Ombudsman for the Defence Forces

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

Presentation to

Third International Conference of Ombudsman Institutions for Armed Forces

13th – 15th April 2011

Belgrade, the Palace Serbia

Panel 3:” The role of the Ombudsman Institutions in the protection of rights of armed forces personnel in multinational missions”

“Human Rights are for all the peoples”

“In giving rights to others which belong to them, we give rights to ourselves and to our country”

John F. Kennedy,

35th President of the United States of America, 1959

Mr Jankovic, Honoured Guests, friends,

May I thank you, Mr Jankovic, and your team at your Office of Protector of Citizens of the Republic of Serbia, for hosting this 3rd International Conference of Ombudsman Institutions for Armed Forces. We are the beneficiaries of your warm hospitality and hard work in convening this Conference here in the Palace Serbia.

It is my belief that an analysis of the internal grievance procedures of any Institution and, in particular, the Armed Forces provides a barometer of current issues of concern to members. It is true to say that recurring grievances on the same issue may signal bad policies or practices, or the mal-administration of what are good practices.

An Ombudsman who is independent of the Armed Forces and the Departmental Secretariat of the Department of Defence is well positioned to identify systemic issues or abuses. The Office of Ombudsman maintains its focus on grievances, with the jurisdiction to conduct an in-depth investigation of the causes of complaint. An analysis of the complaints provides the opportunity of identifying the recurring grievances arising out of systemic abuses, long-standing customs, or attitudes.

In addition, when the Ombudsman has a case management and grievance tracking system, which is linked to the internal complaint-handling systems, it can prevent, at best, undue delay in the complaint– handling or, at worst, the complaint being ignored or ‘lost’.
The Institution of an independent autonomous Military Ombudsman is said by many to be a democratic corrective; I go further and respectfully submit that it is a democratic imperative.

It is my contention that in order to be truly effective, the Ombudsman must be endowed with legally established rights and powers to investigate all aspects of the causes of complaints and grievances. As the Office develops through the Adjudication of diverse cases, it will have a rich resource of precedents. Although an Ombudsman is not strictly bound by precedent and every case is considered on its own merits, it is desirable to attain a level consistency. The ethos of the Office and an emerging jurisprudence will contribute to the respect and confidence in the work of the Office and its modus operandi. It is necessary for the Office of Ombudsman to review its own operating practices, on an on-going basis, to ensure that it is maintaining standards of best practice.

In the pursuit of fair procedures and in defence of the principles of Natural Justice, a Military Ombudsman’s responsibility must not be underestimated. The Ombudsman needs courage, patience and tenacity in the quest for accountability and transparency in the treatment of soldiers particularly in light of the many challenges, obstructions and frustrations which they may encounter in their endeavours to investigate the complaints, provide remedy and redress in individual cases and have their recommendations implemented. However, when the Ombudsman’s Office is fully respected and the recommendations followed, the outcomes are positive for members and the Office of Ombudsman with responsibility for military personnel represents a cost-effective means of reaching a resolution, mitigating damage, and preventing further harm.

Of course it is important to bear in mind that the concept of Ombudsman has been adopted and developed throughout the world and is now recognised as being complimentary to and an extension to the Rule of Law. This, I believe, Ladies and Gentlemen, is significant and of relevance in informing our discussion about protecting the rights of soldiers while serving in multi-national missions.

Ombudsmen are there to monitor and oversee the proper application of Laws, Regulations, and Codes of Conduct; to advocate and uphold desirable processes and practice and to act as the guardians of fair procedures when dealing with individual cases.

The Ombudsman becomes a ‘touch stone’ of acceptable administrative standards when s/he issues Reports with observations on areas of malpractice or undesirable administrative processes and makes recommendations for the review of and reform of those practices. In this way, the Ombudsman is engaged in persuading those within her/his remit to re consider how they operate and, by implication, to re- think deep-rooted attitudes, cultural norms, and customs.

The Ombudsman therefore represents a democratic guarantee to citizens in general that the Ombudsman is keeping in sharp focus the rights and fundamental freedoms of their fellow citizens in uniform.

We are all aware that as Ombudsman we must strive to win respect and confidence. I believe that this is achieved primarily by being perceived as truly independent and by being seen to be effective. An Ombudsman communicates the news of her/his work through Reports and recommendations and, depending on the extent of the Ombudsman’s powers, individual Complainants will be provided with redress which will mitigate the adverse affect s/he has suffered. In addition to this, where an individual case uncovers systemic abuse, the Complainant will have contributed to the benefit of other members

It would, indeed, be naive to avoid confronting the fact that the Ombudsman concept is never more challenged than in a military context. Clearly, there is a delicate balance between appropriate rights of access to the Ombudsman and the need to safeguard the military lines of authority in a Chain of Command structure.

The ‘tension’ between the requirements related to the particular characteristics of military life is often used to justify restrictions on the exercise of Human Rights in the barracks that is usually related to preserving order and discipline, establishing political neutrality and maintaining the hierarchical structure of the military organisation. As we all know, however, the citizen in uniform approach propose that soldiers retain their Human Rights and Fundamental Freedoms subject to certain limitations and duties imposed by military service.

If we agree that the essence of military culture is that a soldier serves as a free human individual, a responsible citizen, and a combat-ready soldier, and that the modern corollary of military honour is to uphold, defend, and respect human dignity, may I submit that it follows that the citizen in uniform is entitled to a ‘Dignity Charter’ which pledges the vindication of his/her rights to dignity at work.

As one of the members of the Expert Group who contributed to the Handbook “Human Rights and Fundamental Freedoms of Armed Forces Personnel” produced by the OSCE/Office for Democratic Institutions and Human Rights (OSCE/ODIHR) and the Geneva Centre for the Democratic Control of Armed Forces (DCAF), I am very pleased to see that so many of the topics discussed in that valuable book are now being given serious consideration in many States and, in particular, have been given prominence in the topics chosen for this Conference.

I believe that it is relevant for us in our discussions here today to consider the Preamble to the Universal Declaration of Human Rights where it emphasised that a common understanding of those rights and freedoms was of the greatest importance to bring about the full realisation of the Pledge.

I suggest that, in a Military context, it rests with the Military Authorities and Commanders to ensure that their members are properly educated in this area.

Given that it is over sixty years since the Universal Declaration, I believe that it is poignant and timely that we aim to ensure the application of those precious rights to citizens, who are members of Armed Forces.

Armed Forces are an integral part of a democratic State and society; their defence of national security plays a vital role in enabling a secure social environment that allows us all to fully realize the inalienable rights and freedoms to which we are entitled.

In addressing these topics today we are looking towards the general welfare of a democratic society through a holistic lens therefore a common celebration of these rights and freedoms is of the greatest importance for the full realisation of the wide - ranging implications in the Universal Declaration.

When we pause to reflect on some of the implications of those aspirations and the pledges of 1948, we would no doubt be confronted with mixed emotions. In bad times, when we are witness to examples of man’s inhumanity to man or suffering among peoples whose Human Rights are not safeguarded, we are reminded of the bravery and passion behind the Proclamation. There was, indeed, a spirit of “enduring optimism” influenced by the context in which peoples joined to extend to all the protection of life, liberty, and security of person.

Daily, we are aware how those of use who enjoy Fundamental Freedoms can become complacent and look with merely half a glance at the delicate web of structures upon which the survival of our rights depend.

When I was invited to become involved in the Expert Group to draw up the Handbook to which I have already referred, in Warsaw in December 2006, I was greatly struck by the words in the Forward to the Project which explained why it was timely to embark on the task of addressing the Fundamental Freedoms of citizens in uniform. The words are very clear in conveying the underlying principle: if we depend on our Armed Forces to observe these freedoms and principles of Justice in the course of their duties as soldiers, overseas or in the barracks, then we must make them the beneficiaries of these very protections at work.

It is my considered opinion, after many years experience, that the Office of Ombudsman is properly placed to protect those rights. In order to do this correctly and properly, the Office of Ombudsman must be independent, impartial, and unfettered. In order to fulfil this expectation, the Office must be structured in a manner which defines and protects its separateness and its autonomy.

As we can see from the diverse range of Constitutional arrangements for oversight of Armed Forces, their structures, jurisdictional limits and powers as discussed in the Handbook, it is timely to open the discussion about the ‘essential elements’ supporting the concept of Ombudsman. The Ombudsman must be accessible, independent, fair, effective, and accountable.

I submit to you that we need to further the discussion about how those principles could be universally accepted and applied if we aspire to having arrangements which would extend the Ombudsman’s arm of protection and oversight to soldiers serving in multi- national missions.

Policymakers and Administrations must be persuaded that when an Ombudsman makes a recommendation this recommendation is seen to have sufficient moral authority to be followed and implemented. But, as we all know, this is not always the case in our own States. So, how do we arrive at a consensus as to the role and function of an ad hoc Ombudsman arrangement to serve the needs of a multi-national mission?

May I suggest that the challenge lies in finding ways and means of persuading State Administrations to recognise the need to engage in this discussion in a meaningful way. I would respectfully submit that the first approach in that advocacy is to demonstrate the enduring benefits.

I am really pleased to see that so many pivotal issues have been put at the centre of our discussions over these two days. I am confident that through our discussions, we will identify ways of extending the message about the benefits that flow from safeguarding the Fundamental Freedoms of our citizens in uniform and that those rights travel with the soldier.

We are all aware of the challenges we face every day in protecting the integrity and ethos of our own Offices to ensure that the work of such an Office is never undermined or diminished. We are therefore well positioned to address the viability of extending the Ombudsman powers of protection to a wider canvas in a realistic way.

There is no doubt that, in the first instance, vision is required to recognise the ultimate benefits on many levels. There will never be change without leadership; courage is needed for change; encouragement is needed for the first steps.

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Paulyn Marrinan Quinn. S.C.

Ombudsman for the Defence Forces, Ireland

  April,2011