22
Yes, We Can!
On the corner stood a mysterious, flat concrete bunker, with a small iron gate that appeared to be rusted into place. Hidden by a wall seven feet high, it could barely be seen from the street, and over ten years I never saw anyone enter, let alone come out. If I opened my sash window in the building next door and leaned out, looking to my right, I could see the roof of the building. It was bigger than I had originally thought, with odd little bits of greenery, fern and buddleia, taking root in the cracks. It’s all gone now, replaced by a commercial job several storeys high.
My window was in number 14 Tooks Court. When I first set up chambers, there was a rumour current that the bunker next door contained a secret entrance to an underground tunnel, and a local workman told me that he thought it was connected to Downing Street, so that the Prime Minister could do a runner if under attack from irritating protesters or the occasional more serious bazooka – though quite why he would want to pop up next to me I’m not sure.
Maybe the workman was not so far off the mark. In January 2009 an unusual property came onto the market: six interlinked stretches of tunnel about one and a half miles long, capable of housing 8,000 people. It comes complete with canteen, restaurant, recreation room, cinema, bar, telephone exchange, generators and an artesian well. At least that’s what they had at one time.1 This unique bargain basement runs a hundred feet below High Holborn, Chancery Lane, and Furnival Street adjacent to Tooks Court. It was originally built by London Transport as a bomb shelter during the Blitz, but towards the end of the war the tunnels and their contents became classified information subject to the Official Secrets Act. MI6 took them over under the cryptic title of the Inter-Services Research Bureau, followed by the Public Record Office and its classified archives. Latterly British Telecom used them to operate a huge exchange, which had been earmarked during the Cuban missile crisis in 1962 for a post-nuclear communications centre, and for a hotline between the Kremlin and the White House. The tunnels remained classified information, referred to only as the Kingsway or 2147 tunnels, right up to 2005.
These are elaborate provisions to deal with the horrors of war, and it would be comforting to imagine that the tunnels’ obsolescence and impending sale marks a magic milestone towards a new world order. By the beginning of the third millennium you might have thought it would not have been beyond the wit of man or woman to have devised an effective method of conflict resolution without descending into the mire of massacre, death and destruction. I mean, if they can put a man on the moon . . . ‘Why not put all of them there?’ says a sizeable chunk of womanhood: mildly uncharitable, but it might be a solution.
Meanwhile what to do? It’s certainly not for want of trying by those who care; the trouble is that there are quite a few who don’t. Some believe it will sort itself, but I don’t think so. We have just witnessed the catastrophic results of three decades of unregulated, untrammelled economic free enterprise in the marketplace, and inevitably it’s the weak, the impoverished, the vulnerable and the disempowered who are hit the hardest. The same applies to power-crazed individuals and states that employ terror to further their aims. Some continue to put their trust in politicians: need I say more? Some throw up their hands in the face of seemingly impossible odds and retreat. Some simply decide to put up with the situation as it is.
I am a firm believer in change. It is an intrinsic part of the natural order to which we are all subject, and it is the one thing that cannot be stopped. Therefore either we control change or we are controlled by it. The bigger the force, the bigger the need for collective effort. No one person can do it alone, but that’s not the same as saying that an individual contribution, however small, is meaningless or ineffectual. Each endeavour is a cause that has an effect. It may not be immediately discernible; it may take more than a lifetime. It is the absence of endeavour which permits the ascendancy of doctrines suffused with the ‘might is right’ attitude and ‘gunboat diplomacy’. In words frequently attributed to Edmund Burke, the Irish-born eighteenth-century Whig politician, ‘It is necessary only for the good man to do nothing for evil to triumph.’
The endeavour I have in mind is something to which we can all contribute, but as a lawyer it is something towards which I feel a special obligation. I’ve tried to keep a measured focus on maintaining a flame lit by others far more inspirational and creative than me. We are custodians of a movement that should be treasured rather than trashed: peaceful coexistence within a recognised and respected international rule of law. Up jump the Hobbesian cynics, the moaners and groaners, the new-age realists. ‘Utopian claptrap!’ they chant in unison. ‘It hasn’t worked, it doesn’t work, and it never will.’ Without realising it, they have in fact touched the void, the vacuum. It’s time for a little taste of Utopia, a little vision of value in an era of mad materialism.
The movement and its concepts are a temporal pinprick compared with the history of the universe or even humankind, and patience and perseverance are required in abundance before the full fruits of its growth can be gathered.
Amazing sacrifices have been made. Blood, sweat and tears have been shed over at least three centuries by progressive thinkers from all parts of the world. To let this go would be an unbearable betrayal.
An early protagonist was the eighteenth-century English political philosopher Tom Paine (1737–1809). He has never been adequately recognised and certainly wasn’t flavour of the month at the time in England, so he fled abroad and became an influential figure in two revolutions, the American and the French: quite good going for one lifetime. Both revolutions spawned seminal written constitutions and documents delineating basic human rights: The Declaration of the Rights of Man and of the Citizen approved by the National Assembly of France in 1789, and the United States Bill of Rights in 1791. Paine has been credited with the first use of the term ‘United States’ when writing his incisive pamphlet entitled The Crisis2 in support of the American War of Independence. He is probably best remembered for Rights of Man, part one of which was published in 1791 and was dedicated to George Washington.
What tends to get overlooked is that his thesis about the necessity for a union of states also has resonance for a union of nations. This has been summarised succinctly by John Keane, who like me is a Professor at the University of Westminster:
Paine argued that the best antidote to war is the formation of an international confederation of nationally independent and peacefully interacting civil societies that keeps an eye on the international system of nation-states, taming their bellicose urges. He was certain that democratic republican states, guided by civil societies held together by reciprocal interests and mutual affection, would make for a new global order freed from the curse of war.3
I have been a long-time admirer of Paine’s courage, his enterprise and his evocative prose, and it was a privilege to deliver the biennial Tom Paine Lecture at the University of East Anglia in 2003, and to address the Tom Paine and Headstrong Societies in Lewes, Sussex, on more than one occasion.
The notions which Paine articulated became the bedrock for a line of innovative, bold initiatives that punctuated the history of the twentieth century, and it is no accident that they, and Paine’s constructs, were underpinned by statements of principle about the rights of the individual. If you’re trying to outlaw war and promote peace, it helps to know why. What is it you are striving to protect by the advent of peace? So, unsurprisingly, the right to life is top of the bill.
There are many landmarks in the twentieth century, but the ones worth selecting are: the League of Nations (1919); the Kellogg-Briand Pact (1927–8, where an American Republican combined with a French socialist to outlaw war); the United Nations Charter (1945); the Universal Declaration of Human Rights and the European Convention on Human Rights (1948), a spectrum of covenants covering several political, economic, social and cultural rights; the Geneva Conventions (1957);4 and the Second Treaty of Rome in 1998.5
No one is labouring under any illusion about these initiatives. They are fragile. Not all nations have signed up, and the ones that have occasionally withdraw when it suits them, or else employ the veto; others don’t pay their dues, and many cannot afford to do so. For those who break the rules, what are the sanctions? Who provides the enforcers, the international police? On top of this is the over-arching concern that the whole edifice is too embedded in the ethos of Western industrialised states and the European Enlightenment.
These reservations cannot be ignored, but there is no reason to surrender. The concepts of respect, arbitration and reconciliation attract universal understanding, even if the methods of fulfilment differ.
One method that has steadily gathered momentum and approval is a judicial structure of courts which transcend national boundaries and provide universal jurisdiction and accountability. The International Court of Justice in The Hague, referred to as the ICJ or the World Court, has been in place for a number of years, settling disputes of principle between member states. Most recently, for the first time, an International Criminal Court (ICC)6 has been established at The Hague. This is a permanent body intended to replace the ad hoc tribunals that have been dealing with specific theatres of war – Nuremberg and Tokyo after the Second World War; the International Criminal Tribunal for the former Yugoslavia (ICTY)7 after the genocide in the Balkans; others in Africa dealing with genocide in Rwanda and Sierra Leone; and another in Cambodia trying five senior Khmer Rouge leaders accused of genocide thirty-five years ago, which opened in April 2009. The ICC took years of negotiation and diplomacy to forge, and while the vast majority of the world nations signed up, a few did not. Among those that did not were the USA and Iraq, probably because they thought they might be among the first in the dock.
Member states are given first bite at the cherry to bring suspects to book. This may be too much to ask. The infrastructure may not be in place; the culprits may be viewed as local heroes; all the witnesses may be too intimidated to come forward. Occasionally on a local level there is a reticence to participate lest it be thought that the whole process might reopen rather than heal old wounds. If a suspect cannot be tried locally, then the International Criminal Court may take over. In March 2009 the court for the first time issued an arrest warrant against a serving president – President Bashir of Sudan, for seven counts of war crimes in relation to Darfur.
The UK incorporated the ICC into domestic legislation in 2001,8 just as it incorporated the European Convention in 2000, and everyone in my chambers was singularly proud when one of our number, Adrian Fulford, became the first British judge there. The court is concerned with offences that could not be more fundamental – genocide, crimes against humanity and war crimes – and the sort of behaviour that might be involved is not difficult to envisage: murder, abduction, kidnapping, torture, rape and disappearances. There are, however, two areas upon which consensus has not so far been reached: the crime of aggression and the definition of terrorism. Once again this may be because some of the major nation states are more than a little sensitive about their own track records.
Against this background my own focused contributions pale into insignificance, but I sincerely hope they have helped towards establishing some of the indispensable bricks in the wall of peace and justice (you certainly can’t have one without the other); and they do show what is possible even on the smallest scale. No one should imagine they can’t make a difference.
In the early 1980s I joined forces with a number of other lawyers who wanted to supplement the exemplary work carried out by Amnesty International, which has consistently exposed the plight of political prisoners worldwide. As lawyers, we wanted to assist in practical ways.
A trio of us thrashed out both the name and the design logo: InteRights. Nothing world-shattering, but you’d be amazed how much longer it takes to sort out the colour of the wallpaper as opposed to the nature of the room it’s in. InteRights is now a well-established and highly respected international centre for the legal protection of human rights, facilitating essential legal challenges in different corners of the world. Not long after its inception I parted company with it, when I felt that its emphasis on referral and academic research was too great, but this has since changed. What I had in mind was an agency more akin to Médicins Sans Frontières or Avocats Sans Frontières, which are now very active in a variety of war zones.
During the 1990s there were three very different groups to which I lent wholehearted support, each of them employing different techniques and legal avenues to promote the twin objectives of peace and human rights.
The first was a consortium of non-governmental organisations (NGOs) that came together in a worldwide campaign known as the World Court Project,9 one of whose main purposes was to petition the ICJ in The Hague for a declaratory judgment in 1996 about the illegality of nuclear weapons. There are of course several aspects to this: the possession of such weapons, the threat of their use and finally their actual use, and in a sense the ICJ is a creature of the United Nations and is normally approached either by states themselves or by agencies of the United Nations, such as the General Assembly. The court’s opinion, although only advisory, is one of the highest authority. The issue was given careful and lengthy deliberation by fifteen judges after full hearings involving all the interested states and UN agencies. On this occasion forty-three states (a record number, including the USA, UK and France) filed written submissions, and twenty-two (including the NATO nuclear states) made oral statements.
The ruling was historic in that it considered the threat or use of nuclear weapons to be generally illegal, and states have an obligation to conclude negotiations on their elimination.10
The element of elimination is crucial. The Nuclear Non-Proliferation Treaty (NPT) signed by the major nuclear powers in 1968 reflected a significant bargain struck at that time. In exchange for allowing the five major nations (including the UK) to retain their nuclear capability, it was understood that they would only be deployed for collective protection, particularly of the weaker nonnuclear powers. At the same time there was supposed to be a staged reduction in this capability, to the point of elimination. Nearly forty years later that has not been achieved, which is all the more poignant when you consider the fuss that has been made by some of the five major powers about North Korea and Iran.
Mordechai Vanunu paid a very heavy price as a whistleblower on nuclear capabilities. In 1986 he provided the Sunday Times with information and photographs about Israel’s clandestine nuclear facilities below the Negev Desert at Dimona. Israel has never come clean about their existence, nor has it allowed international inspection, and its nuclear programme is almost certainly in breach of the 1968 NPT. If you combine this with Israel’s breaches of international law and UN resolutions, the result comes close to the very rationale that the international coalition used for the invasion of Iraq.
Vanunu was entrapped in London by a Mossad agent and lured to Rome, where he was drugged and kidnapped for his onward journey to Israel. Once there, he was put on trial in secret, shackled in every way (including tape across his mouth) and sentenced to eighteen years’ imprisonment, most of which he served in conditions of severe physical confinement, including eleven years in total isolation.
He was finally released in 2004. Beside his own internal courage and strength, one of the ways in which hope has been kept alive for him has been the combined efforts of organisations11 and individuals everywhere. I was but one of many who relentlessly demonstrated and petitioned for his release, and then for the lifting of ongoing extraordinary restrictions on his freedom of movement. Vanunu is still virtually under house arrest in East Jerusalem. He is awaiting the result of a ruling about a further three-month prison sentence imposed for ‘talking to foreigners’ – who happened to be from the media.
The UK has also set an appalling example in relation to nuclear proliferation, which has continued right up to the minute, with revelations that the government plans to spend £3 billion on new warheads for the Trident submarine nuclear system.12 Most Trident warheads are 100 kilotonnes – about eight times larger than the bomb used on Hiroshima – and most of the submarines carry at least six of these. Such enormous destructive power, combined with the ability to cause untold human suffering and damage to future generations from radiation effects, makes these weapons incapable of complying with humanitarian law, because in effect they are disproportionate and indiscriminate.
Fortunately there are groups of citizens similar to Mordechai Vanunu and those involved in the World Court Project, stretching from New Zealand right across to Canada, who are prepared to keep a close watch on this form of the arms trade. On 1 July 2008 a cross-party group representing sixty-nine members of the European Parliament from nineteen European Union member states launched a Declaration in support of the Nuclear Weapons Convention to mark the fortieth anniversary of the NPT. The appeal calls for multilateral negotiations to prevent proliferation and achieve non-discriminatory nuclear disarmament.13 President Obama lent his weight to these efforts in a speech in Prague on 6 April 2009. He made clear that he would ‘aggressively’ push for the Senate to ratify the Comprehensive Test Ban Treaty and that he will ‘strengthen’ the NPT. ‘The basic bargain is sound,’ he said. ‘Countries with nuclear weapons will move towards disarmament, countries without nuclear weapons will not acquire them and all countries can access peaceful nuclear energy. If we are serious about stopping the spread of these weapons, then we should put an end to the dedicated production of weapons-grade materials that create them. That’s the first step.’14
The second group with which I became involved from its inception is the Kurdish Human Rights Project (KHRP).15 The Kurds are a dispossessed nation, bearing many similarities to the Armenians and the Palestinians. Many of the Kurds live in the Zagros Mountains which border Iraq, Iran, Syria, Turkey and the former Soviet Union. The diaspora involves millions of people in each of those areas. The Kurds have been bombed and exterminated, their villages and livelihoods razed to the ground. In 1992 a project was inaugurated on a non-partisan basis dedicated to the human rights of all people in the Kurdish region. At the beginning it was difficult to raise awareness and garner support, as the plight of these people was not high on anyone’s agenda, but persistence has paid off. I was happy to become a patron and speak whenever needed, and under the leadership of Lord Avebury, Kerim Yildiz and Mark Muller, QC, this has become one of the most successful campaigns of its kind. The KHRP has brought thousands of cases before the European Court of Human Rights concerned with extra-judicial killings, disappearances and destruction of property, and each case has resulted in real benefits on the ground.
You don’t have to be a lawyer to take action. Tom Carrigan found himself in a spot of bother a few years ago and was represented by two members of my chambers. Once the dust had settled after his brush with the law, he became a professional photographer and visited Halabja in Kurdistan, Iraq. Saddam Hussein had attempted to wipe out the Kurdish population there in the 1980s; he had not succeeded and they were attempting to rebuild what had been destroyed. Tom made a film about the reconstruction and produced many strong images, which were exhibited in Tooks Chambers in 2008. But it didn’t stop there. He is returning to Halabja with money he has raised, to help build a much-needed children’s playground.
The final example also shows what can be done by both lawyers and non-lawyers working together. Some say that what happens on the other side of the world has little or nothing to do with us: it’s their problem, let them get on with it. However, if we are right to believe that there is a universality about certain intrinsic values and rights, then it matters not where the invasion or the denial takes place. That value is indivisible, and any attack upon it is also an attack upon each one of us. In the words of Martin Luther King, ‘Injustice anywhere is a threat to justice everywhere.’ A collective response is the only true defence.
Anne Wright realised this is much as anyone, and once her family had grown up, she left the comfort and security of her north London home in order to perform extremely dangerous work in Colombia. For over ten years lawyers there representing disempowered communities and workers have suffered all kinds of harassment and even death, and have banded together in a collective (Lawyers’ Collective José Alvear Restrepo, CAJAR).16 Their lives are watched day and night, and the repression is endless; physical attacks happen regularly and without any warning. Twenty to thirty lawyers and human-rights defenders are killed or attacked every year in Colombia alone, simply for going about their job.
Anne joined Peace Brigades International (PBI), established in 1981,17 to provide what they call ‘protective accompaniment’: you become a shadow for a threatened lawyer as they go about their work. In that way the risk of assault or death is reduced and you provide an extra pair of eyes to watch the watchers. Needless to say, it cannot guarantee that the anonymous assassins will be deterred, but PBI is effective in dissuading violence towards persecuted activists by creating what they term a ‘space for peace’.
I had met Anne over thirty years ago when I had played rather stolid football alongside her husband and the wizardry of his South American colleagues. When I heard from her about the precarious predicament of the lawyers she accompanied, I felt some form of extra support had to be marshalled in the UK, so I met the President of the lawyers’ collective in London and suggested that individual lawyers under threat could be sponsored by lawyers in England, with a hotline that could be used in times of emergency. This might also be a means of mobilising international political opinion. The Bar Council Human Rights Committee has taken the lead in coordinating action and support for lawyers in Colombia.
In December 2002 I was asked to address a packed meeting organised by the Kurdish HRP at St Paul’s Cathedral, and an audience of over 2,000 came along, mainly to hear the softly spoken but intellectually incisive Noam Chomsky. He was a hard act to follow, and the only way I felt I could retain audience interest after a riveting and detailed exposition of the build-up to the Iraq war was to give an intimate description of the harrowing conditions of a prison cell in Guantanamo Bay, which at that stage was not familiar to many people. I suggested that instead of the spurious dossier about Iraq’s supposed weapons of mass destruction (WMD), a dossier of Blair/Bush illegalities should be sent to the International Criminal Court. In the first instance it’s the job of the British Government to investigate and prosecute any potential crime covered by the three offences within the ICC jurisdiction, which is why they have been incorporated into domestic UK legislation. Over the subsequent months I did not notice or anticipate any interest or appetite for this by the British authorities, especially as the Attorney General would have to give permission for such a prosecution and he was the very person who had endorsed the war as lawful in the first place.
In March 2004 at a press conference at the House of Commons I launched a petition, organised by Legal Action Against the War (LAAW) and signed by other lawyers and politicians, requesting the newly formed ICC in The Hague to investigate the possibility that the UK government had committed war crimes in Iraq. I concentrated on this offence because there were obvious violations by coalition forces in the use of cluster bombs and depleted uranium which have an indiscriminate effect upon people and the environment. It was more difficult than you might imagine finding prominent lawyers prepared to put their reputations on the line, but I have a stalwart friend and comrade in Ian Macdonald, QC, who kindly stood alongside me.
‘Why do you want to put Mr Blair in the dock?’ ‘How are you going to do it?’ ‘What sentence will he get?’ ‘Is there any chance of success?’ These were just a few of the many questions posed by the media, but of course our object is to highlight not only ‘war crimes’ but the illegality of the war itself. It is not an attack on personalities, more an issue of principle. At the end of the day it may not be Tony Blair’s sole responsibility, but there is a need to ensure much greater transparency and accountability in such areas. Presently the prerogative powers enable certain executive decisions, such as signing treaties and declaring war, to be taken without the need for parliamentary consent and without effective remedy in the courts which regard such decisions as matters of high political policy which are ‘non-justiciable’. This remarkable anomaly has to end.
On the one hand, when it suits a government – particularly when faced with political opposition that takes to the streets – ‘the rule of law’ is espoused in the event of public disorder. On the other hand, the crucial decision about such grave matters as going to war, which involves the loss of life as well as huge economic resources, is often taken with scant regard to the same principle.
This is why, as a lawyer, I felt that it was necessary, with others, to take a stand through the courts, because history has demonstrated that silence is the handmaiden of oppression. Perhaps the most important aspect of all of this for me, with all my children and grandchildren, is the example being set for future generations. The example or message is clear: ‘might is right’. How can we expect those growing up and watching this spectacle to abide by the law in their domestic lives when such flagrant disregard has occurred on the international stage, played out on our television screens day after day? First invasion, then torture and rendition. In the wake of the return of British resident Binyam Mohamed, a dossier has been provided to the Metropolitan Police for an investigation into allegations of maltreatment against him and twenty-eight other British citizens held in Guantanamo Bay and elsewhere in which MI5 and MI6 are said to have been complicit.18
A more testing dilemma arose when George Galloway was on the phone from the Middle East, and the maverick MP came straight to the point: was I prepared to represent Saddam Hussein, who had just been discovered in his underground hideout, in his trial for war crimes?
Saddam was an oppressor of the worst kind, and I had represented his victims; but there was a substantial risk that he would not get a fair trial. I took time to think this one through – about twenty-four hours – but in the end I turned it down because I did not feel that I could conscientiously represent him especially given the plight of my client in the Iraqi hijack case (see Chapter 13). Nor was I comfortable returning other cases to which I was already committed. Unquestionably there were breaches of the fair-trial principles in the way that Saddam, although in an Iraqi court, was effectively tried by the Americans, not by an international court, and I don’t believe he should have been executed, because in principle I am opposed to the death penalty (see Chapter 16). I never regretted my decision. Fortunately I have not often had to face dilemmas similar to the invitation to defend Saddam Hussein, because I have been publicly active in a number of political campaigns and there is an element of self-selection in the way cases come my way. People who are sympathetic to the issues I feel strongly about want me, and those who aren’t don’t.
The charter upon which the United Nations is founded was carefully crafted, and provides a clear scheme for peace within a staged framework. At one and the same time it attempts to minimise the risk of war, while appreciating the need for self-defence. Plainly if a real and immediate threat is posed by another state, there may be circumstances in which it is necessary for the threatened state to take unilateral action. The preconditions involve absolute necessity because there is no other alternative, and the response itself must be proportionate, discriminate and specific. It should only continue in such an emergency until such time as the United Nations itself can take over. This explains all the deceit and Dodgy Dossier nonsense about WMD and the myth of the forty-five-minute threat.
What should happen is that the United Nations keeps control of an escalating series of events where tension is running high and there is a risk of war. The charter suggests all manner of alternative means for achieving a peaceful solution. These necessarily involve diplomacy, but beyond that there may be the imposition first of economic sanctions and then of military ones. Ultimately it may be incumbent on the United Nations to intervene with a peacekeeping force. These various stages require the authority of the UN through its General Assembly and Security Council, and the authority is usually couched in terms of a resolution. That is why Tony Blair assured us that we would not go to war without a second resolution. One in which the UN finally determined that Iraq did possess WMD, had broken previous resolutions and resolved that military intervention by coalition forces with UN support could take place. That resolution was never passed.
The USA and the UK had predetermined for at least six months, by their deployment of troops on the ground, that invasion was a foregone conclusion. (Oliver Stone’s film W has a wonderfully underplayed scene with George and Tony in a woodland setting, discussing the inevitability of the situation.)
On 17 November 2008 Lord Bingham, once Lord Chief Justice and senior Law Lord, gave a resounding endorsement to the view that the war lacked legitimacy. Addressing the British Institute of International and Comparative Law, he said, ‘If I am right that the invasion of Iraq by the US, the UK, and some other states was unauthorised by the Security Council, there was a serious violation of international law and the rule of law.’19
Both the Preamble to the UN Charter and Article One deserve to be written on the walls of all our schools and colleges as an agenda for the future, but as far as I can ascertain, they barely get a mention. I make no excuse for setting them out at the end of the chapter.
I have been fortunate to experience the workings of international justice first-hand at the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague, and in 2003–4 I was again away from home for a case that lasted a year and a half – this time flying back and forth between London and Holland, leaving Yvette all week with Freddy, by now a wonderful, socially aware, opinionated teenager. It was tough, but necessary.
There was a team of lawyers from the UK, some from my chambers, and one from the USA, and we were extensively assisted by Dutch lawyers, interns from the United States, Albanian interpreters and researchers from Kosovo. This was the first time I had appeared in a trial at The Hague. The set-up was quite different and it took some time to acclimatise, but fortunately two of my English co-counsel were extremely experienced and had edited the two leading textbooks in the field. The whole process was challenging and exciting. Both the substantive law and procedure are still in their infancy and developing fast; the most interesting part for me was its eclectic nature, deriving its precepts from many different jurisdictions, although the English Common Law has had a singular influence.
Several trials were taking place at the same time, with the court hearing one case in the morning and another in the afternoon. For example, our court, with a different panel of three judges, was being used to try Slobodan Milosevic, who was accused of crimes against the Albanians among others, whereas the person I was representing was an Albanian in Kosovo accused of offences against the Serbs.
Lawyers from all over the world came together to take on these cases – from Canada, the USA, France, the UK, Italy, the Balkans, Australia and Africa. The mix was incredible, and because we were all crushed into a tiny communal robing room there was some pretty interesting intellectual frisson, though the raison d’être for everyone was the same: securing a fair trial for the defendants appearing there. It was a crucible of exchange in which ideas being forged in one trial might feed into another, and everything was televised, so you had up-to-the-minute commentary on developments.
My client was Fatmir Limaj, born on 4 February 1971 in the village of Banja, Mališevo municipality, Kosovo. During the 1998–9 Kosovo war, Fatmir earned something of a hero’s reputation as a commander in the Kosovo Liberation Army (KLA), and led many civilians up into the mountains to escape the oppression of Milosevic’s forces, where they were given shelter and sustenance. After the war he was one of the founders of what is now Kosovo’s second-largest political party, the Democratic Party of Kosovo (PDK): he became deputy leader and a successful, much-admired politician.
Suddenly in 2003 the ICTY charged Fatmir, Isak Musliu and Haradin Bala with war crimes against Serbs and Albanians suspected of cooperating with Serbs during the Kosovo war.
The indictment against Fatmir read:
On the basis of individual criminal responsibility [Article 7(1) of the statute of the tribunal] and on the basis of superior criminal responsibility [Article 7(3)] he is charged with: five counts of crimes against humanity [Article 5] – imprisonment; torture; inhuman act; murder – and five counts of violations of the laws or customs of war [Article 3] – cruel treatment; torture; murder.
The trial commenced on Monday 15 November 2004 in Trial Chamber No. 1, in front of a triumvirate of international judges consisting of Judges Parker (presiding), Thelin and Van den Wyngaert.
Lawyers are entitled to dress in the robes of their home country, but I much preferred the ones customarily used in The Hague. For a start, there was no need for a wig, or a detachable stiff collar, both of which I find decidedly irritating. Instead I wore a floor-length black gown with full sleeves and a row of buttons down the front. Quite fetching really, and reminiscent of a Nonconformist priest. But its real advantage was the complete coverage it provided. Some lawyers wore a suit underneath, some just a T-shirt and jeans – and others rather less than that.
The allegations against Fatmir and his co-defendants were complex. In early 1998, after years of increasing tension and violence, armed conflict commenced between Serb forces and the Kosovo Liberation Army (KLA) in Kosovo, a development consistent with the KLA’s general approach of active, armed resistance to Serb rule and occupation. It was alleged that until at least August 1998 the KLA targeted (by means of intimidation, imprisonment, violence and murder) both Serb and Albanian civilians who were perceived to be either refusing to cooperate with or resisting the KLA by nonmilitary means.
Fatmir Limaj and Isak Musliu were said to have exercised both de jure and de facto command and control over KLA members operating a prison camp in the village of Lapusnik. Fatmir was accused of maintaining and enforcing the inhuman conditions in the camp, which included inadequate food and medical care, and of participating in or aiding and abetting the torture and beatings of the detainees, resulting in some deaths.
According to the indictment, shortly before 26 July 1998 Serb forces regained the area around the prison camp, and as a result the KLA abandoned it. Haradin Bala and another guard were said to have marched about twenty-one detainees from the camp into the Berisha Mountains. On the way they apparently met up with Fatmir, who gave orders, and shortly afterwards they were divided into two groups: the prisoners in one group were released, while those in the other were shot.
These were obviously very serious charges, and Fatmir knew he faced many, many years in prison if convicted. He was a tall, striking and imposing individual whose charisma was almost tangible. Here was a man who was deeply convinced about the moral purpose of the struggle in which he had participated, and during which he had attempted to maintain high standards of discipline and conduct among those he led.
In England the legal profession is divided between barristers and solicitors, with solicitors bearing the burden of investigation in preparation, and barristers that of presentation. In countries where this is not the case, a firm of lawyers carries out the whole exercise. Generally speaking, defence lawyers appearing in international cases in The Hague do not have this system of support. I was therefore faced for the first time in my career with the job of doing everything from start to finish. I’ve always wanted the opportunity to do so, because I felt it would give me a better idea about the quality of the material and evidence available to back up my case: a hands-on approach quickly reveals the pitfalls to be avoided.
Karim Khan, my co-counsel, had been to Kosovo before and was extremely familiar with the hurdles facing us there, as well as the complexities in The Hague. It was going to be necessary to visit all the relevant locations, discover pertinent witnesses willing to come forward, and have them interviewed without fear or favour – no mean task in a war-torn country where suspicion and bitterness run rife.
For my first visit Yvette came along too – as she often has on trips – both to support me and out of an abiding interest in things political. We were to meet Fatmir’s family (though he himself was in custody in The Hague) and try to set up a defence group of people to undertake the tasks I had identified. I don’t think I was fully prepared for what lay in store, and without Karim’s generous and even-tempered demeanour we might not have got very far.
Kosovo is a small, mountainous country with, as we were soon to discover, a very attractive, welcoming and intelligent population. Their whole country – villages, towns, roads, communications, farms, trees, livelihoods and lives – had been decimated during the war. At the time I visited, the United Nations had the task of policing the country and overseeing a programme of regeneration while final-status talks continued with the Serb authorities.
Met at the airport by a driver and a bodyguard (who turned out to be Fatmir’s brother), we drove through much new, solid, rather ugly, perfunctory architecture into the capital, Priština, and one of the first features I noticed was the presence of abundant American and British flags: I soon learned that there was a real sense of gratitude felt by the huge population of Albanian Kosovars for the support they have been given. This was no Iraq. We arrived at the Victory hotel, which was clean and comfortable, and were made very welcome, but we were rather shaken to be awoken the following morning by the sound of gunfire. A lot of political progress had been made since the war, but there was the occasional eruption of suppressed tension. It was an isolated incident, but it did make me think what it must be like to represent people in countries really on the front line, such as Palestine. I honestly don’t know if I’d have the courage, and those lawyers who do are only to be admired.
On the way to meet Fatmir’s family, the route took us through the very mountains into which he had escorted thousands of civilians from beleaguered villages, and I shall never forget those images that flooded our television screens of so many huddled figures trailing up steep slopes away from their homes: women with their babies, young children, the old, sick and feeble. The young men had either joined the KLA to fight or had been driven out of Kosovo into Albanian border refugee camps, or were the unlucky ones who had been captured and summarily massacred in large numbers.
Our jeep stopped to show us the life-saving, improvised shelters and bread ovens made in the caves and crevices in the rocks high in the mountains – the resourcefulness of people under such dire circumstances was staggering. It was Fatmir’s dedication to his community which was largely responsible for their eventual salvation and, as it turned out, his own as well.
We were taken around Fatmir’s area of command – which, our guide pointed out, did not cover the area of the prison camp, whatever the prosecution maintained had happened there – and saw the deserted regional headquarters of the KLA, which had been housed in a remote farmhouse. Across the road at the top of this desolate mountain was a small graveyard, with a series of graves in two semicircles, and it was distressing to read the simple inscriptions: one nineteen-year-old youth lay alongside another of eighteen, then two aged twenty and so on, one after the other surrounded by tattered flags of the KLA fluttering in the bitter wind. There was an eerie silence as Yvette and I stood together, both realising that any one of these young men could have been our son Freddy, had he been born in Kosovo. So many adolescent lives had been sacrificed for an independent homeland.
We went to the so-called prison camp, which consisted of two large outbuildings and a ramshackle series of farmhouses ranged around a courtyard. The advantage of site visits like this is that they bring home a reality which can never be replicated in the courtroom. It was a grey day with a mist hanging over the hillside and buildings, and it seemed such an inconsequential place to have witnessed the inhumanity alleged by the prosecution. The only people left were an elderly couple, and the old man said he knew nothing of such awful events in his home.
The authorities were determined that they were going to be seen to be even-handed in the treatment and trials of both Serbs (in the form of Milosevic) and Albanian Kosovans, and it wasn’t going to be easy to clear Fatmir’s name.
Kosovo is a predominantly Muslim country, which was evident as soon as we arrived at Fatmir’s home. We took off our shoes and were very warmly welcomed by a reception committee of at least fifteen men of varying ages seated on a long padded bench that ranged along one wall of the quite sizeable room, while the women, some very elderly, were seated on the floor at their feet; none of them appeared to speak any English and we certainly didn’t know any Albanian. We were formally introduced to Fatmir’s parents, and Fatmir’s father beckoned me to sit alongside him. Yvette hesitated – oh, help me, Allah, was she going to start an international incident? Very sweetly, she gestured to Fatmir’s mother and patted the space next to her on the bench by my side. The mother graciously rose from the floor and accepted the offer, and thus a thousand-yearold cultural custom was shattered. I then variously ‘signed’ or had translated my intention to defend Fatmir to the best of my ability. On my left, I noticed Yvette was communicating sympathy through her eyes to Fatmir’s anxious mother: ‘Michael will set him free,’ she seemed to be saying. No pressure, then!
We were invited to take a meal with certain of the gathering, and this time we sat on a large rug on the floor with Fatmir’s brothers and some cousins – and were embarrassed to be served by Fatmir’s wife and sisters-in-law, who remained in the background in the adjoining kitchen. The elders on the bench watched carefully as we digested the delicious food while Yvette tried to engage the women in conversation – and suddenly Mirjeta Namani, one of the sisters-in-law, started speaking to us in near-perfect English about the case. She was highly articulate and explained that she was studying law, which was just the break we needed. I was looking for someone to lead the Kosovo legal team and this young woman seemed to be the perfect answer.
We spent another day meeting Fatmir’s campaign group; having long discussions with representatives of all the political factions then vying for power; and enjoying dinner with extremely charming friends and colleagues of Fatmir. But then I really ran into trouble, it appeared there was a reticence about Mirjeta, a woman, leading our research team.
Well, I can be stubborn when necessary. She was ideally suited to the job, keen and efficient, and there was no male equivalent – but even if there had been, on principle I was not minded to acquiesce. This impasse lasted a number of weeks. Every time I thought Mirjeta had started work, there would be a deadly quiet; no sign of the important witness statements we needed for the trial. I knew she was eager to do this investigative work, but there’d be nothing – only silence. When I persisted, the silence turned into excuses suggesting that she wasn’t available. It was pretty infuriating, but there was no way I was giving in over this one.
Eventually I went back to Kosovo to sort it out and draw up protocols for the collection of evidence in a systematic and judicious manner by non-lawyer volunteers. There was a very steely blueeyed, handsome party leader who I thought could help. He was one of those people who would make a brilliant poker player: he gave nothing away, and was completely inscrutable and economical with words. I sat opposite him in a café and told him how it was. ‘You want me’ (and they really did want this arrogant Englishman Michael Mansfield, whose reputation had preceded him), ‘and I have to have Mirjeta to head the investigative unit.’ I resisted blurting out, as if it were The Last Gunfight at the OK Corral, ‘Either that, or I leave now’, as these guys had probably wielded a weapon or two during the war. Still, I stuck to my guns – and heigh ho, Mirjeta did my research; meticulous and invaluable it was too. (By the way, Mr Steely Blue Eyes, Hashim Thaçi, was elected the first Prime Minister of an independent Kosovo in February 2008.)
By now we had built a good team (which I codenamed PROMICK – because the UN force was called UNMIC) and a coherent case. Fatmir was adamant that he had nothing to do with human-rights atrocities, but rather was defending Albanian communities against the Milosovic regime, and he did this by setting up small, local defence units for the villages and by taking them to safety in the mountains when things got really bad. A large measure of the evidence against him was either tenuous or tainted by sectarian prejudice.
During the many months the trial lasted I had plenty of opportunities to sample the delights of The Hague. Most places, including the seafront and the centre of town, were within walking or cycling distance, which helped burn off the seductive patisserie. I had the small red collapsible bike, with a sturdy luggage rack on the back which was useful for passengers: standing room only. The art galleries – one of which contained Vermeer’s Girl with a Pearl Earring and his beautiful dramatic stormy skylines over Delft – were wonderful, but the high spot was the International Jazz Festival. Freddy, Yvette and I enjoyed the last one before it moved to Rotterdam, in a venue right opposite the court building, and the place was packed to bursting, with music flooding out of every nook and cranny from stunning artists, young and old. Joss Stone and Jamie Cullum in particular gave barnstorming performances.
On Tuesday 30 August 2005 I delivered my final submissions to the tribunal.
I don’t ever read a final speech: I use trigger notes and extemporise, so normally I don’t have a record of exactly what I have said. This is the only time I have a transcript, because in The Hague it’s normal procedure (unlike the UK) to record everything, including speeches, not just the evidence.
I started by quoting the words of Noel Malcolm in his introduction to Kosovo: A Short History:20
The Yugoslav crisis began in Kosovo, and it will end in Kosovo. One can hear this saying almost anywhere in the former Yugoslavia; it’s one of the few things on which all parties to the conflicts of the 1990s seem to agree.
I went on to describe the ICTY’s fourfold mission. The fourth purpose is very significant: to ‘contribute to the restoration of peace by promoting reconciliation in the former Yugoslavia’.
After that, it was important in the speech to establish the role of the KLA as a defence force against a superior oppressor, and to suggest to the judges what they might do in Fatmir’s situation:
If you were abroad watching your homeland being destroyed, almost in a war of attrition, conducted by a heavily armed Serbian force, it is unsurprising that you might want to come back and help. As we say, this is not some act of opportunism by Fatmir Limaj, or any of the others who came back. Think of it for one moment. If you’d left Kosovo and you were in Switzerland (as was Fatmir) or Italy or Sweden, wherever, how much easier would it be for you to say, ‘I’m not going back there. Let the others do the fighting.’ So the mere fact of a return, I would submit to you, is a significant one, risking lives. And a lot of people died; of that there is no doubt. And Fatmir’s description to you . . . you’ll remember was a graphic one . . . People are coming back in small groups, crossing the border. Yes, arms are coming over the border because they have but few themselves, as I’ve mentioned, the odd hunting rifle here and there. There’s no point coming back and saying to villagers, ‘Well, just use your pitchforks’ when they come in. You only have to think across to Africa at the moment and what has happened in Darfur and elsewhere. Are people supposed to say, ‘No, no, no, it’s all right, you can do what you want, you can come through, you can destroy all of us; all of our existence can be destroyed, and we’ll just leave.’ Or are they to do what anybody, I think, would submit is a natural and legitimate aim, and that is to protect what little is left? And that is effectively what Fatmir did.
Above all, I wanted to demonstrate that Fatmir was a respected and responsible leader who would not contemplate using any kind of irresponsible, let alone inhuman treatment. There was a stream of witnesses – diplomatic, political and expert – who were familiar with Fatmir’s efforts during the war and after, in the process of reconstruction. They spoke volumes about his determination and, above all, about his pluralist, multicultural approach. None of this could easily be reconciled with a man who would undoubtedly have had to countenance torture if the prosecution were right. In these circumstances I chose in particular a witness who had gone with Fatmir to the mountains with the thousands of people who were seeking refuge there. His name was Fadil Bajraktari.
‘He was the mountain teacher,’ I told the tribunal:
You may remember during an emotionally charged day, in which he recalled what had happened in that autumn period to the children, particularly the children, and the way in which shelter was provided by Fatmir Limaj; food provided by Fatmir Limaj and schooling provided by Fatmir Limaj. You saw the photographs of the makeshift tents and the conditions under which this was done. Medical supplies provided by Fatmir Limaj and, most of all perhaps, something which he has contrived to do throughout, and again it is in stark contrast to the allegations in the indictment, is to provide hope and inspiration. And he did it in a particular way for this individual.
I quoted his evidence:
When we went to the mountains I was feeling worse and worse and the medical team came from the Red Cross from Geneva and they told me they wanted to take me abroad to be cured; but Fatmir’s idea to have a school to teach the children made me refuse. I told those doctors that I won’t come. I decided to stay with the children. I proposed to them [the Red Cross] to take two young mothers who are about to give birth instead. I couldn’t leave those children there, even if I would feel well again and my kidneys would become better. I didn’t want that life. I wanted to be close to the children because my life was with them. Believe me, the miracle happened. I didn’t go to the doctor again. I didn’t need that surgery any more. The kidney stones, I passed them out myself. I didn’t need the surgery any more. That’s what happened to me. Today I’m fit as a fiddle. I don’t suffer any more. But it was Fatmir who taught me how to become a teacher; a teacher of those children: ‘The Teacher of the Mountain’, as they called me.
Haunting testimony of one individual, but of course hope and inspiration often springs not only eternal, but from the individual.
Many witnesses had spoken about the vision that Fatmir had for Kosovo, so I ended my address to the judges:
It’s a vision which of course some in politics, and Martin Luther King, would call a dream. Interestingly in a book published recently, entitled The Palace of Dreams, the first International Booker prizewinner this year, Ishmael Kadare, the Albanian writer, described a regime against which he’d set his own face (and one no doubt against which Fatmir Limaj would have set his face) – a totalitarian regime rather than a democratic one. In the book he describes the need for a Master of Dreams; in other words, those who have a facility to have visions that will govern the destiny of states. If I may end what I have to say to you with Fatmir Limaj’s own words about this vision: ‘I very much believe that if we don’t take the initiative of creating, building trust among us, nothing will succeed, no matter what UNMIC does. I regret to say, in Kosovo we should have brave people, people who are willing to assume responsibilities upon their own shoulders, and not to do things only for the sake of the international community . . . We should do things because this is in the interest and for the benefit of the people . . .’
In November 2005, Fatmir was acquitted by the ICTY, one of the very few defendants at The Hague who have ever been acquitted on all counts. It was a moment of great elation for the people of Kosovo, and it was also a moment for reflection and for reconciliation.
The day we won, Fatmir insisted that Karim and I return immediately with him to Kosovo to share in the victory: optimistically, a flight had been booked in case of this eventuality, and we departed in the late afternoon from Amsterdam via Vienna to Priština, where the welcome was enormous and overwhelming. The road between the airport and the main stadium in Priština was lined with people singing, shouting, laughing, crying and waving the national flag. It was an honour to witness tens of thousands of Kosovans in a tumultuous thanksgiving, which brought the country to a standstill.
We went straight into the stadium, but because of the huge crowds – and lest I got lost attempting to follow Fatmir’s swift passage towards the waiting audience of around 100,000 – I was lifted off my feet by two bodyguards, and ended up close by Fatmir’s side. His speech was spellbinding. As I don’t speak Albanian I didn’t understand a word of it, but then I didn’t need to, because the chanting and cheering at every word made clear what was meant. It was nothing short of pure exhilaration, and occasionally I would detect the shout ‘Mansfieldi! Mansfieldi!’
The motorcade continued from Priština, travelling through the night and covering the length and breadth of the land, visiting families and communities that had given Fatmir support during the war and the trial. No unmade, unmarked road was too far, no tiny hamlet too small, no family too few in number. At each point the greeting was the same – from an elderly, gravel-lined face that sprang to life, with tears of joy and an ever-spreading smile. The most poignant part was the nocturnal homage paid at the many war cemeteries of young men in their prime who had paid with their lives fighting for freedom and justice. They did not live to see the triumph, but it was palpable that night. Even autonomy for Kosovo lay within reach.
The next morning at Fatmir’s family home there were more ceremonies and celebrations, though I was a little worse for wear, having had no sleep and no change of clothing, as the whole visit had been totally unexpected. A marquee had been erected, with a table and chairs at one end, and the male elders of the family, including Fatmir, sat there for several hours receiving the good wishes and blessings of people from all over Kosovo. On some occasions Karim and I would be invited to sit with them while the exchanges were translated for us. The bonds of friendship were firm and unfailing.
Once the numbers dwindled it was time for a dance, something I always find hard to resist, even if I’ve never done it before and I’ve no idea what is expected. We formed a circle of thirty or forty people, and people could join in or drop out as they pleased. There was an infectious drumbeat that got us all going and I relied heavily upon my memories of Zorba the Greek, which – had they known – would probably not have gone down too well. What I hadn’t really noticed, owing to the euphoria that had anaesthetised all our senses, was that the ground beneath our feet had acquired a farmyard quality from the overnight rain and the heavy stamping. I had come straight from court in clothes that were not best suited for such hopping around and retained a certain country air all the way back on the plane.
The celebrations were momentarily dampened when we were put on notice that the prosecution, not satisfied with the result, were going to try and get Fatmir’s acquittal overturned on appeal, but that seemed to me a pretty hapless exercise, because it would be no more than a rerun of the trial, suggesting that the tribunal had not applied the proper standard of proof. It failed on all counts. In September 2007 came the announcement: ‘The Appeals Chamber finds that the Trial Chamber reasonably found that Fatmir Limaj does not incur criminal responsibility for any of the offences charged in the indictment.’ Today Fatmir is still a free man and is once again active in politics: he ran for Mayor of Priština in the elections held on 17 November 2007 and won, and at the time of writing is a minister in the government of the Republic of Kosovo.
All in all, it was a great job done by everyone – and it’s good to be able to say that now and again.
As a result of the experience at The Hague I feel invigorated and renewed. The ICTY court has shown the possibilities of both prosecution and defence. The ICC has now established an innovative unit to assist and support victims and their families, who have so often been neglected by the judicial process: I hope to be involved with this work one day. It is important that the principles that are being applied receive the necessary moral and financial support from the international community.
No longer is it so easy for tyrants, oppressors and murderers to evade justice. They may hide, but they can’t run any more, for fear of arrest.
It took a Spanish magistrate to finger General Pinochet, who – staggeringly – had been allowed into the UK by the Labour administration to visit Margaret Thatcher. Eventually, under the pretext of ill health, he was returned to Chile to face trial.
And in September 2005 Doron Almog, an Israeli general, arrived at Heathrow airport on an El Al flight.21 Between 2000 and mid-2003 he had been head of Israel’s Southern Command, responsible for operations in Gaza, which included the demolition of an estimated 1,100 Palestinian homes. Once again the British Government failed to make any plans for his detention. Daniel Machover is an Israeli citizen and a solicitor with the London firm Hickman Rose, who represents clients from the Palestinian Centre for Human Rights and individuals whose homes were bulldozed and whose families were bombed in Gaza. He persuaded the police that General Almog should be arrested if he set foot on British soil, the intention being to initiate a private prosecution under UK statutes incorporating the Geneva Convention. (The necessary legal paperwork and preparations had been assembled with the assistance of Steve Kamlish, QC, and Paul Troop from my chambers.) Someone tipped off the general and he refused to get off the plane, and the British police, fearing an armed confrontation, backed down, when all they needed to have done was prevent the plane from taking off. General Almog may have escaped on that occasion, but increasingly those who commit crimes against humanity in future may have to think twice before they do so, and certainly before they travel abroad.
The Charter of the United Nations22 reads:
CHAPTER I: PURPOSES AND PRINCIPLES
Article 1
The Purposes of the United Nations are:
1 To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
2 To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
3 To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
4 To be a centre for harmonising the actions of nations in the attainment of these common ends.
The long arm of international law stretches across national frontiers. It’s not foolproof and it’s not always fair, but without it the world would be a far poorer place.
I am ever optimistic.