by K

Gambling with life

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Under his eye.

I write this blog post with haste, anger, and fear, in response to the ACLU’s call for suing the state of Georgia and the state of Alabama for passing anti-abortion laws that defy the standard of Roe v Wade.

While, in that statement, the organisation is perfectly right and should act, it could be making a strong error in calculation that would reverse protections nationwide.

The case of the Republic of Ireland

As a quick note, this paragraph will cover, as its title indicates, only the Republic of Ireland, as Northern Ireland, despite being part of the United Kingdom, still criminalises abortion.

In 2018, Ireland voted “Tà”, yes to legalizing abortion across the emerald isle. To be more precise, voters repealed the 8th Amendment of the Irish Constitution, that provided acknowledgement of the life of the unborn child. The Irish State, under the protection of yet another divine god, and very much under the cramped hand of the Roman Catholic Church, had grappled with abortion under all its forms since its existence. Abortion, it said, was murder, and the law was only eased to cover a case where the life of the mother could be endangered. This vague language did not seem to include the severe risk of mental illness caused by an unwanted pregnancy, and once again, it took a death to shake the country to its core.

But before the untimely death of Savita Halappanavar on the floor of a hospital in Galway, came Case X. A 14 year old had been raped by a neighbour and became pregnant as a result. As is so often the case in the hypocrisy that is the criminalisation of abortion, women in Ireland traveled to England to receive the health care to which they are entitled, but the parents fell under an injunction not to have the procedure carried out. From there, a fracture appeared in Irish society, where rape and incest – horrific, heinous crimes – could result in unwanted pregnancy that could not be carried to term. Yet, the 8th Amendment remained relatively unscathed, scratched by the possibility to abort if the woman’s life was endangered, including by suicide.

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(c) Irish Times

But before the question could be put to Irish citizens on a referendum ballot, political work had to be done, in terms of education. This was not just scientific – the myth of the “foetal heartbeat”, for instance – it was legal. It took a ruling of the UN Committee Against Torture to outline the very reasons why denying women the right to bodily autonomy and self-determination amounted to cruel and unusual punishment. Ireland, that had practiced the sawing of pelvic bones to ease numerous pregnancies, was presented to the world as a country that refused to align with the modern world that, despite its European Union membership, had failed to attain the most basic standards of human dignity in its treatment of women. That it took that long to repeal the 8th Amendment is nothing to be proud of. The work of a new generation of Irish citizens assisted by fearless lawyers undeterred by the threats of excommunication and political violence is what brought Ireland to the situation it is today – a place where women and female-bodied folk can survive.

Pro-life?

Let’s not kid ourselves, the anti-abortion movement has never been in favour of human life under any form. US conservatives, for the large part theocrats, have long believed that the smallest form of government interference would be illegitimate and have restricted it to the point the United States is the only western democracy not to have socialised medicine, or universal healthcare, even in its narrowest interpretation – that is, covering pre- and post-natal care.

Women choose to have abortions for a plethora of reasons, none of them having to be justified to the general public or to the government, for that matter, but some of reasons may concern their general health during pregnancy and the health of their foetus. Because pregnancy is considered a pre-existing condition, meaning that women and female-bodied folks are born with the constant possibility of being pregnant, the financial burden is placed on families. Ectopic pregnancies, for instance, can be lethal; foetal abnormalities can result in miscarriage or stillbirths. This means that anti-abortion groups are regulating women’s bodies to the point of forcing non-viable foetuses to term. That is the opposite of life. It is, in fact, excruciating, physically, emotionally, and psychologically destructive.

Assuming a viable baby is born, there is no coverage for post-natal care, including child care for working families, free lunches even in pre-K schools, or mandatory vaccinations. Available everywhere else there is a working government, mandatory vaccinations have saved countless of lives from diseases we once could not avoid – smallpox, measles, etc. A fringe of conservatives would rather dispatch and display anti-vaccination protocols rather than save the lives of infants under the age of one, who cannot be vaccinated and are therefore exposed to live viruses.

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Parents of a Sandy Hook victim. (c) Business Insider

Should a foetus, then a baby, then a small child survive those trials in the United States, it is then sent to a school, where the occurrence of a shooting can stop this precious life in its tracks. At the time of writing, 15 school shootings had already taken place in the United States in 2019; the most harrowing of them all had been Sandy Hook, in 2012, where a mentally ill man stole his mother’s rifle and attacked an elementary school. What could have been a watershed moment in the history of a nation has resulted in a total of zero regulations on the use of firearms, and instead, children from the first grade are trained in regular mass casualty attacks drills, to duck, cover, and seek help in the very likely event someone might want them dead. Children who die as human shields in school shootings are heralded as heroes, not as victims of the failure of the state to protect their right to life.

As of right now, there should never, ever be a reference to the anti-abortion movement as “pro-life”; it is very much in fact pro-death – death of the expectant mother, death of the mother, death of the infant and death of the child, that, like any indoctrination nation, is placed in the hands of a non-denominational god that rules over the country where the government has failed to act.

The long grass and the Trump era

I very much doubt that Trump’s personal beliefs matter much in today’s debate. The man is not a political beast, has never been known to be outwardly religious, yet he has shown, over and over again, his utter contempt for the life and well-being of women, as represented in the countless lawsuits against him for sexual assault. Due to his status as a far-right extremist, Trump has courted anti-abortion conservatives’ votes as the rest of their positions aligned with his. There is no centre in the Republican Party; there are only those open to bipartisanship in the name of personal convenience and utterly incompetent men with a profound desire to see in the United States the new version of the British Empire it once battled to exit. The 2016 election was a manna from, well, heaven, in that it would provide Trump not with one, but two seats to fill on the United States Supreme Court. And then they were filled with judges that believed their position was more of deference to the executive than it did upholding the protection of the citizenry.

Brett Kavanaugh’s confirmation hearing took us to where we are today. His questioning on the role of jurisprudence and the case-law of the Supreme Court provided us with the answers Trump longed to hear: that a Supreme Court Justice was only there to affirm that the political position equaled the law of the land and few were the instances in which a Justice would find themselves removing power from the presidency. Should one believe that the appointment of Gorsuch was nothing short of political play, it at least had an inch of respect for the separation of powers, something Kavanaugh never even tried to conceal for one second. He came to overturn Roe v Wade, said just as much before Congress, and is now in the political majority on the hill.

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Justice Brett Kavanaugh during his confirmation hearing. (c) The New York Times

This was always where American conservatives were going to go. They needed a perfect alignment: a very conservative president, a decisive vacant seat at the Supreme Court, and a climate made hostile to reproductive rights for decades. Ever since the anti-abortion movement became a national security threat by bombing abortion clinics and murdering doctors, the presidency would need more than a traditional conservative in the Oval Office; it would need one with no regard for historical precedent and a deep-seated conviction that power is enough. Had President Obama been granted a second Supreme Court appointment, as it should have if it wasn’t for another extreme conservative as Senate Majority Leader, it would perhaps be slightly safer to present women’s self-determination before the Supreme Court. As for today, the right needs only one thing to achieve the theocracy they have always wanted: for a lawsuit on reproductive rights to reach the steps of the Supreme Court. It was handed to them on a silver platter by the American Civil Liberties Union (ACLU), filing against anti-abortion laws passed in the state of Georgia and Alabama, consecutively. Mississippi and Louisiana are in the wings. The ACLU is gambling on an open, law-abiding Supreme Court, something that no one has seen since the Kavanaugh appointment.

The gamble

In a tweet, the ACLU boasted that in a past litigation against the state of Alabama on the same grounds, it had won – with a hefty settlement and the continuous funding of Planned Parenthood. There are currently only three (!) abortion clinics in Alabama. But this case can’t possibly be presented as a solid precedent for this one. The country has changed. The judges have changed. Most importantly, the Supreme Court has changed. The Supreme Court, a judicial branch, separated from the other two, usually by a safe, large, and nearly inhuman footpath, has fully merged with its executive power. It has assumed its position as handing President Trump the decision he himself always wanted: accepting the Muslim ban, refusing to grant stays of executions, destroying the Alien Torts Act, and more. The dissents come from the three women that remain on the bench, powerless to stop this political imbalance that has characterized this very Court from long ago.

The US Supreme Court has always been more political than other high courts in other lands. Because the appointment of Justices is carried by the President and vetted by Congress, it can only be political; it can never be honestly considered to be in the interests of justice and constitution only. This utter lack of independence means the lifelong seat is dependent, by moral or financial (or both) debt, to the power that has appointed. As such, judges, regardless of the quality of their legal education – I’m thinking of the late Antonin Scalia – believe in the living instrument that is the law as one fluctuating and moving with the political tide, which is, in measure, true, but never in itself tasked to protect fundamental rights.

The United States never truly recognized jus cogens. Its Constitution does outline inalienable rights, including life and safety, but can be contradicted by amendments. International law is painstakingly invoked in US courts before untrained and sceptical courts that consider it illegitimate interference. Where Ireland could rely on the Special Procedures or thematic Committees of the Human Rights Commissioner of the United Nations, and the European Convention on Human Rights, the United States’ understanding of international treaty is theirs and theirs only. Let’s never forget the 1992 reservations emitted by Congress during the ratification of the Convention Against Torture. Most importantly, this very administration is withdrawing from international bodies more and more; if the move is so far more financial than legal, more political than transgenerational, it is likely to impact any future human rights argument in the United States. This is not a country with transnational or international bodies tasked with scrutiny of its domestic laws. It has only nine Justices, and six of them are not entirely convinced, if not fully convinced, that women are half-beings that should be governed by the men in charge lest they make a decision by themselves.

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Dr. Georges Tiller, murdered by anti-abortion activist Scott Roeder in 2009.

As such, the ACLU is taking anti-abortion laws before district courts, and no doubt, in no time, before a federal court and before this Supreme Court. This is exactly what conservatives have been waiting for: the opportunity to battle women’s rights before the Court, and win. Should those two (for now) lawsuits reach the Justices, Roe v Wade, the case that legalised abortion in the United States, will be overturned. There will be no argument that will provide for a swinging vote in this majority. If the ACLU is taking those cases before the Supreme Court, abortion will no longer be protected as a right across all fifty states. It will terminate a precedent that has always been a fundamental battleground for the American identity; the subject of endless political debates; the fracture that has led to the Wichita Divide, a terrifying book by Stephen Singular covering the civil war over abortion rights in Kansas.

Conclusion

Abortion is perhaps even more of a debate than gun rights. When it comes to the Second Amendment, abolitionists are extremely rare. We see advocates for gun control, but no demand for a ban on guns like it exists in Australia, New Zealand, or the United Kingdom. Abortion demands more than regulation: it is health care, and health care is a human right. In a country that does not even believe that vaccinations are the greatest invention for the survival of the human race of the 20th century, in a country that does not believe that its citizens should have the right not to die of a disease that can be treated simply for financial purposes, arguing that abortion is health care is likely to fall on deaf ears.

So we return to what abortion also is: it is the right for a woman and female-bodied folks to exist within their own bodies; to control their own bodies, and to give it the care it needs; to decide of their own fates; to choose the direction of their own lives; to be capable, as adults, to make the necessary choices for their safety, stability, health, and prosperity. For many women, the right to abortion is also what provided them with the capacity to have children they could care for. Abortion is health care, but is not just health care: it is, fundamentally, the right for a woman to her autonomy, to self-determination. That is a fundamental, inalienable human right. To deny a woman or female-bodied folks the right to make decisions about what is best for themselves is to deny it for everyone; but we live in a world where women, who make up 51% of the world’s population, remain the most vulnerable.

None of those laws were drafted or written by women.

None of those laws will be decided upon by women.
The gamble is that the political nature of abortion as it stands in the United States in 2019 might change by the time the cases reach the Supreme Court. It is not safe.

Litigation requires strategy, and for now, the strategy may be political before we can ensure that the law will only be presented as the law before a Court feels empowered enough to read the law.

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by K

France’s secret emergency

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Image: France 24

Over a year ago, in October 2017, French president Emmanuel Macron
fulfilled an election promise to end France’s two-year long state of emergency . The
emergency was declared in November 2015 by then president François Hollande
following the horrific attacks on the Bataclan and elsewhere in Paris that left over
130 people dead. However, while the emergency was lifted in name, the exceptional
powers it triggered live on.

Symbolism is at the heart of emergency powers, both at the moment of declaration
and the point at which the emergency is lifted. Declaring a state of emergency sends
the signal that the state is responding to the threat at hand; it tells the citizens that
the state can still protect them in the aftermath of an attack that tries to
fundamentally undermine this claim. In turn, ending the emergency tells us that all is
well and that the state is still committed to vindicating constitutional values like
human rights and the rule of law which are often negatively impacted upon in an
emergency.

Ending the emergency but not the emergency powers

Macron’s ending of the emergency thus sent the signal that he was a keen defender
of values like democracy, human rights, and the rule of law that are integral to
French constitutional identity. However, to temper fears that ending the state of
emergency would somehow lead to a perception that France was unprepared for the
next attack or that his administration was somehow weak on terrorism, new
legislation was simultaneously enacted containing a number of measures that would
previously have been incomprehensible. Symbolism too was fundamental to this new
legislation. The new law— To Strengthen Internal Security and the Fight Against
Terrorism — has the kind of stirring, ‘rally around the flag’ kind of name that is
becoming all the more common in the field of counter-terrorism. People could sleep
sound in their beds knowing that ending the emergency would not lead to a lapse in
security.

The new law has, however, come under criticism from a number of human rights
organisations such as Amnesty International and Human Rights Watch . The UN
Special Rapporteur on Counter-Terrorism and Human Rights has and Council of Europe have also voiced their concerns. Key apprehensions centre not only on
the unprecedented nature of these powers but also on the lack of judicial oversight
regarding their application. For example, one of the most worrying provisions in the
legislation is the power conferred on prefects in most government departments to
declare public spaces ‘safe zones’, limiting the power of people to enter and leave
these areas, to close places of private worship and to search private property.
Judicial oversight of these measures is also substantially limited. A comparison can
be drawn between this power and the measures contained in sections 44 and 45 of
the UK’s Terrorism Act 2000 which empowered police to establish ‘stop and search
zones’ where individuals could be searched without a warrant. Again, judicial
oversight regarding the establishment of these zones was minimal; so much so that
the European Court of Human Rights (ECtHR) found them to be in breach of the
right to privacy in Article 8 of the ECHR when they were used to stop and search a
journalist. The Court found that stop and search zones were being routinely re-
authorised on a rolling basis without any meaningful scrutiny by the Home Secretary
or senior police officers as to whether they were actually required.

The legislation also empowers prefects to issue what are called ‘individualised
administrative control and surveillance measures’ These require a person to remain
within a certain geographical area, to report periodically to a police station, to wear
an electronic tag and to report any changes in residence. All of this is done without
any of the usual judicial oversight. They too have a British comparison in the form of
Terrorism Investigation and Prevention Measures (TPIMs).

France’s permanent emergency

Thus while the official emergency has ended, powers that can be described as
‘emergency’ remain. For this reason, the idea that we are all now living in a
permanent state of emergency has become a common refrain from all parts of the
political spectrum. It is an argument that can defend the need for permanent
‘exceptional’ powers and simultaneously criticise the idea and legitimacy of these
powers as exceptional. Due to this paradox of ‘permanent emergency’, it appeared
that legally declared states of emergency had fallen out of fashion in the late
Twentieth and early Twenty-First Century. Instead, responses to terrorism post-9/11
tended to take the form of permanent legislative proposals rather than

constitutionally declared emergencies. The United Kingdom’s own experiment with a
declared state of emergency came to an end in 2004 when courts ruled that the
power to indefinitely detain non-British citizens without trial pending deportation
breached the UK’s obligations under the ECHR . Rather than returning the UK to the
status quo that existed prior to 9/11, Parliament introduced control orders which have
now become the aforementioned TPIMs. France is thus following a similar pattern
seen in other constitutional democracies.

The problem with shifting away from officially declared emergencies, however, is
that, a recalibration away from security and towards rights has not occurred; in fact,
the opposite is now the case. Much like the UK and the US, France is left with
emergency powers but without the heighted scrutiny and vigilance that an officially
declared state of emergency would be subject to. While the majority of powers
contained in the legislation are due to expire at the end of 2020, if the history of
counter-terrorist legislation elsewhere has taught us anything, it is that these powers
will be renewed beyond this date. One need only look to the US Patriot Act , passed
in the aftermath of 9/11 which was due to expire originally in 2005. In 2005, the
majority of these powers were made permanent with others, such as the provision
for roving wiretaps, extended repeatedly and still in effect to this day. A similar
pattern can be seen with many of the initially temporary powers introduced in the UK
during the conflict in Northern Ireland being placed on a permanent statutory footing
in the Terrorism Act 2000 .

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Image: Wired

Emergencies therefore are about much more than mere symbolism. Yet
understanding and focusing on the symbolism of emergency powers may hold the
key to ensuring their temporariness or, at least, justify continued vigilance and
monitoring of such powers. Permanent emergencies are not necessarily caused by a
perpetual threat but instead, by the subjective perspective of the decision-maker who
decides whether an emergency exists or whether emergency powers are needed.
Due to the symbolism of this decision, the political capital to be gained from such a
declaration demonstrate that the factors at play are not simply the existence of an
objective threat. For this reason, transparency is of fundamental importance and it is
on this point regarding the lack of judicial oversight and the lack of an officially
declared state of emergency, that France’s clandestine emergency is most worrying.

In turn, constitutional values, are not just symbolic; they should have real and
practical implications for the kind of state one lives in and on what the exercise of
public power can or cannot do. Constitutions express and protect the fundamental
values that give a state its identity. Democracy, human rights, and the rule of law are
all integral to the idea of liberté, égalité, and fraternité that French identity is
inherently bound to. When these values are permanently suspended, we are left with
exceptional powers, the legitimacy of which cannot be traced back to their
temporariness. There must instead come a point whereupon these fundamental
values that have been perpetually suspended are no longer fundamental.

Conclusions

Emergencies can have a profound impact upon the legal landscape of a state,
enabling what are often draconian and unprecedented powers. For this reason, it is
of fundamental importance to look beyond the declaration of emergency—or lack
thereof—to the actual measures that have been implemented. France has set out on
a path similar to that walked by the US and the UK. Whether such powers are
renewed in 2020 will be a key test of whether France will continue to follow in their
footsteps. States of emergency may have fallen out of fashion but emergency
powers have not.

Alan Greene is a Senior Lecturer in Public Law and Human Rights at Birmingham
Law School. His first book ‘Permanent States of Emergency and the Rule of Law:
Constitutions in an Age of Crisis’ (Hart Publishing, 2018) was shortlisted for the 2018
Society of Legal Scholars Birks Prize for Outstanding Legal Scholarship. He is on
Twitter at @DrAlanGreene.

by K

Shamima Begum and the case that isn’t

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Shamima Begum when she left for Syria, age 15.

I landed in London on Tuesday, February 19, to headlines splashed across frontpages announcing the latest egregious and obnoxious statements issued by Shamima Begum, a 19 year old British national who married an ISIS fighter when she was 15 and is currently in Kurdish detention. She gave birth a few days ago, and had been pleading for her return to the United Kingdom, without eliciting sympathy or seemingly care to. In response, the Home Secretary, Sajid Javid, revoked her citizenship. Between claims that Begum was a child soldier and the fear provoked by recent or upcoming releases of convicted extremists, the political climate doesn’t favour the return of foreign fighters. I will attempt to explain, first, why EU member states must repatriate their citizens and nationals from detention in Iraq or Syria; then, why Begum’s case is at risk of turning the actions of the Home Office into unlawful policy.

The politics of repatriating foreign fighters

While the phenomenon of foreign terrorist fighters (FTFs) is as old as war itself, and much older than this given acronym, ISIS’ appeal and recruitment has elevated it to a strategic asset. Foreign fighters were to help establish propaganda effective in their country of origin, as well as being capable of returning home to conduct more attacks. In the beginning, FTFs were flamboyantly burning bridges, so to speak, with their home country by destroying their passport on camera and dedicating the rest of their life to the so-called Caliphate. Once states – usually western – understood the possibility of their wayward citizens returning home to recruit, radicalize, and perpetrate crimes, the initial reaction was to turn to what is usually only an action of last resort: revoking the citizenship of the individual in question.

At the time, the action of stripping one of their citizenship was said to ease targeting killing into less grey areas; France, Britain, and Germany have all claimed “effective” drone strikes against individuals that were once citizens. Attempts to release the legal advice given to the respective governments on the legality of such strikes from a human rights perspective has been chaotic. From a political standpoint, revoking the citizenship is asserted on the basis of: a national security risk; an ideology contrary to the constitutional values; a desire to harm fellow citizens; all of which turning the FTF into someone so alien to the nation that citizenship or permanent residency is a bureaucratic attachement, not a civil one. However, by rejecting the duties any citizen has toward the country of its citizenship, the state is also doing away with its political and legal responsibilities towards the citizen, including the right to be tried before a court, on offenses that pre-exist and fall under domestic courts’ jurisdiction.

The role the media is playing with regards to FTFs complicates the matter further. A fighter for a group as despicable as ISIS with a body count not just in Iraq and Syria but in the rest of the world doesn’t elicit sympathy nor the willingness of the taxpayer to allow for a trial and prior, as well as likely subsequent, detention. Some crimes are too often left to tabloid media as a role of jury, judge, and executioner, depriving the law of its objective and universal nature. The media’s interest in Shamima Begum is endless: she is fascinating for being a teenage bride (she left for Syria at the age of 15); for having birthed a child in a Kurdish detention camp; for being seemingly remorseless. Without the presence of a lawyer, Begum is not advised to remain silent, and issues statement after statement depicting her attachement to ISIS’ values, not Britain’s. As I visited London last week, the headlines splashed across tabloids and daily newspapers was her praise for the Manchester bombing of 2017, that claimed over 80 lives.

Up until very recently, when unlikely ally Donald Trump enjoined EU states to repatriate their foreign fighters from refugee camps scattered across former ISIS territory, France’s policy was to let Iraqi or Kurdish authorities try and sentence ISIS fighters and their families. However, this poses a large humanitarian and human rights legal issue, that of the lack of a fair trial, inexistent or unreliable evidence, as well as the risks inherent to victors’ justice: expedited hearings, assumption of guilt, and application of the capital punishment, all of which are a violation of international human rights law. Western EU states have claimed, at some point or another, that it was up to Iraq to judge the perpetrators of crimes committed against Iraq and Iraqi people. While this is a perfectly valid argument, Iraq currently doesn’t have the resources to try both fighters and their families, has been documented with extending combatant status to women and children without supporting evidence, and is not in a position to provide a solid intelligence assessment on whether FTFs pose a security risk to other states. That is an information gathered by domestic intelligence in the US and the EU, where the judicial system is funded and robust enough to try terrorism crimes in civil courts, as well as extending charges to crimes against humanity if applicable.

For women and children, the situation is even more complex.

Shamima Begum: on trying foreign fighters

Shamima Begum left for Syria to marry an ISIS fighter when she was 15; she is now 19, in detention in a Kurdish refugee camp, just giving birth to a baby boy. At the time, she was still holding her UK citizenship, referring to it to ask for repatriation in Britain. Her baby would hold UK citizenship, rendering the Home Office responsible for the welfare of the child. Almost immediately, the Home Office stripped Begum of her British citizenship, rendering repatriation impossible, and placing the burden of her situation on Bangladesh. It is transparent that states are using the revocability of one’s citizenship as a means to escape their responsibility towards alleged perpetrators. Trying foreign fighters in a court of law is not an undue burden. Criminal justice has always been within a state’s purview, and trying terrorists a considerable element of countering terrorism itself. It is not even clear at this stage whether Begum was an active part of the ISIS scheme, as a combatant herself; a passive element in the Caliphate; or a teenager groomed to marry a fighter. There are as many scenarios as there are women in refugee camps or in detention, and assumptions of Begum’s status risk evolving into a blanket classification of “ISIS brides” as combatants.

According to Anamika Misra, a researcher in international humanitarian law based in London,

The Home Office is notorious for circumventing international law, making and implementing policies that are often in contravention of it. It’s not surprising at all that post UNSC Res 2178, which gave the idea of revocation of citizenship legal force, the UK Home Office has lapped it up- making British citizenship conditional to vaguely defined factors. Shamima Begum is not the perfect victim. In a society that attempts to dichotomise women as either vulnerable or violent, Shamima doesn’t fit the binary. Coupled with the stereotypical construction of Muslim women as docile and lacking agency, a stereotype that Shamima doesn’t adhere to, the complexity of her case is hard to digest by those in government or in media. In fact, it is possible to say that the way her case is being construed is in a distinctly “anti-feminine” lens, not deserving of the same care and assistance that is reserved for the “apologetic woman who has escaped from a violent armed group”.

In the absence of an investigation, speculation abounds as to the exact status of Shamima Begum and the hypothetical risk she could pose if released. What we know for sure is what we can eliminate based on other brides’ narratives, which certainly can’t be thoroughly assessed outside of on-site interrogation. Yan St-Pierre, founder of private consulting group Mosecon, rules out the child soldier qualification: Begum’s statements do not square with an element of coercion:

The modern interpretation of child soldier is mostly linked to coercion, stemming from numerous African conflicts, especially in Uganda, Sierra Leone or Liberia. Children being captured and then forced to fight, through conditioning, trauma, blackmail, threats, etc, in a militia or army. This is still the framework under which Boko Haram female suicide-bombers or the “Caliphate Cubs” are perceived. Therefore, a child soldier is essentially defined by the external factor that coerced him or her to fight. It is not a voluntary act. (…) With Shamima Begum, it’s clear cut. She chose to go there. She decided, planned and acted on her decision on her own. There was no coercion, which is different from persuasion. In my opinion, this rules out the argument of being a child soldier under the modern understanding of the concept.

This does not change the UK’s responsibility toward its own foreign fighters. Media commentary such as “she was never truly British” contribute to dehumanize or cast away foreign recruits in terrorist groups, creating a disturbing distance between their country of origin and the rights to which they are entitled. Regardless of the nature of their crimes, FTFs are entitled to a defense and a fair trial. It’s safe to say that given the content of Begum’s statements, she has not been legally advised; that the Home Office will not use its inflated £2 billion counter-terrorism budget to advocate in favour of justice. What Shamima Begum did during her four years in Syria remains unknown, and whether she poses a threat if released is currently in no state’s hands. For Kurdish authorities, detaining the bulk of foreign fighters and their families is a logistical nightmare. Ultimately, without the intervention of countries of origin, they will be released or placed in a prisoner exchange programme, without the possibility of interrogation, investigation, and a trial.

Let’s return to UNSC Res 2178, voted in 2014, calling on member-states to address the then-growing threat of foreign fighters. The contentious resolution extended the demands to counter terrorism as well as countering extremism to prevention; it expected the reinforcement of international judicial cooperation in para.4 (emphasis mine):

Calls upon all Member States, in accordance with their obligations under international law, to cooperate in efforts to address the threat posed by foreign terrorist fighters, including by preventing the radicalization to terrorism and recruitment of foreign terrorist fighters, including children, preventing foreign terrorist fighters from crossing their borders, disrupting and preventing financial support to foreign terrorist fighters, and developing and implementing prosecution, rehabilitation and reintegration strategies for returning foreign terrorist fighters;

The large portion of the resolution concerns movement and financing of terrorism and extremism; as is so often the case, States read into a Security Council resolution the parts that fit them politically and did away with the rest, including the constant underscoring of the respect of human rights law. It must be repeated that countering terrorism is a human rights law obligation, and that terrorism in no way constitutes an exception to the rule of law as applicable in every concerned jurisdiction. One could point at a void in the wording of the resolution: it speaks of returning foreign fighters, not repatriation. The resolution does not ask of States to repatriate and try their foreign fighters, and as such each State is left with the choice of facing hundreds in their airports requiring triage and detention, or the humanitarian disaster unfolding in detention camps.

It was only a few months ago, in December 2018, that an Addendum to the 2015 Madrid Guiding Principles addresses the issue of FTFs beyond intelligence-sharing, border control and violent extremism. In part III, the text does call for fighters to be brought to justice:

4. In its resolution 2396 (2017), the Council reiterates that all Member States shall ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in support of terrorist acts is brought to justice; recalls its decision that all States shall ensure that their domestic laws and regulations establish serious criminal offences sufficient to provide the ability to prosecute and to penalize the activities described in paragraph 6 of resolution 2178 (2014) in a manner duly reflecting the seriousness of the offence; urges States, in accordance with domestic and applicable international human rights law and international humanitarian law, to develop and implement appropriate investigative and prosecutorial strategies regarding those suspected of the FTF-related offences described in paragraph 6 of resolution 2178 (2014); and reaffirms that those responsible for committing, or are otherwise responsible for, terrorist acts and violations of international humanitarian law or violations or abuses of human rights in this context must be held accountable.

The idea of accountability is, as in the paragraph above of this present piece, more of a question of politics than legal policy. Western States would however be hard pressed to find a sympathetic ear to the argument that their domestic legislation does not have sufficient elements to prosecute, in a satisfactory manner, any alleged perpetrator of terrorism. This is simply a question of allocated resources and the populist argument such crimes could never have found echo within their own citizens, educated in their schools and raised in their civil forum.

What about women and children?

Shamima Begum gave birth in detention, while she was still holding British citizenship. British law requires that action be taken in the best interest of the child, which at this point could hardly demand separation from the mother. A child can not be punished for the crimes of its parents, especially when the parents have not even been tried for those crimes. An ideal scenario would see the repatriation of Begum, with her child, to the UK, where she would be charged according to the Terrorism Act 2000 – the new counter terrorism bill is still being worked on in the Lords – and the child, kept alongside her until appropriate foster care can be considered by social workers. It is inconceivable that in 2019, Britain could not find it to bring before a court a teenager without representation, assistance, simply the vague consular assistance available to any British national regardless of status.

France has also operated a large change in policy, after two years being paralysed by the logistical nightmare of assessing returning persons on a case by case basis. It is important to state at this stage that deportation is a possibility for individuals holding dual citizenship after being found guilty of crimes against the nation, but revoking citizenship is not a tool in the regular counter-terrorism arsenal. It poses consequential risks under international human rights law, that of statelessness; it is an intelligence failure, if the person is returned to an area where they are likely to return to combat or violence; it is a dereliction of legal duty, as it illustrates a plain refusal to hold perpetrators to account, to show victims the possibility of redress, and demonstrate to the wider public that there is, in fact, a rule of law applicable to all.

 

 

by K

From 1949 to 1951: Fundamental Conventions – Part 1

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Children from the Kindertransport arriving in London, January 1939. Photo: Gamma-Keystone via Getty Images

It’s been two long years of fearing the worst for the western world and its usual lack of consideration for the consequences on the rest of the planet. The rule of law was once again not flouted, as some have claimed, but entirely disregarded and dismissed at the whim of a narcissistic, petulant child boasting about his blatant ignorance. When it comes to violations of the prohibition of torture, the legal community, practitioners and scholars alike, have long accepted their battle against US interpretations of UN treaties would never end. When it comes to the first Conventions to have emerged in the wake of the United Nations’ birth, however, one does not need an advanced post graduate expertise in law to understand. A cursory glance at history can cover the first layer of understanding, and this is perhaps what is most infuriating in the case of Donald Trump’s “ban”, the executive order banning access to US soil to refugees and asylum seekers from certain countries of the Middle East and North Africa region. This week marks two years since lawyers planted desks and chairs inside airports all over the United States.

It’s impossible to dissociate the establishment of modern international norms from diplomatic history. The date at which founding treaties were adopted by the General Assembly matters. They reflect a need for a response from the international community represented by and at the UN; they aim to enforce the respect of rights that were considered fundamental and which violation led to unimaginable horror; they mirrored the expansion of the criminal law norms established post-Nüremberg. The pacifism precipitated by the bloodshed of World War One was not enough to make the League of Nations sustainable. It was the industrialization, the institutionalization of mass-scale murder of the Nazi regime that forced a new world order upon a shattered, dismantled group of empires that had suddenly found their limits. This order imposed itself beyond European shores: the United States and Russia would join as permanent members of the newly minted Security Council, and Japan would become a focus for disarmament – a battle still fought to this day.

We know of this history. It is not that far behind. Survivors and witnesses may die at a quick pace, but they’re still here, still sharing their experience. Nothing is more difficult to witness than the unraveling of civilian protection. First part of the Hague Conventions in 1899, what is defined as a civilian object and who would be exempted and immune from targeting in war has expanded and detailed over time. The most vulnerable, however, remained refugees. Internally displaced persons (IDPs) and external refugees started flooding Europe, already, as soon as the first concentration and extermination camps were liberated by, respectively, the Red Army and allied forces. In a memorable, heart-wrenching memoir, french author, resistant and politician Marguerite Duras details awaiting the return of her partner from Dachau in Paris (1); she narrates, in harrowing details, pacing down the halls of the ad hoc ministry of political prisoners on the Quai d’Orsay, until the first convoys of deportees were driven for registration and return. Their skeletal bodies, their empty eyes, the contagious sickness and the lethal hunger had turned human beings into ghosts. They were incapable of speech, they were unfamiliar with touch. One man, who was later identified – too gaunt to be recognized – as the son of a prominent political figure of post-war France was sat on a bench and wept for hours. Their clothes were barely fitting their bodies, the skin covered in sores. The inhumanity of what those men had experienced did not then exist legally. Later would come “crimes against humanity”, “genocide”, the crime of forced displacement. Men and women returned from death factories, from labour camps designed to slowly kill. They were laid down on the flatbed of trucks after being made to walk for consecutive days and nights as the Wehrmacht was driven away by allied advances, and shot in ditches to escape documentation. Many, in fact, never returned. They were political prisoners: communists, socialists, dissidents. They were ethnic targets: Jews, Roma, Armenians. They were, simply, not fitting the idea of the society that Hitler wanted: they were gay, they were artists, writers, thinkers, professors, lawyers. They were unerwünchte: the undesirable.

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Photo from MSF At Sea. In one weekend of spring 2018, MSF boats and personnel managed to successfully rescue over 6,000 people from the Mediterannean. Their actions have been criminalised by France and more recently, Italy.

The European Union, in its quest to contain the refugee crisis that has inflated since 2012, forgets that it was built on the corpses of the internally displaced. Extermination camps in Poland and labour camps in Germany and Austria, triage centers in France and in Belgium have led to millions of IDPs. From their specific needs arose specific protections: the prohibition of statelessness, the medical coverage, resettlement, and access to political and civil rights in the adopted country. There was widespread and legally acknowledged recognition that without the consent of other states that would have deprived those at risk from their citizenship, therefore protection, the scale of the mass killing could have been diminished. There was consensus around the need to redistribute the number of refugees around the continent in order not to strain resources already in the red due to post-war reconstruction. It did not happen overnight. First, the recognition of the suffering that had been inflicted upon deportees needed to be uncovered, exposed, and prosecuted in order to establish an objective, justiciable truth. Second, the role of the press in covering what was an unprecedented horror on that large a scale played a considerable role in eliciting support and empathy for survivors. In an era of counter-terrorism and removal of civilian protection in the name of pre-emption, the issue remains as salient as ever. Third, the enforcement of the principles of the 1951 Convention is as necessary as ever, and needs no amendment. The Convention is not obsolete, certainly not impossible to adapt. This crisis was several years in the making, exacerbated by wars that the countries tasked with accepting refugees are waging. The glaring violations are both predictable and fixable, and require political commitment, not legal compromise: “In view of the increasing recognition of the fundamental significance of the Convention and the Protocol for the protection of refugees and for the establishment of minimum standards for their treatment, it is important that their provisions be known as widely as possible, both by refugees and by all those concerned with refugee problems“, according to a 2010 introductory note by the UNHCR.

Exposing the crimes of the Assad regime: a battle of narratives

The path to being recognized as a refugee goes through the admission and acknowledgement on the part of the international community that severe danger and threat is posed in the country of origin. The claim that refugees have alternatives to their displacement or could be safely returned to their country of origin, as seems to be the case for the US or for the UK, undermines the legitimacy and legality of their status. The principle of non-refoulement has been created specifically to avoid such situations in which endangered populations would be placed at risk of disappearing. Recommendations such as hiding one’s sexual orientation in Afghanistan poses a grave violation. The issue remains that the supposed safety of the country of origin rarely is. The existing violence can be perceived as politically legitimate action on the part of the sovereign state, the threat posed by non-state armed groups can be said to have been exaggerated, and the position of human rights organizations to have been manipulated. Every single one of these instances has taken place when it comes to assessing the situation of refugees from Syria and Iraq in order to decrease the number of claims. The UNHCR thus finds itself in the position of asserting established facts over and over again to obtain protection from the states with the existing resources to welcome, foster and process refugee and asylum claims, despite the fact that the denigration of human rights defenders’ statements has occurred before.

CIJA is a legal non-profit based in an undisclosed location in Western Europe and collects what is now literal tons of evidence concerning war crimes and crimes against humanity committed by the Assad regime in Syria. Their source include field research conducted by NGOs, testimonies from refugees, documents extracted by defectors. In an interview with NBC in March 2018, Chris Engels, the group’s deputy director, says: “We have stronger evidence than we had for any past conflicts, any past tribunals, any past international justice efforts“. The Syrian government functions thanks to a solid bureaucratic system which allows for authenticated and verified documentation of actions that can qualify as war crimes. The human rights lawyers are assisted by a team of 140 researchers, including 40 “document hunters”, according to the same NBC article, “whose mission is to extract material produced by the regime, authorizing the detention, torture, and execution of people for suspected anti-government activity.”

Gathering evidence on crimes committed by all parties is an increasingly difficult task. Removing documents from conflict zones is a lethal endeavour; reaching the ears and hands of legal organisations requires reaching safety first. For any “Caesar” defector, thousands are lingering in refugee camps without a hope to see judicial redress for their suffering. Refugees, an otherwise endless source of intelligence, are criminalized by nation-states, turning them away stoking immigration fears, highlighting the infiltration by armed groups and general ignorance of the horror of war. If, in 1951, the vast majority of Western states had experienced some form of armed conflict – from military drafts to fight overseas in the US to aerial bombing campaigns in the UK – war is, in 2018, remote, distant, and fought by technology more than flesh-and-blood troops. Straying from the sociological issue of desensitisation, a look at 1951 principles make them still applicable in 2019 and the changing national security landscape.

Syrian White Helmets. Photograph by Sultan Kitaz / Reuters

Suddenly the otherwise real threat of non-state armed groups (NSAGs) justified violations of the fundamental law that is the protection of refugees, as well as jus in bello dating from before 1951 – namely the 1949 Geneva Conventions on the protection of certain professions during armed conflict. This includes journalists, but especially aimed at protecting humanitarian actors – from ad hoc medical support to ICRC hospitals – from being targeted. Humanitarian staff operate under a duty of equality and neutrality, meaning the law respects their medical oath to treat every patient with the same degree of care regardless of their combatant status. It is a violation of the law of war to target medical actors because they have accepted armed groups as patients, and absolutely unacceptable to label humanitarian staffers as complicit to war crimes because they have complied with their duty of neutrality toward patients.

Those smears have targeted the White Helmets, the ad hoc civilian organisation that filled the void where the ICRC could not access Syrian civilians or besieged enclaves. The repeated falsehoods have led some to seek asylum in Jordan, despite being the only asset for survival. Hospitals supported by MSF were also targeted in Afghanistan, the justification for this egregious violation also being the work of humanitarian actors. National security has somehow dug a hole for itself as an exemption to the Geneva Conventions and the 1951 Refugee Convention. The texts are not obsolete: the history that brought them into existence is only repeating itself. Hybrid warfare is an evolution, the way national security is an intelligence-led form of conflict prevention that has rapidly taken on a self-sustaining shape. Assuming human suffering and state interference has not changed since 1951 is simply historical ignorance, rather than a political argument that deserves attention.

What the three parts of this blog will tackle is not the supposed legal vacuums, but the fact that the post-Cold War world, proud of its international institutions and claiming to be resting on diplomacy before conflict, has hindered the enforcement of legal protections. Rarely has a conflict illustrated the doubt placed in the Security Council, the shattering authority of the ICRC, the quivering balance of powers and the shifting towards isolationism as Syria did. If Palestine has demonstrated the world was willing to go forward with manufactured exceptions, Syria has, since 2011, proven we had either given up on international law, or that we needed to return to fundamentals. I am in favour of the latter.

 

(1) Marguerite Duras, La Douleur, P.O.L. ed., 1985.

 

 

 

 

 

 

 

 

 

by K

Thank u, next

Every year, I do a round-up of my favorite or most exemplary pieces of writing, journalism or essays, for that year. You will find the usual ten below with one honorable mention, but I have to state it was extremely difficult to make choices considering the following:

  • Fake news have considerably increased and their dissemination on social media undermined the work of journalism
  • Journalism has never been more needed at a time of heightened conflict, yet journalists keep being detained or executed
  • Legitimate questions on journalistic ethics especially in the wake of terror attacks force the raising of the bar
  • The profession remains precarious for too many

You can read the 2018 analysis of the state of press freedom in the world at rsf.org and consider donating to Article 19, Index on Censorship and the Committee to Protect Journalists.

Without further ado and in no particular order,

Dedicated to all British citizens having to explain this event to their non British counterparts

The myth of Brexit as punishment

Jonathan Lis, 2 November

Jonathan Lis is now a regular feature on the BBC, al-Jazeera, and any other outlets through which you can see his face express an impressively diverse and complex range of emotions, from seething anger to simple contentment. From sidelines commentator with a positive vision outside of the crackling divide, Lis has become the dux civis of Britain. He writes mostly on the Prospect Magazine and Politics UK with outstanding clarity and deep commitment. This specific article perfectly encapsulates the need to blame externally for self-inflicted wounds, a side effect of a melting identity.

Chilling testimony in Tennessee trial exposes lethal injection as court-sanctioned torture

Liliana Segura, 5 August

A lot is already contained in the title. I have taken to always share the minute details of an execution on social media so as the reality of the death penalty may be more accessible through my extremely short and limited platform. Segura, typically on a criminal beat, has covered the death penalty for as long as I can remember. She relentlessly tracks down every significant element in appeals and even discovery; describes and quotes the final legal recourses before the start of the execution. In this specific article, tackling compounding pharmaceuticals, Segura performs here the work of a human rights lawyer losing faith in a system that seems to only depend on it. The death penalty is a violation of UNCAT, the additional protocol to the ICCPR, and the 8th amendment of the constitution.

The political power of Aretha Franklin

Jamil Smith, 16 August

In the year the world mourned John McCain and Jean D’Ormesson, it was the death of an icon that defined an era rife with dereliction of duty. Aretha was of course more than a voice, she needed no last name, and her very presence amongst us was already a gift in itself. This isn’t a case of hegemony, as we have experienced with political leaders such as Ariel Sharon. Jamil Smith replaces the cultural and musical icon to the politics she embraced, embodied, and conveyed. He restores what Aretha accomplished through successive decades of survival for Black America. When Aretha died, we lost a piece of this history the Trump administration seeks to erase. Fortunately, we have this.

A United Ireland isn’t what it used to be

Fintan O’Toole, 26 May

I started this round-up with Lis, but no one has ever beaten Fintan O’Toole at Brexit commentary. It was hard to pick just one of his and I strongly suggest reading others and following him on Twitter. Brexit, the most Britain event to ever Brit itself out of Britain by the British has dragged the otherwise peaceful but internally dramatic Republic of Ireland with them. The result was a public display of ignorance of Northern Ireland; a breakdown of diplomatic relations; and the possibility of an Ireland United once more, however premature. O’Toole takes us to the forgotten corner of this eventuality with the anger of an Irishman scorned and the creativity of an yet another Irishman granted a Nobel prize.

The Islamic State is the god that failed in the Middle East

Murtaza Hussein, 21 January

So many have written about ISIS parsing it becomes a job in itself. So many have written about terrorism debunking myths is now a literal profession. Murtaza Hussein belongs to the reliable category, a seemingly dying breed that sees abject and absurd violence for what it is, analyses politics, policies and perception for what they do to us and for one another. His writing voice, a cutting-edge yet patient one, picks small stories and turn them into a big picture in areas few in his circles know. Few have been to Bosnia to research extremism (*) , or visited special prison quarters in France. By visiting ISIS-occupied areas and trying to understand their poor attempt at governance, Hussein may touch on what has made the group so lethal for the west.

(*) meant to mention my outstanding colleague Jamie Brown whose work in 2018 consisted in doing just that

The Little Stoner Girl

Robert McLiam Wilson, 2 August

I have been mad at Robert McLiam Wilson since I had to slam his last book, “Manfred’s Pain”, shut. How dare he rob us of his creativity? As much as I would have liked the title to be bestowed upon me, Robert McLiam Wilson is very much Belfast’s prodigal child and has elected to relocate to Paris, now writing for Charlie Hebdo. But this summer, Wilson, who has stopped smoking – those familiar with his work will need to keep breathing – gave us this gift of a short story. It wasn’t breaking news, it was offered to us like a grade schooler hands over handpicked flowers to someone he likes: spontaneous, the initial meaning of the word “cute”, and seasonal. But never worry: Belfast remains tar and grime and so is this story of his first love. As mine continues to block me on twitter, reading my favorite writer remember his first crush on a girl throwing stones was the Proust Madeleine moment I had been waiting since he deserted the position of public writer, one I’m sure he never wanted. This was the one and only element of sheer absurd beauty I could find.

The execution of Billy Ray Irick

Steven Hale, 10 August

Executions have become so prevalent in certain states that they rarely make it past the local press. They are picked up in case of a stay by SCOTUS, or when the criminal press corps decides the degree of violence in a botched execution is deserving of public interest. Steven Hale, currently working for he Nashville Scene, has coveted executions with a voice that isn’t (or shouldn’t be) neutral; there is a profound and simple, relatable sentiment that writing could alleviate the suffering of losing lives that failed to be full lives before they came before a reporter’s notepad. This execution was particularly difficult and most of the elements national reporters or lawyers such as myself relied on were in his work. Hale deserves to be read far and wide, and his commitment to covering the deadly business of state-sponsored murder should never falter.

All-American Nazis

Janet Reitman, 2 May

2018 marked the year when many had to reckon with the threat of domestic terrorism, the one that was barely addressed before the tiki torches of Charlottesville, VA; the threat that barely dared speak its name. Janet Reitman had chased far right extremists where they were hidden, came with photos, testimonies, the clamour and the clangour of a movement that won’t be stopped especially now it’s essentially present in the White House. This work exists and is low permanent because the reporting on it establishes those movements for what they are without privileged language. Reitman did something else: she exposed (in a piece for the New York Times) the lack of action on the part of law enforcement. The breaches and infiltration are there. We must see them.

Inside Yemen’s humanitarian catastrophe

Alex Potter, 18 September

Alex is an extraordinary human being, and I don’t say that only because I was once one hour late to lunch (#SavetheMTA). A photo reporter specialised in conflict and a trained conflict nurse, Potter captures in her photos the colors that surround her subjects, with a degree of respect and distance rarely afforded to victims of terrorism or war. The war in Yemen is a historical aberration that was entirely preventable; Alex trawled streets and villages, and had turned to appealing to twist is left within us to see Yemen the way it could be and should be, were it not for entire generations wiped off the map. A recipient of many prizes, supporting Alex’s work is supporting not just her, but her subjects, which is the least we can do.

When you can’t go forward and can’t go back

Anna Silman and Sarah McVeigh, 12 December

On my side of the pond, freedom of movement is established as one of the four pillars that create and support our system. It is currently under extreme duress, but it is here nonetheless. In the US, a belligerent and foaming-at-the-mouth Trump has made the end of movement the hill he will die on. America is no longer the country of the wretched, the poor, and the needy; it is a country for lazy draft dodgers collecting Nazi memorabilia. Migrants – regardless of their legal status, which doesn’t define them – had a life before they came to the Rio Grande. This life gave them no choice but to leave it. For those women, too often forgotten from debates, those for whom war is at home, those with nothing left they could possibly use, our doors should be unconditionally open. This piece is the face of migration in 2018. May it rest with us.

And now for the honorary mention:

Remember the women of the Montreal massacre by more than just their names

Anne Thériault, 6 December

There is so much I adore about this Canadian writer, currently working on the secret lives of queens and female leaders in Europe (“queens of infamy”). She is also a wonderful advocate for mental health and depression. Please do give her twitter a follow, but read this: the victims of Marc Lépine, who opened fire on female students of the École Polytechnique in 1989, was motivated by deeply rooted misogyny. We see this now in the “incel” movement, this far right entitlement that women belong to men and should not have agency in functioning societies. The attack of course marked minds and has changed the perception of security Canadians experienced until then – but women who were present to receive an education, and in a discipline that until today is still male-dominated, deserve a name and a story. Anne Thériault recognizes that by being where they were today, those women were feminists. They died as such. Circling back to Janet Reitman’s piece above, those elements must be flagged. And we won’t cower, but we won’t forget, either.

by K

Ambassador of Sparta to Byzance

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Me. Johannes Ambre (l) and Me Robert Badinter (r) during the Patrick Henry trial, 1977

Some may have noticed the quote “ambassador of Sparta to Byzance” in my twitter bio. It isn’t mine. It’s from French author Sophie Chérer, who named a book after that line.

The book was meant for young adults and I read it at a formative time: I was fortunate  enough to know what I wanted to be doing in my early teens. Contrary to most, happily or stressfully drifting away during the last few years of innocence, Marianne, the protagonist of the book, is entering law school the way we – and I’m sure most of us – did: bright, starry-eyed, committed, and most of all, unshakeable in our righteousness. It can’t be held against us. Law school chips at, if not entirely destroys, much: self-esteem, sense of worth, precious discipline (or lack thereof), and relationships. Perhaps the most tangible issue of them all is the lack of sleep. I recently had a nightmare about Article 11 CPP and woke up drenched in sweat.

I don’t remember the book in its minute details and it’s maddening that I don’t have it with me right now. I remembered Sophie Chérer hasn’t named her law student character Marianne for no reason. Marianne is the symbol of the French Republic and the rule of law; she has been painted by Delacroix (and tattooed on me by Patrick Conlon) guiding young revolutionaries across the Parisian barricades to achieve freedom. Marianne is thus depicted as a ferocious and unstoppable god-like force, draped in Greek robes, her breasts exposed to the elements (including brimstone) but invincible: no one can kill an idea. And so Marianne, at the tender age of 18, sits on the wooden planks of an amphitheatre next to 300 to 600 people. My first class, of I remember – apologies, it’s been a while! – started with constitutional law.

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Ariana Grande channels one of Harvard Law’s greatest graduates

 

This introduction being over, let’s ponder what the title meant. Byzance is known for its luxury, wealth, abundance, and perhaps to our Judeo-Christian eyes, their eventual downfall. Sparta, in the other hand, is a much smaller nation of warriors, dying for their ideologies, observing rules of housing and food regimes based on frugality and conservation. Why would one represent Sparta for all it is belligerence, to Byzance, a place where a man can easily fall into the most simple pleasures in life? Temptation is strong, and Sparta offers nothing with which even the most noble of man can feel conflicted. So here’s the kicker: the urban legend goes that in the late 1980s, at an exam (couldn’t even be sure if those were finals or leaving cert), a question was asked: would you rather rule Sparta or Byzance? And the person replied with the quote you now know so well.

It worked for Marianne the way it worked for us human rights lawyers around the world. We could have easily crashed: law school is most definitely an exercise of survival of the fittest. We could have easily switched predominance in discipline: there is no money in what we do. But Marianne – again, a fictional character – chose to contact the one she considered her mentor, someone in whom she truly believed besides his trials and errors. She found Jacques Bidalou, known as “the red judge”, revoked from his functions in 1981, not for naught: he was found guilty of breathing the sacrosanct separations of power. Bidalou lost his seat and his hermine again in 1987, where until then he took on cases as important as the Rainbow Warrior and attempting to try Mikhaïl Gorbatchev for crimes against humanity.

I went into law because of two inspiring men as well. Robert Badinter, still alive and still very much an outstanding legal mind, never ceases to battle to reaffirm fundamental protections on the rule of law (Badinter abolished the Courts of National Security in 1981, same year he became Attorney General and abolished the death penalty). The second man is still practicing and sharing his energy and values around the world: Ben Emmerson QC, the “leviathan of his generation” to borrow a phrase, resonates much more than his, since it perfectly extended to mine, and will continue long after this, from the Maldives, Litvinenko, Abu Qatada and his role as special rapporteur. Unlike Marianne I never called and ask for assistance. She was right to do so.

Incensed by what was happening to Jacques Bidalou, Marianne followed in his footsteps until she obtained her masters degree in law. Very quickly, Bidalou took her under his wing and obtained the opportunity to be on the ground, on the field. Having committed her life to be a judge for children affairs, she reconsidered entirely her vision of how law is taught and how it is practiced. That book made enough of a mark on me that at my disturbing, canonic perhaps, age I can entirely relate and wish I had taken my yellowing copy with me on school. This complete disconnection between the law we are taught- and I’m just not talking about Roman law as well but also Common law – is to learn without understanding, to approach codification and structure without their impact. I have been extremely lucky to have encountered a professor – Prof. Susan Perry, not to name her – and having it hammered in my not so malleable skull that no one practices human rights law from a chair. 

And I never did.

 

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Amnesty International observers during the protests in Ferguson, MO, 2014.

We are all ambassadors of Sparta to Byzance. We are all carrying and sharing a message from extreme rigidity and codified exemption – see, the JSA 2013 – to a place where rules are made for men and by men, with retaliation at its core. If we, lawyers, and our colleagues, magistrates, are greeted by their neighbors by violence, and are therefore enemies of the people, the crisis had been in front of our eyes for years. Lawyers are ambassadors between authoritarianism and materialistic imperialism because the law is above and beyond. It was written so the street doesn’t judge, so public opinion doesn’t deliver a sentence. We are not victims of our professions; we don’t suffer them like one would a sacerdoce. We believe in our task, our role, within ourselves, and within societies.

Marianne needed a mentor because she was a young and confused L1. Legal education, formal training and critical thinking are all pillars of a strong education. We are looking at those compasses that we’ve had the glory to meet and read because human rights lawyers are a dying breed and even controversial figures such as Bidalou can change the course of a life. To the Conor Gearty, Martin Scheinin, Meg Satterthwaite and Fiona de Londras of this world, we think you for putting this responsibility on us first.

 

by K

Revocability and the damage done

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If you wonder why Donald Tusk looks so upset, it’s because he was addressing the issue of the Irish Border. 

After so many attempts to obtain clarity on Article 50, the Court of Justice of the European Union has laid down the gauntlet this Tuesday morning: the process of withdrawal from the European Union can be revoked unilaterally.  It means that, should the UK decide to remain, between now and 29 March – or the end of the extension period, if there is one – it can simply do so by the process planned for in its constitutional requirements.

This changes everything, except for Brexit commentariat.

The Luxembourg Court has made its Advocate General’s opinion known really quickly and ruled in the nick of time for debate on the current iteration of the Brexit deal, scheduled to take place today. Shortly after the ruling came down, the Prime Minister cancelled the debate and the vote, postponing it to an undefined date between now and 21 January, thus entirely stalling a process that has already dragged on for almost two years. For someone accused to have declared the UK’s intent to leave prematurely, those negotiations sure feel endless.

From the EU side, since this is coming from the continent, the expectation of a radical U-turn  has fallen flat, quickly deflating with the defeating sound of an old balloon. The UK is not working toward finding consensus on the preferred mode of revocability (an Act of Parliament, or an instructed decision by the Prime Minister) and a reminder that, while Big Ben is currently mute, the clock is currently ticking on Brexit. It no longer has to. It could be the will of the people of Great Britain and Northern Ireland to stay within the comfort zone of the European Union, maintaining the same status (including opt-outs) as before the trigger. Theresa May kept her seat after a confidence vote that showed once more how unstable and feeble leadership was. The future remains uncertain.

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Theresa May, looking for a way out

So why aren’t we discussing the process of revocability? We hear about the vote on the deal, about Arlene Foster’s denial of the irrevocability of the Irish backstop, and some obsolete rumblings from Jacob Rees-Mogg. Public lawyers continue to lose their senses over the impossible task of the Withdrawal Bill, and security experts prepare for a possible data-sharing “cliff-edge”. It is as if the immense and, for some, formerly improbable Christmas gift on a titanium plate handed by CJEU was yet another hair-pulling piece of the Brexit puzzle, and not the deus ex machina of that thriller. It was briefly mentioned by Taoiseach Leo Varadkar after a meeting with Theresa May, frought with tension, in a country that felt insulted, reminded of its recent past as a vassal colony, that emerged strong and stable. The Taoiseach, unlike the CJEU, placed the possibility of revocability directly into the hands of Parliament.

Let’s consider the possibility the UK will return: this would be nothing short of a political humiliation. Theresa May’s leadership would have been nothing short of abysmal. The legacy of her successive governments has already been the butt of a joke that even alleviated the United States’ current predicament for a minute. It dug a ditch so wide and so deep between her and her European partners it could take a generation and much good faith to be rebuilt. Thousands of qualified workers have left Great Britain for fear they could no longer raise their families there; banks and other high earning firms have relocated to other EU member-states after losing financial passporting. The UK is now registering a pathetic economic growth from 0.1% to 0.4%, the sterling pound has crashed and remains instable, entirely tied to political news on the status of negotiations.

Trust is what’s been most undermined. Trust in a government that could see a project through; trust in leadership that preserved civil and human rights for the entire population regardless of religious or ethnic background; trust in a future, not just for the next generation but the one currently forming the backbone of the working class; trust that education, history, and information mattered and democratic stability was paramount. There was trust in public interest over self-serving decisions. There was trust on the EU side, too: that the UK would negotiate in good faith; that it would preserve bilateral agreements, such as the Good Friday Agreement; that it would behave with dignity, respect of the plurality of identities that form the bloc, and be considerate of past conflicts, social sensibilities, and, dare I say, the law. Revoking the Article 50 trigger could be the best option for the United Kingdom today. Donald Tusk has repeatedly said it would never oppose a return of the once prodigal child to the fold; but the damage has been done, and Brexit has exposed the reality of its relations with other member states. Northern Ireland has rarely felt so alienated and endangered since 1998. Germany has suffered the indignities of barely digested Godwin’s Law. The UK would swallow all its pride – but there is dignity in acknowledging one’s mistake; there is nothing more democratic than asking of a government that it serves its people.

The Wightman decision also provides for stability that the UK hasn’t known since June 2016: should it revoke its intent to leave, there could be no re-enactment of that sad event anytime soon. Article 50 was unprecedented and even with this way out, is not meant to become an example for any other state with similar desires. Should the UK decide to stay, it will stay, with its incorporated body of law, with ECHR membership, referrals to the Court of Justice, and a say in the decisions conducted by the European Union. Is pride worth not reconsidering it?