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.”

 

 

New Publication on the Laws Governing Humanitarian Assistance

Dug Cubie, The International Legal Protection of Persons in Humanitarian Crises: Exploring the Acquis Humanitaire (Hart Publishing 2017)

Dr Dug Cubie’s monograph examining the international legal protection of persons in armed conflicts, natural and human-made disasters and forced displacement will be published by Hart Publishing (Oxford) next month. In the book, Dr Cubie argues that the humanitarian imperative to support those in need, irrespective of geographic, cultural or religious links, is both facilitated and overwhelmed by the extent of information now available about the multiple humanitarian crises which occur on a daily basis around the world. Yet behind the images of devastating floods and earthquakes, or massive forced displacements resulting from armed conflicts, is the all too real suffering faced by individuals and families. From the 2004 Indian Ocean Tsunami to the on-going conflict in Syria, recent years have seen an increasing debate regarding the international legal mechanisms to protect persons in such humanitarian crises.

The International Legal Protection of Persons in Humanitarian Crises argues that an acquis humanitaire, or law of humanitarian assistance, is identifiable through the interconnected web of existing and emerging international, regional and national laws, policies and practices for the protection of persons caught up in humanitarian crises. Indeed, the humanitarian imperative to alleviate suffering wherever it may be found permeates various branches of international law, and is reflected in the extensive humanitarian activities undertaken by States and other actors in times of armed conflict, population displacement and disaster.

The book commences by interrogating the conceptual framework regarding humanitarianism and the protection of persons in international law, before examining the normative content of the acquis humanitaire. Specific chapters cover the binding and non-binding provisions in international human rights law, the law of armed conflict, international criminal law, international disaster laws, and refugee and displaced persons laws. The book concludes by noting that while a general legal right to humanitarian assistance may be in the process of crystallisation, its current status is contested. Nevertheless, over the course of the book, Dr Cubie argues that by clarifying the conceptual framework and normative content of the acquis humanitaire, gaps and lacunae can be identified and the overall protection of persons strengthened.

Book Review: ‘East West Street: On the Origins of Genocide and Crimes against Humanity’ by Philippe Sands

We are delighted to welcome this guest book review from Samantha Williams, PhD candidate at the CCJHR and School of Law, UCC.

East West Street: On the Origins of Genocide and Crimes against Humanity by Philippe Sands, Weidenfeld, 437 pp, £20.00, May 2016, ISBN 978 1 4746 0190 0

Within an ever-expanding body of literature concerning World War II (WWII), Philippe Sands’ latest publication is a welcome and unexpected addition. Flipping the genre on its head, East West Street is a beautifully crafted text, focusing on a series of extraordinary historical coincidences.

Professor Philippe Sands QC, a practising barrister and Professor of International Law at University College London, is well known internationally as a leading scholar of genocide and crimes against humanity. As a barrister, working from Matrix Chambers, he was involved in the creation of the International Criminal Court, as well as a number of high-profile cases relating to accusations of genocide.

East West Street weaves together a collective narrative which is focused on the interrelated lives of four men, Hersch Lauterpacht, Raphael Lemkin, Hans Frank and Leon Bucholz, the latter, Sands’ maternal grandfather.  Part family biography, part history, part memoir and with a hearty dash of legal thriller – Sands serves as both tour guide and detective as he effortlessly weaves together several interconnected narratives using the town of Lviv in Ukraine as a starting point. Representing a departure from his previous catalogue of academic works, Sands draws the reader into a work which is best described in his own words as “a tale of four men, two legal norms, one trial and one city.”

Through the first part of the book, Sands leads us through the lives of these four men with a keen and eagle-like precision, poring over the “muck of evidence” with the same dogged perseverance that he does when filling in gaps in his own family history. Forever delving and going to great lengths to piece together the background and context within the interconnecting lives of these four men.

The role of the infamous Nazi lawyer Hans Frank, the man responsible for the decrees instructing the rounding up and mass murder of Polish-Jews, is juxtaposed with Raphael Lemkin and Hersch Lauterpacht, two forefathers of international law and creators of the terms “genocide” and “crimes against humanity”. Frank is also the man also responsible for the murder of the entire families of Lauterpacht, Lemkin and Buchholz – all of whom were wiped out in places now seared into the pages of history, Treblinka, Warsaw and Auschwitz. It is no surprise that Sands chose to bookend the text with the trial of the Nazi war criminals – a stark reminder that beyond their similar upbringing in the town of Lviv the narrative of the story is intrinsically interwoven with the harsh realities of the Holocaust.

It is arguably this perseverance and unwavering determination which is most engaging and thrilling for the reader, who at times may be mistaken for forgetting that the emerging story is not in fact a thrilling detective story, but instead an all-absorbing mini-biography of Lauterpacht, Lemkin and Buccholz. Such detailed and masterfully executed detective work is the cornerstone which supports the magic of Sands’ work. This perseverance and evidence-based writing is where Sands’ strength as both a practitioner and as a writer come to fruition.

The second half of the book moves away from its biographical starting point to compare and contrast the conceptions of crimes against humanity and genocide and the opinions of the men who drafted these. For Lauterpacht, it was individuals who ought to be the focus of such a new crime and thus, crimes against humanity was conceived. For Lemkin, the atrocities of Nazi Germany had been aimed at individuals as members of distinct ethnic groups, Roma, Jews, and minorities in general – so for him this new crime needed to lend a previously unseen level of protection to such groups, thus genocide was created.

The apparently conflicting basis for these two new crimes are examined in depth within the book as Sands highlights both the thought process and advocacy that both men had to go through to have their terms included in the Nuremberg judgments. For Lemkin, this was much more of an uphill struggle than for Lauterpacht – Sands credits this fight for legitimacy as attributable to both Lemkin’s rather alienating personality and the wariness of the prosecutors to adopt such a radical new take on a state’s responsibility. Genocide signaled a clear departure from the ideas of state sovereignty, that a state can do whatever it wishes to those under its sovereign power and within its borders. While such reasoning is artfully explored, as one would expect of a barrister and Professor of International Law, Sands’ preference towards Lauterpacht is markedly clear:

I was instinctively sympathetic towards Lauterpacht’s view, which was motivated by a desire to reinforce the protection of each individual, irrespective of which group he or she happened to belong to, to limit the potent force of tribalism, not reinforce it … It was a rational, enlightened view.

This clearly marked bias serves somewhat to detract from the larger analysis of these two great men and the norms which they constructed. In a recent event held at UCL, On Law, Life and Literature, Sands was asked about such leanings, and answered frankly, arguing that the crime of genocide is now part of a hierarchy of international law norms, and its usage is often inexplicably (and perhaps mistakenly) favoured over crimes against humanity. For Sands, as both a practitioner and as an academic, this amounts to a huge oversight – “a direct consequence of the idea of a group having been elevated higher than that of the individual.”

This elevation is ultimately troubling for Sands as it “downplays the significant role that individuals play within international law.” However, in doing so it is suggested here that Sands somewhat oversimplifies the key differences between Lauterpacht and Lemkin’s approach to this rebirth of international law. Sands perhaps undersells the significance of what Lemkin was envisioning in his attempts to bring focus back to a renaissance or reimagining of previous incarnations of minority rights safeguards, such as the Polish Minority Treaty, also known as the ‘Little Versailles Treaty.’

This bias is also clear further on in the narrative when Sands notes that Lemkin’s approach was always likely to fail to win over the imaginations of the Allied Prosecutors. Sands attributes this to Lemkin’s flaws as an individual and general ‘unlikeability’. However, it is suggested that this was more likely to be due to the focus of his newly conceived idea. Particularly, as genocide’s focus was to protect the rights of minority groups from a repeat of the horrific atrocities of Nazi Germany.

A quick overview of the historical the context of the time, an era of civil unrest under Jim Crowe in America and the rise of unrest in the Colonies of the British Empire, highlights the dangerous that the idea of genocide with its protections afforded specifically to groups, could have caused. Specifically, as historically both the US and most notably the UK had treated minority groups in a way that the newly emerging crime of genocide could be applied to. Such opposition suggests the Lemkin’s idea might have been getting at something important and was ultimately widely applicable to the acts of the Allied Powers both prior to and post-WWII. Sands’ diminishing of historical context here suggests a slight oversight of the intrinsically institutionalised nature of ethnic and racial prejudice in most European States at that time.

It is also worth noting that weaving a personal, biographical story with an exploration of important legal norms and the figures behind these placed certain limitations upon the book and its relevance. Furthermore, Sands’ preferential treatment of Lauterpacht over the “less likeable” and “wayward,” Lemkin leads the book to descend dangerously close to hero worship (a point noted by Mark Mazower in his review of East West Street). However, such slight oversights ultimately do not detract significantly from what is a well-written and immaculately researched work.

In conclusion, East West Street is an impeccably detailed read, set within the historical context in a way which elevates it from other works focussed on the intricacies of international law and WWII literature. Part historical detective story, part family history, part legal thriller, Sands guides with a gentle hand and highly descriptive writing between past and present – as the stories of the men unfold in parallel. Unravelling this personal story, yet simultaneously weaving this into the lives of Lemkin and Lauterpacht – Sands keeps the reader engrossed throughout – even when discussing in great analytical detail certain elements of the Nuremberg Trials. For this, East West Street undoubtedly deserves the acclaim and literary accolades it has received since its publication in the summer of 2016. Yet one would expect nothing less from Sands.

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.

 

Forensics: ID to Intelligence

We are delighted to welcome this guest post from Eimear Moroney, IRC Postgraduate Scholar and PhD candidate at the CCJHR and School of Law, UCC

From Sherlock Holmes at the end of the 19th century, to the emergence in the early 2000s of CSI and its televisual progeny, to the current ‘true crime’ serialisation phenomenon, public interest in forensics has long been piqued. In practice, cold cases are being re-opened and long-condemned individuals have been exonerated on foot of forensic (especially DNA) evidence, owing to to: (a) heightened modes of scientific analysis; and (b) the likes of the Innocence Network, a global association of not-for-profit organisations, which strive to prove the innocence of the wrongly convicted (see further: Irish Innocence Project). Following the activation of Ireland’s DNA Database System in November 2015, the nexus between forensic evidence, guilt and innocence has never been more topical.

The forensic science of popular cognisance developed, in the aftermath of the industrial revolution, out of concern to identify criminals for the purpose of meting out appropriate punishment: differential punishment was accorded to first time offenders and recidivists. This focus on repeat offenders manifested in Ireland and England through the enactment of the Habitual Criminals Act 1869 and the Prevention of Crimes Act 1871, the latter of which prescribed the maintenance of a Habitual Crime Register, entailing the photographing and measuring of prisoners. This anthropometric system, which measured prisoners’ heads and limbs, subsequently incorporated fingerprint marks. Less cumbersome and ultimately more accurate, fingerprinting supplanted the metric system.

As forensic techniques developed, policing agencies realised the Locardian principle “every contact leaves a trace” could play a role in criminal investigations. This role was traditionally conceived as a corroborative one within a case construction model of policing: forensic evidence was used to build up a case against an identified suspect for prosecutorial purposes.

However, a move away from a reductive model of reactive policing towards proactive, intelligence-led policing is increasingly discernible, both internationally and more locally: see for example, An Garda Síochána Policing Plans 2014 and 2015. Concurrently, Williams has suggested that the true utility of forensic science lies in intelligence-led policing, “… in other words as information to further direct ongoing criminal investigations and disruptions, rather than as props in the dramaturgy of a criminal trial.”

In Ireland, a 2007 report entitled Review of Resource Needs in the Forensic Science Laboratory and the Wider Scientific Context in Ireland  averred that “[t]he work of a forensic laboratory does not only concern evidence for the courts but should also give impulses to the investigation. The findings of the laboratory can often give valuable information that can assist the investigation or can be used as intelligence.” This theme has grown roots in the context of Ireland’s long-gestated DNA database,  from the Law Reform Commission, who in 2005, described the proposed database as an “intelligence tool,” to the Minister for Justice and Equality, who in November 2015 described the database as “a high quality intelligence tool” and “a hugely significant development in assisting the Garda Síochána in the investigation of crime.”

The utility of any database is necessarily commensurate with the quantity of samples contained therein. Accordingly, the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 sanctions the sampling of detained suspects, so as to generate a profile for the reference index of the DNA database system, under the authorisation of a member of An Garda Síochána not below the rank of Sergeant. In turn, this profile may be compared with profiles held in the crime scene index and the missing and unknown persons index. The sole fact of detention for a “relevant offence” is sufficient to ground the taking of a sample for this purpose. However, in order for this profile to be used for evidential purposes, the authorisation of a member of An Garda Síochána not below the rank of Inspector is required. To authorise same, the member must have reasonable grounds for suspecting the involvement of the detainee in the commission of the offence for which they are detained, and furthermore, that the sample will tend to confirm or disprove the involvement of the detainee in the offence.

In acknowledging that information generated by forensic science can form part of the detection process notwithstanding that such data is not (or possibly was never intended to be) admitted into evidence, the 2014 Act arguably places intelligence-led policing on a statutory footing. It follows whilst forensic science was initially used to compile and maintain a record of criminal identity, this very record-keeping function has had a renaissance in the Digital Age.

However, it cannot be forgotten that forensically generated information is nonetheless “potential evidence.”  To quote Ashworth and Redmayne, “[t]he possible end result of the process is adjudicative: a trial. Whether a trial will result will depend on many other factors. …  But what matters is the potential of the probability. Criminal procedure is a process that may lead to trial.”

Notwithstanding that a minuscule fraction of offences proceeds to a contested trial, the criminal justice continuum, and any analysis thereof, must be ultimately trial-oriented. Whether providing the impetus to an investigation, or eliminating potential suspects, it is clear that forensic science can impact the course of a criminal case prior to trial. After all, to advance along the continuum from criminal investigation to trial entails traversing a number of preliminary stages: a negative determination with respect to the decision to prefer charges results in exodus from the continuum prior to trial. Hence, the very “evidential potential” attaching to forensic data, from fingerprints to DNA analyses, may impact, or indeed determine, decisions throughout criminal process, including those pre-trial decisions relating to arrest, prosecution and plea.

Having regard to the potential for forensic science to play a determinative role in the pre-trial process, there is a heightened need to ensure the reliability of forensic science throughout the low-visibility portions of the continuum. When tendered as evidence at trial, forensic data is, in theory at least, subjected to the checks and balances of the adversarial process: it must first be admitted into evidence before being subjected to robust cross-examination. However, there is no equivalent oversight of forensic evidence pre-trial.

This lack of scrutiny is all the more disquieting given that, internationally, forensic science has received bad press in recent years: for example, see Broeders (reference below); here; and here. However, caution must be exercised before extrapolating from other jurisdictions.

Two agencies conduct forensic analysis for the State in Ireland, Forensic Science Ireland (FSI) and the Garda Technical Bureau (GTB), both of which sought and achieved accreditation to International Organisation for Standardisation (ISO) 17025, the international laboratory standard for calibration and testing (FSI in 2002 and more recently, the GTB in 2016). Maintaining this status requires that the laboratories must pass annual, independent inspections, whilst all routinely used methods must be validated and proficiency trials must be conducted. The efforts of FSI and the GTB in this respect must be recognised not only as positive developments but also as necessary advancements, having regard to the advent of forensic databases and the newfound emphasis on proactive, intelligence-led policing.

 

Non-hyperlinked References

Ashworth, A. & Redmayne, M., The Criminal Process, 3rd ed. (Oxford: OUP, 2005)

Barnes, J.G., “History” in National Institute of Justice, The Fingerprint Sourcebook (Washington DC: US Department of Justice; Office of Justice Programs; National Institute of Justice, 2012)

Broeders, A.P.A, “Of earprints, fingerprints, scent dogs, cot deaths and cognitive contamination-a brief look at the present state of play in the forensic arena” (2006) 159 Forensic Science International 148

Cole, S.A., “Fingerprint Identification and the Criminal Justice System: Historical Lessons for the DNA Debate” in D. Lazer, ed. DNA and the Criminal Justice System: The Technology of Justice (MIT Press, 2004)

Cole, S.A., Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge: Harvard University Press, 2009)

Finn, J., “Photographing Fingerprints: Data Collection and State Surveillance” (2005) 3(1) Surveillance and Society 21

Littlefield, M.M., “Historicizing CSI  and its Effect(s): The Real and Representational in American Scientific Detective Fiction and Print News Media, 1902-1935 (2011) 7 Crime Media Culture 133

McCartney, C., Forensic Identification and Criminal Justice: Forensic science, justice and risk (Devon: Willan, 2006)

Redmayne, M., Expert Evidence and Criminal Justice (Oxford: OUP, 2001)

Roberts, P., “Science in the Criminal Process” (1994) 14(4) Oxford Journal of Legal Studies 469

Schweitzer, N.J. & Saks M.J., “The CSI Effect: Popular fiction about forensic science affects the public’s expectations about real forensic science” (2007) 47 Jurimetrics 357

Thornton, J.I., “Uses and Abuses of Forensic Science” (1983) 69 ABA 289

Twining, W., Rethinking Evidence: Exploratory Essays, 2nd ed. (Cambridge, CUP, 2006)

Williams, R., “Policing and Forensic Science” in T. Newburn, Handbook of Policing, 2nd ed. (Devon: Willan, 2008)

CONVERGING LAW, FOUR POINTS OF VULNERABILITY AND THE SUPPOSED INVIOLABLE SPACES OF LEARNING

We are delighted to welcome this guest post from Sarah M. Field. Sarah has a blend of academic and applied experience supporting the fulfillment of international human rights law through international research and legal advocacy projects. She is presently a National Project Coordinator of the cross-European GENOVATE Project at University College Cork, Ireland and blogs occasionally at rights-streams.com. This is the first of a four part series; the second part ‘Converging law, equivocation and delimits on the supposed inviolability of spaces of learning’ is accessible here; the others are forthcoming and will be cross-posted here

CCJHR blog image

Image courtesy of Marcus Bleasdale

 

Chibok. Rafah. Peshawar. Garassa. Donetsk. Aleppo. Sana’a.

Disparate places, among others, bound by attacks—acts of violence—on the supposed inviolable spaces of lower and higher learning, schools and universities, among others. The attacks and their impact—the hurt and harm—on children and adults’ embodied selves resonate far beyond their geographical axis. Or, to invoke the Martens Clause, they may be supposed as violating ‘[…] the laws of humanity and the dictates of public conscience.’ And, in doing so, they undergird the continuing juristic shift of the past century towards the international legal protection of our ‘embodied vulnerability’ to hurt and harm of all forms.* Like other serious violations of international law, then, the attacks transcend the—sometime—distance between us.  But is the clarity of our collective sense of justice reflected in the law?

To an extent, the answer lies in the space: the spark to condemnation relates less to the violated spaces of learning and more to violated bodies within—the incursions of bodily and inner inviolability or violations of the rights to life, bodily integrity and security of the person, among others.  Thus viewed, the spaces of learning are less the object and more the holders of the object of protection: they are holders for embodied subjects of rights, principally learners, and their multidimensional right to education. There lies one source of international legal protection: international human rights law. Or viewed another way, there is a duo dimensional obligation to protect the embodied rights holder within the space from acts of violence and the space as a safe space of learning. And these continue within the converging contexts of emergencies, threats to international and peace and security and non/international armed conflicts. Indeed the latter triggers a second source: international humanitarian law. There is thus an international humanitarian obligation to respect and ensure respect for the principles of distinction between civilians and combatants and civilian objects and military objectives—or in other words to refrain from attacking learning spaces as civilian objects, and embodied persons in relation to the space, as civilians (persons not directly participating in hostilities). Indeed transgressions of these humanitarian rules may, infamously, be subject to domestic or international criminal investigations as war crimes.

The legal protection, then, may be viewed as doubling itself: the human rights obligation to protect the space from acts of violence and humanitarian obligation to refrain from attacking the space are complementary and mutually reinforcing. Considered in this way, there is legal and substantive convergence: the legal obligations to protect the space converge legally through the concurrent application of the two bodies of law, and substantively through the protection of ‘embodied vulnerability’ in relation to space within the context of non/international armed conflict. Of course probe more deeply and the convergence is partial. Though bound by embodiment, they are positioned on oppositional axes: in one body of law the embodied persons are subjects of rights; in the other they are more objects of protection—humanitarian rules limiting (the vulnerability creating effects of) violence in armed conflict. The framing of the respective obligations, therefore, diverge in form, content and scope. Held within the principle of distinction, for example, is international legal protection—and also its limits. Therein lies divergence in substantive protection. Learning spaces may lose their protection from attack; they may be transformed from a civilian object to a military objective including both a military contribution and advantage (whether by nature, location, purpose or use) and consequently be lawfully attacked.

Still this difference in scope may be viewed as a necessary accommodation to the extraordinary context of non/international armed conflict. Prima facie, if learning spaces are former learning spaces, there is minimal impact on learners and their teachers, among others, embodied selves. However viewed through a vulnerability lens* this potentiality may create, at least, four points of potential extraordinary embodied vulnerability to hurt and harm: (i) misinformed attacks on learning spaces of which remain civilian objects/retain their civilian character; (ii) proximate extraordinary embodied vulnerability in attack due to the likely close proximity of other aspects of civilian life (for example, learners’ homes); (iii) partial transformation of the space from a civilian object to a military objective by armed forces/groups; and (iv) broader multidimensional hurt and harm (or violations of the right to education and ipso facto violations of the rights in and through education) as a consequence of closure of learning spaces due to the potentiality of (i)-(iii).

Yet the narrative of the law, itself, is reflective of these four points of vulnerability in so far as it includes rules to limit the vulnerability creating effects of the principle of distinction. Of course in treaty law the determinacy differs between non and international armed conflict. However, three of the four points of vulnerability have determinate legal protection within customary law (see indicative overview), for example, the potentiality of misinformed attacks is limited by the obligation to do everything feasible to verify that targets are military objectives, among other rules. The fourth is more equivocal: there is no express obligation, for example, to respect the civilian character of learning spaces. Still it may be inferred from existing treaty and customary law: basic rules according protection to the civilian population and civilian objects, more specific rules informing their content and others. To these rules, there is a vital dignifying safeguard: the concurrent application of international human rights law generally—and the human right obligations to protect embodied rights holders in relation to the space specifically. As complementary international legal obligations, they continue at points of convergence and divergence in substantive protection, reinforcing the vulnerability limiting effects of applicable humanitarian rules (express or implied).

And, in doing so, they may have protective effects: law determining effects—or in others words, guide and inform the content of the humanitarian rules. Thus where the two bodies of law converge substantively, the applicable humanitarian rule may be determined with regard to (or interpreted in light of) the more specific human rights obligations, most particularly where it is less determinate or more equivocal than its human rights complement. And even where the protection diverges substantively (i.e. when the human rights obligation is determined by more specific humanitarian rules) the human rights obligation, as  a complementary international legal obligation, may be viewed as undergirding those rules, complementing and reinforcing their vulnerability limiting effects. Overall it creates a meta-juridical imperative to protect the inviolability of spaces of learning from attack and as spaces of learning. And this may have compliance conducing effects: domestic legal embodiment of the human rights obligations within the context of non/international armed conflict including knowledge and practice of law may (over time) effect practice of complementary humanitarian rules.

Considered in this way, rights-infused humanitarian law may be viewed as more reflective of our collective sense of justice. Yet the law is less converged and more converging. The protective effects are undercut by the undercurrent of oppositional legal argumentation vis-a-vis the concurrent application of the two bodies of law. And also by legal equivocation about its legal effects—specifically the content and scope of the multi-dimensional right to education. There remains a dual imperative to refute the former and contribute determinacy to the latter, most particularly at the point of divergence.

*On vulnerability and the law, see scholarship of Martha Albertson Fineman and Anna Grear, among others.

Migrant domestic and care workers in Ireland

We are delighted to welcome this post from Dr. Fulvia Staiano, Irish Research Council Post-doctoral Researcher based at the CCJHR, UCC.

 

In September 2015, the Migrant Rights Centre Ireland (MRCI) published a report entitled Migrant Workers in the Home Care Sector: Preparing for the Elder Boom in Ireland. The report describes the current state of the home care sector in Ireland and predicts an impending “elder boom” which will increase the demand for migrant domestic workers in the care and domestic work sector. Although Ireland has the fastest-ageing population in Europe, recent cuts to the Health Service Executive home care supports made this option expensive, fostering an informal care sector increasingly filled by migrant workers.

Despite this situation, Irish immigration law has become increasingly restrictive. From 2009, the issue of residence permits for the purpose of being employed as a domestic worker or carer in Ireland started to be increasingly limited. This process ultimately resulted in the inclusion of domestic workers among ineligible categories by the 2015 Employment Permits Regulations.

Predictably, the current impossibility to enter Ireland with an employment permit for the purpose of carrying out domestic or care work has not curbed the demand for workers in this sector. In this respect, the Report highlights how “an inevitable outcome of the absence of government labour migration policy in this area is a home care sector populated by informal and irregular workers – students and undocumented migrants”. At the same time, existing regulations on health services for the elderly (such as the Health Act 2007 or the 2012 National Standards for Safer Better Healthcare) do not apply to home care, which thus remains a widely unregulated sector in Ireland.

The retreat of law from the sector of domestic and care work is particularly worrisome for migrant workers. Demanding working hours, low pay, and difficult working conditions are often experienced by all workers in this sector regardless of nationality. Migrant care workers, however, run a particularly high risk of suffering from exploitation, abuse and discrimination. This was highlighted by both the MRCI and the Fundamental Rights Agency, which lists “activities of households as employers” as the fourth sector most at risk of exploitation in Europe. The same report places this sector at the top of the list for Ireland.

The Irish case is not at all unique in Europe. The exclusion of domestic work from general labour protections and the imposition of links with employers within labour migration law are recurring issues among EU Member States. For example in the UK section 57 of the National Minimum Wage Regulations 2015 allows employers to pay less than minimum wage to domestic workers who are “not a member of that family, but [are] treated as such.”  In Spain the Preamble of Real Decreto 1620/2011 states that the specific features of domestic work “justify the need for a different regulation than that of the common labour relationship”.

The legally-imposed dependence on employers in domestic immigration law is visible in both first-entry visa schemes and regularisation procedures. The UK Overseas Domestic Workers visa scheme, for instance, was reformed in 2012 so as to remove the possibility for visa holders of settling in the country by extending their stay and sponsoring family reunification. It also prevents migrants holding such visas to change employer. Despite the Government’s statement whereby such limitations offered “the biggest protection” against employers’ abuse, it appears that the prohibition on changing employer de facto presents domestic workers with the impossible choice of either enduring abusive and exploitative situations or jeopardising their residence status and risking expulsion. A similarly dangerous link between the regularity of domestic workers’ residence and continuous work for a specific employer was established in the past by an Italian regularisation procedure for domestic workers employed in the informal sector. In particular, law 102/2009 granted control to employers over the commencement and the continuation of the regularisation procedure, exposing domestic workers to blackmail by employers and discouraging them from reporting violence, abuse, sexual harassment or labour exploitation.

Against this background, it is worth noting that the European Court of Human Rights’ jurisprudence concerning the exploitation of domestic work has so far exclusively concerned extreme cases such as slavery and domestic servitude. Since its landmark judgment of Siliadin v. France, the ECtHR has identified positive state obligations under Article 4 of the ECHR which relate to the criminalisation of slavery, servitude and forced labour as well as their effective enforcement.

This commendable incursion of human rights law in the private realm of the household can be seen as a positive first step towards the protection of migrant domestic workers’ rights under the ECHR. However, this judgment and the following case law (C.N. v. the United Kingdom, C.N. and V. v. France and Kawogo v. the United Kingdom) reveal an exclusive focus on criminal law provisions, disregarding the broader issue of normative triggers to labour exploitation within other areas of domestic law. In Rantsev v. Cyprus and Russia, where the ECtHR found Cyprus in breach of Article 4 of the ECHR for putting in place a so-called “artiste visa” regime which, due to the strong control granted to employers over the employees’ migration status as well as living and working conditions, exposed foreign women to trafficking for the purpose of sexual exploitation.

The ECtHR case law also shows a clear focus on civil rights violations, without offering cues as to state obligations in relation to socio-economic rights. However, such a perspective is crucial for migrant domestic workers, because it relates to the more common forms of “everyday” exploitation experienced as a consequence of the described lack of legal protections in both labour and immigration law. Since the judgment in Airey v. Ireland the ECtHR has shown openness to examine claims related to socio-economic rights, including to a certain extent labour rights, but unfortunately to date it is not possible to identify meaningful examples of cross-fertilisation in respect to migrant workers’ claims in this field. This is particularly regretful in light of the low ratification rate among EU Member States of the 2011 ILO Domestic Workers Convention – which has yet to be acknowledged by the ECtHR.

In the light of the potential 5.5 million jobs in the Personal and Household Services Sectors predicted by the European Commission – a significant portion of which will be fulfilled by migrant women – the issue of the protection of domestic and care workers’ socio-economic rights is only destined to acquire relevance. In this respect, bridging the gap between the current focus of European human rights law on domestic servitude and migrant domestic workers’ need for legal protections in relation to “everyday” exploitation appears to be crucial.

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.