Tag: Human Rights

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

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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.

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

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

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

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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.

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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.

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

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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 15th, 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.

Addressing human trafficking among refugees and internally displaced persons in Uganda: a role for human rights treaty bodies?

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To mark World Day against Trafficking in Persons (30th July), this blog highlights the ongoing work of the Irish Research Council and Irish Aid funded project ‘Human Trafficking, Forced Migration and Gender Equality in Uganda’

Dr Gillian Kane is a Postdoctoral Researcher at the Irish Centre for Human Rights, School of Law, NUI Galway.

1. Introduction

Since the adoption of the Palermo Protocol in 2000, States across the globe have adopted anti-trafficking law and policy, and increased efforts to address all forms of trafficking in persons. While the Palermo Protocol sits within a transnational organised crime framework, there has been a growing recognition that addressing human trafficking also requires a human rights based approach. The project ‘Human Trafficking, Forced Migration and Gender Equality in Uganda’ undertaken in partnership with the Refugee Law Project in Uganda, explores whether and how Uganda is moving beyond a criminal-justice centred response to human trafficking, particularly in the context of forced migration.

A central theme of the project is the potential of international and regional human rights standards to reform law, policy, and practice on human trafficking in displacement contexts in Uganda.  In view of this, this blog highlights the promise within UN human rights treaty body mechanisms, primarily through the lens of the Committee on the Elimination of Discrimination against Women (CEDAW Committee). In so doing, it points to some promise within CEDAW’s recent review of Uganda and calls for further action to build upon the foundation that has been established. Before turning to the CEDAW review mechanism, the following section outlines the problem of human trafficking in the forced migration context within Uganda.

2. What is the problem?     

Human trafficking, defined in Article 3 of the Palermo Protocol, contains three elements, which must be cumulatively fulfilled for conduct to fall within its scope, namely: an act, a means, and a purpose. Importantly, Article 3 explicitly states that when it comes to children, only the act and purpose elements need to be established. The definition is broad, encompassing a range of exploitative processes and conduct which can occur in displacement contexts. While the threat or use of force may be the means employed to exploit, subtler coercion, including the abuse of a position of vulnerability, is also included within Article 3.Significantly, consent is deemed to be irrelevant when one of the prescribed means is present. In addition, while transportation or transfer may satisfy the ‘act’ element, they are not required for conduct to amount to trafficking.

In view of the trafficking definition, and the lack of resources, family and social connections, and insecure position of refugees, asylum seekers, and internally displaced persons (IDPs), the risk of trafficking within displacement contexts is undeniable.  In addition to 1.7 million IDPs, Uganda hosts around 1.5 million refugees. These figures are only likely to increase as new drivers of displacement continue to emerge. Indeed, earlier in July 2022, a Regional Inter-Ministerial Conference on Migration, Environment and Climate Change was held in Kampala, Uganda, where, among other things, the nexus between climate change and displacement was on the agenda.

Given these rising figures, it is concerning that almost no data on the scale or nature of trafficking in humanitarian contexts in Uganda is available. To move beyond this, Gilbert Nuwagira, from the Refugee Law Project argues that ‘there is a need for a paradigm shift from the conventional assumptions and methodologies to interventions with a deliberate forced migration lens’. Simply put, effectively addressing trafficking in displacement contexts has to begin with acknowledging the risk, understanding what conduct may amount to trafficking, and taking proactive steps to identify it. An effective response also requires the involvement of multiple overlapping international legal frameworks, which extend beyond a criminal justice approach, and include international human rights law and international refugee law.

Despite this, trafficking prevention and protection obligations in refugee and IDP contexts continue to receive only limited attention. For example, the 2021 report on the UN Secretary General’s High Level Panel on Internal Displacement mentions trafficking only once, in relation to risks faced by children, and does not elaborate on protection or prevention obligations. In academic literature, too, discussions on the trafficking-asylum nexus are often framed around human trafficking as the basis of an asylum claim. These discussions are important and must continue. However, literature on the interactions between the anti-trafficking and refugee law frameworks, and on the application of international and regional human rights standards to trafficking in displacement contexts remains sparse.

When it comes to addressing trafficking in humanitarian settings, then, it is necessary to move beyond the silos of applicable frameworks, to acknowledge the explicit connections between displacement and trafficking, and to explore how these overlapping and complementary frameworks can be best operationalised to address trafficking in refugee and IDP communities. Encouragingly, there is evidence of progress. The emerging field of global migration law  provides a framework to move beyond siloed analyses and towards a more comprehensive approach to migration. In practice, The Global Protection Cluster’s Anti-Trafficking Task Team’s ongoing work on human trafficking in IDP settings stands out as a notable example. In addition, the 2021 Political Declaration on the Implementation of the United Nations Global Plan of Action to Combat Trafficking in Persons, explicitly acknowledges that ‘refugees and migrants in large movements face greater risk of trafficking in persons.’ Signs of promise can also be seen in the work of UN Treaty Bodies. In the following section, the role that human rights treaty bodies can play in assisting the move beyond siloed approaches, is explored through the lens of the CEDAW committee.

3. Signs of promise in the work of the CEDAW Committee?

While CEDAW’s focus is the elimination of discrimination against women and girls, many aspects of its work are relevant to efforts to address trafficking, and to the treatment of refugees and IDPs. The Committee performs three main functions, each of which have the potential to assist in efforts to tackle trafficking in the displacement context:

 (a) Reviewing Periodic State Reports: Uganda’s most recent review took place earlier in 2022 and the Committee’s report illustrates the potential to highlight the need to tackle trafficking among refugees and IDPs. In particular, the Committee noted that Uganda ‘remains a source, transit and destination country for trafficking in persons, in particular women and girls, and that there is a lack of statistical data on the extent of trafficking and its root causes, including in humanitarian settings’. It also raised concerns about ‘delays in birth registrations, in particular in rural and remote areas and within indigenous communities, delays in the registration, issuance and renewal of identity cards for refugee women and girls and the lack of information on measures taken to reduce statelessness.’ In Uganda’s 2010 CEDAW review – the last CEDAW review before 2022 –  the Committee underlined trafficking related issues, including the lack of statistical information, but it did not explicitly highlight the humanitarian context. Thus, the 2022 review represents a step forward in this regard.

(b) Adopting General Recommendations on Issues affecting Women and Girls:. Significantly, in 2020, the Committee adopted General recommendation No.38 (2020) on trafficking in women and girls in the context of global migration (GR38), which shone a light on, amongst other things, trafficking in contexts of displacement. For example, the recommendation explicitly ‘acknowledges that trafficking and exploitation of prostitution in women and girls is unequivocally a phenomenon rooted in structural, sex-based discrimination, constituting gender-based violence, and is often exacerbated in the contexts of displacement’ (emphasis added). It further states that ‘[g]irls who are unaccompanied or separated from their families or other support structures due to displacement are particularly vulnerable to being trafficked’. Among the recommendations in GR 38 is the call to develop ‘regular coordination between the asylum procedures and trafficking protection systems, such that when both grounds are recognized, women and girls have access to both refugee status and protection as victims or potential victims of trafficking’.  

Beyond GR38, three other CEDAW General Recommendations are of note. First, General recommendation No.30 on women in conflict prevention, conflict and post-conflict situations acknowledges the connection between trafficking and displacement. Second, in General recommendation No.32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women, the Committee ‘recognizes the persistence of other forms of exploitation concomitant with displacement, such as trafficking’. Third, General recommendation No.37 on Gender-related dimensions of disaster risk reduction in the context of climate change acknowledges links between climate change, displacement and human trafficking.

(c) Decide on Individual Communications: the adoption of the Optional Protocol to CEDAW opened up the possibility for individuals to bring complaints of alleged violations of the Convention. However, while the Optional Protocol currently has 114 State Parties and 11 Signatory States, Uganda has yet to ratify it. This means that the individual communication procedure remains beyond reach as a means of redress for those within Uganda.  

Taken together, these three functions certainly reveal promise when it comes to the Committee’s capacity to play a meaningful role in addressing trafficking among refugees and IDPs. Particularly encouraging is the fact that the connection between trafficking and displacement is explicitly highlighted in several General Recommendations, and that specific recommendations have been made to Uganda. Clearly, there is not only potential for the CEDAW Committee to assist in the work of holistically addressing trafficking, but it has already begun to deliver on some of this potential. In this way, a foundation has been laid for future efforts to build upon.

However encouraging this is, some of the Committee’s potential remains constrained by States. The fact that the CEDAW complaint mechanism remains out of reach for those in Uganda, unless and until the State ratifies the Optional Protocol, exemplifies this. In addition, the promise identified above can either be more fully realised or hindered, depending on the extent to which actors within the State take action on the domestic plane on the basis of the reports and recommendations. In Uganda, for example, the Coordination Office to Counter Trafficking Persons (COPTIP), which sits within the Ugandan Ministry of Internal Affairs could incorporate recommendations and guidance from treaty bodies into its National Action Plan (NAP) for Prevention of Trafficking in Persons. In this regard, it is encouraging to see that the current NAP acknowledges the risk of trafficking among refugees, although the references to displacement contexts are limited and IDPs are not mentioned at all. In addition, it is essential that domestic actors tasked with refugee and IDP protection, as well as international actors working in Uganda, such as UNHCR and IOM also work towards implementing the relevant treaty body recommendations.

 When it comes to civil society, those advocating for enhanced protection in humanitarian settings can remind States of their duties under CEDAW and point to the authoritative guidance of the Committee to strengthen the case for the need to address trafficking in these contexts. The  Uganda Coalition against Trafficking in Persons (UCATIP), for example, could play a valuable role in this regard.

4. Conclusion: a role for human rights treaty bodies?

This blog has highlighted the need to proactively address human trafficking in the displacement context, particularly in Uganda, which hosts a significant number of the world’s displaced persons. In so doing, it underlined the possibilities that exist beyond the criminal justice framework, pointing to the potential within human rights treaty bodies to assist in this work. The functions of CEDAW and the steps it has taken to speak to the issue of trafficking among refugees and IDPs illustrate how human rights treaty bodies- although not specifically tasked with addressing human trafficking – can and do play a valuable role.

Beyond CEDAW, other treaty bodies and review mechanisms have the potential to play a similar role. Since trafficking does not only affect women and girls, it is essential that this potential is realised. One example is found in the Joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return. This general comment highlights the risk of trafficking for unaccompanied and separated children. The Universal Periodic Review (UPR) is an additional review mechanism where obligations relating to trafficking in displacement contexts could be highlighted. Uganda’s most recent UPR took place in 2022. While trafficking and displacement related observations were made, and Uganda’s progressive refugee policies were commended, obligations relating to trafficking in displacement contexts remained absent from the review. This shows that some of the promise within these mechanisms remains as yet untapped.

Moving forward, it is essential to build upon the promising work that has begun to move beyond siloed approaches and towards a holistic approach to addressing trafficking in humanitarian contexts, in Uganda, and beyond. The ‘Human Trafficking, Forced Migration and Gender Equality in Uganda’ project is contributing to such work, through analysis of what obligations from across applicable frameworks require to address trafficking among refugees and IDPs. This work is all the more important as existing and new drivers of displacement continue to leave many with no choice but to flee their homes in search of protection.

*With thanks to project PI Professor Siobhán Mullally for input on this article.

Bloody Sunday at Fifty: Strasbourg, Saville and the Search for Justice

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Fifty years ago this Sunday, members of the 1st Battalion of the British Army’s Parachute Regiment killed thirteen people during a civil rights march in the city of Derry in Northern Ireland. The conclusion of the Saville Tribunal of Inquiry, published almost forty years after the events of Bloody Sunday, highlights not only the obvious criminality of the killings but their significant impact:

The firing by soldiers of 1 PARA on Bloody Sunday caused the deaths of 13 people and injury to a similar number, none of whom was posing a threat of causing death or serious injury. What happened on Bloody Sunday strengthened the Provisional IRA, increased nationalist resentment and hostility towards the Army and exacerbated the violent conflict of the years that followed. Bloody Sunday was a tragedy for the bereaved and the wounded, and a catastrophe for the people of Northern Ireland.

Catherine Kelly, whose brother Michael was killed on 30 January 1972, welcomed the publication of the Inquiry’s findings in 2010: “The wait has been almost 40 years. Today the truth has been told”.

The Saville Inquiry sought to put the record straight as to the events of Bloody Sunday, given the enduring distortions of the Widgery Tribunal, which had reported within months of the events, largely exonerating the soldiers and suggesting that some of those killed “had been firing weapons or handling bombs in the course of the afternoon”. These conclusions were accepted by the British Government upon the report’s publication in April 1972, with the Prime Minister Edward Heath praising Lord Widgery’s “objective and painstaking analysis of events” in the House of Commons.

On the publication of the Saville report in 2010, a copy of the Widgery report was symbolically torn up outside the Guildhall in Derry. Joe Duddy, the brother of 17 year old Jackie, who had been killed while running away from soldiers in the car park of the Rossville flats in the Bogside, said that Widgery had “destroyed our loved ones’ good names”.

While the publication of the Widgery report in April 1972 was met with dismay and anger by the families, there was an immediate determination not to let it be the final word. Amongst the various condemnations, Brigid McGuigan, whose husband Bernard had been killed, told the Irish Times that she was considering taking a case to the European Court of Human Rights to clear his name. This post reflects on attempts to have the Strasbourg authorities address the events of Bloody Sunday, before turning to the present context of continuing but increasingly faltering accountability efforts for the killings of 30 January 1972. These come at a time of sustained hostility on the part of the British government towards the European Convention system for the protection of human rights arising in part out of its application to the war in Iraq.

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Brigid McGuigan’s reference to the European Court of Human Rights was something of a novelty in 1972, compared with the frequency with which the court in Strasbourg, and the International Criminal Court in The Hague, are mentioned today in the context of serious human rights violations. That being said, there have always been efforts to draw international attention to the conflict in Northern Ireland and to draw comparisons with other similar situations.  Kevin Boyle, who later led the Law School here at NUI Galway, and his colleagues in various civil rights groups drew comparisons with the civil rights movement in the United States and sought at times to emulate its tactics. (As Mike Chinoy’s recent book recounts, Boyle spoke of having the “unfortunate record” of having first suggested holding the anti-internment march in Derry in January 1972). Internationalisation also took the form of calling on outside actors to act as impartial observers whose objectivity might validate the experience of victims. The Bloody Sunday Inquiry itself, for example, although chaired by the British judge Lord Saville, was made up of two other members from outside the jurisdiction, William Hoyt from Canada and John Toohey of Australia, a departure from prior practice.

Before Bloody Sunday, efforts were already underway to bring the United Kingdom before the European Court for its practices in Northern Ireland viewed as being contrary to the European Convention of Human Rights. The United Kingdom had been the first State to ratify the Convention, which entered into force in 1953 and thus applied in Northern Ireland throughout the period 1968-1998. Ireland, also a State Party from that time, had been called upon by various organisations and individuals in 1971 to launch an inter-State complaint against the United Kingdom regarding its use of internment without trial, the so-called “five techniques” of interrogation, as well as killings that had taken place at the hands of State forces. Sean MacBride as chair of Amnesty International wrote to Jack Lynch, putting it that an application to Strasbourg against the United Kingdom could have an “immediate effect on the behaviour of its forces in the Six counties”. The Irish government made an application in December 1971.

In the aftermath of Bloody Sunday, Ireland amended its application against the United Kingdom alleging that the killings amounted to violations of the right to life as protected by Article 2 of the Convention, as had been claimed for the seven deaths in the original application (including the killing of Father Hugh Mullan in Ballymurphy). The European Commission ultimately found this additional application inadmissible, stating in an October 1972 decision that Ireland had failed to bring “substantial evidence” of the existence of an administrative practice involving official tolerance and repetition of acts causing deprivation of life contrary to Article 2. The Commission could not, therefore, deal with these deaths “unless and until it were shown, as required by Article 26, that the domestic remedies … have been exhausted”.

The United Kingdom had relied upon the findings of the Widgery Tribunal, stating that the soldiers “came under fire from unknown snipers who, endangering the lives of the soldiers, inflamed a situation which might have otherwise passed without bloodshed”. The Widgery findings, it submitted, “gave a picture of soldiers conscientiously doing their best under very difficult circumstances”. While there may have been a couple of cases “where soldiers fired without justification”, these were insufficient to amount to an administrative practice – Ireland had “not even begun to discharge their burden” of showing evidence of a pattern of killings or official tolerance.

Ireland had responded before the European Commission that the “conclusions of the Widgery report were not accepted” and that its findings were at times “in total conflict” with the material the State had presented in its submission to the Strasbourg authorities. The absence of prosecutions, Ireland argued, constituted official tolerance and acceptance by the British authorities and therefore an administrative practice involving breaches of the European Convention could be said to exist.

With dozens having been killed at the hands of State forces prior to Bloody Sunday, including many more than the sole example from Ballymurphy included in the application, the Irish government could have strengthened its submission in the first place, although equally, the Commission set a very high bar for demonstrating the existence of an “administrative practice”.

With the killings of Bloody Sunday excised from the proceedings, Ireland v. United Kingdom proceeded, albeit with continued controversy. The European Commission found in 1976 that the five techniques of in-depth interrogation applied against the so-called “hooded men” amounted to torture, but the Grand Chamber of the Court ruled in 1978 that such practices lacked the “special stigma” of torture, amounting instead to inhuman and degrading treatment, equally prohibited under Article 3. For Brice Dickson, the finding “sent a subliminal message to the UK government that it could continue to tolerate heavy-handed interrogation tactics without having to worry too much about international opprobrium”. The judgment has had a lasting and at times shameful legacy, having been cited approvingly in the infamous United States “torture memos” prepared in the aftermath of 11 September 2001. Ireland was unsuccessful it its efforts to have the European Court review the judgment following the discovery of additional evidence in 2014 relating to British policy regarding these unlawful interrogation techniques.

Ireland’s attempt to have the Strasbourg authorities address Bloody Sunday proved fruitless, and the Ireland v. United Kingdom judgment contains only the briefest and anodyne mentions of the event:

On 30 January 1972, 13 people were killed by army gunfire in the course of disorders taking place in the predominantly Catholic town of Londonderry. This incident led to a new upsurge in support for the IRA amongst the Catholic community.

It would be almost twenty years before recourse was again had to the European Court of Human Rights for Bloody Sunday. Relatives of those killed did so in 1994 as direct complainants, rather than via an inter-State complaint, following the British government’s refusal to establish a new inquiry. The application to Strasbourg came at a time of increasing cases against the United Kingdom in relation to Northern Ireland before the European Court, as well as resort to other international mechanisms, such as the UN Special Rapporteur on Summary and Arbitrary Executions.

Strasbourg again failed to accept the complaint, for procedural reasons. The European Commission concluded in the application of McDaid and others v. United Kingdom that the complaint was inadmissible as it fell outside the six-month period following the relevant “final decision” at the domestic level, in this context the Widgery Inquiry, the Royal Ulster Constabulary investigation and the inquest into the deaths on Bloody Sunday:

Insofar therefore as the applicants complain of a failure to provide an effective investigation into the circumstances of the deaths of their relatives or to commence a prosecution, they must have been aware by 21 August 1973 at the latest of the basis of their present complaint. In particular, it must have been clear to the applicants that no prosecution would be instituted and they would already have been aware of the allegedly unsatisfactory conclusion of the Widgery Report which was the official response to the events. The applicants' complaints to the Commission however were introduced on 18 August 1994, which is more than twenty years after the Inquest terminated.

The European Commission also cited its finding in Ireland v United Kingdom that insufficient evidence had been provided to show an “administrative practice” in relation to Bloody Sunday. It dismissed the argument of the applicants that the absence of prosecutions or a thorough or impartial investigation into Bloody Sunday amounted to a “continuing violation” of human rights:

While the Commission does not doubt that the events of "Bloody Sunday" continue to have serious repercussions on the applicants’ lives, this however can be said of any individual who has undergone a traumatic incident in the past. The fact that an event has significant consequences over time does not itself constitute a “continuing situation”.

The declaration of inadmissibility in 1996 effectively marked the closing off of Strasbourg as a route for accountability for the events of Bloody Sunday.

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The lack of State accountability before the European Court of Human Rights for Bloody Sunday was not an anomaly. Throughout most of the conflict, individual applications were few and only occasionally successful. The Convention itself allows for States to derogate from certain rights during times of emergency, while the Court has shown a deferential attitude towards measures taken by States under its “margin of appreciation” doctrine. It is on this basis that internment, a key issue for the marchers on 30 January 1972, was found not to be contrary to the European Convention in Ireland v. United Kingdom. While the Court became more assertive during the mid 1990s, Brice Dickson’s conclusion is that the United Kingdom had “a relatively easy ride in Strasbourg” throughout the Troubles. Not only did the Convention constitute “a blunt instrument” for most of the time, decisions of the Court may have “helped to prolong the conflict”, he concludes.

Another factor which limited the impact of human rights law was that implementation of European Convention in national legislation did not come about until the adoption of the Human Rights Act in 1998 on foot of a commitment in the Good Friday Agreement. At this time, the United Kingdom also signed the Rome Statute of the International Criminal Court which had been negotiated in July and ratified the two 1977 Additional Protocols to the 1949 Geneva Conventions. International humanitarian law was never formally applied during the conflict, despite the view of some British legal advisers that the conflict in Northern Ireland met the threshold of Common Article 3 of the 1949 Geneva Conventions at times. It is telling that this flurry of treaty-signing and legislating came after the end of the conflict.

The domestic implementation of the European Convention was not a trigger for the establishment of the Saville Inquiry by the British government in 1998.  It came about following a resurgent campaign by the families and pressure from the Irish government following revelations by Dermot Walsh of inconsistencies and alterations of the statements of the soldiers appearing before the Widgery Tribunal. The Human Rights Act did, however, have an influence on the proceedings. Soldiers were able to successfully argue that they should be granted anonymity before the Tribunal and not be obliged to give evidence in Derry because of the risk to their lives. While the rights of the paratroopers may have “trumped” those of the families, as Angela Hegarty put it, these concessions did not fatally detract from Saville’s ultimate findings.

The European Convention was also relied upon by the families of soldiers killed in Iraq in domestic proceedings taken against the Ministry of Defence arguing a breach of the United Kingdom’s Article 2 obligations resulting from the provision of substandard military equipment. Iraqi civilians who had been killed and tortured by British forces in Iraq were equally able to take proceedings in Strasbourg against the United Kingdom leading to findings not only of similar violations, but also judicial confirmation of the extraterritorial application of human rights during times of conflict. The Court has become much more robust regarding the extent of the obligation of States to conduct effective investigations into alleged unlawful killings. This partly explains the outright hostility currently being shown by the British government towards the European Court and the Human Rights Act.

Despite the advancements in European human rights law over the past two decades in the context of conflicts (and some reversals), impunity often remains. There are remarkable parallels in this respect between Bloody Sunday and British war crimes in Iraq – a line can be drawn from ‘the Bogside to Basra’. While the establishment of the Saville Inquiry allowed the truth of Bloody Sunday to be told, heard, and amplified, justice has not been done.

No soldier or officer has been prosecuted for the killings on Bloody Sunday. Bernard McGuigan, whose wife had said in April 1972 that she might take a case to the European Court of Human Rights, was one of two people that the Saville Inquiry was “sure” were killed by Lance Corporal F, and that it was “highly probable” that he was responsible for two other casualties on Bloody Sunday. Despite “Soldier F” being potentially responsible for four of the thirteen deaths, the Public Prosecution Service concluded in July 2021 that because of problems with evidence, there was no reasonable prospect of his conviction, or that of another solider also being investigated.  

In the context of Iraq, there has been a dearth of war crimes prosecutions – one corporal pleaded guilty to inhuman treatment in 2007 for the ill-treatment of civilians in Basra. A December 2020 report of the Prosecutor of the International Criminal Court found that despite there being a “reasonable basis” to believe many other war crimes such as murder, torture and rape were committed by British forces in Iraq, the relevant domestic investigative process running over ten years resulted in “not one single case being submitted for prosecution”. This, as the Prosecutor noted, has “deprived the victims of justice”.

While evidentiary problems inevitably arise with the passage of time, in relation to both Bloody Sunday and Iraq, shortcomings with the original investigations have played an enduring role. As to responsibility up the chain of command, not only have no officers been prosecuted for Bloody Sunday, the Saville Inquiry itself “insulated higher levels of the military and the state from culpability”. The Prosecutor of the International Criminal Court also observed a “paucity of cases concerning command responsibility that have resulted in referrals for prosecution” in relation to Iraq.

The European Court of Human Rights proved incapable of addressing Bloody Sunday, although it has offered an avenue of state accountability for Iraqi victims. Successive prosecutors of the International Criminal Court have, however, declined to proceed with formal investigations into British conduct in Iraq: the first did not consider the number of alleged crimes sufficiently grave, while the second, remarkably and rather meekly, concluded that despite the scale of alleged war crimes and the absence of accountability, she could not find evidence of a demonstrable intent on the part of British authorities to shield perpetrators from justice. When it comes to powerful States, the International Criminal Court demonstrates a continued and frustrating unwillingness to intervene.

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The current political climate in the United Kingdom is one which works in the service of impunity. The Overseas Operations Act 2021 includes an explicit “presumption against prosecution” for British soldiers operating outside the jurisdiction. The widely-condemned proposal in July 2021 by the British government for a statute of limitations on prosecutions in Northern Ireland would put an end to justice efforts relating to the conflict in Northern Ireland, including those concerning Bloody Sunday. There is of course a more general antipathy in the United Kingdom towards international institutions, of which Brexit is the clearest manifestation. A more assertive European Court of Human Rights has encountered the ire of the British establishment in recent years. Had the Prosecutor of the International Criminal Court decided to proceed with an investigation into British conduct in Iraq, the Court in The Hague would no doubt be targeted in the same way as its Strasbourg counterpart.

Fifty years after Bloody Sunday, victims continue to be denied justice for serious human rights violations. The denials and delays on the part of State authorities are often insufficiently countered by relevant international institutions. The European Court of Human Rights proved to be a dead end for the victims of Bloody Sunday. While the Saville Inquiry eventually ensured that the truth of 30 January 1972 was largely told, the prospects for prosecution have all but evaporated. Bloody Sunday has had an unimaginable personal toll on the families of the victims and was arguably the most politically costly incident of the Troubles. The impunity which followed has equally come at a price, including unprecedented financial costs associated with the inquiries and other legal proceedings. For some, this seems to be a price worth paying for the avoidance of accountability.

Professor Shane Darcy is the Deputy Director of the Irish Centre for Human Rights in the School of Law at the National University of Ireland Galway.