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.
Note 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.
Clive 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
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
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
Q: 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).
Q: 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
Q: 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
Q: 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.