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Irish Left Review
Joined up thinking for the Irish Left

offsite link Cameron?s Swarm is Europe?s Solution Mon Aug 24, 2015 12:56 | Michael Taft

offsite link Who Was Right? The Magic Trick of Austerity Tue Aug 18, 2015 13:28 | Michael Burke

offsite link Housing Policy is More Than Pulling Levers Tue Aug 18, 2015 12:06 | Eoin O'Mahony

offsite link Return: A Palestinian Memoir Mon Aug 17, 2015 23:01 | Seán Sheehan

offsite link August Socialist Voice is Out Now! Mon Aug 17, 2015 22:27 | Communist Party of Ireland

Irish Left Review >>

Spirit of Contradiction

offsite link Syriza and Israel: Syriza’s response Thu Aug 20, 2015 18:10 | yeksmesh

offsite link What does a Corbyn victory mean? Tue Aug 18, 2015 00:32 | Sami El-Sayed

offsite link SYRIZA: Was capitulation inevitable? Fri Jul 17, 2015 14:14 | Sami El-Sayed

offsite link The four contradictions of liberalism Fri Jul 17, 2015 13:52 | yeksmesh

offsite link Between Ideology and Public Discourse Tue Jul 14, 2015 15:07 | Gavin Mendel-Gleason

Spirit of Contradiction >>

Public Inquiry
Interested in maladministration. Estd. 2005

offsite link Politicians feeding off the victims of corruption

offsite link Malaysia/Ireland: Different responses to corruption Anthony

offsite link Atheism; the most evil ideology ever, ever? Anthony

offsite link Irish Times: Living on planet Irish Water Anthony

offsite link Shock news: Sinn Fein/IRA admits Twin Towers attack Anthony

Public Inquiry >>

The Saker
A bird's eye view of the vineyard

offsite link THIS BLOG HAS MOVED TO A NEW LOCATION VINEYARDSAKER:

offsite link Good news out of Russia - even the "non-system" opposition refuses to blame the Kremlin VINEYARDSAKER:

offsite link Nemtsov murder: Putin warned about exactly this type of "false flag" two years ago VINEYARDSAKER:

offsite link DPR PM Zakharchenko presser 27/02/15 Economical and political future of DPR VINEYARDSAKER:

offsite link Breaking news: FALSE FLAG IN MOSCOW! VINEYARDSAKER:

The Saker >>

Darren O'Donovan - Wed Sep 02, 2015 12:23
The interim report of the Fennelley Commission of Inquiry, published yesterday, provides extraordinary insights into public administration in Ireland, raising critical issues of transparency, accountability and the division of labour between politicians and civil servants. While other contributors on HRinI such as Dr Conway are expert on policing specifically, I?m going to focus here on(...)

Houses of OireachtasThe interim report of the Fennelley Commission of Inquiry, published yesterday, provides extraordinary insights into public administration in Ireland, raising critical issues of transparency, accountability and the division of labour between politicians and civil servants. While other contributors on HRinI such as Dr Conway are expert on policing specifically, I?m going to focus here on what the report tells us about oversight and good government generally.

An Extraordinary Indictment of the State of Irish Governance

In understanding the character, scale and gravity of yesterday?s findings, we should start at the beginning ? the task which the current government entrusted Mr Justice Fennelly with. The terms of reference for a Commission are created by the executive, not the parliament, something Dr Fiona Donson and I have previously criticised. In this case, the terms of reference were exceedingly bare in terms of yardsticks for evaluating the conduct to be investigated, with the Commission told to:

(n) investigate and report on the furnishing to the Minister [for Justice and Equality] of a letter [from the Commissioner to the Secretary General of the Department of Justice]

(o) investigate and report on the sequence of events leading up to the retirement of the former Garda Commissioner, Mr Martin Callinan, on 25 March 2014.

This is not an express mandate to engage in reasoning around good government or competence. Nevertheless, in relation the first of these, Justice Fennelly thankfully noted that he could not simply ?report solely on the physical process? of the sharing of the letter, but would need to go further to address in some way underlying public concerns. The analysis provided was limited; pinned largely around evaluating the consistency of participants? actions with legislation and standard practice around reporting. In relation to the second task, it is clear that reporting “on a sequence of events?, is primarily generating a factual ?tick tock?, and it is therefore legally unsurprising that Justice Fennelly did not go to directly adjudicate issues being raised by commentators today drawing on ideas such as undue influence or maladministration. But the Report has given us all the building blocks needed for this essential debate.

Crucially, then, given the nature of its terms of reference, this is not a report that could possibly ?draw a line under? the episode. Now Justice Fennelly has given us (as far as possible) the facts, it falls to the public, parliament and civil society to ensure the actions outlined are assessed against the standards of responsible government and maladministration. The fact that the Commission report felt that, in the process of finding facts, it had to condemn the actions and practices I will now discuss underlines the extremely concerning nature of many of the issues uncovered.

Defeating Oversight: Record Keeping and the No ?minutes? Policy

The Report provides a direct statement of the policy in relation to record keeping in government departments:

From the evidence heard by the Commission, it is clear that it has been a matter of public policy, for many years that minutes are no longer kept of discussions at Government meetings. An account of the proceedings at a meeting can be discovered, if at all, from a reading of the terms of any decision made. In the present case, although a decision was, in fact, made at the meeting of 24th March 2014, no record at all was made of what was decided. It is no part of the function of this Commission to pass judgment on the merits or otherwise of this policy. Attention is drawn to it, insofar as it inhibits the Commission in performing the task assigned to it by the Government of investigating and reporting on what occurred at an important meeting.?

Readers will note the restraints which are operating on the Commission in the above passage: it cannot criticise the policy due to its government designed terms of reference.

I?m utterly exasperated at the mindset manifest in the policy, especially considering I was recently lecturing my Australian students on the utterly contrasting approach in the Australian Public Service Values and Code of Conduct in Practice. This provides that it is important to record and maintain in an accessible form ?significant events, including meetings and discussions with?stakeholders?which may be significant in terms of policy or programme decision making?. Good record keeping is part of good governance:

All significant decisions or actions need to be documented to a standard that would withstand independent scrutiny. Proper recordkeeping allows others to understand the reasons why a decision was made or an action taken and can guide future decision makers…. [my emphasis]

This continued pattern of record keeping lights up the rhetoric of all the sturm und drang about a new era of oversight, the grandiose claims around the parliamentary inquiries referendum. For these systems of oversight need a record to trace, but here the Commission ? an independent statutory body? found itself with a withered evidence base. Small wonder that the Commission was forced into saying that it was ?beyond argument that good administration would require a proper record be kept? of the decision to send Mr Purcell to visit the Commissioner’s home:

It is on this crucial point that it is most unfortunate and, indeed, extraordinary that there is no note or record, of any sort, to resolve the matter. The Taoiseach, the head of the Government, instructed the Secretary General of the Department of Justice to deliver a message about a matter considered to be of the utmost national gravity to the head of the national police force, the Commissioner of An Garda Siochana. Yet there is not available to the Government, in any of its aspects, to this Commission or to the public any written record to verify the nature of that mission. This Commission is, of course, powerless in the matter. It is left in the position of having to reconcile conflicting sworn evidence from responsible ministers and officials at the highest level in the State. It can only register its astonishment at a system of administration which apparently quite deliberately adopts a practice of not keeping any record of a meeting where an important decision is made.?

Once again an integrity institution is stuck in the school playground scenario of he said she said, and a former judge, like in the tribunals before, has been forced to adjudicate on competing accounts. Lawyers are often blamed for the length of the tribunals and related litigation, but we must look at what it would take to penetrate a culture of limited record keeping. We hear all the time the media rush to say ?there are no silver bullets? or bemoan the technicality of reports, without appreciating how difficult it is to find them or write them in the Irish context. This ?policy? culture is not solely a matter for the civil service, as under the Public Management Act, Government bears ultimate responsibility.

All of this makes one think of the banking inquiries, both our ongoing parliamentary one and the Commission of Peter Nyberg. Mr Nyberg of course was criticised for his decision to conduct his commission entirely in private, and to not engage in the attribution of individual blame. Perhaps Mr Nyberg, by taking the position that the only way to get to the truth was to not name names, avoid apportioning blame and keep it all private has been proved a perceptive judge of our underlying governmental culture. Why can’t we grasp the fundamental principle: department records exist not only to support the making decisions, but to facilitate independent scrutiny of those decisions.

Briefing

The author?s blood pressure was also not helped by reading that a major conclusion of the Report was that there was inadequate briefing of Ministers by civil servants. This has been a conclusion of so many landmark reports in the history of this State, so its presence should underline the complete complacency which has marked response to previous reports. Will it be different this time?

This was the central conclusion of the famous DIRT inquiry where it was held that while Ministers were somewhat aware of large scale tax evasion, no formal briefing occurred regarding the need to enforce the law on investors. In the illegal nursing home charges inquiry, it was again found briefings were not provided to Minister and if they were, the information was not fully grasped and/or acted upon. Of course, we heard how we would have change (including from members of the current opposition). Well plus ça change, plus cest la meme chose.

Of course, the knock on impact of a lack of written records and formal briefings is to reinforce the frailities of what is ultimately a human system. A small country is going to have a smaller decision making tree, but some of the reporting and oversight systems are terrifyingly brittle. So brittle we can’t get the facts of what happened, without a former Supreme Court judge writing a 300 page report. I don?t have space here to parse the events which surround the fate of the Commissioner?s 2013 diary or mobile phone sim. Beyond the individual, the fact that these events happen underlines a fundamental lack of institutional engagement with applicable regulations or principles of good administration. It’s  the mark of our insular administrative culture which led the OECD to describe the interrelationship between government and administrators as ?most similar to the village life type model?.

The Visit to the Commissioner: The Relationship of Civil Servants and Ministers

It is clear that the Secretary General of the Justice Department was concerned by the request to visit the Commissioner?s home. Indeed he directly states that he felt it was ?wrong?. He told the Commissioner directly that he did not understand the reason he was at his home, rather than calling him.

The interaction between Mr Purcell and the Taoiseach embodies something which has haunted Irish public administration: what is the appropriate division of labour between Ministers and civil servants? The Public Management Act 1997, section 4(1) bestows ?the authority, responsibility and accountability? over administrative tasks upon the principal civil servant. The Minister enjoys the sole right to determine ?policy?, and also enjoys the right to give directions in relation to any administrative task (apart from human resources or staff allocation). Neither ?administration? or ?policy? are defined, despite them being the bedrock of responsibility and accountability. Past Members of this Government have previously acknowledged this very issue, with Pat Rabitte having stated:

As a Minister, I value the relationship between the civil service and the minister. This key relationship is built largely on trust but it is also by its nature ambiguous and lacking in clarity as to the specific roles of the players. Ambiguity is defended on the basis that it supports a flexible and collaborative public service, where the elasticity of individual roles allows for a quick response to changing demands. But ambiguity also allows for vagueness as to who is responsible for what and to whom they are accountable

The interaction in that meeting room is not the equivalent to some corporate boardroom, the relationship between the government and the civil service is simply not that of manager to an underling. It is shaped by law: public norms and expectations which we can and should change. This Government initially supported legislation in this area, but has not passed it. The Commission found that ?Mr Purcell received no clear instructions on the detail of the message that he was to convey to the Garda Commissioner? (pg 261). That a civil servant carried out what the Commission found to be ?event without precedent? upon such incomplete instructions, underlines the need for clearer and higher standards.

?No matter who you vote for, the government always gets in?

Though I?m a recent emigrant, during my regular visits home, I do see evidence of the view embodied in the above quote in my friends and family. I do want to stress that there are many ideas and cures out there. The Fennelly Report perhaps reminds us that we have struck at the low hanging fruit, expending energy on Constitutional Conventions and the like, but change is a lot more everyday and shaped by sustained engagement rather than big bang moments.

I am already beginning to fear that this report may not be perceived as the landmark document it is. Perhaps it would have been better if the Commission consisted not merely of Justice Fennelly but also an eminent (perhaps foreign) public administrator or ombudsman of high standing? While yesterday?s report is a forensic work underlining what top lawyers bring to any investigation, there are moments where, if it was armed with broader terms of reference featuring criteria such as competence and responsible government, even more significant findings could have been made. There is a danger that, without direct findings regarding incompetence and recommendations on improving standards in public life, this report could lead to nothing. Of course, governments (and parliaments) continue to control the terms of reference, and we have to see the debate about the wording of these terms of reference as just as important as the moment when the report gets published.

I have no party political affiliations, and I would encourage readers to be intensely suspicious of the party political brawl in the coming days. History tells us that accountability reforms have many active parents in opposition, only to be left as orphans by entry into government. This must be a conversation not only about the government of the day, but the government of every day.

admin - Mon Aug 31, 2015 10:34
The Centre for Criminal Justice and Human Rights (School of Law, UCC) invites you to a lecture on ?Securing Justice in an Unjust World? to be delivered by Baroness Helena Kennedy QC Principal, Mansfield College, University of Oxford Venue: Aula Maxima, University College Cork Thursday September 10th, 2015 6pm to 7.30pm Chair: President Seán Ryan,(...)

HK CCJHRThe Centre for Criminal Justice and Human Rights (School of Law, UCC) invites you to a lecture on ?Securing Justice in an Unjust World? to be delivered by Baroness Helena Kennedy QC Principal, Mansfield College, University of Oxford

Venue: Aula Maxima, University College Cork
Thursday September 10th, 2015
6pm to 7.30pm

Chair: President Seán Ryan, Court of Appeal 

Continuing Professional Development 1.5 hours General CPD ? Group Study

Further information on the event is available here. You can register for this event here.

For queries please contact Noreen Delea, Centre of Criminal Justice and Human Rights, School of Law, UCC.  (021) 4903220, email: n.delea@ucc.ie

admin - Wed Aug 19, 2015 14:20
On Friday 9th and Saturday 10th October, UCD Sutherland School of Law hosts the 18th UCD Irish European Law Forum, titled Europe?s Shared Burden: Collective Responsibility for Migrants at Sea. With keynote addresses from from both Peter Sutherland, UN Special Representative (SRSG) for International Migration and Guy S. Goodwin-Gill, Professor of International Refugee Law, University of Oxford (TBC),(...)

UCDOn Friday 9th and Saturday 10th October, UCD Sutherland School of Law hosts the 18th UCD Irish European Law Forum, titled Europe?s Shared Burden: Collective Responsibility for Migrants at SeaWith keynote addresses from from both Peter Sutherland, UN Special Representative (SRSG) for International Migration and Guy S. Goodwin-Gill, Professor of International Refugee Law, University of Oxford (TBC), the conference explores the legal, political, social and moral humanitarian catastrophe being witnessed in the Mediterranean region at present.

Registration for the conference is now open and delegates are invited to register as soon as possible. You can register for this important international conference here.

As well as keynote addresses, the two day event (provisional programme here) will also explore the challenges faced by migrants and asylum seekers arriving on European shores, with a core focus on responsibility for protection that emerges. 

Claims of moral, legal and political responsibility feature heavily in discourse on the phenomenon of irregular migration by sea (or ?boat migration?). This is understandable given the growing humanitarian catastrophe being witnessed in the Mediterranean region at present. In fact, the International Organization for Migration (IOM) has predicted that in the Mediterranean the death toll from irregular migration could be as high as 30,000 in 2015 alone. The question of European states? willingness to share in the burden of saving lives at sea has come into sharp focus in the aftermath of the EU?s decision in 2014 to cancel the Mare Nostrum rescue programme, and instead impose the more tightly circumscribed Triton security operation. With the unprecedented number of deaths at sea in recent months there seems to be growing acknowledgement in principle that responsibility for the fate of migrants is, or should be, shared amongst states and institutions at the European level. However, there has been little systematic study of what this shared or collective responsibility actually entails in terms of specific duties and responsibilities. It is clear that existing policy and legal responses are failing, particularly given the rather fragmented and uncertain legal framework (engaging rules of the international law of the sea, refugee and migration law, EU law and international and European human rights law), not to mention inadequate financing, coordination and political will in policy response. Despite recent momentum leading to increased resources, new operational initiatives and reconsideration of refugee resettlement frameworks, there remains a concern that this has been a rather piecemeal, inadequate and uneven response, particularly geared towards border management and security imperatives, rather than consideration of root causes and humanitarian objectives.

Liam Thornton - Tue Aug 04, 2015 16:29
Commissioned by the Law Society of Ireland and the Dublin Solicitors Bar Association, Dr Suzanne Kingston and I were responsible for co-authoring a report on European rights in Irish courts. We examined Irish case law where the ECHR Act 2003 and/or the European Convention on Human Rights (ECHR) and/or the European Union Charter of Fundamental(...)

Screenshot_2015-07-30-21-20-54Commissioned by the Law Society of Ireland and the Dublin Solicitors Bar Association, Dr Suzanne Kingston and I were responsible for co-authoring a report on European rights in Irish courts. We examined Irish case law where the ECHR Act 2003 and/or the European Convention on Human Rights (ECHR) and/or the European Union Charter of Fundamental Rights (EUCFR) had been pleaded. You can access a full hyperlinked casebook summary of all ECHR and EUCFR related case law from the superior courts, published District Court decisions and select tribunals from 2003 to 2014 here.

At the core of the report, we explore the degree of engagement of practitioners and the judiciary with concepts of European rights, and arguments that have succeeded or failed in making an impact on Irish law and policy.

You can access the full report here.

This report contains eight chapters that we hope will be of use to legal practitioners, judges and other decision makers, academics and students. The following is the Chapter breakdown for the report (from pp 11-12 of the Report):

Chapter 1 provides an overview of the level of engagement with European (Convention/ECHR Act 2003 and Charter) rights by the Irish Superior Courts, District Court and relevant tribunals between 2004 and 2014, and considers the role of the Irish Human Rights and Equality Commission in this regard.

Chapter 2 provides an overview of core provisions of the Convention and ECHR Act 2003, the role of the European Court of Human Rights (ECtHR) in developing standards of interpretation, and Ireland?s record before the ECtHR.

Chapter 3 explores horizontal issues relating to some common themes that cut across a number of significant areas of Convention-related jurisprudence, including the relationship of the Convention, ECHR Act 2003 and the Constitution, interpretative obligations under the ECHR Act 2003, retrospectivity, declarations of incompatibility and damages and other remedies under the ECHR Act 2003.

Chapter 4 engages in a sectoral review of some key legal areas where the Irish Superior Courts, the District Court and quasi-judicial bodies/tribunals have engaged with rights protected under the Convention and ECHR Act 2003. There is a particular focus on mental health law, asylum and immigration law, criminal law including the European Arrest Warrant, family and child law, and social rights and employment rights.

Chapter 5 provides a background to the Charter, its scheme and content, and compares the status of the Charter and Convention in the Irish courts. It also considers the scope of application of the Charter and the relationship between the Charter, Convention, and national human rights law.

Chapter 6 turns to consideration of the Charter before the Irish courts, considering the case law on a number horizontal cross-cutting issues, namely, the scope of the Charter, the relationship between the Charter, the Constitution and the Convention, the right to good administration and the right to an effective remedy.

Chapter 7 reviews sectoral developments of Charter jurisprudence in the Irish courts, in the fields of asylum and immigration law, the European Arrest Warrant, data protection law, family law, companies? rights and social and employment rights.

Chapter 8 seeks to draw together some key conclusions on European rights as applied in Irish courts and tribunals.

GuestPost - Wed Jul 29, 2015 08:05
Human Rights in Ireland welcomes this guest post from Prof. Marie Fox and Dr. Sheelagh McGuinness (University of Birmingham). A recent blog at Mumsnet highlighted the dire circumstances of Northern Irish women and girls who are rarely able to access abortion on the NHS without travelling to another part of the UK. This year has(...)
Alliance for Choice 40-Women per week travel out of N.Ireland for abrtions

Alliance for Choice 40-Women per week travel out of N.Ireland for abrtions

Human Rights in Ireland welcomes this guest post from Prof. Marie Fox and Dr. Sheelagh McGuinness (University of Birmingham).

A recent blog at Mumsnet highlighted the dire circumstances of Northern Irish women and girls who are rarely able to access abortion on the NHS without travelling to another part of the UK. This year has witnessed growing criticism of the extremely limited availability of abortion in Northern Ireland. In February Amnesty International published a report which was highly critical of the ?draconian? laws and called for urgent reform. In similar vein on Friday July 24th the UN Human Rights Committee stated:

The Committee is concerned about the highly restricted circumstances in which termination of pregnancy is permitted under the law in Northern Ireland, and about the severe criminal sanctions for unlawful abortion, thus putting women?s life and health at risk and forcing them to travel in order to seek abortion. ?

The State party [the UK] should, as a matter of priority, amend its legislation on abortion in Northern Ireland with a view to providing for additional exceptions to the legal ban on abortion, including in cases of rape, incest, and fatal fetal abnormality. The State party should also ensure access to information on abortion, contraception and sexual and reproductive health options.

People are often surprised to learn about the highly restrictive framework that is attracting this condemnation. Abortion in Northern Ireland is primarily regulated by the Offences Against the Person Act 1861 which has been interpreted by judges to permit abortions only in cases where continuance of pregnancy threatens the life of the pregnant woman or poses a ?real and serious? risk of ?permanent or long-term? harm to her physical or mental health. So what is a woman to do in Northern Ireland if she finds herself pregnant and wishes to have a termination? As discussed in Mara Clarke?s blogpost on mumsnet she can either travel, or procure pills online ? and these two options have recently been subjected to legal scrutiny, as a result of three high profile legal actions.

Although organisations such as Women on Web and Women Help Women have made it safer to procure abortion pills online by providing them through verified sources, it is still illegal to do so. The dangers of relying on this method are highlighted by the prosecution of a woman in Northern Ireland who appeared before Belfast City Magistrate?s Court in June of this year charged with helping her daughter to procure early medical abortion pills online. In accordance with the offences outlined in sections 58 & 59 of the Offences Against the Person Act 1861 she has been accused: ?of procuring a poison or other noxious substance, namely Mifepristone and Misoprostol, knowing that it was to be used with the intention of securing a miscarriage?. This case is ongoing, but it shows the legal dangers for women who are left with no other choice than to continue with a pregnancy they don?t want, and who can?t for whatever reason travel to access a termination elsewhere.

Travel, of course, brings with it its own barriers, which we have discussed before. One of the key barriers has also recently received legal scrutiny ? the question of payment. On Wednesday 22nd July two women (A & B) had their appeal against the decision of the Secretary of State for Health not to fund abortions for women from Northern Ireland under the NHS in England rejected. The women in this case were a mother and daughter from Northern Ireland who travelled to England to access abortion care. As they were not ordinarily resident (the threshold for funding) in England they had to pay for treatment.

Finally in a further legal challenge to the current law, another Northern Irish woman who was forced to travel to England for an abortion has launched a judicial review action. This woman, Sarah Ewart, had to travel for a termination after a diagnosis of anencephaly in the fetus at 20 months gestation. Backed by the Northern Ireland Human Rights Commission and Amnesty International, she is challenging the failure of the Northern Ireland Assembly to issue legislation making provision for abortion.

All of the above highlights the impact that current restrictions have on the day-to-day experiences of women in Northern Ireland, and how the pressure for change is growing. In order to contribute to and inform these discussions we are undertaking some research on women?s experiences of travel, the first stage of which involves an online survey.

We are legal academics based in the Law School at the University of Birmingham and wish to find out more about the experiences of women who have had to travel from Northern Ireland to England to access abortion care. This will help us assess the impact of current legal restrictions. Specifically we want to hear from women about:

  • their motivations for and experience of travel
  • the financial implications of having to travel

Our main research questions are as follows:

  • Did having to travel to access abortion care impact on your experience of treatment? If so, how?
  • What steps did you take in order to arrange treatment?
  • Were you aware in advance of needing an abortion what the legal position in Northern Ireland was?
  • What was the impact of having to pay for treatment?
  • How did you pay for treatment?

If you are interested to complete our online survey, or know of other women who may wish to do so, you can find it here: https://www.surveymonkey.com/s/3JJ6P2B

Pic Credit: Alliance for Choice NI

Vicky Conway - Thu Jul 23, 2015 10:59
Earlier this week I spoke at the MacGill Summer School on a session about justice reform. The other speakers on the panel were Minister for Justice Frances Fitzgerald (speech available here) and Conor Brady, former GSOC Commissioner and historian of an Garda Síochána. The focus of my talk was one of the particular elements of reform(...)

macgillEarlier this week I spoke at the MacGill Summer School on a session about justice reform. The other speakers on the panel were Minister for Justice Frances Fitzgerald (speech available here) and Conor Brady, former GSOC Commissioner and historian of an Garda Síochána. The focus of my talk was one of the particular elements of reform of policing which I believe is paramount to achieving real change: depoliticisation. I argued that the idea of policing authority is one which could radically contribute to that but that the way it has been drafted will not enable that because it prolongs a position where Government maintains substantial control over policing. The following is part of the paper and you can read the complete version here. You can also watch the full session, including the questions and answers here

The 2005 Act legislatively enshrined the Commissioner?s accountability to the Minister, and it gave the government the power to demand any document relating to any investigation. The governance system of the police in Ireland makes it possible for any of the above forms of political interference to occur. Government has the legislative power to exercise both passive and active control over policing. Added to this, we know little about how and when these powers are exercised because it happens behind closed doors, evidenced by the fact that a Commission is required to establish the circumstances of Commissioner Callinan?s departure.

De-politicised Policing?

A Policing Authority which assumes governance responsibilities for policing could disrupt that pattern of influence. It could assist in depoliticising policing and in making its governance more open and transparent. It would provide a form of separation of powers.

The original heads of the Policing Authority Bill were encouraging in this regard. That version transferred many key government powers to the Authority, including holding the Commissioner to account, ensuring Garda resources were used to ?maintain the highest levels of efficiency and effectiveness? as well as monitoring garda compliance with human rights. Unfortunately, by the time the Bill was presented to the Seanad these powerful sections had been deleted. Rather than achieving de-politicisation and a necessary separation of powers over policing, we instead will get an added layer of bureaucracy, something which serves only to make the governance of policing more unwieldy and complicated.

How does the proposed legislation maintain political control of policing? The following is a list of all the powers retained by either the Minister or the Government over policing. Many of these can be individually justified, but I want to consider the totality of these, to demonstrate the scale of control which remains centrally vested:

  • The Commissioner and Deputy Commissioner will be appointed and removed by government;
  • The Commissioner is accountable to Government (it has been stated that the Commissioner will remain accountable to government on matters of national security but, respectfully, that?s not accurate. The original provision on accountability is not altered: the Commissioner will remain accountable to the Minister for the performance of the Commissioner?s functions and those of the Garda Síochána.[1] This concerns all aspects of policing, not just national security);
  • Policing plans, policing strategies and priorities must be confirmed by government;
  • Security priorities will be set by government;
  • Budget is determined by government;
  • The Minister can demand any documents of an Garda Síochána;
  • The Minister can issue written directives to an Garda Síochána, and to the Authority;
  • CCTV schemes must be approved by Minister;
  • Ministerial consent is required for GSOC to investigate the Commissioner;
  • The Minister decides the number of senior rank positions;
  • The Minister consents to the number of civilian staff, the appointment of members to the Audit Committee, the appointment of the CEO of the Authority;
  • The Minister decides what constitutes state security (if we have a legislative definition, surely interpretation of that definition is a judicial, not an executive, function?)
  • Government consent is required for gardaí to work with a police service in another state;
  • The Minister authorises delegation of the Commissioner?s functions to the Deputy Commissioner;
  • The Minister can appoint someone to inquire into any aspect of policing; and
  • Statistical information on crime compiled by an Garda Síochána is to go to the Minister (and not the Authority).

It is the combination of these factors which is problematic: the sum total is a situation where the government continues to have too much control over policing.

What powers, then, is the government relinquishing? Government will no longer:

  • be involved in appointment of lower ranks;
  • have a stronghold over appointment at the higher ranks;
  • be involved in the dismissal of gardaí or in the Garda reserve;
  • be required to publish a code of ethics (the 2005 Act required the Minister to do this, but it was never done);
  • receive the 3 year review report or reports from the Garda Professional Services Unit; or
  • have a role in Joint Policing Committees.

There are, of course, additional functions which the Authority will have, like holding public meetings with the Commissioner, but these are added elements to the governance of an Garda Síochána. The Minister and Government will continue to have effective control over policing in Ireland.

Why maintain the stronghold?

The reason cited by government for the turnaround on powers transferred to the Authority, is Article 28.2 of the Constitution: ?The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.?

I don?t have time to explore the complexity of this provision but I?ll make some brief points, in the hope of beginning that very necessary conversation.

Only a small number of matters are explicitly stated in the Constitution to be executive functions but the courts have agreed there are other implicit executive powers.[2] There?s little case law to aid this interpretation, very little of which specifically discusses policing. So whether or not, or the extent to which, policing falls within art 28 is unclear.

Examination of the legal status of both individual gardaí and the Commissioner presents problems for fitting their functions within Art 28. The fact that individual gardaí have wide and discretionary powers to interfere with constitutional rights, and that they can?t be directed on when or if they should use those powers, seems to be me to be incompatible with a claim that theirs is an executive function. The function of the Commissioner is defined as ?to direct and control an Garda Síochána and to advise the Minister on policing and security matters.?[3] Ministers have repeatedly declined to accept responsibility for decisions of the Commissioner, as policies and practices are for the Commissioner to decide.[4] The Minister?s role is to hold the Commissioner to account for doing these jobs, not to have a hand in how they do them. Again, that is a powerful role in itself which is also not compatible with the characterisation as an implicit executive function under article 28.

Given the legal status of both the Commissioner and individual gardaí it is difficult to conclude that policing is an executive function. What we perhaps can agree on is that the security of the State is an executive function.[5] In debates in the Seanad this has been the argument made by Minister Fitzgerald and Minister O?Riordáin, that because an Garda Síochána is the security service of the State then it?s work falls within article 28. But even if we accept that national security is an executive matter, it doesn?t follow that every single one of the controls which Government seeks to retain is an executive function. Immigration is an executive function but that doesn?t mean that all the relevant controls and powers are exercised by Government.

We need, to my mind, to tease out more clearly the implications for police governance, of classifying state security as an executive function. I don?t believe, for instance, that it automatically holds that because national security is an executive function, policing strategies can only be approved by government. This is a complex extension of a constitutional provision and it?s certainly one that should be explored very carefully before being used to prevent the de-politicisation of policing.

What are the options?

Even if we do accept the executive status of state security, what is being proposed is not necessarily the only option. A number of possibilities exist:

  1. The Government could publish the AG?s advice and engage in a full debate about this.
  2. The Government could be less cautious, enact what it had originally proposed, and let the courts determine the constitutionality of those provisions.
  3. The plans for policing and state security could be separated. Some separation has already been proposed, in terms of the setting of policing and security priorities.
  4. What if there were elected politicians on the authority? Would it be easier to delegate the executive function if TDs were exercising these powers, in conjunction with independent members? The all independent panel model which has been adopted replicates the Scottish model. But Police Scotland is not normally heralded as a prime example of good police governance and accountability. And yes, I appreciate that this would reinject politicians into the process when I?m arguing for de-politicisation, but it would be more open and transparent and it would enable delegating those powers from government.
  5. If none of those seem viable we must question whether it is time to separate national security from an Garda Síochána. This is a development which I have resisted, believing that it will create an even more secretive, less accountable force to enforce the most intrusive state powers. That said, if none of the other options are possible then it may be time to accept that this is the lesser of two evils.

Conclusion

If the Policing Authority legislation is enacted as it stands it will not be able to contribute to any substantive reform of policing in Ireland. It will instead represent another layer of bureaucracy, another body to discuss policing while the Minister and the Commissioner retain all core power over policing. It will not break the cycle we have found ourselves in of scandal, reform, scandal. We should, I feel, be very concerned at untested constitutional arguments being used as the reason for this limited reform. These are not, to my mind, the kind of changes to laws that will lead to changes in culture and changes in lived experiences. These are not the kind of changes which will give those who feel let down, or even victimised, by the criminal justice system, confidence that others will not have such experiences. That should worry us; it worries me.

[1] S.26, Garda Síochána Act 2005

[2] See Murphy v Dublin Corporation [1972] IR 215

[3] S.26 Garda Síochána Act 2005.

[4] Walsh, The Irish Police (1999), Chapter 5.

[5] Case law on immigration would support this conclusion.

 

Sinead Ring - Tue Jul 21, 2015 11:32
Victims? Rights: An Agenda for Change. September 11th, 2015, University of Limerick.  *6.5 CPD Points* On September 11th 2015, the Centre for Criminal Justice at UL will host a one-day conference on Victims’ Rights entitled ‘Victims’ Rights in Ireland: An Agenda for Change’. Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime(...)

IJELVictims? Rights: An Agenda for Change. September 11th, 2015, University of Limerick.

 *6.5 CPD Points*

On September 11th 2015, the Centre for Criminal Justice at UL will host a one-day conference on Victims’ Rights entitled ‘Victims’ Rights in Ireland: An Agenda for Change’. Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime (The Victims? Rights Directive) must be implemented into the national laws of all EU Member States by the 16th of November 2015. In light of the implementation of this Directive, this one-day conference at the University of Limerick is timely and will provide a forum to facilitate discussion about the requirements of the Directive. The conference will be of interest to a wide variety of criminal justice stakeholders including members of an Garda Síochána and members of the judiciary and legal professions, as well representatives from interest groups and academics.

Keynote speakers include:

  • The Honourable Mr Justice Peter Charleton (Supreme Court)
  • Garda Commissioner Noírín O?Sullivan
  • Professor Matthew Hall (University of Lincoln)
  • Professor Jonathan Doak (University of Durham)
  • Ellen O?Malley Dunlop (Dublin Rape Crisis Centre)
  • Joan Deane (ADVIC)

Breakout sessions will also provide an opportunity for debate about the key themes of the Directive (i.e. participation, information and protection) and consider how best Ireland can meet the challenges posed in honouring the requirements of the new Directive. Presentations at these sessions will be provided by academics and stakeholders with expertise in the area of victims? rights.

Registration:

Conference Fee: ?40.00 (A reduced rate of ?20.00 will apply for students).

(Conference fee includes light lunch and coffee/tea breaks)

A provisional programme for the event is available and Registration Form is available on the UL School of Law website:

http://www.ul.ie/law/news/00%5Bnid%5D-victims-conference-september-11th

Queries may be directed to: victimsconference2015@gmail.com

Peter Dunne - Fri Jul 17, 2015 01:34
On 15 July, 2015, Ireland became the final European Union Member State to enact legal gender recognition. As has been noted on this blog many times (e.g. here, here and here), under current Irish law, persons living in this jurisdiction do not have any mechanism ? statutory, administrative or judicial ? for amending their birth(...)

On 15 July, 2015, Ireland became the final European Union Member State to enact legal gender recognition. As has been noted on this blog many times (e.g. here, here and here), under current Irish law, persons living in this jurisdiction do not have any mechanism ? statutory, administrative or judicial ? for amending their birth certificate and obtaining state acknowledgment of their preferred gender. More than 20 years after Dr Lydia Foy first requested recognition, 13 years after the European Court of Human Rights declared that recognition was a Convention Right and eight years after the Irish High Court found the State in violation of its international obligations, the Irish Parliament has finally created a legal structure which will acknowledge the existence and dignity of trans persons.

The Gender Recognition Act 2015 has travelled a long way to reach its current format and structure (and, as discussed below, there is still significant progress to be made). When the Gender Recognition Advisory Group ? a consultative panel established to advise the Government on legislating for recognition ? announced its recommendations, the proposed legislation still retained references to surgical interventions, lived-experience, ?gender identity disorder? and gender panels. Delivered in 2011, by an advisory body with no trans members, the ?GRAG? report appeared at a time when advocates were increasingly applying human rights standards to legal gender recognition. Its highly medicalised recommendations were not only out of step with international best practice, but also failed to engage, in any meaningful way, with the lived-experience of Ireland?s trans community. Amendments, additions and omissions have characterised the legislative process in the intervening years. Surgery and diagnosis were removed, but medical supervision ? in the form of a controversial ?physicians statement requirement? ? remained frustratingly present until earlier this year. The particular situations of married couples and young people have been a source of intense debate. To differing extents, these issues remain unresolved, as do concerns relating to non-binary recognition, intersex persons, gender-specific crimes and the status of trans parents.

Due credit in passing the Gender Recognition Act 2015 must be offered to the two Government ministers, Tanaiste Joan Burton and Kevin Humphreys, who have had responsibility for legal gender recognition since assuming office. In the space of four years, they have achieved what successive Irish Governments failed to do: acknowledge that Ireland?s trans community exists. Both ministers have also come a long way in their own personal understandings of trans issues, and received a warm welcome at Trans Pride in Dublin earlier in the summer. However, the Gender Recognition Act 2015 is, in truth, a testament to the incredible work of Ireland?s vibrant, engaged trans community and their allies (TDs, political groupings, NGO-based groups, and members of the public). Committed, dedicated and strategic advocacy over the past four years has managed to transform GRAG?s recommendations into the progressive legislation enacted on 15 July. While often subject to lurid, highly offensive commentary, the Irish trans community has retained a focused, dignified drive in working to achieve recognition of its membership. This drive has been epitomised by the legal fights waged by Dr Foy. Her courage and resilience has inspired advocates for reform, and rightly won her the European Citizen?s Prize 2015.

As noted, from a comparative prospective, the Gender Recognition Act 2015 is highly progressive. Transgender Equality Network Ireland (TENI) observes that Ireland is only the fourth country in the world (after Argentina, Denmark and Malta) to pass legislation which allows trans persons to obtain recognition on the basis of ?self-determination.? Once the new legislation comes into force, trans people will be able to apply for legal recognition based solely on their ?settled and solemn intention of living in the preferred gender for the rest? of their lives. Instead of having to show that they have undergone surgery, sterilisation, have a diagnosis or are supported by doctors, applicants for recognition need only confirm that they understand ?the consequences of the application? and are seeking state acknowledgement of their own ?free will.?

The movement away from the physician?s statement model – announced by the Government after the marriage equality referendum ? is extremely important both in practical and symbolic terms. From a practical point of view, it means that trans people, in order to obtain recognition, do not have to rely upon the notoriously difficult healthcare pathways in Ireland. Anecdotal evidence regarding access to gender confirmation treatments in Ireland means that, with a requirement to obtain support from a ?primary medical practitioner?, applicants for recognition would likely have faced a waiting period of months, possibly years. In addition, as recognised in numerous EU-wide reports, a significant section of the trans community cannot access even basic healthcare services. Thus, medicalising legal gender recognition ? even through medical supervision clauses ? would have had the effect of removing enjoyment of recognition from a significant proportion of Ireland?s trans population. However, perhaps more fundamental, a self-determination model respects the autonomy and dignity of applicants for recognition. It acknowledges that trans persons should be the arbiters of their own identity. Living and experiencing their gender, applicants for recognition are best placed to identify their true self. They should not be subject to arbitrary or discriminatory medical assessments.

The scheme (not the current text) of the Gender Recognition Act 2015 is notable for its removal of forced divorce. Under the initial, pre-referendum proposals, trans persons were required to be single or divorced in order to obtain recognition. The stated aim was to avoid unconstitutional marriages. While many people have challenged this historical view of Ireland?s constitution, the Government?s actions were supported by legal advice and thus remained in place. However, following the marriage equality referendum, the forced divorce requirement is no longer an imperative and thus the aim was to remove those conditions completely. However, as the referendum is now subject to legal challenge, the forced divorce requirement has been initially retained. The Government has committed to removing the requirement as part of the enacting legislation for marriage equality. This move has huge significance. It means that trans persons, who remain in a marriage that they do not want to dissolve, are able to maintain and protect the integrity of their legal family.

Of course, the Gender Recognition Act 2014 is certainly not without critique. A major omission is young trans individuals. As noted previously (here and here), trans children and adolescents are not adequately provided for in the new legislation. People under 16 years are completely excluded. Their lives and identities are erased from Irish law. Individuals aged 16 and 17 years are nominally included. However, the legal process for seeking recognition is so onerous ? two doctors, parental consent and a court order ? that few, if any, applicants will obtain recognition before the age of majority. The negative consequences of excluding children from recognition ? mental health concerns, denial of services, peer bullying and violence ? are clear and well-known. Yet, so far, the Government has shown little willingness to move.

One light of hope is a promised review in two years time. This will be an opportunity to illustrate the need for increased recognition. It is unclear, however, what the Government believes that it will learn in 24 months time that it cannot already now discover. Numerous young people have spoken openly about their experiences in a legal environment which has no obligation to recognise their true identity. By 2017, an increasing number of States ? Norway, Sweden etc ? will have allowed children to access recognition. Yet, these countries have already announced their intention to do so and, in some cases, have already published the specific legislation to be enacted. Yesterday, the same day that the Government enshrined the second class status of trans children, the first Trans Youth Forum took place in Dublin. It was an incredible example of the vibrancy and resilience among trans youth in Ireland. Yet, the stories told also reinforced understandings about the real difficulties which trans young people face, and the links which exist between discrimination and the absence of recognition in this country.

The Gender Recognition Act 2015 also fails intersex persons and individuals who do not fall within traditional gender binaries. Although the legislation is intended to cover intersex people (and hopefully will be interpreted as such) the lack of express reference to intersex and the specific mechanisms of the Act may place legal acknowledgement out of reach for many intersex applicants. In addition, an increasing number of Ireland?s trans community identify outside male or female legal classifications. The current recognition model offers no solution or recognition to the problems which these persons encounter. Other jurisdictions have looked at providing third gender options for non-binary persons on identity documents, such as passports. While a third gender or ?X? gender option will not address the needs of all non-binary persons, it would be a first, good faith effort on behalf of the Irish state.

The passage of the Gender Recognition Act 2015 is a momentous event. It is another step towards promoting the equality, dignity and full citizenship of all persons. The legislation is certainly not perfect and, in many aspects, remains deeply flawed. However, the movements towards self-determination and away from forced divorce will significantly ease the application process for countless individuals. Self-declaration is a powerful statement of the autonomy and dignity of trans persons. After a long struggle, this is a moment to savour. Moving forward, the fight for full and equal rights will continue.

Aoife O'Donoghue - Thu Jul 16, 2015 11:05
When I began teaching International Economic Law in 2007 one of the thematic issues that ran through the course was the relevancy of global economic institutions and in particular the IMF. The question of its continued relevancy emerged from two ongoing critiques. First, there was a downward trend in the use of the Fund’s resources and(...)

Part-PAR-Par8194627-1-1-0When I began teaching International Economic Law in 2007 one of the thematic issues that ran through the course was the relevancy of global economic institutions and in particular the IMF. The question of its continued relevancy emerged from two ongoing critiques. First, there was a downward trend in the use of the Fund’s resources and following from that, its traditional funders sensing a lack of significance incremently reduced the funds available to it. This resulted in the IMF holding sums available to it which were relatively low in comparison to its hey day in the post World War II era. Second, and more significantly, it had developed an extremely bad reputation amongst debtor states which meant that they were loath to approach it for funds. Thus in 2007, the IMF seemed doomed to irrelevancy meaning that its historic role from rescuing economies like the UK in the late 1970s to managing global currencies pegged to the dollar seemed all but over and the influence of its broadcasts on the global economy entirely absent.

Of course much has changed since then, if only from a European perspective, the Organisation has found a purpose, increased resources and, as has been demonstrated by its announcement about the Greek Bailout deal, its opinion and forecasts considered very relevant. But its turnaround from relic of the post-WWII settlement to erstwhile hero of the absurd nature of the Greek bailout deal seems bizarre given the reasons it fell from grace in the early years of the 2000s.

The IMF’s poor reputation stems from two factors, its adoption of the Washington Consensus and its handling of the Asian Financial Crisis and Mexican currency crisis of the 1990s and its interactions with Argentina. The Washington Consensus (which seems to be the basis on which the EU has operated since the start of the financial crisis in Europe) formed a core element of the IMF’s conditionality whenever a state was forced to go to it for funds. Whilst the IMF was at the forefront of its adoption, the World Bank and bilateral donors such as the US also consistently applied its terms. It is fundamentally a neo-liberal approach and its terms include:

  • Fiscal discipline – strict criteria for limiting budget deficits
  • Public expenditure priorities – moving them away from subsidies and administration towards previously neglected fields with high economic returns
  • Tax reform – broadening the tax base and cutting marginal tax rates
  • Financial liberalization – interest rates should ideally be market-determined
  • Exchange rates – should be managed to induce rapid growth in non-traditional exports
  • Trade liberalization
  • Increasing foreign direct investment – by reducing barriers
  • Privatization – state enterprises should be privatized
  • Deregulation – abolition of regulations that impede the entry of new firms or restrict competition (except in the areas of safety, environment and finance)
  • Secure intellectual property rights – without excessive costs and available to the informal sector
  • Reduced role for the state. (from the WHO)

These policies were and continue to be extremely controversial and for many commentators were the cause of economic stagnation in the economies that the IMF (and World Bank) imposed their conditions upon. They were also the reason why states were very reluctant to approach the IMF for funds. Whilst the IMF and World Bank have now moved to the ‘post’ Washington consensus and have accepted that these policies were unsuccessful in returning economies to health – though it must be said that neither organisation has moved tremendously far from these either and their conditionality remains problematic – what seems remarkable is that it is exactly the form of conditionality which the EU is now imposing. Conditions which have been widely accepted, even by conservative commentators, as ineffective.

The curious picture of the IMF questioning the Greek bailout and appearing to be ‘looking out’ for the Greek future whilst the EU is being punitive and stuck in a 1980/90s vision of conditionality ought to raise alarm bells in Brussels. Why an organisation famed for its harsh terms has felt the need to so starkly reprimand the EU needs to be considered by Governments across Europe. The IMF is correct when it says the terms of the bailout will completely fail to benefit the Greek economy and its people, it learned that the hard way by continully failing to produce positive results in economies across the globe by imposing such conditions. Besides the many difficult questions as to democratic legitimacy and control of fiscal policy the blinkered use of a style of economic rescue long considered outmoded suggests that the terms doled out to Greece have little to do with ensuring economic growth but rather a form of punitive action for not unquestioningly following conditions. The EU ought to listen to the IMF’s cautionary tale or perhaps it too risks becoming a point of debate in an international economic law class as to its continued relevancy.

GuestPost - Tue Jul 14, 2015 07:45
Following on from yesterday’s guest post, we are please to welcome this second post from Dr Susan Power. Susan lectures International Criminal Law at Griffith College Dublin and is a legal researcher for Al-Haq, a Palestinian human rights organization based in Ramallah, Palestine. The views expressed are those of the author and do not represent those(...)

Following on from yesterday’s guest post, we are please to welcome this second post from Dr Susan Power. Susan lectures International Criminal Law at Griffith College Dublin and is a legal researcher for Al-Haq, a Palestinian human rights organization based in Ramallah, Palestine. The views expressed are those of the author and do not represent those of the institutions for which the author currently works.

On 22 June 2015, the United Nations Commission of Inquiry (COI) published its report on violations of international humanitarian law (IHL) and international human rights law (IHRL) in the Occupied Palestinian Territory (OPT) comprising the West Bank including East Jerusalem and the Gaza Strip. The COI was mandated to investigate all violations of IHL and IHRL in the OPT ?in the context of military operations conducted since 13 June 2014, whether before during or after to establish the facts? including Israel?s so-called Operation Brothers Keeper in the West Bank and Operation Protective Edge in the Gaza Strip. The COI examining the pattern and gravity of attacks concluded that Israel may have committed war crimes during its military operations in the Gaza Strip and West Bank including East Jerusalem. It further concluded that senior Israeli officials were responsible for Israel?s military policies, which may also violate the laws of war and considered Israel?s accountability mechanisms inadequate giving rise to prevailing impunity for violations of IHL and IHRL. This article examines the focus of the COI on Israel?s post conflict obligations in relation to the occupation of the Gaza Strip and the blockade.

(1) Belligerent Occupation

Contextually, one of the first hurdles of the COI was in relation to the legal framework and the categorization of Gaza as occupied territory. The COI considered Gaza occupied under Article 42 of the Hague Regulations, applying an effective control test to denote Israel?s control over the territory. Israel has argued that it does not exercise the requisite control over the Gaza Strip since its ?disengagement? of troops in 2005. However the COI, drawing from the ICTY Naletelic case and the Nuremberg Hostages Trial, determined that ?the continuous presence of soldiers on the ground is only one criterion to be used in determining effective control?. Instead the COI considered that the condition was satisfied by the fact that Gaza was almost completely surrounded by Israel which ?facilitates the ability for Israel to make its presence felt?. Although the COI concluded that the Gaza Strip was occupied it considered Israel?s obligations towards the Gaza Strip were ?consistent with the level of control it exercises?. The net effect of this conclusion has been an unsavoury dilution of Israel?s obligations, which is evident throughout the Report particularly in relation to post conflict reconstruction of the Gaza Strip.

During the hostilities the civilian infrastructure of the Gaza Strip was targeted. A staggering 2,251 Palestinians were killed in Gaza, and 11,231 injured with 10% suffering resulting permanent disability. In addition, 80,000 housing units were damaged or destroyed, leaving 100,000 people displaced months after hostilities had ended. Gaza?s power plant was attacked on five separate occasions seriously impacting the delivery of electricity, water and sanitation facilities long after the close of hostilities. However, the COI failed to highlight Israel?s continuing administrative and humanitarian obligations to ensure the provision of essential services stemming from its continued belligerent occupation of the Gaza Strip. Instead, the COI emphasized the need for international and NGO donor aid for the reconstruction effort, while sidestepping Israel?s overarching responsibilities as belligerent occupant. The COI concluded, ?all parties have obligations to respect and take steps towards the realization of these rights, including Israel, the State of Palestine, the authorities in Gaza and the international community? (para 599).

The treatment of post conflict Gaza in the report represented a serious departure from the findings of the 2009 Goldstone Report, which devoted a substantial section to Israel?s obligations as Occupying Power in the Gaza Strip to ensure vital humanitarian guarantees were met (paras. 1300-1335). For example, the Goldstone Report had examined the impact of the blockade and military operations on the people of Gaza and their human rights, examining the economy, livelihoods and employment, food and nutrition, housing, water and sanitation, environment, physical and mental health, education, impact on women and children, persons with disabilities, and the impact of humanitarian assistance provided by the United Nations. It concluded that Israel had obligations to the Gaza Strip under international humanitarian law, customary international law and a number of international human rights treaties.

(2) Blockade

The COI considered that ?the impact of the 2014 hostilties on the Gaza Strip cannot be assessed separately from the blockade imposed by Israel?. However, while the Commission had presented a detailed legal appraisal of the application of occupation law to Gaza, it did not examine the legality of the blockade. The conclusion that Gaza is occupied places it squarely within the categorization of an international armed conflict (IAC). Although blockades are legal within the context of an IAC, the belligerent occupant has obligations under Article 59 of GCIV to permit and guarantee the free passage of consignments of foodstuffs, medical supplies and clothing, while Article 70 of Protocol 1, provides that parties to the conflict facilitate the passage of articles essential for the civilian population at the earliest opportunity, without delay. In addition, Article 102 of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (12 June 1994) considers a blockade prohibited where:

(a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or

(b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.?

In this vein, United Nations Security Council resolution 1860 (2009) called for the reopening of crossing points based on the 2005 Agreement on Movement and Access between the Palestinian Authority and Israel, and the ?unimpeded provision and distribution throughout Gaza of humanitarian assistance, including of food, fuel and medical treatment?. It would appear that the legality of the blockade may be challenged in this regard. The failure of the COI to address the legality of the blockade, represents a missed opportunity, and is out of step with many international opinions on point. For example, in September 2012, a number of United Nations experts, pronounced on the illegality of Israel?s naval blockade of the Gaza coast, suggesting that the naval blockade must be recognized as an integral part of the closure policy towards Gaza which amounted to the war crime of collective punishment. Similarly, the 2009 Goldstone Report had found that Israel?s policy of closure in the Gaza Strip amounted to a collective penalty in violation of Article 33 of the Fourth Geneva Convention (para. 1331).

Conclusion

Despite the determination that the Gaza Strip was occupied, the COI avoided pronouncing on Israel?s continuing obligations towards protected persons in occupied Gaza. In 2014, the World Bank reported that economic decline in Gaza was ?directly linked with armed conflict, movement restrictions, and recently the blockade?. However by linking Israel?s obligations with the level of control it chooses to apply over the OPT, the COI supported Israel?s deliberately engineered role as ?inactive custodian? a relationship at odds with the object and purpose of the Hague Regulations.

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