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.

 

 

 

Might or right: The devastating impact of US sanctions on the rights of Iranian citizens amidst the Covid-19 outbreak

by Hetal Doshi & Sankalp Udgata

Much has been said about the insensitivity of the Trump administration’s approach to tackling the outbreak of COVID-19, but little compares to Trump’s unswerving decision to continue economic sanctions against Iran amidst this global pandemic. The spread of coronavirus has been nothing less than a catastrophe for the people of Iran.  As COVID-19 rips through country after country, Iran’s experience has been particularly devastating with more than 182,525 confirmed cases and 8,659 declared deaths (as of 11 June 2020).  With no end to this pandemic in sight for the foreseeable future, the Iranian government is facing the unique challenge of providing medical equipment to doctors alongside access to food, basic medical facilities, and isolation centres to patients while, at the same time, trying to uplift the already crippled economy.

It is undisputed that a great deal of the suffering of the Iranian people lies within the responsibility of their own government. Nevertheless, the re-imposition of severe economic sanctions in 2018 by the United States after it unilaterally withdrew its participation in the Joint Comprehensive Plan of Action (i.e. the nuclear deal), has had devastating impacts on the economy and has severely undermined humanitarian trade with Iran.

The damage done to Iran’s economy by US sanctions left it ill-prepared for the COVID-19 crisis. The gross domestic product of Iran shrank by 9.5 percent, oil exports were down by 80 percent, and inflation is now nearly 40 percent. Now, with the spread of coronavirus in Iran increasing at an unprecedented rate, sanctions are contributing to a shortage of testing kits, medical devices, and hygienic supplies required to prevent further spread.

Impact of ‘Inhuman’ Sanctions on the Right to Health  of Iranian Citizens’

While the United States government continues to insist that it has created exemptions for humanitarian imports into its sanctions regime, broad sanctions against Iranian banks, coupled with aggressive rhetoric from US officials and a lack of clarity on how secondary sanctions will be imposed, have drastically constrained Iran’s ability to finance such humanitarian imports. A Human Rights Watch report also states that, in practice, these exemptions have failed to offset the strong reluctance of US and European companies and banks to risk facing the legal and financial risks associated with exporting or financing exempted humanitarian goods, such as vital medicines and medical equipment.

DT signing EO sanctions

 

The consequence of such sanctions has resulted in impairing the ability of Iranian people to secure their right to health and access to essential medicines.  Health is a fundamental human right indispensable for the exercise of other human rights and is recognized under Article 25(1) of the Universal Declaration of Human Rights and Article 12(1) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR).  In July 2019, the UN Special Rapporteur on the situation of human rights in the Islamic Republic of Iran stated that the sanctions and banking restrictions will unduly affect food security and the availability and distribution of medicines and pharmaceutical equipment. The continuance of these sanctions has resulted in nothing less than gross violations of the human rights of Iranian citizens.

Extra Territorial Application of the Right to Health

The question of the extra-territorial application of the right to health has always been debatable. The ICESCR does not contain any provision on the jurisdictional or territorial applicability of the treaty. However, CESCR General Comment No. 14 declares that all states must take steps to prevent violations of the right to health (Article 12) in other countries. Thus, under ICESCR the USA has an obligation to ensure that its actions take due account of the right to health of citizens of other countries.

The US is in direct breach of these obligations, as the brunt of the economic sanctions on Iran is being faced directly by Iranian people.   Iranian suppliers of equipment like respiratory masks and ventilators are out of stock, and the Iranian government is struggling to import the raw materials that it needs to manufacture antiviral drugs amid the raging COVID-19 pandemic. These sanctions, as discussed above, have crippled the economy of Iran and prevented the import of health care equipment required to control this pandemic. This has direct effects on the availability and quality of health care facilities which form an essential element of the right to health, thus resulting in a clear violation of this right.

Coronavirus_patients_at_the_Imam_Khomeini_Hospital_in_Tehran,_Iran_--_بخش_ویژه_بیماران_کرونا_در_بیمارستان_امام_خمینی_تهران_--_March_1,_2020

It is important to note that in the case of Iran v. USA the International Court of Justice (ICJ) has held, in its order on provisional measures, that US Sanctions are detrimental to the humanitarian needs and rights of Iranian citizens, and its exemptions do not help with assurances to the contrary.  Instead of adhering to the order, the United States government decided to terminate the 1955 U.S.-Iran Treaty of Amity, which was the basis of the relief granted by the ICJ.  This was announced on the same day in which the ICJ passed the order.

The paradoxical stance of the US Administration

The contradictory stance of the US government is further evident as, despite sanctions being exempt on humanitarian goods, the US Treasury Department had previously prosecuted medical companies for selling small amounts of medical supplies to Iran. While Iran’s dire circumstances have prompted calls from around the world for the United States to roll back its deep economic sanctions on the country, the US has instead imposed new sanctions amid the increasing cases of COVID-19 which will further add to Iran’s economic and diplomatic isolation.

With hospitals overrun and Iranian doctors struggling to procure necessary equipment, the US must be part of the solution rather than part of the problem. A global pandemic requires a global response, not a piecemeal one based on local politics.

 

ABOUT THE AUTHORS

Photo.HetalHetal Doshi is a law student at the National University of Study and Research in Law (NUSRL), Ranchi, India.  She can be reached at hetaldoshi.hvd@gmail.com.

 

Photo.SankalpSankalp Udgata is a law student at the National University of Study and Research in Law (NUSRL), Ranchi, India.  He can be reached at sankalp.udgata123@gmail.com.

Extraterritorial Human Rights Obligations in the Context of State Surveillance Activities?

By Vivian Ng & Daragh Murray

On 16 May 2016, the Investigatory Powers Tribunal, which was established under the Regulation of Investigatory Powers Act 2000 (RIPA) and provides oversight of public authorities in the United Kingdom (UK), released its decision in Human Rights Watch & Others v The Secretary of State for the Foreign & Commonwealth Office & Others (HRW v Secretary of State). The applicants claimed that UK public authorities unlawfully intercepted, stored and used their information and communications, thereby interfering with their right to respect for private and family life, and their right to freedom of expression, as guaranteed under the European Convention on Human Rights (ECHR). This post will examine the Tribunal’s decision, and offer some suggestions relevant for consideration should further claims be made to challenge the Tribunal’s decision. There is no possibility of an appeal against the Tribunal’s decision, but complainants can take claims further to the European Court of Human Rights (ECtHR), and these issues have been laid out in light of that possibility.

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