By Christopher Stanley.
[i]
“Ireland was a cold harsh environment for many, probably the majority, of its residents during the earlier half of the period under remit. It was especially cold and harsh for women”. (page 1)
The Irish government may have hoped in vain that the publication of The Report of the Mother and Homes Commission of Investigation would provide a moment of catharsis and suture to what Caelainn Hogan calls The Republic of Shame for the people of Ireland.
It did not.
[ii]
Criticism of the work of the Commission; and of its Report and Recommendations has been fierce from victims/survivors.
In addition it is the tone of the prose of the Report which also angers:
“Responsibility for that harsh treatment rests mainly with the fathers of their children and their own immediate families. It was supported by, contributed to, and condoned by, the institutions of the State and the Churches. However, it must be acknowledged that the institutions under investigation provided a refuge – a harsh refuge in some cases – when the families provided no refuge at all”. (page 1)
As the Taoiseach stated on the day following the publication of the Report “the shame was not theirs; it was ours”.
Therefore, everyone is to blame, and no-one is to blame – because there is no evidence in spite of the testimony of survivors.
This statement only serves to demonstrate the continued and entrenched lack of respect for the dignity and rights of victims/survivors of a system of coercion, control and abuse administered by the church and funded by the state over decades of of systemic human rights abuses.
As Colm Toíbín noted in The Sunday Times (17 January 2021):
“The problem with these apologies is that we cannot be sure that those who offer them really mean them. In his apology, the prime minister, Micheál Martin, said that the report presented ‘all of Irish society with profound questions’ and ‘we did this to ourselves…All of society was complicit in it””.
Toíbín reads this as letting the church “off the hook”. Not that the church co-operated with the Commission to any great, extent noting that its archives are private. The Commission was “perplexed and confused” by this deliberate block by the church.
As Emer O’Toole noted in The Independent (14 January 2021):
“Tuesday’s report does not close a dark chapter in Irish history. Rather, it opens a book filled with fragments and missing pages, with many vital details redacted and a narrative voice that comes to feel less trustworthy the more you read. This story is still being written, and we must support survivors as they continue their fight for justice.”
She continued:
“The investigation was conducted in secret, in a manner completely incompatible with international best practice for inquiries into human rights violations. Those affected had no access to evidence or their own records; they could not testify publicly or suggest modes of enquiry. Despite government assurances that survivors have the legal right to access their records, the commission of investigation is still denying any requests for information. In short, survivors and adopted people continue to be treated appallingly.”
[iii]
For example, one of those fragments referred to by O’Toole is that within the Report there is only one mention/example/testimony of the medical procedure of symphysiotomy, an outdated surgical procedure in which the cartilage of the pubic symphysis is divided to widen the pelvis allowing childbirth when there is a ‘mechanical’ problem.
As the Commissioner for Human Rights of the Council of Europe noted following his visit to Ireland (22 to 25 November 2016):
“184. It is estimated that 1,500 women underwent symphysiotomy in Ireland mostly between the 1940’s and the 1980’s. Symphysiotomy is a surgical procedure that involves sundering the mother’s pelvis to enable difficult childbirth. This procedure was not performed in other European countries during the same time period, as caesarean section was the procedure generally used in cases of difficult births.”
The United Nations Human Rights Committee noted (19 August 2014) also noted:
“The Committee expresses concern that symphysiotomy, a childbirth operation which severs one of the main pelvic joints and unhinges the pelvis, was introduced into clinical practice and performed on approximately 1,500 girls and women in public and private hospitals between 1944 and 1987 without their free and informed consent … The State party should initiate a prompt, independent and thorough investigation into cases of symphysiotomy, prosecute and punish the perpetrators, including medical personnel.”
This is just one significant example of absence/silence within the Report but it is indicative and illustrates the human rights deficit criticism which plagued the work of the Commission throughout the duration of its work. But the Commission was not mandated to conduct a human rights investigation:
“Prior to the establishment of this Commission, the Irish Human Rights Commission (now the Irish Human Rights and Equality Commission) told the Government that ‘it is critically important that any such investigation should take place within a human rights and equality framework and in particular that it conforms with the State’s human rights obligations under the Constitution and under international human rights law’. The Irish Government did not opt for that approach in its mandate to the Commission.”(36.2) The Commission states: “36.80. There are no clear absolute rights.” Article 3 ECHR (the prohibition against torture, inhuman and degrdaing treatment) is an absolute right.
[iv]
The Irish government has therefore failed to discharge its positive investigatory obligations as demanded under the ECHR following a human rights violation, specifically regarding the right to life (Article 2), the prevention of torture, inhuman and degrading treatment (Article 3) and the right to private life (Article 8).
This is why there have been calls for a human rights’ compliant investigation into Mother and Baby Homes. Taken together with demands that the Garda investigate the criminality and culpability of both individuals and organisations both religious and state. This should include those employed within the medical profession and social services and those charged with their governance and regulation.
Further, there are requests that the Attorney General direct inquests into the deaths of 9,000 children within the system (15%) including the mass grave at Tuam, County Galway: “If you find the body of a child in your garden, the Gardaí (Police) will be called and an inquest will be convened; but if the maltreated bodies of 796 children are found in a cesspit attached to a home run by nuns, the minister for children will bring a bill to cabinet to ensure no inquest is ever held” (Press Statement of the Tuam Home Survivors Network 11th January 2021)
[v]
What must be confronted now by the Irish State and the citizens of the Republic of Shame is the question: was this a crime against humanity?
The Irish Council for Civil Liberties raised concerns regarding Irish state Liability for Enforced Disappearance and right to truth/know. On the International Day of the Disappeared (30 August 2018), Liam Herrick, Director of the Irish Council for Civil Liberties stated inter alia
“The State-sponsored system of forcibly separating unmarried mothers and their children during the 20th century appears to ICCL to involve ‘enforced disappearance’, one of the gravest violations of European and international human rights law. Last year a European Parliament Committee recognised that a similar system in Spain – that of the ‘stolen babies’ – constitutes crimes against humanity. Ireland needs to wake up to the seriousness of what is at stake.”
According to the UN the prohibition of crimes against humanity has been considered a peremptory norm of international law from which no derogation is permitted and which is applicable to all States.
The 1998 Rome Statute establishing the International Criminal Court is the document that reflects the consensus among the international community on this matter. It is also the treaty that offers the most extensive list of specific acts that may constitute the crime.
Article 7 states “For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”
These acts include: Enslavement; Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.
Crimes against humanity do not need to target a specific group. Instead, the victim of the attack can be any civilian population, regardless of its affiliation or identity. It is not necessary to prove that there is an overall specific intent. It suffices for there to be a simple intent to commit any of the acts listed.
A progressive liberal democratic state on the edge of Europe; a member of the Council of Europe,the European Union and the United Nations, a signatory to multiple human rights conventions and instruments including the ECHR.
But at what costs to its continued sovereign dignity and integrity if the demands of survivors of this horror are ignored and the crimes against their humanity escape justice?
Christopher Stanley is Litigation Consultant KRW LAW LLP Belfast