Friday, December 23, 2005 

Bravo to the IHRC

The Irish Human Rights Commission steps into the breach, via RTE News:
The Irish Human Rights Commission has called on the Government to carry out inspections of certain US aircraft landing at Shannon. The commission expressed concern at reports that US aircraft were being used to transport prisoners to secret locations where they were at risk of torture or ill-treatment. It noted that some of the aircraft involved had been recorded as stopping at Shannon.
The commission said Ireland has an obligation under international and domestic law to prevent any actions which would facilitate torture, even in another country. It said the Government's reliance on international assurances that such actions were not taking place was insufficient. The commission called on the Government as a matter of urgency to seek US agreement for the inspection of the US aircraft in question on landing at Shannon or any other Irish airports.

 

Concerns about 'Gay Partnership'

Since the partnership ceremonies started in Northern Ireland on Monday and gradually spread across the UK there has been a lot of talk about gay partnerships, gay marriage etc… and their implications for the queer community.

In Thursday’s Guardian Lotte Jeffs wrote about the pressures of being in a long-term same-sex relationship and choosing not to register your partnership. Here’s the money quote:

Since news of civil partnerships hit the mainstream media and photos of men in pink top hats cutting into rainbow wedding cakes became ubiquitous, my happily coupled gay friends and I have been subjected to a barrage of harassment. And not from hooded youths at bus stops for a change, but from our very own nearest and dearest.

"So ... when are you tying the knot then?" It might be well meaning, but if my boss, my best mate or my grandmother asks me one more time if they should buy a new hat, I might just book myself on the first flight to Texas - at least people there would be more worried about us burning in hell than what we'd wear down the aisle.


I think these are legitimate concerns. Up until relatively recently straight women who were not married were shunned as social pariahs and, indeed, I presume that many couples who choose not to marry continue to be barraged by ‘when are we buying the hats’ questions. This may seem trivial but in fact it reflects the fact that, when a scheme is introduced to register a partnership, be that through marriage or some other means, there arises a social expectation that this will be done. One might even say that there arises some kind of presumption that couples who choose not to enter into such a partnership are not ‘committed’ or ‘serious about one another’. We should be careful not to allow this to happen. The introduction of a partnership regime simply introduces a choice, not an obligation and people should respect that notion of choice and not reduce it to some kind of expectation. On the other hand, however, such fears and concerns and critiques (whether they be nicely written opinion pieces like this or more academic heteronormativity-based-critiques) should not be taken as an indication that the queer community does not want regimes for partnership recognition and/or marriage. They are, instead, an indication of the diversity of desires and needs within our community, just as there is a diversity of desires and needs within the straight/opposite-sex-couple community.

The second kind of concern comes from Maman Poulet in her latest blog entry. Instead of the ‘expectation’ point raised by Jetts, Suzy concentrates on the level of interdependence in a partnership and the detriments of that to individuals within the legally-recognised relationship. Another money quote:

In the 9 years I have been together with my partner I have not been financially dependent on her or her me. We of course share money, pay for different things and for things together but generally maintain our financial independence, there is no joint bank account. I don't know if I would mind if I was to lose income if when we were in a registered partnership (and I am being very very presumptive there). But I do hate the automatic assumptions that are made that I should be dependent on her because she earns so much more than I do - or that if I was not working that I would give her my tax credits, or that I would lose medical and other benefits because she earns too much.
I understand this critique and I find it more difficult to deal with. On the one hand I can recognise the desire to remain independent and to be recognised as independent partners, but when people are in a relationship there is a certain (necessary?) level of interdependence. Entering into a partnership in law is designed to recognise that level of interdependence and protect it by law, as well as ensuring that this relationship and interdependence is not jeopardized by State independence. I suppose the only answer, if it is an answer, is that if you want the rights and privileges that come with a registered partnership and are designed to respect your interdependence and love then you have to accept the detriments/obligations of that as well. Each couple then, essentially, has to do a personal cost-benefit analysis of what they want. There’s plenty that can be done without entering into a civil partnership, like making a will (essential), creating joint ownerships over property (although absent a registered partnership stamp duty would have to be paid), nominating your partner as testamentary guardian over any children. There should be facilities to name your next-of-kin for medical reasons and perhaps carry it on a card in your wallet as people carry donor cards, although that is a complex thing to do given the powers and responsibilities that next-of-kin may have in cases of life-support etc…

It’s such a difficult situation, really, but in the end of the day, well, the law is not good at recognizing the complexities of personal relationships and emotions. It is a primitive tool that can merely put in place some kind of structure within which people can operate. Once that structure is there people then choose whether or not to enter into it (another reason why everyone should have a choice of partnership types). It will never be perfect, just like marriage isn’t perfect for many opposite-sex couples, but it will be better. Maybe we have to settle for that?

Thursday, December 22, 2005 

Using the ECHR to challenge counter-terror moves

Now this is going to be interesting. It transpires that the International Federation for Human Rights and the League of Human Rights have lodged an action in a French court relating to alleged stopovers by CIA flights in La Bourget airport. It’s been confirmed that two flights stopped over there and these organizations are looking for further information about the nature of these stop overs. The result of this action might be very significant indeed, particularly if the court is satisfied that the flights were used in the course of renditions. We may then see some judgment about the application of the European Convention on Human Rights to such flights. This is a tricky question. In terms of the jurisdiction of the Convention it applies to all those in the territory of a signatory state, but if the detainees never get off the plane and therefore remain within the international zone are they in the country’s territory and therefore protected by the Convention? The BBC report is here

On another jurisdictional note we now know that detention in British custody can attract the ECHR even if that detention happens outside of the physical territory of the country. This is significant, but might this kind of thinking be extended in some way to include aviation authorities and the international zone??

 

Padilla in the 4th Circuit

One of the most important habeas corpus cases to arise in American during the course of the War on Terror is Padilla. He was arrested in O’Hare airport (Chicago) coming off of a flight from Pakistan in 2002 and was subsequently detained for three years without trial. Originally he was claimed to be planning a ‘dirty bomb’ against America, but the trouble really started when, in front of a grand jury, a different charge was leveled against him to that which was used to justify his extremely protracted detention.

An important judgment yesterday, however, rapped the administration’s knuckles in relation to this case and refuses leave to transfer Padilla to face new terror charges. Here’s the important extract from the Washington Post story:

A federal appeals court yesterday refused to authorize the transfer of "enemy combatant" Jose Padilla to face new criminal charges, issuing a strongly worded opinion rebuking the Bush administration and its handling of the high-profile terrorism case.

The same court that had granted the administration wide latitude in holding Padilla without charges or a court appearance now is suggesting that the detention was a mistake. As a result, the U.S. Court of Appeals for the 4th Circuit said prosecutors could not take custody of Padilla from the military and take him to Miami, where he now faces indictment on terrorism charges.

In issuing its denial, the court cited the government's changing rationale for Padilla's detention, questioning why it used one set of arguments before federal judges deciding whether it was legal for the military to hold Padilla and another set before the Miami grand jury.

….

Legal experts said the decision showed that a previously friendly appellate court was now casting a more skeptical eye toward the Bush administration's terrorism arguments. The Richmond-based 4th Circuit has been the administration's venue of choice for several high-profile terrorism cases. It is widely considered the nation's most conservative appellate court, and the same three-judge panel that issued yesterday's ruling had earlier strongly backed the president's authority to detain Padilla without trial. Both decisions were written by Judge J. Michael Luttig, who was a leading contender to be nominated to the Supreme Court earlier this year.

This is a very important decision not only in relation to Jose Padilla, but also in relation to a connected case: Hamdi. Bravo to the 8th circuit.

For a profile of Padilla see the BBC News site
For links on the court documents available to date see this excellent resource

 

FISA Judges Concerned

Yesterday I mentioned that a FISA judge had resigned, allegedly as a result of Bush's secret spying missions. Now it appears that the FISA judges are collectively concerned about this and are meeting today to discuss why or how the President felt that his actions could be defined as legal. The Washington Post reports:
The presiding judge of a secret court that oversees government surveillance in espionage and terrorism cases is arranging a classified briefing for her fellow judges to address their concerns about the legality of President Bush's domestic spying program, according to several intelligence and government sources.
Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed secretly listening in on telephone calls and reading e-mails of U.S. citizens without court authorization was legal. Some of the judges said they are particularly concerned that information gleaned from the president's eavesdropping program may have been improperly used to gain authorized wiretaps from their court.
"The questions are obvious," said U.S. District Judge Dee Benson of Utah. "What have you been doing, and how might it affect the reliability and credibility of the information we're getting in our court?"

 

Today's Disillusioned Lefty interview

I'm today's featured interview on Disillusioned Lefty so, if you're interested, pop over to Kevin and Mick and have a read. The interview is here

Wednesday, December 21, 2005 

The Gilligan Decision

The Supreme Court this morning ruled that the Special Criminal Court could not order the seizure of 17 million euro worth of assets by the CAB from John Gilligan. It was an interesting judgment, particularly in as much as Mrs. Justice Denham noted that the SCC, as a particular type of court that already restricts som rights of the accused, should not have additional jurisdiction inferred to it. This is interesting because the continued existence of the Special Criminal Court (estabished as an emergency/extraordinary court in the 1970s on a 'temporary' basis) has been particularly criticised by the United Nations in the past. This judgment shows that, although the Supreme Court may uphold the existence of the SCC and the broad powers of the DPP in relation to same (see Kavanagh v. Governor of Mountjoy Prison), they are not prepared to allow it to leak even further into non-emergency situations. Here's the pertinent part of the judgment (paragraph 9):
I am satisfied that the learned judge was correct in law and did not err and I would affirm the decision of the High Court. The Special Criminal Court is a unique court established under the Constitution and legislation (especially the Offences Against the State Act, 1939) which procedure limits some rights of an accused, especially his right to trial by jury. Consequently, legislation should be strictly construed insofar as it extends the jurisdiction of the Special Criminal Court. The Constitution provides that the constitution, powers, jurisdiction and procedure of the Special Criminal Court shall be prescribed by law. In significant matters this is addressed expressly in legislation, e.g. Part IV of the Offences Against the State Act, 1939. This does not mean that every pleading and procedural matter has to be expressly stated to apply to the Special Criminal Court. But a significant jurisdiction, such as bail, should be and has been expressly provided for by legislation. Similarly, a significant ancillary jurisdiction, such as is created in s.4 of the Criminal Justice Act, 1994, as amended, should be expressly stated to apply to the Special Criminal Court, if it is so intended. Given the nature of that Court, a court of trial, matters other than a trial may not be inferred into its jurisdiction. Consequently, I am satisfied that the Special Criminal Court does not have jurisdiction to make orders pursuant to s. 4 of the Criminal Justice Act, 1994, as amended.

The Government has, perhaps predictably, responded by saying they may extend jurisdiction by law in the future. This is a pity because the appropriate response should be to rethink the SCC and different ways of minimising situations in which due process is circumvented.

Huzzah to the Supreme Court. Boo hiss to the government.

RTE News report is here
The judgment is here

 

UN Reform: Peacebuilding and Whistleblowers

Kofi Annan today announced that he had signed an new policy to protect whistleblowers in UN which states that anyone who reports misconduct within the UN in good faith should be immune from retaliation. The 'good faith' requirement should silence any fear of politically motivated or frivolous reports and this agreement should be welcomed in terms of increasing accountability within the UN (one of the main prongs of Annan's reform proposals from this summer/autumn).

As part of his campaign to revamp the United Nations and root out misdeeds and mismanagement, Secretary-General Kofi Annan has signed a new whistleblower protection policy, to take effect on 1 January, aimed at ensuring that the world body functions in an open, transparent and fair manner.

“Retaliation against individuals who have reported misconduct or who have cooperated with audits or investigations violates the fundamental obligation of all staff members to uphold the highest standards of efficiency, competence and integrity and to discharge their functions and regulate their conduct with the best interests of the Organization in view,” the new policy states.

This reform follows quickly from yesterday's announcement of a new Peacebuilding Commission in the UN, which Duncan Hollis comments on here.

 

Standing up to the President

It's nice to see some American judges standing up against Executive excesses in the 'war on terror'.
A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush's secret authorization of a domestic spying program, according to two sources.
U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.
Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.

Full story in the Washington Post here

Tuesday, December 20, 2005 

Gay Partnership Proposals Today?

Building on my earlier post on the Constitutional point, the Irish Examiner today carries this story:

JUSTICE Minister Michael McDowell is expected to announce later today that he will be taking the first steps in giving official recognition to gay and cohabiting couples who are in long-term relationships. This move is likely to give the unmarried couples income tax, inheritance tax, gift tax and property rights, next-of-kin designation, social welfare and travel rights but stops short of allowing them marry, as that could be unconstitutional....Mr McDowell, who is due to meet with the Gay, Lesbian Equality Network (GLEN) later today, has previously said that legal recognition should be given to same sex unions or civil partnerships but that this recognition "should not put such unions on the same legal basis as marriage".

Department of Justice sources last night said that the minister is likely to set out his plans today. Legislation is being written up by officials but it is likely a consultation procedure will take place before a new civil recognition would become law. The minister has said he would like to see proposals enacted during the life-span of this Government. Department sources warned, however, that extending tax breaks to non-married couples is likely to have "a huge effect" on the amount of tax coming into the Department of Finance. All couples could find that the current tax system could be re-examined.

Since 2001, the Equality Authority has called for a range of possible solutions to the "current inequality" including a legal register of long-term partnerships while GLEN is holding out for full gay marriage. Strong opposition to Mr McDowell's move is expected, not least from the Catholic Church, who described the Law Reform Commission's recommendations on this area last year as undermining the constitutional status of marriage. Latest figures show that the number of cohabiting couples in Ireland has risen by over 40% in the past decade to 77,600. The number of gay cohabiting couples rose by 125% to 1,300. Equality Authority CEO Niall Crowley said yesterday same sex couples regularly face practical discrimination, such as when a partner dies, as they aren't recognised legally as next-of-kin. Same sex couples don't have joint tax assessment and there is no legal recognition of their partnership when it comes to rearing a child. Such legal recognition is crucial to create a cultural climate where discrimination can be stamped out," he said.

Three points in response:
(a) Why not marriage? Is the Constitutional point all that you're going to use to justify this discrimination or?? If you're concerned about the Constitution you should pass the bill, let the President refer it to the Supreme Court and let the Court decide whether or not to extend the definition of marriage. Its definition is as a result of judicial interpretation - let's give them the chance to change that interpretation. Different but equal is an impossibility. Either this Government believes in equality or it doesn't.

(b) Is there to be any mention of children in the legislation at all? I very much doubt it, which is a huge ommission and perpetuates the inequality of treatment between children born within marriage and children born outside of marriage or being parented by someone who is not their biological parent. Proposals that completely ignore such basic issues of family life for same-sex couples basically reduce us to a bank account

(c) The tax point is a red herring. Not only would the amount of tax going in reduce but the amount of social welfare being paid out would probably also reduce if we equalised both tax and social welfare settings. Remember also that queers have been paying for straight people's married tax exemptions etc... for years. The main point about tax though is that in the end of the day equality is a paramount requirement of modern, secular, democratic society and what it costs in terms of brass cent should be of no relevance whatsoever.

 

Shameful Admission

I quite like Shayne’s first single, although I would have liked it better had Brenda been singing it. Ho hum.

 

On that Constitutional point

There’s been a lot of discussion on Irish blogs about the civil partnership of Grainne Close and Shannon Sickels in Belfast yesterday with most commenters being very supportive of the couple and the move. In almost all cases, however, there have been references to whether anything analogous would be introduced here in (southern) Ireland. We know that the Taoiseach and the Minister for Justice are in favour of the introduction of something to protect queer couples in Ireland but there are constant references to the fact that anything analogous to marriage would require constitutional amendment. It ain’t necessarily so.

It is open to the Supreme Court to reinterpret marriage as between any two adults as opposed to being between a man and a woman. The Constitution merely lays down he importance of marriage from which a right to marry was extrapolated (Ryan v Attorney General) which was then defined as being between a man and a woman. Therefore it’s a case of judicial interpretation laid down at a time when the prospect of same-sex marriages was slight and the campaigns were for decriminalization as a first step in equal recognition and equal rights. If the Supreme Court chose to do so it could revise its definition of marriage to take into account contemporary social morality and force the repeal of s. 2(2)(e) Civil Registration Act 2004 which provides that marriage is between a man and a woman only:
(2) For the purposes of this Act there is an impediment to a marriage if....
....
(e) both parties are of the same sex.

Just a quick note to clarify that a constitutional referendum isn’t strictly necessary, although the likelihood of the Supreme Court following Canadian and South African examples is, probably, relatively low.

Blogs talking about this: Slugger O’Toole, Maman Poulet, United Irelander, Babblogue Blog, The Levee Breaks, BlankPaige , Voiced Thoughts, Letter to America, Wulfbeorn Watching, Rinceoir

Monday, December 19, 2005 

Oh dear

It seems I've been 'tagged', which makes me feel a little like a juvenile delinquent but nevertheless here are the rules of the meme:

Rules of the game:The first player of this game starts with the topic five weird habits of yourself, and people who get tagged need to write an entry about their five weird habits as well as state this rule clearly. In the end, you need to choose the next five people to be tagged and link to their web journals. Dont forget to leave a comment in their blog or journal that says You are tagged (assuming they take comments) and tell them to read yours.

1. Everytime I buy someone a present I have a compulsion to tell them what it is there and then. It means that generally I can't buy presents until the very last minute as I just can't keep the secret.

2. I can't stand not having a selection of shower gels in the morning to wash myself with. I use different ones for different days and different functions. If I'm going to have just a normal day it's some variety of Palmolive. If I'm teaching it's Inis showergel. If I'm going out then it's Eternity Purple Orchid. It's kind of weird.

3. I always feel slightly sick before I go in to give a lecture. I generally spend the half hour immediately preceding the lecture on the loo or sitting down somewhere feeling slightly sick. It's stage fright I suppose but I hope I grow out of it.

4. I have to go down to the hall the minute I hear the postman deliver the letters. I can't stand the idea that there could be something interesting sitting downstairs in the hall while I'm sitting upstairs working. There almost never is and i always feel slightly heartbroken when I check the mail in the end.

5. I subscribe to a lot of journals but almost never read any of them apart from glancing through the abstracts and making a mental note of something I might need in the future. I like to see them on my bookshelves though as I have a slight obsession with books. I love to have lots of them around me. For some reason they make me feel safe

Ok, so not very interesting disclosures there but it's the best I can do! I'm tagging Free Stater, Cadavre Exquis, Washington Rox, United Irelander (ha!!) and Disillusioned Lefty

 

Get me to the Registry Office on time!!

On an historic day for the island of Ireland congratulations to couples being civilly partnered up in Belfast today on the first day of implementation of the Civil Partnerships Act. It’s not perfect but it is heartwarming, and it’s interesting to see all the television channels and radio channels refer to it as marriage/gay marriage continuously. It’s not marriage though, let’s not forget that and let’s not forget that there is no such thing as ‘separate but equal’. Nevertheless congratulations to both those being partnered and those who worked so hard on having the Act introduced. Here’s hoping it’s the start of a new era for the island of Ireland.

 

Finding our Religion? Human Rights' Religious Roots

In an attempt to clarify some of my thinking in my Peshawar paper...

In the last few weeks I’ve been thinking a lot about the importance of backtracking and recognizing the religious roots of many of our main international concepts and doctrines. John Rawls said that, in order to have any reasonably prospect of being publicly accepted, religious reasons must be secularized and this is what has happened with concepts such as human rights, for example. Certainly in the 19th century and early 20th century when many were dismissing religion as “opium for the people” (Marx) or “an illusion” (Freud) this process of secularization was important: generally speaking people would have rejected religious notions out of hand, particularly with the continuing rise of secular positivism. But it is true that human rights, for example, are an inherently religious concept founded on the principles of the equality of all before God. Yes, it is a Judeo-Christian concept that motivated the development of human rights but the basic precept of equality and God’s love is common to practically all of the world’s major religions.

Isn’t it time that we recognised the universal applicability of human rights but also recognised the fact that it stems from a religious basis that is shared in all religions (not just Christianity)? As societies become increasingly religious, and particularly as Evangelicism continues to rise in the United States and the world becomes ever more divided along ideological lines, recognizing the religiosity of concepts such as human rights can only be positive. Firstly it may well give rise to a greater degree of public unrest in the United States with the level of human rights abuses being perpetrated by its administration. Secondly it may well constitute the marking out of a common ideological base and core values for all peoples thereby creating space for the resolution of ideological polarization. There is also a compliance-related argument here but it’s still in formulation!!

So yes, perhaps it is time for human rights to be ‘born again’...

Hat tip to Opinio Juris for a post of this article in the Chronicle of Higher Education that got my thinking started on this, although I can’t find the post now

Thursday, December 15, 2005 

Irish Blogs Aghh

And again with Mental Meanderings not showing up on the http://www.irishblogs.ie/ blog roll thingbobyokey….for days now. Ugh – grumpy old thing that it is. Well that’s it. It’s getting no Christmas present from me!!

Update

It seems from the comments that a few of us were off the thingbob (that's the technical term for it you know) but we all seem to be rolling again. Hurrah!

 

Justice Flood and Indo Tabloidism

Today’s Irish Independent carries what can only be described as a ridiculous story about Mr. Justice Flood today as part of the Connolly/McDowell affair. The story emanates from Flood J’s statement, as Chairperson of the Centre for Public Inquiry, that he stood “four square behind him until this extent, that I will stand four square behind all the citizens, absolutely all citizens…However great scoundrels they may be, until they have been processed through, through the process of law, in a proper court and not a drum-head court martial." The Indo also slates the former High Court judge for his failure to look into Connolly’s background before hiring him.

Honestly. A former High Court judge speaks out against trial by media and subverting the criminal justice system choosing instead to laud the Constitutional right to a presumption of innocence and his “reputation as a judge of character” is “on the line”? What, I wonder, do the Indo think he might have found had he done a background check on Connolly given the fact that no charges have been brought in relation to his alleged activities? No matter how much people may want it to be the case, mere suspicion does not go down on one’s criminal record for all and sundry to see. That record is tarnished only when the prosecution convinces a court beyond a reasonable doubt that someone has actually committed a crime.

The hypocrisy is also amusing/aggravating: an NGO is supposed to do complete background checks on someone, including suspicions of criminality, and appoint their director through open competition (according to the piece) but the Government can hire someone, without competition, who has a degree from a diploma mill (C.f. the McSweeney affair).

In relation to reports that Flood J is planning to visit Chuck Feeny and ask him to reinstate the funding for the Centre the article finishes in what is quickly becoming the Indo’s typical-tabloid-style:
Private investigators have confirmed the details of Michael McDowell's allegations about Connelly (sic!) to Mr Feeney so Mr Justice Flood might save himself the bother of a flight to the US. And spend the time reconsidering his character judgment of Frank Connolly.

Oh well…if the Minister and private investigators have confirmed the stories then we needn’t bother with due process, presumption of innocence, burden of proof, criminal justice system etc…etc…

 

Forgiving Ford

We wrote here about boycotting Ford following their decision to pull advertising from gay publications. Thanks to a very quickly mobilized reaction in the queer community in the States, Ford has reversed its decision. AMERICAblog carries the full text of Ford’s letter here.

We can lift the boycott now!!

Tuesday, December 13, 2005 

Gorbys, 500 miles and Memories

The Proclaimers I’m Gonna Be (you know…I would walk 500 miles etc…) just came on the radio. For the Philosoph Old Hacks – how many awful Gorby’s memories does that song bring back?

Ah…memories….

 

Aid Uganda



Christmas is a time for giving and if you’re looking for something worthwhile to donate to this Holiday season please think about lodging some money for the benefit of a private appeal being run by a friend in Uganda. Killian Kehoe has been in Uganda for the past number of weeks and remain there for some time more before coming back to enroll in Blackhall Place and start professional life. He’s doing some really amazing work, especially in planting and growing natural anti-viral drugs for HIV and in raising money for a farm school and clinic. I’ve included a picture and an extract from an email below, which, despite what the Baby Barrister describes as his “BBC-reporter image, the red face and the awful hat” sported by Killian should give you an idea of the kind of work Killian is doing.

His mother has set up a bank account in which you can lodge donations. Every Euro counts and Killian promises the ability to trace every cent from donation to spend. Here are the details

Deposit Account Holder: Siobhan Kehoe
Bank: Bank of Ireland Dun Laoghaire, Co. Dublin
Name of Account: Aid Uganda
Sort Code: 90.11.16
Account Number 20 22 32 95

Please give what you can.
Uganda's greatest vice is the corruption, hence its poor economic health and all the related maladies and side-effects. It's a state that's wheezing its way along, making some progress but not half as much as it should. I'm trying to find a corruption free space in which to launch some small projects with a view to expanding to more consuming building projects, as I find the right ideas and people. I was hassling friends for money (consider yourself lucky to have been overlooked on that front), and I've been trying to raise money for a farm school and clinic that are at various stages of development.

The key here has been finding the best projects, namely those with the best returns. For example my first one here has been starting a nursery for growing a little known medicinal plant named artemisia. It has anti-malarial qualities and is more effective than the regular HIV anti-retroviral drugs. We have about 300 plants growing in the nursery and I'll be involved with running a training programme for local farmers to grow it themselves. They'll get a plant each and they should be able to grow it themselves. We'll also have a nursery here in Kamuzinda for local consumption.

 

Comment Moderation and General Useless Blog Management

It appears, from this post, that I managed to turn on something called 'comment moderation' and not set up emails to me so there were seven comments waiting for moderation that I was unaware of. They've all been published now (without moderation) and the moderation thingbob has been turned off

Yes, I am one of the bloggeresses who just presses buttons to see what happens. I didn't even know I'd managed to do that. Apologies all.

 

Wiki-mation

I recently wrote about the dangers of Wikipedia in terms of reliability and using it as a research tool without verifying sources. There’s also been recent difficulty with defaming people through Wikipedia entries. It looks like some people aren’t going to stand for false information about them being placed on Wikipedia anymore however. A new class action suit is being launched….via the web. Check out the (cleverly designed) www.wikipediaclassaction.org/

 

McDowell, Connolly and the Subversion of Justice

I’m amazed at Michael McDowell – it’s like GUBU and phone tapping all over again (except we don’t seem to care quite as much this time as we then did) as the Minister for Justice, Equality and Law Reform releases Garda documents about Frank Connolly to the Irish Independent; the same documents he brought to Atlantic Philanthropy to convince them to pull their funding for the Centre for Public Inquiry. This is a pretty messed up situation: McDowell claims that Connolly (whose brother is one of the Colombia Three) traveled to Colombia on a false passport. Connolly says he has never been in Colombia and will explain his actions at the time when and if the DPP ever forwards a case against him (see Gavin’s blog for parts of an interview transcript).

I suppose there are a couple of issues to be addressed here. First of all Frank Connolly has some questions to answer, which may well detract from his ability to correctly and objectively carry out his job of exposing corruption and illegality in the Irish government. If it were it true (and I’m not saying it is) that he had some active IRA links or had traveled on an illegal passport it would be pretty hypocritical of him to be the champion of legitimacy and fairness in an organisation like the CPI. The real issue, however, is that he shouldn’t have to answer those questions to the Minister for Justice. Our Constitution clearly outlines a separation of powers doctrine where the executive make policy and the judiciary make decisions on legal process, guilt, innocence, punishment etc… If Connolly is to answer questions they should be answered to the Gardai and before a court of law; not to the Irish Independent.

The second issue is the whole notion of a Minister releasing Garda documentation to a newspaper. McDowell says he’s entitled to do so as the Official Secrets Act gives the Minister the power to make documentation available to the media in the public interest. I presume in this he is referring to s. 4(1), Official Secrets Act 1963:

A person shall not communicate any official information to any other person unless he is duly authorised to do so or does so in the course of and in accordance with his duties as the holder of a public office or when it is his duty in the interest of the State to communicate it.

So does McDowell feel it is in the interest of the State? I suppose it depends on how you define State; if you define it as ‘the people’ then there might be some reasonable argument in favour of releasing the information were it not for the fact that we have a Garda force and a criminal justice system to deal with such issues. If you define ‘the State’ as the machinations of state and, in particular, the Cabinet then it’s probably in their interest to discredit the organisation via discrediting its top employee, yes.

The main problem with McDowell’s action, however, is that through releasing this information to the media he has both subverted the criminal justice system (which he is fixed with running) and compromised any future action against Connolly. McDowell has referred a number of times to him not having a responsibility to show whether or not the information available to him would satisfy the criminal burden of proof (i.e. beyond a reasonable doubt) indicating that, in likelihood, there isn’t sufficient information to take a criminal action against Connolly as it is and he would rather smear him in the media than go through judicial channels and have the case thrown out. Should information come to light, however, that would allow a prosecution there will be obvious difficulties empanelling a jury that is unaware of Connolly or able to make an objective decision. I’m sure the Minister is ready for just such an eventuality however….isn’t that what the Special Criminal Court, the emergency temporary court in existence on a continuous basis since 1976, is for??

‘Trial without jury for someone who couldn’t get a fair trial because I smeared him? Perfect…’

Where’s Me Country has a great post on this here

Monday, December 12, 2005 

More Bloggeresses

The feminism debate appears to rage on, but now it’s taking a somewhat different light. While commenting on the debate which I’ve written about here and here, Winds and Breezes (who has recently had a rethink on her original comments) stated:
I may not be Germaine Greer, and I'm not a fat-man-bashing-lesbian (although I've known one or two). But I do believe I have choices and rights which cannot be denied to me Just Because I'm a Woman.

Maman Poulet caught this comment fairly quickly and rightly identified it as a case of straight women wanting to assert their straightness anytime the issue of feminism comes up. This isn't, of course, limited to Winds and Breezes - it's a common phenomenon (and this post is not a dig and W&B either....). I’m constantly amazed by this, or at least by a few aspects of it. The first is the connection that appears to be made between feminism and lesbianism as if every feminist were a lesbian and every lesbian were a feminist (neither position is true, of course). Secondly there is the unspoken presumption that there’s something wrong with being a lesbian in the immediate rush to rebut any presumption of lesbianism that might perhaps arise just because someone indicates a preference for feminism or equality in some way. Some of us are mistaken for straight women every day of the week for goodness’ sake!

Maman Poulet makes the excellent point that
While the lesbians marched against rape, in favour of divorce, rights to choose etc., began the rape crisis centres, refuges and other services for women in the 70's, they did so in solidarity with their heterosexual sisters. Heterosexual feminsts de-dyked the women's rights movments fairly swiftly. Now the imagery of modern feminism is interpreted by some as anything but lesbian instead of anything and everything including lesbians
Straight women have many of the rights they now have because of the efforts of dykes. Perhaps it’s time to remember that, and to get out there and start fighting for queer rights as well (bloggers might think about starting here).

P.S. Some have claimed my use of the term bloggeress introduces and unnecessary gendered dimension to the issue and that blogger is gender neutral, however (a) there's nothing wrong with highlighting the gender/sex of a writer in fact it can add greatly to the writing because there might be a better appreciation of perspective, and (b) nouns ending in 'er' or 'or' tend to intimate masculinity or traditionally masculine occupations so there may well be some undercutting gender dimension to the term. Anyway, I like bloggeress.

P.P.S. I like the way the interaction on Suzy's blog led Winds and Breezes to rethink a bit. That's been a really positive part of this debate: we've all been thinking a lot about women and blogging and feminism etc...

Thursday, December 08, 2005 

The Torture Judgment

Kudos to the House of Lords. The full judgment in this case is available on the home page of the House of Lords. The case, by the way, is A (FC) & Ors v. Secretary of State for the Home Department [2005] UKHL 71. All judgments are worth a read but I’m going to focus on that of the Lord Chief Justice, Lord Bingham, who handed down the main opinion for the case.

He started by outlining the common law prohibition of torture in England, which he describes in para. 11 as “the subject of proud claims by English jurists” and explicable by reference to the “inherent unreliability of confessions or evidence so procured” (para. 11). I’m particularly interested in his very strong reliance on international law (not surprisingly really, especially since Philipe Sands was one of the barristers for the appellants) and the range of sources he refers to from the UN Convention Against Torture to reports of the Special Rapporteur on Torture, Peter Koojimans, to Burgers & Danelius on UN Convention Against Torture. He very clearly stated that the prohibition of torture was jus cogens (paragraph 33) and an offence erga omnes, which is important as jus cogens norms can not be contracted out of by parties in a private treaty (like, for example, rendition treaties).

He went on to say that evidence acquired by torture should not be admitted into court because of its unreliability and because inadmissibility would act as an effective deterrent to states actually using torture.

I’ve picked two particular extracts to look at in more detail. Firstly from paragraph 47:

I am prepared to accept (although I understand the interveners represented by Mr. Starmer QC not to do so) that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of article 3 for which the United Kingdom would be answerable, but no breach of article 5(4) or 6. Yet the Secretary of State accepts that such evidence would be inadmissible before SIAC. This suggests that there is no correspondence between the material on which the Secretary of State may act and that which is admissible in legal proceedings.

It’s clear therefore that the Law Lords held that it was possible to detain people on the basis of evidence acquired through torture (by foreign forces only) but that evidence won’t be heard by the SIAC who may declare the detention unlawful as a result. The Court went on to recognise that this situation – of being able to act on the basis of evidence you can’t rely on in court – is an anomaly in the law but the common law, as even the humblest first year law student will know, is not immune from anomalies.

Secondly from paragraph 50:

I am not impressed by the argument based on the practical undesirability of upsetting foreign regimes which may resort to torture. On the approach of the Court of Appeal majority, third party torture evidence, although legally admissible, must be assessed by SIAC in order to decide what, if any, weight should be given to it. This is an exercise which could scarcely be carried out without investigating whether the evidence had been obtained by torture, and, if so, when, by whom, in what circumstances and for what purpose. Such an investigation would almost inevitably call for an approach to the regime which is said to have carried out the torture.

This is so important, perhaps the most important part of the judgment. Not only did the House of Lords therefore say that situations of terrorism are no excuse for the use of torture given its non-derogable nature (paragraph 50) but it also stressed the importance of being able to stand up to foreign regimes. This isn’t the first time the House of Lords has said such a thing. In a landmark asylum case Islam v Secretary of State for the Home Department the House of Lords held that just because it might be politically undesirable to say that women were an oppressed group in Pakistan does not mean that the Court should not say so and should not grant asylum on the basis of that where appropriate.

Good judgment, despite the problem with being able to incarcerate on the basis of such evidence (ameliorated by the SIAC being disallowed from regarding such evidence), but effective implementation will require that the Government and the SIAC have the backbone to name torture when and where they see it.

 

Waziristan Out of Control

In another worrying indication that the Government continues to struggle to control the Waziristan area of Pakistan (see here for a report on the ‘undeclared war’ there), BBC News reports on some worrying developments in Pakistan where violence is breaking out in an almost uncontrollable manner in the North West Frontier Province, particularly in Waziristan:

At least 12 people have been killed and 30 injured in an explosion in Pakistan's troubled tribal area bordering Afghanistan, officials say. The blast ripped through a hotel and shops in a market in Jandola town in South Waziristan….. Four paramilitary soldiers and a journalist have gone missing in South Waziristan in recent days. The bodies of two of the soldiers have now been found. One report said they had been beheaded, another that their throats had been cut.

South and North Waziristan have been at the centre of prolonged confrontations between the army and militant groups. Hundreds of militants and more than 250 Pakistani soldiers have died in the tribal areas along the border with Afghanistan in the past two years....

North Waziristan saw a further development this week when 15 people were killed in clashes that started after bandits tried extorting money from Islamic students at a roadblock. The students, backed by local tribesmen sympathetic to the Taleban, set fire to the gangsters' homes. They then hung the bodies of at least three of the bandits from electricity polls. Residents said the fighting was so fierce the authorities did not intervene.

 

Torture Evidence Useable but Not Admissable

Sky News have just reported that the House of Lords handed down its decision on the admission into evidence in criminal trials of information acquired from terrorist suspects as a result of torture, even by non-British troops. This case was an appeal from a Court of Appeal decision of last summer in which the Court held that evidence acquired in United States detention camps as a result of torture could be used in the Special Immigration Appeals Court. This is the court in which certificates to indefinitely detain non-nationals suspected of being involved in terrorism or having terrorist links but who can not be deported for reasons of international law are challenged under the Anti-Terrorism, Crime and Security Act 2001 (the indefinite detention portion of which is now repealed as a result of last year’s House of Lords decision in A &Ors v Home Secretary which found it to be a violation of the European Convention on Human Rights).

In today’s decision then, or at least the little we know about it thus far, the House of Lords held that evidence acquired through torture should not be admitted into British courts but that should information be acquired by such methods it should be acted upon to prevent terrorist attacks for example and that the Home Secretary could detain someone on the basis of such evidence although it couldn’t be heard by the SIAC in reviewing that detention.

On the whole, however, from what we know of the judgment it’s positive. I’ll post more as more details become available.

Update The BBC report doesn't clarify the minutiae of the judgment re: acting on such evidence and the Home Secretary being able to detain people on the basis of it. The Sky News report is somewhat ambiguous on it, failing to demonstrate clearly whether those were elements of the judgment or elements of the argumentation. Will keep looking for some more clarification.

Another Update The BBC News story on the torture case now includes this extract from the judgment of Lord Carswek
"The duty not to countenance the use of torture by admission of evidence in judicial proceedings must be regarded as paramount and to allow its admission would shock the conscience, abuse or degrade the proceedings and involve the state in moral defilement."
This is an excellent statement which clearly shows that the Law Lords consider torture to be something absolutely outlawed by both treaty and custom and jus cogens (the highest kind of international law) because of the reference to shocking consciousness and moral obligations not to partake in torture. Still lacking clarification on the implications in that Sky News story but I’m beginning to believe they must have just been reporting on the argumentation in that piece.

The practical implication of this judgment, by the way, is that where someone claims evidence was acquired by torture that SIAC will now have a duty to investigate. This is much more significant than it may firstly appear – I’ll write more on it a little later on.

Update No. 3 The BBC New Story has been updated again to include a note on the Lord Chief Justice's (Lord Bingham) judgment:
"I am startled, even a little dismayed, at the suggestion (and the acceptance by the Court of Appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all." He said the principles of common law "compel the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice."

Wednesday, December 07, 2005 

Boycott Ford

Ford may have said that their accession to the American Family Association’s threat to boycott them over advertising to the gay market was only about a few ads but as industry magazine WardsAuto reports it goes much further than that. (Via AMERICAblog):

Ford Motor Co.'s decision to cease advertising in gay publications for its Jaguar and Land Rover luxury brands is part of a truce between the auto maker and the American Family Assn. (AFA) to avert a threatened boycott by the right-wing Christian conservative group, Ward‚s learns....As part of the latest agreement hammered out Nov. 29, sources confirm Volvo Cars will continue to advertise in the publications but will use generic ads not tailored to the gay community. In addition, Ford has agreed not to sponsor any future gay and lesbian events but will continue to maintain its employee policies, such as same-sex partner benefits.

Time to play fire with fire. Here’s the Ford Ireland website – find your local dealership through the top right hand corner facility and write to Ford demanding an explanation, encourage family and friends to boycott Ford and its companies in the future and show them that fundamentalist Christian yobs aren’t the only ones with market power.

 

Bloggeresses Unite

I have decided to heed Suzy’s call for calm in the current debate about women bloggers in the Irish corner of the blogosphere. In response to Auds’ initial post I (and Beth and Maura) were pretty strong in our opinions (which of course can’t be seen as ‘strength’ but has to be defined as ‘catfighting’ by United Irelander…quelle surprise) and Auds responded to them in a recent post explaining why she does not define herself as a feminst. I have no problem with women not describing themselves as feminists – I don’t understand it, but I respect your right to self-definition – but what I do have a problem with is women saying they hate feminism, which is what I responded to in Auds’ initial post. But ok….some women are feminists and some women aren’t. Fair enough

I wouldn’t even have put up this post were it not for noticing this load of drivel from United Irelander. In relation to my post he writes:

Then Fiona at Mental Meanderings decided to stop doing the ironing temporarily and to add her two cents (more likely her husband's two cents seeing as men are the natural bread-winners)

Just to let you know yes, I do sometimes iron, when I get a break from writing a PhD, writing a book, completing two conference papers, the blog and teaching ten hours a week all of which leads to me earning significantly more than two cent in a lesbian household where, seeing as we both have perfectly healthy waistlines, the absence of a “natural bread-winner” appears to have had no negative effects.

Truth be told it’s exactly the breed of condescending idiocy evident in UI’s post that dissuades Irish women from blogging more.

Update United Irelander has posted a response to this in which he basically says 'ah I was only joking'. Yeah, hilarious. I mean, everyone knows the inverse of the knob joke is the funniest thing around. I'm unconvinced and, frankly, uncaring.

 

ASIL Centenary Conference

I am beginning to look forward more and more to the ASIL Centenary Conference in Washington in March/April. I’m sure there will be a lot of international law bloggers there. I’ve already arranged to meet with Roger Alford of Opino Juris for a drink and maybe he’ll bring some of the other OJ gang (including Julian Ku…I suspect we might get into a bit of a tiff after a few G&Ts) and hope to be able to arrange a few more meetings with DC based people as well as other scholars who’ll be traveling there. I also gave in today and booked the $200 dollar a night hotel for my stay, although that rate is much reduced (special conference fee) and the room is fabulous looking: king room with sitting area and courtyard views/balcony. That’s what the funding is for I guess… It’s going to be a wonderful conference I’m sure and I might even convince A to come and join me for last two days (Friday and Saturday) to shop.
Update Now I also want to meet Opinio Juris' only woman blogger, Peggy McGuinness, who has today given me some hope in the ordinary American

 

War Language

Anne Applebaum takes an interesting perspective on the use of language around the war in Iraq. She’s concerned about the use of victory/loss language and I think she’s right. In the recent past we’ve heard Bush define victory in war, heard people worry about America losing the war in Iraq etc… but we’ve seen little reflection on the appropriateness of that kind of language. Applebaum rightly reminds us that there are some ambivalent wars, wars that end in partial fulfillment of objectives and partial failure, wars that achieve some ends but fail to achieve others, wars that can be described as neither successes and failures. In all likelihood Iraq will end up as one of those wars – Saddam will have been removed, some element of democratic rule will have been established in Iraq but the region will not have been stabilized, the backlash (especially a jihadist backlash) will grow and thousands of Americans will have suffered (both directly and indirectly).

It’s an excellent piece and well worth a look.

 

Wikipedia and Unreliability

Everyone seems to be in love with Wikipedia, which is a great resource, but most people appear to somehow fail to grasp the caution that should be exercised in relation to it. My students appeared somewhat obsessed with quoting from it in their assignments last year until I suffered something akin to spontaneous combustion at the top of the lecture theatre and warned them against ever citing it as a source again. There was even an attempt to cite it in a report I’m involved in writing at the moment which, thankfully, two of us vetoed. I get Wiki, I really do. It’s important and radical and collaborative and all of those good things BUT it shouldn’t be seen as authoritative. Anyone can put an entry up on Wiki – there is no checking mechanism. Now it’s mostly self-checking because people can change an entry if there’s some mistake in it, but the dangers of Wikipedia were made clear with false information being posted recently that implicated American journalist John Seigenthaler in the Kennedy assassination.

(Let me note that this has led to a minor change which may result in more authoritative entries but I remain unconvinced).

The bottom line is that Wiki is great as an easy reference tool for something you’re interested in, maybe even for blogging. But for academic papers etc… just stay away from it and *GASP* open a book. The internet is great – it’s made research and writing much easier especially in expensive research environments like law – but you must be careful to use authoritative sources and Wikipedia just isn’t included there.

P.S. www.google.com is not an acceptable source and its inclusion in a bibliography is likely to drive lecturers around the twist. Just so you know.

 

Condi for President? Those rumours again...

This is interesting. The folks over at Rice2008 are still very excited about rumours that Cheney is preparing to move aside to allow Condi step into the VP’s role in preparation for 2008 and that Bush is now referring to her as 44 (i.e. the 44th President of the United States – the next one). The Cheney rumour's been circulating for some time (I wrote about it here) and there's been no action, but maybe Fitzmas Mark 2 will bring some progress. I think, however, Rice is unlikely to go up for nomination. Her background would undergo even more scrutiny than is already the case and the seemingly not very well kept secret of her lesbianism would probably cause more hurt than she fancies while damaging her chances irreperably. I wager she's on her way home to Stanford with a sigh of relief come 2008.

Ho hum…

 

Condi, Torture and Shannon Airport

Condi is on a European tour trying to build relations and, in particular, trying to successfully rebut suggestions that people are being passed through European airports while being brought to places where they might be tortured in the course of interrogation. This project and her recent statements are of particular importance in Ireland given the use of Shannon airport in the ‘War on Terror’ and the lack of knowledge on the part of the Irish people about exactly who are what are being brought through that airport in American military (and, on occasions, civil) flights. It’s also of particular import for the Germans who are in a similar situation with Frankfurt airport.

There are a couple of things of concern here. The first is the practice of ‘extraordinary rendition’ whereby people are ‘picked up’ and flown abroad to areas outside of the US jurisdiction. The second is the suspicion of the use of torture by Americans abroad and/or the placement of American detainees in detention in countries where torture is routinely used in order to extract information from them. Thirdly there is the possibility that detainees (and particularly those subject to extraordinary rendition) may be subject to cruel and inhuman treatment and punishment.

In a key statement Rice claims:

In conducting such renditions, it is the policy of the United States, and I presume of any other democracies who use this procedure, to comply with its laws and comply with its treaty obligations, including those under the Convention Against Torture. Torture is a term that is defined by law. We rely on our law to govern our operations. The United States does not permit, tolerate, or condone torture under any circumstances. Moreover, in accordance with the policy of this administration:

-- The United States has respected -- and will continue to respect -- the sovereignty of other countries.

-- The United States does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture.

-- The United States does not use the airspace or the airports of any country for the purpose of transporting a detainee to a country where he or she will be tortured.

-- The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the United States seeks assurances that transferred persons will not be tortured.


While Rice is probably right in saying that extraordinary rendition may be allowable under international law (or at least the part of the law of war that America chooses to apply in any given situation) there is a worrying element to this statement, which means it should not be seen, as Julian Ku appears to perceive it, as a statement that should reassure us all that there are no illegalities.

Firstly to perceive it as such would be to believe implicitly in this statement. I find such faith difficult, particularly given the reluctance of Cheney et. al. to accede to McCain’s anti-torture amendment and their attempts to exempt the CIA from the prohibition of torture. Secondly there is no mention of cruel or inhuman treatment or punishment, i.e. treatment which fails to reach the (high) threshold of definition of torture but is nevertheless illegal with the right to be free from such treatment being generally seen as a non-derogable right (although not a peremptory norm as is the case with the right to be free from torture).

While most people have a natural in-built skepticism that has only been accentuated by the truth of American conduct over the past four years the Irish government appears to have lost its appetite for healthy skepticism and questioning, stating that they believe the American reassurances that Shannon is not being used for any illegal activities (even though a plane known to be part of the rendition process has landed in Shannon on numerous occasions). I’ve already written about how important it is that we get some kind of handle on the Shannon issue here, namely that we revoke the permissions to land there and extricate ourselves from the legally and morally dubious position in which we currently find ourselves. What a pity our government doesn’t seem to have the backbone to actually make the move.

Monday, December 05, 2005 

Truth and Justice in Northern Ireland

I’ve been meaning to talk about the ‘On the Runs’ issue in the North for a while but just haven’t had a chance to get around to it. The basic issue is that in order to bring an end to the issue of people being on the run for crimes committed in the north some kind of amnesty should be introduced. Hain has declared that in Northern Ireland there will be specially convened courts who may hand down convictions but people will not be imprisoned or punished: they’d be convicted and have a criminal record but that’s all. In the Republic the suggestion is that people will be put through the criminal justice system and then the Government will ask the president to commute the sentence. Much of the discussion around these proposals has focused on the model as opposed to looking at the principle of the matter.

Is it a good idea to introduce some kind of justice-lite for people involved in ‘the Troubles’? My initial response is that it is. Such schemes are common in periods of transitional justice and, more importantly, they are rarely if ever perfect. At a time of transition the criminal justice system plays a delicate role: the re-establishment of the Rule of Law and the exposition of truth. Now I’m no fool to believe that any criminal justice system can actually succeed in either of these aims but it should attempt to fulfill these objections to the greatest degree possible. Re-establishing the Rule of Law will always be difficult because of the political considerations on who should be prosecuted, should there be prosecutions, what about the Realpolitik in any situation, what scheme will we implement etc… As for exposing the truth, well, most people would accept that the legal system as it is traditionally constituted is incapable of exposing truth (indeed I’ve presented a number of papers on amending the traditional system of international criminal tribunals to try to get to the factual truth as well as the legal truth).

In Northern Ireland we have to come up with some way of fulfilling those two aims. I’m not sure that the system proposed is the best way forward and would rather see the introduction of a Truth and Reconciliation Commission with a deadline for submission of intention to testify and an amnesty for all of those who agree to testify at the Commission. Those who decided not to would be subject to the normal criminal justice system. Of course I’m aware that the South African TRC was not perfect (two excellent books on it are Antje Krog, Country of My Skull and Terry Bell & Dumisa Buhle Ntsebeza, Unfinished Business: South Africa, Apartheid and Truth) but the basic idea is good and, I think, will be helpful in Northern Ireland where the primary objective at this stage must surely be getting to the truth and giving people the resolution of knowing what happened to their loved ones and why.

A different scheme in the North and the Republic and a distinction between different kinds of criminal will be at best unhelpful and at worse destructive to reconciliation in the North.

Saturday, December 03, 2005 

Dog-Killing Squirrels and Stray Commas

According to Technorati the most discussed story on the blogosphere at the moment is the BBC Report that ‘Russian’ squirrels managed to kill a dog that was barking at them. While I’m sure some people are getting excited about the ‘science’ part of this story, the thing that struck me most was the part I’ve underlined in the following extract:

Passers-by were too late to stop the attack by the black squirrels in a village in the far east, which reportedly lasted about a minute. They are said to have scampered off at the sight of humans, some carrying pieces of flesh.


Now call me a stickler for grammar and punctuation but honestly…this sentence, as written, means that some of the humans that scared the squirrels away were carrying pieces of flesh. Unless this is some obscure Russian tradition I have never heard of I presume the author intended to show that some of the squirrels were carrying pieces of flesh. The sentence should therefore read
The squirrels, some of which were carrying pieces of flesh, are said to have scampered off at the sight of humans.
Can’t the BBC website office afford a copy of Eats, Shoots, and Leaves??

 

The Death Penalty and the Debasement of Society

The other day America executed the 1000th person since the reinstatement of the death penalty in 1974. This is a mark of shame on America. I fail to see, from any perspective, how the death penalty can be morally justified, but from a legal theory perspective I find it equally bemusing.


The criminal law exists in order to identify and punish acts that are blameworthy, moral blameworthiness usually coinciding with legal blameworthiness. But what are the precise objectives or aims of the criminal justice system? In short they can be identified as retribution, rehabilitation and deterrence.

While the death penalty clearly fulfills the first of these objectives – retribution – it does not rehabilitate or indeed make any attempt at rehabilitation. Neither, as extensive date proves, does it act as an effective deterrent to crime. Any punishment that exists solely to exact retribution should be excluded from all criminal justice systems as it debases that system and, as a result, the society the system exists to protect.

The criminal law is a reflection of society: every crime is seen as a crime against society at large and the system therefore operates on behalf of society a large. Where that system kills society kills, therefore the death penalty is institutionalized murder committed by everyone that system purports to protect and represent.

There is also the unfortunate truth that some convictions are unsound. The danger of unsound convictions will never be erased: it is a result of the margin of error introduced by human involvement in the criminal justice system. The potential for such mistakes is simply increased by the fact that all decision-makers either consciously or subconsciously allow their personal perspectives and beliefs to come to bear on their decision making processes. Therefore people of marginality races, ethnicity, religions, sexual orientations etc… will always stand a greater chance of being wrongfully convicted and, in systems like America, being wrongfully put to death.

America purports to be a Christian country governed by moral consciousness as well as fairness and respect for the rights of all. America was fundamental to the development of the international human rights movement and international human rights law. America has one of the strongest constitutional protections of fundamental rights in the world. YET America continues to systematically abuse the rights of people abroad and in its own jurisdiction. Let this latest execution be the last. Abolish the death penalty and restore moral force and legitimacy to your criminal justice system and your society.


Daedalus has an excellent post on the death penalty here.

 

Mama Bush to the Rescue?

Is Barbara Bush coming over all Mama Bear? Looks like it....oh well, it's about time someone gave Cheney a slap...

Friday, December 02, 2005 

Same-Sex Marriage in South Africa

The South African Supreme Court has handed down a momentous decision recognising the marriage of two women and giving the Government one year in which to extend civil marriage to same-sex couples in Minister of Home Affairs v. Fourie (judgment is available here in PDF). This is significant not only for South Africa but also for people interested in comparative constitutionalism on which the marvellous Roger Alford on Opinio Juris has an excellent post here.

Fourie will also be important in forthcoming European Convention of Human Rights cases on gay marriage. Given the importance of the doctrine of margin of appreciation in the European Court of Human Rights (i.e. the idea that each state has a discretion in matters of moral complexity but that discretion reduces commensurate with the emergence of a position among a number of states) the more countries that recognise same-sex relationships in law, the smaller the margin of discretion in relation to marriage rights will be. I'm currently writing a paper on this for the Lesbian Lives Conference in UCD in February so Fourie serves to strengthen the already strong argument for the extension of rights to marry to same-sex couples.

 

Bloggeresses and Feminism

SiglaMag this morning featured a post on women bloggers in the Irish blogosphere (reminding me that I need to update my blogroll as well….that’s next on the list) which made some really good points on the importance of encouraging more women to blog. As blogging becomes more and more important culturally we should be concerned with ensuring that as many women as want to blog can blog. Now this is important – people will say things like ‘anyone can blog, that’s the whole idea of it’ but the pertinent question is whether women are facilitated in blogging?


Often blogging can seem like a very ‘masculine’ activity because it’s sometimes seen as a techie pursuit and because sometimes peoples’ lack of techie skills is noted, (teasing for having a generic template, for example, tends to originate from ‘de boys’ that like techie things whereas if, like me, you just want somewhere to write and barely know what a template is then you don’t really care as long as it works!) there might be some perception that blogging isn’t for the girls.


The blogosphere might also be perceived of as sexist. Take, for example, the dubbing of Ann Althouse as the Berkeley house whore when she criticized the (moronic) Pajama Media corral? You wouldn’t find someone calling a man a whore for criticizing something or expressing an opinion – it’s a gendered slur and indeed Althouse was disappointed (understatement?) that feminist bloggers hadn’t rushed to her defence after that slur was thrown (in fact she is referred to by the new ‘nickname’ in the Wikipedia entry on Pajama Media…). Is that ‘welcoming to women’, ‘facilitating women’? No – I think it makes the bloggosphere somewhat intimidating for women who mightn’t have Althouse’s mettle…


In response to the Sigla post Auds put up the ‘I’m 22 and a woman and I hate feminism and it makes my skin crawl’ post on www.realitycheck.ie. Here’s the choice extract:

I'm a 22 year old girl and I hate feminism. I'm not a feminist. As a woman, I don't want my achievements to be lumped in with those of my sex. My decisions are my own and my opinions don't come straight from my ovaries. And I really don't like monologuing about my vagina.

I've no interest in the great big loving sisterhood bursting through glass ceilings. (Especially when the women left behind to sweep up the glass fragments are underpaid women for whom "career" is a foreign notion and work is a matter of cold, hard cash - and have nothing in common with the feminist establishment)

This entire passage is based on stereotypes of feminism and feminists as people who tend to monologue about their vaginas, write poetry about menstrual blood and commune with the Goddess (and there are some women like that as well) mixed with a stereotype of feminists as the powerful, scary, shoulder-pad-laden corporate woman who climbs the ladder and then pulls it up behind them. In truth neither stereotype reflected in this extract accurately reflects feminism and what feminism is about and, aware of the danger of sounding condescending, it reflects a complete and utter lack of understanding of what feminism is. Feminism is a complex, political belief that recognises that women have been systematically disempowered in society and are disadvantaged as a result of their gender and sex. It is a movement that aims to redress that disparity in power and opportunity. From there different schools of feminist thought develop and people tend to decide on how they give want to give expression to their feminism based on which school they find most theoretically convincing. Just like any other political movement there is a theoretical underpinning to feminism and as a political movement it can’t be legitimately criticised unless there is an understanding of that theory.


Auds simply bashes feminism in this extract and fails to offer any justification for her self-confessed hatred of feminism: she doesn’t engage with the theory, she doesn’t explain her point of view. This kind of polemic is reflective of the ignorant dismissal of feminism rife among young women who have the opportunities they have because of the feminist movement and who now shun that label, shun the movement that helped to liberate them, fail to recognise the inherent patriarchy within a liberal system such as Ireland’s and refuse to inform themselves about feminism for fear of being labeled the undesirable man-hating feminist.


Maybe Auds will create a sensible, reasoned post on why she hates feminism and then we can actually engage in debate on its relative merits and on why increasing the number of women bloggers in Ireland is important.



 

Gay Blood 3

The IBTS conversation continues on Damien’s blog with an excellent post on why and how the policy of not accepting gay blood is determinatively homophobic. There’s also been a good bit of conversation about this over on SiglaMag where Sinead posted about this after I started the conversation this week. One commenter in particular (Dealga) wondered whether the policy could possibly be deemed homophobic when lesbians were not included in it. The answer, simply, is yes.


First of all the exclusion of lesbians from homophobic policies is nothing new: we were never illegal for example (although there were policies and laws designed to persecute queer women, particularly in the states where it was an offence for a woman to wear more than a stated number of pieces of male clothing) although there are obviously plenty of lesbians out there! In fact the invisibility of lesbians even from persecutory policies is further proof of our exclusion and invisibility generally, which is a rant I don’t really have the energy for right now.


[It is also probable that sex with men (either straight or gay) is more dangerous in terms of infection than sex between women but as far as I know we’re lacking a proper body of research in this context]


Secondly the specific targeting of gay men tends, to my mind, to reflect the different straight attitudes towards gay male and gay female sex. Lesbian sex is eroticized and portrayed as something ‘hot’ by all forms of media, not only the adult entertainment industry. Therefore the ‘revulsion’ people sometimes claim to feel in relation to queer sex is not a factor when it comes to lesbian sex. It is, however, largely a reaction when it comes to gay male sex – both anal and oral sex. It’s quite easy to see how the IBTS policy is not only a homophobic reaction towards gay men but also a patriarchal policy by which gay male sex is reflected as repulsive and dangerous but lesbian sex as exciting, risk free, titillating etc…

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