The Fog of Juridification, Functionality and Everything Foreign

Wounded soldiersWe are delighted to welcome this post from Jane Rooney on the recent report published by think-tank Policy Exchange on apparent  human rights infringements during battlefield operations. Jane is the Deputy Convener of Law and Global Justice at Durham and Ph.D. candidate at Durham Law School. On 18th October 2013, think tank Policy Exchange published a report entitled, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’[1] co-authored by Thomas Tugendhat and Laura Croft and which will inevitably form the basis of the next Strategic Defence and Security Review. The report was written as a reaction to Smith & Ors v The Ministry of Defence[2], a case brought to the Supreme Court by relatives of British soldiers who died whilst serving in Iraq, with the relatives successfully claiming for compensation under the Human Rights Act 1998. The report denounces the decision in this case, stating that it represents the culmination of a ‘legal siege’ over British military operations, ‘eroding freedom of movement on the battlefield.’[3]

The recommendations of the report can be summed up as proposing that Parliament legislate on Combat Immunity; that Parliament legislate to exempt the Ministry of Defence from the Corporate Manslaughter and Corporate Homicide Act; that the United Kingdom (UK) derogates from the European Convention on Human Rights (ECHR) during deployed operations; and that legal aid should be removed from lawsuits brought by foreign nationals against the UK government. The underlying narrative of these proposals is, firstly, that Parliament should intervene to control the ‘judicial activism’ or ‘judicial creep’ of the Courts and secondly, that ‘foreign courts’ should not be able to control domestic decision-making and foreign nationals should not be able to access English domestic courts, which form familiar rhetoric in the Conservative party agenda. But what is the main problem that the report intends to fix?

The report states that the problem is broadly that there is a creep of civilian law into the military and that international humanitarian law (IHL) provides the proper balance between protecting individuals and serving military effectiveness. In a recent blog post on the report[4] it was highlighted that the civilian law habitually applies in times of war and that they are not mutually exclusive from one another. Instead, that author pointed out that the ‘real problem’ was the effect of the extensive extraterritorial application of the ECHR and the indeterminate interrelationship between international human rights law and IHL. However, they do not constitute the problem so much as they constitute the reasons for a particular problem and again we must ask, what is the problem identified by the report?

The answer is in the Smith case itself. Two sets of claims were brought against the Ministry of Defence (MoD), the ‘Challenger claims’ and the ‘Snatch Land Rover claims’. The ‘Challenger claims’ were brought under negligence in respect of the death of one party and the injury of two others, which occurred during a friendly fire incident in a Challenger II tank taking part in the offensive on Basra in 2003. The ‘Snatch Land Rovers’ claims were brought under the Human Rights Act 1998 alleging that the MoD was in breach of the obligation to safeguard life protected by ECHR article 2 due to failing to take reasonable measures in light of the real and immediate risk of soldiers with patrolling obligations. In both instances, the MoD was found to have failed to provide adequate equipment for the protection of soldiers’ lives. In particular, Snatch Land Rovers had no protection against improvised explosive devices (IEDs) and having been withdrawn from the battlefield as the result of the death of soldiers seven months previous to the incident in question, were re-introduced by the MoD without further enquiry. The report seeks to highlight the dangers that do, and furthermore could, potentially flow as a result of enabling servicemen or women to claim against the MoD either by evading the law on Combat Immunity or claiming under the Human Rights Act.

What happens when servicemen or women or their relatives are allowed to claim against the MoD? What detriment ensues?

The first argument is that it will be expensive.  In the report, the compensation costs are not at the forefront of their concerns. It is the cost of the lawyers that will be required to act on behalf of the MoD which are of greatest concern.[5] With legal costs projected as amounting to £36 million a year, the litigation that ensues from claims against the MoD constitute another form of ‘lawfare’ attempting to cripple British security and military effectiveness.[6] Other costs identified in the report predominantly concern inquiries into the rights violations of foreign nationals in war zones which detract from the main subject matter at hand, which is whether Smith will result in an onslaught of compensation claims from injured servicemen and women and their relatives which will be financially impossible for the MoD to respond to. No figure is provided for the latter kinds of claims. We can deduce from this that this is not the main concern flowing from the Smith case. We need to look elsewhere to establish why the Smith case is so damaging to the military effectiveness of the British forces.

There are a number of assertions in the report which are paramount to explaining what the main concern is arising from the report:

“Lawsuits undermine the fundamental rationale for an armed force: the transfer of physical risk. At its core, this is what the military does. Volunteers…take up the burden of protecting society and remove the requirement for self-defence from the wider community.”[7]

Lord Hope’s reference to statements from the 2006 Parliamentary Assembly of the Council of Europe, that “members of the armed forces cannot be expected to respect humanitarian law and human rights in their operations unless respect for human rights is guaranteed within army ranks,”[8] is interpreted by the report as claiming that servicemen and women cannot voluntarily surrender their ECHR rights, and that the army cannot protect the rights of others if they do not have rights themselves.[9] It finds Lord Hope’s statement abhorrent stating that it is “surely wrong and demeaning to assert that Service personnel who voluntarily sacrifice some of their rights, albeit temporarily, are incapable of upholding the rights of others as a result.”[10]Aside from a blatant manipulation of words, there is the question of whether the servicemen and women (or their relatives) who attempt to bring actions against the MoD under the Human Rights Act did conceive of themselves as voluntarily surrendering all of their rights? It is most probable that they did not. But the entire assumption is that when servicemen and women conceive of themselves as having rights they pose a “mortal threat to the culture and ethos of the military which cannot be easily reversed.”[11]

Having deduced the main substantive point of the report it is particularly important to acknowledge how the report has attempted to detract from what could be conceived as a very unpopular assertion: that British servicemen and women have no right to have rights.

Firstly, the report is not about human rights concerns detracting from the obligations of the military during life or death situations: the “removal of the protections once granted to those who risked all for their country”[12] or to ensure that “commanders from the most junior upwards understand that decisions made in the confusion of battle will not be held to a standard designed for those who have never known such pressures.”[13]

 Secondly, it is not about the expansive approach taken to the extraterritorial application of the ECHR. Indeed the decisions of Al Skeini and Al Jedda represented a leap forward in extending the jurisdiction of signatories to the ECHR to protect individual rights, providing the flexible ‘public powers’ model which enabled for the requisite jurisdiction to be found with regard to isolated rights violations abroad, rather than merely allowing jurisdiction to be found when a state had ‘effective control’ of the territory of another state and therefore responsible for all rights violations in that territory, a much higher threshold to meet. However, engaging in an analysis of how one could attempt to limit the liability of states under the ECHR when acting abroad by invoking Article 15 ECHR, which allows for a state to derogate from most rights in ‘times of war or other public emergency threatening the life of the nation’, is a point of concern.[14]

The extraterritoriality jurisprudence was invoked in order to explain how it was that the Smith case ever became possible and we still have to make a value judgment about whether we agree or disagree with what Smith entails. Furthermore, applying Article 15 extraterritorially is not an impossibility. The Court merely stated in Bankovic, remarking upon the extraterritorial application of Article 15, that “Article 15 itself is to be read subject to the “jurisdiction” limitation enumerated in Article 1 of the Convention.”[15] Because of the expansion of the concept of jurisdiction under the ECHR, Article 15 could potentially be applied in the circumstances in Smith. (Even though on closer examination, ‘threatening the life of the nation’ could infer that Article 15 could only be applied domestically). One must think of the implications of enabling this provision to be effective. It would represent a very serious roll-back in human rights protection and the enforcement of state responsibility when states act abroad. Again, we must shift the emphasis away from the fact of extraterritoriality, which has not necessarily proved to be detrimental to military effectiveness itself, and look more closely at the ‘problems’ that purport to ensue from what it has enabled – the Smith case.

Thirdly, the report is not about ‘juridification’ of the military.[16] It is not about the myriad of assaults that the judiciary has allegedly committed against the military from many different fronts, with one facet being that it empowers servicemen and women to bring actions against the MoD. It is about the threat of a changing ethos which is admittedly facilitated by the judiciary, an ethos which propounds the humanity of soldiers fighting on the ground and the empowerment of those individuals to see themselves as such. Furthermore, the term ‘juridification’ is used to imply that it is self-evidently a bad thing and it is a reason not to trust any eventualities that flow from it. It is a reason not to afford rights to servicemen because those rights come from juridification. It is necessary to look behind this term and look at the substantive results of it in order to evaluate whether it does encroach upon the effectiveness of the military.

A smoke screen of juridification, foreign courts, foreign nationals, and functionality have effectively obscured the main substantive point of the report. It is necessary that the fog is parted and that the newly found rights protection for British servicemen and women, who are afforded inadequate equipment for their own physical safety when carrying out military operations abroad, remains intact.


[1] Thomas Tugendhat and Laura Croft, ‘The Fog of Law: An introduction to the legal erosion of British fighting power’, Policy Exchange 2013

[2] Smith & Ors v The Ministry of Defence [2013] UKSC 41 (19 June 2013)

[3] The Fog of Law (n 1, p. 11)

[4] Aurel Sari, ‘Better Get A Lawyer: Are Legal Constraints Defeating Britain’s Armed Forces on the Battlefield?’ http://www.ejiltalk.org/author/asari/

[5] The Fog of Law (n 1, p. 35)

[6] Ibid.

[7] Ibid. p. 18

[8] Lord Hope, para 53, 54: Smith and Others v The Ministry of Defence [2013] UKSC 41

[9] Ibid. p. 31

[10] Ibid. p. 31

[11] Ibid. p. 11

[12] Ibid. p. 10

[13] Ibid. p. 11

[14] Better Get a Lawyer, n 4

[15] Banković and Others v. Belgium and Others [GC] (dec.), App. No. 52207/99, para 62

[16] Ibid. p. 16

The Fog of Juridification, Functionality and Everything Foreign

Stateless Terrorists: Domestic and International Legal Implications

utf-8UNHCR-GLC-Statelessness-Poster-A1-screen2 (2)We are delighted to welcome this guest post by Ntina Tzouvala and Rumyana Grozdanova on Theresa May’s announcement of her intention to repeal domestic legislation in order to be able to deprive terrorism suspects of their UK citizenship. Ntina is Deputy Co-Convener of Law and Global Justice and a PhD student at Durham Law School who is currently researching on history and theory of public international law. You can contact her here or follow her on Twitter @ntinatzouvala

Rumyana is Deputy Co-Convener of the Human Rights Centre and a PhD student at Durham Law School who is currently researching the US programme of Extraordinary Rendition and its effects on the international legal framework. You can contact her here or follow her on Twitter @rgrozdan

On 12 November 2013 the Home Secretary, Theresa May, announced her intention to repeal domestic legislation in order to be able to deprive terrorism suspects of their UK citizenship even if this renders them stateless. In years following 9/11 and 7/7, domestic and regional counter-terrorism responses have reshaped the relationship between individuals and the state and in particular the relationship between individuals suspected of terrorism and the state. Through broad anti-terrorism legislation, law has become a tool for persecuting individuals suspected of terrorism; the new measures proposed by Theresa May are yet another domestic step in what has been described as the ‘weaponisation of law’ (1). In the context of the transnational counter-terrorism operations led by the US and UK (also known as the ‘War on Terror’), the UK Terrorism Act 2000 introduced tougher and more extensive anti-terrorism measures in comparison the USA Patriot Act 2001. The existing definitions of terrorism were vastly expanded from politically motivated violence to include politically and religiously motivated serious property damage and interference with electronic systems; protests and strikes could thus potentially fall under the definition as well. The 2000 Act also outlined a proscription regime based on intelligence evidence, which by its nature was secret and introduced offences relating to being a member of or identifying with a proscribed organisation. Other broad offences were introduced, which appeared to push the boundaries of inchoate or pre-crime liability by criminalising the possession of articles. Due to the broad scope and span of the legislation, these offences could potentially by applied to individuals who are suspected of terrorist activities. This legislative approach towards a permanent basis for anti-terrorism measures in times of normalcy as opposed to times of national exigency was followed by the Anti-Terrorism, Crime and Security Act, 2001. The 2001 Act revived the offences of failure to provide information to the authorities, the use of immigration law as part of anti-terrorism law and a renewable 15 month derogation from Article 5(1)(f) the European Convention on Human Rights. The derogation in question was used to authorise indeterminate administrative detention of non-UK citizens suspected of involvement in terrorist activities however could not be deported due to the principle of non-refoulement. It was struck down by a House of Lords decision, which found the post 9/11 derogation to be both disproportionate and discriminatory by focusing on non-UK citizens only as posing a threat of terrorist activities. Perhaps the most significant legal development of the post 9/11 and 7/7 UK approach is the return to the regular renewal of the anti-terrorism legislation, which in 2006 and 2008 included minor expansions to the definition of terrorism (2). In short, domestically, the adopted definitions of terrorism have legitimised and normalised broad sweeping counter-terrorism measures. A significant development within this context is the recent case of R v. Gul. The UK Supreme Court found that there is no basis on which the ‘natural, very wide, meaning’ of the definition of terrorism under the 2000 legislation could be read restrictively as the definition ‘had clearly been drafted in deliberately wide terms so as to take account of the various and possibly unpredictable forms that terrorism might take.’ Thus potentially anyone can be a suspect of terrorism or terrorist related activities as illustrated aptly by the recent 9 hour detention of David Miranda at Heathrow Airport. Historically, few words have been plagued by so much indeterminacy, subjectivity and political disagreement as the word ‘terrorism’ (3). The term has gradually developed into one of the most pejorative words in the English language with a power focused on condemnation and response rather than explanation. Taking into account the pejorative connotations associated with the term terrorist suspect and the potential implications for an individual under the current anti-terrorism framework in the UK, the reasons behind Theresa May’s proposal lie elsewhere.

It could be assumed that this response to the recent Supreme Court decision in the case of Secretary of State for the Home Department v. Al-Jedda. In this case, the Court found that section 40(4) of the British Nationality Act 1981 prevents the Home Secretary of depriving someone from his/her British citizenship ‘if she is satisfied that the order would make them stateless.  By repealing the law, Theresa May will seek to remove this restriction and allow for more flexibly in measures taken against suspected terrorists. Significantly, the Secretary of State presently commands a wide discretion when it comes to deprivation of citizenship. Since 2002 the Secretary of State has the right to deprive of citizenship not only naturalised citizens, as was the case until then, but also has power to remove citizenship from all British citizens. The Act was further amended in 2006 to expand the discretion of the state – now any British citizen can be deprived of their citizenship ‘if the Secretary of State is satisfied that deprivation would be conducive to the public good’. Prior to this amendment, the Secretary of State had to be satisfied that the person had done something ‘seriously prejudicial to the vital interests of the United Kingdom. The inherent indeterminate scope and ambiguity of the ‘public good’ criteria has thus significantly enhanced state power when it comes to removal of citizenship.

Section 40(4) is perhaps one of the last legal safeguards against misuses of the Act. Statelessness significantly imperils the rights of an individual; most crucially it renders them exceptionally vulnerable as it would be almost impossible to acquire travel and identification documents and legally reside in a territory. The international community was determined to limit the occurrence of such precarious experiences after the infamous Nuremberg Laws and the Holocaust. Following World War II, the granting and removing of nationality ceased to be an unlimited prerogative of the state as international legal documents began imposing constraints on signatory states. Article 15(1) of the Universal Declaration of Human Rights adopted in 1948 notes that  ‘Everyone has the right to a nationality’. While the Declaration did not have a legally binding character when adopted, today it is generally accepted that it has acquired international customary law status and is therefore binding upon all states. Furthermore, two conventions with exclusively focusing on statelessness have been drafted under the auspices of the UN. The 1956 Convention Relating to the Status of Stateless Persons attempted to mitigate the adverse impact of statelessness by designating a minimum standard of treatment for stateless people. The 1961 Convention on the Reduction of Statelessness sought to reduce the occurrence of the phenomenon by imposing significant limitations on states’ discretion to manage their citizenship laws with a view to limit incidents of statelessness.  This Convention came into force in 1975 and after this date its provisions set out significant international legal limitations for states parties to it, including the UK, which ratified the Convention in 1966. Articles 7, 8 and 9 impose limitations on the deprivation of nationality if a state act results in rendering an individual stateless; therefore, the UK’s discretion on the matter is curbed under international law.

Admittedly, the UK has altered its obligations under the treaty by tabling a reservation. Nevertheless, the repeal proposed by the Home Secretary appears to exceed the scope of the reservation itself. The reservation only covers the deprivation of citizenship of naturalised citizens. Hence, one could reasonably argue that the 2002 amendment of the British Nationality Act 1981 was already in violation of the 1961 Convention. More importantly, the text and spirit of the reservation strongly indicates that it refers to individuals convicted by a court of law for ‘seriously prejudicing the vital interests of Her Britannic Majesty’. There is no evidence that the reservation was intended to be applicable to ‘suspects of terrorism’. Such an interpretation broadens the scope and span of the reservation in a manner that undermines the object and purpose of the Convention itself (5). Hence, the mantra that British citizenship is ‘a privilege, not a right’ and as a corollary that it is strictly and solely within the UK Government’s authority to manage citizenship rules are deceptive, as they involve (purposefully) a disregard for international legal obligations.

(1) Kennedy, D., Of War and Law (2006, Princeton; Princeton University Press) and Murphy, C. C., EU Counter-Terrorism Law (2012, Oxford; Hart Publishing);

(2) The list of Acts containing the term ‘terrorism’ in their title and the full texts of the Terrorism Act 2006 and the Counter-Terrorism Act 2008 are available at http://www.legislation.gov.uk/primary?title=Terrorism

(3) Saul, B., Defining Terrorism in International Law (2006, New York; Oxford University Press), see also Gearty, C., Liberty & Security (2013, Cambridge; Polity Press)

(4) United Kingdom of Great Britain and Northern Ireland

“[The Government of the United Kingdom declares that], in accordance with paragraph 3 (a) of Article 8 of the Convention, notwithstanding the provisions of paragraph 1 of Article 8, the United Kingdom retains the right to deprive a naturalised person of his nationality on the following grounds, being grounds existing in United Kingdom law at the present time:  that, inconsistently with his duty of loyalty to Her Britannic Majesty, the person

“(i) Has, in disregard of an express prohibition of Her Britannic Majesty, rendered or continued to render services to, or received or continued to receive emoluments from, another State, or
“(ii) Has conducted himself in a manner seriously prejudicial to the vital interests of Her Britannic Majesty.”

(5) Article 31(1) of the Vienna Convention on the Law of Treaties provides us with a useful guide as for the interpretation of treaty obligations: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

Stateless Terrorists: Domestic and International Legal Implications

Is Article 8 ECHR the ‘Feminist Article’?

indexWe are very pleased to welcome this guest post from Helen Fenwick who is Professor at Durham Law School. Helen is an expert in civil liberties, human rights and counter-terrorism law. She is also an expert advisor for Liberty and has been involved in policy development at national and international levels.  This post is also published at Inherently Human

This post concentrates on Article 8 ECHR to argue that it can be viewed as sympathetic to feminist goals since, due to its particular ability to impose positive obligations on the state in relation to creating respect for private or family life, it can require the state to create curbs on the actions of non-state actors particularly adverse to women (eg. in relation to domestic violence: Hajduova v Slovakia) and ensure the efficacy of services that women in particular might need to access, such as to abortion (P&S v Poland). Women are, it is argued, more at risk than men from the actions of non-state actors within the private and family sphere (see intervention of Equal Rights Trust in Eremia and Others v Moldova on this point), so Article 8 has a particular pertinence for women, and unlike Article 14 (the guarantee of freedom from discrimination), which has not proved to have a strong impact as a means of advancing the interests of women due to its reliance on furthering formal equality (see eg Dembour Who Believes in Human Rights, Ch 7), Article 8 can address the substantive concerns of women, without the need for any reliance on a comparator.

Other ECHR Articles are also relevant. Article 3 would also support recognition of positive obligations, (see McGlynn, Clare (2009) ‘Rape, torture and the European convention on human rights’ ICLQ 58 (3)) including in the contexts considered below, although the harm threshold is obviously high. Article 8 currently may be the gateway to Article 14, the freedom from discrimination guarantee (bearing in mind that the UK has not ratified Protocol 12). In other words, if Article 8 is engaged but no violation is found, a violation of Article 14 might nevertheless be found of the two read together (Van Raalte v Netherlands).

Using Article 8 ECHR to advance women’s interests

Under one strand of feminist thinking, it might be argued that the ECHR in general has little to offer women (see, for discussion, Grabham and Hunter ‘Encountering Human Rights’). This is due to a judicial approach to it that values modes of thought that may marginalise women and which pays little attention to ideas about feminist legal method (see Samuels ‘Feminizing  human rights adjudication’), combined with the difficulty of using specific cases to address complex social problems. But, as a number of writers have pointed out, especially recently (see Bauer, ‘Documenting women’s rights violations by non-state actors’), human rights principles can be used as a campaign tool in influencing and mobilising public and community opinion. The use of campaigning methods by feminist advocacy groups, as instanced in the recent successful campaign to remove gender-based hate speech from Facebook, does not preclude mobilising legal channels as a complementary means of disrupting existing social norms adverse to women via deployment of such principles, allowing gender-specific variants of rights’ violations to be recognised. At the same time, the difficulties facing women who seek to use the ECHR should not be under-stated, and Article 8’s protection for family life is gender neutral at face value, meaning that it can also be invoked in ways that could put women and girls at risk by discouraging state actions interfering with family life that are designed to protect vulnerable women (for example, claims by family members convicted of offences relating to domestic violence, including ‘honour’ murder, that post-sentence they should not be deprived of access to surviving family members in furtherance of their family life, as occurred, albeit unsuccessfully, in Ahmad v Brent).

So, in what ways does and could Art 8 especially benefit women and girls?  This blog obviously cannot offer by any means an exhaustive list – each of these matters is complex and has already spawned quite an extensive literature in itself in relation to international human rights’ law – so they can only be touched on here.

Preventing deportation to face adverse treatment based on gender

EM (Lebanon) (FC) (Appellant) (FC) v SSHD concerned a woman who had suffered domestic violence from her husband; as Lord Bingham noted, he had ended her first pregnancy by hitting her on the stomach with a heavy vase, saying he did not want children (para 22). Under Shari’a law as applied in Lebanon, during the first seven years of life, when a male child is cared for by the mother, the father retains legal custody and may decide where the child lives. The transfer to the father at age 7 is automatic: the court has no discretion in the matter and is unable to consider whether the transfer is in the best interests of the child. As a result, Lord Bingham pointed out, women are often constrained to remain in abusive marriages for fear of losing their children (para 24). The evidence was that no family life had been established in Lebanon between the child and his father or his father’s family; it was found that the father had shown no interest in him. The applicant had managed to leave Lebanon with her son and resisted deportation from the UK on the basis of her Article 8 right to respect for family life; as this was a ‘foreign’ case, she had to show that a flagrant violation of Article 8 would arise due to the impact on her family life if she was returned to Lebanon, taking into account that the only family life that had been established was between mother and son. The Lords agreed that on return to Lebanon both the appellant’s and her son’s right to respect for their family life would be flagrantly violated in the sense of being ‘completely denied and nullified’.

Expulsion to face the risk of extremely serious adverse treatment on grounds of gender – ‘honour’ murder (see A.A and others v Sweden) or FGM (Omeredo v Austria) – has been found to fall within Articles 2 or 3. But their status as unqualified or non-materially qualified rights inevitably carries with it the need to show a high threshold of harm, and so places women under serious evidential difficulties, meaning that bringing the claim also under Article 8 (alone and/or combined with Article 14) may be advantageous in such instances.

 Domestic violence – requirement of effective investigations and prevention

 Bevacqva and S v Bulgaria concerned a woman who had been attacked on a number of occasions by her husband and claimed that her requests for a criminal prosecution were rejected on the ground that it was a ‘private matter’. The Court found a violation of Article 8 due to the failure of the state to adopt the measures necessary to punish and control the violent behaviour of her husband. A somewhat similar situation arose in Hajduova v Slovakia; the applicant’s husband had been detained in hospital for psychiatric treatment after he attacked her in public and threatened to kill her. She moved to a refuge with her children. Her ex-husband was released, without having undergone the required treatment, and renewed his threats. Reiterating that Slovakia has a duty to protect the physical and psychological integrity of individuals, particularly vulnerable victims of domestic violence, the Court found a violation of Article 8 in that, although the applicant’s ex-husband had not assaulted her following his release from hospital, her fear that his threats might be carried out was well-founded and the authorities had failed in their duty to ensure his detention for psychiatric treatment. A similar outcome was reached in Kalucza v. Hungary, which concerned Hungary’s failure to protect Ms Kalucza from her violent former partner. The Court found a violation of Article 8 since the Hungarian authorities had not taken sufficient measures to provide her with effective protection against him, despite criminal complaints lodged against him for assault, repeated requests for a restraining order against him, and civil proceedings to order his eviction from their flat.

These cases succeeded under Article 8, although it is readily arguable that some cases of domestic violence should rather raise issues under Articles 2 and 3, as in Opuz v Turkey which concerned the ‘honour’ murder of the applicant’s mother, who had tried to support the applicant, and repeated ‘honour’ crimes in the form of serious assaults and death threats against the applicant. The Court noted that the national authorities were reluctant to interfere in what they perceived to be a “family matter”. Turkey was found to have violated Article 2 due to its lack of due diligence in taking preventive operational measures to protect the life of the mother and, therefore, in failing in their positive obligation to protect the right to life of the applicant’s mother within the meaning of Article 2. Turkey was also found to have violated Article 3 due to its failure to take protective measures in the form of effective deterrence against serious breaches of the applicant’s personal integrity by her husband.

A number of highly significant findings were made in this context in the very recent case of Eremia and Others v Moldova. The judgment found that, while the authorities took some steps to protect the first applicant from her violent husband, a police officer, over a period of time, the steps were not effective and there was reluctance to take the matter seriously enough. In other words, the failures in the case were redolent of the familiar failings in the previous domestic violence cases considered. But not only were breaches of Articles 8 and 3 (on the basis of the state’s positive obligation to protect persons from inhuman treatment) found, but the Equal Rights Trust, intervening, persuaded the Court to treat domestic violence as a form of gender-based discrimination under Article 14 read with Article 3.  The second and third applicants were the daughters of the first applicant; they complained successfully under Article 8 of the psychological effects of witnessing their mother being physically and verbally abused at their home, while being unable to help, and of verbal abuse on the part of A. The decision represents an important breakthrough in this jurisprudence since the gendered nature of domestic violence – its disproportionate and particular impact on women – was recognised under Article 14, as was the impact of such violence on children forced to witness it, under Article 8.

 Recently in the UK, the IPCC reported adversely on the police investigation into the murder of Maria Stubbings who was strangled in Chelmsford, Essex, in December 2008 by her former boyfriend, Marc Chivers. Essex police knew he had killed before, and that he had served time in prison for assaulting Stubbings, but the IPCC found that they had failed to recognise the seriousness of the danger to her. As a number of journalists have recently pointed out, the Macpherson inquiry found that the police had failed “to provide an appropriate and professional service” with “processes, attitudes and behaviour” harmful to the minority ethnic community when it reported on the murder of Stephen Lawrence. Maria Stubbings’ family have called for a similar inquiry into failings in police investigations into domestic violence. The threat and actuality of a possible action under Articles 8, 2, and 3 domestically or at Strasbourg, based on the jurisprudence cited, would be likely to aid campaigns focussing on this issue.

Upholding access to abortion

The recent jurisprudence on abortion at Strasbourg has had some moderate success in alleviating harm to women, by invoking Article 8 (and in some instances Article 3 in RR v Poland and P&S v Poland). The claims so far have been brought against Poland and Ireland (ABC, RR and P&S), but cases against other states are in the Strasbourg system (for example, Z v Moldova). This is not the place to discuss this developing jurisprudence in detail, except to make two points. Poland purports to allow abortion in certain narrow circumstances but, in practice, on religious grounds, places obstacles in the way of obtaining it (RR para 84-86), while Ireland has a virtual prohibition with a narrow exception where there is a serious risk to the life of mother. The suffering of the applicants, especially in the Polish cases so far, has tended to be of a very serious nature (see, eg. Tysiac v Poland, where a complication with pregnancy resulted in blindness). Although Ireland’s current virtual complete prohibition on domestic abortion is largely ineffective due to the availability of abortion in England (ABC), it has been linked to extreme suffering in exceptional circumstances, including the tragic death of Savita Halappanavar. This position underpins the paradox of the current jurisprudence which is that cases against Poland are more likely to succeed despite its more liberal regime, since the Court can avoid a full confrontation with Ireland’s Constitutional provision of equal protection for foetal and maternal life.

The recent case of P&S v Poland, the first Strasbourg case on rape-induced pregnancy, graphically illustrates what is wrong with Polish practice on abortion. The first applicant, P, was a 14 year old girl who became pregnant as a result of rape. She therefore had a legal right to an abortion under Polish law. However, when, supported by her mother, S, she sought to access an abortion in practice, she faced a range of obstructions. The hospital that P approached disclosed her personal and medical information to the media, and the public generally. As a result, she was harassed by anti-abortion activists and representatives of the Catholic Church. She went to three different hospitals but could not obtain genuine information about the requirements for obtaining an abortion. Doctors invoked conscientious objection against performing the abortion and failed to refer P to another hospital. The stance was taken by anti-abortion hospital staff and Church officials, falsely, that S was trying to pressure P into having an abortion against her will. As a result, when P and S sought police protection from anti-abortion activists, the police instead arrested P, removed her from S’s custody and placed her in detention (paras 17, 26, 28 and 29). After delays, P eventually received a legal abortion following an intervention from the Ministry of Health, but she received no post-abortion care (para 41). The Court relied on Tysiąc and RR to reaffirm under Article 8 that once a State has adopted statutory regulations that allow abortion in specified situations, it comes under a duty to make the access available in practice. The Court found a breach of Article 8 on the basis of ‘a striking discordance between the theoretical right to… an abortion…and the reality of its practical implementation’ (para 111).

The situation in Poland may appear to be far removed from that in the UK (apart from in Northern Ireland), but given current attempts to undermine the principle of safe legal abortion by making access to abortion more difficult – in particular by allowing pro-life groups to become involved in counselling abortion-seekers (proposed by Nadine Dorries) and greater protection for conscientious objection (confirmed in a recent case involving Catholic midwives).

Conclusions

This blog has suggested that the guarantee of respect for private and family life under Article 8, taking account of relevant Strasbourg jurisprudence, is leading to developments in human rights principles that reduce gender-based harm to women. A pervasive pessimism in some feminist thinking on the potential of the ECHR to address and reduce such harm may have obscured the potential of such developments, which are also very recent. This blog suggests that a pessimistic view of the ECHR’s potential (and Article 8’s in particular) to aid women who have been let down by courts and legislatures in their own states, should be revisited.

Is Article 8 ECHR the ‘Feminist Article’?

Historic Hearing in US Senate on UN Disability Treaty

We are delighted to welcome this guest post from Professor Gerard Quinn Director of the Centre for Disability Law & Policy at NUI Galway.

A historic hearing took place yesterday (Thursday, July 11th) in the US Senate Committee on Foreign Relations.  The issue before the Committee was US ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD).  In the US system the Senate must gives its ‘advice and consent’ before the Federal Government can ratify a treaty.  A two thirds majority vote is needed from the full Senate before the Administration can proceed to ratification.  This is an exceedingly high bar but, especially after yesterday, it looks likely to be met.  It is now almost a foregone conclusion that the Committee – chaired by Senator John Kerry (D-Mass) – will commend a positive vote to the full Senate.

This really matters not just for the US but also for the rest of the world.  And it would certainly up the ante for Irish ratification.  The traditional bi-partisan approach of the US Congress was splendidly exemplified in opening remarks made to the Committee by Senators John McCain (R-Ariz) and Tom Harkin (D-Iowa).  The symbolism of their joint appearance spoke volumes about the natural reflex of both parties in favour of the civil rights of persons with disabilities.  Indeed, both of them relayed the support of former President H W Bush as well as former Senator Bob Dole.  This immediately took the issue out of the cauldron of partisan politics and placed it where it should be – as matter of high principle. Continue reading “Historic Hearing in US Senate on UN Disability Treaty”

Historic Hearing in US Senate on UN Disability Treaty

Ireland to sign the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

The Department of Foreign Affairs has announced that Ireland is to sign the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR). This is a welcome decision by the Government, though no date has been set for ratification. In many ways ratification is the most important step as it enables individuals to rely on the Optional Protocol, however the decision to sign the Protocol should be welcomed. The ICESCR was opened for signature, alongside its companion treaty, the International Covenant for Civil and Poltical Rights (ICCPR) in 1966 and came into operation in 1976. The decision to separate these rights is rooted in both Cold War politics and the belief of some states at the time and currently that Economic, Social and Cultural Rights should not have the same enforcement mechinisms and are of a different character to their Civil and Political Rights counterparts. This stance is also reflected in the status of the section on the Directive Principles on Social Policy in the Irish Constitution.

Ireland signed the ICCPR in 1973 and ratified it in 1989. In the same year, Ireland also ratified the ICCPR’s Optional Protocol, which allows individuals to take claims to the ICCPR’s attached Committee. The Optional Protocol for the ICESCR was not open for signature until 2008. ICESCR’s Optional Protocol also allows individuals to take complaints based on the treaty to its attached Committee (CESCR). Continue reading “Ireland to sign the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights”

Ireland to sign the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

Council of Europe Recommendation on the Political Participation of Persons with Disabilities

The Committee of Ministers of the Council of Europe last week adopted a Recommendation that seeks to increase the participation of persons with disabilities in political and public life at all levels − local, regional, national and international.  The Recommendation is available here.  Between 80 – 100 million persons with disabilities live in the 47 Member States of the Council of Europe.  The Council of Europe noted that persons with disabilities often do not take part in the decision-making process as they face legal, physical, and societal barriers to participating. Through this Recommendation the Committee of Ministers seek to challenge this exclusion. The Recommendation aims to remove barriers and create conditions for active citizenship, without discrimination, for all and in all life settings. The Recommendation stresses that all persons with disabilities are entitled to express their views and should not be deprived of their right to vote or stand for election on the basis of disability.  This is a very progressive statement from the Committee of Ministers and goes some way towards countering the repressive position of the European Commission for Democracy Through Law (the Venice Commission) regarding the eligibility of persons with intellectual disability to stand for election and vote.   The Venice Commission in its“Interpretative Declaration to the Code of Good Practice In Electoral Matters on the Participation of People with Disabilities in Elections” stated:

Continue reading “Council of Europe Recommendation on the Political Participation of Persons with Disabilities”

Council of Europe Recommendation on the Political Participation of Persons with Disabilities

Getting it Right: Capacity Legislation and the Convention on the Rights of People with Disabilities

Amnesty International and the Centre for Disability Law & Policy (NUI Galway) will run a seminar entitled “Getting it Right: Capacity Legislation and the Convention on the Rights of People with Disabilities” on 30 November 2011 from 9am – 1pm at the Alexander Hotel, Fenian Street, Dublin 2.  This seminar will explore how Irish legislation can reflect the changes Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD).  Article 12 of the CRPD requires a fundamental change in thinking about legal capacity and repeal of laws that restricts or denies legal capacity.  Person sharing their personal experiences of having their legal capacity called into question will address the conference.  The seminar will also be addressed by leading international legal experts Christine Gordon (speaking about the British Columbia model) and Oliver Lewis (MDAC). This seminar is timely as the Government moves towards the publication of a bill to replace the outdated Ward of Court System.  For more information see here.

Getting it Right: Capacity Legislation and the Convention on the Rights of People with Disabilities

Moving Towards Modern Legislation on Legal Capacity in Ireland

The Centre for Disability Law and Policy recently prepared a submission to the Oireachtas Justice Committee on the Scheme of proposed legislation that will radically overhaul Irish law on legal capacity.  The full submission is available here.

The core message of the submission was that the fields of mental health law, non-discrimination, and legal capacity can no longer be considered separately.  In this regard the Convention on the Rights of Persons with Disabilities “recognises that considering these issues in separate silos was wrong and that the artificial lines drawn between these separate fields are increasingly blurred” and it is important to consider the impact the proposed legal capacity legislation on general non-discrimination provisions and mental health law in particular.  The submission highlighted that Article 12 of the CRPD on legal capacity is at the core of the Convention and that equal recognition as a person before the law is key to the enjoyment of all other rights.  The submission also flagged that the assumption of legal capacity, and the obligation on states to provide supports to people with disabilities in order to enable them to exercise their legal capacity flows from this recognition, and these are the key attributes, which need to be embedded in Irish law, in order to ensure compliance Continue reading “Moving Towards Modern Legislation on Legal Capacity in Ireland”

Moving Towards Modern Legislation on Legal Capacity in Ireland

Human Rights Organisations Oppose the Forced Sterilisation of Women with Disabilities in France

An alliance of human rights groups has spoken out against the forced sterilisation of women with mental disabilities in France.  See here and here.     Last week the Center for Reproductive Rights, European Disability Forum, Interights, International Disability Alliance and Mental Disability Advocacy Center; submitted written comments to the European Court of Human Rights in the case of Gauer and Others v France (Application no 61521/08).  A copy of the written comments is available here.    Gauer and Others v France is a case involving five women with intellectual disabilities who were forcibly sterilised.  The decision of the European Court of Human Rights will be an important statement on the reproductive rights of persons with disabilities and the positive obligations on the States in safeguarding persons with disabilities against abuse.

The European Court of Human Rights has used the UN Convention on the Rights of Persons with Disabilities (CRPD) as an interpretive aid to the European Convention on Human Rights and it is clear that the ECHR has been edging closer to the philosophy of legal capacity as set out in Article 12 of the CRPD.  In Shtukaturov v Russia the ECtHR stated “…the existence of a mental disorder, even a serious one cannot be the sole reason to justify full incapacitation”.  This was an important statement by the ECtHR acknowledging that there was a lack of proportionality in the legal response to the person’s capacity in that case.  Moreover, the Shtukaturov decision is important in that ECtHR acknowledges that the deprivation of legal capacity constitutes a serious intrusion into a persons right to respect for their private and family life under Article 8 and domestic legislation has to provide “a tailored-made response” in this area.  So this case will provide an invaluable opportunity for the Court to engage with the CRPD and further develop its jurisprudence on the right to legal capacity.  Other human rights that will be engaged under the European Convention on Human Rights include:

  • Article 3 (prohibition of torture)
  • Article 8 (right to respect for private and family life)
  • Article 13 (right to an effective remedy)
  • Article 14 (Prohibition of discrimination)
Human Rights Organisations Oppose the Forced Sterilisation of Women with Disabilities in France

Government Seeks Applications for Appointment of Irish Member to the CPT

In line with the Government’s new policy of openness in appointments the Minister for Justice for Justice and Equality is seeking expressions of interest from suitably qualified and experienced persons for consideration for appointment as the Irish member on the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).  The Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment was established under the Council of Europe’s “European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment”, which came into force in 1989.  It builds on Article 3 of the European Convention on Human Rights, which provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”.   For details on the nomination process and more information on the CPT see here.

 

Government Seeks Applications for Appointment of Irish Member to the CPT