Penetrating States of Denial: Accounting for Conflict Related Violence in Northern Ireland

We are pleased to welcome this guest post from Dr Aoife Duffy, Lecturer in International Human Rights Law at the Irish Centre for Human Rights, National University of Ireland Galway

On 10 November 2015, a 66-year-old ex Lance Corporal of the British Army’s Parachute Regiment was arrested in relation to the killing of three individuals who died during Bloody Sunday, which resulted in the deaths of 14 civilians following an anti-internment march in Derry on 30 January 1972. Accounting for conflict related violence and killings committed by the security forces in Northern Ireland has been problematic due to the hegemonic position of official discoures related to conflict, underpinned by various denial strategies, as outlined by Stanley Cohen in his seminal work, States of Denial: Knowing About Atrocities and Suffering. In Northern Ireland, a structure of denial was sustained at various points throughout the UK administration and the military-security establishment, including through close cooperation between between senior officers in the British army and the Attorney General regarding the prosecution of soldiers on serious criminal charges. The General Officer Commanding (GOC) the British Army in Northern Ireland, Sir Frank King, met with the Attorney General on 8 January 1974 and subsequently wrote to one of the most senior officers in the British Army, the Adjutant General Sir Cecil Blacker, based at Ministry of Defence offices in Whitehall, about the meeting. In short, General King was reassured by the position taken by the Attorney General, who informed him in no uncertain terms that ‘not only he himself but also the DPP and senior members of his staff, having been army officers themselves, having seen active service and knowing at first-hand about the difficulties and dangers faced by soldiers, were by no means unsympathetic or lacking in understanding in their approach to soldier prosecutions in Northern Ireland.’ Approximately 350 deaths were caused by state security forces between 1969 and 1994, and the army were responsible for 90% of these killings between 1969 and 1974. 54.1% of those killed by the security forces in Northern Ireland were civilians and 84% of these victims were Catholic. General King was informed that only 10% of the cases submitted to the DPP were prosecuted; that borderline cases (he cited the shooting of Joseph McCann) were routinely dropped, ‘unless there was evidence of brutality or callousness on the part of that soldier or evidence that the soldier had clearly, unjustifiably and substantially overstepped the mark in the use of force.’ Continue reading “Penetrating States of Denial: Accounting for Conflict Related Violence in Northern Ireland”

Penetrating States of Denial: Accounting for Conflict Related Violence in Northern Ireland

Morrissey on the Assisted Decision-Making (Capacity) Bill and Advance Directives

Dr. Fiona Morrissey completed a PhD in mental health law at NUI Galway in 2014. She is a member of a number of expert panels on mental health and capacity law reform and acts as a reviewer for a number of international journals and the World Health Organisation (WHO). Fiona sits on the National Advisory Committee (Research, Impact and Evaluation workgroup) for Sage (Support & Advocacy Service for Older People). Her national study on advance healthcare directives can be accessed at http://www.sciencedirect.com/science/article/pii/S2352552515001048

Assisted Decision-Making (Capacity) Bill: Why Equality is needed in the Proposed Laws on Advance Healthcare Directives. Some decisions are less equal than others

The Assisted Decision-Making (Capacity) Bill 2013 is due before the Seanad on the 9th of December and is scheduled to be enacted into law this year. This is an important piece of legislation, which may apply to any one of us now or in the future. The Bill aims to secure supports and safeguards for any person who may have difficulty making a decision due to a disability, Alzheimer’s disease, a road traffic accident or a period of ‘mental distress’. The legislation includes provisions for advance healthcare directives, which will allow us to specify future treatment or other life choices in a legal document and/or to appoint a trusted decision-maker, in the event we have difficulty communicating or making a decision for ourselves in the future. In these circumstances, the advance healthcare directive will help your doctor or a family member understand your wishes regarding medical treatment or other life choices and specify who you trust to communicate these wishes or to make decisions in accordance with your beliefs and values.  Continue reading “Morrissey on the Assisted Decision-Making (Capacity) Bill and Advance Directives”

Morrissey on the Assisted Decision-Making (Capacity) Bill and Advance Directives

Carroll on Marrying youth and politics: more than a click away

Aengus Carroll (LL.M) is co-author of State Sponsored Homophobia 2015, a global survey of law for the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA). He is ILGA’s member on an Expert Steering Group to the United Nations Development Program (UNDP) and the Office of the High Commissioner for Human Rights (OHCHR) on a Global LGBTI Inclusion Index to run in line with the new Sustainable Development Goals (2015-2030).

Although Irish people of all ages voted yes in the marriage equality referendum on 22 May this year, the numbers demonstrate it was the youth vote that assured its success. Such youth turn-out was unprecedented in Irish political life, and flies in the face of conventional political wisdom that young people are apathetic.

Now that the largely untapped youth voice has clearly resounded across this country and with a general election on the horizon, a variety of campaigners and political parties are looking at how to quickly harness that voice again. Youth mobilisation has become a new holy grail in Irish politics. But what campaigners and politicians fail to see is that the youth mobilisation around the marriage equality referendum was the result of over a decade of youth empowerment and infrastructure building in towns and villages across the country by BeLonG To – Ireland’s LGBT youth organisation. Continue reading “Carroll on Marrying youth and politics: more than a click away”

Carroll on Marrying youth and politics: more than a click away

The Commission of Inquiry: Israel’s Obligations as Belligerent Occupant in the Gaza Strip for Post Conflict Reconstruction

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.

The Commission of Inquiry: Israel’s Obligations as Belligerent Occupant in the Gaza Strip for Post Conflict Reconstruction

The Commission of Inquiry: Israel’s Accountability for War Crimes during Operation Protective Edge and Operation Brothers Keeper

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.

The Commission of Inquiry: Israel’s Accountability for War Crimes during Operation Protective Edge and Operation Brothers Keeper

PILA Seminar: The Duty of the State in Constitutional Cases– 7 July, Dublin

PILAFollowing their recent book, ‘Public interest litigation and social change in South Africa: Strategies, tactics and lessons’, Gilbert Marcus SC and Nick Ferreira are visiting Dublin to share learning in public interest litigation.

Date:                     7 July 2015

Time:                    5.30pm – 7pm

Venue:                 The Morrison Hotel, Lower Ormond Quay

Marcus and Ferreira will explore the duty of the State in constitutional cases, followed by a panel discussion with Michael Lynn SC and Noeline Blackwell of FLAC on the experience of public interest litigators in Ireland. The seminar will be chaired by former Attorney General, Paul Gallagher SC.

This event is a must for those interested in how to best use rights, law and litigation to advance social change. Continue reading “PILA Seminar: The Duty of the State in Constitutional Cases– 7 July, Dublin”

PILA Seminar: The Duty of the State in Constitutional Cases– 7 July, Dublin

The EU and the 25th anniversary of the UN Migrant Workers Convention

IJELWe are delighted to welcome this guest blog by Alan Desmond. This blog first appeared on www.crimmigration.com.

As we approach the 25th anniversary of the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW), Migrants Matter, a group of postgraduate students and young professionals concerned with the treatment of migrants in Europe, is calling on Dimitris Avramopoulos, the EU Commissioner for Migration, Home Affairs and Citizenship, to support ratification of the ICMW by EU Member States.

Adopted by the UN General Assembly on 18 December 1990, the ICMW is one of the ten core international human rights instruments. It is similar to some of the other core human rights treaties like the Convention on the Rights of the Child (CRC) in that it takes the rights set out in the two treaties of general application, the ICCPR and the ICESCR, and codifies and elaborates on them in relation to a particularly vulnerable category of persons, in this case migrant workers and members of their families. What distinguishes the ICMW from the other core instruments is that it is the only one of the ten which has not yet been signed or ratified by any of the 28 EU Member States. Continue reading “The EU and the 25th anniversary of the UN Migrant Workers Convention”

The EU and the 25th anniversary of the UN Migrant Workers Convention

Are There Limits to Absolute Privilege?

We are delighted to welcome back Dr. Jennifer Kavanagh of Waterford Institute of Technology with this guest post on the role of the Defamation Act 2009 in discussions about media reporting of Dail privilege.

Introduction

The issue of parliamentary speech and protecting both the speech rights of members of the Oireachtas and the media are important aspects of civil and political rights. The ability of members of the Oireachtas to raise matters of public importance without the ‘chilling effect’ of defamation law is a common feature of western democracies based on a common law tradition.

However, the ability for parliamentary speech which is covered by absolute privilege to permeate the media without restriction and for the media to act in their role as the ‘educators or public opinion’ was questioned. This issue has been highlighted by the recent restriction placed on the reporting of the statements of Catherine Murphy to the Dáil by RTÉ. Even though Mr Justice Donald Binchy has clarified and released a redacted version of the High Court judgment, the impact on political speech of Oireachtas members remains.

 The Role of Oireachtas Members and the Need for Absolute Privilege

The members of the Oireachtas are there to theoretically hold the Government to account. One fundamental part of their role is to air issues of public importance. For this reason it is essential that their speech is not subject to the review of the courts. The protection is known as absolute privilege and means that the statement of members of the Oireachtas in the chambers of either the Dail or the Seanad cannot be considered by a court.

This principle is enshrined in the Constitution. Members of both Houses of the Oireachtas are protected by the Constitution from Court actions in relation to what they say in the House. This type of protection is widely found in democratic states and is considered an important foundation stone for an effective parliament. The Irish version draws heavily from provisions in Westminster. The original version of the protection was incorporated in the Bill of Rights which placed utterances by members of parliament outside of the scope of the courts. Under Article 9 ‘…freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’ Under the provisions of Article 15.13 a TD “shall not, in respect of any utterance in [the Dáil], be amenable to any court”. However a member can be asked to account for what they have said to the House itself.

The provisions of Article 15.13 are reflected in the Defamation Act 2009 which includes what is known as ‘absolute privilege’ in section 17 which states that any statement made in either House is protected. The principle which underpins parliamentary privilege is that members of either house of parliament should be able to raise issues in the public interest without fear of court action.

The rules for debate in the Oireachtas are set by means of Standing Orders and is provided for under Article 15.10 and set out a procedure for the amendment of the Dáil record to reflect a complainant’s side of the story when an abuse of privilege has been found. This procedure under the provisions of Standing Order 59 have proved useful for those that are aware of the process in the past.

The Limits of Absolute Privilege

However there is an issue with the protection reporting such speech in the construction of section 17. If the parallel restriction for speech in court and the reporting of such speech is considered and then contrasted to the protections for parliamentary speech it is clear that there is actually no absolute privilege for reporting the Dáil. This is even more striking when the previous legislation is consulted. Second Schedule, Section 24 of the Defamation Act 1961, provided expressly for the protection of speech when reported from the Dáil.

A fair and accurate report of any proceedings in public of a house of any legislature (including subordinate or federal legislatures) of any foreign sovereign State or any body which is part of such legislature or any body duly appointed by or under the legislature or executive of such State to hold a public inquiry on a matter of public importance.

Impact of Inconsistency

The position of parliamentary speech has now been re-established with the restatement of the order from the High Court judge. However the inconsistency between the drafting of both the provisions leaves the position of the media in doubt. The previous situation where media organisations could not report on the proceedings of the Dáil even though the same statements were freely available on the Oireachtas website and transmissions, showed how the position of the media as ‘organs of public opinion’ were unable to act in their constitutionally mandated role as ‘educators of public opinion’ were unable to tell citizens what transpired in their national parliament. Until the gap between both the 1961 and 2009 Defamation Acts are addressed the possibility of action against the media for statements made in the Dáil will continue.

Are There Limits to Absolute Privilege?

The State’s Positive Obligations under the ECHR in the context of Irish Prisons

MountjoyWe are pleased to welcome this guest post by Conor Talbot. Conor is a PhD Candidate at the European University Institute, Florence, and an Associate Researcher at the Department of Economics, Trinity College Dublin. He can be contacted at ctalbot@tcd.ie.

 

Continue reading “The State’s Positive Obligations under the ECHR in the context of Irish Prisons”

The State’s Positive Obligations under the ECHR in the context of Irish Prisons

O'Conaill on the 'Logic' of 'No' #marref

Don Photo smallWe are pleased to welcome this guest post from Donnchadh O’Conaill (left). Donnchadh is a Lecturer in Metaphysics at the University of Leeds. In the autumn he will be moving to Helsinki to take up a postdoctoral position on The Epistemology of Metaphysics project.

The referendum on same-sex marriage has thrown up a variety of arguments from both sides, including empirically-based claims and discussions of specific points of law. Writing as someone from a philosophical background, I was more interested in the logical manoeuvrings on either side. The pattern of the debate has been for the No side to produce the wider variety of arguments; against appeals to equality, they have offered a number of reasons to justify the different treatment afforded to same-sex and opposite-sex couples. In what follows I shall discuss three arguments offered by proponents of a No vote.

The issue of surrogacy and the possible harms to children and surrogate mothers were prominently discussed in the final weeks of the campaign. By and large the Yes side have dismissed this as a red herring: there is at present no law covering surrogacy in Ireland, and the proposed constitutional amendment would not introduce one. Prof. William Binchy introduced a new twist on this worry. Rather than arguing that surrogacy should be prohibited, he suggested that a Yes vote could prevent a future government from introducing such a prohibition:

The syllogism that a court would confront is as follows: married couples have a right to procreate; married couples include two gay men, who can procreate only by means of a surrogate arrangement; therefore, a law restricting or, a fortiori, banning such an arrangement would be unconstitutional as it would prevent the gay men from procreating by the only means open to them (Irish Times, May 12th).

There is little philosophers like better than a good syllogism. Prof. Binchy’s isn’t a bad one, but I fear it is not the syllogism he needs. The first premise, that married couples have the right to procreate, has been questioned by Oran Doyle and Conor O’Mahony; certainly, it does not seem as secure as Prof. Binchy’s article might lead one to believe. But let us grant it, and let us assume also that this right extends as far as a right to access surrogacy if that is the only means by which a couple can procreate. Given the first premise, in the event of a Yes vote Prof. Binchy’s conclusion would follow. The trouble is that this conclusion has little to do with the result of the referendum. If married couples have the right to procreate, and if this right extends as far as a right to access surrogacy by those who cannot procreate in any other way, then this right must already be enjoyed by those heterosexual married couples who, for whatever reason, cannot procreate biologically and cannot adopt children. If Prof. Binchy’s syllogism holds true in the case of two gay men, then it seems it must hold true in the case of some heterosexual couples also. In that case, the hands of any future government have already been bound, regardless of the result of the referendum.

A more unusual argument was put forward by Prof. John A. Murphy, who described the proposed amendment as “constitutional nonsense” (Irish Times, May 13th). He suggested that

if the referendum is passed, Article 41, heretofore unambiguously and exclusively heterosexual, will also recognise a homosexual couple “as the natural primary and fundamental unit group of Society . . . a moral institution possessing inalienable and imprescriptible rights , antecedent and superior to all positive law”. Moreover such a couple will be guaranteed protection by the State “as the necessary basis of social order and as indispensable to the welfare of the Nation and the State” (Article 1.2).

It is not entirely clear how Prof. Murphy’s argument is meant to proceed. On a literal reading, he is suggesting that if the referendum is successful, the homosexual family or a homosexual couple would itself become the primary and fundamental unit of society. This would be an outlandish result, but the idea that this is what would happen should the referendum be passed is based on a bizarre misreading of the constitution. Article 41 uses the term ‘the Family’, which is an abstract singular term – it does not refer to any particular family or to any group of families, but to the social institution of that name. At present under Irish law this institution includes married heterosexual couples raising their own children, married couples raising children they have adopted, and married couples who have no children. In the event of a Yes vote this institution would include homosexual as well as heterosexual couples. That is, homosexual families would be legally recognised as belonging to ‘the natural and primary unit group of Society’. This is very different to saying that a homosexual couple would itself become this unit.

It may be that Prof. Murphy meant to express a different thought: that in the event of a Yes vote, the Family would include homosexual couples, but that it is “grotesque nonsense” that such a couple could be among the fundamental units of society. This reading has the advantage of not attributing to Prof. Murphy the bizarre interpretation of the constitution I have just outlined, but as an argument against same-sex marriage it is scarcely in better shape. For Prof. Murphy owes us a reason for thinking that it is nonsense for a homosexual couple to be among the fundamental units of society. The fact that such a couple would be incapable of procreating or raising their own children would not suffice, given that numerous childless heterosexual couples already belong to the institution of the Family. Of course, one might say that such couples do not deserve any special constitutional status, but in that case the result of the referendum would again be irrelevant to one’s concerns.

The final argument I shall consider has been put forward by a number of advocates on the No side; it can be understood as concerning the meaning of marriage, or the relationship which is claimed to hold between marriage and procreation. A number of commentators have suggested that if same-sex marriage is legalised, this relationship would be weakened or even broken completely. Some critics have denied that there is any such relationship, but it is more interesting to assume that one does exist, and to inquire into what its nature might be.

Whatever the relationship between marriage and procreation is, it is surely not the case that the ability or willingness to procreate is a necessary condition for a couple to be married. Rather, the suggestion must be that the relationship between procreation and the social or legal institution of marriage holds in such a way that couples who are neither willing nor able to procreate can still marry. The problem is that on this understanding, it is hard to see how allowing same-sex couples to partake in the institution would weaken or break this relationship. The institution of marriage would still provide precisely the same opportunities and support for those who wish to procreate within it – it would just be open to a slightly larger number of people who cannot (by themselves) procreate.

There are a number of possible responses available to the proponent of the procreative link, but the main one which has been put forward in the referendum debate is that marriage must be oriented towards procreation, even if it happens that procreation does not occur or is not biologically possible. For instance, Bishop Kevin Doran claims that “What makes marriage unique is the orientation of this committed relationship to the procreation and care of children”. The suggestion is that same-sex relationships could not be oriented towards procreation, though they may share many other features with marriages. If this is correct, then it would simply be a category error to speak of same-sex marriage.

One interesting point about this argument, which has not to my knowledge been commented on, is that for someone who accepts it, the appropriate response to the referendum would not be to vote No, but to abstain on the grounds that the very idea of a popular decision on this issue makes no sense: it would be like deciding by vote whether or not 2 + 3 = 5. Leaving that aside, the orientation argument suffers from other problems. One is the danger of conflating the nature of the social or legal institution of marriage with the nature of particular marriages. It may be that the institution of marriage is oriented towards procreation (for instance, it may be because of the link between marriage and procreation that the State has a legitimate interest in supporting marriage). It does not follow from this that each individual marriage must itself be oriented towards procreation. The institution of the public library is oriented towards providing educational resources, or perhaps just entertainment, but people use public libraries for all manner of reasons, some of which have nothing to do with these noble goals.

Could it be argued that not only is the institution of marriage oriented towards procreation, but so too must any individual marriage? Maybe so, but again the trick is to spell this out in such a way that homosexual couples could not possibly be oriented towards procreation, but a heterosexual couple who are biologically incapable of procreation are. For example, Patrick Treacy & Rik van Nieuwenhove note that only heterosexual relationships “can bring forth new life”, and that “only this union is intrinsically fruitful in biological terms” (‘The Integrity of Marriage’). But not all heterosexual relationships can be fruitful in this way. From the fact that only (some) heterosexual couples are capable of unassisted reproduction, it does not follow that all heterosexual couples deserve different legal treatment to any homosexual couples.

If there is a relationship between marriage and procreation, it would appear to concern the institution of marriage, and it is most likely a link such as the following: procreation and childrearing are the reason (or one of the main reasons) why marriage was established as a social institution and continues to enjoy legal status and protection. But while this is a plausible account of the relation between marriage and procreation, it tells us little about who is (or is not) entitled to avail themselves of this institution. And that, in effect, is what the referendum concerns.

 

O'Conaill on the 'Logic' of 'No' #marref