Panel 3: The Role of Transitional Justice in Addressing Crimes of Sexual Violence

The second afternoon session, examining the response of transitional justice mechanisms such as truth commissions, trials and reparations to sexual violence was as depressing as it was informative. The three speakers brought experiential, methodological and geographic diversity to their papers, but the recurring theme was the immense difficulty of responding adequately to the psycho-social trauma of mass rape in the post-conflict environment.
Fionnuala Ní Aoláin focussed her discussion of truth, DDR and reparation mechanisms, but concentrated mainly on the limits of our understandings of harm. She argued that the exclusionary emphasis on sexual violence fails to fully understand the problem of women’s experiences in conflict situations. She used an examination of the afore-mentioned mechanisms to illustrate the gap between what women cite as harms and those that Truth Commissions and courts say are harms. Prof. Ni Aoláin also referred to the consistent criticism of transitional justice that it replicates the centuries-old division between the public and private sphere, reflecting make fears of violation over those suffered by many women. Similarly, the emphasis of transitional mechanisms on primary harms instead of secondary harms marginalises the experience of women who experience the latter in the same way as the former.
Professor Penny Andrews spoke of her extensive experience of transitional justice in South Africa, prefacing her remarks with the sobering observation that sexual violence rates have reached “epidemic” levels after 1994. Though international law has had a major impact on legal development in the State, it has not translated into protections for women bar in some encouraging isolated cases highlighted by the speaker. As Prof. Andrews pointed out, “a legal edifice can be in place but it doesn’t addresses attitudes”. A theme running through the three speaker’s comments was the inadequacy of transitional justice to respond to “ordinary” rape and the need for multi-faceted approaches. Prof. Andrews’ brief treatment of the Jacob Zuma case and the racialisation of gender-based violence shows how far justice and freedom in the private sphere are from the ostensible freedom in the constitution and state structures.
Judge Teresa Doherty, currently sitting in the Special Court for Sierra Leone and formerly of the Papua New Guinea Magistrate, High and Supreme Courts brought her experience in these courts to illustrate the difficulties of trial-based responses to gender-based violence. As presiding Judge in the AFRC trial, she has been responsible for crafting original jurisprudence on the crimes of forced marriage and sexual slavery. Prosecutions for rape and sexual violence remain all too rare so it was comforting to hear of this progress. Nonetheless, Judge Doherty’s references to trial of gender-based violence and sexual slavery in Papua New Guinea were once more sobering, capped by a tragicomic tale of a man who beat his wife to death who came before her court unable to understand that domestic chores might be subject to division between man and wife. In concurrence with her two preceding speakers, Judge Doherty stressed the necessity of education, and incontestable argument in light of the three discussions.

Summary provided by PhD candidate and Government of Ireland Scholar Pádraig McAuliffe.

Panel 1: Responding to Sexual Violence – Recent Developments in International Law

The first panel session focused on the role played by International Law, and in particular, International Tribunals, in responding to Sexual Violence in conflicts. The session provided both an account of some positive developments in the area as well as problems, in respect of law (both International and domestic), and cultural and political challenges in responding to sexual violence.
The first speaker, Dr Kelly Askin, opened the session with an account of how the past 15 years has the recognition of Gender Based Violence (GBV) as a human rights issue. Taking the conference through the key court decisions from the International Criminal Tribunals for the former Yugoslavia and Rwanda, she informed the conference that the cases have established that GBV can be prosecuted as a war crime even in cases of defendants who were “in charge” rather than directly involved in the crimes. However, setting the tone for the rest of the speakers, Dr Askin went on to note the many missed opportunities and acquittals, and the fact that it takes sustained pressure for these crimes to be successfully prosecuted in practice. She also noted that now that the International Tribunals had set down the jurisprudence, it was time for the domestic courts to “step up” and do more to prosecute GBV.
The downbeat tone was picked up by the next speaker, Professor Doris Buss, who presented findings on the legacy of the International Criminal Tribunal for Rwanda. Reporting on the “bleak” record of the Tribunal she noted that there was a very low success rate in prosecuting sexual offences. Problems were found at all points in the system – investigations, prosecution and trials. Professor Buss noted that whilst in International Law rape had become visible as a mass crime, it remained almost invisible at the point of the individual; and whilst International Law has developed significantly in relation to prosecuting GBV, the institutional and the cultural problems continue.
The final speaker, Amira Khair, presented a disturbing account of the practical experience of working with women victims of sexual violence in Sudan. The experience made clear how Sudanese law is not a solution to GBV, but is in fact part of the problem. The law on rape exposes the victims to further abuse, as it requires four male witnesses to establish a victim did not consent to the sexual act. Without these witnesses there is a danger that the victim could be prosecuted for adultery because she had sex outside marriage. The law therefore does not provide the space for victims to seek legal protection and/or justice; something reinforced by the cultural context of not speaking out in relation to sex.
The session concluded that International Tribunals using International Law were only part of the way in which rape victims can obtain justice. Local courts, truth and reconciliation commissions, reparations, all had a part to play in tackling GBV after a conflict. It also took courage on the part of the legal players; which in itself was a telling issue as Professor Buss concluded “How did we get to the point where it needed courage to convict someone for rape?”

Keynote Address: Mr Micheál Martin, T.D., Minister for Foreign Affairs

Mr Micheál Martin opened the Conference by highlighting recent International and national developments in relation to sexual violence. He began by welcoming the important development at the heart of the conference – that sexual violence was now recognised as a human rights violation. Indeed he emphasised that Ireland supported the fact that sexual violence was now being prosecuted as a crime against humanity and a war crime.
Mr Martin informed the conference that Ireland has recently taken over as chair of the Human Security Network (a group of like-minded countries from all regions of the world that, at the level of Foreign Ministers, maintains dialogue on questions pertaining to human security); the conference is the first event of Ireland’s chair of the network. The Minister stressed that Ireland was committed to making Gender Based Violence a focus of its time as Chair of the Network in order to ensure that the eyes of the International Community remained focussed on the issue.
Domestically, Mr Martin noted that gender based violence was also a high priority for the government. He informed the Conference of recent developments nationally which included the establishment in 2007 of Cosc, the National Office for the Prevention of Domestic, Sexual and Gender-based Violence. The initiative created a dedicated office at Government level which has the key responsibility to ensure the delivery of a co-ordinated “whole of Government” response to domestic, sexual and gender-based violence. Cosc will launch the first phase of consultation on a National strategic Action Plan on Domestic and Sexual Violence in autumn 2008. Legislation reforming the whole area of sexual offences to ensure a workable, updated and simpler approach to the area would also be introduced in the future.
The Minister noted that conference was very relevant to the work of the government both internationally and nationally. He welcomed delegates and speakers and the contribution they would make to the overall debates that were necessary to ensure ongoing reform to the law on Sexual Violence at all levels.

Reforming Laws on Sexual Violence: International Perspectives

The Centre for Criminal Justice and Human Rights at the Faculty of Law, University College of Cork is hosting the third Annual Criminal Law Conference with the support of the Department of Foreign Affairs. It is the first event of Ireland’s chair of the Human Security Network 2008-2009.
The aims of this international conference are to assess international criminal law developments on crimes of secual violence, to inform law and policy debates to strengthen responses to sexual violence and to promote awareness of sexual violence as a human rights violation. The conference programme comprises International and Irish speakers. Academics and practitioners from all over the world (including Australia, Canada, the US, Sudan, Timor-Leste and Europe) as well as from Ireland will present on and discuss trends in the prosecution of sexual violence with particular focus on International law developments.
The sessions will be summarised and posted on the blog.

Justice for Victims initiative poses a challenge to the law on double jeopardy

The Minister for Justice announced yesterday a ‘major new’ Justice for Victims initiative. The announcement caused a furore in the Dáil because the press conference clashed with a scheduled debate on the renewal of the Offences against the State Act. Fine Gael claimed that the Minister was trying to ‘dodge’ the debate and was setting out a victims initiative at the same time as planning to reject its proposed legislation on victims due for debate next week. The timing of the announcement was clearly inadvisable and the opposition repeatedly accused the Minister of “arrogance” and “contempt for the house”.

The initiative, however, raises some fundamental concerns regarding the substance of the measures. The Minister announced that there would be legislation introduced in 2009 which would:
Reform the victim impact statement mechanism in order to give victim status to next of kin in homicide cases.
Introduce new mechanisms to deal with an acquittal where compelling evidence of guilt emerges after the acquittal
Allow cases to be re-opened where an acquittal arises from an error in law by a Judge.
Provide for new prosecutions where there is evidence that the original acquittal was tainted by interference with the trial process.
Introduce measures to restrict unjustified and vexatious imputations at trial against the character of a deceased or incapacitated victim or witness.

The Irish Council for Civil Liberties immediately responded to the initiative stating that victims rights would be not be strengthened by removing the rights of the accused, noting that it recently proposed a Charter of Rights for the Victims of Crime, based on human rights principles.

The government’s provisions relating to the re-opening of cases could undermine the fundamental principle of double jeopardy preventing a person being tried for the same crime twice. The double jeopardy principle is meant to ensure that prosecution is not used by government to harass or oppress people and ensure finality in the criminal justice process. It is enshrined in many human rights documents including the UN International Covenant on Civil and Political Rights (Article 14(7)) and the Seventh Protocol of the European Convention on Human Rights which states

“No one shall be liable for be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”

This provision may cause problems for the government’s proposals as Ireland has ratified the protocol and will at the very least need to be taken into account in the drafting of the provisions.

Shortlist for next High Commissioner for Human Rights reported

This blog post was submitted by PhD candidate and Government of Ireland Scholar Pádraig McAuliffe, who is reading for a PhD entitled The Serious Crimes Process of East Timor in the Field of Human Rights Law under the supervision of CCJHR Co-Director, Dr. Siobhán Mullally

Human Rights Tribune reported yesterday that the UN panel created to shortlist candidates to replace Louise Arbour as High Commissioner for Human Rights has finally submitted the list to UNSG Ban Ki-Moon. On the list are Navanethem Pillay of South Africa, currently a judge at the ICC (International Criminal Court) and a former defence attorney for political prisoners during apartheid; Louis Alfonso de Alba of Mexico, the former President of the Human Rights Council and Mexico’s Ambassador in Geneva; Francis Deng of Sudan, currently a UN special advisor for the prevention of genocide and José Ramos Horta, a Nobel Peace Prize winner in 1996 and current President of East Timor.

Judge Pillay will be familiar to CCJHR students from her address earlier in the year, and is thought to be joint-favourite with de Alba. The other two candidacies are a little more puzzling. Ramos-Horta has only recently recovered from an assassination attempt in July and is currently presiding over a state that has recently pardoned a number of serious human rights violators. Only today he made possibly prejudicial remarks about one Angelita Pires, girlfriend of his would-be assassin Alfredo Reinado, who is under investigation for conspiracy. Francis Deng was Minister of State for Foreign Affairs of the Sudan (1976-1980) and Sudanese ambassador to the United States, to Scandinavia, and to Canada. His candidacy is an interesting development given Sudan’s near-pariah status in the international community. However, he served during from 1972 to 1983, the only period since Sudan’s independence in 1956 when it has not been at war with people within its territory. He is also a former Representative of the United Nations Secretary-General on Internally Displaced Persons (1994-2004).

Will everyone say No to the WTO?

The Referendum on the Lisbon Treaty brought the issue of the WTO Doha round of negotiations to the public attention. Farmers took to the streets of Dublin to protest the negotiations and warn the country that the beef industry would be ‘decimated’ with a loss of rural jobs and €2bn. The issue rapidly became mixed with the debate on the Lisbon Treaty and the concern about the negotiating position of EU Trade Commissioner Peter Mandelson which resulted in him becoming the poster boy for the No campaign.

At the last minute the government promised the farmers that all would be well if Lisbon went ahead – Ireland would still have its veto and use it on any unsatisfactory Doha agreement. Yet the results from rural areas in the referendum suggest many farmers simply did not believe the Government and remained fearful of the Doha negotiations.

The Doha round began in 2001 and aimed to make globalisation more inclusive and help the world’s poor, in particular by cutting barriers and subsidies in farming. The key issues under negotiation are farm subsidies, farm tariffs and industrial goods. So far the negotiations have been unsuccessful. The 2006 deadline for agreement was missed with problems centred on the issue of state aid given to key industries in the west and in particular the US/EU farming subsidies and tariffs.

In May fresh draft plans were produced by the WTO which is hoping to achieve an agreement by the end of the year. WTO Director-General Pascal Lamy linked the success of the negotiations to a solution to the current world food crisis saying that agreement would offer

“medium to long-term solutions to the current crisis…We all aim to substantially lower barriers to trade in agricultural products and diminish levels of trade distorting subsidies, particularly in developed countries that have hampered food production and investment in agriculture in many developing countries.”

In response leading NGOs, farming associations, trade unions and social movements issued an open letter stating that a Doha agreement would in fact make the situation worse. Instead they called for:

1. Governments and communities to have a range of tools at their disposal to build resilient food and agricultural systems that are ready for the challenges that lie ahead.
2. Volatile agricultural prices to be addressed through national policies and global actions to avert food crises and to ensure small producers a reliable and steady income.
3. Governments to establish safety nets and public distribution systems to prevent widespread hunger.
4. A reform of the food aid system, with donor countries ending their practice of dumping their surplus food products on developing nations and instead providing cash so that governments and aid agencies can buy food locally.

The fear is that increased free trade in farming will in fact mean increased power to the already powerful “multinational agribusiness” leaving local farmers around the world unable to manage control their own destinies and reducing the ability of developing nations to protect their populations from hunger in the face of food shortages and rising prices. Free trade has little interest in food security, despite Pascal Lamy’s claim that the best way to end the food crisis is to encourage economic growth and eliminate poverty so that the poor would be able to afford a decent diet.
For Ireland’s farmers, the fears of a deal that will cut their valuable subsidies and open up the EU to cheap foreign agricultural products have not disappeared because the No campaign won the Lisbon vote. Nothing has changed in relation to the WTO except that Ireland’s position in Europe has perhaps been weakened. However, it maybe that the Doha round was never a threat and that seven years of negotiations will result in no deal.

Primer on US Supreme Court decision on Constitutional Rights in Guantanamo Bay

On June 12th the U.S. Supreme Court handed down its judgment in the combined cases of Boumediene v Bush and Al Odah v United States (judgment). By a majority of 5-4 the Court held, in a judgment written by Kennedy J., that the Constitutional protection of habeas corpus applied to those detained in Guantánamo Bay who, as a result, are entitled to take habeas petitions in federal district courts. The Court further held that the review mechanisms currently operating in the base (i.e. Combatant Status Review Tribunals with limited federal appeal) are not adequate alternatives to habeas corpus and therefore do not preclude habeas petitions. Given the significance of the decision an unusually lengthy post follows on the decision of the Court. interested parties are strongly advised to read also the concurring and dissenting opinions, all of which are spirited and reveal the extent to which the Court is fundamentally divided on the question of executive detention of those identified as terrorists by the Executive branch.

As an initial matter the Court held that Congress has successfully stripped federal courts of jurisdiction to hear habeas corpus petitions brought by detainees in Guantánamo Bay under the statutory habeas provisions. As a result, if the petitioners are to be entitled to bring any habeas claim it must be on the basis of the constitution. [Interestingly the Court did not consider whether there was any basis for bringing such a claim reliant on customary international law or international human rights law treaties, which might have also been a viable (although necessarily weaker) basis for finding in the petitioners’ favour. These international legal arguments were never presented to the Court by counsel for the petitioners, a decision that I criticise in an article forthcoming in the Israel Law Review and available in unformatted form here].

Article I(9)(2) of the U.S. Constitution, known as the Suspension Clause, provides that the privilege of habeas corpus may not be suspended except where invasion or security requires it. This has been interpreted as enshrining a right to habeas in the Constitution (Ex parte Bollman). The main argument proposed by the Government was that this constitutional provision did not apply to the petitioners because they were located outside of the territorial jurisdiction of the United States. this argument was refuted on two bases – firstly the importance of habeas corpus as one of the few rights protected in the US Constitution in its original form, i.e. before the Bill of Rights was introduced (a point I made in the ICLJ and Panoptica in 2007), and secondly the historical meaning of the writ as one that extended to every situation of effective sovereignty even in the absence of formal sovereignty. In an important passage, on p. 15, Kennedy J. holds:

“In our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary ill have a time-tested device, the writ, to maintain the “delicate balance of governance” that is itself the surest safeguard of liberty. See Hamdi, 542 U. S., at 536 (plurality opinion). The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account…The separation-of powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause.”

In the earlier case of Rasul v Bush Kennedy J. had indicated his belief that the Constitution might run to Guantánamo Bay because it was essentially an unincorporated territory of the United States. This reasoning, heavily influenced by The Insular Cases, arises in a much more central fashion in yesterday’s judgment. On pages 22 – 25 Kennedy J. held:

“Guantanamo Bay is not formally part of the United States… And under the terms of the lease between the United States and Cuba, Cuba retains “ultimate sovereignty” over the territory while the United States exercises “complete jurisdiction and control.”…Under the terms of the 1934 Treaty, however, Cuba effectively has no rights as a sovereign until the parties agree to modification of the 1903 Lease Agreement or the United States abandons the base…Accordingly, for purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory”.

Building on both of these bases Kennedy J. hands down an extremely strongly worded passage on the extra-territorial application of the US Constitution on p.p. 35-36 that at once constrains notions that the Executive can act with impunity provided it acts extra-territorially and asserts the right of the federal courts to ensure the effective separation of powers no matter where the state may be acting:

“The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.”

Kennedy J. then goes on to identify the three key considerations in assessing whether the Constitutional right to habeas corpus applies in any particular instance of extra-territorial detention: (1) the citizenship and status of the detainee and the adequacy of the process by which a decision to detain was made, (2) the nature of the sites of apprehension and detention, (3) the practical difficulties involved in resolving the petitioner’s entitlement to the writ of habeas corpus (p.p. 36-37). By application of these criteria he held, at p. 41:

“It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains
de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding. We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (SCALIA, J., dissenting)”

Having held that the petitioners are entitled to habeas corpus or an adequate alternative the Court went on to consider the basic requirements of a review process in order to meet Constitutional requirements. Although Kennedy J. expressly states that the elements identified in the judgment are not exhaustive (p.p. 49-50) he outlines the following: (1) the review process must provide opportunity for the petitioner to make a meaningful case that his detention is unlawful, (2) the review body must have the capacity to order release although that is not the only remedy that might be provided in the occasion of a successful petition, (3) where a person is detained on the basis of executive, rather than court, order the review tribunal must be enabled to conduct a thorough and meaningful review in relation to whether due process has been accorded. In sum, he held, at p. 57:

“For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.”

And, at p. 58:

“[W]hen the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.”

The processes available to Guantanamo Bay detainees under the applicable statutes (i.e. Detainee Treatment Act 2005 and Military Commissions Act 2006) did not, the Court held, satisfy these requirements. The Court held that s. 7 of the Military Commissions Act 2006 is unconstitutional (p.66), and that the Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition (p. 66). In his closing passage Kennedy J. appears to try to placate those who will protest that this decision constitutes an unconscionable burden on the Executive in its attempts to secure the United States against the contemporary threat but nevertheless clearly asserts the Court’s conviction that it is entitled, if not obliged, to ensure that basic principles of the Rule of Law are maintained notwithstanding substantial security threats (p.p. 68-69). The passage, although lengthy, is worth quoting in full:

“In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches…Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security. Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not.

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.

Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.”

The Hijab in Irish Schools

This blog post is contributed by PhD candidate Mairead Enright whose research (on the nikah nama) is supervised by Dr. Siobhan Mullally and funded by an IRCHSS thematic grant for research into Gender, Equality, Multiculturalism and Religious Diversity

The issue of religious dress is at last beginning to make headlines in Ireland just as it has done in Denmark, France and the UK. Medical students who wished to wear hijab while working at Beaumont hospital (they were permitted to wear disposable hijabs) and a Sikh recruit to the Garda reserve who wished to wear a turban as part of his uniform (he felt unable to join after permission was refused) were the focus of comment in 2007. In May of this year the issue of religious dress in schools gained prominence.

14-year-old Shekinah Egan’s parents requested that she be allowed to wear the hijab to school in Gorey, Co. Wexford. Her school board of management granted permission but the principal referred the question to the Department of Education, which refused to provide the guidance sought. In practice, Muslim students have had permission to wear the hijab in a number of schools for some time. However, there is no consensus on the issue; the Sunday Business Post reports that a south Dublin school has banned the hijab, citing its Catholic ethos as justification. Both the ASTI and the Irish Council of Imams have emphasised the desirability of achieving a consensus on the issue.

The current Minister for Education has said that the government will consider whether to issue guidelines on the wearing of hijab in schools when it drafts an intercultural education strategy some time later this year. It seems likely that, if guidelines are issued, schools will retain a significant amount of discretion around the issue of religious dress. As we await the department’s decision, a number of important issues have ripened for consideration. They include:

· What the constitutional position on this issue will be. To date, there is no case on point and any argument on the hijab would be from first principles. For a summary of possible arguments see Claire Horgan, “A Veiled Problem: Religion in Irish Schools” (2005) 8 TCLR 5 (Available on HeinOnline). At ECtHR level, hijab bans were upheld in the context of a teacher of young children in a non-denominational school in Dahlab v Switzerland and in respect of a university student in Leyla Sahin v Turkey (where, of course, the state’s interest in preserving a policy of secularism was a core issue). Arguably, any Irish case would raise very different considerations, not least because the majority of Irish schools are Catholic in ethos rather than non-denominational. In England and Wales, school bans on forms of Muslim dress other than the headscarf – the jilbab (a long gown) and the niqab (a veil which obscures the face except the eyes) – have been upheld as consistent with the ECHR by the House of Lords and the High Court respectively. However, these decisions were made in the context of schools where alternative forms of dress which were acceptable to the majority of Muslim students in those schools were already permitted. In terms of issues of non-discrimination and freedom of religion, it may be that Ireland is largely free to carve its own path.

· Whether Ireland will follow other European countries on the retreat from normative multiculturalism, or whether aspirations for what the Statement on Integration Strategy and Diversity Management calls a “common sense” approach to cultural difference will be realised in a different form which will take account of the peculiarities of the Irish context. The education spokesmen of the major opposition parties have argued that the hijab engages crucial questions around the Irish approach to cultural difference and have called for a ban on the hijab in public schools. Labour’s Ruairí Quinn stated that “If people want to come into a western society that is Christian and secular, they need to conform to the rules and regulations of that country… Nobody is formally asking them to come here. In the interests of integration and assimilation, they should embrace our culture…Irish girls don’t wear headscarves.” Speaking to the Irish Times, Fine Gael’s Brian Hayes observed that “[t]here is enough segregation in Ireland without adding this to it.” Public opinion appears to be more nuanced. Monday’s Irish Times reported the results of TNS/mrbi poll on the place of the Islamic headscarf in Irish schools. 48% of those surveyed felt that Muslim students should be allowed to wear the hijab in state schools with significant differences of opinion between men and women, younger and older people, socio-economic groups and supporters of the main political parties.

· Whether it will be possible to develop policies around interculturalism which avoid essentialism and take account of the complexity of the issues at hand. For instance, the intersections of racial, cultural, religious and gender differences which characterise the hijab as a policy problem. To date, reference to gender has been curiously absent from political statements on the hijab. However, media commentary on the matter has run the full gamut of the “Multiculturalism vs. Feminism” debate. For a flavour, see Martina Devlin in the Irish Independent, Alison O’Connor in the Sunday Business Post and Breda O’Brien in the Irish Times.

· What will be the role of unelected representative bodies such as the Irish Council of Imams, which are gaining a significant role as spokesmen for religious and cultural groups, what effect their prominence in policy debates will have at a local level, and what steps will be taken to ensure that ‘minorities within minorities’, especially women and the young, will have a meaningful voice in negotiations around culture.

· Whether we are seeing in statements such as Mr. Quinn’s assertion that “Irish girls don’t wear headscarves” a nascent politics of belonging – similar to the exclusionary politics of Britishness promote
d in the UK – which defines Irishness, not in terms of birth or blood, but in terms of behaviour. Would our politics of identity be able to absorb hybrid notions of identity and will the process of integration require transformation on the part of established Irish citizens as well as on the part of newcomers? The story of the girl at the centre of the current hijab controversy: Shekinah Egan; the daughter of Irish and British converts to Islam, who wears her hijab to play camogie, neatly embodies this issue.

New ECHR Blog

Antoine Buyse, Utrecht, has just started a new and already very interesting blog dedicated to the ECHR. As far as I know it’s the only blog with a sole focus on issues relating to the Strasbourg Court and the implementation and substance of the Convention making it a very welcome addition to the Blogosphere – ECHR Blog.