Moving to www.humanrights.ie
We are moving to humanrights.ie
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The move to humanrights.ie should be complete in a few days but for now the (now closed) blog at humanrightsinireland.wordpress.com and the new blog at http://www.humanrights.ie will exist in parallel.
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Minister makes speech on Middle East Peace Process
On Friday the 16th April the Minister for Foreign Affairs Mr. Micheál Martin T.D. made a speech to the Irish Congress of Trade Unions on the Middle East Peace Process. This follows his trip to Gaza in February which was discussed here and which was characterised as a humanitarian trip to highlight the crisis created by the blockade of Gaza which he also referred to.
In his speech to the ICTU the Minister acknowledged the work undertaken by the Trade Union movement and other civil society groups in Ireland in highlighting the situation within the Middle East. He also drew attention to the importance of having an informed debate on this topic.
Interestingly the Minister also stressed the importance of a resolution based upon a two-state solution and ‘the central importance of achieving progress towards a comprehensive settlement, based on a two-State solution.’ In doing so he lay emphasis upon the apparent acceptance of such a solution by Prime Minister Netanyahu in June 2009 where he stated that:
In my vision of peace, there are two free peoples living side by side in this small land, with good neighborly relations and mutual respect, each with its flag, anthem and government, with neither one threatening its neighbors security and existence.
The Minister further emphasised the Irish Government’s support for the US efforts led by Senator George Mitchell, who was heavily involved in the Northern Ireland peace process as well, in reaching a settlement. The strongest language in the speech was left to the issue current blockade of Gaza, where the Minister stated that,
Most of all, we need to end the completely unjust, unacceptable and counter-productive blockade of Gaza.
The Minister had previously condemned the building of 1,600 homes in East Jerusalem, joining other EU countries in doing so. In that statement the Minister called into question Israel’s commitment in achieving any progress within the talks.
The Minister also referenced the relationship between the EU and the countries of the Middle East, particularly Israel, and asserted that it was the Government’s position that such relations should be based upon the EU-Israel Association Agreement. This aim of this Agreement is to strengthen EU-Israeli ties and to eventually integrate Israel into EU policies. The EU’s language with regard to the Middle East conflict tends to be quite tame, a recent Declaration by HR Catherine Ashton stated that, ‘[t]he EU calls upon all parties to avoid any provocation and move towards lasting peace.’
Interestingly the Minister did not make any mention of the use of Irish passports in the assassination of Hamas commander Mahmoud al-Mabhhouh which we blogged about here. Indeed the Department of Foreign Affairs appears to have gone silent on the matter. This may be contrasted with the UK which expelled a Israeli diplomat in late March in response to state sponsored identity theft. This perhaps better reflects the Government’s largely guarded tone when discussing issues related to the Middle East.
Deaths in Custody
In the last ten days two men have died in or following Garda detention. On Saturday Johnny Nevin (39) of Tipperary was detained in Templemore Garda Station, became unwell and was transferred to Nenagh Hospital, where he died. On the 20 April a 39 year-old man was found dead in his cell in Tallaght Garda Station. Both deaths are now being investigated by the Garda Ombudsman Commission under s.102 of the Garda Siochana Act 2005.
The circumstances and causes of these deaths are not known and we should be careful to avoid speculation at this point until the investigations have been completed. There is no suggestion as yet that either man was injured by Gardaí. That said, that two men in their thirties should die in or following Garda custody sould be of grave concern to all. For the time that they were detained they were in the care of the State. As the UK Joint Committee on Human Rights stated in its report on deaths in custody:
When the state takes away a person’s liberty, it assumes full responsibility for protecting their human rights. The most fundamental of these is the right to life.
In addition to the right to life protected under Article 2 of the European Convention on Human Rights, there are also protections against torture, ill-treatment, inhuman and degrading treatment, the right to privacy and the freedom from discrimination. The duty under Article 2 entails a positive duty to safeguard life, which requires not only that states take positive steps to protect the lives of individuals whose lives are at risk but also to adequately investigate any instances of deaths in custody. There is ample case law from the European Court on the right to life and it makes clear that, for instance, if a person is at a heightened risk, even where the threat eminates from themselves, the obligation on the State is even higher (see Keenan v. UK).
Little work has been done on deaths in custody in Ireland though names like Terrence Wheelock and Peter Matthews will be familiar to many (we’ve posted about Mr Wheelock’s death here, here and here). That two men should die in/following garda custody demands the most serious of attention, and the most serious of questions to be asked of the system – including why were they in custody? should they have been there? did the gardai assault either individual? were there any medical conditions at the time of the arrest? were the individuals supervised appropriately at the station? what was the response of officers at the station on realisation of the illness/death of the individual?
At the heart of this issue is the harsh reality of the status of people detained, which the Joint Committee on Human Rights expanded on:
…the majority of people entering custody are extremely vulnerable individuals. Many of those who die in custody are young. Most of those who die are vulnerable or sick, with histories of mental illness and drug and alcohol problems. It must be recognised that by taking people into custody the state takes upon itself a particular duty of care, because of their vulnerability, and a special responsibility to ensure their protection and to uphold their human rights… The multiple vulnerabilities of the people detained, the acute need for medical treatment and drug and alcohol detoxification facilities, low educational achievement and poor communication skills, and the high rate of mental illness, are all found to a greater or lesser extent in all forms of state detention.
This unfortunate reality enhances the need for every precaution to be taken when an individual is detained. It is suggested that these two deaths should prompt either GSOC or the Garda Inspectorate to conduct an investigation into this issue as it affects detention in Irish police stations. Two deaths in one week, a week in which the Governor of the Dochas Centre has resigned, due in part to the conditions in the prison, should be ringing the loudest of alarm bells in terms of the treatment of persons in detention centres in Ireland. Of great dissappointment is that, from the media reports, the GRA conference this week (which I will review tomorrow) has failed to address this issue.
Indefinite inclusion on the Sexual Offences Register – R and Thompson v Secretary of State for the Home Department
In R and Thompson v Secretary of State for the Home Department the UK Supreme Court upheld the decisions of the Divisional Court and the Court of Appeal that inclusion on the Sexual Offences Register for the duration of an offender’s life was in breach of the ECHR. Statutory notification requirements for sex offenders were first introduced in the UK by section 1(3) of the Sex Offenders Act 1997, later amended by the Criminal Justice and Courts Services Act 2000. These provisions were repealed, and now, section 82 of the Sexual Offences Act 2003 imposes a duty on anyone sentenced to 30 months’ imprisonment or more for a sexual offence to notify the police of where they live and of any travel abroad. There is no right to a review of these notification requirements, and they endure for “an indefinite period”, as the Act terms it, which is essentially the remainder of a person’s life.
The respondents, R and Thompson, sought judicial review, contending that such absence of a right of review breached their right to privacy protected by Article 8 of the ECHR. In the Supreme Court, Lord Phillips emphasised that the core of the case was whether the interference with offenders’ Article 8 rights is proportionate, given the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others. He focused on three questions: “(i) What is the extent of the interference with article 8 rights? (ii) How valuable are the notification requirements in achieving the legitimate aims? and (iii) To what extent would that value be eroded if the notification requirements were made subject to review?” (para. 41).
He acknowledged the necessity for the authorities to be aware of the location of persons convicted of sexual offences that are being actively managed or supervised, noting that this level of supervision is determined, in part, by the risk of reoffending they pose (para. 45). When a person is subject to lifetime notification requirements but no longer poses any significant risk of committing further sexual offences and this is demonstrably the case, Lord Philips felt it would be pointless to maintain notification requirements given the incursions on Article 8, and indeed from a pragmatic sense felt it overburdened the responsible authorities (para. 51). This is an interesting and logical mix of principled and practical argument. Lord Phillips, at para. 57, concluded that “there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified.” He emphasised the viability of review in other jurisdictions, including Ireland, and noted that “This does not suggest that the review exercise is not practicable.”
In Ireland, s 8(3)(a) of the Sex Offenders Act 2001 requires notification for “an indefinite duration” if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for life or for more than two years, but s 11(1) allows for a court application to discharge this obligation on the ground that the interests of the common good are no longer served by his or her continuing to be subject to them. However, such an application cannot be made before the expiration of ten years from the date of the person’s release from prison.
Despite some predictable media coverage (see the Sun, “Rapists win new legal rights”), the decision is narrow in scope, and concerns the lack of review only rather than compromising the legitimacy or legality of the Register itself. Indeed, Lord Rodger emphasised that he saw “no basis for saying that, in themselves, the notification requirements, including those relating to travel, are a disproportionate interference with the offenders’ article 8 rights to respect for their family life, having regard to the important and legitimate aim of preventing sexual offending” (para. 64).
Keane on South Park, Islam and Hate Speech: A European Perspective
We are delighted to welcome this guest post from Dr. David Keane. Dr. David Keane is a Lecturer in Law, Middlesex University, United Kingdom. David researches and publishes on issues relating to human rights, minority rights, freedom of expression, racial discrimination and regional human rights systems. A full list of David’s publications can be accessed here. This is David’s response to my previous post South Park: ‘Religious Defamation’, Freedom of Expression & Human Rights
I hadn’t seen South Park in many years, but coincidentally happened to be watching last Wednesday when Episode 200 was shown. I realised that the portrayal of Mohammad dressed in a bear costume (although it turns out not to be him – see here) was going to re-ignite questions of religious defamation and freedom of expression, and wasn’t surprised to see the Guardian, for example, run with the story for the past three days. Liam Thornton’s interesting analysis on this blog has firmly supported freedom of expression and underlines South Park’s irreverent approach as an ‘equal opportunities offender’. As a human rights academic and a firm believer in freedom of expression, and indeed cartoons as an art form, I am always surprised to find myself often arguing against the cartoonists who are behind the series of recent controversies. I sometimes wonder whether it may be related to the fact that every time I read an article about the Danish cartoons or other such incidents, I detect a certain triumph in the portrayal of Muslims as intolerant of freedom of expression. They’re only cartoons! seems to be the central message.
Liam Thornton’s piece makes reference to an article of mine, and I’d like to go back to the central idea I had in writing it in order to explain my position. In much of the analysis on the ‘Danish cartoons’ controversy, there was an implicit understanding that cartoons are for children. How could people be offended by something which is essentially harmless juvenile fun? Yet the history of cartoon satire tells otherwise; cartooning has had a long political history, according to one study beginning as far back as 1360 BC with an unflattering portrait of King Tutankhamen’s father. This noble tradition of political dissidence, or the cartoon as social protest, spread from 17th century Holland, and morphed into the editorial cartoon we have today. Read more…
Governor of Dóchas Centre resigns
The Governor of the Dóchas centre, the main female prison in the state has resigned because of the “serious undermining” of her position and an “overall lack of respect by senior personnel in the Irish Prison Service”.
The first hand evidence given by Ms McMahon of the degree of overcrowding and its effects on rehabilitative regimes and simple day-to-day living gives an insight into the reality of what we have known for some time. Overcrowding is becoming chronic in the Irish prison system and that this is leading to increased tensions, diminished services and fewer opportunities to facilitate those imprisoned to change their lives. As the former Governor notes, what had been a flagship, progressive regime will be replaced by one in which tensions, self-harm and bullying would reappear, and in which health, educational and training facilities would become overloaded.
While this is extremely worrying, particularly as there appears to be no concerted strategy to deal with the issue of growing prison numbers in the short, medium and indeed long term, there is a concern arising out of Ms McMahon’s description of life in Dóchas which is a new one and perhaps even more significant and disquieting.
Ms McMahon states that the relationship between those in charge of the day to day regime within the Dóchas Centre and officials from the Irish Prison Service had deteriorated because of unannounced visits and lack of consultation in operational decisions, such as that to place bunk beds in rooms designed for one prisoner. Read more…
Guest Post: Kieran Walsh on Forced Marriage and Child Abduction
We are pleased to welcome a third guest post from Kieran Walsh. In this post, Kieran continues Mairead’s discussion of forced marriage in the Republic and considers whether child abduction law could be used in Ireland to protect children from being forced into marriage. He argues, in particular, for a child-focused approach to child abduction, which would allow the relevant law to be deployed effectively even outside the realm of custody disputes.
The recent forced marriage decision in Northern Ireland raises some interesting, and perhaps interminable, problems for cross-border levels of compliance with children’s rights and child protection instruments. As outlined previously by Mairead, the Northern Ireland courts granted an order to under the Forced Marriage (Civil Protection) Act 2007 which prevented two girls, aged 12 and 14, from travelling to Pakistan where they were to be married. Ireland has no similar means of protecting children from forced marriage.
South Park: ‘Religious Defamation’, Freedom of Expression & Human Rights
*Spoiler Alert: This post contains some spoilers to the South Park episodes “200” and “201”. In Ireland and the United Kingdom South Park airs on Comedy Central. Comedy Central has not aired the episode “201” in Ireland or the United Kingdom. The episode “201” has been uploaded (illegally) onto a variety of sites.
HRiI has discussed extensively the issue of criminal blasphemy in Ireland, over the last few months, see, here, here, here, here, here and here. Contributors to these posts noted Ireland’s hypocrisy on the issue, and the threats which this legislation posed to freedom of expression. The popular Comedy Central show South Park celebrated its 200th episode recently. In typical South Park fashion it dealt with a number of pressing (and not so pressing) issues. A central focus of both the 200th and 201st episodes (as it was in the episodes Cartoon Wars: Part I and Cartoon Wars: Part II) revolved around the religious prophet Muhammad and the controversy regarding depicting him in human form. A number of groups who did not want to be ridiculed (celebrities and persons with red hair), sought Muhammad’s ‘goo’ which they believed would make them impervious from public ridicule or criticism. In the South Park Universe, Muhammad is part of the Super Best Friends, a group of religious figures (plus one) who help those in need. The group consists of Jesus Christ, Buddha, Muhammad, Krishna, Joseph Smith, Lao Tzu, Moses and a character called Sea Man. The Super Best Friends were introduced to the South Park Universe in 2001, and as the picture to the side shows, there was no controversy for depicting an image of Muhammad (to the right of Jesus). However, with the publication of the Danish Cartoons and the resulting violence (see here, here, here, and to view the controversial cartoons see here), Comedy Central refused to air the image of Muhammad. It had initially been thought that the 200th episode depicted Muhammad dressed up in an oversize bear outfit, harking park to the Sudanese controversy. However, in the 201st episode it was revealed that Muhammad was not in the bear costume. For the whole of the 201st episode, images of Muhammad were censored and Muhammad’s name was bleeped from the dialogue. In addition, large portions of the show were bleeped when a number of the characters tried to suggest what could be learned from the problems the characters faced in the episode. The creators of South Park, Trey Parker and Matt Stone, had their addresses published on extremist website forums and suggested they would face a similar fate to Theo van Gogh (see here, here, here, here and here).
Is such gratuitous mocking of religion permitted under human rights law? Do human rights protections extend to those who wish not to have deeply held beliefs ridiculed in a crass (or any other) manner? Read more…
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Human Rights in Irish Legal History: Mallinder on the 1969 Amnesty in Northern Ireland
For millennia, amnesty laws have been used across the world by governments whose legitimacy and authority have been threatened by rebellions and civil unrest (See eg Robert Parker, ‘Fighting the Siren’s Song: The Problem of Amnesty in Historical and Contemporary Perspective’ (2001) 42 Acta Juridica Hungarica 69). They have been used in the midst of violence as counter-insurgency measures or efforts to diffuse tensions. They are also a common feature of peace agreements (For examples of peace agreements containing amnesty provisions, see the Transitional Justice Institute/INCORE Peace Agreement Database). Indeed, Article 6(5) of Additional Protocol II to the Geneva Conventions 1977, which is the only international human rights or humanitarian law treaty to explicitly mention amnesty laws, calls upon state parties to enact the ‘broadest possible amnesty’ at the end of non-international conflicts. The rationale for this provision is that an amnesty is a necessary prerequisite to encourage combatants to surrender their weapons and reintegrate into society, and that in contrast efforts to pursue retribution could risk further inflaming tensions. However, as was evident in Northern Ireland during the Consultative Group on the Past’s public consultations, amnesty laws are often strongly opposed by victims’ groups and human rights activists (Philip Bradfield, ‘Victims hit out over talks on amnesty’ Newsletter (17 January 2008); Chris Thornton, ‘“Don’t mention the war”, 2,000 letters tell Eames’ Belfast Telegraph (21 February 2008)).
This opposition argues that amnesty laws violate victims’ rights and risk undermining the rule of law (for a more detailed discussion of the international legal framework relating to amnesty laws and the arguments for and against their use, see Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide (Studies in International Law, Hart Publishing, Oxford 2008)). Such debates often overlook the fact that during the Northern Irish peace process there have been several ‘amnesty-like’ policies for encouraging disarmament, incentivising truth recovery and for releasing political offenders from prison. In addition, as this post will explore in relation to the 1969 amnesty, amnesties laws have been used in Northern Ireland’s past and have even benefited individuals who have opposed amnesty measures in the peace process (See the comments of Ian Paisley Sr, pictured above, during House of Commons debates on 13 October 2005).
In May 1969, the new Northern Irish Prime Minister, James Chichester-Clarke, decided with the support of the Attorney General and his cabinet at Stormont to introduce a general amnesty for ‘events associated with, or arising out of, political protests, utterances, marches, meetings, demonstrations’ occurring between 5 October 1968 and 6 May 1969 (Northern Ireland Information Service Press Release, 6 May 1969). This amnesty was an executive decision rather than enacted legislation. According to the Attorney General, it applied to criminal proceedings that were pending, any future proceedings, the collection of fines already imposed, and provided for the remission of sentences for those already convicted (Northern Ireland Information Service Press Release, 6 May 1969).However, the Attorney General specified ‘that proceedings would be taken against any of those persons concerned in any way with acts of sabotage who could be brought to justice’ (Northern Ireland Information Service Press Release, 6 May 1969).
The amnesty was introduced within a context of growing civil unrest and aimed to de-escalate the rapidly escalating conflict, or in the words of the then Prime Minister, to ‘wipe the slate clean and look to the future’ (Northern Ireland Information Service Press Release, 6 May 1969). It had a wide application to all criminal offences associated with the demonstrations, including attacks on civilian homes, but excluding ‘acts of sabotage’. It was designed to cover both civilians and members of the Royal Ulster Constabulary, and it was unconditional. Among those released from prison in accordance with the amnesty were Major Ronald Bunting and the future First Minister, Ian Paisley.
The release of Mr Paisley, who had already been convicted and was serving part of his sentence (According to the papers from the time, Paisley apparently chose to be imprisoned rather than sign a bail bond.), was perhaps the most contentious issue for the cabinet when debating the amnesty, as they viewed him as too much of a security risk. Stormont Cabinet papers from the time record that after other prisoners had been released under the amnesty, Ian Paisley wrote to the Stormont government demanding that he and Major Bunting be included in the amnesty. Prime Minister Chichester Clarke described the ‘threatening tone of the letter’ as ‘deplorable’, and argued that ‘if the Paisley faction returned to the streets, the entire story of street agitation might be repeated’. Despite these reservations, Paisley was eventually released under this amnesty. However, unfortunately, this amnesty policy failed to stem the violence and it was soon followed by the outbreak of The Troubles.