Spotlight on Clive Stafford Smith OBE

Part 2 of 2

Each month, the HRC Blog features a significant figure from the Human Rights community to go under the Spotlight, answering questions put by students from the University of Essex.  This month, we feature Clive Stafford Smith OBE.  Part 1 covered questions about the death penalty and COVID19.   

 

NINTCHDBPICT000589082437Note from the Editor: This week is a particularly poignant one for Clive as it would have been the 60th birthday of Edward Earl Johnson, who was wrongfully executed in a Mississippi gas chamber in 1987 at the age of 26.   Edward’s tragic case came to the world’s attention through the documentary, Fourteen Days in May, which captured Clive’s attempts to halt the execution and followed Edward’s last few days and very final moments.  I would urge anyone interested in human rights and justice to watch this powerful documentary and support the work of Reprieve , the organisation Clive founded to give free legal support to the most vulnerable and forgotten people in this world. 

I would like to thank Clive for spending some of his precious time in answering our questions and for his inspiration to those of us joining the growing global human rights defence team.

 

About Clive

Clive Stafford SMithClive Stafford Smith is the founder of ‘Reprieve’ and a well known human rights lawyer.  He has spent his career fighting against the death penalty in America, only taking cases of those who could not afford a lawyer, assisting in the representation over 400 prisoners and preventing their execution in 98% of cases.  Clive is also known for his work in representing detainees at Guantanamo Bay, successfully suing the US government to gain access to the facility, and helping to secure the release of some 80 detainees to date, with seven clients still there.  In addition to visiting and representing the detainees, Clive tracked down the families of ‘disappeared’ prisoners across the Middle East, prompting some unwelcome ‘interest’ from US allies, including the Jordanian Secret Police, who detained him in 2004.  In 2000, Clive was awarded an OBE for ‘humanitarian services’ and has won a raft of awards in the field of human rights.

 

Students’ Questions Answered

Clive was gracious enough to allow the students at Essex an opportunity to send him  some questions about his experiences and ongoing work in the field of human rights.  Clive answered questions on a range of topics.  In this second part, we explore the topics of Guantanamo Bay,  criminal justice reform and the decolonisation of the curriculum.  Clive also has some wise words of advice for our human rights students.

 

COUNTER-TERRORISM  & GUANTANAMO BAY

Clive&HonorBound

Clive at the entrance to Guantanamo Bay

Q: What challenges does the use of new technologies in counter-terrorism measures create for human rights activists?

A: There is no such thing as a challenge, only an opportunity.  But certainly the Drone Age means that we kill people around with world with some degree of impunity.

And for those of you who have read I, Robot by Isaac Asimov, it is notable that his first law of robotics (coined in 1950, shortly after the first use of a nuclear bomb) states: “A robot may not injure a human being or, through inaction, allow a human being to come to harm.” Sad to say, like the Manhattan Project and nuclear weapons, the military is in charge of most AI being used in drones, and the only use is to kill people. Again, we have the world upside down.

 

Q: To what extent do you believe that removing the human element in extrajudicial executions through the use of unmanned drones in the war on terror has led to an increase in human rights violations and blow-back on western powers?

A: This is indubitably true, as it has lowered the threshold for warfare (we can kill people in Waziristan without risk of American body bags – indeed while our “drone pilots” are drinking coffee in Nevada). We have also ignored hundreds of years of the developments of the law against assassination, and are going around the world killing people.

And that is just the Americans and the British. In turn, we encourage others, like the Russians (in Salisbury) and the deranged President Duterte (in the Philippines).

 

Q: Does the Guantanamo Bay Periodic Review Board still exist and does it still operate?  And what are the prospects for those already cleared for release being allowed to return to their home countries during Trump’s tenure..…Abdul Latif Nasser being one.

A: The “review processes” in Gitmo have always been a sham – “kangaroo courts” in the words of UK Justice Steyn. Nobody has been cleared since Trump became president so it does not matter that the PRB still exists in theory.  Nobody is going to be released by Trump, based on his midnight tweets. It is back to the middle ages, when a king could just lock you up without trial based on his fiat.

 

CRIMINAL JUSTICE REFORM

Black Lives Matter Black Friday

Q: With the George Floyd protests and Black Lives Matter movement garnering an unforeseen amount of international pressure for racial justice, civil rights activists are championing for total criminal justice reform in the US.  If this were to occur, in what context would you see this happening? What would be your primary goals in the implementation of a ‘just’ criminal justice system?

A: By and large I would encourage people not to tinker with the machinery of death and incarceration. It is anathema. I would no more send someone I love to prison, no matter what they did, than I would thrash my 11 year old child. Prison solves nothing at all.

Yes, there are some dangerous people. Many of them are currently policemen with guns, but others are those who start wars, and there are people who commit serious offences like murder. But if you think you would never murder, you need to ask yourself why? Is it because you are somehow morally superior (like the Klan?) or is it because you had many benefits that others do not have?

There are other solutions to our societal problems, but for that you may have to wait for my next (thrilling) book…

 

DECOLONISING THE CURRICULUM

UDHRQ: Many people are calling for the de-colonisation of the educational curriculum in Europe and America.  Do you believe the same is necessary in the theory and practice of human rights in order to provide genuinely universal implementation?

A: It is not so much de-colonisation that we need, as de-mystification. What we are taught in schools and in life is just nonsense on many levels. People were not “men of their times” they were barbarians. As are we today in many ways. The more interesting issue is whether we cannot look at ourselves today and identify the way in which we, as a society, are just mad.  Obviously racism is mad.

I challenge everyone to come up with at least one practice that you see around you where the overwhelming majority of the world (or your country) thinks it is totally right and justified, but you think they are all a bit deranged. Racism is not good enough as there are lots of people who think that is insane. So you have to go much further afield. If you can’t think of any, then I fear you are a subject of indoctrination in the same way as the people were who burned the witches in Salem.

One example might be the idea that Britain should have closed borders and clutch close to our breasts all the benefits we have from pillaging other countries, just because we happened to get away with it and now say we are “British”. But in my world there are many examples. I sit watching the world around me with bemusement.

At a very simple level, human rights are about humans. They are not about British people or Americans.  It is telling in this regard that the US has not ratified one human rights convention that is enforceable in a US court; just as it is telling that the British think that “parliamentary supremacy” means that Priti Patel can tell us how nasty we should be to other people (rather than supremacy over a nasty executive, originally perhaps King Charles 1).

 

ACCOUNTABILITY

Campaignagainstarms tradeQ: With economic interests at the heart of international relations, what are the prospects for holding the states with the biggest pockets accountable for human rights violations?  And if existing mechanisms are not working to provide that accountability, what can we do as human rights advocates to make real change?

A: “Accountability” does not mean prosecuting people and putting them in prison. On one level, that makes us as unpleasant as them. Rather, it means bringing power to the powerless, and putting a stop sign up to abuses. That is remarkably easy, partly because you and I are not afraid of anyone, and politicians are afraid of everyone.

Power is not just about law, which is only one tool in our tool box. It is as much about the court of public opinion. So those of us who are privileged – which includes everyone who has the spare time to read me rambling on – just has to do what my mother told me to do, which is to get between the haters and the people who are being hated, and just say ‘No’.

 

FINDING NEW TACTICS THAT WORK

social mediaQ: As a Human Rights Lawyer, one needs to keep on transforming ways to keep the cause alive but sometimes bringing change is difficult.   How have the tactics changed over the years to today, when social media has become such an important tool for mobilizing causes?

A: You’d be bored to death if you did the same things all the time, but the rules actually remain the same. The most important rule is that we are Brer Rabbit and the when they misbehave the government plays Brer Fox (as do the other bad guys). That means that the government is very big and quite strong, but not terribly clever; whereas you are small, rather clever, and a teeny bit arrogant. So all you have to worry about is getting a bit ahead of yourself.

Our job is persuasion. Another flaw the liberals have is that they are too pious and take themselves too seriously.  Humour is a much more persuasive tool than piety.  And we have to remember that we are trying to persuade people who speak different languages.

There is good in everyone but you have to find it. An example would be a capital jury trial: the jurors can only get on the case if they promise that they can impose the death penalty so you are foolish if you preach to them that the death penalty is immoral. It also does not work to quote Shakespeare as I once did (“The Quality of Mercy is not Strain’d”). On the other hand, in the US the chances are they are Christian, which means that the death penalty is really about Matthew chapter 5, verse vii: “Blessed are the merciful for they shall obtain mercy.” Translated to a juror, this means that if you do as the prosecutor wants and show no mercy, you get eternal damnation; if you do as I suggest and show mercy, you go to heaven. Your choice.

 

HIGHS, LOWS AND SOME WISE WORDS

Cliveypoo_opt-150x150Q: What has been your greatest achievement and your biggest failure or regret throughout your career?

A: Hard to say here. I have learned huge amounts from people I have represented, and also been able to hand back lives to a fair number of people who were being tormented by one government or another. That is cool, but I don’t think of it as an achievement, so much as a privilege.

On the other side of the ledger, notwithstanding losing six clients to the chamber (including Edward Earl Johnson – you can watch that miserable failure online.  My greatest failure by far is the fact that I advocated life without parole as an alternative to the death penalty in the 1980s at a time when life generally meant 7 to 10 years.  Jurors would vote death because they were afraid of parole and so I wrote a fairly influential article about how we should have “truth in sentencing” so that life meant life – purely to avoid the death penalty.

Taking the fact that there are now 206,000 people serving LWOP in the US, and that they each serve at least 25 extra years each, I recently calculated that my bright idea had caused perhaps a total of 1,954 MILLION days of additional prison misery for people.

I don’t beat myself up about this too much. I think it was an astoundingly stupid thing to advocate, but the best I can do is never to allow another of my clients to suffer LWOP.

 

Q: Do you have any unfulfilled burning ambitions left?

A: I am not sure I have any “ambitions” – that is an odd word.  I do have lots and lots of things I want to do. And they change every day as there are fascinating things all around. I just wish there were 72 hours in the day.

 

Q: What advice do you have for any students embarking on a career in human rights?

A: I am afraid I have a full lecture (rant!) on this, and we will have to share it sometime. But in a word, never accept the foolish rules society (and your teachers!) foist upon you.  Do not ask yourself, for one thing, how you can ‘get’ a job – rather, think how you can create the job you want to do.  I have never had a real job in my life and I do not plan to have one. Instead, I have always created the job I want, and raised the money to fund it.  When you think how much time you waste on other things like Latin and Maths (I have never found a Roman to talk to, and while I did Further Maths A level it has no relevance to my life), it is astounding that we spend so little time working on creating a job we’d like to do.

 

 

 

Spotlight on Clive Stafford Smith OBE

Part 1 of 2

Each month, the HRC Blog features a significant figure from the Human Rights community to go under the Spotlight, answering questions put by students from the University of Essex.  This month, we feature Clive Stafford Smith OBE.  This is part 1 of 2.

 

About Clive

Clive Stafford SMithClive Stafford Smith is the founder of ‘Reprieve’ and a well known human rights lawyer.  He has spent his career fighting against the death penalty in America, only taking cases of those who could not afford a lawyer, assisting in the representation over 400 prisoners and preventing their execution in 98% of cases.  Clive is also known for his work in representing detainees at Guantanamo Bay, successfully suing the US government to gain access to the facility, and helping to secure the release of some 80 detainees to date, with seven clients still there.  In addition to visiting and representing the detainees, Clive tracked down the families of ‘disappeared’ prisoners across the Middle East, prompting some unwelcome ‘interest’ from US allies, including the Jordanian Secret Police, who detained him in 2004.  In 2000, Clive was awarded an OBE for ‘humanitarian services’ and has won a raft of awards in the field of human rights.

 

Students’ Questions Answered

Clive was gracious enough to allow the students at Essex an opportunity to send him  some questions about his experiences and ongoing work in the field of human rights.  Clive answered questions on a range of topics.  This first part focuses on the Death Penalty and the impact of COVID 19

DEATH PENALTY

HangingQ: Due to the racial bias in its administration, historic links have been made comparing the death penalty in the US to lynching methods previously used in the South. From your experience working on capital punishment within the US criminal justice system, in what ways would you agree that the death penalty is a “direct descendant of lynching”, and in what ways would they differ?

A: First, it must be said that the US has a direct form of lynching today, which is the assassination programme, a simple case of “execution without trial” (which is what lynching was). The archetype of this is the case we have pending of Bilal Abdul Kareem, an African American comedian-turned-war-correspondent who is in Syria, and who the US has tried to killed five times to date. So there is more than one form of US death sentence.

But in terms of the death penalty as it is more commonly conceived, it is only a system of societal control, the same as lynching. The underpinnings of lynching involve a racism that seeks to play poor white people (the KKK and their ilk) against (primarily) poor black people to prevent them seeking common cause – a demand for equality.  Likewise, it is ludicrous to think that the death penalty solves anything.  Instead, it is a way to pretend that we are solving the manifest problems in society (crime, which is mainly rooted in poverty, the proliferation of guns, drugs, and a lack of healthcare) by blaming a small number of disproportionately black ‘criminals’ and executing them.  Of course, this does nothing to solve the problems.

At the same time as with lynching, where the ‘victim’ was generally a white woman (who might only have been the object of a cat-whistle, but might have been raped by someone), we use the death penalty to value people differently.  As Justice Brennan wrote in his dissent in the McCleskey case:

At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey’s past criminal conduct were more important than the fact that his victim was white. Petitioner’s Supplemental Exhibits (Supp. Exh.) 50. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. Petitioner’s Exhibit DB 82. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey’s victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black, Supp. Exh. 51, while, among defendants with aggravating and mitigating factors comparable to McCleskey’s, 20 of every 34 would not have been sentenced to die if their victims had been black. Id., at 54.  Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim.  Ibid. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.

I was privileged to represent Warren in his last appeal, and it is indubitably true that he died because the US could not face the fact that he was being killed due to the colour of his skin.

 

clivequote-1024x512

 

Q: Your decades’ long work seeking to counter the death penalty in the US will have exposed you to the depth and extent of racism in the United States. How do you think the human rights community can contribute to the struggle to denounce and overcome racism in the US?

A: First, British people should take a look in the mirror.  At least the US talks about racism and tries to confront it.  The British don’t, and the comments I have heard from British people in the past BLM-weeks have been sad. “I believe all life matters,” is a refrain you would never hear in the US, any more than you would go to the funeral of someone’s child and hear someone say, “I believe the life of my own child matters too.”

Also, the British legal system is rife with racism yet nobody talks about it.  At current rates, it would take 100 years for there to be proportional BAME parity among QCs and judges (and 50 years for women).  Almost three quarters (74%) of judges went to private schools.

That said there are real problems in the US, a country that was built on slavery (much as the wealth of Britain was made, in large part, on the same dreadful practice).  Yet at least in the US we have the tools to combat it.  We can question jurors about racism (Turner v. Murray) – there is no questioning at all in the UK.  We can challenge racism in all the stages of the legal process (Rose v. Mitchell, McCleskey v. Kemp) – it is unheard of in the UK. We can challenge the racial decision making by jurors (Tharpe v. Sellers) – it is a crime to speak to jurors about their service in the UK. And so forth.

But the real issue is that we need people who are making the effort. That means you.

 

Q: What kind of practical obstacles have you faced in your journey of bringing justice to those facing the death penalty?

A: There are many. Some of the rules of the US Supreme Court are just fatuous for their failure to take into account reality.

 

2012 Kris&Marita

Marita and Kris Maharaj

When I started doing capital trials, I had just graduated Columbia Law School, and most of my colleagues had gone to firms on Wall Street where they were paid $1,000 an hour to waste their lives representing corporations over money. We were paid $1,000 for an entire capital case.  And when the clients were on death row, they were meant to represent themselves – they could only have lawyers if they had volunteers…

 

 

And then there is the issue of innocence – the US Supreme Court has held that “mere” innocence is not enough to release someone from death row (Herrera v. Collins).  This is why Kris Maharaj – my British client sentenced to death 33 years ago, now 81 years old – remains in prison despite the magistrate judge finding that he is innocent by “clear and convincing evidence” last September 13th – nine months ago.

But there are many other reasons.  One is the standard of proof.  While people say they must find a person guilty “beyond a reasonable doubt”, my not very scientific studies suggest that judges think this means around 83% sure – which we may translate as saying they are aiming to convict one innocent person in every six cases, or one million of the 6 million Americans who are in prison or facing it. (As Robin Hood reminds us, if you aim that low, you always miss.)

Sad to say, similar problems permeate the British system too.

 

Q: How does the approach to working on behalf of detainees in certain black sites/ secret prisons differ from cases of prisoners facing the death penalty and is one more challenging than the other?

A: Part of the problem with black sites is that you cannot get to your client, there is no rule of law, and they have no legal rights.  So that is much more challenging.  But at the same time, we have got 740 of the 780 people out of Guantánamo largely through publicity, as generally public opinion favours those being held without trial more than it favours those being held on death row after an unfair trial.

 

 

COVID 19

Coronavirus_greenQ: How has the COVID19 pandemic, considering government responses to the outbreak in particular, impacted upon detention centres like Guantánamo Bay and US death row prisons?

A: Prisons are, in the words of the Washington Post, “petri dishes of the virus.”  My clients cannot “social distance” from anyone.  The best example is Kris Maharaj: 81 years old, held now in a dormitory with 45 other old men, locked in their in “quarantine” now they have had 4 men test positive, which means you are locking him in with the virus, in beds that are 3 feet apart, 24/7.  We got him off formal death row in 2002, but now the State of Florida is intent on executing him by Covid 19, before we can get him out of prison.

 

Q: Do you think lockdown measures have caused attitudes to change towards detention or have helped to raise awareness about the conditions experienced by detainees?

A: No. I think people think they have had it like prison which is nonsense.

 

Q: How has Reprieve’s work been impacted by the COVID19 pandemic?

A: I can really only speak for myself. It is busier than ever and actually I have generally found I waste lots of time travelling when I can get much more done by staying home. The only thing I really miss is being able to go to Guantánamo and see the clients in person, but at least I can talk to them regularly on the phone.

 

Part 2 of our Spotlight with Clive Stafford Smith OBE will cover the topics of counter-terrorism, The US Criminal Justice system and the ‘de-mystification’ of the curriculum.

 

 

Resisting the ‘Master’: How Memory can Advance Accountability for Sri Lanka’s Disappeared

By Stephanie Nicolle

In January 2020, newly elected President Gotabaya Rajapaksa claimed that Sri Lanka’s disappeared were ‘dead’.   Thereafter, the instructions communicated by the country’s highest office were brief.  ‘Death certificates’ would be issued to the families after conducting ‘necessary investigations’. The unrelenting finality of this messaging signalled to the families that the state had chosen to move on, and so should they.

Sri Lanka’s disappeared are among the highest in the world, resulting mainly from a nearly 30-year war and two Southern insurrections. Every year, on May 18, Sri Lankans remember the lives lost due to the war and those forcibly taken away. However, the current state’s commitment to deliver genuine accountability draws scepticism from the families of the disappeared.  On the one hand, the ‘investigations’ will be conducted under a president who served as the defence secretary during the final war years and immediately after. During that time, Rajapaksa and the then administration stood accused of committing war crimes. These allegations have cast doubts over the independence of the proposed investigations. On the other, the president’s messaging reinforces a familiar state narrative that has often denied, downplayed or deflected enforced disappearance.

This article presents a case for the role that memory can play in challenging the sense of finality conveyed by the state.  First, it reviews the memory advanced by the state that has dominated Sri Lanka’s post-war years, which can be explained through the concept of a ‘master narrative’. Thereafter, it analyses an instance where individual memories were able to resist the master narrative to a certain extent. Finally, it argues for a more ‘public’ form of remembering to effectively resist the state’s narrative and amplify calls for accountability.

 

Unravelling Sri Lanka’s ‘Master’

Prof. Brian F. Havel offers a useful way of understanding the political form and function of a master narrative.  To Havel, a nation’s master narrative comprises official memory.  It is an effort by the state to prescribe its selective, top-down version of events. Especially in post-conflict societies, the master narrative is perpetuated to reconcile citizens with the state.  Its ideological function often manifests through state-authored memorialisation projects, which help entrench it.

Sri Lanka’s post-war state advanced a specific master narrative.  This narrative framed the war as a ‘humanitarian’ effort and valorised state officials as ‘war heroes’. Such language disallowed the space for any recollection beyond the parameters of this narrative, including enforced disappearances.  State-authored memorialisation projects, promoting military triumph, indicate this erasure of alternative memories.

Individual memories that contested Sri Lanka’s master narrative were often dealt with through various strategies: (1) refutation, (2) reframing such memories as ‘exaggerated’ or a ‘betrayal of the war heroes’, and (3) reconciling such memories with the master narrative.

 

Resisting the ‘Master’

Given the dominance of the master narrative, we may then ask, ‘Can the master narrative be effectively resisted?’

Certain instances in Sri Lanka’s post-war years suggest the possibility of limited yet effective resistance. One such instance is the ‘Memory Wall’ erected by the Office on Missing Persons (OMP) in 2019, where families of the disappeared were invited to commemorate their loved ones. Commemorating the disappeared at the OMP—a government body—was, arguably, a significant moment for resistance campaigns led by the families.

Resisting the master_2

‘Memory Wall at the Office of Missing Persons (OMP) in Sri Lanka’. Image by Saliya Pieris

 

At the outset, the Memory Wall, albeit a temporary structure, stood as a site of resistance. It was a testament to the years of individual memories and struggles to resist the state’s pervasive master narrative.  Concurrently, it indicated a slight change in the post-war state’s response to enforced disappearance—from years of denying and discrediting to an extent of respect and recognition.

The Memory Wall, which held personal photos and penned messages, also opened an avenue for broader conversations on memorialisation.  It gave families the freedom to decide the memories they were comfortable with displaying.  The memories were, therefore, theirs to keep or share. This way, the Memory Wall stood as a marked contrast to other post-war memorials that served to legitimise the state-authored master narrative.

However, the social impact generated by the Memory Wall was short-lived.  Its significance was, to a great extent, limited to an intimate, private realm comprising the families.  This limitation likely curbed its potential to create momentum around resistance campaigns.

 

Broadening the Resistance

To effectively resist the master narrative, individual memories need to transcend the private realm and penetrate the social realm of remembrance.  They need to become part of public memory. One approach resistance campaigns can use to draw public support is memorialisation.

Memorialisations draw various responses.  For some Sri Lankan families of the disappeared, they convey ‘an end’ to the hope of meeting their loved ones. However, transitional justice practitioners continue to highlight the value of memorialisations.

Memorialisations tend to have significant restorative potential.  For the victims of past abuses, they provide a kind of reparation by publicly calling out perpetrators and recognising victims’ memories.  For the community, they urge reflection and foster empathy.  To this end, they remind us of the importance of collectively ensuring non-recurrence.

Memorialisations also attract myriad voices that are beneficial for resistance campaigns. One benefit relates to overcoming barriers to resistance. To date, state-led intimidation and surveillance attempts to silence traumatic truths from becoming public.  A larger collective can help build solidarity and create a safe space for individuals to speak.  The second benefit relates to overcoming a drawback of individual memory.

Often, the significance of individual memory, which comprises lived experience, ceases to exist when the holder of this significance is no more. In Sri Lanka, at least 70 relatives of the disappeared have passed away without receiving answers. By appealing to public consciousness, resistance campaigns allow for individual memories and campaigns to become ‘public’ and live on, despite the death of an individual.

Resisting the master_1

‘A family member holds a photo of a disappeared loved one’. Image by Human Rights Watch

Part of memorialising Sri Lanka’s past atrocities relating to enforced disappearance is confronting the legitimacy struggles over memory.  That is, the right to determine whose memories are publicly acknowledged and how.  To facilitate an inclusive form of public memory, memorialisations must balance the need to respect individual memories with the need to create collective resistance.  Here, Sri Lanka may learn from countries like Argentina and Chile, which have and continue to engage in these conversations.  Both Argentina’s Parque De La Memoria and Chile’s Museum of Memory and Human Rights grappled with highlighting victim-centred accounts, the extent of state involvement, and creating a public push for accountability.

Sri Lanka’s chapter on enforced disappearance risks being closed by a state advancing a sanitised narrative of the past.  By broadening the resistance, Sri Lanka finds itself as having an avenue to keep the space for accountability open.  In the pursuit of justice, this avenue is worth considering to firmly resist the ‘master’.

ABOUT THE AUTHOR

StephanieNicolle - headshotStephanie Nicolle works as a researcher in Sri Lanka. Her research interests mainly include ethno-religious conflict, memory studies, media ghettoisation and postcolonial discourse. She graduated from the University of Colombo with a BA (Hons.) in English and minors in International Relations and Sociology.

 

 

 

 

 

 

 

 

 

Proposed amendments to the Human Rights Act to disadvantage UK war crimes victims

by Alexandra Fowler (first published on Oxford Human Rights Hub)

On 18 March 2020, the UK Minister for Defence introduced into the UK Parliament his promised package of new legislation designed to ‘protect veterans’. Entitled the Overseas Operations (Service Personnel and Veterans) Bill, the proposed laws would amend the UK’s Human Rights Act 1998 (HRA) in ways that impact on its human rights obligations, including under the European Convention on Human Rights (ECHR).

Civil Claims by Victims in UK Courts

Civil claims for compensation in UK courts for death, abuse and other mistreatment amounting to war crimes can be brought in two ways; the first is an action in UK common law for the tort of assault and/or battery.  The second avenue is that under the Human Rights Act 1998, which was enacted to give effect to the UK’s obligations under the ECHR. Importantly for victims, Article 13 of the ECHR (see HRA ss6-8) requires a member State to grant an effective remedy (often monetary compensation) for violations of protected rights. The HRA/ECHR regime applies in whichever territory the UK exercises sufficient authority and control (jurisdiction), and this can occur outside EU territory (Al-Skeini). While time limitations may operate to refuse civil redress in tort, an HRA claim can still be upheld, such as in Alseran (2017).

Against this background, the Bill’s Section 11 proposes to insert a new provision (s7A) in the HRA which imposes a maximum of six years’ time limit (or 12 months from the date that the victim knew or ought to have known that the alleged violation was committed by UK troops) for bringing civil claims under the HRA in connection with overseas operations. Although this appears to bring things in line with the time period for personal injury claims under the Limitation Act 1980, the provision is troublesome because in recent conflicts in which the UK has been involved war crimes victims already face substantial difficulties in making claims. As in Alseran, many if not most victims have been prevented by both the local law and by logistics from making claims until long after the alleged abuse took place, often significantly more than six years. The existing HRA requires courts to take such factors into account in deciding whether the claim has been improperly delayed.  The new Bill will take this discretion away, resulting in most, if not all, of the remaining claims from Iraq and Afghanistan being time barred, and future claims running the risk of being so too.

US_Troops_Afghanistan

Is a Time Bar consistent with UK Obligations under the ECHR?

Is the time bar restriction in the new Bill consistent with the right to a remedy stipulated in Article 13 of the ECHR? Much of the European Court’s caseload deals with unreasonable delays in obtaining a remedy, and the Committee of Ministers has accepted that deadlines within national systems to accelerate or conclude investigations and/or the judicial process are legitimate (see Rec(2004)6 on the improvement of domestic remedies). Given the provisions in the Bill, many alleged victims will probably find that a judicial remedy is not available by the time they finally lodge a claim, but it is true that on the face of the law an opportunity has been given for a remedy in the courts.

Of course, remedies need not be judicial. The UK operated an extensive system of administrative remedies over the years of its involvement in Iraq, and its Ministry of Defence paid nearly 1500 claims totalling almost £22 million in compensation for war crimes over the period 2003/4 – 2016/7.  In addition, over 4500 claims from Afghan civilians had been made, up until 2015, resulting in out-of-court payments of estimated £5.3 million.

If this Bill is enacted, the operation of a credible administrative compensation mechanism will be essential to avoid potential liability for breaches of ECHR Article 13. Even so, it sends a very detrimental signal to the world about the UK’s commitment to justice and human rights.

 

ABOUT THE AUTHOR

Alexandra_fowlerDr Alexandra Fowler is a specialist in public international law at the University of Westminster, London. She holds a Doctor of Juridical Studies from the University of Sydney, and has taught international law and constitutional law at a number of Australian universities.  Her research interests include victim compensation in international humanitarian law, international human rights and international criminal law, and transitional justice;

The dramatic escape of Nissan’s former CEO tests Japanese Criminal Justice System

by Teppei Ono, Secretary-General, Center for Prisoners’ Rights Japan

With the world wondering if the Olympics will go ahead in Tokyo this summer, due to the impact of Coronavirus, Japan has found itself in the spotlight for a very different reason in recent months.  The country’s criminal justice system hit the headlines towards the end of 2019 when the former boss of Nissan, Carlos Ghosn, was indicted for falsifying financial reports and subsequently fled the country to Lebanon.  He immediately went on the offensive, alleging draconian criminal justice procedures, lengthy pre-charge detention periods and repeated interrogations.

Ghosn had been released on bail, on 25 April 2019 after a total detention of 129 days and total bail bond of 1.5 billion yen ($13.6 million).  His escape from Japan was a clear breach of his bail conditions which included a prohibition on overseas travel.  Ghosn held a press conference in Beirut on 8 January 2020, in which he stated that Japan’s legal system violates ‘the most basic principles of humanity’.  In response, Justice Minister Ms. Masako Mori held a press conference at midnight on the same day, commenting, “[H]e has been propagating both within Japan and internationally false information about Japan’s legal system and its practice.  That is absolutely intolerable”.  Much of the Japanese media criticised his escape as a ‘cowardly act’. Some have attacked his defence counsel and the court, which applied for and permitted bail.

Carlos_Ghosn

Carlos Ghosn’s escape tests the Japanese Government’s approach towards criminal justice, which has long avoided any dialogue with the international community.  This article looks back at how the Japanese Government has responded to advice from the international community and how the former Nissan chief’s case proceeded.

The coming years will be significant for Japanese criminal justice, as the United Nations Crime Congress, the largest UN conference in the field of crime prevention and criminal justice, will be held in Kyoto, Japan.  The conference was initially scheduled for April 2020 but has been reportedly postponed at the time of writing, due to the outbreak of Coronavirus.  In recent months, the Japanese criminal justice system has been attracting unprecedented attention from the international community.

 

Being proud of a ‘medieval’ legal system?

Japan’s ‘Hostage Justice’ system, in which suspects can be held for a long period of time (a maximum of 23 days) in harsh conditions, without the presence of defence counsel, has been internationally criticised.  The UN Human Rights Committee (HRC) and the Committee against Torture (CAT) have repeatedly expressed their concerns over the excessive reliance on custodial interrogations.  Their recommendations include that Japan guarantee the right to have a lawyer present during interrogations, and introduce legislative measures setting strict limits on the duration and methods of interrogation.  Nevertheless, investigating authorities have not implemented the recommendations, still relying heavily on interrogations and confessions, despite recent criminal justice reform.

Ministry of Justice Japan

Ministry of Justice Japan

The clinging of the authorities to established practices brings to mind a scene at the CAT panel review of Japan on 21 May 2013 in Geneva.  The video footage of the incident went viral.  The Committee members had raised a number of issues, such as suspects’ access to defence counsel and time limits on detention, which the Japanese delegation continued to brush off.  This then led a committee member to describe Japan’s legal system as ‘medieval’.  In rebuttal, Mr Hideaki Ueda, Japan’s Human Rights Envoy to the UN said, “Certainly Japan is not in the middle age. We are one of the most advanced countries in this field”.  His comment provoked laughter among the committee members, which prompted a furious response from the ambassador in which he shouted “Why are you laughing? Shut up! Shut up!”, surprising both the committee members and the audience. He asserted his pride in a legal system that relies heavily on interrogations and coerced confessions, and in a series of statements published on the Ministry of Justice website after Ghosn’s escape, it appears that little has changed.

 

How did Ghosn’s case play out in Japan?

Carlos Ghosn was arrested for the first time on 19 November 2018. He was then interrogated until his indictment on 11 January 2019.  According to his former defence counsel, with the exception of one day, he was interrogated every day from 19 November to 11 January, with each interrogation lasting anything up to 11 hours.  During this period, he was arrested three times and his detention was repeatedly extended.

After three requests, the court finally granted bail and set the bond at one billion yen with 10 bail conditions.  These bail conditions included, but were not limited to setting surveillance cameras at the entrances to his residence, staying at one of his defence counsel’s offices from 9:00 am till 5:00 pm on weekdays, reporting all phone calls and visitors to the court, and a prohibition of contact with related persons.  The former CEO was then released after 106 days of confinement at Tokyo Detention House on 6 March 2019.

The investigating authority, however, re-arrested him one month later for aggravated breach of trust.  Once again, the investigating authority began harsh interrogations.  From the 5th until the 21st April, the prosecutors interrogated Ghosn, his defence counsel keeping a record of all events on his blog.  His counsel expressed strong opposition to the daily interrogations but was ignored. Following an indictment for breach of trust on 22nd April, the defence counsel filed a petition for bail.

The court granted bail on conditions similar to those of the previous bail but this time with a prohibition of contact with his wife, because the judge considered her to be related to the charge.  The former Nissan CEO was released again after posting another 500 million yen on the 25th of April. The defence team filed an appeal to the bail condition prohibiting the defendant’s contact with his wife, as a violation of article 17 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees that no one shall be subject to arbitrary interference with family.  The Tokyo District Court and the Supreme Court, however, turned down the appeal without any mention of the ICCPR.

After fleeing Japan, Carlos Ghosn issued the following statement: “I am now in Lebanon and will no longer be held hostage by a rigged Japanese justice system where guilt is presumed, discrimination is rampant and basic human rights are denied in a flagrant disregard of Japan’s legal obligations under international law and treaties it is bound to uphold”.

 

Japanese Government’s response to the escape

In a series of statements made by the Justice Minister in the immediate aftermath of Ghosn’s escape, she said, “Japan’s criminal justice system sets out appropriate procedures and is administered properly to clarify the truth in cases, while guaranteeing basic individual human rights. Each nation’s criminal justice system has its roots in its history and culture, being formulated and developed over a long period of time. Therefore, there is no superiority or inferiority among legal systems of different countries”. Her comments reflect the Government’s stance in dismissing the recommendations of international bodies such as the UNHRC.

Masako Mori press conf

A history of wrongful convictions in Japan tells us that prolonged interrogations have the effect of mentally exhausting suspects and forcing their confessions.  Protracted interrogations, such as those used against Carlos Ghosn, potentially threaten the right to remain silent, which is why UN treaty bodies recommend the Government guarantee a right to have a lawyer present during interrogations and set strict time limits.  Despite the framework laid out in International Law, the Government has remained deaf to advice from the international community.  The Justice Minister was also forced to back-track on comments she made at a press conference that Carlos Ghosn should come to Japan to “prove his innocence”, turning the ‘presumption of innocence’ on its head.  She later clarified the statement by saying she meant to say he should ‘assert’ rather than ‘prove’ his innocence.

The Justice Minister has since promised to deal with his escape and is working closely with the relevant countries, International Organisations and other stakeholders in order to fulfil this promise.  If the Government is sincere in asking for cooperation from the international community, they surely need to be sincere in following up on international recommendations.   Japan’s human rights status will be reviewed at the UNHRC’s reporting procedure in October.  Let’s hope that the Japanese Government have learned from their rather undiplomatic outburst in 2013, to listen carefully to any recommendations and consider them seriously.

ABOUT THE AUTHOR

Teppei_Ono_photo

Teppei Ono is a staff lawyer at the Japan Legal Support Center.  His main area of practice is prison law, criminal defence, immigration/refugee law and legal aid.  He has served as Secretary General of the Center for Prisoners’ Rights Japan since 2019.