Maynooth Law School: The Gaza Strip: Military & Legal Perspective

mayuni_logoThe Gaza Strip: Military & Legal Perspectives

A Public Lecture by Col. Desmond Travers

When: Monday, 23 March 2015, 6:30pm – 8pm

Where: Renehan Hall, South Campus, Maynooth University

Desmond Travers is a retired Irish army colonel who served with a number of UN peacekeeping missions in the Middle East and the Balkans. He is now a director of the Institute for International Criminal Investigations in the Hague, where he trains and supports teams involved in the investigation and prosecution of war crimes, crimes against humanity and genocide. Colonel Travers was a member of the Fact-Finding Mission on the Gaza Conflict that was deployed by the United Nations in 2009, following Israel’s ‘Operation Cast Lead’ in the Gaza Strip. A similar independent international investigative mechanism, the Commission of Inquiry on the Gaza Conflict, was created by the UN following Israel’s ‘Operation Protective Edge’ in the summer of 2014, with a mandate to investigate all violations of international humanitarian and human rights law. This commission is scheduled to present its report to the UN Human Rights Council on 23 March 2015. Drawing on his experiences as a military investigator and legal-political analyst in the context of the Middle East, Col. Travers will provide his reflections on this latest investigative process and on Israel’s use of force in the Gaza Strip last summer, as well as his analysis of current and future developments in Palestine/Israel.

Attendance is free and all are welcome; please email to register.

Maynooth Law School: The Gaza Strip: Military & Legal Perspective

Preventing impunity for serious human rights abuses: The Zimbabwe Torture Docket Case

SA CourtWe are delighted to welcome this guest post from Amina Adanan who holds the EJ Phelan Fellow in International Law and is a Ph.D candidate at the Irish Centre for Human Rights, School of Law, NUI Galway.

On 30 October last, the Constitutional Court of South Africa issued its decision in National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another (Zimbabwe Torture Docket Case). The judgment affirms that the South African Police Service (SAPS) has a duty to investigate crimes against humanity committed outside of South Africa, subject to certain restrictions.

The case concerns the application of universal jurisdiction in South Africa. Universal jurisdiction is the prosecution of a serious human rights abuse, where the crime is committed abroad, by foreigners, against foreigners. It is a type of extraterritorial jurisdiction that applies to piracy (on the High Seas), the Slave Trade, genocide, war crimes, crimes against humanity and torture. Serious human rights abuses are often orchestrated by the state apparatus, thus a prosecution in the territorial state may be unlikely. As such, universal jurisdiction is vital to ensure that abuses are prosecuted. The Implementation of the Rome Statute of the International Criminal Court Act No. 27 of 2002 (ICC Act) allows South African Courts to exercise universal jurisdiction over crimes against humanity.

Background to the case

In March 2007, the Zimbabwean Police, acting under the direction of ZANU PF (the then one party government) raided the headquarters of the main opposition party, the MDC. Some MDC supporters were detained and tortured by the Zimbabwean Police. The torture was committed as part of a wide-scale and systematic operation executed against the MDC and its supporters in the run up to the 2008 elections. The acts were committed in Zimbabwe, by Zimbabweans, against Zimbabweans.

Following the incident, the South African Litigation Centre (SALC), a prominent public interest NGO, investigated the matter. SALC gathered evidence and compiled a docket, which included medical reports of victims, along with interviews and affidavits from witnesses and victims. In March 2008, the docket was forwarded to the National Prosecuting Authority (NPA) for investigation. In June 2009, SALC received confirmation that SAPS would not investigate the alleged offences. Under the Constitution, it is the duty of the Police to investigate crime.

SALC and the Zimbabwe Exiles’ Forum (ZEF) then applied to the High Court in Pretoria, seeking an order to have the decision reviewed. The application was made against the National Director of Public Prosecutions (NDPP), the Head of the Priority Crimes Litigation Unit of the NPA and the National Commissioner of SAPS. After the High Court found in favour of the applicants, the National Commissioner of SAPS and the NDPP appealed the High Court’s decision to the Supreme Court of Appeal of South Africa. In November 2013, the Supreme Court of Appeal found in favour of SALC and ZEF. Saidat Nakitto has provided an excellent analysis of the Supreme Court of Appeal decision.

The National Commissioner of SAPS then appealed the matter to the Constitutional Court of South Africa. Seven amicus curiae joined the proceedings, among them notable academics in human rights law and NGOs around the world, illustrating the importance of the case in the field of human rights.

The findings of the Constitutional Court

The Constitutional Court looked to whether SAPS had an obligation to carry out pre- trial investigations into international crimes committed extraterritorially, and if so, what circumstances trigger this duty.

The obligation on SAPS to investigate international crimes committed abroad

First, the Constitutional Court noted the ‘special place’ of international law in South African law; reiterating, that the Constitution and national legislation must be interpreted in light of international law.

The Court then turned to look at Complementarity in the Rome Statute of the International Criminal Court. Article 17 of the Rome Statute (and its preamble) affirm that the ICC can only hear a case, where a state with jurisdiction over the offence is unable or unwilling to investigate or prosecute the crime. The ICC is complementary to national courts, when it comes to the prosecution of international crimes (genocide, war crimes and crimes against humanity). The ICC can exercise jurisdiction over international crimes that are committed on the territory of a state party, or by a national of a state party, or when a situation is referred to the Court from the UN Security Council. The Constitutional Court noted that a question arises as to states parties’s obligations to prosecute international crimes committed in the territory of a non-state party to the Rome Statute. Here the Court noted:

If an investigation is not instituted by non- signatory countries in which the crimes have been committed, the perpetrators can only be brought to justice through the application of universal jurisdiction, namely the investigation and prosecution of these alleged crimes by states parties under the Rome Statute.

Zimbabwe is not a state party to the Rome Statute and the National Commissioner of SAPS did not dispute the unlikelihood of the torture being investigated in Zimbabwe.

The Court then turned to look at South Africa’s jurisdiction in respect of the crime of torture. The Court noted that torture is a crime to which jus cogens status attaches and from which no derogation is permitted. South Africa had incorporated the UN Convention Against Torture into domestic law. Jurisdiction over torture on the scale of a crime against humanity had been incorporated into domestic law in South Africa by the ICC Act itself. After examining the sources of international and national law, including regional instruments, the Constitutional Court concluded that South Africa is required (where appropriate) to exercise universal jurisdiction over crimes against humanity.

The ‘connecting factors’ in South Africa’s exercise of universal jurisdiction under the ICC Act

The Court recognised that there were certain ‘connecting factors’, at least one of which must be present for an international crime to be prosecuted in South Africa. Section 4 (3) of the ICC Act, states that South African Courts have jurisdiction over international crimes committed outside of South Africa:

[A]ny person who commits a crime contemplated in subsection (1) outside the territory of the Republic, is deemed to have committed that crime in the territory of the Republic if –

(a) that person is a South African citizen; or

(b) that person is not a South African citizen but is ordinarily resident in the Republic; or

(c) that person, after the commission of the crime, is present in the territory of the Republic; or

(d) that person has committed the said crime against a South African citizen or against a person who is ordinarily resident in the Republic.

In this instance, section 4(3)(c) was relied on. SAPS argued that because the accused persons were not present in South Africa, they were not under a duty to commence an investigation. (Notwithstanding that some of the accused Zimbabwean officials visited South Africa after the crimes were committed, and were not apprehended). The ICC Act itself is silent on whether the accused need be present in South Africa for the pre-trial investigation.

After noting the work of the Institut de Droit International and the content of the amicus curiae brief submitted by John Duggard and others, the Court stated that there was no international rule that the accused must be present for the pre- trial investigation. If not, investigations into crimes against humanity would be unlikely take place. The Constitutional Court did not dispute that the presence of the accused is required at a more advanced stage of proceedings.

Limitations on the exercise of universal jurisdiction by South Africa: subsidiarity and practicability

Looking first at subsidiarity, the Court found that an investigation may only commence where another state with jurisdiction over the crime (the territorial or state of nationality of the alleged perpetrator) is unable or unwilling to do so. The reason being, ‘the principle of non- intervention in the affairs of another country must be observed’. Here, the Court borrows from the language of the principle of complementarity. The Court noted that it was unlikely that the crimes would be investigated by the Zimbabwean Police, given that six cabinet ministers were linked to the offence.

On the issue of practicability, the Court said that the South African authorities must consider if it is reasonable to carry out the investigation, in each particular case. A number of factors must be considered: (1) The likelihood of a prosecution; (2) If the accused persons are likely to enter South Africa, of their own accord, or via an extradition request; (3) The geographical location of the crime; (4) The likelihood of the accused being arrested; (5) The gathering of evidence; and (6) The nature and extent of resources required.

The Constitutional Court unanimously rejected the appeal and costs were awarded against the appellant. The Court highlighted that constitutional obligations must be carried out without delay, notwithstanding the considerable time that had lapsed since the torture had occurred. SAPS will now investigate the crime.

Points of note

There are a number of significant points that arise in this judgment. Firstly, the Rome Statute itself does not demand that states parties exercise universal jurisdiction. As stated above, the ICC has jurisdiction to hear cases relating to international crimes committed on the territory of a state party, or carried out by nationals of the states parties. States parties are obligated to incorporate these forms of jurisdiction into domestic law, at a minimum. Section 4(3) of the ICC Act does not include universal jurisdiction in express terms. The Constitutional Court interpreted section 4(3) as implying the exercise of universal jurisdiction by the South African authorities.

Second, the Constitutional Court was right to distinguish between the presence of the accused for the pre-trial investigation and the presence of the accused for the trial, as it did. State practice shows that many pre- trial investigations related to the exercise of universal jurisdiction begin without the presence of the accused in the forum state. The investigation in Spain, into crimes committed by General Augusto Pinochet during his reign in Chile, are perhaps the most famous example of this. In Belgium, investigations commenced into alleged international crimes committed by former US President George H. W. Bush, and former Israeli Prime Minister Ariel Sharon, without the presence of the accused.

Third, in the grand design that is modern universal jurisdiction, where the trend of states is to reduce the scope of universal jurisdiction, this judgment is refreshing. Moreover, it is an example of a non- European state taking steps to apply universal jurisdiction (which is usually exercised by European States). Since 2003, in Belgium, the national legislation on extraterritorial jurisdiction is restricted to the active and passive personality principles, or to accused persons or victims who are resident in the state. In Spain, the question of whether recent amendments the national legislation on universal jurisdiction conflict with Spain’s obligations in international law, is currently being explored by the Spanish Constitutional Court. One of the reasons for this trend is because the exercise of universal jurisdiction interferes with the forum state’s international relations. In the Zimbabwe Torture Docket Case, the Constitutional Court of South Africa did not give much attention to SAPS’s concern that the investigation would hamper South African- Zimbabwean relations. The Constitutional Court noted that inter-state tension is unavoidable in the application of universal jurisdiction.

Finally, it can also be said that this judgment is an example of how the principle of complementarity is supposed to work. As the Court noted, the primary responsibility of the prosecution of international crimes rests with the states parties. It may be the case that this judgment comes from a state with a particularly strong will when it comes to human rights. South Africa was the first African State to incorporate the Rome Statute into domestic law. This is an important judgment not only for South Africa, but for other states that exercise universal jurisdiction. It is a positive move towards preventing impunity for serious human rights abuses. Whether the judgment will appeal to other states will remain to be seen.

Case materials are available on the website of the South African Litigation Centre.

Preventing impunity for serious human rights abuses: The Zimbabwe Torture Docket Case

Isis, the Caliphate and new states

 _75935223_iraq_syria_isis_caliphate_20140630_624_v1The rapid advance of Isis, (The Islamic State in Iraq and the Levant/Islamic State in Iraq and Syria or Islamic State in Iraq and al-Sham), its renaming of itself as “Islamic State” combined with the declaration of a Caliphate and added to recent statements made by the regional government of Iraqi Kurdistan around its potential future have brought questions as to the continued existence of Iraq and potentially, Syria, as states to the fore. In their statement declaring a Caliph, Isis have explicitly referred to the Sykes-Picot Pact (the division by the UK and France of former Ottoman Territories during the First World War, for a repudiation of the claim that the colonial period has some role to play, see here) as coming to an end. In doing so, Isis are making use of the coverage of the First World War anniversaries in the West (for example ceremonies this weekend on the 100th anniversary of the assassination of Archduke Franz Ferdinand in Serbia) questioning the aims of that war and the narrative of the so-called “democratic” states standing for freedom against the imperial powers at Europe’s centre but also the legitimacy of the present status of Iraq and Syria from their inception as states following the collapse of the Ottoman Empire. In doing so Isis are attempting to challenge the tenets of legitimacy under which statehood currently operate but perhaps in considering their own claims to statehood ought to consider whether the same tools that brought Syria and Iraq into fruition may be employed again. The broader question for international law is whether this question of statehood ought to rest on apparently ‘objective’ factors that have little to do with internal legitimacy or historical events and ought to be replaced with a normative, perhaps human rights framework, or whether the present state of law is preferable even with its apparent lack of normative code.

Their claim to legitimacy stems quite clearly from an interpretation of Islam that enables Isis to act as they have but within these arguments there is a clear narrative conforming to the traditional claims to statehood and are interesting when set alongside other contemporary debates such as Ukraine and Kosovo. Traditionally international law has not cared as to the internal character of a state and the existence of a theocracy is certainly no bar given the acceptance of the Vatican (Holy See) or Iran as states. Indeed, by the early 1980s most states had stopped recognising governments on the basis that state recognition was what was required for international law and the recognition of governments was a political decision. Recent actions by European states as well as the US and Russia regarding the Arab Spring or the Ukraine does open the possibility that this policy may have changed as the Cold War political exigencies that caused the initial change are no longer relevant. Thus Isis’ character as a government is no bar to statehood. Of course this is not to suggest that other elements of international law such as rights pertaining to women, minorities and freedom of thought or expression would not be violated but rather to clearly argue that this is not related to statehood as generally accepted within international law. EU states did require the former Yugoslav and USSR Republics to conform to human rights protection before recognising them but this has not been replicated with any uniformity since that period. The UN aims at universal membership and thus is highly unlikely it would bar Isis’ Islamic state from membership if it to be recognised as a state.

Statehood as outlined in the Montevideo Convention requires;

(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states

In their statement today Isis claimed to fill the first and second criteria by making a definite claim to territory and population that runs from ‘northern Syria to the Iraqi province of Diyala north-east of Baghdad.’ Of course a claim does not necessarily reflect reality. Large swathes of these territories have very sparse populations and certainly both Damascus and Baghdad would argue that these borders are contested even if they currently do not exercise firm control over them. While there are no temporal requirements for control of population or territory when these are combined with the other two elements of Montevideo some form of long-term governance does appear necessary. Governments, as already discussed, do not have to conform to any particular form but the normal activities of governance such as control of the use of force or the functioning of utilities combined with some of revenue collection would indicate a government in control. Currently it is unclear as to whether Isis would meet such a standard. The last criteria, the capacity to enter into relations with other states, does not actually require other states to do so just that this is possible. For Isis this criteria does appear lacking if social media is discounted. While of course the entire legitimacy of such criteria as Montevideo could be dismissed by Isis in all probability it is what will be applied by other states. One potential barrier may be the right to self-determination which would require some form of consultation with the populations that are controlled by Isis but in itself self-determination is not a right to statehood. Whether self-determination can put a bar on declaring statehood once the other criteria are satisfied is open to question and has not been resolved by a recent International Court of Justice Advisory Opinion on Kosovo which touched upon this issue.

In contrast to Isis, the Government in Kurdish Iraq appear far better placed to fulfill these criteria though the advance into Kirkuk makes at least some of its border disputable but also gives it a further source of revenue. Their current boundaries are defined, (even if they intend to make further claims in Turkey or Iran), there is a permanent population (albeit with a current influx of refugees), there is a government and this government has representatives in other states, although they are not currently at the status of ambassador. The non-recognition of a new Islamic State or a new Kurdish state does not necessarily mean either the continuation or disappearance of Iraq and Syria. The rump of either can continue, as Ukraine and the former Yugoslav states have clearly demonstrated. While Isis’ claims cause an existential threat to all states in the region the Kurdish question is more problematic for Turkey, Iran and Iraq. The malleability of state definitions leaves open a range of possibilities for those states potentially wishing to recognise the latter over the former but the broader issue of the legitimacy of governments remains a political query where states have to decide whether they are going to claim to have normative values, including human rights particularly with regard to women, or whether statehood will be the de minimus Montevideo requirement only for recognition.

New borders are possible as are new states. The recent up surge of territories claiming statehood (in Ukraine, in Georgia, within Russia, Kosovo, potentially Scotland or the Basque region) may slowly lead to a change in how we go about identifying new states that sets a clear break between the Montevideo criteria and what followed the break-up of the USSR and Yugoslavia, but at present, the law appears devoid of any claim to require a government to be democratically elected, representative or that it grants any form of rights to its citizens.

Isis, the Caliphate and new states

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?’

[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

Elections to the United Nations Human Rights Council and the ‘democratic deficit’

We are delighted to welcome this post from Ruth Houghton on the recent elections to the UN Human Rights Council. Ruth is a Graduate Teaching Assistant and Ph.D. candidate at Durham Law School. There has been a significant response to last week’s membership elections for the United Nations Human Rights Council. Some commentators have criticised the human rights records of newly elected states, such as Saudi Arabia, China and Russia. Others have criticised the election procedure. The uncontested elections for seats in some regional groups coupled with the ‘undemocratic’ nature of some successful states are evidence of a ‘democratic deficit’ at the Human Rights Council. In fact, reports in the BBC that some groups were calling for the censoring of some states highlight a broader discourse on the relationship between democracy and the Human Rights Council. Being ‘undemocratic’ weakens the legitimacy of the Council, as the people it was mandated to protect do not play a part in decision-making. The credibility of the Council is undermined if states can challenge the authenticity of the elections.

The Human Rights Council has 47 rotating Member States that are drawn from regional groups. Seats are allocated according to equitable geographical distribution which means that the African Group hold 13 seats, East European countries have 6 seats, GRULAC (Latin American and Caribbean Group) 8 seats, Asia 13 seats, and WEOG (Western European and Others Group)  have 7 seats. Every year one third of the seats are open for election. This year, Africa and Asia had four seats each, and East Europe, GRULAC and WEOG each had two seats.

In the run-up to the creation of the Council, there was a debate over membership criteria. Whilst some called for strong exclusionary criteria that would prevent states that abuse human rights from becoming members, others advocated the universal nature of the Council. This controversy culminated in the adoption of ‘soft criteria’ only. States have to take into account the candidate’s ‘contribution to protection and promotion of human rights’ as well as their ‘voluntary pledges and commitments’. Whilst the removal of states for ‘gross and systematic violations’ is provided for in paragraph 8 of GA Resolution 60/251, Libya is the first state to have its Council membership suspended. This shows the strong reliance on the political will of states; a somewhat unreliable protector of human rights.

These concerns about membership criteria also touched on the democratic nature of states. The United States in 2004 called for the Council to include only “real democracies”. The criticisms following these elections and the report undertaken by Freedom House, an independent watchdog organisation, that assessed the democratic credentials of candidate states in 2012, highlights the preoccupation with the democratic nature of states at the Council. Being a democratic state, like having a good human rights record, is a criterion that would exclude certain states. This could, in turn, have undermined the ability of the Council to have influence over those states. Although this criterion was rejected in favour of having a universal forum, the requirement of democracy at the domestic level is worth exploring.

Democratic Member States ensure that there is at least some link between the domestic constituents and the international body because the states act as intermediaries. This link can be weakened by certain tactics that are used by states at the Council. The recent criticism of the elected Member States also focuses on the failure of these states to co-operate with the UN. Julie de Rivero, Geneva Advocacy Director at Human Rights Watch, is reported in the Guardian as stating that China is a ‘negative player’ at the Council. Rejecting initiatives to hold human rights abusers to account is one way of playing badly. States also participate in bloc voting and waste valuable time during sessions by making repeat and irrelevant statements. Democratic or not, states can align themselves with strong political blocs and adopt tactics to shield one another from the scrutiny of the Council. This weakens the link between the demos and the international body.

It is not enough then to ask for states to be democratic. Alfred de Zayas, the Independent Expert on the Promotion of a Democratic and Equitable International Order has highlighted that democracy should be seen at two levels; both the domestic and the international. The tactics used by states at the Council suggest that states do not always behave civilly and cooperate, even if they are democratic. One way to democratise the Council would be to have genuine elections for membership.

Human Rights Watch suggests that non-competitive elections weaken the Council because states with poor human rights records are permitted as members. There is an additional reason why these elections undermine the credibility of the Council; they fall short of domestic notions of democracy and party politics where two or more parties stand for election. Like the Commission before it, the Council is plagued by ‘closed slates’ during elections. A ‘closed slate’ or the choice of only one candidate per seat in a regional group, allows for human rights abusers to be elected, and without genuine elections the undemocratic Council loses legitimacy.  This year the seats for the African and GRULAC groups were contested, with South Sudan and Uruguay losing the elections. The other groups ran uncontested elections. It was reported that Jordan pulled out of the contest for a seat in the Asian group. This tactical move highlights the politicisation at the Council. It is this politicisation that can obscure any link between the international body and the demos as well as challenging the democratic nature and credibility of the Council.

Genuine elections, coupled with more interventionist supervision by the Council President, would go some way to ‘democratising’ practices at the Council. Achieving a strong link between domestic constituents and decision-making at the Council would require Member States to be democratic. The internal governance of a state cannot cure a ‘democratic deficit’ that this is maintained by the ‘undemocratic’ elections and practices at the Council.

Elections to the United Nations Human Rights Council and the ‘democratic deficit’

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

(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

Organization for the Prohibition of Chemical Weapons (OPCW) wins the Nobel Peace Prize

Contrary to many predictions this year’s Nobel Prize has gone to an international institution, the Organization for the Prohibition of Chemical Weapons (OPCW). Several organisations have won the prize before including, the UN, Médecins Sans Frontières, the International Labour Organisation, and controversially, in 2012 the EU. The OPCW is an organisation tackling a very particular issue, the dismantlement of Chemical Weapons. Awarding the Peace Prize to this form of organisation is somewhat rare though examples such as International Campaign to Ban Landmines (ICBL) and the Intergovernmental Panel on Climate Change (IPCC) provide some precedent for the choice. Of course, the OPCW has come to recent prominence due to the chemical attacks in Syria and Security Council Resolution 2118 which specifically requires Syria to co-operate with the OPCW in the destruction of its chemical weapons stockpiles. Although the Nobel’s Committee were clear that it was not just for this reason that they received the award. Indeed, disarmament is specifically mentioned in Alfred Nobel’s will.

The OPCW established in 1997, is a relatively new organisation, although a ban on the use of Chemical Weapons dates from 1925 under the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. The organisation itself emerged from the Chemical Weapons Convention which went further than simply banning their use but also a prohibition on the development, production, stockpiling and use of chemical weapons as well as their destruction. It has 189 state signatories, thus simply on numbers a very successful treaty. Of the non-signatories the wrangling between Egypt and Israel is one of the more interesting turns with the former promising to ratify if the latter signs the Treaty on the Non-Proliferation of Nuclear Weapons. Israel has stated that it will ratify the CWC if other non-parties in the region do so as well.

From their widespread use by all sides in World War I, the use of chemical weapons was almost immediately considered to be beyond the pale. Their indiscriminate nature, long-term effects and the suffering of those exposed to them meant that they were abhorred almost immediately after their first modern use in 1914. Chemical warfare was used both during and after the War though the latter occasions were generally outside of Europe by colonial forces against uprisings. Most notoriously by Mussolini’s forces in Ethiopia and Japanese forces in China, despite the 1925 Protocol. Their use in Yemen in 1963, in the Iran-Iraq War, by Iraq against the Kurds in 1988 remained the most high-profile state uses of these weapons until the recent attacks in Syria. While several terrorists groups, most notoriously Aum Shinrikyo’S use of Sarin gas in Tokyo in 1994 and 1995 also showed their devastating character. The Nobel Committee clearly stated that other uses of chemical weapons outside of warfare such as its use in the murder of millions in concentration camps during World War II also forms part of the importance of the organisation and its activities.

The Panel makes quite clear that the awarding of the prize should also bring attention to the lack of co-operation that the OPCW has experienced from states that hold chemical weapons stockpiles and are signatories to the Convention particularly regarding  the deadline for their destruction;

Certain states have not observed the deadline, which  was April 2012, for destroying their chemical weapons. This applies especially to the USA and Russia.

Given that the USA was at the forefront of the condemnation of Syria’s use of chemical weapons and Russia was its primary defender (though they disputed that it was the Syrian State that used the weapons) this is an important statement. The USA’s violation of its own international legal obligations regarding the holding of chemical weapons somewhat lessons its ability to engage in finger wagging.

The OPCW’s current activities in Syria now comes under more intense and renewed scrutiny. This places more pressure on the Organisation to succeed in meeting the nearing deadline for the completion of the disarmament task. Arguably their success in this activity ought not to be the basis on which this choice by the Nobel Committee is measured. Like many international organisations and unlike well known bodies such as the UN or the IMF, their activities often go unnoticed and their record of success in the destruction of these chemical stockpiles and monitoring of their potential creation is a more suitable basis for evaluation. While their may be some surprise that high profile individuals had not received the award, this choice emphasises the importance of international co-operation in the creation of law and organisations that hold back some of war’s worst excesses and fulfills Nobel’s intention to recognise the importance of disarmament in the maintenance of peace.

Organization for the Prohibition of Chemical Weapons (OPCW) wins the Nobel Peace Prize

Amnesty International's Annual Report for Northern Ireland and Ireland

amnestyintl.logo_.2Amnesty International’s Annual Report on Northern Ireland and Ireland was published last week  as part of its annual series of country reports. Globally, the report considered the world to be a more dangerous place for refugees and migrants and stated that countries were increasingly using the cover of ‘internal affairs’ to block full consideration of their human rights standards. These reports are part of a broader reporting process by governmental and non-governmental together with  global and regional bodies including state-led reports on individual countries’ commitments and abuses of human rights standards. Indeed, previously we have highlighted the US State Department’s Human Rights Reports, the Universal Periodic Review by the UN Human Rights Council and the UK’s FCO Human Rights’ Report, amongst others. Often, these reports are conscious political campaigns, such as the Regan administration’s initiation of State Department country reports during the Cold War or the Universal Periodic Review as a method of moving beyond past failures in the UN’s human rights’ accountability mechanisms.  Amnesty International, as a NGO, perhaps brings a more ‘independent’ overview of state activity, but even here, a country’s co-operation, or otherwise, may be critical in gaining access in order to compile the report. The priorities of a particular NGO may also alter the focus of such reports. Further, the ultimate utility of these kinds of general reports without any form of enforcement mechanism should be questioned, particularly when considerable resources are sunk into their compilation. At the very least, these reports offer an opportunity for countries to assess their human rights standards and in the case of critical reports, attempt, if possible, to save face or explain their poor standards of observation. Amnesty International historical record of accurate and influential reports makes their contribution particularly important.

The Report on Ireland focuses on prison conditions, the right to health, violence against women and girls, police and security forces, and constitutional and legal changes. In particular, the report criticised conditions in young offender institutions, though it did welcome the Government’s plan to end placement in St. Patrick’s for 16 year olds, the fact that 17 year olds would still be held there coupled with inadequate health and education facilities for young offenders, remained extremely problematic. The Report also stated that while the instigation of a process of investigation of serious complaints by prisoners was a step forward, this remained well short of what is required under the UN Torture Convention and mandated by the Torture Committee’s Report on Ireland in 2011. The 2011 Report had also highlighted the need for full investigations into the Magdalene Laundries and Amnesty also questions whether the Government has fully complied with its requirements on this matter. The Report mentions the Right to Health and particularly the death of Savita Halappanavar focusing on the lack of clarity in law on access to abortion, a point that the Oireachtas Committee would be well cautioned to consider. Amnesty also mentioned the Smithwick Tribunal on collusion with the IRA. The Report welcomed Ireland’s signing of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the Constitutional Convention and the passage of the Constitutional amendment on Children’s Rights.

The Report on Northern Ireland forms part of the broader report on the UK. Here, Amnesty focused on the continuing activity of paramilitary forces, in particular the shooting dead of prison officer David Black and the intimidation of elected officials and journalists by these groups. The Report also looked at the Inspectorate of Constabulary’s review of the Historical Enquiries Team which re-examines all deaths related to the conflict in Northern Ireland and examines whether those cases involving the army are human rights compliant. The Report also highlighted the ongoing investigations into the death of Pat Finucane and Blood Sunday. In similar terrain to previous reports on Ireland, the Report also looked at the instigation of the inquiry into institutional child abuse in Northern Ireland from 1922-1995. More generally, Amnesty highlighted questions relating to torture and ill-treatment by UK forces with regard to terror suspects, the impact of counter-terrorism measures, gender based violence and the UK’s lead of a new initiative regarding violence against women and girls in conflict and post-conflict scenarios as well as the UK’s treatment of refugees and asylum seekers.

The issues raised are familiar to anyone interested in human rights standards across Ireland and the UK. Yet, importantly, the report highlights the on-going issues, which have also been the focus of many previous Amnesty Reports and questions the good faith of both the Dublin and London Government as well as the devolved Government in Stormont to actually deal with rights questions, such as those relating to youth offending or women’s rights, that are often sidelined in favour of more publically acceptable human rights issues that are less electorally difficult. Repeated highlighting of these more difficult issues is perhaps the most important contribution that these forms of Reports can make, even if broader questions regarding their multitude and impact can be raised.

Amnesty International's Annual Report for Northern Ireland and Ireland

NUI Galway Conference on Mediation in Cases of International Family Conflict and Child Abduction: 18th May 2013

The School of Law and the UNESCO Child and Family Research Centre, NUI Galway in association with the Irish Centre for International Family Mediation will host a conference on 18 May 2013 entitled “A Conference on Mediation in Cases of International Family Conflict and Child Abduction”.  Leading Irish and international speakers and experts in the field and 
representatives of the EU Network of International Family Mediators will address the conference.  There will be Continuing Professional Development points to those who are eligible.  A conference fee of €75 is payable, which includes tea/coffee and lunch.   For more information on the conference, the conference programme and registration information see here.



NUI Galway Conference on Mediation in Cases of International Family Conflict and Child Abduction: 18th May 2013

The Irish Famine Tribunal: New York April 20 and 21

The Irish Famine of 1845-1852 (also known as the Great Hunger or An Gorta Mór) is one of the most catastrophic famines in modern history. It is estimated that over one million people died, two and half million emigrated within ten years, and almost 300,000 smallholdings disappeared.

On April 20-21, 2013, Fordham Law School will be hosting the Irish Famine Tribunal to examine the responsibility of the British Government, under international law, for the tragic consequences of this period. Was it the case, as John Mitchel famously (or infamously) asserted, that “the Almighty, indeed, sent the potato blight, but the English created the famine”?

The Tribunal will consider whether the British role during the Famine amounted to either genocide or a crime against humanity. Prosecution and defence teams, including law students from Fordham Law School and Dublin City University, will present their cases before an international panel of judges: Judge Fidelma Macken, recently retired from the Supreme Court of Ireland and the first female judge to sit on the European Court of Justice; Judge John Ingram, a renowned New York Supreme Court judge who has presided over many high profile criminal trials; and, Judge William Schabas, professor of international law at Middlesex University in London, chairman of the Irish Centre for Human Rights at the National University of Ireland Galway, and widely considered the world’s leading authority on genocide.

Joining them will be authors Tim Pat Coogan (“The Famine Plot: England’s Role in Ireland’s Greatest Tragedy”) and John Kelly (“The Graves Are Walking: The Great Famine and the Saga of the Irish People”), along with historians Dr. Ciarán Ó Murchadha (“The Great Famine: Ireland’s Agony 1845-1852”) and Dr. Ruan O’Donnell, Head of the Department of History at the University of Limerick.

In 1997, then British Prime Minister Tony Blair stated that “[t]hose who governed in London at the time failed their people through standing by while a crop failure turned into a massive human tragedy.” Does that failure, however, give rise to liability under international criminal law?

Amongst the other questions that will be asked:

·     Were the repeated, devastating failures of the potato crop beyond the power of any government, in the context of the time, to effectively manage?

·     Was Ireland particularly vulnerable to famine and, if so, why?

·     What relief efforts were made?

·     How responsive was the government in London to reports from relief officials in Ireland?

·     How influential were laissez-faire and providentialist ideologies?

·     Did British policy makers take advantage of the Famine to “reform” Irish society?

·     Was it only the British government that stood by while Ireland starved?

·     What part was played by landlords, merchants, big farmers, shopkeepers and, more generally, the Irish middle classes?


The Irish Famine Tribunal will be held at Fordham University Law School, 142 W. 62nd Street, New York City April 20: 10:00 am and April 21: 11:00 am.

If any of our readers are in the New York area they can RSVP at

For further information, please email: or contact Owen Rodgers at (917) 379-0955


The Irish Famine Tribunal: New York April 20 and 21