Palestine v Israel six years on: time for a decision?

May 1, 2024 irishcentreforhumanrightsLeave a comment

Dr David Keane is a graduate of the Irish Centre for Human Rights’ LLM and PhD programmes, and is currently Assistant Professor of Law at Dublin City University.

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On 23 April 2018, Palestine submitted an inter-State communication against Israel under Article 11 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Palestine’s communication, almost 350 pages long, alleges a range of Convention violations including the prohibition of apartheid in Article 3 ICERD. Six years on, we are still awaiting a decision from the Committee on the Elimination of Racial Discrimination (CERD/the Committee). In the meantime, the question of apartheid in the Occupied Palestinian Territories (OPT) has arisen also in submissions before the International Court of Justice (ICJ/the Court) in the request for an Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem. It seems likely at this point that the ICJ will issue its Advisory Opinion before CERD decides Palestine v Israel. However, apartheid does not form an express part of the question asked of the ICJ, while it has been specifically litigated in Palestine v Israel. As a result, it is not certain the Court’s Advisory Opinion will be able to guide the Committee on this question. This post briefly explores the arguments currently before both bodies in terms of ICERD and apartheid. It concludes that CERD should urgently decide Palestine v Israel if it is not to undermine its inter-State communications mechanism and that of the wider UN treaty bodies.

Article 3 ICERD

Outside of its universal status as a peremptory norm, three treaties address apartheid – ICERD, the 1974 International Convention on the Suppression and Punishment of the Crime of Apartheid (Apartheid Convention) and the 1998 Rome Statute of the International Criminal Court. Adopted in 1965, ICERD is the first international instrument to condemn apartheid. It remains the only treaty that addresses State obligations in relation to apartheid, with the Apartheid Convention and the Rome Statute relating to individual criminal responsibility. It is the most ratified of the three treaties, and with 182 States Parties, the only one with a claim to universality – both Israel and Palestine, as well as all permanent members of the UN Security Council, have ratified ICERD. As Libya posited to the ICJ: ‘The prohibition of racial discrimination and apartheid is reflected most in CERD.’

However, ICERD does not provide a definition of apartheid. As a result, it is offered as the principal treaty source of State obligations, while the Apartheid Convention and the Rome Statute provide a potential definition of apartheid and evidentiary standard against which a claim of apartheid may be tested. Indeed, a joint submission by Palestinian NGOs to CERD in 2019 alleging apartheid in the context of Israel’s State report used the Rome Statute definition as a guide. Palestine’s communication in Palestine v Israel takes a similar approach, providing ‘an examination of Israel’s policies and practices against the definition of apartheid in these conventions [Apartheid Convention and Rome Statute] to see whether they meet the criteria laid down for the crime of apartheid’.

In terms of State obligations, Article 3 ICERD reads: ‘States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.’ I have argued elsewhere that Article 3 contains two obligations – a collective obligation to ‘particularly condemn’ racial segregation and apartheid that falls on all States Parties, and an individual obligation to ‘prevent, prohibit and eradicate’ that falls on States Parties with practices of this nature in territories under their jurisdiction. This is how CERD has implemented Article 3. A communication from its first session in 1970 called for information in State reports on ‘Condemnation of racial segregation and apartheid, in accordance with article 3’; it did not address the second limb of Article 3, since practices of apartheid were not under the jurisdiction of any State Party (South Africa would not ratify ICERD until 1998). From 1970-94, CERD required all States Parties to condemn apartheid, which resulted in questioning in the State reporting mechanism on their diplomatic, economic and other relations with what it termed the ‘racist regimes of Southern Africa’, which included South Africa, Namibia and Southern Rhodesia. ‘Other relations’ included any military cooperation, as well as sporting and cultural relations. This body of work must be one of the earliest examples of an erga omnes obligation being applied, as all States Parties to ICERD were systematically examined in relation to violations of the Convention being committed by other States which were not even a party to the treaty.

Apartheid before the ICJ

In its 30 December 2022 request for an Advisory Opinion, the UN General Assembly did not expressly ask the ICJ to consider the issue of apartheid in the OPT. Instead, it reads:

‘What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967 … and from its adoption of related discriminatory legislation and measures?’

Since apartheid is not a direct part of the request, it is not certain the ICJ will address the issue. Nevertheless, as Palestine submitted in February 2024 hearings: ‘Undoubtedly, apartheid falls within the scope of discriminatory “measures” referred to in the UNGA resolution requesting this advisory opinion’. Palestine’s earlier July 2023 Written Statement to the Court provided a separate section on how Israel’s racial discrimination against the Palestinian people amounts to apartheid. Its October 2023 Written Comments on the Written Statements of other States and organisations further highlighted how 21 of these ‘expressly conclude that Israel is committing apartheid in the OPT’, including two States – Namibia and South Africa – ‘each of which have direct experience and profound understanding of what constitutes an apartheid regime’. In the hearings, Palestine called on the Court ‘to declare that Israel’s discriminatory practices against the Palestinian people are tantamount to apartheid’. It was supported by South Africa, among others: ‘South Africa beseeches this Court to examine the institutionalized régime of discriminatory laws, policies and practices applied by Israel alongside the definition of the crime of apartheid, and to find that Israel subjects Palestinians to what constitutes an apartheid régime’.

Recent blog pieces by Victor Kattan and Kai Ambos have considered the “apartheid claim” before the ICJ notably in relation to the Apartheid Convention and the Rome Statute. The significance of ICERD has also been raised, although there has been a lack of clarity as to the exact position of CERD which has come through in some ICJ submissions. Thus, a number of evidentiary sources have been put forward to the ICJ that apartheid exists in the OPT, including the report of the UN Special Rapporteur Michael Lynk, reports by Yesh Din, BT’Selem, Human Rights Watch and Amnesty International, as well as statements of senior Israeli figures. Some State submissions have cited also CERD in that regard, such as that of The Gambia:

‘Once again, the Court has before it extensive, credible and independent fact-finding demonstrating conclusively that Israel has imposed an apartheid reality in the Palestinian territories. This is clear in the reporting of the United Nations Special Rapporteur, who concluded that “Israel has imposed upon Palestine an apartheid reality in a post-apartheid world”. This is also reflected in the findings of the Committee on the Elimination of Racial Discrimination.’

Similarly, South Africa considered ‘the reality of apartheid becoming so obviously explicit as to now being recognized, not only by South African and Palestinian victims of apartheid themselves, but by the broader international community, including both Israeli and international human rights organizations’, with the accompanying footnote citing CERD concluding observations to Israel, as well reports by Michael Lynk, Amnesty International and others.

While the UN Special Rapporteur and NGO reports cited have all unambiguously concluded that the situation in the OPT is apartheid, this is not true of CERD. To date, CERD has not found a situation of apartheid exists in the OPT in the State reporting procedure, despite being specifically requested to do so since 2012 by NGOs and civil society in the context of Israel’s report. It has unquestionably found Israel to be in violation of Article 3 ICERD (see here para 24), but since Article 3 refers to ‘racial segregation and apartheid’, and not only apartheid, a violation of this provision does not necessarily entail a situation of apartheid exists. Indeed, CERD members have in the past expressly clarified to Israel that they were not reaching a finding of apartheid (see here paras 42 and 47).

Palestine v Israel

This may in part have motivated Palestine to bring its inter-State communication against Israel in April 2018 – to require CERD to decide the issue, which it has sidestepped in the reporting procedure to date by citing violations of Article 3 without individuating its elements. Palestine’s inter-State communication to CERD is clear, requesting ‘findings to the effect that…Israel’s policies and practices in the occupied territory of the State of Palestine constitute apartheid within the meaning of Article 3 CERD’. Hence, while the Court may address the issue of apartheid, the Committee must do so.

The potential legal consequences of Palestine v Israel relate to Israel and to all States Parties to ICERD. In relation to Israel, Palestine submits that it ‘must dismantle the existing Israeli settlements as a necessary pre-condition for the termination of the system of racial discrimination and apartheid in the occupied territory of the State of Palestine’. The call that Israel must dismantle the existing Israeli settlements is hardly controversial in international law. As early as 1980, UN Security Council Resolution 465 called on Israel ‘to dismantle the existing settlements and, in particular, to cease, on an urgent basis, the establishment, construction and planning of settlements’ in the OPT. But the link between the settlements and racial segregation and apartheid is what CERD is being asked to determine. This was signaled in the 2013 report of the Independent International Fact-finding Mission of the UN Human Rights Council which documented the many rights violations that emanate from the settlements in the OPT, describing also ‘a system of total segregation’ (at para 103).

Palestine further submits to CERD that Third States ‘must not recognize as lawful this illegal situation, nor render aid or assistance in any form in maintaining that situation.’ Obligations on all States Parties can flow from ICERD, as evidenced in CERD practice on apartheid in southern Africa from 1970-94 highlighted above, but also in the more recent use of its early warning and urgent action mechanism in relation to China and Gaza, elements of which were addressed to ‘all States’. However, the Committee has never articulated in detail the ‘all States’ obligations of Article 3.

Although ICERD is silent on time limits to conclude the inter-State communications procedure, relevant Rules of Procedure adopted in April 2022 require completion within a ‘reasonable timeframe’ (discussed here). Now that a two year mark has been passed for the merits phase, and a six year mark for the communication overall, surely the ‘reasonable timeframe’ standard has been exceeded.

Conclusion

The February 2024 hearings before the ICJ illustrate how the issue of apartheid in the OPT has come to the fore. In the hearings on the Wall in January 2004, both South Africa and Namibia contributed written submissions but neither described the situation in the OPT as apartheid (see here and here). Today, both States, ‘victims of apartheid’, have called on the ICJ to recognise the situation in the OPT as apartheid. It is not certain the Court will address the issue, however it would undoubtedly be difficult for it to ignore. ICERD has been cited as one of just three international instruments that expressly address apartheid. For six years, CERD has had before it an inter-State communication of the greatest importance – does apartheid exist in the OPT? And if so, what would be the legal consequences for Israel and for all States Parties to ICERD? It seems likely now that the ICJ Advisory Opinion will inform any outcome in Palestine v Israel, rather than the other way around. This appears a missed opportunity given CERD is the “guardian of the Convention” and best placed to offer a view on obligations it implemented in relation to apartheid for some twenty-five years. In addition, excessive delay may undermine the inter-State communications procedure before CERD and other UN treaty bodies, already little used by States Parties. Palestine v Israel should be informing the Court in its Advisory Opinion determinations. Instead, we continue to wait.

‘The care amendment and single issue feminism’

March 5, 2024March 5, 2024 irishcentreforhumanrightsLeave a comment

Siobhán Mullally is Established Professor of Human Rights Law, and Director of the Irish Centre for Human Rights at the School of Law, University of Galway.

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In reflecting on the upcoming ‘care referendum’, many of us have questioned why the Government decided not to follow the recommendation of the Citizens Assembly to replace the sexist, harmful language of Article 41.2 with a positive obligation to support care work in the family and the wider community. Instead what we are now presented with, is a proposed constitutional text that recognises only the provision of care by members of a family to one another, deliberately rejecting an opportunity to recognise care as a public good.

An insight into the Government’s position can be found in the differing views expressed by the Supreme Court in the landmark Sinnott v Ireland case, a case that was taken by Jamie Sinnott, a young man with autism, and joined by his mother Kathy Sinnott. Kathy Sinnott arguedthat the state’s failure to provide free education facilities appropriate to the needs of her son, had imposed inordinate burdens on her as a single parent and full-time mother. The State’s failure to protect her son’s rights, she argued, also breached her constitutional rights as the primary carer, violating Article 41.2. of the Constitution.

Chief Justice Keane, giving judgment on behalf of the majority of the Supreme Court, rejected her arguments, however. While her position, he said, evoked “respect, admiration and compassion”, these were not grounds in law for any award of damages.

Essentially, the majority of the Supreme Court in the Sinnott case acknowledged the work undertaken by Kathy Sinnott, but refused to acknowledge any rights arising from her role as a carer. Justice Susan Denham (later Chief Justice Denham), in a strong dissenting judgment, attempted to rescue Article 41.2, which she argued, did not assign women to a domestic role, but rather sought to give recognition to the work performed by women in the home. In this case, she concluded, the state had failed to give due recognition to the work performed by Kathy Sinnott as a carer, work that was of “immense benefit for society”.

Justice Denham’s arguments stand in marked contrast to the reluctance of the majority of the Court to give legal recognition to the work of carers. The transformative potential of rights was blocked by a deeply gendered division between the public and the private spheres and a presumption that the tests of justice do not extend to the care work undertaken primarily by women.

It is a presumption that we see reflected again in the proposed amendment, which though not gender specific, returns us to a deeply gendered presumption that care takes places within the family.

The enactment of 1937 Constitution posed a tragic dilemma for feminists. It marked a break away from the Free State that had been in existence since 1922. For women, however, it failed to fulfil its promise of equality and rights. The depiction of the self-sacrificing mother as an emblem of Irish nationalism has consistently limited the transformative potential of rights, and of a feminist ethics of care. By 1937, women’s political, economic and reproductive rights, had been so severely curtailed that women were explicitly barred from claiming for themselves a public identity. Hanna Sheehy-Skeffington was one of the most vocal opponents of the 1937 Constitution. The 1916 Proclamation of Independence, she said, had given Irish women “equal citizenship, equal rights and equal opportunities”. Subsequent constitutions had “filched these” or “smothered them in mere empty formulae”. Sadly, as disability rights and social justice advocates highlighted, the proposed constitutional text on care, risks becoming yet another empty formula, another moment of exclusion.

As we rush to the polls on International Women’s Day, a day that is about activism for equality and rights, we would do well to recall the words of feminist philosopher, Iris Young – ‘the totalising moment always leaves a remainder’. By scheduling the referendum on March 8^th, the Government presumed that we would forget that feminist struggles are about more than sexist language. Feminist struggles are also about justice, care, and equality, for all, and about building and mobilising for a supportive state.

In a deeply unequal society, we cannot afford to squander this opportunity to fix our constitutional text. What should have been an opportunity to place a feminist ethic of care firmly into the constitutional text, has instead become a moment of exclusion, retrenching a gendered division between public and private care.

I am confident that the sexist, harmful language of Article 41.2 will, in the future, be fixed. It has embarrassed successive Governments appearing in the hallowed halls of UN buildings, provoking strong criticism and not a little ridicule from UN equality and human rights bodies. It rightly provokes anger and disbelief among young Irish women, many of whom will vote for the first time on March 8^th. I am not so confident, however, that a future Government will fix our continuing failure to recognise the universal vulnerability of the human condition, and commit to supporting the public good of care work – in families and communities. I look forward to a time when sexist, harmful language is removed from the Irish constitution. However, as Audre Lorde said, “There is no such thing as a single-issue struggle because we do not live single-issue lives”.

Unaccompanied Children and the Use of Age as a Barrier to Rights

February 19, 2024February 20, 2024 irishcentreforhumanrightsLeave a comment

Dr Claire Raissan is an Irish Research Council postdoctoral fellow in University College Cork and holds a PhD from the Irish Centre for Human Rights, University of Galway.

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On 18 January 2024, the European Court of Human Rights (ECtHR) handed down its judgment in the case of T.K. v Greece (Application no. 16112/20). This case concerned an unaccompanied minor who had been incorrectly ‘aged’ as over eighteen years and treated as an adult by the Greek authorities, despite the fact that he had firmly asserted his minority during the registration process. In so doing, the Greek authorities successfully used the (falsified) age of the applicant as a barrier to his child-specific rights under international, regional and domestic law and policy. The discriminatory ‘culture of disbelief’ and use of age as a barrier to rights for unaccompanied children gives rise to a failure by states to implement, inter alia, procedural safeguards for such children who are then treated as adults. Recent case law of the ECtHR shows that such actions by states and their authorities will give rise to violations of Articles 3, 8 and 13 of the European Convention on Human Rights (ECHR). This blog examines the obligations on states that arise under Articles 3 and 8 ECHR with respect to unaccompanied children who experience the use of age as a barrier to rights at the hands of national authorities, ultimately advocating for structural change in the treatment of this group.

Continue reading →

Palestine Program for Health and Human Rights

January 30, 2024February 2, 2024 irishcentreforhumanrightsLeave a comment

Irish Research Council and Hardiman PhD scholar at the University of Galway, Rania Muhareb, will speak on the The South Africa ICJ Genocide Case Against Israel: Implications for Palestinian Health. The webinar is co-sponsored by the Religion, Conflict, and Peace Initiative at Harvard Divinity School, the Carr Center for Human Rights, and the Center for Middle Eastern Studies at Harvard University. Further details and link below.

On January 11, the South African legal team argued that Israel, in action and intent, breached the 1948 Genocide Convention. Join us for a webinar with experts to discuss the right to health in Palestine and the crime of genocide. Register here: http://hsph.me/PPHHR-Feb2024

‘Submission on Protection of Persons with Disabilities in Gaza’ to the UN Special Rapporteur on the rights of persons with disabilities Ms. Heba Hagrass, and the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 Ms. Francesca Albanese

January 22, 2024January 22, 2024 irishcentreforhumanrightsLeave a comment

Submission from Keelin Barry, Irish Research Council Government of Ireland PhD scholar, Irish Centre for Human Rights (ICHR) and Centre for Disability Law and Policy (CDLP), School of Law, University of Galway, Ireland

November 17, 2023

This statement aims to respectfully request urgent attention to the current catastrophic situation faced by persons with disabilities in Gaza.

Israel ratified the Convention on the Rights of Persons with Disabilities (CRPD) on the 28 September 2012. Israel has a clearly defined responsibility to take all measures to ensure the safety and protection of all persons with disabilities, under Article 11 of the Convention on the Rights of Persons with Disabilities (CRPD) titled ‘Situations of Risk and Humanitarian Emergencies’.

‘State Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies, and the occurrence of natural disasters’ United Nations, (2006).[1]

This statement aims to highlight the extreme and particular risk to life, precarity, injury, and protracted suffering that persons with disabilities and older people face, living in Gaza during the widespread attacks on civilian areas, civic infrastructure, refugee camps, designated shelters and medical facilities in all parts of Gaza. We also wish to acknowledge, and bear witness to, the immense bravery and agency of persons with disabilities and older people in Gaza, who have been disproportionately affected by the previous wars on Gaza, and the 17 year blockade.

We call Israel to account on its obligation to comply with the object and purpose of the Convention on the Rights of Persons with Disabilities during the current armed conflict in Gaza, specifically in relation to Article 11 ‘Situations of Risk and Humanitarian Emergencies’ of the CRPD.[2] We call for an immediate ceasefire, and the full protection of persons with disabilities living in Gaza. We also remind Israel of its duty to uphold its obligations under international human rights law and humanitarian law, as well as its obligations under United Nations Security Council Resolution 2475, to protect persons with disabilities during armed conflict. We stand in solidarity with persons with disabilities and older people in Gaza, and assert that calling for a full and immediate ceasefire is an issue of disability human rights and justice.

According to UNOCHA as a result of the complete collapse of the health system the Gazan Ministry of Health (MoH) has been unable to update the fatality figures since 10^th November 2023, when it last released fatality figures of 11,078 people killed, of whom 4,506 are children, 3,027 are women, and 678 are elderly people. A further 27,490 people in Gaza have been injured as of the last MoH update on 10 November 2023 (with a likely significant increase in fatalities and injuries in the past seven days without a MoH update of the figures). It is estimated that another 2,700 people are currently missing including 1,500 children. Over 1.6 million people have been displaced since 7 October 2023. Of those killed 68% of fatalities are estimated to be women and children. In addition, the widespread destruction of civic infrastructure, whole neighbourhoods, universities, medical facilities, roads, and community facilities have a direct correlation to the loss of disabled accessible support infrastructure in Gaza, which will have catastrophic impacts on access, agency, and the participation of persons with disabilities in public life in Gaza for years to come.

During armed conflict, persons with all types of disabilities, as well as older people can be largely invisible, and are therefore at heightened risk during conflict, and are disproportionately impacted by violence.[3]

Since October 132023, there have been ongoing short notice evacuation orders given by the Israeli authorities to the people of Gaza, instructing the entire population to ‘evacuate’ from the North of Gaza to the Southern region, including evacuation warnings for hospitals without any safe pathways or places to be able to evacuate to for safety. The reality is persons with disabilities and older people may not be included in emergency ad hoc evacuation attempts during the attacks on Gaza or may physically not be able to evacuate as a direct result of their disability(ies). This means some persons with disabilities will not be able to evacuate and will remain at home when others leave to try to seek safety.

Specific issues impacting disabled people in Gaza include a lack of electricity resulting in lifts not working in high rise apartment blocks acting as a barrier to disabled people trying to evacuate. Most bombardments happen without notice, or with very short notice. These warnings, where given, may allow only minutes to evacuate, which is not enough time for many persons with disabilities to evacuate to safety.

Other barriers to evacuation arise for persons with certain types of disabilities including those with physical disabilities (including people who use mobility aids), as well as older persons with disabilities, low vision or blind persons with disabilities, people with intellectual disabilities, deaf or hard of hearing people, people with psychosocial disabilities, and children and women with disabilities who may face additional barriers to being able to evacuate. In addition, some persons with disabilities may be unable to leave due to lack of accessible evacuation options and high support individual needs acting as a barrier to evacuation. Another barrier to persons with disabilities evacuating is that the bombing of Gaza has caused extensive damage to the local environment creating inaccessible pathways for disabled people.

The widespread loss of life and huge burden of injuries sustained has also resulted in many persons with disabilities themselves being killed or injured. In addition, the significant numbers of people including children who have been severely injured in the bombings of Gaza will undoubtly cause many people to have newly acquired long term disabilities because of these injuries, with potentially lifelong impacts. Persons with disabilities may also face a loss of personal carers and family care supports because of the injuries or death of their carers and family members. The loss of these social and kinship support mechanisms increases levels of risk, isolation, and reduces agency and coping strategies available to persons with disabilities and older people living in Gaza.

The ongoing 17-year blockade of Gaza has seen the people of Gaza already experiencing widespread food insecurity, malnutrition, and entrenched poverty as a result of this structurally violent protracted blockade. Since October 7, 2023, the situation has worsened.

The bombardment of the Southern part of Gaza has also occurred, which disproportionately impacts on persons with disabilities and older people who have been displaced as a result of Israeli warnings to move to the South of Gaza, but who may not have support services or accessible accommodation available, including those who are living in tents and overcrowded shelters.

Cutting of electricity and communication by phone and internet also disproportionately negatively impacts on disabled people. For example, the lack of electricity limits the operation of electric wheelchairs or scooters, CPAP & BPAP machines, dialysis equipment, prevents persons with disabilities charging their phones and being able to operate vital assistive technologies.

The restrictions on access to internet and limited communications also disproportionately impacts upon persons with disabilities who may use mobile phones as a means of alternative communication and assistive devices. This compounds the already existing problem that most emergency information in conflict is not made accessible to persons with disabilities, and without access to the internet this reduces persons with disabilities ability to directly access information.

The entire population in Gaza is water insecure with water production currently at 5% of normal capacity. According to the UNICEF WASH Cluster as of November 2nd 2023, 2.3 million people of Gaza have access to 6 litres of water per day (domestic and drinking) in comparison to the World Health Organisation (WHO) daily recommendation of 100 litres per person per day. In addition, there is a lack of electricity to pump and clean water so individuals in Gaza are not able to easily access clean water. People are drinking brackish water, which increases risks to health because of waterborne diseases, and dehydration, especially persons with disabilities who may face additional barriers to accessing clean water. According to OCHA people drinking water from agricultural wells are consuming saline water with over 3,000 mg per litre of salt content. This causes serious health risks raising hypertension levels, especially in babies under six months, pregnant women, people with kidney disease, and also increases risk of diarrhoea and cholera, with potentially negative health impacts on persons with disabilities. In addition, it is important to remember that there is often a requirement for persons with disabilities to have access to clean water for certain medical equipment to function.

The basics of life such as access to clean water, electricity, heat, cooking gas, and food have been severely cut since the war began, compounding an already food insecure precarious situation as a result of the long 17 year blockade of Gaza. During the current Israeli military strikes, ongoing bombings of civilian targets such as bakeries, community buildings, and neighbourhood shops have occurred across Gaza. The lack of food has seen pictures of hundreds of people queuing for food and bread for hours each day despite the risks. However, the reality is many persons with disabilities are not able to queue for hours for food and are therefore currently in a position of extreme food and water insecurity. Some persons with disabilities have special nutritional requirements, including medical nutritional formulas that may not be available as a result of the erosion of medical stocks and supplies, as well as difficulty accessing pharmaceutical supply centres, due to destruction of medical facilities, and difficulty travelling. People fleeing bombings may have left assistive devices behind or have had assistive devices destroyed in the bombings. Supplies of batteries for people who use hearing aids may not be available, or batteries for other assistive devices. Similarly, many persons with disabilities require medications or medical supplies for chronic health conditions including insulin for diabetes, heart medications, cancer drugs, pain management drugs, psychiatric drugs, and other specialist treatment drugs, that are not available due to a lack of supplies of medicines, with negative health consequences. According to OCHA, people currently at high medical risk in Gaza include 1,000 kidney failure patients, 9,000 cancer patients, and 130 neonatal babies in incubators.

Prior to the current war on Gaza, as a result of the protracted 17 year Israeli blockade, there was already a severe lack of access to medicine and medical equipment and supplies of all types. Since October 7, 2023, Israel has only allowed the bare minimum of medical supplies to enter Gaza. This has resulted in a complete collapse of the health system and depletion of medical supply stock available, which disproportionately impacts persons with disabilities, many of whom rely on medications and medical equipment to sustain life.

All women who are pregnant, including disabled women who are pregnant, face extreme risk being pregnan t and giving birth in Gaza. Access to post-partum care for pregnant women including disabled women is also likely to be reduced.

According to OCHA, 1.6 million people are currently internally displaced in Gaza. Internally displaced persons (IDP’s) with disabilities are often forced to live in inaccessible overcrowded accommodation such as UNWRA schools, tents, or other shelters. The first winter rains and flooding have occurred in Gaza this week, heightening the grave difficulties persons with disabilities face living in these shelters in wet and cold conditions during the coming winter months.

Another significant issue for displaced disabled people living in crowded shelters are the widespread lack of disabled accessible toilet facilities which is very problematic, as a majority of toilets are squat toilets and are not accessible to use for many persons with disabilities.

Some persons with certain types of disabilities may have a strict bladder and bowel management plan that necessitates bladder self-catheterisation every three hours, for example for those with spinal cord injuries. Similarly, a lack of running water and ability to shower for certain persons with disabilities including those with skin integrity issues, or bowel or bladder incontinence can have negative impacts on their health. Lack of available supplies of hygiene and sanitary products, continence pads and continence aids, menstrual hygiene products, and other required medical supplies also have negative health ramifications for persons with disabilities. Concerns have also been raised about an extreme lack of sexual and reproductive health supplies including a lack of access to contraceptives, and lack of access to sexual and reproductive health care for internally displaced women and girls.

Displaced persons with disabilities face increased risks in new unfamiliar environments, that are not accessible. These locations can be extremely difficult for persons with disabilities to orientate to and navigate. This is especially the case for persons with disabilities who as a result of death or injury of carers over the past five weeks, may face additional difficulties navigating these new shelter environments having lost kinship support and carers. Orientation and access issues in internally displaced shelters can also be extremely challenging for individuals with certain types of disabilities such as blindness and visual impairment, physical disabilities, hearing impairments, intellectual disabilities, as well as those who have recently sustained injuries or acquired new or additional disabilities.

There is a lack of access to emergency psychosocial supports in Gaza, and prior to this war there was a dearth of long term psychosocial supports available. This is particularly relevant for people who have sustained newly acquired psychosocial disabilities, in the context of Gaza’s current severe lack of emergency psychosocial supports not being available. It is also important to recognise the impact of trauma on children, with a particular focus on the heightened vulnerabilities of children, including children with disabilities, who have lost parents and grandparents, and other family support members.

Just as medicine shortages impact on the health of persons with physical disabilities and chronic illnesses, many persons with psychosocial disabilities may want access to a consistent supply of psychiatric medications. The current severe lack of medications in Gaza includes interruption of access to psychiatric medications, which could result in negative health consequences for persons with psychosocial disabilities.

Over the past five weeks, the grave, unprecedented levels of violence and ongoing indiscriminate bombardment of Gaza is arguably a mass disabling event, including widespread psychological trauma, injury, and newly acquired forms of disability for both children and adults, that will have potentially lifelong impacts on people’s lives in Gaza.

We call for:

An immediate ceasefire.
Immediate and unconditional release of all hostages.
Effective protection to all persons with disabilities in Gaza respecting and fulfilling Article 11 of the Convention on the Rights of Persons with Disabilities (CRPD) ‘Situations of Risk and Humanitarian Emergencies’.
Compliance with United Nations Security Council Resolution 2475 adopted in 2019, to protect persons with disabilities during armed conflict.
Humanitarian access, with immediate opening of all border crossings into Gaza including Kerem Shalom, Erez Crossing, and the Rafah Crossing, expediating all medical supplies, fuel, and food entry to the Gaza Strip.

[1] CRPD, (2006), Art 11:10.

[2] To see 14^th March 2023 Joint Irish Centre for Human Rights (ICHR) and Centre for Disability Law and Policy (CDLP) submission to the CRPD Committee Draft General Comment on Article 11 of the CRPD please see: https://www.universityofgalway.ie/media/irishcentreforhumanrights/files/14.2.23-Keelin-Barry-Joint-Sublmission-ICHR-and-CDLP-to-the-Draft-General-Comment-on-Article-11-of-the-CRPD-docx.pdf.

[3] See: Report of the UN Special Rapporteur on the Rights of Persons with Disabilities, Mr Gerard Quinn, 19^th July 2021, A/76/146, ‘Rights of Persons with Disabilities in the Context of Armed Conflict’ available here, and his subsequent thematic report 20^th July 2022, A/77/203, ‘Protection of the Rights of Persons with Disabilities in the Context of Military Operations’ available here. Also of note is that on the 1 of November 2023, Human Rights Watch released its report ‘Gaza: Israeli Attacks, Blockade, Devastating for Persons with Disabilities’ which documents the difficulties persons with disabilities face in the current Israeli war on Gaza, and importantly details testimony directly from persons with disabilities living in Gaza that is available here.

UN human rights experts welcome start of ICJ genocide hearings in The Hague, reiterate call for ceasefire

January 22, 2024 irishcentreforhumanrightsLeave a comment

GENEVA (11 January 2024)

Cross-posted from Press Release of the UN Special Procedures mandate holders, https://www.ohchr.org/en/press-releases/2024/01/un-human-rights-experts-welcome-start-icj-genocide-hearings-hague-reiterate

(11 January 2024) – UN human rights experts* today welcomed the start of hearings before the International Court of Justice (“ICJ”) of a case brought by South Africa concerning allegations that Israel is committing acts of genocide against the Palestinian people. The experts emphasized that any decision the Court reaches on provisional measures must be respected and implemented by the parties to the dispute, as required by the ICJ Statute.

South Africa on 29 December 2023 asked the ICJ to urgently issue provisional measures ordering Israel to immediately suspend its military operations in and against Gaza and to protect residents from acts of genocide, alleging breaches by Israel of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”). The Genocide Convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. The hearings concerning the request for provisional measures will be held on 11 and 12 January at The Hague, in The Netherlands. South Africa’s filing also alleges that Israel is inciting genocide and has failed to prevent genocide.

“ICJ decisions are final, binding, and not subject to appeal. Adherence to any order the Court may make by the parties involved is imperative for protecting the rights of Palestinians and reinforcing the primacy of international law,” the experts said.

“We commend South Africa for bringing this case to the ICJ at a time when the rights of Palestinians in Gaza are being violated with impunity. We call on all States to cooperate with the Court as it interprets the Genocide Convention and to respect the role of the ICJ as an independent court of law.”

The experts also welcomed the statements of support by many States for South Africa’s action in bringing the case to the Court, as well as the principled stand taken by individuals and organizations worldwide that have expressed support for the submission of the case by South Africa.

The experts noted that this is not the first such case. In 2019, for example, The Gambia brought a case against Myanmar under the Genocide Convention to the ICJ, and asked for the Court to issue provisional measures calling for a halt to atrocities against the Rohingya people. The Court issued provisional measures in that case, which is still pending determination before the ICJ.

Both South Africa and Israel have ratified the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, as have 151 other States.

“South Africa’s case has broader implications for all States – not only those that have ratified the Convention – as all are obligated both to refrain from committing genocide, and to prevent and punish it wherever it occurs. All States must act together to prevent, halt, and punish genocide,” the experts said.

“The ICJ has in the past made clear that obligations under the Genocide Convention are of an erga omnes nature, meaning that any and all countries have a stake in preventing genocide wherever it is at risk of occurring. This plainly means that uninvolved countries have standing to bring a case like South Africa’s to the ICJ,” the experts explained.

In its application to the Court, South Africa cited numerous statements by UN Special Procedures mandate holders, including the experts’ repeated calls for international action to prevent genocide in Gaza. The mandate holders’ statements reference evidence of genocidal incitement by Israeli Government officials, including a stated intent to “destroy the Palestinian people under occupation”, and calls for a “second Nakba” in Gaza and the rest of the occupied Palestinian territory. These comments by Israeli officials have been made amidst the extensive use by Israel of powerful, often unguided weaponry in Gaza with inherently indiscriminate impacts, severe restrictions on the entry of lifesaving humanitarian aid, and attacks on health care services, all of which have resulted in a devastating death toll, including large numbers of women and children, the forcible transfer of more than half of Gaza’s population, and extensive destruction of life-sustaining infrastructure.

Recalling the alarming magnitude and intensity of the bombardments, the experts also reiterated their demand, issued in December 2023 along with other Special Procedure mandate holders, for an immediate ceasefire and a halt to displacement, domicide, and attacks on health infrastructure. The experts further called for immediate action to ensure the unimpeded delivery of desperately needed humanitarian aid to people in Gaza, especially for the sick or injured, persons with disabilities, older persons, pregnant women, and children.

Ireland could and should join South Africa’s genocide case against Israel

January 22, 2024 irishcentreforhumanrightsLeave a comment

Ireland must make decisions for itself – as a state party to the Genocide Convention, with a responsibility to act to protect humanity

Dr Maeve O’Rourke is a lecturer and Director of the Human Rights Law clinic, at the Irish Centre for Human Rights, School of Law, University of Galway

This article first appeared in the Irish Times, January 10 2024

The International Court of Justice (ICJ) will hear South Africa’s case against Israel under the 1948 Genocide Convention this week.

The emergency hearing, which will be live-streamed, focuses on South Africa’s request for “provisional measures”, including a ceasefire order and an instruction that Israel must halt its deprivation of food, water, fuel, shelter, clothing, hygiene, sanitation, medical supplies and assistance to Palestinian children and adults in Gaza.

South Africa alleges that Israel is committing genocide and failing to prevent or punish the direct and public incitement to genocide by senior Israeli officials and others. To order provisional measures, the ICJ needs to be convinced that at least some of the acts alleged “are capable of falling within the provisions of the convention”.

Any one of the 153 states parties to the Genocide Convention could have brought this case; countries owe their obligations to prevent and punish genocide to every other convention state party.

It is a case that Ireland could and should join. We could formally intervene after this week’s interim hearing to assert our interpretation of the convention’s provisions – as we did in 2022 in Ukraine’s case against Russia. Or we could file a separate case against Israel which the court could choose to add to South Africa’s.

To file our own case against Israel, Ireland would need to be in dispute with Israel over its compliance with the Genocide Convention. A basic first step would be to communicate with Israel that the crime of genocide appears to be occurring or imminent in Gaza, as numerous countries have done.

At the very least, Ireland should issue a statement in support of South Africa’s resort to the ICJ for the purpose of preventing serious international crimes.

Since mid-November, a large group of independent United Nations human rights experts have warned of “a genocide in the making” in Gaza and called for all countries to mobilise the international genocide prevention system.

These 15 special rapporteurs and 21 members of UN working groups have sounded their “alarm over discernibly genocidal and dehumanising rhetoric coming from senior Israeli Government officials, as well as some professional groups and public figures, calling for the ‘total destruction’ and ‘erasure’ of Gaza, the need to ‘finish them all’ and force Palestinians from the West Bank and East Jerusalem in to Jordan”. The independent experts note that “Israel has demonstrated it has the military capacity to implement such criminal intentions”.

Among these UN experts are the two esteemed Irish UN special rapporteurs: Prof Siobhán Mullally MRIA, special rapporteur on trafficking in persons, especially women and children; and Mary Lawlor, special rapporteur on the situation of human rights defenders.

The UN High Commissioner for Human Rights has described the situation in Gaza as “apocalyptic”. The UN emergency relief co-ordinator says “Gaza has simply become uninhabitable … while the world watches on”. According to Unicef, the “safe zones” which Israel designates are “tiny patches of barren land, or street corners, or half-built buildings, with no water, no facilities, no shelter from the cold and the rain and no sanitation”.

On January 5th, UN secretary general António Guterres informed the Security Council that ”hunger and thirst are rampant – and widespread famine looms”. Guterres states that an estimated 85 per cent of Palestinians in Gaza are displaced, with more than 60 per cent of homes destroyed. Israel has reportedly killed well over 22,000 people – the large majority children and women – and injured tens of thousands more, including in UN facilities and hospitals and locations announced as “safe”.

Save The Children, meanwhile, highlights that Israel’s indiscriminate bombing has cost more than 10 children per day one or both of their legs.

The Irish Government must offer a more considered response to South Africa’s initiation of ICJ proceedings. It is the least the people of Gaza, and all in Palestine and Israel – whose future depends on peace – deserve.

Last Sunday, Taoiseach Leo Varadkar told RTÉ that the Government has no intention of supporting South Africa’s claim. “Bear in mind what Hamas did on October 7th … Was that not also genocide?” the Taoiseach argued. Referring to the Holocaust, Mr Varadkar cautioned that “this is an area where we need to be very careful”.

Indeed, extreme care is needed when genocide is alleged. That is why the Government and all Oireachtas members should return early from their Christmas recess to debate the facts and law argued by South Africa, and Israel’s responses.

In South Africa’s 84-page legal submissions our Government politicians will find the definition of genocide: “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.”

Our politicians will note that South Africa’s legal submissions begin by recognising the gravity of a claim against Israel at the ICJ. These submissions unequivocally condemn and characterise as an atrocity crime under international law the targeting of Israeli civilians and other nationals, and hostage-taking, by Hamas and other Palestinian armed groups. However, rightly, the legal submissions emphasise that genocide is never, ever justified – and that all parties to the Genocide Convention are obliged to act to prevent its occurrence. In them, our politicians will read pages of expressions of intent which have accompanied Israel’s destruction of life and the conditions for living in Gaza. And our politicians will, hopefully, realise that Ireland must make decisions for itself – as a state party to the Genocide Convention and an international law actor in its own right, with a responsibility to act to protect humanity.

There are striking parallels between the present crisis in Gaza and Bosnia in the 1990s.

January 22, 2024 irishcentreforhumanrightsLeave a comment

Professor Shane Darcy, Deputy Director, Irish Centre for Human Rights

This article first appeared in the Irish Times, January 8 2024

There are striking parallels between the present crisis in Gaza and Bosnia in the 1990s. A common feature has been the deliberate displacement of populations, one which raises profound concerns under international law.

In March 1995, a directive issued by Radovan Karadźić, the president of the Republika Srpska, ordered the Bosnian Serb army to “create an unbearable situation of total insecurity with no hope of further survival or life” in Srebrenica, Bosnia. Over the course of four months, the inhabitants were deprived of basic necessities through the deliberate blocking of humanitarian aid convoys.

A military assault by Bosnian Serb forces in July 1995, during which homes and villages were destroyed, caused thousands of Bosnian Muslim civilians to flee Srebrenica. Many sought refuge in a United Nations peacekeepers’ compound in Potočari. Around 30,000 Bosnian Muslims were later forcibly removed from Potočari by forces under the command of General Ratko Mladić.

Both Karadźić and Mladić were eventually convicted by the International Criminal Tribunal for the Former Yugoslavia and given lengthy prison sentences for their roles in the “ethnic cleansing” in Bosnia, among other atrocities.

Bosnian Serb forces had created a coercive environment in Srebrenica “in which the Bosnian Muslims had no other viable alternative but to leave the enclave in order to stay alive”. The forced removal of civilians from Potočari was “not justified under international law”, the tribunal held.

The United Nations did not prevent these crimes, although the Security Council had been unanimous in its condemnation of serious violations of international law. It demanded the cessation of such conduct and unimpeded delivery of humanitarian aid. During the Balkan crisis, the Security Council imposed sanctions on relevant parties and created the international tribunal with a view to deterrence and accountability.

The contrast with the response of the Security Council to the situation in Gaza could not be starker. Despite the efforts of secretary general António Guterres and a majority of member states, the Security Council has not been able to adopt a resolution calling for a ceasefire. The United States has voted against.

The United States veto, combined with its military, financial and political support for Israel, effectively gives a green light to the continued military assault on Gaza which has already killed tens of thousands of Palestinians and displaced 1.9 million from their homes.

The mass killing of civilians and the taking of hostages on October 7th by Hamas and others does not excuse Israeli violations of international law, just as attacks by Bosnian Muslim forces on Bosnian Serb villages did not justify the actions of the Bosnian Serb army in Srebrenica and Potočari in 1995.

Following the October 7th attacks, the Israeli defence minister Yoav Gallant announced “a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed”.

Despite some humanitarian aid having been allowed to enter since then, there remains a widespread shortage of food, water, fuel and other essentials. Starvation and disease is rife. According to the World Health Organisation director general, “Gaza’s health system is on its knees and collapsing”.

Israeli forces have destroyed over 65,000 housing units in Gaza, as well as swathes of farmland and hundreds of public buildings, including schools, mosques and universities.

Tony Karon and Daniel Levy wrote in The Nationthat this conduct “suggests an intention to make the territory uninhabitable for the 2.2 million Palestinians who live there – and to push for expulsion via a militarily engineered humanitarian catastrophe”.

United Nations experts and Palestinian human rights organisations have been warning of the risks of “ethnic cleansing” in Gaza. Such fears are based not only on what is happening on the ground, but also on various Israeli proposals in circulation, as well as the words of senior politicians and others.

“We are now rolling out the Gaza Nakba”, is how one Israeli minister put it, while another called for “the voluntary resettlement of Palestinians in Gaza, for humanitarian reasons, outside of the Strip”. National security minister Ben Gvir views the war as an “opportunity to concentrate on encouraging the migration of the residents of Gaza” and re-establishing Israeli settlements.

International law as applicable in Gaza is unambiguous on this issue. The Fourth Geneva Convention of 1949 prohibits “individual or mass forcible transfers”, as well as deportations from occupied territory to the territory of the Occupying Power or any other country “regardless of their motive”.

Deportations or forcible transfers of populations have been prosecuted as international crimes since Nuremberg. The arrest warrant issued by the International Criminal Court for president Vladimir Putin concerns the forced transfer of children from Ukraine to Russia. In the context of the deportation of Rohingyas from Myanmar to Bangladesh, the Court has emphasised that a humanitarian crisis created by unlawful activity cannot serve to legitimise displacement of a population.

The International Criminal Court has jurisdiction over Gaza and an active investigation is currently underway. This has not prevented international crimes from taking place, as arrest warrants have yet to be issued. Prime minister Benjamin Netanyahu has been concerned enough, however, to denounce the investigation as “pure anti-semitism”.

The United States acting unilaterally or through the United Nations has the power to prevent further ethnic cleansing of Gaza. The United States, the European Commission and Egypt have publicly stated that they do not support the forcible relocation of the Palestinians outside of Gaza.

In Srebrenica, the forced removal of the Bosnian Muslim population happened alongside the execution of thousands of men and boys. Such atrocities were found to constitute genocide.

In Gaza, the risk of genocide grows more acute as Israel’s relentless assault continues and the population remains trapped – in addition to the many killed by Israel’s bombing campaign, reports are emerging of extra-judicial executions of Palestinians by Israeli forces.

Unlawfully displacing Palestinians from Gaza is no solution. Those with the power to do so must make every effort to end the conflict, prevent displacement and take the necessary measures to enforce observance of the cardinal rules of international law.

“There is room at the inn”.

December 22, 2023December 23, 2023 irishcentreforhumanrightsLeave a comment

Dr Ciara Smyth

The protests and subsequent arson at the Ross Lake House Hotel in Co Galway have brought sharply into focus (again) the issue of asylum seeker accommodation and the bigger question of whether Ireland is taking in too many asylum seekers. The claim is that the inn or even Ireland is full.

There has been a marked increase in the number of people claiming asylum in Ireland. Last year saw 13,645 asylum applications being made in Ireland – a 68% increase on the previous year. This places Ireland in the top half of EU Member States as an asylum destination (12^th out of 27). Similar numbers seem to be applying this year.

However, if we pan out to look at the past decade, Ireland has been in the bottom half of EU countries as an asylum destination for most of the time. Moreover, there is still a huge gulf between Ireland and the top asylum-hosting countries in the EU. Ireland received just 1.4% of asylum applications in the EU last year, compared to Germany, France, Spain, Austria and Italy which, between them, received almost 75% of asylum applications. Therefore, although the numbers have increased dramatically, they have increased from an extremely low base. When further compared with impoverished asylum-hosting countries in the global south, any suggestion that Ireland is overburdened does not hold up.

Nonetheless, given the accommodation crisis in Ireland, it is understandable that some people perceive that asylum seekers are ‘competing’ with Irish citizens for scarce resources. However, the two problems – the accommodation crisis facing Irish people and the accommodation crisis facing asylum seekers – are distinct from one another, even if they overlap. The former problem is linked to successive government policies relating to homelessness, housing delivery, planning laws, house and rent prices and supports for buyers and renters. The latter problem is a product of direct provision.

Direct provision is the Irish system of asylum accommodation that has existed since 2000, whereby private contractors profit from providing bed and board to asylum seekers. The accommodation is often over-crowded, the environment unsafe for children, the food unnourishing and the general conditions a risk to mental health. The weekly allowance paid to asylum seekers places them below the poverty line. Since the government is reliant on the private market for supply, it cannot guarantee enough direct provision places. As a result, asylum seekers are also placed in emergency accommodation or, increasingly, have to sleep rough. Direct provision has been the subject of numerous critical domestic and international reports, not one but two major government reviews and a government white paper. It is slated for abolition in the current programme for government.

The alternative vision, which was settled on before the increase in asylum numbers and the arrival of people fleeing the war in Ukraine (about which more below), was to source and build permanent State-owned short-term accommodation, run on a not-for-profit basis. After three months applicants would move to own-door accommodation under the responsibility of local authorities and be integrated into the social welfare system. This would be delivered by a ‘whole of government approach’, involving all government departments as well as state agencies and local authorities. This approach never materialised. Instead the Minister for Children, Equality, Disability, Integration and Youth and his department have been left to grapple with the issue on their own. Meanwhile, the alternative vision has been overtaken by the numbers and overshadowed by events, like Ross Lake House.

Certainly, operational lessons can be learned from the Ross Lake House experience – about local consultation, about garda consultation, about the supports that asylum seekers and local communities need. But at the strategic level, the government needs to recommit to and resolve the long-standing issue of direct provision in light of current numbers.

The picture is complicated by the arrival of people fleeing the war in Ukraine. More than 100,000 Ukrainians have come to Ireland under EU temporary protection since the war began just under two years ago. According to Eurostat statistics from the end of October, this places Ireland in the top half (10 out of 27) of EU hosting countries.

The EU Temporary Protection Directive provides a framework for Member States to provide emergency protection when there is a mass influx of asylum seekers from a particular country. The advantage of it is that Ukrainians as a group are deemed to be in need of temporary protection, which prevents the asylum decision-making bodies from being overwhelmed. The disadvantage is that the directive fails to establish a burden-sharing mechanism and leaves it to Member States to decide on accommodation and supports.

Although the Temporary Protection Directive has been in existence since 2001, this is the first time it has been triggered. Therefore, how Member States operate it is largely an experiment. It may well be that Ireland’s initial response – which was to treat Ukrainians far more generously than ‘ordinary’ asylum seekers – has acted as a ‘pull factor’. In hindsight, it may have been preferable to treat the Ukrainian cohort the same as everyone else and raise the pitiful standard of support for all asylum seekers. The government now intends to do the former but not the latter. When its plan to funnel newly-arriving Ukrainians into private-rented accommodation after 90 days comes into effect in the New Year, this may add to the accommodation crisis, at least in the short term.

In short, it’s complex. The existing housing crisis, the delayed abolition and replacement of direct provision, and the increase in numbers of asylum seekers and Ukrainians have all intersected in a very public way. But the answer is not to close the door to people who are seeking protection. The answer is to redesign the inn.

Dr Ciara Smyth is director of the LL.M in International Migration and Refugee Law and Policy at the Irish Centre for Human Rights, University of Galway, and was a member of the McMahon Working Group on Direct Provision.

The Principle of Non-Refoulement Withstands a Landmark Legal Ruling in the UK: So Where Do We Go From Here?

December 1, 2023December 5, 2023 irishcentreforhumanrightsLeave a comment

Philip Collins is a PhD Candidate at the University of Galway’s Irish Centre for Human Rights and is also a graduate of the University’s LLM Programme in International Human Rights Law. His research focus is on the right to seek asylum within international refugee law. He is also a practicing immigration attorney in the US, specialising in asylum law and family reunification.

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On November 15^th, 2023, the UK Supreme Court handed down its highly anticipated decision in R (on the application of AAA (Syria) and others), the legal challenge lodged by asylum-seekers against the UK Home Secretary seeking to put an end to the UK-Rwanda Asylum Deal formed in April 2022. The deal (officially known as the ‘UK and Rwanda Migration and Economic Development Partnership’), outlined in a non-enforceable Memorandum of Understanding (‘MOU’), was meant to be an arranged exchange of development funding in return for Rwanda’s onboarding and processing of the claims of certain asylum-seekers arriving in the UK. After over a year-and-a-half of legal challenges in the lower courts, the UK Supreme Court issued its long-awaited ruling, finding that the Deal –at least in its current form– would be a violation of the UK’s international legal obligation to protect asylum-seekers from being sent or returned into danger, i.e., non-refoulement.

Non-refoulement stands as a well-established cornerstone of international refugee law, compelling states to refrain from returning refugees to the frontiers of territories where their life or freedom would be threatened on account of their race, religion, nationality, political opinion, or membership in a particular social group. Slightly different forms or elements of this principle are echoed throughout a number of international multilateral treaties, as well as the European Convention on Human Rights and in the UK’s own domestic law. Thus, after a thorough review of the Home Secretary and Rwanda’s assurances in relation to the Asylum Deal, along with the countervailing evidence presented by the UN High Commissioner for Refugees (‘UNHCR’) and other advocacy groups, the Supreme Court came to the unanimous decision that there were substantial grounds for believing that asylum-seekers would be at real risk of refoulement if they were sent to Rwanda, even despite its designation as a ‘Safe Third Country’.

The attempt to legally safeguard the Asylum Deal in this way was meant to closely follow UK’s 1971 Immigration Act, which (broadly) defines a ‘Safe Third Country’ as a place where asylum-seekers lives and liberty are protected, where they can apply for and receive refugee status, and where non-refoulement is respected and adhered to in accordance with the 1951 Refugee Convention. In other words, that there would be no risk of either refoulement or chain-refoulement, a process by which migrants are transferred from one state to the next until they are ultimately sent or returned into danger. Perhaps in theory, a ‘Safe Third Country’ arrangement could conceivably fall in line with international human rights and refugee law and the principle of non-refoulement – but in reality, these types of arrangements are fraught with complications. The 2016 EU-Turkey Deal for the return of Syrian refugees from Greece to Turkey, for example, placed many Syrians directly in harm’s way and resulted in many being forcibly returned to Syria. The US similarly formed an ‘Asylum Cooperative Agreement’ with Guatemala in 2019, flying hundreds of Honduran and El Salvadoran nationals to Guatemala where none, it was later found, received asylum, and many were returned to the countries and the dangers they originally fled.

By contrast, the UK judgment afforded a significant amount of deference to the UNHCR’s expertise, findings, and evidence relating to the Rwandan asylum system. For its part, the UNHCR adopts the position that asylum seekers and refugees should ordinarily be processed in the territory of the state where they arrive or which has jurisdiction over them, and that states should adhere to the international solidarity and burden-sharing spirit outlined the Refugee Convention even when undertaking ‘transfer arrangements’ with third countries. Where a ‘Safe Third Country’ policy such as the Asylum deal is proposed, UNHCR takes the position that such arrangements are unlawful forms of externalization where they “involve inadequate safeguards to guarantee international protection” or “shifting responsibility for identifying or meeting international protection needs to another State or leaving such needs unmet.” The Supreme Court reviewed UNHCR’s findings of such inadequate protection in Rwanda’s asylum system citing a lack of legal representation in the asylum process (para 84), 100% denial rates for certain nationals from conflict zones (para 85), and its ‘practice of refoulement’ (para 87), especially against asylum-seekers from the Middle East and Afghanistan. Additionally, it found that Rwanda’s assurances in a previous arrangement with Israel led to the clandestine deportation of hundreds of asylum-seekers to Uganda (para 96).

The responses from Rwanda and the Home Secretary to many of these issues proved unconvincing to the court as attempts to deflect or explain away the evidence. The Home Secretary even asserted that it makes no difference whether asylum claims are processed correctly in Rwanda since asylum-seekers would still not be subject to refoulement, an argument which the Supreme Court called “somewhat surprising” considering that the terms of the MOU directly contradict this claim (para 94). In the end, while it noted Rwanda’s good faith in entering into the arrangement, the Supreme Court relied on the evidence before it, noting that ‘intentions and aspirations do not necessarily correspond to reality: the question is whether they are achievable in practice” (para 102). On the evidence, the Court found that it was not.

This decision of the Court to rely on the evidence over the assertions of government officials to the contrary –and indeed to even to cite to and deferentially apply the principles of international refugee law and non-refoulement– undoubtedly make this judgment noteworthy on the international landscape. Legal practitioners everywhere, and especially in the UK, see this judgment as a validation of the rule of law in a world where anti-immigrant sentiment and policies have become the norm. Though even among supporters of the judgment, there has certainly been some valid criticism of the ruling’s focus on Rwanda’s own assurances about its asylum system, especially considering it is the UK, not Rwanda, that was seeking to externalize its own responsibilities to asylum-seekers in its controversial efforts to ‘stop the boats’. And for its part, a Rwandan government officials has decried the judgment as undue criticism of its commitment to international obligations and overall safety as a place for refugees.

Despite the importance and prominence with which this decision sits on the world stage, moving forward, it’s unclear what lessons will be learned from it. The immediate reaction from the UK Prime Minister was to press forward an emergency ‘Plan B’ on the UK-Rwanda agreement. And sentiments that the UK should withdraw from the European Convention on Human Rights, the law of which drove much of the Supreme Court’s decision making, have grown. A follow-up agreement with Rwanda or firmer international agreement, such as a bilateral treaty, could certainly make future challenges to the proposed policy much more difficult. By and large, the Supreme Court judgment bypassed any question as to whether a ‘Safe Third Country’ agreement in and of itself could be a lawfully viable mechanism to control migration.

In fact, the ruling certainly seems to suggest that had the evidence of a substantial risk of refoulement for asylum-seekers not been as strongly present in this case, the policy might have stood as a lawful exercise of the state – even where it might contradict the UNHCR’s contention that any agreement which completely passes all responsibility to another state to identify or meet international protection needs is an unlawful act of externalization. It follows, then, that potential future agreements with appropriate safeguards against refoulement for asylum-seekers might pass the Supreme Court’s test, but could fly in the face of the UNHCR’s position on transfers of responsibility. With that in mind, will this ultimately be a victory, then, for the rule of law, or does this leave the door open to “minimal risk” evaluations that would allow some, but not a substantial, amount of refoulement for asylum-seeking individuals? It’s difficult to see how such an arrangement could align with international refugee law.

For those states that are dead set on restricting migrant flows to their shores and borders, the tendency to abdicate their burden-sharing obligations and responsibilities toward asylum-seeking migrants is unlikely to dissipate anytime soon, even in the wake of this judgment. But for the first time in what feels like a long while on the world stage, international refugee law has carved out enough rights for refugees to show that, at the very least, there is a minimum standard below which states cannot and should not cross in denying them due protection. Whether this lesson is learned or not, and whatever the outcome of any future arrangements may be, it’s safe to assume there are at least six individuals praising the outcome of this judgment in a way that most others couldn’t: the Syrian, Sudanese, Iraqi, Vietnamese, and two Iranian individuals who fought the case all the way to the UK Supreme Court, and won.