Dickson on the ECHR and Northern Ireland

Congratulations to Brice Dickson, professor of international and comparative law and director of the human rights centre at the QUB School of Law, whose new book entitled The European Convention on Human Rights and the Conflict in Northern Ireland has just been published by Oxford University Press. According to the blurb:

This book provides the first comprehensive account of the role played by the European Convention on Human Rights during the conflict in Northern Ireland from 1968. Brice Dickson studies the effectiveness of the Convention in protecting human rights in a society wracked by terrorism and deep political conflict, detailing the numerous applications lodged at Strasbourg relating to the conflict and considering how they were dealt with by the enforcement bodies. The book illustrates the limitations inherent in the Convention system but also demonstrates how the European Commission and Court of Human Rights gradually developed a more interventionist approach to the applications emanating from Northern Ireland. In turn this allowed the Convention to become a more secure guarantor of basic rights and freedoms during times of extreme civil unrest and political turmoil elsewhere in Europe.

The topics examined include the right to life, the right not to be ill-treated, the right to liberty, the right to a fair trial, the right to a private life, the right to freedom of belief, the right to freedom of expression, the right to freedom of assembly, and the right not to be discriminated against. The book argues that, while eventually the European Court did use the applications from Northern Ireland to establish important human rights principles, their development was slow and arduous and some gaps in protection still remain. The book illustrates the limits of the European Convention as a tool for protecting human rights in times of crisis.

I look forward very much to reading this. The ECtHR’s approach to the conflict in Northern Ireland was, in many cases, very ‘light touch’ and deferential although, as the blurb notes, it became more rigorous over time. Although the book deals with the specific context of Northern Ireland I am sure that the theories and arguments will be generalisable beyond that. As NI is one of the main contexts within which the limits and possibilities of the Convention’s capacity to be effective in times of terroristic crisis I have no doubt the book will be of general interest to readers grappling with these difficult questions.

Human Rights Lexicon: Security v Rights and the Case of Binyam Mohamed

In this, the third contribution to today’s Human Rights Lexicon, Colin Murray–a regular contributor to HRinI–takes on the tensions between rights and security looking at them in the context of the Binyam Mohamed Case.

Redact, Retain, Rewrite? The Saga of Binyam Mohamed and Paragraph 168

Human rights and national security exist, at one level, as interests upon which many legal systems place a high value. Much has been written about which interest trumps the other in England and Wales and as to the shifts in the balance between these interests since the (UK) Human Rights Act 1998. But despite assertions that the HRA tilted the balance in favour of the individual’s interests in her human rights and away from the societal interest in national security, in truth no such uniform approach on the part of the judiciary is evident. 

The Renewal of Control Orders before the UK Parliament

At the end of February the UK Parliament’s Joint Committee on Human Rights reconsidered the use of Control Orders under the Prevention of Terrorism Act 2005, which the Home Secretary (Alan Johnson, pictured left) has asked Parliament to renew for another year from 11 March (the fifth such renewal). Control Orders impose “tailored” restrictions upon individuals on whom they are imposed, which typically involve relocation of the individual, restricted contact with friends and family and a denial of access to the internet and other unmonitored forms of communication.

The Home Secretary informed Parliament in formulaic language based upon the wording of the PTA 2005, that, ‘the powers are needed to ensure that a control order can continue to be made against any individual where the Secretary of State has reasonable grounds for suspecting that individual is or has been involved in terrorism-related activity’. The chief argument marshalled in favour of the orders was that, ‘it is necessary to impose obligations on that individual for purposes connected with protecting members of the public from a risk of terrorism’.

‘Terrorism’ Returns?

Over recent weeks we have witnessed something of a resurgence of violence in Northern Ireland that appears to be attributable to the so-called ‘Real IRA’ and ‘Continuity IRA’, which the Irish Times tells us seem to be joining resources. The Minister for Justice, Dermot Ahern (left), has now stated that there is a serious threat from this violence not only in Northern Ireland but in the Republic of Ireland as well. What I found particularly interesting in this Irish Times report is the use of the word “terrorist” in relation to recent violence. This is the first time I have seen that word used in relation to these attacks in the mainstream media—previously they were mostly described as ‘dissident’ attacks and ‘dissident’ groups, perhaps as a result of the Good Friday/Belfast Agreement and the rather resolute feeling that terrorism has no more role to play in this country. In this article reference is made to “dissident groups” and “terrorist incidents” and the headline refers to a “terror threat”.

If past experience is anything to go by, this is not an incidental matter. History teaches us that the use of the label “terrorist” says something very important about how the politico-legal landscape is preparing to react to perceived or actual threats. That reaction is usually to enlarge the powers of the state and reduce some elements of what we see as the standard rights-protections inhering in the criminal justice system. Whether this change in language will continue past this article and penetrate the politico-legal debate remains to be seen but it is certainly an interesting development.

Guest Contribution: Murphy on Terrorism Sanctions in the EU

We are very pleased to welcome this guest contribution from Dr Cian Murphy (right) of City University, London. You can find out more about Cian on our guest contribitors page.

The Rule of Law Inches Forward: UN Sanctions in EU Law

Chafiq Ayadi is one of only two individuals resident in Ireland whose assets are frozen under the UN sanctions regime established by UN Security Council resolution 1267. Two years ago I published a short note in the 2007 Dublin University Law Journal (‘Ayadi v Council: Competence and Justice in the “War on Terrorism”’ [2007] Dublin University Law Journal 426) critically commenting upon the decision of the EU General Tribunal (then the Court of First Instance) in his legal challenge to the freezing of his assets (Ayadi v Council). I concluded, somewhat pessimistically, by noting that

For the European resident targeted by the sanctions, access to justice is guarded by Kafka’s doorkeepers. For his subsistence, the individual must petition his government. For his delisting, he must petition the Sanctions Committee. For protection of his rights, he must wait, for the doorkeepers are many and the door, though apparently open, cannot be passed through.

A Mixed Week on Accountability for Renditions

This week saw two contrasting results emerging from courts in the United States and Italy regarding extraordinary rendition. In the United States, the case of Maher Arar (right) was once more rejected by the US Court of Appeals for the Second Circuit. In Italy, however, 23 CIA agents were convicted in absentia in relation to their involvement in the ‘snatching’ of Egyptian Osama Moustafa Hassan Nasr from the streets of Milan in 2003. The contrast in the courts’ approaches in these cases could hardly be more pronounced.

In Arar (opinion available here), the Court refused to allow Canadian national Maher Arar to sue the United States for sending him to Syria where he was tortured because Congress had never expressly authorised such suits. Arar therefore failed to create what is known as a Bivens action, i.e. an action for breach of constitutional rights, in relation to extraordinary rendition. This was because, the Court held, the creation of a Bivens action in this respect would have implications of foreign policy and security activity. Congress could, of course, create such an action by statute but the Court would not do so itself. There is little doubt that this will be appealed.

In Italy, in contrast, Judge Oscar Magi of the Fourth Chamber of the Court of Milan appeared to have little hesitation in convicting the 23 Americans for their involvement in rendition although there were a number of others who were not convicted as a result of diplomatic immunity and the withholding of evidence on national security grounds. This case is sure to be appealed, and no sentences are executed in Italy until all appeals are completed, but in any case the agents are not in custody. The US State Department has expressed its disappointment at the verdict.

Private Companies and Extraordinary Rendition

I had the great pleasure last Friday to present a paper as part of the Scrymgeour Seminar Series in Dundee Law School. My lecture, entitled “Privatised Torture: Reflections on the Implications for Human Rights Law of the Emergent Phenomenon of Out-Sourced Torture”, has now been posted as part of the UCD Working Paper Series on Law, Criminology and Socio-Legal Studies on SSRN and is available for download here.

Fazaeli on Women Martyrs in Iran

Roja Fazaeli of TCD recently presented a paper entitled “Humiliated Men and Martyred Women: the War on Terror’s Implication on Redefining Middle-Eastern Masculinities” at the Feminism and Legal Theory Project in Emory Law School, Atlanta. Although there is no paper available online, Emory has fully embraced YouTube and you can view Roja’s presentation, as well as those of other participants in the conference entitled “Masculinities and the Law” online.

Terrorist Propaganda or Political Speech?

In Ireland we are quite accustomed to our freedom of expression being significantly limited where that freedom is abused. This results from the express limitations in both Bunreacht na hÉireann (the Irish Constitution) and Article 10 of the European Convention on Human Rights. International law also prohibits propaganda to war as our colleague Michael Kearney has explained and examined in detail in his book The Prohibition of Propaganda for War in International Law (2007, OUP). In the United States, however, the constitutional protection of free speech (First Amendment), while not absolute, is certainly broader than is the case in Ireland or indeed under the ECHR. This makes the appeal argument by counsel for Al Hamza Ahmad Suliman al Bahlul—the only person currently in Guantánamo Bay to have been convicted of an offence relating to the ‘War on Terrorism’—all the more interesting. Details of the appeal after the jump.

UK backs IRA victims’ Libya claims

In the aftermath of the Megrahi contretemps in the UK which at present shows little sign of abating, UK Prime Minister Gordon Brown has been forced to row back from his earlier refusnik position by offering “dedicated Foreign Office support” to the families of victims of IRA bombings whose campaign for compensation from Libya has been given an unexpected fillip by the controversy. The IRA’s relationship with President Gaddaffi first became apparent in March 1973 when the Irish navy boarded The Claudia off the Waterford coast and found five tonnes of weaponry supplied by the Libyan government. Semtex supplied by Libya became the IRA’s useful weapon is attacks such as the Enniskillen bomb in 1987 which killed 11, the Ballygawley bus bombing in 1988 which killed eight soldiers, the mortar attack at Downing Street in 1991 when the IRA tried to wipe out John Major’s Cabinet, the Warrington bombing and about 250 other booby-trap bombings.