Youth Justice 2008: Measuring Compliance with the International Standards

The Centre for Criminal Justice and Human Rights at the Faculty of Law, University College of Cork is hosting a two day international conference on Youth Justice in Ireland and internationally in association with the Children Acts Advisory Board. The Conference is a two-day event – Thursday April 3rd and Friday 4th 2008 – designed to bring together a range of people from around the world who work in the field of youth justice as researchers, practitioners or policy makers.

The aim of this international conference is to provide a forum for the discussion of recent developments in the law and policy of youth justice in Ireland and internationally. It will identify recent trends in youth justice, and anticipate future challenges in the area.

The conference programme comprises International and Irish speakers. Academics and practitioners from all over the world (including Australia, New Zealand, Canada, the US, India, Nigeria and Europe) as well as from Ireland will present on and discuss trends in youth justice and the extent to which they meet international children’s rights standards. The conference will also be addressed by the Council of Europe Commissioner for Human Rights, Mr Thomas Hammarberg.

The full programme and booking details are available here. For bookings email youthjustice2008[at] Coverage of the plenary sessions will be provided on the CCJHR Blog.

The Right to Bear Arms

Readers following the historic case of District of Columbia v Heller on the meaning of the Second Amendment to the US Constitution and the ‘right to bear arms’ will be aware that oral argumentation is just finishing up in the US Supreme Court. SCOTUSblog live blogs here. Lyle Denniston provides a good first analysis here. And the oral argument ought soon to be available online here.

The key question under consideration is:

Whether provisions of the D.C. Code generally barring the registration of handguns, prohibiting carrying a pistol without a license, and requiring all lawful firearms to be kept unloaded and either disassembled or trigger locked violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

Irish Yearbook of International Law 2006

This week saw the publication of the first volume of the Irish Yearbook of International Law (2006), published by Hart Publications and edited by Co-Director of the CCJHR Dr. Siobhán Mullally and Dr. Jean Allain of Queen’s University Belfast. The Yearbook can be purchased here.

The Yearbook contains a mixture of pieces – articles, reports, book reviews, and documents. Yearbooks of this nature are vital tools for a nation’s diplomatic personnel as well as for the development of an understanding of a country’s international involvement for the purposes of academic work.

The IYIL 2007 is currently in preparation. Details of submission guidelines etc… are available here.

The main articles in the IYIL 2006 are:

  • David M. Ong, “International Environmental Law’s ‘Customary’ Dilemna: Betwixt General Principles and Treaty Rules”
  • Alexander Orakhelashvili, “The Power of the UN Security Council to Determine the Existence of a ‘Threat to the Peace’”
  • J. Paul McCutcheon & Gerard Coffey, “Life Sentences in Ireland and the European Convention on Human Rights”
  • Maria Walls (PhD Candidate, NUI Galway) and Augustina Palacios (University Carlos III, Madrid), “Changing the Paradigm – The Potential Impact of the UN Convention on the Rights of Persons with Disabilities”
  • Peter Hulsroj (Legal Adviser, Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty
  • Organization), “To the Rescue, All Hands: The Good Neighbour Principle in International Law”
  • Getahun Seifu (Ministry for Foreign Affairs, Ethiopia), “The Interplay of the ACP-EU Economic Partnership Agreements and the Rules of the World Trade Organisation: ‘Double Jeopardy’ in Africa”
  • Leopold von Carlowitz, “The Right of Property for Refugees and Displaced Persons? On the Progressive Development of Customary Law by the International Administrations in the Balkans”

Report on Forced Marriage in the UK

This post is contributed by Julia Foden, a PhD Candidate in the CCJHR and Faculty of Law and her research is funded through major IRCHSS thematic project grant for a 3 year research programme on Gender, Multiculturalism and Religious Diversity in contemporary Ireland awarded to her supervisor, and co-director of the CCJHR, Dr. Siobhan Mullally.

A report, “Forced marriage, family cohesion and community engagement: national learning through a case study of Luton” by Dr Nazia Khanum, published this week in the UK has found that while the scale of the problem of forced marriage cannot be accurately quantified, it is likely to be significantly higher than previous figures suggested. Some reports (Guardian) have suggested figures of 3000 for Britain as a whole based on the comprehensive research carried out in Luton.

Dr Khanum’s research, which was funded by the Home Office, involved interviews with a wide range of community support groups and state and semi-state agencies. She found that remarkably few victims or potential victims approached Citizens Advice Bureaux, Law Centres or the police, and suggests that the apparent preference for community-based organisations could be for reasons of trust and familiarity.

The Metropolitan Police Authority, responding to the report, has explained that because of the way crimes are recorded as, for example, beatings or kidnappings, the scale of the problem of forced marriage has been difficult to quantify. Previously the only ‘official figure’ was based on the workload of the Forced Marriage Unit. This is a unit within the Foreign and Commonwealth Office, established in 2005, which provides support to victims, in particular consular assistance in cases where young people are taken overseas, and guidance to professionals such as social workers, police officers and education and health professionals. The unit deals with 300 cases a year, of which 15% are men. It was felt by many people that this was the tip of the iceberg and now Dr Nazia Khanum’s report has found over 300 approaches to external bodies for advice around forced marriage in Luton alone per year.

Dr Khanum’s research also found that while the majority of the cases involved people of South Asian (mainly Pakistani and Bangladeshi) descent, forced marriage was also occurring in other ethnic minority communities such as people from Africa, the Middle East and parts of Eastern Europe.

It is important to emphasise the difference between forced marriage and arranged marriage. An arranged marriage is where parents or other family members take a leading role in making arrangements but both the parties to the marriage consent to it. A forced marriage was defined in A Choice By Right, a report by a Home Office Working Group in 2000 as

“… a marriage conducted without the valid consent of both parties, where duress is a factor. It is a violation of internationally recognised human rights standards and cannot be justified on religious or cultural grounds.”

Dr Nazia Khanum’s report suggests broadening the definition of forced marriage to include ‘false marriage’. By this she means a marriage willingly entered into but where there has been deception or lack of adequate knowledge about the other partner.

An important piece of legislation was passed in the UK last year and is due to come into force in the autumn. The Forced Marriage (Civil Protection) Act 2007 was originally introduced in the House of Lords as a private members bill by Lord Lester of Herne Hill and was then taken over by the government. The new law will enable courts to issue orders to prevent forced marriages and to protect people who may be or have been forced into marriage. An order could include a prohibition or restriction on conduct (including aiding and abetting) or could make requirements. An order can be sought by the victim, a relevant third party or another person with the leave of the court. Force is widely defined, including “coerce by threats or other psychological means” and “marriage” can mean a religious or civil marriage including a marriage which is not legally binding. The orders will be civil orders but with a power of arrest attached. The Act has the support of organisations working in the area such as Southall Black Sisters (position paper), Karma Nirvana and Imkaan, as well as the human rights organisation Liberty (briefing). It is innovative and has been widely welcomed as civil law remedies should protect and empower women, and the ‘victim’ will be able to initiate or cease proceedings.

It was decided, following a consultation in the UK (A Wrong Not A Right), not to create a specific criminal offence of forcing someone into marriage. It was felt that the disadvantages, such as forcing the practice underground, outweighed the advantages.

Racism and Homophobia in Schools

Article 42 of the Irish Constitution provides a right to free primary education which is to be provided for by the State. There are various difficulties with the satisfaction and sufficiency of this right as it stands, particularly in relation to children with particular educational needs (for more see Educational Rights in Irish Law by CCJHR member Dr. Conor O’Mahony). However, protection of children within the school environment is also vital to ensure that children benefit to the extent possible from the educational program within the school. Various factors can interfere with this, but today two pieces of research were released suggesting particular difficulties in this relation.

The first is a policy document of the Association of Secondary Teachers in Ireland expressing its disappointment and concern at the Department of Education’s lack of action to implement the National Action Plan against Racism in Schools (RTE). The second is a document emanating from the Association of Teachers and Lecturers in the UK, which documents the very high incidence of homophobia in schools (Guardian). Although this research concerns UK education, it seems likely that the same conclusions could be reached in relation to Irish education.

American Prisons: Some Perspectives

Today’s New York Times carries an editorial entitled “Prison Nation” in which recent statistics on the United States’ prison population released by the Pew Centre on the States are considered. According to these statistics, contained in a report entitled One in 100: Behind Bars in America 2008, the US’ prison population stands at approximately 1.6 million and racial disparities among those imprisoned are stark. The editorial argues that these statistics “point to a terrible waste of money and lives” and “underscore the urgent challenge facing the federal government and cash-strapped states to reduce their overreliance on incarceration without sacrificing public safety”. The editorial also acknowledges, however, that persuading politicians to reduce their reliance on incarceration will be difficult, “not least because building and running jailhouses has become a major industry”.

The editorial calls to mind two interesting publications. The first is an excellent edited collection entitled (coincidentally) Prison Nation: The Warehousing of America’s Poor (Amazon) which contains essays on inter alia privatization of prisons, racial disparities, sexual abuse, the HIV/AIDS crisis in American prisons.

The second is the Concluding Observations of the CERD on fifth and sixth periodic reports of the United States, which were released on February 28th. In these Concluding Observations the CERD expressed concern about “the persistent racial disparities in the criminal justice system…including the disproportionate number of persons belonging to racial, ethnic and national minorities in the prison population” (paragraph 20), the fact the “young offenders belonging to racial, ethnic and national minorities, including children, constitute a disproportionate number of those sentenced to life imprisonment without parole” (paragraph 21), and “the persistent and significant racial disparities with regard to the imposition of the death penalty, particularly those associated with the race of the victim” (paragraph 23).

LL.M Criminal Justice – Applications Open

The application process for the LL.M (Criminal Justice), provided by the Centre for Criminal Justice and Human Rights, Faculty of Law, UCC are now open. Applications can be made online and the closing date is 1st of May, 2008. Application details are available here.

The LLM (Criminal Justice) is a ground breaking post-graduate programme, unique to UCC. Students can select from a wide range of modules including Penology, Criminology, Juvenile Justice, International Criminal Law, International Humanitarian Law, Cyber Crime, Terrorism Dissonance and Criminal Justice, and Mental Health Law. In addition students complete the Advanced Criminal Process Clinical Programme which introduces students to the realities of the Irish Criminal Justice system through placements with the courts, the police, the prison service, victim support agencies and the probation service. Students are also required to complete a 12,500 word dissertation in the area of criminal justice which is supervised by an academic member of the Faculty of Law with expertise in the relevant area.

As the LL.M (Criminal Justice) is an innovative and dynamic program with a strong clinical aspect, it is in exceptionally high demand. It draws participants from various backgrounds, including law enforcement, as well as applicants joining direct from their primary law degree. Details of the members of the Centre are their research areas are available here; details of the Faculty of Law members are available here.

Any queries ought to be directed to Gerard Murphy, Clinical Education Coordinator a gerard.murphy[at]

Saadi v Italy – The ECtHR Reaffirms Article 3’s Absolute Protection

Article 3 of the ECHR, which prohibits torture, inhuman or degrading treatment or punishment, imposes positive obligations on states, including the obligation of non-refoulement (i.e. the obligation not to return and individual to a country where that individual is likely to be subjected to treatment that violates Article 3). This obligation has been clearly outlined and enforced by the European Court of Human Rights since Soering v United Kingdom and Chahal v United Kingdom. Since the commencement of the ‘War against Terrorism’, however, some governments have argued that they ought to be entitled to deport suspected terrorists, even to countries where they may be at risk of Article 3 treatment, provided they have acquired diplomatic assurances that the individual will be protected from such treatment.

These claims have been extremely controversial, particularly since diplomatic assurances are not legally binding; there is no recourse for the individual against the state that has given the assurance in the event of its breach (unless some kind of legitimate expectation claim could be successfully constructed, which seems somewhat unlikely) – as diplomatic tools they are enforced (or not) through diplomatic channels. However, diplomatic assurances are not always insufficient to meet the receiving state’s obligations: if the assurance covers the prohibited activities, relates to a situation over which the assuring state has control, and comes from a reliable source then arguably the receiving state can rely on it. (For more on this see, e.g., this piece originally published in the Irish Law Times). One of the primary questions to arise since 2001, however, is whether the suspected involvement of the individual concerned in terrorist activity in any way reduces a state’s positive obligations under Article 3.

This question was directly addressed by the European Court of Human Rights in last week’s judgment in Saadi v Italy (judgment here). The case concerned a Tunisian citizen whom Italy wished to return to Tunisia but who claimed that he was likely to be subjected to behaviour violating Article 3 on his return and therefore that Italy had an obligation of non-refoulement towards him. The Italian government had received an assurance from Tunisia that Tunisian law guaranteed a fair trial and prisoners rights and that Saadi would be treated in strict conformity with these national laws. Pursuant to that assurance Italy claimed compliance with its Article 3 obligations; Saadi claimed that the assurance did not satisfy Article 3.

Although the Court accepted the grave difficulties that contemporary terrorism poses to states, it rejected the argument offered by the United Kingdom, which was a third party intervener to the proceeding, that in relation to suspected terrorists the court ought to weigh the community interest against the risk of violatory conduct perpetrated by a third party state (in this case, Tunisia). According to the Court, at paragraph 138:

Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule (see the case-law cited in paragraph 130 above). It must therefore reaffirm the principle stated in the Chahal judgment (cited above, § 81) that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3, even where such treatment is inflicted by another State. In that connection, the conduct of the person concerned, however undesirable or dangerous, cannot be taken into account.

And at paragraph 140:

With regard to the second branch of the United Kingdom Government’s arguments, to the effect that where an applicant presents a threat to national security, stronger evidence must be adduced to prove that there is a risk of ill-treatment (see paragraph 122 above), the Court observes that such an approach is not compatible with the absolute nature of the protection afforded by Article 3 either. It amounts to asserting that, in the absence of evidence meeting a higher standard, protection of national security justifies accepting more readily a risk of ill-treatment for the individual. The Court therefore sees no reason to modify the relevant standard of proof, as suggested by the third-party intervener, by requiring in cases like the present that it be proved that subjection to ill-treatment is “more likely than not”. On the contrary, it reaffirms that for a planned forcible expulsion to be in breach of the Convention it is necessary – and sufficient – for substantial grounds to have been sown for believing that there is a real risk that the person concerned will be subjected i the receiving country to treatment prohibited by Article 3.

The Court accepted that diplomatic assurances might be sufficient in some cases to satisfy a state’s Article 3 obligations, but this was not the case here given the strong evidence of widespread torture and ill-treatment in Tunisian detention facilities. Thus Saadi could not be deported; any deportation would violate Article 3.