The Editorial Board

Recent Events in Sudan and the ICC: The Prosecutor v Omar Al Bashir

Recent Events in Sudan and the ICC: The Prosecutor v Omar al Bashir

Naz Khan

ICC Jurisdiction

In Resolution 1564,[1] the U.N. Security Council (UNSC) requested the U.N. Secretary-General investigate reports of gross violations of humanitarian and human rights laws in the Darfur region of Sudan between 2003 and 2008.[2] The International Commission established that the Sudanese government, along with Rapid Support Forces (RSF) or Janjaweed militias,[3] carried out indiscriminate attacks on civilians including mass rapes, killings, torture, enforced disappearances and the destruction of villages on a systematic basis throughout Darfur.[4] The International Commission referred these crimes  to the International Criminal Court (ICC) who issued an arrest warrant for Al-Bashir, the incumbent President of Sudan.[5]

The case raised several issues of contention: first the issue of an arrest warrant for an incumbent head of state was contentious; second the African Union (AU) requested a deferral of the case and established a High-Level Panel on Darfur, seeking to find an African solution to bring about accountability and reconciliation in the region. Charges against Al-Bashir included crimes against humanity, war crime, and genocide based upon perpetration by means, meaning that Al-Bashir had committed these crimes indirectly through the army and the militia.[6] ICC jurisdiction, in this case, is established by a UNSC referral, since Sudan is not a party to the Rome Statute of the ICC.[7] Article 13 enables the UNSC to refer a case to the ICC, according to its powers under Chapter VII UN Charter.[8]

Domestic Charges       

Instead of being surrendered to the ICC to face charges on international crimes, Al-Bashir has been in the custody of the military who instigated a coup in April 2019.[9] Al-Bashir now faces prosecution in Sudan for corruption, after being found with $113 million in foreign currency in grain sacks at his residence.[10] Prosecutors in Sudan have informed Al-Bashir that he faces charges of “possession foreign currency and acquiring suspicious and illicit wealth”,[11] based on an emergency decree that Al-Bashir himself imposed following protests to his rule that made it illegal to carry more than $3,000 in foreign currency.[12]

Concerns were raised however, about the potential for Al-Bashir to receive a fair trial in Sudan and the possibility of escaping prosecution for the most serious international charges against him .[13] Further investigations could lead to domestic charges for money laundering, financing of terrorism, or the killing of up to 100 protestors – which could lead to a potential death penalty under Sudanese criminal law.[14] Because such domestic charges involve a long prison sentence or potential death penalty, Al-Bashir could escape being tried at the ICC for the mass atrocities and the deaths of around 300,000 people, including allegations that he had overseen an attempt to wipe out part of the Fur, Zaghawa and Masalit communities.[15]

A Massive Blow to the ICC?

The ICC has faced numerous criticisms throughout its 20-year history, for long delays, weak management, and ineffective prosecutions,[16] including interferences with witnesses,[17] and in particular from the nations of the AU for its disproportionate emphasis upon situations in Africa.[18] The OTP currently investigating ten situations in Uganda, Democratic Republic of Congo (DRC), Darfur, the Central African Republic (CAR), Kenya, Libya, Côte D’Ivoire, Mali, another situation in CAR, in Georgia, and Burundi (since 2017).[19] This African focus has led to numerous accusations against the court of double-standards, neo-colonialism, and ‘white justice’, which makes the ICC no more than a criminal court for Africa, while failing to address war crimes in Iraq, or Afghanistan perpetrated by Western leaders.[20] Such accusations have been growing over the past decade, with AU member states regularly threatening to withdraw en masse from the Rome Statute; South African announced its withdrawal in October 2016.[21]

The Al-Bashir case has been symbolic of this diplomatic crisis between the AU and the ICC, the AU being early supporters of the ICC, while other states (notably permanent members of the Security Council: the United States and China) have never ratified the Rome Statute. [22]  African leaders have been highly critical of the indictment against Al-Bashir, with Jean Ping, chairperson of the AU’s Commission arguing that “international justice seems to be applying its fight against impunity on to African as if nothing were happening elsewhere – in Iraq, Gaza, Colombia or in the Caucasus.”[23] The AU adopted an official policy of non-cooperation with the ICC; arguing that the peace process in Sudan should take precedence over the ICC arrest warrant for Al-Bashir, and claiming that as a head of state he enjoyed immunity to prosecution.[24] This non-cooperation by the AU has also led to the collapse of the trial of the Kenyan President Uhuru Kenyatta in December 2014,[25] thus exacerbating the perceived crisis of legitimacy for the Court.

Non-cooperation has also been a feature of the failure of the ICC to obtain custody of Al-Bashir, who has travelled to Ethiopia, Chad, Malawi, the DRC, Nigeria, Kenya, and South African, during the period of his arrest warrant; all of whom have failed to arrest and surrender Al-Bashir to the ICC,[26] which is part of their obligation as parties to the Rome Statute. In the light of the non-cooperation of African States with the Office of the Prosecutor, it appears that the Al-Bashir case will be critical to the future of the ICC. If the ICC manages to prosecute the former Sudanese leader, this will show that the ICC can overcome the lack of support from African countries and the AU. However, it seems most likely that Al-Bashir will be prosecuted in Sudan, leaving the international charges untried.

[1] S.C. Res. 1564, at (Sept. 18, 2004).

[2] Int'l Comm'n of Inquiry on Darfur, Rep. of the Int'l Comm. of Inquiry on Darfur to the U.N. Secretary-General, at 1(2005) (pursuant to S.C. Res. 1564, (Sept. 18 2004)) [hereinafter Inquiry on Darfur].

[3] Bashir Makes First Appearance since Sudan Coup, BBC News (June 16, 2019), https://www.bbc.com/news/world-africa-48655897.

[4] Inquiry on Darfur at 2.

[5] L. Oette, Peace and Justice, or Neither? The Repercussions of the al-Bashir Case for International Criminal Justice in Africa and Beyond, 8 J. Int'l Crim. Just. 345, 346 (2010).

[6] Prosecutor v. Al Bashir, ICC-02/05-01/09-73, Judgment on the appeal of the Prosecutor against the "Decision on the Prosecution's Application for a Warrant Arrest against Omar Hassan Ahmad Al Bashir", ¶ 2 (Feb. 3, 2010) https://www.icc-cpi.int/CourtRecords/CR2010_00656.PDF.

[7] Rome Statute of the International Criminal Court art. 13, July 17, 1998, 37 I.L.M. 1002, 2187 U.N.T.S. 90 [hereinafter Rome Statute]

[8] Id.

[9] Sudan Unrest: Why Omar al-Bashir Was Overthrown, BBC News (April 15, 2019), https://www.bbc.com/news/world-africa-47852496.

[10] Bashir Makes First Appearance since Sudan Coup, supra note 3.

[11] Hiba Morgan, Scepticism as Sudan Moves to Put Omar Al-Bashir on Trial, Alijazeera (June 17, 2019) https://www.aljazeera.com/news/2019/06/anger-skepticism-sudan-moves-put-omar-al-bashir-trial-190616184112957.html.

[12] Id.

[13]James Reinl, Omar Al-Bashir Must Answer For Darfur Abuses Now, ALIJAZEERA (June 19, 2019)

https://www.aljazeera.com/news/2019/06/icc-prosecutor-omar-al-bashir-answer-darfur-abuses-190619155025202.html.

[14] Id.

[15] James Copnall, Darfur Conflict: A Bloody Stalemate, BBC News (April 29, 2013) https://www.bbc.com/news/world-africa-22336600.

[16] Elizabeth Wilmshurst, Strengthen the International Criminal Court Chatham House (June 12, 2019) https://www.chathamhouse.org/expert/comment/strengthen-international-criminal-court.

[17] Jon Silverman, The Justice Conundrum: Africa’s Turbulent Relationship with the ICC Harvard Int'l L.J.  (Feb. 18 2019) https://harvardilj.org/2019/02/the-justice-conundrum-africas-turbulent-relationship-with-the-icc/.

[18] Femi Falana, Achieving Justice For Victims And Ending Impunity Across The Continent (July 31, 2019) https://saharareporters.com/2019/07/31/achieving-justice-victims-and-ending-impunity-across-continent-femi-falana.

[19] International Criminal Court, Situations under Investigation (2019) https://www.icc-cpi.int/Pages/Situations.aspx (last visited July 1, 2019).

[20] Jean-Baptiste Jeangène Vilmer, The African Union and the International Criminal Court: Counteracting the Crisis  92 Int't Aff. 1319, 1320 (2016).

[21] Id.

[22] Ryan J Vogel, Challenges for the United States with the Rome Statute’s “Crime of Aggression” 1 Utah Valley U.  J.  Nat'l Security (2017) 7, 18 (2017).

[23] Soudan: l’Union africaine veut interrompre la procédure contre Al-Bachir, Le Monde Afrique (Mar. 4, 2009) https://www.lemonde.fr/afrique/article/2009/03/04/soudan-la-decision-de-la-cpi-inquiete-l-union-africaine_1163310_3212.html.

[24] Leila Sadat, 'Why The ICC’S Judgment In The Al-Bashir Case Wasn’T So Surprising' (July 12, 2019) https://www.justsecurity.org/64896/why-the-iccs-judgment-in-the-al-bashir-case-wasnt-so-surprising.

[25] Lorraine Smith-van Lin, Non-Compliance and the Law and Politics of State Cooperation, in Cooperation and the International Criminal Court: Perspectives from Theory and Practice 114 (Olympia Bekou & Daley Briketts eds., 2016).

[26] Prosecutor v. Al Bashir,  ICC-02/05-01/09, Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, ¶ 18-20 (Apr. 9, 2014) https://www.icc-cpi.int/CourtRecords/CR2014_03452.PDF.

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Students For Fair Admissions v Harvard: Affirmative Action in Crisis?

Students For Fair Admissions v Harvard: Affirmative Action in Crisis?

Tristan Kavanagh

I. Introduction

“Our Constitution is colour-blind, and neither knows nor tolerates classes among citizens… The law regards man as man, and takes no account of his surroundings or of his colour”.[1]

These words, spoken by Justice John Marshall Harlan in 1896, are still disputed today in the United States, with the compelling issue of alleged discrimination in college admissions applications being contested in the courts. In November 2014, Students For Fair Admissions (SFFA) filed a complaint against Harvard University maintaining that the college employs 'racially and ethnically discriminatory policies and procedures in administering the undergraduate admissions'.[2] The basis of the claim centres on Harvard’s alleged discrimination towards Asian-American applicants, in that they are held to a higher standard in the application process as compared to all other ethnic groups.

The case is of particular importance to many concerned with the process of American university applications and those affiliated with civil rights groups seeking change, or for those hoping to maintain the current practice. The decision of the case will have significant implications for future programs which aim to increase the number of minority groups in colleges across the US. Even more consequential, the decision of SFFA v Harvard, which will likely be contested all the way to the Supreme Court, could have major implications for the federal government policy of affirmative action as the plaintiffs argue that the complete removal of race-based considerations in admissions is the only real way to ensure Asian-Americans have an equal chance of being accepted into elite institutions such as Harvard or other colleges nationwide.[3]

In this article, the author will examine the issues that led to Harvard’s admissions policy being contested by analysing Supreme Court precedent involving the statutory legality and constitutional status of affirmative action in the US. Furthermore, the author will seek to outline the reasons for his belief that affirmative action in college admissions ought to be retained despite its difficulties.

II. Harvard’s Diversity Program

(i) The holistic process and its origins
A century ago, many elite American universities became more aware of their role in socially engineering a society with prevalent class-based divisions.[4] Among these institutions, there was a shared ambition to amass diverse university campuses with many factors considered in admitting aspiring applicants that went beyond mere geography. Such factors alongside proven academic ability were those of personal qualities and racial background. Harvard led the way in developing this holistic admissions policy. Nonetheless, the plaintiffs assert that the initial reasons for the college doing so are more suspect. It seems that Harvard’s eagerness to implement a more diverse applications process heavily arose in the nineteen-twenties from a fear of an excessive body of Jewish students who were deemed academically capable but lacked the desired personality and character traits.[5] Thus the supposed origins of Harvard’s diversity program has become a point of argument for the plaintiffs as they assert that the 'personal' ratings in applications which considers factors such as likeability, kindness, integrity and effervescence among other things, which they believe had discriminated against Jewish applicants in the past, are now presently used to the detriment of Asian-American applicants.[6]

(ii) The issue of personal ratings
SFFA obtained data on more than 160,000 recent applications revealing that statistically Asians scored lower in terms of personality ratings.[7] Despite the fact that their academic scoring was on par and often even higher than white applicants, the personal ratings lowered the number of Asian admissions. Harvard maintains the data is flawed.[8] The legality of these personal ratings was questioned by the plaintiff’s attorneys, who indicated that there is a lack of written instructions to guide admissions officers on how to fairly use race, which would help reduce implicit racial bias.[9] If it is found that there is, indeed, a pattern of personal bias against Asian applicants, the legal justification of these personal ratings would be highly questionable and it would therefore be quite understandable if SFFA are to use them as their main argument in the push for 'the outright prohibition of racial preferences in university admissions'.[10]

III. The Law on Affirmative Action

(i) The original intentions
Accordingly, it is no surprise that the subject of affirmative action is a divisive one for Asian-Americans. Affirmative action, otherwise known as 'positive discrimination', was introduced in the US. by President John F. Kennedy in 1961 with the intention that it would help 'level the playing field' in certain areas of employment, giving those of a minority ethnicity or of lower means assistance in securing work.[11] Affirmative Action, when introduced, aimed to fulfil the goal of compensatory and distributive justice.[12] The policies sought to partly rectify and compensate for the injustices of the past, when minorities suffered from inhumane discrimination. There was a clear intention to enhance the status of minorities in American society. The Harvard case will soon be encompassed within a long line of cases challenging fundamental aspects of the policy of affirmative action.

(ii) Regents of the University of California v Bakke
The law on affirmative action as it stands is rooted in Justice Powell’s lone opinion in Regents of the University of California v Bakke.[13] His judgement was effective in shifting the rationale for ethnic preferences from redressing societal discrimination and structural racism to the objective of accomplishing diversity. In Bakke,[14] a white applicant to the University of California Davis’ medical school challenged his rejection, alleging that the college operated a system of racial quotas whereby a quantity of students from minority backgrounds were admitted over white applicants despite having lower test scores in an effort to achieve racial balancing. The programme of racial balancing was declared by the Supreme Court to be 'patently unconstitutional'.[15] Racial quotas were deemed legally impermissible.[16] However, numerical goals were seen as constitutional. Goals are flexible, unlike quotas, and their variants can be seen between each year.[17] Effectively, the idea of racial harmonisation values 'race for its own sake'. Diversity, on the other hand, is imperative in that it directly benefits students’ educational experience.

(iii) Bakke’s legacy
Ultimately, Justice Powell’s decision in Bakke emphasises the importance of diversity in a new, more progressive society. In his judgement, Justice Powell gave an overwhelming endorsement of the holistic admissions approach enshrined within the Harvard Plan, noting that a 'boy from Idaho' has as much a critical role in diversity 'as a black student [who] can usually bring something that a white person cannot offer'.[18] Essentially, Powell’s decision ensured that, until as of late, Harvard’s diversity plan was a 'facially non-discriminatory admissions policy'.[19]

IV. Recent Case Law

(i) Grutter v Bollinger
More recently, affirmative action has become further narrowed. In the 2003 case of Grutter v Bollinger,[20] while a 'race-conscious admissions program' was deemed constitutionally acceptable, it was ruled that race is only one consideration in admissions and that 'all factors that may contribute to student body diversity'[21] such as volunteer work and extracurricular activities are to be considered. The decision acknowledges that while such an admissions policy may tend to favour underrepresented minority groups, the policy does not amount to an unconstitutional quota system.

(ii) How SFFA’s case differs from Grutter
Nevertheless, in the Harvard case the issue remains that Asian-Americans are disadvantaged from being an overrepresented minority. The US Government census shows that Asians make up 5.7%[22] of the US population yet are 22.2%[23] of Harvard’s student population. Other institutions which reject racial-based affirmative action policies, such as the California Institute of Technology, have witnessed a surge in their numbers of Asian-American enrolments which is proportionate to the increase in Asian-American students nationwide.[24] The plaintiff submitted that this is proof of informal quotas and racial balancing being operated in Harvard analogous to the quota system imposed on Jewish students almost a century ago. Justice Sandra Day O’Connor’s ruling in Grutter primarily dealt with the application of white students, the majority group in the US. With internal reviews conducted that show if Harvard were to consider only the grades and test scores of applicants, the Asian-American student body would make up 43% of the University student population,[25] it is easy to see why a general observer would believe there to be a race-based quota system being operated in Harvard.

(iii) Fisher v University of Texas and Fisher II
A decade after Grutter came the case of Fisher v University of Texas[26] in which the plaintiff, a young white woman, complained of 'reverse discrimination' which she believed was responsible for her rejection from the University. When the case came before the Supreme Court in 2013, the bench found in a 7-1 decision that the Equal Protection Clause of the Fourteenth Amendment permitted the consideration of race in undergraduate admissions decisions, so long as race was held under a standard of strict judicial scrutiny.[27] This was later affirmed in 2016 when the case again came before the Court. In a 4-3 ruling, Justice Kennedy, who wrote the majority opinion, outlined that affirmative action in college admissions was lawful as long as race was considered as a 'factor of a factor of a factor',[28] thus narrowing the policy of affirmative action even further.
The purpose of affirmative action in the twenty-first century is very different from the one intended in 1961. It no longer primarily exists to accomplish compensatory and distributive justice but to foster and ensure diversity.

V. The Academics’ View
As for educational experts, the issue is a polarizing one. Many have advocated for Harvard’s current process, outlining that the decisions of the US Supreme Court in Grutter v Bollinger suggests that the 'holistic' admissions policy tends to be fairer and more legally defensible than an outright mathematical formulaic approach.[29] Nonetheless, many also disagree. Richard D. Kahlenberg, editor of The Future of Affirmative Action: New Paths to Higher Education Diversity after Fisher v. University of Texas, maintains that America should implement laws to encourage students of all races who are economically disadvantaged.[30]

However, Kahlenberg’s proposition ignores one of the fundamental components of affirmative action, in that it brings about a form of utilitarian justice. The public at large greatly benefits from reduced racial inequality and particularly the educational experience of Americans has been greatly enhanced because of their association with a more diversified learning and professional environment.

VI. Affirmative Action in Danger
The support for race-conscious admissions policies gained momentum in recent months, as the reality has set in for many that with a new conservative-leaning majority on the US Supreme Court, the entirety of affirmative action is at risk. In July 2018, the US Justice Department effectively abrogated guidelines introduced by the Obama administration that encouraged colleges to promote diversity. In its place, a Bush-era document that advises universities to use 'race-neutral' admissions policies was re-issued.[31] The Trump administration has already declared that it will side against Harvard.[32] An analysis conducted by the New York Times in 2017 found that black and Hispanic students are less represented at America’s elite universities now than they were in the mid-eighties.[33] If affirmative action in college applications were to be rescinded, the number of black and Hispanic students would further fall significantly.

VII. Harvard’s Position

(i) Is Harvard culpable?
When William Fitzsimmons, Harvard’s Dean of Admissions and Financial Aid, was questioned in court as to whether Asian-Americans were disadvantaged in the admissions process, he declined the suggestion of Harvard having a hand in disadvantaging Asian applicants and rejected the perception of bias.[34] Instead he contended that if there was in fact bias, it originated externally, suggesting that there was an inadequacy of support from high-school teachers and guidance-counsellors in the recommendations of Asian students.[35] There is merit in this claim. In the US there remains widespread racial and socio-economic inequality in educational opportunities and this, in effect, is furthering the gap between low-income minority students (with many Asians represented within this category) and the more affluent white middle classes who have access to better resources and thus quality guidance-counselling, among other things.

The US Supreme Court may even have their share of the blame for this. In San Antonio Independent School District v Rodriguez, the Court refused to address the aforementioned disparities when they held that neither a right to education nor a right to address funding inequalities between state districts was recognised in the US Constitution.[36] Indeed, Harvard may not, in fact, be culpable in the current admissions debate.

(ii) How Harvard can win
For Harvard to succeed in this case, they must meet the standards set down in Bakke. Essentially, Harvard must demonstrate to the court that a process of 'strict scrutiny' was satisfied, in that the management of Asian applications was carried out in a way that considered the imperative of achieving a diverse student body and that any outcome that may resemble discrimination towards Asians was unintentional.

Concluding Remarks
Importantly, the result of this case will have no impact on those who gain admission through the legacy programme initiated by Harvard, whereby family of former Harvard alumni have major advantages in being accepted primarily because of their Harvard connections. Neither will this case impact those who gain admission through familial donations to the University and its faculty. Effectively, if the end result is a win for the plaintiffs, those who will be impacted most are of those of Hispanic and black ethnicity, the minority groups who largely suffer most from economic insecurity. Such a ruling would further expand the growing class divisions in the US. This would be the legacy of SFFA’s case.
In order to further the idea of racial inclusion, affirmative action needs to be protected. Racial inclusion brought about by race-conscious policies that have emphasised diversity benefits the US as a nation economically, socially and politically. It will be interesting to see how the case transpires over the coming months, in what will ultimately be a landmark decision.

[1] Mitchell H. Rubinstein, ‘The Affirmative Action Controversy’ (1985), Volume 3, Issue 1, Hofstra Labor and Employment Law Journal, 1.

[2] Brittany N. Ellis, ‘The Harvard Admissions Lawsuit, Explained’ (November 2016), The Harvard Crimson, https://www.thecrimson.com/article/2016/11/7/harvard-admissions-lawsuit-explainer/ accessed January 2019.

[3] P.R. Lockhart, ‘The Lawsuit against Harvard that could change affirmative action in college admissions’ (October 2018), Vox, https://www.vox.com/2018/10/18/17984108/harvard-asian-americans-affirmative-action-racial-discrimination accessed January 2019.

[4] Jeannie Suk Gersen, ‘At trial, Harvard’s Asian problem and a preference for white students from “Sparse County” ’ (October 2018), The New Yorker, https://www.newyorker.com/news/our-columnists/at-trial-harvards-asian-problem-and-a-preference-for-white-students-from-sparse-country accessed January 2019.

[5] ibid.

[6] ibid.

[7] Nick Anderson, ‘What gives you an edge in Harvard admissions? Check the trial evidence’, (October 2018), The Washington Post, https://www.washingtonpost.com/local/education/what-gives-you-an-edge-in-harvard-admissions-check-the-trial-evidence/2018/10/17/c8004068-d17d-11e8-8c22-fa2ef74bd6d6_story.html?utm_term=.0cf75624fc96 accessed January 2019.

[8] Kadhim Shubber, ‘Asian-Americans ‘disadvantaged’ in Harvard admissions’ (August 2018), The Financial Times https://www.ft.com/content/ebdfe852-ac67-11e8-94bd-cba20d67390c accessed January 2019.

[9] Suk Gersen (n 4).

[10] ‘The Harvard Plan That Failed Asian Americans’, The Harvard Law Review (December 2017), https://harvardlawreview.org/2017/12/the-harvard-plan-that-failed-asian-americans/ accessed January 2019.

[11] Harriet Alexander, ‘What is affirmative action in American universities?’ (December 2015), The Telegraph https://www.telegraph.co.uk/news/worldnews/northamerica/usa/12040823/What-is-affirmative-action-in-American-universities.html accessed January 2019.

[12] Rubinstein (n 1).

[13] Harvard Law Review (n 10).

[14] Regents of the Uni v. of Cal. v. Bakke, Legal Information Institute, Cornell Law School.

[15] ibid.

[16] ibid, 279.

[17] Harvard Law Review (n 10).

[18] ibid.

[19] ibid.

[20] Grutter v. Bollinger 539 U.S. 306 (2003), Justia, US Supreme Court.

[21] ibid, 309.

[22] Quick Facts: United States, US Census Bureau, https://www.census.gov/quickfacts/fact/table/US/PST045218 accessed January 2019.

[23] Shera S. Avi-Yonah and Molly C. McCaferty, ‘Asian-American Harvard applicants saw lowest admit rate of any racial group from 1995 to 2013’ (October 2018), The Harvard Crimson, https://www.thecrimson.com/article/2018/10/19/acceptance-rates-by-race/ accessed 2019.

[24] Harvard Law Review (n 10).

[25] Paul Waldman, ‘The case that will destroy affirmative action in higher education’ (October 2018), The Washington Post, https://www.washingtonpost.com/blogs/plum-line/wp/2018/10/18/the-case-that-will-destroy-affirmative-action-in-higher-education/?utm_term=.8713e76bd3a7 accessed January 2019.

[26] Fisher v University of Texas at Austin (2016), supremecourt.gov/opinions.

[27] ibid.

[28] ibid, 5.

[29] Clarence D. Kreiter, ‘A Proposal for Evaluating the Validity of Holistic-Based Admission Processes’, (January 2013), Taylor & Francis Online, https://www.tandfonline.com/doi/full/10.1080/10401334.2012.741548 accessed January 2019.

[30] Richard D. Kahlenberg, ‘A Better Affirmative Action: State Universities that Created Alternative to Racial Preferences’, A Century Foundation Report, https://tcf.org/assets/downloads/tcf_abaa.pdf accessed January 2019.

[31] Shubber (n 8).

[32] Harriet Alexander, ‘Trump administration sides against Harvard in Asian-American affirmative action case’ (August 2018), The Telegraph, https://www.telegraph.co.uk/news/2018/08/30/trump-administration-sides-against-harvard-asian-american-affirmative/ accessed January 2019.

[33] Jeremey Askenas, Haeyoun Park and Adam Pearce, ‘Even With Affirmative Action, Blacks and Hispanics Are More Underrepresented at Top Colleges Than 35 Years Ago’ (August 2017), The New York Times, https://www.nytimes.com/interactive/2017/08/24/us/affirmative-action.html accessed January 2019.

[34] Suk Gersen (n 4).

[35] ibid.

[36] Kimberly Jenkins Robinson, ‘Fisher’s Cautionary Tale and the Urgent Need for Equal Access to an Excellent Education’ (November 2016), Harvard Law Review, https://harvardlawreview.org/2016/11/fishers-cautionary-tale-and-the-urgent-need-for-equal-access-to-an-excellent-education/ accessed January 2019.

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Secondary Schools Competition Winner 2019: The Right to Be Forgotten

Secondary Schools Competition Winner 2019: The Right to be Forgotten

Ciara Walsh, Ard Scoil na nDeise

A legal case which I have heard about, is the joint case between two businessmen in the United Kingdom, who for their privacy are being referred to as NT1 and NT2. These two men have been involved in separate crimes in the past and have served their time in jail for those crimes, but for this case have joined together to go against Google and The Information Commissioner in the High Court.

 

Their case is a part of the right to be forgotten cases involving criminals. The right to be forgotten is a new concept that has been discussed and is being put into use in  the European Union.This issue has come from many Ex criminals wanting to move on and develop their life in an autonomous way. Without constantly being reminded of past mistakes and getting mistreated by fellow citizens in their everyday life due to what they may have done.

 

In theory the right to be forgotten addresses many big problems in this world we live in where we are very dependant on the digital resources we have. Nowadays everything is documented online whether you want it to be or not, so in turn it can prove very difficult to escape or even forget about your past. Also to make this matter worse all of this information online will live on forever in the cloud.

 

Both NT1 and NT2 were aiming for an order directing google to remove certain search results to do with their previous convictions. This was on the grounds that these results included inaccurate, out of date and irrelevant information. Without having any big public interest or otherwise constituted an illegitimate interference with their right to be forgotten, as established in the google spain decision.

 

Google Spain SL Google Inc. v Agencia Española de protección de Datos, Mario Costeja González (2014), is a decision by the court of justice of the European Union. It was stated that the internet search engine operator was responsible for the personal information which appears on web pages published by other third parties. The decision was ruled as a so-called right to be forgotten,even though the Court did not explicitly grant such a right but instead depending on the data subject’s rights concentrating on Article 7- respect for private and family life and Article 8 - protection of personal data, the charter of Fundamental Rights of the European Union. In this case both Article 7 & 8  were breached.

 

 

 

The first man NT1 was caught for conspiracy to defraud customers as a part of a property business, he was released in the early 2000s. His application was first dismissed by the trial judge as he had failed to meet the criteria established by Google as some of his information was still in public interest.

 

As for NT2, Warby J granted the delisting order sought, saying that information about his criminal conviction for authorising illegal surveillance as part of his previous employment has become irrelevant and insufficient under Google spain, as there was no longer a public interest in this information regarding NT2.

 

After this, the length of the sentence and its relative placing on the scale of offences seemed to indicate a restriction of a right to be forgotten. But to those criminal convictions of a relatively less serious nature would still not be sure if their information would be amenable to delisting. This, relatively conservative, position was used in making the decision of the European Court of Human Rights in ML and WW v Germany. In this the court made the decision that Germany’s Federal Court of Justice refusing the opportunity to remover or anonymise material related to the applicants’ previous murder conviction on three different newspaper articles.

 

ML and WW, were both convicted of murdering a popular actor in 1993 and were sentenced to life but got granted probation in 2008. After being released they both went ahead to try get the three articles removed. After already going to Court in 2008, the Federal Constitution Court later declined to consider the constitutional appeals lodged by both ML and WW against the ruling of the federal court of justice. They later went on to apply for relief to the ECtHR alleging the rulings of the german courts had violated their rights under Article 8. The court of human rights dismissed an Article 8 ‘right to be forgotten’ application in respect of the historic publication by the media of information concerning the murder conviction. Later the court conferred by using Article 10 - the freedom of expression, in light of the prevailing and weightier, interest in the public access to information.

 

NT1 Case decision

In coming to a decision on the right to be forgotten, the court used both Google Spain and the EU Working Party guidelines on its application. They came to the conclusion that because NT1 was a public figure due to his role in public life and the information regarding his previous crime was still a matter of public interest. Also because he had spent less time in jail then sentenced to  due to a change in the law. The court rejected NT1’s claim to delisting, misuse of private information and said there could be no question of compensation or damages.

 

 

 

NT2 Case decision

Unlike NT1’s case the court decided to uphold NT2’s claim of inaccuracy on the basis that the relevant article was misleading involving the nature and extent of his crime. The court said it falsely accused NT2 of profiting financially due to his crime. Due to this and the fact NT2’s role in business now is quite different to what he did before serving time makes his past offences less relevant so the court decided to uphold his request of delisting and grant his inaccuracy and right to be forgotten claims. I think that under these circumstances this decision was correct and I agree with it. Due to the fact that this information was not important anymore and was also partially wrong, which means allowing this man and his family to move on and forget about what happened is the right thing to do.

 

Going on these outcomes the judge stated that it will be very likely to see many more cases like this in the future, going on the fact that NT2 succeed as a way to reinforce this idea of the right to be forgotten after serving time for a crime committed.

In my opinion having read about this case and others like this I think that the right to be forgotten should definitely be an option that is allowed to criminals on the smaller scale. Everyone deserves a second chance and we should at least try help them move on and start over after serving their time. After all isn't that what going to jail is about? To help criminals understand what they did wrong and give them the opportunity to make up for their mistakes. So for someone to serve their time only to come out after, to a life a lot worse then they went in, will only lead them to start committing more crimes because they have nothing else. They will feel like they have no reason to focus on bettering themselves due to constantly being reminded of past mistakes. I also think that we should try put less up on social media and in the media about criminals that is not hundred percent true and cannot be backed up with facts and evidence. Unless the information is relevant to the public it should stay some bit private. Also for the family of that convict it is not fair on them to constantly feel like people are talking about them and judging them. It's just not fair in my opinion, I believe in second chances and think most people deserve them.

 

‘Sometimes second chances work out better than the first because you learn for your mistakes’

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Alternative Perspectives Winner 2019: Legislating to Defend the French Language

Alternative Perspectives Winner 2019: Legislating to Defend the French Language

Sarah Greene SS French and Spanish

In November 2018, at the 17th Summit of Francophonie, Ireland was welcomed into an 84-country organisation aimed primarily at promoting French language, Organisation International de la Francophonie (OIF). In the past, French governments and monarchies have endeavoured to ensure French linguistic hegemony, historically by protecting the language against internal and external threats, such as regional languages, colonial languages and more recently, English. As France is soon to be Ireland’s closest EU neighbour, linking Ireland to the French language is seemingly a direct result of Brexit. Yet, the OIF has been heavily criticised for using the organisation as a vehicle for promoting and protecting French and agreeing with stringent regulation of the French language, as French is synonymous with France and has long been tied to the centralization of power, yet France’s language laws have arguably impeded the natural development of French.

 

The French language regulations cover a variety of public domains such as business, the courts, schools and media. The most explicit laws date back Edicts of Villers-Cotterêts in 1539, which ensure solely French could be used in legal proceedings, including courts, judgements and legal documents, mirroring the Romans’ Latin language policy. While the initial aim of this law was to discontinue the use of Latin, in the 19th and 20th centuries it impeded the use and transmission of France’s regional languages. The 1994 Toubon Law, a more modern variation of a decree in 1794, establishes French as the only language to be used in commerce, public spaces, the media and public service, essentially, linguistic censorship occurs. As there is a requirement that the French language be used in all audio-visual content with some exceptions, additionally, a minimum quota-system exists for French songs on the radio. These laws are explicit in their intent, only French is permitted to be spoken and used in France. The Law Bas-Lauriol (1976) which stated that exclusively using foreign words/language in the supply and demand for goods is forbidden further supports this. The extent of these policies can be summed up by President Jacques Chirac’s refusal to amend an EU Charter on Regional and Minority languages, which meant regional language schools needed to remain private and get limited state funding. In 2015, the Senate refused to ratify this charter again. However, apropos of new technologies, French cannot develop specialized words as quickly as new technology is invented, therefore English words enter the French lexicon, such as "hotspot", and by the time France has decided the technology’s name (point d’enregistrement hotspot), the English word has entered the French lexicon.

 

Yet the Toubon Law is worded in sufficiently broad terms to avoid raising legal issue in regards to its application to the cyber-economy. However, the French courts do limit the application of the law to service providers in France, the French Supreme Court has concluded that the Toubon Law adheres to EU law. As if to underline the legal stance, emphasis on customer safety, such as information leaflets or manuals, is predominantly focused on. The ferociousness that France defends its language arguably impedes the natural modernization of the language.

 

Often, languages reflect their societies, yet as it is more common to see women in positions of power, and as acceptance for trans-genders grows, France’s language regulations become more outdated. The Académie Française (French Academy) has long been the lexical guardian of French, yet is often criticized for not allowing the French language to evolve. In regards to women in the workforce, government titles of “le ministre” (minister) and not “la” for example, Mme l’académicien is the title of a woman in the French Academy and is never feminized. As Minister of Women’s Rights in the 1980s, Yvette Roudy pioneered feminization of job titles, despite being mocked by the media, yet she was le ministre (minister). However, it is important to note that the more prestigious the job, the less likely the titular change occurred, ‘secretary’ is feminized but ‘Secretary of State’ does not change and remains masculine. Nowadays, efforts have switched from gender parity to gender-neutral language laws in order to include everyone in France, consequently, Prime Minister Edouard Philippe made gender neutral French illegal to use in official government documents. Comparatively, in Spanish, there has been a linguistic acceptance of gender-neutral terminology in the lexicon, and many politicians are starting to avoid perceived sexism in their speeches. Thus, while the French Academy is strongly against changes to the French language, to safeguard the language’s purity; trans-people, women and French citizens are campaigning for more inclusive language terms (currently French only has two options “he” or “she”, comparatively in English, “they” is used, but plural third person is not gender neutral in French). This has not stopped younger generations attempt to modernize the language themselves, from orthographical changes like écrivan·e·s (writer) to inventing their own pronouns (eul/ile). Additionally, street slang reflects France’s colonial history as Mahgreb loanwords frequently appear in younger generations’ lexicon, without being permitted by the rigid language legislation.

 

The French language has been treated by successive governments of the symbol of France, of national unity, and as a marker of the country’s identity. In 1992, French was reinforced in the Constitution (article 2) of its status of the language of the Republic. Yet, French history has proven that language laws will not impact most French people’s language use, rather the legislation is seen as a symbol of protection of the language of Molière. However, legislating in defence of French has arguably hindered the modernization of the language. The younger generations typically influence language change and modernization, as their language reflects their environment, which is usually different from the older members of the French Academy.

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