How Can the Ombudsman for the Defence Forces Protect the Human Rights and Fundamental Freedoms

Paulyn Marrinan Quinn S.C. Ombudsman for the Defence Forces, Ireland

Presentation to

The Rule of Law and the Security Sector Conference

Tuesday 8 May 2012, Istanbul, Turkey

Session III: “Human Rights and Fundamental Freedoms for Governmental Security Officials”

“How can the Ombudsman for the Defence Forces help to protect the human rights and fundamental freedoms of Armed Forces Personnel” Paulyn Marrinan Quinn S.C. Ombudsman for the Defence Forces – Ireland

“In giving rights to others which belong to them, We give rights to ourselves and to our Country.” JFK.

I was very pleased to accept the invitation to address your Conference. Whereas this is my first time to visit Turkey, I was interviewed by the Newspaper – Zaman in 2009 about the work of my Office in Ireland.

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. Nothing further could be the case. but, it is my objective to share my experience as the founding Ombudsman for the Defence Forces in Ireland, over the past six years, and to reflect on the insights I have gained in establishing this Office and from the network of Ombudsman Offices for armed and security forces personnel that has developed in the past three years – which I shall discuss later. The themes of this gathering are discussed within a relationship of partnership and, to my mind that means sharing.

May I say at the outset that the ideas I wish to share today are aimed at promoting further discussion about the concept of ‘Citizens in Uniform’ and its part supporting democracy. It is my endeavour to persuade you of the significance of this approach to the management of Security Forces in a democratic system.

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

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

2 Paulyn Marrinan Quinn S.C. Ombudsman for the Defence Forces – Ireland the Supreme Commander of the Defence Forces but, in practice, it answers to the Irish Government through the Minister for Defence.

The following outlines the Strength of Permanent Defence Force (PDF) and Reserve Defence Force (RDF) on the 15 Dec 2011

PDF Strength 9,460 RDF Strength 5,361

On 31st December 2010 there were 569 female members serving in the PDF constituting 5.97% of the membership.

The Irish Defence Forces have a strong tradition of service in multinational peace support and humanitarian operations, having served as part of multinational forces in Lebanon, Congo, Liberia and Chad amongst others. Since 1958 the Irish Defence Forces have maintained a continuous presence on UN peace support missions. Ireland has never colonised or invaded any other State but was itself invaded and colonised many times and for many years.

The Office of Ombudsman 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 historic development. The work of my Office is primarily guided by the pillars and the essential elements of Ombudsman best

3 Paulyn Marrinan Quinn S.C. Ombudsman for the Defence Forces – Ireland practices which are that the Ombudsman is: impartial, 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 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 has been a source of encouragement and pride for me 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 of a report commissioned by the Irish Government. 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 Office 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.

There was a time when institutional problems were ignored, or worse, concealed and allowed to fester. It takes a lot of moral courage for the leadership of a hierarchical organisation to respond to a suggestion that there are serious problems by opening up to probing from an outside Office with

4 Paulyn Marrinan Quinn S.C. Ombudsman for the Defence Forces – Ireland 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.

In 2004, 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. 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 my Office serves, especially current and former members of the Defence Forces.

From a practical perspective, 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 Service Headquarters and every Army Brigade, speak to members, at all levels, to

5 Paulyn Marrinan Quinn S.C. Ombudsman for the Defence Forces – Ireland describe the role, responsibility, powers and limitations of the Ombudsman in order to manage expectations. I was conscious of the need 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 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 and confidence from all ranks. I believe that there is a very small window of opportunity within which to achieve this because there will be diverse views, hopes and fears about the introduction of an Office of 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. I have striven to ensure that these attributes remain central to the ethos of my Office.

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

6 Paulyn Marrinan Quinn S.C. Ombudsman for the Defence Forces – Ireland 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 Military Ombudsman must be independent from both the state and the armed forces. The Office holder must be neither the “government person” in the military nor the “military’s person” in the government. The independence of my Office allows me to weigh the evidence presented and examine the facts of an individual complaint without fear or favour.

Access to my 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 behaviour. 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. 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. If the member is not satisfied with the way the complaint has been handled or the outcome, s/he has a right to refer the case by way of appeal to me.

In addition to this, if after 28 days, there has been no resolution to the matter the complainant may approach my Office directly. The Office of the Ombudsman exists as a safety-net where the usual channels have not provided satisfaction. One additional feature of an Ombudsman Institution for Armed Forces personnel is that it provides a civilian oversight function providing a democratic

7 Paulyn Marrinan Quinn S.C. Ombudsman for the Defence Forces – Ireland corrective in requiring accountability for administrative and human resource management practices from the military. However, in the last number of years, there has been particular attention paid to the other aspect of the Ombudsman’s role in protecting the human rights and fundamental freedoms of the armed forces personnel.

Through the work of the Office of Democratic Institutions and Human Rights at the Organisation for Security and Cooperation 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’ rights. This Handbook has been published in a number of languages and is currently under review for up-dating which is a very positive sign about the influence and benefits of such a work. May I refer you to the website of DCAF.

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 quite reasonably 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 because, of course, operational matters are for the command of the Defence Forces and policy is for the Government.

The Early Experience and Challenges.

8 Paulyn Marrinan Quinn S.C. Ombudsman for the Defence Forces – Ireland

Since becoming operational, my 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 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 the 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 but by 2007, this number had dropped to just 13%.

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, more than 20% of cases eligible for investigation came from the rank of Lieutenant, Commandant and Lt. Colonel.

My Office is accountable and must produce an Annual Report which I present to our Parliament every year. I use 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 Complainant) that I have 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 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 systemic 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 procedures including the selection processes for career courses and overseas service. He formally concluded 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. So progress, a positive impact, and value for money were evident within a short time of the establishment of the Office of Ombudsman.

I actively conduct an audit on the implementation of commitments for reform given by the military authorities and the Minister for Defence in response to my recommendations in relation to administrative and systemic practices. 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 assessment procedures. It is safe to say there have been changes, which have has a positive impact on the daily working lives of members of the Defence Forces.

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, (ICOAF) through a link on my 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 - An Garda Siochana, together with members of the from the Command and Staff Force 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’

My belief in the importance of this subject had been reinforced, shortly after I took up this 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 book provides an overview of legislation, policies and mechanisms for ensuring the protection and enforcement of the

12 Paulyn Marrinan Quinn S.C. Ombudsman for the Defence Forces – Ireland 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 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 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. In the acknowledgement of this principle, the concept was referred to as ‘citizens in uniform’. I am happy to advise that the Report was translated into many languages and that it is now being up-dated. It is a useful collation of the many Offices and includes recommendations on best practice models and components for a truly effective Office.

The Handbook reveals that in several countries, such as Denmark, Serbia or Poland, responsibility for the military falls under the remit of a general administrative or 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. 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 Complainant must have exhausted due process available before referring the matter to the Ombudsman by way of an independent outside 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 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, 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 and a chain-of-command structure.

In the preface to the Handbook it states:

‘Armed forces are an integral part of a democratic State and 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 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 citizens. 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.

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. 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 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 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 essential 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 life.

The “Citizen in Uniform” concept emerged in Germany, in the aftermath of the Second World War, to ensure that a soldier in the newly re-formed Bundeswehr viewed himself as an equal member of the nation and not as a member of an elite. 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 where the primary objective was to establish meaningful oversight and, with that, confidence and peace of mind that the past abuse of power could never be repeated.

The post war German 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 who was charged with enhancing parliamentary control of the armed forces and to serve as an Ombudsman to protect the rights of service personnel.

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

17 Paulyn Marrinan Quinn S.C. Ombudsman for the Defence Forces – Ireland the way of harm on behalf of the protection of the people and 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 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. 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, states:

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

‘ 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 approaches 40 years since its foundation, the main Europe-wide forum for cooperation 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 at 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

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

19 Paulyn Marrinan Quinn S.C. Ombudsman for the Defence Forces – Ireland 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 civil 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

20 Paulyn Marrinan Quinn S.C. Ombudsman for the Defence Forces – Ireland 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 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 behaviour4.’

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.

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

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 in the Irish Defence Forces. Since I was first appointed Ombudsman, I have experienced not only open-mindedness but also a willingness to engage with positive change from the three Chiefs of Staff who have held the post since my appointment have 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. It has been enlightening for me to witness such leadership in action over the critical phase of the establishment 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 has strived to play a part in that goal in Ireland.

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 powers and limitations of my Office but it also brings me in touch with the way of life and workplace challenges of those that I am 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 this is the case.

“When we assumed the soldier we did not lay aside the citizen” George Washington, from his address to the New York Legislature, June 1775

------Paulyn Marrinan Quinn. SC. Ombudsman for the Defence Forces – Ireland.

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? 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)