victims of trafficking. In 2014, Mare Nostrum saved the lives of more than 150,000 people. When the mission was ended, GRETA wrote to Prime Minister Renzi expressing its concern at the ending of the Operation and calling for its reinstatement.

Mr Francios Crépeau, UN Special Rapporteur on Migration, writing in December 2014, expressed his fear that without Mare Nostrum, thousands of people would die in 2015. Shamefully, and tragically, his fears have been realised. In October 2014, the UK Govt. announced that it would not support search and rescue missions in the Mediterranean because they created, in their words, an unintended “pull factor”, encouraging more migrants to attempt the dangerous sea crossing. The failure to recognise the desperation and trauma endured by people who are smuggled or trafficked, many of them children, provoked outraged responses from civil society,  UN and European human rights bodies. In a strongly worded statement, Mr Crépeau said:

“To bank on the rise in the number of dead migrants to act as deterrence for future migrants and asylum seekers is appalling. It’s like saying, let them die because this is a good deterrence.”

The European Council has now agreed to triple the funding to be provided to Operation Triton, headed up by the EU agency, Frontex and the Italian authoritiesAn increase in the numbers of Syrian refugees to be resettled is also likely, though remains a matter of voluntary pledges. The recognition that the Dublin system is broken is welcome, if long overdue.

The proposal to seek a UN Security Council resolution to destroy the vessels of traffickers and smugglers reflects a continuing preoccupation with security. As yet, far too little is being done to respond to what is a humanitarian and human rights crisis.  Despite a Joint Statement from UN leaders, calling for expanded access to regular migration routes, this is not addressed, the focus remaining on return of irregular migrants (including through expedited removals), and externalisation of border controls.

UN Special Representative on Migration, Mr Peter Sutherland speaking on Morning Ireland commented that there is a lack of clarity on the responsibilities of states towards asylum seekers who arrive on their shores. The responsibilities, however, are clear, and have been reinforced by the European Court of Human Rights in its landmark 2012 judgment, Hirsi v Italywhich condemned any ‘push back’ of asylum seekers or migrants to countries where they would face torture, inhuman or degrading treatment.

Ireland has done far too little to assist in this crisis to date. The comittment to providing a fully crewed naval vessel is welcome, but it is not enough. We could and should play a much bigger role in resettlement of Syrian refugees, as called for by UNHCR for several years now. The avoidable deaths of children, women and man in coffin ships should be confined to the distant and sad past, not an all too familiar tragedy on the shores of the European Union.

Professor Siobhán Mullally, Director, Centre for Criminal Justice and Human Rights, University College Cork, Vice-President of the Council of Europe Group of Experts on Action Against Trafficking in Human Beings. 

 

Mental Health, Criminal Law and Risk of Harm

Dr Darius Whelan, Senior Lecturer, School of Law, U.C.C., and author of Mental Health Law: Civil and Criminal aspects (Roundhall: 2009). (This blog was originally posted on:  http://irishlawblog.blogspot.ie/2014/12/mental-health-criminal-law-and-risk-of.html )

CMH DublinCentral Mental Hospital, Dublin

The recent tragic case of stabbings in Cobh, Co. Cork, highlights the treatment of those with mental health issues by the criminal justice system. This is a complex area and further details may be found in some of the source materials referred to at the end of this blog post. The Criminal Law (Insanity) Act 2006 introduced major changes in Irish law concerning mental health  and criminal law.  For example, it changed the verdict in some of these cases from ‘guilty but insane’ to ‘not guilty by reason of insanity’.  In order for such a verdict to be reached, the Act requires the following:

(a) the accused person was suffering at the time from a mental disorder, and
(b) the mental disorder was such that the accused person ought not to be held responsible for the act alleged by reason of the fact that he or she—

(i) did not know the nature and quality of the act, or
(ii) did not know that what he or she was doing was wrong, or
(iii) was unable to refrain from committing the act,
the court or the jury, as the case may be, shall return a special verdict to the effect that    the accused person is not guilty by reason of insanity.

According to media reports in this case, it appears that such a verdict was returned regarding this individual (Mr Michael Greaney) in 2013. Under the 2006 Act, if such a verdict is returned, the judge does not automatically send the person for mental health treatment.  Instead, the person may be sent to the Central Mental Hospital (CMH) for assessment to see if the person requires treatment.  The emphasis switches at this stage from the person’s mental health on the day of the act to their health at the time of assessment.  A person’s mental health may fluctuate enormously from month to month (or even from day to day).

Depending on the assessment, the judge can then either order that the person be detained in the Central Mental Hospital or discharged.  In this case, it appears that the judge ordered that the person be discharged, on condition that he live away from the family home.  That condition was later lifted by the court.

If the judge ordered that the person be detained at the Central Mental Hospital, the question of the person’s release would be in the hands of the independent Mental Health (Criminal Law) Review Board.  This board has 4 members (listed here) and usually 3 members sit on a hearing to review a particular case. There are approximately 110 hearings per year.  Each case is reviewed every six months and the person will be represented by a solicitor.  A person could also be temporarily released by the CMH under s.14 of the 2006 Act (which does not require approval by the Review Board).

A decision made by a judge to release a person (or to put it another way, not to order that they be treated in the CMH) would be made based on psychiatric evidence of the risk they pose at the time of the assessment.  Assessment of risk is a difficult matter and it is impossible to predict risk of harm with high levels of accuracy.  As a society, it is important that we strike a fair balance between detaining those who may pose a risk to the community and recognising that a person with significant mental health issues may not have been criminally responsible for their actions. The current law attempts to strike that balance as best it can, with advice from medical experts.  This law is in fact of need of reform to strengthen the rights of the individuals concerned, e.g. there is a need for more frequent reviews of detention by the Review Board as the cases of those detained under the civil legislation – the Mental Health Act 2001 – are reviewed more frequently. The law also urgently needs to be changed to remove the “insanity” label from such individuals, a label which is entirely inappropriate and anachronistic.

Source Materials

Barry Roche – Irish Times coverage

Muiris Houston in Irish Times

Ralph Rigel – Irish Independent coverage 

Irish Examiner coverage

T.J. McIntyre, Sinead McMullan & Seán Ó Toghda, Criminal Law, 3rd ed. (Dublin: Round Hall, 2012)

Darius Whelan, Mental Health Law and Practice: Civil and Criminal Aspects (Dublin: Round Hall, 2009)

Liz Campbell, Shane Kilcommins & Catherine O’Sullivan, Criminal Law in Ireland: Cases and Commentary (Dublin: Clarus Press, 2010)

Darius Whelan, annotations of Criminal Law (Insanity) Act 2006 and 2010, available in Westlaw IE database

Citizens’ Information – Criminal Insanity and Mental Health

Website of Mental Health (Criminal Law) Review Board

Full text of Criminal Law Insanity (Act) 2006 as amended by Criminal Law (Insanity) Act 2010

Darius Whelan, slides on Criminal Law (Insanity) legislation

Mental Health Commission, Forensic Mental Health Services for Adults in Ireland, Position Paper, 2011

Mental Health Reform submission
Louise Kennefick blogpost on Human Rights in Ireland