Responding to the Refugee Crisis: Examining the Broader Systemic Context in Ireland

Ireland’s role in responding to the refugee crisis has been the subject of a lot of media attention in recent weeks and months. In particular, the provision of search and rescue assistance by the Irish Navy, and the agreement to receive up to 4,000 asylum seekers as part of the EU resettlement and relocation programme are to be broadly welcomed. In addition, the allocation of funds in Budget 2016 to support relocated asylum seekers has been cautiously welcomed  by the Irish Refugee Council. Leaving aside the sufficiency of the Irish and EU response overall (for example, see commentary on the EU relocation programme by Steve Peers here), important questions remain as to how relocated asylum seekers will be treated on arrival in Ireland.

How will the State avoid repeating the mistakes of direct provision (on which, you can access posts by Liam Thornton and others here)? Moreover, how is it proposed to deal with asylum seekers already in the system, or those who arrive in Ireland spontaneously? Will the recommendations of the Working Group on Improvements to the Protection Process (critiqued by Liam here) in relation to reception of asylum seekers be fully implemented for new arrivals as well as those already seeking asylum in the State? What will happen to relocated asylum seekers who are refused refugee status?

All of these questions form part of the bigger picture of the State’s approach to asylum and immigration matters. In this context, a number of cases which seem to highlight a lack of compassion and humanity in the administration of immigration and naturalisation law come to mind.

Appeals to Minister for Justice’s humanity in PO

In PO v Minister for Justice and Equality [2015] IESC 64, the Supreme Court refused to restrain the deportation to Nigeria of a woman and her nine-year old son, who was born, raised and educated in the State (although was not an Irish citizen). In the context of a prolonged period of unlawful residence in the State (the applicants had had no right to be in the State since 2010), the Supreme Court found that they had no entitlement to remain in Ireland on the basis of Article 8 of European Convention on Human Rights, which protects private and family life.  Given its decision that “no legal rights” were involved, the Supreme Court could not disturb the Minister for Justice’s decision to deport the applicants.

However, a notable feature of the case was the Supreme Court’s appeal to the Minister to exercise her discretion in a humane way, given that “real issues of ministerial discretion may arise in this case, which involve an 8 year old child, and his mother, both of whom have now resided in this State for well nigh on 9 years.”  Laffoy J agreed with these observations of MacMenamin J.  Charleton J also commented: “As a matter of humanity, but not as a matter of law, it is for the respondent Minister to ask herself how she feels it appropriate to consider this matter in the exercise of her discretion.” These comments effectively raise questions as to the ethics of the State’s approach to deportation proceedings.

Impatience in the Supreme Court in Sulaimon

The Supreme Court’s impatience with administrative procedures and decision-making had been clearly expressed in Sulaimon v Minister for Justice, Equality and Law Reform  [2012] IESC 63, in which the Court severely criticised the “contrived” nature of ministerial and departmental attempts to deny a young boy birthright citizenship, on the basis of their calculation of the residence of his father.

Here, a father sought to claim birthright citizenship for his son on the basis that he (the father) had satisfied the three year lawful residence period in the State at the date of the son’s birth. His application was refused on the basis that he was three days short of the required time period. The case turned on a technical point of immigration law concerning the date on which the father’s legal permission to remain had been granted, with the Supreme Court finding in favour of the child that a letter received by the father constituted the permission to remain, rather than the date on which the relevant stamp was placed in the father’s passport.

The severity of the criticism which was levelled at the Department and the Minister by the Court in Sulaimon, in terms of both the handling of the application and the subsequent litigation, was striking. Hardiman J was particularly vocal, stating (at para. 24):

I simply do not understand why so great an effort has been made over so long a period to deprive a small boy of citizenship in the country where he has been permitted to reside all his life, a citizenship enjoyed by his father and his sister. If there is a point to the pain and anxiety caused to the child’s family, the expense to which they have been put and the taxpayers’ money which has been spent, it entirely eludes me.

The correspondence received by the father was described by O’Donnell J as “confused and confusing”, and the conduct of the litigation, during which “highly contrived and artificial arguments” were advanced on behalf of the Minister, was seen as unacceptable.

Formalism, legalism and rigidity: the basis for a generous response to refugees?

PO and Sulaimon seem to highlight a legalism, formalism and rigidity in the administrative approach to leave to remain and naturalisation processes. These features are also in evidence in the “discretionary” areas of the more tightly-regulated field of asylum, as shown in a series of judicial reviews in which ministerial decisions on family reunification for refugees have been overturned. Among these was AMS v Minister for Justice and Equality [2014] IESC 65, in which the Supreme Court found that the approach taken by the Minister in refusing family reunification to the mother and minor sister of the applicant (on the basis of the potential financial burden which they would be on the State) was disproportionate. This was the second time that a decision of the Minister in respect of the same case was found to be disproportionate by the courts, the High Court having quashed the first refusal.

It is difficult to see how those due to arrive in Ireland (let alone individuals currently seeking protection or leave to remain, or those who arrive spontaneously at our borders) can be dealt with in a caring, rights-centred manner in the context of a system which demonstrates these features. However, perhaps the outpouring of public sympathy for the plight of those fleeing violence and persecution will provide the impetus for a shift in culture in this regard. Fundamental reform (preferably abolition) of the direct provision system (the weekly allowance of 19.10 per adult and 9.60 per child remains untouched after Budget 2016); the publication of the International Protection Bill (which would start a process of debate and critique of the Bill); and clarification on the procedures which are to be applied to relocated asylum seekers would seem to be a good start.

Why Thinking about ‘Effectiveness’ Matters for Rights in Counter-Terrorism

It is striking that counter-terrorism tends to be treated as an informal exception to the ‘normal’ expectations of public policy and administration: measures are rarely subjected to full ex post facto review with appropriate access to information, evidence-based law- and policy-making is more or less absent, and the classic ‘learning loop’ ‘good old fashioned public administration’ seems rarely to be completed. This has clear implications for rights: the debates about necessity, impact and effects often remain at the level of rhetoric and key claims are unsubstantiated, while counter-terrorist measures frequently violate individual rights and act as the platform for systemic ‘downgrading’ of the content of core rights such as fair trial and privacy. Addressing these patterns requires systemic, heuristic and operational reform, but one starting place is the concept of ‘effectiveness’ and the role it plays in counter-terrorism discourses.  Continue reading

Call for Submissions-Lacuna Magazine

Lacuna is an online Magazine published by the Centre for Human Rights in Practice which challenges indifference to suffering and promotes human rights. Its aim is to fill the gap between the short-term immediacy of daily journalism and long-term academic analysis.
Lacuna is now revisiting the theme of protest and will be publishing a Special Issue on this theme in February 2016. We are now seeking submissions, with a closing date of December 31st 2015.
All forms of writing and visual art will be considered: fiction, non-fiction, poetry, film, animation and photography. You may wish to investigate a particular instance of protest, to provide commentary, reportage or expert analysis of a protest-related theme. Or you may wish to review a book, a film, a piece of music, art or theatre connected to protest.
We are interested in exploring the diverse spectrum of forms of protest: boycotts; marches; strikes;  sit ins; direct actions; online petitions; songs; stories and many more. What makes protests in all of these forms enticing, legitimate, rewarding, fruitful…? What are the wrongs that provoke our anger and how do we take action in response? We are particularly interested in work that seeks to uncover peoples’ motivations for protesting, what they seek to achieve by protesting, and/or the outcomes of their actions.

What Women Don't Need

This is an edited version of a 10 minute informal talk I gave at the recent Coalition to Repeal the 8th conference, ‘What Women Need’.

The theme of this conference is ‘What Women Need’. My aim today is to tell you something about the sort of abortion legislation women do not need, but may well get, once the 8th Amendment is repealed. I do think that it would be possible to draft transformative post-8th legislation to regulate abortion in Ireland; legislation which might help to bed in women’s access to  care as part of a long-term process of movement to lightly regulated free, safe and legal abortion (see a recent talk here). But my topic today is something else.

I want to talk instead about the initial suggestions we have seen from members of Fine Gael and Labour about the sort of abortion legislation they would support if they were in office in a future government. These suggestions might be called ‘moderate’ or ‘middle ground’. They are made by TDs who tend to preface their statements with phrases like ‘I’m pro-life but…’ or ‘I am not in favour of abortion on demand but…’. My aim today is to provide an analysis of the legal imaginary underpinning that purported ‘middle ground’ – a ‘spotter’s guide’ to its key features.

I need hardly remind you, of course, that any proposal which does not comply fully with international human rights norms, cannot properly be described as ‘moderate’, except perhaps from the perspective of the established exceptionalist Irish approach to abortion law, which assumes that only a brutally conservative form of regulation can give effect to the Irish people’s supposed deep moral investment  in how pregnant persons conduct their lives.  Any legislation which does not provide for a period of access to abortion at the woman’s request in early pregnancy is far from the European middle ground. If you want to know what minimalist, middle ground legislation, which takes account of the complexity of the abortion issue and the full panoply of the state’s obligations under various bodies of human rights law,  might look like, I suggest the ‘General Scheme of the Abortion Access Bill 2015‘,  which a group of us drafted for Labour Women (but which they decided they could not adopt).

It is very interesting to watch the advance process of legitimating the supposed ‘middle ground’ unfold. Yesterday, the Taoiseach announced, invoking the usual abhorrence of ‘abortion on demand’, that he would not commit to a referendum on the 8th in the lifetime of the next government without giving consideration to what would replace it.  This sort of talk is something of a trend for this government. It repeatedlyexceptionalises abortion as a uniquely divisive and profound moral issue. In parliamentary debate the government presents pro-choice proposals for speedy reform as ill thought out, irrational,  and undemocratic. The government says it will not be ‘rushed’ when pro-choice TDs ask it to respond to devastating cases.  Often, the government – somewhat paradoxically – invokes the ‘bitter experience’ of thereferendum that lead to the Eighth Amendment to argue against its speedy replacement.

Note that the Taoiseach didn’t invoke conservative Catholic ideology yesterday (though his reference to ‘abortion on demand’ as the thing to be avoided implies a profound distrust of women’s decision-making). Instead he takes a supposedly ‘neutral’ approach relying on the assumption that repeal of the 8th generates a void or gap which must be filled, and that the filling of that gap will be a uniquely complex task. In his reliance on this discourse of uncertainty, the Taoiseach is able to present himself as steady and responsible. At the same time, he has not made any firm commitment to a process of research, consultation and law reform towards appropriate legislation.  He won’t commit to a referendum, in other words, for fear of an imagined looming void which he refuses to address. (Of course, there is no void per se. The PLDPA and associated medical law would remain in force until challenged or repealed, and the government could in any case prepare legislation for implementation to be brought into force immediate aftermath of the removal of the Amendment from the Constitution. If there is dangerous uncertainty in the law, it is the actually-existing dangerous uncertainty of the 8th Amendment-X case- PLDPA regime.)

Moreover, the Taoiseach’s focus on uncertainty works to close off discussion of the positive dimensions of the post-8th legal landscape. He offers no positive assessment of the shape of the constitution in women’s rights terms once the 8th Amendment is repealed. He does not point out how difficult it would be to justify criminalisation of abortion, for example, if the 8th Amendment could no longer be invoked to provide supposed constitutional impetus. He offers no sense of the tremendous potential – referenced by Anne Furdei of BPAS at this conference – for Ireland to use repeal to propose a new kind of abortion law, which demonstrates attention to and learning from the creative legal strategies which have been developed in other jurisdictions in the decades since the Amendment passed.

Having erected the spectre of overwhelming uncertainty, the ‘moderates’ will propose legislation which they claim is designed to provide clarity and reassurance to an unsettled public. You should look out for three key features in the drafting of any such legislation.

1) A retreat to the familiar and 8th Amendment lite or PLDPA plus. The discourse of uncertainty discourages creative research-based engagement with new legal approaches to the regulation of abortion, and encourages reliance on established, if dangerous, legal resources. The point of repealing the 8th Amendment is to rid our law of the unworkable, foetocentric rules it has been allowed to generate, and replace them with a regime which gives effect to women’s constitutional and other human rights. If language and concepts inspired by existing law are allowed to survive, zombie-like, the campaign for repeal then we must wonder whether repeal can be of more than symbolic importance. The Labour party’s recent proposals for a post 8th Amendment abortion law contain a disturbing example of retention of X case principles. These proposals suggest that a woman would be entitled to an abortion in early pregnancy if she could demonstrate a ‘real and substantial risk’ to her health. The phrase ‘real and substantial risk’ is a direct borrowing from the X case. We know that this phrase has proved very difficult to interpret in cases in which women’s lives are at risk and there is no reason to believe it will fare any better outside of the life-saving context. The borrowing of this language indicates the extent of the 8th’s impact even on supposedly liberalising legal thinking – it demonstrates a mindset in which the unborn remains a substantive legal subject, and women must be held accountable for any decision with serious implications for the survival of the pregnancy. Where we might expect to see substantive exploration of how general commitment to the protection of foetal life should be balanced against women’s many constitutional rights (or indeed reference to the concrete medical conditions which impact women’s pregnancies and which require a response from the law) we find instead an uninterrogated presumption that women come second, even the the absence of the 8th.

2) Restrictive language masquerading as providing certainty. If uncertainty is presented as the problem which abortion legislation must resolve, then politicians may be tempted to assume that precision in language is the solution. The search for black and white language is seductive but often misguided – particularly if new legislation continues to follow a medical indications model (under which a woman can access an abortion only because she or her foetus can be diagnosed with a particular type of medical condition rather than because she wants one). This was the difficulty whichbedevilled Clare Daly’s fatal foetal abnormality Bill  with TDs who opposed the Bill insisting that abortion could only be constitutional if a doctor could say with certainty that the foetus would not survive birth – an impossible standard.

3) Legal formalism. You should expect to see that excessive focus on the form and language of new legislation comes at the expense of attention to how the law will work in practice. We already know that the PLDPA and the X case judgment have failed at the level of interpretation – the law has been read down in ways which actively harm women. This has happened for two reasons. First, Irish medical culture – as evidenced by the cases  of Savita Halappanavar, Ms Y and PP v HSE, and as highlighted by the resistant activism of Doctors for Choice – emphasises obedience to the most conservative possible interpretation of the law, even when that interpretation is unreasonable from an ethical perspective because it does harm to the patient. Second, Irish legal culture, particularly within government and the civil service, is technocratic, conservative, litigation focused, and marked by excessive deference to the Attorney General as the most important interpreter of the Constitution. During the PLDPA debates, the government sought to connect to questions of the eventual implementation of the Act by inviting short testimony from elite medical and legal experts. Despite this, there is an obvious lack of government-led research or investigation into how abortion legislation would intersect with the lived reality of dominant Irish maternity care practices. In the General Scheme of the Abortion Access Bill 2015 we identify several crucial such gaps in public knowledge. If they are not filled, we will effectively be legislating into a black hole. (The government cannot even tell us, for example, how many terminations carried out under the PLDPA were abortions, and how many were so-called early deliveries.)

Legal Gender Recognition in Ireland

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.

The IMF's strange role as the voice of moderation

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

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

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

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

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

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

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).


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.

Rape and the Criminal Justice System

criminal courtsIn 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. Continue reading

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.

Interculturalism and Immigration Reform? Integration Policy in Ireland

Migration Nation1It 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.