The Garda Tapes Controversy

One curious aspect of the Garda tapes controversy has been the focus that some commentators have placed upon the role of the Attorney General Máire Whelan and the misunderstandings as to the role of the Attorney.

Although the Attorney General was not mentioned in the Free State Constitution of 1922, the Office of Attorney General has existed since the foundation of the State.  The Ministers and Secretaries Act, 1924 at Section 6 gave the office some post-independence legislative grounding charging the Attorney with representing the State in legal actions, prosecuting offences (a role which was taken over by the DPP in 1974) and the duty of advising the Government in matters of law and legal opinion.  The First Attorney General post-independence was Hugh Kennedy, who was also elected to the Dáil as a TD in 1923 and served in both offices for a number of months.  During the Dáil debates on what became the Ministers and Secretaries Act, 1924 a number of Deputies noted that there was significant confusing as to whether the Attorney was a member of the Government or not.

Article 30 of Bunreacht na hÉireann 1937 set out the constitutional position regarding the Attorney General and her role. There were few changes to the role with Article 30.1 confirming that the Attorney is an advisor to the Government in matters of law and legal opinion although there were a number of additional roles and responsibilities for the Attorney in the areas of references of Bills under Article 26 and the Council of State (of which she is an ex-officio member).  Article 30.4 makes it clear that the Attorney is not a member of the Government and while the Attorney sits in on cabinet meetings as an advisor she is not a member of the government. This point is particularly important when it comes to the current debate around the Garda tapes.

It is, as yet, far from clear what exactly has transpired and what the long term effects of the Garda tapes controversy will be. It had appeared from initial reports that the Attorney General was aware to a certain extent that the practice of records was ongoing and that she has been working with the Commissioner investigating the matter since November [**but see update below]. It also appears that the Attorney approached An Taoiseach to further highlight the issues and additional details that have come to light, which, according to reports, arose in the context of ongoing litigation.

There have been questions both inside and outside the Dáil as to why the Attorney did not bring this to the attention of the cabinet sooner. However, in many ways, these questions miss the point. Firstly, it is unclear to what extent the Attorney was aware of the recordings and the systems in place with Garda Stations, as she clearly lacks any formal relationship with the force. Secondly, while I understand that it is practice for the Attorney to brief the Cabinet on important cases and working groups throughout the year, she could not possibly bring every case she works on to Cabinet and it is utterly unrealistic to expect her to do so.

Finally – and most crucially – the Attorney is clearly not a member of Government (as stipulated by Article 30.4 of the Constitution), but rather a legal advisor to the Government. She has no executive power whatsoever in relation to the Gardaí, the administration of justice or prosecution of offences; such power correctly vests in the Minister for Justice. It would simply have been outside of the Attorney General’s constitutional ambit to go any further than to advise the Government of matters as she became aware of them and their importance; she could not ever act unilaterally. The current Attorney has shown herself willing to give unpopular advice to the Government, particular in the context of the Referendum on the Fiscal Compact Treaty. Any attempts to scapegoat the Attorney for the current crisis would be wide of the mark based on the current information available.

[*Update: latest reports indicate that the AG was not aware of full extent of the systematic taping in November, was not a member of the working group established to look into the matter and only became aware of the extent of the system in place in the last few days.]

Dr Seán Ó Conaill is the Director of the BCL (Law and Irish) Programme at UCC.

Prosecutor of the International Criminal Court, Ms Fatou Bensouda, to deliver a public lecture at the Royal Irish Academy, Dublin

Fatou Bensouda

The Prosecutor of the International Criminal Court, Ms Fatou Bensouda, will deliver a public lecture at the Royal Irish Academy, Dublin, on Monday 16th December, on the topic, ‘The International Criminal Court: current challenges and future prospects.’  The event will be chaired by the Chief Justice, Ms Justice Susan Denham.


The event is hosted by the Centre for Criminal Justice and Human Rights, Faculty of Law, UCC, and the Department of Foreign Affairs and Trade.  It is the first public event held in Ireland by the Office of the Prosecutor of the International Criminal Court .


Ms Fatou Bensouda, a national of The Gambia, was elected to the position of the Prosecutor of the International Criminal Court, on 12 December 2011. Ms. Bensouda had previously held the position of ICC Deputy Prosecutor (Prosecutions). Prior to her work at the International Criminal Court, Mrs. Bensouda worked as Legal Adviser and Trial Attorney at the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania, rising to the position of Senior Legal Advisor and Head of The Legal Advisory Unit.


For further information contact Prof Siobhán Mullally, Director of the Centre for Criminal Justice and Human Rights,  (Please note that this event is fully booked.)


“Freedom of Expression in Syria”

Freedom of Expression in Syria CCJHR November 2013

Front Line Defenders, in association with UCC Centre for Global Development and Centre for Criminal Justice and Human Rights

invite you to

“Freedom of Expression in Syria”



Director of the Syrian Centre for Media & Freedom of Expression

Wednesday 27th November 2013 at 6 p.m.

Room G10, Civil Engineering Building, UCC

Yara Bader has played a key role in reporting the daily developments in Syria since the beginning of the uprising in early 2011.  She is married to prominent Syrian human rights defender Mazen Darwish, who is also a journalist and who, up until his arrest, was the Director of the Syrian Centre for Media and Freedom of Expression (SCM).

In a raid on the SCM offices by Syrian Intelligence in February 2012, Darwish, Bader and 14 of their colleagues were detained and taken to the Air Force Intelligence facility, notorious for the abuse and torture of detainees.  Bader and her female colleagues were released within a week, but Darwish has remained imprisoned to this date.  For several months he was held incommunicado and, according to the reports from other detainees, he has been subjected to torture and other ill-treatment.  Today, Bader works from exile, campaigning for Syrian detainees and continuing the work of the SCM.

The concept of ‘international community’ and the International Court of Justice


By Gleider I Hernández

Despite its constant invocation in doctrine, rhetoric and countless international documents, international lawyers still struggle with arriving at a well-defined understanding of the concept of an ‘international community’, whether in identifying the members that compose it, the values and norms that it represents, or the processes which underlie its functioning. The term could be reduced merely to ‘constructive abstraction’, or rhetorical flourish; yet a concept of international community that would be legally operative (create enforceable legal rights and obligations) would require reflection as to the nature of international law and whether it serves the interests of a constituted community.

There are two primary understandings of the concept of ‘international community’. The first that the concept is purely relational: a fully inter-State order, with only a law of co-existence that demands only such rules and norms such as to ensure the survival of members of that society. According to such a view, the members of international society are primarily, if not exclusively, sovereign States. No common interest can be distilled from such a form. The second understanding is not formal, but substantive: the international community would be said to share a number of common interests and fundamental values that the legal order would exist to safeguard. Made legally operative, and embracing a distinct extra-legal element, the claimed ‘promise of justice’ embodied therein would lead to actors and institutions within the system claiming the obligation to protect the community interest.

I sought first to distil the essential differences between the two terms, as the latter understanding especially would empower international actors and institutions to enforce the community’s interest or ‘will’. In many respects, the very identification of the community’s interest is controversial, and as such has not always been specified or made clear in multilateral treaties. Hence, it has been left to judicial institutions, and primarily the principal judicial organ of the United Nations, the International Court of Justice, to elucidate these difficult concepts and to uphold or reject claims based on community interest. What transpired from my research was very interesting. In most cases, the Court was very cautious not to defend an international common interest, instead reading such obligations through a prism of multilateral or bilateral treaty relations: in short, through the prism of consent.

I would like the highlight four cases in which the Court refused to recognise the substantive character of norms claimed to be fundamental to the international community, which we international lawyers call jus cogens (peremptory norms of general international law), and obligations erga omnes (obligations ‘owed to all’). The Court has rejected claims that States sought with respect to indirect injuries (ie not injuries to their territory or to their nationals) against other States in the name of the international community. It rejected, for example, the claims of Ethiopia and Liberia in South West Africa (1966) where they claimed against South Africa for its imposition of apartheid over Namibia in purported violation of the League Covenant and the United Nations Charter. The erga omnes claim was rejected, where the applicants were denied standing on the basis that they could not bring forward an actio popularis (an action brought by a member of the public in the name of public order).

It rejected those of Portugal in East Timor (1995), where that State claimed, on behalf of the people of East Timor, against Australia for treaties that it had signed with Indonesia on the maritime delimitation in the area. Although the Court did not formally declare that Portugal had no standing, it concluded that Indonesia was an indispensable third party to the dispute, and that without Indonesia’s consent, it could not possibly proceed to hear the merits.

The jus cogens or peremptory, non-derogable character of various human rights obligations has fared little better before the Court. In Armed Activities in the Congo (2006), the Democratic Republic of the Congo claimed against Rwanda for various serious human rights violations, including war crimes, crimes against humanity, and even genocide. The Court, for the first time, actually recognised the concept. Yet even though it was willing to concede that the human rights violations could, if proven, constitute violations of jus cogens, it considered that it did not have consent over the dispute. Rwanda’s lack of consent was clear from its ‘reservations’ (unilateral statements tagged on to its ratification of treaties), through which it refused to consent to the Court’s jurisdiction. The Court upheld Rwanda’s lack of consent and declined to proceed to the merits.

Finally, in Jurisdictional Immunities of the State (2012), Germany claimed against Italy’s inaction against the Italian domestic courts, which were not recognising Germany’s immunity in respect of Nazi actions committed in Italy and against Italian nationals. Italy claimed that the jus cogens nature of the violations allowed its courts to ignore Germany’s immunity. However, the Court concluded that, whatever the jus cogens character of the violations committed by Nazi Germany, Germany’s immunity served as a procedural bar in the Italian courts, and Italy had thus violated Germany’s immunity by allowing the claims to go forward.

Taken as a whole, these cases demonstrate that the International Court continues to adhere to a restrictive vision of the international community. Without commenting on whether this is a ‘good’ or ‘bad’ development, it is an important point to make in the light of claims in scholarship that we ought to be assigning greater law-making power to judicial institutions, in particular with respect to the safeguarding of fundamental human rights. The Court’s reluctance may be due to institutional self-preservation, as its jurisdiction remains dependent on the consent of States; but equally so, the Court’s caution may be due to the difficulties and lack of agreement as to the consequences entailed by an embrace of a nebulous community interest that remains yet to be elucidated. In a decentralised, highly indeterminate legal order like international law, perhaps the unwillingness to assume a centralised interpretative role for itself is a statement more on the nature of international law than any value judgment on the concept of ‘community’.


Dr Gleider I Hernández is Lecturer in Law at the University of Durham, where is he is also Deputy Director of the new Institute for Global Policy. Previously, he served as law clerk to Judges Bruno Simma and Peter Tomka at the International Court of Justice; he holds law degrees from McGill, Leiden, and Oxford universities. His research interests extend to all areas of public international law, and he is especially interested in the nature and function of the international legal system. His first monograph, The International Court of Justice and the Judicial Function, will be published by the Oxford University Press in early 2014. He is the author of “A Reluctant Guardian: The International Court of Justice and the Concept of ‘International Community’” in the British Yearbook of International Law, available to read for free for a limited time.

Through a mixture of articles and extended book reviews it continues to provide up-to-date analysis on important developments in modern international law. It has established a reputation as showcase for the best in international legal scholarship and its articles continue to be cited for many years after publication. In addition, through its thorough coverage of decisions in UK courts and official government statements, The British Yearbook of International Law offers unique insight into the development of state practice in the United Kingdom.

Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw. – See more at:

The final judgement in the trial of Charles Taylor

By Simon Meisenberg

The trial of former Liberian President Charles Taylor moved the Special Court for Sierra Leone (SCSL) into the limelight of international criminal justice for the last half decade. Without any doubt, the presence of a former Head of State in the dock drew international attention to the smallest of the ad hoc international criminal courts. The Appeals Chamber of the Special Court for Sierra Leone (SCSL) has now announced that it will render the appeal judgment in the case of Charles Taylor on 26 September 2013 at 11.00 a.m. CET. Taylor, who is in his sixties, was found guilty by the trial panel and sentenced to 50 years of imprisonment. Given the importance of the Taylor case, the forthcoming issue of the Journal of International Criminal Justice contains a special symposium on the Taylor Trial Judgment and the future of the Residual Special Court. The symposium, edited by Laurel Baig and myself, features articles by Kai Ambos and Ousman Njikam on “Charles Taylor’s Criminal Responsibility,” Kevin Jon Heller on “The Taylor Sentencing Judgment,” Fidelma Donlon on the “Transition of Responsibilities from the Special Court to the Residual Special Court for Sierra Leone,” and Kirsten Keith on “Deconstructing Terrorism as a War Crime.”The Taylor trial is the first completed criminal appeals process judging a former Head of State in modern international criminal law. There has been much debate about whether the SCSL was truly the first international criminal tribunal to have tried a head of state, pointing to the conviction of Karl Dönitz at the International Military Tribunal in Nuremberg, who was the Head of State of the Nazi German Reich for about 20 days before Germany’s capitulation. But as the IMT did not have any appeal process, let’s simply give the credit to the SCSL of being the first ever to have accomplished such an historical task. The magnitude of this accomplishment is illustrated both by how long it has taken for the international community to fully try a former head of state and the practical challenges encountered by other courts, such as the incomplete Milosevic trial before the ICTY or the failure to arrest of Bashir for trial at the ICC. From a legal perspective, however, the SCSL should not be judged simply by such an historic achievement, but rather by the soundness of its legal and factual findings.  A daily news chalk board in Monrovia, Liberia. Photo by Lieutenant Colonel Terry VandenDolder, U.S. Africa Command. Public domain via Wikimedia Commons. The Achievements of the SCSL Looking back at the SCSL’s activities since mid-2002, when the first investigations started, it is obvious that bringing Charles Taylor to trial was not an easy task. The Court was plagued with challenges: financial constraints, challenging legal questions, the staggeringly slow pace of proceedings, lacking interest from the Sierra Leone population towards the end of the mandate, the precarious security situation in the first years of operations, the difficult relationship with the Truth and Reconciliation Commission. Then add further challenges unique to the Taylor proceedings such as the need to operate in three different countries and two different continents. These are only a few challenges amongst many more that endangered the success of this shoestring court. At the end of the day, SCSL has overcome these challenges to complete its mandate and contributed to Sierra Leone’s transition to peace and democracy. In retrospect, many of the problems encountered by the court now appear to be less acute in comparison to the other hybrid experiences in international criminal law. Initially the sponsors of the court wished the court to deliver justice within three years. In the end it took more than a decade to accomplish the mandate. The Taylor trial alone lasted over six years. In its eleven years of existence, the SCSL issued 13 indictments against members of all warring factions resulting in eight convictions (not counting the Taylor conviction at the trial level, which if upheld would be the ninth). Only one accused, Johnny Paul Koroma, was never arrested and is believed to be deceased. Two accused (Foday Sankoh and Sam Bockarie) died shortly after charges were laid against them. Sam Hinga Norman died shortly before his judgment day in the Civil Defence Forces trial. Apart from those main “atrocity” trials, twelve contempt proceedings were initiated by the Prosecution resulting in ten convictions (one contempt case is still pending on appeal; one resulted in an acquittal, which so far is the one and only acquittal issued by the SCSL). Following the Taylor Appeal Judgment, the SCSL will “transform” into the Residual Special Court for Sierra Leone (RSCSL) shortly after the completion of its mandate. According to the RSCSL statute this residual court will “continue the jurisdiction, functions, rights and obligations” of the SCSL. The developments leading to and the structure and work of this future organisation are explained in detail by Fidelma Donlon in the JICJ Symposium. The Taylor Case and the Appeals Judgment Taylor is accused of four charges of crimes against humanity (murder, rape, sexual slavery, other inhumane acts (i.e. mutilations), and enslavement), four charges of violations or Article 3 Common to the Geneva Conventions and of Additional Protocol II (acts of terrorism, murder, outrages upon personal dignity, cruel treatment, pillage) and for the conscription, enlistment or use of child soldiers. It is alleged that he committed those crimes on Sierra Leone soil from 30 November 1996 to 18 January 2002 remotely from Liberia. Taylor was found guilty on all 11 counts by the trial judges on 26 April 2012. Even though Taylor’s conviction at trial may not have surprised the casual observer, he was actually convicted for far less than was initially charged by the prosecution. The prosecution was of the view that Taylor acted in concert with the leaders of the rebel movements in Sierra Leone (i.e. the RUF and AFRC) and that he and his co-conspirators shared the intend to commit all the crimes perpetrated in the Sierra Leone civil war. The judges rejected this claim, finding that the prosecution failed to proof the allegation that Taylor forged an agreement with the Sierra Leone rebels to commit crimes against the Sierra Leone population. The Trial Chamber instead considered Taylor as an accessory and convicted him for aiding and abetting and planning crimes in a narrower time frame, i.e. from August 1997 to 18 January 2002. It found that Taylor aided and abetted by providing practical assistance, encouragement or moral support to the RUF in the commission of crimes during the course of their military operations in Sierra Leone. In that respect the Trial Chamber noted that “a common feature of all of the aforementioned forms of assistance is that they supported, sustained and enhanced the functioning of the RUF and its capacity to undertake military operations in the course of which crimes were committed” (Taylor Trial Judgment, para. 6936). It importantly and rather controversially held that the military operations of the RUF and RUF/AFRC were “inextricably linked to the commission of the crimes charged in the Indictment” (Taylor Trial Judgment, para. 6936). An individualized assessment of Taylor’s contribution to the specific crimes committed on Sierra Leone territory was therefore unnecessary. It was sufficient to simply proof that Taylor sustained the military operations of the rebels. As such military operations were, according to the Trial Chamber, “inextricably linked to the commission of the crimes” no proof to the substantial contribution to the individual crimes was any longer necessary. The Trial Chamber additionally found that Taylor devised a plan to attack major towns and the capital Freetown in late 1998 and early 1999 during which crimes were committed. Regarding his knowledge, the Trial Chamber found that Taylor was aware of the atrocities from at least the time when he assumed the presidency in Liberia in August 1997. Many of the defence challenges on appeal questioned the evaluation of evidence by the trial judges. The facts of the case, and of the civil war more generally, were unsurprisingly complex. The trial judgment had to rely extensively on hearsay and circumstantial evidence. Some of the more troubling approaches to fact finding by the SCSL Chambers have been highlighted by Nancy Combs in her seminal book on “Fact Finding without Facts” and much of the same judicial attitudes towards inconsistencies and contradictions can be found in the Taylor Trial Judgment. It will be interesting to see how the Appeals Chamber addresses such challenges or whether it will simply rely on the principle that a “margin of deference” will be given to the fact finding of the Trial Chamber. Apart from evidentiary questions one of the most controversial points on appeal will be the definition of aiding and abetting and whether this mode of attribution requires that the accused contributed with “specific direction” towards a crime. The Trial Chamber was of the opinion that the actus reus of aiding and abetting did not require such “specific direction”, relying on ICTY precedents in the Perišić Trial Judgment and Mrkšić Appeal Judgment. As other SCSL cases did in fact require such an element the rejection in the Taylor case is notable (RUF Trial Judgment, para. 277; CDF Trial Judgment, para. 229). In the Perišić Appeals Judgment, however, the ICTY Appeals Chamber controversially held that “specific direction” is a necessary element of aiding and abetting holding that:“[I]n most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators. In such circumstances, in order to enter a conviction for aiding and abetting, evidence establishing a direct link between the aid provided by an accused individual and the relevant crimes committed by principal perpetrators is necessary.”More importantly, the SCSL Appeals Chamber’s own jurisprudence on this point is remarkable. In the CDF case it relieved an accused from criminal responsibility for aiding and abetting for providing military equipment, which was later used in the commission of crimes. At the time of his contribution CDF fighters were notorious for committing crimes against civilians. The Appeals Chamber stated that “the provision of logistics is not sufficient to establish beyond reasonable doubt that [the accused Fofana] contributed as an aider and abetter to the commission of specific criminal acts in Bo District” (see CDF Appeals Judgment, para. 102). The similarities with the Taylor case are striking and it will be interesting to see whether the Appeals Chamber will apply the same standards to Taylor. In a critical analysis of the Trial Chamber’s legal findings, Kai Ambos and Ousman Njikam highlight some considerable deficiencies in the Taylor Trial Judgment, placing the judgment’s assessment within the broader international criminal law jurisprudence on individual criminal responsibility by addressing the effect of the recent Perišić Appeal Judgment. As mentioned above, the significance of the Taylor case is usually attributed to the fact that Taylor was indicted as the sitting Liberian head of state. The Appeals Chamber dismissed the legal questions surrounding any claims of immunity in 2004, before Taylor’s arrest and initial appearance in spring 2006 (when Taylor had already stepped down from his presidency). Any questions of immunity will therefore not feature in the forthcoming Appeal Judgment. His “special status” as a Head of State at a time when he allegedly contributed to the crimes in Sierra Leone was however considered as an aggravating circumstance in the sentencing judgment of the Trial Chamber. This “special status” and the extraterritoriality of Taylor’s acts trumped all mitigating circumstances. A detailed critique of the Sentencing Judgment by Kevin Jon Heller in the JICJ symposium points to some of the possible flaws of the 50 year sentence, in particular addressing the fact that Taylor was convicted as an accomplice and not as a principal. Comparing the sentence received by Taylor with other SCSL convicts, Heller concludes that the 50 years sentence may be disproportionate. The fact that the extraterritoriality of Taylor’s acts was considered as an aggravating circumstance is striking. Here the Chamber’s silence on the nature of the conflict in its verdict is notable. Other SCSL judgments found that despite the alleged assistance from Liberia, the nature was non-international in character. If this holding is correct, crimes committed in international armed conflicts would routinely deserve a higher penalty. The historical pronouncement of the Appeals Chamber Judgment will be accessible over live stream. Simon Meisenberg is a Legal Advisor, Extraordinary Chambers in the Courts of Cambodia (since 2011); former Senior Legal Officer (2009-2011) and Legal Officer (2005-2009) in the Special Court for Sierra Leone. Laurel Baig is the editor of the forthcoming symposium from Journal of International Criminal Justice entitled, Symposium: Last Judgment – The Taylor Trial Judgment and the Residual Future of the Special Court for Sierra Leone. This issue will be published online imminently, and all articles mentioned in the text of this blog post will be freely accessible for a limited time. The views expressed here are those of the author alone, and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia, or the United Nations in general. The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions. Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw. – See more at:

How can a human being disappear?

On the 30th of August the United Nations observes the International Day of the Victims of Enforced Disappearances. Emmanuel Decaux (President of the UN Committee on Enforced Disappearances) and Olivier de Frouville (Chair and Rapporteur of the Working Group on Enforced or Involuntary Disappearances (WGEID)) have taken the time to consider a few questions with us in recognition of this important observance day, which was established by the UNGA (resolution 65/209, para. 4).

Installation on the Disappeared on the day of the celebration of the 8th anniversary of the Peruvian Truth and Reconciliation Commission, Plaza San Martin, August 26th, 2011. Photo by Catherine Binet. Creative Commons License via The Advocacy Project Flickr.

Installation on the Disappeared on the day of the celebration of the 8th anniversary of the Peruvian Truth and Reconciliation Commission, Plaza San Martin, August 26th, 2011. Photo by Catherine Binet. Creative Commons License via The Advocacy Project Flickr.

How can a human being ‘disappear’? What does this term represent?

Emmanuel Decaux: There is a big difference between a “missing person” and an enforced disappearance, with a secret detention of a person and a denial of his whereabouts. The legal definition of enforced disappearance implies an imputability to the State, which can act directly by its agents (such as the police or armed forces), but also indirectly, by giving its authorization, support, or acquiescence to non-State actors (such as paramilitary groups or clandestine forces). When private actors are responsible and the State is not involved, neither directly nor indirectly, its duty is to find the disappeared person and to prosecute the perpetrators. However, in this case we are referring to a crime of “droit commun” (common law) and not a crime of the State. The Convention of 2006 takes a step further in calling on States to investigate acts committed by persons or groups of persons acting without its authorization, support, or acquiescence and to bring those responsible to justice. But the main responsibility is the responsibility of States, by action or by omission.

Olivier de Frouville: Enforced disappearance is a technique of terror. Victims of disappearances do not disappear willingly or by accident. They are the victims of a crime, consisting in the deprivation of their liberty, and the subsequent denial of that deprivation of liberty or the refusal to provide any information about the fate or the whereabouts of the disappeared person, thus placing this person outside the protection of the law. Enforced disappearances are part of counter-subversive strategies used by some intelligence services and security personnel, together with torture and summary executions. Typically, a number of persons are arrested, in an effort to obtain information and dismantle illegal groups or simply to terrorize the civilian population and obtain obedience.

Many people associate the term ‘disappeared’ (Desaparecidos) with the crimes carried out by Pinochet’s regime. Is this the origin of the term?

Emmanuel Decaux: The phenomenon was not new but its systematic use was a characteristic of military regimes in Latin America. They established between them a secret transborder cooperation with the Condor plan. It explains the concern of Latin American countries, with both a regional instrument and also a leading role in the UN system. But we have to say that every country ought to be concerned by enforced disappearance, not only due to military dictatorships or civil wars, but also in democracies, as we’ve seen in the reports of the APCE on the network of secret detentions of the CIA and the case law of the European Court on Human Rights. The legal nature of the Convention could be a motivation for all States to take preventive measures, looking to the future rather than only at the past, and to fully cooperate with others States in an international framework.

Olivier de Frouville: If you read the Nacht und Nebel Decree signed by Keitel in 1941, you will find an exact description of what enforced disappearances are. This is a codification of the practice, condemned as a crime against humanity and a crime of war by the International Military Tribunal in Nuremberg:

“The territories occupied by Germany were administered in violation of the laws of war. The evidence is quite overwhelming of a systematic rule of violence, brutality and terror. On 7 December 1941 Hitler issued the directive since known as the ‘Nacht und Nebel Erlass’ (Night and Fog Decree), under which persons who committed offenses against the Reich or the German forces in occupied territories, except where the death sentence was certain, were to be taken secretly to Germany and handed over to the SIPO and SD for trial or punishment in Germany. This decree was signed by the Defendant Keitel. After these civilians arrived in Germany, no word of them was permitted to reach the country from which they came, or their relatives; even in cases where they died awaiting trial, the families were not informed, the purpose being to create anxiety in the minds of the family of the arrested person.”

Hitler’s purpose in issuing this decree was stated by the Defendant Keitel in a covering letter, dated 12 December 1941:

“Efficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relatives of the criminal and the population do not know the fate of the criminal. The aim is achieved when the criminal is transferred to Germany.” (Nuremberg Judgement, IMT Serie, vol. I, 232-233)

Other interesting analysis of the NN Decree is included in the Justice Case (4 December 1947, TWC, vol. III, 1057-1058). The practice seems to have been revived during the colonial wars in an effort to find new techniques to dismantle illegal armed groups and their cells. It was then exported to Latin America, and then used extensively in the context of the Condor plan. Afterwards, it spread all over the world.

How can international law make a difference?

Emmanuel Decaux: The elements of the crime of enforced disappearance are already violations of international human rights law, as a breach of such basic rights as to the right to life, the prohibition of torture, the “right to recognition everywhere as a person before the law,” the due process of justice, etc. There is a strong case law of the Human Rights Committee and of regional Courts, such as the European Court of Human Rights or the Inter-American Court of Human Rights, in this field. But the “complex phenomenon” of enforced disappearance was not dealt as such in its systematic nature.

The new trend of international law is to stick to the core element and to create a new human right, the right to not being subjected to enforced disappearance and to organise the international cooperation in matters of prevention, protection, prosecution, and reparation. The first step was the creation of the WGEID in 1980 and the adoption of the Declaration on the protection of all persons from enforced disappearance by the GA in 1992. Another important step was the qualification of enforced disappearance as a crime against humanity by the Rome Statute. The latest development was the adoption in 2006 of a new treaty, the Convention on the protection of all persons from enforced disappearance, which entered into effect on 23 December 2010, after the twentieth ratification. As of today, there are 40 State Parties and the Committee on enforced disappearances (members were elected in May 2011) is fully functioning with 10 independent experts from all regions of the world.

The Convention is at the crossroads of international human rights law and of criminal law. As other treaty-bodies, its main functions are to examine the reports submitted by States parties on the implementation of the Convention and to consider individual communications. But it can also receive and consider urgent actions, undertake country visits, and bring reports of widespread or systematic practise of enforced disappearance to the attention of the UN General Assembly. The Convention qualifies enforced disappearance as a crime and requires States parties to adapt their domestic legislation in order to incriminate enforced disappearance as such, as an autonomous crime. Furthermore it underlines that the widespread or systematic practice of enforced disappearance qualifies as a “crime against humanity” according to the rules of international law. The Convention is also very important to prevent enforced disappearance, with legislative and administrative measures strengthening the rule of law, in order to forbid secret detention and to create accountability. Its last field is the rights of victims, taking into account vulnerable groups, such as children. All these legal obligations taken together constitute a strong framework to fight against impunity and to promote justice.

The Convention created an important momentum and the first goal is to trigger universal ratification and effective implementation. The Committee is the watchdog of the Convention but its broad mandate is to cooperate with other international bodies, such as the Human Rights Committee or the WGEID, and with the International Red Cross Committee (IRCC) and NGOs. The Committee has close links with the WGEID and the International Day is a special occasion for us to pay tribute to the victims and to the struggle of civil society across the world.

Olivier de Frouville: At the time when the Mothers of the Plaza de Mayo in Argentina were challenging the military dictatorship and calling the international community to help them in their quest for truth and justice, enforced disappearances were not well identified as such. Identifying the phenomenon and giving it a legal definition, as well as defining the legal obligations of States, was really the first essential and necessary step towards an effective action against this scourge. The WGEID played a major role to this regard, as it analysed the phenomenon on the basis of the communications and cases it received, and tried both to come up with a legal definition and with a satisfactory legal regime, dealing with all aspects of the problem.

Enforced disappearance is a complex crime and almost all fields of law are affected. It is important to create an autonomous crime of enforced disappearance in the penal code, to submit this crime to universal jurisdiction, but also to provide for integral reparation to the victims, as well as with a strong national mechanism aiming at clarifying the fate or the whereabouts of the victims. Civil status issues are also at stake, as the disappearance of persons leaves pending a whole range of matters, like marriage, inheritance, or guardianship. The disappearance and appropriation of children also create difficult problems. Identification of stolen children can lead to the restitution of their true identity, sometimes against their own will. In many cases, international cooperation is needed, due to the transnational nature of the practice. For instance, in the framework of Condor, citizens from Uruguay or Chile were abducted in Argentina through joint operations undertaken by the intelligence services of both countries, and then taken to Montevideo to be tortured and executed. Unfortunately, this pattern was used again in the context of post 9/11 “war on terror”: the “extraordinary renditions” program is strikingly similar to what happened in Latin America in the past.

What issues is the United Nations Working Group on Enforced and Involuntary Disappearances focused on currently?

Olivier de Frouville: The WGEID did a fantastic job in its first years. If you read the first reports, all the main issues are well-identified. During its 30 years of existence, the WGEID explored those issues on the basis of the communications, allegations, and testimonies it received from families of victims, NGOs, and States. It drafted a number of studies but also, from 1993, “general comments” aiming at interpreting the 1992 Declaration for the Protection of All Persons Against Enforced Disappearances. These general comments can be found on the WGEID’s website.

What we are doing now is revisiting a number of issues in the light of new facts and situations, but also in the light of the evolution of international law. For instance, the idea that there is a right to the truth of the families of the disappeared was asserted in the very first report of the WGEID in 1981. But now it has become an emerging right in international law and it applies not only to enforced disappearances but also to other serious human rights violations. There has been major developments in this field, which led us to adopt a General comment on this issue. Now, there are many new challenges arising and touching upon a broad range of issues. We have recently adopted two new General comments, one on Women facing enforced disappearances (as disappeared persons, as family members, and as being often at the forefront of the fight against enforced disappearances), and another on children (as disappeared and appropriated children, but also as family members). We dedicated our last annual report to new trends in the field of reparation. And we are currently starting a study on the consequences of enforced disappearances on economic, social and cultural rights. Other issues we would like to look at in the coming years are the use of forensic analysis (particularly DNA tests in the search of the disappeared), the prevention of enforced disappearances (particularly the role of habeas corpus), and enforced disappearances during armed conflicts. Strangely, international criminal law recognizes enforced disappearance as a crime against humanity, but not as a crime of war. Of course, we also continue to try to improve our methods of work. Our main task is to provide assistance to the families of the disappeared: we aim at being as efficient as possible in fulfilling this task.

What issues is the Committee on Enforced Disappearances (CED) focused on currently?

Emmanuel Decaux: The CED began its work two years ago with a broad mandate. First it had to adopt the rules of procedure and a lot of legal niceties (guidelines on submission of reports, individual communications, and urgent actions), with translation in an user-friendly manner, in order to liaise with civil society and other stakeholders.

Since its fourth session, the CED started to carry out constructive dialogues with State parties in the context of the consideration of their reports. The first reports to be considered were those of Uruguay and France. Argentina and Spain will follow in November. The remaining reports will be considered by the CED as they are submitted by the other States parties. Germany, the Netherlands, and Belgium have already submitted their reports and they are scheduled to be considered in 2014. The common methodology of consideration of reports includes the preparation of a list of issues followed by an interactive dialogue with the State party concerned and the issuance of concluding observations, containing recommendations on how to meet the obligations stemming from the Convention. This process is carried out with great openness and transparency, including by the acceptance of alternative reports from civil society actors. The examination of reports by the CED is public and webcasted. There is a lot to do in order to timely consider the reports of the 40 States Parties, but it is essential to have this sort of “check-up” within two years after the ratification by any state.

Our second task is to be ready to answer to the communications or information from NGOs dealing with specific issues, such as urgent actions and allegations of serious violations which could lead to a country visit. We have already dealt with some cases related to Mexico, for example, as indicated in our report to the GA. However, it is important to highlight that before conducting a country visit, the Committee endeavors to engage with the State party concerned. We need a greater awareness and on-ground advocacy from the civil society to trigger the mechanisms of the Convention.

The CED is eager to cooperate with States to obtain a full respect of their legal duties and to apply a convention which is victim-oriented. But the first step is accountability, with compliance by States parties with their conventional responsibility of submitting a report on the measures taken to give effect to their obligations under the Convention. We hope that the first steps taken by the CED in a very professional and dedicated manner, will encourage all UN Members States to ratify the Convention as soon as possible as a preventive tool, a sort of “life assurance”.

What do you hope to see in terms of truth, justice, and reparation to victims of enforced disappearances in the coming years?

Olivier de Frouville: Enforced disappearances are not a fatality. This is a technique of terror, which is being taught to intelligence and security officers and allowed to be used by governments in “exceptional circumstances” in a number of situations across the world. We need to make those people understand that, as the Declaration says, no circumstances whatsoever may justify enforced disappearances. Enforced disappearance is torture. It is now widely accepted that there is an absolute jus cogens prohibition of enforced disappearances and a correlative absolute right not to be subjected to enforced disappearances.

The consequence is that enforced disappearance is a serious crime in international law, with all the consequences flowing from it in terms of international responsibility of the State, but also in terms of international responsibility of individual perpetrators. States and individuals must be held accountable. This is the reason why we continue to insist that investigations are undertaken and that perpetrators are punished, but also that the State should take measures to provide for reparations to victims, not only through compensation, but also through rehabilitation and satisfaction. Acknowledgement of the responsibility of the State, rehabilitation of the memory of the disappeared is particularly important.

Huge challenges also remain ahead as far as the right to the truth is concerned. Finding the truth about the fate of disappeared persons implies exhumation and identification of sometimes thousands of victims. This is a very complicated long-term and costly task, especially for developing countries. We need to think more of how to help countries in transition and who are willing to undertake this task but who do not have financial means and technical capacities. What was done by the international community in Bosnia-Herzegovina may serve as example. Even though we are still far from the end of the road in this country, great progresses have been made and a methodology has been defined that could be replicated in other countries.

Finally, we are very much concerned by the situation of those who fight against enforced disappearances on the field: families of victims, sometimes very simple people, human rights defenders, NGOs. Almost every week we receive calls for urgent actions because these peoples are subjected to threats, intimidation, or reprisals. They work in difficult conditions; they are often accused of defending “criminals”. It is hard for a mother who asks for the truth about her son, who has been abducted by the police or the military in front of many witnesses, to be answered: “Your son is a criminal, he fled and is now fighting with the guerrillas.” The fact is that the criminals are those who abducted her son. Another problem we see, especially due to the current times of financial crisis, is that those courageous peoples who are mobilizing themselves against enforced disappearances in their countries are lacking funds. It is more and more difficult to find financial support for what is often perceived by donors as a “politicized” issue, whereas other issues may seem less problematic. This is an absolute shame. There is a responsibility of all donors to strongly support those courageous people who are only asking for justice, truth, and reparation and who are taking all the risks on behalf of all of us.

Emmanuel Decaux is professor of public international law at the University Paris II as well as director of the Center for Human rights and humanitarian law (CRDH). He published extensively on Human Rights International Law. Since 2002, he was member of the Sub-Commision on Human Rights and, subsequently, member of the HRC Advisory Committee. He was elected member of the Committee on enforced disappearances in 2011 and is currently serving as chairperson. Olivier de Frouville is a Professor of Public Law at the University of Paris 2 (Panthéon-Assas), ad interim Director of the Thucydide Center and Deputy Director the Center of Research on Human Rights and Humanitarian Law (CRDH). He is also a member of the Institut Universitaire de France (IUF).

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Why Edward Snowden never had a right to asylum

There is nothing that complicated about the Edward Snowden case, but it does involve several overlapping areas of law, international and domestic, and commentators seem to assume there is some sort of accepted hierarchy. The starting point is that he is accused of violating some US domestic criminal law by revealing the activities of the US security service’s surveillance operations as a consequence of prior employment for a contractor to the NSA. When his disclosures came to light, he was in the Hong Kong Special Administrative Region. It is at this point that the complexity of the overlapping legal regimes first generated confusion. The allegation of criminal activity prompted the United States to seek his extradition; Edward Snowden started to explore the possibility of seeking asylum to avoid prosecution in the United States. The processes were parallel, but distinct. The easiest aspect of the confusion to remedy is that relating to asylum. International law does not grant a right to asylum, but at best Article 14 of the Universal Declaration of Human Rights (UDHR) — not legally binding in and of itself — provides for a right to seek and enjoy asylum. Indeed, while much of the UDHR was incorporated in the legally binding International Covenants on Economic, Social and Cultural Rights, and Civil and Political Rights, Article 14 made it into neither, so only if it has achieved customary status can one find a binding obligation to allow him to even seek asylum. Asylum itself is in the grant of the state and depends on domestic laws and procedures. There are multiple extradition aspects to this case. First, extradition generally requires some form of agreement between the requesting and requested states, initially between the US and the HKSAR and now Russia. There is an extradition arrangement with HKSAR in force since 1998, but none with Russia. Moreover, if he were to be offered asylum, there would be nothing to stop the US filing a request with that state if there was some form of agreement between them. Extradition arrangements are specific to each agreement, but there are some generic concepts, such as extradition crimes, double criminality, and the political offence exception. In Edward Snowden’s case, those three elements raise some particular issues. It is beyond the scope of this piece to explore the domestic US law he might have violated, but the facts and offences would have to be criminalized under the law of the requested state as much as the US before extradition could be permitted. Moreover, extradition treaties generally exempt from surrender those accused of offences of a political character. Courts in different countries have interpreted the political offence in different ways, but it is never enough to have a political motivation. Further, while espionage (if that is indeed what Edward Snowden is alleged to have committed) may seem the archetypal political offence, it has received a mixed reception in the courts depending in part, according to some case law, on whether he might have gained any financial benefits. Finally, more modern extradition treaties often include human rights guarantees such that surrender cannot be granted to the requesting state, the US, if the alleged fugitive’s rights would be violated. While the extremes of the Bush regime’s activities in Guantànamo are not something Edward Snowden need fear, the requested state might feel the need to impose conditions on the type and maximum length of any prison sentence following a conviction. The United States does not allow individuals to petition for international review of its domestic decisions, so the onus is on the requested state to establish such protection in advance (see Judge v Canada). Extradition and deportation are two different processes, although both remove an individual from a state. In the latter case, however, the domestic immigration law simply requires a non-national to depart and there need be no required destination, except that only the state of nationality has an obligation to receive anyone in normal circumstances and Edward Snowden is still a US national. One area of law that does affect deportation is international refugee law under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. Refugees cannot be subjected to refoulement to the frontiers of a territory where their life or freedom would be threatened. However, to be a refugee, the applicant has to have a well-founded fear of persecution for one of five grounds, including political opinion, and Edward Snowden does not fear persecution, rather prosecution. The law itself is not persecutory and is not being applied only because he is in political disagreement with the surveillance procedures. Furthermore, Article 1F of the 1951 Convention excludes from refugee status those with respect to whom there are serious reasons for considering that they have committed a serious non-political crime, but that would just rehearse the earlier debates on political offences. Finally, one comes to the issue of asylum. Asylum is in the grant of the state. Ordinarily one seeks it on the territory of the relevant country, although states in Central and South America accept applications in their embassies. The Julian Assange case shows that Ecuador, at least, applies that outside the region. So far, Nicaragua, Venezuela, and Bolivia have offered Edward Snowden asylum if he can get there from Moscow. States are at liberty to let anyone they please in to their territory. It can be presumed that if they grant him asylum, they would not extradite him to the US if they received a request; all three states have extradition arrangements with the US. However, all three are democracies and a subsequent government may not feel obliged to respect that grant. Cesare Battisti had been given asylum in France, but when the Sarkozy regime threatened to send him back to Italy, he ended up fleeing to Brazil where his eventual protection depended on the President, not the courts.

Geoff Gilbert is a Professor and Head of School in the School of Law and Human Rights Centre at the University of Essex. He has been Editor-In-Chief of the International Journal of Refugee Law (Oxford University Press) since 2002. He was founding Director of Studies for the Thematic Refugees and Human Rights Course from 2005-2007 with the UNHCR; Director of the Organization for Security and Co-operation in Europe (OSCE) training program for judges on combating torture in Serbia and Montenegro; and Special Adviser to the Parliamentary Joint Committee on Human Rights on the ‘Treatment of Asylum Seekers, 2006-07’.

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The impact of imprisonment beyond the offender

Dr. Aisling Parkes & Dr. Fiona Donson

A shorter version of this article was published in the Irish Examiner, 9th July 2013

The release last month of the Law Reform Commission Report on Mandatory Sentences has provided an opportunity to reflect in an informed way on the approach taken in our jurisdiction to sentencing in the Irish criminal courts. In addition, the controversial sentencing judgment delivered by Mr Justice Sheehan in the case of a man convicted of raping his then 14 year old sister-in-law 27 years ago highlights the serious difficulties involved in balancing the range of competing rights and interests in the sentencing process. In particular, the often unseen tensions between victims and the family of offenders are laid bare providing an extremely challenging sentencing decision. Significantly such challenges are a common feature in cases where prison sentences are imposed, yet in the majority of cases in this jurisdiction they are rarely even acknowledged let alone considered explicitly by the sentencing judge.
Sentencing in Ireland has historically been regarded as being within the sole discretion of the court. Indeed to date, there has been considerable resistance by the judiciary to even the most modest of sentencing guidelines. However, this long established position is now under pressure as a variety of reports over the past decade have recommended the adoption of a more guided approach to sentencing. The Law Reform Commission Report on Mandatory Sentencing published last month notes generally that there is no agreement on the aims and principles framing our sentencing process and an “absence of anything remotely approximating to a consensus on who should be sent to prison and why they should be sent there.” Unsurprisingly, therefore the report recommends the development and implementation of appropriate sentencing guidelines.
Generally, when an offender is sentenced, a court can take a variety of matters into consideration. These will include the type of offence committed and any aggravating and mitigating factors. It may also have regard to the accused’s criminal record, the views of the victim, and wider social and policy issues. However, the extent to which incarceration will impact on the defendant’s family and in particular, their children, receives little attention beyond its possible inclusion as a mitigating factor. This is despite the fact that under Article 3 of the UN Convention on the Rights of the Child 1989, to which Ireland is a party since 1992, require that if a decision concerning the child’s primary caregiver is being taken by a court, the best interests of the child need to be balanced against any other relevant factors.
In recent years, the impact of a sentence on the children of an offender as a consideration to be included in the sentencing process has been recognised in a number of jurisdictions, for example in England and Wales. Perhaps the best-known example derives from the landmark decision of the South African Constitutional Court, S v M (2007). This case concerned the conviction of a single mother in whose case the court held that the best interests of children should be considered alongside other elements in the sentencing process. Albie Sachs J. noted the need for a “change in mindset” when dealing with cases where children are affected by the sentencing of a parent. This requires an acknowledgment that while a prison sentence is imposed as punishment for a crime, imprisonment has an impact beyond the offender. This does not mean parents are not sent to prison where such a sentence is appropriate, but rather that the full impact is understood and alternative punishments considered where the rights of children are engaged.
It would appear that the approach of Mr. Justice Sheehan in the Counihan case a few weeks ago included elements which are consistent with the approach adopted in South Africa, given the fact that the Judge took into consideration the hardship likely to be suffered by the defendant’s three children. Evidence of the negative impact of the offender’s imprisonment pending sentence on one of his autistic children was presented indicating the harm that an extended prison sentence would do to the family in the long term. The judge noted that despite the seriousness of the offences and the harm done to the victim, he ultimately concluded that imprisonment would “impose extreme hardship” on the offenders family “particularly on his partner and his son.”
However, it is clear the High Court considered the impact of the sentence on the offenders children as a mitigating factor, something “belonging to the offender”, whereas the S v M approach requires a balancing of competing interests including the best interests of any children to be affected by the imprisonment of a parent. This approach firstly requires that the court be appraised in each case before it of the potential impact of imprisonment on children and families, often termed a family impact statement. This factor must, however, be balanced – considering the impact of a prison sentence on the family of an offender does not mean that s/he should not be imprisoned where a prison sentence is ultimately the appropriate sanction for the crime committed. What it does mean is that on a systematic basis the sentencing court should (1) ascertain whether a convicted person is a primary caregiver, (2) if a custodial sentence is being considered the court should have regard to the possible impact it would have on the children, (3) if a custodial sentence is appropriate and the convicted person is a primary caregiver, the court must, in the words used in S v M “apply its mind to whether it is necessary to take steps to ensure that the children will be adequately cared for while the caregiver is incarcerated”, and (4) when deciding between a range of possible sentences, the court should be guided by the best interests of the child in deciding which sentence to impose.
The suspended sentence imposed by the court has been greeted, unsurprisingly, with shock by victims support groups. Their concerns reflect not only the significant harm sexual offences inflict on victims but also the on-going failure of the criminal justice system to adequately prosecute such offences. While the final decision in Counihan has left many questioning whether or not justice prevailed in that case, the decision making process engaged in by the Judge is one to be commended. However, the tension between victim and offenders families adversely affected by a sentencing decision can be difficult to resolve, particularly in a system like ours where there are few alternatives to prison, but it should not continue to be ignored as is the current practice. If, as the LRC recommends, clear sentencing guidance is adopted in our jurisdiction it should include a process whereby the impact of a sentence upon the children and families of offenders are taken into consideration on a systematic basis alongside the interests of the victim.

The Law Concerning Intervention in Syria

Approximately 80,000 people have been killed in what is now being referred to as the “Syrian Civil War”, about half of whom were citizens. The conflict, which escalated from peaceful demonstrations during the ‘Arab Spring’ movement over two years ago, has drawn much attention from the global media as the international community grapples with how best to respond to end the bloodshed, restore peace to the country and ensure a degree of stability in the wider region. In doing so, the conflict engages with the contours of international law and poses some difficult questions with regards to sovereignty, human rights and responsibility.

There is no question that the conflict is now a fully-fledged war, and the indeed the International Committee of the Red Cross declared that it believed the intensity and duration of the violence meant that it should be classified as a “non-international armed conflict” in July 2012. As such, the conflict is subject to international humanitarian law, specifically Common Article 3 of the four 1949 Geneva Conventions, which criminalises acts such as targeting civilians, “outrages upon personal dignity” and summary executions. Moreover, the landmark Tadic case at the International Criminal Tribunal for the former Yugoslavia declared that Additional Protocol II (APII) to the Geneva Conventions was part of customary international law, and therefore it would also apply to the war in Syria. APII expands upon Common Article 3 in both specificity and scope, dealing with issues such as prisoners of war, the forcible movement of civilians and protection for medical personnel.

Even if Syria was not in a state of war, restrictions on state action would still apply, through the vehicle of human rights law. Such an interpretation derives from Article 4 of the International Covenant on Civil and Political Rights which, while it permits derogations from the Covenant “[i]n time of public emergency”, does not allow derogation from the right to life and the right to freedom from torture among other rights. As such, the Syrian government does not have a free hand to quell the rebellion in whatever manner it sees fit. Additionally, it is believed the ICCPR would also apply to rebel groups in any area they control and thus act as the de facto government (see page 33 of this Human Rights Council report related to Libya for precedent in this regard).

In such a legal context (as well as the obvious moral context), the near-continual reporting of atrocities and human rights abuses from Syria is extremely worrying (there is an entire page on Wikipedia dedicated to “Human Rights Violations During the Syrian Civil War”). In November 2011, an Independent International Commission of Inquiry released a report detailing a series of crimes against humanity that had been committed up to that point, such as summary executions, arbitrary arrests, enforced disappearances and torture. Although acts by the government comprise the bulk of such crimes, UN High Commissioner of Human Rights Navi Pillay has notably pointed out that violations are being committed by both sides of the conflict. A prominent example of such crimes is the recent video that shows a well-known rebel commander cutting out and eating the heart of a government soldier, a crime regardless of what legal regime applies.

How can and should the international community respond to such grave breaches of international law and collective morality? Condemnations of the regime by the General Assembly and Human Rights Council have done little to stop the conflict or continuing atrocities. Syria is not a signatory to the Rome Statute, so the International Criminal Court cannot get involved without a Security Council referral. The Security Council is itself deadlocked on the issue, with three attempted resolutions of simple condemnation (never mind any action being proposed) being struck down by the double veto of Russia and China. The European Union imposed on arms embargo on Syria, which did little due to the regime’s ability to rely on Russia for such equipment (the most recent occurrence of which is anti-aircraft missiles designed to deter Western states from unilateral military action).

The core problem is that, short of Security Council action on the subject, there is very little that can legally be done against the Syrian regime. The ‘Responsibility to Protect’ (R2P) doctrine, which sought to prevent future Rwandas and Kosovos from occurring by creating a framework in which intervention could happen, is hamstrung by the requirement for Security Council authorisation that was added to the doctrine when ratified by the General Assembly in 2005 (the fallout from NATO’s mission in Libya in 2011 means R2P is not likely to be invoked by the Security Council any time soon). President Obama’s declaration that the use of chemical weapons was a ‘red line’ with regards to US action in Syria is not only legally dubious (though Syria is a signatory to the 1925 Geneva Protocol that bans chemical weapons in war, there is no means by which such a violation would permit intervention without involvement of the Security Council), but has proven itself little more than rhetoric in the two weeks since evidence of the use of such weapons emerged. The US and EU have declared a desire to arm the rebels, but such actions bring to mind the Nicaragua case in which the ICJ found that US support of the Contras in their rebellion against Daniel Ortega’s government was in violation of Nicaraguan sovereignty.

The only permissible use of force outside of Security Council authorisation in the UN Charter is Article 51, which permits collective or individual self-defence. Israel invoked this right when conducting an air raid on Damascus on 5 May, under the belief that their targets contained missiles bound for the militia Hezbollah in Lebanon. Such an attack brings to the fore questions about the boundaries of self-defence, specifically with regards to the distinction between imminence (permitted under the Caroline test) and pre-emption (outlawed). However, such an argument seems far more legally viable than proposals for NATO to intervene in Syria on the basis of defending Turkey. For such an argument to hold water, the Syrian conflict would need to escalate to the extent that it significantly threatened peace and stability in Turkey. There is no indication that this is happening.

Thousands of lives are threatened in Syria, and the hard-won stability in the Middle East is under serious threat. For such facts to reach the level of threatening “international peace and security”, however, requires Security Council recognition of such, which in turn requires consensus among the Permanent 5. There is no indication that this is likely, and so once again Western states may feel the need to violate international law in order to uphold ‘higher’ values.


Sean Butler

Irish Research Council Government of Ireland Scholar

Faculty of Law

University College Cork

Dr. Ruth Fletcher’s submission to the Health Committee on the General Scheme of the Protection of Life during Pregnancy Bill, 2013.

We are pleased to welcome this cross-post from the Human Rights in Ireland blog of Dr. Ruth Fletcher’s submission to the Health Committee on the General Scheme of the Protection of Life during Pregnancy Bill, 2013. Ruth is Senior Lecturer in Law and Director of the Centre for Law, Ethics and Society at Keele University. She spoke at the final day of the Committee’s hearings on the government’s proposed abortion legislation. Ruth also presented at the CCJHR Reforming Abortion Law: Comparative Perspectives conference at UCC in March 2013.



The proposed legislation is welcome for its recognition of a public obligation to implement an existing constitutional right to life-saving abortion.  The state is under a duty to enforce existing constitutional rights, and failure to act is a clear breach of that duty.  The movement away from absolutist protection of foetal life is welcome in a context which requires the balancing of public interests in protecting foetal life and in protecting women’s lives.  But the proposed legislation does not do enough to address certain material considerations for this legal balancing act.  I will focus this submission on 4 key points in relation to the definition of the unborn, the significance of risks justifying a termination of pregnancy, the limits on the right to conscientious objection, and the inappropriateness of criminalization.

Unborn – Head 1

Head 1 suggests that the unborn shall be defined to mean “following implantation until such time as it has completely proceeded in a living state from the body of the woman”.  The reference to implantation as the beginning point for defining unborn life is justified by reference to the Supreme Court decision in Roche v Roche, which addressed whether stored embryos were unborns for the purposes of Article 40 3 3.  With respect, the legal and ethical arguments for choosing the point of implantation as the significant moment for legal protection have not been adequately addressed.  Given past failures to interrogate the assumed wrongness of abortion and given the particular factual context of Roche v Roche, it is open to the Legislature to consider more fully the criteria by which the ‘unborn’ should be defined in this legislation.

There are strong ethical arguments for choosing sentience as an alternative rationale for the protection of unborn life (Steinbock, 2011).  Sentience is the capacity to feel pain or pleasure and is regarded by many moral theorists as the characteristic of living things which imposes obligations on others.  Trees may be living things which are biologically valuable, but they do not have the capacity to be harmed in the same way that sentient beings do and so are not owed harm-reducing duties.  A recent review of the evidence on foetal awareness by the Royal College of Obstetricians and Gynaecologists (2010) came to the view that 24 weeks gestation was the earliest moment at which sentience was possible, and that the foetus may not be sentient or aware at all during pregnancy given the effect of the uterine environment.  If protection of the unborn is about the protection of human life then sentience is arguably the best candidate for the key feature of human life that make it intrinsically worthy of legal protection.

Obviously there are candidates for justifying the protection of unborn life before sentience, the main contenders being the biological or human species argument, and future/potential personhood argument.   But these are not strong enough to justify the kind of full legal recognition which the legislation assumes.  One version of the human species argument would protect unborn human life from conception, because it is precious as God-given life.  While individual people should be free to let this view inform their moral decisions, it cannot be a view which informs the law in a pluralist society of many faiths and none.  Another version of the human species argument is the biological individuation view, that there is something precious about the embryo as an individual member of the human species.  The problem with this position is that it does not tell us what it is about the human species that makes harm to a human wrong.  If another species has capacities to think, to feel, to act, or to live, is it unworthy of protection because it is not human?

Probably the best argument for legal recognition of the ‘unborn’ from its earliest stages is that it will, subject to assistance from the pregnant woman, become a person in the future.  If this is accepted as the justification for the reference to implantation, it should be noted that this does not apply to fetuses with lethal genetic abnormalities.  They do not have a future as persons, and so should be excluded from the legal definition of ‘unborn’ in the legislation.     A second important aspect of this argument is that it rests on the potential to become a person, not on actual personhood.  Potential personhood is arguably best regarded as giving the unborn some moral value because of what it will become in the future.  This potentiality may be ethically significant, but it is not the same as the moral status that comes from the actual ability to feel pain or pleasure.  Nor is it the same as the higher moral status which comes with personhood and the capacities for rationality and communication.   As Thomson (1971) has argued the person’s interest in bodily and moral integrity may justify limitations on our duties to sentient beings.  This is because part of what makes life valuable is the person’s ability to reflect on her life over time and make her own moral choices.

Conclusion: The following categories provide a better ethical rationale for the protection of unborn human life than the assumed significance of implantation.

  • Pre-sentient foetal life has moral value rather      than moral status.  It should be taken into account in moral decision-making,      but it does not impose harm-reducing duties on others.
  • Sentient foetal life has moral status and may      impose a duty not to be harmed on others.
  • Self-aware personhood is a higher moral status      than sentient life and may limit the duties owed to sentient life in      important ways.

Recommendation 1:

The unborn should be defined to mean “the foetus following the earliest moment at which sentience is possible”

Recommendation 2:

The unborn should be defined not to mean those foetuses which have lethal abnormalities and will not have a future independent life.

Risk of loss of life justifying a termination of pregnancy – Heads 2-4

Heads 2-4 provide for the kinds of risk to a woman’s life which will legally justify a termination of pregnancy. Here I would like to focus on the narrowness of the risk to life ground for abortion.  This ground has been drawn very narrowly in part because it has been assumed that Article 40 3 3 requires the life of the pregnant woman to be treated the same as the life of the embryo or foetus

As Irish equality scholars, Baker, Lynch, Cantillon and Walsh have argued, equality does not mean sameness. Rather treating entities equally requires the accommodation of their material and vital differences.   Even if one accepts the contested view that the foetus ought to be legally protected as if it was a person with rights and responsibilities, that in itself does not determine how a conflict between the life of the foetus and life of the pregnant woman should be resolved.  Vindicating the life of the unborn with due regard to the equal right to life of the mother should entail a full evaluation of scope of the unborn’s interests vis a vis those of the pregnant woman.  To state the issue concisely, women are conscious, sentient beings with moral views and responsibilities to others, when foetues are not.  Foetuses have value as bearers of biological life and as future persons, but this is not the same kind of value as that of a breathing, feeling, thinking woman.   The current legal test treats women and fetuses as if they are the same, and in doing so, it devalues the significance of each form of life.

Recommendation 3:

The legal test should be:“It is not an offence to carry out a medical procedure when there there is a real and substantial threat to the life of the woman, including to her life interests in mental and bodily integrity.”

If the Oireachtas is not willing to adopt this recommendation, the minimum alternative is to remove the discriminatory distinction between the evidence requirements for a risk to life from a threat of self-destruction and a risk to life from a threat of physical illness.  This distinction is based on a particularly problematic view of women as morally untrustworthy, and does not address adequately the duty not to harm women’s lives.

Conscientious objection – Head 12

In principle the inclusion of a conscientious objection clause is defensible, subject to 2 conditions.  It must be applied to individuals rather than organisations and only in circumstances where alternative provision is readily available.  If respecting human life includes respecting the personal choices which give life meaning (Dworkin, 1992), then healthcare practitioners may avoid performing healthcare which infringes their moral values.  This is an interest which inheres in the individual as the moral agent of her own life, not in an institution such as a hospital which has a corporate personality.  As the Explanatory Notes acknowledge, conscientious objection is not an absolute interest, and is limited by the need to prevent harm to others, pregnant women in this instance.  Moreover, healthcare practitioners have a duty of care to pregnant women, which includes promotion of their health and well-being.  Conscientious objection to the provision of healthcare is only defensible therefore in circumstances where it would not entail damage to women’s interests in health and well-being.  Delays in accessing healthcare could damage women’s health and well-being because a woman is left living with the physical and mental stresses of unwanted pregnancy for longer, and because later terminations are riskier than earlier ones.  In circumstances where a healthcare practitioner cannot arrange alternative provision without undue delay, their right to conscientious objection may be limited by the duty to prevent harm and promote health and well-being.  In practice therefore, the wording of Head 12 does not give enough weight to the harm-reducing limits on the right to conscientious objection.

Secondly, the phrase “as per current medical ethics” should be removed.  Medical ethics usually refers to philosophical inquiry into the ethically right courses of action in medicine.  There is usually a range of ethically defensible courses of action in a given area of medicine and so a reference to ‘medical ethics’ in this sense raises more questions than it solves.  If  “current medical ethics” is meant to refer to the current ethical guidelines adopted by the Medical Council, then this should not be included in a statutory provision.  It is unnecessary, and may cause confusion about the relevant legal standard should the Council Guidelines change.

Further, I would ask the Committee to note that this recognition of healthcare practitioners’ consciences is inconsistent with the lack of legal recognition to date of pregnant women’s consciences.  If conscientious objection to the provision of abortion is legally acceptable then so is a ‘conscientious objection’ to the sustenance of an embryo/foetus within one’s body.  If a woman’s conscience tells her that terminating a pregnancy is the best moral resolution of the various issues which may arise in a given pregnancy, then that conscience also deserves respect and legal accommodation.

Offence – Head 19

The criminalisation of women’s decisions to end their pregnancies is a disproportionate and unfair response to the constitutional direction to vindicate the life of the unborn as far as practicable.  Criminalisation does not achieve the objective of protecting foetal life and it makes the mental and physical experience of unwanted pregnancy worse. The Legislature has other options under Article 40 3 3 and it does not, as the Explanatory Notes suggest, have to criminalise those abortions which fall outside the tests in Heads 2-4.  The Legislature could regulate the terms under which women access abortion in the Irish health service without punishing those women who fall outside those terms.  It could vindicate unborn life by investing in pregnancy-related care and research into miscarriage.  In choosing to punish women rather than to adopt more neutral or positive measures for the support of foetal life in pregnancy, the Legislature would be acting unfairly.  Head 19 is unfair because it asks women, rather than the state, to bear the weight of the public duty to vindicate foetal life.

Recommendation 4(a):

Repeal sections 58 and 59 of the Offences Against the Person Act 1861, without providing for a new offence.

Recommendation 4(b) (as an alternative to 4(a)):

If the Legislature is not willing to take the route of decriminalisation, it should at minimum define the offence so that it excludes attempts to end a pregnancy.  The phrase “[A]ny act with the intent to destroy unborn human life” is too broad and may include those acts which are ultimately unsuccessful in destroying unborn human life.  Secondly, the maximum penalty for the offence should be reduced significantly from 14 years.  This penalty is disproportionate in punishing a decision which implements the defensible moral choices of women and their healthcare providers.