Human Rights Violations in the Irish Criminal Justice System
Harper Jean Tobin - POLT 250: International Human Rights - December 2002
Though the study of human rights is a relatively young field, and there is still much debate over the social, economic and political factors which impact human rights conditions, there is strong consensus on a few key factors thought in combination to best ensure respect for human rights. Much if not most human rights discourse revolves around these key factors, and it is generally expected that countries that have these factors will enjoy a relative absence of human rights violations (HRVs). In the Republic of Ireland all of these conditions obtain: an advanced economy (with fastest growing GDP in Europe in the late 1990s, and ranking #18 in the world in the UN‘s Human Development Index for 2002), free and fair elections, strong respect for the rule of law, a constitution guaranteeing individual rights, and an independent judiciary. While Ireland's human rights record is in many respects quite good in comparison to the rest of the world, it has often been criticized by its European neighbors for civil and political rights violations, particularly within the criminal justice system.
Thus, Ireland stands in contradiction to the conventional wisdom on human rights. This paper outlines the nature and prevalence of HRVs in the Irish criminal system, and attempts to explain their occurrence within an advanced liberal democracy. HRVs in this case, I will argue, emerge largely as a response to a unique historical context, namely ethnopolitical conflict within the Republic and in Northern Ireland. The particular structure of the Irish Constitution, domestic and international pressures on human rights will also be examined as contributing factors.
II. The Argument in Brief
While the case of the Republic Ireland in no way disproves the usual connections drawn between high levels of economic development, democracy and liberal political institutions on the one hand, and respect for human rights on the other, it does demonstrate that they are not fully sufficient conditions, but simply factors which to one degree or another mitigate against systematic human rights violations. These conditions have certainly prevented more severe abuses, such as disappearances, extrajudicial executions, extreme forms of torture, and, with the development of contemporary human rights norms, the continuation of internment without trial. At the same time, however, in the Irish case the Constitution, democratic legislature, and independent Supreme Court have also served to entrench and systematize certain human rights violations.
In this context it becomes clear that intense inter-group conflicts, especially conflicts with long histories, are a powerful independent variable which may lead states to violate human rights in the pursuit of order and stability. Democratic and liberal institutions, along with a high degree of economic development, may limit the degree and kind of human rights violations by the state in response to inter-group conflicts, but do not fully guarantee respect for human rights. What’s more, it becomes clear in examining the history of human rights in the Irish criminal system that emergency powers instituted within an otherwise liberal and rights-respecting state tend to outlast objective emergencies and degrade respect for rights in general. This last may be a particularly important insight for understanding human rights conditions in ostensibly rights-respecting nations such as our own, especially given the current US government’s enthusiasm for extraordinary anti-terrorism measures.
This is not, however, simply a case of sectarian conflict overwhelming the protective powers. The conflict actually influenced the formation of the Republic's constitutional system such that the legislature was enabled to ignore supposed rights guarantees. In this sense a key loophole in Ireland's Constitution emerges as a factor leading to HRVs; a political structure usually thought to protect human rights is shaped by ethnopolitical conflict and in turns shapes (dis)respect for human rights.
While ethnopolitical violence, and the considerable loophole it inspired in an otherwise liberal and democratic constitutional system, are sufficient to explain this pattern of HRVs, it is worth asking to what extent pro-human rights pressures on the state, domestic or international, may have effected the persistence of HRVs. In this case it appears that domestic pressure, though constant since the early 1970s, has been ineffectual. As the prospect of peace in Northern Ireland has improved, however, and especially as the UK has taken visible steps towards improving respect for human rights, pressure from Ireland's European neighbors seems to have played an increasingly important role in moving Ireland towards an improved human rights situation.
III. A Brief History of Sectarian Violence in the Irish Republic
The Irish Republic was born from the Anglo-Irish War of 1919-1921, an insurgent war against British rule. The Anglo-Irish Treaty of 1921 established a partition of Ireland into the sovereign Irish Free State (later renamed the Republic of Ireland), consisting of twenty-six Catholic-dominated counties, and the British domain of Northern Ireland, consisting of six Protestant-dominated counties in the northeast. While some continue to blame the repression and violence suffered by generations of Irish citizens on this "arbitrary" partition, L. J. MacFarlane notes that the likely alternative outcome "would have been intercommunity religious violence on a horrendous scale, as an ill-armed and ill-prepared Irish government sought to impose its rule on tens of thousands of armed Protestants determined to fight in support of their own Protestant government" (McFarlane 1990, 85).
While the elections of 1922 showed that the treaty supported by most voters within the new Free State, armed opposition to the treaty by Republicans who thought it a sell-out to Britain brought on a sixteen-month Irish Civil War. Though the Irish Republican Army declared a ceasefire in 1923, into the 1930s the IRA "carried out sporadic raids on police stations and army barracks, intimidated jurors in IRA trials and killed informers" (McFarlane 1990, 86). Fascist "Blueshirts," led by ex-army officer Eoin O'Duffy, also engaged in violent activism in this period, including street fighting with leftist groups.
Declaring itself the legitimate "Government of the Republic of Ireland," in 1938 the IRA began bombing targets in the British mainland. Most of the terrorist attacks by Republican and Unionist factions in the ensuing years took place in the Six Counties and the British mainland. When the violence in the North heated up once again in 1969, however, IRA violence once again spilled over into the Republic. Between 1969 and 1980 several gardaí (Irish police officers) were killed by the IRA, and there were a number of assassinations of Irish and British government figures. Bombings have also been directed against the Dublin government. For example, "during the second reading [of the Offenses Against the State (Amendment) Act 1972], two bombs exploded in Dublin, killing two men and injuring 127 people" (Siggins 1997, 79). Although the Republic's Protestant population is small compared to the Six Counties, Unionist attacks have occasionally taken place in the Republic, the most horrific being a coordinated series of bombings on 17 May 1974 by the Ulster Volunteer Force, killing 33 and injuring over 100 in Dublin and Monaghan. Whatever their objectives, such attacks have doubtless strengthened the political will for emergency measures.
While the Republic has been involved in all the major peace talks around Northern Ireland since that time, and at a number of moments politics in the Republic have been dominated by events in the North, since the 1970s actual terrorist violence within the Republic seems to have tapered off. Nevertheless, Dublin has remained very concerned about sectarian violence since the IRA has been known to conduct many of its operations within the Republic, with major arms caches being periodically discovered within the Republic though the eighties and nineties. The 1998 Omagh bombing (in Northern Ireland) by the dissident Real IRA was the worst single attack in the history of "the troubles," killing 27 and injuring 220; this attack -- and suggestions that Irish citizens may have been involved -- led directly to new anti-terrorist legislation in the Republic.
To summarize, Ireland has experienced ethnopolitical violence throughout the twentieth century. Although the violence has been largely concentrated in Northern Ireland since the 1930s, periodic attacks within the Republic, and IRA operations within the Republic that contribute to violence in the North, have motivated the Irish state to take strong steps against this violence -- even if this means violating human rights.
IV. The Irish Constitutional System
The Constitution of 1937 -- largely a continuation of the original 1922 constitution -- established Ireland as a sovereign democratic state with a separation of powers between the executive (President), the bicameral legislature (Seanad Éireann and Dá il Éireann, or Senate and House), and an independent judiciary (headed by the Supreme Court). Articles 40-44 of the Constitution guarantee a number of "Fundamental Rights," including: personal liberty and security; freedom of speech, assembly, association and religion; education; equality before the law; private property; due process; freedom from unlawful detention and unlawful searches; habeus corpus; and a number of family rights. Since the 1960s, the Supreme Court has delineated a number of unenumerated rights implicit in the Constitution, such as the right to bodily integrity and to free movement (Ryan v. Attorney General, discussed in Bacik 2001, 25-6), the right of accused persons to legal assistance (State (Healy) v. Donoghue, cited in Flynn 1997, 180) and the right to privacy (Kennedy & Arnold v Ireland, cited in McGonagle 1996, Ch. 5).
According to article 15, Section 4 of the Constitution:
The Oireachtas [Parliament] shall not enact any law which is in any respect repugnant to this Constitution or any provision thereof. Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.
While the above aspects of the Constitution highlight its similarity to the political structures of other, older Western nations, there are crucial differences, telltale signs of a state born of ethnopolitical conflict. The most significant of these is Article 28, Section 3 of the Constitution, which states as follows:
Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law.
Irish stateswoman and human rights advocate Mary Robinson (of whom, more later) has rightly pointed to the significance of Article 23.3 for the human rights situation. This clause is the loophole that allows the legislature and the courts to effectively ignore constitutional guarantees of "Fundamental Rights" in the administration of criminal justice by "exclud[ing] judicial review of emergency legislation enacted while there is a resolution of the Oireachtas declaring a state of national emergency. The problem is that a State of Emergency has existed for practically the entire period of the 1937 Constitution!" (Robinson 1980, 56). While written constitutions are thought to protect against HRVs by limiting the powers of the legislature and the executive, this clause allows the legislature to decide when to follow those limits. As we shall see, they have indeed chosen not to follow them almost from the start, at least where it regards state responses to ethnopolitical violence.
Finally, the Constitution sets out a dualist approach to international agreements as the latter apply to internal matters, which will also prove significant. Article 29, Section 3 states that "No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas." In other words:
Whereas in many civil law countries which have adopted a monist system, international human rights treaties are automatically incorporated into domestic law, in Ireland, it rests with the Oireachtas ... to determine whether a treaty shall form part of Irish law. (Byrne 2001)
This means that those international agreements to which Ireland is a party, but which have not been made law by the Oireachtas, have no force in domestic law. While the Oireachtas has enacted a number of international agreements, ranging from the Treaty of European Union to the Geneva Conventions on Prisoners of War and the UN Convention on Genocide, it has not yet incorporated the European Convention on Human Rights.
V. The Emergency Measures
In response to ethnopolitical conflict, and within the framework of the above-explicated political structures, the Irish state has since its inception adopted policies prioritizing the maintenance of order over certain human rights. These measures were initially framed by a situation of civil war with their objects being military combatants, but subsequently became part of the criminal justice system.
Exceptional measures during the Civil War included "invoking the right to try before an army court, and if necessary to execute, persons found in unauthorised possession of arms or ammunition" and interning without trial perhaps 15,000 individuals in the course of the conflict and its aftermath (McFarlane 1990, 85). Dublin responded to another escalation of Republican violence in 1931 by banning twelve organizations and reinstituting military courts. While these unpopular measures were reversed by President Eamon de Valera in 1932, street violence by Republicans on the left and the fascist "Blueshirts" on the right prompted the resurrection of the Special Powers Tribunal, which lasted until the new Constitution of 1937.
Anxious to preserve friendly relations with Britain on the eve of World War II (in which Ireland was to be staunchly neutral) and in the wake of the IRA bombing campaign in England, de Valera pushed through the first emergency powers act under the current Constitution, the long shadow of which remains to this day. The Offenses Against the State Act (OAS) of 1939 once again banned the IRA, and reinstated the emergency measures of previous years. As the Irish Council for Civil Liberties put it:
Some elements of the OAS Acts are in operation at all times while others require a Government proclamation to bring them into effect. The most important of this latter category of powers are contained in Part V of the 1939 Act and Part II of the OAS Amendment Act, 1940 and provide for the creation of a Special Criminal Court and for detention without trial (internment). Both of these provisions were in force for the duration of the Second World War and were activated again in the late 1950's and early 1960's to deal with a further IRA campaign around the border with Northern Ireland. (ICCL 2002)
The first State of Emergency was declared by the Oireachtas shortly after passage of the OAS Act, and after amending the Constitution's definition of "war or armed rebellion" to include a war between other states (i.e. World War II). This meant that courts could not invalidate any acts of the Oireachtas which violated Fundamental Rights guaranteed in the Constitution, so long as they were intended to ensure public order. This State of Emergency remained in place for 47 years, only to be immediately replaced in 1976 by a new Oireachtas resolution that "arising out of the armed conflicts now taking place in Northern Ireland, a National Emergency exists affecting the vital interests of the State" (cited in McFarlane 1990, 87); this State of Emergency remained in effect until 1995. At that time the Emergency Powers Act was also passed, which extended police powers further, extending the period garda could detain individuals in custody from 48 hours to seven days. Likewise, the Special Criminal Court was again revived by the Offenses Against the State (Amendment) Act of 1972, now administered by a three-judge panel, without a jury. "Due to the negative reaction to internment in Northern Ireland, it was not thought possible to invoke that element of the OAS Acts at the time" (ICCL 2002).
The Drug Trafficking Act of 1996 signified the expansion of exceptional police powers from terrorist offenses to ordinary crime. Despite paramilitary ceasefires in the 1990s, the emergency measures were neither eliminated nor reviewed. In the wake of the Omagh bombing, wider emergency powers were created by the Offenses Against the State (Amendment) Act of 1998.
While the formal end of the State of Emergency in 1995 ought to remove any justification for any of these “emergency” measures, this appears to have been largely a symbolic move, “partly designed to encourage the British Government to dismantle emergency legislation in the North” (ICCL 1995), and there has been no apparent loosening of emergency measures as a result.
VI. Human Rights Violations
As noted above, internment without trial was widely used, primarily against suspect IRA agents, during the Civil War, World War II, and during the IRA bombing campaign of the late fifties and early sixties. To give an idea of the scale of internment, between 1957 and 1959 over 200 individuals were detained without trial (McFarlane 1990, 91). As noted by Mark Findlay, with the renewal of sectarian violence in the early seventies, the government (as in the North) turned from the strategy of internment to "criminalization," crafting exceptional procedures to process terrorist suspects through the criminal courts. While suspects were longer be detained indefinitely without trial, persons could still be held without charge for a day or two. This period was briefly lengthened to seven days under the Emergency Powers Act of 1976, and the OAS (Amendment) Act of 1998 once again extended the period to 72 hours. In relation to drug offenses, however, the Drug Trafficking Act once again set the upper limit at 168 hours. The UN Human Rights Committee also reported with concern in 2000 "that persons may be arrested on suspicion of being about to commit an offence, and that the majority of persons arrested are never charged with an offence" (UNHRC 2000, 15).
To make matters worse, "under the current restrictive system, a proper legal defense [cannot] not be ensured for many persons" (UNHRC 1993, 13). Persons suspected of terrorist activities, or suspected of having information related to terrorist activities, seldom have access to legal assistance -- certainly the state has not provided legal aid -- and have been explicitly denied access to counsel during questioning. The Supreme Court has ruled “that while an accused held in garda custody has to the right of access to a solicitor before being interviewed by the police, there is no right to have a solicitor present during the interview itself” (Bacik 2001, 19).
Closely related to the right to legal counsel is the right to silence. "During their detention and interrogation, suspects may have to decide whether to exercise their right to silence; and this decision may be used in proceedings against them" (AI Briefing to UNHRC 2000). Irish criminal practice has routinely contravened the right to silence. An individual's failure to comply with a demand of a police officer for "a full account of such person's movements and actions during any specified period and all information and all information in his possession in relation to the commission or intended commission of any offence" specified under the OAS 1939 is a crime punishable by up to six months' imprisonment (McFarlane 1990, 93). In addition to punishing silence itself, authorities are permitted to draw incriminating inferences from silence -- for example, the opinion of a senior police officer, potentially based on little more than a suspect's silence, is considered sufficient evidence to charge a person with membership of an illegal organization. Irish criminal law expert Ivana Bacik reports that “the Irish courts have in the past almost invariably upheld statutory provisions restricting” the right to silence (Bacik 2001, 19).
Over the years human rights organizations have noted many reports of ill treatment of persons detained by the police; such reports prompted Amnesty International's first mission to Ireland in 1977, during which they found twenty-eight cases where reports of detainees matched up with medical evidence of maltreatment.
Allegations common to every case examined are that the victims were at various times beaten and punched...; knocked or thrown against walls or furniture; kneed in the stomach and kicked. It is also commonly alleged that victims were pulled or swung by the hair; had their arms twisted behind their backs while they were punched; were spread-eagled against a wall and had their legs kicked apart so that they fell to the ground. In five cases detained persons alleged they were beaten with objects ... In a number of cases suspects allege that they were deprived of sleep, food and drink throughout the interrogation. ... There is evidence that the type of interrogation methods described were undertaken in order to induce arrested persons to make incriminating statements or confessions. (AI report cited in McFarlane 1990, 97-8)
Again in 1984 Amnesty International was moved to write to the Minister of Justice, urging an independent inquiry into allegations in Portlaoise Prison, "including an allegation that on 30 October 1983 prison warders beat about 80 prisoners, some of whom required hospital treatment" (McFarlane 1990, 99). The European Committee for the Prevention of Torture found in its 1993 and 1998 visits that "great majority of prison officers were attempting to deal in a humane manner with the prisoners in their charge" (CPT 1998, 129). Despite the establishment of a complaints board by the 1986 Garda Síochána (Complaints) Act, however, the CPT also found that
A significant number of those interviewed [who had been in police custody] alleged that they had been physically ill-treated by members of the Garda Síochána [police force]. ... [T]hose allegations tended to be consistent as regards the forms of ill-treatment involved (namely, slaps, punches, kicks and/or blows with batons). The persistence of such allegations regarding the use of excessive force by police officers highlights the need for the Irish authorities to remain particularly vigilant in this area. (CPT 1998, 124)
The Government responded to this report with vague promises of improvement without a specific plan or timeline, and further outraged human rights activities by noting that "[Garda] staff associations suggest that special legislative provision be made to render the making of malicious complaints an overt criminal offence" (Response to CPT 1998, 26). NGOs have also noted with concern fatal shootings by Garda in 1997, 1998 and 2000; as with other complaints against the police, NGOs were especially "concerned about the investigations into disputed killings because they consist of police officers investigating actions taken by other police officers" (AI 2000).
Finally, the irregular procedures of the Special Criminal Courts have been a special item of concern for human rights organizations over the years. The regular occurrence of non-jury trials is enough to raise concern in a justice system supposedly premised on trial by jury. While provisions allowing the government to appoint judges to the SCC regardless of legal training, to leave their pay to the discretion of the Finance Minister, and to terminate them at will have not been used for many years, that they are still on the books is cause for alarm. Of more material concern have been allegations of systematic bias of the Courts toward prosecutors. For example, in 1977 Amnesty International
expressed its concern at evidence which suggested the Special Criminal Courts were not strictly abiding by the requirement that, where any question is raised as to the admissibility of statements alleged by the defence to have been obtained through maltreatment or threats, the onus is on the prosecution to establish that the statement was given voluntarily, not on the defence to show it was involuntarily made. (McFarlane 1990, 95)
As early as 1974 there were complaints that the Special Criminal Courts were beginning to take on ordinary criminal cases, as opposed to the terrorist cases for which they were created. Indeed, the law allows the Director of Public Prosecutions to certify any case for an SCC trial, without providing a reason, "in effect creating a permanent two-tier justice system without an explicit rationale" (Amnesty International 1999). The Irish Council for Civil Liberties has noted cases of arson, armed robbery, drug trafficking, and auto theft brought to SCC in recent years. Despite a steady stream of recommendations from human rights bodies to disestablish it, "the Court now appears to be coming entrenched within the accepted panoply of judicial institutions in the Republic" (Findlay 1985, 6).
VII. Internal Pressure on Human Rights
While in general the domestic response to human rights violations in the criminal system appears to have been supportive or quiescent, there have been consistent sources of protest -- namely members of the Republican movement and a small but persistent civil liberties movement, spearheaded by the Irish Council for Civil Liberties. Mary Robinson, President from 1990-97 and United Nations High Commissioner on Human Rights from 1997-2002, was the first to bring attention to human rights issues in Ireland in the 1970s, when she served in the Seanad Éireann. Her efforts included attempting to amend the OAS (Amendment) Act of 1972 so that it would have to be renewed in 90 days. According to biographer Lorna Siggins, she told the Irish Times that not only had the bill been rushed too quickly through the legislature, but that in her opinion "it was now clear that the panic [behind the bill] had been engineered" (Siggins 1997, 79). Two years later, giving a public lecture on the Special Criminal Court, she was probably the first to draw attention to that institution's application in ordinary criminal cases. In 1976, Robinson co-founded the Irish Council for Civil Liberties -- which then and now focuses largely on criminal justice issues -- and served as its first Secretary. The ICCL continues lobbying against emergency legislation today, the core of their argument being that (especially with the State of Emergency formally ended in 1995), the situation in the Republic no longer justifies emergency measures which violate Fundamental Rights guaranteed in the Irish Constitution.
While writers on human rights in the Irish justice system frequently mention Robinson's advocacy on human rights violations in this area, biographies of Robinson give little attention to her activism on these issues, and in her seven-year Presidency -- while prioritizing human rights-related diplomatic missions, refugee issues and the rights of women -- she made no major moves efforts to combat rights violations in the criminal system. All of this suggests that the latter is not a high priority for the Irish public, and perhaps even that her liberal views on these issues are not very popular in Ireland.
VIII. External Pressure on Human Rights; the European Convention
Ireland was one of the ten original parties to the European Convention on Human Rights, ratifying it in 1953. Despite being "an enthusiastic supporter of the European Convention at its inception," relates the newly formed Irish Human Rights Commission, "somewhere along the way we ceased to be in the forefront of countries committed to the Convention" (IHRC 2002). Ireland has yet to ratify the Seventh Protocol to the Convention, which guarantees the right to an appeal, freedom from double jeopardy, and compensation for wrongful conviction (along with equality between spouses and protections for aliens). Owing to the constitutional doctrine of dualism explained above, the Convention has no force in domestic law. With the UK's passage of the Human Rights Act of 1998, the Republic of Ireland is now the only Council of Europe member that has not incorporated the Convention into domestic law, and has come under increasing international pressure to do so.
Having become so isolated within the Council of Europe so shortly after assuming Presidency of the Council in 1999, Ireland has given indications that it will improve its human rights record. The Department of Foreign Affairs issued a press release stating that "In the run-up to its Presidency, Ireland has been taking a fresh look at its stance on a number of important Council of Europe conventions and agreements," and specifically mentioning the government's intention to ratify the Seventh Protocol (Department of Foreign Affairs 1999). The introduction of the European Convention on Human Rights Bill of 2001 signifies the emergence of a new dialogue within Ireland about how, rather than whether, the ECHR will be incorporated.
The Republic does accept the jurisdiction of the European Court of Human Rights, and on a few occasions has been challenged there for rights violations in the justice system. The first case against Ireland in the European Court was In re O Lá ighlé is in 1957, in which an individual detained without charge for nearly five months on suspicion of IRA involvement alleged violations of his rights to liberty, freedom from retroactive penalty and a fair trial. The Court found that the latter two complaints did not apply in the absence of a formal charge, and the Irish government avoided a judgment against it by derogating from the Convention on the matter of liberty rights on the grounds of a state of emergency. Subsequent applications against Ireland in the Court have had mostly to do with family and privacy issues, as well as involuntary psychiatric commitment.
While European Court decisions presently have no effect on Irish law and are largely ignored by Irish jurists, two recent cases, both decided on 21 December 2000, may have increased the pressure felt by the government. In them, the Court found Ireland in violation of the Convention for convicting three men of failing to answer questions asked them by gardaí . "Although [the relevant section of the OAS Act of 1939] had been upheld as constitutional by the Irish Supreme Court, the European Court found that it imposed a 'degree of compulsion' upon [the] applicants which, in effect, 'destroyed the very essence' of their right to remain silent" (Bacik 2001, 15-6).
While the greater relative severity of the human rights situation in Northern Ireland may have taken much of the heat off of the Republic in previous decades (see discussion below), the Republic's involvement in recent years in peace negotiations where human rights norms have played a quite significant role may be a deciding factor in improving Ireland's human rights situation. The Good Friday Agreement, signed by the united Kingdom and the Republic of Ireland in 1998, included certain commitments by both parties to pursuing human rights harmonization with Europe. It was under Good Friday that the Republic first agreed to reconsider incorporation of the ECHR. Another product of the Agreement was the formation of a national Human Rights Commission. According to Rosemary Byrne, it is expected that this Commission
will transform the model for rights protection in Ireland....Broadly, it should submit to the government, parliament and any other competent body, on an advisory basis either at the request of the authorities concerned or through the exercise of its power, opinions, recommendations, proposals and reports on any matters concerning the protection and promotion of human rights. More specifically, it shall ensure that any legislative or administrative provisions are harmonized with international human rights standards and shall recommend the adoption of new legislation, the amendment of legislation in force and the adoption or amendment of administrative measures in order to give effective realization of fundamental rights and freedoms. (Bryne 2001, 24-5)
While incorporation of the ECHR will largely serve to guarantee rights not mentioned in the Irish Constitution, it is the Commission which may rein in the state's violations of rights that are in the Constitution but which have heretofore been systematically ignored, which is largely what is at issue in the justice system.
IX. The Republic and Northern Ireland Compared
If the Irish Republic has been an outsider in the Council of Europe on human rights, and was taken to the European Court as early as 1957, why has the government of Ireland only recently responded to European pressures on human rights issues in criminal justice? One explanatory factor is the presence of more widespread and severe HRVs in criminal justice in Northern Ireland; to put it simply, the seemingly more pressing issue of human rights in the North meant that the Irish government got off relatively easy in terms of pressure from Europe until the late 1990s.
Since the IRA's main political target is British rule in the Six Counties, and since there is very little militant Unionist presence within the Republic, most acts of ethnopolitical violence in recent decades have taken place in Northern Ireland (or in mainland England). Given this, and given the absence in the United Kingdom of a written constitution with human rights guarantees, it is unsurprising that, for example, more people have been detained without charge and for longer periods in the Six Counties; internment was in fact revived in the North in 1971, while the Irish government has eschewed this policy ever since the late 1950s. Similarly, torture, police violence on the streets, denial of legal representation and the like have been more widespread in the North.
One effect of this relative difference in HRVs was that, while the Republic received some pressure, primarily through the European Court, it got off easy compared with the United Kingdom. My own research proved difficult because there has been so much more written over the years on HRVs in criminal justice in the Six Counties than on those in the Republic. The ever first interstate petition in the European Court was brought by Ireland, against the United Kingdom in 1971, and this successful case helped focus attention on Britain, even though the abuses alleged in the case (excessive arrest powers, torture and inhumane treatment of detainees) were also going on in the Republic. Thus it has only been in recent years, with paramilitary ceasefires, the Good Friday Agreement, and the UK's Human Rights Act, that Ireland has taken center stage as Western Europe's human rights outsider.
The history of sectarian violence in Ireland, continued IRA operations and periodic attacks within the Republic, and concern for containing the violence in Northern Ireland have motivated extraordinary security and legal measures in the Republic of Ireland which violate human rights. In the face of this lasting conflict, high levels of economic and human development, democracy governance and liberal political structures have not been enough to fully guarantee rule-consistent behavior in the area of criminal justice. Rather, the democratic and ostensibly liberal political system (the Constitution, the Oireachtas, the judiciary) has entrenched human rights violations in this area as a "normal" part of government. Instead of being repealed with the apparent ebbing of threats to public safety in the Republic since the 1970s, moreover, emergency measures have become institutionally entrenched. In keeping with conventional theories about democracy, liberalism and human rights, the Constitutional structure and the long legacy of the rule of law in Ireland seems largely to have limited the kind and degree of human rights violations that could become regularized. While domestic pressures on the government on these issues have been weak, pressure from Ireland's European neighbors, especially during Ireland's participation in peace negotiations in the late 1990s, seems also to have played a significant role in improving the human rights situation.
The case of the Irish Republic, then, seems to present valuable lessons about human rights within economically advanced, democratic nations. First, it suggests that prosperity, democracy, and liberal political structures are not enough: history weighs heavily upon nations and can, to a limited extent, trump these celebrated variables. In fact, the formation of Ireland's political structure was shaped by ethnopolitical conflict such that it allowed HRVs even while seeming to guarantee fundamental rights. Ireland also demonstrates, then, analysis of human rights conditions requires attention to the content as well as the mere existence of democratic and liberal structures; a written constitution is not enough if in its content it is self-defeating as a guarantor of rights.
A related lesson concerns the emergency measures which many states (the UN counted 87 between 1985 and 1995; UNESC 1995) embrace in the name of restoring order. Emergency measures which compromise or abrogate rights which are otherwise guaranteed by the state, it seems, tend to outlast the unusual circumstances for which they were created, normalizing human rights violations. One British MP summed up this process in the context of Northern Ireland:
The frequent use of emergency powers to cope with crises, coupled with the successes of these powers, acclimates administrators to their use, and makes recourse to them in the future, all the easier. The danger is, that succeeding generations of administrators will inherit these powers as being efficient and unobjectionable, and in a particular emergency, do not give proper consideration to the possibility of less drastic measures being used. In addition, social attitudes develop so as to accept recourse to emergency measures as the norm and over time there grows an insensitivity to the human rights problems that are inevitably associated with public emergencies. (O'Boyle 1977, quoted in Robinson 1980, 62-3)
This certainly describes the situation in the Republic as well, and well explains the spillover of emergency measures into common criminal justice.
Great caution should be exercised in embracing such measures. At the least, provisions should be included requiring review of emergency measures on a definite timetable. In the Irish case, however, such limits might not have overcome the political will to continue emergency measures, as the government proved quite ready in 1998 to reinstate draconian measures originally implemented in the 1970s in the wake of a single, exceptional violent incident in the North.
Finally, the Irish Republic in recent years has exemplified the extraordinary responsiveness of nations which consider themselves to be members of the liberal, democratic West to the pressures of other Western nations on human rights issues. This seems to back up the assertion of Risse and Sikkink (1999) that state identities -- and particularly the desire of some states to be seen, or to continue to be seen, as "civilized" ones -- have a certain power of their own in determining domestic practices.
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