Monthly Archives: November 2007

Bellinger on Geneva Conventions and Terrorism

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US State Department Legal Advisor John Bellinger has called on the international community to ‘clarify’ the contents and scope of application of the Geneva Conventions (International Herald Tribune). In an address to reporters at the ICRC annual meeting, Bellinger claimed that the Conventions apply to conflicts between states and thus do not offer guidance as to how long one can hold people in conflicts with non-state actors. The view does seem somewhat at odds with the position of the US Supreme Court expressed in the Hamdan decision that Common Article 3 of the Conventions – applying to ‘non-international armed conflicts’ – could apply to conflicts between states and non-state actors (although it’s not necessarily the case that this is correct or that the court was sufficiently rigorous in its application of IHL: see Fionnuala Ni Aolain’s insightful critique in the Minnesota Law Review).

More interesting, however, is Bellinger’s contention that “[t]he United States is firmly committed to the law that applies. We’re also committed to working with other countries around the world to develop new legal norms in cases where existing law does not give one the answers. But what we do think is problematic is to simply suggest that the Geneva Conventions provide all of the answers in fighting international terrorism, and that countries simply need to follow the Geneva Conventions and that is the end of the matter”. This appears to suggest that there is no law to govern detention of suspected terrorists, when in fact there clearly is: international human rights law.

Nobody suggests that the application of the Geneva Conventions is the end of the matter. The ICJ (in the Advisory Opinion on Nuclear Weapons) and many commentators have noted that international human rights law continues to apply in parallel with and through the prism of international humanitarian law. The United States, however, predominantly takes the position that IHRL does not apply in times of IHL-application. The root of the problem arguably lies not in deficiencies within the international legal code, but rather in the restricted view of applicable law on the part of the US authorities.

Indirect Discrimination in Denominational Schools’ Admission Policies

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The Jewish Free School (JFS) is considered the best Jewish school in the United Kingdom. As a result the school is over-subscribed. As in Ireland (under s. 7(3)(c) of the Equal Status Act 2000), denominational schools in the UK are entitled to favour children of the same denomination as the school in enrollment procedures. In the case of the JFS one of the selection criteria was to “be recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth” (JFS Admission Policy). It appears that the Chief Rabbi was, in the case of admissions to JFS, using a sub-rule for admissions that considered whether a child was ethnically Jewish (i.e. having at least one Jewish parent or grandparent), with ethnic Jews being preferred in the case of over subscription to the school.

Yesterday the Chief Schools Adjudicator ruled that the exclusion of a child whose mother (who incidentally is head of English at the school) was a convert to Judaism and not, therefore, ethnically Jewish, was “indirect” discrimination. Importantly, however, the CSA also held that there was no race-relations implication in preferring Jewish students over non-Jewish students, finding instead that this was a matter of religion.

The question of ‘indirect discrimination’ in school admission policies may become germane in Ireland as schools (particularly at primary level) continue to be oversubscribed. Can a Catholic school, for example, not only prefer Catholic children to non-Catholic children in its admission policies but then prefer some Catholic children to others if the number of applicants still out-strips the number of available places? Would it be permissible to narrow down the field of applicants based on the frequency of a child’s attendance at church services? Or based on whether their parents went to Catholic schools? Or based on whether their parents are Catholic? It is clear that the JFS admission criteria were not attempts to assess levels of genuineness of religious conviction or levels of religious conviction; Judaism is an ethnicity as well as a religion, the same is possibly not true of Catholicism (although see O’Toole, “Ethnic Catholicism in Boston” (1992) New England Quarterly 117 for an alternative view). However questions of indirect discrimination may begin to arise in Ireland, and the JFS case suggests that s. 7(3)(c) of the Equal Status Act may not allow for such admission policies on the part of denominational schools.

This story is also reported in The Guardian and Ha’aretz.

Lecture by General (ret) John de Chastelain

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On Monday December 3rd General (ret) John de Chastelain will present a lecture to the CCJHR entitled ‘Decommissioning and the Northern Ireland Peace Process, 1994 – 2007’. John de Chastelain was a member of the ‘Mitchell Commission’ and is now the head of the Independent International Commission on Decomissioning.

The lecture will take place in room G04 of the Brookfield Health Sciences Building. There will be tea and coffee at 4.45 with the lecture commencing at 5pm. The lecture will be followed by a Question and Answer session.

Any queries can be directed to f.delondras[at]ucc.ie

Models of Guardianship: Final Agenda

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Models of Guardianship: Protecting Migrant Children

Jurys Cork Hotel, Cork, 28th November 2007

9.30-10.15 Registration / Coffee and Tea

10.15-11.00 Welcome – Dr. Siobhan Mullally, Chairperson, Irish Refugee Council; Co-Director, Centre for Criminal Justice and Human Rights, Faculty of Law, University College Cork

Keynote Speech: Mr Thomas Hammarberg
Commissioner for Human Rights of the Council of Europe

11.00-11.15 Coffee and Tea Break

11.15-13.00 Expert Panel: International Standards and Experience
4 expert presentations followed by discussion

Chair: Dr. Ursula Kilkelly, Senior Lecturer, UCC

Panel: Céline Dermine, Legal Expert, Belgium

Lea Nykänen, Guardian, Finland
Nadine Finch, Barrister, Garden Court Chambers, United Kingdom
Laura Brownless, Policy Officer – Protection, England Programme, Save the Children UK

13.00-14.00 Lunch

14.00-15.15 Expert Panel: Examining Current Irish Practice
3 expert presentations followed by discussion

Chair: Jyothi Kanics, Separated Children’s Officer, Irish Refugee Council

Panel: Freda McKittrick, Head of Service, Beacon Guardian ad Litem Service, Barnardos
Anke Boehm, Managing Solicitor, Refugee Legal Service
David Costello, Refugee Applications Commissioner

15.15-15.45 Coffee and Tea Break

15.45-17.00 Expert Panel: Recommendations for Improving Irish Practice
3 expert presentations followed by discussion

Chair: Sophie Magennis
Head of Policy and Research, Office of the Ombudsman for Children

Panel: Dilly O’Brien, Office of the Minister for Children
Manuel Jordão, UNHCR Representative in Ireland
Geoffrey Shannon, Special Rapporteur for Child Protection

17.00-17.15 Concluding remarks, Robin Hanan, CEO, Irish Refugee Council

Universal Children’s Day

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This blog post was contributed by PhD Candidate, Liam Thornton

November 20th marked the occasion of Universal Children’s Day.

Some 3,000 children in Ireland are being deprived of basic necessities such as over the counter medicines because their parents cannot afford them as they do not qualify for Child Benefit under the Habitual Residence Condition, a group of organisations working for children’s rights in Ireland have stated.

FLAC (Free Legal Advice Centres), the Children’s Rights Alliance, the Vincentian Refugee Centre, Barnardos, the Migrant Rights Centre of Ireland (MRCI), OPEN and the Immigrant Council of Ireland (ICI) on the occasion of Universal Children’s Day, are highlighting the fact that children are going without basic necessities like medicine, food and adequate clothing as a result of the imposition of the Habitual Residence Condition by the Department of Family and Social Affairs

“The majority are the children of asylum seekers or others seeking protection or humanitarian leave to remain in Ireland, many of whom have to wait years for a decision. Child Benefit has been always seen by the State as a plank to remove children from poverty” according to Noeline Blackwell, Director General of FLAC. “The refusal of Child Benefit means that the State is turning its back on its own policies and commitments, including its commitments under Social Partnership and the UN Convention on the Rights of the Child.”

According to the group of organisations, the number of children affected is relatively small and is estimated by FLAC through its research at less than 3,000 children. According to Sr. Breege Keenan of the Vincentian Refugee Centre, the effects of denying Child Benefit to these children are very visible and immediate. “We see children all the time whose parents cannot give them the most basic requirements. These include suitable food and dietary supplements. Over the counter medicines like Calpol and even simple playthings are often way beyond the means of these parents”

“The difficulty is that migration policy overrides everything else, including children’s rights and poverty reduction and in effect, children have little or no influence at the Cabinet table or in the wider political system” according to Ms. Blackwell. According to the group the cost of paying child benefit to all the children affected would be less than €6 million per annum. The group statement concluded that “In today’s Ireland it is shameful that children are being driven into such poverty by a migration led policy which takes no account of the rights and needs of children.”

For more information on this campaign, people may contact Noeline Blackwell, Director General of FLAC, www.flac.ie

Models of Guardianship: Protecting Migrant Children

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On 28th November the Irish Refugee Council (whose director, Dr Siobhan Mullally, is also co-director of the CCJHR) will hold a one-day seminar in Cork entitled Models of Guardianship: Protecting Migrant Children. The objectives of the seminar are to:

  • Raise awareness about relevant national and international obligations regarding the role and responsibilities of guardians for separated children
  • Highlight research and showcase good practice from other countries
  • Compare Irish practice with international standards and good practice models
  • Solicit recommendations for improving Irish practice in the future
Speakers will include Thomas Hammarberg, COE Commissioner for Human Rights, Céline Dermine (Belgian Legal Expert), Manuel Jordão UNHCR Representative in Ireland, Freda McKittrick , Beacon Guardian ad Litem Service, Barnardos; Lea Nykänen, Finnish Guardian; Nadine Finch Barrister at Law, Garden Court Chambers, U.K.; Save the Children U.K.; Geoffrey Shannon Special Rapporteur for Child Protection; and Dilly O’Brien of the Office of the Minister for Children.

Completed registration forms should be returned asap to emilia[at]irishrefugeecouncil.ie or faxed to 01 873 00 88.

Full details – including how to book – are available here.

ECtHR Decision on Roma Education Rights in Czech Republic

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The European Court of Human Rights last Tuesday handed down its judgment in DH & Others v Czech Republic concerning the segregated education of Roma children in the Czech Republic. The Court found that the education offered to the Roma children was substandard and was “not attended by safeguards [citations omitted] that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State took into account their special needs as members of a disadvantaged class”. The segregation of the Roma children and their provision with lower quality education constituted a discriminatory violation of their right to education (Article 14 & Article 2, Protocol One) and the respondent state was ordered to pay 4,000 Euro to each child. Interestingly, the judgment makes extensive reference to EC law, international human rights law, non-binding reports and opinions on Roma education in the respondent state, as well as the Court’s own jurisprudence.

First ICC Trial to Begin in March 2008

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The International Criminal Court has decided that Congolese militia leader Thomas Lubanga will be the first person to be tried before the Court (ICC decision). All evidence is to be turned over to his defence by December 14th of this year. Lubanga is charged with recruiting child soldiers in the Ituri district of the Congo. The trial is scheduled to begin on March 31, 2008.

The Ituri district saw some of the most intense violence in the Congo and the background is described in this HRW Report:

The war in Ituri is a complex web of local, national, and regional conflicts that developed after a local dispute between Hema and Lendu was exacerbated by Ugandan actors and aggravated by the broader international war in the DRC. National rebel groups such as the Congolese Liberation Movement (Mouvement pour la Libération du Congo, MLC), the Congolese Rally for Democracy-Liberation Movement (Rassemblement Congolais pour la Démocratie-Mouvement de Libération, RCD-ML) and the Congolese Rally for Democracy-Goma (Rassemblement Congolais pour la Démocratie-Goma, RCD-Goma) have supported local militia in their conflicts as a way to expand their own base of power in the DRC transitional government or perhaps even to derail negotiations. These national groups, as well as local ethnic groups in Ituri, have been and, in some cases, still are supported by the Ugandan, Rwandan and DRC governments. Ituri is now the battleground for the war between the governments of Uganda, Rwanda and the DRC which have provided political and military support to local armed groups despite abundant evidence of their widespread violations of international humanitarian law.

Autumn Publications from CCJHR Members

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

PhD Candidate Claire Murray published “Safeguarding the Right to Liberty of Incapable Compliant Patients with a Mental Disorder in Ireland” in the Dublin University Law Journal in which she considers the current legislative provisions concerning the rights of incapable adults in Irish law and argues that they leave incapable adults susceptible to deprivations of liberty. The article then considers the adequacy of constitutional habeas corpus petitions and Article 5, ECHR litigation to vindicate the right to liberty of these incapable adults.

PhD candidate Olufemi Amao also published an article in the DULJ. His article, entitled “Reconstructing the Role of the Corporation: Multinational Corporations as Public Actors in Nigeria”, considers the role of corporate governance rules in the protection of various stakeholders affected by the operations of multinational corporations operating in Nigeria. Arguing for a paradigm shift in corporate governance in Nigeria, Amao’s article posits generalisable arguments about corporate governance that, in his words, “advocates harnessing the potentials of the private structure for the public interest”.

Dr. Catherine O’Sullivan has an article in the current issue of the Irish Criminal Law Journal entitled “The Burglar and the Burglarised: Self-Defence, Home-Defence and Barnes” (p. 10). The article concerns the recent Court of Criminal Appeal decision in DPP v Barnes ([2006] IECCA 165) in which a burglar who had caused the death of the homeowner attempted to appeal a murder conviction on the basis of self defence. O’Sullivan contextualises the case in the light of DPP v Nally ([2006] IECCA 168) and the LRC proposals on self-defence (Consultation Paper on Legitimate Defence).

Dr. Ursula Kilkelly has published “Complicated Childhood: the rights of children in committed relationships” in Binchy & Doyle (Eds) Committed Relationships and the Law (Four Courts Press; Purchase).

Dr. Shane Kilcommins and Dr. Barry Vaughan (IPA) published “The Europeanization of Human Rights: An Obstacle to Authoritarian Policing in Ireland” in the European Journal of Criminology. The article explores the extent to which European human rights standards (mostly the ECHR) “temper[..] the shift towards a repressive model of criminal justice by introducing greater regulation and oversight of policing” in Ireland.

Fiona de Londras has published “The Right to Challenge the Lawfulness of Detention: An International Perspective on U.S. Detention of Suspected-Terrorists” in the Journal of Conflict and Security Law (currently available by advance access) in which she considers the role of detention practices of the US in the ‘War on Terrorism’ and advocates the vindication of suspected terrorists’ right to challenge the lawfulness of their detention under international human rights law. She also published a comprehensive text book on The Principles of Irish Property Law (Clarus Press; Purchase).

Dr. Mary Donnelly and Fidelma White have published “Webtraders’ obligations under the Distance Selling Regulations 2001—From legal standards to best practice” in The Commercial Law Practitioner (p. 172) in which they consider webtraders’ pre-contract information obligations under the European Communities (Protection of Consumers in Respect of Contracts made by means of Distance Communication) Regulations 2001 and principles of best practice that exceed the requirements of the Regulations but that might nonetheless be adopted by webtraders for reputational reasons. The article presents the authors’ arguments in the context of an empirical study of 80 Ireland-based websites.

Habeas Corpus Discussion

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Regular readers may be interested in a discussion currently ongoing on IntLawGrrls between Naomi Norberg (U de Paris I), Diane Amann (UC Davis), Michelle Leighton (U San Fransisco) and Fiona de Londras (UCC) on habeas corpus in international human rights law. The discussion arose out President Musharraf’s invocation of Abraham Lincoln this weekend when he imposed emergency rule and suspended the constitution. The conversation considers the status of habeas corpus in international human rights law as an implicitly non-derogable right and considers what this means for both categories of human rights norms and for attempts to detain suspected terrorists without chare or trial or with significant delays between the time of arrest and the time of trial. The posts are numbered here sequentially – 1, 2, 3, 4, 5, 6