The European Convention on Human Rights (ECHR) is perhaps best understood as the culmination of the Enlightenment tradition of constitutionalism, hedged in legalistic language of proportionality and balance. It asserts that people have a right – or at the very least the right to have rights – to rely on the Convention when a domestic state has been derelict.
It has been invoked successfully on many occasions against Ireland, most obviously with Mary Robinson’s enlistment by David Norris in 1990 to establish his right to privacy in terms of the criminalisation of homosexuality, in circumstances where the Irish domestic Supreme Court decided against him. That challenge fell within the rubric of Article 8 of the Convention: respect for your private and family life.
The prohibition against torture and inhumane and degrading treatment under Article 3 of the Convention has protected Irish people in the infamous H Block 5 techniques case Ireland v U.K. (1979).
Using the same Article 3, the ECHR sanctioned the rogue police state in the Greek case of The Regime of The Colonels (1966), and multiple human rights cases for the actions of various police forces not least in Turkey – referred to in a recent Cassandra Voices Podcast and article. It is noticeable that it has been extended to mental suffering, including demonisation by race. With ever more advanced techniques of torture, abuse and degrading treatment that extension was a jurisprudential necessity.
A new podcast and article discuss fresh crackdowns targeting the Istanbul Metropolitan Municipality, with Fatima Akman Lehmann joining Luke Sheehan.https://t.co/nQzOJ3bxCP
— CassandraVoices (@VoicesCassandra) January 3, 2026
The track record of Ireland’s noncompliance does not make for pretty reading, not least the Norris Case. In many recent cases, given the fractured incorporation of the Convention, we have witnessed the development of the sinister interpretative obligation where the Convention is ignored if a constitutional principle applies, however dubiously, or as in the recent cases of Quirke and Dwyer, where the Irish courts used police powers and data protection to sidestep the Convention and thus entirely undermine its legal application.
Along with others, historically we have been a rogue state in Convention compliance terms, and contrary to the view of Gerard Hogan our Constitution is a paltry substitute, not least given the diminution of Due Process by the Irish judiciary, which, in fairness, Hogan sedulously opposes.
Now, with Minister for Justice O’ Callaghan leading the way, a joint statement of The Council of Europe calls for Article 8 of the ECHR, which protects the right to a family life, to be ‘adjusted so that more weight is put on the nature and seriousness of the offence committed and less weight is put on the foreign criminal’s social, cultural, and family ties with the host Country.’
It also call for the crucial Article 3 to be ‘constrained to the most serious issues in a manner which does not prevent State Parties from taking proportionate decisions on the expulsion of foreign criminals, or in removal or extradition cases.’
The joint statement also stresses the importance of ‘a states’ right… to control the entry, residence, and expulsion of foreigners from their territories, which should guide the interpretation of the Convention.’
Vexed Question of Our Age
Immigration has been the vexed question of our age, and the use of the word foreigner in the above statement is a deeply divisive word. There should be no such expression allowed in any language, only people. None of us are pure blood. The word “foreigner” in this context is meaningless.
My experience of the ludicrous Irish refugee tribunal system was that the vast preponderance of claims were rejected, and if a tribunal chair had the temerity to admit to more than a minuscule amounts of claims he or she would be removed. The Cosma case (2006) – involving suicidal ideation – I litigated with Gerard Hogan in the High and Supreme Courts sidestepped Article 2 of the convention, in circumstances where there were tangible psychological reports. English tribunals are better but increasingly restrictive, albeit educated English judges tend to respect the Convention.
In the Irish system I encountered judgments of monumental absurdity, involving ill-informed credibility assessments.
It should be born in mind that many of those who seek asylum have been falsely convicted or framed by state criminals. Turkey comes to mind. When someone is accused by criminals of being a criminal the term loses any meaning.
In all this the lessons of history and the reason why the Convention was founded are lost. Let us consider, therefore, given my mixed Austrian-Irish heritage, the respective experiences of forced or compulsory immigration in both these countries.
In some cases, as in that of legendary Austrian-Jewish writers such as Joseph Roth, Stevan Zweig and indeed the very elderly Sigmund Freud forced migration was a consequence of real or prospective political persecution, and what is known as non-refoulement is a central part of immigration law, which is a well-founded fear of political persecution.
That was during the last epoch of real barbarism. It’s clear that we are now returning to similar depravities, as the gyres of history turn.
Apart from writers and intelligentsia who were often thoroughly disenchanted with the place, most of those leaving the country have done so for economic reasons. In more recent times, if not always, we have been welcomed into the U.K. and U.S.. Sadly, we no longer live in a world that extends a welcome to the poor huddled masses. And despite others welcoming the Irish, apart from welcoming tourists and accommodating multinationals, we have never really been the land of a thousand welcomes.
Sideshow and Deflection
The immigration issue is in fact a sideshow and deflection, where fag end capitalism foments hatred and discord, turning people against each other. It is often used to deflect attention from governmental inaction in housing and substantive equality matters.
The Irish approach seems to be move immigrants down the canal, or use Gastarbeiter who pay exorbitant fees to shady educational institutions, but keep refusing them settled status.
In a separate initiative O’Callaghan has a point about working immigrants contributing to accommodation costs, and no doubt family reunification issues do require careful consideration, especially with respect to the costing of whether those who come in can be supported by family members, but any denudation of Article 3 opens up a dangerous vista.
Violent demonstrations and attacks on particular nationalities suggest that Irish parochialism and indeed racism have reached unprecedented levels. This is also the case in the rest of Europe and the UK. Let us consider the larger context.
First published in 1918, and translated into English in 1926, Oswald Spengler’s The Decline of the West was perhaps the most influential text of the 1930s. Spengler blamed what he saw as a declining European civilisation on the dilution of a mythical Aryan race – whether Germanic or Anglo Saxon. Spengler influenced Hitler and provided an ideological impetus for the extermination of undesirable races in the Holocaust or Shoah.
Moreover, our age of chaos and uncertainty allows strongman leaders like Viktor Orban (whose Hungary signed this document) to assert as policy demonization of the other. If you listen carefully enough you will recognise that the Social Darwinism of another age is also the rallying cry of neo-liberalism, as an age of cartels and select groups brings exclusion and enforced conformity against others.
It hardly matters to racists, who do not believe in science or empirical evidence, that there is zero evidence for the concept of race, as geneticists have worked out that every person on Earth can trace a lineage back to a single common female ancestor – a Mitochondrial Eve – who lived around 200,000 years ago.
Reproducing Colonialism
Who is not a foreigner and what the hell does that mean? In works such as Culture and Imperialism (1994) and Orientalism (1978) Edward Said argued that ‘Patriotism, chauvinism, ethnic, religious and racial hatreds can lead to mass destructiveness.’ He also cites our very own Conor Cruise O’Brien to the effect that Imagined Communities of identity are hijacked by the petty dictators of state nationalism.
Meanwhile, Frantz Fanon’s seminal anti-colonial text The Wretched of the Earth (1961) demonstrates how the indigenous population is required to pay the debts of the occupying powers.
This is now being reproduced in our own societies in the form of austerity. The occupying powers are now the corporatocracy, or those with inherited wealth. The only difference from the colonial period is they no longer exclusively come from a distinct ethnic group. In fact, a veneer of diversity is achieved with the promotion of a few specimens with varied pigmentation. Leo Varadkar comes to mind. As long as they embrace safe, politically correct policies that ignore structural racism they become one of us.
What Fanon said is true both of former colonialism and now internal colonialism by corporate vulture and hedge funds with politicians as puppets: ‘The people’s property and the people’s sovereignty are to be stripped from them.’
Furthermore, with respect to the assault on Article 3, certain Irish nationals might nativistically welcome this without understanding that its denudation, in conjunction with the already denuded due process, ushers in the potential Article 3 violation of Irish citizens in Ireland.
We are on a slippery slope to a larger police state.
The previous site of the heavy gang on Harcourt Street may already be equipped with physical and newly given psychological torture techniques derived from American institutions. Be careful what you wish for citizens.
Thus we find an increasing differentiation between ‘them’ and ‘us’, involving unedifying forms of class warfare and demonization of those outside the dominant culture, whether foreigner, migrant or displaced. ‘Killing an Arab’, the central theme of expurgation of ‘the other’ in Albert Camus’s L’ Étranger is now writ large in our culture.
Camus, in my view the greatest writer, humanist and intellect of the 20th Century with his Shakespearean mixed-race native ambivalence is a ghostly prophet of the way we live now.
Well before fascism there was of course widespread hatred of the wandering and or wealthy jew. The rebranding of Herzog Park in Dublin might be part of a resurgent anti-Semetism. Why not rebrand it Wittgenstein Park, after one of the great intellects of the 20th century, who is merely awarded a humble plaque in the Aishling Hotel.
End of an Era
We are seeing a growing hostility towards miscegenation, mixed marriages and corruption of bloodlines. Members of the blue-blooded, ‘Anglo-Norman’, Fine Gael party display an absurd sense of entitlement, while many Fianna Fáil members appear to be card-carrying racists, while a vigilante Catholic Right inveighs against alleged paedophiliac Asian men, while ignoring the litany of its own abuses.
All is not lost in Britain, though the rise of Tommy Robinson and co does not augur well. Even in the polyglot cosmopolis – the ultimate melting pot that is London – the sense is that multicultural tolerance has been eroded substantially, and is being replaced by fractious intolerance, racism, class warfare, intimidation and social fragmentation.
The Post Second World war humanist consensus is almost gone.
The words of Stefan Zweig, who committed suicide in Brazil after fleeing Hitler’s Europe are returning to haunt us: ‘I feel that Europe, in its state of degeneracy has passed its own death sentence.’
Feature Image: Syrian and Iraqi migrants arriving in Lesbos, Greece, in 2015 seeking refuge.
