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SOME SPEECHES AND PRESENTATIONS.
copyright reserved to author.
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People, Power, and Processes – “speaking truth to power.”
 
 
 
 
 
 
The concept of Ombudsman, with its origin in Nordic Lands, has been adopted and developed throughout the world and is now recognised as being complimentary to, and supportive of, Rule of Law principles but only when it is adequately and properly  mandated  and  conforms to recognised standards of best practice.
 
 
An Office of Ombudsman must be totally independent of the bodies under its remit and, indeed, independent of any departmental secretariat in order to be well positioned to identify systemic issues or abuses with confidence that findings and adjudications will be unfettered, followed, and implemented.
 
An Ombudsman serves the interests of many publics depending on the nature of the organisation under its remit - be it a general Ombudsman overseeing local administration or a bespoke sector Ombudsman.  In some instances, such as the job I did as Ombudsman for the Defence Forces, the Office may have oversight of complaints and grievances and fair treatment within the Forces or an Office of Ombudsman may be established to deal with complaints against the Force as in the case with the Irish Police Force (Garda Siochana) Ombudsman Commission.
 
 
 
It is submitted by many commentators in this field that a Military or Security Sector Ombudsman is a democratic corrective, some go further and contend that it is a democratic imperative.
 
 
 
 
 
 
 
 
It is advocated by the OSCE/ODIHR* that the work of an independent Office of Security Sector or Military Ombudsman can extend to safeguarding the protection of human rights and fundamental freedoms in addition to reviewing desirable administrative practices and complaint handling procedures.
 
In my experience, the effectiveness, in real terms of such an Office depends on both political leadership and, even more significantly, the leadership of the organisation under remit.  In a Common Law setting, it is safe to say that a Statutory Ombudsman contributes to widening access to justice, but this function must be distinguished from the  Judicial system in that a Statutory Ombudsman usually only makes recommendations and is therefore dependent on the moral authority underpinning the establishment of the Office to ensure enforcement of the adjudications. 
 
 
The essential function of an Ombudsman is directly related to the two central elements of accountability - being called to   and being held to account.  This is part of the ‘watch dog’ job that the Ombudsman does on behalf of citizens.  There is universal agreement that there is no point in having a ‘watch dog’ unless it can bite.
 
 
A number of criteria have been proposed for measuring the effectiveness of Ombudsman Institutions.  These include criteria of accessibility; criteria of expertise; access to information and criteria of independence including capacity to initiate investigations; right to operate free from interference, and access to sufficient resources.
 
Of these, independence is of central importance to the work of Ombudsman Offices and is widely argued to be the key ingredient for their effectiveness.  As the Council of Europe argued in a 2003 Report:
 
“His/her duties are best discharged when acting as an independent, impartial intermediary [...].  An Ombudsman ought to give the public in general the confidence that there is an impartial “watchdog” holding government and public administration to account.”
 
 
 
As these words confirm, an Office of Ombudsman is there to put a mirror up to the institutional administration under remit and ‘speak truth to power’.  An Ombudsman is accountable ultimately to the people through Parliament and might, in some instances, report through a Minister but, in essence, the Ombudsman function does not report to Government, as such, in the sense that this is understood to convey a potential censoring or control in any respect of the exercise of its legally based functions.
Many commentators believe that autonomy must be guaranteed by law so that there can be no interference from the Executive.
 
 
As regards operational independence; the functions that the Ombudsman  is empowered to undertake should not be so restricted, in the small print of its enabling legislation, as to render the Office inadequate to properly meet the expectations of society in light of the stated reasons for its establishment in the first place.
 
 
It is well established that the Ombudsman is best placed to keep the enabling legislation under review and seek amendments where deemed necessary.  These submissions from an Ombudsman should be given serious and timely consideration if the Office is to serve its objectives in an effective way. 
 
 
 
After any seasonal scandal escapes from the shadows, we revert to our well practised handwringing default mode.  Expressions of grave concern are chimed out with calls for transparency and accountability as though we had never thought of these before.
 
Do we have defective watchdog functions? Or, do we suffer from those who think that, where we have oversight provisions, they can be defied or undermined as a means of avoiding inconvenient truths and responsibility.
 
 
 
 
 
 
 
 
 
We have legislative protections; we even celebrate the ‘first to do.’ in some instances but, when it comes to the crunch, we do not grasp the nettle.  It appears that, having gained the credit in the first place of announcing  oversight provisions, we think nothing of diluting the powers and compliance with adjudications may become a ‘sparring session’ if the recommendations are inconvenient or uncomfortable.
 
 
 
 
Echoes of Pete Seeger - ‘When will we ever learn?  When will we ever learn?’
 

 
 
 
Paulyn Marrinan Quinn, SC.
 
Founding Ombudsman for the Defence Forces (2005-2012)
Founding Ombudsman – Insurance Ombudsman of Ireland (1992-1998)
 
* Organisation for Security and Cooperation in Europe/ Office of Democratic Institutions and Human Rights.
 




International Women’s Day - ADR Conference.

Women as ADR Leaders

 

Law Society Dublin 8th March 2013


‘Validating ADRs through a wider lens…’




I was so very pleased to accept the invitation to address this Conference - on this special day of celebration...

.

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It is my intention to share my experience with you as the founding Ombudsman for the Defence Forces in Ireland and to reflect on the insights I have gained in establishing this Office- and from the network of Ombudsman Offices for Armed Forces personnel that has developed in the past four years – which I shall discuss later.



May I say at the outset that the experiences I wish to share today are aimed at promoting further discussion about the concept of 'Citizens in Uniform’ and its part in supporting democratic and rule- of- law principles.

The Establishment of the Office of the Ombudsman for the Defence Forces- Ireland.

The Irish Defence Forces (Óglaigh na hÉireann) are a professional Military organisation comprising the Army, Naval Service, Air Corps, and Reserve Defence Force of the Republic of Ireland.

The Irish Defence Forces have a tradition of service in multi-national peace support and humanitarian operations, having served as part of multi-national Forces in Lebanon, Congo, Liberia and Chad, I.S.A.F amongst others. Since 1958, the Irish Defence Forces have maintained a continuous presence on UN peace support missions.

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The Office of Military Ombudsman was established in response to a growing demand, from a number of sources, primarily the Representative Association for
the NCO and other ranks members of the Defence Forces – (PDFORRA), for a transparent and fair oversight of and appeal from the existing internal military redress procedure- (RoW). There was a demand for an Office which was independent from the Defence Forces’ Chain-of-Command and from the Minister for Defence and the Departmental Secretariat.

The decision to establish a statutory and independent Ombudsman for the Defence Forces (ODF) was a historic development and it was acknowledged, by the then Minister for Defence, that the concept of Ombudsman was never more challenged than in the Military context. The work of the Office was built on the pillars and essential elements of Ombudsman best practice which are that the Ombudsman is: accessible, independent, fair, effective, and accountable.

Every member of the Defence Forces has a right to become a member of one of two Representative Associations - PDFORRA (Permanent Defence Force Other Ranks Representative Association) for the enlisted personnel and Non-Commissioned Officers and RACO (Representative Association of Commissioned Officers) for Commissioned Officers. Both organisations are empowered by statute to represent the interests of their members on strictly defined matters regarding pay and terms and conditions of service. PDFORRA was at the forefront of the campaign to establish the Office of the Ombudsman and it is to their lasting credit that they displayed the courage and foresight to persevere for the establishment of the Office. It has been a source of encouragement and pride for me that the inspiration for the Office came, not only from the executive and legislature, but from the serving men and women of the Military itself.

The need for an independent Office to investigate the handling of complaints was made abundantly clear through the findings a Report, conducted by Dr Eileen Doyle, which was commissioned by the Irish Government to look into allegations of systemic bullying and harassment – particularly in respect of female members. The Report entitled "

Challenge of a Workplace" found, as part of an in-depth review of practices and procedures, that there was persuasive evidence of the need for the appointment of an Ombudsman for the Defence Forces and this was the catalyst for bringing forward legislation that had been at Draft Bill stage for some time.

It takes a lot of courage for the leadership of a hierarchical organisation to respond to change and accept oversight from an outside Office with extensive powers of investigation. A military environment is tough and challenging. Soldiers on active service must be ready to respond quickly and professionally to potentially life-threatening events, both to themselves and their colleagues, particularly on overseas duties. Because of this, military training and discipline will often impose a harsh burden on participating personnel. This fact cannot be over-emphasised. However, there is absolutely nothing in military life which
justifies that any individual be singled out, victimised or subjected to abuse or bullying. On the contrary, the team spirit, which is essential to the maintenance of a military organisation, will be undermined and threatened by such practices.

The legislation was extensively debated in the Irish Houses of Oireachtas where it received all party support. In September 2005, I was appointed as the first Ombudsman for the Defence Forces. My job was to establish this new Office and provide it with its identity and ethos. In addition to dealing with cases that were referred to me, from the very first day of establishment, the early months of the operation of my Office were also focused on the effective communication of the role and remit of the ODF to the many publics which the Office was to serve.

I was conscious of the need to ensure that peoples’ expectations did not exceed what I could provide as an Ombudsman. Visiting the Brigades and speaking to members also provided me with valuable feed-back on a wide range of issues.

It is important in the early days that the Ombudsman receives briefings from senior members of the Defence Forces Command and Staff as well as from the Representative Associations. My primary objectives were to learn as much as possible about the organisation and to win trust from all ranks.

It may never be very clear just how much support there was for the Office and the only way to proceed is to endeavour to demonstrate that the Ombudsman is an agent of positive change providing transparency in how decisions are made and determining whether administrative actions and processes are fair.

The powers and function of the Ombudsman of the Defence Forces.

Independent

The legislation which established the Office provides that the Ombudsman will be independent of both the Minister for Defence and the Defence Forces. Independence is perhaps the single most important factor determining the effectiveness of any Ombudsman’s Office. It was that very independence that encourages members of the Armed Forces, to come forward with complaints, to have confidence that the Ombudsman is distinct from the Military hierarchy. It also provides the civilian authorities and citizens with confidence that effective oversight is being exercised over the Armed Forces. An effective Military Ombudsman must be independent in real terms and be perceived as independent.

The Office holder must be neither the "government person" in the Military nor the "military’s person" in the Government. The independence of the Office allowed me to assess the evidence presented and examine the facts of an individual complaint without fear or favour.



Access to the Office is open for members of the Defence Forces who believe that they have been treated unfairly or suffered discrimination or some form of unjust or unlawful treatment. In many ways, the Office was intended to supplement, rather than replace, the existing internal complaints structure. The 1954, Defence Act enshrined that every member of the Defence Forces has a legal right to make a Complaint to a superior officer through the Redress of Wrongs (RoW) process. While there is a commitment to try to resolve the matter locally at Unit level, there is a right, on the part of the Complainant, if s/he is not satisfied with the outcomes, to have the matter referred to a higher authority, moving upwards ultimately to the Chief of Staff, who is the operational head of the Defence Forces. If the member is not satisfied with the way the complaint has been handled, s/he has a right to refer the case by way of appeal to the Ombudsman.

Accessible

In addition to this if, after 28 days of lodging the notification of complaint, there has been no resolution of the matter, the Complainant may approach the Office directly. The Office of the Ombudsman exists as a safety net where the usual channels have not provided satisfactory responses. One additional feature of an Ombudsman Institution for Armed Forces personnel is that it includes a civilian oversight function providing a democratic corrective in requiring accountability for administrative and human resource management practices from the Military Authorities.


However, in the last number of years, there has been particular attention paid to the other significant aspect of the Ombudsman’s role in protecting the Human Rights and fundamental freedoms of Armed Forces personnel.

Through the work of the Office of Democratic Institutions and Human Rights at the Organisation for Security and Co-operation in Europe (OSCE/ODIHR), in conjunction with the Geneva-based Centre for Democratic Control of Armed Forces (DCAF), a Handbook was published, in 2008, setting out the arrangements in a number of States for protecting members’ fundamental rights. This Handbook has been published in a number of languages, including Russian, which is a very positive indication of the influence of such a piece of work. The Handbook has been updated and, last year, the work was extended by DCAF through a further Handbook to illustrate how the varying Military Ombudsman arrangements provide oversight and redress for Armed Forces Personnel.

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If an Ombudsman is to be effective, the Office must be sufficiently empowered, resourced, and supported. The legislation which established my former Office grants extensive powers of investigation with access to all documents and Military installations relevant to the case under review. However, the Act also limits the powers in certain respects such as investigating matters involving security or military operations. Similarly, the organisation, structure, and deployment of the Defence Forces are beyond the Ombudsman’s remit because,of course, operational matters are for the command of the Defence Forces and policy is for the Government.

The Early Experience and Challenges.

Fair

Since becoming operational, the Office has proved to be a significant catalyst for reform of a wide range of administrative and human resource management practices within the Defence Forces.

Within the first six months of operation, I was heartened to find that the Defence Forces implemented reforms, as a result of my recommendations, with immediate effect, such as changes in selection procedures with respect of Overseas Service and Career Courses and a wide range of other areas of maladministration reported by me were addressed.

Accountable.

It was a reassuring sign that my Office had won the trust and confidence of Defence Forces personnel of all ranks, to record in 2007, the second year of operation that more than 20% of cases eligible for investigation came from the rank of Lieutenant, Commandant, and Lt. Colonel.



The Office is accountable and must produce an Annual Report which I presented to our Parliament every year. I used the Annual Reports to give account of how the Office works – not just by presenting statistical information but by including anonymous summaries of a cross-section of the Cases (with the written permission of the Complainants) that I had Adjudicated during the preceding year.

It is well established universally that the Office of Ombudsman must ‘

practice what it preaches’ so accountability and transparency is an inherent part of the work of any proper Ombudsman Institution.

The Final Reports I issued, not only adjudicated in respect of an individual member’s case, but my investigations also served to highlight areas of Defence Forces’ systemic, administrative, and human resource management practices in need of reform.

By 2009, the then Minister for Defence stated in the Parliament that the input of the Ombudsman had assisted the Defence Forces in the revision of a number of Human Resource Management practices. The Minister formally recorded that recommendations in the Ombudsman’s Reports had also informed the revision of selection processes for promotion, a new version of which was then being negotiated with the Representative Associations through the Conciliation and Arbitration Scheme through which terms and conditions are negotiated between the Civilian and Military sides.

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Effective.

I actively conducted an audit on the implementation of commitments for reform given by the Military Authorities and the Minister for Defence in response to my recommendation in relation to administrative and systemic practices and individual remedies. My recommendations have been a catalyst for reform across a wide range of areas including access by members to information on their personal files, more transparent selection/ interview procedures and a review of performance appraisal assessments. It is safe to say there have been changes, which have had a positive impact on the daily working lives of members of the Defence Forces and their families.

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The Office of a designated Military Ombudsman: The International Dimension.

In May 2009, I was invited to participate in the inaugural International Conference of Ombudsman Institutions for the Armed Forces. The Conference was held in Berlin on the occasion of the 50th anniversary of the Office of the German Parliamentary Commissioner for the Armed Forces. This timely gathering was initiated by the then Parliamentary Commissioner Mr. Reinhold Robbe in co-operation with the Geneva Centre for the Democratic Control of Armed Forces (DCAF). The Conference was attended, not only by representatives of the many Military Ombudsman Offices, but also by representatives from States who had expressed an interest in learning more about the Institution. For those who are interested in this area may I refer you to the work of this even and the two subsequent meetings of this group in Vienna in 2010, Belgrade in 2011, and Canada in 2012 (ICOAF) through a link on DCAF website on my former Office’s website –www.odf.ie

In October 2009, I was pleased to deliver an address to the United Nations Training School at the Military College, in the Irish Defence Forces Training Centre, to a group of delegates which included members of Armed Forces and Security Forces from Spain, Zambia, Sweden, Egypt, two Officers from the Irish Police Force - together with members from the Command and Staff Unit of the Irish Defence Forces and from the Reserve Defence Force. Participants were engaged in a Course entitled ‘

Human Rights for Military Personnel in Peace Support Operations – International Train the Trainers Course’ which was part of the United Nations Training School in Ireland (UNTSI) programme. It was clear to me then that the subject of Human Rights for members of Armed Forces was now gaining the recognition that it deserves by forming part of United Nations Training Courses at this level.

UNTSI is the Irish Defence Forces Centre of excellence for Human Rights training and offers this Course in conjunction with the United Nations Office of the High Commissioner for Human Rights (UNCHR). The overall objective is to provide participants with an understanding of the legal and operational Human Rights issues and the possible roles and functions of Military peacekeepers to promote and protect Human Rights in the mission area and to enable them to provide high-level training on these issues.

I had the pleasure of addressing the delegates on the subject of "Ensuring that the guardians of the peace are themselves the beneficiaries of fundamental freedoms and human rights"

My belief in the importance of this subject had been reinforced, shortly after I took up the job as Ombudsman for the Defence Forces, when I received an invitation to become a member of the Expert Group which was convened by the Organisation for Security and Co-Operation in Europe (OSCE), Office for Democratic Institutions and Human Rights (ODIHR) (OSCE/ODIHR) in conjunction with the Geneva Centre for the Democratic Control of Armed Forces (DCAF) to compile a Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel. The expert group met in Warsaw in December of 2006 and reviewed the vital chapters which covered, amongst others, subjects such as civil and political rights, military unions, and representative associations, conscientious objection to military conscription and service, complaints-handling in the Armed Forces, discipline, and military justice.

It was a privilege to be invited to speak at the launch of the ODIHR /DCAF  Handbook on the 28th of May 2008 in Vienna. I offered to assist – and share experience with - other States who were considering establishing such an Office. Over the years, we received enquiries and delegations from many Countries and provided guidance to them. This Handbook provides an overview of a diverse range of legislation, policies, and mechanisms for ensuring the protection and enforcement of the Human Rights and Fundamental Freedoms of Armed Forces personnel in the States included in the review. The study presents examples from across the OSCE region of practices that have proved successful. It contains recommendations for measures that States should take in order to ensure that policies and practices are in full compliance with international Human Rights standards and OSCE human dimension commitments in its Code of Conduct on Politico- Military Matters.

The Handbook is aimed at providing a reference point to those who play a role in promoting, protecting and enforcing the Human Rights of Armed Forces personnel, such as parliamentarians, government officials, policy makers, military personnel, judges, professional military associations, and non-governmental organisations. It was hoped that the publication would encourage all interested parties to take the necessary measures to ensure that Armed Forces personnel are able to enjoy their full rights as citizens. In the acknowledgement of this principle, the concept was referred to as ‘citizens in uniform’.

The Handbook reveals that while Austria, Germany, Norway and Ireland have a specific Office of Military Ombudsman, in several countries such as Denmark, Serbia, or Poland, responsibility for the Military complaints falls under the remit of a general administrative Human Rights Commissioner or Ombudsman. While this approach has the advantage of bringing Military affairs to the centre of administrative oversight, I remain convinced that the appointment of a dedicated Military Ombudsman is to be preferred. I believe that an Ombudsman with sole responsibility for the Military will more readily establish the trust of the serving personnel and will provide a single, defined point of contact for both Government and the Armed Forces. The establishment of a dedicated Military Ombudsman will also send a strong message that the needs of the Armed Forces are taken seriously by the State.

The precise powers and responsibilities of a Military Ombudsman will differ from country to country. For example, the German Ombudsman may receive complaints as an alternative to the internal complaints system. This differs from the Irish model where the Complainant must first have sought redress through the internal Military complaints handling system – in other words, the serving soldier must have attempted to exhaust due process available before referring the matter to the Ombudsman as an independent Office of appeal. It may be argued that the particular model of Military Ombudsman adopted by a State should be responsive to the unique culture and environment in which the Ombudsman is to serve, however the founding requirements of true independence and impartiality cannot be sacrificed if the Office is to be truly effective.

In recognising that there is no single applicable model and that the particularities of individual contexts will always influence a given country’s approach, the Handbook provides insights to OSCE participating States by describing models that have proved to be successful in a number of countries. The Handbook is not aimed at setting new standards; instead, it seeks to contribute to the effective implementation of existing standards by presenting a number of models, or best practices, that demonstrate how Military structures can successfully integrate Human Rights and fundamental freedoms without causing any threat of disruption to the requirements and disciplines of Military Service in a chain-of-command structure.

In the preface to the original Handbook it states:

‘Armed Forces are an integral part of a democratic State. By fulfilling their defence of national-security functions, the Armed Forces play a key role in enabling a secure environment that allows us to enjoy the inalienable rights and freedoms to which we are all entitled as human beings. As representatives of the State structure, Armed Forces personnel are bound to respect Human Rights and International Humanitarian Law in the exercise of their duties…’

There are grounds for confidence in the view that when the rights of members of Armed Forces are guaranteed within their own Institutions, Armed Forces personnel may be more likely to uphold those rights when engaged on active service or in their own Units and Barracks.

The changing nature of Military Service, which increasingly includes international missions, requires that soldiers, as part of their overall training, have a solid ethical outlook based on human dignity, Human Rights, morality, and tolerance. Part of the attainment of this goal is to recognise and treat soldiers as possessing the same rights and obligations as any other citizen. Excluding military personnel, in full or in part, from participating in the society in which they live and work, by restricting the application of any of their Human Rights, serves not only to deprive them of their fundamental rights but also provides no incentive for them to engage with the cherished principles and concepts of Civil and Human Rights

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The Military Ombudsman and the "Citizen in Uniform" concept



An Armed Forces Ombudsman will perform many functions, which range from monitoring the internal complaints handling processes and ensuring that every complaint is satisfactorily processed within the Military complaints procedures to providing an independent appeals mechanism for those not satisfied with the handling or outcome of their complaints. The Ombudsman provides an independent and autonomous Office of oversight and redress and, being complaint focused, an Ombudsman is well placed to identify systemic issues which may arise in large organisations, particularly those with a hierarchical structure and a long established culture which is rooted, for the most part, in secrecy. This is an environment in which abuses can thrive if there is no Office of oversight with the power to shine a light into the darker corners and expose any wrong-doing, abuse of power or unfair practices.

If we keep in mind the preamble to the Universal Declaration of Human Rights where it is emphasised that a common understanding of the avowed rights and freedoms was of the greatest importance to bring about the full realisation of what we were signing up to in the Pledge, we are left in no doubt about the need to provide a meaningful understanding of the implications of the protection of Human Rights and fundamental freedoms to members of our Armed Forces, who have the job of guarding our rights and freedoms and supporting our States in aid of civil power.



In a democracy it is accepted that the Government must exercise control of the Armed Forces. Civilian oversight of the Armed Forces is a vital aspect of a modern democratic State. The Government will be responsible not only for the actions of the Armed Forces but also for ensuring that it is fit for any of the roles they may be called upon to perform. The Government will, for example, be responsible for ensuring that the Armed Forces are paid and that the equipment is up to standard. The Government of a State has a responsibility to both soldier and civilian to ensure that the Armed Forces are effective and well managed. The discipline and morale of the Armed Forces therefore is a matter, not only for the Armed Forces themselves, but for the State.

One of the core objectives of the ’Handbook on Fundamental Freedoms and Human Rights‘ for members of Armed Forces is the "Citizen in Uniform" approach which carries with it the belief that Armed Forces personnel, whether professional or conscripted, are entitled to the same rights and protections as all other persons subject to certain limitations imposed by Military Service.

Military life brings with it certain obligations and duties which distinguish it from other professions, not least because the soldier is expected to risk being in the way of harm on behalf of the protection of the people and the State. Of course, Military discipline is vital to the continued effectiveness of the Armed Forces. However, the institution of the Military Ombudsman is a necessary buttress to internal administrative and human resource procedures, ensuring they are fair and consistent. The particular constraints of Military life, such as discipline and collegiality, do not mean that human dignity may be denied to serving personnel, rather it means that in upholding that dignity the peculiar aspects of Military life must be acknowledged.

It is difficult to conclude that, by the mere fact of joining the Armed Forces voluntarily, a person has consented to all the treatment to which he is subjected in the Armed Forces, or that he has waived those of his Human Rights available to him as a citizen if his human dignity has been undermined. He will not have waived any specific Human Rights by enlisting although those rights must be considered in a military context.1


Rowe, Peter, The impact of Human Rights Law on the Armed Forces, Cambridge University Press, Cambridge, United Kingdom. P 62

The need for fair and accountable complaints processes within the Armed Forces is vital, not only on a theoretical basis, but for very practical reasons of recruitment and staffing. A non-conscript army must compete for recruits with civilian organisations who will often be in a position to offer more attractive remuneration. Military training is expensive and involves imparting some skills which can be directly transferable to a civilian context. This is particularly the case with highly skilled or technical military professions. Members of the Armed Forces must be attracted to join the service and encouraged to remain after their initial training. In this respect the army must behave like any other large employer and make human resources management a core aspect of its work. Peter Rowe, whose book I cite and reference below, states:

‘Where recruitment to the Armed Forces is purely on a voluntary basis the government will need to pay attention to the terms and conditions of service in the Armed Forces, including the harshness or otherwise of the discipline system, if it is to maintain recruitment at the level it requires.’



Rowe, Peter, The impact of Human Rights Law on the Armed Forces, Cambridge University Press, Cambridge, United Kingdom. P 62

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Conclusions

Since December 2005, the Office of Ombudsman for the Defence Forces in Ireland has provided an independent, objective, and accessible means of redress for individual members and former members of the Defence Forces in addition to maintaining oversight of administrative and systemic practices.

The work of an independent Ombudsman in overseeing the provision of services and in the protection of rights is correctly perceived to represent a championing of standards of good practice within Institutions over which an Ombudsman has jurisdiction. When an Ombudsman’s Office is established it may bring about immediate visible reforms but, as time passes, ongoing benefit it may accrue by virtue of the Office serving as a standard–bearer for good administrative practices. The presence of a properly empowered Office of independent oversight can influence how an Institution conducts the management of its people and promotes acceptable standards in the treatment of its members. I emphasise properly empowered because to be effective, in real terms, the Ombudsman must be supported by sufficient powers to thoroughly investigate complaints and to do so requires a right of access to documents, installations, and the power to require witnesses to attend to give information. It is also essential that no member of an Armed Force has reason to fear recrimination or adverse actions if s/he pursues a complaint.

This is especially true as regards an Ombudsman dealing with military grievances. For instance on the website of the former German Parliamentary Commissioner for the Armed Forces, Reinhold Robbe, he stated:

‘Experience has shown that the very existence of an independent Commissioner to whom any member of the Armed Forces can have recourse has a positive effect on leadership behaviour



 http://www.bundestag.de/htdocs_e/bundestag/commissioner/proposals/index.html

In my experience, the effectiveness in real terms, of such an Office depends on both political leadership and the leadership of the Institution over which an
Ombudsman has oversight. I believe it is safe to say that the presence of an Ombudsman widens access to justice in the true sense of those words. Of course, this function must be distinguished from the Judicial system and it is normally the case that a statutorily based Ombudsman merely makes findings and recommendations and is therefore dependent on the moral authority underpinning the establishment of the Office to ensure enforcement of remedies and compliance with recommendations.

The founding Ombudsman for the Armed Forces in Canada, Mr. Andre Marin, referred to this as "moral persuasion." The Ombudsman not only depends on the willingness of the Institution under his or her remit to comply with the recommendations, but also to have had the foresight to envisage the long-term benefits to the Institution and to society as a whole. There can be no doubt that leadership and courage are essential for meaningful institutional change and reform. I include courage because that is what it takes to permit an outsider to have oversight, to have the right to enquire, probe and criticise the way you are administering your organisation or institution and make recommendations that you change your practices and do things differently.

Accepting change in the approach to handling interpersonal disputes or grievances within an Institutional workplace, particularly those with a distinct culture, requires leaders with vision, foresight, and moral courage. Without a


commitment to change in the long- term interest of an organisation, little would ever change for the better. My own experience can safely attribute a significant part of the progress of the work of my Office to the leadership of the senior Command and Staff in the Irish Defence Forces. Since I was first appointed as Ombudsman, I experienced not only open-mindedness but also a willingness to engage with positive change from the three Chiefs of Staff who held the role in that time and who contributed immensely to supporting the objectives of the Office of ODF. These Chiefs of Staff demonstrated an over-riding concern for the well-being and fair treatment of those under their care and command. In addition to this, they recognised the long-term benefit that flows from reforms of practices that give rise to grievance and perceptions of unfairness.

As I have already mentioned, one of the reasons for the establishment of an Ombudsman was a recognition that people who choose to serve their country in the Defence Forces, with all the attendant risks that may present, deserve to have their dignity and rights respected in the workplace, regardless of the unique requirements of Military Service in a chain-of- command structure. It is essential that the presence of an Ombudsman is seen to augment and support progressive plans for the modernisation of an army and not in any way to diminish the command structure. My Office has strived to play a part in that pursuit in Ireland and has engaged a valuable ADR process  in so doing.

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Former Founding Ombudsman for the Defence Forces- Ireland (2005-2012)

"In giving rights to others which belong to them,

We give rights to ourselves and to our Country."


J.F.K.



Some reading and references.

Abraham Henry J, (1960) A People’s Watchdog against the Abuse of Power,

Public Administration Review, Vol. 20 No. 3 pp. 152 - 157

Gardiner, Leslie,

the Royal Oak Courts Martial. (1965) London, William Blackwood.

Geraghty Michael (2010) The Soldier – A Citizen in Uniform: Is the Irish Defence Forces ahead of the Game? MA (LMDS,) National University of Ireland Maynooth, Ireland.

Longmore, Paul K.,

the Invention of George Washington, University Press of Virginia, Virginia, USA, 1999

McStay Kevin (2009), More

Right Than Wrong? An Examination of the Grievance Procedures in the Irish Defence Forces, MA (LMDS,) National University of Ireland Maynooth, Ireland

OSCE/ODIHR (2008)

Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel, OSCE Office for Democratic Institutions and Human Rights, Warsaw, Poland

Reif Linda C. (2004)

the Ombudsman Good Governance, and the International Human Rrights System, Brill NV, Leiden, the Netherlands.

Rowe, Peter,

The impact of Human Rights Law on the Armed Forces, Cambridge University Press, Cambridge, United Kingdom 27

Sherman Edward F., (1973) Military Justice Without Military Control,

The Yale Law Journal, Vol. 82 No.7 pp. 1408 -1409

Stillman Richard, (1974) Racial Unrest in the Military: The Challenge and the Response,

Public Administration Review, Vol. 34, No. 3 pp. 221 -229

Websites:

www.odf.ie

(Irish Ombudsman for the Defence Forces)

www.ombudsman.forces.gc.ca/index-eng.asp

(Canadian Military Ombudsman)

www.bundestag.de/bundestag/wehrbeauftragter/index.html

(German Military Ombudsman)

http://military.ie/

(Irish Defence Forces)

www.dcaf.ch/

Geneva Centre for the Democratic Control of Armed Forces

www.euromil.org

(European Organization of Military Associations)


 


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

OSCE/ODIHR - Expert Meeting on Human Rights Monitoring in the Armed Forces.
4-6 March 2013, Warsaw, Poland.
 
How can an Office of Ombudsman for the Armed Forces help to protect the Human Rights and Fundamental Freedoms of Armed Forces Personnel.
 
 
 
 
I was so very pleased to accept the invitation to address this Conference in Warsaw.  As I shall mention in the course of my short address to you, it was here in your Organisation in Warsaw, in the December of 2006, at the convening of the Expert Group to write the Handbook on Fundamental Freedoms and Human rights for Armed Forces Personnel, that my interest in this area of work was inspired – shortly after I had taken up my appointment as the first Ombudsman for the Defence Forces in my country.
                                        ~~~~~~
I would like to emphasise, from the outset, that it is not my intention to give the impression that I have all the answers and that our way is the best way.  Rather, it is my objective to share my experience with you as the founding Ombudsman for the Defence Forces in Ireland and to reflect on the insights I have gained in establishing this Office and from the network of Ombudsman Offices for Armed Forces personnel that has developed in the past four years – which I shall discuss later.
 
May I say at the outset that the experiences I wish to share today are aimed at promoting further discussion about the concept of ‘Citizens in Uniform’ and its part in supporting democratic and the rule- of- law principles and concepts.
 
                              ~~~~~~~~~~~~~~~~~~~~~~~~~
 
 
(**
The Establishment of the Office of the Ombudsman for the Defence Forces- Ireland.
 
The Irish Defence Forces (in Irish Óglaigh na hÉireann) are a professional
 
Military organisation comprising the Army, Naval Service, Air Corps, and
 
Reserve Defence Force of the Republic of Ireland.  The President of Ireland is
 
nominally the Commander-in-Chief of the Defence Forces but, in practice, it
 
answers to the Irish Parliament through the Minister for Defence.  Ireland has
 
never colonised or invaded any other State.
 
The Irish Defence Forces have a tradition of service in multi-national peace support and humanitarian operations, having served as part of multi-national Forces in Lebanon, Congo, Liberia and Chad, ISAF amongst others.  Since 1958, the Irish Defence Forces have maintained a continuous presence on UN peace support missions.)
                                      ~~~~~~~~~
 
The Office of Military Ombudsman was established in response to a growing demand, from a number of sources, primarily the Representative Association for the NCO and other ranks members of the Defence Forces, for a transparent and fair oversight of and appeal from the existing redress procedure.  There was a demand for and Office which was independent from the Defence Forces’ Chain-of-Command and from the Minister for Defence and the Departmental Secretariat.
 
The decision to establish a statutory and independent Ombudsman for the Defence Forces (ODF) was a historic development and it was acknowledged that the concept of Ombudsman was never more challenged than in the Military context.  The work of the Office was built on the pillars and essential elements of Ombudsman best practice which are that the Ombudsman is: accessible, independent, fair, effective, and accountable.
 
Every member of the Defence Forces has a right to become a member of one of two Representative Associations - PDFORRA (Permanent Defence Force Other Ranks Representative Association) for the enlisted personnel and Non-Commissioned Officers and RACO (Representative Association of Commissioned Officers) for Commissioned Officers.  Both organisations are empowered by statute to represent the interests of their members on strictly defined matters regarding pay and terms and conditions of service.  PDFORRA was at the forefront of the campaign to establish the Office of the Ombudsman and it is to their lasting credit that they displayed the courage and foresight to persevere for the establishment of the Office.  It has been a source of encouragement and pride for me that the inspiration for the Office came, not only from the executive and legislature, but from the serving men and women of the military itself.
 
The need for an independent Office to investigate the handling of complaints was made abundantly clear through the findings a Report commissioned by the Irish Government to look into allegations of systemic bullying and harassment.  The Report entitled “Challenge of a Workplace” found, as part of an in-depth review of practices and procedures, that there was persuasive evidence of the need for the appointment of an Ombudsman for the Defence Forces and was the catalyst for bringing forward legislation that had been at Draft Bill stage for some time.
 It takes a lot of courage for the leadership of a hierarchical organisation to respond to change and accept oversight from an outside Office with extensive powers of investigation.  A military environment is tough and challenging.  Soldiers on active service must be ready to respond quickly and professionally to potentially life-threatening events, both to themselves and their colleagues, particularly on overseas duties.  Because of this, military training and discipline will often impose a harsh burden on participating personnel.  This fact cannot be over-emphasised.  However, there is absolutely nothing in military life which justifies that any individual be singled out, victimised or subjected to abuse or bullying.  On the contrary, the team spirit, which is essential to the maintenance of a military organisation, will be undermined and threatened by such practices.
 
The legislation was extensively debated in the Irish Houses of Parliament where it received all party support.  In September 2005, I was appointed as the first Ombudsman for the Defence Forces.  My job was to establish this new Office and provide it with its identity and ethos.  In addition to dealing with cases that were referred to me, from the very first day of establishment, the early months of the operation of my Office were also focused on the effective communication of the role and remit of the ODF to the many publics which the Office was to serve.
 
I was conscious of the need to ensure that peoples’ expectations did not exceed what I could provide as an Ombudsman.  Visiting the Brigades and speaking to members also provided me with valuable feed-back on a wide range of issues.
 
It is important in the early days that the Ombudsman receives briefings from senior members of the Defence Forces Command and Staff as well as from the Representative Associations.  My primary objectives were to learn as much as possible about the organisation and to win trust from all ranks.
It may never be very clear just how much support there was for the Office and the only way to proceed is to endeavour to demonstrate that the Ombudsman is an agent of positive change providing transparency in how decisions are made and determining whether administrative actions and processes are fair.
 
The powers and function of the Ombudsman of the Defence Forces.
 
The legislation which established the Office provides that the Ombudsman will be independent of both the Minister for Defence and the Defence Forces.  Independence is perhaps the single most important factor determining the effectiveness of an Ombudsman’s Office.  Independence encourages members of the Armed Forces, who come forward with complaints, to have confidence that the Ombudsman is distinct from the Military hierarchy.  It also provides the civilian authorities and citizens with confidence that effective oversight is being exercised over the Armed Forces.  An effective Military Ombudsman must be independent in real terms and be perceived as independent.
 The Office holder must be neither the “government person” in the Military nor the “military’s person” in the Government.  The independence of the Office allowed me to assess the evidence presented and examine the facts of an individual complaint without fear or favour.
 
Access to the Office is open for members of the Defence Forces who believe that they have been treated unfairly or suffered discrimination or some form of unjust or unlawful treatment.  In many ways, the Office was intended to supplement, rather than replace, the existing internal complaints structure.  The 1954, Defence Act enshrined that every member of the Defence Forces has a legal right to make a Complaint to a superior officer through the Redress of Wrongs process.  While there is a commitment to try to resolve the matter locally at Unit level, there is a right, on the part of the Complainant, if s/he is not satisfied with the outcomes, to have the matter referred to a higher authority, moving upwards ultimately to the Chief of Staff, who is the operational head of the Defence Forces.  If the member is not satisfied with the way the complaint has been handled, s/he has a right to refer the case by way of appeal to the Ombudsman.
In addition to this if, after 28 days of lodging the notification of complaint, there has been no resolution of the matter, the complainant may approach the Office directly.  The Office of the Ombudsman exists as a safety net where the usual channels have not provided satisfactory responses.  One additional feature of an Ombudsman Institution for Armed Forces personnel is that it provides a civilian oversight function providing a democratic corrective in requiring accountability for administrative and human resource management practices from the Military Authorities. 
However, in the last number of years, there has been particular attention paid to the other significant aspect of the Ombudsman’s role in protecting the Human Rights and fundamental freedoms of Armed Forces personnel.
Through the work of the Office of Democratic Institutions and Human Rights at the Organisation for Security and Co-operation in Europe (OSCE/ODIHR), in conjunction with the Geneva based Centre for Democratic Control of Armed Forces (DCAF), the Handbook, I referred to earlier, was published, in 2008, setting out the arrangements in a number of States for protecting members’ fundamental rights.  This Handbook has been published in a number of languages which is a very positive indication of the influence of such a piece of work.  May I refer you to the website of DCAF. The Handbook has been updated and last year was consolidated by DCAF to illustrate how the varying Ombudsman schemes provide oversight and redress for Armed Forces Personnel.
                                      ~~~~~~~~~~
If an Ombudsman is to be effective, the Office must be sufficiently empowered, resourced, and supported.  The legislation which established my Office grants extensive powers of investigation with access to all documents and Military installations relevant to the case under review.  However, the Act also limits the powers in certain respects such as investigating matters involving security or military operations.  Similarly, the organisation, structure, and deployment of the Defence Forces are beyond the Ombudsman’s remit because, of course, operational matters are for the command of the Defence Forces and policy is for the Government.
 
 
The Early Experience and Challenges.
 
Since becoming operational, the Office has proved to be a significant catalyst for reform of a wide range of administrative and human resource management practices within the Defence Forces.
 
Within the first six months of operation, I was heartened to find that the Defence Forces implemented reforms, as a result of my recommendations, with immediate effect, such as changes in selection procedures with respect of Overseas Service and Career Courses and a wide range of other areas of maladministration reported by me were addressed.
 
It was a reassuring sign that my Office has won the trust and confidence of Defence Forces personnel of all ranks, to record in 2007, the second year of operation that more than 20% of cases eligible for investigation came from the rank of Lieutenant, Commandant, and Lt. Colonel.
The Office is accountable and must produce an Annual Report which I presented to our Parliament every year.  I used the Annual Reports to give account of how the Office works – not just by presenting statistical information but by including anonymous summaries of a cross-section of the Cases (with the
prior permission of the Complainants) that I had Adjudicated during the preceding year.
 
It is well established universally that the Office of Ombudsman must ‘practice what it preaches’ so accountability and transparency is an inherent part of the work of any proper Ombudsman Institution.
 
The Final Reports I issued, not only adjudicated in respect of an individual member’s case, but my investigations also served to highlight areas of Defence Forces’ systemic administration and human resource management practices in need of reform.
By 2009, the then Minister for Defence stated in the Parliament that the input of the Ombudsman had assisted the Defence Forces in the revision of a number of Human Resource practices.  The Minister formally recorded that recommendations in the Ombudsman’s Reports had also informed the revision of selection processes for promotion, a new version of which was then being negotiated with the Representative Associations through the Conciliation and Arbitration Scheme through which terms and conditions are negotiated between the Civilian and Military sides.
                                      ~~~~~~~~~~~~
I actively conducted an audit on the implementation of commitments for reform given by the Military Authorities and the Minister for Defence in response to my recommendation in relation to administrative and systemic practices and individual remedies.  My recommendations have been a catalyst for reform across a wide range of areas including access by members to information on their personal files, more transparent selection/ interview procedures and a review of performance appraisal assessments.  It is safe to say there have been changes, which have had a positive impact on the daily working lives of members of the Defence Forces and their families.
                                      ~~~~~~~~~~~~
The Office of a designated Military Ombudsman: The International Dimension.
 
In May 2009, I was invited to participate in the inaugural International Conference of Ombudsman Institutions for the Armed Forces.  The Conference was held in Berlin on the occasion of the 50th anniversary of the Office of the German Parliamentary Commissioner for the Armed Forces.  This timely gathering was initiated by the then Parliamentary Commissioner Mr. Reinhold Robbe in co-operation with the Geneva Centre for the Democratic Control of Armed Forces (DCAF).  The Conference was attended, not only by representatives of the many Military Ombudsman Offices, but also by representatives from States who had expressed an interest in learning more about the institution.  May I refer you to the work of this event and the two subsequent meetings of this group in Vienna in 2010 and Belgrade in 2011, and Canada in 2012 (ICOAF) through a link on DCAF website on my former Office’s website – www.odf.ie
 
In October 2009, I was invited to deliver an address to the United Nations Training School at the Military College, in the Irish Defence Forces Training Centre, to a group of delegates which included members of Armed Forces and Security Forces from Spain, Zambia, Sweden, Egypt, two Officers from the Irish Police Force - together with members from the Command and Staff Unit of the Irish Defence Forces and from the Reserve Defence Force.  Participants were engaged in a Course entitled ‘Human Rights for Military Personnel in Peace Support Operations – International Train the Trainers Course’ which was part of the United Nations Training School in Ireland (UNTSI) programme.  It was clear to me then that the subject of Human Rights for members of Armed Forces was now gaining the recognition that it deserves by forming part of United Nations Training Courses at this level.
 
UNTSI is the Irish Defence Forces Centre of excellence for Human Rights training and offers this Course in conjunction with the United Nations Office of the High Commissioner for Human Rights (UNCHR).  The overall objective is to provide participants with an understanding of the legal and operational Human Rights issues and the possible roles and functions of Military peacekeepers to promote and protect Human Rights in the mission area and to enable them to provide high-level training on these issues.
I had the honour of addressing the delegates on the subject of:
 ‘Ensuring that the guardians of the peace are themselves the beneficiaries of fundamental freedoms and human rights’
As I have already mentioned, my belief in the importance of this subject had been reinforced, shortly after I took up the job as Ombudsman for the Defence Forces, when I received an invitation to become a member of the Expert Group which was convened by the Organisation for Security and Co-Operation in Europe (OSCE), Office for Democratic Institutions and Human Rights (ODIHR) (OSCE/ODIHR) in conjunction with the Geneva Centre for the Democratic Control of Armed Forces (DCAF) to compile a Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel. The expert group met in Warsaw in December of 2006 and reviewed the vital chapters which covered, amongst others, subjects such as civil and political rights, military unions, and representative associations, conscientious objection to military conscription and service, complaints-handling in the armed forces, discipline, and military justice.
 
It was a privilege to be invited to speak at the launch of the Handbook on the 28th of May 2008 in Vienna.  This Handbook provides an overview of a diverse range of legislation, policies, and mechanisms for ensuring the protection and enforcement of the Human Rights and fundamental freedoms of Armed Forces personnel in the States included in the review.  The study presents examples from across the OSCE region of practices that have proved successful.  It contains recommendations for measures that States should take in order to ensure that policies and practices are in full compliance with international Human Rights standards and OSCE human dimension commitments in its Code of Conduct on Politico- Military Matters.
 The Handbook is aimed at providing a reference point to those who play a role in promoting, protecting and enforcing the Human Rights of Armed Forces personnel, such as parliamentarians, government officials, policy makers, military personnel, judges, professional military associations, and non-governmental organisations.  It was hoped that the publication would encourage all interested parties to take the necessary measures to ensure that Armed Forces personnel are able to enjoy their full rights as citizens.  In the acknowledgement of this principle, the concept was referred to as ‘citizens in uniform’. 
 
The Handbook reveals that in several countries, such as Denmark, Serbia, or Poland, responsibility for the Military oversight falls under the remit of a general administrative Human Rights Commissioner or Ombudsman.  While this approach has the advantage of bringing Military affairs to the centre of administrative oversight, I remain convinced that the appointment of a dedicated Military Ombudsman is to be preferred.  I believe that an Ombudsman with sole responsibility for the Military will more readily establish the trust of the serving personnel and will provide a single, defined point of contact for both Government and the Armed Forces.  The establishment of a dedicated Military Ombudsman will also send a strong message that the needs of the Armed Forces are taken seriously by the State.
 
The precise powers and responsibilities of a Military Ombudsman will differ from country to country.  For example, as we can see from the presentation from Mr Lothar Mueller today, the German Ombudsman may receive complaints as an alternative to the internal complaints system.  This differs from the Irish model where the Complainant must first have sought redress through the internal Military complaints handling system – in other words, the serving soldier must have attempted to exhaust due process available before referring the matter to the Ombudsman as an independent Office of appeal.  It may be argued that the particular model of Military Ombudsman adopted by a State should be responsive to the unique culture and environment in which the Ombudsman is to serve, however the founding requirements of true independence and impartiality cannot be sacrificed if the Office is to be truly effective.
 
In recognising that there is no single applicable model and that the particularities of individual contexts will always influence a given country’s approach, the Handbook provides insights to OSCE participating States by describing models that have proved to be successful in a number of countries.  The Handbook is not aimed at setting new standards; instead, it seeks to contribute to the effective implementation of existing standards by presenting a number of models, or best practices, that demonstrate how Military structures can successfully integrate Human Rights and fundamental freedoms without causing any threat of disruption to the requirements and disciplines of Military Service in a chain-of-command structure.
 
In the preface to the original Handbook it states:
‘Armed Forces are an integral part of a democratic State.  By fulfilling their defence of national-security functions, the Armed Forces play a key role in enabling a secure environment that allows us to enjoy the inalienable rights and freedoms to which we are all entitled as human beings.  As representatives of the state structure, Armed Forces personnel are bound to respect Human Rights and international humanitarian law in the exercise of their duties…’
 
There are grounds for confidence in the view that when the rights of members of Armed Forces are guaranteed within their own institutions, Armed Forces personnel may be more likely to uphold those rights when engaged on active service or in their own Units and Barracks.
The changing nature of Military Service, which increasingly includes international missions, requires that soldiers, as part of their overall training, have a solid ethical outlook based on human dignity, Human Rights, morality, and tolerance.  Part of the attainment of this goal is to recognise and treat soldiers as possessing the same rights and obligations as any other citizen.  Excluding military personnel, in full or in part, from participating in the society in which they live and work, by restricting the application of any of their Human Rights, serves not only to deprive them of their fundamental rights but also provides no incentive for  them to engage with the cherished principles and concepts of Civil and Human Rights
                                      ~~~~~~~~~~.
 
The Military Ombudsman and the Citizen in Uniform.
 
An Armed Forces Ombudsman will perform many functions, which range from monitoring the internal complaints handling processes and ensuring that every complaint is satisfactorily processed within the Military complaints procedures to providing an independent appeals mechanism for those not satisfied with the handling or outcome of their complaints.  The Ombudsman provides an independent and autonomous Office of oversight and redress and, being complaint focused, an Ombudsman is well placed to identify systemic issues which may arise in large organisations, particularly those with a hierarchical structure and a long established culture which is rooted, for the most part, in secrecy.  This is an environment in which abuses can thrive if there is no Office of oversight with the power to shine a light into the darker corners and expose any wrong-doing, abuse of power or unfair practices.
 
If we keep in mind the preamble to the Universal Declaration of Human Rights where it is emphasised that a common understanding of the avowed rights and freedoms was of the greatest importance to bring about the full realisation of what we were signing up to in the Pledge, we are left in no doubt about the need to provide a meaningful understanding of the implications of the protection of Human Rights and fundamental freedoms to members of our Armed Forces, who have the job of guarding our rights and freedoms and supporting our States in aid of civil power.
 
In a democracy it is accepted that the Government must exercise control of the Armed Forces.  Civilian oversight of the Armed Forces is a vital aspect of a modern democratic State.  The Government will be responsible not only for the actions of the Armed Forces but also for ensuring that it is fit for any of the roles they may be called upon to perform.  The Government will, for example, be responsible for ensuring that the Armed Forces are paid and that the equipment is up to standard.  The Government of a State has a responsibility to both soldier and civilian to ensure that the Armed Forces are effective and well managed.  The discipline and morale of the Armed Forces therefore is a matter, not only for the Armed Forces themselves, but for the State.
 
One of the core objectives of the ’Handbook on Fundamental Freedoms and Human Rights‘ for members of Armed Forces is the “Citizen in Uniform” approach which carries with it the belief that Armed Forces personnel, whether professional or conscripted, are entitled to the same rights and protections as all other persons subject to certain limitations imposed by Military Service.
 
Military life brings with it certain obligations and duties which distinguish it from other professions, not least because the soldier is expected to risk being in the way of harm on behalf of the protection of the people and the State.  Of course, Military discipline is vital to the continued effectiveness of the Armed Forces.  However, the institution of the Military Ombudsman is a necessary buttress to internal administrative and human resource procedures, ensuring they are fair and consistent.  The particular constraints of Military life, such as discipline and collegiality, do not mean that human dignity may be denied to serving personnel, rather it means that in upholding that dignity the peculiar aspects of Military life must be acknowledged.
It is difficult to conclude that, by the mere fact of joining the Armed Forces voluntarily, a person has consented to all the treatment to which he is subjected in the Armed Forces, or that he has waived those of his Human Rights available to him as a citizen if his human dignity has been undermined.  He will not have waived any specific Human Rights by enlisting although those rights must be considered in a military context.[1]
 
The need for fair and accountable complaints processes within the Armed Forces is vital, not only on a theoretical basis, but for very practical reasons of recruitment and staffing.  A non-conscript army must compete for recruits with civilian organisations who will often be in a position to offer more attractive remuneration.  Military training is expensive and involves imparting some skills which can be directly transferable to a civilian context.  This is particularly the case with highly skilled or technical military professions.  Members of the Armed Forces must be attracted to join the service and encouraged to remain after their initial training.  In this respect the army must behave like any other large employer and make human resources management a core aspect of its work.  Peter Rowe, whose book I have cited and reference below, states:
 
‘Where recruitment to the Armed Forces is purely on a voluntary basis the government will need to pay attention to the terms and conditions of service in the Armed Forces, including the harshness or otherwise of the discipline system, if it is to maintain recruitment at the level it requires.’[2]
                                       ~~~~~~~~~~        
The European Organisation of Military Associations (EUROMIL)[3] founded in 1972 is the umbrella organisation of thirty-four Military Associations and Trade Unions in Europe.  Together EUROMIL’s member Associations promote the social and professional interests of about five hundred thousand Europeans in twenty-four countries, soldiers of all ranks and their close relatives.  As it celebrates 40 years since its foundation, this Europe-wide forum, for co-operation and exchange of experiences among professional Military Associations on issues of common concern, is vital in reinforcing and supporting the right of Association and representation.  Funded exclusively by membership fees, EUROMIL keeps to strict non-denominational and politically independent policies.
 
EUROMIL has participatory status of the Council of Europe and observer status of the NATO Parliamentary Assembly.  It upholds contacts with the Organisation for Security and Cooperation in Europe and is an accredited lobbyist at the European Parliament and Commission.  EUROMIL has a co-operation agreement with the European Trade Union Confederation since 1998.
 
EUROMIL promotes the Human Rights, fundamental freedoms, and socio-professional interests of military personnel in Europe.  EUROMIL’s member Associations and Unions are committed to the principle of the “Citizen in Uniform.”  A soldier has the same rights and obligations as any other citizen.  A serviceman or woman, who is to protect and defend the rights and freedoms of his/her fellow citizens and the constitutional order of his/her country, must be entitled to enjoy and celebrate the same democratic rights and freedoms.  This requires certain States to lift all existing restrictions on the civil and social rights of soldiers, which do not result from a military assignment.
 
EUROMIL emphasises particularly the right of servicemen and women to join trade unions and independent staff associations.  Soldiers are highly skilled employees who have the legitimate right to promote their social and professional interests like other workers do.  Decade-long experience in many countries has shown that Military Associations are reliable partners of the defence administration.  Military Representative Associations fully respect the chain- of- command and do not condone insubordination within Armed Forces in European member States.
                                      ~~~~~~~~~
Conclusions:
 
Since December 2005, the Office of Ombudsman for the Defence Forces in Ireland has provided an independent, objective, and accessible means of redress for individual members and former members of the Defence Forces in addition to maintaining oversight of administrative and systemic practices.
 
The work of an independent Ombudsman in overseeing the provision of services and in the protection of rights is correctly perceived to represent a championing of standards of good practice within institutions over which an Ombudsman has jurisdiction.  When an Ombudsman’s Office is established it may bring about immediate visible reforms but, as time passes, ongoing benefits accrue by virtue of the Office serving as a standard–bearer for good administrative practices.  The presence of a properly empowered Office of independent oversight can influence how an institution conducts the management of its people and promotes acceptable standards in the treatment of its members.  I emphasise properly empowered because to be effective, in real terms, the Ombudsman must be supported by sufficient powers to thoroughly investigate complaints and to do so requires a right of access to documents, installations, and the power to require witnesses to attend to give information.  It is also essential that no member of an Armed Force has reason to fear recrimination or adverse actions if s/he pursues a complaint.
 
This is especially true as regards an Ombudsman dealing with military grievances.  For instance on the website of the former German Parliamentary Commissioner for the Armed Forces, Reinhold Robbe, he stated:
 
‘Experience has shown that the very existence of an independent Commissioner to whom any member of the Armed Forces can have recourse has a positive effect on leadership behaviour[4].’
 
In my experience, the effectiveness in real terms, of such an Office depends on both political leadership and the leadership of the institution over which an Ombudsman has oversight.  I believe it is safe to say that the presence of an Ombudsman widens access to justice in the true sense of those words.  Of course, this function must be distinguished from the judicial system and it is normally the case that a statutorily based Ombudsman makes findings and recommendations and is therefore dependent on the moral authority underpinning the establishment of the Office to ensure enforcement of remedies and compliance with recommendations.
 
The founding Ombudsman for the Armed Forces in Canada, Mr. Andre Marin, referred to this as “moral persuasion.”  The Ombudsman not only depends on the willingness of the Institution under his or her remit to comply with the recommendations, but also to have had the foresight to envisage the long-term benefits to the Institution and to society as a whole.  There can be no doubt that leadership and courage are essential for meaningful institutional change and reform.  I include courage because that is what it takes to permit an outsider to have oversight, to have the right to enquire, probe and criticise the way you are administering your organisation or institution and make recommendations that you change your practices and do things differently.
 
Accepting change in the approach to handling interpersonal disputes or grievances within an Institutional workplace, particularly those with a distinct culture, requires leaders with vision, foresight, and moral courage.  Without a commitment to change in the long- term interest of an organisation, little would ever change for the better.  My own experience can safely attribute a significant part of the progress of the work of my Office to the leadership of the senior Command and Staff in the Irish Defence Forces.  Since I was first appointed as Ombudsman, I experienced not only open-mindedness but also a willingness to engage with positive change from the three Chiefs of Staff who held the role in that time and who contributed immensely to supporting the objectives of the Office of ODF.  These Chiefs of Staff demonstrated an over-riding concern for the well-being and fair treatment of those under their care and command.  In addition to this, they recognised the long-term benefit that flows from reforms of practices that give rise to grievance and perceptions of unfairness. 
As I have already mentioned, one of the reasons for the establishment of an Ombudsman was a recognition that people who choose to serve their country in the Defence Forces, with all the attendant risks that may present, deserve to have their dignity and rights respected in the workplace, regardless of the unique requirements of Military Service in a chain-of- command structure.  It is essential that the presence of an Ombudsman is seen to augment and support progressive plans for the modernisation of an army and not in any way to diminish the command structure.  My Office has strived to play a part in that pursuit in Ireland.
 
 
When appointed I endeavoured to spend as much time as possible meeting members of the Defence Forces of all ranks and their Representative Organisations.  Not only is this a vital element in monitoring awareness and understanding of the powers and limitations of the Office but it also brought me in touch with the way of life and work- place challenges of those that I was there to serve.
 
In conclusion, Ladies and Gentlemen, may I say that when I was reading about this whole subject of Civilian oversight in Military matters, at the time of my appointment to this new job, it was said by many commentators that a Military Ombudsman was a democratic corrective: some went further, and submitted that it was a democratic imperative. 
 
I respectfully propose that the latter is the case.
I look forward to hearing your views in our discussions.
 

 
--------------------------------------------------------------------               
Former Founding Ombudsman for the Defence Forces- Ireland (2005-2012)
 
“In giving rights to others which belong to them,
We give rights to ourselves and to our Country.”
J.F.K.
 

 
Some reading and references.
Abraham Henry J, (1960) A People’s Watchdog against the Abuse of Power, Public Administration Review, Vol. 20 No. 3 pp. 152 - 157
Gardiner, Leslie, the Royal Oak Courts Martial.  (1965) London, William Blackwood.
Geraghty Michael (2010), The Soldier – A Citizen in Uniform: Is the Irish Defence Forces ahead of the Game?  MA (LMDS,) National University of Ireland Maynooth, Ireland.
Longmore, Paul K., the Invention of George Washington, University Press of Virginia, Virginia, USA, 1999
McStay Kevin (2009), More Right Than Wrong?  An Examination of the Grievance Procedures in the Irish Defence Forces, MA (LMDS,) National University of Ireland Maynooth, Ireland
OSCE/ODIHR (2008) Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel, OSCE Office for Democratic Institutions and Human Rights, Warsaw, Poland
Reif Linda C. (2004) the Ombudsman Good Governance, and the International Human Rrights System, Brill NV, Leiden, the Netherlands.
Rowe, Peter, The impact of Human Rights Law on the Armed Forces, Cambridge University Press, Cambridge, United Kingdom
Sherman Edward F., (1973) Military Justice Without Military Control, The Yale Law Journal, Vol. 82 No.7 pp. 1408 -1409
Stillman Richard, (1974) Racial Unrest in the Military: The Challenge and the Response, Public Administration Review, Vol. 34, No. 3 pp. 221 -229
 
Websites:
www.odf.ie
(Irish Ombudsman for the Defence Forces)
www.ombudsman.forces.gc.ca/index-eng.asp
(Canadian Military Ombudsman)
www.bundestag.de/bundestag/wehrbeauftragter/index.html
(German Military Ombudsman)
http://military.ie/
(Irish Defence Forces)
 
www.dcaf.ch/
Geneva Centre for the Democratic Control of Armed Forces
www.euromil.org
(European Organization of Military Associations)
 
 
 
 

[1] Rowe, Peter, The impact of Human Rights Law on the Armed Forces, Cambridge University Press, Cambridge, United Kingdom.  P 62
[2] Rowe, Peter, The impact of Human Rights Law on the Armed Forces, Cambridge University Press, Cambridge, United Kingdom.  P 62
[3] www.euromil.org
[4] http://www.bundestag.de/htdocs_e/bundestag/commissioner/proposals/index.html

 


August 2010.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Citizens in Uniform: The establishment of the Office of the Irish Ombudsman for the Defence Forces and the Ombudsman’s role in the protection of Human Rights for members of Armed Forces.
 
When we assumed the soldier we did not lay aside the citizen.[1]
 
It is a great honour and privilege to be asked to contribute to such a worthy publication. I am delighted to have been afforded this opportunity to discuss the role of the Irish Ombudsman for the Defence Forces and to share with you some of the challenges and issues that I have encountered during my time in the role.
 
In the following pages I hope to provide the reader with a brief overview of the role of a military Ombudsman and to relate the Irish experience of establishing such an Office. At the outset I would like to emphasise that it is not my intention to pontificate or convince but, rather to provide the benefit of my four and a half years as Ombudsman and to speak particularly to the pitfalls and challenges of establishing such an Office de novo.
 
The Establishment of the Office of the Ombudsman for the Defence Forces.
 
The Irish Defence Forces (in Irish Óglaigh na hÉireann) are a wholly voluntary military organisation comprising the Army, Naval Service, Air Corps and Reserve Defence Forces of the Republic of Ireland. The President of Ireland is the formal Supreme Commander of the Defence Forces, but in practice it answers to the Irish Government via the Minister for Defence. There are currently 9,733 active service personnel and a further 6,089 in reserve. The Department of Defence and Defence Forces Annual Report for 2009 indicates that 5.71% of active service personnel and 22% of the Reserve are female. The Irish Defence Forces have a strong tradition of multinational peace support and humanitarian operations, having served as part of multinational forces in Lebanon, Congo and Liberia amongst others. Since 1958 the Irish Defence Forces have maintained a continuous presence on peace support missions[2].  
 
The Office of Ombudsman was created by the Ombudsman (Defence Forces) Act 2004 and has existed since 31st December 2005. It was established in response to a growing demand from a number of sources, not least the members of the Defence Forces themselves, for a transparent and fair redress procedure, a procedure which was independent from the Defence Forces’ chain of command and from the Minister for Defence and the Departmental Secretariat.
 
The decision to establish a statutory and independent Ombudsman for the Defence Forces (ODF) was a major and timely development. The work of my Office is primarily guided by the founding principles of Ombudsmanship, which are: fairness, impartiality, independence, and accountability.
 
Every member of the Defence Forces has a right to become a member of one of two Representative Associations. PDFORRA (Permanent Defence Force Other Ranks Representative Association) for the enlisted personnel and RACO (Representative Association of Commissioned Officers) for commissioned officers. Both organisations are empowered by statute to represent the interests of their members on strictly defined matters regarding pay and certain conditions of service. PDFORRA was at the forefront of the campaign to establish the Office of the Ombudsman and it is to their lasting credit that they displayed the courage and foresight to call for the establishment of my Office. It is a source of both pride and consolation for me personally that the inspiration for my Office came, not only from the executive and legislature, but from the serving men and women of the military itself.
 
 The need for an independent office to investigate complaints was made abundantly clear through the findings a report commissioned by the Irish Government from Dr. Eileen Doyle and her Expert Team. The Report entitled “Challenge of a Workplace” found, as part of an in-depth review of practices and procedures, that there was persuasive evidence of the need for the appointment of an Ombudsman for the Defence Forces. The report revealed a widespread and debilitating lack of confidence in the prevailing internal military redress procedures known as the Redress of Wrongs (RoW). This situation was described at the time as troubling and worrying. Speaking at the launch of the report the Minister for Defence, Mr. Michael Smith T.D., said:
 
There was a time when problems were ignored, or worse, concealed and allowed to fester. It takes a lot of moral courage for the leadership of an organisation to respond to a suggestion that there are serious problems by opening up to a searching outside scrutiny......  The military environment is tough and challenging. Soldiers on active service must be ready to respond quickly and professionally to potentially life threatening situations both to themselves and their colleagues, particularly on overseas duties. Because of this, military training and discipline will often impose a harsh burden on participating personnel. This fact cannot be over-emphasised. However, there is absolutely nothing in military life which requires that any individual be singled out, victimised or subjected to abuse or bullying. On the contrary, the team spirit which is essential to the maintenance of a military organisation will be undermined by such practices.[3]
 
In 2002, the Irish Government responded to the call for an independent system to oversee the existing redress processes and published legislation to establish the Ombudsman for the Defence Forces.  The legislation was extensively debated in the Irish Houses of Parliament where it received all party support.  In September 2005 I was appointed as the first Ombudsman for the Defence Forces by President Mary McAleese. In addition to dealing with cases that were referred to me from the very first day of establishment, the early months of the operation of my Office were also focused on the effective communication of the role and remit of the ODF to the many publics which my Office serves, especially current and former members of the Defence Forces.
 
            The establishment of such an Office will inevitably be a very busy time. I had to devise a corporate identity, commission a specific computerised case monitoring and case handling system, produce and distribute information leaflets and design and launch a website.  I felt that it was vital in the early days of my Office to visit the Air Corps, the Naval Headquarters and every Army Brigade, speak to members, at all levels, to describe the role, responsibility, powers and limitations of the Ombudsman.  I was conscious to ensure that people’s expectations did not exceed what I could provide as an Ombudsman.  Visiting the camps and speaking to members also provided me with valuable feedback on a wide range of issues. 
 
It is important in the early days that the Ombudsman receives briefings from senior members of the Defence Forces Command and Staff. My primary objectives were to learn as much as possible about the organisation and to win trust and confidence from all ranks. I believe that there is a very small window of opportunity within which to achieve this because there will emerge diverse views and expectations of the Ombudsman. It may never be very clear just how much support there is for the Office and the only way to proceed is to endeavour to demonstrate that the Ombudsman is an agent of positive change providing transparency in how decisions are made and determining whether administrative actions and processes are fair.
 
From the outset I was determined that my Office would establish a reputation for openness, accountability and a willingness to engage in constructive dialogue with members of the Permanent and the Reserve Defence Forces and I have striven to ensure that these attributes remain central to the ethos of my Office. I was most encouraged to be interviewed recently by an Irish officer who has chosen to examine Human Rights and redress in the Defence Forces as the topic for his postgraduate thesis in the Master of Arts programme at the National University of Ireland, Maynooth[4]. An Irish officer who had made the Redress of Wrongs process the subject of his thesis for the same degree also interviewed me[5]. It is heartening that human rights in the Irish armed forces are being examined by serving personnel, not only in a practical way, but also from an academic standpoint.
 
The powers and function of the Ombudsman of the Defence Forces.
 
            The legislation which established my Office provides that the Ombudsman will be independent of both the Minister for Defence and the Defence Forces. Independence is perhaps the single most important factor determining the effectiveness or otherwise of an Ombudsman’s Office. Independence allows members of the Defence Forces, who come forward with complaints to have confidence that the Ombudsman is distinct from the military hierarchy. It also provides the civilian authorities with confidence that effective oversight is being exercised over the armed forces.  An effective Ombudsman must be independent from both the state and the armed forces. The Office holder must be neither the “government man” in the military nor the “military’s man” in government. The independence of my Office allows me to dispassionately weigh the evidence presented and fulfil either of those roles as the case may demand.  
 
            The Office of the Ombudsman for the Defence Forces is a remedy of last resort for members of the Defence Forces who feel that they have been the subject of maltreatment. In many ways my Office was intended to supplement, rather than replace, the existing internal complaints structure. The 1954 Defence Act states that every member of the Defence Forces has a legal right to make a complaint to a superior officer.  While there is a commitment to try to resolve the matter locally at Unit level, there is a right, on the part of the complainant, if he or she is not satisfied with the determination, to have the matter referred to a higher authority, moving upwards ultimately to the Chief of Staff, who is the operational head of the Defence Forces.
 
            A complaint to the Ombudsman must first have been made through the usual internal channels. If after 28 days there has been no resolution to the matter the complainant may approach the Ombudsman directly. The Office of the Ombudsman exists as a failsafe where the usual channels have not provided satisfaction. My Office does not investigate every dispute which arises in the general course of military life, nor is it desirable that it should. The essence of an Ombudsman institution is that it provides an oversight function and not day-to-day governance.
 
            If an Ombudsman is to be effective, the Office must be sufficiently empowered, resourced and supported.  The legislation which established my Office grants me extensive powers of investigation with access to all documents and military installations relevant to the case under my review. However, the Act also limits my powers in certain areas. I am prohibited from investigating matters involving security or military operations. Similarly, the organisation, structure and deployment of the Defence Forces are beyond my remit.
 
            One of the major benefits of Office of the Ombudsman is that it can provide for quick and mediated solutions to problems for which the formal structures of military justice would be unsuited or heavy handed.  The British Royal Navy Court Martial of two officers aboard the Royal Oak in 1929 is a case in point. The incident became a national talking point and proved hugely embarrassing for the Navy. In his account of the incident Leslie Gardiner comments:
 
Blow-by-blow accounts of the trials filled page upon page of many British newspapers. As the sad, trifling tale unfolded – a swear word at a dance, an argument about a ladder, a salute not given or not seen to be given – the nation sighed with relief and was staggered that men invested with such majesty and responsibility had been laid astray by passions so ordinary, that all the Navy’s superb ceremonial had been engaged by a matter of so little moment[6].
 
The Early Experience and Challenges.
                                                                                                   
Since becoming operational my Office has handled more than three hundred and eight individual cases and has also proved to be a significant catalyst for reform of administrative and human resource management practices within the Defence Forces.
 
Within the first six months of operation, I was heartened to observe that the Defence Forces implemented significant changes in selection procedures with respect of overseas service and career courses.  This reform, on foot of my recommendations, had an immediate effect.  As early as March 2006 there was a swift and positive response to some of my first cases, in which I had found that there was a lack of consistency in the criteria used in promotion procedures and that Selection or Promotion Boards were not using consistent criteria in assessing the candidates.
 
As evidence of the value of this response, it is worth noting that in 2006 cases arising out of complaints about the selection process for career courses comprised 31% of cases.  In 2007, this number had dropped to just 13%.
 
It has also been most reassuring that my Office has won the trust and confidence of Defence Force personnel of many ranks.  In 2007, the second year of operation, more than 20% of cases eligible for investigation and review came from the rank of Lieutenant, Commandant and Lt Colonel.
 
The Final Reports I issue, not only adjudicate in respect of an individual member’s case, but my investigations also serve to highlight areas of Defence Forces administration and human resource management practices in need of reform. The then Minister for Defence, Mr. Willie O’Dea commented in 2009:
 
The input of the Ombudsman has assisted the Defence Forces in the revision of a number of HR procedures including the selection processes for career courses and overseas service. The recommendations in the Ombudsman’s reports to me have also informed the revision of selection processes for promotion, a new version of which is currently being progressed with the representative associations through the conciliation and arbitration scheme.[7]
 
 I have been keenly monitoring the implementation of commitments given by the military authorities and the Minister for Defence in response to my recommendation in relation to such matters. My recommendations have been a catalyst for reform across a wide range of areas including access to information on the personal files of members, more transparent selection/ interview procedures and a review of performance appraisal assessments.  It is safe to say there have been changes, which have a practical bearing on the daily working lives of members of the Defence Forces.
 
Military Ombudsmen: The International Dimension.
 
            In May 2009 I represented Ireland at the inaugural International conference of Ombudspersons for the Armed Forces. The conference was held in Berlin on the occasion of the 50th anniversary of the Office of the German Parliamentary Commissioner for the Armed Forces. This wonderful gathering was initiated by the Parliamentary Commissioner Mr. Reinhold Robbe in cooperation with the Geneva Centre for the Democratic Control of Armed Forces (DCAF). The conference was attended, not only by representatives of the many military Ombudsmen’s Offices, but also by representatives from states who had expressed an interest in learning more about the institution. The attendance of states without Ombudsmen was especially welcome particularly, given the attendance of high level representatives, such as Dr. Nilda Garré, the Argentine Minister for Defence.
 
In October 2009 I was honoured to be invited to deliver an address to the United Nations training school at the Military College in the Curragh, County Kildare, Ireland to a group of delegates which included members of armed forces and security forces from Spain, Zambia, Sweden, Egypt, two officers from the Irish police force, An Garda Siochana, together with members of the Irish Defence Forces and from the Command and Staff Force and from the Reserve Defence Force.  Participants were engaged in a course entitled ‘Human Rights for Military Personnel in Peace Support Operations – International Train the Trainers Course’ which was part of the United Nations Training School of Ireland (UNTSI) programme.
 
UNTSI is the Irish Defence Forces centre of excellence for human rights training and offers this course in conjunction with the United Nations Office of the High Commissioner for Human Rights (UNCHR).  The overall objective is to provide participants with an understanding of the legal and operational human rights issues and the possible roles and functions of military peacekeepers to promote and protect human rights in the mission area and to enable them to provide high-level training on these issues. At the conclusion of this course I had the pleasure of addressing the delegates on the subject of ‘Ensuring that the guardians of the peace are themselves the beneficiaries of fundamental freedoms and human rights protections.’
 
My belief in the importance of this subject was enhanced when I received an invitation to become a member of the Expert Group which was convened by the Organisation for Security and Co-operation in Europe (OSCE), Office for Democratic Institutions and Human Rights (ODIHR) (OSCE/ODIHR) and the Geneva Centre for the Democratic Control of Armed Forces (DCAF) to compile a Handbook on human rights and fundamental freedoms of armed forces personnel.
 
 The expert group met in Warsaw in December of 2006 and reviewed the chapters which covered, amongst others, subjects such as civil and political rights, military unions and associations, conscientious objection to military conscription and service, religion and the armed forces, discipline and military justice.
 
It was a privilege to be invited to speak at the launch of the Handbook on the 28th of May 2008 in Vienna.  The Handbook[8] presents an overview of legislation, policies and mechanisms for ensuring the protection and enforcement of the human rights and fundamental freedoms of armed forces personnel.  It presents examples from across the OSCE region of practices that have proved successful. It contains recommendations of measures that states should take in order to ensure that policies and practices are in full compliance with international human rights standards and OSCE human dimension commitments.  The Handbook is aimed at all individuals who play a role in promoting, protecting and enforcing the human rights of armed forces personnel, such as parliamentarians, government officials, policy makers, military personnel, judges, professional military associations, and non-governmental organisations.  It was hoped that the publication would encourage all interested parties to take the necessary measures to ensure that armed forces personnel are able to enjoy their full rights as citizens.
 
The Irish system of military oversight is by no means the only international model. In several countries, such as Denmark, responsibility for the military falls under the remit of a general administrative or human rights Ombudsman. While this approach has the advantage of bringing military affairs to the centre of administrative oversight I remain convinced that the appointment of a dedicated Military Ombudsman is to be preferred. An Ombudsman with sole responsibility for the military will more readily establish the trust of the serving personnel and will provide a single, defined point of contact for both government and the armed forces. The establishment of a dedicated military Ombudsman will also send a strong message that the needs of the armed forces are taken seriously by the state.
 
 The first dedicated independent military Ombudsman was appointed in Sweden in 1915. Since then military ombudsmen have been appointed in Germany, Canada and the Czech Republic among others. The precise powers and responsibilities of a military Ombudsman will differ from country to country. For example, the German Ombudsman may receive complaints as an alternative to the internal complaints system. This differs from the Canadian and Irish model where the Complainant must first have sought redress internally. The particular model of military Ombudsman adopted by a state should be responsive to the unique culture and environment in which the ombudsman is to serve, however the core requirements of independence and impartiality cannot be sacrificed if the Office is to be effective.
 
In recognising that there is no single applicable model and that the particularities of individual context will always influence a given country’s approach, the Handbook provides guidance to OSCE participating states by advancing models that have proved to be successful in a number of countries.  The Handbook is not aimed at setting new standards, instead, it seeks to contribute to the effective implementation of existing standards by presenting a number of models, or best practices, from within the OSCE region that demonstrate how military structures can successfully integrate human rights and fundamental freedoms without causing any threat of disruption to the requirements and disciplines of military service.
 
In the preface to the Handbook it states:
 
            Armed forces are an integral part of a democratic state in society.  By fulfilling their defence of national-security functions the armed forces play a key role in enabling a secure environment that allows us to enjoy the inalienable rights and freedoms to which we are all entitled as human beings.  As representatives of the state structure, armed forces personnel are bound to respect Human Rights and international humanitarian law in the exercise of their duties…
 
There are grounds for confidence in the view that when the rights of members of armed forces are guaranteed within their own institutions, armed forces personnel may be more likely to uphold those rights when engaged on active service. Commandant Geraghty of the Irish Defence Forces, in an academic work on human rights in the Irish army, commented:
 
The changing nature of military service, which increasingly includes international missions, requires that soldiers, as part of their overall training and makeup, have a solid ethical outlook based on human dignity, human rights, morality and tolerance. Part of the attainment of this goal is to recognise and treat soldiers as possessing the same rights and obligations as any other citizen. Excluding military personnel, in full or in part, from participating in the society in which they live and work, by restricting the application of any of their human rights can only serve to create a reluctance to venture out from behind the barracks wall[9].
 
Military Ombudsmen and the Citizen in Uniform.
 
An Armed Forces Ombudsman will perform many functions, which range from monitoring the internal complaints handling processes and ensuring that every complaint is satisfactorily processed within the military complaints procedures.  An Ombudsman provides an independent appeals mechanism for those not satisfied with the handling or outcome of their complaints. The Ombudsman provides an independent and autonomous office of oversight and redress and being complaint focused an Ombudsman is well placed to identify systemic issues which may arise in large organisations, particularly those with a hierarchical structure and a long established culture which is rooted, for the most part, in secrecy.
 
If we keep in mind the preamble to the Universal Declaration of Human Rights where it is emphasised that a common understanding of the avowed rights and freedoms was of the greatest importance to bring about the full realisation of what we were signing up to in the pledge, we are left in no doubt about the need to provide a meaningful understanding of the protection of human rights and freedoms of members of our armed forces, who have the job of guarding our rights and freedoms and supporting our states.
 
In a democracy it is obvious that the government must exercise control of the armed forces. Civilian oversight of the armed forces is a vital aspect of a modern democratic state. The government will be responsible not only for the actions of the armed forces but also for ensuring that it is fit for any of the roles they may be called upon to perform. The Government will, for example, be responsible for ensuring that the armed forces are paid and that the equipment is up to standard. The government of a state has a responsibility to both soldier and civilian to ensure that the armed forces are effective and well managed. The discipline and morale of the armed forces therefore is a matter, not only for the armed forces themselves, but for the state[10].
 
One of the core objectives of the ’Handbook on Fundamental Freedoms and Human Rights‘ for members of armed forces is the “Citizen in Uniform” approach which carries with it the belief that armed forces personnel, whether professional or conscripted, are entitled to the same rights and protections as all other persons subject to certain limitations imposed by military life.
 
The “Citizen in Uniform” (Staatsburger in Uniform) concept emerged in Germany in the aftermath of the Second World War to ensure that a soldier in the newly reformed Bundeswehr viewed himself as equal member of the nation and not as a member of an elite[11]. The German army was widely perceived by the German public to have been a vital and willing tool of the Nazi regime.  It is notable that the concept emerged during a time of crisis for the German nation. It was the response to an urgent need for faith to be restored in a military that had lost the respect and confidence of the general public. The citizen in uniform therefore is not an “ideal world” concept, but one designed in a time of catastrophe for the standing and respect of the German armed forces.
 
The post war Germany military was consciously designed as a democratic institution. The “Citizen in Uniform” concept was to ensure that the military was a reflection of the state and fully integrated within it. A major part of this programme was the establishment, in 1959, of the Office of the Parliamentary Military Commissioner (Wehrbeauftragte des Deutschen Bundestages) who was charged with enhancing parliamentary control of the armed forces and to serve as an Ombudsman to protect servicemen’s rights[12].
 
Military life brings with it certain obligations and duties which distinguish it from other professions, not least because the soldier is expected to place himself in harms way on behalf of the state. Military discipline is vital to the continued effectiveness of the armed forces. The institution of the military Ombudsman is a necessary buttress to internal disciplinary procedures, ensuring they are fair and consistent. The particular constraints of military life, such as discipline and collegiality, do not mean that human dignity may not be afforded to serving personnel, rather it means that in upholding that dignity the peculiar aspects of military life must be acknowledged. As Rowe states:
 
It is difficult to conclude that, by the mere fact of joining the armed forces voluntarily, a person has consented to all the treatment to which he is subjected in the armed forces, or that he has waived those of his human rights available to him as a citizen. He will not have waived any specific human rights by enlisting although those rights must be considered in a military context[13].  
 
            The need for fair and accountable complaints processes within the armed forces is vital, not only on a theoretical basis, but for very practical reasons of recruitment and staffing. A non-conscript army must compete for recruits with civilian organisations who will often be in a position to offer more attractive remuneration. Military training is expensive and involves imparting some skills which can be directly transferable to a civilian context. This is particularly the case with highly skilled or technical military professions. Members of the armed forces must be attracted to join the service and encouraged to remain after their initial training. In this respect the army must behave like any other large employer and make human resources management a core aspect of its work. Peter Rowe states:
 
Where recruitment to the armed forces is purely on a voluntary basis the government will need to pay attention to the terms and conditions of service in the armed forces, including the harshness or otherwise of the discipline system, if it is to maintain recruitment at the level it requires.[14]
 
The European Organisation of Military Associations (EUROMIL)[15] founded in 1972 is the umbrella organisation of thirty-four military associations and trade unions in Europe.  Together EUROMIL’s member associations promote the social and professional interests of about five hundred thousand Europeans in twenty-four countries, soldiers of all ranks and their close relatives.  Today, thirty-five years after its foundations, the main Europe wide forum for co-operational exchange of experiences among professional military associations on issues of common concern.  Funded exclusively by membership fees, EUROMIL keeps to strict non-denominational and politically independent policies.
 
EUROMIL has participatory status of the Council of Europe and observer status of the NATO parliamentary assembly.  It upholds contacts with the Organisation for Security and Co-operation in Europe and is an accredited lobbyist at the European Parliament and Commission.  EUROMIL has a co-operation agreement with the European Trade Union Confederation since 1998.
 
EUROMIL promotes the human rights, fundamental freedoms and socio-professional interests of military personnel in Europe. EUROMIL’s member associations and unions are committed to the principle of the “Citizen in Uniform”.  A soldier has the same rights and obligations as any other citizen.  A serviceman or woman, who is to protect and defend the rights and freedoms of his/her fellow citizens and the constitutional order of his/her country, must be entitled to enjoy and perceive the same democratic rights and freedoms. This requires certain states to lift all existing restrictions on the civil and social rights of soldiers, which do not result from a military assignment.
 
EUROMIL emphasises particularly the right of servicemen and women to join trade unions and independent staff associations.  Soldiers are highly skilled employees who have the legitimate right to promote their social and professional interests like other workers do.  Decade-long experience in many countries has shown that military associations are reliable partners of the defence administration.  Military associations fully respect the chain of command and do not condone insubordination within Armed Forces in European member States.
 
Conclusions
 
Since December 2005 the Office of Ombudsman for the Defence Forces in Ireland has provided an independent, objective and accessible means of redress for individual members and former members of the Defence Forces in addition to maintaining oversight of administrative and systemic practices.
 
The work of an independent Ombudsman in overseeing the provision of services and in the protection of rights is correctly perceived to represent a championing of best practice within institutions over which an Ombudsman has jurisdiction. When an Ombudsman’s Office is established it may bring about immediate visible reforms but, as time passes, ongoing benefits accrue by virtue of the Office serving as a touchstone.  The presence of a properly empowered office of independent oversight can influence how an institution conducts the management of its people and promotes acceptable standards in the treatment of its members.   I emphasise properly empowered because to be effective, in real terms, the Ombudsman must be supported by sufficient powers to thoroughly investigate complaints and cases and to do so requires a right of access to documents, installations and the power to require witnesses to attend to give information. It is also essential that no member of an Armed Force has reason to fear recrimination or adverse actions if he/she pursues a complaint.
 
This is especially true as regards an Ombudsman dealing with military grievances. For instance on the website of the former German Parliamentary Commissioner for the Armed Forces, Reinhold Robbe, he stated:
 
           ...' Experience has shown that the very existence of an independent Commissioner to whom any member of the Armed Forces can have recourse has a positive effect on leadership behaviour[16].'..
 
In my experience, the effectiveness in real terms of such an office depends on both political leadership and the leadership of the institution over which an Ombudsman has oversight.  I believe it is safe to say that the presence of an Ombudsman widens access to justice in the true sense of those words. Of course, this function must be distinguished from the judicial system and it is normally the case that a statutorily based Ombudsman makes findings and recommendations and is therefore dependent on the moral authority underpinning the establishment of the Office to ensure enforcement of remedies and compliance with recommendations.
 
 The founding Ombudsman for the Armed Forces in Canada, Mr. Andre Marin, has referred to this as “moral persuasion”.  The Ombudsman not only depends on the willingness of the Institution under his or her remit to comply with the recommendations, but also to have had the foresight to envisage the long term benefits to the institution and to society as a whole.  There can be no doubt that leadership and courage are essential for meaningful institutional change and reform. I include courage because that is what it takes to permit an outsider to have oversight, to have the right to enquire, probe and criticise the way you are administering your organisation or institution and make recommendations that you change your ways.
 
Accepting change in the approach to handling interpersonal disputes or grievances within an Institutional workplace, particularly those with a distinct culture, requires leaders with vision, foresight and moral courage.  Without a commitment to change in the long term interest of an organisation little would ever change for the better.  My own experience can safely attribute a significant part of the progress of the work of my Office to the leadership in the Irish Defence Forces.  Since I was first appointed Ombudsman in September 2005, I have experienced not only open-mindedness but also a willingness to engage with positive change from the two Chiefs of Staff who have held the post in that time.  Both Lieutenant General Jim Sreenan (Retired) and Lieutenant General Dermot Early (Retired) contributed immensely to supporting the objectives of the Office of ODF[17]. Both of these Chiefs of Staff demonstrated an overriding concern with the well-being and fair treatment of those who serve their country.  In addition to this, they both recognised the long-term benefit that flows from reforms of practices that give rise to grievance and perceptions of unfairness.  It has been enlightening for me to witness such leadership in action over the critical phase of the “start up” years of my Office.
 
As I have already mentioned, one of the reasons for the establishment of an Ombudsman was a recognition that people who choose to serve their country in the Defence Forces, with all the attendant risks that may present, deserve to have their dignity and rights respected in the workplace, regardless of the unique requirements of military service in a chain of command structure. It is essential that the presence of an Ombudsman is seen to augment and support progressive plans for the modernisation of an army and not in any way to diminish the command structure. My Office strives to play a part in that goal here in Ireland. 
 
It would be remiss of me not to call attention to the support my Office has received from two successive Ministers for Defence. While the relationship between Minister and Ombudsman necessarily entails a degree of creative tension, an Office such as mine cannot function without the active encouragement and respect of those in elected Office. Minister Michael Smith T.D. guided the legislation through the debate stages in parliament and Minister Willie O’Dea T.D. oversaw the launch of my Office. The current Minister, Tony Killeen T.D., continues their tradition of respect and support for the Office.
 
Since being appointed I have endeavoured to spend as much time as possible meeting members of the Defence Forces of all ranks and their Representative Organisations.  Not only is this a vital element in monitoring awareness and understanding of the role and remit of my Office but it also affords me the opportunity to receive vital feedback from those stakeholders[18]. It also brings me in touch with the way of life and work place challenges of those that I am there to serve.

 
 Paulyn Marrinan Quinn, S.C. --- 2010

Ombudsman for the Defence Forces - Ireland (2005-20012)
----------------------------------------------------
 
 Bibliography.:
 
 
Abraham Henry J, (1960) A People’s Watchdog against the Abuse of Power, Public Administration Review, Vol. 20 No. 3 pp. 152 - 157
 
Gardiner, Leslie The Royal Oak Courts Martial. (1965) London, William Blackwood
 
Geraghty Michael (2010), The Soldier – A Citizen in Uniform: Is the Irish Defence Forces ahead of the Game? MA (LMDS,) National University of Ireland Maynooth, Ireland.
 
Longmore, Paul K., The Invention of George Washington, University Press of Virginia, Virginia, USA, 1999
 
McStay Kevin (2009), More Right Than Wrong? A Examination of the Grievance Procedures in the Irish Defence Forces, MA (LMDS,) National University of Ireland Maynooth, Ireland
 
OSCE/ODIHR (2008) Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel, OSCE Office for Democratic Institutions and Human Rights, Warsaw, Poland
 
Reif Linda C. (2004) The ombudsman, good governance, and the international human rights system, Brill NV, Leiden, The Netherlands.
 
 
Rowe, Peter, The impact of Human Rights Law on the Armed Forces, Cambridge University Press, Cambridge, United Kingdom
 
Sherman Edward F.,  (1973) Military Justice Without Military Control, The Yale Law Journal, Vol. 82 No.7 pp. 1408 -1409
 
Stillman Richard, (1974) Racial Unrest in the Military: The Challenge and the Response, Public Administration Review, Vol. 34, No. 3 pp. 221 -229
 
Websites:
 
www.odf.ie                             
(Irish Ombudsman for the Defence Forces)
 
www.ombudsman.forces.gc.ca/index-eng.asp
(Canadian Military Ombudsman)
 
www.bundestag.de/bundestag/wehrbeauftragter/index.html 
(German Military Ombudsman)
 
www.defence.ie                      
(Irish Department of Defence)
 
http://military.ie/                                
(Irish Defence Forces)
 
www.osce.org/odihr/                          
(The Organization for Security and Co-operation in Europe. Office for
Democratic Institutions and Human Rights.)
 
www.dcaf.ch/                                      
Geneva Centre for the Democratic Control of Armed Forces
 
www.euromil.org
(European Organization of Military Associations)
 
 [1] Geroge Washington, from his address to the New York Legislature, June 1775.  See Longmore, Paul K., The Invention of George Washington, University Press of Virginia, Virginia, USA, 1999 p. 197.
[2] http://www.military.ie/overseas/index.htm (in English)
[3] http://www.defence.ie/WebSite.nsf/Speech+ID/20DFCB03BC74514180256C5C002E4FE8?OpenDocument
[4] Michael Geraghty (2010), The Soldier – A Citizen in Uniform: Is the Irish Defence Forces ahead of the Game? MA (LMDS,) National University of Ireland Maynooth, Ireland
[5] Kevin McStay (2009), More Right Than Wrong? A Examination of the Grievance Procedures in the Irish Defence Forces, MA (LMDS,) National University of Ireland Maynooth, Ireland
 
[6] Gardiner, Leslie The Royal Oak Courts Martial. (1965) London, William Blackwood. P218
[7] Irish Parliamentary Debates Vol. 677 No. 3, 10th March 2009
[8] OSCE/ODIHR (2008) Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel, OSCE Office for Democratic Institutions and Human Rights, Warsaw, Poland.
[9] Michael Geraghty (2010), The Soldier – A Citizen in Uniform: Is the Irish Defence Forces ahead of the Game? MA (LMDS,) National University of Ireland Maynooth, Ireland p. 1
[10] Rowe, Peter, The impact of Human Rights Law on the Armed Forces, Cambridge University Press, Cambridge, United Kingdom. p 61
[11] Michael Geraghty (2010), The Soldier – A Citizen in Uniform: Is the Irish Defence Forces ahead of the Game? MA (LMDS,) National University of Ireland Maynooth, Ireland p. 13
[12] Sherman Edward F.,  (1973) Military Justice Without Military Control, The Yale Law Journal, Vol. 82 No.7 p 1408 -1409
[13] Rowe, Peter, The impact of Human Rights Law on the Armed Forces, Cambridge University Press, Cambridge, United Kingdom. P 62
[14] Rowe, Peter, The impact of Human Rights Law on the Armed Forces, Cambridge University Press, Cambridge, United Kingdom. P 62
[15] www.euromil.org
 
[16] http://www.bundestag.de/htdocs_e/bundestag/commissioner/proposals/index.html

[17]  Sadly, Lt Gen Early passed away in June of this year and those mourning his loss are many. He gave so much to so many by his leadership and example and was the essence of a great General.
 
[18] Special thanks are due to my staff in the Office of the Ombudsman for the Defence Forces and to Mr. Gavin Elliott BL for their help in researching this chapter.

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EXTRACT FOR ISE – TRINITY COLLEGE
ANNUAL REPORT 2009 - 2010.


I remember reading once that we should never waste time in lamenting the fact that time seems to run so fast. But for once, may I be permitted to dip into this sentiment when I remind myself that it was ten years ago, in the early months of 2000, that I first approached Provost Mitchell about my plans to set up a Centre for Conflict and Dispute Resolution. Out of those lofty designs and aspirations grew the Post Graduate Diploma in Conflict and Dispute Resolution Studies, (CDRS).

Whereas I did not manage to secure the physical premises which I had envisaged to become a renowned Centre of Excellence in the study and practice of conflict and dispute resolution, due to the substantial support from the Provost and the Graduate Studies Committee and the Director of ISE, I joined partners with the ISE in setting up the Post Graduate Diploma in Conflict & Dispute Resolution (CDRS). Now over ten years later, with another year just completed by an 18 person group of outstanding people whose written Assignments not only exhibited the now expected high standard but also revealed a group of people who intend to contribute to their relative areas of work applying all of the richness, research and resolve exhibited throughout the year.

One of the features of this Course was to require the students to produce a personal reflective Log. Having just finished reading those Logs, I am left in no doubt about how society here, and further afield, will benefit from the time taken by these people to study and pursue aspects of conflict and dispute resolution which have been of particular interest to them or became so in the course of their time out to listen, research and reflect. Participants in the Course demonstrated an interest in civil and commercial disputes, women war and peace, the South African Truth and Reconciliation Process, International Mediation, International Peace Keeping and Peace Building, Restorative Justice, the deep rooted nature of conflict in Northern Ireland throughout many years from the time of Cromwell, the Plantation of Ulster, Williamite Wars leading up to the Nineteenth and Twentieth Century, the role of power in conflict, and the territorial nature of conflict. Participants in the Course evaluated the prospect of the application of Alternative Dispute Resolution (ADR) methods in approaching conflict as opposed to the automatic use of the adversarial system.

In the course of the year, we reflected on the world of art which demonstrated how conflict and peace efforts had been recorded through the centuries. The medium of art, in a context of illiteracy and lack of access to the Press, provided a method of recording the agony and pain that people went through in the images which were created by the artists. In the last year we have looked at the growing social conflicts emerging in an environment of widespread violent crime. There has been a tendency in public opinion to find fault with the Courts, the Judiciary and sentencing practices so we have taken on board the subject of Penal Reform and the complex area crime and punishment. We have discussed the causes of violence examining its roots whether human nature, environmental, behavioural, nurture, or even the possibility that violence is a learned behaviour.

One of our Students this year while reflecting on the opening evening of the Course, where the outline for the year ahead was described and the members of the Class provided their reasons and motivations as to why they had decided to give of a year of their time in this course of study, recalled that his trip home that first night was like a trip to an adventure park. ‘… One could not wait to get there and get started….’

I owe a debt of gratitude to all of those within the ISE who have contributed to CDRS and supported the objectives over the last number of years. I also depend on a number of practitioners, public servants, professionals, and Office holders who have provided, by way of a guest lectures, a glimpse of their world or practice at the coal - face. It was always one of the aims of the CDRS Course to study the theories and also have an opportunity of looking at some of those theories in action. So my deeply felt gratitude is due to those who enabled this objective to come to fruition.

22nd September, 2010

________________________
Paulyn Marrinan Quinn, S.C.
Founder - Conflict & Dispute Resolution Studies
ISE-Trinity College
Coordinator - (2001 -2011)
Adjunct Professor - Mediation & ADR Studies .
 

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