Earlier this week I spoke at the MacGill Summer School on a session about justice reform. The other speakers on the panel were Minister for Justice Frances Fitzgerald (speech available here) and Conor Brady, former GSOC Commissioner and historian of an Garda Síochána. The focus of my talk was one of the particular elements of reform of policing which I believe is paramount to achieving real change: depoliticisation. I argued that the idea of policing authority is one which could radically contribute to that but that the way it has been drafted will not enable that because it prolongs a position where Government maintains substantial control over policing. The following is part of the paper and you can read the complete version here. You can also watch the full session, including the questions and answers here. 

The 2005 Act legislatively enshrined the Commissioner?s accountability to the Minister, and it gave the government the power to demand any document relating to any investigation. The governance system of the police in Ireland makes it possible for any of the above forms of political interference to occur. Government has the legislative power to exercise both passive and active control over policing. Added to this, we know little about how and when these powers are exercised because it happens behind closed doors, evidenced by the fact that a Commission is required to establish the circumstances of Commissioner Callinan?s departure.

De-politicised Policing?

A Policing Authority which assumes governance responsibilities for policing could disrupt that pattern of influence. It could assist in depoliticising policing and in making its governance more open and transparent. It would provide a form of separation of powers.

The original heads of the Policing Authority Bill were encouraging in this regard. That version transferred many key government powers to the Authority, including holding the Commissioner to account, ensuring Garda resources were used to ?maintain the highest levels of efficiency and effectiveness? as well as monitoring garda compliance with human rights. Unfortunately, by the time the Bill was presented to the Seanad these powerful sections had been deleted. Rather than achieving de-politicisation and a necessary separation of powers over policing, we instead will get an added layer of bureaucracy, something which serves only to make the governance of policing more unwieldy and complicated.

How does the proposed legislation maintain political control of policing? The following is a list of all the powers retained by either the Minister or the Government over policing. Many of these can be individually justified, but I want to consider the totality of these, to demonstrate the scale of control which remains centrally vested:

• The Commissioner and Deputy Commissioner will be appointed and removed by government;
• The Commissioner is accountable to Government (it has been stated that the Commissioner will remain accountable to government on matters of national security but, respectfully, that?s not accurate. The original provision on accountability is not altered: the Commissioner will remain accountable to the Minister for the performance of the Commissioner?s functions and those of the Garda Síochána.[1] This concerns all aspects of policing, not just national security);
• Policing plans, policing strategies and priorities must be confirmed by government;
• Security priorities will be set by government;
• Budget is determined by government;
• The Minister can demand any documents of an Garda Síochána;
• The Minister can issue written directives to an Garda Síochána, and to the Authority;
• CCTV schemes must be approved by Minister;
• Ministerial consent is required for GSOC to investigate the Commissioner;
• The Minister decides the number of senior rank positions;
• The Minister consents to the number of civilian staff, the appointment of members to the Audit Committee, the appointment of the CEO of the Authority;
• The Minister decides what constitutes state security (if we have a legislative definition, surely interpretation of that definition is a judicial, not an executive, function?)
• Government consent is required for gardaí to work with a police service in another state;
• The Minister authorises delegation of the Commissioner?s functions to the Deputy Commissioner;
• The Minister can appoint someone to inquire into any aspect of policing; and
• Statistical information on crime compiled by an Garda Síochána is to go to the Minister (and not the Authority).

It is the combination of these factors which is problematic: the sum total is a situation where the government continues to have too much control over policing.

What powers, then, is the government relinquishing? Government will no longer:

• be involved in appointment of lower ranks;
• have a stronghold over appointment at the higher ranks;
• be involved in the dismissal of gardaí or in the Garda reserve;
• be required to publish a code of ethics (the 2005 Act required the Minister to do this, but it was never done);
• receive the 3 year review report or reports from the Garda Professional Services Unit; or
• have a role in Joint Policing Committees.

There are, of course, additional functions which the Authority will have, like holding public meetings with the Commissioner, but these are added elements to the governance of an Garda Síochána. The Minister and Government will continue to have effective control over policing in Ireland.

Why maintain the stronghold?

The reason cited by government for the turnaround on powers transferred to the Authority, is Article 28.2 of the Constitution: ?The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.?

I don?t have time to explore the complexity of this provision but I?ll make some brief points, in the hope of beginning that very necessary conversation.

Only a small number of matters are explicitly stated in the Constitution to be executive functions but the courts have agreed there are other implicit executive powers.[2] There?s little case law to aid this interpretation, very little of which specifically discusses policing. So whether or not, or the extent to which, policing falls within art 28 is unclear.

Examination of the legal status of both individual gardaí and the Commissioner presents problems for fitting their functions within Art 28. The fact that individual gardaí have wide and discretionary powers to interfere with constitutional rights, and that they can?t be directed on when or if they should use those powers, seems to be me to be incompatible with a claim that theirs is an executive function. The function of the Commissioner is defined as ?to direct and control an Garda Síochána and to advise the Minister on policing and security matters.?[3] Ministers have repeatedly declined to accept responsibility for decisions of the Commissioner, as policies and practices are for the Commissioner to decide.[4] The Minister?s role is to hold the Commissioner to account for doing these jobs, not to have a hand in how they do them. Again, that is a powerful role in itself which is also not compatible with the characterisation as an implicit executive function under article 28.

Given the legal status of both the Commissioner and individual gardaí it is difficult to conclude that policing is an executive function. What we perhaps can agree on is that the security of the State is an executive function.[5] In debates in the Seanad this has been the argument made by Minister Fitzgerald and Minister O?Riordáin, that because an Garda Síochána is the security service of the State then it?s work falls within article 28. But even if we accept that national security is an executive matter, it doesn?t follow that every single one of the controls which Government seeks to retain is an executive function. Immigration is an executive function but that doesn?t mean that all the relevant controls and powers are exercised by Government.

We need, to my mind, to tease out more clearly the implications for police governance, of classifying state security as an executive function. I don?t believe, for instance, that it automatically holds that because national security is an executive function, policing strategies can only be approved by government. This is a complex extension of a constitutional provision and it?s certainly one that should be explored very carefully before being used to prevent the de-politicisation of policing.

What are the options?

Even if we do accept the executive status of state security, what is being proposed is not necessarily the only option. A number of possibilities exist:

1. The Government could publish the AG?s advice and engage in a full debate about this.
2. The Government could be less cautious, enact what it had originally proposed, and let the courts determine the constitutionality of those provisions.
3. The plans for policing and state security could be separated. Some separation has already been proposed, in terms of the setting of policing and security priorities.
4. What if there were elected politicians on the authority? Would it be easier to delegate the executive function if TDs were exercising these powers, in conjunction with independent members? The all independent panel model which has been adopted replicates the Scottish model. But Police Scotland is not normally heralded as a prime example of good police governance and accountability. And yes, I appreciate that this would reinject politicians into the process when I?m arguing for de-politicisation, but it would be more open and transparent and it would enable delegating those powers from government.
5. If none of those seem viable we must question whether it is time to separate national security from an Garda Síochána. This is a development which I have resisted, believing that it will create an even more secretive, less accountable force to enforce the most intrusive state powers. That said, if none of the other options are possible then it may be time to accept that this is the lesser of two evils.

Conclusion

If the Policing Authority legislation is enacted as it stands it will not be able to contribute to any substantive reform of policing in Ireland. It will instead represent another layer of bureaucracy, another body to discuss policing while the Minister and the Commissioner retain all core power over policing. It will not break the cycle we have found ourselves in of scandal, reform, scandal. We should, I feel, be very concerned at untested constitutional arguments being used as the reason for this limited reform. These are not, to my mind, the kind of changes to laws that will lead to changes in culture and changes in lived experiences. These are not the kind of changes which will give those who feel let down, or even victimised, by the criminal justice system, confidence that others will not have such experiences. That should worry us; it worries me.

[1] S.26, Garda Síochána Act 2005

[2] See Murphy v Dublin Corporation [1972] IR 215

[3] S.26 Garda Síochána Act 2005.

[4] Walsh, The Irish Police (1999), Chapter 5.

[5] Case law on immigration would support this conclusion.

On 15 July, 2015, Ireland became the final European Union Member State to enact legal gender recognition. As has been noted on this blog many times (e.g. here, here and here), under current Irish law, persons living in this jurisdiction do not have any mechanism ? statutory, administrative or judicial ? for amending their birth certificate and obtaining state acknowledgment of their preferred gender. More than 20 years after Dr Lydia Foy first requested recognition, 13 years after the European Court of Human Rights declared that recognition was a Convention Right and eight years after the Irish High Court found the State in violation of its international obligations, the Irish Parliament has finally created a legal structure which will acknowledge the existence and dignity of trans persons.

The Gender Recognition Act 2015 has travelled a long way to reach its current format and structure (and, as discussed below, there is still significant progress to be made). When the Gender Recognition Advisory Group ? a consultative panel established to advise the Government on legislating for recognition ? announced its recommendations, the proposed legislation still retained references to surgical interventions, lived-experience, ?gender identity disorder? and gender panels. Delivered in 2011, by an advisory body with no trans members, the ?GRAG? report appeared at a time when advocates were increasingly applying human rights standards to legal gender recognition. Its highly medicalised recommendations were not only out of step with international best practice, but also failed to engage, in any meaningful way, with the lived-experience of Ireland?s trans community. Amendments, additions and omissions have characterised the legislative process in the intervening years. Surgery and diagnosis were removed, but medical supervision ? in the form of a controversial ?physicians statement requirement? ? remained frustratingly present until earlier this year. The particular situations of married couples and young people have been a source of intense debate. To differing extents, these issues remain unresolved, as do concerns relating to non-binary recognition, intersex persons, gender-specific crimes and the status of trans parents.

Due credit in passing the Gender Recognition Act 2015 must be offered to the two Government ministers, Tanaiste Joan Burton and Kevin Humphreys, who have had responsibility for legal gender recognition since assuming office. In the space of four years, they have achieved what successive Irish Governments failed to do: acknowledge that Ireland?s trans community exists. Both ministers have also come a long way in their own personal understandings of trans issues, and received a warm welcome at Trans Pride in Dublin earlier in the summer. However, the Gender Recognition Act 2015 is, in truth, a testament to the incredible work of Ireland?s vibrant, engaged trans community and their allies (TDs, political groupings, NGO-based groups, and members of the public). Committed, dedicated and strategic advocacy over the past four years has managed to transform GRAG?s recommendations into the progressive legislation enacted on 15 July. While often subject to lurid, highly offensive commentary, the Irish trans community has retained a focused, dignified drive in working to achieve recognition of its membership. This drive has been epitomised by the legal fights waged by Dr Foy. Her courage and resilience has inspired advocates for reform, and rightly won her the European Citizen?s Prize 2015.

As noted, from a comparative prospective, the Gender Recognition Act 2015 is highly progressive. Transgender Equality Network Ireland (TENI) observes that Ireland is only the fourth country in the world (after Argentina, Denmark and Malta) to pass legislation which allows trans persons to obtain recognition on the basis of ?self-determination.? Once the new legislation comes into force, trans people will be able to apply for legal recognition based solely on their ?settled and solemn intention of living in the preferred gender for the rest? of their lives. Instead of having to show that they have undergone surgery, sterilisation, have a diagnosis or are supported by doctors, applicants for recognition need only confirm that they understand ?the consequences of the application? and are seeking state acknowledgement of their own ?free will.?

The movement away from the physician?s statement model – announced by the Government after the marriage equality referendum ? is extremely important both in practical and symbolic terms. From a practical point of view, it means that trans people, in order to obtain recognition, do not have to rely upon the notoriously difficult healthcare pathways in Ireland. Anecdotal evidence regarding access to gender confirmation treatments in Ireland means that, with a requirement to obtain support from a ?primary medical practitioner?, applicants for recognition would likely have faced a waiting period of months, possibly years. In addition, as recognised in numerous EU-wide reports, a significant section of the trans community cannot access even basic healthcare services. Thus, medicalising legal gender recognition ? even through medical supervision clauses ? would have had the effect of removing enjoyment of recognition from a significant proportion of Ireland?s trans population. However, perhaps more fundamental, a self-determination model respects the autonomy and dignity of applicants for recognition. It acknowledges that trans persons should be the arbiters of their own identity. Living and experiencing their gender, applicants for recognition are best placed to identify their true self. They should not be subject to arbitrary or discriminatory medical assessments.

The scheme (not the current text) of the Gender Recognition Act 2015 is notable for its removal of forced divorce. Under the initial, pre-referendum proposals, trans persons were required to be single or divorced in order to obtain recognition. The stated aim was to avoid unconstitutional marriages. While many people have challenged this historical view of Ireland?s constitution, the Government?s actions were supported by legal advice and thus remained in place. However, following the marriage equality referendum, the forced divorce requirement is no longer an imperative and thus the aim was to remove those conditions completely. However, as the referendum is now subject to legal challenge, the forced divorce requirement has been initially retained. The Government has committed to removing the requirement as part of the enacting legislation for marriage equality. This move has huge significance. It means that trans persons, who remain in a marriage that they do not want to dissolve, are able to maintain and protect the integrity of their legal family.

Of course, the Gender Recognition Act 2014 is certainly not without critique. A major omission is young trans individuals. As noted previously (here and here), trans children and adolescents are not adequately provided for in the new legislation. People under 16 years are completely excluded. Their lives and identities are erased from Irish law. Individuals aged 16 and 17 years are nominally included. However, the legal process for seeking recognition is so onerous ? two doctors, parental consent and a court order ? that few, if any, applicants will obtain recognition before the age of majority. The negative consequences of excluding children from recognition ? mental health concerns, denial of services, peer bullying and violence ? are clear and well-known. Yet, so far, the Government has shown little willingness to move.

One light of hope is a promised review in two years time. This will be an opportunity to illustrate the need for increased recognition. It is unclear, however, what the Government believes that it will learn in 24 months time that it cannot already now discover. Numerous young people have spoken openly about their experiences in a legal environment which has no obligation to recognise their true identity. By 2017, an increasing number of States ? Norway, Sweden etc ? will have allowed children to access recognition. Yet, these countries have already announced their intention to do so and, in some cases, have already published the specific legislation to be enacted. Yesterday, the same day that the Government enshrined the second class status of trans children, the first Trans Youth Forum took place in Dublin. It was an incredible example of the vibrancy and resilience among trans youth in Ireland. Yet, the stories told also reinforced understandings about the real difficulties which trans young people face, and the links which exist between discrimination and the absence of recognition in this country.

The Gender Recognition Act 2015 also fails intersex persons and individuals who do not fall within traditional gender binaries. Although the legislation is intended to cover intersex people (and hopefully will be interpreted as such) the lack of express reference to intersex and the specific mechanisms of the Act may place legal acknowledgement out of reach for many intersex applicants. In addition, an increasing number of Ireland?s trans community identify outside male or female legal classifications. The current recognition model offers no solution or recognition to the problems which these persons encounter. Other jurisdictions have looked at providing third gender options for non-binary persons on identity documents, such as passports. While a third gender or ?X? gender option will not address the needs of all non-binary persons, it would be a first, good faith effort on behalf of the Irish state.

The passage of the Gender Recognition Act 2015 is a momentous event. It is another step towards promoting the equality, dignity and full citizenship of all persons. The legislation is certainly not perfect and, in many aspects, remains deeply flawed. However, the movements towards self-determination and away from forced divorce will significantly ease the application process for countless individuals. Self-declaration is a powerful statement of the autonomy and dignity of trans persons. After a long struggle, this is a moment to savour. Moving forward, the fight for full and equal rights will continue.

Following on from yesterday’s guest post, we are please to welcome this second post from Dr Susan Power. Susan lectures International Criminal Law at Griffith College Dublin and is a legal researcher for Al-Haq, a Palestinian human rights organization based in Ramallah, Palestine. The views expressed are those of the author and do not represent those of the institutions for which the author currently works.

On 22 June 2015, the United Nations Commission of Inquiry (COI) published its report on violations of international humanitarian law (IHL) and international human rights law (IHRL) in the Occupied Palestinian Territory (OPT) comprising the West Bank including East Jerusalem and the Gaza Strip. The COI was mandated to investigate all violations of IHL and IHRL in the OPT ?in the context of military operations conducted since 13 June 2014, whether before during or after to establish the facts? including Israel?s so-called Operation Brothers Keeper in the West Bank and Operation Protective Edge in the Gaza Strip. The COI examining the pattern and gravity of attacks concluded that Israel may have committed war crimes during its military operations in the Gaza Strip and West Bank including East Jerusalem. It further concluded that senior Israeli officials were responsible for Israel?s military policies, which may also violate the laws of war and considered Israel?s accountability mechanisms inadequate giving rise to prevailing impunity for violations of IHL and IHRL. This article examines the focus of the COI on Israel?s post conflict obligations in relation to the occupation of the Gaza Strip and the blockade.

(1) Belligerent Occupation

Contextually, one of the first hurdles of the COI was in relation to the legal framework and the categorization of Gaza as occupied territory. The COI considered Gaza occupied under Article 42 of the Hague Regulations, applying an effective control test to denote Israel?s control over the territory. Israel has argued that it does not exercise the requisite control over the Gaza Strip since its ?disengagement? of troops in 2005. However the COI, drawing from the ICTY Naletelic case and the Nuremberg Hostages Trial, determined that ?the continuous presence of soldiers on the ground is only one criterion to be used in determining effective control?. Instead the COI considered that the condition was satisfied by the fact that Gaza was almost completely surrounded by Israel which ?facilitates the ability for Israel to make its presence felt?. Although the COI concluded that the Gaza Strip was occupied it considered Israel?s obligations towards the Gaza Strip were ?consistent with the level of control it exercises?. The net effect of this conclusion has been an unsavoury dilution of Israel?s obligations, which is evident throughout the Report particularly in relation to post conflict reconstruction of the Gaza Strip.

During the hostilities the civilian infrastructure of the Gaza Strip was targeted. A staggering 2,251 Palestinians were killed in Gaza, and 11,231 injured with 10% suffering resulting permanent disability. In addition, 80,000 housing units were damaged or destroyed, leaving 100,000 people displaced months after hostilities had ended. Gaza?s power plant was attacked on five separate occasions seriously impacting the delivery of electricity, water and sanitation facilities long after the close of hostilities. However, the COI failed to highlight Israel?s continuing administrative and humanitarian obligations to ensure the provision of essential services stemming from its continued belligerent occupation of the Gaza Strip. Instead, the COI emphasized the need for international and NGO donor aid for the reconstruction effort, while sidestepping Israel?s overarching responsibilities as belligerent occupant. The COI concluded, ?all parties have obligations to respect and take steps towards the realization of these rights, including Israel, the State of Palestine, the authorities in Gaza and the international community? (para 599).

The treatment of post conflict Gaza in the report represented a serious departure from the findings of the 2009 Goldstone Report, which devoted a substantial section to Israel?s obligations as Occupying Power in the Gaza Strip to ensure vital humanitarian guarantees were met (paras. 1300-1335). For example, the Goldstone Report had examined the impact of the blockade and military operations on the people of Gaza and their human rights, examining the economy, livelihoods and employment, food and nutrition, housing, water and sanitation, environment, physical and mental health, education, impact on women and children, persons with disabilities, and the impact of humanitarian assistance provided by the United Nations. It concluded that Israel had obligations to the Gaza Strip under international humanitarian law, customary international law and a number of international human rights treaties.

(2) Blockade

The COI considered that ?the impact of the 2014 hostilties on the Gaza Strip cannot be assessed separately from the blockade imposed by Israel?. However, while the Commission had presented a detailed legal appraisal of the application of occupation law to Gaza, it did not examine the legality of the blockade. The conclusion that Gaza is occupied places it squarely within the categorization of an international armed conflict (IAC). Although blockades are legal within the context of an IAC, the belligerent occupant has obligations under Article 59 of GCIV to permit and guarantee the free passage of consignments of foodstuffs, medical supplies and clothing, while Article 70 of Protocol 1, provides that parties to the conflict facilitate the passage of articles essential for the civilian population at the earliest opportunity, without delay. In addition, Article 102 of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (12 June 1994) considers a blockade prohibited where:

(a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or

(b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.?

In this vein, United Nations Security Council resolution 1860 (2009) called for the reopening of crossing points based on the 2005 Agreement on Movement and Access between the Palestinian Authority and Israel, and the ?unimpeded provision and distribution throughout Gaza of humanitarian assistance, including of food, fuel and medical treatment?. It would appear that the legality of the blockade may be challenged in this regard. The failure of the COI to address the legality of the blockade, represents a missed opportunity, and is out of step with many international opinions on point. For example, in September 2012, a number of United Nations experts, pronounced on the illegality of Israel?s naval blockade of the Gaza coast, suggesting that the naval blockade must be recognized as an integral part of the closure policy towards Gaza which amounted to the war crime of collective punishment. Similarly, the 2009 Goldstone Report had found that Israel?s policy of closure in the Gaza Strip amounted to a collective penalty in violation of Article 33 of the Fourth Geneva Convention (para. 1331).

Conclusion

Despite the determination that the Gaza Strip was occupied, the COI avoided pronouncing on Israel?s continuing obligations towards protected persons in occupied Gaza. In 2014, the World Bank reported that economic decline in Gaza was ?directly linked with armed conflict, movement restrictions, and recently the blockade?. However by linking Israel?s obligations with the level of control it chooses to apply over the OPT, the COI supported Israel?s deliberately engineered role as ?inactive custodian? a relationship at odds with the object and purpose of the Hague Regulations.

We are happy to welcome this post from Dr Susan Power, who lectures International Criminal Law at Griffith College Dublin and is a legal researcher for Al-Haq, a Palestinian human rights organization based in Ramallah, Palestine. The views expressed are those of the author and do not represent those of the institutions for which the author currently works.

This post on the 2015 Commission of Inquiry (COI) into the OPT, presents an overview of the COI?s examination of Israel?s accountability for war crimes committed during Operation Protective Edge and Operation Brothers Keeper in the OPT. Notably the preamble to Human Rights Council resolution S-21/1 had indicated grave concern at the lack of implementation of the recommendations of the Goldstone Report in 2009, which had given rise to a ?culture of impunity?. In 2009, the Goldstone report surmised, ?it was struck, as well, by the comment that every time a report is published and no action follows, this ?emboldens Israel and her conviction of being untouchable?. To deny modes of accountability reinforces impunity, and tarnishes the credibility of the United Nations and the international community? (para. 1957). The Human Rights Council had noted a ?systemic failure? by Israel in investigating international crimes orchestrated against Palestinians, and issued the 2015 COI with a mandate to make recommendations on accountability measures. This article will examine how the COI has addressed the systematic impunity which prevails over crimes committed by Israeli forces in the OPT

(1) Establishing ?Patterns of Alleged Violations?

Interestingly, the Commission outlines the significance in establishing ?patterns of alleged violations? (para. 13) adopting the language of gross violations of human rights derived originally from Human Rights Commission Resolution 8 (XXIII) (1967) on the ?Study and Investigation of Situations Which Reveal a Consistent Pattern of Violation of Human Rights?. The language of ?pattern? has been used in the Inter-American court system to describe the seriousness of human rights violations. A ?pattern of alleged violations? may denote a widespread or systematic attack against the civilian population, or it may also fit into the threshold of Article 8 war crimes, ?committed as part of a plan or policy of a large-scale commission of such crimes?.

However the COI generally refers to patterns of events, which although singularly might comport with the LOAC, taken altogether amount to an attack on the civilian population. For example, the COI cite the ICTY Kupreskic Judgment whereby a ?pattern of military conduct may turn out to jeopardize excessively the lives and assets of civilians?. This referred to warnings outlined in Article 58 and 59 API, which were rendered ineffective by repeated attacks against civilians. The delivery of ineffective warnings instead established a pattern of conduct creating an environment conducive to attacks on civilians. Furthermore, the COI Report indicates that ?the blockade and the military operation have led to a protection crisis and chronic, widespread and systematic violations of human rights? (para. 24) indicating potential crimes against humanity, although the detailed report refers only to ?widespread? human rights violations (para 550).

(2) The Commission of War Crimes

At a minimum, the COI found that there were reasonable grounds for concluding that Israel may have committed war crimes. The COI considered that there were strong indications that IDF attacks on residential properties located in densely populated areas of the Gaza Strip, in the absence of an anticipated military advantage, violated the principle of proportionality and amounted to war crimes. Furthermore, the use of GBU-32/MK-82, 1000lb and GBU 31/MK-84, 2000lb bombs in densely populated areas were intended to have a wide impact, thus violating the prohibition on indiscriminate attacks (para. 226). As such, the targeting of civilians not taking part in hostilities, violated the principle of distinction and amounted to war crimes. Nor was the COI convinced that Israel had taken all feasible precautions in attacks. The COI pointed inter alia to other war crimes committed by the IDF including the razing of Khuza?a, (para. 337), the IDF?s use of human shields (para. 346), the torture and ill treatment of Palestinian civilians (para 346), indiscriminate attacks orchestrated by the implementation of the Hannibal Directive in Rafah (para. 365), the use of indiscriminate weapons amounting to a direct attack on civilians (para 415, 446), attacks on medical transports and medical personnel (para 464) and willful killing in the West Bank including East Jerusalem (para. 71 of Report).

(3) War Crimes as Policy or Plan

Overall, the COI established that the war crimes were committed as part of a broader military and governmental policy and plan. For example, the COI expressed its concern that Israel had applied a liberal understanding of ?military objective?, which was ?broader than the definition provided by international humanitarian law?. More specifically, the COI considered that IDF strikes on civilian property amounted to military tactics, which were reflective of a broader policy sanctioned by decision makers in the highest levels of government. Similarly, it considered Israel?s use of the Hannibal Directive, to use all means to prevent the abduction of a soldier as ?unusually expansive in terms of defining what targets are legitimate military objectives? (para. 360). This contributed to a military culture, which contributed to ?the unleashing of massive firepower on Rafah? (para. 371). In addition, IDF policies on using inaccurate weapons in densely populated areas contributed to significant civilian casualties (para. 414).

(4) Ineffectiveness of Existing Accountability Mechanisms

Notably, the ICC has opened a preliminary examination into the situation in Palestine. Should a situation be opened, in terms of complementarity, the ICC may find a case admissible where a State remains inactive or is otherwise unwilling or unable to genuinely investigate or prosecute crimes within the jurisdiction of the Court. In this regard, the transparency of Israel?s Military Advocate General (MAG) and General Staff Mechanism for Fact-Finding Assessments (FFAM) investigations into incidents during Operation Brothers Keeper and Operation Protective Edge is significant (para. 114). The COI noted that investigations had not taken place into IDF attacks on Shuja?iya (para. 298). Despite the gravity of crimes described by the COI, by April 2015, the MAG had identified seven incidents for examination, three of these related to minor incidents of soldiers looting. Accordingly, the COI questioned the independence, impartiality and transparency of Israel?s system of investigations ? for example the Israeli High Court of Justice had adopted a position of non-intervention in matters relating to the military prosecutor. Moreover, Israel by not allowing lawyers for complainants review investigatory materials, and not informing complainants of MAG decisions had operated in an ?accountability vacuum?. Altogether the COI concluded that the investigations of the FFAM tended to focus on ?exceptional incidents? leaving out examinations of IHL stemming from an intentional policy or military command. As such, there was no examination into the role of senior Israeli military and civilian leaders in relation to violations of IHL.

Following the publication of the findings of the COI, the State of Palestine submitted a file to the ICC documenting Israel?s war crimes in the OPT. On 3 July 2015, the UN Human Rights Council adopted resolution A/HRC/29/L.35 ??Ensuring accountability and justice for all violations of international law in the Occupied Palestinian Territory, including East Jerusalem?? calling in particular on ?the parties concerned to cooperate fully with the preliminary examination of the International Criminal Court and with any subsequent investigation that may be opened?. Notably the Resolution underscored the importance of the 2009 Goldstone Report for future accountability efforts, which is significant given the narrow jurisdiction of the ICC back to 13 June 2014 for crimes committed in the OPT.

The School of Law and Government at Dublin City University (DCU) invites applications for its taught Masters in law (LLM). The School is unique in the Irish academic legal landscape for its core ?law and society? research theme and its focus on socio-legal studies. DCU?s LLM in Law specifically sets out to be different from other taught Masters in law. It offers a fantastic range of innovative, challenging modules and aims to enhance and expand not only students? substantive knowledge of the law but their practical legal skill-sets. The LLM programme team is dedicated to using innovative, experiential and skills-based pedagogical strategies in order to facilitate students with an active and student-centric learning experience. This LLM is designed to deliver strong potential employees to the marketplace, and strong critical thinkers to the research community. If you want to deepen your ability to examine and critique the law in its societal context and increase your applied legal competencies then this LLM is for you.

DCU?s LLM in Law is delivered as a one-year, full-time programme. Students will take one core year-long module in Legal and Socio-Legal Research Skills. This will provide students with important skills to analyse and critique the legal research of others, along with a robust grounding for their own completion of an independent research Dissertation (15,000 ? 20,000 words). In addition to the core Legal and Socio-Legal Research Skills module and the Dissertation students can choose four optional modules (two in each semester).

Full details on these modules (which include international law modules, commercial law modules, socio-legal and public law modules) along with further information on the LLM programme are available here.

Applications are via www.pac.ie and the closing date is July 31^st 2015.