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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.

Tagged: Department of Foreign Affairs, Gaza, ICTU, Israel-Palestine ]]> http://humanrightsinireland.wordpress.com/2010/04/29/minister-makes-speech-on-middle-east-peace-process/feed/ 0 aoifemod dfa_topban_du000668 http://humanrightsinireland.wordpress.com/2010/04/28/deaths-in-custody/ http://humanrightsinireland.wordpress.com/2010/04/28/deaths-in-custody/#comments Wed, 28 Apr 2010 20:36:10 +0000 vconway http://humanrightsinireland.wordpress.com/?p=4542 ]]> 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.

Over the next three weeks a number of our regular contributors and guest bloggers will consider key events in Irish legal history which have had an impact on the political institutions in place in Ireland and in particular upon questions of human rights. The first guest post in this series is contributed by Dr Louise Mallinder, a lecturer in human rights and international law at the Transitional Justice Institute, University of Ulster. It explores the attempts by the Stormont Parliament to institute amnesties for particular crimes in the late 1960s and their role in the descent towards The Troubles.

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.

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).

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.

Cartooning has also, from an early point, engaged in racial intolerance. The Irish context has already been mentioned above, and the infamous Punch caricatures of hideous ape-faced Irish thugs led one 19th century commentator to wonder why some irate Celt didn’t conform to stereotype and club the cartoonist with his shillelagh. More recently Tintin in the Congo was banned in the UK for containing images of ‘hideous racial prejudice’, according to the Commission for Racial Equality. If you were to buy a copy now in a UK bookshop, it comes sealed in plastic with a warning that it portrays colonial stereotypes which are no longer relevant. It has also been transferred from the children’s sections of bookshops.

Cartoon portrayals of religion are less common; political and racist cartoons flourished in Victorian England but there would have been no question of publishing attacks on Christianity. One interesting example on the website of the Political Cartoon Society tells of an early depiction of Mohammad showing deference to a then English cricket hero, Sir Jack Hobbs, in the Indian version of the Morning Post some 81 years ago. It caused outrage according to a Calcutta correspondent at the time, with Muslims ‘convulsed in rage’. Anti-Semitic cartoons were prevalent in the twentieth century, epitomised in infamous Nazi publications such as Die Sturmer with Jewish figures the victims of vicious ridicule and hatred, often through zoomorphic images such as a Jewish octopus straddling the world.

By contrast cartoonists are also vulnerable to repression. In Saudi Arabia in 2007, two newspaper editors were sentenced to prison and hundreds of lashes for printing a comic strip which questioned the existence of God, while in Iran a cartoonist received a similar sentence for drawing a soccer player adjudged to resemble the late Ayatollah Khomeini. Democracies are also open to stamping out unwanted cartoons; two Spanish cartoonists were fined in 2007 for defaming the royal family, while in the US a satirical caricature of George Bush based on a Vietnam war photo, in which the former President was depicted holding a gun to his head which symbolised the Iraq war, prompted a visit to the offices of the LA Times by the US Secret Service.

But the contemporary debate has raged around depictions of Mohammad, as referenced in South Park. The subsequent threats to Parker and Stone have been documented in the newspapers. The extent of freedom of expression protections in the US can be divined from the fact that there has been no immediate call for prosecution of the group Revolution Muslim who sent the animators a photo of the murdered Dutch film-maker Theo Van Gogh. In order for such a case to be taken, the prosecutor would have to prove incitement to violence. This is also the standard found in Article 20 of the International Covenant on Civil and Political Rights 1966. However the rest of the world does not exhibit such light hate speech laws, notably Europe.

There have been very few cases in the European Court of Human Rights on hate speech. This is because usually such cases do not pass the admissibility stage. The earliest example, Glimmerveen and Hagenbeek v. The Netherlands (1979), involved the members of a Dutch far-right party who passed out leaflets addressed to ‘white Dutch people’ and called for an ethnically homogenous state with the expulsion of ‘foreigners’. They were prosecuted in Rotterdam, and their claim of a violation of Article 10 ECHR (freedom of expression) was rejected by the European Commission at the admissibility stage. The decision was based on Article 17 rather than Article 10. Article 17 reads:

‘Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein (…)’

The subsequent admissibility decision in Kuhnen v. Germany (1986), similarly outlining a pamphleteer’s desire for German racial unity in the face of ‘bolshevists, Zionists, foreign workers’ etc., was rejected on the basis of Article 10 and Article 17, with Article 17 used as a guiding provision while making the decision under Article 10. Thus the interference in the Article 10(1) right was justified under Article 10(2), although the Commission had regard to Article 17.

A series of French cases decisively shifted the ECHR approach to Article 17. In Lehideux and Isorni v. France (1998), the Court carved out a particular role for Article 17; Holocaust denial. The plaintiffs were prosecuted for glorifying the achievements of Phillippe Pétain in a Le Monde advertisement. France argued that the interference was justified under Article 17 and Article 10(2). The Court ruled that the offending document sometimes omitted important historical facts, ‘but does not belong to the category of clearly historical facts – such as the Holocaust – whose negation or revision would be removed from the protection of Article 10 by Article 17’. Since Lehideux, Article 17 is applied with strict scrutiny to cases of Holocaust denial only. Thus in Garaudy v. France (2003), the plaintiff was prosecuted for a book which wrote about the ‘myth of the Nuremberg trials’ and the ‘myth of the Holocaust’. The application was deemed inadmissible, as the intervention was held to be justified under Article 17.

What is the significance of using Article 17 instead of Article 10? The result is an absence of a balancing process. Article 10 cases take the right to freedom of expression in Article 10(1), and weigh this against the public interests in Article 10(2). This is found for example in the Jersild v. Denmark (1996) case, in which a journalist was prosecuted for relaying the opinions of a group of racist youths known as the ‘Greenjackets’. While prosecution of the youths would have been justified under Article 10(2), prosecution of the journalist was not held to be necessary given the serious context of the piece, which was a relevant investigation into far-right movements in Denmark. This is a rare example of hate speech passing the admissibility stage and being upheld by the Court. There is no such balancing process under Article 17; speech is restricted solely because of its content.

Consequently Europe exhibits a three-tiered approach to hate speech. At the top is Holocaust denial; it is severely restricted under Article 17, with no ‘balancing process’ taking place. In the middle is racist speech; it is protected under Article 10(1) but states are justified interfering with that protection provided they meet the criteria of Article 10(2). This necessitates a ‘balancing process’, seen in the Jersild case, although it should be noted that most instances of racist speech would not pass the admissibility stage. Finally there is religious intolerance, or religious defamation, seen in the Danish cartoons. If Denmark had decided to prosecute Jyllands Posten, would the magazine have succeeded in invoking their Article 10(1) right to freedom of expression? The answer would appear at present to be no, under past rulings on blasphemy such as the Liebeskonzil v. Austria (1982) decision, although unlike cases of racist speech, such religious cases will pass the admissibility stage. Also there are calls from influential commentators, for example Kevin Boyle, urging reform of European support for blasphemy prosecutions.

The failure to prosecute the Danish cartoonists has not received much attention, but it is quite remarkable from a legal point of view. The Danish Penal Code has a ‘racism clause’ and a ‘blasphemy clause’, the latter of which makes it a criminal offence to publicly mock or degrade the religious beliefs or worship of any religious community. Quite how the Danish Prosecutor decided that the cartoons did not satisfy this provision has never been explained. He stated only that:

‘Even though… the fact that some of the cartoons were satirical caricatures of the Prophet Mohammad, and that as such, given the central role of Mohammad for Islam, they might imply ridicule of or express disdain for Muslims’ religious beliefs or worship in the sense protected by the blasphemy clause… a concrete interpretation and evaluation of the cartoons led the Public Prosecutor to the judgment that the cartoons did not, after all, constitute an infringement of the clause’.

This extraordinary piece of reasoning did not feature at all in the debates, which took the view that Denmark was an open society which would never prosecute for a simple cartoon, even though they quite obviously constituted blasphemy and its laws couldn’t be clearer. I am not advocating that the cartoonists should have been prosecuted – I am only drawing attention to the fact that Europe’s laws in this area are murky, with a strong hint of double standards. Holocaust denial (protection of historical belief?) is pounced upon; attacking Muslim beliefs is something of a free-for-all despite unequivocal legal rules to the contrary in many European states.

As such, Europe awaits the first real case on these issues at the regional level. I believe that this could potentially be provided by Geert Wilders, who is presently on trial in Holland for incitement and discrimination over his comments attacking Islam and his film, Fitna. If he is prosecuted, there will certainly be an ECHR appeal. It will come as a surprise to many commentators who imagine Europe to be a free space for all ideas however abhorrent, but on past rulings the Court will hold the prosecution necessary under Article 10(2). Not doing so would mark a major departure. This could happen, given the depth of feeling that a change is required. If Europe wishes to allow untrammelled criticism of Islam, it will need to reconsider other restrictions on hate speech, including blasphemy laws and Holocaust denial, in the interests of consistency.

There cannot be too much of a disconnection between these cartoons and Muslims as a vulnerable minority in Europe and the US. The growing sense of being under attack, seen in the banning of the full Islamic veil in France, and the Swiss vote banning minarets (an outrageous violation of freedom of religion), is fuelling a sense of entrenched discrimination. The constant media crowing over Muslim reactions, seen as a self-fulfilling prophecy of the cartoons, seems disproportionate. I am an admirer of cartoonists, and appreciate the art and style of bandes dessinées (a far better descriptor than the English ‘comics’, which again has that misplaced sense of juvenilia). But the power of cartoons should not be underestimated, and just as we regard past racist stereotypes such as Tintin’s adventures in the Congo with distaste, it is possible that in the future, these attacks on Islam will be viewed with similar repulsion.

The argument runs that religion is different from race as it is chosen rather than inherited; but for many people, religion is a primary source of identity, perhaps more so than their ethnicity. Their bewilderment (and I am talking about ordinary Muslims, not the extremists) in the present climate should at least be understood. Criticism of religion, like criticism of anything, is essential. But the cartoons have always been malevolent, produced in a climate of fear and discrimination against the Muslim minority. Should South Park censor itself? No, I don’t think so. But I also refuse to join those who are delighted to proclaim that this is another blow for free speech.

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.

Ms McMahon expresses the view that the Irish Prison Service is afraid of media coverage suggesting the regime in Dóchas is too relaxed. In addition, the former Governor believes that a decision has been made to “introduce a more punitive regime involving holding as many women as possible in an already overcrowded centre” and that a new policy of denying temporary release to low-risk prisoners had developed.

Irish prison policy-makers can be criticised for allowing the prison system to ‘drift’ along, allowing the neglect of penal regimes and exhibiting a lack of energy in prison policy-making over several decades. Inertia has been a major feature of Irish prison policy-making since the foundation of the state. As O’Donnell writes:

Debates about crime and punishment in Ireland tend to have a staccato quality. There are moments of intense concern, often after a particularly heinous killing, and then long periods of stasis. Sometimes fundamentally new ways of doing justice are promised. But they are not always introduced,their impact is seldom assessed, and the focus can waver.

The background is of a criminal justice system where reform is slow and piecemeal. It took sixty years for revised prison rules to appear; the Probation Service is still guided by a piece of legislation more than a century old; and it remains impossible to link the information systems of the various criminal justice agencies.

One of the advantages of such a state of affairs is that the country
has been insulated from the punitive chill that has so affected England and the USA. Another is that research opportunities are many and varied and the scope for international collaboration is vast.

Ms McMahon’s view that a more punitive turn is evident in the thinking of penal administrators may suggest that this state of affairs is beginning to come to an end. If a more determined effort to enforce a punitive agenda is becoming apparent, this is a matter of major concern. If this is the case, no longer could it be said that overcrowding and poor conditions are, somehow, ‘accidental’ by-products of a lack of coordination, planning and strategy. No longer could it be argued that such conditions were an unfortunate by-product of a lack of forward-thinking or long-term perspectives on penal planning.

It would be quite easy to impose a punitive agenda in the Irish penal system. It appears that individual Ministers and civil servants have an influence over penal direction which vastly outweighs that of interested groups, criminal justice professionals and even the legislature. Conditions are already such that regimes are difficult and facilities limited.

If it is the case that a concerted effort to make the Irish prison system more harsh, then questions need to be asked: where is this coming from; do we want it and where will it lead us?

Read more from the Irish Times on Ms McMahon’s resignation here and here.

For the comments by a member of the Mountjoy Visiting Committee on the “appalling conditions” in that prison read here.

For more on the Irish prison system, read here.

We are pleased to welcome a third guest post from

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.

One avenue of cross-border cooperation which may strengthen protection against forced marriage is child abduction. This is widely regarded as one of the more complex legal issues, an unsurprising view given that it is governed by the Hague Convention, the Luxembourg Convention, Brussels II bis Regulation and the Child Abduction and Enforcement of Custody Orders Act 1991. A child abduction/forced marriage scenario may arise in a number of ways. First, the child may be removed from either the Republic or the North to a state in which the child is to be married. For this, a forced marriage act is the best protection available. Alternatively, a child resident one side of the border may be brought to the other side. This latter scenario can be subdivided in two ways. Either a child could be abducted to one part of the island in order to facilitate travel to a third state (ie, South to North to Pakistan) or a child could flee (or be brought) across the border seeking protection.

While the legal framework surrounding child abduction was initially designed to protect rights of parents to custody and access, it is possible to argue that it has a significant protective element based on the child’s best interests. In PS v AS [1998] 2 IR 244, Denham J argued that the Hague Convention is based on the concept that the child’s interests are paramount. However, in Re R (abduction: consent) [1999] 1 FLR 828, it was made clear that the welfare of the child is not paramount in abduction proceedings.

Article 3 of the Hague Convention sets out that the removal of a child from or the retention of a child is considered wrongful if the action is in breach of a right of custody. The Convention also applies to rights of access. These phrases must be interpreted independently of the technical meaning ascribed to custody and access in family law proceedings and that a central aim is to ensure stability in a child’s life. However, the instability resulting from clandestine North-South journeys can be justified in a number of ways. Most pressing for a forced marriage scenario is the defence to an application to return the child that the child faces a grave risk of physical or psychological harm or if they would otherwise be placed in an intolerable situation. This is set out in Art 13(b) of the Hague Convention.

Ordinarily in abduction cases, a left behind parent will ask the court in the country to which the child has been taken to return them. It is only in quite exceptional cases that the return will be refused. So in cases where abduction takes place to facilitate forced marriage, return of the child could be demanded. In cases where the child is fleeing marriage, return could be objected to on the basis that forced marriage constitutes a grave risk of harm. In CK v CK [1994] 1 IR, it was stated that the child’s best interests would be best served by returning them to the state of their habitual residence. Yet if returning them exposed them to the risk of forced marriage, clearly the Art 13 (b) defence would be successful. The Canadian Supreme Court in Thompson v Thompson [1994] 3 SCR 551 stated quite simply that “from a child centred perspective, harm is harm”. This statement was endorsed by the Irish High Court in CN v PKD [2004] IEHC 418. It would appear that if, from the child’s perspective forced marriage is harmful or places them in an intolerable situation, any cultural arguments about the validity of forced marriage become irrelevant. This argument is strengthened by Art 24.2 of the EU Charter of Fundamental Rights which makes clear that in any matter affecting children, their best interests must be a primary consideration. This would likely result in an undeniably liberal and universalist manner of interpreting the Convention’s provisions. This approach is to be welcomed. It may herald a new child focussed manner of applying the Convention. Given the problems caused by the desire to focus on parental custody and access rights, it may be that the desire to prevent forced marriage may allow a greater emphasis on children’s best interests, albeit by the back door.

It is important to note that while the vast majority of cases child abduction involves parental dispute, the state also has a role to play. Under Article 2 of the Hague Convention a contracting state has to take all appropriate measures to ensure the implementation of the Convention. Article 2 makes clear “the most expeditious procedures” should be used to enforce the Convention. This usually means bringing application on an ex parte basis, and also by permitting the state to actually play an active role in proceedings.

A child faced with forced marriage may be either a ward of court or be the subject of orders under the Child Care Act 1991. The state would be entitled to invoke s. 37 of the Child Abduction Act in a case such as this. Section 37 permits the Gardaí to detain a child who the court fears is about to be removed from the state. Applications for injunctions preventing the removal of the child from the state can also be made.

S. 9(2) of the Child Abduction Act states that “where the Central Authority in the State [in Ireland, this is the High Court] receives any such application [seeking the return of the child] and is satisfied that the application is an application to which the Hague Convention applies, it shall take action or cause action to be taken under that Convention to secure the return of the child.” This obliges the High Court to cause action to be taken to ensure that the application is made.

The ability of the state to bring an application under the Act is further provided for by Order 133 Rule 2 of the Rules of the Superior Courts which permits the Minister for Justice to bring a child abduction application on an ex parte basis. The decision of DGH v Minister for Justice [2003] IEHC 47 makes clear that while the Minister is under no obligation to bring an application under Ord. 133, it is possible for them to do so if they see fit. So while, as in the G and D case, the parents may both support the marriage, children currently in Ireland need not be without protection if the state has intervened by way of warship or the Child Care Act. This is of course dependant on the state becoming involved in the first place, which is itself not a guarantee.

While it is preferable to have specific legislation dealing with protection from forced marriage, child abduction may provide a measure of relief prior to such a preference becoming a reality.

*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?

The Universal Declaration of Human Rights, as well as the core international human rights treaties, protect both the right to freedom of expression, as well as the freedom of religion.  Article 19 of the ICCPR, whilst protecting the right to freedom of expression, allows limitations on the basis of

(a) respect for the rights or reputation of other (b) the protection of national security or of public order (ordre public), or of public health or morals

The right to freedom of religion and conscience is limited through restrictions on types of religious manifestation:

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

In addition, Article 20(2) ICCPR states:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

In Dr. David Keane’s article, Cartoon Violence and Freedom of Expression (subscription required), Keane outlines the history of cartoon satire, as well as the use of cartoons to promote racial, national and religious stereotypes (noting in particular anti-Irish cartoons , anti-Semitic cartoons and cartoons stereotyping African-Americans). At the same time,Keane notes that cartoonists have been severely punished for perceived slights against religious and political leaders.  Human Rights Watch recognised the offence caused by the cartoons, however adopted an approach whereby freedom of expression, no matter how distasteful, should be permitted. The European Court of Human Rights in Otto-Preminger Institut held that persons have a right not be insulted for their religious beliefs, where the method of so doing is “gratuitously offensive” or does not contribute to ” public debate capable of furthering progress in human affairs”.

The United Nations in two different reports (here and here), appeared to adopt different conclusions. The Committee on the Elimination of Racial Discrimination, as Keane notes, did not deal with the matter head on, but reminded Denmark of its obligations to ensure the prosecution of racial hate crimes.   After providing an overview of the UN’s Cartooning for Peace, Keane concludes:

…cartoonists must be able to work free of threat, irrespective of their viewpoints, as long as they stay within the parameters of the law. It is the law that must be changed if we are to decide that religious defamation cannot be tolerated. Ultimately, and unless that happens, restraint and consideration are required on the part of cartoonists. However, these are not traits that go easily with the profession.

The only outright restriction on free speech which exists under international human rights law is contained in the Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Article 4 ICERD states:

States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

A large number of states parties have reservations to Article 4, with a number of countries, including Ireland, stating that:

the right to freedom of opinion and expression and the right to peaceful assembly and association may not be jeopardised…

Keane is correct to point out the juncture which exists between racial and religious discrimination. However, the actions or opinions of some, while racist and fuelled by hatred of certain religious communities, should not render all criticism or satire of a religion as off-limits. It is unclear why cartoonists should show ‘restraint and consideration’ when engaging in satire against religion. Why should this standard not be applied to criticism of all non-religious beliefs which do not expound hate or racism? The prohibition on depicting Muhammad may form part of the core beliefs of  some within Islam  and his depiction may be deeply resented by adherents, yet it is unclear why others should be obliged to conform with this religious obligation. While international human rights law protects the right to manifest ones religious beliefs, the relevant restrictions on limiting freedom of expression do not specifically prevent ‘religious defamation’.  The Human Rights Committee, which monitors state party compliance with the ICCPR, has specifically stated in General Comment No. 22 that:

Article 18.2 bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs…

While freedom of expression should be limited where it incites hatred against a particular racial or religious group, this should not be confused with criticism or ridiculing of core religious beliefs or values. The legitimate limitations on freedom of expression should not be utilised to prevent actual or perceived slighting of religious beliefs. While some may disagree with my interpretation of human rights law in this controversial area, there is a very clear unconditional prohibition on the right to use violence, or the threat of violence, to assert beliefs and practices onto persons who do not share those religious views. The adoption by the UN Human Rights Council of a non-binding resolution on religious defamation is most unwelcome, and attempts to place dogmatic assertions surrounding ‘sacred persons’ above the right to criticise religion. Attempts to criminalise ‘religious defamation’ at the international level have recently failed.

South Park is a show which  purposefully courts controversy and seeks to gratuitously mock all religions. Throughout its 201 episodes it has (as illustrative examples) made continuous reference to Jewish stereotypes (see here, Swetswise subscription required); portrayed Jesus Christ in less than flattering situations;  had a “dum…dum…dum…” tune to the background of an episode which discussed the origins of the Mormon religion; makes regular derogatory remarks towards adherents of Scientology (see here) and has shown Buddha snorting cocaine. At times South Park has made some fairly harsh comments towards Muslims, (as an indicative example see here). Conversely, atheists have also been ridiculed.  Most notably, when a number of South Park parents converted to atheism, in the episode Red Hot Catholic Love. In another episode, Richard Dawkins (pictured right) came in for ridicule due to his perceived aggressive promotion of non-belief and the episode suggested that religions were unfairly blamed for violence and war (see here and here) which would exist even if religions did not. The purpose of South Park episodes “200″ and “201″  were not to engage in religious hatred or hate speech towards the Islamic community. The purpose was to show the mental acrobatics which have to be gone through to justify the limitation of freedom of expression from mocking of one groups beliefs, yet allowed to freely ridicule the religious beliefs of others. In the words of the South Park creators, they are “equal opportunity offenders”. To those who are offended by shows like South Park, which does not provoke hatred on the ground of religious belief, the solution is simple, change the channel.

UPDATE: Dr.  David Keane has responded to this post, and the wider issues raised within it-Keane on South Park, Islam and Hate Speech: A European Perspective.

*All picture credits for South Park are copyright of Comedy Central.

* UN Human Rights Committee logo is copyright of the United Nations.