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Abortion Law in Northern Ireland ? Change at Last? Wed Jul 29, 2015 08:05 | GuestPost
Depoliticising Policing at MacGill Summer School Thu Jul 23, 2015 10:59 | Vicky Conway
Conference Announcement. Victims? Rights: An Agenda for Change. Tue Jul 21, 2015 11:32 | Sinead Ring
Legal Gender Recognition in Ireland Fri Jul 17, 2015 01:34 | Peter Dunne
The IMF?s strange role as the voice of moderation Thu Jul 16, 2015 11:05 | Aoife O'Donoghue
For lefties too stubborn to quit
This Weekend I?ll Mostly Be Listening to? ????? Kinoko Teikoku 05:59 Sat Aug 01, 2015 | irishelectionliterature
CPI Political Statement on EU crisis. 21:27 Fri Jul 31, 2015 | guestposter
The cost of not having sufficient money 17:09 Fri Jul 31, 2015 | WorldbyStorm
Postcapitalism? 12:25 Fri Jul 31, 2015 | WorldbyStorm
That gap in the market in Irish politics? tell us where exactly would that be positioned again? 12:08 Fri Jul 31, 2015 | WorldbyStorm
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(...)
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:
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:
Our main research questions are as follows:
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(...)
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 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.
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:
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:
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. 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.? Ministers have repeatedly declined to accept responsibility for decisions of the Commissioner, as policies and practices are for the Commissioner to decide. 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. 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:
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.
 S.26, Garda Síochána Act 2005
 See Murphy v Dublin Corporation  IR 215
 S.26 Garda Síochána Act 2005.
 Walsh, The Irish Police (1999), Chapter 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(...)
*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:
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.
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:
Queries may be directed to: email@example.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(...)
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 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:
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.
The Commission of Inquiry: Israel?s Obligations as Belligerent Occupant in the Gaza Strip for Post Conflict Reconstruction
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.
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).
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.
Vicky Conway - Mon Jul 13, 2015 20:27
In the past few days two alarming stories have emerged pertaining to the response of the criminal justice system to rape allegations in Ireland. Both, if accurately reported, provide further evidence of the failure of the Irish system to respond appropriately, in a way which respects the rights of victims satisfactorily. The first case concerns(...)
In the past few days two alarming stories have emerged pertaining to the response of the criminal justice system to rape allegations in Ireland. Both, if accurately reported, provide further evidence of the failure of the Irish system to respond appropriately, in a way which respects the rights of victims satisfactorily.
The first case concerns a woman, a sex-worker, who alleged rape by a garda. The following comment is based on the report published by GSOC, which is brief in nature. On the evening in question, the garda concerned had arrested the woman. He returned later that night and they had sexual intercourse. The woman stated to GSOC that she felt compelled to have sex with him, fearing further prosecution. For the sake of clarity, submission or coerced consent does not constitute valid consent. Another woman made a supporting complaint, as a direct witness. The garda, when questioned under arrest, stated that the intercourse was consensual. GSOC submitted a file to the DPP who decided not to prosecute. GSOC then followed the only other avenue open to it, which was a disciplinary investigation. GSOC recommended that a breach of discipline (abuse of authority) occurred and a sanction should be imposed. This was subsequently done by Garda authorities. There are a few points I would highlight in relation to this.
It is notoriously difficult to secure convictions against gardaí; juries tend to acquit police in this jurisdiction. We don?t know the reasons for this as we are not allowed to ask jurors why they reach the decisions they do, but we can speculate that either they are more inclined to believe gardaí or there?s a combination of sympathy for gardaí given the difficulty of their job and judgment of the victim at play. It is possible that this was seen to detract from the possibility of conviction.
At present the DPP only provides reasons for decisions not to prosecute in cases involving a fatality. In the project undertaken by that office in 2008 on the issue of reasons, it was stated that sexual crimes was one area into which this could be expanded, but that has not yet happened. It is worth noting in that the EU Victim?s directive is due to be implemented in Ireland by the end of this year and that will require much greater communication to victims of reasons.
The second case concerns a man who admitted raping and sexually assaulting his girlfriend while she slept, and who today received a sentence suspended, meaning that he will not be imprisoned for his crimes. While he admitted that he had raped her around 10 times, and sexually assaulted her around 3 times a week in the course of their relationship, he was prosecuted for just one count of each offence, for reasons that are unclear. In a harrowing victim impact statement it is clear just how severely this abuse affected the victim, who also refers to other forms of controlling behaviour. Sentencing of course involves a balancing of factors, and a guilty plea and the ordeal that it spares victims is certainly something which can be taken into account. That said, rape is one of the most serious crimes in Ireland, one of the few that can attract a term of life imprisonment. We can only rely on media reports of what happened in court today but on first reflection it seems very difficult to justify such a lenient sentence.
We know from the Garda Inspectorate report that there are serious problems in how gardaí respond to victims of serious crimes, and in the last few days we have been given further reason to question the response of the DPP and the courts. These were brave women who came forward, who were prepared to go through trials and cross-examination and media-reporting of intimate, private details of their lives. If the reports mentioned are accurate, it is hard not to feel that they have been poorly treated and let down by the system that should protect them. We should all be very concerned at how the Irish criminal justice system is responding to sexual crimes, particularly where members of that system are the alleged perpetrators. Women under-report sexual crimes as is, and these reports are unlikely to help that.
The Commission of Inquiry: Israel?s Accountability for War Crimes during Operation Protective Edge and Operation Brothers Keeper
GuestPost - Mon Jul 13, 2015 07:45
We are happy to welcome this post from Dr Susan Power, who 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(...)
We are happy to welcome this post from Dr Susan Power, who 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.
This post on the 2015 Commission of Inquiry (COI) into the OPT, presents an overview of the COI?s examination of Israel?s accountability for war crimes committed during Operation Protective Edge and Operation Brothers Keeper in the OPT. Notably the preamble to Human Rights Council resolution S-21/1 had indicated grave concern at the lack of implementation of the recommendations of the Goldstone Report in 2009, which had given rise to a ?culture of impunity?. In 2009, the Goldstone report surmised, ?it was struck, as well, by the comment that every time a report is published and no action follows, this ?emboldens Israel and her conviction of being untouchable?. To deny modes of accountability reinforces impunity, and tarnishes the credibility of the United Nations and the international community? (para. 1957). The Human Rights Council had noted a ?systemic failure? by Israel in investigating international crimes orchestrated against Palestinians, and issued the 2015 COI with a mandate to make recommendations on accountability measures. This article will examine how the COI has addressed the systematic impunity which prevails over crimes committed by Israeli forces in the OPT
(1) Establishing ?Patterns of Alleged Violations?
Interestingly, the Commission outlines the significance in establishing ?patterns of alleged violations? (para. 13) adopting the language of gross violations of human rights derived originally from Human Rights Commission Resolution 8 (XXIII) (1967) on the ?Study and Investigation of Situations Which Reveal a Consistent Pattern of Violation of Human Rights?. The language of ?pattern? has been used in the Inter-American court system to describe the seriousness of human rights violations. A ?pattern of alleged violations? may denote a widespread or systematic attack against the civilian population, or it may also fit into the threshold of Article 8 war crimes, ?committed as part of a plan or policy of a large-scale commission of such crimes?.
However the COI generally refers to patterns of events, which although singularly might comport with the LOAC, taken altogether amount to an attack on the civilian population. For example, the COI cite the ICTY Kupreskic Judgment whereby a ?pattern of military conduct may turn out to jeopardize excessively the lives and assets of civilians?. This referred to warnings outlined in Article 58 and 59 API, which were rendered ineffective by repeated attacks against civilians. The delivery of ineffective warnings instead established a pattern of conduct creating an environment conducive to attacks on civilians. Furthermore, the COI Report indicates that ?the blockade and the military operation have led to a protection crisis and chronic, widespread and systematic violations of human rights? (para. 24) indicating potential crimes against humanity, although the detailed report refers only to ?widespread? human rights violations (para 550).
(2) The Commission of War Crimes
At a minimum, the COI found that there were reasonable grounds for concluding that Israel may have committed war crimes. The COI considered that there were strong indications that IDF attacks on residential properties located in densely populated areas of the Gaza Strip, in the absence of an anticipated military advantage, violated the principle of proportionality and amounted to war crimes. Furthermore, the use of GBU-32/MK-82, 1000lb and GBU 31/MK-84, 2000lb bombs in densely populated areas were intended to have a wide impact, thus violating the prohibition on indiscriminate attacks (para. 226). As such, the targeting of civilians not taking part in hostilities, violated the principle of distinction and amounted to war crimes. Nor was the COI convinced that Israel had taken all feasible precautions in attacks. The COI pointed inter alia to other war crimes committed by the IDF including the razing of Khuza?a, (para. 337), the IDF?s use of human shields (para. 346), the torture and ill treatment of Palestinian civilians (para 346), indiscriminate attacks orchestrated by the implementation of the Hannibal Directive in Rafah (para. 365), the use of indiscriminate weapons amounting to a direct attack on civilians (para 415, 446), attacks on medical transports and medical personnel (para 464) and willful killing in the West Bank including East Jerusalem (para. 71 of Report).
(3) War Crimes as Policy or Plan
Overall, the COI established that the war crimes were committed as part of a broader military and governmental policy and plan. For example, the COI expressed its concern that Israel had applied a liberal understanding of ?military objective?, which was ?broader than the definition provided by international humanitarian law?. More specifically, the COI considered that IDF strikes on civilian property amounted to military tactics, which were reflective of a broader policy sanctioned by decision makers in the highest levels of government. Similarly, it considered Israel?s use of the Hannibal Directive, to use all means to prevent the abduction of a soldier as ?unusually expansive in terms of defining what targets are legitimate military objectives? (para. 360). This contributed to a military culture, which contributed to ?the unleashing of massive firepower on Rafah? (para. 371). In addition, IDF policies on using inaccurate weapons in densely populated areas contributed to significant civilian casualties (para. 414).
(4) Ineffectiveness of Existing Accountability Mechanisms
Notably, the ICC has opened a preliminary examination into the situation in Palestine. Should a situation be opened, in terms of complementarity, the ICC may find a case admissible where a State remains inactive or is otherwise unwilling or unable to genuinely investigate or prosecute crimes within the jurisdiction of the Court. In this regard, the transparency of Israel?s Military Advocate General (MAG) and General Staff Mechanism for Fact-Finding Assessments (FFAM) investigations into incidents during Operation Brothers Keeper and Operation Protective Edge is significant (para. 114). The COI noted that investigations had not taken place into IDF attacks on Shuja?iya (para. 298). Despite the gravity of crimes described by the COI, by April 2015, the MAG had identified seven incidents for examination, three of these related to minor incidents of soldiers looting. Accordingly, the COI questioned the independence, impartiality and transparency of Israel?s system of investigations ? for example the Israeli High Court of Justice had adopted a position of non-intervention in matters relating to the military prosecutor. Moreover, Israel by not allowing lawyers for complainants review investigatory materials, and not informing complainants of MAG decisions had operated in an ?accountability vacuum?. Altogether the COI concluded that the investigations of the FFAM tended to focus on ?exceptional incidents? leaving out examinations of IHL stemming from an intentional policy or military command. As such, there was no examination into the role of senior Israeli military and civilian leaders in relation to violations of IHL.
Following the publication of the findings of the COI, the State of Palestine submitted a file to the ICC documenting Israel?s war crimes in the OPT. On 3 July 2015, the UN Human Rights Council adopted resolution A/HRC/29/L.35 ??Ensuring accountability and justice for all violations of international law in the Occupied Palestinian Territory, including East Jerusalem?? calling in particular on ?the parties concerned to cooperate fully with the preliminary examination of the International Criminal Court and with any subsequent investigation that may be opened?. Notably the Resolution underscored the importance of the 2009 Goldstone Report for future accountability efforts, which is significant given the narrow jurisdiction of the ICC back to 13 June 2014 for crimes committed in the OPT.
Cliodhna Murphy - Tue Jul 07, 2015 10:59
It has been an interesting time for asylum and immigration policy in Ireland. Last week saw the publication of the MacMahon Report on Direct Provision (read Liam Thornton?s analysis here), then, at the weekend, leaked documents provided some insight into Ireland?s ?hands-off? approach to early EU negotiations on search and rescue in the Mediterranean. Yesterday,(...)
It has been an interesting time for asylum and immigration policy in Ireland. Last week saw the publication of the MacMahon Report on Direct Provision (read Liam Thornton?s analysis here), then, at the weekend, leaked documents provided some insight into Ireland?s ?hands-off? approach to early EU negotiations on search and rescue in the Mediterranean. Yesterday, the Immigrant Council of Ireland published research on the experiences of young migrant men, which suggests that the Gardaí and other public servants should undergo anti-racism training.
Against this background, the following post addressing the long-term question of Ireland?s approach to the ?integration? of migrants may be of interest. It was written as a guest column for ?Immigrant News?, the ICI?s daily epaper.
In May, the Immigrant Council of Ireland and the Migrant Integration Policy Index (MIPEX) launched the MIPEX 2015 findings for Ireland, which involved a comprehensive measurement of policies to integrate migrants and the outcomes of these policies. We did not fare well, ranked 19th of 38 countries surveyed and below all Western European countries except Austria and Switzerland. These results came only a short time after census figures suggested that the Irish school system is becoming increasingly segregated and ghettoised.
The Immigrant Council of Ireland is now calling for (among other things) the development of a comprehensive National Integration Strategy. So where does Irish integration policy currently stand, and where should we go from here?
The Rise and Fall of Integration Strategy in Ireland
To date, integration policy has been largely piecemeal, with various government departments and public bodies producing diversity and intercultural strategies (for example, intercultural strategies in the areas of education and health, and a diversity strategy for An Garda Síochána). The first formal strategy for integration was produced in 2008 by the newly-established Office of the Minister for Integration. This document, called ?Migration Nation?, outlined the principles intended to underpin Irish integration policy.
The central features of the policy statement are its mainstreaming approach to the provision of services for new communities; its situation of integration policy in the context of the general social inclusion and equality framework; and its insistence on a two-way model of integration. Other notable features include the emphasis placed on respect for cultural differences and the lack of emphasis on identity or ?values? issues. The practical areas of language education; interpretation and translation; information provision; and funding arrangements information are identified as the key areas crucial to integration success, rather than areas relating to culture or values. This was welcome, especially when seen in the broader European context of a retreat from multiculturalism and an exclusionary focus in integration policy on ?shared values?.
While, broadly speaking a mainstreaming, intercultural approach drawing on EU integration policy is endorsed in the policy documentation, a more developed specific vision of integration still seems to be lacking. Aside from Migration Nation, the only integration-specific document to emanate from the Office for the Promotion of Migrant Integration (?OPMI?) related to the specific group of resettled refugees.
Since its establishment, the OPMI?s role has been centred on facilitating integration at grassroots level through the funding of sporting groups, NGOs and faith-based community groups rather than developing an overarching integration framework which could be used to inform the action of other state bodies. It also has ?a cross-Departmental mandate to develop, lead and co-ordinate migrant integration policy across other Government Departments, agencies and services?. The decentralised approach taken to date to integration is reflected in the focus on the development of integration strategies by local authorities rather than by the OPMI. This is a rather narrow approach to integration which suggests a political reluctance to tackle the deeper issues, particularly those which might require public spending.
The main reason for the lack of progress in the field of integration has been the impact of the financial difficulties which Ireland has been experienced since late 2007. The financial crisis and dramatic rise in unemployment resulted in April 2009 in a return to net emigration for the first time since 1995. These developments have meant that integration is no longer as immediate an issue as it was between 2000 and 2007 and it slipped down the political agenda. The harsh budgetary measures accompanying the financial crisis have impacted on the equality and integration infrastructure through, for example, the closing of the National Consultative Committee on Racism and Interculturalism and the cuts in funding for the Human Rights Commission and Equality Authority (now the Irish Human Rights and Equality Commission).
The plans set out in Migration Nation to establish new integration structures, including a standing Commission on Integration and a Task Force to establish future policy needs, were shelved, and the Ministerial Council on Integration is defunct. The provision of language teaching was hit hard by budget cuts, and immigration reform under the Immigration, Residence and Protection Bill 2010 was abandoned. In 2011, the position of Minister for Integration itself was abolished. The combined effect of these measures has meant that integration policy has effectively been on ?pause? for the last number of years.
A New Integration Plan: The Importance of Immigration Law Reform
There is clearly a need for a more developed, nuanced and long-term approach to integration than that in existence in Ireland at present. This has been recognised by Government, and a new integration strategy is expected later this year. The current review of integration strategy has involved a public consultation and engagement with key stakeholders.
As mentioned already, the absence of focus on ?cultural integration? in Migration Nation was hugely positive and should be replicated in the general philosophy of any new strategy. However, a key element of the development of a comprehensive strategy is that it also needs to be acknowledged that ?integration? encompasses core constitutional and other legal rights and issues, including a secure migration status and family rights. Any new integration strategy must expressly recognise the impact of immigration law on integration, and be accompanied by immigration reform, in order to be meaningful. While Ireland scored well in MIPEX in the areas of political participation and anti-discrimination, a particular area of weakness identified was the discretionary nature of access to family reunification and long-term residence. We currently have among the most discretionary (and least favourable) policies in the developed world in these spheres. These entitlements need to be placed on a secure, transparent, statutory footing to ensure certainty, efficiency and equality of access.
Unless the importance of migration and citizenship law to integration is formally recognised, it is unlikely that Ireland will progress beyond being a country which is, to use MIPEX?s scoring system, ?halfway favourable? to the integration of immigrants.
Yvonne Daly - Tue Jul 07, 2015 09:00
The School of Law and Government at Dublin City University (DCU) invites applications for its taught Masters in law (LLM). The School is unique in the Irish academic legal landscape for its core ?law and society? research theme and its focus on socio-legal studies. DCU?s LLM in Law specifically sets out to be different from(...)
The School of Law and Government at Dublin City University (DCU) invites applications for its taught Masters in law (LLM). The School is unique in the Irish academic legal landscape for its core ?law and society? research theme and its focus on socio-legal studies. DCU?s LLM in Law specifically sets out to be different from other taught Masters in law. It offers a fantastic range of innovative, challenging modules and aims to enhance and expand not only students? substantive knowledge of the law but their practical legal skill-sets. The LLM programme team is dedicated to using innovative, experiential and skills-based pedagogical strategies in order to facilitate students with an active and student-centric learning experience. This LLM is designed to deliver strong potential employees to the marketplace, and strong critical thinkers to the research community. If you want to deepen your ability to examine and critique the law in its societal context and increase your applied legal competencies then this LLM is for you.
DCU?s LLM in Law is delivered as a one-year, full-time programme. Students will take one core year-long module in Legal and Socio-Legal Research Skills. This will provide students with important skills to analyse and critique the legal research of others, along with a robust grounding for their own completion of an independent research Dissertation (15,000 ? 20,000 words). In addition to the core Legal and Socio-Legal Research Skills module and the Dissertation students can choose four optional modules (two in each semester).
Full details on these modules (which include international law modules, commercial law modules, socio-legal and public law modules) along with further information on the LLM programme are available here.
Applications are via www.pac.ie and the closing date is July 31st 2015.